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and execution returned nulla bona. The words "as in cases of garnishment" were construed to have reference to both of these acts, and it was said (p. 142): "We think the intention was to give the remedy full and ample as in cases of garnishment, and that the reasonable and true construction is that the remedy is given to the full extent, as recognized in any case of garnishment known to our law." The proceeding may therefore be either concurrent with the original suit, as in cases of attachment, or subsequent thereto, after judgment and execution. In cases where garnishee proceedings are instituted at the time of commencing the suit against the corporation no affidavit is required as to the garnishee, and the provision in the Garnishment act for such an affidavit as is required after judgment and execution has no application whatever. It is not required, in summoning garnishees in cases of attachment, that an affidavit shall be filed against them. As this proceeding was instituted as a case in garnishment under that act no affidavit was required. The statute does not make it a condition, in such case, of issuing garnishee process that the corporation shall be insolvent or that there shall be any evidence of such a condition.
The second objection was, that interrogatories were not filed within the time allowed by law. The interrogatories were on file and appellee was ruled by the court to answer them, and by such rule they were treated as being properly on file. There was no motion to strike them from the files, and they could be filed within such a time as the court should allow. That matter was in the discretion of the court, and the of any avail.
objection is not now
By the third paragraph appellee answered that he was the owner of five shares of the capital stock of the corporation, of the par value of $100 each, for which he was an original subscriber; that at the time of the service of process he had, by agreement entered into with the
corporation, paid to it, in full payment and satisfaction for each and all of his five shares of stock, the sum of $250, and that after such payment there remained nothing due or unpaid to the corporation for said shares of stock. It is insisted that the facts so stated relieved appellee from the liability created by the statute. But even if an agreement with the corporation that shares shall be deemed fully paid when in fact they have not been so paid is valid against the creditor if valid against the corporation, the answer in this case could not be deemed a sufficient plea to a suit by the corporation itself. Appellee stated that he was an original subscriber for five shares of stock, of the par value of $100 each, which amounted to $500. When in his answer he set up a payment he was bound to show a legal payment or satisfaction. This he did not show by alleging the payment of one-half of the debt and its acceptance for the whole without any other consideration. The answer does not set up the purchase of the shares originally at any less than the par value, or any agreement at that time or any consideration for the agreement alleged, but only that at some time before the service of process appellee had settled his liability by paying half the amount. There being no new consideration to support the agreement, a payment of a part was no satisfaction of the whole, even though the corporation agreed to receive it in full payment and satisfaction for the stock. (Curtiss v. Martin, 20 Ill. 557; Zirkel v. Joliet Opera House Co. 79 id. 334; Morrill v. Baggott, 157 id. 240.) On this answer we think that the circuit court properly entered judgment against appellee.
The judgment of the Appellate Court will be reversed and the judgment of the circuit court affirmed.
GEORGE A. KITTREDGE
CHARLES W. NICHOLES et al.
Filed at Ottawa May 12, 1896--Rehearing denied October 9, 1896.
1. EXECUTORS AND ADMINISTRATORS — foreclosure of a mortgage against lands of decedent not barred in two years. The right to foreclose a deed of trust against lands of a deceased person is not barred by failure to exhibit the claim to the probate court for allowance within two years after letters are granted, under the statute providing that all demands not so exhibited shall be forever barred unless the creditors shall find other estate not inventoried or accounted for.
2. ESTOPPEL-does not arise against a mortgagee suffering default in proceeding to sell mortgaged land to pay debts. A trustee in a trust deed and the holder and owner of the note secured thereby are not estopped from foreclosing by appearing and allowing a default in proceedings to sell the land to pay the debts of the deceased mortgagor, where their rights were set out in the petition to sell and the decree protects such interests.
Kittredge v. Nicholes, 60 Ill. App. 604, affirmed.
APPEAL from the Appellate Court for the First District;-heard in that court on appeal from the Superior Court of Cook county; the Hon. JOHN BARTON PAYNE, Judge, presiding.
L. S. HODGES, for appellant:
Where the debt (the principal thing) is gone the incident (the mortgage) is gone also, and a foreclosure in any mode cannot then be had. Pollock v. Maison, 41 Ill. 517;
Harris v. Mills, 28 id. 44.
This rule applies also to trust deeds. Insurance Co. v. White, 106 Ill. 67; Fitch v. Wetherbee, 110 id. 475.
The existence of the debt for the securing of which a mortgage is given is essential to the life of the mortgage, and when the debt is extinguished, paid, discharged, released or barred by the Statute of Limitations the mortgage is gone. Emory v. Keighan, 88 Ill. 482.
Complainant's demand is within the seventh paragraph of section 70, chapter 3, and failure to present the claim as there provided is a bar to the foreclosure of the mortgage, and the debt is thereby extinguished except as to after-discovered assets. Graham v. Vinning, 1 Tex. 639, and 2 id. 433; Clark v. Davis, 32 Mich. 154; Pulliam v. Pulliam, 10 Fed. Rep. 75; Carpenter v. Murphy, 57 Wis. 541; Cooper v. Lyons, 77 Tenn. 596; Jones on Mortgages, 1214, note; Schiel v. Carvillo, 42 Cal. 493; Duty v. Graham, 12 Tex. 427; Gaston v. Boyd, 52 id. 282; Hall v. Bumsted, 20 Pick. 2; People v. Brooks, 22 Ill. App. 594; Bush v. Adams, 22 Fla. 177; Bromwell v. Schubert, 40 Ill. App. 32.
The question has not been directly passed upon by our Supreme Court, but in collateral questions it has been affirmatively recognized. Curry v. Mack, 90 Ill. 606; House v. Trustees, 83 id. 368; Mulvey v. Johnson, 90 id. 457; People v. Gray, 72 id. 343; Thorne v. Watson, 5 Gilm. 29.
BROWN & SNYDER, for appellees:
The statute does not bar a claim not presented within two years, but it simply bars the right to claim a distributive share or participation in the property actually inventoried during that period. Judy v. Kelley, 11 Ill. 211; Bradford v. Jones, 17 id. 93; Peacock v. Haven, 22 id. 23; Sloo v. Pool, 15 id. 47.
Mr. CHIEF JUSTICE CRAIG delivered the opinion of the court:
This was a bill to foreclose a trust deed executed July 20, 1880, by William C. Gibbons and Ellen Gibbons, his wife, to Daniel C. Nicholes, trustee, on a certain tract of land in Cook county, to secure a promissory note which they executed on the same date, for $500, payable to the order of Sydney L. Darrow in three years after date, with interest at the rate of eight per cent per annum, payable semi-annually. The trust deed was properly acknowledged by the grantors therein, and on the 12th
day of August, 1880, recorded in the recorder's office of Cook county.
William C. Gibbons died in Chicago February 27, 1883, and letters of administration upon his estate were granted to Ellen Gibbons, his widow, August 6, 1883, by the probate court of Cook county. The real estate conveyed by the trust deed was inventoried by the administratrix as part of the assets of Gibbons' estate, within two years after the date of her letters of administration, but the indebtedness represented by the note and trust deed was not presented as a claim against the estate in the probate court of Cook county or elsewhere. It is not claimed that the debt secured by the deed of trust was ever paid, but two of the defendants to the bill set up in their answer, as a defense, that Ellen Gibbons, administratrix of the estate of W. C. Gibbons, by proper proceeding in the probate court of Cook county, in pursuance of the statute in that behalf, caused the premises in the trust deed to be sold to pay debts, to which proceeding Sydney L. Darrow and Daniel C. Nicholes, above named, were made parties and entered their appearance but suffered a default, and said premises were sold free from the lien of said trust deed, if any there was. Defendants, further answering, state that all rights which complainants may ever have had, either in their own right or otherwise, were barred by the Statute of Limitations.
It is claimed in the argument that appellees cannot maintain a bill to foreclose the deed of trust upon two grounds: First, they are barred because the claim was not exhibited to the probate court for allowance within two years from the time letters of administration were granted on the estate of William C. Gibbons, deceased; second, because the appearance of Darrow, the holder of the note, and Nicholes, the trustee, in the proceedings to sell real estate to pay debts by the administratrix of the estate of Gibbons and consenting that their default be entered, operated as an estoppel in this suit.