Mcclay v. Norris

• Decision Date: 31 December 1847
• Citation: Mcclay v. Norris, 4 Gilman 370, 9 Ill. 370, 1847 WL 3871 (Ill. 1847)
• Court: Illinois Supreme Court
• Parties: WILLIAM R. MCCLAY, administrator etc. et al.v.GEORGE H. NORRIS.

4 Gilman 370

9 Ill. 370

1847 WL 3871 (Ill.)

WILLIAM R. MCCLAY, administrator etc. et al.

v.GEORGE H. NORRIS.

Supreme Court of Illinois.

December Term, 1847.

BILL IN CHANCERY to foreclose a mortgage, and to correct mistakes therein, filed by the defendant in error against the plaintiffs in error, in the La Salle circuit court. The cause was heard at the November term, 1842, before the Hon JOHN D. CATON, when a decree of foreclosure etc. was rendered.

The substance of the bill and proceedings therein will be found in the opinion of the court.

T. FORD, for the plaintiffs in error.

A writ of error is a writ of right, and can not be denied except in capital cases. Bowers v. Green, 1 Scam. 42. This case refers to the statute. See Rev. Stat. § 7, page 143, as to the jurisdiction of courts of equity.

The decree not having given day to the defendant, makes it final as to him, and therefore, he may prosecute a writ of error.

A writ of error will lie to the circuit court, sitting as a court of chancery. Greenup v. Porter, 2 Scam. 417. Therefore, if a writ of error is a writ of right, it is a writ of right as well in chancery cases as others.

There is no evidence in the record, that John Armstrong is a minor, or otherwise. If he is a minor, and does not sue out his writ by his next friend, the fact, before joinder in error, can be shown, and the writ dismissed under the practice act. This objection goes to quash the writ, and is in the nature of a proceeding in abatement, and can not be taken advantage of after joinder in error. It is of the same nature as an objection to a want of security for costs, by a non-resident, which must be noticed before a plea to the merits is put in. But as the objection has not been thus made, the court, if they deem it for the benefit of the infant, may, and will presume that he has became of age.

The question, then, before the court is simply this, whether an infant after he comes of age may not prosecute a writ of error. Bowers v. Green, 1 Scam. 42; Greenup v. Porter, 2 do. 417; Rev. Stat. § 7, p. 143. A writ of error is barred in five years, but when an infant thinks himself aggrieved by any decree or judgment that may be reversed in the supreme court, he shall have until five years after he comes of age. This is the statute of limitation contained in the practice act. Rev. Stat, § 53, p. 421.

This common law and statutory right to prosecute a writ of error is not taken away by any of the authorities referred to. All they prove is, that the infant when he comes of age, has another and perhaps a fuller remedy. A writ of error reaches errors only which appear on the record; a bill of review reaches errors both of law and fact. The case in 18 Vesey, 83, proves only that the decree to foreclose would bind the infant, and that he ought to have a day to show cause after he comes of age, (note here,) the lord chancellor afterwards made a precedent to sell. In connection with this the New York practice has been to sell.

Foreclosure by sale has grown to be the settled practice everywhere since the above decision, and I shall not detain the court by referring to authorities on this point. But a decree of strict foreclosure ought not to be made, where it is not manifestly for the interest of the mortgagor. This is the doctrine in the 4th vol. of Kent's Commentaries. Strict foreclosure ought not to be decreed against an infant unless it appears that it was the best for his interest. The decree does not pretend to find whether the land was, or was not worth more than the sum secured by the mortgage.

A decree is erroneous which hath not these words: “Unless cause be shown within six months, etc.” 8 Eng. Ch. R. 59, 60, 62. This case proves only that the chancellor was in doubt, whether an infant could be let in to defend and make a new case, but he has no doubt of his right to prosecute a writ of error.

The doctrine has since been well established, that an infant may have a bill of review, be let in to defend and make a new case after he comes of age, in all chancery proceedings. 1 Smith's Ch. Pr. 259; 8 Peters, 143. It is said that this decision is founded on a statute of Maryland. If so, then the infant must have his writ of error here, or there is no remedy. But so far as the statute requires, it only made the case a chancery proceeding. This case nor any other pretends to decide that because the infant has a right to make a new case of law and fact after he comes of age, that he has no right to a writ of error to reverse for errors of law appearing on the record. The writ of error may be all sufficient for his purpose, and why compel him to make a new case?

It is said on the other side, that the infant may have error and bill of review both. If John Armstrong is of age he has made his election; if not, it is the defendant's fault that he did not show it before he joined in error. The court can not know that the plaintiff is an infant. Nothing of the sort appears on the record. On the contrary, as the defendant has not objected, the presumption is that he has come of age.

Then is there error of law in the record? 1. The court decreed that there was a mistake in the mortgage. The matter mistaken is a capital fact, and ought to be proved as other facts. And in case of an infant, it ought to be proved by evidence of record. The case of 2 Scam. 218, did not turn on this point; the question was not raised, though the court think the guardian may admit the facts in the bill. But the point relied on there arose on the statute of frauds. The infant's answer can not be read in evidence against him; it is the guardian's answer. 1 Smith's Ch. Pr. 259; 8 Peters, 144-5. The facts of the bill ought to be proved notwithstanding an answer admitting them all.

If it be true that the facts are to be proved, how are they to be proved? As against the infant, in the same manner, I contend, as if he had answered denying everything. In this case, the guardian ad litem has admitted nothing. The administrators are not parties in interest, and are joined by statute for form, and because they have assets, and may pay the debt. Pro confesso against them should not prejudice the heir. He has the inheritance, and proof ought to conform to law as to him; no decree pro confesso against minors. If he is satisfied with the testimony, he may prosecute error and waive review. The rules of evidence in chancery require that the evidence should be in writing. 3 Black. Com. 449, 450; 1 Smith's Co. Pr. 339. And it is to be presumed that the record contains all the evidence, for which see 4 Scam. 126; Rev. Stat. 93, § 1.

The trial of issues out of chancery is a legal proceeding, and there may be an exception, but no bill of exceptions can be filed on a hearing in chancery. If, then, there is no bill of exceptions allowed, the only mode of preserving the evidence in the record, is by depositions and other writings in the record, or by a master's report. The master is to take down the evidence in all cases of reference to him, for the use of the court if necessary. 1 Barb. Ch. Pr. 501, 502.

If the evidence is not taken down and put on the record for an infant, he will be denied his writ of error, or, at least, he will get no benefit from it. Parol evidence may be given against parties on a decree pro confesso, because one who will not answer the bill, may well be presumed to have no deference. But no such presumption can safely be indulged as against infants.

It is said that the mortgaged property has greatly increased in value. This is dehors the record. I might as well say that the lot was worth three times the amount of debt secured on it, and thus attack the strict foreclosure.

The complainant ought to proceed cautiously, and at his peril as against an infant, and if it be true, as the defendant contends, the infant defendant has a bill of review when he comes of age, and if he will come of age several years hence, and if there is error in this proceeding, the sooner it is looked into, the better it will be for the defendant; for if deferred, the property, by improvements the defendant may put on it, may be made still more valuable, and make the case still worse for the defendant.

The bill of review, after the infant comes of age, ought not to be the only remedy. The witnesses for him may die, and other evidence upon which he might rely, might be lost or destroyed by time or accident. And if the infant complains only of error apparent on the record, there can be no manner of use in restraining him to a bill of review as his only remedy.

O. PETERS, for the plaintiffs in error.

As to the infant, John Armstrong. The court is the guardian of the rights of infants. When an infant defendant is before the court, it will see that its rights are protected. The law has provided no particular mode of doing this by the court.

It is not denied that, ordinarily, the mode of proof in chancery causes, when an issue is made, is by depositions. This is settled in the case cited on the other side. Holdridge v. Bailey, 4 Scam. In that case, however, the bill was founded upon the bond, which had been lost, and which was not made part of the record.

In the case of infants it is different. As to them, the court has a general power to protect their interests and rights. It is bound to appoint a guardian ad litem, it has power to control the guardian, to make him perform his duty, to remove him, etc.

But the court may make all necessary inquiries by itself or its master. It is usual to refer the matter to a master, but this is not necessary. Wall v. Bushley, 1 Brown's C. C. 425; top paging. The Lord Chancellor says, that though it is usual, in case of infants, to refer the matter to amaster, yet it is not necessary. But if the decree is rendered without such reference, the authority is the same as if it had been referred. So in Quantock v. Buller, 5 Mad. Ch. R. 56, held that depositions taken before the infants were made parties, should...