text:
    M. O. Allmon et al., Appellees, v. Salem Building & Loan Association, Appellant. William A. Mills, Trustee.
    1. Building and loan associations, § 23

      —when act of director in own behalf notice to association. The fact that a director of a building and loan association assigned stock owned by him as collateral security, without the transfer being recorded on the books of the association as the by-laws required, does not charge the association with notice of the assignment, since the director acted for himself and not the association in the transaction.
    2. Building and loan associations, § 34

      —when evidence not sufficient to show notice of assignment of stoclc. The evidence in an action against a building and loan association to recover the matured value of shares paid to the recorded holder without requiring the surrender of his certificate, which had been previously assigned to the plaintiff as collateral security without being recorded on the hooks of the association as its by-laws required, held hot to show that the association had notice of the assignment.
    3. Building and loan associations, § 34

      —when association liable to unrecorded holder of shares as collateral security. A building and loan association which paid, without notice of the assignment of stock as collateral security, the matured value thereof to the assignee, the holder of record is not answerable to the assignee, where the assignment was not recorded on the books of the association as its by-laws required.
    4. Building and loan associations, § 33

      —when association liable to unrecorded holder of shares as collateral. Where a building and loan association without notice of an assignment of a certificate of stock as collateral security, which was not recorded on the books of the association as its by-laws required, paid the matured value thereof to the assignor, the holder of record, without requiring a surrender of the certificate, and the assignee, on learning of the payment, did not protest to the association, demand restitution nor give any notice leading it to believe that he intended to hold it liable for the amount of the payment, but subsequently accepted interest on the secured debt from the assignor, and waited nineteen months before bringing action against the association, held guilty of • laches sufficient to bar a recovery.
    Appeal from the Circuit Court of Marion county; the Hon. Thomas M. Jett, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded with directions.
    Opinion filed May 1, 1915.
    Kagy & Vaudervort, for appellant.
    Noleman & Smith, for appellees.

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

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

   Mr. Justice Higbee

delivered the opinion of the court.

On April 15, 1913, M. O. Alimón, Nellie H. White, Ida M. Pullen and Tina V. Cole, appellees, filed their bill in chancery in the Circuit Court of Marion county, Illinois, against appellant and William A. Mills, as trustee in bankruptcy for John S. Stonecipher, bankrupt, asking- that appellant be decreed to issue to them forty-six shares of the matured capital stock of said association of the par value of $4,600 or to pay them the principal sum of $4,000 and certain accrued interest, said to amount to the sum of $500, and for general relief.

The facts upon which the suit is based, as set forth in the bill, were in the main not disputed on the trial and are substantially as follows: On August 12, 1904, H. L. Alimón, the father of appellees, loaned to John S. Stonecipher the sum of $2,000 and took his note of that date for said sum due one year after date, with interest at the rate of six per cent, per annum and afterwards, on September 10, 1906, said Alimón loaned said Stonechiper a like amount and took his note for $2,000 of that date, due six months after date, also with interest at the rate of six per cent, per annum. At the time the second note was given, Stone-cipher assigned and delivered to said Alimón thirty-six shares of stock of said appellant building and loan association, to secure the payment of said notes. H. L. Alimón died intestate February 5, 1908, and appellees, as his heirs at law, became the owners of the notes and received the certificates of stock. The notes were never paid but Stonecipher paid the interest on the same each year up to and including the year 1911. The certificates of stock of the building association delivered to Alimón as aforesaid each bore on its face the statement that the same was “transferable on the books of the association in person or by attorney upon surrender of this certificate.” None of the certificates of stock were so transferred but remained upon the books of the association in the name of said Stone-cipher. Section 4 of article 6 of the charter of the appellant building and loan association which was offered in evidence is as follows: “Any member of this association may transfer to any other person any or all of the unredeemed shares held by him or her on which there are no arrearages of dues and fines, on payment to the association of twenty-five cents for each share transferred. All transfers shall be made in the presence of the secretary who shall record them in a book purchased and kept by him for that purpose alone; and they shall also be indorsed on the certificate transferred. In each case the transferee shall be entitled to all the privileges of the original holder; but no transfer shall be valid and complete until the foregoing provisions have been complied with.”

In December, 1911, M. O. Alimón, who also represented the other owners of the four certificates covering the stock in question, presented the same to Mr. Larimer, the secretary of the association, and made inquiry concerning them and as to whether Mr. Stone-cipher owned them. The secretary referred to his books and told him that the certificates had been paid as they matured to Mr. Stonecipher; that the amount due on sixteen of the shares had been paid to Stone-cipher on June 18, 1908; on ten shares, January 28, 1909; and on the remaining ten shares, May 15, 1909. M. O. Alimón testified that he told the secretary at the time referred to that he and the other appellees held the certificates as collateral security, but the secretary denied this statement and said the fact was not brought to his knowledge until this suit was instituted. Stone-cipher at the time the money was borrowed was considered a man of large means, and at the time he received the money for the stock from the secretary was a director of the building and loan association. On January 28, 1913, Stonecipher was adjudged a bankrupt but appellee, M. O. Alimón who held the certificates of stock, stated he considered the financial condition of Mr. Stonecipher good up to the first of the year 1912; that up to that time he thought the notes could be collected directly from Mr. Stonecipher and that he collected the last interest on them on December 10, 1911.

The couit found the equities to be with appellees, the decree finding that the certificates were held by and hypothecated with H. L. Alimón in his lifetime and have been so held by his heirs since his death; that each of said certificates was assigned by indorsement on the back thereof by the said Stonecipher at the time of its delivery; that said association had paid the certificates upon their maturity to said Stone-cipher without requiring the surrender of any or either of the same;-that by so paying over to Stonecipher the amount due on said several shares of stock without requiring him to surrender the certificates for cancellation, the association violated the trust cast upon it and became and was responsible to appellees for any injury sustained by reason of such misconduct; that it was the duty of the association to require the surrender of said certificates upon the payment of the amount due on said shares of stock; that at the time said payments were made to said Stonecipher, the association had notice that said certificates had been assigned to and hypothecated with H. L. "Alimón in his lifetime and were then hypothecated with and held by appellees as security for said notes, and that said Stonecipher had no interest therein. And it was decreed that appellant association pay to appellees, within forty days from the date of the decree, the sum of $3,600, and that upon payment of said sum they surrender said certificates to said association.

We find nothing in the proofs to show that the association knew of the transfer by delivery and indorsement of the certificates by Stonecipher to H. L. Alimón prior to December, 1911, a date long after the matured value of the same had been paid to Stonecipher. While it is true that Stonecipher knew of the transaction and that he was a director of the association at the time payment was made, yet his knowledge of the facts could not be charged against the association, as in acquiring such knowledge he was not acting for the association but for himself, and his actions as a whole were in effect hostile to the association. Gilkeson v. Thompson, 210 Pa. 355, Aycock Bros. Lumber Co. v. First Nat. Bank of Dothan, 54 Fla. 604; Teagarden v. R. B. Godley Lumber Co., 105 Tex. 616. Notice to a director of a bank acquired by him not in the bank’s business but privately is not notice to the bank. Black v. First Nat. Bank, 96 Md. 399. In Home Savings & State Bank v. Peoria Agricultural & Trotting Society, 206 Ill. 9, it was held that knowledge obtained by a director of a bank when he was negotiating for the purchase of a lot for himself, that the title was held in trust, did not of itself charge the bank, which had a judgment against the holder of the legal title, with notice so as to defeat its levy” and sale of the land on such judgment. We conclude that the facts an this case do not show circumstances which warrant the holding of the decree that, at the time of the payment of the amounts due on the certificates to Stonecipher, appellant had notice that they were held by any one else as collateral.

The statute in relation to homestead loan associations (Hurd’s Rev. St. 1912, ch. 32, par. 83, sec. 6a, J. & A. ¶ 2598) under which appellant was organized, provides: “The shares shall be deemed to be personal property in the hands of the members, transferable upon the books of the association in the manner provided in the by-laws;” and the by-laws provide, as above set forth, that all transfers shall be made in the presence of the secretary who shall record them in a book purchased and kept by him for that purpose alone, and shall be indorsed on the certificate transferred; and that no transfer shall be valid and complete until the foregoing provisions shall be complied with. Notwithstanding these provisions, we find the law early settled by the decisions in this State, and not since disturbed, that as between the assignor and assignee, a transfer on the books of the secretary was not necessary. Wetherell v. Thirty-first St. Building & Loam Ass’n, 153 Ill. 361. But it has also been held that in the absence of such action neither party could set up a transfer by indorsement and delivery as against the rights of third parties or the corporation. In the case of Kellogg v. Stockwell, 75 Ill. 68, quoted with approval in many later cases, it is stated: “The provision in the charter that shares are transferable only on the books of the company, is designed for the protection of the corporation, or perhaps a purchaser without notice.” It was held, however, in that case that as between the vendor and vendee, a sale and transfer would be good without being entered upon the company’s books and would be enforced in equity, that is, in effect, that it was a good equitable transfer of the stock. In People’s Bank of Bloomington v. Gridley, 91 Ill. 457, in speaking of transferring stock as a pledge, it is said: “This may be effected by a formal or even a blank indorsement or assignment of the certificate, and delivery of the same to the assignee. Nothing more is ordinarily required to complete the contract as between the immediate parties. But, as to third parties, something more is commonly required. Some such visible or ascertainable index of the change of ownership as will naturally put those interested in the question upon inquiry, and thus lead them to correct information upon the subject, must exist.” See also, Otis v. Gardner, 105 Ill. 436. The difference between a share of stock and a certificate of stock must be borne in mind, as the latter is only evidence of the ownership of the former. “A share of stock is defined to be a right which its owner has in the •management, profits and ultimate assets of the corporation. * * * The title to stock is created by registry in the books of the corporatioii. The certificate is not the stock itself, but only evidence of the ownership of the stock. It has value only as such evidence, and apart from the shares which it represents it is utterly worthless. It is not essential, and a registered stockholder may exercise all his privileges without it. He has power to transfer his stock, to receive dividends and to vote, and he is individually liable as a stockholder although without the usual voucher in the form of a certificate.” Colton v. Williams, 65 Ill. App. 466.

The conclusion must therefore be reached in this case, that notwithstanding, the transfer of the certificates by Stonecipher to Almon constituted an equitable assignment of the stock to the latter as between "the parties, yet the failure of the parties to cause the transfer to be made in the presence of the secretary and recorded in the books of the association, as required by the constitution, and the absence of all notice to the company of the transfer of the stock, justified the secretary in relying on the evidence of ownership shown by the book of the association kept for that purpose, and authorized him to pay the matured value of the shares to Stonecipher and protected the association from loss by reason of such payment.

We are further of opinion that appellees were guilty of laches in not seeking to establish their claim to the shares of stock in question at an earlier date. Stonecipher being a man supposed to have large property interests, appellees were not disturbed when they discovered, through M. O. Alimón in December, 1911, that the matured value of the stock had been paid to the former as it came due, the last block of shares having been paid more than two years prior to that time. At that time M. O. Alimón neither protested against the action of the association nor did he demand restitution, or take any steps or give any notice that would lead the association to believe appellees intended to hold it liable for the amount paid to Stonecipher on said shares, and at that time the notes, it is claimed the shares were to secure, were long since due. M. O. Alimón testified as above stated that he collected interest from Stonecipher on December 10, 1911, and that he considered him financially good in the early part of 1912. In fact no steps appear to have been taken to enforce appellees’ claim to the shares of stock in question until after Stonecipher had been adjudged insolvent, and this suit was not brought until about fifteen months after appellees had learned of the payment made by the secretary of the association to Stone-cipher of the amount due on the shares. Had appellees protested at once when they learned of such payment and notified appellant they expected to hold it responsible for the amount paid, the latter could have taken steps to protect itself, if it so desired, at a time when Stonecipher was still apparently in sound financial condition. It would be manifestly inequitable to permit appellees, with full knowledge of the facts concerning the payment, to act as though they acquiesced therein and thereby lead appellant to believe that no claim would be made upon it by them on account of the certificates held by them, and then, after the unexpected had happened and the man whom they considered financially good had become insolvent, assert and enforce a claim for payment of the shares in question from appellant, when it was too late for the latter to protect itself as it might otherwise have done. Appellees were guilty of such laches in the respect above stated as should bar them from the right of recovery under the circumstances of this case. The decree of the Circuit Court will be reversed and the cause remanded with directions to the court below to dismiss the bill for want of equity.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Justice Higbee

license: Public Domain

text:
    B. F. Bachman, Administrator, Appellee, v. Roy Wilkins, Administrator, Appellant.
    1. Executors and administrators, § 532

      —when interest charged against administrator conclusive on appeal. Where the amount of interest chargeable against an administrator to collect is fixed by-stipulation in the lower court, it cannot he questioned on appeal.
    2. Executors and administrators, § 559

      —when administrator to collect deprived of commissions by failure to deliver property to successor. An administrator to collect, held not to have neglected or refused to turn personalty over to his successor on demand, so as to deprive him of his right to commissions.
    3. Executors and administrators, § 561

      —amount of commissions of administrator to collect. An award of $2,000 as commissions to an administrator to collect, held not excessive under the circumstances of the case.

      4. Executobs and administbatobs, § 526

      —when allowance of attorneys’ fees not excessive. An allowance of $1,800 as attorneys’ fees to an administrator to collect, held not excessive.
    5. Executobs and administbatobs, § 558

      —when costs of proceeding payable from estate. An order requiring the payment from an estate of the costs of a proceeding pertaining to the allowance of commissions and attorneys’ fees to an administrator to collect, held not erroneous.
    Appeal from the Circuit Court of Marion county; the Hon. Thomas M. Jett, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed May 1, 1915.
    Kagy & Vandervort, for appellant.
    Bundy & Wham, C. H. Holt and E. D. Telford, 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 Higbee

delivered the opinion of the court.

About July 1, 1908, Demalian Justice was appointed administrator of the estate of Sea Bird Wilkins, deceased. Shortly thereafter an appeal was taken from the order appointing him, and pending the litigation B. F. Bachman was appointed administrator to collect, of said estate. Upon his appointment, Justice turned over to him $6,101.36 cash, notes and accounts amounting to something over $25,000, and certain property appraised at $2,118.15. On appeal it was finally decided that Justice had no right to administer on said estate and thereafter on March 16, 1912, Boy Wilkins was appointed administrator of said estate by the County Court. This appointment was contested by the public administrator but was affirmed by the Circuit Court and by the Appellate Court (Bundy v. Wilkins, 183 Ill. App. 560), and later a petition for writ of certiorari was denied by the Supreme Court, making the opinion of Appellate Court final. (See also, for previous history of case, Justice v. Wilkins, 251 Ill. 13, reversing 158 Ill. App. 504.) Thereafter on January 13, 1914, the records and files were certified to the County Court of Marion county in order that said administrator might proceed with the duties of his office, and on January 15th, Boy Wilkins as such administrator, whom we shall hereafter designate as appellant, made a written demand on B. F. Bachman the administrator to collect, the appellee here, that he turn over to appellant all the money and property of Sea Bird Wilkins, deceased, which had come to his hands or possession. Appellee failed to turn over any money in response to this demand, and on February 2,1914, a second demand of like import was served upon him, and about this time appellee paid to appellant the sum of $10,000, but retained the balance of the money belonging to the estate. Later, on February 24th appellant served a third notice on appellee in which he demanded the balance of the money due. Appellee refused to pay over this balance unless appellant would agree to allow appellee to retain the amount claimed by him as commissions and for his attorneys’ fees. Ño agreement having been reached upon these questions, appellee on March 11, 1914, filed a petition in said County Court asking that his attorneys’ fees and commissions be fixed by the court. On April 9th the case was heard and appellee’s commissions fixed at $1,200, and his attorneys ’ fees at $2,000, and from the order fixing these amounts an appeal was taken to the Circuit Court by the administrator, Boy Wilkins, and others interested in the estate. On April 15, 1914, appellee filed his final report as administrator to collect in the County Court, showing the amounts received and paid out by him from his appointment until the filing of said report. This report showed he had received $23,870.98, and had paid out, including the $10,000 theretofore paid appellant, the sum of $15,577.37, leaving a balance in his hands of $8,293.61. Among other items, for which he took. credit in Ms report as having been paid out, were the $1,200 allowed him as commissions and the $2,000 allowed for attorneys’ fees. A few days later tMs report was approved and thereupon appellee paid said sum of $8,293.61 to appellant but the admimstrator, Eoy Wilkins, and others interested took an appeal from the order approving said report to the Circuit Court. Objection filed to appellee’s final report was that he had failed to pay over to appellant as admimstrator of said estate the personal property and assets in Ms hands on demand as required by statute, and had thereby forfeited all right and claim to commissions and attorneys’ fees; also that appellee had taken possession of a large sum of money, to wit, the sum of $20,000, which he had held on deposit in banks bearing interest for more than six years, and that no account for interest so received had been made by him.

Two separate appeals were prosecuted from the order of the County Court approving appellee’s report, one from the order fixing the fees of his attorneys and the other from the order fixing the commission of the administrator to collect, but they were tried in the Circuit Court at the same time and practically as one case. On the hearing, the Circuit Court entered an order finding that appellee should be charged with $600 interest received by him, and that he should be credited with $1,200 for Ms fees and commissions as administrator, and the court also found that he was entitled to retain $1,800 for his attorneys’ fees and that the costs of suit should be paid in due course of administration. The amount of $600 for interest, which the court found should be charged against appellee, was agreed upon and made a matter of stipulation between the parties. Two separate orders, however, were entered by the Circuit Court, one relating to appellee’s commissions and the interest received by him, and the other relating to the attorneys’ fees wMch he was allowed to retain. From each of these orders an appeal was taken to this court, but the records filed here appear to be identical, except as to the two orders of the Circuit Court referred to, and the same briefs are filed in each case, so that for the purpose of convenience, the two appeals have been consolidated in this court and will be treated as one.

Some question is raised by appellant in his brief, concerning the interest item charged against appellee, btit as the matter of interest was settled by stipulation in the Circuit Court, as above stated, it cannot be permitted to be raised on this appeal. It would appear from the proofs that the amount of $1,200 allowed appellee for his commissions for caring for an estate the size of this one for some five and one-half years, and doing all the work necessary to make the collections of the money due it, was a reasonable charge, especially in view of the fact that he was himself charged with $600 for interest on the fund held by him; but appellant contends that he was in fact not entitled to make any charge for his commissions or receive anything therefor, for the reason that he had not delivered over the money and property in his hands to his successor when demand was made therefor. In support of this claim he refers to section 17 of chapter 3 of the Eevised Statutes (J. & A. If 65), which provides that it shall be the duty of an administrator to collect, “to deliver, on demand, all property and money of the deceased which shall have come to his hands or possession (saving such commission as may be allowed by the Court), to the person or persons obtaining such letters; and in case any such collector shall refuse or neglect to deliver over such property or money to his successor, when legal demand is made therefor, such person so neglecting or refusing shall be liable-to pay twenty per cent, over and above the amount of all such property or money as comes to his hands by virtue of his administration, and is not paid or delivered over as aforesaid, and shall forfeit all claim to any commission for collecting and preserving the estate.” Appellant also contends that because appellee refused to turn over the estate promptly on demand he was guilty of wilful default in his conduct in the administration of the estate, and that compensation should therefore be refused to him. Our attention is called by appellant to the case of Whittemore v. Coleman, 239 Ill. 450, where it is held that an administrator is not entitled to compensation where he has been guilty of a flagrant disregard of duty in connection with the administration of the estate of which he has had charge. He also refers to the case entitled In re Estate of George Wincox, 186 Ill. 445, where it was held that under the section of the statute above referred to, an administrator to collect, who neglected to deliver and pay over the funds of the estate to his successors upon demand as required by statute, had forfeited all claim to his commissions. But in that case the administrator appears to have wrongfully collected the funds and misappropriated them.

The proofs in this case do not show that appellee Bachman was guilty of any disregard of his duty or any maladministration of his office which would prevent him from claiming and being rightfully allowed his reasonable commissions and attorneys’ fees as such administrator. He in fact appears to have been specially diligent in collecting and securing assets of the estate and in protecting and caring for the funds which came to his hands for the benefit of those entitled to them. A portion of said fund was indeed paid over shortly thereafter, and the balance appears to have been retained only because there was a dispute between the two administrators as to the amount which should be retained by appellee for commissions and attorneys’ fees. To procure the determination of these matters, appellee himself filed a petition to have the correct amounts fixed by the County Court, and when that court made an order in pursuance of such petition, he immediately paid over to appellant all of said funds except the amount he was allowed to retain for such commissions and fees as aforesaid. We think the court below properly allowed the commissions to appellee and that the amount fixed by it was reasonable.

What is above said as to the propriety of allowing commissions to appellee applies with equal force to the allowance to him of his reasonable attorneys’ fees, and the only question in that behalf for us to determine is whether or not the amount allowed in the Circuit Court, which was less by $200 than the sum fixed by the County Court, was so unreasonable as to demand a reversal of the order of the Circuit Court fixing the same. The total amount of cash received by the administrator was $23,870.98, and the proof shows the estate to have been in such a condition, owing to the negligent manner in which the intestate looked after his affairs, that a great deal of care and labor were required to collect the amounts due it. Many of the notes were outlawed, but steps were taken by the administrator, through his attorneys, to collect them as well as the other notes, if possible. Some twenty-six suits were broug’ht upon notes in the Circuit Court, and ten others before a justice of the peace. Three attorneys were employed by appellee but they were so employed with the understanding that they would charge but one fee for their services. The proofs show that appellee was in frequent consultation with his attorneys and that they were constantly rendering service to him. A number of the attorneys of the Marion county bar were examined as witnesses in reference to the question of what would constitute a reasonable and the customary fee in that county for the services rendered appellee by his attorneys. The three attorneys who rendered these services were each witnesses and fixed the value of their fees • for the services rendered at the sum of $2,500. Seven other attorneys fixed the fees at amounts ranging from $2,200 to $2,500. Only three witnesses were examined on this question on behalf of appellant. Two of these testified that in their opinion $1,200 would be a reasonable fee for the services rendered and the other, while his testimony was not definite, appeared to have fixed it at about the same amount. It is to be noted however that two of these witnesses for appellant were not practicing attorneys of Marion county, but each of them, while holding the office of county judge in another county, had occupied that bench in Marion county on several occasions and they did not claim in their testimony to be familiar with the usual and customary fees, in cases such as this, in Marion county. The other witness for appellant, upon this subject, stated that he had practiced law in the county about fifty years and that he knew what the usual and customary fees were in “antediluvian times,” but that he supposed fees were higher now than they were when he was in the active practice of the law. The county judge who heard the proofs fixed the amount which should be allowed as the usual and customary attorneys’ fees for the services rendered to appellee at $2,000. In the Circuit Court this amount was reduced to $1,800, and when we consider the period covered by these services and the extent of the services rendered, we are not prepared to say that the amount allowed for this purpose in the Circuit Court was so unreasonable as to warrant a reversal of the cause.

It is further contended by appellant that the Circuit Court erred in ordering that the costs of this proceeding be paid by appellant Boy Wilkins, as administrator, in due course of administration. We do not agree with appellant’s contention in this matter, as the proceeding, so far as appellee was concerned, consisted only of the filing of his report, which was part of his duties as administrator to collect, and all appeals therefrom were taken by appellant and certain heirs of the estate interested with him and grew out of objections filed by them. Under these circumstances, it was right that no costs should be taxed against appellee. The order and judgment of the Circuit Court in this case will be affirmed, and as the two appeals connected with the report of final settlement made by appellee have been consolidated in this court, the order of affirmance will apply to both alike.

Affirmed.


text:
    W. J. Simer, Administrator, Appellee, v. Earl Hults, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Marion county; the Hon. Albert M. Rose, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed May 1, 1915.
    Statement of the Case.
    Action of replevin by W. J. Simer, administrator of the estate of Charles W. Simer, deceased, against Earl Hults. .From a judgment in favor of the plaintiff, the defendant appeals.
    Defendant claimed to have purchased from Charles W. Simer, plaintiff’s intestate, in his lifetime, the property in dispute, consisting of live stock, farming tools, hay and grain. Defendant was an unmarried man who lived with the deceased, his brother-in-law, both farming and working together. Defendant sought to establish his ownership of the property by showing that from time to time Simer borrowed different sums of money from him and gave notes therefor; that on July 16, 1910, the total amount of these notes was $1,850, and that one note was then given by Simer for the whole amount; that afterwards Simer borrowed an additional amount and gave defendant a note for $335; that in the fall of 1911, after the large note was due, deceased sold and transferred the property in question to defendant, and, in payment therefor, defendant delivered up to him the $1,850 note; that thereafter and until the death of Mr. Simer, defendant lived with him and held possession of the property on the premises. The property in dispute was not inventoried by the administrator, nor did it appear to have been claimed by him as part of the estate until about the time this suit was brought. Defendant attempted to prove the existence of the $1,850 note by the testimony of a brother and the latter’s wife, to the effect that a note for that amount, signed by the deceased, payable to defendant, was left by defendant in their possession in 1911, and that afterwards, during the lifetime of Simer, defendant got the note; that the note was attached to a stub which was introduced in evidence, and that the stub bore a correct description of the note left in their possession and later taken away by defendant.
    An instruction given for plaintiff told the jury: “If you believe from the evidence in this ease that Charles W. Simer, the plaintiff’s intestate, had in his lifetime purchased or raised or became the owner of the property in question, and if you further believe from the evidence that he had the property in question in his possession at the time of his death, then such possession is prima facie evidence of the title of the property in Charles W. Simer at the time of his death and in his administrator after his death.”
    Noleman & Smith and Earl C. Huggins, for appellant.

      Abstract of the Decision.
    1. Bills and notes, § 421

      —evidence to show existence of note. Testimony of a person that the payee left with him a note signed by a person since deceased, which he fully described- by reference to the stub of a book to which it was attached, and that during the lifetime of the alleged maker the note was returned to the payee, is competent as bearing on the existence of such a note.
    2. Witnesses, § 141

      —when surviving payee may testify as to possession of note. The payee of a note, alleged to have been returned to the maker in his lifetime in exchange for chattels, may testify in an action of replevin prosecuted by the maker’s administrator, that he had not had possession of the instrument since the death of the maker.
    3. Replevin, § 147

      —instruction as to presumption of title from possession of chattels. An instruction in an action of replevin, that evidence of the possession of chattels at the time of a person’s death was prima facie evidence of his title, held erroneous.
    Kagy & Vandervort, for appellee.

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

   Mr. Justice Higbee

delivered the opinion of the court.


text:
    James R. Brown, Appellee, v. Frank Leppo and Asher R. Cox, Appellants.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Marion county; the Hon. Thomas M. Jett, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed May 1, 1915.
    Statement of the Case.
    Action brought by James R. Brown against Frank Leppo and Asher R. Cox to recover damages to real estate claimed to have been caused by the wrongful and negligent acts of the defendants. From a judgment for three hundred dollars in favor of the plaintiff, the defendants appeal.
    The evidence showed that the plaintiff owned a tract of land adjoining another tract called the Finty forty, which was covered with heavy timber, while the plaintiff’s land was practically clear, and prior to 1909 had at times been under cultivation. A creek ran through both tracts, which at times overflowed its banks and injured the crops on the plaintiff’s land; that in the spring of 1909 the defendants, Frank Leppo and Asher R. Cox, purchased the timber on the Finty tract, with the right to remove it, and in the fall of that year they commenced cutting and making it up into saw timber, railroad ties, and that they were so engaged for several years; that in accomplishing the work a number of persons were employed by defendants and the work was to some extent divided up; that one man or set of men undertook the cutting of timber and working it up into ties, for which they were paid so much a tie, while others cut the saw timber, being paid by the thousand feet log measure, and others were engaged in drawing the logs to the saw mill; that in the proseention of the work, trees were cut and permitted to fall into the creek, and that large tops; limbs and other debris from the cutting were also permitted to fall into the creek, and that in consequence drifts and dams were formed which obstructed the flow of the water; that while drifts at times prior to this had occasionally formed in or across the creek, they had been but temporary, as the floods and freshets washed them out and left the stream clear of obstructions; that also while the water in flood time formerly went out over parts of plaintiff’s land, it soon passed off down the creek doing little injury, but that since the brush and tops from the trees were thrown into the creek that the drifts became permanent; that the creek at some places was completely filled up, and that heavy rains could not remove them; that such heavy obstructions remained from year to year causing the water to spread out over appellee’s land so that in places where he was accustomed to raise crops it was now difficult to grow a crop and save it; that one year a matured crop of oats and a growing com crop were mined, and that subsequently other crops were damaged; that two or three acres were damaged by cakes'of ice which were pushed out over it, causing the soil to be afterwards removed.
    Abstract of the Decision.
    1. Watebs and wateb courses, § 32

      —when damages for flooding lands not excessive. A verdict in favor of the plaintiff for three hundred dollars, held not excessive for injuries to land and crops from the overflow of a stream as the result of brush and tree tops being cast into it so as to form an obstruction, during the defendant’s lumbering operations on adjoining land.

      Noleman & Smith, for appellants; George P. Ramsey, of counsel.
    Kagy & Vandervort, for appellee.

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

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

   Mr. Justice Higbee

delivered the opinion of the court.

2. Master and servant, § 836 —when doctrine of respondeat superior applies to action for flooding lands. One who purchases standing timber to be cut and removed- is answerable, under the doctrine of respondeat superior, for injuries caused an adjoining landowner from the obstruction of a stream by brush and tree tops cast into it by men employed by the defendant to cut the timber into saw logs, ties, etc., for a compensation to be determined by the amount cut by them.

3. Master and servant, § 856 —who are independent contractors. Men are employed, not for any fixed time, to cut and remove standing timber, held not independent contractors where they are paid according to the amount of timber they produce.

4. Waters and water courses, § 31 —instructions in action for flooding land. An instruction in an action for injuries sustained from the overflow of a stream from the obstruction thereof by brush and tree tops cast into it in lumbering operations, held not to assume that those who caused the obstruction were the servants or employees of the defendant where the instruction in fact left that question to the jury.

5. Waters and water courses, § 31*—instruction as to contributory negligence in action for flooding land. A requested instruction held properly denied, in an action against those cutting and removing timber, for damages to adjoining land from brush and tree tops being deposited in a stream so as to cause an obstruction, to the effect that if the plaintiff did not take steps to compel the owner of the land to remove the obstruction he was guilty of negligence contributing to his injury which would preclude a recovery, since it -tended to raise a false issue.

6. Waters and water courses, § 26*—when notice to remove obstruction from stream condition precedent to action for flooding land. The doctrine that there can be no recovery for the continuance of a nuisance erected by one on his own land, without a previous request or notice to remove it, does not apply to an action against persons other than a landowner, who cut and removed timber from land and obstructed a stream in doing so, to the injury of an adjoining landowner.


author: Mr. Presiding Justice McBride

text:
    The People of the State of Illinois for use of Mary Bothman, Sarah Landau, City National Bank of Murphysboro and First National Bank of Murphysboro, Illinois, Appellants, v. James W. Brown and the Title Guaranty & Surety Company, Appellees.
    1. Clerks of courts, § 25

      —who protected by bond of county clerh. The bond of a county clerk protects not only the county but also the interests of persons who may be injured by his official acts.
    2. Counties, § 75*—when county cleric does not act officially in negotiating order wrongfully issued to himself. A county clerk does not act officially in negotiating and selling county orders wrongfully issued in his own favor without an order from the board of supervisors.
    3. Counties, § 75*—when issue of order in own favor official act of cleric. The issue by a county clerk in his own favor of county orders without an order from the board of supervisors, with his seal attached thereto, held an official act.
    4. Counties, § 75*—when cause of obtaining money wrongful issue of county order by cleric. The official act of a county clerk in the issuing, without an order from the board of supervisors, of orders in his own favor, and not the negotiation and sale thereof, held the efficient cause of procuring money on them.
    5. Clerics of courts, § 25*—when county cleric’s sureties liable for money obtained on illegal orders. Sureties on the official bond of a county clerk held liable to a person who purchased from the clerk county orders wrongfully issued by him in his own favor without an order from the board of supervisors.
    Appeal from the Circuit Court of Jackson county; the Hon. W. W. Duncan, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded with directions.
    Opinion filed July 21, 1915.
    Isaac K. Levy, Martin & Glenn and John M. Herbert, for appellants.
    Denison & Spiller, for appellees.

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

This action was upon the official bond of James W. Brown as county clerk of the county of Jackson, against said Brown and his surety, the Title Guaranty and Surety Company.

The defendants filed a demurrer to plaintiff’s declaration. The demurrer was sustained and plaintiff elected to abide by his declaration, and judgment was rendered against the plaintiff for costs.

The declaration is in the usual form and avers the giving of said bond as county clerk on August 25,1910; its approval, and that said bond provides that if the said James W. Brown should faithfully discharge the duties of said office and pay over all moneys received by him as such officer, and render a just and true account of the same when thereupon required by law and well and truly perform all and every act enjoined by him according to the laws of Illinois, to the best of his skill ánd ability, then said writing obligatory was to be void, otherwise to remain in full force.

The declaration avers that it then and there became the duty of said Brown as such clerk to well and truly perform all and every act enjoined upon him by the laws of the State of Illinois, and as such county clerk to draw or issue no county orders or warrants against the revenue of said county on the treasurer of said county unless ordered and authorized to do so by the board of supervisors of said county. It is further averred that the said Brown did not perform his duty in this regard but during his said term of office as county clerk issued a large number of county warrants and orders against the revenue of the county on the treasurer thereof, aggregating the amount of towit, $20,000, without being ordered or authorized to do so by the county board and without any right to do so.

The declaration then avers the issuing to himself of thirty-one county orders, copies of which are filed with the declaration and made a part thereof, which were, for' value received, severally sold to the uses herein. A special breach is contained in said declaration for each order. The first special breach assigned is as follows: “That the said James W. Brown as county clerk of said county of Jackson, on to wit, the 17th day of September, A. D. 1912, did make and issue a certain county order, or warrant, of said County of Jackson, payable to himself or bearer, drawn on the Treasurer of said county for the sum of two hundred and fifty dollars, from the fees and salaries fund of said county, payable out of county tax of 1912, already levied, when collected, and that the said James W. Brown at that time on said account, nor is there county order, or warrant, to "the said Mary Bothman, and the plaintiff avers that at the time of the making and issuing of said county order, or warrant, the same had not been ordered or authorized by the County Board of Supervisors of said county, nor was there anything due from the said county to the said James ÍW. Brown at that time on said account, nor is there now anything due him from said county on said account.” The other special breaches are, in substance, the same as above except as to dates, amounts and parties to whom transferred. To said declaration the following amendment was made: “That the usees herein, and each of them was then and there induced to purchase said county orders and each and all of them by reason of the said James W. Brown, County Clerk as aforesaid, representing to each of them, the said usees, that there was then at the time said orders were respectively sold and delivered to them, due him, the said Brown, as County Clerk of said county, the said several sums in each of said orders respectively stated and represented, for fees and salaries as such County Clerk, out of the fees and salaries fund of said County.” The declaration then avers the debt to be $5,000 and damages $5,000. To this declaration the defendants interposed several demurrers, which were sustained by the court. The plaintiff abided by the declaration. The court gave judgment against the usees, to which exceptions were preserved.

The appellants seek a reversal of the judgment because of the decision of the lower court sustaining the demurrer to the declaration. Counsel for appellee in stating their position say: “We contend that the declaration in this case does not state a good cause of action, because the sale of the warrants to the usees was not an official act, but was the clerk’s own private speculation and transaction which was no part of his official duty, and which the law did not require him to do in the performance of his official duty, and therefore his surety is not liable.” Counsel for appellee further state that it appears the warrants have not been paid and the county not damaged, and lost nothing by reason of the negotiations of these orders; that: “This is an essential and material matter to be kept in mind throughout this argument.”

It is the contention of appellee that the declaration does not state a cause of action: First, because the county has lost nothing by the transaction, and that the bond does not protect these individuals even if they were injured in these particular transactions; second, that the acts of the clerk, at least that of selling and assigning the warrants, was not an official act, and “the thing that caused the injury, if one has been sustained, to the usees, was not the issuance of the warrants but the transfer or sale of them by Brown in his private capacity as contra distinguished from his official capacity; ’ ’ and then urges that the efficient cause which led to the obtaining of the money was the acts of the clerk in negotiating or selling the warrants and not the issuing of the warrants.

If it be true as contended by counsel for appellee that the bond given by the county clerk was principally for the protection of the county and not for the protection of individuals transacting business with the clerk, such as the appellants were, then there is nó occasion for any further consideration of this case. We do not agree with such contention, but are of the opinion that the bond is given to protect not only the interests of the county, but to protect the interests of any one who may be injured by the official acts of the clerk. “The object of an official bond is to obtain indemnity against the misuse of an official position for wrong purposes; and that which is done under color of office, and which would obtain no credit, except for its appearing to be a regular official act, is within the protection of the bond and must be made good by those who sign it.” Murfree on Official Bonds, sec. 211. “His sureties on his official bond-are liable for any failure on his part to perform an official duty, to any person suffering injury thereby.” Governor v. Dodd, 81 Ill. 162. Where the county clerk takes the acknowledgment of a deed and gives a false certificate of acknowledgment, he will be liable upon his official bond to any one injured thereby. People v. Bartels, 138 Ill. 322. We are of the opinion that any person injured by the official act of an officer is protected by such officer’s bond.

The next question to be considered is: Were the acts of the County Clerk Brown in the issuing of the warrants or orders and selling of the same official acts ? We do not believe that the act of negotiating and selling the warrant was an official act, but we are of the opinion that the act of issuing the warrant or order purporting to be issued by order of the board of supervisors, and the attaching of the seal to the order was an official act. “By an official act is not meant a lawful act of the officer. * * * It means any act done by the officer in his official capacity, under color and by virtue of his office.” Turner v. Sisson, 137 Mass. 191; Horan v. People, 10 Ill. App. 21; Mechem on Public Officers, sec. 284, and authorities cited in notes. The object of requiring official bonds is to obtain indemnity against the use of an official position for wrongful acts done under color of office. People v. Treadway, 17 Mich. 480; Campbell v. People, 154 Ill. 601.

Where the county clerk issued orders payable to himself that were unauthorized, such are within the rule and classed as official acts. “And the fifth class of demands, consisting of unauthorized county orders issued by Dunlap payable to himself, stands upon the same footing. The issuing of county orders were official acts, and making them payable to himself did not change the official into individual acts of the clerk.” Spindler v. People, 154 Ill. 639. So we cannot help but arrive at the conclusion that the issuance of the orders in question by Brown to himself were official acts for which the defendants would be liable to any person injured thereby, unless the act of negotiating and selling the orders and warrants by the clerk was of a character to relieve appellees from such liability.

It is strenuously insisted by counsel for appellees, “that in negotiating or selling warrants the clerk is acting not in an official capacity but in a private one, and that this is the efficient cause or thing that produced the injury and not the wrongful or fraudulent issuance 'of the order.”

And in support of this contention refers to cases of State v. Harrison, 99 Mr. App. 57, and that of National Surety Co. v. State Sav. Bank, 84 C. C. A. 187, 156 Fed. 21, which seem to adopt the view contended for by appellees. In arriving at its conclusion, however, the court in the latter case says: “The orders in question were apparently lawfully drawn, lawfully countersigned, and genuine. The natural and probable consequence of their issue was their presentation to the treasurer, to whom they were addressed, and payment of them by him. The statutes of the State made it his duty to pay authorized orders of that kind. The surety company was liable to the county, because the presentation to the treasurer and the payment of the orders by him were the natural and probable consequence of their issue, and might have been reasonably anticipated by any prudent person. Bight here is the radical and decisive difference between the position of the county and that of the bank. 'While the payment by the county was, in the ordinary course of business, reasonable and probable, the purchase of the orders by the bank on the assignments made in the name of myths by Bourne was not the natural or probable consequence of their issue. No one could have reasonably anticipated that a bank or any rational person would disregard the law which makes a nonnegotiable chose in action in the hands of an assignee subject to every defense existing in favor of the maker or purchase a non-negotiable order of the kind in question, and pay the purchase price thereof to one who was not the payee named therein without inquiring into the genuineness of the assignment and the genuineness of its execution. Such a purchase would be out of the ordinary course of business, unnatural, improbable, incapable of anticipation, and in no legal sense the natural and probable consequence of the issue of the orders. For these reasons the purchase by the bank cannot be held to have so resulted from the ‘misconduct in office’ of Bourne as to subject the surety company to liability to the bank for any loss it might have sustained by reason of its purchase.” It will be observed that the Federal Court in arriving at its conclusion in the case above quoted was influenced, and say so in their opinion, by the fact that the transfer of these orders to the bank was not the reasonable or probable course that such orders would take. While such may have been the law or rule in Minnesota, we do not understand it to be the rule or improbable result under the decisions of our court of the issuance of an order that it will be transferred to a bank or other person. In speaking of orders issued by the county clerk of Cook county, and in commenting upon the effect of the issuance of such orders, our Supreme Court says: “Nevertheless, in many of the States, including our own, it has become quite common in business transactions to transfer these instruments by written indorsements, in the same manner as if commercial paper, and this usage or custom prevails to such an extent that many courts of the highest respectability have recognized the validity of such assignments, for the purpose, simply, of enabling the assignee to sue in his own name, saving to the municipality all equities and defenses which would be available if the suit were brought in the name of the original payee. We perceive no substantial objections to this doctrine, and it is believed that public convenience will be promoted by its recognition. Indeed, the principle has already been recognized by previous decisions of this court. Newell v. School Directors, 68 Ill. 514; Turner v. P. & S. R. R. Co., 95 Ill. 134;” People v. Johnson, 100 Ill. 548.

Owing to the well recognized usage of our people in the transfer and purchase of orders or warrants of this character, especially when issued at a time when there is no money in the treasury, and the tax levied, but not collected, we do not believe that it would be unreasonable or improbable to assume that such an order would be presented to a bank or any other person having the means wherewith to purchase such order; and one of the principal matters depended upon by the Federal Court in arriving at the conclusion it did in the foregoing opinion, in our judgment, has no application to the laws and customs of Illinois. Besides, that was not an actioh upon the bond but was an action brought by the surety company to be subrogated to the rights of the County, after such surety had been compelled by virtue of its suretyship to pay money into the county treasury that had been taken therefrom by the State’s Savings Bank, The principies announced as to the fictitious 'orders and their transfer were in the argument of the case and not in a decision of the question here involved. We do not believe that the negotiation of these warrants were the efficient cause in procuring the money from appellants. The prime cause, and the one that was always present and acting, and without which nothing could have been accomplished by the clerk in the way of obtaining the money, was the issuing and presenting of a false order under the seal of the county clerk and purporting to have been issued by authority of the board of supervisors. We cannot understand how the sureties of a clerk who has committed a wrongful act in his official capacity can be released from liability for such wrongful act by his further continuing the wrongful act until he obtains that for which the first act in the series was perpetrated. The object of the giving of this bond was to protect persons from injury who transacted business with the clerk in his official capacity; and while it is true that the sureties are only liable for acts coming within the letter and spirit of their obligation, we believe that the issuing of these warrants and obtaining the money upon them was an act both within the spirit and meaning of the bond, and that the surety is liable for such injuries as these peopie may have sustained by reason thereof.

We are of the opinion that the court erred in sustaining the demurrer to the declaration, and the judgment of the lower court is reversed with directions to overrule the demurrer.

Reversed and remanded with directions.


text:
    Mary Bothman, Appellee, v. County of Jackson, Appellant.
    Assumpsit, § 44

      —when money wrongfully obtained by one person may be recovered from another. Where a county clerk issued illegal orders in his own favor and sold them to the plaintiff, and from time to time accounted to the county for a portion of them and paid it money to protect them, and when his wrongful conduct was discovered and further payment of orders stopped, the county had $2,760 more than it had previously paid out on such orders, held that the plaintiff could not recover such fund from the county in an action of assumpsit, where it did not appear that it was made up of money obtained by the clerk from the plaintiff.
    Appeal from the Circuit Court of Jackson county; the Hon. A. W. Lewis, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed July 21, 1915.
    W. A. Schwartz, W. F. Ellis and C. E. Feirich, for appellant.
    I. K. Levy, Martin & Glenn and John M. Herbert, for appellee.

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

The appellee recovered a judgment in the court below for $1,381.35, which she claims that appellant held for her use. The declaration consisted of the common counts, but the claim was based upon the count for money had and received for the use of plaintiff.

It appears from the record in this case that James W. Brown was county clerk of Jackson county, and that during the years 1912 and 1913 issued warrants. payable to himself as clerk, for fees, which purported to be authorized by the board of supervisors, to a total amount of $11,110, and sold the same to the plaintiff, the City National Bank of Murphysboro, the First National Bank of Murphysboro and Sarah Landau; that he sold to appellee fourteen of these orders or warrants ranging in sums from $100 up to $1,000, and aggregating the total of $4,845. It further appears from the evidence that from time to time Brown in his settlements with the county charged himself with a portion of these orders, amounting to a total of $5,085. It appears that at stated times during this period he had settlements with the county charging himself with the income of the office and crediting the expenditures paid, and in these settlements he accounted for these illegal warrants to the amount above specified, and then paid the balance that was found to be due the county upon said settlement to the treasurer without making any suggestions as to the source from which the money came or directions what to do with the money. It appears further that these warrants were not charged up in these different settlements in any regular manner, or even at the next settlement after the warrant was issued; some óf them were not accounted for for many months after having been issued. It appears that of this $11,110, warrants issued, that the county paid three of said warrants amounting in the aggregate to $2,325, and that Brown had paid into the county treasury, in the manner above stated, $2,760 more than he was owing to the county. This arose from the fact that before the remaining orders were presented to the treasurer it had been discovered that Brown was issuing fraudulent orders and the treasurer refused payment, and resulted, according to the computation of counsel, in a balance of $2,760 that had been overpaid by Brown to the county (not taking into consideration the spurious warrants that had been issued and not paid by the county).

The suit was brought for the purpose of recovering appellee’s proportion of this $2,760, and at the conclusion of the evidence it was stipulated between appellee, the City National Bank of Murphysboro, the First National Bank of Murphysboro and Sarah Landau (the last three named persons not being parties to this suit), that the said $2,760, should be apportioned among them respectively in proportion to the amount said purported county orders held by each of them bears to the respective amounts paid into the county treasury by said Brown, except that it was agreed that Sarah Landau was not entitled to any part of such fund. This agreement was objected to by appellant and was not in any manner consented to by it and, as we view it, is in no way binding upon the appellant.

It is further stipulated that all of said warrants were issued by the clerk without authority of law and were illegal and void.

The only question that we feel called upon to decide in this case is as to whether or not under these circumstances an action would lie by appellee to recover from appellant, for money had and received, the proportion above stipulated or any portion oh such fund. It is contended by counsel for appellee that this money equitably belongs to appellee and that she has the right to recover the same from the county under the common counts, and cites many authorities in support of this contention which hold that where money is held by one person that belongs to another that this action may be sustained, and that where duty requires the payment that the action may be sustained. With this principle of law we concur, but the question arises is this case within that principle and within that class of cases that have been recognized by our courts as giving a right of action where no privity exists? We are cited to the case of Board of Highway Comr’s. v. City of Bloomington, 253 Ill. 164, where the city had collected a road and bridge tax that ought to have been paid to the highway commissioners, and there the court says the liability exists from the implication of law that arises from the facts and circumstances, independent of agreement and presumed intention, and the opinion contains many other cases illustrative of the doctrine announced; but as we view it, and as we view the cases referred to, there was at all times something in the circumstances of the case that gave identity to the fund, that is, that it was a tax fund, or in one case it was a fund that had been paid by mistake, and others where the fund had been illegally paid to the party being sued, and there was something to identify or make certain the amount due the party that was claiming the fund. Is that true in this case? Here the money was paid by appellee to Brown from time to time and was never paid by him directly into the treasury of the county but was used by him in the settlement of his accounts and then he paid the balance into the county treasury. This balance may have been made up by this fund in part, or by other moneys secured from other persons and placed in the treasury as a general fund, or amounts due the county, and nothing to designate that it was placed in the treasury for the purpose of redeeming these warrants, as claimed by counsel for appellee. Brown in his testimony says, on cross-examination: “I did not negotiate one of these instruments to Mrs. Bothman and then carry the money direct to the county treasurer to redeem that particular order; did not do any of them that way; the money I paid the county to make up what I owed the county by my reports came from various warrants. I did not pay any money into the treasury to pay any specific order. A number of these orders were taken into each semiannual report. The orders were not put on this record at the time they were issued; usually these warrants were entered at the end of the term. I negotiated these purported orders and then at some later date put them on my record, as we took them ip at the end of the term. When I made up my report to the county board I did not include all of the orders that were drawn up to that date.” It may be true as claimed by counsel that here is an amount of $2,760 due to Brown, but there is nothing in it or in the evidence to show that any particular part of it belongs to appellee or any particular part to any other person; while Brown does not claim it, nevertheless it remains there as a credit to Brown and must, in our judgment, be reached in some manner through Brown. It is a fund arising originally from a contribution to Brown from different sources. The appellant is not shown by the evidence to have been the agent of the appellee in the receipt of the money or to have fraudulently acquired the money, and this being so the appellant is responsible only to its principals for its disposition, and we do not think that it can be said that this money actually belonged to appellee, and before the defendant can be held liable to the plaintiffs for money had and received to their use, it should appear there was money in his hands actually belonging to him. Maxwell v. Longenecker, 82 Ill. 308. This was a case where a fund had been placed in the defendant’s hands to be paid out for work and materials on Maxwell’s building, without any specific directions as to whom or how much should be paid to the respective parties being given, and the Supreme Court held that persons interested in this fund, or that had performed work upon this building and entitled to their pay, could not bring an action to recover for money had and received, and we think the case is decisive of the one at bar.

It may be that in a court of equity these fraudulent orders might be considered in equity as an assignment of any benefit that Brown had received through the use of the money obtained upon such warrants, and that in an equitable action to which all persons presently or prospectively interested were made parties the fund might be disposed of according to their equities, but we do not believe that appellee and the other persons who may or may not have contributed to the creation of this particular fund could say that we apportion this fund among ourselves according to the amount of money that we have paid Brown and take judgment against the county for these amounts without its consent. We believe the court erred in rendering judgment against the appellant, and the judgment of the lower court is reversed and the cause remanded.

Reversed and remcmded.


text:
    Francis and Mamie Kirsch, Appellants, v. Prosper J. Soucy, Appellee.
    (Not to be reported in full.)
    Appeal from, the City Court of East St. Louis; the Hon. Robert H. Flaknigan, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed July 21, 1915.
    Statement of the Case.
    Action by Prosper J. Soucy against Francis and Mamie Kirsch for rent. The appellee recovered judgment for one hundred and two dollars, the jury allowed the defendant thirty-six dollars by way of damages for nonrepair of the demised premises. The defendant appeals.
    The evidence showed that prior to September, 1906, a house had been in possession of one Abbott; that his collectors of rent were Swarthouse and Whitney; that during the latter part of September the property passed into the control of the plaintiff under a trust deed and that it so continued until the present time; that the defendants occupied the property at the time it came into possession of Soucy, and they had paid rent to Abbott and to his collectors at the rate of thirty dollars per month. They continued to occupy the property without any new arrangement with Soucy until January 4, 1907, when they moved out and surrendered the key to the latter.
    Abstract of the Decision.
    1. Compromise and settlement, § 16

      —when finding of absence of compromise sustained by evidence. A finding that a claim for rent and a tenant’s damages for nonrepair of demised premises had not been compromised, held proper under conflicting evidence.
    2. Landlord and tenant, § 375a

      —instruction as to duty to make repairs. An instruction in an action to recover rent by one holding property under a trust deed, that the plaintiff could recover unless he had agreed to make repairs, held not prejudicial to the defendant, where the jury was further instructed that if the latter rented property from the grantor in such deed, under an agreement by the latter to keep the property in repair, that such agreement was binding on the plaintiff.

      It further appeared that a sewer was broken and that sewage rose into the yard and ran back into the cellar of the house; that Kirsch complained to Whitney (Abbott’s collector) and Whitney said: “I only collect the rent for myself until the money that Mr. Abbott owes me is paid.” That Kirsch went to Soucy, thinking he was the owner, and told him of the condition, also of other conditions of the house, showing it to be in a bad state of repair, and Soucy told him he had nothing to do with the house except to collect rent, that he did not know who the owner was. Kirsch then made the necessary repairs at his own expense.
    It was contended by the appellants that there was an agreement upon the part of the landlord Abbott to keep the house in repair; and also that when they went to surrender the key that Soucy agreed, on account of the damage done, to release the rent then owing by appellants. This, however, was denied by Mr. Soucy.
    Edgar P. Holly, for appellants.
    W. L. Coley, for appellee.

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

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

3. Landlord and tenant, § 325a —instruction as compromise of claim for rent. An instruction in an action for rent, as to a compromise of the tenant’s claim for dapage for nonrepair, held not prejudicial where the jury found against such claim.

4. Trial, § 45 —calling attention of jury to inconsistency of general verdict and special findings. A statement made by the trial judge to the jury that: “There seems to be a variance between the special finding and general verdict; they are not consistent. Are you satisfied with this verdict? If not, you may retire with the officer to your room to further consider the same,” held not to call attention to any particular finding.


text:
    Frank Handfelder, Appellee, v. East Side Levee & Sanitary District, Appellant.
    (Not to The reported in full.)
    Appeal frm the Circuit Court of Madison county; the Hon. Lotus Bebnreuter, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed July 21, 1915.
    Statement of the Case.
    Action in case by Frank Handfelder against the East Side Levee and Sanitary District to recover damages alleged to have been occasioned by a levee which obstructed the flow of water on plaintiff’s premises, causing damage by overflow. From a judgment for plaintiff, defendant appeals.
    The East Side Levee & Sanitary District was organized under an act' of the General Assembly, entitled “An Act to create sanitary districts in certain localities, and to drain and protect the same from overflow for sanitary purposes,” approved May 17, 1907, in force July 1, 1907 (J. & A. vol. 3, ch. 42, 4325-4352, inc.). As a part of the scheme for drainage and sanitary improvement adopted by defendant, it caused to be constructed, after the 1st of March, 1910, across a part of Choteau township in Madison county, what is known as the Cahokia Creek Diversion Channel, \ • • ' an artificial waterway, beginning at Cahokia Creek on the east and running in a westerly direction to the Mississippi River, a distance of about four miles. This diversion channel had levees on each side thereof, the levee on the north in the vicinity of the premises of plaintiff being from ten to fifteen feet in height. The purpose of this channel was to divert the waters of Cahokia Creek (a natural water course) or a part thereof, and carry them into the river by means of this artificial channel.
    The diversion channel was located entirely outside the boundaries of the district, and the premises of plaintiff did not constitute any part thereof.
    Immediately south of the premises occupied by plaintiff as tenant was a public highway, and immediately south of the highway was the north levee of the diversion channel, the levee being about one hundred feet froin the dwelling house occupied by plaintiff and his family.
    The public highway lying between plaintiff’s premises and the north levee was slightly above the level of the land lying to the north, but was not of sufficient height to constitute an appreciable barrier to the flow of surface water from said premises.
    Through the eastern portion of the farm were located the tracks of four railroads. These railroads entered the farm very near its southeast corner and bore slightly to the west as they proceeded north. West of the farm, and something over three thousand feet west of the railroads above mentioned, were the tracks of another railroad. The west line of the farm was very near the center of the tract of land bounded by the railroads aforesaid, to the east and west. All of the lines of railroads above mentioned, north of the levee in question, were located upon grades or embankments, which connected with the north levee constructed by defendant, and at the point of intersection were approximately the same height of the levee.
    As a result of these structures above mentioned, the lands occupied by plaintiff were located in a pocket or basin, bounded on the east and west by the railroad grades or embankments, and on the south by defendant’s levee.
    The lands in question and other lands in the immediate vicinity, comprising several hundred acres, were very nearly level, having a slight fall to the south or southeast, and naturally drained in that direction, until such natural drainage was obstructed by defendant’s levee.
    To take care of the water coming from this territory lying north of defendant’s levee, and between the grades of the railroads above mentioned, defendant placed only one twenty-four inch pipe through its north levee located a short distance west of the railroad grade on the east side of the farm.
    The pipe in question, at its intake end was equipped with a valve operated by means of a screw, and at the outlet had a flap valve designed to operate automatically by water pressure. The evidence tended to show that no arrangements had been made by which the intake end of this pipe could or would be kept free from accumulations of drift so that the water could flow through the same without interruption.
    The evidence further tended to show that on the night of July 13, 1912, being Saturday night, and again on the following Tuesday night, there occurred very heavy rains on and in the vicinity of the premises occupied by plaintiff, and the evidence tended to show that, on Sunday morning following the first rain, a large portion of the farm was under water.; that the water entirely surrounded the house, barn and other buildings, filled the well and cellar, and extended over the public highway from the railroad grade on the east to the railroad grade on the west, and that over this road the water was from a foot to eighteen inches deep, and was of such extent and depth that it was backed up to and overflowed a part of the farm adjoining plaintiff’s premises on the north. The evidence tended to show that this water was held upon these premises by defendant’s levee which prevented its escape to the south. ,
    Witnesses who had lived in the neighborhood of the premises in question for upwards of thirty years testified that they had never, upon any former occasion, seen this highway under water. The evidence also tended to show that all along defendant’s levee between the railroad grades, the water was backed up to a depth of two feet or more, and at the intake pipe through the levee, on the morning following this rain, the water was over five feet deep.
    As a result of the flooding of plaintiff’s premises, the evidence tended to show that one hundred chickens were drowned; that several acres of potatoes were destroyed; that wheat in the shock was damaged; the pasture lands and the growing corn materially injured; the well and cellar flooded and the premises were rendered unsanitary.
    Thomas E. Gillespie and Williamson, Burroughs & Ryder, for appellant.
    C. H. Burton, for appellee.

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

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

Abstract of the Decision.

1. Drainage, § 112 —duty as to persons outside of district. A levee and sanitary district which is organized for the express purpose of “draining property, protecting it from overflow, and for sanitary purposes” owes the duty to one outside its district to construct its levees in such a manner as not to obstruct the natural flow of surface water from such premises.

2. Drainage, § 112*—liability for flooding lands outside of district. A levee and sanitary district which, in the construction of a levee, exercises reasonable care to furnish an outlet for surface waters from land adjoining the district equal to that existing before the construction of the levee, is not liable to a tenant of such adjoining land for damages due to overflow.

3. Drainage, § 112*—when overflow not due to act of God. In an action against a levee and sanitary district by a tenant of adjoining premises outside the district for damages to crops and other property due to overflow, evidence held to sustain a finding that the damage was not due to an “act oí God,” where the only outlet was a pipe which was of insufficient dimensions which became clogged with refuse, although the rainfall was unusually heavy.

4. Drainage, § 112*—right of tenant outside of district to recover for flooding of land. A tenant of lands outside a sanitary and levee district may sue and recover for the loss to crops and other property occurring from the negligence or wrongful act of a levee and sanitary district in the construction of a levee resulting in the flooding of tenant’s land after an extraordinary flood, although the crops were planted after the levee was constructed.

5. .Action, § 61*—what constitutes a continuing nuisance. The failure of a levee and sanitary district to provide a proper and sufficient outlet for the escape of surface water -from adjoining land outside the district, so that a tenant of such adjoining land may have as sufficient an outlet for "the drainage of surface waters due to extraordinary floods as existed before the erection of the levee, constitutes a continuing nuisance for which successive suits may be maintained.

6. Drainage, § 112*—when overflow from adjoining premises not adequately provided for. In an action against a levee and sanitary district to recover damages due to overflow, evidence held sufficient to sustain a finding that a twenty-four inch pipe through the levee did not furnish an outlet for water coming from adjoining premises outside the district, equal to that existing prior to the construction of the levee.

7. Drainage, § 112 —what evidence admissible in action for overflow. Evidence that there were stalks in the intake end of an outlet pipe of a levee, constructed for the passage of surface water from land adjoining a levee and sanitary district, is admissible in an action by a tenant of such premises for damage to his crops and other property alleged to be due to “negligent construction” of such levee.

8. Drainage, § 112 —evidence admissible in action for overflow. Evidence in an action by a tenant of premises outside a levee and sanitary district against such district for damages to his crops and other property alleged to be due to the failure to provide a proper outlet for surface water, that in stages of high water the river would rise higher than the intake end of the pipe through the levee, is admissible.

9. Evidence, § 233 —when weather burean records inadmissible. The records of the weather bureau at St. Louis that the greatest rainfall occurring in over forty years occurred during a particular storm are inadmissible to prove conditions existing in Madison county in an action by a tenant occupying premises outside a levee" and sanitary district against such district for damages to his crops and other property, alleged to be due to the accumulation of water as a result of the improper construction of outlets in the levee for the passage of surface water.

10. Appeal and error, § 1566 —when erroneous instruction harmless The giving of an erroneou.s instruction relating to the measure of damages does not constitute reversible error when it is not assigned as error that the damages awarded are excessive.


text:
    R. W. Ropiequet and R. W. Ropiequet, Trustee, Appellants, v. Christ. Knebelkamp, Appellee.
    (Not to he reported in full.)
    Appeal from the Circuit Court of St. Clair county; the Hon. George A. Ceow, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed July 21, 1915.
    Statement of the Case.
    Bill of review by R. W. Ropiequet and R. W. Ropiequet, trustee, against Christ. Knebelkamp. From a judgment for defendant dismissing the bill of review after demurrer thereto, plaintiff appeals.
    The bill set out a petition by Christ. Knebelkamp under the name of Christ. Knebelkamp & Company and against Schwam Aluminum Company and National Metal Company for a mechanic’s lien on certain premises, and alleged that the petitioner therein erected certain buildings upon said premises and furnished material therefor for a stipulated price, and for extra materials, as shown in said petition. To this petition a demurrer was filed. The petitioner filed an amended bill, which was substantially the same as the former bill, and to this a demurrer was also filed. The demurrer contained a clause stating that R. W. Ropiequet, trustee, had an incumbrance, as appeared of record, upon the said lot. To this petition a demurrer was also filed, and on the 16th of March, 1908, the petitioner filed a second amended petition, substantially as the first, except that it made R. W. Ropiequet a party defendant and asked for a process against him. To this petition a demurrer was filed. While said case was pending, before the last demurrer had been disposed of, the case was by agreement between Christ. Knebelkamp of one part and the National Metal Company and Schwam Aluminum Company of the other part removed from the docket under an agreement upon the part of the National Metal Company and Schwam Aluminum Company to pay said Knehelkamp $1,646.25 within one year, and that the afore-mentioned suit was to be removed from the docket, and if the said parties failed to pay the amount stipulated within the year then the cause was to be redocketed and the said parties to the agreement were to confess a decree for a lien in said suit. The said parties having failed to make payment as provided by said agreement, the petitioner gave notice for a reinstatement of said cause and an agreement was had to reinstate the same upon the docket.
    Richard Ropiequet, trustee, entered his appearance in said cause in the words as follows: “And now comes Richard Ropiequet, trustee, one of the defendants in the above entitled cause, and waives service of process of summons and enters his appearance therein.” A rule was entered upon the defendants to answer the amended bill, and on September 22, 1910, no answer having been.filed, the amended bill was ordered taken as confessed and the cause referred to the master in chancery to take testimony and report proofs and findings of law, and after a recommendation for a decree the master made a report with his conclusions showing the amount of $1,713.57 due the petitioner and recommended a decree of foreclosure, and that defendants Schwam Aluminum Company and National Metal Company pay the said amount within thirty days. A decree was rendered in said cause finding that the defendants had been duly served with process, or entered their appearance at a former trial of this court, finding that the agreement aforesaid made between Christ. Knehelkamp and the National Metal Company and the Schwam Aluminum Company had been duly entered and that the undisposed of demurrer was waived and that the petitioner was entitled to a lien on said premises for said amount and costs; that all defendants and all persons claiming through or under them since the commencement of this suit be forever barred and foreclosed from all equity of redemption and claim in and to said premises or any part thereof, if the same are not redeemed according to law by the defendants within twelve months next after such sale. A report of sale was made by the master showing the said premises to have been purchased by the said Christ. Knebelkamp for the amount of the debt and costs. . Afterwards a motion was entered by B. W. Eopiequet to set aside the default and decree rendered in the above entitled cause because no process was ever issued or. served upon him; that he as trustee held a mortgage upon said real estate to secure a note for $6,000; that he as trustee entered his appearance at the request of L. D, Turner, attorney for petitioner, in the second amended bill; that no notice was given to him of the. entering of the rule to answer as required by Eule 5 pi said court; that said decree was taken while the demurrer above set forth was undisposed of; that the master in chancery heard the testimony without serving notice upon him personally or as trustee; that no opportunity was ever given to file exceptions to the master’s report; that the decree erroneously found said real estate was subject to a lien and erroneously found that it had jurisdiction of the parties; that the defendant in his own person and as trustee had a meritorious defense and that said motion was supported by affidavits and overruled by said court.
    The bill for review then repeated substantially the same matters set forth in said motion, and averred that such errors and imperfections appeared in the bocly of said proceedings and decree as to cause the same to be set aside, etc.
    R. W. Ropiequet and P. C. Otwell, for appellants.
    Turner & Holder, for appellee.

      Abstract of the Decision.
    1. Equity, § 557

      —when hill of review may he filed without leave. A bill of review for errors apparent on the face of the record, and not setting up additional evidence, may be filed without leave of court.
    2. Equity, § 577

      —when hill of review defective for want of parties. A bill of review is fatally and substantially defective where all the parties to the original decree, and whose interests are affected by the original decree, are not parties to the bill.
    3. Appeal and error, § 31

      —when Appellate Court has jurisdiction over a trustee. The Appellate Court has jurisdiction of a trustee in a suit by bill of review where such trustee claimed an incumbrance on property involved in the original suit which was instituted for a mechanic’s lien, and made his appearance in such action, and a decree was taken as confessed against him, after a rule to answer and failure to do so, even though he did not follow the proceedings any further.
    4. Equity, § 555

      —when lack of personal service in original suit immaterial on hill of review. It is immaterial for purposes of a bill of review that a person was not personally served in the original suit for a mechanic’s lien where he had no personal interest in the controversy, but an interest simply as trustee.
    5. Equity, § 156

      —when failure to answer not excused. The failure of a trustee, who claims an incumbrance upon property involved in a suit to foreclose a mechanic’s lien, to answer is not excusable because of the fact that an undisposed of demurrer was on file at the time a decree of confession was taken against him, where such demurrer had been interposed by other parties.
    6. Mechanics’ liens, § 181

      —when demurrer waived hy agreement. A demurrer to a bill in a suit to foreclose a mechanic’s lien is waived by agreement where the case is removed from the docket under an agreement between the plaintiff and the owners, whereby the owners were to pay a certain sum within one year and the case was to be removed from the docket, but that if payment was not made within such time the case should be redocketed, and a decree for a lien confessed.
    7. " Mechanics’ liens, § 173

      —when holder of incumbrance not a necessary party. It is not error for the court in a suit to foreclose a mechanic’s lien to proceed without making the holder of an incumbrance against the land a party, where the only time that the court’s attention was called to the fact that such holder was a proper party was when a demurrer was filed hy the defendant owners setting up the fact that such holder had an incumbrance, and, such holder, upon entering his appearance in the action failed to claim the rights to a lien as referred to in the demurrer but suffered a judgment by default to go against him.

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.


text:
    Matilda M. Yackel et al., Appellees, v. Stanard-Tilton Milling Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Madison county; the Hon. M. R. Sullivan, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed July 21, 1915.
    Statement of the Case.
    Action by George Yackel, Helen Yackel, Elmer Yackel, Constance Yackel, Adolphus Yackel, Walter Yackel and Ralph Yackel, minors, by their next friend, Matilda M. Yackel, against the Stanard-Tilton Milling Company, to recover damages for injuries sustained by reason of defendant’s building settling, tipping over and injuring plaintiff’s building because of the negligent construction of an elevator. From a judgment for plaintiffs, defendant appeals.
    It was held, in affirming the judgment, that the case was controlled by the decision in Starr v. Stanard-Tilton Milling Co., 183 Ill. App. 454, which was a suit against the same defendant, involving substantially the same questions of law and fact.
    Levi Davis, for appellant.
    James A. Lynn and E. Breese Glass, for appellees.
   Mr. Presiding Justice McBride

delivered the opinion of the court.