Host of the questions raised by Walker’s assignments of error have been decided by the Supreme Court in the cases of Jenkins, assignee, etc. v. Greenbaum et al. 95 Ill. 11, and Jenkins, assignee, etc. v. The International Banket al. 97 Id. 580.
The case of Jenkins, assignee, etc. v. Greenbaum et al. arose out of transactions between Samuel J. Walker and Greenebknm and Foreman, of a character precisely similar to those disclosed by the present record, and the pleadings and proofs, so far as they related to the question of an accounting and to the defense of usury, were substantially the same as here. The case of Jenkins, assignee, etc. v. The International Bank et al., arose out of transactions between Walker and The International Bank, and was a suit by the bank to foreclose a large number of securities pledged by Walker as collateral to his promissory notes given to the bank for money loaned, thus constituting a part of the very dealings between Walker and the bank involved in the present suit. Those cases and this, as well as several others growing out of Walker’s transactions, were litigated in the court below qpcori passu, and were heard at tliesame time, the case of Jenkins v. The International Bank, and the present case being heard upon the same evidence, so far as applicable.
The right of tlm assignee of Walker to appear and prosecute the writ of error, about which some question has been raised here, is directly affirmed by the cases above cited.
The question as to the validity of the charter of The International Bank, raised by one of Walker’s assignments of error, is decided in Jenkins v. The International Bank, and also in the case of the People v. Loewenthal et al. 93 Ill. 191, which was a direct proceeding by quo viarranto, to test the validity of this very charter. In both of these cases it is held to be valid.
The two cases first cited conclusively establish the right of Walker, at least as against the International Bank, to avail himself under the pleadings in this case of the payments made by him as usurious interest, to the extent of disregarding the usurious agreements, and applying-as payments upon the the principal all moneys paid as interest in excess of the rate allowed by law, so far as such payments have been made in dealings which have not been fully closed up and terminated.
The point that the question of the refusal to apply the usurious payments to the reduction of the principal, was not raised by exceptions to the master’s report, and so cannot be raised here, is fully answered by the case of Jenkins v. The International Bank. In that case as in this, the order of reference expressly directed the master not to consider the question of usurious payments of interest upon any of the notes; and as the master was expressly prohibited from considering the subject of usury at • all, it would have been nugatory for Walker to offer evidence on the hearing before him, bearing upon that question, or to interpose exceptions on the ground of his refusal to disobey the express mandate of the order of reference.
An attempt, however, is made to distinguish Jenkins v. The International Bank from the present case, so far as it bears upon the defense of usury, as presented by this record. In that case the interlocutory decree, by which a reference to the master was ordered, failed to show that the court had, upon any preliminary hearing, found, whether in point of fact, the allegations of usury in the pleadings were sustained by the evidence, and yet in the order of reference the master was prohibited from considering that question. On reference to the original record in the case we find that the interlocutory decree commenced with the following recital; “And now this cause having come on this day to be heard, and the Court having announced the principles governing the same,” etc., after which followed the order referring the case to the» master, and laying down the principles upon which the account should be stated. The Supreme Court in their opinion say: “The circuit court, as we understand this record, without determining whether such payments were made or not, evidently held the inquiry immaterial or incompetent, under the pleadings, and so directed the master not to consider the question.” In a supplementary opinion filed on denying a petition for a rehearing, they say: “We cannot sanction the position of counsel that the court found, as a fact, that no usurious payments were made upon the notes in controversy. * * * Wliat we decide is, that it was error in the circuit court to ignore all questions relating to the allegations of payments of usurious interest. Had the circuit court found that no usurious payments had been made, we might examine the proofs as to such finding. In the absence of such finding, the master should have been directed to ascertain and report the facts in that regard.”
It is insisted that in the present case the court found the . facts which it failed to find in Jenkins v. The International Bank. The interlocutory decree, it is true, recites a hearing of the cause on pleadings and proofs, and that, on such hearing, divers facts appeared to the court to have been proven. In the recital of such facts in the decree is the following-clause : “That said S. J. Walker is not, nor are any of the parties hereto entitled to any deduction or set-off to any of said principal notes, on the ground of usury.” This is not, in terms, a finding that Walker had, in fact, made no payments of usurious interest, nor can we regard it, under all the circumstances of the case, as tantamount to such finding. Walker’s right to a deduction or set-off on the ground of usurious payments, depended, first, upon whether such payments had been properly pleaded, and secondly, upon whether they had been satisfactorily proved.
There was a controversy at the hearing over both these questions, especially the first, and we are quite as well warranted in the conclusion that the circuit court regarded the question of usurious payments as immaterial and incompetent under the pleadings, as that it found the averments on that subject unsustained by the evidence. In the International Bank case, where the pleadings and evidence on this subject were precisely the same as here, the court seems to have ruled out this defense on account of the insufficiency of the pleadings, and the present record fails to show that any different conclusion was reached in this case.
But even if we were to regard the recital in the interlocutory decree as tantamount to a finding that Walker had made no payments of usurious interest, we are clearly of the opinion that such finding is against the evidence. Our examination of the record leaves our minds entirely free from doubt that, on most of the loans made to Walker by the bank during the entire course of their dealings, interest was charged by the bank and paid by Walker at a rate exceeding ten per cent, per annum.
According to the testimony of Walker, the usual rate was two per cent, per month, though sometimes, by special arrangement, it was placed as low as eighteen or twenty per cent, per annum. His testimony is fully corroborated by that of Badger, an expert, who examined the books and papers of the bank with great care, and gave, as a witness, the results of his examination. This evidence is substantially uncontradicted. Loewenthal, the president of the bank, in some parts of his testimony, admits that the bank, in some instances^ charged Walker more than ten per cent, per annum, but to most of the questions put to him on this subject, he professes to have no specific recollection, or, under the advice of counsel refuses to answer.
It follows, then, that the decree, so far at least as it relates to the securities held by the bank, and which the bank, by its cross-bill, is seeking to have foreclosed, is erroneous. Those securities come directly and fully within the cases above cited, and must be governed by the principles there laid down. The same may perhaps be said of the securities held by Loewenthal. The evidence shows that he acted for the bank in a large proportion of its transactions with Walker and it will be presumed that he had actual notice of all of Walker’s equities, at the time he obtained a transfer of said securities to himself. So far as all those securities are concerned, Walker is clearly entitled to avail himself of the defense of usury.
Of the deeds of trust held by other parties as collateral to Walker’s notes, and which are sought to be foreclosed in this suit, all were executed by Walker himself, except the following, viz: the one executed, by Hausbrongh, covering the property claimed by R. M. Earned, which will be particularly noticed hereafter; one for $5,334, executed by Francis A. Eiddle, and held by defendant Leibenstein, and one for $6,000, executed by Henry H. Walker, and held by defendant Loebnitz. There is also a deed of trust for $12,500, executed by Henry H. Walker, and pledged to the bank by Samuel J. Walker, as collateral to two $4,000 notes, one of which has been negotiated to Miller & Liebenstein, and the other is still held by the bank.
There can be no question as to Walker’s right to interpose the defense of usury to all the deeds of trust in which he was the grantor, although in the hands of assignees. The rule is well settled in this State that mortgages and deeds of trust are non-negotiable dioses in action, and that when assigned the assignee takes them subject to the same infirmities or defenses to which they are subject, as between the original parties. Olds v. Cummings, 31 Ill. 188; Fortier v. Darst, Id. 212; Walker v. Dement, 42 Id. 272; White v. Sutherland, 64 Id. 181; Pettillon v. Noble, 73 Id. 567; Silverman v. Bullock, 98 Id. 11; Foster v. Strong, 5 Bradwell, 223. Hnder this rule the assignees hold these securities subject to the same equities and defenses which might have bee i urged against them by Walker, if the bank had continued to hold them. In that case, as we have seen, they would have been subject to reduction or ex-tinguishment by an application to the principal notes of the usurious payments made by Walker, and they must be held to be subject to the same infirmity in the hands of the assignees.
But it is urged, on the authority of the recent case of Silverman v. Bullock, supra, that the deed of trust executed by Eiddle, and the one for $6,000, executed by Henry H. Walker, are subject to a different rule. There is one respect which seems to have been overlooked by counsel, in which the circumstances of these two securities differ essentially from those under consideration in that case, and which, we think, distinguish this case from that. In Silverman v. Bullock, the securities were transferred absolutely to the assignee, but here the transfer was only partial, the bank retaining a residuary interest, after the payment of the principal notes for which they were specifically pledged. Under the several agreements between Walker and the bank, which counsel in their arguments have termed “ blanket ” agreements, these deeds of trust, as well as all the others involved in the present controversy, were deposited by Walker with the bank, not only as specific collaterals securing particular notes, but also as general collaterals securing all the indebtedness of Walker to the bank. There is evidence tending to show that it was the usual practice of the bank whenever it negotiated the principal notes, to retain the collaterals in its own possession, holding than for its own benefit under the “blanket” agreement, as well as for the benefit of the assignees of the principal notes. Accordingly, the court below, in its decree, ordered the payment to the bank, to apply generally on its various claims against Walker, of the entire surplus arising out of all the various collaterals, after the payment of the principal notes, and the satisfaction of two other notes in favor of which the court found certain superior equities. It appears by the decree, that the amount due on the Riddle note and deed of trust, was $8,178.78, while the amount due on the principal note was only $5,020.69, leaving a surplus of $3,158.11. The amount due on the $6,000 note and deed of trust executed by Henry H. Walker, was $8,981,33, while the amount due on the principal note was only $1,984.68, leaving a surplus of $7,996.65. So far as this surplus was concerned, there never was any assignment of these securities by the bank. To this extent, at least, they are to be regarded as still belonging to the bank, and subject to all defenses to which they would be liable if the bank had parted with no interest in them.
The cross-errors assigned by H. A. Kohn & Bros., call in question that portion of the decree which relates to the deed of trust on block 28, in Walker’s sub-division, etc. It appears that among the various collateral securities deposited by Walker with the bank, was a promissory note of Henry H. Walker for $15,000, dated June 22, 1870, payable to his own order and due one year after date, and a deed of trust securing the same, executed by Samuel J. Walker and wife to Francis A. Hoffman, as trustee, conveying said block 28. These papers were first pledged as collateral to S. J. Walker’s note for $7,500, dated June 18, 1870, due four months after date. Again, on the 18th day of January, 1871, they were pledged as collateral to another note of Walkers’ of that date, for $8,100, due ninety days after date ; and again, on the 22d day of November, 1872, they were pledged as collateral to two notes executed by Walker for $5,000 each, both maturing on the 17th day of February, 1873. Of these notes, one is still held by the bank, and the other as is claimed, was, on the day of its date, assigned to H. A. Kohn & Bros.
Sometime in the summer of 1871, and while the note and deed of trust were held by the bank as collateral to the $8,100 note, Williams &■ Thompson entered into negotiations with Walicer for the purchase of said block 28, and also block 30, in the same sub-division, and such negotiations resulted in a purchase of the two blocks by Williams & Thonipson, free of all incumbrances, for the sum of $30,000, and such purchase was eonsummáted on the 22d day of July, 1871, by a conveyance of the two blocks by a deed with full covenants of warranty, executed by Walker and wife to Williams & Thompson, and the payment by Williams & Thompson of $10,000 of the purchase-money in cash, and the securing of the balance, which they have since paid.
On this branch of the case, two leading questions of fact were presented, upon which considerable testimony was taken, viz: 1, whether the two $5,000 notes represente^ a new and independent indebtedness, or were merely a renewal and continuation of the indebtedness represented by the $7,500 and $8,100 notes ; and 2, whether the deed of trust was in fact released and discharged by Hoffman, the trustee, prior to the conveyance to Williams and Thompson.
It will be observed that the collateral notes secured by the trust deed at the date of the purchase by Williams and Thompson matured one month prior to the conveyance to - them, and that the two $5,000 notes for which it is claimed that these collaterals are now held, were not executed until one year and four months after the conveyance ; so that, if these notes represented a new and independent indebtedness, the collaterals were not pledged to secure such indebtedness until long after they became overdue, and long after the rights of Williams and Thompson had accrued. These facts, coupled with the further fact, of which there seems to be ample proof, that the bank had actual notice of the conveyance to Williams and Thompson at the time it was made, would, of themselves, be sufficient to justify the decree that the deed of trust was not alien on block 28 as against Williams and Thompson.
The evidence by which it is sought to identify the indebtedness secured by the two $5,000 notes with that covered by the former notes is, to our minds, entirely unsatisfactory. - Ho witness who has any knowledge of the fact swears to such identity, while Walker, the only witness examined who has any actual knowledge of the matter, swears that, according to his recollection, the $8,100 note was paid or otherwise secured, and the $5,000 notes given for an entirely different consideration.
The evidence principally relied upon to establish the identity claimed, is that of Loewenthal, the president of the bank, who disclaims having any actual recollection of the fact, and Badger, the expert, who has no knowledge of the transactions of the bank, except such as he has derived fj;om its books, papers and memoranda. Both of these witnesses testify to mere conclusions which they have formed from an examination of the books and papers in the possession of the bank. Testimony of this character, even if it could be regarded competent for such a purpose, would be entitled to very little weight. The conclusion to be drawn from an inspection of the notes themselves is against the theories of these witnesses, and so far as the record discloses the written memoranda upon which their opinions are based, we fail to find any clear and distinct evidence on the subject one way or the other.
As to the other question, we think the evidence clearly preponderates in favor of the conclusion that, prior to the conveyance to Williams & Thompson, the deed of trust was released by Hoffman,-the trustee. It appears that during the negotiations, Walker furnished Williams & Thompson with an abstract of the title which showed the existence of the deed of trust on block 28, and also an incumbrance on block 30. These Walker undertook to have removed, and to enable himself to do so, as he testifies, lie went to Hoffman, who at that time was the president of the dank, and, as he recollects, either paid the indebtedness for which these incumbrances were held, or secured it in some other way satisfactory to Hoffman, and procured from Hoffman a release of the incumbrances and delivered it to Williams & Thompson. Tie further testifies that at that time he was frequently making sales of property covered by deeds of trust, and that he generally arranged the matter by the payment of the money, or the substitution of other satisfactory security.
Thompson, also, testifies that he had several conversations with Walker in relation to getting these incumbrances released, and that on one occasion he and Walker went together to the bank and stated to the person in charge their arrangement ; that a package said to contain the incumbrances was produced, and Walker then said that he would fix the matter in a day or two. After that, Walker came to the office of Williams & Thompson, and brought with him a release of the deeds of trust executed by Hoffman. This paper, whatever it was, seems to have been destroyed in the great fire of 1871, and so was not produced at the hearing. The witness is an attorney-at-law, who has had considerable experience in the examination of titles to land, and although he is unable to state with entire positiveness the contents or even the general character of the paper presented to him by Walker, he testifies positively that on examining it he found it to contain complete and satisfactory evidence of the cancellation and discharge of the incumbrances.
Ho witness is produced directly contradicting this evidence, and the only circumstances of any significance relied upon to rebut it are, that the release does not appear to have been placed on record, and that the deeds of trust, instead of being surrendered to Walker, were retained in the custody of the bank. The latter of these circumstances has little, if any, weight, in view of the fact, abundantly established by the evidence, that during the entire course of the dealings between Walker and the bank, it was the usual practice of the bank to retain in its possession all of Walker’s cancelled notes and securities. The mere fact that the release was not recorded, though a,circumstance of some importance as bearing upon the question, cannot be held to rebut the strong affirmative evidence of its execution.
By the release, the lien which the bank held on block 28 was extinguished, and the bank could no longer hold it as security for its existing debt against Walker, or receive it under a new pledge from Walker as collateral to a further loan; nor could the assignee of the bank obtain any rights under it which would be valid as against Williams & Thompson. In our opinion, that portion of the decree relating to the deed of trust on said block 28 should be affirmed.
We will next consider the cross-errors assigned by Miller and Liebenstein. The facts relating to this branch of the case, as disclosed by the evidence, are briefly these: On the 24th day of October, 1870, Samuel J. Walker, being the equitable owner of the east half of the northwest quarter of section 4, township 38, north, of range 13, east, in Cook county, the title to said land being at the time in Henry II. Walker, caused the same to be conveyed to William Hansbrough, and on the same day said Hansbrough executed his two promissory notes for §6,000 each, payable respectively in one and two years, to the order of said Henry H. Walker, with eight per cent, interest, and to secure said notes, executed to John Gr. Rogers, as trustee, a deed of trust on said land. Said notes were thereupon indorsed in blank by Henry II. Walker, and delivered to Samuel J. Walker, who, on the 28th day of November, 1870, borrowed of the International Bank $10,000, giving his own note therefor, and pledging the two Hansbrough notes and deed of trust as collateral security. On the 17th day of December, 1870, Hansbrough executed a quitclaim deed, conveying said land to Samuel J. Walker, and on the 26th day of January, 1871,Walker and wife, for a valuable consideration, sold and conveyed said premises to Russell M. Lamed, by a warranty deed, covenanting, among other things, against all incumbrances. Both of these deeds were duly recorded.
The $10,000 note was negotiated by the bank to Amos S. Seeley, and on the 14th day of June, 1872, Walker paid it in full at the International Bank, where Seeley had left it for collection. Afterwards, on the 2nd day of July, 1872, Walker again borrowed of the bank the sum of $12,000, giving his note therefor, payable ninety days after date, and in the body of the note it was recited that the two $6,000 Hansbrough notes and deed of trust were deposited as collateral security. The $12,000 note was afterwards, and, as is claimed, on the day of its date, assigned to Hiller & Liebenstein, who are now the holders thereof.
Considerable evidence was adduced at the hearing, tending to show that at the time of the conveyance to Larned, this deed of trust was in fact released. We have been furnished with a copy of a written opinion, filed by the learned circuit judge, who heard the cause in the court below,'in which the evidence on this question is fully reviewed and discussed, and the conclusion reached that it fairly preponderates in Larned’s favor. Without attempting to re-state the evidence, we content ourselves with simply saying that we are inclined to concur on this branch of the case, with the reasoning and conclusions of the learned circuit judge, and to hold that the evidence on this subject, though not altogether clear and satisfactory, is yet sufficient, when considered in the light of all the facts and circumstances surrounding the case as disclosed by the record, to raise a fair presumption, which the holders of the securities have failed to rebut, that prior to Larned’s purchase, an arrangement was made between Walker and the bank for the release of these collaterals, by Walker’s paying or otherwise securing the principal note of $10,000, for which they were then held, and that such arrangement was' consummated before or at the time of the conveyance.
But there are other grounds which, in our opinion, are even more satisfactory, upon which the decree of the court below dismissing, as to Larned, Miller & Liebenstein’s cross-bill, for want of equity, must be sustained. When the 010,000 note was paid, Walker, if he did not actually receive back the collateral notes and deed of trust from the bank, was entitled to their surrender, and so the case must be viewed in all respects, so far at least as Miller and Liebenstein are concerned, as though Walker hypothecated these securities for the first time on the second day of Jnly, 1872, the date of the 012,000 principal note. At that time one of the collateral notes was more than eight months overdue. Miller and Liebenstein taking it, as they did, so long after its dishonor, took it not only sub- " ject to all equities with which it was encumbered in Walker’s hands, but also with notice of all such facts as reasonable inquiries on their part would have developed. The doctrine applicable to this subject is well stated by Shaw, C. J., in Fisher v. Leland, 4 Cush. 456, as follows: “Where a negotiable note is found in circulation after it is due, it candes suspicion on the face of it. The question instantly arises, why it is in circulation? Why it is not paid? Here is something wrong. Therefore, although it does not give the indorser notice of any specific matter of defense, such as set-off, payment, or fraudulent acquisition, yet it puts him on inquiry He takes only such title as the indorser himself has, and subject to any defense which would be made if the suit were brought by the indorser.”
It is clear that in Walker’s hands, neither of these notes could be enforced as against the land. By his warranty deed covenanting against all incumbrances, he had obligated himself to have the Hansbrough deed of trust discharged, and when that security came into his hands by his payment of the 010,000 note, the lein thereby created was, as between him and his covenantee, cancelled and extinguished, and it was no longer in his power to enforce it. Miller & Leibenstein must be held to have taken the security, so far at least as the note already, overdue was concerned, burdened with the same equity.
But how stands the case as to the other note ? By the dishonored note they were put upon inquiry as to the circumstances of that note, and the reasons why it had not been paid. Reasonable diligence in pursuing the inquiry would have led them to apply for information, at least to Hansbrough, the maker of the collaterals, and Walker’, the pledgor; and had they done so, they would, as will be presumed, have been put in possession of all the facts. They must be charged with notice of all such facts as they would have learned on reasonable inquiry. C. R. I. & P. R. R. Co. v. Kennedy, 70 Ill. 350. Being chargeable with notice for one purpose, we see no reason why they should not be chargable with it for all purposes.
It must also be remembered that, at the time of the execution of the $12,000 principal note by Walker, the deed from Walker to Lamed was on record, and had been for over a year and a half, and the question arises whether the bank and Miller & Leibenstein, its assignees, were not chargable with notice of the record of said deed.
The general rule doubtless is, as the learned counsel for Miller & Leibenstein insist that the record of a subsequent conveyance is not notice to one claiming under a prior recorded deed from the same grantor, but we think the facts in the case do not warrant the application which is sought to be made of that rule. Ko one, we think, will contend that the assignee of a mortgage is not chargable with notice of a release executed by the mortgagee and placed on record before the assignment. That is not a case of a subsequent conveyance by the same grantor, but a conveyance made prior to the assignment by the grantee, from whom the assignee derives title.
In this case Miller & Liebenstein took their title through an assignment or pledge from Walker, and Walker, before parting with the deed of trust, executed to Earned a conveyance of all his title and interest in the land, a conveyance which, at least as between them, operated as an extinguishment and cancellation of the lien of the deed of trust. True, at the time the conveyance was made, the deed of trust was held by the bank or Seeley, but when it came back into Walker’s hands on payment of the $10,000 principal note, the title with which Walker thus became re-invested, inured to the benefit of Earned by force of • the covenants in the deed, and so the rights of the parties m ust be held to be in all respects the same as though thé deed of trust bad been in Walker’s hands at the time of the conveyance to Larned.
But there is another ground upon which, as it seems to us, Miller & Liebenstein may be fairly held to be chargeable with notice of the Larned deed. The Hansbrough notes and deed of trust were executed without consideration, and, consequently, so long as they remained in Walker’s hands were mere accommodation paper, having no consideration or validity, and incapable of enforcement' until negotiated by him. It was by their hypothecation to the bank on the 2d of July, 1872, that they received their validity and became binding as valid securities for the payment of money. That then, within the meaning of the rule above cited, must be regarded as the true date of their execution, and the bank and its assignees must be held to have had coustructive notice of all deeds then on record. The case of Houfes v. Schultze, 2 Bradwell, 196, may be cited as an authority in support of this view. That was a contest between the holders of two trust deeds on the same property, executed by the same grantor. The deed of Houfes was executed and delivered February 5, 1873, but not recorded until April 8, 1873. The deed to Schultze was 'executed March 26, 1873, and recorded March 27, 1873, but was not delivered nor the loan evidenced thereby actually advanced until April 8, 1873. It was held, that the latter deed, though recorded first, could not be regarded as valid or operative as a security until it was delivered and the loan consummated. This case was affirmed by the Supreme Court on appeal. Schultze v. Houfes, 96 Ill. 335.
' We are of the opinion, then, that the equities of the bank and its assignees must be regarded as subsequent and subject to those of Larned, and that the decree, so far as it relates to the Hansbrough deed of trust, should be affirmed.
It is insisted that the decree should also be affirmed so far as it relates to certain lands conveyed by Walker prior to the commencement of the suit, to Eli Kinney and to Joseph E. Young. These lands were covered by several deeds of trust, which by the decree were ordered to be foreclosed, and said lands sold to pay the principal notes for which those deeds of terst were held as collateral. Kinney and Young are neither of them complaining of the decree, and Kinney has appeared and expressly waived all errors therein.
We have already held the decree, so far as it attempts to find the amount due on said deeds of trust, to be erroneous, because the court, in stating the account between Walker and his various creditors, refused to allow him to avail himself of the defense of usury. It is urged, however, that so long as these grantees of Walker’s equity of redemption find no fault with the decree, neither Walker nor his assignee in bankruptcy is prejudiced by the error complained of, and therefore ought not to be heard to insist on the reversal of the decree. We are unable to adopt the view thus presented, for various reasons.
The conveyances to Young end Kinney were with covenants of warranty, and Walker, being liable to them on his covenants, is interested in having the land discharged from the lien of the deeds of trust, a result which might have been accomplished in whole or in part by an application to the principal indebtedness of the various usurious payments shown by the evidence. Again, the decree, after providing for the sale of the premises covered by the various deeds of trust, and the application of the proceeds to the satisfaction of the indebtedness, provides that the various creditors have a decree against Walker for any balance of money that may be found to be due them, respectively, after the application of the proceeds of the sales so ordered to be made, and that execution issue for the collection of such balance when ascertained. Even if this is not to he regarded as amounting in terms to a personal decree against Walker for the deficiency, it is an adjudication, in pursuance of which these creditors may, at any time after the deficiency is ascertained, apply to the court for such decree, and enforce the same against Walker personally, by execution.
It cannot be doubted, then, in view of this feature of the decree, that Walker has such interest in having the amount of the indebtedness in controversy reduced by all just credits, as authorizes him to avail himself of any error by which he has been unjustly deprived of any credit or set-off to any portion of the indebtedness. True, he has been adjudicated a bankrupt, but there is no evidence, so far as we are aware, that lie has been discharged, nor can we anticipate that he will be So far as we can see, then, his liability to a personal decree for the deficiency remains, notwithstanding the adjudication of bankruptcy.
Furthermore, under the “ blanket ” agreements between Walker and the bank, any surplus arising out of the sale of the lands deeded to Kinney and Young is to be applied in reduction of Walker’s other indebtedness, and to that extent releasing other property from the burden of the incumbrances resting theron. Both Walker and his assignee, then, are entitled to assign for error the decision of the court by which they were deprived of the benefit of just credits upon the indebtedness secured upon the Kinney and Young lands. It follows that the errors assigned by Walker to that portion of the decree affecting those lands must be sustained.
An order will accordingly he entered affirming the decree so far as it relates to the deed of trust executed by Samuel J. Walker and wife to Francis A. Hoffman, conveying said block. 28; and to the deed of trust executed by William Hansbrough to John G-. Rogers, conveying the east half of the northwest quarter of section 4, township 38, range 13, in Cook county, and reversing the residue of the decree, and remanding the cause for the statement of an account in accordance with this opinion, and other proceedings not inconsistent therewith.
Decree affirmed in part, and reversed in part.