text:
    William Dowland and Donna Dowland, Administrators, Appellees, v. Joseph D. Staley and William T. Staley, Executors, Appellants.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Sangamon county; the Hon. James M. Creighton, Judge, presiding. Heard in this court at the October term, 1914. Certiorari denied by Supreme Court (making opinion final).
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed October 13, 1915.
    Rehearing denied December 11, 1915.
    Statement of the Case.
    Bill by William Dowland and Donna Dowland, administrators with the will annexed of the estate of Minerva Jane Owens, complainants, against Joseph D. Staley and William T. Staley, executors of the last will and testament of Daniel Staley, deceased, defendants for an accounting. From a judgment for complainants, defendants appeal and complainants assign cross errors.

      Abstract of the Decision.
    1. Trusts—what is a trust. A trust, in its simplest sense, is a confidence reposed in one person, called a trustee, for the benefit of another, called the cestui que trust, with respect to property held by the former for the benefit of the latter.
    2. Trusts, § 1

      —what is an express trust. An express or direct trust is one created by the acts of the parties.
    3. Trusts, § 29*—what is an implied trust. An implied trust is one raised by operation of law.
    4. Trusts, § 19*—how created in real property. Trusts in real property must be created in writing.
    5. Trusts, § 12*—how express trusts in personalty created. Express trust in personal property may be created by parol.
    6. Trusts, § 3*—when evidence sufficient to show creation of express trust. On a bill for an accounting between the administrators with the will annexed of the estate of a. deceased cestui que trust against the executors of the will of the trustee, evidence held sufficient to show the creation of an express trust by the acts of the parties in relation to funds derived from the sale of real estate of the cestui que trust that was turned over to the trustee, and the interest actually received by him thereon.
    7. Equity, § 10*—when exclusive jurisdiction. Equity has exclusive jurisdiction to determine the rights of parties to an accounting in matters relating to express trusts.
    8. Courts, § 83*—when Circuit Court has jurisdiction. The Circuit Court has jurisdiction of an equitable action of accounting to determine the rights of parties in matters relating to express trusts.
    9. Limitation of actions, § 20*—when does not run to tar recovery of trust fund. The statute of limitations does not run to bar the recovery of a trust fund by an action of accounting until the disavowal of the trust by the trustee.
    10. Witnesses, § 50*—when competency of witnesses to testify measured. The competency of witnesses to testify must be measured not with reference to the time the testimony is given, but with reference to the time of the trial when it is considered.

      Conkling & Irwin and Thomas L. Jarrett, for appellants.
    J. B. Vaughn, Victor Hemphill and E. E. Bone, for appellees.

      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.

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

   Mr. Justice Graves

delivered the opinion of the court.

11. Witnesses, § 145 —when party incompetent to testify as to transactions with deceased person. Where the parties complainant to an action for an accounting, which was referred to a master during the life of the defendant, testified as to transactions with defendant, but, upon his dying before the hearing was completed and report made by the master, the personal representatives of the latter were substituted, held that such testimony was rendered incompetent and should have been excluded and that it was immaterial that the deceased testified in contradiction to parts of such testimony.

12. Account, § 35*—what degree of proof required. The complainants to a bill for an accounting must make out their case by a preponderance of competent evidence.

13. Appeal and error, § 1301*—when presumed trial court did not consider incompetent evidence. It must be presumed on appeal that a trial court, in an equitable action, did not consider incompetent evidence in making its findings.

14. Appeal and error, § 452*—when objection may not be raised on appeal. An objection that a letter introduced in evidence was not identified may not he raised for the first time on appeal.

15. Witnesses—when disqualified as party in interest to testify against representatives of estate of deceased person. A trustee, defendant to an action of accounting brought by the administrators of the estate of a cestui que trust, is a party in interest, and is disqualified to testify as to transactions with the deceased.

16. Evidence, § 461*—when insufficient to overcome statements against interest. The testimony of a party in interest given years after a transaction is closed is insufficient to overcome evidence consisting of a letter written at the time of the transaction and which contained statements against his interest.

17. Trusts, § 270*—when evidence sufficient to sustain finding of court charging trustee with proceeds of sale of land. On a bill for an accounting by the administrators with the will annexed of the estate of a cestui que trust against the executors of the will of the trustee for an accounting of the trust estate, evidence held sufficient to sustain a finding of the court charging defendants with the entire amount of money received by the trustee from the sale of lands of the cestui que trust.

18. Appeal and error, § 1399*—when finding of master not disturbed as unsupported by evidence. Where the finding of a chancellor on a question of fact follows the finding of the master, the Appellate Court will not reverse the decree on the ground that it is not supported by the evidence unless it is clearly contrary to the manifest weight of the evidence.

19. Trusts, § 270 —when evidence sufficient to sustain finding of court charging defendants with interest upon funds of trust estate. On a bill for an accounting by the administrators with the will annexed of the estate of a cestui que trust against the executors of the will of the trustee for an accounting of the trust estate, evidence held sufficient to sustain a finding of the court charging defendants with interest upon funds of the cestui que trust invested by the trustee.

20. Evidence, § 164*—when paper admissible as statement against interest. On a bill for an accounting by the administrators with the will annexed of the estate of a cestui que trust against the executors of the will of the trustee for an accounting, of the trust estate, held that a statement of account made by the trustee- to the cestui que trust which did not include two items which the trustee claimed to have paid, and which covered the period during which they were claimed to have been paid, was admissible as an admission against interest and as tending to show that the items had not been paid.

21. Trusts, § 270*—when evidence sufficient to show that claims for credit and receipts for payment spurious. On a bill by the administrators with the will annexed of the estate of a cestui que trust against the executors of the will of the trustee for an accounting of the trust estate, evidence held sufficient to sustain a finding of the court that two claims for which the defendants claimed credit and receipts given therefor were spurious.

22. Trusts, § 230*—when trustee not liable for interest on funds. A trustee cannot be required to account for any interest on a trust fund except such as he receives therefrom, even when he mingles the trust fund with his own, provided he always has at his command funds with which to respond to all legal demands.

23. Payment, § 29*—when evidence insufficient to show. On a bill by the administrator with the will annexed of the estate of a cestui que trust against the executors of the will of the trustee for an accounting of the trust estate, evidence consisting of a draft on the bank which the trustee owned, signed hy the cashier and indorsed hy the cestui que trust, held insufficient to establish a payment on a claim due the cestui que trust, where there was no evidence tending to connect the trustee or the funds in, his possession with the draft, or to show from what source it was received.

24. Evidence, § 165*—when letter incompetent as self-serving. On a bill by the administrators with the will annexed of the estate of a cestui que trust against the executors of the will of the trustee for an accounting of the trust estate, held that a letter written by the trustee to a son of the cestui que trust stating that he inclosed a draft for a certain amount as the mother directed and that he and another person had settled for the land, held incompetent as self-serving.

25. Trusts, § 270*—when evidence sufficient to sustain findings. On a bill for an accounting of a trust estate, held sufficient to sustain findings allowing certain claims of credit and disallowing another.

26. Witnesses, § 95*—when party disqualified to testify against representative of deceased person. A trustee who is defendant to an action by the representatives of the estate of the deceased cestui que trust for an accounting is incompetent to testify in his own behalf against such representatives except in so far as the exceptions in Hurd’s Rev. St., ch. 51, sec. 2 (J. & A. ¶ 5519) apply.

27. Appeal and error, § 1467*—when admission of evidence harmless error. The erroneous admission of the evidence of a disqualified witness in a trial before a court is harmless error when there was nothing in it that was considered by the trial court to the detriment of the adverse party.


source: Caselaw Access Project

author: Mr. Justice Graves

license: Public Domain

text:
    Adolphine F. Schott, Appellant, v. W. Jeff Horney et al., Appellees.
    1. Bills and notes, § 293

      —when duty of maker to see that payments applied on note. The maker of a note making a payment on it before it is due must see that it is indorsed on the note as against an innocent purchaser before maturity.
    2. Bills and notes, § 255*—what are rights of purchaser before maturity without notice. A purchaser of negotiable paper before maturity without notice of defenses takes it free from all defenses.
    3. Mortgages, § 245*—when making payment before due not defense. Under J. & A. ¶ 7589, providing that mortgages shall be exempt from defenses to the same extent as negotiable paper described therein, it is not a defense to an action to foreclose a mortgage that the maker made payment, where such payment was made before due to the assignor of the mortgage and note and was not applied on the note by him.
    4. Appeal and error, § 1802*—when case reversed and remanded to pass on constitutionality of act involved. On a bill to foreclose a mortgage where the question of the invalidity of the act providing that mortgages shall be exempt from defenses to the same extent as negotiable instruments described therein, Session Laws 1901, p. 248 (J. & A. ¶ 7589), on the ground that the act was not properly passed, was not raised in the trial court, held, that a judgment for the defendants should be reversed and the cause remanded so as to give opportunity to litigate such question.
    Appeal from the Circuit Court of Hancock county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed October 13, 1915.
    Rehearing denied and opinion modified and refiled December 11, 1915.
    Orville F. Berry, Samuel Naylor and Louis Berger, for appellant.
    O’Harra, O’Harra, Wood & Walker and Charles Crosslakd, for appellees W. Jeff Homey and Anna Horney.

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

   Mr. Justice Graves

delivered the opinion of the court.

This is a bill in chancery filed by the appellant against the appellees, W. Jeff Horney, Anna Horney and James F. Gibson, to foreclose a mortgage given by the appellees Jeff Horney and Anna Homey, his wife, to appellee Gibson on March 9, 1907, to secure the payment of a note of $8,300 payable five years after the date thereof, with interest at five per cent, per annum, to the order of the appellee Gibson. The note is a coupon note, and contains a provision that at any interest paying period any multiple of $100 may be paid on the principal. The note and mortgage were assigned in blank and delivered to one John B. Schott, the husband of appellant. Gibson supposed John B. Schott was the purchaser, but the purchaser was John B. Schott’s wife (the appellant). John B. Schott acted for his wife and was her agent to do her business.

Appellees Horney never had any notice but that Gibson was the actual owner of the note and mortgage. The first three coupons of $415 were presented to Gibson for collection and the Horneys paid the first two and when the third came due paid the interest and $2,000 on the principal to Gibson and took up the interest note, but made no inquiry about the principal note and did not see that the payment of the $2,000 on the principal was indorsed on the note. When the fourth coupon note became due, it was forwarded to a bank for collection and then appellees Horney discovered that Gibson did not own the note when the $2,000 payment was made and that it was not credited on the note. The suit to foreclose was brought and $6,300, principal and interest on the note and mortgage, was paid and received without prejudice to the suit pending for the $2,000, and interest on it. A decree was rendered for the defendants.

The principal point in controversy in this case arises out of said payment of $2,000, appellees Horney insisting that the payment of the same to said Gibson was a legal and valid payment on the principal of said loan; that said Gibson was the agent of John B. Schott, the husband of appellant; that the payment to appellee Gibson was binding upon appellant whether she received it or not; that therefore appellees Homey were entitled to the credit for the same upon the principal of said loan; and that having later paid the balance of $6,300, they had discharged the entire amount due on said note and mortgage and were entitled to have the same canceled and delivered up to them and released of record.

Appellant contends that the appellee Gibson was not her agent nor the agent of John B. Schott; that said payment by the appellees Horney to appellee Gibson was not a legal or valid payment upon the payment of said loan, and is not binding upon her; that she never received the same; and that there is a balance due on said loan of $2,000 principal and interest and the costs and expenses of the foreclosure proceeding; that the said note and mortgage are negotiable instruments under the laws of the State of Illinois; that they were assigned to and in the possession of appellant from the latter part of March or the first of April, 1907; and that appellees Horney could not lawfully pay the same or any part thereof to said Gibson without knowing that he was the owner thereof, or in the actual possession thereof, or at the time of payment the duly authorized agent of the owner thereof.

In 1901 an act was passed providing that mortgages shall be exempt from defenses to the same extent as negotiable paper described therein (Session Laws,page 248, J. & A. ¶ 7589), except for this statute any defense that could be urged against Gibson could be urged against appellant. Schultz v. Sroelowitz, 191 Ill. 249; Bouton v. Cameron, 205 Ill. 50; Bartholf v. Bensley, 234 Ill. 336. If suit was brought on the note at law, the defendants have no defense. The maker of a note making payment on it before it is due must see that it is indorsed on the note as against an innocent purchaser before maturity. A purchaser of negotiable paper before maturity without notice of defense takes it free from all defenses. This statute referred to places the mortgage on the same ground as the note so far as defenses are concerned.

It is contended by appellees that the Statute of 1901 was never passed by the House of Eepresentatives. A memorandum in the Jones and Addington Edition [page 4342] says the statute was not properly passed. It is also contended by appellees that the Supreme Court in 1908 in the case of Bartholf v. Bensley, 234 Ill. 336, in passing upon the negotiability of a mortgage ignores or overrides the Statute of 1901. The case makes no reference to the statute and the attention of the Supreme Court does not appear to have been called to it although the note and mortgage foreclosed in that case were made after the passage of the act.

An examination of the record shows that appellant was the purchaser of the note and mortgage for value before maturity and that the loan was not made for her through Gibson as her agent, as is contended by appellees.

The question of the validity of the Act of 1901 was not raised in the Circuit Court and we think appellees should have an opportunity to litigate it. The judgment of the Circuit Court is therefore reversed and the cause is remanded to that court.

Reversed and remanded.


text:
    Thornton Akers, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Coles county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed October 13, 1915.
    Statement of the Case.
    Action by Thornton Akers, plaintiff, against Cleveland, Cincinnati, Chicago & St. Louis Railway Company, defendant, to recover damages for breach of a contract to furnish within a certain time a car of specified dimensions in which to load an interstate shipment of hogs. From a judgment for plaintiff, defendant appeals.
    George B. Gillespie, for appellant; L. J. Hackney and F. L. Littleton, of counsel.

      Abstract of the Decision.
    1. Appeal and error, § 1411

      —when verdict not set aside as unsupported by evidence. A verdict on conflicting evidence will not be set aside on appeal as unsupported by the evidence unless manifestly contrary to the weight of the evidence.
    2. Instructions, § 115*—when requested instruction properly refused as inapplicable to issues. In an action by a shipper against a carrier to recover damages for breach of a contract to furnish within a certain time a car of specified dimensions in which to load an interstate shipment of hogs, a requested instruction framed on the theory that the issue being tried was whether defendant exercised due diligence to furnish the car ordered within a reasonable time, held properly refused as inapplicable to the issues.
    3. New trial—when party estopped to complain of admission of incompetent evidence. A party who is participating in a trial, and who calmly sits by and hears incompetent evidence introduced without interposing any objection thereto, cannot on a motion for new trial be heard to complain that it was admitted.
    4. Appeal and error, § 450*—when objection to admissibility of evidence not considered on appeal. A party who participated in a trial and heard incompetent evidence without objection is estopped to complain on appeal of the admission of such evidence.
    Edward C. Craig, Donald B. Craig and James W. Craig, Jr., for appellee.

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

   Mr. Justice Graves

delivered the opinion of the court.


text:
    Michael Costello and Rich Costello, trading as Costello Brothers, Defendants in Error, v. F. A. Delano et al., Receivers, Plaintiffs in Error.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Contracts, § 16

      —how construction contract construed. A railroad construction contract providing that whenever the term “engineer” was used therein it was intended to mean the chief engineer of the receivers of the railroad, or his duly authorized agents, and that monthly estimates should be made by the “engineer,” and that upon completion and acceptance of the work a final estimate should be issued for the same, construed as meaning that the final estimate also might be made by the chief engineer or his authorized agent or assistant.

      Error to the Circuit Court of Moultrie county; the Hon. William G. Cochran, Judge, presiding. Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 13, 1915.
    Rehearing denied December 11, 1915.
    Statement of the Case.
    Action by Michael Costello and Rich Costello, partners, trading under the firm name and style of Costello Brothers, plaintiffs, against F. A. Delano, W. K. Bixby and E. B. Pryor, as receivers of the Wabash Railroad Company, defendants, to recover for work done under a railroad construction contract. From a verdict for plaintiffs, defendants bring writ of error.
    Crea & Housum and E. J. Miller, for plaintiffs in error; J. L. Minnis and N. S. Brown, of counsel.
    Vause, Hughes & Kiger and F. J. Thompson, for defendants in error.

      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.

      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 Graves

delivered the opinion of the court.

2. Building and construction contracts, § 65*—what is effect of final estimate of authorized engineer. The final estimate of an authorized engineer under a construction contract is binding unless inaccurately or fraudulently made.

3. Architects and engineers, § 65*—how final estimate of engineer impeached. The final estimate of an authorized engineer can only be impeached for fraud in an action at law.

4. Building and construction contracts, § 95*—who has burden to prove fraud on part of engineer. In an action to recover on a railroad construction contract, where the defense is fraud on the part of the engineer in making the final estimate, the burden of proving fraud is on the defendant.

5. Building and construction contracts, § 103*—when evidence insufficient to show. In an action to recover on a railroad construction contract, where the defense was fraud on the part of the engineer in making the final estimate, evidence held sufficient to sustain a finding that the final estimate was not fraudulently made.

6. Building and construction contracts, § 105*—when instruction not erroneous as assuming disputed facts. In an action to recover on a railroad construction contract where the defense was fraud on part of the engineer in making the final estimate, an instruction that evidence that the amount of work certified by the engineer was greater than that actually performed, or that he erred in accepting or rejecting work, would not impeach his final estimate for fraud, held not erroneous as assuming that the estimate made by the engineer was a final settlement within the meaning of the contract.

7. Appeal and error, § 1640*—when error in giving instruction assuming facts cured. Any error in giving an instruction assuming facts is cured by other instructions directing the jury to disregard any expression in the instructions that seemed to be an assumption of fact.

8. Building and construction contracts, § 103*—when evidence insufficient to establish fraud by engineer. In an action to recover on a railroad construction contract, where the defense is fraud on part of the engineer in making his final estimate, evidence that the amount of work certified by the engineer was greater than that actually performed, or that he erred in accepting or rejecting work, is insufficient to establish fraud in making such estimate.

9. Fraud, § 87 —when not presumed. Fraud will not be presumed from mere proof of mistake.

10. Building and construction contracts, § 105*—when instruc tions not conflicting. In an action to recover on a railroad construction contract, where the defense was fraud on the part of the engineer in, making his final estimate, an instruction that evidence that the amount of the work certified by the engineer was greater than that actually performed, or that he erred in accepting or rejecting work, would not impeach his final estimate for fraud, held not in conflict with two instructions based on a disregard of duty by the engineer given for plaintiff in error.

11. Appeal and error, § 1241 —when party may not complain of conflict in instructions. The plaintiff in error may not complain of the conflict between incorrect instructions given at his instance and a correct instruction given for the adverse party.

12. Fraud, § 133*—when instruction correct. An instruction that fraud- is never presumed, and that when any transaction is capable of two constructions, one that it is honest, and one that it is dishonest, it will be presumed to be honest, held correct.

13. Building and construction contracts, § 105*—when instruction not erroneous. In an action to recover on a- railroad construction contract, where the defense was fraud on the part of the engineer in making his final estimate, an instruction on the measure of damages, held not erroneous as assuming facts or as telling the jury that plaintiffs admitted having received pay for a certain amount of work.

14. Building and construction contracts, § 115*—when instruction on measure of damages correct. In an action to recover on a written railroad construction contract, an instruction on the measure of damages informing the jury that plaintiffs were entitled to recover interest on such amount as was found due on the contract sued on, held correct.

15. Interest, § 8*—when recoverable. A person entitled to recover on a written contract is entitled to interest at the rate of five per cent, per annum from the time it became due.

16. Instructions, § 137*—when properly refused. Requested instructions based upon a misconstruction of a contract sued on are properly refused.

17. Instructions, § 151*—when properly refused. It is not error to refuse cumulative instructions.

18. New trial, § 67*—when motion for on ground of newly-discovered evidence allowed. Before a motion for a new trial based on newly-discovered evidence can properly be allowed, the party urging it must show that he has exercised diligence to find out, first, what the true facts are that it will be competent and necessary to establish by his proof in order that the court and jury may be fully advised as to the real merits of the controversy; second, who knows these facts; third, where the persons are who know the facts; fourth, to obtain the presence of such persons in court as witnesses at the trial or to procure their depositions.

19. New trial, § 102 —when affidavit in support of motion for new trial on ground of newly-discoverect evidence insufficient. An affidavit by a clerk of the defendant in support of a motion for new trial on the ground of newly-discovered evidence, held insufficient.


author: Mr. Justice Craves

text:
    Amanda Lukens et al., Appellants, v. Old Colony Life Insurance Company, Appellee.
    1. Action—when evidence sufficient to show that suit is collusive. In an action on an assigned insurance policy, in which an intervening petition was filed, evidence held sufficient to show that the policy was purchased by funds of the defendant and that the suit was collusive.
    2. Action—when collusive suit dismissed. While a collusive suit is still pending on an assigned benefit insurance certificate purchased with funds of the company, the court will, on intervening petition of the parties in interest, dismiss such suit.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the October term, 1914.
    Suit dismissed.
    Opinion filed October 13, 1915.
    J. H. Westoyer, for appellants.
    Newman, Levinson, Becker & Cleveland and Botsford & McCarthy, for appellee; W. P. Thornton and L. R. Atkins, of counsel.
    David K. Tone and Henry M. Ashton, for intervening petitioners.
   Mr. Justice Craves

delivered the opinion of the court.

Joseph S. Lukens, now deceased, in his lifetime held a policy of life insurance for $2,000 on his own life, issued by the Knights of Globe Mutual Benefit Association, the name of which company was afterwards changed to the Cosmopolitan Life Insurance Association. There were numerous other policies of the same kind issued by that company to other persons, who at the beginning of this litigation had also departed this life. It was contended by several beneficiaries in these policies that the Old Colony Life Insurance Company had in 1909 taken over all the property and assets of the Cosmopolitan Company under a contract of reinsurance entered into between the two companies and was liable on these policies.

Between November 20, 1911 and February 23, 1912, sixteen suits had been begun in the Municipal Court of Chicago against the Old Colony Company to recover the aggregate sum of $28,124 on the basis that it was so liable. On March 27, 1912, this suit was begun in Sangamon county in the name of Amanda Lukens, the widow, and Boy C. Lukens, Anna Lukens, Ada Lukens, William J. Lukens and Elsie Lukens, the children and heirs of Joseph S. Lukens, deceased, against the Old Colony Company to recover on the policy issued to Joseph S. Lukens, deceased, on the same theory on which the other suits rest.

The Old Colony Company entered its appearance and filed its plea in the Lukens suit on the same day that suit was begun. In July of the same year a judgment was entered in that shit for the defendant, and the plaintiffs appealed to this court, and the same was taken by this court at the October term, 1912, on briefs and abstracts filed. Later Amanda Lukens, the widow, and the other next of kin of Joseph S. Lukens filed an intervening petition in this court, alleging that this suit was begun by J. S. Westover, who appeared as the attorney of record, without their knowledge or consent, and prayed that the same be dismissed, and one Clare De Graw, the plaintiff in one of the cases begun in the Municipal Court of Chicago, also .filed herein her intervening petition, by which she represented to this court the pendency of the suit in the Municipal Court heretofore mentioned, and that these suits involved the same questions as are involved in this suit, and on information and belief that this suit was eollusively instituted in the Circuit Court of Sangamon county by the officers, employees and agents of the Old Colony Company for the purpose of securing a judgment in the Supreme Court of this State favorable to that company, and a holding that it was not liable on the reinsurance contract. The Old Colony Company answered these petitions denying that this suit was collusive. The issues so made up were referred by this court to one Joel C. Fitch, as special commissioner, to take and report to this court the evidence offered by the respective parties thereon. The evidence has been taken by the special commissioner so appointed and filed in this court, and the cause is now before us for determination. In the view we take of the case it is only necessary to determine the questions raised by the intervening petitions and the answers thereto.

The preponderance of the evidence shows that Joseph' S. Lukens resided at Plattfield, Kendall county, Illinois, at the time the policy in question was issued to him; that he later removed to Coloma, Michigan, where he resided for about seven years and where on December 20, 1911, he died; that shortly thereafter one Anna Lukens, a daughter of Joseph, wrote to the Old Colony Company, the appellee here, notifying it of the death of her father and requesting payment of the policy in question; that in February, 1912, one H. A. Sibley went to Coloma, Michigan, and took with him the letter written by Anna to appellee above referred to and also a letter written by Joseph S. Lu-kens in his lifetime to appellee “about dropping” his insurance; that Sibley said, in substance, in the presence of Amanda Lukens, Eoy C. Lukens, William Lukens and some others, that he was in the employ of, or represented the Old Colony Company and that there was no chance to recover anything of the company on the policy, but that he wanted to institute a friendly suit against the company to show other policy holders who were bringing other suits against the company that there was no chance to recover anything on their policies; that he also said he was willing to pay $100 for the Lukens claim against the company; that he procured a writing purporting to be an assignment of all claims the Lukens family had against the Old Colony Company, as well as all they had against the Cosmopolitan Life Insurance Association, and purporting to authorize the assignee to sue for, collect, recover, compromise or release the claims so assigned, but that the name of the assignee was not in the writing when the same was delivered; that Sibley paid $100 for that writing; that he was at the time and for a year previously thereto had been in the employ of the Old Colony Company and sustained confidential relations with the vice president of that company; that the money paid for the purported assignment was furnished by that company; that Bevins, whose name was found in the assignment when the same was produced at the hearing, was an insurance man on friendly terms with the officers of the Old Colony Company and frequently turned over business to them that he could not do for his company and received like favors from them; but that he had no personal interest in this litigation or in the purported assignment purchased from the Lukens family or in the money paid for the same.

From the evidence before us we are forced to the conclusion that the purchaser of the Lukens claim by Sibley was for the Old Colony Company and with its money, and was not for Sibley or for Bevins; that this suit was begun with the knowledge and at the connivanee of the officers of that company and was not only friendly but was collusive.

The Supreme Court in In re Burdick, 162 Ill. 48, on page 52 says: “It is settled law that while a collusive or fraudulent suit is still pending the court will, at the suggestion of either party to the record, or a person in interest or who may be prejudiced by the judgment, or even at the instance of a stranger who appears as amicus curies, or upon its own motion, dismiss such suit out of court.”

And in McAdam v. People, 179 Ill. 316, the court said:

“Where there is no real controversy there is nothing to decide. Besides, the court receives no assistance, but is misled by the researches and labor of counsel in such cases. There is sufficient legitimate business here to demand all our time and attention without having the dockets clogged by cases of this character. ’ ’

The prayer of the intervening petition is therefore granted and this suit is dismissed. The costs of both courts to be taxed to appellee.

Suit dismissed.


text:
    The People of the State of Illinois, Defendant in Error, v. Emilio Canutto, Plaintiff in Error.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 883

      —when necessary that abstract contain atl given instructions. A court of review will not consider assignments of error based on the rulings of the trial court upon instructions unless all the given instructions are incorporated in the abstract.
    2. Intoxicating liquors, § 5*-—what are towns under Local Option Act. Towns are political subdivisions of the State under the Local Option Act (J. & A. ¶ 4637 et seq.).

    3. Elections, § 54*—when women may vote. Women may vote on all questions of public policy concerning which there is no constitutional prohibition and which are submitted to the people to determine by popular vote under the acts of the Legislature.
    4. Intoxicating liquors, § 5*—validity of Local Option Act. In passing the Local Option Act (J. & A. ¶ 4637 et seq.), including the right to submit to popular vote what shall be dry territory, the Legislature was not limited by any constitutional provisions, but was supreme.
    Error to the Circuit Court of Christian county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 13, 1915.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against Emilio Canutto, defendant, for selling liquor in anti-saloon territory. From a judgment of conviction, defendant brings writ of error.
    J. E. Hogan, for plaintiff in error.
    Harry B. Hershey, for defendant in error.

      See Illinois Notes Digest, Volt. XI to XV, and Cumulative Quarterly, game topic and section number.

   Mr. Justice Graves

delivered the opinion of the court.


author: Mr. Justice G-raves

text:
    Anderson, Bicknell & Company, Appellees, v. Kaskaskia Live Stock Insurance Company, Appellant.
    1. Insurance, § 120

      —how policy construed. The language of an insurance policy should, in case of doubt, be construed most strongly against the company.
    2. Insurance, § 439*—how policy requiring prompt notice of sickness of animal construed. A clause in a policy of insurance on a stallion, requiring prompt notice of sickness to be given the insurer, held to merely require notice of the sickness which actually caused the stallion’s death.
    Appeal from the Circuit Court of Moultrie county; the Hon. Franklin H. Boses, Judge, presiding. Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 13, 1915.
    Chafee, Chew & Baker, for appellant.
    E. J. Miller, for appellees.

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

   Mr. Justice G-raves

delivered the opinion of the court.

This is an appeal from a judgment for six hundred dollars against appellant in an action of assumpsit on a policy of live stock insurance, insuring appellees against loss of a certain stallion called “Quinet’’ by death from disease, accident, fire and lightning. The policy contained the following stipulation:

“That in the event of said animal or animals’ sickness, or an accident, arising from any cause whatever, it shall be the duty of the insured to immediately procure the services of a veterinarian, and use every possible means to save the life of said animal or animals.

NOTICE OE SICKNESS OR ACCIDENT MUST BE GIVEN TO THE HOME OFFICE AT SHELBYVILLE, ILLINOIS, DIRECT, AND NOT through agents, which notice shall be by telegram or telephone and confirmed by letter within twenty-four hours thereafter. The failure to perform any of the requirements above mentioned as embodied in this paragraph, if death should ensue, shall release this company from any and. all liability under the policy. ’ ’

While the policy was in force and on June 27, 1914, the horse Quinet became sick with laminitis. On July 13, 1914, he died of tetanus.

To the declaration appellant filed the plea of general issue and two special pleas. By the special pleas appellant attempted to interpose the breach of the clause of the policy above quoted as a defense. A demurrer to both of these special pleas was sustained because it was not alleged therein that the company was not notified of the sickness that resulted in the death of the horse. The issues made up by the declaration and plea of the general issue were tried by a jury. Whether the demurrer to the special pleas was properly sustained depends upon the construction that should be given to the clause of the policy above quoted.

Appellant insists that the proper construction of it should be that a failure to give notice of the sickness of an insured animal releases the insurance company from all liability under the policy, even though the animal should die from some other cause disconnected with that sickness, while appellees insist the company is not released unless death ensue from or as a result of a sickness of which the company was not notified.

That language contained in insurance policies should in case of doubt be construed most strongly against the company who worded them is too well settled to need the citation of authority. The doubtful language in the clause under consideration is “the failure to perform any of the requirements above mentioned as embodied in this paragraph” (referring to the notice of sickness therein provided for) “if death should ensue,” shall release this company from any and all liability under the policy. The release of the company in case notice is not given is conditional on the further fact that death shall ensue. The definition of the word “ensue” in Webster’s New International Dictionary is: “To follow; to come afterward; to follow as a consequence or in chronological succession; to result; as, an ensuing conclusion or effect; the year ensuing.” We think the words “if death should ensue” as used in this policy clearly mean, if death follows as consequence. Aside from the definition of the words, the context to our minds clearly shows that such was the sense in which those words are there used. The clause reads: “That in the event of said * * * animal’s sickness * * * from any cause whatever, it shall be the duty of the insured to immediately procure the services of a veterinarian, and use every possible means to save the life of said animal * * Manifestly that means to save the life of that animal from the sickness with which it is then afflicted, not some sickness with which it may at some later date suffer. Then follows the provision for notice and then comes the clause: “If death should ensue,” clearly referring back to the death which every possible means is to be used to prevent. This policy insured against loss by death from disease, accident, fire and lightning. Colic is a disease. If the interpretation of this contract insisted upon by appellant should prevail, and the horse should have the colic for an hour and get well of it, no notice of it being given the company, and six months later it should be struck by lightning and killed, the owner could not recover because the company had not received notice of the attack of colic. A mere statement of the situation shows the absurdity of such a construction.

We think the demurrer was properly sustained.

Notwithstanding the fact that the demurrer was sustained, the defense relied on at the trial was the same appellant sought to interpose by its special pleas, as is shown by the following stipulation made part of the -bill of exceptions:

“It is stipulated by and between the parties hereto that defendant will not contest the value of the horse as shown in the proof of loss and does not contest the proof of loss; but that its defense is based upon the lack of notice on account of sickness.”

The contention of appellant here on the question of appellees’ right to recover on the evidence in the record is the same as already referred to on the question of the sufficiency of the special pleas. The evidence shows that notice was duly and promptly given the company when the horse was stricken with tetanus, and it is not contended here that if the horse had not been sick before that time the notice would be insufficient, but it is strenuously insisted as before that notice should have been given when the horse was first afflicted with laminitis, and that as the evidence fails to show such notice, appellees are not entitled to recover. What has already been said as to the proper construction of the clause of the policy requiring notice in case of sickness applies here and need not be repeated.

The evidence shows without dispute that the horse died of tetanus and not of laminitis and that tetanus is not caused by laminitis; that laminitis is an inflammatory condition and that tetanus is a germ disease. There was evidence tending to show that the horse had fully recovered from laminitis before he was stricken with tetanus. " The jury were explicitly instructed that they must find that to be true before they could find the issues for the plaintiffs. Their verdict is therefore a finding that the horse had completely recovered from laminitis before he was stricken with tetanus.

We are not prepared to say the verdict is contrary to the weight of the evidence.

Something has been said by appellant in their argumerit about the sufficiency, of the proof of loss and of the right of the company to cancel the policy, but those questions have been eliminated by the stipulation above quoted.

The rulings of the court on the admission and exclusion of the evidence and on the giving, modifying and refusing of instructions were in accord with the views here expressed. The judgment is therefore affirmed.

Judgment affirmed.


author: Mr, Justice Graves

text:
    Susan M. Jackson, Appellee, v. William F. Reeter, Appellant.
    1. Assumpsit, Action of, § 59

      —when no recovery for compensation for use and occupation at common law. At the common law, rents or compensation for use and occupation could not be recovered except where the relation of landlord and tenant was shown to exist.
    2. Assumpsit, Action of, § 59*—when recovery .for compensation for use and occupation may he had under statute. To be entitled to recover under section 1 of chapter 80, Rev. St. (J. & A. ¶ 7039), upon the theory of an implied promise to pay reasonable compensation for the use of land, one must be the owner of some estate in the premises and the possession must not be under claim of title or adverse to that of the owner or under an agreement that he need not pay rent.
    3. Assumpsit, Action of, § 64*—when no recovery for compensation for use and occupation may he had. One having a mere right to redeem land claimed by the occupier under an adverse title has no right of action against such person, either at common law or under the statutes, either for rent or compensation for use and occupation.
    Appeal from the Circuit Court of Christian county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the April term, 1915.
    Reversed with finding of fact.
    Opinion filed October 13, 1915.

      Thomas B. Jack, for appellant.
    R. C. Neff, for appellee.

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

   Mr, Justice Graves

delivered the opinion of the court.

This is an appeal from a judgment in a suit in assumpsit brought by appellee against appellant in the Circuit Court of Christian county to recover from appellant for the use and occupation of certain farm lands. Appellant filed a plea of the general issue with notice that on the trial he would show no privity between plaintiff and defendant as to her demand; no title in plaintiff to the rents demanded from defendant; and estoppel by decree. The trial was by the court, jury being waived. The judgment was for appellee for $662.50 and for costs.

There is no serious conflict in the evidence. Most of the facts are stipulated. So far as they are material for the determination of this appeal the facts are as follows: One Johnson, a brother of appellee, formerly owned the real estate in question. He borrowed of appellant about $6,850 and gave him a deed of the premises to secure the loan but retained possession. Later he filed a bill in chancery to redeem the premises from appellant. In that proceeding a decree was entered fixing the amount due appellant from Johnson and ordering Johnson to pay appellant the amount found due by a certain date, or be forever foreclosed of all his rights in the premises. Johnson failed to pay the amount decreed by the date fixed and was dispossessed of the premises by means of a writ of assistance. Appellant then occupied the premises for one cropping season. Just before the expiration of the time fixed in the decree in which Johnson could redeem, his sister, the appellee here, obtained a judgment against him and, after offering to pay appellant; the money he had invested in the premises with interest and cost, .filed her hill to redeem as a creditor. In due time a decree was entered in that suit providing that she could redeem by paying to appellant the amount of his claim together with certain interest and costs. Appellee complied with the conditions and paid appellant his money, whereupon he surrendered possession to her. Soon thereafter this suit was commenced by appellee to recover of appellant rents or a fair and reasonable satisfaction for the use and occupation of the premises for the time he was in possession thereof, with the result already stated.

At the common law, rents or compensation for use and occupation could not be recovered except where the relation of landlord and tenant was shown to exist. Fender v. Rogers, 97 Ill. App. 280; Hadley v. Morrison, 39 Ill. 393; Hill v. Coal Valley Min. Co., 103 Ill. App. 41; Dudding v. Hill, 15 Ill. 61; McNair v. Schwartz, 16 Ill. 24; Greenup v. Vernor, 16 Ill. 26; Bailey v. Campbell, 2 Ill. 110.

The only statutory enactment that changes this common-law rule is section 1 of chapter 80, Rev. St. (J. & A. ¶ 7039), which provides: “That the owner of lands, his executors or administrators, may sue for and recover rent therefor, or a fair and reasonable satisfaction for the use and occupation thereof, by action of debt or assumpsit, in any court of competent jurisdiction, in any of the following cases: ’ ’ then follows a list of five conditions upon which such recovery may be had. The second of those conditions is: “When lands are held and occupied by any person without any special agreement for rent.” It is under this clause of the statute appellee claims to be entitled to recover.

That clause when construed with the part of the section which precedes it plainly means that rents or fair and reasonable satisfaction for the use and occupation of lands held and occupied by one person and owned by another may be collected by the owner in an action of debt or assumpsit. When one party occupies the premises of another without any agreement for the payment of rent, the law implies a promise on the part of the occupant to pay the owner, for the use and occupation thereof, a reasonable rental value. W. C. Walsh & Co. v. Taylor, 142 Ill. App. 46. On page 48 of the opinion in that case Mr. Justice Holdom says: “Aside from the presumptions of law, the statutes of this State in terms give the same remedies to owners against occupants when the relation of landlord and tenant does not exist, as such owner would have if such relationship existed.” He then quotes the parts of section 1 of chapter 80, Rev. St. here under consideration.

To be entitled to recover under the statute quoted, upon the theory of an implied promise to pay reasonable compensation therefor, one must be the owner of some estate in the premises and the possession of the other must not be under claim of title or adverse to that of the owner or under an agreement that he need not pay rent. (Oakes v. Oakes, 16 Ill, 106.) Or where there is an express disclaimer that he holds under such owner. (Woodyatt v. Connell, 38 Ill. App. 475.) The theory of such liability is that the one in possession recognizes the title of the owner and holds under him.

Appellee was not the owner of the land occupied by appellant, or of any estate in it while he was in possession. Nor did he recognize her as having any right, title or interest in it. He held it adversely to her. She was not the owner of the premises or any estate in it while she was claiming the right to redeem, nor at least until she had redeemed, if she was then. When she paid the amount fixed by the court as due appellant in the decree awarding her the right to redeem, he immediately surrendered possession to her. He therefore was never in possession under her and owed her no obligation to compensate her for use and occupation. Whether appellee is yet the owner of the premises or can be until the same are sold under an execution on the judgment made the basis of her redemption proceeding we do not here determine, because it is not involved. Neither do we consider it necessary to determine whether the decree awarding her a right to redeem is res judicata as to the question whether appellant owed any one rent, or compensation for use and occupation to any one.

It is clear to our minds that appellee has no right of action against appellant either at the common law or under the statutes, either for rent or compensation for use and occupation.

The judgment of the Circuit Court is therefore reversed with a finding of fact, to be incorporated in the judgment of this court.

Judgment reversed with finding of fact.

Finding of fact. We find as an ultimate fact that appellee did not own the premises in question or any interest, title or estate therein while appellant was in possession thereof.


text:
    F. C. Benjamin, Appellee, v. James A. Allison et ux., Appellants.
    1. Forcible entry and detainer, § 35

      —what prerequisite to jurisdiction of action of forcible detainer. An action of forcible detainer, being in derogation of the common law, the statute under which it is brought must be fully complied with in order to confer jurisdiction.
    2. Forcible entry and detainer, § 30*—when demand in loriting prerequisite to maintenance of action of forcible detainer. A demand in writing is an essential prerequisite before bringing an action of forcible detainer by a purchaser of premises at sale under execution or decree, or those claiming under him.
    3. Forcible entry and detainer, § 36*—when court acquires no jurisdiction of action of forcible detainer. In an action in forcible detainer where no notice was served on one defendant and a notice served on the other bore no signature, as required by the statute, and incorrectly described the property' in question, held that the court acquired no jurisdiction, and its judgment for the plaintiff was a nullity.
    Appeal from the Circuit Court of McLean county; the 'Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the April term, 1915.
    Reversed.
    Opinion filed October 13, 1915.
    Carlock & Carlock, for appellants.
    M. A. Brennan and Ralph Heffernan, for appellee.

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

   Mr. Justice Graves

delivered the opinion of the court.

Appellee brought suit in forcible detainer against appellant before a justice of the peace. From the judgment of that court an appeal was taken to the Circuit Court, where judgment was rendered awarding possession to appellee, the plaintiff below. The record of the Circuit Court is brought here for review by appeal of defendants below.

The facts are that in 1901 one J. H. Johns recovered a judgment before a justice of the peace for $59.71 against the father and mother of appellant James A. Allison. At that time they were the owners of a life estate in the real estate in question here. Appellant James A. Allison owned the fee subject to the life use of his parents. A transcript of that judgment being duly certified by the justice before whom it was rendered, an execution was issued by the clerk of the Circuit Court and levied on the life estate of the elder Allisons, and such estate was in due time sold, and was purchased by one Calvin Rayburn. He executed a conveyance to A. L. Samuel dated December 29, 1904. He executed a conveyance to appellee on June 14, 1913. These two deeds were recorded on the same day the last one was executed. The elder Allisons lived on the premises until 1907 when, both being sick, they went to Bloomington to be “doctored.” They did not move the furniture from the home place and occasionally returned to it for short stays. In 1908, James Allison, Sr., died. In 1913, the elder Mrs. Allison returned to the premises and was residing thereon when this suit was instituted. "When she returned, as well as while she and her husband' were in Bloomington, the premises were farmed on share rent by appellant as the tenant of his parents. He was also residing on the premises when this suit was instituted. No demand for possession of any kind was made on the elder Mrs. Allison, and the only notice or demand in writing ever served on any one in this case so far as this record shows was the following:

“Bloomington, Ill., Nov. 29, 1913.

“To James Almost Allison:

“You are hereby notified to vacate the following described property by March First, Nineteen Hundred and Fourteen (1914): North East Quarter of the North West Quarter of Section Fifteen (15), and eleven (11) acres off of the West side of the South West Quarter of the North East Quarter of Section Fifteen (15), except One Acre in North East corner of the eleven.(11) acres above described, all in Township Twenty-three (23) N. Range East of 3rd P. M., in McLean County, Ill.”

That notice was not signed by any one.

The case was tried by the court without a jury. The record shows a finding that possession of the “premises described in the complaint” are unlawfully withheld. The description of the premises in the complaint and in the notice are not the same. A certain tract of eleven acres is described in the complaint as being in the “North West Quarter of the North East Quarter of Section Fifteen.” The foregoing notice described an eleven acre tract as being in the “South West Quarter of the North East Quarter” of that section.

Section 2 of chapter 57, Rev. St. (J. & A. ¶ 5843) provides: “The person entitled to the possession of lands or tenements may be restored thereto in the manner hereafter provided:

“Sixth—* * * When lands or tenements have been * * * sold under the judgment or decree of any court in this State, * * * and the * * * party to such judgment or decree * * * refuses or neglects to surrender possession thereof after demand in writing by the person entitled thereto, or his agent.” Section 3 (J. & A. ¶ 5844) of that chapter, after providing how such demand may be served, and the form it may be in, provides: “Which demand shall be signed by the person claiming such possession, his agent or attorney.”

The action of forcible entry and detainer, or forcible detainer, being special statutory proceedings, summary in their nature and in derogation of the common law, the statute conferring such jurisdiction must be strictly pursued in the method of procedure prescribed by it or jurisdiction will fail to attach. Fitzgerald v. Quinn, 165 Ill. 355, 360; French v. Willer, 126 Ill. 611.

A demand in writing is an essential prerequisite "before bringing an action of forcible detainer by a purchaser of premises at sale under execution or decree, or those claiming under him. Dickason v. Dawson, 85 Ill. 53; Brachensiech v. Vahle, 48 Ill. App. 312; Lehman v. Whittington, 8 Ill. App. 374; Jennings v. Jennings, 94 Ill. App. 26.

No demand whatever being made on one of the appellants, and the notice served on the other, even if it could be construed to be intended as a demand, not being signed by appellee, or his agent or attorney as the statute requires, or in fact by any one, and not correctly describing the property, the court failed to acquire jurisdiction, and its judgment is a nullity. The judgment of the Circuit Court is therefore reversed.

Judgment reversed.


text:
    O’Neill & Gyles, Appellees, v. Postal Telegraph-Cable Company, Appellant.
    1. Telegraphs and telephones, § 29

      —what law governs liability for delay in transmission of interstate telegrams. All questions relating to liability for damages by reason of delay in transmission of interstate telegrams must be determined under the Federal law.
    2. Commerce, § 5*—what is effect of Carmack Amendment to Interstate Commerce Act. The Carmack Amendment to the Interstate Commerce Act supersedes all the regulations and policies of the States on subjects covered by it.
    3. Telegraphs and telephones, § 24*—what is extent of liability for delay in delivery of cipher message. Where an interstate telegraph message is in cipher and unintelligible and the telegraph company is not informed of the nature, importance or extent of the transaction to which it relates, the damages for delay in delivery are, where a stipulation on the back of the blank so provides, limited to the amount paid by the sender for its transmission, and if he has paid nothing, as where the message has been sent “collect,” he can recover nothing.
    4. Telegraphs and telephones, § 27

      —when sender of interstate message hound hy terms on Maníes limiting liahility. A sender of an interstate telegraph message is bound by the terms relating to the company’s liability for delay, printed upon the back of the blank on which he writes the message, whether he knows of them or not.
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the April term, 1915. Reversed with finding of fact.
    Opinion filed October 13, 1915.
    Rehearing denied December 11, 1915.
    O’Connell & Dolan, for appellant.
    Thomas S. Weldon and De Mange, Gillespie and De Mange, for appellees.

      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 Graves

delivered the opinion of the court.

Appellees were grain brokers at Bloomington, Illinois. They bought grain in carload lots from local dealers and shipped the same to and sold the same at various large cities, among which was Cincinnati, Ohio. Much of their business was conducted by telegraph. Some of the messages were in cipher and were unintelligible. Appellant is a telegraph company engaged in the business of transmitting for hire messages for its patrons from one of its offices to. another located in the same and difi'ereht States.

On May 28, 1912, at 8:45 a. m., appellees filed in the offices of appellant in Bloomington to be sent collect to Cincinnati, Ohio, the following message:

“To Allen & Munson,

Cincinnati, Ohio.

Bought absolute acutely dampness.

O’Neill & Gyles.”

On the face of the blank on which this telegram was written there was printed the following:

“The Postal Telegraph-Cable Company (incorporated transmits and delivers this message subject to the terms and conditions printed on the back of this blank. * * * send the following telegram subject to the terms on the back hereof, which are hereby agreed to.”

On the back of the blank is printed the following:

“The Postal Telegraph-Cable Company (Incorporated) transmits and delivers the within telegram subject to the following Terms and conditions:

“To guard against mistakes or delays, the sender of a telegram should order it repeated; that is, telegraphed back to the originating office for comparison. For this, one-half of the unrepeated telegram rate is charged in addition, unless otherwise indicated on its face THIS IS AN UNREPEATED TELEGRAM AND PAID FOR AS such, in consideration whereof, it is agreed between the sender of the telegram and this company as follows:

“1. The Company shall not be liable for mistakes or delays in the transmission or delivery, or for non-delivery, of any unrepeated telegram, beyond the amount received for sending the same; nor for mistakes or delays in the transmission or delivery, or for non-delivery, of any repeated' telegram, beyond fifty times the sum received for sending the same, unless specially valued; nor in any case for delays arising from unavoidable interruption in the working of its lines; nor for errors in cipher or obscure telegrams.

“2. In any event the Company shall not be liable for damages for any mistakes or delays in the transmission or delivery, or for non-delivery of this telegram, whether caused by the negligence of its servants or otherwise, beyond fifty times the repeated telegram rate, at which amount this telegram, if sent as a repeated telegram, is hereby valued, unless a greater value is stated in writing hereon at the time the telegram is offered to the Company for transmission, and an additional sum paid or agreed to be paid based on such value equal to one-tenth of one per cent, thereof.

“3. The Company is hereby made the agent of the sender, without liability, to forward this telegram over the lines of any other Company when necessary to reach its destination.

“4. Messages will be delivered free within the established free delivery limits of the terminal office. For delivery at a greater distance a special charge will be made to cover the cost of such delivery.

“5. No responsibility regarding messages attaches to this Company until the same are presented and accepted at one of its transmitting offices; and if any message is sent to such office by one of this Company’s messengers, he acts as the agent for the sender for the purpose of delivering the message and any notice or instructions regarding it to the Company’s agent in its said office.

“6. The Company shall not be liable for damages or statutory penalties in any case where the claim is not presented in writing within sixty days after the telegram is filed with the Company for transmission.

“7. The above terms and conditions shall be binding upon the receiver as well as the sender of this telegram.

“8. No EMPLOYEE OE THIS COMPANY IS AUTHORIZED TO VARY THE FOREGOING.

Clarence B. MacKay, President.

"Charles C. Adams, Edward Reynolds,

Vice-Pres’t. Vice-Pres’t and Gen’l. Mgr.

Charles P. Bruch, Vice-Pres’t.”

The message was an unrepeated message sent at the rate charged for unrepeated messages, the charge therefor to be collected at Cincinnati, Ohio, and was in cipher and wholly unintelligible without the key to the cipher, and it does not .appear that appellant was informed of its contents, importance or nature, or of the amount of the transaction.

It is contended that the message was unduly delayed and that appellees suffered a loss of-$175, in consequence of such delay.

A judgment of $175 against the telegraph company was obtained in the Circuit Court.

In the view we take of the case it may be conceded that the message was unduly delayed and that appellees were damaged to the amount of the judgment. Tet that judgment must be reversed for other reasons.

The message sent was an interstate message, and comes within the provisions of the Act of Congress known as the Carmack Amendment to the Hepburn Act. Section 1 of that Act as thus amended provides: “That the provisions of this act shall apply to * * * telegraph, telephone and cable companies * * * engaged in sending messages from one State, territory or district of the United States to any other State, territory or district of the United States, or to any foreign country, who shall be considered and held to be common carriers within the meaning and purposes of this act * * *. All charges made for any services rendered or to be rendered * * * for the transportation of messages by telegraph * * * or in connection therewith shall be just and reasonable * * *. Provided that messages by telegraph * * * subject to the provisions of this act, may be classified into day, night, repeated, unrepeated, letter commercial, press, government and such other classes as are just and reasonable and different rates may be charged for the different classes of. messages. ’

All questions relating to liability for damages by reason of delay in transmission of interstate telegrams must be determined under the Federal law. Western Union Tel. Co. v. Bilisoly, 116 Va. 562, 82 S. E. 91; Western Union Tel. Co. v. First Nat. Bank of Berryville, 116 Va. 1009, 83 S. E. 424; Williams v. Western Union Tel. Co., 203 Fed. 140. The Carmack Amendment supersedes all the regulations and policies of the State on subjects covered by it. Adams Exp. Co. v. Croninger, 226.U. S, 491; Gamble-Robinson Com mission Co. v. Union Pac. B. Co., 262 Ill. 400; Staley v. Illinois Cent. R. Co., 268 Ill. 356.

Where, as in this case, the message is in cipher and is unintelligible and the telegraph company is not informed of the nature, importance or extent of the transaction to which it relates, the damages for delay are limited by the Federal law to the amount paid by the plaintiff for sending it. Primrose v. Western Union Tel. Co., 154 U. S. 1; Postal Co. v. Nichols, 159 Fed. 643; Western Union Tel. Co. v. Coggin, 15 C. C. A. 231, 68 Fed. 137.

Appellees in the case at bar paid nothing for sending the message in question, and therefore under the rule announced can recover nothing.

In view of what has been said, it seems unnecessary to determine whether the sender of this message was aware of the stipulation and conditions printed on the face and back of the blank on which he wrote this message or whether appellees were bound by those stipulations, whether he actually knew what they were or not.

It is perhaps enough to say of the first question that appellee who- wrote this message was himself a telegraph operator and had during the seven months next preceding the sending of this message sent several thousand messages written on the same kind of blanks, and while it might be true that he did not know what the stipulations and conditions thereon were, if he did not, he certainly was lacking in ordinary observation.

As to whether he would be bound by those conditions and stipulations if he was in truth ignorant of them, the holdings of our State courts are in conflict with the decisions of the United States courts. Our courts hold that he would not be. Webbe v. Western Union Tel. Co., 169 Ill. 610; Tyler, Ullman & Co. v. Western Union Tel. Co., 60 Ill. 424; Beggs v. Postal Tel.-Cable Co., 258 Ill. 238 [5 N. C. C. A. 650], and that is undoubtedly the law as to intrastate messages. But the Federal courts take the opposite view, and hold that the sender of a message is bound by the conditions and stipulations printed on the blank on which he writes the message whether he actually knows what they were or not. Primrose v. Western Union Tel. Co., 154 U. S. 1; Beasley v. Western Union Tel. Co., 39 Fed. 181; Postal Tel.-Cable Co. v. Nichols, 89 C. C. A. 585, 159 Fed. 643. See also Adams Exp. Co. v. Croninger, 226 U. S. 491.

Under the rule that the Federal law governs as to interstate messages, it would seem that appellees were bound by the conditions printed on the blank used in sending this message. One of those stipulations expressly provides that the company will not be liable for mistakes or delays in sending of any unrepeated messages beyond the amount received for sending the same.

The judgment of the Circuit Court is reversed with a finding of fact to be incorporated in the judgment of this court that appellees paid nothing for sending the message, the delay in the delivery of which is made the basis of this suit.

Reversed with finding of fact.


text:
    James A. Jordan and Charles A. Jordan, Appellees, v. Amanda Jordan, Sr., et al., on appeal of Nettie B. Jordan et al., Appellants.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Estates, § 3

      —when estate not vested. Where by will property was left to trustees to collect rents and profits and pay off all indebtedness and then to pay the income thereof equally among the testator’s children living at such time, and to the heirs of such child as may have died, the portion which would have gone to him had he been living, and it was further provided by such will that the amount of an advancement made and to be made to one of the testator’s grandsons should, if not repaid by him, be deducted from any money that might eventually go to his father, and the father died before the debts of the estate were paid and thus did not become entitled to any of the proceeds of the income thereof, a decree finding that the amount of such advancement and also a debt owing by the grandson’s father to the estate, together with a debt owing by the grandson’s brothers and sisters to the trustees for money advanced them, were chargeable against and ordering that they be deducted pro rata from the shares of the rents and profits accruing to such grandchildren, held erroneous and reversed and remanded with directions to set off against each heir’s distributive portion the amount of his indebtedness, since such grandchildren, though designated in the will as heirs of the father, took not as such by inheritance, but under their grandfather’s will, the father having but a contingent life estate, in the rents and profits, which never became vested in him.

      Appeal from the Circuit Court of Ford county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the April term, 1915.
    Reversed and remanded with directions.
    Opinion filed October 13, 1915.
    Statement of the Case.
    Report by trustees of an estate praying a decree ordering distribution of the fund. James A. Jordan and Charles A. Jordan, trustees, petitioners, against Amanda Jordan, Sr., et al., respondents, on appeal of Nettie B. Jordan, Chloa Day Jordan, James Blaine Jordan, Cenoth L. Jordan, William McKinley Jordan, Homer Jordan, by Frank Bindley, his guardian ad litem, respondents, from a decree ordering distribution.
    John H. Passmore and Daniel Riley McMaster, for appellants.
    C. E. Beach and Phillips & Swanson, for appellees.
    Frank Lindley, for Homer Jordan, minor appellant.

      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 Graves

delivered the opinion of the court.

2. Wills, § 261*—how word “heirs" construed. In a will creating a trust estate and providing that the rents and profits thereof should be collected and paid to the testator’s “children, share and share alike, and in case of the death of any one of my said children, the same to be paid to the heirs or in case of minority to the legal guardian of such child or children, share and share alike,” the word “heirs” held to be a word of description of the class of persons to which the residuary estate was devised and not to indicate that they were to take by inheritance.

3. Executors and administrators, § 359*—when barred debts may be offset against distributive shares. Though debts owing to an estate cannot be collected because the statute of limitations has run against them, the amounts thereof may, however, be .offset by the trustees against distributive shares becoming payable to such debtors.


text:
    Charles M. Peirce, Appellant, v. William Ott, Appellee.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 291

      —when order not appealable. An order overruling a motion for a new trial is neither a final judgment nor an appealable order.
    Appeal from the County Court of McLean county; the Hon. Homes W. Hall, Judge, presiding. Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 13, 1915.
    Rehearing denied December 11, 1915.
    Statement of the Case.
    Action by William Ott, plaintiff, against Charles M. Peirce, defendant, for work and labor. From a judgment for the plaintiff before a justice of the peace, the defendant appealed to the County Court, and from a judgment for the plaintiff there, the defendant appeals to this court.
    What happened in the County Court after the jury returned a verdict for the plaintiff is thus shown by the abstract.
    “Motion by defendant for new trial order of court overruling, motion for new trial, exception by defendant, appeal prayed to the Appellate Court, and allowed.”
    Charles M. Peirce, pro se and 'Lester H. Martin, for appellant.
    Walker R. Flint and A. M. Hester, 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 Graves

delivered the opinion of the court.

2. Appeal and error, § 866 —what abstract must contain. An appellant must bring before the reviewing court not only in the record, but in the abstract of the record, everything that is necessary for such court to know and intelligently pass upon the question raised on appeal, and a court of review will look only to the abstract for error.

3. Appeal and error, § 1786*—when no reversal possible. Where an abstract on appeal fails to show an appealable order or a final judgment, there is nothing to reverse even if manifest error had been committed on the trial.

4. Appeal and error, § 1744*—what court will consider in passing on judgment. A court of review will always look at the record to find" reason to affirm a judgment.

5. Appeal and error, § 1752*—when judgment affirmed pro forma. Where on appeal it appeared from the record that a final judgment was in fact entered on the verdict, such judgment was affirmed pro forma for want of a sufficient abstract.


text:
    Anna E. Sutherland, Appellant, v. George C. White, Appellee.
    (Not to he reported in full.)
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 13, 1915.
    Statement of the Case.
    Action by Anna E. Sutherland, plaintiff, against George C. White, defendant, on a contract for services rendered by the plaintiff in support of the mother of the parties. From a judgment against her, the plaintiff appeals.
    Livingston & Bach and S. P. Robinson, for appellant.

      Abstract of the Decision.
    Appeal and error, § 1466

      —when admission of evidence harmless error. In an action by one of two tenants in common against the other, based on an alleged promise of the defendant to pay the plaintiff at a certain rate for the latter’s supporting their mother, held that the admission of evidence in support of the defendant’s set-off, based upon an alleged overpayment by him to the plaintiff in settlement of their respective rights to the income of the property held in common, was harmless error where the jury found the issue for the plaintiff on such set-off.
    Weltt, Sterling & Whitmore, for appellee.

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

   Mr. Justice Graves

delivered the opinion of the court.


author: Mr. Justice Thompson

text:
    W. J. Elzy for use of the Farmers’ Bank of Gays, Appellee, v. First National Bank of Findlay, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Coles county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed October 13, 1915.
    Statement of the Case.
    Garnishment proceedings by W. J. Elzy, for use of the Farmers’ Bank of Gays, plaintiff, against the First National Bank of Findlay, garnishee. From a judgment for plaintiff, defendant appeals.
    This is the second appeal of this cause to this court. The opinion on the former appeal reversing and remanding the case appears in 180 Ill. App. 711, where the facts are stated as the case then appeared. After the case was redocketed, Fred Morrison withdrew his interpleader.
    Abstract of the Decision.
    1. Abatement and revival, § 49

      —when plea of pendency of another action is bad on demurrer. A plea by a defendant in a garnishment suit averring that after the beginning thereof a suit in chancery, seeking recovery of the same money sought to be garnished, had been instituted, and that a decree therein was still pending on appeal, and praying that the garnishment suit may abate until such chancery suit be fully adjudicated, held bad on demurrer.
    2. Appeal and error, § 1725*—when prior decision law of case.
      Questions disposed of on appeal are not reviewable on a subsequent appeal.

      The Bank of Findlay filed a plea averring that after the beginning of this garnishment suit, Fred Morrison had begun a suit in chancery against the Bank of Find-lay, the Farmers’ Bank of Gays, W. J. Elzy and other named defendants, in which Morrison was claiming the same money sought to be garnisheed, that the Circuit Court had dismissed said bill, and that an appeal had been prayed and was undetermined. The plea concluded with a prayer that “this suit may abate until the said cause now pending in the Appellate Court is fully adjudicated.” The court sustained a demurrer to this plea. This ruling was assigned for error.
    The plaintiff did not offer in evidence any record of any judgment in favor of the Farmers’ Bank of Gays against Elzy, or of any execution or return thereon.
    E. A. Richardson, for appellant.
    Vause, Hughes & Eiger, 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 Thompson

delivered the opinion of the court.

3. Garnishment, § 100 —when evidence sufficient to sustain judgment. To entitle a plaintiff in garnishment proceedings to a judgment, there must be evidence of a judgment recovered by him against the original debtor, issue of an execution thereon and a return “no property found.”


author: Mr. Justice Thompson,

text:
    Frank Halford, Appellee, v. John Dodot et al., Appellants.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Cbeiqhton, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed October 13, 1915.
    Statement of the Case.
    Action by Frank Halford, plaintiff, against John Dodot, Defence Herbain, Henry Herbain and Anheuser-Busch Brewing Association, defendants, for an assault by a person alleged to have been made intoxicated by liquor sold him by the defendants. From a judgment for plaintiff, defendants appeal.
    The following instruction, requested by the defendants, was given as modified by the court by addition of matter in parentheses, to which modification the defendants objected:
    “The court instructs the jury that if you believe from the evidence in this case that the plaintiff, Hal-ford (while not in discharge of his duty as a deputy sheriff), drew a revolver and pointed it at Bichard Drennan, or flourished the same in his presence, in such a manner as to induce in the mind of the said Drennan a reasonably well founded belief that he was actually in danger of receiving great bodily injury, and that in an attempt to defend himself against said apprehended danger to his person he inflicted the injury complained of, upon the person of the plaintiff, Hal-ford, there can be no recovery in this case and you should find the defendants not guilty.”
    Abstract of the Decision.
    1. Intoxicating liquors, § 247

      —what questions for jury in action for damages for assault by person intoxicated. Where, in an action for damages resulting from an assault by one alleged to have become intoxicated as the result of liquor sold him by the defendants, there was evidence that such intoxicated person had been drinking in the saloons of the defendants immediately prior to the assault, the question whether the plaintiff was injured in consequence of- such intoxication and whether such intoxication was caused in whole or in part by the liquor sold by the defendant, held for the jury.
    2. Intoxicating liquors, § 225*—when evidence sufficient to sustain verdict in action for damages for assault by intoxicated person. In an action for damages resulting from an assault committed in a mélée in the defendants’ saloon by one alleged to have become intoxicated by sale of liquor to him by the defendants, a verdict for the plaintiff held not unjustified by the evidence.
    3. Intoxicating liquors, § 256*—when instruction in action for damages for assault by intoxicated person properly modified. In an action for damages for an assault by an alleged intoxicated person, which the defendants claimed was made by such person in self-defense, an instruction that there could be no recovery if the plaintiff drew a revolver and pointed it at the person who committed the assault, thus inducing in his mind a reasonably well-founded belief that he was in actual danger of receiving great bodily injury, held properly modified by inserting after the word “plaintiff” the words “while not in discharge of his duty as a deputy sheriff,” where the fact that he was a deputy sheriff was known to the person committing the assault at the time thereof.

      William H. Nelms and Thomas F. Ferns, for appellants.
    William J. Lawler and John G. Friedmeyer, for appellee.

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

   Mr. Justice Thompson,

delivered the opinion of the court.

4. Intoxicating liquors, § 256*—when instruction in action for damages for assault by intoxicated person properly modified. In an action for an assault on a deputy sheriff by an intoxicated' person, which was claimed by the defendants to have been made in self-defense, an instruction which told the jury that if they believed from the evidence that plaintiff unlawfully pulled a revolver on A, the person committing the alleged assault, so as to cause said A to fear he was about to receive bodily harm, etc., held properly modified by substitution for the word “unlawfully” the words “while not in the reasonable discharge of his duties as a deputy sheriff,” where A knew the plaintiff was a deputy sheriff.


text:
    Lincoln F. Mostoller, Appellee, v. Harriet B. Liver, Appellant.
    1. Quieting title, § 36

      —what constitutes cloud. An inchoate right of dower constitutes a cloud in the title to real estate.
    2. Quieting title, § 53*—when hill lies to remove cloud. A bill in equity will lie to remove a cloud on title to land resulting from the assertion of an inchoate right of dower therein, by a woman divorced from the plaintiff’s predecessor in title, founded upon uncertainty of the legal effect of the divorce decree.
    3. Divorce, § 106*—when provision for alimony is in lieu of dower. A divorce decree giving the divorced woman a block of bank stock and providing for the payment to her of a monthly allowance for life, or so long as she remained single, and secured by mortgage on. some of the husband’s real estate, held to be in lieu of any inchoate right of dower in other real estate of the husband..
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the October term, 1914. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 13, 1915.

      Cassoday, Butler, Lamb & Foster, for appellant; Ernest O. Best, of counsel.
    Bracken & Young and F. Y. Hamilton, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.

Lincoln F. Mostoller filed a bill in equity, in the Circuit Court of McLean county, representing that he was the owner in fee simple and in the actual possession of certain lands therein described in McLean county, and praying for the removal of a cloud from the title and for relief. The bill alleges a chain of title from the heirs of Thomas Snell, deceased, who in his lifetime was the owner of the said real estate. It is alleged that Thomas Thornton Snell, a son of Thomas Snell, deceased, inherited an undivided one-sixth part of said real estate from his father. At the time of Thomas Snell’s death Thomas Thornton Snell was a married man, his wife being Harriet B. Snell, now Harriet B. Liver, defendant herein. After the title to the one-sixth interest had vested in Thomas Thornton Snell, Harriet B. Snell on June 27, 1908, obtained a divorce from in the Circuit Court of Elk-hart county, Indiana. Subsequent to this divorce proceeding Harriet B. Snell, who was the complainant in the said divorce proceeding, intermarried with John B. Liver of Chicago. Thomas Thornton Snell also married again, and he and his second wife joined in a conveyance to Harry Snell of his interest in the said real estate in question, which he had inherited from Thomas Snell, and by various conveyances set forth in the bill the title to said real estate was vested in complainant. There is attached to the bill, and made a part of it, a copy of the decree of divorce obtained by Harriet B. Snell. The decree of the Indiana court found that Thomas Thornton Snell was possessed of real and personal property of the value of $200,000 and awarded to Mrs. Snell as alimony 125 shares of the capital stock of the St. Joseph Valley Bank of Elkhart, -Indiana; the further sum of $75 per month so long as she shall live and until she remarries, said monthly payments to begin July 1, 1908, with the further sum of $40 per month for twenty-three consecutive months, said, last described payments also to begin July 1, 1908; also the further sum of $60 per month for six months, said last described payments to begin October 1, 1908, and $60 per month for six consecutive months to begin with October 1,1909. The divorce decree provided that the said payments should be secured by the defendant executing his contract therefor, and securing the same by a mortgage on certain described lands in DeWitt county, Illinois, amounting to 400 acres. The decree further recites that the parties are present in court and that the said bank stock has been delivered to the complainant, and that the defendant has executed and delivered to the defendant a mortgage securing said ‘ ‘ alimony and payments herein ordered to be made.”

Thomas Thornton Snell was, at the time the defendant obtained her divorce from him, seized of the undivided one-sixth of the real estate now owned by complainant by purchase from the Snell heirs. Mrs. Harriet B. Snell, now Liver, never joined in the execution of the deed made by Snell, her former husband. The defendant filed a general and special demurrer to the bill. The court overruled the demurrer and, the defendant abiding by her demurrer, entered a decree finding that she has not an inchoate right of dower in said land and that" her claim that she has such right of dower is a cloud on the title of complainant, and decreeing that the cloud be and is removed and that complainant is the owner of the title in fee simple. The defendant appeals.

The appellant’s first contention is that an oral assertion of interest is not a cloud, and that an inchoate right of dower cannot be asserted against any one prior to the time it becomes consummated and she cannot be required to defend her right while it so remains. Appellant has an inchoate right of dower in all the real estate of which her husband was seized, when she obtained her divorce, unless that right has in some way been barred or relinquished. An inchoate right of dower constitutes a cloud on the title to real estate. Cowan v. Kane, 211 Ill. 573. The bill alleges that because of the claim of appellant the market value of appellee’s said land is greatly depreciated and he is prevented from making sale of the same. If the decree of the Elkhart Circuit Court is so uncertain that the parties affected by it construe it differently and it, in fact but not in terms, is a bar to the inchoate right of dower of appellant, then appellee is entitled to have the uncertainty of such decree made certain and to have such pretended claim, which is a cloud, removed. Equity will not permit appellant, if she in fact has no inchoate right of dower, to depreciate the market value of appellee’s land by making a false claim that she.has such right. To deny the right to have such a cloud removed would be to permit and assist the appellant to extort from appellee compensation for relinquishing a pretended claim, when in fact she has no claim or interest. We see no good reason why the bill cannot be maintained.

The remaining question is, has appellant an inchoate right of dower in the described land! Appellee insists that the allowance of alimony made by the Indiana court was in lieu of dower in the real estate then owned by him.

When the divorce decree was rendered, the parties were both present in court and from the recitals in the decree, so far as alimony is concerned, it appears to have been an agreed decree although it does not so recite. Alimony was ordered- paid to Mrs. Snell monthly “so long as the plaintiff shall live and until she remarries.” The defendant in the divorce proceeding was ordered to execute a mortgage on land in DeWitt county, Illinois, to secure a contract for the payment of the" several sums of money directed to be paid to appellant. Snell did deliver to Mrs. Snell in open court the bank stock in accordance with the terms of the decree and executed a mortgage upon 400 acres of land in DeWitt county, Illinois, “securing a contract executed by the defendant in open court with the plaintiff for the payment of the alimony above found.” The decree in the Elkhart Circuit Court is similar to the decree in Storey v. Storey, 125 Ill. 608, construed in Adams v. Storey, 135 Ill. 448. The payment of the alimony decreed did not terminate necessarily with the life of Thomas Thornton Snell. It only terminated with her life unless she married again, in which event it would terminate at that time. If appellant remained unmarried the payment of the $75 per month remained a charge on the 400 acres of land until appellant’s death. There was a similar provision in the Storey case, supra. The defendant in that case executed a bond for the payment of the annual allowance to Mrs. Storey so long as she shall live and remain unmarried. Mrs. Storey after the death of her divorced husband sought to have dower awarded in the real estate he possessed at the time of the divorce. The court said, where after a divorce in favor of a wife, by consent of both parties an annual allowance was decreed and secured by a lien on certain real estate of the husband and also by his bond and deed of trust upon the same real estate, it would be presumed that the allowance was in lieu of dower and held that she was not entitled to dower. The only distinction between the Storey case and this case is that in the case at bar appellant has remarried in the lifetime of her first husband and her right to the monthly payments has been terminated by her own act, while in the Storey case Mrs. Storey remained single and collected her annual allowance not only up to the time of his death but for some time thereafter. The same principal however is involved and we must hold that appellant has not an inchoate right of dower in the real estate that her divorced husband possessed when the divorce was granted, for the reason that the decree gave her a lump sum, i. e., the bank stock and a monthly allowance that would extend and could be collected beyond the lifetime of Snell, provided she survived him and remained unmarried. The decree is therefore affirmed.

Affirmed.


author: Mu.. Justice Thompson

text:
    Millard F. Fuller by his Guardian, Appellant, v. Albert H. Oettle, Appellee.
    (Not to be reported in full.)
    Appeal from the County Court of Calhoun county; the Hon. Charles E. Cook, Judge, presiding. Heard in this court at the April term, 1914.
    Appeal dismissed.
    Opinion filed October 13, 1915.
    Statement of the Case.
    Proceeding to try the right to property, taken on execution, by Millard F. Fuller, by his guardian, plaintiff, against Albert H. Oettle, defendant. Appeal by plaintiff dismissed.
    Joseph Marsh, for appellant.
    Charles Temple, for appellee.

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

   Mu.. Justice Thompson

delivered the opinion of the court.

Abstract of the Decision.

Appeal and error, § 1120 —when appeal dismissed for insufficiency of record. Where, in a proceeding to try the right to property taken on execution, the record on appeal fails to show any motion for a new trial or final judgment in the trial court, the appeal will be dismissed.