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Phoenix Mut. Ins. Co. v. Batchen.

to obtain priority over the incumbrance, the cestui que trust must, within the period limited by the statute, be made a party to the suit. We had occasion to consider this question in Bayard v. McGraw, 1 Bradwell, 134, and Clark v. Manning, 4 Id. 649, and need not here repeat the course of reasoning there adopted. See, also, Dunphy v. Riddle, 86 Ill. 22; Crowl v. Nagle, Id. 437; Ridenour v. Shideler, 5 Bradwell, 180.

None of the lien suits were brought against the creditor owning these incumbrances within the six months, and no decree should have been rendered against or to its prejudice. The lien creditors failed to obtain priority over these deeds of trust either as to the buildings or land.

In one of the lien suits, it is true, Francis Bradley was made a defendant in due time, and some question may arise as to whether their making him a party was not sufficient to give the petitioners in that suit a priority over the deeds of trust. He was the payee in the bonds, and there was nothing on record evidencing that the bonds had passed out of his hands. In point of fact, however, they were assigned by him to the Insurance Company on the very day of their date.

The lien creditors knew that these bonds were negotiable securities, and were liable to be assigned. They were thus put upon inquiry, and it was their duty to ascertain whether at the time of bringing their suits the bonds still remained in the hands of the payee. If they desired to obtain a priority over the deeds of trust, they should have used at least reasonable diligence to learn the ownership of the indebtedness thereby secured. The record fails to show that any effort whatever was made to ascertain whether Bradley still held the bonds, nor does it appear that the petitioners may not have actually known of their negotiation to the Insurance Company. What would have been the position and rights of the petitioners had they made due inquiry and failed to ascertain the ownership of the bonds, we need not decide. We see no reason, however, why in that event they might not have availed themselves of the provisions of the chancery code in relation to unknown. owners. Bayard v. McGraw, supra.

The decree entirely fails to notice the eleven $3.000 notes

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Phoenix Mut. Ins. Co. v. Batchen.

and deeds of trust given to secure $33,000 of the purchase money, or to assign them any position whatever in the succession of incumbrances. This feature of the decree is sought to be justified by the evidence of a sale by the trustee under the prior deeds of trust in favor of the Phoenix Mutual Life Insurance Company, whereby, as it is claimed, the purchase money deeds of trust were foreclosed and extinguished. We are inclined to doubt whether there is, as against the holders of the last mentioned deeds of trust, any sufficient evidence of a trustee's sale. The only evidence we find is contained in the oral testimony of Lyman Baird, the trustee. This witness having been produced and examined by the defendants, stated on his cross-examination, in answer to questions put to him by counsel for the petitioners, in substance, that sometime in March, 1877, the eleven Wabash avenue houses were sold at a trustee's sale; that the premises were sold to Aaron C. Goodman, as representing the Phoenix Mutual Life Insurance Company, for $45,000, there being at the time a default in the pay

ment of two successive installments of interest.

Even if it were competent to prove a sale of this character by parol, the evidence would seem to come far short of showing such sale as would foreclose the rights of the holders of the purchase-money incumbrance. It does not show under what deeds of trust the sale took place, or by whom or by whose authority it was made, or that there was any advertisement, or in what manner the sale was made, or that any of the conditions imposed by the deeds of trust were observed, or that any conveyance followed the sale. It is true, in a cross-bill filed in the cause by the Phoenix Mutual Life Insurance Company and other against Homan, Brown & Co., there are distinct averments of the sale, but as the Third National Bank, Jackson its receiver, and Dickerman, the holders of the eleven $3,000 deeds of trust were neither of them parties to that bill, they cannot be affected by its averments or admissions. As the cause, however, must be remanded for further proceedings, additional evidence as to said trustee's sale may be heard.

There is no evidence fixing the date at which the six notes and deeds of trust held by the receiver came into the possession

Phoenix Mut. Ins. Co. v. Batchen.

of the Third National Bank. Mere possession at the date of the hearing does not of itself prove possession at the time the petitions were filed. The burden was upon the receiver to show that the bank obtained said securities prior to the institution of the several lien suits, and in the absence of such proof, it will be presumed that they remained in the hands of Mrs. Barnes until after that date. Austin v. Wohler, 5 Bradwell, 300.

There seems to be sufficient proof that Dickerman came into possession of the five notes and deeds of trust held by him, prior to the institution of either of the lien suits. As he was not made a party, we are inclined to hold, in accordance with the principles already laid down, that the petitioners obtained no priority over his incumbrance. What the rights of the parties would have been, had trustees sales under the prior deeds of trust been sufficiently proved, we are not called upon to decide.

We have carefully examined those portions of the record bearing upon the cross-errors assigned by Homan, Brown & Co., and are of the opinion that the court below decided correctly in allowing the equitable set-off to their claim set up in the cross-bill of the McCords et al., and in refusing to grant the relief prayed for by Homan, Brown & Co., in their supplemental bill.

For the errors above pointed out, the decree will be reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Decree reversed.

INDEX.

ACCOUNT.-See ACTIONS.

PRACTICE.

1. Reference to auditors.-In an action of account the issue before
the court is not whether upon a final settlement the account is balanced,
but whether there should be an accounting. The adjusting of balances
is left entirely with the auditors, and evidence is not admissible before
the court upon the question whether or not profits had accrued or
whether one joint tenant or tenant in common had received more than
his share. Hawley v. Burd,
454

ACCOUNTING.-See CHANCERY.

ACTIONS.

ASSUMPSIT.

1. Common counts.—Where a party entered into a contract to pur-
chase certain land, and paid thereon $1,000, conditioned that if the
vendor failed to make a good title to the land the money was to be re-
funded, he may, upon such failure, recover the money paid, under the
common counts. Wisner v. City of Chicago.

CERTIORARI,

254

2. When proper remedy.-The common law writ of certiorari is the
appropriate mode of bringing up for review the proceedings of highway
commissioners in laying out roads. Deitrick et al. v. Highway Commis-

sioners,
GENERALLY.

90

3. For cutting timber.-In an action under the statute for cutting
timber on the land of another, the plaintiff must aver and prove that he
was the owner in fee. Proof of actual possession with claim of title in
fee will be sufficient to shift the burden upon the defendant to contest the
title. Abney et al. v. Austin,
49

4. For recovery of real property.-If real property be assigned for a
specified purpose, and the condition is not performed in the life-time of
the assignor, there will arise an estate by way of equity of redemption
which will be cast upon the heirs of the assignor, who alone can sue for a
recovery. So, also, if the transaction assume the form of a resulting
trust. Lill v. Brant,

366

5. When cause of, accrues.-Where judgment has been obtained
against the guarantor of a note by the holder, the cause of action against
the maker does not accrue to the guarantor until he has paid such judg-
ment. King v. Hannah,
495

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