text:
    Chicago and Western Indiana Railroad Company v. Lake Shore and Michigan Southern Railway Company.

      Injunctions—Railroads—Construction of Crossing — Contract — Easement—Damages—Estoppel.

    Upon a bill filed by a railroad company to restrain another company from interfering with it in laying down and constructing a railway track across the defendant’s track on premises owned by the complainant, it is held: That the complainant has the right to construct the track, both by reason of its ownership of the ground and the reservation in the contract under which the defendant’s tracks were constructed; that the complainant’s damages, if prevented from constructing its track, would be wholly uncertain; and that the question whether the use to be made of the proposed track will be consistent with the enjoyment of the easement of the defendant, does not arise.
    [Opinion filed January 16, 1889.]
    Appeal from the interlocutory order of the Circuit Court of Cook County; the Hon. Oliver H. Horton, Judge, presiding.
    Mr. Charles M. Osborn, for appellant.
    This is an appeal from an interlocutory order granting a preliminary injunction which restrains the appellant from resisting the appellee in its proposed attempt to put in a switch track. The sole purpose of the bill on which the injunction is founded is to prevent such forcible interference. The bill does not even suggest any immediate or irreparable damage to the appellee.
    If there is an immediate and irreparable damage it is one which appellee has brought on itself by the recent purchase of this yard property, which might well have been acquired elsewhere; and the rule in this respect was well stated by counsel for appellee in reference to this same crossing in the case of The L. S. & M. S. Ry. v. C. & W. I. R. R., 100 Ill. 22, as follows: “A necessity created by the company for its own convenience, or for the sake of economy, will not justify an interference with or extension of previously granted franchises;” citing Packer v. The Railroad Company, 7 Har. 211, and other cases.
    The appellant is in the exclusive and undisputed possession of its four tracks and of its right of way, fifty feet in width, on which they are constructed, and has been so possessed for many years. It did not derive that possession under any contract with the appellee, or by appellee’s consent; so that appellee’s right to enter on that property, if any it has, lies in contract and not in possession.
    Appellee proposes to enter upon appellant’s possession in pursuance of this alleged contract right, and to enable it to do so the court issued an injunction restraining appellant from defending its possession. This amounts to neither more nor less than the specific performance of a contract by interlocutory injunction.
    Where there is imminent danger of irreparable injury unless the court interferes, injunctions are frequently issued to preserve the status rei pending the litigation.
    Injunctions are also sometimes issued on interlocutory orders to aid in the execution of a decree in chancery settling the rights of the parties, and sometimes in aid of a judgment at law which has finally determined those rights.
    But this is neither of these cases. The meaning of the contract is disputed, and has not been settled by any court, either of law or equity, and the preliminary injunction has issued to change the status of the property by turning the appellant out of possession and putting the appellee in possession; thus accomplishing all that appellee desired or asked for, by an interlocutory order, without even an opportunity to determine the rights of the litigants except the unreviewed judgment of the nisiprius judge who issued the order.
    If this practice can be sustained it will prove a popular method of enforcing contested claims, both on account of its speed and also because it renders all further litigation unnecessary; the complainant having accomplished all that he wished by his bill, is in a position immediately to dismiss it; no further hearing is even desirable to him; and it will be for the defendant to get back into possession again by the same process when he can find a judge who takes another view of his rights.
    Mr. Pliny B. Smith, for appellee.
   Gary, J.

This is an appeal from an injunction order of the Circuit Court in a case in which the appellees were complainants, and the appellants defendants, in the following words:

“The motion of complainant for an injunction according to the prayer of its original bill, coming on to be heard upon the pleadings, maps, affidavits, and the contract referred to in said pleadings, and, after argument, it is ordered that, upon filing a bond of 810,000, an injunction issue restraining the defendant, its officers, etc., from preventing the complainant from laying down and constructing a railway track across defendant’s tracks on blocks 34, 35, etc., except that portion of defendant’s tracks and right of way acquired from the St. Charles Air Line Bail-road, and from interfering with or in any way hindering or obstructing complainant in so constructing its track across the tracks of the defendant until further order.”

November 2, 1882, by a contract between appellees and the Chicago, Bock Island & Pacific Bail way Company as parties of the first part, and the appellants of the second part, reciting that the parties of the first part were the owners of blocks 34 and 35, etc., the parties of the first part did “ grant and convey to the said party of the second part a right of way for its four main tracks across said blocks,” describing a strip fifty feet in width as the location of the right of way, and authorized “the said party of the second part, its successors and assigns, to construct and forever maintain and operate on and along said above described parcel of land, four main tracks of its railroad; subject, however, to the following reservations, and dependent upon the performance of the following conditions, to be kept and performed by the said party of the second part.”

Among these reservations or conditions was this: “Said first party reserves to themselves, jointly and severally, and to their several successors and assigns, the right to forever preserve, maintain and operate the railroad tracks now established across said parcel of land, and to hereafter construct and forever maintain and operate, directly or obliquely, across said parcel of land, such additional tracks, at the grade of the tracks now established, as they, or either of them, may deem necessary to the more convenient transaction of the business of said parties, or either of them; but such tracks as may hereafter be constructed by said first party, or either of them, shall be so constructed as not to prevent said second j>arty from operating its said four main tracks.”

For a long time before the making of that contract, these parties of the first part had had railroad tracks running nearly north and south across these blocks, and near the east side of them. Before the contract was made the appellants had laid their tracks under a judgment they had obtained in proceedings under the eminent domain act, but that judgment being reversed by the Supreme Court (100 Ill. 21) and the cause remanded for another trial, the parties made terms with each other, and the contract referred to was made between them. The reeord does not show that the suit was then dismissed, but the fair inference is that it was, so that the only right the appellants have upon the ground is under the contract.

The tracks of the appellants cross those of the appellees from northeast to southwest, and a short distance south of that crossing the tracks of other roads cross the tracks of both appellants and appellees from east to west. It is no doubt true, as appellants allege, that the amount of business over these various tracks is very great, and the crossings, places of great danger.

The appellees have now, to the southwest of this crossing of the tracks of the parties to this suit, established a freight yard, and propose to put in a track from that freight yard connecting with their own tracks at a point north of the last mentioned crossing, and which, as proposed, will cross appellants’ tracks mainly upon the right of way granted by the contract, but slightly on a right of way acquired by the appellants from the roads owning the east and west tracks mentioned. To the construction of that proposed track the appellants will not consent, and threaten to prevent it by force, and their reason for so doing is that the use of the proposed track in connection with the freight yard of the appellees will prevent the operation of the appellants' tracks.

It is not, therefore, the construction, but the subsequent operation of the track which the appellants have to fear. The appellees have, both by their own ownership of the grounds,as recited in the contract, and the' reservation in the contract, the strict legal right to construct the track. If they are prevented from so doing the damages to them are of a kind that no evidence can fix. They are wholly uncertain, and if not merely conjectural, would rest only in opinion, without any basis of ascertainable facts from which a mathematical calculation could be made.

That large investments would lie idle,“'unless some other mode of utilizing them would be practicable, is apparent, and whether some other mode should be adopted or not, the appellees, by their contract, reserved for their own judgment.

The appellants have no right, by force, to prevent the appellees using their own property in the manner that, by contract, they have reserved to themselves. The case is not one of specific performance by interlocutory injunction. The appellees claim nothing under appellants. The appellants have an easement, and only an easement, under the appellees, and the effect of the injunction granted by the Circuit Court is to confine the appellants to the rights they acquired by their contract.

The exception in the injunction, upon which appellees have" assigned a cross-error, is right. The right of way there mentioned, appellants do not claim under appellees, and a bill in equity will not lie merely to enforce an estoppel if, by the recital of ownership of the blocks, in connection with other parts of the contract, the appellants could be held to be es-topped. Whether the use that appellants intend, or may make of the track when constructed, will be consistent with the enjoyment of the easement granted to appellants, can not now be determined. Hothing in this opinion will affect that question, if it ever arises.

The order appealed from is affirmed.

Order affirmed.


source: Caselaw Access Project

author: Moran, J.

license: Public Domain

text:
    Robert W. Hyman, Jr., Adm’r, et al. v. William H. Peters.

      Real Property—Partnership—Interest of Deceased Partner—Bill by Creditor to Compel Sale—Agency.

    1. Real estate which is purchased and held as partnership property, is, as to the interests of the several partners, personal property.
    2. Under a contract concerning the purchase of certain lands, where one of the parties advanced the cost required for the purchase and took the title thereof to himself, agreeing to advance further sums on account of taxes and of deferred payments, while the other agreed to make no charge for buying, selling or attending to the payment of taxes, they to share equally in the net proceeds upon the sale, of the property, this court holds that it was the intent of the parties to create, as between them, a joint interest in the proceeds of the land, the adventure being, in effect, a partnership transaction.
    3. The receiver of a bank to which the second party to such contract, with the assent of the representative of the first party, had assigned an interest in the proceeds of the land when sold, may maintain a bill to compel a sale and distribution of the proceeds, both of the partners being deceased.
    [Opinion filed February 13, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Losen C. Collins, Judge, presiding.
    On or about June 20, 1864, Edward Mott Robinson, of the city of Hew York, and Robert W. Hyman, who was then a real estate dealer in Chicago, entered into the following contract :

      “ Whereas, Eobert W. Hyman has purchased the undivided half of section twenty-one (21), township thirty-nine (T. 39) north, range thirteen (13), east of the third principal meridian, in Cook county, Illinois, for the joint account of himself and Edward Mott Eobinson, of the city of Hew York, for the sum of fifteen thousand (§15,000) dollars, upon the terms of six thousand (§6,000) dollars cash down, and the residue in two equal installments of forty-five hundred dollars each, payable respectively at any time within twelve and eighteen months from the 26th day of April, 1864, according to the tenor of two certain notes of that date secured by deed of trust on said premises, it being recited therein, and in said notes, that said Hyman shall have the privilege of paying each of them at the Merchants’ Savings Loan and Trust Company’s Bank, in Chicago, at any time before maturity, and that interest shall cease ten days after such payment into bank; and,
    “Whereas, the said Edward Mott Eobinson hath advanced to said Hyman the sum of six thousand dollars, for said cash payment, and doth take the title to said lands, subject to said deferred payments, and to make the same by way of advance, if it shall be necessary or expedient so to do hereafter, and to pay taxes thereon by way of advance.
    “How, therefore, this agreement witnesseth, and it is hereby mutually agreed by and between the said Edward Mott Eobinson and the said Eobert W. Hyman, as follows, to wit:
    “Fvrst. Said Hyman shall sell said premises within one year from the date hereof, unless otherwise agreed between the parties hereto, and shall make no charge for buying, selling or attending to the payment of taxes on the premises.

      “8eco?id. Said Eobinson shall advance all such moneys as may be required to pay taxes and deferred payments on said lands before sale and conveyance, so far as may be necessary so to do.
    “ Third. Hpon the sale of said premises the proceeds shall be distributed as follows:
    “ 1st. Said Eobinson shall be reimbursed all moneys advanced and to be advanced on said premises by him, with interest at the rate of seven per cent, per annum.

      “ 2d. The balance of the proceeds of such sale shall be equally divided between the respective parties hereto.

      “ 3d. An account of sales and of proceeds shall be made and rendered by said Hyman to said Eobinson within ten days after such sale is made, if made by said Hyman.
    “ Fourth. And the said Eobert W. Hyman for himself, his heirs, executors, administrators and assigns, doth covenant and agree hereby, to and with the said Edward Mott Eobinson, his heirs and assigns, that whenever sale is made of said premises, that he, the said Eobinson, or his heirs or assigns, shall in any event be reimbursed the full amount of all advances made and to be made on said lands, with interest thereon at the rate of seven per cent, per annum.
    “ In witness whereof, we, the said Edward Mott Eobinson and the said E. W. Hyman, hereby bind oilrsel.ves, our heirs and assigns, to the foregoing agreement, and set our hands and seals.
    “Hew York, June 20, 1864,
    “ Edward Mott Robinson, [seal.]
    “ E. W. Hyman, [seal.]
    “Witness to both,
    “ Wm. E.'Watson.”
    About July 14, 1865, said Eobinson died in the city of Hew York, testate, and seized of the legal title to the premises in said agreement described. By his will, which was duly probated, he devised said premises to Henry A. Barling, Abner H. Davis and Edward D. Mande!, trustees, to hold upon trusts in the will expressed. On or about September 24, 1867, said trustees and said Eobert W. Hyman entered into an agreement as follows:
    “ Whereas, Edward Mott Eobinson (since deceased), and Eobert W. Hyman, who were parties to the agreement of which the foregoing is a copy, did also agree that the remain-ins: undivided half of section twenty-one (21), township thirty-nine (39) north, range thirteen (13) east of the third principal meridian, in Cook county, Illinois, should be purchased at the price of seventeen thousand and fifty (§17,050) dollars, for their joint account and* benefit in all respects, on the same terms as specified in the foregoing instrument.

      “ And whereas, at the time such purchase was consummated, said Edward Mott Robinson had deceased and the title for said additional purchased interest of one-half of said section was at the time, namely, about the 24th day of June, 1865, conveyed to the undersigned, Henry A. Barling and Abner H. Davis, executors of Edward Mott Robinson, by whom the purchase money paid was advanced.
    “ Now this memorandum witnessetli, in pursuance of the agreement made between said Hyman and said Robinson in his lifetime, that the said last purchased undivided half of said section is held by tlie said Henry A. Barling and Abner H. Davis, as executors as aforesaid, upon like terms and conditions, so far as respects the share and interest of said Hyman in the profit or loss to result from said purchase, as the said undivided half first purchased was held by said Edward Mott Robinson under the said foregoing agreement of June 20, 1864, and said Hyman agrees in like manner as he did in respect to the first purchase, that said executors shall be reimbursed the amount of all advances they have made or shall make for or in respect of said last purchased half, with interest thereon at the rate of seven per cent, per annum.”
    “And it is further understood and agreed between the parties that in respect of both said parcels or undivided halves purchased as aforesaid, the executors of, or trustees under the last will and testament of Edward Mott Robinson, have a right at any time or from time to time, in their discretion, to sell the whole or any part or parts of said premises for such price as they may deem expedient, and said Hyman shall be bound by the results of such sale.
    “ It is further agreed, in respect of both said purchases? that if within one year from this date there shall not have been enough received from sales of said premises to reimburse said Robinson’s estate for his and its advances, with interest, the executors, in making up their eventual account for reimbursement of the estate for its advances and interest, shall be entitled to state the account of advances computed with interest up to the end of a year from this date, the whole principal and interest drawing interest from that time, and so from that time forth state the account with annual rests, adding in the accrued interest, provided always that in case of a loss instead of a profit accruing on the purchase, such annual rests shall not be made, but simple interest only for the whole time without rests shall be charged.
    “ In witness whereof, the said parties have hereunto set their hands and seals the 24th day of September (1867) eighteen hundred and sixty-seven.
    “ Henry B. Barling, Ex. [seal.]

      “ A. H. Davis, Ex. [seal.]
    “ ¡Robert W. Hyman. [seal.]”
    The money necessary to purchase the premises'and to pay the taxes, make fences, repair buildings upon the land, etc., was from time to time paid out of the estate of Robinson, but the property was cared for and managed by Hyman until he died, in May, 1885, he drawing on the executors for his disbursements and rendering yearly accounts with interest computed and balance brought down.
    Hyman became indebted to the Exchange National Bank of Norfolk, Va., in about the sum of $100,000, and while so indebted he caused to be delivered to said bank about the dates thereof the two writings following:
    “New York, Oct. 1, 1883.
    “ Messrs. John B. Whitehead, President, and Geo. M. Bain,
    Cashier, of the Exchange National Bank, Norfolk, Va.
    “ Gentlemen: As the executor of the estate of E. M. Robinson, I hold with my co-executor, Abner H. Davis, title to 640 acres of land, being section 21, town of Cicero, Cook county, Illinois, under certain agreements made by and between Mr. Robinson during his lifetime, and Mr. R. W. Hyman, and also between the executors and Mr. R. W. Hyman.

      “ Mr. Hyman is, upon a sale of said property, to receive one-half of the net profits, as provided in said agreements, arising from such sale.
    “ Mr. Hyman has requested of me that whenever a sale is made of said property after paying all taxes, liens and assessments, to hold for account of your bank such sum, not exceeding $100,000, as the firm of Hyman & Dancy, Norfolk, Va., or Dancy, Hyman & Co., Hew York, may be owing to your bank at the time of realizing from such sale.
    “This I hereby agree to do, Mr. Hyman joining me in the same with his approval.
    “Very respectfully yours,
    (Signed) “ Henry A. Barling, Executor ”

    “ I approve the above.
    (Signed) “ B. W, Hyman.”
    “Hew York, July 5, 1884.
    “ Messrs. John B. Whitehead, President, and Geo. M. Bain,
    Jr., Cashier, of the Exchange Hational Bank, Horfolk, Va.
    “ Gentlemen: As the executor of the estate of E. M.
    Bobinson, I hold with my co-executor, Abner H. Davis, a title to 640 acres of land, being section 21, town of Cicero, Cook county, Illinois.
    “Under certain agreements made by and between MrBobinson during his lifetime and Mr. B. W. Hyman, and also between the executor and Mr. B. W. Hyman, Mr. Hyman is, upon the sale of said property, to receive one-half. of the net profits, as provided in said agreements, arising from such sale.
    “ Mr. Hyman has requested me that whenever a sale is made of said property, after paying all taxes, liens and assessments, to hold for account of your bank such sum, not exceeding $100,000, as may be found to be due to him.
    “ As Mr. B. W. Hyman, F. M. Hyman and Geo. L. Arps, comprising the firms of Hyman & Dancy, Horfolk, Va., and Dancy, Hyman & Co., Hew, York, is now about to be dissolved, but are still owing said bank by their four several and joint notes for $25,000 each, payable twelve months after the fifth of July, 1884, without interest, this understanding is to apply to the renewal of any part or the whole of said notes from time to time, as may be agreed upon.
    “ This I hereby agree to, Mr. Hyman joining me in the same with his approval.
    “ Very respectfully yours,
    “ Henry A. Barling,
    “for self and A. H. Davis,
    “Ex’rs.”
    “ I hereby approve the above. B. W. Hyman.”

      From the time of the purchase of the property Hyman had great faith in the ultimate success of the speculation, and constantly advised postponing the sale of the land, and raised the price of it very greatly from year to year, and the executors, believing his judgment to be better than their own, followed it, and acquiesced in the course which he advised. On or about May 15, 1885, said Hyman died intestate, and an administrator has been appointed for his estate.
    In May, 1885, the Exchange National Bank of Norfolk, Virginia, became insolvent, and appellee was duly appointed a receiver thereof, and afterward filed his bill in the Circuit Court of Cook County, setting out the contracts and agreements heretofore set forth, and alleging that said Hyman had an equitable interest in said lands purchased under said contracts; that the title was held by the executors of said Bobinson upon the trusts arising from the purchase under said contracts; that the administrator of said Hyman had not paid the balance of indebtedness due to said bank, and has taken no steps to sell the lands mentioned in said contracts; and that the executors of Bobinson refused to sell the lands in execution of the trusts arising from said agreements, and that they claim to hold the lands, and not to sell them till they see fit and that they intend to hold the lands, so as to allow the indebtedness due to them upon the transactions, increased to such an amount by the addition of compound interest as to exhaust the amount that may be obtained for said premises when finally sold. The bill prays that the amount due to the receiver may be ascertained and decreed to be due; that the amount due to said executors under and by virtue of the agreements with reference to the purchase of said lands be ascertained; that the said lands be decreed to be sold and the proceeds distributed according to the rights of the parties.
    The bill makes the executors of Bobinson, and the beneficiaries under his will, the administrators of Bobert W. Hyman and his heirs at law, and various other persons, defendants to the bill.
    The court decreed the relief prayed for, ordered the sale of the lands, the payment of the executors of Bobinson of all accruing to them under the contracts for the purchase of the lands, and from the balance of the proceeds of the sale of said lands, directed the payment of the amount found due to complainant as receiver of said Norfolk bank.
    Appellants have brought the record of this court and assigned error thereon.
    Messrs. Paddock, Aldis & Wright, for appellants.
    Properly construed, the contracts show that Robert W. Ilyman at no time had an interest in the land; nor was he the beneficiary of any right, trust or power whereby he could “ require ” it to be sold by the owners. It necessarily follows that he could neither assign nor pledge any interest in the land; nor could he vest another party with a right to require a sale. His function was to sell the land himself, and thereby earn the share in the profits. Stow v. Robinson, 24 Ill. 597; Stevens v. Faucet, 24 Ill. 483; Porter v. Ewing, 24 Ill. 617; Fawcett v. Osborne, 32 Ill. 411; Smith v. Gear, 59 Ill. 386; Burton v. Goodspeed, 69 Ill. 237; LeMoyne v. Quimby, 70 Ill. 399; Robbins v. Laswell, 27 Ill. 365; Bates on Partnership, Vol. 1, Secs. 41, 43.
    In cases of agency for sale, it has been held by our courts that the agent was subject to discharge, like any other employe, the principal, of course, being liable for any damage caused by the groundless termination of the agency, or any other breach of the contract. The case of Stow v. Robinson, 24 Ill. 597, is in point.
    In Porter v. Ewing, 24 Ill. 617, the land was purchased with the money of the principal, title taken in the principal’s name under a contract by which the principal was to place money in the hands of the agent, who ivas to buy land with it in the name of the principal, and for his skill, care and trouble in the business was to have as compensation one-lialf the profits derived from the operations.
    The Supreme Court say: “It seems to us there can he no doubt that, under this contract, Porter had and was to have no interest in the land or other property purchased with this money. He had an interest in one-lialf of the profits, and in that only. This was a mode of compensation for his services. There were no profits until the final settlement of the concern, properly speaking, unless the parties chose to treat a part of the property or its proceeds as profits and divide it as such. While the business was still in progress the value of the property might be more than the $1,000 one day and another day less. To-day there might be an apparent profit and to-morrow a loss.”
    In Smith v. Gear, 59 Ill. 386, Smith employed Gear to manage a farming and stock-buying business, and to buy stock with funds furnished by Smith on speculation, 'Gear to have one-half the net profits as compensation for his services, and Smith the other. In the course of this business, Gear purchased some promissory notes, secured by mortgage, and paid for them with funds furnished by Smith. The mortgage having been subsequently foreclosed, the mortgaged lands were struck off in the name of Smith, upon his bid. Gear filed his bill asserting an interest in the lands sold, and praying a partition of the land upon the terms of contribution, or, in the alternative, that the land should be sold, and the excess of proceeds over the cost divided equally between the parties. The court below ordered a sale of the property, and Smith appealed. The Supreme Court say: “It seems to us to be clear that, under the agreement, the land itself would belong to the appellant, and the interest of the appellee would only attach to the net profits arising upon a sale of the property. He could take no interest in the estate itself. The true construction of the agreement under which the parties were operating in stock, is, that the stock belonged to the appellant, and the only interest of the appellee was his just share of the net profits. It was purchased for him with his funds, and the appellee had no interest, unless profit was realized upon a sale. The land was bought under a like agreement, and was held upon the same terms. The. prayer of the bill, that the title to one-half of the land should be perfected to the appellee, upon the payment of the just amount that should be found due to the appellant for the purchase money and expenses advanced, was properly denied by the Circuit Court. It would have been competent for the parties themselves to have declared the profits in lands; but this they did not do, and it is not in the power of the court to make any division of the estate and decree that any portion of it is profits. It would, in effect, be to make a new contract between the parties. Porter v. Ewing, 24 Ill. 619. The principal question that arises upon the record to be considered is whether the appellee, under the bill filed, and on the evidence taken on the hearing, was entitled to have the lands sold, and a division of the profits, if any, declared. It is insisted that it is necessary for the appellee to show by the evidence, that a profit would result from a sale in order to give the court a basis on which to rest its decree. It is a sufficient answer to this objection that it was the agreement of the parties that the land should be sold. Such was the contract in regard to the stock, and the land was purchased on the same terms.”
    In the case of Smith v. Gear we have an existing agency, and an agent ready and willing to go forward and complete the business of his employment in accordance with the contract. The contract was, the property “ should be sold.” That is the fact which distinguishes that case from the case at bar, and also from the case of Stow v. Robinson, 24 Ill., supra. In Smith v. Gear the court was called upon to make no new contract for the parties, but simply to compel in favor of an agent ready and willing to perform the execution of a valid and existing agreement. In the case at bar, the court of equity, in plain view of the fact that the consideration has been irrevocably lost through the death of the chosen agent, forces the principal to accept the services of its own master, in disregard of the terms of the contract. This is the precise thing which the Supreme Court refused to do in the case cited, viz., make a new contract for the parties. The thing agreed in the present case is, that, in default of sale by Hyman, the trustees may determine time of sale and price at their discretion. This right has been stripped from appellants by the decree of sale.
    In Le Moyne v. Quimby, 70 Ill. 399, the Supreme Court of this State again construed an agency contract analogous to the one now under discussion. In that case land was bought by Ricketson, the principal, under an arrangement with Tier-nan, tire agent, providing that Tiernan was to hunt up and buy Jand, and that in consideration of Tiernan’s services in securing the land, if it should be sold for a specified price, Tiernan should have one-half the net profits after deducting purchase money, taxes, costs, expenses, and ten per cent, interest. If sold for less than the specified price, Tiernan was to have only one-fourth of such net proceeds, but too sale was to be made without Ricketson’s consent, and he reserved the right to sell at any time and for any price he might see fit. The court will note that when Tiernan had hunted up and bought the land, as the contract expressed it, he had done all that was necessary to entitle him to claim his share of the profits whenever Ricketson should sell the land. Ricketson thereafter disposed of the land by his will to his wife and daughter, who afterward conveyed to Le Moyne. Of the contract itself, the Supreme Court say: “We can only regard this as a personal contract. It gave Tiernan no title to or interest in the land. It was an agreement to pay Tiernan for his services in procuring the land for Ricketson, a certain part of the profits upon a sale, in lieu of a definite and fixed sum of money. By this contract, Tiernan had no control of the land or authority to sell it. At such time as Ricketson saw proper to sell and dispose of the land, in the event there should be any profits, then Tiernan should share in them. The cross-bill and decree proceed upon the ground that Tiernan, by the agreement, acquired an interest in the land, and not in the proceeds to be realized upon a sale. This is erroneous.- Stow v. Robinson, 24 Ill. 534; Porter v. Ewing, 24 Ill. 618. These authorities settle this question beyond any dispute, and, although other courts may have held otherwise, the decisions cited, supra, are based upon principles so well settled that they can not be shaken.”
    In the present case the owners, whose interest in the question of profit may be supposed at least to equal in amount that of appellee, claim a right to sell at their own discretion, as to time not only, but as to price as well; and they seriously object to surrender that discretion to the court or its officer.
    That appellee desires to wind up his bank is natural and proper, but the fact affords no reason why the owners should desire to wind up their ]and purchase, unless the appellee can produce their agreement covering the point.
    It is reasonable to conclude, not only .that the interest of Mr. Hyman was a personal one, and confined to profits, but that, without violation of the contract, there can be no profits derived under the present decree of sale.
    If it be supposed that the interests of Mr. Hyman have devolved upon-his heirs or administrators, in the sense that they can take his place as agents, a succession denied in Stow v. Robinson, supra, that supposition falls far short of justifying the decree in this case, because there is left in the contract the same condition as to mode of sale which was put into it by the parties originally.
    Conceding, for the sake of argument, that Mr. Hyman had an interest in the land as joint owner, partner or otherwise, held in trust for his benefit by the holders of the legal title, or in profits of .a sale, when made, and that his heirs, representatives or assigns might assert such interest by a proper bill, it by no means appears by the letters of Mr. Barling (the only proof on the point) that such interest was pledged to the bank.
    Messrs. Smith & Pence, for appellee.
    The agreement of June 20, 1864, between Hyman and Bobinson, and the agreement of September 24, 1867, between Hyman and Bobinson’s executors, reciting that the land was purchased for their joint account and benefit, constituted Hyman and Bobinson, and subsequently Hyman and Bobinson’s executors, partners in the transaction, with all the incidents of a copartnership. Nicoll v. Ogden, 29 Ill. 323, 377; Nicoll v. Miller, 37 Ill. 387; Nicoll v. Mason, 49 Ill. 358; Faulds v. Yates, 57 Ill. 416; Simpson v. Leech, 86 Ill. 286; Morrill v. Colehour, 82 Ill. 618, supra; Story on Part., Secs. 92 and 93, and note on pp. 150-164; Morse v. Richmond, 97 Ill. 303.
    Upon the death of Hyman, the partnership existing between him and Bobinson’s executors was dissolved, ipso facto. Bobinson’s executors thereupon became trustees for Hyman’s representatives, and those claiming through him, and it became their duty to close.up the partnership without delay. Story on Part., Sec. 317; Nelson v. Hayner, 66 Ill. 487; McKean v. Vick, 108 Ill. 373.
    Where the legal title of land acquired by a firm is taken in the name of one partner, he will hold the same in trust for the interest of the several members of the partnership on final settlement of the partnership affairs. The interest of each partner will be for whatever claim he may have against the firm upon a final accounting, and after the payment of its debts and the claims of his co-partners. Railsback v. Lovejoy, 116 Ill. 442.
    Mauck v. Mauck, 54 Ill. 281, was a bill in chancery by defendant in error against plaintiffs in error for an account and settlement of a partnership between defendant in error and John Mauck, the ancestor of plaintiffs in error.
    There was real estate belonging to the firm, embracing three different tracts. The court found the firm to be in olvent and ordered the defendant in error to collect the outstanding debts, and sell the real estate at either public or private sale.
    It was assigned as error that the court decreed the sale of real estate at private sale.
    “We now come to consider the question whether the court had power to license the surviving partner to sell the real estate purchased by the firm, and held jointly by them, at private sale, or, if the power was possessed by a court of equity, it was properly exercised in this case. Taking the facts found by the court to he true, * * * it is apparent that a sale of the realty was necessary and eminently proper, to pay the debts due from an insolvent firm. * * *
    “The question presented is purely one of power in the chancellor to decree such a sale. We have been referred to no authority which denies or questions the power, nor are we aware that any such can be found, and, in the absence of adjudged cases, we must test the act by general principles. Equity has the undoubted right to compel one person to convey land to another, when equity and good conscience require it; or it may cancel deeds or enjoin the assertion of title. In truth, equity may avail itself of a variety of means or instrumentalities for the purpose of doing complete justice.
    “ Again, this was firm property, purchased and held as such. This being so, in equity it partakes of the character of personalty, mid was, in many respects, free from the incidents of realty. Nicoll v. Ogden, 29 Ill. 323. Being purchased and held for firm purposes, it partook of the character of personalty to the extent that it was under the control of the chancellor in making a final adjustment of the affairs of the partnership, whether in stating an account between the partners or in marshaling the assets among creditors. Being impressed with the character of partnership assets, we are inclined to hold that the court below might intrust the surviving partner with the discretion of selling the property at public or private sale.”
    In the present case the court did not follow the course pursued in Mauck v. Mauck, but framed its decree in accordance with Smith v. Gear, supra. It found that a reasonable time had elapsed. It first adjusted " the equities between the parties as to the amounts respectively due to each of them for money advanced in regard to the purchase and other expenses for the benefit of the enterprise;” it provided that the property should not be “ sold unless when offered it would bring more ” than the amount due to the appellants, and reserved the entry of an order of distribution until the coming in of the report of sale. The administrator, being the legal representative of Hyman, and his heirs, were parties to the suit. The heirs were proper, but not necessary parties.' ¡Neither the administrator nor the heirs complain of the decree.
    The complaint comes from the other side. Mrs. Green and her trustees claim that they may hold this land until they see fit to sell. They say, in other words, that they are content to let their credit grow and gain as against the land until the rights of others shall have been destroyed.
    This proceeding is analogous to that of an execution creditor of an individual partner who levies and files a bill in aid. Story on Part., Secs. 260-263, and notes; Newhall v. Buckingham, 14 Ill. 405.

      Bates on Partnership, See. 927, says: “ An assignee or purchaser of the interest of a partner, can have a hill for an accounting against thé remaining partners if they refuse to render an account. A mortgagee of the interest of the one partner may, in his action to foreclose, also ask an accounting to determine his mortgagor’s interest in the firm, instead of foreclosing first and instituting another suit for an accounting, though he he the assignee holding the interest as security only. So of the assignee of an assignee. That an assignor can not also be a party, has been held.” Citing Strong v. Clawson, 10 Ill. 346, and other cases.
    “ Although a partner can not, by transferring his share, force a new partner on the other members of the firm without their consent, there is nothing to prevent a partner from assigning or mortgaging-his share without consulting his co-partners; and if a partner does assign or mortgage his share, he thereby confers upon the assignee or mortgagee a right to payment of what, upon taking the accounts of the partnership, may be due to the assignor or mortgagor.” Lindley on Partnership, Ed. 1888, p. 364.
   Moran, J.

The principal contention arises on the construction of- the contracts between Robert W. Hyman and Robinson, and between said Hyman and Robinson’s executors, set out in the statement of facts. Appellants maintained that the contracts show that said Hyman had no interest in the land, and that he was not the beneficiary of any right or trust therein; that he did not contribute or undertake to contribute anything toward the capital invested, nor h> pay any part of the expenses or losses that might attend the enterprise. His only function with reference to the land, it is said, was that of agent. He was to use his skill and judgment in selling the land. If he sold the land he would be paid for his services by a share of the profits after Robinson should be reimbursed for all advances; until he did sell the land, he had no claim for his services, and the services contracted for being personal, and Hyman having died, the sale could not be made by another, as that would not be giving to the principal the skill and experience for which he contracted.

It is sought to govern this case by Stow v. Robinson, 24 Ill. 532. The contract in that case recited that Robinson had purchased the land, and that it was to be subdivided, and that Rattray should sell the same as soon as practicable at his own expense, and after Robinson had received from the proceeds of the sale the money" paid for the land, with the interest thereon, the balance arising from such sale was to be equally divided between Robinson and Rattray. Rattray died before completing the sale of the land, and it was held by the Supreme Court that by the terms of the agreement Rattray had engaged to sell all the land, and the value of his services in doing so was to be measured by one-half the profits, and that as he had failed to completely perform the contract, a specific performance of it would not be decreed against Robinson at the suit of Rattray’s heir at law. It is very clear that by the contract Rattray acquired no interest in the land itself. The parties to the contract had no such intention. This is not true of the contract in this case, as we construe it. The first contract between Hyman and Robinson recites that Hyman has purchased the undivided half of section 21 for the joint account of himself and Robinson, and the evidence shows that Hyman had taken the title in his own name.

To carry out this adventure for joint account that had been entered upon, Robinson advances the cash and “doth take the title to said land,” and agrees to advance such further moneys as may be required to pay taxes and deferred payments until the lands shall be sold. Hyman agrees to make no charges for buying, selling or attending to payment of taxes, and covenants for himself and his heirs that whenever the premises shall be sold said Robinson shall in any event be reimbursed the full amount of all advances made on said lands, with interest.

Hyman agrees-to sell the land within one year, unless otherwise agreed between the parties; but we think it very clear that it was contemplated that sales might be made by Robinson, and in the second contract it is expressly provided that sales-might be made by the trustees; and by the terms of both contracts, upon the sale of the premises, by whoever made, half of the proceeds over and above the amount necessary to reimburse Robinson or his estate should come to Hyman.

It was, in our opinion, the manifest intent of the parties to these contracts to create, as between them, a joint interest in the proceeds of the land, and that the legal title ivas taken and held by Robinson and his trustees with that intention and upon that trust. The adventure was, in essence and effect, a partnership transaction, and though the stock in trade was real estate, it was as to the interests of the several parties, personal property. Nicoll v. Ogden, 29 Ill. 323.

An authority very much in point for construing the contracts in question as partnership transactions in land, is found in Seymour v. Freer, 8 Wall. 202, cited by counsel for appellee. The case under consideration, we think, furnishes clearer ground for the application of the doctrine, for the reason that there it had to be implied from the whole contract that the purchase of the lands was on joint account, while here it is declared by the parties in express terms that such is the motive of the transactions.

We think that the receiver of the bank had, under the evidence in the record, a standing in a court of equity to compel the sale of the lands, and that the decree nisi, eta, of the Circuit Court in ordering the sale of the lands and the payment of the debt due from the estate of Hyman to the bank out of the portion of the proceeds that remained after satisfying the claims of Robinson’s estate, in accordance with the contracts, was correct, and the same will therefore be affirmed.

Judgment affirmed.


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    Ernest F. Smith et al. v. George R. Grant.

      Payment—Condition—Action to Recover Amount Paid—Burden of Proof.

    1. In general, one who brings an action against another must entitle himself to recover by making proof of his own right. The burden of proof as to any issue is upon him who asserts the affirmative thereof.

      2. In an action to recover a sum of money alleged to have been paid to the defendants on a promise to return it, if, upon an accounting, it should be found that the plaintiff was not indebted to them, the burden of proof is on the plaintiff to show that he was not thus indebted.
    [Opinion filed February 13, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. Edward W. Russell and Willard M. McEwen for appellants.
    Mr. L. M. Hodges, for appellee.
   Moran, J.

This action was brought by appellee to recover back the sum of §375 paid to appellants by one Hunter, who, in paj ing the money, acted as the agent of appellee. Appellants made a claim against the appellee for a loss growing out of a deal upon the board of trade, and so proceeded under the rules of the board that a membership in the said board which appellee held, could not be transferred without the consent of appellants: Appellee, who was at the time in Europe, instructed Hunter to pay the disputed claim, but to do so in such manner as that he could, on his return, sue at law for it. Hunter testifies that he said when he paid the money that he “ should pay them (appellants) the money, and when Mr. Grant retm ned and they had an accounting, if the money did not belong to them it would be returned to Mr. Grant.” The evidence by appellants as to what was said when the money was paid differs slightly from the statement of Hunter, but the difference is not material to the point on which the case turns on the present appeal.

The court gave to the jury the following instruction for plaintiff: “If the jury believe from the evidence that the witness, Hunter, paid to the defendants the sum of money sought to be recovered in this suit, upon the promise and undertaking of the defendants that they would hold the said sum for and pay the same to the plaintiff, Grant, if, upon an accounting between the plaintiff and defendants, it should be found that the plaintiff was not indebted to the defendants, then the jury are instructed that the only remaining question for the jury to determine is whether or not the plaintiff was indebted to the defendants at the time that witness Hunter paid the money to the defendants. And the jury are instructed that the burden is on the defendants to show that the plaintiff was so indebted to the defendants.”

In this the court erred, in that the burden of proof was thereby imposed upon the wrong party. As a general rule the one who brings an action against another must entitle himself to recover by making proof of his own right, instead of relying on the want of proof of right in his adversary.

The burden of introducing evidence on any issue is upon him who asserts the affirmative of that issue—that is, the affirmative in substance, not merely in form; and so it not unfrequentlv occurs that to establish the affirmative of the issue involves the proof of negative allegations. Best’s Prin. of Ev., Sec. 271. Such is the case in actions for malicious prosecution, for instance, where the plaintiff must prove that probable cause for the prosecution did not exist.

How the allegation here is by the plaintiff, that a debt is due to him by the defendants. They rest upon a simple denial. It is very clear that plaintiff must introduce evidence that establishes his claim. Simply proving that the money was paid to them, and that they promised to pay it back, if, upon an accounting it should be found the plaintiff did not owe them, could not entitle plaintiff to a verdict. He-must go further and introduce evidence tending to show that he was not indebted to them. If he was bound to introduce evidence on any issue before he could be entitled to a verdict, it follows that as to such issue the burden of proof was upon him. Beardstown v. Virginia, 76 Ill. 44; Smith v. Davies, 7 Car. & P. 307; Shickler v. Burkholder, 47 Penn. St. 476; Reu v. Freeman, 33 Miss. 202; Wharton on Ev., Sec. 356, and cases there cited.

For the error in giving the said instruction the judgment must be reversed and the cause remanded.

Reversed and remanded.


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    James W. Reedy v. The Chicago Vinegar and Yeast Company.

      Landlord and Tenant—Bill to Cancel Lease—Remedy at Lata—Injunctions.

    1. A bill in equity does not lie to secure the cancellation of a lease and to enjoin proceedings at law to recover rent thereunder, on the ground that the commissioners of public buildings have condemned the building in question because the sills are rotten, it being alleged that they were so when the lease was signed and that the building„was in an untenantable condition and wholly unfit for the purpose for which it was let.
    2. In the case presented, if the allegations of the bill are true, the complainant has a complete defense at law to actions for rent under the lease.
    [Opinion filed February 13, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Loren C. Collins, Judge, presiding.
    Messrs. George R. Grant and Gregory, Booth & Harlan, for appellant.
    “ A lease or other conveyance that is entered into through fraud on the part of the lessor or lessee, may be avoided upon that ground, upon the principle that fraud vitiates all contracts.” Wood on Landlord and Tenant, p. 174.
    In such case fraud may consist of intentional misrepresentations on a material point, or it may consist in positive statements of facts as to the truth or falsity of which the party is ignorant, but which it is his duty to know. Mitchell v. McDougall, 62 Ill. 498; Allen v. Hart, 72 Ill. 104; Ruff v. Jarrett, 94 Ill. 475 ; Smith v. Richards, 13 Pet. (U. S.) 30.
    The lease should have been canceled and the prosecution of suits for rent should have been enjoined on the ground of eviction.
    “Any actual expulsion of the tenant, or intentional disturbance by the landlord, or by any other person acting by his authority or by virtue of a legal right vested in them in any manner, which so seriously disturbs the tenant’s possession as to compel an abandonment of the premises by him, or which deprives him of their beneficial enjoyment, -amounts to an eviction, and the rent is suspended from the time of such disturbance.” Wood, Landlord and Tenant, p. 793.
    Thus, a tenant may vacate premises infected with sewer gas—the landlord having been notified and neglected to remedy the evil. In such a case there is a constructive eviction, and the tenant need not pay rent. Bradley v. Goicouria, 67 How. Pr. (N. Y.) 76.
    Messrs. Bisbee, Ahrens & Decker, for appellee.
    The law raises no presumption of an intentional fraud, or of wrong-doing, from the mere fact that representations, however material, turn out to be untrue. Bornett v. Stanton, 2 Ala., 181.
    Cases where representations are made in good faith, being based on wliat is believed to be reliable information, are to be distinguished from those cases where representations have been made with reckless disregard of the truth, or upon a claim of some special knowledge, as that of an expert. Representations made in good faith, based upon a reasonable foundation for belief, whether they turn out to be true or not, do not amount to a fraud. Taylor v. Little, 26 Ohio, St. 428.
    The case, as made by appellant, showed only an expression of opinion, even as to the foundations. This is not, in general, a sufficient ground for setting aside a contract. Douglass v. Litler, 58 Ill. 342; Warren v. Doolittle, 61 Ill. 171; Fisher v. Dillon, 62 Ill. 379; Shackelton v. Lawrence, 65 Ill. 175.
    There is not a particle of evidence showing any fraudulent concealment. There was no special reason why Follett should have made disclosures. The case was not one requiring a different rule from the usual one of caveat emptor.. Watt v. Galliard, 67 Ill. 513; Roper v. Sangamon Lodge, 91 Ill. 518.
   Moran, J.

Appellant filed this bill of complaint, in which he alleged that in February, 1884, he leased from appellee certain premises; that he did not lease for his own use, and never occupied the building, but took the lease to secure the rent to the appellee. That the real lessees were Jacky & Reese, which fact was well known to appellee. That said Jacky & Reese took possession of the premises, and carried on business; that the rent was paid by said occupants to appellee; that appellant never exercised any control over the premises, and •had no connection with them except as security for the payment of the rent; that in November, 1886, notice was given to appellant by the commissioners of public buildings that the building was condemned; that the defect in the building was caused by the rotting of the sills, and that said sills had been in an unsafe condition and rotten for a long time, and were so at the time of signing the said lease; that said defect was not patent, but was concealed by the flooring, and discoverable on examination; and that, at the time of making the lease, said building was in an untenantable condition, and wholly unfit for the purpose for which it was let. Appellant had no notice of such latent defect until the building was condemned, but that appellee knew of such defect; that the condition of said building was such that to repair it would be virtually to rebuild it. The prayer is that the lease may be canceled, and a suit at law commenced by appellee against appellant to recover rent alleged to be due should be enjoined, and that appellee should be restrained from bringing any other suits to collect rent under said lease. The bill was answered, and the case heard on the pleadings and evidence by the chancellor, and decree rendered dismissing the bill for want of equity.

The decree is right and must be affirmed, if for no other reason, upon the ground that if all the allegations are true, he has a complete defense at law against actions for rent under the lease, and therefore he had no ground whatever for appealing to equity for relief. We have examined the evidence, however, which was heard by the court below, as the same is disclosed in the record, and we are of opinion that the court found the facts in accordance therewith, and that the material allegations of the bill find no support in the evidence adduced. The decree of the Superior Court will be affirmed.

Decree affirmed.


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    National School Furnishing Company v. William O. Cole et al.

      Sales—Warranty—School Bonds—Genuineness of—Agency—Express Company.

    In an action to recover the price paid for certain school bonds which were forged, it is held: That the evidence does not sustain the finding of the court helow that the defendant was the vendor of the bonds; that the plaintiffs purchased of the forwarder through the express company; and that they determined for themselves the genuineness of the bonds and the regularity of their issue. /
    [Opinion filed February 13, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthc ny, Judge, presiding.
    Messrs. Osborne Bros. & Burgett, for appellant.
    Messrs. C. H. & C. B. Wood, for appellees.
   Moran, J.

This i an appeal from a judgment rendered against appellant in ti íe court below for the amount paid by appellees for certain 1 Dakota school bonds purchased by them, which turned out to t question in the case in appellant ? e forged and spurious. The controlling did appellees purchase the bonds from

Appellees were bah selling bonds, and a] business. Appellant kers and were engaged in buying and ipellant was in the school furniture, had agents throughout the Northwest selling its school furniture, and when a district or town was offering its bonds for sale, appellant would inform appellees, and in some instances, would arrange to have bonds sent on to Chicago for appellees to purchase at a fixed price. Appellant sometimes sold a bill of school furniture and got its pay from the proceeds of the sale of bonds, and to that extent it had an interest in the sale of such bonds, but there is no evidence in this record that appellant ever actually purchased bonds; on the contrary the evidence tends to show that its agents procured bonds to be sent to Chicago to be purchased by appellees at a price which appellees had agreed to pay for them. The particular transaction involved in this suit was in substance as follows:

On December 20, 1886, the American Express Company sent to appellant the following notice on a postal card:

“We have received to your address, and hold, at your risk, an express package, charges §1.50, collection $630; total to pay, $631.50. Please call for same and present this notice, or fill out the order below. Strangers must be identified.
“ O. W. Barrett, agent.”

The notice was sent by appellant’s secretary to appellees, accompanied by the following note :

“ National School Furnishing Company, manufacturers, importers and publishers, Nos. 141 & 143 Wabash ave., Chicago.
“John S. Kendall, President.
“ Thomas B. Seavey, Secretary and Treasurer.”
“ Chicago, Dec. 21, 1886.
“Hr. Coxxin—Dear Sir: There are $700 in bonds at the American Express Company’s office—see attached card. If you take them, pay the Ex. Co. $631.50, and give us the balance, $82.50. I am sorry to trouble you to make this trip, but see no way around it.
“Yours truly,
“ Thomas B. Seavey.”

Appellees sent their book-keeper to the express office with the card and above note, and the package of bonds was opened and inspected by him, as well as the certificates which accompanied the bonds in the same envelope, purporting to show their authenticity, and that the requirements of law had been duly observed by the officials of “Hill School Township,” “County of De Smet,” Dakota, in issuing them. Appellees paid the amount of money required to the express company and took the bonds, and sent a check for $82.50 to appellants, with the following letter:

Chicago, Dec. 22, 1886.
“As requested, we have paid the express company $631.50, and herewith hand you our check for $82.50 in payment of $700 of bonds of Hill township, De Smet county, Dakota, and also hand you a letter which" we find with the bonds, signed by George Benz, treasurer. Will you please inform Mr. Benz that you have made bonds and interest payable at the Chemical Mational Bank, H. Y.? It is important that he should have notice of this fact; please do not neglect it.”

The letter from George Benz mentioned was, so far as its contents is shown by the evidence, an order to appellant for school furniture to the amount of $82.50. Appellees had purchased other Dakota bonds that had been sent on to appellant, and such bonds as came to appellant which appellees did not want were returned to the parties who sent them. There was an arrangement between appellees and appellant, by which appellees were to pay for such seven per cent. Dakota school bonds as they should take at the rate of $102, but in every instance appellees examined the bonds and statements of particulars accompanying them, and for themselves determined the question of the genuineness and regularity of the bonds.

We are unable to find in the circumstances attending the purchase of the bonds in question by appellees, any support for the finding of the court below that appellant was the vendor of the bonds, and liable as a warrantor of their genuineness. The course of dealing by the parties with reference to these bonds seems to us to exclude all basis for an inference that appellees took them on an implied warranty by appellant against their being fictitious. Appellees did not take from appellant, but paid the price of the bonds to the express company for the owner of the bonds, after having inspected the papers and certificates which accompanied them, and determined for themselves from such evidence (which evidence appellant’s agent did not prepare and had never examined) the genuineness of the bonds and the regularity of their issue.

The express company, in receiving the money for the bonds, was the agent, not of appellant, but of the person who forwarded the bonds; and appellees became the purchasers of them from such forwarder, with full knowledge of the facts, and solely upon their own judgment as to their validity and authenticity. The finding of the court is, in our opinion, erroneous, and the judgment must therefore be reversed and the case remanded.

Reversed and remanded.


author: Gary, J.

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    Caroline Werner v. Emil F. Werner.

      Divorce—Notice by Publication—Failure to Mail Copy—Fraud.

    1. A decree of divorce obtained in Indiana, reciting notice and affidavit of publication and setting forth that the defendant was so notified of the bringing of the suit, precludes any presumption of the further notice required by law.
    2. A divorce is invalid, where a statutory requirement for mailing a marked copy of notice to the defendant is uncomplied with.
    8. The courts of this State may disregard a fraudulent decree of divorce obtained in another State, and give the party aggrieved whatever redress it is in the power of the party guilty of the fraud to render.
    [Opinion filed February 13, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Egbert Jamieson, Judge, presiding.
    Hr. Arnold Tripp, for appellant.
    The Supreme Court of Indiana, in the case of Powell v. Powell, 53 Ind. 516, say:

      “ It will be observed from the language of this section that the bona fide residence of the petitioner in the State for two years, and in the county for six months immediately preceding the filing of such petition, is a jurisdictional fact, which ought' to be averred in the petition for divorce, and which must be duly proven by the petitioner, to the satisfaction of the court, by at least two witnesses, who are resident freeholders and householders of the State, before such court will have any power or authority to decree a divorce.”
    It will be observed in the orders of the Indiana court that not a single jurisdictional fact is found to exist, and in the absence o£ such finding the presumption is, no such facts were considered by the court; indeed, in divorce cases that generally go by default, all the notice and the jurisdictional facts required by the statute must be strictly followed, otherwise the court has no jurisdiction; such must he the policy of the court, otherwise great outrages could be perpetrated on innocent defendants, a striking illustration of which is found in the case now under consideration; for here an innocent woman is branded as a. common prostitute without any opportunity to defend herself, because she had not her day in court. See also Maxwell v. Maxwell, 53 Ind. 363.
    In Stone v. Wood, 85 Ill. 603, the Supreme Court lay down the only humane doctrine that ought to obtain for the protection of society, and of the marriage relation; it says: “ When either husband or wife becomes untrue to each other, and by fraud obtains an unjust advantage over the other, a court of equity will as readily afford relief as between other persons.”
    In Henrickson v. Van Winkle, 27 Ill. 334, the doctrine is laid down, and the court says there is no question about the power of courts of chancery to grant relief against judgments obtained by fraud.
    If there is no question on that proposition, how much more ought courts of equity to grant relief when by fraud that is taken away which money can not buy!
    The power of a court of equity to afford relief where a party has been deprived of asserting his rights or making his defense through some mistake, accident or fraud, not of his own procurement, is too firmly established to be questioned. Owen v. Ranstead, 22 Ill. 161; Nelson v. Rockwell, 14 Ill. 375.
    Equity will impeach a decree for fraud in not giving notice. Van Pelt v. Hutchinson, 114 Ill. 455.

      Messrs. Wm. Vocke and Harvey Storck, for appellee.
   Gary, J.

The appellant filed her bill against the appellee, alleging that they were married to each other in 1868, and lived together as husband and wife in Philadelphia until October, 1882, when he deserted her. That she came to Chicago in March, 1887, and found him living with another woman; that he had obtained while living here a divorce from appellant, granted by a court in Indiana, in December, 1881, of which or of the proceedings therefor she had no notice until he produced the decree in his defense when prosecuted for bigamy. She prayed that the divorce might be set aside, maintenance awarded her, and for general relief.

This case might furnish a text for an essay as lengthy and as instructive as the opinion in Hahn v. Kelly, 34 Cal. 391, where there is a most exhaustive discussion of, and collection of authorities upon, the question of the conclusiveness of judgments when. collaterally attacked. But the case may easily be disposed of upon a brief opinion.

First. It is clear, if not beyond a possible, beyond a reasonable doubt, that the appellee was never a resident of Indiana, but resided here from January, 1883, hitherto. His petition for a divorce in Indiana was an imposition upon the court, and an abuse of the law of the State, as well as a fraud upon appellant. Hpon that ground alone it is void, in my opinion, but the other judges of this court do not deem it necessary to decide that point in this case. 2 Bishop M. & D., Sec. 144, where numerous cases are cited; Shannon v. Shannon, 4 Allen, 134. See the indignant opinion of Peckman, J., in Hoffman v. Hoffman, 16 N. Y. 30.

iSecond. Without reference to extrinsic matter, the decree is void on the face of the record. The statute of Indiana requires, in the case of notice of suit by publication, in addition to other matters not necessary to state here, that the plaintiff shall file an affidavit stating the residence of the defendant, if known. In colorable compliance with the statute the appellee averred in his sworn petition that the appellant “ was, at the last time he heard or knew of her, living in the city of Philadelphia, Pennsylvania, but that her exact place of residence is unknown to this plaintiff.” The statute then made it the duty of the clerk of the court to forward to appellant, by mail, the paper containing the notice, with the notice marked. There was no attempt to comply with this provision. The final decree recites the notice and affidavit of publication— “ and it appearing to the satisfaction of the court from such proof of publication that the said defendant herein, Caroline Werner, has been duly notified,” etc., and proceeds to enter a default and dispose of the case.

This special reference in the decree to the mode by which the appellant was notified, precludes any presumption that any other or further notice was given. Hahn v. Kelly, 34 Cal. 391—407; Settlemier v. Sullivan, 97 U. S. 444; Haywood v. Collins, 60 Ill. 328; Clark v. Thompson, 47 Ill. 25. The mailing of the notice is essential to the jurisdiction of the court. Thormeyer v. Sisson, 83 Ill. 188.

True, this last case was on a writ of error from the judgment, and not a collateral attack. But the only difference that makes is, that in the former, the jurisdictional fact must affirmatively appear to exist or the judgment is erroneous, while in the latter, the non-existence of the fact must affirmatively appear, to avoid the judgment.

The decree of divorce is void, and the appellant is not to be prejudiced by it. The courts of this State have no jurisdiction to set it aside, but they may disregard it, and give to appellant whatever redress her case calls for, that is in the power of appellee to render.

The decree appealed from is reversed, and the cause remanded for further proceedings, in accordance with this opinion.

Reversed and remanded.


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    David R. Fraser et al. v. Charles H. Hollenberg et al.

      Contract—Mining Machinery—Millwright—Employment of—Damages.

    Under a contract to furnish a competent millwright to set up a silver mill and its machinery, the party furnishing such millwright can not be charged on account of damages arising from his employment for purposes other than those embraced in the contract.
    [Opinion filed February 13, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. John P. Altgeld, Judge, presiding.
    Messrs. Tatham & Webster and Millard & Smith, for appellants.
    Mr. George F. Westover, for appellees.
   Gary, J.

December 29, 1885, the appellants, who are manufacturers of machinery, made to the appellees, and they accepted, a proposition, the material parts of which for the present purpose, are:

Chicago, Dec. 29, 1885.
Phil. S. Shufeldt & Co., 56 Honore Block, City.

Gentlemen: We hereby agree to furnish you all the machinery described by attached sheets of specifications for the sum of nine thousand (89,000) dollars, which we intend as covering a perfect and complete mill, errors or omissions in specifications notwithstanding. We are to furnish all drawings, both general and in detail, showing proper erection of mill, placing machinery, grading, etc., without extra charge; we are also to furnish the services of a competent millwright to superintend mill erection and placing of machinery at your expense for his salary, which is not to exceed three hundred (8300) dollars per month; you are also to pay traveling expenses of millwright to the mines and his board while engaged with you. The millwright to stand his own traveling expenses in returning-

In making drawings, the details of shafting; etc., may be to some extent changed from these specifications.

Yours truly,

Fraser & Chalmers,

Per W. J. Chalmers.

SPECIFICATIONS.

For Ten Stamp Wet Crushing Silver Mill for Phil. S. Shufeldt & Co.

It is understood that these specifications are intended to cover a complete mill in every respect in accordance "with the plans designed by Fraser & Chalmers, errors or omissions in specifications notwithstanding. It is also understood that the plans, general and in detail, are to be considered as forming part of this contract. It is the intent of these specifications to cover everything necessary for the complete mill in accordance with said plans. It is understood that all of the machinery shall be of the very best quality, constructed from the best of material in a thorough and workmanlike manner. * * *

WaterWheel:

1 33 " Leffel special water wheel with all fixtures and fittings complete; 30 ft. of 48 " sheet iron water pipe for above wheel.

1 elbow 48" for above water pipe.

* * * ’ * * * «• «■

Two days afterward the appellants submitted to the appellees a proposition for additional articles, having no reference to this controversy, which appellees accepted in these words: Messrs. F. & C.

Gentlemen:—We hereby accept the above proposition, it being agreed that we are to dispense with use of thirty feet of iron pipe in original specifications, and use instead a wooden penstock, and credit us the difference between cost of said §120 bolts and the cost of. thirty feet of iron pipe.

Yours truly,

Philip S. Shufeldt & Co.

There is a dispute as to which party suggested the change from pipe to penstock and it is not clear to the court exactly what difference it made in the manner by which the water was to reach the wheel. The whole controversy now is upon that clause of the original proposition, “we are also to furnish the services of a competent millwright to superintend mill erection, and placing of machinery, at your expense for his salary.” A few days later appellants furnished a drawing showing the wheel, walls at a little distance from it, on each side a penstock, and a portion of a flume connecting with the penstock, such portion being on a side elevation seven feet long, and on a plan thirteen, according to the scale shown on the drawing. The damages awarded are exclusively for the alleged insufficiency of the flume. The mill is about half a mile from the water supply; next to the mill is 400 feet of flume, then ditch of 800 feet, then another flume 600 feet and then another ditch of about 800 feet to the dam.

Construing, as this court does, the obligation of the appellants to be confined to the erection of the mill buildings, and the placing the machinery in it, and that if the appellees employed for any other purpose the millwright sent by the appellants they did so upon their own account and risk, there is nothing left of the case.

When the contract, which, being in writing, the court must construe, was made, there was nothing in -it, taking the proposition and specifications together, alluding to a flume, or to any article to be furnished by appellants having any relation to the introduction of the water, except thirty feet of pipe and an elbow,

Admit that the appellants were responsible that the man they sent should properly place that pipe and elbow, they could not have been held "further, unless the words “mill erection and placing of machinery” include more than the words express; and if they are to be extended, as appellees in effect claimed in the Superior Court, to whatever was necessary to the working or efficiency of the mill, then the dam and ditches as well as the flume ought to come in.

The contract now means what it did when it was made. If the pipe and elbow had not been dispensed with, no such drawing as is now presented, showing penstock and portion of the flume, would ever have been made.

The position of the appellees that the flume is within the contract, seems more plausible, from the fact that the appellants furnished a drawing of a small part of it; but in fact, that position is not strengthened by the drawing; for it is of a thing that was not thought of when the contract was made, but brought in by subsequent alteration.

The judgment must be reversed, but it is of no use to remand the cause, for if this court is right, the appellees have no cause of action; if this court is wrong, the appellees can now go to the Supreme Court and save their verdict, unless some other point not touched here should affect them. Chicago v. Gage, 95 Ill. 593.

Judgment reversed.


text:
    Michael C. McDonald v. Marshall J. Allen et al.

      Appeal Bond—Action on—Evidence—Estoppel.

    In an action on an appeal bond, the only issue being as to the affirmance of the judgment in question by this court, it is held: That a certified copy of the judgment of affirmance of a judgment of the Circuit Court in a case between the same parties was sufficient evidence, prima facie, of the identity of the judgment affirmed and that recited in the bond; and that the evidence submitted by the defendant was insufficient to establish the contrary.
    [Opinion filed February 13, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding.
    Messrs. Meech & Asay, for appellant.
    Mr. L. S. Hodges, for appellee.

      The order of affirmance put in evidence on the trial of the case conforms, in all respects, to the bond. It imports verity, and it can not be impeached, explained, or its effect evaded in a collateral proceeding. Barnett v. Wolf, 70 Ill. 76; Harris v. Lester, 80 Ill. 307; Divine v. People, 100 Ill. 290.
    The position taken by appellant is not quite' clear. If he contends that the suit in which this bond was filed is not properly described in the bond, he can not be permitted to show it. Arnott v. Friel, 50 Ill. 174.
    He, therefore, to evade this result, contends there is no such ease in the Appellate Court as is described in the order of affirmance. This, by the above authorities, he can not do.
    If this court could, from the evidence, identify case 46,392 as the same case in which the order of affirmance was made in the Appellate Court, it would still be unable to determine anything upon appellant’s proof, because he only produces such portions of various records as suit his purpose, viz., bill and decree from Circuit Court, title page of abstract in Appellate Court, copy of bond in Supreme Court. This court can not know or assume what the remainder of these various records would disclose, and the failure to produce the entire records must be construed against him. Ogden v. Watters, 12 Kas. 282.
   Gary, J.

This is an action of debt on the appeal bond, given on an appeal from a judgment of the Circuit Court at the December term, 1886, to this court, and the only issue is upon the allegation in the declaration, denied by the idea, that the judgment described in the bond had been affirmed by this court. The appellees put in evidence a certified copy of the judgment of this court affirming a judgment of the Circuit Court, entitled in a cause wherein the party recited in the bond to have taken the appeal was the appellant, and the parties recited in the bond to have recovered the judgment were appellees. This was sufficient evidencg, prima facie^ of the identity of the judgment recited in the bond and the one affirmed in this court. The appellant then proved (partly by incompetent evidence, but let that pass,) that there was in the Circuit Court a record of a suit wherein the appellees and one Stevens had recovered the same sum as this bond recited, against the same defendant; that that case was appealed to this court and affirmed, and was taken by writ of error to the Supreme Court, and that the record of it had been taken from this court to that, and was there.

The appellees had put in evidence an execution purporting to be upon the judgment recited in the bond, and that bore the same general number as the suit proved by the appellant. There was, however, no evidence, except the inference from the foregoing, that the judgment of affirmance here, proved by the appellees, was in a case where Stevens was one of the appellees.

The recitals in the bond estopped the appellant to deny that there was such a judgment as therein recited in the Circuit Court, and that from that judgment an appeal was taken to this court. Arnott v. Triel, 50 Ill. 174.

The evidence of the appellees was sufficient, as before said, prima faeie, to prove the affirmance of that judgment. The only way to disprove it, probably, was either to present the complete record as it stood here when the judgment was" affirmed, or, by application here, have the record of affirmance amended as to the title of the cause, and then it would have .been competent to prove, by parol, that there was no other case here in which the appellees and original defendant were parties. Had that been done, the question whether there was a fatal variance, or a case where the proof only went beyond and did not contradict the allegation, would have arisen. There is no such question now in the ease. This appellant is only a surety, yet the defense has no equity in it.

After many years of litigation and the judgment of three courts—one of them twice—if the appellees can get one more they will probably get their money.

Judgment affirmed.


author: Garnett, P. J.

text:
    D. W. C. Gooding v. Anna King, Administratrix.

      Creditor's Sill—Lien—Assets in Sands of Receiver—Death of Debtor— Widmo’s Award,.

    1. The filing of a creditor’s bill for the purpose of reaching the equitable interest of one of several copartners, the assets of whose firm are in the hands of a receiver, constitutes a lien against such interest, which survives the death of such copartner as against all claiming under him, although no receiver has then been appointed.
    2. Uncertainty as to such interest is no bar to a proceeding by creditor’s bill.
    3. -A widow’s award from the estate of her deceased husband does not set aside a lien thereon acquired by the filing of a creditor’s bill prior to his death.
    [Opinion filed February 13, 1889.]
    Appeal from the Superior Court of Cook County; the lion. Henry M. Shepard, Judge, presiding.
    Messrs. Dow & Burnham, for appellant.
    The statute of Illinois in relation to creditor’s bill is copied from the statute of Hew York. The Illinois courts are presumed to follow the decisions of the Hew York courts in respect to the practice and proceedings under such bills. Singer & Talcott Stone Co. v. Wheeler, 6 Ill. App. 225.
    The statute respecting creditor’s bills is only declaratory of the chancery practice prior to the statute.
    The judgment creditor who first institutes a suit, obtains a priority over the creditors, in relation to the property and effects of the defendant, which can not be reached by execution at law. 2 Barb. Ch. Pr., 2d Rev. Ed., bottom p. 553; Lyons v. Robins, 46 Ill. 276; First Nat. Bk. v. Gage, 93 Ill. 172; McCalmont v. Lawrence, 1 Blatchf. 232; Albany Bank v. Schemerhorn, 1 Clarke, 297; Boynton v. Ransom, 1 Clarke, 584; Gordon v. Lowell, 21 Me. 251; Lucas v. Atwood, 2 Stewart, 37.

      This lien is obtained, not by the return of the execution unsatisfied, but by the commencement of the suit—filing of a creditor’s bill founded upon such return of execution at law. Edmeston v. Hyde, 1 Paige, 637; Wakeman v. Grover, 4 Paige, 23; Burrell v. Leslie, 6 Paige, 445; Commack v. Johnson, 1 Green, 163.
    The filing of a creditor’s bill operates as an attachment of property, effects and equitable interest, which can not be levied on at law. It gives to the vigilant creditor a right to priority in payment. The creditor who files the second bill will have the second lien. Corning v. White, 2 Paige Ch. 568; Milwaukee & Minn. R. R. Co. v. Soutter, 13 Wall. 517.
    Hpon a creditor’s bill, every species of property belonging to the debtor may be reached and applied to the satisfaction of his debts. And his debts, dioses in action, and other equitable rights, may be assigned or sold under the decree of the court for that purpose. Edmeston v. Hyde, 1 Paige, 637; Craig v. Howe, 2 Edw. Ch. 554; Weed v. Pierce, 9 Cow. 722; Congden v. Lee, 3 Edw. Ch. 304; Thompson v. Nixon, 3 Edw. Ch. 547; Brewster v. Powers, 10 Paige, 562; Benson v. LeRoy, 4 Johns. 651; Cohen v. Carroll, 5 S. & M. 545; Wagner v. Speck, 3 Ham. 294; Platt v. Judson, 3 Blackf. 235; Demaree v. Driskel, 3 Blackf. 115.
    Hpon a creditor’s bill, the complainant may reach the defendant’s interest in the effects of a co-partnership, after payment of partnership debts, and satisfying all prior equities in favor of his co-partners. Eager v. Price, 2 Paige 334; Storm v. Waddell, 2 Sandf. 544, decided by Sandford, Vice Chancellor, in a very able and most elaborate opinion, reviewing a great number of decided cases of both State and Federal courts. This opinion holds that the filing of the creditor’s bill, and service of process upon the judgment debtor, creates a lien upon all his property, effects and equitable assets; that the issuance of an injunction is not necessary, although prudential, and when served, prevents the debtor from disposing of his effects; that a receiver is a convenient, but. not an indispensable part of the proceeding; that the effects locked up in the hands of the debtor may be decreed to be delivered to the complainant, or sold by a master and applied in satisfaction of the judgment and costs; that a voluntary assignment of the debtor can not impair the complainant’s right, nor can any intervening claim of the creditor; that the right thus acquired by the complainant is a charge upon the things in action which the debtor had at the commencement of the suit; that such a lien is more certain and less liable to be defeated than a lien by attachment; that it is as certain and effectual upon effects and equitable interests discovered as the lion of a judgment or execution, or the lien of a mortgage.
    In McDermut v. Strong, 4 Johns. Ch. 987, this right was upheld upon equitable interests. Hadden v. Spader, 20 Johns. 554, is to the same effect. The debtor had things in action in the hands of a third party, and equity required the reduction of them to the payment of the judgment creditor. Weed v. Pierce, 9 Cow. 722, by Ch. Walworth; Wakeman v. Grover, 4 Paige, 23; affirmed in 11 Wend. 187. The same doctrine was again reiterated in Farnham v. Campbell, 10 Paige, 601.
    In Weed v. Pierce, Ch. Walworth held that the creditor by his bill acquired a specific lien upon the fund by commencement of his suit.
    In Beck v. Burdett, 1 Paige, 305, the chancellor decided that the filing of a bill, after the return of an execution at law, gave to the complainant a specific lien on the fund or property not liable to execution at law.
    And to the same effect is the case of Eager v. Price, 2 Paige, 333. In Corning v. White, 2 Paige, 567, the chancellor held that the creditor who first files his bill obtains a preference. The filing of the bill, under the provisions of the statute, operates as an attachment of the property which can not be levied on at law. It gives the vigilant creditor priority in payment, and the creditor who next files his bill will have the second lien. An assignment under the insolvent act, after commencement of the suit, only gives the assignee a right to the surplus, after the payment of the complainant’s debt.

      In Clarkson v. DePeyster, 3 Paige, 320, the chancellor again speaks of the right under a creditor’s bill “as an equitable lien.”
    The same doctrine is held in Ins. Co. v. Power, 3 Paige, 365, and Bloodgood v. Clark, 4 Paige, 574, and again in Ames v. Blunt, 5 Paige, 13. In Burrell v. Leslie, 6 Paige, 445, eight creditor’s bills had been filed at different times against the same judgment debtors, and it was held that these bills created a lien in the order of their respective suits.
    The object and purpose of the creditor’s bill was to reach the interest of King in the assets of the Montello Granite Co,, which were in the hands of a receiver and could not be levied on by execution. This was held proper in Eager v. Price, 2 Paige, 334.
    First National Bank v. Gage, 93 Ill. 172, decides that the lien which the judgment creditor obtains by tiling his credit- or’s bill, “ survives the death of the judgment debtor; that the debtor’s property then passes to the personal representatives, charged with'this lien; that the assets are subject to it, and the debts are to be paid out of them after this lien, like any other legal lien, has been satisfied. As respects equitable interest and things in action, the rule appears to be that the lien is fixed by the commencement of the suit.”
    The lien upon equitable assets, acquired by commencement of an action in the nature of a creditor’s bill, is not extinguished by the death of defendant before the appointment of a receiver, but survives against such assets in the hands of the administrator.
    Brown v. Nichols, 42 N. Y. 26, holds that Silvester v. Reed, 3 Edw. Ch. 312, and Matthews v. Neilson, 3 Edw. Ch. 346, were wrongly decided. That the doctrine laid down in these cases would subvert the well established rule that a prior equity will prevail against a subsequent legal title as to all except Iona fide purchasers.
    Messrs. C. H. and C. B. Wood and S. B. King, for appellees.
   Garnett, P. J.

This is a creditor’s bill filed June 16,1883, by appellant against Claude B. King, Anna King, his wife,, and Homer H. Hibbard, receiver of the Montello Granite Company, based on a judgment recovered at the April term, 1883, of the Superior Court of Cook county, in favor of appellant and against said Claude B. King, for §1,076 and costs. Execution was issued and duly returned unsatisfied. The Montello Granite Company was the style of a copartnership composed of Claude B. King and James H. Anderson. In a suit to wind up the affairs of that firm, the Superior Court, on the 18th day of October, 1882, appointed H. N. Hibbard receiver of the firm assets. At the time the bill in this case was filed, the receiver was proceeding with the duties of his office, and was in possession of the partnership effects. The purpose of the creditor’s bill was to reach King’s interest in the firm assets (whatever it might appear to be on final adjustment), and other equitable assets, for the payment of said judgment. The receiver was made a defendant to the creditor’s bill without leave of the Superior Court. He demurred to the bill and his demurrer was sustained October 18,1883. King and wife answered, admitting the copartnership, and stating, among other things, that Claude B. King had no property or interest in any, except his interest as copartner in the assets of the Montello Granite Company in the hands of said receiver. Replication to the answer was filed October 25, 1883. On November 11, 1884, Claude B. King died, leaving his wife surviving. His death was suggested of record May 25, 1885. His wife having been appointed administratrix of his estate by the'Probate Court of Cook county, filed her answer as administratrix on July 8, 1885, stating the death of her husband, and her apjmintment and qualification as administratrix; that the deceased left no estate except that involved in the litigation with his partner, Anderson; that all of said property is in the custody of the law in the hands of a receiver ; that it was probable that said estate will be insolvent and that there would not be more property than enough to pay preferred claims. By her supplemental answer, filed March 12, 1888, she states that the whole personal estate of said Claude B.King had been appraised and the appraisal approved by the Probate Court of Cook county, at §277; that the estate is insolvent; that her widow’s award had been fixed at $1,975, which she claims should be allowed to her out of any funds in the receiver’s hands coming to the estate, in preference to the claim of appellant. On the 6th of November, 1885, the receiver was made a party defendant to the bill by leave of the court and filed his answer November 17,1885, alleging in substance that he was unable to determine the amount of King’s interest in the assets of the Montello Granite Company. Replications were filed to the answers. It appeared on the hearing that the amount in the receiver’s hands, coming to King’s estate, is something over $1,500 and that the widow’s award had been fixed at $1,975. The court below dismissed the bill for want of equity.

The general rule is that the filing of a creditor’s bill, and service of process, creates a lien on the equitable assets of the judgment debtor. It has been aptly termed an “equitable levy.” Wait on Fraud. Con., Sec. 68; 2 Wait’s Actions and Defences, 428; First Nat. Bank v. Gage, 93 Ill. 172; Lynch v. Johnson, 48 N. Y. 27; Miller v. Sherry, 2 Wall. 237; Adist v. Butler, 87 N. Y. 585.

In the case at bar no injunction was issued or receiver appointed. Was either necessary to make the “equitable levy” perfect? In Storm v. Waddell, 2 Sandf., Ch. 494, the court (p. 582) emphasizes the point that “the lien was acquired hy the commencement of the suit, and not by the order for a receiver or his appointment;” and on pages 564, 565, it is said: “ Without regard to the injunction, the property of the defendant is subjected to the suit, wherever it may be, if the receiver can lay hold of it, or the complainant cam, reach it hy the decree. * * * A receiver is a convenient hut not indispensable part of the proceeding. No voluntary assignment of the debtor can impair the complainant’s right, nor any intervening claim of other creditors. I speak in this outline of equitable interests and things in action.” In Roberts v. Albany & W. S. R. R. Co., 25 Barb. 662, the court said: “ As soon as the judgment creditor’s suit was instituted, the plaintiff in that suit obtained a lien on all the choses in action of Rutter. All the title he had was subject to that lien; all that he could pass was subject to it. When the receiver was appointed (whether' Butter assigned to him or not) he acquired the title to those choses in action which Butter had when the action was commenced. In contemplation of law the title vested in the court when the action was commenced, and passed, as from that date, to the receiver.”

In Brown v. Nichols, 42 N. Y. 26, it was held that the lien upon equitable assets acquired by the commencement of an action in the nature of a creditor’s bill, is not extinguished by the death of defendant before the appointment of a receiver, but survives against such assets in the hands of the.' administrator.

The Supreme Court of this State, in First National Bank v. Gage, supra, cite the cases of Storm v. Waddell and Brown v. Nichols with approval and state the law to be that the tiling of a creditor’s bill, or at least the service of process, gives the complainant a lien upon the property of the judgment debtor, by placing it under the control of the court, which will not suffer it to be withdrawn so as to defeat the object of the bill by any subsequent act or title. “As respects equitable interests and things in action, the rule appears to be that the lien is fixed by the commencement of the suit.” p. 175.

Admitting that the receiver must be considered as no party to the suit at or before the death of King, still the situation is not changed. King had an equitable interest in the fund sought to be reached, and as he was a party to the suit the lien survived his death and holds good against all claiming under him. A decree against him would have been valid against his administratrix, although the receiver was not a party. Bennitt v. Star Mining Co., 119 Ill. 9.

That the interest of King in the firm assets was uncertain at the time the creditor’s bill was filed is no barrier to complainant’s suit. Otherwise any undivided equitable interest whose amount or value can not be ascertained except upon an accounting or reduction of the fund to money, is secure against the attack of creditors.

The widow’s claim to her award is against the estate of her deceased husband. Sec. 70, 75, Chap. 3, Rev. Stat. If there is no estate she has nothing to rely on for the payment of the award. If the estate is incumbered by a valid lien, the award does not set aside the lien. She only has a claim on so much as may be left after satisfying the lien. In this case there is no estate to pay the widow’s award until the lien acquired by the creditor’s bill is discharged.

The receiver is a quasi trustee, holding the fund for the benefit of whoever may eventually establish title thereto. High on Receivers, Sec. 1. If, therefore, a creditor’s bill can only be maintained in cases of fraud and trust, as contended by appellee, the facts of this case are such that the jurisdiction attaches.

The question of superior diligence only arises between creditors contending for priority of lien and has no application here. The publicity with which a debtor’s estate is surrounded by a trust which defies all the assaults of the ordinary process of law, can not be relied on as a protection against the equitable remedy of a creditor’s bill.

The decree of the Superior Court is reversed and the cause remanded with directions to enter a decree in conformity with this opinion.

Reversed and remanded with directions.