Thomas v. Negus

7 Ill. 700

Opinions

"The Opinion of the Court was delivered'by

Treat, J.

Footnotes

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In August, .1836, William )G. Pinckard éxe.cuted to Marsh, Hankinson & Co., a lease .of certain lots in Alton, for the term of five years, at an annual rent of $800. On the 5th of January,. 1837, Pinckard executed a mortgage on the lots to Joseph Duncan,•> to secure the payment of $9,641-83. On the 25th of the same, month, Negus &■ Robbins conveyed the lots to Pinckard, and at the same .time took from him a mortgage thereon, to secure the payment of $4,143-75. In February, 1840, several suits were commenced by Duncan and other persons against the lessees, to recover the amount of rents due-, by them. The. lessees thereupon filed a bill of interpleader against the plaintiffs in those actions, praying'the, Court to determine who was entitled to receive the rents, and offering to pay them according to the order of the Court- They brought the money into Court, and obtained an injunction staying the.proceedings in the actions at law. In May, 1843, Negus & Robbins filed a bill against Duncan, Pinckard and others, for tjie purpose of foreclosing the mortgage made to them by Pinckard. By "their bill, they claimed the rents in controversy, and insisted that their mortgage was a prior lien to the one made to Duncan. Duncan by his answer claimed the rents, and insisted that his mortgage was .the prior lien. In July,-1843, this suit and the bill of interpleader were consolidated, and heard and determined as one case. A decree was entered, directing the rents to be paid to Duncan, and declaring the mortgage of 'Negus & Robbins to be the prior lien. It was further ordered, that if Duncan and, Pinckard did not redeem within six months, the mortgaged premises should be sold, "and the proceeds applied, in the first place, to the payment,of the mortgage of Negus & Robbins; the surplus to be applied to the satisfaction of Duncan’s mortgage. After the rendition of this decree, Duncan received the rents directed to be paid to him, amounting to $1,531’11.

Duncan has departed this life, and his administrator now prosecutes a writ of error. He assigns for error, that so much of the decree as gives to Negus & Robbins a priority in the payment of their mortgages is erroneous. To this assignment of error, Negus & Robbins filed their plea, averring, that Duncan acquiesced in the decree, and released all errors therein, by voluntarily accepting the rents; and that his estate is insolvent, and wholly unable to refund the same. There is a replication to this plea, a demurrer thereto, and a joinder in demurrer. The replication introduces no new matter into the case, which, in the opinion of the Court, changes the character of the defence presented by the plea. The question will, therefore, be considered as if on demurrer to the plea. In our opinion, the plea is valid. The receipt of the money by Duncan, under the circumstances of the case, necessarily operated as a release of errors. By accepting the rents under the decree, he acquiesced in and approved of it. A party ought not to receive the benefit of a decree, and then complain that it is erroneous-. If ,dissatisfied with it, he should abstain from doing any act, which may change the situation, or impair the right of the parties, in the event of its reversal. If the decree is to be reversed, the parties ought to be restored to the position they occupied before it was rendered. Their rights should be reciprocal. Any other rule might be productive of great injustice. The present case furnishes a fit illustration. The pleadings admit the insolvency of the estate of Duncan, and its inability to refund the money. Suppose this writ of error should be retained, and the Court, on the hearing of the cause, should be of the opinion that the mortgage to Duncan was the prior lien, and that the rents belonged to Negus & Robbins, or some of the other parties. In such an event, the estate of Duncan would acquire an unjust advantage, and the other parties would be without an adequate remedy to enforce their acknowledged rights. This is not like the case of a judgment or decree, against a party. He may satisfy it, either voluntarily, ór on compulsion, and then .reverse it for error. In such case, he is required to do .the act, .or pay the money. Here, the .party received the rents voluntarily, and he cannot protect himself by , saying, he was required to accept them by the decree of'the Court. The administrator might perhaps have ayoided' the effect of the plea, by bringing the money into this Court, subject to its disposition. If that course had been adopted,'the rights of the parties could be preserved. We have been .referred to the case of Clowes v. Dickinson, 8 Cowen, 328, decided'in the Court of Errors bf JNew York', which seems to lay down a different rule than the one we adopt, in this case. .We have maturely considered that case, and cannot concur in the 'opinion there expressed.

The demurrer will be sustained, and the writ of error ■dismissed.

Xockwood, J. gave no opinion in this case.