Connor v. Wahl , 330 Ill. 136 ( 1928 )

The opinion of the court in this case appears to be based upon a misconception of the issues raised by the pleadings. It states: "The principal question in dispute is as to the priority of liens as between the owners of the trust deeds and notes under loans Nos. 1, 2 and 3." The question raised by the answer of the Wahls is not a question of the priority of liens, but is whether the owners of the trust deeds and notes are entitled in equity to foreclose their trust deeds at all. Voightlander seeks to foreclose trust deed No. 2 as the assignee of Renshaw. The Connors seek to foreclose trust deed No. 3 as the assignee of Renshaw. The answer of the Wahls sets up facts which would be good defenses if Renshaw himself were asking to foreclose them. These defenses, as against Renshaw, are established by the undisputed evidence. The question, therefore, is, Can Voight-lander and the Connors foreclose trust deeds which their assignor, Renshaw, could not?

At common law choses in action were not assignable. By statute in this State promissory notes are made assignable by endorsement thereon, and in equity, and in equity only, such endorsement constitutes an assignment of a trust deed or mortgage given to secure such note. He who buys what is not assignable at law, relying upon a court of equity to protect and enforce his rights, takes it subject to all infirmities to which it is liable in the hands of the assignor. InOlds v. Cummings, 31 Ill. 188, it is said: "We have not met with a single case where remedy has been sought in a court of chancery upon a mortgage by an assignee, in which every defense has not been allowed which the mortgagor or his representatives could have made against the mortgagee himself, unless there has been an express statute authorizing the assignment of the mortgage itself." The assignee of an equitable title, to enforce which he must resort to a court of chancery, takes such title with all the equities and infirmities existing against it and can claim nothing under it in a court of chancery which his assignor could not have claimed. Fortier v. Darst, 31 Ill. 212;Peck v. Bligh, 37 id. 317; Walker v. Dement, 42 id. 272; Sumner v. Waugh, 56 id. 531; Cramer v. Willetts, 61 id. 481;Haskell v. Brown, 65 id. 29; Thompson v. Shoemaker, 68 id. 256;Colehour v. State Savings Institution, 90 id. 152; United States Mortgage Co. v. Gross, 93 id. 483; Silverman v.Bullock, 98 id. 11; Towner v. McClelland, 110 id. 542;Shippen v. Whittier, I 17 id. 282; Mullanphy Savings Bank v.Schott, 135 id. 655; Humble v. Curtis, 160 id. 193;McAuliffe v. Reuter, 166 id. 491; Buehler v. McCormick, 169 id. 269; Lauf v. Cahill, 231 id. 220; Peacock v. Phillips, 247 id. 467; King v. Harpster, 306 id. 202.

This case differs from Mann v. Jummel, 183 Ill. 523, cited in support of the conclusion reached by the majority. In that case the contest in this court was not between the mortgagor and the assignees of the notes secured by the instrument sought to be foreclosed but was a contest between lienors. In the opinion of the court it is said: "The sole contention between the present parties is which shall have the prior lien. They do not disagree as to the material facts, but each insists that under the law applicable to those facts his is the prior security." It is evident from reading the opinion in that case that the question here raised by the Wahls was not presented to the court, as it is not mentioned in the opinion. The question of the priority of liens or of the effect of the recording laws does not enter into the question here involved. Since in this case, in equity, the trust deeds sought to be foreclosed are subject to all the equities. and defenses of the Wahls as against Renshaw, and as the evidence shows that the Wahls have an equitable defense as against him, and as under the unbroken line of authorities in this State any equitable defense which the Wahls have against Renshaw is good as against his assignees, Voightlander and the Connors, neither Voightlander nor the Connors are entitled to a decree of foreclosure, and so no question of priority can arise here. The Appellate Court correctly applied the law to the facts of this case, and its judgment should be affirmed.