Leake v. Brown

• Decision Date: 30 April 1867
• Citation: 43 Ill. 372,1867 WL 5045
• Parties: JOHN LEAKEv.GRACE BROWN.
• Court: Illinois Supreme Court

43 Ill. 372

1867 WL 5045 (Ill.)

JOHN LEAKE

v.GRACE BROWN.

Supreme Court of Illinois.

April Term, 1867.

WRIT OF ERROR to the Circuit Court of Lee county; the Hon. W. W. HEATON, Judge, presiding.

The facts in this case, are fully stated in the opinion.

Mr. EMERY A. STORRS, for the plaintiff in error.

Mr. B. H. TRUESDELL, for the defendant in error. Mr. JUSTICE BREESE delivered the opinion of the Court:

This was an action of indebitatus assumpsit, brought by Grace Brown against John Leake, to the Circuit Court of Lee county, for an interest in certain lands sold and conveyed by the plaintiff to the defendant at his instance and request.

The general issue was pleaded and three special pleas, to which there was a demurrer, which the court sustained. We may remark here, these special pleas should have been stricken from the files on motion, or by the court sua sponte, as they had nothing to do with the case made by the declaration.

A trial was had on the general issue, non assumpsit, and a verdict for the plaintiff for six hundred and forty-nine dollars and ninety cents in damages. A motion for a new trial was overruled and judgment entered on the verdict.

To reverse this judgment the record is brought here by writ of error and various errors assigned.

The points made by plaintiff in error are, that, as the deed for the land was made to plaintiff in error by several persons joining therein, there can be no recovery by one of the grantors of his or her aliquot part of the purchase money not paid by the grantee.

The record shows, that the land sold to plaintiff in error was held by several persons with different interests, and the amount in suit was a portion of the money coming to the defendant in error for her interest therein. The interests of the grantors being several, they are entitled to bring separate suits for the portion coming to each one of them if withheld. The money was handed to Brown, the justice of the peace who took the acknowledgment of the deed, on the part of three of the grantors, by the plaintiff in error, as the aggregate sum due for the land, and it was paid over by Brown in the presence of plaintiff in the proportions to which each was entitled. The interest of defendant in error in the land was a separate, distinct legal interest, and she was therefore capable of bringing this action and of maintaining it. 1 Ch. Pl. 2. Among the funds so handed to Brown, and handed by him to the defendant in error as her share of the purchase money, was a certificate of deposit of six hundred dollars in the banking-house of E. B. Stiles, payable to the order of plaintiff in error, and dated October 8, 1864.

On this certificate, thus passed over to the defendant in error, the plaintiff in error makes his second point, which is, that the receipt of this certificate as a part of the purchase money, was prima facie payment to that extent, and that it devolved on the defendant in error, the duty of exercising due diligence in endeavoring to secure its payment; that by the receipt of the certificate indorsed by the payee, the relation of the parties become that of an assignee and assignor of commercial paper. Plaintiff in error insists, that it was upon the indorsement the parties relied, and in order to hold plaintiff in error as such indorser, it was incumbent on defendant in error, to use the diligence required by the statute.

Is it a fact, that the certificate was taken upon the faith of the indorsement? The witness, Brown, says that the certificate was indorsed before he proffered it to the defendant in error, and on some suggestion being made by one of the parties present, that Stiles' bank had stopped payment that day, and defendant in error being unwilling to receive it, the witness said to her, “Well, Leake is perfectly good for it if Stiles is not, as Leake had indorsed it.” The defendant in error then observed, “he was good for it whether Stiles was or not, that if Stiles did not pay it, he would.”

The indorsement had been previously made, so that, it is clear, the defendant in error did not receive the certificate upon the strength of the indorsement nor rely upon that, but upon the declaration of plaintiff in error, that he was good for it if Stiles was not, and that he would pay it if Stiles did not.

There does not appear to be any evidence, that the certificate was received on the faith of the indorsement, and, therefore, the relation of assignor and assignee, with its concomitants, did not exist.

The third point made by plaintiff in error is, that, in any view of the case, the failure to return, or offer to return, the certificate is fatal to a recovery by the defendant in error.

We accord fully in the doctrine of the case of Miller v. Lumsden et al., 16 Ill. 161, to which plaintiff in error refers to sustain this point, but do not think it is hostile to the claim set up. The court held, that it was an established rule of law, where a bill of exchange or a negotiable note is taken for a prior debt, that the party cannot recover upon the original consideration, unless the bill or note is produced and cancelled at the trial, or it appears, that it cannot be enforced by a third party. In that case, the bill was in the hands of a holder for value in an adjoining State, and was outstanding for collection against the maker of the note. If, then, a recovery had been allowed by Miller on this note, Lumsden & Co., being liable to the holder of the bill, might have been compelled to pay the same debt twice. A party thus situated cannot be subjected to this two-fold liability. It would not suffer the plaintiff to collect the note while the bill of exchange was in the hands of a bona fide holder.

The difference between this case...