22 Ill. App. 616 | Ill. App. Ct. | 1887
This was a bill in chancery brought February 25, 1884, by Frances Hyers against Mary L. and Rudolph Lambert to foreclose a deed of trust made July 13, 1883, by said Lamberts, conveying land described therein to Madison Beal as security for the payment by said Lamberts of their promissory note for §3,500, payable to the plaintiff on or before five years from said last mentioned date, with interest at the rate of six per cent., payable semi-annually. The trust deed provided for the whole indebtedness becoming due upon the failure to pay any part of the interest and contained the powers in the trustee usually expressed in such deeds.
There was also this provision: “In case of the death, resignation, removal from said Cook County or other inability to act of said grantee, then George C. Christian of Cook County is hereby appointed and made successor in trust herein, with the like power and authority as is hereby vested in said grantee.” •
Beal, the grantee, was named as a party defendant in the bill and summons, but there was a direction of the plaintiff’s solicitor upon the summons not to serve him and he was not served. There was no allegation in the bill that Beal had died, resigned, removed from the county, or become unable to act as such trustee. George C. Christian was made a party defendant to the bill as originally filed, but there was nothing on the face of the bill to show that he was a necessary or even a proper party, and there was no amendment of that bill or any supplementary bill filed.
The Lamberts filed answers setting up payment of the entire indebtedness as a defense. Issue was taken on that defense, and the case heard by the chancellor upon oral testimony, who found against it and entered a decree finding the amount due and directing a foreclosure of the mortgage. Upon that decree the Lamberts bring error to this court.
We have read the evidence upon the question of payment and find it closely conflicting, but there was no such preponderance in favor of the defendants below as would justify us in reversing the finding of the chancellor who had the witnesses before him and therefore a better opportunity" of judging of their credibility than we can have. Besides there are circumstances testified to by the Lamberts themselves which strongly tend to lead the impartial judicial mind to the conclusion that their story, about having paid and taken up the said note and then afterward losing it by reason of its destruction by a- child, was a pure invention having no basis in truth, especially in view of the undoubted fact that the complainant had had said note all the time in her possession or under her immediate control, and produced, proved and fully established its identity on the hearing.
There is, however, such an error in the proceedings that we must reverse the decree for the purpose of correcting that error.
In a suit in chancery to foreclose a trust deed in the nature of a mortgage, the grantee in such deed, in whom the legal title is vested, is an indispensable party. Walsh v. Truesdell, 1 Ill. App. 126, and authorities there cited.
Beal was such grantee. As above stated he was named as party defendant in the bill, but was not served, and LTovember 18, 1884, on motion of the plaintiff’s solicitor, the bill was dismissed as to him without any reason being assigned. It is true that in the final decree it is recited that the bill had been theretofore dismissed as to said Beal because of-his death. But the certificate of evidence purports to contain all the evidence in the case and that shows none as respects Beal’s death.
If it be true that he has died, that fact must be brought into the bill by proper allegation, either by the way of amendment or supplement according to the time of its occurrence with relation to that of commencing the suit, and it should be supported by evidence, and then it should be further alleged and proved that George 0. Christian had accepted the trust as successor to said Beal. If the latter has not departed this life he should be served with summons.
For the reason stated the decree below must be reversed and the cause remanded for the purpose of correcting and with directions to correct the error pointed out.
Deoree reversed.
Moban, J., took no part in the decision of this case.
