Ritchie v. Gibbs.

time of payment without their knowledge or consent, in consideration that another person sign the note, whereby they were discharged, etc., is not a personal plea, so as to form an exception to the rule that where several are sued jointly the judgment must be against all who were served with process or appeared to the action.

3. NOTE-ADDING NEW SURETY-MISJOINDER OF PARTIES.-Where the payee of a note extended the time of payment in consideration of a third person signing as surety, a judgment against such person jointly with other sureties who signed at the time the note was executed, is erroneous. The act by which the last surety became liable, released the former sureties from their liability. They were never jointly liable, and were improperly joined in the action.

APPEAL from the Circuit Court of McLean county; the Hon. OWEN T. REEVES, Judge, presiding. Opinion filed September 17, 1880.

Messrs. WELDON & MCNULTA, for appellant; that the judg ment is erroneous, cited Kimnel v. Shultz, Breese, 169; Blight v. Ashley, Pet. C. C. 16; Erwin v. Devine, 2 Mon. 224; Jenkins v. Hunt, 2 Rand. 446; Tuttle v. Cooper, 10 Pick. 281; Gould's Pl. 393.

Messrs. SLADE & IIADLEY, for appellee, cited Ammons v. The People, 11 Ill. 6; Stoner v. Millikin, 85 Ill. 218; The People v. Harrison, 82 Ill. 84.

HIGBEE, J. The record in this case shows that a joint action was brought by appellee against N. L. Dancy, James A. Doyle, P. M. Stagner and Jacob H. Ritchie.

The declaration counts on a promissory note for $411, executed by defendants to plaintiff on the 19th day of October, 1868, payable three years after date.

All the defendants except Dancy were served with process; Stagner and Ritchie filed pleas, and Doyle was defaulted.

Stagner filed a plea averring in substance that Dancy was principal in the note sued on, and that he and Doyle signed the same as securities only, and that after the maturity of the note, Gibbs the payee extended the time of payment to Dancy one year, in consideration that Ritchie would sign the same as

Ritchie v. Gibbs.

additional security, and that Ritchie then signed the note, and the time for payment was extended to Dancy without the knowledge or consent of the securities, whereby they had become and were discharged from all liability on said note. Plaintiff below filed his replication to this plea, and the cause was tried by a jury. The verdict of the jury found for plaintiff against defendants, Doyle and Ritchie, and assessed his damages at $655.98, and that defendant Stagner was not liable.

The court overruled a motion for a new trial, and rendered judgment against Doyle and Ritchie for the damages assessed by the jury, and discharged Stagner, from which judgment Ritchie appeals to this court.

In an action on a contract against several defendants jointly, the judgment must be against all of the defendants who are served with process or appear to the action unless some of the defendants make a personal defense, as infancy, lunacy, bankruptcy, and the like. 1 Chitty's Pl. 45 and 46; Kimnel v. Shultz, Breese, 169; McConnell v. Swailes, 2 Scam. 571; Giblin v. Thompson, 28 Ill. 61; Gartson v. Strawn, 54 Ill. 402; Felsenthal et al. v. Durand et al. 86 Ill. 230.

The plea upon which the jury found for the defendant Stagner was not a personal plea within the exception to the rule. The very act by which Ritchie became liable upon the note discharged Stagner.

They were never jointly liable upon the contract, and were improperly joined in the action.

It is now contended that because the note was joint and several, a judgment could be rendered against a part and not all of the defendants. But this can only be done where separate suits are brought. The note is joint and several, and the plaintiff must proceed against all jointly, or each separately. Gould v. Steinburg, 69 Ill. 531.

The recovery in this case violates this well-settled rule of law. The judgment is reversed and the cause remanded.

Reversed and remanded.

Greenwalt v. McClure.

LEWIS B. GREENWALT

V.

WILLIAM T. MCCLURE, Adm'r.

JUDICIAL SALE-COMPLIANCE WITH BID-DEFICIENCY ON RE-SALE.-In order to charge a purchaser under a judicial sale, who refuses to complete his purchase, with any deficiency arising on a re-sale, the first sale should be reported to the court, the report confirmed, and an order served on the purchaser to pay the purchase money within a given time, or in default the estate would be re-sold at his risk. So, where an administrator sold land under an order of court, and the report of sale was confirmed by the court, but the purchaser refusing to complete the purchase, a second sale was made without an order of court therefor, the first purchaser cannot be charged with a deficiency arising from such re-sale.

APPEAL from the Circuit Court of Sangamon county; the Hon. C. S. ZANE, Judge, presiding. Opinion filed September 17, 1880.

Mr. N. M. BROADWELL, for appellant; as to the conclusive effect of an order of court approving final settlement by an administrator, cited Snodgrass v. Snodgrass, 57 Tenn. 157; Saewell v. Buckley, 54 Ala. 592.

After final settlement the office of administrator ceases: Collins v. Stephenson, 12 Mo. 178; Garner v. Tucker, 61 Mo.

427.

The capacity of an administrator to sue, can be raised only by plea in abatement: Brown v. Nourse, 55 Me. 230.

Where lands are sold under an order of court, a good title is deemed to be offered, and the purchaser will not be compelled to complete his purchase if it appears a good title cannot be made: Shields v. Allen, 77 N. C. 375.

A re-sale without notice to the first purchaser is an abandonment of the first sale: Hill v. Hill, 58 Ill. 239; Dills v. Jasper, 33 Ill. 262; Galpin v. Lamb, 29 Ohio St. 529.

A sale of more land than was sufficient to raise the amount required, renders the sale void, and justifies the purchaser in refusing to complete the same: Blakely v. Abert, 1 Dana, 185;

Greenwalt v. McClure.

Litchfield v. Cudworth, 15 Pick. 23; Lockwood v. Sturtevant, 6 Conn. 373.

The owner of the fee was a necessary party, and not being before the court, the sale was void: Alvord v. Beach, 5 Abb. Pr. 451; Miller v. Palmer, 55 Miss. 323.

As to real estate of deceased persons, the county court has only limited jurisdiction: Haywood v. Collins, 60 Ill. 328.

In pleading the decrees of a court of limited jurisdiction the facts upon which the decree depends must be alleged: Daken v. Hudson, 6 Cow. 221; Wells v. Mason, 4 Scam. 84. Pleadings are taken most strongly against the pleader: Leman v. Stevenson, 36 Ill. 49.

In order to charge the purchaser with a deficiency arising from a re-sale, there should be a report and confirmation of the first sale, notice to the purchaser, and order of re-sale at his risk: Hill v. Hill, 58 Ill. 239; Dills v. Jasper, 33 Ill. 262; Galpin v. Lamb, 29 Ohio St. 529.

If the purchaser could not be invested with the whole title. assumed to be sold, he will be released from his bid: Miller v. Palmer, 55 Miss. 323; Davine v. Hatfield, 4 Sandf. 468; Kohler v. Kohler, 2 Edw. Ch. 69.

The court must have jurisdiction of the parties: Campbell v. McCahan, 41 Ill. 46.

None are parties, although named in the petition, against whom process is not prayed: Story's Eq. Pl. § 44; Carter v. Ingraham, 43 Ala. 78; Tourville v. Pierson, 39 Ill. 446.

Generally as to the necessity for proper parties: Whitney v. Porter, 23 Ill. 445; Hamilton v. Lockhart, 41 Miss. 460; Marshall v. Rose, 86 Ill. 374; Fell v. Young, 63 Ill. 106; Lawson v. Trustees, 61 Ill. 405.

If a party is heir and executor, he must be made a party in both characters: Carter v. Ingerham, 43 Ala. 78.

The sale being ultra vires was void, and appellant was not bound to complete his purchase: Blakely v. Abert, 1 Dana, 185; Litchfield v. Cudworth, 15 Pick. 23; Lockwood v. Sturte vant, 6 Conn. 373.

If liable at all, it would be only for the difference between the bid made by him and the value of the land at the time of

Greenwalt v. McClure.

the breach of his contract: R. R. Co. v. Evans, 6 Gray, 25; Wilson v. Holden, 16 Abb. Pr. 133; Griswold v. Sabine, 51 N. H. 167; Gilbert v. Cherry, 57 Geo. 128; Burnham v. Roberts, 70 Ill. 19; Field on Damages, § 508; 3 Parsons no Contracts, 231; Sedgwick on Damages, 190; Adams v. McMillin, 7 Porter, 73.

Messrs. McCLERNAND & KEYES, for appellee; that the plea in abatement was properly overruled, it being in part a plea of ne unques administrator and part a plea of plene administravit, cited 3 Chitty's Pl. 942; Puterbaugh's Pl. 148; Judy v. Kelley, 11 Ill. 211.

There can be no final settlement by an administrator until after notice to the heirs: Rev. Stat. 1877, 118.

The difference between the two sales is the measure of damages: 2 Parsons on Contracts, 677; R. R. Co. v. Evans, 6 Gray 25; Allen v. Plummer, 4 Greenl. 258; Pranchet v. Leach, 5 Cow. 506; Gell v. Bicknell, 2 Cush. 358; Robinson v. Hean, 15 Me. 296; Cobb v. Wood, 8 Cush. 228; Mowry v. Adams. 14 Mass. 327; Saladin v. Mitchell, 45 Ill. 79; Ullman v. Kent, 60 Ill. 271; Sanborn v. Benedict, 78 Ill. 309.

The presumption is that no court will pass a decree unless proof of service or notice was actually produced: Redick v. State Bank, 27 Ill. 148; Propst v. Meadows, 13 Ill. 159; Rivard v. Gardner, 39 Ill. 125; Moore v. Neil, 39 Ill. 256; Botsford v. O'Connor, 57 Ill. 72.

The heir is estopped by his silence from objecting that he had no notice: Story's Eq. § 385; Higgins v. Ferguson, 14 Ill. 269.

The interest of the deceased in the lands, and no more, is sold: Rorer on Judicial Sales, & 257, Snodgrass v. Clark, 44 Ala. 198; Barney v. Frowner, 44 Ala. 901; Snidicor v. Mobley, 47 Ala. 517.

The purchaser is presumed to have had notice of the record of a mortgage upon the land: Bingham v. Maxey, 15 Ill. 295; Walden v. Gridley, 36 Ill. 523; Morris v. Hogle, 27 Ill. 150.

DAVIS, J. Appellee, under an order of the County Court of