Himrod v. Gilman
| Decision Date | 26 October 1893 |
| Citation | 35 N.E. 373,147 Ill. 293 |
| Parties | HIMROD v. GILMAN et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to appellate court, first district.
Bill by Kirk Himrod against George D. Gilman and others to foreclose a trust deed. James Bolton intervened and filed a cross bill praying that foreclosure be had in his favor instead of in favor of complainant. There was a decree in accordance with the prayer of the cross bill, which was affirmed by the appellate court. Complainant brings error. Affirmed.Miller & Starr, for plaintiff in error.
N. M. Jones, for defendants in error.
The other facts fully appear in the following statement by SHOPE, J.:
One Frank E. Brady conveyed to George D. Gilman certain real estate subject to incumbrances, and Gilman executed a trust deed to William Laeb, dated September 15, 1888, securing the payment of two notes of $4,500 each, made by Gilman, and payable 18 months after date to his own order, and being part of the purchase price of the property conveyed by Brady. On October 2, 1888, Brady borrowed from Springer $3,500 on his own note for that sum, secured by the deposit with Springer of two notes, purporting to be the notes of Gilman, before mentioned, and also delivered the original trust deed securing the same, which Springer placed on record, and subsequently got back from the recorder. Three days later-October 5th-Brady exhibited to Bolton two notes of George D. Gilman for $4,500 each, purporting on their face to be secured by a trust deed to William Laeb, and applied for a loan of $5,000 thereon, representing that the trust deed was in the recorder's office for record. Bolton, finding from an abstract of title furnished that the title was in Gilman, and from Laeb, the trustee, that the trust deed had been made and recorded, loaned Brady $5,000, taking his note and an assignment of said two notes as collateral security therefor. The two notes deposited with Springer and the two with Bolton all purport on their face to be secured by the trust deed to Laeb, were alike in terms, and both sets answered the description in the trust deed. Subsequently, and before any of the notes were due, Springer, under a power in the note from Brady, sold the two notes deposited as collateral with him to plaintiff in error, Kirk Himrod, for value. The indebtedness having matured, Himrod, claiming to be the owner of said notes secured by said trust deed to Laeb, filed the original bill herein to foreclose the said trust deed, making Gilman, Laeb, Brady, and the owners of prior incumbrances parties defendant. Defendant in error James Bolton upon his petition was admitted to intervene, filed his answer and cross bill, in which it was alleged that the notes held by Himrod were not the notes secured by said trust deed, but that the notes held by him, Bolton, were the notes so secured, setting up that they were unpaid, and asking foreclosure in his favor. Gilman and other defendants, served, and not answering, were defaulted. Issues were joined, and the cause referred to the master to take proofs. In addition to the foregoing facts the master reported the testimony of experts who had made examination and tests, and who testified that the signature of George D. Gilman to the notes held by Himrod was not in the same handwriting as the signature of George D. Gilman to the trust deed, and that they were not written by the same person. The court found and decreed in accordance with the allegations and prayer of the cross bill, and the complainant in the original bill prosecuted a writ of error to the appellate court, where the decree of the circuit court was, upon error, affirmed.
SHOPE, J., (after stating the facts.)
The questions arising upon this record, and before us, relate solely to the controversy between the complainants in the original and cross bills, as to which is entitled to a foreclosure in his favor. The other portions of the decree are not questioned. Complainant in the cross bill introduced the evidence of experts, who from microscopical and other examinations testified that the signatures to the notes held by Himrod, complainant in the original bill, were not written by the same person who wrote the signature ‘George D. Gilman’ to the trust deed given to secure the notes of Gilman; and that the signature to the notes held by the cross complainant, Bolton, and the name of George D. Gilman, indorsed on the back thereof, were written by the same person who wrote the signature of George D. Gilman to the trust deed. It is insisted this evidence was incompetent-First, because there was no direct evidence that Gilman wrote his name to the trust deed; and, second, that genuineness or otherwise of the signature cannot be proved by comparison.
1. The trust deed was the foundation of the right of either party to a foreclosure. Each insisted upon its genuineness, and introduced it in evidence. There was nothing upon the face of the instrument to indicate that any person other than the grantor in the trust deed wrote the signature. The deed was properly acknowledged and admitted to record. It will be presumed, in the absence of anything showing the contrary, that the execution of the genuine notes and mortgage was contemporaneous, and, both being genuine, that the person who signed the one signed the other. They are parts of the same transaction, mutually refer to each other, and there is nothing upon their face to indicate that the signatures were not made at the same time. It is conceded that neither party was able to procure the testimony of Gilman or Brady. Moreover, as said by the appellate court: ‘Courts cannot in this country and this age fail to take notice of the fact that the majority of men can, and do as a usual thing, by their own hand write their names to the documents they execute.’ (44 Ill. App. 519.) It is possible, but not at all probable, that the same person other than Gilman may have written his signature to the deed, but, if this was so, the evidence renders it reasonably clear that the same hand wrote the signature to the notes also. The witnesses testify that the signatures to the Bolton notes and mortgage were written by the same hand; that it is a firm, easy hand, not regular, the flourishes quite awkward, but the writer shows ability...
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...or signatures admitted to be genuine are already in the case, comparison may be made by the jury, with or without experts. Himrod v. Gilman, 147 Ill. 293, 35 N. E. 373;Rogers v. Tyley, 144 Ill. 652, 32 N. E. 393;Bevan v. Atlanta Nat. Bank, 142 Ill. 302, 31 N. E. 679;Riggs v. Powell, 142 Ill......
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