text:
    Walter P. Dwight v. Loring P. Chase.
    1. Fraudulent misrepresentations—Knowledge.—It is the well settled doctrine in this State that there must be knowledge of the falsity of the statement to render it fraudulent.
    2. Pleading—Allegations.—The declaration alleged that the defendant falsely, fraudulently and deceitfully represented to the plaintiff that said business yielded $2,000 per annum, and was and had been worth that much, etc., and there was an allegation that the said business was entirely worthless. This was not a sufficient traverse of the specific charges of fraud contained in the count. The denial must be by express contradiction in the terms of the allegation traversed.
    3. Statements as to value—When they become material.—While it is the general doctrine that a mere statement as to the value of property, or as to its quality, are not evidence of legal fraud sufficient to justify a recovery on that ground, the representation by defendant that his said business as a real estate and loan broker was large and profitable, and that his income therefrom was worth and yielded $3,000 per annum, admitted by the demurrer to have been falsely and fraudulently made to deceive the plaintiff, and to have been wholly untrue, was not the mere expression of an opinion about the value of property. It was the false assertion of the existence of a material fact, a fact intangible in its nature, and the truth of which was peculiarly within the knowledge of defendant, and by it plaintiff was deceived and induced to part with his money.
    Appear from the Circuit Court of McLean county; the Hon. Owen T. Eeeves, Judge, presiding.
    Mr. Newton B. Heed, for appellant.
    Messrs. Broomfield & Hughes, for appellee;
    argued that no action lies against a vendor for false statements in regard to the value or good qualities of the property, and cited Nœtling v.Wright, 72 Ill. 390; Hemmer v. Cooper, 8 Allen, 334; Manning v. Albee, 11 Allen, 520; Saunders v. Hatterman, 2 Ired. 82; Cooper v. Lovering, 106 Mass. 79; Banta v. Palmer, 47 Ill. 99; Merwin v. Arbuckle, 81 Ill. 501; Miller v. Craig, 36 Ill. 109.
   Higbee, P. J.

The declaration in this case contains two

counts. The first count is as follows: For that, whereas, heretofore, to wit: On the first day of December, A. D. 1876, the said defendant was a real estate agent and broker in Chicago, Illinois; and the plaintiff for a long time, to wit: four years' prior to the committing of the grievances as hereinafter mentioned, was a resident of Detroit, Michigan, and at the time said grievances were committed, was, to wit, twenty-one years of age. And prior to November, 1871, plaintiff had resided in Chicago, Illinois, where plaintiff was intimately acquainted with defendant, who, at the time, or a short time prior thereto, was the superintendent of Plymouth Church Sunday-school; and as such friend and sunday-school officer, the said defendant won the confidence of plaintiff, and when the plaintiff returned to Chicago, as aforesaid, after an absence of, to wit, four years, he supposed said defendant was an honest, truthful and reliable man, as he had prior to that time supposed him to be. But at the time aforesaid, to wit: December 1st, 1876, the said defendant falsely and fraudulently represented to the plaintiff that he, the defendant, was doing a large and prosperous business as a real estate and loan broker, in Chicago, Illinois, and being desirous of disposing of one-half of his interest in said business, and the good will thereof, at, to wit, the time and place aforesaid, wrongfully and injuriously contriving and intending to deceive, defraud and injure the said plaintiff in this behalf, then and there falsely, fraudulently and deceitfully represented and asserted to the plaintiff that said defendant’s income from his said business, was large and profitable, and yielded an income over and above all expenses of, to wit, §3,000 per annum; and that he, the defendant, had at said time, a large and profitable business, and the defendant’s good will in said one-half interest in said business was easily worth $3,000. And the said defendant, at the time aforesaid, further fraudulently and deceitfully represented to the plaintiff, with intent to injure, deceive and defraud him, that said defendant was the owner of lots twenty-two and twenty-three, block eighteen, in Irving Park, Cook county, Illinois, and that the said defendant at the time and place aforesaid, agreed with plaintiff that he, said defendant, would convey said lots to'plaintiff if plaintiff would buy the said one-half interest in the said real estate business, and the good will thereof, for the said sum of $3,000. And said defendant, with intent to injure, defraud and deceive plaintiff, falsely, fraudulently and deceitfully represented to plaintiff that said lots were worth as much as $3,000, and could easily be sold for that sum at, etc., aforesaid; and the said plaintiff, confiding as aforesaid, in the said representations and assertions of the said defendant, at the special, instance and request of the said defendant, bargained with him to buy of him one-half of the said defendant’s interest in the said real estate business, and his good will in the same, for a certain sum, to wit: the sum of $3,000; and the said defendant, by then and there falsely, fraudulently and deceitfully pretending and representing to the said plaintiff that the said false, fraudulent and deceitful representations were true, then and there sold the said one-half interest in said business, and the good will thereof, to the said plaintiff, at and for the said sum of money, to wit: $3,000; and the plaintiff afterwards, to wit: on the day and year last aforesaid, paid the defendant the said sum of money for the same; whereas, in fact, the said defendant’s one-half interest, and the said defendant’s good will therein, have not, nor had they been, worth as much as one cent; but, on the contrary, were entirely worthless, and the said defendant did not own said lots, nor did he convey the same or any other lots to plaintiff, nor were said lots at that time worth $3,000; but, on the contrary, were not worth over $500, as the defendant well knew at the time he made his said false and deceitful representations. And the said plaintiff further says, that the said defendant, by means of the promises at the time and place aforesaid, falsely and fraudulently deceived the said plaintiff in the said sale, and the said business was and still is worthless and of no value to the plaintiff; and wherefore the plaintiff hath suffered great trouble and damages, to the amount of $6,000, and therefore he brings this suit, etc.”

To this declaration, and each count thereof, a general demurrer was filed, and sustained by the court below.

Plaintiff brings the case here by appeal, and assigns for error the decision of the court below in sustaining the demurrer to each count of his declaration.

The material allegations in the second count are that the defendant falsely, fraudulently and deceitfully represented to plaintiff that the income from the said business yielded $2,000 per annum, and was and had been worth that much, and that a half interest and the good will of the same was worth $3,000.

The general allegation that the said business was entirely worthless,” is not a sufficient traverse of the specific charges of fraud in the count.

The denial must be by express contradiction in terms of the allegation traversed. Stephen PI. 154; 2 Chitty PI. 688. The demurrer was properly sustained to this count. The only remaining question is as to the sufficiency of the first count. This count is copied from 2 Chitty’s PL p. 688, and was adopted and sustained in Dobell v. Stephens, 3 B. & C. 623.

In Paisley v. Freeman, 3 T. B. §1, Justice Buller says: “ That fraud without damage, or damage without fraud, gives no cause of action, but where these two concur an action-lies;” and that “ if a man will wickedly assert that which he knows to be false, and thereby draw his neighbor into a heavy loss, the law should compel him to pay for it.”

This language was quoted approvingly by the court in Benton v. Pratt, 2 Wend. 368, and in Upton v. Vail, 6 Johnson, 181. Kent, C. J., quotes Paisley v. Freeman as standing upon the clearest principles of jurisprudence, and adds: “ But independent of the English cases, I place my opinion upon the broad doctrine that fraud and damage coupled together will sustain an action.” These cases are cited and approved by Mr. Justice Breese, in Weatherford v. Fishbaek, 3 Scam. 170.

In Culver v. Avery, 7 Wend. 380, the same doctrine was held, and that there was no distinction whether the false representations relate to real or personal property; and in Monell & Weller v. Colden, 13 Johnson, 396, a recovery was had in case for fraudulent representations on sale of land, that a certain privilege was connected with it.

In Medbury et al. v. Watson, 7 Metc. (Mass.) p. —, the case of Paisly v. Freeman, is quoted and approved, by the court in the following language: “This case though much contested, and though often attempted to be shaken, has received the sanction of successive decisions in Westminister Hall and in the courts of different States in this country.”

It is. true that the municipal law does not apply ' the rule of the moral law, that we should do unto others as we would that they should do tinto us, to commercial transactions, nor does it lay down any certain definitions of fraud to apply in all cases.

But while it tolerates a certain amount of selfish cunning, it will not permit it to be carried to the extent of justifying one in wickedly and knowingly making false and fraudulent representations about material facts to deceive the unwary to their damage.

It is admitted by the demurrer in this case that the defendant, with intent to defraud and deceive plaintiff, falsely, fraudulently and deceitfully represented and asserted to him that the income from his said business was worth and yielded $3,000 per annum, clear of all expenses, and that the one-half interest was worth $3,000; and that the plaintiff confiding in these representations, was thereby induced to purchase the one half interest in his said business and pay $3,000 therefor; whereas, in fact, the said business was not, nor had it been worth as much as one cent, as defendant well knew when he made said representations.

Here is a case where the willful fraud of the defendant results in damage to the plaintiff. But it is urged by defendant’s attorneys that there can be no recovery, because the representations were of the value of the property to be sold, and that even if false, no action can be maintained therefor; and numerous authorities are cited to sustain this position.

We admit the doctrine to be well settled that the mere statement of the vendor as to the value of property, real or personal, or as to its qualities, or what he paid for it, or has been offered for it, are not evidence of legal fraud to justify a recovery. One of the reasons given for it is, that it is mere matter of opinion only, about which persons may well differ: Another reason given is, the difficulty of proving a mere statement of opinion to be false, for no one can know what another thinks with any certainty, unless the opinion is of some tangi ble matter of fact plainly before one’s eyes, and then it would generally be falsehood as to fact. 2 Parsons on Contracts, 778.

Again, in the sale of real or personal property, the vendor has the right to exalt the value of his own property and depreciate that of the purchaser, and when the purchaser has it in his power to examine the property, he must ordinarily do so, and judge of its value for himself; and in all such cases, in the absence of a fraud, the rule of caveat emptor applies. These rules, however, are not applicable to this case. This was not the purchase of tangible property which could be inspected by the plaintiff. It was the purchase of one-half of the defendant’s business as a real estate and loan agent.

As determining the value of the business, it was material for him to know what the yearly income from it had been and was then. This important fact was peculiarly within the knowledge of the defendant. He alone could give- correct information upon the subject, and the plaintiff was not guilty of negligence in relying upon his representations upon the subject. Lyney v. Selby, 2 Ld. R. 1118, was an action on the case to recover for deceit. Defendant had sold to plaintiff a lease, and pending the treaty he falsely and fraudulently represented to the plaintiff that the premises were demised at the yearly rent of 68k, to which representation plaintiff gave credit and purchased for 105k; whereas, the premises were in fact demised at a yearly rent of only 52k 10s. Holt, O. J. said: “ If the vendor gives in a particular of the rents, and the vendee says he will trust him and inquire no farther, but rely on his particular, then if the partiuclar be false, an action will lie.”

Gould, Justice, said the “ value of the rents was a thing hard to be known, and in secret known to none but the landlord and the ten ants, and they might be in confederacy together.” Plaintiff recovered his damages.

In Dobell v. Stephens, 3 B. & C. 623, the facts were that the defendant kept a public house, and was possessed of a lease of the house for a term of years, and the plaintiff being in treaty with the defendant to purchase his interest in the house, the defendant falsely represented to plaintiff that the receipts for the spirits sold in the house had been and then amounted to the sum of 160k per month; that the quantity of porter sold in the house amounted to seven butts per month; that two rooms in the house rented for '27k per annum, etc., by means of which false representations plaintiff''was induced to buy, etc. The declaration then averred that each of the particular statements were false, etc. The court held the action well brought, and plaintiff recovered his damages.

This case is quoted and approved by the Supreme Court of Indiana, in Shaeffer v. Sleade et al. 7 Black. 178, where it is said by the court: “ At law an action may be maintained for false representations made by a vendor to a purchaser of matters within the peculiar knowledge of the vendor, whereby the purchaser is injured.”

The case of Bowing et al. Stephens, 2 C. & P. 337, was an action on the ease against defendant for falsely and fraudulently representing that a certain public house sold by him to plaintiff was doing a business of 300k a month. Plaintiff recovered his damages. In the ensuing Michaelmas term, a new trial was asked for and refused.

In Hutchinson v. Morley, 7 Scott, 341, it was held, that “ a contract for the sale of a public house is avoided by a false representation by the vendor as to the amount of the business attached to the house, though the agreement expressly excludes good ’will.” Fraudulent misrepresentations of particulars in relation to the estate, which the buyer has not equal means of knowing, and where he is induced to forbear inquiries that he otherwise would have made, are not to be viewed in the light of assertion gratis dicta; and therefore, where damage ensues, the party guilty of the fraud will be liable for the injury sustained. Medbury v. Watson, 7 Metc. supra. Kerr, in his work on the law of Frauds and Mistakes, p. 85, says:

“ The difference between a false averment in matter of fact, and a like falsehood in matter of judgment, opinion and estimate, is well illustrated by familiar cases in the books. If the owner of an estate affirm that 'it will let or sell for a given sum, when, in fact, such sum cannot be obtained for it, it is, in its own nature, a matter of judgment and estimate, and so the parties must have considered it. But if an owner falsely affirm that an estate is let for a certain sum, when it is, in fact, let for a smaller sum, or that the profits of a business are more than,in fact, they are, and thereby induces a purchaser to give a higher price for the property, it is fraud, because the matter is within the private knowledge of the owner.”

The distinction between mere expressions of opinion and false affirmations of material facts, is well taken by Justice Breese, in the case of White et al. v. Sutherland, 64 Ill. 187. It was a bill to foreclose a mortgage. The defense was that the land was purchased by appellant on the faith of representations made as to material facts, and relied upon by defendant, etc. The learned justice says: “Appellant’s counsel claim that the misrepresentations complained of were merely expressions of opinion, on which it was the folly of appellant to rely. He should have examined for himself, and authorities are cited in support of this proposition, which we are not disposed to question. But were they mere expressions of opinion? For this is the turning point of the case.

“ Was it the expression of an opinion merely, that twenty dollars per acre was the selling price of similar lands in that locality? The proof is overwhelming that it did not exceed ten dollars per acre. Was it mere opinion that the fence around forty acres was a good fence, sufficient to turn stock? Was it mere opinion there were rails enough to fence another forty acres? Was it mere opinion there was timber enough on the land to fence the entire tract? Ho! these were not expressions of opinion, but deliberate statements of facts. They were false statements, known to be so by the party making them, and made to induce an act which would not have been done in the absence of such statements.”

With equal propriety we may ask in this case: Was it mere opinion that the income from defendant’s business, as a real estate and loan broker, was worth and yielding $3,000 per annum clear of all expenses? The income derived from the business was the controlling fact to induce plaintiff to make the purchase. It was a fact peculiarly within the knowledge of defendant, and when applied to by plaintiff for information, he admits, by his demurrer, that he knowingly and purposly deceived him by false representations, and thereby obtained his money, which he could not otherwise have gotten.

But we are referred by defendant’s counsel to the case of Nœtling v. Wright, 72 Ill. 390, as decisive of this case.

We think that a careful examination of that case will show that this opinion is not in conflict with what is there decided.

That case was an action on the case,, to recover damages for deceit and misrepresentation on the sale of certain real estate and drugs, and the practice and good will of a physician.

The declaration contained six counts, to each of which a demurrer was sustained, and the question presented to the Supreme Court was as to the sufficiency of the declaration.

It was alleged in the first' count, that the defendant made a false representation of the value of his property, practice and good will as a physician; that plaintiff relying on the representations, was induced to purchase the property and practice, and they were worth much less than represented.

In the second count, misrepresentation in the value of the real estate sold as charged. In the third count, a sale of property of the value of $500 and the practice and good will of a physician are alleged to have been sold for $2,500; that the defendant represented his practice as worth from $3,500 to $6,000 per annum; that these representations were relied upon and were false; that the good will and practice were of no value.

The court, in an opinion by the present chief justice, held these counts bad, and said: “ Statements made by a vendor of property, as to its value, or the price he has been offered for it, or the good qualities of" the property, are of daily occurrence in the sale and transfer of real and personal property in all commercial countries, and yet it has never occurred to any respectable law writer that if such statement should prove to be false, an action for deceit could be maintained.”

Statements of this character do not relieve the purchaser from the responsibility of investigation into the true condition or value of tire property. Such statements are only regarded as gratis diota. These counts simply allege that the representations were false, and that the plaintiff relied upon them, and was deceived. This has never been held to be sufficient to support an action. There is nó allegation that the representations were made with fraudulent intent to deceive, or that the party making them knew them-to be false, and for aught that appears he may have made them in the utmost good faith, believing them’to be true at the time.”

It is the well settled doctrine of the Supreme Court of this State, that there must be knowledge of the falsity of the statement, to render it fraudulent. Tone v. Wilson et al. 81 Ill. 529, and cases there cited.

That such was the view of the court, will more fully appear when we consider what is said in reference to the next count.

The fourth count alleges the representations as to the value of the property, practice and good will sold to have been false, and fraudulently made, with the intent to deceive the plaintiff, etc.; that plaintiff relying upon the representations, purchased, etc.

It also avers that defendant agreed to relinquish his practice in the neighborhood as a physician; but that he violated his agreement and resumed practice, etc., and claims damages for the deceit practiced upon him, and for the violation of the contract to refrain from practice.

It was held that two causes of action were blended in the same count, and the demurrer properly sustained to it for that reason.

The real question presented in this record was not presented in the case of Hoetling v. Wright, and therefore not passed upon by the court.

The representation by defendant that his said business as a real estate and loan broker was large" and profitable, and that his income therefrom was worth and yielded $3,000 per annum, admitted by the demurrer to have been falsely and fraudulently made, to deceive the plaintiff, and to have been wholly untrue, was not the mere expression of an opinion about the value of property. It was the false assertion of the existence of a material fact, a fact intangible in its nature, and the truth of which was peculiarly within the knowledge of the defendant, and by it plaintiff was deceived and induced to part with his money.

We think the court below erred in sustaining the demurrer to the first count of plaintiff’s declaration, and for that reason the judgment is reversed and the cause remanded, with leave to plaintiff to amend the second count of his declaration.

Reversed and remanded.


source: Caselaw Access Project

author: Higbee, P. J.

license: Public Domain

text:
    Thomas A. McIntyre et al. v. Trustees of Schools, etc.
    Official bond—Liability of sureties—Deficit occurring prior to execution of bond.—The liability of a surety is not to be extended by implication beyond the terms of his contract. The undertaking of a surety upon the official bond of township treasurer, is that the principal shall pay over to his successor all moneys in his hands as such treasurer during his term of office, but his sureties are not liable for his wrongful acts prior to the execution of the bond.
    Error to the Circuit Court of Greene county; the Hon. A. G. Burr, Judge, presiding.
    Mr. James R. Ward, for plaintiffs in error;
    that the bond cannot be construed to cover past delinquencies, cited Ladd et al. v. Board of Trustees, 80 Ill. 233; Farrar v. United States, 5 Pet. 389; United States v. Boyd, 15 Pet. 209; Trustees, etc. v. Otis et al. Sup. Ct. Ill. 1877, unreported.
    The contract of a surety is to be construed strictly: People v. Tompkins et al. 74 Ill. 482; Governor v. Lagow, 43 Ill. 134.
    It is only for defaults occurring during the term for which the bond was given, that the sureties are liable: Vivian v. Otis et al. 24 Wis. 518; Farrar v. United States, 5 Pet. 389; United States v. Boyd, 15 Pet. 209; Miller et al v. Macoupin Co. 2 Gilm. 50; Rochester v. Randall, 105 Mass. 295; United States v. Eckfords, 1 How. 261; Meyers v. United States, 1 McLean, 493; 2 Barb. Ch. 613.

      Mr. J: W. English, for defendants in error;
    that the treasurer is required by law to keep books of account; and they are public records, and presumed to show correctly the financial account of the treasurer, cited Rev. Stat. 1877, 911, § 56.
    They are equivalent to an official report of the funds in the hands of the treasurer at the beginning of his term of office: Morley v. Town of Metamora, 78 Ill. 394.
    The sureties on his last official bond are chargeable with notice of all the treasurer’s books contain: Pinkstaff et al. v. The People, 59 Ill. 148; Miller et al. v. Macoupin Co. 2 Gilm. 50.
   Higbee, P. J.

This action is against McIntyre and his sureties upon his official bond as treasurer of said school township, to recover money which it is alleged he had in his hands at the expiration of his term- of office, and failed to pay over to his successor on demand made therefor.

The condition of the bond upon which the breach is assigned is in the form required by the statute, and is that if the said McIntyre shall deliver to his successors in office all moneys, books, papers, securities and property in his hands, as such treasurer, then the obligation to be void.

The case was submitted for trial in the court below upon the following agreed facts: That Thomas A. McIntyre had been Treasurer of Township 9, R. 12, from April, 1869, to April 8th, 1878, the date of his removal from office. He was annually re-appointed treasurer of said township, from April, 1873, to April, 1877, and each time gave a new bond with new sureties. The record of the proceeding showing his last appointment is as follows: “April 2nd, 1877, at a regular meeting, notes and bonds in treasurer’s hands examined and found correct, and Thomas A. McIntyre is hereby appointed treasurer for another year, and bond approved. A. F. Herron, Pres’t.” The bond sued on was given in April, 1877, for the succeeding year. McIntyre never made any written report of his receipts and expenditures that was recorded or filed, from his first appointment, in 1869, till his removal, April 8tli, 1877. He had $21.28 township moneys in his hands on the day of his reappointment in 1877. That from thence to April 8th, 1878, his deficit is $383.24. Tie is in default $3,833.53, altogether; moneys received and not accounted for from 1869 to 1878 (April), $3,450.31, of which was unlawfully appropriated and converted by McIntyre to his own use prior to March 30th, 1877. The foregoing statement as to moneys actually received and expended by McIntyre during his last term of affice, and conversion by him prior thereto, being McIntyre’s own showing from his private papers, there being no public record to show these facts, or that they were known to the trustees or McIntyre’s sureties until after his removal from office.

Upon this evidence the court rendered judgment against the defendants for $3,833.53 and costs.

From the agreement of parties it appears that when the bond sued on was given, the principal had in his hand belonging to the school fund $21.28, and that his deficit during the remainder of liis term of office only amounted to $383.24. This presents the question, whether his sureties are liable for the $3,450.31 which it is admitted had been wrongfully converted by the principal to his own use before the commencement of his term of office for which they undertook to be responsible for his official acts.

The liability of a surety is not to be extended by implication beyond the terms of his contract. The undertaking here is that the principal shall pay over to his successor all moneys, etc. in his hands as such treasurer, and his sureties are not liable for past derelictions. Ladd v. Trustees, 80 Ill. 234; Farrar v. U. S. 5 Peters, 389; U. S. v. Boyd, 15 Peters, 209; Vivian v. Otis et al. 24 Wis. 518; 1 American Reports, 199; Rochester v. Randall, 105 Mass. 295; Trustees of Schools v. Wm. M. Smith et al. 88 Ill. 181; McLean v. People, 85 Ill. 205.

The sureties are liable for all moneys received by their principal or in his hands during his term of office, but not for bis wrongful acts before they became responsible for his official conduct by signing his bond. It is obvious from the agreement that the $3,450.31 was never in the hands of McIntyre while acting under this bond; its misappropriation was complete before the bond was executed, and while he was acting under a bond signed by other parties.

This case is clearly distinguishable from the case of Morley v. Town of Metamora, 78 Ill. 396. There a supervisor was elected for a second term, and at the end of the first term made a report, showing a certain amount in his hands belonging to the town, which report was approved, and it was held that such report must he considered as true, and that such amount was in his hands as his own successor, and that the sureties on his bond for the second term were liable for a failure on his part to account for it.

Here no account was rendered by the school treasurer, and it is admitted that when he was appointed in April, 1877, he had in his hands but §21.28, and that he had prior to that time wrongfully appropriated and converted to his own use §3,450.31> and that he has rendered no account of the same.

When an officer is his own successor, and receives money during his first term, in the absence of proof to the contrary, it may well be presumed that he still holds it during his second term, but such a presumption may be rebutted, and in this case is clearly rebutted by the admitted facts in the record.

It being admitted that the money sought to be recovered was not at any time in the hands of the defendant, McIntyre, during his last term of office, we think his sureties on his official bond are not liable for his failure to pay it over to his successor, and therefore reverse the judgment of the court below and remand the cause.

Beversed and remanded.


author: Per Curiam.

text:
    Abraham R. Gregory v. George W. Spencer
    Peactice—Bikl of exceptions—What must appeae in.—The motion for new trial and affidavits upon which it is based, as well as instructions complained of, should be preserved in a bill of exceptions, or this court will not review the action of the court below. The affidavit and instructions copied into the record by the clerk form no part of the record.

      Appeal from the Comity Court of Morgan county; the Hon. E. P. Kirby, Judge presiding.
    Mr. E. M. Sanford, for appellant;
    that the court erred in permitting the case to go to trial without issue being joined or waived, to appellant’s replication; cited Chitty’s Pl. 499; Adams et al. v. Neely, 15 Ill. 380.
    Under defendant’s second plea, which was denied by plaintiff’s replication, the burden of proof was upon the defendant: 1 Archbold’s Nisi Prius, 207.
    Messrs Brown & Russell, for appellee;
    that exceptions to a motion for new trial must be preserved by bill of exceptions, cited Horn v. Eckert, 63 Ill. 522; St. L. A. & T. H. R. R. Co. v. Dorsey, 68 Ill. 326; Hay v. Hayes, 56 Ill. 342; Snell v. Trustees etc. 58 Ill. 290; Gaddy v. McClean, 59 Ill. 182; Thompson v. White, 64 Ill. 314; Drew v. Beall, 62 Ill. 164.
    Being copied by the clerk into the transcript does not make them a part of the record: Drew v. Beall, 62 Ill. 164; Grimes v. Butts, 65 Ill. 347; Saunders v. McCollins, 4 Scam. 419; Corey v. Russel, 3 Gilm. 367; Petty v. Scott, 5 Gilm. 209; Magher v. Howe, 12 Ill. 379; Moss v. Flint, 13 Ill. 570; Smith v. Wilson, 26 Ill. 186; Ballance v. Leonard, 37 Ill. 43; Gill v. People, 42 Ill. 321; Hartford Fire Ins. Co. v. Vanduzor, 49 Ill. 489.
    In the absence of a bill of exceptions showing all the evidence, the court will presume there was sufficient evidence to support the judgment: Wilson v. McDowell, 65 Ill. 522; Brown v. Clement, 68 Ill. 192.
    Going to trial without rejoinder to replication, it will be considered as waived: Granger v. Warrington, 3 Gilm. 299; McCully v. Silverburg, 18 Ill. 306; Stumps v. Kelly, 22 Ill. 140; Hazen v. Pierson et al. 83 Ill. 241; Robinson v. Brown, 82 Ill. 279.
    Where a plea concludes to the country it is merely matter of form to add the similiter, and it is not error to proceed to trial without it: Stumps v. Kelley, 22 Ill. 140; Evans v. St. John, 9 Porter, 186; Swan v. Ray, 2 Blackf. 291; Tomplin v. Kralhn, 3 Inch 373; Hazen v. Pierson et al. 83 Ill. 241.
   Per Curiam.

This was a suit brought to recover upon a promissory note, given by appellee to appellant for $225, in May, 1876.

The cause was pending in the County Court for trial; plea of general issue and plea of payment were filed.

It appears that in the absence of plaintiff in error, the caiise was submitted to a j ury and tried, resulting in a verdict against appellant.

Appellant entered a motion in the court below for new trial; the court overruled the motion and entered judgment against plaintiff for costs. This action of the court, and the giving certain instructions on part of appelleé, are assigned for error.

Upon examination of the record we find no bill of exceptions containing the affidavit on which such motion was based, and no instructions. We cannot, therefore, review the action of the court below. The affidavit and instructions copied into the record by the clerk, are no part of the record; they should have been preserved in a bill of exceptions. Horn v. Eckert, 63 Ill. 522.

We therefore affirm the judgment of the court below.

Affirmed.


author: Allen, J.

text:
    Edward Rutz v. The Esler and Ropiequet Mf’g Co.
    1. Incorporation—Estoppel.—A subscriber to the capital stock of an incorporated company, when he participates in its organization and acts as a director, is estopped from showing that the company failed to comply with the law in its organization.
    2. Subscription to stock—Fraudulent representations.—Where a corporation sends out agents to procure subscriptions to its stock, and such subscriptions are obtained by fraudulent representations, the fraud may he setup in bar of a recovery on a suit for such subscriptions; but where subscriptions are procured by commissioners prior to the organization of the company, their fraudulent representations made to induce subscriptions, constitute no defense to a suit by the company for such subscriptions. They are not the agents of the company.
    3. Release oe subscription to certain stockholders,—A release of all or a portion of the amount subscribed by some of the subscribers, releases all the subscribers who do not assent to that release, or in some way give their sanction to it. Such release destroys the equality that exists between subscribers according to their subscriptions, which is the very essence of the contract.
    Appeal from the Circuit Court of St. Clair county; the Hon. Wm. H. Snyder, Judge, presiding.

      Mr.'B. A. Halbert, Mr. F. A. McCohaugiiy and Messrs. Wildermah & Hamill, for appellant;
    that it was error to give verdict and judgment for an amount greater than that claimed in the declaration, cited Stephens v. Sweeney, 2 Gilm. 375; Brown v. Smith, 24 Ill. 198; Walcott v. Holcomb, 24 Ill. 331; Riues v. Kumler, 27 Ill. 291; Altes v. Hinckler, 36 Ill. 266.
    . The capital stock not having been fully subscribed, no legal organization could be effected, and the call was made by persons unauthorized to make it: Rev. Stat. 1874, 286; G. G. N. Q. M. C. v. McLister, 15 Eng. Rep. (Moak) 1; Bigelow v. Gregory et al. 73 Ill. 197.
    Appellant’s subscription was induced by fraud, and this c'an be setup as a defense; Bwlch-Plwm Lead Co. v. Baynes, 2 Law Rep. 324; McCreight v. Stevens, 1 H. & C. 454; Glamorganshire Co. v. Irvine, 4 F. & F. 947; Henderson v. Railway Co. 17 Tex. 560; Peek v. Gurney, 1 Eng. Rep. (Moak) 567; Upton v. Triblecock, 1 Otto, 53; Miller v. Barber, 66 N. Y. 558; Burrows v. Smith, 6 Seld. 550; Neil v. Cummings, 75 Ill. 170; Blalock v. Randall, 76 Ill. 224; Thomas v. Coultas et ux. 76 Ill. 493; Angell & Ames on Corporations, § 531; 1 Redfield on Railways, 159; Brice on Ultra Vires, 152; Allen v. Hart, 72 Ill. 104; Case v. Ayers, 65 Ill. 142; Wiliams v. Franklin, etc., Asso. 26 Ind. 315; Brookville Lumber Co. v. McCarty, 8 Ind. 392; Hubbard v. Chappel, 14 Ind. 601; Evert v. C. & A. Lumber Co. 19 Ind. 242.
    A release of certain of the subscribers from a portion of their subscription, releases all: County of Crawford v. Pittsburg R. R. Co. 32 Pa. St. 141; New York Ex. Co. v. DeWolf, 31 N. Y. 282; Angell & Ames on Corporations, §531; McConaty v. Cent. Lum. Co. 1 Penn. 426.
    Mr. C. W. Thomas, for appellee;
    that the remittitur by appellee cured the objection that verdict and judgment were greater than claimed in the declaration, cited Bev. Stat., chap. 110, §82.
    The appellant is estopped to deny the legal organization of the corporation: Herman on Estoppel, § 569; Wight v. Shelby R. R. Co. 16 B. Mon. 7; Central Plank Road Co. v. Clemens, 16 Mo. 359; Stone v. Great Western Oil Co. 41 Ill. 85; Kansas City Hotel Co. v. Harris, 51 Mo. 464; Lane v. Brainerd, 30 Conn. 577; Crump v. U. S. Mining Co. 7 Gratt. 352; Southern. P. R. R. Co. v. Hixon, 5 Ind. 166; Northern Mo. R. R. Co. v. Winkler, 33 Mo. 354; Smith v. Heidecker, 39 Mo. 157.
    The fact that the directors who make the call are not legally elected is no defense to this action: Eakright v. Logansport R. R. Co. 13 Ind. 404; O. & M. R. R. Co. v. McPherson, 35 Mo. 13; Johnson v. Crawfordsville, etc. R. R. Co. 11 Ind. 280.
    A corporation has power to enforce a contract for subscrip • tion, though it might not maintain its corporate existence if attacked in a direct proceeding: Buffalo & Albany R. R. Co. v. Cary, 26 N. Y. 75; Swartout v. M. C. R. R. Co. 24 Mich. 389.
    No representations made by the commissioners as to what the proposed company would do, would be binding upon the company after it was organized: Cabey v. R. R. Co. Sup. Ct. Penn. 1876; Wharton on Contracts, § 1068.
   Allen, J.

To the April term of the St. Clair Circuit Court suit was brought by appellee against appellant for the recovery of $2,250, on a call of subscription to capital stock to appellee by appellant.

The declaration alleges that appellee is a body corporate. That appellant, on the 6th day of February, 1875, became a subscriber for thirty shares of the capital stock of appellee; that the shares were $100 each, to be paid in.such installments as the directors of appellee might call for; and that on the 1st of September, 1875, appellee, by its directors, pursuant to its bylaws and the statute laws of the State, made a call upon appellant to pay $75 on each of his thirty shares, by which call appellant became liable to pay $2,250; damages claimed, $2,500.

It was stipulated between the parties that all legal defenses to the action might be proved on the trial under the general issue that might be proved under a special plea. A jury trial was had and verdict returned for appellee, fixing his damages at $2,587.50. Appellant moved for a new trial. Motion overruled and judgment by court for $2,587.50 and cost of suit. Appeal prayed and allowed to this Court.

Several errors are assigned, among which are:

1. Befusal of the court to give third instruction asked for by appellant.

2. In refusing to grant a new trial.

3. In rendering judgment for amount of damages found by jury.

The first point made by appellant is the refusal of the court to give the following instruction:

“ If the jury find, from the evidence, that at the time the commissioners to open books for subscription to the capital stock of the proposed Esler and Bopiequet Manufacturing Com-' pany gave notice of a meeting of the subscribers for the purpose of electing directors or managers of said proposed corporation, the said capital stock had not been fully subscribed, and said commissioners knew that it had not been so subscribed, and that said capital stock was not fully subscribed at the time appointed for said meeting, and that at said meeting, one of said commissioners then subscribed eleven shares, of one hundred dollars each, to complete the full amount of the authorized subscription ; and that the directors who made the call sued on in this case, were elected at said meeting; and that said commissioners, in their report to the Secretary of State of their proceedings, made it appear that said notice was given after said stock was fully subscribed, and thereby procured said Secretary of State to issue a license or.certificate of the complete organization of said corporation, then the directors so elected would not be authorized to make calls for the payment of subscriptions to such capital stock; then such subscribers should afterward knowingly carry on business in the name of such proposed corporation would be liable as partners to all persons to whom such proposed corporation might become indebted in business; and if such subscription of eleven shares was made as aforesaid, ' without the knowledge or consent of the defendant in this case, then it was fraudulent as to him, and he cannot be compelled to pay calls upon his subscription to such stock, unless the jury further believe, from the evidence, that the defendant, after a full knowledge of all the facts, has ratified, the aforesaid acts.”

It is shown, by the evidence, that when the stockholders’ meeting was called, and up to the time of that meeting, the amount of necessary capital stock had not been subscribed; that just before the meeting organized, Ropiequet, one of the commissioners, made a subscription of $1,100 in the name of Jacob J. Esler, which made the amount required. The evidence tends to show that appellant had no knowledge of the deficit in the amount, or that it had thus been made complete.

It is insisted by appellant that inasmuch as the full amount of subscription to capital stock had not been made before the stockholders’ meeting was called, that under the law authorizing the corporation to be formed, Rev. Stat. Ch. 32, 286, no organization could then be had, and that a directory elected under an organization had at that" meeting could not legally make a call on subscribers to the capital stock.

But the evidence shows that appellant was present and took part in the organization of the company at that meeting; that he was appointed a director and accepted the appointment, and acted as such for a time at least, and our opinion is that he is estopped from setting up such an irregularity in its organization.

The case referred to by appellant, Bigelow v. Gregory et al. 73 Ill. 197, is, we think, not in point. In that case the question was as to the liability of the members of the association as partners for a debt contracted by them before they had become organized under the laws of the State, and the court held that inasmuch as they had not complied with the law so as to become a corporation at the time they incurred the debt for which they were sued, they were liable as individuals for that debt, and that they could not shield themselves from their personal liability by showing that they had afterward become incorporated. See Angell & Ames on Corporations, 636; Kansas City Hotel v. Harris, 51 Wis. 464; Danbury & Norwalk R. R. Co. v. Wilson, 22 Conn. 435; Law v. Brainard, 30 Conn. 577; Smith v. Hardecker, 39 Mo.

And in Stone v. G. W. Oil Co., 41 Ill. 85, the court holds that the subscriber is estopped when he participates in the organization and acts as director. We therefore hold'that the court.properly refused that instruction.

Another point urged by appellant is that he was induced to make the subscription through the false and fraudulent representations of Eopiequet and Esler, who were appointed commissioners to solicit subscriptions to the capital stock prior to its organization. While there has been much controversy in the courts of this country over this question of fraudulent misrepresentations by commissioners in the procurement of stock subscriptions, we think the doctrine is pretty well settled that \this defense is not available. In Smith v. Hardecker, 39 Mo. 157, a case in its leading features almost identical with this case, and in Cully v. R. R. Co., a recent decision of the Supreme Court of Pennsylvania, and referred to with approval by Wharton on Contracts in note td Sec. 1068, the courts say: “ These commissioners are not agents of the corporation, for it is not yet in being;” and a subscriber to the capital stock cannot set up fraudulent representations by such commissioners as a release of his obligation to pay his subscription. A different rule rightly obtains -where a corporation sends out its agents to procure subscriptions, and subscriptions are obtained by fraudulent representations. In such case it is held that the fraud may be set up in bar of a recovery; but this is upon the ground that the corporation is responsible for the act of its agents, and most of the American authorities referred to by appellant in support of his theory are upon subscriptions obtained by the agents of the corporations .after they are organized.

Another question is raised by appellant, which, if his view is correct, must prevent a recovery.

The records of appellee, introduced in evidence, show that at a meeting of the board of directors held on the 10 th of March, 1877 (after appellant had resigned his directorship and demanded a cancellation of his subscription), a resolution was passed authorizing an arrangement with certain subscribers to the capital stock, by which, upon giving their individual notes for one-half of their subscriptions they were to be released from the payment of the other half, and that this arrangemént was made with quite a number of the original stock subscribers, and their notes taken and accepted for a moiety of their subscriptions in full satisfaction.

Did this act of the board release appellant from his obligation to-pay his subscription?

The courts of this country, with but few exceptions, have held that a release of a portion of the subscribers to the capital stock releases all the subscribers who do not assent to that release, or in some way give their sanction to it. Pittsburgh & Connellsville R. R. Co. v. Graham, 8 Casey; P. & C. R. R. Co. v. McCally, Ib.; P. & C. R. R. Co. v. Graham, 2 Grant, 259; Stewart v. Trustees Hamilton College, 2 Denio, 403: Crawford County v. Pittsburgh & Erie R. R., 32 Penn. 141, and N. Y. Exchange Co. v. De Wolf, 31 N. Y. 273, all hold this doctrine.

In some of these cases the release had been effected before the bona fide subscriptions were obtained, in others-after it had been obtained, as in this case. It destroyed that equality that exists between subscribers, according to the terms of their subscriptions, which is the very essence of the contract; and in Angelí & Ames on Corporations, in discussing what will and what will not release a subscriber to capital stock from his liability, the author says: “If a stock company lets off a part of its subscribers and returns their money, the other subscribers, not assenting thereto, are discharged from liability growing out of their original subscriptions.” Angelí & Ames on Corporations, § 531.

Unless there was some proof that appellee had assented to this release of subscribers, or some fact appearing from which his assent could be implied, upon the authorities above cited he is released from his liability on his original subscription. And, as under the agreement that every defense that could be legally made might be made under the general issue, we hold that upon that issue the verdict should have been for appellant, and that it was error to refuse the motion for new trial, and to render judgment on the verdict of the jury against appellant.

The ad da/innum in the declaration is $2,500. The jury returned a verdict, and the court entered judgment for $2,587.50. This was also an error, but appellee filed a remittitw in this court for $87.50, which cured that error so far as the ad damnum, laid in declaration is concerned, but we are unable to say whether the assessments and interest amount to that sum or not, as the record wholly fails to show when the call for $75 on the shares was made. The only evidence that a call was ever made that we find in the record is the statement of the secretary of the board, in his oral testimony, that he had notified appellant of the call and requested payment. But since this ease must be reversed on the other ground above stated, we regard this question as not requiring further notice.

This cause is reversed and remanded.

¡Reversed and remanded.


text:
    City of East St. Louis v. Margaretha Klug.
    1. Cities—Liability for acts of servants—What must be shown, —A person claiming damages of a city in consequence of an injury received by reason of the negligence or carelessness of a servant or agent of the city in performing an official duty, in order to a recovery, must show that the person doing the act was the agent or servant of the city in respect to the act done, and that by unskillfulness,^negligence or carelessness on his part, the plaintiff received the injury complained of.
    2. Verdict against evidence—Rule.—While courts are reluctant to set aside the verdict of a jury whose province it is to pass upon questions of fact, and will not do so where there is conflicting testimony that has to be weighed, though the court may believe the preponderance of evidence against the verdict; yet it is the duty of a court to interpose and set aside a verdict when that verdict is not supported by evidence.
    Appeal from the Circuit Court of St. Clair county; the Hon. Wm. H. Snyder, Judge, presiding.
    Hr. ¡R. A. Halbert and Hr. J. H. Freels, for appellant;
    that before the tree in question could have been cut by the city it must have been declared a nuisance by ordinance, cited Chicago v. Laflin, 49 Ill. 172.
    Declaring it to be a nuisance does not make it so: Ewbanks v. Ashley, 36 Ill. 177; Yates v. Milwaukee, 10 Wall. 497; Dillon on Mun. Corp. § 308.
    There must be a trial and judgment by a proper tribunal before the city can take the property of a citizen: Bullock v. Goemble, 45 Ill. 218; Willis v. Legris, 45 Ill. 289.
    A municipal corporation is not liable for the unauthorized acts of its officers: Trustees v. Schroeder, 58 Ill. 353; Wood on Master and Servant, § 466.
    The relation of master and servant must appear: Hale v. Johnson, 80 Ill. 185.
    Mr. W. Wieklemait, for appellee;
    that the act done was a lawful exercise of corporate power, and the city is liable therefor, cited Thayer v. Boston, 19 Pick. 515; Chicago v. Turner, 80 Ill. 419; Rose v. City of Madison, 1 Ind. 281.
    The tree was a public nuisance: 1 Hilliard on Torts, 661; Grove v. Fort Wayne, 45 Ind. 429; Drake v. Lowell, 13 Met. 292; Day v. Milford, 5 Allen 98; Milford v. Holbrook, 9 Allen 17; Morse v. Richmond, 41 Vt. 435; Baker v. Boston, 12 Pick. 192; Manhattan Fertilizing Co. v. Van Keuser, 8 Kan.
    A public nuisance may be abated without trial, notice to the owner, or compensation: Richardson v. Emerson, 3 Wis. 319; Wetmore v. Tracy, 14 Wend. 255; Renwick v. Morris, 7 Hill, 575; Parker v. Mayor etc. of Macon, 39 Ga. 725.
    Generally, upon the question of liability: Vanderbilt v. Adams, 7. Cow. 351; 3 Sneed, 20.
   Allen, J.

This was an action of trespass brought by appellee against appellant for an injury to her person.'

The declaration charges that the agents and servants of appellant, in July, 1876, in cutting and falling a cottonwood tree that stood on an alley within the city limits, so unskillfully, negligently and carelessly cut the same, that it fell upon the house in which appellee lived and was then staying, and demolished the house and greatly injured the appellee in her person, and laid her damages at $5,000. Appellant filed a plea of “ not guilty.”

At the September term, 1877, the cause was submitted to a jury, and a verdict returned for appellee for $1,000 damages. Appellant moved for a new trial. Motion for a new trial overruled by the court. Judgment for appellee for $1,000 and costs of suit. Appeal prayed and allowed to this court.

The evidence tends to show that one Carroll, with the aid of some others, on the 15th of July, 1876, cut a large cottonwood tree that stood near an alley in the city of East St. Louis, and that it fell upon the house of appellee, while she was in the house, broke the house down and severely injured appellee. That it was unskillfully cut, and that no notice was given of danger by Carroll.

To hold the appellant liable in this suit two things must appear from the evidence.

1. That Carroll was the servant or agent of the city, in cutting the tree.

2. That by unskillfulness, negligence or carelessness on his part appellee received her injury.

W e think the evidence of his unskillfulness and negligence is sufficiently shown; but was he at the time doing this work as the agent or servant of appellant?

The testimony shows that Carroll sometimes did odd jobs for appellant. That he occasionally took contracts for repairs on streets and sidewalks, but that he had never been in the. regular employ of appellant. That he often sought for jobs from aj>pellant. That on the day before this accident occurred, he had cut a tree in another part of the city, but by whose authority is not shown by the evidence.

That on the day before this tree was cut, Carroll, the mayor (Hake) and the city engineer were seen at this tree examining it, and one Burk testifies that while Carroll was cutting the tree on the day it fell, that Mayor Hake and others were present, betting on the size of the tree and the direction it would fall. One Gibbon testifies that he heard Hake tell Carroll on the day before the tree was cut that there was another tree to cut on St. Louis avenue.

This is the substance of the testimony bearing on the point of Carroll’s agency or employment by appellant, touching the cutting of this tree. Appellant introduced Hake, who testified that he was mayor at the time. Was informed by some one the day before tree was cut that people in its vicinity wanted it cut. That he and the city engineer went to look at the tree; that Carroll was along. Examined the tree. Said in Carroll’s presence would not have tree cut “ right then.” Told engineer to make up his estimates for work on streets and alleys and lay before the council; that council would meet next day. Hever saw Carroll from that time till after tree was cut; never employed him to cut tree; never said anything to Carroll about cutting tree; had no authority to employ him to do such work, and don’t know of his employment by any one else to cut that tree. City paid Carroll for cutting elm tree before that time, but was not employed by him to do so, or by any one else to his knowledge. Suppose he cut it and took his chances for getting his pay from city. Was not at tree the day it was cut, or near to it. “ He ver offered to bet cigars or anything else about its size or way it would fall; ” testimony of Burk on that subject absolutely false. Did not tell Carroll day before that there was another tree to cut.

Fraud, assistant engineer, was at mayor’s most of the forenoon on day tree was cut. Hake was there; was at office all the afternoon till after heard tree fall, and Mayor Hake was in the office. Don’t think Mayor Hake could have been at tree the day it was cut without his knowing it. Ho order for cutting this tree was made by council. Mrs. Cunningham says, saw mayor and engineer at tree day before it was cut. Carroll was near them. Witness asked Hake if he was going to have tree cut. Hake answered: “Ho, ma’am; I will see about it.” Carroll was near by; could have heard what was said. Saw Carroll and others cutting tree next day. Did not see Hake there.

Does this evidence support the verdict? Does it sufficiently show that Carroll was the agent or servant of the city, acting under the direction of appellant in cutting this tree as to support this verdict? We fail to find any such relation as agent or servant from the evidence, and unless such relation between appellant and Carroll did exist in the cutting of the tree, appellant would not be liable for the injury.

While courts are reluctant to set aside the verdict of a jury whose province it is to pass upon questions of fact, and will not do so where there is conflicting testimony that has to he weighed, though the court may believe the preponderance of evidence against the verdict; yet it is the duty of the court to interpose and set aside a verdict when that verdict is not supported by evidence. Ehrich v. White, 74 Ill. 481; Reynolds v. Lambert, 69 Ill. 495; T. W. & W. R. Co. v. Moore, 77 Ill. 217.

Believing that the evidence in this case, as it appears of record, brings it clearly within the rule laid down in the cases above cited, and that the Circuit Court erred in refusing the motion for a new trial by appellant, the cause is reversed and remanded.

Reversed and remanded.


author: Baker, J.

text:
    Valinda B. Dugger et al. v. Daniel Oglesby.
    1. Evidence—Cebtified copy of kecoed.—Our statute expressly provides that, upon the trial of any cause, any party may, by first complying with the provisions of the statute, read in evidence the record of any deed or a transcript of the record thereof, certified by the proper recorder, with like effect as though the original of such deed was produced and read in evidence.
    2. Res adjudicata—Ousteb—Notice to gbantob.—A judicial determination to which the heirs were not parties, and of which the grantees of their ancestor gave them no notice, does not as to them, establish the fact of a divestiture of title. Where a grantee is ousted under a legal proceeding to which his grantor is not a party, he must give due notice of such proceeding to his grantor, or else, in any subsequent suit against his grantor on the covenants of his deed, he has to show the validity of the title of him by whom he was ousted. v
    3. Covenants of wabbanty—Suit on—What should be shown— Exception to bule.—Under the covenant of general warranty, the covenantee, in order to recover, must show either that he is unable to obtain possession under the title derived from the grantor by reason of a paramount title by which the land is held adversely, or that he has been evicted by a paramount title outstanding at the time of the execution of the deed. This rule is however subject to exception in a case where the covenantor by his prior or subsequent acts, defeats the title that he has covenanted to warrant and defend.
    4. Ouster by mortgagee.—In this State, on the principle that the mortgagee is the owner of the fee, he can maintain ejectment, butwhere he resorts to a court of equity to foreclose and sell, the purchaser under the decree, without a deed, cannot assert a hostile title to which the plaintiff could rightfully succumb. The plaintiff’s title must be defeated by a paramount legal title, under which he could oust the plaintiff. The foreclosure sale, deed and eviction should all he shown in an action against the grantor on his covenants.
    5. Covenant for quiet enjoyment—"Warranty—Special breach —Proof—Variance.—In the case of covenants for quiet enjoyment and general warranty, the assignment of a breach must he special, otherwise the covenantee might recover for an eviction occasioned by his own acts. The special breach averred must be the breach proven, otherwise there will he a variance, and in the case of an exception, the plaintiff both by his pleading and proof must bring himself within the exception.
    6. Suit against heir—Proof of assets.—The evidence in this case is wholly insufficient to support the findings of the court, because it nowhere shows that property, either real or personal, to any certain value had ever descended or been distributed to the heirs.
    7. Action at law against heir.—The statute expressly gives the right to maintain against the heir or devisee the same actions which lie against executors or administrators, and to maintain joint actions.
    8. Parties—Joining administrator—Widow.—The administrator was necessarily made a party defendant. The assets in his hands are primarily liable for the debts of the deceased, and under the statute suit against the heir without joining the administrator can he had only in two cases—where there is no administration within a year, and where a judgment has already been obtained against the administrator, and there are no personal assets. The widow was properly made a party defendant, she being an heir, at least to the extent of one-third of the personal estate.
    9. Practice—Form of judgment.—The judgment, being personal against the widow and children, and against the administrator of assets guando accidermt, was erroneous. It should have been in solido against the administrator, widow and heirs. The order as to the administrator should have been quando acciderint, and the widow and heirs should have been subjected to no greater liability than the value of the estate that descended to them, exclusive of the widow’s award, and the court should have ascertained this value.
    Appeal from the Circuit Court of Madison county; the Hon. Wm. H. Snyder, Judge, presiding.
    Messrs. Gillespie & Happy, for appellants;
    contending that if a purchaser fails to protect himself against incumbrances by requiring a covenant, it is his own fault, cited Jackson v. Ewing, 17 Ind. 505.
    That the claim of Pearce was not a title, nor even an incumbrance: Dobbins v. Brown, 2 Jones, 75; Rawle on Covenants, 232; Ellis v. Welch, 6 Mass. 249; Barley v. Miltenberger, 31 Penn. 37.
    Where the covenantor himself does an act asserting title, it constitutes a breach of the covenant for quiet enjoyment: Beebe v. Swartwout, 3 Gilm. 163; Bostwick v. Williams, 36 Ill. 65; Sedgewick v. Hollenbrook, 7 Johns. 380; Brady v. Spurck, 27 Ill. 478; Moore v. Vail, 17 Ill. 185; Claycomb v. Munger, 51 Ill. 373.
    Under covenants for quiet enjoyment and general warranty the assignment of breaches must be special by showing an older title: Marston v. Hobbs, 2 Mass. 437; Owen v. Thomas, 33 Ill. 320; Rawle on Covenants for Title, 200; Jones v. Warner, 81 Ill. 343.
    The action for breach of covenant of warranty should be brought by him who owned the land when the breach took place: 2 Washburn on Beal Property, 713.
    The judgment should have been joint against all to the extent of assets descended: Vanmeter v. Love, 33 Ill. 260.
    Because appellee might have had the special pleas or the special matter contained in' the notice, stricken from the files, but did not do so, is no reason why evidence offered under such pleas or notice should be excluded: Gilmore v. Nowland, 26 Ill. 200; Burgwin v. Babcock, 11 Ill. 28; Hunt v. Weir, 29 Ill. 83.
    A party is not estopped to show that no consideration in fact was paid for a deed: Kimball v. Walker, 30 Ill. 482.
    Messrs. Metcalf & Beadshaw, for appellee;
    that Dugger was not an innocent purchaser for value of the property, cited Renfro et al. v. Pearce, 68 Ill. 126.
    The heir is liable for the debt of his ancestor, to the extent of the ¡property received from him: Ryan v. Jones, 15 Ill. 1.
    An actual eviction is not necessary, but the covenantor or his assigns may yield -to a paramount title: McConnell v. Downs, 48 Ill. 271; Harding v. Larkin et al. 41 Ill. 413; Claycomb v. Hunger, 51 Ill. 373.
    A certified copy of the record of the deed was admissible in evidence: Bev. Stat. 720; 1 Chi tty’s PI. 374; Rogers v. Miller, 4 Scam. 333; Palmer v. Logan, 3 Scam. 56.
    Notice of special matter and special pleas cannot both be filed with the general issue: Gilmore v. Nowland, 26 Ill. 200.
    To recover on a covenant for quiet enjoyment, it is not necessary to aver an outstanding title; it is only .necessary to show an eviction: Beebe v. Swartwout, 3 Gilm. 163; Furness v. Williams, 11 Ill. 229; Ohling v. Luitjens, 32 Ill. 23; Brady v. Spurck, 27 Ill. 478; 2 Johns. 395; 7 Johns. 258; 11 Johns. 122;
    There is a difference between an eviction under covenant for quiet enjoyment, and one under that of warranty: Fowler v. Poling, 6 Barb. 165; 2 Washburn on Real Property, 665; 5 Kent. 571; 5 Johns. 121.
    Appellee is estopped from disputing facts that have been judicially settled by the foreclosure decree, sale and deed: Sisk v. Woodruff, 15 Ill. 15; 27 Ill. 478; 33 Ill. 320.
    As to proper parties plaintiff: 2 Washburn on Real Property, 662; 68 Ill. 125; Ryan v. Jones, 15 Ill. 1; Vanmeter’s Heirs v. Love’s Heirs, 33 Ill. 260.
   Baker, J.

Oglesby impleaded appellants in covenant. The declaration alleged that Edward C. Dugger, now deceased, with Valinda B. Dugger, his wife, on the 29th day of July, 1867, in consideration of $4,000, conveyed certain described lots in the town of Ashley, in Washington county, Illinois, to William Vance, and his heirs and assigns forever, and that said Dugger and wife, by the same deed covenanted to.and with said Vance, liis heirs and assigns, and for themselves, their heirs, executors and administrators, as set forth in said declaration. The declaration further averred that on the 16th of August, 1867, said Vance and his wife" conveyed said lots to John Criley, and that said Criley and his wife, on the first day of January, 1869, in consideration of the sum of $3,500, conveyed said premises to the plaintiff. The breach assigned in said declaration is hereinafter specially referred to. The declaration further averred that on the 2Sd day of August, 1869, the said Edward C. Dugger departed this life, intestate, leaving as his heirs Valinda B., his widow, and Alfred P., John W., Millard, Ellen, Edward, Julia and Augustus Dugger, his children. Alfred J. Parkinson was appointed administrator of his estate. That there was real estate and personal property inherited from, and distributed to the said widow and heirs, from the said Edward 0. Dugger, deceased, before the commencement of the suit, in the sum of twenty thousand dollars, and that Parkinson was the guardian of said minor children, Millard, Edward, Julia and Augustus. Plaintiff further averred a demand and refusal before suit, and the ad damnum was $5,000.

To this declaration the defendants below filed three pleas:

1. Non est factyam.

2. Nul tiel record.

3. Performance; with which pleas a notice was filed:

1. That the title was in Dugger when he made the deed.

2. That when the order of the Circuit Court of Washington county was made, Dugger was dead and his heirs were not made parties, and that they did not have notice.

3. That there was no consideration paid by plaintiff to Oriley.

4. That defendants have not inherited any property from Dugger.

5. That no demand was made as averred.

6. That Pearce had no title when the deed was made by Dugger.

Issues were formed upon these pleas, and no motion was interposed to strike out either the special pleas or the notice of special matter. Without objection the parties tried the cause upon the pleas and notice, and it is therefore unavailing for the appellee to now complain in his argument, even if cross-errors had been assigned. Hunt v. Weir, 29 Ill. 83.

By agreement the cause was tried in the Madison Circuit Court, by the judge, without a jury, and the following judgment was entered: And now on this day, the court being fully advised, it is considered that the issues be found for the plaintiff, and that said defendants (except the said administrator) are heirs of said Edward C. Dugger. That said Dugger left about $5,000 worth of personal property, and $10,000 worth of real estate, which said heirs received according to the statute of descents and distributions, and that said administrator had accounted for and paid over all said money to said heirs before the institution of this suit. It is therefore considered and ordered by the court that the plaintiff have judgment in his favor and against the defendants, except said administrator, for the sum of $3,500, with legal interest thereon from the date of his eviction, October 28th, 1874, or $4,114.83. It is therefore ordered by the court that the said plaintiff have and recover of the said defendants (except said administrator) the said sum of $4,114.83, being the amount of the damages, together with his costs .and charges herein expended, and that he have execution therefor against said defendants, and as to said administrator, that the judgment be of assets, qucmdo accideri/nt.” Exceptions were taken, and the case is brought to this court by appeal.

On the trial of this cause, appellee introduced in evidence a power of attorney from Edward C. Dugger and wife to Gr. Wright, which authorized him to bargain, sell, grant, convey and confirm, the lots in question with covenants of warranty.

He also introduced in evidence a certified copy of a deed for said lots, from said Dugger and wife, to William Yance, he first orally, in court, under oath, laying the foundation required by statute, for the introduction of a certified copy. Said deed is signed as follows:

Edward O. Dugger, [seal.]
By Gr. Wright, his attorney in fact.
Harriet Y. B. Dugger, [seal.]
By Q-. W right, her attorney in fact.
And the acknowledgment is as follows:
State of Illinois, ) Washington County. )

I, Gr. T. Hakes, notary public in the town of Richview, in the county and State aforesaid, do hereby certify that Edward C. Dugger, and Harriet Y. B. Dugger, who are personally known to me as the same persons whose names are' subscribed to the annexed deed, appeared before me this day in person, and acknowledged that they signed, sealed and delivered the said instrument of writing as their free and voluntary act, for the uses and purposes therein set forth. And the said Harriet V. B. Dugger, wife of the said Edward C. Dugger, acknowledged that she had freely and voluntarily executed the same, and relinquished her dower to the lands and tenements therein mentioned, and also her rights and advantages under and by virtue of all the laws of the State, relating to the exemption of homesteads, without compulsion of her said husband, and that she does not wish to retract the same.

Given under my hand and official seal this twenty-ninth day of July, A. D. 1867.

[seal.] Geo. T. Hakes, Notary Public.

The consideration expressed in said deed is $4,000; and it is upon the covenants contained in this deed that the present suit is brought.

He also introduced in evidence a deed for said lots from William Vance to John Criley, and a deed from John Criley to himself. Both of 'these latter deeds were for the premises in question, and the deed from Criley is dated January 1,1867, and the .consideration expressed therein is $3,500. Full covenants of warranty, etc., are contained in all of these deeds.

The appellee also introduced in evidence a transcript of the proceedings of the Washington County Circuit Court, in the matter of a certain bill in Chancery, wherein one Edwin Pearce was complainant, and William Renfro, Elizabeth Renfro and said Edward C. Dugger, were defendants; and also a transcript of the proceedings of said Washington Circuit Court in the matter of a petition of said Pearce, for a writ of assistance, and in connection therewith two decisions of the Supreme Court of the State reported in 68 Illinois Reports, on pages 125 and 220, one of said decisions having been rendered in the said Chancery case, and the other in the matter of the said application for a writ of assistance.

This evidence taken together shows about this state of facts. That said Pearce and said Wm. P. Renfro were merchandising as partners from 1864 until December 1866; that the partnership was then dissolved and that .Renfro was constituted trustee of the goods of the firm for the purpose of converting them into money hy sale at retail, and paying the debts of the firm; that Renfro exchanged the goods for the- lots in question, and had the deed made to his wife, Elizabeth, and that Elizabeth conveyed to her brother, Edward C. Dugger, and that he, Dugger, knew how the lots had been acquired by Renfro. Upon the bill filed by Pearce, it was held that equity would follow the property thus acquired, and subject it to the payment of the firm debts. The bill was filed March 4th, 1867, and all three of the defendants answered the bill. On the 29th day of July, 1867, and pending the litigation, Dugger and wife executed the deed, upon the covenants of which this suit is predicated.

Under the decree in this chancery suit, the lots were sold by the Master in Chancery on the 20th day of June, 1868, to Pearce for §2,000. They were sold subject to redemption, and a certificate of purchase was executed. The decree made no order on the defendants to surrender possession on the execution of a deed. In 1871, the original petition for a writ of assistance was filed by Pearce, and various orders were subsequently made in said proceedings, and in 1874, upon remand from the Supreme Court, the petition was amended, and on the 27th day of October of that year a final order was made and a writ of possession awarded. Edward C. Dugger died intestate on the 23d day of August, 1869, and his heirs were not made parties to these proceedings for the possession of the premises, nor was any notice of said proceedings given to them, either by Pearce or by Oglesby. The appellee was evicted from the premises October 28th, 1874.

It was admitted on the trial below that the appellants, except Parkinson, were the widow and heirs at law of said Edward C. Dugger, deceased; that said Dugger left about §5,000 in personal property and §10,000 Worth of real estate; that after the payment of debts, said administrator had paid over and settled with said widow and heirs the balance of the estate before the institution of this suit. There was evidence on some collateral points that it is unnecessary to refer to.

Appellants introduced in evidence the.deposition of Criley and a letter written by appellee to Criley, for the purpose of impeaching the consideration of $3,500 expressed in the deed from Criley to appellee.

Appellee then introduced William Vance in rebuttal, who testified that Criley was his son-in-law, and not having paid him, Vance, the consideration for the property, an arrangement was made between him, Oglesby and Criley, whereby the purchase money of $3,500, was paid to him, Vance.

Kumerous errors are assigned upon this record, and the more important of them we will proceed to notice.

The first points that we will note are the objections made to the introduction in evidence of the certified copy of the deed to Vance. The first objection made to its introduction is that it is the foundation of the suit, and that therefore a certified copy of it cannot be used in evidence, and that the suit should have been brought upon the deed as a lost instrument. This objection might have been good at common law, but our statute expressly provides, that upon the trial of any cause in law or equity, any party to said cause may, by first complying with the provisions of the statute, read in evidence in any court in this State, the record of any deed or a transcript of the record thereof, certified by the proper recorder1, with like effect as though the original of such deed was produced and read in evidence: Rev. Stat. 1871, 279, § 36.

As to the second objection urged to its introduction, we would say that the certificate of acknowledgment is unusually full and formal; contains all of the statutory requirements, and conclusively shows that the grantors in the deed appeared in person before the officer and made the requisite acknowledgment. Kerr v. Russell, 69 Ill. 666; Monroe v. Poorman, 62 Ill. 523.

It may be unusual for persons who have given a power of attorney authorizing the making of a deed, to appear themselves in person before the proper officer, after the deed has been properly executed by their attorney in their names, and themselves acknowledge the execution of it; at the same time it is not impossible, or even improbable, that such a thing should he done. We are of opinion that the court properly overruled the objections made to the introduction of this deed in evidence.

Among the questions raised by this record is this: We have already seen, that while Dugger was a party to the original chancery suit of Pearce, yet, neither he nor his heirs were party to the subsequent proceedings under the petition for a writ of assistance. The decree does not find that the legal title was not in Dugger, nor does it divest him of the title. It expressly recognizes his legal title, but finds that he holds his legal title subject to certain equities in Pearce and the creditors of the firm of Benfro & Pearce, and directs that the lots be sold for the payment of the partnership debts, allowing fifteen months for redemption. It does not follow from this decree that Dugger, or his grantees, ever were divested of the legal title. We do not say that the court erred in admitting in evidence the record of the proceedings of the Washington Circuit Court in the matter of the petition for a writ of assistance. These were admissible just as proof of an actual ouster was admissible. But we do say that the judicial determination in that proceeding, to which the heirs of Dugger were not parties, and of which the grantees of their ancestors gave them no notice, did not, as to them, establish the fact of a divestiture of title. From aught that they know or we know, from this record, Pearce may never have procured a deed from the master. Many sales are made by masters in chancery that never culminate in a conveyance of the fee. Where a grantee is ousted under a legal proceeding, to which his grantor is not a party, he must give due notice of such proceedings to his grantor, or else, in any subsequent suit against his grantor on the covenants of his deed, he has to assume the burden of proving the validity of the title of him by whom he was ousted. Bor do we deem it material that, in the present instance, Pearce elected to proceed against Oglesby by petition for a writ of assistance, instead of by an action of ejectment. There is clearly a link wanting in this part of the case, and that link is the deed to Pearce, if any such deed there be. Fisk v. Woodruff, 15 Ill. 15; Claycomb v. Munger, 51 Ill. 373.

The averment in the declaration of a breach is as follows: “ And the plaintiff avers that the said Edward 0. Dugger or Yalinda B. Dugger have not warranted and defended the same premises to the plaintiff, or his grantors, against all 'lawful claims whatsoever, but on the contrary thereof, the plaintiff in fact says -at the time of the date, sealing and delivery of said deed by the said Edward 0. Dugger as aforesaid, the paramount title to said premises was in one Edwin Pearce, by virtue of which said paramount title to said premises, the plaintiff after-wards, to wit: on the 27th day of October, A. D. 1873, was evicted, etc.

There is a variance between the allegations and the proofs. The averment is that at the time of the date and delivery of the deed to Vance, the paramount title was in Pearce, by virtue of which paramount title the plaintiff was afterwards evicted; whereas the proof shows that at the time the paramount title was, as a matter of fact, not in Pearce. In Owen v. Thomas, 33 Ill. 320, where the breach assigned was, that at the time the deed was made the legal title was not in defendant but was in Pobertson and others, and that their title was paramount, and that plaintiff could not obtain possession of the land, the defendant having plead that at the time conveyance was made the fee was in defendant, and that he conveyed same to plaintiff, the defense was held to be good. In the case of covenants for quiet enjoyment and general warranty, the assignment of a breach must be .special. Marston v. Hobbs, 2 Mass. 437.

In this State, on the principle that the mortgagee is the owner of the fee, he can maintain ejectment, but where he resorts to a court of equity to foreclose and sell, the purchaser under the decree, without a deed, cannot assert a hostile title to which the plaintiff could rightfully succumb. The plaintiff’s title must be defeated by a paramount legal title, under which he could oust the plaintiff. The foreclosure sale, deed and eviction, should all be shown. See, in this connection, Brady v. Spurck, 27 Ill. 478.

There is a difference between an eviction under the covenant for quiet enjoyment, and under that of warranty. The former relates only to the possession, and the eviction is merely-required to be of lawful right, while the latter relates to the title, and the eviction must be not only by lawful right, but -by paramount title. 2 Washburn, Real Prop. 665; Fowler v. Paling, 6 Barb. 165.

It is true that the general doctrine is that under the covenant > of general warranty, the covenantee, in order to recover, must show either that he is unable to obtain possession under the title derived from the grantor, by reason of'a paramount title by which the land is adversely held, or that he has been evicted bjr a paramount title outstanding at the time of the execution of the deed. Beebe v. Swartwout, 3 Gil. 162; Moore v. Vail, 17 Ill. 185; Claycomb v. Munger, 51 Ill. 373; Bostwick v. Williams, 36 Ill. 65, and Brady v. Spurck, supra.

This general rule is subject, however, to some exceptions, one of which is, where the covenantor, by his prior or subsequent acts, defeats the title that he has covenanted to warrant and defend. Where a plaintiff can show an eviction under a paramount title derived from a wrongful subsequent sale by the grantor, or derived from an act of the grantor, prior to the sale to him, and which after such sale, culminates in paramount-title, then he can maintain an action on the covenant of general warranty. Jones v. Warren, 81 Ill. 343.

But, as we have seen in the case of this covenant and in the case of covenant for quiet enjoyment, the breach must be special, otherwise the covenantee might recover for an eviction occasioned by his own acts. The special breach averred must be the breach proven, for otherwise there will be a variance, and if the case of the plaintiff is the case of the exception, then the plaintiff, both by his pleading and proof, must bring himself within the exception. It is suggested by appellee that the maxim “ Utile per inutile ■non mtiutur,” will apply to his declaration in this case, and that the whole of the covenant, except that plaintiff was evicted by a superior title in one Pearce, could be rejected as surplusage. But the rule contended for would not apply to the case at bar, for the averment is not foreign and impertinent to the cause, nor is it repugnant to precedent matter, but the very ground of action is misstated.

The matter that is claimed to be surplusage, we regard as substantive, for suppose it stricken out and the averment simply to be as suggested, that appellee was evicted by a superior title'in one Pearce,.non constat, but that such superior title may have grown out of the act of appellee himself, the plaintiff must recover, if at all, secimdem allegata et probata. McConnell v. Kibbe, 33 Ill. 175; Boynton v. Robb, 41 Ill. 349; Rudd v. Williams, 43 Ill. 385.

The deed from Dugger to Vance is in the record in this case, and contains covenants, perhaps somewhat variant from the covenants alleged in the declaration. Upon the covenants contained in the deed, the plaintiff can readily frame breaches under which he can recover, if so entitled, upon the supposed state of facts in the case.

Another point upon which the evidence in this case is wholly insufficient to support the findings of the court is, that it nowhere shows that property^ either real or personal, to any certain value, had ever descended or been distributed to the heirs. It may be true that Dugger left about $5,000 in pérsonal property, and $10,000 worth of real estate, and that after the payment of debts, the administrator had paid over and settled the balance with the widow and heirs, but it nowhere appears from the evidence what the balance was. The payment of the debts may have absorbed nearly all of the estate, and the amount distributed may have been a merely nominal sum, or, at all events, a sum not sufficient in any view of the law to justify a judgment for $4,114.83, and the awarding of execution against the heirs for that amount. . In fact, the phraseology of the admission in regard to this balance paid over, would rather seem to imply that it was a balance in the hands of the administrator of the whole estate after a sale of the real estate, otherwise, how could the administrator have settled it with, or paid it to, the heirs?

Considerable criticism is indulged in by the attorneys for appellants upon the several sections of the Statute of Frauds and Perjuries that afford joint remedies for the debts, and liabilities of a deceased person, against the executor or administrator, and against the devisees or heirs, and it is elaborately argued and seriously contended that in a case of such a character as this, the appropriate and only remedy is in chancery, and it is even assigned as error that the court found for appellee upon the ground that there is no jurisdiction in such a case as this in a court of law.

The statute expressly gives the right to maintain against the heir or devisee the same actions which lie against executors and administrators, and to maintain joint actions, and the right to thus sue in an action at law, the devisee or heir, is expressly recognized in the cases of Ryan v. Jones, 15 Ill. 1, and Branger v. Lucy, decided by the Supreme Court at the June term, 1876, as yet unreported.

It is true that the case of Van Meter’s Heirs v. Love’s Heirs, 33 Ill. 260, was. in chancery, but that was a bill by the wards for an account, and the appropriate remedy was by bill.

The administrator .was properly and necessarily made a party defendant in this suit; the assets in the hands of the administrator are primarily liable for the debts of the deceased, and under the statute you can only sue the heirs without joining the administrator in two cases; where there is no administration within a year, and where a-judgment has already been obtained against the administrator, and there are no personal assets. B. S. 1874, chap. 59, sections 14, 15 and 16.

Hor can the administrator complain of a judgment against him (piando acciderimt. Such judgment does not imply assets, and the heirs may have aliened the real estate before suit brought, and may be insolvent, and after discovered assets may come to the hands of the administrator, in which event the plaintiff would be entitled to have a scire facias.

If we admit that by the 11th and 12th sections of this statute remedy is given against the heirs only as to real estate descended, yet that makes no difference in this case. The contract of the ancestors was under seal, and the heirs were expressly included in the covenants of the deed, and by the common law the heirs of the contracting party when expressly named in the contract are liable to an action for the breach of it, if they have legal assets by descent from the obligor. But if it was only in particular cases that heirs were liable, as to lands descended, for the debts of the intestate, and in those cases only when they had not aliened before suit brought. Therefore, the necessity for these statutory provisions. Ryan v. Jones, supra.

The widow was properly joined as a party defendant under our statute of descent. She is in any event as to one-third of the personal estate of the intestate, an heir of the intestate. But we are unable to see upon what theory the guardian of the infant heirs of Dugger was made a defendant in this suit, or what judgment could properly be rendered against him. R. S. Chap. 59, Sec. 17, and Chap.-64, Sec. 18.

The judgment rendered by the court below was erroneous. It was personal against all the children and the widow for §4,114.83, and for costs, and it awarded execution against them for that amount, and then the administrator, too, was expressly excluded from such judgment, and the order as to him was that the judgment be of assets quando acciderint, but for what sum quando acciderint nowhere appears. Under an execution issued on this judgment, the whole amount of the judgment might well be made by the sale of the property of one of the children alone, or of the widow alone, although there can be no claim under the evidence that any one of the appellants has inherited that value of property from the intestate.

The assessment of damages and the judgment should have been m solido against the administrator and the heirs, including the widow. Ro execution should have been awarded against the administrator, but as to him, the judgment should have been quando acciderint. The widow should have been subjected to no greater liability than the value that she had received under the statute of descents, and excluding widow’s award, from the personal estate of her husband, and this value should have been ascertained by the court. Each of the several children should have been subjected to no greater personal liability than the amounts that they had severally received from the personal estate of their father, and the value of the rents and profits, if any, that they had severally received issuing out of real estate inherited from him; other than thus stated, and in the absence of proof of any bona fide alienations before action brought, they would be answerable for nothing “ as if -the same were their own proper debts,” but the judgment, otherwise than as indicated, should have been rendered against them, to be satisfied only out of the real estate which descended to them from their intestate father. Van Meter’s Heirs v. Love’s Heirs, supra; Branger v. Lucy, supra.

It is true that the consideration expressed in the deed from Criley to Oglesby may be inquired into, but we deem it wholly immaterial whether such consideration was paid directly to Criley, or by his consent settled with Vance. The evidence is somewhat conflicting as to what the amount of the actual consideration was, but as there will probably be a second trial of the case, it is inexpedient to discuss the evidence upon this point.

For the errors indicated, the judgment of the Circuit Court will he reversed, and the cause rfemanded.

Reversed and remanded.