author: Mr. Justice Chttraus

text:
    Sydney Stein, Appellee, v. Susan Kaun et al., Appellants.
    Gen. No. 14,517.
    1. Statute of Limitatioxs—when equity will not enforce. In controversies between the original parties to a transaction or those having no greater rights—that is, where no superior equity of a third person intervenes—courts of equity are not always controlled by the Statute of Limitations, and in such cases courts of equity ignore the Statute of Limitations, if necessary to do so, in order to prevent the perpetration of an unconscionable act.
    2. Subbogatiox—when doctrine applies. A person who advances money at the instance of those owning the equity of redemption for the purpose of preventing foreclosure of matured trust deeds will he allowed the benefit of the doctrine of subrogation, in order to prevent the loss to him of the money so advanced.
    3. Chaxceby—what governs courts of. Courts of equity exercise their functions primarily in personam and are governed by the principles of equity and justice.
    4. Decrees—defense of unjustness. Courts of equity so abhor injustice that when a decree creditor comes into a court of equity anew, seeking the assistance of that court for the enforcement of the decree, the defense of unjustness thereof will he entertained and, if established, the court will refuse its aid for the enforcement of the unjust decree.
    Foreclosure. Appeal from the Circuit Court of Cook county; the Hon. Julias' W. Mack, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed June 4, 1909.
    Statement toy the Court. This is a foreclosure suit brought by appellee, Sydney Stein, to foreclose the liens of two trust deeds: one to Edwin Gr. Foreman, as trustee, dated December 22, 1891, recorded December 28, 1891, and the other to W. Arthur Waide, as trustee, dated December 16, 1897, recorded December 17, 1897. Each trust deed secures the payment of a note for $2,500. Complainant only claims an advance of $2,500, made when the latter trust deed was executed; but he claims liens in his favor by virtue of both the trust deeds. The bill was filed in the Circuit Court, on June 30, 1906, and, on January 5, 1907, the chancellor rendered a decree sustaining complainant’s lien and ordering the property involved, viz.: 455 and 457 So. Canal street, Chicago, sold to satisfy the indebtedness. Several parties were made defendants below, such as tenants, the trustees in the two. trust deeds and others; but there was no contest, except on behalf of the following jointly interested parties, viz.: Mrs. Susan Kaun and her children, and the children and widow of her deceased son, William Kaun, who died during the pendency of the suit. William’s widow is also the executrix of his last will and testament and, as such, she was a contestant. Susan, Anton and Joseph Kaun, Wilhelmine Pfister and Gussie Kaun, the executrix, prayed for and were allowed an appeal, and they are now prosecuting this appeal. Anton, Joseph and Wilhelmine are three of the children of Susan Kaun. By way of explanation it may here be stated that Mrs. Kaun was married twice, first to Franz Kaun, who died long before the happening of any of the events we are concerned with, and later, in 1889, to Nicholaus Weiss. Sometime subsequent to the transactions between her and her husband Weiss, more particularly involved herein, they were divorced and by the decree she was permitted to resume her former name of Busan Kaun.
    It appears that Susan Kaun, then Susan Weiss, being the owner of the property involved, and Nicholaus Weiss, her husband, to evidence an indebtedness of that amount, executed and delivered, on December 22, 1891, their note for $2,500, payable in three years, to Foreman Brothers, bankers, and also the trust deed above referred to conveying the property to Edwin ti. Foreman, to secure the payment of that note. There is no contest concerning the validity and superiority of the lien of that trust deed over the claims and rights of all parties, except that appellants contend the lien thereof was outlawed by the statute of limitations, when the foreclosure was begun.
    By a warranty deed dated August 10,1895, acknowledged August 19, 1895, and recorded October 1, 1897, executed upon no consideration whatever, Susan and her husband conveyed the property to her brother Anton Wolf. When the indebtedness to the Foreman Brothers became due, in 1894, it was extended for a period of three years, but, when it again became due, in December, 1897, the Foreman Brothers refused to further extend the loan. In order to take care of that matured loan, Mrs. Kaun and her brother applied to one W. Arthur Waide, and Mrs. Kaun employed him to procure a loan and gave him an order upon Foreman Brothers for the abstract of title. Waide went to complainant and arranged with him to loan $2,500 upon the property. That loan is evidenced by a note for $2,500, dated December 16, 1897, and payable in three years, executed by Mrs. Kaun’s brother, Arthur Wolf, who then held the title as stated. To secure the payment of that note Wolf executed and delivered the trust deed to Waide, above referred to, which complainant is foreclosing. After having received the abstract of title brought down to date and having examined the same, complainant notified Waide that he would not accept the title as it was, because there was some imperfection in it—“some family matters of some kind”—and of this fact Waide informed Mrs. Kaun. But, later, when Mr. Waide took up the matter with the complainant, he consented to make the loan upon the understanding that he would take up and hold the Foreman note and trust deed as additional or collateral security for the money he was advancing. The complainant then gave his check to .Foreman Brothers and in return received the note and trust deed held by them. This note, uncancelled, and trust deed, unreleased, complainant has held ever since, as well as the note given him December 16, 1897. Complainant’s interest has been paid to him up to some time in December, 1905, but none since. When- the note of December 16, 1897, became due, in December, 1900, Mrs. Kaun requested him to extend the loan for a period of five years, which he agreed to do, and she executed interest notes payable half-yearly for the five years.
    It further appears that when Susan Kaun married Nicholaus Weiss she, by an ante-nuptial agreement dated August'8,1889, and recorded September 5, 1889, gave bim full charge and control of this property, and the net rents and proceeds therefrom, for and during his natural life, on condition, however, that he would “not allow waste, otherwise the trust vested in him after the death of Susan shall cease.” About August 10, 1895, Susan and her husband disagreed and separated. They had lived elsewhere for some time, but two weeks after the separation she returned to the property now involved, where she has since lived. She testified that after the separation Weiss had not supported her nor has she seen him since; that the only money he gave her was $10, five years before she returned to the property involved; that after she moved back she collected rents from the property; that, previously, when the interest was paid to the Foreman Brothers he always went with her, and that she gave him the money with which he .paid the interest, from the rents.
    On August 10, 1895, she and her husband entered into a written agreement the object of which, as clearly appears from the context thereof, was to nullify their ante-nuptial agreement of 1889. This post-nuptial agreement was recorded February 11, 1896. Thereby Susan Kaun gave to Weiss $300 and all her interest in a certain property known as 522 So. Lincoln street, Chicago, and he, as stated therein, “does hereby.convey, release and quit-claim .every and all interest * * * that he * * *. may have acquired or may hereafter acquire in, through, or by or under a certain instrument in writing, called an ante-nuptial agreement, made and dated the eighth day of August, A. D. 1889.” This agreement further states that in and by the ante-nuptial agreement it had been provided that Nicholaus Weiss was to have full charge and control of the property now involved and then provides: “but, instead, be it known by this agreement, that in the event of the death of Susan Weiss before the death of the said Nicholaus Weiss, the said Nicholaus Weiss instead of having the full power and control of said property * * * is to have no power or control of said property whatever, but this property is to descend to and become the absolute property of my children who are named as follows: * * * immediately upon the day of my death, the said Nicholaus Weiss hereby relinquishing all claims whatsoever.”
    This agreement is dated on the same day, August 10,1895, as the warranty deed Mrs. Kaun and her husband executed and delivered to her brother Anton Wolf, whereby she conveyed the property to him. By a warranty deed dated August 12, 1895, not recorded until October 28, 1899, Anton Wolf reconveyed the property to his sister Susan Kaun.'
    Samuel B. King and Jule F. Brower, for appellants.
    Philip Stein, for appellee.
   Mr. Justice Chttraus

delivered the opinion of the court.

That complainant, a stranger to Mrs. Kaun and her children, advanced $2,500 of his money, which prevented a foreclosure and sale of the property involved when the loan by the Foreman Brothers matured, in December, 1897, is not disputed. Mrs. Kaun, or her agent, induced the complainant to make this advance upon the security of the property. Upon the facts in this case it would be manifestly unjust and unconscionable if appellants were permitted to benefit, by complainant’s outlay of his money, without being compelled to recognize the lien of the Waide and the Foreman trust deeds.

By virtue of the existence of the post-nuptial agreement of August 10, 1895, which was of record when complainant’s trust deed of December 16, 1897, was executed, Mrs. Kaun and her children now seek to cut off complainant from relief; and they assert that he acquired no lien, by that trust deed, when he advanced his $2,500. As to the Foreman trust deed, which he also holds, they conceive he is barred by the statute of limitations. They advance this statute as an obstacle that should prevent a court of equity from decreeing what, according to the dictates of justice and a good conscience, it would here decree were there no such statute.

In point of fact the evidence justifies no conclusion other than that Mrs. Kaun promptly paid the interest upon the indebtedness to Foreman Brothers until the extension thereof expired in December, 1897. There is no dispute but what the interest thereupon was paid until they parted with it to complainant. It would be unreasonable to suppose, upon the evidence herein, that either Wolf or Weiss paid that interest. The bill of foreclosure was filed within ten years of the time Mrs. Kaun paid that interest.

' But, aside from this fact, there are other equitable considerations involved here. As, for instance, Mrs. Kaun was a party to inducing complainant to advance money and his money took up the Foreman note, so that the indebtedness now existing is in truth and equity the same debt as the Foreman note. Upon this indebtedness Mrs. Kaun has paid interest to some time in December, 1905. In controversies between the original parties to transactions or those having no greater rights, that is, where no superior equities of third persons intervene, courts of equity are not always controlled by the statute of limitations.

Primarily and fundamentally courts of equity exercise their function in personam. Massie v. Watts, 6 Cranch, 148, 159; Johnson v. Gibson, 116 Ill. 294; Enos v. Hunter, 4 Gil. 211; Wadhams v. Gay, 73 Ill. 415, 429. The chancellor grants relief inter partes in respect of the matter in controversy, except where the proceeding before him is a statutory one, and in doing so he is governed by the principles of equity and justice and by his conscience. The extent to which courts of equity go in refusing to lend aid or assistance to the promotion or perpetration of injustice is seen in the following cases: Wadhams v. Gay, 73 Ill. 415; Lawrence Mfg. Co. v. Janesville Mills, 138 U. S. 552, 561; Compton v. Jesup, 68 Fed. 263, 315; Nat. Fdry. & Pipe Wrks. v. Oconto City W. S. Co., 113 Fed. 793, 803-4; Lawrence v. Berney, 2 Ch. Cases. 128, 21 Eng. Rpr’nt, 636; White v. Parnther, 1 Knapp, 179, 12 Eng. Rpr’nt, 303; Union Bnk. v. Commissioners, 119 N. Car. 214, 34 L. R. A. 487; Elec. S. Co. v. Trust Co., 50 N. J. Eq. 93. In Wadhams v. Gay a court of equity refused to carry out or enforce a former decree challenged for unjustness, without first investigating into the merits of the challenge, and when the former decree was found to be unjust the court refused to enforce it. The opinion in that case quotes with approval a citation from Daniell’s Chancery Practice, which is in part as follows (p. 431): “If the first decree is unjust—then this court desires to be excused in making! t its own act, and to build upon such foundation, and charging its own conscience with promoting an apparent [obvious] injustice; and this obliges the court to examine the grounds of the first decree, before it makes the same decree again.” True, in that case unjustness was not held to be a ground of attack upon a decree, by the decree defendant, in an original proceeding, for there must be an end to litigation. But it was held that, to the tender conscience of a chancellor, unjustness is so abhorrent that it is a valid defense, even against a decree of a court of equity, when the possessor of the unjust decree opens up litigation by coining into a court of equity anew and thus seeks the aid of that court in the promotion or perpetration of an injustice. With reference to the interposition of the doctrine of res adjudicata, which naturally occurs to the legal mind as an obstacle to the reinvestigation into the justness of the former decree, our Supreme court says (p. 437): “There is no ground in moral right, equity and conscience to call upon a court of equity to interpose and assist in carrying it [such decree] into execution. The only ground is, that it stands as a decree—a technical right—and the true nature of the application is to enforce a technical estoppel. Of such estoppels, Lord Coke said: ‘they are odious.’ The one in question is eminently of the kind alluded to in Jeter v. Hewitt, 22 How. 352: ‘The res adjudicata renders white that which is black, and straight that which is crooked.’ ” And our Supreme Court held it to be proper and competent, in such case, to examine whether the original decree was unjust and if unjust to refuse enforcement thereof. The case was taken to the Supreme Court of the United States and was there affirmed. Gay v. Parpart, 106 U. S. 679. The doctrine of the ease has since been repeatedly reiterated in this state. Teall v. Dunnihoo, 230 Ill. 476, 488; Pestel v. Primm, 109 Ill. 353; Jenkins v. Bank, 111 Ill. 462; Lancaster v. Snow, 184 Ill. 534; Durham v. Field, 30 Ill. App. 121; Shepard v. Speer, 41 Ill. App. 211, 218; Little v. Chicago, 46 Ill. App. 534; Fitzpatrick v. Rutter, 58 Ill. App. 532, and 60 Ill. App. 657. The doctrine of the above cases that courts of equity, even upon the basis of a decree, will not promote obvious injustice is well settled and universally recognized. But more specifically in point, in the case at bar, is the case of Thorndike v. Thorndike, 142 Ill. 453. In that case, which was a suit in equity, our Supreme Court enunciated the established doctrine that, when equity and justice so require, courts of equity will, as between the immediate parties to a transaction, disregard the statute. The court in that case said: “The Statute of Limitations is a parely legal, as contradistinguished from an equitable, defense, and although courts of equity will ordinarily act in obedience and in analogy to the Statute of Limitations, yet they will also, in proper cases, interfere in actions at law to prevent the bar of the statute where it would be inequitable and unjust. And so it has been held, that where the obligation is clear, and its essential character has not been affected by the lapse of time, equity will enforce a claim of long standing as readily as one of recent origin, as between the immediate parties to the transaction.” In Greenman v. Greenman, 107 Ill. 404, 411, our Supreme Court said: “The Statute of Limitations does not strictly apply to cases in equity, but equity generally follows the law, and denominates the period that the statute requires to bar an action laches that renders a demand stale.” That case was followed in De Walsh v. Braman, 160 Ill. 415. In Wilson v. Eq. Trust Co., 98 Ill. App. 81, this question was considered and there it was held that in some cases a court of equity will not permit the bar of the statute of limitations to be interposed against conscience, but will administer a remedy within its jurisdiction and that it will enforce the right, for the prevention of fraud. In the case at bar it would be, substantially, a fraud upon complainant if appellants were permitted to avail themselves of his money and then turn him away without any lien upon the property he was induced to conserve. We doubt if the children of Mrs. Kaun have any standing in court whatever, by virtue of the post-nuptial agreement between Mrs. Kaun and her second husband, Weiss. They certainly have no interest in equity superior to the lien of the Foreman trust deed, which existed previous to that agreement. Furthermore, at best they would be but volunteers upon no consideration and, therefore, in no better equitable position than their mother.

We are satisfied that as part of the transaction whereby complainant advanced $2,500 it was agreed that he might take up and hold the Foreman trust deed and note as additional security; but whether that be so or not is not vitally material. The equitable doctrine of subrogation is here entirely sufficient for complainant’s purposes. That familiar doctrine, when applicable, is invoked and interposed by courts of equity whenever necessary in order that justice be done between litigating parties. In Tyrrell v. Ward, 102 Ill. 29, it was applied to cut off an intervening lien of a judgment creditor of the grantor, where the person loaning money had used a part of the money to take up a prior existing encumbrance, although he had released the encumbrance. The following cases are also of interest as instances of the application of the equitable doctrine of subrogation: Worcester Nat. Bnk. v. Cheeney, 87 Ill. 602; Young v. Morgan, 89 Ill. 200, and Darst v. Gale, 83 Ill. 136. Whether or not Mrs. Kaun agreed he should take up and retain the Foreman indebtedness, complainant, who advanced his money at her request, is not, in equity, a mere stranger or interloper in whose favor the doctrine would not be applied.

Courts of equity have failed in the purpose for which they were originated and will have degenerated and become useless institutions should the time come when they wittingly deny justice and, in the exercise of their peculiar powers, administer injustice. To let Mrs. Kaun and the other appellants retain the property here involved and require complainant to go hence without relief would be a most unconscionable act.

The decree of the chancellor is affirmed and appellee’s motion to tax against appellants the costs of the additional abstract, filed by appellee, is allowed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Chytraus

license: Public Domain

text:
    S. B. Geiger, Appellee, v. Charles Kaestner and Frank Hecht, Appellants.
    Gen. No. 14,532.

      Contracts—phrase “more or less” construed. The phrase “more or less” following a numeral conveys the meaning of an estimate of probable distance or amount. The idea of nearness is suggested but that of fixedness is excluded, and where the question at issue in the controversy is one of distance, it is a question of fact for the jury to determine as to what is a reasonable limit in connection with the subject-matter and surrounding facts and circumstances of the particular case.
    Baker, J., dissenting.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Robert W. Wright, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Rehearing denied June 15, 1909.
    Affirmed.
    Opinion filed June 4, 1909.
    Statement hy the Court. Plaintiff below, 8. B. Geiger, who is appellee here, brought an action of assumpsit, upon a written contract, against Charles Kaestner and Frank Hecht, copartners, as Charles Kaestner & Co., and, upon a jury trial, recovered a judgment against them for $675.93. They are now prosecuting this appeal to reverse that judgment.
    The action was brought upon the following written agreement:
    “Chicago, Ill., Feb. 19, 1901.
    Me. Chaeles Kaestneb,
    241-249 S. Jefferson St., Chicago.
    Deab Sib:
    Replying to your request for well to be bored or sunk at such place as you may designate, the same to consist of the following: A well 7" in diameter down to rock, and 6" in diameter in rock to depth of 150' from the surface, the remaining depth to be 5" in diameter down to 300' more or less from the surface, price $2.25 per lineal foot.
    All steam required for operating my machinery for drilling the well herein specified is to be furnished me free of charge when required. It is also understood that if the said well yields water that is not free from dirt and sand and same cannot be made to yield clear water, I am to forfeit said well, and all work appertaining to same, and to receive no compensation for the said work. I also guarantee that the water from the said well can be used for boiler purposes.
    The above well will be cased with 7" wrought iron pipe to rock, and same properly capped with a 7" steel shoe of proper construction, and imbedded in rock. I am to stop work when at any time the well yields 40 gallons of water per minute, and payment is to be made only for the actual number of feet bored, at the rate specified above.
    Payment: The above well is to be paid for within 6 months after completion, provided it is as agreed to be in this contract.
    Soliciting your valued order which will receive my prompt and best attention, I remain
    Tours very truly,
    S. B. G-eigeb.
    Accepted: Chas. Kaestneb & Co.,
    Mch. 7, 1901.”
    The plaintiff proceeded, under the contract, to bore the well. When a depth of 300 feet and 5 inches had been reached the work was stopped, and there is a controversy whether the defendants stopped it or whether plaintiff stopped voluntarily. According to the plaintiff’s evidence he, plaintiff, being then sent for, went to see defendant Hecht. In reply to a question by Hecht plaintiff stated that the well then produced from five to ten gallons of water per minute. Hecht then said: “I want you to stop. I do not want you to go on a damned foot farther, or I will turn the steam off.” Whereupon plaintiff stopped his work of boring the well and, a day or two thereafter, measured the depth that had been bored. A witness, Jacob Ecker, apparently entirely disinterested, corroborated the plaintiff. This witness testifies: “He wanted to go farther and Mr. Hecht told him he did not want to go any farther; he would not pay him; and if he made an attempt to go any farther he would stop him, or something to that effect.” “He said something about steam—that he would not give him any power.” But, on the other hand, according to Mr. Hecht’s testimony, plaintiff, at that same point of time, came to see him, Hecht, and stated that he, plaintiff, was then obtaining five, six or seven gallons per minute and that “He could not get any [more] without going deeper, and he could not go deeper unless he got extra pay, there was no chance of making that hole produce 40 gallons a minute.” Hecht also testified that there was nothing said about shutting off the steam.
    Mayer, Meyer & Austrian, for appellants.
    Ayers & Ayers, for appellee.
   Mr. Justice Chytraus

delivered the opinion of the court.

No instruction was given. The defendants tendered six instructions which were all, in our opinion, properly refused.

There was a square conflict of fact, in the evidence, whether defendants stopped plaintiff from proceeding with the boring, when he had bored to a depth of three hundred feet and five inches. The jury determined that conflict in favor of plaintiff. The only question remaining is one of law, namely: Under the contract, properly construed, was plaintiff obliged to stop at 300 feet? The construction of contracts is always a question of law for the court. If, according to his contract, plaintiff was obliged to. stop at a depth of 300 feet, the judgment of the trial court is erroneous. The contract provides that plaintiff shall bore a well six inches in diameter down to a depth of 150 feet from the surface and “the remaining depth to be 5" in diameter down to 300' more or less from the surface.”

The question is: What is the legal effect of the language “down to 300' more or less, from the surface?” When the parties entered into this contract they did not know at what particular point of depth water, in the required quantity or quality, would be found. “But in such cases parol evidence is not admitted to show that the parties intended to buy and sell a different quantity or amount from that stated in the written agreement.” Cabot v. Winsor, quoted in Shickle v. Chouteau, 10 Mo. App. 241, 245. To admit, in such case, parol evidence regarding what the parties intended would be to add to or vary a written agreement by parol evidence. The authorities seem to be uniform in holding that when the phrase “more or less” follows a figure the idea conveyed is one of estimate of probable distance or amount. The idea of nearness is conveyed, but the idea of fixedness or definiteness is excluded. And, in each instance, it is a question of fact what is a reasonable limit in connection with the subject-matter and surrounding facts and circumstances of the particular instance, which question of fact is, of course, for the jury. Schickle v. Chouteau, 10 Mo. App. 241; Cabot v. Winsor, 83 Mass. (1 Allen), 546, 550; Holland v. Rea, 48 Mich. 218; Chicago v. Galpin, 183 Ill. 399, 408; Harrison v. Talbot, 32 Ky. (2 Dana) 258; Kelly v. Bowker, 77 Mass. (11 Gray) 428. Hence, the proper question of fact to be passed upon by the jury in the present case—the only question of fact properly controvertible—was, whether plaintiff, assuming he was stopped, had bored so much beyond the 300 feet as to have reached what, in this instance, was the reasonable limit allowed by the expression “more or less,” used by the parties in their contract.

We are not inclined to say that, in this instance, five inches, the extent to which plaintiff had exceeded the specified figure of 300 feet when he was stopped by the defendants from proceeding any deeper, is the full extent of the reasonable excess the words “more or less” allowed him. Five inches, beyond 300 feet, was regarded by the jury as short of the reasonable excess the contract allowed to the plaintiff. Had he° been allowed to proceed a few inches or a few feet farther he may or may not have struck water. But plaintiff’s performance of his contract, and his right to compensation thereunder, depended upon his striking a specified quantity and quality of water and defendants should not have stopped him at a point short of the depth the contract between the parties contemplated, under the law. The law fixes the rights of parties in case of prevention of performance and plaintiff was entitled to recover under the common counts.

We call attention here to what seems to have escaped notice, that is, what was said in Monroe Cattle Company v. Becker, 147 U. S. 47: “It is loose and insufficient pleading to implead a party by initials. The full Christian name is essential.”

The judgment of the court below must be affirmed.

Affirmed.

Mr. Justice Baker dissenting.


text:
    John W. Bickel, Appellee, v. Emil G. Richter et al., Appellants.
    Gen. No. 14,547.

      Vebdicts—when not disturbed. A verdict not manifestly against the weight of the evidence will not be set aside on review in the absence of errors of law.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed June 4, 1909.
    I. T. Greenacre, for appellants.
    Frederick A. Brown and William B. T. Ewen, Jr., for appellee.
   Mr. Justice Chytraus

delivered the opinion of the court.

On July 18, 1907, appellee, plaintiff below, filed his declaration in assumpsit against appellants, defendants below, wherein the ad damnum was laid at $1150. The defendants, at the same time, by Lawrence P. Conover, their attorney, filed their cognovit actionem whereby they admitted and said they could not deny the plaintiff’s action, nor that the plaintiff had sustained damages on account of their non-performance of their undertakings and promises to the amount of $1111.25. Defendants, by the cognovit, also released all errors and agreed that no writ of error or appeal should be prosecuted. Upon this admission by the defendants the court, on the same day, rendered judgment for the amount confessed. Defendant came into court again, on July 25, 1907, and moved to set aside and vacate the judgment entered. On October 25, 1907, leave was given defendants to plead, instanter, to the declaration, but it was ordered that the judgment stand as security. In accordance with this leave given the defendants filed a plea of non-assumpsit and, by agreement, the cause was submitted for trial to the court without a jury. The court then, on December 14, 1907, found the issues for plaintiff and ordered that the judgment of July 18, 1907, stand in full force and virtue.

The original judgment appears to have been entered by authority of a warrant of attorney attached to a note signed by defendants. The - note is for $1000, dated July 10, 1905, is payable to the order of Mrs. I. C. Haas two years after date and bears interest at the rate of six per cent, per annum until paid. Mrs. Haas subsequently became Mrs. Bickel, the wife of plaintiff, and died before the trial. She assigned the note to plaintiff, her husband, by an assignment somewhat out of the ordinary; but the question raised in this respect becomes immaterial in view of the disposition we make of the case upon the merits.

At the trial below the defendants contended that, although it was not endorsed upon the note, $503 had been paid to Mrs. Haas, on August 4, 1905. It is not made clear when the note was assigned to Bickel and therefore the law presumes the assignment to have been made on the day of its date. It seems to be assumed that Mrs. Haas married Mr. Bickel on August 3, 1905. The payment is claimed to have been made on August 4, 1905. No actual notice to Bickel, of the payment, is claimed. Mr. Bichter testified that a day or so before August 4, 1905, that is, about three weeks after she had loaned him the money, Mrs. Bickel asked him if he could not give her $500 upon the note. He then arranged to meet her at the office of a lawyer, John Stirlen, 608 Monadnock Block, on August 4,1905, when he would pay her that amount. At the appointed time and place they met and defendant’s son, Charles B. Bichter, and John Stirlen were also there. Mr. Bichter testified: “I asked her for the note and she said she did not have it. She said she had put. it away. I said, ‘You ought to have the note;’ she said, ‘I have no note.’ She said she would write a receipt; she said she would endorse it on the back of the note as soon as she got it.” Thereupon, Mr. Bichter testified, he gave Mrs. Bickel $503 and she signed and gave bim a receipt, then written by him with his fountain pen, as follows:

“August 4th, 1905.
Beceived of E. G-. Bichter five hundred & Three dollars on account of note drawn July 10, 1905, and due July 10, 1907, for (1000.00)
$503.00 I. C. Bickel.”

Mr. Bichter also testified that the $3.00 in excess of $500 were to be paid back by Mrs. Bickel, and that August 14, 1906, he paid Mrs. Bickel $60 interest. At the time he paid the interest Bichter says he paid Mrs. Bickel sixty dollars, thirty dollars of which was in cash, and, as he says: “I do not know if she was at the hospital sick in bed, or whether she was at her home—that I paid her. I went there to pay her one year’s interest, which amounted to thirty dollars. When I paid her that she said she needed more money, and asked me for the interest on her note. I said, ‘I will give you a check for the balance.’ So she said 'All right,’ and I gave her a check for the balance.” The check then given was introduced in evidence and the face thereof is as follows:

"Chicago, III, 8/14, 1906. No.—
Live Stock Trust & Savings Bank
5425 South Halsted street.
Pay to the order of Mrs. I. E. Bickel $30.00 Thirty dollars, interest in full on note due July 10, 1907.
E. GK Bichter.”

Charles B. Bichter corroborated his father, as did also John Stirlen, as to the payment of the $503. Mr. Stirlen also testified that the receipt was written by Mr. Bichter in his, Stirlen’s office, at the time of the payment of the $503.

The payment of $500, on August 4, 1905, upon a $1000 loan made on July 10, 1905, for a period of two years, is a transaction somewhat out of the ordinary. The payment of $503, by a man whose business is of such extent that he keeps a bank account, without having it endorsed upon the note, because the note is absent, and this where an appointment for the purpose of making the payment has been made, is also out of the ordinary course of business. The payment of thirty dollars in cash, in August, 1906, without any receipt for that sum seems a little peculiar. The payment of $60 for interest, at that point of time, if but $500 was then owing, does not appear quite regular and the less so as no showing is made that Mrs. Bickel’s circumstances were such that she was in need of cash. From what little on that subject the record shows she does not appear to have been in need of money. The slight discrepancies or inconsistencies in connection with the $3 of the $503 and the point of time, between July 10, 1905, and August 4, 1905, for which period interest is not accounted for, should not be entirely overlooked.

But it is clear beyond room for discussion that the paper defendants offered in evidence purporting to be a receipt for $503 is an altered instrument and that, the alteration was made subsequent to the time of the original writing thereof. Indeed the experts for both sides agree upon the one fact that the instrument has been altered. This undisputed and indisputable fact seriously affects the testimony of Richter and his witnesses. Not only does it discredit Richter but it also discredits his position in the case as to having made that payment in August, 1905. There is no attempt at explanation of the changes and alterations in the supposed receipt. The original paper is here with the record and discloses clearly that the year of the date thereof has been changed from 1906 to 1905. It is not at' all likely that Richter made that alteration in writing the receipt, in 1905. A printed blank was used and upon one line appears “five hundred & Three Dollars.” The word “dollars” is in print at the extreme right end of the line. To the left of that word ample space remained for writing five hundred and three. Yet “Three” is about in the middle of that space, a little to the left, and that “Three” was evidently some other word, probably “Thirty,” altered into “Three.” The “five hundred &” is so crowded into the space to the left of the “Three” as to leave little or no doubt but that it was inserted after that word had been written at about the center of the space. It also appears as if the figure “5” in “503” had been altered from a “3” into a five and, if so, the other “3” was added. There are also other indications of alterations. Possibly a receipt for thirty dollars given in August, 1906, was changed into this receipt for $503.

We find no reason, upon this record, for interfering with the conclusions of fact arrived at by the learned trial judge.

The judgment of the court below will be affirmed.

Affirmed.


text:
    Francis M. Sullivan, Administrator, Appellant, v. Henry Guth & Company, Appellee.
    Gen. No. 14,552.

      Evidence—what not part of res gestae. In an action by an administrator to recover damages for the causing of the death of his intestate, the statements of such intestate made in the hospital where he had been taken after his injury are not properly a part of the res gestae, and should be excluded.
    Action on the case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed June 4, 1909.
    George Y. McIntyre, for appellant.
    Lackner, Butz & Miller and Willis G. Shockey, for appellee.
   Mr. Justice Chytraus

delivered the opinion of the court.

Appellant, plaintiff helow, brought an action on the case in the Circuit Court against appellee, defendant below, to recover damages because Henry Guth & Company negligently caused the death of Henry Herguth, plaintiff’s intestate. There was a trial by jury and defendant was found not guilty. Upon that verdict the court entered judgment against the plaintiff. From that judgment plaintiff prosecutes this appeal.

Herguth was in the employ of defendant as a teamster. While so employed, on October 12, 1903, he left the slaughter house of defendant at about six o’clock in the morning driving a team hauling a load of beef. He was driving north on Halsted street, a street with car tracks, and when he came to Thirtieth street, a cross street, he turned east “and was pulling hard out of the track, when suddenly the line which he held in his left hand broke, causing him to lose his balance on the seat and fall forward and down in front of the wheels.” The wheels passed over his body and he died in about two hours. The contention by appellant is that “the injury to the line must have occurred between the hour of 2:30 in the morning, when the foreman said the lines were properly hung up, and the time that Herguth drove away at 6 o’clock.” At 2:30 o’clock, that same morning, Herguth had returned after delivering a load, unhitched his horses, fastened the lines on the harness and left them properly fastened. It was the duty of each driver to look after his own harness and team, and to harness and unharness his own team and clean and care for the harness. The lines and harness in question were three or four months old, at the time the line broke. After the accident there were some fresh marks about the place of the break. As stated in appellant’s brief: “The declaration in the case charges that a weak and defective line was furnished to appellant’s intestate which had not been inspected with due care and on this account it broke.” The evidence tends to show that the line was made of the very best leather. The evidence does not tend to show that, during the interval between 2:30 o’clock and 6 o’clock of the morning in question, the line was handled by any one in the position of vice principal, nor, for that matter, by any one else. Herguth himself hitched up the team before he started. It is quite likely that the line broke after Herguth fell off the wagon and not before. However that may be, we find no evidence of negligence in the record which would justify us in disturbing the verdict of the jury upon the merits of the case.

It is argued that statements of the deceased made in the hospital, where he was taken after he was hurt, should have been received in evidence as part of the res gestae and that the court erred in excluding such statements. We see no error in the ruling of the trial judge in this respect.

We find no error in the instructions complained of.

The judgment of the Circuit Court must be affirmed.

Affirmed.


author: Me. Justice Chytbaus

text:
    Jozef Milostan, by his next friend, Appellee, v. City of Chicago, Appellant.
    Gen. No. 14,567.
    1. Words and phrases—“proximate” defined. In this case, the legal meaning of the word “proximate” is considered and the definitions thereof reviewed.
    2. Negligence—effect of concurring violence. A negligent omission of one will not sustain a recovery against him, where the injury complained of would not have resulted but for the concurring physical violence of another.
    Baker, J., dissenting.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Rehearing denied June 18, 1909.
    Reversed.
    Opinion filed June 4, 1909.
    Statement Tby the Court. Jozef Milostan, appellee, plaintiff below, by Teodor Milostan, Ms father, as next friend, brought an action on the case against the city of Chicago to recover damages for an injury sustained on the afternoon of December 26, 1905. The injury was sustained on the south side of Blackhawk street, close to the corner of Noble street. A trial by jury was had, a verdict for $2,500 returned against defendant, and, on October 19,1907, a motion for a new trial was overruled and a judgment rendered for that amount. The city now prosecutes this appeal to reverse that judgment.
    The declaration alleges that the injury occurred in the margin of, but within the public highway, where there was a deep area or opemng in the sidewalk adjacent to a building standing upon the lot adjoining the street or highway; that it was the duty of the defendant city to exercise ordinary care to keep the Mghway, at the place in question, reasonably safe by maintaimng around and about tMs area or opening sufficient and suitable guards, fences or other suitable protection, and that defendant maintained no guards or protection there, but, in that regard, negligently failed in the performance of its duty; that the plaintiff, being then about eleven years of age, while passing along, in the exercise of due care, “by reason of said negligent condition, as aforesaid, fell, stumbled and was thrown into said area-way or opening,” and was thereby seriously and permanently injured.
    It appears from the evidence that there is a brick building, fronting on Noble street, at the southwest corner of Noble and Blackhawk streets. That building stands up close to the sidewalk on Blackhawk street. On the latter street, along the side of the building, there is an opening or area-way in the cement sidewalk. This area-way is variously stated to be three to six feet wide, about six feet in depth and of considerable length. About 5 o’clock in the afternoon in question, Jozef Milostan, with two friends, Bernard Piotrowski and John Magorski, came, walking east, along the sidewalk at the side of this building. Bernard walked to the left of plaintiff and John a little behind the two. When they were within a few feet of Noble street Bernard suddenly stepped behind Jozef, grabbed him by the two arms and pushed or shoved him off the sidewalk into the area-way. Bernard testified that he did it intentionally, to scare Jozef—“fool” him or have some fun with him, but that he did not intend to hurt him. Jozef suffered a compound fracture of the bone extending from the shoulder to the elbow-joint in the left arm, and there was both a transverse and a longitudinal fracture. It is probably a permanent injury. There is no question, upon the evidence, but that the act of Bernard was a wilful, intentional act. The act was neither an act of negligence nor an accident.
    Edward J. Brtjndage and John B. Caverly, for appellant; Hervey B. Hicks, of counsel.
    Boyal W. Irwin and Frank W. Koraleski, for appellee.
   Me. Justice Chytbaus

delivered the opinion of the court.

Plaintiff can recover only if he succeeds in establishing one of two propositions, namely: The negligence of the city, in leaving unguarded the area-way, was the proximate cause of the plaintiff’s injury; or, the combined and concurring negligence of Bernard Piotrowski and the city was the proximate cause of the plaintiff’s injury. If the act of Piotrowski was the proximate cause, then the plaintiff cannot recover. No matter how negligent the city was, if its negligence was not the proximate cause, or one of the elements in the proximate cause, the city is not liable. There is, in this case, no material fact in dispute. “It is a general principle of jurisprudence, under both the civil and common law, that, to entitle a party to recover for damages alleged to have been sustained in consequence of .the negligence of another, there must not only be negligence in fact, but it must have been the proximate cause of the injury.” C. & A. R. R. Co. v. Becker, 76 Ill. 25, 30.

At the start, it is well to have a clear understanding of the meaning of the term proximate cause. The Century Dictionary defines “proximate” to mean “next,” “immediate,” “without the intervention of the third” and “proximate cause” as “that cause which immediately precedes and directly produces an effect, as distinguished from a remote, mediate or predisposing cause.” In Wabash R. R. Co. v. Coker, 81 Ill. App. 660, which was affirmed in the Supreme Court, after holding that “The breach of duty upon which an action is brought must not only be the cause, but the proximate cause, of the damages to the plaintiff,” the court defined proximate cause by saying: 1 ‘ The proximate cause of an event must be understood to be that which, in a natural and continuous sequence, unbroken by any new, independent cause, produced an event, and without which that event would not have occurred.” In Strojny v. Griffin Wheel Co., 116 Ill. App. 550, 552, this court adopted that definition and added: “An intervening sufficient cause is a new and independent force which breaks the causal connection between the original wrong and the injury, and it becomes the direct and immediate—that is, the proximate-cause of the injury. The test is, was it a new and independent force, acting in and of itself in causing the injury, and superseding the original wrong so as to make it remote in the chain of causation?” In Goodlander Mill Co. v. Standard Oil Co., 11 C. C. A. 253; 63 Fed. 400, a case in which there was a bitter legal contest between able counsel, we find the definition stated as follows: “The proximate cause of an injury is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. * * * The remote cause is that cause which some independent force merely took advantage of to accomplish something not the probable or natural effect thereof.”

"When we understand what is meant by “proximate cause,” it is clear, without discussion, that the omission of the city, in leaving unguarded the area-way, was not alone the proximate cause of the plaintiff’s injury, if it was a cause at all. Thus the plaintiff fails in the first of the two propositions stated.

It is to be noted, in connection with the second proposition, that the plaintiff’s position is, in his brief, stated as follows: “We contend that the negligence of the defendant contributed to the injury and that without the negligence of the defendant in this regard the accident could not have occurred.” It is true that where an “injury is the result of the negligence of the defendant and that of a third person; or of the defendant and an inevitable accident; or an inanimate thing has contributed with the negligence of the defendant to cause the injury, the plaintiff may recover, if the negligence of the defendant was an efficient cause of the injury.” Pullman Palace Car Co. v. Laack, 143 Ill. 242, 261. If an act of negligence on the part of Piotrowski and an act of negligence on the part of the city combined or co-operated—the two concurring proximately, that is, not necessarily in point of time but in causation, to the effect—so as to injure the plaintiff, then, unquestionably, both would be liable to him, jointly or severally. It would, however, in such case, be necessary in order to create liability upon both that negligence on the part of both should contribute proximately, that is, as an element in the proximate cause, and without intervention of another independent force as the producing cause. In the case at bar it is to be observed that the concurring act of Piotrowski was not merely an act of negligence but it was an intentional, wilful and deliberate act. That is to say, the act was wilful, whether or not the intent to injure was present. On the other hand, on the part of the city there was merely the passive, omissive negligence of permitting, or leaving in an unguarded state, the area-way, without which negligence, it is contended, “the accident could not have occurred.” Passing, for a moment, the question whether anything in the evidence justifies the assertion that but for the unguarded state of the area-way this accident could not have occurred we find, here, that the act of Piotrowski and the omission of the city are not of the same legal nature and not on the same legal level in the law of wrongs to persons. This raises a question entirely different from that which would have arisen, if Piotrowski’s act had been one of negligence merely. Undoubtedly the city was guilty of negligence in permitting the area-way to exist in the sidewalk, and more so in permitting it to remain unguarded. But an act of wilful violence by one person and mere negligence chargeable to another person cannot, together, contribute so as to become the one proximate cause of injury to a third person. For instance, as here, a wilful act of violence of the one and a negligent physical condition chargeable to another are incompatible as joint and contributory elements in one and the same proximate cause of an injury. In the very nature of things, wilful violence, as a producing or efficient cause of injury, will precede negligence, where they, in point of time, concur or co-exist in connection with the injury. Whatever the breach of duty constituting merely negligence, on the part of one, the interposition, bv another, of wilful violence is, necessarily, an intervention of a new and independent force, which breaks the causal connection between the negligence and the injury. The inconsistency and incompatibility between wilful violence and mere negligence is such that they cannot concur or co-exist, in the direct or proximate cause, except in point of time; the idea that they can juridically be co-ordinates in the causation of an injury is inconceivable. Concurrence in point of time is not, necessarily, concurrence in point of cause. While the two—negligence and violence—may concur in point of time, the violence necessarily precedes the negligence in being the producing, direct and proximate cause of the injury. At common law there is a distinct remedy for each; in the one instance trespass and in the other an action on the case lies. Conceding, therefore, that the negligence of the city concurred, in point of time, with the act of Piotrowski, which was an act of wilful violence, and the injury to plaintiff was thus effected, then the wilful violence of Piotrowski was the proximate cause and the mere negligence on the part of the city was but a remote cause of the injury to the plaintiff. In nowise can we consider the act of Piotrowski as negligence, merely.

But, considering the case from another point of view, we cannot agree with plaintiff’s counsel that the negligence of the defendant was the proximate cause of the injury. True, at the place in question, there was a state or condition of negligence created by defendant’s failure to exercise reasonable care to keep the sidewalk—highway—reasonably safe for ordinary use. But, in this particular instance, the plaintiff, so far as that particular negligence is concerned, was passing along—by the area-way—in safety and he had undoubtedly, the hour of the day being considered, observed the area-way and was avoiding it. He had passed alongside of the area-way for a considerable distance and was nearly past it when Piotrowski’s act, availing itself of the existing conditions and the occasion afforded by the presence of the area-way, intervened and, as the direct and efficient cause, brought about plaintiff’s injury. Plainly plaintiff would have safely passed the area-way but for the intervention of this procuring and proximate cause of the injury. The remark made by Dr. Bishop in one of his excellent works, while discussing contributory negligence on the part of a plaintiff, is here, in principle, applicable. He says: “If, while one is negligent—perhaps the expression should be, in a state of negligence—another negligently employs an independent force, which, availing itself of the occasion afforded by the former’s negligence, works a harm not its natural and probable consequence, but an independent harm, the first negligence is not contributory to the second.” Bishop Non-Contract Law, sec. 463. According to the facts in this particular instance it is clear that the harm done plaintiff was not a natural consequence of the presence of the area-way and therefore the condition of the area-way was not, in point of causation, the direct or proximate cause of plaintiff’s injury.

Plaintiff’s counsel appear to argue that the presence of the area-way operated as an incentive or inducement to Piotrowski, by his wilful violence, to shove plaintiff into this area-way. For, it is argued “that without the negligence of the defendant in this regard the accident would not have occurred.” Were it true that the presence of the area-way did so operate upon Piotrowski’s mind, the city would not, on that account, be responsible. No one is liable for more than the natural and probable consequences of his negligence and it was neither natural nor probable that the presence of the area-way should so operate. It would be idle to speculate upon what would or would not have happened if the area-way had been guarded or had not been there, with reference to plaintiff being injured; for whatever conclusion one would come to would be but a conjecture. Upon the facts as they are the defendant’s negligence was not the proximate cause of the injury. There was no immediate causal connection between the presence of the area-way and the happening of the injury. An element intervened. Seymour v. Union Stock Yards Co., 224 Ill. 579, 585; Cole v. German Savings & Loan Soc., 59 C. C. A. 593; 124 Fed. 113; Terminal R. R. Assn. v. Larkins, 112 Ill. App. 366.

Counsel for plaintiff rely upon Siegel, Cooper & Co. v. Trcka, 218 Ill. 559. The doctrine of that ease is (p. 562-3) that, if a defendant is guilty of negligence, which negligence is an element in the proximate cause of the injury, then it makes no difference, as to liability, that some act or agency of some other person or thing also contributes to bring about the result for which damages are claimed. There are two distinctions between that case and the case at bar. According to the expressions in the opinion in that case the court was considering a case where, in point of fact, two contributing acts of negligence constituted the proximate cause. Here, in point of fact, we find in the act of Piotrowsld, alone, the efficient and direct proximate cause. Another distinction is that in that case, as appears from the language of the opinion, the two parties who occasioned the injury were both guilty of mere negligence, while in the case at bar the party we, so far as this case is concerned, consider responsible for the happening and whose act was the proximate cause, was guilty of a wilful act of violence which, as shown, preceded the city’s mere negligence as a proximate cause.

For the reasons indicated the judgment of the Superior Court must be reversed without remanding.

Reversed.

Mr. Justice Bakeb dissenting.


author: Mr. Presiding Justice Thompson

text:
    Catherine E. Joost, Petitioner, Appellee, v. Anna M. Racher, by her next friend, John M. Racher, Defendant, Appellant.
    Gen. No. 5,132.
    1. Conservators—who may file petition for appointment. A proceeding for the appointment of a conservator is in the nature of a proceeding hy the people for the purpose of protecting the estate of the alleged distracted person, but any one interested in the protection of such estate may, in- the discretion of the court, be permitted to appear in the prosecution of such proceeding.
    2. Conservators—presence of respondent at hearing for appointment not necessary. In a proceeding for the appointment of a conservator for an- alleged insane person, it is not necessary to the jurisdiction of the court that such person should he present at the hearing.
    3. Principal and agent—what revokes poioer of attorney. The adjudication of the principal as insane operates to revoke a power of attorney.
    4. Appeals and errors—who may execute bond in appeal from, adjudication of insanity. The person who has been adjudged insane may execute an appeal bond which will operate to suspend the judgment.
    5. Lunatics—acts pertaining to construed. An act entitled “An Act to revise the law in relation to the commitment and detention of lunatics” as amended, and an act entitled “An act to rervise the law in relation to idiots, lunatics, drunkards and spendthrifts” as amended, are each independent of the other.
    Petition for appointment of conservator. Appeal from the Circuit Court of Livingston county; the Hon. G. W. Patton, Judge, presiding.
    Heard in this court at the October term, 1908.
    Appeal dismissed.
    Opinion filed March 24, 1909.
    C. C. Stbawn, for appellant.
    C. J. Ahern and A. C. Norton, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is an appeal from the Circuit Court of Livingston county. From the record in this case it appears that on the 14th day of November, 1907, Catherine E. Joost filed in the County Court of Livingston county a petition signed and sworn to by her, representing that Anna M. Eacher is a resident of said county; that petitioner believes that said Anna M. Eacher is a distracted person and by reason of said distraction is unable to manage her estate; that she is possessed of real and personal estate, the safe keeping of which requires the appointment of a conservator, and praying that a writ be issued for said Eacher and a venire for a jury, etc.

On the same day a summons was issued to the sheriff of said county commanding him to summon Anna M. Eacher to appear before the County Court of said county on the 16th day of November, 1907, then and there to show cause, if any she can, why the court should not appoint a conservator to manage and control her property, according to the petition of Catherine E. Joost. The summons was served on Anna M. Eacher on the 15th day of November. On the 16th day of November the matter was tried in the County Court before a jury. The jury returned a verdict finding Anna M. Eacher distracted and incapable of caring for her estate, that a conservator should be appointed, and that said Anna M. Eacher was not in person actually present during said inquisition but that she had been duly served with summons. Frank L. Smith was thereupon appointed conservator. He gave bond to faithfully discharge the duties of such office and letters of conservatorship were issued to him, November 16, 1907.

On the 5th day of March, 1908, Anna M. Racher by her next friend, John Racher, filed a petition and motion in the County Court to vacate the proceedings appointing Frank L. Smith her conservator, alleging various reasons as cause therefor, amongst others that Anna M. Racher was not in person present during the inquisition, but had only been served with summons. The County Court overruled the motion. John Racher prayed and perfected an appeal to the Circuit Court from the order of the County Court overruling the motion to vacate the orders of the November term in the conservatorship matter. In the Circuit Court, the judgment of the County Court refusing to vacate the orders in the conservatorship matter was confirmed, and Anna M. Racher prayed an appeal to this court. The case comes to this court entitled Catherine E. Joost, petitioner, appellee, v. Anna M. Racher, by her next friend, John M. Racher, defendant, appellant.

A motion has been made in this court by Catherine E. Joost to dismiss the appeal on the grounds, (1) that she is not a proper party and (2) that the bond is under seal and purports to be signed by “Anna M. Racher by John M. Racher her attorney in fact” without any power of attorney being in existence to authorize such execution of the bond. The fact that the trial courts have recognized Catherine E. Joost, who appears as a party in the title of all the pleadings and appears to insist that Anna M. Racher is distracted, is immaterial. This action is in the nature of a proceeding by the people for the sole purpose of protecting the estate of Afina M. Racher, and while Catherine E. Joost filed the original petition under the statute, she is not a necessary party and it is a matter of her own volition whether she appears or not. If she is interested in any way in the protection of the estate of Anna M. Racher, there is no good reason why she should not appear 'amicus curiae if she sees fit, and upon application it is discretionary to permit her upon a proper showing to appear if she desires to at her own costs. Upon the other reason assigned for dismissing the appeal, there is nothing before this court showing that a proper power of attorney is not on file in the office of the circuit clerk as required by Buie 3 of this court. If Anna M. Bacher has been legally adjudged distracted then any power of attorney she may have executed authorizing John M. Bacher to act as her attorney in fact is revoked. Such adjudication operates per se as a revocation or suspension of such authority. 1 Am. & Eng. Ency. of Law, 1226, 2nd Ed. Anna M. Bacher would be competent to execute an appeal bond from the original judgment adjudging her distracted, if the appeal was perfected in due time, for the reason that the appeal suspends the judgment. After the time for perfecting, the appeal had expired, if the court had jurisdiction over her, then no authority she could give would legally authorize any person to act as her agent or attorney in fact. The motion to dismiss the appeal because of the bond being executed without authority, if it be insisted the authority is revoked by her distraction, therefore depends upon whether the distraction of Anna M. Bacher had been properly established by the inquisition it is sought to set aside and such adjudication has not been suspended in some way.

It is insisted by appellant that the County Court, on November 16, 1907, had no jurisdiction over Anna M. Bacher because she was not personally present in court, when she was tried by the jury and found distracted, and that therefore the judgment of the court appointing a conservator is void. This iso the only question presented by appellant, and involves the consideration of chapters 85 and 86 of the statutes of this state as adopted in 1874 and amendments made thereto. In the 1874 revision of the statutes of Illinois, chapter 85 is an act entitled “An act to revise the law in relation to the commitment and detention of lunatics.” This act was approved March 21,1874. The provisions of this chapter have reference solely to the detention and commitment of lunatics, and it contains no provision concerning the appointment of conservators of their estates. Chapter 86 of the Revised Statutes of 1874 is “An act to revise the law in relation to idiots, lunatics, drunkards and spendthrifts,” approved March 26, 1874, and is a chapter devoted solely to the appointment of conservators and the care of the estates of such persons.

Each chapter is independent of the other and contains provisions directing what shall be the practice of courts in proceedings under each respective chapter; each has no reference to or connection with the other. When the commitment and detention of lunatics is involved, under chapter 85, the court has no jurisdiction, unless the person alleged to be distracted appears or is brought before the court in person.

When only the care and management of the estate of the lunatic, idiot, drunkard dr spendthrift is involved, the appearance of the person before the court under the act of 1874 was not necessary, but only the service of summons as in chancery upon the person of the alleged distracted. Under the act of 1874, as originally passed, the alleged distracted must be served with summons ten days, and ten days’ notice of the application had also to be given by publication in some newspaper in the county, before the hearing. In 1887, the act concerning the commitment and detention of lunatics was revised, and the entire act was again revised in 1893. In 1895 sections 1 and 2 of the act of March 26, 1874, being chapter 86 of the act in relation to the appointment of conservators (Session Laws 1895, p. 243) were amended whereby it was provided that, the practice under this chapter should be as near as may be in conformity with the proceedings under chapter 85—the act in relation to the commitment and detention of lunatics approved June 21,1893.

It is upon this amendment that appellant bases the contention that the adjudication of distraction is void for the reason that in all proceedings under chapter ,85 regarding the commitment and detention of lunatics, the person of the distracted must be in court at the trial.

In 1903 sections 1, 2 [and 3 of the act of March 26, 1874, chapter 86, the act in relation to the appointment of conservators, and all amendments thereto, which includes the amendment of 1895, that appellant relies upon, were again revised, whereby the practice was again changed, and the two chapters were again entirely separated from each other. Session Laws of 1903, p. 247. Under the act for the appointment of conservators as amended in 1903, the person of the distracted is not required to be brought before the court, but all that is now required is the service of a summons on the alleged distracted as in chancery. This act revising sections 1 and 2 of the act concerning the appointment of conservators was a repeal of sections 1 and 2 of the act of 1895, as it amends those particular sections. The legislature also in 1903 added a provision to the detention act whereby a conservator might be appointed on the same verdict upon which a commitment or detention was had. This in no way conflicts with the amendments to the act concerning the appointment of conservators where detention is not also sought. The act of 1903, specifically revising sections 1 and 2 of the act of 1895, is complete in itself and was a substitute for and a repeal of sections 1 and 2 of the amendment of 1895 which required the practice concerning the appointment of conservators to be in conformity with the practice under chapter 85 regarding commitment and detention. Culver v. Nat. Bank, 64 Ill. 534; Andrews v. People, 75 Ill. 605; Devine v. Commissioners, 84 Ill. 595; People v. Board of Ed., 166 Ill. 388; People v. Town of Thornton, 186 Ill. 162.

We are clearly of the opinion that under the statute as it now stands where the sole question is the appointment of a conservator, it is not necessary that the person of the distracted person should be present during the inquisition; and that all that is necessary for the court to obtain jurisdiction over the person and property of the alleged distracted is that “the court shall set the cause for hearing, summons shall be issued returnable on any day of the term, and service shall be had upon the person for whom a conservator is sought to be appointed, in the same manner by summons or otherwise as service is had in chancery.” Session Laws, 1903, p. 247, sec. 2. Service of summons alone gave the court jurisdiction to appoint a conservator over the estate of Anna M. Bacher. There was no error in overruling the motion to vacate the judgment appointing the conservator and confirming the judgment of the County Court. No appeal was prayed from the order adjudging Anna M. Bacher distracted within the time required by the statute. Anna M. Bacher being distracted when John M. Bacher signed the name of Anna M. Bacher to the bond for the appeal in this case he had no authority to sign her name and the appeal is therefore dismissed.

Appeal dismissed.


text:
    David S. Holmes, Appellant, v. Christine Nelson, Appellee.
    Gen. No. 5,072.
    1. Conveyances—when limitation not repugnant to granting clause. Notwithstanding a deed contains in the granting clause the words “convey and warrant,” a limitation in the habendum clause restricting the estate to the grantee for life, with power to dispose of the land for purposes of support, is not repugnant to such granting clause.
    2. Conveyances—what not execution of power of disposition by life tenant. A life tenant, who by deed is given the power in her lifetime to dispose of the estate for her support, has no power to make such disposition by will.
    Bill in equity. Appeal from the Circuit Court of Mercer county; the Hon. Emery C. Graves, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 24, 1909.
    Statement by tie Court. This is a suit in equity-begun by David S. Holmes in the Circuit Court of Mercer county to have a lien for money due him for the support of Sarah Bean Anderson, deceased, decreed against forty acres of land. The bill alleges the following to be the facts upon which relief is sought: In December, 1899, John Anderson, then in poor health and advanced in age, made a verbal contract with Miss Sarah Bean in which it was agreed that they should be married, and she should care for him during his life, and he should convey a certain tract of land to her. A deed was prepared, and Anderson accompanied by Miss Bean went to a justice of the peace to execute it. The justice suggested some changes in the deed, which were made; it was then executed and delivered to Miss Bean. The terms of the deed are:
    “The grantor," John Anderson, a widower * * * for the consideration of one dollar, love and affection, and other valuable consideration Dollars, convey and warrant to Miss Sarah Bean, * * * the following described real estate; the northwest quarter of the southwest quarter of section eight, township fifteen, North, Range Four west, be there more or less than forty acres reserving life interest in above described land.
    Miss Sarah Bean to have absolute title during her life with right to dispose of said land for her support, the remainder to go to Christine Nelson or her heirs; situated in the county of Mercer, in the state of Hlinois, hereby releasing and waiving all rights under and by virtue of the Homestead Exemption Laws of this state.”
    The deed was signed by the grantor by his mark in the presence of complainant, and was duly acknowledged. Anderson and Miss Bean were thereafter married. Anderson died in January, 1906, leaving Sarah Bean Anderson, his widow, and Christine Nelson his only child surviving him.
    On March 31, 1906, Sarah Bean Anderson executed a lease of the forty acres of land to Oscar Harter for two years at $100 per year; and the tenant executed two notes for the rent. The first note was transferred by Sarah B. Anderson to David S. Holmes for her support. On April 4, 1906, Sarah Bean Anderson then of the age of sixty-four years made a will, the provisions of which are:
    “First, I order that all my just debts be paid by my Executor hereafter appointed.
    Second, I give and bequeath to my brother Jacob E. Bean, and in the event of his • death before mine, my brother Isaac H. Bean, all the family pictures and other personal property in my possession, which belong to my father and mother, Joseph and Sarah Bean. Also what money I have in the German Savings Bank of. Davenport, Iowa, to be divided share and share alike between Isaac H. and Jacob E. Bean, my brothers.
    Third, I will further that all the proceeds from my real estate known as the northwest quarter of the southwest quarter of section (8) Eight, town (15) Fifteen, North of Bange Four, West of the 4th Principal Meridian and containing (40) Forty acres more or less after the payment of all just claims be given to my daughter Christine Nelson.
    Fourth and Lastly, I hereby appoint David S. Holmes Executor of this my last Will, hereby revoking all other former Will by me made. ’ ’
    Sarah B. Anderson died January 25, 1907. The will was admitted to probate and David S. Holmes was appointed executor. The remaining note for rent did not fall due until February, 1908, and is in the hands of the executor. David S. Holmes presented a claim for the support of Sarah B. Anderson against her estate, which was allowed in the sum of $650 as a third class claim. There were other claims amounting to $65.70 allowed against the estate which it is alleged were incurred for her support. The entire estate consists of $32.36 on deposit in the German Savings Bank at Davenport, her third interest in the estate of her deceased husband John Anderson, from which $42 was received by her executor, her wearing apparel and household goods of little if any value, and the executor inventoried the Harter note of $100 and the land described in the Anderson deed. It is alleged that when Sarah B. Anderson executed the will she had no means of support except the notes, and that she used all the proceeds of the first note prior to July, 1906; that in July, 1906, she tried to sell the forty acres, but did not succeed in making a sale because she was unwilling to sacrifice the property; that in September she had an opportunity to sell at a fair price, but she was then mentally incompetent to make a deed, and for that reason the proposed purchaser declined to buy the land; that in December proceedings were begun to procure the appointment of a conservator, but she died before one could be appointed. The bill prays that complainant be decreed to have 'an equitable lien against the forty acres described in the deed from Anderson to Sarah Bean, for- the amount of his claim, and that said land may be ordered sold unless such lien be paid. It makes Christine Nelson and Oscar Harter defendants. The record in this case is imperfect. Buie one of this court requires that the transcript of record shall contain among other things the process and service. There is no process or service. Christine Nelson alone appeared and demurred. The court sustained the demurrer and dismissed the bill at complainant’s -costs for want of equity." There is neither service of process on, nor appearance by, the defendant Oscar Harter. The Circuit Court did not have jurisdiction over him, and no question as to parties defendant or complainant is raised by either side. The complainant appeals to this court and presents the case on its merits. Christine Nelson is the only defendant appearing here.
    Bassett, Morgan & Hebel, for appellant.
    W. J. Graham, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

The bill neither alleges that there was any error or mistake in the deed, nor asks for any reformation of the deed. Under the deed Sarah Bean Anderson, the grantee, had a life estate in the land therein described, with a power to dispose of the land for her support during her lifetime, with remainder over to Christine Nelson, the appellee. Although the granting clause uses the words “convey and warrant,” the limitation in the habendum clause, restricting the estate to the grantee for life, with power to dispose of the land for her support, is not repugnant to the granting clause. Riggin v. Love, 72 Ill. 553; Welch v. Welch, 183 Ill. 237; Cover v. James, 217 Ill. 309; Griffiths v. Griffiths, 198 Ill. 632.

The contention of appellant is that the execution of “the will was an attempt to execute the power by therein providing that all her just debts should be paid, and then disposing of the remainder thereafter to Christine Nelson.”

Counsel for appellant cite and rely upon Griffin v. Griffin, 141 Ill. 373, as authority for their contention that the will was a defective execution of the power. In the Griffin case the devise was to the wife for life with power to sell for her support. She executed a deed, signing it personally but not as executrix. This was held to be a defective execution of the power. In that case the will also contained the clause, “at her death if there should be any of said real estate left after paying all her just debts then the aforesaid heirs may divide the same.” It was held that that clause made her debts a charge on the estate. “If the primary purpose of the devise is the support of the life tenant, and the remainder of the property which is not consumed by him for that purpose is given over to others upon his death, the life tenant may sell the land and he may use the proceeds of the sale for his support. He may not use the proceeds for another purpose; he cannot give them away; nor can the fee be taken by his creditors.” II Underhill on Wills, sec. 687; Rose v. Hatch, 125 N. Y. 427; Ford v. Ticknor, 169 Mass. 276; Small v. Thompson, 92 Me. 539. The clause in the deed involved in this case is: “Sarah Bean to have absolute title during her life with right to dispose of said land for her support, the remainder to go to Christine Nelson.” The power is limited to the right to dispose of the land. The execution of the will was not a disposal of the land, for the reason it only pretends to dispose of the proceeds of the land. The will set forth in the bill was evidently made in anticipation of the land being disposed of in some way during her lifetime. The testatrix does not devise the land to her executor in any way, or to any other person, or direct or empower the executor to dispose of it. While the words “to dispose of” are not synonymous with “sell,” the definition of the words must be considered with reference to the connecting words. In this case we are of the opinion that the words “to dispose of” with the connecting words mean to sell or place the land beyond her control by some act by which the control of the property would pass from her in her lifetime to the extent at least of the writing executed by her. The will was not a defective execution of the power, but was a total failure to execute the power contained in the deed.

We conclude the power given Sarah Bean Anderson by the prenuptial deed of her husband to be one which could only be exercised during the active enjoyment of the life estate in aid of that enjoyment, and that complainant was not entitled to have a lien decreed against said land; but we do not decide whether the leasing was or was not an exercise of that power for the term of the lease, for the reason that the bill alleges that the note executed by Oscar Harter for $100 rent maturing in February, 1908, is in the hands of David S. Holmes, executor. The executor is not a party to this, suit, and the Circuit Court did not have jurisdiction over Oscar Harter, and it also appears from the allegations of the bill that there are other claims allowed against the estate of Sarah Bean Anderson which were for her support, and such claimants were not parties to or represented in this suit. We conclude that neither anything the Circuit Court decreed or that this court might say would be conclusive of the rights of the parties, and therefore decline to discuss the question whether a leasing and payment of rent was or was not a disposal of the property to that extent.

In so far as the Circuit Court had jurisdiction of the parties and the subject-matter the decree dismissing the bill was proper, and it is therefore affirmed.

Affirmed.


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    People of the State of Illinois, ex rel. George Baumann, Appellee, v. William H. Gest, Jr., City Treasurer, Appellant.
    Gen. No. 5,073.
    1. Mandamus—when answer is insufficient. An answer is insufficient which does not traverse the allegations of the petition as broadly as they are made.
    2. Dbam-shops—when city treasurer will he compelled to accept license fee. A city treasurer may not predicate his refusal to accept a license fee upon the ground that the mayor of the city, when the application for the license is made to him, will refuse to grant it.
    3. Pleading—when demurrer in mandamus will not he carried hack to the petition. Ordinarily, if a demurrer has been interposed to a petition and overruled, a demurrer to an answer will not be carried back, nor will such a demurrer be carried back if the petition is not so defective as to authorize judgment to be stayed by a motion in arrest.
    Mandamus. Appeal from the Circuit Court of Rock Island county; the Hon. W. H. Gest, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 24, 1909.
    Statement by the Court. George Baumann, appellee, filed a petition against William BL Gest, Jr., appellant, city treasurer of the city of Bock Island, seeking to compel Gest as such treasurer to receive the sum of $250 as license money for a license for the sale of intoxicating liquors.
    The petition sets out that the relator resides in the city of Davenport, and that article 6, chapter 17 of the ordinances of the city of Rock Island enacted in 1903 and subsequently amended provides as follows;
    “Sec. 1. The Mayor of said city is hereby authorized to grant a license for the sale of intoxicating, malt, vinous and fermented liquor to any person of full age and good character, who shall make application to him therefor, in writing, stating his place of business and names of his sureties, upon compliance of such applicant with the following requirements; such applicant shall give to the city of Bock Island a bond in the penal sum of $1000 with at least two good and sufficient sureties * * * to be approved by the Mayor, and conditioned that the licensee shall in all things, faithfully observe and keep all ordinances of said city which may be in force during the period of such license, or any portion of such period, regulating or relating to dram-shops * * * and that he will pay to said city all fines * * * the municipal year beginning on the first Monday in May each year is hereby divided into two periods as follows : From the first Monday in May to the first Monday in November, and from the first Monday in November to the first Monday in May. * * * The applicant for such license shall pay for the use of said city for such license as follows * * * for the first period of the municipal year, two hundred and fifty dollars. * * * Such applicant shall also at the same time, execute a bond payable to the people of the state of Illinois, and conditioned as required by the statutes of this state in relation to dram shops. Upon compliance with said requirements, a license shall be issued to such applicant * * * the application for such license shall be accompanied by á petition signed by a majority of the property owners on both sides of the street or avenue on which it is proposed to issue a license for a saloon and within 300 feet of the front door of the premises in each direction. * * * It is further required that every application for a license where it may be necessary that a petition shall accompany the same, shall be filed in the office of the city clerk of Eock Island and published in a newspaper of general circulation printed in this city for at least (10) ten days before the license can be issued. This ordinance is not applicable to and is not to be construed as affecting places designated in licenses already issued, so long as the places so designated shall be used for the purposes specified in said license; but in the event of any place that is now used for saloon purposes being hereafter vacated and abandoned for said use for any reason whatever and having remained so vacated and discontinued for more than (7) seven months, it shall be necessary ber fore the same can again be used for the purpose designated in said license to file with their application for the same the petition above called for. * * *
    “Sec. 6. * * * No license under this ordinance shall be granted to conduct a saloon in any place where there are wine rooms or stalls in connection therewith that have doors, screens or curtains attached thereto * * * any violation of this provision, by attaching such doors, screens or curtains shall be a sufficient cause to revoke the license * * *”
    The petitioner states he is desirous of obtaining a license from the city of Eock Island for the sale of intoxicating liquors at number 117 Eighteenth street in said city; that on the 30th day of June, 1908, he tendered $250 to William H. Gest, Jr., treasurer of the city of Bock .Island, and demanded that as snch treasurer he receive the same for the purposes as aforesaid; that said treasurer refused to accept said sum; that there was issued on the first Monday of November, 1902, by the mayor of the city of Bock Island a license to sell intoxicating liquors in said building, which license ran to and expired on the first Monday of May, 1903, and that on the first Monday of each November and May since the first Monday of May, 1903, there was issued a license as aforesaid to sell intoxicating liquor in said building, each of which licenses ran to the first day of the next six months; that on the first Monday of May, 1908, there was not issued a license as aforesaid; that in said building 117 Eighteenth street there are no wine rooms that have doors, screens or curtains attached thereto; that it is necessary to pay said sum in advance to the city treasurer before petitioner can make application to the mayor for the granting of such license, by means whereof he is prevented from petitioning the mayor in writing for the license that he would be justly entitled to upon said treasurer accepting said sum; that he brings the money into open court; that since such tender he has been ready and willing to pay such sum to such treasurer, wherefore he prays etc. The respondent demurred to the petition, and' the demurrer was overruled.
    The respondent answered denying there was issued on the first Monday of November, 1902, a license to sell intoxicating liquor in the building described in the petition and that on the first Monday of each November and May thereafter any legal license was issued as alleged. The answer denies that there are no rooms or stalls in connection therewith that have doors, screens or curtains attached thereto, but states that stalls, wine rooms, screens and curtains such as are contrary to the ordinances of said city of Bock Island have been in use in said building but now are temporarily displacea and are still in said building ready to be put in place in case petitioner secures the license; that respondent has no right to receive the money offered as alleged, and that the mayor of the city will refuse to issue said license even if the writ is issued against the respondent; that in the judgment of the mayor the building is unfit for use as a saloon and has been a resort of persons of ill repute and that no saloon license should be issued to said petitioner for said place. The relator demurred to the answer. The court sustained the demurrer to the answer and, the respondent abiding by his answer, judgment was rendered that a peremptory writ of mandamus issue, commanding the respondent as treasurer to receive such money, and for costs. From that judgment the respondent appeals to this court.
    J. F. Witter, for appellant.
    McEniry & McEniry, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

The answer of the respondent did not traverse any allegation of the petition. The statement in the answer denying that neither on the first Monday in May, 1903, was any legal license issued nor on the first Monday of each succeeding November and May was any such legal license issued, is not a traverse of the averment of the petition that at each of said times there had been issued a license to sell intoxicating liquors, etc., in said building. The answer limited the denial to a legal license. The traverse was insufficient because it was not as broad as the averment.

The only other averment of the petition attempted to be traversed was that which stated that there were no wine rooms or stalls in connection therewith that have doors, etc. The respondent denies this averment, but immediately, in the same sentence, limits the denial by stating that they are now temporarily displaced and ready to be placed in position in case petitioner secures a license. The effect of the answer is that the wine rooms, etc., are now removed. If they should be replaced the ordinance makes provision for the revocation of the license.

The respondent officially was not concerned with what the mayor might or might not do concerning the license. It was the duty of the city treasurer to receive the money tendered without regard to the mayor’s intentions. If one officer may govern his acts because of what some other officer may say he will do, then it is in the power of officers seriously to embarrass each other. So far as the treasurer is concerned no legal reason is set up in the answer for his refusal to receive the money tendered. If the relator should be unable to secure the license from the officer whose duty it is to issue it, still that was no reason for the failure of the treasurer to receive the money. The demurrer was properly sustained to the answer.

It is now insisted by appellant that the demurrer to the answer should have been carried back to the petition. The appellant had filed a demurrer to the petition which had been overruled. Mandamus is a common law action and governed by the rules of the common law as to pleading. People ex rel. v. Crabbe, 156 Ill. 155. “It is a general rule of pleading that a demurrer, at whatever stage it is interposed, reaches back in its effect through the whole record and attaches ultimately to the first substantial defect in the pleadings on whichsoever side it may have occurred, defects in substance not being aided by the adverse party’s mere pleading over, as formal defects are. Gould on PI. 441; 1 Chitty Pl. 668. A demurrer may be carried back to the declaration, where that pleading is so defective that judgment upon it would be arrested. McFadden v. Fortier, 20 Ill. 509. The rule would seem to be that the defect in a declaration to which the demurrer will be carried back must be one for which the judgment should be arrested and not otherwise.” People ex rel. v. Crabbe, supra. The general rule is that the court will not carry a demurrer back and sustain it to a pleading to which a demurrer has already been overruled. Culver v. Third National Bank, 64 Ill. 528. “But if the declaration is so defective as not to support a judgment, that may be availed of on error, even after a demurrer has been overruled and the defendant has pleaded over. ’ ’ Kipp v. Lichenstein, 79 Ill. 358; Smalley v. Edey, 19 Ill. 207; People ex rel. v. Spring Valley, 129 Ill. 169. The petition was not sufficiently defective in substance to require the judgment to be stayed on a motion in arrest, and there was no error in refusing to carry the demurrer back to the petition. The .judgment is affirmed.

Affirmed.