Olds v. Cummings

• Decision Date: 30 April 1863
• Parties: JUSTIN H. OLDSv.PRESTON CUMMINGS et al.
• Court: Illinois Supreme Court

31 Ill. 188

1863 WL 3092 (Ill.)

JUSTIN H. OLDS

v.PRESTON CUMMINGS et al.

Supreme Court of Illinois.

April Term, 1863.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Bureau county; the Hon. M. E. HOLLISTER, Judge, presiding.

This was a bill in chancery exhibited in the Circuit Court, by Justin H. Olds against Preston Cummings, Cynthia Cummings, his wife, and others, asking the foreclosure of a mortgage.

It appears that on the 21st of November, 1857, Preston Cummings executed, to the order of Charles L. Kelsey, his two certain promissory notes, both payable some months thereafter.

On the same day on which the notes were executed, Preston Cummings, with his wife, Cynthia Cummings, to secure the payment of these notes, executed and delivered to Kelsey, a mortgage upon real estate.

The notes were assigned to Olds, the complainant, by Kelsey, the payee, as the bill alleges, before their maturity.

Olds, the assignee, sought by this bill, to foreclose the mortgage mentioned.

Cummings, in his answer, admits the execution of the notes and mortgage described in the bill; but interposes the defense of usury. It is also alleged in the answer, that the assignment of the notes by Kelsey to Olds, was made, (if at all) long after their maturity; but that, in fact, the matter of the assignment was only colorable, not made bona fide, for a valuable consideration, and only to prevent the defendants setting up the defense before mentioned.

The record contains voluminous proofs upon these contested questions of fact; but it is not important to consider the evidence, as the point determined arises out of the facts as insisted upon by the complainant himself.

The Circuit Court held that the equity of the case was with the defendant, Preston Cummings, and that there was usury in the notes sued upon, of which usury the complainant had notice, and that he was not entitled to recover the same, but only the principal and interest in the notes, after deducting the usury which they contained: and a decree was rendered accordingly.

Olds, the complainant below, then sued out this writ of error, and questions the correctness of that decree, because, among other grounds, the Circuit Court sustained the defense of usury as against him.

Mr. MILTON T. PETERS, for the plaintiff in error.

Messrs. KENDALL & IDE, for the defendants in error.

Mr. CHIEF JUSTICE CATON delivered the opinion of the Court:

We do not find it necessary to determine the question whether Olds was a bona fide purchaser of this mortgage or not. In a case submitted subsequent to this one, we have been called upon to examine the question as to how far the rights of the assignee of a mortgage, purchased for a valuable consideration, before due, and in ignorance of any equities or defense, shall be affected by such defense; and, as this record also presents the question, and as the conclusion at which we have arrived, decides the case, we shall here consider this question and none other.

By the common law, choses in action were not assignable. For the convenience of commerce, by the statute of Anne, in England, certain choses in action were made assignable, so as to vest in the assignee the legal title, as promissory notes and bills of exchange. We have a statute, also, making certain choses in action assignable, prescribing a particular mode in which they shall be assigned. Our statute provides, that any promissory note, bond, bill, or other instrument in writing, whereby one person promises to pay to another any sum of money, or article of personal property, or sum of money in personal property, shall be assignable by indorsement thereon. Now, the mortgage to foreclose which this bill was filed, was given to secure the payment of two promissory notes which were assigned by the payee and mortgagee to the complainants. This was, in equity, an assignment of the mortgage. The notes were assignable by the statute, but the mortgage is not, nor is it assignable by the common law. The assignee of a mortgage has no remedy upon it by law, except it be treated as an absolute conveyance, and the mortgagee convey the premises to the assignee by deed; and upon the question whether this can be done, the authorities are conflicting. Even our statute, authorizing foreclosures of mortgages by scire facias, has carefully confined the right to the mortgagee, and does not authorize this to be done by assignees. But it is said that the assignment of the notes carries with it the mortgage, which is but an incident to the principal debt. That is true, in equity, and only in equity. Courts of equity will not be confined to legal forms and legal titles, but look beyond these, to the substantial, equitable rights of parties, and allow parties who have equitable rights, to enforce those rights in their own names, without regard to legal titles. The assignee of a judgment, even, may, in his own name, enforce it in equity. But while courts of equity thus enforce equitable rights, they do it with a scrupulous regard to the equitable rights of others. Thus, if the assignee of a judgment attempt to enforce it in equity, no...