Upton, J.
In March, 1886, and prior thereto, appellant, Davidson Harris, Strawther Givens, Sam’l McFarland, H. & W. O. Cadwallader were copartners, conducting business at Abingdon, Illinois, in the firm name of the “Union Bank of Abingdon.” The appellee and Strawther Givens, a member of the above named copartnership, were administrators of the estate of one Jacob Young, deceased. The administrators had made deposits in the bank, of estate funds, amounting to 84,200, prior to March 17, 1886. At this date such funds were required to settle the estate. The bank had no money with which to pay such deposits. To meet the emergency it was agreed between the copartnership bank and the administrators that a note should be given such administratoz-s for the amount so on deposit, which was executed and delivez-ed by such copartnership bank to such administz’ators. The note so executed bore date March 17, 1886, was for the aznount of such deposit, payable to such administrators, in nine months after date, with izzterest at seven per cent from date, signed by the bank, and the several members of such copartnership izzdividually. This note soon after its date, and presumptively before maturity, was duly transferred by indorsement to Milton B. Hardin the appellee. Appellee obtained the money necessazy to settle the estate of which he was administrator from John E. Cox. To obtain which money and as security therefor, appellee executed to Cox a mortgage on his own farm, the Cadwalladers tuz-ned over to Cox some collaterals^ and Givens transferred to Cox a promissory note he held against appellant (F. P. Foltz), due Givens individually, dated December 11, 1884, for 82,500, secured by mortgage on real estate itz Abingdon, all of which securities were held by Cox as collateral, and to the “ bona fieles” and validity of which no question is made.
Appellant’s note not being paid, Cox foz-eclosed the mortgage security iiz the Circuit Court of Knox County, obtained a decree of foz’eclosure, zipon which a sale of the estate therein described was duly advertised, and when offered for sale by the master, there being no bidders therefor, the attozmeys for appellee, without any instz-uctions from, and in the absence of, the appellee, directed the premises to be struck off to the appellee for the full amount of the decree, $2,419.54, which was done by the master making the sale. Upon notifying appellee of the result of the sale, he at once and within ten days, and before filing the certificate of such sale, notified the master in chancery that he declined and refused to sanction or ratify such sale or the bid therefor made and also in like manner and at the same time the appellee Hardin and Givens were notified of Cox’ refusal to ratify or in any manner approve the sale, or the bid so made, and that unless they, or one of them, would pay the amount so bid to apply on their indebtedness to him, the property would bo again advertised and resold. Upon this notice being given the parties, Cox, Givens and Hardin met, and Givens being the individual owner of the Foltz mortgage indebtedness, being willing to allow the debt due him from appellant Foltz to be canceled and satisfied to the full amount of the bid, $2,419.54, it was agreed that Cox should hold the mortgaged property so sold him by such master, simply for collateral security, as it was held by him before the sale, and in case the premises so sold were not redeemed by Foltz, the mortgagor, or his creditors according, to law, and the title thereto vest in Cox, he should then resell the same to the best advantage, and give Hardin credit on his indebtedness to Cox for the actual amount Cox might so receive, or upon full payment of the indebtedness due Cox he should release his claim to the property; in other words, Cox thought he might obtain the legal title to the mortgaged estate by the sale, yet, as between him and his assignor, Givens, it was to be treated as collateral to Hardin’s indebtedness to Cox to the same extent and in like manner as if no foreclosure or sale of such collateral had been made. To this agreement Foltz was not a party, nor was he consulted in regard thereto, his rights, equities and interest being regarded as in no manner abridged, impaired or affected thereby.
The mortgaged premises so sold were not redeemed, and after the time for redemption allowed by law had expired, pursuant to the agreement, Cox received the master’s deed therefor. Failing to obtain any offer for the property (which still remained in possession of Foltz) exceeding $1,200, in October, 1889, Cox arranged with Hardin (his debtor) that he should pay the full amount due Cox on the original loan, except the sum of 81,256, upon the payment of which Cox should release Hardin in full, on the original indebtedness, and extend further time to Givens in which to pay the 81,256, Cox in the meantime holding the master’s deed and the title of the land, as collateral security for the payment of that sum by Givens, which being done, and the entire payments which had been made to Hardin to apply on the original note of 84,200 against the bank copartnership having been indorsed thereon, Hardin brought suit on the last named note, to which all the copartners were made parties defendants, appellant and Davidson Harris being alone served with process. The declaration filed contained a special count upon the note and the common counts, to which appellant interposed (a demurrer, general and special, which being overruled), pleaded the general issue, and issue was taken thereon. A default was taken as against Hardin, and a jury was impaneled to try the issue on behalf of Foltz, appellant, and returned a verdict for appellee and against Davidson Harris and appellant in the sum of 82,165.82, upon which, after overruling a motion for a new trial, the trial court gave judgment, and appeal was taken to this court.
The first point made -by appellant is that the court below erred in overruling the demurrer interposed to the declaration. By pleading over to the declaration the demurrer was waived. Hye v. Wright, 2 Scam. 222.
The point made as to variances can not be made in the first instance in this court, and the abstract fails to show that it was interposed in the court below. City of Bloomington v. Tebballs, 17 Ill. App. 455; City of Elgin v. Kimball, 90 Ill. 356; I. & St. L. Ry. Co. v. Estes, 96 Ill. 473.
The special count in the declaration stated and set out an alleged partnership, and that the notes sued upon were for a partnership indebtedness. Hnder the pleadings therefor, the partnerships and the consideration of the alleged obligation stands admitted. Sec. 36, Chap. 110, R. S.
The main question arising upon this record.is in reference to the disposition of the note secured by mortgage for 82,500, given ‘by F. P. Foltz, appellant, to Strawther Givens, and by him turned over to Oox as collateral as has been before stated. It is insisted by Foltz, appellant, that inasmuch as the mortgaged estate was sold at foreclosure sale for the sum, $2,419.57, and Cox obtained a conveyance thereunder, therefore that amount should have been indorsed upon the $4,200 note given by the bank to the administrators of Young’s estate. It will be noticed that Givens held the note and mortgage against appellant in his own right; between himself and appellee there existed the relation simply of debtor and creditor. Appellee and his assignor, Cox, alone had the right to the money due on appellant’s mortgage.
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Upton, J.
In March, 1886, and prior thereto, appellant, Davidson Harris, Strawther Givens, Sam’l McFarland, H. & W. O. Cadwallader were copartners, conducting business at Abingdon, Illinois, in the firm name of the “Union Bank of Abingdon.” The appellee and Strawther Givens, a member of the above named copartnership, were administrators of the estate of one Jacob Young, deceased. The administrators had made deposits in the bank, of estate funds, amounting to 84,200, prior to March 17, 1886. At this date such funds were required to settle the estate. The bank had no money with which to pay such deposits. To meet the emergency it was agreed between the copartnership bank and the administrators that a note should be given such administratoz-s for the amount so on deposit, which was executed and delivez-ed by such copartnership bank to such administz’ators. The note so executed bore date March 17, 1886, was for the aznount of such deposit, payable to such administrators, in nine months after date, with izzterest at seven per cent from date, signed by the bank, and the several members of such copartnership izzdividually. This note soon after its date, and presumptively before maturity, was duly transferred by indorsement to Milton B. Hardin the appellee. Appellee obtained the money necessazy to settle the estate of which he was administrator from John E. Cox. To obtain which money and as security therefor, appellee executed to Cox a mortgage on his own farm, the Cadwalladers tuz-ned over to Cox some collaterals^ and Givens transferred to Cox a promissory note he held against appellant (F. P. Foltz), due Givens individually, dated December 11, 1884, for 82,500, secured by mortgage on real estate itz Abingdon, all of which securities were held by Cox as collateral, and to the “ bona fieles” and validity of which no question is made.
Appellant’s note not being paid, Cox foz-eclosed the mortgage security iiz the Circuit Court of Knox County, obtained a decree of foz’eclosure, zipon which a sale of the estate therein described was duly advertised, and when offered for sale by the master, there being no bidders therefor, the attozmeys for appellee, without any instz-uctions from, and in the absence of, the appellee, directed the premises to be struck off to the appellee for the full amount of the decree, $2,419.54, which was done by the master making the sale. Upon notifying appellee of the result of the sale, he at once and within ten days, and before filing the certificate of such sale, notified the master in chancery that he declined and refused to sanction or ratify such sale or the bid therefor made and also in like manner and at the same time the appellee Hardin and Givens were notified of Cox’ refusal to ratify or in any manner approve the sale, or the bid so made, and that unless they, or one of them, would pay the amount so bid to apply on their indebtedness to him, the property would bo again advertised and resold. Upon this notice being given the parties, Cox, Givens and Hardin met, and Givens being the individual owner of the Foltz mortgage indebtedness, being willing to allow the debt due him from appellant Foltz to be canceled and satisfied to the full amount of the bid, $2,419.54, it was agreed that Cox should hold the mortgaged property so sold him by such master, simply for collateral security, as it was held by him before the sale, and in case the premises so sold were not redeemed by Foltz, the mortgagor, or his creditors according, to law, and the title thereto vest in Cox, he should then resell the same to the best advantage, and give Hardin credit on his indebtedness to Cox for the actual amount Cox might so receive, or upon full payment of the indebtedness due Cox he should release his claim to the property; in other words, Cox thought he might obtain the legal title to the mortgaged estate by the sale, yet, as between him and his assignor, Givens, it was to be treated as collateral to Hardin’s indebtedness to Cox to the same extent and in like manner as if no foreclosure or sale of such collateral had been made. To this agreement Foltz was not a party, nor was he consulted in regard thereto, his rights, equities and interest being regarded as in no manner abridged, impaired or affected thereby.
The mortgaged premises so sold were not redeemed, and after the time for redemption allowed by law had expired, pursuant to the agreement, Cox received the master’s deed therefor. Failing to obtain any offer for the property (which still remained in possession of Foltz) exceeding $1,200, in October, 1889, Cox arranged with Hardin (his debtor) that he should pay the full amount due Cox on the original loan, except the sum of 81,256, upon the payment of which Cox should release Hardin in full, on the original indebtedness, and extend further time to Givens in which to pay the 81,256, Cox in the meantime holding the master’s deed and the title of the land, as collateral security for the payment of that sum by Givens, which being done, and the entire payments which had been made to Hardin to apply on the original note of 84,200 against the bank copartnership having been indorsed thereon, Hardin brought suit on the last named note, to which all the copartners were made parties defendants, appellant and Davidson Harris being alone served with process. The declaration filed contained a special count upon the note and the common counts, to which appellant interposed (a demurrer, general and special, which being overruled), pleaded the general issue, and issue was taken thereon. A default was taken as against Hardin, and a jury was impaneled to try the issue on behalf of Foltz, appellant, and returned a verdict for appellee and against Davidson Harris and appellant in the sum of 82,165.82, upon which, after overruling a motion for a new trial, the trial court gave judgment, and appeal was taken to this court.
The first point made -by appellant is that the court below erred in overruling the demurrer interposed to the declaration. By pleading over to the declaration the demurrer was waived. Hye v. Wright, 2 Scam. 222.
The point made as to variances can not be made in the first instance in this court, and the abstract fails to show that it was interposed in the court below. City of Bloomington v. Tebballs, 17 Ill. App. 455; City of Elgin v. Kimball, 90 Ill. 356; I. & St. L. Ry. Co. v. Estes, 96 Ill. 473.
The special count in the declaration stated and set out an alleged partnership, and that the notes sued upon were for a partnership indebtedness. Hnder the pleadings therefor, the partnerships and the consideration of the alleged obligation stands admitted. Sec. 36, Chap. 110, R. S.
The main question arising upon this record.is in reference to the disposition of the note secured by mortgage for 82,500, given ‘by F. P. Foltz, appellant, to Strawther Givens, and by him turned over to Oox as collateral as has been before stated. It is insisted by Foltz, appellant, that inasmuch as the mortgaged estate was sold at foreclosure sale for the sum, $2,419.57, and Cox obtained a conveyance thereunder, therefore that amount should have been indorsed upon the $4,200 note given by the bank to the administrators of Young’s estate. It will be noticed that Givens held the note and mortgage against appellant in his own right; between himself and appellee there existed the relation simply of debtor and creditor. Appellee and his assignor, Cox, alone had the right to the money due on appellant’s mortgage. Appellee and his assignor, Cox, upon the foreclosure and sale of appellant’s mortgaged estate allowed appellant the full amount for which that mortgaged property was sold and far more than this record shows it was reasonably worth; if not so, why was it not redeemed? There is no pretense of fraud or wrong in the making of that sale, or that other or different interests existed in or to that mortgaged property or the indebtedness thereby secured than as above stated. How, then, can any controversy in reference to the matter arising out of arrangement proposed or existing between appellee and Cox, become a factor in the contention here in question ? The contention in the case at bar arises upon a note for the payment of which to appellee, both appellant and Strawther Givens were, as copartners, equally bound. Appellee, to meet his share or portion thereof turned out securities to him belonging in or to which neither the copartnership nor the individual members thereof, save himself and his debtor, had the least possible interest. What right had these copartners as such, to those securities or any part thereof? Flo relation of trust or principal and surety existed between them. What matter to those copartners how much or little, should be derived from, or when or how these securities should be enforced? That was a matter entirely in which appellee or his assignor, Cox, and the debtor in such securities named were alone interested. True, the more money obtained therefrom, the larger the amount might be applied upon the principal, for which such copartnership were liable, but it could not in the least degree affect the liability of the individuals composing it. If any of the makers of the original note of $4,200 had inad vertently or otherwise paid more than his individual share, those deficient must contribute to its repayment. It could make no conceivable difference to appellant as such copartner whether G-ivens sold the mortgage securities, or the real estate thereby secured, which he held against the appellant for $1,200 on $2,500, so long as the appellant obtained the full value of such real estate so mortgaged applied in satisfaction of his indebtedness to appellee, which we have seen he did, and for more than a full value, as shown by the record, and appellant can not now be heard to complain upon the merits of this controversy.
But it is said in this case there is a pledge, and hence a relation of trust exists, and our attention is invited to that branch of the law. If that contention be conceded, it could exist only between Givens and Cox, and they are not complaining; as between appellant and appellee, the relation of debtor and creditor simply exists.
It is also claimed that error was committed by the trial court in giving and refusing instructions asked for the appellant. But we are not favored with the reasons of the learned counsel for that contention.
It is also said, that the court erred in refusing a new trial. We have carefully examined the instructions complained of and we are unable to find any reversible error therein. Upon the whole, we think substantial justice has been done in the trial and judgment of the Circuit Court and that judgment is affirmed. Judgment affirmed.