author: Lacey, C. J.

text:
    George Wilcox v. Clara Wilcox.
    1. Extreme and repeated cruelty. — Where the truth or falsity of the charge of extreme and repeated cruelty rested nearly entirely upon the evidence of the husband and wife, the one affirming and the other denying. Held, that this court can not say that the court below erred in not finding for the husband.
    2. Awarding child to mother. — As the husband failed to provide suitable support for his wife and the wife has been earning a comfortable support by her profession as actress, and is abund-mlly capable of caring for the child, there was no impropriety in the decree of the court below awarding the child to the mother.
    Appeal from the Circuit Court of McHenry county; the Hon. C. W. Upton, Judge, presiding.
    Opinion filed August 7, 1885.
    Mr. B. N. Smith, for appellant;
    as to extreme and repeated cruelty, cited Henderson v. Henderson, 88 Ill. 248; Von Glahn v. Von Glahn, 46 Ill. 125; Turbitt v. Turbitt, 21 Ill. 438; De La Hay v. De La Hay, 21 Ill. 252; Harman v. Harman, 16 Ill. 90.

      Mr. John B. Lyon, for appellee;
    as to cruelty, cited Ward v. Ward, 103 Ill. 477; Poor v. Poor, 8 N. H. 307.
   Lacey, C. J.

This was a bill for divorce brought by appellee against appellant, charging extreme and repeated cruelty, in opposition to the cros'-bill of appellant charging desertion. The cause was heard by the court below upon the testimony of both parties, and upon such evidence as they chose to produce, and the court, after a full hearing, found the issues on the original and cross-bill in favor of the appellee, and decreed divorce in her favor, and the custody of their child was given to her.

It is claimed that the proof does not sustain the charge of extreme and repeated cruelty as charged in the bill.

After an examination of the evidence we are satisfied that if what the appellee testified to was true, that is, that the appellant struck and beat the appellee while she was enciente and a short time after the birth of their child, the charge of cruelty was fully made out. The truth or falsity of this charge rested nearly entirely upon the evidenceof the appellant and appellee themselves, the one affirming a.nd the other denying. We can not say that the court below erred in not finding for appellant.

It also appears that the appellant was of little force of character and failed in his most important duty to provide suitable support for appellee, allowing her to want for the most common necessaries of life, she at times being at the point of starvation.

It seems, since the separation, that appellee has been earning a comfortable support by her profession as actress, and that she is abundantly capable of caring for the child; and we see no impropriety in the decree of the court in awarding it to her.

The decree is therefore affirmed.


source: Caselaw Access Project

author: Lacey. P. J.

license: Public Domain

text:
    Elizabeth Kauffman v. Jonathan Peacock et al.
    Dower — Real estate converted into personalty. — A wife joined with her husband in the execution of a trust deed to one A, as trustee for B, to secure a note given by the husband to the latter, for $3,100, conveying certain lots, no part of the indebtedness being her own; subsequently the husband absconded, when creditors of the husband sued out writs of attachment and levied the writs on the real estate included in the trust deed, most of which attachments passed into judgments. The realty was sold under the trust deed by A, and there was realized $3,820.06 over and above the sum necessary to pay note, mortgage and costs of sale, which was garnisheed by creditor C, in the hands of the trustee A, to answer the attachment of C. The wife files her bill in equity against the trustee and all the said creditors, claiming dower in and to one third of the surplus, and praying the court to take jurisdiction of the matter until her husband’s death, etc. Held, that as against such claim as is attempted to be enforced here, the surplus in question is personal property and not realty. The wife has no dower in it.
    Appeal from the Circuit Court of Winnebago county; the Hon. Joseph M. Bailey, Judge, presiding.
    Opinion filed August 7, 1885.
    Mr. A. D. Early and Mr. H. W. Taylor, for appellant;
    that dower, inchoate or absolute, is an interest in land and is favored in law, cited Sisk v. Smith, 1 Gilm. 510; 1 Story, Eq., §627; In re Cipperly, 44 Barb. 370; Ketchum v. Shaw, 28 Ohio, 506; Buzick v. Buzick, 44 Ia. 259; Huzleman v. Hazlett, 55 Ia. 256; Huston v. Seeley, 27 Ia. 197; Farwell v. Johnston, 34 Mich. 342; Bissell v. Taylor, 41 Mich. 702; Rhoades v. Davis, 51 Mich. 309; Conover v. Porter, 13 Ohio, 45; Adams v. Beal, 19 Ia. 61; Davis v. Witherell, 13 Allen, 60; Madigan v. Walsh, 22 Wis. 478; Weston v. Weston, 46 Wis. 134; Damon v. Moon, 48 Mich. 510.
    In joining the husband in the execution of the mortgage appellant released her contingent right of dower, for the single and limited purpose of securing the payment of her husband's mortgage debt, retaining her right of dower in the surplus land, or, if all the land should be sold under the mortgage, in the surplus proceeds of the land, such surplus proceeds standing for the surplus land, by virtue of the doctrine of equitable conversion: McArthur v. Franklin, 15 Ohio St. 493; Denton v. Nanny, 8 Barb. 618, 625, 626; Matthews v. Duryea, 45 Barb. 69; Hawley v. Bradford, 9 Paige, 200; 1 Scribner on Dower, 478, 481, § 26-30; Bank of Ohio v. Hunt, 21 Ohio St. 509; Maloney v. Horan,49 N. Y. 116; Jacques v. Ennis, 25 N. J. Eq. 402; Vreeland v. Jacobus, 19 N. J. Eq. 231; Wheeler v. Kirtland, 27 N. J. Eq. 534; De Wolf v. James, 11 R I. 630; Tyler on Infancy and Coverture, § 395.
    Mr. N. C. Warner, Mr. J. C. Garver, Mr. R. F. Crawford, Mr. C. M. Brazee and Mr. C. A. Works, for appellees;
    that before the death of the husband surplus moneys arising from a mortgage sale are regarded for purposes of distribution as personalty, after the husband’s death such moneys for such purposes are regarded as realty, cited 2 Jones on Mortgages, 2d Ed. §§ 1693, 1695; Dean v. Phillips, 17 Ind. 409; Wright v. Rose, 2 S. & S. 323.
    Widows and not wives are entitled to dower in surplus moneys: Cook v. Dillon, 9 Ia. 412; Dean v. Phillips, 17 Ind. 409; Wright v. Rose, 2. Sim. & Stuart, 323; Bogert v. Furman, 10 Paige (N. Y.), 498; Cope v. Wheeler, 41 N. Y. 308; Moore v. City of New York, 4 Sandford, Sup. Ct., 460; Moore v. Mayor of New York, 4 Selden, 113.
    The inchoate right of dower does not become property or anything more than an expectancy at any time before it is consummate by the death of the husband: Cooley’s Const. Lim. 3d Ed. 361; Barbour v. Barbour, 40 Me. 9; Noel v. Ewing, 9 Ind. 37; Lucas v. Sawyer, 17 Ia. 517; Henson v. Moore, 104 Ill. 403.
   Lacey. P. J.

This case is as follows: The appellant, being the wife of August Kauffman, joined with him in the execution of a trust deed to one James Ferguson, as trustee for Julius C. Fitch, to secure a note given by August to the latter for $3,100, conveying certain lots in the city of Bockford, no part of tlxe indebtedness being- her own; subsequently the husband absconded, when a portion of the appellees, creditors of August, sued out writs of attachment, in the aggregate in tlxe sxxm of $11,158.88, and levied the writs on the real estate included in the trust deed, most of which attachments passed into judgments. The realty was then sold under the trust deed by Ferguson, the trustee, default having been made, and there was realized the sum of $3,820.06 over and above the sum necessary to pay the note and mortgage and costs of sale, which was therefore garnisheed by appellee Peacock in the hands of Ferguson to answer the attachment of Peacock.

The appellant thereupon filed her bill in equity in tlxe circuit court against the trustee and all the said «’editors, setting up tlxe above facts, claiming dower rights in and to one third of tlxe surplus, praying the court to take jurisdiction of the matter and to order tlxe one tlxird of said sum pxxt at interest for tlxe benefit of tlxe creditors till after her husband’s death, and then for her benefit till her .death, unless she is given a sum in gross for her interest, and at her death the principal sum to go to the creditors.

The court below sustained the demurrer and dismissed the bill at appellant’s cost», and she appeals to this court.

This presents a new and very interesting question, the like never having been passed upon by this or the Supreme Court, so far as we are advised. After a careful review of the authoi’ities presented by counsel on either side, and of others which have come to our] notice, though finding tlxe authorities not in harmony on the subject, we think the greater weight of authorities is against the claim of the appellant, and certainly, in our judgment, reason and sound public policy would forbid the recognition of any such rule as is contended for by the eonusel for appellant. Were such a rule established the complications arising in such cases would be infinite, and courts of chanceiy would be called upon to order tlxe investment of lax-ge sums of money and to watch over and conti’ol the investments and trustees for Ions and indefinite periods, to find in the end that the wife has died first and all has been useless trouble' and vexation. Under our laws the husband himself might be called upon by the wife, as well as she could call upon other parties,'to submit to have his money tied up in the hands of trustees for the benefit of his wife, who might claim inchoate right of dower in it, as it might have been in this case had there been no creditors. The surplus coming into the hands of the husband might be lost and dissipated by him, and if the wife had an interest, such as a court of equity could recognize, she might with propriety ask that the money should be secured in the hands of trustees till his death, the same as it is asked to be done in this case; and, logically, it could not be denied. In case there had been no credit >rs the husband could have demanded and received the money from the trustee, Ferguson, free from the claim of the wife, and no inchoate right of dower could attach, nor can it attach against the rights of creditors. As against such claim as is attempted to be enforced here the surplus in question is personal property and not realty; the wife has no dower in it.

By her own voluntary act she has allowed the realty to be converted into money, which is personalty, and failed to exact fmm her husband any security which she might have done to protect her dower in the surplus. This is not a claim that a court of chancery can recognize. The authorities cited by appellant are Denton v. Nanny, 8 Barb. 618; Vartil v. Underwood, 18 Barb. 564; Mills v. Vanvoories, 20 N. Y. 420; Maloney v. Horan, 49 N. Y. 116; Vreeland v. Jacobus, 19 N. J. Eq. 231; Wheeler et al. v. Kirtland, 27 N. J. Eq. 534; De Wolf v. James, 11 R. I. 630; Unger v. Luster, 32 Ohio St. 210. On the part of the appellees is cited 2 Jones on Mortgages, §§ 1693, 1695, in which it is said that the weight of authority is against the proposition. Dean v. Phillips, 17 Ind. 409; Newal et al. v. Lynn Savings Bank, 101 Mass. 432; Cook & Sargent v. Dillon et al., 9 la. (1 Whillow) 412; 2 Story’s Eq. Jur., § 1213, p. 629; Cooley Con., Lim., 3d Ed., p. 361; Henson v. Moore, 104 Mass. 403; Almondorf v. Lockwood, 57 N. Y. 322, 331. It seems to us that reason and the weight of authority is against the claim of appellant and the decree is therefore affirmed.


author: Lacey, P. J.

text:
    Abbie L. Waterman v. Philander M. Alden et al.
    1. Statute — Administration—Discretion of court. — Section 92 of chapter 3 of the Revised Statutes is not peremptory. It is left to the court in matters of this kind to exercise a sound discretion and to divide the assets or not, in kind, as the court may think for the best interests of all concerned.
    2. Same — Notes and accounts. — The court is of opinion that notes and accounts are not meant to be included in section 92 of chapter 3 of the Revised Statutes; that section having more particular reference to personal property subject to sale, under section 90 of the same statute.
    Appeal from the Circuit Court of Delialb county; the Hon. C. W. Upton, Judge, presiding.
    Opinion filed August 7, 1885.
    The appellant tiled in the county court a petition, July 1, 1884, showing that she was the widow of James S. Waterman, deceased, who died July 19,1883, and that deceased left a will which had been admitted to probate and that appellees had been appointed executors. That deceased left surviving no child or children, or descendants of a child or children, and that she had renounced the benefit of the provisions of said will in her favor, and had elected to take her share of her estate under the statute, amounting to one half thereof after the payments of all just debts, and that the executors have qualified as such. The petitioner showed that the inventory of the estate was of the value, at the time of the tiling the petition, of $531,428.34, of which $127,512.70 was in real estate, and the smn of $403,915.64 was in personal effects. The doubtful and desperate credits and assets of the estate were about $90,000; that the claims tiled against the estate at the time amounted t) $153,696.85, but it was charged that the real indebtedness would not exceed one fourth of the amount, and she believed much less; that there had been divided $12,-000 in cash between the petitioner and the executirs, and of certain stocks, to amount of $24,973.32, equally, by order of court. The petitioner claims that after deducting the total amount of desperate and doubtful credits and assets, together with the total amount of the claims filed against the estate and the amounts distributed by order of the court, there,remained of the estate the sum of $121,245.47, of which the petitioner claimed one half as her further distributive share; that all said personal estate was in the actual custody and control of appellees, and she prays that she have her share set apart to her without delay and offers to give her bond, as required by statute, etc., to refund any part of the estate as should thereafter be lawfully required for the payment of the proper proportion of any debts which might afterward appear against the said estate and the costs against the recovery thereof, and offers to make condition of the bond that any loss or extra expense incurred by setting apart to the executor in trust any note or other personal property which can not be collected by proper diligence, or any loss over and above the loss sustained by the petitioner, she will make good. July 28, 1884, appellees filed their answer, substantially admitting the facts charged in the petition, but for greater certainty referred to the inventory and files of the court, concerning the estate, as part of their answer. They admit that the claim will not probably be allowed to a greater amount than claimed in the petition. They are personally desirous that a distribution of the kind claimed should take place, but they state to the court that they do not believe under the law now existing in the State of Illinois, as to distribution in bind, that such distribution is practicable, because the personal property consisted of chattels and notes and other evidence of indebtedness of uncertain value, and that it is a mere matter of judgment in which different men of good understanding would probably very widely differ as to what would constitute a fair and equal division of the personal property. Appellees claim that they are not empowered as trustees, under the will, to consent to receive what, in their judgment even, might be a fair distribution of the estate, in its present condition, and object on account of the risk it would subject them to in the future to show that they had made a judicious division of the estate, and claim lack of power without the consent of the distributees. It appears from the inventory that the estate - sought to be distributed consists of about $7,000 worth of chattel property; $2,700 interest in Kansas cattle; $14,500 in contracts for conveyance of land; $182,506, notes, secured by mortgage, good; $50,000, notes, not secured, good; $7,500, notes, doubtful; $40,000, notes, desperate; also $10,000, notes, on K. W. Waterman, and one for $27,000 on L C. Waterman, desperate; stocks and bonds, etc., good, $26,000; rent due and unpaid, $2,500; book account, good, $1,300, and same doubtful, $3,000, and same desperate, $10,000, and judgment desperate for $1,300. Books show claims filed up to April 27, 1885, to be $193,805.16. One of the items of $60,-000 to $75,000 would be inventoried differently on account of change of circumstances. There was a difference in the items inventoried good, doubtful and bad; not all of any one class was equally collectible.
    The county court refused the prayer of the petition and dis. missed the same, which order was affirmed by the circuit court and the cause brought to this court.
    Mr. C. C. Bonney and Mr. J. L. Pratt, for appellant;
    cited R. S., Ch. 3, §§ 92, 93; Reynolds v. People, 55 Ill. 328; Dixon v. Buell, 21 Ill. 203; Moore v. Rogers, 19 Ill. 347.
    Messrs. Carnes & Denton and Messrs. Wilson & Moore, for appellees.
   Lacey, P. J.

The question arises in this case whether it was the duty of the court to order the distribution of the estate in kind, giving a portion of the notes and property to one and a portion to the other. It is claimed by appellants that Section 92 of Chap. 3 of the Be vised Statutes authorizes and requires this to be done.

The statute is as follows:

“If the sale of the personal property is not necessary for the payment of debt- or legacies, or the proper distribution of the effects of the estate, the court may order that the property be preserved and distributed in kind.”

It may be doubted whether the above statute has reference to dioses in action and other claims that merely have to be collected and are not to be sold by the administrator for the payment of debts. The statute in words refers to personal property, the sale of which is not necessary for the payment of debts or for distribution, or the payment of legacies.

Jiotes and accounts, of which the estate in question chiefly consists, are not required to be sold by the executors. It is their duty to collect them and pay over the proceeds to the parties entitled to them. It would be only by implication that notes would be included. But whatever construction may be placed on the above section of the statute in regard to the distribution of the notes and accounts, it appears quite clear that the statute is not peremptory. It provides that the court 7)lay divide the assets in kind, but does not say that it shall do so. It appears to us that it is left to the court, in matters of this kind, to exercise a sound discretion and to divide the assets or not, in kind, as the court may think for the best interests of all concerned. The very terms of the statute so implies. It provides that the personal property may be distributed in kind, 1, when it is not necessary to sell it to pay debts or legacies; 2, when not required to be sold in order to properly distribute the estate. Who is to decide as to whether the collection of the notes and accounts is necessary for the proper distribution of the assets? Evidently it is the business of the county court to pass upon that question, and it necessarily must have a large discretion in the matter, which the circuit or appellate court ought not lightly to interfere with. We do not wish to hold that in no case would its discretion be interfered with by this court, but we think clearly this is not one of the cases.

In so large an estate as this, with such a variety of personal property, consisting of notes and accounts of different quantities and grades and other personal property, it would appear to be a very difficult task to make a proper distribution of the personal assets in kind, attended with considerable risk of great complications that might arise in consequence of such an attempt.

Then there were a large amount of debts and claims filed against the estate at the time of the filing of the petition, amounting to $153,690.85, and at the time of hearing they had increased to $193,805.16, none of which had been allowed. The widow, under the above section of the statute, would have no more right to select her share, which would come to her as an heir of the estate, than the appellees would representing the other heirs. In case no agreement could be arrived at by the appellant and appellee, the court would have to appoint a commission to make partition, or hear evidence and decide for itself, and to declare first what” should be retained for the payment of debts and then what each heir should have. Evidently the simplest and best way would be to allow the appellees to settle the estate in the ordinary way, after collecting the notes and accounts.

Under the circumstances and in the condition this estate is it would have been manifestly improper to order a distribution of any portion of it in kind, even if, under any circumstances, such distribution would be legal under the statute, which we are inclined to hold that it would not, notes and accounts not being meant to be included in section No. 92 of the statute, that section having more particular reference to personal property subject to sale under section 90 of the same statute. The judgment of the court below is therefore affirmed.

Affirmed.


text:
    John Schroeder v. Thomas Walsh.
    Instructions. — The court is of opinion that the instructions'upon fraudulent sale stated the law accurately and correctly, and therefore the judgment is affirmed.
    Appeal from the Circuit Court of Grundy county; the lion. Charles Blanchard, Judge, presiding.
    Opinion filed August 7, 1885.

      Mr. P. A. Armstrong and Mr. L. H. Bisbee, for appellant.
    Hr. S. C. Stough, for appellee.
   Lacey, P. J.

The appellant was the sheriff of Grundy county, and as such levied a writ of attachment in favor of Wm. Young & Co. v. Ward & Pierce, issued September 26, 1878, on a stock of goods worth about $2,200, as is claimed, as the property of Ward & Pierce. The appellee replevied them, and upon a trial the jury found the issues for appellee, and the motion for a new trial having been overruled, this appeal was taken. The appellee claimed the title to the goods by virtue of a sale of the goods to them by Ward & Pierce, September 17, 1878. The appellant con. tended and tried to show on the trial that the sale from Ward & Pierce to appellee was fraudulent, and made for the purpose of hindering and delaying creditors; on the other hand appellee contended that the sale was bona fide, and made without fraud and in good faith for a valuable consideration of 82,000.

The evidence was mainly directed to this issue on the one side and the other, and upon the evidence, under the instructions of the court, the verdict of the jury was for appellee, and sustained the sale.

There is no dispute but that there was valid delivery of the possession of the goods by Ward & Pierce to appellee at the time of the sale and before the levy of the appellant’s attachment, and the main question was as° to the good faith of the transaction. This cause was in this court before, and reversed on account of the error of the court in matter of law, and will be found reported in 10 Bradwell, 36.

The facts of this case and the sale were one of a series of sales and transactions of Ward & Pierce, who, becoming insolvent, made sale of this stock of goods to appellee; and Samuel Ward, of the firm, about the same time made sale of his real estate, two deeds to appellee and one to one Willard Small, both sons-in-law of Samuel Ward. One of the deeds to appellee was for 88i acres, worth about $35 to $10 per acre, and another, the store building and lot occupied by Ward & Pierce, both subject to mortgage. The other deed was to Small, of 113 acres of land, and also contract for the purchase of sixty acres upon which some payments had been made, one James Seamark being the owner and holder of the legal title. These sales of the real estate were attached by Wm. Young & Co., in a bill in equity to set aside the conveyance for the benefit of their judgment against Ward & Pierce, and was tried by the circuit court, and decree sustaining the deeds, and Wm. Young & Co. have brought the case here by appeal, and it is numbered 1360, and we have tried it in connection with this suit. But in this case we have nothing to do with any matter except the sale of the goods. We will not undertake to examine the evidence in detail; but content ourselves in stating our conclusions.

We are well satisfied that the evidence is abundantly sufficient to sustain the verdict if the court made no mistake in laying down the law to the jury, and of this complaint is made by appellant. Instructions Ao. 4, 6, 7, 8, 9, 11 and 16 and the modification of appellant’s last instruction are complained of. We have examined the alleged error and find no substantial cause for complaint. The criticisms on the 4th instruction, that it required the appellee to make out the charge of fraud by direct and positive evidence, is not well taken. We only required the appellant to make out the charge of fraud by a preponderance of the evidence, and there is nothing in the instruction to lead the jury to think that the court meant positive evidence, and the other instructions plainly told the jury that fraud might be made out by proof of circumstances; and for the same reason the objection made to the appellee’s 6th instruction is not well taken. The 7th instruction, that no presumption of fraud attached because appellee dealt with his friends, and that a man in failing circumstances has a right to prefer one creditor to another, to so dispose of his property that one creditor will receive his pay in full and another nothing, is not xvell taken. We see no good objection to that instruction. Certainly there could be no presumption of fraud merely because the vendor dealt with his friends, either f rima facie or conclusive.

Similar objections are made to the other instructions named and are not substantial. The modification of appellant’s last instruction could not mislead the jury, and in fact we can not see from the abstract what the modification was, if any. The instructions given on the part of appellant were so full and particular on all the real questions of law involved that we are unable to see how the jury could have been misled.

We see no valid reason for the reversal of the judgment and it is therefore affirmed.


text:
    William Young & Co. v. Ward & Pierce et al.
    Fraudulent conveyance. — Although appellees were the sons-in-law of A, and the conveyances in question were no doubt made by A for the purpose of favoring appellees, to secure their claims in preference to appellants and other creditors, yet, after a careful examination of the evidence, the court is unable to say that there was any fraudulent intent on the part of the appellees.
    Appeal from the Circuit Court of Grundy county; the Hon. George W. Stipp, Judge, presiding.
    Opinion filed August 7, 1885.
    Messrs. Bisbee, Ahrens & Decker, for appellants.
    Mr. S. C. Stough, for appellee.
   Lacey, P. J.

This was a hill in equity to set aside certain conveyances of real estate, executed by Samuel Ward, now deceased, to appellees, Thomas Walsh and Willard Small, in the nature of a bill of discovery on the part of the appellants, to subject the land to sale to satisfy certain judgments in their favor upon which executions issued and were levied on the lands in question.

Two deeds are attacked and sought to be set aside as fraudulent — one by Samuel Ward to Thomas Walsh, for 8S£ acres of land, made at or about the time the firm of Ward & Pierce failed, Ward being one of the members of the firm, and the other deed to Willard Small, one of the other appellees, for 113 acres of land by the same grantor. It is sought to set aside these conveyances for alleged fraud in the sales, it being charged that the conveyances were made for the purpose of hindering and delaying creditors and were not bona, fide. It is true that the appellees were the sons-in-law of Samuel Ward, and that the conveyances were no doubt made by Ward for the purpose of favoring the appellees, to secure their claims in preference to the appellants and other creditors; but after a careful examination of the evidence we are unable to say that there was any fraudulent intent on the part of the appellees. It will not be necessary for ns to go over the evidence in detail as it would serve no good purpose; but as to the deed executed to Thomas Walsh for the 8S-J-acre tract, we think the evidence is clearly in his favor, and shows that there was no bad faith or desire on his part to defraud the creditors of Ward, but simply to secure himself.

We find as to the 113-acre tract deeded to Willard Small, while the evidence is not so clearly in his favor, yet we think there is not sufficient evid'ence of fraud in the transaction to warrant the court in setting aside the deed. The land was incumbered by mortgage to the Morris Bridge Company for nearly its full value.

The debt that Ward & Pierce owed Small, amounting, as testified to by Ward, to something like $416, which was turned in by Small on the purchase of the land, was, with the mortgage, enough to cover the full value of the land, and in this respect Ward received the full value of the laud; and we see no sufficient proof than Small did not purchase the land in good faith for the purpose of securing his indebtedness against the firm of Ward & Pierce, and no proof that it was for the purpose of hindering and delaying creditors. This seemed to be the only way that Small had to save his own indebtedness. The land was all he could get, and he took it and has redeemed it from the mortgage. The case of the lots sold to Thomas Walsh is not before us, the circuit court not having passed on that branch of the case, it having been continued, as shown by the recitals in the decree, by agreement; and for that reason we think no error can be assigned here that that branch of the case was not heard.

The case of the 60 acres for which Samuel Ward held a bond for deed from Seamark, and on which he had made partial payments, and which had been by Samuel Ward transferred to Willard Small, can not be reached in this proceeding, if at all; because Seamark forfeited the bond and declared the sale void for non-payment of interest and principabas the evidence shows. The point made is that Seamark’s claim was a mortgage in equity, and that he held the title only as security for money. However that might have been in the original contract, a question not necessary to decide, the nature of the contract was changed and a new bond given by Seamark to Ward which fixed the title in Seamark subject to the bond, and with condition of forfeiture in the bond for non-payment of interest and principal; and the conditions of the bond not having been complied with, the bond was forfeited by Sea-mark and he became the absolute owner of the land. If Sea-mark afterward voluntarily gave Ward anything, that was his own business, but it is clear he did not intend to hold himself bound to pay anything to Ward. This case grew out of the same series of transactions, or a portion of them, as was developed in the case of the sale of the goods to Thomas Walsh; and the question of the validity of the sale of the goods by Ward & Pierce to Walsh was tried in a replevin suit wherein Walsh was plaintiff and John Schroeder was defendant, he being: sheriff and having levied an attachment writ on them in favor of appellants; and the title of the property was adjudged in Walsh by the court and appealed by Schroeder to this court and is No. 1359; and the judgment therein has been affirmed by this court. The two cases were considered together. The decree of the court below is therefore affirmed.

Decree affirmed.


text:
    Chicago & Eastern Illinois R. R. Co. v. Thomas McKnight, Adm'r, etc.
    1. Negligence. — The court is of opinion that the position of appellee on the hand car was not that of trespasser, but that she was there by appellant’s permission, and occupied the same position as the railroad section men, who were on the hand car for their own accommodation and not for any profit or business of the company; and that she was bound to use ordinary care, and is chargeable with the gross negligence of the section men.
    2. Signals, at crossing. — The statute requiring the bell to be rung or the whistle sounded eighty rods before reaching a crossing, was intended to protect persons crossing, and has no reference to cases where the injury occurs to persons traveling on the railroad track.
    Appeal from the Circuit Court of Iroquois county; the Hon. Franklin Blades, Judge, presiding.
    Opinion filed August 7, 1885.
    This suit was brought by the appellee to recover damages for the wrongful killing of Barbara McKnight, on Feb. 21, 1883, by the train of the appellant, which was a construction train with a caboose attached, and was backing from Milford to Wellington on the track of the railroad. The deceased, with James McDonald and William Coffee, section men on the appellant’s road, and Thomas Connors, section foreman on the west end of the Wellington and Cissna branch of the road, and his son, Dennis Conners, section man under his father, was on a hand car going north from Wellington; just out from the station it collided with a construction train in charge of James Sevan, road master, which was backing south, meeting the approaching hand car, whereby the deceased and McDonald were instantly killed. The negligence charged in the first count of the declaration is that the appellant backed the train in such a careless and reckless manner, without any light attached thereto, and while the appellee was in the exercise of due care, that the injury was caused thereby; that the only light was a small red light which could not be seen by the deceased in time to avoid collision. The second count charges the negligence of appellant to have been in not ringing the bell or sounding a whistle for the crossing, as required by the statute, averring that appellee was riding on the hand car with all due care, within less than eighty rods of the crossing of the public highway over said road.
    It appears that deceased lived at a station called Lyford, situated on a branch of the road forming a junction with the main line about two miles north of Wellington, and kept a boarding house for boarding the railroad employes, among them some if not all the men who were on the hand car at the time of the accident, and on this day had come to Wellington on the hand car to receive their pay. The deceased received her pay from the appellant for the board of its employes direct, and came on the same errand with the men on the hand car. Lyford was some six miles off the main line. The construction train was in the habit every morning of starting outfrom Danville and running ahead first to Watseka, where they were repairing the track, where there had been a washout, and then on account of the ice and snow in the turntable preventing it from being turned, the train was backed to Danville and put off the men along the line at their homes, where they had gathered them up in the morning. The deceased and the other parties on the hand car were paid off in Wellington about five o’clock in the afternoon, and stayed around in Wellington till the time they started hack, about seven o’clock, and after it had become dark.
    The deceased, at the time of the accident, was standing up between Coffee and Thomas Conners, and McDonald had charge of the hand car on which they were all riding. There was a red light hanging down at the end of the caboose car, which was being propelled in rear of the engine and was the furthermost car going south and could be seen by the persons on the hand car. Just after the hand car started with all on board, all working the levers of the hand car, it was on a down grade just between the elevators where they started, and they were going at a good rate of speed, when Coffee noticed a red light away off in the distance from him and spoke of it to McDonald and said “ There is a red light; there is a train, I guess, coming agin ns.” Tie, McDonald, looked around and said it was the red light of the other train; he turned around and went to work and that was all Coffee knew till they were struck. The persons on the hand car made no attempt to stop it, but went on with increased speed and no more thought of it. Coffee saw the red light again just as they were going to strike. The men on the construction train testify that at the time of the collision it "was not running to exceed ten or twelve miles per hour, while some of the by-standers testify it "was running at a rate of thirty miles per hour. Some of the witnesses testify that Coffee said, “There is a train coming this way,” and that McDonald said, “ No, it’s going the other way.” McDonald had been working on railroads for the last twenty-two years. He worked on all parts of defendant’s road and on the construction train. Conners had been working six or seven months. Coffee had been working seven or eight years. We think that the evidence will warrant the inference that the deceased was on the hand car going to Wellington and returning by permission of the road master the'same as the men on the hand car, who were making the trip by permission and license of the appellant.
    The evidence shows that these section men who were on the hand car, knew that it was their duty to expect a train at any time and they should keep a lookout at all times. They also knew the manner in which the construction train was run and the kind of light it had.
    Mr. William Armstrong, for appellant;
    that deceased was a trespasser at the time of the accident, cited I. C. R. R. Co. v. Godfrey, 71 Ill. 500; I. C. R. R. Co. v. Hetherington, 83 Ill. 510; C., R. I. & P. R. R. Co., v. Todd, 91 Ill. 35; C., B. & Q. R. R. Co. v. Johnson, 103 Ill. 524.
    The statute requiring the railroad company to ring a bell and sound a whistle, does not apply where persons are on a, railroad track at a point aside from a highway crossing: 1 Thompson on Negligence, 452; Rohback v. Pacific R. R., 43, Mo. 187-194; Phil. & R. R. Co. v. Spearen, 47 Pa. St. 300; O’Donner v. Prov. & W. R. R. Co., 6 R. I. 211; Ernest v. Hudson R. R. Co., 35 N. Y. 9; Elwood v. N. Y. Cen. & H. River R. R. Co., 4 Hun, 808; I. C. R. R. Co. v. Modglin, 85 Ill. 481; P. P. & J. R. R. Co. v. Siltman, 88 Ill. 529.
    Messrs. Doyle, Morris & Pierson, for appellee;
    as to comparative negligence, cited C. & A. R. R. Co. v. Bonifield, 104 Ill. 225; G. & C. U. R. R. Co. v. Dill, 22 Ill. 264; I. & St. L. R. R. Co. v. Stables, 62 Ill. 316.
   Lacey, P. J.

The appellant insists that the position of the appellee in being on the hand car was that of trespasser, but we are inclined to the opinion that the evidence warrants the belief that she was not a trespasser, but that she was there by its permission, and occupied the same position as the railroad section men who were on the hand car — that of persons riding on the hand car for their own accommodation, and on account of their own business, and not for any profit or business of the company. These employes of the appellant who were on the hand car were not, at the time of the collision, in the line of their duty, as employes engaged in the business of the company, but were going on their own business the same as deceased. The deceased then would occupy the same position, and ivould be chargeable with her own negligence as well as the negligence of those in whose care she had intrusted herself.

It is claimed that the deceased was bound under the circumstances to use extraordinary care; but in accordance with the view we take of the case it will not be necessary to decide that point, for at least she was bound to use ordinary care, and is chargeable with the negligence of McDonald and Conners and Coffee, who had control of the hand car, and in whose care she was, and who were not at the time the servants of the appellant, engaged in the line of their employment. The going upon the railroad track, in the hand car, in the night time, knowing full well that a construction train was liable to meet them at any time, without taking great precaution to avoid collision, was an act of negligence; but rushing on to the approaching train, after seeing the light on it, paying no heed to it, was an act of gross negligence, and would prohibit recovery. To approach with their hand car after having seen the light on the approaching train, without taking any precaution to investigate what the light was, whether the train was approaching or receding, was a most reckless act under the circumstances. By halting they could have soon discovered that the train was approaching and not departing. This, coupled with the fact, known to the parties, that ordinarily a person on a hand car can not hear the whistle or bell sounded on the approaching train, or the noise of its approach, should have made them still more cautious alter seeing this light. Coffee and McDonald saw this light, and on their judgment that it was on a retiring train, at the same time knowing it was impossible to tell whether the train was approaching or not, dashed on reckless of consequences to their destiny. What reasonable man under such circumstances would have so acted? Alice Burling, Admx., v. Illinois Central Railroad Co., 85 Ill. 18, is very much in point in comparison of facts with this case, and there the Supreme Court held that the facts, if found in favor of appellant therein, would not support a verdict. In that case, as in this, it was a collision of an engine and train with a hand car, and in that case there was no head-light on the train, and there was no light on the hand car. While the court held that it was a high degree of negligence to run a train without a head-light, yet it also held that the deceased in that case was so grossly negligent that a verdict in favor of his administrator would have been set aside. But in the case before us the light of the approaching train was actually seen, but no attention whatever paid to it; the meeting of trains in the case above cited was almost certainly to have been anticipated. The statutory negligence claimed, that the bell was not rung or the whistle sounded eighty rods before reaching a crossing can not be set up by the appellees in this case. The deceased was not injured at the crossing, and does not come within the meaning of that statute. That statute was intended to protect persons in crossing, and has no reference to cases like this, where the injury occurred on the railroad track of the appellant. The omission to comply with the statute can not, in a case like this, be set up as ground of recovery, W., S. L. & P. Ry. Co. v. Neikirk, 15 Bradwell, 172; Same v. Same, 13 Bradwell, 387. It is not necessary to pass on the instructions as the judgment must be reversed on the facts. The judgment is therefore reversed.

Judgment reversed.


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    Peter Eichorn, Sr. v. Theodore H. Peterson et al.
    Forcible detainer — Election to renew. — An original lease was executed by appellant and contained a covenant against assignment, and with a provision that the lessee “ should have the privilege to a further lease of five years after the expiration of this term.” The lessee made two assignments of the lease with the assent of the appellant in each case. The five years having elapsed, appellees, to whom the lease was last assigned, elected to renew. Appellant brings an action of forcible detainer against appellees. Held, that under the statute as amended, appellees have a right to defend under the covenants in the lease, paying all installments of rent as they become due. The substantial right of appellees to the possession of the lot is the «ame whether they have a covenant for a lease or a lease written out in due form of law.
    Appeal from the Circuit Court of Peoria county; the Hon. John Burns, Judge, presiding.
    Opinion filed August 7, 1885.
    Messrs. Worthington & Page, for appellant;
    cited Finney v. Cist, 34 Mo. 305; Ridgeley v. Stillwell, 28 Mo. 400; Hunter v. Silvers, 15 Ill. 176.
    Mr. I. C. Edwards and Mr. George B. Foster, for appellees;
    that the acceptanee of vent from an assignee or purchaser of the lessee will preclude the lessor from insisting upon a forfeiture on the ground the assignment was made without his written assent, as provided in the lease, cited Webster v. Nichols, 104 Ill. 160; Ireland v. Nichols, 46 Ill. 413; Shattuck v. Lovejoy, 8 Gray, 204.
    A covenant to renew runs with the land: Piggott’v. Mason, 1 Paige, 412; Wood’s Landlord and Tenant, 515-675; Wilkinson v. Pettit, 47 Barb. 230; Newman v. Orpon, 4 Wis. 335.
    There is no legal distinction between the character of a covenant to renew, and a covenant providing for an optional extension of the term of the lease; both run with the land, and all covenants in a lease that run with the land, pass by an assignment to the assignee, and may be enforced by him: Wood’s Landlord and Tenant, pp. 512-515; Wilkinson v. Pettit, 47 Barb. 230.
   Lacey, P. J.

This was an action in forcible detainer bv appellant against appellees, to recover possession of a brick building, cellar and yard on lot 1 B 5, in the original plat of the city of Peoria. The original lease was by appellant to James Gillig, and ran from 7th of August, 1879, to 1st of August, 1884, at a rental of $40 per month, with a covenant against assignment, and with a provision that Gillig “should have the privilege to a further lease of five years after the expiration of this term.” Gillig assigned the lease to Gipp & Co., and the latter to appellee, with the assent of the appellant to the assignments. The appellee was successful in the court below. The condition in the lease for renewal seems to be an agreement on the part of appellant to execute a new lease to the lessee, and the lease is not in law a ten years’ term at the option of the lessee. Such covenant could properly be enforced in a court of equity the same as a contract for conveyance of real estate. It is supposed by appellant’s counsel that Hunter v. Silvers, 15 Ill. 176, holds that such an agreement for extension could not be set up as a defense in this action; that the remedy would be in equity to enforce specific performance of the contract. But it will be observed that at the time that ease was decided, the statute on the subject of forcible detainer was in force which authorized a recovery in forcible detainer when the time for which the lease was to run' by its terms had expired. Sec. 1, Act 1845. The act, however, was amended in 1872, changing the statute so as to allow the recovery only in case the term had expired and the lessee was holding without right. Sec. 2, Act 1872. In actions of ejectment as between vendor and vendee, the latter can set up the contract of purchase as a defense to the action. Stone v. Russell, 31 Ill. 18, and Sloan v. Petrie, 16 Ill. 262. So here the appellee must be considered to have the right to defend in like manner, in accordance with the provisions of the amended statute. He has the right to the execution of a new lease for five year’s, and is in possession under it and the agreement for extension contained therein, and it is only the appellant’s fault that he has not received the new lease. Hothing is more just than that he should be allowed to defend under the covenants in the lease, paying all installments of rent as they become due. It is the appellant’s fault alone that the appellee is without a written lease, and only has a covenant for one. The substantial right of the appellee to the possession of the lot is the same, whether he has a covenant for a lease or a lease written out in due form of law. The difference is only one of form, and the appellant is in fault in not putting it in form. The judgment is therefore affirmed. Affirmed.


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    Louis Sues v. Fredericka Althen Leinour.
    I. Dower — Judgment creditor — Lien made specific. — Where land belonging to A was subject to three mortgages, and appellant recovered judgment against A, and within one year execution was duly is.-ued thereon and placed in the hands of the sheriff for collection and by him returned nulla bona, and A, appellee’s husband, having died intestate, upon the foreclosure of said mortgages appellee and appellant were both made parties to the suit, and appellee put in a claim, by way of answer, to her dower in the surplus, and appellant his claim to the amount of his judgment lien on the land in the surplus, and the amount of his debt was decreed to be paid to him after taking out the amount of the widow's dower. Held, that the decree of foreclosure fixing the lien of the appellant on the realty and on the surplus had the effect to make it spec,fíe and to establish the rights of appellant to the surplus, just as securely as it could have been done by levy and sale.
    2. Subsequently acquired bent — Widow's award. — Where it appeared that certain moneys in the hands of the master were received by him for rents becoming due on the property in question between the date of the master’s sale and the time of redemption, and this money was claimed by appellant to be properly applicable to the payment of his judgment. Held, that the claim is good, subject, however, to the widow's right of dower. The widow not being a “ creditor of the ancestor ” in respect to her award, could not claim this rent under the statute. (R. S., Ch. 59, §12.)
    Appeal from the Circuit Court of DeKalb county; the lion. Charles Kellum, Judge, presiding.
    Opinion filed August 7, 1885.
    On the 1st day of May, 1874, John Aithen and appellee, who was then his wife,' having since his death intermarried writh Leinour, executed a mortgage to R. L. Devine for $2,500 on his business block, which was worth about $6,000. On the 18th day of February, A. D. 1875, said Aithen and appellee, his wife, executed a second mortgage on the same premises to Henry Roth to secure payment of note for $100. On the 11 th June, 1874, the same parties executed another mortgage on the same premises and also his homestead property1, to Daniel Pierce, to secure the payment of note of said Aithen for $1,000, the notes all bearing interest at the rate of ten per cent, per annum. On the 23d day of May, A. D. 1876, appellant recovered a judgment in the circuit court against the same John Aithen for the sum of $919.23 and costs, and within one year after the recovery of the judgment, execution was duly issued thereon and placed in the hands of the sheriff for collection and by him duly returned, nulla bona. On the 23d day of October, 1879, John Aithen died intestate, leaving surviving him his widow, the appellee, and one child. On June 18, 18S0, John Plain became the owner by assignment of the said two notes and mortgages so executed to said Devine and Pierce respectively. On the 4th day of May, 1880, all the said notes having become dne and being unpaid, Henry Both commenced his suit of foreclosure in the circuit court to foreclose his said mortgage, and on the 18th day of June; 1880, said John Plain filed his said cross-bill in said suit to foreclose his said two mortgages, making appellee and appellant parties defendant to said cross-bill, and both appeared and filed their answers thereto. Tiie appellee set up and claimed her rights of homestead on her homestead lot, and her dower right in the other surplus after paying the mortgages, costs, etc. Appellant set up and claimed his rights as judgment creditor, and asked that the surplus that might remain after payment of the mortgages and costs of foreclosure might be paid to him as judgment creditor. On the loth day of December, 1883, the circuit court entered its decree in said foreclosure proceeding in and by which decree it was found: That there was then due and unpaid to said John Plain upon his said note and mortgage as assigned to him by said Devine, the sum of 83,574.20, and upon his said note and mortgage so assigned to him by said Pierce, the sura of 81,686.30, and that said John Plain was entitled to a decree of foreclosure and sale on his said mortgages for said amounts, and that said Henry Both was entitled to a decree of foreclosure and sale on his said mortgage for the sum of $750.96, which sum was found due and unpaid to him; that said mortgages were liens upon the premises covered by the same, in the order as above stated, except that said Pierce mortgage was a first lien on said homestead premises; that upon sale of said mortgaged premises and from the proceeds thereof, after the payment of the amount so dne upon the mortgages as above stated, and the costs of suit and of sale, if any surplus there should be after such payments, the said Fredericka Althen is entitled to dower, and after the payment to her of her dower therein there should first be paid the said judgment in favor of Louis Sues, upon which judgment there was then found to be due said sum of$1,342.70, and which judgment washy said decree found to be a lien upon all of said premises; that in and by said decree it was ordered, adjudged and decreed, that unless said several sums of money, so found due to said mortgage creditors, should be paid to the several parties entitled thereto within ten days from the filing said decree, with interest thereon from the date of said decree, together with all costs, that said mortgaged premises should he sold by the master in chancery, etc., and that at such sale the homestead lot should be first sold to satisfy the Pierce mortgage. That the said master should pay out and distribute the proceeds of such sale after paying costs: first, the amount due on the Plain mortgage; second, amount due on the Both mortgage; and third, that the master bring the iv-sidue into court to abide the order of court.
    In pursuance of this decree the master made the sale, and after payment of all the mortgage indebtedness and costs there remained a surplus in his hands of $677.85, which was reported to the court, and the report approved February 28, 1881. That on the 2d day of February, A. D. 1884, said Fredericka Leinour (formerly Althen) filed her petition in said suit, asking that said surplus and the rents hereinafter mentioned be distributed to her; that her dower be first assigned to her out of said surplus, and out of said rents, and that the balance of said surplus and rents be paid to her as administratrix of the estate of John Althen, deceased, to apply upon her award as such widow of John Althen, deceased;, that on the 12th day of March, A. T). 1881, said Louis Sues filed in said circuit court his answer and cross-petition to said petition of said Fredericka Leinour, asking that said surplus and said rents hereinafter mentioned be distributed to him-to apply upon his said judgment; that on the 26th day of January, A. I). 1884, said Fredericka Leinour was by the county court of said De Kalb county, duly appointed administratrix of the estate of John Althen, deceased, and letters of administration were by said county court, on said day last mentioned, duly issued to her, and she gave bond and duly qualified as, and still is, such administratrix; that appraisers were duly appointed by said county court to appraise the personal propertjr belonging to said estate, and to fix the amount of the widow’s award; that the appraisers fixed the amount of her award at §900; of that amount she received the amount of the personal property to amount of §98.40, and the balance of §801.60 was allowed against the estate as of second class claims. That the stone building would continue to be rentable, until the time of redemption expired, at §600 per year. On .February 14, 1883, the court ordered the master to collect such rents from and after loth January, 1884, till further order of court. On the 9th April, 1854, upon a hearing of the petition of appellee and cross-petition of appellant, a decree was entered by the court awarding to appellee as follows: First, dower in the sum of §140 amount of surplus; second, the rents to accrue and fall due after the sale and up to the time of redemption, and the balance of the surplus of §536.85, remaining after deducting dower of §140, to be applied to the payment of her award allowed by the county court against the estate of John Althen, deceased. The court further decreed that the master collect the above mentioned rents, and from time to time pay them to appellee; to all which proceedings the appellant duly excepted.
    Mr. A. J. Hopkins, Mr. N. J. Aldrich and Mr. George W. Dunton, for appellant.
    Mr. L. Lowell and Mr. J. J. Flannery, for appellee.
   Lacey, P. J.

The question presented in this record is whether the appellee is entitled to dower interest in the rents subsequently accruing, for it is conceded by appellant that she is entitled to dower out of the surplus.

The point of law on which the appellee rests her claim is that the lien of the appellant created by his judgment was only a general one and not specific, and that by the sale of the premises the character of realty was extinguished as to all the surplus, and as against appellant’s judgment the surplus was freed from the general statutory lien, and was and became personal property in the hands of the master, liable to general distribution, after being paid to the administrator, to the general creditors of the estate, and the appellee’s claim being first in order of payment must be paid first.

The court below seemed to take this view of the law, and, therefore in its final decree found “ that the appellant had not made his lien specific before said foreclosure sale, either by sale under or levy of execution issued on his said judgment in respect to the property sold under said decree of foreclosure.”

On the other hand it is contended that the appellant’s judgment lien was made specific by his position in the foreclosure suit, and by the decree oí the court declaring his lien and right to the surplus.

This is one of the questions this court is called upon to decide and the main one. The ease of Pahlman et al. v. Shumway et al., 24 Ill. 128, is relied on by appellee as being in point and as proving the right of her claim here contended for. In that case one Bossiter and wife executed a trust deed to Shumway to secure certain indebtedness, and afterward Shumway sold the premises under a trust deed, and after paying the mortgage there remained a surplus in his hands. There were some judgment creditors of Bossiter, whose judgments were subject to the trust deed wdio had not levied on the land. The surplus was claimed by the judgment creditors and also by the executor of Bossiter, and on a bill of inter-pleader filed by Shumway, and the case going to the Supreme Court, the court decided that the administrator was entitled to the surplus. The court declared that the judgments were liens on the land subject to the trust deed, but that in order to make the claims available the judgment creditors should have caused the lands to have been levied on and sold subject to the deed, but not having done so the sale under the deed reduced the surplus to personalty, to which the general judgment lien did not attach.

We think there is a distinguishable difference between this case and the one cited. In that case the sale took place before any attempt was made to make the lien specific, and the adjudication took place after the sale under the trust deed. In this case the suit of foreclosure was pending, in which suit appellee and appellant were both parties, and in which the appellee put in a claim by way of answer to her dower in the surplus, and the appellant his claim to the amount of his judgment lien on the land to the surplus, and thus the matter stood until the decree of foreclosure was parsed, Dec. 15, 1883, in which the rights of the parties were declared by the court, and the amount and grade of appellant’s lien fixed and the amount of his debt decreed to be paid to him after taking out the amount of the widow’s dower; and because of the uncertainty of the amount, it was decreed to be brought into court subject to the order of court. The next mouth following this final decree, appellee, on 28th January, 1834, was appointed administratrix of the estate of John Althen, deceased, and the proceedings commenced which finally culminated in the final decree awarding her the surplus. Not a word of this claim was heard till after the decree of foreclosure was passed, and no pretense of priority till after the sale, when the claim in question was for the first time made. We think that the decree of foreclosure fixing the lien of the appellant on the realty and on the surplus, had the effect to make it specific, and to establish the rights of appellant to the surplus just as securely as it could have been done by levy and sale. In the foreclosure proceeding the appellant need not file a cross-bill, for he had no right to ask for a foreclosure in his favor on a mere judgment, but did have the right, when made a party to the foreclosure proceedings, to ask to have his interest protected, and to have decree in his favor for the surplus. It was not at all necessary to file a cross-bill. He had a right in his answer to have his lien declared, which was done in this

case. This has been the established and recognized rule in courts of equity in this State for many years. Ellis v. Southwell, 29 Ill. 549; Walker et al. v. Abt et al., 83 Ill. 226; Crocker et al. v. Lowenthal, 83 Ill. 580. It was said in the Ellis-Southwell case above, It seems to be the practice on a bill of foreclosure to make all incumbrancers parties, and upon passing a decree of foreclosure to ascertain and settle the right of all the parties, decree the payment of the mortgage debt, and on default, a sale of the premises, and the application of proceeds in satisfaction of each incumbrance according to priority and the payment of any surplus to the mortgagor.” In the case of Sherman v. Skinner above cited, it was held that judgment creditors were necessary parties, and that it was proper for a decree in case of foreclosure to protect their interests and to order the surplus in the master’s hands after paying the mortgage to be paid to such judgment creditors. We can perceive no reason why the lien of the appellant was not made specifically and determinatively as though an execution had been issued on his judgment and a levy made. He manifests his intention to rely on this surplus for the payment of his judgment by claiming it in his answer and obtaining the decree of the court in his favor, and in a case over which the court had jurisdiction and power. After this decree of foreclosure passed, an execution and levy would have been improper and a useless expense and costs, and no doubt would have been restrained if attempted by order of court, if its attention had been called to such an attempt on the part of the appellant. We therefore conclude that the court below had no right to set aside the decree in favor of appellant giving him this surplus. The lien was continued in the surplus by virtue of the proceeding in the foreclosure suit just as effectually as it would have been by levy and sale of the equity of redemption.

It appears that certain moneys are in the hands of the master, received by him for rents becoming due on the property in question between the date of the master’s sale and the time of redemption, and this money is claimed by appellant to be properly applicable to the payment of his..judgment. We think the claim is good, subject, however, to the widow’s right of dower.

This rent would properly go to the heir at law of the deceased, Althen, but as by Sec. 12, Chap. 59, R. S. 1874, the heir in respect to such rents is liable to pay the debts of the ancestor, and liable in this case to pay such rents or the value thereof to appellant if proper suit is brought, and this matter being in a court of equity, it will proceed to appropriate it to the payment of the debt against the ancestor, the appellant herein, and not require the appellant to proceed at law under the statute. The widow not being a creditor of the aneestor” in respect to her award, could not claim this rent under such statute. We therefore think that appellant is entitled to this rent, after deducting the one third for the widow’s dower.

For these reasons we reverse the decree and remand the cause, with directions to render a decree in accordance with this opinion.

Decree reversed and cause remanded.


author: Davis, P. J.

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    Christian Linch et al. v. The City of Litchfield.
    1. Suit on bond — Sureties’ liability. — Where sureties for a defaulting city clerk are sued upon their bonds, which bonds are conditioned that the said clerk should well and truly perform all and every act and duty enjoined on him by law to the best of his skill and ability, and should justly, fairly and promptly account for and pay over and deliver all moneys and other property that might come into his hands by virtue of his said office, said sureties can not be held responsible for sums of money that may be collected by such clerk where there was no ordinance or by-law which authorized or made it the duty of such clerk in the discharge of his duty to collect such sums of money.
    1. Publication of ordinances — Evidence.—Where the law provides that proof of publication of ordinances shall not be necessary until denied under oath. Held, that information and belief can not supply the place of a positive allegation of the non-publication as required by law.
    Appeal from the Circuit Court of Montgomery county; the lion. Jesse J. Phillips, Judge, presiding.
    Mr. James M. Truitt, for appellant;
    as to publication of ordinances, cited Gaddis v. Richland Co., 92 Ill. 119; Peoria & O. R. R. Co. v. Neill, 16 Ill. 269.
    Where the objections to evidence may be removed by other proof, specific objections and not general ones must be interposed: Harvey v. Dunn, 89 Ill. 585; Wilson v. King, 83 Ill. 232; Sidwell v. Schumacher, 99 Ill. 426.
    The power to tax and assess water rates conferred on the city must be exercised by the city council and can not be delegated to any officer or committee: Thompson v. Schermerhorn, 2 Seld. (N. Y.) 92; City of East St. Louis v. Wehrung, 50 Ill. 28; Birdsall v. Clark, 73 N. Y. 73; Ruggles v. Collur, 43 Mo. 359; Dillon on Municipal Corporations, § 60.
    The contract of a surety must be strictly construed and can not be extended by implication: Stull v. Hance, 62 Ill. 52; Cooper v. People, 85 Ill. 417; Reynolds v. Hall, 1 Scam. 35; People v. Moon, 3 Scam. 123; McLain v. People, 85 Ill. 205; Field v. Rawlings, 1 Gilm. 581; Waters v. Simpson, 2 Gilm. 370.
    A surety is under no moral obligation whatever to pay the obligee independent of his covenant: Pickersgill v. Laheus, 15 Wall. 140; Winston v. Fenwick, 4 S. & P. 269; Harrison v. Field, 2 Wash. (Va.) 136; Pecker v. Julius, 2 Browne (Pa.), 31; Van Derveer v. Wright, 6 Barb. (N. Y.) 547.
    The sureties were only liable for moneys which ¡ their principal was authorized and bound by law to receive in his official capacity: People v. Pennock, 60 N. Y. 421; State v. White, 10 Richardson L. 442; Leigh v. Taylor, 7 Barn. & Cress. 491; Saltenberry v. Loucks, 8 La. An. 95; Nolley v. Calloway County Court, 11 Mo. 447; Branch v. Commonwealth, 2 Call (Va.), 510.
    As to the deposit of money" in the general fund of the treasury: Harker v. Conrad, 12 Serg. & Rawle, 301; Stone v. Tolbot, 14 Wis. 442.
    The items of open accounts current do not form distinct debts but are blended together in one account, so that only the general balance is considered due: 1 Am. Ldg. Cases, 5th Ed., 358, Note 5; Horsey v. Bennett, 28 Minn. 86; Guernsey v. Carver, 8 Wend. 492; Stevens v. Lockwood, 13 Wend. 644
    Mr. George L. Zink, for appellee;
    cited Morgan v. Long, 29 Ia. 434; Moore v. Alleghany City, 18 Pa. St. 55.
   Davis, P. J.

George W. Jones was appointed city cleric of the city of Litchfield on the 7th of April, 1881, and on the ninth of same month he executed to appellee a bond in the sum of two thousand dollars. He was re-appointed city clerk on the 6th of April, 1882, and on the next day executed to appellee a bond of like amount. These bonds were each executed by George W. Jones as principal and by appellants as sureties and were each conditioned that if the said Jones should well and truly perform all and every act and duty enjoined on him by law to the best of his skill and ability and should justly, fairly and promptly account for and pay over and deliver all moneys and other property that might come into his hands by virtue of his said office, then the obligations to be void.

Separate suits were brought against appellants on each of these bonds arid declarations were filed charging in each case that Jones, by virtue of his office of city clerk, had collected and received large sums of money amounting to two thousand dollars, the property and money of appellee, and that he had not promptly accounted for and paid the same over to appellee, but had converted the same to his own use.

It was stipulated of record that the two suits should be and were consolidated.

A plea of non est faotum was filed to the consolidated declaration and it was agreed that under such plea appellants might prove any matter of defense which they might be permitted to prove under any special plea, that could be by them well pleaded, and it was further stipulated that one verdict and judgment should be entered.

The canse was tried by the court on March 31, 1884, and the result of the trial was a verdict for appellee for $1,306.46 damages and a judgment against appellants for that amount, to reverse which the case is brought to this court by appeal.

' Humerous errors are assigned and we will notice those we deem the most important.

Appellee offered in evidence certain ordinances of the city of Litchfield on which it relied for a recovery on the two bonds sued on. These, the parties agreed, were included among others in a book of over two hundred pages, in size five by seven inches, inscribed on back, “ The Charter, with Synopsis of other Statutes, Revised Ordinances and Statutes pertaining to Litchfield, Illinois. Published by authority of the City Council. Revised by B. S. Hood, City Clerk, March, 1877.” To these ordinances were attached a certificate of the city clerk under the seal of the city as authorized by Sec. 14, Chap. 51 of Revised Statutes of 1883, page 537.

It is claimed by appellants that these ordinances had not been published as required by the special charter under which the city is incorporated and were consequently without force or effect. Section 4 of article 13 of the charter of Litchfield provides that “ Every ordinance, regulation and by-law imposing any penalty, fine, imprisonment, or forfeiture for a violation of its provisions, shall, after its passage, be published three times where there is a daily paper published, otherwise once in a weekly paper. Provided the proof of such publication shall not be necessary unless it is denied under oath.’ And section 13 of same article provides that “All ordinances of the city, when printed and published by authority of the city council, shall be received in all courts and places without further proof, which shall not be required until denied under oath.”

In support of their objection that the ordinances of the city had not been published as required by the charter, and to require appellee to prove that the ordinances had been properly published as so required, appellants introduced an affidavit of George W. Jones as follows: “ George W. Jones, defendant, being first duly sworn, on oath says that he is informed and believes and therefore charges the same to be true, that the several ordinances sought to be introduced in evidence by the plaintiff in this cause, and each and every of said ordinances, have never been published as required by the charter of the plaintiff

George W. Jokes.

Some objection was made on the trial, by appellee, to the reading in evidence of such affidavit, on the ground that if Jones knew the fact that the ordinances had not been published, he should have been put upon the stand as any other witness and been subject to cross-examination, and that by affidavit was not the proper way of putting the city on proof of the publication of its ordinances. The court below, in deciding the case, admitted the ordinances in evidence. We think the ordinances were properly admitted. It was sufficiently proved that they had been printed and published by authority of the city council. This justified their admission without further proof. Even if proof of their publication had been necessary, we do not think the affidavit filed was a sufficient “ denial under oath ” to put the city on further proof. Without deciding whether the denial under oath should be oral or by written affidavit, we are clearly of the opinion that the denial should be a direct and positive allegation that the ordinances were not published as required by the charter and not as in the affidavit; that they were not so published according to the information and belief of the affiant. Information and belief can not supply the place of a positive allegation of the non-publication as required by law. Dyer v. Flint, 21 Ill. 80; Archer et al. v. Claflin et al., 31 Ill. 306.

Appellee sought to introduce evidence to prove the receipt of divers license fees by Jones, the clerk, under the two bonds in suit, for pool-tables, ball alleys, billiard tables, shooting galleries, pigeon hole tables, Jenny Lind tables and butchers’ licenses, amounting to $418, and also for money received by him for sidewalks, lamps, freight, drayage and railroad crossings, amounting to $44.80; but the court ruled out such evidence and, as we think, very properly, on the ground that no authority was conferred by the ordinances on the clerk to receive money for such license fees and other items; and appellants, as his sureties, only undertook to be responsible for the money which came into his hands by virtue of his office, in the line of his duty as clerk.

Appellee also sought to introduce evidence to prove the receipt by Jones, the clerk, of divers fees on licenses issued by him to menageries and circuses, swings, sleight of hand performances and butchers’ licenses and shows, amounting to $171.15. To the introduction of this evidence, and each item of the same, appellants objected, on the ground that there was no ordinance or by-law, which authorized or made it the duty of Jones in discharging his duty to collect such sums oí money, and that said sums of money, if collected, were collected without authority of law and not in discharge of his duty as cleric, and that therefore appellants, as his sureties, could not be held responsible therefor. The court overruled the objection and permitted such items to be given in evidence, to which ruling appellants excepted. This objection, we think, was properly 'overruled, except as to the items amounting to $33.65 for butchers’ licenses, which should have been sustained under the former ruling of the court. Section 3 of ordinance 246 provides, " That licenses required for all purposes other than those specified in the first section of this ordinance may be granted by the city clerk and shall be signed by him and have the corporate seal of the city affixed thereto.” We think under this provision the city clerk had authority to issue the licenses in question and collect the license fees fixed by sections 13 and 14 of same ordinance 246 therefor. It is true that section 3 referred to, does not directly designate the officer to whom the fees should be paid, but it does directly confer upon the clerk the power to grant the license, and section 7 of same ordinance requires the clerk to keep a license register in which he shall enter the name of the person licensed, for what purpose licensed, the amount paid, and the date of the license, etc. It also requires the clerk to pay into the city treasury on the first Monday of each month, all moneys received by him on account of all licenses. These provisions, we think, sufficiently designate the clerk as the officer to whom the license fees should be paid and confers on him sufficient authority to receive them.

Appellee then offered evidence showing that Jones, the clerk, had issued licenses and collected the fees therefor amounting to $1,019.70, for water from the city waterworks used by the Litchfield Car Company, by the Litchfield Coal Company and by divers mills and manufacturing establish-meats in Litchfield. Also evidence showing that Jones had received fees as clerk to the amount of $1,260, for water supplied by appellee from water works, but not by meters, to the Wabash, St. Louis & Pacific Railroad Co., and to the Indianapolis &1 St. Louis Railroad Company. Appellee also introduced in evidence contracts between said railroad companies and the city for furnishing such water. Appellants objected to the evidence offered on the ground that by the ordinances of the city no rents or rates were fixed or established except when water was furnished by meter, for railroads, foundries, machine shops, mills, or manufactories, and in cases where such establishments were supplied with water they were to be assessed by the city council, which had not been done, and until such rates or assessments were made the clerk had no right to make such collections; and that the contracts made with the railroad companies were not assessments under the ordinances of the city. The court, however, overruled the objection and received the evidence. We think the objection was properly overruled. Section 16 of ordinance 261 provides, “That in addition to the duties of the city clerk, otherwise prescribed, he shall receive water rents and receipt for the same.” Section 4 of ordinance 272 provides, “That applications for water must be made to the city clerk in writing,” and section 5 provides, “That all water rents are hereby declared to be due and must be paid quarterly in advance at the office of the city clerk.” Section 3 of ordinance 271 provides, “ That all moneys derived from water rents, from the sale of ice, or in any other manner derived from the water works or property belonging to the water works department, together with the tax levied and collected for water works purposes, shall constitute the water fund.” Section 3 of ordinance 272 provides a tariff of water rates to be paid per annum by all persons using water from the Litchfield water works, and the tariff embraces the rate fixed for almost every conceivable use to .which water can be put, except in case of foundries, machine shops, mills, manufactories and railroads, in which excepted cases the rate is to be assessed. Water used for other purposes than above mentioned, the rate was fixed, for 1,000 gallons or less per 100 gall on s; four cents; for 1,000 to 5,000 gallons per 100 gallons, three cents; and for over 5,000 gallons per 100 gallons, two cents.

Under the provisions of the ordinances referred to it was a duty imposed on Jones, the clerk, to receive all water rents due to the city and receipt for the same, and it was also a duty enjoined on him to pay into the city treasury on the first Monday of each month all moneys received by him on account of all licenses. Under the conditions of the bonds entered into by appellants, they bound themselves as the sureties of Jones, that he should well and truly perform all and every act and duty enjoined on him by law, to the best of his skill and ability, and should justly, fairly and promptly account for and pay over and deliver all moneys and other property that might come into his hands by virtue of his office as city clerk.

It seems to us clear that the money received by Jones for water rents as shown by the evidence admitted by the conrt was received by him by virtue of his office as city clerk, That as such city clerk he had full power and authority to receive the same, and by his failure to pay it over to the city treasury, appellants are liable for his default. We do not regard the question as one going to the legality of the assessment of the water rates, but as one touching the authority of the city clerk to receive such rates, nor are we prepared to hold they were not properly assessed. So far as the assessment of railroads, except when water was taken by meter figures, we think the contracts entered into between the city and the railroads were assessments to all intents and purposes. The contract price was the rate or assessment fixed by the city council and was the rate at which the clerk should settle with the railroads. In the case of foundries, machine shops, mills, etc., where no assessments had been made, the proprietors of such establishments could not, for that reason, be deprived of the use of water, and in such eases it was the duty of the clerk under the ordinances, when application was made in writing, to furnish the water applied for, and a rate was fixed by the gallon by the ordinance for water so furnished. The point male, that the contracts made by the city were not made by officers who had authority to execute agreements for the city, can not be noticed further than to say that all the ordinances of the city were introduced in evidence, but only a part of them were copied in the record, and the presumption must be that the court below had evidence to justify it in holding that they were executed by persons having authority by ordinance to so execute them.

Appellee also introduced evidence showing that Jones, the city cleric, received from sundry individuals the sum of $280 for the privilege of taking ice from the reservoir of appellee’s water works, and also the contracts entered into between the city and the different persons from whom such sums were received, which evidence was objected to bv appellants, and the objection overruled by the court, and, as we think, very properly.

We think the principal error committed by the court below was in the amount of' damages assessed against appellants The record shows that the amount of money collected by-Jones, the city clerk, which he had the right as such clerk to collect, and for which appellants, as his sureties, must account to the city, is $4,592.47, as follows:

Received for menagerie, circus and other licenses. $ 137 50

“ water rates, etc................... 1,319 71

“ railroads for water used........... 1,260 00

“ ice privileges .................... 280 00

team and other licenses........... 1,595 26

$4,592 47

The amount Jones paid to treasury is as follows:

To general fund.................... $ 919 90

To water fund..................... 2,696 56

To due Jones settlement 16 April, ’81. 39 65

To paid by Jones in Ballou suit...... 47 00

To due Jones for attorney’s fees in

Chappel suit....... ........ 75 00

-- 3,778 11

$ 814 36

Leaving a deficit of $814.36, which is the amount of damages which should have been assessed by the court against appellants.

For the errors indicated the judgment of the court below must be reversed and the cause remanded.

Judgment reversed.


author: McCulloch, J.

text:
    Joseph N. Baker, Assignee, etc., v. Volney Barber.
    1. Void execution. — An execution issued before a judgment confessed in vacation has been entered up by the clerk, is void, and can not be cured by a subsequent amendment of the record.
    2. Evidence — Parol, to contradict record. — Where declarations, powers of attorney, affidavits and cognovits, are fi'ed with the clerk of the circuit court in vacation for the purpose of having him enter up judgments by confession thereon, and the clerk after filing the same, issued executions thereon as upon judgments confessed, and property was levied upon under said executions that same day, while the judgments were not actually written up until two days later, and the rights of other creditors intervened. Held, competent to show by parol that at the time the executions issued there were no judgments to support them, although it contradicted the record, which apparently showed the judgments as written up the day of filing.
    3*. Jurisdiction — Oe county court not entirely exclusive. — The jurisdiction of the county court in matters of assignments for benefit of creditors is not so exclusive that the circuit court is thereby ousted of its jurisdiction to recall or quash writs issued irregularly or wholly without authority by its own officers respecting the property in the assignee’s hands.
    Error to the Circuit Court of Macon county; the Hon. C. B. Smith, Judge, presiding.
    Messrs. C. C. Clark, Walker & Walker, Crea & Ewing, and Mr. W. C. Johns, for plaintiffs in error;
    that executions issued before judgments are entered are void, cited Ling v. King, 91 Ill. 571; Cummins v. Holmes, 109 Ill. 15.
    As to power of a court over its records: C. & St. L. R. R. Co. v. Holbrook, 72 Ill. 419; Buckmaster v. Carlin, 3 Scam. 107; Dunham v. South Park Com’rs, 87 Ill. 185; O’Conner v. Mullen, 11 Ill. 57; Church v. English, 81 Ill. 442; Sandburg v. Papeneau, 81 Ill. 447; Crafts v. Hall, 3 Scam. 131.
    As to proof of power of attorney: Bisbee v. Woodbury, 8 Bradwell, 338; 1 Greenleaf on Ev., §§ 297-300; Anderson v. Field, 6 Bradwell, 313; Durham v. Brown, 24 Ill. 94.
    As to assignee being proper party to make the motions in this case: Derrick v. Lamar Ins. Co., 47 Ill. 404; Burnham v. Lamar Ins. Co., 79 Ill. 160; Conkling v. Ridgely, Chicago Legal News, Oct. 4, 1884; Jenkins v. Greenbaum, 95 Ill. 11; Knox v. Exchange Bk., 12 Wallace, 381.
    Messrs. Outten & Vail, for defendants in error;
    that if the several assumed creditors are the real plaintiffs they are strangers to the judgments, and the law gives them no remedy by proceeding by motion to quash the execution, cited Bonnell v. Neely, 43 Ill. 289; Adam v. Arnold, 86 Ill. 185; Hitchcock v. Roney, 17 Ill. 231; Kellogg v. Keith, 4 Bradwell, 387; Goodwin v. Mix, 38 Ill. 115; Freeman on Executions, § 75.
    If the assignee is the real plaintiff in error, he can not under the law raise these questions by a proceeding of this kind: R. S., Ch. 10, § 11; Frear v. Com. Nat. Bk., 73 Ill. 473.
    As to when a judgment entered in vacation will be set aside: Farwell v. Meyer, 36 Ill. 510; Ball v. Miller, 38 Ill. 110; Stuhl v. Shipp, 44 Ill. 133; Hinds v. Hopkins, 28 Ill. 351.
    To introduce verbal proof of a different date to the judgment is to contradict by parol a public record: Lawver v. Langhans, 85 Ill. 138; Garfield v. Douglass, 22 Ill. 102; Wiley v. Southerland, 41 Ill. 25; Gecum v. Dean, 40 Ill. 92; Barnett v. Wolf, 70 Ill. 76; Harris v. Lester, 80 Ill. 307; Kemper v. Town of Waverly, 81 Ill. 278.
    By common law, as soon as final judgment was signed and before its entry of record, execution might issue, provided there was no writ of error depending or agreement to the contrary: Freeman on Executions, §§ 24, 77; Stevens on Pleading, 111-116; Archibald’s Prac. 2 Am. Ed. 226; 2 Lidd’s Prac. 994; Styles’ Prac. Reg., tit. Judgment, 1 Manning’s Exch. 352; Stevens on Pleading, Ill.
    Consequences of a premature issuing of an execution: Freeman on Executions, § 25; Steward v. Stokes, 13 S. R. 199; Lawber’s Appeal, 8 W. & S. 389; Wilkinson’s Appeal, 65 Penn. 190; Lynch v. Kelly, 41 Cal. 232; Allen v. Portland Stage Co., 8 Greenleaf, 209; Blaine v. Ship Chas. Carter, 4 Cranch, 333; Carson v. Walker, 16 Mo. 85; Bacon v. Cropsey, 7 N. Y. 199; Overall v. Pero, 7 Mich. 316; Gains v. Betts, 2 Doug. (Mich.) 99; Felter v. Mulliner, 2 J. R. 181; Hess v. Beckman, 11 J. R. 457; Blydenburg v. Cotheal, 4 Const. R. 418.
   McCulloch, J.

The four above entitled causes were heard in this court upon one bill of exceptions. On the 16th day of February, A. D. 1884, in vacation, the defendants in error severally filed declarations, powers of attorney, affidavits and cognovits with the clerk of the circuit court for the purpose of having him enter up judgments by confession in their favor and against John Irwin. Immediately upon filing the same, the clerk proceeded to issue executions for the several amounts confessed by the cognovits, and costs. The aforesaid papers were left with the clerk about five o’clock in the afternoon, and as soon thereafter as executions could be made out they were issued as upon judgments confessed, and placed in the hands of the sheriff. The proof shows that the judgments were not written up that day, which was Saturday, but that they were actually written up on Monday, the eighteenth.

On the night of the sixteenth of February, and after the aforesaid executions had been placed in the hands of the sheriff, the said John Irwin executed a deed of assignment of all Ills property to appellant for the benefit of all his creditors. By virtue of this deed of assignment appellant undertook to dispose of the property assigned under the direction of the county court as provided by statute.

The sheriff having made a levy upon personal property of the judgment debtor, the other creditors filed a petition in the county court and obtained an order that the sheriff deliver over to appellant the property levied on, he to retain his writs and levies, and the judgment creditors lose nothing by such surrender. In pursuance of this order the sheriff surrendered the property to appellant. The property so levied on having, by this proceeding, come within the jurisdiction of the county court, the contesting creditors applied for and obtained leave to prosecute a motion in the circuit court, in the name of the assignee, to vacate the said judgments and to set aside the said executions and levies.

In pursuance of the leave so granted, appellant appeared by attorneys in the circuit court and entered his motion in each of said causes to vacate the judgments, to quash the executions and to set aside the said levies, all of which the court refused to do and overruled said motions. To reverse said action of the court these several writs of error are prosecuted.

It is first contended on the part of defendants in error that plaintiff in error, being a stranger to the records, had no standing in court to make such motions. It is provided by Soc. 11, Chap. 10, R. S., that the assignee shall have power and authority to sue for and recover in the name of such assignee or assignees, everything belonging or appertaining to said estate, real or personal, and generally to act and do whatsoever the said debtor or debtors might have done in the premises.” If these writs were void as contended for, then the debtor would, but for the assignment, have had the right to take all necessary steps and proceedings which the law would give him to regain his property or the value of it. By the deed of assignment, the same right was undoubtedly transferred to the assignee, so far as was necessary to protect his title to the property assigned.

It is claimed, however, that by virtue of the several powers of attorney and the cognovits upon which the judgments were confessed, all errors intervening in the entering up of the judgments and in issuing executions thereon were released) and therefore the debtor* himself could have had no advantage from the motions made by the assignee.

It will be observed that the executions are attached because they were issued before the judgment was entered up. The releases contemplated in the powers of attorney relate to errors in entering up the judgments and in issuing executions thereon. They do not estop the debtor from showing that the executions are void, because they were not issued in pursuance of the powers, that is, issued before any judgment had been entered. If void for that reason, the debtor himself could call them in question.

It is further contended that parol proof is admissible to show that the judgments were written up on Monday instead of Saturday as the record shows. On the other hand it is contended that the rule which excludes parol evidence tending to show the judgments were rendered on a day different from that appearing upon the record, applies only to judicial proceedings and not to the ministerial acts of the clerk in entering judgment upon a cognovit.

We do not deem it necessary to decide this point. In this State, an execution issued before the judgment, confessed in vacation, has been entered up by the clerk, is void, and can not be cured by a subsequent amendment of the record. Ling v. King et al., 91 Ill. 571; Cummins v. Holmes, 109 Ill. 15. We do not contradict the record by showing that the execution was issued and in the hands of the sheriff before the judgment was actually written up, although upon the same day. Under the practice in the State of Hew York, when an execution is issued before the judgment roll is lodged with the clerk, it is void, but it may be rendered valid by a subsequent filing of the judgment roll. But even, there, the execution in the hands of the officers is void until the roll is actually lodged with the clerk, so that intervening valid liens are protected. In Marvin v. Herrick, 5 Wend. 109, a judgment roll was filed with the clerk at nine o’clock in the forenoon and execution issued upon the same at eleven o’clock of the same day. An execution against the same defendant had been issued on the same day at nine o’clock and thirty minutes in the forenoon, but in that case the judgment roll was not lodged with the clerk until near three o’clock in the afternoon. Although the filing of the roll at that late hour might, under the practice of that State, have rendered the execution issued at nine o’clock and thirty minutes, a. m., valid as between the parties, yet the judgment could not relate back so as to make the execution purporting to have been issued upon that judgment, take precedence of the writ issued at a later hour. So in this case it is competent to show by parol that at the time these writs issued, there were no judgments to support them, and according to the decision in Cummings v. Holmes, supra, the subsequent entering of the judgments could not render them valid.

The consequence is that these judgment creditors had no liens upon the property levied on, and the same passed to the assignee under the deed of assignment. We are therefore of the opinion the circuit court erred in not quashing the executions and the levies.

But it is contended that the county court had full jurisdiction to adjudicate upon the questions at issue. It is possible, and we think it quite likely, that the county court could for itself have determined whether or not these executions had any validity, and whether or not they created any lien upon the property assigned, or any part of it. But having become possessed of property subject to executions issued from the circuit court, which might have occasioned a conflict of jurisdiction and possibly led to protracted litigation, we deem it eminently proper for the county court to have pursued the course it did. It can not be successfully contended that because the county court may have acquired jurisdiction to determine the status of the property in respect to the liens of the judgments in question, that the circuit court was thereby ousted of its jurisdiction to recall or quash writs issued irregularly or wholly without authority by its own officers.

It is also contended on the part of plaintiff in error that the judgment in the first of the above mentioned cases is void for want of sufficient proof of the power of attorney, and this is urged as another ground for quashing the execution. The proof is not set out in the abstract. We do not, therefore, feel called upon to consider it. But even if the judgment was void for want of a sufficient affidavit, we should not feel warranted in going further than to quash the execution, which, as already seen, must be done for another reason. The judgment, without an execution, created no lien upon the property levied on, and consequently it is not necessary to set it aside to render appellant’s title thereto complete under his deed of assignment. The record shows no controversy as to any lien that might exist upon any real estate by virtue of the judgment. We do not, therefore, deem it necessary to consider the point any further. But for the errors in not quashing the executions and levies the several judgments of the circuit court will be reversed and the causes remanded.

Reversed and remanded.

Upon the motion of appellees, it is ordered that the former order of this court made and entered May 20,1885, reversing and remanding the causes, be so modified as to read that the judgment of the circuit court be reversed and the causes remanded, with directions to the circuit court to allow the motion of the appellant and to quash the said executions accordingly, with costs.


author: Per Curiam.

text:
    Oliver Decker v. Rosina Decker et al.
    The appeal is dismissed, as the court has no jurisdiction, a freehold being involved.
    Appeal from the Circuit Court of Cass county; the Hon. Lyman Lacey, Judge, presiding.
    Opinion filed June 30, 1885.
    Mr. R. W. Mills and Mr. James McCartney, for appellant.
    Messrs. Morrison & Whitlock, for appellees.
   Per Curiam.

There is a freehold involved in this case. We have no jurisdiction of the subject-matter, and must dismiss the appeal on our own motion. Gen. Laws 1879, Sec. 2, page 222; Chap. 110, Sec. 88, Rev. Stat.; Gage v. Busse, 94 Ill. 590; People v. Holtz, 92 Ill. 426; Wright v. People, 92 Ill. 596; Monroe v. Van Meter, 100 Ill. 347.

The record may be withdrawn.

Appeal dismissed.