Fuller v. John S. Davis' Sons

Mr. Justice Wilkin delivered the opinion of the court: The extended briefs and arguments of counsel on either side seem to proceed with but little reference to the issues made by the bill and answer. Manifestly, the decree of the circuit court cannot be sustained. It is clearly beyond the scope of the bill and the prayer for relief. Neither is it supported by the. evidence. The only attempt to justify the finding and decree is under the general prayer. But a general prayer for relief will only sustain a decree when the facts alleged justify such decree. A decree can never rest upon the prayer alone, whether it be for specific or general relief. There are no sufficient allegations in this bill for an accounting, and certainly none that would justify the one stated by the master. All that is said in the bill on that subject is: “Orator shows that he is entitled to an accounting as to the amount of money the company has collected, from Reed & Zimmerman, and as to ivhat, if any, money ivas collected from Lantz é Crawford.” There is no claim anywhere in the bill that by reason of the wrongful sale in Missouri the complainants will lose the whole amount due on the Reed & Zimmerman notes. On the contrary, the allegation is: “Orator further shows that if said illegal sale is allowed to stand he will be defrauded of his rights to be subrogated as before prayed for, and the chattel mortgage and notes given to the amount of $650, given him by Reed & Zimmerman, as aforesaid, will be invalidated.” And again, the master finds the defendant liable for the whole amount of the Reed & Zimmerman notes, $1250 and interest, upon the conclusion “that on account of the said mortgage sale of the said threshing outfit by the defendant the consideration for the said notes given by said Reed & Zimmerman when the threshing outfit was sold and turned over to them by the said Fuller, Lantz and Crawford has failed, and that said notes cannot be collected from said Reed & Zimmerman.” Reed & Zimmerman are not parties to this action. It is not shown by either the bill or proofs that they are claiming any such defense against the notes, nor can it be seen from the evidence, or even the findings of the master, that they could successfully plead a total failure of consideration to the notes, especially the five held by the complainants. That the Appellate Court properly reversed' the decree of the circuit court is too clear to be seriously denied. Did it err in its directions to the circuit court to dismiss the bill? We think not. In reaching this conclusion we attach no importance to the point made by the defendant in error as to the fraudulent service of process, and that Lantz is a party in interest,—though as to this last contention we are unable to see why this suit in equity is brought for the use, etc. The amended bill was demurrable in that, attempting to allege irregularity and fraud in the chattel sale in Missouri, it states conclusions without averring the facts. .But the insuperable objection to the relief sought on the bill and proofs is, if all that is claimed be admitted, the remedy at law is complete. Complainants’ cause of action, if any, must arise from the conduct of the defendant in relation to the foreclosure sale in Missouri, on July 16, 1897. Admitting that the evidence justified the finding of the master as to that transaction, the mortg'age was at the time subject to foreclosure on the $200 note for the non-payment of the interest thereon as it fell due. There is no finding that any tender of payment of that note was made, nor is there sufficient proof to sustain that allegation. Notices of the sale were duly given, and there is no finding to the contrary. The property was bid in for $250, which was about the amount due on the $200 note, with expenses of sale. The wrong of the defendant, as found by the master, was in not making a fair sale, bidding in the property at an inadequate price and purchasing at its own sale, and, without the consent of the complainants, turning over to Reed & Zimmerman the $400 and $200 notes held as collaterals. In other words, what the defendant did in violation of the complainants’ right was in (after seizing the property under the mortgage, on condition broken,) misapplying it or converting it to its own use without complying with the requirements for its foreclosure, whereby it became liable to the complainants for its value. For any such liability they had a complete and adequate remedy at law. (Waite v. Dennison, 51 Ill. 319.) “Where a court of law is competent to afford an adequate and ample remedy, courts of equity will remit the parties to the courts of law, where the right of trial by jury is secured to them. In such cases either party has a right to demand that the matter of the defendant’s liability be submitted to a jury according to the course of the common law, and unless some special and substantial ground of equity jurisdiction be alleged, and, if necessary, proved, such' as that a lien exists for the money demand which cannot be adequately enforced at law, or that discovery is necessary to a recovery by complainant, or other like equitable considerations affecting the adequacy of the remedy at law, courts of equity will decline to interfere.” County of Cook v. Davis, 143 Ill. 151, and authorities. The doctrine of subrogation, on the allegation of facts in this bill, can have no proper application. There is no relation of principal and surety, guarantors, or other relation between the parties, which would entitle the complainants to succeed to any rights of the defendant. The definition and general principles of the doctrine are given in 24 American and English Encyclopedia of Law, (1st ed. p. 187,) as follows: “Subrogation is the substitution of another person in the place of a creditor or claimant to whose rights he succeeds in relation to the debt or claim asserted, which has been paid by him not voluntarily, and contemplates some original privilege on the part of him to whose place substitution is claimed.” Mr. Bispham, in his work on the principles of Equity, (sec. 335,) says: “Subrogation is the equity by which a person who is secondarily liable for a debt, and has paid the same, is put in the place of the creditor so as to entitle him to make use of all the securities and remedies possessed by the creditor, in order to enforce the rig'ht of exoneration as against the principal debtor, or of contribution against others who are liable in the same rank with himself.” See, also, Bishop v. O’Conner, 69 Ill. 431; Home Savings Bank v. Bierstadt, 168 id. 618. We are of the opinion that in any view of this case the complainants below mistook their remedy, and that the Appellate Court properly directed the dismissal of their bill. Its judgment will accordingly be affirmed. Judgment affirmed.