Fischer v. Stiefel

Mr. Justice Boggs delivered the opinion of the court: It is urged no proof was produced tending to show the trustee, Eschenberg, had removed from the county of Cook, and the argument is, in the absence of such proof said Eschenberg, as trustee, was a necessary party to the proceeding, and that it was error to proceed to final decree in favor of the defendant in error Butz, as trustee. This is but to question the capacity in which the defendant in error Butz assumed to act. The objection was not raised in any manner by the pleadings. It does not go to the merits of the bill, but only tends to an abatement of the suit. If the plaintiff in error desired to question the capacity of the defendant in error Stiefel as executrix or that of the defendant in error Butz as trustee, it was essential the pleadings should have been so framed as to put such question in issue. The failure to raise the objection by appropriate pleadings is an admission of the capacity assumed by the defendants in error, the executrix and the trustee. (1 Ency. of Pl. & Pr. p. 10; Collins v. Ayers, 13 Ill. 358; Chicago Legal News Co. v. Browne, 103 id. 317; Union Railway and Transit Co. v. Shacklet, 119 id. 232.) The cases cited were actions at law, but the rule is the same in suits in.chancery. 1 Ency. of Pl. & Pr. p. 40; Mazet v. Pittsburgh, 137 Pa. St. 545; Story’s Eq. Pl. 708. The chancellor- did not err in denying the petition of the plaintiff in error, filed after the decree had been entered, to open the decree and allow her to make further defense. The case was pending before the master for the taking of testimony for nearly a year before such hearing was closed and report made to the court. It appeared from the report of the master the plaintiff in error was represented by counsel before the master, and had ample opportunity to produce evidence, if any she had, in her defense, and also that no exceptions were taken to the report of the master. The petition avers the plaintiff in error desired to have the decree opened in order she might interpose as a defense that she did not sign or acknowledge the trust deed. In her answer to the bill she in terms refused to admit or deny that she had executed the trust deed, but demanded strict proof be required of the execution of the instrument, and urged as a defense the note secured by the trust deed was given without consideration, and that the consideration had failed, etc. The master, made the finding in his report that it appeared from the proofs taken before him that the plaintiff in error signed and acknowledged the trust deed, and no exception was taken to the finding. The petition does not deny the petitioner was represented by counsel in the proceedings before the master, nor is it complained in the petition that she was in any way deprived of the right and privilege to produce testimony in her behalf before the master. Furthermore, the petition does not disclose she has any proof except her own statement to offer against the certificate of the notary attached to the deed showing due execution and acknowledgment thereof, by her. The certificate of acknowledgment is .regular and valid upon its face, and nothing appeared to avoid the operation of the general rule that the unaided testimony of a grantor or mortgagor is insufficient to impeach such a certificate. Monroe v. Poorman, 62 Ill. 523; McPherson v. Sanborn, 88 id. 150; Fitzgerald v. Fitzgerald, 100 id. 385. No other alleged errors are assigned. The decree of the superior court is just, and the judgment of the Appellate Court affirming it is affirmed. Judgment affirmed.