Ross v. Harney , 139 Ill. App. 513 ( 1908 )

Mr. Justice Thompson

delivered the opinion of the court.

It is assigned for error and argued that Bridget Harney and Mary A. Hamey-Monier did not acknowledge or deliver the note and mortgage; that George N. Harney neither signed nor delivered them, and that he never acknowledged the mortgage. Bridget Harney, Mary A. Harney-Monier and George N. Harney each insisted in their answers that they never executed and delivered the note. Bridget Harney and Mary A. Harney-Monier do not now insist that they did not execute the note, and admit that the signatures to the note and mortgage are their signatures, but they deny that they ever acknowledged or delivered the mortgage. It is insisted still that George N. Harney did not execute either the note or mortgage. The record shows that defendant in error Boss conducts a bank at Walnut in Bureau county, under the name of the Walnut Bank, and that Bridget Harney, T. A. Harney and E. S. Harney on January 23, 1899, confessed a judgment to the Walnut Bank for $1,513.66 and costs; that T. A. Harney had bought some swamp land in Henry county from parties in Bock Island, and desired to borrow money from Boss to make payments on this land, but could not do so without first securing or paying the judgment against him and his mother, Bridget Harney, and brother, E. S. Harney; that T. A. Harney negotiated for a $5,000 loan from defendant in error through M. A. Stiver, an attorney; that Stiver prepared a note and mortgage to be executed by Bridget, Charles J. and George H. Harney and Mary A. Harney-Monier and gave them to T. A. Harney to have executed. The evidence shows that the note sued on is the note prepared by Stiver but the mortgage is not the one prepared by him. Thomas E. Clover, an attorney at Henry near where the plaintiffs in error resided, testifies that he prepared the mortgage sought to be foreclosed; that he has known the plaintiffs in error ten or twelve years; that Charles J., Bridget, and George H. Harney and Mary A. Harney-Monier signed the mortgage before him as a notary public; that the makers of the mortgage came to his office at different times and he saw each of them sign their respective names, and that George said at the time he signed the mortgage, “I came in to sign that mortgage,” and that T. A. Harney took the note and mortgage from the office. He also testifies that he does not remember seeing the note executed but he knows the signature, George H. Harney, to the note is George N. Harney’s signature. T. A. Harney testifies that George’s name was placed on the note while George had it in his possession at Annawan while he was getting dressed to go to Geneseo, and that George had the mortgage at the same time, but says he cannot say whether they are his signatures. George H. Harney’s mother, Bridget Harney, testifies that George writes several ways and that the disputed signatures are much like his. Ilis brother Charles testifies that he is familiar with George’s signature, but cannot say whether they are his or not, and his sister Mary testifies that she knows his signature but cannot swear it is his signature to the note, and that when she signed the papers she thought George had signed them. George’s name appears on both the note and mortgage beneath the signature of Bridget Harney and next above that of Mary Harney-Monier, which is the last of the signatures to both the note and mortgage. On the mortgage the signatures are upon four successive lines printed for the guidance of signers, while on the note the four signatures are crowded into the space intended for three signatures. The mortgage also has the official certificate of acknowledgment of Thomas F. Clover, notary public. It is shown by the evidence that T. A. Harney delivered the note and mortgage to defendant in error and received for it three drafts, one payable to the order of George H. Harney for $2,205; another for $461.25, payable to the order of George N. Harney; and one for $608.79 payable to the order of T. A. Harney; and $183 in money, and a release of the judgment held by the Walnut Bank. George 1ST. Harney received the drafts for $2,666.25 payable to his order from the money procured through this note and mortgage, and used the same to make a payment on T. A. Harney’s land contract. In August, 1902, George ÍT. Harney wwote to the Walnut Bank to postpone the case and said, “will be up to make arrangements Monday or Tuesday of next week.” This was before the suit was begun, when the bank was urging payment and threatening suit. George H. Harney testifies he did not sign either the note or mortgage and says they are not his writing; however lie does not seem to recognize his own signature clearly, as lie says his brother T. A. Harney gave him the two drafts payable to George H. Harney to take to Rock Island and make a payment on the land, and testifies that the indorsement on the back of one of the drafts “looks like my signature but I do not remember signing it. I do not think that I did.” He also testifies that the drafts were given him to take to Rock Island in 1898, while the drafts were issued in 1899, and that in 1898 or 1899 he told T. A. Harney he could do nothing to help him get money to pay the judgment. The only witness besides George H. Harney who testifies positively that the names George H. Harney on the note and mortgage are not the signatures of George H. Harney is his brother James H. Harney, who testifies his brother George was in the swamps at Annawan in Henry county the last half of April and the first week in May, 1899, and yet said he (James) was in Chicago all of 1899. He does not appear to recognize the genuine signature of his brother George, since he testifies that the letter written and signed by George in August, 1902, “Exhibit C,” is not George’s writing, although George had testified that he wrote and signed it. Charles J. Harney testifies that he “signed the note and mortgage at his mother’s home; that Tom came from Annawan and asked him to sign them.” Margaret Harney testifies that Charles was not at home at that time, but at Annawan. Mary A. Harney-Monier testifies that she did not sign the note, and T. A. Harney testifies he saw her sign. it. The members of the family contradict each other to such an extent on material matters that we think the court was justified in finding that the evidence of the defendants did not overcome the positive testimony of Clover and the notarial certificate. To find otherwise would be to hold that some member of the family was guilty of forgery. In a matter of this kind the conclusions of the master are prima facie correct. Ennesser v. Hudek, 169 Ill. 494. The Circuit Court approved the finding of the master and we hold that such finding is sustained by the weight of the evidence.

The signatures of Bridget Harney and Mary A. Harney-Monier to the mortgage are proved by the evidence of memhers of the Harney family. Its execution is sufficiently proved, and it is valid as to them, -without the evidence of the notary or his notarial certificate. A deed or mortgage is valid as between the parties without being acknowledged, and its execution may be proved by the testimony of anyone who saw the same executed or by the admission of the grantor. Roane v. Baker, 120 Ill., 308: Semple v. Miles, 2 Scam., 315.

It might be observed, regarding the mortgage alone, that to impeach a notary’s certificate “the evidence should do more than produce a mere preponderance against its integrity in the balancing of probabilities.” The authorities very clearly lay down the rule that evidence offered to impeach a certificate of this character must fully an,d clearly satisfy the court that the certificate of the officer is false and fraudulent, and even a preponderance of evidence less than sufficient to establish a moral certainty to that effect is not sufficient. Brady v. Cole, 164 Ill., 116; Gritten v. Dickerson, 202 Ill., 372.

The makers of the note and mortgage did not personally deliver them to the defendant in error, but having signed them at the request of T. A. Harney and permitted him to have possession of them, they cannot be heard to say that he was not their agent to deliver them. When they permitted him to take the instruments they had signed it could be for no other purpose than to deliver them to the defendant in error, payee in the note and grantee in the mortgage; to hold that they were never delivered under the circumstances shown by plaintiffs in error -would be to permit the makers to perpetrate a bald fraud on an innocent holder. All the circumstances' shown surrounding the transaction indicate a purpose and intention to make T. A. Harney an agent to deliver the note and mortgage.

It is also insisted that the court had no right to order a sale of the real estate described in the mortgage, and that a sale absolute without the right of redemption was error. The fourth clause of the will of Daniel Harney directed “ that so soon as my yo¡ungest living child shall arrive at his or her majority, that all my real estate shall be sold by my executors,” etc. It is alleged in the bill that the executors nominated in the will refused to qualify and that Bridget Harney is the administratrix with the will annexed, and that Charles J. Harney is the youngest child of the deceased, and that he was past his majority when the bill was filed. These allegations were proved. The administratrix with the will annexed had no right or authority to make a sale without going into a court of chancery and procuring a decree authorizing her as trustee to carry out the directions contained in the will. Hall v. Irwin, 2 Gilm., 176; Stoff v. McGinn, 178 Ill., 46; Penn v. Fogler, 182 Ill., 76; 11 Am. & Eng. Ency. (2d ed.) 1321. A court of chancery has power to appoint and authorize *a trustee to carry out the provisions of a will. Hall v. Irwin, supra. A sale by a trustee appointed by a court to carry out the provisions of a will must be a sale absolute, subject only to the approval of the court.

The time having arrived for the sale of the real estate described in the will, the question arises was the complainant authorized in any way to file a bill asking for the appointment of a trustee to carry out the provisions of the will. Bridget Harney has an interest in one-third of the real estate or its proceeds for her life and the $3,000 legacy out of the proceeds that she purchased from Robert Harney. George N. Harney is entitled to a $3,000 legacy, and a half interest in the residue after the payment of the legacies, subject to his mother’s life interest, and Charles J. Harney has an equal interest with George. Mary A. Harney-Monier and Edmund Harney are each entitled to a legacy of $1,000 out of the proceeds of the real estate. Bridget, George N. and Charles J. Harney may have determined and elected to receive the real estate in place of having the property sold and converted into cash. The real estate is directed to be sold when the youngest child shall arrive at majority, and the legacies are to be paid within one year thereafter by the fourth, fifth and sixth provisions of the will. Eeither Robert, Charles, George, Edmund nor Mary had died before the time for the payment of their respective legacies, and the right to the legacies had become absolutely vested in them. The eighth clause of the will provides : “All the rest, residue and remainder of my estate both real and personal, I hereby give, devise and bequeath to my sons Charles J. and George N. to be divided equally between them share and share alike.” The rest and residue that might remain after the payment of legacies is vested absolutely in George and Charles. If the legacies were paid there is no equitable reason why Bridget, George, and Charles might not take the real estate, and not have it sold to take the proceeds. Bridget was asked whether she, Edmund, George and Charles had not agreed to hold the farm and not sell it under the will and she answered, “We have had no writing. I have thought myself that I would always remain there if they don’t want to sell it.” “Have you and your sons and Mary A. Harney-Monier talked it over and agreed among yourselves verbally that you will keep it as land and not sell it under the will?” To that she answered: “I have no answer to that.” “We have lately executed a mortgage on these lands for $4,000 to Charles B. Jones; we had no understanding or agreement to treat our interest in these lands as real estate and not have it sold under the will when we made that mortgage. Mary A. Hamey-Monier did not join with me in this mortgage.” The record contains no evidence as to what Edmund has done or claimed with reference to the legacy to him, nor whether he signed the Jones mortgage or not, neither is it averred or any proof made whether the residuary legatees have or have not paid the other legatees so as to avoid a sale by the trustee to carry out the terms of the will. The mortgage given by plaintiffs in error to defendant in error has full covenants of warranty. Where a party executes a deed containing covenants of warranty, whatever title or interest he may have in the land or may afterwards procure inures to the benefit of the grantee in the deed.

It is alleged in the bill that the plaintiffs in error who had executed the mortgage should by reason of their covenants be estopped to claim and receive their share of the proceeds of the sale of the real estate under the will. Defendant in error parted with his money in exchange for the mortgage. To permit plaintiffs in error to obtain a loan upon a mortgage with full covenants of warranty on property they had no legal title to, but which was to be sold under a will and part of the proceeds paid to plaintiffs in error, and to say they had no interest in the property that was subject to be mortgaged, and permit them to receive the proceeds of the sale as against the mortgagee, would be to sanction a fraudulent result and to uphold plaintiffs in error in the perpetration of a fraud. In Lagger v. Mutual U. L. Assn., 146 Ill., 283, where a widow who was the administratrix, had fraudulently, by connivance with third parties acting for her, bought land at an administratrix’s sale. to pay debts of which the principal debt was her award, and given a mortgage on the land, the sale was set aside because of her fraud, and it was held on a resale that she was estopped to claim her award and the costs of improvements due her, and it was ordered that the proceeds due her on her award and for improvements should be paid to the mortgagee by virtue of the estoppel arising from the covenants of warranty in the mortgage. In Baldwin v. Vreeland, 43 N. J. Eq. 446 (11 Atl. R., 341), a testator devised his real estate to his executors to sell and convert the same into cash and divide the proceeds equally between his wife and three sons, except a certain portion in which the wife was given a life estate, and this was to be sold by the executors after her death and divided amongst the sons. Before the death of the wife one of the sons attempted to convey his interest in the portion not to be sold until after his mother’s death by a mortgage, and was afterwards adjudged a bankrupt, and died leaving children. It was held the interest which the mortgagee took as between him and the mortgagor -was a complete title, and could not be impeached by the mortgagor or those in privity with him; no one claiming a conveyance for a valuable consideration bona fide in hostility to the mortgage. The court held “the execution and delivery of the mortgage for a valuable consideration operated as an equitable assignment which it is the duty of the court to recognize and maintain.” The mortgagee was held entitled to receive on an executor’s sale the distributive share of the mortgagor as against his children. Oases of an involuntary sale under an execution or an attachment by creditors of legatee’s interests under similar wills are in no way analogous, and the principle involved-in such cases is not involved in this case.

The mortgage executed by Bridget Harney, George H. Harney and Mary A. Harney-Monier, plaintiffs in error, must in equity be regarded as an equitable assignment of the interest of these plaintiffs in error in the land or the proceeds thereof to the extent of the mortgage should the land be sold. The defendant in error under such an assignment had a right to have the land sold to carry out the provisions of the will, unless the plaintiffs in error, Bridget, George, and Mary, should pay defendant in error, and the defendant in error is, entitled to receive the interest of Bridget, George and Mary to the extent necessary to pay the mortgage, if the same is sufficient, and the balance if any will be distributed by the court under the will. We find no error in the decree and it is affirmed.

Affirmed.