Stiger v. Lucinda G. Bent.

• Decision Date: 27 September 1884
• Citation: Stiger v. Lucinda G. Bent., 111 Ill. 328, 1884 WL 9965 (Ill. 1884)
• Parties: ISAAC Z. STIGER et al.v.LUCINDA G. BENT.
• Court: Illinois Supreme Court

111 Ill. 328

1884 WL 9965 (Ill.)

ISAAC Z. STIGER et al.

v.LUCINDA G. BENT.

Supreme Court of Illinois.

Filed at Springfield Sept. 27, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Third District;--heard in that court on appeal from the Circuit Court of McLean county; the Hon. OWEN T. REEVES, Judge, presiding.

Mr. M. W. PACKARD, for the appellants:

Without setting aside the satisfaction of the trust deed, no foreclosure should have been had.

Louisa Arbogast being the owner of the land when the trust deed was given, was a necessary party to the bill; and so was the administrator de bonis non of Stiger. McCall v. Lesher, 2 Gilm. 47; Winkelman v. Kiser, 27 Ill. 21.

There was usury in the transaction, which the court below ignored. Payne v. Newcomb, 100 Ill. 611.

The entry of satisfaction of the trust deed made a prima facie case that the debt was paid, and shifted the burden of proof upon appellee to show it had not in fact been paid. Fleming v. Parry, 12 Harr. 47; Vallé's Admx. v. American Iron Mountain Co. 27 Mo. 455; Harrison v. Johnson, 18 N. J. Eq. 420; Freeholders v. Thomas, 5 Id. 39; Allard v. Lane, 16 Maine, 1.

Davis was held out as an agent of appellee by allowing him to collect the interest coupons, and to extend the time of payment, and by entrusting him with the trust deed.

Silence of the principal after notice of the acts of one assuming to act as his agent, may be sufficient evidence of a ratification of his acts. Frothingham v. Haley, 3 Mass. 70; Shaw v. Nudd, 8 Pick. 9; Thayer v. White, 12 Metc. 343; Foster v. Rockwell, 104 Mass. 167; Johnson v. Jones, 4 Barb. 369; Williams v. Merritt, 23 Ill. 623; 1 Livermore on Agency, 396; 2 Kent's Commentaries, 614; Barbour v. Mortgage Co. 102 Ill. 123; Martin v. Judd, 60 Id. 78; Booth v. Wiley, 102 Id. 84; Ward v. Williams, 26 Id. 451; Searing v. Butler, 69 Id. 575; Story on Agency, secs. 253, 255; 2 Greenleaf on Evidence, sec. 67.

Appellee should have repudiated Davis' act at once, and notified Stiger of his want of authority, if such was the fact, so as to enable him to secure himself.

Counsel also set up the laches in bringing suit, as a bar to equitable relief, besides making various other points.

Mr. IRA J. BLOOMFIELD, for the appellee:

The fact that Larrimore and Davis collected the installments of interest, did not authorize them to collect the principal, nor justify the parties in paying over the money to Davis. Cooley v. Willard, 34 Ill. 68.

Biggs, by assuming this indebtedness, and agreeing to pay it as a part of the purchase money when he bought the land, thereby became the principal upon that note, and was guilty of gross negligence in paying the money and not taking up the note. Keohane v. Smith, 97 Ill. 156.

Davis did not profess to act as agent for appellee in collecting this money, but claimed it in his own right, and in that way, through the gross negligence of the parties, defrauded them. Appellants are not in a position to set up usury. Besides, there was no usury in this transaction. By the agreed evidence appellee “never received anything above ten per cent, in any way.” Kihlholz v. Wolf, 103 Ill. 362.

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

On the 16th of September, 1868, William B. Arbogast, and Louisa, his wife, to secure the payment of his promissory notes to Lucinda G. Bent, of that date,-- namely, one for $1100, payable three years after date, with interest thereon at the rate of ten per cent per annum after due, and six coupon notes, of $55 each, for the interest on the amount secured by that note before maturity, payable, respectively, the first, one day thereafter, and the others consecutively, one every six months,--conveyed a certain tract of land owned by her, in McLean county, to Reuben L. Davis, as trustee, with usual power of sale on default of payment, and the deed was duly recorded in apt time. On the 29th of September, 1869, they sold the same tract to A. E. Biggs, subject to the deed of trust, and executed a deed accordingly. On the 29th of August, 1873, Biggs contracted with Abraham Stiger to sell the land to him. At that time the interest had all been paid, but the principal note for $1100 was still unpaid. Stiger refused to purchase unless he could pay off the trust deed, and thereupon they applied to Davis, who said the deed was in his name, and that he could release it, and would do so on receipt of the amount due. Stiger thereupon paid him the amount due on the principal note, and Davis then entered upon the margin of the record of the deed of trust the following:

+--------------------------+
                ¦“STATE OF ILLINOIS, ¦)¦   ¦
                +--------------------+-+---¦
                ¦                    ¦)¦ss.¦
                +--------------------+-+---¦
                ¦McLean County.      ¦)¦   ¦
                +--------------------------+
                

I hereby certify that the note described in this trust deed is satisfied in full, and the land therein described is hereby released from the lien thereof.

R. L. DAVIS, Trustee.” And afterwards, on the same day, Stiger paid Biggs the balance of the purchase money agreed upon to be paid by him, and Biggs executed and delivered to Stiger a warranty deed for the land. The promissory note secured by the deed of trust was not surrendered to Stiger, nor was it shown to him by Davis, nor is it proved to have been in his possession at the time. Lucinda G. Bent knew nothing of the sale to Stiger, and the entry of satisfaction on the record of the deed of trust, at the time, nor until the spring of 1876, when she was informed thereof by Davis. Davis neglected to pay the money over to Mrs. Bent, and converted it to his own use. On the day she was informed of the sale to Stiger and of Davis' conduct in connection therewith, or within a few days thereafter, Mrs. Bent placed the note in the hands of her attorney for collection, but he delayed bringing suit thereon until the present bill was filed, on the pretence that he was awaiting a decision in certain suits then pending, in which kindred questions were involved. Abraham Stiger, after making his last will and testament, died. The will was properly proven, and admitted to probate on the 25th of May, 1878. Among other things he thereby devised this tract of land to his wife, Judith Stiger, during her natural life; and he further thereby devised, that after the death of his wife the land should be sold, and $1500 of the proceeds of such sale should be paid to his grand-son, John W. Stiger. He directed that the residue of his estate should be equally divided between his sons and daughters therein named. Executors are named in the will, who, it is shown, afterwards died, and then Jesse D. Enlow was appointed, by the proper court, administrator de bonis non, with the will annexed.

This bill was filed by Lucinda G. Bent, on the 9th of April, 1880, to foreclose the deed of trust. William B. Arbogast, Judith Stiger, John W. Stiger, Elmira M. Swope, Jane M. Kent, Celia A. Weitzel, William A. Stiger and Isaac Z. Stiger, are, by the bill as amended, made defendants. Answers were filed by Judith Stiger, Elmira M. Swope, Jane M. Kent, William A. Stiger and Isaac Z. Stiger. John W. Stiger, being a minor, answered by his guardian ad litem. Subsequently, by leave of court, Reuben L. Davis and A. E. Biggs were made defendants. Decree by default was rendered against William B. Arbogast, Reuben L. Davis and A. E. Biggs, and the cause was then referred to the master in chancery to take and report proofs. On final hearing, the court decreed that the trust deed should be foreclosed as to all the defendants except Judith Stiger and John W. Stiger, but as to them the decree was, that the complainant, by reason of delay in commencing the suit after notice of the acts of her trustee, waived her right to foreclose, and hence that the life estate of the one and the legacy of $1500 to the other are preferred by the decree to the rights of the complainant. In all other respects it was decreed the equities are in favor of the complainant. This decree, on appeal to the Appellate Court for the Third District, was affirmed, and that affirmance is now assailed by this appeal, which is prosecuted by Isaac Z. Stiger and Jane M. Kent.

A point made in argument that the decree below was, even upon appellee's theory, for too large an amount, is put out of the case by the remittitur in the court below, and therefore demands no further notice.

The question of usury does not properly arise upon this record, although it is discussed by counsel in argument. As has been stated, Arbogast, the original debtor, and in whose note alone is usury, if anywhere in the transactions involved, sold to Biggs, and Biggs sold to Stiger. Biggs undertook, as a part of his contract with Arbogast, to pay off the indebtedness secured by the deed of trust, and Stiger, before receiving his deed from Biggs, attempted to pay off that indebtedness, and thought that he had done so. Both in the sale to Biggs and that to Stiger, payment of the indebtedness secured by the deed of trust constituted a part of the consideration for executing the deed. It represented, pro tanto, so much purchase money. As to each of them, then, and those standing in their places, it is impossible that there can be any question of usury. Arbogast makes no complaint of the decree on the ground of usury, and it is not admissible that other parties not affected by it can interpose that defence. Henderson v. Bellew, 45 Ill. 322; Valentine v. Fish, Id. 462; Pike v. Crist, 62 Id. 461; Maher v. Lanfrom, 86 Id. 520.

Objection is taken to the decree because it does not appear that Louisa Arbogast was before the court as a party. Very clearly, she was not a necessary party. She was not a maker of the note secured by the deed of trust, and she was in nowise personally liable for its payment. When, therefore, she had sold her land, subject to the deed of trust, it is not possible that she could have been further interested in that deed. She had then received all she could...