Ilett v. Collins

• Decision Date: 12 May 1882
• Parties: WILLIAM ILETT et al.v.THOMAS F. COLLINS et al.
• Court: Illinois Supreme Court

103 Ill. 74

1882 WL 10288 (Ill.)

WILLIAM ILETT et al.

v.THOMAS F. COLLINS et al.

Supreme Court of Illinois.

Filed at Ottawa May 12, 1882.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Appellate Court for the First District;-- heard in that court on appeal from the Superior Court of Cook county; the Hon. JOHN A. JAMESON, Judge, presiding.

Mr. MORTON CULVER, for the plaintiffs in error:

We claim the demurrer to the first bill ought not to have been sustained. The bill alleges fraud on the part of the vendee, and although this court has not passed directly on this point, still it intimates that a lien would be good. Conover v. Warren, 1 Gilm. 502; Manly v. Slason, 21 Vt. 277; 2 Washburn on Real Prop. 91, note.

The amended bill, we think, comes directly within the rule laid down in this State, and therefore sustaining the demurrer thereto was error. Dyer v. Martin, 4 Scam. 146; Conover v. Warren, 1 Gilm. 498; Trustees, etc. v. Wright, 11 Id. 603; Same v. Same, 12 Id. 432; Cowl v. Varnum, 37 Id. 181; Wilson v. Lyon, 51 Id. 166; Carpenter v. Mitchell, 54 Id. 126.

The court erred in allowing the affidavit of Patrick McHugh to be read, on motion to set aside the order of dismissal, in the face of one of its own rules that no affidavit should be read unless submitted to the opposite party; and secondly, because it is a vicious practice. Mendell v. Kimball, 85 Ill. 582.

If the bill, as amended, is good, then the court erred; and if the bill, as amended, is bad in some special point, advantage can only be taken of it, as a general rule, by special demurrer.

Mr. P. MCHUGH, for the defendants in error:

There is no conflict of authority that the vendor's lien is gone, when independent security, either of property or the responsibility of a third person, is taken by the vendor. Conover v. Warren et al. 1 Gilm. 498; Cowl v. Varnum, 37 Ill. 181; Boynton v. Champlin, 42 Id. 57; Kirkham v. Boston, 67 Id. 599; Andrus v. Coleman, 82 Id. 26.

The staleness of the alleged lien renders the bill obnoxious to a demurrer. The vendor's lien ceases when the debt, on account of which the lien is claimed, is barred by the statute. Jones on Mortgages, sec. 218; Borst v. Corey, 15 N. Y. 505; Trotters v. Erwin, 27 Miss. 772; 2 Sugden on Vendors, 391, note 7.

Where it appears on the face of the bill (as in this suit) that the cause of action set out is barred by the Statute of Limitations, the defendant may take advantage of the bar by demurrer. Story's Eq. Pl. secs. 484, 503, 571; Hoare v. Peck, 6 Simons, 51; Foster v. Hudgson, 19 Ves. 180; Wisner v. Barnett et al. 4 Wash. 631; Caldwell v. Montgomery, 8 Ga. 108.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

The bill in this case was brought by William Ilett and Edward Hartwell, in the Superior Court, against Thomas F. Collins, Emelie F. Collins, and others, to establish a vendor's lien, and subject the property to the payment of the purchase money alleged to be still due and unpaid. A demurrer to the original and amended bills was sustained, and the bills dismissed. That decree, on the appeal of complainants, was affirmed in the Appellate Court for the First District, and now complainants bring the case to this court on error.

It is alleged in the original bill, that in June, 1873, complainants, in pursuance with a verbal agreement made with Thomas F. Collins, conveyed the premises to Emelie F. Collins, wife of Thomas F. Collins, in consideration of the sum of $10,000, to be paid cash in hand; but at that time Thomas F. Collins represented he did not have the cash, and that he would pay the same within ninety days, and further represented he had gas stock of the par value of $10,000, and that he would and did deposit with complainants bonds for the same as collateral security for the purchase money of the property conveyed to his wife, and that after protracted litigation they had realized about $2000 on the gas stock, and that the balance of the purchase money remained unpaid. The prayer of the bill is, that complainants may have a vendor's lien upon the property for the sum due them, and in default of payment of the amount that should be found due, that the premises should be sold in the usual mode of proceeding in such cases.

In sustaining the demurrer to the original bill there was no error. The rule of law is definitely settled, in this State, that where the vendor, on the sale of real estate, takes collateral or other security for the purchase money, it will be regarded as a waiver of any lien for the same on the property itself. Kirkham v. Boston, 67 Ill. 599, and cases there cited. It is apparent, from the allegations of the bill, that complainants relied on the bonds for gas...