text:
    Samuel Tuscher, Plaintiff in Error, v. Jacob Tuscher, Defendant in Error.
    Accord and satisfaction, § 3

      —when part payment sufficient to discharge indebtedness. The payment of $350, “in full of all notes and act to date,” after negotiation and agreement to that effect, is sufficient to discharge in toto a promissory note for a much larger sum which was barred by the statute of limitations at the time of such settlement.
    Error to the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed April 12, 1919.
    Burton & Burton, for plaintiff in error.
    John J. Brenholt, for defendant in error.

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

By this writ of error it is sought to review a judgment of the Circuit Court of Madison county rendered May 25, 1918, in favor of Jacob Tuscher, the defendant below, against Samuel Tuscher, the plaintiff, for costs of suit, in an action of assumpsit on a promissory note.

The declaration was based on said note, which was dated March 14, 1894, due 2 years after date, for the sum of $795, with interest at the rate of 6 per cent per annum, signed by the said Jacob Tuscher and payable to the order of said Samuel Tuscher, upon which there was indorsed a payment of $350, on January 12, 1909. There were pleas of nonassumpsit, statute of limitations and that plaintiff had accepted from the defendant divers moneys, amounting to a large sum, to wit, the amount of all sums of money in the declaration mentioned, in full satisfaction and discharge of the several promises and of the sums of money claimed in the declaration. There were replications to the second and third pleas and issues were joined on all.

In 1908, more than 12 years after the note became due and between 2 and 3 years after the statute of limitations had become a bar to any action thereunder, the defendant wrote to plaintiff making him a proposition to pay him $350 in full of all he owed him if he would return the note, or, as plaintiff also testified, “In full for all notes and accounts.” The letter containing this proposition was said by plaintiff to have been burned by him and therefore the contents are testified to by defendant. In answer thereto, however, plaintiff wrote a letter accepting the proposition, which was preserved by defendant and introduced in evidence. In that letter plaintiff said among other things: “Tour terms are hard but I must take them as they are so you will please send the amount as you stated and oblige, Tour brother Samuel Tuscher.” Shortly after the receipt of this letter defendant sent plaintiff a check on the Citizens National Bank of Alton, Illinois, for said sum of $350, which was duly received by plaintiff and credited on said note. Upon the face of the check appeared the following: “Payment in full of all notes and act to date. L. A. S.” The letters L. A. 'S. were the initials of L. A. Schlafiy, vice president of said bank, who testified that his attention was called by defendant to the above statement on the check before it was sent to plaintiff and that he thereupon put his initials on the check. He also testified that in due course the check came back through his bank and was paid. The note in question was never returned to defendant, but no steps appear to have been taken by plaintiff to notify defendant that the debt was not satisfied by said check, or to collect said note until this suit was brought, some 9 years after the check was received by defendant.

Plaintiff in error complains that certain propositions of law submitted by him to the court were refused, but the real question raised is whether or not the facts, concerning which there was little or no dispute, showed there had or had not been a settlement of the debt for which the note was given. It would appear from the proofs as above set forth that both the parties must have understood at the time the payment was made of $350 that such sum was to be received in full settlement of the debt. No other conclusion could reasonably be drawn from the evidence. It is contended, however, by plaintiff in error that an acceptance by a creditor of a sum less than the amount due in satisfaction of the same is a discharge of only so much of the debt (Hayes v. Massachusetts Mut. Life Ins. Co., 125 Ill. 626); that “Where the amount due a creditor is ascertained and not in dispute, the payment by the debtor and acceptance by the creditor of a less sum will not operate as a satisfaction of the demand” (Snow v. Griesheimer, 220 Ill. 106); that a receipt in full for a note and interest is not a bar and cannot be considered a payment in full of the debt, and that any agreement to receive less than was due upon the note is a mere nudum factum (Hart v. Strong, 183 Ill. 349). The several propositions of law above laid down by plaintiff in error are in the main correct, although they have been so modified in special instances by courts of appeal, and depend so much for their application upon the proof in the particular case, that they do not present cast-iron rules applicable in every instance, and in this ease, under the uncontradicted facts, they do not appear to us to apply. At the time the payment of $350 was made by defendant in error, upon the agreement by plaintiff in error that he would receive the same in full payment of the note and would return the note, the same was barred by the statute of limitations. No debt was in law due from defendant in error to plaintiff in error at that time by reason of said note, and the only obligation resting upon defendant in error in that regard was a moral one. Defendant in error, in effect, purchased the outlawed claim from his brother, who received the money sent him in full payment for the same in accordance with his agreement, as shown by his letter above referred to, and in accordance with a statement or condition written on defendant in error’s check. The judgment of the court below in favor of defendant in error will therefore be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Higbee

license: Public Domain

text:
    Albert Grotefendt, Executor, Appellee, v. Ella Schlaeppi-Siever and Hilda Schlaeppi, Appellants.
    1. Landlord and tenant, § 526

      -—when tenant owner of wheat to be used to pay rent. Where rent is to he paid in wheat raised on the land, the tenant remains the exclusive owner of the entire crop until the wheat is threshed and the stipulated share is set oB to the landlord.
    2. Remainders, § 15

      —when remaindermen entitled to crops paid as rent after death of life tenant. Under a will giving a life estate in all property to the widow, with the remainder to the children, the children are entitled to the proceeds of wheat threshed and delivered as rent after the death of the widow, although cut and shocked before the widow’s death.
    Appeal from the Circuit Court of Madison county; the Hon. J. F. . Gillham, Judge, presiding. Heard in this court at the October term, 1918.
    Reversed and remanded with directions.
    Opinion filed April 12, 1919.
    Cook & Meyer, for appellants.
    Springer & Buckley, for appellee.

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

There is no controversy as to the facts in this case as they appear in the record by stipulation. John Schlaeppi, father of appellants, died testate on February 17, 1917, and his will was admitted to probate in Madison county. Appellants were named as executrices thereof, qualified, and have never been discharged. The only part of the will here relevant is the second clause, which is as follows:

“Second. I give, devise and bequeath unto my wife, Wilhelmina Schlaeppi, all my property and estate, real, personal and mixed of every kind and description, to have and' to hold to her for and during the term of her natural life; and subject to said life estate I give, devise and bequeath all of said property and estate, real, personal and mixed, of every kind and description, to my two daughters, Ella Schlaeppi and Hilda Schlaeppi, in equal parts, share and share alike.”

Prior to his death, John Schlaeppi was the owner of certain real estate, a part of which he had rented to Tony Schmidt. By the terms of the renting as stated in the stipulation, “Schmidt was to deliver one-third of the wheat grown on the land as rent, such rent wheat to be delivered in the elevator in Highland, Illinois, when same was threshed. ’ ’ Schlaeppi owned the land at the time of his death and the wheat was growing on the land. Wilhelmina Schlaeppi, widow of John Schlaeppi, died on the 15th day of July, 1917. At the time of her death the wheat was in the shock in the field. It was threshed July 20, 1917, five days after her death, was delivered at the elevator in Highland, Illinois, on July 21, 1917, and the money for the same was turned over to appellants. Wilhelmina Schlaeppi died testate, her will was admitted to probate in Madison county and appellee was appointed executor thereof, in which capacity he is now acting. Appellants claim the rent wheat, or the proceeds therefrom, as heirs and devisees of their father, John Schlaeppi, and appellee claims the same as executor of the estate of Wilhelmina Sehlaeppi. Appellee petitioned. the Probate Court of Madison county to have appellants cited into court to show cause why they should not pay said rent money to him. The court found appellants had in their possession $544.50, proceeds from sale of rent wheat, due the estate of Wilhelmina Sehlaeppi, deceased, and ordered them to pay the same over to appellee. From that judgment of the Probate Court appellants appealed to the Circuit Court of Madison county. In that court appellants made a motion to quash the citation and dismiss the cause. The Circuit Court overruled the motion and on the facts as stipulated ordered appellants to pay appellee said sum of money and costs, and the case has been brought here for review.

Appellants insist that the Probate and Circuit Courts, under sections 80 and 81 of chapter 3 of our statute (J. & A. ¶¶ 130, 131), did not have jurisdiction to hear and determine this cause. That raises a grave question, but for the purposes of this hearing we will assume that the Probate and Circuit Courts had jurisdiction of the subject-matter, as, in our view, the determination of the ownership of the money in question should fully dispose of the case. Where rent is to be paid in kind, the tenant remains the exclusive owner of the crop until the stipulated rent is set off to the landlord. (Dixon v. Niccolls, 39 Ill. 372, and cases there cited; Sargent v. Courrier, 66 Ill. 245.) Tony Schmidt was the tenant of John 'Sehlaeppi, paying a crop rent, and, under the terms of the lease and the authorities cited, he was, at the death of Wilhelmina Sehlaeppi, and for several days thereafter until the same was threshed and delivered at the elevator, the owner of the wheat which was sold for the money in question. The rent wheat which produced that money was neither threshed nor delivered during the lifetime of Wilhelmina Sehlaeppi, and by the terms of the lease it was not due at the time of her death. She therefore never became the owner of such wheat. Said wheat was not converted into money until several days subsequent to her death, and it follows that she was not the owner of the money in question at the time of her death. Appellee, her executor, had no greater right or title in or to the rent wheat, or the money in question, than did Wilhelmina Schlaeppi, and it therefore follows that he never was the owner of the rent wheat and is not now the owner of or entitled to the money in question. Under such circumstances and the well-settled law of this State, the right to receive the rent belonged to appellants, the owners of the fee in the land (Green v. Massie, 13 Ill. 363; Foltz v. Prouse, 17 Ill. 487; Dixon v. Niccolls, supra; Haynes v. McDonald, 158 Ill. App. 294); and it follows that the money derived from said wheat belongs to appellants.

For the reasons above given, the Circuit Court should have dismissed the petition of appellee. The judgment of the Circuit Court is reversed and the cause remanded with directions to dismiss the petition.

jReversed and remanded with directions.


text:
    Harry Kingsbury, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    1. Cabbiebs, g 226

      —when liable far loss of mare with foal. The rule that a carrier is not an insurer of animals against injury caused by their nature or lack of vitality will not defeat a verdict for the loss of a mare, heavy with foal, where the evidence shows that she was accustomed to shipment and in good condition.
    2. Cabbiebs, g 248

      —when evidence sustains verdict for loss of mare. A verdict and judgment for the loss of a mare is sufficiently supported by evidence of more than 15 hours’ delay in a short haul, that she was not securely fastened in the car, that she was not given food or drink, was not sent by a direct route, and that the consignee was not notified, and she was not unloaded, for 5 hours after her arrival.
    3. Cabbiebs, § 239

      —what is effect of section 10 of Uniform Bills of Lading Act on limitations on liability. Section 10 of the Uniform Bills of Lading Act (J. & A. f 2175), providing that no parties shall be allowed to deny that they are bound by the terms and conditions of a bill of lading received by the consignor, does not change the rule as to the effect of limitations on liability, but merely shifts the burden of proof.
    4. Cabbiebs, § 239

      —when undervaluation in bill of lading no bar to full recovery of loss. A valuation of $150 in a bill of lading will not defeat a verdict and judgment for $800 for the loss of a mare through negligence of the railroad carrier.
    5. Cabbiebs, § 239

      —when instruction on limitation of liability not prejudicial. In an action for the loss of a mare through several hours’ delay in a short haul, and failure to unload or notify the consignee for 5 hours after her arrival, it is not prejudicial to instruct that a limitation of liability in the bill of lading is no defense, if the jury believe the loss was caused by wanton or gross negligence.
    Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed April 12, 1919.
    C. E. Pope and H. F. Dbiembyer, for appellant; Silas H. Strawn, of counsel.
    D. H. Mudge, for appellee.

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

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

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

On May 16, 1918, at about 3:30 p. m., appellee delivered to the agent of appellant at East 'St. Louis, Illinois, a mare for shipment over its railroad to W. T. Dethridge, at Brighton, Illinois, a distance of about 38 miles. The mare was accustomed to shipment in cars and was in good condition, but was heavy with foal. She was loaded about 4:30 p. m. in a box or grain car, and tied in one end of the same by ropes from her halter to cleats nailed on the sides of the car.

At that time appellant’s train No. 80 left East St. Louis at 4:30 p. m. and train No. 98 left at 6:30 p. m., both on the main line running through Brighton, arriving at the latter place at 5:34 and 8:30 p. m., respectively. At 1:05 a. m., May 17, 1918, the car in which the mare had been loaded was started out of East St. Louis over the Boodhouse branch of appellant’s railroad, arriving at Godfrey at about 5:20 a. m,, where the train was delayed and the car transferred to appellant’s branch railroad running east from Godfrey through Brighton, which place the mare reached about 8:30 a. m., May 17, 1918. The consignee made inquiry of appellant’s agent at Brighton on the morning of May 17th concerning the mare, but she had not then arrived. He did not receive notice of the mare’s arrival until about 1:30 p. m. of that day, when he at once proceeded to unload her. When the car was opened the ropes were broken, the mare was weak, wet with sweat and breathing hard. There is some dispute as to whether she showed bruises or evidence of violence. She was led about 200 feet from the car to the place where she died, about one-half hour after being unloaded. Appellant introduced in evidence the bill of lading signed by appellee, placing a valuation of $150 on the mare. The rate clerk by whom it was prepared had no recollection of the transaction. Appellee claimed he did not read the bill of lading and did not know its contents but he placed the value at $150 on the mare and knew he was securing a cheaper freight rate than he would secure at a higher valuation. Dethridge, a stockman, had many animals shipped to him, and they invariably came to Brighton over the main line, reaching there on No. 80 at about 5:34 p. m., or, on No. 98 at about 8:30 p. m. This mare, loaded at 4:30 p. m., arrived at 8:30 the next morning and remained in the car until 1:30 p. m., or about 21 hours.

Appellee brought suit in the Circuit Court of Madison county to recover $1,500, alleged to b© the value of the mare. The first count of the declaration charged negligence in transporting the mare, delay, keeping from her food and drink, and injury resulting in her death. The additional count contains the same averments and alleges "wilful and wanton negligence. The case was tried before a jury and a verdict rendered in favor of appellee in the sum of $800. A new trial was denied, judgment rendered on the verdict and an appeal prosecuted to this court. It is insisted by appellant there is no evidence tending to prove that the injury to and death of the mare resulted directly or indirectly from negligence of the carrier. Appellant is a common carrier, and the rule is that as such it is an insurer against everything but the acts of Grod and the enemies of the country. Merchants’ Despatch Transp. Co. v. Kahn, 76 Ill. 520; Illinois Cent. R. Co. v. McClellan, 54 Ill. 58; St. Louis, A. & T. H. R. Co. v. Montgomery, 39 Ill. 335. Appellant cites numerous authorities to the effect that a common carrier is not an insurer of animals against injury of death caused by their nature which could not be guarded against by foresight and vigilance. Although the mare was heavy with foal, she was accustomed to being shipped in a car, and the evidence was such as to warrant a jury in finding that the facts did not bring the case within that rule of law. “It seems that the undertaking of a common carrier, in the absence of any special contract, is to transport the property to the place of destination by the most usual, safe, direct and expeditious route. Failing in any of these, unless prevented by inevitable accident, it must be held liable for loss.” Merchants’ Despatch Transp. Co. v. Kahn, supra. Appellant also cites authorities to the effect that a common carrier is not liable for failure to deliver stock in good condition if the loss is caused by its lack of vitality and not by any fault or negligence of, or violation of any duty by, the carrier.

The evidence tended to show the mare could have been taken from East St. Louis directly to her destination at either 4:30 or 6:30 p. m. and unloaded at 5:34 or 8:30 p. m. the same day; that she was not securely fastened in the car because the ropes were broken; that she was not given drink or food; that she was sent indirectly, and that notwithstanding her delay in reaching her destination, she could have been unloaded 5 hours sooner than she was. If the jury so found the facts, they would have also been justified in finding that the same constituted a violation of duty on the part of appellant and caused the death of the mare, and that her death was not caused by her nature or lack of vitality. It is the province of the jury to determine what acts do and what do not constitute negligence, and where they have found that the acts proven constitute negligence, a court of appeal will be slow to reverse such decision, unless so manifestly against the law and the evidence as to require a reversal on that account. Moyers v. Illinois Cent. R. Co., 197 Ill. App. 179. Appellant further insists that, because appellee failed to object to the terms of the bill of lading, the amount of his recovery is limited to $150, the valuation therein placed on the mare. Section 10 of the Uniform Bills of Lading Act (J. & A. ¶ 2175) provides: “Except as otherwise provided in this Act, where a consignor receives a bill and makes no objection as hereinafter provided to its terms or conditions, neither the consignor nor any person who accepts delivery of the goods, or any person who seeks to enforce any provision of the bill, shall be allowed to deny that he is bound by such terms and conditions, so far as they are not contrary to law or public policy.” The Appellate Court for the Third District, in Bean v. Jackson, 207 Ill. App. 577, used this language in reference to the section of the law above quoted: “The Uniform Bill of Lading Act has not changed the rule as to the effect of such limitation of liability stipulations, but has changed the rule in regard to the proof of the making of the contract, or, in other words, of the assent of the shipper to the limitation stipulations. Formerly the carrier was bound to prove the shipper’s knowledge of such stipulations limiting liability, and his assent thereto. (Wabash R. Co. v. Thomas, 122 Ill. App. 569; Chicago & N. W. Ry. Co. v. Calumet Stock Farm, 194 Ill. 9; Cleveland, C., C. & St. L. Ry. Co. v. Patton, 203 Ill. 376.) Now under the act referred to, when it is established that the shipper has received a bill of lading containing such stipulations and makes no objections thereto and particularly when he has signed the same, he is conclusively presumed to have known and assented to the same and is not allowed to deny that he is bound thereby.”

In Chicago & N. W. Ry. Co. v. Calumet Stock Farm, 194 Ill. 9, three horses were shipped under a contract limiting the carrier’s liability to $100 on each horse, yeu a judgment for $1,500 was affirmed, and the ’Supreme Court in its opinion laid down the following rule: “A common carrier cannot, even by express contract, exempt itself from liability resulting from the gross negligence or wilful misconduct committed by itself or its servants or employees. Whatever may be the rule elsewhere, in this State the common carrier cannot contract for exemption from responsibility for a failure on its part, or that of its servants, to exercise ordinary care in the transaction of its business. If the carrier may by contract limit its liability for gross negligence or wilful misfeasance to any extent, it may contract for total exemption. A contract for exemption from liability for its torts being void, as against public policy, it cannot shield itself as to any portion of the damages to person or property occasioned by its gross negligence or wilful misconduct. As we have seen, it may protect itself against fraud by requiring the consignee to state the value of the thing shipped; but when it receives property for transportation. it must exercise reasonable care until it reaches its place of destination, and will not be permitted to absolve itself from that responsibility.”

In Moyers v. Illinois Cent, R. Co., 197 Ill. App., 179, where a jack died from injuries received in shipment, the shipper had placed a value of $100 on the animal and an attempt was made to limit the carrier’s liability to that sum. The declaration charged general negligence, and this court in affirming a judgment for $300 said: “It was the duty of appellant to safely deliver such property at the place to which it was consigned, and it had no power to limit its liability in this respect but was bound by statute so to do.” To construe the bill of lading in this case as appellant contends it should be under the Uniform Bills of Lading Act, would give it the effect of permitting appellant, a common carrier, to contract against its own negligence, and that of its agents and employees, which would be in conflict with the authorities cited and contrary to public policy and the settled law of this State. Said act has not changed the law upon this question but has simply changed the rule in regard to .the proof of the making of the contract. Bean v. Jackson, supra. We think the law of this State on this point remains as stated in 10 Corpus Juris, 171: “When loss or damage results from a violation of the contract of shipment, growing out of the negligence of the carrier or its servants, any limitation as to the amount recoverable for loss or injury contained in the contract of shipment is inoperative although a reduced rate of freight is charged. The decisions formulating this rule very generally hold that contracts of this nature are in direct contravention of the common-law doctrine which forbids a common carrier to contract for exemption against the consequences of its own negligence or that of its servants.”

Appellant claims there was error in giving the second instruction offered by appellee, which instructs the jury that if they believe that the mare was injured as a result of the wanton or gross negligence of defendant as charged in the additional count of the declaration, the limitation in the bill of lading would not constitute any defense, for the reason that there was absolutely no evidence in the case proving appellant guilty in any manner of wanton, wilful or gross negligence, or tending to prove any negligence. Without discussing the facts further it is apparent from what we have said that in the view we take of the facts in this case there was evidence from which the jury could properly conclude that appellant was guilty of negligence or even wanton, wilful or gross negligence, and therefore there was no error in giving said instruction.

For the reasons given, the judgment of the Circuit Court will be affirmed.

Affirmed.


author: Mr. Justice Boggs

text:
    Maggie Kennedy, Administratrix, Defendant in Error, v. Walter L. Ross, Receiver, Plaintiff in Error.
    1. Master and servant, § 782

      —when instruction on contributory negligence of railroad trackwalker is erroneous. In an action for the wrongful death of a railroad trackwalker, killed by a train while crossing a trestle, it is erroneous to instruct that the deceased was not guilty of contributory negligence if he exercised reasonable care in attempting to escape from the trestle, disregarding evidence showing that the deceased heard and knew of the approaching train and debated the propriety of entering upon the trestle.
    2. Master and servant, § 816

      —when instruction on contributory negligence of trackwalker is insufficient. The words “At the time of the injury,” used in an instruction on contributory negligence, are not broad enough to include the action of the deceased railroad trackwalker in venturing upon the trestle, where they are further limited to what the deceased did while on the trestle in attempting to escape the approaching train.
    3. Master and servant, § 98

      —what is effect of contributory negligence in action under Federal Employers’ Liability Act. Although contributory negligence is not a bar to an action under the Federal Employers’ Liability Act for wrongful death of a railroad employee, it is material on the question of damages.
    4. Death, § 73

      —when instruction on damages for wrongful is erroneous. In an action under the Federal Employers’ Liability Act for the wrongful death of a railroad trackwalker, an instruction on the measure of damages is faulty if it fails to limit the amount of recovery to the present cash value of the future benefits of which the beneficiaries are deprived.
    5. Master and servant, § 98

      —what law governs as to damages in actions under Federal Employers’ Liability Act. The question of the proper measure of damages in cases arising under the Federal Employers’ Liability Act must be settled according to principles of law administered in the federal courts.
    Error to the Circuit Court of Fayette county; the Hon. William B. Wright, Judge, presiding. Heard in this court at the October term, 1918.
    Reversed and remanded.
    Opinion filed April 12, 1919.
    C. E. Pope, fur plaintiff in error; Charles A. SCHMETTAU, of COUHSel.
    Wiley & Morey and Melyik Wright, 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 Boggs

delivered the opinion of the court.

Plaintiff in error, the receiver of the Toledo, St. Louis and Western Railroad Company, seeks to reverse a judgment for $3,000, rendered against him in the Circuit Court of Fayette county, in an action on the case, to recover damages for the death of Jacob 1ST. Kennedy, a trackwalker employed by him as such receiver.

The declaration consists of seven counts, all of which allege that said Jacob N. Kennedy, the deceased, was an employee of plaintiff in error at the time of his death and that plaintiff in error was a common carrier, engaged in interstate commerce at the time of the accident, and that Kennedy was also so engaged and in the exercise of due care for his own safety.

The first count alleges that the servants and agents of plaintiff in error saw, or by the use of proper care could have seen, Kennedy on the trestle or bridge on which he was walking at the time he was struck by plaintiff in error’s train, and that, by reason of the failure so to do, Kennedy was struck and received the injury from which he died, and further charges the operation of plaintiff in error’s train at a high and dangerous rate of speed.

The second count alleges the negligent driving of the engine of said train, the failure to keep a proper lookout and failure to give proper signals, and to stop the train in time to avoid injuring said deceased, etc.

The third count alleges that it was the duty of plaintiff in error through his servants to give warning by blowing the whistle or ringing the bell on said engine, and charges a failure so to do, and alleges the running of the train at a high and dangerous rate of speed, etc.

The fourth count charges that it was the duty of plaintiff in error to have equipped his engine with a sufficient headlight, alleging failure so to do, and a failure to keep the same properly lighted.

The fifth count charges that it was the duty of plaintiff in error through Ms agents to stop the train when Kennedy’s red light was displayed, and a failure so to do. The sixth count alleges it was the duty of the receiver, through his agents, to inform said train crew of Kennedy’s presence on said track in the performance of his duty as a trackwalker and alleges a failure so to do.

The seventh count charges negligence generally in the operation of the train.

At the time of the accident, Walter L. Boss was receiver of the Toledo, St. Louis and Western Railroad Company and operated said road and was a common carrier engaged in interstate commerce. Kennedy, at the time he was killed, was an employee, engaged in interstate commerce, and it was so stipulated on the trial.

The record discloses that on May 30,1917, there had been a local rainstorm in the vicinity of Ramsey, Illinois, and the section foreman, at about 7:30 p. m., requested one Lambert and defendant in error’s intestate to walk eastward over the track from Ramsey for the purpose of giving signals or warning to trainmen if the track was found in a dangerous condition at any point on this section. 'Said parties were furnished with torpedoes and two lanterns, one with a red globe and one with an ordinary globe. The red light was to be displayed in the event a dangerous condition was discovered or torpedoes were to be placed on the track according to railroad rules to warn on-coming trains.

The record discloses that according to schedule a through passenger train going east should pass a local passenger train at Ramsey at 8:00 p. m., going in the same direction, and that after about 10 minutes said local passenger should proceed east. The record also discloses that at this time Lambert and defendant in error’s intestate were at a trestle some 2 or 3 miles east of Ramsey. This trestle was about 300 feet long, and as they were approaching the same they listened and heard a train coming but could not determine its distance, but knew that it had left Ramsey coming east. After some discussion they came to the conclusion they would have time to cross the trestle and proceeded to do so. After they had gotten about one-third way across, on looking back, they saw the headlight of the local passenger. Lambert testified that they were of the opinion that they would have time to get across the bridge and that they began to run. Lambert testified that he saw they would not be able to get across and advised defendant in error’s intestate to jump; that he, himself, jumped upon a stringer along said bridge and the train passed by without injuring him. Defendant in error’s intestate was struck, knocked from the bridge and died shortly thereafter.

Lambert further testified that he and Kennedy kept their red light hid under their coats so as not to stop the train. The engineer in charge of the train said he saw two white lights and slackened his speed until he saw the lights pass from the south side to the north side of the track and he then concluded the persons carrying the same had gotten onto the dump at the end of the bridge and he then increased his speed. As the engineer passed Lambert, he saw the red light, stopped the train, backed up and learned that Kennedy had been injured.

Plaintiff in error urges as a ground for the reversal of the judgment in this case, first,. that there is no proof of negligence on the part of plaintiff in error, and that the motion made by him at the close of the evidence of defendant in error and again at the close of all the evidence, to exclude the evidence and direct a verdict, should have been given, and that it was error not to do so; second, that defendant in error’s intestate assumed the risk of his employment; third, that the death of defendant in error’s intestate was occasioned solely by his own negligence; fourth, that the court erred in giving the third and fourth instructions given on behalf of defendant in error.

The judgment will have to he reversed for the giving of the third and fourth instructions given on behalf of defendant in error.

The third instruction is as follows: ‘ ‘ The court instructs the jury that the plaintiff’s intestate was only required to exercise reasonable care and prudence in attempting to escape from defendant’s bridge after the approach of the defendant’s engine became known to him, and if you find from the evidence that he was exercising reasonable care to escape from the bridge at the time of the injury then he was not guilty of contributory negligence, even though a better means of escape might have been chosen.”

The vice of this instruction consists in this, that the instruction practically assumes that defendant in error’s intestate was not negligent in going upon the bridge, and limits the question of his negligence to his action in trying to escape the injury while on the bridge and after he had seen the train. It wholly leaves out - of consideration the proposition as to whether or not he was negligent in going upon the bridge. The evidence offered on behalf of defendant in error clearly shows that before Lambert and defendant in error’s intestate went upon the bridge they heard the train coming and that they discussed the question as to whether or not they would have time to cross the bridge. They came to the conclusion they would have the time and started across. We think it was a very vital question to be submitted to the jury as to whether or not defendant in error’s intestate was guilty of contributory negligence when he went upon the bridge.

In Krieger v. Aurora, E. & C. R. Co., 242 Ill. 544, the court at page 551 says: “The averment was limited to the time when he was riding across the railroad, and there was practically no dispute that while he was so riding across the railroad he made every effort with his heavily loaded wagon to get off before the car reached him. The controversy was over the questions whether he could have seen or heard the car or the signals which were alleged to have been given before driving on the track and whether he was guilty of negligence in placing himself in the position of danger. An instruction must not limit the exercise of care and caution of the party injured to the time when he was in danger, regardless of his conduct in putting himself in that position. ”

In Chicago, M. & St. P. Ry. Co. v. Halsey, 133 Ill. 248, the court, at page 254 says: “Nor should the inquiry in regard to contributory negligence by the deceased have been directed only to the evidence of what the deceased did at the time of receiving the injury. The claim of appellant is not that he then failed to do what a man of ordinary caution would have done to avoid injury, but that he failed to do what a man of ordinary caution, under like circumstances, would have done to avoid placing himself in a position from which he could not escape without being injured. One who, failing to observe due care, blindly walks into a danger that the observance of due care would have enabled him to avoid, is no less guilty of contributory negligence than he who, by the observance of due care could extricate himself from danger, fails to make any effort for his personal safety, and because thereof is injured.” Citing, Abend v. Terre Haute & I. R. Co., 111 Ill. 203. North Chicago St. R. Co. v. Cossar, 203 Ill. 608, quotes and approves Chicago, M. & St. P. Ry. Co. v. Halsey, supra.

Defendant in error contends that the expression “At the time of the injury” used in said instruction covers the whole time of the transaction, and cited authorities holding to that effect. However, in this case it cannot be said that “at the time of the injury” as used in the instruction can be held to include the action of defendant in error’s intestate-in going upon the bridge, because the instruction expressly limits the question of due care of defendant in error’s intestate to what he did while on the bridge in attempting to escape after he had seen the train, so the cases cited are not applicable.

We therefore hold in view of the above authorities that the court erred in giving instruction No. 3. While contributory negligence in this case would not be a bar to a right of recovery, at the same time the amount of damages to be recovered is under the law to be abated in proportion to the amount the negligence of the deceased contributed to the injury. It was therefore imperative that the jury be correctly instructed in reference thereto.

i Instruction No. 4, given on behalf of defendant in error, is an instruction on the measure of damages. This instruction is faulty in that it fails to state that the amount of recovery should be limited to the present cash value of the future benefits, which the beneficiaries may be shown to have been deprived, by the death of the intestate, making proper allowances according to the circumstances for the earning power of the money.

In Chesapeake & O. Ry. Co. v. Kelly, 241 U. S. 485 [13 N. C. C. A. 673], the court in. the body of the opinion says: “We are constrained to say that, in our opinion, the Court of Appeals erred in its conclusion upon this point. The damages should be equivalent to compensation for the deprivation of the reasonable expectation of pecuniary benefits that would have resulted from the continued life of the deceased. * * * So far as a verdict is based upon the deprivation of future benefits, it will afford more than compensation if it be made up by aggregating the benefits without taking account of the earning power of the money that is presently to be awarded. It is self-evident that a given sum of money in hand is worth more than the like sum of money payable in the future. Ordinarily a person seeking to recover damages for the wrongful act of another must do that which a reasonable man would do under the circumstances to limit the amount of the damages. * * * But the question of the proper measure of damages is inseparably connected with the right of action, and in cases arising under the Federal Employers’ Liability Act it must be settled according to general principles of law as administered in the federal courts.”

Other errors were assigned on the record, but we do not deem it necessary to discuss the same.

For the reasons above set forth the judgment of the trial court will be reversed and the cause will be remanded.

Reversed and remamded.


author: Mb. Justice Boggs

text:
    William Ebers, Receiver, Appellee, v. William Rieckenberg et al., Appellants.
    1. Creditors’ suit, § 56

      —when judgment for defendant proper under evidence. The defendant in a creditor’s bill is entitled to a decree, where the only evidence tending to show insolvency and the voluntary character of the conveyance was testimony by the complainant that he had a conversation with the defendant' in which the latter declared he had no property and that he had deeded it to his sons in payment for services rendered, without showing the date of the conversation.
    2. Creditors’ suit, § 56

      —when insolvency at time of conveyance not shown. The fact that a defendant in a creditor’s bill was insolvent 2 years after a conveyance is not sufficient to show in-, solvency at the time of conveyance, where his testimony shows that he was solvent at that time.
    3. 'Creditors’ suit, § 56

      —what complainant must show. A complainant in a creditor’s bill must show that the conveyances in question rendered the defendant insolvent at that time, or that they were made to hinder and delay creditors.
    4. Creditors’ suit, § 56

      —when shown that debtor not insolvent. Evidence reviewed and held to show the defendant in a creditor’s bill not to have been insolvent at the time of the conveyance in question, or subsequently when the executions were returned by the sheriff at the suggestion of the complainant.
    Appeal from the Circuit Court of Randolph county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1918. Certiorari denied by Supreme Court (making opinion final).
    Reversed and remanded with directions.
    Opinion filed April 12, 1919.
    A. C. Bollinger and J. Feed G-ilster, for appellants..
    H. Olay Horner, for appellee.

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

   Mb. Justice Boggs

delivered the opinion of the court.

Appellee, as receiver of the Farmers Bank of Steele-ville, filed a creditor’s bill in the Circuit Court of Randolph county against appellants, setting forth the recovery of certain judgments against appellant William Rieckenberg, aggregating $2,628.33; that executions were issued on said judgments and were returned by the sheriff, “no property found wherewith to satisfy the same”; that appellant, William Rieckenberg, widower, conveyed to. his sons, appellants herein, 120 acres of land each, located in Randolph county, reserving to himself as grantor therein a life estate in said lands, said deeds being dated May 21, 1915.

It is further charged in said bill: “That no consideration was paid by the grantees of said deeds for their respective grants of land and said deeds were in fact made without consideration and as gifts by said grantor to his said sons respectively; that said deeds were intended to hinder and delay the said Farmers Bank and this receiver in the collection of said indebtedness; and that said deeds are void as to complainant to the extent of said unpaid indebtedness.”

The prayer of said bill is that execution issue against said land and that in default of the payment of said judgments that said lands so conveyed to appellants, R. H. Rieckenberg and H. W. Rieckenberg, sons of appellant, William Rieckenberg, be sold to satisfy the same. An answer was filed by appellants herein denying the averments of said bill and denying that appellee was entitled to the relief prayed. Said cause was heard by the chancellor in open court, a finding was made for complainant and a decree entered finding the issues for appellee and decreeing that the conveyances made by appellant, William Rieckenberg, to his sons respectively, appellants herein, be set aside and vacated and to be for naught taken as against the said judgment of complainant herein, etc.

To reverse said decree this appeal is prosecuted.

The record discloses that appellee, as receiver, on December 12, 1916, recovered a judgment against appellant, William Rieckenberg, for $570.25 and on February 5,1917, he recovered a judgment against appellant, William Rieckenberg, and C. E. Robinson for $852.05, and on February 5, 1917, he obtained a judgment against William Rieckenberg and Amos Rury for $494.83, and on the same day he obtained a judgment against William Rieckenberg and Fred Rednour for $273.45, and on February 12, 1917, he obtained a judgment against William Rieckenberg for $337.75; that said judgments were severally entered by confession and that each of the notes on which said judgments were obtained were valid and outstanding and owing by appellant, William Rieckenberg, on May 21, 1915, the date of the conveyance sought to be set aside. The record further discloses that the sheriff to whom the executions were issued on said judgments made the following return on each of said executions on the 20th day of February, 1917. “Having this 20th day of February, 1917, made demand on William Rieckenberg for property to satisfy this judgment and the said William Rieckenberg having turned out none, having made search for property to satisfy the execution and being unable to find any property, at the suggestion of plaintiff’s attorney made this 20th day of February, 1917, I return this execution no property found wherewith to satisfy the same. Signed, W. George Beever, Sheriff, by McGuire.”

To sustain the averments of his bill appellee offered in evidence the two deeds in question, one to each of the sons of William Rieckenberg, and the testimony of Charles J. Kribs, the circuit clerk of Randolph county and ex-officio recorder of said county, who testified to the effect that the records made by him as such recorder tended to show that his instructions were to return said deeds to William Rieckenberg.

The parties hereto stipulated that the several judgments above referred to were rendered as above set forth and that executions were issued thereon and a return made on each execution in the words above specified. In addition thereto, appellee testified, over the objection of appellants, that he had a conversation with William Bieckenberg and that in that conversation he said “he had no property,” that “he had deeded it to his sons, Budolph and William,” and when asked “whether they had paid him any money for it,” or the conversation brought out that matter, he said, “No, they had not paid him any money except what they had earned before they were of age, or up to the time he made the deeds, for the work they had done for him,” that was his statement. This was the only testimony in the record offered by appellee tending to show that the conveyances in question made to the sons of William Bieckenberg were voluntary and that the said William Bieckenberg had no other property. There is nothing in the question asked or the answer made as above set forth to indicate when this conversation was had. When appellee rested his case, appellants moved the court for a finding and decree in their favor on the ground that the proof did not sustain the allegations of insolvency of appellant, William Bieckenberg, at the time of the making of the deeds; that the insolvency, if any was shown, was shown to have been on February 20, 1917, being the date of the return of the execution. In our judgment the motion should have been allowed, and the court erred in failing to allow the same. However, appellants offered evidence on the hearing after said motion was overruled, which said evidence tended to prove that on May 21, 1915, the date of the conveyance in question, appellant, William Bieckenberg, who was then engaged in the hardware and implement business, had on hand $2,433.65 in value of implements, stock food, etc., and that all that he owed on said stock of goods was $396.65, owing to the John Deere Company, and that he had on hand book accounts aggregating $6,995.59. The specific articles making up the stock of goods and the value of the same and the names and amounts of the several accounts making up the aggregate above specified are set forth in the evidence. That he also owned a grain house worth about $600, and that he owned two houses, one worth about $1,000, and one worth about $950, located in Steeleville. That he had 30 acres of land unincumbered in addition to what he had conveyed to his sons, and that it was worth about $1,200, and in addition to this real estate he had. retained a life estate in the 240 acres that he had conveyed to his two sons; that he at the time of making the conveyances in question was 65 years of age; and that the rental value of this land was about $3 per acre. On cross-examination it developed that in addition to owing the $396.65 to the John Deere Company he owed $1,100, and that some time after the conveyances to his sons he mortgaged the 30 acres in question to secure this $1,100. So far as the record discloses the indebtedness sought to be recovered in this proceeding, together with the claim owing to the John Deere Company and the $1,100, was all that appellee owed at the time of the conveyances in question.

It is contended by appellee’s counsel that inasmuch as the record discloses that appellant, William Rieckenberg, was unsuccessful in business and was unable to pay his debts in February, 1917, that therefore the conclusion must be drawn that he was insolvent in May, 1915, when the conveyances were executed. Appellant, William Rieekenberg, on cross-examination testified that he had collected over $3,000 of the book accounts, and when he was asked as to what he did with the money he made answer that he paid the money on his indebtedness and that he had to live and that he had not been making any money, but there is nothing in the record to show that the indebtedness that he was paying was indebtedness that existed prior to May 21, 1915. Appellee takes the position that in-a.smnch as the record discloses that no definite money consideration was paid by appellant’s two sons to their father, William Rieckenberg, for the conveyances in question, that these conveyances were therefore voluntary, and that, if voluntary, upon a return of execution unsatisfied, it makes out a prima facie case for appellee, while counsel for appellants insist that appellee is not only required to prove that the conveyances were voluntary but that at the time the conveyances were made appellant, William Rieckenberg, rendered himself insolvent by such conveyances.

The record discloses with reference to the consideration for these conveyances that appellant, William Rieckenberg, formerly lived on the land in question; that he desired to move to Steeleville and that he said to his sons that if they would stay on the farm and look after the farm for him he would pay them well for it. That his sons, the appellants, herein, did remain on the farm and did look after the farm for their father from 1908 until 1915, when the deeds were made, and that they had been paid nothing for their services up to that time. Without reference, however, to the question as to whether or not the conveyances to the appellants were voluntary, so far as they might affect the right of creditors, we are of the opinion that before appellee would be entitled to a decree setting aside these conveyances the evidence must show that at the time the conveyances were made the making of the conveyances rendered appellant, William Rieckenberg, insolvent, or the evidence in the record must show that the intention of appellant, William Rieckenberg, in the making of the conveyances, was to hinder and delay his creditors. We do not understand that appellee contends that there was any actual intention on the part of William Rieckenberg to hinder and delay his creditors, but only that the conveyance rendered him insolvent.

Where a complainant in a chancery proceeding seeks to reach the proceeds of a voluntary conveyance upon the ground that it was fraudulent in law, as to the donor’s creditors, there being no actual fraud, it is essential that the complainant aver and prove that the donor was insolvent at the time the conveyance was made. Moritz v. Hoffman, 35 Ill. 553; Merrell v. Johnson, 96 Ill. 224; Bittinger v. Kasten, 111 Ill. 260; Faloon v. McIntyre, 118 Ill. 292; Dimond v. Rogers, 203 Ill. 464; State Bank of Clinton v. Barnett, 250 Ill. 312.

In Bittinger v. Kasten, supra, the court at page 265, in quoting from Moritz v. Hoffman, 35 Ill. 553, says: “No creditor without a lien has any right to complain that his debtor is giving away property to his wife or children, unless such creditor can establish the fact that he has not retained enough to satisfy existing debts. Such grantor must make himself insolvent by such gifts or conveyances, and to impeach them, fraud must be charged and proved.” Citing, Van Wyck v. Seward, 6 Paige (N. Y.) 62.

In State Bank of Clinton v. Barnett, 250 Ill. 312, the court at page 318 says: “Appellee having failed to prove fraud in fact, the burden of proof devolved upon it to show that Mrs. Barnett rendered herself insolvent by making this gift before it could establish presumptive or legal fraud. In passing upon this question in Moritz v. Hoffman, 35 Ill. 553, we said (p. 556): ‘No one will dispute the principle appellant seeks to establish, that a voluntary conveyance, when the grantor is indebted at the time of its execution, is presumptive evidence of fraud; and a fraudulent intent will be presumed, from the fact that the party conveying was indebted at the time the conveyance was executed, and that as to pre-existing creditors, every conveyance not made on a consideration valuable in law is void. The principle is thus broadly stated, but it is subject to some qualification,—to this extent, at least, that the debtor retains in his possession property sufficient to discharge all debts existing at the time of making the conveyance alleged to be fraudulent. If this was not permitted, trade of every description would be very much crippled, and instead of there being an active interchange of property, the whole business of the country would stagnate. No creditor, without a lien, has any right to complain that his debtor is giving away property to his wife or children, unless such creditor can establish the fact that he has not retained enough to satisfy existing debts. Such grantor must make himself insolvent by such gifts or conveyances, and to impeach them, fraud must be charged and proved.’ And in the same case we also said (p. 558): ‘To impeach such a conveyance successfully, it lies upon the complainant to aver and prove that he was a creditor at the time and that the grantor was then insolvent, or such facts and circumstances as would authorize a court or jury to presume insolvency, none of which have been established in this case. ’ This case was followed and approved in Merrell v. Johnson, 96 Ill. 224; Bittinger v. Kasten, 111 Ill. 260, and Faloon v. McIntyre, 118 Ill. 292. In the Bittinger case it was said: ‘The owner of property may at any time give the same to any one he chooses, so long as he thereby injures no then existing creditor, * * * and the mere fact that he may be indebted is not alone sufficient to make a gift or voluntary conveyance by him inoperative’; and it was held that if the creditor failed to aver and prove insolvency of the debtor at the time the conveyance was made he was entitled to no relief. In passing upon the same question in Dimond v. Rogers, 203 Ill. 464, we said (p. 468): ‘In order to obtain relief it was necessary to prove a transfer which, in fact or in law, was fraudulent as to creditors, or in case of a voluntary gift or conveyance to the husband, that the judgment debtor did not retain enough money or property to pay her debts.’ ”

In view of the law as laid down by the Supreme Court in the cases above cited, we are of the opinion that appellee not only failed to prove that at the time the conveyances in question were sought to be set aside appellant, William Rieckenberg, rendered himself insolvent, but that so far as the record shows he was at the time solvent. We are also inclined to the opinion that the record discloses that at the time the executions were returned by the sheriff as herein set forth, appellant, William Rieckenberg, then had sufficient property to pay the judgments here sought to be collected.

The record discloses that appellant at the time these executions were served on him filed a schedule which discloses that appellant had book accounts aggregating $2,170; notes aggregating $500; the grain house heretofore mentioned; scales and a one-horse power engine. In addition thereto he had a life estate in the 240 acres in question.

Appellee at page 2 of his brief says: “At date of conveyances, he had personal property as follows:— A stock of implements and buggies and odds and ends, which he values at $2,037 net.” It might be observed that this is the amount appellant, William Rieckenberg, claimed his stock of goods were worth after deducting the bill he owed to the John Deere Company. “He had book accounts aggregating $6,995.59, and an old shack called a grain house built in the ‘seventies’ on railroad right of way as a sort of warehouse.”

While appellee concedes that the record discloses this amount of personal property, besides the real estate mentioned, he has not shown by the record and the record does not disclose that at the time of the. conveyances sought to be set aside appellant, William Rieckenberg, was not solvent, and did not have sufficient funds with which to pay all of his indebtedness he was shown to be owing at that time.

For the reasons above set forth the judgment and decree of the trial court will be reversed and the cause will be remanded with directions to dismiss the bill filed herein for want of equity.

Reversed rnd remanded ivith directions.


text:
    Bessie L. Fraley, Appellee, v. The Business Men’s Accident Association of America, Appellant.

      Insurance—when averment in declaration as to death by accident is sufficient on demurrer. An averment in an action on an accident insurance policy that the deceased “came to his death solely and exclusively by external, violent and accidental means, to wit: by accidentally falling under moving passenger train,” is not a mere conclusion, but sufficient on demurrer to support a verdict and judgment for the plaintiff.
    Appeal from the Circuit Court of Jackson county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed April 12, 1919.
    Gilmore & Brown and Isaac K. Levy, for appellant.
    'Schwartz & Hays and Martin & Glenn, for appellee ; Lawrence A. Glenn, of counsel.
   Mr. Justice Boggs

delivered the opinion of the court.

An action in assumpsit was instituted by appellee against appellant in the Circuit Court of Jackson county, on an accident policy issued to William H. Fraley, the deceased husband of appellee. The declaration consists of two special counts and the common counts.

The two special counts as finally amended each set out the policy in haec verba, and aver a compliance by the insured with its terms and conditions and with the by-laws of appellant and that said insured met his death on July 2, 1917. In addition thereto, each of said special counts avers that “said William H. Fraley, thereby insured, came to his death solely and exclusively by external, violent and accidental means, to wit: by accidentally falling under moving passenger train No. 224, St. Louis bound, on the Illinois Central Railroad, at about 6:50 a. m., of the said day, and was thereby then and there injured and killed.” Said counts also allege the giving of notice of death of said deceased, making of proofs, etc., in compliance with the terms of said policy. General and special demurrers were filed by appellant to the special counts of said amended declaration, which demurrers were by the court overruled. Appellant having elected to stand by its demurrer, the court called a jury to assess appellee’s damages, which were assessed at $5,129, and judgment was rendered against appellant for said amount and costs. To reverse said judgment this appeal is prosecuted.

It is the contention of appellant that the averment in the two special counts of the declaration that said deceased “came to his death solely and exclusively by external, violent and accidental means, to wit: by accidentally falling under moving passenger train,” etc., is merely the averment of a conclusion and not sufficient on which to base a right of recovery, a demurrer having been filed thereto. In other words, appellant contends that the facts in connection with the falling of the insured must be set out in the declaration so that it may be determined by the court as a matter of law, whether or not the insured met his death in the manner provided in the policy sued on. No authorities either from this State or from any other State were cited by appellant sustaining its contention,.as applied to the language of the policy here involved. Many authorities were cited by appellant laying down the general rule that sufficient facts must be averred in the declaration so that the court may, on demurrer, determine as a matter of law the sufficiency of the facts averred to make out a case. On the other hand, appellee insists that the averments in the declaration to the effect that the insured met his death by “accidentally falling, etc.,” is an- averment of fact and not a conclusion of the pleader.

The author in Corpus Juris, vol. 1, at page 392, in discussing the subject of “accident” says: (sec. 4) “It has been said that the opposite of ‘accident’ is ‘design,’ ‘volition,’ ‘intent,’ and that in many of the definitions the idea of design is excluded, making the event wholly involuntary. Thus an accident is sometimes defined as something which takes place without any intelligent or apparent cause, without design, and of course, something out of the usual course of events, and which happens suddenly and unexpectedly, without any design on the part of the person injured; the happening of an event without the design and aid of a person and which is unforeseen; that which happens without one’s direct intention; a thing done or disaster caused or produced without design or intention.”

In Healey v. Mutual Acc. Ass’n, 133 Ill. 556, being a suit brought on an insurance policy where the charge was that the insured met his death by accidentally taking and drinking poison, the court at page 560 says: ‘ ‘ The question presented, although one of pleading, involves a construction of the policy upon which the action was brought, and in placing a construction on the contract and in arriving at the intention of the contracting parties, regard must be had to the object and purpose which were intended by the contracting parties. A policy of accidental insurance is issued and accepted for the purpose of furnishing indemnity against accidents, and death caused by accidental means, and the language of the policy must be construed with reference to the subject to which it is applied. (Rockford Ins. Co. v. Nelson, 65 Ill. 420.) Thus, a provision in a policy against loss by fire, avoiding the policy if the property becomes incumbered, has been held not to include incumbrance by judgment, although within the terms used. (Bailey v. Homestead, Fire Ins. Co., 80 N. Y. 21.) Again, policies of insurance being signed by the insurer, the language employed being that of the insurer, the provisions of the policy are usually construed most favorably for the insured in case of doubt or uncertainty in its terms. (Niagara Fire Ins. Co. v. Scammon, 100 Ill. 644.) ‘No rule in the interpretation of a policy is more fully established, or more imperative and controlling, than that which declares that in all cases it must be liberally construed in favor of the insured, so as not to defeat, without a plain necessity, his claim to the indemnity which, in making the insurance, it was his object to secure. When the words are, without violence, susceptible of two interpretations, that which will sustain his claim and cover the loss must, in preference, be adopted.’ Citing May on Insurance (2nd Ed.), sec. 175.

“Keeping in view these well-settled rules of construction, the question to be determined'is, whether the death in this case is one falling within the spirit of the policy.

“The death of John Healey, the assured, is a conceded fact; but it is said the policy is an assurance against death by external, violent and accidental means, and that death did not ensue from external, violent and accidental means, within the meaning of the policy. Under the averments of the first and second counts it is manifest that death ensued by accidental means, as it is expressly averred that death was produced by accidentally taking and drinking poison. The demurrer admits this averment of the declaration, and the fact that death ensued from accidental means stands admitted by the record. ’ ’

In Matthiessen & Hegeler Zinc Co. v. Industrial Board of Illinois, 284 Ill. 378, decided by the Supreme Court on June 20, 1918, speaking through Justice Cartwright at page 382 says: “The word ‘accident’ is not a technical legal term with a clearly defined meaning, and no legal definition has ever been given which has been found both exact and comprehensive as auplied to all circumstances. Different definitions are given, with a very full citation of cases, in 1 Corpus Juris 390. Anything that happens without design is commonly called an accident, and at least in the popular acceptation of the word any event which is unforeseen and not expected by the person to whom it happens is included in the term.

Where a policy is signed by the insurer alone and the language employed is that of the insurer, the provisions of the policy are ordinarily construed most favorably for the insured, in case of doubt or uncertainty in its terms. Healey v. Mutual Acc. Ass’n, supra; Anson v. New York Life Ins. Co., 252 Ill. 369-371; May on Insurance (2nd Ed.), sec. 175.

However we do not find in this case very much room for construction, for it follows in the common acceptation of the term that when a person falls, he falls without design, the averment of the declaration being that the insured “accidentally fell” and this averment is admitted by the demurrer.

We are of the opinion and so hold that the declaration as amended is clearly sufficient on demurrer to sustain the verdict and judgment. The judgment of the trial court will therefore be affirmed.

Judgment affirmed.

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


text:
    Carlie Dimmick, Plaintiff in Error, v. Aetna Insurance Company, Defendant in Error.
    1. Insubahce, § 226

      —when existence of other fire insurance avoids policy. A clause in a fire insurance policy, that it shall be null and void if at the time of loss there shall be other insurance covering the same risk, will prevent recovery where the property was insured in another company against fire and theft by a policy containing a covenant against other insurance on the same risks without the consent of the insurer, as the second policy is not declared void for breach of covenant and the risk is not the same.

      2. Insurance, § 120

      —when party not favored m construction of contract. In the absence of ambiguity in an insurance contract, neither party can be favored in its construction.
    3. Insurance—when other existing insurance avoiding fire policy shown. Proof of the existence of other insurance so as to void the first policy is sufficiently established, by the plaintiff herself introducing the second policy expressly covering the same risk.
    Error to the City Court of East St. Louis; the Hon. H. L. Browning, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed April 12, 1919.
    F. B. Hanna and M. Millard, for plaintiff in error.
    Maurice V. Joyce and Leahy, Saunders & Barth, for defendant in error.

      See Illinois Notes Digest, Vols. 51 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 Boggs

delivered the opinion of the court.

Suit was instituted in the City Court of Blast St. Louis by plaintiff in error, hereinafter called plaintiff, against defendant in error, hereinafter called defendant, to recover for a loss by fire of a Ford automobile under an insurance policy issued by defendant. At the close of plaintiff’s evidence, on motion of defendant, the court directed a verdict in favor of defendant and rendered judgment in bar of action and for costs.

The declaration consists of one count, being the ordinary assumpsit count for fire loss under an insurance policy. To said declaration defendant filed a plea of the general issue and a special plea averring that the fire insurance policy sued on, among other things, provided: “It is a condition of this policy that it shall be null and void, if at the time a loss occurs there be any other insurance covering against the risks assumed by this policy which would attach if this insurance had not been effected, ’ ’ and averring that at the time of the alleged loss sued for there existed other insurance covering the risk assumed by the policy sued on and that the second policy was issued without the consent, approval or knowledge of the defendant and contrary to the provisions of said policy. A replication was filed by plaintiff to the special plea alleging that she, plaintiff, did not have any other insurance on said automobile at the time it was destroyed and concluding to the country.

The record discloses that the policy sued on was issued on or about the 3rd day of July, 1917, and that thereafter on the 9th day of July, 1917, a policy of insurance was issued to plaintiff on said automobile by the Illinois Automobile Fire Insurance Exchange of Bloomington, Illinois. Said last-mentioned policy of insurance, in addition to insuring plaintiff against loss by fire, also insured her against loss by theft, robbery or “pilferage.”

"While other errors were assigned on the record, it is conceded by plaintiff in her brief that “the principal question is whether the issuing of the second policy rendered the policy here sued on void and would defeat a recovery.”

The Bloomington policy, being the second one issued, contains the following covenant: “It is hereby agreed by the insured that no other insurance covering against the risks assumed hereunder will be carried in any other Company or Association without the consent of the Exchange.” It is the contention of counsel for plaintiff that the covenant not to carry any other insurance covering the risks covered by the policy sued on rendered the Bloomington policy void and of no effect for the reason that plaintiff already had insurance on her automobile, namely, the policy issued by defendant, and that, by reason thereof, the conditions of the policy sued on against other insurance would not be violated.

It will be observed, on examination of the two policies, that the policy sued on contains a condition which if violated renders the policy null and void; whereas the provision in the second, or Bloomington, policy is no more than a covenant against taking other insurance, and no provision is made in this second policy in terms making the same void should the covenant be violated. It will also be observed with reference to the second, or Bloomington, policy that the provision with reference to taking other insurance is that the same shall not be taken on the risk assumed by said policy. As stated above, the Bloomington policy, in addition to covering loss by fire, also contains a clause insuring against loss by theft, robbery and pilfering, so that the two risks are not identical.

The record in this case discloses that the automobile had been stolen and after it was stolen it caught fire and burned, so that so far as the record discloses, plaintiff might have a right of action under the Bloomington policy for the loss of her automobile by theft. We are inclined to the opinion that in the absence of any showing that the Bloomington Company has not received notice of the policy issued by defendant, and the covenant in the second policy being one only against other insurance covering the same risks covered by that policy, it was not rendered void by reason of the fact of the policy issued by defendant to plaintiff, sued on in this case. If we are correct in this holding then it follows that the issuing of the Bloomington policy being a fire policy as well as theft and robbery policy, and covering the risks covered by the policy sued on, would, under the conditions above set forth, render the policy sued on null and void.

In Continental Ins. Co. v. Hulman & Cox, 92 Ill. 145, in a suit brought on an insurance policy containing a provision to the effect, “if the assured shall have, or shall hereafter make any other contract of insurance, whether valid or not, on the property hereby insured, or any part thereof, without the consent of the company written thereon, then, and in every such case, this policy shall become void.”

The record in that case discloses that after the making of the policy sued on, the insured applied for and obtained another policy of insurance from the Rockford Insurance Company, and the issue was raised as to whether or not the taking of the Rockford Insurance Company policy rendered void the policy sued on. The Supreme Court at page 153 says: “It was shown by the defendant that it had no knowledge of, and never consented to, this other insurance (Rockford Insurance Company policy).

“One of the defenses set up was, that the policy sued on had been made void by the other insurance in the Rockford Insurance Company. We are of the opinion that this defense was maintained.

“There was here another contract of insurance on. the property insured, made by the assured with the Rockford Insurance Company without the consent of the defendant written on the policy in suit, and it was an express condition of the policy that in every such case the policy sued on should become void.”

In the case of North British & Mercantile Ins. Co. v. Steiger, 13 Ill. App. 482, the court at page 484 says: “A second breach of the foregoing conditions of the policy sued on is said to consist in the fact that appellee had other insurance upon the same property, not indorsed upon nor permitted by it. The amount of other insurance permitted by this policy, as appears upon its face, was $1,500. The evidence very clearly shows that at the time it was issued, appellee had other insurance upon the same property to that amount at the least, and possibly more; that the same was subsequently renewed and increased to a much larger sum, and that it continued in force when so increased, until the time the building was destroyed. This was clearly in violation of the terms of the conditions of the policy and sufficient to avoid it, unless waived by appellant.” Citing Continental Ins. Co. v. Hulman & Cox, supra.

The language used in the condition against other insurance in the policy here sued on, making the policy null and void if other insurance is taken, is clear and unequivocal. Where there is no ambiguity in the terms of an insurance contract, neither party can be favored in its construction, and if the stipulations are such as the parties might lawfully make, it is the duty of the court to enforce them. Norwaysz v. Thuringia Ins. Co., 204 Ill. 334; Martin v. Illinois Commercial Men’s Ass’n, 195 Ill. App. 422.

We are therefore of the opinion and so hold that the policy taken out by plaintiff in the Bloomington Company was a violation of the condition against other insurance in the policy sued on, and rendered the policy null and void, inasmuch as there is nothing in the evidence tending to prove that defendant had any notice or consented to the taking out of the second policy.

It is urged by plaintiff that the defendant made no proof under its special plea that any other insurance had been taken out by plaintiff on her automobile. This proof was made by plaintiff herself, as the Bloomington policy was offered in evidence by her, and it therefore rendered unnecessary the making of the proof by the defendant. Continental Ins. Co. v. Hulman & Cox, supra.

Finding no reversible error in the judgment of the trial court, the same will be affirmed.

Judgment affirmed.


text:
    Walter B. Maulding, President of People’s Bank, Macedonia, Illinois, Appellant, v. Chester C. Sims. Walter B. Maulding, President, etc., v. Chester C. Sims and Sarah E. Sims, Appellees.
    1. Mortgages, § 182

      —rights of second mortgagee purchasing at foreclosure sale on taking assignment of first mortgage. A second mortgagee who purchases on foreclosure of his mortgage and takes a master’s certificate, and later a deed, cannot take an assignment of the first mortgage debt and enforce it personally against the original owner and mortgagor.
    2. Mortgages, § 602

      —what are rights of purchaser at foreclosure sale as to enforcing prior liens. A purchaser under foreclosure of a real estate mortgage buys the property subject to prior liens of record, and has no right to enforce them himself or to have them enforced in a personal action against the original debtor.
    3. Mortgages, § 180

      —when first and second mortgages merged. The purchase of a first mortgage and note secured thereby by the purchaser and owner of the land under foreclosure of the second mortgage operates as a merger so as to bar personal action against the original mortgagor.
    Appeal from the Circuit Court of Hamilton county; the Him. Julius C. Keen, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed April 12, 1919.
    J. H. Lane and Creighton & Thomas, for appellant.
    John M. Eckley and H. Anderson, for appellees.

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

   Mr. Justice Boggs

delivered the opinion of the court.

By stipulation the above two cases were consolidated and tried as one case. The facts in the two cases are identical except as to parties, dates and amounts.

The two suits were brought by appellant in assumpsit, as assignee of two promissory notes, one dated October 18, 1905, executed by Chester C. Sims for $250, payable 3 years after date to the trustees of schools for Town Six (6), Range Five (5) in Hamilton County, and the other note, dated September 30, 1904, was executed by Chester C. and Sarah E. Sims for $250, payable 3 years after date to John H. Wilson. Both of said notes were secured by mortgages of even date with said notes respectively, and were duly filed for record and were recorded in Hamilton county.

On February 21, 1913, appellee Chester C. Sims became indebted to appellant in the sum of $2,237.13, and executed his note in that amount to appellant and also a mortgage to secure the same which covered the lands formerly mortgaged to said trustees aforesaid, and other lands. This note not having been paid, appellant, on March 4, 1914, obtained a decree of foreclosure against lands of appellee, including the 40-acre tract mortgaged to said trustees aforesaid, and which the record showed was unsatisfied. The master in chancery sold all this land so mortgaged to appellant for the amount of his mortgage, interest and costs, and afterwards executed a master’s deed to appellant for said premises.

Afterwards, on or about December 15, 1914, appellant purchased from said trustees the note of appellees and took an assignment of the mortgage securing the same, thereby becoming the owner of both the certificate of purchase for the mortgaged premises, and the note and mortgage on the 40-acre tract. Both were held by appellant until the period of redemption from said sale had expired, and on August 15,1915, received a master’s deed for all of said premises.

The gist of the defense to the suits at bar is: that having purchased the mortgaged premises at foreclosure sale, taking a certificate of purchase therefor and while holding the same, becoming the owner of the notes and mortgages respectively given to Wilson and said trustees and having taken assignments thereof and thereafter having received a conveyance of said premises by master’s deed, that a merger in law was effected, which operated as a satisfaction of said notes.

The declaration in each case is in the usual form, containing one count on the note sued on and the consolidated common counts. The general' issue and three special pleas were filed to each of said declarations. A demurrer was interposed to the three special pleas and was sustained as to the second and third pleas and overruled as to the fourth. Eeplications were filed to the fourth plea in each case, to which defendants demurred. The demurrers being sustained, by leave of court amended replications were filed and the court having sustained demurrers thereto, appellant elected to stand by his replications. The court thereupon gave judgment for defendants respectively for costs upon the fourth plea. Said cause was then tried upon the declaration and plea of the general issue. After the evidence was in, appellant entered a motion for a directed verdict in his favor for the amounts shown to be due on notes, and appellees respectively entered motions for a directed verdict in their favor. The court denied the motion of appellant and allowed appellees’ motion, rendered judgment against appellant in bar of action and for costs.

The principal question raised by the error assigned on the record is as to whether the indebtedness covered by the mortgage to the trustees of schools and the mortgage to Wilson became merged upon appellant receiving the conveyance from the master in chancery. In other words, did the estate created by the mortgages covering the two notes here sued on merge with the estate received by appellant from the master in chancery, and did the indebtedness here sued on become merged or wiped out at that time.

In Belleville Savings Bank v. Reis, 136 Ill. 242, the Supreme Court in discussing this question says: “It is not denied, that the purchase by the appellant of the property under the state of facts above set forth would operate in equity as a payment or extinguishment of the debt secured by the mortgage, if the certificate of purchase had been surrendered and a master’s deed had been executed. When one, who is absolutely entitled in his own right to a charge or incumbrance upon land, becomes the owner in fee of the same land, with no intervening interest or lien, the charge will at law merge in the ownership and cease to exist. Under like circumstances a merger will take place in equity where no intention to prevent it has been expressed, and none is implied from the circumstances and the interests of the party. (2 Pomeroy’s Eq. Jur., sec. 790.) The premises in such case become the primary fund for the payment of the mortgage, and whoever acquires that fund and the mortgage also must be regarded as having applied the fund to the payment of the mortgage. (Lilly v. Palmer, 51 Ill. 331; Jones on Mortgages, sec. 865.) The indebtedness will be presumed to have been discharged so soon as the holder of it becomes invested with the title to the land upon which it is charged, ‘on the principle that a party may not sue himself at law or in equity.’ ‘The purchaser is presumed to have bought the land at its value less the amount of indebtedness secured thereon, and equity will not permit him to hold the land and still collect the debt from the mortgagor. ’ (Biggins v. Brockman, 63 Ill. 316; Weiner v. Heintz, 17 Ill. 259; Shinn v. Fredericks, 56 Ill. 439.) ”

The fourth plea in this case sets up the giving of the notes sued on in this case and the mortgage securing the same,—the giving of the note of $2,237.13 to appellant with the mortgage securing the same,—the foreclosure of said mortgage, and the purchase of the premises mortgaged at master’s sale, for debt, interest and costs, and the assignment of the note sued on in this case, together with the mortgage securing the same to appellant. The replication to said plea, to which a demurrer was sustained, charges among other things: “that the amount of the said note * * # was not included in the sale of said land * * * and that plaintiff paid * * * the then full, fair cash market value of the said land * * * and that, at the time plaintiff purchased said land at said master’s sale, said note was long past due and plaintiff did not know it was unpaid and did not include the amount due thereon in Ms Md for said land at said sale and did not purchase said land subject to the amount due on said note; * * * and in order to save the expense and costs of such proceedings plaintiff thereupon on, to-wit, December 15,1914, purchased the said note # * * for a valuable consideration,” prays judgment, etc.

It is the contention of appellant that at the time of the purchase by him of said premises he did not know that the notes here sued on were outstanding and unpaid, and that in order to protect himself from a foreclosure on said mortgages he purchased said notes and took an assignment of the mortgages securing them, and that by reason of his allegation of lack of knowledge that the notes had not been paid and that he had paid fuff value for said premises, he is entitled to maintain his suits herein. The mortgages securing the notes sued on were filed for record in Hamilton county and were of record on February 21, 1913, the time appellant took the mortgage securing the note of $2,237.13, so he must have known at that time that these mortgages were then existing. It was his business to advise himself at that time as to whether or not these notes had been paid, and the failure to do so cannot'avail him. Campbell v. Carter, 14 Ill. 291; Gallaher v. Herbert, 117 Ill. 160; Lanphier v. Desmond, 187 Ill. 370; O’Connor v. Mahoney, 159 Ill. 69.

In Campbell v. Carter, supra, the court at page 291 says: ‘‘The fact that Farwell had no actual knowledge of the bank judgments forms no basis for equitable relief. He had constructive notice of their existence, and that bound him as effectually as would express notice. He must be deemed to have acted upon full knowledge of those judgments. It was his own fault if he did not obtain the information before concluding the arrangement. He acted upon a misapprehension of his legal rights, and not upon a mistake of facts.”

In Gallaher v. Herbert, supra, the court says: “The appellants took whatever rights they may have, with notice, by the record of the deed, of all its reservations in favor of the appellee.” Citing Willis v. Gay, 48 Tex. 463, 26 Am. Rep. 328.

In O’Connor v. Mahoney, supra, the court at page 77 says: “But, outside of this source of information, O’Connor was bound to take notice of all the facts suggested by the record of title, the physical condition and occupancy of the property, and doing so he had information enough to prompt him to such further reasonable inquiry as, if made, would have advised him of the equities complainants now assert.” Citing McVey v. McQuality, 97 Ill. 93.

Neither do we believe that appellant is in a position to urge his claim that he paid the full value of this land free and clear of the mortgages securing the notes here sued on, for it is not averred in his replication that in the mortgage given by appellee to secure the note of $2,237.13 there was a covenant that he was seized of the premises in fee simple free and clear of all incumbrances. The conclusion would therefore follow that appellee Sims only mortgaged his equity of redemption, as that would be all he had a right to mortgage, and when appellant foreclosed the same, that is all he could foreclose and sell. To allow appellant to enforce the payment of the notes here sued on would in effect be to vest in appellant the fee simple title to the premises involved clear of the mortgage indebtedness that existed against the same at the time he received his mortgage, and at the time he foreclosed the same. There is no reason either in law or in equity, so far as we can see, why he should be entitled to this advantage.

In Donk Bros. & Co. v. St. Louis Glucose & Grape Sugar Co., 17 Ill. App. 369, this court in discussing a question of a similar character at page 375 says: “Purchasing the property in this manner, it became in the hands of appellant company the primary fund between all the parties out of which these liens should be discharged (Comstock v. Hitt, 37 Ill. 542; Fowler v. Fay, 62 Ill. 375), as fully as though the grantee had assumed their payment in the deed, this latter assumption by a grantee not having any greater effect tq subject the property to such payment than the former, but giving to the lien holder a personal action against the grantee. 1 Jones on Mortgages, sec. 736; Sweetzer v. Jones, 35 Vt. 317.

“In either case, the company, in order to become invested with the entire estate in the property, must see to it that the incumbrances are discharged, and as between it and its vendor, the primary duty was cast upon it to do so (Shuler v. Hardin, 25 Ind. 386); and it is said in Cherry v. Monro, 2 Barb. Ch. (N. Y.) 618, where the equity of redemption was purchased subject to an outstanding mortgage, that the purchaser had no legal right to have the mortgage debt 'charged upon the mortgagor personally instead of charging it upon the land upon which it was charged by the mortgage.

“The purchaser of an equity of redemption subject to existing liens is only entitled to what he purchases, and while he may not be personally liable for their payment as he has not promised to pay them, it is his duty to pay them or surrender the property in their discharge; and to allow him to compel his grantor to discharge the incumbrance on the ground of a personal liability for the debt would in effect invest him with the entire estate free from all liens when he took it specially charged therewith. The injustice of such a proceeding is so apparent that courts of equity in cases where the lien creditor has enforced payment of the debt thus charged upon the land from the mortgagor have not hesitated to subrogate him to all the rights of the creditor by considering him as the equitable assignee of the mortgage lien, and thus permit him to subject the premises to sale to reimburse him for such payment. * * *

“A grantee, therefore, under such a sale to him, cannot, by paying the lien creditor the amount of the incumbrance, take an assignment of the debt to himself and hold it as a valid claim against his grantor, nor use it as a set-off in an action by the vendor for the purchase money * * *; and having become the owner of the lien and, as between him and his vendor, the primary obligation, if he would save his purchase, resting upon him to pay the debt the law treats the assignment to himself as a payment of the debt and the land discharged therefrom. Converse v. Cook, 8 Vt. 164; Lilly v. Palmer, 51 Ill. 331.”

This case was appealed to the Supreme Court and was affirmed in 117 Ill. at page 330, and in discussing this feature of the case, at page 337 says: “And hence, when the appellant company, after it became the owner, subject to these attachments, of all the property attached except that which had been sold as perishable, purchased and became the assignee of the Donk judgment, it occupied, to the extent of the amount of that judgment, the position of both debtor and creditor, and in such cases there is a merger of the qualities of debtor and creditor, extinguishing both. Abbott, in his law Dictionary, vol. 3, title, ‘Merger,’ says:. ‘Merger is the equivalent of confusion in the Roman law, and (when used with reference to demands) indicates that where the qualities of debtor and creditor become united in the same individual, there arises a confusion of rights which extinguishes both qualities; whence, also, merger is often called extinguishment. ’ ”

In Lilly v. Palmer, 51 Ill. 331, the Supreme Court at page 332 in discussing the question of merger says: “The status of the plaintiff then, was this: By the conveyance from Backer, and from Hall, the first mortgagee, the estates of both mortgagor and mortgagee become vested in him. The deed from Palmer to Backer made the land the primary fund for the payment of the notes to Hall, of which the note in suit was one, and when the plaintiff took the deed from Backer, he became the owner of that fund, and he then stood in the attitude of a mortgagee who had effected a strict foreclosure.”

These last-mentioned cases are all law cases and we think are directly in point, and if the doctrine laid down in these cases is the correct one, there can be no right of recovery in the cases here involved. So far as the record discloses, appellant purchased at the foreclosure sale the premises covered by the mortgage to him, subject to the mortgage indebtedness to the trustee of schools and Wilson. After the sale to him, appellant took an assignment of the notes and these mortgages, and in law it amounted to a payment therefor, it being a matter of indifference whether the indebtedness be paid directly, or whether an assignment is taken to the person who holds the fee.

For the reasons above set forth the judgment of the trial court will be affirmed.

Judgment affirmed.