| Ill. | Jan 15, 1866
delivered the opinion of the Court:
On the 6th of September, 1857, Corydon Weed sold to Charles Packwood a tract of land for which the latter gave one note for $172.80, due in ten days, and eight notes for $360 each, of which one was to fall due annually during the next eight years. At the time of this sale the land was subject to a mortgage in favor of one Fell. At the March Term, 1857, of the Circuit Court, Fell filed his bill to foreclose said mortgage, making Weed and Packwood parties, and obtained a decree, by virtue of which the lands, on the 11th of May, 1859, were sold by the master. On the 11th of May, 1860, Packwood redeemed the land, paying $1,176.97, and the certificate of redemption was duly filed and recorded. Corydon Weed on the 4th of September, 1858, conveyed the land to Peter Weed. On the 4th of October, 1861, Corydon Weed indorsed the unpaid notes to Asahel Gridley in part payment of a debt due him from Corydon and Peter Weed; and at the same time, to secure said notes, Peter Weed conveyed the land to Gridley, with a clause in the deed that it was made subject to the Packwood bond, “ said Gridley agreeing to comply with the terms of said bond.” At the March Term, 1865, of the Circuit Court, Gridley obtained judgment by default against Packwood on the two notes falling due in six and seven years from date, whereupon Packwood filed his bill to enjoin the collection of the judgment, and also the collection or assignment of the note not then due, and praying for a conveyance. On the hearing, the bill was dismissed and the complainant appealed.
So far as concerns the judgment, this decree was unquestionably right. The complainant had had full opportunity to make his defense, and the proof shows no excuse whatever for his failure to do so. It is urged, however, by his counsel, that the objection that there is a complete remedy at law, must be made to a bill in chancery by demurrer, or insisted upon in the answer, in order to be available; and various authorities are quoted to that effect. But the objection in this case is something more. It is, that, having had an opportunity to insist upon his rights in a court of law, and in a suit directly involving them, and having failed to do so, he is barred by his own ladies from asking the question to be re-opened on the chancery side of the court. Whatever defensé the appellant has against these two notes could have been as well made in the suit at law as in equity. He is now too late, This point has been so often ruled by this court as not now to need further consideration. Elston v. Blanchard, 2 Scam. 420; Abrams v. Camp, 3 id. 290; Scott v. Whitlow, 20 Ill. 310" date_filed="1858-04-15" court="Ill." case_name="Scott v. Whitlow">20 Ill. 310; Ballance v. Loomis, 22 id. 84.
As to the unpaid note, being the last of the series, we are of opinion that if the bill had offered to bring into court the amount due upon the judgment, and if, furthermore, Corydon Weed had been made a party, the complainant would have been entitled to a surrender and cancellation of that note, and to a deed for the premises, after paying the judgment. When Gridley bought these notes he had actual notice of what was their consideration. This is clear from the fact disclosed in the evidence, that he insisted on and received a conveyance of the land to himself, as security, but with a provision that he was to comply with the terms of Weed’s contract with Packwood. Besides this actual notice as to the character of the notes, he had constructive notice of the fact that Packwood had redeemed the land from the sale under the mortgage—that is, had paid $1,176.97 for the use of Weed, and which Weed ought to have paid under the covenants in his bond. Packwood had the right to pay this money to preserve his land. He waited until the last day for redemption, probably with the hope that Weed would redeem, and then, finding the title of his land about to become absolute in another, he advances the money. There can be no doubt that this money, as between Weed and Paclcwood, should be applied as a payment on the notes. When Gridley bought them he did so with the constructive knowledge that this money had been advanced by Packwood in such a mode as to entitle him to apply it as a payment. The sale of the notes and the deed of the land to him were all one transaction, and he must be held to notice in regard to the notes of whatever the records brought to his knowledge in regard to the title of the land. He therefore bought subject to whatever rights of set-off growing out of the redemption existed as against Weed.
The only error committed by the court below, as the pleadings now stand, was in not dismissing the bill without prejudice. We therefore reverse the decree and remand the case, with leave to the complainant to amend his bill by making Corydon Weed a party defendant, and by offering to bring into court, on being so directed, the amount due Gridley on the judgment.
The costs of this court will be taxed against the appellee, but all the costs of the court below, up to this time, will be taxed against the appellant.
Decree reversed.