text:
    Sidney Blanchard, Administrator, etc., et al. v. Sylvester M. Chapman.

      Wills — Construction—General Rule — Intention—Implied Trusts — Precatory Words — Excessive Allowance — Evidence.
    1. The general rule applicable in the cunstruction of wills is, that the intention of the testator as expressed in the will construed as a whole must govern and prevail.
    2. When property is given absolutely to any person, and the same person is by the giver, who has power to command, recommended or entreated or wished to dispose of the property in favor of another, the recommendation, entreaty or wish shall be held to create a trust, if the words so used as a whole ought to be construed as imperative; if the subject of the recommendation or wish be certain; and if the persons intended to have the benefit of the recommendation or wish be also certain.
    3. In the case presented, it is held: That an implied trust is raised by words to the effect that the testator relied on his wife to make all needful provisions for the future wants of his brother; and that the complainant is entitled under the evidence to an allowance of $1,000 per year, only from the commencement of this suit.
    [Opinion filed January 22, 1887.]
    Appeal from the Circuit Court of La Salle County; the Hon. G-eoeoe W. Stipp, Judge, presiding.
    • Statement by Lacey, J. Henry B. Chapman died testate June 6, 1881, and bequeathed by his will, among other things, §1,000 to the appellee, who was his brother, to be paid to him at the testator’s decease, and further made this provision: “And having and reposing implicit confidence in the goodness and kindness of my dear wife I rely upon her to make- and all needful provision for the future wants of my brother Sylvester.”
    His wife, Esther S. Chapman, was made the residuary legatee and also executrix. At the death of Henry B. his estate was worth about 870,000.
    The will was duly probated and his wife appointed executrix, June 27, 1881. She paid $700 of the specific legacy to appellee, and gave him a note belonging to the estate for $300, which he accepted for the balance, which is claimed to be now uncollectible. This was all the money or property that shé ever paid him, and she made no provision for his support, except as will be seen hereafter in her will.
    On the 12th day of April, 1885, said Esther died testate, leaving no children as heirs, and bequeathed all her property then consisting of about $66,000, as follows: $300 to her sister; $12,000 to her own blood relations and friends; $3,000 to churches and cemeteries; $6,000 to the Old Ladies Home of Chicago; and the residue, consisting of about $40,000 except the provision for Sylvester hereafter mentioned, to the “ worthy poor ” of the city of La Salle.
    The provision made by her in the will for appellee was that $5,000 should be put at interest at not less than six per cent., and that the income annually should be paid to Sylvester; provided that if appellee, as the result of any litigation or circumstances whatever, should receive anything from any portion of the property left to her by her husband otherwise than from her, then he was to receive nothing under the will. The appellants became the administrator and the executors; respectively, of the estates of the said Henry B. and Esther Chapman, deceased.
    The appellee filed, the bill herein, asking that the will of Henry B. Chapman be construed and the clause in it made for the benefit of .him be held to be peremptory on the said Esther to make the needed provision for his future wants, and that the will be held not to leave it a discretionary matter with' her to do so or not at her option. The bill also shows that the provision made by her in her will for appellee was not sufficient for his needed support.
    Answer was filed, evidence taken, and the cause heard in the Circuit Court. The court sustained the construction of the will contended for by the appellee, and found the provision in Mrs. Chapman’s will insufficient and granted him relief as follows: $4,142.26, being at the rate of $1,000 per annum from one year after the death of said Henry B., to wit, from June 6, 1882, till the date of the hearing July 27, 1886, which sum was to be paid immediately; and then decreed that the said executors of the estate of Esther pay to appellee at the rate of §1,000 per annum, quarterly §250, during his life.
    This suit was commenced August 18, 1885. Hp to that time, so far as the proof shows, the appellee had never made any demands on the said Esther during her life, nor on the executors after her death, till about the time this bill was filed, for any support, but managed to get along on his own resources.
    Messrs. Mato & Widmeb, for-appellants.
    The first and great rule in the exposition of wills, to which all other rules must bend, is that the intention of the testator expressed in his will shall prevail, provided it be consistent wiih the rules of law. Smith v. Bell, 6 Pet. 75; People v. Jennings, 44 Ill. 488; Mason v. Ely, 38 Ill. 138; Blanchard v. Maynard, 103 Ill. 60.
    The intention should be gathered from the whole will; all its words and provisions should be considered, and no part, if possible, left inoperative. Willis v. Watson, 4 Scam. 64; Mason v. Ely, 38 Ill. 138; Brownfield v. Wilson, 78 Ill. 467; Hamlin v. U. S. Express Co., 107 Ill. 443.
    Was it then the intention of the testator here, as declared by the court below, to bequeath to the complainant, in addition to the sum of §1,000, “ such other and fwther sums of money as would be proper and necessary to make any and all-needful provisions for the future wants of complainant/5 — and did the testator intend to impose upon his estate a trust for such purpose ?
    The words, “ to make ( ) and all needful provisions for the future wants ” of another, are not only indefinite as to the quantwri of the supposed gift over, but there is also uncertainty as to the property to be devoted to such purpose, an uncertainty which prevents the creation of a trust, even when the words of the will are imperative (Mills v. Newberry, 112 Ill. 123), and as to the mode in which the provisions may be made; and when, as here, the testator accompanies such language by the expression of his implicit confidence in the goodness and kindness of his donee, it seems to ns clear he intended to leave the subject, both as to quantvm and mode, to her discretion.
    If, upon a fair construction of the whole will, there appears to be an absolute gift to the first taker, a trust will not be imposed upon such gift by expressions of doubtful or uncertain meaning. The general intent clearly expressed must govern, and the gift will not be cut down by such expressions. Barrett v. Marsh, 126 Mass. 213; Huskisson v. Bridge, 4 De G. & Sm. 245; Hay v. Master, 6 Sim. 568; Meredith v. Heneage, 1 Sim. 543; Knott v. Cottee, 2 Phil. 192; Webb v. Woods, 2 Sim. 267; Van Duyne v. Van Duyne, 1 McCarter, 197; Ellis v. Ellis, 15 Ala. 296; Rhett v. Mason, 18 Gratt. 541.
    The testator here expressly declared that by the residuary clause of his will his real estate ‘‘ is entirely devised ” to his wife. If so, it was given to her completely, perfectly, not wanting or defective in any particular, and such gift is inconsistent 'with the idea that he intended to create any interest in or charge upon the same in favor of any other person. Then, as if to make his meaning still plainer, and to gi\7e his construction to the whole will, he declared his “ intention being to make my said wife the residuary legatee of all my estate as aforesaid, after the payment of said funeral expenses, debts and legacy to brother Sylvester, and the devise of said cemetery lot to said Herman Baldwin.”
    Messrs. Duecar & O’Conor, H. W. Cummings and H. T-Gilbert, for appellee.
    The question, and the only question, to be determined in a case of this kind is, not why imperative language was not used bv the testator, but it is, what is the intention of the testator as manifested by the language actually used ?
    In this case there can, however, be a very satisfactory reason given why the testator used the form of expression contained in the will. The $1,000 given to Sylvester was intended to supply his present wants and necessities. What his future wants might he could by no possibility be prejudged or foreseen. Being already past three score and ten and in feeble health, his end might come before additional assistance would be necessary. Should he live for a longer period, the amount necessary to supply his wants would depend upon a variety of circumstances which likewise could not be foreseen.
    It is clear beyond all doubt that the testator intended that Sylvester should be cared for according to his wants, and that he should have no more than is wants required; and it is likewise clear that he intended his wife should have the full enjoyment of his estate, diminished only by such amounts as should be necessary, from time to time, to properly care for his brother.
    “ If a testator make an absolute gift to one person in his will, and accompany the gift with words expressing a ‘ belief,’ ‘ desire,’ ‘ will,’ ‘request,’ ‘ will and desire;’ or, if he ‘ will and declare,’ ‘wish and request,’ ‘wish and desire,’‘entreat,’ ‘most heartily beseech,’ ‘ order and direct,’ 1 authorize and empower,’ ‘recommend,’ ‘hope,’ ‘do not doubt,’ ‘be well assured,’ ‘ confide,’ ‘ have the fullest confidence,’ ‘ trust and confide,’ ‘have full assurance and confident hope,’ or, if he make the gift, ‘under the-firm conviction,’ or ‘well knowing,’ or, if he use the expressions, ‘ of course the legatee will give,’ or, ‘ in consideration that the legatee has promised to give’, — -in these and similar cases, courts of equity consider the intention of the testator as manifestly implied, and they will carry the intention into effect by declaring the donee or first taker to be a trustee for those whom the donor intended to benefit.” Perry on Trusts, Sec. 112. See also Knight v. Knight, 3 Beav. 172; Knox v. Knox, 59 Wis. 172, (48 Am. R. 487,) a leading case upon the subject of precatory trusts; Warner v. Bates, 98 Mass. 294; Lucas v. Lockhart, 10 Smedes & M. 466, (48 Am. Dec. 766); Harrison v. Harrison, 2 Grattan, (44 Am. Dec. 365.)
    When a bequest is for the maintenance, support and education of an infant, or for the maintenance of an adult, although no amount be specified, the court will determine the amount to be applied for that purpose. 1 Jarman on Wills, 649; Broad v. Beran, 1 Russ. 511; Pride v. Fooks, 2 Beav. 430 ; Kilvington v. Gray, 10 Sim. 293. This must necessarily be the law, for otherwise no trust could be created by a last will and testament for the maintenance or support of any person, unless the testator could foresee the exact amount necessary in such a case.
   Lacey, J.

The first question to be decided is as to the proper construction to be given to the clause in the will of Henry B. Chapman, deceased, made for the future support of the appellee. Was it a direction, or did it leave the matter to the arbitrary discretion of his wife, the executrix appointed in the will? We are of the opinion that the court below gave the proper construction of the clause in question.

It was undoubtedly the desire of the testator that his brother, who was a poor man and becoming quite old and helpless, he then being near seventy years of age, should have a decent and comfortable support out of his large estate. Henry B. Chapman appears to have been benevolent and kind toward his brother and to have for some time aided and assisted him pecuniarily to make a support for himself and family.

It could not have been the intention of the testator to cut off his brother from a comfortable support, or to have him restricted to an insignificant sum per annum, and the balance given by his wife at her death to the “ worthy poor ” of the city of La Salle and other indifferent persons and objects. We can not but think that his wish and desire have been disregarded and his benevolent intentions toward his br< her thwarted by the will of his wife if that be carried out.

The general rule of construing wills is that the intention of the testator as expressed in the will, construed as a whole, must govern and prevail. The language in this will is quite strong: I rely on her (his wife) to make all needful provisions for the future wants of my brother, Sylvester.’’

If he relied upon her to do this it was certainly his will that it should be done, not that it should be wholly or in part omitted.

If the testator had not had confidence in the goodness and kindness of his wife as he recites he had, he would not have intrusted the matter to her at all, but would have chosen another in whom he did have confidence to carry out his will and good intention toward his brother, who was old • and poor, while the testator was wealthy and had good feeling toward him. He believed in the goodness and kindness of heart of his wife, and for that reason believed that she of all others would carry out his intentions in letter and spirit; therefore she was intrusted with the full title - to all his property and with the trust.

The testator wants the trust executed in behalf of his brother, and he relies upon her as the trusty instrument to carry out his will. The will does not provide that the future wants of his brother may be supplied or not at her option, but she is relied upon to do the acts desired. The language will not bear the construction contended for by appellants that the will left it a matter of discretion with his wife.

The general rule of law in construing such clauses in wills as to whether they are precatory or absolute is, that, “ when property is given absolutely to any person and the same person is, by the giver who has power to command,''recommended, entreated or wished to dispose of the property in favor of another, the recommendation, entreaty or wish, shall be held to create a trust, if the words so used as a whole ought to be construed as imperative, if the subject of the recommendation or wish be certain, and if the persons intended to have the benefit of the recommendation or wish be also certain.” Knight v. Knight, 3 Beav. 172 ; Perry on Trusts, Sec. 112; Knox v. Knox, 59 Wis. 172 (48 Am. Rep. 487).

All these elements seem to combine in the present case. As to this assignment of error we hold that no error was committed by the court below

As to the amount that was allowed it is objected that it was excessive. We have examined the evidence carefully and are of the opinion that $1,000 per annum, considering the amount and value of the estate, is not an excessive allowance for the necessary and reasonable wants of the appellee and that the amount provided for by Mrs. Chapman was inadequate. But, as we read the will, no support was due the appellee unless he really needed it.

The will does not provide that he should be paid a sum equal to his wants whether he needed it or not for his actual support. He might have means of his own or be able to make his owm living. He might never call for any support and might manage to pay his own way and in case he did so the estate would not be his debtor at all. It appears from the evidence that appellee had the legacy of $1,000 his brother left him and some property of his own, and that he never called on Esther S. Chapman for any support during her life nor of her executors after her death, till about the time this bill was filed. And it does not appear from the evidence that appellee had incurred any indebtedness on account of his living that was unpaid at the time this suit was commenced. We can not see under what principle of law he could recover at the rate of $1,000 per annum from one year after his brother’s death to the time the suit was commenced. The commencement of the suit may be regarded as a demand for support and he reasonably might be allowed from that time to the date of the trial and from that date forward ; but not prior to that under the evidence. For the réason that the court below allowed appellee the sum of $3,208.66 from June 6, 1882, to August 18, 1885, the date when the suit was commenced, that much of the said decree is reversed, and the balance of the amount due and decreed of $933.60, and the decree for the quarterly payments of $250 after the date of the decree, July 27, 1886, and in all other respects, is affirmed, and the costs of this court is awarded against the executors of Mrs. Chapman, deceased.

jDecree affirmed in part and reversed'in ypa/i't.


source: Caselaw Access Project

author: Baker, P. J.

license: Public Domain

text:
    John Root v Lyman Paine.

      Writ of Assistance — Former Adjudication — Parties—Purchase Pendente Lite.
    Upon a writ of error from a decree awarding a writ of assistance to put the complainant in possession of lands purchased by him at a master’s sale, it is held: That the defendant was not a party to the proceedings leading to said master’s sale and is not bound by the decree therein; and that he was not, in a legal sense, a purchaser pendente lite.
    [Opinion filed January 24, 1887.]
    In error to the Circuit Court of Henry County; the Hon. Arthur A. Smith, Judge, presiding.
    Messrs. H. Bigelow and C. Dunham, for plaintiff in error.
    Mr. J. T. Kenworthy, for defendant in error.
   Baker, P. J.

The chancery cause locally known as The Bishop Hill Colony case” was commenced in the Circuit Court of Henry County, on the 27th day of July, 1868, and under and by virtue of certain decrees entered therein, the special master, in 1879, sold numerous parcels of real estate, including the several tracts of land that are the subject of this controversy. These last mentioned lands were not redeemed from the sale, and in April, 1881, the master executed a deed to the purchaser, and in July of the same year the latter made a conveyance to Lyman M. Paine, defendant in error.

The defendant in error, in 1882, filed in the Circuit Court his petition for a writ of assistance to put him in possession of said lands, and made John Boot, plaintiff in error, who was in the actual possession of the premises, defendant to such petition. The result of the proceedings upon this position was that the court decreed the writ of assistance should issue.

The matters that were involved in the “Bishop Hill Colony case ” are res jtidicata as to all who were parties to that litigation; and as the time for questioning by writ of error the decrees rendered therein has long since expired, no question of reversing them arises. The propriety of the decrees must now be conclusively presumed in respect to all who were parties to them. A claim is made by plaintiff in error that a writ of assistance does not issue as a matter of right, and that even waiving the question of the jurisdiction of the court in the colony case to render a decree that could affect his rights, the court below should have refused to award the writ on the ground it would be aiding injustice and the accomplishment of a wrong, and should have remitted defendant in error to his remedy in the court-of law. In the view we take of the case we deem it unnecessary to determine the contention on.this point.

Upon consideration of the facts that appear in the record, we are all of opinion that Boot, the plaintiff in error, was not a party to the colony case, and as such bound by the decrees therein; and are also of opinion he was not, in a legal sense, a purchaser pendente lite of any of the tracts of land in question.

Our conclusion is that the decree of the Circuit Court, rendered Hovember 14, 1885, in favor of defendant in error and requiring plaintiff in error to surrender possession of the lands, and awarding a writ of assistance and ordering the plaintiff in error to pay costs, was erroneous. That decree is reversed and the cause is remanded, with directions to dismiss the petition of defendant in error and render judgment against him for costs.

Reversed a/nd remanded.


author: Lacey, J.

text:
    Thomas J. Robinson et al. v. William H. Appleton et al., Administrators, etc.

      Foreclosures by Executors of Vendor's Lien — Bight of Action Survives • — Quit Claim Deed — Executory Contract — Possession of Purchaser — After-acquired Title — Estopqiel—Statute of Limitations.

    1. A quit-claim deed conveys in fee whatever estate the grantor has, and it implies that he has an estate to convey.
    2. The lien of a vendor does not expire with his death, and it may be foreclosed as a mortgage by his executors.
    3. The purchaser of land in possession under an executory contract of purchase holds under the title of the vendor, and in all proceedings for the recovery of possession by the endor, he is estopped from disputing his title.

      4. Upon a bill filed by the executors of the vendor to foreclose as a mortgage the vendor’s lien on certain premises, which is witnessed by a bond for the conveyance thereof and certain notes for the purchase money therefor, it is held: That the cause of action survived; that the right to maintain it was not lost by lapse of time, the debt not having been barred by the Statute of Limitations; that the purchaser, and those holding under him, can not set up an after-acquired title against the vendor’s lien; that before setting up such title they must surrender possession, especially as the strength of the vendor’s title rested on the Statute of Limitations; and that the decree of the court below is not to be understood as foreclosing any rights which the defendants have under said after-acquired title.
    [Opinion filed February 1, 1887.]
    Appeal from the Circuit Court of Rock Island County; the Hon. Arthur A. Smith, Judge, presiding.
    Messrs. Iba O. Wilkinson and Sweeney & Walker, for appellants.
    The English chancery doctrine of the vendor’s equitable lien for unpaid purchase money is adopted in several of the States of this country, while in others of them it has been condemned and rejected as being an encroachment on the legislative power and not in accord with the spirit of the recording laws. See Am. notes to Mackreth v. Symmons; 1 White & Tudor’s Lead. Cas. in Eq. (4th Ed.), 481.

      Iii this State it is recognized, but not encouraged by the courts, and will be enforced only in cases that are clear. Conover v. Warren, 1 Gilm. 498, 502; Trustees v. Wright, 11 Ill. 603-9; S. C., 12 Ill. 432, 440; Richards v. Leaming, 27 Ill. 432.
    Complainants do not sue as vendors, nor as representatives of, and for the benefit of the estate of the vendor, deceased, but in their own right as devisees of the real estate and notes, to the use and benefit of the cestuis que trust named in the will.
    Under these circumstances the lien can not be enforced, The lien where it exists, is strictly personal in the vendor and can not be assigned or transferred in any way, even by express contract. It can be enforced only by the vendor, and is not ennforceable in his name for the benefit of another, who is the purchaser of the note. Small v. Stagg, 95 Ill. 39; Elder v. Jones, 85 Ill. 384; Bonnell v. Holt, 89 Ill. 71; McLaurie v. Thomas, 39 Ill. 291; Richards v. Learning, 27 Ill. 431; Keith v. Horner, 32 Ill. 524; Dayhuff v. Dayhuff, 81 Ill. 499; Wing v. Goodman, 75 Ill 159.
    Where the lien has not been transferred, it can be enforced after the death of the vendor by his personal representative, for the benefit of the estate. Richards v. Leaming, 27 Ill. 431; Keith v. Horner, 32 Ill. 524; Dayhuff v. Dayhuff, 81 Ill. 499.
    Upon the taking effect of the devise, the legal title to the real estate and notes became vested in the complainants and the equitable title in the cestui que trust, and the lien, if any not passing therewith, lapsed.
    The vendor did not sell or contract to sell or convey land or any specified estate in land, but only his right, title and interest at the time of the bond, and a deed made in accordance with the bond would not, by its terms, convey, or purport to convey, land or any estate in land. Frink v. Darst, 14 Ill. 304-307; Bride v. Watt, 23 Ill. 507; Kruse v. Wilson, 79 Ill. 233, 240.
    As the lien arises on a sale of land only, and attaches to and is enforced only upon the estate sold, the bill should show and the contract prove the particular estate sold so as to enable the court thereby to ascertain and determine whether a lien attached, and if so, to what estate it attached and upon what estate it should be enforced.
    Mo lien was reserved or implied under the circumstances shown. Richards v. Leaming, 27 Ill. 431; Kirkman v. Boston, 67 Ill. 599, 603; Moshier v. Meek, 80 Ill. 79, 81.
    By the non-payment of the notes for the last two installments of purchase money, due November 1, 1874 and 1875, respectively, and of. interest thereon after May 1, 1876, the obligation of Cooley to convey ceased and determined, and by its terms, became void and of no effect. Being void and of no effect, no lien can be predicated thereon, or performance thereof be enforced; and certainty not on the application of the vendor, by whom and for whose benefit the condition was made. The court will hold him to' the terms of his contract. Cunningham v. I. C. R. R. Co., 77 Ill. 178; Phelps v. I. C. R. R. Co., 63 Ill. 468; Stow v. Russell, 36 Ill. 18; Steele v. Biggs, 22 Ill. 643.
    An implied lien on land for the payment of the purchase money, must, as against third persons, be enforced by the vendor within a reasonable time, after his right tó do so attaches, or it will be taken as waived. Conover v. Warren, 1 Gilm. 498, 502; Trustees of Schools v. Wright, 11 Ill. 603, 609; S. C., 12 Ill. 432, 440.
    There is nothing in the contract or the relation of the parties which estops or forbids the defendants from acquiring outstanding titles. The purchaser of land, while in possession under his contract of purchase, is under no obligation to maintain his vendor’s title, and the law does not forbid him from buying an outstanding title to the premises and asserting it against the vendor. Frink v. Darst, 14 Ill. 304; Phelps v. Kellogg, 15 Ill. 131; DeWolf v. Hayden, 24 Ill. 525; Roberts v. Fleming, 53 Ill. 196; Hitchcock v. Fortier, 65 Ill. 239; Holbrook v. Debo, 99 Ill. 372, 380 ; Green v. Dietrich, 114 Ill. 636.
    Titles so acquired by the purchaser do not, in the absence of covenants, enure to his vendor. R. S., Chap. 30, “ Conveyances,” Sec. 7.

      Mr. Henry Curtis, for appellees.
    In the case of executory contracts for the sale of real estate the vendor is regarded as the trustee of the title for the vendee, and has a lien on the premises sold for his payment, and the vendee is considered the trustee of the purchase money for the vendor. Lombard v. Chicago S. Cong., 64 Ill. 477, 481; Baldwin v. Poole, 74 Ill. 97; Wright v. Troutman, 81 Ill. 374; Sutherland v. Harrison, 86 Ill. 363, 367; Hutchinson v. Crane, 100 Ill. 269, 274; Home Mfg. Co. v. Gough, 2 Ill. App. 477; Vail v. Drexel, 99 Ill. App. 439, 448; Clarke v. Baker, 14 Cal. 612.
    In such executory contracts, where the vendee has entered into possession thereunder, he is in equity considered the owner, subject to the lien of the vendor for the unpaid purchase money, and while the vendee and his. grantees retain such possession they are estopped from denying the vendor’s title, as against any action or proceeding of the vendor to enforce payment of such purchase money. The relation in this respect between them is that of landlord and tenant, and strongly analogous, and usually treated as that of mortgagee and mortgagor.
    After conveyance the parties stand upon their covenants, but before conveyance they stand upon their equities. 3 Pomeroy’s Eq. Jur., 269 ; Bigelow on Estoppel (3d Ed. 1882), 428, 429; Tyler on Adverse Possession, Sec. 3, Chap. 31, 557-559.
    Contract for sale of land. “ It is a well established rule that where a purchaser has been put in possession he can not afterward acquire a title and set it up in opposition to the vendor.”
    The following authorities support the same doctrine : Hill v. Hill, 4 Barb. 429 ; Clark v. Baker, 14 Cal. 612; Wilkinson v. Green, 34 Mich. 321; Kealy v. Crane, 34 Pa. St. 146; Lewis v. Hawkins, 23 Wall. 125 ; Galloway v. Findley, 12 Pet. 294; Bush v. Marshall, 7 How. 291; Threadgill v. Pintard, 12 How. 36.
    The Illinois cases are also in full accord with this doctrine. Tilghman v. Little, 13 Ill. 239; Hale v. Gladfelder, 52 Ill. 91, 97; Lesher v. Sherwin, 86 Ill. 420 ; Laforge v. Matthews, 68 Ill. 328 ; Martin v. Judd, 81 Ill. 488, 495 ; Vining v. Leeman, 45 Ill. 246. See also, Strong v. Weddell, 56 Ala. 471; McCaslin v. State, 44 Ind. 151; Pershing v. Canfield, 70 Mo. 140; Sales v. Smith, 12 Wend. 57; Jackson v. Walker, 7 Cow. 637.
    The lien held by Cooley, in his lifetime, upon the premises, for the payment of the purchase money, passes with the debt to appellees, his executors. Hutchinson v. Crane, 100 Ill. 269; Home Mfg. Co. v. Gough, 2 Ill. App. 477; Blaisdell v. Smith, 3 Ill. App. 150 ; Carpenter v. Mitchell, 54 Ill. 126; Markoe v. Andras, 67 Ill. 34; Wright v. Troutman, 81 Ill. 374; Vail v. Drexel, 9 Ill. App. 439, 448; Stevens v. Chad, 10 Kan. 406; Richards v. Leaming, 27 Ill. 431.
    All the appellants had notice by the record of the bond, December 28.1886, before any of them purchased, and it informs them that the purchase money was unpaid, and puts them on inquiry. Snapp v. Pierce, 24 Ill. 156; Bishop v. Newton, 20 Ill. 175, 180; Fryo v. Partridge, 82 Ill. 267, 272; Ætna L. Ins. Co. v. Ford, 89 Ill. 252; McLaurie v. Thomas, 39 Ill. 291; Amory v. Reilly, 9 Ind. 490.
    Cooley’s lien and security passed at his death, with the notes, to his executors, appellees. “ Vendor’s lien is held to pass by devise.” Richards v. Learning, 27 Ill. 431; Keith v. Horner 32 Ill. 524; Dayhuff v. Dayhuff, 81 Ill. 499.
   Lacey, J.

This was a bill brought in the ordinary form to foreclose as' a mortgage the vendor’s lien reserved by operation of law to James E. Cooley, now deceased, in a certain bond executed by him in his lifetime to David B. Sears, for certain real estate situated in the county of Eock Island. On the 1st day of Hovember, 1866, James E. Cooley executed to said Sears a certain bond for a deed, in which he bound himself to execute unto said Sears a quit-claim deed to all the land described in the bond, in which was to be conveyed “ all his right, title and interest in and to said real estate,” being on Vandruff’s Island, in said county.

The consideration to be paid him was $30,000, as follows: $5,000 to be paid down; $5,000 in four years; $5,000 in six years; §5,000 in seven years ; §5,000 in eight years, and §5,000 in nine years, respectively, from the date of the bond, all drawing 7 per cent, interest, for which deferred payments said Sears was to and did give to Cooley his promissory notes as agreed. All the notes were duly paid, as well as the cash payment, except the two notes last falling due and interest thereon. Cooley having died, and the appellees having been appointed his executors, commenced this foreclosure proceeding in the Circuit Court against said Sears and his numerous assignees of specific portions of the real estate in question® and some probably who did not claim under Sears, for the use of certain legatees under said Cooley’s will. The commencement of the suit was to the September term, 1883. One of the respondents demurred to the bill, which was overruled, and it abided its demurrer and the balance answered. The suit came to a hearing and resulted in a decree of the Circuit Court in favor of the appellees, and the court found the amount remaining due to be $17,248.40, fixed a day'for payment, and in default thereof ordered the land sold, and if not redeemed, ordered the possession to be delivered to the purchaser or purchasers of said tract or portions thereof which might be sold under the decree. The proof, as we think, showed clearly that as to all the portions of the land in question in this appeal the said Sears, soon after his purchase in the spring and summer of 1867, went into the actual possession under said agreement of purchase.

To reverse this decree this suit is brought.

Some general objections are made against the right of the appellees to bring this suit, and against the right at the time. These are as follows: The appellees were not vendors; no estate in the land was agreed to be conveyed; the agreement in the bond being a mere release, no lien could be implied under the circumstances. We have carefully examined the authorities cited to sustain the position, as well as others on the same subject, and think the points are not well taken.

It is true the appellees were not the vendors of the real estate sold, but they were his legally appointed executors, and succeeded to all the personal estate of the original vendor and held the legal title to the notes.. They were the only ones authorized bylaw to bring suit to collect them. ■ The vendor’s lien did not expire at the death of the vendor. As to the point raised that a quit-claim deed conveys no estate, we think it equally untenable with the other. A quit-claim deed purports to convey an estate, and does convey in fee whatever estate the grantor has, and, furthermore, it implies that he has an estate to convey.

Though subsequently executed, it will take precedence in absence of notice of an unrecorded warranty deed from the same grantor. It is-not a mere release. It is a conveyance, and mainly differs from a warranty deed in its covenants. We are unable to see why a vendor’s rights as to his lien should not be protected the same as though he had agreed to warrant the title.

It is claimed by appellants’ counsel that the appellees have been remiss in not bringing the suit sooner and that the right to bring this action has been lost by lapse of time. This point is equally untenable. The vendor’s lien here reserved is in the nature of a mortgage, witnessed by the bond for conveyance given by Cooley to Sears, and the notes executed at the same time by Sears to Cooley. Hutchinson v. Crane, 100 Ill. 269.

This action could be maintained like a bill to foreclose a mortgage, any time before the debt became barred by the Statute of Limitations. The court did not err in overruling the demurrer filed by the Eock Biver navigation and WaterPower Company.

There was sufficient matter in the bill to entitle the appellee to relief, though all the relief asked for may not on hearing be allowable. The demurrer was properly overruled.

The main points in controversy grow out of the contest in regard to the right of appellee to have a decree for the delivery of possession to the purchaser or the purchasers at the sale under the decree of the undivided half of the north fractions of sections numbered 23 and 24 on Vandruff’s Island, together with the equal and undivided one-half of the dam constructed and erected from said fractions, and the water power and privileges thereto appertaining, and all the buildings, mills, machinery and structures that may be thereto attached or erected. These tracts were included in the bond, and it appears that the title of Cooley to this portion of the real estate conveyed was deraigned through a government entry of the land by one Boss, and by assignment by Boss to Vandruff in February, 1843, and by the latter to Cooley the same year by mortgage, which was foreclosed by Cooley, and deed procured by him under foreclosure proceedings. But Boss’ entry was canceled in 1856, and in July of the same year Bracket & Waite enLered the said fractions and received a patent therefor.

In the fail of 1867 the said Bracket & Waite commenced an action of ejectment against Sears, the grantee of Cooley, thereby acknowledging his possession, which the evidence shows he had taken under his purchase from Cooley of these fractions, as well as all or nearly all the balance of the real estate purchased.

Then Sears settled the matter with the said Bracket & Waite and took their deed for the said fractions. The appellants, who claim under Sears, set up and claim that Sears had a legal right to buy said title in the manner he did, and set it up against Cooley and his representatives, and to claim under such title as against Cooley, and to refuse to surrender possession in case of foreclosure and sale under the vendor’s lien of appellant, in case this land shall be sold and deed acquired under sale.

The court below, by its decree, ordered that the parties respectively who have possession of portions "of said fractions, who went in under and through Sears’ title, who went into possession under Cooley, be enjoined and restrained from setting up or asserting as against appellees and those claiming under them, and their said lien for the unpaid purchase money, any interest, right, title interest or right of possession, etc., derived by them or either of them under or through said deed of conveyance from Bracket & W aite to said Sears, dated September 9, 1867, and that the injunction by this decree, granted as aforesaid, continue and be in force until said remaining purchase money and interest so found due complainants be paid, and said premises redeemed from sale hereunder, or until appellees or those claiming under them or their said lien be let into possession of the said premises.

It is contended by appellants that the purchaser of land, while in possession under his contract of purchase, is under no obligation to maintain his vendor’s title, and the law does not forbid him from buying an outstanding title to the premises and asserting it against his vendor, and quotes the case of Green v. Dietrich, 114 Ill. 636, in support of the claim. While this is the law under certain circumstances, we do not think it applicable to a case in its £,cts like the one at bar. If this should be so the appellees, in case of sale and acquisition of deed under it, would not get back the title and interest sold by Cooley to Sears. Cooley’s possession was a very important part of his title to these fractions, because his title could only be made good by possession and the running of the Statute of Limitations; and although that issue was not tried in this suit, it may be Cooley had a complete har under the statute at the time he sold and delivered possession to Sears, or it may be it was about to ripen into a bar.

Continued possession would be essential to the maintenance of such title by bar. If Sears and his grantors can not be compelled to surrender such possession he may lose what was a good title at the time he sold to Sears. The vendor’s lien woSld not in that event cover and protect the title he parted with in case of non-payment. Cooley put Sears in possession when he sold, and he should have the possession returned to him if he is compelled to take the land back for his pay. In Hale v. Gladfelder, 52 Ill. 91, the Supreme Court lays down this rule : “ The relation of vendor and purchaser is such that when the latter enters into possession under the contract to purchase, the possession is that of the vendor. By the purchase he recognizes the vendor’s title, and like a tenant, in all proceedings for the recovery of possession by the vendor, he is estopped from disputing his title. He enters and holds under the title of the vendor, and his occupancy is subservient and subordinate to that title, and from this relation and for the same reason his possession becomes as fully that of the vendor as does that of a tenant become that of the landlord.”

This doctrine is fully approved and reiterated in Martin v. Judd, 81 Ill. 488. What the rule is in case of landlord and tenant is familiar to all. By the language used by the court in the case of Green v. Dietrich, supra, it was not intended to overrule the doctrine so deliberately announced in the- above two cases.

The language used by courts in .deciding a cause must always be construed with reference to the facts of the case.

In that case the decision was perfectly proper on the facts, and the rule would be general as there announced in all cases similar in principle to it. It will be seen that the vendor in Green v. Dietrich, supra, if he may be regarded as vendor at all, had no title and did not assume to have any, and only sold the land in case he could acquire a title in three years, and then in case the vendor acquired no title, the vendee could pay him a reasonable rent, as long as he could hold peaceable possession, till the expiration of three years. The court holds that the relation of landlord and tenant did not exist after the expiration of three years, and certainly, as the vendor failed to get any title, the relation of vendor and vendee did not, and no consideration of m orals forbids his acquiring title. There was no relation of trust and confidence between the parties. We have carefully examined the two cases cited by the court in the case of Green v. Dietrich, supra — Bright’s Lessee," 7 Wheat. 535, and Jackson v. Johnson, 5 Cow. 74 — and find that they do not contravene the doctrine of the subordination of the vendee to that of the vendor where there is" an executory contract of purchase and the vendee enters into possession under his vendor.

In the case of Jackson v. Johnson above, the doctrine is clearly recognized that where one goes into possession under contract of purchase, while the purchase money remains unpaid, he can not assert and hold adversely to his vendor. In the case of Bright’s Lessee, 7 Wheat. 549, the court, by Chief Justice Marshal], says: “The propriety of applying the doctrine between lessor and lessee to a vendor and vendee may well be doubted.” The court then concludes, “that where the vendor has executed a deed of conveyance to the vendee the latter acquires the property for himself and his faith is not pledged to maintain the title of the vendor. The rights of the yendor are intended to be extinguished by the sale, and he has no continuing interest in the maintenance of his title unless he shall be called upon in consequence of some covenant or warranty in his deed. The property having become by the sale the property of the vendee, he has a right to fortify that title by the purchase of any other which may protect him in the quiet enjoyment of his premises. Ho principle of morality restrains him from doing this, nor is either the letter or spirit of his contract violated by it. The only controversy which ought to arise between him and the vendor respects the payment of the purchase money. How far he may be bound to this by law, or by the obligations of good faith, is a question depending on all the circumstances of the case, and in deciding it, all those circumstances are examinable.”

We think the above announces a salutary rule and but sustains the doctrine announced in the case of Martin v. Judd and Hale v. Goodfellow, supra, and also Green v. Dietrich, supra. In the case at bar the rule that requires the vendee to hold his title subordinate to that of the vendor is peculiarly applicable. The purchase money is unpaid and the possession was taken subject to the payment of the notes. The strength of Cooley’s title rested on the Statute of Limitations and it was therefore most essential to him that in case he had to take the property-back, on account of the failure of the appellants to pay him as agreed, he would be in no worse position than when he trusted Sears on the faith of his contracts with the possession of the land. It was not improper for the appellants or Sears to buy in the outstanding title which they did, but they should not be allowed to make use of the position of vantage which they procured under the contract with Cooley to defeat his claim for the purchase money.

And in order not to do this they must surrender possession to the one who becomes the purchaser and procured deed under these proceedings to foreclose. The Bracket & Waite title is not by the decree taken from appellants; they are left at liberty to' assert it after possession is once surrendered. It is only a temporary right to assert it that the decree enjoins. There is no good reason why a court of equity should not order the delivery of possession to the person who acquires a deed under these proceedings. It is nothing more than an act of complete justice.

This Bracket & Waite title so far as the evidence shows was never made known to Cooley in his life by Sears or his grantees and never till their defense was set up was it made known to appellees. We find no valid objections to the findings of the decree or its provisions and think that they are supported by the evidence and that the tender of the deed before the suit was commenced is sufficient. We do not understand that the court below adjudicated the question as to the validity of the Bracket & Waite title or passed upon it in any way. The decree in effect when the pleadings are considered simply orders the sale of whatever title appellants have in equity to the real estate in question derived through Cooley. But in order to make the matter certain and put it beyond question the decree is ordered to be modified as follows:

This court finds that said David B. Sears, on the 9th day of September, A. D. 1887, acquired a deed in and to said fractional sections 23 and 24 while in said possession under said Cooley from said Bracket & Waite, and the said decree of the court is so amended and modified that said decree is not to be so read or understood as to foreclose any right that any of the respondents may have under said deed, or their liberty to assert it in any legal manner after the surrender of possession in accordance with the provisions of the decree entered by the court below.

With this modification the decree of the court below is affirmed and the costs of this court adjudged against appellants.

Decree modified and affirmed.


author: Per Curiam.

text:
    The People ex rel. William H. Stoelke v. Rollin S. Williamson.

      Practice — Bill of Exceptions — Mandamus to Compel Judge to Sign— Time — Waiver—Stipulation.
    Upon a petition to compel a Judge of the Superior Court of Cook County to sign a bill of exceptions, it is held: That the acceptance of the bill by plaintiff’s attorney and a stipulation between the attorneys of the parties for delay pending the absence of the Judge, in connection with the acts of the attorneys, amounted to a waiver of the right of the plaintiff to have it presented to the Judge within the time limited by the order of the court; and that the fact that the bill would not be filed in time to perfect the appeal to this court, does not affect his right to file it.
    [Opinion filed January 13, 1887.]
    On petition for mandamus.

    Messrs. George C. Buell and Wm. B. Bradford, for petitioner.
    Mr. Arnold Tripp, for respondent.
   Per Curiam.

This is a petition for a writ of mandamus to compel Rollin S. Williamson, one of the Judges of the Superior Court of Cook County, to sign and seal a bill of exceptions in a certain suit, the trial of which took place before him. The trial of the case was had on Hay 6, 1886; motion for a new trial was denied and judgment rendered. An appeal was allowed to petitioner, and an order entered giving him twenty days time within which to file his bill of exceptions, and the time was extended by orders entered on the record from time to time till August 3, 1886. On August 2, 1886, the following stipulation was given by the.attorney for plaintiff in said suit to the attorney for the defendant:

“In the case of the Chicago Building Supply Company v. Stoelke, owing to the absence of Judge Williamson, I consent that the bill of exceptions, when approved, may be filed as of August 2,1886. (Signed) Abnold Tbipp,

For Plaintiff.”

^Respondent opened his court after the summer vacation, on September 20, 1886, and on October 15th the bill of exceptions was presented to respondent to sign, and he refused to sign the same., From affidavits attached to the petition and the answer it appears that short-hand notes of the testimony given at the trial of said suit were taken, and that the evidence was written out and was in the possession of the attorney for the defendant at the" time the motion for a new trial was overruled, and that on August 2d, at the time when the stipulation above set out was given, the bill of exceptions was delivered to plaintiff’s attorney to look it over and see what, if any, objections he had to suggest; that said bill of exceptions was returned to the office of defendant’s attorney about August 10, 1886, with corrections in pencil noted thereon, but that the attention of defendant’s attorney was not called to the return to his office of said bill of exceptions, and that lie did not discover that it had been so returned till a few days prior to the commencement of the October term of this court. On October 9, 1886, a notice was served on the plaintiff’s attorney "by .the attorney for defendant in said suit, that on October 11, 1886, at the opening of court, the bill of exceptions would be presented to the Judge for approval and signature. And on the 15th day of October the matter was heard by the court upon affidavits filed By Both parties, and respondent refused to sign the bill of exceptions presented. Eespondent states in his answer that he “ has not examined the same and therefore can not say whether it is a correct bill of exceptions or not but determined the question solely on the ground that the time within which the bill of exceptions should have been presented had expired.”

The usual practice that has obtained in this State with reference to the filing of bills of exceptions where there is no special rule of court, is for .the party who is to prepare the bill to present it to the Judge, upon notice to the other party within the time limited by the ,,order of court. If the other party desires to examine it before it shall be signed, the Judge will mark on the bill the fact of its presentation, and the other party may then take it, and thereafter time will not run against the party who has prepared the exceptions. Underwood v. Hossack, 40 Ill. 98; Magill v. Brown, 98 Ill. 235, 239.

We think the fair interpretation of the stipulation and the acts done by the attorneys when it was signed was that taking of the bill of exceptions by plaintiff’s attorney was a waiver of its being presented to the Judge at that time, and was of the same effect as if it had been so presented and taken by the plaintiff’s attorney for examination, and that thereafter time did not run against the defendant. The bill of exceptions was then in the hands of the plaintiff’s attorney, under the stipulation that when signed it should be filed as of August 2d. He was then bound to take some step before he could justly object to have the bill of exceptions signed and filed as of that date. It appears from the record that defendant’s attorney had no knowledge that the bill had been returned to his office until a short time.before he presented it to the court for signature. Ho notice was served upon him by plaintiff’s attorney specifying objections to the- bill or requiring him to appear before the court and have it settled. When defendant’s attorney discovered that the bill had been returned to his office, and that there were objections noted upon it, he proceeded with proper diligence to have the bill settled and signed, and under the circumstances we do not think that plaintiff was in a position to object to the signing of the bill on the ground that the time for filing had elapsed.

The fact that the bill would not be filed in time to perfect the appeal to this court, ought not to militate against defendant’s right to file it. He can take a writ of error as a matter of legal right, and a bill of exceptions may be important to him in prosecuting such writ.

We are of opinion, under all the circumstances of this case, that the bill of exceptions ought to have been signed by the respondent when presented to him, and the mandam,us will therefore be awarded pursuant to the prayer of the petition.

Mandamus awarded.


author: Bailey, J.

text:
    John Johnson v. Frank Crane and Maurice Ring.

      Landlord and Tenant — Forcible Entry wnd Detainer — Confession of Judgment — Motion to Vacate — Execution of Lease — Agreement for Extension — Evidence.
    1. A lease, containing a warrant of attorney to confess judgment in forcible detainer, is sufficient to authorize such confession, if duly executed by the lessee, although executed in the name of the lessor by his agent without proper authority.
    2. In the case presented, it is held: That, as the bill of exceptions does not preserve all of the evidence, it will be presumed that sufficient evidence was heard to warrant the court below in refusing to vacate the judgment entered by confession on the lease; and that the affidavits preserved in the record do not sustain the lessee’s claim of a binding contract for an extension of the tenancy.
    [Opinion filed January 26, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Rollin S. Williamson, Judge, presiding.
    Mr. John M. Beyebley, for appellant.

      Mr. William Starkey, for appellees.
   Bailey, J.

In this case Frank S. Crane and Maurice Bing obtained judgment by confession against John Johnson in an action of forcible detainer for the restitution • of certain demised premises, said judgment being entered under and by virtue of a warrant of attorney in a lease from the plaintiffs to the defendant. Afterward, at the same term of court, the defendant appeared and entered his motion to vacate said judgment, which motion was denied, and the defendant having duly excepted, brings the record to this court by appeal.

It is urged that the lease containing the warrant of attorney was not properly executed, and that for that reason no judgment by confession could be properly entered thereon. In the lease the plaintiffs are named as lessors and the defendant as lessee, and the instrument is executed by the defendant under his hand and seal. It is not signed by the lessors, but in place of their signature there appears the following signature: “A. Krimbill, per G. M. K.” One Krimbill seems to have been the agent who negotiated the lease on the part of the plaintiffs, but it is not pretended that he had any authority to execute, in their name, an instrument under seal. Under the lease thus executed the defendant entered into possession of the demised premises and continued in possession, paying the rent to the plaintiffs or them agents during the entire term of the lease.

As the agent did not in fact execute the lease on behalf of the plaintiffs, and had no power to execute it in their name, his signature to the instrument may be treated as a nullity. But its execution by the defendant under his hand and seal made it his deed, and such execution was all that was necessary to give vitality to the warrant of attorney. We can not see how that portion of the instrument could have received any additional force from the most formal execution of the instrument by the plaintiffs.

The principal ground upon which the defendant’s motion to vacate the judgment was based, was an alleged extension of the defendant’s tenancy by agreement between him and the plaintiffs, and that at the time of the entry of the judgment such tenancy had not expired. Upon the question of fact thus raised, a large number of affidavits were read by the respective parties, the evidence thus presented being very conflicting and contradictory. But it does not appear from the bill of exceptions that all the evidence heard on the motion was preserved in the record.

The bill of exceptions recites that certain specified affidavits were read on the part of the defendant, and certain other affidavits on the part of the plaintiffs, but it nowhere appears, either by direct recital or by implication, that no other evidence by affidavits or otherwise was heard. Such being the case it will be presumed, in support of the judgment of the court below, that sufficient evidence was heard to warrant the court in refusing to vacate the judgment.

But we are inclined to the view that even upon the evidence preserved in the record the court properly denied the defendant’s motion. We do not deem it necessary to analyze the evidence, but content ourselves with saying that the case made by the defendant’s affidavits of a binding contract for an extension of the tenancy is far from being" clear and satisfactory, and that the theory of such extension is successfully met and overthrown by the affidavits presented by the plaintiffs. We see no ground for disturbing the judgment, and it will therefore be affirmed.

Judgment affirmed.


text:
    George Gebbie v. Peter L. Mooney.

      Pleading and Practice — Defective Count — Entire Verdict Valid, if Sustained by One or More Counts — Presumption—Power of Court to Amend Mecord of Term — ■Waiver of Irregularities — Demurrer.
    1. An entire verdict based on several counts of the declaration will not be reversed or set aside on the ground of a defective count, if one or more of the counts is sufficient to sustain it.
    2. In the case presented, wherein there- is no bill of exceptions, it is held: That even if the special count is defective, it will be presumed that the evidence sustained the causes of action alleged in the common counts.
    8. Courts of record have power after the term at which judgment is rendered, upon due notice, to amend their records, so as to correct the errors and mistakes of their officers. Upon such amendment by the court below, it will be presumed, unless the contrary is shown, that the court was in possession of sufficient memoranda or other legal evidence of its actual proceedings to warrant its finding.
    4. A plea which professes to answer the entire cause of action, but only answers a part thereof, is bad on demurrer.
    5. It seems that if the defendant was present and joined in the trial without objection, with a demurrer undisposed of and an additional count unanswered, his action was a waiver of such irregularities.
    [Opinion filed January 26, 1887.]
    Appeal from the Circuit Court of Cook County; the Hon. Lorin C. Collins, Judge, presiding.
    Messrs. Lewis Umlaue and Robert Hervey, for appellant.
    Mr. Joseph Weight, for appellee.
   Bailey, J.

This was an action of assumpsit brought by the appellee against the appellant. The trial before the court and jury resulted in a verdict and judgment in favor of the appellee for $2,500. The record contains no bill of exceptions and therefore the evidence heard at the trial is not before us*

The original declaration consisted of a special count, alleging the non-performance by the appellant of an express contract between the parties and also the common counts. It is urged that the special count presents no cause of action for which a recovery can be had at law. We do not deem it necessary to determine the sufficiency of that count, as the common counts are unquestionably good and are sufficient to sustain the verdict and judgment. Sec. 57 of the Practice Act provides that “ whenever an entire verdict shall be given on several counts, the same shall not be set aside or reversed on the ground of any defective count, if one or more of the counts in the declaration be sufficient to sustain the verdict.” See, also, Bradshaw v. Hubbard, 1 Gilm. 390; Snyder v. Gaither, 3 Scam. 91; North v. Kizer, 72 Ill. 172; Waugh v. Suter, 3 Ill. App. 271; Payne v. Donegan, 9 Ill. App. 566.

It is urged that the cause of action attempted to be alleged in the special count is not one to which the common counts are applicable, and that for that reason those counts should be disregarded. There is no force in the suggestion. If the evidence had been preserved, and if it had appeared that it tended to prove no cause of action for which a recovery could be had under the common counts, those counts doubtless might have been disregarded. -The evidence, however, not being before us, we can not presume that any portion of it was applicable to the special count, but may rest upon the presumption that it proved the causes of action alleged in the common counts and those only.

The defendant filed three pleas, each purporting to answer the entire declaration, viz.: 1, non assumpsit; 2, a special plea alleging a partial failure of the consideration of the contract set out in the special count of the declaration ; 3, a plea of set-off. Issues of fact were duly taken upon the first and third pleas, and to the second plea the plaintiff filed a special demurrer, which was sustained by the court, and the sustaining of said demurrer is assigned for error. Various grounds of demurrer were urged, but one only need be considered. The matters alleged in the plea answered only the special count, while the plea professed to answer the whole declaration. This was a manifest defect in the pleading for which the demurrer was properly sustained. Moir v. Harrington, 22 Ill. 40 ; American Ins. Co. v. Holly, 81 Ill. 353.

Prior to the commencement of the trial, the defendant, by leave of the court, tiled two additional pleas alleging fraud and circumvention in procuring the execution by the defendant of the contract set out in the special count. These pleas also professed to answer the whole declaration, and a demurrer thereto was interposed by the plaintiff. During the progress of the trial the plaintiff, by leave of the court, filed an additional count setting out the same contract alleged in the special count of the original declaration, and a further contract between the parties supplemental thereto, and alleging the non-performance of said contract as modified by the supplemental contract. In ’the original record brought to this court it did not appear that any disposition had been made of the demurrer to the additional pleas, or that any issue had been taken upon the additional count. So far as appeared, however, the trial was entered upon and proceeded to verdict without any objection by the defendant that the demurrer was undisposed of or the count unanswered.

Since the record was brought to this court the plaintiff, after due notice to the attorneys for the defendant, has applied to the cpurt below for the entry by that court, mono pro tumo, of certain orders which it is claimed were omitted by an error of the clerk. From a supplemental record now filed it appears that, in response to said application, the court below, on examining the records in the cause, found that said orders were made by the court, but by an omission of the clerk were not entered upon the record, and the same were ordered to be entered nuno pro tuno, as of the dates at which they were made. From said orders it now appears that the demurrer to the additional pleas was sustained on the same day on which it was filed, which was prior to the trial, and that after filing of the additional count and while the trial was progressing, leave was granted to the defendant, on his motion, to have his pleas filed to the original declaration stand as his pleas to the additional count.

We are of the opinion that, even in the absence of the supplemental record, there was no error of which the defendant can complain. Being present at and joining in the trial without objection, while the demurrer was undisposed of and the additional count unanswered was, as we are inclined to think, a waiver by him of such irregularity. Strohm v. Hayes, 70 Ill. 41, aud authorities cited. But, if this were otherwise, the supplemental record shows that the demurrer was properly disposed of and proper issues formed upon the additional count.

There can be no doubt that courts of record have power? after the term at which judgment is rendered, upon due notice to all persons interested, to amend their records so as to correct the errors and mistakes of their officers and make the record conform to the facts. Coughran v. Gutchens, 18 Ill. 390; Dunham v. South Park Commissioners, 87 Ill. 185. The court found that the orders in question had been made, but had been omitted from the record by the mistake of the clerk. It will be presumed, as the contrary is not shown, that the court was in possession of sufficient memoranda or other legal evidence as to what the actual proceedings in court were, to warrant such finding. It was proper then that an order should be entered making the record speak the truth, and causing it to conform to the proceedings of the court as they actually took place. <

There being no error in the record the judgment will be affirmed.

Judgment affirmed.


text:
    Phœnix Grain and Stock Exchange v. William H. Gleason.

      Jurisdiction — Cases Relating to the Revenue — Sec. 88, Practice Act— Bill for Injunction.

    1. This court has no jurisdiction of an appeal from a decree upon a bill to restrain the collection of taxes.
    2. A proceeding to restrain the collection of taxes is within Sec. 88, Practice Act, as amended June 3, 1879.
    [Opinion filed January 26, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.
    Messrs. Bisbee, Ahrens & Decker, for appellant.
    Messrs. Campbell, Hamilton & Custer, for appellee.
   Bailey, J.

This was a bill in chancery brought by the Phcenix Grain and Stock Exchange against William H. Gleason, Town Collector of the Town of South Chicago, to restrain said collector from levying his tax warrant, issued to him for the collection of the taxes of 1885, upon the property of the complainant, and from taking any steps for the collection of said taxes from the complainant, the bill alleging that the assessment of the complainant’s property upon which said taxes were levied and extended, was irregular and fraudulent. A preliminary injunction having been awarded, the defendant moved on bill, answer and affidavits for a dissolution of said injunction, which motion was sustained, and it being stipulated by the parties that the decision of said motion might be taken as the final hearing of the cause, a decree was entered dismissing the bill for want of equity, at the complainant’s costs. From this decree the complainant has prayed and perfected an appeal to this court.

Section 88 of the act in regard to practice in courts of record, as amended June 3,1879, provides that appeals from and writs of error to Circuit Courts, the Superior Court of Coolc County, etc., “in all cases relating to the revenue,” shall be taken directly to the Supreme Court. It can no.t be doubted that the present suit is a case relating to the revenue within the meaning of said statute, and that this court, therefore, has no jurisdiction of the appeal.

In Webster v. People, 98 Ill. 343, it is held that the word “ revenue,” as used in the statute, embraces all taxes and assessments imposed by public authority, and that appeals from judgments of the County Court for the sale of lands for taxes are to be taken directly to the Supreme Court. In Potwin v. Johnson, 106 Ill. 532, it was held that special assessments levied by the City of Chicago were embraced within the meaning of the term “ revenue ” as used in said statute, and that this court had no jurisdiction of appeals from judgments of the County Court for the sale of lands for such assessments.

In People v. Springer, 106 Ill. 542, the same rule was applied to a judgment for an unjDaid installment of South Park assessments, and in Herhold v. City of Chicago, 106 Ill. 547, to an order of the Superior Court, conferring an assessment of benefits to adjacent property from the opening of a street. To same effect see Schlierbach v. City of Pana, 13 Ill. App. 382.

The foregoing cases differ from the one under consideration in this: those were proceedings for the collection of the revenue while this is a suit to restrain its collection. But they equally relate to the revenue, and if there are errors in the record in this case the exclusive jurisdiction of correcting such errors is given by the statute to the Supreme Court.

The appeal will be dismissed at the costs of the appellant.

Appeal dismissed.


text:
    Rachel Davis v. Sarah Evans.

      Practice — Verdict Based on Conflicting Evidence, Sustained — Set-off— Running Account.

    Where the evidence is conflicting, and it does not appear that the jury were misled or actuated by passion or prejudice, this court will not interfere with the verdict.
    [Opinion filed January 26, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Rollin S. Williamson, Judge, presiding.
    Mr. John Olnet, for appellant.
    Mr. Lincoln Brooke, for appellee.
   Per Curiam.

This was assumpsit brought by Sarah Evans against Rachel Davis upon a promissory note for $300, and certain indebtedness upon an open account. The defendant pleaded non-assumpsit and set-off, said set-off consisting of certain indebtedness upon an open account against the plaintiff. At the trial the jury found the issues for the plaintiff and assessed her damages at $343.50. From this amount she remitted $42.85, and the court thereupon gave judgment in her favor for $300.65 and costs.

The counsel for the appellant raises no question of law, the only proposition urged being that the amount of the judgment is larger than is warranted by the preponderance of the evidence. As to the note and the amount due thereon there is no dispute. The controversy, however, involves a mutual account between the parties running through several years, and as to a considerable portion of which the evidence is conflicting. If the jury believed the evidence introduced by the plaintiff — and we see no reason why they were not warranted in so doing — they were, we think, justified in giving the plaintiff the damages for which the judgment was rendered. We find nothing in the case taking it out of the usual rule that where the evidence is conflicting and there is nothing to show that the jury have been misled or actuated by passion or prejudice, the verdict should be held to be conclusive as to all controverted facts. We are of the opinion that the defendant has had a fair trial, and with the result she must be content. The judgment will be affirmed.

Judgment affirmed.


text:
    E. W. Blatchford and Wm. H. Bradley, Trustees, etc. v. The Chicago Dredging & Dock Company et al. The Chicago Dock & Canal Company v. Same. Marianna A. Ogden et al., Trustees, etc., v. Same.

      Injunctions — What Necessary to Appear Before Court of Equity Will Ch-ant — Riparian Rights — Bills to Restrain Defendants from Excavating Sand in Lalce Michigan in Front of Complainants'' Lands — Evidence.

      1. Substantial and positive injury must always be made to appear to the satisfaction of a court of equity before it will grant an injunction, and where the acts sought to be enjoined are being done under such circumstances that, if not injurious in tendency the complainant has no right to complain, satisfactory proof must be made that said acts have a natural or necessary tendency to produce the injury. When the injury claimed to result from the act appears to be uncertain, contingent, theoretical or possible only, equity will not interfere by injunction.

      2. Upon bills filed by owners of property fronting on Lake Michigan for an injunction to restrain the defendants from excavating or removing sand or other material from the bed of the lake in front of said property, or so contiguous thereto as to interfere with the formation or accretion resulting from the operation of natural causes, it is held: That the evidence does not show that the acts of defendants had a tendency either to prevent accretions upon complainants’ lands, or to cause their shore to be washed away by the action of the waves; and that, in the absence of evidence showing a present injury or impending future injury from the continuance of the defendants’ operations, an injunction was properly denied by the court below.
    [Opinion filed January 26, 1887.]
    Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.
    Statement Per Curiam. By stipulation of the parties the above entitled cases were heard and decided together and the record made in the first entitled case is to be regarded as the record in all, as they relate to the same subject-matter.
    Bills were filed by appellants in the court below alleging that appellants are the owners of certain parcels of land fronting on Lake Michigan; that the frontage represented by all the appellants extends from the Ogden Slip to the middle of the block lying between Huron and Superior streets; that the premises have been held and claimed by appellants for over twenty years; that they are riparian proprietors and are en. titled to all the rights and advantages thereunto appertaining under the law, and amongst others, to such accretions as may be formed upon said land by the continuous and uninterrupted action of natural causes in their influence upon the water and bed of the lake; that during appellants’ ownership large and valuable accretions have formed thereon, and but for the interference of natural causes would continue to form thereon and make valuable additions thereto; that the bed of the lake in front of appellants’ property is composed of sand which is by storms from the north and east disturbed and projected upon said property, forming additions to the same, valuable in themselves, and also as a protection to the property already acquired; that they are entitled to have continued the condition of natural causes operating upon their property; and that no party has or can have a right to obstruct or interfere with said' operation of natural causes; that the bed of -the lake opposite to appellants’ property slopes gradually and regularly eastward from the shore line to a depth of water not exceeding ten or fifteen feet at a half-mile’s distance from said shore line, and that this natural and undisturbed condition affords a protection against the eroding effects of storms; that appellants, are entitled especially against unauthorized encroachments and wrongful acts of other persons, to all such accretions as have already formed upon their land, as well as to such accretions as may hereafter form from the undisturbed operation of natural causes thereon; that appellees are and for several months past have been engaged with dredges, scows and other appliances in excavating and taking away from the bed of Lake Michigan in front and contiguous to appellants’ land, the sand, earth, gravel and other material forming the bed of said lake, and have excavated in the bed of said lake contiguous to appellants’ said premises, trenches some fourteen feet deep and twenty-five feet wide and between from 300 to 1,000 feet from the shore line of said land, and in so doing have taken away 200,000 cubic yards of sand, and still continue to remove sand, etc., and to sell the same for their own profit without license from any competent authority, and against appellants’ protests and in violation of their riparian rights; that said excavations have interfered with the formation of accretions which would otherwise have formed upon appellants’ said land, and that they also seriously endanger the permanency of said land; that appellants have been greatly damaged by the said acts of appellees, and that a continuance of said acts will result in irreparable loss to appellants and that appellants have no adequate remedy, at law. The bill prays for an injunction restraining the defendants from excavating or removing sand or other material from the bed of Lake Michigan in front of appellants’ land or so contiguous thereto as to impede or interfere with the formation or accretion resulting from the operation of natural causes.
    The answers deny that appellants have any rights peculiar to themselves by reason of their ownership of land abutting thereon, over the bed or waters of Lake Michigan, and claim that the bed of said lake up to the shore line is common property ; deny that the taking of sand by defendants has in any way injured or occasioned loss to appellants, and claim that whenever sand has been taken by defendants the accretions forming on appellants’ property have been much more rapid than when sand was not taken; deny that appellants have any right to or interest in the material composing the bed of the lake which may tend, under the influences of the waters of the lake, to form accretions to their property, and insist that so long as the lateral support of appellants’ land is not interfered with they have no cause of action against persons removing sand from the lake bed adjacent thereto ; claim that excavation and removal of sand, etc., from the bed of Lake Michigan is a public right, a benefit to the City of Chicago and to navigation, and deny that defendants’ operations in the removal of sand have had, or can have or will have, any effect upon the shore line either by lessening the accretions thereto or by exposing the land to the action of the elements, or by removing the lateral support of the shore.
    On hearing on bill, answer and proofs, the Circuit Court denied the injunction prayed for and dismissed the bill for want of equity, and the case is brought to this court by appeal.
    Messrs. Johh FT. Jewett & Jewett Brothers, for appellants.
    The court has power, under the circumstances here shown, to exert the equitable remedy of injunction. “ The incompleteness and inadequacy of the legal remedy is the criterion which, under the settled doctrine, determines the right to the equitable remedy of injunction.” Pomeroy’s Equity Jurisprudence, Sec. 1338, also Secs. 1347, 1351; 2 Story’s Equity Jurisprudence, Secs. 918, 925, 928 ; Carlisle v. Cooper, 21 N. J. Eq. 579; Frink v. Lawrence, 20 Conn. 120; Belknap v. Trimble, 3 Paige, 600; Hicks v. Silliman, 93 Ill., 255, 264; Henderson v. N. Y. C. R. R. Co., 78 N. Y. 430.

      Even if appellee’s acts have not been the sole canse of the damage suffered by appellants, still, if they have partially caused said damage, the relief prayed for should have been granted. Vanderburgh v. Truax, 4 Den. 464; Hooksett v. Amoskeag, 44 N. H. 105; Dickinson v. Boyle, 17, Pick. 78; Robinson v. Black Diamond Coal Co., 57 Cal. 412; Hicks v. Silliman, 93 Ill. 255.
    Appellees have no rights in these premises, and are mere trespassers or wrong-doers. This is a material question and the court must take into consideration the fact that appellees are mere trespassers, and can not leave unsettled their claim of right to excavate and appropriate sand as shown. Pollard v. Hagan, 3 How. 212.
    The title to the bed of Lake Michigan opposite the property in question is in the State of Illinois. Griffin v. Gibb, 1 McAll. 212.
    The defense which is attempted to be made to these actions, namely, that the title to the bed of the lake is in the State, whence appellees, as against these appellants, attempt to deduce the theory that the sand therein belongs to any one who chooses to appropriate it, is absurd. Solliday v. Johnson, 38 Pa. St. 380 ; Braxon v. Bressler, 64 Il. 488; Washington Ice Co. v. Shortall, 101 Ill. 46; Lorman v. Benson, 8 Mich. 18; Rice v. Ruddiman, 10 Mich. 125 ; Ryan v. Brown, 18 Mich. 196. See, also, Houck v. Yates, 82 Ill. 179 ; Ensminger v. People, 47 Ill. 384; City of Chicago v. Laffin, 49 Ill. 172.
    Appellants are entitled to the natural flow of the water upon their land, or in other words, upon the facts shown in the testimony, they are entitled to the flow of the water against their land, ubi ourrere solehatj and if the natural condition of the bed of the lake opposite their land affords a protection to their land, they have the right to its continued natural condition.
    A riparian proprietor is entitled to be secured in the enjoyment of the use of the stream as he has heretofore had it, without any sensible and material alteration so as to occasion an actual injury. Shreve v. Voorhees, 3 N. J. Eq. 36; Hulme v. Shreve, 4 N. J. Eq. 125; Brakeley v. Sharp, 10 N. J. Eq. 208-9; Farrell v. Richards, 30 N. J. Eq. 515; Hicks v. Silliman, 93 Ill. 255; St. Helena Water Co. v. Forbes, 62 Cal. 184.
    The riparian right of accretion is a continuing right, and the riparian proprietor has a vested right in future accretions, whether they are the result of natural or artificial causes; in other words, a right of accretion. 2 Blackstone, 261; County of St. Clair v. Lovingston, 23 Wall. 46, 68; Lovingston v. County of St. Clair, 64 Ill. 56.
    Messrs. J. W. Showalter and William Law, Jr., for appeH, lees.
   Per Curiam.

We have examined the evidence in the record on file in the above entitled cases, and after a most careful consideration of it we are unable to conclude that appellants have established that the acts of appellees in dredging and removing sand from the bed of the lake opposite the property of appellants, has injured said property by causing increased erosions of the shore, nor do we think that it is established by the evidence that such dredging and removal of sand has prevented accretions from forming on the shore line of appellants’ property. We do not find it proven that the acts done by the defendants had a tendency to either prevent accretions upon appellants’ land, or to cause their shore to be washed away by the action of the waves. We, therefore, find it unnecessary to enter upon a discussion or determination of the questions at law as to the rights of the appellants and appellees in the premises, which have been so elaborately discussed by counsel. Substantial and positive injury mnst always be made to appear to the satisfaction of a court of equity before it will grant an injunction, and where the acts sought to be enjoined are being done under such circumstances that if not injurious in tendency a party has no right to complain, satisfactory proof must be made that the acts have a natural or necessary tendency to produce the injury. A failure to show injury actually threatened or certainly impending, is as fatal to the right to an injunction as the failure to establish a clear legal right. When the injury to result from the act is shown by the evidence to be uncertain, contingent, theoretical or possible only, equity will not interfere by injunction.

The evidence, in our opinion, failing to show injury in the past, or impending future injury from the continuance of the operations of appellees, the decree of the Circuit Court must be affirmed.

Decree affirmed.


author: Moran, J.

text:
    Frederick G. Waite v. Abraham Kalurisky.

      Accommodation Paper — Want of Consideration — Erroneous Instruction.

    1. The maker of an accommodation note, delivered to the payee to be discounted for his benefit, can not set up want of consideration as a defense against a holder for value.
    2. A judgment, based upon a verdict which from anything that appears may have been reached by the jury because of an erroneous instruction, will be reversed.
    [Opinion filed February 2, 1887.]
    Appeal from the Circuit Court of Cook County; the Hon. Lobin C. Collins, Judge, presiding.
    Statement by Moban, J. This was an action by appellant to recover against appellee upon a note made by appellee to the order of Graff, Abrahamson & Co. The n -te was indorsed by Graff, Abrahamson & Co. and by Kiaus & Mayer. It was shown by the evidence that the note was sued in the name of appellant, who was a clerk in the law office of Kraus & Mayer, but that the note in fact belonged to one Moses Harris, and was put in suit by his attorneys, Kraus & Mayer, and was to be collected for his benefit.

      The defense was that the defendant gave the note to Graff, Abrahamson & Co., as an accommodation note to be discounted by them at the First ¡National Bank; that Harris was present and induced appellee to give the note, he agreeing to protect it and pay it at maturity. Harris claimed that he paid full value for the note. The verdict and judgment were for appellee, and the record is brought to this court by appeal.
    Messrs. Fbahk J. Smith and Frahk A. Helmer, for appellant.
    Mr. George H. Kettelle, for appellee.
   Moran, J.

On the trial the court gave to the jury the following, among other instructions:

“ If the jury believes from the evidence in this case, that the plaintiff was not the legal owner and holder of the note sued upon, and that Moses Harris is the legal owner and holder of the same and had said note sued upon in the name of said plaintiff, and that Graff, Abrahamson & Co., the payees of said note, obtained said note of the defendant as an accommodation note and without consideration, and that said note was assigned to said Moses Harris by said Graff, Abrahamson & Co. with notice and knowledge at the time of such assignment, on the part of said Moses Harris, of the fact that said note was executed and delivered to said Graff, Abrahamson & Co. without consideration, then said Moses Harris took said note subject to the same defense as the defendant could make against the original payees, Graff, Abrahamson & Co., and the plaintiff can not recover in this case, and the jury should find for the defendant.”

One who makes an accommodation note and delivers it to the payee to have it discounted for the payee’s benefit, can not defend against a holder for value, on the ground that no consideration passed between the maker and the payee of the note. The liability of the maker of an accommodation promissory note is the same as that of an accommodation acceptor of a bill of exchange.

If the holder of an accommodation note, who receives it from the payee for value, could be defeated in a suit against the maker on the ground that he knew when he took it that it was accommodation paper, the use and purpose of such paper as understood and acted upon in the commercial world, would be wholly destroyed.

“ The very purpose of making accommodation paper is, that the party favored may dispose of it, and unless restricted he may transfer it either before or after maturity, and the maker will be equally bound. The only safe rule is, that where a bill or note is given with no restriction as to the mode or time of using it by the party accommodated, and the same has been transferred in good faith in the usual course of business, the holder, if he paid a valuable consideration for it, will be entitled to recover the full amount, although he may have had full knowledge it was accommodation paper.” Miller v. Larned, 103 Ill. 562.

It was established by the evidence that the note was accommodation paper, and there was evidence strongly tending to show that Harris knew that it was such, but there was also evidence tending to show that he took it from the payees for value, discounting it with other paper. Appellant was entitled to have the law given to the jury correctly on the hypothesis supposed in the instruction. If, as appellee contends, Harris induced the giving of the note and agreed to protect it, he could have had the jury correctly instructed on that theory. Undoubtedly, if such was the fact, appellant would not be entitled to recover. But a verdict, which for anything we can see, may have been reached by the jury on the theory of fact supposed in an instruction where the law is erroneously given, can not stand. Bor the error in giving the instruction above set out, the judgment must be reversed and the case remanded.

Reversed and remanded.


text:
    William H. Horn v. O. T. Booth et al., for use, etc.

      Garnishment — Assignment of Indebtedness — Rights of Assignee, Protected — Evidence—Date of Instrument as Prima Facie Evidence.

    1. In garnishee proceedings courts of law will notice and protect the interests of equitable owners of choses in action.
    2. Where the indebtedness sought to be reached by garnishee process has been as-igned in good faith for a valuable consideration prior to the service thereof, the rights of the assignee will be protected.
    3. In the case presented in the absence of evidence to impeach the consideration of good faith of the transaction, the assignment is held to be a valid transfer of the indebtedness sufficient to vest an equitable title thereto in the assignees. It is also held: That the evidence shows the assignment to have been prior in time to the service of the attachment writs; that the declarations of the assignors concerning the assignment are competent evidence against the attaching creditors; and that the burden of showing that the assignment was subsequent to the service of the attachment writs, was on the attachment creditors.
    4. The date of an instrument is only prima facie evidence of the time of its execution.
    [Opinion filed February 2, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Mr. Wm. T. -Blais, for appellant.
    Mr. Henry Magee, for appellees.
   Bailey, J.

On the 12th day of October, 1885, two attachment suits were brought in the Superior Court against O. T. Booth and another, composing the firm of O. T. Booth & Co., non-resident debtors, one by Jacob Johnson and the other by Sievert T. Gunderson and another, and in both suits William H. Horn was summoned as garnishee: Judgments having been recovered in both suits against the principal debtors, viz., in the Johnson case for $455 and costs,' and in the Gunderson case for §205 and costs; and the garnishee having answered, the attachment creditors traversed his answer in the mode prescribed by the statute, and both suits coming on to be heard together on the issues thus formed, before the court without a jury, the court found said issues in favor of said creditors, and found that at the time of the service of the writ of garnishment said garnishee was indebted to Booth & Co. in the sum of §483, and judgment for that sum was thereupon rendered against said garnishee in favor of said Booth & Co. for the use of said creditors, and said money was ordered to be distributed to said creditors in proportion to the amount of their respective judgments. From this judgment the garnishee has appealed to this court.

The indebtedness, upon which said judgment against the garnishee was rendered, was for a cargo of wood shipped by Booth & Co., from Charlevoix, Michigan, to the garnishee at 'Chicago, a short time prior to the commencement of the attachment suits. The question is whether said indebtedness had been assigned by Booth & Co., to the firm of Curtis, Watehel & Co., of Petosky, Michigan, prior to the service of the attachment writ on the garnishee.

The answer of the garnishee, which was the same in both cases, denied the possession by the garnishee of any lands, tenements, goods, chattels, moneys, rights, credits, property or effects belonging to said Booth & Co., and also denied that the garnishee, at the date of the service of the writ, was indebted to said Booth & Co. in any sum. A negative answer was given to all the interrogatories except the following:

“Did you not receive and sell for O. T. Booth & Co. a cargo of wood, and how much did you receive for the same, and what was the balance in your hands due O. T. Booth & Co.? ” To this interrogative the following answer was given: “ That on October 11, 1885, he received notice from O. T. Booth & Co. that they had shipped to him a cargo of wood, 161 cords, 4 ft., at §3 per cord, amounting to $483, on the schooner Cuyahoga, for which her captain had refused to pay; that they had transferred their interest in the cargo to other parties who would draw for the same, to which he answered that he would pay the drafts, and on the following day a bill of said wood, assigned to Curtis, Watchel & Co., of Petosky, Michigan, and a draft for $-183 was sent by said Curtis, Watch el & Co. to said W. H. Horn for payment, but which he refused to pay, having been served with the writ in this case before the draft was presented, but after he had agreed as aforesaid to pay the same.”

The evidence shows that a few days prior to the service of the attachment writ, Johnson, the plaintiff in one of the attachment suits, sent the schooner Cuyahoga, of which he was the owner, to the port on Lake Michigan from which Booth & Co. were shipping wood, for a cargo of wood to be delivered to him under contract which he then had with Booth & Co.; that on the arrival of the vessel at said port, Booth & Co. refused to deliver said wood, which fact was communicated to Johnson by the master of said vessel by telegraph ; that after the vessel had endeavored to obtain a cargo elsewhere, and failed, Johnson called on Horn, the garnishee, in Chicago, and asked him to allow the vessel to be sent to Booth & Co. for a cargo of wood on his account. Horn informed Johnson that by the terms of his contract with Booth & Co. the wood was to be paid for on delivery, and that in order to obtain the cargo on his account it would be necessary to pay for it, as Booth & Co. would not let it go on any other terms. Johnson replied that his captain had the money and he would instruct him to pay for it. On this arrangement Horn consented to have the vessel take a cargo from Booth & Go. for him, and requested Booth & Co. by telegraph to load the Cuyahoga on his account, and that the captain would pay him for it. Hpon this order Booth & Co. delivered to said captain a cargo of wood which was placed on board the vessel, but the captain, after getting the cargo into his possession, sailed away without paying for it. On the morning of October 12, 1885, Horn received a telegram from Booth, dated October 11th, as follows:

Cuyahoga loaded and gone; captain refused to pay; have transferred our interest in cargo to other parties who will draw for same. Will write. Answer.”

A letter of the same date written by Booth & Co. to Horn, and. received a day or two later, repeated substantially the same statements contained in the telegram, and, at about half past 10 o’clock in the forenoon of October.12th, Horn telegraphed Booth & Co., as follows: Message received. Will pay draft. Wire when other vessels get loaded.” After this telegram was sent, and at a little after noon of the same day, the attachment writs were served on Horn. A day or two later a draft for §483, the price of the cargo of wood, dated October 12, 1885, drawn on Horn by Curtis, Watchel & Co., payable to their own order and by them duly indorsed, was presented to said Horn for payment by a messenger of a Chicago bank, said draft being accompanied by an assignment of the account for said cargo dated October 12,1885, executed by O. T. Booth & Co. to said Curtis, Watchel & Co., but in consequence of the previous service on him of the attachment writ Horn refused to honor the draft, and the same was protested.

In garnishee proceedings courts of law will notice and protect the interests of equitable owners of dioses in action. Hodson v. McConnell, 12 Ill. 170; Carr v. Waugh, 28 Ill. 418; Dehner v. Helmbacher F. & R. M., 7 Ill. App. 47; Sheldon v. Hinton, 6 Ill. App. 216. If, then, the indebtedness sought to be reached in this case by process of garnishmént was assigned by Booth & Co. to Curtis, Watchel & Co. in good faith and for a valuable consideration prior to the service of the attachment writ on Horn, it was not subject to garnishment at the suit of Booth & Co.’s creditors. The assignment which was offered in evidence recites a consideration and was properly executed, and purports to assign, transfer and set over said indebtedness to said Curtis, Watchel & Co. Ho evidence was offered impeaching the consideration or good faith of the transaction. It must then be held, under the rule laid down in Sheldon v. Hinton, supra, and the authorities there cited, to be a valid assignment of said indebtedness, sufficient to vest an equitable title thereto in the assignees.

The more difficult question in the case is, whether, under the pleadings and evidence, the service of the attachment writs or the execution of the assignment should he deemed to be prior in point of time. The assignment bears date October 12th, and the attachment writs were served that day at or shortly after noon. But we think the evidence tends to show that the assignment was executed first. The evidence on that point consists of the declarations of Booth & Co. in their telegram and letter of October lltli. Those declarations were made before the service of the writs, and before the attachment creditors had acquired any lien. Such declarations are evidence against Booth & Co., the real plaintiffs in the garnishee suits, and they are also competent as against the attachment creditors who are seeking to enforce a subsequently acquired lien on Booth & Co.’s interest in the indebtedness from Horn.

Booth & Co.’s declarations in both their telegram and letter were to the effect that they had then assigned said indebtedness to parties who would draw on Horn for the amount due. The assignees were not named, it is true, but said declarations being followed by a draft drawn the next day by Curtis, Watchel & Co. with Booth & Co.’s assignment of the claim attached, leaves no doubt as to the identity of the assignees referred to, in the absence of evidence of any attempts by Booth & Go. tó transfer the claim to any other assignees-

But it is argued that the assignment to Curtis, Watchel & Co. being dated October 12th, must be deemed to be another and different assignment from the one referred to in Booth & Co.’s telegram and letter. Such conclusion does not necessarily follow. The date of an instrument is only prwna facie evidence of the time of its execution, and it may be shown by evidence aliunde that such instrument was in fact executed and delivered on another day either before or after the day of its date. It being assumed that Curtis, Watchel & Co. were the assignees referred to by Booth & Go. in their telegram and letter, as we think, under the evidence, it must be, the declarations of Booth & Co. tend very strongly to show that the assignment, though dated October 12th, was in fact executed the day previous.

But there is another view to be taken of the case which leads to the same conclusion. The answer of the garnishee denies all indebtedness to Booth & Co. The answer to the specific interrogatory in relation to the cargo of wood, though inartificially drawn, was manifestly intended as an admission of the purchase of the cargo of wood from. Booth & Go., thereby charging himself as garnishee, coupled with an averment of an assignment of the account by Booth & Go. prior to the service of the writ, thereby "discharging himself. If the creditors had deemed the answer insufficient, they might have demurred to it, and thus obtained a further answer. Meadowcroft v. Agnew, 89 Ill. 469. They did not see fit to do that, but by taking issue admitted its insufficiency to discharge the garnishee. They thereby took upon themselves the burden of disproving the facts which constituted such discharge. The sworn answer of a garnishee must be taken as true until overcome by evidence. Laschear v. White, 88 Ill. 43; I. C. R. R. Co. v. Cobb, 48 Ill. 402; Truitt v. Griffin, 61 Ill. 26. The burden of proof being on the creditors, it was for them to show that the assignment was subsequent to the service of the attachment writs. JSTo such proof being made, it will be assumed, as against them, that the contrary is the fact.

We are of the opinion, then, that the finding of the court is unsupported by the evidence, and for that reason the judgment will be reversed and the cause remanded.

Judgment reversed.