author: Mr. Chief Justice

text:
    Robert L. Dulaney v. Alex. M. Payne et al.

      Filed at Springfield January 16, 1882.

    1. Actions—splitting entire cause of action. A party can not divide an entire demand or cause of action, and maintain several suits for its recovery; and a recovery for a part of an entire demand will bar an action for the remainder, if due at the time the first action was commenced.
    2. Same—as to several distinct causes of action. Where a plaintiff has several distinct causes of action, he may elect to sue upon one, or any one of them he chooses, and he has the further election to unite in one suit, under certain restrictions, several causes of action.

      3. SAME'—what are distinct causes of action—of a note with interest payable'in installments. Where a promissory note is given, payable in two or more years, with interest payable annually, or semi-annually, the holder may, at the end of each year, or half year, as the case may be, sue and recover the interest, and this will be no bar to a suit on the note when it.shall become due.
    4. Where a note is given, payable in one year, with interest payable semiannually, and a suit brought two years thereafter to recover the installments of interest then due, and a recovery therein, such judgment will be no bar to a subsequent action on the note to recover the principal. In such case, the promise to pay interest is a distinct cause of action from the promise to pay the principal. Each promise constitutes a distinct cause of action.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Edgar county; the Hon.. C. B. Smith, Judge, presiding.
    Messrs. Golden & Wilkin, for the appellant:
    A note payable in one year, with interest payable semiannually, comprises two distinct contracts,—one to pay the principal sum, and the other to pay the interest. A judgment after the principal is due, in an action for interest, does not merge both contracts. Freeman on Judgments, sec. 238; Andover Savings Bank v. Adams, 1 Allen, 28; Sparhawk v. Wills, 6 Gray, 163; Florence v. Jennings, 2 C. B. (N. S.) 454.
    The contract ought to he construed precisely as if the words “till paid” had been inserted therein after the words “from date. ” Cecil v. Hicks, 29 Gratt. 1; S. C. 26 Am. B. 391.
    When a note is given, with interest annually, at ten per cent, the payee may sue for and recover interest at the expiration of each year. Walker v. Kimball, 22 Ill. 527.
    Several promissory notes, and other instruments and promises executed at the same time, and in reference to the same subject matter, are frequently referred to as constituting one contract. Davis v. McVickers, 11 Ill. 327; Bailey v. Cromwell, 3 Scam. 71; Duncan v. Charles, 4 id. 261.

      The theory of interest, when there is no express contract to pay it, is, that it takes the shape of damages for detention. Walker’s Am. L. (5th ed.) 438.
    Much confusion has resulted from confounding interest by contract with interest by operation of law. The latter is^ strictly in the nature of damages. Selleck v. French, 1 Conn. 32; Adams v. Bank, 36 N. Y. 255; Brackett v. Edgerton, 14 Minn. 174; Adams Express Co. v. Milton, 11 Bush, 49; Mason et al. v. Callender et al. 2 Minn. 350; Madison County v. Bartlett, 1 Scam. 67; Sedgwick on Dam. 440.
    The contract rate of interest must govern both before and after the note matures. Brannon v. Hursell, 112 Mass. 63.
    The demand of principal and interest upon a covenant to pay a specified sum with interest, is divisible. McClure et al. v. Cole, 6 Blackf. 290; Venney v. Iddings, 2; Chitty, 234.
    The rule is settled in Illinois that the conventional rate of interest obtains after maturity as well as before, and so long as the debt “remains a note. ” Etnyre et al. v. McDaniel, 28 Ill. 201; Phinney v. Baldwin, 16 id. 108.
    The same rule prevails in Massachusetts. Brannon v. Hursell, 112 Mass. 63.
    Mr. O. B. Ficklin, and Mr. Jas. A. Bads, for the appellees
    A plaintiff can not divide an entire demand, or cause of action, so as to maintain several suits for its recovery, and a recovery for a part thereof is a bar as to the remaining portion. Camp v. Morgan, 21 Ill. 257; Casserly v. Forquer, 27 id. 170; Matthias v. Cook, 31 id. 87; Lucas v. Lecompt, 42 id. 305; Gaddis v. Gleason, 55 id. 522; Chicago and Northwestern Railroad v. Nichols, 57 id. 464; Clays v. White, 83 id. 542; Rosenmueller v. Lecompt, 89 id. 213; Nickerson v. Rockwell, 90 id. 463; Bogart v. Williams, 3 Barn. & Cress. 235; Bendernagle v. Cocks, 19 Wend. 206; Secor v. Sturgis, 17 N. Y. 548; Pinney v. Barnes, 16 Conn. 428; Shepardson v. Cary, 29 Wis. 34; Covington v. Sargent, 27 Ohio, 237;
      Baird v. United States, 6 Otto, (96 U. S.) 432; Wait’s Actions and Defences, vol. 6, p. 776.
    In a suit upon a judgment, the debt and costs are held to be one entire cause of action, and not severable. Camp v. Morgan, 21 Ill. 257; Clays v. White, 83 id. 541.
    A contract to build a certain number of box cars at a fixed price, is an entire contract, and not severable. Chicago and Northwestern Railroad v. Nichols, 57 Ill. 463.
    A contract for one year, and continued by the parties for another year, is one entire contract. Rosenmueller v. Lecompt, 89 Ill. 215.
    That a promissory note is an entire contract, and can not be divided: Matthias v. Cook, 31 Ill. 87; Howe v. Bradley, 19 Me. 31; 3 Parsons on Contracts, (6th ed.) 188; Miller v. Bledsoe et al. 1 Scam. 531; Buckner v. Thompson, 11 Ill. 564; Camp v. Morgan, 21 id. 255; Nickerson v. Rockwell, 90 id. 464.
    Opposed to the principles established by the foregoing authorities are three Massachusetts eases: Badger v. Titcomb, 15 Pick. 409; Sparhawk v. Wills, 6 Gray, 163; Andover, etc. v. Adams, 1 Allen, 28.
   Mr. Chief Justice

Craig delivered the opinion of the Court:

This was an action of assumpsit, brought by Robert L. Dulaney, against Alex. M. Payne, Ed. Harlan, W. T. Martin, Lyman Booth and Dennis Legare, on a promissory note, executed by the defendants, which read as follows:

“$4262.55. Twelve months after date we, or either of us, promise to pay R. L. Dulaney, or order, the sum of four thousand two hundred and sixty-two and dollars, with ten per cent interest from date, interest payable semi-annually, for value received, this 5th day of April, 1877.”

The defendants interposed a plea of former recovery, and the only question presented by the record is, whether the judgment read' in evidence on the trial of this issue constitutes a bar to a recovery on the note: If it does, the decision of the Appellate Court affirming the judgment of the circuit court was right, and will have to be affirmed. If it does not constitute a bar, then the judgment of the Appellate Court will have to be reversed.

.It appears, from the evidence, that all of the parties to the note, except Martin, on the 3d day of April, 1879, in due form executed a power of attorney authorizing and empowering Thos. G. Golden to confess a judgment at the next term of the Clark county circuit court, in favor of Dulaney, for the amount of the interest due upon the promissory note. Martin, having refused to join in the power of attorney, was brought into court hy summons, and a declaration having been filed at the April term, 1879, of the court, judgment by default was rendered against Martin, and by confession against the other parties to the note, for the sum of $869.50, and costs.

There is a slight discrepancy between the judgment and amount of interest due on the note at the time the judgment was rendered, hut from the evidence introduced it is apparent that'the judgment was for no part of the principal debt, but merely for the interest then due upon the note, and whether the judgment was a little more or less than the real amount of interest, can not have any material bearing on the case. The law is well settled that a party can not divide an entire demand or cause of action, and maintain several suits for its recovery. It is also clear that a recovery for a part of an entire demand will bar an action for the remainder, if due at the time the first action was commenced. Nickerson v. Rockwell, 90 Ill. 460, and cases there cited.

The question then arises whether the principal of the note, and the interest accruing thereon semi-annually, is, within the meaning of the law, an entire demand. If it was, the plaintiff was bound, when he brought suit for the interest, to include the principal sum due on the note in the action. If it was not, then he had the right to sue for and recover the interest, and afterwards recover a judgment for the principal. As is said in Phillips v. Bank, 16 Johns. 136 : “It is in the election of the plaintiff, if he has distinct causes of action, to sue upon all or any of them when he pleases, and he has the further election to unite in one suit, under certain restrictions not now necessary to be stated, several causes of action; but the defendant can not compel him to do this.”

What constitutes an entire or single demand is often a question of much difficulty, and the decisions of different courts are not in harmony on the question. Where a note is given payable in two or more years, with interest annually, at a specified rate per cent, the holder of the note may, at the end of the year, sue and recover the interest. Walker v. Kimball, 22 Ill. 537; Goodwin v. Goodwin, 65 id. 497.

The principle, doubtless, which led to this doctrine was, that the promise to pay interest, although connected in the same contract with a promise to pay the principal debt, constituted a separate and distinct cause of action. If this.be so, it would seem to follow that a note like the one in question contains two contracts,—one to pay the principal; and the other the interest,—although each originally 'grew out of one and the same transaction. In the discussion of this question, Freeman on Judgments, sec. 238, says: “A note payable in one year, with interest payable semi-annually, comprises two distinct contracts,—one to pay the principal sum, and the other to pay the interest. A judgment after the principal is due, in an action for interest, does not merge both contracts.” If'the author is correct in his position, the judgment recovered for the interest in this case would be no bar to this action brought to recover the principal. In support of the text the author cites, in a note, two cases, Andover Savings Bank v. Adams, 1 Allen, 28, and Sparhawk v. Willis, 6 Gray, 163, which fully sustain the doctrine announced. In the case of Sparhawk v. Willis, the question was whether a judgment ■ for one year’s interest on á note for $1000, payable in one year, with interest annually, was a bar to a recovery of the principal, and the court held that it was not. In deciding the case the court said: “The contract thus assumes a very simple form: ‘I promise to pay ■ the debt in one year; but if I do not, I will pay the interest at that time, and so at the end of each and every year until the debt is paid.’ Being a promise to pay the debt at one time, and contingently to pay the interest 'at another or some other times, it must be construed as containing distinct promises, giving several causes of- action, and these being several in their origin, no subsequent event can make them one and entire.” The case of Andover Savings Bank v. Adams, is to the same effect. It is there said: “The promises to pay the debt at one time, and the interest at another, are several, and afford several and distinct causes of action.” These two cases are directly in point, the question presented and decided being the same as is involved in the case under consideration.

.In Parsons on Contracts, vol. 2, p. 636, a contrary doctrine is announced. The author says: “One holding a note on which interest is payable annually or semi-annually, may sue for each installment of interest as it becomes payable, although the note -is not yet due; but after the principal becomes due the unpaid installments of interest become merged in the principal, and must therefore be sued for with the principal, if at all. ” In support of the rule announced, the author, in the note, cites Howe v. Bradley, 19 Maine, 31: In the case cited it was held that annual interest can not be recovered by a separate action after the principal has become due. This decision was „made by a divided court, and although it may sustain the rule laid down by Parsons, we are not inclined to follow it, believing, as we do, that the rule established by the courts in Massachusetts is the better doctrine, and more calculated to further the ends of justice. If an action may be maintained to recover annual interest before the principal sum becomes due, as this court has in a number of cases held it may, no good reason is perceived which will preclude a recovery of the interest after the maturity of the principal debt as well as before. Secor v. Sturgis, 16 N. Y. 548 has been cited as an authority bearing on the question. It is there said: “The true distinction between demands or rights of action which are single and entire, and those which -are several and distinct, is that the former arise out of one and the same act or contract, and the latter out of different acts or contracts. ”

While we fully recognize the ability and learning of the court which declared the doctrine in the ease cited, we can not sanction the rule declared. Several promissory notes may, and often do, grow out of one and the same transaction, and yet they do not constitute an entire demand. On the contrary, the, holder may maintain separate actions for the recovery of each. For instance, A may loan B $6000, and as evidence of the debt take three promissory notes, of $2000 each. Now, while the notes all grow out of one transaction and one contract, they are several, and a separate action may be brought upon each one of them. The fact, therefore, that the two agreements in the note in question, one to pay the interest at a specified time, and the other to pay the principal, grew out of one and the same contract, does not establish that the demand is single and entire.

Several decisions of this court have been cited by appellees as authority to sustain their position. Upon an examination, however, we do not find any of them in point. In the most of the cases cited the questions before the court involved a construction of sec. 49, chap. T9, Bev. Stat. of 18T4, which requires all demands which do not exceed $200 to be consolidated in actions before justices of the peace. What may have been said in such cases can have no bearing here. The note upon which this action was brought provided that the interest should be paid semi-annually, while the principal debt became due in one year from the date thereof. It is but reasonable. to presume, from the nature of the transaction, that it was contemplated by the parties, although the note was by its terms due in one year, that it should run for a longer term, but that the interest should be paid every six months. Under such circumstances it would be manifestly unjust to hold that a judgment for the interest after the maturity of the note would bar a recovery of the principal, and we .are unable to sanction authorities which establish such a rule. If a separate action may be maintained upon each one of several notes which grow out of a single contract, upon the same principle and for the same reason a note containing a promise to pay interest at one time and the principal debt at another, may be the foundation of one action to recover the interest, and another to recover the principal.

The judgment of the Appellate Court will be reversed, and the cause remanded.

Judgment reversed.

Mr. Justice Scholfield took no part in the consideration or decision of this case.


source: Caselaw Access Project

author: Mr. Justice Walker

license: Public Domain

text:
    James M. Booker v. The Venice and Carondelet Railway Company.

      Filed at Mt. Vernon January 18, 1882.

    1. Right of way—sufficiency of petition as to inability to agree with owner. An allegation in a petition by a railway company to condemn land for a right of way, that the petitioner “has not been able to acquire the title, nor the right of way over the Bind, by purchase or by voluntary grant from” the defendants, though not formal, is substantially sufficient under the statute, as showing an inability to agree as to the compensation to be paid.

      2. Same—as to condemning strip exceeding one hundred feet in width for right of way of railroad—waiver of objection. A judgment condemning a strip of land one hundred and twenty feet wide for a right of way for a railway will not be .reversed because the land condemned exceeds one hundred feet in width, where it does not appear from the record that the additional twenty feet was not necessary, by the pleadings, and no such objection was raised before the court below, either by demurrer or reasons assigned in arrest of judgment. The objection not being made below, must be considered as waived.
    3. Same—measure of compensation to lessee of premises. In a proceeding to condemn land for a right of way, the jury allowed a lessee of the land taken, whose lease had three years to run, the amount of rent he was to pay per acre for the1 whole term, as to the land condemned, while he contended that for gardening purpose it might yield much more. There was no proof that it would be used for such purpose, and no other damages shown, and it appeared that the lessee had the opti'on of terminating the lease at any time: Held, that the verdict would not be set aside as against the evidence, and that future profits of the land taken were too uncertain to be depended upon as a measure of damages.
    Appeal from the County Court of St. Clair county; the Hon. F. H. Pieper, Judge, presiding.
    Mr. Frank B. Bowman, for the- appellant.
    Messrs. G-. & G. A. Kcerner, for the appellee.
   Mr. Justice Walker

delivered the opinion of the Court:

The Venice and Carondelet Railway Company presented a petition to the county judge of St. Clair county, in vacation, for the purpose of condemning the right of way on which to construct its track over certain lands in that county. The lands are specifically described by metes and bounds. • They are alleged to belong to John B. Bowman, and that James M. Booker claims a possessory right in one of the lots, which it is alleged will continue until the first day of September, 1881. It is alleged that the company was not able to acquire the title or the right of way over the premises by purchase or voluntary grant from Booker or Bowman. The petition prays for a summons, and that the dama ores be ascertained according to law. The county judge indorsed an order for a summons, and fixed the time for a hearing on the 24th of June, 1881, and the same was filed on the 10th of that month, and a summons was issued, returnable as ordered. The sheriff returned that he had served Booker on the eleventh, and Bowman on the fifteenth of the month. Booker filed an answer, in which he denies all of the allegations in the petition, except that he has an interest in lot 47 of Cahokia commons. He alleges that he holds a written lease for the same, dated March the 1st, 1880, for the term of five years; that he is residing thereon, and claims that the taking of the right of way will damage him $1000. ■ A hearing was had as to Booker on the day set for trial, but as to Bowman the cause was continued until the 27th of the month. The jury assessed the damages sustained by Booker at $70. Motions for a new trial and in arrest of judgment were entered, but overruled by the court, and a judgment that petitioner might enter on paying the $70. An appeal was prayed and granted, and the -record is brought to this court, and errors assigned by appellant.

It is insisted, that this being a statutory proceeding, according to uniform authority every requirement of the statute must appear by the record to have been pursued, and nothing can be presumed in its favor; that under this rule the petition is fatally defective in failing to allege that the compensation to be paid for or' in respect of the property sought to be appropriated or damaged for such purpose, could not be agreed upon by the parties; that this is the requirement of the statute, and an inability to agree upon the compensation to be made for the damages sustained, is indispensable to give the court jurisdiction of the subject matter of the dispute; that the allegation that petitioner “has not been able to acquire the title, nor the right of way over the land, by purchase or by voluntary grant, from said Bowman or Booker,” is not a sufficient compliance with this requirement of the statute. We do not understand that strictness requires the averment to be in the precise language of the statute. Any allegation that is equivalent is all that strictness requires. From this allegation there can be no other inference than that the effort had been made, and the compensation could not be agreed upon by the parties. If it had, then the company would then have been able to acquire the right of way by purchase. Had the compensation been agreed upon, that would have been to purchase the right; if an agreement had been reached that the company should have the right of way without compensation, that would have rendered the proceeding unnecessary; but such an agreement is negatived by the allegation. The averment necessarily implies that an effort had been made, and that an agreement for compensation could not be arrived at by the parties, and they were unable to agree that damages should be waived. We regard the allegation, although not formal, as being in substance sufficient.

It is next urged, that the condemnation was of a strip 120 feet wide, when the statute only authorizes a strip of 100 feet in width to be condemned for right of way, and the petition proceeds for right of way, and the. proceeding must be confined to the petition. The 20th section of chapter 114 authorizes the condemnation of 100 feet for right of way, and a greater width, when necessary, for cutting or filling, and it does not appear that the additional 20 feet were not necessary for that purpose. Again, no such objection was raised by demurrer, or on the motion in arrest of judgment. This objection is not found in the reasons assigned for arrest of judgment, and it must be considered as waived, and can not be urged for the first time in this court.

It is urged that the company .failed to prove that the parties had been unable to agree upon the compensation for the damages arising from the appropriation of the strip for right of way.' Westerman, the engineer of the road, testified, that he tried to purchase the strip for the railway company from Booker, but they had been unable to agree. This evidence was, we think, sufficient to prove that the parties were unable to agree upon the compensation that should be made.

It is claimed that the jury found against the evidence in assessing the damages. It seems they allowed appellant the sum per acre that he agreed to pay his landlord as rent for the ground. There were about three and a half acres, and the lease had three years to run, and there were witnesses who testified that for gardening purposes each acre would net $25. It is a complete answer to say there is no evidence that it would be used for such purpose, nor that it could be rented for such a price for that purpose. Again, the lessee had the option of terminating the lease as to any portion, or all, of the premises, at any time he might choose, by paying Bowman $4 an acre; and all know that all theories about the production of the soil depend on so many contingencies, that future profits are uncertain, and can not be depended upon as a measure of damages. These were, all of them, considerations for the jury, and they seem very properly to have allowed him simply the amount of rent he was liable to pay his landlord. It is said, they should have allowed him other damages he sustained. It is enough to say, none other were proved.

We perceive no error for which the judgment should be reversed, and it is affirmed.

Judgment affirmed.


author: Mr. Chief Justice Craig

text:
    William Schuck v. John Gerlach, Sheriff, etc.

      Filed at Mt. Vernon January 18, 1882.

    1. Bedemption—what judgment creditor may redeem. Where land is sold under a decree of foreclosure on a bill in which the heirs of the deceased mortgagor are made parties, a judgment creditor of one of the heirs may redeem from such salé such heir’s interest, and have the same sold under his execution.
    2. Same—may be of an undivided interest. Under the present statute one of several joint owners of land sold under' execution, or decree of foreclosure, may redeem whatever interest he has in the same, and so also a judgment creditor of a joint owner may redeem the interest of his debtor.
    3. Same—former decision. The ruling on this question in Dwrley v. Davis, 69 Ill. 133, that a judgment creditor of one of several persons owning land as tenants in common, could not redeem from an execution sale of the entire premises, as to the interest of his debtor, by paying a proportionate part of the amount for which the land was sold, is no longer the law, under sec. 26, ch. 77, Bev. Stat. 1874, p. 625.
    4. Same—as to part not previously redeemed. A judgment creditor of a deceased mortgagor, whose claim has been allowed against the estate of the mortgagor, may, after two-fifths of the premises have been redeemed and sold by judgment creditors of the heirs, redeem the remaining three-fifths upon a special execution from the county court.
    5. Same—irregularity in execution will not defeat redemption. An execution was sued out of the county court on a claim allowed against the estate of a deceased mortgagor, in the name of the assignee of the claim, under which the assignee, as a judgment creditor, redeemed land of the mortgagor sold under decree of foreclosure: Held, that while it was irregular to issue the execution in the name of the assignee, it was not void, and that in a collateral proceeding it could not be attacked, and that the redemption under it' was valid.
    6. Same—favored. Bedemptions are looked upon with favor, and where no injury is to follow, a liberal construction will be given to redemption laws, to the end that the property of the debtor may pay as many of his liabilities as possible.
    Appeal from the Circuit Court of Randolph county; the Hon. William H. Snyder, Judge, presiding.

      This was a petition for a writ of mandamus, brought by-appellant, to compel the execution by appellee, sheriff of Randolph county, of a deed for the lands described in the petition, under substantially the following facts:
    At the September term, A. D. 1879, of the Randolph county circuit court, one Roxana Phillipps obtained a decree of foreclosure against James B. "Vinson, Mary A. Vinson, Margaret Vinson, and Elizabeth Kelley, the heirs of Alfred L. Vinson, deceased, and Robert H. Mann, administrator of his estate, upon, a trust deed given by Alfred L. Vinson, in his lifetime, upon the lands. At a sale under the decree, by the master in chancery, on the 24th day of November, 1879, Roxana Phillipps purchased the lands. On the 23d day of February, 1881, one Thomas A. Simpson, having an allowance of record in the county court of Randolph county against the estate of Alfred L. Vinson, sued out a special execution, for the purpose of redeeming these lands, and deposited with the appellee the amount of money due Roxana Phillipps, whereupon appellee issued a certificate of such redemption, and levied the special execution upon the lands. At the sale under this execution, on the 25th day of March, 1881, Sehuck, the appellant, purchased the land, and appellee issued to him a certificate of purchase therefor. On the 19th day of March, 1881, one Sarah Phillipps caused an execution to issue out of the office of the clerk of the Randolph county circuit court, upon a transcript judgment in favor of Ellen Cragan, and against James B. Vinson, and deposited with the appellee one-fifth of the amount of money due appellant, for the purpose of redeeming the undivided one-fifth of said premises from appellant, whereupon the appellee levied upon the undivided one-fifth of said premises, and sold the same as the property of James Vinson, the defendant in such execution. On the 20th day of May one Samuel S. Simpson, having a judgment against. Elizabeth Kelley, and Stephen Kelley, her husband, in the Randolph county circuit court, caused execution to issue, and deposited with appellee one-fifth of the amount due appellant, for the purpose of redeeming the undivided one-fifth of said premises from appellant, whereupon the appellee levied the execution upon the undivided one-fifth of said premises, and sold the same as the property of Elizabeth Kelley, one of the defendants in the execution. On the 19th day of May, 1881, one Albert Phillipps, assignee .of one Walter Lanham, who had an allowance against the estate of said Alfred L. Vinson, deceased, sued out a special execution for the purpose of redeeming the undivided three-fifths of said premises from the appellant, and deposited with the appellee three-fifths of the amount due appellant, whereupon appellee levied upon the undivided three-fifths of said premises, and after giving notice sold the property.
    Appellant denied the right of these various persons to redeem the lands in the manner stated, and refused to accept all sums of money deposited with appellee, and on the first day of June, 1881, demanded of appellee a deed for the premises upon his certificate of purchase, which deed appellee refused to execute, and appellant brought this petition for a writ of mandamus to compel the appellee to execute the deed.
    Mr. James J. Morrison, for the appellant.
    Messrs. Johnson & Horner, for the appellee.
   Mr. Chief Justice Craig

delivered the opinion of the Court: .

It appears from the record that Alfred L. Vinson, the mortgagor, after the execution of the mortgage, and before the filing of the bill to foreclose, in August, 1878, died intestate, leaving as his only heirs his mother, Mary A. Vinson, and James B. Vinson, a brother, and Margaret Vinson and Elizabeth Kelley, his sisters. These heirs, and the administrator of the estate, were made parties defendant to the bill. A decree was rendered, the mortgaged premises sold, but. no redemption was made within a year, and the first question presented by the record is, whether a person holding a judgment against either of the defendants, James B., Mary A., Margaret Vinson, or Elizabeth Kelley, can be regarded as judgment creditors within the meaning of the statute, and entitled to redeem from the foreclosure sale under the mortgage.

We do not regard the point presented an open question in this State, but on the other hand, the right of such a creditor to redeem as a judgment creditor, within the meaning of the statute, was fully settled in Lamb v. Richards, 43 Ill. 312. In that case, Richards, after having executed a mortgage on certain lands, conveyed the same to Lamb. The administrator of the estate (Richards having died) and Lamb were made parties defendant to a bill to foreclose the mortgage, a decree of foreclosure was rendered, the land sold, and after the expiration of twelve months the judgment creditors of Lamb were allowed to come in and redeem from the sale under the mortgage as judgment creditors, within the meaning of the statute. Here, the Vinson heirs, who were defendants in the foreclosure proceedings, occupy precisely the same position that Lamb occupied in the case cited, except . that here they acquired title to the mortgaged premises by descent, while in the case cited Lamb acquired title by purchase from the mortgagor, which can make no difference. The Vinsons occupy the same position that they would had they obtained title by deed from the mortgagor. Lamb v. Richards must, therefore, be regarded as conclusive upon the question that a creditor holding a judgment against one of the Vinsons had the right, under the statute, to redeem from the mortgage sale as a judgment creditor.

It is claimed that redemption could not be made of an undivided interest,—that the whole sum for which the land sold, with interest, should have been paid, in order to effect a redemption. The position of appellant on this point, under the statute of 1845, would no doubt be correct, as held in Durley v. Davis, 69 Ill. 133; but under our present statute a joint owner of land sold may redeem whatever interest he has in the land sold, upon payment of his proportion of the amount which would be necessary to redeem the whole. So, • also, a judgment creditor of a joint owner may redeem. (Sec. 26, Rev. Stat. 1874, p. 625.)

It is next urged, that the attempted redemption of Albert Phillipps of the undivided three-fifths of the land purchased by SchuCk was unauthorized. After appellant had made a redemption from the mortgage sale, and become the purchaser of the premises himself, judgment creditors of the mortgagor, Alfred L. Vinson, had sixty days allowed them to redeem from him. Before Phillipps undertook to make a redemption, two-fifths of the premises had been redeemed, and when he, as a judgment creditor, undertook to redeem, three-fifths only of the land remained subject to redemption. But no reason is perceived which would prevent him from redeeming such portion of the lands as had not been redeemed, if he saw proper to do so. He was a judgment creditor of the original mortgagor, and under the statute he had a right to redeem any part or portion of the lands which had not been redeemed when he undertook to effect a redemption. The statute gave him the right of redemption, and the fact that other creditors had preceded him and redeemed a portion of the lands sold, did not deprive him of the right conferred by the statute, so long as any of the lands remained unredeemed. The claim upon which Phillipps redeemed was allowed in the county court, in the name of Walter Tia.nha.rn, and assigned to Phillipps. It was no doubt irregular to issue the special execution in the name of Phillipps, but the execution was not for this reason void, and in this collateral proceeding its validity can not he questioned by appellant. Redemptions are looked upon with favor, and when no injury is to follow, a liberal construction will be given our redemption laws, to the end that the property of the debtor may pay as many of the debtor’s liabilities as possible. Here the full amount of the redemption money due appellant under the law is in the hands of the officer, subject to his order, and he can suffer no loss by the decision of the circuit court holding that the lands were redeemed in conformity to the statute.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Dickey

text:
    The People ex rel. W. D. Kerfoot v. Jacob Gross, Clerk Circuit Court, etc.

      Filed at Mt. Vernon January 18, 1882.

    Fees of clerks of circuit courts—in counties of third class—where several defendants plead jointly. Under sec. 33, chap. 53, of the Revised Statutes, relating to Fees and Salaries in counties of the third class, if one of several defendants, acting separately from the others, wishes to enter his appearance, or to plead, answer or demur, in his own behalf, he must, before doing so, pay a fee to the clerk of $1.50; but when two- or more defendants wish to enter their appearance, or to plead, answer or demur jointly, they are to jointly pay $1.50, and not each to pay that sum.
    This was an application in this court by the relator, against Jacob Gross, clerk of the circuit court of Cook county, for a mandamus to compel him to receive and file a certain paper entering the appearance of a number of defendants in a -certain cause in chancery, upon payment of $1.50 for all, which had been tendered to the clerk and refused by him, he demanding the- payment of the further sum of $36, and claiming he was entitled to the same under the statute, as fees for the defendants named in the writing, to be paid in advance to him as clerk of the court.

      ■ Mr. W. T. Burgess, for the relator.
    Mr. Consider H. Willett, for the respondent.
   Mr. Justice Dickey

delivered the opinion of the Court:

The decision of this case depends upon the construction to be given to see. 33, chap. 53, of the Devised Statutes, on the subject of Fees and Salaries in counties of the third class. So much of the statute as comes in judgment is in these words: “At the time of the commencement of every suit at law or in equity, in any court of record, in counties having a population exceeding seventy thousand inhabitants, in this State, the party or parties commencing such suit, or in case of an' appeal from an inferior court, the party or parties, appellant or appellants, or in case of an application . for judgment upon any special assessment or special tax levied by any incorporated .town or city, such town or city, shall pay to the clerk of the court the sum of' $6, to be taxed as costs in the suit, which said sum shall be in full payment for all services of such clerk on behalf of the plaintiff or plaintiffs, complainant or complainants, petitioner or petitioners, appellant or appellants, in the progress of such suit from the commencement to the final termination thereof, except the making of copies of papers or orders, a complete record, or a record for a higher court. And in case of any application for judgment for city, county, State, town or other general taxes, there shall be paid to the clerk, by the corporation so applying for judgment, the sum of three cents for each and every tract of land upon which judgment shall be rendered by the court, which said sum shall be in full payment for all services to be performed by such clerk in the progress of such suit, upon such application, from its commencement to the final termination thereof. And the defendant or defendants, respondent or respondents, appellee or appellees, before he, she or they shall be entitled to enter his, her or their appearance, or file any pleas, answer or demurrer in any suit at law or in equity, shall pay to the clerk of the court the sum of $1.50, to be taxed as costs in the suit, which in like manner shall be in full payment of and for all services rendered or to be rendered by the clerk, for or on behalf of the defendant or defendants, respondent or respondents, appellee or appellees, in or during the progress of such suit to the final termination thereof, except for the making of copies of papers or records, a complete record, or a record for a higher court.”

It is contended by the defendant that when several defendants come together into court, and in a body enter their appearance, file pleas, or answer or demur, the law in such case requires each of such defendants to “pay to the clerk of the court the sum of $1.50, * * * in full payment of and for all services rendered or to be rendered by the clerk, for or on behalf of each of said defendants, during the progress of the suit.” The relator contends, that “the sum of $1.50” is to be paid, not by each of such defendants, but by all such defendants as enter their appearance together, or plead . together, or answer or demur together.

We are of opinion that the position of the relator is the one indicated by the terms of the statute. The statute provides for two classes of contingencies or cases—the first, when a defendant (one defendant acting separately) wishes to enter his appearance, or to plead, answer or demur on his own behalf,—in such ease such defendant must, before doing so, pay $1.50. The second case is, where two or more defendants wish to enter their appearance, or to plead, answer or demur together, they are jointly to pay the $1.50. The , statute does not say that in such case each shall pay the $1.50, and we do not think means that each shall do so. Of course, when such payment has once been made, it .is in full for all subsequent clerk’s fees otherwise chargeable to any of such defendants, except such as are excluded from the operation of this statute.

The language of the section is involved, and if what is said as to each of the cases provided for in the statute be stated separately, the meaning will perhaps be more apparent. The section provides, as to a single defendant, as follows: “And the defendant, respondent or appellee, before he or she shall be entitled to enter his or her appearance, or file any pleas, answer or demurrer, * * * shall pay,” etc.; and as to the case of two or. more, the provision is: “And the defendants, respondents or appellees, * * * before they shall be entitled to enter their appearance, or file any pleas, answer or demurrer, * * * shall pay,” etc.

We are clearly of opinion that in this controversy the law is with the relator. The peremptory mandamus sought in the petition is therefore awarded.

Mandamus awarded.


author: Mr. Justice Scott

text:
    The People of the State of Illinois v. F. Stahl.

      Filed at Mt. Vernon January 18, 1882.

    1. Boundaeies—desobiption—mistake in surveyor’s certificate—controlled by monuments. A mistake in the surveyor’s certificate,'attempting to give a description of the land actually surveyed and platted into town lots, describing the town as being on a different quarter of the proper section, does not render the survey and subdivision of the property into lots and blocks uncertain, and for that reason void, when the monuments planted by the surveyor at the time of the survey, fix the boundaries of the survey definitely and certainly.
    2. It is well settled law that the monuments established by a surveyor at the time of “making the survey, will always prevail over written descriptions, when a contradiction exists.

      3. Description—of its sufficiency, generally. Any description of land or a lot, for purposes of .taxation, by which it may be identified by a competent surveyor with reasonable certainty, either with or without extrinsic evidence, is sufficient.
    4. Taxation—personal judgment for taxes—its effect upon the lien— and the right to a judgment against the land,. The recovery of a personal judgment by the State, against the owner of real estate for taxes due thereon, does not discharge the lien given by the statute for such taxes, and hence is no bar to an application by the collector for judgment against the property. The State may have a personal judgment against the owner for the taxes, and at the same time, or at any other time, enforce payment against the land itself by a proceeding in rem; but the payment of either judgment will be a satisfaction of both.
    Appeal from the County Court of Effingham county; the Hon. Joseph B. Jones, Judge, presiding.
    Mr. B. C. Harrah, for the appellant.
    Mr. B. F. Kagay, for the appellee.
   Mr. Justice Scott

delivered the opinion of the Court :

This was an application by the collector of Effingham county, to the county court of that county, for judgment against delinquent lands and town lots for the year 1880, and prior years. Objections made by F. 'Stahl to any judgment against lots owned by him, were so far sustained that the court only rendered judgment against his lots for the taxes due thereon for the year 1880, but abated the taxes for 1879, and refused to render judgment for back taxes on his lots for the years 1877 and 1878, because an action at law was pending in a court of competent jurisdiction for a personal judgment against the owner for the- taxes due for those years. Exceptions were taken to the decision of the court, which have been preserved in the record, in the usual mode, and the People ask to have the judgment of the county court, abating the taxes on objector’s lots for 1879, and refusing to render judgment for back taxes due for prior years, reversed.

Of the objections taken in the county court at the trial, only two are now insisted upon: First, imperfect description of the property; and second, there is now a personal judgment against the owner for the back taxes due on his lots for 1878 and 1877. p

The property assessed is lots 1 and 2, in block 17, of ■the county clerk’s subdivision of the north-east quarter of the south-east quarter of section 20, in a town and range stated. The imperfect description insisted upon has no application to the assessment for 1880. His lots were assessed that year by what the owner concedes was a definite and certain description. ‘ Judgment was rendered against the property for 1880, and the owner seems to have acquiesced in the decision, as no cross-errors are assigned, and no complaint is made on that score.

It appears that for the prior years the property was assessed in the name of the objector as lots 1 and 2, in block 17, in the town of Effingham, or Effingham proper. The only question made is, whether it is the same property that was assessed to the objector in 1880. As respects the identity of the property, there can not be the shadow of a doubt. The town of Effingham was in fact laid out on the north-east quarter of the south-east quarter of section 20. It was on that tract the surveyor doing the work for the proprietor ran his lines, and divided the ground into lots and blocks, numbered in the usual way, and planted monuments to mark the boundaries of his survey. The plat made by the surveyor, which was acknowledged by the proprietor and was duly recorded, corresponds with the survey actually made. The difficulty, if any exists, arises out of a mistake in the surveyor’s certificate, descriptive of the land actually surveyed. It was inadvertently described by him as the north-east quarter of the north-east quarter, instead of the north-east quarter of the south-east quarter of section 20. But that error, did not render the survey and subdivision of the property into lots and blocks uncertain, and for that reason void. Monuments planted by the surveyor at the time of doing the work, fixed the boundaries of the survey as definitely and certainly as any written description could possibly do. It is well understood law that monuments established by the surveyor at the time of making his survey will always prevail over written descriptions, where a contradiction exists. It seems the county clerk caused the north-east quarter of the south-east quarter to be subdivided precisely as it was originally surveyed for the proprietor laying out the town of Effing-ham, and under the provisions of the statute had the plat recorded, with a view, no dotibt, to put an end to the controversy concerning imperfect descriptions. That neither did any good nor harm. The description was sufficiently definite and certain by the original survey having monuments on the ground actually subdivided, to mark its boundaries, that could be readily discovered. Any surveyor, with the plat, by the aid of the monuments on the ground, could easily locate objector’s lots, and identify them as the identical property as described in the county clerk’s subdivision of that particular tract of land. Any description of property, for the purposes of taxation, by which it might be identified by a competent surveyor with reasonable certainty, either with or without extrinsic evidence, will be sufficient. Law v. The People, 80 Ill. 268; Fowler v. The People, 93 id. 116. .

The second objection is of more seeming difficulty, because the question made is entirely new in this court, but by the analogies of the law it will admit of a satisfactory answer. It is admitted objector was sued, in 1879, for the taxes due on the lots involved, for the years 1877 and 1878, and judgment rendered against him for such taxes by the justice of the peace before whom the cause was heard, from which objector took an appeal to the county court, and that the suit is still pending and undetermined in that court. The position assumed is, that when a personal judgment is rendered under the statute, against the owner, for taxes assessed on his property, such judgment will relieve the land itself from such taxes. The proposition asserted has no authority for its support, at least none has been cited, and certainly none exists in this State. There is nothing in the statute which gives authority to sue for and recover the amount due on forfeited property, in an action of debt against the owner, that indicates the recovery of a personal judgment against the party owing such taxes will relieve his land from such taxes; nor is any reason perceived why such a construction should be given to the statute.

A vendor of land may sue at law upon the note given for the purchase money, and at the same time proceed in equity to enforce a lien reserved in the deed in the nature of a mortgage to secure payment of the note. (Palmer v. Harris, 100 Ill. 276.) As respects a note secured by mortgage, the holder may have a personal judgment against the maker for the amount due, and at the same time proceed by bill in chancery to subject the mortgaged premises to its payment. Indeed, he may have several distinct remedies, all of which he may pursue until his debt is satisfied. A personal judgment on the note, against the maker, is no bar to a bill to foreclose the mortgage by which it is secured, and the two suits may he pending at the same time. Vansant v. Allmon, 23 Ill. 30.

The statute declares the taxes upon real property, together with all penalties, interests and costs that may accrue thereon, shall be a prior and first lien on such real property, superior to all other liens and incumbrances, from and including the 1st day of May in the year in which the taxes are levied, until the same are paid; and what reason can be fairly assigned why a personal judgment against the owner for the taxes would discharge the lien which the statute gives on his lands to secure the same, any more than a personal judgment against the purchaser would discharge the vendor’s lien upon the land which secures the purchase money ? The eases certainly have a striking likeness, and the principle that controls in one case ought to he applicable in the other. It is well understood a vendor may have a personal judgment against the vendee for the purchase money, and may at any time, by bill, proceed to enforce a vendor’s lien against the land itself, and by parity of reasoning the State may have a personal judgment against the owner for the taxes, and at the same time, or at any other time, enforce payment against the land itself by a proceeding in rem. In either case, one satisfaction is all that would be allowed. The payment of one judgment would be a satisfaction of the other. Applying the principles of the cases cited, it seems clear the State may pursue cumulative remedies at the same time, until payment of the taxes owing by the citizen may be coerced. That is all that is being done in this case, and the remedies adopted are both allowable under the statute.

So much of the order of the county court as gives judgment against the lots owned by objector for the taxes of 1880, will be affirmed, and so much of it as refuses judgment for the back taxes for the years 1877 to 1879, both years inclusive, will be reversed, and the cause remanded for farther proceedings in conformity with this opinion.

Judgment affirmed in part and in part reversed.


author: Mr. Justice Sheldon

text:
    Monroe C. Crawford et al. v. Richard Richeson et al.

      Filed at Mt. Vernon January 18, 1882.

    1. Lien—collector’s bond—after-acquired lands. The statutory lien created.by the approval and recording of a collector’s bond attaches not only to the lands then owned by the principal, but also to after-acquired lands, the same as in the case of a judgment.

      2. Lien—stjbett—extension of time for payment of taxes—subrogation of surety. An act of the legislature extending the time of payment of taxes to a collector of the revenue, with the written assent of his sureties, without notice to the General Assembly that others had purchased lands of the collector after the approval and recording of his bond, will not discharge the lien of the State on such lands, nor prevent the collector’s sureties answering for his default from being subrogated in equity to such lien.
    3. Same—effect of surety talcing indemnity from his principal, as to his right of subrogation. The taking of a mortgage by a surety of a collector as an indemnity against loss, is no waiver of any right of subrogation in favor of the sureties to the lien in favor of the State on the collector’s lands, where such sureties have been compelled to pay the State for the default of the collector.
    4. Same—release by surety of part of his indemnity, without notice of equities in others—effect upon his right of subrogation. The release by a surety of a county collector of a part of a mortgage given for his indemnification, without notice of the equitable rights of a purchaser of land from the collector which was subject to the lien of his bond, will not defeat the right of this and other sureties of the collector, after having paid judgments against them in a suit on the collector’s bond, to be subrogated to the lien created by statute on his lands in favor of the State.
    ■ 5. Same—right of surety to require lien against principal’s land to be first enforced. The sureties upon a collector’s bond have the right in equity, upon the recovery of a judgment against them upon the bond, and before its payment by them, to file a bill and require the lands of the collector subject to the lien of his bond, though they have passed into the hands of innocent purchasers, to be sold for the payment of such judgment, and upon supplemental bill showing payment of the judgment, to be subrogated to the lien of the State, and have the lands sold for their reimbursement.
    6. Same—sale of lands subject to lien, in inverse order of alienation. "Where a statutory lien, as that of a collector’s bond, attaches to land, a part of which was acquired after the recording of the bond, and such lands have been sold and conveyed by the collector to different persons and at different times, it is proper to order their sale in the inverse order of their alienation, on bill by his sureties to be subrogated to the lien of the State, and this without regard to the times of acquiring the title to the different parcels which were purchased after the recording of the collector’s bond.
    7. Lien—homestead—as to lien of collector’s bond. A homestead not exceeding §1000 in value, owned and occupied by a county collector as his residence, is not subject to the statutory lien of his bond; but if it exceeds that value, then the excess, but only the excess, is subject to such lien.
    8. Same — whether lien attaches before the homestead is occupied. "Where, after the recording of a collector’s bond, which is declared a lien on all bis lands, he purchases land for a homestead, and within a reasonable time thereafter moves upon and occupies it as such, the land so bought will be considered as becoming his homestead from the time of acquiring the title, and the lien will not attach, although a short space of time may have intervened between its purchase and occupancy.
    9. Same—maimer of asserting homestead right. Where a bill to enforce the lien of a collector’s bond on land owned and sold by him, before the bond was discharged, alleged that the bond was a lien on the land, which the answer simply denied, it was held, that under the issue thus formed evidence of a homestead-right was competent, as going to show the bond was never a lien on the land.
    10. Same—of the right of homestead in case of exchange of lands. During the pendency of a statutory lien under a collector’s bond, the collector acquired a tract of land as his homestead, which he exchanged for another, occupying the latter as a homestead, it was held, on bill by the sureties of the collector, who had been compelled to pay on his default, to be subrogated to the lien and have these lands sold under the lien, that in consideration of the equitable rights of purchasers from the collector, the sureties should be subrogated as to only one of the two tracts, viz: the tract last acquired, and as to it only as to the excess in value above §1000.
    11. But where a house and two acres of land not subject to the lien, as being of less value than §1000, together with twenty-eight acres of land subject to the lien, were exchanged for one hundred and twenty acres of other land and $1000 in money, it was held,, that the rule could not be applied, it being no exchange proper, in the legal sense.
    Appeal from the Circuit Court of Perry county; the Hon. W. H. Snyder, Judge, presiding.
    The bill in chancery in this case alleges that Marion D. Hoge was collector of taxes of Franklin county for the year 1867; that on December 5, 1867, he gave bond, as required by the statute, for the faithful performance of his duties as such collector, which was duly approved and recorded, and that the bond was signed by the complainants, and Daniel Mooneyham and Lewis G. Payne, as sureties for Hoge; that there came to the hands of Hoge, as such collector, a large sum of money belonging to Franklin county, which he failed to account for, and that a judgment was afterwards rendered in the Franklin county circuit court against Hoge and his sureties for the amount due the county, which judgment the complainants and said Daniel Mooneyham paid and discharged ; that the collector was also in default in regard to taxes due the State which he had collected, for which the State recovered judgment in the Supreme Court against him and his sureties, and which was not paid at the time of filing the hill. A supplemental bill was filed, showing that, since filing the original bill the latter, judgment had been paid and discharged by the complainants and Mooneyham.
    The bill alleges that at the date and recording of the bond the collector was the owner of two certain parcels of real estate described in the bill, and that after the date and recording of the bond .he became the owner of certain other parcels of real estate, which are described in the bill, with a statement of the date on which he acquired title tó each tract, after the recording of the bond; and that the collector sold and conveyed. all his real estate before either of the aforementioned .judgments was recovered. The bill charges that the bond of the collector, from and after the time it was recorded, became a lien on all the real estate which he owned at the time the bond was recorded, and also upon all the real estate subsequently acquired by the collector, and that the lien is still in force; that Hoge, the collector, and the said Lewis G-. Payne, one of the sureties, are both insolvent, and that neither of them paid any part of said judgments: Hoge, and all those claiming title to these lands through him, and the said Payne and Mooneyham, are made defendants to the bill. The prayer is, that enough of the real estate to pay the judgment in the Supreme Court in favor of the State be decreed to be subject to the judgment, and be sold to pay the same, and that the remainder of the real estate, or so much as may be necessary, be sold to pay the complainants, with interest, the amounts by them paid on the judgment in favor of Franklin county. Answers were filed denying the allegations of the bill, proofs taken, and upon hearing, the court decreed according to the prayer of the bill, and that the lands be sold in the inverse order of their alienation by Hoge. The defendants appealed.
    Messrs. Duff, Crawford & Williams, for the appellants s
    The statutory lien of a collector’s bond does not extend to after-acquired lands. Calhoun v. Snyder, 6 Binn. 135; Roads V. Simms, 1 Ham. 281; Harrington v. Sharp, 1 G. Green, 131; Freeman on Judgments, sec. 367.
    Liens of this kind are strictly construed. Brady v. Anderson, 24 Ill. 112; McCoy v. Morrow, 18 id. 523; Canal Co. v. Gordon, 6 Wall. 561.
    By accepting and appropriating another indemnity after the default, the complainants lost all right of subrogation to any security in favor of the State. Cooper v. Jenkins, 3 Beav. 337; Cornwell’s Appeal, 7 Watts & S. 305.
    By appropriating this indemnity they lost the privilege of sureties, and became principals to that, extent. Smith v. Steel’s Estate, 25 Vt. 427; Chilton v. Robbins, 4 Ala. 22; Silvey v. Dowell et al. 53 Ill. 260; Cogswell v. Ruggles, 62 id. 402.
    The right of subrogation by a surety never exists until the whole debt is actually paid. Field v. Hamilton, 45 Vt. 35; Gilliam v. Erselman, 5 Sneed, 86; Magee v. Leggett, 38 Miss. 139; Brandt on Suretyship, sec. 261.
    The appellees, by agreeing to the extension of time to Hoge, and stipulating that it should not work their release, waived all right of being subrogated to any supposed lien against the lands of third parties not consenting to the extension. They thereby assumed new relations to the State. Bailey v. Brownfield, 8 Harris, 41; Oakley v. Parsheller, 10 Bligh, N. R.. 548; Lime Rock Bank v. Mallett, 34 Maine, 547; Story’s Equity Jur. sec. 502b.
    The suspension of the remedy is a waiver of the lien, between creditors and third parties. Au Sable River Boom v. Sanborn, 36 Mich. 358; Howe v. Frazier, 2 Rob. (La.) 424;
      Hartwell v. Smith, 15 Ohio, (N. S.) 200; Wilbur v. Ross et al. 26 Ill. 221.
    But further, the State, by this extension of time to Hoge, released and discharged all his sureties who did not agree to the extension. Davis v. People, 1 Gilm. 409; People v. McHatton, 2 id. 638; Johnson v. Harker, 8 Heisk. 388; Brandt on Suretyship, sec. 296.
    Where property is subject to answer for the debt of another person, it occupies the position of a security or guarantor, and anything which would discharge an individual security, will, under similar circumstances, discharge such property. Robinson v. Magee, 1 Vesey, Sr. 251; Royal C. B. v. Payne, 19 Grant’s Ch. 180; Christener v. Brown, 16 Iowa, 130; Denison v. Gibron, 24 Mich. 187; Rowan v. Sharp’s Rifle Co. 83 Conn. 1; Union Bank v. Govan, 10 Smedes & Mar. (Miss.) 333; White v. Ault, 19 Ga. 551; Ryan v. Shaw, 14 Ill. 20.
    And where land subject to a judgment lien is sold by the judgment debtor to a third party for its full value, such land occupies the position of security, and is subject to be discharged from the judgment lien by the acts of the creditor, like any other security. Barnes v. Mott, 64 N. Y. 377; Leffingwell v. Freyer, 21 Wis. 392; Lowery v. McKinney, 68 Pa.. St. 294.
    If by this extension of time to Hoge the State lost its lien on these lands, then it had no rights in this subject to which appellees could be subrogated.
    As to the right to enforce the statutory lien against lands in case of an exchange, counsel referred to the rule as to dower, showing it could be enforced only as to one tract. 1 Scribner on Dower, 271; Park on Dower, 261; 1 Hilliard on Real Estate, 168; Butler & Baker’s Case, 3 Leon. 271.
    A judgment creates no lien against the homestead. Green v. Marks, 25 Ill. 221; Parclee v. Lindley, 31 id. 174; Hartwell v. McDonald, 69 id. 293.

      Nor does the lien given by this bond attach to the homestead. Hume et al. v. Gossett, 43 Ill. 297.
    Nor does this section 5 of the Bevenue law “in any way affect the homestead estate. ” Trustees of Schools v. Harvey et ux. 94 Ill. 394.
    That a judgment debtor may acquire a homestead free from the lien of any judgment against" him, see Campbell v. McManus, 32 Texas, 442; McManus v. Campbell, 37 id. 267; Cipperly v. Roads, 53 Ill. 346; Culver v. Rogers, 28 Cal. 250; Edmonson v. Meacham, 50 Miss. 35; North v. Shearn, 15 Texas, 174; In re Henker, 2 Sawyer, 305; Hawthorn v. Smith, 3 Nev. 182; Thompson on Homestead, secs. 305, 306 ; Monroe v. May, 9 Kan. 466; Edwards v. Fry, 9 id. 417.
    Mr. W. H. Williams,' for the appellants Overturf, Biby, and the heirs of John. McFall, made the following among other legal points:
    The right to be subrogated depends upon principles of equity, and not upon contract. Mathews v. Aiken, 1 Comst. 595; Salmon v. Clagett, 3 Bland’s Ch. 173; Kirkpatrick v. Howk, 80 Ill. 122.
    The right of subrogation is an inherent and natural equity, growing out of the circumstances of the case. 24 Miss. 665.
    And subrogation is the transfusion of one creditor to another, with the same or modified rights. Burrell’s Law Diet., title “Subrogation.”
    And hence the sureties can obtain no greater right, or attain a better position as regards the principal debtor, than was held by the original creditor. If the creditor has taken collateral security, he holds the same as trustee for the benefit of the sureties. 1 Story’s Equity, 477, et seq.; Kirkpatrick v. Howk, 80 Ill. 122; Hall, Admr. v. Hoxsey et al. 84 id. 618; Phares v. Barbour, 49 id. 370.
    And if the creditor, without the consent of the surety, releases or discharges such collateral security, the surety is discharged to the extent of such collateral security. Rogers v. School Trustees, 46 Ill. 428; Hall v. Hoxsey, 84 id. 618; Phares v. Barbour, 49 id. 370. And we hold the converse of the proposition to be true, that if the creditor, with the consent of the surety, releases such collateral security, such surety is not discharged.
    An extension by a creditor to his debtor is a discharge of the surety not consenting thereto. Woolford v. Daw, 34 Ill. 434; Crossman v. Wohlleben, 90 id. 537; Davis v. People, 1 Gilm. 409; Waters et al. v. Simpson et al. 2 id. 571; People v. McHatton, id. 638; Governor v. Lagow et al. 43 Ill. 135.
    Then, by consenting to this extension, the sureties are not released, and as to them the act of the legislature and their, stipulation amounts simply to a suspension of the remedy. Parmelee et al. v. Lawrence, 44 Ill. 405; Parsons on Contracts, vol. 1, p. 27.; id. vol. 2, p. 27.
    And if this had been a judgment lien, and an execution issued thereon and levied upon lands, and the levy released by and with the consent of the plaintiff in the execution, the lien would be gone, at least as to third parties who acquired title during the suspension. Freeman on Executions, sec. 271; Freeman on Judgments, sec. 379; AuSable River Boom v. Sanborn, 36 Mich. 358; Waters et al. v. Simpson et al. 2 Gilm. 574.
    Mr. Thomas J. Layman, and Messrs. Hammack & Davis, for the appellees:
    The statute making the bond a lien was to secure public rights, and it seems clear that the legislature, by using the same language in making the bond a lien, intended to give to the public at least as many rights as they gave to individuals under the statute making judgments a lien. Real estate acquired by' a judgment debtor after the rendition of a judgment, becomes subject to the statutory lien of the judgment. Curtis v. Root, 28 Ill. 367; Wales et al. v. Bogue, 31 id. 367;
      Root v. Curtis, 38 id. 192; Freeman on Judgments, sec. 367, and notes.
    The statutory lien of a 'judgment hinds all lands owned by the sureties at or subsequent to the execution of the bond, though alienated before the judgment of affirmance is pronounced. Freeman on Judgments, sec. 376; Berry v. Shuller, 25 Texas, (supp.) p. 140.
    The lien attached the moment Hoge acquired title to the lands. Freeman on Judgments, sec. 368; Moody v. Harper, 25 Miss. 484.
    Where a surety in an appeal bond, on the judgment being affirmed, pays the judgment, he is entitled to be substituted to the rights of the creditor, in respect to the lien of his judgment. McClung v. Bierne, 10 Leigh, 394.
    It is generally conceded that the lien of a mortgage is not impaired by taking another bond or note for the debt, or extending the time of payment. Taft v. Boyd, 13 Allen, 84; Chase v. Abbott, 20 Iowa, 54; Bailey v. Myrick, 50 Maine, 171.
    This is true even when the new securities bear the name of a third person as maker, obligor or indorser. 2 Am. Leading Cases, 376 (5th ed.) The rule was laid down in Pomeroy v. Rice, 16 Pick. 22, and Fowler v. Back, 23 id. 239. A mortgage will remain in force as long as the debt or obligation which it was intended to secure, subsists, notwithstanding any formal change. Cessna v. Haines, 18 Ind. 496; Williams v. Kerr, 6 Wis. 534; Parkhurst v. Cummings, 56 Maine, 155; The Bank v. Friend, 3 Barb. Ch. 393; Dunham v. Day, 15 Johns. 555; Bolles v. Chauncey, 8 Conn. 389; Pond v. Clark, 14 id. 334; Bosswell v. Goodman, 31 id. 74; Gault v. McGrath, 8 Casey, 392; Fowler et al. v. Elwood, 66 Ill. 438.
    Where land which is subject to the lien of a mortgage or other paramount incumbrance, is sold in parcels successively to different persons, the buyers are prima facie chargeable in the inverse order of alienation. James v. Hubbard, 1 Paige, 228; Governeur v. Freyer, 4 Iowa, 47;. Guion v. Knapp, 6 id. 35; Patty v. Pease, 8 id. 279; Skeel v. Spaker, id. 182; Chapman v. West, 17 N. Y. 125; Jones v. Myrick, 8 Grattan, 179; Cooper v. Bigley, 13 Mich. 463; The Howard Ins. Co. v. Halsey, 4 Selden, 271; Nackin v. Stanley, 10 S. &. R. 450; Paxton v. Harrier, 1 Jones, 312; Hunt v. Mansfield, 31 Conn. 478; Thompson v. Murray, 3 Hill’s Ch. 204.
   Mr. Justice Sheldon

delivered the opinion of the Court:

The evidence sustains the averments of fact in the bill. There is no dispute about the facts. The controversy is as to the legal conclusion from the facts.

Touching the lien of the collector’s bond, the provision of the statute is: “Said bond, when approved and recorded,

shall be a lien against the real estate of the collector, until he shall have complied with the conditions thereof. ” Rev. Stat. 1874, p. 882, sec. 166.

The point is made, that this lien given by the statute does not extend to after-acquired lands. The words of the statute give the lien against the real estate of the collector generally, without restriction as to the time of its acquirement, and we see no reason for imposing any by construction. There is no essential difference in this respect between the language of the statute giving the lien of the collector’s bond, and that making a judgment a lien upon real estate; and it has ever been held in this State, that the real estate acquired by a judgment debtor after the rendition of the judgment, becomes subject to the statutory lien of the judgment. Curtis v. Root, 28 Ill. 367; Wales v. Bogue, 31 id. 464; Root v. Curtis, 38, id. 192; and see Freeman on Judgments, sec. 367, and note. We perceive no reason why the same rule of construction of the statute in this respect should not be applied to both these liens.

It is said that the sureties of Hoge accepted another indemnity than this lien, and that they have never accounted for part of it, and that they thereby waived their rights to subrogation. All the foundation for this is, that Hoge made a mortgage to Mooneyham, one of the sureties, of 108 acres of land, for his indemnification as surety; -that Mooneyham afterward released 20 acres of the land, and foreclosed the mortgage on the remaining 88 acres, and conveyed to the complainants, in pursuance of a decree of court to that effect, fifteen-sixteenths of this land acquired by the foreclosure. As to the release of the 20 acres, it simply appears the release was made without notice to the sureties of any interest or equity of the defendants, so as to preclude Mooneyham from dealing freely with Hoge, and releasing to him this 20 acres, without in any way impairing otherwise their rights as sureties against him. If defendants had any equitable" 'claim that this 20 acres should be continued subject to the mortgage for the protection of their own interest, they should have given notice of such claim, in order to raise any ground of complaint against the sureties that the making of the release was prejudicial to the defendants. The full value of the 88 acres was allowed against complainants, in reduction of the amount of the decree.

As to the rents and profits for the four years Mooneyham previously had possession of the land, he testifies that the rental value was about $60 per year, with taxes and repairs to come out of it; that at the time he conveyed to his co-sureties he had never paid them anything, and then settled with them; that there was then $35 or $40 in his hands due them, after deducting taxes, and for repairs, and foreclosing the mortgage, and they allowed him that for his trouble. There was no evidence to show that this was not a proper accounting and settlement.

We do not find that there is any just ground of complaint with the defendants in respect to this mortgage taken by the sureties. Obviously, the taking of it was no waiver of any ■ right of subrogation.

It appears in the case, that in October, 1868, some $5000 of the revenue collected was stolen from Hoge, and on March 31, 1869, (Session Laws 1869, p. 336,) the legislature passed an act extending the time to Hoge to pay the State revenue until January 1, 1871, on condition his sureties should sign and • file with the Auditor a stipulation agreeing to such extension, and that it should not work a release or affect their liability as sureties; which stipulation was accordingly signed by them, and filed with the Auditor, April 16, 1869. This, it is contended, destroyed the right of subrogation in this case.

When this collector’s bond was made, the law required Hoge to pay over all the revenue by June 30, 1868. It is said the State, by this extension of time to Hoge, released and discharged all his sureties who did not agree to the extension; (Davis v. People, 1 Gilm. 409; People v. McHatton, 2 Gilm. 638;) that the lands in question, if subject to this lien, being then in the hands of innocent purchasers for full value, occupied the position of securities for Hoge, and therefore the extension of time to him, without the consent of the owners of the lands, discharged the lands from such lien; and authorities are cited to the effect that where property is subject to answer for the debt of another person, it stands in the position of a surety, and any dealing with the principal debtor which would have discharged a surety for the debt, will discharge the property held as security for such debt. Rowan v. Sharp’s Rifle Mfg. Co. 33 Conn. 1; Barnes v. Mott, 64 N. Y. 397.

Assuming the correctness of this doctrine, and its applicability to the facts of the present case, the same answer of want of«notice may be made as was with regard to. the release of a portion of the property mortgaged' to the sureties, and the same remarks upon that subject may he repeated here. The legislature in extending the time of payment, knew only the principal and sureties in the bond as concerned therein, and dealt regardfully of all interests that it had knowledge might be affected, passing the act only upon condition of its being assented to by the collector’s sureties. Had it known of the existence of adverse interest on the part of these defendants, it might not have granted the extension without their like consent also; but not having or being chargeable with notice of any such interest, it could not be expected to act with any view to the protection thereof, and for not having done so the State should not be held responsible, and made to lose the remedy of a lien upon these lands, because of the supposed prejudicial effect to their owners resulting from the extension of the time of payment of the State revénue; and the same is to be said with respect to the sureties, and their consent to the extension. We regard the case in this respect as covered by the principle of the decision in Matteson v. Thomas, 41 Ill. 110, and Iglehart v. Crane & Wesson, 42 Ill. 261, that before a prior mortgagee can be required to shajie his action in the collection of his debt, in reference to the subsequent order of alienation of different parcels of the mortgaged premises, he must have actual notice of what that order is, and not merely the constructive notice derived from the registry of the deeds made by the mortgagor subsequent to the mortgage,—that such registry is not constructive notice to him.

As the original bill filed January 8,1876, did not show that the sureties had paid anything upon the judgment recovered in the Supreme Court in favor of the State, and it was the supplemental bill filed October 31, 1876, which showed the payment by the sureties of this judgment on July 24, 1876, being more than six months after the original bill was filed, it is insisted the complainants were entitled to no relief whatever in respect to this judgment; that the hearing of a chancery cause can be had only on the grounds which existed when the original bill was filed. We do not conceive that it was only payment of the judgment by the sureties which gave them title to relief in respect to it. It has been held that a surety for a debt secured by mortgage may, even before he has been injured, compel payment from the land in the first instance. 1 Hilliard on Mortgages, 338; and see King v. Baldwin, 2 Johns. Ch. 554; 4 id. 122.

The original bill showed the recovery of the judgment in the Supreme Court in favor of the State, and prayed that enough of the lands to pay that judgment be declared subject thereto, and be sold to pay the same, which form of relief complainants were entitled to without payment of the judgment, agreeably with the last above authorities. The supplemental bill showed the payment by the- sureties of the judgment since the commencement of the suit, and prayed that complainants be subrogated to the rights of the State, and that the lands be sold to pay the sureties 'the amount they had - paid on the judgment. The relief prayed for by the original and supplemental bills, and-which complainants were entitled to under them, was substantially the same, as it accomplished the same end. There is nothing in this point.

It is insisted that the court erred in ordering a sale of the lands in the inverse order of their alienation by Hoge. It is admitted by appellants that this would have been the just and proper mode of sale had Hoge owned all these lands when the bond was made; but as he at that time owned but two of the tracts, and afterwards acquired title to the other tracts, it is insisted that the reason of the rule can have no application to the facts. in this case; that when Hoge conveyed the tracts he owned when the bond was made, it could not be said, as to the grantees, that the liability of Hoge on this bond was thereby primarily cast upon the lands to which Hoge at that time had no title, and subsequently acquired. It is claimed that othe lien, if any, attached to the subsequently purchased tracts in the same order of time in which Hoge acquired title to them, and that they thus stand in the nature of so .many successive mortgages or securities for Hoge, and therefore the payment of Hoge’s debt from them should be enforced in the same order of time in which they severally became subject to such payment,—that the party whose property was last pledged for the default of Hoge should have the benefit of all prior liens and securities which the State and county could have enforced. We perceive no difference for the application of the rule where the lands are all held at the time dhe lien attaches, and where part or all of them are acquired subsequently. As to the two tracts held here when the bond was made, upon the sale of one of them by Hoge the lien rested primarily upon the tract which he retained, and that should first have been sold for the discharge of the debt. The equity would depend on the purchaser’s right to have so much of the land as he had bought, free from incumbrance, and on the duty of the creditor, who had two funds open to him, to take that which would not prejudice the purchaser. After Hoge had sold both these tracts owned by him when the bond was made, and he had purchased the first tract he acquired after the making of the bond, the very same equity as in the other case would now exist with respect to this tract while in Hoge’s hands, and it should first be sold under the lien, before having recourse to the two tracts which he had previously sold, and which he owned when the bond was made, and the purchaser of this last tract from Hoge would take it with the same equity resting upon it as when in Hoge’s hands. Hoge would convey no better right than he possessed himself. The same may be said with, respect to each subsequent parcel of land which Hoge acquired. We think the order of sale prescribed was proper, and in accordance with the well settled rule.

There is a claim of homestead right set up against the lien of this bond, with respect to the tracts of land acquired after the making of the bond, which we think must avail, at least to a certain extent.

It appears from the evidence, that on October 27, 1868, Hoge purchased a house and some two acres of land, and at once moved into the house with his family, and occupied it as a homestead until he exchanged' it with one Charles Hook. The property was shown to be worth not exceeding $800. A judgment creates no lien against a homestead where it is of less value than $1000. Hoge had a clear homestead right in this last named property, and it being of less value than $1000, it was not subject to the lien of the bond, and should not have been decreed to be sold. Green v. Marks, 25 Ill. 221; Bliss v. Clark, 39 id. 590; Fishback v. Lane, 36 id. 437; Hartwell v. McDonald, 69 id. 293.

On December 21, 1868, Hoge and Charles Hook exchanged lands, Hoge conveying by warranty deed this house and two acres, and 28 acres elsewhere, to Hook, for which Hook conveyed to Hoge 120 acres of land, and paid him $1000. Soon after, in January or February, Hoge moved on this 120 acres, and occupied it with his family as a homestead until he exchanged it with one Britton. On February 19, 1869, Hoge and Britton exchanged farms, Hoge conveying by warranty deed this 120 acres which he got from Hook, to Britton, for another 120 acres, which Britton conveyed to Hoge, Hoge then moved on this 120 acres got from Britton, and occupied it with his family as a homestead until he conveyed the same to Cantrell, August 24, 1869.

Although a short space of time did intervene after acquiring the title to these several tracts of land by Hoge, before he entered into the occupancy of them as a homestead, yet as he evidently acquired them for a homestead, and within a reasonable tiqie thereafter did move on them and occupy them as a homestead, we think the premises, respectively, at the time of acquiring title, should be considered as becoming the homestead, so that because of their being such the lien of the bond did not attach thereto. As, however, we do not discover in the record any evidence as to the value, while in the hands of Hoge, of the two tracts of 120 acres each, severally acquired from Hook and Britton, we can not say whether or not they were wholly exempt from the lien. They would he so in case they did not exceed in value, severally, §1000, hut if they exceeded that sum in value then they would be exempt to the extent of §1000, and the excess above that would be subject to the lien.

It is objected to considering the homestead right in this case that it is not set up in the answer, and that so there is no averment in the pleadings to afford a foundation for admitting evidence of a homestead right. The bill avers that the bond was a lien upon the lands. The answers deny that the bond ever was a lien upon the lands. Under the issue formed upon this averment and denial, the evidence of a homestead right was competent. It went to show that the bond never was a lien upon the lands,—that they were exempt from the lien so that it never attached to them, and we think the evidence was admissible in disproof of the lien having ever attached, under the general denial that it ever attached, without the answer having set forth specifically the facts showing why the bond never did become a lien.

As to the three tracts of land acquired by. Hoge after the making of the bond, as the first was exchanged for the second, and the second for the third, it is contended that if there be found to be a lien, the right of subrogation should be held to exist only in respect to some one of these three tracts,—that to allow it as to all three would be making the same property virtually answer three times for the debt. It is said subrogation is an equitable principle, and that as all the present holders of these three tracts are innocent purchasers for full value, and have made large and valuable improvements thereon, upon consideration of all the equities of the several parties, complainants should, in equitable right, be subrogated but to one only of these tracts. In respect of this last contention, the views of a majority of the court, in which Mr. Justice Scott and the writer of this opinion do not concur, are as follows:

As regards the second and third of these tracts, there was nothing but a mere exchange of one tract for the other. Hoge exchanged with Britton one tract of 120 acres of land for another tract of 120 acres. The last tract would seem to be but a substitute for the other, and to charge both with the lien would look much like subjecting virtually the same property twice.

In respect of dower when a valid exchange of lands is made, and the title is consummated by entry, the widow of either of the parties to the exchange may, by the common law, exercise .the right of election as to which estate she will be endowed of,—whether that given, or that received in exchange by her husband; but she can not have dower in both, although the husband had seizin of both during the coverture. 1 Scribner on Dower, 271. Further on, however, the author says: “The doctrine of the common law with respect to exchanges of real property is not universally adopted in the United States. The rule in a majority of the States is, that this mode of dealing in lands stands upon the same footing as transfers in the usual form. Both parties are regarded as ordinary purchasers, and the right of dower of the wife of each attaches as well upon the parcel conveyed as upon that received in exchange.” By our statute the right of dower is limited, upon the exchange of lands, as at common law, and the statute providing that if the election by the widow be not made within one year after the death of the husband, it shall be deemed to have been made to take dower in the lands received in exchange. Rev. Stat. 1874, p. 425, see. 17.

The question is not how it might be at law were the judgment creditors seeking to enforce their lien under the bond. They have been satisfied their debts, and the inquiry is as to the equitable right of subrogation which the sureties in the bond have. Without, then, saying how it might be at law in the allowance of this right of subrogation, which is governed by equitable principles, the majority of the court are inclined, in view of all the equitable considerations with respect to others who are to be affected by the exercise of the right, to adopt, by analogy, the rule applied where dower is concerned, and hold that, equitably, complainants should be subrogated as to one, only, of these two tracts,—and that will be the one last acquired from Britton, as that was the last in the order of alienation by Hoge, and so first to be sold under the decree, which precludes an exercise of election by complainants as to which one of the tracts the lien shall attach. The operation, then, will be to deny subrogation in respect to the lot acquired by Hoge from Hook, and not hold it bound by the lien, or subject to be sold.

This principle we do not find it practicable to apply with respect to the first exchange. That was not, as in the second case, the mere exchange of one tract for another, but a house and two acres of land, the homestead of Hoge, and not subject to the lien, together with 28 acres of land, were exchanged with Hook for 120 acres of land and $1000. This was not an exchange proper, in the legal sense. We do not see but that that 28 acres is subject to the lien.

Appellees have filed in the case, in this court, a suggestion of certain minor errors in the decree in ordering the whole of certain parcels to be sold, instead of a specified fractional portion thereof, which amounts to a confession of errors in such respect. In this respect, of course, the decree is adjudged erroneous.

The decree will be reversed, and the cause remanded for further proceedings in conformity with this opinion. It may be open to the parties to take further proof, if desired, as to the value of the 120-acre tract acquired by Hoge from Brit-ton, at the time it was held by Hoge, with reference to the homestead question of its being of more than the value of $1000 or not.

Decree reversed.