41 Ill. 183 | Ill. | 1866
delivered the opinion of the Court:
On the 21st of June, 1837, John B. F. Russell and Cornelia, his wife, the present plaintiff in error, executed a mortgage to Elijah K. Hubbard, to secure the payment of various notes and drafts upon some of which Russell was primarily, and upon others secondarily, responsible. The notes and drafts were six in number, and amounted in all to over five thousand dollars. At the November Term, 1845, of the Circuit Court of Cook county, the executors of Hubbard sued out a scire facias on this mortgage, and obtained a judgment for eighteen hundred and thirty-four dollars and eighty-one cents. From an affidavit filed for the purpose of making certain persons parties to the writ of error as terre tenants, it appears that the mortgaged premises were sold under the judgment. This writ of error to reverse the judgment is now prosecuted in the name of Cornelia Russell, one of the parties to the judgment and the mortgage. It is more than twenty years since the judgment was rendered, during which time the property has probably changed hands many times, and, as stated in the argument of counsel on each side, risen immensely in value. It is now sought, by means of this writ of error, to recover oack property, with the disposition of which, in payment of a debt, the parties have rested content for twenty years. This belongs, therefore, to a class of cases which are not entitled to, and do not receive, any indulgence at the hands of a court, beyond what is required by the strict rules of law. If these have been violated to the injury of the plaintiff in error, she must, of course, receive redress.
The first error assigned was that the court acquired no jurisdiction of the persons of the defendants. The writ has the following indorsement:
“We hereby acknowledge the service of this writ and pray the court to enter our appearance accordingly.
“ (Signed) J. B. F. RUSSELL,
0. RUSSELL.”
The judgment recites that it appeared to the court that the defendants had been duly served with process. This brings the case fully within that of Banks v. Banks, 31 Ill. 164.
It is next urged that this mortgage was of such a character that it could not be foreclosed by a scire facias, and reference is made to the case of McCumber v. Gilman, 13 Ill. 542. In that case the mortgage was given to secure the delivery of a certain amount of internal improvement scrip. The court held, that a scire facias would not lie to foreclose a mortgage given to secure the delivery of specific articles of property, or the performance of any act, except the payment of money. Such, indeed, is the language of the statute. But the mortgage in the case before us was given to secure the payment of money. On some of the instruments secured by the mortgage the liability had already accrued, and a debt was owing from the mortgagor to the mortgagee. On others his liability was secondary, and would only accrue in the event of non-payment by other parties and notice. But as to all the instruments, the mortgage was given merely to secure the payment of money, and was, therefore, within the terms of the act.
Whether the liability had accrued on all, was a matter which the court necessarily investigated at the time of rendering judgment, in the same way that it determines, when it renders a judgment upon a mortgage given to secure the payment of a note from the mortgagor to the mortgagee, wdiether the note has been paid. As to two of the drafts, the mortgage recites a protest, and admits the then existing liability of the mortgagor to the mortgagee. There was also a note made by the mortgagor, and indorsed by the payees to the mortgagee. There could be no question as to the power of the court to render judgment on a scire facias for the amount admitted by the mortgage to be due on the three instruments, and together they amounted to more than the judgment. We must presume, in the absence of a bill of exceptions, that the judgment was rendered for the amount which the court found due on these instruments, rather than on those where the liability of the mortgagor was only secondary. And that a judgment could be rendered on a scire facias for the amount thus due is undeniable.
It is also urged that the court erred in referring the assessment of damages to the clerk. But the damages rested in computation, and it was proper for the court to direct the clerk to compute them. The court would instruct the clerk at what rate to compute them, both as to the interest and the legal damages for protest.
It is also assigned for error, that a joint judgment was rendered in personam against both Russell and his wife, whereas the debt was the debt of the husband only. The commencement of the judgment is in form-m personam, it is true, hut it proceeds to award a special execution against the mortgaged premises, describing them as described in the mortgage,- and if there was an error in the form, it was one which could work this plaintiff in error no prejudice. She could not be made personally liable upon it, because the record would show that the proceeding was of a character in which a personal judgment could not be rendered, and the order of the court, taken as a whole, would be construed simply as fixing-the amount due on the mortgage, and directing the sale of the mortgaged premises. It directs that the plaintiffs have and recover a certain sum from the defendants, and then directs how they are to recover it — to wit, by the sale of the premises. Ho court, inspecting the entire record and the entire judgment, would hold it to be any thing more than a judgment in rem, and to this judgment the wife was a proper party as decided in Gilbert v. Maggord, 1 Scam. 471.
Another error assigned is, that the description in the judgment, of the mortgaged premises is void for uncertainty. The premises against which execution is awarded are describedoin the judgment as follows:
“All that certain lot or parcel of land situated in the county of Cook, and State of Illinois, and being part of the north-east quarter of section number thirty-four, township thirty-nine (39), range fourteen (14) east, being the same premises that were conveyed to said Russell by the said Hubbard, by deed bearing date about the twenty-eighth day of July, A. D. 1831, saving and excepting out of the same such lots as may appear to have been conveyed by said Russell on the record book of deeds previous to the twenty-first day of June, A. D. 1837.”
This description follows precisely the description in the mortgage, as set out in the scire facias, except that the mortgage refers to the deed from Hubbard to Russell, as bearing date the 28th of July, 1836, while the judgment refers to it as bearing date the 28tli of July, 1831. This is evidently a mere clerical error,, and one -which, as has many times been decided by this court, may be corrected on motion and notice at a subsequent term, by the files in the cause. In this case it could be corrected by the scire facias. An appellate court will not reverse a judgment merely for a clerical error which it sees by the record can be amended, and from which no injury can arise to the plaintiff in error. It is judicial errors of which an appellate court takes cognizance. Clerical errors0 are left for correction to the court where the error occurs.
Treating this discrepancy of dates as a mere clerical error, is this judgment to be reversed, as urged by the plaintiff in error, because of the alleged uncertainty in the description of the premises against which execution is awarded ? We do not perceive how it can be so held. The court gave judgment for the sale of the mortgaged premises as it found them described in the mortgage. It could do no otherwise. It had no power to change the description in a proceeding of this character. On a scire facias, the mortgage is treated as- a record, and the court must follow it. If the foreclosure had been by bill in chancery, the court would, on proper application and proof, have substituted a more definite description. But, in the case before us, it had no such power. How, then, can we reverse a judgment simply because the court did precisely what the law required it to do ? Whether the description of the mortgaged premises is available will depend upon whether persons claiming under the judgment and execution can make the proof necessary to identify them. This question will arise when they are called upon to defend their title, and its decision will depend upon the evidence that may then be presented. Whether the calls of this description can be satisfied or not is not a question arising under this writ of error. The mortgagee had a right to an order of court for the sale of the premises as they were described in the mortgage, unless the court could see that the description was of a character which could not be rendered certain or definite, which was not the case here, and the mortgagee took his decree, and the purchasers took their title at their peril, and assuming the risk as to their ability to furnish proof to locate the land.
If a mortgage described the mortgaged premises as ten acres of land, part of a certain quarter section, and bounded by a line beginning at the north-east corner of a house then occupied by A 13, and running thence south eighty rods, thence east twenty rods, thence south eighty rods, thence west twenty rods to the place of beginning, undoubtedly a court might, upon a scire facial order the sale of the premises by such description, and if the house called for as the starting point could be proved, the purchaser under a sale would take the title of the mortgagor; but if it should prove there was no house on the land, the description would fail, and he would take nothing. So here, if the deed from Hubbard to Bussell, referred to for the description, can be produced and identified, and that deed contains a description capable of definite location, and if it further appears that the property as to which the proof is offered was not within the excepting clause of the mortgage, then the purchaser making this proof will show a good title under the mortgage. The description here is of the same character as that which was held good in Choteau v. Jones, 11 Ill. 300; See also Benedict v. Dillehunt, 3 Scam. 287.
We have considered all the errors assigned, and deem none of them fatal to the judgment.
Judgment affirmed.
