author: Mr. Justice Waggoner

text:
    Joseph C. Todd et al., v. David Todd et al. David Adler & Sons (Intervening Petitioner), Appellant, v. Edith R. Arthur (Intervening Petitioner), Appellee.
    1. Judgment, § 549

      —when lien lost by failure to issue execution. Where a judgment was rendered in one county, and no execution issued to the county of the rendition of the judgment within one year, hut execution issued within that time to another county, the lien of the judgment was lost as to property in the county of rendition, by failure to have the execution issue to that county within the year.
    2. Judgment, § 570*—when judgment creditor not entitled to equitable consideration as against another judgment. A creditor intervening in a partition suit who had a judgment for $6,838.68, and had redeemed from a prior execution and obtained title to the land at a profit of $7,385.18, and who in addition had received $568.65 on a first execution issued by her, and $825.32 from the master in chancery, making a total of $8,779.15 in excess of principal and interest due her, and only credited the judgment with the total of $1,393.97 obtained on her first execution and from the master, and still claimed a balance of $4,944.71 on her judgment, did not make a case entitling her to any equitable consideration as against another judgment creditor who had received nothing on his judgment.

      3. Judgment, § 549

      —within what time execution must issue. Under the statute relating to liens of judgments on real estate, Hurd’s Rev. St. eh. 77, sec. 1, providing that a judgment shall be a lien on real estate within the county for which the court is held, from the time the same is rendered, and that if execution is not issued in one year from the time the same becomes a lien, it shall thereafter cease to he a lien, the legislature, in using the expression “from the time the same becomes a lien,” referred to the “time the same is rendered”; and therefore an execution must issue within one year from the date of judgment to continue the judgment lien seven years on real estate of the judgment debtor located in the county in which the judgment was rendered.
    4. Judgment, § 564*—how lien obtained on land in foreign county. The statute has not, in terms nor by implication, given the same force to the levy on land under an execution, to create a lien, that arises from the rendition of the judgment; and the only way of obtaining a lien on land in a foreign county, under a judgment rendered in another county, would be by the levy of an execution and filing a certificate of the same in the foreign county; and in such case it is the levy of the execution, not the judgment or decree, that creates the lien in the foreign county.
    5. Judgment, § 570*—what order of priority of judgment creditors. The better rule, and the one more in accordance with the established principles of equity, is to give each complainant, jn several successive creditors’ bills against the same defendant, priority over all creditors whose debts have not been reduced to judgment, and priority among themselves in the order of the time of filing of their respective bills.
    Appeal from the Circuit Court of DeWitt county; the Hon. George A. Sentel, Judge, presiding. Heard in this court at the April term, 1918.
    Reversed and remanded with directions.
    Opinion filed April 29, 1919.
    Dewitt O. Corley, for appellant.
    Baldwin & Carey, for appellee. .

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

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

   Mr. Justice Waggoner

delivered the opinion of the court.

James S. Todd died intestate July 11, 1916, leaving as one of his heirs, Anna M. Bybolt, who inherited an undivided one-seventh of his real estate in DeWitt county, Illinois. A suit to partition the real estate was filed July 19, 1916, in the circuit court of DeWitt county. On December 2, 1916, decree for sale was entered, and a sale was made by the master in chancery on January 6, 1917. An intervening petition was filed by David Adler & Sons on January 8, 1917. Edith E. Arthur filed an intervening petition on January 12, 1917. No report of sale had been filed when the intervening petitions were filed. The share of Anna M. Eybolt amounted to $3,925.32, and by agreement $825.32 was paid to Edith E. Arthur, and the residue, amounting to $3,100, is claimed by both intervening petitioners.

Edith E. Arthur is a daughter of Anna M. Eybolt. She procured a judgment against her mother on October 7, 1915, in DeWitt county, for $6,338.68. On the same day execution was issued to Macon county, levied on personalty and $568.65 was realized and credited on the judgment. A second execution was issued on November 18,1916, to Macon county, under which certain lands in Macon county were redeemed from a prior execution sale to Wilson Brothers, resold and brought the redemption money only, $614.82; this land was worth $16,000 and was subject to an $8,000 mortgage. Edith E. Arthur obtained a deed, so the transaction netted her a profit of the difference between $16,000 and $8,614.82, or $7,385.18. Edith E. Arthur has in fact received on her judgment $568.65 on the first execution, $7,385.18 profit on the redemption of the real estate, and $825.32 from- the master in chancery, making $8,779.15, which is in excess of the principal and interest due on the judgment. The only credits appearing are $568.65 and $825.32, or a total of $1,393.97, so Edith E. Arthur still claims a balance due on the judgment of the difference between $6,338.68 and $1,393.97, or $4,944.71. On January 12, 1917, Edith B. Arthur had a third execution issued on her judgment. This was the first execution issued to Dewitt county and was issued more than fifteen months after the judgment was rendered. On January 12, 1917, Edith B. Arthur procured from Anna M. Bybolt an assignment of all right, title and interest in and to the estate of James S. Todd for one dollar and “other good and valuable consideration.” On the same day Edith B. Arthur filed an intervening petition in the partition suit.

David Adler & Sons obtained judgment in the circuit court of Macon county on November 8, 1915, for $2,695.05 against Anna M. Bybolt. On the same day execution was issued to the sheriff of Macon county, and was returned February 5,1916, no property found. On January 8, 1917, a second execution was issued to Dewitt county, but no levy was made or certificate of levy filed. On the same day, January 8, 1917 a transcript of the judgment was filed in Dewitt county, but no execution was issued on this transcript. The intervening petition was filed as above noted by David Adler & Sons on January 8, 1917.

The 'appellee, Edith B. Arthur, in her brief says:

“The appellee herein has filed her intervening petition under sections 14 and 15 of the Partition Act, claiming that she was a judgment creditor having a lien on the interest of Anna Todd Bybolt in the lands of James S. Todd, deceased, and by her intervening petition, or bill of interpleader, she sets up those rights and asks the court to recognize and declare her lien upon those lands.”

The master in chancery found (and the circuit court approved his finding) that the execution issued October 7, 1915, to Macon county made the judgment of Edith Arthur obtained in Dewitt county a lien on any lands that the judgment debtor, Anna M. Bybolt, might own in Dewitt county for a period of seven years, and that it was not necessary for an execution to issue to the sheriff of Dewitt county to make the judgment a lien on the land owned by the judgment debtor in Dewitt county.

Section 1, of chapter 77, Hurd’s Bev. St., provides:

“A judgment of a court of record shall be a lien on the real, estate of the person against whom it is obtained situated within the county for which the court is held, from the time the same is rendered or revived for the period of seven years and no longer: Provided, that there shall be no priority of the lien of one judgment over that of another rendered at the same term of court, or on the same day in-vacation; and upon filing in the office of the clerk of any court of record in any county in this State, of a transcript of a judgment or decree rendered in any other county of this State, such judgment shall have the like force and effect, and shall be a lien upon the real estate of the party against whom the same is obtained in said county where filed, and execution may issue thereon in said county, in like manner as in the county where originally obtained. When execution is not issued on a judgment within one year from the time the same becomes a lien, it shall thereafter cease to be a lien, but execution may issue upon such judgment at any time within said seven years, and shall become a lien on such real estate from the time it shall be delivered to the sheriff, or other proper officer, to be executed.”

Sections 4 and 34, same chapter, provide for executions to ‘1 any county, ’ ’ and that in such case a certificate of levy shall be filed, and, until filed, such levy shall not take effect as against creditors and bona fide purchasers without notice.

By the statute a judgment “shall be a lien on the real estate of the person against whom it is obtained situated within the county for which the court is held, from the time the same-is rendered.” If execution is not issued in one year “from the time the same becomes a lien,” it shall cease to "be a lien. It is obvious that when the legislature used the expression “from the time the same becomes a lien” they referred to the “time the same is rendered.” Therefore an execution must issue within one year from the date of the judgment to continue the judgment lien seven years on real estate of the judgment debtor located in the county in which the judgment was rendered. ■ -

At the common law, a judgment created no lien upon the lands of a defendant. Durham v. Heaton, 28 Ill. 264 (275). The lien of judgments on real estate and the power to sell lands under execution are regulated alone by statute. The lien only attaches and becomes effective by force of the statute, and only in the mode, at the time, and upon the conditions and limitations imposed by it. It receives no vigor or even aid from the common law, to which it was unknown. The statute has not, in terms, nor so far as we can see, by implication, given the same force to the levy on land under an execution, to create a lien, that arises from the rendition of a judgment. The statute has said the latter shall create the lien, but has not said the levy may, except in cage an execution is sent to a foreign, county, and the levy is recorded as required. Tenney v. Hemenway, 53 Ill. 97 (101); Hall v. Gould, 79 Ill. 16 (22). It was said in Sapp v. Wightman, 103 Ill. 150 (157): “The only way, under the statute then in force, of obtaining a lien upon land in Tazewell county under a judgment in the circuit court of Peoria county, would have been by the levy of an execution upon the judgment, and filing a certificate of the same in the recorder’s office of Tazewell county, and it is the levy of the execution, not the judgment or decree, that creates the lien in such case on land in another county.”

There is therefore a distinction between the judgment lien created by section 1 of the Statute and the execution lien created by issuing an execution to a foreign county, and filing a certificate of levy under sections 4 and 34 of the statute. Under section 1, the ■ judgment ceases to be a lien at the end of one year when execution is not issued within the year to the sheriff of the county, wherein the judgment was rendered. “Where no execution is issued within one year from the entry of judgment, the same ceases to be a lien. Still an execution may be sued out at any time within seven years, and in such case the execution becomes a lien upon land from the time it is delivered to the officer to be executed.” Dobbins v. First Nat. Bank of Peoria, 112 Ill. 553 (560). . It was therefore necessary, in order that the judgment of Edith R. Arthur become a lien for seven years-, that an execution issue within one year from its date to the sheriff of Dewitt county. The first execution to the sheriff of Dewitt county was issued more than fifteen months after the date of the judgment. Therefore the judgment of Edith R. Arthur ceased to be a lien at the expiration of one year from its date. The judgment of Edith B. Arthur having ceased to be a lien, the question remaining is with reference to the priority of rights of the intervening petitioners under their petitions.

The appellee concedes that appellant has filed its intervening petition under section 49 of the Chancery Act on the theory that appellant has exhausted its remedy at law and there was no property subject to execution of the said Aima M. Rybolt out of which it could satisfy its debt, and therefore it has the right to ask for the aid of a court of equity for an equitable lien upon equitable assets not subject to execution.

The appellant filed its intervening petition on January 8, 1917, four days prior to the filing of the intervening petition by the appellee, Edith R. Arthur, on January 12, 1917. The better rule, and the one more in accordance with the established principles of equity, is, to give to each complainant, in several successive creditors’ bills against the same defendant, priority overall creditors whose debts have not been reduced to judgment, and priority among themselves in the order of the time of the filing of their respective bills. Russell v. Chicago Trust & Savings Bank, 139 Ill. 538 (550); Young v. Clapp, 147 Ill. 176 (188).

The appellee, Edith B. Arthur, having received more on her judgment than is due her does not make a case that entitles her to any equitable consideration. The equities of this case are clearly with Adler & Sons. Edith B. Arthur’s judgment having ceased to be a lien at the expiration of one year from its date, and no execution having been issued within said year to the sheriff of Dewitt county in which the judgment was rendered, and Adler & Sons having filed their intervening petition four days before Edith B. Arthur filed her intervening petition, it was error in the circuit court to enter a decree giving Edith B. Arthur a priority over Adler & Sons in the distribution of the $3,100 in question. A decree should have been entered giving Adler & Sons priority. The cause is, therefore, reversed and remanded with directions to enter the decree in favor of Adler Ss Sons above indicated.

Reversed and remanded mth directions.


source: Caselaw Access Project

license: Public Domain

text:
    A. M. Kauffman, Appellant, v. David J. Plank et al., Appellees.
    1. Religious societies, § 39

      —when expulsion of member damnum, absque injuria. Loss suffered by a person by reason of his being expelled from a church membership was damnum absque injuria.

    2. Religious societies, § 39*—when injury to member by expulsion not remediable. In trespass against bishops of a church for expelling plaintiff from membership, where damages were- sought because such expulsion caused plaintiff’s father-in-law to break a contract he had with plaintiff, the injury was not one for which redress could be had in a civil court.
    3. Action on the case, § 11*—when breach of contract not attributable to expulsion from religious society. In trespass against bishops of a church for expelling plaintiff from membership,- where damages were claimed because such expulsion caused plaintiff’s father-in-law to break a contract he had with plaintiff, the fact that between the act of defendants and the damage sustained, there was the intervening belief of the father-in-law which caused him to prefer to evict plaintiff rather than oppose the decree of the church, broke all connection between the alleged wrongful expulsion and the damage.
    Appeal from the Circuit Court of Douglas county; the Hon. Fbanklin H. Boggs, Judge, presiding. Heard in this court at the April term, 1918.
    Affirmed.
    Opinion filed April 29, 1919.
    A. L. G-illiom and Charles Troup, for appellant.
    John H. Chadwick and P. M. Moore, for appellees.

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

   Mr. Justice Waggoner

delivered the opinion of the court.

This is an action of trespass on the case brought by the appellant, A. M. Kauffman, against the appellees, David J. Plank, Andrew J. Mast, Joseph Schrock, Abraham Schrock, Samuel Beachey and Eli Otto for $25,000 damages. To a declaration of three counts a demurrer was sustained, and the plaintiff electing to stand by his declaration, a judgment was rendered against him, and the case brought here by appeal.

The substance of the declaration, so far as we consider it necessary to state the same, is that the plaintiff and the defendants were members of the Amish Mennonite Church, a voluntary religious organization, whose principles, creed, doctrines and code of discipline rest wholly in custom; that the defendants, Plank and Mast, are bishops in such church and the other defendants ministers; that under the doctrines of the church all matters in dispute of an ecclesiastical nature which arose between the members were finally settled by a church trial, at which all members of the congregation, excluding the parties to the controversy, were the judges; that no member should be tried without first being duly charged before the bishop with an offense against the principles of the church, and without being notified of the charge, its nature and the time and place of trial, and without an opportunity to be heard and introduce evidence; that when any one was excluded from the church a decree of alienation was pronounced against him, and the rest of the members were bound not to have any business or other dealings with the member so excluded, and should not socially, financially, pecuniarily or otherwise deal with him; that one Joel Miller, the father-in-law of the plaintiff, was the owner of 260 acres of land upon which plaintiff resided under an agreement with Miller, by which the plaintiff was to cultivate and improve the same, and the farm should become the property of himself and wife, and the plaintiff so resided on the farm from 1897 to 1914, making valuable and permanent improvements, and that Joel Miller would have carried out and fulfilled the contract had it not been for the malicious acts of the defendants; that in 1912 defendant Plank entered into a written contract with one Trexler for the transfer of certain real estate and Plank refused to perform said contract, and Trexler, being a neighbor of the plaintiff and not a member of said church, requested the plaintiff to use his influence with the defendant Plank to secure the performance of such contract; that the plaintiff was under the belief that the defendant Plank was seeking to avoid his obligation under the contract, and under this belief the plaintiff undertook to influence Plank to perform it, and save the defendant Plank’s reputation for fair dealings as a bishop of the church, and further to safeguard the reputation of said religious sect; that the plaintiff was unable to induce Plank to perform the contract; that the plaintiff and Plank differed as to the proper construction of it, and failing to agree the question was brought before a meeting of the Amish Mennonite congregation; that at such meeting the contract was construed and the conclusion reached that the defendant Plank had taken a wrong view of the matter, and should satisfactorily adjust his differences with Trexler; that the defendant Plank failed to adjust his differences with Trexler, whereupon Trexler requested the plaintiff to use his influence with Plank to effect a settlement, and this the plaintiff attempted without result, whereupon the congregation met for the purpose of reconsidering the proper construction of the contract, and at the meeting the conclusion was reached that both constructions placed on the written contract by the plaintiff and the defendant were probably reasonable constructions, and the plaintiff was requested to grant to the defendant Plank the privilege of construing the contract as he had theretofore construed it, whereupon the plaintiff refused, and thereupon the defendants wilfully, maliciously, wrongfully and arbitrarily constituted themselves a tribunal and went into executive session, the object of which was unknown to plaintiff, and later emerged into the presence of the congregation, and without first having permitted a vote by the members of the congregation announced, that they had expelled the plaintiff from membership in the congregation and without assigning any reason, and pronounced a decree of alienation, forbidding the membership to further deal with the plaintiff socially, financially or pecuniarily, thereby excluding the plaintiff from his rightful membership in said congregation without a trial, without notice, and without knowledge of any charge upon which he was to be tried; and that in consequence of the wilful, malicious and wrongful acts of the defendants, and the decree so pronounced by them, the plaintiff was excluded from the membership of the church and the members were precluded, by virtue of the decree and rules of the church, from having further business or social intercourse with the plaintiff, and in consequence thereof, Joel Miller, who was a member of the church, and felt morally and religiously bound by the decree so pronounced, was then and there induced to and did break his contract with the plaintiff, and immediately caused the plaintiff to be evicted from the farm upon which he had made lasting and valuable improvements, whereby and by reason of the wrongful, malicious and wilful acts of the defendants in arbitrarily and illegally expelling plaintiff from the church organization and thereby inducing his father-in-law to break his contract with the plaintiff, plaintiff lost his interest in the farm to the damage of the plaintiff of $25,000.

In brief, the declaration charges that the defendants wrongfully expelled the plaintiff from the church and because of the expulsion plaintiff’s father-in-law, who was a member, refused to perform his contract with the plaintiff, and that the plaintiff was damaged, etc. The gist of the grievance, as alleged in the declaration, is wrongful expulsion from the church. It is alleged that such expulsion caused the father-in-law to break his contract to the plaintiff’s damages. Under the theory of the declaration, if the expulsion was proper, there would be no cause of action. That this theory is wrong is made apparent when we remember that even if the expulsion was right, still it would not justify the father-in-law in breaking the contract. From the standpoint of the civil courts, the defendants owed the plaintiff no duty in respect to his membership in the church. That is, even if he was wrongfully expelled, no remedy is given by a civil court. The question of whether he was rightfully or wrongfully expelled is within the exclusive jurisdiction of the church. (Fussell v. Hail, 233 Ill. 73 (77); German, etc. v. Deutsche Gemeinde, 246 Ill. 339; Presbyterian Church of Lincoln v. First Cumberland Presbyterian Church of Lincoln, 245 Ill. 90.) It is only the violation of a right for which a remedy is given. A man may suffer great loss and yet have no right violated. The law denominates such a loss damnum absque injuria. (Perry on Common Law Pleadings, p. 12.) In this case, the injury sustained was not an injury for which redress is given, in a civil court. That there was no duty owed is apparent from the further fact that between the act of the defendants and the damage sustained is the intervening belief of the plaintiff’s father-in-law, which caused him to prefer to evict the plaintiff rather than oppose the decree of the church. This belief breaks all connection between the alleged unlawful expulsion and the damage. Such damage would follow as surely in case of rightful as in case of wrongful expulsion, and a civil court cannot determine whether it was right or wrong.

The cases cited by appellant are not in point. They are based on the duty that the defendants owed the plaintiff not to interfere with his contract right with his father-in-law. The declaration does not charge the defendants with inducing the plaintiff’s father-in-law to break Ms contract with plaintiff. So far as the allegations of the declaration go, the defendants never knew of the contract. If the declaration charged that the defendants, in order to induce a breach of the contract between the plaintiff and his father-in-law, conspired to expel the plaintiff from the church, knowing that thereby a breach would be induced, then it would charge a violation of a civil right and would state a cause of action. (Doremus v. Hennessy, 176 Ill. 608; Anson’s Law of Contracts, sec. 279; Andrews Stephen on Pleading*, sec. 20, p. 35.)

The circuit court did not err in sustaimng the demurrer to the declaration and rendering judgment against plaintiff for costs.

Judgment affirmed.


text:
    Loyd McGinniss, Appellee, v. First National Bank of Canton et al., Appellants.
    1. Equitt, § 32

      —what constitutes adequate remedy at law. Although the general rule is that in all ordinary controversies concerning legal ownership or possession of chattels, replevin or trover furnishes a complete and adequate remedy, the existence of such remedy does not deprive equity of jurisdiction, unless such remedy he clear, complete and as practical and efficient to the ends of justice and its prompt administration as the remedy in equity.
    2. Equitt, § 34*—when relative inconvenience of remedy at law considered. On the question of granting or refusing equitable relief in controversies concerning the legal ownership or possession of chattels, where the defense of complete and adequate defense at law is interposed, the court will consider the relative inconvenience which would result from granting or refusing relief.
    3. Equity, § 32

      —when remedy at law inadequate. The refusal to dissolve a temporary injunction to restrain a hank from delivering a certificate of stock to one of the defendants, which complainant claimed had been assigned to.him by the deceased owner and had been wrongfully withheld from the decedent by such other defendant and was being wrongfully withheld from plaintiff and which the bahk was about to deliver to ’ such other defendant, was proper, and complainant should not have been relegated to an action of replevin or trover, as on the face of the bill he was entitled to the certificate as a muniment of his title.
    4. Equity, § 52*—when remedy at law to recover stock certificate' inadequate. By analogy to the rule that a bill in equity may be maintained to recover deeds and other instruments which are evidence of complainant’s title and have for that reason a peculiar value, the assignee of a certificate of stock, which he claimed was being wrongfully withheld from him by a bank for the benefit of a third party who had no right thereto, was entitled to maintain a bill to compel the transfer of such certificate, without first having had recourse to replevin or trover.
    Appeal from the City Court of Canton; the Hon. Harry C. Moran, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed April 29, 1919.
    Rehearing denied July 9, 1919.
    Burnett M. Chipereield and Claude E. Chiperfield, for appellants.
    Fred H. Snyder and A. E. Tape, for appellee.

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

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

   Mr. Justice Waggoner

delivered the opinion of the court.

The appellee filed his bill in chancery against the First National Bank of Canton, William D. Plattenburg, individually and as administrator of the estate of Lucien B. Farnsworth, deceased, and the heirs at law of Lucien B. Farnsworth, praying that the First National Bank of Canton and William D. Plattenburg, individually and as administrator, be directed by the decree of said court to transfer the possession of a certificate for 16,080 shares of stock of the Pirn Oil and Land Company, a corporation, to the complainant, and that the appellants be enjoined and restrained from disposing of or attempting to transfer the said stock to the defendant Joseph M. Farnsworth.

The bill alleges that Lucien B. Farnsworth died June 9,1917, and that William D. Plattenburg was appointed administrator on July 13, 1917; that in 1914, Lucien B. Farnsworth was ill at • Colfax, Iowa, and, believing himself to be in his last illness, made a gift, donatio causa mortis, to his brother, Joseph M. Farnsworth, of 16,080 shares of stock in the Pirn Oil and Land Company; that subsequently Lucien B. Farnsworth recovered from such illness and demanded from Joseph M. Farnsworth the return of the stock and directed Joseph M. Farnsworth to place it in a certain private depository box in the First National Bank of Canton; that Joseph M. Farnsworth neglected and refused to carry out the directions of Lucien B. Farnsworth touching the returning of the stock, but on the contrary deposited it with William D. Plattenburg, president of the First National Bank of Canton; that the stock is in the possession of William D. Plattenburg and the First National Bank of Canton, who claim no title or interest in it, but are holding the stock subject to the order of the defendant Joseph M. Farnsworth, of Bowling Oreen, Kentucky.

The bill further alleges that on June 9, 1917, Lucien B. Farnsworth, of New Mexico, being then the lawful owner of certificate No. 74 for 16,080 shares of said stock, made an assignment in writing (not on the face of the certificate, but on a separate paper.) to the complainant, by reason of which assignment the complainant, Loyd McOinnis, became and was vested with the title thereto, and is now vested with such title and to the right of possession; that complainant demanded the possession of the stock from the bank and from Plattenbnrg but they refused to deliver the same, claiming that they held it subject to the, order of Joseph M. Farnsworth; that the bank and Plattenburg are about to deliver the stock to Joseph M. Farnsworth and if the same is so delivered, complainant will be unable to recover it and may lose the same; that the fair cash value of said stock is about $10,000.

The bill was verified by complainant and an application made for a temporary injunction without notice. The judge of the city court of Canton, in vacation, ordered the writ of injunction to issue, and an injunction was issued restraining the First National Bank of Canton, William D. Plattenbnrg, as administrator and individually, and Joseph M. Farnsworth from disposing of the stock until further order of the court. The National Bank of Canton and William D. Plattenbnrg, individually and as administrator, filed a motion to dissolve the injunction for want of equity appearing on the face of the bill. The court denied the motion and the bank and Plattenbnrg prayed an appeal pursuant to the provisions of section 123, ch. 110, Hurd’s Rev. St. 1917. i

The appellants contend that it was error to refuse to grant the motion to dissolve the injunction because the bill fails to state facts showing that complainant is entitled to relief in a court of equity, and that defendant has an adequate remedy at law by replevin and trover.

It is pointed out by the appellants and appellee that the motion to dissolve an injunction for want of equity, apparent on the face of the bill, has the same effect as a demurrer, and that all the facts well pleaded in the bill are admitted. Durand v. Dyson, 271 Ill. 382 (392). Appellants thereby admit that the stock belongs to appellee and that they are about to deliver it to the defendant Joseph M. Farnsworth, of Bowling Green, Kentucky. This is a grievous wrong that appellants admit that they are about to do the appellee. Appellants, in effect, say that they are financially able to respond in damages to the appellee for the injury they intend to do him, and that they must therefore be allowed to consummate the wrong.

It is the general rule that in all ordinary controversies, concerning legal ownership or possession of chattels, the common-law actions of replevin or trover furnish a complete and adequate remedy. Long v. Barker, 85 Ill. 431; Pomeroy’s Eq. Jur. (3rd Ed.), sec. 177. The rule has been often repeated that a party can have no standing in a court of equity who has a plain and adequate remedy or defense at law. To allow a bill to be maintained in such cases, would be to deprive the defendants of a jury trial on a question where, by the rule of the common law and our constitution, they are entitled to such trial. Gore v. Kramer, 117 EL. 176 (182).

But the existence of a remedy at law does not deprive equity of jurisdiction unless such remedy be adequate. That is, it must be clear, complete, and as practical and efficient to the ends of justice and its prompt administration as the remedy in equity. People v. Bordeaux, 242 Ill. 327 (333); Smith v. Bates Machine Co., 79 Ill. App. 519 (526); Boyce’s Ex’rs v. Grundy, 3 Pet. (E. S.) 210 (215). The court will also consider the relative inconvenience which would result from granting or refusing the relief. Young v. Federal Union Surety Co., 183 El. App. 278 (280).

In many cases, exceptions to the general rule are recognized, and equity will interfere to compel the delivery of specific personal property on the ground that an adequate remedy is afforded, neither by an action at law to recover possession, nor by damages. Replevin does not always restore possession, and if it so fails, the owner is relegated to a judgment for the value of the property. “The equitable jurisdiction in these cases really rests upon the fact that the only relief which the plaintiff can have is the possession of the identical thing, and this remedy cannot with certainty be obtained by any common-law action. * * * This particular exercise of the jurisdiction extends for like reason, to suits to compel the delivery of deeds, muniments of title, and other written instruments, the value of which cannot, with any reasonable certainty, be estimated, in money.” 1 Pomeroy’s Eq. Jur. sec. 185.

A share certificate is merely the paper representative of an incorporeal right, and stands on a footing similar to that of other muniments of title. Connor v. Hillier, 11 Rich. (S. C.) 193, 73 Am. Dec. 105. It is not in itself property, but is merely the symbol or paper' evidence of property; hence the proprietary right may exist without a certificate. 10 Cyc. 389-390,-588. A share certificate, like warehouse receipts and other documents representing personal property, is a symbol by the delivery of which the shares in a corporation, which it describes, may be assigned. 10 Cyc. 589.

The appellee is entitled to the possession of the certificate -of stock as a muniment of his title. With the certificate and the assignment he can go to the corporation and procure a new certificate that will make him a shareholder. It is well settled that a bill in equity may be maintained to recover deeds and other instruments which are evidence of plaintiff’s title, and have for that reason a peculiar value. By analogy to this rule, the appellee is entitled to the delivery of the stock certificate to be used by him as evidence in establishing his status as a stockholder, and his bill may be maintained for that purpose. Lawler v. Kell, 6 Ohio Dee. 311 (stock certificate); McMullen v. Vanzant, 73 Ill. 190 (promissory note); Jackson v. Butler, 2 Atk. 306 (mortgage deeds); Duncombe v. Mayer, 8 Ves. 319 (title deeds); Beresford v. Driver, 14 Beav. 387, 16 Beav. 134 (documents relating to title to lands); Williams v. Carpenter, 14 Colo. 477 (title deeds); Stanton v. Miller, 65 Barb. 58 (deed in escrow); Baum’s Appeal, 113 Pa. St. 58 (deed in escrow); Goodale v. Goodale, 16 Sim. 316 (bill by executor to recover securities of zthe estate); Gibson v. Ingo, 6 Hare 112 (certificate of registry of ship); Gough v. Crane, 3 Md. Ch. 119 (choses in action); Schraft v. Wolters, 61 N. J. Eq. 467, 48 Atl. 782 (bill by executor to recover securities of the estate); Equitable Trust Co. v. Garis, 190 Pa. St. 544, 70 Am. St. Rep. 644 (title deeds); Kelly v. Lehigh Min. & Mfg. Co., 98 Va. 405, 81 Am. St. Rep. 736 (title deeds).

The court did not err in denying the motion to dissolve the injunction, and the decree will be affirmed.

Affirmed.


text:
    Mattie Stoner Smith, Defendant in Error, v. Thomas W. Smith, Plaintiff in Error.
    1. Husband and wife, § 217

      —when freedom of wife from fault necessary. A wife must be living separate and apart from her husband without her fault, in order to have the remedy in equity for reasonable support and maintenance provided for in Hurd’s Rev. St. 1917, ch. 68, sec. 22 (J. & A. f 6159).
    2. Husband and wife, § 217*—when entry of consent decree improper where wife not found free from fault. Where,- in a separate maintenance proceeding, the question of the right ■ of the wife to separate maintenance had been eliminated, it was improper to enter and subsequently modify a consent decree making certain provisions for the wife and providing for the custody and support of the children, and therefore a petition by the defendant for a modification of the decree was likewise improper.
    3. Husband and wife, § 252*—when disposition of custody of children not in power of court. The question of separate maintenance having been eliminated from the decree in a separate maintenance proceeding, the right of the court to make orders concerning the custody of the children did not exist, as the court could by virtue of the statute only make orders concerning such custody during the pendency of the suit, or upon a final decree where such separate maintenance was decreed.
    4. Equity, § 453*—how consent decree impeached. A consent decree can only be impeached by an original decree in the nature of a bill of review, and not by a petition for a modification thereof.
    Error to the Circuit Court of Macon county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed April 29, 1919.
    Hugh W. Housum and Fred Hamilton, for plaintiff in error.
    McDavid & Monroe, for defendant in error.

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

   Mr. Justice Waggoner

delivered the opinion of the court.

Mattie Stoner Smith, the defendant in error, filed a bill for separate maintenance in the circuit court of Macon county, at the January term, 1914, against the plaintiff in error, Thomas W. Smith. She afterwards filed an amended bill for separate maintenance, charging the plaintiff in error with drunkenness, ill-treatment and a failure to support her and their three children. The prayer of the amended bill was that the defendant might be compelled to provide separate maintenance for the complainant and said three children; that he be compelled to deliver possession of the premises occupied by him at that time and in which the parties had previously resided; that he be required to pay reasonable solicitor’s fees, and that the complainant have the care, custody and education of the children. The defendant answered denying that his wife was living separate and apart from him without her fault and all other material allegations in the amended bill, but alleged that it was the fault of the wife and that she was not entitled to relief and separate maintenance. No evidence was offered in support of the issues made by the amended bill and the answer thereto. A decree rendered June 15, 1914, recites that “it further appearing to the court that by a certain agreement entered into in writing between complainant and defendant under date of May 20, 1914, their property rights were adjusted and it was agreed, between complainant and defendant, that a consent decree might be entered in this cause, providing that defendant should pay the outstanding debts of the complainant and defendant; that all household goods in the homestead premises should be the property of the complainant ; that the custody of the children of the complainant and defendant should be given to the complainant, and that the defendant should pay to the complainant for the support, maintenance and education of their said three children, the sum of fifteen dollars ($15.00) per month until further order of the court,” and then follows the orders in accordance with the above recitals. There is no finding in the decree that the complainant is living separate and apart from her husband without her fault. She must be so living in order to have the remedy in equity for reasonable support and maintenance provided for in section 22, ch. 68, Hurd’s Rev. St. 1917. Johnson v. Johnson, 125 Ill. 510; Raab v. Raab, 150 Ill. App. 554 (558); Stidum v. Stidum, 164 Ill. App. 261 (266). No question has been raised as to the validity of the original decree. In the case of Thomas v. Thomas, 250 Ill. 354, wherein a bill was filed for divorce and a cross-bill asking for the custody of children only, the court said: “So far as the children are concerned, a court can, by virtue of the statute, only make orders concerning their custody during the pendency of the suit, or upon a final hearing where the divorce is decreed. * * * Neither a want of harmony between a husband and wife relating to the management of their children, nor the right of either to their custody, control, support or education, involves any equitable title or question of an equitable nature. The principles upon which equitable powers are exercised do not sustain the claim that a husband and wife may litigate with each other in a court of equity over the question which one shall have the custody of their children.”

The above-mentioned decree was on June 9, 1915, by consent of parties, modified so that the complainant and her three children were given the right to remove to the State of Texas to live, and the defendant required to pay her ninety dollars every six months instead of fifteen dollars each month, as provided in the original decree, for the support of the children. On December 9, 1916, complainant filed a petition for a rule on the defendant to show cause why he should not be attached for contempt in failing to make the payments for the support, maintenance and education of the children which he had been required to make. Defendant answered this petition and filed a petition to modify the decree that required such payments to be made, alleging that his consent to such decree had been procured by constructive fraud. These two petitions were, by the respective parties, amended and the cause finally heard upon the issues made under them. On November 8, 1917, a decree was entered dismissing both petitions for want of equity.

The plaintiff in error (defendant) has brought the case to this court and contends the circuit court should have found that there was constructive fraud in procuring his consent to the modification of the decree entered June 15, 1915, and modified the same. The original decree should not have been entered or modified, nor should the petition to modify in question have been granted. Consent decrees should be made only in respect to rights which are proper subjects for litigation. No such rights existed, in this case, after the question of the right of the wife to separate maintenance had been eliminated. Furthermore, a consent decree can only be impeached by an original bill in the nature of a bill of review, and not by a petition for a modification thereof. Krieger v. Krieger, 221 Ill. 479 (485); Hohenadel v. Steele, 237 Ill. 229 (234).

Decree dismissing petition to modify former decree will be affirmed.

Affirmed.


author: Mr.. Justice Waggoner

text:
    A. M. Kauffman, Appellant, v. David J. Plank et al., Appellees.
    1. Religious societies, § 39

      —when equity uAthout jurisdiction to compel restoration of membership. Equity had no jurisdiction, against bishops and ministers of a voluntary religious organization, to restore to membership a member who had been expelled pursuant to a church trial, where the bill alleged that under the decree pronounced against complainant the rest of the membership, including members of complainant’s family, were bound not to deal religiously, socially, financially or otherwise with complainant, but did not pray for relief as to financial loss.
    2. Religious societies, § 39*—when equity without jurisdiction to compel restoration of membership. Where the sole object of a bill which in effect was one to restore' complainant to membership in a voluntary religious organization from which he had been expelled pursuant to a church trial provided by the doctrines or rules of such organization, it followed that no civil or property rights were involved, and equity had no jurisdiction even though under the demurrer the defendants admitted that they practiced “tyranny, force, fraud, oppression or corruption” on complainant.
    Appeal from the Circuit Court of Douglas county; the Hon. Geobge A. Sentel, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed April 29, 1919.
    A. L. Gtiluom and Charles Troup, for appellant.
    P. M. Moore and John H. Chadwick, for appellees.

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

   Mr.. Justice Waggoner

delivered the opinion of the court.

The appellant filed his hill, as amendment to the bill and a supplemental bill, against David J. Plank, Andrew J. Mast, Joseph Schrock, Abraham Schrock and Eli Otto, appellees, in which he prays that the appellees may be restrained from further preventing the complainant to assemble with the other members of the Amish Mennonite Church at the homes oof the various members of the congregation, and to worship in said homes with said membership, and the said defendants and each of them may be restrained from obstructing, interfering with, forbidding, or in any manner preventing the appellant from worshiping with the members of said church at the various homes of the members, or from preventing him from worshiping with the membership of said church at his own home, and further, to prevent them from in any manner interfering with the appellant’s rights as a member of said church.

The appellees filed a demurrer, in the circuit court, which was sustained by it. They admit that in 1914 the complainant and the defendants were members of the Amish Mennonite Church, a voluntary religious organization, the membership of which live in the western part of Douglas county and the eastern part of Moultrie county, Illinois; that said organization is not incorporated, and has no printed constitution and by-laws, but its principles, creed, doctrines and code of discipline rest wholly in custom; that the defendants, David J. Plank and Andrew J. Mast are bishops, and the defendants, Joseph Schrock, Abraham Schrock and Eli Otto, are ministers in said church; that said organization has no church ground or building separately set aside and dedicated as a place for worship, but the meetings are held in the homes of the members; that the church discipline requires each member to dedicate his dwelling to the purpose of holding meetings; that under the doctrines of said church all matters in dispute of an ecclesiastical nature which arise between members are settled by a church trial, at which all members of the congregation, excluding the parties to the controversy, are judges; that under said rules no member should be expelled without first being duly charged with an offense against the principles, creed, doctrines or discipline of the church, and without being duly notified of the charge, its nature, the time and place of the trial, and without an opportunity to he heard and introduce evidence in his own defense; that it was the doctrine of said church that when any one was duly excluded from membership a decree of separation should be pronounced against him, and thereupon he would not be permitted to have any religious, social, financial, or other relations or intercourse with the rest of the membership, including such members of his own family who were members of the church; and the rest of the members of the church were bound not to have any business or other dealings with said member so excluded, and should not religiously, socially, financially or otherwise, deal with or assist such person so excluded, for the purpose of punishing Mm for Ms offense against the church; that appellant is a member and was in 1914 a member and had been a member in excellent standing for approximately 40 years previous thereto; that appellant has violated none of the principles, creed and doctrine of said church; that in 1912 the defendant David J. Plarik entered into a written contract with one named Trexler for the transfer of certain real estate; that Plank refused to perform Ms part of the contract and Trexler, being a close neighbor to appellant and not a member of said church, requested appellant to use Ms influence with Plank to secure the performance of said contract; that appellant was under the belief that Plank was seeMng to avoid his obligation under said contract, and pursuant to a rule of said church, which provided that one knowing of a brother in error should admonish him, the appellant undertook to influence Plank to perform said contract in order to save Plank’s reputation for fair dealing and the reputation for fair dealing of said religious sect; that appellant was unable to induce Plank to perform said contract; that appellant and Plank differed as to the proper construction of the contract, and the question of the construction of the contract was brought before' a meeting of the congregation; that at such meeting a committee was selected who construed the contract against Plank; that Plank still refused to adjust said matter with Trexler, thereupon the congregation met again at Plank’s house to reconsider the proper construction to be put on the contract, and a special committee then chosen came to the conclusion that both constructions were probably reasonable constructions and requested appellant to grant Plank the privilege of construing the contract, whereupon appellant refused, and thereupon, and only because appellant refused to accede to said request, the defendants wilfully, maliciously and wrongfully usurped power and arbitrarily constituted themselves an unauthorized tribunal, and then and there went into executive session, the object of which was unknown to appellant, and later emerged into the presence of the congregation, and without first having permitted- a vote by the members of the congregation, announced they had expelled appellant without assigning any reason, and pronounced a decree of separation forbidding appellant to worship with said congregation wherever it might assemble, and forbidding the entire membership to deal with appellant, or have any relations with Mm religiously, socially or pecuniarily; that complainant is the father of several cMldren who are members of. said church; that by reason of said separation decree complainant has been deprived from having any filial relation with said children; that defendants by said acts have ruined appellant financially and deprived him of much money and property; that appellant is about seventy years old; that he has lived in Amish Mennonite environment during his entire life; that his church life has been the most important and vital factor of his existence; that since Ms- trouble with Plank his wife has died; that the separation from his children and church members has broken appellant in heart and spirit ahd is menacing his health of body and mind; that there is no appellate tribunal in said church and the action of the defendants is not appeal-able; that appellant went to a meeting at the home of John Stutzman to worship and defendant Plank ordered him to leave, and to prevent a breach of the peace appellant was obliged to leave at once.

The defendants admitting all the foregoing as facts, the question presented is, can a court of equity grant the relief prayed?

The defendants cite Fussell v. Hail, 233 Ill. 73 (77), and quote the following as their defense: “The civil courts afford no remedy for any abuse of ecclesiastical authority which does not violate a civil or property right. Church tribunals ought tó perform their functions honestly, impartially and justly, with due regard to .their constitutional powers, sound morals and the rights of all who are interested; but if tyranny, force, fraud, oppression or corruption prevail, no civil remedy exists for such abuse except where it trenches upon some property or civil right.”

It is sufficient then, for the purposes of this ease, to decide whether the “tyranny, force, fraud, oppression or corruption,” that defendants admit that they practiced on appellant, invade any of appellant’s civil or property rights.

It is to be observed that the prayer of the bill is to restore the complainant to membership in the church. No relief is asked with reference to the financial loss sustained by appellant as a result of the illegal boycott established by the defendants. The sole object of this bill being to restore the complainant to membership in the church, it follows that no civil or property rights are involved. Presbyterian Church of Lincoln v. First Cumberland Presbyterian Church of Lincoln, 245 Ill. 74 (90). We cannot, in order to give this unfortunate complainant relief, involve the State in the grave questions that would result from a failure to maintain inviolate the boundary between church and State. Chase v. Cheney, 58 Ill. 509 (536, 537). The circuit court did not err in sustaining the demurrer.

Decree affirmed.

Affirmed.


text:
    Robert Carew, Appellant, v. Eli Miller, Trustee, and C. B. Munday, Appellees.
    1. Judgment, § 681

      —what is effect of special replication to plea of former adjudication. Where plaintiff filed a special replication to a plea of former adjudication by a foreign court, filed in an equity case, he admitted the entire sufficiency of the plea, as his special replication seeking to avoid the effect of the adjudication was, under equity rules, treated as a general replication, and the only question then remaining was whether the chancellor erred in finding that the plea had been proved; and as complainant consented to a trial on the plea and offered in evidence the proceedings of such foreign court, he placed himself where he admitted the legal sufficiency of the plea and then offered in evidence the proof of the truth of the plea.
    2. Judgment, § 681*—rule that special replications not permissible in chancery applied to special replication to plea of former adjudication. The rule that special replications are not permissible in chancery and, if filed, can only be treated as general replicar tions, applied, where complainant replied specially to a plea of former adjudication in an equity case, setting up matter in avoidance of the adjudication, and such replication was treated as a general one and as an admission of the legal sufficiency of the plea.
    Appeal from the Circuit Court of Montgomery county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1918. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed April 29, 1919.

      Paul McWilliams and Lane, Dryer & Brown, for appellant.
    Miller & McDavid, for appellees.

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

   Mr. Justice Waggoner

delivered the opinion of the court.

The appellant filed a bill in the circuit court of Montgomery county against the appellees for an accounting in which he alleges that he and the appellee,

C. B. Munday, entered into a verbal contract of partnership in the year 1909, whereby appellant became the manager of 400 acres of farm land in Kossuth county, Iowa; that appellant went upon the land and managed it from January, 1909 to January, 1911; that he fenced the land, put in 6 miles of tile and rebuilt certain elevators; that he was to receive one-half of the increase in the value of the land, and the land was not to be sold until a satisfactory price could be obtained; that by agreement appellant left the farm in January, 1911; that in May, 1914, C. B. Munday made a contract of sale to one Joseph J. Sherman for $36,000; that the cost of the land was $18,800; that the difference of $17,200 was profit, to which appellant 'was entitled to the one-half thereof or $8,600 subject to a deduction of the one-half of the amounts expended for tile, stock and equipment, which when so deducted from $8,600 would leave $5,320 due him; that he also was entitled to one-half the value of certain stock which had been sold for $1,390, or $695 which added to $5,320 made the balance due him $6,015.

Appellant alleges that in 1914, appellee, O. B. Mun-day, was adjudged a bankrupt by the United States District Court for the Southern District of Illinois; that a composition of creditors was had' and appellee, Eli Miller, appointed trustee under the composition; that Eli Miller completed the contract of sale of the land to Joseph J. Sherman, and has in his hands $6,700 which appellant claims is not a part of the bankrupt’s estate and was never in the hands of the trustee in bankruptcy.

On November 16, 1916, O. B. Munday filed an answer denying all the allegations of the bill except that he had been adjudged a bankrupt, and that there was a composition of creditors and Eli Miller appointed trustee. The answer avers that Robert Carew never claimed to have a partnership interest, but filed a claim with the referee in bankruptcy against O. B. Munday, and that such claim is still pending.

On November 20, 1916, Eli Miller, trustee, filed an answer substantially the same as that of C. B. Mun-day.

On July 28, 1917, Eli Miller, trustee, and C. B. Munday filed a plea alleging that in 1915, in the District Court of Kossuth county, Iowa, Joseph J. Sherman filed a bill against Eli Miller, trustee and C. B. Munday, in which suit Robert Carew filed an intervening petition charging that he was entitled to an undivided interest in the land in question; that his interest was one-half of the profits and that his equity was of the reasonable value of $8,500 and prayed that • his interest be fixed by the court, and Joseph J. Sherman ordered to pay, out of the purchase price, the said sum of $8,500 to Robert Carew; that he prayed for relief in the same manner and for the same matters as he now prays in his present bill; that on January 10, 1916, the court found that Eli Miller, trustee, was entitled to the remainder of the proceeds of the sale due from Joseph J. Sherman, and that Robert Carew was not entitled to said proceeds, and it was decreed by the court that Joseph J. Sherman pay direct to EM. MiMer, trustee, the remainder of the purchase price of the land, and that said decree and proceedings remain in fuH force.

To the foregoing plea, Robert Carew filed a special replication setting ont the petition filed by Joseph J. Sherman, together with the order of the court, alleging that such order was entered in vacation, and setting out certain provisions of the statute of Iowa under which appellant claimed that the court had no power to enter such an order in vacation; also setting out other provisions of said statute, under which he claimed that his attorneys had no power to consent (as they had done) to the entry of such an order to his prejudice; and that such order was null and void for the reason that it had been entered in vacation without his consent. Two additional special replications were filed. The three replications cover thirty-six typewritten pages of the record. The appellees filed rejoinders to the replications, traversing the allegation that Robert Carew did not consent to a hearing in vacation, and concluding to the country. Robert Carew filed a special demurrer to the rejoinders.

The case came on for hearing on August 8, 1918, and a final decree was entered in the circuit court of Montgomery county, finding that C. B. Munday was adjudged a bankrupt ón June 17,1914; that he effected a compromise settlement with his creditors, which was confirmed by the United States District Court; that upon the approval of the composition, Eli Miller was appointed trustee, and that- a deed was made to him by the Sangamon Loan & Trust Company, as the trustee in bankruptcy, together with a deed by C. B. Munday and others, conveying all the property to Eli Miller, trustee; that notes were issued to the composition creditors, and that under said proceedings in bankruptcy, the property in question was under the control of the United States District Court of the Southern District of Illinois, which court now has jurisdiction and control of the funds in the hands of Eli Miller, trustee; and it was adjudged that the circuit court of Montgomery county does not have jurisdiction of the funds in the hands of Eli Miller, trustee, and cannot order an accounting for the reason that the said fund is under the control of the United States District Court.

As to the plea of former adjudication, the court found that Joseph J. Sherman filed a bill in the District Court of Kossuth county, Iowa; that Robert Carew filed an intervening petition setting out the same claim that he now presents, and that the said District Court entered an order adjudging that Eli Miller, trustee, was entitled to the proceeds of the sale due from Joseph J. Sherman, and that said order is in full force and effect. It was adjudged by the circuit court of Montgomery county that Robert Carew was barred by said former adjudication. The appellant, Robert Carew, has appealed from the decree of said circuit court.

The appellant made no objection to a plea being filed, after the appellees had answered, but consented to the procedure and participated therein by filing replications thereto and proceeding to a hearing thereon. By replying to the plea the appellant admitted its entire sufficiency, and the only question now presented is, did the chancellor err in finding that the plea had been proved. 16 Cyc. 296, note 30; Perry v. United States School Furniture Co., 135 Ill. App. 1 (2).

Special replications are not permissible in chancery and, if filed, can only be treated as general replications. Shaeffer v. Weed, 8 Ill. 511 (512); White v. Morrison, 11 Ill. 361 (366). Therefore this case falls into a very narrow compass. The appellant consented to a trial on a plea of former adjudication by the Iowa State court. He admitted the entire legal sufficiency of that plea by filing replications to it, and staked the result on its falsity in fact. That this plea, as pleaded, is proved cannot be questioned, by appellant, as he offered in evidence the proceedings in the Iowa court. Appellant placed himself where he admitted the legal sufficiency of the plea setting up a former adjudication in Iowa, and then offered in evidence the proof of the truth of the plea.

The decree of the circuit court is affirmed.

Decree affirmed..


text:
    Pike County Mutual Life Association et al., Appellees, v. Cloa Berry, Appellant.
    1. Insurance, § 836

      —when divorced wife does not take proceeds of "beneficiary policy. Under a beneficiary policy issued for the benefit of the wife and children of a membér who was unmarried at the time, the intended beneficiaries were those who at the time of the death of the insured sustained the relation to him of wife and children; and therefore decedent’s wife at the time of his death, and not his divorced wife, took the part intended for the wife.
    2. Insurance, § 836*—when divorced wife not entitled to recover back dues paid by her. The payment of dues made by a divorced wife after the divorce upon a benefit insurance policy issued for the benefit of the wife and children of her former husband, were not made with the expectation of receiving any part of the fund herself, but were voluntarily made in the interest of her children; and therefore she was not entitled to recover back the amount so paid, in the bill of interpleader in question.
    3. Insurance, § 836*—when divorced wife entitled to recover back dues paid by her. Dues paid by a wife up to the time of her divorce upon a benefit policy issued upon the life of her husband in favor of his wife and children, without naming them, were awarded to her in the bill of interpleader in question, in which the wife living at the time of the insured’s death was held entitled to take the share of the wife.
    4. Insurance—how i proceeds of life policy payable to wife and children divided. Under a life insurance policy payable to the wife and children of the insured, the beneficiaries take equally, per capita.

      Appeal from the Circuit Court of Pike county; the Hon. Habry Higbee, Judge, presiding. Heard in this court at the October term, 1918.
    Reversed and remanded with directions.
    Opinion filed April 29, 1919.
    Marsh & Rice, for appellant.
    W. E. Williams and A. Clay Williams, for appellees.

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

   Mr. Justice Waggoner

delivered the opinion of the court.

The appellee, Pike County Mutual Life Association, is a fraternal beneficiary society organized and doing business for the purpose of furnishing life indemnity to its members. On March 15, 1904, it issued a beneficiary certificate to George C. Berry, one of its members, who at that time was unmarried, but the certificate designated the wife and children of the member as beneficiaries, and provided for the payment, at the death of the insured, of an amount not to exceed $2,000, to the wife and children, if living, if not, to the legal heirs of the insured. On June 21, 1904, George C. Berry was married to Adelle Retalie and to them were bom two children, both of whom are minors, and represented in this suit by Adelle Berry, their guardian. Adelle Berry remained the wife of George C. Berry until April 25,1914, at which time she obtained a decree of divorce. George C. Berry on September 8, 1916, was married to appellant. No change of beneficiaries was ever made in the certificate. George C. Berry died July 29, 1917, leaving Adelle Berry, a divorced wife, appellant, Cloa Berry, his widow, Thomas R. Berry and Marjorie M. Berry, his children.

At the death of the insured, appellant, claiming to be entitled to one-third of the amount of said certificate, brought suit in the circuit court of Warren county, Illinois, against the Pike County Mutual Life Association, to recover the same. Adelle Berry, individually and as guardian of Thomas R. Berry and Marjorie M. Berry, brought a similar suit in the circuit court of Pike county, Illinois, to recover the whole of said certificate.

With these two suits pending, appellee, Pike County Mutual Life Association, filed a bill of interpleader setting up the facts, making all interested parties defendants, asking that defendants interplead, settle and adjust their demands among themselves; further asking permission to bring the sum of $2,000 into court for the benefit of such of the defendants as the court determined was entitled thereto, and that the defendants be restrained by injunction from the further prosecution of said actions at law.

The trial court found, among other things, that under a provision of the constitution of the Pike County Mutual Life Association a change in beneficiaries may be made by a member in good standing; that no such change was made by George C. Berry; that assessments amounting to $75.19, and dues amounting to $18, on said benefit certificate from June, 1908 to July 29, 1917, the date of the death of George C. Berry, were paid by Adelle Berry, and that when Adelle Berry procured' a divorce she was no longer a beneficiary under the terms of said certificate, and entered a decree directing the payment of $93.19 to Adelle Berry, as reimbursement for the dues and assessments paid by her, and the rest, residue and remainder of the said benefit fund be paid to Adelle Berry as guardian of Thomas R. Berry and Marjorie M. Berry. The decree required the appellant to pay the cost of suit, and she appealed to this court.

In the argument of this case, counsel for the respective parties agree that the two questions for determination are whether or not Adelle Berry is entitled to be reimbursed out of the benefit certificate in question for dues and assessments paid by her, and whether or not Cloa Berry is entitled to any part of the benefit fund. Appellee’s answer to the first question is that Adelle Berry is entitled to be reimbursed out of the benefit fund to the extent of all dues and assessments paid by her, from June, 1908 to the death of George C. Berry, amounting to $93.19. Appellant’s contention is that she is not entitled to receive anything for payments made subsequent to April 25,1914, the date of the decree of divorce.

The benefit certificate is not payable to Adelle Berry but to the “wife and children” of the insured. When the divorce was granted she ceased to be G-eorge C. Berry’s wife and no longer bore the relation to him that is specified in the certificate and no longer had an interest in it. Any payment of dues, after the divorce, certainly were not made by Adelle Berry with the expectation of receiving any part of the fund itself, but were voluntarily made in the interest of her children. The mere voluntary payment of dues and assessments does not give a vested equitable interest or any right in the proceeds of the benefit certificate. Modern Woodmen of America v. Scott, 201 Ill. App. 144 (148).

In reference to the second question for determination, counsel for appellees take the position that after Adelle Berry is reimbursed the remainder of the fund should be divided between the two children, while opposing counsel maintain that, after proper reimbursement to Adelle Berry is made the remainder of the fund should be divided among appellant and the two children by giving one-third to each of them.

In the benefit certificate under consideration, the beneficiaries are not named but described. At the time of its issuance they did not exist. The intended beneficaries are described as those who at the time of the death of the insured sustain the relation to him of wife and children. If none such were living, then to Ms legal heirs. Who are the beneficiaries is determined at the death of the insured. (De Benio v. Catholic Order of Foresters, 194 Ill. App. 616; Burr v. Royal League, 193 Ill. App. 238.) The insured died leaving appellant, Oloa Berry, his wife, Thomas B. Berry and Marjorie M. Berry, Ms children, who are described in the benefit certificate as beneficiaries, and are therefore entitled to the fund the same as if they had been specifically named therein.

Under the facts in this case we hold that of the funds in question, Adelle Berry "should receive the amount of dues and assessments paid by her prior to April 25,1914, and that Cloa Berry, Thomas B. Berry and Marjorie Berry are each entitled to one-third of the remainder. Under a life insurance policy payable to the wife and children of the insured, the beneficiaries take equally, per capita. (Felix v. Grand Lodge Ancient Order United Workmen, 31 Kan. 81, 47 Am. Rep. 479; Kaemmerer v. Kaemmerer, 137 Ill. App. 28; Sauerbier v. Union Cent. Life Ins. Co., 39 Ill. App. 620.)

The decree of the circMt court is reversed and the cause remanded with directions to ascertain the amounts due the above-named persons as herein indicated, and to enter a decree directing the payment thereof without cost to appellant.

Reversed amd remanded with directions.


text:
    The People of the State of Illinois ex rel. John Meier et al., Appellees, v. George Jenner et al., Appelants.
    1. Elections, § 168

      —when courts have jurisdiction of contest. A proceeding to contest an election is purely statutory, and in the absence of a statute conferring jurisdiction, the courts are without power to entertain a proceeding of that kind.
    2. Intoxicating liquors, § 10*—jurisdictional character of verification of petition for certiorari to contest election. The proper verification of a petition for certiorari to contest an election under section 19 of the Anti-Saloon Territory Act (J. & A. jf 4655) is jurisdictional.
    3. Intoxicating liquors, § 10*—jurisdictional character of bond for costs of election contest. The filing of a proper bond for costs as a condition precedent to filing a petition for certiorari to contest an election, under section 19 of the Anti-Saloon Territory Act (J. & A. jf 4655), is jurisdictional.
    4. Intoxicating liquors, § 10*—when security for costs of election contest does not comply with statute. The security for costs provided for by section 1 of the Costs Act (J. & A. If 2715) is not a bond for costs, as a bond must be under seal; and hence the filing of a security for costs without a seal was not a compliance with section 19 of the Anti-Saloon Territory Act (J. & A. If 4655), requiring the filing of a bond for costs as a condition precedent to the filing of a petition to contest an election.
    5. Intoxicating liquors, § 10*—when verification of petition in election contest is insufficient. An affidavit to a petition for certiorari to contest an election, stating that the matters and things in the petition stated were true except as to such matters as were therein stated to be on information and belief and as to such affiants believed them to be true, did not constitute the positive verification of the petition required by section 19 of the Anti-Saloon Territory Act (J. & A. If 4655).
    Appeal from the Circuit Court of Logan county; the Hon. Thomas M. Harris, Judge, presiding. Heard in this court at the October term, 1918. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed April 29, 1919.

      A. M. Fitzgerald, Hugh Hunter and Adolph Bernard, for appellants.
    Smith & Lincoln and Beach & Trapp, for appellees.

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

   Mr. Justice Waggoner

delivered the opinion of the court.

The appellees filed a petition for certiorari in the Circuit Court of Logan county to quash the record of the judgment of the County Court of Logan county, entered in a proceeding to contest a local option election. The Circuit Court took jurisdiction of the case and quashed the record of the County Court. This appeal is from the judgment of the Circuit Court.

The proposition “Shall this town become anti-saloon territory?” was submitted to the voters of Mount Pulaski at the election held April 2, 1918. The town voted dry by a majority of 272. On April 12, 1918, the appellants filed a petition in the County Court to contest the validity of said election. It is alleged in the petition for certiorari that the petition filed by appellants in the County Court was -not a verified petition, nor was any bond for cost filed with it.

The purpose of the common-law writ of certiorari is to bring before the court granting the writ the record of the inferior court for inspection, and the only questions that can be determined are, did the inferior court have jurisdiction to act; and in acting did it exceed its jurisdiction or fail to proceed according to the essential requirements of law, and on the return of the writ being made by filing the record the trial is bad on the record alone. Joyce v. City of Chicago, 216 Ill. 466 (469).

A proceeding to contest an election is purely statutory, and in the absence of a statute conferring jurisdiction, the courts are without power to entertain a proceeding of that kind. Shirar v. Elbridge Township, 249 Ill. 617 (618). The jurisdiction of the County Court, in election matters, is derived from the statute, and in its exercise the court is an inferior court of limited jurisdiction. People v. McWeeney, 259 Ill. 161 (170).

Section 19 (J. & A. If 4655) of the Anti-Saloon Territory Act provides: “Any five legal voters of any political subdivision in which an election shall have been held as provided for in this act, may, within ten days after the canvass of the returns of such election and upon filing a bond for costs, contest the validity of such election by filing a verified petition in the County Court of the county in which such political subdivision is situated, setting forth the grounds for the contest. ’ ’

By the plain provisions of section 19, a verified petition is required. If the petition was not verified, then the County Court did not acquire jurisdiction. Daugherty v. Carnine, 261 Ill. 366. Section 19 also plainly requires a bond for costs, as a condition precedent to filing a petition, and unless such a bond was filed, the County Court did not acquire jurisdiction. Saylor v. Duel, 236 Ill. 429 (436); Cockrell v. Rush, 149 Ill. App. 467. In this case the affidavit, attached to the petition, stated that the matters and things therein stated are true except as to such matters and things as are therein stated to be alleged upon information and belief, and as to such they believe them to be true. The appellants rely upon the case of Farrell v. Heiberg, 262 Ill. 407 (410). The statute then under consideration required that the petition “shall be verified by affidavit in the same manner as bills in chancery may be verified.” Section 19 requires the filing of a “verified petition.” We think the rule announced in King v. Haines, 23 Ill. 340 (341), is applicable, and the petition must be positively verified. A verification, on information and belief, is not sufficient.

George Jenner? one of the persons filing the petition to contest the election, also signed and filed an instrument substantially in the form provided by section 1 of the Costs Act (J. & A. ft 2715). Such an instrument is termed by the Costs Act “security for costs.” It is not a bond for costs, as a bond must be under seal. Chilton v. People, 66 Ill. 501 (503).

The County Court was without jurisdiction for the reason that the petition was not verified positively and no bond for costs was filed as is required by the statute. It therefore follows that the Circuit Court did not err in quashing the record.

Judgment affirmed.

Affirmed.


author: Mr. Justice Eldredge

text:
    Hibernian Banking Association, Trustee, Appellant, v. Helen D. Roseboom, Appellee.
    1. Trusts, § 142

      —when trustee under mil liable for commission of agent finding purchaser for land. A trustee under a will, with-power to sell real estate, had power to employ an agent to find a purchaser, and was liable to him for commissions upon finding a purchaser.
    2. Trusts, § 137*—when trustee under will does not delegate powers of sale to agent. The rule that a trustee under a will cannot lawfully delegate his powers of sale to an agent had no application to the employment by a trustee of an agent to find a purchaser, where such agent neither conveyed the lands as agent of the trustee, nor executed the contract on the trustee’s behalf.
    3. Trusts, § 137*—when trustee may employ solicitors and agents. Although trustees may not in general delegate their powers, yet they may employ solicitors and agents to do ministerial acts, such as the sale of property and acts of that nature, the trustees retaining a supervisory power over them.
    4. Trusts, § 221*—when trustee entitled to credit for payment

      of commission to agent. An agent employed by a trustee to sell real estate had the right to retain her commission and remit the balance to the trustee; and her compensation being a legitimate debt of the trust estate and one which the trustee had authority to contract as such, such trustee was entitled to receive credit in its accounting of the trust funds for such payment.
    5. Tbusts, § 221

      —when trustee may indemnify himself out of estate. A trustee who is compelled to discharge the debt of the trust estate in his personal capacity may lawfully indemnify himself out of such estate.
    Appeal from the Circuit Court of Coles county; the Hon. John H. Marshall, Judge, presiding. Heard in this court at the April term, 1918.
    Affirmed.
    Opinion filed July 9, 1919.
    J. W. and E. C. Craig and Thomas B. Marstoh, for appellant.
    Bryah H. Tmmsr, for appellee.

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

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

   Mr. Justice Eldredge

delivered the opinion of the court.

The Hibernian Banking Association of Chicago, acting as trustee under the last will and testament of Cora Anderson Boseboom, deceased, brought this suit in assumpsit against Helen D. Boseboom to collect the sum of $850, part of the proceeds of the sale of certain real estate belonging to the trustee estate, together with accrued interest. The cause was heard before the court without a jury and a judgment was rendered in favor of the defendant, appellee in this court.

The land in question consisted of 320 acres located in Bolivar County, Mississippi. The land was sold through the efforts of appellee for $17,000 cash and was conveyed by warranty deed December 31, 1915, by appellant to one S. D. Knowlton. Appellee collected the money and paid the same to appellant, less her expenses in having the abstract brought down to date, and a commission of 5 per cent of the purchase price, being the sum of $850 sued for. Two principal contentions are made by appellant and urged as reasons why the judgment should be reversed. It is first submitted that the evidence does not show an express contract between the parties that appellant should pay to appellee 5 per cent of the purchase price as her commission in procuring the sale of the land, and there being no evidence of what such services were reasonably worth, she cannot recover. The other contention is, that, if it should be conceded- that such an express contract is established by the evidence, then appellee had no lawful right to retain her commission out of the proceeds of the sale because the latter were trust funds and- the- entire amount thereof should have been delivered to the trustee, and her only recourse would be an action against the trustee personally on such promise.

The evidence consists chiefly of numerous letters and telegrams between E. B. McFadden, secretary of appellant, and appellee. No useful purpose would be. served in referring to these in detail, but, in our opinion, they fully establish an express contract between the parties that appellee should receive 5 per cent commission on the purchase price .for securing a sale of the lands in question.

The evidence fully establishes the fact that the sale of the lands was solely brought about through the conscientious and successful efforts of appellee. It was stipulated in the trial that the trustee under the will had authority-to sell, rent or lease the property in controversy and to employ agents to sell and procure buyers. It is insisted by counsel for appellant that appellee is not entitled to any commission for the reason that the trustee could not lawfully delegate its powers of sale to her as an agent. The legal proposition presented is undoubtedly correct, but it has no application to the facts in this case. Appellee did not, herself, convey the lands as the agent of a trustee nor did she execute any contract on the trustee’s behalf for the sale thereof. All she did. was to procure a buyer for the same at a price and on the terms agreed to by appellant. In the case of Coleman v. Connolly, 242 Ill. 574, the court, in discussing a similar proposition, said: “The power of sale was vested by the will in the trustees and executrices. It was a personal trust and confidence reposed in them and could not be delegated to an agent. It would have been competent for the trustees and the executrices to employ an agent to find a purchaser, but the sale and contract therefor could only have been made by them.” In Gillespie v. Smith, 29 Ill. 473, the court held: “We know of no rule of law forbidding the absolute owner of land from employing an agent to conduct the mechanical parts of a sale, or acting as the auctioneer, even if the legal title is held on a trust declared. It is the uniform practice to employ an agent to advertise and sell lands under such deeds. It is no delegation of any trust confided to the trustees. Although trustees may not in general delegate their powers, yet that they may employ solicitors and agents to do ministerial acts, such as the sale of property and acts of that nature, the trustees retaining a supervisory power of them, has never been questioned.”

Appellant could lawfully employ appellee to procure a purchaser of the lands in question, and an employment necessarily includes an agreement to pay reasonable compensation for the services performed. Appellee could undoubtedly have sustained an action for her compensation against appellant in its personal capacity, and in such case, if appellant should have been thus compelled to discharge the debt of the estate, he might lawfully have indemnified himself out of the same. Sperry v. Fanning, 80 Ill. 371. Appellee had the right to retain her commission and remit the balance to appellant, and her compensation being a legitimate debt of the trust estate and one which appellant, as trustee, had authority to contract as such, it is entitled to receive credit in its accounting of the trust funds for the payment thereof.

Other errors have been argued which we do not consider of sufficient merit to warrant a discussion.

The judgment of the Circuit Court is affirmed.

Affirmed.


author: Mr. Justice Eldrbdge

text:
    Henry Thoma, Appellant, v. Leonard Reisch, Appellee.
    1. Partnership, § 80

      —what is interest of partner in property of firm. The interest of a partner in the property of a copartnership comprising two partners is not the ownership of an undivided half interest in each particular asset, but is one-half of the surplus which remains after payment of the partnership debts and the settlement of accounts between the partners.
    2. Partnership, § 87*—what presumption obtains on sale by partner to copartner of interest in firm property. A partner who sells his interest in the firm property to his copartner cannot be presumed, in the absence of any agreement, to have sold his own indebtedness to the firm,'but it will be presumed that such debt was taken into consideration in fixing the selling price. (Jones v. Bliss, 45 Ill. 143, overruled by later cases.)
    3. Partnership, § 87*—what presumption arises on sale by partner to copartner of interest in firm property. The general rule is that when one partner sells his interest in the firm property to the other, the presumption arises that, in the valuation upon which the sale was based, the debt of the selling partner is taken into account, and it cannot be assumed that such partner sold or intended to sell his own indebtedness to the firm, if any existed.
    4. Partnership, § 87*—what partner not required to account for on sale of interest to copartner. Where one partner in April submitted, and the other partner accepted, a proposition to sell his interest, and an agreement was accordingly made under which the purchaser obtained all assets including book accounts, and assumed all debts, and where no inventory had been taken since the preceding January, the selling partner was not required to account for merchandise and money taken by him from the firm and for assets, which he charged against himself in favor of the firm, during the period between the taking of inventory in January and the execution of the dissolution agreement in April.
    Appeal from the Circuit Court of Sangamon county; the Hon. E. S. Smith, Judge, presiding. Heard in this court at the April term, 1918.
    Affirmed.
    Opinion filed July 9, 1919.
    John G-. Friedmeyer, for appellant.
    Conkling & Irwin and William L. Patton, for appellee.

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

   Mr. Justice Eldrbdge

delivered the opinion of the court.

A demurrer to the bill filed by appellant was sustained in the court below and the latter abiding by his bill, the same was dismissed for want of equity and a decree entered to that effect, to reverse which this appeal is prosecuted.

It is alleged in the bill, in substance, that appellant and appellee entered into a partnership in May, 1881,-to conduct a dry goods, cloak and millinery business in Springfield, Illinois, under the firm name of Reisch & Thoma, and that said business was conducted under that name until the latter part of April, 1910; that appellant mainly devoted Ms time to the purchasing and selling of merchandise and that appellee mainly devoted his time to the finances of said business and to keeping the books of account; that an inventory and account were taken and finished on or about January 15, 1910, and showed that the interest of appellee in said business at said time was the sum of $48,607.50, and that the interest of appellant was the sum of $34,556.50, and that no inventory was taken before April 26th and April 29th, 1910, but that the offer and acceptance hereinafter stated were based and made on that inventory and statement; that appellee on or about April 26,1910, presented a written proposition to terminate said partnership in the words and figures as follows:

“Estimated interests of the Partners in the Firm of Reisch & Thoma at this Date...

“Interest of L. Reisch..................$48,607.50

Deduct 20% ...................... 9,721.50

$38,886.00

“Interest of Henry Thoma..............$34,556.50

Deduct 20%....................... 6,911.30

$27,645.20

“I propose as follows:

“1st. I will sell you my interest in the business as it is at this date, April 26, 1910, for $38,886.00 in cash, you to have all the stock, accounts, receivables and all other assets of the firm, including leasehold interests, and you to pay all the indebtedness of the firm and to hold me free from any liability therefor, or

“2nd. I will buy your interest in the business as it is at this date, April 26, 1910, for $27,645.20 in cash, I to have all other assets of the firm, including leasehold interests, I to pay all the indebtedness of the firm and to hold you free from any liability therefor.

“Dated this 26th day of April, A. D. 1910.

To Henry Thoma, Esq.”

That appellant accepted the same in writing in the language of the offer under the first proposition, that he would give $38,886 in cash and take all the stock, accounts, receivables and all other assets of the firm, including leasehold interests, and would pay all the indebtedness of the firm and hold' said Reisch free from any liability therefor; that on April 29, 1910, he paid appellee said sum of $38,886 in cash and took all the stock, accounts, etc., and agreed to pay all the indebtedness of the firm and to hold appellee free from all liability therefor; that, at said time last mentioned, appellant and appellee entered into a formal agreement in regard to the sale and purchase and dissolution of said partnership as follows, to wit:

‘ ‘ This Agreement, made and concluded this 29th day of April, A. D. 1910, by and between Leonard Reisch, of the City of Springfield, Illinois, party of the first part, and Henry Thoma, of the City of Springfield, Hlinois.

“Witnesseth: That the said Leonard Reisch in consideration of the sum of thirty-eight thousand, eight hundred and eighty-six ($38,886.00) dollars, to him in hand paid at the time of the delivery of these presents by said Henry Thoma, the receipt whereof is hereby acknowledged, has granted, bargained, sold and delivered and by these presents does grant, bargain, sell and deliver unto the said Henry Thoma, all his interest in the business of the firm of Reisch & Thoma, doing business at 508 and 510 East Adams Street, Springfield, Illinois, including all the stock, fixtures, accounts, receivables and all other assets of said firm of Reisch and Thoma, of every nature and kind whatsoever, including the leasehold interest on said premises, to have and to hold said goods, chattels and interest unto the said Thoma, his heirs, executors, administrators and assigns to and for his own proper use and behoof forever.

“And the said Henry Thoma, party of the second part, as part of the consideration for said sale and conveyance, covenants and agrees to and with said Leonard Reisch, party of the first part, to pay all the indebtedness of the said firm of Reisch and Thoma and to hold said Leonard Reisch free from any liability therefor.

“It is further mutually agreed by and between the parties hereto that the partnership heretofore exiting between them under the firm name and style of Beiseh & Thoma, is hereby dissolved and ended and that the said Henry Thoma is to have the firm assets and to pay the firm debts as hereinbefore agreed.

“In witness herefor, the parties hereto have set their hands and seals the day and year first above written.

Leonard Beiseh, (Seal)

Henry Thoma. (Seal) ”

That appellee, between the time of the taking of said invoice on January 15, 1910, and said dates of April 26, and 29, 1919, had received and taken merchandise and money from the firm and assets of said business amounting to $1,428.96, which he charged against himself in favor of said firm, which goods and money so taken were all taken after January 15, 1910, and under the terms of said agreement and sale should be and were payable to appellant under said offer of appellee and acceptance by appellant; that appellant had repeatedly requested and demanded of appellee that he pay said sum of money, but that he refuses so to do, that on a final hearing the amount may be ascertained and declared by this court which appellee received and took from the said partnership between January 15,1910, and April 29,1910, and which is charged against him on the books of said firm, and that he be decreed, by the judgments and order of this court, to pay the sum to appellant within a short day.

The contention of appellant is that, under the contract of dissolution by which he bought all the book accounts of the firm, that the account of appellee was included in said book accounts and was a debt due the firm, and the case of Jones v. Bliss, 45 Ill. 143, is cited in support thereof. There is no allegation in the bill that there was any fraudulent concealment of the assets of the firm or of the accounts of the partners. There are no allegations in the bill to warrant the assertion that the contract of dissolution was based upon the accounts as they stood January 15, 1910, simply because the written offer made by appellee set" out the inventory made at that time. Moreover, from the value of each partner’s interest, as shown by the inventory, 20 per cent was deducted in the offer. Each partner is presumed to know the condition of the firm’s assets and the interests of his copartners in the absence of fraud. There is no averment in the bill that appellant had not taken out of the business between January 10th and April 26th as much or more than the books showed that appellee had taken. The interest of a partner in the property of a copartnership comprising two partners is not the ownership of an undivided half interest in each particular asset, but is one-half of the surplus which remains after payment of the partnership debts and the settlement of accounts between the partners.

"While the case of Jones v. Bliss, supra, supports the theory of the bill, the rule therein stated has never been followed by any subsequent case in this case, and it is contrary to the decided weight of authority in this country. The general rule is that when a partner sells his interest in the firm property, the presumption arises that, in the valuation upon which the sale was based, the debt of the selling partner is taken into account, and it cannot be assumed that such partner sold or intended to sell his own indebtedness to the firm, if any existed. The case of Jones v. Bliss, supra, was decided in 1867, and in 1872 the same justice who wrote the opinion in that case wrote the opinion in the case of Norman v. Hudleston, 64 Ill. 11, which was a case brought for an accounting where one of the partners had sold out his interest. In this case the court held: “The.parties themselves flatly contradict each other, and there would be but little basis for any decree, except one dismissing the parties out of court, were it not for the inference that may be drawn from the admitted agreement by Norman to pay Hudleston $2,098.25 when he bought the interest of the latter in the business. The inference from that is, that all their former accounts were considered as settled, or at least merged in the new bargain.” No reference is made to the rule announced in Jones v. Bliss. In Hamilton v. Wells, 182 Ill. 144, it was said: “When a partner makes a sale of his interest in the firm property, the presumption is that he sells only his legal interest, and, in the absence of any contract or agreement to that effect, it cannot be assumed that such partner, so selling out, sold or intended to sell his own indebtedness to the firm, if any existed. This results from the presumption that arises that in the valuation upon which the sale is based, the debt of the selling partner is taken into account and the value of his interest is thereby reduced to that extent as soon as the debt is paid.” In distinguishing the case of Jones v. Bliss in this opinion, the court said in regard thereto: “The presumption was considered to be overcome by the language used in the assignment. ’ ’ In no other case in this State is the case of Jones v. Bliss referred to. In the case of Hamilton v. Wells, 182 Ill. 144, the case of Norman v. Hudleston is cited with approval as upholding the doctrine that a partner who sells his interest in the firm property cannot be presumed, in the absence of any agreement, to have sold his own indebtedness to the firm, but it will be presumed that such debt was taken into consideration in fixing the selling price. The same principle was held to apply in the following cases: Commons v. Snow, 194 Ill. App. 570; Milloy v. Hoyt, 123 Ill. App. 568; Hattenhauer v. Adamick, 70 Ill. App. 602; Schlicher v. Vogel, 61 N. J. Eq. 158; Schlicker v. Whyte, 65 N. J. Eq. 404; Stoddard v. Wood, 9 Gray (Mass.) 90; Van Scoter v. Lefferts, 11 Barb. (N. Y.) 140; 30 Cyc. 457.

The court did not err in sustaining the demurrer to • the bill and the decree is affirmed.

Affirmed.