Rogers v. Trustees of Sch. of Twp. 23 N. R. 4 E.

• Decision Date: 31 January 1868
• Citation: 1868 WL 4898,46 Ill. 428
• Parties: ELIHU ROGERSv.TRUSTEES OF SCHOOLS OF TOWNSHIP 23 N. R. 4 E.
• Court: Illinois Supreme Court

46 Ill. 428

1868 WL 4898 (Ill.)

ELIHU ROGERS

v.TRUSTEES OF SCHOOLS OF TOWNSHIP 23 N. R. 4 E.

Supreme Court of Illinois.

January Term, 1868.

APPEAL from the Circuit Court of McLean County; the Hon. JOHN M. SCOTT, Judge, presiding. The opinion fully states the case.

Messrs. WILLIAMS & BURR, for the appellant.

Messrs. BRIER & BURCH, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of debt, brought by the Trustees of Schools of Township 23, North of Range 4, East, in the McLean Circuit Court, against John J. Price, George W. Stipp and Elihu Rogers, on a note under seal. Price was defaulted, but Rogers and Stipp filed separate pleas; and there was an agreement by counsel in the case, that all matters that might be specially pleaded, could be given in evidence under the general issue. A trial was had by the court, resulting in a judgment in favor of the plaintiffs for $958 debt, and $478 damages, from which an appeal was prayed by Rogers and Stipp, but the former alone perfected his appeal, and brings the case to this court.

It appears from the record, that the school commissioner sold to Price the N. E. 16, 23 N 4 E, on the first of October, 1851, for the sum of $478.09, and took his note for that amount for the purchase money, payable five years after date, with Rogers, Stipp and Glimpsie, as securities. He, at the same time, took of Price a mortgage on the premises to secure the payment of the note. On the same day, Stipp also purchased the S. E. quarter of the same section, from the school commissioner for $479.19, for which he gave his note, with Price, Rogers and Glimpsie as securities, and gave a mortgage on the land to secure its payment. Afterwards, the school commissioner turned over the notes to the appellees, and they held them as a part of the school fund of the township.

Before the maturity of the notes, Price bought Stipp's quarter, for about $4,000, and as a part of the consideration, agreed to pay Stipp's note, given to the school commissioner, and gave his notes for the remainder. To secure these notes, he executed a mortgage on the premises. About this time, the notes to the school commissioner fell due, and the treasurer of the township applied to Price and Stipp to renew the notes, and Price gave his note for both of the previous notes, and Rogers and Stipp became sureties, and the old notes were given up and canceled.

The treasurer still held the mortgages given to the school commissioner by Price and Stipp. On the second day of January, 1857, Price executed a mortgage to one Folsom, on the N. E. qr. 16, 23 N. 4 E., to secure a note of $1,180, given by him to Folsom, due in one year, which was duly recorded the day after it was executed.

On the eighth of October, 1858, appellees applied to Price to give them a new mortgage, to secure the note which he executed, on the same quarter section he had mortgaged to Folsom. Appellees accepted this mortgage and canceled both of the first mortgages, and had this mortgage recorded. On the fifth of December, 1861, Nichols, the assignee of the $5,600 mortgage, given by Price to Stipp, filed his bill to foreclose. A decree was rendered for $5,000, declaring that the mortgage was the first incumbrance on the land. Under this decree, the land was sold to Nichols, for $3,200, and not being redeemed, he received a deed. On the 23rd day of August, 1861, Folsom filed a bill to foreclose his mortgage on the Price quarter. Appellees were made parties, and were defaulted, and a decree of foreclosure was rendered for the amount of the mortgage, which was declared to be a first lien on the land. This land was sold to complainant under the decree for $1,229.92, and not having been redeemed within twelve months, Nichols, as a judgment creditor, redeemed and became the purchaser, and afterwards received a deed.

It appears that at the time the mortgages were foreclosed, the lands were worth twenty dollars an acre, and Nichols testified that he has since sold them, each quarter for $4,000, to innocent purchasers, without notice of the equities of the parties; and that Price has been for years wholly insolvent.

About the evidence, there seems to be but little difference as to what it proves, but the question in controversy is, whether the release of the prior mortgages, after the execution of the new note, was such an act as would release the securities to the new note; and, if so, whether, as the note is joint and several, without in any manner disclosing the fact that any of the makers are securities, that fact may be shown by extrinsic evidence. In all proceedings between themselves, the makers may show their relations to the transaction, by evidence outside of the note or obligation. And, while there is some diversity in the decisions of the various courts, as to whether, in a suit at law by the payee against the makers, they may aver and prove that a portion of them are merely securities, and that they have been released, as such, by the acts of the payee. But the rule is settled in this court, that the defense may be made at law, as well as in equity. Flynn v. Mudd and Hughes, 27 Ill. 328; Drew v. Drury, 31 Ill. 250; Kennedy v. Evans, ib. 258.

It is, however, urged, that there is a distinction between a note under seal and an unsealed instrument. That the law has made a distinction in a class of cases, for some purposes, is unquestionably true. It has declared that some instruments, if not under seal, shall be inoperative to accomplish the purpose for which they are executed. It is so of a deed for the conveyance of real estate, a bill of exceptions, and some other instruments; but the reason of such a requirement has long since ceased, and it is now only necessary because of the imperative demands of the law. Our statute making notes assignable, whether under seal or not, has, to that extent and for...