author: Mr. Justice Etgbeb

text:
    James Fleming, Defendant in Error, v. T. I. Galloway et al., Plaintiffs in Error.
    1. Contracts, § 171

      —construction as entirety. A building contract must be considered as an entirety.
    2. Mechanics’ liens, § 20

      —what is necessary to support lien in favor of contractor. Every element of the contractor’s agreement must be lienable, to support a mechanic’s lien.
    3. Mechanics’ liens, § 196

      —when Shown contract was for material and labor. On a bill to foreclose a mechanic’s lien, evidence held to show that the contract was for material and labor.
    4. Mechanics’ liens, § 20

      —what does not affect right to lien of contractor for work and material. A collateral agreement on the part of the contractor to assist the owner in getting a loan to be used in paying for the contractor’s work and material does not affect the latter’s right to a lien for such work and material.
    5. Mechanics’ liens, § 149

      —when notice to commence suit does not comply with Mechanics' Liens Act so as to bar suit. Notice given by one who, though in possession of the premises, claims no interest therein, but is merely a tenant by sufferance, or by the attorney of one in whose name, without her knowledge or consent, title to the property has been placed, though it is, in fact, owned by another, is not a sufficient compliance with the requirements of Rev. St. ch. 82, sec. 34, par. 48 (J. & A. ¶ 7172), to bar a suit to foreclose a mechanic’s lien.
    6. " Mechanics’ liens, § 83

      —what does not affect contractor’s right to lien. That a contractor filing notice of claim under the Mechanics’ Liens Act (J. & A. ¶ 7139 et seq.), and the one under the contract with whom the lien was claimed were strangers to the record title does not affect the contractor’s right to a lien, where the real parties in interest had actual notice of his claim.
    7. Mechanics’ liens, $ 85

      —what is purpose of statute requiring statement by contractor to owner of claims of persons furnishing material or labor. The purpose of the provision in Rev. St. ch. 82, sec. 5, par. 19 (J. & A. ¶ 7143), requiring a statement to the owner by one claiming a mechanic’s lien, is to protect the owner in payments to contractors against claims of persons furnishing material or labor, and it is not intended to make the giving of the statement a prerequisite to a suit to foreclose a mechanic’s lien in which the rights of all persons interested can be protected.
    8. Appeal and ebbor, § 1570

      —when decree foreclosing mechanics lien is not reversibly erroneous. That the decree foreclosing a mechanic’s lien and a mortgage lien directs that the holder of the paper title pay such liens is not ground for reversal, where the decree directs that in default of such payment the property be sold and the proceeds applied to the liens, and contains no provision for a deficiency decree.
    Error to the Circuit Court of Franklin county; the Hon. Julius C. Kebn, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed November 1, 1918.
    Thompson & Thompson, for plaintiffs in error.
    W. F. Spiller and Moses Pulverman, for defendant in error.

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

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

   Mr. Justice Etgbeb

delivered the opinion of the court.

Defendant in error, James Fleming, filed a bill in chancery in the Circuit Court of Franklin county against T. I. Galloway, Louis Pierce, Yetta Jones, R. C. Jones and Ed Gower to foreclose a mechanic’s lien on a certain lot in Christopher, Franklin county, Illinois. T. I. Galloway, Yetta Jones and Ed Gower answered the bill qnd defendant in error filed replication thereto. Ed Gower also filed a cross-bill to foreclose a mortgage lien held by him, and Fleming filed an answer thereto. Louis Pierce and R. C. Jones, having failed to plead to either the bill or the cross-bill, were defaulted and the allegations in the bill and cross-bill were ordered taken as confessed by them. T. I. Galloway and Yetta Jones failed to plead to the cross-bill and the allegations thereof were ordered taken as confessed by them.

The bill alleges that about September 1,1911, Pierce was in possession of the lot in question; that he entered into an oral contract with Fleming to improve the same with a house, bam, henhouse and well, the improvements to be completed within a reasonable time, to cost $1,050, and to be paid for as soon as Fleming could secure a loan for Pierce on the lot for that amount; that Fleming furnished the material and labor, completed the improvements and offered to procure the loan; that Pierce refused to execute the papers, with the knowledge and consent of Horn, Dimond & Mitchell, who had the title to said lot, Pierce having only a contract for a deed; that Fleming procured the loan for Pierce but the latter declined to execute the papers and refused to pay said sum; that Fleming had a lien on the lot for the amount claimed due; that Galloway, acting as. agent for H. S. Campbell, purchased said lot with knowledge of Fleming’s lien; that Campbell conveyed the lot to Yetta Jones and R. C. Jones, Galloway acting as agent for them; that Galloway with knowledge of Fleming’s lien secured a loan on said lot for Yetta Jones and R. C. Jones from Ed Gower to the amount of $750, to secure which a mortgage was given hy them to Gower; that the interest of Gower accrued after and was subject to Fleming’s lien; that on February 28, 1912, Fleming filed in the office of the clerk of the Circuit Court of said county a statement of his lien. The bill asks to have Fleming’s claim declared a lien and for other relief and makes the necessary parties.

The court found that the equities were with Fleming ; that his claim was a first lien on the premises and the amount due him was $1,206; that there was due Ed Gower from Yetta Jones and B. C. Jones $750, secured by mortgage on the premises which was a second lien on the premises. It was decreed that Yetta Jones pay to Fleming his debt, interest and costs within 30 days; that the mortgage of Ed Gower be foreclosed and that Yetta Jones pay Gower’s debt, interest and costs within 30 days, and in default of payment of the said liens the master in chancery shall sell the premises and discharge the liens' in their order of priority. T. I. Galloway, Yetta Jones and Ed Gower bring the record to this court for review on writ of error, assigning a number of errors. They insist that a building contract must he considered as an entirety and, to support a mechanic’s lien, every element of the contractor’s agreement must be lien-able, citing among other eases Adler v. World’s Pastime Expos. Co., 126 Ill. 373. Their contention is that the contract in this case is not such a contract for the reason that a lump sum of $1,050 was to be paid for furnishing the material, erecting the improvements and placing the loan of said amount, a part of which was lienable and a part not. Conceding the doctrine as to the law to be true as above stated, it is not applicable here for the reason that a fair interpretation of the contract between Pierce and Fleming is that the consideration of $1,050 was to be paid for material and labor. The evidence shows that the original price fixed was $1,000, but that Pierce was not satisfied with the material to be used and that a better grade of material was used and the price later fixed at $1,050 to cover material and labor. At that time no one but Fleming and Pierce were concerned in the contract, and they had a right to make the change, which they did make. The new contract was the one on which Fleming based the statement which he filed for a lien, and which he has since claimed under. The proof further shows that Fleming agreed to assist Pierce in getting a loan to be used in paying for the work and material, but this could not affect the right of the contractor and the lien upon the premises for the work and material furnished by him. The rule laid down by the above authorities is that everything which the contractor undertakes to do in and about the construction of the building or buildings must be lien-able, and it has nothing to do with the provisions for raising money to pay for the improvements or other matters not concerned with the building operations. After the work was completed, Pierce was given a reasonable time to pay for the same and failed to do so. Fleming then filed his statement of lien, clearly showing that the claim was for material and labor which fall within the statute as a basis for the lien.

Plaintiffs in error insist that this suit is barred because it was not brought within 30 days after demand as provided by chapter 82, par. 48, sec. 34, Rev. St. (J. & A. ¶ 7172), namely: “Upon written demand of the owner, liener, or any person interested in the real estate, or their agent or attorney, served on the person claiming the lien, or his agent or attorney, requiring suit to be commenced to enforce the lien or answer to be filed in a pending suit, suit shall be commenced or answer filed within thirty, days thereafter, or the lien shall be forfeited, and the same released if a claim for a lien has been filed with the clerk of the Circuit Court.” To take advantage of that section of the statute it is necessary that the demand be by a person falling within the classes named therein, viz.: “Owner, liener, or any person interested in the real estate, or their agent or attorney.” Pierce’s contract for a deed from Horn, Dimond & Mitchell was dated September 5, 1911. It was canceled December 2, 1911. On April 9, 1912, Pierce caused to be served on Fleming a demand to bring suit to enforce his lien. On May 16, 1912, he had served a demand that the claim for lien be released of record. There is nothing in either demand to show that Pierce came within either of the classes named in the statute, as entitled to make the demand. Pierce testified that when Galloway came and was talking of buying the property he, Pierce, said: “For heaven’s sake, I am ready to give it up if you can make arrangements with the people to pay for it. All I want is my contract, and they took my contract and made it null and void so I wouldn’t be responsible for nothing in this.” He further testified that he did not pay rent because he did not know whom to pay; that he told Galloway and Campbell of Fleming’s claim and that he wanted Fleming paid; that in consideration of those arrangements he stepped out and turned the property over to Galloway and Campbell. The evidence shows that on and after December 2, 1911, the day his contract was canceled, Pierce claimed no interest whatever in the property. At most Pierce had mere possession, was not claiming any interest and was only a tenant at sufferance. On April 9,1912, the day the demand to bring suit was served, and on May 16,1912, the day the demand to release the claim of record was served, he was not a party interested as defined in the statute and did not fall within one of the classes named therein as authorized to make the demand. The notices given by him were therefore not sufficient to bar the suit. On July 23, 1912, Tetta Jones, by T. I. Galloway, her attorney, had served on Fleming a demand to bring suit to enforce Ms lien, and on August 24, 1912, she, in the same way, had served on Fleming a demand that the claim be released of record. Mrs. Jones testified that she knew nothing about tMs property, if she had a deed to it she did not know it, she never gave any one permission to have the title put in her name, paid nothing for it, did not know the description of the property and did not know she was the owner of it. Galloway testified that he owned the property in question at the time of the demands purporting to be given by Mrs. Jones; that there was a judgment against him in the Circuit Court for $700 and he took title to the same from Campbell in the name of Tetta Jones for that reason. From this it would appear Tetta Jones, by whom the demands purport to be made, does not fall within either class mentioned in the statute and authorized to make the demands. Her demand was therefore not sufficient to bar the suit. To hold otherwise would be to assist Galloway in taking advantage of acts whereby he on the one hand concealed his ownersMp of the premises from his judgment creditor and on the other received the benefit of the improvements placed upon the same by Fleming without paying for the same, a state of affairs which cannot be tolerated in a court of equity.

Plaintiffs in error further contend that Fleming and Pierce were strangers to the record title and for that reason filing notice of claim by Fleming under his contract with Pierce was not constructive notice of his claim to the real parties in interest. The testimony shows that Galloway and Gower knew all about Fleming’s claim at the time they became interested in the premises, and the notice was therefore good as to them, and Tetta Jones having disclaimed any interest cannot complain. Plaintiffs in error insist that the contractor having failed to make a statement to the owner, as provided for in chapter 82, par. 19, sec. 5 of the Mechanics’ Liens Law (J. & A. ¶ 7143), Fleming cannot maintain the suit. The object of that section of the statute is evidently to protect the owner in payment to contractors against claims of persons furnishing material or labor. In case the owner should make such payment without requiring such notice, he would not be protected, but this provision of the law is evidently not intended to make -the giving of such statement a prerequisite to a suit of this kind where all parties having rights connected with the premises can be protected. Plaintiffs in error also insist that the contract was not completed. There is some conflict in the testimony on that point, but Fleming testified that it was, and the trial court having decided that it was, we shall not disturb its findings on that point. Plaintiffs in error further complain because Tetta Jones was decreed to pay the liens to enforce which the two bills were filed. She was a necessary party to the suit by reason of her paper title and because she gave the mortgage to Gower, but a reading of the decree shows that the order against her to make these payments was only preliminary to the further order that in default thereof the property in question be sold at public vendue and the proceeds thereof devoted, after the payment of costs, to paying first the claim of Fleming under his mechanic’s lien and next the amount due Gower upon the note secured by mortgage given by her. No provision is made for any deficiency decree in case the sale of the premises shall not produce enough money to pay these claims, and it is certain that under the facts in this case no deficiency decree could properly be rendered against her to pay any amount that might .be lacking on either of said claims, so she can be in no manner injured by the form of the decree.

While other questions are raised hy defendant in error, all of which we have considered, we do not think they affect the substantial merits of the decree in this case, nor that the limits of this opinion should be extended to discuss them in detail. It follows from what we have above said that the decree of the court below in this case should be and it accordingly is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice McBride

license: Public Domain

text:
    Nick Riggio, Appellee, v. Chicago-Sandoval Coal Company, Appellant.
    1. Mines and minerals, § 108

      —when duty of mine examiner to mark place as dangerous. Where dangerous conditions exist in the face of a mine room when it is examined, it is the mine examiner’s duty to mark it as dangerous, even though he thinks there is no danger from such conditions.
    2. Mines and minerals, § 108

      —when mine owner liable for injuries to miner because of failure of mine examiner to mark roof as dangerous. In an action by a mine employee to recover for injuries received by a fall of slate from the roof in a room which had not been marked as dangerous by the examiner, though he knew the conditions, the employer is not relieved from liability by the fact that plaintiff was not only employed as a miner but to remove slate from the roof, and its liability is the same without regard to which capacity plaintiff was working in when injured.
    3. Mines and minerals, § 82

      —when employee may be sent to dangerous place to make it safe. When a dangerous place in a mine has been examined and marked as required by statute, the employer may send an employee there to work and make the dangerous place safe without incurring further liability.
    4. Mines and minerals, § 108

      —who entitled to benefit of statute as to marking dangerous places. The duty of the employer to comply with the statutory requirements to examine his mine, mark the dangerous places and place danger signals is. owed to those employed and generally instructed to make the mine safe as well as to other employees.
    5. Mines and minerals, § 176

      —when shown that dangerous

      condition of roof had not been marked by mine examiner. In an action by a mine employee to recover for injuries received by a fall of slate from the mine roof, evidence held to support a finding that the dangerous condition of the place had not been marked by the examiner.
    6. Mines and minerals, § 182

      —what are questions for jury in action for personal injuries sustained by miner. In an action by a mine employee to recover for injuries received by a fall of slate, questions as to whether a dangerous condition existed at the place and whether plaintiff was injured thereby are for the jury.
    Appeal from the Circuit Court of Marion county; the Hon. William; B. Wright, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed November 1, 1918.
    Noleman & Smith, for appellant.
    Kagy & Vandervort, for appellee; George D. Litthe, of counsel.

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

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

   Mr. Justice McBride

delivered the opinion of the court.

The appellee recovered a judgment against the appellant in the Circuit Court of Marion county, to reverse which this appeal is prosecuted.

It appears from the record in this case that the appellee was engaged at work for the appellant in room No. 4 of the 13th north entry of its coal mine near Sandoval, Illinois, and on the 18th of October, 1916, he was injured by reason of a fall of slate from the roof of the room near the face. This room had what is known as a “rock top, ’ ’ but between the coal and the rock there was about 8 inches of slate which was so rotten that it would not stand unless in some manner secured. The condition of the roof was known to the officers of appellant. The appellee had been engaged at work in this room for some' time and was paid by the ton for removing the coal and by the hour for taking down and removing the slate and removing such slate as fell. On October 17th the appellee had cleared up all of the former shot of coal except about one carload. He then drilled a hole and placed a shot in the face of his room and at the time he was about to quit work for the day fired the shot. The shot was not a perfect one but was what the miners term a “standing shot.” Upon appellee’s return to the room on the morning of the 18th he found this standing shot and as he had about one carload of coal upon the floor from a previous shot he proceeded to load the coal that was upon the floor and, after having done so, he went up near the face of his room and close to the standing coal to examine the roof and determine what to do, and while. standing there looking at the roof the slate fell upon him and injured him. It further appears from the evidence that owing to this standing shot' having released the pressure from the slate that this constituted a dangerous condition in this room, but the mine examiner had not marked it as such and no danger signals had been placed therein by the mine manager. When appellee came to work he was given his entrance check and went down into the room and, as he says, examined it, but found no danger marks of any kind and proceeded at his work in the usual manner.

The declaration consists of one count. This count, after averring the ownership and operation of the mine by the defendant, also alleged that the plaintiff was employed as a miner; that it was the duty of the defendant to inspect places where men were engaged to work and to observe whether there were any recent falls or dangerous obstructions in the room and working place of appellee, and if any places were discovered in which there were recent falls or dangerous obstructions to place a conspicuous mark or sign and to withhold the entrance check of those required to work therein. And then avers that a dangerous and unsafe condition existed in the roof and face of said room, and that the defendant wilfully failed to mark the said place as dangerous and take possession of the entrance check of the plaintiff and withhold the same until the plaintiff was advised of the danger in said room, and that in consequence of such failure the plaintiff was injured by reason of a fall from the alleged dangerous condition. To this declaration the defendant filed the plea of general issue.

It is disclosed by the testimony in this case that on the afternoon before the injury to appellee that he had drilled and fired a shot in the face of his room at the time he left the mine for the day. The shot instead of being a perfect one was as the miners call it a “standing shot,” that is, that the coal at the face was broken loose by the shot but left standing, and the coal would have to be mined or worked out with a pick on top of the coal. The slate between the coal and the rock in this room was very rotten and fell if left without support. The loosening of the coal by a standing shot would have a tendency to release the pressure against the slate and cause it to fall. Mr. Lewis, the superintendent of appellant’s mine, says: “If the shot was a standing shot, as this happened to be, he would have to mine this coal, as we term it— make a cut or work the coal out with a pick on top of the coal, and as the mining advanced it took the support away from the slate, and the slate having no support, was bound to fall. * * * You would not have to mine the soft slate. It fell down. Sometimes it fell and sometimes you pulled it down. It proved dangerous to leave that overhanging in that mine. This slate fell if it was left without support. The shot sometimes would shoot the coal out and leave the slate hanging. It could not be much. It was so thick naturally it would not hang much unless it had support. It was bound to come down. It could not stand up. It would not stay up at all.” Indeed, it is referred to by counsel as a dangerous place. They say that: “The appellee knew, as every one else about the mine knew, that this room was a dangerous room, and that it was always a dangerous place after a shot had been fired, until such time as the strata of slate loosened by the shot had been taken down and the roof thereby made safe.” It was not denied by appellant upon the trial in the Circuit Court, or in this court, that the conditions as they existed at the face of this room made' it a dangerous place, and we think the jury were warranted in fiilding that a dangerous condition existed there at the time the mine examiner examined the room. He does not deny that such conditions existed. If such condition did exist it was the plain duty of the mine examiner to mark it as dangerous even though he thought there was no danger. “If the mine is in a dangerous condition, and the owner or operator has failed, with knowledge of its condition, to comply with the statute, he is liable, and he cannot excuse himself on the ground that he had the mine examined and in good faith thought it was not dangerous. His liability does not rest upon the ground that in good faith or bad faith he thought there was no danger in the mine, but upon the ground that he has, knowing the facts which made the mine dangerous, failed to have the statutory marks properly placed in the mine. When the mine owner or operator is advised of the conditions in the mine, he must place in the mine, if it is dangerous, the statutory marks, and if he fails to do so he acts at his peril, and he cannot excuse himself because he or his Examiner or manager may think the mine safe.” Aetitus v. Spring Valley Coal Co., 246 Ill. 39. It is contended by counsel for appellant that it was not the duty of the mine examiner to mark or the mine manager to place danger signals at this place for the reason that the appellee was at work for appellant in a dual capacity, to wit, that of a miner and was also employed to remove the slate from the roof and coal, and was thereby engaged in making a dangerous place safe, and this is the principal question argued by appellant. It is true that the evidence tends to show that appellee was paid by the hour for removing slate from the roof and such as may have fallen therefrom. We think the jury were warranted in finding that appellee was not engaged in the work of removing the roof at the time of the fall or in making a dangerous place safe. He had loaded up a carload of coal from several feet in front of the face; had just completed this work and then walked near the face of the coal to examine the roof when the slate fell and injured Mm. He says he had not struck a lick or done anything to the roof, slate or the standing coal. If the place had been marked as dangerous this might have been some aid to appellee in avoiding the danger. Whether the appellee was engaged in the work of removing the slate from the roof or in. Ms work as a miner he was entitled to have the benefit of the knowledge and experience of the licensed mine examiner as to the safety of the place. If it had been marked as dangerous he would probably not have gone under the dangerous roof to have examined it. “If it had been marked dangerous he would probably not have given up the effort to get it down and gone under it to work and would not have been hurt.” Piazzi v. Kerens-Donnewald Coal Co., 262 Ill. 35.

We believe, however, that whether the appellee was engaged at his work as a 'miner or was engaged in taking down the slate from the roof under his employment by the hour, it was the duty of appellant to mark the place as dangerous, and its failure so to do in either ease, if such was the cause of the injury, would make the appellant liable for the results. The Supreme Court in discussing the question as to how the operator of a mine may relieve itself from liability says: “The conditions under which a miner may work at a dangerous place at Ms own risk are where the owner has complied with the law by having the mine examined, the dang*erous place has been marked by the mine examiner, and the miner is sent to that place, by the direction of the mine manager, to make safe the particular dangerous conditions there existing.” Piazzi v. Kerens-Donnewald Coal Co., supra. We do not understand that the statute as construed by the courts relieves the operator from marking a dangerous condition that exists in its mine as such, but, when such places are so marked, then the operator may send a servant to that place to work and make the dangerous place safe without incurring liability while such work is being performed. Counsel for appellant lay much stress upon the decision of the Supreme Court in the case of Kellyville Coal Co. v. Bruzas, 223 Ill. 595. We do not understand that this goes to the extent of relieving the operator from the marking of dangerous conditions, as provided by statute; indeed, the court in this opinion says: “If the examiner had failed to use reasonable diligence to discover the dangers in the entry in question or had not placed Ms danger signal there, or if the mine manager or Ms assistant had recklessly ordered the deceased into the place of danger without proper warning, the defendant could have been properly held liable; but here the gravamen of the defendant’s offense is that the mine manager,did not personally accompany the deceased and specifically direct the work.” The question that was determined in the Bruzas case, supra, was that the mine manager did not personally have to accompany the servant in his work at a dangerous place where the place had been marked as such. The court in the case of Piazzi v. Kerens-Donnewald Coal Co., supra, in distinguishing that from the Bruzas case, supra, emphasizes the fact that the declaration in that case counted upon the wilful ordering of the deceased to work at a dangerous place without the mine manager being present to direct the work. Even if it were the duty of the miner to clean up, take down and make the room safe, and that he had been directed in a general way to do so, such instructions did not relieve the owner from the duty of having the mine examined, the mine examiner from the duty of marking dangerous places or the mine manager from the duty of having danger signals placed. Piazzi v. Kerens-Donnewald Coal Co., supra.

It appears to us that it follows from these discussions upon this statute that whether the appellee was employed generally to make dangerous places safe in his room and was engaged at such work, or was pursuing his usual duties as a miner and was injured by reason of a dangerous condition in his room that had not been marked as such, as required by statute, that in either case the appellant would be liable for such injury. It is said by counsel for appellant that there is no evidence of a failure to mark the place. Appellee in his testimony says that he looked for marks or signs of danger but did not see any. The mine examiner or any one else in behalf of appellant does not claim that it was marked, nor is this testimony in any manner disputed by the witnesses of appellant. It seems to us that under such conditions this was sufficient to warrant the jury in finding that the place was not marked.

The questions as to whether or not a dangerous condition existed at this place and as to whether or not the appellee was injured by reason of such dangerous conditions were questions of fact for the jury.

It is also said by counsel for appellant that the jury did not follow the law as given to it by the court in its fourth instruction. We have examined the instruction referred to and believe that the court was very liberal to the defendant in this instruction as to the marking of a dangerous condition, as will be seen from what has been herein above set forth.

We are of the opinion that under the evidence in this case the jury were warranted in finding that a dangerous condition -existed, and that the appellant failed to mark the same as such, and that the injury resulted from such failure. We do not find that the court committed any reversible error in its proceeding in this case, and we are of the opinion that the judgment should be and is affirmed.

Judgment affirmed.


text:
    Katie Kahne, William Atkins and Charles Atkins, Appellants, v. Warren W. Lowe, Administrator, Appellee.
    1. Exbcutobs and administbatobs, § 526

      —when allowance of attorney’s fees to executor proper. An allowance to an executor of $70 attorney’s fees In connection with a sale of realty of the estate held proper, although the sale was not consummated.
    2. Exbcutobs and administbatobs, § 561-rjw7ie«. allowance of extra compensation to executor improper. An allowance of extra compensation to an executor who has been awarded 6 per cent on the personal estate and rents and 3 per cent on money borrowed on the realty, for services in settling a claim against the estate and in collecting rents, in connection with which matters no expenses were incurred by him, held improper.
    3. Exbcutobs and administbatobs, § 520

      —when allowance to executor of amount paid for commission on loan on realty of estate is proper. An allowance to an executor of an amount paid by him as commission to procure a loan effected by him on the realty of the estate to raise funds to meet the claims against the estate held proper, even though no order was entered authorizing the payment of the commission where such was, however, directed and approved by the judge of the Probate Court.
    4. Exbcutobs and administbatobs, § 560

      —when executor not al

      lowed commissions on amount bid on realty. An executor will not be allowed commissions on the amount bid on the realty of the estate when offered for sale by him where the sale was never completed or approved and no money was received thereunder.
    Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the March term, 1918.
    Reversed and remanded with directions.
    Opinion filed November 1, 1918.
    Keefe, Hadley & Baxter, for appellants.
    C. W. Leverbtt and Springer & Buckley, for appellee.

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

   Mr. Justice McBride

delivered the opinion of the court.

It appears from the record in this case that Michael A. Lowe departed this life on or about the 27th of April, 1910, leaving a last will and testament. The will, after providing for the payment of debts, funeral expenses and a few legacies, then directed that after the expiration of 6 years from his decease that his executor should sell all of his real estate and property at public or private sale, as should seem to him most advantageous, and, upon approval of such sale by the Probate Court of Madison county, that deeds of conveyance be made, and that after paying the expenses and costs of such sale, and legacies, he directed that the remainder of the proceeds be divided between his children Edward and James and Alice Tesson, giving to each of them a one-fourth part, and to his granddaughters Mamie and Katie, daughters of his deceased son, William Lowe, each a one-eighth part of the money. He further directed by his will that the executor named therein should manage and control the estate for and during the period of 6 years after his decease. He appointed Warren W. Lowe, the appellee, as executor and trustee and directed that he be allowed liberal compensation for his services as executor and trustee. Upon the decease of Michael A. Lowe the will was admitted to prohate and the appellee qualified as:i such executor. Debts and der mands were allowed against said estate to the amount of $9,932.65. The deceased left no personal property of any consequence and the executor was without means to pay the debts. It appears that at this time real estate of the character owned by the deceased was not of ready sale and would not, in the judgment of the executor and those interested, sell for its full value. The executor and the heirs presented a petition to the Probate Court asking that the appellee be allowed to borrow the sum of $10,000 for a period not to exceed 5 years, with interest not to exceed 6 per cent per annum, and to secure said amount by a mortgage on the real estate owned by the deceased. Upon a hearing the prayer of the petition was granted and the appellee authorized to borrow $10,000 for 5 years with interest at the rate of 6 per cent per annum, and to secure the same by mortgage upon the real estate. The appellee experienced some difficulty in securing a loan. He was assisted by the judge of the Probate Court, but they were unable to secure the loan without a commission, so upon the verbal direction of the judge of the Probate Court a loan was secured from the Alton Banking & Trust Company of Alton, Ulinois, for 5 years with interest at the rate of 6 per cent per annum, and the appellee also agreed to pay a commission of $200 to secure this loan, which was paid under the direction and approval of the judge of the Probate Court, but no record was made of such approval. The money derived from this loan was used in paying the indebtedness of said estate, and the legacies provided for in the will. The principal part of the real estate was leased by appellee to James A. Lowe, one of the heirs and devisees under said will, for an annual rental of $650. The remainder of the estate was leased from time to time by the appellee and. he collected the rents thereon in small amounts. Upon the expiration of the 6 years from the date of* the death of Michael A. Lowe, the executor advertised the real estate for sale at public vendue and proceeded to sell all of said real estate, which was bid in by the said heirs and devisees at $20,500. The executor reported this sale to the court but declined to approve it, and recommended that it be not approved by the court, as he said the property was of much greater value than the amount bid, and after the executor had recommended that the sale be not approved and during the time that the report of sale was pending before the Probate Court for its action, the devisees being of age elected to take and receive all of the real estate owned by the said Michael A. Lowe at the time of his death in lieu of the money that they or either of them might or would receive of the amounts to arise from a sale of said real estate by the executor of said last will and testament of the said Michael A. Lowe, deceased, and filed such declaration as required by law. The report of sale was not disposed of by the Probate Court. After the devisees had elected to receive the real estate in lieu of the legacies, the appellee, as executor, filed a report and the appellants filed objections to several items contained in this report. After a great number of continuances the objections were heard and the items passed upon by the Probate Court, from which order an appeal was taken to the Circuit Court, where a hearing was had upon the several objections, to which exceptions were taken and an appeal prosecuted to this court. Upon this appeal there are only four items to which objections were made that are in controversy or have been argued. The first objection urged is to the allowance by the lower court of attorney’s fees to C. W. Leverett in the sum of $70. It appears from this record that C. W. Leverett was assisting appellee in the making of this sale and made several trips to the county seat for the purpose of attending to the objections that were urged, and, as we read the record, also for the purpose of bringing to a hearing the approval of the sale of the real estate, and appellee says in his testimony that he was representing him in these matters as executor. While it is not very clear that all of these services were rendered strictly in the interest of the estate, yet a portion of them were, to say the least of it, and the judge of the Probate Court knew and understood the purpose of the visits of Leverett and the things that he did in and about taking care of the estate, and a portion of this was at least rendered in looking after the sale of the real estate that was attempted to be made, and the will authorized the payment of the expenses attending the sale, and, while it may be true the sale was not consummated, nevertheless the expenses had been incurred. This amount was allowed by the judge of the Probate Court, also by the Circuit Court, and we are not able to say that it was such error as to require a reversal on the account of this action of the court.

The next error complained of was a charge of $450 allowed to the executor as extra commissions for extra services rendered to said estate. It is said by the appellee that the basis of the allowance of this extra compensation was on account of the settlement of the claim with Mrs. Simmons by which $1,000 was saved to the estate, and also for extra compensation in renting four small tenement houses in which appellee experienced much difficulty in collecting the rents. It is true that a portion of the rents was very difficult to collect, according to the testimony of appellee, but a much larger portion of them was rented in a lump sum of $650 per year, and was in fact collected at the end of the tenancy in the sum of $2,669.75. We are unable to see upon what principle this amount of $450 compensation over and above the 6 per cent that had been allowed to the executor could be awarded to him in this report. The statute provides as follows: “That executors and administrators shall be allowed as compensation for their services a sum not exceeding six per centum on the amount of personal estate, and not exceeding three per centum on the money arising from the sale of real estate, with such additional allowances for costs and charges in collecting and defending the claims of the estate and disposing of the same, as shall be reasonable.” Chapter 3, sec. 133, Rev. St. Ill. (J. & A. ¶ 182) .

The executor had been awarded the full amount of 6 per cent upon all of the personal estate and rents that had come into his hands, and had been awarded 3 per cent on the money borrowed upon the real estate, and we are unable to see how he would be entitled to any further compensation or expenses unless such expense was incurred “for costs and charges in collecting and defending the claims of the estate and disposing of the same, as shall be reasonable.” The Supreme Court, after quoting the above .statute, says: “There is thus no warrant of law for allowing to administrators, as compensation for their services, a sum exceeding six per centum on the amount of the personal estate.” Askew v. Hudgens, 99 Ill. 468. There is nothing in this record that we have been able to find that would justify the court in awarding this extra commissi op or compensation in view of the statute above quoted. We are of the opinion that the court should have sustained the objections to this claim, and that it erred in not doing so.

It is next contended that the court erred in allowing the executor credit for the $200 commission paid to the Alton Banking & Trust Company as set forth in the report. This $200 was paid at the time the appellee was endeavoring to secure a loan to pay the indebtedness of the estate, and it seems to us that it is a just claim, as it was expenses incurred in and about taking care of the claims against the estate and the disposition of them, and it was in the discretion of the court to allow the same. It is said the order of the court only provides for the payment of 6 per cent interest. That is true, and that is all the interest they did pay, but in order to secure the fund he had to pay the commission of $200, and while no order of the court was made authorizing it, it appears that the probate judge did in fact direct and approve it, and the probate judge and the Circuit Court allowed this as a just claim against the estate, and we see no error in so doing. We think the court committed no error in overruling the objections to this item, and this item should have been allowed.

It is next insisted that the court erred in allowing a commission of 2% per cent on the $20,500 bid made by the heirs of the deceased for the real estate offered for sale by the executor, which sale was never approved, and the executor in fact recommended that it be not approved. It is argued by counsel for appellee that he spent much time in the advertising of the said sale and incurred considerable expense therein, and made much effort to induce bidders to buy the lands, and in ‘fact procured a large attendance at the sale by his efforts, and that the real estate was worth much in excess of the amount bid by the heirs but he refused to approve the sale, reported it to the court as required by the will and asked the court not to approve it for several reasons, among them, that it was not bid in for its real value. This sale never was approved and under the will could not be a completed sale until approved by the Probate Court. No money was ever received by the appellee upon this sale, and under the statute the appellee was only entitled to commissions of not exceeding 3 per cent “on the money arising from the sale of real estate.” No money arose from this sale, and we do not see how under this statute and the constructions given to it by the courts he would be entitled to commission until the sale had been completed and the money received by the executor. It is said that this is a great hardship and requires the services of the executor to be rendered without compensation. He had been compensated by receiving $300 upon the loan made and commissions upon the several amounts collected by bim as rents, which amounted to several hundred dollars, and we are not able to say that he has been unjustly treated in this respect, but whatever the facts may be as to the services performed by him in this regard, he did not complete the sale and did not receive any money from the sale of the real estate, and under the statute he would not be entitled to the commissions claimed. We think the court erred in overruling the objections to this claim.

We are of the opinion that the claims for the $70 for attorney’s fees and for $200 commissions paid to the Alton Banking & Trust Company should have been allowed, and that the claims of $450 for extra compensation and commissions and for $625 for commissions upon the sale of real estate attempted to be effected should not have been allowed.

The judgment of the Circuit Court is reversed with directions to allow to appellee the $70 and the $200, and to refuse the items of $450 and $625. As claims allowed by the Circuit Court were affirmed in part and reversed in part, it is ordered that each of the parties pay one-half of the costs in this court.

The judgment of the lower court is reversed and remanded with directions as above stated.

Reversed and remanded with directions.


author: Mr. Justice Holdom

text:
    Connell W. Porter, Appellee, v. First National Bank of Chicago, Appellant.
    Gen. No. 24,074.
    1. Bills and notes, $ 259

      —what are defenses not available as against bona fide purchasers. Duress and failure of consideration are, under the Uniform Negotiable Instruments Act (J. & A. ¶ 7640 et seq.), personal defenses between the parties to a negotiable instrument and cannot he invoked against innocent purchasers for value in due course of business.
    2. Gaming, § 18

      —when payee of draft indorsed under coercion while gambling may not recover amount thereof paid by drawer to innocent holder. Where the payee of draft, under coercion and while gambling, indorses it in blank and the indorser negotiates it to a third person who purchases it innocently, for value and in due course of business, and payment is refused by the drawee, acting under directions from the drawer, who had been instructed by the payee, after he indorsed the draft, to refuse payment, such payee cannot recover from the drawer the amount of the draft, and protest fees paid by it to such innocent holder and charged against the payee’s deposit with the drawer.
    3. Gaming, § 18

      —when statutes relating to have no application. Rev. St. ch. 38, secs. 131, 132, 136 (J. & A. ¶¶ 3734, 3735, 3739), relating to gaming, have no application to an action by the payee of a draft, indorsed by him in blank under coercion and while gambling, to recover against the drawer for paying the draft to an innocent holder in due course and for value.

      Appeal from the Municipal Court of Chicago; the Hon. John F. Haas, Judge, presiding. Heard in this court at the March term, 1918.
    Reversed with judgment of nil capiat and for costs here.
    Opinion filed October 1, 1918.
    E. E. Brown and J. N. Ott, for appellant; John N. Ott, of counsel.
    R Wilson More and Orpheus A. Harding, for appellee; Orpheus A. Harding, of counsel.

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

   Mr. Justice Holdom

delivered the opinion of the court.

This is an appeal by defendant from a judgment against it in favor of plaintiff for $105 entered upon the finding of the court to-whom the cause was submitted for trial without a jury. The facts not in dispute are about as follows:

August 8, 1917, plaintiff bought a draft of defendant for $100 drawn on Wells Fargo Nevada National Bank of San Francisco, California. With this draft in his pocket plaintiff took a train at Chicago bound for San Francisco. On the way out on a Sunday, while the train was speeding through the State of Montana, plaintiff accepted an invitation of three fellow passengers (whom plaintiff thereafter had reason to suspect were card sharpers) to play for modest stakes a game of chance with cards, known to the gambling fraternity as “stud poker.” It is the usual story— plaintiff lost his money. The gambling games were played in a stateroom of a Pullman car. Plaintiff put the draft in question, in the condition in which he had received it from defendant, among the betting money upon the table upon which the interested parties were playing, and lost the draft to his gambling companions. At this stage of the proceeding the gamblers gathered in the spoils of the game then upon the table, including the draft, and realizing, we presume, that unindorsed the draft was valueless, demanded of plaintiff that he write his name on the back, which he did, as he claims, under coercion and threat of physical violence. The indorsement was made in the vicinity of the City of Butte, Montana. At the City of Spokane, Washington, the gamblers alighted and plaintiff wired defendant not to pay the draft, assigning no reason for the request. The gambler who had the draft in his possession registered at the Davenport Hotel, Spokane, in the name of plaintiff, and the hotel people cashed the draft without any further indorsement. In due course of banking the hotel deposited the draft in its local bank for collection, which bank forwarded it to San Francisco for payment by the drawee, who, following instructions received from defendant, acting upon plaintiff’s telegram not to pay, refused to pay the same. Thereupon the draft was in due form protested for nonpayment, charges therefor being $5, and sent to the Com Exchange National Bank of Chicago for collection, which bank presented it to defendant and demanded payment of the amount of the draft with protest fees. Defendant acceded to this demand and charged plaintiff the amount of the protest fees in addition to the face amount of the draft. Plaintiff then instituted this suit to recover the $105 paid by defendant and charged to his account.

From the foregoing statement it is clear that all the parties to whom the draft in suit came after plaintiff parted with it to the gambler were innocent holders for value without any notice of plaintiff’s rights, legal or equitable, if any such he had.

By the statutes of this State gambling is unlawful. Plaintiff gambled away his draft and indorsed it with his own name and delivered it to the gambler who won it from him in a manner prohibited by law. Should plaintiff’s contentions be sustained, then the Davenport Hotel, which cashed the draft, must be the innocent victim and lose its money.

Plaintiff is responsible for all the complications here presented, which were brought about by his infraction of the laws against gambling. It is patent that none of the parties dealing with the draft, save plaintiff and his fellow gamblers, had any knowledge of the circumstances surrounding plaintiff at the time he indorsed and parted with the draft. Plaintiff’s signature being genuine was a sufficient protection to an innocent party subsequently dealing with the draft in due course of business. Had defendant continued to refuse to pay the draft, it would have been amenable to an action at law to recover its amount with protest fees.

The so-called Uniform Negotiable Instruments Act is the statute law of the States of Montana, Washington and Illinois. In these several States some part of the transaction regarding the draft in suit took place. The draft was drawn in Illinois, indorsed and delivered in Montana and cashed in Washington. Consequently it is immaterial as to the law of which State is applied to the transaction, as they are all the same. In these States duress and failure of consideration are personal defenses between the parties and cannot be invoked against innocent purchasers for value in due course of business. Beals v. Neddo, 2 Fed. 41, Section 74, ch. 98, Rev. St. (J. & A. ¶ 7695) provides that:

“To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith.”

This section is likewise the statute law of Tennessee, the Supreme Court of which State has construed it in the case of Unaka Nat. Bank v. Butler, 113 Tenn. 574, on facts similar to those found in the case at bar. In the Butler case, supra, the document involved was a lost check. In construing the statute, in the language quoted, supra, from the Illinois statute, the court held that where a negotiable bank check, indorsed in blank and lost, is purchased by a merchant in due course of trade, within one week after its issuance, from a customer who is unknown to him, but supposed to be the payee, without further indorsement or inquiry as to the identity of the customer, such purchaser acquires a perfect title to the check, and is entitled to payment; in consequence of which the loser of the check loses his title and is not entitled to recover the amount thereof from the bank. The essential elements of this case are present in the case now being considered. The indorsement was genuine, it was in blank, it was received in payment in due course by one who was innocent of any defenses in the hands of the holder, .who was not further identified. The difference in the two cases is that in the Butler ease the check was lost and merchandise was given for it to the holder, while in this case the indorsement of the payee of the draft and its delivery were obtained by duress and the holder was given cash for it.

Plaintiff relies upon sections 131, 132 and 136, ch. 38, of the Criminal Code (J. & A. ¶¶ 3734, 3735, 3739) and certain decisions of our Supreme Court relative thereto. It is sufficient to say that neither the statute nor the decisions is applicable to this case.

The record shows without doubt that the Davenport Hotel at Spokane cashed the draft in suit in due course of its business without actual notice or knowledge of any infirmity in the title of the holder, and that there was no bad faith in the transaction. The Davenport Hotel therefore acquired perfect title to the draft by cashing it, and with it the right to collect it, and the plaintiff lost his title to it and is not entitled to recover the same from defendant.

For the foregoing reasons the judgment of the Municipal Court is reversed and a judgment of nil capiat and for costs entered in this court.

Judgment reversed with judgment of nil capiat cmd for costs here.


text:
    H. H. Hilton, Appellee, v. Lawrence L. Iseman, Appellant.
    Gen. No. 24,217.
    1. Roads and bbidges, § 231

      —what are rights and duties of drivers of vehicles at street intersections. The rights of vehicles at street intersections are correlative, none having the right of way to the exclusion of others, and all being required to use due circumspection to avoid collision with other vehicles.
    2. Automobiles and gabages, § 6

      —when no recovery may be had for damage caused by collision between automobiles. Where a collision of automobiles at a street intersection is due to the negligence of both drivers in failing to keep their cars under proper control, neither can recover for damage caused by the collision.
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the March term, 1918.
    Reversed with judgment of nil capiat and for costs in this court.
    Opinion filed October 1, 1918.
    Vernon W. Foster, for appellant.
    No appearance for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.

The parties to this suit collided, with their respective vehicles, at the intersection of Dorchester avenue and Fifty-Third street, Chicago. Dorchester avenue runs north and south and Fifty-Third street runs east and west. At the time of the accident the electric car of plaintiff was operated by his wife, and a car the motive power of which was gasoline was driven by defendant. The collision occurred in the dusk of the evening; both cars were burning the customary lights. The suit was for damages to plaintiff’s car and the trial was by the court; the finding and judgment were for plaintiff in the sum of $223.05, and defendant appeals, but plaintiff does not appear in this court to maintain his judgment.

It is axiomatic that the rights of vehicles at street intersections are correlative. In other words, none has the right of way to the exclusion of others; all must proceed with due circumspection so as not to come into collision with other vehicles. Rupp v. Keebler, 175 Ill. App. 619.

At the time of the collision plaintiff’s vehicle was being driven north on Dorchester avenue and defendant’s west on Fifty-Third street. There were no obstructions in the path of either to prevent each from clearly seeing the other. Both parties seem to have managed their respective cars upon the theory that each had the right of way over the other. The colliding of the cars was due to negligent management and control by both the drivers. The plaintiff’s wife did not exercise due care in the situation which confronted her, and the defendant was guilty of negligently manipulating his car at the time. The evidence develops that the accident could have been readily avoided by the exercise of due care on the part of either of the drivers. Each proceeded in reckless disregard of the duty which each owed the other.

In these circumstances the law will withhold relief from both parties. The damage suffered by both cars was due to the negligent conduct of each of the drivers. Each should have kept their respective cars under proper control. This neither did. Under the testimony in the record the finding of the court should have been for the defendant.

The judgment of the Municipal Court is therefore reversed with a judgment of nil capiat and for costs in this court.

Judgment reversed with judgment of nil capiat and for costs in this court.


author: Mr. Justice McSurelt

text:
    Ellen H. Bjornberg, Appellant, v. Frank W. Myers, Elizabeth A. Myers, Forrest M. Myers, Chester C. Broomell, Trustee, Francis E. Broomell, Successor in Trust, Edward H. Craft, Mary Craft and Burhans, Ellingwood & Company, Appellees.
    Gen. No. 24,087.
    1. Torrens Act, § 2

      —when registered trust deed takes priority over known, prior unregistered land contract. Under the Torrens Act (J. & A. ¶ 2284 et seq.) a registered trust deed from the registered owner of the premises gives the grantee a lien superior to, that of one who is in possession of the premises under a prior unregistered contract of purchase on which the purchaser has made payments, even though such grantee knew of the contract.
    2. Statutes, § 216

      —what considered in construing statutes adopted from another State. Decisions of the courts of another jurisdiction construing a statute from which a domestic statute has been adopted are persuasive with the domestic courts in construing the domestic statute.
    3. Torrens Act, § 2

      —when transferee of registered owner not affected with notice of unregistered lien or interest. Under section 42 of the Torrens Act (J. & A. ¶ 2325), except in case of fraud, a transferee of the registered owner is not affected with actual or constructive notice of any unregistered lien, claim or interest, and mere knowledge of such claim or interest cannot he considered as fraud.
    4. Tobbens Act, § 2

      —what does not affect priority of registered trust deed over prior unregistered land contract. That the Torrens Act (J. & A. ¶ 2284 et seq.) contains no express provision indicating that possessory rights shall be forfeited by failure to file written notice of such rights with the registrar does not render the lien of a registered trust deed inferior to the lien of one in possession of the premises under a prior unregistered contract of sale.
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sualivan, Judge, presiding. Heard in this court at the March term, 1918.
    Reversed and remanded with directions.
    Opinion filed October 1, 1918.
    George W. Brown, for appellant.

      Morrill, Shannon & Triska, for appellee Edward H. Craft.

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

   Mr. Justice McSurelt

delivered the opinion of the. court.

Complainant filed her bill to foreclose a trust deed given to secure payment of certain notes. The- master to whom reference was had reported that there was due her $1,701.63, for principal, interest and solicitor’s fees, but that she should have a lien on the real estate described in the trust deed for $1,450 only, and should have judgment against Chester C. Broomell, a defendant, for the remainder due. A decree was entered in accordance with this recommendation, from which complainant appeals, saying that she is entitled to a lien on the premises for the entire amount found to be due her, and to a sale of same to satisfy this lien.

The matérial facts are that William H. Myers was the owner of the premises in question and caused the same to be duly registered under the provisions of the “Act concerning land titles,” in force May 1, 1897 (Hurd’s Ill. St. 1915-16, page 608, J. & A. ¶ 2284 et seq.), usually called the Torrens System, and on April 10, 1902, a certificate of registration was issued to him. On April 1, 1910, Myers entered into a written contract with Edward H. Craft, one of the defendants, to convey said premises to Craft for $3,100, which was to be paid, $100 on signing the contract and the balance in monthly instalments, with interest, until the whole should be paid. The contract provided that Myers should furnish a certificate of title under the Torrens System showing a merchantable title in him. This contract was not registered. Shortly after the contract was executed Craft took possession of the dwelling house upon the premises and has used and occupied the same ever since as his home. A short time prior to October 3, 1910, Myers applied to Chester C. Broomell for a loan of $1,400 on the premises. They went together to examine the same, and Mrs. Craft was told of the proposed loan. Subsequently, on October 3,1910, the loan was closed by Myers giving the notes and trust deed in question to Broomell, who paid the money represented by the loan to Myers. Subsequently the trust deed and the notes became the property of Ellen H. Bjornberg, the complainant. Before the loan was closed, Broomell knew of the contract with Craft for the purchase of the property and that he was in possession. The trust deed was filed by Broomell with the Registrar of Titles under the provisions of the Torrens System on October 3, 1910, and a memorial thereof duly entered on the certificate of title.

There are other circumstances and details appearing by the evidence which doubtless moved the chancellor towards the conclusion that the decree entered was proper upon general equitable grounds. However this may be, another consideration impels us to the opinion that the decree must be reversed. We hold that complainant is correct in her contention that under the Land Titles Act the registered trust deed from Myers to Broomell became and still is a lien upon the premises described therein, superior to the unregistered contract of purchase held by Craft and his rights thereunder, and that Broomell in taking from the registered owner and registering the trust deed as security for a loan made in good faith was unaffected by his knowledge of Craft’s interest.

The Land Titles Act referred to has been held constitutional by our Supreme Court in People v. Simon, 176 Ill. 165, the court saying that when the title has been registered,' ascertained and declared, “thereafter the tenure of the owner, the right of transfer and incumbrance, and all rights subsequently accruing, shall be determined in accordance with the rules now prescribed.” In a recent opinion by a branch of this Appellate Court, Hacken v. Isenberg, 210 Ill. App. 120, it was held that as the Torrens Act was a special act concerning registration of land titles, it supersedes any rules of the general law with which it is in conflict, and this conclusion is supported by citations of decisions in New Zealand and the State of Washington, where similar land title acts have been the subject of adjudication. McMullen & Co. v. Croft, 96 Wash. 275; Bishop v. Rowe, 23 New Zeal. L. 66.

In Fels v. Knowles, 26 New Zeal. L. 604, the court characterized the Torrens System thus:

“The cardinal principle of the statute is that the register is everything, and, that, except in cases of actual fraud on the part of the person dealing with the registered proprietor, such person, upon registration of the title under which he takes from the registered proprietor, has an indefeasible title against all the world.”

In Mordaunt’s Assignee v. Gibson, 33 New Zeal. L. 1423, the court said:

“The Land Transfer System can take no notice of agreements. Eegistration is necessary to effect a transfer of an interest. But what the second mortgagee asks the court to do is to record the unregistered memorandum or the agreement as transferring to him a priority and giving to him a right without any registration thereof. Were unregistered documents to be recognized as affecting registered documents the Land Transfer System would be destroyed. * * * The mere execution of registrable instruments was held to transfer no interest. Eegistration was necessary to give effect to them.”

This is supported by Otago Harbor Board v. Spedding, 4 New Zeal. L. 272, and Waitara v. McGovern, 18 New Zeal. L. 372. In accord with this holding is also the opinion in Cooke v. Union Bank, 14 N. S. Wales L. R. Eq. 280.

We believe it is correct to say that in all the reported cases touching this question it has been held that a registered title, lien or interest is prior and superior to an unregistered title, lien or interest. It is an insufficient reply to say that as these decisions concern cases in foreign jurisdictions they are of no weight here. Naturally adjudications touching the construction of land title acts would be found more numerous where such acts were earliest in force, and as our act is concededly adopted from those countries and in substance and many particulars identical with those acts, the construction placed thereon by such courts should be of great persuasive influence.

The provisions of the Illinois Land Titles Act (J. & A. ¶¶ 2325, 2329) pertinent to the present controversy are as follows:

“42. Except in case of fraud, and except as herein otherwise provided, no person taking a transfer of registered land, or any estate or interest therein, or of any charge upon the same from the registered owner shall be held to inquire into the circumstances under which, or the consideration for which such owner or any previous owner was registered, or be affected with notice, actual or constructive, of any unregistered trust, lien, claim, "demand or interest; and the knowledge that an unregistered trust, lien, claim, demand or interest is in existence shall not of itself be imputed as fraud.”
“46. The bringing of land under this act shall imply an agreement which shall run with the land that the same shall be subject to the terms of the act and all amendments and alterations thereof. And all dealings with land or any estate or interest therein after the same has been brought under this act, and all liens, incumbrances and charges upon the same subsequent to the first registration thereof, shall be deemed to be subject to the terms of this act.”

Another section provides that every mortgage, contract to sell, or other instrument intended to create a charge upon registered land or any interest therein may be registered.

The meaning of section 42 is clear. Except in case of fraud a transferee of the registered owner shall not be affected with notice, actual or constructive, of any unregistered lien, claim or interest, and mere knowledge of such unregistered lien, claim or interest shall not be considered as fraud. It is not claimed in the. instant case that there was any fraud in any of the transactions between the parties; the loan from Broomell to Myers was made in good faith. All of the parties, including Craft and Broomell, knew of the respective claims and interests of each other, and such knowledge cannot be imputed as fraud. It would seem, therefore, too clear for argument that if we are to give force and effect to the provisions of the Torrens Act, which we must do, it must be held that the lien of the registered trust deed of Broomell, subsequently conveyed to the complainant, was superior to the rights and interest of Craft under his unregistered contract of purchase.

It is suggested in opposition that the Land Titles Act of Illinois does not by any express provision indicate that possessory rights shall be forfeited by reason of the failure to file written notice of these rights with the Registrar of Titles. This is immaterial: (1) The language of section 43 is broad enough to cover any right, including a possessory right. (2) Craft’s right of possession rested solely upon his unregistered contract.

It might be added by way of comment that in a certain equitable sense there is no injustice in subjecting the premises occupied by Craft to a lien for the entire amount due under the notes and trust deed. He knew that he was contracting with reference to a registered title; his contract so reads; he must be held to have known that this contract could be registered, thus fully protecting his interest; he had both actual and constructive knowledge of the mortgage lien. He concedes that he should pay thereon $1,450 and has offered to do this. There is no injustice in requiring Tnm to pay the full amount due to protect his interest in the land.

For the reasons above indicated the decree is reversed and the cause is remanded with directions to enter a decree in favor of the complainant giving her a lien for the full amount due her upon the premises described in the trust deed, and such other and further relief as she may be entitled to.

Reversed and remanded with directions.


author: Mr. Justice MoSurely

text:
    Oliver Lamoreux, by C. A. Lamoreux, Appellant, v. Illinois Commercial Men’s Association, Appellee.
    Gen. No. 24,142.
    Insurance, § 686

      —when death of insured hy external, violent and accidental means is question for jury. In an action to recover on an accident policy which rendered the insurer liable for death resulting from injuries received through “external, violent and accidental means,” evidence held to be of such character as to require a submission to the jury of the question whether the death of the insured was by external, violent and accidental means.
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Thomson, Judge, presiding. Heard in this court at the March term, 1918.
    Reversed and remanded.
    Opinion filed October 1, 1918.
    Rehearing denied October 14, 1918.
    Dent, Dobyns & Freeman, for appellant; Sanborn, Lamoreux & Pray, of counsel.
    Ryan, Condon & Livingston, for appellee.

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

   Mr. Justice MoSurely

delivered the opinion of the court.

Lee B. Jones, insured under an accident policy in the defendant corporation, died in July, 1913. Defendant asserted that as death was not accidental it was not liable. Plaintiff, the nephew of the insured and the beneficiary of the policy, brought suit to recover $5,000, and upon trial, at the conclusion of plaintiff’s case, the defendant moved for an instructed verdict in its favor upon the ground that there was no legal evidence supporting the claim of accidental death which should be submitted to the jury. This motion was sustained and a verdict was returned for the defendant. From the judgment of nil capiat plaintiff appeals.

By the terms of the policy defendant was obligated for the amount claimed “in case of bodily injury or injuries received through external, violent and accidental means, which shall, independently of all other causes, result in the death” of the insured. Should the trial court have permitted the jury to determine from the evidence adduced whether death resulted from injury received through external, violent and accidental means'? We hold in the affirmative and that defendant’s motion for an instructed verdict should have been denied.

The evidence tended to show that Jones was about 45 years of age, of normal weight and height; had never been known to have had any disease or sickness of any consequence. He was apparently in comfortable financial circumstances, and had owned an automobile for many years which he had used for his personal enjoyment. At the time of his death he had been spending the summer at Delavan Lake in Wisconsin. He was last seen alive in this vicinity with the automobile in the evening. He was found dead the next morning about 10 o’clock at the side of his automobile, with his body leaning forward through the side door and his face resting upon the back seat; one foot was on the ground and the other curled up under Mm on the runMng board. The automobile was of an old-fashioned type which cranked on the side. When the body was discovered the machine was all ready for starting except the cranking; the crank was lying on the ground a few feet away. This automobile was difficult to crank, and on several occasions it had back-fired, causing the crank either to fly off the machine or strike and injure the person who was cranking it. The autopsy showed the deceased to be free from any sort of disease; the vital organs were normal. There was a small mark, about an inch long and a half inch wide, on the breast immediately over the heart, which was. described as a sort of fresh bruise, made by a blunt instrument, like the crank, striking him a blow at that point. Medical experts testified that a blow at that point from a blunt instrument, with force sufficient to produce such a bruise, might cause death by paralyzing the action of the heart, and they gave it as their opinion that the death of Jones was from paralysis of the heart caused by a blow received at the point where the bruise was located.

Plaintiff asserted in his declaration that Jones while cranking his automobile was struck by the crank and injured so that death resulted. Defendant contends that the evidence merely raises a presumption that he was struck by the crank, and to presume that death resulted from this is to violate the rule that one presumption cannot be based upon another presumption as the basis of recovery. Globe Acc. Ins. Co. v. Gerisch, 163 Ill. 625. This fallaciously assumes that the cause of death rests only on inference, whereas the evidence of this' is direct. The fact that J ones died while engaged in some act related to his automobile is established by positive proof j there is also the visible mark of a blow over the heart; the doctors testify unequivocally that this blow caused the death; none of these facts rests upon inferential evidence. Suppose the blow was a penetrating one piercing the heart, or upon the head crushing the skull, could it reasonably be said that the cause of death was only an inference? Clearly not. So in the instant case, the visible mark of a blow and the affirmative testimony of the physicians are direct evidence, and though to the layman the connection between the blow and death may not be so obvious as in these supposititious cases, the character of the evidence is not changed thereby. It is direct and not inferential, whether it accords with our personal knowledge or not. The character of the evidence, whether inferential or direct, is not determined by its degree of cogency.

The statements of the physicians, with the evidence of the healthy bodily condition of Mr. Jones, tend to meet the argument that his death may have resulted from disease or bodily infirmity. The direct character of this evidence is not changed by the possibilities of speculation in other directions.

While the cause of death is presented by direct evidence, the cause of the blow rests upon inference. From the evidence the jury might properly infer that the blow came from the crank while Jones was cranking his machine; and one inference is permitted. Should the jury so infer, then the character of the blow as accidental would be established. That it was external and violent is evident from the description given by those who saw the wound.

In the Gerisch case, supra, the daily habit of the insured to carry out the ash box raised the inference that he did this at the time in question, and upon this inference a second inference was sought, namely, that this caused strain. In the instant case, the presence of the crank is not inferred but is established by direct testimony; also its shape with reference to the size and nature of the bruise on the body of Mr. Jones. These are items of positive evidence from which the inference may be drawn that the crank was the instrument which wounded the insured.

The jury should have been permitted to consider the evidence presented on behalf of the plaintiff, and that for the defendant, if any, and determine the nature of the injury received by the insured, and whether it met the conditions of the policy which made the defendant liable.

For the reasons above indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice McSurely

text:
    John E. Traeger, Sheriff, for use of David Sachs, Appellee, v. National Surety Company and Mandel Weininger, Appellants.
    Gen. No. 24,180.
    Fraudulent conveyances, § 15

      —what constitutes sale within Bulk Sales Act. An assignment by a merchant of his merchandise, fixtures, etc., to one to sell and distribute the proceeds among his creditors is a sale within the meaning of the Bulk Sales Act [Callaghan’s 1916 St. Supp. ¶ 10021(1) et seq.], and one to whom the assignee transfers such merchandise without complying with the act acquires no title as against a judgment creditor of the assignor.
    Appeal from the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed October 1, 1918.
    Rehearing denied October 14, 1918.
    N. J. Pritzker and Maxwell B. Herman, for appellants ; Douglas C. Gregg, of counsel.
    Fred H. Atwood, Charles O. Loucks and Vernon B. Loucks, for appellee; Frank N. Seed, of counsel.

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

   Mr. Justice McSurely

delivered the opinion of the court.

In this suit, upon a replevin bond, plaintiff had judgment for $385.10,' which defendants ask to have reversed.

The facts seem to be that one Herman Breyer was the proprietor of a furnishing goods store in Chicago. Being in financial difficulties, on December 30, 1914, he executed a bill of sale to Jacob Katz and H. A. Pillman, two of his creditors, in and by which he “granted, sold, conveyed and assigned, and by these presents does grant, sell, convey and assign unto the said Jacob Katz and H. A. Pillman” all his property and assets, including stocks of merchandise, store and office fixtures, etc. The instrument further provided that Katz and Pill-man should make a sale of the property and distribute the proceeds thereof among the creditors of Breyer, and that until the purpose of the agreement had been consummated Breyer was to retain his possession of the store at a salary. Subsequently the goods were sold under this agreement to Mandel Weininger, one of the defendants, for enough to pay twenty-five cents on the dollar to creditors of Breyer. After the creditors had been paid Weininger did not take over the goods or the business, btvfc Breyer continued in possession of the store and goods, with his name on the signs and on the boxes which held goods. It is argued that all this was merely a ruse by which Breyer planned to dispose of his creditors at twenty-five cents on the dollar and then continue to operate the business with the goods which the creditors had furnished and delivered to him.

In March, 1915, David Sachs, the beneficial plaintiff, brought suit against Breyer and two others on a promissory note, and obtained judgment for $233.42. An execution was sued out and levied upon the stock of goods in the store of which Breyer had possession. While the bailiff was in possession of these goods under Ms execution, Weininger sued out a writ of replevin in the Circuit Court, under wMch he took possession of the stock of goods. In the replevin suit the defendant National Surety Company was surety on Weininger’s bond. Judgment by default was rendered against Weimnger in the replevin suit, and a writ of retorno habendo was issued, but the goods were not returned. Thereupon this suit upon the bond followed, and upon trial on the merits there was judgment against the defendants.

Counsel for defendants claim that Weininger is protected because in the sale from Katz and Pillman to him the Bulk Sales Law in force in this State was complied with; and plaintiff replies that this cannot avail for the reason that the transfer from Breyer to Katz and Pillman was a transaction within the scope of the Bulk Sales Law and, concededly, that law was not complied with as regards that transaction.

The 1 ‘Act to regulate the sale or transfer of goods, ”, etc., in force July 1, 1913 (Hurd’s Ill. St. 1915-16, p. 2331) [Callaghan’s 1916 St. Supp. ¶ 10021(1) et seq.], provides that “the sale, transfer, or assignment in bulk of the major part or the whole of a stock of merchandise, or merchandise and fixtures or other goods and chattels of the vendor’s business, otherwise than in the ordinary course of trade and in the regular and usual prosecution of the vendor’s business shall be fraudulent and void as against the creditors of the said vendor, unless” certain conditions are observed. This language is squarely applicable to the transfer to Katz and Pillman. The words of conveyance in the bill of sale are complete and purport to sell and convey in bulk all of the stock of merchandise, otherwise than in the ordinary course of trade. No reason is suggested, and none occurs to us, why the Bulk Sales Law does not cover a transaction of this kind. We are referred to no decision in this State precisely in point, but in other jurisdictions, when the matter has been considered, the provisions of the Bulk Sales Law have been held to be applicable.

In Bailen v. E. P. Badger Import Co., 99 Neb. 24, after extended discussion and reference to decided cases, the court held that such a transfer for the benefit of creditors was within the requirements of the Bulk Sales Law. To the same effect are Gallus v. Elmer, 193 Mass. 106; Sampson v. Brandon Grocery Co., 127 Ga. 454; Humphrey v. Coquillard Wagon Works, 37 Okla. 714; Youghiogheny & Ohio Coal Co. v. Anderson, 186 Mich. 349.

Following the reasoning in these cases we are of the opinion that the Bulk Sales Law was intended to prevent a dealer disposing of his stock of merchandise outside of the usual course of business so that it should be taken away from his creditors in general, and that the assignment to Katz and Pillman was a sale within the scope of the statute. It follows, therefore, that the transfer to Weininger was void as against Sachs, a creditor holding Breyer’s note.

A suggestion is made of the allowance of an unreasonable amount for attorney’s fees, but under the evidence adduced we are not prepared to say that the finding of the court was not justified.

We see no reason to disturb the judgment, and it is affirmed.

Affirmed.