168 Ill. App. 525 | Ill. App. Ct. | 1912
delivered the opinion of the court.
This decree must be reversed for the following reasons: There are no allegations in the bill which can support any decree against John Kause; there are no allegations that he had any beneficial interest in the fund procured by the loan from Curley, or that he ever authorized any advances to be made for him, or assumed or promised to pay any of the indebtedness secured by the deed of trust. There are neither any allegations that Kause assumed any obligation, nor tha,t anything was done which could impose any obligation upon him.
“It is a fundamental rule of equity pleading that the allegations of a bill, the proof and the decree must correspond, and that the decree cannot give relief that facts disclosed by the evidence would warrant, where there are no averments- in the bill to which the evidence can apply.” Dorn v. Gueder, 171 Ill. 362 (369), and cases there cited.
The rule is the same in a decree pro confesso. “A decree pro confesso concludes the defendant only as to matters alleged in the bill.” Curlett v. Curlett, 106 Ill. App. 81; Armstrong v. Building Ass’n, 176 Ill. 298.
It should also be noted that Kause claims in argument that the premises were encumbered originally by his trustee, Ella B. Ford, without his authority or knowledge and in violation of the trust, to secure her individual debt and the debt of a stranger. A search of the entire evidence discloses nothing which tends to negative these claims.
It is not necessary to dispose of this cause for us to pass upon other assignments • of error, however valid such assignments of error may be. One point is sufficient to dispose of the entire matter. It appears from the bill and the evidence that Ella B. Ford, one of the makers of the note, paid the same in full, thus extinguishing the debt — certainly so far as Kause was concerned, — and the lien of the trust deed upon the premises in question. “.When the debt is extinguished by one, it discharges all, whether the parties intended it or not.” Gillett v. Sweat, 6 Ill. (1 Gil.) 475.
We have considered those cases which hold that the intention of the parties sometimes determines whether or not the debt is extinguished upon payment of the note evidencing indebtedness. These are cases where there was some agreement or understanding between the maker, endorser or payee of a note as to the effect of payment, and it is there held that the intention of the parties controls.
In the case before us there is no evidence of any understanding of the parties other than that the note was paid by Ella E. Ford. The allegations in the bill and the finding of the master that she did this “to protect her interests in said lots 25 and 26” disclose nothing which could alter the legal effect of such payment. “Before the payment every presumption is in favor of the holder; after payment the natural presumption is otherwise. * * * The burden of proof must consequently be on the party who asserts an unusual transaction to introduce evidence sufficient to prove it.” Hopkins v. Farwell, 32 N. H. 425.
Even if there were any evidence as to any understanding between Ella E. Ford, the maker of the note, and Curley, the holder thereof, such understanding could not affect Kause, a stranger to the transaction, and could not avoid the legal effect thereof as to him.
In Moore v. Hamilton, 48 Barbour (N.Y.) 120, where the mortgage debt was assigned to the debtor who assigned to another, the court said: “The legal effect of an assignment of the debt to the debtor himself for a valuable consideration would be to extinguish the obligation. If there is any equitable ground upon which the lien of a mortgage in such a case can be preserved for the benefit of the assignee of the mortgagor, it does not appear in this case. ’ ’
The rule so stated must control here. No equitable grounds appear upon which the lien of said trust.deed on the lots in question was preserved after the payment to Curley, the owner and holder of the note, by Ella Ford, the debtor, of the full amount of the note.
The order of this court therefore is that the decree is reversed and the cause remanded with instructions to dismiss the bill for want of equity.
Reversed and remanded.
