text:
    Matthew Faloon et al. v. R. S. McIntyre et al.
    1. Voluntary conveyance.—A voluntary conveyance for the benefit of the grantor, when it stands in the way of collecting a debt owed by the grantor at the time of the conveyance, may he set aside by bill in chancery, hut such a conveyance will not he set aside l'or the benefit of a subsequent creditor or to support a subsequent voluntary conveyance.
    2. Chancery.—Where there is equal equity, the court will not disturb the legal status of the contending parties.
    Error to the Circuit Court of McLean county; the Hon. O. T. Reeves, Judge, presiding.
    Opinion filed December 4, 1885.
    Mr. Thomas F. Tipton, for plaintiffs in error.
    Messrs. Fifer & Phillips, for defendants in error.
   Wall, P. J.

The plaintiff in error, Matthew Faloon, filed his bill in chancery against the defendants in error, R. S. McIntyre and others, to set aside a conveyance in the nature of a deed of trust, executed to said McIntyre by Joshua R. Fell, in order that the real estate in said deed mentioned might be subjected to the operation of a judgment held by said Faloon against said Fell.

The cause was heard by the circuit court on bill, answer, replication and proofs, and a decree was entered dismissing the bill. The record is brought to this court by writ uf error, and we are asked to reverse the decree. It appears that Faloon married the daughter'of said Fell, and that shortly after the marriage said Fell and his wife went to the house of Faloon and remained there most of the time for a period of about> twenty years. This arrangement seems to have been mainly at the instance of Mrs. Faloon, and seems to have been to some extent agreed upon before the marriage.

Mrs. Faloon was the youngest child of Fell and his wife, and as her parents were then quite old she was reluctant to leave them alone. It may be stated that during the entire period the Fells were in the house of Faloon they were well treated and cared for, in sickness and in health, and this, so fa)1 as Mrs. Faloon was concerned, was inspired, no doubt, by a worthy, filial disposition, in which she was never lacking. In April, 1881, the Fells left the house of Faloon and went to their own house, and then it appeai-s that Faloon made a charge upon his book against said Fell for boarding, nursing, medical attention, etc., during said period, amounting to 87,764, hut it does not appear that there was ever any understanding between him and Fell that there was to be charge for said items, or that this account was ever shown to Fell or agreed to by him.

Upon this point it may he said here, as well as later on, that from the near relationship of the parties the law would not necessarily imply promise on the part of Fell to pay for the services so rendered, and that in the absence of an express understanding to that effect, Faloon could not recover therefor at law. There is nothing in the evidence to justify the conclusion that there was any such undertaking, or any understanding of that sort up to time this charge was entered by Faloon in his book. On the contrary, we think there is much, aside from the relationship of the parties, to rebut such a theory. It is shown that Fell must have, in some way, disposed of considerable sums of money while he lived with Faloon, and that at different times, and on different accounts, Faloon was admitted to be Fell’s debtor. These, and other circumstances not necessary to be stated in detail, are quite convincing proof that Faloon was, when he made this charge on his book, not in a position where he could have enforced it as a legal demand against Fell. About one year later, on May 5, 1882, the deed of trust in question was executed by Fell and wife to McIntyre. This deed conveys the property in dispute to said McIntyre in trust, to collect the rents, pay taxes, repairs, etc., and the balance to pay to said Fell during his life, and after his death, to his wife, Sarah Fell, and after the death of both, the property was to be converted into money and the proceeds invested, so that the same should produce interest, which was to be equally divided between Mrs. Faloon and Mrs. Conner, another daughter of said Fell and wife. There are other details and particulars, which, for the present purpose, need not be set forth.

The property so conveyed is situated in the city of Bloomington, adjoins the residence property of Faloon, and is all the real estate then possessed by said Fell. Thus matters remained for about one year more, when, on the 26th day of May, 1883, the said Fell gave to Faloon a promissory note for 82,500, with a power of attorney to confess a judgment thereon, and soon afterward, as a part of the same transaction, gave him also a quitclaim deed for the property conveyed in the deed of trust to McIntyre, and about the same time Fell and wife again went to live at the house of Faloon.

On the 28th of May, 1883, Faloon took judgment in the Circuit Court of McLean county on the said note of §2,500. Execution was afterward issued on said judgment, and returned nulla hona, and this bill is filed for the purpose of removing the said deed of trust out of the way of collecting the said judgment.

This note of §2,500 was made, as alleged by the plaintiff in error, in settlement and satisfaction of the amount alleged to be owing him from Fell for board, etc. It is admitted by Faloon that it was also understood that Fell and wife were to return to the house of Faloon, and be kept and cared for as they had been in former years. We have no doubt the latter was a moving consideration, and probably the essential consideration which operated upon the minds of Fell and wife in making this arrangement.

It appears to have heen understood that this note was to be used as the basis upon which the deed of trust was to be avoided or superseded; that Fell had become dissatisfied with the situation, and was induced by Faloon and the arguments which were laid before him to place these instruments in Fa-loon’s hands for this purpose; but that he was mainly influenced by the prospect of future support, seems quite apparent.

Fell is an old man, feeble in body, weak in mind, and his testimony, which appears in this record, is so inconsistent with itself, shows such loss of memory and want of judgment, that we are prepared to believe that when his deposition was taken he was unfit to care for his own affairs; and probably this was so when he gave the note and power of attorney, in May, 1883. At any rate he seems then to have been quite under the influence of Faloon and subject to his control. It is perhaps not remarkable that he was thus influenced considering his age and mental condition, and the kind treatment he had always received at the hands of Faloon and his daughter, Mrs. Faloon.

Whether Faloon in his tre atment of the old people was actuated by mercenary motives, as urged by the ■ defendants in error, it is not necessary to determine; but we entertain no doubt the transaction of May, 1883, was planned by Faloon to enable him to lay his hands upon this property, and that the assent of Fell was based upon the consideration and expectation of future support, and that Faloon’s rights in the premises are not strengthened in a legal sense by the services he had previously rendered Fell, for the reason, as already stated, that these services were rendered under such circumstances as to preclude a recovery therefor against Fell.

It is urged that the deed of trust was executed at the instance of other members of Fell’s family, who were jealous of the influence of Faloon, and that one consideration operating upon the mind of Fell was to place his property beyond the reach of Faloon upon this claim for board, nursing, etc., which he was then supposed to be asserting, but the validity of which was then denied by said Fell. We think the evidence tends to support this view, and that Fell in making the deed of trust was chiefly, if not wholly, actuated by a desire to secure a support for himself out of the property. It follows then that Fell has made two attempts to secure such support, for, as we have already shown, such is substantially the effect and object of the transaction of May, 1883, and the scope of the present bill.is to set aside one of these for the benefit of the other, or that the other may be upheld. A voluntary conveyance for the benefit of the grantor, when it stands in the way of collecting a debt owed by the grantor at the time of the conveyance, may be set aside by bill in chancery, but such a conveyance will not be set aside for the benefit of a subsequent creditor or to support a subsequent voluntary conveyance. It is urged on behalf of Faloon that the cestwis que irusi under the McIntyre deed are merely volunteers, and it is retorted that his position is no better than theirs in this respect.

It is a familiar maxim that when there is equal equity the law will prevail; that is, in such cases a court of equity will not disturb the legal status of the contending parties, but will leave them in the situation they have made for themselves. We think the equity of the complainant in the present bill is no better than that of the defendants, and that this is a proper case for the application of the maxim just quoted. TZie decree of the circuit court will therefore be affirmed.

Affirmed~


source: Caselaw Access Project

author: Wall P. J.

license: Public Domain

text:
    Claus H. Martens v. Henry Fields et al.
    Forcible entry and detainer.&emdash;As the complaint In this case of forcible entry and detainer contains all the statute requires it was error to sustain a demurrer to it.
    Appeal from the Circuit Court of Calhouncounty; the Hon. George W. Herdman, Judge, presiding.
    Opinion filed December 4, 1885.

      The appellant instituted an action of forcible entry and detainer in the Circuit Court of Calhoun county, by filing his complaint in writing, as follows:
    “ State of Illinois,) gg Calhoun county, j
    April term 1885—In the Circuit Court.
    Claus H. Martens "1 • ,
    v.
    Forcible Entry and Detainer.
    Henry Fields and Wilhelmina Quilla.
    Claus H. Martens, being duly sworn, on his oath states that he is entitled to the possession of the following described premises, to wit : The southeast quarter of section twenty-three (23), in township eight (8) south, range three (3), west of the third principal meridian, in Calhoun county, Illinois, and that Henry Fields and Wilhelmina Quilla unlawfully withhold possession thereof from him.
    Claus H. Mabtehs.
    Subscribed and sworn to before me by Claus H. Martens, this 25th day of March, 1885.
    Joseph Hath, Justice of the Peace.”
    Summons was issued and duly served. The defendant demurred to the complaint. The court sustained the demurrer and gave judgment against the plaintiff for cost. ■
    Mr. James E. Wabd, for appellant;
    that the complaint was sufficient, cited R. S. Ch. 57, § 5; St. Louis Stock Yards v. Wiggins Ferry Co., 102 Ill. 521; Peters v. Lake, 66 Ill. 203.
    Messrs. Bbowh & Kxrby, for appellees.
   Wall P. J.

The question is whether the complaint is sufficient. The proceeding is statutory, and it is safe to follow the form prescribed, under which any of the statutory grounds of recovery may be proved. This complaint contains all the statute required. The court erred in sustaining the demurrer.

The judgment is reversed and cause remanded.

Beversed and remanded.


author: Wall, P. J.

text:
    George Taylor v. Samuel G. Weagley et al.
    1. Equity—Jurisdiction.—When a judgment has been obtained as the result of fraud, accident or mistake, and without the neglect or fault of the defendant, a court of equity will entertain a bill to set aside the judgment and declare the same canceled or satisfied, or grant anew trial, as the nature of the case may require.
    2. Same.—And similar relief will be accorded where, after judgment, circumstances occur which render it inequitable to enforce payment.
    3. Same.—-But no bill will lie in the circuit court to enjoin the execution of final process upon a judgment of the appellate court for damages and costs on an appeal dismissed.
    Appeal from the Circuit Court of Morgan county; the Hon. Cyrus Eplee, Judge, presiding.
    Opinion filed December 4, 1885.
    On the 14th day of June, 1882, appellant, George Taylor, recovered a judgment against appellees for §6,282.87, in the Morgan Circuit Court. On the same day they prayed an appeal to the appellate court, which was alio wed on their entering into bond in the penalty of §7,000, with security to be approved by tlie clerk. Bond was to be filed in thirty days.
    On the 15tli day of July, appellees presented to the circuit c'erk their appeal bond, dated July 13th, which was approved hy the clerk and filed. The appeal bond contained the usual recitals.
    Appellees failing to file the record in the appellate court, at the November term, 1882, appellant (on the 26th day of January, 1883,) filed a short record, and caused the case to be dismissed in the appellate court; and his damages were assessed at §314.14, and costs at §19.17, for which execution was ordered by the court, and afterward issued by the clerk.
    Subsequently, on the 4th day of March, 1883, appellees paid to the clerk of the circuit comt the amount of the original judgment.

      At the November term, 1883, appellees, after giving appellant notice of their purpose, filed their motion in the appellate court to re-docket said cause, and set aside the order of dismissal and assessment of damages. This motion was heard and overruled. The same causes were assigned as are set out in the hill of complaint herein.
    On the 24th day of April, 1884, appellees, Weagley and Boyce, filed their bill for an injunction, in the Morgan Circuit Court, restraining the sheriff from the collection of the execution issued by the clerk of the appellate court for the amount of the damages and costs assessed by the appellate court on dismissing the appeal.
    Appellant Taylor and Sheriff Wright filed their answers, and the cause was tried at the ¡November term, 1844, of said circuit court, and a decree was entered perpetually enjoining appellee from collecting the judgment of the appellate court for said damages and costs, and also enjoining the sheriff from collecting the execution issued by the clerk of the appellate court.
    To reverse this decree appellant Taylor brings the case to this court, and assigns for error the findings and decree of the circuit court.
    Messrs. Brown & Kirby, for appellant;
    that the circuit court had no jurisdiction, cited R. S. Ch. 110, § 74; Anonymous, 11 Ill. 487; Price v. Pittsburg, F. W. & C. R. R. Co., 40 Ill. 44.
    Messrs. Morrison & Whitlock, for appellee;
    cited Constitution 1870, section 12, article 6; Robins v. Swain, 68 Ill. 202; Foote v. Despain, 87 Ill. 30; Beams v. Denham, 2 Scam. 58; Wilday v. McConnel, 63 Ill. 278.
   Wall, P. J.

When a judgment has been obtained as the result of fraud, accident or mistake, and without the neglect or fault of the defendant therein, a court of equity will entertain a bill to set aside the judgment and declare the same canceled or satisfied, or grant a new trial, as the nature of the case may require.

Similar relief will be accorded where, after judgment, circumstances occur which render it inequitable to enf orce payment.

Numerous cases cited by counsel in our own reports illustrate these principles, but such cases are to be distinguished from the case at bar.

The elements of fraud, accident or mistake, which would confer jurisdiction in equity, are not found in the present case, nor are there any subsequently occurring reasons for enjoining the judgment.

Obviously, the real and only ground upon which the decree can rest is, that the action of the appellate court in dismissing the appeal and entering judgment for damages was erroneous. The circuit court has general, original jurisdiction, but it is beyond its power thus to correct the errors of this court.

If one court may in this way supervise the judgments of another and prevent the execution of its final process, the result would be confusing and unsatisfactory in the extreme. If the order in question was irregular or inadvertent, there was power in the court making it to grant a rehearing under the rules, or upon motion to recall the process. It seems that such remedy was invoked but without success, though the reasons operating upon the court to deny the motion do not appear.

Another important consideration must be borne in mind. A court of equity will not ordinarily interfere on behalf of one who seeks relief from the consequence of his own fraud, neglect or misconduct.

The trouble here all flows from the act of the complainants in filing the appeal bond. It must be presumed they knew the bond was not filed in due time. They must have had some purpose in so filing it. That purpose could not have been a proper one. They can not now be heard to say they meant nothing by it, that no harm was done, and while ostensibly they were perfecting the appeal, yet, as their time had expired, the plaintiff should have paid no attention to it.

They can not complain that the most certain and effective means was adopted to remove an apparent, if not a real obstruction, out of the way of enforcing the judgment, and at the same time ask a court of conscience to relieve them from the natural consequence of their own voluntary act.

The bond was filed July 15th, yet it was not till the following March, after the appeal was dismissed, that they paid the judgment. Having enjoyed this delay they should not object to its cost.

“It may be laid down as a broad proposition that one who takes a particular position in course of a litigation must, while that position remains unretracted, act consistently with it.” Bigelow on Estoppel, 562, 601; Lowry v. Coster, 91 Ill. 182.

The decree of the circuit court will be reversed and the cause remanded, with directions to dismiss the bill at the cost of the complainants therein.

Beversed and remanded.


text:
    Edward Spellman et al. v. Frank Evans.
    Instruction.—An instruction that “ if the jury believe from the evidence that the appellants directly or indirectly employed appellee, the jury should find for appellee.’’ Held, that the instruction, under the circumstances of this case, was not erroneous.
    Appeal from the Circuit Court of Tazewell county; the Hon. H. M. Laws, Judge, presiding.
    Opinion filed December 4, 1885.
    Mr. William Don Maus, for appellants.
    Mr. T. U. Gbeen, for appellee.
   Wall, P. J.

This suit originated before a justice of the peace and was removed to the circuit court by appeal. In the circuit court there was a trial by jury, resulting in a verdict for plaintiff for §12.50, and judgment thereon with costs.

The case comes here by appeal, and error is assigned upon the rulings of the circuit court.

It is urged, first, that the court should have'granted a new trial because the evidence does not support the verdict. The evidence is sharply conflicting, but we can not say there is not enough to support the finding of the jury, and we think the court committed no error in this report. It is urged, also, that the court erred in its instructions by advising the jury that, if they believed from the evidence that the appellants directly or indirectly employed appellee, the jury should find for appellee.”

This expression is understood by counsel to authorize a verdict for appellee without an express agreement by the defendants to employ appellee, and that as there was no evidence upon which the law would imply an undertaking to pay for the services of appellee, therefore the instruction was misleading and should not have been given. We agree with counsel that upon the evidence it was necessary to find an express undertaking by defendants in order to render them liable for the plaintiff’s demand.

There were no facts in proof from which the law would imply a promise to pay for the services of the plaintiff.

If the instruction were subject to the construction placed upon it by counsel, we would, without hesitation, say that substantial error had been committed for which the judgment should be reversed. We do not, however, so read the instruction and can not believe it was so understood by the jury.

The words, “ directly or indirectly,” as here used, plainly refer to another feature of the case. There was evidence tending to show that the plaintiff’s services were employed through the agency of another person, not directly by the defendants, but indirectly through another. The instruction thus understood was not erroneous.

No other complaint is made by counsel for appellants, either as to the instructions, or as to the admission or rejection of testimony, and the judgment of the circuit court will therefore be affirmed.

Affirmed.


text:
    George Lechleiter v. Louis Broehl.
    1. Practice—Objection to evidence.—Where evidence was admitted without objection, it was not error in the court to refuse to grant a new trial on the ground that such evidence was improperly admitted.
    2. Practice.—Affidavits of jurors will not be heard to impeach their verdict on a motion for a new trial.
    Appeal from the Circuit Court of Logan county; the Hon. Geobge W. Hebdman, Judge, presiding.
    Opinion filed December 4, 1885.
    Mr. E. Lynch, for appellant.
    Messrs. Blinn & Hoblit, for appellee.
   Wall, P. J.

This was a proceeding by distraint for rent. Trial by jury, verdict for defendant, motion for new trial denied and judgment against jdaintiff for cost. Error is assigned upon the refusal of the court to grant a new trial and it is urged that the verdict was based upon incompetent evidence offered by defendant. This evidence was as to an agreement by plaintiff when the lease was made, and afterward, to tile the land and to improve and repair the house, and it is said such testimony was improper to go to the jury because its effect was to alter the terms of the written contract.

The lease which was quite informal and brief was silent upon this point, and while some of the proof referred to an agreement, contemporaneous with the written instrument, much of it related to a subsequent agreement for the second year.

We are of opinion that most, if not all, of the evidence in question was admissible, on familiar principles, but whether so or not the objection can not now be considered.

The plaintiff not only did not object to this evidence on the trial but introduced evidence on his behalf in rebuttal of it.

No instructions were asked. If the jury believed the testimony of defendant they were justified in finding that his damages, for the non-performance of the plaintiff’s agreement, were equal to the rent in arrear. The court committed no error in refusing to grant a new trial on this ground, the evidence not being objected to when offered. Snyder v. La Framboise, Bre. 268; Merchants, e c., Co. v. Joesting, 89 Ill. 152; Deitrich v. Waldron, 90 Ill. 115.

In support of the motion for new trial the affidavit of three of the jurors was read to impeach the verdict, for which purpose it was incompetent and was properly disregarded. Bertholf v. Quinlan, 68 Ill. 297.

No error appearing in the record the judgment of the circuit court will be affirmed.

Affirmed.


text:
    Charles A. Starne et al. v. Algernon Farr.
    1. Parties—Non-joinder.—The mere non-joinder of a party who might, be a proper party because having a formal or nominal interest in the litigation, will constitute no fatal objection at the hearing, or rehearing, or on a bill of review, if a decree can be made in his absence without prejudice to the parties before the court.
    2. Interest—Rate after maturity.—In case of a bond with interest coupons at an agreed rate, greater than six per cent., upon default made, and foreclosure proceedings, the interest should be computed at the agreed rate to the time of the decree.
    3. Default—Proofs.—When there is a default and decree pro confesso it can not be assigned for error that the proofs do not sustain the allegations of the bill.
    Error to the Circuit Court of Sangamon county; the Hon. J. J. Phillips, Judge, presiding.
    Opinion filed December 4, 1885.
    Messrs. Patton & Hamilton and Messrs. Matheny & Matheny, for plaintiffs in error;
    as to parties, cited Harris v. Cornell, 80 Ill. 54; Moore v. Munn, 69 Ill. 591; Mc. Graw v. Bayard, 96 Ill. 146; Walsh v. Truesdell, 1 Bradwell, 126; Fresh v. Million, 9 Mo. 315; Harvey v. Thornton, 14 Ill. 217; 1 Perry on Trusts, §§ 343-4, 3d Ed; Cross v. Carey, 25 Ill. 564; Hopkins v. Roseclare Lead Co., 72 Ill. 373; Story’s Eq. Pl. § 236; Zelle v. Workingmen’s Bk. Co., 10 Bradwell, 334.
    Mr. M. M. Broad well, for defendant in error;
    as to parties, cited 2 Washburn on Real Property, 478; Story’s Eq. Jurisprudence, § 1061; Walridge v. Bank, 1 Sneed, 297; Goss v. Singleton, 2 Head, 67; Gibbs v. Marsh, 2 Met. 243.
   Wall, P. J.

This was a bill in chancery filed by defendant in error against the plaintiffs in error to foreclose a deed of trust. It is alleged that on the 1st of January, 1879, Charles A, Starne, one of the plaintiffs in error, executed twenty bonds of §500 each, payable to bearer five years after date, bearing interest at the rate of ten per cent, per annum, and that to secure the said bonds he executed the deed of trust in question to Charles B. Hurst as trustee. The bill avers that the complainant was the owner and holder of said bonds ; that by the terms of the deed it became the duty of the trustee to sell the property on default of the grantor in the payment of the debt and apply the proceeds to that purpose, and in case of the death of the trustee the duty should devolve upon the master in chancery of Sangamon county, wherein the property is situated ; that the debt is due and unpaid ; that the trustee named is dead; that the master in chancery declines to execute the trust; that the Sangamon Coal Mining Company claims an interest in the property acquired since the making of the deed of trust; makes said company and said Starne defendants and prays for an accounting and sale of the property, the proceeds to be applied to the payment of the amount found due on said bonds and the costs of the proceeding. Process was duly served, the defendants were ruled to answer, a default was entered, the bill taken ^pvo confesso, and the cause referred to the master to take proofs and make report.

The master reported that he had taken proofs ; that there was due the complainant §10,869.34; that by the provisions of the deed of trust there was to he taxed for the complainant a reasonable sum for an attorney’s fee in case of foreclosure, which he had upon evidence fixed at §300; that the allegations of the bill were true and that complainant was entitled to a decree of foreclosure as therein prayed for the above amount. He also reported the proofs upon which his conclusions were based. A decree was then entered requiring the defendant Starne to pay said debt and cost within twenty days, and in default that the master in chancery sell the property upon the usual notice, and subject to redemption as provided by statute in the case of an ordinary mortgage of real estate. At a subsequent day of the same term of court the master reported that he had sold the property to the complain, ant for the amount of debt, interest, and cost, which report was by the court approved.

At a still later day of the same term the defendants filed their motion to set aside the decree and for leave to answer the bill, which the court upon due consideration refused, and the record having been brought here several alleged errors are assigned, presenting the points upon which our decision is required.

First, as to the refusal of the court to vacate the decree and permit the defendants to answer. In this we think there was no error. Assuming that the matters set up in the answer which defendants offered to file constituted a defense to any part of the decree, there was no such diligence manifested by the defendants as would entitle them to the relief sought.

The application was addressed to the discretion of the court, and it was necessary that some good reason for not making answer within the time set by the rule should be shown, before the court would regard the alleged ground of' defense. It can not be said that there were any circumstances to excuse the defendants. They had counsel employed who examined the bill and there was ample time and opportunity. If we should hold, upon the facts here presented, that the court abused its discretion, and that the defendants had a right to be let in to make their defense when this motion was entered, then it would hardly be worth while for courts to establish rules governing the order of proceedings before them. There was such want of diligence in this respect that we think the c< ur. was entirely justified in refusing to set aside the default, and we pass to the point we shall next notice, which is that the bill omits proper and necessary parties defendant. It is urged that the heirs of Hurst, the trustee, or his successor in trust, the master in chancery, should have been made parties to the bill. The deed of trust conveys the property in question, a leasehold, to said Chas. E. Hurst, “ his heirs and assignees, and to his successor and successors in trust,” with power to take possession of the property and sell the same, applying the proceeds to the payment of the debt. This expression, “his heirs and assignees, and to his successor and successors in trust,” occurs several times in the body of the deed, and appears to have been used without very much reference to the legal effect of the terms employed, and, as will be seen upon analysis, was not well considered. But the concluding paragraph of the deed reads as follows :

“ And further1, that in case of the death, resignation, removal from the said county of Sangamon, or other inability to act of said party of the second part, then the master in chancery of said county shall be and hereby is appointed and made successor in trust herein, with like power to act as is herein vested in said party of the second part.”

Construing the whole instrument, it seems clear that it was intended to confer authority to execute the trust in question— personal in its nature as it is—upon the said Hurst, or, in case of his death, etc., upon the master in chancery, and that it was not designed that the heirs of said Hurst, or his assigns, who were unknown, and who might have been quite incompetent for the purpose, should be permitted to carry out this important trust, involving a large sum of money; and that in view of the final clause in the deed, the court is justified in disregarding all preceding and contradictory expressions upon this point.

We adopt this construction, and, holding thus, the question arises whether the bill and decree are defective because the master in chancery was not made a formal party to the suit. It is alleged in the bill that the master had refused to make the sale in pursuance of the authority so conferred, and the object of the bill was to obtain a decree for sale, which, by the usual and invariable practice of the court, would be executed by that official, unless he was, by reason of interest or otherwise, disqualified to act; and such was the decree. So that whether made a formal party or not, the master was required to do that which he had power under the deed, but, for some reason not given, he had declined to do. He is the officer of the court—the arm by which its power is exercised and its mandate enforced.

It is true that as a general rule in suits concerning trust property by or against the cestuis que trust the trustees are necessary parties (Story’s Eq. Pl., Sec. 207); and usually all persons having a material interest in the subject-matter or in the object of the suit ought to be made parties. Yet, as stated by the same writer, the rule does not seem to be founded upon any positive and uniform principle, and does not admit of being expounded by the application of any universal theorem as a test. It is a rule founded partly in artificial reasoning, partly in considerations of convenience, partly in the solicitude of courts to suppress multifarious litigation, and partly in the dictate of natural justice, that the rights of parties ought not to be affected in any suit without giving them an opportunity to defend, (Ibid. 46 c,) and therefore it is true that the mere non-joinder of a party who might be a proper party, because having a formal or nominal interest in the litigation, will constitute no fatal objection at the hearing or rehearing, or on a bill of review if a decree can be made in his absence without prejudice to the parties before the court. If entire justice can be done without him the objection will not avail. Ibid. 75, 229. In the case before us the master in chancery was vested by the deed of trust with a power of sale, and as the successor in trust of Hurst, had a formal interest in the subject-matter, but it was for a certain specified purpose only. He had refused to act under that authority as was alleged in the bill and admitted by the default, and if this was so the beneficiary might well invoke the aid of the court. Had the master been made a formal party to the suit, the most that could have been done with him was to compel him to execute the trust just as was done by the decree, so that this object has been accomplished; therefore full and complete justice in this respect has been done as between the parties before the court, and if there is no danger of further litigation or other mischievous consequence growing out o f the omission, there is no occasion to set aside the decree on this ground.

Who can complain hereafter? Hot the present parties certainly, and it would seem equally impossible that the master could ever assert any right or interest in the subject-matter. His power and interest have been exhausted. By the order of the court, made in part upon his own report that he had found the allegations of the bill to be true, he has done .all that he could voluntarily have done, and it would be sacrificing sense to sound now to say that he was an indispensable party, and that the decree must be.reversed for this cause.

It is urged also that the decree is on its face manifestly too large. The amount is made up by computing inte vest at the rate fixed by the parties, ten per cent., up to the date of the decree. The plaintiffs in error insist that by the terms of the bond this rate of interest continues only up to the maturity of the debt and from that time forward but six per cent, should be allowed. The difference between these two modes of calculation is about §344.

There is some conflict in the adjudications upon this question. In the very similar case of a promissory note payable on or before a day named with a rate of interest greater than six per cent, it is held in this State that the conventional rate continues up to the time judgment is entered; this upon the reasoning that such was the intention of the parties, and therefore the contract must be so construed. Phinney v. Baldwin, 16 Ill. 108; Etnyre v. McDaniel, 28 Ill. 201.

The Supreme Court of the United States in Brewster v. Wakefield, 22 Howard, 118, took the opposite view of'such a rate in a case before that court, but in the case of Ohio v. Frank, 13 Otto, 697, which was an action upon a bond with interest coupons, like the present case, originating in this State and to be governed in the construction of the contract in this respect by the adjudications of this State, it was held that upon the principle announced in and under the authority of the Illinois decisions, sitpra, the contract rate of interest would continue up to the judgment. So also in the case of Pruyn v. Milwaukee, 18 Wis. 367, there was a similar conclusion in a suit upon a bond with interest coupons.

We are of opinion there is no error in the decree in this respect.

The remaining point is that the decree is too broad and covers more property than is warranted by the bill. As already stated the property included in the deed of trust is a leasehold, and the instrument, as alleged in the bill, conveyed to the trustee all the interest, right and title of the said Starne, in the premises ■ described, by virtue of a certain lease made to him by Farr and wife, recorded in book, etc., including all the buildings and improvements on and of said land, together with all engines, machinery, fixtures, apparatus and apparel placed on said lands or any part thereof, for use in the mining of coal and trade therein.

The decree follows this allegation of the bill in describing the property, and it is urged by the plaintiffs in error that so far as it covers the engines, machinery, fixtures and apparatus placed on the land or any part thereof, for use in mining coal or trade therein, it is without warrant.

It is a general rule that where there is a default and decree pro confesso it can not be assigned for error that the proofs do not sustain the allegations of the bill, and while the court may, in its discretion, hear testimony on all or any part of the bill it is not necessary to do so. Sec. 18, Ch. 22, R. S.; Manchester v. McKee, 4 Gil. 511; Harmon v. Campbell, 30 Ill. 25; Boston v. Nichols, 47 Ill. 351.

As was said in Manchester v. McKee, supra: “If it would not be error to make a decree without any proof, it is not easy to comprehend where the error is, in rendering a decree upon insufficient ¡proof.” Counsel argue, however, that the deed of trust is made an exhibit to the bill, and that if the allegation of the bill is broader than justified by the deed, the bill must yield.

The deed of trust, after describing the land upon which the lease was given, contains this provision : “ meaning and intending hereby to convey to said party of the second part, in trust for the purpose aforesaid, all interest the party of the first part has in the premises aforesaid, including the buildings and improvements of every hind, placed thereon T>y the sand party of the first part P It is contended that the terms “buildings and improvements” do not embrace engines, fixtures, machinery and apparatus placed on the land in mining coal. It will be noticed that the grantor conveys all his interest in the land, and it isa rule of law that all additions of a permanent nature placed on the land by a mortgagor for the purpose of carrying on the business for which the' property is designed and used, become fixtures in the general sense of the term, and will pass with the estate under the foreclosure (Wood v. Whelen, 93 Ill. 153; 2 Kent. Com. *345); and were the words “ buildings and improvements of every kind omitted, the additions to the realty specified in the bill and decree would probably pass, as between the parties to this deed of trust, to the purchaser under the foreclosure. These terms, when used with reference to the business of mining coal, for which it appears the lease was made, are general enough to include the fixtures named. In the case of French v. Mayor, etc., 16 Howard Pr. N. Y. 220, the courtremarked that the term “improvements” is most comprehensive, and it would be difficult to say what it does not include. West v. Blakeway, 2 Man. & Gr. 729. We think there is no error in this respect. The decree of the circuit court is affirmed.

Affirmed.


text:
    Douglas Simpson et al. v. John McPhail.
    1. Surety—Subrogation.—A surety who pays the debt of his principal acquires a right of action against his principal and may enforce it at law, and may in equity he subrogated to the rights of the creditor in any securities held by the creditor against the principal, including the lien of a judgment in favor of the creditor against the principal and surety upon thetoriginal debt.
    2. Same—Remedy.—While the surety may thus have equitable relief, he is not absolved from the operation of the rules which are applied to other suitors, and where a surety who has paid the debt docs no act before his claim is barred at law by the Statute of Limitations, manifesting an intention to put himself in the place of the creditor and subrogate himself to the creditor’s rights, equity will not subrogate Mm to those rights. ,
    3. Limitation.—A delay for five years witMn which the surety must have sued at law will be a complete bar in equity.
    Error to the Circuit Court of Montgomery county; the Hon. J. J. Phillips, Judge, presiding.
    Opinion filed December 4, 1885.
    Messrs. Miller & MoDavid, for plaintiffs in error.'
    Mr. A. N. Kingsbury, for defendant in error.
   Wall, P. J.

This was a bill in chancery filed by defendant in error against plaintiff in error, in the Circuit Court of Montgomery county, on the 13th day of January, 1883. The bill alleged that on the 18tli of March, 1864, Davis, Haskell & Co. recovered judgment in said circuit court against Spartan Gresham and John Simpson as principals, and defendant in error as their surety upon a promissory note for §1,250.27 ; that said Gresham and Simpson were insolvent when the judgment was rendered; that said Simpson died December 13,1864, leaving his widow and the plaintiffs in error, his children, and being seized of a tract of land containing forty acres, which land, describing it, was the homestead of said Simpson, and had been so occupied by his widow and children since his death ; that the widow had since died and the youngest child had reached the age of twenty-one years; that the land, at the time of Simpson’s death, was not worth over §1,000, but had become of more value at the time the bill was filed; that on the 20th day of December, 1864, the defendant in error paid the judgment, interest and cost in full, which amount had never been repaid to him, and prayed that the complainant might be subrogated to the rights of the plaintiff in the judgment, and that he might have a lien on the land for the payment of the same, etc., etc.

The answer admitted the judgment but not the payment thereof; the death of Simpson leaving widow and children, and .the land; the subsequent death of the widow; that the youngest child had attained the age of twenty-one years; relies upon the Statute of Limitations, two years, five years and seven years, and denies that complainant is entitled to relief as prayed in the bill.

The court, upon a hearing, entered a decree reviving the judgment for the use of the complainant, subrogating him to the rights of the plaintiff therein, and ordering a sale of the property in payment of the sum so found due for the judgment, interest, and cost. Error is assigned upon this decree.

A surety, who pays the debt of his principal, acquires a right of action against his principal, and may enforce it by the appropriate remedy at law. He may also invoke the aid of a court of equity, and be subrogated to the right of the creditor in any securities held by him against the principal, including the lien of a judgment in favor of the creditor against the principal and surety upon the original debt.

By the mere fact of payment the surety becomes the equitable assignee of all collateral securities, and, when necessary for’ his protection, of the principal undertaking itself. 3 Pomeroy’s Eq. Jur. section 1419 and note.

While the surety may thus have equitable relief, he is not absolved from the operation of the rules which are applied as to other suitors. It is one of the usual and ordinary conditions of relief administered in a court of equity that those who seek its aid shall have been diligent in the assertion and prosecution of their demands, and it has therefore become a settled doctrine that where a surety who has paid the debt does no act before his claim is barred at law by the Statute of Limitations, manifesting an intention to put himself in the place of the creditor, and thereby subrogate himself to the creditor’s rights, equity will not subrogate him to those rights. It is a general rule also that equity follows the law, and when in such cases a right does not exist at law, a court of chancery will not relieve. Subrogation, the creature of equity, will not be enforced at the expense of a legal right. Brandt on Suretyship, Sec. 267; Sheldon on Subrogation, Sec. 110; Rittenhouse v. Livering, 6 Watts & Serg. 190.

In this case the creditor obtained a judgment which was not a lien upon the property in question, because it was the debt- or’s homestead. Green v. Marks, 25 Ill. 221; Bliss v. Clark, 39 Ill. 590; Hartwell v. McDonald, 69 Ill. 293.

In the settlement of the estate in the probate court, this judgment would have rated no higher than a claim by simple contract. Turney v. Gates, 12 Ill. 141.

Had the principal not died the surety would have been barred of his remedy at law in five years from the payment of the debt, and he was bound to probate his claim within two years from the granting of letters of administration in order to participate in the funds inventoried; and yet he comes in a court of equity asking relief after the lapse of more than nineteen years, during which time no steps have been taken manifesting his intention to put himself in the place of the creditor, or to enforce his claim in any manner against the estate of his principal.

Not only was his right of action barred at law, but the right of the judgment creditor to revive the judgment, had it not been paid, was also barred. Gibbons v. Goodrich, 3 Bradwell, 590.

It is insisted, however, by defendant in error, that as the Statute of Limitations, sixteen years, is not set up in the answer, this last objection can not be made.

Such is the general rule of chancery practice as held in School Trustees v. Wright, 12 Ill. 432. The reason given in that case for applying the rule was, that complainant ought to have notice of the proposed defense so that he might amend his bill by inserting allegations accounting for the delay. But in Hall v. Fullerton, 69 Ill. 451, the court held the rule was not applicable in a case where the complainant undertook in advance of the defense to excuse himself for the apparent laches. See, also, Williams v. Rhodes, 81 Ill. 571.

In this case the bill gives in advance the reason for the delay, viz.: that the judgment could not be enforced by sale on execution so long as the land was occupied as a homestead by the widow and children, the youngest not being yet twenty-one years of age ; and upon the principle of the cases last cited it would he competent to consider as laches the delay for the period within which the judgment, if not paid, might have been revived, or sued upon in an action of debt, and hence the claim. must be deemed stale, and therefore not entitled to favorable notice in a court of equity.

It is not necessary, however, to depend upon this consideration, as in our opinion the delay for five years, within which the surety must have sued at law, and which is specifically set up as a defense in the answer, is a complete bar. Equity acts in such cases upon analogy to the law. Pomeroy’s Eq. Jur., Vol. 1, Sec. 418-19; Story’s Eq. Jur., Vol. 2, Sec. 1520.

Statutes of Limitation' arc based upon wise experience, and upon settled grounds of public policy, which are well recognized in both jurisdictions; and it is not material to inquiie whether a suit would have availed to collect the debt. The delay is held conclusive against the right.

The decree of the circuit court will be reversed and the cause remanded with directions to dismiss the bill at the cost of the complainant therein.

Reversed and remanded.


author: Conger, J.

text:
       George H. Cox v. E. G. T. Colles & Co.
    1. Mechanic’s lien.—The mere fact that the engineer attached the machine in question to the boiler, which was done without the knowledge or eqnsent of the owner, and was followed by an immediate disclaimer and detachment, would not make such an actual use of the machine in the mill as is required to constitute a mechanic's lien.
    2. Same.—Where a machine was bought and placed in the mill and an acceptance given therefor, the lien would attach. In a suit against the buyer for the purchase price, he would have the right to recoup any damages accruing to him on account of the machine failing to work as warranted.
    3. Acceptance.—The giving of the acceptances did not waive or release the lien, as there was no security upon them, and they were produced in court ready to he surrendered.
    4. Defenses available to purchaser’s grantee.—Any fact which would tend to destroy, in whole or in part, the purchaser’s liability, would be available to his grantee when called upon to discharge the lien.
    Error to the Circuit Court of McLean county; the Hon. O. T. Beeves, Judge, presiding.
    Opinion tiled December 4, 1885.
    Messrs. Williams, Burr & Capen, for appellant;
    as to a failure of warranty, cited McClure v. Williams, 65 Ill. 390; Benjamin on Sales, §§ 894, 903; Prickett v. McFadden, 8 Bradwell, 197.
    Mr. Thomas F. Tipton, for appellees;
    that the machines in question were appurtenant to the land, cited McLaughlin v. Johnson, 46 Ill. 163; Palmer v. Forbes, 23 Ill. 301; Cong. Church v. Fleming, 11 Iowa, 533.
    As to lien: McLagan v. Brown, 11 Ill. 526; Gaty v. Casey, 15 Ill. 192; Williams v. Chapman, 17 Ill. 425; McCollough v. Caldwell, 3 English (Ark.), 232.
    Neither the taking of the draft nor its negotiation, the same having been tendered back and filed, operated as a waiver of the lien: Bayard v. McGraw, 1 Bradwell, 135; Phillips on Mechanic’s Lien, §§ 276, 394; Green v. Ely, 2 Greene (Iowa), 508; Graham v. Colt, 4 Brown, 61; Muir v. Cross, 10 B. Monroe, 277; Swap v. James, 2 R. I. 270; Morton v. Austin, 12 Cush. 389; Edwards v. Derricson, 4 Dutcher, 39.

       Case of E. G. Colles & Co. v. George H. Cox et al., same as above.

   Conger, J.

The decree of the circuit court in reference to the claim against the Eagle Mills was in our opinion r’ght. The machines were never attached to the premises by the act or with the consent of the owner. They were purchased by Thomas J. Cox, but before being attached to the mill, he sold the premises to his brother, George H.

The act of the engineer in fitting them to the boiler without the knowledge or consent of George II., followed as it was by an immediate disclaimer and detachment, would not make such an actual use of the machine in the mill as is required to constitute a lien. “ The very essence of the lien * * * is the furnishing the materials of which the building is constructed. The act continues in the party furnishing the materials of which the building is erected, a quasi property in those materials, and others with which it has been commingled in the building, and allows him to follow it thus transformed for the purpose of getting his pay. There is no lien upon the premises till the material is put upon them Hunter v. Blanchard, 18 Ill. 324.

In reference to the decree against the Union Mills, it appears from the evidence that Thomas J. had bought the machine in question, placed it in the mill, and had given his acceptance for it, and afterward sold the property to George. The lien in this case had attached. The defense to the claim upon the part of George H. was that as there was a warranty of the machine when' placed in the mill, he had the right to show that such warranty had failed, and set up the damages arising therefrom, against the purchase price of the machine.

There can be no question that in a suit against Thomas J. for the purchase price of the machine, even after giving his acceptance therefor, he has the right to recoup any damages accruing to him on account of the machine failing to work as warranted. Reed v. Hastings, 61 Ill. 266; Mann v. Smyser, 76 Ill. 365; Ruff v. Jarrett, 94 Ill. 475; Wentworth v. Dons, 117 Mass. 14.

When Geo. H. purchased the property he took it burdened with this lien, in so far as it was a valid claim against Thomas J., and any fact which would tend to destroy in whole or in part his liability Avould be available to his grantee Avhen called upon to discharge the lien. Phillips on Mechanics’ Liens, Secs. 104, 421; Gray & Scott v. Phillips & Eaton, 35 Miss. 116.

It is not very clear from the record, why the circuit court held Geo. H. liable for the Avhole amount of the cUim, as the evidence clearly sIioavs some damages arising from the breach of Avarranfy, and this case should be tried again, giving Geo. H. the benefit of his defense.

The giving of the acceptances by Thomas J. did not Avaive or release the lien, as there Avas no security upon them, and they Avere produced in court ready to be surrendered. Brady v. Anderson, 24 Ill. 110; Clement v. Newton, 78 Ill. 427.

For the reasons indicated the decision of the circuit court in reference to the claim against the Eagle Mills Avill be affirmed, and that in reference to the claim against the Union Mills Avill be reversed and that cause remanded.

Affirmed in part and reversed and remanded in part.


author: Conger J.

text:
    Elizabeth A. Bergen v. Henry Keiser.
    Husband and wife.—When a married woman permits her husband to use and control her property she must see that his acts are within the poivers given him; and if she knows he has exceeded his authority in dealing with third parties, and the circumstances are such as good faith tothemwouldrequireherto speak, and she fails to do so, she will be as fully bound by his acts as though they were previously authorized.

      Appeal from the County Court of McLean county; the Hon. B. M. Benjamin, Judge, presiding.
    Opinion filed December 4, 1885.
    Messrs. Stevenson & Ewing, for appellant;
    cited Gilman v. Desbron, 45 Conn. 563; Flannery v. Rohrmayer, 46 Conn. 558; Jones v. Walker, 63 N. Y. 612; Wilson v. Schuck, 5 Bradwell, 572; Geary v. Hennessy, 9 Bradwell, 17; Wendt v. Martin, 89 Ill. 139; Bliss v. Patten, 5 R. I. 379. Bates Appeal, 55 Penn. State 356.
    Messrs. Herrick, Lucas & Herrick, for appellees;
    cited. Anderson v. Armstead, 69 Ill. 452; Lovell v. Williams, 125 Mass. 347; Arnold v. Speers, 130 Mass. 347; Ewell’s Evans on Agency, 23.
   Conger J.

This was an action of assumpsit brought by appellee against appellant for the value of certain machinery purchased by appellant’s husband and placed in the mill of appellant. It appears that Mrs. Bergen traded certain property owned by her in Jacksonville for three lots in the village of Minier, with the mill in question upon the east lot, the middle lot vacant, and a dwelling house upon the west lot, in which appellant with her husband and family resided. In 1880, after making the trade, they moved into the dwelling house and Bergen commenced running the mill. There was no contract or agreement between them about the mill, except they both say it was understood the whole family was to be supported by the earnings of the mill. Bergen was insolvent, having no property except $470 worth of corn. He carried on the milling business under the name of Bergen & Co. In March, 1882, Bergen visited appellee, who lived at Bloomington, and after some correspondence bought from him a “ meal dryer,” and appellee afterward came to Minier, jiut in the “meal .dryer,” and did other repairing to the mill, amounting in all to $649.82, which by the contract was to be paid for in cash when completed. Mrs. Bergen testifies that when her husband talked about putting in a meal dryer she objected to it; that she never authorized her husband to purchase it.

The evidence shows that during all the time appellee and his men were engaged in putting in this machinery and otherwise repairing the mill, about fourteen days, Mrs. Bergen was in the mill nearly every day; that her house where she resided Avas about eighty feet distant; that AAdien appellee came to begin the Avork appellant was by her husband introduced to him, and that she at one time expressed herself to one of the Avorkmen as being pleased Avitli the work, and during all this time made'no objection by AAmrd or act to the improvements being placed in the mill.

All the parties to the transaction are presumed to liaA-e known the law. Appellee had constractive notice at least that the title to the mill Avas in Mrs. Bergen, for her deed Avas upon record, although he says in fact he did not know it. As the improvements Avere of a permanent character and affixed to the building, she is presumed to have knoAvn that they became at once her property.

Assuming that Keiser kneAVAvhat the record would disclose, would he not have been fully Avarranted in supposing Bergen was acting as the agent of his Avife in ordering the improvements placed upon the property? Finding the husband in ¡ms-session of the mill he receives from him an order for its repair, and both before and during all the time of making such repair finds the wife, the owner of the mill, present nearly every day of the íavo Aveeks occupied in doing the Avork, not only making no objection, but by her actions leading him to believe that she was entirely satisfied Avitli the whole transaction.

A single Avord of objection from her to appellee would at once have prat him on his guard, and brought things to an issue. He could, upon learning that she was unwilling to either become personally liable, or permit her property to become so, have abandoned the work, or proceeded upon the credit alone of the husband.

Both Mrs. Bergen and her Imsband kneAV that he was insolvent ; and for this insolvent husband to pilace the labor and property of appellee, to the extent of 8600, in the mill of his wife, knowing he could not p:ay for it, and she to remain silent when good faith and common honesty required her to speak, and now ask to he protected from liability because she had not previously and formally authorized her husband to make the contract, would be a fraud which we are unwilling to sanction. We think the true rule in such cases is, when a married woman permits her husband to use and control her property she must see that his acts are within the powers given him, in order that frauds may not be practiced upon others. And if she knows that he has exceeded his authority in dealing with third parties, and the circumstances are such as good faith to them would require her to speak, and she fails to do so, she would be as fully bound by his acts as though they were previously authorized. Anderson v. Armstead, 69 Ill. 452; Lovell v. Williams, 125 Mass. 347; Arnold v. Speer, 130 Mass. 347.

Objection is made to a number of the instructions given for appellee, but the only one we think subject to criticism is the 5tli.

There was no evidence upon Avhich to base it, and it should not have been given; but the jury were so fully and fairly instructed by the others that avc do not think it could have wmrked harm to appellant.

The court properly refused Mbs. 1 and 2 of appellant’s refused instructions, because they entirely exclude the idea of any subsequent ratification of Bergen’s acts by his wife. Mo. 3 was properly refused because it states, “there is no evidence in the case upon A\dnch the jury Avould be authorized to find against the defendant,” also the 4th because it states that the fact that appellant knew that her husband was contracting for the machinery would not be sufficient to charge her personally ; this Avas doubtless true, but it was singling out and making prominent certain facts to the exclusion of others, and was therefore misleading.

The 5th was properly refused because it states there is no evidence of Bergen’s pecuniary condition, thereby utterly ignoring the evidence of Mrs. Bergen upon Liat point, and also in stating that Bergen’s pecuniary condition was immaterial.

The 6th is still more objectionable as it purports to tell the jury that a long statement of facts, which are recited, would not be sufficient to charge the defendant. They would all tend to do so, and to thus single out some of the facts relied upon for recovery, and tell the jury they would not authorize a recovery, has been so frequently condemned by the Supreme Court that nothing further need be said in reference to it.

Finding no substantial error in the record and believing that substantial justice has been done, the judgment of the circuit court will be affirmed.

Affirmed.


text:
    The Enterprise Distilling Co. v. R. D. Bradley.
    Actions ex contractu—Joint defendants.—In actions ex contractu against several defendants the judgment must he a unit—against all or none.
    Appeal from the Circuit Court of Tazewell county; the Hon. N. M. Laws, Judge, presiding.
    Opinion filed December 4, 1885.
    Mr. William Don Matts, for the appellants.
   Conger, J.

This was an action brought by appellee against the appellant and Edward Spellman and James Dolieny, before a justice of the peace, to recover for services rendered as a physician, upon the alleged employment of all of said defendants—judgment against all for $45.50—whereupon said defendants all appealed to the circuit court, and upon trial in that court a verdict was rendered against appellant alone, without the suit being dismissed as to the other defendants. Hpon this verdict judgment was entered against appellant, and it appeals. This was error. It is an elementary principle that in actions ex contractu against several defendants the judgment is a unit; it must he rendered against all or none.

This is the universal rule at common law. The exception is when the defense is personal, as infancy, or bankruptcy, or the like. Russell v. Hogan, 1 Scam. 552; Fuller v. Robb, 26 Ill. 246; Faulk v. Kellums, 54 Ill. 188.

Appellee’s instructions are both wrong. They tell the jury that they may find against any or either of the defendants who may have employed the plaintiff. If the defendants were not all liable on the alleged contract, then those not so liable should have been dismissed from the case, so that the verdict and judgment could have been against all the defendants against whom the action was pending.

Judgment reversed and cause remanded.


text:
    Henry C. Cunningham v. The N. O. Nelson Manufacturing Co.
    1. Chattel mortgage—Priority.—A person taking a second mortgage upon property before the maturity of a prior one stands substantially in the same position as a purchaser and should he governed by the same principles.
    2. Same.—Where appellee had a first chattel mortgage on property and before its maturity appellants took a second one, and appellee delayed foreclosing his mortgage until several months after maturity, but before the maturity of appellants’ mortgage. Held that appellants could take no advantage of appellee’s delay in taking possession.
    Appeal from the Circuit Court of Greeue county; the Hon. Cyrus Epler, Judge, presiding.
    Opinion filed December 4, 1885.
    Messrs. Withees & Henshaw, for ajjpellants;
    that by neglecting to take possession at the maturity of the mortgage appellee allowed the continuing existing lien of the appellants to attach as a prior lien the same as an execution would, while in the hands of an officer, cited Burnham v. Muller, 61 Ill. 456; Reed v. Eames, 19 Ill. 596; Funk v. Staats, 24 Ill. 633; Hanford v. Obrecht, 49 Ill. 146; Wylder v. Crane, 53 Ill. 490.
    Mr. W. M. Ward, for appellee;
    that the second mortgagee is in the position of a purchaser before the debt is due, cited Arnold v. Stock, 81 Ill. 407; Gundy v. Biteler, 6 Bradwell, 510; Van Pelt v. Knight, 19 Ill. 544.
   Conger, J.

It appears from the record in this case, that on the 19 th day of May, 1883, one Henry Bo well executed a chattel mortgage to the N. O. Nelson Manufacturing Co., the appellee, upon an engine and some other property, to secure a series of four notes, the last of which matured November 13, 1883. The first two of the notes were paid; the last two were not.

On Sept. 19,1883, Powell executed a second mortgage on the same property to appellants to secure a note due Sept. 19, 1884, with the usual insecurity clause. Both mortgages were duly acknowledged and recorded immediately after their execution.

Appellee on the 23d of June, 1884, more than seven months after the maturity of its debt, took possession of the property, and appellants upon the next day, claiming under their second mortgage, after demand, replevied the mortgaged property.

Hpon trial in the circuit court, judgment was rendered in favor of appellee and a return of the property awarded.

The single question made upon the record is, whether the manufacturing company lost its lien as against the rights of the second mortgagees, by failing to take possession on the maturity of its debt.

If appellants are to be considered in the light of purchasers from the mortgagor, then, it is clear they could take no advantage of appellee’s delay in taking possession. Arnold v. Stock, 81 Ill. 407.

We think a person taking.a second mortgage upon property, before the maturity of a prior one, stands substantially in the same position as a purchaser, and should be governed by the same principles as those announced in the foregoing case.

When the second mortgage was given, the possession of the property in Powell was consistent with the terms and conditions of the first; and appellants took with full notice Of it, and subordinate to that incumbrance.

After the maturity of the first mortgage, the continued possession by Powell was no fraud or injary to- appellants. They were not misled by it, nor induced to take any steps by reason of such continuing possession. Van Pelt v. Knight, 19 Ill. 545.

Finding no error in the record the judgment will be affirmed-

Affirmed.


text:
    Wooten Harris, Ex’r, etc. v. Phoebe A. Millard.
    1. Administbatob’s account—Exceptions.—Each item in an administrator’s account rendered, is a separate claim depending alone upon its own merits, having no connection with other items. An appeal having been taken to this court on the second exception alone, that is the only-question this court will pass upon.
    2. Executob paying- claims—Cbedit aeteb two yeabs limitation.—Where an executor, before the two years limitation, paid off two notes, and after the expiration of the two years, when making his report to the county court, produced the notes, a,nd proved them valid and just claims against the estate. Held, that it was proper for the court to allow the executor credit for such payments.
    3. Sale op beat, estate by executob.—It was proper that the executor who had charged himself with the proceeds of the sale of the real estate should have credit for the payment made by him in discharge of the incumbrance.
    Appeal from the Circuit Court of Montgomery county; the Hon. J. J. Phillips, Judge, presiding.
    Opinion filed December 4, 1885.

      Messrs. Laxe & Cooper and Mr. C. W. Bliss, for appellant;
    cited Munroe v. Holmes, 13 Allen, 111; Ames v. Jackson, 115 Mass. 509; Dickson v. Arnes, 8 Pick. 396.
    Mr. James M. Truitt, for appellee;
    cited Bunnell v. Post, 25 Minn. 376.
   Conger, J.

Appellant filed his report in the county court as executor of the estate of Ira Millard, deceased, to which report appellee filed five exceptions. After the decision of the county court, an appeal was taken to the circuit court, wherein each of the five exceptions were passed upon as follows: that appellee’s first and third exceptions be overruled, to which she excepted; that appellee’s fourth exception be sustained to the extent and amount of two attorney fees of §25 each, and the rest of said exception be overruled, to which ruling neither party saved an exception; that the fifth exception be overruled without prejudice to appellee and with leave to prosecute the same at such future time as may be proper; to which appellee excepted. The ruling upon the second exception, which will be more fully noticed hereafter, was excepted to in part by both parties.

An appeal having been taken to this court by the appellant, we are of opinion that the only question before us is in the ruling of the court upon the second exception. The appellant was satisfied, we presume, with the rulings of the circuit court upon all the exceptions save the second, and desires the opinion of this court upon that ruling alone.

The appellee, while excepting to the ruling of the circuit court upon the first, third and fifth exceptions, takes no appeal, and we think the same principle applies on appeals from the circuit court to this court, as in appeals from the county to the circuit court.

In Morgan, Adm., v. Morgan, 83 Ill. 196, it is said: “Each item in the administrator’s account rendered is a separate claim, depending alone upon its own merits, having no connection with other items. The judgment must then, necessarily, be a separate judgment, from which an appeal may be taken.”

It is contended, however, by appellee, that as she has the privilege of filing cross-errors, she may by so doing question any ruling of the circuit court.

The cross-errors that she has the right to assign are confined, however, to the subject-matter that is properly in this court for review, which, as has been said, is the ruling of the circuit court upon the second exception.

The facts upon which the second exception are based, are as follows:

Ira Millard, deceased, in his lifetime was indebted to one Lucy Haskell, which indebtedness was represented by five promissory notes, and secured by a trust deed upon eighty acres of his land.

Appellant, as executor of his estate, on May 8, 1878, paid off one of the notes amounting to $940.30, and on July 10, 1849, paid another amounting to $1,040.58. Both these payments were made within two years from the date of his letters, and the notes taken up and held by the executor as vouchers.

Some time after the expiration of the two years, the executor, when making his report to the county court, produced these notes, proved they were valid and just claims against the estate, and was, by the comt, given credit for such payments on his account.. Upon appeal to the circuit court, it refused to allow the executor credit for these payments, and the correctness of such ruling is one of the questions we are called upon to determine.

Appellee insists that because the executor did not formally present these notes to the county court, and have them allowed in his own favor as a claim against the estate within two years, he must entirely lose the benefit of his payment, and the circuit court so held. This we think was error.

The 73d Sec. of Chap. 3, R. S. provides:

If an executor or administrator pays a claim before the same is allowed as aforesaid, said court shall require such executor or administrator to establish the validity of such claim, by the like evidence as is required in other cases, before the same is classed, and (he) be credited therewith.”

The 72d section provides: “ When an executor or administrator has a demand against his testator or intestate’s estate, he shall file his demand as other persons, and the court shall appoint some discreet person to appear and defend for the estate, and upon the hearing, the court or jury shall allow such demand, or such part thereof as is legally established, or reject the same, as shall appeal1 just.”

It is apparent from a comparison of these two sections that demands, as used in the 72d section do not stand upon the same footing as the demand or claim of a,n executor or administrator to receive proper credit when he has satisfied a debt existing against his testator or intestate, before its allowance by the county court.

Otherwise the 73d section would be mere surplusage, for the 72d section would cover the entire ground.

The great object of the two years limitation is to bring about a prompt settlement of the estate, by requiring all creditors who desire to participate in the inventoried assets to present their claims within that time, and executors and administrators having demands against an estate not arising out of payments made by them in such capacity are like other creditors of the estate and are governed by the same law.

But when a claim has been paid by the executor within the two years, he has at the expiration of such time full knowledge of the entire indebtedness of the estate, and the settlement of the estate, and payments of debts, legacies and distributive shares is not delayed, or the amount to be paid, changed, or interfered with, by a failure to have such claim formally allowed by the court. •

As the law does not intend that an executor or administrator shall in any case determine the validity of claims against the estate, or the propriety of their payments, if he shall, in ad-A'ance of the order of the court, and within two years from the date of his letters pay them, he does so with the requirements of the 43d section before him, by which he assumes the burden of satisfying the court by competent evidence that such payments were made to discharge valid, just and subsisting debts against the estate ; and if he does this, he has in our judgment met the'requirements of the 43d section, and is entitled to credit, therefore, even though such report and evidence is submitted to the court after the two years have expired.

The other question raised by the second exception arises from these circumstances: After the payment to Mrs. Haskell of the two notes already mentioned there remained three others unpaid. The will of Ira Willard, deceased, appellant’s testator, contained the following clause :

“It is my will that all my just debts be paid ; that sufficient of my personal property, if necessary; be sold for that purpose. If my personal property should be insufficient, it is my will that my executor shall sell sufficient of my real estate to complete the payment of my debts.” Hnder the power, the executor, having had the eighty acres incumbered by the trust deed appraised, proceeded on the 6tli of March, 1880, to sell the same at public sale, offering it clear of the incumbrance of the trust deed, by publicly assuming as executor the unpaid indebtedness covered by such trust deed, and agreeing to pay off and discharge the same out of the proceeds of the sale. The land sold for $8,440, and no complaint is made that it did not bring its full value. The executor reported his action in the premises, including the fact that the trust deed was to be paid out of the proceeds of the sale to the county court; which report was approved and he was ordered to execute a conveyance in pursuance of his report.

Out of the proceeds of such sale he paid off the three other notes, which amounted to $3,387.95, leaving a balance in his hands of $52.05. The executor in his report charged himself with the amount of the sale, $3,440, and credited himself with the amount paid, $3,387.91, in discharging the incumbrance, being in effect a charge against himself of the excess of $52.05.

The circuit court approved these items; to which ruling appellee excepts, and insists that the executor should be charged with the proceeds of the sale, but should have no credit for the payment made in discharge of the incumbrance.

Such a doctrine, to be sustained at all, must of necessity-have for its support some rigid technical rule of law, for its mere statement strikes one as inequitable and unjust.

The argument of counsel for appellee seems to proceed upon the theory that these payments can only be allowed to the executor upon che doctrine of subrogation; and he denies that there is or can be any application of that doctrine to the facts in this case. We do not think it necessary to follow or discuss the argument of counsel upon this point, as we think justice can be done all parties without relying upon the doctrine of subrogation.

The true explanation of the difficulty lies, we think, in the fact that the executor, both in making the sale and his report, makes the mistake of incumbering the record with matters Avhich should not be noticed. Because he has made this mistake, however, is no ground why others, who have in no way been injured by it, should be permitted to wrong him.

The executor should in his report have charged himself with the $52.05. This amount Avas assets for which he should account. Had he sold the land in form, as he did in effect, subject to the incumbrance, leaving the purchaser to pay it, the full amount paid by the purchaser and received by the executor Avould have been this sum of $52.05. The purchaser would then have paid off the incumbrance himself, instead of using the executor as a mere channel through which his money passed to extinguish it.

The legal effect of the executor’s acts and reports amounts to this, and no more. It was the duty of the county court, in the exercise of its equitable jurisdiction in the settlement of estates, to so treat it, which it did.

We think the circuit court in approving the action of the county court upon this question decided rightly.

The judgment will be reversed and the cause remanded, with, directions to the circuit court to overrule appellee’s second exception and confirm the report of appellant upon th3 items embraced in such exception.

Reversed and remanded.


text:
    William E. Hughes v. Hartford Fire Insurance Co. et al.
    1. Subrogation.—While the right of subrogation does not arise by contract, such a right, like all other legal or equitable rights, may be qualified or extinguished by contract.
    2. Construction of contract.—The court is of opinion that the construction of the contract of assignment in this case is, that $5,000 of the money to be realized out of the judgment was to be paid to appellees when collected from the railroad company, and as the amount was paid at the time agreed appellees are not entitled to interest.
    Appeal from the Circuit Court of McLean county; the lion. O. T. Beeves, Judge, presiding.
    Opinion filed December 4, 1885.
    Mr. William E. Hughes, for appellant;
    that a court of equity can not change a contract, cited Vallette v. White Water V. C. Co., 4 McLean, 192; Cassady v. Woodbury, 13 Ia. 113.
    Messrs. Stevenson & Ewing and Mr. Hamilton Spencer, for appellees.
   Conger J.

This was an agreed case the facts of which necessary to an understanding of the point at issue are substantially as follows:

February 14,1872, the Mormal Hotel, a building owned by William A. Pennell, at Mormal, 111., was destroyed by fire, through the negligence, as alleged, of the Chicago & Alton B. B. Co. A suit was instituted against the railroad company for the loss, which finally resulted in a judgment against the company on the 17th day of April, 1882, for $18,000, and on the 17th day of September, 1884, the company paid this judgment, which, with interest thereon, amounted to $20,-527.40 to the cleric of the Circuit Court of McLean county.

When the building was burned the Hartford Fire Ins. Co. and the AEtna Fire Ins. Co. each had a policy of $2,500 thereon, which, within sixty days after the loss, they paid to Pennell, and afterward, in 1877, filed their bill of interpleader against said Pennell and others, claiming the right to be subrogated ■ to the amount of the $5,000 they had paid. The bill was dismissed by the circuit court, and on appeal to the appellate court this decision of the circuit court was reversed and the cause remanded; whereupon, instead of re-docketing the case, the parties made an agreement setting forth that the insurance companies should pay Pennell $250, as their contribution to the costs and expenses of prosecuting the suit against the railroad company; should also furnish attorneys to assist in such suit; and Pennell, in consideration thereof, recognizes the right of the insurance companies to be subrogated to any judgment recovered against the railroad company, and agrees to waive further claim on them foi; contribution for costs jand expenses. April 22, 1882, being a few days after the recovery of the judgment against the railroad company, Pennell assigned the same to Wm. E. Hughes, and Wm. D. Haynie for various purposes, one of which is expressed in .the following language, i. e.;

“The sum of $5,000 is to be received by said Wm. E. Hughes in trust for said Hartford Fire Ins. Co., and the iEtna Fire Ins. Co., in full of their rights of subrogation to said judgment, to be paid to them, or to their attorneys, $2,500 to each company with full power hereby given to said Hughes to re-assign out of the judgment the amount so secured above to said insurance companies or their attorneys. The residue of the said judgment and interest, and all my right, life and interest therein, is hereby assigned absolutely to Wm. E. Hughes, to pay him for his time and attention to said cause; etc.” To carry out the foregoing assignment, Wm. E. Hughes ? on the 25th of April, 1882, executed to Jas. S. Ewing, as attorney for the two insurance companies, an assignment which, after reciting the provision above set forth, says:

“How, therefore, by virtue of the said assignment so made to me by the said Wm. A. Pennell, I do hereby transfer, set over and assign to James S. Ewing, attorney for the Hartford Fire Insurance Company, and for the JEtna Fire Insurance Company, the sum of $5,000, part and parcel of the said judgment now remaining of record in the McLean Circuit Court, to be paid out of said judgment when collected, in favor of Wm. A. Pennell, plaintiff, and against the C. & A. E. E. Co., defendant, dated on or about April 17, 1882, and the said Ewing is hereby authorized to receipt for and settle the said part of said judgment hereby assigned to him, etc.”

On the 18tli day of September, 1884, being the next day after the railroad company paid into court the amount of the judgment against it, by the consent and agreement of counsel the sum of $5,000 was paid to Ewing for the two com anies by the clcik of the court, under.'an order of the court directing such payment.

Upon the foregoing facts it is claimed by the insurance companies that they are entitled to receive so much of the interest upon said judgment of $18,000 against the C. & A. E. E. Co. as accrued upon their $5,000, amounting to $725, and the circuit court so held, which decision is assigned for error.

It is insisted by appellant that the rights of the appellees arise out of and must be governed by the contract of assignment; while appellees deny this proposition and urge that no claim for subrogation ever grows out of a contract. It arises, if at all, by operation of law, and that appellees’ right of subrogation arose at the moment they paid the amount of their insurance.

We fully assent to this latter proposition, but are unable to see its application to the case at bar. While it is true the right of subrogation does not arise by contract, such a right, like all other legal or equitable rights, may be qualified, or extinguished by contract. We are therefore of opinion that the question presented must be determined by the construction to be given to the assignments; for whatever the original rights of the parties may have beén under the doctrine of subrogation, they are now controlled and defined by the contract of assignment.

By the assignment of Pennell it will be noticed it is the sum of $5,000 that is to be received by Hughes in trust for the insurance companies, to be paid to them, with full power given Hughes to re-assign, out of the judgment, the amount so secured, leaving the residue of the judgment and interest in Hughes as compensation for his services to Pennell.

It is not a portion of the judgment itself which is thus transferred, but a sum of money to be paid out of the judgment. In Hughes’ assignment the same language’ is used, except the words “ part and parcel of the said judgment” are added; but these words do not change the meaning it had before; they only serve to point out more definitely the source from which the money was to be derived.

Again, the language, “to be paid out of said judgment when collected,” is inconsistent with the theory that a portion of the judgment itself was intended to he transferred, for in such case tlie assignee would own and control such portion so assigned him, and the further statement that such portion should be paid him would be useless.

We think the reasonable construction of all lie language contained in the two assignments is, that So,000 of the money to be realized out of the judgment was to he paid to appellees when collected from the railroad company. The amount was so paid in strict accordance with tlie terms of the contract, and at the time agreed upon, and therefore we think appellees were not entitled to the interest claimed, but that it must be left in the hands of appellant, where it seems Pennell, by his deed of assignment, intended to leave it. The judgment will he reversed and the cause remanded.

Be versed and remanded.


text:
    Chicago & Alton Railroad Co. v. Charles E. Henry.
    Attorney’s ebb—Amending account.—Where in an action for killing stock appellee did not claim attorney fees when he filed his account with the justice. Held, that it was proper to permit him on trial in the circuit court to amend his account and add such fees.

      Appeal from the Circuit Court of Morgan county ; the Hon. Cyrus Epler, Judge, presiding.
    Opinion filed December 4, 1885
    Messrs. Brown & Kirby, for appellant.
    Mr. William A. Crawley, for appellee ;
    that the amend, ment was proper, cited W., St. L. & P. Ry. Co. v. Lavieux 14 Bradwell, 469.
   Conger, J.

This was an action originally commenced before a justice of the peace by a}3 police against appellant, and on appeal to the circuit court a judgment was rendered against appellant for §81 and costs. The account as filed with the justice, was for damages to the amount of §61, claimed for killing one steer and four pigs of appellee by the train of appellant. During the trial in the circuit court, appellee was allowed, against the objection of appellant, to amend his account by adding thereto a charge of twenty dollars for attorney’s fees.

The evidence is quite conflicting, both in reference to the question whether the steer was killed upon a public crossing, or at a point where the company were required to fence, and as to the question of negligence upon the part of the company’s employes, and in such cases, unless the jury have been erroneously instructed upon questions of law arising in the case, the verdict ought not to be disturbed.

The first assignment of error is based upon the fact that the circuit court permitted appellee to amend his account and add a charge for attorney fees, upon the trial of the cause. It is insisted that the claim for attorney fees may be waived and that appellee, by not claiming it when he filed his account with the justice, did waive such claim, and is precluded from afterward claiming it. In P. D. & E. Ry. Co. v. Duggan, 109 Ill. 537, the court uses this language :

“It is objected, first, that no claim for attorney fees was filed with the bill of particulars in this case; that that was simply a memorandum of the stock killed, audits value, and no notice was given defendant of sucha claim for attorney’s fees until the witness was called to prove their value. In respect of this we think the statute itself is sufficient notice to the defendant that the claim will be made, and the defendant should be prepared to make any resistance to it.” This case we think fully settles the question raised.

Objection is made to appellee’s 4th and 5th instructions for the reason, as claimed by appellant, that it does not clearly inform the jury that the right to recover for attorney fees should be limited to fees for services for recovering damages resulting from injury to stock on account of failure to fence, etc.

We fail to see the force of this criticism. The evidence of Mr. Whitlock, the witness examined upon the subject of the value of attorney fees, is based solely upon a recovery for the pigs killed, while both instructions in unequivocal language limit the right of recovery to the same grounds.

The modification of appellant’s 7th instruction worked no hardship from the fact that the jury found the appellant liao[q for the steer, and in such case the question of the tender for the pigs was not important.

From a careful examination of the whole record we think substantial justice has been done, and therefore the judgment of the circuit court will be affirmed.

Affirmed.


text:
    Mary Ann Schmidt et al. v. Daniel Pierce.
    Conservator—Questioning appointment in collateral proceeding.—In a bill to foreclose a-mortgage alleged to have been made to appellee by a conservator of an insane person by virtue of an order of the county court, the defense sought to question the validity of the appointment of the conservator, alleging that the jury which found the party non compos mentis was composed of but six men, and therefore the appointment, was void. Held, that the county court, having acquired jurisdiction over the subject-matter and the person, its proceedings can not be attacked in this collateral proceeding.
    Error to the Circuit Court of McLean county; the Hon. O. T. Beeves, Judge, presiding.
    Opinion filed December 4, 1885.
    Mr. George A. Hill, for plaintiff in error.
    Messrs. Blades & Heville, for defendant in error.
   Conger, J.

This was a bill to foreclose a mortgage alleged to have been made to appellee by Marshall Stailt, as conservator of Mary Ann Schmidt, by virtue of an order authorizing the same made by the County Court of De Kalb county.

The defense seeks to question the validity of the appointment of the conservator, and the record discloses the fact that the jury which found Mrs. Schmidt non compos mentis was composed of but six men, and therefore, appellants insist, the ap lointmentof the conservator which followed as a result of the finding was unauthorized, the whole proceedings were void, and can be attacked in this collateral proceeding. We can not assent to this view of the case. The county court, at the time of the alleged appointment, had jurisdiction of the subject-matter and of the person of appellant, and the very question now sought to be raised in this collateral proceeding was passed upon and considered by the court. It became the duty of that court to determine the question of the number required to constitute a jury, as well as all other questions piroperly arising, and whether the court erred in any of those questions or conclusions, can not be inquired into in a collateral proceeding of this kind.

Jurisdiction has been thus defined: The power to hear and determine a cause is jurisdiction. It is c-oram judice whenever a case is piresented which brings this power into action.

The county court, after having once obtained jurisdiction over the subject-matter and the pierson of appellant, would not lose it, no matter how erroneous its proceedings.

We think the case of Dodge, Conservator, v. Cole et al., 97 Ill. 338, conclusive upon the point.

The decree of the circuit court will he affirmed.

Affirmed.