text:
    City of Carrollton v. George W. Clark et al.

      Cities — Mayor, a Member of the Council — Casting Vote of, on Passage of Ordinance.

    1. The Mayor of a city, though not an Alderman, is a member of its Council, and as such is entitled to vote in case of a tie on the question of the passage of an ordinance.
    2. An ordinance adopted by the casting vote of the Mayor, will sustain' a prosecution for a violation of its provisions.
    [Opinion filed May 21, 1886.]
    Appeal from the Circuit Court of Green County; the Hon,. Lyman La get, Judge, presiding.
    Mr. E. A. Doolittle, for appellant.
    Mr. James R. Ward, for appellees.
   Pleasants, J.

There is no question of fact in this case. Appellant is organized under the general law and has six Aldermen. Appellees were prosecuted for selling intoxicating liquor in violation of a supposed ordinance which was declared to be adopted by the casting vote of the Mayor. The record of the proceedings of the City Council upon its passage shows that the Aldermen were all present and voted by yeas and nays — “Alderman Carmody, Clark and Lyon voting aye, .and Hazle, Sheedy and Johnson voting no,” and “ that this being a tie, Mayor Hassey voted aye and the ordinance was declared to be adopted.”

On appeal the case was tried by the court without a jury, and upon, the record referred to, which was in evidence,"it was held the Mayor had no right to vote upon that question. The ordinance was excluded, and the issues found and judg. ment rendered for the defendants, to which rulings, finding and judgment plaintiff excepted and took this appeal.

That the supposed ordinance was duly published and that defendants had made four sales contrary to its provisions were admitted, and the only question is whether it was properly passed, or still more definitely, had the Mayor the right to give the casting vote on the question of its passage.

Section 6 of Art. II of the act (E. S. Ch. 24) provides that “ the Mayor shall preside at all meetings of the City Council* but shall not vote except in case of a tie, when he shall give the casting vote,” which would seem to be a clear answer and quite conclusive, unless the law has made some exception that embraces this case.

It is claimed that such an exception is made by Sec. 13 of Art. Ill, which declares that “ the concurrence of a majority ■ of all the members elected in the City Council shall be necessary to the passage of any ordinance.”

To give this provision the effect of an exception it must be held that the Mayor is not a member elected in the City Council ” for such a purpose in such a case, and to establish that proposition reference is made to other sections and phrases in the act which seem to distinguish between legislative and executive functions, and between the Mayor and the City Council, and to use the terms “ Aldermen” and “ City Council ” interchangeably.

There can he no doubt that upon some subjects and questions the Aldernjen only are entitled to vote in any contingency, nor that in general they only are to determine the action of the City Council as such, whenever the requisite number can concur to do it; nor is it claimed that the Mayor is an Aider-man. He does not possess some powers given to them and does possess some not given to them. But how does it follow from all this that he can not be, for any purpose or in any contingency, “a member elected in the City Council?”

The position here taken by appellees is that he could not lawfully give the casting"vote in question, not for the reason that although a member of the Council he was forbidden to vote in this particular case, but because only “ members elected in the City Council ” could lawfully vote upon it in any contingency, and he was not such a member.

Does not this argument prove too much? Is not the action of the City Council, as such, to be determined in all cases by the votes of its members only? And yet it is conceded that the Mayor may give the casting vote, in case of a tie, upon all questions before the Council except those specified in Sec. 13 of Art. Ill, which are “ upon the passage of all ordinances, and on all propositions to create any liability against the city, or for the expenditure or appropriation of its money.” The only reason suggested for making them exceptions is, that the vote upon them is absolutely required by the act to be taken by yeas and nays,' and not upon any others unless at the request of a member. But this evidently is mainly for the purpose of making it appear whether the required majority of “ all the members elected ” do or do not concur, the emphasis being upon “ all ” and not upon “ the members elected in the City Council.”

"We see nothing in that section to indicate that the right to vote is given more exclusively to members in these cases than in others. In those, the majority whose concurrence is required, may be a majority of a bare quorum — yet it must be a quorum of “the members elected in the City Council”- — and if the Mayor’s vote can break the tie and make a legal majority in one case, it must for the same reasons have the same power in the othpr.

The question of his membership has the same bearing upon each. If he may give the -casting vote in either, it must follow either that he is a-“member elected in the City Council,’’ for that purpose in that contingency, or that the action of the Council as such is determined by the vote of a person who is not a member of it; and if the latter, which would be anomalous, it must be by virtue of the power expressly given, and without regard to membership by the section above quoted, and which in its terms makes no distinction between a tie in the one case and a tie in»the other.

As already observed, it is not claimed that the Mayor is an Alderman, but it is not perceived that he need be in order to be a member of the Council. It is true that he can not vote in any contingency upon a proposition to sell city or school property, or upon a reconsideration after" a veto, or to expel a member, and perhaps in some other questions, but it is also true that under the express provision of the law there cannot be a tie in these cases. Art. Ill, Secs. 7, 13 and 19. The right claimed for him in this regard is limited to giving the casting vote in case of a tie. If it requires membership, then membership for that purpose and to that extent is claimed.

The arguments against it from the provisions above referred to and from others in which “Aldermen” and “ City Council” are used interchangeably, but only incidentally and loosely so, are quite inconclusive, if indeed, they really touch the question at all; and to our minds are refuted by the clear and deliberate declaration of the statute, that “ the City Council shall consist of the Mayor and Aldermen.” Art. Ill, Sec. 1.

.No such language is to be found in the Constitution respecting the Lieutenant-Governor and Senators, and therefore the supposed analogy fails. This section simply places the Mayor and Aldermen in the same category as composing the City Council. "If they are members of it, he is also; and his election in it or to it, though by a different constituency, is with a view to this fact.

For their respective functions in it we must look to others. Among those of the Mayor is that of giving the casting vote, in case of a tie, at all its’ meetings. It is not made to depend upon the nature of the question, but solely upon the fact of a tie. Both his membership and the substantial character of this function of it are recognized by the Supreme Court in Winter v. Thistlewood, 101 Ill. 450, where it is said that “ except- in a case of a tie in the votes of the Aldermen, when he is required to give the casting vote, his duties as a member of the Council are more formal than substantial.”

We are of opinion that the casting vote in this case rvas lawfully given. The judgment of the Circuit Court is therefore reversed and the cause remanded for further proceedings in conformity herewith.

Reversed and remanded.


source: Caselaw Access Project

author: Pleasants, J.

license: Public Domain

text:
    Reuben C. Bradley and James H. Short v. The People of the State of Illinois.
    Scire Facias on Recognizance — Pleading and Practice — Variance—Surplusage.

    1. Upon a scire facias on recognizance it is held: That additional pleas setting up matters admissible under the plea of mil tiel record, or if not so admissible, fatal as admissions of the judgment without avoiding it, were properly overruled on demurrer; that an order striking one of two indictments for the same offense from the docket was not equivalent to a discontinuance of the other, and did not release the obligors; that there is no variance, although the recognizance was not “.sealed,” and although the judgment of forfeiture contained surplusage; and that the judgment, although not in the best form, awarded execution against the defendants severally.
    2. A variance not specifically pointed out on the trial can not avail on' appeal.
    [Opinion filed May 21, 1887.]
    Appeal from the Circuit Court of Greene County; the Hon. Lyman Lacey, Judge, presiding.
    Mr. James R. Ward, for appellants.

      The writ of scire facias, on a recognizance, stands in the place of both the summons and declaration in the case, and like the declaration in any other case, should contain every material allegation necessary to a recovery. Thomas v. People, 13 Ill. 696; Lawrence v. People, 17 Ill. 172; Farris v. People, 58 Ill. 26.
    There is a variance between the recognizance set out in the scire facias and the one read in evidence, which, under the plea nül ii'el record, is a fatal objection to the judgment in this case. McFadden v. Fortier, 20 Ill. 509; Reese v. People, 11 Ill. App. 346; Chilton v. People, 66 Ill. 501; Matthews v. Storms, 72 Ill. 316; Smith v. Frazier, 61 Ill.164.
    The records in evidence show that on September 5, 1884, the fourth day of the term, the court,, on the State’s Attorney’s motion, by an order entered of record, struck this cause from the docket two days after the indictment was returned, without making any entry reserving jurisdiction of the person of the accused. The recognizers were entitled to reasonable notice after this event before they could be adjudged in default. McKee v. Ludwig, 30 Ill. 28; Mattoon v. Hinckley, 33 Ill. 208; Kilian v. Clark, 9 Ill. App. 426.
    The court awarded execution for the amount of the recog. nizance and the costs, jointly against appellants; this was error, and the mere provision that the execution was to be satisfied by the payment of the same by either of the defendants did not obviate the error. Briggs v. People, 13 Ill. App. 172.
    Mr. D. F. King, for appellees.
    It was sufficient to state the recognizance according to its operation and legal effect. Lawrence v. People, 17 Ill. 172; Curry v. People, 54 Ill. 263.
    The legal effect of any recognizance is the same whether under seal or not, as no seal is required. Slaten v. People, 21 Ill. 28; R. S. 1874, Chap. 38, p. 396, Sec. 295.
    It is not necessary for judgment to. mention that it was joint and several. See approved form. People v. Witt, 19 Ill. 169.
    Strict formality in a judgment of forfeiture is not required. Weese v. People, 19 Ill. 643.

      If the defendants were not injured hy the form of the judgment of forfeiture, they have not right to complain. Weese v. People, 19 Ill. 643.
    The court awarded execution severally, and the object is to have execution according to the form, force and effect of the recognizance. Sans v. People, 3 Gilm. 327; Chumasero v. People, 18 Ill. 405.
   Pleasants, J.

This was a scire facias against "Joseph Bradley as principal and appellants as sureties on a recognizance taken August 9, 1884, by a Justice of the Peace, in the sum of one thousand dollars, and conditioned for the appearance of said principal at the September term next following of the Circuit Court of Greene County, to answer to an indictment for rape.

It recited that said cognizors “ in writing by them duly signed and sealed, severally acknowledged themselves to owe,” etc.; that the same was by said justice approved and filed in the office of the clerk of said Circuit Court; that on the third day of September, 1884, at the term aforesaid, an indictment was returned against said principal for said crime, and that afterward at the same term the defendants were severally called and ’ defaulted, “ whereupon it was considered and adjudged by the said court that the said recognizance be taken for and declared forfeited, and that a scire facias issue,” etc.

Appellants filed, among others not necessary to be noticed, three pleas, in substance respectively as follows :

1. That there is not any record of said supposed forfeiture.
2. That they produced the body of their principal in open court at said term on the first and subsequent days thereof, and before any forfeiture was declared, and were, by the order of said court, released from further performance of the conditions of said recognizance.
3. That said principal personally appeared in said court on the first day of said term, and from day to day thereof; that on the fifth day of September, in said term, the said court, in a certain cause then pending, in which said recognizance was filed and a part of the records thereof, and being the same to which he was thereby bound to appear, made an order of record that this cause be and the same is now stricken from the docket, and the defendant is thereby discharged henceforth and permitted to go without day,” and that-said cause was so off the docket when the supposed forfeiture was declared.

Of these the second and third were held bad on demurrer, and the issue joined on the first was tried by the court without a jury and found for the plaintiffs, whereupon, after default taken against Said Joseph Bradley, judgment of execution was entered against all the defendants.

Appellants claim there was error in sustaining the demurrers to said second and third pleas.

To maintain the issue on the first it was incumbent upon plaintiffs to show a judgment of forfeiture in full force, and therefore competent for defendants to rebut it by producing a record of any other proceeding which made it void when entered or .inoperative afterward. If such was not the legal effect of the order referred to in these pleas, they were bad for that reason, because they admitted the judgment; if it was, they were useless, because it was just as admissible and effectual under that of nul Uel record. And it was in fact so treated. The error, therefore, if any, did not prejudice,the defendants and is no ground for reversal. Addems v. Suver, 89 Ill. 482; Cooke v. Preble, 80 Ill. 381.

But there was no error here. In the Circuit Court, at its September term, 1884, there was but one case of the People against Joseph Bradley for rape. The docket, however, indicated two, numbered, respectively, 59 and 62. The entry of the first was made upon the filing of the recognizance and accompanying papers by the justice, August 9th; of the other, upon the return of the indictment, September 3d. One of them was manifestly superfluous, since all the papers so filed pertained to the same case, and since that was the case upon the indictment which was docketed as No. 62, and no action was to be taken in No. 59 separately, it was by the court, on the 5th, simply and properly therein “ ordered that this canse be stricken from the docket.”

Counsel now insists that this order, being presumably made with the approval of the State’s Attorney, “ was equivalent to a discontinuance” of the cause upon the indictment, but that he well knew, at the time, it was not so intended by the court or the State’s Attorney, nor so understood by anybody concerned, is clear from the record, which shows that on the 10th, five days after its entry, he entered a motion in Ho. 62 on behalf of the defendant for a continuance. Whether as a consequence of the afterthought now urged or not, this motion was withdrawn on the 11th, on which day the defendant failed to appear and the recognizance was therefore declared forfeited.

The court below having judicial knowledge of these facts from the records and proceedings in this case, made and had before these pleas were filed, rightly held as matter of law that this order therein referred to did not release the defendants.

On the trial of the issue joined, they objected to the recognizance offered, which was not in faet“sealed” as alleged “for the reasons that it was several and variant, and did not sustain the allegations,” and its admission over such objection is assigned for error. There was no plea traversing the alleged record of the recognizance; it was in fact several as averred. The scirefacias purported to set it out only according to its legal effect, and this was not varied by the want of a seal for none was required. R. S. 1874, Crim. Code, Sec. 295. And if the averment was matter of essential description, the variance in question could not avail appellants here because it was not specifically pointed out on the trial. In St. Clair Co. Ben. Soc. v. Fietsam, 97 Ill. 480, the rule and the reason for it are thus declared : “ It is a sufficient answer to say, no variance between the proof and the declaration in this respect was called to the attention of the court when the instrument sued on was offered in evidence. A general objection was taken — there was a variance. That is not sufficient. The party objecting should have pointed out wherein the variance existed. Had that been done, under our Practice Act an amendment could ■ have been instantly made that would have obviated the objcetion, so that the trial could have proceeded on such terms as the court might have seen fit to impose.”

It is also claimed there is a fatal variance between the recognizance and the judgment of forfeiture.

The record introduced, after showing that the principal and sureties were severally called and defaulted, proceeds as follows : “ Thereupon it is consideredby the court, that the recognizance of the said Joseph Bradley, principal, and Reuben C. Bradley and James H. Short, his sureties, herein heretofore taken, and by them jointly and severally entered into, and for which they were jointly and severally bound, be taken, held and declared as forfeited. Therefore it is considered by the court now here, that the People of the State of Illinois have" and recover of the said Joseph Bradley, principal, and Reuben G. Bradley and James H. Short, his sureties in the recognizance herein, the sum of one thousand dollars, the amount of the said recognizance as aforesaid. And it is further ordered by the court that a writ of scire facias issue herein,” etc.

We have seen that the recognizance was not joint and several, but several only, as was averred in the scire facias. Also that the judgment was therein set out as a simple judgment of forfeiture, “ that the said- recognizance be taken for and declared forfeited.” There is no variance, then, between the allegation and the proof as to the judgment. It is certainly a judgment of forfeiture, and the recognizance adjudged forfeited is identified by the several particulars stated', and beyond doubt by its designation as “ the recognizance herein.” This was enough to entitle the people to final judgment in this suit for execution, according to the actual form, force and effect of the recognizance. The People v. Witt, 19 Ill. 171.

What if the court did go further and erroneously characterize it as joint and several? That was in excess of what the statute or good practice required. Landis v. The People, 39 Ill. 79 ; Weese v. The People, 19 Ill. 643; Passfield v. The People, 3 Grilm. 406; Briggs v. The People, 13 Ill. App. 172. It was corrected by the recognizance itself, which was by reference made a part of the judgment. Where a declaration on an appeal bond wrongly described it as payable on demand, but a fur they description showed it payable on affirmance of the judgment appealed from, the Supreme Court said : .“We think there was no substantial variance. The mere statement that the obligation was payable on demand was clearly inconsistent with the full description of it in the declaration, and might well be disregarded as surplusage.” Walker v. Welch, 14 Ill. 277; see also Benedict v. Dillehunt, 3 Scam. 287. In this case all that followed the declaration of forfeiture might well be so regarded. It did the defendants no harm, and the whole was “ in effect,” as was held in a like case, “ only a judgment of forfeiture.” Weese v. The People, 19 Ill. 647-8.

. Lastly, it is said that the final judgment awarded execution against the defendants jointly. It appears from the bill of exceptions that the court “ ordered executions severally against the defendants, for the plaintiffs, for the amount of said recognizance and the costs.” As entered up by the clerk the judgment is that the People of the State of Illinois have execution against Joseph Bradley, principal, for the sum of one thousand dollars, the penalty in the said recognizance mentioned, and against James H. Short and Beuben C. Bradley, sureties in the said recognizance, for the sum of one thousand dollars each, together with the costs in this behalf expended; said executions to be satisfied by the payment by either or any of the said defendants, of the sum of one thousand dollars aforesaid.”

Although as a form for such a case this might be improved, we think it awarded execution severally, according to the form, force and effect of the recognizance.

Perceiving no error in the record, the judgment of the Circuit Court will be affirmed.

'Judgment affirmed.


text:
    Jacob D. Herkimer v. Nora Shea.

      Injury to Personal Effects of Servant — Excessive Damages — Abusive-Language of Counsel Condemned.

    1. In an action by a servant girl, to recover damages for an injury to her personal effects, resulting from the placing of them in the street by the defendant, whose services she had left under circumstances of great provocation, it is held that a verdict for thirteen times their value is excessive.
    2. This, court strongly condemns the conduct of counsel for plaintiff in the trial court, in the use of extremely abusive language in spealdng of the defendant, much of such language referring to irrelevant matters.
    [Opinion filed May 21, 1886.]
    Appeal from the County Court of Coles County; the Hon. Charles Bennett, Judge, presiding.
    Messrs. Craig & Craig, for appellant
    Mr. I. McGrath, for appellee.
   Pleasants, J.

This suit was commenced before a Justice of the Peace by appellee against appellant for injury to her trunk and hat, which together and including two plumes, cost, when new, §16.40. On the trial in the County Court, upon appeal, she got a verdict and judgment for §200.

It appears that being at service in defendant’s family at Mattoon, in the afternoon, at the close of the first week, she and the other hired girl changed their dresses, and went to the room of his wife, to whom plaintiff abruptly said, “Please, we want our wages; we wish to quit.”

To be left, as she was — in delicate health, with a large house, entirely without help, by a concerted movement aud without a moment’s notice — was certainly somewhat provoking.

Mrs. Herkimer called her husband, who, on being' made acquainted with the situation, after ordering them to go to the kitchen, inquired of plaintiff the amount of her wages, and on being answered “ four dollars,” said she was a liar and asked his wife. She in turn asked plaintiff, “when did you come?” and the reply was she “ didn’t know the hour nor the minute,” which seemed to strike him — not without reason — as impertinent, and he said angrily, “Answer my wife, answer my wife,” snapping his fingers in her face and threatening to slap her. After some further words about a broken dish plate, in which he called both the girls liars and cursed them, he paid them their wages and told them to get out of the' house or he would kick them out.

It then occurred to plaintiff, that though she had dressed to leave, herself, she had not arranged for the removal of her things, and so was under a necessity to ask a favor where she had shown no disposition to grant any. If he had discharged her without warning, she would have been entitled to a reasonable time in which to remove them. But having left of her own will, against his, and without giving him notice or opportunity to supply her place, she had no just claim upon his indulgence. When she spoke to him about leaving them until she could send for them, his answer again was: “ Get out of my house or I’ll kick you out,” which could hardly be construed as consent, express or iriiplied. The instruction given to the jury on that theory was without foundation in the evidence.

Nor would the law allow anything for their convenience in that behalf. Having determined to go herself, in the manner stated, she should have been prepared to take them with her. She was not so prepared and did not take them. He would therefore have been justified in removing them himself, without delay, being liable of course, if lie undertook to do so, to make compensation for any injury to them through gross carelessness in handling or exposing them, and for malice or wantonness in inflicting it — to punitive damages besides.

He waited, however, until some time in the forenoon of the next day, when he and his son carried them without damage into the yard, and on returning from his farm in the evening, and finding them still there, he set them in the street just off the sidewalk and close to the hitching post. The only wit-' ness who testified to this, except the defendant himself, says she “ saw him take the trunk out of the yard. He had hold of one end of it, and dragged it out into the highway with one end on the ground. He threw down the end that he had up in a very savage manner. He pitched the bandbox out onto the trunk and it fell off. He went and got it and set it on the trunk and put out some other things that were in a sack.” The witness informed a neighbor, who soon after took them to his house, where it was found the trunk was considerably broken, the lid of the bandbox off and the hat so crushed as to be of little if any value. Plaintiff testifies she left them all in good condition. When or how the damage was done, further than as above stated, was not shown.

This was the case for the plaintiff in all its extent. The injury sued for was to her property only, measurable in money and not exceeding 815, committed by a man of quick and ill-governed temper, already heated by her leaving his service as she did, and then suddenly inflamed by the sight of her things still on his premises. She and her advisers seem to have thought it could be fully redressed by a Justice of the Peace, and it is really straining to make a great matter of it. Had it been properly presented upon its merits alone, we should have hesitated to sustain the verdict.

But it was not. In his opening statement her attorney told the jury, “Old Jake Herkimer was rich, and meaner than he was rich; that he would get poor people to work for him, and never pay them; that the court dockets were loaded down with suits against him by poor people for the damnable outrages he had perpetrated,” and in the closing argument, that “he was a robber, that he was no gentleman, that he was a rich man, and the meanest man in Coles County;” and even when admonished by the court, that “he would not take back anything he had said.”

It is true appellant, when on the witness stand, used some very reprehensible language — but it was all in his cross-examination — to counsel who had thus characterized him, and who has called our attention to it by an additional abstract, which; however, omits -what was the beginning if not the cause of the discreditable exhibition. The record shows that after he had stated how he carried the trunk out the subject was pursued as follows: “Q. You let it down carefully? A. Yes. Q. Gently? A. Yes. Q. Were you afraid of breaking the paving stones ? ”

In the argument filed here counsel “ admit that Herkimer was denounced in no mild terms,” and say they “were but poorly able to command such language as was required by the exigencies of the ease.”

We are in much the same condition with reference to the manner of trying any case in a court of justice; but would be understood to condemn it in terms as strong- as the proprieties of the bench would allow. Hennies v. Vogel, 87 Ill. 242; Fox v. People, 95 Ill. 71; Dufiin v. People, 107 Ill. 113; City of Elgin v. Eaton, 2 Ill. App. 93.

From the verdict here rendered it may be presumed it was effective. Assuming that something could be properly awards ed by way of punishment to the defendant for his conduct in this case, but nothing for loading down dockets, outrages upon the poor in general, or other irrelevant meanness, we think thirteen times the value of the property injured, reaching the limit of the jurisdiction, was clearly excessive, and must have been due, in part, at least, to prejudice and passion, which these means were so well adapted to arouse.

The judgment will therefore be reversed and the cause remanded.

Reversed and rema/nded. ■


text:
    James DeLand et al. v. William Metzger.

      Foreclosure of Mortgage — Note by Guardian Payable to his Successor-1Failure of Consideration — Delivery in Escrow.

    Upon a bill filed to foreclose a mortgage, given to secure a note made by the guardian of a minor and payable to his successor on a promise by the latter to credit the guardianship account of the maker, and to procure an order from the County Court to that effect, it is held: That an answer setting up said promise, a failure of performance, and the pendency of a suit against the maker for the entire balance of said guardianship account, was pertinent; that the promise of the payee did not bind him personally or as guardian, and that the note was either without consideration, or was given upon a consideration which has wholly failed.
    [Opinion filed May 25, 1886.]
    Appeal from the Circuit Court of DeWitt County; the Hon. Cybus Epler, Judge, presiding.
    Messrs. Moore & Warner, for appellants.
    The want or failure of consideration is a good defense to an action to foreclose a mortgage. Weaver v. Wilson, 48 Ill. 125; Wears v. Pierce, 24 Pick. 141; Hannah v. Hannah, 123 Mass. 441; Jones on Mortgages, Secs. 610, 612, 1297 and 1490, and cases cited.
    A guardian can only compound a claim with the approbation of the Probate Court. Ch. 64, Sec. 17, R. S.; Sperry v. Fanning, 80 Ill. 371; McIntyre v. People, 103 Ill. 142.
    Mr. Richard A. Lemon, for appellee.
   Pleasants, J.

This was a bill filed by appellee against appellants and others to foreclose a mortgage executed May 29, 1883, by James DeLand and Mary, his wife, to secure a note of said James, of the same date, for $4,492.79, payable to “William Metzger, guardian of F. H. Magill,” or order, on or before two years from date, with interest at six per cent. Appellant Emma L. Magill was a junior mortgagee.

Appellants filed a joint and several answer, averring that on the 28th of May, 1883, complainant was by the County Court of De Witt County appointed guardian of Frederick A. Ma_ gill, to succeed respondent, James DeLand, who khad been his guardian for many years, and as such was then indebted to his said ward for money received in excess of what he had paid out in about the sum of $16,000; that being unable to pay the same or any part thereof to his successor, .the latter “promised the defendants, James DeLand and Mary DeLand, that if the defendant, James DeLand, would turn over to him, the complainant, a large amount of notes and mortgages then owned and held by the defendant, James DeLand, of the value of about four thousand dollars, and make and deliver to the complainant the note in-said bill described, and the-defendant James DeLand, and Mary DeLand, his wife, would make, execute and deliver to the complainant the mortgage mentioned in said bill, the defendant Mary DeLand, releasing her homestead and dower interests in and by said mortgage to the lands therein described, he, the complainant, would receive and accept such notes and mortgages and the note and mortgage in said bill mentioned, at their face value, principal and interest, to wit: $8,992.79, as so much cash, credit the defendant James DeLand therewith on account of his said guardianship, and procure an order of said County Court to that effect, and that in consideration thereof, and for no other consideration whatever.” the notes and mortgages first mentioned were delivered and the note and mortgage in said bill described were executed to said complainant.

It then avers that complainant has not so credited said James DeLand with said amount, or any other amount, nor procured an allowance of the same by said County Court, but ■ to the contrary thereof obtained an order of said court upon said defendant to pay over the whole of said sum of $16,000 to complainant, and also brought a suit in the Circuit Court for said county against said defendant and his sureties on his guardian’s bond for the whole of said sum and interest thereon from the date of said order of payment, which suit is still pending; that he refuses to allow said defendant and his sureties any credit in said suit on account of said notes and mortgages, which he still holds and retains, as it alleges he procured them, for the purpose of defrauding respondents and each of them.

To all of this matter, exception for impertinence was sustained, and respondents, declining to make further answer pursuant to the rule entered thereon, w-ere defaulted, and the bill taken pro confesso, on which, and the master’s report of proofs and computation of the amount due, the court entered a final decree of foreclosure and sale in the usual form. The respondents appealed.

Since everything in the answer, aside from a general denial of the indebtedness to complainant as alleged, and of his right to the relief sought, which are conclusions only, was embraced in the exception, we see no irregularity in requiring a further answer, and taking the bill as confessed for want of it. Braetically, the case was disposed of on bill and answer, and the question now is whether the answer was pertinent and sufficient, which depends upon the construction of the agreement therein set forth.

DeLand was bound to pay over the balance chargeable against him in money. R. S. Ch. 64, Sec. 157. Appellee, as guardian in succession, was not merely unauthorized, but substantially forbidden to accept anything in lieu of it without the approbation of the County Court. R. S. Ch. 64, Sec. 17.

A promise to do so would therefore have been void or at least ineffectual. That both the parties knew this, is evident ¡from he further promise to obtain a proper order of said court therefor. They must also have known, for it amounts to the same ihing, that he could no more bind himself as guardian — that is, his ward’s estate — to obtain such an order, than to accept the securities at their face value without it.

It can not then be supposed that an absolute promise to that effect was intended or understood to be made by him as guardian or otherwise, for there is nothing in the answer to indicate that he said or did anything in the premises otherwise than as guardian, and the statement of his promise is to he construed in that view. While in some cases an absolute agreement so made, but which cOuld not be so enforced from mere want of authority to make it, might bind him personally, the point here is that in this case he did not make such an agreement as guardian, and the inference from that, and the further fact that he acted throughout only as guardian, is that he did not make it at all.

It is to be considered also that there was no consideration of personal advantage to him for such a promise, and that in the nature of the case performance was not certainly possible by any means he could use. It would have been unreasonable to take the risk of damages for a failure without fault, unless for some corresponding benefit in the event of success, and even then, in a case like this, it would have been but little better than a gambling transaction.

So that although the terms employed to state it in the answer may of themselves import an absolute promise, for the reasons above given, and in the light of the circumstances set forth, we incline to think it was really only conditional in substance; that if appellee should not obtain the order of approval mentioned, the note and mortgage in question should be of no effect. That would have been lawful and reasonable, and substantially such as is alleged.

But if this be not a sound construction, we are clearly of opinion that the immediate and moving consideration for the execution of the note and mortgage was the credit to be actually and effectually given upon DeLand’s indebtedness as guardian, and not appellee’s promise in respect to it.

In either view the answer was pertinent. If the mortgage may not be regarded in equity as having been delivered in escrow to appellee in his individual capacity, for him as guardian, upon performance of the condition, it was upon a consideration which has wholly failed.

The decree is therefore reversed and the cause remanded for further proceedings in conformity with this opinion.

Reversed and remanded.


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    City of Springfield v. Benjamin M. Griffith.

      Municipal Corporations — Change of Street Grade — Damage to Lot— Damnum Absque Injuria — Variance between Declaration and- Proof

    1. In an action to recover damages alleged to have resulted from the raising of the street grade in front of plaintiff’s lot, it is held: That the expense of filling up the lot to make it conform to the new street level can not be recovered as damages; that there can be no recovery for obstructing the flow of surface water from said lot, because damages therefor were not claimed in the declaration; and that there should have been no allowance for the appearance merely of the plaintiff’s house, unless caused by the elevationof the street as distinguished from the filling up of the lot.
    2. It seems that in such cases there can be no recovery for depreciation by effect upon appearance merely because of changes wholly external to the premises.
    [Opinion filed May 25, 1886.]
    Appeal from the Circuit Court of Sangamon County; the Hon. J. A. Creighton, Judge, presiding.
    Messrs. Greene, Burnett & Humphrey and Joseph M. Grout, for appellant.
    A city may lower or elevate the grades of its streets at its pleasure, when it is done in good faith, with a view to fit them for use as streets, to meet the public wants, and can not be made liable for the inconvenience and expenses of adjusting the adjacent property to the grade of the street as improved. Nevins v. Peoria, 41 Ill. 502; Shawneetown v. Mason, 82 Ill. 337; Eigney v. Chicago, 102 Ill. 64, reviewing authorities. The presumption is that those who purchase lots upon streets calculate the chances of such eleyating or lowering of the grade of the streets as the increase of population of the city may require, in order to make the passage to or from the several parts safe and convenient; and as their purchases are always voluntary, they may indemnify themselves in the price of the lots which they buy, or take the chance of future improvements, as they shall see fit. Shawneetown v. Mason, 82 Ill. 337; Callender v. Marsh, 1 Pickering, 418.
    Messrs. Patton & Hamilton, for appellee.
   Pleasants, J.

Case by appellee, for damages to his residence property on Sixth Street, in the City of Springfield, alleged to have been caused by raising the grade of said street in front of it.

The ways and particulars in which it is claimed to have been thereby done, are set forth in several counts, respectively as follows:

1. By destroying the easy and inviting access to and from said street and the plaintiff’s premises.
2. By putting him to expense for raising his lots to make them conform to the grades of said street so raised.
3. By putting him to expense for raising his lots to protect them from the overflow of water accumulating on said street so raised.
4. Same in substance as the third.
5. By causing the water accumulating on said street to flow upon said premises and into the dwelling house and' cellar thereof.
6. Generally, that defendant wrongfully /raised the grade of said street and thereby damaged and depreciated the value of said lots.

Appellee’s lot is on the east side of the street, fronting west, and sixty-five feet in width. His house, which is a story and a half high, and of brick, is eight or ten feet from the south line and fifteen from the north, and the porch is fourteen from the front fence. It was built on a ridge higher than the street and running diagonally southeast and northwest, the summit of which at the north line was ten or twelve feet from said fence and at the south about thirty-two; so that surface water falling on the lot west of the line between these points formerly flowed west over the sidewalk into the street. This flow was arrested at the sidewalk by the raising of the grade about eleven inches; and to prevent the consequent formation of a pond in his front yard and the flooding of his cellar he says he was compelled to fill up his lot on the front. He did fill it on the north part up to the surface of the raised sidewalk, which gave a fall of two and a half inches from the house to the street, but not so high on the south part, from which he carried the water by tile laid from his southwest corner back to a sewer in the alley.

This work, including the taking up and relaying of stone and brick walks, cost him $280. But this was only a choice of evils, for the filling itself necessarily lessened the value of the property in various ways, nearly stopping his ventilating windows, dampening the floor and walls, injuring the plaster, paper and paint, etc. The most serious effect, according to the evidence, is from the change of elevation. The porch, which was before fourteen inches above ground, is now only four or five, and the general appearance is squatty and unwholesome. He thinks the depreciation is from $2,500 to $3,000. Other witnesses corroborate him as to the particular facts, and substantially as to his estimate of the damages, the lowest being not less than $1,000, the amount found by the verdict, on which the court, after overruling a motion for a new trial, rendered judgment.

From the foregoing statement, which is in substance that of appellee himself, it appears that all his damage is in the cost of filling and tiling his lot, and the effect of it upon the market value of the premises.

Did the effect of the city’s action as averred compel or justify this filling, so as to make it legally liable for all this damage ?

It can not be claimed, upon the evidence, that the access to and from the street, as is averred in the first count of the declaration, or the easy and inviting character of it, as may have been intended, was destroyed by the raising of the street grade to the height of eleven inches! Its impairment was hardly sufficient to be of itself a cause of action; certainly not to compel or justify the filling of the lot as a remedy; nor was restoration of the lost conformity to grade as averred in the second count, for such conformity for its own sake, which is ail that is here averred, is purely a matter of taste and choice. This count therefore states only a voluntary expenditure for the gratification of fancy, which is not a cause of action.

The real, if hot the sole cause, is stated in the third, fourth, and fifth counts, which are substantially the same, namely: that the direct and necessary effect of raising the street grade was to cause the water, accumulating on the street, to flow as it had not been used to flow, to and upon the plaintiff’s premises, and that to protect them from such overflow he was compelled to fill and raise them as he did.

But this statement is not shown to be true, and is shown to be not true. Upon this point there is no conflict'of evidence. The street-curbing contained all the water that accumulated on the street, and the sidewalk -sloped from appellee’s fence to the curb. The water that troubled him was what fell wholly on his own premises. His case against the city, therefore, if any he has, is for obstructing and preventing its flow therefrom, by raising the street grade and neglecting to provide suitable culverts. But such is not the case stated, nor the damage claimed by the declaration. He was entitled to recover only for what was both claimed and proved. The first instruction for plaintiff allowed the jury too great latitude in this respect. We apprehend they awarded upon this evidence all they would have awarded upon proof that the filling was necessary to beep off the water from the street.

Hor are we satisfied with the allowance of damages for any effect upon the appearance, merely, of appellee’s building, except such as was caused by some change in the premises. How much was allowed for, squattiness, and how far that was due to the elevation of the street, apart from or in addition to the filling of the lot, is entirely uncertain; yet from the evidence it may be fairly presumed that some of this effect was so caused, and that this element of damage entered into the finding. Thus, the witness Knickerbocker was asked, “ What difference, if any, in the appearance of the house, was made by the change infilling up the steeet?” to which objection was made, but overruled, and he answered': • “ It looks squatty and low; lower even than the street. Anybody, to look at it, would naturally think the first floor was about even with the sidewalk. Before, it had a very good appearance — set up so.” He further said, “ I would not consider the house of any value after,the grade was raised;” and Mr. Cullom says, “It • lowered the house by comparison with the street.” The depreciation by effect, upon appearance merely, of changes wholly external to the premises, must be to a large extent matter of taste and fancy; but if it could be shown by reliable testimony, we think it would he damnum absque injuria, and this evidence was improperly admitted. Individuals owning adjoining lots would not be so restricted in respect to their improvement, and we see no reason why the city should be in respect to its streets.

On the whole, we are satisfied this verdict, as to a large portion of the damages found, is unsupported by competent evidence, and that the court erred in the particulars mentioned which contributed to the result. The judgment will therefore be reversed and the cause remanded.

Reversed and remanded.


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    Starne, Dresser & Company v. William Schlothane.

      Injury to Laborer in Coal Mine — Co-Servants—Contributory Negligence.

    1. The engineer of a coal mine, whose duty it is to lower and raise the cages used in the operation of the mine, and a common laborer, whose duty it is to prepare the bottom of the shaft to receive the cages, are co-servants; and the owners of the mine are not liable for damages resulting to the latter through the negligence of the former.
    2. In the case presented, upon a review of the facts, this court holds that a laborer so employed cannot recover for injuries sustained in the course of his employment, especially as he appears to have contributed to the negligence, if any, and although directed to continue at work by another servant of the owners.
    [Opinion filed May 25, 1886.]
    Appeal from the Circuit Court of Sangamon County; the Hon. J. A. Creighton, Judge, presiding.
    Messrs. Patton & Hamilton, for appellants.
    Wadsworth and appellee were fellow-servants, and appellants can not be held responsible for any act of either, affecting the safety of the other. C. & N. W. R. R. Co. v. Horanda, 93 Ill. 302; Same v. Same, 108 Ill. 576; C. & E. I. R. R. Co. v. Geary, 110 Ill. 383; Abend v. T. H. & I. R. R. Co., 111 Ill. 202.
    There are a number of earlier cases in which the Supreme Court has held that no recovery could be had, because the person injured and the one whose negligence caused the injury were fellow-servants.
    In Honner v. I. C. R. R. Co., 15 Ill. 500, the injury was caused by the negligence of co-servants in adjusting a turntable. In I. C. R. R. Co. v. Cox, 21 Ill. 23, the negligence of the conductor and engineer of a wood train caused the injury to a laborer on the train. The case of C. & A. R. R. Co. v. Keefe, 47 Ill. 108, is similar in its facts to the Cox case. In C. & A. R. R. Co. v. Murphy, 53 Ill. 336, a laborer was hurt through the negligence of the engineer of a switch-engine. In Gartland v. T., W. & W. R. R. Co., 67 Ill. 498, the injury was the result of the negligence of co-servants in moving cars. In St. L. & S. E. R. R. Co. v. Britz, 72 Ill. 256, the man injured was a shoveler employed on a construction train, who was hurt through the negligence of the engineer or brakeman. ' In I. C. R. R. Co. v. Keen, 72 Ill. 512, the plaintiff’s intestate, who was a brakeman on a water train, was killed by the explosion of the boiler of the engine drawing • the train, caused by the carelessness of the engineer. In T., W. & W. R. R. Co. v. Durkin, 76 Ill. 395, the death of plaintiff’s intestate, who was a laborer on a gravel train, was caused by the negligence of the engineer of the train. In C. & A. R. R. Co. v. Rush, 84 Ill. 571, the injured person was a brakeman, and the accident was, in part, the result of the carelessness of the engineer, who so suddenly started the train that Bush was thrown under it. In Valtez v. O. & M. R. R. Co., 85 Ill. 500, a car repairer at a station was injured by the negligence of the engineer of a switch engine.
    A master is not liable for an injury sustained by one of his employes through the negligence of the ¡foreman having charge and control of him and others, unless the foreman had power to discharge employes, or the master was negligent in employing him. Peterson v. Whitebreast Coal Co., 50 Iowa, 673; Keystone Bridge Co. v. Newberry, 96 Pa. St. 246; Lehigh Valley Coal Co. v. Jones, 5 Norris, 433; D. & H. Canal Co. v. Carroll, 8 Norris, 374.
    When the service undertaken is extra hazardous, and the employe having knowledge of its character, continues in it, he can not maintain an action for injuries received while in the performance of the labor. Or if he discovers that the service has become more hazardous than usual, or than he anticipated, the rule is, he must qujt the service or assume the extra risk to which he is exposed. The master is under no obligation to take more care of the servant than the servant is willing to observe for his own personal safety. L, B. & W. R. R. Co. v. Flanigan, 77 Ill. 365; Pennsylvania Co. v. Lynch, 90 Ill. 333; Missouri Furnace Co. v. Abend, 107 Ill. 44; Simmons v. C. & T. R. R. Co., 110 Ill. 340; Abend v. T. H. & I. R. R. Co., 111 Ill. 202.
    Messrs. McClernand & Keys and N. M. Broadwell, for appellee.
    The law holds appellants to the exercise of the highest degree of care and caution. But they were grossly negligent.
    They permitted the cages to be lowered and hoisted without signal or warning of any kind. At the bottom of the shaft, where every few minutes one of the cages would land, there was no railing or other structure to protect the man from injury by the cage, who might come to the bottom of the shaft.

      It was negligence on the part of the appellants to require the service of appellee of dipping the water from the pump when the cages were in operation. It was their duty to provide such means and appliances as-would reasonably insure the employe against injury while engaged in his work. There was an easier and safer way of removing the water from the sump than by having the appellee dip the water therefrom, and that was by lifting the same by a pump.
    Appellee was hurt because the cage suddenly and rapidly descended upon him without warning or signal of any kind; because the appellants required the particular service of appellee when the cages were in operation; because appellants did not provide proper means and appliances to protect appellee from injury while engaged in his work ; because the pump was out of repair and not working, and because appellants negligently permitted the steam to escape into the shaft at the bottom thereof, so as to prevent appellee from either seeing or hearing the approach of the cage.
    Appellee and Wadsworth did not co-operate in the performance of their duties. The dipping of the water by appellee had no possible connection with Wadsworth ■ acting as superintendent or trackman.
    Where a person in the employ of another is commanded by a fellow-servant, but to whom he is so subordinate that he is compelled to obey his direction, to do an act in the same general service and extra hazardous in its character, and in doing the same the servant so directed receives injuries, occasioned by the negligence of another servant employed in the particular line of service in which the act was being done, the common employer will be liable to the servant so injured. Lalor v. C., B. & Q. R. R. Co., 52 Ill. 401.
   Pleasants, J.

The declaration in this case sets forth that defendants, the appellants, owned a coal mine more than 200 feet below the surface of the earth, and operated the same through a shaft with heavy cages lowered and hoisted by steam power, and that plaintiff was employed at common labor about the bottom of said shaft. Four of the counts, alike in substance, aver it was their duty so to manage said machinery and appliances, and let down said cages so slowly and cautiously as to prevent harm and injury to the plaintiff while engaged at such labor, and to give him warning of their descent, that he might move out of their way before they should reach him; and a fifth, that it was their duty to keep the shaftway clear of steam or other matter that would obstruct his vision, and prevent his seeing them; but that on the 20th of January, 1882, they let down a cage while the shaft was filled with steam, without warning him, and so swiftly and incautiously that while performing labor as aforesaid, with due care and caution, he was unable to see it descending or to escape from it, and was caught under it and thereby badly crushed and injured.

The trial resulted in a verdict for the1 plaintiff for $500 damages, which the court refused to set aside, and upon the entry of judgment thereon the defendants appealed.

It appears that the shaft was about 250 feet deep. Two cages lowered and hoisted by steam power from an engine thirty-five feet distant from it, were used to carry u'p and down men, coal, and whatever else went to or came from the mine. They were operated by a rope over pulleys, and as one came up the other went down. They were lowered even with the bottom of the pit so that the coal trucks could be pushed directly on and off them, and rested on timbers over a sump or sink in which water constantly accumulated. So much of this as was needed for the purpose, was bailed into barrels and supplied drink for the mules, of which there were fifteen being worked in the mine, and the rest was pumped out by steam power when the pipe was in order, and when not, was also bailed by hand with buckets into barrels, and hauled out of the way. It was necessary to do this in order to get the cars on and off the cage, to and from the tracks. If it overflowed, it would be difficult to let down or raise the cage or adjust it to the tracks. At the time of the accident the pipe was out of order so that the pump could not be used.

Among those employed below was a eager, Cooper, who had charge of the cages at the bottom — pushed the loaded cars on and the empties off. He had communication with the engineer above by means of a wire attached to a bell in the engine house, and indicated to him by the number of bells when to lower, when to hoist, when to lower slowly, and when to let the cage stand. The engineer was not to move a cage without his signal. This, however, was an arrangement between them alone. Hor was it observed except when they were raising coal. Before doing that, of course, the men who worked below, including the eager himself, had to be let down, and this was done without warning to those already down, except at times, by hallooing from the landing at the surface or from the cage as it descended.

But no signal was required to be given, nor was any system used to warn persons at the bottom, of its approach. They depended on seeing or hearing it. Ho coal was raised in the morning before the accident in question occurred, which was between eight and ten o’clock. They had been repairing the boiler and were late in getting up steam.

There was also a roadman, Wadsworth, whose special duty it was to lay and take care of the tracks in the mine and the pit cars, and to timber and to wall under the driveway — in general, to see to the facilities for getting the coal from the rooms to the bottom of the shaft. But in the absence of Hahn, who was superintendent and immediate director of the work and men above and below, he took some general charge, in fact, of the work and men in the pit. He did not hire nor discharge anybody and had no authority whatever.

He was sometimes called the pit boss by some of the men, but there was no pit boss, because Hahn was generally within call, and all the men were alike subject, immediately, to his orders. Wadsworth never had anything to do with signaling the engineer.

Appellee was employed to take care of the mules and as a common laborer to help anybody in anything he could do, as he should be called on. It was a part of his duty to bail out the sump when necessary, though others sometimes did it without him and at others assisted him in doing it. On the morning of the accident he was so ' engaged for about two hours before they got up steam. He says as soon as they did get it up, they turned it into the shaft for ventilation as he supposed, though he had never known it to be done before. He continued at this work a little while after, and until the north cage, which had been resting on the bottom, was pulled up, when he left. Wadsworth coming up, asked why he had stopped dipping. He replied because they had just taken that cage away. Wadsworth then said, “You needn’t be afraid they will let the cage on you, I want you to hurry up and get that water out,” and passed on. Appellee waited a few minutes and then, everything appearing quiet in the shaft, resumed the work and continued at it some ten or fifteen minutes, when the south cage came down upon and crushed him.

Just at that time the shaft was so full of steam he could not see it coming, and the hissing was so loud he could not hear it. Ho signal had been given. The eager, who was assisting him by taking the buckets as he handed them up an'd emptying them into the barrel, saw it just before it struck him, and rang the bell several times and then hallooed, but the lowering was not stopped nor was the cage lifted off him by the engine. The men pried it off and took him out.

It does not appear that either of the appellants was about the premises that morning, or that Hahn, though present above, directly or indirectly gave an order to appellee about dipping, or to the engineer about letting steam into the shaft, or lowering the cage. Hor did Wadsworth, further than has been stated. Camp, the engineer then in charge, died before the commencement of the suit.

The foregoing is believed to be a full and fair statement of, appellants’ case upon the evidence. There is no controversy as to these facts, excepting the authority of Wadsworth over him. He and some other witnesses say he was under his direction as pit boss. Wadsworth and others deny it.

On the whole we think he was no more under Wads-worth’s direction than of any other employe whom he assisted for the time being.

But however that may be, we are of opinion the verdict was against the law. Upon the facts shown, including the assumption of "Wadsworth’s authority, appellants are not liable for the injury. The only acts of negligence charged are the manner of letting down the cage and the letting of steam into the shaft These were acts of the engineer, without special direction from appellants, and he was a fellow-servant of appellee. The employment of the one was to prepare the bottom of the shaft to receive the cage, and of the other to lower the cage upon the bottom so prepared. They habitually co-operated to the same particular end.

hi or is it clear that the engineer was in fault. It was not incumbent upon him at his engine to give the men below any special warning of the descent of the cage. The ascent of the other was notice of its imminence, and its descent could be seen or heárd by ordinary care to observe, which was the duty of those working where they were liable to be injured by it. If the steam in the shaft was unusual and hindered, it was there for a proper and important purpose, according to appellee. It gave ample notice of its presence. Its effect upon the senses of sight and hearing were clearly apparent, and imposed a greater degree of watchfulness on the part of those who were exposed, to avoid injury. What duty, then, did the engineer disregard ?

Appellee saw the danger and spoke of it. For that reason he quit the work and-did not immediately obey the direction to resume it. He knew that Wadsworth’s expression was but an opinion, that he had nothing to do with ' signaling the engineer, and that the eager, his assistant at the time, could signal him; and with this knowledge he voluntarily took the risk, which yet involved no negligence of the engineer.

His right to recover is not put upon the ground of Wads-worth’s statement and direction. That is expressly disclaimed in the argument. If it were and Wadsworth had authority to direct him, he did not direct him to do anything out of the line of his employment, and therefore the case of Lalor v. C., B. & Q. R. R. Co., 52 Ill. 401, is not in point.

For these reasons the verdict ought to have been set aside, and for the error in refusing to do it the judgment will be reversed and the cause remanded.

Reversed and remanded.


author: Conger, J.

text:
    Thomas Knox, Sr., v. Louis Oswald.

      Mortgages — Crop Raised after Foreclosure and Sale — Rights of Bona Pide Purchaser.
    1. Where a mortgagor remains in possession after foreclosure and sale, and produces a crop, one who purchases such crop in good faith and before the appointment of a receiver, will be protected.
    2. In the case presented it is held that the court below improperly ustained exceptions to the answer, which distinctly denies the good faith of the purchaser of the crop.
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of Greene County ; the Hon. Cyrus Epler, Judge, presiding.
    Mr. Mark Meyerstein, for appellant.
    When the mortgagor is left in possession, the true inference to be drawn is an agreement that he shall possess the premises at will in the strictest sense, and he is not even entitled to reap the crop.
    The crops growing on mortgaged land are covered by the mortgage, whether planted before or after its execution, until they are severed, and the lien of the mortgagee attaches as well to the crops as to the land. Rankin v. Kinsey, 7 Ill App. 215; Yates v. Smith, 11 Ill. App. 459; Anderson v. Strauss, 98 Ill. 485 ; Turner v. Armstrong, 9 Ill. App. 24; Sngden v. Beasley, 9 Ill. App. 71.
    The sale under foreclosure did not exhaust the mortgage lien. Haas v. Chicago Building Society, 89 Ill. 498.
    Mr. John G. Henderson, for appellee.
    The purchaser takes crops growing at time of sale. Jones v. Thomas, 8 Blackf. 428. But where a purchaser under a foreclosure sale suffers the mortgagor or one claiming under him, to-occupy the premises without interference, the occupant may plant crops and claim them as emblements. 1 Washb. Real Prop., 138, Sec. 21; Allen v. Carpenter, 15 Mich. 38.
    The case at bar is a stronger one than the Michigan case, for it seems that the mortgagee dispossessed the mortgagor at the end of three months in that case, while in this case the mortgagor is still in the undisturbed possession of the premises.
    The mortgagee may at any time, after default, enter and take possession of the land by ejectment or writ of entry, though he can not make the mortgagor account for past or bygone rents, for he possessed in his own right, and not in the character of a receiver. Silverman v. N. Y. Mutual Life Ins. Co., 5 Ill. App. 124.
    ■ After condition broken, the mortgagee may enter and render his security productive by the perception of the rents and profits. But, like owner of the freehold, the mortgagor is not required to account to the mortgagee for rents and profits while he remains in possession. Moore v. Tatman, 44 Ill. 367; M., V. & W. R. R. Co. v. U. S. Ex. Co., 81 Ill. 534; Amer. Bridge Co. v. Heidelbach, 94 U. S. 798.
   Conger, J.

A bill in chancery was filed by appellant ’ Knox, to foreclose a mortgage executed to him by Eoberts, a decree obtained, and on the 30th of April, 1885, the Master in Chancery sold' the land, and Knox became the purchaser for $3,300, leaving a deficiency of the total amount of the decree, interest and dosts, of $478.49. Eoberts remaining in possession in the spring of 1885 and after the sale, planted a crop of corn upon the premises and on the 18th day of August, 1885, as Oswald claims, he bought said crop of corn from Eoberts for a valuable consideration, and in good faith.

It also appears that on September 11, 1885, an execution was issued for said deficiency against Eoberts, and was returned September 15, 1885, by the Sheriff, nulla Iona. On the 2d day of October, 1885, on the petition of Knox and by virtue of a provision of the mortgage, the court in the same case entered an order appointing a receiver to take charge of and sell said corn crop.

At the February term, 1886, the said Oswald filed a petition showing that he purchased said corn in good faith without any knowledge that Knox had any claim upon it, that he is the owner of it, etc.

To this petition Knox filed an answer setting up at length the foreclosure proceedings, the sale, the deficiency, the appointment of a receiver, and concludes with an averment that Oswald did not purchase the corn in good faith or otherwise, and that such pretended purchase is only a pretense to defraud him, etc. Exceptions to this answer were filed, sustained by the court, and a decree entered finding the property in the corn to be in Oswald, from which finding of the court Knox appeals.

The question presented is not, as counsel for appellant seem to suppose, whether all crops growing upon the mortgaged premises at the sale pass to the purchaser, nor the power of the receiver to collect the rents, issues and profits arising out of the land, nor whether the mortgage security was' exhausted by the sale. These propositions may all be as contended by appellant, but neither, in our judgment, would give him a right to the property in question.

It is not only the right of mortgagor and mortgagee, but those of an innocent purchaser for value, which are to be considered. From the day of the sale to the appointment of the receiver, whatever the rights of the mortgagee may have been to reach crops grown in the meantime while the property of ¡Roberts, or his interest in rents, it is, we think, clear, there was no such existing lien upon such corn as would prevent Oswald from purchasing it from Roberts in good faith and for a valuable consideration.

As was said in Haas v. Chicago Building Society, 89 Ill. 498, “ The security, plainly, is not exhausted by the sale, for there is a fund included in it which is secondarily liable. It is true the mortgagee has elected to foreclose and sell, but then he has pursued that remedy to the end and without getting satisfaction of his debt, and he may avail himself of any just and equitable means of collecting the residue.”

The just and equitable means to which, in this case, the mortgagee might resort to collect the residue of his debt after the sale, would, be.to ask that a receiver take possession of the mortgaged premises, and apply from that date whatever could be found of the mortgagor’s interest in the premises; but we think it would be .not only unjust but inequitable to permit the receiver to seize this corn raised upon the mortgaged premises, during a time when the mortgagor had a right to their possession and control, and sold to an innocent purchaser for value before the mortgagee had taken any steps to enforce his latent and dormant rights.

We have discussed the question thus far upon the theory that Oswald’s petition was true. We think, however, the court erred in sustaining the exceptions to the answer of Knox, for in this answer he distinctly denies that Oswald was a purchaser in good faith or otherwise. If that part of the answer is true, then- Oswald has no right to interfere.

Issue should have been joined upon this question, and if, upon a trial, Oswald’s petition had been found true in this respect, then the finding of the court would have been proper.

The decree of the Circuit Court will therefore be reversed and the cause remanded, that issue may be joined upon the petition and answer as to the purchase in good faith and for value on the part of Oswald and that a decree may be entered in accordance with the finding upon that question.

Reversed and remanded.


author: Per Curiam.

text:
    Josephus Scott v. Samuel P. Sharp and J. H. Rice.

      Contradictory Evidence — Question for Jury.

    Where the only ground relied upon for the reversal of a judgment is that the verdict is contrary to the evidence, and the evidence is so contradictory that, in .the opinion of this court, it was for the jury to decide which side was worthy of belief, their finding will not be disturbed.
    [Opinion filed August 26, 1886.]

      In error to the Circuit Court of Edgar County; the Hon.. J. E. Hughes, Judge, presiding.
    Mr. Robert L. MoKinlay, for plaintiff in error.
    Where the jury capriciously disregard the evidence a new trial should be granted. C., B. & Q. R. R. Co. v. Stumps, 69 Ill. 409.
    A verdict against the evidence can not be sustained. C. & A. R. R. Co. v. Rice, 71 Ill. 567.
    In all cases where the verdict is palpably against the weight of the evidence it should be set aside. Belden v. Innis, 84 Ill. 78.
    Messrs. H. S. Tanner and William E. David, for defendants in error.
    Conflicting testimony is left to the jury, and it is the province of that body to weigh it, and unless gross wrong is perpetrated by the jury the verdict will not be disturbed. Carpenter v. Ambroson, 20 Ill. 170.
   Per Curiam.

This was a suit originally brought before a Justice of the Peace to recover the value of mole ditches made by defendants in error for plaintiff in error, and the case was appealed to the Circuit Court, where it was tried and judgment rendered against plaintiff in error for §104.80.

Ho instructions were given, and the ground relied upon for reversal is that the verdict is contrary to the evidence. We have examined the evidence and find it so contradictory that we think it was for the jury to determine which side was worthy of belief, and -that their finding ought not to be disturbed. Com. M. L. Ins. Co. v. Ellis, 89 Ill. 516. The judgment of the court below will be affirmed.

Affirmed.


author: Wall, J.

text:
    Wm. M. Gregg, impleaded with Chas. O. Gregg, v. Edward C. Sumner.

      Privilege of Parties and Witnesses from Service of Process in Civil Actions — Question may be Raised by Plea in Abatement or Motion — Office of Plea in Abatement.

    1. Parties and witnesses while in good faith '.attending upon the trial of a cause in court are protected from service of legal process in civil actions, the privilege extending so long as-may he fairly required in going to and returning, from the place of trial.
    2. The question whether a party is entitled to the benefit of this privilege may be raised by plea in abatement, although it is often presented by motion.
    3. It is the office of a plea in abatement to set up matter which merely defeats the present proceeding, but does not bar the cause of action, and it must give the plaintiff a better writ.

      Protection Ins. Co. v. Palmer, 81 Ill. 88, distinguished.
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of Vermilion County; the Hon. J. W. Wilkins, Judge, presiding.
    Messrs. Moses, Newman & Reed, for appellant.
    Parties, witnesses and jurors are privileged from service of legal process in civil actions while in good faith they are in attendance upon a trial of a cause in court. This privilege exists during the time fairly occupied in going to and returning from the place of trial and hearing, as well as during the time'when1 the party is in actual attendance at the place of trial. Brooks v. Farwell, 4 Fed. Rep. 166; Funeau Bank v. McSpedan, 5 Biss. 64; Bridges v. Sheldon, 7 Fed. Rep. 17; Plimpton v. Winslow, 9 Fed. Rep. 365; Lyell v. Goodwin, 4 McLean, 329; Person v. Grier, 66 N. Y. 124; Aichol v. Horton, 14 Fed. Rep. 327; Larned v. Griffin, 12 Fed. Rep. 590; Matthews v. Tufts, 87 N. Y. 568; Thompson’s Case, 122 Mass. 428; In re Healy, 53 Vt. 694; Dungan v. Miller, 8 Vroom, 182; Grier v. Young, 17 Ill. App. 106.

      Plea in abatement is a proper way to raise the question presented here. There was an issue of fact as well as of law possible, and hence a plea was the proper practice. Waterman v. Tuttle, 18 Ill. 292; Hamilton v. Dewey, 22 Ill. 490; Wallace v. Cox, 71 Ill. 548; Drake v. Drake, 83 Ill. 526; Gilker v. Vanderpool, 15 Johns. 242.
    Messrs. O. L. Davis and J. B. Mann, for appellee.
    A plea in abatement must be “to a certain intent in every particular,” leaving on the one hand nothing to be supplied by intendment or construction, and on the other, no snpposable special answer unobviated. The pleader must not only answer fully what is necessary to be answered, but also must anticipate and exclude all such snpposable matter as would, if , alleged on the opposite side, defeat his plea. Gould on Pleading, Chap. 3, 57, 58 ; Diblee et al. v. Davison, 25 Ill. 486. The question of proper service should have been raised by motion. Grier v. Young, 17 Ill. App. 106; Protective Life Ins. Co. v. Palmer, 81 Ill. 88.
   Wall, J.

The present suit was commenced in the Circuit Court of Vermilion County. The appellant filed his plea in abatement, alleging that he was a citizen and resident of Cook County^ and that at the time of the service of summons herein he was in Vermilion County for the purpose of testifying . in a certain cause then pending in the Circuit Court, in which he was a party plaintiff, having come there upon the advice of counsel for said purpose, and that after he -had so testified and while the jury were considering the case, and while he was still in the court room, and before he had time to take his departure, he was seiwed with the said summons. The Circuit Court sustained a demurrer to the plea, and the appellant not answering further, judgment was entered for the plaintiff. The plea clearly shows that service was had while appellant was in attendance as a suitor and witness in the court and before a reasonable time for him to depart from the court had elapsed, and the question is whether in a legal sense he was “ found ” in the county when served with the summons. There is no doubt that by the great weight of authority, it is an established and well settled principle that parties and witnesses are privileged from service of legal process in civil actions while in good faith attending upon the trial of a cause in court, and the privilege extends in point of time so long as may be fairly required in goingto and returning from, the place of trial as well as while the party is in actual attendance there. Among many may be cited the following : Larned v. Griffin, 12 Fed. Rep. 590; Person v. Grier, 66 N. Y. 124 ; Matthews v. Tufts, 87 N. Y. 568; Edward Thompson’s Case, 122 Mass. 428 ; Dungan v. Miller, 8 Vroom, 182 ; Grier v. Young, 17 Ill. App. 106.

It is urged, however, that the question was not properly raised by plea in abatement, but should have been presented by motion.

There are many cases where a motion has been entertained for this purpose, and in modern practice, for the sake of convenience, motion has been substituted for plea in abatement with the apparent sanction of the court in sundry instances, where, strictly speaking, it might not seem exactly technical or logical, but we do not think the innovation has gone so far as contended for.

The office of a plea in abatement is to set up matter which merely defeats the present proceeding ; but does not show that the plaintiff is forever concluded, and it must give the plaintiff a better writ. 1 Ch. Pl, 446 et seq.

Technically considered, the facts set up here present matter in abatement of the present suit, but do not bar the plaintiff forever.

The case of Protection Ins. Co. v. Palmer, 81 Ill. 88, cited . by counsel, is not in point.

There the writ was served upon one who was supposed to be the agent of defendant corporation but was not, and the court said there was no error in striking from the files a plea in abatement based on this mistake, because, if the person served was not the agent and the return was quashed, it would not give a better writ. A better service might be had, but not a better writ. For aught appearing the suit was commenced in the proper county. Here the facts pleaded show that Cook, not Vermilion, was the- proper county in which to sue and this gives the plaintiff a better writ. We are of opinion the court erred in sustaining the demurrer to the plea in abatement. The judgment will be reversed, and the cause remanded.

Reversed and remanded.


text:
    Morrison & Whitlock v. James M. Stewart.

      Error in Judgment — Am endment.

    Where a judgment has been inadvertently entered for the plaintiff instead of for the defendant, an amendment may be allowed upon motion even after the expiration of the term.
    [Opinion filed August 26, 1887.]
    Appeal from the Circuit Court of Fulton County; the Hon, John C. Bagby, Judge, presiding.
    Messrs. Mobrison & Whitlock, for appellant.
    During the term and while the cause is still pending the court has the right to correct errors, but after a term has elapsed the power of the court to correct substantial errors is at an end. Hnder the common law, a record imports absolute verity. Forquer v. Forquer, 19 Ill. 67; Coughran v. Gutcheus, 18 Ill. 390; Cook v. Wood, 21 Ill. 295; Becker v. Sauter, 89 Ill. 596; Goucher v. Patterson, 91 Ill. 525; Gillett v. Booth, 6 Ill. App. 423.
    Even if amendment be made it must be by the minutes of the Judge. Millard v. Cooper, 10 Ill. App. 47; People v. Zane, 105 Ill. 662; Lilly v. Shaw, 59 Ill. 72.
    Messrs. H. W. Masters and O. A. DeLeuw, for appellee.

      The right to amend a judgment on account of a clerical error, by the court in which the error occurs, is a common law right. Atkins v. Hinman, 2 Gilm. 437; Lyon v. Boilvin, 2 Gilm. 629; O’Connor v. Mullen, 11 Ill. 57 ; Stahl v. Webster, 11 Ill. 511; Mains v. Cosner, 67 Ill. 536; Baragwanath v. Wilson, 4. Ill. App. 80.
   Per Curiam.

The appellants sued out a writ of replevin against the appellee. At the return term they dismissed their suit and an order appears on the Judge’s minutes showing such dismissal, as follows: “Plaintiff dismisses suit at his cost, and • return of property awarded and one cent damages for plaintiff.” The clerk entered up judgment accordingly. At a subsequent term 'motion was made, due notice having been given to amend the judgment so as to show that a return of property and judgment for cost was awarded in favor of defendant instead of plaintiffs. The Circuit Court, on inspection of the record and hearing the testimony of the Judge who presided at the time the original order was made, allowed the motion to amend. From this order an appeal is now prosecuted. It is quite apparent that the word “ plaintiff,” as it appearsattheend of the Judge’s minutes, was used inadvertently, and that the word “ defendant ” was intended. This mere slip of the pen should be corrected, and as we understand the current of modern decisions in the United States, is a proper subject of amendment even after the term at which it occurred. It is one of those cases where it “ so clearly appears that the judgment as entered is not the sentence which the law ought to have pronounced, upon the facts as established by the record, that the court acts upon the presumption that the error is a clerical misprision rather than a judicial blunder, and sets the judgment, or rather the judgment entry, right, by an amendment nune pro tune.” Freeman on Judgments, Sec. 70; Ives v. Hulce, 17 Ill. App. 30.

Affirmed.


text:
    Mary Ann Wehr v. James W. Brooks, Executor.

      Action for Personal Injuries — Survivorship—Statute—Parties.
    Under See. 123, Ch. 3, R. S., a right of action to recover damageslor an injury to the person survives. This survivorship applies in case of the death of the defendant as well as that of the death of the plaintiff.
    [Opinion filed August 26, 1886.]
    In error to the Circuit Court of Sangamon County; the Hon. Jesse J. Phillips, Judge, presiding.
    Messrs. Orendoref & Patton, for plaintiff in error.
    No counsel appeared for defendant in error.
   Per Curiam.

Plaintiff in error sued the deceased, in case, to recover damages for personal injuries by a cow alleged to have been kept by him with knowledge that she was vicious. Upon his death, after service of process and before trial, his executor was made defendant in his stead. There was' a verdict for the plaintiff which the court set aside, whereupon the executor obtained leave to withdraw the pleas and then moved for judgment that the suit abate, because of the death of the original defendant since it was commenced, which was also allowed and the judgment entered.

This was error, the common-law rule being changed by See. 123 of Ch. 3 of the E. S., providing that “ in addition to the actions which survive by the common law, the following shall also survive actions of replevin, actions to recover damages for an injury to the person,” and others mentioned. This survivorship is not limited as to parties; that it.applies in the case of the death of plaintiff was expressly held in Murphy v. McGrath, 79 Ill. 594; and in that of the death of defendant clearly implied in Knox v. City of Sterling, 73 Ill. 214.

Por this error the judgment is reversed and the cause remanded.

Reversed and remxmded.


author: Couger, J.

text:
    Herald Catlett v. John H. Dougherty.

      Statute of Frauds — Contract for Sale of Lands — Parol Rescission — Re. sale — Possession.
    1. A rescission of an executory contract for the sale of lands is within the Statute of Frauds, and requires the same evidence to establish it as is required to establish a sale.
    2. A transfer or re-sale of lands to the original owner by one in possession thereof under the contract of purchase is within the Statute of Frauds, and requires some evidence in writing to sustain, an action for the consideration.
    8. In the case presented the attémpted transfer was an intended re-sale and not a rescission of the original contract, said transfer being of a less interest than that covered by said contract.
    [Opinion filed May 21, 1886.]
    Appeal from the Connty Court of Vermilion County; the Hon. J. F. Hughes, Judge, presiding.
    Messrs. Lawrence & Thompson, for appellant.
    An action at law can not be maintained for the purchase money of land in the absence of any note or memorandum of the sale, and the fact that there was part performance does not take the case out of the Statute of Frauds. Creighton v. Sanders, 89 Ill. 543; Johnson v. Hanson, 6 Ala. 351; S. C. 41 Am. Doc. 54; Updike v. Armstrong, 3 Scam. 564; Fleming v. Carter, 70 Ill. 286; Wheeler v. Frankenthal, 78 Ill. 124; Hughes v. Moore, 7 Cranch. 192.
    The case is not taken out of the Statute of Frauds, because the contract of sale is not established by competent proof to have been clear, definite and unequivocal in all of its terms. Worth v. Worth, 84 Ill. 442; 4 Kent Com. 4th Ed. 519.
    And further, the acts of part performance, which in this case is alleged possession, must have been unequivocally in execution of the parol agreement, and not referable to a title distinct from the parol agreement. Wallace v. Eappleye, 103 Ill. 229; Frame v. Davison, 14 Ves. 389.
    Messrs. O. L. Davis and J. B. Mann, for appellee.
    Appellee is not seeking to enforce any contract to purchase land, nor to recover for a breach of a contract to purchase land. He is merely seeking to recover the price of land, or of an interest in land sold and conveyed.
    . Under the contract offered in evidence appellee had an estate in the land and was indeed an equitable owner. But he only had such interest by virtue of the contract, and when that > contract was rescinded the rescission was ipso facto a conveyance or merger of the equitable title in the legal title owned by appellant, and was all that was necessary to be done in order to completely extinguish the title of appellee and vest it in appellant. Such rescission could be made by parol as well as writing. Falls v. Carpenter, 28 Am. Dec. 605; Dearborn v. Cross, 7 Cow. 48; Morrill v. Colehour, 82 Ill. 619; Brown v. Gaffney, 28 Ill. 149.
    Where a contract has been fully executed and nothing remains to be done but the payment of the money, a recovery may be had upon the money counts. Eggleston v. Buck, 24 Ill. 262; Lane v. Adams, 19 Ill. 167.
    When appellee put appellant into possession of the property with the agreement to surrender all his rights under the written contract, he fully performed his part of the contract and was entitled to receive his money.
   Couger, J.

The only question in this record necessary to discuss is one arising upon the Statute of Frauds. In November, 1878, by a written contract, executed by Catlett and Dougherty, the former agreed to sell and convey to the latter certain lots of land upon which stood a mill, for the price of $4,613.13. Afterward Dougherty sold one half interest in the property to one McCabe, and" afterward, in September, ■1881, as testified to by Dougherty, he sold the other undivided half of the mill back to Catlett by a parol contract, at the price of $3,500.

The present action was assumpsit to recover various items of account of which the principal one was this $3,500.

Upon thé trial below the court permitted appellee, against the objection of appellant, to prove by parol the verbal contract by which he claimed to have sold the one half interest in the mill property to appellant, and this is the principal error assigned.

It is insisted by appellee, that the transaction was not a sale of an interest in the land but merely a surrender by him to appellant of the equitable interest which appellee held by virtue of the written contract. That as the legal title was in appellant all the time, appellee might well surrender the right of possession, and the equitable right to a conveyance which he held by parol, and that it needed no writing to legally effectuate this purpose.

It would make no difference whether the transaction be regarded as a sale or the rescission of the executory contract, for both would be within the Statute of Frauds, and require some evidence in writing to sustain them. We are inclined to think, however, that the transaction, as testified to by appellee, was not a rescission of the written contract, for there was no attempt by the parties to place themselves in statu quo, but that it was intended as a re-sale, for it was of a' portion of the property only and not what had been originally purchased, and also for an increased price.

The Statute of Frauds declares: “Ho action shall be brought to charge any person upon any contract for the sale of lands, tenements or hereditaments, or any interest in or concerning them, for a longer term than one year, unless such contract or some memorandum or note thereof shall he in writing, and signed by the party to be charged therewith, or some person thereunto by him lawfully authorized in writing, signed by such party.”

j Appellee had by virtue of his written contract an equitable I interest in the property. He was also in possession, which is prima facie evidence of title, and both of these interests are within the meaning of the statute, and could not be transferred to appellant by parol, so as to make’him liable for the purchase price. And this, too, whether the transaction be regarded as a sale or an attempt by parol to rescind the written contract by. which appellee became vested with such equitable interest, for both would be within the statute, and require evidence in writing to sustain them; for, “The very object of the statute is to prevent the divestiture of a title to real estate, equitable or legal, by the introduction of loose and indeterminate proof of a contract which the law requires should be made in the most solemn form.” Goucher v. Martin, 9 Watts, 106.

“A contract for the sale and delivery of the possession of land and the improvement thereon must be in writing, other, wise it is within the Statute of Frauds. Possession is prima facie evidence of title, and is an interest in land within the statute.” Howard v. Easton, 7 Johns. 205.

“An oral rescission of the sale of lands is not valid under the Statute of Frauds. A verbal contract to rescind a written one by which land had become vested is within the Statute of Frauds.” Peed on Statute of Frauds, Vol. 2 Sec. 456.

“An agreement for the rescission of an executory contract for the sale of land is within the Statute of Frauds, and requires the same evidence to' establish it as is required to. establish the sale.” Dial v. Crain, 10 Texas, 444.

“ That the fourth section extends to and embraces equitable as well as legal interests in land is well settled. It has been held by Mr. Justice Story that a verbal contract to buy a contract for lands, or in other words to buy another man’s rights under an executory agreement for the sale of lands to him, was affected by the statute because it was for the purchase of an equitable interest in real estate.” Broom on Statute of Frauds,. Sec. 229.

We do not think the case of Morrill v. Colehour, 82 Ill. 618, cited by appellee, in any sense militates against this doctrine. The coxxrt in speaking of the written contract between, the parties say: “The written agreement executed by Cole-hour only binds him to pay appellant and the others equal portions of the one half of the net profits ai-ising from the sale of the lands. It in no event bound him to convey the-land, nor can we imagine any state of facts that could arise: under the agreement that would require a court of equity to compel him to convey the land to them. * * * It was not bought to hold as land, but simply as an article of commerce and for speculation, and for that reason equity regards it as personal property among the partners. In such cases the intentions of the parties stamps the character of the transaction. We are for these reasons of opinion that this (the parol contract) was not a contract for such an interest in lands as to fall within the Statute of Frauds, and was not therefore void, because it was not in writing.” They there hold that the terms and conditions of this written contract might be dispensed with by parol, for the very reason, as we understand, that the interest held by the written contract was under the circumstances regarded as personalty and not an interest in land within the statute.

Appellee’s counsel in their argument say, “we are unable to perceive the application of the Statute of Frauds to this case. Appellee is not seeking to enforce any contract to purchase land, nor to recover for a breach of a contract to purchase , land. He is merely seeking to recover the price of land or of an interest in land sold and conveyed.”

We hold the alleged parol contract being void, conveyed nothing, and it is clear that no action can be maintained for the purchase price solely as such when the contract of sale is itself void and passes nothing to the purchaser.

It is also insisted that “full performance takes the case out "of the statute.” True; but here is only possession taken under a parol contract which falls far short of full performance, or such part performance as would avail to take the case out of the statute; and part performance would not avail appellee in this action, as “part performance of a verbal contract within the Statute of Frauds has no effect at law to take the case out of its provisions; this'can only he done in equity.” Wheeler v. Frankenthal & Bro., 78 Ill. 724.

For the error of the court in admitting evidence of this parol contract the judgment of "the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.


author: Pleasants, P. J.

text:
    Philip B. Potts and Catharine Potts v. Leslie G. McPherson, Jonathan Meeker and, Sarah Shute.

      Chattel Mortgage — Sale hy Mortgagor, V-oid.

    1. A sale by the owner of personal property covered by a chattel mortgage, without notice to the vendee, is void.
    2. A mortgagor of personal property can not recover from the purchaser-at mortgagee’s sale the difference between the price paid and price agreed upon between the parties on an attempted private sale prior to such sale, and before said purchaser knew of said mortgage.
    [Opinion filed August 26, 1886.]
    In error to the Circuit Court of Moultrie County; the Hon. C. B. Smith, Judge, presiding.
    Mr. W. H. Shinn, for plaintiff in error.
    Messrs. Eden & Clark, for Mrs. Sarah Shute, defendant in error.
   Pleasants, P. J.

On the 29th of September, 1880, Philip B. Potts and wife executed to Mrs. Sarah Shute a mortgage of their homestead to secure the payment of three notes of said Philip — one payable to E. B. McPherson and by him assigned to the defendant in error, Leslie G. McPherson; one to Jonathan Meeker, and a third for 8650 to Mrs. Shute, all of even date with said mortgage and due in two years, with interest at eight per cent, per annum..

To enforce payment of the first two mentioned the original bill herein was filed by the respective holders, making the mortgagors and Mrs. Shute defendants, and the latter, after answering, filed a cross-bill setting up her right and praying relief upon the one held by her. To the cross-bill the defendants Potts answered that said note, which was averred to have been given for an indebtedness to William Shute, the husband of said complainant, had been fully paid by the sale to her through her husband of a stationary steam engine, and the mortgage released.

The issues having been made up. the cause was referred to the master, and on final hearing upon the pleadings and proofs reported, a decree was entered in favor of the complainants in the original and cross-bills, in the usual form, for the full amounts of the"notes so held by them, respectively.

No complaint is made of the decree upon the original bill, but the mortgagors, plaintiffs in error, insist, as to the claim of Mrs. Shute, that if it was not wholly satisfied and the mortgage released, they were entitled to a considerable credit which the Circuit Court erroneously refused to allow. It appears that about the 20th of February, 1882, Philip B. Potts, who resided and was running a saw mill in Moultrie County, sold to William Shute, who resided and was- erecting a tile factory at Newman in Douglas County, a steam engine, which he was to deliver on the railroad track at Newman, together with a belt belonging to it and four hundred feet of sawed lumber, and take said note in payment, and that within a few days thereafter a release of the mortgage was left by Mr. and Mrs. Shute with Mr. ¡Rhodes, an attorney, to be delivered to Potts only when he should have completely performed the agreement on his part. Mrs. Shute was particular and emphatic on that point, and the release was never delivered to Potts.

The engine was not shipped to Newman until the 21st of April, the delay being caused by the refusal of Messrs. Roane and Low, who held a chattel mortgage upon it for something over §300, to permit the shipment until their claim should be satisfied. They afterward replevied it from Shute and made sale of it under their mortgage, at which Shute purchased it for §400; and it is the difference between this price and the amount of the note which he was to surrender to Potts, under their agreement, that plaintiffs in error claim they should have been credited by the decree upon the cross-bill herein.

We do not think this' claim well founded. Although the evidence upon these points is somewhat conflicting, there is an abundance in the record to warrant the conclusions that Potts sold the engine to Shute without informing him, and that Shute at that time had no knowledge or information of the existence of the chattel mortgage; that though he afterward, and before he received the engine, had knowledge of the' mortgage, he received it in the belief and with good reason for the belief that the mortgage debt had in the meantime been satisfied, and that Potts finally shipped it to Shiite at Newman without the consent or knowledge of the chattel mortgagees.

Potts never performed either strictly or substantially his agreement with Shute. He was to give a clear title and pay the freight, but did neither. Shute received absolutely nothing of right under his purchase from Potts. He did not by that agreement undertake to redeem from the mortgage nor to pay a dollar in money to anybody for the engine, and was at full liberty to purchase independently, as he did, at the mortgage sale.

Furthermore, by the sale to Shute without informing him of the mortgage, Potts made himself liable, under Sec. 6 of Oh. 95 of the B. S., to a forfeiture to the purchaser of twice the value of the engine, and under Sec. 7, to a fine of the same amount or imprisonment in the county jail not exceeding one year, or both, at the discretion of the court. Such sale, being so prohibited, was void, and, since a contract which it is illegal to make can not support an action, the vendor could not rightfully claim the aid of a court of law or equity to recover the price or any part of it. Miller v. Post, 1 Allen, 434; Russell v. Wheeler, 17 Mass. 257; Allen v. Hanks, 33 Pick. 79; Penn v. Bourman, 102 Ill. 523; Workingmen’s Banking Co. v. Rautenberg, 103 Ill. 460; Benjamin on Sales, Sec. 530; Jones on Ch. Mortg., Sec. 455; Anson on Contracts, 164.

The credit was therefore properly disallowed and the decree will be affirmed.

Deoree affirmed.