White v. Morrison , 11 Ill. 361 ( 1849 )

Opinion by Treat, C. J.:

This decree cannot be affirmed. The case shows a clear right in the complainant to a foreclosure of his mortgage, unless the defendant, Butler, made full proof of his defence. He alleges in his answer, that he had acquired the legal title to the mortgaged premises, by virtue of a sale and sheriff’s deed, founded on a judgment recovered against the mortgagor before the execution of the mortgage. The sheriff’s deed, although referred to as an exhibit in the answer, does not appear to have been produced and proved. If introduced and proved as an exhibit, on the hearing, it would have been filed with the papers of the case, and copied into the transcript sent to this Court. Holdridge vs. Bailey, 4 Scammon, 124. But it is contended that the existence of the judgment and the proceedings under it, is admitted by the bill. Such is not the fact. The bill states that the defendant, Butler, pretends that he has purchased the premises, under a judgment older than the mortgage j and then charges that it would be inequitable in him to set up the purchase to defeat the mortgage, inasmuch as he had agreed to pay off the mortgage. This statement does not dispense with proof of the allegations of the answer. It is no't an admission that there was such a judgment, or that such proceedings were had under it. The bill anticipates a particular defence, without conceding it to be true. We are asked, however, to presume that proof of the defence was made orally at the hearing, under the provisions of the act of the 12th of February, 1849, which declares, “that hereafter, on the trial of any suit in chancery, the evidence on the part of either plaintiff or defendant may be given orally, under the same rules and regulations as evidence in cases at common law; provided, however, that depositions taken in pursuance of law may still be read in evidence, as if this act had not been passed.” Acts of 1849, page 133. Previous to the passage of this act, the testimony in contested chancery cases, was taken down in writing in the form of depositions, except where the witnesses were examined orally before a master, and the facts proved by them reported to the Court, and when the proof of exhibits was made viva voce at the hearing. And the depositions, the master’s report, and the exhibits were filed, and made part of the record of the case. McClay vs. Norris, 4 Gilman, 370. We are of the opinion that this act was only designed to change the mode of taking testimony, and not to dispense with the necessity of the testimony appearing in the record. The parties are permitted to produce their witnesses' in open Court, and have them examined orally. The object was to avoid the inconvenience, expense and delay attending the preparation of a case for hearing, where the evidence must be taken by depositions. When this statute is acted on, the testimony of the witnesses, or the facts proved by them, ought still to appear in the record. It may be stated in the decree; in a bill of exceptions 5 in a certificate of the Judge, or in a master’s report. We conceive it to be the duty of the Circuit Court to see that the testimony is incorporated in the record, in some one of these ways. This Court will not presume that any other proof was made than what is thus stated in the record. In this case, the decree recites that the cause was heard on the bill, answer, replication, exhibits and depositions. The record fails to show that any proof was made of the sheriff’s deed. The exhibits referred to in the decree must be understood as including only those appearing in the record. For this defect in the proof of the defendant, the decree must be reversed. Instead of a decree being entered in this Court, the cause will be remanded, that the parties may have an opportunity to present the whole case on the merits. It may not be improper to make some further suggestions respecting the case. It was insisted on the argument that the complainant was entitled to a decree of foreclosure, even if the allegations of the answer were true, inasmuch as he proved that the purchase under the judgment was made with the money of the mortgagor. If such was the fact, Butler cannot assert title under the sheriff’s deed, to the prejudice of the mortgage, because, in equity, it was the purchase of the mortgagor, and inured to the benefit of the mortgagee. But the complainant has not made a case by his bill, that will authorize him to defeat the purchase on this ground. He seeks to avoid the purchase on the ground that Butler was personally liable for the payment of the mortgage. He cannot allege one cause for relief against the purchase, and make out his case by proof of a different one. His proof must correspond with the allegations he has made, and not be inconsistent therewith. He must stand or fall with the case made in his bill. McKay vs. Bissett, 5 Gilman, 499. Special replications in chancery are now disused. A general replication only puts in issue the truth and sufficiency of the matters stated in the bill and answer. If it is necessary for a complainant to put in issue any fact on his part, in avoidance of matters set up by the defendant, he must do it by proper charges in his bill. He may, in the original bill, anticipate the defence that will be made, and allege any matter necessary to explain or avoid it; or, omitting all reference to the defence, he may, on the coming in of the answer, introduce the new matter into the case, by an amendment to the bill. Story’s Eq. Pl., sec. 878; Tarlton vs. Vietes, 1 Gilman, 470.

The decree of the Circuit Court will be reversed, with costs, and the cause remanded, with leave to the complainant to amend his bill.

Decree reversed.