Bergman v. Bogda

Mr. Justice Waterman. July 24, 1884, Johann Giese, being the owner of certain real property in Cook County, made a mortgage of the same to one Ferdinand Bogda. Minna Giese, the wife of Johann, joined in this mortgage. Ferdinand Bogda then held the joint note, dated July 24, 1884, of Johann and Minna G-iese, for the payment to his. order of $100 on or before three years after date, with interest at six per cent per annum. The mortgage described this note in all respects save that it failed to state for what amount the note was given; it was therefore impossible to tell from the mortgage what sum it was given to secure. The mortgage was duly recorded upon the day of its date, but under the authority of Battenhausen v. Bullock, 11 Ill. App. 665, and Bullock v. Battenhausen, 108 Ill. 28, the record thereof was not notice to creditors and bona fide purchasers of the amount of the indebtedness for which the promissory note, thus incompletely described, was actually given. Thereafter Johann Giese died, and his will was, on October 20, 1886, admitted to probate in the Probate Court of Cook County. The first clause of his will is: “ First, I direct that all my just debts, funeral expenses and expenses of administration upon my estate shall be paid by my executrix hereinafter named, out of my estate.” The second clause reads: “Second, I give, devise and bequeath unto my beloved wife, Wilhelmina Giese, all the rest, residue and remainder of my estate, real and personal and mixed, of whatsoever name and nature, * * * to and for the sole, proper use, benefit and behoof of my said wife and to her heirs and assigns forever.” By the third clause the testator appointed his wife, Wilhelmina, the executrix of his will, and directed that no bonds or surety be required of her for the faithful performance of her duties as such executrix. February 27, 1888, Jacob E. Bergman obtained in the Superior Court of Cook County a money decree against Wilhelmina Giese for the sum of $159, besides $37.15 costs. November 16, 1888, Ferdinand Bogda filed in the said Superior Court his bill for the foreclosure of the aforesaid mortgage, making Wilhelmina Giese and Minna Giese, executrix, defendants; to this bill Jacob Bergman was, by amendment, made a party defendant. June 18, 1889, Bergman filed his cross-bill, setting up the will of Johann Giese, the money decree against Wilhelmina Giese, the issuance of execution thereon, and claimed that thereby his decree became a lien upon the property mortgaged as aforesaid, having-priority over said mortgage, because of the failure of the mortgage to specify the amount of indebtedness which it was intended to secure. Therefore he prayed that the mortgage might be held void as to him. Ferdinand Bogda filed a special demurrer to this cross-bill, and the same "was sustained, "whereupon Bergman elected to stand by his cross-bill and the same was dismissed at his cost. Thereafter Bergman filed an answer to the original bill, in which he set up by way of defense, the matters contained in the cross-bill which had been dismissed. Exceptions filed to this answer were sustained, and the bill having been answered by Wilhelmina Giese, known and served as Minna Giese, executrix, the cause was referred to a master to take proofs and report. Before the master, Bergman testified that at the time his decree against Wilhelmina Giese was obtained, he had neither knowledge nor information of the making of the said mortgage; he also introduced in evidence a copy of the will of Johann Giese. Upon a report favorable to the complainant, the court entered a decree finding the equities of the cause with the complainant, and ordered that in default of thq payment of the amount found due upon the said note, the premises be sold. To reverse this decree this writ of error is prosecuted. In this State a creditor who has by virtue of judgment and execution obtained a lien upon premises, occupies the same position with respect to prior unrecorded conveyances as does a purchaser. Massey v. Wescott, 40 Ill. 160; Martin v. Dryden, 1 Gilm. 216; McFadden v. Worthington, 45 Ill. 363; Milmine v. Burnham, 16 Ill. 362; Col. Buggy Co. v. Graves, 108 Ill. 459; Munford v. McIntyre, 16 Bradw. 316. The record of the mortgage was constructive notice, only, of what appears upon its face. Bullock v. Battenhausen, swpra. There being no amount stated in the mortgage, its record afforded no security as against a judgment creditor of the mortgagor. Appellant is a creditor, not of Johann Giese, the mortgagor, whom he alleges in his answer died seized of the premises in controversy, but of Wilhelmina Giese, the devisee under the will of Johann Giese. Appellant is seeking to hold, not an interest Wilhelmina Giese, the wife of Johann, had in these premises when the mortgage was made, but the interest she acquired as devisee under the will of Jokann Giese. That she had when she joined in the mortgage any interest other than that possessed by her as the wife of Johann, does not appear, and appellant charges that Johann died seized in fee of the premises. Appellant, if a purchaser, would be chargeable with notice of whatever appeared of record in his chain of title, therefore, of the terms of the will. School Trustees v. Wright, 12 Ill. 432-442. Appellant can therefore hold only such interest in the premises as Wilhelmina Giese has; the recording act does not give to him a title freed from the burdens imposed by the will. Turning now to the title of Wilhelmina Giese, put in evidence by appellant, we find that the first, the primary direction of the will of Johann Giese, is, that all his just debts, etc., be paid by his executrix, Wilhelmina Giese, and that it is only the “ rest, residue and remainder ” of his estate which is given to her. Whenever a testator directs, first, that his debts shall be paid, such direction amounts to a charge of the debts upon the real estate in all cases where the real estate is afterward disposed of by the will. Pomeroy’s Eq. Juris., Sec. 1247, note 1; Jones v. Williams, 28 Eng. Ch. R. 156-160; 2 Jarman on Wills, 585; Shallcross v. Tinden, 3 Vesey Jr., 740; Cook v. Dawson, 29 Beav. 123; Lupton v. Lupton, 2 Johns. Ch. 614-624. So too, when an executor is directed to pay debts, and real estate is devised to him, either personally or as executor, the land so devised is charged. Pomeroy’s Eq. Juris., Sec. 1247, note 2; Jarman on Wills, Yol. 2, 596; In re Tonquerey v. Willaume & London R. R., 20 Chan. Div. 465-476; Henvell v. Whitaker, 3 Russell, 343 (Eng. Ch. 343); Graves v. Graves, 8 Sin. 43; Gross v. Kennington, 9 Beav. 150; In re Bailey, L. R., 12 Ch. Div. 266-273; Greeville v. Brown, 7 House of Lords Ca. 688-704; Hays v. Jackson, 6 Mass. 148; Jane Gallagher’s Appeal, 48 Penn. St. 121; Lewis v. Darling, 16 How. (U. S.) 1-8. It is difficult to see how a devise of the “rest, residue and remainder ” of an estate can be thought to be otherwise than subject to all that has gone before; in other words, to be a mere residuum. The premises in controversy were clearly charged with the payment of the testator’s debts; the charge thus imposed was one which it was the duty of the executrix to remove; equitably she took only what would remain after the payment of debts, etc. It is true that in this State the real property of the estates of deceased persons is in all cases secondarily liable for the debts of the decedent; but our statutes do not abrogate the common, law by which the lands may be made by virtue of the provisions of a will, specifically or generally chargeable with the payment of debts and legacies, nor do our statutes remove the lien thus created or exonerate the executor from the discharge of the trust which may be thus imposed. It is insisted that appellant is, under the statute of this State, to be treated as a Iona fide purchaser. A bona fi.de purchaser from an executor or devisee of lands charged generally, only, with the payment of debts, is not bound to see to the application of the purchase money. Jar-man on Wills, YoL 2, 584; Sugden on Vendors and Purchasers, Chap. 18, p. 656; Story’s Eq Juris., Sec. 1131. Is the appellant to be treated as a bona fide purchaser ? The statute of this State merely places judgment creditors and bona fide purchasers upon the same footing as to the effect of the filing for record of deeds, mortgages and other instruments of writing authorized to be recorded; it does not make a judgment creditor a bona fide purchaser, or declare that he shall be so treated. In the matter of the effect of the act providing for the recording of instruments affecting the title to real estate, he is classed along with and upon the same plane as bona fide purchasers. Putting aside the mortgage, in determining the rights of the parties under this will, we are not called upon to consider the rights of the parties under the recording laws of this State. Appellant is neither a bona fide purchaser or a purchaser at all; lie is merely a judgment creditor of Wilhehnina Griese, seeking to reach the interest she took under a will, which interest is subject to and charged with the payment of the debts of appellee. The bill filed in this case, although charging that the mortgage was a first lien and charge upon the premises, did not in terms proceed upon the theory that these lands were charged by the will with the payment of this debt; it was filed for the foreclosure of the mortgage, and was upon its face a good bill. Appellant in the proceedings before the master, introduced all the evidence he would have been en- • titled to give had his answer not been excepted to; a part of this evidence was the will of Johann Giese; this brought into the case, it at once appeared that his judgment against Wilhelmina Giese was not a claim having precedence over that of appellee. The view we have taken renders unnecessary any discussion of the claim that the bill was defective for want of proper parties. The decree ivas erroneous, in that it ordered the defendants to pay the amount thereof. Appellant was under no obligation to discharge the debt to appellee. It, however, appears from the record that the premises were under the decree, on March 25, 1890, sold to appellee for the sum of $909.48, and that said sum being paid over to the master he was enabled thereby to pay in full the amount of the decree and all costs. The error, therefore, has not in any way operated to the prejudice of appellant, and he has not urged such error as a ground for reversal or called our attention to it, although it may be said to be included in the assignment of errors, "‘that the decree is contrary to the law and the evidence.” Errors not argued may be considered as abandoned. W., St. L. & P. Ry. Co. v. McDougal, 113 Ill. 60. The decree of the Superior Court is affirmed. Deoree affirmed.