132 Ill. App. 162 | Ill. App. Ct. | 1907
delivered the opinion of the court.
The only brief or argument filed on this appeal for an appellee is that for Isabella Curran. The counsel for Isabella Curran state in their argument that they appear for her alone. If the bill as amended May 24, 1906, is a bill entitling the complainants, on sufficient proof, to relief as to the defendant Richard Curran it should not have been dismissed, even though it may not disclose any case for equitable interposition as against Isabella Curran. It will be only necessary to decide whether the demurrer to the bill, as amended May 24, 1906, should have been sustained and the bill dismissed, and whether permission should have been refused to file the amendments presented to the court June 16, 1906. It appears from the bill as amended, that Richard Curran in his answer to the original bill admitted that the deed was in blank when Isabella signed it, and was subsequently filled in, as a warranty deed from Isabella Curran and Richard Curran to the complainant Prindiville, and that she did not acknowledge it, and it also' appears from the amended bill that Richard Curran, knowing that Isabella merely signed a blank form for a deed, and did not acknowledge the deed at any time, delivered the apparent deed to the complainant Prindiville, and falsely represented to him that it was made, executed and acknowledged by his wife, Isabella Curran, and that, by means of such delivery and false representation, he procured satisfaction of the judgment in Bishop v. Curran to be entered on the record. It further appears from the supplemental bill that after the filing of the original bill and the discovery of the mistake in the description of the premises in the apparent deed, Prindiville and the McArdles paid to Bishop, by his request, his judgment in the attachment suit against Richard Curran, and Bishop conveyed to complainant Prindiville, in consideration of such payment, his judgment against Curran and his interest in the lots in question. A supplemental bill is proper when facts have occurred since the filing of the original bill which it is necessary to bring to the attention of the court, and, in such case, the supplemental bill is, in effect, an amendment of the original bill. Mix v. Beach, 46 Ill. 311, 314; Story on Eq. Pl., 9th ed., p. 295, sec. 332. Therefore, the new matter thus introduced is to be treated as an amendment of the original bill. The delivery of the apparent deed by Curran to Prindiville, for the purpose of procuring satisfaction of Bishop’s judgment, he well knowing that, it was not the deed of his wife and was not acknowledged by her, as it purported to be, was, of itself, a false representation and a gross fraud, and if Curran filled in the blank signed by Isabella Curran, or caused it to be filled in by another, proof of which is admissible under the averments of the amended bill, he was not only guilty of fraud, but of deliberate forgery. Wilson v. S. Park Commissioners, 70 Ill. 46; Langdon v. The People, 133 ib: 382; Hurd’s Rev. Stats. 1905, p. 693, parag. 105.
It is contended that the complainants have a remedy .at law, by applying to the court in which the judgment in Bishop v. Curran was rendered, to set' aside the entry of satisfaction of that judgment. Conceding that the law court has power to set aside the entry of satisfaction on a proper showing, the complainants, before filing the original bill, were in no position to make such showing. Before that time all they knew was that, in the apparent warranty deed, there had been a mistake made in the description of the premises which it was intended to convey, in writing, ‘ ‘ range 14” instead of range 15. They had no knowledge that the apparent deed was not the deed of Isabella Curran until the defendants were compelled, by order of the court, to answer specifically and under oath, the several allegations of the original bill, and the interrogatories propounded to them by the complainants. If complainants had applied to the law court to cancel the entry of satisfaction of the judgment, on the ground of the mistake in the apparent deed, that court would probably have informed them that their remedy was in a court of equity for reformation of the deed, which court, having entertained the bill for that purpose, would retain it for cancellation of the entry of satisfaction and all other legitimate purposes. Manifestly, the complainants could not have procured from' the defendants the information which they disclosed in this cause, reluctantly and under pressure, that the apparent deed was not, in law, a genuine deed.
The McArdles were the attorneys of Bishop, and as such were liable to him for negligence in matters entrusted to them by him, and, as we think, were, liable for permitting the acceptance of a deed in which the premises intended to be conveyed were misdescribed. Prindiville, in accepting the deed, was acting as trustee for Bishop, and it was his duty as such to see that the premises intended to be conveyed were conveyed by proper description in the apparent deed, before causing satisfaction of the judgment to be entered on the record. Prindiville and the McArdles, believing themselves liable to Bishop for the mistake in the deed, and the entry of satisfaction of the judgment, paid Bishop, on his demand, the amount of said judgment, and, at the same time, Bishop assigned to Prindiville the judgment and his interest in the lots intended to be conveyed to Prindiville. Had they not paid Bishop on his demand they were certainly liable to be sued by him.
Prindiville and the McArdles claim that they are entitled to be subrogated to whatever rights Bishop had in respect to his judgment against Curran and the enforcement thereof, and, assuming the truth of the averments of the amended and supplemental bills, we think they are so entitled. They paid to Bishop in full the amount of his judgment, and took from him an assignment thereof, to Prindiville, as trustee for himself and the McArdles, and whatever interest he had in the lots, which interest, if the lots belonged to Bichard Curran, was at least a lien by virtue of the judgment and the execution issued in pursuance thereof. The evident intention was, that they, thereafter, should stand in .Bishop’s place in respect to the judgment and all means of enforcing payment of it.
In Home Savings Bank v. Bierstadt, 168 Ill. 618, the court say: “Subrogation, as a principle of equity jurisprudence is generally confined to the relation of principal and surety and guarantors, or to a case where a person is compelled to remove a superior title to that held by him in order to protect his own, and also to cases of insurers. The general principle of subrogation is confined and limited to these classes of cases. (Bishop v. O’Conner, 69 Ill. 431; Borders v. Hodges, 154 id. 498.) Whilst these general heads include the doctrine and principles of subrogation, that doctrine has been steadily extending and growing in importance and extent in its application to various subjects and classes of persons. This equitable principle is enforced solely for the accomplishment of substantial justice, where one has an equity to invoke which cannot injure an innocent person. The right of subrogation which springs from the mere fact of the payment of a debt, and which is included under the heads first above stated, is what is termed legal subrogation, and exists only where included within those classes. But in addition to this principle of legal subrogation there exists another principle, which is termed conventional subrogation, which results from an equitable right springing from an express agreement with the debtor, by which one advances money to pay a claim for the security of which there exists a lien, by which agreement he is to have an equal lien to that paid off, whereupon he is entitled to the benefit of the security which he has satisfied with the expectation of receiving an equal lien.”
■In Tradesman’s Bldg. etc. Ass’n. v. Thompson, 32 N. J. Eq., 133, cited with approval in the Savings Bank case, supra, the gist of the opinion is thus stated in the syllabus: “When a payment is made by a stranger to a debtor, in'the expectation of being’ substituted in the place of the creditor, he is entitled to subrogation.” We think it clear from the pleadings that not only did Prindiville. and the McArdles expect to be substituted in the place of Bishop, but that this was the intention and understanding of both them and Bishop. See, also, Hough v. Aetna Ins. Co., 57 Ill. 318.
In Sheldon on Subrogation, p. 282, Sec. 245, the author says: “A payment made by one who was liable to be compelled to make it will not be regarded as made by a stranger, and will not extinguish the indebtedness of the party on whom rests the ultimate liability.”
It must be borne in mind that when the money was paid to Bishop and he assigned his judgment, etc., as heretofore stated, neither he, nor Prindiville and the McArdles, had any reason to believe otherwise than that the apparent deed was a valid deed, except for the mistake in the description of the property. It is contended by counsel for Isabella Curran that Bishop was an unnecessary party to the bill as amended, and that the demurrer was properly sustained on that ground. We cannot concur in this view. Bishop was made a party complainant February 14, 1906, the same day the supplemental bill was filed setting up the assignment by him to Prindiville of his judgment against Bichard Curran. Notwithstanding that assignment, the legal title to the judgment was in Bishop, and therefore he was not only a proper but a necessary party. Story on Eq. Pl., 9th ed., p. 150, sec. 153; Dubs v. Egli, 167 Ill. 514, 521.
We are of opinion that it was error to sustain the demurrer to the amended bill. We are also of opinion that the proposed amendments should have been allowed. They were presented in apt time, and, if allowed, would not have unreasonably delayed the defendants.
The decree will be reversed and the cause remanded, with directions to set aside the- order sustaining the demurrer to the amended bill and dismissing the bill, and to overrule the demurrer to the amended bill and permit the complainants to make the amendments which the count, by its order of July 19, 1906, refused to permit, and for further proceedings not inconsistent with this opinion.
Reversed and remanded, with directions.
