text:
    Caroline Moore et al., Appellants, v. Catherine Brandenburg et al., Appellees.
    Gen. No. 5,667.
    1. Appeals and errors—what assignments of error present question whether complainant was entitled to relief. Assignments of error present the question whether under the allegations and proof complainants were entitled to any relief, where it is alleged that the court erred in dismissing the bill for want of equity, in not entering a decree directing defendants to account, and that the decree is contrary to the law and evidence.
    2. Chancery—what decree complainant entitled to on hill to set aside gifts on ground of undue influence and incapacity. On bill to set aside certain gifts and transfers, made by a decedent, on the ground of undue influence and mental incapacity, though such influenee and incapacity are not established, complainants are entitled to a decree determining title to funds in bank at the death of decedent claimed by them as part of his estate and by the widow as her property.
    3. Gifts—when acts considered those of competent person. Acta of a decedent in making certain gifts and transfers must be considered as the acts of a competent person where the evidence shows that he was fully capable of transacting business up to the last five weeks of his life and no act in question occurred during that period.
    4. Gifts—fiduciary relation. The mere fact that a decedent made gifts to his wife and son does not tend to prove a fiduciary relation.
    5. Gifts—hank account. A valid gift of a hank account is made where a decedent orders such account transferred to his wife’s name and she takes a certificate of deposit in her name and withdraws the account several months before decedent’s death and an intention by decedent to dispose of his property in his lifetime is shown.
    6. Evidence—presumption as to possession and control of hank hook. It may be presumed that a bank book was in the possession of decedent’s wife in his lifetime and remained in her possession and control up to the time of his death, where it appears that ■ decedent deposited money in his wife’s name a short time before his death, that both were authorized to make withdrawals, and that the wife made a withdrawal, in decedent’s lifetime, in his name written over the printed words on the blank receipt, “Owner of Bank Book.”
    7. Gifts—when gift of hank hook fully executed. A gift of a hank account to the donor’s wife is fully executed if the bank book was in the possession of the wife in the donor’s lifetime and remained in her possession and control up to his death and if the transaction was intended as a gift.
    8. Decbee—legal effect of, dismissing for want of equity and for want of jurisdiction. Where a decree dismisses the bill for want of jurisdiction and for want of equity, such decree in legal effect dismisses for want of equity.and it is immaterial whether the trial court by the use of the words “want of jurisdiction” intended that there were matters involved that it had no jurisdiction to consider.
    Appeal from the Circuit Court of La Salle County; the Hon. Edgab Eldbedge, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 12, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    O. A. Darnell and L. B. Olmstead, for appellants.
    Butters & Armstrong, for appellees.
   Mr. Justice Carnes

delivered the opinion of the court.

This case was here on a former appeal and reported in 154 Ill. App. 156, and in the Supreme Court on a writ of certiorari reported in 248 Ill. 232. We refer to the reported cases for a statement of the facts and issues there presented. It was there held that the hill presented a case for the exercise of equitable jurisdiction; it is quite fully set out and a statement of its contents may be here omitted.

The case was reinstated in the trial court. The adult defendants answered denying all allegations of undue influence and incapacity of Peter Brandenburg, and denying that they took charge of the property of deceased except the sum of about $4,000, which they allege was withdrawn from the bank by the widow after his death and'divided among herself and the five heirs, in which action all concurred. A guardian ad litem had before filed formal answer for the two minor defendants, and on issues so formed the cause was referred to the master in chancery to take and report proofs. The trial court, on proofs so reported, entered a decree finding the equities with the defendants and that the complainants had wholly failed to prove all and singular of the allegations of their said bill of complaint and that the court is without jurisdiction in said matter and dismissed the bill “for want of jurisdiction and for want of equity.” Complainants appeal to this court assigning as error that the court erred in dismissing the amended bill for want of jurisdiction and of equity; in not entering a decree directing appellees to account, and that the decree is contrary to the law and the evidence, with other general assignments of same import. It is urged by appellees’ counsel that these assignments of error, are not sufficient to question here the finding in the decree, that complainants failed to prove the allegations of their bill. We are of the opinion that they present to this court the question whether under the allegations and the proof the complainants were entitled to any relief. Coverdale v. Royal Arcanum, 199 Ill. 649; Mullin v. Johnson, 98 Ill. App. 621, and cases there cited.

It is also contended by appellee’s counsel that the allegations of the bill of unsound mind of deceased and undue influence exercised by the adult defendants are jurisdictional, and on failure to establish those allegations by proof the court had no jurisdiction to inquire into the other charges in the bill, that Catherine Brandenburg and Christian Brandenburg drew from banks money of Peter Brandenburg and of -his estate and retained the same. The opinion of the Supreme Court in this case clearly holds the reverse. Complainants have a right in this proceeding to a decree determining the title to funds in bank at the death of Peter Brandenburg, claimed by them as a part of his estate and by the widow as her own property.

It appears from the evidence that Peter Brandenburg at the time of his death was past eighty years old; that he had been in infirm health for about fifteen years, but was only confined to his home, in what may be called his last sicknes, five or six weeks. Several years before his death he had divided all his real estate consisting of several hundred acres of farm land among his widow and children. The value of such real estate does not fully appear, but no question is made as to such distribution. He had considerable personal property but the record does not disclose how much, or attempt to show in any detail in what it- was invested or how managed or controlled. At the time of his death there was about $4,000 deposited in banks that was drawn out on the joint receipt of the widow and heirs, and after paying funeral charges and small debts, divided among them in accordance with their rights as distributees under the statute. No complaint is made of this action. There is no evidence in the .record showing any word or act of Peter Brandenburg before his last sickness of five or six weeks indicating mental unsoundness or disability; there is nothing in the record of his last illness showing incapacity to transact business, except his physical weakness during that time; there is little in the evidence introduced by either party showing acts or conversations of deceased during any period of his life. A number of witnesses, acquainted with deceased, testified to opinions as to his ability to transact ordinary business up to the last days of his life; much the larger number stated that he was competent. The record clearly shows that up to the last five or six weeks of his life deceased was fully capable of transacting business. No act of his here in question occurred during the later weeks of his life, therefore they must be considered as the acts of a competent man. Neither is there any evidence that the defendants, Catherine Brandenburg and Christian Brandenburg had charge of the estate of deceased in his lifetime or in any way influenced him in its management or distribution. It is contended by complainants that a fiduciary relation existed and therefore gifts being admitted or proven, the burden is on the beneficiary to show the fairness of the transaction but no fiduciary relation is shown. The mere fact that Catherine Brandenburg was his wife and Christian Brandenburg was his son, does not prove or tend to prove such relation. Bishop v. Hilliard, 227 Ill. 382. The main contention arises over deposits in the Farmer’s State Bank of Somonauk, HI., and the Ottawa Banking and Trust Company. In the former bank there were deposits of $1,000 December 21, 1900, and $2,000 March 31, 1902, made by Peter Brandenburg, evidenced by certificates of deposit, on which interest was indorsed paid to September 5, 1906. November 3, 1906, Catherine Brandenburg presented and surrendered these certificates to the bank with a letter as follows, “Dear Sirs,—It is my wish that you put all the money I have in your bank into my wife’s name, I am not able to come. Peter Brandenburg.” She took a certificate of deposit in her own name for the amount, which was paid her November 23, 1906, about nine months before her husband’s death. The records of the Ottawa Banking and Trust Company show that on March 1, 1907, there was opened in that hank a savings account in the name of Mrs. Peter Brandenburg and a signature card made by officers of the bank, showing that both she and Peter Brandenburg were authorized to draw against the account. The deposit slip of that date shows that Peter Brandenburg deposited to that account $2,000. The records further show that on June 1, 1907, there was withdrawn from that account $15 and receipt therefor signed “Peter Brandenburg owner of said bank book—Mrs. Brandenburg.” This signature, except the words “owner of said bank book” which were printed, is proven to be in the handwriting of Mrs. Brandenburg. The bank records of that account show only these transactions in the lifetime of Peter Brandenburg. After his death Mrs. Brandenburg made other deposits to the same account and at different time withdrew sums therefrom, giving receipts signed “Katherine Brandenburg owner of said bank book,” and on June 6, 1908, she withdrew the balance of the account. Appellants’ counsel insist that under these facts the fund in each of these banks was, and remained the property of Peter Brandenburg and his estate; that there is no evidence of a gift of either fund to Mrs. Brandenburg and whatever Peter Brandenburg’s intention may have be'en, there was no delivery sufficient to constitute a change of ownership, and they cite Telford v. Patton, 144 Ill. 611, and numerous other cases, holding that a gift of a deposit in a bank to be valid must be accompanied by a delivery of the certificate, bank book or other evidence of the account and that the deposit of funds in the name of another without such delivery in the absence of proof of the intent of the depositor, does not create a gift to such other of the sum deposited. The court said in Telford v. Patton, supra: “In most cases where a deposit of this character is made as a gift, there are contemporaneous facts or subsequent declarations by which the intention can be established, independently of the form of the deposit. We are in-. dined to think that, to confer a gift from the form of the deposit alone would, in a great majority of cases, and especially where deposit was of any considerable amount, impute an intention which never existed, and defeat the real purpose of the depositor.” In this case there is proof of contemporaneous facts and subsequent declarations aiding to establish the intention. Deceased had for many years before his death intended the distribution of his property in his lifetime among other members of his family. In 1896 and 1900 he conveyed his lands to his wife and children severally, deeding his wife one hundred acres out of about eight hundred acres then disposed of; she joined in those conveyances. It appears from the testimony of John B. Marshall, who frequently transacted business for deceased, that in June, 1907, he assisted deceased in assigning certain notes and mortgages to his wife, and that deceased was at that time endeavoring to arrange his property so that the boys could not make his wife trouble, and from the testimony of Jacob O. Warner that he saw deceased in July, 1907, and was told by him that he left everything to his wife, except what he gave to Ms children. Tliis intention on the part of deceased to dispose of his property in his lifetime is important in construing his acts in relation to the two bank accounts. There is little room for question in the matter of the $3,000 deposited in the name of deceased in the Farmer’s State Bank of Somonauk. This money was by his order transferred from his account to his wife’s account November 3,1906, and drawn out by her November 23,1906, eight or nine months before her husband’s death. There is no evidence in the record concerning this transaction except this mere fact of the transfer of the property and withdrawal by Mrs. Brandenburg. Evidence of handling money or transfer of money from one party to another does not, unexplained, create any inference of indebtedness on the part of transferee. It may be her own; it may be the payment of a debt; it may be a fund transferred for convenience, and the law is well settled that such proof creates no inference that the money in the hands of the receiver is the money of the giver. 27 Cyc. 829. We may infer in this c.ase that the transfer was intended as a gift, and as part of the plan of deceased to dispose of his property in his lifetime, or that he was indebted to her in that amount; or that she was using money for some purpose of his and did SO' use it.

We cannot infer from that evidence that at the time of Peter Brandenburg’s death this fund, that had passed into his wife’s possession several months before, was a part of his estate.

In the Ottawa Banking and Trust Company matter the evidence shows a deposit by deceased in the name of his wife March 1, 1907; that he as well as his wife, was authorized to make withdrawals from the account; that his wife did make one withdrawal in his lifetime in his name, written by her over the printed words on the blank receipt, “Owner of Bank Book.” After his death, she collected this fund as her own and withdrew it from the bank. There is no evidence as to this particular transaction except the record of the bank. A copy of that record was introduced in evidence, produced by the cashier of the bank. He testified that he knew nothing about the transaction, except what he learned from those records. Defendants’ counsel objected to the record as evidence, waiving any objection to the use of a copy instead of the record itself. If the record was competent evidence, we may infer from it that Mrs. Brandenburg had possession and control of the bank book. The $15 withdrawn in the lifetime of deceased in his name appears to have been withdrawn by her, and we may presume that she had possession of the bank book and presented it to the bank at the time of such withdrawal. The record also shows that withdrawals were made by her after the death of her husband and receipted in her name, written over the same' words “Owner of Bank Book” printed on the withdrawal slip. It has been held that a deed produced by a grantee after the grantor’s death is presumed to have been delivered in the grantor’s lifetime (Lines v. Willey, 253 Ill. 440) and that presumption prevails though the parties to the instrument were, in the lifetime of the grantor, members of the same family. Schroeder v. Smith, 249 Ill. 575; Inman v. Swearingen, 198 Ill. 437. Under the evidence we may presume the bank book was in the possession of Mrs. Brandenburg in the lifetime of deceased; and that it remained in her possession and under her control up to the time of his death. If this be so, and the transaction intended as a gift, nothing further remained to be done to execute it. Or, it may be that the deposit was in payment of a debt, or for any one of the several other purposes for which moneys in the common course of business are transferred from one person to another.

It appears that Mrs. Brandenburg was the second wife of deceased. They had been married about twenty years before his death. It is claimed by appellants’ counsel that she had no property at the time of her marriage and had about $40,000 after the death of her husband. This may be true. It is very likely that she derived this property from her husband. It may have been more than she would have received under the law if her husband had not distributed his estate in his lifetime, and had died intestate. He may have distributed his property quite unequally among his wife and children, with or without good reason therefor. It is sufficient that the record shows he was competent to do business and there is no evidence of undue influence exercised upon him and he had the undoubted right as against the complainants, his children, to make such distribution of his property as he saw fit. The trial court properly entered a decree dismissing the bill for want of equity. That is the legal effect of the decree and it is not material whether the trial court by the use of the words “want of jurisdiction” coupled with the words “want of equity” in the decree intended that there were some matters involved that it had not jurisdiction to consider. We have examined the evidence bearing on every question presented by the pleadings and conclude there is no evidence entitling complainants to any relief. We find no reversible error in the record. The decree is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Cabnes

license: Public Domain

text:
    The People of the State of Illinois, Defendant in Error, v. William Mullen, Plaintiff in Error.
    Gen. No. 5,693.
    1. Criminal law—when errors waived. Errors assigned on the record but not urged or suggested on appeal are waived.
    2. Assault—self defense. The Criminal Code, §§ 148 and 149 relating to self defense must be construed together.
    3. Criminal law—when party cannot complain of instructions. A party cannot complain that certain instructions are erroneous where his instructions contain the same defect.
    4. Assault—self defense. Where defendant testifies that he used only the force necessary to defend himself it is not error to instruct both as to the law of necessary self defense and of apparently necessary self defense.
    5. Criminal law—instructions. Where none of several instructions as to self defense .direct a verdict, even if part thereof, which relate only to the law of necessary self defense, standing alone are erroneous, such error is cured when other instructions fully give the law applicable to apparently necessary self defense.
    6. Criminal law—abstract instructions. An instruction giving an abstract proposition of law is not erroneous if not misleading.
    7. Assault—self defense. In a prosecution for assault with intent to do great bodily injury, where there is evidence that defendant made- an attack after the complaining witness ceased to attack him, the People have a right to an instruction on the theory that the defense of necessary self defense is not established if the jury believe such evidence.
    8. Criminal law—instructions. Where the words “If you believe from the evidence” are used in the first clause of an instruction, it is not necessary to repeat the restriction, “from the evidence,” in subsequent clauses.

      9. Cbiminal law—when instructions not objectionable as assuming that defendant committed act mentioned therein. An instruction which only purports to declare a principle of law applicable to the case is not objectionable on the ground that it assumes that defendant committed the act mentioned therein.
    Error to the Circuit Court of Grundy county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 12, 1913.
    Rehearing denied April 15, 1913.
    H. B. Smith and Graves & Gibbons, for plaintiff in error.
    C. F. Hanson, for defendant in error.
   Mr. Justice Cabnes

delivered the opinion of the court.

Plaintiff in error was indicted by the Grand Jury of Grundy county for an assault on one W. S. Golden, with intent to commit murder, the indictment containing counts for an assault with a deadly weapon with intent to do great bodily injury, where no considerable provocation appears. He was tried and convicted of the lesser offense. Motions for a new trial and in arrest of sentence were overruled and he was sentenced by the trial court to seven months ’ imprisonment in the county jail and fined $125 and costs of suit. He sues out this writ of error to review the judgment and in the briefs counsel file here argues only that the evidence does not support the judgment and that the court erred in giving certain instructions for the People.

The affair took place in a saloon in Gardner, Grundy county, Illinois, in the evening of July 8, 1911. Plaintiff in error and Golden had been in the saloon most of the day drinking and had some slight quarrel after supper. In the early evening Golden left the saloon to go to the hotel kept by Mullen and his wife near by, plaintiff in error still remaining in the saloon. Golden soon returned and an altercation took place between them in the front part of the saloon which was partitioned off from the bar. No witness, other than the parties, saw the beginning. The statement of each party as to what occurred was in evidence before the jury. Golden’s statement is that he was in the saloon drinking with Mullen; got into an argument; went down to the hotel to pack his grips and leave; Mrs. Mullen told him there was a telephone call for Mullen; he went back to the saloon and told Mullen his wife wanted him; Mullen told him to mind his own business; he went back to the hotel, told Mrs. Mullen that Mullen was busy; she said “Go back and tell him he has got to come now;” that he went back to tell him; laid his hand on Mullen’s shoulder and told him to come on, when Mullen struck him with a knife; Golden then grabbed Mullen by his two wrists and the saloon keeper separated them. Mullen’s statement is that he was in the saloon with Golden drinking; that they had some dispute; that Golden grabbed him by the arm and was taken away by a third party; that he Golden, then threatened that he would go to the hotel and pay up and come back and get him, and left; and he, Mullen, stayed in the saloon fifteen or twenty minutes; was standing at the cigar case in front of the bar with a small knife in his hand clipping the end of a cigar, when Golden came in the front door hurriedly, made a grab at him and a threat; seized him by the collar and threw him into the cigar case and he then struck Golden with his knife; that they were struggling and he tried to get away from Golden when the saloon keeper came in and separated them; that his arm was cut and that he used no more force than necessary in repelling the assault.

Mullen was arrested and there was a preliminary trial before a justice of the peace. Golden then testified, and afterwards, before the trial on the indictment, died from some cause other than the wounds he received. Evidence of his testimony before the justice was introduced in the trial court, over the objection of counsel. Exception was properly taken and error assigned on the record that the court erred in admitting improper testimony for the People, but counsel does not urge or suggest that subject here, therefore the error, if any is waived. Alleged errors, not stated or suggested in appellant’s brief, will not be considered even though assigned on the record. Lewis v. King, 180 Ill. 259; City of Joliet v. Le Pla, 109 Ill. App. 336.

It appears from the testimony of the physician to whom Golden was taken immediately after the affair, that serious knife wounds were inflicted upon him which, had they been slightly different in location on the body would have resulted in death. There was much conflict in the evidence, the statement of each party being to some extent corroborated, and as said by the Supreme Court in Gainey v. People, 97 Ill. 270, cited by counsel for plaintiff in error on another point, “The law, whether wisely or unwisely, entrusted the consideration and decision of that question to the jury, and when it, having honestly, according to the best lights before it, performed that duty, its determination must be accepted as conclusive, unless it is reasonably clear that an error has been committed.” There was evidence in the record, other than the testimony of either Mullen or Golden, to warrant the verdict if believed by the jury. We think it is not a case where the court would be justified in reversing for want of evidence to support the verdict.

The giving of certain instructions for the People is urged as error, and it is urged that the instructions on the law of self defense ignore the doctrine of apparent danger. The law is well settled in this state that to justify self defense, the danger need not be real, the act need not be absolutely necessary; it is enough if the circumstances were sufficient to excite the fears of a reasonable person, and the defendant acted under the influence of those fears and not in a spirit of revenge; in short that sections 148 and 149 of onr criminal code must be construed together.

The court at the instance of the People gave three instructions on the question of necessary self defense. They each state an abstract proposition of law and inform the jury that a defendant acting in self defense has no right to use any unreasonable or wtnecessary force. The court also, at the instance of plaintiff in error, gave to the-jury an instruction as to what force may lie used in repelling an attack, saying, “If it be necessary to preserve the life of the person assaulted, or to prevent great bodily injury to him.” This instruction was also an abstract proposition of law. The testimony of plaintiff in error as abstracted by his counsel reads: “I did not use any more force in scuffle than necessary to defend myself.” Each party on the trial seems to have had in mind the question of necessary self defense, and each asked the court to instruct the jury as to the law applicable to a cause where the defense is in fact necessary, and hot merely apparently necessary. Plaintiff in error has no ground to complain that the court instructed the jury as to such a condition of affairs.

“A party cannot complain of an error in instructions when the same error is found in the instructions offered by the complaining party.” McInturff v. Insurance Co. of N. A., 248 Ill. 92. But aside from this consideration, assuming that the instructions complained of, standing alone are bad because they ignore the doctrine of apparent danger, similar instructions were before the Supreme Court in Gainey v. People, 97 Ill. 270, and an instruction for the People ignoring the law of apparent danger was held bad “If considered as an independent instruction and not as a part of a series of instructions,” but it was held that the jury could not have been misled by the instruction because they “were distinctly told in a number of instructions that it was not necessary that the danger should be real, but that it was sufficient if it was apparent.” In this case the court, at the instance, of plaintiff in error, very fully in three different instructions gave the jury the law applicable to a case of apparent danger, reasonable apprehension that the act was necessary, telling them it is not necessary to the right of self defense that the danger should, in fact, exist; it may be only apparent and not real. That the person threatened with such danger has the same right to defend against it and to the same extent that he would have were the danger real. There was no error in giving instructions covering both the law of necessary self defense and the law of apparently necessary self defense. Appleton v. People, 171 Ill. 473. None of these instructions directed a verdict, therefore under often repeated decisions they must be considered as a part of a series. It is objected that these instructions are abstract propositions of law and therefore bad, but the eleventh instruction given for plaintiff in error is not only one of necessary self defense, but is also an abstract proposition of law. “It is not error to give an abstract proposition of law'to a jury as an instruction if it will not mislead them.” Anthony Ittner Brick Co. v. Ashby, 198 Ill. 562. The eleventh instruction given for the People is also complained of. It reads, “The court instructs the jury that even if they believe from the evidence that Golden made the first attack upon the defendant and assaulted the defendant with a knife still if you further believe that the said Golden afterwards ceased to attack the defendant, and after the defendant and Golden were separated the defendant again attacked Golden at a time when the said Golden was not making any attack upon the defendant, then you are instructed that the defense of necessary self defense is not established in law.” A similar instruction was before the court in Von Reeden v. Evans, 52 Ill. App. 209, and the court speaking through Justice Boggs said it is only by a forced and strained construction that even an implication that the only self defense of which the defendant could avail himself is necessary self defense may be drawn and that the law of apparent danger was so clearly stated in other instructions that it was unreasonable to suppose the jury were misled. There was evidence tending to show that Golden ceased to attack the defendant; that the defendant and Golden were separated and the defendant again attacked Golden at a time when Golden was not making any attack upon him, and a witness who came into the saloon after the struggle began testified that Mullen struck over the shoulder of the saloon keeper who was separating them and hit Golden. Therefore the instruction was not bad as suggesting a condition of affairs upon which there was no evidence. The People had a right to an instruction on that theory of the case. It is also objected that this instruction reads “If you further believe,” and does not state, if you further believe from the evidence. The words “from the evidence” were used in the first clause of the instruction and it was not necessary to repeat this restriction. Village of Altamont v. Carter, 196 Ill. 286.

It is objected that instructions given for the People are bad, not only as abstract propositions of law, but that the same instructions assume that the defendant committed the act mentioned in the instructions. An instruction that only purports to declare a principle applicable to the case is not subject to that objection. Von Reeden v. Evans, 52 Ill. App. 209. We find no reversible error in the record. The judgment is therefore affirmed.

Affirmed.


author: Mr. Justice Carnes

text:
    Joseph Schlitz Brewing Company, Appellant, v. Alfred Travi and Louis Corstorta, Appellees.
    Gen. No. 5,698.
    1. Contracts—purchase and sale of beer. A contract whereby defendant agrees to buy all the beer used in his saloon from complainant, who agrees to furnish it at a certain price, is good.
    2. Contracts—sufficient consideration for contract to sell only one hind of beer. That complainant furnishes defendant the use of certain fixtures is sufficient consideration for defendant’s promise not to sell any other beer than that manufactured by complainant.
    3. Injunctions—breach of negative covenant. Equity may enjoin the breach of a negative covenant, though it cannot specifically enforce an accompanying affirmative covenant.

      4. Injunctions—motion to dissolve temporary injunction. Where a bill is filed to enjoin the sale of beer other than that furnished by complainant at a certain saloon, a motion to dissolve the tern' porary injunction is properly sustained when supported by an affidavit showing that there is no saloon located on the premises described.
    5. Equity—when improper to dismiss bill without a trial on the merits. Where a bill is filed to enjoin the sale of beer contrary to a certain contract, there being no answer filed, it is error to dismiss the bill for want of equity on an affidavit of defendant that he never executed the contract.
    6. Equity—when improper to dismiss bill. Where a bill alleges facts, which if true entitle complainant to the relief prayed, even though such relief be by injunction only, and a motion to dissolve is granted upon a consideration of ex parte affidavits, the bill should be retained for a final hearing on the merits.
    Appeal from the Circuit Court of Putnam county; the Hon. Theodore N. Green, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed in part, reversed in part, and remanded with directions.
    Opinion filed March 12, 1913.
    James J. Conwat, for appellant.
    W. A. Panneck, for appellee.
   Mr. Justice Carnes

delivered the opinion of the court.

This is a hill in equity filed February 28, 1912, in the Circuit Court of Putnam county by appellant against appellees for an injunction restraining appellees from selling beer other than that furnished by appellant in the saloon occupied and operated by appellees in the village of Standard in said county. A temporary injunction issued in vacation on an order of the master in chancery; afterwards the court on motion of appellees and on affidavits read, dissolved the injunction and dismissed the bill for want of equity. Appellant assigns as error both the dissolving of the injunction and dismissing of the bill.

The bill set out in haec verba a written contract between appellant and appellee, Travi, dated October 20, 1911, in substance providing that Travi should handle exclusively beers manufactured and sold by appellant for the period of five years at block 7, lot 40, in the village of Standard, Illinois, and not within that period to purchase or sell other beer within one-half mile of said premises. That appellant in consideration of these promises by Tarvi should allow him the use of certain fixtures during the life of the agreement, reciting that in case of breach of contract, appellant does not intend to ask for a mandatory injunction, but it is agreed that it may have Travi enjoined in any court of competent jurisdiction from purchasing or using any other than Schlitz beer during the life of the agreement, as it would be impossible to ascertain with reasonable certainty damages resulting from a breach of the obligations. The contract is made binding upon heirs, executors, administrators and assigns and contains an agreement that Travi shall pay $6.50 per barrel on demand at time of delivery of beer and that appellant shall sell that brand of beer to Travi at that price during the life of the contract, subject to change in price if the internal revenue tax on beer should be increased; that if default be made in the payment for beer by Travi, appellant may refrain from furnishing other beer so long as such default continues and such failure should not be held a breach of the contract by appellant, or a waiver of any of its rights thereunder. The contract purports to be signed by Travi and authorized agents of appellant.

The bill avers that appellant loaned and delivered to Travi the fixtures described in the contract and he immediately installed the same in his said saloon and has continued to use them there; that shortly after the execution of the contract and delivery of the fixtures, Travi refused to purchase from appellant, to sell in his saloon, all beer sold by him, but purchased only small quantities for that purpose of appellant, purchasing the larger part of the beer so sold from other parties; avers that Travi has pretended to take into partnership with him in said saloon business, the appellee Louis Corstorta, and they are now representing' themselves sole proprietors and owners of said saloon business; that Corstorta had notice of appellant’s rights in the premises and appellees have both been using said fixtures; that they have pretended to lease said premises to one Henry Hoerner and on February 12, 1912, executed a lease in writing to him for a term of three years, providing that he shall take possession March 1,1912, and acknowledging payment by him of a year’s rent in advance, but that such payment was made by check of Hoerner and he has stopped payment of said check and is therefore not liable to loss or injury if said lease is ordered canceled avers that each of appellants is financially irresponsible; waives answer under oath; prays that appellee may be ordered to surrender to Hoerner said lease and enjoined from selling and offering for sale in the saloon in the village of Standard, lately occupied and operated by the defendant, Travi, and now occupied by the defendants, Travi and Corstorta, any beer or beers not manufactured and sold by appellant, and from disposing of said saloon for the purpose of permitting other beers to be sold in said saloon and from surrendering said saloon or the premises to said Hoerner in accordance with the terms of said lease and for other relief; prays for temporary injunction and for summons.

Briefly stated, the contract provides that Travi and his assigns should buy beer of appellant for sale in his saloon; that appellant would sell beer for such purposes at prices named, but does not expressly stipulate the quantity of beer to be furnished and sold or the time of delivery, and contains a positive negative covenant by Travi that no other beer should be sold on said premises, or within a half mile thereof, by him or his assigns. The contract is reasonably construed as one for purchase and sale of the requirements of Travi and his assigns for use in his saloon business at the place named; such contracts have often been held good in this state. National Furnace Co. v. Keystone Mfg. Co., 110 Ill. 427, and later cases. The fixtures furnished by appellant and used by appellee afford also a consideration for the undertaking on the part of appellee. We conclude that the agreement not to sell other beer was supported by a sufficient consideration.

The law/is well settled that equity may interfere by injunction'to prevent the breach of a negative covenant, although it cannot specifically enforce an accompanying affirmative covenant. High on Injunctions (4th Ed.) sec. 1164, and following sections; Anheuser-Busch Brewing Ass’n v. Dwyer, 150 Ill. App. 315; Welbourn v. Goggill, No. 17792 (1st Dist.),-Ill. App.

The bill on its face sets out a negative covenant, enforceable in equity. The court was advised by affidavits read on the hearing that the description in the contract of the premises on which the saloon was located was incorrect. That in fact, there were no premises in the village of Standard to which that description would apply, therefore there was no error in dissolving the temporary injunction; but if the bill was good on its face, and we hold it was, it should not have been dismissed for want of equity, but should have been retained for a trial on the merits. It is said in appellant’s brief that the hearing in the trial court was on “Motion to dissolve the injunction and an agreement that the case proceed the same as if an answer had been filed.” No such agreement appears in the record. It does there appear that appellees’ counsel entered a special appearance for the purpose only of moving to dissolve the temporary injunction that they presented affidavits showing that there was no such real estate as that described in the contract, and the affidavit of Travi denying that he executed this contract, or any written contract whatever with appellant; that appellant read an affidavit of one of its agents stating that said contract was executed by Travi and that the description of the premises was furnished by Travi. No answer was filed and the court not only granted the motion of appellees to dissolve the temporary injunction, but so far as the record shows, of its own motion dismissed the bill for want of equity and allowed appellant’s exception to its action in so doing. There may have been other and further agreements at the time of the hearing, but we can consider only those disclosed by the record.

If the court treated the motion to dissolve as a demurrer the allegations of the bill were confessed by the demurrer and in disposing of the bill he could not know that the premises were misdescribed; that question could only be raised by answer, affording the complainant opportunity to amend its bill. Where the bill alleges facts, which if true, entitle the complainant to the relief prayed, even though such relief be by injunction only, and a motion to dissolve is granted upon a consideration of ex parte affidavits, the bill should be retained for a final hearing on the merits. Kallista v. Ahalt, 151 Ill. App. 60, and cases there cited. The controverted questions presented by the affidavits, whether Travi in fact executed the written contract and if he did, whether there was failure on the part of appellant to furnish beer that would amount to a breach on its part, should not be decided on ex parte affidavits, but should be determined by the court on issues properly made and evidence introduced under the rules .and practices of chancery procedure.

The order dissolving the injunction is affirmed and the decree dismissing the bill reversed, and the cause remanded with directions to the trial court to permit appellant to amend its bill if it so desires, and for further proceedings not inconsistent with this opinion.

Affirmed in part and reversed in part and remanded with directions.


author: Mr. ' Justice Carnes

text:
    Charles Houck et al., Appellees, v. Benjamin D. Herrick, Appellant.
    Gen. No. 5,704.
    1. Future interests—when legacy does not violate law of perpetuities. A legacy which is made a charge on certain real estate and is to be paid by the devisee of the fee within three months after the administration of the estate is closed, provided there is no litigation affecting the title of the devisee, is an absolute gift, with the time of payment only postponed and does not violate the law of perpetuities.
    2. Future interests—when legacy vests. Where futurity is annexed to the substance of a gift, the vesting is suspended, but if it appears to relate to the time of payment only, the legacy vests instanter.

    3. Whxs—where land is charged with legacies. Where a devisee takes the fee charged with certain legacies she becomes personally liable to pay them.
    4. Wiixs—right to enforce legacy charged on land. A legacy charged on land may be enforced in equity by proceedings analogous to foreclosure of a mortgage without resorting to the personal liability of the devisee.

      5. Wills—who may be defendants in a bill to enforce payment of legacies charged, on land. In a bill to enforce payment of certain legacies charged upon land, a devisee who has sold her interest is properly made a codefendant with the owner and it is error to sustain her demurrer to the bill.
    6. Wills—when land is insufficient to pay legacies. In a bill to enforce payment of certain legacies charged upon land, a devisee who has sold her interest, may be liable for the deficiency if the amount of the legacies is not raised by the sale of the land.
    7. Wills—purchaser of land charged with legacies assumes no personal liability. Where a testatrix devises certain land to her husband for life and the remainder in fee, charged with certain legacies, to her niece and the husband renounces the will and takes one half as heir, he assumes no personal obligation to pay the legacies by purchase of the other half.
    8. Wills—legacies. A testatrix has no power to charge the half of her estate that goes to her surviving husband on his renouncing the will, with the payment of legacies and the attempt to do so-only effects a charge on the half that she has power to so charge.
    9. Wills—when legacies are a charge on part of land. In a bill to enforce payment of certain legacies, where a husband renounces his wife’s will and as heir takes one-half of certain land charged in the will with the legacies, and purchases the other half from the devisee, it is error to order a sale of the whole tract since the legacies were only a charge on half of it.
    10. Equity—power of court to adjust equities on renunciation of a will. Under R. S. chap. 3, sec. 79, courts have power to adjust equities arising among legatees from the renunciation of a will.
    Appeal from the Circuit Court of Woodford county; the Hon. George W. Patton, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 12, 1913.
    Harry Thom: and A. F. Goodyear, for appellant.
    John F. and Vance C. Boswobth, for appellees.
    H. E. Torrance, for appellee, Lizzie Grove Byan.
   Mr. ' Justice Carnes

delivered the' opinion of the court.

Emily Houck Herrick, a resident of Woodford county, Illinois, died November 16, 1909, testate, owning certain real estate, including the west half of the southeast quarter and the southeast quarter of the southeast quarter of section six, township twenty-eight, north range one, in said county, also described as the old home farm. Her will was duly probated in the County Court of Woodford county and her estate declared settled. By the fifth clause of her will, she gave to her husband, Benjamin D. Herrick, in lieu of all his statutory rights' in her property, this and other real estate “for and during his natural life, or so long as he remains a widower.” By the sixth clause she provided that upon the termination of said estate of her husband, by his death, her nephew, William E. Herrick should have an estate for his life in said home farm, but if the estate of her husband be terminated in any other manner than by Ms death, then the sixth clause to be null and void. By the seventh clause she devised the remainder in fee of said home farm to her niece, Lizzie Grove Byan, or in case of her death to her descendants, “subject, however, to certain legacies named in the next clause of my will, which I make a charge upon said real estate so described.” By the eighth clause she bequeathed to the children of her deceased brother, John Houck, each the sum of $200, and directed “that it be paid to them, and each of them, by the owner or owners of the fee of the premises last described in the proportion to their interest therein within three months after the administration of my estate is closed,” and provided there be no litigation then pending affecting the title of Lizzie Grove Byan, or her descendants, in said premises. The will contained other provisions giving other property to these and other persons named. The six children of the brother, John Houck, filed an amended bill to. enforce payment of their legacies of $200 each, maMng defendants thereto Benjamin D. Herrick and Lizzie Grove Byan. In their bill they recite the will; aver the death of testatrix, leaving no child or descendants; probate of the will; the close of the administration of the estate; the renouncement of the husband of the provisions of the will in his favor, and election to take his legal share of the estate; the conveyance of Lizzie G-. Ryan by quitclaim deed of her interest in said home farm to the husband, Benjamin D. Herrick, all more than three months before the filing of the bill; and that no litigation is or has been pending affecting the title of Lizzie G-. Ryan in said land. Aver that said $200 legacies have not been paid, nor any part thereof, though demanded .of said Benjamin D. Herrick and Lizzie Q-. Ryan, but that each had refused to pay said legacies, or any part thereof and still refuses; pray that Benjamin D. Herrick and Lizzie Gr. Ryan be required to pay said legacies, and in default, said premises or so much thereof as may be necessary, be sold to pay the same; and for general relief.

The defendants, Lizzie Gr. Ryan and Benjamin D. Herrick, each demurred to this bill. The demurrer of Lizzie Gr. Ryan was sustained by the trial court and bill dismissed as to her; the demurrer of Benjamin D. Herrick was overruled he elected to stand by his demurrer and the court entered a decree finding that upon the renunciation of Benjamin D. Herrick, he, and Lizzie Gr. Ryan, became seized in fee of said premises, each an undivided half thereof; that by the quitclaim deed from Lizzie Gr. Ryan to Benjamin D. Herrick, he became the sole owner of said premises and was such owner at the time of the closing of the administration of the estate and was the “owner or owners” of the fee named in the eighth clause of the will and required to pay said legacies; ordered that he pay said legacies within thirty days and costs of suit, and that in default, said premises, or so much thereof as may be necessary, be sold by the master in chancery to satisfy said decreé. Benjamin D. Herrick appeals and assigns as error the overruling of his demurrer and the sustaining of the demurrer of Lizzie Gr. Ryan; the complainants assign as cross error the action of the court in sustaining* the demurrer of Lizzie Gr. Ryan and dismissing the hill as to her.

The facts presented by the bill, so far as they affect the question at issue briefly stated, are: That testatrix owning the home farm in question, devised the fee to Lizzie Gr. Ryan, subject to an estate for life or years in her husband, Benjamin D. Herrick, and gave $1,200 in legacies to the six complainants and expressly charged them on said land and not on the interest of either party in the land, but provided that the owner of the fee, should pay said legacies “within three months after the administration of my estate is closed, provided that there is no suit or proceeding then pending, regarding or affecting the title therein of Lizzie Grove Ryan * * *, and if there be any such suit or proceedings then pending, then within three months after its final determination. ’ ’

It is argued by appellants that said legacies are void under the law of Perpetuities as the time fixed for payment might possibly have been delayed beyond the period limited by law; that Lizzie G. Ryan having accepted the provisions of the will in her favor, became personally liable to pay the legacies and there being no averment that she is insolvent, appellees have an adequate remedy at law, and a court of chancery is without jurisdiction in the matter; or if jurisdiction is entertained then she should be held primarily liable to pay the same and is a necessary party to the suit; that appellant having renounced the provisions of the will in his favor is in no way bound by any of its provisions; that there is no personal liability on him to pay the legacies, and even if they are treated as a charge on the land, it would only be on the half of the land that he procured by purchase and not on the half that he owns as the heir of his wife; that if there be a charge on the half of the land that appellant acquired by purchase, it should be for payment of half only, of the legacies.

If appellees took a vested interest in the two hundred dollar legacies on the death of testatrix, then there is no question of violating the rule against perpetuities. Appellees’ counsel say the legacies did not vest until the time of payment and cite Scofield v. Olcott, 120 Ill. 362, and Powers v. Egelhoff, 56 Ill. App. 606. If this were so it might require a careful investigation of the law of perpetuities, where the vesting of property is determined by the time of the settlement of an estate, as in the case of Johnson v. Preston, 226 Ill. 447. But we think it clear on the authority of those two cases and numerous other Illinois cases, that the legacies here in question, vested in appellees on the death of testatrix. There was an absolute gift to the legatees, with the time of payment only postponed. “If futurity is annexed to the substance of the gift, the vesting is suspended; but, if it appears to relate to the time of payment only, the legacy vests instemter.” Scofield v. Olcott, supra.

Appellees’ legacies were expressly charged on the land in question, and Lizzie Grove Byan taking the fee was expressly directed as owner of the fee to pay those legacies she accepted the provision in her favor and by that act became personally liable to pay the legacies, but they still remain a charge upon the land and appellees have a right to enforce this charge in a court of equity similar to the right of a mortgagee to enforce his lien by foreclosure, if he chooses to do so, without resorting to the personal liability of the maker of the note secured by the mortgage, or of any other party who may have become personally liable to pay the mortgage debt. It is familiar law that equity has jurisdiction in enforcing liens resulting from charges on property by will or by deed. Pomeroy Equity Jurisprudence, secs. 1244-1248; 40 Cyc. 2051. The method of raising the legacy is by the sale of the property charged in analogy to proceedings for the foreclosure of a mortgage. 40 Cyc. 2051. The attachment of personal liability upon the devisee by reason of his acceptance of the devise does not affect the lien of the charge upon the land or bar a proceeding against the land. 40 Cyc. 2056. Jurisdiction of courts of equity in such cases has been in this state long established. Mahar v. O’Hara, 9 Ill. 424; Spangler v. Newman, 239 Ill. 616.

Counsel for appellants contend that the devisee Lizzie Grrove Eyan being personally liable to pay these legacies, and being under the pleadings presumably solvent, resort must be had to her personal liability before resorting to the land, and endeavor to sustain this contention by citation of authorities, among them Mahar v. O’Hara, 9 Ill. 425; Dodge v. Manning, 1 N. Y. 298. In the first case it is true a decree went against the party personally liable and was not made a lien on the land, but in that case the legacy was not expressly charged on the land by the testator and it was conceded on the trial that the defendant was amply responsible and it was not sought to subject any certain tract of land to its payment. The second case was heard on appeal and reported in 11 Paige’s Chancery 155. It there appears that the party charged with the payment of a legacy has been given real and personal estate in the same manner and directed to pay a legacy out of said estate and had received ample personal estate. It was said that the personal estate was primarily liable for the payment of the legacy. The enforcement of payment of legacies charged on land by courts of equity has given rise to many varying conditions of facts and involved many parties owning interests in the lands sought to be subjected to the payment, and courts have entered various decrees protecting, as well as may be, in each case the rights of the parties thereto, but we find nothing in conflict with the general rule that a charge on land created by will may be enforced in a court of equity in a proceeding analagous to the foreclosure of a mortgage.

Lizzie Grove Byan being personally liable to pay these legacies is in the position of a party personally liable to pay a mortgage debt and appellees had the right to bring her into this suit as codefendant with Benjamin D. Herrick the owner of the land on which the lien was created by the will. Scholten v. Barber, 217 Ill. 148. If the amount of the legacies is not raised by the sale of the land, a decree for the deficiency could properly be entered against her, the court therefore erred in sustaining her demurrer to the bill.

The surviving husband Benjamin D. Herrick took one-half of the land in question as the heir of his wife free from any change created by her will. He assumed no personal obligation to pay these legacies by the purchase of the other half unless his contract of purchase so provides and there is no allegation in the bill that it did, the court erred in ordering him personally to pay the legacies. The testatrix had no power to charge the half of her estate that went to her surviving husband on his renouncing the will, with the payment of legacies. The attempt to do so only effected a charge on the half that she had power to so change and operated as a disposition pro tanto of the realty so charged. Carper v. Crowl, 149 Ill. 465. Therefore the situation is like one in which a party mortgages land a part of which he does not own to secure a debt. The lien should be declared not on the entire land but on the half of it that testatrix had the power to subject to the payment of the legacies. It was error to order the sale of the whole tract.

There may be equities arising among the various legatees from the fact of renunciation. Courts have power to adjust equities in such cases under our Administration Act (chapter 3, sec. 79, Rev. Statutes; Lewis v. Sedgwick, 223 Ill. 213), but there are no pleadings in this case from which we are advised what, if any, such equitable rights may be. We hold that Lizzie Grove Byan is personally liable to pay the legacies in question; that Benjamin D. Herrick is not personally liable to pay them or any part thereof; that a lien capable of enforcement in this proceeding exists on that portion of the land taken under the will by Lizzie Grove Ryan and by her conveyed to Benjamin D. Herrick, and if insufficient to pay the legacies, a decree for the deficiency on proper showing at the proper time should be entered against her for such deficiency; that her demurrer to the bill should be overruled, with leave to answer if she is advised so to do; that Benjamin D. Herrick also have leave to answer if he desires, and if either defendant claims equitable rights against the other growing out of the matters here involved, or if there are equities arising among the legatees named in said will because of such renunciation and the diminishing of legacies consequent thereto leave should be given if asked, to file appropriate pleadings to the end that the samé may be here determined.

The decree is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


author: Mr. Justice Carres

text:
    State Bank of Rock Island, Appellant, v. Charles H. Pope et al., Appellees.
    Gen. No. 5,708.
    1. Corporations—bin on note, payable out of surplus, must charge existence of surplus. A corporation issued a series of fifty “restricted treasury notes,” in which it “promises to the hearer” or registered holder, $1,000 subject to several conditions, one of which was that the principal “shall he paid only from the surplus of the company’s assets in excess of its co-existing other liabilities.” The corporation becoming insolvent with debts of $300,000, its capital stock being $100,000, the holder of six such notes filed a hill under section 16 of the Corporation Act to enforce personal liability of the directors for assenting to an indebtedness in excess of the capital stock. Held, that the promise being merely conditional, conferring a contingent lien on the corporate assets, remaining after the payment of its debts, failure to allege the existence of such a surplus and the fulfillment of all the conditions precedent on which the right of action depends, renders the bill bad on demurrer.
    2. Corporations—directors personally liable only to bona fide creditors. Officers of a corporation assenting to its incurring debts in excess of the amount of its capital stock are not personally liable, under section 16 of the Corporation Act, to a complainant who fails to show that he is a bona fide creditor of the corporation.
    3. Corporations—liability of directors before remedy exhausted against corporation. The personal liability of directors assenting to a corporate indebtedness in excess of the amount of capital stock for a claim which has not been reduced to judgment and where the remedy against the corporation has not been exhausted, is a question not authoritatively settled in this state.
    4. Equity—when allegation of title to instrument not certain. An averment in a bill that complainant is “the lawful holder and legal owner” of a non-negotiable instrument which is registered on the books of the corporation executing it in the name of another whose name is endorsed thereon, does not allege equitable title in complainant, with the certainty required.
    5. Equity—owner of beneficial interest must sue in own name: In equity, the owner of the beneficial interest not only may, but must sue in his own name.
    6. Assignments — endorsement of non-negotio,ble instrument. The endorsement of a name on the back of a non-negotiable note may or may not be intended as an endorsement for the purpose of transferring title.
    7. Parties—all holders of a series of notes, payable out of a surplus, are necessary parties. In chancery proceedings to enforce payment of a part of a series of “restricted treasury notes” of a corporation which are payable only out of the surplus of its assets over its indebtedness, all the holders of the remaining notes are necessary parties, because of the contingency of a pro rata distribution.
    Appeal from the Circuit Court of Rock Island county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 12, 1913.
    Rehearing denied.

      Certiorari denied by Supreme Court (making opinion final).
    J. T. & S. B. Kenworthy and Connelly & Connelly, for appellant.

      Shallberg & Harper and Peek & Dietz, for appellees.
   Mr. Justice Carres

delivered the opinion of the court.

A bill was filed in the Circuit Court of Bock Island county, April 22, 1912, against Charles H. Pope, A. E. Montgomery and Burton F. Peek, three directors of the Midland Motor Company, an Illinois corporation (which corporation was also made defendant), by the State Bank of Bock Island on behalf of the complainant and all other creditors of said corporation to charge the defendants, Pope, Montgomery and Peek, for the debts of the corporation under section 16, of our “Corporations Act” which provides “If the indebtedness of any stock corporation shall exceed the amount of its capital stock, the directors and officers of such corporation, assenting thereto, shall be personally and individually liable for such excess, to the creditors of such corporation.” The trial court sustained demurrers to the bill and the complainant standing by its bill, the bill was dismissed for want of equity, from which action of the court this appeal is prosecuted.

It appears from'the allegations in the bill that the Midland Motor Company on November 1, 1908, issued fifty notes each reading as follows:

“Midlard Motor Compart,
Bestricted Treasury Note.
“Three years after date, for value received, the Midland Motor Company, a corporation, organized and existing under and by virtue of the laws of the State of Illinois, with its principal place of business in the City of East Moline, in' said state, hereby promises to the bearer, or, if registered, as hereinafter provided, to the registered holder hereof, the sum of one thousand dollars, lawful money of the United States at the People’s Savings & Trust Company of Moline, Hlinois, with interest on said sum at the rate of seven per cent. (7 per cent.) per annum, payable semi-annnally, according to the tenor and effect of six interest coupons for thirty-five dollars each, attached hereto, signed by the President of said company, and made a part hereof. This is one of a series of fifty, one thousand dollar ($1,000.00) redeemable," restricted, deferred treasury notes of said company, numbered one to fifty inclusive, issued by authority of the Board of Directors, on the 19th day of October, A. D. 1908, and is subject to the following conditions and restrictions, viz:
“(1) Redeemable at option of company on any interest pay day.
“(2) The principal of this note except as herein otherwise provided, shall be paid only from the surplus of the company’s assets in excess of its co-existing other liabilities, except capital stock, to which capital stock it shall always be preferred.
“ (3) In case of the insolvency, dissolution, or other winding up of the affairs of said company, its entire assets, after the payment in full of all other liabilities (including unpaid interest upon outstanding notes of this series), except capital stock, shall be applied so far as necessary pro rata in payment of the principal of all of the then outstanding notes of this series.
“(4) In no event shall this note be treated as a personal liability of or any claim hereunder be enforced in any way against any of the present or future stockholders of said company.
“(5) Dp on the request of the legal holder hereof, this note shall be registered upon the books of said company in the name of such holder, and thereafter, until otherwise registered, shall be transferred only by assignment.
“ (6) Agreement to keep plant and stock insured.
“In Witness Whereof, the said Midland Motor Company has caused this note to be signed by its President, and its corporate seal, duly attested by its Treasurer to be hereunto affixed and has hereunto attached coupons, as above stated, with the name of the President signed thereon, and has caused this note to be dated the first day of November, A. D. One thousand nine hundred and eight.
“Midland Motor Company,
By C. H. Pope, President.
“(Corporate Seal)
Attest:
A. E. Montgomery,
Treasurer.”

Appellant is the “Lawful holder and legal owner, for value,” of six of said notes and twelve of said coupons unpaid. There was endorsed on each of said six notes:

“No writing below except by an officer of the Midland Motor Company.
In whose name Registered
Date of Registry Registrar
Dec. 15,1908 E. H. Buyer C. H. Pope.
E. H. Buyer.”

The capital stock of the corporation wás $100,000, and after the issuing of said notes and before the filing of the bill herein, the indebtedness of the corporation aside from these notes was more than $300,000. The defendants Pope, Montgomery and Peek were three of the five directors of the corporation from its organization, Pope was president and Montgomery treasurer. E. H. Buyer in whose name the bonds were registered, was also one of the directors until August, 1909, when he resigned. The three defendant directors assented to all of said indebtedness.

The Corporation was at the time of filing the bill and for many months prior thereto insolvent, its debts far exceeding its resources, and wholly unable to pay off and discharge its liabilities due to various creditors. If these notes be not considered a debt whether it has assets sufficient to pay its indebtedness, or less or more, is not stated.

The contracts in question, omitting provisions not material to the issue here, are “Three years after date, for value received, the Midland Motor Company, ........ hereby promises to the bearer, or, if registered ........to the registered holder hereof, the sum of one thousand dollars,..................to be paid only from the surplus of the company’s assets in excess of its co-existing other liabilities, except capital stock, to which capital stock it shall always be preferred ......... In case of the insolvency......... of said company, its entire assets, after the payment in full of all other liabilities (including unpaid interest upon outstanding notes of this series), except capital stock, shall be applied so far as is necessary pro rata in payment of the principal of all of the then outstanding* notes of this series.”

It is clearly not an unconditional contract to pay money in any event; the words, to pay, are not used. It amounts to a lien on or right in the proceeds of the corporate assets remaining after the payment of its debts. If at the expiration of three years there should be sufficient of those assets after payment of debts, to pay the principal of these notes, then the holders were entitled to payment in full. If at that time the company was insolvent and there were only sufficient remaining assets to pay one-half of these notes, then the various holders were entitled to receive fifty cents on the dollar of the principal amount of the notes. It seems clear that these notes created no obligation on the part of the corporation to pay any part of the principal to the holder thereof, unless there were some' surplus after paying other indebtedness, or unless it had assets sufficient to pay its other indebtedness, and leave a surplus applicable to the payment of these notes. The promise therefore, is contingent, depending upon the amount of assets and liabilities of the corporation at the time when it is sought to enforce these obligations. The existence of a surplus is a condition precedent to any liability of the defendant company on these notes. Where a right of action depends upon a condition precedent, its fulfillment or a legal excuse for its nonfulfillment must be both alleged and proven and if such allegation be omitted, either in a declaration at law or a complaint in equity, the pleading will be bad on demurrer. 9 Cyc. 719; Meyers v. Phillips, 72 Ill. 460; Snell v. Cheney, 88 Ill. 258; Lyman v. Northern Pac. Elevator Co., 62 Fed. 891; City of Aledo v. Vincent, 59 Ill. App. 179; Lambe v. Heitmeier, 70 Ill. App. 455.

It is urged by appellee’s counsel that appellant has no standing on its bill because it is not averred that its claim has been reduced to judgment and its remedy exhausted against the defendant corporation; this question is not authoritatively settled in this state, but it is settled that appellees, as officers, cannot be held liable under the statute, for assenting to the creation of an indebtedness in excess of the amount of the capital stock, on a bill filed by a party who fails to show that it is a bona fide creditor of the corporation (Wolverton v. Taylor & Co., 157 Ill. 485;) therefore though this bill in failing-.to show that the complain-" ant is a judgment creditor may be good, it cannot be good on a showing that it is a creditor under certain conditions and'contingencies without alleging the existence of the conditions on which its rights depend.

Appellee may be in a different position as to the twelve coupons, they are not set forth or described further than above appears. It does appear from the recitals in the note that the coupons are not subject to some of the conditions and restrictions imposed on the principal debt; it does not affirmatively appear that they are unconditional promises to pay; it is not suggested in appellant’s brief and argument that they should be treated differently from the principal note, and no reason is suggested for distinguishing them therefrom. The allegations in the bill as to these coupons and their ownership were insufficient to give appellant a standing as the bona fide creditor of the defendant corporation. There is no allegation in the bill as to when or how appellant obtained these notes and coupons, it is said to be “the lawful holder and legal owner for value,” it is argued that this averment does not amount to a statement that it is the equitable owner and that the instrument by its endorsement or registration affirmatively shows that appellant is not the legal owner, but that E. H. Guyer, in whose name it was registered December 15,1908, is the legal owner; that the name E. H„ Guyer endorsed on the note, and the endorsement in no way alluded to or explained in the bill, cannot be taken as an assignment; also that the instrument is not negotiable and could not pass by assignment and that appellant has no standing as an equitable owner because it has not brought "itself within the provisions of our Practice Act permitting actions by equitable owners in their own name. This is a suit in equity and the owner of the beneficial interest not only may but must sue in his own name (Press v. Woodley, 160 Ill. 433); but the note is not a negotiable instrument, the coupons may or may not be, so far as the bill discloses. The name E. H. Guyer on the back of the note may or may not be intended as. an endorsement for the purpose of transferring title. It may well be doubted whether the bill alleges, with that certainty required in pleading a cause of action, the equitable title of appellant in the notes and coupons in question.

It is also argued that the hill on its face discloses other necessary parties defendant, that if a court of equity is to entertain jurisdiction to enforce the rights of the holder of a part of this series of notes against the corporation, that the holder or holders of the remaining notes of the series are necessary parties, that there might be, in case of deficiency of surplus to pay all the notes in full, the pro rata distribution among all the holders provided for in the contract. This position seems to us to be well taken. Various other questions are presented and argued, but in the view we take of the case it is unnecessary to decide them. In our opinion the bill failed to state a cause of action against the defendant and the trial court did not err in sustaining the demurrer thereto and dismissing the bill for want of equity.

The decree of the Circuit Court is affirmed.

Affirmed.


text:
    Sadie K. Dunshee, Appellee, v. Charles Dunshee et al., Appellants.
    Gen. No. 5,715.
    1. Partition—apportionment of solicitor’s fee. In partition proceedings, brought by a widow after renouncing the provisions for her in the will of her deceased husband, against the other devisees under the will and a minor grand-niece of deceased, who made claim as statutory heir on the ground that such renunciation rendered the estate intestate, a decree apportioning complainant’s costs and solicitor’s fee is affirmed on the ground that the rights of the parties were correctly set forth in the bill, and no good and substantial defense was interposed by the devisee defendants, and because the minor, being defeated in her defense, even though good and substantial, had no interest in the premises and could therefore not object to such apportionment.
    2. Partition—appointment of solicitor’s fee. Where the solicit- or for complainant in partition proceedings fairly and honestly represents the interests of all the parties, and defendants think it prudent to have their own counsel watch the proceedings so that no advantage be taken, they will be required to pay their own counsel and their proportion of the fee of complainant’s solicitor.
    3. Partition—apportionment of solicitor’s fee. The object of section 40 of the Partition Act is to allow an apportionment of solicitor’s fees against all persons in interest only in cases where it is not necessary for the defendants, or any of them, to employ counsel to protect their interest in the land.
    4. Partition—apportionment of costs. In order for complainant in partition proceedings to have his costs apportioned, it is not sufficient that he come within the mere letter of the statute in properly setting forth the rights and interests of the parties, if the solicitor acts in the proceedings otherwise in the interest of complainant and adverse to the interests of defendants, so as to make it reasonably necessary for them to employ counsel to protect their rights.
    5. Pabtition—“good and substantial defense.” The phrase “good and substantial defense,” in section 40 of the Partition Act, does not mean a successful defense nor one which is merely formal, frivolous and vexatious, and not undertaken in good faith.
    6. Pabtition—clouds may, but need not, be removed. Clouds may be removed from the title in a partition suit, but the statute does not require that it shall be done in order to entitle complainant to apportionment of solicitor’s fees.
    7. Pabtition—costs on appeal involving cloud on title. Where an appeal from a decree in partition proceedings did not affect complainant’s rights, but involved a cloud on the title of defendants, and the latter aided the contestant, they can make no valid objection to apportionment of solicitor’s fees on such appeal.
    8. Pabtition—amendment not preventing apportionment of costs. A bill for partition was amended by substituting the word “excepting” for “including” in the prayer, that in the event of failure to divide “the entire estate, including said homestead estate of your oratrix, may be sold.” Held, such correction of a clerical error affords no reason for refusing to apportion costs under the statute.
    9. Appeals and ebbobs—when certificate of evidence will not be stricken. Where the certificate of evidence does not show at whose instance it was filed, nor when it was signed, and is incorporated in the record at the instance of appellee, appellants, in moving to strike it from the record, because not filed in time, cannot complain of their own delay, and if appellee originally filed it, it will be presumed in support of the action of the trial judge, in signing it, that it was presented in apt time, and it then became a proper part of the record, even if signed after the time limited.
    Appeal from the Circuit Court of Carroll county; the Hon. Oscab E. Heabd, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 12, 1913.
    Henry Mackay, for appellants.
    F. J. Stransky, for appellee.
   Mr. Justice Carnes

delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court of Carroll county, taxing as costs $1,000 solicitor’s fee in a partition suit wherein the decree, fixing the rights and interests of the parties in the premises, was confirmed in Dunshee v. Dunshee, 251 Ill. 405. We refer to the report of that case for a full statement of the matters there involved and determined. All parties claim title under Bobert Dunshee, deceased. By his will he devised the land in question to his widow, the complainant. She renounced the provisions of the will and there being no child, or descendant, took one-half the real estate in fee; she filed her bill for partition, making seven defendants besides the tenant in possession, averring that she owned half of said real" estate as tenant in common with six of said seven defendants, who, she averred, owned the other half as devisees of the deceased, in proportions stated in the bill, and that the seventh defendant, Mary Dunshee, a minor, claimed some interest in the land, but in fact had none. Mary Dunshee appeared by her guardian ad litem and filed the usual, formal- answer, and was actively represented in the trial court "by counsel and contended that the renunciation of the widow had the effect of making the land intestate property, and that she was entitled to a portion thereof as the heir of Bobert Dunshee, or if the court should deny this contention, that she was entitled to take under the provisions of the will as one of the heirs óf Amasa Dunshee. Bobert Dunshee had other heirs than those named in the will as devisees of the property in question, therefore had she succeeded in her first contention, it would have been to the financial loss of each of the six other defendants. Had she succeeded in her second contention it would have been to the loss of three of the other six defendants. But the interest of the complainant, Sadie K. Dunshee, was not affected by the questions presented. They were important only to Mary Dunshee and the other six defendants, settling their relative interests in the undivided half of the land in question. The other six defendants appeared by counsel answered the bill and in various ways supported the contention of the minor. The trial court held the interests of the parties as stated in the bill and entered a decree accordingly; the minor only appealed and the decree was confirmed by the Supreme Court.

After the case was reinstated in the Circuit Court it proceeded to a sale of the land and distribution of the proceeds and to a decretal order allowing the solicit- or’s fee here complained of. That order recites the hearing of proofs and finds sufficient facts to support the allowance of solicitor’s fees under section 40 of the Partition Act. It recites that “the rights and interests of all the parties in interest were correctly set forth in the bill for partition filed for the complainant herein by said solicitor; that no good and substantial defense thereto was interposed by either or any of the defendants thereto” together with other findings, supporting the fixing' of the amount at $1,000. The decree was entered March 12, 1912; said six defendants prayed an appeal which was allowed “to either or any of them upon the filing of a bond by either or any * * * within thirty days from the entry of this decree, and the filing of a certificate of evidence herein within ninety days.” The three applicants filed a bond within the thirty days limited. The March term of court at which said action was taken adjourned June 7, 1912, and on August 27, 1912, in vacation after the intervening’ June term of the court, a certificate of evidence was filed, signed by the trial judge; it does not appear when it was signed or at whose instance it was filed, but it is incorporated in the record brought here at the instance of appellee. Appellants have moved to strike this certificate from the record because not filed within the ninety days limited and that motion has been taken by us with the case. If appellants filed this . certificate of evidence after the time limited, they cannot complain here of their own delay. If we assume that appellee filed it, and consider the question presented, we may presume in support of the action of the trial judge in signing the certificate that it was at least presented to him in apt time and being filed after the expiration of the ninety days, even if signed after that time, became a proper part of the record. Olds v. North Chicago St. R. Co., 165 Ill. 472; Banker v. Miller, 148 Ill. App. 182. If the certificate were stricken from the files then we must look to the decree to see if there is a sufficient finding of facts to support it, and as we have said before it seems to be so supported. The motion to strike the certificate from the record will be denied. There is no contention but the bill correctly stated the interests of the parties as finally determined. The contention is that a good and substantial, though unsuccessful defense, was interposed by the defendants and therefore the case does not fall within the provisions of the statute authorizing the apportioning of solicitor’s fees as costs. We are of the opinion that a defense within the meaning of the statute was interposed by the minor defendant, Mary Dunshee. A guardian ad litem was taxed and paid out of the general fund. In so far as the other defendants saw fit to aid her, they cannot be said in good faith interposed a good and substantial defense to the bill. The minor, Mary Dunshee, has no interest in the question now before the court. Had she some other interest in the fund from which the solicitor’s fee must be paid she might with reason, object. But we have presented here the case of a bill for partition correctly stating the title of all parties in interest and making defendant another party for the purpose of removing a cloud from the title; a reasonable but unsuccessful defense, made by that other party aided by defendants, not for the protection of their own interests but directly opposed to their interests in the land in question. It is not equitable that these defendants should be permitted by joining in an attack on their own title to defeat the right of the complainant to have her solicit- or’s fee taxed as costs where she was successful in defeating the adverse claim, not in her own interest but in the interest and for the benefit of the defendants objecting to the allowance of the fee. Section 40 of the Partition Act provides for allowance of solicitor’s fee “When the rights and interests of all the parties in interest are properly set forth in the petition or bill e * * unless the defendants, or some one of them, shall interpose a good and substantial defense to said bill or petition.” The object of the statute' is “to allow an apportionment of solicitor’s fees against all persons in interest in such cases, and such only, where it is not necessary for the defendants, or any of them, to employ counsel to protect their interests in the lands.” Habberton v. Habberton, 156 Ill. 444.

The statute has been construed in favor of equity and justice as applied to individual cases arising under it. It is settled that “good and substantial defense” does not mean a successful defense, nor does it mean one which is merely formal, frivolous or vexatious, and not undertaken in good faith. Metheny v. Bohn, 164 Ill. 495. That it is not sufficient that the complainant come within the mere letter of the statute in properly setting forth the rights and interests of the parties, if the solicitor otherwise in the proceedings acts in the interest of complainant and adverse to the interest of the defendants, so as to make it reasonably necessary for defendants to employ counsel to protect their rights in the premises. McMullen v. Reynolds, 209 Ill. 504. But though it may be thought prudent where the personal relations of the parties are unfriendly for defendants to employ counsel to see that the proceedings are regular and no advantage taken or sought, this would not justify a court in refusing to apportion the solicitor’s fee. “Where the solicitor for complainant fairly and honestly represents the interests of all the parties in the premises sought to be partitioned, there is, no necessity for defendants employing counsel. If, notwithstanding there is no necessity for it, defendants should conclude it would be wise to have their own counsel watch the proceedings, we see no hardship in their being required to pay counsel so employed by them, in addition to their proportion of the fee of the solicitor for complainant.” Searl v. Searl, 122 Ill. App. 129.

Clouds may be removed from the title in a partition suit, but the statute does not require that it shall be done in order to entitle the complainant to apportionment of the solicitor’s fee. It is not an essential part of a partition suit. Stollard v. Nycum, 240 Ill. 472; Sanford v. Sanford, 157 Ill. App. 350.

The Illinois cases have been so thoroughly cited and reviewed in the foregoing cases that they need not be further noted here. Under the authority of those cases the trial court was justified in apportioning the costs, including solicitor’s fees, among the parties in interest. The amount of the fee is not here in question. It was in accordance with the evidence and defendant’s counsel on the hearing said to the court that he made no objection to the amount of the fee.

It is argued that a decree fixing solicitor’s fees allowed by statute cannot be supported by a finding of facts embodied therein. This is material only if the certificate of evidence be not considered. We are aware of no such distinction and if there be one, as counsel suggests for the reason that the reviewing court ought to have the evidence before it that it might exercise its own judgment as to the amount of the fee, that could only effect a case where the amount of the fee was in question. It is contended, also, that solicit- or’s fees should not have been taxed because the original bill was amended. It appears that the bill was filed August 11, 1910, and prayed that in the event of failure to divide “the entire estate including said homestead estate of your oratrix may be sold.” After the issues were made up and on April 11, 1911, complainant asked leave to amend her bill, by substituting “excepting” for “including,” alleging inadvertence in using the word “including” in the original draft of the bill. The amendment was allowed and made. This amendment does not appear to have been induced or suggested by the defendants, but was the correction of a clerical error, such as would be granted as a matter of course in any chancery proceeding and affords no reason for refusing to apportion costs under the statute.

It is urged that solicitor’s fees should not be taxed against defendants as to costs made, or appeal taken by the minor, Mary Dunshee. The trial court in taxing the fee of solicitors took into account services performed in the Supreme Court on the appeal. As we have before seen, those services were entirely in the interest of the defendants. Complainant might have abandoned the case there without danger to her interest in the land. Under the order complained of she is charged with one-half of those services. It is certainly no hardship on defendants to be charged with the other half, and whatever the rule may be, in cases where an expensive contest is carried on as part of a partition suit with parties claiming an adverse interest, there is no reason in this case for denying solicitor’s fee to complainant, because a part of them were earned in a contest over the rights of the minor. The decree is affirmed.

Affirmed.