Bourke v. Hefter

Mr. Justice Carter

delivered the opinion of the court:

Appellant insists that it was error in the decree to find that appellee was the legal owner of the notes, and that the real owner should have been made a party to the suit. The notes were payable at the office of Greenebaum Bros., which firm consisted of three brothers, two of them being parties to the suit, both individually and as trustees in the trust deed. The notes were payable to the order of the maker, and were by endorsement made payable to appellee. There was no evidence as to the real owner of the notes. They were in the possession of Greenebaum Bros., and were delivered to appellee for the purpose of bringing suit and he was clothed with the legal title to them.- Appellant was not prevented from making any equitable defense she had to the notes, and she was allowed to testify that she never received any consideration for them. The real owner having put the notes in the power of the appellee by having them endorsed to him unconditionally, cannot be heard to complain, and, as we have seen, no harm was done appellant thereby. Had the suit been at law, it would have been brought in appellee’s name. By her answer and cross-bill she treated appellee as the proper party complainant.

It is further urged that appellant did not sign the extension agreement with full knowledge of all the material facts affecting her rights in the premises, so as to-make it binding on her as a ratification of the unauthorized and illegal acts of another in signing her name to-the original note. But the weakness of the appellant’s contention lies in the fact that she did not introduce a particle of evidence on the subject of the extension agreement. Her counsel carefully abstained from calling her to the stand to disprove the evidence that she had signed the same, and did not cross-examine the witnesses for appellee who testified that she did sign the extension agreement. Appellant did not raise the question before the trial court, and there is nothing in the record to show that she did not know what she was doing when she signed the extension agreement or the interest note. These instruments speak for themselves. The extension agreement reads, in part: “And for value received I do hereby agree to pay both principal and interest notes in gold coin of the United States of the present standard of weight and fineness.” The interest note declares that it is the “semi-annual interest installment on note of $850, dated December 6,1889, and payable by extension December 6,1898.” To avoid the effect of these instruments, the signatures to which are undisputed, something more than silence is necessary. Thes,e promissory notes are prima facie evidence, and it is incumbent on’the maker to present her defenses if she would have them considered.

It is also contended that no personal judgment could be entered against appellant for the amount found due on the notes, and that it was error to require appellant to pay the judgment as a condition to setting aside the trust deed. It is claimed that such relief was not prayed O for in the bill, and also that the proper judgment should have been that if appellant did not pay the amount found due, her cross-bill should be dismissed. Appellee’s bill prayed for an accounting, and that appellant be decreed to pay whatever sum shall be found due, with costs and solicitors’ fees. The cross-bill prayed for a cancellation of the trust deed. The court found that appellant was legally bound to pay the amount due on the notes, and as the court also found the trust deed not binding on appellant, no other judgment could have been entered than was entered. Both the bill and cross-bill having- made a case cognizable in equity, equity had power to determine the whole matter and grant proper relief, although such relief could also be obtained at common law. (Kelly v. Galbraith, 186 Ill. 593.) In granting the removal of clouds on title it is in the power of the chancellor to require the complainant to do equity as a condition precedent to any relief.

Very little effort was made by either party to enlighten the court respecting the circumstances under which the notes and deed of trust were executed and the latter acknowledged. The appellee does not complain, although the deed seems to have been set aside on appellant’s unsupported testimony. From the record, scant of evidence as it is, we cannot say that the terms on which the prayer of the cross-bill to set aside the deed of trust was to be allowed were inequitable.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.