Bonnell v. Holt

• Decision Date: 30 June 1878
• Parties: DAVID T. BONNELLv.ALLEN HOLT et al.
• Court: Illinois Supreme Court

89 Ill. 71

1878 WL 9965 (Ill.)

DAVID T. BONNELL

v.ALLEN HOLT et al.

Supreme Court of Illinois.

June Term, 1878.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Jersey county; the Hon. CYRUS EPLER, Judge, presiding.

The bill in chancery in this case, filed March 6, 1872, charges that on the first day of November, 1868, one James M. Osborne, then of Jersey county, in this State, sold to one Aquilla Reeves the land in the bill mentioned, for $340, taking from Reeves his two promissory notes, each for the sum of $170, the one payable on the 1st day of January, 1870, and the other on the 1st day of January, 1871, and giving to Reeves a bond for the conveyance of the land to him upon the payment of the notes; that Osborne assigned one of the notes, that last maturing, to David T. Bonnell, and removed from the State of Illinois to Missouri, in which last State he died intestate, in the month of February, 1870; that Reeves never paid anything on the notes, and abandoned the premises, and had died insolvent. The bill further shows that the complainant Allen Holt, as public administrator of Andrew county, in the State of Missouri, administered upon the estate of Osborne, and, as such administrator, he filed this bill in the circuit court of Jersey county, in this State, to subject the land to the payment of the note first falling due, and which Osborne continued to hold at the time of his death. Bonnell is made a party to the bill, and it admits that he is the holder of the second note, falling due January 1, 1871, but claims that complainant, as administrator, is entitled to a prior lien upon the land for the satisfaction of the note which first fell due, on January 1, 1870. Bonnell answered, and filed a cross-bill March 24, 1874, setting up the assignment to him by Osborne in his lifetime, of the second note last falling due, by indorsement thereon under his hand, the continued entire insolvency of Reeves, the maker of the notes, ever since the making of them, whereby the liability of Osborne as indorser became fixed, and asking for affirmative relief in the payment of his note first, out of the proceeds of the sale of the land, and for the sale of the land if the note should not be paid by a day to be fixed. The answer of Holt, the administrator, to the cross-bill, sets up that the estate of Osborne had been duly administered upon in the State of Missouri, and the time for the presentation of claims against it there had expired long since; that the estate was solvent, paying all the indebtedness presented against it, and having a surplus to distribute to the heirs. By the original bill and cross-bill, the heirs respectively of both Osborne and Reeves were made parties thereto, but the heirs of Osborne were not served with process; their appearance was entered by an attorney, and being infants a guardian ad litem was appointed for them, but he filed no answer for them.

Upon final hearing, on April 4, 1877, and upon proofs taken, the court below dismissed the cross-bill, and ordered the sale of the land, and the payment, out of the proceeds of the sale, of the note held by the complainant in the original bill. Bonnell appealed from the decree.

Messrs. WOODSON & WITHERS, for the appellant.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

It is supposed by appellees' counsel that appellant's only ground for any claim of relief is that of a vendor's lien, as being the holder of one of the two notes given for the purchase money of the land, and that under the decisions of this court, an assignee of such a note is not entitled to the benefit of such a lien. As this court has frequently decided that a vendor's lien is not assignable, we do not see how, under those decisions, appellant can assert any claim here, on the ground of such a lien. His title to relief, if any, must be rested on some different principle. It is clear, from the pleadings and proofs, that Reeves, the maker of the note which appellant holds by indorsement from Osborne, was, from the time of the making of the note, ever afterward, utterly insolvent, so that the institution of a suit against him would have been unavailing; wherefore, under our statute, the liability of Osborne as indorser of the note became fixed.

Appellant has, then, a valid claim for the amount of the note, against the estate of Osborne.

Holt, the foreign administrator of Osborne, appointed in the State of Missouri, the domicil of the deceased, comes into this State to collect, by suit, assets of the estate of Osborne. By the doctrine of the common law he could not have brought such suit in this State, in his official capacity, but, in order to maintain such suit here, he must have obtained new letters of administration in this State, and the new administration here would be treated as...