Moshier v. Knox College

Hr. Justice Breese delivered the opinion of the Court:

This was a bill in chancery, filed by Knox College, against William B. Patterson, Timothy Moshier, the appellant, and others, to foreclose a mortgage executed for the security of the purchase-money of the lands described in the mortgage. The bill is in the usual form, alleging the execution of the note and mortgage on the first day of January, 1856, and recording same on the 24th of April, 1857, and the failure to pay the money due. The bill then alleges that the appellant, Moshier, and the other defendants, claim some interest in the premises, or some part of them, as purchasers, mortgagees, or otherwise, which has accrued subsequent to the lien of the mortgage, and subject to that lien. The prayer is in the usual form.

Moshier alone answered the bill, admitting the mortgage and recording of it, as charged in the bill, but denied any knowledge, information or belief, of the amount paid by Patterson, or the sum then due, if any, upon the mortgage, except as derived from the bill. He claimed an interest in the premises by virtue of a deed executed and delivered by Patterson to him on the 5th day of March, 1857, and recorded on the 19th of the same month, and denied that this interest, so created, was subject to the complainant’s lien, and denied that it had accrued subsequent thereto.

A general replication was put in, the case set for hearing, proofs were taken, and the cause heard, and a decree of foreclosure and sale passed. The appellant brings the record to this court and assigns as error thereon: admitting the testimony of Patterson; allowing the complainant to amend his bill at the hearing; overruling appellant’s motion for a continuance; and in decreeing a sale of the premises.

The testimony of Patterson is objected to as incompetent on the ground of interest. It was taken in writing before the master in chancery, and reported to the court. Both parties were present at the examination, and he was cross-examined by the appellant’s counsel. Ro objection was then made to him as incompetent for any cause, nor did the plaintiff in error move to suppress the deposition before the hearing; it was, therefore, too late, on the hearing, to raise the objection. The rule has been long settled that an objection of this nature must be made before the trial of the cause. Kimball et al. v. Cook, 1 Gilm. 424 . In Frink v. McCreery, 4 id. 577, this court said it is a well established and universal rule on the circuit, that all exceptions to depositions which go to their form, or to the incompetency of the witnesses, must be made before the case is called for trial and submitted to the jury. So in the case of Webb et al. v. The Alton Marine and Fire Ins. Co., 5 id. 225, this court said, if the witness was disqualified on the score of interest, the objection should have been taken in the court below, by a direct application to exclude the deposition. A party is not permitted to remain silent while the cause is progressing, and then raise such objections at the hearing, or in the appellate court. Such a practice would occasion much delay and inconvenience, and often operate as a fatal surprise to the adverse party. Corgon v. Anderson, 30 Ill. 95 ; Gregory v. Dodge, 14 Wend. 593 .

But it is said the testimony of Patterson was irrelevant, inasmuch as there was no question of notice of this mortgage in issue by the pleadings, the only fact in issue being the existence of a deed from Patterson to appellant for the land, and the recording of it, prior to the recording of complainant’s mortgage.

Technically, this was so, but the parties on both sides, made the case to turn upon this very question of notice, and that was held and considered by them and by the court, as the only issue between them. It surely was the understanding of the appellant on the trial, that the issue was whether he had knowledge of the complainant’s deed at the time he took a deed, and that it was the only issue. If this was not so, why did the appellant introduce the testimony of Stewart % His testimony was sought for the purpose of showing facts inconsistent with such knowledge. Indeed, the whole case proceeded on this ground. The record shows the whole controversy was to prove notice. The parties had contended all along, as if there was an averment of notice in the bill, so that appellant cannot complain of surprise, because an amendment was made on the hearing to let in proof of hotice. . The proof, by the consent, and without objection by appellant, was already in, and the mere formality of amending the bill to let it in, cannot be erroneous. The reason of the rule that material amendments should not be made on the hearing of a cause, is, that they may surprise the adverse party. Such, we have seen, could not have been the effect in this cause, even if the amendment was a material one. As the controversy had proceeded all along, on the question of notice, it was hardly necessary to amend the bill, so that it should contain the allegation" of notice. The rule requiring the replication to be withdrawn before an amendment can be allowed, relates only to material amendments, which this was not, under the circumstances shown. The party then not being surprised by this amendment, no new matter having been introduced by it, could not claim a continuance on account thereof. The character of the controversy was not changed by the amendment. Martin v. Russell et ux, 3 Scam. 342 .

On the remaining point, that the court should not have decreed a sale of the premises, we have to observe, that the proofs are very strong in favor of the complainants’ right to have the premises sold to satisfy their mortgage. Though there are some discrepancies between the testimony of Patterson and that of Stewart, which we will not attempt to reconcile, there - is sufficient shown to satisfy us that appellant held the title to these premises in trust for Patterson, for after his release to appellant, he sold the land with appellant’s consent, to Gilpin, who executed to Patterson his notes for the purchase-money, which Patterson afterwards assigned to appellant. If he was not such trustee of the title, he was of the money which was left in his hands by Patterson on the sale to him, with which to pay off this claim of appellees, and in either view he is not injured by the decree.

But, apart from all this, the appellees ought to retain this decree, because it is shown the indebtedness was for the purchase-money of the premises, and appellant has not shown he was a bona fide purchaser for a valuable consideration, paying his money at the time on the faith of the title so purchased. It was incumbent on the appellant to show not only that he had a conveyance for this land, legal in form, but that he actually paid for the land. It is not sufficient that he may have secured the payment of the purchase-money. He must have paid it in fact before he had any notice of appellees’ prior equitable title. That is an essential element in the equity, which must exist in order to support appellant’s claim, which he attempts to uphold. If he has not paid the purchase-money, no wrong is done him by taking from him a legal title, which has cost him nothing. The answer does not aver that any part of the purchase-money has ever been paid, and he has failed to show that any was paid. It cannot, therefore, be said that the appellant had any equity to support his legal title, and, consequently, he ought not to retain it against the equitable title of the complainant. This is the view taken by this court in the case of Moon et al. v. Welsh, 18 Ill. 347 , and is applicable to the facts of this case. The justice of the case is manifestly with the appellees, and the decree in their favor was right and must be affirmed.

Decree afivrmed.