Mr. Justice Scholfield
delivered the opinion of the Court:
We think that the evidence in the present record, in respect of Slee’s right to redeem from the insurance company, is not so materially different from that in the record when the case was here before, (Union Mutual Life Ins. Co. v. Slee, 110 Ill. 35,) as to call for a different conclusion from that then reached, and there is, in our opinion, too little ground for controversy in this respect to require a recitation or discussion of the evidence.
The question then occurs, is Slee barred of this right by the conveyances by the insurance company to Averill, by Averill to Thomas, and by Thomas to the railroad company ? It is not claimed that Slee has, since the trustee’s sale, conveyed his equity of redemption, but it is claimed that Averill is a purchaser in good faith, without notice of Slee’s equity.
The deed of the insurance company to Averill was acknowledged on the 20th of April, 1880, but previously, on the 4th of June, 1879, Slee had executed, acknowledged and placed on record a deed declaring that the title of the insurance com,'pany to this property was in trust for himself. Averill was, in 'fact, as was also Thomas, an agent for the railroad company, and he negotiated with Warfield, an agent of the insurance company, for the purchase of the property. Slee testified that he notified Averill several times before the negotiations were concluded, that the property belonged to Slee, and that he was the proper party with whom to negotiate. Other evidence shows that Slee’s declaration of trust was brought to the attention of Averill, and other agents of the railroad company interested, before the negotiations were concluded, and we think the fact fully established by the evidence that the purchase was made by the railroad company, and that the deed of the insurance company was executed and accepted, with full knowledge in the railroad company that Slee claimed the right to redeem, and that the interest of the insurance company in the property was only that of mortgagee.
But it is contended on behalf of the railroad company, first, that the insurance company, in negotiating this sale and in conveying the property to Averill, acted under authority from Slee, and with his consent,—that the price at which the# property was sold was fixed by Slee, and the sale was made to reduce his indebtedness to the insurance company, and that Slee is therefore estopped to claim a right to redeem; second, that by the proceedings in the;, original cause Slee has affirmed the sale to the railroad company, and its title under the conveyance ; and third, the agreement between Slee and the insurance company was not a mortgage, but an agreement to reconvey. In our opinion neither of these positions is tenable.
First—Counsel for Slee deny, in the first place; that Slee, in fact, ever promised that he would convey to Averill, or that he authorized or consented to the sale to him, and Slee himself so testified. But Warfield and Gallery testify that he gave his consent that the property might be sold if it could be sold for the price which Averill paid for it, and it is perhaps proper to say that the preponderance is that way. Assuming that view to be maintained, counsel for Slee then insist upon the Statute of Frauds, as they did in the court below, as being a complete defence to this contention of the railroad company,—Slee having given no authority nor made any promise in writing in regard to the sale or conveyance of the property. Counsel for the railroad company, however, reply to this, that Slee is equitably estopped to deny the sale, and this, therefore, is the only inquiry to which our attention need be directed on this point.
The rule quoted by counsel from Smith v. Newton, 38 Ill. 235, and International Bank v. Bowen, 80 id. 545, we accept as sufficiently accurate for the present question. It is: “Whenever an act is done or a statement made by a party which can not be contradicted or contravened without fraud on his part and injury to others whose conduct has been influenced by the act or admission, the character of an estoppel will attach to what would otherwise be mere matter of evidence.” This, it will be observed, requires that the act done or statement made shall have induced action which would not otherwise have been taken, and that the party so acting shall be injured by a repudiation of the act done or statement made. The evidence here, in our opinion, does not bring this case within these requirements.
It has been seen that the negotiations on the part of the insurance company were conducted by Warfield. He testified that Averill made application to him to buy the property, and inquired the price; that witness replied that the price was $3500; that Averill then said he would give $300 for the refusal of that price for a stated time; that Warfield communicated this offer to Slee, and Slee was not satisfied with the price; that Slee then said, if Warfield could get a sufficient amount for the property to reduce his indebtedness to the insurance company to $3000, he would approve the sale and give a quitclaim deed. As the insurance company figured up the indebtedness of Slee at $1680, this would require the property to be sold for $4680. Warfield then notified Averill that he could have the property for $4680, and, with the insurance company’s deed, a quitclaim also from Slee. Averill accepted the offer. The insurance company executed a quitclaim to Averill, but Slee refused to do so. Then, before any deed was delivered or payment made, an agreement in writing was entered into, which is hereafter set out. Warfield, among other things, said: “The contract was executed at the suggestion of Averill, as we did not have a quitclaim from Mr. Slee.” And Crawford, agent for the railroad company, testified, speaking of Slee’s claim to the property and his refusal to quitclaim: “I thought, from the statement and the looks of it, that the insurance company’s title was good, but took this precaution of the agreement in case anything should develop in any litigation that might come up as between them,” (i. e., the insurance company and Slee,) “and at the time decided to go on with the condemnation proceeding.” And again he said: “When this contract was executed by the insurance company I authorized the sale, and it was closed by the delivery of the papers to Averill, and his payment of the money.” The agreement reads as follows:
“Memorandum of Agreement
Made this 24th day of March, A. D. 1880, between the Union Mutual Life Insurance Company and Albert J. Averill:
“Witnesseth, that whereas, the said Averill has purchased from the said company, for the sum of $4680, the following described real estate, situate in the city of Chicago, county of Cook, and State of Illinois, to-wit: Lot number one (1), in block number nine (9), assessor’s second division of the east fraction of the north-east quarter of section twenty-one (21), township thirty-nine (39) north, range fourteen (14), east of the third principal meridian; also so much of lots eleven (11) and twelve (12), in block two (2), in Wilder’s north addition to Chicago, described as follows, to-wit: beginning at the northwest corner of said lot one (1), and running thence west to the center line of the .alley between Third and Fourth avenues, thirty feet, more or less; thence south on an extension of said center line, sixty feet; thence east parallel with the north line of lot hereby described, to the west line of lot two (2) in said block nine of said assessor’s division; thence north on the west line of said lots one (1) and two (2), in said block nine (9), sixty feet, to the place of beginning,—the title to which land was acquired by the said company by virtue of a sale made under and by virtue of the power of sale contained in a certain trust deed given by William J. Slee and wife to Levi D. Boone, dated June 4, A. D. 1870, and recorded in the recorder’s office for said county of Cook, in book 566 of deeds, page 118, and in book 851 of records, page 317. And whereas, the said William J. Slee has placed on record in said recorder’s office a notice to the effect that he claims the right to redeem said property from said sale, the validity of which claim the said company denies:
“Now, therefore, it is agreed that in the event of redemption made by said Slee, his heirs, executors, administrators or assigns, of the property described in- said trust deed, the said Averill, his heirs or assigns, shall be entitled to have and receive out of the redemption money paid by said Slee, his heirs, executors, administrators or assigns, the said sum of $4680, with interest thereon from the day of the date hereof, at the rate of six per centum per annum, and also whatever money shall, in tlm event of such redemption, be decreed by the court to be paid by the said Slee, his heirs, executors, administrators or assigns, for or on account of any taxes, assessments or other outlays made by the said Averill upon the property so as aforesaid purchased by him.
“In witness whereof, the said Union Mutual Life Insurance Company hath caused this agreement to be subscribed by John E. DeWitt, its president, the day and year first above written.
Union Mutual Life Insueance Company.
By John E. DeWitt, President.”
After this instrument was executed, and probably on the 20th of April, 1880, it and the deed of the insurance company were delivered to Averill, and Averill on that date, but not until then, paid to the insurance company $4680. It is thus certain that any promise of Slee to make a quitclaim was abandoned, and that the deed of the insurance company was delivered, and the money paid by Averill, on the faith of this agreement, and it is, moreover, therefore impossible that either the insurance company or the railroad company can have been injured by Slee’s failure to quitclaim, farther than the inappreciable value of the loss of time of their agents in negotiating for this quitclaim.
Second—We do not think, in view of the fact that Slee has always denied the authority of the insurance company to sell and convey this property, or any interest in it, that any acquiescence in the sale can be inferred, because, in the original bill, he omitted to make the railroad company a party. If he had been right in his view, the deed of the insurance company, having been executed with notice of his ownership of the title, would have conveyed nothing to the railroad company, and he would hence have been under no necessity to have noticed the transaction between these companies. It may be conceded that Slee was mistaken as to the law applicable to his case; but since it is evident that his omission to make the railroad company a party was because of that mistake, and not because he, in fact, admitted its title, it can be of no importance here. The averment in the amendment is, that the railroad company made an agreement with the insurance company “to purchase its interest” (not the title,) in the property described in the trust deeds, etc.; and the prayer is, “that it may he decreed that the title to any land mentioned in this amendment, or in the original bill, which may have been conveyed by said insurance company to Averill, and by him to said railroad company, or by said insurance company to said railroad company directly, was conveyed with notice of and subject to all the rights and equities of complainant as stated in such hills,” etc. If this is, even by implication, an acquiescence by Slee in the sale, we are unable to comprehend the import of the language employed. That Slee intended to assert his title as paramount to that conveyed by the insurance company, would seem to be as plain as language can make it.
Third—The testimony of Judge Tuley settles, beyond question, that the insurance company and Slee intended to occupy towards each other, with reference to this property, the relations of mortgagor and mortgagee, and not those of vendor and vendee. He said: “The property was to be sold under the trust deed, bid in by the insurance company, and new papers were to be made by which the loan would be extended. The insurance company was to make a deed to Slee and take a mortgage back.” There is nothing in the record showing another and different agreement between the parties.-
This brings us to the question whether Slee, by accepting or availing of the condemnation money in the hands of the county treasurer, is bound to accept it as a payment in full for the condemnation of all the property taken by the railroad company, and as barring any further claim on his part to that property. In our opinion, it must be answered in the negative. It is in proof that the evidence given in the condemnation proceeding related to the entire property, and that the amount assessed by the jury was intended to be the compensation for the entire property taken and damaged, though, by mistake, the property described in the verdict is only lot 1, in block 9, etc., and that judgment was rendered upon the verdict without discovering the mistake; and it is contended that the maxim, that “he who seeks equity must do equity,” is applicable, and, inasmuch as Slee accepts compensation for the whole, he must consent that the whole is condemned. A little farther examination into the facts affecting the situation of the parties will disclose that this, though at first view plausible, is not sound.
This is not a case where Slee has an election to take the land or the money, as it would have been had the verdict and judgment been defective and insufficient as to all and every part of the property sought to be condemned. Had the evidence shown a sum certain as compensation for the taking of the entire property, but that the verdict and judgment were defective and insufficient to vest any right in any part of the property in the petitioner, and Slee been seeking to recover that sum, then he would have been bound to consent that the railroad company should take the entire property. He would not have been concluded by the judgment, and he might have retained the property, but he could not have taken the money and property both,—treated the property both as condemned and not condemned, at the same time. Taking the condemnation money would have estopped him to deny the condemnation. Town v. Town of Blackberry, 29 Ill. 137; Kile v. Town of Yellowhead, 80 id. 208.
The judgment here is conclusive against Slee as to the property described in the verdict and judgment, and it is therefore impossible that he can make an election to retain it or accept the compensation for its taking. He can only accept the compensation. And since there is no apportionment of any part of the compensation assessed, to the property not described in the verdict and judgment, it is impossible to say that by seeking or accepting the compensation assessed, Slee has elected to treat that property as condemned also. '
It is conceded that this verdict and judgment can not now be amended in this proceeding. It is to be kept in mind that the proceeding is in invitvm,—that the defendant therein is consenting to nothing, and that upon the party seeking to divest his title is the burden of showing a verdict and judgment having that effect. This is elementary, and too familiar to need the citation of authority in its support. The railroad company is alone responsible for any mistakes that occurred in this proceeding. It should have taken steps in the county court to have corrected the judgment. It was not hound to take the property after condemnation. If it deemed the compensation assessed was too high, it was within its discretion to decline paying, or depositing the amount assessed as compensation, and to abandon the condemnation. Chicago v. Barbian, 80 Ill. 482; City of Bloomington v. Miller, 84 id. 621.
But the evidence shows that the compensation here assessed was deposited with the county treasurer, by the proper agent of the railroad company, after it was known what property was described in the verdict “and judgment, and that' this compensation was assessed for the taking of that property only. Andrew Crawford, the agent of the railroad company having in charge the procuring of the right of way, depot grounds, etc., testified: “I was aware that the record of the judgment in the condemnation suit showed only lot 1, before I paid the money to the treasurer and took out a writ of possession. The reasons that induced me to do so were that it was necessary for the company to obtain possession of the property, and after fully considering it myself, and consulting our attorney, it was thought best and safe to make the deposit.”' This should estop the company from saying that the compensation deposited was for other than the property described in the verdict and judgment. Moreover, the constitution guarantees “that private property shall not be taken or damaged for public use without just compensation. Such compensation, when not made by the State, shall be ascertained by a jury, as shall be prescribed by law.” (Sec. 13, art. 2.) No jury has ascertained, here, the “just compensation” for taking the property not described in the verdict and judgment; and to take that property from Slee because he elects to take a sum assessed, on evidence given with reference to the property described in the verdict and judgment, and that not described in them, in gross, would plainly be in violation of this clause of the constitution, for, there being no apportionment of0 the compensation in respect of the different pieces of property, there is no opportunity of an election to take equivalents, and Slee would he compelled either to reject all compensation for the property described in the verdict and judgment, or to abandon his ownership of his property not described in the verdict and judgment. The maxim quoted can have no application to such a case.
The question next in order is, what interest in the property-passed by the deed of the insurance company? It is contended on behalf of the railroad company, that if a perfect title did not pass, at least the interest of the insurance company as mortgagee passed. This is controverted by counsel for Slee, who contend that inasmuch as there was no assignment of the debt, nothing could pass by the deed of the mortgagee.
Where the debt is evidenced by an instrument separate and distinct from the mortgage,—as, for instance, a promissory note or bond,—the rule in this State undoubtedly is, that the assignment of the debt carries the mortgage with it, and the mortgage can have no validity separate and apart from the debt, nor otherwise than as an incident to the debt. (Olds v. Cummings, 31 Ill. 188; Delano v. Bennett, 90 id. 533; Towner et al. v. McClelland, 110 id. 542.) But we have seen that the original trust deeds were foreclosed by sale, and a trustee’s deed was executed, which, upon its face, assumed to vest an absolute title in the insurance company, but which, by reason of the agreement made at the time of its execution, between Slee and the insurance company, was, in fact, but a mortgage to secure whatever indebtedness was then due from Slee to the insurance company. No account was had between Slee and the insurance company to ascertain the amount then due, and no instrument in writing was executed expressing the amount of that indebtedness. The absolute deed was a mortgage because of the agreement, and the amount it secured was whatever balance should be due from Slee to the insurance company upon an accounting. When, therefore, the insurance company assumed to convey a fee to Averill, it only conveyed its interest as mortgagee, because Averill was charged with notice that it had no other interest to convey. The deed operated as an equitable assignment of the mortgage, and thereafter Averill, and the railroad company, for whom he purchased, held as mortgagee, just as the insurance company had done before its conveyance. 1 Jones on Mortgages, (2d ed.) sec. 808, and authorities cited in notes 4 and 5.
It must then be quite clear that the railroad company was an indispensable party to the accounting before the master in chancery, for upon that accounting depended what it should receive upon redemption. The rule is, that upon the hearing before the master in chancery, “the parties have the same right to be heard, by themselves or by counsel, to introduce evidence, cross-examine witnesses, and to take the various steps authorized by law, as if the hearing was before the chancellor instead of the master.” Whiteside v. Pulliam, 25 Ill. 285. To like effect, see, also, McClay, Admr. et al. v. Norris, 4 Gilm. 370.
The record shows that the railroad company objected, on the hearing before the master in chancery, to the reading of the evidence of certain witnesses produced by Slee, and that, to remove all grounds for objections, Slee produced some and offered to produce all of said witnesses, to enable the railroad company to cross-examine them. This was after the witnesses had all been examined. The master in chancery thereupon overruled the objection. The same objection, supported by affidavits that the witnesses had been examined in the absence of the railroad company, and without notice to it, was renewed in the circuit court, and Slee there again offered to produce the witnesses for cross-examination by the railroad company, but no witnesses were actually produced by Slee for that purpose. The court took the motion under advisement until the hearing, and then overruled it. We think there was error in this ruling. The party is entitled to be present and listen to the testimony of the witness as it is detailed by him in chief, and to then, or as soon thereafter as convenience will admit, cross-examine him; and it does not cure the error of denying this opportunity, to allow him, at some subsequent day, to have the witness brought before the master in chancery for his cross-examination. It is important that a party shall be allowed an opportunity to confront witnesses who may testify against him, while giving their hostile evidence.
It is contended that the court below erred in crediting Slee’s indebtedness with the amount of the condemnation money as of the date it was paid into the hands of the county treasurer, December 27,1880. We do not think the objection is tenable. It is true that Slee, in his original bill, filed before the condemnation money was paid into the county treasury,—that is, on the 13th of October, A. D. 1880,—prayed that the insurance company might be enjoined from collecting the condemnation money from the county treasury. But the insurance company answered this bill before the condemnation money was paid to the county treasurer, (on the 16th day of November, A. D. 1880,) denying that it had any interest in the condemnation money, and alleging that it belonged to A. J. Averill, to whom it had conveyed, etc., and who, as we have before seen, in fact held for the railroad company; and this, in our view, as we have heretofore shown, was true. Averill,—or rather, the railroad company,—as assignee, stood, as respects the land conveyed by the insurance company, in its place. The condemnation money took the place of the land, and the mortgagee,—and, by consequence, its assignee,—was entitled to be satisfied out of it before Slee was entitled to any part of it. Jones on Mortgages, sec. 708; Chicago, Burlington and Quincy Railroad Co. v. Chamberlain, 84 Ill. 333.
There is nothing in the record to show that Slee did anything to prevent the railroad company from having the money paid pursuant to the judgment of condemnation, or to prevent its retaining the money on account. No order of court was made, or asked, to that effect, and Slee did not himself take or offer to take the money from the treasurer. The statute provides, (sec. 14, p. 477, Rev. Stat. 1874,): “Payment of compensation adjudged may, in all cases, be made to the county treasurer, who shall, on demand, pay the same to the party thereto entitled, taking receipt therefor, or payment may be made to the party entitled.” There was, therefore, in truth, no necessity for the railroad company paying the money, to the extent of the balance due from Slee, into the hands of the treasurer. Being entitled to retain it as assignee, it would have been sufficient for the railroad company to have set up that fact in its answer, and proved it on the trial. Certainly it is not Slee’s fault that it has been deprived of the use of this money.
It is insisted we should, in this opinion, settle the equities between the insurance company and the railroad company. To do this any farther than we have already done, would be to go entirely outside of the record, for no relief is asked by one of these companies as against the other, in any pleading before us.
It is further objected against the decree below, that it should have required a condemnation of the property included in the petition for condemnation, but omitted from the verdict and judgment. Proceedings to condemn property, under the Eminent Domain act, are legal,—not equitable. Either party is entitled to have a jury, and the introduction of evidence and mode of conducting the trial after the jury is impaneled, is according to the rules and practice in trials at law. We think it would be inconvenient, and subserve no useful purpose, for a court of equity to take charge of such a trial. It would have to remit it to a court of law, and could only receive and act upon the judgment of that court after judgment rendered. We think it is best to remit the parties to the proper forum in the first instance.
The remaining contention of appellant, deemed necessary to notice, is, that the court below erred in dissolving the injunction of the trespass suits brought on account of the taking of the property not condemned. We do not think that the case, in this respect, is one calling for the interposition of a court of equity. Whatever defence the railroad company may have, is good at law.
Several cross-errors are assigned hy appellee:
' First—He contends that the court erred in not dissolving the injunction as to the property of which the railroad company is adjudged to have title. It is true, that as to that property the defence at law is complete. But how is appellee injured by this decree ? We are unable to perceive. It deprives him of no right.
Second—He argues that if he must redeem from the railroad company, he should be allowed to redeem as to the 6§ feet sold on execution. The 6J feet lot was not included in either of the mortgages executed by Slee to the insurance company, and it is not included in the deed, or the agreement accompanying it, executed by the insurance company to Averill. Nor is it included in Slee’s declaration of title, which he caused to be recorded. Conceding that the judgment upon which it was sold was fraudulent, there is no proof that Averill knew that fact when he purchased the certificate of sale. Slee was himself present at the sheriff’s sale, but made no objection, and gave no notice of his claim. He let the period of redemption go by, and made no effort either to redeem or to have the sale set aside. We think the court properly refused to disturb the title. Slee is entitled to credit, in his accounting, for the amount for which this lot was sold by the sheriff, and that he received.
The decree below is affirmed, except as to that part relating to the accounting, which, in the respect and for the reason before indicated, is reversed; and to the end that the account may be taken anew, in conformity with the views here expressed, the cause is remanded. The case is one, however, wherein, in our opinion, it is equitable that the costs in this court should be divided. The clerk will therefore tax one-half the costs in this court to appellants, and the other half to appellees.
Decree reversed in part and in part affirmed.