Court Record of John White vs James D. Morrison
Source: Reports Of Cases Illinois
John White v. James D. Morrison et ux. and Joseph B. V. Butler.
Appeal from Pike.
1. Chancery practice — oral testimony: The statute which authorizes evidence
in chancery cases to be given orally, was only designed to change the mode of
taking testimony, and not to dispense with the necessity of having the
evidence in the record. (1)
2. Same — must be of record. When this statute is acted on, the testimony of
the witnesses, or the facts proved by them, ought still to appear in the
3. Same. The evidence, or the facts proved by it, may be stated in the decree,
in a bill of exceptions, in a certificate of the judge, or in a master's
report. It is the duty of the circuit court, to see that the evidence is
incorporated into the record in some one of these ways. It will not be
presumed, that any other proof was made, under this statute, than what thus
appears in the record.(3)
4. Same—no evidence presumed given. A general reference to exhibits in a
decree, must be understood as including only those appearing in the record.
5. Same — allegata et probata. A complainant can not allege one case in his
bill, and make proof of a different one. His allegations and proofs must
6. Same — replication. Special replications in chancery are now disused. A
general replication only puts in issue the truth and sufficiency of the
matters stated in the bill and answer. A party may, in an original bill,
anticipate a defence, and allege any matter necessary to explain or avoid it;
or, omitting to do so, on the coming in of the answer, he may introduce the
new matter into the case by an amendment of the bill.(5)
This was a bill filed in the Pike circuit court, in February, 1848, by
appellant, against the appellees, to obtain a decree for the foreclosure of
certain mortgaged premises. The mortgage was executed to appellant on 26th
March, 1842, and acknowledged by Morrison and wife on the same day. After the
execution of the mortgage, Morrison conveyed the mortgaged premises to Butler,
the other appellee, on the 30th day of June, 1843. Butler signed the following
statement, written upon said mortgage:
"June 30, 1843.—I do hereby acknowledge that I was well apprised of the
execution of this mortgage deed being in the hands of John White of Scott
county, previous to the purchase which I made of the same property from James
D. Morrison, known and described in_this mortgage, also in my deed, known as
lots number thirty-six and thirty-seven, in Peters' addition to the town of
Pittsfield; and I admit the same to be put on record, and to the preference of
"Joseph B. V. Butler."
The mortgage was conditioned for the payment of a note of Morrison to White,
dated 26th March, 1842, due in one year, for two hundred and forty-five
dollars, with twelve per cent, interest. The mortgage was recorded in Pike
county, the day of the date of Butler's agreement. Morrison and wife having
failed to answer, the bill was taken for confessed as to them. Butler filed an
answer to the bill, in which he admits the execution of the note and mortgage,
and the conveyance of the mortgaged premises to himself, as stated in the
bill. Admits that he purchased with knowledge of the mortgage, and that he
signed the foregoing agreement, written upon the back of it; but denies any
promise to pay the mortgage. The answer further states, that at September
term, 1840, of the Pike circuit court, one James H. Johnson recovered a
judgment against Morrison for two hundred and fifty-nine dollars and seventy
cents; that on the 8th November, 1845, an execution was issued on said
judgment, which was levied on said premises, and sold by the sheriff to
Jackson Grimshaw, who assigned the certificate of purchase to Butler, the
respondent; that, by reason thereof, the sheriff, in pursuance of said sale
and assignment, gave Butler a deed for the said premises. The answer further
denies a promise to withhold the purchase money from Morrison, or that the
purchase, under the execution against Morrison, was upon any condition that
the rights of the complainant should not be prejudiced.
The cause was heard, on the bill, answer of Butler, replication and
depositions, before Minshall, judge, at September term, 1849, who entered a
decree dismissing the bill. The complainant prayed this appeal, and assigned
for error the dismissal of the bill.
J. Grimshaw, for appellant: 1. Butler's answer not being sworn to, has no
greater effect as evidence than the bill. Rev. Stat.,_ 1845, 96, sec. 21. It
performs the office of pleading alone, and assists in making up the issues. 4
Scam., 20, Nillis et al v. Henderson. Replication being filed, Butler was
bound to prove any facts set up by him in his answer, to avoid relief asked
for in the bill. Jameson v. Conway, 5 Gilman, 229. Answer of Butler may be
used by complainant, to show what the answer admits; but so far as it sets up
new matter, in avoidance of White's demand, such new matter must be sustained
by proof. Hart v. Ten Eyck, 2 Johns. Ch., 90, and note. Allegations in bill
material to relief were admitted by answer. Butler sets up by answer, an
assignment to him of a certificate of purchase, on a sale of the mortgaged
property on execution, issued on judgment older than mortgage. He files a copy
of sheriff's deed, as exhibited, with answer, but does not say he paid for it.
Butler was bound to make strict proof of this new matter in defence, by
producing judgment, execution and sheriff's deed: the original, not a copy.
Record shows nothing but this copy. Jameson v. Conway, 5 Gilman 231.
2. Admitting, for sake of argument, that there is some testimony that Butler
has acquired a sheriff's deed under Johnson's judgment, it should avail him
nothing in this cause. On the principle decided in Smith v. Brown, 5 Gilman,
311, Butler, by his agreement with Morrison, was not bound to pay any thing
after 1st November, 1844, unless Morrison, before that time, paid off these
liens. After that date he had means in his own hands, and had the right, by
the agreement with Morrison, to pay them off himself. Any payment made to
Morrison after November 1, 1844, was made in his own wrong. This title inured
to benefit of White. Morrison paid the only consideration that was paid. Rev.
Stat., 1845, 104, sec. 7; Frisby v. Ballance, 2 Gilman, 145.
3. White, the mortgagee, before the sale under Johnson's judgment, had the
legal title. Butler was a purchaser of Morrison's equity of redemption, prior
to Wright's mortgage, and with express notice of the mortgage. In order to
avail himself of this Johnson title, he must present himself in the attitude
of a bona fide purchaser; he must have purchased in good faith, without
notice, for a valuable consideration, which has been actually paid. He must
show that he would be hurt by this decree. He must show that in good faith he
has acquired some paramount legal title, since June, 1843, when he signed the
memorandum on the mortgage, and that he has actually paid for such title.
Morison having repaid to Butler all that Butler paid for this, Johnson, title,
Butler stands precisely where he did when he signed the memorandum. Jewett v.
Palmer, 7 Johns. Ch. 67; Tourville v. Naish, 3 Peere Williams, 307; Murray v.
Finester, 2 Johns. Ch. 156; Nellwyn v. Lee, 9 Vesey, jr., 32; Beekman v.
Frost, 18 Johns., 562; Howlett v. Thompson, 1 Iredell's Ch., 375. The cases of
Powell et al. v. Jeffries, 4 Scam., 389; Lambert v. Nanny, 2 Mumford, 196, are
strongly in point.
Williams & Lawrence, for appellees: 1. The complainant is not entitled to
relief, unless the proof supports the case made in his bill. M'Kay v. Bissett,
5 Gilman, 501.
2. The defendant, Butler, was not disabled, by the fact of his having
purchased from White, from also purchasing the property at the sheriff's sale
on Johnson's judgment. He had the same liberty of purchasing at sheriff's sale
as any other person; and the purchaser at that sale took a title relating back
to the time when the lien of Johnson's judgment attached. Martin v. Dryden, 1
3. The cases cited by the counsel for the complainant relate to a purchase
made by one person of another, with notice of an outstanding equity in a third
person. In such cases, the purchaser of the legal title is made a trustee for
the holder of the equity. But these are cases where the equity and the legal
title come from the same person.
No case can be found where the purchaser of the legal title is made a trustee
for the holder of the equity, unless the equity and the legal title are
derived from the same person, or unless there is some fraud in the acquisition
of the legal title.
Treat, C. J. This decree can not be affirmed. The case shows a clear right in
the complainant to a foreclosure of his mortgage, unless the defendant Butler,
made full proof of his defence. He alleges in his answer, that he had acquired
the legal title to the mortgage premises, by virtue of a sale and sheriff's
deed, founded on a judgment recovered against the mortgagor before the
execution of the mortgage. The sheriff's deed, although referred to as an
exhibit in the answer, does not appear to have been produced and proved. If
introduced and proved as an exhibit, on the hearing, it would have been filed
with the papers of the case and copied into the transcript sent to this court.
Holdridge v. Bailey, 4 Scammon, 124. But it is contended that the existence of
the judgment and the proceedings under it, is admitted by the bill. Such is
not the fact. The bill states that the defendant, Butler, pretends that he has
purchased the premises, under a judgment older than the mortgage, and then
charges [*365] *that it would be inequitable in him to set up the purchase to
defeat the mortgage, inasmuch as he had agreed to pay off the mortgage. This
statement does not dispense with proof of the allegations of the answer. It is
not an admission that there was such a judgment, or that such proceedings were
had under it. The bill anticipates a particular defense, without conceding it
to be true. We are asked, however, to presume that proof of the defence was
made orally at the hearing, under the provisions of the act of the 12th of
February, 1849, which declares "that hereafter, on the trial of any suit in
chancery, the evidence on the part of either plaintiff or defendant may be
given orally, under the same rules and regulations as evidence in cases at
common law; provided, however, that depositions taken in pursuance of law may
still be read in evidence, as if this act had not been passed." Acts of 1849,
page 133. Previous to the passage of this act, the testimony in contested
chancery cases, was taken down in writing in the form of depositions, except
where the witnesses were examined orally before a master, and the facts proved
by them reported to the court, and when the proof of exhibits was made viva
voce at the hearing. And the depositions, the master's report, and the
exhibits were filed, and made part of the record of the case. M'Clay v.
Norris, 4 Gilman, 370. We are of the opinion that this act was only designed
to change the mode of taking testimony, and not to dispense with the necessity
of the testimony appearing in the record. The parties are permitted to produce
their witnesses in open court, and have them examined orally. The object was
to avoid the inconvenience, expense and delay attending the preparation of a
ease for hearing, where the evidence must be taken by depositions. When this
statute is acted on, the testimony of the witnesses, or the facts proved by
them, ought still to appear in the record. It may be stated in the decree; in
a bill of exceptions; in a certificate of the judge, or in a master's report.
We conceive it to be the duty of the circuit court to see that the testimony
is incorporated in the record, in some one of these ways. This court will not
presume that any other proof was made than what is thus stated in the record.
In this case, the decree recites that the cause was heard on the bill, answer,
replication, exhibits and depositions. The record fails to show that any proof
was made of the sheriff's deed. The exhibits referred to in the decree must be
understood as including only those appearing in the record. For this defect in
the proof of the defendant, the decree must be reversed. Instead of a decree
being entered in this court, the cause will be remanded, that the parties may
have an opportunity to present the whole case on the merits. It may not be
improper to make some further suggestions respecting the case. It was insisted
on the argument that the complainant was entitled to a decree of foreclosure,
even if the allegations of the answer were true, inasmuch as he proved that
the purchase under the judgment was made with the money of the mortgagor. If
such was the fact, Butler can not assert title under the sheriff's deed, to
the prejudice of the mortgage, because, in equity, it was the purchase of the
mortgagor, and inured to the benefit of the mortgagee. But the complainant has
not made a case by his bill, that will authorize him to defeat the purchase on
this ground. He seeks to avoid the purchase on the ground that Butler was
personally liable for the payment of the mortgage. He can not allege one cause
for relief against the purchaser, and make out his case by proof of a
different one. His proof must correspond with the allegations he has made, and
not be inconsistent therewith. He must stand or fall with the case made in his
bill. M'Kay v. Bissett, 5 Gilman, 499. Special replications in chancery are
now disused. A general replication only puts in issue the truth and
sufficiency of the matters stated in the bill and answer. If it is necessary
for a complainant to put in issue any fact on his part, in avoidance of
matters set up by the defendant, he must do it by proper charges in his bill.
He may, in the original bill, anticipate the defence that will be made, and
allege any matter necessary to explain or avoid it; or, omitting all reference
to the defence, he may, on the coming in of the answer, introduce the new
matter into the case, by an amendment to the bill. Story's Eq. Pl., sec. 878;
Tarlton v. Vietes, 1 Gilman, 470.
The decree of the circuit court will be reversed, with costs, and the cause
remanded, with leave to the complainant to amend his bill.
Followed — Ward v. Owens, 12 Ill., 283; Boot v. Renwick, 15 Ill., 461; Nichols
v. Thornton, 16 Ill., 113; Explained — Smith v. Newland, 40 Ill., 100; Cited —
Osborne v. Horine, 17 Ill., 192; Cost v. Rose, 17 Ill., 276; Stacey v.
Randall, 17 Ill., 467; Masterson v. Wiswould, 18 Ill., 48; Moore v. School
Trustees, 19 Ill., 83; Rowan v. Bowles, 21 Ill., 17; Reddick v. State B'k, 27
Ill., 145; Ohling v. Luitjens, 32 Ill., 23; Kidder v. Aholtz, 36 Ill., 478;
Fergus v. Tinkham, 38 Ill., 407; Lloyd v. Karnes, 45 Ill., 62; Carmichael v.
Reed, 45 Ill., 108; Hall v. Towne, 45 Ill., 493; Hughes v. Washington, 65
Ill., 245; M'Intosh v. Saunders, 68 Ill., 128; People v. Williams, 91 Ill.,
87; Kellogg v. Moore, 97 Ill., 282; Bonnell v. Lewis, 3 Bradw., 283; Norton v.
Joy, 6 Bradw., 406; Slocum v. Slocum, 9 Bradw., 142.
(1) See Stat., l849, Feb. 12, L., 1849, p. 133; R. S., 1874, p. 494, § 38;
Cothran's Stat., ch. 51, § 38. Followed in Ward v. Owens, 12 Ill., 283. The
testimony must be reduced to writing and appear of record, M'Clay v. Norris, 4
Gilm., 370; Pankey v. Raum, 51 Ill., 88; M'Intosh v. Saunders, 68 Ill., 128.
It may be stated in the decree, in a bill of exceptions, in a certificate by
the chancellor, or, in a master's report, M'Intosh v. Saunders, 68 Ill., 128;
and it is enough if the facts proved be stated, without giving a minute detail
of the answers etc. of the witness on the stand, Moore v. School Trustees, 19
Ill., 83; James v. Bushnell, 28 Ill., 158; Walker v. Carey, 53 Ill., 470. All
the proceedings in chancery are either in writing or required to be reduced to
writing, Ferris v. M'Clure, 40 Ill., 99. An appellate court must look to the
evidence certified in the record. If that fails to sustain the decree no
inference can be indulged that the chancellor heard other evidence, Brooks v.
Martin, 64 Ill., 389; ex. gr., where the issue joined demands full proof, as
of an alleged indebtedness under a mortgage, the absence of the evidence from
the record is not to be supplied by presumption, Ward v. Owens, 12 Ill., 283;
Wilson v. Kinney, 14 Ill., 27; Nichols v. Thornton, 16 Ill., 113; Stacey v.
Randall, 17 Ill., 467; Pankey v. Raum, 51 Ill., 88; Thomas v. Adams, 59 Ill.,
(2) Must be preserved in the record, by reducing it to writing, by a master or
some one else, under direction of the court, Nichols v. Thornton, 16 Ill.,
113; Waugh v. Robbins, 33 Ill., 181; Mason v. Bair, 33 Ill., 194; Eaton v.
Saunders, 43 Ill., 435; Eaton v. Warren, 43 Ill., 437; Quigley v. Roberts, 44
Ill., 503; Wilhite v. Pearce, 47 Ill., 413.
(3) Evidence in depositions on file are a part of the record in a chancery
cause, without certificate of the judge for that purpose. The same rule
prevails as to exhibits made part of the bill or answer and filed therewith
and the court will presume, on review, they were considered on the hearing. As
to the other evidence, to sustain the decree, it must be preserved under the
hand and seal of the chancellor who heard the cause, or in the decree itself.
When not so preserved no presumption will be indulged that it was heard, Moss
v. M'Call. 75 Ill., 190. It may be preserved by "bill of exceptions, but,
strictly speaking, such a bill has no place in chancery, Ferris v. M'Clure, 40
Ill., 99. In Smith v. Newland, 40 Ill., 100, the court explained itself merely
to have mentioned bills of exceptions as one mode by which oral testimony may
be preserved, without in tending to intimate such bills are to be introduced
into chancery practice for any other purpose or with a view of alleging
exceptions to the rulings of the chancellor; a certificate of evidence, signed
by the chancellor is, as matter of form, preferable to a bill of exceptions;
it is more in harmony with chancery practice, Smith Newland, 40 Ill., 100;
Ferris v. M'Clure, 40 Ill., 99. Such certificate may be as to the whole
evidence and made akin to a bill of exceptions as to testimony introduced
orally, Holbridge v. Bailey, 4 Scam., 124. A recital of the facts proved in
the decree is sufficient preservation of the evidence, Martin v. Hargardine,
46 Ill., 322; Walker v. Carey, 53 Ill., 470, and, since the passage of the act
of 1849, it has been the settled practice so to preserve the evidence or by
master's report, Cooley v. Scarlett, 38 Ill., 316. Such recitals can not be
questioned on error or appeal more than can a bill of exceptions in a case at
common law, and unless in such case, all the evidence heard on the hearing be
preserved and brought up, the finding will be presumed supported by evidence
heard and not preserved, Allen v. LeMoyne, 102 Ill., 25; if a party be not
satisfied with the finding it is his duty to insist on a certificate of
evidence or a bill of exceptions, Walker v. Carey 53 Ill., 470; Walker v. Abt,
83 Ill., 226; Sheen v. Hogan, 86 Ill., 16; Dalton v. Roach, 89 Ill., 85; see
Corbus v. Teed 69 Ill., 205; Thomas v. Adams, 59 Ill., 223.
(4) See Morgan v. Smith, ante, p. 194 and note 4.
(5) R. S., 1845, p. 96, § 32; R. S., 1874 p. 201, § 28; Cothran's Stat., ch.
22, § 28.
Reports of Cases Argued and Determined in the Supreme Court of the State of
Illinois, from November Term, 1849, to June Term, 1850, Both Inclusive. By
Ebenezer Peck. Volume XI. Annotated by Henry Binmore, of the Chicago Bar.
CHICAGO: CALLAGHAN & CO. 1886.