Herrington v. Mccollum

• Citation: 1874 WL 9016,73 Ill. 476
• Parties: NATHAN P. HERRINGTON et al.v.GEORGE MCCOLLUM.
• Decision Date: 30 September 1874
• Court: Supreme Court of Illinois

73 Ill. 476

1874 WL 9016 (Ill.)

NATHAN P. HERRINGTON et al.

v.GEORGE MCCOLLUM.

Supreme Court of Illinois.

September Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Peoria county; the Hon. JOSEPH W. COCHRAN, Judge, presiding.

Messrs. LACEY & WALLACE, and Messrs. DEARBORN & CAMPBELL, for the appellants.

Mr. B. F. PARKS, for the appellee.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

This case was here at the September term, 1869, and will be found reported under the name of McCullum v. Herrington et al. 50 Ill. 362, where a sufficient statement of the facts, as they then appeared, is given. After the case was remanded pursuant to the judgment of this court, N. P. Herrington, by amendment to his answer and cross-bill, set up that “A. B. Moore, then being the owner and holder of all three of the notes secured by the deed of trust, for a valuable consideration, contracted and agreed with the respondent to assign and transfer to him two of the said notes, and that the said trust notes should have a prior lien on the land secured by the said trust deed, to the third note, which the said Moore was to retain; that the said two notes so agreed to be assigned to the respondent should be entitled to payment out of the lands in the deed of trust mentioned, before the note which was to be retained by the said A. B. Moore.” He, also, further, therein alleged that the notes were transferred in conformity with this agreement; that the note retained by Moore was subsequently transferred to T. W. Herrington, and was then by him transferred to the complainant, both of whom received the note with full knowledge of, and subject to, the agreement between Moore and N. P. Herrington.

Additional evidence was heard, chiefly that of N. P. Herrington and the complainant, McCollum, who were not competent witnesses, under the statute, until after the previous hearing.

We are unable to see that the additional evidence is so decidedly in favor of the defendants, on this point, as to justify a different conclusion from that before announced. Like the original evidence, it is conflicting, and it does not present the case in a different light. The case, as made by the evidence for these defendants, even when considered by itself, is unlike that of Walker v. Dement, 42 Ill. 272. There, it was agreed that certain notes should have prior satisfaction out of the mort gage security, which was different from the order in which they would otherwise have been entitled to satisfaction. Here, the agreement claimed was, that the two notes first maturing were to be assigned to N. P. Herrington, and which would, without any agreement, on the authority of Vansant v. Allmon, 23 Ill. 30, Funk v. McReynolds, Admr. 33 Id. 481, and Gardner v. Diedrichs, 41 Id. 158, have been entitled to satisfaction out of the mortgage security according to the priority of their maturity. There is no evidence that the third, or last note, was to be satisfied before the second; but the whole tendency of the evidence is, that the first and second, and not the first and third notes, as they were assigned, were to have been assigned by Moore to N. P. Herrington, thus presenting the single inquiry, is the evidence sufficient to authorize the correction of this alleged mistake? What was before said as to the effect of the evidence in that respect, needs no amplification.

Another point argued, affecting the original defendants, is, that the complainant's bill was dismissed in 1863, for want of answer to the defendants' cross-bill, and the case was reinstated on the docket in 1865, without notice to them. This objection has been waived, and can not now be insisted on.

The record shows, at the March term, 1865, leave was given complainant's solicitor until the first day of the following June to answer the defendants' cross-bill. At the October term, 1865, the complainant in the cross-bill appeared, and took a decree pro confesso against the defendant in the cross-bill. At the same term, on the motion of the defendant in the cross-bill, this decree was set aside, and his answer filed. On the 9th of November, 1865, defendant N. P. Herrington filed his replication to the answer to the cross-bill. At the June term, 1866, the defendant N. P. Herrington, by his attorney, moved the court for leave to make his co-defendant, Blanchard, a witness, and, at a subsequent day of the same term, he moved to suppress certain depositions.

At the November term, 1866, “the parties in the suit appeared,” and decree was rendered in favor of the defendants. From that decree the first appeal was taken to this court, where the defendants were represented by counsel.

The record fails, entirely, to show that the objection now made was urged until after the cause was remanded.

The court, unquestionably, had jurisdiction of the subject matter of litigation; and it has never been questioned that parties may so far control jurisdiction over their own persons, in such a case, as to confer upon the court the right to proceed, by voluntarily entering an appearance. The defendants, to avail of the right to question the jurisdiction of the court when the case was reinstated, should either have not appeared at all, or limited their appearance to the objection against the jurisdiction of the court.

The amended answers and cross-bill, filed subsequent to the remanding of the cause, disclosed that, on the 25th day of April, 1863, N. P. Herrington sold the property which he had purchased at the trustee's sale, to John F. Havighorst, and conveyed the same to him by warranty deed, and that, on the 26th day of January, 1864, Havighorst sold the same property to John H. Kramer, and conveyed to him by warranty deed.

Complainant, thereupon, amended his bill, noticing these conveyances, charging that Havighorst and Kramer were purchasers, pending the litigation, and that they had both actual and constructive notice of his rights, and praying that they be made defendants, etc.

Separate answers were filed by these defendants, each therein averring that he had purchased for a full valuable consideration, paid at the time for the property--that of Havighorst being $3200 and that of Kramer $3600--without any notice, actual or constructive, of the rights claimed by the complainant.

The court below held that they were purchasers with notice, and decreed accordingly. The examination we have made of the evidence preserved in the record, has led us to a different conclusion.

Havighorst swears that he purchased the property and paid the consideration therefor, $3200, in good faith; that before purchasing he examined the records as far as he could, and employed counsel to aid him therein, and became satisfied everything was right; that he took immediate possession of the land after his purchase, paid the taxes thereon and received the rents thereof until he sold to Kramer. When he purchased, N. P. Herrington was in possession. When he examined the records, he did not find anything, except that there had been a suit--probably the same suit as the present--which had been dismissed, and that he did not see anything on the docket until two years afterwards, although he had frequent occasion to examine...