author: Mr. Justice Dickey

text:
    The Adams Express Company v. Adolph Boskowitz et al.

      Filed at Ottawa November 20, 1883.

      1. Evidence—party’s statements not evidence in his own favor. In an action to recover for a loss of goods against an express company, where the defence was a fraudulent concealment of the value of the several packages, the plaintiffs’ clerk, who filled up the receipt the company signed, on cross-examination testified, that until about a year prior to the date of the shipment the plaintiffs had put a valuation on goods, and paid an extra charge thereon, and that he struck out of the receipt the words “valued at, ” etc. The plaintiffs’ counsel then asked the witness, “Why?” and he answered, because he was told by one of the plaintiffs not to give a valuation, and that plaintiff told him he had an understanding with the express companies and with the agent of the defendant company that he was to pay no more valuation charges: Held, that such declarations of one of the plaintiffs were clearly inadmissible, not having been made in the presence of the defendant, or constituting any part of the res gestee.

    2. Same—to contradict statement of a witness. In a suit against an express company to recover for the loss of three bales of furs shipped, the defendant’s receipt therefor, when produced in evidence, had a memorandum thereon in a corner, showing the weight of each bale, and that two were mink and one skunk furs. The plaintiffs’ clerk testified that this was put upon the receipt before it'was sent to the express office for signature, and, on cross-examination, that the weights of such packages were kept in the receipt book, and that such weights were “most always” put in the receipt books. The agent of the express company who signed the receipt, testified that to the best of his knowledge that memorandum was not on that receipt when he signed it. He was then asked whether or not it was customary for the plaintiffs, according to his observation, to put their weights on their receipts. On objection the court disallowed the question. The witness .had been in the service of the defendant for many years: Held, that the question should have been allowed, as competent to contradict the testimony of the plaintiffs’ clerk.
    3. Contract—of the parties, in express receipt of goods shipped. A party, in forwarding goods by express, took a blank receipt of the United States Express Company, and wrote the word “Adams” over the words “United States,” and inserted therein a description of the goods, leaving an exemption clause unchanged, so that it read, “the said United States Express Company are not to be held liable,” etc., which receipt was signed by the agent of the Adams Express Company, and delivered to the shipper: Held, that the United States Express Company was in no sense a party to the contract or receipt, and that in a suit against the Adams Express Company an instruction stating that the receipt contained on its face no agreement for an exemption from liability between the plaintiffs and defendant, and assuming that the exemption in the receipt was contained in the “contract with the United States Express Company,” was palpably misleading, and unwarranted.
    4. Same—-when ambiguity may be explained. A blank receipt of the United States Express Company for goods to be forwarded, was changed by erasing the words “United States,” and inserting over the same the word “Adams,” and signed by the agent of the Adams Express Company, which company received the goods described in the receipt, but the clause in the receipt as to the limitation of the company’s liability was left unchanged, so that it read, “the United, States Express Company are not to be held liable, ” etc.: Held, that the law, in the absence of proof dehors the receipt, would not determine whether such limitation clause related to the Adams or the United States Express Company, and that the true intent of the parties giving or receiving such receipt must be determined from circumstances to be proved.
    5. Carrier—fraud in concealing value of packages forwarded. In an action against an express company to recover for the loss of three packages of furs, in which a fraudulent concealment of the value of the packages was relied on in defence, the court, in substance, instructed the jury, that although the clause in the receipt exempting the company from any greater liability than $30 for a package unless its value was truly given, may have been known to the plaintiffs, and that it was intended to apply to the packages shipped, and although the plaintiffs accepted the receipt with all this knowledge, and without objection thereto, and although the plaintiffs had agreed to pay a valuation charge on the character of goods embraced in the shipment, and omitted to state a valuation, all this would not be a fraud, and in the absence of fraud such omission would constitute no defence: Held, the instruction should not have been given.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Appellees were dealers in furs. They had a business house in New York City and one in Chicago, and were in the habit of shipping furs by express from Chicago to New York. There were in Chicago three express companies,—the United States, the American, and the Adams,—each of which, as a common carrier, was in the habit of carrying furs from Chicago to New York, and appellees shipped furs by each of these lines. The regular rates of charges by each of these companies for carrying furs from Chicago to New York was, for coarse furs three dollars per hundred pounds, and for fine furs three dollars per hundred pounds, and one-quarter of one per cent upon the value of the fine furs. It was the habit of appellees, when a shipment was made by either of these companies, to put up their packages at their store, and having marked the same properly, to fill up a receipt to be signed by the express company on the receipt of the goods, and returned, when so signed, to the shippers.
    Appellees, in March, 1872, had in their possession and use books of printed blank forms for express receipts. Some of them contained blanks of the usual form of receipts given to shippers by the United States Express Company, and some of which contained like blanks of receipts usually given by the American Express Company.' They do not seem to have had any such blanks running in the name of the Adams Express Company. These forms seem to have been used indiscriminately., whether the shipment was made by the United States Express, the American, or the Adams,—that is, in shipping by the United States Express the shipping clerk of appellees often used the form printed for the American, by simply writing the words “United States” over the word “American,” at the head of the receipt; and in shipping by the American Express Company he often used a blank prepared for the United States Express Company, simply writing over the printed words “United States,” at the head of the receipt, the word “American; ” and in shipping by the Adams Express Company, appellees’ clerk used either a blank printed for use with the United States, or a blank printed for use with the American, by simply writing the word “Adams” over the words “United States,” or the word “American, ” at the head of the receipt, according to which form happened to be at hand. These receipts were not usually cut or torn from the book, when used, but were filled up by appellees in the book, and signed by the agent of the express company in the book, and the book containing the receipts which had been signed, and also blanks for further use, was returned to and kept by appellees. This, by the testimony of appellees’ witnesses, was the usual course of the business.
    On March 20, 1872, appellees sent from their house in Chicago, three packages of furs to the Adams Express Company, to be shipped to New York City, and sent with them the receipt book containing receipts and blanks for receipts in forms printed for use with the United States Express Company, and in that book a receipt for these three packages, filled up in the name of the Adams Express Company. The goods were received by the Adams Express Company, and the receipt, as filled up by appellees, was signed in the book by Peterson, the shipping clerk of that company, and the book was returned to the appellees. The body of that receipt, so far as is material to this case, was as follows,—the words italicized were in writing, and the other words in print:

      “ADAMS EXPRESS COMPANY,
    Chicago, March 20, 1875.
    “Received of J. é A. Boskowitz three (3) bales, said to contain Peltries, valued at-dollars, and marked J. & A. Boskowitz, No. 38 Mercer street, New York, which we undertake to forward to the nearest point of destination reached hy this company only, perils of navigation excepted. And it is hereby expressly agreed that the said United States Express Company are not to be held liable for any loss or damage except as forwarders only, nor for any loss or damage of any box, package or thing for over $50, unless the just and true value thereof is herein stated; nor for any loss or damage by fire. * * *
    Eor the proprietors.

      Peterson, Agent.”
    The three bales were placed in the express car, in a passenger train on the railroad, which left Chicago on the evening of that day for New York City. The next morning, before day, at a point near Eort Wayne, Indiana, the train was thrown from the track by reason of a broken rail, and the cars at once took fire, and all save one were burned. The ■express ear containing these bales of peltries, with all its contents, was burned. This is an action of assumpsit brought by appellees, against appellant, to recover the value of these furs.
    The action was begun in April, 1872. The appellant pleaded, denying its liability.. On a trial in January, 1874, a verdict was rendered for the defendant, which, on motion, was set aside, and a new trial granted hy the Superior Court of Cook county. The issues were again tried in November, 1874, when a verdict was again rendered for the defendant, and again that court granted to the plaintiffs a new trial. A third trial was had in May, 1875, in which a verdict for plaintiffs was rendered, and their damages fixed at $50, and judgment went for that amount. Plaintiffs appealed from that judgment to this court, and upon a hearing here that judgment was reversed. (The case is reported in 93 Ill. 523.) The cause "was remanded, and in May, 1880, there was another trial, in which the jury failed to agree. In October, 1881, the issues were again tried, and a verdict rendered for plaintiffs, and damages assessed at $12,768. Appellant moved for a new trial. Appellees thereupon entered a remittitur of $4651.32, and the court refused a new trial, and rendered judgment against appellant for $8117.45, and costs. This judgment, oh appeal, was affirmed in the Appellate Court, and the case comes here on appeal from that judgment of the Appellate Court.
    Messrs. Wm. H. & J. H. Moore, for the appellant:
    Where the carrier seeks to be discharged from the duties which the law has annexed to his employment, a notice alone will not be effectual without the assent of the shipper to the attempted restriction; but it is otherwise in respect to those duties designed simply to insure good faith and fair dealing. A notice, alone, if brought home to the knowledge of the owner of the property delivered for carriage, will be sufficient. Boskowitz et al. v. Adams Express Co. 93 Ill. 523; Western Transportation Co. v. Newhall et al. 24 id. 463; Oppenheimer v. United, States Express Co. 69 id. 66; Erie Ry. Co. v. Wilcox, 84 id. 239.
    Plaintiffs’ second instruction was erroneous, in assuming that the clause in the receipt limiting the carrier’s liability was the contract of the United States Express Company. Boskowitz v. United States Express Co. 93 Ill. 523.
    If there was an agreement to pay a valuation charge on the furs, and that the same wras not paid, the plaintiffs practiced a fraud upon the defendant, and >can not recover. Yet the jury are told that plaintiffs are entitled to recover for the value of the furs lost, even though plaintiffs were to have paid extra charges and did not, (which is a fraud,) unless “the jury believe, from the evidence, that the plaintiffs practiced a fraud upon or deceived the defendant as to the kind or quality of the furs.” The words following the word “unless, ” contradict all that precedes that word.
    An instruction contradictory in itself is so well calculated to mislead as not to be tolerated. Thorp v. Goewey, 85 Ill. 616.

      It is not proper to inject into it an argument, as this seems to do. Chapman v. Cawrey, 50 Ill. 520; Thompson v. Force, 65 id. 372; Chittenden v. Evans, 48 id. 53; Ludwig et al. v. Sager, 84 id. 99; Bradley v. Coolbaugh, 91 id. 149; McLean County Bank v. Mitchell, 88 id. 55; City of Freeport v. Isbell, 83 id. 443; Keeler v. Stuppe, 86 id. 311.
    Mr. Emery A. Stores, for the appellees:
    Before a carrier can exempt himself from any common law liability annexed to its employment, the contract of exemption must be assented to by the shipper. It is equally clear that the burden of showing such exemption, and such assent thereto, rests upon the party affirming its existence.
    If the shipper knows that the carrier requires of him disclosures of value, and proof of that knowledge is brought clearly home to him, the inference that he has assented to such a requirement may well be drawn from his silence.
    The dealings of these parties for a year before this shij>ment was such as clearly to lead the plaintiffs to believe that the valuation clause in the receipt was not relied on.
    The plaintiffs’ fourth instruction is neither contradictory nor argumentative, but announces a correct principle of law applicable to the facts of the ease.
   Mr. Justice Dickey

delivered the opinion of the Court:

On the trial of the issues in this cause the defendant relied upon a supposed contract on the part of plaintiffs, springing from the fact that plaintiffs had accepted a receipt, in which it was provided that in want of a statement of value in the receipt the liability of defendant should not exceed $50 for each bale or package, and upon circumstances and testimony tending to show that this provision in the receipt was known to, and assented to by, the plaintiffs. Defendant also relied upon the alleged fact that the valuation was omitted from the receipt by plaintiffs for the fraudulent purpose of concealing the fact that part of the furs were fine furs, so that they might escape the payment of that part of the rates on fine furs depending upon the value. To meet these positions plaintiffs relied upon the alleged fact that they had made a special agreement with one Hopkins, the agent of defendant, that they might ship fine furs, as well as coarse, at the rate of three dollars per hundred pounds, without any additional charge on fine furs of a per cent upon their value. This allegation was stoutly denied by defendant. On it the testimony is contradictory. It ivas a vital and closely contested question. Its determination would, from its bearing upon the turning points of the case, necessarily be, and was, very important.

Upon this vital question, Nathan Weil, the agent of the plaintiffs who filled out the body of the receipt for the signature of the express company, as a witness, on cross-examination, having testified that he, in filling up the receipt, had erased from the printed blank the words “valued at, ” etc., in the receipt, and having testified that prior to March 20, 1872, plaintiffs had put a valuation on furs, and paid a charge thereon to the express company, but not for nearly a year before that date, plaintiffs’ attorney asked the witness, against the objections of defendant, “Why ?” and he answered, because he ivas “told by Mr. Boskowitz not to do it;” and, against like objection, testified Boskowitz told witness “he had an understanding with the express companies that we were to pay no valuation charges; * * * that such ivas his understanding with Mr. Hopkins, ” (the agent of defendant,) “that he was to pay no valuation, ”—and to the ruling of the court in admitting proof of what Mr. Boskowitz had told witness, defendant excepted. This was clearly error. It is not perceived upon what ground the declarations of one of the plaintiffs, not made in the presence of defendant, or constituting any part of the res gestee, could be allowed as proof against defendant. This proof had an important bearing upon a closely contested question of fact in the ease, and must have had much weight with the jury in determining in favor of plaintiffs the conflict between the testimony of one of the plaintiffs on the one hand, and that of Hopkins, Colvin, and others, on the other hand. This was a vital point in the controversy, and for this reason alone the judgment in this case must be reversed.

It is proper, however, to notice other rulings on this trial. On the upper left hand corner of the receipt given for these furs was a memorandum, when put in evidence by the plaintiffs, thus:

170

180

350 = 2 bales mink. J. & A. B. 1

185 = 1 skunk. A. & B. j

535

Weil, a witness for plaintiffs, had stated that this memorandum was put on this receipt before it was sent to the express office for signature. On cross-examination this witness had testified the weights of such packages were kept in the receipt book, and such weights were “most always” put on the receipt books. Peterson, who signed (for the company) the receipt given for these furs, testified for defendant that to the best of his knowledge that memorandum was not on that receipt when he signed it. He was asked whether or not it was customary for Boskowitz & Co., according to his observation, to put their weights on their receipts. The court ruled that he should not be allowed to answer this question, and defendant excepted. We think he ought to have been allowed to answer the question, as a contradiction of the witness Weil. This witness had been in the service of the defendant company for many years, and for a long time had been the receiving clerk of the company when these goods were shipped. It was a question in dispute whether that memorandum was on the receipt when he signed it. Weil had sworn for plaintiffs that he “most always” put the weights on the receipt. It certainly was competent to contradict him in that regard, and to that end prove that such a thing was not usual.

The instructions given to the jury, as a whole, were misleading, and in some respects palpably erroneous. The second ■instruction, given at the request of plaintiffs, was palpably misleading, and unwarranted. It was misleading to say that the receipt contained on its face no agreement for an exemption from liability. between plaintiffs and defendant, and it was misleading to assume that the exemption in the receipt was-contained in a “contract with the United States Express Company.” The only parties to the receipt are appellees and the Adams Express Company. The United States Express Company, on the face of the receipt, talcing it ever so literally, in no manner appears as one of the contracting parties. If the word “said,” in the receipt, immediately preceding the words “United States,” were stricken out, that provision would, on its face, purport to be a contract between the Adams Express Company and appellees in relation to the liability of the United States Express Company; but it does not now, nor would it even then, purport to be a contract to which the United States Express Company is a contracting party.

When this case was before this court on the appeal of J. & A. Boskowitz, it was held that there is in this receipt, on its face, such an ambiguity that as a matter of law it could not be held that this exemption related to the Adams Express Company,—that whether it did or not must depend upon proof of the circumstances under which the contract was made. It does not follow that the receipt, on its face, is a contract with the United States Express Company. The proposition that the court had no warrant to declare, as a matter of law, that this provision in the receipt was a contract in relation to the liability of the Adams Express Company, does not at all sustain the proposition that as a matter of law the contract does not relate to the liability of the Adams Express Company. The proofs tend strongly to show that by the phrase, “said United States Express Company,” the parties meant the Adams Express Company. The United States Express Company had not been mentioned above, and the Adams Express Company had been mentioned. When, therefore, the phrase, “the said United States Express Company,” was used, it needed explanation from the circumstances. Either the word “said” must be rejected, or the words “United States” must be taken as a misnomer, wherein the parties called the Adams Express Company by a wrong name. The law, in the absence of proof, does not determine this question either way. What is the true intent of the parties giving or receiving this receipt, must be determined by circumstances to be proved. It was therefore error to declare, as a matter of law, this to be a contract with the United States Express Company, as much, at least, as it was to declare that, as a matter of law, it was the contract of the Adams Express Company. It was held when this case was heretofore before this court, that whether this provision was or was not in fact a contract between appellant and appellees, depended upon matter clehors the writing. The matters depended upon proof. It was for the jury, and not for the court, to determine the truth as to matters outside of the writing.

By the fourth instruction the jury were told, in substance, that although the valuation clause in the receipt may have been known to plaintiffs, and though plaintiffs may have known that defendant intended it to apply to the Adams Express Company and to this transaction, and although plaintiffs may have accepted the receipt with all this knowledge, and without objection thereto, and although they,had agreed to pay a valuation charge on fine furs, and still omitted to state the valuation, all this would not he a fraud, and in the absence of fraud would constitute no defence. The terms of the instruction are at least calculated to convey that idea, and the instruction ought not to have been given.

It is not necessary to pass upon other alleged errors. Eor the errors indicated the judgment of the Appellate Court is reversed, and the cause remanded, that the judgment of the trial court may be reversed and the cause sent back for a new trial.

Judgment reversed.

Mr. Justice Scott : I do not concur in this opinion.


source: Caselaw Access Project

author: Mr. Chief Justice Sheldon

license: Public Domain

text:
    The Wabash, St. Louis and Pacific Railway Company v. William T. Johnson, Collector.

      Filed at Ottawa November 20, 1883.

    1. Taxes—assessment of omitted railroad personal property. Where a railroad company returns and files with the comity clerk of a county a sworn list of all its taxable property in such county, except its personal property in one town, which is omitted, it is made the duty of the town assessor to list and assess such omitted property, and if he lists it upon his general assessment roll instead of upon the county clerk’s copy of the railroad schedules furnished him, it is but an informality not affecting the substantial justice of the tax levied thereon, and furnishes no ground to enjoin the collection of the taxes extended on such assessment.
    2. Same—assessment of property not listed—no notice to owner necessa/ry. Where a person furnishes the assessor with a list and valuation of his property, which is accepted without question, the assessor has no power to alter or raise the same without notice to the party assessed; but where the assessor discovers other property than that listed, he is not required to give the owner notice before he can list and assess it.
    3. Same—when collection will be enjoined. A court of equity will not entertain a bill to restrain the collection of a tax, except in cases where the tax is unauthorized by law, or assessed upon property not subject to taxation, or where the assessment or levy has been made without legal authority, or fraud has occurred. Eor all other grounds the party must be left to his remedy at law, if any.

      Writ of Error to the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    This was a bill in chancery, filed by the railway company in the Superior Court of Cook county, to enjoin the collection of a personal property tax. A demurrer was sustained to the bill, and the bill dismissed. The case is brought here by writ of error.
    The bill sets out that in the year 1881 the company made out the schedules of its “right of way” and “rolling stock,” and filed them with the county clerk of Cook county, as required by law, and also a list of personal property other than “rolling stock, ” which list showed property in only four towns, viz: Orland, Palos, Worth and Lake; that the county clerk returned the list to the assessors of those towns, who valued the property listed as being in each' town, and then returned it to the county clerk; that the property was entered on the county clerk’s “Railroad Tax Book” for the year 1881, and the taxes were by him extended thereon, his warrant to the county collector was attached thereto, and the company paid all taxes charged against its property on that “Railroad Tax Book” to the defendant, as county collector; that by mistake and inadvertence the company omitted to return and file with the county clerk a list of its personal property other than “rolling stock” situated in the town of South Chicago; or to include it in its list so furnished; that the assessor of the town of South Chicago finding this personal property in South Chicago, did not add it to the copy of the list or schedule returned to and filed with the county clerk, and assess and value it there, but did list, assess and value it in and on his general assessment roll for the town of South Chicago, in which he listed, assessed and valued taxable property other than railroad property; that the assessor did not give the company any notice of such listing, nor did it have any notice or knowledge thereof until it was called upon by the collector of the town of South Chicago to pay the tax; that this general assessment roll, in due course, came to the county clerk, who extended the taxes against the company on that property, and delivered the tax roll or book for South Chicago, with his tax warrant, to the town collector, who applied for payment; the company refused to pay; the collector did not proceed to collect the tax, but returned it as delinquent to the county collector; that it is, by virtue of such listing, assessment, etc., and the warrant issued by the county clerk to the town collector, and the return of the tax as delinquent to him by the town collector, and not by or under any other authority, that the county collector claims the right to collect the said tax, and threatens to do so.
    The Revenue law requires railroad companies to return and file with the county clerks of the respective counties in which the railroad may be located, sworn lists of all their taxable property. Section 47 of the act provides, that-“the county clerk shall return to the assessor of the town or district, as the case may require, a copy of the schedule or list of the real estate, (other than ‘railroad track,’) and of the personal property (except ‘rolling stock’) pertaining to the railroad; and such real and personal property shall be assessed by the assessor. Such property shall be treated in all respects in regard to assessment and equalization, the same as other similar property belonging to individuals, except that it shall be treated as property belonging to railroads, under the terms ‘lands,’ ‘lots,’ and ‘personal property.’ ” Section 49 is: “If any person, company or corporation, owning, operating or constructing any railroad, shall neglect to return to the county clerk the statements or schedules required to be returned to them, the property so to be returned and assessed by the assessor shall be listed and assessed as other property. ” By section 51 the county clerk is required to procure a record book, in which to enter the railroad property of all kinds, as listed for taxation, and shall enter the valuation as assessed. He is to extend the taxes on this hook against the property. At the proper time “the clerk shall attach a warrant, under his seal of office, and deliver said book to the . county collector, upon which the county collector is hereby required to collect the taxes therein charged against railroad property,” etc.
    Messrs. Sleeper & Whiton, for the plaintiff in error.
    Mr. E. R. Bliss, for the defendant in error.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

' The statute required the railway company to return and file with the county clerk sworn lists of all its taxable prop- ■ erty in Cook county. It did return and file lists of its property, but not of all its property. In that respect it neglected to return to the county clerk the statements or schedules required to be returned to him, in which-case the 49th section of the statute made it the duty of the assessor to list and assess this omitted property. This omitted, property, then, was rightfully assessed by the assessor. But it is objected against .this assessment that the assessor should have listed this omitted property upon the county clerk’s copy of the railroad schedule furnished to him, and not upon his general assessment roll. If this be so, it would .be but a mere informality in the proceeding of the assessment, and so within section 191 of the Revenue act, that “no error or informality in the proceedings of any of the officers connected with the assessment, levying or collection of the taxes, not affecting the substantial justice of the tax itself, shall vitiate or in any manner affect the tax or the assessment thereof. ”

The point is made that the assessor. had no authority to list and assess this omitted property without notice to the railroad company, and Cleghorn v. Postlewaite, 43 Ill. 428, McConkey v. Smith, 73 id. 313, and National Bank of Shawneetown v. Cook, 77 id. 622, are referred to as sustaining the position. Those cases are only to the effect that when a person furnishes the assessor with a list and valuation of his property, which is accepted by the assessor without question, the assessor has no power afterward to alter the same without first giving the party assessed notice. But we know of no authority for the position, that if an assessor discovers other property than that listed, he must give the owner notice before he can list and assess it.

It is further contended that the county collector, the defendant here, had no authority to collect these taxes; that the county clerk is required by the statute to enter all kinds of railroad property in his “Railroad' Tax Book, ” and is required to extend all the taxes thereon on that book, and attach to it his warrant, and deliver the book to the county collector; and that this is the only way in which power is conferred on the county collector to collect railroad taxes,—by the warrant of the county clerk attached to the “Railroad Tax Book,” and delivered to the county collector; that since the statute gives the county collector, alone, power to collect railroad' taxes, and taxes against railroad property have no place on the general tax roll, and can only be extended on the county clerk’s “Railroad Tax Book, ” the fact that this personal property was entered on the general tax roll, and the tax against it extended there, did not give the town collector any power to collect the taxes against it, and so the warrant to the town collector, and his delinquent return, could not confer on the county collector any greater power to collect than the town collector had. This is a question which we do not deem it necessary to determine. This supposed want of power to collect the tax would not be a ground for the interposition of a court of equity, under the decisions of this court. The party must be left to his remedy at law in that respect. We have repeatedly held that a court of equity will not entertain a bill to restrain the collection of a tax, excepting in cases where the tax is unauthorized by law, or assessed upon property not subject to taxation, or where the assessment or levy has been made without legal authority, or fraud has occurred. Cook County v. Chicago, Burlington and Quincy R. R. Co. 35 Ill. 466; Porter v. Rockford, Rock Island and St. Louis R. R. Co. 76 id. 596; National Bank of Shawneetown y. Cook, 77 id. 622.

We find no error in sustaining the demurrer and dismissing the bill, and the decree is affirmed.

Decree affirmed.


author: Mr. Justice Mulkey

text:
    Charles Bearss et al. v. Thomas P. Ford.

      Filed at Ottawa November 20, 1883.

      1. Mortgage—whether an absolute deed with agreement for repurchase, or a mortgage. Where a debtor whose indebtedness is secured by deeds of trust, and to avoid a threatened foreclosure, conveyed the mortgaged premises to his creditor by a quitclaim deed, containing a proviso that if he should pay a certain sum (being the amount due from him, with interest and back taxes,) within one year, with interest thereon, the grantee should reeonvey the premises to him, and the grantee also executed to the grantor a lease of the premises for one year, at a rental equal to the interest on the debt, payable monthly, which monthly rental, it was recited, was to be deemed and applied as interest, under the conditions of the quitclaim deed, it was held, that the transaction was but a mortgage for the payment of the indebtedness of the grantor, and was not an absolute sale and extinguishment of, the prior indebtedness.
    2. Whether a deed for land is an absolute sale and conveyance, with an agreement for a repurchase by the grantor, or a mortgage to secure the payment of money, is a.question of fact, depending upon the intention of the' parties to it at the time of its execution.
    3. Same—when deed absolute in form is given as a further security, creditor may still enforce his prior securities. Where a deed absolute in form, with a clause for repurchase, is given in consideration of an existing mortgage indebtedness, the court is more inclined to treat it as a mortgage than where given upon an original advance, and when so treated the new mortgage will not be regarded as a substitute for the former security, unless the intention to that effect is manifest; and in such cases the original mortgage may be foreclosed, notwithstanding the giving of the new one.
    4. If the new instrument operates as a satisfaction or extinguishment of the mortgage indebtedness, it will be regarded as a sale and conveyance of the equity of redemption, with an agreement for a repurchase; but if it does not so operate, such new instrument will be treated as an additional security for the debt,—or, in other words, as an additional mortgage,—and the creditor may enforce either one.
    5. Same—deed—when a mortgage, continues so. Parties can not make a conveyance of land, absolute in form, a security for the payment of money by a given day, and if payment is not then made, have it treated as an absolute sale and conveyance. Every deed takes effect from delivery, and its character thereby becomes at once fixed. If a mortgage when delivered, it continues so until the right of redemption is barred by some of the modes recognized by law. The parties can not, even by express stipulation in a mortgage, cut off the right of redemption.
    6. Evidence—extrinsic, to show intention of parties by their written contracts. In arriving at the intention of the parties in executing a written contract, the instrument itself must first be looked to, for, as a general rule, where there is nothing equivocal or ambiguous in its terms it should be given effect according to the plain and obvious import of the language used, unless to do so will lead to unreasonable or absurd consequences.
    7. Same—exception to rule excluding parol evidence to explain. There is a well established exception to the general rule by which parol evidence is not admitted to vary or explain a written contract, which permits the showing of a deed plain and unambiguous in its terms, and absolute on its face, to be a mortgage, or mere security for the payment of money, or the performance of some other act or duty. So an instrument substantially in the form of a mortgage may, in like manner, be explained, with a view of arriving at the real intention of the parties.
    8. Contbact—construction, when several writings must be construed together. In construing whether’ a conveyance is an absolute deed, or a mortgage, or security for the payment of money, it must be considered in connection with a lease accompanying it, from the grantee to the grantor, when both are parts of the same transaction. In such case they will be construed as though they were different parts of the same instrument.
    9. Error—in admission of evidence, afterwards cured. If the admission of a deed of trust in evidence, without any explanation as to an erasure and interlineation, except a memorandum of the officer taking the acknowledgment that “all erasures and interlineations” were made before signing, is error, it will be cured by the subsequent admission of evidence giving the explanation desired, and for the want of which the deed was objected'to.
    10. Estoppel—by deed, from denying validity of prior deed. Where a deed of trust showed on its face that the name of the original trustee was erased, and that of another inserted, and the grantors afterwards gave a new deed to their creditor, in which 'is expressly recognized the validity of the trust deed, the grantors therein will be estopped from raising any question as to the authenticity or binding force of the trust deed.
    Appeal from 'the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Will county; the Hon. Josiah McBoberts, Judge, presiding.
    Mr. C. W. Brown, for the appellants:
    Any material alteration of an' inátru-meht, made without the assent of the party- having executed it, will have the effect of avoiding it. Gardner v. Harback, 21 Ill. 129; Prettyman v. Goodrich, 23 id. 330; Kelly v. Trumbull, 74 id. 428; Wyman v. Youmans, 84 id. 403; People v. Organ, 27 id. 27,
    A party who receives a paper interlined in a material part must assume the responsibility of explaining it afterward, when claiming the benefit of the paper, the presumption of law being that the interlineation was made after its execution. Hodge v. Gilman, 20 Ill. 437.
    A sale with an agreement for a repurchase comes very near in form and substance with a mortgage, but the rights of the parties under these instruments are very different. A mortgage may be redeemed at any time before foreclosure, while there can be no redemption from a conditional sale' after the day appointed. 1 Jones on Mortgages, sec. 262, note 4.
    An absolute deed delivered ih payment of a debt is not converted into a mortgage merely because the grantee therein gives a contemporaneous stipulation binding him to reconvey on being reimbursed, within an agreed period, an amount equal to the debt and the interest thereon. If the conveyance extinguishes the debt, and the parties so intend, so that a plea of payment would bar an action thereon, the transaction will be held an absolute sale notwithstanding. 1 Jones on Mortgages, sec. 267; Turner v. Kerr, 44 Mo. 429; Farmer v. Grose, 42 Cal. 169; Baugher v. Merryman, 32 Md. 185 ; Weathersly v. Weathersly, 40 Miss. 462; Morrison v. Brand, 5 Daly, (N. Y.) 40.
    The agreement to reeonvey the lands is not necessarily, either in law or in equity, a defeasance. 1 Jones on Mortgages, sec. 260, 261, and cases cited in note.
    If an absolute conveyance be made and accepted in payment of an existing debt, and not merely as security for it, an agreement by the grantee to reeonvey the land to the grantor upon receiving a certain sum within a specified time, does not create a mortgage, but a conditional sale, and the grantee holds the premises subject only to the right of the grantor to demand a reconveyance according to the terms of the agreement. 1 Jones on Mortgages, sec. 265, and cases cited in note; Pitts v. Cable, 44 Ill. 103.
    Although the securities are not surrendered, if the debt is extinguished a simple right to repurchase does not make the conveyance a mortgage. West v. Hendrix, 28 Ala. 226; Baxter v. Wiley, 9 Vt. 276; Todd, v. Campbell, 32 Pa. St. 250 ; 1 Jones on Mortgages, sec. 326.
    Messrs. Hill & Dibell, for the appellee s
    A mortgage is a conveyance of land as a security for the repayment of money borrowed, with a proviso that such conveyance shall be void on payment of the money, etc., as stipulated. 2 Bouvier’s Law Diet. “Mortgage,” 3; 1 Jones on Mortgages, sec. 241.
    A deed with a bond or agreement to reeonvey the estate upon payment of a certain sum of money, has always been held to constitute a legal mortgage. 1 Jones on Mortgages, sec. 244.

      If a conveyance of land be made in fee, and the grantee gives back a bond to reconvey upon repayment of the consideration money, and to permit the grantor to occupy the premises at a rent equal to the interest on -the consideration, these are parts of one and the same transaction, and constitute a mortgage. 1 Jones on Mortgages, sec. 273; Preschbaker v. Feaman, 32 Ill. 482; Ewart v. Walling, 42 id. 453; Woodward v. Pickett, 8 Gray, 617; Wright v. Bates, 13 Vt. 341.
    The fact that the evidences of the indebtedness are not given up or cancelled on the debtor’s making a conveyance, is strong evidence that the conveyance is a-mortgage. Jarvis v. Frink, 14 Ill. 396; Dunphy v. Riddle, 86 id. 28; Sutphen v. Cushman, 35 id. 196; Rue v. Dole, ante, p. 275.
    The taking-of a second mortgage on the same land is no waiver of the original mortgage. 2 Jones on Mortgages, sec. 929; Gregory v. Thomas, 20 Wend. 17; Hill v. Beebee, 3 Kern. 562.
    A conveyance by mortgagor to mortgagee of the mortgaged premises, even in payment of the mortgage debt, extinguishes and releases, or does not extinguish and release, the mortgage lien, according to the intention of the mortgagee, if that is shown, and if not, then as may be for the interest of the mortgagee. 4 Kent’s Commentaries, 102; 2 Washburn on Beal Prop. 180-182, secs. 1, 2; 1 Jones on Mortgages, secs. 857, 870; Campbell v. Carter, 14 Ill. 286; Weiner v. Heintz, 17 id. 262; Fitts v. Davis, 42 id. 391; Edgerton v. Young, 43 id. 468 ; Huebsch v. Scheel, 81 id. 285; Richardson v. Hockenhull, 85 id. 124; Shaver v. Williams, 87 id. 470; Worcester National Bank v. Cheney, id. 614; Ætna Life Ins. Co. v. Corn, id. 170; Young v. Morgan, 89 id. 199; Meacham v. Steele, 93 id. 143; Campbell v. Trotter, 100 id. 281.
    There is no presumption, from inspection, when, or by whom, or for what purpose, the instrument has been altered. Reed v. Kemp, 16 Ill. 449; Gillett v. Sweet, 1 Gilm. 489; 1 Greenleaf on Evidence, sec. 564, note, sec. 566, note 1.
   Mr. Justice Mulkey

delivered the opinion of the Court:

On May 22, 1874, the appellant Charles Bearss borrowed of Thomas P. Ford, the appellee, $1200, giving his note therefor, and to secure the payment thereof executed a deed of trust to T. H. Hutchins upon a tract of land in Will county, this State, the same being Bearss’ homestead. On the 28th of December following, Ford made another loan of $290.36 to Bearss, for which he and his wife executed to Ford their promissory note, and a deed of trust to Elbert T. Chase, on the same property, to secure the loan. Both the above notes bear interest at the rate of ten per cent per annum, payable semi-annually, and by their terms matured on 'the 22d of May, 1879. These trust deeds contained the usual clause that if default was made in the payment of the interest, or any part of it, according to the terms of the note the whole of the principal and interest should thereupon become due and payable. In April, 1S78, a part of the interest and taxes on the premises being in arrears, Ford was threatening to foreclose, when negotiations opened between him and Bearss, resulting, after some delay, in the following arrangement : Bearss and wife were to execute a conveyance of the premises to Ford, with a proviso in it that if Bearss should, on or before the first of July, 1879, pay the amount of the two trust deeds, interest, back taxes, etc., the conveyance was to be void, and Ford was to reconvey to Bearss. On the other hand, Ford was to execute to Bearss a lease of the premises from the first day of July, 1878, to the first of July, 1879, at an annual rental of $161.88, to be paid in equal monthly installments, being $13.49 per month. These papers were accordingly made out, and placed, in the hands of C. W. Brown, the attorney of Bearss, with the understanding he was to hold them until the first of July, 1878, so as to afford Bearss an opportunity, in the meantime, of paying Ford the amount of interest and back taxes due under the trust deeds, in which event Brown was not to deliver them at all, hut if ■ Bearss failed to make such payment, then the lease and deed were to be delivered to Ford. Bearss having failed to make payment by the first of July, as contemplated by the above arrangement, Ford sent Hutchins for the deed and lease, and they were delivered to him by Brown about five o’clock in the evening. On examination Ford found there was no release of the homestead in the body of the deed, and for that reason returned the papers next morning to Brown’s office, from whence they had been taken the evening before, and were left there for Bearss, who declined to receive them or to execute a new deed with waiver of homestead, and thereupon Ford filed the present bill to foreclose the two deeds of trust. There was a hearing of the cause upon the merits in the circuit court of 'Will county, resulting in a decree in favor of appellee, which, on appeal to the Appellate Court for the First District, was affirmed, and the case comes here from the latter court for review..

The most important question presented by this record relates to the legal effect of the deed executed by Bearss and wife, in pursuance of the arrangement entered into between him and Ford in April, 1878, as heretofore stated. It is contended by appellee that the facts proven do not show a valid delivery of that instrument, hut that, conceding a sufficient delivery is shown, it is in legal effect nothing more than another mortgage to secure the same debt. Appellants maintain the negative of both these propositions, and insist the deed in question was, and is, an absolute sale and transfer of the estate, and not a mere security for a prior debt, and that the condition contained in it is simply an 'undertaking or covenant on the part of the grantee to resell to the grantor, upon specified terms, within a limited time.

Assuming, for the purposes of the argument, the evidence shows a sufficient delivery of the instrument in question, (a matter about which we express no opinion,) we shall proceed at once to the consideration of the inquiry, was the deed in question an absolute sale and conveyance with an agreement for a repurchase by the grantor, or was it a mortgage ? The answer to this question, of course, depends upon what was intended by the parties to it at the time of its execution. In arriving at the intention of the parties the instrument itself must be first looked to, for, as a general rule, where there is nothing equivocal or ambiguous in the terms of a written instrument it should be given effect according to the plain and obvious import of the language used, unless to do so would lead to unreasonable or absurd consequences. A well established exception to this general rule is found in the law of mortgages, which permits the showing of a deed plain and unambiguous in its terms, and absolute on its face, to be a mortgage or mere security for the loan of money, or for the performance of some other act or duty. Yet no question of that kind is presented in this ease, but rather the counterpart of it, for here the instrument under consideration is substantially in form a mortgage, and the question is, may it nevertheless be shown to be in legal effect a different kind of instrument ? However this may be as a general proposition, we are of opinion, under the circumstances of this ease, the whole subject is open to inquiry, with a view of arriving at. the real intention of the parties.

In looking at the deed in question we must consider it in connection with the lease accompanying it, as both are parts of the same transaction, and must therefore be construed as though they were different parts of the same instrument. The deed itself bears date April 30, 1878, and recites that Bearss and wife, as parties of the first part, for the consideration of $1619.66, “have remised, released, aliened and quitclaimed, ” unto Ford and his heirs, all their right, title, etc., in and to the premises in question; that the consideration of. the deed is the amount of indebtedness secured by the two trust deeds in controversy, and that» the conveyanee is made on account of default in the payment of said indebtedness, and to save the expenses of foreclosure. Then follows the habendum clause, “to have and to hold the same, ” etc., “upon condition, however, if said party of the first part shall, on or before the 1st of July, 1879, pay, or cause to be paid, by themselves or their heirs and assigns, said sum of $1619.66, with interest thereon at 'ten per cent per annum from July 1, 1878, together with all taxes which are or may be levied upon the said premises, with ten per cent interest if said taxes are paid by party of second part, then this deed to be void;' and said party of second part agrees, for himself and wife, to execute to party of first part a quitclaim deed for said premises upon compliance with said condition. ” The lease accompanying this deed is very short, and outside of the fact of making the lease, it contains nothing that has any special bearing on the question in hand, except' the last clause, which is as follows “It (the lease) further witnesseth, that said monthly rental, as paid, is to be deemed and applied as interest, under the conditions of a quitclaim deed from said Bearss arid wife to said Ford for said premises, béaring date April 30, 1878.”

As already indicated, if we leave out of view one or two expressions in the deed, it is unquestionably in form a mortgage, and had it been given upon an original advance, of money, the fact of its being a mortgage would hardly have been questioned; and yet it must be conceded that courts, in construing instruments of this kind, when the consideration is an existing mortgage indebtedness, are more inclined to treat them as mortgages than when given upon an original advance, and when so treated they will not be regarded as a substitute for the former security, unless the intention to that effect is manifest, and in such cases the original mortgage may be foreclosed notwithstanding the giving of the new one, hence the principle “once a mortgage always a mortgage,” has become a leading fundamental doctrine of the law of mortgages. The most satisfactory, and as a general rule the controlling, test in cases of this kind is, does the giving of the new instrument operate as a satisfaction or extinguishment of the mortgage indebtedness ? If it does not, such new instrument will be treated as an additional security for the debt,—or, in other words, as an additional mortgage; but if otherwise, it will be regarded as a sale and conveyance of the equity of redemption with an agreement for repurchase.

Testing this case by the rule suggested, we have no hesitancy in holding the so-called quitclaim deed was a mere additional security, and not an absolute conveyance of the property. We are led to this conclusion by a number of considerations: First, the instrument contains no provision that it shall operate as any extinguishment or satisfaction of the mortgage debt; second, we see nothing in it looking to, much less providing for, a surrender to Bearss of the notes and prior trust deeds,—the evidences of such indebtedness; third, we find nothing in the provisional agreement between the parties, under which the deed and lease were executed, requiring the surrender or cancellation of the notes and trust deeds; and, finally, the lease in express terms recognizes the existence of the mortgage debt after the period fixed for the delivery of these instruments, viz., the 1st of July, 1878.

As already shown, the lease in express terms provides the monthly rental of the premises shall be applied as interest, under the deed of that date, which conclusively' shows the parties did not intend, at least for the time being, to extinguish the mortgage debt, otherwise the rent could not be applied as interest. Interest on what ? Manifestly, the old mortgage indebtedness, for there was no other indebtedness to which that provision of the lease could apply.

Looking at the terms of these instruments in the light of all the circumstances disclosed by the evidence, we are satisfied the object of the parties in executing them was not to satisfy or extinguish the mortgage indebtedness, but to continue the right of redemption until the 1st of July, 1879,— and this is wholly inconsistent with the hypothesis that the instrument in question was an absolute deed. The parties may have intended, and doubtless did intend, that if the premises were not redeemed before the 1st of July, 1879, it should then become so in order to avoid the expenses of a foreclosure. But it is evident that parties can not, by mere agreement, change the law of the land. (Dicey on Parties, 37, 38, side, page.) Every deed or other instrument takes effect from its delivery, and its character thereby becomes at once fixed. It can not, after such delivery, be one thing to-day and another to-morrow. If a mortgage when delivered, it continues to be such until the right of redemption is barred by. some of the modes recognized by law. Hence rfbthing is more firmly established in the law of mortgages than that it is not competent for the parties, even by express stipulation, to cut off the right of redemption, and to permit them to make such an instrument an absolute deed upon some future contingency, would simply be cutting off the right of redemption, which, as we have just seen, can not be done. 2 Jones on Mortgages, sec. 1039, et seq.

After a very careful consideration of the whole ease we are satisfied the law is with the appellee on this question, and without entering upon any general review of the cases we will content ourselves with calling attention to the following authorities in support of the conclusion reached: • 1 Jones on Mortgages, sec. 273; Preschbaker v. Feaman, 32 Ill. 482; Ewart v. Walling, 42 id. 453; Croff v. Ballinger, 18 id. 203; Jarvis v. Frink, 14 id. 396; Sutphen v. Cushman, 35 id. 196; Dunphy v. Riddle, 86 id. 28.

It appears in the junior trust deed of the 28th of December, 1875, as originally written, the name of T. H. Hutchins, the officer before whom the acknowledgment was taken, was inserted as trustee, and that while in the act of taking the acknowledgment, or immediately afterwards, it occurred to him that by reason thereof he could not properly take the acknowledgment, whereupon he struck his own name out, and inserted in its stead that of E. T. Chase. Mrs. Bearss claims that the alteration was made without her knowledge or consent, and after she had left the house where it was taken, though she concedes she was called by her husband and told something was wrong, and requested to come back, and he admits the change was made with his consent; but she and her husband both state she refused to come back. Hutchins, the officer, swears: “My best recollection is that I called to Bearss and wife, and informed them that the change was necessary. The change was then made without objection from anybody. ” After all this had occurred the officer’s certificate was made out in due form, and we think, under the authorities, it is, of itself, entitled to more weight than "the testimony by which it is attacked. Fitzgerald v. Fitzgerald, 100 Ill. 385; Strauch v. Hathaway, 101 id. 11; Warrick v. Hull, 102 id. 280.

When this deed was offered in evidence, it was objected to on the ground of the erasure occasioned by the substitution of Chase’s name for Hutchins’. There was at the foot of the deed, when offered^ in evidence, the following memorandum, signed by the officer taking the acknowledgment: “All erasures and interlineations made before signing.” The court overruled the objection and admitted the deed in evidence, and this is assigned for error. Conceding the court should have heard some evidence explanatory of the erasure in question in addition to that afforded by the memorandum, yet a court of error will not reverse for such an error when the record before it affords, as it does in this case, the very explanation which it is complained was not given as a foundation for the instrument’s admission in evidence. When the explanatory evidence is subsequently offered it cures the error.

But outside of all this there is another complete answer to this objection. The appellants, by their deed of the 30th of April, 1878, which is duly acknowledged by them both, expressly recognize the validity of this junior trust deed, and they are therefore, under the circumstances of this case, estopped from raising any question as to its authenticity or binding force. We think the decided weight of evidence shows that Bearss and his wife both knew of the alteration in question at the time of making the latter deed, and they can not now be heard to complain after such recognition of the former deed.

We see no reason for disturbing the decree of the court below, and it will therefore be affirmed.

Decree affirmed.


author: Mr. Justice Scholeield

text:
    John M. Bullock v. Martha E. Battenhousen.

      Filed at Ottawa November 20, 1883.

      1. Recording daw—record of deed of trust referring to note without giving amount, no notice of amount. Under the registry laws of this State the record of a trust deed which simply recites that the grantor had, on the same date of the deed, made his promissory note, payable to, etc., without giving its amount, will not charge subsequent bona fide purchasers without actual notice with knowledge of the amount for which the note was given.
    2. Mortgage—should disclose the amount of debt secured. If a mortgage is given to secure an ascertained debt, the amount of that debt should be stated; and if it is intended to secure a debt not ascertained, such' data should be given respecting it as will put any one interested in the inquiry upon the track leading to a discovery. If it is given to secure an existing or a future liability, the foundation of such liability should be set forth.
    3. The policy, though not the letter, of our statutes, requires in all cases a statement upon the record of the amount secured by a mortgage or deed of trust.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.

      On the 11th of June, 1872, Eben E. Bunyan made and delivered to John M. Bullock his promissory note for $6000, payable five years after date, with interest thereon at ten per cent per annum, payable semi-annually, and at the same date Bunyan and wife executed and delivered to Bullock a deed of trust conveying the east half of section 28, and the east half of the north-east quarter of section 33, town 36 north, range 12 east, third principal meridian, in Cook county, to John B. Bullock, trustee, upon the following trust, that is to say:
    “Whereas, said Eben E. Bunyan has made his promissory note, bearing date the 11th day of June, 1872, payable to the order of John M. Bullock, five years after date, with interest at the rate of ten per cent per annum, payable semi-annually, * * in ease of default in the payment of the said promissory note and interest, or either or any part thereof, * *- * on the application of the legal holder of said note, it shall be lawful for the said party of the second part, his heirs, assigns or successors in trust, to enter into and upon the premises hereby granted, * * * and to sell and dispose of the said premises, * * * and out of the proceeds of such sale, after first paying all costs of advertising and sale, commissions, and all other expenses of this trust, and interest due on said note, according to the tenor and effect thereof, rendering the overplus (if any) unto the said party of,, the first part, his legal representatives or assigns, on reasonable request. * * * And it is stipulated and agreed that in casé of default in the payment of said promissory note or interest, as aforesaid, of a breach in any of the covenants or agreements herein mentioned, the whole of said principal of said promissory note, and the interest to the time of sale, shall, at the option of the legal holder of said note, become due and payable, and the said premises may be sold as if .the said indebtedness had matured.”

      This instrument was filed for record in the proper office on the 21st of June, 1872, and duly recorded oñ the same day. Payments appear to have been made on the promissory note by Runyan, as follows: June 11, 1873, $600, as interest; July 1, 1875, $1200, as interest.
    The following instrument was duly filed for record in the proper office on the 12th of September, 1874, and recorded on the 22d day of September, 1874, to-wit:
    “Know all men by these presents, that John R. Bullock, of the city of Waukegan, in the county of Lake, and State of Illinois, for and in' consideration of one dollar, and for other good and valuable considerations, • the receipt whereof is hereby confessed, do hereby grant, bargain, remise, convey, release and quitclaim unto Eben E. Runyan, of the city of Chicago, in the county of Cook, and State of Illinois, all the right, title, interest, claim or demand whatsoever I may have acquired in, through or by a certain trust bearing date the 11th day of June, A. D. 1872, and recorded in the recorder’s office of Cook county, in the State of Illinois, (in book 86 of “Records,” page 483,) to the premises therein described as follows, to-wit: The east half of section twenty-eight (28), and the east half of the north-east quarter of section thirty-three (33), in township number thirty-six (36) north, range twelve (12) east of the third principal meridian, in the county of Cook, in the State of Illinois, together with all the appurtenances and privileges thereunto belonging or appertaining.
    “Witness my hand and seal this 7th day of September,
    A. D. 1874. John R. Bullock, Trustee. [Seal.] ”

    “I, Frederick S. Baird, a notary public in and for the said county, in the State aforesaid, do hereby certify that John R. Bullock, trustee, personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person, and acknowledged that he signed, sealed and delivered the said instrument as his free and voluntary act, for the uses and purposes therein set forth.
    “Given under my hand and notarial seal this 12th day of September, A. D. 1874.
    Frederick S. Baird,
    [Notarial seal.] Notary Public.”

    On the 16th of July, 1874, Bunyan and wife executed and delivered to Christian Battenhousen a deed for the said east half of section 28, and also for the west half of the northeast quarter of section 33, all in town 36 north, range 12 west, in Cook county. John M. Bullock, on the 30th of August, 1877, filed his bill in chancery in the office oi the clerk of the circuit court of Cook county, against Runyan and wife, and Christian Battenhousen, Martha Batteiihousen, and others, alleging therein, among other things, that said pretended release was a forgery, the non-payment of the amount due on the promissory note executed to him by Runyan, after deducting certain admitted payments, and that Battenhousen is a purchaser junior to and subordinate to his rights under the deed of trust, and praying that said pretended release of John R. Bullock be.set aside, etc.; that said deed of trust be foreclosed, and the premises therein described be sold, etc., for the payment of the amount due on the said promissory note, etc. Christian and Martha Battenhousen answered, denying the forgery of the release of John R. Bullock, alleging they were purchasers for full value, and in good faith believing, as Runyan then assured them, that the premises were free of all incumbrances; that they are Germans, unacquainted with the English language, and relied upon what the records disclosed and Runyan assured them,—that the deed of trust to John R. Bullock, trustee, was released.
    Replication was filed, and the cause was heard at the March term, 1880, of the circuit court, on bill, answer, and proofs then introduced, and the court thereupon decreed that the pretended release of John R. Bullock be set aside, and that the premises be sold for the payment of the amount due to John M. Bullock on the said promissory note. The Battenhousens appealed from this decree to the Appellate Court for the First District, and that court, at its October term, 1880, reversed •the judgment of the circuit court, and remanded the cause for further proceedings. After the cause was remanded Christian Battenhousen died, and at the October term, 1881, of the circuit court, the déath of Christian Battenhousen was suggested, and leave was given to Martha Battenhousen to file an amended and supplemental answer, which she then proceeded to do. In this answer Martha Battenhousen denied, specifically, all the material allegations of the bill, and charged that the trust deed is of no binding force, validity or effect as a lien upon ’the premises, and against the defendant, and that it does not secure -said indebtedness or said note, and that the same is not now, and never has been, a lien upon said premises for any purpose, against said defendant; that in July, 1874, Christian Battenhousen purchased of Bunyan the west half of the north-east quarter of section 33, and the east half of section 28, town 36 north, range 12 east, third principal meridian, for $20,000, and that Bunyan executed to him a warranty deed therefor, • in which he covenanted that the premises were free from incumbrance; that Battenhousen then paid Bunyan $4100 of the purchase money, and executed notes, and mortgage upon the premises, securing deferred payments in one, two, three, four, five, six, seven and eight years, with eight per cent interest, payable annually, which mortgage was then recorded; that at the time of the purchase Bunyan represented to Battenhousen that the premises were clear of all incumbrances; that Battenhousen had no actual knowledge or notice of the trust deed, and that the record thereof was not constructive notice of the existence of the same for the purposes claimed in the bill, or for any' purpose, and that said trust deed is insufficient to create a lien upon said premises, as against defendant; that Battenhousen, after said release was filed for record, relying thereon, paid off a large amount of said indebtedness; that $20,000 was an adequate price for said premises; that Runyan disposed of said notes, before due, to parties who now hold them; that on the 5th of April, 1881, Battenhousen conveyed the premises t'o defendant. To this there was also replication filed, and the cause was again heard at the March term, 1882, of the circuit court, when a decree was again rendered setting aside the release as a forgery, and foreclosing, etc., the trust deed. An appeal was also prosecuted from this decree to the Appellate Court for the First District, and that court, at its October term, 1882, reversed the decree of the circuit court, and refused to remand the cause, and this appeal is prosecuted to reverse that judgment.
    Messrs. Searls & Cook, for the appellant:
    Whatever is sufficient to put a subsequent purchaser on inquiry is notice to him of what such inquiry would lead to the knowledge of the inquirer. 1 Story’s Eq. Jur. (12th ed.) sec. 403; 2 White & Tudor’s Leading Cases in Equity, part 1, p. 117; Parkist v. Alexander, 1 Johns. Ch. 394; Bent v. Coleman, 89 Ill. 364; United States Mortgage Co. v. Gross, 93 id. 483; Watt v. Schofield, 76 id. 261; Buchanan v. International Bank, 78 id. 500; Chicago, Rock Island and Pacific R. R. Co. v. Kennedy, 70 id. 350; Merrick v. Wallace, 19 id. 486; Morrison v. Kelley, 22 id. 610.
    It is urged by appellee that the foregoing rule and decisions are inapplicable to a mortgage, as between a mortagee and a purchaser, for value, from the mortgagor having no actual notice; and in this case, as the record does not state the amount in dollars secured by the note, that Battenhousen was not called upon to inquire as to it, and therefore no recovery can be had against him. On the contrary, we urge that all the description required to be made of the debt in a mortgage is a general one, which will put those interested upon inquiry. 1 Jones on Mortgages, (2d ed.) secs. 343, 70; Youngs v. Wilson, 27 N. Y. 351; Babcock v. Lisk, 57 Ill. 327; Booth v. Barnum, 9 Conn. 286; Griswold v. Mathews, 5 id. 442; Wright v. Frost, 3 id. 146; Crane v. Deming, 7 id. 387; Frink v. Branch, 16 id. 259; Utley v. Smith, 24 id. 290; Lewis v. De Forest, 20 id. 427; North v. Belden, 13 id. 376; Somerworth Savings Bank v. Roberts, 38 N. H. 22; Kellogg v. Frazier, 40 Iowa, 502; Reckilson v. Richardson, 19 Cal. 330; Williams v. Moniteau National Bank, 72 Mo. 292; Hurd v. Robinson, 11 Ohio St. 232; Gill v. Pinney, 12 id. 38; Boody v. Davis, 20 N. H. 140; Bassett v. Bassett, 10 id. 64; Boyd v. Parker, 43 Md. 182; Robinson v. Williams, 22 N. Y. 380; Michigan Ins. Co. v. Brown, 11 Mich. 266; Carnall v. Ducal, 2 Kan. 136; Aull v. Lee, 61 Mo. 160; Pike v. Collins, 33 Maine, 38; Hodgen v. Charman, 44 N. H. 572; Clark v. Hyman, 55 Iowa, 15; Brookings v. White, 49 Maine, 479; Vanmeter v. Vanmeter, 3 Gratt. 148; Kramer v. Farmers and Mechanics’ Bank, 15 Ohio, 253; Burdett v. Clay, 8 B. Mon. 287; Jones v. Berkshire, 15 Iowa, 248; Paine v. Benton, 32 Wis. 491.
    Where the rule is held otherwise it is in consequence of the peculiar language of the registry laws.
    Messrs. Bosenthal & Pence, for the appellee:
    There are two necessary elements to constitute a mortgage. It must be a conveyance, and that must be as a security. By this mortgage no indebtedness is secured. The note therein described would read as follows:
    “Chicago, June 11, 1872.

    “I promise to pay to the order of John M. Bullock, five years after date, with interest at the rate of ten per cent per annum, payable semi-annually.
    E. B. Bunyan.

      The debt secured is the principal thing, and the mortgage the mere incident. If the principal thing is void or inoperative, so will be the incident. Lucas v. Harris, 20 Ill. 169; Ryan v. Dunlap, 17 id. 43.
    An instrument which can not operate as a mortgage as it stands, is a nullity, and is not entitled to be recorded under our statutes, and is not constructive notice of anything if recorded. Schultze v. Houfes, 96 Ill. 335; Houfes v. Schultze, 2 Bradw. 196; Moore v. Hunter, 1 Gilm. 317; St. John v. Conger, 40 Ill. 536; James v. Morey, 2 Cow. 310; Mesich v. Sunderland, 6 Cal. 315; Kerns v. Savage, 2 Watts, 77; Tilmand v. Oswand, 12 S. & M. 265; Farmers and Merchants’ Bank v. Bronson, 14 Mich. 369; .Gales’ Exrs. v. Morris, 29 N. J. Eq. 226; Racoiullat v. Rene, 32 Cal. 452; Disque v. Wright, 49 Iowa, 538; White v. Carpenter, 2 Paige, 248; Lambert v. Hall, 7 N. J. Eq. 439.
    It is fraudulent per se to give a mortgage for the purpose of securing an ascertained debt without stating the amount thereof in the mortgage.
    The spirit of our recording system requires that the record of a mortgage should disclose, with as much certainty as the nature of the case will admit, the real state of the incumbrance. If a mortgage is given to secure an ascertained debt, the amount of such debt should be stated. By omitting to so state the debt the widest door is opened for fraud of every description, and to prevent the same the law declares such a mortgage fraudulent and void as to creditors and subsequent purchasers. Metropolitan Bank v. Godfrey, 23 Ill. 603; North v. Belden, 13 Conn. 376; Hart v. Chalker, 14 id. 77; Pearce v. Hall, 12 Ky. 209.
   Mr. Justice Scholeield

delivered the opinion of the Court:

We perceive no sufficient reason for disturbing the judgment of the Appellate Court. We concur with that court in holding that under our registry laws the record of this trust deed does not charge subsequent bona fide purchasers without actual notice°with knowledge of the amount of the indebtedness of the promissory note set out in the bill. .We concur, also, in the main, with the reasoning expressed by that court in its opinion, as reported in 11 Bradwell, 665.

It is true, as contended by counsel for appellant, that in Metropolitan Bank v. Godfrey, 23 Ill. 603, therein referred to, the question before the court was not as to the sufficiency of a particular description of indebtedness, as it is here, but as to the effect of an absolute deed referring to no indebtedness; but what was there said may be regarded as a reason equally cogent here. The language there was: “The spirit of our recording system requires that the record of a mortgage should disclose, with as much certainty as the nature of the ease will admit, the real state of the incumbrance. If a mortgage is given to secure an ascertained debt, the amount of that debt should be stated, and if it is intended to secure a 'debt not ascertained, such data should be given respecting it as will put any one interested in the inquiry upon the track leading to a discovery. If it is given to secure an existing or a future liability, the foundation of such liability should be set forth. North v. Belden, 13 Conn. 376; Hart v. Chalker et al. 14 id. 77.”

This is peculiarly pertinent to the facts of the present case, and one of the authorities quoted in support of the language is literally analogous. In Hart v. Chalker, the condition in the mortgage, which was condemned because of the insufficiency of the description of the debt, ran thus: “The condition of this deed is, that whereas, said William Chalker has this day executed his note of hand to said Hart, dated 10th of May, 1834, on demand, with interest, if said Chalker shall truly and faithfully pay to said Hart the amount of said note, agreeable to the tenor thereof, then this deed to be void, otherwise to remain in full force and effect.”

The policy, though not the letter, of our statutes requires, in all cases, a statement upon the record of the amount secured. Thus, in section 11, chapter 30, Rev. Stat. 1874, page 274, the form of mortgage there given requires the mortgage to “recite the nature and amount of indebtedness.” And in section 14, chapter 95, Rev. Stat. 1874, page 713, notices of sales of real estate pursuant to powers are required to state “the amount of indebtedness the instrument was given to secure,” and “the amount claimed to be due.” A statement upon the record of the amount claimed to be due informs all what lien is claimed. They know what they must contest, or subject to what they must take, in subsequently dealing with the property. It prevents secret conspiracies between mortgagors and mortgagees as to the fact and amount of indebtedness to the prejudice of subsequent purchasers and creditors, by compelling them to at once make known the real claim. In some instances, subsequent dealers with mortgaged property could not have information from the holders of indebtedness secured by mortgage, because they could not be found,—as in the case of negotiable securities running for a long time, and negotiated many times before maturity; and it might often be, as in the instance before us, perilous to rely on the word of the mortgagor. Undoubtedly, as between mortgagor and mortgagee, and as to persons having actual notice of the facts, both at common law and under our statute, a deed absolute on its face may be held to be a mortgage; but such eases are totally unaffected by our registry laws, and can not therefore have the slightest analogy to the present case.

It may also be well to observe that the present case is in nowise analogous to cases wherein the debt is described by reference to another instrument. In those cases there is only the labor of going to the other instrument, where full and reliable information can be attained. It is fixed, and beyond evasion or perversion. But that is not the ease where the reference is to an individual whose interest may be to misrepresent the truth, or who may not, with reasonable efforts, be found. A note for one amount as well as for another will answer the description here, and this note might have been lawfully negotiated and transferred many times before maturity, and its holder then not have been traceable except at a labor and expense beyond any benefit to be derived from the knowledge he could impart. To hold this sufficient would, in cases that may readily and not unreasonably be conceived, practically prohibit subsequent parties from having anything to do with the property.

Babcock v. Lisk, 57 Ill. 327, and Farrar v. Payne, 73 id. 82, cited and relied upon by counsel for appellant, are clearly distinguishable in principle from the present ease. In the first named case it was simply a question of construction whether $500, named as the consideration 'for executing the mortgage, was [a part of the sum secured by the mortgage, and it was held that it was,—that by, proper construction of the language employed the mortgage was expressly to secure the payment of this sum, and also the sum of $70, evidenced by a promissory note. In the other case, the amount of the note ($651) was given, and the only objection was that it was not stated when it would become due, as to which, quite obviously, considerations different from those applicable to a failure to state the amount of indebtedness would be applicable.

The burden was upon appellant to prove actual notice of the amount of his claim, if that was relied upon, at the time Battenhousen purchased. Without discussing the question attempted to be raised in argument by counsel for appellant, whether the evidence of Martha Battenhousen was admissible, we are clear no actual notice was proved, and that Battenhousen is shown to have been a purchaser in good faith, for value. And we are also of opinion that the record does not disclose sufficient evidence of subsequent actual knowledge at a time when he could have legally avoided making any of the back payments. There is evidence that there was not actual notice of appellant’s claim until the service of summons in this case, and the proof shows the notes for the deferred payments were assigned before maturity.

The judgment is affirmed.

Judgment affirmed.