Oglesby v. Foley

Mr. Justice Boggs. This was a bill in chancery filed in the Circuit Court of Logan County by the plaintiffs in error aga'inst the defendants in error. The plaintiffs, Gillette, Littler and Oglesby sue as executors of the last will of John B. Gillette, deceased. The bill alleges that John D. Gillette, deceased, and Robert B. Latham, were sureties upon the official bond of Wilford D. Wyatt, master in chancery of Logan County. That in the case of Polly Rommell v. Catherine Rommell, being a bill for partition of the lands belonging to the parties, a decree was rendered ordering said Wyatt as such master to sell the premises involved, at pub-' lie sale, for one-third cash in hand, balance in equal payments, due in one and two years, with seven per cent interest, but that said master, after the decree had been signed and approved by the court and filed with the clerk, forged and added the following words to the decree: “ It is further ordered that said master have, and leave is hereby given, to sell and assign the notes executed to secure the deferred payments at their face value and distribute the proceeds,” and that the decree, with such forged addition, was entered of record by the clerk as the decree of the court. That the master, by virtne of the decree, sold the land and for the deferred payments received two notes given by Peter Ophardt and Christian Fink, each for $2,500, due in one and two years from their date, which were secured by mortgages on the land sold. The bill avers that the said master sold and assigned each of said notes to Stephen A. Foley and Ira Davenport and paid only a portion of the money received for the notes to the Eommell heirs and embezzled. the remainder. The bill further alleged that said John D. Gillette, deceased, and Eobert B. Latham, as sureties for the master, were required and did pay to the Eommell heirs the remainder due them and received from such heirs an assignment of their rights and claims in the matter. It is further alleged that Fink and Ophardt paid their notes to Foley and Davenport. . The prayer of the bill is that the assignment of the notes by the master be decreed null and void and that such notes and the mortgages securing- them be decreed to be in full force and be foreclosed, and that Fink and Ophardt be decreed to pay the complainants the amount paid by them on such note, less the sum paid by the master to the Eommell heirs out of the moneys received by the sale of the notes, and that the complainants be subrogated to all the rights of the Eommell heirs. Attached as exhibits to the bill are copies, of the notes and mortgages and of the assignment of the Eommell heirs. A general demurrer was presented to the bill and sustained by the court. The plaintiffs in error refused to amend and the court decreed that the bill be dismissed, to reverse which decree this writ of error is prosecuted. The purchasers of the notes bought under a decree which upon its face authorized the master to thus dispose of them. They purchased in good faith and without knowledge of the alleged forgery. While a decree is the act of the court the prevailing party is charged with the duty of seeing that it is properly enrolled. Stevens v. Cofeen, 39 Ill. 148; Freeman on Judgments, Sec. 77; McRanney v. Coultrer, 39 Miss. 390. Had they performed this duty the alleged forgery would have been discovered. We think that as against the buyers of the land and the purchasers of the notes, the Rommell heirs are bound by the decree as enrolled. The decree of sale was for the benefit of all of the Rommell heirs, and the duty of seeing that the decree was correctly spread of record devolved upon all of them. It is not averred in the bill that they did not know of the alleged forgery or that any of them were minors. It is, however, averred that these heirs accepted from the master a portion of the money received from the sale of the notes. Whether they knew that the money came from that. source is not disclosed by the bill, but it is manifest that they did know they were not entitled to receive money before the maturity of the notes unless they knew that the decree authorized the master to dispose of the notes by sale of them. Taking the bill most strongly against the pleaders it is to be presumed that the Rommell heirs received this money knowing it was not due to them under the terms of the sale but that it had been obtained by the master in the manner authorized by that portion of the decree which is said to have been forged. Under such circumstances the principles of estoppel and of ratification would operate to debar the Rommell heirs of a right of recovery against the buyers or makers of the notes. Ho equities existed in their favor to inure by subrogation to the plaintiffs in error and they had no claims or demands against the makers or purchaser of the notes to assign to the plaintiffs in error. The decree of the Circuit Court dismissing the bill was correct and must be affirmed. Deoree affirmed.