author: Mr. Justice Eldredge

text:
    A. M. Kaufman, Appellee, v. Jacob Miller, Appellant.
    1. Appeal and ereob, § 1339

      —when ground presented in motion for new trial presumed considered. Where a bill of exceptions contained nothing to show that the point, that the action of forcible entry and detainer in question did not lie but that the remedy of defendant, if any, was by ejectment, was not presented in the argument of the motion for a new trial, it will be presumed that it was considered by the court and not abandoned.
    2. Appeal and error, § 536*-—how failure of evidence raised. In order to preserve the point that there is no evidence to support a cause of action or defense, as a question for review by the Supreme Court, it is necessary to make a motion at the close of all the evidence for a directed verdict; but this rule does not apply to the Appellate Court, which has the same jurisdiction as the trial court to pass upon the facts.
    3. Appeal and ereob, § 601*—how sufficiency of evidence questioned. The question whether the evidence is sufficient to sustain the verdict may he raised for review by a motion for new trial; but the question so preserved would be one of fact, cognizable only in the Appellate Court and not a question of law for the Supreme Court.
    4. Forcible entry and detainer, § 9*—when provisions governing peaceable entry and unlawful detainer applicable. The second clause of section 2 of the Forcible Entry and Detainer Act (J. & A. If 5843), providing for the bringing of such an action when a peaceable entry is made and possession unlawfully withheld, is only applicable where the peaceable entry is made upon the premises that are in the actual possession of the complainant, or of those to whose rights he has succeeded.
    5. Forcible entry and detainer, § 67*—title not determinable'. Issues as to the title to land cannot be tried in forcible entry and detainer, and when the right to possession can be determined only by adjudicating the title, such adjudication can be made only ir ejectment.
    6. Forcible entry and detainer, § 11

      —when not proper remedy where title in dispute. Where the facts in a forcible entry and detainer suit disclosed without conflict that defendant was in possession of the strip of land in question by virtue of a lease from a party who claimed title thereto, and that plaintiff claimed the right of possession thereto through the title derived by him through deeds from parties whose titles were based upon adverse possession, it was held that ejectment, and not forcible entry and detainer, was the proper action.
    Appeal from the Circuit Court of Douglas county; the Hon. Franklin H. Boggs, Judge, presiding. Heard in this court at the April term, 1918.
    Reversed and remanded.
    Opinion filed April 29, 1919.
    P. M. Moore and John H. Chadwick, for appellant.
    A. L. Gtilliom and Charles Troup, for appellee.

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

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

   Mr. Justice Eldredge

delivered the opinion of the court.

A. M. Kaufman, appellee, recovered a judgment in the Circuit Court of Douglas county in an action of forcible entry and detainer against Jacob Miller, appellant, awarding him the possession of the following described real estate: ‘ ‘ The premises commonly known and described as a tract of land Six (6) rods wide North and South and One Hundred Sixty (160) rods long East and West off of the South side of the Northeast Quarter of Section Thirty-four (34), Township Fifteen (15) North, Range Seven (7) East of the Third Principal Meridian, in the County of Douglas and State of Illinois.”

On September 23, 1891, Hugh McKinney and wife conveyed by warranty deed to Joel Miller several tracts of land, including the South half (%) of the Northeast Quarter (14) of Section 34, Township 15 North, Range 7 East of the Third P. M., in Douglas County. It appears from the proofs that at the time of this conveyance the last-mentioned tract was inclosed on the south side thereof by a fence of part wire and part hedge, situated 6 rods north of the half section line. Under this deed Joel Miller took possession only of the land lying north of the fence. This fence had marked the south boundary line of the tract described as the Northeast Quarter of Section 34 for 50 years or more.

Joel Miller farmed the tract north of the fence until 1897, when he leased it to appellee, who was his son-in-law, and who remained in possession as such lessee until 1915.

On March 1, 1904, appellee, while in possession of the tract north of the fence as the tenant, of Joel Miller, procured a purported quitclaim deed from George I. Todd and wife of the east half of the strip lying south of the fence, between the latter and the half section line. On September 23, 1907, he procured' a quitclaim deed from Robert S. Hendrickson, widower, purporting to convey to him the west half of the strip lying between the fence and the half section line. Each of these strips extended 6 rods north and south and 80 rods east and west, and was, at the time of its conveyance to appellee, in the possession under the claim of ownership of the respective grantors thereof. After appellee procured these deeds he removed the hedge and wire fence and farmed the entire tract in the Northeast Quarter of Section 34 to the half section line.

In 1915, Joel Miller, by verbal lease, rented the premises in controversy, together with other premises, to one William Kutz for the year commencing March 1, 1915, and ending March 1, 1916. Kutz procured possession of the premises in an action of forcible entry and detainer against appellee.

In 1916, Joel Miller rented the premises in question, and other lands, to Jacob Miller, appellant, for the year from March 1, 1916, to March 1, 1917, by verbal lease, under which the latter took possession, and was in possession of the same when appellee brought this action to recover back the possession thereof.

Several reasons are urged on this appeal why the judgment of the Circuit Court should be reversed, but it will be necessary to consider but one of them. It is contended by appellant that under the evidence in this ease the action of forcible entry and detainer will not lie, but that the remedy of appellee, if any, is by ejectment. Counsel for appellee insist that this question is not open for review by this court because it was not presented on the trial by a demurrer to the evidence, motion for a directed verdict, instructions or in some other appropriate manner, and also because on the argument of the motion for a new trial it was not brought to the attention of the trial court. Numerous points are set out in support of the written motion for a new trial, among which is that the verdict is contrary to the evidence and to the law. There is nothing in the bill of exceptions to show that these points were not presented on the argument of that motion, and we must presume that they were considered by the court and not abandoned.

In order to preserve the point that there is no evidence tending to support a cause of action, or a defense, as a question of law for review by the Supreme Court, it is necessary to make a motion at the close of all the evidence for a directed verdict (Berriman v. Marvin, 162 Ill. 415; Calumet Elec. St. Ry. Co. v. Van Pelt, 173 Ill. 70; Warth v. L. Loewenstein & Sons, 219 Ill. 222); but this rule does not apply to the Appellate Court, which has the same jurisdiction as the trial court to pass upon the facts. (Rautert v. Carlson, 116 Ill. App. 260; Roman v. Silbertrust, 159 Ill. App. 485.) In the case of Warth v. L. Loewenstein & Sons, supra, it was said: “It is urged by appellant that the question whether there was any evidence tending to support the defense was raised and preserved for review in this court by her motion for a new trial. We do not think this contention can be sustained. In support of this insistence, counsel urge that Reichwald v. Gaylord, 73 Ill. 503, and Geary v. Bangs, 138 Ill. 77, so held. We have examined both of those cases on this point, and find the holdings there to be, that the question whether the evidence is sufficient to sustain the verdict may be raised for review by a motion for new trial. But the question so preserved would be one of fact, cognizable only in the Appellate Court,—not a question of law for this court.”

The facts disclose without conflict that appellant is in possession of the premises in question by virtue of his lease from Joel Miller, who claims title thereto by his deed from McKinney, and that appellee claims the right of possession thereto through the title derived by him through the deeds from the Todds and Hendrickson, whose titles, before their respective conveyances to appellee, were based upon adverse possession. It is conceded that there never has been any contractual relations or privity of estate of any kind between appellant and appellee in connection with the premises, but it is contended by counsel for appellee that the action is brought, and can be maintained, under the second clause of section 2 of the Forcible Entry and Detainer Act (J. & A. 5843), which provides for such an action when a peaceable entry is made and the possession is unlawfully withheld. This clause is only applicable where the peaceable entry is made upon premises that aré in the actual possession of the complainant, or of those to whose rights he has succeeded. (Fitzgerald v. Quinn, 165 Ill. 354.) No such state of facts appear in this case.1 Appellant entered into the peaceable possession of the premises as the lessee of Joel Miller, who was at the time in the peaceable possession of the same under the claim of title thereto.

Appellee’s sole right of possession is based upon his claim of title received through his deeds from grantors who claimed title by adverse possession. Appellant’s right of possession depends upon whether his lessor,

Joel Miller, has title to the premises. Thus the right of possession between the parties to this suit depends entirely and solely upon the question as to whether the title to the premises rests in Joel Miller or in appellee. Issues as to the title to lands cannot be tried in actions of forcible entry and detainer, and when the right to the possession thereof can be determined only by adjudicating the title thereto, such adjudication can be made only in an action of ejectment.

The judgment of the Circuit Court is reversed and cause remanded.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    Martin K. Duncan, Appellant, v. J. Ed. Dazey, Appellee.
    1. Account, §§ 43, 44

      —when defenses not preserved for consideration in bill for accounting. The defenses of laches, of the statute of limitations and statute of frauds were not preserved for consideration in a bill to state an accounting, where the master made no findings of law or fact upon such defenses, and defendant filed no objections to the master’s report.
    2. Fraudulent conveyances, § 155*—when fraudulent conveyance valid between parties. A voluntary conveyance of land in fraud of creditors, while void as to creditors, is binding upon the parties as far as it is executed, hut neither law nor equity will lend its aid to complete any part of the transaction.
    3. Torts, § 22*-—when persons not in pari delicto. In cases where both parties are in delicto, concerning an illegal act, it does not always follow that they stand in pari delicto, for there may he, and often are, different degrees in their guilt, as one party may act under circumstances of oppression, impression, hardship, undue influence, or great inequality of condition or age, so that his guilt may be far less in degree than that of his associate in the. offense.
    4. Attorney and client, § 94

      —when not in pari delicto in matter of fraudulent conveyance. The parties to a bill for accounting were not in pari delicto, although the evidence showed beyond reasonable doubt that the acts of complainant, in the transactions involved, were for the purpose of concealing his property so* that it would not be subjected to the claim of a creditor, where defendant, a supposedly intelligent business man, who was also a licensed attorney, controlling the only bank in a small town and thereby holding himself out as one entirely worthy of confidence and trust, assisted and encouraged the illiterate and ignorant complainant to convey to him a farm worth at least $13,000 above the mortgage, and other property, and to abandon his home and family in order to defeat a claim of a little over $1,000, and aided in the commission of a fraud upon complainant’s wife by executing a bond for reconveyance, thereby inducing her to execute a deed under the false belief that he would hold the title but temporarily.
    5. Attorney and client, § 94*—when not in pari delicto in matter of fraudulent conveyance. The parties to a bill for accounting were not in pari delicto although the acts of complainant, in the transactions involved, were for the purpose of evading a creditor’s ■ claim, where complainant was ignorant and illiterate, and defendant was a banker and licensed attorney and stood in confidential relations to complainant and exercised an extraordinary influence over him, and where complainant believed that the creditor’s claim was one which he did not morally nor lawfully owe and that its attempted collection was a scheme to deprive him of his property. •
    6. Equity, § 66*—when party in delicto entitled to relief. If parties in delicto are not in pari delicto, equity will give relief to the one that is comparatively innocent.
    Appeal from the Circuit Court of Shelby county; the Hon. James C. McBride, Judge, presiding. Heard in this court at the April term, 1918.
    Reversed and remanded with directions.
    Opinion filed April 29, 1919.
    Rehearing denied July 9, 1919.
    Statement by the Court. Martin K. Duncan, appellant, on October 16, 1915, in the Circuit Court of Shelby county, filed his bill in equity to procure an accounting with J. Ed. Dazey, appellee. The bill was amended and alleged in substance as follows:
    That Martin K. Duncan, the complainant, was on September 22, 1903, and long prior thereto, the owner in fee of 180 acres ofjland in Shfelby county, Illinois, described as follows: “East Half of Southeast Quarter, and Southeast Quarter of Northeast Quarter of Section 16, and the East 60 acres of Northwest Quarter of Sec. 21, Twp. 12 N. R. 4 E.; incumbered to the amount of $4,000.00, and worth over and above such incumbrance the sum of $18,500.00.”
    That on September 22, 1903, and for many years prior thereto, Duncan had been intimately acquainted with defendant, J. Ed. Dazey, who was then, and had been for many years prior thereto, engaged in the banking business, and conducting large business interests in and around Findlay, Illinois; that Duncan had for many years been a patron of Dazey in his banking business, and had had large dealings with him in connection with other matters; that Duncan is a man of limited business experience and judgment, and for many years prior to September 22,1903, had looked to Dazey for business advice and counsel, and had followed Dazey’s advice in the conduct of his affairs, and had at all times looked to Dazey as a man of wide business experience and capacity and unquestioned business integrity; that he had been advised by Dazey in many business transactions, and had depended upon such advice, and that Dazey had always dealt fairly and honorably with Duncan and was at all times honest and square with him; and that there had grown up between the two a fiduciary relationship in which Duncan had implicit trust and confidence in the business advice of Dazey. ,
    That among other things upon which Duncan counseled and consulted with Dazey was the matter of divorce proceedings with his, Duncan’s, first wife, in settlement of property rights in connection with which Duncan’s wife took certain real estate which was incumbered by mortgage, she assuming and agreeing to pay the debt secured thereby, such debt being the joint obligation of Duncan and his wife; that she failed to keep her agreement to pay said debt, as a result of which, foreclosure proceedings were had on said property at the November, 1897, term of Circuit Court of Shelby county; that the property lacked $1,130.40 'of satisfying the debt upon foreclosure sale, but no deficiency judgment was then or at any other time taken therein; that Duncan was counseling with Dazey with regard to his business at the time this deficit developed, and Dazey advised Duncan that he, Duncan, was not bound for said deficit; that it was an unjust debt, and that Duncan ought not to be required to pay it, which advice was accepted and followed by Duncan.
    That about August 18, 1903, suit was instituted in said Circuit Court by one Laura A. Grraybill against Duncan upon one of the notes involved in said foreclosure proceeding; that upon September 22, 1903, Dazey came to the home of Duncan and told Duncan that he, Dazey, had been to Shelbyville and while there had learned of the bringing of the Grraybill suit, the same being the first information reaching Duncan regarding such suit; that Dazey then further stated to Duncan that they were about to ruin Duncan, and that he, Duncan, should transfer all his property to Dazey and Duncan’s son, M. Aubrey Duncan; that Duncan should at once leave the State to avoid service of process in such suit; that Dazey stated the amount claimed in said Grraybill suit was $3,300, although as a matter of fact such suit was for but $1,130.40, exclusive of interest.
    That at such time, September 22,1903, Dazey formed the design to defraud Duncan out of all or a large part of his property, and took the said G-raybill suit as a starting point for such design; that Duncan at that time had no knowledge of such design and no reason for suspecting such until the summer of 1915; that continuously up until the summer of 1915, Duncan had complete confidence and trust in Dazey and followed his advice in business affairs; that at such time, September 22, 1903, Duncan had no adviser other than Dazey, or such lawyers as Dazey might employ, was ignorant in such matters except as he was advised by Dazey and accepted and relied upon the advice of Dazey, Dazey knowing he was so doing, and, accordingly, went to Findlay in the evening of the same day, met Dazey at his, Dazey’s, bank, the same being the First National Bank of Findlay, Illinois, Dazey being the cashier thereof, where, in the back room of such bank, a deed was prepared, executed and delivered to Dazey whereby Duncan conveyed to Dazey the land above described, without any consideration, but upon the trust and confidence by Duncan imposed in Dazey by reason of Dazey’s advice'given as above set forth; that at the time of the execution of said deed, there was also present, at the instance of Dazey, an attorney, Robert M. Peadro, which attorney also advised Duncan that the action he was then and there taking was in all respects regular and proper, and Dmican believed such advice; that acting upon Dazey’s advice, Duncan then and there turned over to Dazey his, Duncan’s, bank book, which had been issued to him by the First National Bank of Findlay; that Duncan has never received said bank book back, but about a year thereafter Dazey gave Duncan what purported to be a duplicate of such bank book; that still acting upon the advice and counsel of Dazey, Duncan at once left Shelby county for the purpose of avoiding service in said Graybill suit, and within a few weeks left the State of Illinois, still acting upon the advice and counsel of Dazey, and went to reside in St. Louis, Missouri.
    That said G-raybill suit was pending in the courts for several years, being finally disposed of in the summer of 1915, at which time Duncan settled the same and resumed his residence in Illinois and Shelby county, he, upon advice and counsel of Dazey, having continued to reside without the State of Illinois up to that time; that Dazey advised Duncau that he should go even further away, and advised him to go to Argentine, proposing to pay his expenses, and by insinuations and otherwise warned Duncan that he might be arrested, and the only safe coutse was for Duncan to remain beyond the jurisdiction of the Illinois courts; that Duncan believes it was the design of Dazey to keep Duncan outside the State of Illinois so that Dazey might more easily defraud him out of his property; that Dazey induced Duncan to transfer his said property to Dazey with the intent and design to defraud Duncan out of the same; and that it was no purpose of Dazey to assist Duncan in contesting the payment of a debt which Duncan did not morally owe, and which he was advised by Dazey he did not legally owe.
    That at the time of the transfer of said land there was a matured crop thereon of the value of $1,500 which Dazey took possession of and disposed of and received the proceeds therefrom; that Dazey received the rents from the land for the next year ensuing, of the value of $1,500.
    That for a long period following' the transactions ■aforesaid, Dazey recognized his trusteeship of said property, that Duncan was the real beneficial owner thereof, and for several years thereafter rendered unto Duncan accounts of his acts and doings as his agent in the premises.
    That afterwards Dazey represented to Duncan that it was necessary to sell said land, because he was being-harassed, and feared a creditor’s bill might be filed and the property thus be reached to satisfy the Q-raybill claim; that on or about February 15, 1905, Dazey sold said land to one J. S. Fry; that Dazey represented to Duncan that he sold it for $16,000 over and above the incumbrance, but Duncan has since learned the sale was for $18,500 over and above the incumbrance, or, if for less amount, it was had under a collusive arrangement of some sort between Dazey and Fry.
    That at some time after the foregoing, Duncan’s father died, and Duncan inherited a share of his father’s real and personal estate; that the G-raybill suit was still pending; that Duncan was still a resident of St. Louis, and was still acting upon and following the advice of Dazey; that as a result of such advice, to further defeat the G-raybill suit, Duncan assigned Dazey his interest in his father’s estate, under date of March 28, 1905, the same purporting to have been given to secure a note of $3,015, dated October 21, 1904, a note of $700 dated September 17, 1903, and an overdraft at the First National Bank of Findlay, of $1,465; that as a matter of fact there was no overdraft at said bank, no such note for $3,015, but was a note of $700 maturing about September 17, 1903; that on April 6, 1905, a judgment note for $3,015 was executed and delivered .by Dimcan to Dazey, being antedated to meet the description set forth in said assignment; that no consideration was given therefor; that thereafter, upon advice and counsel of Dazey, Duncan consented that said note of $3,015 be placed in judgment; that accordingly on April 7, 1905, Dazey placed said note in judgment in the Circuit Court of Shelby county, and an execution issued thereon; that said judgment is still in force and effect; that Dazey has recently claimed the right, notwithstanding his written acknowledgment to the contrary, to enforce said judgment, and has issued scire facias thereon; that the interests of Duncan require that Dazey be enjoined from prosecuting said scire facias pending the final determination of this cause; that upon advice and counsel of Dazey, Duncan executed a deed to one Herron, who was in all respects the agent and representative of Dazey, conveying Duncan’s interest in his father’s estate; that Dazey has received from Duncan’s share of his father’s real estate the sum of $1,453.43, and $600 from his father’s personal estate, said sums having been so received about April 10,1905. ¡
    That judgment was rendered against Duncan in the G-raybill suit December 31, 1907, for $1,724.36, which -was satisfied by Duncan in the summer of 1915; that during all these years Dazey has represented to Duncan that the Graybill suit was still pending and that Dazey could not settle with Duncan until said suit was finally ended; that Duncan has repeatedly requested a settlement with Dazey, and Dazey continually agreed to settle as soon as conditions would permit.
    That upon .Duncan’s leaving the State of Illinois, Dazey took charge of his bank account, and settled up Duncan’s business affairs and debts, paying the same out of Duncan’s money coming into Dazey’s hands as aforesaid. Dazey issued checks in Duncan’s name, on Duncan’s bank account.
    That Dazey continually played upon the unfounded fears of Duncan; led Duncan to believe he was in constant danger of arrest and requisition, and induced Duncan to believe it was of utmost importance to remain without the State of Illinois and secreted; that Dazey urged Duncan to go into bankruptcy, though there was no reason for such proceeding, but, as Duncan now believes, such was for the purpose of aiding Dazey in his design to defraud Duncan.
    That Duncan purchased of Dazey, shortly before leaving the State of Illinois, two shares of the capital stock of the First National Bank of Findlay, Illinois; that said stock was never transferred on the stock books of the bank; tha-t Dazey has collected the dividends on such stock, amounting to about $150, and that he should account for the same in addition to the other matters set forth.
    That Duncan has received of Dazey out of the transactions above set forth the sum of $8,000, for which amount Dazey is entitled to credit upon accounting.
    That at all times up until the summer of 1915, Dazey represented to Duncan that he still owed Duncan, and would render a statement and settle, but kept continually putting Duncan off, upon some pretext or another, until in the summer of 1915, Dazey informed Duncan that he owed him nothing; that he had overpaid Duncan, all of which came as a surprise to Duncan; that until said statement by Dazey in the summer of 1915, that he owed Duncan nothing, Duncan retained full faith and trust in Dazey.
    That Dazey has possession of the bank books, most of the checks and accounts and nearly all of the memoranda of Duncan concerning the property Duncan placed in Dazey’s hands, and that therefore Duncan is unable to state the true account.
    That throughout all the transactions above enumerated, Duncan was acting in good faith under the belief that he was following the proper and lawful course to protect himself from unjust and unlawful claims demanded of him; that he acted solely under the advice and direction of Dazey without any intent to hinder or delay his creditors contrary to law, and was not in pari delicto with D'azey.
    That during the years of 1905, 1906 and 1907, the land described in the bill was held in the name of John S. Fry for the benefit of Dazey, and that Dazey should be required to account for the rents for these 3 years, which were of the value of $1,500 per year, in addition to the years of 1903 and 1904 as charged in the bill; that the alleged sale as set out in the bill to J. S. Fry by Dazey was fraudulent and fictitious; that Fry held said land for the benefit of Dazey, and that Fry sold the same to one John Boyle for Dazey’s benefit on December 14, 1907, for $23,400; that the knowledge of such facts first came to Duncan from evidence produced in the hearing of this case; that Dazey should be required to account for said sum of $23,400, with prayer for relief as prayed in the bill, changed to meet tire alteration in the allegations of fact, prays an aecounting with Dazey, and a cancellation of the judgment described, and offers to do equity to Dazey, as shall to the court seem meet.
    In his answer as amended, Dazey, appellee, admits that he took title to the land and then categorically denies every other material allegation in the bill and avers that he has paid Duncan all the money owing to the latter and that Duncan is, in fact, indebted to him ; that Duncan is not entitled to relief because he is es-topped by the statute of limitations, by laches and the statute of frauds, and that he does not come into a court of equity with clean hands.
    The cause was referred to a special master in chancery, who found that appellant conveyed and concealed his property for the purpose of hindering, delaying and defrauding his creditors; that appellant and appellee were in pari delicto, and recommended that the bill be dismissed for want of equity. Numerous objections were filed to the master’s report by appellant, which were overruled and stood as exceptions thereto on the hearing before the chancellor. The exceptions were overruled and a decree entered dismissing the bill for want of equity. Appellee filed no objections or exceptions to the master’s report.
    Martin & Pyle, for appellant.
    Whitaker, Ward & Pugh, for appellee.

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

      See Illinois Notes Digest, Vole, XI to XV,- and Cumulative Quarterly, game topic and section number,

   Mr. Justice Eldredge

delivered the opinion of the court.

The proofs in this case are very voluminous and no attempt will be made to enter into a lengthy discussion of the same. The master made no findings of law or fact upon the defenses of laches, the statute of limitations or the statute of frauds. Appellee filed no objections to the master’s report, and these questions are not preserved for our consideration. Shaffner v. Healy, 57 Ill. App. 90; Snell v. Deland, 138 Ill. 55; Cook v. Meyers, 54 Ill. App. 590. The evidence shows beyond all reasonable doubt that the acts of appellant in the transactions involved were for the purpose of concealing his property so that it would not be subjected to the payment of the Graybill claim, and that appellee knew and understood that the conveyance of the lands and property by appellant to him was for this purpose. A voluntary conveyance of land in fraud of creditors, while void as to creditors, is binding upon the parties so far as it is executed, and neither law nor equity will lend its aid to complete any part of the transaction. Beebe v. Saulter, 87 Ill. 518; McElroy v. Hiner, 133 Ill. 156; Brady v. Huber, 197 Ill. 291; Rosenbaum v. Huebner, 277 Ill. 360.

If the proofs show that appellant and appellee were in pari delicto in an attempt to defeat the creditors of the former, then a court of equity will not lend its aid to preserve or carry out the trust. But it does not necessarily follow that when two parties commit an illegal act, that they are in pari delicto. The rule adopted in this State is as stated in -1 Story’s Eq. Jur. sec. 300: “In cases where both parties are in delicto concerning an illegal act, it does not always follow that they stand in pari delicto, for there may be, and often are, different degrees in their guilt. One party may act under circumstances of oppression, impression, hardship, undue influence, or great inequality of condition or age, so that his guilt may be far less in degree than that of his associate in the offense.”

In the case of Baehr v. Wolf, 59 Ill. 470, the court said:

“One party may not make use of his peculiar power over another-to procure a contract which, in itself, is illegal, and contrary to public policy, and then invoke the aid of the law to enable him to retain that which he has obtained through fraudulent practices and artifices. It would contravene the settled law that the courts will protect the citizen against all such acts of oppression and deceit.”

The controlling question in this case is, were appellant and appellee in pari delictof The proofs show that appellant, a number of years prior to Septembci 22,1903, was divorced by his first wife in a suit brou^I.t by her and, in the settlement of their property rights, appellant deeded to her what was known as the Shanholtzer farm. This farm, at that time, was incumbered by a mortgage given to secure the payment of promissory notes previously executed by appellant and his then wife, amounting in the aggregate to the sum of $3,000. The mortgage indebtedness his wife agreed to assume. It is stated by counsel for both appellant and appellee that the mortgage on this farm was subsequently foreclosed and a deficiency decree rendered for the sum of $1,000, though no such decree appears to have been introduced in evidence. The record does show, however, that a suit in assumpsit was instituted on August 18, 1903, in the Circuit Court of Shelby county by one Laura E. Graybill against appellant and his former wife to recover on a promissory note dated March 9, 1895, for the principal sum of $1,000, executed by appellant and his then wife, payable to the order of Amos Shanholtzer and assigned by the latter to Laura E. Graybill. In 1903, when this assumpsit suit was brought, appellant, who had married again, was a farmer about 57 years of age, and owned two farms in Shelby county. One farm consisted of 180 acres and was known as the Okaw farm. The other farm, known as the Flat Branch farm, was occupied by M. A. Duncan, a son by his first wife, and consisted of 140 acres. There was a mortgage indebtedness of about $4,000 on the Okaw farm. The market value of these farms at that time was between $90 and $125 per acre. It does not appear that appellant in September, 1903, had any other debts of any consequence except the mortgage indebtedness on the Okaw farm of $4,000, and the Graybill note of $1,000. At this time, the crops were maturing on these farms and appellant had cut between 140 and 150 tons of hay, and also owned considerable personal property, consisting of horses, cattle, hogs, farm implements, etc. The value of the personal property, we have not been able to search out of the very-voluminous record and have not been aided by connsel'in regard thereto. The record does, however, show conclusively, and it is in no way disputed, that appellant in September, 1903, was perfectly solvent.

From the time that appellant was divorced from his first wife in 1895 until September, 1903, he had no knowledge that his former wife had failed to pay the notes secured by the mortgage on the Shanholtzer farm or that said mortgage had been foreclosed, and from the proofs it is evident that he labored under the belief that, since the decree for divorce was rendered, owing to the fact that he had deeded the Shanholtzer farm to his former wife and she had assumed the payment of the mortgage indebtedness thereon, he was discharged from any further liability for the payment of the same. In fact, his testimony tends to show that he is still convinced that some fraud has been practiced upon him in compelling him to pay the Graybill judgment. Appellant was a very ignorant man so far as education was concerned, as the following letter, one of several which were introduced in evidence, will show:

“McCoy’s European Hotel and Cafe,

Corner Clark & VanBuren Streets Chicago 190

“Mr. J. E. Dazey, Esq.

Sir—I had a talk with E. S. McDonal when I got too Dicatur & he said He worked on Books untill About 6PM his Idea was two take Proceedings two Stay the Jugment & He Said thought the facks Could Be Shone that the Note they was Souing on was Same as the One judgment was taken on.

So we could Nock them Out Law is fur Justic & it Looks as though Pedrow Ought two Feil Papers two get a hereing on case their Is Plain Evidence of Fraud In thiss Case T I feel If Mr Pedrow takes the Proper steps He could Feile papers two Sustain A case.

I now I had a Judment in Christiar county on Plane Note of hand & Old Man Tailor twock Some King of proseedings two hav a New hering & the jugment was very Old. It is turning cool & from Indicasive their will Be Some Cheap Cattle.

In yards thiss weak I could hav Bought Some yesterdy 700 weight for 2% they had horns on the Dehorned Cattle Sell 35 sence per hund Higher.

Looks as though Some of these 2y2 two I kuce Sheap. could Be Sold at a profit & some of theas fleshy hefers at 2 75 can Buy jansis Sanhill hefer In jansis Sity for 2% good Beef weghing fron 7 two 8 Hundred.”

In September, 1903, appellee was, and had been for a number of years, principal owner and cashier of the First National Bank at Findlay, Hlinois; he is also a licensed attorney at law; he also dealt in stock and grain, more or less, and had joined with appellant in several transactions involving the buying and selling of live stock. While he testified that his relations with appellant were no different than with any other customer of his bank, the evidence conclusively shows that they were of a most intimate nature. In addition to the stock deals participated in by appellee and appellant, the proofs, including the correspondence between the parties, show that, their relations had been of a most confidential character long before the transactions involved in this case occurred. There can be no question but that appellant trusted appellee implicitly in business matters and in his personal affairs, even to such an extent that he permitted appellee to draw checks on appellant’s account at the bank and to sign appellant’s name thereto. There can also be no question that, for nearly 12 years following September, 1903, appellant’s actions were practically absolutely controlled by appellee’s directions and advice. With the relations thus existing between the parties as indicated, according to appellant’s testimony, appellee called appellant into the, bank between September 18th and September 22nd, and told him that Mrs. G-raybill had brought a suit against him to recover $3,300 on account of the Shanholtzer notes; that it would be a long and expensive litigation and would ruin him and that, if appellant would deed the farm to him, he would get the claim settled and deed the farm back again to him; that appellee told him he should deed the Flat Branch farm to his son Aubrey; that when appellant protested that he did not want to sell his farm, appellee said that he would give him a bond to deed it back to him. Appellant went home and the next day procured a lawyer from Decatur by the name of McDonald, who came to Findlay to consult with him. McDonald and appellant and appellee had some conversations over the matter and appellant requested appellee and McDonald to go to Shelbyville and look over the papers and records and advise him as to his liability, that appellee drove with McDonald to Shelbyville in the former’s buggy, and that when they got to Shelbyville he paid McDonald his fee and discharged him; that when appellee returned that afternoon from Shelbyville he told appellant, “I just let McDonald go home, we can fix it up”; that appellee also said that McDonald had found the Shanholtzer notes just as appellee had represented; that the sheriff had a subpoena against him and was liable to serve it on him at any time; that he should come and fix the papers as soon as possible or they would ruin him. That that evening appellant and his wife and Aubrey, his son, went to the bank; that when they arrived at the bank, they found there appellee, Glande Laughlin (an employee of the bank) and E. M. Peadro, a lawyer living at Sullivan. A deed was prepared conveying the Okaw farm to-appellee and the Flat Branch farm to Aubrey Duncan. These deeds were executed, by appellant and his wife. Appellee also, at this time, executed a bond for a deed whereby he obligated himself to convey to appellant the Okaw farm upon the payment of $14,000 to be paid all cash on or before “April 1, 1904—1905—1906.” Appellee also induced appellant to execute an affidavit stating that on September 21, 1903, he had sold to appellee this farm and received all the money due him on the same. This affidavit was not only sworn to before Laughlin, as a notary public, but also has attached to it a certificate of acknowledgment such as would be required to a deed. There is no pretext but what this affidavit was a fraud, or that any consideration whatever passed for the conveyance.

Appellee’s version of the transaction is that ap< pellant insisted on selling him the land • in order to avoid the payment of the G-raybill claim; that he did not take McDonald to Shelbyville and did not hire Peadro; that he met Duncan and his wife in the bank that evening and that Laughlin and Peadro were there. He states in his testimony, “There was not much said about the land at that time. The deed was prepared and signed, and that was about all there was to it. They were not there very long, 10, 15 or 20 minutes.” He further testified: “In the talks Duncan asked more than $90.00 for the land and I finally offered $90.00, and he accepted it. His proposition was that he would take $90.00 and I was to pay him when I sold it. He was to have the crops off of it and he was to pay interest on the money I advanced to him. This was said before the deed was made.” In explanation of the execution of the bond for the reconveyance of the land, he stated that he executed the bond for the purpose of inducing appellant’s wife to sign the deed. At this time, appellant had cut between 135 and 140 tons of clover and timothy hay, which was still on the farm, and there were 23 acres planted in corn and a few acres in oats. There was some old corn on the place, fifteen or eighteen head of cattle, five or six brood sows and several shoats, four horses and fourteen sheep. Appellant further testified that appellee told him he should immediately leave the State so that he could not be served with process. This is denied by appellee. Appellant further testified that he agreed with appellee that his wife should remain on the farm and run it with hired help until the G-raybill claim was defeated and he could return. Appellant did not go home with his wife that night but went to the home of his son, Aubrey, and the next day started on a wandering journey which finally terminated at Tulsa, Oklahoma. He left Tulsa the following May and went to St. Louis, Missouri, where he remained until shortly before this suit was started.

The most favorable construction that can be placed upon the testimony of appellee is that he, a supposedly educated, intelligent business man, controlling the only bank in a small town, and thereby holding himself out to the community at large as one entirely worthy of confidence and trust, aided, assisted and encouraged an ignorant and illiterate man to convey to him 180 acres of land, worth at least $13,000 above the mortgage indebtedness thereon, to abandon his home and family and to become an exile from his State in order to defeat a claim of a little over $1,000. He even admits that he willingly aided in the commission of a fraud upon appellant’s wife by executing a bond for a reconveyance, thereby inducing her to execute a deed nuder the false belief that he would hold the title of the land but temporarily, when, in fact, he at the time intended to claim the deed as an actual conveyance of the title to him. It seems incredible that, even a man of appellant’s limited intelligence, would, of his own volition, sacrifice so much to gain so little. If it be conceded that appellant’s act in conveying the premises to appellee for the purpose of defeating the Gray-bill claim was unlawful, there is an extenuating circumstance in the fact that he believed, at the time, that the Graybill claim was one which he did not morally or lawfully owe and that its attempted collection was a scheme to deprive him of his property. In other words, he was not intending to defraud a legitimate creditor but to protect his property from what he considered to be a fraudulent claim. The evidence shows that he many times importuned appellee to get an attorney and to take other steps to fight the claim and that appellee led him to believé, during the whole period of the 12 years that he remained out of the State, that appellee was looking after his interests and would eventually defeat the Graybill suit. Letters written by appellee to appellant during this period show conclusively that appellee operated continually upon the fears of appellant and continually advised him to remain out of the State. He even implanted the fear of arrest on some mythical criminal charge if appellant should return to Illinois. On September 26, 1903, appellee wrote to appellant stating that he was down to the farm that morning, everything was O. K. and would keep him posted. On February 19, 1904, he wrote to appellant stating that he would look after things, that everything was all right, that he would go out to see him the next month, and closed, “Chafee (Mrs. Graybill’s attorney) is yet mad, but I don’t know just what he can do.” On March 1, 1904, he wrote to appellant while the latter was at St. Louis, among other things, as follows: “I am real anxious to see you, and, as soon as you get to St. Louis, send me a letter or message and I will go down at once. If you send a message sign it John Jones, just say ‘am here at Bement Hotel.’ ” On March 9, 1904, appellee addressed a letter to appellant under the name of John Smith in which, among other things, he says: “I would sooner meet you in Decatur than in Sullivan, for you will see too many that know you there and it might cause some trouble.” On October 26, 1904, in another letter he says: “You need not worry about that matter, I feel absolutely safe on it now. You need not be afraid of Mr. Peadro. Do not send any one to see the other fellows yet, leave that until later. I see no immediate cause for uneasiness and if there was any, I think I would know it. ’ ’ On April 29,1905, he writes,.“ Chafee has an execution out and sent it to Moweaqua.” This statement was untrue. In a letter dated July 1, 1905, appellee writes to appellant, among other things, “I do not know what they have for you, but as soon as I get home I will look into this matter. It would be best to keep away from them. If you get arrested, fight the requisition papers and, if I am at home, I will come down. I will any way as soon as I get time.' * * * Do your best to keep out of their way. It is easier to keep out than to get out after you get in.” On July 25, 1905, he writes, “I have been trying to find out what they have for you, but so far have been unable to do so. But I have a ‘man now that I think can find out from the sheriff.” On June 3, 1906, in a letter to appellant, he uses this language, “When you write me use plain envelope, if you can. Chafee is storming around all the time. ’ ’ Although appellee was served with subpoena duces tecum and also with notice for the purpose of procuring the letters written by appellant to appellee, he, through his counsel, refused to produce any except three, one of which we have quoted in the former part of this opinion.

During appellant’s ridiculous expatriation, he from time to time drew sums of money on appellee which were paid by the latter. On March 30, 1905, appellant’s father died and appellee visited appellant at St. Louis with the result that appellant executed a written assignment of his interest in his father’s estate to appellee and, at the same time, appellee procured from appellant a judgment note for $3,015, on which judgment was subsequently confessed. As a result of this conference, appellant also is induced to convey by deed his interest in the real estate owned by his father to one E. M. Herron, an employee in appellee’s bank, with the understanding that Herron was to file a suit for the partition of said premises, which he did, and appellee succeeded in obtaining appellant’s share in said estate amounting to the sum of $284.28 from the personal estate and $1,453.43 from the sale of the real estate in the partition suit. Appellee claims that he paid a note for $3,015 which appellant had given to the bank and that the judgment note for the like amount was executed by appellant to reimburse appellee for paying the note. Appellant denies that he ever gave any such note to the bank. Judgment was thereafter confessed against appellant in favor of appellee on this note.

On Sunday, June 18, 1905, Duncan went to Shelby-ville, Illinois, and was served with summons in the Graybill suit and subsequently judgment was rendered against him in that case. Appellee in November, 1905, in a letter to appellant stated that he had had the service quashed because it had been made on Sunday, which was, in fact, untrue and the service was sustained. In 1914, while appellant was still living in St. Louis, his brother died leaving him more property. The Graybill judgment was made out of this property.

On March 30, 1905, appellee conveyed the Okaw farm to one Fry for $16,020. On December 14, 1907, Fry conveyed the land to one John Boyle for $23,400,

No attempt has been made to mention all the facts appearing in the very large record in this case, but enough has been set out to show the extraordinary influence appellee exercised over appellant. As stated in the outset of this opinion, the controlling' question in the case is whether appellant and appellee were in pari delicto. Our conclusion, from the manifest weight of the testimony in this case, is, that appellee’s contention that, in the fraudulent transactions between himself and appellant for the purpose of defrauding the latter’s creditors, appellant was equally guilty with himself and therefore in pari delicto, cannot be sustained. Appellee had the master mind and exercised an inexplicable influence over that of appellant. He actually succeeded in procuring not only appellant’s- original farm but the property he inherited from his father, and in keeping appellant out of the State for 12 years, through the fear of ruination and arrest. Appellant followed appellee’s advice during all that period of time absolutely and unquestionably, and the relations between these parties could not have been more confidential if they had been between attorney and client. In the case of Herrick v. Lynch, 150 Ill. 283, the court said:

“We do not think, however, that under the circumstances there should be an application of that rule of equity which denies relief to one party against another when both have been engaged in a fraudulent transaction. The parties were not in pari delicto. One was legal adviser, the other client. The advice of the former being adopted, he procured title to the latter’s interest in valuable real estate. Equity will not tolerate the idea that an attorney may make use of his peculiar power over his client to procure a contract which is illegal and contrary to public policy, and to then invoke the aid of the law to enable him to retain that which he has obtained through his fraudulent artifices. 1 ^Story’s Eq. Jur. sec, 300 5 Baehr v. Wolf, 59 Ill. 474.”

If the parties are not in pari delicto, equity will give relief to the one that is comparatively innocent. Woodall v. Peden, 274 Ill. 301; Brady v. Huber, 197 Ill. 291.

The decree is reversed and the cause remanded with directions to enter an order referring this case to the master in chancery, with directions to state an account between the parties.

The original exhibits certified to this court are hereby ordered to be returned to the clerk of the Circuit Court of Shelby county.

Reversed and remanded with directions.


author: Mr. Justice Eldredge,

text:
    In the Matter of the Estate of John Robinson, Deceased. Phebe J. Robinson, Appellant, v. W. T. Robinson, Appellee.
    1. Wills, § 323

      —what constitutes equitable conversion. Under provisions of a will devising a life estate to the widow and directing her coexecutor to sell on the death of the widow and make distribution of the proceeds to named beneficiaries, there was an equitable conversion of the lands, and the provisions were bequests of personalty.
    2. Wills, • § 416*—when executor talces fee simple title to lands. Under a will giving a life estate in certain realty, with directions to the surviving executor to sell on the death of the widow, who was executrix, such surviving executor took title in fee to the lands mentioned in the trust, for the purpose of selling the fee-simple title after the death of the widow.
    3. Wills, § 415*—when power of executor to sell lands implied. Although power to sell lands be not directly conferred by the express terms of the will, yet it will be implied, where it is the duty of the executor to make the sale and distribute the proceeds.
    4. Executobs and administbatobs, § 43*—when persons occupy

      dual capacity of executors and trustees. Under a will devising a life estate to the widow, who was also executrix, with direction to the coexecutor to sell upon the widow’s death and make distribution, a trust was imposed upon the executors and they occupied the dual capacity of executors and trustees.
    5. Executors and administrators, § 550

      —when executors should he discharged. Under a will devising a life estate to the widow, who was also executrix, with direction to the coexecutor to sell upon the widow’s death and make distribution, the estate became settled after sale of the personalty and payment of the debts of the estate, and the acts of the executors as such ceased, and they should have been discharged as such, as in carrying out the remaining provisions of the will they would act as trustees and not as executors, and funds then in their hands were trust funds over which the Probate Court had no jurisdiction.
    6. Trusts, § 236*—what court has jurisidietion of testamentary trusts. County Courts cannot administer on testamentary trusts, and if the cestui que trust desires an accounting, he has his remedy in equity.
    Appeal from the Circuit Court of Shelby county; the Hon. James C. McBride, Judge, presiding in the Circuit Court; the Hon. A. J. Stetoubt, Judge, presiding in the County Court. Heard in this court at the April term, 1918.
    Reversed and remanded with directions.
    Opinion filed April 29, 1919.
    Statement by the Court. John Bobinson died testate, leaving Phebe J. Bobinson, appellant, his widow, and ten children, viz., William T. Bobinson, Mary J. Miller, Annie Henry, John B. Bobinson, James -K. Bobinson, Alice M. Forsythe, Clarella G-. Whitaker, Florence O. Beid, Harry B. Bobinson and Boy E. Bobinson. The first three of the above named children were bom to him by a former wife, and the remaining seven were born to him by appellant.
    By the will, Phebe J. Bobinson (his widow and ap^pellant) and William T. Bobinson (a son by the deceased’s first wife) were appointed coexecntors thereof, and they qualified as such. The paragraphs of the will involved on this appeal are as follows:

      “5th. After the payment by my executors of all just debts and funeral expenses, which debts and expenses I desire my executors to pay out of the proceeds of my personal property, which personal propr erty, with the exception of the items which I have previously disposed of in this Will, I desire my executors to sell at public or private sale as soon after my death as can be, talcing into consideration a time (when in your judgment) such property will bring the most money to the estate; then if any money left I desire same deposited in Bank of Ayers Bros., Moweaqua, Illinois, to be left there until the death of my beloved wife, at which time I order and direct that my surviving executor, Wm. T. Robinson, malee an equal distribution of the same among my ten children; In case of any of the ten children having died before my beloved wife, then the part which would be due said deceased child from the above distribution I desire paid to their heirs, if any, of said deceased child; If no heirs of said deceased child, then that part to g’o to the surviving brothers & sisters of the Deceased.
    “6th. I give, devise and bequeath to my beloved wife for her lifetime only the homestead, consisting of 80 acres of land more or less, said lands being located in the Northwest Quarter of Section 2, Township Fourteen, North Range 3 east of the 3rd Principal Meridian, Shelby County, Illinois. At the death of my beloved wife I desire same to be sold by my surviving executor and the proceeds from same divided equally among the following named children: Wm. T. Robinson, Mary J. Miller and Annie Henry.
    “7th. I own other lands described as follows: The Southwest Quarter of the Northeast Quarter and the North Half of the Southeast quarter, all in Section 32, Township 14, North, Range 3 Bast of the 3rd Principal Meridian, Shelby County, Illinois. This one hundred and twenty acres of land, I desire managed by my executors in the way that they think will be to the best interests of my estate during the life of my beloved wife; The proceeds from this 120 acres of land (with the exception of Two Hundred Dollars each year, which two hundred dollars is disposed of in the next section of this Will) I desire deposited in Bank of Ayers Bros., Moweaqua, Illinois, once each year by my executors until the death of my beloved wife. Upon the death of my beloved wife I desire the total amount of money deposited in Bank of Ayers Bros., together with whatever amount may be due from my executors, to be deposited in said bank, divided by my said surviving executor equally among my ten children, if any deceased, their part to be disposed of according to a previous section in this Will. At the death of my wife I further desire that my surviving executor sell the one hundred and twenty acre tract of land and divide the proceeds equally among* the following seven children; John B. Robinson, Alice May Forsythe, James Knox Robinson, Clarella Grace WMtacre, Florence O. Robinson, Harry Kenneth Robinson, and Roy Edward Robinson.
    “8th. The Two Hundred Dollars excepted in section seven of this Will I desire given once each year into the hands of my beloved wife to do with the same whatever she desires.”
    On April 1, 1909, the coexecutors made a joint report to the County Court, wherein it is shown that the personal property of the estate had been sold by them and the claims allowed against the estate paid out of the proceeds thereof. On March 30, 1910, a report as executrix was made to the County Court by appellant only, and what is called in the briefs by counsel a final report was fifed by appellant as executrix in the County Court on December 26, 1916. This report covers her acts and doings as executrix from March 27, 1910, to November 10, 1916. Appellee, as coexecutor, did not join in the last two reports mentioned, nor has he filed any report as such, except the first one in which he joined with appellant. To the last or final report filed by appellant, appellee, as coexecutor, and as son of the deceased, filed numerous objections, which were sustained by the County Court, An appeal was taken to the Circuit Court. The following stipulation was entered into by the parties to the suit:
    “It is stipulated by and between the parties hereto that the items in dispute in this case are as follows:
    “May 14, 1913, J. B. Robinson, material and repairs to house............................$200.00
    “Aug. 29, 1913, J. B. Robinson, material and repairs to house............................ 250.00
    ’“Dec. 8, 1914, Shelby County Lumber Company, com crib.............................. 239.28
    “Dec. 9, 1914, Adamson, Miller & Co., Nails, ....................................... 21.69
    “Dec. 12, 1914, G-. Donnell, labor.......... 28.75
    “Dec. 22, 1914, Roy E. Robinson, labor .... 22.00
    “Dec. 24, 1914, J. W. Hill, gravel........ 10.00
    “The above items were all used in repairs and improvements placed upon the 120 acres in question. It is further stipulated that the items shown in the report of rent and grain and com were items received from the 120 acres in' question for the various dates stated.
    “It is further stipulated that the objector now resides and has resided since the death of his father in Moultrie County, Illinois.
    “That the widow, Phebe J. Robinson, now resides and has resided since the death of her husband on the 80 acres of land named in the will; that the deceased had two sets of children, three children being children of this wife—
    “It is further stipulated that the tenant upon the 120 acres has been John B. Robinson, one of the seven children, and that he was tenant from the time of the death of his father up until the filing of this report and for sometime prior thereto he was tenant. It is further stipulated that the sums expended for the repairs and improvements above mentioned were taken from the general fund belonging to the ten children and on deposit in the Ayers Brothers Bank. It is further stipulated that all preliminary proof concerning the files in the probate court is waived and that either party hereto may use such portions of the files of the probate court as evidence without preliminary proof, the competency thereof being left to the court.”
    Notwithstanding the above stipulation, another objection to the report was heard and determined by the Circuit Court. In the report as filed in the County Court, appellant took credit for commissions as executor, and appellee objected thereto on the ground that he, as coexecntor, was entitled to one-half of the commissions. The County Court sustained his objection and on appeal to the Circuit Court this objection was overruled, and appellee has assigned a cross error thereon.
    After the first report was filed, appellee told appellant to go ahead and manage the estate, as he lived too far away to give it his personal attention. The items in dispute, aside from the commissions, comprise $450 expended in 1913 by appellant in rebuilding the house and $321.72 expended in 1914 in rebuilding a com crib on the 120 acres, which were occupied by John B. Bobinson. These repairs were paid for out of moneys deposited in the Bank of Ayers Bros., Moweaqua, Illinois, from the rents received as directed in the 7th paragraph of the will. The objection to the payment of these moneys out of said funds is that under the will the executors had no power to make any such repairs, and when said funds were once deposited in said bank, they could not be withdrawn therefrom for such purpose.
    S. S. Clapper and G-eorge B. Bhoads, for appellant.
    Chapee, Chew & Baker, for appellee.

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

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

   Mr. Justice Eldredge,

delivered the opinion of the court.

Under the 6th paragraph of the will, appellant is devised a life estate in 80 acres of the land, and at her death the surviving executor is directed to sell the same and divide the proceeds among the three children named. Under the 7th and 8th paragraphs, the executors are directed to manage the remaining 120 acres of land in the way that they think will be to the best interest of the estate during the life of appellant. Out of the proceeds from this tract of land the executors are directed to pay $200 per year to appellant as long as she lives, and to deposit the balance in the Bank of Ayers Bros., once each year, and upon the death of appellant the surviving executor to divide the moneys in the bank equally between the ten children. The surviving executor is also directed to sell the 120 acres ■ at the death of appellant and divide the proceeds thereof among the seven children of appellant.

It is clear that under the terms of the will there - was an equitable conversion of the lands and that the 6th and 7th paragraphs of the will are bequests of personalty. Martin v. Martin, 273 Ill. 595; Glover v. Condell, 163 Ill. 566. Under this will the surviving executor took title in fee to the lands mentioned in trust for the purpose of selling the fee-simple title after appellant’s death. Although power to sell lands be not directly conferred by the express terms of a will, yet it will be implied where it is the duty of the executor under the will to make the sale and distribute the proceeds. Lash v. Lash, 209 Ill. 595. A trust was imposed upon the executors, and they occupied the dual capacity of executors and trustees. Lash v. Lash, supra; Glover v. Condell, supra; Hale v. Hale, 146 Ill. 227; Greenwood v. Greenwood, 178 Ill. 387. "Where a will charges,an executor with duties of a trustee without distinguishing his duties as trustee from those as executor, it does not amount to a failure to appoint a trustee. Welch v. Caldwell, 226 Ill. 488. The estate had long been settled when the matters in controversy here became involved. After the sale of the personal property and the payment of the debts, the estate became settled, and the acts of appellant and appellee as coexecutors ceased, and they should have made a final report and have been discharged as such. In carrying out the remaining provisions of the will, they act as trustees and not as executors. The funds in controversy in this so-called executor’s report are purely trust funds, over which neither the County Court nor the Circuit Court on appeal therefrom had any jurisdiction whatever. County Courts cannot administer on testamentary trusts. Wylie v. Bushnell, 277 Ill. 484. The orders of the County Court and the Circuit Court are void and of no effect. The County Court should require the coexecutors to make a final report as such executors, and declare the estate settled. If appellee, as a cestui que trust, desires an accounting from appellant as trustee, he has his remedy by a bill in equity. Warner v. Mettler, 260 Ill. 416. A trustee cannot in the first instance present a report to the Circuit Court and ask for its approval, and much less to the County Court, which has no jurisdiction of trusts whatever. Warner v. Mettler, supra.

The judgments of the Circuit and County Courts are reversed and cause remanded with directions to proceed in conformity with this opinion.

Reversed and remanded with directions.


author: Mr. . Justice Eldredge

text:
    Clarence England, Plaintiff in Error, v. Nokomis Coal Company, Defendant in Error.
    1. Workmen's Compensation Act, § 12

      —when declaration defective in matter of refection of act. The averment in a personal Injury case that defendant had “rejected the provisions of the Workmen’s Compensation Act of this State and was not working under such act at the time of such injury,” was a pure conclusion and was not a compliance with section 3% of such Act [Call. 1920 Stat. T 5475(3%)], requiring an averment of the fact that defendant had filed notice of his election not to provide and pay compensation according to the provisions of the act; and hence, under the further provision of such section, the employer was for the purpose of the action conclusively presumed to have filed his notice of election, and the directed verdict for defendant was affirmed in the absence of proof that defendant had filed notice of his election not to provide and pay such compensation.
    2. Workmen’s Compensation Act, § 12*—when proof of refection of act essential. Under the Workmen’s Compensation Act of 1913 [Call. 1916 Stat. j[ 5475(1) et seq.f, it was essential, in order to maintain an action at law by an employee to recover for personal injuries against his employer, to" prove that the latter had elected not to he bound by the act.
    Error to the Circuit Court of Montgomery county; the Hon. William B. Wright, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed April 29, 1919.
    A. W. Kerr and W. J. MacDonald, for plaintiff in error.
    Hill & Bullington, for defendant in error; R. H. Davis, of counsel.

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

   Mr. . Justice Eldredge

delivered the opinion of the court.

Clarence England, plaintiff in error, while in the employ of Nokomis Coal Company, defendant in error, as an electrician, was, on September 21,. 1916, injured while engaged in connecting an electrical wire to a fuse block on a transformer on the wall inside of the transformer house. Defendant in error at the time was operating a coal mine and in connection therewith the electrical apparatus mentioned. On September 15, 1917, plaintiff in error brought an action on the case against defendant in error to recover damages for the injuries sustained. The declaration consists of two counts and in each of which it is alleged: “And plaintiff further avers that defendant on and prior to September 21st, 1916, rejected the provisions of the Workmen’s Compensation Act. of this State and was not working under such act at the time of such injury. ’ ’ To this declaration defendant in error pleaded the general issue. A trial was had upon the merits and a verdict returned by the jury of not guilty, on which verdict judgment was rendered.

A motion was made by defendant in error at the close of plaintiff in error’s evidence to exclude the evidence, and an instruction offered by which the jury were directed to find defendant in error not guilty, and the same motion was made and instruction offered at the close of all the evidence. Both the motions were overruled and both instructions refused. The principal contention made in this court by plaintiff in error is that the verdict is contrary to the evidence. From a careful consideration of the evidence, our conclusion is that the verdict is not against a manifest weight thereof. Some criticism is made of the instructions, which is without merit.' Upon the merits of the case the facts were fairly submitted to the jury, which were properly instructed as to the law, and no error has been pointed out of sufficient moment to justify a reversal of the judgment.

Another reason exists, however, why the judgment must be affirmed. No proof of any kind was made or offered of the fact that the defendant in error had filed notice of his election not to provide and pay compensation according to the provisions of the Workmen’s Compensation Act. At the time the accident happened, the Workmen’s Compensation Act of 1913 was in force. Under this act it was essential, in order to maintain an action at law to recover for personal injuries by an employee against his employer, to prove that the latter had elected not to be bound by said act. Beveridge v. Illinois Fuel Co. 283 Ill. 31 [17 N. C. C. A. 463]; Barnes v. Illinois Fuel Co. 283 Ill. 173. At the time plaintiff in error brought his suit, the act of 1913 had been amended by two acts of the legislature passed at the same session. Section 2 of the Act of 1913 [Call. 1916 Stat. 5475(2)] provided as follows: “Every employer enumerated in section' 3, paragraph (b), shall be conclusively presumed, to have filed notice of his election as provided in section 1, paragraph (a), and to have elected to provide and pay compensation according to the provisions of this Act, unless and until notice in writing of his election to the contrary is filed with the Industrial Board and unless and until the employer shall either furnish to his employee personally or post at a conspicuous place in the plant, shop, office, room or place where such employee is to be employed, a copy of said notice of election not to provide and pay compensation according to the provisions of this Act; which notice of non-election if filed and posted as herein provided, shall he effective until withdrawn; and such notice of non-election may be withdrawn as provided-in this Act.”

One class of employers so mentioned in said section 3 embraced those following the occupation of mining. The first amendatory act was passed with an emergency clause and was approved May 31, 1917. By this act, section 2 of the Act of 1913 was amended so as to provide that every such employer shall be conclusively presumed to have filed notice of his election to provide and pay compensation according to the provisions of the act unless and until notice in writing of his election to the contrary is filed with the Industrial Board. This amendment omits the necessity of either furnishing to the employee personally or posting such notice in the plant, shop, etc., where such employee is to be employed. This amendatory act became a law on its approval, May 31, 1917. By this amendment a new section was also enacted, which is as follows: Section 3y2. (a) If the plaintiff in any action mentioned in section 3 shall in his declaration or in his other pleading allege that the employer has filed notice of his election not to provide and pay compensation according to the provisions of the Workmen’s Compensation Act and such allegation be not denied by a verified pleading, then such employer shall for the purposes of that action be conclusively presumed to have filed his notice of non-election.” [Call. 1920 Stat. [¶] 5475 (3%).]

Subsequently, at the same session of the legislature, another amendatory act was passed which was approved June 25,1917, and became in force July 1, 1917. By this last amendatory act, section 2 was repealed in its entirety, and section 3 thereof provides that the provisions of the act shall apply automatically and without election to all employers and their employees engaged in certain enterprises, including that of mining. Section 3% of the prior amendatory act was left unchanged.

If it be conceded that said section 3% is purely remedial, having application only to a rule of evidence and practice, and is therefore retroactive and can be availed of in the prosecution of a cause of action which arose prior to its enactment, yet it cannot be invoked in the present case because the declaration does not contain the averment demanded by the section. The averment in the declaration in this case that defendant in error had “rejected the provisions of the Workmen’s Compensation Act of this State and was not working under such act at the time of such injury” is a pure conclusion of the pleader and is not an averment of the fact that it “has filed notice of his election not to provide and pay compensation according to the provisions of the Workmen’s Compensation Act.” It is but an averment of the conclusion which would be derived if the fact mentioned in the section had been alleged. Section 3% specifically sets out the necessary allegation of facts to raise the presumption that the employer had filed his notice of non-election, and such averment must be made or the presumption will not prevail. Of course, section 3% can have no application in a suit against an employer engaged in the occupation of mining, by an employee, for injuries received since July 1, 1917, because under the statute as it now exists, and has existed since that time, employers engaged in such occupation are compelled to provide and pay compensation according to the provisions of the Workmen’s Compensation Act, and have no right of election. It can now only apply in cases against employers pursuing occupations not mentioned in section 3. From what has been said, we do not intend to decide, and have no occasion to do so, that said section 3% can have, in fact, any application to causes of action arising before the adoption of said amendatory act of 1917.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    In re Estate of William Barker, Deceased. Tony Barker, Appellant, v. Howard Barker, Appellee.
    1. Executors and administrators, § 25

      —when minor child not entitled to act as -father’s administrator nor to nominate administrator. Under Hurd’s Rev. St. ch. 3, sec. 18 (J. & A. If 66), relating to preferences in the matter of the right to appointment as administrator, a minor child had neither the right to act as administrator of the estate of his father, nor had he the right to nominate the administrator.
    2. Executors and administrators, § 25*—when next friend of minor not entitled to appointment as administrator of minor’s father. The next friend Of a minor had no greater rights in relation to her appointment as administrator of the estate of the minor’s father than the minor had,
    3. Executors and administrators, § 25*—right to administer and to take hy descent or will as statutory. No one has the right to administer, but that right and the right to take property hy descent or by will rests in the State and is controlled hy statute.
    Appeal from the Circuit Court of Shelby county; the Hon. William B. Wright, Judge, presiding. Heard in this court at the October • term, 1918.
    Reversed and remanded with directions.
    Opinion filed April 29, 1919.
    G-eorge B. Rhoads, for appellant.
    Whitaker, Ward & Pugh, for appellee.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

William Barker, a resident of Shelby county, on February 1, 1918, was killed in an accident at a mine at Stonington. He had been married and left one child, Howard J. Barker, aged 9 years, and a resident of Shelby county. The wife of deceased, and the mother of the child, had been divorced from him and had remarried, her name now being Etta Wallace. On February 5, 1918, Howard J. Barker, by Ms mother and next friend, Etta Wallace, filed a petition in the County Court asking that William Baum be appointed administrator and nominated said Baum therefor. On February 8, 1918, Tony Barker, a half-brother of deceased, filed Ms petition in said court asking for the appointment of the public administrator and nominating the latter therefor. The County Court consolidated the petitions, heard the matter and found that Howard J. Barker, being a minor, was not entitled to administer upon the estate and therefore had not the right to nominate, and appointed the public administrator as administrator of the estate of the deceased, who filed Ms bond and qualified as such. Howard J. Barker, by Etta Wallace, his mother and next friend, appealed from the judgment of the County Court to the Circuit Court. The Circuit Court held that the son, though a minor, had a right to nominate and appointed William Baum administrator. Tony Barker has appealed from the judgment of the CircMt Court to this court.

Section 18, ch. 3, Hurd’s Bev. St. (J. & A. ft 66) provides that in the appointment of an administrator of the estate of a deceased person, preference shall be given:

‘ ‘ 1st. To the surviving husband or wife or any competent person nominated by him or her.

“2nd. To the children or any competent person nominated by them. # # * * *

“9th. To the public administrator or to any creditor who shall apply for the same.

“Provided, that only such persons as are entitled to administer under this act shall have the right to nominate.”

It is conceded that a minor child is disqualified from acting as the administrator of the estate of a deceased person, but it is claimed by appellee that, notwithstanding such disqualification, such a cMld would still be “entitled” to act as an administrator if he was of age, and that by reason of this fact he would have the power to nominate.

Section 18 also contains a provision: “And further provided, that no nonresident of this State shall be appointed or act as administrator or executor.” In the case of In re McWhirter’s Estate, 235 Ill. 607, where it appeared from the facts that the widow and heirs at law of the deceased, all of whom were nonresidents, sought to nominate an administrator, the court held that from the fact that the widow and heirs were nonresidents, they were not entitled to administer and therefore could not nominate the administrator. The same reasoning must be applied to the facts in this case. This minor child could not be appointed administrator and therefore was not entitled to administer, and not being entitled to administer could not nominate the administrator. His next friend had no further rights or powers in the premises than he had. No one has a vested right to administer, but that right and the right to take property by descent or by will rests in the State and is controlled by statute. In re McWhirter’s Estate, supra.

The judgment of the Circuit Court is reversed and the cause remanded with directions to enter an order in conformity with this opinion.

Reversed and remanded with directions.


author: Mr,. Justice Eldredge

text:
    Robert H. Headen et al., Appellees, v. Mark C. Cohn, Appellant.
    1. Equity, § 36<5

      -^what not admitted by want of replication. While it is true that upon a hearing on a hill and answer, when no replication is filed to the answer, the averments of facts in the answer are taken to he true, yet the want of a replication to the answer does not admit the legal conclusions of the pleader.
    2. .Statutes, § 279*—when foreign statutes must be pleaded and proven. Judicial notice will not be taken of foreign statutes, but they must be pleaded, and, if not admitted, proven.
    3. Descent and distribution, § 9*—what State law governs. As the rule that distribution of personal property is to be made in accordance with the law of the domicile of the testator or intestate, as the case may he, prevails in this State and likewise in California, distribution of the Illinois personalty of the estate of a deceased wife, resident in California, was properly made in the proportion of half to the California husband and half to the Illinois brothers and sisters, notwithstanding the conclusion as to the California law of descent in the husband’s answer which, admitting the California law in part as set out in the petition, stated that certain additional sections of such law set out by him permitted “the property to descend according to the Illinois law of descent, which provides the surviving husband takes all.”
    4. Partition, § 66*—when court may retain jurisdiction on death of party after entry of order of distribution of personalty involved. The trial court in a partition suit involving the distribution of personalty, in which one of the. heirs died after the entry of the order of distribution, was well within its power in retaining jurisdiction without directing the funds to he distributed through the process of. administration.
    Appeal from the Circuit Court of Morgan county; the Hon. Norman L. Jones, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed April 29, 1919.
    Rehearing denied July 9, 1919.
    Dean Hill and Beach & Trapp, for appellant.
    Owen P. Thompson, P. P. Thompson, Bellatti, Bellatti & Moriarty and W. N. Hairgrove, 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.

The matter in controversy on this appeal grows out of an order of distribution entered in a partition suit in the Circuit Court of Morgan county. This order of distribution provided that $7,309.08 be paid to each of eight distributees, who were all brothers and sisters. After the order was entered, but before the master in chancery could carry it out and pay the money to the distributees, one of them, Hannah N. Headen Cohn, died. At the time of her death she was a resident of the State of Califomia. Hpon her death Mark C. Cohn, her surviving husband, and appellant here, was appointed administrator of her estate in San Francisco county, California, and her sister, Margaret H. Kellam, and brother, Robert H. Headen, were appointed joint administrators of her estate in Morgan county, Illinois. Subsequently the surviving brothers and sisters of Mrs. Cohn presented their supplemental petition in the partition suit in which they advised the court of all the above facts and alleged that Mrs. Cohn died intestate leaving no child or children her surviving, but left surviving her husband, appellant, and her said brothers and sisters as her only heirs at law; that there remained in the hands of the master the sum of $7,309.18, being the amount of her distributive share, and that the statute of the State of Califomia in reference to the descent and distribution of personal property of persons dying intestate is as follows:

“If the decedent leaves no issue, the estate goes one-half to the surviving husband or wife, and the other half to the decedent’s father and mother in equal shares, and if either is dead the whole of said half goes to the other. If there is no father or mother, then one-half goes in equal shares to the brothers and sisters of decedent and to the children or grandchildren of any deceased brother or sister by right of representation. ’ ’

The prayer of the supplemental petition is that the court enter an order directing the master in chancery to pay one-half of said sum to the seven surviving brothers and sisters of the decedent, share and share alike, and the other half to appellant, or that he be directed to turn over all of said fund to the Illinois administrators. Appellant filed an answer to the supplemental petition in which he admits that the law of the 'State of California is as set out in the supplemental petition, but avers that said law does not apply to the personal property in this State because it is especially excepted by the statutes of California, wherein, it is provided that said law of descent concerns only property in the State of California or property in a State having the same law of descent as the State of California, and that the law of descent of the State of Illinois is different from said law of descent of the State of California in that the surviving husband takes all of the personal property -of the deceased wife dying without issue. With his answer, he filed a cross petition, in which he set up all the foregoing facts and prayed for an order of the court directing the master in chancery to turn over all of said money to him as such administrator. The cross petition was answered by the parties and a hearing was had by the court upon the supplemental petition and the answer of appellant thereto, and the cross petition and the answers of appellees thereto and the replication to said answers by appellant. The court rendered a decree finding the shares of the parties as fixed by the law of descent of California, one-half to appellant and one-half to appellees, share and share alike, subject to the debts of the estate; that the court has jurisdiction of the fund and of the parties and would order payment of such debts of the estate as were satisfactorily proven to said court, and, after the payment of said debts, would order a distribution.

As we understand appellant’s contention, it is to the effect that, by virtue of the statute of the State of California, because the laws of descent of the State of Illinois are different from those of the State of California, therefore the distribution of the personal estate of the decedent located in this State at the time of her death should be made in accordance with the laws of Illinois and not with that of California. It is conceded by appellant that no such statute of the State of California is set out in any of the pleadings or introduced in evidence, but it is insisted that his averments in reg’ard thereto set out in his answer to the supplemental petition are conclusive upon this question for the reason that no replication was filed by appellees to his answer. We quote from the abstract the substance, of these averments in appellant’s said answer: “Admits the law of California in part as set out in the petition, but says additional sections in said law of descent permits the property to descend according to the Illinois law of descent, which provides the surviving husband takes all.” These are not averments of fact, but are pure conclusions of law and are but a legal construction placed upon the law of descent of the State of California by appellant. While it is true that upon a hearing on a bill and answer when no replication is filed to the answer, the averments of facts in the answer are taken to be true (Sheahan v. Madigan, 275 Ill. 380; Roach v. Glos, 181 Ill. 445), yet the want of a replication to the answer does not admit the legal conclusions of the pleader. Courts will not take notice of foreign statutes, but they must be pleaded, and, if not admitted, proven. Hyman v. Bayne, 83 Ill. 256; Shannon v. Wolf, 173 Ill. 253. It is the universal rule in this State that distribution of personal property is to be made in accordance with the law of the domicile, of the testator or intestate, as the case may be. Dickinson v. Belden, 268 Ill. 105; Russell v. Madden, 95 Ill. 485; Young v. Wittenmyre, 123 Ill. 303. And the same rule prevails in California. Estate of Apple, 66 Cal. 432; Whitney v. Dodge, 105 Cal. 192; In re Laihrop’s Estate, 165 Cal. 243. The court was also well within its power in retaining jurisdiction of the fund and adjusting the rights of the parties without directing the funds to be distributed through the process of administration. Moore v. Brandenburg, 248 Ill. 232; Lewis v. Lyons, 13 Ill. 117; People v. Abbott, 105 Ill. 588; Grattan v. Grattan, 18 Ill. 167.

The decree of the Circuit Court is affirmed.

Affirmed.