Schroeder v. Wolf

Mr. Justice Freeman delivered the opinion of the court. It is apparent from the undisputed evidence that the original trust deed executed by Thomas Cronin September 8, 1894, never having been released of record, was not discharged nor its lien affected by the unauthorized arrangement made by Schumacher in accordance with which he secured a conveyance of Cronin’s equity in the premises in controversy nominally to Maggie A. Horn, his employee, but actually for his own use and benefit, as his subsequent conduct disclosed. When Mrs. Anna Schroeder, deceased, by her agent purchased from Schumacher the note and trust deed made by Dimond she seems to have accepted it and paid the money for it in blind reliance upon Schumacher’s honesty. Had she caused the records to be examined she would have discovered that the Dimond trust deed purported to convey at the most nothing but the equity in the property therein inaccurately described, subject to the original Cronin trust deed owned by appellant. Schumacher had never ventured to release the Cronin trust deed of record, having, so far as appears, no authority to do so and possibly fearing the consequences which might result to him if he did so. . At the time of her purchase, an examination of the record would have shown not only that Dimond had at the best nothing more than an equity in the land covered by his trust deed, but that he did not even possess that, the conveyance to him by Maggie Horn covering a lot in “block 5 in Corwith’s resubdivision” instead of “block 15,” where the land in controversy is located. The Cronin note secured by his trust deed was not paid, nor was the trust deed satisfied by the transaction which resulted in Cronin’s conveying his equity to Maggie Horn for Schumacher. The latter paid Cronin $75 for the conveyance of his equity, but as Cronin’s testimony shows, the note never was paid. The trust deed never was released of record. Ho reason appears, therefore, why appellee could not maintain his bill of foreclosure. The mere marking of the note and trust deed “paid” did not affect the fact, and so far as appears, the deceased, Mrs.- Schroeder, made no ex-animation to ascertain the condition of the title and never knew of the existence of appellee’s trust deed. She was not, therefore, deceived .by Schumacher’s fraudulent and false indorsement on appellee’s note and trust deed, which she never saw. See Jones on Mortgages, 6 Ed., sec. 918, also sec. 967. In Hilliard on Mortgages, Vol. 1, Chap. XVII, sec. 3, it is said that the general rule is that “nothing short of actual payment of the debt or an expi-ess release will operate as a discharge of the mortgage. The lien lasts as long as the debt.” Schumacher as agent of appellee had, so far as appears, no authority to buy Cronin’s equity of redemption for $75, and his subsequent conduct is inconsistent with the view that it was in any way authorized.by appellee, the owner of the incumbrance. Even as between appellee and Cronin, the act of Schumacher in marking the notes and trust deed as “paid” would not operate to release the debt. In McClintock v. Helberg, 168 Ill. 384-392, it is said that “an attorney has no power without express authority to bind his client by a compromise of a pending suit or other matter intrusted to his care. * * * He cannot commute a debt or materially change the security which his client may have without his consent; nor has he the power to assign or sell a claim or judgment of his client without special authority.” There is no evidence tending to show that Schumacher was the agent of appellee to purchase Cronin’s equity nor to write “paid” upon the note and trust deed in his possession. As said in Keohane v. Smith, 97 Ill. 156-160, “The fact of such agency was an affirmative issue resting on defendants to prove.” This has not been done. We find no material error in the decree complained of and it must be affirmed; Affirmed.