J. R. Parker, for appellee.

MULKEY, J. John Clark, Jr., on the thirteenth of April, 1870, recovered a judgment, in the superior court of Chicago, against John Clark and Albert Brinckerhoff, for $191.50. The defendants in that judgment prayed an appeal to this court, which was allowed "on their filing their appeal-bond therein in the penalty of $400, with security, to be approved by one of the judges of that court." On the twenty-third of the same month an appeal-bond was filed in the cause, sigued by Brinckerhoff, and Curtis C. Meserve as his surety; defendant Clark not joining in the appeal. Brinckerhoff having failed to prosecute the appeal with effect, the same was, on motion of appellee, dismissed by this court at its September term, 1870. The judgment from which the appeal was taken not being paid according to the condition of the bond, and Meserve having in the mean time died, appellee filed the claim, together with the appeal-bond and record of the proceedings, in the county court of Cook county against Meserve's estate. That court, upon the consideration of the claim, entered an order allowing the same. The executrix appealed from that order to the superior court of Cook county, where the cause was tried de novo with like results. She thereupon appealed to the appellate court for the first district, where the judgment of the superior court was affirmed, and by her further appeal the case is now here for review.

It is well settled by the decisions of this court that an appeal, to be ef fective, must be in conformity with the order of the court allowing it. Carson v. Merle, 3 Scam. 169; Watson v. Thrall, 3 Gilman, 69; Ryder v. Stevenson, 3 Scam. 540; Johnson v. Barber, 4 Gilman, 1; Simpson v. Alexander, 5 Gilman, 260; Branigan v. Rose, 3 Gilman, 123; Owens v. McKethe, 5 Gilman, 79; Niagara v. Martin, 42 Ill. 106. On the authority of these cases, the appellant claims that no appeal, either in law or fact, was ever taken; and insists it necessarily follows that the appeal-bond in question was and is an absolute nullity. It may be admitted that no appeal was taken that would have affected the rights of appellee had he ever seen proper to disregard it. He might well have proceeded with the collection of his claim just as if no appeal had been attempted. Or he might have appeared in this court, and had the appeal dismissed on the ground it was not taken by both the defendants; or, in other words, because it was not taken in conformity with the order of the court allowing it. Appellee did so appear, and on his motion the appeal was dismissed, on the ground the record had not been filed within the time prescribed by law. Thus it will be seen that both parties treated the action of Brinckerhoff and Meserve in filing the bond as an appeal from the judgment, and it is so treated and characterized in the proceedings in this court. Recurring to the final order in the case, we find this language: "It is therefore ordered by the court that this appeal be dismissed, and that a procedendo be awarded," etc. It is clear the bond was filed by the parties executing it for the express purpose of taking an appeal from the judgment to this court. The bond itself recites that the ap

peal had been prayed for and obtained, and provides the bond is to be void if the appeal is prosecuted with effect, etc. These facts considered, the question is not whether the appeal was properly taken, for it is conceded it was not, but the question is, ought the appellant in a suit upon the bond to be heard to say that no appeal was ever taken? Upon what principle can she be permitted to question the truth of the recitals in that instrument? The general rule unquestionably is that the maker of a bond is bound by the recitals in it, whether they are true or false. There are some exceptions to this rule, but we do not think this case comes within them. We see no reason why the bond in question is not valid as a voluntary contract. There is certainly no law prohibiting parties from entering into such an obligation, and the expenses incurred by appellee in defending the appeal, on the faith of the bond, affords a sufficient consideration for entering into it. We think the present case comes within the principle of the case of George v. Bischoff, 68 Ill. 236. Judgment affirmed.

(115 III. 498)

MCMILLEN v. LOVEJOY.

Filed January 25, 1886.

JUDGMENT OF SISTER STATE-CONFORMITY TO ACT OF CONGRESS, SUFFICIENT. In an action upon a foreign judgment which is certified in conformity to the act of congress, (1 Starr & C. St. c. 51, pars. 52, 53,) it is immaterial that the transcript so certified shows no placita. The requirement in this court that a transcript must show a placita is with reference to direct proceedings to reverse the judgment or decree, and has no application to collateral proceedings. In collateral proceedings a judgment, however defective in form, will, if the court had jurisdiction, be held conclusive. The form of entry of a judgment depends upon the law of the place of entry; and a foreign transcript, certified in conformity to the act of congress, will be presumed a full copy of the entire record, and sufficient.

Appeal from appellate court, Second district.

J. A. Crain, for appellant.

M. Storkoff, for appellee.

SCHOLFIELD, J. The question here is whether, in an action upon a judgment of a sister state, it is a valid objection to the transcript of the judgment, certified in conformity with the act of congress, when offered in evidence, that it shows no placita. We think it is very clear that it is not. The decisions in this court, holding that the transcript of a judgment or decree must show a placita, were all in direct proceedings to reverse the judgment or decree. But the rule is general, in a collateral proceeding, however defective in form may be the judgment or decree, if the transcript show that it is the adjudication of a court or judge having jurisdiction over the parties and the subject-matter, it will be held conclusive. Phillips v. Webster, 85 Ill. 146; Gunn v. Plant, 94 U. S.

Moreover, in what language a judgment or decree shall be entered up depends upon the law relating to the practice of the courts in the state where it is rendered; and, under the act of congress, when a transcript,

duly certified, is offered in evidence in another state, no questions are open to inquiry except those of jurisdiction. Bimeler v. Dawson, 4 Scam. 537; McJilton v. Love, 13 Ill. 492; Ducommun v. Hysinger, 14 Ill. 249; Zepp v. Hager, 70 Ill. 223.

The transcript here read in evidence is of what purports to be the record of the circuit court of Rock county, in the state of Wisconsin, in a case wherein judgment is rendered by the court for the plaintiff, and against the defendant, for the sum of $1,555 damages, and $22.54 costs and disbursements. The certificates of the clerk and of the judge of the court appended, conform to the requirements of the act of congress, and the conclusion must be that the transcript is a full copy of the entire record, and sufficient. 1 Greenl. Ev. §§ 504–506.

The judgment is affirmed.

(116 Ill. 83)

LAKE v. BROWN and others.

Filed January 25, 1886.

1. USURY-RELIEF LOST BY LACHES-SALE UNDER POWER.

A claim in equity for relief against usury in a loan secured by a trust deed containing a power of sale in case of default, which claim is not made until after a sale under the power has been made by the trustee, without objection from the borrower, is too late. The relief, if any, to which such complainant is entitled, is lost by laches.

2. SAME-APPLICATION OF PROCEEDS, A VOLUNTARY PAYMENT.

Under such circumstances a sale by the trustee, and application of the proceeds upon the indebtedness secured, is deemed a voluntary payment.

3. TRUST DEED-RESIGNATION OF TRUSTEE-APPOINTMENT OF SUCCESSOR IN TRUST.

A written resignation by the trustee of a deed of trust, (which provides for the appointment of a successor on the trustee's refusal to act,) duly signed and acknowledged, and the written appointment of a successor, also signed and acknowledged, constitute such appointee the lawful successor in trust, and clothe him with the same power and authority as was possessed by the original trustee.

4. SAME-WRITTEN RESIGNATION AND APPOINTMENT-ACKNOWLEDGMENT-PROOF OF EXECUTION-WAIVER.

An objection to the introduction of such written resignation and appointment, without preliminary proof of execution, is waived unless taken at the time the papers are introduced. But such papers relate to the "sale, conveyance, or other disposition of real estate," within section 20 of the conveyance act, (1 Starr & C. St. c. 30, par. 21,) and are entitled to acknowledgment thereunder, and such an acknowledgment is a sufficient proof of execution.

5. TRUST DEED TO SECURE NOTE-FAILURE TO INDORSE PARTIAL PAYMENT NO GROUND FOR VACATION OF SALE.

An indorsement of a partial payment upon a note is only an evidence of its payment, and a failure to indorse it is not fatal to a foreclosure of the security of the note. In the absence of other equities, such failure is not ground for vacating a sale under a power therefor in the deed of security.

Appeal from appellate court, Second district.

This was a bill to redeem 240 acres of land conveyed by C. A. Lake to John Magoun, trustee, for the benefit of Milner Brown, on July 3, 1872. Defendant Brown had left with one John Magoun, a friend, in Bloomington, Illinois, some money; Magoun having stated to him that if he had any money to loan, he (Magoun) could loan it for him. There

was no other agreement between Magoun and Brown about the money. Magoun, through one Corydon Weed, loaned to complainant, Lake, July 3, 1872, $2,000, for five years, with interest at 10 per cent., payable semi-annually. Complainant had made an application to Weed, in writing, for a loan of $2,000 on 240 acres of land in Kankakee county. Weed got this sum of Brown's money from Magoun. The loan was secured by a trust deed upon the land to Magoun, as trustee, with a provision in the trust deed that, in case of the failure to act or death of Magoun, then Brown, or the holder of the notes, could appoint a successor in trust, with the same powers as the trustee. Brown knew nothing about the loan until Magoun sent him the papers. Brown did not know Weed personally, nor that Weed had anything to do with it. Magoun for some time collected the interest, and sent it to Brown. Magoun afterwards lost his health, and declined, in writing, to serve further as trustee; and thereupon Brown appointed Hudson Burr as substituted trustee. The note fell due July 3, 1877. On the twenty-first of that month Burr was appointed trustee, the loan not being paid. On the sixth of August, 1877, Burr advertised the property for sale. On the seventh day of September, 1877, at Bloomington, Illinois, the place provided in the trust deed for the sale, at the request of complainant, that sale was postponed, and Burr again, upon that day, advertised it for sale upon the ninth day of October. Acting under the power in the deed, Burr sold the land, and it was purchased by Brown for $2,160, leaving a balance of debt and costs of sale of $534.95. Burr executed and delivered to Brown a trustee's deed, and afterwards Brown commenced proceedings before a justice of the peace to recover possession of the land. Brown obtained a judgment, and Lake appealed. Pending this appeal, the following agreement was entered into, after complainant had been to see Brown, who would have nothing to do with it, and referred him to his attorneys:

"Whereas, on the third day of July, 1872, Chauncy A. Lake, of Kankakee, did execute and deliver to John Magoun, trustee, a trust deed upon N. N. E. t, and S. W. N. E. †, and N. E. N. W., of section 29, and E. S. E. of section 20, all being in town 30 north, of range 12 west, in Kankakee county, Illinois, to secure the payment of one promissory note of $2,000, payable to Milner Brown on July 3, 1877, with ten interest coupons of $100 each, showing semi-annual interest payments attached to said note. And whereas, on the ninth day of October 1877, there was due and unpaid upon said indebtedness the principal note of $2,000, with interest at ten per cent. from July 3, 1877; also one interest coupon of $100, due July 3, 1876; one coupon of $100, due January 3, 1877; one coupon of $100, due July 3, 1877,-all bearing 10 per cent. interest from maturity. And whereas, on said ninth day of October, A. D. 1877, Hudson Burr, as successor in trust of said John Magoun, did sell said land, under and by virtue of the powers contained in said trust deed, to the said Milner Brown for $2,160. And whereas, said Milner Brown has commenced suit against said Lake for possession of the land above described, which suit is now pending in the circuit court of Kankakee county. And whereas, said Lake has paid to said Brown, since said sale, the following amounts of money, to-wit: On December 10, 1877, $210; on January 2, 1878, $90; and on the execution of this agreement has paid to him the additional sum of $100: "Now, in consideration of such payments, the said Milner Brown agrees to continue said case of Milner Brown vs. C. A. Lake until the next term of court of Kankakee county; and if, on or before the first day of the next term of the circuit court of Kankakee county, said C. A. Lake shall pay to said Milner Brown the additional sum of $300, and shall also pay all taxes at that time due and accrued

upon said land, and shall pay the costs of said suit, then said suit is to be dismissed, and, by agreement, said sale under said trust deed is to be canceled, set aside, and wholly held for naught, without prejudice in any way to the rights of either party to the same. But if said C. A. Lake shall fail to pay to said Milner Brown, on or before the first day of the next term of the circuit court of Kankakee county, the said sum of $300, or shall fail to pay all taxes then due and accrued upon said land, then said Milner Brown shall be at liberty to prosecute said suit the same as if this agreement had not been made, and shall also be at liberty and have full right to retain said sum of $400 paid to him by said Lake, and the same shall be payment in full of the balance due to him from said Lake upon said promissory notes, over and above the amount realized from the sale of lands. And in case said Lake shall pay said $300, and the taxes as hereinbefore provided, by the first day of the next term of said court, and the sale aforesaid shall be canceled, then the trust deed aforesaid shall be and remain in full force and effect, as if said sale had never been made; and the amount due thereon shall be the principal sum of two thousand dollars, ($2,000,) and no more, and that sum is to draw interest at 10 per cent. from that date.

[Signed]

"Ratified by Milner Brown."

"C. A. LAKE, Defendant.
"MILNER BROWN,

"By WILLIAMS, BURR & CAPEN, his Attorneys.

Lake failed to pay the money provided for in the agreement, and, at a subsequent term of the court, the forcible detainer case was tried, and Brown obtained judgment. After this, on the nineteenth day of August, 1881, Brown sold the land to one Thomas Daily for $2,400; and Daily went into possession immediately. Daily paid Brown $850 in cash, and, on the seventeenth day of September, 1881, Daily borrowed of Huling $1,600 to finish paying for his land. On the sixteenth day of July, 1881, the bill in this case was filed to redeem; claiming (1) usury in the loan; (2) that Brown could not appoint a successor in trust, and then buy at his own sale; (3) that by the agreement the trustee's sale was set aside.

C. A. Lake, pro se.

Williams, Burr & Capen, for appellees.

TUNNICLIFF, J. If the appellant had any claim to relief on account of alleged usury, he must be considered as having waived it by not asserting his rights till after the land had been sold under the deed of trust. By permitting the land to be sold under a deed of trust given by him, if done in pursuance of authority therein contained, and for the purpose of having the proceeds applied in payment of indebtedness thereby secured, as provided by the deed of trust, it thereby becomes a voluntary payment by the grantor, and, by repeated decisions of this court, his remedy to recover back his usurious interest, or obtain any other relief on account thereof, is gone. Tyler v. Massachusetts Mut. Ins. Co., 108 Ill. 58, and cases there cited.

The objection that there was no right or power in Burr to make the sale as successor in trust of Magoun, the original trustee, cannot be main-: tained. This deed of trust in terms declared that in case of the death of the trustee, "or in case he should decline to act in making sale of the premises as hereinbefore provided, then the said Milner Brown, or the legal holder or holders of said notes, shall have the option of substituting any other person in his stead, and the acts and doings of said party.