Second District

December Term, 1891.

#### Leon Sprague et al. v. Cornelius H. Beamer.

Mortgages—Foreclosure by Assignee—Proof of Assignment—Merger —Estoppel by Recitals in Bond—Personal Decree Against Administrator for Costs—Incumbrance on Estate to be Borne Ratably by Different Owners—Duty of Life Tenant in Possession.

A husband and wife joined in a bond and mortgage upon an estate of the wife, to secure a loan recited as being made to the husband, and subsequently, the wife having died, the husband procured an assignment of the mortgage to himself and brought foreclosure proceedings against the administrator and heirs of his wife; this court holds, that parol evidence was admissible to prove that the loan was made to his wife instead of to himself; that the guardian ad litem of the infant heirs had the right to file a cross-bill and to take an appeal in their behalf; that a decree against the administrator of the deceased wife personally for costs, was error; that the complainant’s estate as mortgagee, and his estate of homestead and as surviving husband did not merge, and he was not, therefore, chargeable with rents and profits as a mortgagee in possession; that complainant having an estate of homestead in the premises, and claiming to occupy by virtue thereof, and of his estate as surviving husband, and bring so tenant for life of an estate charged with incumbrances, he was bound in equity to keep down the interest out of the rents and profits. Complainant, seeking to enforce his lien, must himself bear his ratable portion of that lien.

*18[Opinion filed May 20, 1892.]

Appeal from the Circuit Court of Livingston County; the Hon. Thomas F. Tipton, Judge, presiding.

Messrs. McDougall & Chapman and McIldtjef & Tobeenoe, for appellants.

Hr. A. E. Harding, for ajipellee.

Hr. Justice Cartwright,

This is a bill in equity by appellee against the heirs and administrator of Lois J. Beamer, his deceased wife, seeking the foreclosure of a trust deed and a mortgage made by his said wife and himself, and to subject the land mortgaged to a charge for interest paid in her lifetime, and for improvements alleged to have been made by him. Three of the heirs who wrere made defendants were minors and a guardian ad litem ivas appointed by the court to protect their interests. Defendants answered the bill, and a cross-bill was filed to compel appellee to account for and apply upon the incumbrances, the rents and profits received by him while in possession of the premises. Proofs having been taken, the court, on hearing, dismissed the cross-bill at the cost of complainants therein, and decreed a foreclosure of the incumbrances for §1,600.69, including §50 solicitor’s fee provided for in the mortgage, and ordered a sale of the premises subject to dower and homestead in appellee. From this decree the minor heirs and administrator prosecuted this appeal.'

The point is made on the part of appellee that the appeal is improperly here as to the infants, because the case was brought here by the guardian ad litem, in their behalf. The statute authorizes the court to appoint a guardian ad litem for any infant defendant and to compel the person appointed bo act. It is claimed that his powers are limited to defense, objection and opposition merely, and that he can take no affirmative step. Such a construction would preclude him from filing a cross-bill or doing any affirmative act, although

*191 it might be essential to the protection of the infant’s interests involved in the litigation which he is appointed to defend. 'We think that his powers are not so limited. This suit being brought here by appeal is the same suit in which the guardian ad litem was appointed to defend the interests of minor defendants, and he is still acting in their defense as against alleged errors in the proceeding, by the only available method for the purpose. And we think his action in that regard is within the scope of his power.

The evidence shows that Lois J. Beamer, then wife of appellee, bought the land in question in 1872 and owned it until her death, occupying it with appellee, who farmed it most of the time. Appellee and his said wife executed a bond and trust deed March 26, 1872, to secure Owen W. Angelí in the sum of 0950, borrowed from him. The bond was due July 7, 1874, with ten per cent interest payable annually, and both bond and trust deed recited that they were given for an indebtedness of appellee, which indebtedness appellee covenanted in the trust deed to pay. July 21, 1882, the principal of the bond was extended to and made payable July 1, 1887, and the rate of interest was reduced to seven per cent annually. In 1878 Lois J. Beamer and appellee made a mortgage of the same land to secure a note for §165, payable to 1ST. E. Wright in two years, with interest at ten per cent. The note and mortgage to Wright Avere assigned to Charles P. Angelí and Avere again assigned by Angelí to appellee December 24, 1886.

The bond to OAven W. Angelí Avas assigned to appellee December 24, 1886, by Charles P. Angelí, describing himself as trustee and executor of the will of Oatbu W. Angelí, deceased, but there was no legal evidence that he Avas executor.

Appellee sought a foreclosure of this trust deed and mortgage by virtue of their assignment to him, and it is alleged as error, that the bond was admitted in evidence Avithout proof that Charles P. Angelí was executor of Owen W. Angelí, so as to be capable of transferring the bond to appellee. lío particular form in the transaction is necessary to *20constitute an assignment in equity, but it was necessary for appellee to prove that he had title, legal or equitable, to the bond, derived from some person having such title. The proof that Charles P. Angelí had title to the bond was necessary to entitle the bond to admission in evidence. The court admitted parol evidence to prove that the trust deed and mortgage were given for the indebtedness of Lois J. Beamer, and that appellee sustained the relation of surety in the transaction. This is alleged to be error so far as the bond and trust deed are concerned, on the ground that appellee is estopped to dispute their recitals that the indebtedness ivas his own. The recitals estop the parties thereto, but they do not form the contract and are not covenants between the grantors or the parties to the obligation on one side. They are not conclusive evidence of the facts recited as between them. There was no error in that respect, and the evidence was sufficient to establish the claim of appellee that the indebtedness ivas that of his wife.

It is objected that the decree was personal against the appellants, none of whom are liable for the debt. The finding was that appellee was entitled to recover $1,600, and it was ordered that defendants pay the same and costs, and in default thereof, the premises should be sold. The decree does not find anything due from the appellants, nor from whom appellee was entitled to recover. Such a decree is held to be alternative and not personal. Gochenour v. Mowry, 33 Ill. 331; Glover v. Benjamin, 73 Ill. 42. The decree differs from those held erroneous in Cundiff v. Brokaw, 7 Ill. App. 147; O’Brian v. Fry, 82 Ill. 274, and McKenzie v. Hartford L. & A. Ins. Co., 42 Ill. App. 157, in all of which the court found an amount due from defendants and decreed that they should pay the same.

Lois J. Beamer died in May, 1890, and appellee continued in possession of the premises after her de.ath. By the cross-bill it was sought to charge him with rents and profits received both before and after her death, on the ground that he was a mortgagee in possession.

Appellee was not in possession as mortgagee during the *21lifetime of his wife, and unless his estate of homestead and the subordinate estate as surviving husband were merged in the mortgage estate, he would not necessarily hold possession of the premises as mortgagee after her death. The running together of the separate estates was not incompatible, so that merger would not necessarily occur. The interest of appellee required that there should be no merger, and his intention that there should be none will be inferred from that fact. We conclude that he was not a mortgagee in possession and chargeable with rents and profits' as such. The cross-bill was therefore properly dismissed. The decree, however, appears to be personal against the administrator for the costs of the cross-bill, and no reason appearing Avhy that should be done, it Avas erroneous in that regard.

The court found due to the appellee the Avhole amount of the mortgage and trust deed, and even more than was due, and directed a sale of the premises subject to doAver and homestead in the appellee. The homestead was released both by the trust deed and mortgage, and all rights of appellee Avere subject to both. By the decree his interests Avere exempted from contribution, and the AAdiole burden of the incumbrance was cast upon other interests.

Appellee had an estate of homestead in the premises and claimed to occupy by virtue thereof and of his estate as surviving husband, and being so tenant for life of an estate charged Avith incumbrances, he Avas ‘bound in equity to keep doAvn the interest on the estate of Avhich he Avas in possession as such tenant out of the rents and profits. Every part of the ownership of the estate should bear a ratable part of the incumbrances. A tenant for life of an estate must keep doAvn the annual interest on the estate of Avhich he is in the possession and enjoyment as such tenant while the incumbrance is running, and the entire estate must bear the charge of the principal in just proportions. If appellee seeks to enforce his lien, he must bear his ratable proportion of it, and a decree should not be entered in his favor for that portion Avhich he is himself bound to pay and discharge.

*22Assuming the assignment of the bond to be proven, appellee has a right to a decree of foreclosure against the heirs for the amount over and above the proportion of the debt which he is bound to contribute, but a decree should not be entered for more than the ratable share which the heirs should pay. The decree will be reversed and cause remanded.

Reversed cmd remanded.