Greenwalt v. McClure.

Sangamon county, obtained by him to sell land to pay debts, offered the land at public sale, and appellant bid the sum of $4,212. His bid being the highest, the land was struck off to him at that price, and the sale, on report to the court, was confirmed. Appellee then tendered to appellant a deed of the premises so sold, and demanded of him payment and security for payment agreeably to the terms of the sale. Appellant refused to accept the deed and complete his purchase, or to have anything further to do with the matter. A few weeks thereafter appellee, without further action of the court, advertised the land again for sale, and under the same order of the court re-sold the land to another purchaser for $2,835, which sale was also reported to the court and confirmed. This action of assumpsit was then brought by appellee, and on the trial below the court rendered a judgment against appellant for $1,395 damages and costs. This judgment cannot be sustained. In Hill et al. v. Hill, 58 Ill. 240, it was held, that in order to charge a purchaser under a decree in chancery, who refuses to complete his purchase, with any deficiency arising on a resale, the master should report the sale and refusal to the court, and after confirmation of the report, a notice of motion should be served on the purchaser, that he may be ordered to pay in his purchase money within a given time, or in default thereof, that the estate purchased by him would be re-sold at his risk. And the order of re-sale on failure to pay the purchase money, or show cause therefor, should direct the property to be re-sold at the bidder's risk and expense.

None of these necessary preliminary steps were taken in this case, but the administrator, after the confirmation of his report of the first sale, and after a refusal of the purchaser to complete his purchase, and without an order of the court for a re sale at the bidder's risk and expense, re-sold the property for a less price, and then brought this action to recover the difference between the two sales. In the case cited, it was held fatal to the claim, that the purchaser previous to making the order of re-sale, had never been called upon by the court to complete his purchase, and allowed an opportunity to show cause for not doing so.

Mester v. Zimmerman.

It is claimed that the rule laid down in the above case does not apply to this case, because the county court does not possess jurisdiction to proceed in such a summary manner, or if it has such jurisdiction that the remedy at law would co-exist with the summary equity remedy. Chapter 3 of Revised Statutes of 1874, under the head of Administration of Estates, confers jurisdiction on the county court to grant decrees for the sale of land to pay debts on petition of the executor or administrator of the estate, and section 101 provides that the practice in such cases shall be the same as in cases in chan

cery.

We think the county court in such cases, under this law, possesses the jurisdiction and power to proceed in the same summary manner as the circuit court proceeds in cases of sales of land under decrees in chancery, and unless the same necessary preliminary steps are taken in cases of refusal of a purchaser to complete his purchase at an executor's or administrator's sale, no recovery can be had of the purchaser for a loss on a re-sale. Before any liability attaches the purchaser must be called upon by the court to complete his purchase, and allowed an opportunity to show cause for not doing so. This is the chancery practice adopted in this state, and the law declares that the same practice must govern in cases arising in the county court.

Judgment reversed.

HENRIETTA MESTER ET AL.

V.

CAROLINE ZIMMERMAN ET AL.

1. WITNESS-COMPETENCY-PARTIES IN INTEREST.-The widow of a mortgagor, and legatee under his will, is not a competent witness for the defendants in an action to foreclose the mortgage, to prove the defense of usury in the notes secured by the mortgage.

2. RENUNCIATION OF INTEREST.-A son of the mortgagor who had been made a party defendant to the foreclosure proceedings, but who by his answer

Mester v. Zimmerman.

disclaimed all interest in the event of the suit, and who had formally renounced the legacy left him by the mortgagor in his will, is a competent witness upon the question of usury, when called by the other defendants.

APPEAL from the Circuit Court of Adams county; the Hon. J. H. WILLIAMS, Judge, presiding. Opinion filed September 17, 1880.

Mr. WM. W. BERRY, for appellants; that a remote, contingent uncertain interest does not disqualify a witness, cited 1 Greenl. Ev. & 408; Clark v. Garmon Ry. & M. 31; Kent v. Mason, 79 Ill. 540; 1 Whart. Ev. § 476; Dyer v. Martin, 4 Scam. 147; Smith v. Newton. 38 Ill. 230; Frink v. McClung, 4 Gilm. 569; N. E. Ins. Co. v. Wetmore, 32 Ill. 221.

Where usury is reserved in a note no interest can be recovered, and all payments of interest will be applied upon the principal: Mitchell v. Lyman, 77 Ill. 525; Reinback v. Crabtree, 77 Ill. 182; Driscoll v. Tannoch, 76 Ill. 154.

A mother of infant defendants, though not a competent witness to establish her own claims, is competent to prove any fact establishing a claim on behalf of minor defendants: Stuart v. Kirk, 69 Ill. 509.

Indorsements of payments upon notes cannot be relied upon to take the case out of the Statute of Limitations: Angell on Limitations, 260.

An action to foreclose a mortgage must be brought within ten years after the cause of action accrues: Rev. Stat. Chap. 83, $11.

No admission of a guardian ad litem will bind the infant: Cochran v. McDowell, 15 Ill. 10.

Affirmative relief will not be granted defendant, unless upon a cross-bill: Mason v. McGirr, 28 Ill. 322.

Messrs. ARNTZEN & MOORE, for appellees; that an action can be maintained on the notes against the witness Mester and the executrix, cited Rev. Stat. Chap. 59, § 11; Ryan v. Jones, 15 Ill. 1; Van Meter v. Love, 33 Ill. 260; Dugger v. Oglesby, 3 Bradwell, 108.

The witnesses were disqualified: 1 Greenl. Ev. § 190; G. &

Mester v. Zimmerman.

C. U. R. R. Co. v. Welch, 24 Ill. 33; C. & R. I. R. R. Co. v. Hutchins, 34 Ill. 108; Ill. Cent. R. R. Co. v. Welden, 52 Ill. 290; Hamilton v. Doolittle, 37 Ill. 473; 3 Phillips' Ev. 45; Stettin v. Sacket, 5 Conn. 258; Forrester v. Gueniman, 1 McCord, 304; Lowman v. Aubery, 72 Ill. 619; Langley v. Dodsworth, 81 Ill. 86; Merrill v. Atkin, 59 Ill. 19; Stewart v. Kirk, 69 Ill. 509.

There was no error in appointing a commissioner, instead of a special master, to make the sale: Dow v. Seely, 29 Ill. 495; Davis v. Davis, 30 Ill. 180; Grubb v. Crane, 4 Scam. 153.

The Statute of Limitations in force at the time the cause of action accrued, governs: Beesley v. Spencer, 25 Ill. 216; Dickson v. C. B. & Q. R. R. Co. 71 Ill. 331.

No cross-bill was necessary: Walker v. Abt, 83 Ill. 226; Crocker v. Lowenthal, 83 Ill. 579; Thielman v. Carr, 75 Ill. 385.

It is not necessary to refer the cause to a master to compute the amount due on the notes: Savage v. Berry, 2 Scam, 545; Scroggs v. Cunningham, 81 Ill. 110.

DAVIS, J. Charles Mester, in his life-time, and Henrietta Mester, his wife, had executed a mortgage and trust deed to secure two notes given by Charles Mester to M. Anton Zimmerman, one for $300, and the other for $400.

Zimmerman having departed this life, Caroline Zimmerman, as the administratrix of his estate, commenced this proceeding in chancery to foreclose the mortgage and trust deed. Henrietta Mester, the widow, and the heirs of Charles Mester, deceased, were made defendants to the bill of complaint filed in the cause. Ferdinand Mester, who is a son of Charles, filed his answer to the bill, disclaiming all right, title and interest whatever in the legacy of five dollars in the bill mentioned, and in all other estate and effects of the said Charles Mester, deceased. The other defendants filed their answers to the bill, setting up the defenses of usury, payment and the Statute of Limitations. Charles Mester, by his last will and testament, bequeathed to his son Ferdinand Mester, the sum of five dollars, and also a note for seventy dollars, given by Ferdinand to his father, and

Mester v. Zimmerman.

the balance of his estate he devised to his wife for life, and at her death directed the same to be sold, and the proceeds to be distributed to his children, excepting Ferdinand Mester, and provided if any child should die while a minor, Ferdinand should be excluded from sharing as an heir in the portion going to such child by the terms of the will.

On the hearing of the cause, the defendants, to sustain the defense of usury, offered the depositions of Ferdinand Mester and of Henrietta Mester, whereupon complainants moved the court to suppress the deposition of Ferdinand Mester, a son and heir of Charles Mester, and also so much of the deposition" of Henrietta Mester, the widow of Charles Mester, as referred to transactions connected with the two notes executed by Charles Mester prior to the death of M. Anton Zimmerman, and so much of the same as related to transactions connected with the note of $300, to secure which the said trust deed was executed to Charles A. W. Zimmerman, trustee, who has since departed this life, prior to the date of the death of said Charles A. W. Zimmerman; which motion was sustained by the court, and both depositions, so far as covered by the motion, were excluded.

On such hearing it was shown by the evidence that letters testamentary were issued to the executor of the last will and testament of Charles Mester, deceased, on the 24th day of February, 1876; that claims to the amount of $86.75 had been filed against his estate; that no claims had been allowed against the estate, and that the estate was worth $3,000 on the day of the hearing, and that the same was unincumbered, except by the instruments exhibited in the cause. A decree of foreclosure was rendered and an appeal taken, and the question raised by the appeal is, whether Ferdinand Mester and Henrietta Mester, or either of them, were competent witnesses for the defendants in the cause.

It is clear to our minds that Henrietta Mester was not a competent witness. She is a party to the record, is directly interested in the result of the cause, and was offered as a witness to sustain the defense of usury interposed by herself and her co-defendants.