184 Ill. 560 | Ill. | 1899
delivered the opinion of the court:
It was competent for the appellee to bring the action in his name as executor and in assumpsit, notwithstanding the assumption clauses sued on were incorporated in an instrument under seal and to which his testator was not a party. Webster v. Fleming, 178 Ill. 140.
The court properly construed the clauses in the deed conveying said block to the appellant to bind him to make payment of the amount assumed, together with interest at the rate mentioned in the notes which evidence the indebtedness, in whole or in part, so assumed to be paid. The undertaking to pay interest at the rate specified in the notes is not so directly expressed in the assumption clause attached to the conveyance of the east half of the block, but a liability is clearly set forth to pay a specified portion of an encumbrance created by trust deed for the security of certain notes, the tenor of the notes and the trust deed being fully stated. Such notes and trust deed then constituted a legally enforceable lien on the block, and the contract of assumption was properly construed to be an undertaking to make payment of the designated portions of the amount of said notes, together with interest thereon at the rate specified in the notes. Moreover, the recitals in the writing signed by the appellant January 9, 1895, are competent for consideration in arriving at a conclusion as to the meaning he intended should be given the clauses in the deed. In the absence of this writing that meaning is, we think, clear, but with the aid of it all grounds on which to even base a contrary contention disappear.
It was wholly immaterial to the validity of appellant’s contracts of assumption that the notes secured by the trust deed were not signed by the maker of the trust deed, but by another. (Daub v. Englebach, 109 Ill. 267.) The appellant agreed to pay the designated portions of the indebtedness evidenced by the notes as a part of the purchase price due from him for the block. The payment thereof would release the block so purchased from the encumbrance of the trust deed whether the notes secured by such trust deed were signed by the maker thereof or another. The amount specified as assumed to be paid in that clause included interest which had accrued. The rule to be observed in the calculation of interest would not permit the computation of interest on this accrued interest. In the absence of any ruling to the contrary in propositions of law, we assume the trial court entertained the correct view as to the legal rule govemingthe computation of interest. The correctness of the computation of interest by the court is therefore a question of fact. (Harding v. Kuessner, 172 Ill. 125.) Whether certain of the partial payments made by appellant exceeded the interest then due, and, to the amount of such excess, reduced the sum upon which interest should thereafter be computed, is a question of fact not open for review in this court. Harding v. Kuessner, supra.
Notwithstanding the recitation in the deed containing the assumption clauses, that the conveyance was made “in consideration of $35,000 in hand paid by the second party, (appellant,) the receipt whereof is acknowledged,” it was proper to permit the introduction of parol proof to show the amount so recited as having been paid “in hand” was in part paid by the obligation to pay the sums specified to be paid in the assumption clauses. The-rule that parol evidence is not admissible to vary or contradict the tenor of a written instrument applies only to the parties to the instrument: (17 Am. & Eng. Ency. of Law, 453.) Even a party to a deed may produce parol evidence to show the consideration was different from that expressed in the deed. (Booth v. Eynes, 54 Ill. 363; 17 Am. & Eng. Ency. of Law, 438.)
The fact an action on the notes could not have been maintained against Poucher; the maker of the notes, by reason of the operation of the Statute of Limitations as to him, presented no obstacle to a successful prosecution of an action against the appellant. It appeared from the evidence the appellant assumed the payment of the specified portions of the encumbrance on the property as a part of the purchase money he was to pay for the title to the property. He thereupon became personally liable to the holder of the notes as fully as if the agreement to pay such portion of the purchase money had been made directly to the holder of the notes for an adequate consideration. As to the holder of the notes the appellant became a principal debtor. (Thompson v. Dearborn, 107 Ill. 87; Ray v. Williams, 112 id. 91; 15 Am. & Eng. Ency. of Law, 838.) The appellant had a legal right to-pay the debt and remove the lien of the trust deed and discharge the obligation resting upon him by force of the agreement incorporated in the deed. Therefore the payments made by the appellant operated to prevent the running of the Statute of Limitations in his favor.
In the deed which-the appellant accepted, and by virtue whereof he held title to the block in question, the date of the execution of the trust deed is twice given. It was therefore unnecessary the court should have required any further proof as to the true date of such .trust deed. Nor, in view of the effect of the acceptance of the deed by the appellant, was it necessary that further proof should have been produced to explain the contradiction in the body of the deed and the acknowledgment thereof as to such dates.
As we have seen the fact the indebtedness secured by the trust deed was that of another than the party who executed the same in nowise affected the liability of the appellant under the assumption clauses, it was not error to refuse to permit the appellant to testify that mortgages and trust deeds were most usually given to secure the indebtedness of the maker of the instrument. The instrument in writing dated January 9, 1895, was prepared by the agent of the appellee’s testator, sent to appellant by mail, signed by the appellant and returned through the mails to the testator of the appellee, who held it and acted under it until his death; It constituted a written agreement between the parties for an extension of the time of payment of the indebtedness existing by virtue of the assumption clauses, as fully as if signed by both. (3 Am. & Eng. Ency. of Law, 858, and notes.) Hence the court correctly refused to receive parol evidence as to. the terms of the agreement evidenced by that writing.
The contentions that this instrument is void, as an agreement, for lack of mutuality; that it has reference only to past and not to future forbearance in the matter of the enforcement of the demand against the appellant; that at the time of its execution the law did not permit contracts for the payment of interest at the rate of eight per cent, and therefore the agreement was usurious in so far as it purported to bind the appellant to pay in the future at that rate, notwithstanding the rate was not usurious when the assumption agreements were entered into, are so manifestly groundless that further reference need not be made to them.
The judgment will be affirmed.
Judgment affirmed.
