85 Ill. 177 | Ill. | 1877
delivered the opinion of the Court:
This case rests upon no good or equitable foundation. The question of amendments in chancery proceedings, is one very much in the discretion of the court, if there be no peremptory rule of practice limiting that discretion, whether such rule be prescribed by statute, or is founded in the general usage and practice of courts of equity. We believe it to be a rule in chancery, when a demurrer going to the merits of the whole bill is sustained for want of equity, it is not the practice to allow amendments so as to make a new case with new parties. Verplanck v. Merchants’ Ins. Co. 1 Edw. Ch. 46; Pratt v. Bacon, 10 Pick. 123; Puterbaugh v. Elliott et al. 22 Ill. 157.
We fail to perceive any reason for reversing this decree. The note in question was executed on February 20, 1856, and suit commenced to foreclose the mortgage given to secure the payment of the same, July 17, 1872, some months after the time limited for bringing an action upon the note. As the note is the principal debt, that falling, the mortgage also falls.
But the note, on other grounds, could not be collected, for the reason, the makers of it had been discharged from its payment,—"William J. Mayers, by the payment of one hundred and fifty dollars in discharge thereof, and John Mayers and Linus Graves, the other payors, by proceedings in bankruptcy. John Mayers was the maker of the note, and William J. Mayers and Linus Graves were the sureties, and though, as sureties, they could claim to be subrogated to all the rights of the payee on their paying the debt, yet, as they never have paid it, and are not bound to pay it, they can have no standing in a court of equity.
The lien created by this mortgage having expired by the death of the note, equity affords no means of reviving and enforcing it.
The decree of the circuit court is right, and must be affirmed.
Decree affirmed.
