139 Ill. App. 507 | Ill. App. Ct. | 1908
delivered the opinion of the court.
The first, second, third and fifth assignments of error are in substance and effect that the court erred in entering a deficiency decree. The court found that the Rockeys had agreed to pay and discharge the $100 note and trust deed when the real estate was sold to the Hartings, and not having paid it the Hartings Avere entitled to have set-off against the note and trust deed they had given to Franklin L. Hockey that had been assigned to Robert H. Adam, the amount they had paid or Avould be compelled to pay to Annie J. Prior, the holder of the $100 note and trust deed executed by Rockey. This Avas not a deficiency decree. A judgment must be for a specified sum and hence a deficiency decree can only be rendered after a sale of mortgaged property. Cotes v. Bennett, 183 Ill., 82; Bouton v. Cameron, 205 Ill., 50. This not being a deficiency decree such assignments of error are not well taken.
The fourth error assigned is that the court erred in said equity proceedings in determining the liability of plaintiffs in error on said covenant to pay said $100 lien, and that the court should have referred the parties to their remedy at Hav ; the sixth is that the court erred in entering a decree against plaintiffs in error or either of them.
The bill alleges “that from the records, etc., it appears that said John Harting obtained title to the said real estate by deed of Avarranty from Franklin L. Rockey and Hester L. Rockey his Avife * "1:" * that the same appears to contain the following stipulation, covenant or agreement; ‘subject to an encumbrance by Avay of trust deed on Avhich there noAV remains unpaid the sum of $100 and interest, and AA7hich as a part of the consideration above named the said grantors covenant and agree to pay when due and cause the same to be cancelled and discharged.’ ” The decree finds that said Avarranty deed from said Franklin L. Rockey and Hester L. Rockey contained this covenant or agreement and that by reason of said agreement or covenant in said deed Franklin L. Rockey and Hester L. Rockey jointly and severally agreed and promised, etc., and became obligated to pay and discharge said encumbrance of $100 existing by reason of said trust deed to Ambrose F. O’Connor and the note accompanying the same, and that said Franklin L. Rockey and Hester L. Rockey should be required to perform their covenant and pay the full amount due on said encumbrance. The Rockeys were defaulted and a decree pro confesso taken against them. The Rockeys were proper bnt not necessary parties to said bill; they had disposed of their equity in the property and had no interest in it. Had there been a demurrer to the bill on the ground of multifariousness that part' of the bill asking for relief against them might possibly have been held bad on that ground. That' question, however, cannot be raised on appeal or error against a decree pro confesso. Gilmore v. Sapp, 100 Ill., 297; Chicago Theological Seminary v. Gage, 103 Ill., 175. Franklin L. Rockey, who was the owner of the property sold, having agreed to remove the encumbrance, had no reason to complain of a decree the findings of which correspond with the allegations of the bill and does equity. Hester L. Rockey, the wife, having signed the deed, the question arises can she be held to perform the covenant contained in the deed ? The bill recites that Franklin L. Rockey was the owner of the property conveyed to Harting and that the note for $700 was signed by Franklin L. Rockey and not by his wife, Hester L. Rockey. The decree recites that the court found that they both covenanted to pay the $700 note from the covenant in the deed alone. There is no finding that she received any of the consideration or that she intended to go security on her husband’s debt or to bind her separate estate. A wife who joins in a deed merely for the purpose of releasing her dower is not liable upon the covenants contained in the deed. Sanford v. Kane, 133 Ill., 199; Center v. Elgin City Banking Co., 185 Ill., 534; Williams v. Hugunin, 69 Ill., 214; Granath v. Johnson, 90 Ill. App., 308, and cases therein cited; Western Springs v. Collins, 98 Fed. R., 933; 5 Encyc. of Pl. & Pr., 361. There is nothing in the deed, which from the recital of the decree is the only evidence on which the court held Hester L. Hockey liable, that shows that she joined her husband in the deed for any purpose other than to release her dower, and the decree cannot be sustained against her.
So much of the decree as renders a judgment against Hester L. Rockey is reversed, in all other respects the decree is affirmed.
Affirmed in part and reversed in part.
Mr. Justice Dibell took no part in the decision of this case.