Cochrane v. Oliver.

and not for a breach of the contract to convey, and that the suit on such claim should have been brought within five years from the time the land was conveyed to Simons. Iad plaintiff in error sued only on the common counts to recover the money paid, she would probably have been barred by the second section of the statute of 1849, which requires all action founded on promises not in writing to be commenced within five years next after the cause of action accrued. But in the first count of her declaration, she founds her action upon the written contract entered into between the defendant in error and James C. Walker in his life-time. Section one of the same statute provides that "all actions founded upon any promissory note, simple contract in writing, bond, judginent or other evidence of indebtedness in writing * shall be commenced within sixteen years after the cause of action accrued, and not thereafter. Gross' Statutes of 1869, page 430.

*

*

The claim of plaintiff in error, as made in her first count, is for a breach of a contract in writing to convey the land. The contract is set out in full; the payment of the purchase money is averred, so as to entitle the purchaser to a conveyance, and the breach of the contract is shown by the conveyance of the land to another, whereby the liability of the defendant in error to the plaintiff became fixed.

Here is a perfect cause of action set out for a breach of a contract to convey-a simple contract in writing-on which the statute declares a suit may be brought at any time within sixteen years after the cause of action shall have accrued.

In such an action the plaintiff may claim the purchase money paid, with interest, or she may claim less, or she may claim the value of the property at the time it should have been conveyed, and the mere averment of the pleader that by reason of the facts set up in the count, the defendant became liable to pay the plaintiff the sum of money paid by James C. Walker in his life-time cannot change the nature of the cause of action upon which the suit is founded, so as to bar the claim after the expiration of five years. Although her claim may be for the recovery of the purchase money, yet if it is founded in her declaration, as we think it is upon a simple

Russell v. Deer.

contract in writing, the Statute of Limitations gives her sixteen years in which to sue. We think therefore the court below erred in refusing to give the instructions asked for by plaintiff in error, and in giving the one for the defendant in

error.

The judgment will be reversed, and the cause remanded. Judgment reversed.

ROBERT RUSSELL

V.

EDWARD DEER.

MALICIOUS PROSECUTION-PROBABLE CAUSE.-In this action want of probable cause and malice must concur, and where the evidence shows that the defendant acted with the utmost good faith and under the advice of those in authority to whom he applied, and no malice is shown, this action cannot be sustained.

APPEAL from the Circuit Court of Morgan county; the Hon. CYRUS EPLER, Judge, presiding. Opinion filed September 17,

1880.

Messrs. MORRISON, WHITLOCK & LIPPINCOTT, for appellant; cited Beckwith v. Been, 98 U. S. 266; Harpham v. Whitney, 77 Ill. 32; Jenks v. Simpson, 13 Ill. 702; 2 Greenl. Ev. § 453; 1 Hilliard on Torts, 514.

Messrs. BROWN, KIRBY & RUSSELL, for appellee.

DAVIS, J. prosecution. Appellee recovered a Appellee recovered a judgment for $25, to reverse which appellant appealed.

This was an action on the case for malicious

It appears from the record that appellant, on going into his cellar one Sunday morning, found that a jar of butter, some eggs and other groceries which had been placed there had been stolen. On examination he discovered a track at the gate in

Russell v. Deer.

front of his house, leading in the direction of Deer's house which was on the opposite side of the street, and 159 feet north of his house. He followed it in the middle of the street, and found a cloth with salt upon it, similar to the one used in his cellar, and could not follow the track further. On the next Monday morning he applied to the city marshal and stated the facts to him and his suspicions of Deer. The marshal told him to get a search warrant; that he had had the house watched before that time, and that complaints had been repeatedly made to him about Deer.

Appellant had information from a number of persons in the neighborhood as to Deer's character, and he believed him guilty from the circumstances and from what he had heard. After advising with the marshal, he applied to H. O. Cassell, an attorney-at-law, who was acting for the county attorney, and stated the case to him. He wrote the affidavit upon which a search warrant was issued by a magistrate and placed in the hands of an officer, and the house of appellee searched. None of the stolen property was found upon the premises, and the warrant was returned. This suit was then commenced.

The case appears to be wholly without merit. From the beginning to the end of the proceeding appellant acted with the utmost good faith, and under the advice of those in authority to whom he applied, and the evidence shows satisfactorily that there was an entire absence of any malice on his part towards appellee. Want of probable cause and malice must concur to sustain the action for malicious prosecution. Malice having been disproved, the action must fail.

Judgment reversed.

Almon v. Taylor.

Layman v. Willard.

FREDERICK ALMON ET AL.

V.

EVA TAYLOR ET AL.

JURISDICTION-FREEHOLD.-The question of freehold being involved, this court has no jurisdiction of the appeal.

APPEAL from the Circuit Court of Champaign county; the Hon. C. B. SMITH, Judge, presiding. Opinion filed September 17, 1880.

Messrs. TIPTON & RYAN, for appellants.

Mr. FRANCIS M. WRIGHT, for appellees.

PER CURIAM. This case involves a freehold, and the appeal should have been to the Supreme Court.

This court has no jurisdiction to try and decide the cause. Board of Trustees v. Beale, decided at the present term.

Appeal dismissed.

LEWIS LAYMAN

V.

MATTHEW C. WILLARD ET AL.

STATEMENT.-A mortgage was given upon an entire tract of land, and the land subsequently sold in parcels to different purchasers, one of whom paid the purchase money in full, and went into actual possession, and made improvements thereon. Immediately prior to the last payment being made, the holder of the mortgage note released the original mortgage upon the whole tract, and took in lieu thereof separate trust deeds upon the several parcels for amounts aggregating the original indebtedness.

2. MORTGAGE POSSESSION AS NOTICE.-Held, that the appellant's possession was notice to the mortgagee of his rights in the portion purchased by him; that the balance of the purchase money having been paid before the

Layman v. Willard.

last trust deed was recorded, and without notice to appellant of its existence, the rights of appellant were superior to those of the trustee under the new trust deed; and although the releasing of the first mortgage and execution of the second trust deeds may have the effect of continuing the original lien, yet it did not change appellant's right to require that land subsequently sold should be primarily charged with payment of the mortgage debt before his land could be taken.

APPEAL from the Circuit Court of Champaign county; the Hon. C. B. SMITH, Judge, presiding. Opinion filed September 17, 1880.

Mr. FRANCIS M. WRIGHT, for appellant; that a vendor's lien is not assignable, cited Elder v. Jones, 85 Ill. 387; Richards v. Leaming, 27 Ill. 431; Keith v. Horner, 32 Ill. 524.

The interest of the mortgagee is a mere chattel interest: Medley v. Elliott, 62 Ill. 532; Fitch v. Pinckard, 4 Scam. 69; Delano v. Bennett, 90 Ill. 533.

Possession and occupancy of the land was notice of appellant's rights: Doolittle v. Cook, 75 Ill. 354; Brown v. Gaffney 28 Ill. 150.

The land subsequently sold should be held primarily for the mortgage debt: Iglehart v. Crane, 42 Ill. 261: Lock v. Fulford, 52 Ill. 166.

As to the effect of releasing the mortgage upon any land remaining unsold, where the mortgagor has sold a part: Hawhe v. Snydaker, 86 Ill. 206.

Messrs. DAVIS & THOMPSON, for appellees; that the contract. between the mortgagor stipulated only for a warranty deed, and that having been given, there was a full performance, however defective the title of appellant may be, cited Tenny v. Ashley, 15 Pick. 546; Parker v. Parmalee, 20 Johns. 130; Hall v. Hobert, 16 Me. 164; Gazley v. Price, 16 Johns. 268; Clark v. Lyons, 25 Ill. 105; Tharm v. Fickem, 2 Rich. 261; Brethaupt v. Thurmond, 3 Rich. 216; Tremain v. Lyming, Wright, 644; Lloyd v. Farrell, 48 Penn. 73; Jones v. Wood, 16 Pa. St. 25; Williams v. Hathaway, 16 Pick. 488; 2 Sugden on Vendors, 549.