Flanders v. Sherman

By the Court, DowNER, J. This is an appeal from an order of the circuit court, entering satisfaction of a judgment in favor of the appellants for $1778.98. They maintain that there was not sufficient evidence of the payment of the judgment. This depends upon whether or not they had received as part payment thereof three promissory notes of $500 each, made by Henry Sherman, and secured by deed of trust on lands in the state of Illinois. At the time of the entering of the j udgment and the making of the stipulation pursuant to which it was entered, these notes,and others belonging to the defendants, were in the hands of the sheriff, under an order of the court, for collection, having been attached in the suit as the property of the defendants. In the stipulation, among other things, it was agreed in substance as follows : That the defendants should deliver to the plaintiffs the three promissory notes. If it should appear within twenty days from September 28th, 1859, that the notes and deed of trust were true and genuine and such as represented by the defendants, the plaintiffs agreed to receive them in part payment of the judgment. The stipulation then closes with the following': “And it is expressly agreed that the above settlement shall not be made unless the above described • indebtedness of the said Henry Sherman is by him recognized to be true and genuine, and the said deed of trust is good and valid on record, and nothing on record interferes with it in any manner, and it is recognized by said Sherman.” [181] The report of the sheriff and the affidavit of Wilson, the defendants maintain, are sufficient evidence that the notes were delivered to and received by the plaintiffs as part payment under and pursuant to the stipulation. Wilson, in bis affidavit, states, “That by the terms of said stipulation, the defendants are now, and for a long time have been, entitled to have said j udgment satisfied and discharged, as the said defendants have complied in all things with the said stipulation on their part.” This is no statement of facts on which the court could act. The facts from which such conclusions might be drawn, should have been stated, and not the conclusions alone, especially in an ex parte affidavit, in which, it is to be presumed, the affiant presents all the facts in the light most favorable to himself. He further says: “ And the said plaintiffs did receive the said notes and deed of trust, and the same were true and genuine and valid, and there was, at the time of making such stipulation, no other incumbrance upon the real estate embraced in said deed of trust.” This is certainly not stating, nor equivalent to stating, that within twenty days from September 28th, 1859, the defendants exhibited to the plaintiffs proof that Henry Sherman recognized the indebtedness of the notes and deed of trust to be true and genuine, and that the deed was valid on record, and nothing on record interfered with it in any manner; and that they delivered the notes and deed to the plaintiffs. This we think, in substance, they were bound to prove. The report of the sheriff shows that long after the expiration of the twenty days, he, at the request and upon the responsibility of the plaintiffs, sent the notes and trust deed to an attorney at Chicago for collection. This probably was construed by Wilson into a reception of the same by the’ plaintiffs. We cannot, however, regard it in that light. The notes were in the hands of the sheriff as receiver. Both parties had an interest in having them collected. The sheriff sent them to an attorney, and if collected the money is to be returned to the sheriff and disposed of as the court shall di [182] rect. To make a delivery to the plaintiffs, the defendants should have executed some stipulation or writing authorizing the court or sheriff to deliver the notes to the plaintiffs, and tendered it to them within the time stipulated, or done something equivalent to it. We are satisfied the evidence was insufficient to prove that the appellants received the notes as part payment of the judgment. The counsel for the respondent insists that we cannot presume that all the evidence on which the court below acted is in the record. On an appeal from an order, the statute (sea 5, ch. 264, Laws of 1860) directs the clerk to transmit to this court the original papers used by each party on the application for the order appealed from. The presumption is, then, that we have all the evidence on which the circuit court acted. Order of the court below reversed, with costs.