Bartoletti v. Hoerner

Mr. Justice Willis' delivered the opinion of the court. The evidence shows that Thomas N. Haskins, who testified in behalf of plaintiffs in error, had been their attorney of record until four or five days before the trial, but that did not disqualify nor render him incompetent to testify in their behalf. Bishop v. Hilliard, 227 Ill. 382. Ñor would he have been disqualified had the record shown that he was their attorney at the time of the trial. It could only have affected his credibility. Glanz v. Ziabek, 233 Ill. 22; Domm v. Hollenbeck, 142 Ill. App. 439. It was error to exclude Haskins’ testimony. There was, evidence showing, that upon plaintiffs in error, Picchiono and Bartoletti, telling Haskins that they understood Hoerner had a deed to the property, Haskins asked Hoerner over the phone about it, and Hoerner referred Haskins to Panneck, and stated that Panneck had the matter in charge, and could tell him all about it. This made Panneck, Hoerner’s agent or representative. Therefore, the testimony as to Haskins’ conversation with him was competent, as was that of plaintiffs in error, Picchiono and Bartoletti. Panneck’s statement was in the nature of original, and not hearsay evidence, relating to the ultimate fact to be proved, and not some other fact. Greenleaf on Evidence, vol. 1, sec. 113. ‘1 The admissions of a third person are also receivable in evidence against the party who has expressly referred another to him for information, in regard to an uncertain or disputed matter.” Greenleaf on Evidence, vol. 1, sec. 182. It was therefore error to exclude conversations of Haskins, Bartoletti and Picchiono with Panneck, had out of the hearing of Hoerner. All the documentary evidence shows Hoerner to be the absolute owner of the property. The assignment of the contract or bond for a deed was unqualified. The deed from the Quinn heirs to Hoerner was absolute, and Hoerner had a final judgment against plaintiffs in error for the possession of the premises. “It is true, that a deed, which is absolute on its face, may be shown by parol to be a mortgage, but the law will presume, in the absence of proof to the contrary, that such a deed is what it purports to be —an- absolute conveyance. He who claims such a conveyance to be a mortgage, must sustain his claim by proof which is sufficient to overcome such presumption of the law, and by proof which is clear, satisfactory and convincing.” Helm v. Boyd, 124 Ill. 370; Williams v. Williams, 180 Ill. 361. The proof shows that about three minutes after Hoerner told Haskins that Panneck had the matter in charge, and could tell him all about it, and before Haskins had conferred with Panneck or plaintiff in error, Hoerner called Haskins and stated to him that he had the deed to the property before him, and that it was a straight deed to himself. This might modify the effect of his former statement. Later, Haskins met Panneck on the street, and said, “Does Hoerner claim to own this property or does he simply hold the deed as security?” and Panneck said, “He is simply holding it for the money advanced.” Upon being asked to furnish a statement of the amount due, he told Haskins he would furnish it later, but could not at that time. While the proof shows that Hoerner said Panneck acted for him, yet two of plaintiffs in error who were present when the contract was assigned to Hoerner, testified that Panneck, who attended to the assignment, was their lawyer at that time, and had been for some time before. There was nothing in the conversation between Haskins and Pan-neck to show that plaintiffs in error promised to pay Hoerner the money advanced. There is some evidence tending to show that the assignment was intended to secure the money Hoerner had advanced, and there is proof that after Wiley became Hoerner’s attorney, he furnished Haskins with a copy of a statement of the account made by Hoerner; but there is no evidence that plaintiffs in error ever offered to, or promised to pay the same, or any part thereof. Hoerner claimed that plaintiffs in error were largely indebted to him at the time of the assignment of the contract for other matters. Plaintiffs in error admitted that they owed him something on account of license, beer, etc, He paid the Quinn heirs the balance due on the contract, and Hunter the amount of the mechanic’s lien; and there was some evidence of an agreement, that, if plaintiffs in error paid him these advancements, and the debts they owed him, they would receive a deed. In any view that can be taken of all the testimony, including that which the court excluded, it does not appear that there was any agreement on the part of the plaintiffs in error to do anything, or to pay any money, and the assignment of the bond does not secure any debt. A mortgage is security for a debt or obligation, and an incident thereto, and it is therefore held that a debt or obligation of some kind is an essential element in a mortgage. There is no contention on the part of plaintiffs in error that there is in existence any debt or obligation which Hoerner can enforce against them. He holds no note, or any other evidence of indebtedness against them, and their proof shows that the only debt he held against them, his book account which they owed him, he gave them credit for on his books before this assignment was, in fact, made to him. It is held in Burgett v. Osborne, 172 Ill. 227, that one seeking to show that a deed absolute in form was intended as a mortgage, must prove that an obligation existed between the parties to the deed, which that instrument was intended to secure. Plaintiffs in error do not contend that there is any obligation in existence that defendant in error can enforce against them, nor do they contend that they have made any payments to defendant in error, or attempted to make any to apply on any such indebtedness. There being no debt which Hoerner could enforce against plaintiffs in error, there was nothing which a mortgage could secure. In Batcheller v. Batcheller, 144 Ill. 475, the court said: “The burden was upon appellants to prove that this agreement was in fact a security for a subsisting indebtedness. It is not enough that the proof shall merely show a parol agreement to re-convey ; there must be a continuing valid indebtedness secured by it, which may be enforced by appellee in an action at law, or it is not a mortgage, whatever else it might be.” In view of the conflict in, and uncertainty of the evidence in this case, it cannot be said that there is any clear, satisfactory and convincing proof as to the execution of the deed for the purpose of securing any indebtedness. Whether a deed absolute is a mortgage or not is a question which depends upon the intention of the parties, to be ascertained from all the circumstances of the case. It must be made to appear clearly that such a conveyance was intended to be a mortgage at the time of its execution. Burgett v. Osborne, supra. We find no evidence in the record sustaining the theory that the parties intended the deed in this case to be a mortgage, and the court did not err in dismissing the bill for want of equity at the close of plaintiffs in error’s proof. The bill was not framed to seek specific performance of a contract of sale, and hence no relief of that kind could have been granted, even if warranted by the proof. The decree is affirmed. Affirmed.