Pike County IL Archives Court.....White, V Morrison 1849
************************************************
Copyright.  All rights reserved.
http://www.usgwarch.org/copyright.htm
http://www.usgwarch.org/il/ilfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 22, 2008, 8:50 am

Source: Reports Of Cases Illinois
Written: 1849

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 
record.(2)

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 
correspond.(4)

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 
my deed.
"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 
Gilman, 187.

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.

Decree reversed.

----------
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., 
233.

(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.

Additional Comments:
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.

File at: http://files.usgwarchives.net/il/pike/court/white85gwl.txt

This file has been created by a form at http://www.genrecords.org/ilfiles/

File size: 20.4 Kb