Opinion of the Court.

In Stephens v. Bichnell, 27 Ill. 444, the decree barred all equity of redemption in default of payment within four months, and BREESE, J., in the opinion of the court, says: "It is alleged in the bill, and confessed, that the lands mortgaged are not equal in value to the purchase money due. It was then in the discretion of the court to decree a strict foreclosure, the effect of which is to vest the title absolutely in the mortgagee."

In Chickering v. Failes, 26 Ill. 507, as shown by the opinion in Mulvey v. Gibbons et al. supra, the decree was similar to the one then before the court,-a decree nisi, not materially dif ferent from the one presented by this record. In the Chickering case, the decree was held color of title, and from what is there said it is clear that the decree was held and treated as the final order in the case. While it is true that the point here urged was not presented in it or any of the foregoing cases cited, yet these cases do clearly show the practice in the courts. of this State to differ from that in England. In some of them, at least, the decrees were so questioned as to strongly suggest the point, and call for a condemnation of the practice, if not approved.

The decree in a foreclosure proceeding in England, as shown by both of the above named authors on chancery practice, is essentially different from the one appearing in this record and those usually rendered under our practice. There, the decree orders a reference to the master to take an account and tax costs, "and directs that if the same are paid by the mortgagor at such time and place as the master shall fix, the mortgagee is to reconvey the premises, but orders, in default of payment at such time and place, that the mortgagor be absolutely foreclosed from all equity of redemption in the mortgaged premises." (1 Smith's Ch. Pr. p. 532.) "On the day appointed, either the mortgagee, or one duly authorized by him under a power of attorney, attends at the place appointed, to receive the money, and remains there till the expiration of the time appointed. If the mortgage money is not paid, upon an affidavit of being

5-127 ILL.

Opinion of the Court.

duly attended, and of the non-payment of the money, the plaintiff is entitled to an order, on a motion, as of course, that the defendant do from henceforth stand absolutely debarred and foreclosed of and from all right, title, suit, and equity of redemption, of, in or to the said mortgaged premises." (Id. 540.) There, the decree of foreclosure does not purport to be the final order in the case. The amount due, the costs, the time within which and the place at which the payment is to be made, are all left to be ascertained and fixed by the master; and that some further order must follow such a decree, to complete the foreclosure, is manifest.

The decree before us is a final decree, and expressly provides, that in default of payment "all the right, title and interest, both legal and equitable, of said defendants in and to said premises, and every part thereof, shall be and become vested, absolutely and forever, unconditionally, in the said complainant." Although courts of chancery, in this State, are governed by the same practice as courts of chancery in England, or by rules and regulations consistent with such practice, we are unable to see wherein the practice here adopted is so inconsistent with that in England, as laid down by authors on chancery practice, as that it should be condemned. Under the one practice the title is vested in the complainant by an order in the decree; under the other, by a final order made subsequently. When the practice is once established and understood, the rights of the defendant are as well protected by one mode of procedure as the other. That the decree in question is in conformity with the practice in this State, as understood by courts and the profession, we have no doubt; and to unsettle that practice now, would be productive of no good, but might be attended with evil results.

In this view of the case, it is unnecessary to inquire whether or not appellee could maintain this action on the title vested in Holmes B. Kelly by virtue of the mortgage from Thomas B. and Henry B. Ellis to Wheeler. The decree of strict fore

Syllabus.

closure vested the title in Kelly absolutely, and his deed to appellee clothed him with a legal title, which, in the absence. of all proof of right or title in appellant, entitled him to possession, and the judgment of the circuit court was therefore right.

Judgment affirmed.

SPOONER R. HOWELL, Admr.

v.

THOMAS T. MOORES.

Filed at Ottawa January 25, 1889.

1. INSOLVENT DEBTORS-assignment for the benefit of creditors-prior to act of 1877. The provisions of an act concerning voluntary assignments, and conferring jurisdiction therein upon county courts, which took effect July 1, 1877, have no application to an assignment by an insolvent debtor or debtors made before that act took effect.

2. SAME-assignment by partnership firm, and by the individual partners-rule of distribution. Where co-partners make an assignment of their individual and firm property for the benefit of their creditors, in the absence of statutory regulations the assignee will be justified in making such distribution as the assignment calls for, there being no proof of any fraud or improper conduct either in the making of the deed or in the carrying out of its provisions.

3. A and B, composing a partnership firm, made an assignment, in January, 1877, of all the partnership and individual property, to an assignee, for the benefit of their creditors, both of the firm and of the individual partners. The schedule of debts, made a part of the deed of assignment, described three notes, of $500 each, signed severally by each partner, in his own name, as partnership or firm debts. The assignee, in distributing the proceeds of the assets of the firm and of the several partners, treated such notes as firm obligations, and paid dividends on them out of the partnership assets: Held, on bill seeking to hold the assignee's estate liable for not applying the proceeds of the estate of the several partners on such notes, that he was justified in acting as he did under the instrument which defined his powers and duties, and that his estate was not liable for his not applying the assets of the several partners upon the notes.

4. SAME--compensation of assignee. An assignee's account, in the case of a voluntary assignment to him for the benefit of creditors, showed

Syllabus.

credits for his services in excess of that allowed by law for similar services by administrators and executors. On bill filed for an accounting, the master in chancery reduced the assignee's compensation so as to make it the same as that allowed to administrators and executors: Held, that the deduction was proper.

5. JURISDICTION—concurrent—which shall prevail. In cases of concurrent jurisdiction, the court which first obtains jurisdiction will have the precedence.

6. SAME-in chancery-in the matter of trusts, generally. The 12th section of article 6 of the constitution of 1870, gives the circuit courts original jurisdiction of all cases in law and equity, and the legislature has no power to deprive the circuit courts of their equitable jurisdiction in suits to enforce trusts.

7. The jurisdiction of a court of equity for enforcing trusts is not taken away by the fact that a party has a remedy at law, especially when the person seeking relief is entitled to a discovery, or where the trustee is bound to state an account of the trust fund and its proceeds.

8. SAME-administration of estates-probate courts and courts in chancery. The sixth clause of section 70 of the "Act in regard to the administration of estates," which gives the county or probate court jurisdiction of claims against estates, when the decedent has received money in trust for any purpose, can not be regarded as conferring upon those courts exclusive jurisdiction. Their jurisdiction is concurrent with that of courts of equity.

9. SAME-assignment for benefit of creditors—jurisdiction in chancery. A court of equity will entertain jurisdiction to enforce the trust created by an assignment of a debtor for the benefit of creditors, at the suit of one or more of such creditors. The death of the assignee will not deprive the creditor of his right to go into such court to enforce the trust and obtain an accounting.

10. An assignment was made by debtors for the benefit of creditors, prior to the time the act relating to voluntary assignments took effect. The assignee died without having made an account and paying out all the moneys received by him from the estate of the insolvents. A creditor of the insolvents held a claim which was unpaid, and which he had not filed against the assignee's estate. It was held, that the creditor might maintain a bill in equity against the personal representative of the assignee for an accounting and enforcement of the trust.

11. PARTNERSHIP DEBT-what constitutes. Although the several members of a partnership firm sign a note with their individual names, and not by the name of the firm, if it in fact is for a partnership object it will be treated as a partnership debt, in marshaling the assets, as between firm and individual creditors.

Syllabus.

12. SAME-evidence to show the obligation to be for a partnership debt. In case of an assignment by the members of a firm, of their partnership and individual property, for the benefit of their creditors, a note which, on its face, appears to be the individual obligation of one or more of the partners, may be shown, by parol evidence, to have been given for a firm debt; and where there is no such proof, the description of such a note as a firm debt, in the deed of assignment, will be sufficient evidence of that fact to warrant the assignee in distributing the funds accordingly, when no objection is made to such action by the owner of the note, or notice by such owner that the note is the individual obligation of the several partners.

13. COVENANTS FOR TITLE-statutory form. When a conveyance of land, in the statutory form prescribed in section 9 of the Conveyance act, contains the words "conveys and warrants," it will be held to be a deed with covenants of seizin, against incumbrances, and for quiet possession, etc., as specified in that section.

14. VENDOR AND PURCHASER-pre-existing incumbrance- - agreement by vendor to protect against it. Where one conveys land which is subject to a mortgage, and afterward gives his grantee a bond, that the grantor will pay, or cause to be paid, all liens against the land, whether by mortgage or otherwise, within a given time, the grantee will not be bound to pay the incumbrance, but may rely on its payment by the obligors in his bond.

15. SAME-measure of damages-for breach of bond to discharge incumbrance. Where the grantor of land, by a warranty deed, gives to his grantee a bond, conditioned that he will discharge and satisfy a mortgage thereon within a given time, the executory contract embodied in the bond will be a security independent of the covenants in the deed, and for its breach the obligee will be entitled to recover such damages as are the necessary, natural and proximate result of such breach. The measure of his damages when the title is lost by foreclosure sale under the mortgage, will be the actual consideration which he paid for the land, with six per cent interest thereon from the time of eviction.

16. In this case, the purchaser of a tract of land July 1, 1874, conveyed to his grantor, as the purchase price, two town lots, then worth $500, and gave his note for $1000. The deed recited $2000 as the consideration. The prior grantor gave the purchaser a bond, in the sum of $2000, conditioned that the former should pay off and discharge all liens on the land, by mortgage or otherwise. The land was sold under a preexisting mortgage, and the purchaser was evicted in 1878. In a suit to fix the liability of the grantor, the court ordered the purchaser's note of $1000 to be returned, and in addition gave him as damages $500,-the value of the lots,-with six per cent interest thereon from July 1, 1874: Held, that the interest on the $500 should not have been allowed from July 1, 1874, but only from the time of the eviction, in 1878.