McFarland v. Dey

Mr. Justice Scholpield delivered the opinion of the Court: It is alleged in the bill, but denied in the answer, that the note, to secure the .payment of which the deed of trust in controversy was executed, was assigned by Chandler, the payee, to Bonnell, and by him to Leighton. The assignment by Leighton to the complainant could invest no interest or right which Leighton did not have. The assignment by Hale, who was but a naked trustee, without' any interest in the trust, could invest no interest or title in one who was not beneficially interested in the trust. The case is, in this respect, different from a sale or conveyance by a trustee pursuant to the terms of his deed. The complainant does not claim as a purchaser at the trustee’s sale, by virtue of a deed from the trustee, but merely as assignee of the debt and deed of trust. We are, therefore, of opinion that it was material to prove that the note was assigned by Chandler to Bonnell, and by Bonnell to Leighton. This would have been sufficientlv proved by the production of the note with the proper indorsements; but, as it was claimed the note was lost, secondary evidence of the fact was admissible, if the proper foundation was laid. Ho affidavit or proof of the loss of the instrument was made, except the affidavits of Chandler and Bonnell, made some ten years before the filing of the bill. Waiving the question whether an affidavit made so long anterior to the commencement of a suit can be received as sufficient evidence of the loss of an instrument, to authorize parol evidence of its contents to be received, we come to the more important question, were these affidavits made by persons from whom such an affidavit can be received ? Chandler and Bonnell are not parties to the suit; and, as the assignment by Leighton and Hale was made without recourse, we do not perceive that they are, in any way, interested in the result. They were, when the case was tried, unquestionably competent witnesses. Under the rule recognized in Becker et al. v. Quigg, 54 Ill. 390, then, it was error to receive their affidavits. But, beyond this, even if the affidavits had been properly received as competent evidence of the loss of the note, this Avould not have rendered them competent to prove either its contents or the fact of the indorsements. They, at most, but laid the foundation for the introduction of secondary evidence for this purpose. We are unable to find any legal evidence that the note Avas indorsed. Hale’s testimony is but hearsay, and, even if sufficient to show an indorsement from Chandler to Bonnell, does not show an indorsement from Bonnéll to Leighton. But it was not sufficient for either purpose. He had seen a letter, which he first testifies was from Bonnell, but, on reflection, he corrects himself, and states it was from Chandler, saying that the note belonged to Bonnell, etc., and this is all that he knows upon the subject. The genuineness of the letter is not even proved. We are unable to perceive how the complainant has any interest in this property, save that which he has as assignee of the debt. That interest being denied, it was incumbent on him to prove it. If, indeed, McFarland relied solely on his deed from Ely, we might hold that he was estopped from denying the existence of the debt, and the sufficiency of the proof of the assignment to the complainant; but he does not do so. He relies, also, on a title derived from Mary Sullivan, which, he claims, is paramount to the deed of trust. There is no evidence which shows that Mary Sullivan; or those claiming in her right, are estopped from questioning the right of the complainant to proceed in this way. So far as appears from the evidence, the title derived through her is good, at all events, against eveiy one except the person who has the legal right to control the debt secured by the deed of trust. We express no opinion upon the subject whether Chandler and Hale took the deed of trust with knowledge of Mary Sullivan’s title. As the case, must be remanded, for the reason stated, additional evidence may be taken on that point, also, which -will have the effect of removing any doubt upon the question. The decree of the court below is reversed, and the cause remanded, with leave to introduce such additional competent evidence as the parties may elect. Decree reversed.