Brown v. Schintz

• Decision Date: 16 June 1903
• Citation: 67 N.E. 767,203 Ill. 136
• Parties: BROWN et al. v. SCHINTZ.
• Court: Illinois Supreme Court

203 Ill. 136

67 N.E. 767

BROWN et al.

v.SCHINTZ.

Supreme Court of Illinois.

June 16, 1903.

Appeal from Superior Court, Cook County; Jonas Hutchinson, Judge.

Ejectment by Theodore H. Schintz, trustee, for the use of Jacob Huber, against Thomas Brown and others. From a judgment for plaintiff, defendants appeal. Affirmed.Albion Cate, for appellants.

Ives, Mason & Wyman, for appellee.

This was an action of ejectment by Theodore H. Schintz, trustee, for the use of Jacob Huber, against appellants and their tenants. The action was based upon a trust deed securing a note by Thomas Brown of $2,500, of even date, and conveying the premises described in the declaration. Upon the tiral, plaintiff (appellee) offered in evidence the principal and interest note of Thomas Brown, and trust deed securing the same; also a certified copy of a decree entered in the case of Wheatman v. Brown, a chancery proceeding in the circuit court of Cook county, on January 15, 1900, wherein Thomas Brown and wife, Schintz, trustee, and Jacob Huber, were parties, and in which decree it was adjudged that there was due Huber, secured by this trust deed, $1,069.73; and also offered in evidence the original bill, the answer of the Browns, and the answer of Jacob Huber and Nicholas J. Mann in said proceeding, to show that the court had jurisdiction of the parties. Plaintiff also offered in evidence an affidavit of ‘common source,’ in which it was stated that plaintiff and defendants Vesley and Dobbs claim title through a common source, to wit, through the defendant Thomas Brown. After introducing the foregoing evidence, plaintiff rested. Thereupon defendants offered to prove by the defendant Brown a total failure of consideration for the note and trust deed, and that no demand for possession had been made, both of which offers the court refused, to which defendants excepted. Upon the written motion of plaintiff the court then instructed the jury to return a verdict for plaintiff, which was done, and the motion of defendatns for a new trial was overruled, and judgment entered on the verdict, from which this appeal is prosecuted.

RICKS, J. (after stating the facts).

The case of Wheatman v. Brown, mentioned in the statement of this case, is the same case that was taken on error to the Appellate Court and there entitled Brown v. Schintz, reported in 98 Ill. App. 452, and afterwards brought to this court. 202 Ill. 509, 67 N. E. 172. Brown was the owner of the premises in question, and, desiring to build upon them, gave two trust deeds to Schintz, as trustee-one to secure a principal note of $2,500, with certain interest notes, and the other to secure a principal note of $700. The notes were made payable to Brown's order, and he assigned one of them to Jacob Huber, and the other to Nicholas J. Mann. Schintz was to advance the money as the building progressed, and did give to Brown two checks, one for $1,075 and the other for $125. These checks Brown turned over to his contractors and subcontractors. The checks were made and delivered to Brown on Friday, July 16, 1897, and were payable at the Merchants' Loan & Trust Company, in Chicago. They were not presented until the following Monday, when the bank had been notified that Schintz on that day had made an assignment. The main defense in the case was that Schintz, the plaintiff, had never paid anything upon the notes and the trust deeds, and that, the consideration having failed, he was not entitled to the possession of the premises-in other words, that, no money having been paid, there was no breach of the condition of the trust deed.

In the chancery suit of Wheatman v. Brown the court had found that there was due Huber, on the note held by him, $1,069.73, and to prove the breach a certified copy of this decree was put in evidence, as also the original notes. It is urged on this appeal that it was error to admit the decree in evidence, because a writ of error had been prosecuted from that decree, and a supersedeas granted. The decree was between the same parties, related to the same subject-matter in controversy, and, unless vacated by the writ of error, was competent evidence to prove that there was a breach of the conditions of the trust deed by failure to pay the money found due by the decree. Hernandez v. Drake, 81 Ill. 34;Gartside v. Outley, 58 Ill. 210, 11 Am. Rep. 59;Knobloch v. Mueller, 123 Ill. 554, 17 N. E. 696;Roby v. Calumet & Chicago Canal & Dock Co., 165 Ill. 277, 46 N. E. 214;Norris v. Ile, 152 Ill. 190, 38 N. E. 762,43 Am. St. Rep. 233. The writ of error could not have any greater or broader effect than an appeal would have had, and we have held in a number of cases that an appeal does not destroy the lien of the judgment, or affect the judgment, but simply suspends it, and prevents its being carried into execution until the final disposition of the case. Curtis v. Root, 28 Ill. 367;Ball v. Chadwick, 46 Ill. 28;Moore v. Williams, 132 Ill. 589, 24 N. E. 619,22 Am. St. Rep. 563. In the case of Randles v. Randles, 67 Ind. 434, practically the exact question here presented was well considered, and it was there held that an appeal only stayed the execution of the judgment for costs in a partition suit, and that the judgment of partition stood unaffected by the appeal until it was reversed, and that ejectment, based on the partition decree, by one of the parties, to whom certain of the lands had been allotted in the partition proceeding, could be maintained, notwithstanding an appeal had been prosecuted. We think there was no error in the admission of the copy of the decree.

Some contention is made about the admission of the original notes in evidence. It is urged that they were merged in the decree, and that it was also shown that a judgment by confession had been taken on the notes. While it is true that we have held in a number of cases that there is a merger of the notes in the judgment or decree upon them, still that does not destroy them as independent matters of evidence, when they become material in any procedure. The most that we have held in regard to the merger is that, having been...