to William Loeb & Co. was a proper credit on the mortgage indebtedness secured by the two mortgages, pro rata, to the extent of the property released at the time of its payment; also, that the west 16 feet of lot 20, conveyed by Boos to James R. Ward. were, by virtue of the acceptance of the quitclaim deed to Haerther of November 3, 1894, charged with the payment of the incumbrance on lot 20, to the extent of the value of that 16 feet, and that the release by the trustee, with the consent of Hazle, of that property from the mortgage lien, was an extinguishment of the indebtedness, as against Mrs. Bondy and her husband; that the east 17 feet of lot 21 were, by virtue of the deed of November 3, 1894, to Haerther, charged with the mortgage indebtedness on lot 21, to the extent of the value of said 17 feet; and that Mrs. Bondy and husband were not liable to Schnur, as to it, by virtue of any warranty contained in any deed by them to Haerther. The decree was that the injunction against the judgment on the note and security against lot 20 be made perpetual; that the judgment on the note secured by the trust deed on lot 21 be declared paid, to the extent of 16/33 of $1,500, or $727. and that the balance, amounting to $1,742.73, be a lien against the east 34 feet of lot 21, and that, upon payment by Schnur to Hazle of that amount within 30 days, his property be released, and that, as between himself and the Bondys, the latter were entitled to have that sum paid out of the proceeds of the east 17 feet of said 34 feet, to the extent of its full value, and, if he failed to pay it, they might do so, and be reimbursed, and that, upon the payment of said sum to Hazle, the injunction against the judgment entered on the note secured by trust deed on lot 21 be made perpetual. The Bondys complied with the decree, paying the money into court for the use and benefit of Hazle, and the injunction was ordered to be made perpetual. Hazle and Schnur appealed to the appellate court for the First district, where the decree of the superior court was affirmed. The same parties appeal to this court.

George Hunt, James R. Ward, and Daniel J. McMahon, for appellant Samuel Hazle. William S. Young and John Reid McFee, for appellant Peter Schnur. Beam & Cooke, for appellees.

WILKIN, J. (after stating the facts). Objection is made by counsel for appellant Hazle that the bill of Schnur should have been dismissed because prematurely filed, and the relief prayed by Mrs. Bondy and her husband in their cross bill denied on the ground that they had a complete remedy at law. While it is difficult to see why Schnur should have filed his bill at the time he did, and conceding the Bondys had an adequate remedy at law as against Hazle, yet all parties having, without objection to the juris

diction, submitted their claims to a court of equity, these objections will not now be entertained.

Counsel for appellees contend that "the decree of the superior court should be affirmed for want of a transcript of the record, certified by the clerk of the court to be a true, perfect, and complete copy of the record." We do not regard this point as meritorious. The transcript is in substantial conformity with the requirement of the statute and the rules of this court. No objection was made to it prior to the submission. The substantial questions in the case will therefore be considered on their merits.

1. What are the rights of appellant Hazle, as holder of the mortgage indebtedness due from the Bondys to Delia Metzler? Of course, he occupies no better position than would his assignor if she had continued to hold the notes and mortgages,-not merely. as suggested, because he purchased them after maturity, but because they could not be assigned in equity so as to cut off any valid defenses against the original holder. The Bondys, the mortgagors, claim that Haerther, their grantee, agreed to pay the indebtedness, and that under such agreement the land is liable for the debts, and should be exhausted before recourse should be had to them, and other property belonging to them sold on execution. It cannot be seriously doubted that the mortgagee or her assignee was entitled to pursue either of the several remedies afforded by the law for the satisfaction of the indebtedness, and that the right to resort to an action at law against the makers of the notes was in no way qualified or limited by agreements or transactions between the mortgagors and their grantees, unless the assignee or his assignor in some way assented to such agreement or transaction. An agreement like that claimed to have been made would, if properly entered into, have given the mortgagee an additional remedy, by way of an action at law against Haerther, the grantee (Thompson v. Dearborn, 107 Ill. 93), but would in no way have affected his rights to hold the mortgagors liable in an action against them, or proceed directly against the mortgaged property. It is not claimed that Delia Metzler or Samuel Hazle knew or assented to any such agreement between the Bondys and Haerther,-much less that they, by reason thereof, waived the right to pursue any legal remedy for the satisfaction of the mortgage. Suit on the notes against the makers, or taking judgment against them by confession, was a proper remedy, and, as we have frequently held, might be pursued concurrently with a proceeding to foreclose. Certainly a court of equity would not enjoin the action at law merely because the grantee of the mortgagors had assumed and agreed to pay the debt. But it is contended that Hazle was attempting, in the judgments by confession, to collect $1,500

more than the amount due.

to be a sufficient ground for equitable jurisdiction to enjoin the collection of the judgments, the facts do not sustain the contention. The certificate of deposit for the $1,500 given by Loeb & Co. to Haerther shows on its face that it was not, as contended, deposited or received as a payment on the mortgages. The notes were in the hands of Loeb & Co., and, if the money had been intended as a payment on the debt, it would have been credited upon the notes in the usual way. If a payment, why agree to refund the money to Haerther? The certificate itself explains. The money was "deposited as security on account of release deeds on a portion of the premises described in the trust deeds." Another significant fact tending to show it was not intended as a payment is that the indebtedness was not then due, and did not mature until about two years thereafter. It also appears that neither Haerther, Loeb & Co., nor the Bondys at any time treated the indebtedness as reduced by that or any other amount in the matter of accrued interest. Whether the certificate of deposit was transferred by Loeb & Co. to Boos, and by him to Ward, in good faith, for a valuable consideration,as we think the evidence shows it was,-is to the Bondys a matter of no concern.

Nor can it be said that the release of the 33 feet deeded to Bertha Harder operated as a release of the mortgage indebtedness against other parts of the mortgaged premises, to the extent of the pro rata value of the part released. William Loeb & Co. were the agents of Delia Metzler, the mortgagee, and held the notes and trust deeds for her from the time of their execution until after maturity, when they were assigned to Haerther, and had authority to authorize the trustee to execute a release for any part or the whole of the mortgaged premises. The evidence shows that the release of the 33 feet was made without any notice whatever to Delia Metzler, her agent, or the trustee, that third parties had become interested in other parts of the lots. In fact, at the time of the release,-April 25, 1894,-the records showed no transfer of other parts by Haerther; Schnur's deed not being placed upon record until May 18th following. In the absence of such notice, the mortgagee had the lawful right to make the release, and retain her lien on the remaining part of the whole indebtedness. Stuyvesant v. Hone, 1 Sandf. Ch. 419; 3 Pom. Eq. Jur. § 1226; McMillan v. McCormick, 117 Ill. 79, 7 N. E. 132.

We think the superior court erred in finding that $727 had been paid on the notes secured by the trust deed on lot 21, and that $1,742.73 only remained due thereon. decree should have been for the amount shown to be due, without credit.

The

2. What are the rights of Schnur, the owner of the east 34 feet of this lot, as against

We do not regard the destroyed warranty deed, as it is called, as practically affecting the rights of any or either of the parties to this controversy. It is true, the general rule is that, where a deed of conveyance is executed and delivered, its subsequent destruction or surrender will not have the effect to reinvest the title to the property conveyed in the grantor. Duncan v. Wickliffe, 4 Scam. 452, and authorities cited; Oliver v. Oliver, 149 Ill. 542, 36 N. E. 955. Here, however, the original deed was returned and destroyed by mutual consent of the parties, not for the purpose of reinvesting the title in the grantor, but in order that the property might be conveyed by three deeds, instead of the one. The return and destruction of the deed, and the making of the new ones, were in the nature of correcting the original deed, so as to make the conveyance conform to the wishes of the parties. Under these facts, it will scarcely be claimed that either Haerther or the Bondys could be heard to insist upon the original deed being in force and effect. Schnur neither knew of nor in any way relied upon it in taking title from Haerther, and is in no better position than he would have been to claim rights under it. Of course, if Haerther had obtained no other conveyance of the property, or if it had been shown in any way that reliance was placed upon that deed by Schnur when he purchased, he would be in a position to avail himself of its covenants. But no such claim is made. For still stronger reasons the Bondys, having consented to the destruction of that deed, and executed and delivered others in its stead, cannot now insist upon the alleged agreement contained in it binding Haerther to pay the mortgage debt, as against Schnur, who is admittedly an innocent purchaser, without notice, actual or constructive, of any such agreement. The proof that the original deed contained such an agreement as would bind Haerther and his grantees to pay the incumbrances upon the property is by no means satisfactory,

but, in the foregoing view as to the rights of the parties, it is not necessary to determine that fact.

Nor do we think Schnur should be bound in any way by the quitclaim deed of November, 1894, by the Bondys to Haerther, in which was written the agreement that the latter should pay the mortgage debt. He neither accepted that deed, nor consented to its terms and conditions. It is said he claims title under it. Not necessarily so. He holds the legal title to the east 34 feet of lot 21 by deed from Haerther, who got possession of it by purchase from Mrs. Bondy, and the legal title to the west 17 feet thereof, which was covered by her warranty deed. By the same deed, Haerther also obtained the equitable title to the east 17 feet of the 34 feet; and his grantee, Schnur, may at any time, in a court of equity, obtain the legal title thereto by a decree correcting the admitted mistake in the deed from Mrs. Bondy to his grantor. If Schnur should be compelled to pay the whole amount due against his property, he could only have an action at law against Mrs. Bondy on the covenants in her deed to Haerther, in proportion to the value of the west 17 feet to the whole, because her warranty deed only covers so much of the 34 feet. In equity, however, we are unable to see why he is not entitled, if compelled to pay the debt in order to protect his property, to be subrogated to the rights of the holder of the mortgage and notes against the Bondys. The debt is theirs, and they are primarily liable to pay it, by the terms of their contract. Having failed to do so, if Schnur, their remote grantee, is compelled to pay the debt in order to protect his property, no reason is perceived why he should not have his remedy against them. "One of the most familiar instances of the application of the doctrine of subrogation is where the purchaser of incumbered property, without having assumed the incumbrance, pays it off in order to protect his own interest, or to perfect his own title. such cases it is uniformily held that he is entitled to be subrogated to the position of the incumbrancer in respect of all the latter's securities, rights, remedies, and priorities." 24 Am. & Eng. Enc. Law, 253, and authorities cited in note 2, including the case of Stiger v. Bent, 111 Ill. 328. Also, Champlin v. Williams, 9 Pa. St. 341, as holding: “A purchaser, by parol, of a part of a tract of land, who pays off a mortgage on the whole to prevent a sale, will be subrogated to the benefit of the mortgage, and the judgment recovered thereon." "The test of the right of subrogation is found in answer to the inquiry whether the person who paid the mortgage debt is the one whose duty it was to pay it first of all. If the debt was not primarily his, and he only occupied a position as surety to the mortgagor, he is entitled to be subrogated to the position of the mortgagee, when he has paid the debt." Jones,

In

Mortg. (4th Ed.) § 876; Young v. Morgan, 89 Ill. 199. There is not sufficient evidence in this record to sustain the claim of appellees that they are not primarily liable for the payment of this debt, and certainly nothing upon which to hold Schnur, an innocent purchaser, bound to pay it, whatever might be the rights of appellees against Haerther. The decree of the court below should have been that, if Schnur was compelled to pay the incumbrance against his property, he should be subrogated to the rights of the holder of that indebtedness against appellees.

The release of the trust deed as to the west 33 feet of lot 20, as shown by the evidence, was with the consent of Hazle, the holder of the indebtedness against it, and we see no reason for disturbing the finding of the court below, that thereby the lien was discharged. There is nothing in the testimony tending to show that it was not released for a good and sufficient consideration. We are not to assume by the language, "one dollar and other good and valuable consideration," that a mere nominal consideration was paid for the release.

For the errors indicated, the decree of the superior court must be reversed, except as to lot 20. The cause will be remanded, with directions to dismiss appellees' cross bill, and dissolve the injunction granted upon it, with leave to complainant to suggest damages as provided by the statute in such case. And if appellant Hazle shall proceed upon his cross bill to foreclose, and a decree is entered in his favor for the amount found due him under the foregoing opinion, or any part thereof, against the property of Schnur, that the latter be subrogated, to that extent, to the right of appellant Hazle upon the judgment against appellees upon the notes secured by the trust deed against lot 21. The decree below, as to lot 20, is in all things affirmed. Appellant Hazle should therefore pay one half of the costs of this appeal, and appellees the other half. Affirmed in part, and reversed in part.

LEON et al. v. GOLDSMITH et al.1 (Supreme Court of Illinois. April 21, 1898.) APPEAL-REVIEW-REPLEVIN-INSTRUCTIONSREMARKS OF COUNSEL.

1. Questions of fact settled by the appellate court are not open for review in the supreme

court.

2. An alleged error in refusing to admit in evidence a certain document cannot be reviewed where the record fails to show the contents of the paper.

3. In an action of replevin, wherein the principal question was whether goods taken by the sheriff were the same as those described in the writ, error in an instruction that, if the jury believe that the "goods for which the replevin was brought" were purchased with the fraudulent intent of not paying for them, they should

1 Rehearing denied June 10, 1898.

find for plaintiff, was cured by further instructions that plaintiff could not recover unless the jury believed that the goods taken on the writ of replevin were the identical goods sold by plaintiff to defendant.

Error to appellate court, First district.

Action by Herzog, Goldsmith & Frank against Harry Leon and the Chicago Title & Trust Company, his assignee. From a judgment in favor of plaintiffs, defendants appealed to the appellate court, where the judgment was affirmed. 69 Ill. App. 22. Defendants bring error. Affirmed.

Moses, Rosenthal & Kennedy, for plaintiffs in error. Felsenthal & D'Ancona, for defendants in error.

CARTER, J. The appellate court has affirmed a judgment of the circuit court of Cook county that appellees have and retain 126 certain diamonds which they had replevied from one Harry Leon. After the writ of replevin had been served on Leon, he assigned his property for the benefit of creditors, and his assignee, the Chicago Title & Trust Company, the appellant, thereafter contested the suit with appellees. In August, 1895 (a few months before the suit was commenced), Leon, who was engaged in the jewelry business in Chicago, by false and fraudulent representations as to his financial responsibility and credit, purchased of appellees 128 diamonds, at the price of $6,465.39, for which he gave his promissory Lotes, payable at different dates, of five months and upward after they were given. Appellees, before the maturity of the notes, apprehending danger of loss, sought to rescind the sale, and offered to return the notes and reclaim the property. Leon, while admitting that he had the diamonds, refused to return them, and appellees then took the 126 stones in controversy by replevin. Notwithstanding the affirmance of the judgment below by the appellate court, much of the argument of counsel has been devoted to questions of fact, which by such affirmance have been finally settled. The courts below have found that there was a sufficient tender by appellees to Leon of his notes, and a demand for the return of the diamonds, before suit brought, and that question is not open to review here.

It was not denied by the assignee, on the trial, that Leon obtained by fraud the diamonds which he pretended to purchase from appellees, nor that they had the right to rescind the sale and reclaim their property by replevin if they could find it; but, while insisting that there was no rescission, the main contention of appellant was that the diamonds taken on the writ were not the ones obtained from appellees; and on this appeal the identity of the property must be regarded as the only meritorious question in the case.

Unless caused by some error of law, the judgment of the appellate court is, of course, conclusive of the identity of the

property; that is, that the 126 diamonds taken under the writ were 126 of the 128 diamonds purchased by Leon of appellees.

But appellant contends that the trial court erred in refusing to admit in evidence the proof of claim filed by appellees with the assignee. As bearing upon the identity of the property, it was shown that the 128 diamonds purchased weighed 107 carats, but that the 126 replevied were returned by the sheriff, and receipted for by appellees as weighing only 77 carats. As tending to account for this discrepancy, one of appellees, Goldsmith, testified that, after the 126 diamonds had been delivered to him by the sheriff, he weighed them, and found that they weighed between 20 and 30 carats more than was shown by the sheriff's return. It seems that the proof of claim was filed nearly two months after Goldsmith weighed the 126 diamonds, and found that they weighed 20 or 30 carats more than the weight shown by the sheriff's return; and counsel say that in this proof of claim the weight as returned by the sheriff was given, and not as found when reweighed by Goldsmith, and it is contended that this circumstance would have discredited Goldsmith's testimony on this point. But we cannot determine this question from the record. It is not shown by the bill of exceptions what the contents of this alleged proof of claim were. It is nowhere set out, and in the absence of any knowledge from the record, of the contents of the paper offered, if it was offered, a court of review cannot say there was error in refusing to admit it in evidence. 2 Shinn, Pl. & Prac. § 1023, and cases there cited. Comment is made by counsel upon Goldsmith's inexactness in his testimony as to the weight of these precious stones, but that was a question for the jury.

Appellant insists, also, that there was error in giving to the jury, at the request of the plaintiff, certain instructions, one of which, similar to others, was as follows: "If the jury believe, from the evidence, that the goods for which replevin was brought were purchased by Harry Leon from the plaintiffs, and delivered to the said Harry Leon, and that the plaintiffs have, by a preponderance of the evidence, established the fact that said goods were purchased by the said Harry Leon under false representations made by him, which representations were relied on by the plaintiffs, and the goods sold to Leon on the strength thereof, or if the jury believe that the plaintiffs have, by a preponderance of the evidence, established the fact that said goods were purchased by Leon from the plaintiffs with the fraudulent intent not to pay for the same, then the plaintiffs are entitled to the possession of such goods, and your verdict must be for the plaintiffs." In view of the fact that the principal question, and the one upon which most of the evidence was heard, was whether or not the diamonds taken by the sheriff