author: Mr. Justice Fulton

text:
    People of the State of Illinois ex rel. Edward J. Barrett, Appellee, v. Anna Tull, Administratrix of Estate of Oscar Tull, Deceased, Appellant.
    Gen. No. 9,285.

      Heard in this court at the April term, 1941.
    Opinion filed November 3, 1941.
    R. I. Dove, of Shelbyville, for appellant.
    George F. Barrett, Attorney General, for appellee; W. F. Gray, Assistant Attorney General, of counsel.
   Mr. Justice Fulton

delivered the opinion of the court.

The facts in this case are not in controversy. Oscar Tull was on May 6th, 1936, employed by the State of Illinois as a workman on State Highway Route No. 16. While engaged in the performance of his duties, and in the exercise of due care and caution for his own safety, he suffered injuries through the negligence of one Norman Siefkin, an employee of the Household Finance Corporation, from which he died on the same day. The plaintiff appellant, as administratrix of the Oscar Tull estate on October 13, 1936, filed a complaint in the circuit court of Shelby county against the said Norman Siefkin and Household Finance Corporation, seeking damages for the death of Oscar Tull, resulting from such injuries.

On the 23rd day of April 1937, the State of Illinois, while the above cause was still pending, filed a motion for leave to enter its appearance and to intervene in said cause asking that the State be subrogated, reimbursed and indemnified for certain sums of money expended by it for compensation paid to the widow Anna Tull in compliance with an award made by the court of claims of the State of Illinois, upon the petition of the said Anna Tull filed in said court, and which award aggregated about the sum of $3,400. Upon said date the State had paid to Anna Tull as such claimant to apply on such award the sum of $1,429.95.

On September 21, 1939, a judgment was entered in this cause in favor of the plaintiff appellant and against the defendants Siefkin and Household Finance Corporation for the sum of $5,000, and costs of suit, and the full amount thereof was, by the said defendants, paid to the clerk of the court in full satisfaction of such judgment. On September 30, 1939, the State of Illinois, by its attorney general, filed in this cause a motion and petition asking for a lien upon the award, fund and judgment entered in favor of appellant for the amount of compensation paid by the State to Anna Tull.

Subsequently the parties to this appeal entered into a stipulation whereby it was agreed that the facts set forth in said motion and petition were true and correct and that Oscar Tull, deceased, was at the time of the accident employed in a department of the State of Illinois which was engaged in an extra hazardous occupation at the time of his death.

On October 16, 1939, the appellant filed a motion to' strike the motion and petition of the State of Illinois for subrogation and reimbursement upon the following grounds:

1. That the State of Illinois is not entitled to subrogation or reimbursement for compensation paid to Anna Tull because the State of Illinois is not under the provisions of the Workmen’s Compensation Act.

2. That section 29 of the Workmen’s Compensation Act does not apply because the State of Illinois is not operating under said act and there is no authority known at common law to authorize the court to grant the prayer of said petition.

A hearing was had on the motion to strike and the court ruled that the State of Illinois be permitted to intervene and that the sum of $1,429.95, be paid to the treasurer of the State of Illinois as reimbursement for money paid to the said widow, Anna Tull.

It is from this order that the appellant has prosecuted her appeal to this court.

It is the contention of the appellant first that the funds awarded by the legislature upon recommendation of the court of claims were paid to Anna Tull as an individual, as the surviving widow of Oscar Tull; that the judgment rendered against the defendants in this cause was procured by and entered in favor of Anna Tull, administratrix of the estate of Oscar Tull, and that in the eyes of the law Anna Tull individually is one person and Anna Tull administratrix is entirely a different person.

We believe the language of section 29 of the Workmen’s Compensation Act provides specifically that where an action is brought against another person by the injured employee or his personal representative, and judgment is obtained or paid, then from the amount received there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee or personal representative. It further provides that the employer may have or claim a lien upon any award, judgment or fund out of which such employee might be compensated from such third party.

In this case, the claim for compensation filed by the widow in the court of claims and the suit by her as administratrix for damages, both arise out of the same transaction and are based upon the same state of facts; that the amount paid by the State to Anna Tull in fact and in law was compensation paid to the employee or his personal representative for which the employer is entitled to reimbursement out of the judgment obtained against a third party.

It is further urged on the part of the appellant that because she could not sue the State for compensation before the Industrial Commission but must resort to the court of claims, and because the employer of Siefldn could not sue the State in case the conditions were reversed and the State of Illinois had injured an employee of the Household Finance Corporation, that therefore, the conditions of the Workmen’s Compensation Act are not reciprocal, and the State of Illinois is not entitled to participate in the benefits of the judgment recovered in this case.

However, section 3 of said act, while not in every sense reciprocal in its effect, applies automatically to the State of Illinois, and in this case the widow Anna Tull elected to apply for compensation by filing her petition with the court of claims of the State of Illinois. By the order of that court she was awarded an amount specifically as compensation under the terms and provisions of the Workmen’s Compensation Act. $1,429.95 has been paid on that award as part of such compensation.

Where both parties elect to abide by the provisions of such law, they must be held to be bound thereby. To apply any other rule would be to give the appellant in this case the right to recover twice for the same item of damage and to deny the State to recover back from a third party any amount which it had paid out by way of compensation.

The cases of Dinwiddie v. Siefkin, 299 Ill. App. 316, and Agar Packing & Provisions Co. v. Becker, 301 Ill. App. 237, do not hold otherwise. In the Dimviddie case, this court held that section 3 of the Workmen’s Compensation Act was intended to be directory only and not binding upon the State. The question of the right of the State to intervene and procure a lien by subrogation under similar circumstances was not passed upon in that case. The Agar case held that an employer was not authorized by the act to bring suit against a third person who is not included under the act.

It is our judgment that the order of the circuit court permitting the State of Illinois to intervene in this case and ordering the sum of $1,429.95, to be paid to the treasurer of the State of Illinois as reimbursement for compensation advanced was fully justified by the record in this case and such order is affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    In re Estate of Ellen Yeazel, Deceased. Chas. W. Fleming, Executor of Estate of Ellen Yeazel, Deceased, et al., Appellants, v. Clark Yeazel and Jesse Hight, Appellees.
    Gen. No. 9,291.
    Heard in this court at the October term, 1941.
    Opinion filed November 3, 1941.
    W. T. Henderson, of Danville, and Francis G. Rearick, guardian ad litem, for appellants.
    V. W. McIntire, of Danville, for appellees.
   Mr. Justice Fulton

delivered the opinion of the court.

The appellant Chas. W. Fleming, executor of the estate of Ellen Yeazel, deceased, filed his petition in the probate court of Vermilion county, asking that the amounts owing by two of the beneficiaries under the will be set off against their respective legacies. The plea of the statute of limitations was interposed on behalf of both beneficiaries since each note was payable more than ten years prior to the commencement of the action. The probate court held in favor of the petition but on appeal the circuit court allowed the defense. It is from this latter order that the present appeal is taken.

There is no disagreement about the facts. Ellen Yeazel died a resident of Vermilion county, Illinois, on January 11, 1939, leaving a last will and testament which was duly probated in said county on February 6, 1939.

After providing for the payment of debts and other bequests not in controversy, the will directed the executor to divide the money remaining in his hands into nine equal parts, of which one ninth was to be distributed to a son, Clark Yeazel, one ninth to a daughter, Ethel E. Matthews, one ninth to a foster son, Jesse Hight, and other distributions immaterial here to other beneficiaries.

The appellant, Chas. W. Fleming, was appointed executor and letters testamentary were issued to him. Ethel E. Matthews died intestate prior to the death of her mother leaving as her children and heirs-at-law, Howard Matthews and Lawrence Matthews, appellants herein, whose interests are represented by a guardian ad litem. The will was dated October 27, 1927.

On July 23, 1926, Jesse Hight for value received, gave Ellen Yeazel his promissory note for two hundred dollars, with interest at the rate of 5 per cent per annum, payable to the order of the said Ellen Yeazel one year after date, and no payment of either principal or interest has ever been made thereon.

On June 2, 1924, Clark Yeazel for value received, gave Ellen Yeazel his promissory note for $1,185, with interest at the rate of 5 per cent per annum, payable to the order of said Ellen Yeazel, three years after date. Thereafter Clark Yeazel made an interest payment thereon, on June 2, 1926, in the amount of $118, and no further payment of either principal or interest has ever been made thereon.

The above facts were all set forth in the petition of the executor wherein he asked the probate court to deduct from the legacy to be paid to Jesse Hight the amount of his note and interest, and from the legacy to be paid to Clark Yeazel the balance of his note and interest. A plea of the statute of limitations was filed to this petition by both Jesse Hight and Clark Yeazel. The circuit court in reversing the order of the probate court held in effect, that both debtors were entitled to their respective legacies free of the obligations on said notes and that the statute of limitations was a complete defense.

The record on this appeal clearly presents one question, namely: “Whether an Executor can set off as against a legacy about to be distributed, a debt by the Legatee running in favor of the estate which has been barred by the ten year Statute of Limitations.”

The cases in Illinois and from foreign jurisdictions appear to be in hopeless conflict over this identical question, and very eminent and respectable authority is presented for the positions assumed by both the appellants and appellees on this appeal.

Some of the well-considered opinions in foreign jurisdictions which hold that the amount of the outlawed debt may be applied by the representative of the estate in satisfaction of the amount to be paid to the distributee, on the theory that the statute of limitations bars only the right of action, the remedy and not the debt itself; that the indebtedness of a distributee of the estate should be regarded as an asset of the estate already in the hands of the debtor, and .that his legacy or share is to that extent satisfied, are Holmes v. McPheeters, 149 Ind. 587, 49 N. E. 452; In re Estate of Lindmeyer, 182 Minn. 607, 235 N. W. 377; Frank v. Wareheim, 177 Md. 43, 7 A. (2d) 186; Cox v. Brady, 58 Ga. App. 498, 199 S. E. 242.

Some leading texts announce the same or similar rules. Wood on Limitations, 4th ed. vol. 2, sec. 198. Schouler on Wills, 5th ed. vol. 2, sec. 1470. Woerner on Am. Law of Administration, 3rd ed. vol. 3, pp. 1927. The following Annotations state that the weight of authority supports such doctrine. 21 Am. Jur. sec. 457, A. L. R. vol. 110, page 1385.

Many leading cases in other States support the opposite rule which states that a statute barred debt is no more recoverable by an estate than any other creditor. Allen v. Edwards, 136 Mass. 138; Holt v. Libby, 80 Me. 329, 14 Atl. 201; Boden v. Mier, 71 Neb. 191, 98 N. W. 701; In re Milne’s Appeal, 99 Pa. 483; Luscher v. Security Trust Co., 178 Ky. 593, 199 S. W. 613; In Re Schaefer’s Estate, 53 Cal. App. 493, 200 Pac. 508.

The question does not seem to have been definitely concluded by the courts of Illinois. In the case of Hesley v. Shaw, 120 Ill. App. 92, the precise question at issue in this suit was decided by this court in an opinion which holds that the notes were barred by the statute of limitations and ordered the administrator to make distribution to the heirs without deducting from the distributive shares of certain heirs the amounts due on notes which they owed the estate. The appellants contend that this case is illogical, against the weight of authority and should not be followed. There appears to be only one expression upon this question by our Supreme Court.

In Jeffers v. Jeffers, 139 Ill. 368, at page 376, the court said:

“It is undoubtedly true that where a legacy or bequest is left to the testator’s debtor, the indebtedness may be taken out of the legacy, for the reason, as is said, ‘the legatee’s demand is in respect of the testator’s assets, without which the executor is not liable, and therefore the legatee in such case is considered by a court of equity to have so much of the assets already in his hands as the debt amounts to, and consequently to be satisfied pro tanto.’ (Toll, on Executors, 338.) It has also been held that an executor’s right to deduct a debt due the testator from a legacy will not be defeated by showing the debt to be barred by the Statute of Limitations. ”

In Esmond v. Esmond, 154 Ill. App. 357, it was stated at page 360:

“Executors have the right, and it is their duty to retain a sum equal to the indebtedness of the distributee of an estate, and apply the same in payment thereof before paying any money on his distributive share. . . . They have that right even if the indebtedness is barred by the statute of limitations.”

In Pollock v. Gantlin, 253 Ill. App. 229, the court approved and adopted the above quotation from the Esmond case as the law in Illinois.

We believe this question will not be conclusively settled in Illinois until our Supreme Court has passed upon a case directly in point. We hesitate to change or alter any decision of this court heretofore made but it is our opinion that the weight of authority and the better reasoned cases hold that an executor holding notes of distributees is authorized to set such indebtedness off against the legacies of the debtors, even though the notes on their face are barred by the statute of limitations.

The judgment and decree of the circuit court is therefore reversed and the cause remanded with directions to affirm the order and judgment of the probate court of Vermilion county.

Reversed and remanded with directions.


text:
    Farmers State Bank, Rossville, Indiana, et al., Appellees, v. Lula May Sallee et al., Appellants.
    Gen. No. 9,292.

      Heard in this court at the April term, 1941.
    Opinion filed November 3, 1941.
    Mann & Stifler, of Danville, and Asa S. Chapman, of Champaign, for appellants.
    Rearick & Rearick, of Danville, for appellees.
   Mr. Justice Fulton

delivered the opinion of the court.

Litigation between the above-named parties has been before this court on a previous decree and the facts on that appeal are fully set forth in Harper v. Sallee, 305 Ill. App. 85. A certificate of importance was granted and the case reviewed by the Supreme Court of Illinois in vol. 376 Ill. 540. The opinion in that case relates clearly and concisely the history of this litigation, so that the following statement is in a measure copied from the language of the Supreme Court.

On March 28, 1928 William L. Sallee and his wife, Lula May Sallee, one of the appellants on this appeal, mortgaged 72 acres of land and both signed the mortgage note for $3,000. This note and mortgage later became the property of the Mutual Benefit Life Insurance Company. On December 24, 1930 reconveyances were made so that an undivided two-thirds interest was deeded to Sallee and one third to his wife, the said appellant. On February 2, 1931, Sallee gave a second mortgage on his two-thirds interest to the State Bank of Rossville, Indiana, which secured a note in the sum of $6,885.25, signed by him and his son, Alva M. Sallee. Lula May Sallee signed the mortgage, but not the note. William L. Sallee died testate on September 2, 1931 and by his will devised all of his property to appellant, Lula May Sallee. Later the insurance company foreclosed the first mortgage, making the bank, as the owner and holder of the second mortgage, one of the defendants. By its answer and counterclaim the bank prayed foreclosure of the second mortgage on the undivided two-thirds interest in the land. The foreclosure decree provided for sale of the premises on the first mortgage upon default of payment in the amount found due. No payment being made the master sold the premises which were bid in by the insurance company.

On March 17, 1936, in the same suit, the bank obtained a decree for foreclosure of the second mortgage on the undivided two-thirds interest it covered. On January 4, 1937, the appellee, Edward Harper, obtained an assignment of the said decree and on the next day, being within 12 months from the sale under the first foreclosure decree, redeemed said undivided two-thirds interest formerly owned by William L. Sallee from the first mortgage sale.

On March 1, 1937, appellee, Edward Harper, took possession of the 72 acres without the consent of Mrs. Sallee and has retained it ever since.

Edward Harper then filed a suit on May 18, 1937 asking that he be given a deed to the two-thirds interest covered by his second mortgage; that Mrs. Sallee be ordered to contribute one third of the redemption money by a short day and that in default of such payment, her one-third interest be sold. To such complaint Mrs. Sallee filed a counterclaim charging Harper with being a trespasser and that she was entitled to possession. She further asked that he be compelled to account to her for rents during his possession and that he be ordered to surrender the land.

The chancellor found in favor of the complainant but that decree was reversed by this court, 305 Ill. App. 85 and the Supreme Court in 376 Ill. 540, affirmed the action of this court in directing the circuit court to dismiss the complaint for want of equity and to grant the prayer of appellant’s counterclaim. That court specifically held that where no sale was had under decree to foreclose second mortgage, the appellee, Edward Harper, as assignee of such decree, and having redeemed from the foreclosure of prior lien, was not entitled to a deed. Also that where he entered upon the land without the consent of the first mortgagor’s devisee he was a mere trespasser. After the decree was entered by the circuit court in that case the appellant, Delia M. Hays, acquired title to the unincumbered one third of the land by conveyance from Dula May Sallee.

In the decree in this case awarding foreclosure of the second mortgage, dated March 17, 1936, it was provided as follows:

“And it is further ordered, adjudged and decréed that if the money arising from said sale shall be insufficient to pay the amount so due the counterclaimant herein, with interest aforesaid, after deducting the costs and expenses of sale, as aforesaid, that said Master specify the amount of such deficiency in his report of sale, and that on the coming in and confirmation of said report, that said deficiency shall be established as a lien upon the rents, issues and profits of said mortgaged premises, accruing during the period of redemption after sale under this decree, subject to the rights of the plaintiff in this cause; and the Court finds that Alva M. Sallee is personally liable to pay said deficiency. ’ ’

Pursuant to the terms of said decree the master in chancery on January 20,1941 sold the undivided two-thirds interest in the land at public sale and Edward Harper became the purchaser. After the sale there was a deficiency existing in the amount of $1,280.67. In accordance with the decree there was a personal deficiency judgment entered against Alva M. Sallee for said amount, and it was further ordered by the court:

“It is further ordered, adjudged and decreed by . this Court that said Edward Harper, assignee of Farmers State Bank, Rossville, Indiana, have and he is hereby given a lien upon the rents, issues and profits of said mortgaged premises accruing during the period of redemption after January 20, 1941, the date of sale, until said deficiency of One Thousand Two Hundred Eighty and 67/100 ($1,280.67) Dollars, with lawful interest from January 20,1941 is satisfied.”

Thereupon Edward Harper, appellee, filed his petition for the appointment of a receiver, setting up the above facts as a basis for such appointment, and also alleging the insolvency of Alva M. Sallee. The petition prayed for a receiver for the undivided two-thirds interest with the usual powers and duties of a receiver in chancery. The court denied a motion by Lula May Sallee to dismiss the petition and on February 4, 1941 named the First National Bank of Dan-ville as receiver of the two-thirds interest in the land. On February 13, 1941 the court granted said petition over the objection of appellants and entered an order providing therein for the following: That the prayer of the receiver’s petition to lease be granted; that the motion of Lulu May Sallee to set aside the master’s sale and to cancel the certificate of purchase, be denied; that upon the giving of a plaintiff’s bond in the sum of $500, the motion to dismiss for want of bond be denied; that the objection to the proposed lease made by appellants be overruled and the motion of Delia M. Hays to vacate the order appointing a receiver and asking leave to plead, be denied.

It is contended by the appellants that the court was without jurisdiction to enter the decree on March 17, 1936 in this suit, because more than 30 days had expired since the confirmation of the sale under the first mortgage and therefore the court lost jurisdiction of the entire subject matter of the suit and the parties thereto. However, the minute order entered by the trial judge at the time of the entry of the original decree provided for the foreclosure of the second mortgage “as per written decree” which was sufficient memoranda upon which to base the decree of March 17, 1936. Brown v. Hamsmith, 247 Ill. App. 358.

It is the further position of the appellants that the petition for the appointment of a receiver does not set up sufficient grounds to authorize the court to make any such appointment. There was no appeal from the decree of March 17,1936, which provided that if a deficiency was established it should be a lien upon the rents, issues and profits from the mortgaged premises during the period of redemption. The master’s report of sale showed a deficiency of $1,280.67 and a deficiency judgment entered against Alva M. Sallee by the decree, confirming the master’s report of sale. This decree also provided that Edward Harper, as assignee of the bank, be given a lien upon the rents, issues and profits from the mortgaged premises during the period of redemption until said deficiency was fully paid. No appeal was taken from any of said orders. Even though there was no express pledge of the rents in the mortgage instrument, a court may appoint a receiver to take charge of the property and collect the rents arising therefrom, where it appears that the property is insufficient security and that the party personally liable is insolvent. First Nat. Bank v. Illinois Steel Co., 174 Ill. 140.

It is also urged by appellants that where rents have not been pledged and where the owner of the equity of redemption is not personally liable to pay the mortgage debt and there is no deficiency against him the rents belong to the owner of the equity and the mortgagee cannot take them. In the case of Lancaster v. Prussing, 139 App. 33 the principal debtor and owner of the equity in a foreclosure case became deceased prior to foreclosure. Springer, one of the defendants, was a tenant and also obligated on the notes. After sale there was a deficiency established and a judgment for same entered against Springer. The court held that in the absence of a provision in the trust deed pledging the rents as security where the premises do not sell for enough to satisfy the decree and there is a decree for the deficiency, it is correct practice to apply to the satisfaction of such deficiency decree, through a receiver, rents which may be derived from the premises during the redemption period. The case was affirmed by the Supreme Court in 234 Ill. 462.

All the decrees and orders of the court involved in this appeal have specific reference to the two-thirds undivided interest in the land which was expressly mortgaged by the second lien, and therefore Lelia M. Hays, the present owner of the other one-third interest was not a necessary party to the petition for the appointment of a receiver.

While under the decision of the Supreme Court in Harper v. Sallee, 376 Ill. 540, Edward Harper, the appellee, was found to be a trespasser, he later foreclosed the second mortgage and by regular and orderly procedure through the circuit court has acquired rights which he did not have in the independent suit above mentioned.

Believing that the trial court ruled correctly in the appointment of a receiver and in his rulings contained in the order of February 13, 1941 the action of said court is hereby affirmed.

Affirmed.


author: Opinion by Presiding Justice Hayes.

text:
    People ex rel. John Faulstich, Appellee, v. William B. McBrien, Mayor of City of Staunton, Appellant.
    Gen. No. 9,258.
    Heard in this court at October term, 1940;
    opinion filed November 3, 1941.
    L. M. Harlan and Jesse Peebles, for appellant; James H. Murphy, for appellee.
   Opinion by Presiding Justice Hayes.

“Not to be published in full.”


author: Opinion by Presiding Justice Hates.

text:
    Harry M. Stern and Sam Stern, Copartners, Trading as Stern Furniture Company et al., Appellees, v. Glenn Rogers et al., Appellants.
    Gen. No. 9,272.
    Heard in this court at January term, 1941;
    opinion filed November 3, 1941.
    Edward Pree, for appellants; A. M. Fitzgerald, for appellees.
   Opinion by Presiding Justice Hates.

“Not to be published in full.’’


author: Opinion by Justice Fulton.

text:
    William K. Galeener, Appellant, v. Edward F. Hessel and Emma Alms, Administrators of Estate of John Frederick Hessel, Deceased, Appellees.
    Gen. No. 9,288.

      Heard in this court at April term, 1941;
    opinion filed November 3, 1941.
    Little & Finfrock, for appellant; C. E. Tate, for appellees.
   Opinion by Justice Fulton.

“Not to be published in full.”


author: Opinion by Justice Riess.

text:
    Bessye May Ferguson and John E. Ferguson, Appellees, v. City of Springfield, Appellant.
    Gen. No, 9,284.

      Heard in this Court at April term, 1941;
    opinion filed November 3, 1941.
    Hugh J. Graham, Jr., City Attorney, and Barber & Barber, for appellant; Boy Geibe Hill, for appellees.
   Opinion by Justice Riess.

“Not to be published, in full.”


text:
    Frank Reidel, Appellee, v. Sherwood Camp et al., Defendants. Homer English, Appellant.
    Gen. No. 9,287.
    Heard in this court at April term, 1941;
    opinion filed November 3, 1941.
    Costigan, Wollrab & Yoder, for appellant; Stone & Taylor and William R. Bach, for appellee.
   Opinion by Justice Riess.

“Not to be published in full.”


author: Opinion by Justice Matchett.

text:
    People of the State of Illinois ex rel. Leo P. Ratkowski et al., Appellants, v. Edward J. Kelly, Mayor of the City of Chicago, et al., Appellees.
    Gen. No. 41,430.
    Heard in first division, first district, this court at October term, 1940;
    opinion filed November 13, 1941.
    Wolf & Love and Nathan Allen, for appellants; Nathan Allen and Alexander Wolf, of counsel; Barnet Hodes, Corporation Counsel, for appellees; J. Herzl Segal, Assistant Corporation Counsel, of counsel.
   Opinion by Justice Matchett.

“Not to be published in full.”


author: Opinion by Presiding Justice McSurely.

text:
    Thomas A. Morris, Jr. and Frances Leah Morris, Appellees, v. Homer L. Patterson, Appellant.
    Gen. No. 41,963.

      Heard in first division, first district, this court at October term, 1941;
    opinion filed November 25, 1941.
    Daniel F. Kemp and David A. Canel, for appellant; Cummings & Wyman, for appellees; Harold Engstrom and Stella Clinton, of counsel.
   Opinion by Presiding Justice McSurely.

“Not to be published in full.”


author: Mr. Justice Dady

text:
    Frank Reinhardt, Trustee, et al., Appellants, v. Security Insurance Company of New Haven, Connecticut, Appellee.

      Heard in this court at the February term, 1941.
    Opinion filed November 1, 1941.
    Rehearing denied December 19, 1941.
    James O. Miller and John R. Sprague, both of Belleville, for appellants.
    Walter E. Ackermann, of Belleville, and Samuel Levin, of Chicago, for appellee.
   Mr. Justice Dady

delivered the opinion of the court.

This is an action to recover on a fire insurance policy and on the mortgage loss clause thereto attached, tried by the court without a jury. At the conclusion of the evidence offered by plaintiffs,, and without any evidence being offered by defendant, the trial court, on motion of defendant, entered judgment for defendant, from which judgment plaintiffs appeal.

On May 17, 1933, the defendant through A. S. Yien, its local agent, issued and delivered to plaintiffs Sebastian Huskamp and Rose Huskamp, who were husband and wife, its policy of insurance by which it agreed to insure them from May 17, 1933 to May 17, 1936, against loss or damage by fire in an amount not exceeding $1,000 to “a one story . . . frame building” located on real estate near East St. Louis. The policy stated that the building was then “occupied and to be occupied only for dwelling purposes.” The policy contained provisions to the effect that it would be void if assigned by the insured before a loss, or if the hazard be increased by any means within the control or knowledge of the insured, or if any change took place in the possession of the subject of the insurance (except change of occupancy without increase in hazard); that if fire occurred the insured should render a written report of loss within 60 days after the fire, that no suit or action on the policy should be sustainable unless commenced within 12 months after the fire, and that no agent should have power to waive any of the provisions or conditions of the policy except by such waivers as should be in writing and attached to the policy.

The policy had attached thereto a “standard mortgage clause” No. 127, dated May 17, 1933, and executed by the defendant by such local agent, the material provisions of which were:

(1) “Loss or damage, if any, under this policy, shall be payable to F. E. Schneidewind, Trustee, ... as interest may appear, and this insurance, as to the interest of the mortgagee (or trustee) only therein, shall not be invalidated by any act or neglect of the mortgagor . . . nor by the occupation of the premises for purposes more hazardous than are permitted by this policy . . . .”
(2) “Provided also, that the mortgagee (or trustee) shall notify this company of any change of . . . occupancy or increase of hazard which shall come to the knowledge of said mortgagee (or trustee) and, . . . it shall be noted thereon and the mortgagee (or trustee), shall, on demand, pay the premium for such increased hazard . . . .”

Prior to the delivery of the policy on December 19, 1932, Mr. and Mrs. Huskamp had executed and delivered to. Schneidewind, trustee, a mortgage dated December 19, 1932, on said real estate to secure their note for $600 and interest, payable on December 19, 1935. The principal of such note plus interest since December 19, 1933, remains unpaid.

On or about May 17, 1933, and after receiving such policy, Mr. and Mrs. Huskamp delivered the same to Schneidewind, trustee, as collateral security for the indebtedness secured by the mortgage.

On September 22, 1933, by written assignment of that date, Schneidewind, trustee, assigned the mortgage and the indebtedness thereby secured to Frank Reinhardt, trustee, and at the time of such assignment Schneidewind, trustee, delivered to Reinhardt, trustee, the mortgage and the note thereby secured, and the insurance policy in question, with such loss clause so attached, — such note being indorsed by Schneidewind, trustee, “without recourse.” The written assignment of mortgage made no mention of the insurance policy or of the mortgage clause attached. Schneidewind made no other written assignment, either on the policy or on the loss clause, or otherwise. Defendant did not know until after June 16,1934, that Reinhardt had acquired such mortgage, note and policy.

On June 16, 1934, while still owned by Mr. and Mrs. Huskamp and while said mortgage and indebtedness were owned and held by Reinhardt, trustee, and while such policy and loss clause were also held by him, the building described in the policy was destroyed by fire.

At the time the policy was issued the property was and thereafter continued to he occupied by a tenant, as a dwelling only, until one Chaney moved on said real estate about three months before the fire. Thereafter Chaney, as a tenant of Mr. and Mrs. Huskamp, occupied the property for about two months, as a dwelling only, and thereafter for another month and at the time of the fire Chaney as such tenant occupied the building as a dwelling and tavern in which beer and the usual intoxicating liquors were sold.

Mrs. Huskamp knew the property was going to be and was during such last month occupied as a tavern. The record is silent as to knowledge on the part of her husband, but we will assume he had the same knowledge. Neither Schneidewind nor Reinhardt had any such knowledge.

Mrs. Huskamp testified, without objection, that at the time the insurance policy was issued there was a new four-room house on the property and that the cost of the labor and material used in building such house was around $1,600 or $1,700.

She was asked if notice was given the defendant of the change in occupancy and without objection answered “Yes.” A motion to strike this answer was made by the defendant on the ground that the answer was a mere conclusion and on the further ground that the suit was on a contract and the question of notice of change of occupancy was immaterial. The motion to strike was allowed, not because of the answer being a conclusion, but solely because the policy was issued to cover a residence and there had been a change in the character of the occupancy. Plaintiffs then offered to prove by Mrs. Huskamp that notice was given the defendant that Chaney was going to use the premises as a tavern, and that the defendant made no request for the insurance policy so that the change could be indorsed thereon, and made no request for increased premium, to which offer a general objection was made and sustained.

Mrs. Huskamp testified that she “notified Vien, the agent, of the fire.” Defendant objected to this answer, merely stating “That is objected to,” which objection the court overruled. She further testified, without objection, that thereafter and two days after the fire a son of Vien and Mr. Jones, representing the defendant, came out and viewed the premises, and that they then had her sign what they told her was a proof of loss. She was then asked “Did they leave a copy with you?” Defendant’s counsel then stated: “I object to that, it is not the best evidence. I move the answer be stricken with reference to any document.” This objection was overruled. She then stated without objection that “several days” after the fire she signed another paper at the office of Vien, the agent, which “they said was a proof of loss.” The answer “They said was a proof of loss” was objected to as being a conclusion and not the best evidence, which objection was overruled. She was then asked if she then “took an oath to the paper” she signed, and without objection answered “Yes.”

From the record it does not appear on what grounds the trial court based its judgment. While this appeal is taken by the plaintiffs and the burden is on them to show error, we believe the issues can be better and more clearly disposed of in this opinion by passing on the different points presented and argued by the defendant why the judgment should be sustained.

The defendant states in its brief that the second amended complaint alleged that Reinhardt was the assignee of a certain note and mortgage made by the Huskamps to Schneidewind, that the answer of the defendant alleged that the mere assigning of the mortgage and note did not assign the mortgage clause payable to Schneidewind, that there was no privity of contract between.the plaintiff Reinhardt and the defendant, that if said mortgage clause was assigned it was without the consent of the defendant and conferred no rights on the assignee and made the policy and mortgage clause void; that to each of these defenses the plaintiff did not reply and that therefore under the pleadings they stand admitted. A copy of the standard mortgage clause No. 127 was attached to and by reference made a part of the complaint. The complaint alleged that such clause was assigned by Schneidewind to Reinhardt at the time the mortgage and note were assigned, and the answer of the defendant alleged that such clause was attached to and made a part of the policy. These allegations of fact were sufficient to present the issue of whether or not there was a valid assignment. We do not understand that mere legal conclusions in an answer are admitted by failure, if any, to specifically reply thereto. (Ross v. Clark, 225 Ill. 326.)

Defendant next contends that Reinhardt did not prove that the mortgage clause was assigned to him. No authority whatever has been cited by either party on the question of whether the assignment by Schneidewind of the note without recourse and the assignment of the mortgage and the concurrent delivery by him of the policy with the loss clause attached constituted an assignment of his rights under the loss clause. In 29 Am. Jur., page 411, paragraph 509, it is said: “No particular form of words is essential to the validity of an assignment of an insurance policy or of a claim for loss thereunder, and unless so required by statute or by the terms of the policy, such assignment need not be in writing but may be by parol.” (See Savage v. Gregg, 150 Ill. 161; Hyatt v. Foster, 195 Ill. App. 428; 26 Corpus Juris 133.) There was no provision in the policy, or in the loss clause referring to or preventing the assignment of such clause, and we know of no statute which prevented such assignment. In our opinion the undisputed facts show an assignment by Schneidewind, trustee, to Reinhardt, trustee, of the rights of Schneidewind, trustee, under the insurance policy and under the loss clause thereto attached.

Defendant next contends that there is “no privity of contract” between the plaintiff Reinhardt and the defendant and that therefore Reinhardt cannot maintain this action. No Illinois case has been called to our attention in which the question is passed upon or discussed as to whether an assignee of the rights under a mortgage loss clause can maintain such an action where the assignment is made without the knowledge or consent of the insurance company. Defendant quotes from East St. Louis Lumber Co. v. United States Branch of the London Assur. Corp., 246 Ill. App. 574, in which it is said: “The law is well settled that a contract of insurance is a personal contract with the insured which does not run with the insured property unless expressly so stipulated and in the absence of an assignment of the policy with the insurer’s consent, the purchaser of the interest acquires no privity with the insurer. ... A transfer of the insured property is not an assignment of the policy of insurance.” We do not consider such case or the quoted language as being in point. The present policy by its terms expressly prohibited the assignment by the insured of such policy without the consent of the defendant, but there was no provision whatever in the policy or in the loss clause referring to or preventing the assignment of the rights of the beneficiary under such loss clause. It should be borne in mind that the action of Reinhardt, trustee, is not based on the policy alone, but is based on the loss clause as a part of the policy. Defendant cites and quotes from Immel v. Travelers Ins. Co., 373 Ill. 256, but we do not consider such case or any language used therein to be at all in point.

The precise question has been passed upon by other courts. Central Union Bank of South Carolina v. New York Underwriters’ Ins. Co., 52 F. (2d) 823, is a case in which the authorities are reviewed and a case in which the facts are very similar to the facts in the instant case. In that case the bank became an assignee of a mortgagee and the indebtedness thereby secured, by virtue of a written assignment, and became assignee of a fire insurance policy merely by concurrent delivery. Thereafter the property insured was destroyed by fire and the bank as assignee under the loss clause sued the insurance company. It was conceded that prior to the fire the policy had become void so far as the owner of the property was concerned. The language of the loss clause was identical with the language of the present loss clause. After distinguishing between the rights of the insured under the policy and the rights of the mortgagee under a mortgage clause, and giving the reasons for such distinctions, the court said: “The contention that the company contracted to pay the loss under the policy only to the mortgagee named is hyper technical. We have seen that no relation of personal confidence is involved; and there would be as little reason in holding that the rights of the mortgagee in such case are not assignable as in holding that he might not assign a collateral note made payable to him, on the ground that only he had been named as payee .. . . Our conclusion that, in the absence of restriction in the policy or in the mortgage clause itself, the mortgagee may, without the consent of the company, transfer his rights under the policy along with the mortgage debt, is supported by all of the authorities which we have been able to find bearing directly on the question involved. Cooley’s Briefs on Insurance (2d Ed.) vol. 2, 1768; 6 Couch on Insurance 5152; Whiting v. Burkhardt, 178 Mass. 535, 60 N. E. 1, 52 L. R. A. 788, 86 Am. St. Rep. 503; Breeyear v. Rockingham Farmers’ Mut. Fire Ins. Co., 71 N. H. 445, 52 Atl. 860; Sun Fire Office v. Fraser, 5 Kan. App. 63, 47 Pac. 327, 329; Dickey v. Pocomoke City Nat. Bank, 89 Md. 280, 43 Atl. 33; Key v. Continental Ins. Co., 101 Mo. App. 344, 74 S. W. 162.”

Kupfersmith v. Delaware Ins. Co. of Philadelphia, 81 N. J. L. 664, 80 Atl. 561, is cited by the defendant. In that case it appears that the mortgagee and his assignees did not know of the existence of the policy, and did not have possession of it until after the fire, and that there was no assignment or delivery of the policy to any assignee until after such fire. In Franklin Fire Ins. Co. v. Butts, 184 Ark. 263, 42 S. W. (2d) 559, cited by defendant, the opinion states that it was not claimed that the insurance company was liable under any loss clause or assignment thereof, but that the claim of the plaintiff was based solely on a judgment which he had obtained against the insured. Hence it was not necessary in that case for the court to pass on any question of liability under a mortgage clause or assignment thereof. Whitlock v. American Cent. Ins. Co. of St. Louis, 107 Fla. 13, 144 So. 412, is cited by defendant. We have carefully considered this case and while it is in point, it gives no reasoning or statement of principles in support of its conclusion. We consider that the Central Union Bank case, supra, and the other cases therein cited in support thereof are based on the better reasoning and furnish us better precedents to follow, and in our opinion Reinhardt, trustee, as such assignee, has a right to maintain this action.

Defendant contends that inasmuch as its answer setting up the policy provision which provided that the policy should be void if the hazard was increased within the control or knowledge of the insured, and the provision that the policy should be void if any change of possession of the subject of insurance, except change of occupancy without increase of hazard, took place, and alleging that inasmuch as no permit was indorsed on the policy and the defendant gave no consent to any other occupancy, the fact that Chaney occupied the premises as a tavern with the knowledge and consent of the Huskamps was an increase in hazard which voided the policy as to the Huskamps, and that the failure of the plaintiffs, Mr. and Mrs. Huskamp, to reply thereto is an admission by them of such conclusion. The reply of the Huskamps alleged that on March 10, 1934, they notified the defendant through its agent, Vien, that Chaney would occupy the premises after March 15, 1934, as a residence and tavern, but that the defendant did not request the Huskamps or Reinhardt at any time to produce the policy and thereby waived the provisions of the policy. This part of the reply of the Huskamps sufficiently presented an issue as to whether the defendant was barred from setting up such defense by a waiver thereof on its part.

Defendant next contends that the use of the property by Chaney as a tavern'was in fact an increase in hazard and change in occupancy which voided the policy as to Mr. and Mrs. Huskamp. Assuming that the use of the property as a tavern was an increase in hazard and a change in occupancy, the question is, was there a waiver by defendant? Although there are decisions to the contrary from other jurisdictions, the law is well settled in Illinois that even though such a policy contains a stipulation that a waiver of a right of the company to cancel must be by endorsement on the policy, this stipulation can be waived by such company without a written endorsement, through its local agent authorized to issue the policy and receive premiums; that neither an express agreement to waive the condition nor an express consideration for the waiver is required; that if after knowledge of the breach, through its agent the insurance company remains silent, and retains the premium and does not manifest an election to cancel the policy, it will be held to have waived the condition and to be liable under the policy. (See Phenix Ins. Co. v. Grove, 215 Ill. 299, 302, and cases therein cited.) It follows that the trial court erred in sustaining defendant’s objection to the offer of plaintiffs Huskamp to prove a waiver by showing that defendant through its agent was given notice of the proposed change in occupancy and that defendant acquiesced in such change.

The next Contention is that Mr. and Mrs. Huskamp did not render a sworn statement of proof of loss as required by the policy, and that they are therefore barred from maintaining this suit. While the original proof of loss claimed to have been signed and sworn to by Mrs. Huskamp would have been the best evidence, and notice to produce the same should have been served on the defendant prior to trial in order to lay the foundation for secondary evidence, Mrs. Huskamp, without objection, testified that after notifying Vien, the agent of the defendant, of the fire, two days after the fire occurred, Vien, Jr., and a representative of the defendant came out and had her sign what they said was a proof of loss, and that several days after the fire she signed and swore to another paper at the office of Vien which “they” said was a proof of loss. The general objection that what they said was a conclusion was properly overruled. We believe there was sufficient proof of the presentation to defendant of a written proof of loss to make a prima facie case.

Counsel for defendant say in their brief that the lower court found against the plaintiffs upon the issue of the proof of loss, saying that the trial court was the judge of the facts and had the benefit of seeing the witnesses as they testified. The testimony of Mrs. Huskamp was not contradicted and was not inherently improbable. Therefore, in passing on the motion of the defendant for a judgment it was the duty of the trial court to assume such testimony to be true (see Kelly v. Jones, 290 Ill. 375) and to consider such evidence in its most favorable light to plaintiffs, together with all inferences in favor of plaintiffs, which could be legitimately drawn therefrom. (Hoigard v. Yellow Cab Co., 320 Ill. 317.)

Defendant’s next contention is that plaintiffs Sebastian Huskamp and Rose Huskamp cannot recover because the present suit was not commenced within a year next after the fire as provided by the policy. The original complaint was filed by Reinhardt, trustee, on May 12, 1935, to which complaint the Huskamps and the insurance company were made defendants. An amended complaint was filed on September 23, 1935, in which the Huskamps were named as coplaintiffs with Reinhardt, trustee. The trial court dismissed such amended complaint on the ground that leave of court had not been obtained tó file such amendment, but on appeal this court reversed such ruling and remanded the cause to the trial court. (Reinhardt v. Security Ins. Co. of New Haven, Conn., 287 Ill. App. 320.) The second amended complaint, on which the present case was tried, was filed May 10, 1937. Defendant, in an additional abstract furnished by it, has set forth the several paragraphs of its answer in which it alleged that the original complaint filed in this case by Reinhardt, in which complaint the Hnskamps were named as defendants, did not state a cause of action and that at the time of the filing of the respective amended complaints more than twelve months had elapsed since the fire and that this action was, therefore, barred under the express provisions of the policy. The original complaint was not made a part of the record in this case and its provisions do not appear from the record or abstract.

We think that the defense that suit was not filed within the time provided by the policy, was an affirmative defense and that the burden was on the defendant to establish the facts necessary to sustain such defense. Having no knowledge of the allegations of the original complaint, we are not in a position to decide whether the second amended complaint is a continuation of the original cause of action, except for the change in the position of the Huskamps from parties defendant to parties plaintiff, or whether an entirely new cause of action is stated by the amended complaint. In this state of the record we cannot say that defendant has established the defense that suit was not properly filed within the twelvemonths period so as to protect the rights of the Huskamps.

In its answer the defendant alleged as a defense against the Huskamps that they were barred from maintaining this action because suit was not commenced by either of them within the twelve-months period provided by the policy. On motion of the plaintiffs that part of the answer setting up this defense was stricken, and defendant has assigned as cross error such ruling of the trial court. It is our opinion that the defendant should have been permitted to plead and prove such alleged defense, and that the trial court therefore erred in striking such portion of the answer.

It is our opinion that the plaintiff Reinhardt, trustee, made a prima facie case entitling him to judgment for the amount due him as assignee of the mortgage indebtedness. It is also our opinion if the plaintiffs Huskamp had been permitted to introduce and had introduced evidence showing or tending to show a waiver of the condition of the policy with reference to an increase in hazard by reason of the change in occupancy, they would have made a prima facie case entitling them to judgment for the balance of the proceeds of the policy.

The case is reversed and remanded for further proceedings consistent with this opinion.

Reversed and remanded with directions.


author: Mr. Presiding Justice Scanlan

text:
    Board of Education of the City of Chicago, Appellee, v. George Snyder Crilly and Edgar Crilly, Appellants.
    Gen. No. 40,695.

      Heard in the second division of this court for the first district at the April term, 1939.
    Opinion filed November 28, 1941.
    Rehearing denied December 10, 1941.
    Irving B. Campbell, of Chicago, for appellants.
    Richard S. Folsom, Frank S. Righeimer and Edward R. Johnston, all of Chicago, for appellee; Albert E. Jenner, Jr., of Chicago, of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

This is an appeal from a summary judgment in the sum of $319,935 entered against defendants as alleged tenants of plaintiff. The judgment consisted of $279,216 for unpaid rent (with interest from November 27, 1935) which accrued over the ten-year period from May 8, 1925, to May 8, 1935, under a lease of school property located in downtown Chicago. In their brief defendants state that “the case was disposed of upon motions which put in issue the sufficiency of the amended complaint, answer, and counter-claim, as a matter of law.” The judgment was entered solely upon plaintiff’s motion for summary judgment. Plaintiff filed a motion in the nature of a demurrer to strike defendants’ affirmative defenses and their counterclaim, but the court did not rule upon that motion. In their reply brief defendants concede that the trial court did not pass upon plaintiff’s motion to strike, and that their counterclaim is not before us upon this appeal.

The amended complaint and amendment thereto allege that plaintiff is a municipal corporation and that “at the time of the leasing of the premises hereinafter mentioned, and at all times thereafter, said premises were held in trust by the' City of Chicago for the use and benefit of plaintiff for the use of schools with the right of possession, use, management, control and lease in plaintiff” (a copy of the lease is incorporated by reference); that the lease was for a term of fifty years ending May 8, 1930; that the rent was to equal six per cent of the appraised value of the land as determined at five year intervals; that on June 15, 1888, “a supplemental Indenture of Lease was entered into between plaintiff and Daniel F. Crilly and Charles H. Blair,” extending the term to May 8, 1985, changing the method of appointing appraisers, and lengthening the intervals between appraisements to ten years (a copy of the supplemental lease is made a part of the complaint by reference); that on February 18, 1889, said Blair assigned his interest to said Crilly, a copy of the assignment appearing on the lease attached to the complaint, and that said Crilly thereby “became the sole party in interest as lessee,” in the leases, premises, and buildings, and continued to be the owner thereof until June 19, 1921, when he died testate; that the will was admitted to probate and that under the will George Snyder Crilly, Frank Lloyd Crilly, and Edgar Crilly “were appointed and made Executors and Trustees of the Estate of Daniel F. Crilly, deceased”; that they “qualified as such executors and trustees, and, with the exception of Frank Lloyd Crilly, are now acting as such, and that as such Executors and Trustees they now hold all title to the aforesaid original and supplemental leases and the assignment hereinbefore mentioned, and the aforesaid defendants have been in possession of such premises as lessees thereof”; that Frank Lloyd Crilly had previously resigned and removed to California; that in January, 1925, appraisers were appointed and the true cash value of the premises fixed at $1,809,600; that defendants, together with Frank Lloyd Crilly, on July 28, 1925, filed a case in equity in the Superior court of Cook county, Illinois, entitled “George Snyder Crilly, Frank Lloyd Crilly and Edgar Crilly, as Executors and Trustees of the Estate of Daniel F. Crilly, Deceased, Complainants v. Board of Education of the City of Chicago, Defendant, General No. 423773,” in which they sought to enjoin the instant plaintiff from attempting to collect rent based upon said appraisement; that a temporary injunction was ordered on July 29, 1925, restraining the collection of any amount of rent in excess of $60,912 per year (being the rental fixed by the 1915 appraisement) from plaintiffs in said cause; that certain proceedings (describing them) were had in said cause and as a result the bill was dismissed for want of equity; that complainants in said cause appealed to the Supreme Court of Illinois (Union Trust Co. v. Board of Education, 348 Ill. 256) and on April 23, 1932, that court approved the appointment of the appraisers, but reversed the cause because of the mistaken basis of appraisal, and the cause was remanded to the Superior court to hear evidence and determine the true cash value of the leased lands as of May 8, 1925; that after the filing of the mandate of the Supreme Court plaintiff filed a cross bill in the Superior court praying that the court fix the cash value of the premises, “pursuant to the terms and provisions of the original and supplemental leases,” and in accordance with the directions of the Supreme Court; that defendants filed an answer to the cross bill; that the cause was referred to a master in chancery; that following a hearing upon exceptions to the master’s report a decree was entered on November 27, 1935, fixing the true cash value of the premises as of May 8, 1925, at $1,379,040. The complaint then alleges: “23. Plaintiff alleges that on the basis of the aforesaid appraisal, computed pursuant to the terms of the lease and supplemental lease, the amount of rental now due from the defendant lessees under said original and supplemental leases is $82,742.40 per year, or $20,685.60 per quarter. 24. Plaintiff alleges that the.lessees, George Snyder Crilly and Edgar Crilly, have paid to plaintiff on account of such quarterly rent the sum of $15,228.00 per quarter from May 8,1925, to May 8,1934, but have paid no sums whatsoever to plaintiff for the period from May 8, 1934, to May 8, 1935, and that there is, therefore, a deficiency in rental paid to plaintiff in the sum of $5,457.60 per quarter for the period from May 8,1925, to May 8,1934, amounting for said period to the sum of $196,473.60, and a deficiency in the sum of $20,685.60 per quarter for the period from May 8, 1934, to May 8,1935, amounting for said period to the sum of $82,742.40, the whole of the deficiency for the period May 8, 1925, to May 8, 1935, being the sum of $279,216.00.” (A copy of the aforesaid decree, attached to the original complaint as Exhibit C, is made a part of the amended complaint by express reference.) The complaint then alleges that under Section 2 of the Interest Act the deficiency of rent paid in the amount of $279,216 “becoming due and payable by virtue of the aforesaid lease and supplemental lease, bears interest at the rate of 5% per annum from and after November 27, 1935.” An amendment filed to the bill added, at this point, a copy of the will of Daniel F. Crilly as an exhibit, alleged that the leasehold was devised by the residue clause in the same to George Snyder Crilly, Frank Lloyd Crilly and Edgar Crilly, as trustees; that the trustees were empowered to collect rents, manage the property, and distribute the net income to persons named, including the trustees, defendants herein; that the will was admitted to probate on August 8, 1921; that two claims were filed; that the inventory listed more than enough money to pay claims, specific bequests, and costs and expenses of administration. The complaint then alleges, on information and belief, that the claims, specific bequests, attorneys’ fees and costs of administration have been paid and that the estate had been fully administered prior to "May 8, 1925, except for filing of a final account; that, upon information and belief, income has been distributed by defendants, as' trustees, during each year from 1922 to 1935. The complaint then alleges “that in the bill of complaint filed in the cause in the Superior Court of Cook County by defendants against this plaintiff, and known as No. 423773, it was •alleged by the defendants in this cause appearing in that proceeding as complainants, that from and after their qualification as Executors and Trustees of the Estate of Daniel F. Crilly, they held and continued to hold all title to the aforesaid original lease and supplemental lease and the assignment by Charles Blair to Daniel F. Crilly, and that Board of Education of the City of Chicago had received and accepted said complainants as lessees, and that they were and continued to be lessees under and by virtue of said lease, and this plaintiff, Board of Education of the City of Chicago, herewith alleges that the defendant, George Snyder Crilly and Edgar Crilly, were during the whole of the period from May 8,1925, to May 8,1935, in possession of the- aforesaid premises and the improvements thereon as lessees under the aforesaid lease, and that they are bound by the terms and conditions thereof individually and personally, and that said defendants, in and by said lease, and by their occupation of the premises thereunder as lessees, became and were lessees, and liable to pay the rents reserved in said lease and to perform all of the covenants on the part of the lessees to be performed in said lease contained. Plaintiff alleges that the defendants, having been in possession of said premises as lessees, during the period May 8, 1925, to May 8, 1935, are liable to this plaintiff for the unpaid rental due and owing under said lease in the sums and amounts as computed upon the fair cash market value of the land as of May 8, 1925, as fixed by the aforesaid Decree of the Superior Court of Cook County entered on November 27, 1935, less such sums as were paid by defendants during the period May 8, 1925, to May 8, 1935, plus interest at 5% from November 27, 1935, and plaintiff further states that no part of said sum ($279,216.00) has been paid to plaintiff by defendants. Wherefore, plaintiff asks judgment against defendants, George Snyder Crilly and Edgar Crilly, for the sum of $279,216.00, together with interest thereon at 5% from and after November 27, 1935.”

Defendants’ answer and amendments thereto admit the execution of the original and supplemental leases, but deny that plaintiff was a party thereto, for the reason that plaintiff did not exist prior to 1917, when it was incorporated; deny that the City of Chicago held title to the premises in question for the use and benefit of plaintiff, but admit that such title was held in trust for the use of schools; deny that plaintiff has any interest in the lease because the lessor was not the plaintiff but only a department of the municipal government of the City of Chicago having the same name; admit the assignment of the leases to Daniel F. Crilly, his ownership thereof, his death, proof of his will, and that defendants and Frank Lloyd Crilly were by said will appointed executors and trustees of the estate; deny that they had been in possession of said premises, or held title to said leases and supplemental lease, as trustees, and allege that they had been acting as executors only, and that said leases had Hot been distributed to them as trustees; admit the resignation of Frank Lloyd Crilly, the appointment of appraisers in 1925, and the making of the appraisement; admit the filing of the bill in equity in the Superior court of Cook county in their representative capacity, but not as individuals, and admit all of the proceedings in said cause as alleged in the complaint, save the issuance of the temporary injunction; and as to said temporary injunction defendants allege that plaintiff was thereby only restrained from collecting or attempting to collect rent in excess of $60,912 per year from ‘ ‘ George Snyder Crilly, Frank Lloyd Crilly and Edgar Crilly, as executors and trustees of the Estate of Daniel F. Crilly, deceased”; allege that defendants were not, individually, parties to said cause, and that, therefore, the bringing of the instant action by plaintiff was not restrained. The answer also alleges that the cross-bill filed by the Board of Education in the equity case after it was remanded by the Supreme Court named as defendants and prayed relief against ‘ ‘ George Snyder Crilly, Frank Lloyd Crilly and Edgar Crilly, as executors and trustees under the will of Daniel F. Crilly, deceased, and not against these defendants individually, and that these defendants as individuals were not parties to, or bound or affected by, the proceedings or decree in that case to any extent whatever, and that such proceedings are not material to this case”; that defendants answered said cross-bill in their representative capacity only; that defendants admit the subsequent proceedings on the cross-bill, including the fixing of the value of the premises by decree of the court, but they deny materiality of the same in the instant cause; admit that their answer admitted the correctness of the computations of unpaid rental on the basis of such valuation, but deny that such sums are owing by defendants to plaintiff; allege that all payments of rental mentioned in the decree were made by defendants as executors, and not individually, and that the complaint shows on its face that all payments which accrued prior to February 28, 1931, are barred by the five-year Statute of Limitations. Defendants also deny in their answer that plaintiff is entitled to interest under the Interest Act. Defendants further admit all of the allegations of the complaint relating to the probate of the will of Daniel F. Crilly, save one, viz., that the administration of the estate had been completed, and allege in that connection that attorneys’ fees and court costs were unpaid; that the executors had been engaged in litigation concerning federal estate taxes until July, 1929, when the same was decided in favor of the executors, and that since 1925 the executors have been involved in litigation concerning the revaluation of the premises and that the trustees had refused to accept title until the rent had been ascertained; further allege that under the provisions of the will of Daniel F. Crilly the executors have power to manage the property and distribute net income until the leasehold may be assigned to the trustees. Defendants admit that they had been in possession of the premises, but allege that they entered and held possession as executors and not as trustees. As heretofore stated, defendants’ counterclaim cannot be considered on this appeal.

Defendants contend that “plaintiff is not the lessor in the lease, as alleged in the amended complaint”; that “the City of Chicago is the lessor in the lease”;that “the City of Chicago is actually the lessor, because the Board of Education in 1881 was a mere department of the city government.” This contention .is an afterthought and without merit. The Otis Act was enacted in 1917 and the original lease and supplemental lease were entered into prior to that date. Both were made between the “Board of Education of the City of Chicago, party of the first part, and Daniel F. Crilly and Charles H. Blair, same place, parties of the second part.” By the terms of the leases Crilly and Blair recognized the said Board, as it existed in 1880 and 1888, as a body of the City, having the right to lease the school property in question as lessor, and defendants, as trustees, executors or beneficiaries under the Crilly will, are bound by the act of their predecessors. Upon the death of their father, Daniel F. Crilly, in 1921, defendants, as executors or trustees, or in both capacities, entered into possession of the premises under his will, and thereafter attorned to the present Board of Education of the City of Chicago, thus recognizing said Board as the lessor under the lease. When defendants, as trustees and executors, filed their verified complaint in equity attacking the original 1925 appraisal, they did not bring suit against the City of Chicago but against the instant plaintiff, as sole defendant; the complainants there treated plaintiff as the lessor and as the sole agency entitled to enforce the terms of the lease, and they asked that plaintiff, not the City of Chicago, be enjoined from enforcing the 1925 appraisement of the school land, on the ground that the appraisals were not made in accordance with the terms of the original and supplemental leases, and the preliminary injunction they obtained enjoined only plaintiff. An examination of the opinion of the Supreme Court upon the appeal in that case (Union Trust Co. v. Board of Education, supra) discloses that the instant point urged by defendants was not raised nor suggested in that proceeding, although many distinguished attorneys represented the appellants in that case; all of the appellants there recognized the right of plaintiff to enforce the terms of the lease. But defendants contend that they were not in court in that proceeding as individuals and that anything they there did they did as trustees and executors, and their rights as individuals were not affected; that they, as individuals, are not in privity with themselves in their representative capacity, and, therefore, as individuals they are strangers to the chancery proceeding; that “they did owe a duty to the real owners of the property concerned to represent their interests to the best of their ability, and that, and that only, is what they were doing when they participated in the trial. . . . Their rights remain unaffected, just as though it [the judgment] had never been rendered.” Defendants were not only made trustees and executors under the will of Daniel F. Crilly, but beneficiaries. The will directs “that all the balance of the net income from said trust estate shall be distributed and paid in equal shares to my five children, George Snyder Crilly, Frank Lloyd Crilly, Edgar Crilly, Erminnie Crilly Mathews, and Isabelle Crilly Butler, share and share alike; such payments to my said children to be made to each of them quarterly on or before the fifteenth day of the months of May, August, November and February in each year, for and during the term of their natural lives, respectively . . . .” The will further provides that every payment or distribution to any beneficiary shall be made to such beneficiary direct, so that the defendants, as trustees, made direct payments to themselves, as beneficiaries. It seems idle to argue that there is no relationship between defendants in their representative capacity and their individual capacity in the same rights of property. As plaintiff states it, “defendants, as individuals, were identified with themselves as executors and trustees in the same rights of property.” The defendants occupy a dual, indeed, a plural, capacity under the will, but this unusual situation should not be allowed to be the means of defeating a just claim. As trustees and executors, they controlled the prosecution of the chancery case, in which they were individually interested. We cannot agree with the contention that as individuals they were “strangers to the chancery proceeding.” As we have heretofore shown, defendants admit that the beneficiaries were the real owners of the property concerned and interested in the chancery proceedings.

In Freeman on Judgments, vol. 1, sec. 174, p. 319, the author states: “Whenever one has an interest in the prosecution or defense of an action, and he, in the advancement or protection of such interest, openly takes substantial control of such prosecution or defense, the judgment, when recovered therein, is conclusive for and against him to the same extent as if he were the nominal as well as the real party to the action.”

In Corcoran v. Chesapeake & O., Canal Co., 94 U. S. 741, plaintiff sued as trustee under a bond issue and the issue was determined adversely to him. He then brought suit as owner of some of the bonds, claiming that he was not bound by the former decree because he was not a party, individually, to the first proceeding. The Supreme Court said (p. 745): “It is also argued that in that suit Corcoran was only a party in his representative capacity of trustee, and he here sues in his individual character as owner of the bonds and coupons, and in this latter capacity is not bound by that decree. But why is he not bound? It was his duty as trustee to represent and protect the holders of these bonds; and for that reason he was made a party, and he faithfully discharged that duty. It would be a new and very dangerous doctrine in the equity practice to hold that the cestui que trust is not bound by the decree against his trustee in the very matter of the trust for which he was appointed. If Corcoran owned any of these bonds and coupons then, he is bound, because he was representing himself. If he has bought them since, he is bound as privy to the person who was represented. Kerrison v. Stewart, 93 U. S. 155, and the authorities there collected.”

In State v. Stone, 190 S. W. (Mo.) 601, the court said (p. 603): “Whenever a party is interested in the subject-matter of pending litigation, and is placed in the control and management of the defense therein, he is just as much bound by the judgment in the cause as the real defendant, in whose name the defense is made.” (Citing cases.)

In American Bible Society v. Price, 115 Ill. 623, the court said (pp. 644, 645): “The title is in the trustees, and the duty is imposed upon them to protect and preserve this interest for whomsoever shall be ultimately entitled to it. They are parties to the suit, and they stand for and represent, in this litigation, the ownership ultimately entitled to this fund, and such ownership is bound by their representation. Story’s Equity Pleadings, secs. 140, 141, 145, 150; Hopkirk v. Page, 2 Brock. 42; American Bible Society v. Price, 110 U. S. 61.” See, also, Easton v. Hall, 323 Ill. 397, 425, where the court quotes with approval the above statement of law, and adds: “So far as Shelton F. McGrath is concerned, he is an attorney for the appellant in this case, and having qdvised, directed and prosecuted the suit, although he is not a party to the record, is bound by the decree. Lightcap v. Bradley, 186 Ill. 510.”

In the instant case, defendant George Snyder Crilly is an attorney at law, practicing at the Chicago bar.

In Lightcap v. Bradley, 186 Ill. 510, the court said (p. 530): “Where a suit is advised, directed and prosecuted by a party in that manner, although he is not a party to the record, he is bound by the decree. (Freeman on Judgments, sec. 174; Cole v. Favorite, 69 Ill. 457; Bennitt v. Wilmington Star Mining Co., 119 id. 9.)”

But it is not necessary for us to pass upon the question as to whether the defendants, as individuals, are bound by the chancery decree. It is only necessary for us to decide whether certain allegations in the verified bill, to the effect that the defendants, as executors and trustees under the will of Crilly, were in possession of the premises as executors and trustees and that plaintiff had accepted them as such, are competent evidence, in the nature of admissions, that tend to support plaintiff’s theory of fact that defendants were in possession of the premises as trustees. We hold that such allegations are competent for the above purpose. Under the facts of this case it would be rank injustice to hold that defendants, as individuals, were strangers to the chancery proceedings. Defendants admit that the beneficiaries under the will were the real owners of the property concerned and that it was their duty, as plaintiffs in the chancery proceedings, to represent their interest. The defendants, as individuals, were beneficiaries under the will.

Since the instant case was taken on the call, defendants were allowed to cite the case of Flanagan v. First Nat. Bank of Chicago, 307 Ill. App. 495, as additional authority in support of their contention that “the defendants, individually, are not bound or affected by the decree in the equity case, to which they were parties only in their representative capacity.” As we have heretofore stated, we are not obliged to pass upon the question as to whether the defendants individually are bound by the decree in the equity case. We may state, however, that the Flanagan case bears no resemblance to the instant case upon the facts.

We find no merit in the further contention of defendants that any right of action under the lease is in the City of Chicago alone. The 1917 amendments to the School Act did not, in our judgment, effect a change of lessor under the old leases, but the Board of Education, under the said amendments, succeeded to the rights of the Board of Education as it existed prior to 1917. The Supreme Court, in Union Trust Co. v. Board of Education, supra, said (p. 263): “Contracts involving the rental of school lands vitally affect the public interest and are to be construed liberally in favor of the public. (Joy v. St. Louis, 138 U. S. 1; Williston, on Contracts, (2d ed.) sec. 626, p. 1210; Omaha Water Co. v. City of Omaha, 162 Fed. 225.)”

What we have stated in connection with the defendants’ first point disposes of their second point, viz., “There is no privity of estate between plaintiff and defendants.”

The third, fourth and fifth contentions raised by defendants may be considered together. They are: “III. The five-year statute of limitations applies to an action for rent against an assignee of a lease, based on privity of estate.” “IV. The cause of action asserted in this suit accrued in installments on the dates when payments of rent were to he made, rather than upon the entry of the final decree in the revaluation case, as plaintiff contends.” “V. The temporary injunction entered in the former case did not restrain plaintiff from enforcing the cause of action asserted in this case.” We find no merit in these contentions. It makes but little difference in this case whether the five or ten-year Statute of Limitations applies. Plaintiff’s cause of action did not accrue until the 1925 appraisal was completed and the amount of yearly rent thereby fixed. Plaintiff’s action is to recover rent based upon the final appraisal, and it was commenced within three months after the entry of the decree fixing the fair cash market value of the land for the 1925-1935 decennial period. In the opinion of the Supreme Court in Union Trust Co. v. Board of Education, supra, we find that all of the appellants in that proceeding admitted that an appraisal was made in 1925, hut insisted that the appraisal was unlawful because it was founded upon an erroneous principle of valuation, and the Supreme Court sustained this contention and remanded the cause “with directions there to hear evidence and determine the true cash value of the leased lands as of May 8, 1925.” The Supreme Court characterized defendants’ bill in equity as an action to enjoin the Board of Education of the City of Chicago from enforcing the 1925 appraisement of school land, on the ground that the appraisals were not made in accordance with the terms of the original and supplemental leases, and the court further states (p. 259) .that “preliminary injunctions were granted restraining the board of education from attempting to collect any greater sum as rent for the several leaseholds than the quarterly rent due under the 1915 appraisal.” The Supreme Court, in effect, held that before plaintiff would have a right of action under the leases for rent due for a decennial period it was necessary, that an appraisal be made to fix the rent for that period. Moreover, the entry of the temporary injunction tolled the running of the period of limitations. The contention of defendants that plaintiff, despite the preliminary injunction, was free to sue them, as individuals, is without merit.

The defense of the Statute of Frauds, interposed by defendants, is also without merit.

Defendants concede that after the probate of the Daniel F. Crilly will they entered into possession of the premises as executors under that will, but contend that they did not enter into possession as trustees under the will, and further contend that the burden was upon plaintiff to show that defendants accepted the trust created by the will and acted as trustees. It is obvious why defendants take this position: the law is well settled that testamentary trustees in possession under a lease are individually liable for the rent that accrues under the lease. The leading ease on the subject is McLaughlin v. Minnesota Loan & Trust Co., 255 N. W. (Minn.) 839. There the Minnesota Supreme Court, in an able and exhaustive opinion, reviewed the law bearing upon the subject. Among the assets of the estate in that case was a lease, and the Trust Company, a testamentary trustee, entered into posr session of the premises. Defendant did not expressly assume or otherwise agree to be bound by any covenant of the lease. To quote from the opinion (p. 839): “Plaintiffs declare on the covenants of the lease, running with the land, to pay rent, taxes, and assessments, keep the building on the premises insured and in reasonable repair. . . . The only issue presented by the record is whether because of its possession of the property as testamentary trustee, it is liable on the covenants already mentioned to pay rent, taxes, and assessments, running with the land or title. The Short trust is said to be insolvent. The leasehold is of little or no present value.” (Italics ours.) The court held that a testamentary trustee accepting a leasehold as part of trust property becomes an assignee thereof and as such personally liable on the covenants of the lease running with the title to pay rent and taxes. In that case counsel for the Trust Company strenuously argued that to impose this liability on the trustees would create great hardship, and it is relevant and appropriate, in the instant case, to quote the language of the court in answer to that argument (p. 842): “Argument has dwelt upon the hardship supposed to result from the imposition of liability upon trustees. One answer is that, were it otherwise, there would be similar hardship and resulting loss to lessors and their assignees. Another is the reciprocity of the rule, for there are conventional covenants to the performance of which by lessor or reversioner a trustee as assignee of the lease is entitled. Finally, trustees become such voluntarily. They are privileged to decline. They may refuse to accept a leasehold as part of trust property, thereby avoiding-personal liability under the covenants of the lease. Doubtless, by negotiating with the reversioner, they can in many cases come to an agreement whereby their liability will be brought within the limits of the profit from the demised property. Liability can be terminated by assignment. So the balance of convenience and hardship does not weigh unduly against trustees as a class. But that is not the reason for this decision, which is but a declaration of the law as we find it. Long has it been so, and changes therein are for Legislatures rather than judges.”

Defendants do not seem to question the ruling in the Minnesota ease but they seek to avoid the effect of it in the following way: They contend that “the question whether defendants were in possession as executors or as trustees is a question of factefor the jury”; that “they [defendants] admittedly having gone into possession as executors, something more than continued possession is necessary to charge them as trustees. They must, by words or action show unequivocally that they had become trustees”; that “they cannot be held liable as trustees until they have accepted the trust, and this must be shown by competent proof”; that “the affidavits [defendants] filed show an express, clear refusal to accept title to the leasehold as trustees. Defendants deny under oath that they have ever acted as trustees or accepted the trust — they have the negative of this issue — and we believe that plaintiff, in order to sustain the burden of proof, must show an actual acceptance, and that the jury must decide this issue.” As we understand defendants’ position they do not contend that plaintiff did not make out a prima facie case, under the pleadings and affidavits, that defendants were in possession of the premises as trustees, but they contend “that their affidavits show that there is a bona fide issue of fact on the question whether they were in possession as executors or trustees,” and that, therefore, the trial court erred in entering a summary judgment. Plaintiff, in its amended complaint, alleges that defendants in the bill of complaint filed by them in the Superior court of Cook county, entitled “George Snyder Crilly, Franh Lloyd Crilly and Edgar Crilly, as Executors and Trustees of the Estate of Daniel F. Crilly, Deceased, Complainants, v. Board of Education of the City of Chicago, Defendant, General Number 423773,” alleged “that from and after their qualification as Executors and Trustees of the Estate of Daniel F. Crilly, they held and continued to hold all title to the aforesaid original lease and supplemental lease and the assignment by Charles Blair to Daniel F. Crilly, and that Board of Education of the City of Chicago had received and accepted said complainants as lessees, and that they were and continued to be lessees under and by virtue of said lease, and this plaintiff, Board of Education of the City of Chicago, herewith alleges that the defendants, George Snyder Crilly and Edgar Crilly, were during the whole of the period from May 8, 1925, to May 8, 1935, in possession of the aforesaid premises and the improvements thereon as lessees under the aforesaid lease,” etc. Defendants’ answer to these specific allegations is as follows: “The facts which are here alleged in the amended complaint are admitted except that defendants allege that they were in possession of said premises only as executors. All conclusions of the plaintiff are denied.” In other words, defendants, in said answer, do not question plaintiff’s allegations as to the allegations that were contained in the bill of complaint, but they allege, in effect, that notwithstanding the allegations contained in the bill of complaint they were in possession of said premises only as executors. This position is consistent with their contention, strenuously argued, that they, individually, are strangers to the chancery proceedings. We have heretofore held that certain allegations in the chancery bill are competent evidence against defendants for certain purposes. Having successfully maintained their equitable action against plaintiff upon the theory that they were in possession of the premises as executors and trustees and acting as such, defendants should not now be heard to contend that they, as executors, never assigned the leases to themselves as trustees, and never qualified or acted as trustees, or entered into possession of the premises as trustees. The opinion of the Supreme Court shows (p. 258) that all of the appellants in that case held themselves out as lessees or assignees-of lessees under leases originally made in 1880. The Supreme Court states that the allegations in each of the nine bills of complaint before the court were substantially the same, and the court further states (p. 258): “The appraisals . . . were not satisfactory to the lessees, who filed a bill in the superior court of Cook county to enjoin their enforcement.” (Italics ours.) The defendants, as executors and trustees, obtained relief in the equity case, but now, when plaintiff seeks to obtain rent from them, upon the theory that they were trustees, in possession of the premises under the lease, they raise the defense that a jury should pass upon the question as to whether they were in possession of the premises as executors or as trustees. They concede that they distributed the net income of the trust estate to the beneficiaries under the will, but they contend that this fact is not proof that they accepted the trust and made the said payments as trustees. The argument is that the will, construed as a whole, authorizes payment of income to the beneficiaries by the executors until such time as the trustees shall receive the residue of the estate. A careful study of the provisions of the will convinces us that it does not authorize defendants as executors to distribute the net income of the trust estate to the beneficiaries. The will plainly directs the defendants, as trustees, to make the distribution to the beneficiaries “from said trust estate,” and the defendants, as executors, would have no right to make distributions “from said trust estate.” As plaintiff argues: “It is obvious that when defendants made distribution pursuant to the terms of the trust, they were necessarily acting as trustees. They could not deal with the trust assets without becoming trustees. They could not accept distribution of assets as beneficiaries of a trust and still maintain that no trust ever existed.” The will was admitted to probate over twenty years ago. Defendants allege it is still in probate. They admit that all the debts of the estate were paid by the end of April, 1922 (the decennial period 1925 to 1935 did not commence until May 8, 1925); that all assets had been collected, and that cash assets in the estate at the time of the death of the testator were sufficient to pay debts, costs, and attorneys’ fees; that the legacies were paid and that regular distributions of the net income from the trust estate were made to themselves, their brothers, and sisters, as beneficiaries of the trust created under the will. Where the same persons are named as executors and trustees it will be presumed, after a reasonable time to administer the estate has elapsed, that they have begun to function as trustees, even though the trustees deny they acted as trustees. (See Coudon v. Updegraff, 83 Atl. (Md.) 145; State v. Beardsley, 82 So. (Fla.) 794; Moberley’s Guardian v. Mt. Sterling Nat. Bank, 219 S. W. (Ky.) 423.)

The question as to whether defendants were acting as trustees must be determined from the nature of the acts performed, and if they were such as could be performed by them only in their capacity as trustees, the mere assertion by them that they performed them as executors and not as trustees avails them nothing and does not tend to raise an issue of fact as to the character of the acts performed. We are of the opinion that certain uncontradicted facts in the case prove conclusively that the defendants were in possession of the premises as trustees, and that the trial court did not err in entering the summary judgment.

Plaintiff strenuously argues that “even if it be conceded that defendants were in possession of the premises as executors, they are still individually liable for the full amount of the unpaid rent.” This contention is not without force, but in view of our conclusion that defendants were in possession of the premises as trustees, we do not deem it necessary to pass upon plaintiff’s contention.

Defendants contend that “the statute authorizing summary judgment proceedings does not authorize the court to decide issues of fact upon motion, by affidavit or otherwise, and if the answering affidavit affirms facts constituting a defense, the motion should be denied.” This contention is based upon the assumption that there was an issue of fact as to whether defendants were in possession of the leased premises as trustees, and we have already disposed of that question.

Defendants’ contention that “plaintiff is not entitled to interest under the Interest Act,” is without merit. In a long brief defendants devote but a few lines to this contention, and cite no authorities in support of it. The trial court allowed plaintiff statutory interest from the date of the entry of the decree of the Superior court fixing the fair cash market value of the premises as of May 8, 1925. The allowance of interest was made pursuant to section 2 of the Interest Act (Ill. Rev. Stat. 1937, ch. 74, sec. 2 [Jones Ill. Stats. Ann. 67.02]), which provides that “creditors shall be allowed to receive at the rate of five (5) per centum per annum for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing.” Interest is properly awarded upon rent due under a lease. (Kelly v. Galbraith, 186 Ill. 593; Heissler v. Stose, 33 Ill. App. 39, aff’d 131 Ill. 393.) The lease fixes the measure of defendants’ liability. The rent covenant runs with the land, and defendants being in possession under the lease are bound by its terms and conditions, and rent coming due is money due “on any . . . instrument of writing.”

The unpaid rent for which plaintiff sues accrued over the ten-year period from May 8, 1925, to May 8, 1935, during which time defendants occupied the premises. They paid partial rent for nine years and no rent whatever during the tenth year. The matter of the 1925 appraisal was litigated from January, 1925, to November, 1935, and during all that time the income of the property was distributed to the beneficiaries, two of whom were the defendants. After the decree of November 27, 1935, in favor of plaintiff had been entered, it was compelled, in December, 1935, to declare a forfeiture of the lease, for failure to pay rent, and plaintiff has been in possession of the premises since February, 1936. During all of these years the public school fund has been deprived of rents that were sorely needed. In our judgment defendants have no defense, upon the merits, to plaintiff’s claim, and we think it is high time that this litigation should end.

The judgment of the Circuit court of Cook county is affirmed.

Judgment affirmed.

Sullivan and Friend, JJ., concur.