text:
    Mary Hickey et al., Appellees, v. Mark W. Barrett et al., Appellants.
    1. Appeal and error, § 725

      —when cross-bill not considered. The Appellate Court cannot consider on appeal a cross-bill not contained in the record.
    2. Mortgages, § 23

      —what constitutes mere option to buy bach land not rendering deed absolute on its face a mortgage. Where land is conveyed to a person to secure a debt, and, upon the debt becoming due, an agreement is entered into with a third person whereby the latter is to advance the money to pay the debt and receive a deed from the first grantee, and it is further agreed between the original grantors and the second grantee that in lieu of interest the latter shall receive a rental until such time as the original grantors desire and are able to take up the indebtedness, and such second grantee agrees to make a quitclaim deed upon payment of the sum due, the agreement between the original grantors and the second grantee amounts but to an option to buy back the land at some time in the future, if the original grantors should desire and should be able to do so, and such an option does not render a deed absolute on its face a mortgage.
    3. Mortgages, § 23

      —when deed absolute on its face conveys legal title. A deed by the owners of land to another from whom they procured a loan of money, which deed is absolute on its face, conveys the legal title to the grantee,, and his conveyance to a third person furnishing the money to take up the alleged loan passes the legal title to the latter.
    4. Equity, § 258

      —when additional and inconsistent d'efense not set up in amended answer. On a bill by the alleged owners of land against a second grantee to have a deed from the prior grantee to the second grantee declared a mortgage, where the original answer averred that the second grantee became vested with title to the premises by virtue of the deed from the first grantee, an amendment to such answer averring that complainants, for the express purpose of disclaiming any right, title or interest in the premises, and in consideration that the second grantee would buy the premises and lease them to complainants as long as their mother lived, executed a warranty deed to such second grantee, did not set up a defense additional and inconsistent with the defense averred in the original answer.
    5. Mobtgages, § 29

      —what constitutes variance in suit to have deed declared mortgage. There is a variance between the bill and proofs, in a suit by the alleged owners of land against a second grantee to have a deed from a prior grantee to the second grantee declared a mortgage, where it is charged in the bill that the second grantee agreed to reconvey such land when complainants desired and would be able to take up the indebtedness, and there is proof that at the time of the transaction between such second grantee and complainants for taking up of the alleged loan owed by complainants to the first grantee, a written contract was entered into by which the second grantee gave complainants the right to redeem within 5 years.
    6. Mobtgages, $ 31

      —who has burden of proof to show that deed absolute on face is intended as mortgage. The burden rests upon the party alleging that a deed absolute on its face was intended as a mortgage, to establish such fact.
    7. Mobtgages, § 32

      —what is evidence that deeds not intended as. The fact that two successive grantees of land, one of the deeds to which land was from the first grantee to the second grantee, refused to loan money to the original grantors but only offered to advance it upon condition that such grantors execute an absolute deed to the land, is strong evidence that the deeds were never intended to be mortgages.
    8. Mobtgages, $ 23

      —when purchaser from holder of deed procures good title. Where a party having a right to redeem from a mortgage, in form an absolute deed, directs the holder of the legal title to convey the premises to a purchaser, such purchaser takes the title divested of the condition of defeasance.
    9. Appeal and ebbob, § 1399

      —weight of finding of master in chancery. Where a master in chancery saw the witnesses and heard them testify, his finding of facts is entitled to consideration.
    10. Mobtgages, § 32

      —when evidence to show deed to be mortgage carefully scrutinized. Evidence attempting to establish a deed absolute on its face to be a mortgage will be scrutinized with great care, after a delay of 19 years in asserting the right to redeem and after farm values have greatly increased.
    11. Mortgages, § 32

      —when agreement that deed should he in fact mortgage not shown. Evidence held insufficient to show that there was any agreement between complainants and a second grantee that a deed to the latter from a prior grantee, from whom complainants had procured a loan of money, should be in fact a mortgage to secure an alleged debt for money advanced to pay off the loan from the prior grantee.
    Appeal from the Circuit Court of Logan county; the Hon. Thomas M. Harris, Judge, presiding. Heard in this court at the October term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Reversed and remanded with directions.
    Opinion filed July 15, 1918.
    Beach & Trapp and James E. Miller, for appellants.
    Covet & Woods, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

Mary Hickey and Sallie Hickey filed their hill in the Circuit Court of Logan county to have declared a resulting trust for an accounting and for general relief. It is alleged, in substance, in the bill that they obtained title to a certain 80-acre tract of land in Logan county on December 30, 1892, by a warranty deed executed by Elizabeth Hickey, which was made subject to a mortgage to secure $800 held by the defendant Barrett; that on August 20, 1895, complainants and said Elizabeth Hickey made and delivered a warranty deed of said premises to one Harry C. Thompson to secure the payment of $5,500, then due and owing to said Thompson; that by the terms of the written agreement which accompanied said warranty deed to Thompson, it was agreed that upon the remittance to said Thompson of the said $5,500 and interest thereon, the said Thompson should reconvey by quitclaim, deed the title to said property to complainants ; that in lieu of interest which would accrue upon said indebtedness,' complainants should pay Thompson a certain rental for said premises, which complainants did each year during the continuance of said loan; that at no time did Thompson or complainants ever recognize said warranty deed as anything but a mortgage to secure the payment of said indebtedness; that complainants paid off and discharged the mortgage for $800 then due and owing to Barrett. That on August 15, 1900, the indebtedness to Thompson became due by the terms of said written agreement and he was desirous of receiving his money and transfer to complainants the title to said premises so held by him by way of mortgage under said warranty deed; that complainants applied to said Barrett, defendant, for a loan to take up said indebtedness then due Thompson; that Barrett agreed to loan complainants the said sum of money, and it was agreed by them and Barrett that the latter was to pay Thompson $5,500 in discharge of Thompson’s loan and was to receive from Thompson a quitclaim deed of said property as security for said amount so paid by Barrett to Thompson; that it was further agreed by complainants and Barrett that in lieu of interest upon said $5,500, Barrett was to receive a rental for said lands until such time as complainants desired to and would be able to take up said indebtedness, and Barrett agreed to make a quitclaim deed of said property to complainants upon the payment of said sum; that in pursuance of said agreement with Barrett, on August 15, 1900, complainants caused Thompson to make a quitclaim deed of said premises to Barrett to secure the payment of said indebtedness and Barrett paid to Thompson for complainants the sum of $5,500 and received and accepted said quitclaim deed from Thompson of said property as security for said indebtedness ; that complainants executed and delivered to Barrett written leases for said lands and paid, in lieu of interest upon said indebtedness, rents as provided in said leases; that Barrett at no time claimed to own any right, title or interest in said property except the holding of said deed as security for the money advanced by him to pay off the loan of Thompson. That on December 6,1911, without knowledge or consent of complainants, George White, defendant, made and delivered to William E. White, defendant, a quitclaim deed of said premises for the pretended consideration of $22,000; that at the time of the execution of said deed, George White owned no right, title or interest in said premises or any part thereof, but said deed was made solely to defraud complainants and to cloud their title. That on January 2, 1912, Barrett and wife, without the consent or knowledge of complainants, made and delivered a deed of said premises to said George White for a pretended consideration of $19,800; that said deed was fraudulent and executed by Barrett to defraud complainants of their right in said land and if possible to cut off their right of redemption therein. That complainants at all times were ready and willing and offered to pay Barrett the amount of said indebtedness, but that he, in order to carry out the fraudulent purposes aforesaid, told complainants that he did not need the money, to keep the money, and when in the future, at any time they desired to redeem the premises, he would then accept the money and make them a quitclaim deed to the land. That said George White and William E. White knew that Barrett did not own any title or interest in said property except the quitclaim deed from Thompson as security for said loan of $5,500, and that they joined and conspired with Barrett in the fraudulent purpose and design to cheat and defraud complainants out of the title to said land. That on March 1, 1912, William E. White, with full knowledge of the rights of complainants to said premises, made and delivered a mortgage to the New Holland State Bank of New Holland, Hlinois, for the pretended sum of $4,000; that said bank had full knowledge of the rights and claims of said complainants in said premises, and that said White did not own any title thereto which he could mortgage to any one and that said mortgage, as to complainants, was fraudulent and void. That on January 9, 1913, William E. White brought a suit at law in the Circuit Court of Logan county to recover possession of said land and complainants were unable to make a legal defense to said cause on account of said deeds aforesaid, and were compelled to and did on March 1, 1913, deliver possession of said premises to William E. White and were compelled to pay the rentals mentioned in the lease which had been made to Barrett and which had been fraudulently assigned to William E. White for the year 1912, by Barrett, which rents amounted to $600. That the rentals paid to Barrett were in excess of the rate of interest allowed by law and were usurious; that the fair cash market value of the land conveyed by Barrett to George White was $20,000, and that neither George White, William E. l¥hite or any one for them has ever paid complainants for said title nor received any deed of said land from complainants; that the lands held by Barrett were in trust for complainants on condition that they pay said $5,500; that the title so conveyed by bim created a resulting trust in favor of complainants and they are entitled in equity to have the legal title transferred to them upon the payment of said sum of $5,500, and they offer and tender into court said sum of $5,500 and offer to pay the same to the person the court shall find to be the holder of the said loan against said land. That the contract between Barrett and complainants was evidenced by writing, and that Barrett kept said contract and has ever since refused to permit complainants to see the same or deliver it to them, and is now fraudulently claiming that there never was a written contract and that he owns the land. That np to March 1, 1913, complainants had been in the open, adverse, peaceable and exclusive possession of said land, claiming to be the owners thereof, subject to said incumbrance of $5,500, and have paid all taxes legally assessed against said property. That all the defendants had full knowledge that complainants were owners of said land when they received the various conveyances and mortgages aforesaid. That upon a final hearing it be decreed that a resulting trust in favor of complainants be declared subject only to the incumbrance of $5,500; that a quitclaim deed be ordered to be made within a short day of said premises by the parties who appear to hold the legal title, to complainants herein; that the mortgage to the New Holland State Bank be released by the bank and that in default of said deeds being made and said release, the master in chancery make said deeds and release; that in case the court should find the legal title is vested in G-eorge White or William E. White, then that an accounting be taken against Barrett of the value of said property after deducting the incumbrance of $5,500.

The answer of Barrett denies that the conveyance from complainants to Barrett was made to secure the payment of the said sum of $5,500, and avers, upon information and belief, that said conveyance was an absolute conveyance of said premises with a parole agreement that, if complainants desired to purchase said premises within the term of one year from the date of said deed, said Thompson would sell and convey the same to complainants for said sum, but that complainants did not avail themselves of said option to so purchase and said option was entirely lost and had expired; denies that complainants applied to Barrett for a loan of $5,500; that he loaned or agreed to loan said sum, that he agreed to take said premises as security, or to receive said deed as security for said sum, or that he ever agreed to purchase or did purchase said premises from Thompson in any other way than as an absolute, indefeasible, outright purchase of the whole of said premises in fee simple. The answer further avers that the said Elizabeth Hickey was the mother of complainants, was an old woman and had lived upon said premises for many' years, and that complainants, prior to and at the time he so purchased the premises, requested him to purchase said premises and lease the same to them as his tenants so that their mother might continue to reside with them thereon, and that she did in fact so reside with them thereon until her death; that when he purchased said premises he did so with the express understanding with complainants that he did purchase the absolute title thereto, to which they both expressly assented and agreed; that after he purchased the premises he rented the same each' year by written lease to complainants, who resided on said premises only as tenants and paid rent therefor; that he never consented or agreed to receive rent in lieu of interest and never agreed that complainants should have the right to pay said sum of $5,500, and that he would then quitclaim his interest thereto to them. The answer also sets up the defense of the statute of limitations and of laches and avers the sale to the "Whites was made in good faith, and denies all fraud and conspiracy.

Each of the other defendants answered the bill, but as their interests are not involved on this appeal, the averments in their answers need not be mentioned. The cause was referred to the master in chancery to take proofs and to report his findings of law and fact. After all the evidence for complainants in chief and a part of the evidence for the defendants had been introduced, by leave of court, Barrett amended his answer as follows:

“Defendant further answering says that the only right, title or interest the complainants or either of them had in or to said premises after the said conveyance made by them as aforesaid to the said Harry C. Thompson was the said right or privilege or option to purchase the said premises from the said Harry C. Thompson as aforesaid but that the said Harry C. Thompson after said conveyance to him was the sole owner of said premises in fee simple and in possession thereof and that the complainants occupied the same only as his tenants under a lease for to-wit, five years. And defendant avers that when the said Harry C. Thompson so sold and conveyed said premises to this defendant he conveyed to and vested in this defendant the entire estate and ownership legal and equitable in said premises, and the said complainants for the express purpose of disclaiming any right, title, interest or estate in said premises, in consideration that this defendant would buy said premises, and would lease them to the complainants so long as the said Elizabeth Hickey should live so that the said Elizabeth Hickey might make her home thereon under such lease, on to-wit, the 11th day of August, A. D. 1900, duly made, executed, acknowledged and delivered to this defendant a warranty deed (executed by the said complainants Mary E. Hickey and Sallie Hickey as well as by the said Elizabeth Hickey) wherein and whereby they conveyed and warranted in fee simple, the said premises to this defendant without reservation or exception, and thereby divested themselves of any alleged or pretended claim which they now pretend to have in said premises, and that thereby the said complainants and all persons claiming through or under them are wholly estopped to claim any right, title, interest or estate of any kind or character in or to said premises. Said warranty deed is in the words and figures following to-wit:”

Complainants filed exceptions to the amendments to the answer on the ground “that said defense is already inconsistent with the original defense set up in the original answer of Mark W. Barrett, and that said amended answer is therefore impertinent.” By order of the court, the exception to the answer was reserved for hearing until the hearing upon the exceptions to the master’s report. The master reported as his conclusions that by virtue of the quitclaim deed from Thompson to Barrett and the warranty deed from complainants and Elizabeth Hickey set out in the amendment to the answer, Barrett became the absolute owner of the premises; that there was no mortgage or mortgage indebtedness between Barrett and the complainants and no resulting trust in their favor and no right of redemption in them as against Barrett, and that the only relation existing between complainants and Barrett was that of landlord and tenant ; that George White purchased said premises from Barrett in good faith for full value and became vested with absolute title to the premises, and that likewise William E. White purchased from George White in good faith for full value the premises in question and became vested with absolute title thereto, and that the New Holland State Bank loaned in good faith to William E. White, with said premises as security by way of mortgage, the sum of $4,000, and that said mortgage is a valid lien on said land for said amount and recommends that said bill be dismissed. Objections were filed by Barrett before the master to the master’s report, which were overruled and stood as exceptions thereto in the Circuit Court. The chancellor sustained the exception to the answer and all the exceptions to the master’s report except as to the finding in regard to the conveyance to George White and to William E. White and the mortgage of the latter to the bank, all of which he held to be executed in good faith and for full value. The decree finds all the other facts as alleged in the bill and that Barrett should account to complainants for the value of the land, being the amount received by Barrett from George White $19,-800 less the alleged indebtedness of complainants of $5,500, with interest on the balance at the rate of 5 per cent per annum from September 1, 1911, making the sum total due from Barrett to complainants of $18,-284.14, which was ordered paid within 30 days, and in default that execution issue therefor.

The decree also provides that the cross-bill filed by Barrett be dismissed for want of equity. The record contains no such cross-bill. No error has beeii assigned by appellant on the action of the court in dismissing the cross-bill. Counsel for appellant state in their brief that no cross-bill was filed. Counsel for appellees state in their brief that a cross-bill was filed but could not be found in the files. This court can only consider what the record contains, and as no cross-bill appears thereby to have been filed and as no error has been assigned or argued by counsel for either side in regard thereto, it need not be further noticed. As the judgment of the chancellor in entering the decree in this case was undoubtedly largely influenced by his determination that the amendment to the answer of Barrett advanced an inconsistent defense to that set out in his original answer, and thus eliminated from his consideration the force and effect of the warranty deed executed by complainants to Barrett on August 11,1900, it is necessary to first consider whether it was error to sustain the exception to this amendment to the answer. The bill avers that on August 20, 1895, the complainants executed a warranty deed of the premises to Thompson to secure the payment of $5,500 then due and owing to him, and that by the terms of the written agreement which accompanied said warranty deed it was agreed that, upon the remittance to Thompson of the said $5,500 and interest thereon, he should reconvey by quitclaim deed the title of said property to complainants. There is no averment in the bill as to when the $5,500 should be paid or whether complainants were bound to ever pay it. The bill then avers that on August 15, 1900, the indebtedness to Thompson became due by the terms of said contract and he was desirous of receiving his money, and that complainants applied to Barrett for a loan to take up said indebtedness then due Thompson; that it was agreed by complainants and Barrett that the latter was to pay Thompson $5,500 in discharge of Thompson’s loan and was to receive from Thompson a quitclaim deed of said property as security for said amount so paid by Barrett to Thompson; and that it was further agreed by complainants and Barrett that in lieu of interest, Barrett was to receive a rental on said lands until such time as complainants desired to and would be able to take up said indebtedness, and Barrett agreed to make a quitclaim deed of said property to complainants upon the payment of said sum. Ño time is fixed when the alleged indebtedness to Barrett should become due. According to the averments of the bill, the agreement with Barrett was that if complainants ever desired to in the future and were able to pay said amount, they had the privilege of doing so and Barrett would reconvey the title to them. Complainants were not indebted to Barrett in any sum, and it was at their request that Thompson conveyed the title to Barrett. Their agreement with Barrett amounted to but an option to buy back the land at some time in the future, if they should so desire and were able to do so. Such an agreement to reeonvey does not render a deed absolute on its face a mortgage. The statute of limitations never could run against such an agreement and no right of foreclosure could ever be had, and there can be no right to redeem where there is no right to foreclose, as these rights are reciprocal. Fitch v. Miller, 200 Ill. 170; Caraway v. Sly, 222 Ill. 203. In the case of Caraway v. Sly, supra, it was said: “An agreement giving the complainant a mere option to pay when he should be able and desire to do so, with an agreement to re-convey upon such a payment, did not constitute a mortgage, and the averments of the bill, if proved, would not entitle the complainant to any relief.” The deed from complainants to Thompson, being absolute upon its face, conveyed the legal title to Thompson, and his conveyance to Barrett at complainants’ request passed the legal title to the latter. Fitch v. Miller, supra; Williams v. Williams, 270 Ill. 552. The original answer avers that Barrett became vested with the title to the premises by virtue of the deed to him by Thompson, and the averment of the bill itself shows this to be true. The amendment to the answer avers that complainants, for the express purpose of disclaiming any right, title or interest in the premises and in consideration that Barrett would buy the premises and lease them to complainants so long as their mother should live, executed a warranty deed on August 11,1900, conveying and warranting said premises to Barrett. This amendment does not, as claimed by appellees, set up a defense additional and inconsistent with the defense averred in the original answer. The allegations in regard to the warranty deed from complainants to Barrett in the amended answer were simply averments of additional evidentiary facts bearing upon the intention of the parties at the time of the transaction and were not inconsistent with the claim of title made by the original answer.

As shown above, the bill itself does not aver such a state of facts as would entitle complainants to relief, and would have been subject to demurrer. The proofs of complainants, however, are at variance with the averments of the bill. It is charged in the bill that Barrett agreed to reconvey said lands when complainants desired and would be able to take up said indebtedness. Both complainants testify that, at the time of the transaction with Barrett, a written contract was executed by Barrett, giving them the right to redeem within 5 years, but the fact that such contract was executed is not established by that quantity of proof that the law demands. “The burden of proof is upon the party alleging that a deed absolute on its face was intended only as a mortgage, to establish such fact by clear and convincing evidence.” Deadman v. Yantis, 230 Ill. 243. Prior to December 30, 1892, Elizabeth Hickey, the mother of complainants, owned the 80-acre tract of land in question. On that day she conveyed the same by warranty deed to complainants and they, together with their mother, owed in mortgages, judgments and other indebtedness about $5,500. Complainants applied to Thompson for a loan for that amount, offering to give a mortgage on the land to secure the debt. Thompson refused to make the loan and take a mortgage for the reason that the amount represented substantially the full value of the land, and the great weight of the evidence is that at that time the market value of the land was between $60 and $70 per acre. Thompson at the time the land was deeded to him paid up the various debts of complainants and their mother, amounting to the said sum of $5,500, and gave a contract back to complainants by which they had the option to redeem the land within 5 years by paying back the $5,500, and interest on this sum was provided for by way of rentals under a lease. The lease in question was executed by Thompson and provided that complainants should pay as rent for the land $385 per year, this amount being 7 per cent upon $5,500. The lease also provided that complainants should pay the taxes on the land. The lease itself was not produced in evidence but its contents were testified to by Thompson and complainants. While Thompson in his testimony frequently refers to this transaction as a loan, yet it is apparent from his testimony that he considered that he had legal title to these premises subject to the option of complainants to repurchase the same within 5 years. He testified as follows: “It was not an absolute transfer of title. It was to secure the money I advanced. At the then price of land, it so nearly represented the market value of it that my attorney suggested I take a deed for it rather than have to foreclose a mortgage and give them a year or fifteen months further use of it.” It is therefore apparent that he did not consider this deed to be a mortgage or that he had a right to foreclose the same. He further testified: “I was afraid I was going to have it landed on me in real estate. * * * I knew I was perfectly safe in the security of my money. I was quite indifferent as to whether they took it up or not. * * * Under the advice of my attorney I required them to convey that land to me by deed and I gave them back a contract by which they had the option to buy back at any time within five years. Then I leased the land for five years; making the consideration of the lease the interest on the purchase money, and they were to pay the taxes during that time. The reason I took a deed instead of a mortgage was on account of the amount involved. It was so nearly the value of the land that I didn’t want them to have the fifteen months’ additional time to redeem.” Thompson left New Holland in January, 1900, and from that time on has resided in New York City. Just before he left, he told the witness LaForge that he didn’t want this real estate and asked the witness that, in case he had to take the Hickey land, if the latter would take it off' his hands, and said that he would rather have the money than the land and that it was worth about $70 per acre. "When the option contract was about to expire in August, 1900, complainants went to Barrett and tried to procure a loan with which to redeem the land from Thompson. Barrett refused to make the loan but at their request wrote to Thompson, who was then in New York City, and asked him if he would extend the time of payment for another year. Thompson replied that he would not. Barrett testifies that thereupon complainants represented to bim that they and their mother had lived upon the farm for over 50 years, and it was their mother’s desire that she be permitted to reside on the farm while she lived, and requested him to pay Thompson the $5,500 and take a deed from Thompson to himself and then lease the land to them so they would not have to move off the farm. Barrett testifies that he told them positively that he would have nothing to do with the matter unless they themselves made a deed to bim so there would be no question about the title to the land. Complainants each testify that the only documents they signed at that time were the lease and a contract with Barrett by which they were to have 5 years in which to redeem the land, and were to pay interest by way of rentals in the amount of $385, the same being 7 per cent on the $5,500, and that the only document that they acknowledged before a notary public was the contract, and positively deny that they executed or acknowledged the deed to Barrett. The deed, however, was introduced in evidence and shown to be duly signed and acknowledged by them. Barrett positively denies that any such contract or agreements were made or executed, and the fact that complainants testify positively that they acknowledged but one document and it being shown that the deed was acknowledged by them at that time, the prima facie presumption, at least, is that the deed was the document and the only document acknowledged by them. The contract was not produced in evidence, and its existence rests wholly upon the testimony of complainants, who stated that they had never had possession of it but that it was left in the possession of Barrett. Another fact which tends to corroborate Barrett in his version of the transaction is that the lease which he executed leases the premises to the mother, Elizabeth Hickey, for a period of 5 years at a rental of $400 per year. Elizabeth Hickey had no title to the premises at this time, and it is unreasonable to believe that if complainants had claimed to own the premises at that .time, they would consent to have the lease made to their mother and not to them. The consideration of the lease also is at variance with that testified to by complainants as contained in the alleged contract of repurchase. They testified that the latter contained the provision that interest should be paid by way of rentals in the sum of $385 a year. In their testimony they attempted to explain this discrepancy by stating that Barrett insisted on paying the taxes himself and that the extra $15 was for the amount of the taxes, but the evidence shows that the taxes had for many years been not less than $30. Elizabeth Hickey died April 28, 1903. The last-mentioned lease expired March 1, 1906, and on October 19, 1905, Barrett executed another lease of the premises to complainants for a period of 5 years. In this lease the rental was $400. ■ This lease expired March 1, 1911, and on August 18, 1910, Barrett executed another lease to complainants for the period of one year and the rental was raised to $600. This lease expired March 1, 1912, and on August 10, 1911, Barrett executed another lease to complainants for the period of one year with the rental at $600. This lease by its terms would expire March 1, 1913. On August 28, 1911, Barrett entered into a contract with George White to sell him the land by the terms of which White paid $4,800 cash in hand and was to pay the balance, $15,000, on March 1, 1912. On September 1, 1911, Barrett executed a quitclaim deed conveying the land to George White, and assigned the lease to complainants which had been executed by him on August 10th. On December 6, 1911, George White conveyed the land to William E. White in consideration of $22,000, and also assigned the lease to him. Complainants paid the first instalment of the rent, which was due September 1,1912, to William E. White without any complaint or protest, by leaving the money with the Lincoln National Bank for the benefit of William E. White. The second instalment became due January 1, 1913, and complainants failing to pay the same, William E. White brought suit in an action of forcible entry and detainer and procured possession of the premises and a judgment for the amount of rent due. About a year later this bill was filed, nearly 19 years after the original transaction of complainants with Thompson. The conduct of the parties throughout this period of time, instead of being clear and convincing evidence that these various deeds were in fact mortgages, is inconsistent with that theory. Complainants were not indebted to Barrett when the latter received the deed. There was no debt to secure. The fact that both Thompson and Barrett refused to loan the money, but only offered to advance it upon condition that complainants execute an absolute deed to the land; is strong evidence that these deeds were never intended to be mortgages. Casper Nat. Bank v. Jenner, 268 Ill. 142; Bacon v. National German-American Bank of St. Paul, 191 Ill. 205. Complainants directed Thompson to convey the property to Barrett, and it has been held that where a party, having a right to redeem, directs the holder of the legal title to convey the premises to the purchaser, such purchaser takes the title divested of the condition of defeasance. Deadman v. Yantis, supra. After Barrett received the deed from Thompson, he tiled tiie land and made some other improvements thereon. He paid all the taxes on the land while he held title thereto. Complainants at one time made some repairs on the premises and presented the bill to Barrett, which he paid. They at one time asked Barrett to build a new house upon the land, which he refused to do. They paid rent to William E. White without protest. The different leases made by Barrett to complainants increased the rent several times without objection from complainants and which would have been in direct violation of the terms of the contract testified to by complainants, if any such contract had been made. All these acts were inconsistent with the theory that Barrett simply held a mortgage on the land. During all these years the evidence shows complainants had a regular attorney who attended to their legal business and was frequently in consultation with them. The evidence introduced by complainants is at variance with the allegations in the bill, which in and of themselves do not present a case for equitable relief. The master in chancery saw the witnesses and heard them testify and the finding of facts made by him is entitled to consideration. Keuper v. Mette’s Unknown Heirs, 239 Ill. 586; Glos v. Larson, 138 Ill. App. 412.

After 19 years’ delay in asserting the right to redeem from a deed absolute on its face and after farm values have greatly increased, evidence attempting to establish such a deed to be a mortgage must be scrutinized with care. Complainants have not met the burden of proof necessary in this class of cases, and the evidence does not show in a clear and satisfactory manner that there was any agreement between them and Barrett that his deed from Thompson should be in fact a mortgage.

The decree of the Circuit Court is reversed and the cause remanded with directions to overrule the exceptions to the amendment to the answer and the exceptions to the master’s report and to dismiss the bill for want of equity.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Presiding Justice Eldredge

license: Public Domain

text:
    Lyman B. Vose et al., Appellees, v. Central Illinois Public Service Company, Appellant.
    1. Pleading, § 273

      —vdien plea of general issue will stand as plea to amended declaration as amended. A plea of the general issue, which is filed to an original amended declaration and which would have been a good plea to any declaration in the form of action used, will be considered as standing as a plea to the amended declaration as amended, even though no pleas were filed to the declaration after the final amendment and no order was entered to have the existing plea of general issue stand as a plea to the amended declaration as amended.
    2. Pleading, § 273

      —when special pleas will not stand as pleas to amended declaration as amended. Where, after an amendment to a declaration and the sustaining of demurrers to special pleas to the amended declaration, the declaration is again amended, the special pleas will not be considered as standing as pleas to the amended declaration as amended.
    3. Appeal and error, § 425

      —when error in sustaining demurrer to special pleas to amended declaration not preserved for review. The question of error in sustaining a demurrer to special pleas to an amended declaration is not reviewable where the special pleas are not renewed to the declaration as finally amended a second time, and under which the trial is had.
    4. Pleading, § 466

      —when verdict does not cure defect in declaration. If a declaration omits to allege any substantial fact which is essential to a right of action, and which is not implied in or inferable from the findings of those which are alleged, a verdict for plaintiff does not cure the defect.
    5. Workmen’s Compensation Act, § 12

      —non-necessity that employer, in action against third person, aver acts showing election by latter not to be bound by act. In an action under section 29 of the Workmen's Compensation Act [Callaghan’s 1916 St. Supp. ¶ 5475(29)] by an employer, a telephone company, against an electrical company to recover for the death of an employee of plaintiff, alleged to be due to the negligence of defendant, it is not necessary that plaintiff aver any acts on the part of defendant tending to show that it had not elected not to be bound by the act, where it is averred that defendant is an employer engaged in the business of electrical work, since by section 2 of the Act [Callaghan’s 1916 St. Supp. ¶ 5475(2)], every such employer is conclusively presumed to have filed notice of his election to be bound by the act, unless and until a notice in writing to the contrary is filed with the Industrial Board and furnished personally to his employees or posted as provided therein.
    6. Workmen’s Compensation Act, § 12

      —when omission in declaration, in action by employer against third person, is cured by verdict. In an action under section 29 of the Workmen’s Compensation Act [Callaghan’s 1916 St. Supp. ¶ 5475(29)] by an employer, a telephone company, against an electrical company, to whose negligence it is claimed the death of a telephone lineman, climbing a telephone pole carrying also defendant’s wires, was due, to recover the amount of the award paid the estate of the employee, even if it be necessary to allege the fact that defendant had elected to be bound by the act, such fact would be clearly implied or inferred, by force of the statute, from the averment that defendant at the time of the accident was an employer engaged in electrical work, and an omission so to do would be cured by the verdict.
    7. Workmen’s Compensation Act, § 18

      —when shown that death of employee was not proximately caused by negligence of employer. The evidence was sufficient to sustain the finding, in an action by an employer, a telephone company, under section 29 of the Workmen’s Compensation Act [Callaghan’s 1916 St. Supp. ¶ 5475(29)], against an electrical company, to whose negligence it was claimed the death of a telephone lineman was due, to recover the amount of an award paid to the estate of the employee, that the death of deceased was not proximately caused by the negligence of the employer where, although no one saw the accident, the evidence tended to show that deceased was a careful man; that he was in the tree, through which the telephone and electric wires ran, repairing a telephone wire,1 that the insulation on one of the high-voltage wires of the electrical company had become defective and worn and that it was in such a condition as to be dangerous to the life of any one coming in contact with it, and both plaintiff and defendant used the same poles for their wires.
    8. Electricity—when duty lies upon telephone and electrical company to Iceep wires in condition to avoid injury to employees of other. Where a telephone company and an electrical company use the same poles for their wires and each knows that employees of the other will have occasion to repair the respective wires from time to time, a duty devolves upon each company to use reasonable care to keep its respective wires in such a reasonably safe condition as not to cause injury to the employees of the other.

      9. Workmen’s Compensation Act, § 12

      —when evidence that insurance company paid Mils of doctor and hospital, and amount of award is properly excluded. In an action by an employer, under section 29 of the Workmen’s Compensation Act [Callaghan’s 1916 St. Supp. ¶ 5475(29)], against a third person, to whose negligence the death of an employee is claimed to have been due, to recover the amount of the award and medical and hospital expenses paid to the estate of the employee, it is proper to exclude evidence that an insurance company paid the bills of the doctor and hospital and the award by the Industrial Board, and that plaintiff was not damaged.
    10. Workmen’s Compensation Act, § 12

      —when coroner's verdict is admissiMe. In an action by an employer, a telephone company, under section 29 of the Workmen’s Compensation Act [Callaghan’s 1916 St. Supp. ¶ 5475(29)], against an electrical company, to whose negligence in maintaining its wires carried on the same poles as plaintiff’s, the death of a telephone lineman by electrical shock was due, to recover the amount of the award paid to the estate of the employee, held that the coroner’s verdict was competent evidence.
    11. Workmen’s Compensation Act, § 12

      —when order of Industrial Board allowing award is admissiMe in evidence. In an action by an employer under section 29 of the Workmen’s Compensation Act [Callaghan’s 1916 St. Supp. ¶ 5475(29)], against a third person, to whose negligence the death of plaintiff’s employee was claimed to be due, to recover the amount of an award paid to the estate of the employee, it was proper to admit in evidence the order of the Industrial Board allowing the award, since this was the best evidence of the amount so awarded.
    Appeal from the Circuit Court of McDonough county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed July 15, 1918.
    Vause, Hughes & Kiger, for appellant.
    H. L. Howard and Lawyer & Hainline, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

The appellees, Lyman B. Vose, J. L. Scott, Harry Blout and T. Z. Creel, in 1915, were engaged in operating a telephone system. They had possession of the assets of the Western Illinois Telephone Company and were doing business under the name and style of Reorganization Committee of said company. This committee operated sixteen telephone exchanges in McDonough and other counties and had a telephone system in the City of Bushnell. A line of poles had been erected on Hail street and a number of wires were strung on the cross arms attached to said poles, and three of the wires were attached to the poles themselves. A single cross arm supporting the telephone wires was located near the top of each pole. Below the telephone wires there was another cross arm which supported three high-tension electric wires, carrying 2,200 volts each, and owned or controlled by appellant. All the wires ran through the branches of a certain tree located between two of the poles. Forest Shanks was an employee of appellees as a lineman and on June 7,1915, proceeded to repair a broken telephone wire located in the tree in question. He was found about noon on that day lying beneath the tree and very badly burned under the arm and about the feet where the hook of the steel climbers which he had on were attached. He died of his injuries June 11th. His widow, as administratrix of his estate, filed a petition for compensation with the Industrial Board for a lump-sum settlement. An award of $2,129.61 was adjudged against appellees, which they paid, together with a hospital bill of $41.50 and the surgeon’s bill of $151.50, making the total amount paid by appellees the sum of $2,370.61.

Appellees then brought this action against appellant under section 29 of the Workmen’s Compensation Act of 1913 [Callaghan’s 1916 St. Supp. ¶ 5475(29)] to recover the amount they were compelled to pay to the administratrix of the estate of the deceased. An amended declaration consisting of four counts was filed, to which appellant demurred. The demurrer was overruled and thereupon appellant filed the pleas of general issue and two special pleas. A demurrer was sustained to the two special pleas and subsequently the amended declaration was amended. No pleas were filed to the declaration as finally amended, nor was any order entered to have the existing plea of the general issue stand as a plea to the amended declaration as amended. The plea of general issue, however, having been filed to the original amended declaration, and which would have been a good plea to any declaration in the form of action used, will be considered as standing as a plea to the amended declaration as amended. Eames v. Morgan, 37 Ill. 260; McAllister v. Ball, 28 Ill. 210. This rule, however, has never been extended to special pleas. Appellant abides by its special pleas to the original amended declaration, and one of the errors assigned in this court is the sustaining of the demurrer to said pleas. This question is not before us because the special pleas were not renewed to the declaration as -finally amended and under which the trial was had.

The declaration as finally amended failed to aver that appellant had elected to provide and pay compensation according to the provisions of the Workmen’s Compensation Act, and the point most strenuously urged on this appeal is that the lack of such an averment makes the declaration so defective that it will not sustain the judgment. No motion in arrest of judgment was made, and the sufficiency of the declaration as finally amended is sought to be presented by the refusal of the trial court to grant a motion made by appellant at the close of all the evidence, to give to the jury a written instruction directing it to find appellant not guilty.

So much of section 29 of the Act [Callaghan’s 1916 St. Supp. 5475(29)] as is necessary to be considered is as follows: “Where an injury or death for which compensation is payable by the employer under this Act was not proximately caused by the negligence of the employer or his employees, and was caused under circumstances creating a legal liability for damages in some person other than the employer to pay damages, such other person having also elected to be bound by this Act, then the right of the employee or personal representative to recover against such other person shall be subrogated to his employer and such employer may bring legal proceedings against such other person to recover the damages sustained, in an amount not exceeding the aggregate amount of compensation payable under this Act, by reason of the injury or death of such employee. Where the injury or death 'for which compensation is payable under this Act was not proximately caused by the negligence of the employer or his employees and was caused under circumstances creating a legal liability for damages on the part of some person other than the employer to pay damages, such other person having elected not to be bound by this Act, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer’s payment of or liability to pay compensation under this-Act, but in such case if the action against such other person is brought by the injured employee or his personal representative and judgment is obtained and paid, or settlement is made with such other person, either with or without suit, then from the amount received by such employee or personal representative there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee or personal representative.”

Section 2 of the Act [Callaghan’s 1916 St. Supp. ¶ 5475(2)] is as follows: “Every employer enumerated in section 3, paragraph (b), shall be conclusively presumed to have filed notice of his election as provided in section 1, paragraph (a), and to have elected to provide and pay compensation according to the provisions of this Act, unless and until notice in writing of his election to the contrary is filed with the Industrial Board and unless and until the employer shall either furnish to his employee personally or post at a conspicuous place in the plant, shop, office, room or place where such employee is to be employed, a copy of said notice of election not to provide and pay compensation according to the provisions of this Act; which notice of non-election if filed and posted as herein provided, shall be effective until withdrawn; and such notice of non-election may be withdrawn as provided in this Act.”

One of the occupations, enterprises or businesses named in section 3 [Callaghan’s 1916 St. Supp. 5475(3)] is “electrical work.” Each count of the amended declaration as amended charges that appellant kept and maintained certain and numerous wires which at said time and place were charged with electricity of a high power and voltage, at the direction of appellant and by reason of the operation and control thereof by appellant. In the case of McAndrews v. Chicago, L. S. & E. Ry. Co., 222 Ill. 232, it is stated, “The rule is, if the declaration omits to allege any substantial fact which is essential to a right of action and which is not implied in or inferable from the findings of those which are alleged, a verdict for the plaintiff does not cure the defect. (Foster v. St. Luke’s Hospital, 191 Ill. 94.)” The converse of this proposition must also be true, viz., that if such material facts can be implied or inferred from the findings of those which are alleged,. then the verdict for the plaintiff will cure the defect. The facts charging appellant with being an employer engaged in the business of electrical work are averred in each count, and section 2 of the Act [Callaghan’s 1916 St. Supp. 5475(2)] provides that every such employer shall be conclusively presumed to have filed notice of his election to be bound by the act unless and until a notice in writing of his election to the contrary is filed with the Industrial Board and furnished personally to his employees or posted as provided therein. It is true that there are no averments of any acts on the part of appellant tending to show that it had not elected not to be bound by the act, but such averments are unnecessary, because to hold otherwise would be to destroy the presumption created by this section. In actions brought against an employer to recover damages for the death of or personal injury to his employee, it is necessary to aver and prove that the employer had elected not to be bound by the act, for the reason that unless he had'so elected, by virtue of section 6 [Callaghan’s 1916 St. Supp. ¶ 5475(6)] no action at law could be maintained. This rule, however, has no application to cases of the character of the one at bar. The right of action in this case is specifically given by section 29 [Callaghan’s 1916 St. Supp. ¶ 5475(29)]. There can be no presumption of a fact when the fact itself is established by proof. To compel a plaintiff in an action of this kind to allege and prove that the third person who caused the injury to its employee, and who it is alleged was an employer engaged in electrical work, also elected to be bound by the act would cause the plaintiff to allege and prove the very fact which the act itself says shall be conclusively presumed from the other facts which were alleged. All that is necessary to allege in actions like this are the facts which create the presumption, which was done in the declaration in this case. Even if it should be deemed necessary to allege the fact that appellant had elected to be bound by the act, such fact would clearly be implied or inferred, by force of the statute, from the averment that appellant at the time of the accident was an employer engaged in electrical work, and an omission so to do would be cured by the verdict.

The contention that the facts do not show that the death of the deceased was not proximately caused by the negligence of appellees cannot be sustained. No one saw the accident, but the proofs tend to show that the deceased was a careful and prudent man; that he was in the tree in question in the performance of his duty of repairing a wire belonging to appellees; that the insulation on one of the high-voltage wires of appellant had become defective and worn; that it was in such a condition as to-be dangerous to the life of any one who might come in contact therewith and that appellant had long known its unsafe condition. Both appellant and appellees used the same pole to support its respective wires. Each knew that the employees of the other would have occasion to repair these wires from time to time, and a duty devolved upon each to use reasonable care to keep its respective wires in such a reasonably safe condition as not to cause injury to the employees of the other. Wires carrying a high voltage of electricity are always dangerous unless insulated, and it is the duty of the one owning or controlling such wires to at least use reasonable care to keep them in such reasonably safe condition that they will not injure those who might lawfully and rightfully come in proximity to them.

It is urged that the trial court erred in refusing to permit appellant to prove that an insurance company paid the bills of the doctor and hospital and the award allowed by the Industrial Board, and the appellees had therefore not been damaged. There was no error in this. Section 26 of the Act [Callaghan’s 1916 St. Supp. ¶ 5475(26)] makes it compulsory upon an employer who elects to be bound by the act, to do one of four things, and one of these things which he may do is to (3) “insure to a reasonable amount his normal liability to pay such compensation in some corporation, association or organization authorized, licensed or permitted to do such insurance business in this State.” It would have been no defense, that the damages had been paid by an insurance company with which appellees might have had a contract, if such had been the fact.

The verdict of the coroner’s jury was competent evidence. Devine v. Brunswick-Balke-Collender Co., 270 Ill. 504. It was proper also to admit the order of the Industrial Board allowing the award. This was the best evidence of the amount so awarded, and the objection to its admission is without merit. What has been said disposes also of most of the criticisms to the instructions. Other errors have been argued and have been fully considered, but we find none which would justify a reversal of the judgment. The judgment is affirmed.

Affirmed.

Mr. Justice Waggoner took no part in the decision of this case.


text:
    Lawrence T. Allen, Appellee, v. D. G. Williams et al., Appellants.
    1. Corporations, § 139

      —what is not essential to transfer of title to stock. The delivery of a certificate of stock is not necessary to transfer the title thereto.
    2. Execution, § 31

      —liability of shares of stock to. Shares of stock stand in the same position as any other personal property liable to be seized and sold in satisfaction of a judgment.
    3. Execution, § 31

      —when shares of stock not transferred on books of corporation are not liable to. Shares of corporate stock standing on the books of the corporation in the name of a debtor are not subject to execution on a judgment against the debtor, where they were previously assigned to another in payment of a debt and it is not shown that the assignee permitted the debtor to control the stock or use it in a way that might mislead creditors of the latter.
    Appeal from the Circuit Court of Vermilion county; the Hon. Augustus A. Pabtlow, Judge, presiding. Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed July 15, 1918.
    Rearick & Meeks, for appellants.
    J. B. Mann, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

On February 16, 1915, Nathan Bond, as receiver of the firm of Hamilton & Cunningham, procured a judgment on a promissory note against Charles A. Allen for the sum of $5,493.29. On the following day execution was issued and levied upon fifty shares of stock of the Illinois Cuban Land Company, a corporation organized under the laws of the State of Maine, as the property of Charles A. Allen and the same was advertised for sale. On March 9, 1915, Lawrence T. Allen, appellee, filed a bill to enjoin the sale of said stock. D. Gn. Williams, the sheriff, and Nathan Bond, the receiver, were made parties defendant. A temporary injunction was issued and, upon a hearing of the cause, the injunction was made permanent. Appellants seek by this appeal to have the decree reversed. The proofs show that the stock levied upon was in the name of Charles A. Allen upon the books of the company, but that no certificate therefor had ever been issued. The proofs also conclusively show that the stock was transferred to appellee by a written assignment from Charles A. Allen, dated January 20, 1915. Appellee was the son of Charles A. Allen, and it is also shown that he had made many advances of money aggregating a large amount to the latter and that it was in payment for these advances the stock in question was assigned to him.

It is contended that because no certificate of this stock • had been issued to appellee the creditors of Charles A. Allen had a right to levy thereon. The delivery of a certificate of stock is not necessary to transfer the title thereto. Colton v. Williams, 65 Ill. App. 466. The statute, while it makes shares of stock subject to levy under an execution against the stockholder, does not authorize the levy of the execution on stock not owned by the judgment debtor although it may stand in his name on the books of the corporation. Shares of stock stand in the same position as any other personal property liable to be seized and sold in satisfaction of a judgment. There is no evidence to show that appellee permitted his father to control the stock or to use it in a way that might mislead the creditors of the latter. Under these circumstances the stock of appellee is not subject to the levy of the execution issued on the judgment against his father. Magerstadt v. Schaefer, 213 Ill. 351. The decree of the Circuit Court is affirmed.

Affirmed.


text:
    Danville Auburn Auto Company, Appellee, v. National Trust & Credit Company, Appellant.
    '1. Assignments for benefit of creditors, § 29

      —what is effect of National Bankruptcy Act. The statute in reference to voluntary assignments for the benefit of creditors was suspended by the National Bankruptcy Act of 1898, but a debtor may still make a common-law assignment.
    2. Assignments for benefit of creditors, § 36

      —what is necessary element of. One of the necessary elements of a voluntary assignment for the benefit of creditors is the implication of a trust and the intervention of a trustee.

      3. Assignments fob benefit of cbeditobs, § 5

      —when not voluntary. Conveyances directly to creditors and not upon trusts are not voluntary assignments for the benefit of creditors.
    4. Assignments fob benefit of cbeditobs, § 32

      —when not Uniting as to person not party to agreement. An agreement for the assignment by a debtor of all his personal and real property, entered into between the debtor, certain creditors and a third party as trustee, whereby the debtor agrees to convey and assign unto the trustee all his property for the benefit of such creditors and all other creditors acceding thereto, is void as against an existing creditor who is not a party thereto.
    Appeal from the Circuit Court of Vermilion county; the Hon. Augustus A. Pabtlow, Judge, presiding. Heard in this court at the October term, 1917.
    Reversed and remanded with directions.
    Opinion filed July 15, 1918.
    John W. Creekmur, Donald J. DeWolfe and Oliver D. Mann, for appellant.
    Acton & Acton, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

On August 26, 1913, Boss C. Kiningham as party of the first part and a large number of creditors, “being creditors of said debtor, and all other creditors of said debtor acceding thereto, hereinafter called the ‘creditors, ’ party of the second part, and C. M. Kiningham, ’ ’ called the “trustee,” party of the third part, entered into a written agreement whereby Boss C. Kiningham agreed to convey and assign unto said trustee all the real and personal property, credits and effects of said debtor for the benefit of said creditors and all other creditors acceding thereto. Subsequently, a bill of sale of all the personal property and a warranty deed of all the real estate were executed by Boss O. Kiningham to the trustee in accordance with the trust agreement. The trust agreement provides for an executive committee of the creditors, who shall advise and direct the trustee in his duties. It also provides that the trustee shall collect all accounts, bills receivable, and other evidences of indebtedness belonging to said debtor, and shall sell and convert all the real and personal property into cash and distribute the proceeds thereof pro rata among the creditors. In the preamble in the trust agreement it is stated that said creditors have agreed with the said debtor and mutually with the others to accept these presents in satisfaction of their debts, and to execute releases therefor. In paragraph 9 of the trust agreement it is set out that in consideration of the premises, “The said creditors respectively hereby release the said debtor from the said debts,” etc.

At and prior to the time of the execution of the trust agreement, Boss C. Kiningham was indebted to appellant upon a promissory note for the principal sum of $1,000. Suit was brought upon this note and on the first trial a judgment was rendered against appellant and in favor of Kiningham. This judgment was reversed by this court and the cause remanded for another trial. (National Trust & Credit Co. v. Kiningham, 201 Ill. App. 78.) On the second trial of the cause, judgment was rendered in favor of appellant and against Kiningham for the sum of $1,094.54 and costs.

Appellant never became a party to said trust agreement nor acceded thereto. On September 1, 1916, the Danville Auburn Auto Company, appellee, and one of the creditors who became a party to said trust agreement, filed its bill in the Circuit Court of Vermilion county, setting out the trust agreement and the other facts surrounding the assignment, and averring that all the personal property has been disposed of by the trustee and nothing remains to be done under said trust agreement or assignment but to dispose of the real estate and to distribute the proceeds thereof; that the trustee has since died testate, leaving a widow and several children as his heirs at law, and that two executors have been appointed and have qualified as such under the will of the deceased; that the court should declare that said trustee at the time of his death held said real estate in trust as aforesaid and impress said trust thereon and direct the master in chancery to sell said real estate and distribute the proceeds in accordance with the trust agreement. Subsequently, the bill was amended by making appellant a party thereto. Appellant filed its answer, setting up its judgment and the levy of the execution issued by virtue thereof upon the real estate in question, "and avers that said trust agreement and assignment were void as against it and that said trustee had wrongfully disposed of the personal property. Appellant also filed a cross-bill which, as amended, averred that the trust agreement as against the appellant had been adjudicated to be void by the judgment of the Appellate Court in the case of National Trust & Credit Co. v. Kiningham, supra; that the deed of said real estate to said trustee was without consideration and void as to appellant and that the heirs of the trustee hold tibié thereto for the benefit of appellant, and substantially the same allegations are made in regard to the bill of sale of the personal property to the trustee; that the said executors should account for the value of the goods and chattels disposed of by C. M. Kiningham in his lifetime, as such trustee; that said trustee in his lifetime wrongfully turned over certain goods and chattels and accounts and the proceeds thereof to certain of the creditors and that the latter should be required to answer fully the amounts of money and the property which they received from said trustee, and that an accounting should be had in regard thereto.

A demurrer was interposed to the cross-bill and sustained. A decree was entered impressing the trust upon the real estate, ordering the master to sell the same and distribute the proceeds.

The statute of this State in reference to voluntary-assignments for the benefit of creditors was suspended by the National Bankruptcy Act passed in 1898, but a debtor may still make a common-law assignment for the benefit of his creditors. Pogue v. Rowe, 236 Ill. 157. It is claimed by appellee that the trust agreement, and the conveyances of the real and personal property by virtue thereof, did not constitute a common-law assignment for the benefit of the creditors óf Kiningham but were intended only to give a preference to certain creditors which a debtor in failing circumstances had a right to do. Rice-Stix Dry Goods Co. v. W. S. Albrecht & Co., 273 Ill. 447; Murray Nelson & Co. v. Leiter, 190 Ill. 414. One of the necessary elements of a voluntary assignment for the benefit of creditors is the implication of a trust and the intervention of a trustee. Conveyances directly to creditors and not upon trusts are not such voluntary assignments. Weber v. Mick, 131 Ill. 520; Walker v. Ross, 150 Ill. 50. The trust agreement in this case provides, in substance, that it is for the benefit of all the creditors who might accede to its terms. In the case of Ramsdell v. Sigerson, 7 Ill. (2 Gilm.) 78, a very similar agreement was under consideration and had a provision therein that the creditors named should release their demands against the debtor without full payment of the same. The same argument was advanced in that case as in this, that the debtor had a right to prefer one or more of his creditors, but the court held: “* * * And although the right of a failing debtor to prefer one or more of his creditors by deed of assignment, if properly executed and without fraud, is fully recognized as law by this court, still, if it contains a condition of release without provision for full payment of the demands of his creditors, it will be considered fraudulent and void in regard to all such creditors as are not parties to it, and will not prevent them from proceeding to judgment and execution, as though no such assignment had been made, as long as the property remains in the possession of the assignors or assignees of such an assignment.” In the case of Conkling v. Carson, 11 Ill. 503, the trust agreement contained a provision that the creditors accepted the property assigned in full payment of their debts and was for the benefit of all creditors who should thereafter execute or accede to the same, and it was held to be void as against existing creditors who were not parties thereto and it was said: “The law does not allow a debtor to impose such harsh and onerous conditions upon his creditors. A debtor in failing circumstances has an undoubted right under the laws of this State to prefer one creditor to another, and to provide for the preference, by assigning his effects; but he is not permitted to say to any of his creditors that they shall not participate. in his present estate, unless they will release all right to satisfy the residue of their debts out of his future acquisitions.” To the same effect also is Howell v. Edgar, 4 Ill. (3 Scam.) 417.

It is apparent that this trust agreement, whether intended as an assignment for the benefit of all the creditors or as a preference to those who executed it or acceded thereto, is void as to those creditors who are not parties thereto. And in so far as the attempted conveyance of the personal property was concerned without any attempt to comply with the provisions of the Bulk Sales Act, it was void for that reason also, and was so held in National Trust & Credit Co. v. Kiningham, supra.

The decree of the Circuit Court is reversed and the cause remanded with directions to overrule the demurrer to the cross-bill and for such other proceedings consistent with the opinion herein expressed.

Reversed and remanded with directions.


author: Mu. Presiding Justice Eldredge

text:
    Ellen S. Smith, by Arthur W. Smith, Conservator, Appellee, v. Board of Trustees of the Firemen’s Pension Fund of the City of Bloomington, Appellant.
    1. Municipal cobpobations, § 143

      —when widow of fireman not deprived of benefits of Pension Fund Act. The mere fact that a fireman’s pension fund created hy a city had not at the time of the death of a fireman reached the minimum amount of $25,000, required in a city of its size under section 4 of the Firemen's Pension Fund Act of 1887 (J. & A. ¶ 1891), before pensions could be paid, did not deprive his widow of the benefits of the act when the fund reached the prescribed amount
    2. Municipal corporations, § 143

      —what was effect of Revision Act of 1915 upon rights of widow of fireman to pension under Act of 1887. The rights of a widow to the benefits of the Firemen’s Pension Fund Act of 1887 (J. & A. ¶ 1888 et seq.), and to a pension, upon the pension fund of the city reaching the minimum amount requisite before pensions could he paid, after death of her husband and after the Revision Act of 1915 [Callaghan’s 1916 St. Supp. ¶ 1904(1) et seq.), were not defeated by the Revision Act, since the sections in the latter act applicable to the rights of the widow are substantially the same as those contained in the Act of 1887.
    3. Statutes, § 142

      —what is effect of revision. Where the law on a particular subject is revised and rewritten, only the provisions of the old law which are omitted from the revised act are repealed, and all provisions of the old law retained in the new act are regarded as having been continuously in force.
    Appeal from the Circuit Court of McLean county; the Hon. Sain Weltt, Judge, presiding. Heard in this court at the April term, 1918.
    Affirmed.
    Opinion filed July 15, 1918.
    Stone & Dick, for. appellant.
    Barry & Morrissey, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mu. Presiding Justice Eldredge

delivered the opinion of the court.

Ellen S: Smith is the widow of Wilson F. Smith, who died February 25,1914. At the time of his death, he had been for more than 23 years a member of the Fire Department of the City of Bloomington, and was receiving for his services $70 per month. Bloomington at that time was a city of more than 25,000 and less than 75,000 inhabitants and had for many years maintained a paid fire department, and had accumulated a pension fund under the Firemen’s Pension Fund Act of 1887 (J. & A. ¶ 1888 et seq.), although the minimum of said fund" had not at that time reached the sum of $25,000. After her husband’s death and on April 13, 1914, Mrs. Smith made her application to the Board of Trustees of the Firemen’s Pension Fund for a pension, which was refused for the reason that the fund at that time had not reached the minimum of $25,000. The fund did not reach the sum of $25,000 until March 2, 1916. On June 3, 1916, she renewed her application and it was again refused. Thereupon she, having been adjudged insane, by her conservator filed her petition in the Circuit Court of McLean county for a writ of certiorari to review the record of the proceedings of the Board of Trustees of the Firemen’s Pension Fund. This is an appeal from the order of the court, sustaining a motion made by her to quash the record of said board of trustees.

Section 4 of the Act, as amended in 1909 (J. & A. ¶ 1891), provided, in substance, that when $25,000 shall be received and accumulated in such fund in cities having a population of less than 75,000 and more than 25,000, such sum shall be retained as a permanent fund, and, thereupon and thereafter, the annual income of such fund and any excess thereof shall be available for the uses and purposes of such pension fund. Section 8 of the Act, as amended in 1913 [Callaghan’s 1916 St. Supp. ¶ 1895], provided that if any member of such fire department shall die while in said service after 20 years’ service and shall leave a widow, minor child or minor children under 16 years of age, or dependent father or mother surviving, said board of trustees shall direct the payment from said pension fund to such widow, while unmarried, $35 per month, provided that there shall not be paid a total pension exceeding one-half of the amount of the annual salary of such fireman at the time of his decease. This section further provided as follows: “If at any time there shall not be sufficient money in such pension fund to pay each person entitled to the benefits thereof, the full amount per month, as hereinbefore provided, then, and in that event, an equal percentage of such monthly payments shall be made to each beneficiary thereof, until the said fund shall be replenished to warrant the payment in full to each of said beneficiaries.” In 1915 an act was passed by the legislature, which was approved June 29, and became in force July 1 [Callaghan’s 1916 St. Supp. ¶ 1904 et seq.], entitled: “An Act to revise the law creating a firemen’s pension fund in cities, villages and incorporated towns, whose population exceeds five thousand (5,000) inhabitants.” Section 6 of this Act [Callaghan’s 1916 St. Supp. ¶ 1904(6)] is substantially the same as section 8 of the Act of 1887 as amended in 1913, in so far as the payment of pensions to the widows of deceased firemen who have served 20 years is concerned, except that it raises the amount from $35 to $45 per month and omits the provision that the amount paid shall not exceed one-half the amount of the annual salary of such deceased fireman. Section 1 of the Revised Act of 1915 [Callaghan’s 1916 St. Supp. ¶ 1904(1)] provides that the words “fireman” or “firemen” as used in the act shall include all persons who, at the time that the act shall become effective, are entitled to the benefits of the Act of 1887 as amended. Section 8 [Callaghan’s 1916 St. Supp. ¶ 1904(8)] provides that the widow, orphans and dependent parents of deceased firemen, and all retired firemen who are now entitled to pension or annuity under the provisions of the Act of 1887 as amended, shall be entitled to the benefits, pensions and annuities provided for by this act, provided, such person shall thereupon cease to receive pensions, relief or benefits under said Act of 1887. Section 14 of the Revision Act [Callaghan’s 1916 St. Supp. ¶ 1904(14)] repeals the Act of 1887 and the amendments thereto.

Two reasons are advanced by appellants why Mrs. Smith is not entitled to a pension: First, that she never became entitled to a pension under the Act of 1887 because her husband died before the pension fund had accumulated the sum of $25,000; second, because the Act of 1915 repealed the Act of 1887 as amended without any saving clause. Section 1 of the Act of 1915 provides that the term “fireman” as used therein shall include all persons who at the time that the act shall become effective are entitled to the benefits of the Act of 1887. It seems that there is hardly room for controversy that the husband of Mrs. Smith at the time of his death was, and that Mrs. Smith by reason of his death became, entitled to the benefits of the Act of 1887. The mere fact that the pension fund at that time had not reached the minimum amount which the act provided should be necessary before pensions should be paid did not deprive her of the benefits of the act when the fund had reached the prescribed amount. In the cage of People v. Abbott, 274 Ill. 380, the Supreme Court had before it for construction the Police Pension Fund Act of 1909, which provided for the payment of pensions to policemen who had served as such for a period of 20 years, and to the widows of such policemen. It also provided that the pension fund should be accumulated from ten different sources, which should be- disbursed by a board of trustees, composed of five members, two of whom were to be appointed by the mayor. The action in the Abbott case, supra, was by petition for mandaunis filed upon the relation of two ex-policemen of the City of Quincy, praying that peremptory writ of mandamus be issued commanding the mayor to appoint two qualified residents of that city as members of the Board of Trustees of the Police Pension Fund of said city, in accordance with the provision of the Police Pension Act of 1909. The petition averred that the relators at the time of the retirement from the police force in 1911 had served on such force for 38 and 48 years, respectively, and were eligible to pensions; that no police pension fund had been set apart, formed or disbursed in said city and no board of trustees of such fund appointed pursuant to said act; that relators were entitled to have said pension fund set apart and to participate in the benefits thereof as pensioners ; that the mayor, though requested, had refused to appoint two persons for said board of trustees. The court held that the act was mandatory upon the City of Quincy to create a police pension fund and that the relators were entitled to the benefits thereof. In that case no steps had been taken even to establish a fund, yet the court held that eligible beneficiaries had a right by mandamus to enforce the establishment thereof for their benefit. The Firemen’s Pension Act of 1887 was also mandatory upon the municipalities embraced within its terms, and if the City of Bloomington had failed to take steps to establish this pension fund, unquestionably Mrs. Smith would have had a right to have compelled it to do so. A person otherwise eligible is entitled to the right to the pension provided by the act as soon as it goes into force, and this right cannot be destroyed by failure of the proper officers to enforce the act, or because the fund has not reached the proportion necessary before payments therefrom can be made. In the case at bar, Mrs. Smith became entitled to the benefit of the act when her husband died, and this was that she should receive a pension out of said pension fund as soon as the payments therefor were available.

She being entitled to the benefits of the Act of 1887, her rights to a pension were not defeated by the Eevision Act of 1915. The latter was, as its name implies, a revision of the law in regard to firemen’s pensions. The sections in. the new act which are applicable to the rights of appellee are substantially the same as those contained in the Act of 1887. ‘•Where the law' on a particular subject is revised and rewritten, only the provisions of the old law which' are omitted from the revised act are repealed, and all provisions of the old law retained in the new act are regarded as having been continuously in force. (Mette v. Feltgen, 148 Ill. 357.) * * * There is no hiatus between the death of the old and the coming in of the new law.” Merlo v. Johnston City and Big Muddy Coal & Mining Co., 258 Ill. 328. It undoubtedly was not the intention of the legislature, by the passage of the Eevision Act of 1915, to deprive any person of any benefits which they might have been entitled to under the Act of 1887. The intention that all such benefits were to be preserved is manifest from sections 1 and 8. The policy of creating pensions during recent years has been expanding and the constitutionality of pension acts has been almost universally upheld. “A system of pensions to municipal officers and employees, injured or disabled while on duty or retiring after a term of service, has gradually arisen and is being extended during recent years. The constitutionality of statutes establishing' such pension system is sustained upon the ground that ‘these annuities * * * are in the nature of compensation for services previously rendered for which full and adequate compensation was not received at the time of the rendition of the services. It is, in effect, pay withheld to induce long-continued and faithful service, and the public benefit accrues in two ways:’ by encouraging competent employees to remain in the service, and by retiring from the public service those who have become incapacitated from performing the duties as well as they might be performed by younger or more vigorous men.” People v. Abbott, supra; Hughes v. Traeger, 264 Ill. 612.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Augusta E. Colton, Appellant, v. Board of Trustees of the Firemen’s Pension Fund of Bloomington, Illinois, Appellee.
    1. Municipal corporations, § 143

      —when pension allowable to wife and children of deceased fireman. Under section 8 of the Firemen’s Pension Fund Act of 1887, as amended [Callaghan’s 1916 St. Supp. ¶ 1895], providing that if any member of a fire department in a city which has created a pension fund “shall, while in the service of such fire department, be killed, or die as the result of injuries received while in such service or of any disease contracted by reason of his occupation, or if any member of such fire department shall, while in said service, die from any cause while in said service, or during retirement, or after retirement, after twenty (20) years’ service as hereinafter provided, and shall leave a widow, minor child or minor children under sixteen years of age,” etc., certain sums shall be paid to them monthly from the pension fund, a pension is allowable when a fireman is killed or dies from injuries or sickness contracted by reason of his service, no matter how long he has been in service, and when he dies from any cause not necessarily attributable to his occupation, either while in said service or during retirement, if, at the time of his death, he has served 20 years.
    2. Municipal corporations, § 143

      —when decision of board of trustees of pension fund that widow of fireman not entitled to pension sustained. The decision of the board of trustees of a firemen’s pension fund that the widow of a deceased fireman was not entitled to a pension will be sustained where the right of the widow to a pension depends upon the question of fact whether her husband died by reason of injuries or illness received or caused by the performance of his duties as fireman, and none of the evidence of the witnesses on such question was preserved in the record of the board.
    Appeal from the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding. Heard in this court at the April term, 1918.
    Affirmed.
    Opinion filed July 15, 1918.
    Barry & Morrissey, for appellant.
    Stone & Dick, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

This is a common-law writ of certiorari to review the action of the'Board of Trustees of the Firemen’s Pension Fund of Bloomington, Illinois, in denying a pension to appellant as the widow of Flurry Colton, deceased, and as guardian of their four children, under the age of 16 years. The court overruled the motion of appellant to quash the record but entered an order quashing the writ, to reverse which this appeal is prosecuted.

Flurry Colton was a member of the Fire Department of the City of Bloomington for about 15 years prior to September 18, 1912, on which date he died while in such service, leaving appellant, his widow, and four minor children, aged respectively 8, 6, 4 and 3 years. Appellant, as his widow, and as guardian of the children, on October 18, 1912, filed her application for a pension, which was refused on the ground that the pension fund on that date had not reached the minimum amount of $25,000. The fund did not reach this amount until March 2, 1916, after which she again renewed her application, but the board of trustees refused to grant her the pension. The original pension fund was created under the Firemen’s Pension Fund Act of 1887 (J. & A. ¶ 1888 et seq.), as amended. On July 1, 1915, a Revision Act [Callaghan’s 1916 St. Supp. ¶ 1904(1) et seq.] went into force which repealed the Act of 1887.

Two of the reasons advanced by appellee in this case to sustain the action of the board of trustees in denying the pension were the same as those presented in the case of Smith v. Board of Trustees of Firemen’s Pension Fund of City of Bloomington, ante, p. 122, and are disposed of by the opinion in that case, filed herewith, and need not again be discussed. A third contention, however, is raised in this case which was not presented in the Smith case, supra. Section 8 of the Act of 1887 as amended [Callaghan’s 1916 St. Supp. ¶ 1895] provided: “If any member of such fire department shall, while in the service of such fire department, be killed, or die as the result of injuries received while in such service or of any disease contracted by reason of his occupation, ■ or if any member of such fire department shall, while in said service, die from any cause while in said service, or during retirement, or after retirement, after twenty (20) years’ service as hereinafter provided, and shall leave a widow, minor child or minor children under sixteen years of age, or dependent father or mother surviving, said board of trustees shall direct the payment from said pension fund of the following sums monthly, to wit:”

The point urged is that under the proper interpretation of this section the widow of a fireman, who died while in service, would not be entitled to a pension, if he died from any other cause than from being killed, or as a result of injuries received or by a disease contracted by reason of his service, unless he had been in the service 20 years at the time of his death. This section divides the conditions necessary for a pension into two classes: The first class includes (1) firemen who have been killed in the service; (2) who have died as the result of injuries received in the service; and (3) who have died from any disease contracted by reason of his occupation. The second class includes any member of such fire department (1) who has died from any cause while in said service; or (2) during retirement; or (3) after retirement, after 20 years’ service. In other words, the section provides that a pension is allowable when a fireman is killed or dies from injuries or sickness contracted by reason of his service, no matter how long he has been in such service. These are directly attributable to his occupation. The section also provides that a pension is allowable if he should die from any cause, not necessarily attributable to his occupation, either while in said service or during retirement, if, at the time of his death, he had served 20 years.

The application of appellant for a pension filed with the board of trustees sets out the facts that on April 29,1909, her husband, while working as a fireman upon a fire which consumed the Bloomington Opera House, was struck by a hose, carrying a high pressure of water, upon the leg and upon the side; that the injury received to his side resulted in his death on September 18, 1912; that he had consulted a number of physicians and had submitted to four different operations in an attempt to be cured but had been unsuccessful. The record further shows that her renewed application made February 3, 1916, also stated that her husband-died from injuries received while performing his duty. The record further shows that appellant appeared before the board with her attorney and witnesses and the latter were sworn and examined with reference to the cause of death of her husband. The record further shows that the board denied her petition without assigning any reason therefor. None of the evidence of these witnesses is preserved in the record of the board. The right of appellant to a pension depends upon the question of fact whether her husband died by reason of injuries or illness received or caused by the performance of Ms duties as fireman.

For the reasons stated the judgment of the Circuit Court is affirmed.

Affirmed.