Frink v. Neal

37 Ill. App. 621, 1890 Ill. App. LEXIS 268

• Court: Appellate Court of Illinois
• Decided: February 10, 1891
• Status: Published

Opinion

Gary, J.

August 1,1885, the appellant, being indebted to the Lindsley Portable House Company in a large sum, agreed for a part of it to give his note for $1,000, payable in three years, with interest at the rate of eight per cent per annum, payable annually. In execution of that agreement he made the note payable to his own order and by him endorsed, and a deed of trust in the nature of a mortgage, to secure the payment of the note, and deposited both with the trustee in escrow upon terms not shown.

The company sold the securities, the appellee bought them from their vendee, and by the concurrence of everybody having any interest, they were delivered by the trustee to the appellee. Then it was for the first time discovered, that while the deed of trust recited a note bearing interest as agreed, the note itself, by mistake, was written with interest after maturity.

The record contains no evidence of any of these matters extrinsic to the note and deed of trust, but the bill avers them, and the decree recites that “ the cause having come on to be heard upon the bill of complaint as amended herein, the answer of the defendant, Henry F. Frink, thereto, the replication of the complainant to said answer, and the proofs taken in said cause ” finds, “ that all the material allegations in the said bill as amended are true as therein stated.” What the proofs were the record does not show.

This recital supplies the place of—perhaps is better for the appellee than—the proofs. It imposes upon the appellant the burden of preserving the evidence, if he would question its sufficiency to sustain the findings.

The practice has been uniform ever since the statute of 1849 by which, in chancery, evidence orally was first permitted. White v. Morrison, 11 Ill. 361; Cooley v. Scarlett, 38 Ill. 316; Mauck v. Mauck, 54 Ill. 281; Secrist v. Petty, 109 Ill. 188. And the last two cases show that the finding in a general form, as above quoted, is enough. ■

When the appellee, without notice of the mistake, bought the securities, he acquired all the equities of the original creditor. Union Oil Co. v. Maxwell, 33 Ill. App. 421; Whitney v. Roberts, 22 Ill. 381; Smith v. Wright, 49 Ill. 403. The deed of trust in this case, as in Cheltenham Co. v. Whitehead, 128 Ill. 279, provided that the trustee “ in his own name or otherwise ” might file a bill, and that case answers the objections made in this, to the bill being filed by the holder of the indebtedness and to the allowance of solicitors’ fees.

The deed- provided that the whole debt might be declared due for default in payment of interest. - The appellant refusing to correct the mistake, and not paying the interest, the decree of foreclosure, on a bill filed before the three years the note had to run were out, is right.

Judgment affirmed.