Bayard v. Mcgraw

• Decision Date: 30 April 1878
• Citation: 1 Ill.App. 134,1 Bradw. 134
• Parties: ELIZABETH McEVERS BAYARD ET AL.v.JAMES McGRAW ET AL.
• Court: United States Appellate Court of Illinois

1 Ill.App. 134

1 Bradw. 134

ELIZABETH McEVERS BAYARD ET AL.

v.JAMES McGRAW ET AL.

Appellate Court of Illinois, First District.

April Term, 1878.

OPINION TEXT STARTS HERE

Error to the Circuit Court of Cook county; the Hon. E. S. Williams, Judge, presiding.

Mr. John M. Gartside, for plaintiffs in error; that a party cannot make one case by his pleading, and obtain relief on another made by the proof, cited Tracey et al. v. Rogers, 69 Ill. 662.

As to waiver of lien by taking land: Clark v. Moore, 64 Ill. 273; Brady v. Anderson, 24 Ill. 112; Kinzey v. Thomas, 28 Ill. 502.

By receiving and negotiating the note of the debtor: Clement v. Newton, 78 Ill. 427; Teaz v. Christie, 2 E. D. Smith, 631; Scott v. Ward, 4 Green (Iowa), 112; Hawley v. Ward, 4 Green (Iowa), 39; Green v. Fox, 7 Allen, 88; Grant v. Strong, 18 Wall. 623; Phillips on Mech. Liens, § 281; Scott v. Robinson, 21 Ark. 202; Doub v. Barms, 4 Gill. 1; Gorman v. Sayner, 22 Mo. 137.

That defendants in errror have lost their right to a lien by their own laches: Drew v. Kimball, 43 N. H. 282; Bigelow on Estoppel, 453; 3 Washburn on Real Prop. 78; Quirk v. Thomas, 6 Mich. 78; Mitchell v. Reid, 7 Cal. 204.

Upon the question of Bayard's right to be subrogated to the rights of those creditors whose claims he had paid: Jacques et al. v. Falkney et al. 64 Ill. 87; Billings v. Sprague, 49 Ill. 509; City Nat. Bank v. Dudgeon, 65 Ill. 12.

The mode of charging the premises, adopted in the case, is fatal to the decree: Croskey et al. v. N. W. M. Co. 48 Ill. 481; Smith v. Moore, 26 Ill. 393; N. Pres. Ch. v. Jevne et al. 32 Ill. 214; Howett v. Shelby, 54 Ill. 151; Tracey et al. v. Rogers, 69 Ill. 662; Lunt v. Stephens, 75 Ill. 507.

Suit was not commenced against Bayard the cestui que trust within the time prescribed by the statute. Where a party is made defendant by amendment subsequent to the filing of the petition, suit is not commenced as against such party until he is so made defendant: Dumply v. Riddle, 1 Chicago Law J. 230; Miller v. McIntyre, 6 Pet. 61; Crowl v. Neagle, 1 Chicago Law J. 377.

The rights of a person not made a party to a suit, are not affected by any proceedings under it: Broom v. Goolsby, 34 Miss. 437; Gormen v. Judge, etc. 27 Mich. 140; Kelly v. Chapman, 13 Ill. 530; Williams v. Chapman, 17 Ill. 422; Lomax v. Dore, 45 Ill. 379; Angell on Liens, § 330; Story's Eq. Pl. § 904.

A cestui que trust is a necessary party to a proceeding to enforce a mechanic's lien: Phillips on Mec. Liens, § 395; Hauser v. Hoffman, 32 Mo. 334; Christien v. Manderson, 2 Penn. 363; Raymond v. Ewing et al. 26 Ill. 329; Williams v. Chapman, 17 Ill. 423; Kimball et al. v. Cook, 1 Gilm. 423; Kelly et al. v. Chapman, 13 Ill. 530; Steigleman v. McBride, 17 Ill. 300; Lomax v. Dore, 45 Ill. 379; Greenleaf v. Beebe, 80 Ill. 520.

The cestui que trust cannot be bound by the decree by reason of his trustee being made a party defendant: Hall et al. v. Sullivan Railway, Redfield on Railways, 465; Calvert on Parties, 212; Allen v. Knight, 5 Hare, 272; Kirk v. Clark, Eng. Ch. Pr. 275; Calverly v. Phelp, 6 Madd. 144; Hamm v. Stevens, 1 Vern. 110; Adams v. St. Leger, 1 Ball & B. 184; Douglass v. Horsfall, 2 Sim. & St. 185; Wilson v. City Bank, 3 Sumner, 428; Green v. Sisson, 2 Curtis, 176; Stimpson v. Rogers, 4 Blatch. 337; Com'rs etc. v. Thayer, 4 Otto, 645; Curtis et al. v. Leavitt, 15 N. Y. 194.

Upon the question of lis pendens: 3 Sugden on Vendors, 322; Freeman on Judgments, § 195; Anon, 1 Verm. 318; Murray v. Ballou, 1 Johns. Ch. 576; Hayden v. Bachlin, 9 Paige Ch. 513; Hemmington v. Hemergton, 27 Mo. 560; Allen v. Mendiville, 26 Miss. 397; Leich v. Wells, 48 N. Y. 611; Powell v. Wright, 7 Beavan; Grant v. Bennett, 8 Chicago L. N. 379.

Messrs. Scoville & Bayley, for defendants in error; that taking and negotiating the note of the debtor is not a waiver of the lien, cited Phillips on Mec. Lien, § 276; Van Court v. Bushnell, 21 Ill. 627; Butts v. Cuthbertson, 6 Geo. 166; Greene v. Ely, 2 Greene (Iowa) 508; Graham v. Colt, 4 B. Mon. 61; Phillips on Mec. Lien, 394; Muir v. Cross, 10 B. Mon. 277; Sweep v. James, 2 R. I. 270; Morton v. Austin, 12 Cush. 389; Edwards v. Derrickson, 4 Dutch. 39.

That receiving and recording the deed did not constitute a waiver of the lien: Bank of Columbia v. Haynes, 1 Pet. 455; Dorr v. Fisher, 1 Cush. 271; Rutter v. Blake, 2 Hare & J. 350; Cross v. Gardner, 1 Show. 68; Chambers v. Griffith, 1 Esp. 150; Judson v. Wass, 11 Johns. 525; Starkie's Ev. 645.

PLEASANTS, J.

Defendants in error, as partners, filed their petition for a mechanic's lien, setting forth a verbal contract made by them in July, 1875, with Samuel S. Hayes, the owner of the premises, whereby they were to make the necessary excavations, build the foundation and basement walls, lay the brick and set the cut stone in the superstructure, and furnish all the material and do all the work for the lathing and plastering of six dwelling houses in one block on sub-lots described, at prices specified; and also to furnish the material and do the work for the lathing and plastering of two other and separate blocks, of seven and eight houses, respectively, at the same prices fixed for the like in the six first mentioned. Hayes was to furnish the brick to be used in said six, and receive credit therefor at the rate of five and a-half dollars per thousand, and to make payments, on account, from time to time as the work progressed. Upon its completion a settlement was to be had, the total cost ascertained, and the balance found due then paid. It was further agreed that petitioners should receive in payment, to the extent of one-third of such total cost, a conveyance from said Hayes of three lots described, with good title and free from incumbrance, at the agreed price of nine thousand dollars, giving back for the excess their note at three years, with interest at nine per cent. per annum, secured by a trust deed of the same premises. The work was to be commenced at once, prosecuted with reasonable diligence, and completed at the latest before the first day of January, 1876. Answers and replications thereto were filed and proofs taken, from which it appears that petitioners promptly entered upon, and energetically proceeded with the work, and that early in October they applied to Hayes for two thousand dollars on account, but not having the money, he gave them his note at sixty days, and afterwards for convenience of negotiation, substituted four of five hundred dollars each, payable to McGraw, which they transferred to creditors of whom they had purchased materials. These he failed to pay, except the sum of one hundred dollars on one; but he took up the other three with renewal notes in the same form, delivered to the holders, which were finally put into judgments against him--one in the name of the holder, and two in that of McGraw. In November Hayes opened negotiations with Robert Bayard, of New Jersey, for the loan of a large sum of money upon the security of the premises in question, and on the first day of December, in anticipation of its consummation, executed to George W. Smith three trust deeds of the three blocks of houses aforesaid, respectively, to secure the payment of his notes, as many in number as there were lots conveyed, and each lot as security for a specified note--amounting in the aggregate to the sum of $50,500, payable to his own order at five years, with interest at eight per centum per annum, payable semi-annually upon coupons therefor attached. This deed was duly recorded on the third day of December, and with the notes, was afterwards delivered to said Bayard, who thereupon remitted the amount to said Smith to be applied, first, to the extinguishment of existing liens, amounting to some $40,000, and the residue paid over to Hayes. It was all so applied and paid over by the first day of April, 1876.

Meanwhile, the work contracted to be done by the petitioners was completed on the first day of December, and a few days thereafter a settlement was had, by which the total cost was found to be $6,000.00. Petitioners then agreed to take $3,000.00, one half instead of one third as originally agreed, in a credit upon the three lots, and shortly thereafter Hayes and his wife executed their deed of said lots with full covenants of warranty, and they executed their trust deeds of the same premises to David E. K. Stewart, to secure the payment of their note to Hayes for $6,000.00 at three years, with interest at nine per centum per annum. These papers all bore date of December 1, 1875, but the deed to petitioners was not acknowledged until the 10th, nor recorded until the 18th of January, 1876. The trust deed to Stewart was acknowledged on the day last mentioned, and recorded on the 19th, and the note was left with Runyan in escrow, to be delivered to Hayes upon his removing the liens then incumbering the premises. This he then and repeatedly afterwards promised to do in a few days, but failing to fulfil, the petitioners on the 25th of May, 1876, tendered to him a reconveyance of the property by their deed of special warranty, and thereupon on the next day filed this petition, making parties defendant the said Hayes and his wife, the several tenants of the premises, David E. K. Stewart and George W. Smith, and long afterwards, by amendment, the said Robert Bayard.

On final hearing by the court upon the pleadings and the Master's report of proofs taken, a decree was entered in favor of the petitioners for the full amount claimed, and declaring it the precedent lien. The widow of said Bayard, who is also his executrix and devisee, and George W. Smith, his trustee, bring the record here and assign errors.

And, first, it is insisted that by accepting the deed of the three lots, with full covenants of warranty, petitioners took additional security and thereby waived their lien. But we have seen that by the agreement made before the lien attached, they were to accept it, and that in fact they did accept...