delivered the opinion of the court:
The principal question in this case is one of fact. The son, Charles D. C. Dyas, contends, and the circuit court found, that the instrument of November 8, 1905, including the memorandum written on the back thereof, evidences an agreement entered into by the son and his parents, the appellants, providing what amount of the proceeds of the sale of the farm should be paid to the son. On the part of the appellants it is contended that their signatures to the agreement written on the face of this paper were obtained by fraud and circumvention, or that the writing above their signatures was fraudulently and materially altered after their signatures had been attached, and that the writing on the back of the paper was not placed there on the occasion when they attached their signatures, and that no contract was made at that time in reference to the payment to the son of any particular portion of the proceeds arising from the sale of the farm; that the only agreement they made, and the only one they intended to sign, was an agreement in reference to the crop of 1905 and the stock and tools on the farm. We have examined with great care the evidence bearing upon this question. It is very conflicting. The chancellor, however, had the advantage of observing the witnesses as they testified in open court, and we are not able to say that his finding was against the preponderance of the evidence.
It is contended in this court that even if the finding of the circuit court on this question of fact be correct, still the written instrument in question is void as to the mother for the reasons that it lacks mutuality and is without consideration. Upon leave obtained, Charles D. C. Dyas has filed in this court a certified copy of the brief filed by appellants in the Appellate Court, from which it appears that these questions were not presented in that court, and for this reason they will.not be considered by us.
It is then said that the circuit court should have determined whether or not the son was still indebted to the mother, and if so, should have decreed the satisfaction of that indebtedness out of the proceeds of the real estate passing to the son. We think this results from a misconception in reference to the scope of the contest between defendants to a bill of interpleader. In this connection appellants rely principally upon the case of Newhall v. Kastens, 70 Ill. 156. In that case the owner of a building newly constructed filed a bill of interpleader, or a bill in the nature of a bill of interpleader, against the contractor, a sub-contractor and persons who had furnished materials and performed labor for the latter and who were claiming liens against the property for money due them. The purpose of the bill was to ascertain to whom the owner should pay the fund arising from «an unpaid portion of the contract price. The principal question was whether the claims of the parties so performing labor and furnishing materials could be adjudicated in that proceeding, and this court held that as these parties were asserting equitable claims to the fund, the question whether they had claims of that character could properly be determined in the suit even though by the terms of the contract no money was payable by the owner directly to them. The course there indicated as the proper one was followed here, and the circuit court determined that'Mrs. Dyas had no equitable claim upon the $6300 decreed to the' son.j If she ever had any equitable claim upon that money so decreed to the son, she waived and released it by the contract which she entered into on November 8, 1905. 'In a proceeding of this character the question before the court is, “Who is" entitled to the identical property brought into court?” It is not the province of the court in such a proceeding to permit a general accounting between the defendants and decree the payment of the balance found due out of the money so brought into court, which is, in fact, the property of the debtor, in the absence of any equitable claim thereon in favor of the creditor. Dor example: If the son in this case owed the father $500 for borrowed money, evidenced by an unsecured promissory note, the father could not bring that note into court and obtain a decree that it should be satisfied ofit of the proceeds of the sale going to the son. The mother here has no claim against the bank for any part of the $6300, which by the contract is to be paid to the son.j Any claim which she has against her son which might otherwise be an equitable charge upon this sum of $6300 ceased so to be when she entered into the contract of November 8, 1905. It follows that it was not the duty of the court to determine whether or not her son was indebted to her.j Sherman v. Partridge, 4 Duer, (N. Y.) 646; Willson v. Salmon, 45 N. J. Eq. 131; 4 Pomeroy’s Eq. Jur. (3d ed.) sec. 1320.
This precise question has not before been determined by this court, but it was considered by the Appellate Court for the First District in the case of Byers v. Commission Co. 111 Ill. App. 575, where a like conclusion was reached.
It is then insisted that the action of the court in directing the payment to Mrs. Dyas of the money in the hands of the complainant in the bill not claimed by the father or the son is inconsistent with that portion of the decree which directs the payment of the $6300 to the son, for the reason that if the mother had an interest in or a lien upon the fund it amounted to or was for a sum approximating $2000, and that if she was entitled to any portion of the fund it was to such sum. We do not think this follows. She contended that she owned $2000, or had an equitable lien upon approximately that sum out of the one-half of the net proceeds otherwise payable to the son. He denies this as to the sum of $6300 and makes no claim upon the balance of that half, leaving her claim of ownership or lien undenied as to such balance, amounting to about $400. The court sustained the son as to the $6300, for the reason that the right of the mother thereto or therein had been conveyed or released to the son, and the balance was in this case very consistently decreed to her, in the absence of any denial of her right thereto. For the purpose of preserving the right of the mother to seek a remedy against the son to compel the payment of any moneys advanced to him or for the payment of sums advanced by her in the ' payment of interest due on the encumbrance on the farm and for making improvements on the farm, the circuit court inserted in the decree the language following:
“And the court finds that this decree shall be without prejudice to Mary A. Dyas for her claim of $1350 evidenced by a note and for her claim of seven hundred dollars ($700) which is claimed to have been advanced by the said Mary A. Dyas to the said Charles D. C. Dyas, and that said claim or claims cannot be adjudicated in this proceeding for the reason that the same are without equity and can not be made a charge in this suit against the funds now in the bank, and the claim of the said Mary A. Dyas for the said sum of $1350 and the sum of seven hundred dollars ($700) is hereby dismissed for want of equity.”
Mrs. Dyas urges that this is not sufficient to fully protect her rights, and we are of the opinion that there is some basis for this contention, especially in view of the fact that the amounts specified in the quoted language do not seem to be correct. Accordingly the decree of the circuit court will be modified by the elimination of the language just quoted therefrom and by the insertion of the following in lieu thereof, to-wit:
“It is ordered, adjudged and decreed that the right of Mary A. Dyas to recover from Charles D. C. Dyas any money heretofore advanced or paid to him by her, and to recover from him any moneys advanced by her in paying interest on an encumbrance upon the real estate in question or for the purpose of making improvements upon that’ real estate, is not in any way prejudiced by this decree. The question whether he is indebted to her in any sum whatever is not hereby adjudicated.”
The Appellate Court in its opinion reached the conclusion that a novation had taken place by which the son had ceased to be liable to the mother for any sum whatsoever, and by which the father had become liable to pay to the mother the amounts which theretofore had been properly chargeable by her against her son. The judgment of the Appellate Court was correct whether or not such a novation did take place, and it seems to us that the views of the court expressed on that subject were not necessary to the decision of the case, and for this reason the opinion so expressed by the Appellate Court should not be given weight in any litigation hereafter arising between the mother and the son in reference to the amounts which she claims to be due her from him.
The judgment of the Appellate Court and the decree of the circuit court, modified as above indicated, will be affirmed. Each party will pay one-half the costs in this court
Modified and affirmed.