154 Ill. 649 | Ill. | 1895
The evidence in this record conclusively shows that at the time the deed was executed to William R. Banner it was made to indemnify him as surety, and he was to take the title in trust, to also indemnify three other sureties of Peter O. Banner. The evidence also shows that at the time of the conveyance by William R. to the complainant in the original bill, Moffett, he was informed of that fact, and his declarations, proven to have been subsequently made, recognized this right of redemption. With these facts shown in the record there was no error in finding the deed of June.29, 1888, was given as security, and was in fact a mortgage. The deed of trust made in 1885' had never been foreclosed, and, the right of redemption existing under the deed of 1888, it was proper to have an account, and decree the relief prayed for in the cross-bill of Peter O. and Hester E. Hanner. With this right of redemption existing, it was not error to dismiss the original bill and the cross-bill of William R. Hanner, as full and complete relief could be decreed under the cross-bill under which the decree was entered.
No service of process was had on John Daugherty, nor was he named in the decree, and he can not be heard to assign error in a case in which he was not a party.
There was no accounting or relief prayed for in the original bill, as against William R. Hanner, that the error assigned.
The claim that the court erred in not rendering a decree in favor of Silas Moffett against William R. Hanner cannot be sustained.
The master having reported his conclusions to the court that the relief prayed for in the cross-bill by William R. Hanner should be granted, it is apparent the master’s report was disapproved, though not so stated in the decree. The master did not state the account, but it appears the same was stated and found by the court.
The sixth assignment of error is, that the court erred in not rendering a decree for the full amount due Silas Moffett. This assignment would require this court to enter into an examination of complex and intricate accounts, determine amounts of interest, etc. We have frequently stated the practice which should be adopted in courts of chancery with reference to such accounts. Where the rights of parties in a chancery proceeding are involved and an accounting is to be had, the court should first find and declare the rights of the parties and the rule to be adopted in stating the account, by an interlocutory decree, and then refer the cause to the master to take and state the account. Stating the account is the appropriate work of the master, and the usual and proper practice in chancery. When such statement is made concisely, exceptions thereto may bring to the trial court and to an appellate tribunal the issue between the parties, so that the same may be comprehended and determined. The exceptions are the pleadings to the items of an account,’and must be specific, and not general, as they can then be reviewed by the Appellate Court or Supreme Court. Mosier v. Norton et al. 83 Ill. 519; Quayle et al. v. Guild, id. 553; Moss v. McCall, 75 id. 190; Patten v. Patten, id. 446; Steere v. Hoagland, 39 id. 264; Bressler v. McCune, 56 id. 475; Riner v. Touslee, 62 id. 266; Groch v. Stenger, 65 id. 481; Dubourg v. United States, 7 Pet. 625.
For error of the court in not referring the cause to the master to take and state the account, the decree must to that extent be reversed. That part of the decree dismissing the original bill and the cross-bill of William R. Banner, and finding the deed of June 29, 1888, a mortgage, will be affirmed. Plaintiffs in error are to be taxed one-lialf the costs of this court and Peter O. and Hester E. Hanner the residue, and the cause is remanded with directions to the circuit court to refer the cause to the master to take and state the account between Moffett and Peter 0. Banner.
Affirmed in part and in part reversed, and remanded.
