text:
    In re Estate of Peter Hager, deceased. W. M. Kenton, Administrator, Appellant, v. Martha Hager, Appellee.
    Gen. No. 5,131.
    1. Administration of estates—when question as to widow's right to award not finally disposed of. The whole matter of the widow’s award remains within the jurisdiction of the Prohate Court until it has made an order either denying any award or approving a particular award.
    2. Administration of estates—when widow entitled to award. A widow whose husband died ini another state is entitled to an award in this state if at the time of his death his legal domicile was in this state.
    3. Administration of estates—when principal administration in Illinois. If a decedent at the time of his death was living in another state, his legal domicile continued in Illinois if there was no intention when such decedent removed from Illinois to change such domicile or no capacity to make such a change, and the principal administration is to be regarded as in the state of the legal domicile.
    Petition for widow’s award. Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding.
    Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed October 19, 1909.
    J. J. Joy and R. A. Green, for appellant.
    J. T. & Max Murdock, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

On August 31, 1906, Martha Hager filed in the Probate Court of La ■ Salle county, Illinois, a petition wherein she stated that her husband, Peter Hager, died intestate on March 4, 1906, in Kansas, while visiting there; that he left no real estate, but left notes and accounts and choses in action worth not to exceed $3,600; that the residence of petitioner for the last thirty years had been La Salle county, and that the home of the deceased was in La Salle county, for the last thirty years before his death, but that at the time of his death he was visiting a son in Kansas; and the petitioner asked that letters of administration be issued to Harry G. Cook, public administrator of La Salle county. The prayer of the petition was granted and Cook became administrator. Among the assets of deceased was a claim theretofore allowed in favor of Peter Hager against the estate of his deceased son, Stephen J. Hager, by the Probate Court of La Salle county, on December 5, 1905, in the sum of $2,223.22, after deducting certain credits in favor of Stephen J. Hager. The La, Salle county administrator collected this claim from the estate of Stephen J. Hager, deceased, in the sum of $2,353.22, and paid taxes upon the personal estate and some other expenses. Appraisers were appointed, who allowed the widow an award of $1,815. Prior to this administration in La Salle county, Illinois, the Probate Court of Bice county, Kansas, where Peter Hager died, appointed W. M. Kenton administrator of his estate on April 11, 1906. What estate there was for him to administer, other than this claim against the estate of Stephen J. Hager, deceased, does not appear. After the above widow’s award had been allowed by the appraisers appointed by the Probate Court of La Salle county, Kenton, as the Kansas administrator, appeared in the Probate Court of La Salle county, and filed objections to said widow’s award, both on the ground of lack of authority to make such an award and also that the award was excessive. On November 16, 1907, these objections were heard and the court held the award excessive and set it aside, and appointed three other appraisers. The latter made an award of $1,250 to the widow. Kenton filed like objections to this award which were heard and overruled and the award was approved. Kenton appealed from that order to the Circuit Court of La Salle county, where there was a hearing, and the second award was again approved. Kenton has appealed from that order to this court.

Section 74 of the Administration Act (chapter 3 of the Bevised Statutes) as it read prior to July 1, 1909, was in part as follows: “The widow, residing in this state, of a deceased husband whose estate is administered in this state, whether her husband died testate or intestate, shall, in all cases, in exclusion of debts, claims, charges, legacies and bequests, except funeral expenses, be allowed, as her sole and exclusive property, forever, the following, to-wit: * * * which shall be known as the widow’s award.” Appellee contends that as the widow resides in this state, and as her deceased husband’s estate is being administered in this state, the proof brings this case exactly within the statute and the widow is entitled to an award here, regardless of all other questions. Appellant contends that Peter Hager was domiciled in Kansas at the time of his death; that Kansas was the situs of all his personal estate, including this judgment against the estate of his son Stephen in Illinois; that the principal administration is in .Kansas, and that the administration in Illinois is ancillary only; and that the statute above quoted only applies where the principal administration is in this state, and therefore does not apply to this case.

Each party relies upon the order entered by the probate court on November 16,1907, as a bar to the other party. That order found that the domicile of Peter Hager at the time of his death was Rice county, Kansas ; that the widow resided in this state at the time of her husband’s death, and was entitled to an award as such widow under the statute; but that the award theretofore returned by the appraisers was excessive; and it appointed new appraisers. That order was entered at the November term, 1907, and no one appealed from it. The order approving the second award to the widow was made at the January term, 1908, and found nothing concerning the domicile of deceased or the right of the widow to an award, except what was implied in overruling the objections thereto. The appeal by the Kansas administrator was from the order at that January term. Appellant argues that as neither the widow nor the La Salle county administrator appealed from the order at the November term, it was a finality and conclusively established that Rice county, Kansas, was the domicile of Peter Hager at the time of his death and was the place of principal administration, and therefore no award can be made to the widow here. Appellee argues that as the Kansas administrator did not appeal from the order at the November term, it is thereby conclusively adjudged that the widow is entitled to an award here under the laws of this state. We are_ of opinion that if the order of the November term is binding as a final judgment, then it is settled that the principal administration is in Kansas, and it is also settled that the widow is entitled to an award in this state. This would dispose of the main questions in the case in favor of the widow. But we are of opinion that there was no final order in the Probate Court on this subject till an award was allowed to the widow. Under the view asserted by the parties the widow should have appealed from so much of the order of the November term, as held that Peter Hager was domiciled in Kansas at the time of his death, and the Kansas administrator should have appealed from so much of that order as held that the widow was entitled to some award, and thus there would have been two appeals on the subject pending in the upper courts, when no widow’s award had yet been made or refused in the Probate Court. We are of opinion that the whole matter of the widow’s award remained within the jurisdiction of the Probate Court till it made an order either denying any award or approving a particular award, and that the appeal from the only final order of the Probate Court opened all questions.

It seems to be contended by appellant that the Circuit Court held that the question of the domicile of Peter Hager at the time of his death was conclusively settled by the November term order of the Probate Court, and that the Circuit Court rejected or refused to hear evidence upon the subject of domicile. A reading of the entire colloquy on that subject between the court and counsel, as set out in the record more fully than in the abstract convinces us that the court made no such ruling. The evidence on the subject of the domicile was full and was mostly introduced by appellant.

Peter Hager lived and had his home in La Salle county nearly all his life. He there buried his first wife, the mother of his children, and afterwards married his present widow there, and there had a home with her. How long he and his second wife lived together does not appear, but it was long enough so that one of his children testifying by deposition in Kansas, spoke of her as “Mother.” Peter and his wife both became old and feeble. There is a difference among the witnesses as to his age, but the family considered that he was eighty-eight years old when he died, which was some ten months after his son Zachariah took him to Kansas. The widow was about seventy-one years old when her husband died. They had lived together in their own home in La Salle county till Peter had a stroke of paralysis. They seem to have then removed to the home of his son Stephen in La Salle county. As soon as Peter got better, Stephen, who was himself ill and who was heavily indebted to his father, declared that while he woulld take care of his father he would not take care of his step-mother, and she was compelled to go to the home of one of her children by a former marriage. Peter’s son Zachariah soon came from Kansas on a visit and finding Stephen ill and unable to care for their father, proposed to take Peter back to his home in Kansas. . When the proposition was made to Peter he cried and said he could not stand the trip, but he afterwards consented to go. When the evidence is read in full in the record, and especially that of Zachariah and his wife, we think it clear that Peter was feeble, very childish, that he could not be trusted to go about alone and take care of himself, that he was not competent to transact business, that he had not sufficient memory to have been able to travel alone from Illinois to Kansas, that his children could not say that he knew the difference between Kansas and Illinois; that his memory was very poor, especially as to all recent events; that his speech was much impaired by his paralysis; and that he often could not find words or utterance for what he apparently wished to say. He was in fact a child in mind and body. He could not support himself. He could not be trusted to attend to his own personal wants. He needed constant care and personal attention. Stephen could not give it because he was ill, and he died soon thereafter. All the rest of Peter’s children were in Kansas. Zachariah came on, and found it was necessary for some child to take charge of his father, and very properly and very kindly offered to take that duty upon himself. Stephen consented and so did Peter’s wife, who in her aged and feeble condition could not do otherwise, and Zachariah took his father to his own home in Kansas and kept him there, except when Peter was visiting another son in another county. Peter wanted to come back to Illinois to see about some notes which he thought needed attention, but the family considered him too feeble to make the journey. Proof was made that he consented to go to Kansas to live with Zachariah, and that when there he said he preferred Kansas to Illinois.

We are of opinion that this feeble old man, unable to care for himself, with mind and memory greatly impaired, often unable to talk or to find the right word to express what he wished to say, partially paralyzed and in his dotage, was unable to form an intention to change his domicile from Illinois to Kansas, and that he did not in fact form any such intention, but that this was an arrangement made and perfected among his children, who were very kindly performing the duty of taking care of their father at such places as best suited their conditions in life. We are of opinion that, the domicile of Peter Hager remained in Illinois, where his home had been all his active life and where* all the property in fact was which the record shows, that he possessed. The principal administration was therefore in Illinois, and his widow was entitled to an award in this state, regardless of the question whether she could have had an award here under our statute if the administration here were only ancillary.

We would have been better satisfied if the estimate by the appraisers had been somewhat lower. But it must be presumed that the appraisers took into consideration all matters bearing upon the amount to be allowed for each of the several items which the statute awards to the widow, till the contrary appears. The application to the Probate Court of La Salle county for letters of administration put the value of the estate to be administered in Hlinois at not exceeding $3,600. There was nothing to show the value of the estate administered in Kansas. We therefore cannot, say that the award is excessive, in view of the entire estate. The widow is aged, infirm, and living with a married daughter who is very poor. We do not feel called upon to reduce the amount awarded by the second appraisers and approved by the Probate and Circuit Courts.

The order is therefore aErmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Dibell

license: Public Domain

text:
    N. Mills Lewis et al., Appellants, v. Jed Lewis et al., Appellees.
    Gen. No. 5,138.
    1. Wills—when deduction of distributee’s share properly made. If a will directs that the amount of a particular note mentioned therein shall be deducted from the share of one of the distributees named in the will, such deduction is properly made regardless of whether such note or a part thereof has at the time of the making of the will been paid. Such being the intention of the testator as shown by the terms of the will.
    2. Appeals and erbors—what not part of chancery record. The original report of a master in chancery with the original documents attached therto should not be incorporated in the transcript made up for appeal, nor can such report be properly imported into the record by the employment of the vehicle of a certificate-of evidence.
    Partition. Appeal from the Circuit .Court of Warren county; the Hon. John A. Gray, Judge, presiding."
    Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed October 19, 1909.
    Brown & Soule, for appellants.
    Hanley & Cox (H. B. Safford, Guardian ad litem), for appellees.
   Mr. Presiding Justice Dibell

delivered the opinion of the 'court.

The main purpose of this suit was to partition between the devisees the real estate left by H. M. Lewis at his death, but the only controversy upon this appeal relates to a promissory note for the principal sum of $3,300 signed by Norvel Lewis and Mattie V. Lewis, Ms wife, payable to the order of H. M. Lewis, and remaining among Ms papers at his death. The will appointed two of the sons of the testator executors, directed the payment of his debts, and bequeathed $1,000 to his daughter, Effie Besler. The rest of the will was as follows:

“3d. After the payment of my just debts, funeral expenses, and the bequest of One Thousand Dollars to Effie Besler, I order and direct that all the balance of my property, real and personal, be divided into seven equal parts as near as may be practicable and distributed among my children, share and share alike, except that from the share of Norvel Lewis now deceased two promissory notes, one for the sum of Thirty-three Hundred Dollars ($3300.00) dated Jan. 1st, 1891, with interest at six per cent per annum, and one for Twelve Hundred Dollars ($1200.00) dated May 1st, 1894, with interest at six per cent per annum, are to be deducted, that is to say: 1st, To the heirs of my son Norvel Lewis, now deceased, one seventh part except that the two promissory notes before mentioned, viz: one for $3300 and interest and one for $1200 and interest are to be deducted from said share. 2nd. To my daughter Mary Miller one seventh part. 3rd. To my son Jed Lewis one seventh part. 4th. To my son Emory Lewis one seventh part. 5th. To my daughter Sarah Richmond one seventh part. 6th. To my daughter Effie Besler one seventh part. 7th. To my son Ed C. Lewis one seventh part.
I direct that Henry Staat, W. H. Brooks and C. E. Nisely, be appointed Commissioners to appraise my property, real and personal, and divide the same into equal shares as near as may be practicable and set off the same to my heirs as before stated.”

The heirs of Norvel Lewis, all minors, filed a bill and afterwards an amended bill. Sarah Richmond had died before the testator. Her children, all minors, and the other devisees of the testator were made defendants. Both bills charged that Norvel Lewis paid said $3,300 note in full to H. M. Lewis, and that the latter, not having said note in his possession at the time and place of payment, agreed to deliver it to Norvel, but neglected to do so, and that the executors have it in their possession; but that by reason of its payment by Norvel Lewis to the testator it should not be deducted from the share of the complainants, the heirs of Norvel Lewis. The bill prayed, besides other relief not material on this appeal, that said note for $3,300 and the interest thereon, be not charged against complainants nor deducted from their share of the property left by the testator, nor from the proceeds thereof, but that it be delivered to complainants to be cancelled; and that the rights and interests of all the parties in the premises or in the proceeds thereof be ascertained and declared by the court. The adult defendants answered denying that Norvel Lewis paid said note to H. M. Lewis and that the latter agreed to deliver said note to Norvel Lewis; and the answer further averred that even if said note had been paid yet the testator by his will directed that it should be deducted from the said one-seventh of his estate, and that the terms of the will cannot be changed or altered. The executors answered as to the necessity that they should receive a part of the proceeds of the real estate to enable them to pay debts and the legacy. The minor defendants, heirs of Sarah Richmond, filed a formal answer by a guardian ad litem, and also a cross bill, in which they set up their right to participate in the deduction to be made from the shares of the heirs of Norvel Lewis, deceased, for the principal and interest of said $3,300 note, and asked protection in that and certain other matters. The children of Norvel Lewis demurred to the cross-bill on the ground that the equities of the cross-complainants could be adjusted under the original bill. That demurrer was sustained and the cross-bill was dismissed. Thereafter the cause was referred to the master to take and report the proofs, with his conclusions of law and facts. The master took and reported the proofs and his conclusions; and as to said $3,300 note he reported that the principal and interest thereon should be deducted from the one-seventh willed to complainants; that there was no right in fact or authority in law to omit to deduct said note from said share, or to reform, revise or change the will; that the note had not in fact been paid, and that it should not be can-celled and delivered up. Complainants filed twelve objections to said report, which were overruled by the master, and were renewed before the court as exceptions to the report. All but the 5th, 10th, 11th, and 12th of said exceptions relate to said $3,300 note. The court sustained the 3rd, 5th, 10th and 11th exceptions and overruled the others, and decreed, among other things, that the interests of the complainants in the estate are charged with the principal of said $3,300 note, with interest thereon at six per cent per annum from its date. The questions discussed here are whether the note was, in fact, paid; and, if so, whether that fact will relieve the heirs of Norvel Lewis from the deduction, or whether the note must in any event be deducted because the will so directed.

The third exception was that the master found that said $3,300 note had not been paid. That exception was sustained. No cross error has been assigned. At first blush it would seem that because no cross-error is assigned on that ruling, the question whether that note was paid is not presented, but that it is to be assumed that the court held that the note was paid, but must, nevertheless, be deducted in obedience to the will. But the court overruled the seventh exception, which attacked the report because the master failed to find that said note was fully paid by Norvel Lewis to H. M. Lewis, and that H. M. Lewis agreed to deliver said note to Norvel Lewis, not having it in his possession at the time and place of payihent, but that he neglected to deliver it to Norvel Lewis as agreed. This is one of the rulings of the court upon the report which is assigned for error by complainants, and it raises the question whether said note was paid. Apparently the court held that the directions of the will must be obeyed, and it was therefore immaterial whether the note was paid or not.

The first question, therefore, is whether the proof warrants the conclusion that the note was paid, for if it was not paid, then the contention of complainants that the note should have been decreed not to be deducted from their share is necessarily defeated. It is not contended that the note was paid after the will was made, but long before. The note is dated January 1, 1891, and was due one year after date, with interest at six per cent per annum from date. The deed by which it is alleged that payment was made was dated and acknowledged April 16, 1894, was delivered about April 30, 1894, and was recorded on the latter date. The will was drawn and executed on January 13, 1904. The testator died about March 5 or 8, 1905. The will was admitted to probate on April 4, 1905. The alleged payment was therefore between nine and ten years before the execution of the will. The payment was sought to be proved by F. B. Sheldon, whose name was signed to the original bill as solicitor for the complainants, and by Mattie V. Lewis, widow of Norvel Lewis and mother of complainants, and who brought the suit as their next friend in the original bill. Before F. B. Sheldon and Mattie V. Lewis testified, their names were withdrawn from the case.

Norvel Lewis, at the time of the alleged payment, lived near Beatrice, Nebraska, and owned two farms, one upon which he lived called the “Home Farm,” and another called the “Wagner Farm.” Sheldon was a lawyer at Beatrice. There were four mortgages upon the Wagner farm which H. M. Lewis had taken up and caused to be assigned to himself, and the assignments were of record. Norvel was heavily indebted to his father. On April 16, 1894, Sheldon prepared a warranty deed from Norvel Lewis and Mattie V. Lewis, his wife, to H. M. Lewis, conveying to him the Wagner farm for an express consideration of $5,000 and they executed and acknowledged it, and Norvel Lewis took this deed away with him. H. M. Lewis lived in Warren county, Illinois. Sheldon testified that in the latter part of April, 1894, H. M. Lewis came to his office and said that he had just come from Illinois and wanted to go out to Norvel’s place, and that Norvel wanted him to make a settlement and take a deed to the Wagner farm for $5,000; that the witness told H. M. Lewis that he had drawn such a deed for Norvel and believed that it would be a good thing for Norvel to make some such settlement; that H. M. Lewis said he did not bring any money with him, but had his note for $3,300 at home and if he decided to take the farm he could easily arrange for the price, whatever it was worth; that on April 30, 1894, H. M. Lewis came to his office and he went with H. M. Lewis to the court house to introduce him to the register of deeds and to identify him as the person named in the assignments of the mortgages and entitled to release the same; that H. M. Lewis on that day released said mortgages and filed for record the deed from Norvel and wife; that H. M. Lewis then told him that he and Norvel had made a settlement; that he was to take the land, meaning the Wagner farm, and to release the existing mortgages and to give up to Norvel the $3,300 note and take a new note for $1,200 in settlement of everything. One of these mortgages was for $1,000 and one for $1,100 and the other two were “commission mortgages” for part of the interest on the principal mortgages. Sheldon testified that H. M. Lewis told him that he figured the mortgages at about $2,500 and that this note was for $3,300 and that he was not particular about figuring the interest exactly with Norvel or any of his sons, and that allowing himself $4.00 interest would make the new $1,200 note a settlement of their affairs. It will be seen that the $2,500 of mortgages, the $3,300 note and $400 for interest would make $6,200 and if the Wagner farm was taken at $5,000 a note for $1,200 would balance those matters; and such is the substance of the conversation with H. M. Lewis to which Sheldon testified. He further testified that the next day H. M. Lewis and Norvel Lewis came to the office together, and at Norvel’s request he drew up a note for $1,200 which Norvel signed and gave to his father. He further testified that H. M. Lewis called him to witness that it was all settled, and that he would send the $3,300 note to Norvel, or Norvel could get it sometime when he was in Illinois. There are several matters appearing in the record which raise doubts as to the reliability of this testimony. Whatever the arrangement may have been between H. M. Lewis and Norvel Lewis at that time, it was not made in Sheldon’s office. Sheldon took no part in the negotiations. He testified May 3, 1907, according to pages 182, 183 and 184 of the record, and not upon the date stated in the abstract. He therefore testified thirteen years after this casual conversation at his office. It is unusual that he should be able to remember and relate so many years later the minute details told to him in conversation by a person who was not his client and concerning a negotiation which he had not conducted. It seems more probable that he had studied documents and data given him by others and from these had formed a theory of what the consideration for the deed to the Wagner farm might have been, and that he was testifying from that theory rather than from a precise recollection. Upon his cross examination a number of letters written by him to H. M. Lewis within sixty days preceding this conversation were identified by him and introduced in evidence, and also two drafts, one dated March 12, 1894, for $460 and the other April 27, 1894, for $500 which H. M. Lewis sent to 'Sheldon to be used in paying off various liens upon his son’s two farms. Besides these drafts, the letters showed the receipt by Sheldon of another remittance from H. M. Lewis of $60 a few days before H. M. Lewis made this visit to Beatrice, so that it is entirely clear that the items which Sheldon testified that H. M. Lewis stated to him in that conversation on April 30, 1894, could not cover the entire indebtedness from Norvel Lewis to his father. These letters also showed that many things had taken place concerning the affairs between H. M. Lewis and Norvel Lewis and in which Sheldon had a part, which he had entirely forgotten till the letters, statements and drafts were produced. Another reason for doubting his testimony arises from an apparent suppression of evidence. Thereafter and before Norvel Lewis died, but perhaps after he returned to Illinois, to live, there was litigation in Nebraska with one Savage, involving the financial relations between H. M. Lewis and Norvel Lewis. In that case a deposition or depositions were taken. They were spoken of in Sheldon’s cross examination sometimes as a deposition and sometimes as depositions. Sheldon withdrew them from the court in Nebraska and sent them to the complainants’ solicitor in Illinois and testified that he did so because he thought they might have a bearing upon the present litigation. An effort was made by the court in Nebraska to compel their return, but they were not returned. Defendants assumed that they were the depositions of H. M. Lewis and Norvel Lewis, and served upon complainants’ Illinois solicitor a notice to produce them at the hearing of this case, but he failed to do so. These depositions apparently must have related to the financial dealings between H. M. Lewis and his son, Norvel, and their suppression by complainants’ solicitor and witness creates an unfavorable inference, or rather an inference that they would have shown a different state of affairs from that testified to by Sheldon.

Mattie V. Lewis, widow of Norvel Lewis and mother of complainants, who began this suit as their next friend, testified for them and testified that on the occasion of the visit of H. M. Lewis to them in Nebraska in the last week of April, 1894, Norvel and H. M. Lewis settled their affairs; that H. M. Lewis had bought up mortgages against a piece of land amounting to about $2,500 and that he held their note for $3,300 and that there was some interest upon these amounts, and that they gave him a deed for the Wagner farm and a note for $1,200 to settle the whole thing, and that H. M. Lewis said he would send the $3,300 note back after he reached his home farm in Illinois. Defendants insist that Mrs. Lewis was not a competent witness, against them, since they are defending as heirs and executors. She was testifying to transactions and conversations by her husband occurring during their marriage. She also was a joint maker of this note and was seeking by her testimony to enable her children to obtain such a decree as would relieve her from liability to the executors of H. M. Lewis on this note. It may be that the statute of limitations would have been a defense in her behalf if she had been sued thereon and had pleaded that statute, but by this evidence she was seeking to establish for herself a complete and perfect defense to the note, regardless of the statute of limitations. The foregoing was all the evidence to show that this particular note for $3,300 mentioned in the will had been paid almost ten years before the will was drawn. Against this evidence is the fact, first of all, that the testator made this will, in which he treated this note as still in full force for the full amount. The scrivener of the will called upon H. M. Lewis for the note, in order that he might correctly describe it in the will, and Lewis produced it. Again, the note was found among his papers after his death. He did not return it to his son after he came home from Nebraska. The next year after Norvel and his wife deeded the Wagner farm to H. M. Lewis, Norvel and his wife removed to Illinois and took up their residence in the home of H. N. Lewis and remained there till Norvel died in 1897, and some time thereafter Mattie V. Lewis returned with her children to Nebraska. .If this note had been paid it would have been natural that Norvel Lewis or his wife should have asked for its surrender. When a promissory note is found in the possession of the payee uncancelled, there is a presumption that he is the owner and that it is unpaid.

We recognize the general rule that where a will directs that a certain sum shall be treated as having been advanced to a certain devisee or legatee, or directs that a certain sum shall be charged against a devisee or legatee, or deducted from the share otherwise given by the will to such devisee, the amount fixed in the will cannot be questioned, but the deduction must be made. We are of opinion that under ordinary circumstances, if a will directs that the amount of a promissory note described, shall be deducted from the share of a beneficiary under the will, what is usually meant is that the amount actually due upon such note shall be deducted. A promissory note is but a piece of paper and has no intrinsic value. It is merely an evidence of indebtedness. When a will directs that a certain promissory note shall be deducted, it ordinarily means that the indebtedness evidenced by that note shall be deducted. If in this case the proof had shown that a year after this will was made, Norvel paid $500 on the note, no one, we think, would doubt that the amount of the reduction required by the will should be diminished by the amount of that payment. But this general view of the meaning of a direction in a will to deduct the amount of a promissory note does not seem to us to apply to this case in the manner urged by appellants. Their theory is that this note had been paid and that the testator, when he after-wards made his will, had forgotten that the note was paid. We find nothing in the record to justify us in presuming that he had forgotten the facts. There was nothing to show that he was not of sound mind and memory. He was a man of large wealth for a farmer. The real estate which he left is inventoried at nearly $40,000. From 1899 till about the time of his death he was a stockholder, director and vice-president of the Farmers’ State Bank at Berwick, Illinois. If this note was in fact paid in the deed of Wagner farm to H. M. Lewis in April, 1894, then we must assume that the testator knew that fact and yet directed that this note should be deducted from the share of Norvel’s heirs. Hence the ordinary presumption that he meant only the indebtedness evidenced thereby cannot be applied. If we assume that it was paid, then, knowing it to be paid, he still directed the note, principal and interest to be deducted. Why he did this probably cannot be known and is immaterial. It may be that he and his son had some later dealings whereby it was arranged that he should not surrender the note but should retain it. H. M. Lewis afterwards sold this land. It is conceivable that the proceeds of that sale were turned over to Norvel Lewis by some arrangement which involved the retention of the $3,300 note by H. M. Lewis. It may be that its retention grew out of the support by H. M. Lewis of Norvel Lewis and his large family in the home of H. M. Lewis during the last two years of Norvel’s life. It may be that because H. M. Lewis cared for Norvel and his family at his home during the last two years of Norvel’s life, the testator afterwards, when he made his will, concluded that equality in the division of his property among his children required that the amount of principal and interest upon this note should be deducted from the otherwise equal share which he was devising to the heirs of Norvel. For some reason known to EL M. Lewis when he made his will, the testator determined that the amount of this note should be deducted, and if in fact it had previously been paid in full, then he meant that it should be deducted notwithstanding said payment. It follows that in our judgment the court below properly caused the note to be deducted, regardless of whether the evidence is considered as establishing its payment or otherwise.

The original report of the master in chancery with all the original documents attached thereto has been incorporated in this record. The law does not authorize such documents to be embraced in the record upon appeal. Beth Hammidrash, etc., Congregation v. Oakwoods Cemetery Association, 200 Ill. 480; Martin v. Todd, 211 Ill. 105. It was sought to obviate this by causing the trial judge to sign a certificate of evidence embracing said master’s report. The cause was heard by the court solely upon the exceptions to the master’s report. The trial judge heard no evidence except that reported by the master. No certificate of evidence w-as necessary or proper, and the master’s report and the accompanying documents are no proper part of the record, under the authority of the foregoing cases, and the findings recited in the decree supported the decree, and for that reason also it must be affirmed. But notwithstanding this, we have determined the case upon the merits. We find no error in the action of the court concerning the $3,300 note, and that is the only matter in which the decree has been questioned here. The clerk is directed to detach the master’s report and accompanying exhibits and to return them to the clerk of the Circuit Court of Warren county.

The decree of the court below is affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Moses Brown, Plaintiff in Error.
    Gen. No. 5,139.
    1. Intoxicating liquobs—what indictment charging unlawful sale need not allege. An indictment charging the unlawful sale of intoxicating liquors in anti-saloon territory need not set up the proceedings by which such territory became anti-saloon.
    2. Intoxicating liquobs—what indictment charging unlawful sale need not allege. An indictment charging the unlawful sale of liquor in anti-saloon territory need not aver that the defendant was not a druggist.
    3. Intoxicating liquobs—what unlawful sale. If a person receives orders for intoxicating liquors in anti-saloon territory, transmits them to a company dealing in such liquors resident in another county of the state, receives and delivers the liquor in such anti-saloon territory, and in such territory collects the pay therefor, a violation of the statute is established.
    4. Cbiminal law—when denial of hill of particulars not ground for reversal. In a prosecution charging the unlawful sale of intoxicating liquors in anti-saloon territory, it is not prejudicial error to deny a motion for s. bill of particulars if it appears that the names of the witnesses were on the hack of the indictment and the record furnishes no reason to suppose that the defendant was not fully advised of the acts relied upon for a conviction.
    5. Pleading—when language of indictment sufficiently technical. Where the language of an indictment is sufficient to inform the defendant with what crime he is charged and to enable the court to ascertain from an inspection thereof that the offense created by statute is committed, it is sufficient.
    6. Juries—when challenge to array not sustained. An irregularity in the making up of a jury list will not support a challenge to the array so as to bring about a reversal of a conviction if it does not appear that the defendant was prejudiced or that he had exhausted his peremptory challenges or that he was not tried by a fair and impartial jury.
    Prosecution for unlawful sale of liquor. Error to the Circuit Court of De Kalb county; the Hon. Duane J. Carnes, Judge, presiding.
    Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed October 19, 1909.
    Harvey A. Jones, for plaintiff in error.
    E. M. Burst, for defendant in error; Irwin & Egan and H. W. McEwen, of counsel.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

An indictment in four counts was returned in the Circuit Court of DeKalb county against Moses Brown for violations of the Act of 1907, which provides for the creation of anti-saloon territory and makes it unlawful to sell intoxicating liquors therein. During the trial the third and fourth counts were dismissed. He was convicted under the first and second counts and, after a motion for a new trial was denied, he was was fined $20 and the costs under each of said first and second counts and ordered committed to the county jail till said fine and costs were paid or he was discharged according to law. He has sued out this writ of error to review that judgment.

It is urged that the indictment is insufficient. Each of said counts charged that Brown, on dates named in October and November, 1908, “at and within the town of DeKalb in the County of DeKalb in the State of Illinois aforesaid unlawfully and wilfully intoxicating liquor did then and there sell, the said town of DeKalb then and there being anti-saloon territory, contrary to the form of the statute,” etc.

It is urged that the indictment should have alleged the presentation of a sufficient petition to have the town of DeKalb made anti-saloon territory, the holding of an election pursuant to law upon that subject, the canvass of the votes and the result, so that it could 'be determined from the indictment itself that the town of DeKalb had become anti-saloon territory. Section 17 of the Act provides as follows: “In all prosecutions under this Act, by indictment or otherwise, it shall not be necessary * * * * to set forth the facts showing that the required number of legal voters petitioned for the submission to the voters of said proposition nor that a majority of the legal voters, voting upon said proposition, voted ‘yes,’ but it shall be sufficient to state in that regard that the act complained of took place in an anti-saloon territory or district.” This objection is not well taken because the statute so provides.

It is also contended that the indictment is defective because it only said by way of recital, “the said town of DeKalb then and there being anti-saloon territory,” instead of averring directly “which said town of DeKalb then and there was anti-saloon territory.” We are of opinion that this objection is too technical for practical use. Where the language of the indictment is sufficient to inform the defendant with what crime he is charged and to enable the court to ascertain from an inspection thereof that it charges that the offense created by the statute has been committed, it is sufficient. Gallagher v. The People, 211 Ill. 158.

It is contended that the indictment is defective because it does not charge that Brown was not a druggist. Section 11 of the Act makes it unlawful to sell intoxicating liquor within anti-saloon territory. Section 12 provides the penalty for the sale of intoxicating liquor within the limits of anti-saloon territory. Section 18 provides that the Act shall not be construed to prevent the sale of liquor for medicinal, mechanical, sacramental or chemical purposes only, not to be drunk upon the premises, by druggists to whom permits or licenses have been duly granted, so long as such druggist shall keep a record of such sales containing the information in that section specified, and shall keep such record open to the inspection of the police and all public officers during business hours. It is contended that the provisions of this section should have been negatived in the indictment. In Sokel v. The People, 212 Ill. 238, 245-6, and in the cases there cited, it is held that where an act is made criminal, with exceptions embraced in the enacting clause creating the offense so as to be descriptive of it, the People must allege and prove that the defendant is not within the exceptions, because where the exception is descriptive of the offense it must be negatived in order to charge the defendant with the offense; but that if the exception is in a subsequent clause, or is in the same clause but not incorporated within the enacting clause by any words of reference, it need not be negatived, but is a mere matter of defense, and that all that need be negatived is such exception as is descriptive of the offense. In that case the offense was the charge of bigamy under section 28 of the criminal code, which section contained a provision creating exceptions to the act, and yet it was held that those exceptions were not descriptive of the crime and did not need to be averred and proved to sustain a conviction. In this case the offense is created by sections 11 and 12, while the exception is contained in section 18. We are of opinion that the People were not required to allege or prove that plaintiff in error was not within the exception. Section 1 of the Act defines certain words and phrases, and defines anti-saloon territory as all the territory within the limits of any town, etc., “in which, through the action of the legal voters therein, as provided by the Act, the sale of intoxicating liquor, except as herein provided, is prohibited.” It is contended that because of this definition in section 1, it was necessary to negative the exception in section 18. We think this position not well taken.

Plaintiff in error entered a motion for a bill of particulars, and that application was denied. It is urged that this was error, on the strength of what was said by this court in Gilmore v. The People, 87 Ill. App. 128. Since that decision the Supreme Court has discussed the matter of bills of particulars in criminal cases in Du Bois v. The People, 200 Ill. 157; Gallagher v. The People, 211 Ill. 158; and People v. Smith, 239 Ill. 91, and has therein established the rule that the trial court has a wide legal discretion in granting or refusing to grant a bill of particulars, and that the refusal to grant a bill of particulars will not be ground of reversal unless some harm resulted to defendant by the refusal. In this case the names of the witnesses were on the back of the indictment, and the record furnishes no reason to suppose that the plaintiff in error was not fully advised of the acts relied upon by the People for a conviction. We hold that no reversible error was committed in this case by the refusal to grant the application.

At the trial, after twelve jurors had been called into the box and sworn to answer questions, plaintiff in error challenged the array, and offered documentary and oral proof in support of the challenge. Section 1 of chapter 78 of the Bevised Statutes, relating to jurors, requires the county board of each county, at or before its September meeting in each year, or at any time thereafter when necessary, to make a list of not less than one-tenth of the legal voters of each town or precinct in the county, giving the place of residence of each name on the list, to be known as a jury list. Section 2 requires that at the meeting of the county board in September the board shall select from such list a number of persons equal to one hundred for each trial term of the Circuit Court provided by law to be held during the succeeding year, to serve as petit jurors, a proportionate number to be chosen from the residents of each town or precinct. Section 7 requires a list of the jurors so selected to be kept in the office of the county clerk, who shall write the name and residence of each person selected upon a separate ticket, and put the whole into a box for that purpose. Section 8 provides for drawing from said box without partiality the names of a sufficient number of said persons, not less than thirty for each two weeks that such court will probably be in session for the trial of common law cases, to constitute petit jurors for that term. The record of the county board introduced in evidence by plaintiff in error seems to show a compliance with that statute in selecting the jury composing the panel at the time of the trial now before us. Plaintiff in error, however, called the county clerk as a witness and showed by him that in preparing the list from each town, which was done at his office, the names were arranged in alphabetical order, and that when he took the proportionate number of names to put in the box, he began at the head of each of these alphabetical lists. It was not shown but that the county clerk acted under the direction of the several supervisors and of the board in putting this list in alphabetical form, nor that anything that he did was not done by direction of the board whose clerk he was. If there was any irregularity in the course pursued, yet it does not appear that plaintiff in error was in any way prejudiced by the manner in which the jury was selected, nor that he exhausted his peremptory challenges in the impaneling of the jury, nor that he was not tried by a fair and impartial jury. He was tried by men whom the board of supervisors selected, and the proof shows that a proportionate number were taken from, each town or precinct. Mere irregularity in the selection of a jury will not authorize a reversal, but it must further appear that the plaintiff in error was prejudiced thereby, and such prejudice will not be presumed, but must be shown. Siebert v. People, 143 Ill. 571; Henry v. People, 198 Ill. 162; Wistrand v. People, 213 Ill. 72; and Hartshorn v. Illinois Valley Ry. Co., 216 Ill. 392. It does not appear that the plaintiff in error was prejudiced by the method pursued in the selection of the jury.^

It is contended that the evidence is not sufficient to support a conviction. The proof concerned Blatz beer made by the Val Blatz Brewing Company. There was not much evidence that this was an intoxicating drink, although it would seem to be sufficient upon that subject that a witness testified concerning this beer that if a man drank it too much it would make him drunk. But it is alleged by the People and admitted by counsel for plaintiff in error in argument here that on the trial counsel for plaintiff in error admitted that his beer was intoxicating, and made this admission for the purposes of the trial. The main facts are these: Prior to the election which made the town of DeKalb anti-saloon territory, plaintiff in error had been a saloon-keeper selling the Blatz beer. As soon as the result of that vote was known, he went to the officers of this brewing company and asked what he should do. They furnished him with blank orders for beer and told him to take these to his former customers and let them fill out orders for beer and deliver them to him, and that he should mail these orders to the brewing company and it would ship the beer consigned to the customer, and he should receive the cases of beer at the depot and deliver them to the party giving the order and collect the pay therefor and remit the money to the brewing company, and that he should collect the empty cases after the beer had been drunk and return them to the brewing company, and that the brewing company would pay him five cents per case for delivering the beer and five cents for shipping it back. He did deliver such blanks to his customers, some of these blank orders being so delivered before the expiration of the thirty days intervening between the vote and the act going into effect in such town. After the act went into effect in the town of DeKalb he did receive from his former customers residing in the town of De Kalb orders for beer so signed by them. He mailed the orders to the brewing company; he obtained the cases of beer at the depot; he delivered them to his various customers in said town pursuant to the orders; he collected and remitted the pay to the brewing company, and he collected the empty cases and shipped them back to the brewing company. Section 13 of the act concerning anti-saloon territory is as follows: “The giving away or delivery of any intoxicating liquor for the purpose of evading any provision of this Act, or the making of orders or the making of agreements, at or within any political subdivision or district while the same is anti-saloon territory, for the sale or delivery of any intoxicating liquor, or other shift or device to evade any provision of this Act, shall be held to be an unlawful selling.” In our judgment the facts stated made a case against the defendant.

What is said above practically disposes of the main objections made to the action of the court upon the instructions. Plaintiff in error sought to make the case turn upon the question where the title to the liquor was, under City of Carthage v. Duvall, 202 Ill. 234, but we are of opinion that that case is not in point here. Section 12 of the act concerning anti-saloon territory makes every person liable who shall, either as principal, clerk or servant, directly or indirectly, sell any intoxicating liquor within anti-saloon territory, and plaintiff in error would be equally guilty if he acted as the agent or servant of the brewing company in taking his orders and delivering this beer and collecting and remitting the pay therefor, and under section 13 the delivery of intoxicating liquor for the purpose of evading the provisions of the act, and the taking of orders in anti-saloon territory for the sale of intoxicating liquor, each constitutes an unlawful selling. For like reason we are of opinion that People v. Young, 237 Ill. 196, does not apply. The place where this brewing company received and filled the order for this beer is not shown to have been dry territory, and it may be that if it were indicted for selling and delivering beer in dry territory the case of People v. Young supra, might be in point on the proposition that what it did was in territory not alleged or shown to be dry. But the question here is not whether the brewing company has violated this statute, but whether plaintiff in error has done so. He took these orders in dry territory, received the beer and delivered it in dry territory and collected the pay in dry territory. All of his acts were in dry territory, and we fail to see that he is protected by the fact that what the brewing-company did was in territory not alleged or proven to be dry. One of the instructions requested by plaint-. iff in error was drawn to submit to the jury the question whether the conduct of plaintiff in error was a shift or device, but said section 13 made his taking of these orders in anti-saloon territory an unlawful selling and the instruction was properly refused. One instruction requested by defendant and refused relating to the credibility of witnesses seems to have been in proper form, but there was practically no conflict in the testimony and it was not therefore reversible error to refuse this instruction.

We find no reversible error in the record and the judgment is therefore affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Saren Arenkill, Plaintiff in Error.
    Gen. No. 5,140.
    Appeals and errors—when assignments waived. Assignments of error not argued are deemed waived.
    Prosecution for unlawful sale of liquor. Error to the Circuit Court of De Kalb county; the Hon. Duane J. Carnes, Judge, presiding

      Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed October 19, 1909.
    Cliffe & Cliffe, for plaintiff in error.
    E. M. Burst, for defendant in error; Irwin & Egan and H. W. McEwen, of counsel.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Saren Arenkill and Thomas Collins were indicted for unlawfully selling intoxicating liquor in the town of DeKalb in the county of DeKalb, while it was anti-saloon territory. Collins was acquitted and Arenkill was found guilty under the first count and, after the denial of the motion for a new trial, was sentenced to confinement in the county jail for ten days and was fined $100 and costs and was ordered to stand committed till the fine and costs were paid or he was discharged according to law. He has sued out this writ of error to review the judgment. Most of the grounds upon which a reversal is urged are disposed of in the opinion filed by us this day in People v. Brown, ante, p. 365.

The proof showed that prior to the election by which the town of DeKalb was made anti-saloon territory, Arenkill conducted a saloon in the town of DeKalb, and that since that time he has been conducting a pool room and a place for the sale of soft drinks. Witnesses for the People testified that since the town of DeKalb became anti-saloon territory, they bought drinks at said place of business, one of them calling for grape juice and the other for ginger ale; that they paid for the liquid furnished them, and that there was whiskey in it; and that it would intoxicate. The defense introduced proof to show that no whiskey was sold or delivered to either of these witnesses at that place. The jury saw the respective witnesses and heard them examined and believed the witnesses for the People. Their verdict has been approved by the trial judge, who also saw the witnesses. We see no reason for disturbing their conclusion.

The action of the court upon the instructions is assigned for error, but the brief of plaintiff in error states that while his counsel believe the instructions subject to criticism, yet they deem it unnecessary to argue the instructions. We therefore do not consider it our duty to search the instructions for error not pointed out in the briefs. We conclude that the errors argued in the briefs are not well assigned.

The judgment is therefore affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Timothy Duggan, Plaintiff in Error.
    Gen. No. 5,142.

      Evidence—competency of former prosecutions. In a criminal case it is error to require a witness upon cross-examination to testify as to former prosecutions to which he has been a party defendant.
    Prosecution for unlawful sale of liquor. Error to the County Court of De Kalb county; the Hon. William L. Pond, Judge, presiding.
    Heard in this court at the April term, 1909.
    Reversed and remanded.
    Opinion filed October 19, 1909.
    Cliffe & Cliffe, for plaintiff in error.
    E. M. Burst, for defendant in error; Irwin & Egan and H. W. McEwen, of counsel.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Timothy Duggan was indicted in the Circuit Court of DeKalb county for the unlawful selling of intoxicating liquor in the town of DeKalb when the same was anti-saloon territory. The cause was certified to the county court for trial. Plaintiff in error was found guilty under the first and second counts of the indictment and not guilty under the remaining counts. A motion for a new trial was denied and he was sentenced to confinement in the county jail for ten days under each of said -first and second counts and was fined $100 under the first count and $50 under the second count and ordered to stand committed until fine and costs were paid or until plaintiff in error was discharged according to law.. He has sued out this writ of error to review the judgment. Many of the contentions of plaintiff in error have .been disposed of adversely to his position, in People v. Brown, ante, p. 365.

Plaintiff in error was a witness in his own behalf and his evidence tended to show that he was not guilty of the charge. On cross examination by the People he was required over the objections and exceptions entered in his behalf by his counsel, to answer the following questions, after it had appeared that prior to the town of DeKalb becoming dry territory, he had been engaged in the saloon business as bartender and proprietor for fourteen years:

‘ ‘ Q. During the time you have been a saloon keeper in DeKalb county, have you been indicted by the grand jury for the sale of liquor?”
“Q. Have you been indicted by the grand jury of this county for selling liquor to minors contrary to law?”
“Q. Within two or three years have you been called upon in the circuit court of DeKalb county to plead to an indictment for selling intoxicating liquor?”

These questions resulted in the answer that he had once been called upon in the circuit court of DeKalb county to plead to an indictment for selling intoxicating liquor. In criminal cases the only charge which can be proved to affect the credibility of a witness is conviction of an infamous crime, and that conviction must be proved by the record and cannot be proved by oral testimony. Bartholomew v. The People, 104 Ill. 601; Kirby v. People, 123 Ill. 436; Simons v. People, 150 Ill. 66; McKevitt v. People, 208 Ill. 460; O’Donnell v. People, 224 Ill. 218; Daxanbeckler v. People, 93 Ill. App. 553. In one respect the rule is different in civil cases, for there by our statute the witness may be compelled to testify orally to the conviction. But even there it is the conviction of an infamous crime which must be shown, as held in Matzenbaugh v. People ex rel., 194 Ill. 108; Burke v. Stewart, 81 Ill. App. 506; Pioneer Fire-proofing Co. v. Clifford, 125 Ill. App. 352; 135 Ill. App. 417, and 232 Ill. 150. In the case now before us the question which the witness was compelled to answer did not relate to an infamous crime, and did not inquire as to whether there had been any conviction, and this being a criminal case the witness could not be compelled to answer these questions, and could not be so discredited except by the record. The court erred in permitting this examination of the plaintiff in error; and as the case was close upon the proofs, the discredit thus cast upon the testimony given by the plaintiff in error may have caused the verdict against him.

For the error in permitting plaintiff in error to be cross examined as above set out, the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    J. G. Petteys, Appellant, v. Anheuser-Busch Brewing Association, Appellee.
    Gen. No. 5,156.
    1. Evidence—when fact established by secondary. Notwithstanding parol evidence is incompetent to prove a record, if proof thereof has been made in that way without objection, the facts shown will be considered as established.
    2. Landeobd and tenant—what does not relieve from obligation to pay rent. Held, under the facts of this case, that the surrender of the demised premises by the party in question did not relieve him from the obligation to pay rent for the unexpired portion of the term.
    3. Landeobd and tenant—when assignee liable for rent. By receiving a written assignment of a lease and by attorning, an assignee becomes bound by the lease as to covenants running with the land including the payment of rent to the same extent as if a written acceptance of such assignment had been placed upon the lease.
    Assumpsit. Appeal from the Circuit Court of Will county; the Hon. Albebt O. Mabshall, Judge, presiding.
    Heard in this court at the April term, 1909.
    Reversed and remanded.
    Opinion filed October 19, 1909.
    J. G. Petteys, appellant, pro se.

    Higgins & Walter, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Appellant sued appellee to recover rent for the month of June, 1907, for premises in Morris, Illinois, except the top story. Appellant filed an amended declaration. The first count was based upon a special contract of leasing. The second count was for so much as the use of said premises for that one month was reasonably worth. The third count was for use and occupation upon an agreement to pay a certain sum. The next count bears numbers from 4 to 11 inclusive, but is really a consolidated common count in debt, the different items being separately numbered. The court sustained a demurrer to all but the first and second counts. To the first and second counts appellee pleaded nil debet, non est factum and no rent in arrear. Issue was joined upon those pleas, a jury was waived, and there was a trial and a judgment for defendant below, from which plaintiff appeals.

The third count seems to comply in all respects with the requirements of a proper count in debt and no reason is suggested why the demurrer to it should have been sustained. The rest of the declaration is a consolidated common count in debt. It complies, so far as we can see, with the rules for such a count in debt laid down in 1 Chitty’s PL 361, 362, and with the forms given in 2 Chitty’s PL 385-387. The court erred in sustaining the demurrer to these counts.

Appellant proved that Laura J. Neilson owned the premises and leased them to him for a period terminating May 1,1908, and that he paid her rent from the beginning to the end of that term; that he leased the premises to Neis Mathias for a term of twenty-four months, beginning May 1, 1906, and ending May 1, 1908; that Mathias assigned the lease to appellee in writing on the back of the lease and that appellant endorsed his consent thereon. Appellee did not sign a written acceptance of the lease, but it received possession of said lease so assigned and thereafter attorned and paid rent to appellant from month to month. In correspondence with appellant appellee assumed that it was the owner of the Mathias lease. Mrs Neilson sold the premises to certain secret societies subject to existing leases, and the societies notified appellee to pay the rent to them. After investigation appellee continued to pay the rent to appellant for several months and paid the same to June 1, 1907. Some time during the month of June, 1907, appellee left the premises and the societies took possession. The proof of these facts made a case for appellant.

# Appellant was a witness in his own behalf and, on cross examination, appellee proved by him without objection, though it was not legitimate cross examination and could not be properly proved by parol, that in May, 1907, the societies which had bought the property, brought forcible detainer before a justice against appellant and appellee for the possession of the premises and had a judgment from which judgment appellant appealed to the Circuit- Court and that the case was still pending in the Circuit Court on appeal. The agent of appellee then testified that some time during June, 1907, appellee moved out of the premises voluntarily. While-most of this evidence was incompetent, if objected to, yet if appellee chose to make its case by an oral examination of appellant, it was bound by all the facts so orally disclosed. The appeal suspended the operation of the judgment entered by the justice and under these circumstances, appellee could not lawfully surrender possession to the societies and thereby relieve itself from its contract to pay rent. The lease from appellant to Mathias was for the unexpired part of the term. By receiving the written assignment of the lease from Mathias and attorning to appellant, it became bound by the lease as to covenants running with the land, including payment of rent, to the same extent as if it had placed a written acceptance thereof upon the lease. Sexton v. Chicago Storage Co., 129 Ill. 318; Consolidated Coal Co. v. Peers, 205 Ill. 531. According to the oral testimony no writ of possession was issued nor any effort made by the societies to enforce the judgment rendered by the justice and from which the appeal had been perfected. There is therefore no proof to show that appellee has been released from its obligation to pay rent to appellant. But, still further, the rent was due on June 1, for that month, and it held possession for a considerable portion of the month and could not vacate the premises in the manner it did and .escape liability for the month of June. The judgment must therefore be reversed upon its merits. Appellant ask us to enter judgment here for the rent for that month fixed by the lease. We are unwilling to do so, because when the ease is properly tried and the record of the suit in forcible detainer is introduced in evidence, it may be that the case will have a different aspect.

The judgment is therefore reversed and the cause remanded with directions to overrule the demurrer to the third and fourth counts of the amended declaration.

Reversed and remanded with directions.


author: Me. Pbesiding Justice Dibell

text:
    Belle Ashmore, Executrix, Appellant, v. Skene Lead Company, Appellee.
    Gen. No. 5,168.
    1. Appeals and errors—when record shows no decree. A recital in a certificate of evidence or a hill of exceptions over the signature of the judge that a decree or judgment has been entered, and even stating the legal effect thereof, does not make that recital a decree or judgment in the legal sense of the term. The decree or judgment must be entered in the record kept by the clerk of the court and must be inserted in the record certified by him, and if that is not done the decree or judgment is not before the court with whom such an imperfect record is filed.
    2. Parties—interest should he shoion. A bill of complaint should set up the interest of the complainant in the subject-matter of the litigation.
    Bill in chancery. Appeal from the Circuit Court of Jo Daviess county; the Hon. R. S. Farrand, Judge, presiding.
    Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed October 19, 1909.
    J. C. McKenzie and W. Spensley, for appellant.
    James C. Hood and Sheean & Sheean, for appellee.
   Me. Pbesiding Justice Dibell

delivered the opinion of the court.

Henry Ashmore was the owner of certain lands, and executed a lease to George Skene, giving Skene the right to mine said lands for lead, zinc or other ores at a certain royalty reserved as to lead and zinc ores, and with no provision for royalty upon any other ore or product from the mines. By assignment from Skene through successive parties, the lease became the property of appellee. The mine was worked for several years and, in the process of working it, certain refuse, called “tailings” or “chatts” was piled up on the surface of these premises. The tailings were composed of crushed rock containing perhaps some mineral. The lead company thereafter undertook to use the tailings in the manufacture of cement blocks. There were negotiations between Ashmore and appellee with reference to the payment of a royalty upon the tailings, but no agreement was reached. Ashmore filed a bill in chancery and several amendments thereto and prayed for a decree restraining appellee from removing or using the tailings. Appellee answered claiming a right to use the tailings under the lease and denying the right of Ashmore to interfere with its use of them, and in the answer it asked the same benefit as if it had demurred to the bill. While the suit was pending Ashmore died. His death was suggested and, by order of court, the cause proceeded in the name - of Belle Ashmore, executrix of the estate of Henry Ashmore, deceased. No amendment or supplement to the bill was filed, showing what interest the executrix had in the litigation. It is alleged that on the hearing the bill was dismissed for want of equity. The executrix appeals from such supposed decree.

There is no decree in the record certified here by the clerk. The certificate of evidence sets out a decree. Such a recital in a certificate of evidence is not a decree nor can it be treated as such. A recital in a certificate of evidence or in a bill of exceptions over the signature of the judge that a decree or a judgment has been entered, and even stating the legal effect thereof, does not make that recital a decree or a judgment in the legal sense of the term. The decree or judgment must be enrolled in the record kept by the clerk of the court and must be inserted in the record certified by him, and if that is not done the decree or judgment is not before the court with whom such an imperfect record is filed. Terry v. Trustees, etc., 72 Ill. 476; Alton Lime & Cement Co. v. Calvey, 41 Ill. App. 597; O’Donnell v. Quinn, 100 Ill. App. 5; Riva v. City of Spring Valley, 129 Ill. App. 167.

We might therefore very properly strike this case from the docket, but the supposed decree dismissing the bill for want of equity is inserted twice near the close of the certificate of evidence, and it may be that one of those sheets was intended to be inserted after the certificate of evidence, for the clerk certifies that this record includes the judgment complained of and the prayer and order of appeal, which do not elsewhere appear. We therefore conclude to treat the cause as if there was a proper decree in the record.

The question which appellant seeks to litigate here is whether the tailings belong to the landlord or to the tenant. At the time that the decree was entered, the executrix was the complainant. There is no allegation nor proof as to the provisions of the will of Henry Ashmore, deceased, and therefore there is no allegations nor proof that the executrix has any interest in the estate of Henry Ashmore, deceased, except in the personal property.

If the tailings are personal property and belong to the estate, there seems to be a complete remedy at law, as in the case of Smoot v. Consolidated Coal Co., 114 III. App. 512. If the tailings are personal property and appellee has a right to them but is liable to pay royalty thereon, then the remedy at law is clear. If these tailings, deposited upon the surface of the land, remain a part of the real estate, then the executrix, as such, has no interest therein, so far as is alleged or proved in this case, but they belong to those to whom the real estate was devised. If the will gave to the executrix any title to the real estate, that should have been alleged and proved. Upon the present record, the bill seems to have been properly dismissed for want of equity, regardless of whether the tailings belong to the landlord or to the tenant.

The decree is therefore affirmed.

Affirmed.


text:
    Thomas J. Grace, Appellee, v. Town of Derinda, Appellant.
    Gen. No. 5,174.
    1. Constitutional law—effect of appeal to Appellate Court. An appeal to the Appellate Court waives the question of the validity of a statute in question.
    2. Roads and bbidges—when proceedings before supervisors void. After a proceeding in court by which an appeal to supervisors has been adjudged erroneous, such proceedings before such supervisors become a nullity.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Jo Daviess county; the Hon. Richabd S. Fabband, Judge, presiding.
    Heard in this court at the April term, 1909.
    Reversed.
    Opinion filed October 19, 1909.
    Hodson & Campbell, for appellant.
    Sheean & Sheean, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Thomas J. Grace, a constable, sued the town of Derinda in Jo Daviess county to recover his fees for serving a certain writ of summons and a certain jury venire and certain subpoenas in a highway proceeding. He had a finding and a judgment for $50.55, from which the town prosecutes this appeal.

A petition was presented to the commissioners of highways of the town of Derinda to alter a certain road by vacating a certain portion and by laying out part of the road along a different route. The commissioners of highways refused the prayer of the petition. John Bandecker, one of the petitioners, appealed from said order to three supervisors of the county and said three supervisors upon a hearing reversed the decision of the commissioners and determined to alter the old road to the new location. A jury was thereupon called and a trial was had before the jury to determine the damages to which the owners of the land, over which said altered road was laid out, were entitled, and these fees were incurred in that proceeding before a justice of the peace to ascertain said damages. Thereafter an order was entered altering and laying out the road accordingly.

Section 62 of the statute relating to Boads and Bridges under township organization and relating to such an appeal from the decision of the highway commissioners to three supervisors, is as follows: “Any parties taking an appeal from the award of the decision of the commissioners, or the verdict of the jury, shall file a sufficient bond with the justice of the peace or town clerk before taking 'such appeal, conditioned for the payment of the cost of such appeal, in case the decision of the commissioners or the verdict of the jury is in all things sustained, or the appeal dismissed; if the award of the highway commissioners, or verdict of the jury, shall not be sustained, the town shall pay the cost of such appeal. ’ ’ By the decision of the three supervisors, the decision of the highway commissioners was not sustained on the appeal, and the above section provided that, in such case, the town shall pay the cost of the appeal. These costs were made upon such appeal, and by the action of the three supervisors in reversing the decision of the highway commissioners the town became liable to pay these costs under this statute. It is suggested by appellant that -this statute is not valid in so far as it puts upon a town costs in a proceeding to which it is not a party. If appellant desired to raise the question of the validity or constitutionality of this statute, it should have appealed to the Supreme Court. The appeal to this court waives the question of the validity of this statute. Haas Electric Co. v. Springfield Amusement Park Co., 236 Ill. 452.

But it was proved that afterwards said commissioners of highways caused that record to he removed to the Circuit Court by a common law writ of certiorari and, upon a final hearing, it was there adjudged that said proceedings before the three supervisors were erroneous, and they were by the judgment of the Circuit Court quashed, annulled and set aside and ordered to be henceforth taken for naught. When this judgment was entered, the proceedings npon appeal to the three supervisors thereupon became a nullity from the beginning, and as inoperative for all purposes as if said appeal had never been taken. Sholty v. Comrs. of Highways, 63 Ill. 209. The judgment in certiorari was at the February term, 1908, of the Circuit Court, and this suit was instituted September 1, 1908. The effect of the judgment in certiorari was to annul the proceedings by which the decision of the highway commissioners had not been sustained. It therefore annulled the proceedings which under the statute had made the town liable for these costs. When this suit was instituted the decision of the highway commissioners was in effect sustained. The annulment of the proceedings before the three supervisors left the town no longer liable for these costs by section 62 of the Boad and Bridge Act. The court below held propositions of law apparently in accordance with the views here expressed, and yet entered judgment against the town for these costs. Our attention is not called to any other statute which would make the town liable therefor. It seems to be argued that there is some equitable reason why the town ought to pay these costs. It is alleged in argument that the proceedings were annulled upon certiorari by reason of some error or omission by the highway commissioners at the inception of the proceedings. No such conclusion can be drawn from any evidence in this record. The ground upon which the court annulled the proceedings is not shown. We are unable to find any ground upon which to sustain the judgment. Counsel for each party have discussed the question from whom plaintiff can recover these costs, if not from the town. That question is not before us upon this record. The judgment is therefore reversed.

Reversed.


text:
    The People of the State of Illinois, Defendant in Error, v. Frank Ferguson, Plaintiff in Error.
    Gen. No. 5,188.
    1. Juey tbial—when jury in County Court properly formed. Held, that the issuance of a special venire and the summoning of a jury by the County Court was in conformity with section 110 of the County Court Act.
    2. Jtjby tbiaIj—when prejudice arising from failure to summon jury from body of county does not appear. Held, that it did not appear from the affidavit made the basis of the contention that the jurors who had served were not summoned from the body of the county; also that it did not appear that they were prejudiced and that in view of the absence of such a showing and the failure to exercise peremptory challenges, that no reversal should be ordered.
    Proceeding by information. Error to the County Court of Winnebago county; the Hon. Louis M. Regkhow, Judge, presiding.
    Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed October 19, 1909.
    B. A. Knight, for plaintiff in error.
    Harry B. North, for defendant in error.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

An information was filed in the county court of Winnebago county against Frank Ferguson, charging him with the unlawful sale of intoxicating liquor in the town of Bockford when the same was anti-saloon territory. The information averred when and how the town of Rockford became anti-saloon territory, and that Ferguson did not then have any permit or license to sell intoxicating liquor for medicinal, mechanical, sacramental or chemical purposes. Upon a trial he was found guilty. A motion for a new trial was denied and he was fined $100 and sentenced to the county jail for thirty days and ordered to stand committed till the fine and costs were paid. He has sued out this writ of error to review the judgment.

The jury which tried Ferguson was summoned by special venire. After they were called into the box and before they were examined Ferguson challenged the array. That challenge was heard and overruled. It is contended that he was not tried by a lawful jury. Section 110 of the connty court act provides that, unless the court shall otherwise order, the jury for the law terms shall be drawn and summoned as provided for drawing juries in the Circuit Court; that when a jury is not thus summoned the court shall on the first day of the term call all the cases to ascertain whether a jury will be required; and that if a jury shall be demanded in any suit pending or by the state’s attorney or defendant in any criminal suit, the court shall set such cases for trial and order a venire for twelve competent jurors and deliver the same to the sheriff, who shall summon such jurors from the body of the county. The November term, 1908, of the county court of Winnebago county began on the second Monday, which was November 9th. The offense charged in this case was not committed until November 24th, and the information was filed November 25th. Therefore the provisions above recited as to what should be done before or on the first day of the term could not apply to this case. There is nothing in this record to show but that a jury may have been drawn in the' manner provided for drawing and summoning jurors in the Circuit Court. There is nothing in this record to show but that the court may, on the first day of the term, have called all the cases for trial and may have ordered a special venire for the trial of cases and such venire may have been issued and served and jury trials had and the jury discharged before this offense was committed. If necessary to sustain the action of the court we must assume, in the absence of any showing on that subject in the record, that one or the other of these courses had been taken before this information was filed. The next term of the county court would be held in the following March. Ferguson did not assert that the court had no power to try him till March nor did he ask for a continuance. So far as we can know he might not have been able to get bail and might have been compelled to remain in jail till March if he had not been tried at the November term. The spirit of the statute was fully observed. Under the section above referred to he had no vested right to have a jury drawn before the term as is done in the Circuit Court. If this information had been filed before the term began all that he would have been entitled to under the statute referred to was to have his case called for trial on the first day and have a venire issued for twelve competent jurors. His case could not be called on the first day because it was not yet in court nor the crime committed. A venire was issued in all other respects in exact conformity with the statute. If he conceived that he was entitled to a continuance he should have asked for it. The venire was issued on December 21st, returnable on December 22nd, and we are of opinion that a venire was properly ordered at that time.

It is further contended that the jury was not drawn from the body of the county as required by law and by the writ and that Ferguson was prejudiced thereby. This contention was supported by his affidavit that he is a negro and that he had resided in Bockford for several years and had had differences which involved him in police court matters and that this case had been given extended notice in the local newspapers and that the people of Bockford and immediate vicinity were prejudiced against him; that this panel was made up almost entirely of persons living either in Rockford or in close proximity thereto where said newspapers circulate; that he believed that he could not have as fair a trial as if the jurors had been drawn from the body of the county removed from such prejudice. The affidavit did not state how many of the jurors lived in Rockford or near there and how many lived elsewhere. The examination of the jurors is not set out in the record so that we can see whether they in fact had read the newspaper accounts referred to or were in any way prejudiced against Ferguson. The record showed that he exercised no challenges, either peremptory or for cause, but accepted all the jurors who had been summoned by the sheriff. Under such circumstances it is obvious that he cannot claim that he was prejudiced by the course pursued, and therefore even if the manner of choosing the jury was in any respect irregular, the irregularity would not be ground for reversal, under Siebert v. People, 143 Ill. 571.

It is contended that the evidence does not support the conviction. The proof introduced for the People was as follows: Ferguson was a barber. Three boys went towards his shop in the evening; one stopped on an adjacent corner and the other two went into the shop, and one of these testified that their purpose in going there was to get whiskey. They sat some time in the shop and had some talk with Ferguson which they did not reveal, they being obviously witnesses hostile to the prosecution, as the prosecution was instituted by the step-father of one of the boys after he had found a bottle of whiskey in the boy’s trunk. There had been some small financial dealings between Ferguson and one of these boys, and he said to the boy “When are you going to pay me that money?” The boy handed Ferguson oné dollar and asked if he could not get him some whiskey. Ferguson thereupon complained of his stomach, whereat all the people in the shop laughed. He left a customer with a towel around his neck, went into a back room and put on his overcoat, went out of the shop and bought a bottle of whiskey, came back through the shop and into the back room and put the bottle of whiskey on a shelf, after possibly drinldng a little out of it. He then returned to his customer and went on with his work. The boy who had given Ferguson the money went into the back room, got the bottle and then left the shop, and the three boys then went to the room of one of them. They there found the step-father, and two of the boys went away and returned and then the step-father left. Two of the boys then drank a part of the whiskey, and one of them testified that it was intoxicating. In direct examination the boy who paid the money testified that fifty cents of it was intended for whiskey. His account of the matter on cross-examination did not wholly agree with the direct examination. He appeared to desire to shield Ferguson so far as he could under the questions of the latter’s attorney. Ferguson testified denying that he agreed to buy the whiskey for the boys, or that this money was for whiskey, or that he knew that one of the boys took the bottle till later in the evening. This proof raised a question of fact for the jury. If the jury took one view of the evidence, Ferguson’s talk about the pain in his stomach was designed to furnish an apparent excuse for his going for the whiskey; the money was designed, in part at least, to pay for whiskey; and he put the bottle on the shelf in order that the boy might get it. If the jury took the other view of the evidence Ferguson bought the whiskey for his own use, and the boy took it without his knowledge or consent. The boys had no other errand at the barber shop, and the jocularity which prevailed there, and which we have not fully stated, tended to show a secret understanding of the meaning of what was said and done. The trial judge saw the witnesses and approved the verdict. We do not. feel authorized to disturb it on the facts.

The instructions given for the People were based upon the statute, and we do not find any reversible errors in them. The instruction marked “a”, requested by Ferguson and refused, omitted the idea that the presumption must be “reasonably” compatible with the evidence, and the correct rule was embodied in the first instruction given at his request. The jury were fully instructed for the defendant.

We find no reversible error in the record and the judgment is therefore affirmed.

Affirmed.


text:
    Melvin Knox, Appellant, v. Joseph Hunter, Appellee.
    Gen. No. 5,193.
    1. Appeals and errors—when freehold involved. If it is essential that the Appellate Court determine where the title to real estate rests, a freehold is involved and it has no jurisdiction of the cause.
    2. Forcible entry and detainer—when does not lie. Held, that the plaintiff who had never been in possession of the land in question or entitled to such possession prior to the institution of the action, could not maintain forcible entry and detainer.
    3. Trusts—particular transaction construed. Held, that a deed and written agreement in question in this case considered as one transaction, did not constitute and appoint a trustee with full power to sell the lands in question and to dispose of the proceeds thereof.
    4. Estoppel—when, in pais, affecting permanent interests in land can he availed of. An estoppel in pais can be availed of only in a court of equity and cannot be availed of in ejectment or forcible entry and detainer.
    Forcible detainer. Appeal from the Circuit of Knox county; the Hon. R. J. Grier, Judge, presiding.
    Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed October 19, 1909.
    Williams, Lawrence, Welsh & Green, for appellant.
    Chiperfield & Chiperfield, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

This is a suit in forcible detainer brought by appellant against appellee to recover a certain lot 4, containing twelve acres, of a certain subdivision of real estate in Knox county. At the close of all the evidence the court directed a verdict for defendant. On that verdict a judgment was rendered for appellee, from which plaintiff below appeals. The clerk’s record recites the entry and overruling of a motion for a new trial, but the bill of exceptions does not contain any such motion, nor the ruling of the court thereon, nor any exception thereto. Such matters as can only be preserved for review by an exception to the denial of a motion for a new trial are therefore not presented by this record.

Under date of December 5, 1896, R. H. Harper and wife conveyed these premises to Hugh A. Sloan at the request of appellee. Some kind of a declaration of trust was executed by Sloan at that time. The instrument seems to have been afterwards destroyed upon the execution of other instruments hereinafter mentioned. Oral evidence was introduced as to the provisions of that trust agreement. ' Appellant claims under a deed from Sloan, and it is contended in his behalf that the trust so created in Sloan at the time of the Harper conveyance was an active trust, and that, by virtue thereof, Sloan had authority to make the conveyance to Knox. It is contended by appellee that the trust thereby created in 1896 was a dry trust, and that, .under the statute, the title vested at once in appellee, and that Sloan had thereby no authority to convey the premises. If these questions were material, we should doubt our authority to entertain this appeal, because it involves the question whether, by these papers, the title rested in Sloan or passed to Hunter, the appellee, which is a question of freehold. But we regard this as immaterial because of the subsequent acts of the parties.

On October 14, 1907, Hunter conveyed these premises to Sloan, and there was executed, as part of the same transaction between Hunter and Sloan, an instrument in writing as follows:

‘‘It is hereby agreed by and between Joseph Hunter of Salem Township, Knox County, Illinois, and Hugh A. Sloan of same place, that the said Joseph Hunter is to pay on January 1,1908, the sum of Five Hundred ($500.00) on the indebtedness now standing against the twelve acres of land occupied by the said Joseph Hunter, title of which is in the said Hugh A. Sloan, with interest on the entire debt at that time; and also agrees to pay five hundred dollars ($500.00) on the first of each succeeding January, until the entire debt is paid, and to pay the interest annually on the sum remaining unpaid, and in case the said Joseph Hunter fails to pay said five hundred dollars ($500.00) on January 1, 1908, or any future payment to be made, together with interest due, then the said Hugh A. Sloan is to sell the said twelve acres of land at private or public sale for the best price obtainable; to pay off the indebtedness against said land, and all expenses of the same, and pay over to the said Joseph Hunter whatever balance remains in his hands, and Hunter executes a Quit Claim Deed to the said Hugh A. Sloan releasing all claim or all interest of whatsoever character in and to said land. In witness whereof we have hereunto set our hands and seals this 10th day of October, 1907.
Joseph Hunteb [Seal] Hugh Sloan [Seal.]”

At the time this was executed, if we understand the evidence, the former instrument of trust was destroyed. We conclude that the effect of the former instrument was thereby cancelled and that what Sloan thereafter did, he did by virtue of this paper. On February 29, 1908, Sloan and wife conveyed these premises to appellant for $2,250 and appellant assumed a certain mortgage upon the premises executed by Sloan, and paid the balance therefor in cash, and on August 15, 1908, demanded possession of the premises from appellee and, the premises not being surrendered, began this suit in forcible detainer.

Section 2 of the Forcible Entry and Detainer Act authorizes such a suit to be maintained under various conditions, the only one of which possibly applicable to this case being the 6th, as follows:

“When lands or tenements have been conveyed by any grantor in possession, or sold under the judgment or decree of any court in this State, or by virtue of any sale in any mortgage or deed of trust contained, and the grantor in possession or party to such judgment or decree, or to such mortgage or deed of trust, after the expiration of the time of redemption, when redemption is allowed by law, refuses or neglects to surrender possession thereof, after demand in writing by the person entitled thereto, or his agent.”

Sloan had never been in possession, neither had Harper. These lands' had not been sold under any judgment or decree. We held in Aurner v. Pierce, 106 111. App. 206, that forcible detainer could not be maintained where the party suing had never been in possession, the language of the first part of section 2, being that the person entitled to possession “may be restored thereto.”

But the material question in this case is, when the deed from Hunter to Sloan and the written agreement between Hunter and Sloan are considered together as one transaction, what was the nature of the conveyance? Appellant contends that thereby Sloan became the trustee of Hunter with full authority to sell these lands and dispose of the proceeds as in that written agreement provided, and he relies upon Cherry v. Greene, 115 Ill. 591; Muller v. Balke, 167 Ill. 150; and Dickson v. N. Y. Biscuit Co., 211 Ill. 468. We do not regard these cases as in point. In Cherry v. Greene, supra, the grantor conveyed the premises to a trustee with power and direction to sell his real estate, and from the proceeds to pay his debts,- to support his family, and to make certain disposition thereof after his death till the death of his wife and then a certain other disposition thereof till the death of his children and then a final disposition. This was an active trust, and the trustee had no interest as creditor. The case of Muller v. Balke, supra, also imposed duties upon the trustee which had no conneetion with any indebtedness to the trustee. The case of Dickson v. N. Y. Biscuit Company, supra, related to a power in a will. At the time these instruments before us were executed in 1907, there was upon the premises a mortgage for $1,000, which Sloan had given to raise money for Hunter; and Sloan had also signed various notes with Hunter to enable Hunter to procure money, and Sloan had also advanced money to pay taxes upon this property. Sloan, therefore, was a creditor of Hunter, and these debts and these alone are the debts referred to in said agreement, and which Hunter therein agrees to pay to Sloan at certain times therein stated, and these two instruments together cannot be construed as anything else than a conveyance by the debtor to the creditor, with an agreement that the purpose of the conveyance is to secure the debt. There is no distinct agreement that Sloan will re-eonvey when the debt is paid, but that is clearly implied. This, therefore, is a case of a mortgage, with authority in the mortgagee to sell the premises out of court to pay the debt "in case of default. The Act of 1879, paragraph 22 of chapter 95, Hurd’s Revised Statutes, forbids the sale of any real estate by virtue of any such power of sale in any mortgage, but requires the same to be foreclosed only pursuant to the judgment -or decree of a court of competent jurisdiction. This sale to appellant was therefore ineffective to make him the owner in fee of the premises. "Whether it would be treated as void or as making him a succeeding trustee is immaterial. He bought with full knowledge of the agreement of December 10, 1907, although the same was not recorded. A mortgagee cannot maintain forcible detainer against the mortgagor upon non-payment of the debt. West v. Frederick, 62 Ill. 191.

Appellant introduced proof showing that shortly before he completed the purchase of the premises from Sloan, he had a talk with appellee, in which appellee said the sale was all right, and that appellant could move into a part of the premises at a certain time and that appellee would get out by a certain other time. The only result this proof could have would be to create an estoppel in pais against appellee. It was held in St. Louis Stock Yards v. Wiggins Ferry Co., 102 Ill. 514; Winslow v. Cooper, 104 Ill. 235, B. & O. & C. R. R. Co. v. I. C. R. R. Co., 137 Ill. 9-34; Wright v. Stice, 173 Ill. 571, and Grubbs v. Boon, 201 Ill. 98, that an estoppel in pais affecting a permanent interest in land can be availed of only in a court of equity and cannot be availed of in ejectment or forcible entry and detainer or forcible detainer.

We are of opinion that plaintiff cannot maintain this action upon the facts stated in this record. The judgment is therefore affirmed.

Affirmed,.