Bay v. Williams

• Decision Date: 17 November 1884
• Citation: 112 Ill. 91,1 N.E. 340
• Parties: BAY v. WILLIAMS.
• Court: Illinois Supreme Court

112 Ill. 91

1 N.E. 340

BAY

v.WILLIAMS.

Supreme Court of Illinois.

Filed November 17, 1884.

Appeal from appellate court, First district.

SCHOLFIELD, C. J., and DICKEY and SHELDON, JJ., dissenting.

J. Woodbridge, for appellant.

Dent, Black & Cratty Bros., for appellee.

WALKER, J.

It appears from the record in this case that Mrs. Camelia J. Williams, on the eleventh day of March, 1873, sold to Newman & Sissons 40 acres of land lying several miles south of the city of Chicago, for the sum of $12,000, and after deducting the advanced payment, took their promissory notes, payable in installments. To secure the deferred payments they executed to Thomas Dent a trust deed on the property, containing the usual powers conferred by such instruments. Appellant, on the eighth day of September of the same year purchased the land of Newman & Sissons for the consideration named in their warranty deed, of $24,000. Their deed contained an express promise on the part of appellant to apy and discharge the debt secured by the trust deed on the land in favor of Mrs. Williams. The provision is in this language: ‘Which said notes, for principal and interest, said party (George P. Bay) expressly agrees to pay.’ Appellant afterwards, on the seventh day of October, 1878, applied to Sissons, and he, for the expressed consideration of one dollar and other sufficient considerations, released appellant from this obligation. Appellant also applied to Newman, who had asked to be discharged from his debts in bankruptcy, for a similar release, but he declined to give it. Newman subsequently obtained his dischargein bankruptcy. Mrs. Williams, on the fifth day of November, 1879, filed this bill to foreclose her mortgage, and, on a hearing on the twenty-seventh day of May, 1881, she recovered a decree of foreclosure. The master sold the land, and it was bid off by her at $12,525, which left $3,559.46 unpaid on the decree. Afterwards, on the twelfth of September, 1883, the court found that appellant had assumed to pay the debt secured by the trust deed, and thereby became personally liable for the deficiency, and decreed that an execution issue for the unpaid balance of the decree. He appealed to the appellate court for the First district, where, on a hearing, the decree of the lower court was affirmed, and the case comes to this court by another appeal.

The question presented for determination is whether the court below erred in rendering this supplemental decree awarding execution against appellant. It is first claimed that the evidence is not sufficient to establish the fact that appellant ever consented to or became bound by the clause in the deed from Newman & Sissons to him, and, in support of the proposition, the case of Thompson v. Dearborn, 107 Ill. 88, is invoked. In that case, which was a decree on an order pro confesso, the bill failed to allege that Thompson ever assented to or had any knowledge that Funk, the mortgagor, had made such a deed. In the absence of all proof showing that Thompson assented to the execution of the deed, or had ever ratified it in terms, or tacitly by receiving it, or in some other manner, it was held that the bill failed to show a liability,-that to fix the liability of such a grantee it must appear that he participated in its execution, or had knowledge that it had been made and assented to, or in some manner approved or ratified it; otherwise it would be in the power of the mortgagor, of his own motion, without the knowledge and without the assent of the grantee, to render any one liable to pay the mortgage debt by simply executing to him a deed containing such a clause and having it recorded in the proper office. No such question arises in this case, as appellant admits that he participated in the execution of the deed and received it from the grantors.

Appellant refers to decisions in other states to show that unless the mortgagee actually agrees to look to the grantee of the mortgagor as his debtor, he does not become liable. It appears that adjudged cases of the courts are not harmonious,-not even the courts in the same states, -and it may be added that the cases are not capable of being reconciled. There could, therefore, be no reason for the endeavor on our part to attempt to conform our decisions to those of other states, as there would still be a want of harmony, and when other decisions shall be made, would induce the effort for further change in our decisions. On the mere authority of adjudged case in other tribunals, we would have to vacillate to keep in line. We can see no necessity or reason for overruling our previous decisions, which are harmonious, and date almost from the organization of the court. In the recent case of Dean v. Walker, 107 Ill. 540, these questions were pressed upon our attention, and most of the authorities now referred to by appellant, with others, were carefully and deliberately considered, and we held adversely to the views of appellant now pressed on our attention, and the decision of that case must conclude their discussion in this case. The doctrines of that case are in accordance with the uniform decisions of this court, and we regard them as settled in this jurisdiction. We therefore decline to enter upon further discussion in this case. The elaborate argument of appellant has failed to convince us that our former decisions are not sound. It therefore would answer no beneficial purpose to review our decisions, and repeat arguments heretofore adduced in their support.

It is next urged that, admitting the doctrine to be correct, appellant was absolved from all liability by Sissons' release, and cases are cited to the effect that the mortgagor may release his grantee from his promise to pay the debt of the mortgagee at any time before such mortgagee brings suit to enforce the promise. The cases referred to proceed upon the grounds that the promise of the...