text:
    Charles E. Bowers, Appellant, v. M. F. Dunlap, Appellee.
    1. Pleading, § 279

      —amendment of plea to jurisdiction. A plea to the jurisdiction is always amendable.
    2. Judgment, § 5*—when jurisdiction over defendant not residing in county is lost. A party cannot begin a suit in chancery in which the jurisdiction is properly at law, make a resident of the county where the suit is brought a defendant for the purpose of obtaining jurisdiction of the persons of nonresidents of the county as codefendants, and thereby force parties to appear and defend, and then by changing the cause of action to a suit at law and voluntarily dismissing as to all but a nonresident defendant, over' whom jurisdiction could not be obtained in the suit at law, in that manner give a court of law jurisdiction over the person of the sole nonresident against his objection.
    Appeal from the Circuit Court of Adams county; the Hon. Albert Aicers, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed July 14, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Walter H. Bennett and John E. Wall, for appellant.
    Bellatti, Bellatti & Moriarty, for appellee.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

Charles E. Bowers, a resident of Adams county, filed a bill in chancery in the Circuit Court of that county to the October term, 1915, against S. T. Erixon, C. E. Deleplain and M. F. Dunlap, praying for an accounting of goods and merchandise received by Dunlap on a real estate deal, which was alleged to have been negotiated by complainant under an agreement by which complainant was to receive as his compensation a certain percentage of a portion of the goods and merchandise taken by Dunlap in the trade. Deleplain was also a resident of Adams county and was served with summons by the sheriff of that county. Dunlap and Erixon are residents of Morgan county and were served with summons in that county and neither of them was found in Adams county.

The defendants filed their several demurrers to the bill, asserting that complainant had an adequate remedy at law and that a court of chancery did not have jurisdiction. The demurrers were sustained. On motion of complainant the suit was, in pursuance of section 40 of the -Practice Act (J. & A. ¶ 8577), transferred to the law side of the docket, and at the March term of court the complainant filed a declaration in assumpsit against Dunlap alone. The other defendants in the chancery suit were in that manner dismissed out of the case.

The defendant Dunlap filed a plea to the jurisdiction of the Circuit Court of Adams county, setting up that at the time of the commencement of the suit he was a resident of Morgan county and was served with process in Morgan county. To this plea a general demurrer was sustained.

The defendant then by leave of the court filed an additional plea to the jurisdiction, setting up that at the time of the commencement of the action the defendant was and from thence hitherto has been and still is a resident of Morgan county, Illinois, and not of the county of Adams, and that he was not found or served with process in said action in the county of Adams, but was found and served with process in the county of Morgan, and avers that since the transferring of the cause from the chancery docket to the law docket the plaintiff has dismissed his action as to all defendants who resided within said county of Adams and all defendants who were served with process in said county of Adams, namely, as to O. E. Delaplain and S. T. Erixon, and this he is ready to verify; wherefore he prays judgment, if the court will take further cognizance, etc.

■ The plaintiff filed a demurrer to this plea which was overruled and the plaintiff abiding by his demurrer, judgment was rendered in favor of the defendant that plaintiff take nothing by his writ and go hence, etc. The plaintiff appeals.

The contention of appellant is that because the appellee appeared generally in the chancery suit and filed a demurrer that the court acquired jurisdiction of his person for all purposes of the suit. In the chancery suit the court had jurisdiction of the person of the defendant for the reason there was a resident defendant served with process in Adams county. Section 6 of the Practice Act (J. & A. ¶ 8543) provides: “It shall not be lawful for any plaintiff to sue any defendant out of the county where the latter resides or may be found, except in local actions, and except that in every species of personal actions in law where there is more than one defendant, the plaintiff commencing his action where either of them resides may have his writ or writs issued directed to any county or counties where the other defendant, or either of them, may be found: Provided, that if a verdict shall not be found or judgment rendered against the defendant or defendants, resident in the county where the action is commenced, judgment shall not be rendered against those defendants who do not reside in the county, unless they appear and defend the action, nor then if the action is dismissed as to the defendant or defendants resident in the county. Actions against a railroad or bridge company may be brought in the county where its principal office is located, or in the county where the cause of action accrued, or in any county into or through which its road or bridge may run. ’ ’

The suit was dismissed as to "the resident defendants and defendants served' with process in Adams county. The action is not a local action and there is only one defendant who is, and was, a resident of Morgan county, and he was not found in Adams county. Filing a declaration against one person, when a former declaration has been filed against two persons, is a dismissal as to the others. The first appearance of the defendant after the suit had been dismissed as to all the parties, except himself, was by filing a plea to the jurisdiction. A demurrer was sustained to that plea but such pleas are amendable. Drake v. Drake, 83 Ill. 526; Midland Pac. R. Co. v. McDermid, 91 Ill. 170; Spencer v. Aetna Indemnity Co., 231 Ill. 82; American Spirits Mfg. Co. v. Peoria Belt Ry. Co., 154 Ill. App. 330. The question is can a party begin a suit in chancery in a matter in which the jurisdiction is properly at law, and make a resident of the county where the suit is brought a defendant, for the purpose of obtaining jurisdiction of the person of nonresidents of the county as codefendants, and thereby force parties to appear and defend, and then by changing the cause of action to a suit at law and dismissing as to all but a nonresident defendant, over whom jurisdiction could not be obtained in the suit at law, in that manner give a court of law jurisdiction over the person of the sole nonresident defendant against the objection of the nonresident? Section 6 of the Practice Act (J. & A. ¶ 8543) may not be nullified by a plaintiff beginning a suit in a court that does not have jurisdiction of the subject-matter, but has jurisdiction of the persons because there is a resident defendant, and then by transferring the suit to a court that has jurisdiction of the subject-matter but not of a nonresident defendant unless there is a resident defendant also. Courts are established to administer justice under the law and not to assist in the perpetration of fraud. The plea sets forth a defense to the jurisdiction under said section 6 of the Practice Act. Counsel for appellant state that the resident defendants were proper and necessary parties in the chancery suit on the theory presented by the bill, but they were improper parties in the common-law action, and that they might have been retained as parties until the court rendered judgment. The statute, as amended in 1907, expressly provides: “That judgment shall not be rendered against those defendants who do not reside in the county, unless they appear and defend the action, nor then if the action is dismissed as to the defendant or defendants resident in the county. ’ ’ The dismissal here was by the voluntary action of plaintiff. What would have been the situation if the dismissal had been by the judgment of the court is not before this court. The demurrer was properly overruled, and the judgment is affirmed.,

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Thompson

license: Public Domain

text:
    Jesse Crowder, Appellee, v. William Emery, Appellant.
    1. Roads and bridges, § 220

      —when highway commissioner is not liable for damage due to failure to barricade or light highway. A highway commissioner who makes a contract for the construction of a culvert across a highway, under instructions by the whole board, is not liable for the loss of a horse and damage to a buggy due to the horse falling into the unfilled excavation over the culvert at night and running away and colliding with another buggy, where there is no evidence tending to show any wilful negligence on his part or that he knew that barricades were not placed across the highway or that danger signals were not displayed during the nighttime to warn travelers of the condition of the road.
    2. Master and servant, § 854*—when employer is not liable to third parties for negligence of independent contractor. An employer is not liable to third parties for injury caused by the negligence of an independent contractor where the work is not intrinsically dangerous.
    Appeal from the Circuit Court of Christian county; the Hon. William B. Wright, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed with finding of facts.
    Opinion filed July 14, 1917.
    • A. J. Steidley, for appellant; J. 0. Willard, of counsel.
    McQuigg & Dowell, for appellee.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is an appeal by William Emery from a judgment against him for $140 in favor of Jesse Crowder. The suit was begun by appellee before a justice of the peace against Amos Culbertson and appellant to recover damages for injury to personal property. The summons was served on appellant only and he not appearing on the return day, judgment was rendered against him and a scire facias issued against Culbertson to make him a party to the judgment. Before the return of the scire facias, appellant perfected an appeal to the Circuit Court.

The evidence shows that appellant was, in 1915, one of the highway commissioners of the township of Oconee in Shelby county, Illinois, and that in the fall of 1915, the commissioners of highways of that township were having several concrete culverts built across the public highways. The commissioners had divided the township into three districts, of the most northerly of which appellant had charge. In the latter part of November, after being authorized at a meeting of all the commissioners, appellant made a contract with Culbertson to tear out an old culvert, construct a conCrete one and then fill up over it with earth across a highway in the territory under his care at a certain price per cubic yard. This culvert was about three-quarters of a mile from the residence of appellee and six miles from that of appellant.

Culbertson, under this contract, in the early days of December, removed the old culvert and put in a new concrete one, the top of which was about two feet below the level of the road. In excavating for the culvert, the earth had been thrown up on each side of the culvert across the road and a driveway was used around one end of the culvert. The evidence shows that the contractor did not put up any danger signal or obstructions to prevent people driving along this highway. On the night of December 10th, after the conCrete work had been completed, and before the contractor had filled the excavation with earth, a son of appellee, about eighteen years of age, with some young girls, went to a box supper at a schoolhouse, in a one-horse buggy owned by appellee over another road, and in returning over the road in which the new culvert was, after ten o ’clock when it was very dark, drove the horse over the pile of dirt and into the unfilled excavation over the culvert. The horse fell down and broke away from the buggy. It then ran back over the highway and collided with another buggy. It was so' injured that it died, and the judgment was rendered for the damages sustained from such loss of the horse and the injury to the buggy.

It is contended that the court erred in refusing to give to the jury a peremptory instruction to find for the appellant, requested at the close of the evidence for appellee, and renewed at the close of all the evidence. It is insisted that appellant is not liable for the damages because (1) the only connection he had with the construction of the culvert was as a highway commissioner; and (2) that Culbertson was an independent contractor in building the bridge, for whose negligence appellant is not liable.

Appellant had no personal interest in the contract. His only interest was as a commissioner of highways. There is no evidence whatever tending to show any wilful negligence on his part or that he knew that barricades were not placed across the highway or that danger signals were not displayed during the nighttime to warn travelers of the condition of the road. He made a contract for the township in his official capacity after bids had been submitted to the commissioners as a board, and the board had instructed him to let the contract to Culbertson.

In Nagle v. Wakey, 161 Ill. 387, which was a suit to recover damages from the defendants personally because they had, as commissioners of highways, negligently failed to place a railing on a bridge built by them, the rule is announced that commissioners of highways who have in good faith and to the best of their ability expended the means at their command are not personally liable for negligence as commissioners. In Hollenbeck v. Winnebago County, 95 Ill. 148, it was held that a building committee of the supervisors and the county were not liable for mere negligence in the erection of a county building. In Kennedy v. McGovern, 246 Ill. 497, a statute, making commissioners of highways in counties not under township organization personally responsible for damages sustained by reason of their neglect to keep the roads and bridges of their district in good repair, was held unconstitutional, and a judgment denying the right to a recovery for damages because of negligence in failing to keep a road in repair was sustained. The opinion states: “It is conceded that there can be no recovery on the declaration unless under the amendment to section 51 as above quoted; that prior to said amendment the declaration herein would not have been good against the highway commissioners in any county, whether under township organization or not under township organization, and that it would not be good now against the highway commissioners in a county under township organization. * * * . The commissioners in both classes of counties have the same general responsibilities, and no liability for injury because of neglect to keep the highways’ in repair should be imposed upon one class that is not imposed upon the other. In a county not under township organization persons injured on the highway might, under this amendment, recover damages for such injuries from the commissioners of highways, when under exactly similar circumstances persons injured on this same highway but just across the county line, in a county under township organization, could not recover.” From this statement of the law,'it necessarily follows that the rule announced in Nagle v. Wakey, supra, that commissioners are not personally liable for negligence that is not wilful, has not been modified. The same rule is announced in Pearl v. King, 179 Ill. App. 562, Huffstutt ler v. Crabtree, 197 Ill. App. 191. Appellant cites Van Middlesworth v. Hill, 161 Ill. App. 592, an opinion of this court, as announcing a different rule. The question involved in that case was the validity of a declaration, which averred that the commissioners negligently and wilfully for more than sixty days neglected to repair a bridge which was in a rotten, unsafe and dangerous condition, when they had full knowledge of its dangerous condition, whereby damages had been sustained. There is no proof of knowledge of the lack of warning of the condition or of wilfulness of the appellant in this case, hence the opinion in that case does not sustain the contention of appellee.

The evidence also shows that Culbertson was an independent contractor and does not show that appellant had any control over the contractor in the manner of doing the work. An employer or principal is not liable to third parties for injury caused by the negligence of an independent contractor where the work is not intrinsically dangerous. (Foster v. Wadsworth-Howland Co., 168 Ill. 514; Rosenbaum Bros. v. Devine, 271 Ill. 354.) Hence appellant is not liable for the negligence of Culbertson.

We conclude that the appellant is not liable for the damages sustained by appellee for the reason that a commissioner of highways is not liable for mere neglect without wilfulness on his part or knowledge of a dangerous condition caused by repairing the bridges in his town, and also for the reason that the - work was under the control of an independent contractor. The judgment is reversed with a finding of facts.

Reversed until a finding of facts.

Finding of facts. The appellant was not guilty of wilful negligence, and the work was being done by an independent contractor.


text:
    Harley J. White, Appellant, v. Margaret Holden et al., Appellees.
    1. Landlord and tenant, § 43

      —when lease is void. A lease of premises for use as a house of ill fame with knowledge of the use to be made of the building is void as against public policy and under section 57 of the Criminal Code (J. & A. U 3591).
    2. Landlord and tenant, § 43*—when landlord cannot recover on covenants of lease of premises for immoral purposes. A tenant leasing premises for immoral purposes is not bound by the terms of the lease, where the landlord has knowledge of the use to which the premises are to be put, and the landlord cannot recover under the covenants in the lease.
    3. Appeal and error, § 1886*—what damages are recoverable on appeal bond conditioned upon payment of rent. Recovery may be had by a landlord knowingly leasing premises for immoral premises on an appeal bond given in forcible entry and detainer proceedings, conditioned upon the payment of all rent due or to become due until the final determination of the action, but his recovery, where he canceled the lease, is limited to the value of the premises for any lawful purpose.
    4. Appeal and error, § 1401*—when verdict not disturbed. The verdict of a jury approved by a trial court will not be disturbed where the evidence sustains the verdict.
    5. Evidence, §. 430*—when qualification of experts as to value of property for renting is established. The qualification of witnesses as experts relative to the rental value for ordinary purposes of a house leased for the purpose of prostitution, and in a poor situation for other than such purposes, is established where it appears that two of the witnesses were real estate men, one of whom had been engaged in leasing premises for nine years and the other for eighteen years in the city, and knew the property and its surroundings, and another was a white slave officer, a lawyer who had lived in the city for twenty years and knew the property.
    6. Appeal and error, § 1885*—when instruction on determination of rental value of premises in action on appeal bond is not erroneous. In an action on an appeal bond given in forcible entry and detainer proceedings against a lessee using the premises for purpose of prostitution, conditioned on the payment of rent accruing until the final determination on appeal, an instruction on behalf of defendant that if they believed the lease was entered into by Both parties for the purpose of running a house of ill fame, then the amount of rent provided in the lease was not conclusive But the measure of damages was the reasonable value of the premises for the time they were withheld, held not objectionable as ignoring the original leasing, where the jury were informed in an instruction given for plaintiff that they should consider the lease in connection with the other evidence in determining the rental value of the premises.
    7. Appeal and ebbor, § 1885*—when instruction in action on appeal bond conditioned on payment of rent is not misleading. In an action on an appeal bond given in forcible entry and detainer proceedings against a lessee using the premises for immoral purposes, conditioned on the payment of rent accruing until the final determination on appeal, an instruction on behalf of defendant that the only point in controversy was the amount of rent due plaintiff under the condition of the bond regarding the payment of rent, held not misleading, where plaintiff conceded that the costs were paid and he made no claim except for rent.
    8. Appeal and error, § 1885*—when instruction in action on appeal bond conditioned on payment of rent does not invade province of jury. In an action on appeal bond given in forcible entry and detainer proceedings against a lessee using the premises for immoral purposes, conditioned on the payment of rent accruing until the final determination on appeal an instruction on behalf of defendant that before' plaintiff could recover he must prove by a preponderance of evidence that the premises had a rental value for legitimate purposes during the time they were withheld, and, if such proof was not made, a verdict should be returned for defendants, held not objectionable as conveying an inference that the court was of the opinion that the invalidity of the lease had been established instead of leaving it to the jury to determine and did not limit the jury to the character of the invalidity to be considered, especially where two other instructions defined the invalidity involved.
    9. Instructions, § 159*—consideration as a series. Instructions must be considered as á series.
    10. New trial, § 3

      —when not ■ granted. The courts will not grant a new trial merely to permit a party to recover nominal damages.
    Appeal from the Circuit Court of McLean county; the Hon. Sain Weltt, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed July 14, 1917.

      M. A. Brennan and Sterling, Livingston & Whitmore, for appellant.
    Murray & Morrissey and Costigan & Wollrab, for appellees.

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

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

Harley J. White began a suit in forcible entry and detainer before a justice of the peace against Margaret Holden to recover possession of certain property in the City of Bloomington, and on November 21,1.914, on an appeal to the Circuit Court, recovered a judgment for the possession of the property. The defendant perfected an appeal to this court and gave a bond in the sum of $1,000. That judgment was affirmed in October, 1915. In January, 1916, White began this suit in debt on the appeal bond to recover rent on the property for the possession of which he had recovered a judgment in November, 1914, but the possession of which defendant Holden had retained from July, 1914, until December, 1915, without paying any rent. The bond contained the usual condition that Holden “would prosecute said appeal with effect, pay all rent due or that may become due until the final determination of said appeal, pay all damages and loss which plaintiff may sustain by reason of withholding the premises in controversy,” together with all costs, etc. The breaches of the bond alleged are the failure to prosecute said appeal with effect and to pay the rent that accrued during the pendency of the forcible entry and detainer suit. The defendants filed pleas of non est factum, performance and set-off of $169.37. A jury returned a verdict finding the issues in favor of the defendants, on which judgment was rendered and from which judgment plaintiff prosecutes this appeal;

The appellant in June, 1913, by a written lease rented a cottage containing a parlor and eight rooms-, a bathroom, a basement and an attic, to appellee Holden, under the name of Anna Gilmore, in the City of Bloomington, for two years from August 1, 1913, at a rental of $150 a month payable monthly in advance. The appellant began the forcible entry and detainer suit “for the reason that the premises are not used for legitimate purposes.” The evidence shows that appellee Holden, for several years before, and at the time of the making of the lease, was an inmate of a house Of prostitution, and that Bloomington had a segregated district, which, at the time of making the lease and down to the time appellee Holden vacated the cottage, was under the supervision of an officer in the Department of Justice of the United States, usually known as the government white slave officer. The appellant went to appellee in a house of prostitution to negotiate for the lease that he made to her of the cottage, which he was then building between two other houses of ill fame, that were owned by him, and across the street from which were other sporting houses. From all the evidence in the case there is no doubt of the fact that the lease between the parties was made with the knowledge of appellant that it was to be used for the purpose of keeping a house of ill fame, and the appellant does not deny that that was the purpose of the lease.

It is stipulated that appellee had paid all costs occasioned by the appeal and that the only damages sought to be recovered are for rent of the seventeen months that appellee occupied the cottage prior to the affirmance of the forcible entry and detainer case by this court. The only evidence introduced by appellant concerning the damages from loss of rent was the lease and that no rent had been paid after the bond sued on was given. The appellee proved by the white slave officer and two real estate men that the cottage, because of its surroundings, had no rental value for any legitimate purpose.

Appellant having knowingly leased the cottage for use as a house of ill fame, the lease is void for any purpose both because of public policy and the statute. (Section 57 of the Criminal Code, J. & A. ¶ 3591.) The appellee was not bound by the terms of the lease and appellant could not recover under the covenants of the lease. Fields v. Brown, 188 Ill. 111; note to Harbison v. Shirley, 19 L. R. A. (N. S.) 662 [139 Iowa 605]; Harris v. McDonald, 79 Ill. App. 638; McDonald v. Tree, 69 Ill. App. 134.

This suit is not on the lease but on the bond to recover damages sustained because of nonpayment of rent. The appellant having canceled the lease, which was made for an illegal purpose and void, he was entitled to recover on the bond the rental value of the premises for any legitimate purpose. The proof showed it had no rental value for any lawful purpose because of its situation. This court will not interfere with the verdict of a jury approved by the trial court where the evidence sustains the verdict.

It is urged that the court erred in the admission of evidence offered by appellee concerning the rental value of the premises because the witnesses did not qualify as experts. Two of the witnesses are real estate men, who had been engaged in leasing property in Bloomington, one for nine years and the other for eighteen years, and knew the property and its surroundings. The third witness is the white slave officer, a lawyer who had practiced in Bloomington twenty years and knew the property, and no objection was made to his evidence on that question. There is no error in the rulings on evidence.

The court at the request of appellee, in instruction B, informed the jury that if they believed the lease was entered into by both the parties for the purpose of running a house of ill fame, then the amount of rent provided in said lease is not conclusive on the defendant, but the measure of damages, if the jury found for the plaintiff, is the reasonable rental value for legitimate purposes of the premises in question for the time they were withheld. It is said this instruction ignores the original leasing. The jury were told at the request of appellant that they should consider the lease in connection with all the other evidence in the case in determining the rental value of the premises. There was no error against appellant in the instructions as to the evidence to be considered on the measure of damages.

Appellant also argues that instruction A erroneously told the jury that the only point in controversy was the amount of rent due appellant from appellees under the condition of the bond regarding the payment of rent, and that this instruction misled the jury. Appellant concedes the costs had been paid and makes no claim for anything other than rent. The jury could not be misled by the instruction. It is also argued that instruction K is erroneous. It told the jury that if they believed the lease offered in evidence was invalid, then before appellant is entitled to recover he must prove by a preponderance of the evidence that the premises had a rental value for legitimate purposes during the time they were withheld, and if the appellant had failed to make such proof the verdict should be for appellees. It is said this instruction conveys an inference, at least, that the court was of the opinion that the invalidity of the lease had been established instead of leaving it to the jury to determine, and did not limit the jury as to the character of the invalidity to be considered. Instructions B and C define the invalidity involved, and the instruction complained of left it to the jury to find from the evidence whether the invalidity as defined had been proved. The instructions were given and are to be considered as a series, and there is no error in the instructions.

It is also argued that the court erred in refusing to give two instructions which state that the rent stipulated in the lease was the measure of damages that the plaintiff was entitled to recover. What has been said on the merits of the case fully answers this contention.

Appellant was entitled to nominal damages because the appeal was not prosecuted with effect, if there had not been evidence tending to show appellee Holden was entitled to a set-off. The rule is settled in this State, however, that courts will not grant á new trial merely to permit a party to recover nominal damages. Comstock v. Broeseau, 65 Ill. 207; People v. Petrie, 191 Ill. 497. There is no reversible error in the case and the judgment is affirmed.

Affirmed.


text:
    Joseph Wallace, Appellee, v. C. E. Lawson et al., Appellants.
    (Not to he reported in full.)
    Appeal from the County Court of Coles county; the Hon. John P. Habrah, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded.
    Opinion filed July 14, 1917.
    Statement of the Case.
    Action in replevin before a police magistrate by Joseph Wallace, plaintiff, against C. E. Lawson, James Jenkins and William Smith, defendants, to recover a consignment of whisky claimed to have been wrongfully taken by the defendants. On the trial a judgment was rendered against defendants for $108.90. An appeal was prayed to the County Court and a bond given for $150, the amount fixed by the magistrate. From the allowance of a motion dismissing the appeal at defendants’ costs, defendants appeal.
    Abstract of the Decision.
    1. Justices of the peace, § 190

      —what is proper amount of appeal bond. An appeal bond given on appeal from a judgment of a police magistrate should be fixed at double the amount of the judgment and costs.
    2. Justices of the peace, § 190*—when appellants should not be prejudiced by deficiency in appeal bond. Where a police magistrate improperly fixes the amount of an appeal bond at less than twice the amount of the judgment, the appellants should not be prejudiced by such deficiency in the bond provided they are willing, when objection is made, to remedy the defect.
    3. Justices of the peace, § 194*—what is proper practice where appeal bond is adjudged insufficient. The proper practice, where an appeal bond given on an appeal from a judgment of a justice of the peace is adjudged insufficient, is to enter a rule against the appellant that unless he executes and files a sufficient bond on a day to be waived, the appeal will be dismissed.
    4. Appeal and error, § 566*—non-necessity of exceptions. An exception to an order dismissing an appeal is unnecessary.
    Raymond G. Real, for appellants.
    T. N. Cofer, for appellee.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.


text:
    Springfield Gas & Electric Company, Appellant, v. City of Springfield, Willis J. Spaulding and James E. Dalby, Appellees.
    1. Appeal and error, § 309

      —what order is not appealable. An interlocutory order dissolving a temporary injunction on motion is not appealable.
    2. Appeal and error, § 309*—when appellant should dismiss bill for injunction in order to obtain final order of dismissal. Where an appellant is willing to rest his case upon a motion to dissolve a temporary injunction, he must, when the order dissolving the injunction is made, move the court to dismiss the bill, thus obtaining a final order of dismissal from which an appeal or writ or error will lie, although neither would lie from a mere decision on demurrer or motion to dissolve.
    Appeal from the Circuit Court of Sangamon county; the Hon. Norman L. Jones, Judge, presiding. Heard in this court at the April term, 1917.
    Appeal dismissed.
    Opinion filed July 14, 1917.
    Statement by the Court. Appellant filed a bill in equity in the Circuit Court of Sangamon county against the appellees praying. for a temporary and permanent injunction restraining appellees from placing electric wires on certain poles of appellant, and of appellant and another corporation, and from interfering with the wires of appellant on such poles, and for general relief. A temporary injunction was issued as prayed.
    The appellees answered the bill, setting up certain alleged rights of appellees under certain ordinances of the City of Springfield. Appellees then entered a motion to dissolve the temporary injunction. A replication was filed. The motion to dissolve the temporary injunction was heard on the bill, answer, replication and evidence in open court. In September, 1916, the court sustained the motion to dissolve the temporary injunction. On February 22, 1917, by agreement of the parties, the order entered in September was set aside, and the cause further heard on the motion to dissolve the temporary injunction, and the court again, held and ordered ‘ that the temporary injunction heretofore granted by the court be and is hereby, dissolved.” The appellant excepted and prayed an appeal, which was allowed. Appellant filed its bond February 27th, its bill of exceptions March 2nd, and the record in this court April 2, 1917.
    Wilson, Warren & Child, for appellant; Thomas Renaud Rutter and Philip Barton Warren, of counsel.
    Roy M. Seeley, Frank L. Hatch, Graham & Graham and Stevens & Herndon, for appellees.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

The decree appealed from is an interlocutory one, which dissolves a temporary injunction. It leaves the bill still pending in the trial court for a permanent injunction. No order or decree is made disposing of the chancery suit or of the costs in the cáse.

Appeals are only allowed from interlocutory orders concerning injunctions under and by virtue of section 123 of the Practice Act (J. & A. ¶ 8661). That section of the statutes only permits appeals to be taken from interlocutory orders when the order grants an injunction, or overrules a motion to dissolve an injunction or enlarges the scope of an injunction. In any of such cases an appeal may be taken to the Appellate Court, providing it is taken within thirty days and perfected in the Appellate Court within sixty days, and such appeals take precedence over other causes in such court.

Appeals are creatures of the statute, and the statute of Illinois neither provides for nor grants the right of appeal in orders refusing to grant or dissolving injunctions. If the appellant is willing to rest its case upon the motion to dissolve, it must, when the order dissolving the injunction is made, move the court to dismiss the bill, thus obtaining a final order of dismissal, from which an appeal or writ of error will lie, although neither would lie from a mere decision on demurrer or motion to dissolve. So where the only relief sought by the bill is an injunction, the complainant upon the dissolution of an injunction, which is in effect a final order denying all relief, may dismiss his own bill and take an appeal. Williams v. Chicago Exhibition Co., 188 Ill. 19; Carroll v. Barry Bros. Transp. Co., 118 Ill. App. 230. The case . stands precisely as it would if appellees had demurred and the court had sustained the demurrer and the appellee had not abided by its bill and had judgment entered on the demurrer' dismissing the bill. It still is on the docket in the trial court for further action.

The case being disposed of in the trial court, and an interlocutory order dismissing a temporary injunction not being an appealable order, an appeal does not lie from the order as made, dissolving the injunction, and the appeal is dismissed.

Appeal dismissed.


text:
    The People of the State of Illinois for use of New Boston Fish Company, Appellant, v. Noah Ferguson et al., Appellees.
    1. Appeal and error, § 624

      —when appeal is perfected in time. A case is properly before the court on appeal when the trial court enters a finding of fact at one term and at the succeeding term judgment is entered thereon and an appeal is prayed the day the judgment is entered.
    2. Justices op the peace, § 73*—formality of proceedings. The same technicality or formality is not required in proceedings before' a justice as in suits in a court of record.
    3. Justices op the peace, § 106*—when judgment misstating name of plaintiff is sufficient. Where the name of a plaintiff, “New Boston Fish Company,” is correctly given in the summons and in the title in the docket of a justice of the peace, a judgment rendered in favor of plaintiff, New Boston Fish Market Company,” is sufficient, the word “market” being regarded as surplusage.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded.
    Opinion filed July 14, 1917.
    John W. Sheehan, for appellant.
    James E. Dowling and Robert H. Patton, for appellees.

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is an action in debt begun by the People of the State of Dlinois for the use of New Boston Fish Company against Noah Ferguson, Fred Clayton and L. F. Mathers on a constable’s bond, for damages resulting from the alleged failure and neglect of Noah Ferguson, ■a constable, to levy or return within the time required by the statute an execution placed in his hands for the collection of a judgment.

The declaration avers the giving of the constable’s bond by the defendants, and that the New Boston Fish Company recovered a judgment before J. N. Shelton, a justice of the peace in the City of Springfield, against one Charles 0. Murray for $49.03 and $2.05 costs, and that an execution for the collection of the same was placed in the hands of Noah Ferguson, a constable, on November 18,1915, and that he failed and neglected to collect the same out of the goods of the debtor and return said writ to said court within seventy days as commanded. The defendant pleaded nil debet.

There is no dispute over the facts. The New Boston Fish Company, a corporation, began suit before J. N. Shelton, a justice of the peace, against Charles D. Murray. The summons and docket of the justice were offered in evidence. The plaintiff named in the summons and in the title of the case on the justice’s docket is “New Boston Fish Company.” The entry on the docket after the return of the summons is: “Nov. 10, 1915, at 3 p. m. case called for trial. Plaintiff in court in person of its agent, John W. Sheehan, and fully proves its demand. Defendant defaults. Judgment is rendered in favor of plaintiff, New Boston Fish Market Company, and against the defendant, Chas. O. Murray, in the sum of $49.03 and costs of suit.” The execution issued November 18, 1915, is in the regular form and commands “that of the goods, etc., you make; the sum of $49.03 judgment and interest thereon from the 10th day of November, A. D. 1915, and Two dollars and five cents costs, which New Boston Fish Company lately recovered before me, etc., in a certain plea against the said Charles O. Murray and-hereof make return to me within seventy days from this date unless,” etc. Ferguson, a constable, received the execution November 18, 1915, and did not return it until “April 21, 1916,” when he returned it indorsed “no property found to levy upon.” It is admitted that Nioah Ferguson is a constable and executed the bond sued upon with the other defendants as his sureties.

The case was heard before the court without a jury at the September term, 1916, and on the 9th day of September the court found “the issues for the defendants” but no judgment was rendered. On November 8th, at the November term, the defendants made a motion for a new trial, which was overruled and judgment rendered against the plaintiff, that it take nothing by its suit and in favor of defendants for costs. Plaintiff prosecutes this appeal.

Counsel for appellee contend that the appeal is not properly before this court and say that the bill of exceptions states that the court at the October term entered judgment against the plaintiff for costs and no appeal was prayed at that term. An examination of the record shows that the court at the October term found the issues for the defendants, but did not render any judgment either on the subject-matter of the' suit or for costs. It simply entered a finding of fact, which corresponds with a return of a verdict of a jury. Judgment was not rendered until at the November term and an appeal was prayed the day the judgment was entered. The case is properly in this court by appeal.

The justice of the peace in entering the original judgment on which the execution was issued -inadvertently inserted the word “market” in the name of plaintiff.' In the summons in the original case and in the title in the docket of the justice the name of plaintiff, “New Boston Fish Company,” is correctly-written: It is also correct in the execution issued that the constable failed to return for over five months, although the statutes require that he should return it within seventy days. The judgment rendered by the justice is: “Judgment is rendered in favor of plaintiff, New Boston Fish Market Company.” Freeman on Judgments, at section 50a, lays down the rule: “A judgment * * * is insufficient, if the whole record or judgment roll does not really disclose the parties for and against whom the judgment is given. On the other hand, it is equally well settled that the names of the parties need not be stated in the body of the judgment. * * * As heretofore suggested, every judgment may be construed and aided by the entire record. A mistake in the name of the party is therefore rarely of serious consequence. If his name is incorrectly spelled, * * * if his initials are reversed, or otherwise misstated in the entry, the mistake may be cured by reference to other parts of the record. If he sued or was sued by a wrong or fictitious name, or by some designation which included a part only of his name, and was personally served with process, and, failing to urge the misnomer in any way, judgment was entered for or against him, either by his correct name, or by such mistaken, fictitious or imperfect name, it is valid and enforceable.” Black on Judgments, secs. 116 and 213, announces the same rule. In Hoffield v. Board of Education of City of Newton, 33 Kan. 646, 7 Pac. 216, a judgment on a suit begun and entered against School District No. 1, Harvey County, after the district had been changed to Board of Education of the City of Newton, was held to be valid judgment against the latter corporation and collectible from it, the summons having been served on the officials of the latter. The same technicality and formality are not required in proceedings before a justice as in suits in a court of record. Hall v. Lance, 25 Ill. 277; County Court of Madison Co. v. Rutz, 63 Ill. 65; Brennan v. Shinkle, 89 Ill. 605. Since the name of plaintiff was correctly given in the summons and in the title of the case in the docket, the judgment being “in favor of plaintiff,” was a good and sufficient judgment. The judgment is in favor of the New Boston Fish Company. The misnomer of plaintiff in the body of the judgment by the insertion of the word “Market” will be considered as surplusage, which in no way affects the validity of the judgment or of the execution thereon. The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Phoebe Colvin, Appellant, v. City of Roodhouse, Appellee.
    Dismissal, nonsuit and discontinuance, § 14

      —when motion to enter voluntary nonsuit is improperly denied. Under the Practice Act, sec. 70 (J. & A. ¶ 8607), providing that every “person desirous of suffering a nonsuit shall he-barred therefrom unless he do so before the jury retire from the bar,” a plaintiff is entitled to take a nonsuit, in a case where a peremptory instruction is requested on a trial before a jury, where he makes a motion for leave to take a voluntary nonsuit immediately after the defendant requests a peremptory instruction and before the court gives the peremptory instruction.
    Appeal from the Circuit Court of Greene county; the Hon. Norman L. Jones, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded with directions.
    Opinion filed July 14, 1917.
    Whiteside & Wright, for appellant.
    Thomas Henshaw, for appellee.

      See Illinois Notes Diffest, Vols. XI to XV, and Cumulative Quarterly, samo topic and section number.

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is an gction on the case begun on August 25, 1916, by Phoebe Colvin against the City of Eoodhouse to recover for personal injuries averred to have been received by her on August 2, 1916, because of the negligence of defendant in permitting a sidewalk to be and remain in an unsafe and dangerous condition whereby she was injured while in the exercise of due care. The declaration does not contain any averment that prior to the institution of the suit any notice had been filed with the city officials as is required by section 7 of the Personal Injuries Act (J. & A. ¶ 6190). The case was tried before a jury September 8, 1916. After the evidence had'been closed and the opening argument made by counsel for plaintiff, the defendant entered a motion “to dismiss suit and for judgment in bar of action because no notice of injury had been given as required by statute, and that such notice was not averred and proved,” and requested the court to give a peremptory instruction to find the defendant not guilty. Thereupon the plaintiff entered a cross motion for leave fo take a voluntary nonsuit. The court denied the cross motion and gave the peremptory instruction requested by defendant, in pursuance of which the jury returned a verdict of not guilty. A motion for a new trial on the ground that the court erred in overruling the cross motion was denied and judgment entered on the verdict. The plaintiff appeals.

The only question involved is the ruling of the court .in denying the motion of plaintiff for leave to enter a voluntary nonsuit. Section 70 of the Practice Act, as amended in 1907, reads as follows (J. & A. ¶ 8607): “Every person desirous of suffering a nonsuit shall be barred therefrom, unless he do so before the jury retire from the bar, or if the case is tried before the court without a jury, before the case is submitted for final decision.” This provision of the Practice Act, so far as it affects cases tried by a jury, has remained unchanged since 1819. The words in italic were added in 1907, and are only applicable to cases tried by the court without a jury. It was held under the act before the amendment of 1907 that the plaintiff was entitled to take a nonsuit, in cases wherein motions for peremptory instructions were made, provided he elected to do so prior to the reading of the peremptory instructions to the jury (Berry v. Savage, 3 Ill. (2 Scam.) 261; Howe v. Harroun, 17 Ill. 494; Brown v. Lawler, 130 Ill. App. 540); and the same has uniformly been held to be the rule since that amendment was made (McMechen v. Chicago B. & Q. Ry. Co., 166 Ill. App. 150; Daube v. Kuppenheimer, 195 Ill. App. 99). The court erred in overruling the cross motion of appellant and in giving the peremptory instructions requested by appellee. The judgment is reversed and the cause remanded with instructions to the trial court to grant the cross motion of appellant for leave to enter a nonsuit.

Reversed and remanded with directions.


text:
    W. J. Sickafus, Appellant, v. Waldo Vickrey, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Moultrie county; the Hon. John McNutt, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed July 14, 1917.
    Statement of the Case.
    Action in the justice court by W. J. Sickafus, plaintiff, against Waldo Yickrey, defendant, to recover $100 claimed to be due him as commission for the exchange of defendant’s farm in another State for residence property of a third person in a town in which both defendant and such third person resided, as well as plaintiff. From a judgment for defendant in the Circuit Court, after appeal by plaintiff from a judgment in the former’s favor in the justice court, plaintiff appeals.
    Abstract of the Decision.
    1. Trial, § 68

      —when offer of evidence is untimely. The offering by plaintiff of evidence of the value of the services, after testifying to an alleged express contract for commissions for the exchange of real property, and before denial by the defendant of the making of the contract, is improper as it is then merely argumentative.
    2. Brokers, § 88*—when evidence is sufficient to sustain verdict. In an action by a broker for commissions for exchange of real estate, where the testimony was conflicting as to the existence of a contract, evidence held sufficient to sustain a verdict for defendant.
    C. R. Patterson and E. J. Miller, for appellant.
    McLaughlin & Thompson, for appellee.

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

   Mr. Presiding Justice Thompson

delivered the opin- . ion of the court.


author: Mr. Justice Eldredge

text:
    Shipman Banking Company, Appellee, v. Edward Douglas et al., Appellants.
    1. Evidence, | 202

      —when declarations':of party in disparagement of title to property are admissible. While declarations made by one in disparagement of his own title to property made subsequent to a transfer thereof cannot be admitted as against his assignee or grantee, still any such declaration made during his ownership is admissible as against such assignee or grantee,
    2. Insane persons, § 5*—when evidence is sufficient to show insanity of assignor of note. On a bill to foreclose a mortgage and cross-bill to have pretended assignments and transfers of the note secured by the mortgage by an alleged incompetent person and by the assignee to a complainant canceled and a new note and mortgage substituted, evidence held sufficient to show mental incompetency and insanity at the time of the assignment of the note.
    3. Insane persons, § 4*—when burden of proof is on complainant to cross-bill to show execution of assignment of note by assignor at_ lucid interval. On a bill to foreclose a mortgage, and cross-bill to have set aside pretended assignments and transfers of the note secured by the mortgage by an alleged incompetent person to the first assignee and to complainant canceled and a new note and mortgage substituted, where the proof showed that the assignor was practically insane both before and after the assignment, and there was no proof that such insanity was of a temporary character or that the cause of the mental derangement was violence, or temporary illness, held that the burden of proving that the assignor had lucid intervals and that the assignment was executed at a lucid intervál was upon complainant.
    4. Insane persons, § 54*—when assignment of note is void. The assignment without consideration of a note by an insane person who is unable to comprehend the nature of the transaction is void.
    5. Insane persons—when innocent purchaser not protected. A court of equity will protect the interests of the estate of an insane person who, without consideration, assigns a note to another, even against an innocent purchaser of the note from such assignee.
    Appeal from the Circuit Court of Macoupin county; the Hon. Prank W. Burton, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded with directions.
    Opinion filed July 14, 1917.

      Certiorari denied by Supreme Court (making opinion final).

      Statement by the Court. On November 29, A. D. 1911, James Metcalf et al., partners doing business as The Shipman Banking Company, filed their bill in the Circuit Court of Macoupin county making Edward Douglas and his wife, Ethel M. Douglas, parties defendant, to foreclose a mortgage on certain real estate given to secure a note for the principal sum $10,332.80, executed by Edward Douglas and payable to the order of Ella Miles. The bill avers that Ella Miles on a blank day indorsed and delivered the said note to one W. W. Bhoads by means whereof the said Bhoads then and there became the legal pwner thereof and of said mortgage securing the same, and that after-wards, to wit, on the 27th day of July, A. D. 1911, the said Bhoads then being the legal holder and owner of said instruments, indorsed and delivered the same to the complainants who, by virtue thereof, then and there became and still are the legal holders and owners of the note and mortgage.
    On the 19th day of December, A. D, 1911, the same complainants filed another bill in the Circuit Court in which Annie Burgoyne and Edward Douglas are made parties. This latter bill, after setting out the filing of the former bill, further avers that said Annie Burgoyne in the month of October, 1911, was appointed conservatrix of the estate of said Ella Miles on the ground that she was a feeble-minded person; that said Annie Burgoyne qualified as such conservatrix and is now acting in that capacity; that on or about the 14th day of December, A. D. 1911, the said conservatrix without any lawful warrant or authority therefor, and in violation of the rights of complainants as the legal owner of said note and mortgage, satisfied said mortgage of record in the office of the recorder of deeds of said county. The bill prays that said release of said mortgage be canceled and removed and for naught held as against the rights of the complainants; that the mortgage which is now in full force and effect, may be foreclosed as prayed for in the original bill; that Annie Burgoyne may be enjoined from disposing of any money that she may have received from Edward Douglas or any other person on account of said indebtedness, and that she and Edward Douglas may be required to fully set forth the nature and effect of all transactions had between them concerning the matter of said indebtedness, etc.
    On April 27, 1912, these two bills were consolidated and on August 3, 1912, Annie’ Burgoyne, as conservatrix of the estate of Ella Miles, a feeble-minded person, by leave of court filed her cross-bill making the partners of the Banking Company parties defendant thereto, and averring that for a year prior to the filing of the first bill mentioned, and from thence hitherto, said Ella Miles, on account of her mental weakness, was incapable of transacting ordinary business and had not sufficient mental capacity to sell, assign, transfer or otherwise dispose of said note and mortgage when it is claimed said note was assigned to said Rhoads; that said assignment to Rhoads was invalid and of no legal effect and is a fraud upon the rights of her said ward; that said ward received no consideration for the pretended assignment of the note, if any was made, and the transfer thereof to Rhoads was a pure gift without consideration while said ward was a feeble-minded person and without mental capacity to understand the transaction; all of which facts the said James Metcalf, who was cashier of said bank and who negotiated with Rhoads for the pretended purchase of said note, and who purchased the same from Rhoads for the bank, had full knowledge; that after her appointment as such conservatrix she made diligent search for said note and could not locate the same; that before its maturity she procured the execution and delivery to her, as such conservatrix, of a new note and mortgage in payment of the note and mortgage mentioned in the bills filed by complainants and thereupon released the original mortgage of record which was then and there in her possession as such conservatrix; that she now holds said new note and mortgage as part of the assets of the estate of her said ward. The cross-bill prays that the pretended assignments and transfers of the note to Rhoads by Ella Miles and to the said bank by Rhoads to be set aside and canceled and held for naught as against said Ella Miles, on account of her mental incapacity to assign the note and the fraud perpetrated upon her in procuring and disposing of the note by Rhoads; that said note be decreed paid and canceled by the new note and mortgage herein above referred to, etc.
    Issues were joined upon the consolidated bills and cross-bill and the cause referred to the master in chancery, who, after hearing the testimony of a large number of witnesses, reported, among other things, that the testimony taken on behalf of the conservatrix shows that during the summer and fall of 1911, and perhaps earlier than that, she was, on the occasions testified to, in a state bordering on idiocy or complete imbecility and that this testimony is strong and convincing; that, on the other hand, witnesses of equal credit, testified to facts and circumstances during this same period showing her to be in full mental capacity; and lays particular emphasis on the facts that in the spring of 1911, Mrs. Miles had an attorney prepare a power of attorney making Rhoads her attorney in •fact, and she had another attorney draw a will for her, and that these attorneys testified that she was at such times, respectively, of sound mind. He further reports that he is unable to reconcile this conflicting-testimony except upon the theory that the mental derangement mentioned by the witness was intermittent and that there were lucid intervals; that the burden of proof was on the conservatrix to prove that Mrs. Miles was mentally deranged and that the indorsement and delivery of the note to Rhoads was not at a time when she had a lucid interval; that Rhoads not being a party to the suit, conversation had by him with witnesses prior to the alleged assignment were incompetent evidence as against the bank; that the sharp question is presented, whether the bank shall lose all the money that it invested in this note, or whether Mrs. Miles should lose it, or be remitted to any remedy she may have against Rhoads; that during the pendency of this proceeding Mrs. Miles has departed this life and the case for that reason is somewhat simplified because should the conservatrix here prevail, it would be only for the benefit of the heirs of Mrs. Miles, and the welfare of Mrs. Miles need not longer be considered; that it would not be equity in this case to make the bank lose its investment only to enrich the heirs of Mrs. Miles; that the equity is with the complainants in the original bill; that the amount due on the note is $8,705.63, and recommends a decree foreclosing the original mortgage for said amount.
    This report was approved by the chancellor and a decree entered setting aside the release of the original mortgage executed by the conservatrix and ordering a foreclosure of the original mortgage. The decree also further provides that the second mortgage executed by Edward M. Douglas and his wife to Annie Burgoyne as such conservatrix, after making of such release, is wholly null and void and of no binding-force or effect, and the same should be and is by this decree canceled, and for naught held.
    Thomas Rinaker and S. Gilson Brown, for appellants.
    Edward C. Knotts and Peebles & Peebles, for appellees.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

Mrs. Ella Miles on the death of her husband in 1903 became the owner of one hundred and sixty acres of land near Miles Station, Macoupin County, Elinois. In 1906 she sold the farm to Edward Douglas, taking in part payment therefor a note from Douglas for the principal sum of $10,332.80, payable in five years and secured by a mortgage on the land. In 1-909, Douglas paid $3,000 on this' note and with this money Mrs. Miles bought a house for a home in Alton, where she lived until the spring of 1911, when she went to live with W. W. Rhoads at his home in Brighton, and there resided until September, 1911, when she went to the home of Annie Burgoyne. On July 27, 1911, Rhoads, who owed the appellee bank over $5,000, which indebtedness had been placed in judgment, assigned this note to the bank in part payment thereof. The note at this time bore the indorsement signed by Ella Miles, “Bay to the order of W. W. Rhoads.” Rhoads at this time was also indebted to a man by the name of Stewart to the amount of $1,700, evidenced by a note secured by a mortgage on his farm. Before the assignment of the note in controversy to the bank by Rhoads, the latter informed Metcalf, the cashier, that Mrs. Miles had given him the note and that he did not have the mortgage securing the same because he could not find it. The bank after consultation with its attorneys accepted the note, paid Rhoads’ indebtedness to Stewart and applied the balance on his indebtedness to the bank, which satisfied the same within $300, for which balance Rhoads executed a new note payable to the bank.

On October 2, 1911, Mrs. Miles was found upon inquest to be a distracted person and Mrs. Burgoyne was appointed conservatrix of her estate. The conservatrix in taking charge of the property of her ward found a note for the sum of $100 payable to Ella Miles and executed by Rhoads; $100 in cash deposited in an Alton bank, some other personal property, and also the Douglas mortgage, but failed to find the note which the mortgage secured. On November 22, 1911, she procured the execution by Douglas and his wife of a new note for the principal amount of the balance due on the original note, payable to her as such conservatrix, and also a new mortgage to secure the payment of this note, and released the original mortgage.

The testimony of a large number of disinterested witnesses produced on behalf of appellants shows conclusively that at the times, at least, of the incidents of which they testified, Mrs. Miles was not only feeble-minded for a year or more prior to the spring of 1911, but absolutely insane, and we agree with the master that this proof “is strong and convincing.” We do not agree with the master that the proof introduced on behalf of appellees is as convincing or entitled to the same weight as that introduced on behalf of appellants. We will state our reasons for this conclusion by briefly commenting upon the testimony of the more important witnesses who testified on behalf of appellees that Mrs. Miles was mentally sound. Francis Mayerhofer knew nothing of her condition since November, 1909. W. H. G-oodell knew nothing of her business capacity since 1906 or 1907, and had only greeted her once since that time, which was in 1910, to ask about her health. D. M. Blodgett, who is connected with a bank in Brighton, testified that Mrs. Miles had been a depositor in that bank from 1907 to 1911, and that she closed her account in the spring of 1911; she had drawn no checks against it for several years and there was no' change in it for two years before 1911; she had done no business with the bank for two years before 1911 except to sign notes as surety for Rhoads; that he is interested with Rhoads in some timber lands and Rhoads was then indebted to the bank. J. W. Darlington had not seen her since she went to live with Rhoads and had only met her once or twice since 1908. James Barber had no knowledge of her since the spring of 1909. Albert Gent testified that he was an intimate personal friend of Rhoads and was in the latter’s home at least four times a week from the time Mrs. Miles came there in May, 1911, until September or October of that year; he and Rhoads had dealings together in the prop business; that Rhoades brought Mrs. Miles to live with him after he saw in the St. Louis paper that she had been wandering away; that when she came to live with the Rhoads in May she was capable of transacting business and continued to be competent to do so all the time she was there. Ella Boyle testified that she was the matron of the Alton Woman’s Home; that between the middle of July and August, 1911, Rhoads and his wife, Gent and Mrs. Miles visited the Home and stayed about an hour. She detailed no conversation had with Mrs. Miles, but says she gained the impression that Mrs. Miles intended to leave something to the Home, and Rhoads was the only one who said anything about Mrs. Miles entering the Home as an inmate; that from what she saw of Mrs. Miles at that time, she was not insane. L. D. Yager, attorney at law, testified that on some day in May, 1911, Mrs. Miles came to his office in the morning with a woman she introduced as her niece, asked to have him draw her will and told him what she wanted therein; that she returned in the afternoon and executed the will; he does not recall who were the witnesses nor what were the contents of the will but believes at that time she was competent to transact ordinary business. He further testified that this took place about a week or ten days before he read in the newspaper of the Belleville incident.

The Belleville incident mentioned by the witnesses is only one of the many acts of more or less similar character testified to by the witnesses produced on behalf of appellants and is the only one that will be referred to, as no good purpose would be served in detailing all the deplorable manifestations of mental weakness testified to in regard to this unfortunate woman. ' The Belleville incident is uncontroverted, was published in the press, is a matter of public notoriety and stands unquestioned. Rev. A. D. Lindsay, a witness for appellants and a minister in Belle-ville, testified that on May 11, 1911, he was called to the police station in said city where he was informed there was a lady whose name was Mrs. Miles of Alton; that she was absolutely devoid of mind and everything seemed a blank to her; he tried to talk with her for over two hours but could get very little response from her; she had some letters and newspaper clippings, one clipping she said related to the funeral of her husband, another announced the marriage of her daughter, Edna Miles, and was signed by her father; she said that the man mentioned in the clipping was her husband; the announcement was about a month old and when he asked her how her husband, who had been dead ten years, could announce his daughter’s marriage a month ago, she said .she couldn’t tell, she didn’t know; that when he asked her if this man was her husband and she her husband’s second wife, she said yes, she had forgotten that; she said she lived in'Upper Alton and she thought she was then in Peoria and said she never had been in Belleville; she said she did not know if she had any money, that she left home with $500; she had $208 in money with her; she carried a little market basket, two lady’s large hand bags and a smaller one, and in the basket was an empty oatmeal box, empty tobacco boxes and little pieces of paper folded up; she wanted to give the children some of these to put buttons in; she was very poorly dressed, very dirty and looked like a tramp; the police asked him to take her to Alton; he took her to his house and his wife bathed her and gave her dinner; he procured a neighbor lady to take her to Alton; the Edna Miles referred to in the newspaper was a daughter of a lawyer in St. Louis.

There is no evidence in the record tending to show that a woman of her age and thus mentally afflicted could within a week or ten days thereafter have sufficient mental capacity to make a will. The only evidence in regard to her execution of the power of attorney to Ehoads is by the witness John Brenholt, Jr., who testified that he was a stenographer in the law office of his father in Alton; that sometime between January and June 1911, Mrs. Miles in company with Ehoades, came to his father’s law office and asked to have him draw an instrument making Ehoads her attorney; that his father dictated the power of attorney to the witness who wrote it out on a typewriter; that in his opinion Mrs. Miles was mentally competent at that time to transact business. The power of attorney was not introduced in evidence and the witness does not state what its contents were or what Ehoads was authorized to do by virtue thereof. Mrs. Miles had no business to transact with the exception of receiving the interest as it became due upon the Douglas note and the rent from her cottage at Alton. If she was of sound mind and capable of transacting the ordinary business affairs of life, there is no apparent reason shown in the record why she could not attend to these simple matters without the necessity of having some one act for her through a power of attorney. The will was not offered in evidence nor any testimony given as to its provisions, has never been offered for probate, and whether it still exists or in whose possession it may be does not appear. We do not think the facts that Mrs. Miles, under the tutelage of Rhoads, executed the power of attorney to him when there was no apparent necessity therefor, or that she executed a will under the circumstances shown, are incompatible with the theory that she was mentally incompetent to transact the ordinary business affairs of life, or sufficient to rebut the positive evidence of her mental infirmity. The fact that she voluntarily assigned this note, which was substantially all the property she had, to Rhoads at her age and in her condition as a gift to him, and at a time when he was financially embarrassed and being pressed by his creditors, cannot be urged as a circumstance showing business acumen.

The witness Irving M. Clark testified that Rhoads told him in Alton on April 26, 1911, that he was looking after some business for Mrs. Miles; that she was in a very critical state mentally, was unable to attend to business and because of her mental condition, had gotten her business affairs in a very serious condition; that her mind was practically gone; that she had been found wandering on the streets of Alton; that a short time before she had lost a number of papers and that the noté and mortgage that she held on property owned by Douglas were lost and he was making efforts to find them; that she had given him a power of attorney to transact all her business for her; and that she had made an agreement with him that at her death the mortgage was to go to him but that during her lifetime she was to receive the interest and on her death he was to have the benefit of the note. Thomas F. Chamberlain testified that he was cashier of the First National Bank at Belleville and met Rhoads in the bank about the middle of April, 1911; that Rhoads stated to him that he was looking after Mrs. Miles’ business- and that the mortgage was lost; that she was not capable of handling her business and he had a power of attorney and was looking after it for her; that he didn’t know where her papers were and did not know what to do about them; that she would mention papers and then not be able to find them. This witness further testified that about the 8th or 9th of June, 1911, Rhoads told him that he had some pretty good fortune; that Mrs. Miles had given bim the $7,300 note on the Miles property. The witness asked Rhoads if he had ever found the mortgage and that Rhoads answered no; that Rhoads said that she had lived with him a long time, that she had some nieces down in Alton and she did not want them to have it, and that he thought that he was entitled to it on account of the fact that she did not want them to have it; that she had given it to him; and that she was the owner while she lived and it was to go to him after her death. Both of the above witnesses were disinterested and wholly worthy of credit, and their testimony shows conclusively that Rhoads secured the assignment of this note to him by Mrs. Miles when she was mentally deranged and incapable of transacting business. Several other witnesses testified to conversations had with Rhoads in or about this same period of time,. wherein Rhoads stated, in substance, that Mrs. Miles was “crazy” and was unable to transact any business and that she had given him this note and mortgage. The master and chancellor refused to consider any of this evidence, on the grounds that Rhoads was not a party to the suit and that such statements by him were incompetent as against the bank. "While the rule is that declarations, made by one in disparagement of his own title to property made subsequent to a transfer thereof, can-" not be admitted against his assignee or grantee, still any such declaration made during his ownership is admissible as against such grantee or assignee. Williams v. Judy, 8 Ill. (3 Gilm.) 282; Sandifer v. Hoard, 59 Ill. 246; Hanchett v. Kimbark, 118 Ill. 121; Ander son v. South Chicago Brewing Co., 173 Ill. 213; Gage v. Eddy, 179 Ill. 492; First Nat. Bank of Monmouth v. Strang, 138 Ill. 347. The evidence of the witnesses Clark and Chamberlain, at least, was clearly competent, as it tended to show that Ehoads admitted that the note in question was assigned to him as a gift by Mrs. Miles without consideration and while she was insane, and consequently he had no valid title to it.

The proof shows that Mrs. Miles was practically insane both before and after her assignment of the note to Ehoads, and there was no proof that such insanity was of a temporary character or that the canse of the mental derangement was violence, or temporary illness. Under these conditions the burden of showing that Mrs. Miles had lucid intervals and that the assignment of this note was executed by her at a lucid interval was upon the appellees, and there is no such proof in the record. The James White Memorial Home v. Haeg, 204 Ill. 422; Taylor v. Pegram, 151 Ill. 106.

The proof conclusively shows that Ehoads procured the note from Mrs. Miles while she was mentally incompetent to understand the nature of the transaction.

The assignment of the note to Rhoads by her is therefore void. Jeneson v. Jeneson, 66 Ill. 259.

In the case of Jordan v. Kirkpatrick, 251 Ill. 116, the court quoted, with approval, the following expression announced in the case of Dickerson v. Davis, 111 Ind. 433: “The protection of persons who are so unfortunate as to be bereft of reason and incapable of managing their own estates is of higher obligation and an object more to be cherished by the courts than is the protection of holders of commercial paper, however innocent they may be.” If the bank is an innocent purchaser of this note without knowledge of Mrs. Miles ’ mental condition, which in our opinion is doubtful, it is unfortunate, but a court of equity cannot sanction such looting of the estate of an insane person as is shown by the record in this case. The fact that Mrs. Miles has died since the institution of these proceedings gives appellees no greater rights than they had before her death.

The decree of the Circuit Court is reversed and the cause remanded with directions to dismiss the original bills for want of equity and to enter a decree in arcordance with the prayer of the cross-bill of appellants.

Reversed and remanded with directions. .


text:
    Emma J. Rickly, Executrix, Appellee, v. Parlin & Orendorff Company, Appellant.
    (Not to be reported in full.)
    Appeal from the City Court of Canton; the Hon. Habby C. Moran, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed July 14, 1917.
    Statement of the Case.
    Bill for discovery by Emma J: Rickly, executrix of the last will of George C. Rickly, deceased, complainant, against Parlin & Orendorff Company, defendant. Prom a judgment overruling a demurrer and ordering an answer to be filed, defendant appeals.
    Harvey H. Atherton, for appellant.
    O’Hern & O’Hern, for appellee.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and error, § 304 —what order is appealable. When discovery is the only relief sought in a bill, a decretal order overruling a demurrer and ordering an answer is final and appealable.

2. Discovert, § 7*—when bill is sufficient. When a bill.is filed purely for discovery in aid of a suit at law, it is sufficient if it is averred therein that the evidence sought will aid the complainant in the suit at law.

3. Discovery, § 3*—what is effect of statute relative to production of boohs and documents. Rev. St. ch. 51, sec. 9 (J. & A. 5526), providing for the production of books and writings containing evidence pertinent to the issue in any action at law, has not abrogated the jurisdiction of equity to grant relief by way of bills of discovery, but simply gives to a party to a suit at law additional means of procuring evidence tending to prove the issue presented by him and in the possession of the third party.

4. Discovery, § 7*—when bill against corporation for, is sufficient. A bill for discovery against a corporation which had entered into a contract for the payment of certain royalties on an invention of complainant’s decedent and had not fully accounted therefor, averring that defendant is a large manufacturing corporation with a voluminous and complex system of bookkeeping and that complainant has no means of knowing whether the information sou'ght, the number and kind of the patented articles sold, is kept in defendant’s regular system of bookkeeping or not, and that defendant is the only one that has any knowledge of the accounts in question, which were all on one side, and about which defendant could alone furnish accurate information, held sufficient.


text:
    City of Springfield, Appellee, v. Interstate Independent Telephone & Telegraph Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Sangamon county; the Hon. Frank W. Burton, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed.
    Opinion filed July 14, 1917.
    Statement of the Case.
    Action in debt by the City of Springfield, plaintiff, against the Interstate Independent Telephone & Telegraph Company, defendant, to recover compensation for rentals alleged to be due for the occupation of portions of the streets and alleys of the City of Springfield, during the years 1909 to 1913 inclusive, by poles owned by defendant. From a judgment for plaintiff for $13,000, defendant appeals.
    The fundamental issues in this case are nearly identical with those in the case of City of Springfield v. Interstate Independent Telephone & Telegraph Co., 201 Ill. App. 227, and the decision in such case is controlling.
    Fred A. Dolph and Ben B. Boynton, for appellant; E. J. Marshall, of counsel.
    Frank L. Hatch and Albert Stevens, for appellee; Timothy McGrath, of counsel.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Charles E. Heimburger, Administrator of the Estate of Katherine Holtapp, Deceased, Appellant, v. Louis B. Holtapp, Frank G. Holtapp and George Holtapp, Appellees.
    1. Dower, § 132

      —what are rights as to assignment of. The right to an estate in dower is created by law, and it is the duty of the heir at law, or whatever person has the next estate of inheritance or freehold in any lands of which any person is entitled to dower, to assign same as soon as practicable to the one entitled thereto, and if such dower be not so assigned, the surviving wife or husband, as the case may be, may sue and compel an assignment to be made.
    2. Dower, § 137*—validity of parol agreement as to assignment. The heirs owning the fee in lands may agree with the widow entitled to dower therein what the extent, limits and boundaries thereof may be, and when such an agreement has been made, it acts as a release of such dower in the remaining lands, and such agreements do not come within the Statute of Frauds.
    3. Dower, § 97*—who may receive release of unassigned dower. Unassigned dower is not the subject of transfer or sale and can only be released to one in privity with the title under which the doweress claims.
    4. Abatement and revival, § 10*—when rights as to assignment of dower are abated. The rights of a widow to an assignment Of her dower under an agreement therefor are abated by her death, and do not survive to her administrator.
    5. Contracts, § 303*—when performance is excused. In a contract, the performance of which requires the existence of a particular person or thing to complete its execution, a condition is always implied that the death or destruction of that person or thing shall excuse performance.
    6. Dower—when count in declaration to recover on contract to pay a certain sum for release of dower is demurrable. A count in a declaration in assumpsit by the administrator of a widow who, in her lifetime, had a dower and homestead interest in land based upon the theory of a contract whereby the widow promised to release to the defendants the dower and homestead interests in consideration of the payment of a certain sum' of money, part in cash and part by note, which defendants had failed to do, is demurrable because it does not aver that the widow in her lifetime, in pursuance to said contract, ever did, in fact, release her right of action to have her homestead, dower and widow’s award set off, assigned and awarded.
    Appeal from the Circuit Court of Champaign county; the Hon. Feanklin H. Boggs, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed July 14, 1917.
    Acton & Acton, for appellant.
    Green & Palmer, for appellees.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

Appellant filed his declaration in assumpsit in the Circuit Court of Champaign county making the appellees, together with Fred Holtapp, Charles Holtapp and John F. Holtapp, defendants. Service was only procured upon appellees.

The original declaration consists of one count and to which appellees filed seven pleas. The court sustained the demurrer to the fourth, fifth, sixth and seventh pleas and overruled it as to the second and third pleas.

Appellant then filed two additional counts, to which appellees filed a general and special demurrer which was sustained, thereupon, appellant having abided by these counts and by his demurrer to the second and third pleas filed to the original declaration, judgment in bar of the action was rendered against him, to reverse which this appeal is prosecuted.

Counsel for appellant in their argument state: “The original declaration did not allege that the promise sued on was a verbal one, but with that exception, all the rights that the appellant alleges in the original count of the declaration is also contained in the second additional count of the declaration. But, since there are other allegations in the second additional count, that are not in the original count of the declaration, it will simplify the issues argued in this case to present the case to this court entirely as to the rulings of the court, on the first and second additional counts of the declaration, to which the court sustained a demurrer and entered judgment in bar of the action.”

It will therefore be necessary to consider only the sufficiency of the first and second additional counts.

It is alleged in the first additional count that Katherine Holtapp in her lifetime was the wife of one Joseph Holtapp and that said Joseph Holtapp died on or about November 26,1914, and left surviving him the said Katherine Holtapp, his widow, and Louis B., Frank G., George, Fred, Charles and J. F. Holtapp, his children and only heirs at law; that at the time of his death he was the owner of certain described real estate in Champaign county, being farm lands of the value of $70,000, and also a certain residence property in Bantoul, Illinois, of the value of $3,000, which was then occupied by him and his wife as a homestead; that after the death of said Joseph Holtapp, the said Katherine Holtapp" was entitled to have a widow’s award allowed to her in the administration of said estate, and also had a right of action to have an estate for life set apart to her in said residence property to the value of $1,000, and also was entitled to have an estate, for life set apart to her in the other real estate to the extent of one-third part thereof; that on November 29,1915, the defendants verbally offered, promised and agreed to pay to said Katherine Holtapp $11,000 as a gross sum of money as and for a parol assignment of homestead and dower in and to real estate and also in full for said widow’s award and then and there offered, promised and agreed to pay said gross sum of $11,000 in the manner following, to wit: (a) that said $11,000 should draw interest at five per cent, from March 1, 1915; (b) that said Katherine Holtapp should have the right to select such personal property out of the estate at the appraised value as she might desire to receive, and the same to he deducted from the said sum of $11,000; (c) that she should pay $10 per month from March 1,1915, as rent for the said homestead to the time of the payment of said gross sum of money and the same to be deducted from said sum of $11,000; (d) that she should accept the notes of the defendants for $9,500 with interest at five per cent, due in five years, to be secured by mortgage on one hundred and sixty acres of said lands as part payment of said sum of $11,000, and the balance should be paid by the defendants to her in cash, said notes and mortgage to be delivered and said money to be paid within a reasonable time; that said Katherine Holtapp at the special instance and request of the defendants, and in consideration of their parol assignment of dower and homestead as aforesaid and of their promise as aforesaid, did then and there accept the parol assignment of homestead and dower in said premises in said gross sum of money, to wit, $11,000, on the terms and conditions of said offer and promise of the defendants aforesaid, and in consideration thereof did then and there release any and all right to her widow’s award and thereupon did select and receive at the appraised value, personal property from the estate of the said Joseph Holtapp, deceased, of $21.10; that thereafter said Katherine Holtapp died on, to wit, December 31, 1915, without then and there having received from the defendants the payment of said sum of money promised by them as aforesaid and without the said note and mortgage having been delivered by the defendants to the said Katherine Holtapp; that plaintiff has been duly appointed administrator of the estate of said Katherine Holtapp and has demanded of tlie defendants that they carry out said verbal agreement of parol assignment of homestead and dower and settlement of said right to widow’s award by the execution of said note and mortgage and the payment of said gross sum of money, and that the defendants, although a reasonable time has elapsed for the performance of said agreements and promises, have failed to execute and deliver said note and mortgage and to pay to the plaintiff, as such administrator, the said sum of $11,000 and interest thereon, or any part thereof, excepting the said personal property of the appraised value of $21.10 received by said Katherine in her lifetime, etc.

The second additional count, after setting out the preliminary averments as contained in the first additional count, alleges that on November 29, 1915, said Katherine Holtapp, at the special instance and request of the defendants, verbally promised them that in consideration of $1,000 she would waive and release to the defendants her right to have a homestead estate assigned to her out of said lands, and that for a further consideration of $10,000 to be paid by said defendants, she would release to them her right of action to have said widow’s award and dower assigned to her in said estate and out of said lands, and would also account to and pay to defendants for said homestead at the rate of $10 per month from March 1, 1915, as rent for the use of the same to the time that said money should be paid, and would credit on said $10,000 such amount as she might receive in the personal property at the appraised value as she might - select, and that said defendants should pay interest on said amounts of $1,000 and $10,000 at five per cent, from March 1, 1915, and that she would accept from the defendants their notes for $9,500 with interest at five per cent., due in five years, to be secured by mortgage on one hundred and sixty acres of said lands and the balance to be paid by defendants in cash, said note and mortgage and cash to be delivered and paid within a reasonable time; that the defendants were the children and heirs at law of said Joseph Holtapp, deceased, and are and were the owners of said real estate in fee simple but subject to the right of action of said widow to have her homestead and dower assigned to her, and on the day aforesaid and in consideration of the promises of aaid Katherine Holtapp above set forth, defendants verbally promised to pay to the said Katherine Holtapp for her release of her right of action to have said homestead set apart to her the said sum of $1,000, and as a consideration of her release of said dower and widow’s award said sum of $10,000 with interest on each of said sums at five per cent, per annum from March 1, 1915; that in pursuance and in accordance with said agreement, and relying thereon, said Katherine Holtapp did not have her homestead and dower in said real estate assigned, and did select and receive at the appraised value personal property from said estate $21.10, and thereafter on, to wit, December 31,1915, died without having received from the defendants said note and mortgage or the payment of said $10,000. The count concludes with the same averments as are set out in the first additional count.

The demurrer to the first additional count clearly presents the issue whether a right of action survives to the administrator of the estate of a deceased doweress to recover damages from the heirs owning the title in fee to the lands, for their failure to fulfil their joint promise to make a parol assignment of dower in a gross sum of money in the lifetime of the doweress.

The right to an estate of dower is created by law, and it is the duty of the heir at law, or whatever person has the next estate of inheritance or freehold in any lands of which any person is entitled to dower, to assign the same as soon as practicable to the one entitled thereto, and, if such dower be not so assigned, the surviving wife or husband, as the case may be, may sue and compel an assignment to be made against such heirs or other persons whose duty it was to make such assignment. It is well settled that the heirs owning the fee in the lands may by parol agree with the widow entitled to an estate of dower therein what the extent, limits and boundaries thereof may be, and when such an agreement has been made, it acts as a release of such dower estate in the remaining lands; and such agreements do not come within the Statute of Frauds. Lenfers v. Henke, 73 Ill. 405; Pearce v. Pearce, 184 Ill. 289; Brewer v. Brown, 268 Ill. 562. In the case of Pearce v. Pearce, supra, it was held:

‘ ‘ The right to dower is created by law. The particular portion of the premises to be enjoyed by the widow is ascertained by the assignment. As the assignment does not create or transfer any interest in land it may be made without writing,—by verbal agreement made and entered into between the owner of the fee and the doweress. * * * The statute also created an estate of homestead in the widow in the farm. * * * The assignment of dower involved consideration of the rental value of the land; the assignment of the homestead estate involved the market or salable value of the land. We have seen dower may be assigned by parol agreement, the right not being’ thereby created. The assignment of the homestead estate does not create the right to that estate, but only determines the limits or boundaries thereof. On reason and principal that estate may also be assigned by parol.”

Unassigned dower is not the subject of transfer or sale and can only be released to one in privity with the title under which the doweress claims. Fletcher v. Shepherd, 174 Ill. 262. It is also well settled that the right of a widow to dower does not survive to the administrator, and this is true even if her death does not take place until after she has brought suit to establish her rights thereto, if it occurs before her rights are actually established. Turney v. Smith, 14 Ill. 242; Hitt v. Scammon, 82 Ill. 519; Storrs v. St. Luke’s Hospital, 180 Ill. 368; Selden v. Illinois Trust & Savings Bank, 239 Ill. 67.

Assuming that dower may be assigned by the payment of a sum of money in gross, the facts alleged in this count show nothing more than a promise by the heirs to assign dower. The assignment was never completed and upon the death of the widow her right to such assignment abated.

The second additional count is based upon the theory of a contract whereby Katherine Holtapp promised to release to the defendants her right of action to have homestead estate assigned to her in consideration that the defendants should pay her $1,000, and that she promised she would release to the defendants her right of action to have said widow’s award and dower assigned to her in consideration that the defendants would pay her $10,000, to be paid by their joint note of $9,500 with interest at five per cent, from date and due in five years, secured by mortgage on one hundred and sixty acres of the lands, and the balance to be paid by the defendants in cash, within a reasonable time, and that defendants, in consideration of said promises of Katherine Holtapp, verbally promised to pay her said sums of money in the manner mentioned within a reasonable time. The count further shows that within thirty-one days after the alleged contract was made and before the defendants had executed-the note and mortgage or made the cash payments, Katherine Holtapp died and consequently before the defendants did or could perform their part of the contract the subject-matter thereof was destroyed and ceased to exist. In a contract the performance of which requires the existence of a particular person or thing to complete its execution, a condition is always implied that the death or destruction of that person or thing shall excuse performance. Emerich Outfitting Co. v. Siegel, Cooper & Co., 237 Ill. 610. After her death there was no estate of homestead to release and no estate of dower to assign, and consequently no right of action to have said estate .assigned could exist and survive to the administrator of her estate. If this count might have otherwise stated a good cause of action, it is subject to demurrer for the reason that it does not aver that Katherine Holtapp in her lifetime in pursuance to said contract, ever did, in fact, release her right of action to have her homestead, dower and widow’s award set off, assigned and awarded.

In our opinion the court did not err in sustaining the demurrer to these counts nor in overruling the demurrer to the second and third special pleas to the original declaration. The judgment is therefore affirmed.

Affirmed.