Mccullum v. Herrington

• Decision Date: 31 January 1869
• Citation: 50 Ill. 362,1869 WL 5235
• Parties: GEORGE MCCULLUMv.NATHAN P. HERRINGTON et al.
• Court: Illinois Supreme Court

50 Ill. 362

1869 WL 5235 (Ill.)

GEORGE MCCULLUM

v.NATHAN P. HERRINGTON et al.

Supreme Court of Illinois.

January Term, 1869.

APPEAL from the Circuit Court of Mason county; the Hon. JAMES HARRIOT, Judge, presiding.

The facts sufficiently appear in the opinion.

Mr. B. F. PARKS and Mr. B. S. PRETTYMAN, for the appellant.

Mr. C. BECKWITH, Mr. A. M. HERRINGTON, and Messrs. DEARBORN & WRIGHT, for the appellees.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

Ithemer and George F. Hickman executed to Dearborn, on the 29th of October, 1857, their three promissory notes, falling due in 1859, 1860 and 1861, respectively, and secured by a deed of trust. The first and third notes came by assignment to Nathan P. Herrington, the appellee, and the second, after several assignments, was endorsed before maturity, and for a valuable consideration, to McCullum, the appellant. The notes not being paid, the trustee, at the request of Herrington, sold the land at auction. It was struck off to Herrington, and the trustee received no money, but applied the bid in extinguishment of the notes held by Herrington, whose bid equalled their amount. Thereupon, McCullum filed a bill, claiming that the second note held by him should have been paid, in preference to the one last falling due, and asking either that Herrington should pay his note, or submit to another sale of the land. Herrington thereupon filed a cross-bill, alleging that the second note had been assigned to McCullum, instead of the third, by mistake, and that it was the intention of all the parties concerned, to assign the first and second notes to himself. The cross-bill prayed a decree correcting the alleged mistake, and declaring Herrington the owner of the first and second notes and McCullum the owner of the third. The circuit court so decreed, and McCullum appealed.

Was the proof sufficient in support of the cross-bill to entitle the complainant in that bill to a decree? The circuit court so held, but in this view we are not able to concur.

It is to be first remarked, that McCullum has the clear legal title to this note, arising from its endorsement and delivery to him for a valuable consideration. Before a court can properly divest him of his title, the proof should be very satisfactory that he holds it in violation of a superior equity in complainant. Thaddeus W. Herrington, a brother of the complainant in the cross-bill, assigned this note to McCullum, and he testifies, with great positiveness, that it was distinctly understood he was buying the second note. On the other hand, Moore, who had held all the notes, and who assigned two of them to N. P. Herrington, and one to Thaddeus Herrington, testifies he sold to the latter the note last falling due. Here, then, is the testimony of the only persons who had any personal knowledge of the transaction, directly and positively conflicting. The evidence of Moore is, however, in some degree corroborated by other witnesses, but to what extent it is not necessary to inquire, inasmuch as the evidence, whatever it may be, in regard to Thaddeus Herrington, is insufficient as against McCullum. The second note was the only one held by Thaddeus Herrington when he...