36 Ill. 133 | Ill. | 1864
delivered the opinion of the Court:
This was a bill in chancery in the Superior Court of Chicago, to foreclose a mortgage, brought by the defendants in error against the plaintiffs in error, in which a decree passed against them on'the 7th of February, 1863, for the sum of fourteen thousand five hundred and seventy-four and ninety-three one-hundredths dollars, and costs, and a sale of the mortgaged premises ordered to satisfy the same unless the same should be paid within ten days. From this, decree the plaintiffs prosecute this writ of error, assigning as errors, that the Superior Court erred in rendering any decree for the complainants, and in not dismissing the bill; and that the. decree was for a sum greater than the amount due on the mortgage.
The facts of the case are, that plaintiff in error, ¡Nicholas P. Iglehart, was indebted to the Bank of Circleville, Ohio, at the time of its collapse, in the sum of nine thousand eight hundred and twelve and sixty-one one-hundredths dollars. Henry F. Page and William P. Darst were appointed receivers of the assets and effects of this bank, and on the 21st of September, 1863, plaintiffs in error executed to them a mortgage and bond on certain real estate in Chicago, and in Cook county. This mortgage recites this indebtedness — that they had compromised their claims against him, and agreed to release him in consideration that he would secure to them the prompt and punctual payment of one-half of said amount, viz: $4,906.30, in the manner and at the times thereinafter specified, and that he had executed his bond of the same date in the penalty of $10,000, conditioned for the payment unto them, their executors, administrators or assigns, of said $4,906.30, as follows: $500 cash, and the balance in five equal payments annually of $881.26 each, with interest at six per cent., payable 'annually upon the whole sum remaining unpaid, with the understanding that if default should be made in the payment of either of said instaEments, and if such default should continue for ninety days, then the whole of said $9,812.61, less what might be paid thereof, should forthwith become due and demandable; and with a proviso written under said bond, that if -said Page and Darst should not obtain the ratification of said compromise by the Court of Common Pleas of Pickaway county, Ohio, said bond should be void.
The first question presented is, inasmuch as the bond was to be of no validity unless the Court of Common Pleas of Pickaway county, Ohio, ratified the compromise, did that court ratify it ?
The decree does not so find, nor does the proof show such ratification. That proof shows the ratification of a contract different in its terms from the one made by the receivers, with Iglehart. By their agreement, after the payment of five hundred dollars in cash, the balance was to be secured by notes and mortgage having five years to run, and this is the mortgage in this suit, and by its terms it was to be null and void unless ratified by the court in Ohio. The court in Ohio did not ratify that agreement, but recite one different in its provisions, which they did ratify and confirm.
It was incumbent on the defendants in error to aver and prove a full compliance on their part, by showing that the ratification was obtained. The validity of the mortgage depended on this.
It may be, as claimed by the defendants in error, a clerical error has intervened in reciting the terms of the compromise. It may be so, but we have no authority for so saying. The record of the Court of Common Pleas must speak for itself, and is not open to explanation or correction by parol proof.
The terms of this compromise not having been ratified by the Court of Common Pleas of Pickaway county, Ohio, and as the validity of this mortgage depended on such ratification, it follows, the defendants in error were not in a position to institute these proceedings.
The plaintiff in error cannot be adjudged to be in default until the compromise, which is the basis of the mortgage, has been ratified. He has a right to insist on that, before he can be called upon to make the stipulated payments.
Another point is made by the plaintiff in error, which it is necessary to dispose of, as the case may be again tried, if a ratification is obtained. He contends that the complainants, the ¡defendants in error, not being the parties to whom the mortgage was given, nor the heirs or assignees of Page and Darst, are not entitled to bring suit on the mortgage in our courts.
In support of this proposition, the case of Booth v. Clark, 17 Howard (U. S.) 330, is cited. We do not think that case is like this in principle or in the facts. There, the receiver appointed by the court of Hew York, attempted to sue in the court of the District of Columbia, and the court held the receiver had no power out of the jurisdiction appointing him. In the case before us, the bond and mortgage were made to Darst and Page, and transferred to the complainants by the action of the proper court in Ohio. How, as Darst and Page could have sued on the bond and mortgage in our courts, and as all their interest in the thing has passed to complainants, but not by a regular assignment under the hands of Darst and Page, yet by the transfer to them, as the successors of Darst and Page, all the equitable right to the same has become vested in complainants, and they can enforce it in our courts. It is the mere question, will a court of equity protect the rights of an equitable assignee?
These complainants are the successors of Darst and Page, originally appointed receivers of this bank, and by the order appointing them, all the property and assets of the bank in their possession became vested in the complainants. Though at law they might not be enabled to sue in their own names, yet in equity the rule is different. Whilst the former would require the proceedings to be in the name of Darst and Page, for their use, to whom the bond and mortgage were made, by the latter, the equities of their assignees will be protected and enforced in a court of equity, by a suit in the name of such assignees. They are the only parties in interest since their appointment, and equity will afford them relief in this suit. Dixon, Assignee, v. Buell, Adm’r, 21 Ill. 203; Olds v. Cummings et al., 31 ib. 191; Townsend v. Carpenter, 11 Ohio Rep. 21. Galling them “receivers,” is mere description of the person.
The next point made by the plaintiff in error is, that the Bank of Circleville was not made a party.
We see no force in this objection. That was a defunct and insolvent corporation, so declared by the judgment of a court in Ohio of competent jurisdiction, and all their assets, rights, credits and effects passed into the possession and control of the complainants. The interest of the bank in this proceeding and suit has not been pointed out, and we are unable to discover it. The bank being insolvent, and all its property passed to the receivers, the prima facie intendment is, that they have no property or interest in jeopardy. The prior receivers may have some interest, and they have been made defendants. As in a case of bankruptcy, all that the bankrupt has, is a mere right to call upon the assignees for an account; but the presumption being that there is not enough for the creditors, he is not considered as having such an interest in the property as will entitle him to maintain a suit respecting it; so that, prima fade, the bankrupt has no demands. 1 Dan’l Ch. 71. There is no conceivable interest which the bank can have in this mortgage.
For the reasons given, the decree must be reversed, the defendants in error having no cause of action.
Decree reversed.
