author: Mr. Justice Niehaus

text:
    Henry E. Rosene, Trustee, and Howard C. Wade (Complainants), Appellants, v. Carl G. Murphy and Maude Murphy, Appellees. W. R. Hidy, Intervening Petitioner, Appellee, v. Henry E. Rosene, Trustee et al., Defendants.
    Gen. No. 8,590.

      Heard in this court a,t the October term, 1931.
    Opinion filed October 17, 1932.
    Boyer & Leonard and McKinney, Lynde & Grear, for appellants.
    Dobbins & Dobbins, for appellee W. R. Hidy.

      Busch & Harrington, for appellees Carl G. Murphy and Maude Murphy; C. E. Tate, of counsel.
   Mr. Justice Niehaus

delivered the opinion of the court.

The appellants, Henry Rosene, as trustee, and Howard C. Wade, as complainants, filed a bill in equity in the circuit court of Champaign county to foreclose a trust deed. The bill alleges that Carl G. Murphy and Maude Murphy, his wife, defendants, being indebted in the sum of $7,764.04, made, executed and delivered their three promissory notes payable to bearer and payable at the oEce of W. R. Hidy in Champaign, Illinois, or at such other place as the legal holder thereof might from time to time in writing appoint; and that the appellant, Howard C. Wade, has possession of and is the legal owner and holder of the notes mentioned; and that Carl G. Murphy and Maude Murphy on August 30, 1928, had conveyed to Henry E. Rosene as trustee certain real estate described to secure the payment of principal and interest of said notes; that the said Carl G. Murphy and Maude Murphy agreed to pay the indebtedness secured by the trust deed and evidenced by the notes to the said trustee at the oEce of W. R. Hidy, or such other place as might be designated from time to time on or before the 30th day of each and every month in payments of $86.36; that the said trust deed did not by its terms relieve the said Carl G. Murphy and Maude Murphy of their duty to see to the application of said trust funds by the said trustee; that the trust” deed provided that in a case of default in making the monthly payments as provided therein the whole principal sum secured thereby would become immediately due and payable without notice; that upon such default the holder of the said notes, or the trustee for the benefit of the holder of the notes, would have the right to foreclose said trust deed; that the said Carl G. Murphy and Maude Murphy have failed to pay the sums specified to be paid in said notes and trust deed to the trustee or to the legal holder of the said notes; that Henry E. Bosene, trustee, has never received any monthly payments on account of said notes; further alleged upon information and belief that if the said Carl G. Murphy and Maude Murphy had made certain monthly payments to W; B. Hidy at his office in Champaign, such payments were made with the full knowledge that W. B. Hidy would appropriate the same to his own use and would not pay them over to the trustee, and that in violation of their duty to see to the application of the funds paid by them to such trustee and for the purpose of defrauding the owner and holder of said notes, the said Carl G. Murphy and Maude Murphy entered into a conspiracy with the said W. B. Hidy by which it was agreed that the said Murphys make such payments to said Hidy in order that he might appropriate them to his own use and deprive the said trustee and the owner of the notes of the benefit of such funds. It is further alleged that upon being informed that certain payments had been made to Hidy, by Carl G. Murphy and Maude Murphy, Howard C. Wade as the legal holder of the notes payable to bearer executed a notice in writing changing the place of payment from the office of W. B. Hidy in the City of Champaign to the office of McKinney, Lynde & Grear, attorneys for Howard C. Wade, at 105 W. Adams street, Chicago, Illinois; that said written notice was served upon said Murphys on March 22, A. D. 1929, but that they persisted in their refusal and failure to make any payments whatsoever on account of said notes in accordance with the terms thereof and of said trust deed.

In a joint answer of the defendants, Carl G. Murphy and Maude Murphy, the defendants, deny that they were indebted in the sum of $7,764.04 and admit that they were indebted in the sum of $6,800 and aver that at the time of the payment of said $6,800 a commission of $219.75, was exacted from them; allege that they applied to W. R. Hidy, an insurance broker and money loaner in Champaign, for a loan of $6,800 on the premises described in the bill of complaint, and that they were informed by the said W. R. Hidy that he could make the loan for them as a representative of some persons then unknown to the defendants. Further answering, defendants state that they executed the trust deed and the three notes referred to in the bill of complaint; that they had no experience in the execution of a mortgage and understood that the notes for $433.16 and $530.88 were interest coupon notes; that the defendants received no consideration for the two notes above referred to and received $6,800 for the execution of all of said notes; that out of the $6,800 the defendants paid W. R. Hidy a commission of $219.75; that the transaction was usurious and that if the complainants are entitled to any relief they are not entitled to any interest upon the notes, and not entitled to any more money than was actually paid to the defendants, excepting a reasonable commission. Further answering, defendants state they paid each month at the office of W. R. Hidy the sum of $86.36 from the date of the execution of the mortgage up to and including the date of the filing of the answer; that they are not in default in the payments of monthly instalments, and defendants deny that the complainants in the bill are entitled to the relief prayed for.

Thereafter an order was entered in the cause giving W. R. Hidy leave to file an intervening petition, and an intervening petition was thereupon filed. The1 intervening petition of W. R. Hidy states that Hidy is in the insurance and real estate loan business; that the United States Mortgage Bond Company and United States Trust Company are corporations engaged in the business of loaning money on real estate and of purchasing real estate loans and carry on a portion of their -business in the City of Chicago, State of Illinois, through their duly authorized agents and representatives; that Henry E. Rosene, trustee, is in the employ of the United States Mortgage Bond Company, and that Harold C. Wade resides in the City of Detroit ; that on the 30th of August and prior thereto the United States Mortgage Bond Company and the United States Trust Company were engaged in the, above business in Illinois through duly authorized agents and representatives, Herald, Broms & Co., a corporation, which maintained its offices at 29 South LaSalle street; that on August 30, 1928, the defendants were desirous of purchasing real estate described in the bill of complaint; that there was a mortgage on the real estate from Frank Fleming, the vendor of the premises; that the Murphys agreed to convey said premises owned by them and to pay Frank Fleming the sum of $6,800 out of which payment the incumbrances on the premises so purchased by the Murphys was to be paid and the mortgage released; that in order to make the exchange and purchase, it was necessary for the Murphys to procure a loan and secure said loan by mortgage or trust deed on the said premises to be purchased by them from Fleming; that Herald, Broms & Co., a corporation, and duly authorized agent and representative of United States Mortgage Bond Company, on the first day of September, as the agent and representative thereof and in furtherance of the business of said company, represented to the petitioner that Herald, Broms & Co. was engaged in the business of securing loans for said corporation and represented that they would purchase loans secured by your petitioner provided said loans complied with the requirements of said company; that Herald, Broms & Co. forwarded to the petitioner blank forms and instructions for loans prepared by the United States Mortgage Bond Company for the purpose of assisting Hidy in preparing loans acceptable to the United States Mortgage Bond Company, among which plans of the United States Mortgage Bond Company it was provided that Hidy was to procure an abstract of title to the premises on which the loan was to be secured showing the premises free and clear, together with an opinion of an attorney and an application for a guaranty of title on a form provided and acceptable to the New York Title and Mortgage Company in order to procure a mortgage guaranty policy; that Hidy examined the loan plans and instructions to meet the requirements of the United States Mortgage Bond Company; that the plans were prepared by George Barnett, a representative and agent of United States Mortgage Bond Company and Herald, Broms & Co.; that Hidy recommended and induced the Murphys to make application for Plan No. 9; that the loan was prepared according to plans which had been prepared and furnished by Herald, Broms & Co. and the United States Mortgage Bond Company as one of the plans acceptable to the United States Mortgage Bond Company; that according to the plan it was required that the Murphys sign an application for the loan on a blank prepared by the said complainant which was signed and forwarded by Hidy to Herald, Broms & Co., who forwarded it to United States Mortgage Bond Company, who objected to certain features. Hidy then induced the Murphys to accept another plan and execute a new application which was submitted to the United States Mortgage Bond Company and accepted by it. Hidy was instructed by the United States Mortgage Bond Company to execute a loan agreement and trust deed conveying the premises to Henry E. Rosene, trustee, and also notes for the sum of $7,764.04 payable in monthly instalments; that the Murphys were to receive $6,800; that the difference between the face of the notes and the net amount was represented to be for commissions for the making of said, loan; that the United States Mortgage Bond Company and its agent required that the Murphys sign an application for a New York Title and Mortgage Company mortgage policy and also to procure the said title insurance; required that Hidy get an opinion of title showing title free and clear in the Murphys and. procure an appraisement, all of which were procured for the United States Mortgage Bond Company by Hidy; that in order to procure the Murphys to sign the said application and to procure an opinion of title satisfactory to the United States Mortgage Bond Company, Hidy advanced to the Murphys from his own funds $6,800 to be used in paying off the incumbrances. It was understood and agreed that this sum was to, be repaid to this petitioner by the Murphys out of the loan being made on the premises by the United States Mortgage Bond Company; that the said mortgage is the same mortgage set out in the bill; that on September 1, 1928, Hidy forwarded trust deed, notes, abstract of title, opinion of attorney, and application for title guaranty to the said Herald, Broms & Co., agent as aforesaid; that Herald, Broms & Co. turned them over to the United States Mortgage Bond Company, who in turn delivered them to the United States Trust Company, who undertook and agreed to complete the loan to the Murphys; that neither United States Mortgage Bond Company nor the United States Trust Company nor anyone in their behalf ever paid $6,800' to the Murphys or any part thereof, but that the United States Mortgage Bond Company turned over notes, etc. to the United States Trust Company, who delivered to its agent, Herald, Broms & Co., the $6,800; that Herald, Broms & Co. then converted that sum of money to their own use; that the United States Mortgage Bond Company and United States Trust Company have converted the said trust deed and notes to their own use without paying the Murphys any money and without any consideration being given; that the documents were delivered by the Murphys to Hidy on account of the fact that Hidy advanced $6,800 to them; that Hidy has not been reimbursed by the Murphys; that Hidy has demanded of United States Mortgage Bond Company and United States Trust Company that they deliver $6,800 or return to Hidy the notes, trust deed and other papers; that they have not complied but claim they have sold and delivered the papers to Howard C. Wade notwithstanding they had full notice of all facts; that Howard C. Wade is now making claim of ownership, notwithstanding they were obtained by fraud and circumvention and given without any consideration and were not negotiable securities.

The petition prays for the following relief:

(1) That the complainants and the defendants should be directed to return the documents and papers or to pay the petitioner $6,800 with interest.

(2) That the complainants and their agents or assigns be enjoined from selling or disposing of the trust deed and notes;

(3) That Hidy should be subrogated to all the rights of the holders of said notes and to the lien of the mortgage upon said premises.

Afterwards, by leave of court, an amendment was made to the intervening petition, the amendment being to insert toward the end of paragraph 5 of the original intervening petition:

"That the Murphys requested Hidy to advance money to pay off the mortgage on the premises; that Hidy borrowed $6,800 from the First National Bank of Champaign and did pay off said incumbrances, it being then and there understood that while said mortgage was to be released of record Hidy was to hold the lien of the mortgage until he should be repaid with funds to be derived from the mortgage to be procured from the United States Mortgage Bond Company; that the notes and mortgage were to be executed to a trustee and turned over to Hidy to be delivered to the United States Mortgage Bond Company, and that the funds derived from the loan to be made by the United States Mortgage Bond Company were to be paid to Hidy to repay him for moneys advanced to take up the prior mortgage, by reason of which Hidy was subrogated to the lien of said prior mortgage ahead of and prior to any lien of said mortgage of the United States Mortgage Bond Company.
“That the mortgage and trust deed of the United States Mortgage Bond Company are the same as set up in the original bill; that Hidy advanced $6,800 to take up the original mortgage and received the trust deed, mortgage and notes from the Murphys and forwarded them to the United States Mortgage Bond Company through their agents, the said Herald, Broms & Co., and that neither the United States Mortgage Bond Company nor anyone for them have ever paid to the petitioner or to the Murphys $6,800 or any part thereof, but on the contrary turned over to its own agent the sum of $6,800. ’ ’

And petitioner amended the prayer for relief as follows: “That Hidy be subrogated to the lien of said prior mortgage; that the said prior mortgage be declared a subsisting lien prior to that of Howard C. Wade and Henry E. Rosene, trustee; that in the alternative if the trust deed be held valid, then the said defendants may be required to deliver $6,800 with interest to Hidy and in the event of their failure that they be enjoined from disposing of said notes and trust deed; that Hidy be subrogated to the rights of the holder to a lien upon the premises to secure the payment of $6,800 with interest.”

When the cause was at issue, it was referred to the master in chancery on the original bill and answer thereto, and the. intervening petition and answers thereto. The master heard the evidence presented by the respective parties, arid made his report finding that the equities in the cause were with the defendants, Carl G. and Maude Murphy; and that the bill of complaint should be dismissed for want of equity. Numerous objections were filed to the master’s report, which were allowed, by the order of the court, to stand as exceptions. The exceptions, upon a hearing by the court, were overruled; and in its decree the court finds that the equities in the cause are with the defendants, Carl G. Murphy and Maude Murphy and the intervening petitioner, W. R. Hidy, and that the original bill filed by the complainant should be dismissed for want of equity. In its decree the court finds the facts substantially as set forth in the intervening petition of W. R. Hidy. During the hearing of the cause the intervening petitioner, W. R. Hidy, deceased, and his widow, as executrix of his estate, was substituted as party complainant in the intervening petition. In the •decree the court finds the following facts:

“That the United States Mortgage Bond Company, of Detroit, Michigan, was a corporation with its principal place of residence in the City of Detroit, and State of Michigan, and was engaged in the business of loaning money upon' real estate and of purchasing real estate loans on real estate located in the State of Illinois and elsewhere. That Herald, Broms & Co. was a corporation maintaining offices in the City of Chicago, State of Illinois, and was the duly authorized agent and representative of the said United States Mortgage Bond Company of Detroit, Michigan, and as such agent made mortgage loans on real estate in the State of Illinois and elsewhere for and on behalf of the said United States Mortgage Bond Company aforesaid.
“That the said Herald, Broms &. Company represented to the said Hidy that it would make loans secured by real estate provided the same complied with the rules of the said Herald, Broms & Company, and thereupon the said Herald, Broms & Company forwarded to the said Hidy certain blank applications to be used for the negotiation of a loan to be made to the said Carl 0. Murphy and Maude Murphy; that thereupon the necessary application blanks were duly prepared and executed by which application was made for a loan of $7,000.00 on the premises hereinabove described, and said application was forwarded to the said Herald, Broms & Company, and which application was by Herald, Broms & Company then forwarded to the United States Mortgage Bond Company for its approval. That said application for a loan of $7,000.00 was not accepted by the said United States Mortgage Bond Company, but a loan was finally approved by said United States Mortgage Bond Company in the principal sum of $6,800.00 and which provided for monthly payments of $86.36 for each and every month for a period of ten years.
“The court further finds that thereupon the necessary blank principal notes and trust deed were prepared and forwarded to the said Hidy for execution by the said Carl Gr. Murphy and Maude Murphy, and the said Carl Gr. Murphy and Maude Murphy thereupon executed principal note for $6,800, dated August 30, A. D. 1928, payable to bearer in twenty (20) semi-annual installments as therein provided and bearing interest at' six per cent per annum; and did also execute Subordinate Note B of the same date in the sum of $433.16, payable to bearer in three (3) semiannual installments as therein provided; and did also execute Subordinate Note C of the same date, in the sum of $630.88, payable to bearer in four (4) semiannual payments as therein provided, all of said notes payable at the office of W. R. Hidy, or at such other place as the legal holder thereof may frdm time to time in writing appoint, all of said installments as provided in said notes to bear interest after maturity at the rate of seven per cent per annum, the aggregate of said Principal Note and Subordinate Notes B and C being $7,764.04.
“That to secure said notes aforesaid, aggregating $7,764.04, the said Carl G. Murphy and Maude Murphy executed a certain trust deed or mortgage in and by which they conveyed, mortgaged and warranted to the complainant Henry E. Bosene, Trustee, of Detroit, Michigan, the real estate hereinabove described, and which said notes and trust deed were by the said W. B. Hidy forwarded to Herald, Broms & Company of Chicago, and were by Herald, Broms & Company forwarded to the United States Mortgage Bond Company of Detroit, Michigan, and the said United States Mortgage Bond Company thereupon issued its check, dated October 16, 1928, payable to Griswold First State Bank of Detroit, Michigan, for $6,800.00, for the purpose of wiring deposit to the Garfield State Bank, Chicago, Illinois, to be credited to the construction account of its representative and agent Herald, Broms & Company, which check was given for the purpose of advancing the amount of the loan so made to the said Carl G. Murphy and Maude Murphy.
‘1 The court further finds that the complainant, Henry E. Bosene, named as trustee in the trust deed aforementioned, was the secretary or assistant secretary and stockholder of said. United States Mortgage Bond Company of Detroit, Michigan, and was secretary of the Complainant Howard C. Wade, and that the said Howard C. Wade was the president, director and stockholder of said United States Mortgage Bond Company of Detroit, Michigan.
“That upon receipt of the'funds aggregating $6,800 by Herald, Broms & Company from United States Mortgage Bond Company, the said Herald, Broms & Company, agents of the said United States Mortgage Bond Company, converted said funds to its own use and failed and refused to transmit said sum to the defendants, Carl Gr. Murphy and Maude Murphy, or to said W. B. Hidy for them, and that the said Carl Gr. Murphy and Maude Murphy have not received any consideration for the signing of said notes and trust deed aforesaid from said United States Mortgage Bond Company, Herald, Broms & Company or Howard C. Wade, and neither has the said W. B. Hidy received any consideration whatsoever from the said Herald, Broms & Company or from the United States Mortgage Bond Company or from the said Howard C. Wade, or either of them, for the turning over and delivery of the said mortgage and notes to them or either of them.
“The court further finds that at the time the said, Carl Gr. Murphy and Maude Murphy made application for said loan to the said Herald, Broms & Company said above described premises were subject to the lien of a certain mortgage to the Champaign Loan and Building Association, of Champaign, Illinois, for the sum of $6,665.70, and in order to procure the new loan so requested by the said Carl Gr. Murphy and Maude Murphy from Herald, Broms & Company, it became necessary that said mortgage to the Champaign Loan and Building Association be paid and satisfied and released of record, and that thereupon at the request of the said Carl Gr. Murphy and Maude Murphy, the intervening petitioner, W. B. Hidy, advanced the sum of $6,665.70 to pay off said mortgage to the Champaign Loan and Building Association and procured the release of said mortgage from the Champaign Loan and Building Association, and placed the same of record in Champaign County, Illinois, retaining the release thereof as evidence of the payment so made him aforesaid, which payment so made by the said W. B. Hidy aforesaid was made with the understanding and agreement on the part of the said Carl Gr. Mnrphy and Maude Murphy that upon receipt by them of the proceeds of said loan so made through the said Herald, Broms & Company, that they would reimburse the said W. B. Hidy the amount so advanced by him as aforesaid.
‘ ‘ The court further finds that in addition to the payment aforesaid of $6,665.70, the said W. B. Hidy paid to the said Murphys the sum of $134.30, which sum together with the $6,665.70 was to be repaid to the said Hidy by the said Murphys from the proceeds of said loan.
“The court further finds that the principal amount of said loan was $6,800.00 and according to the application and plan of the same the said trust deed provided for a monthly payment of $86.36 for each and every month for the period of ten years, at which time said principal note of $6,800.00 and subordinate notes B and C, and all interest thereon, would be fully paid according to the terms thereof. That subsequent to the execution of said notes and trust deed aforesaid said defendants Carl Gr. Murphy and Maude Murphy made six monthly payments of $86.36 each to the said W. B. Hidy at his office as in said notes provided, and that after the institution of this suit the said Carl Gr. Murphy and Maude Murphy tendered said monthly installments into court and paid said monthly installments falling due on said loan to the Clerk of the Circuit Court of Champaign County, Illinois, and that they, the said Carl G-. Murphy and Maude Murphy, have not made default in the monthly installments as provided in the said notes and trust deed.
“The court Iurther finds that by reason of the said W. B. Hidy, at the request of the said Carl Gr. Murphy and Maude Murphy, advancing the necessary funds to pay off and satisfy the lien of said mortgage to the Champaign Loan and Building Association aforesaid, and with the understanding and agreement that from the proceeds of the loan so to be made to the said Carl G-. Mnrphy and Maude Murphy as aforesaid they were to reimburse the said W. B. Hidy for the amount so advanced by him as aforesaid, to pay said mortgage and for the balance of said $6,800.00 so paid to the said Murphys, the said Executrix of the last will and testament of the said W. B. Hidy is entitled to receive from the proceeds of said loan the sum of $6,800.00 with 6 per cent interest thereon from September 1,1928.
“It is therefore ordered, adjudged and decreed that the said Howard C. Wade, within twenty days from this date, pay to the Executrix of the last will and testament of the said W. B. Hidy, Deceased, or to her attorneys in this cause, the said sum of $6,800.00 with six per cent interest from September 1, 1928, until paid, and thereupon said notes and trust deed shall be delivered to the said Howard C. Wade, and upon such payment being made the said Executrix of the last will and testament of W. B. Hidy, Deceased, and the Clerk of this Court are ordered to pay to the said Howard C. Wade all of said monthly installments so received by them and the said W. B. Hidy, respectively from the Murphys, and credit shall thereupon be given the said Murphys upon said notes for all of said monthly installments, and further, that in the event the said Howard C. Wade shall fail to make said payment within the time specified that then the said Master in Chancery of this court is directed to deliver to said Executrix of the last will and testament of the said W. B. Hidy, Deceased, or to her attorneys in this cause, the said principal note for $6,800.00 and subordinate notes B and C and said trust deed securing the same; that the clerk of this court is in said event ordered to pay to the said Executrix of the last will and testament of said W. B. Hidy, Deceased, or to her attorneys in this cause, said monthly installments so received by him from the said Murphys, and that said Executrix immediately give credit to the said Murphys for said monthly installments so made to said W. R. Hidy and the Clerk of this Court, and that said Executrix hold said notes and trust deed free and clear of any right, title or interest therein on the part of the said Howard C. Wade.”

This appeal is prosecuted for reversal of the decree ; and the appellants rely upon the following errors for reversal of the decree:

The circuit court erred in holding that the defendants, Carl G-. Murphy and Maude Murphy, were not in default under the terms and provisions of the notes and trust deed.

The circuit court erred in allowing the intervening petition to be filed, and such petition should havé been dismissed because it was not pertinent to the issues formed by the bill and answer.

The circuit court erred in finding that Herald, Broms & Co. was the agent of the United States Mortgage Bond Company, with authority to make loans and disburse the proceeds thereof.

The circuit court erred in admitting evidence of supposed relationship and business transactions between United States Mortgage Bond Company and Herald, Broms & Co. of which the intervening petitioner had no knowledge at the time of the transactions alleged in the intervening petition.

The trial court erred in failing to find that Herald, Broms & Co. was the agent of W. R. Hidy to receive the proceeds of the sale of the notes and trust deed.

Concerning the alleged error of the court in admitting in evidence letter and correspondence passing between Herald, Broms & Co. and the United States Mortgage Bond Company of which the appellant, Howard C. Wade, was a director and president, and the appellant, Henry Rosene, the trustee in the trust deed, also a director, we deem it sufficient to say that the evidence referred to was properly admitted because it tended to prove the main controverted questions of fact in the case, namely, that Herald, Broms & Co. was the agent of the United States Mortgage Bond Company in making the loan to secure which the promissory notes and trust deed were executed and delivered by Carl G-. Murphy and Maude Murphy; and that Wade and Rosene, as directors and officers of the Mortgage Bond Company, are thereby charged with notice and knowledge of this agency, as well as with notice of the negotiations and transactions which took place and were carried on concerning the loan by means of the agency of Herald, Broms & Co.

Concerning the other principal error assigned, namely, that the court found that Herald, Broms & Co. was the agent of the United States Mortgage Bond Company and not the agent of W. R. Hidy, we find that the evidence in the record sustains the finding of the court.

The two other errors assigned relating to the appellants’ right to a foreclosure of the trust deed and W. R. Hidy’s right to intervene in the cause, it is pointed out that it is apparent from the averments of fact in the intervening petition of W. R. Hidy that the intervening petitioner had an equitable right and interest in the subject matter of the suit, which he was entitled to have adjudicated; and that the court therefore properly allowed this petition to be filed; and that the evidence shows that the United States Mortgage Bond Company did not pay any consideration for the notes and trust deed in question either to- W. R. Hidy or Carl Q-. Murphy and Maude Murphy, the makers of the trust deed. Turning over of the money for the loan to its own agent, Herald, Broms & Co., which money was not delivered to W. R. Hidy or to the mortgagors, would not constitute a consideration to the mortgagors for execution of the trust deed and notes.

The evidence also sustains the finding in the decree that the mortgagors, Carl Gr. Murphy and Maude Murphy, were not legally in default in the monthly payments which the trust deed required should be made by them.

For the reasons stated, we conclude that the assignments of error referred to are not well taken and that the decree rendered was proper, and it is therefore affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Helen M. Ahrens, Appellee, v. Albert E. Ahrens and Henry A. Ahrens, Executors, etc., et al., Appellants.
    Gen. No. 8,609.
    Heard in this court at the February term, 1931.
    Opinion filed October 17, 1932.

      Shell & Seyfrit, for appellants; Walter L. Wenger, of counsel.
    Victor Hemphill, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

The appellee in this case, Helen M. Ahrens, as heir and devisee of John M. Ahrens, deceased, filed a bill in equity in the circuit court of Macoupin county, making Albert E. Ahrens and Henry A. Ahrens, as executors of the last will and testament of the deceased, and Margery Anheiser individually and as administratrix with the will annexed of the estate of Walter L. Ahrens, deceased, and the other heirs and devisees of John M. Ahrens, defendants, for a construction of the will of John M. Ahrens, deceased; and for an accounting by the executors. Answers were filed to the bill by the defendants and thereafter, there being no dispute about the facts, the matter of the construction of the will and the right to an accounting, were submitted to the court on the bill and answer. The court found the equities in favor of the appellee, Helen M. Ahrens; and a decree in accordance with the findings of the court was entered. This appeal is prosecuted from the decree.

The material facts as foun4 in the decree are that the appellee is granddaughter of the testator and a daughter of the testator’s son, Walter L. Ahrens, deceased; that the testator died May 22, 1904, and left surviving him his widow, Eliza Ahrens; and his children, John C. Ahrens, Peter F. Ahrens, Henry A. Ahrens, Albert E. Ahrens, Mary E. Allen, Emma. M. Daniels, Ada L. Ahrens, Sophie C. Fahnestock, Walter L. Ahrens and Carrie B. Ahrens (who by marriage became Carrie B. Whobrey); also Lester E. Golightly, the testator grandson, who was the only child of a predeceased daughter. The above mentioned were the testator’s only heirs-at-law. The testator’s will was admitted to probate in Macoupin county; and by its terms he bequeathed all personal property except money, notes and bonds, to his widow, Eliza Ahrens. The will directs that all property not given to the wife “shall go into the hands of Executors, and that the Executors shall pay to the wife $600.00”; and then directs, “that all interest on notes and bonds and all rent from the real estate shall be given to the widow during her life. ’ ’ Then in Clause V, which is the clause presented for construction, the testator provides as follows:

“After the decease of my wife, Elisa, all the real estate shall be sold by the executors, either on public or private sale as they think best, and the proceeds thereof with the personal property on hand, shall be equally divided between John C. Ahrens, Peter F. Ahrens, Henry A. Ahrens, Albert E. Ahrens, Mary E. Allen, nee Ahrens, Emma M. Daniels, nee Ahrens, Ada L. Ahrens, Sophie C. Fahnestock, nee Ahrens, Walter L. Ahrens, Carrie B. Ahrens, and Lester E. Grolightly or their heirs, each of the above named shall have the same amount. Provided: That the shares coming to my daughters, Mary E. Allen, nee Ahrens, and Emma M. Daniels, nee Ahrens, shall be held in trust by a trustee during their natural life, and the income of said shares shall be paid to them annually by the trustees.
“If either one of my daughters, Mary E. Allen, nee Ahrens, and Emma M. Daniels, nee Ahrens, shall die without issue, then her share shall be equally divided among my heirs above named, but if she leaves a child or children then said share shall go to them, but shall be held in trust by the same trustee, until they become of age. If either of my daughters, Mary E. Allen, nee Ahrens, and Emma. M. Daniels, nee Ahrens, shall become a widow, then the trustee may pay them their share immediately.
“I appoint my son, Albert E. Ahrens, to be trustee for Mary E. Allen, nee Ahrens and Emma M. Daniels, nee Ahrens, and he shall serve without bond, and provided further, that the share coming to Lester E. Q-o-lightly shall be held in trust by a trustee until he becomes twenty-four years old, and if he shall die before that time without issue, then said share shall be equally divided among my other heirs, but if he leaves a child or children, then said share shall go to the children; but shall be held in trust by the same trustee, until they become of age, and I hereby appoint my son John C. Ahrens, trustee for said Lester E. Grolightly and he shall serve without bond.”

It appears from the record that Walter L. Ahrens, one of the sons of the testator, was married at the time of the execution and probate of this will, and that he had one daughter, namely, the appellee, Helen M. Ahrens; and that afterwards his wife divorced him. Thereafter he remarried, and died testate in 1909, leaving his widow, Margery, who by marriage has become Margery Anheiser; and his daughter, the appellee Helen M. Ahrens, as his only heir. His will was probated in 1929, which was 20 years after his death. By his will, Walter L. Ahrens bequeathed $1 to his daughter, Helen; and all the rest of his property to his widow. The executors named of the estate of the testator in accordance with the provisions of the will sold all of the real estate of the testator and managed the estate and paid the income provided for in the will to the widow during her life and until her death in 1928.- At the time of the death of the widow, all the beneficiaries named in the will were living except Walter L. Ahrens and Ada L. Ahrens, Ada L. Ahrens having previously died intestate without issue before the death of the testator’s widow. It appears from the reports filed by Albert E. Ahrens as executor of the estate, that at the time of the last report the estate remaining amounted to $15,000; and that the money was on hand at the time of the last report.

In construing the will and particularly the fifth clause thereof, the court found that the appellee, Helen M. Ahrens, under the terms of the testator’s will, is entitled to a one-tenth distributive share of the fund referred to by substitution, as heir of Walter L. Ahrens deceased; and is entitled to an accounting.

It is the contention of Margery Anheiser, the widow of Walter L. Ahrens, that she is entitled to the share in the testator’s estate decreed to the appellee by the terms of the will of Walter L. Ahrens; that the estate of the testator, which he devised to his children, vested in the devisees at the death of the testator, and that it was not the vesting but the distribution only of the vested interests that was delayed by the intervention of a life estate in the widow of the testator; and that the interest or share which had thus vested in Walter L. Ahrens should therefore be paid to his widow, Margery Anheiser, to whom he had devised his entire estate at the time of his decease.

We are of opinion, however, that the construction of the will by the court was correct. By the provisions of the will, the testator directed and empowered his executors to sell the real estate and divide the proceeds among his devisees; and this, in legal effect, was an equitable conversion of the real estate into personal property; and therefore title to the real estate necessarily vested in the excutors as trustees to carry into effect the trust provided for in the will. Lash v. Lash, 209 Ill. 595. The direction in the will is that the executors shall divide the estate after the death of the testator’s wildow equally between Walter L. Ahrens and the other children"named, “or their heirs”; and it is apparent from the language of this clause that the testator intended that in the case of the death of his children, or any of them, their respective heirs should be substituted as devisees. What was. said by the court in Banta v. Boyd, 118 Ill. 186, is particularly applicable to the will in question. The court pointed out in that case:

“It is also apparent from the will that the testator did not intend to devise to said parties directly any portion of his real or personal property, but all of his real and personal property was intended to be placed, and was placed, in the hands of his executors, to be by them converted into money, and the proceeds distributed among the legatees named in the will. It was not the property itself which was devised, but the proceeds. Under such circumstances, did Spencer Boyd take a vested interest upon the death of the testator? We think not. On the other hand, we think it is plain that the date of distribution was the time provided when the parties should take.”

For the reasons stated, the decree is affirmed.

Affirmed.


author: Mr. Justice Shurtleff

text:
    The Meredosia Lake Drainage and Levee District, Appellee, v. The Sanitary District of Chicago, Appellant.
    Gen. No. 8,565.

      Heard in this court at the October term, 1931.
    Opinion filed October 17, 1932.

      William Rothmann, Thomas F. Donovan, Joseph McGarry and William H. Dieterich, for appellant.
    Hairgrove & Absher and A. M. Fitzgerald, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This was a suit in trespass on the case. Praecipe was filed March 30,1927; summons was served April 6, 1927, returnable to the October, A. D. 1927, term of the circuit court of Cass county.

The suit was brought by The Meredosia Lake Drainage and Levee District, for convenience, hereinafter referred to a;s “appellee,” against The Sanitary District of Chicago, hereinafter referred to as “appellant,” to recover damages for injuries to the works and property of appellee caused by the flood waters of the Illinois River during the years of 1922 and 1920.

The original declaration, consisting of three counts, was filed on September 23, 1927. The first count of the original declaration avers that the appellee was a duly organized drainage and levee district by an order of the county court of Cass county entered on September 2, 1903; that the description and boundary of the drainage district was fixed by such order; that pursuant to said order appellee constructed its levees, interior drainage ditches, tile drains, pumping stations and other works for the purpose of protecting the farming territory in said district from overflow from the Illinois River and has maintained said works from thence hitherto;

That the appellant is a municipal and public corporation, organized and existing under and by virtue of the laws of the State of Illinois, and as such corporation appellant is vested with certain powers under and by virtue of the statutes of the State of Illinois ereating said corporation and the acts amendatory thereto;

That in and among other things provided by the statute it was provided that the appellant should be liable for all damage to real estate within and without said district which should be overflowed or otherwise damaged by reason of the construction and enlargement or the use of any channel;

That the appellant is the owner of and using and operating a system of channels, drains, ditches, outlets and other improvements for the flow of water and sewage and for the development of electrical power and energy; that in the use of the same the appellant daily withdraws vast quantities of water from Lake Michigan, the Chicago and Calumet Rivers, and discharges said waters together with the sewage of the district into artificially built channels, canals and ditches into the Des Plaines River and thence into the Illinois River; that in the ordinary course of nature none of the waters of Lake Michigan, the Chicago River, the Calumet River, or the waters from their tributaries or watersheds ever reached or flowed into the Illinois River;

That during the five years just preceding the filing of this suit a much larger and greater quantity of water and sewage has been daily so diverted than was turned therein or diverted by it for the period preceding said five years last past; that the appellant continued to flow and caused to be flowed and diverted into the Illinois River as aforesaid a quantity of water and sewage in excess of 10,000 cubic feet per second. The declaration then avers that in and during the month of April, 1922, the appellant in the use and operation of said sanitary district wrongfully discharged larger and greater quantities of water and sewage into the Illinois River than it had previously discharged; that the quantity discharged exceeded 10,000 cubic feet per second, thereby causing said Illinois River to rise to a greater height than usual and to overflow its banks at and near the works of appellee; that said quantities of water and sewage caused injuries complained of.

The second count by reference adopts the averments as to the violation of duty of the appellant averring that “for a further cause of action the appellee avers that by reason of the wrongful acts of the appellant aforesaid,” during the month of October, 1926, the river did overflow its banks and injured the works of the appellee.

The third count adopts the averments as to violation of duty by the appellant averring that, “for a further cause of action the appellee avers, that by reason of the wrongful acts of the appellant aforesaid, to wit: During the years of 1922 to and including 1926, the appellee was compelled to and did expend and use a greatly increased amount of time, fuel, energy, extra help and money in pumping and removing the excessive quantities of water from said appellee District, as the result of said increased flow and diversions aforesaid. ’ ’ The ad damnum is laid at $80,000'.

On December 1, 1927, the appellant filed the general issue and five special pleas, the first denying the ownership and right of possession of appellee to the lands described in the declaration; the second averring the overflow was caused by the construction of reclamation works, over which appellant had no direction or control along and below the lands of the appellee; the third averring the works of appellee itself caused the Illinois River to rise to the elevation which caused the injury; the fourth, the general plea of the statute of limitations, and the fifth a special plea of the statute of limitations.

The declaration and pleas followed generally the declaration and pleas of the case of the Coal Creek Drainage and Levee District v. Sanitary District of Chicago, 336 Ill. 11, and the case of George B. Christie v. Sanitary District of Chicago, 256 Ill. App. 63, and based the canse of action upon unreasonable excess flowage and an increased operation of the canal of the appellant in the five years immediately prior to the commencement of the suit over that of the previous period, which cases were pending in the Supreme and Appellate Courts.

After the opinion was filed by the Supreme Court in the Coal Creelc case, and a rehearing had been denied, appellee on October 7, 1929, asked leave and filed its amended declaration consisting of two counts.

Both counts of the amended declaration follow the first count in the original declaration in the matter of the averments of the organization of the district, the boundary, the construction of the works of appellee, the appellant being a municipal corporation organized and existing under and by virtue of the laws of the State of Illinois and being vested with certain powers under and by virtue of the statutes of the State of Illinois, the construction of the works of appellant and the discharge .of water and sewage into the Illinois River, omitting the averment, “that in and among other things provided by statute that the appellant should be liable for all damages to real estate within and without said district which should be overflowed or otherwise damaged by reason of the construction and enlargement or the use of any channel ditch, drain outlet or other improvement.”

Said first count of amended declaration then avers that in and during the month of April, 1922, the appellant in the use and operation of said system of channels, etc., discharged large quantities of water and sewage into the Illinois River; that the amount so discharged exceeded 6,000 cubic feet per second, causing the river to rise to a greater height than it otherwise would naturally have risen to and to wash over and break through the levees of appellee and overflow and fill up the interior ditches, tile drains, pumping stations and other works of the appellee.

There is omitted from both counts of the amended declaration the following averment contained in the original declaration: “That during the five years just preceding the filing of this suit a much larger and greater quantity of water and sewage has been daily so diverted than was turned therein or diverted by it for the period preceding said five years last past.”

Then follows the averment in said first count that in the year of 1922 the appellee used an increased amount of time, fuel, energy, extra help and money in pumping and removing the excessive quantities of water and sewage and that appellee was compelled to increase its pumping capacity. The ad damnum is laid at $80,000.

The second count is a restatement of the averments of the first count with the exception that it avers, that in October, 1926, the appellant discharged large quantities of water and sewage into the river; that the quantity discharged exceeded 6,000 cubic feet per second causing the river to rise to a greater height than it otherwise would naturally have risen to and to wash over and break through the levees of appellee and overflow and fill up the interior ditches, tile drains, pumping stations and other works of the appellee.

A general and special demurrer was filed to said amended declaration, which demurrers were overruled.

The appellant filed the general issue and six special pleas to said amended declaration. The pleas were numbered from one to seven inclusive. The appellee filed replications to the first and fifth plea of appellant, said first plea being the general issue and the fifth plea being the general plea of the statute of limitations; appellee filed demurrers to the second, third, fourth, sixth and seventh pleas. The demurrer to the second plea, which was a plea denying ownership with the right to possession, was sustained. The demurrer to the third plea, which averred that the increased elevation of the stage of water of the Illinois River which caused the injury was caused by the construction of various levees and embankments by various drainage districts over the construction of which the appellant had no authority or control, was sustained. The demurrer to the fourth plea, which averred that the injury was produced by the construction of the works of appellee, was sustained. The demurrer to the sixth plea, which was a special plea of the statute of limitations, was sustained.

The appellant’s seventh plea was a special plea of the statute of limitations and avers the following: That the Sanitary District was organized and formed pursuant to an act passed by the Illinois Legislature, entitled, “An Act to Create Sanitary Districts and to Remove Obstructions in the Des Plaines and Illinois Rivers,” Cahill’s St. ch. 42, ¶ 337 et seq., which act was approved and in force July 1, 1889; that pursuant to said act the Sanitary District was given the power to construct one or more main channels for disposing of the drainage of said district, including the sewage; that said act provided that if any Sanitary District organized under the act should construct any channel or outlet which would cause a discharge of sewage into or through any river or stream of water beyond or without the limits of such Sanitary District constructing the same such channel should be of sufficient size and capacity to produce a continuous flow of at least 200 cubic feet per minute for each 1,000 of the population of the district drained thereby, and that the same should be kept and maintained of such size and in such condition that the water thereof should be neither offensive nor injurious to the health of the people of the State; that said district should at any time any sewage was turned into or through such channel or channels turn into such channel or channels not less than 20,000 cubic feet of water per minute for every 100,000 inhabitants of said district and should thereafter maintain the flow of such quantity of water; that if any channel was constructed under the provisions of said act by means of which the water of Lake Michigan should be caused to pass into the Des Plaines or Illinois River such channel should be constructed of sufficient size and capacity to produce and maintain a flow of not less than 20,000 cubic feet of water per minute for every 100,000 of the inhabitants of said district, if said district exceeded 1,500,000 in population; that pursuant to the authority conferred upon it the appellant did construct a channel from a point near Robey street in the City of Chicago to a point near Lockport in the county of Will and State of Illinois; that on January 17, 1900, it did cause the waters of Lake Michigan and of the Chicago River to flow through said channel into the Des Plaines River and from thence into the Illinois River, and that from said day up to the time of the commencement of said suit, and also up to the present time it had caused the waters of Lake Michigan and the Chicago River area to flow through into said main channel into the Des Plaines River and thence into the Illinois River; that said channel was and is a permanent public work, structure or improvement and will continue for all time; that the population of the Sanitary District on January 17, 1900, at the time said channel of the appellant was placed in operation, exceeded 1,500,000 inhabitants; that the population of the Sanitary District of Chicago in March, 1927, and for more than five years prior thereto exceeded 3,000,000 people, and said population of said district has continuously increased since that time; that in order to comply with the provisions of the statute it was necessary to flow through the main channel of the Sanitary District of Chicago from the Chicago Eiver drainage area and the waters from Lake Michigan an amount of water not less than 20,000 cubic feet per minute for each 100,000 of the population of said Sanitary District; that in no time in said declaration mentioned has the flow from said Sanitary District exceeded the amount required by said act, and at no time has there been any flow in excess of the minimum amount which was excessive or unnecessary for sanitary purposes.

That the lands described in appellee’s declaration, and each part and parcel thereof was and is so situated that for more than five years prior to the filing of said declaration said water did necessarily overflow, invade and permanently injure said lands.

That the said injury complained of by the appellee in its declaration constitutes and is but one cause of action or right of recovery against the appellant, to wit, a right to recover damages for permanent injury to said lands, which right of action accrued to the appellee more than five years prior to the commencement of this suit.

The several proposed causes of action in said declaration mentioned are one and the same and did not, nor did any or either of them accrue to the appellee at any time within five years next before the commencement of this suit in the manner and form as the appellee has complained against it. The plea concludes with prayer for judgment on the plea.

To this plea the appellee filed a replication, by which replication the appellee admitted the following averments of said seventh plea: That in 1889 there was passed by the General Assembly of the State of Illinois an act as alleged in said seventh plea, which act was approved and in force as therein alleged; that said appellant was organized pursuant to said act; that the Sanitary District by said act was authorized to construct the said channels and adjuncts thereto for the purpose of carrying off the drainage and sewage of said Sanitary District as in said plea alleged; that said Sanitary District did construct said channels in accordance with the requirements of said act as in said seventh plea alleged; that the appellant on the 17th day of January, A. D. 1900, did cause the waters of Lake Michigan and the Chicago Biver to flow through said channels into the Des Plaines and thence into the Illinois Biver and from said day up to the time of the commencement of this suit and up to the present time the appellant has caused the water of Lake Michigan, the Chicago Biver and the Sanitary District area to flow through said main channel into the Des Plaines Biver and from thence into the Illinois Biver as in said plea alleged; that said channels and construction are a permanent public work or structure and intended to and will continue for all time as in said plea alleged; that the population of the Sanitary District of Chicago on January 17, 1900, exceeded 1,500,000, and that the population of the Sanitary District of Chicago in 1927 and for more than five years prior thereto exceeded 3,000,000 people; that to meet the requirements of said act of the Illinois Legislature in that behalf, it was necessary for the appellant to flow through the main channels of the Sanitary District of Chicago, from the Chicago drainage area and the waters of Lake Michigan an amount of water of not less than 20,000 cubic feet per minute for each 100,000 of the population of the Sanitary District of Chicago; that at no time in said declaration mentioned has the flow of water from said Sanitary District exceeded the amount required by said act of the Illinois Legislature; that at no time has there been any flow excessive or unnecessary for sanitary purposes. Said replication concluded with the following averment: “This appellee further replying to said seventh plea of the appellant says that the property described in appellee’s declaration and each part and parcel thereof was not and is not so situated that for more than five years prior to the filing of said declaration the said water from said Sanitary District did necessarily overflow, invade and permanently injure said property, as in said plea alleged; and that said injuries in said declaration alleged are not one act or cause of action or right of recovery against the appellant as in said plea alleged; that the said overflow is not a permanent injury to said property of appellee as in said plea alleged; and that the said right of action did not accrue to the appellee more than five years prior to the commencement of this suit as in said plea alleged; but it says that the several causes of action and each and every of them did accrue to it within five years before the commencement of this suit in manner and form as it has above complained against the appellant. ’ ’

Appellant made its motion to find the issues for the appellant upon the pleadings and enter judgment for the appellant upon such findings. The motion called the court’s attention to the seventh plea in the declaration, being the special plea of the statute of limitations, and to the admissions contained in the replication filed to said seventh plea.

The grounds urged for the granting of said motion were that the declaration charged no violation of the duty imposed upon the appellant by law, which violation resulted in any damage to the appellee; that the seventh plea set up a complete defense to said action and that the replication of the appellee admitted all the material facts necessary to constitute said defense and that under said pleadings there was no issue of fact to be submitted to the jury. The motion to find the issue for the appellant and enter judgment on the pleadings was overruled.

A bill of particulars having been filed, on motion of appellant, the court ordered a more specific bill of particulars which was filed on May 20,1930, and which set up the following :

That, “This action is brought to recover from the Sanitary District of Chicago for damages done by diversion of water from its natural channel and course, and thereby damaged the property of the appellee, the appellee being a drainage district duly organized under the Statutes of the State of Illinois.”

That the appellee, having acquired certain rights of way for the purpose thereafter of constructing the works of said drainage district thereon, has been in possession of said rights of way; that before April, 1922, the appellee had constructed its levees, interior and open ditches, tile drains, pumping stations, keeper’s house, pump building, levees, and open ditches on said rights of way; that the appellant, the Sanitary District of Chicago, in April, 1922, diverted waters from Lake Michigan, the Chicago'River and the watersheds adjacent thereto and the sewage from the Sanitary District and caused the same to flow into the Illinois River above appellee’s district; that in April, 1922, the river, then being at a high stage by means of said additional water and sewage, then and there overflowed and damaged the said property of the appellee.

The more specific bill of particulars then sets out items of damage occurring in 1922. It then sets out items of damage occurring in 1926.

Thereafter, on January 19, 1931, an amendment to said more specific bill of particulars was filed, claiming as an element of damage expenses of the proceedings taken in the county court of Cass county for the purpose of having assessment made on the property within the district, the amount paid for attorneys’ and engineers’ fees and court costs in said proceedings. The amendment itemized the court costs, the attorneys’ fees and engineers’ fees for the spreading of the assessment made to repair the works after the 1922 and 1926 floods. .

There was a trial by jury, and verdict and judgment in behalf of appellee in the sum of $40,000, and appellant has brought the record to this .court, by appeal, for review.

The Meredosia Lake Drainage and Levee District comprises approximately 4,000 acres of land. Approximately 1,500 acres are located in Morgan county and approximately 2,500 acres in Cass county. It lies east of a body of water known as Meredosia Lake. Meredosia Lake is a body of water about six miles long and from one-half mile to one mile wide, lying in a northeasterly and southwesterly direction connecting with the Illinois Eiver about one and one-half miles south of the southerly line of the district at Meredosia and paralleling the Illinois Eiver, being separated from said river in low water by a strip of land averaging about one and one-half miles in width. The westerly line of said district is along the east edge of Meredosia Lake, and the easterly line of said district is the meander line of the high water of 1844.

The works of the district consist of a levee for a distance of about one-half mile along the northerly end, commonly known as the Indian Creek levee, and is approximately five miles long, along* the west side, being the easterly bank of Meredosia Lake, and is approximately two miles long along the southerly end of said district, together with a pumping plant consisting of two units, one a steam driven and the other an electric driven, and a series of interior ditches, one running in a northeasterly and another in a southwesterly direction, substantially along the center of said district connecting with the pumping plant.

From appellee’s evidence it appears that the original works were constructed in 1904, the evidence being silent as to what elevation the levees were constructed ; that assessments in the amount of $50,411.81 were levied against the lands of the district for the construction of the original works in September, 1903; that thereafter an additional assessment in the amount of $11,902.85 was levied with which to complete the works; that in 1909 an additional assessment of $40,776 was levied upon the lands within said district for strengthening and improving the various works, including levees, the deepening and widening of its drainage ditches and a duplication of its pumping plant; that another assessment of $31,691.40 was spread in 1914 to repair and strengthen the works of the district.

The lands within this district prior to the construction of the works were overflow lands. The topography shown on defendant’s Exhibits 34 and 35 corresponds with plaintiff’s Exhibits 73 and 74, which are sheets 16 and 17 of the United States Survey of the Illinois and Des Plaines Rivers made by J. W. Woermann, U. S. Assistant Engineer in 1902-1904, which sheets place the shore line of the water indicated thereon at the elevation of the low water of 1901 which was 9.95 on the gauge of the LaGrange lock, below the dam, said gauge being located approximately two miles west of the center of the district, the zero of that gauge being 418.23, Memphis Datum, which was the datum plane used in establishing the elevations of the upper Mississippi River basin, the water of 1901 being 428.18, Memphis Datum on said gauge.

The lands within the district lie at an elevation from 437 to 450, the majority of the acreage lying below 443, contour line. In a state of nature they were subject to overflow when the stage of the water was 19 feet at the gauge on LaGrange locks, and when the flood stage was approximately 11 feet on the gauge at Meredosia.

On cross-examination of various of appellee’s witnesses it was shown that the lands were subject to frequent overflows prior to the construction of appellee’s district, and prior to the opening of appellant’s canal, the witnesses testifying that there was a flood in 1883, 1892, 1897, 1898, 1902, 1903 and 1904. One of their witnesses testified that he remembered the flood of 1869 which covered approximately 3,000 acres of the land in the district; that the recurrence of the floods from 1890 to 1900 was the cause of the movement to circulate the petition for the organization of the district.

The evidence showed that the stages of the flood water of the Illinois River increased in elevation and in frequency after the construction of the works of the district, which works were constructed after the flood of 1904; that in 1913 the water rose to as great a flood height as it had ever been known- to rise to except in 1844, with the result that the levees of appellee’s district were broken down, the lands within the entire district were flooded, destroying the crops, filling the interior ditches and damaging the levees to the extent that it required an assessment of $31,691.40 to repair the damage.

The high flood stages of the river continued up to 1922, the flood in 1916 reaching an elevation of approximately 22 feet on the Meredosia gauge, and the flood of 1920 reaching an elevation of approximately 21 feet on the Meredosia gauge.

In other respects the testimony followed very closely the facts proven in Coal Creek Drainage and Levee District v. The Sanitary District of Chicago, supra, and Georye B. Christie v. The Sanitary District of Chicago, supra. The cases are controlled by substantially the same set of facts, and it would serve no useful purpose to encumber this opinion with their volume. It is first contended that appellee, by its amended declaration, introduced or attempted to introduce a new cause of action into the case, and that it is to be regarded as a new suit commenced when the amended declaration was filed. It is contended by appellant that an amendment shifting or changing from a statutory count to a common-law count or conversely is not allowed, for the reason that it changes the cause of action, citing numerous cases in our courts and the federal courts. Whatever may have been the law of this State prior to the amendment of section 39 of the Practice Act, Cahill’s St. ch. 110, ft 39, passed by a very progressive legislature in 1929 and approved by the governor on June 26 of that year, it will not be fully certain just what all of the amendments and additions to that section do comprehend, until it and they are fully reviewed by the Supreme Court, as the many phases of those additions come before the court and we therefore do not pass upon the question, as it is not necessary to a decision of this case.

Many questions are raised, cases cited and discussed, which we do not deem necessary to determine for a disposition of this case.

Appellee presents a declaration at common law to recover for injuries caused by intermittent and recurring floods from the channel of the Illinois River, into which appellant has poured its sewage with the waters of Lake Michigan, under the act of its organization. Jones v. Sanitary District of Chicago, 252 Ill. 591, 598. These intermittent and recurring floods must have resulted and injured appellee within five years prior to bringing this suit. The works, diversion of water, and channel created by the diversion of water into the Illinois River by appellant, have created a permanent structure, as held by the Supreme Court in many cases: Jones v. Sanitary District of Chicago, supra, page 597; Schlosser v. Sanitary District, 299 Ill. 77; the court held in the latter case, page 82: “The declaration did not complain of the manner of construction, operation or use of the canal or the works connected with it or of any negligence of the appellant, but alleged a permanent injury to the appellee’s land caused by the existence, operation and use of the canal in the manner authorized by law. For such injury the person injured must recover all damages which "he has sustained or will sustain in the future from the operation of the canal in the manner and to the amount then authorized by law in a single suit, and that suit must be brought within five years after the completion of the work and putting it in operation. (Suehr v. Sanitary District, 242 Ill. 496; Vette v. Sanitary District, 260 id. 432; Shaw v. Sanitary District, 267 id. 216;. Wheeler v. Sanitary District, 270 id. 461.) ”

And in Suehr v. Chicago Sanitary District, 242 Ill. 496, 497, the court held: ‘ ‘ The court admitted proof of the effect of'the increased flow of water upon the island up to the time of the trial, and the admission of this class of proof is the main question discussed in the brief of appellant. The drainage canal is a permanent structure, and the appellee has the right in this case to recover all damages, past, present and future, which his real estate had sustained by reason of the construction of that improvement; (Chicago and Eastern Illinois Railroad Co. v. Loeb, 118 Ill. 203; Springer v. City of Chicago, 135 id. 552; Penn Mutual Life Ins. Co. v. Heiss, 141 id. 35; City of Centralia v. Wright, 156 id. 561; Galt v. Chicago and Northwestern Railway Co., 157 id. 125; Hyde Park Light Co. v. Porter, 167 id. 276;) and it is the settled law of this State that it was proper to prove the effect of the increased flow of water upon said island down to the time of the trial. Springer v. City of Chicago, supra; Penn Mutual Life Ins. Co. v. Heiss, supra; City of Centralia v. Wright, supra.”

The rule laid down as to whether the owner must sue for permanent damages or whether he may bring a suit for intermittent and recurring injury, is expressed in Jones v. Sanitary District of Chicago, supra, page 596, as follows: “The contention that the court erred in sustaining the demurrer to the plea of the Statute of Limitations is based upon the claim that as the building of the drainage canal is authorized by an act of the legislature and is permanent in its character, the injury inflicted upon appellee, if any, is permanent, and he is limited to one cause of action for the recovery of all damages, past, present and prospective, and that his right of action accrued more than five years before the commencement of the suit. In support of this contention appellant relies on the class of cases which hold that when the original nuisance or cause is of a permanent character, so that the damage inflicted is of a permanent .character and goes to the entire destruction of the estate affected thereby, the recovery not only may, but must, be had for the entire damage in one action, as the damage is deemed to be original. In those cases the injured lands were adjacent to the structure complained of, so that its construction necessarily and immediately destroyed or depreciated their value. This case does not fall within that class. The improvement known as the drainage channel is permanent in character, but it is not alleged that appellee suffered damage by reason of its construction. The construction and continuance of the channel more than two hundred miles from appellee’s land is not necessarily an injury. It is the use that has been made of it that it is complained has caused the injury. The declaration alleges that the lands of appellee have been overflowed but a portion of each year. This might be caused by the emptying of more water from the channel into the river at some time than at others, or it might be the result of the confluence of the waters of the drainage channel with those of a freshet, or with the waters which cause an annual rise in our rivers. In either event it is contingent whether the lands of appellee shall suffer damage, — in the one case upon the action of those in control of the flow of water from the drainage channel, and in the other upon the action of nature. If the flooding was the result of the first named cause, then it was due to" the negligent management of the flow through the channel, as the statute provides for a constant flow, which is not to be increased except as the population of the district increases, in which case the increase will be permanent and the flow will still be constant. The fact that the channel is a permanent improvement does not, of itself, serve to determine when, if ever, or to what extent, injury will be suffered. That the injury complained of is not necessarily caused by the construction or existence of this permanent improvement is evidenced by the fact that at times the river is within its banks and the lands of appellee are not overflowed. If, as appellant contends, the Statute of Limitations runs as to such actions as this from the date the drainage channel was completed to Lockport and the flow of water turned on, it is possible for a party to be barred before he has suffered any injury whatever. It is the injury sustained which is the cause of action, and the statute does not begin to run before the cause of action accrues. The permanency of the injury is the test as to whether damages for all time must be assessed.” The court holds: “If the flooding was the result, in the one case, upon the action of those in control of the flow of water from the Drainage Canal,” the injury is permanent and the statute of limitations runs. If the flooding was the result,— “And in the other upon the action of nature,” “or it might be the result of the confluence of the waters of the drainage channel with those of a freshet, or with the waters which cause an annual rise in our rivers,” then, as the court holds in the J ones case, the flooding may be intermittent and recurring, and plaintiff may sue, not for permanent damage, but for the damages caused by the recurrences. Applied to the case at bar, appellee’s position would be that appellee had never suffered any permanent injury or damage from the construction and operation of the Sanitary District Canal and that the injury to its lands was occasioned and brought about by a legal and lawful flow of water in the Sanitary Canal, not of itself causing injury, but such waters, at recurrent spells, mingling with a freshet or with the waters which cause an annual rise of our rivers, caused the injury. In the Jones case, page 599, the court points out the distinction, and cites the Suehr case as follows: “Appellant relies upon Suehr v. Sanitary District, 242 Ill. 496, as sustaining its contention that appellee’s injuries are of a permanent character. In the Suehr case the injuries sustained were quite different from those alleged here. In that case Suehr undoubtedly suffered a permanent injury. His ford connecting the island with the main land was destroyed. A part of the island was washed away, including the timber along its edges, and its arable lands were largely submerged and its uses for agricultural purposes were largely destroyed. The injury sustained in that case was clearly of a permanent character, but the facts alleged in this case are essentially different and do not bring it within the rule there announced. ’ ’

Following the Jones case, in Vette v. Sanitary District of Chicago, 260 Ill. 432, the court has rather narrowed the limits of suits for temporary injury and the court say on page 437: “Appellee relies upon Jones v. Sanitary District of Chicago, 252 Ill. 591, as sustaining his contention that the demurrer to the plea was properly sustained. There is a marked difference between the situation presented in this case and that presented in the Jones case, and the holding in the Jones.case sustains the contention of appellant that the demurrer to the plea here should have been overruled. In the Jones case the declaration counted on temporary injuries, only, and recovery was sought for damages occasioned during the five years next preceding the filing of the declaration. The plea of the Statute of Limitations interposed to the declaration in that case set out at length the special facts which were relied upon as a bar, but it did not appear, either from the declaration or from the plea, that the continuance and operation of the channel of appellant would necessarily result in injury to the lands of appellee, and it was held as the turning point in that case, that where the continuance and operation of a permanent structure are not necessarily injurious but may or may not be so, then only the injury sustained prior to the commencement of the suit may be compensated in that suit. The converse of this proposition is true, viz., that where the continuance and operation of a permanent structure are necessarily injurious, then damages for all the injury sustained must be recovered in one suit. In the case at bar the declaration expressly alleges that any additional water caused to flow artificially into the Illinois river would prevent the use of appellee’s lands as farm lands and would injure and destroy his crops and his timber, from which it must follow that the continuance and operation of the sanitary district channel are necessarily injurious to the lands of appellee, and he must recover for all damages, past, present and future, in one action. The declaration in the Jones case contained no such allegation, but, on the contrary, it was so drawn as to expressly negative such an allegation.”

The same rule was laid down in Brockschmidt v. Sanitary District of Chicago, 260 Ill. 502.

In Shaw v. Sanitary District of Chicago, 267 Ill. 216, the same question arose as to temporary injury, and the court held on page 218: ‘ ‘ The court gave general instructions advising the jury of the rule of law to be applied in determining the issue of fact submitted, and stating, in substance, that if, from and after January 17, 1900, when the defendant opened its channel, it had continuously caused the water to flow therein and through the Des Plaines and Illinois rivers by the lands of the plaintiff; that the flowing of the water immediately caused an invasion of the plaintiff’s lands, producing a reduction in their fair cash market value, and that the construction, operation and use of the defendant’s channel under the acts governing the sanitary district would of necessity, and did, affect the plaintiff’s lands so as to injure and destroy the pasturage thereon and to damage the crops thereon and to interfere with and prevent the plaintiff from using the land for farming purposes, and that prior to February 3, 1909, the lands were as frequently overflowed and were as continuously submerged by water as they had been during the five years since that date, then the injury and damage were permanent and the plaintiff could not recover in the action. Error is assigned on the giving of these instructions, and also on the refusal of the court to give an instruction requested by the plaintiff, stating that it was admitted that during a portion of each year since January 17,1900, the land was overflowed and a portion of each year the water was off of the land and the river within its banks, and that therefore damages to the lands during the five years were temporary and not permanent.

“It is contended that there was no evidence upon which to base the instructions given by the court, and that under the rule stated in J ones v. Sanitary District of Chicago, supra, there was no evidence tending to prove a permanent injury and damage to the lands. In that case it was considered that the facts alleged in the declaration created merely temporary and not permanent damages, and that a plea of the Statute of Limitations which did not show that the continuance and operation of the channel would necessarily result in injury to the lands did not bring the case within the Statute of Limitations, and therefore it was not error to sustain the demurrer to the plea. The question raised by the demurrer was one of law, and it did not appear either from the declaration or from the plea that there was a permanent injury to the lands, so that if all the facts alleged in the plea were proved the statute would not bar the action. This was made clear in the case of Vette v. Sanitary District of Chicago, supra, in which the declaration alleged that any additional water caused to flow artificially into the Illinois river would prevent the use of the plaintiff’s lands as farming lands and would injure and destroy his crops and timber, which was an averment of a permanent injury at the time the water of the drainage channel was turned into the river. The pleas in this case alleged facts constituting a permanent injury, for which the plaintiff might have been compensated in one suit, and the replications took issue on the facts alleged. If the instructions correctly stated the law they were not objectionable for want of evidence to prove the facts alleged.

“It is not necessary and would not be profitable to repeat the rules of law distinguishing temporary from permanent injuries to lands stated in the cases above cited. If the evidence for the defendant is accepted as true, the injury to the plaintiff’s lands occasioned by turning the water of the drainage channel into the river on January 17, 1900, was not one which might or might not be continued or might or might not be injurious in the future. The drainage channel was a construction of a permanent character, and under the act governing the sanitary district a continuous flow was to be maintained for all time, necessarily continuing, without change, the injury to the plaintiff’s lands. The court did not err in giving the instructions, which were correct statements of the law.

“The tenth instruction offered by the plaintiff and refused, based a supposed rule of law that the damages to plaintiff’s lands were temporary and not permanent upon an admission that in times of low water the lands were not flooded, and were only flooded when the water ivas high and the river out of its banks. That could only be so if a permanent injury must be continuous and the lands be constantly submerged, but counsel Avho offered the instruction insist that they take no such position. Their interpretation of the instruction is, that damages arising from intermittent floods, uncertain in time, duration and extent, could not be assessed in one action and therefore are temporary. It is true that the amount of water contributed by the river at different times of flood could not be definitely ascertained, but there would be no difficulty in determining the increase on account of a steady and continuous flow from the drainage channel not affected at all by storms or melting snows. The court did not err in refusing the instruction. ’ ’

It is highly interesting to peruse appellee’s amended declaration, to determine, in the light of the cases cited, Avhether its injury was a mere temporary intrusion or Avhether it was permanent.

The amended declaration recites: “Plaintiff further avers that the defendant is a municipal and public corporation organized and existing under and by virtue of the laws of the State of Illinois, and as such corporation the defendant is vested Avith certain powers under and by virtue of the Statutes of the State of Illinois, creating said defendant corporation, and the acts amendatory thereto; and that, under and by virtue of said statutes, the defendant is the owner of, and using and operating a system of channels, drains, ditches, outlets and other improvements for the flow of water and sewage; and that in the use of the same the defendant daily withdraws vast quantities of water from Lake Michigan, the Chicago River and Calumet River and that the defendant has reversed the flow of the waters of the Chicago River; that the defendant discharges all of the above mentioned waters, so withdrawn and reversed as aforesaid, together with all of the sewage within its district, which district is comprised of a vast and densely populated area, into artificially built channels, canals and ditches; that all of said waters and sewage aforesaid, are flowed by the defendant daily through its channels, etc., to a point near Lockport, Illinois, whence the same are discharged by the defendant through its said channels and outlets into the Des Plaines River and thence into the Illinois River; that in the ordinary course of nature, neither the waters of Lake Michigan, the Chicago River, the Calumet River, nor the waters from their tributaries or watersheds, or said sewage, ever reached or flowed into the Illinois River as aforesaid; that the defendant thereby causes to be flowed and diverted into the Illinois River, as aforesaid, large quantities of water and sewage, in addition to the waters theretofore naturally flowing into said Illinois River; and that by reason of this addition of said waters and sewage as aforesaid, the natural surface of the Illinois River has been materially raised in the vicinity of and adjacent to the property of the plaintiff.

“Plaintiff further alleges that in and during, the month of April, 1922, the defendant in the use and operation of said system of channels, drains, ditches, outlets and other improvements, discharged larger quantities of water and sewage into the Illinois River, to wit: Exceeding six thousand cubic feet per second, thereby causing the said Illinois River, by said addition of waters and sewage, as aforesaid, to rise to a greater heighth than it otherwise would naturally have risen, to wit: Four feet, and defendant thereby caused said Illinois River to flow over its bank near the levees, tile drains and pumping stations of said plaintiff, and to wash over and break through the levees of plaintiff and overflow and fill up the interior ditches, tile drains, pumping stations and other works of the plaintiff.

“Plaintiff further alleges that said quantities of water and sewage so diverted, as aforesaid, and so cast upon and overflowing and flooding the levees, ditches, tile drains, pumping stations and other works of the plaintiff, caused the said levees, ditches, tile drains, pumping stations and other works of the plaintiff, to be greatly injured thereby, in that the said levees. of plaintiff were inundated, washed away and worn down by said water; the said ditches and drainage ditches of plaintiff were thereby enlarged in some places, and filled up in other places, thereby obstructing and destroying their uses as such; that the said tile drains of plaintiff were thereby stopped up, washed out and destroyed, and the said pumping stations of plaintiff were thereby submerged, washed away and destroyed and thereby rendered inoperative and of no further use to plaintiff, until vast and extensive repairs were made thereon; that the buildings and other works of said plaintiff were washed away, submerged, damaged and destroyed thereby; and that the plaintiff suffered great damage thereby, at the time and in the manner aforesaid.

“Plaintiff further alleges that, by reason of the said acts of the defendant as aforesaid, and at the time aforesaid, to wit: In the year of 1922, the plaintiff was necessarily compelled to, and did expend and use a great and increased amount of time, fuel, energy, extra help and money in pumping and removing the excessive quantities of water and sewage so diverted by the defendant, as aforesaid, from said plaintiff district, as the result of the increased flow and the diversion as aforesaid; that the said increased flow, caused by the diversion of the said water and sewage by the defendant, as aforesaid, left large quantities of water and refuse within the said plaintiff district; that said plaintiff, by reason thereof, was of necessity compelled to, and did increase its pumping capacity and its help, and was of necessity compelled to and did lay out and expend greater sums of money for fuel for pumping and to repair, construct and make extra ditches, drains, etc., in order to relieve said plaintiff district of and from said waters and sewage so diverted and overflowed by defendant, as aforesaid; that the pumping of said excessive waters required a great deal of extra time and increased the burden, both in man power and in money of said plaintiff district, to a great amount over and above that which it was necessary^ on the part of plaintiff to use arid expend, prior to the acts of the defendant hereinbefore set out and described; that it required many months of extra pumping of the said excess amount of water and sewage so diverted and overflowed to and upon plaintiff’s premises and works as aforesaid, and in repairing and in cleaning said ditches of plaintiff district, so damaged and filled up as aforesaid, to relieve said plaintiff district of the excessive waters and sewage, as aforesaid, before said district, could accomplish the usual and necessary work and purposes for which said district was organized; that on account of said wrongful acts of the defendant, said plaintiff district was inoperative and rendered useless, as a drainage and levee district, for the benefit of said territory in plaintiff district, and thereby the purposes and usefulness of said plaintiff district as a drainage and levee district in said territory, was materially impaired and greatly decreased ; and that said plaintiff district was, by reason of said excess water and sewage and before said extra pumping, repairing and cleaning, as aforesaid, of no benefit to said territory as a drainage district; that the capacity of said plaintiff district was overtaxed and that the excess waters were left to remain upon the farming lands in said plaintiff district territory for many months by reason of the said acts of the defendant and the conditions resulting therefrom as above described; that the territory in said drainage district was thereby deprived of its customary, usual and nec-' essary drainage.

“That as a result of the increased flow of the Illinois River, caused by said diversion of water and sewage by the defendant as aforesaid, during said time, the plaintiff suffered great loss and injury thereby and was thereby damaged in the amount of Eighty Thousand Dollars ($80,000.00). Wherefore, on account of the wrongful acts of the Defendant aforesaid and the' conditions resulting therefrom as aforesaid, the plaintiff has been damaged in the total sum of Eighty Thousand Dollars ($80,000.00), and therefore, plaintiff brings its suit, etc.”

The second count follows with similar charges as to the flood of 1926.

Appellant’s seventh plea to the amended declaration set out the full organization and operation of the Sanitary District from 1900 to 1927, and by that plea, which was admitted by appellee, it was charged that the district from 1900 to 1922 poured into the channel consecutively 5,000 cubic feet of water from Lake Michigan in 1900, to 10,000 cubic feet per second in 1922, while the population of the district was ranging from 1,500,000 in 1900, to 3,000,000, in 1922, and it is reasonable to presume that the rate of flow was somewhat graduated, in accordance with the influx of population, and that as early as 1910 a much larger flow than 6,000 cubic feet per second was passing into the channel. In fact, appellee’s declaration charges that in April, 1922, exceeding 6,000 cubic feet of water and sewage per second were discharged into the channel and caused the damage complained of.

The only possible issue of fact raised in this case is raised in the appellee’s replication to appellant’s seventh plea, wherein appellee recites: “This plaintiff further replying to said seventh plea of the defendant says that the property described in plaintiff’s declaration, and each part and parcel thereof was not and is not so situated that for more than five years prior to the filing of said declaration the said water from said Sanitary District did necessarily overflow, invade and permanently injure said property, as in said plea alleged; and that said injuries in said'declaration alleged are not one act or cause of action or right of recovery against the defendant as alleged in said plea; that the said overflow is not a permanent injury to said property of plaintiff, ’ ’ etc. Everything else alleged in the plea is admitted, and the traverse as to the location of the land and its situation, is completely adverse to all the admitted facts in this case. The declaration avers that the vast amount of waters diverted by appellant from Lake Michigan “have materially raised the surface of the Illinois River in the vicinity of and adjacent to the property of plaintiff.”

Appellee’s lands adjoin Lake Meredosia, which is a mere arm of the Illinois River, and the purpose of appellee’s organization was the erection and construction of about seven and one-half miles of levees and dykes and embankments between the appellee district and the Illinois River and its arm, Lake Meredosia. It may be said to be proven from the evidence that during every year from the organization of appellee district and the construction of said levees and dykes, the waters of the Illinois River, including the mingled waters of the appellant district, surged and flowed against said levees and dykes. It was those waters that the levees and dykes were made to break and withstand, and they have always been a permanent injury to said lands, just as the waters of the Illinois River flooded over and were an injury to the lands before the opening of appellant’s channel.

The declaration as a whole and each count thereof charge a permanent injury or attempt to charge a permanent injury and are each defective in not charging an additional flow of water in the five years preceding the commencement of this suit from the former five-year period. Kuhne v. Sanitary District of Chicago, 294 Ill. 430, 435. The charge in the declaration, “that in April 1922 appellant discharged larger quantities of water and sewage into the Illinois River, to wit: exceeding 6,000 cubic feet per second, and that this quantity of water and sewage so diverted as aforesaid, and so cast upon and overflowing and flooding the levees, ditches, tile, drains, pumping stations and other works of the plaintiff to be greatly injured thereby, in that the levees of plaintiff were inundated, washed away and worn down by said water; the said ditches were'thereby enlarged in some places and filled up in other places, thereby obstructing and destroying their uses as such,” together with the admissions in the record by appellee that appellant had kept up and continued said flow and diversion of waters upon appellee’s land since 1904, and in the Illinois River since 1900 constituted a charge of permanent injury and permanent injury only and has no element of intermittent, recurrent or temporary injury about it. It follows, therefore, that the declaration charged no cause of action against appellant. Kuhne v. Sanitary District of Chicago, supra.

Numerous errors are pointed out in the admission of evidence and in the giving of instructions, to none of which have we given any consideration in the disposal of the case. There can he no question about appellee or a proper party having the right to bring an action at common law for temporary or recurring injuries, but when an action is brought for permanent injuries, “consequential damage from the exercise of the power of eminent domain, ’ ’ which are said to be “based either on an implied promise to pay or on a liability under the constitution providing that private property shall not be taken or damaged without compensation, ” 30 A. L. R. 1190, such actions are not based upon the common law, but are founded upon the statutes providing for such relief and the construction' given to such statutes by the courts. People v. Kirk, 162 Ill. 138, 152; Sutter v. People’s Gas Light & Coke Co., 284 Ill. 634, 640.

A motion was made by appellee in this court to strike the bill-of exceptions from the files, which has been taken with the case.

The case was tried at the January term of court, A. D. 1931, and verdict rendered and motion made for a new trial at said January term, which motion was continued for hearing to the March term of court. At the March term of court, on July 3, 1931, the motion for a new trial was heard and overruled and judgment entered, and at the same time appellant was given until September 15 following to present and file a bill of exceptions. The bill of exceptions was presented and filed on September 10, 1931, and this complied with the rule. z The continuance of the hearing of the motion for a new trial to the March term continued the jurisdiction of the court over the cause, and the right to order a bill of exceptions at the March term. The motion is overruled.

At the close of appellee’s testimony and again át the close of all the testimony, appellant moved the court to instruct the jury to find a verdict for appellant. Again before the entry of the judgment appellant moved in arrest of judgment, all of which motions were denied and exceptions taken.

It follows from what has been said that the judgment of the circuit court of Cass county should be and is reversed, with a finding of fact.

Reversed ivith a finding of fact.

Findings of fact to be incorporated in the judgment:

The court finds that the facts alleged in the amended declaration, under which the case was tried, do not constitute a cause of action, and that the evidence in the record does not show that the appellee has a cause of action against appellant, which accrued within five years before the commencement of this suit.