Page v. Benson et al. That about the time of said pretended sale, said Vaughan, in the presence of said Benson, and before any consideration had been paid by said Benson, proposed to go and inform the complainant in reference to the matter of said sale, with a view to make arrangements for raising some funds, and that thereupon said Benson requested said Vaughan not to go near complainant, until the papers were made out. That the arrangements for said sale were conducted secretly, and the parties thereto made no inquiries of complainant as to his interest, and purposely avoided him, with a view to gain an undue advantage; that the sale was made without the knowledge of complainant; that said Vaughan was and is insolvent, and was known to be so by said Benson at the time; that said stores and tenements, at that time, would rent for about $160 per month; that said Bill, Fargo and Kellogg, have gone out of business, are unable to pay their debts, and insolvent. Prayer is, that said sale under the Aiken mortgage, and all subsequent sales, be set aside and annulled, and complainant be reinstated in his rights under his mortgage, and that said premises be sold, and proceeds applied in satisfaction of complainant's mortgage, and for general relief. Bill taken as confessed, as against Bill, Fargo and Kellogg, and Vaughan, Munroe and Aiken. Benson, Beveridge and Moss, answered as follows: That they have no knowledge of the judgment of Bill, Fargo and Kellogg, against said Vaughan, nor of the said chattel mortgage of Vaughan to Bill, Fargo and Kellogg, nor of transfer of said judgment and mortgage to complainant. Denies that Vaughan occupied any part of the premises with permission of complainant; denies that Benson took possession on the 25th of July, 1857. States that said Aiken took possession on the 17th of July, 1857, when the indebtedness secured by a chattel mortgage made by Vaughan to him, became due, and so held possession under said mortgage, until July 28th, when the premises were sold by said Aiken, by his attorney and agent, said Munroe, to said Benson, at public auction, under said mortgage, according to its terms; that Benson took possession by virtue of said purchase at said sale, and held possession until his assignment to Beveridge and Moss, who held possession until December 2nd, 1857, when they sold the premises to said Judson, who took possession, and that Judson held possession until February 12th, 1858, when he sold the same to one John B. King, who is now the legal and equitable owner thereof. That they had no knowledge of the pretended rights of the complainant; deny that he, or Bill, Fargo and Kellogg, had any Page v. Benson et al. rights as against the mortgage of said Aiken and those claiming under him; deny all fraud or irregularity and illegality in making sale under the Aiken mortgage; states that Benson paid $2,213 for said premises. Denies that said Benson had any knowledge or intimation that said complainant had any interest in said property before the sale in said Aiken mortgage. They say that they had no intimation or suspicion that said judgment had been assigned to said complainant; that said Benson did not caution said Vaughan not to go to said complainant for any purpose, nor at any time, nor did he say or do anything to that effect. States that Bill, Fargo and Kellogg, lost their lien, if any they had in said premises, by not taking possession when their indebtedness, secured thereby, became due; that said mortgage to Aiken was executed March 17th, 1857, and duly acknowledged and recorded on the 20th of same month; that, so far as defendants were informed, the records of Cook county showed no lien on said premises on the said 28th of July, the day of said sale. States that Vaughan held possession of the lot on which said building was situated, by a lease from C. Beers, dated May 1st, 1855, and running five years; that said lease was sold by said Aiken, at the same time and place as the sale under the chattel mortgage, and for the same consideration; that such sale was necessary in order to convey a good title to said building. That said Vaughan, to make a perfect transfer of all his interest therein, assigned a lease of part of said premises to said Aiken, said lease being given by Vaughan to Adler & Brother, dated April 25th, 1857. Also, a lease of another part, given by Vaughan to M. Tuck, dated May 1st, 1857; the first running to May 1st, 1858, the second to May 1st, 1859; that said Aiken held possession by his tenants, by virtue of last mentioned leases, until the sale, July 28th, 1857, when said leases were assigned to said Benson, and subsequently to Beveridge and Moss and Judson and King, who have respectively received rents, as landlords and owners; insists that said defendants' rights are perfect, as against the mortgage of Bill, Fargo and Kellogg, and especially since the return of satisfaction of said execution. States that said Beveridge, Moss and Benson, for the purpose of barring any claims that might be set up, requested Vaughan to execute a writing certifying said sale to Benson, and that said Vaughan did execute and deliver to them such an instrument. The answer of defendant Judson is essentially the same as that of the other defendants. The court below dismissed the bill. Page v. Benson et al. PAGE & HUGHES, and GOOKINS, THOMAS & ROBERTS, for Appellant. G. SCOVILLE, for Appellees. CATON, C. J. Chattel mortgage of a building on leasehold property, made to secure the amount of a judgment to be paid in two and four months from date of mortgage, and providing, also, that mortgagor might remain in possession for two years after the date of the mortgage, unless the mortgagee should sooner take possession, on condition broken. A part of the judgment was paid, and the mortgagees, after the four months had expired, assigned the mortgage and judgment to the complainant, who did not take possession, nor have any record made of the assignment. Afterwards the mortgagees caused an execution for the residue to be issued, and returned satisfied. Afterwards, and while the mortgagor was still in possession he executed another mortgage on the same property, under which the second mortgagee took possession, and assigned the mortgage and delivered possession to the assignee, who sold the property under the second mortgage. On the application of the assignee of the first mortgage and the judgment, the court set aside the entry of satisfaction of the judgment, as to the residue unpaid at the time of the assignment. The complainant filed his bill, to set aside the sale under the second mortgage, and to postpone it, till the first mortgage was paid, which bill the court below dismissed. Two questions arise. First, was the neglect to take possession after the expiration of the four months, fraudulent per se, as to the second mortgagee. And second, did the entry of satisfaction by order of the judgment creditors, after the assignment which was not recorded, release the property from the first mortgage, as to the subsequent mortgagee? Whatever may be said of the first proposition, of the last we have no doubt. The secret assignment of the judgment cannot be allowed to entrap innocent parties. All who were not chargeable with notice of the assignment of the judgment, were justified in assuming that the judgment creditors were still the equitable owners of the judgment and first mortgage. And when they entered satisfaction of the judgment or caused the execution to be returned satisfied, everybody ignorant of the assignment, had a right to buy or treat the property as released from the first mortgage, which was given to secure that judgment. Otherwise the grossest frauds might be practiced upon the innocent, not chargeable with laches. Suppose the judgment debtor had paid the judgment to the judgment creditor, while ignorant Parker v. Palmer et al. of the assignment. Could the assignee come in and say, that the payment had been made without warrant of law, or that the judgment had been paid by property at a high price? If the judgment debtor was authorized to treat the judgment creditor as authorized to receive satisfaction of the judgment, all others had a right to presume that he was authorized to enter satisfaction of the judgment, and causing the execution to be returned satisfied was equivalent to entering satisfaction, so far as this case is affected. We think the court below decreed properly in dismissing this bill, and the decree must be affirmed. Decree affirmed. CHARLES PARKER, Appellant, v. WILLIAM F. PALMER et al., Appellees. APPEAL FROM MARSHALL. If an unanswered demurrer is on record, and the party filing it goes to trial by consent, it will not be cause for reversal of the judgment. THE opinion of the court gives all the material facts of the case. H. M. WEAD, and S. L. RICHMOND, for Appellant. S. RAMSAY, and H. GROVE, for Appellees. CATON, C. J. The declaration in this case, is in assumpsit. 1st and 2nd counts are upon promissory notes, made by the plaintiff in error to the defendants in error. The declaration also contains the common money counts. On the 29th day of January, 1858, the plaintiff in error filed his plea of non assumpsit to the whole declaration, and he also filed, on the same day, a plea of usury to the 1st and 2nd counts of the declaration; and, on the same day, the defendants in error filed their general demurrer to the plea of usury, to which there was no joinder. Afterwards, on the 12th day of February, 1858, the parties appeared in court, and waived a jury, and submitted the cause to the court for trial, and the court found the issues for the defendants in error, and thereupon rendered a judgment in favor 490 173 495 22 490 108a 496 Hamilton, impl., etc., v. Dewey. of the defendants in error, upon the notes mentioned in the declaration, for the sum of $392.40, damages and costs. The defendant below now complains, that the court, by his own express consent, tried the cause without first disposing of this demurrer. Had there been a joinder in demurrer, we are sorry to say that the tenor of our decisions is such, that we should be obliged to reverse this judgment for that reason, although it may appear like trifling with the court and with justice for the party, after having expressly consented to a trial, to go behind it and raise this objection. We do not propose to go in this line of decisions, one particle beyond the point to which the decided cases lead us. Had the court decided this demurrer, we should presume a joinder was waived-as, however, the attention of the court was not called to the demurrer, and the defendant never answered it, we must presume that he waived his pleas, to which there was this answer on the files, to which he did not think it proper to reply-thus in fact confessing that the pleas were bad; were obnoxious to the demurrer, which he could not or would not answer. Until there was an issue on the demurrer, there was nothing for the court to decide. The judgment must be affirmed. Judgment affirmed. LORENZO D. HAMILTON, impleaded with Jefferson L. Dugger, Plaintiff in Error, v. ED. M. DEWEY, Defendant in Error. ERROR TO COOK. The second section of the "Practice Act " examined and construed. The case of Kenney v. Greer, in 13 Ill. R., the case of Semple v. Anderson, in 2 THIS was an action of assumpsit, brought upon a promissory note, dated and made payable at Atlanta, Logan county, Illinois. The plaintiff resides in Cook county. Hamilton and Dugger were both made defendants. A summons issued to sheriff of Cook county for both defend- ants. |