65 Ill. App. 222 | Ill. App. Ct. | 1896
delivered the opinion oe the Court.
There was no proof the appellees or any of them requested the widow to make any payment either of principal or interest upon the debt or to arrange for extending the time of its maturity or that any of them were in any way consulted about or asked to consent to anything that she did about the matter.
It is clear some of them knew she was paying the interest on the indebtedness but she held possession of . the mortgaged lands as her homestead, enjoyed the rents and profits thereof as was her right to do, and the heirs seem to have given neither care nor thought to the indebtedness or to the mortgaged premises until the homestead right expired. The company treated her as the sole party in interest and dealt with her and the indebtedness upon that basis.
"We can not regard the appellees or any of them as bound by the transactions between the company and the widow, on the ground she was acting at their request, for such was not proven; nor can we regard any of them as estopped on the ground she acted with their knowledge and consent, for it was not proven they knew of and consented to either of the contracts for an extension of the time of payment. Nor had she authority because of the relation of all of the parties to the land to bind them by her contracts or her payments.
She had an estate of homestead in the land and they owned the fee. They were not joint debtors, for none of the appellees were personally bound as debtors, but all were more or less interested in the payment of the debt, because it was a lien upon the land.
This interest was no doubt such as to give either of the heirs or the widow the right to pay the debt and to charge the appellant company with the duty of accepting payment from either, but not such as to give the widow or any heir power to bind the others to a new contract extending the time of payment. Indeed the right of each of such parties to discharge the debt' is inconsistent with the right of another of them to enter into an independent contract legally binding upon all, postponing’the date of payment. Kallenback v. Dickinson, 100 Ill. 427, is an instructive case in this connection.
The contracts entered into by the widow and payments made by her no doubt operated to bind her interest in the land and to stay the running of the statute as to her, but had no such effect as to the interests of the appellees. They were bound only bi^ the contract as it existed with their father. Eight of action upon that contract was barred by the statute.
The decree is affirmed.
