Administrators of Ernst v. President of the State Bank, 1 Ill. 86, 1 Breese 86 (1824)

Nov. 1824 · Illinois Supreme Court

1 Ill. 86, 1 Breese 86

The Administrators, Widow, and heirs of T. Ernst, deceased, Plaintiffs in Error, v. The President and Directors of the State Bank of Illinois, Defendants in Error.

ERROR TO FAYETTE.

A debt due the State Bank secured by mortgage, is a debt due the state, which the state can release.

Ferdinand Ernst, in his lifetime, on the 31st day of August, 1821, and Mary Ann his wife, made their mortgage to the defendants, to secure the payment of eight hundred dollars, twelve months after the date, according to the tenor of a certain note made by Ernst on that day, for the use of the people of the state of Illinois. This mortgage not being satisfied, nor the money secured thereby paid, the defendants in error sued out of the circuit court of Fayette county, a writ of scire facias on the mortgage. At the return term of the scire facias, the plaintiffs in error appeared and pleaded a release of the mortgage debt, by an act of the general assembly of this state, entitled “ An act to authorize the administrators of F. Ernst to sell certain real estate.”

To this plea there was a demurrer and sustained, and judgment for the mortgage debt.

Starr, for the plaintiff in error

contended, first, that it was competent to the legislature to release and discharge the mortgage debt; and second, the bank was nothing more than a trustee for the people, and the cestui que trust may release a debt due to the trustee.

Blackwell, contra.

Opinion of the Court by

Justice John Reynolds.

This was a scire facias upon, a mortgage. Ernst, in his lifetime, loaned from' the state bank of Illinois, eight hundred, dollars, and to secure the payment of that sum, executed the mortgage deed, as alleged in the scire facias. The bank obtained judgment in the circuit court of Fayette county against the plaintiffs in error, to have the mortgaged premises sold, and to reverse that judgment this writ of error is prosecuted.

In the court below the plaintiffs in error pleaded a statute passed Feb. 18, 1823,^* by the general assembly of this state, in bar of this demand. To this plea there was a demurrer, which presents to the court the statute above referred to.

On a full and correct examination of the above recited act, it appears to the court to embrace this case. It was the intention of the legislature to release the estate of Ernst, from all debts due the state. The above debt is due the state. The judgment of the court below must be reversed at the costs of the defendants in error, ^(a)

Judgment reversed.

* Laws of 1823, page 177.

(a) The part of the act of 1823 referred to, is as follows: “And the estate of the said E. Ernst, deceased, is hereby released from the payment of any debt due by said estate to this state.” Laws of 1823, page 178.

The act establishing the state bank, at page 85, (laws of 1821) requires that the notes and mortgages shall be made “ payable to the president and directors ” of the bank, “ for the use of the state.”