62 Ill. 361 | Ill. | 1872
delivered the opinion of the Court:
This was a contest between a mortgagee of personal property and an assumed purchaser.
We shall not comment upon the testimony, as the judgment must be reversed for errors of law. The alleged fraud, in the execution of the mortgage, is purely a question for the jury, from all the evidence. As the case was not fairly and properly presented to the jury, there should be a new trial before any opinion is expressed as to the weight or effect of the evidence by this court.
The mortgagor was introduced as a witness for appellant, and testified only, that the cattle in controversy were the same cattle mentioned in the mortgage.
This was for the purpose of identification of the mortgaged property, and did not present any other question. The property described was,■ “ twenty two-year old steers on the same farm; ” and the parol proof was necessary to show that the property in controversy and the property mentioned in the mortgage were the same. The record of the mortgage was notice to all subsequent purchasers that the mortgagee had some claim of right to cattle upon the farm; and parol proof was admissible to identify the particular cattle. Mattingly v. Darwin, 23 Ill. 618; Hartford Fire Ins. Co. v. Hadden, 28 Ill. 260.
As the mortgagor testified to no fact, except the foregoing, it was manifestly improper, against repeated objections, that the court should have permitted a lengthy examination of the witness by the opposite party in regard to 'matters not adverted to in the examination in chief, and wholly disconnected therewith. The examination was extended to the consideration for the mortgage; the state of accounts between the mortgagor .and appellee, and admissions which the mortgagor had made subsequent to the execution of the mortgage.
Though there are authorities to the contrary, the rule established in this State is, that when one party introduces a witness and examines him, the cross-examination is limited to the facts elicited by the examination in chief. If his testimony is desired as to other and distinct matters, the opposite party must call him, and make him his own witness. Stafford v. Fargo, 35 Ill. 481.
While we might not reverse for this only, we must when the examination was carried to the extent it was in this case.
By the violation of this rule, evidence ivas obtained which was inadmissible, and which probably influenced the verdict.
The testimony as to the fact of the purchase of the cattle, was equally balanced. The mortgagor denied, upon this improper examination, the sale; the purchaser affirmed it. The court then permitted other witnesses to contradict the mortgagor as to admissions he had made after the execution of the mortgage, and thus the scale Avas turned, and the rights of the mortgagee imperiled.
The mortgagor Avas not a party to the record, and his admissions could not be proved to affect Avhatever rights the mortgagee had acquired. Reed v. Nixon, 48 Ill. 323; Gridley v. Bingham, 51 Ill. 153.
The mortgagor had made a conditional sale. He had virtually parted Avith his interest in the property, and it Avould open the door to the basest frauds to alloAV his declarations to defeat the claim of the mortgagee. Miner v. Phillips, 42 Ill. 123.
The mere fact that the indebtedness mentioned in the mortgage Avas greater than the actual indebtedness, is not conclusive evidence of fraud. The fraud must be determined by the jury from all the circumstances; the intent and agreement of the parties, if any existed, as to the purpose of the mortgage. If the design Avas to shield the property, and to hinder and delay creditors by the insertion of the large amount in the mortgage, then it was fraudulent and void. The transaction must be real, and entered into in good faith, to secure against present or future liability. Wooley v. Fry, 30 Ill. 158.
We perceive no error in the instructions to which objection is made; but the judgment must be reversed for the reasons assigned, and the cause remanded for another trial.
Judgment reversed.
