Ritter v. Schenk

• Decision Date: 18 January 1882
• Citation: 101 Ill. 387,1882 WL 10171
• Parties: PHILLIPPINA A. RITTERv.JOHN G. SCHENK et al.
• Court: Illinois Supreme Court

101 Ill. 387

1882 WL 10171 (Ill.)

PHILLIPPINA A. RITTER

v.JOHN G. SCHENK et al.

Supreme Court of Illinois.

Filed at Mt. Vernon Jan. 18, 1882.

WRIT OF ERROR to the Appellate Court for the Fourth District;-- heard in that court on writ of error to the Circuit Court of Madison county; the Hon. GEORGE W. WALL, Judge, presiding. Mr. DAVID GILLESPIE, and Mr. WILLIAM H. JONES, for the plaintiff in error.

Messrs. METCALF & BRADSHAW, for the defendants in error.

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

This was a bill in equity, brought by Phillippina A. Ritter, executrix of the estate of Henry Ritter, deceased, in the circuit court of Madison county, against John G. Schenk and Anna Schenk, to foreclose a mortgage on certain lands which had been given by the defendants to Henry Ritter in his lifetime, to secure the payment of four certain promissory notes, dated June 7, 1866: one for $600, due September 1, 1866; one for $400, due January 1, 1867; one for $650, due September 1, 1867, and one for $650, due September 1, 1868. The notes were all payable with interest, at the rate of ten per cent per annum. The bill was filed to foreclose the mortgage for a balance claimed to be due on the note due September 1, 1868, the others having been paid and taken up by the mortgagor before the bill was filed. The defendants in their answer set up payment of the note, and the circuit court, on the hearing, on the evidence, found that the note had been paid, and rendered a decree dismissing the bill. The decree was affirmed in the Appellate Court, and complainant in the bill sued out this writ of error.

On the trial, the evidence of Anna Schenk, the wife of John G. Schenk, was offered and allowed to be read, for the purpose of proving payment of the note by her, as agent of her husband. The admission of this evidence is relied upon as error. We shall not stop to inquire whether the court erred in the admission of this evidence, for the reason that the payment of the note was proven by other testimony, and if the court erred in the admission of the evidence of the wife, such an error is no ground of reversal where the record contains evidence which is competent, sufficient to sustain the decree. If the evidence of the wife was incompetent, it will be presumed the court disregarded it on the rendition of the decree, and determined the case on the legitimate evidence which was introduced on the hearing, and when this has been done, and the evidence in the record is sufficient to sustain the decree, it will be affirmed.

This brings us to the consideration of the evidence in regard to the payment of the note. Much reliance is placed on the fact that the note had never been surrendered to the defendant, but was in possession of complainant. The possession of the note in the hands of complainant, unexplained, was prima facie evidence that it had not been fully paid, and when the note was produced by complainant, and offered in evidence, the burden of proof rested on defendant to establish payment by a preponderance of evidence. Was the evidence of defendant sufficient? If it was, the decree dismissing the bill was right, and it will have to be affirmed.

It appears that Henry Ritter, the payee of the notes, died in November, 1870. Prior to his death the two notes first due had been paid, and surrendered to Schenk. After the death of Ritter,...