text:
    Marjorie M. Borman, Appellee, v. Thomas L. Borman, Appellant.
    Gen. No. 39,371.
    Heard in the second division of this court for the first district at the June term, 1936.
    Opinion filed June 29, 1937.
    ¡Rehearing denied July 9, 1937.

      Lowitz & Lowitz, of Chicago, for appellant; Leo H. Lowitz and Raymond Lowitz, of counsel.
    Topliff & Horween, of Chicago, for appellee; Samuel Topliff, Ralph Horween and J. A. Farrell, of Chicago, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.

August 23, 1930, Marjorie M. Borman, then a resident of Multnomah county, Oregon, filed suit in that county against Thomas L. Borman, her husband, for dissolution of their marriage on the ground of desertion, praying for the custody of their minor child, a money judgment for support, and for other relief. Borman was served personally in the State of Oregon, but failed to appear and was defaulted. A decree was entered reciting that the court had jurisdiction of the subject matter and parties, finding that plaintiff was entitled to live separate and apart from her husband and to an award of $125 a month for her maintenance and support and the support of the child, and an order was entered accordingly.

Thereafter plaintiff filed a petition in the circuit court of Cook county based upon the proceeding in Oregon. Defendant was served personally with summons in Illinois. Before proceeding to a final adjudication in the circuit court of Cook county, however, plaintiff, April 25, 1935, petitioned the judges of the circuit court of Multnomah county to find the amount of money then due plaintiff from defendant, and the court there found that there was due plaintiff $2,355, and entered judgment on the petition. That judgment was never satisfied in Oregon. Afterward plaintiff supplemented the petition filed in the circuit court of Cook county by setting up the proceedings in Oregon and praying judgment for $2,355, interest and costs. Defendant filed an answer admitting some of the allegations of the petition, denied others and challenged the jurisdiction of the Oregon court in the divorce proceeding to enter a decree of separate maintenance which also included a provision for support money for plaintiff and the child. The amended answer was stricken on motion of plaintiff and final judgment was entered in her favor January 24, 1936, for $2,355 and costs, which was the amount adjudged by the Oregon court to be due plaintiff. Defendant elected to stand by the answer, and upon entry of the judgment prosecuted an appeal to the Supreme Court of Illinois on the ground that a constitutional question was involved. The Supreme Court, in an opinion filed December 10, 1936 (Borman v. Borman, 364 Ill. 601), transferred the cause to this court for determination.

It is urged among' the various grounds for reversal that the Oregon decree and judgment was void because separate maintenance was granted in a divorce proceeding; that the decree of separate maintenance was not responsive to the pleadings and determined matters outside the issues; and that the decree, being void for lack of jurisdiction, is subject to collateral attack in the courts of this State. In order to maintain this position defendant’s counsel are driven to the necessity of arguing that the Oregon decree was void because no jurisdiction was conferred on the court in Oregon to enter a separate maintenance decree in the divorce action. It must be conceded, however, that the Oregon court in which the petition was filed is a court of general jurisdiction, empowered to hear actions for separate maintenance as well as divorce, and that the petition contained allegations which would have justified the Oregon court in entering a separate maintenance decree if that relief had been specifically sought. Furthermore, the petition also contained a prayer for relief other than the dissolution of the marriage contract. These circumstances are emphasized in the opinion of the Supreme Court in Borman v. Borman, supra, in the following language (p. 603):

“The prayer of the petition filed in the Oregon court was for a dissolution of the marriage contract, but there was also a prayer for other relief. Some of the allegations of the petition were appropriate if contained in a petition for separate maintenance, though it also prayed for a dissolution of the marriage. It does not appear by the record or from the statutes of the State of Oregon which are cited, that the only remedy available to the plaintiff was one of divorce under the petition filed in that State. It appears that the court in which the petition was filed is a court of general jurisdiction and has jurisdiction to hear actions for divorce and separate maintenance. Jurisdiction of a court to hear and determine a cause does not depend upon actual facts alleged but upon authority to determine the existence or non-existence of such facts and render judgment according to such finding. (People v. Sullivan, 363 Ill. 34.) Even though the Oregon court exercised a special statutory power, it had jurisdiction, under proper pleadings, to award divorce or separate maintenance and it had jurisdiction of the parties. The record sufficiently shows these facts. Support money was awarded but it was not designated as alimony, and there was no final adjudication of divorce.”

The Supreme Court did not pass upon the question whether relief of the nature granted could have been awarded under the laws of Oregon under the pleadings in that case, and transferred the appeal because it required a construction of the laws of Oregon and involved no constitutional question. In conclusion the court said (p. 604) that “it is only where the facts recited in the record of a judgment in another State show either a lack of jurisdiction of the subject matter or of the parties that a direct appeal from the circuit (or superior) court may be" taken to this court.”

The immediate question thus presented for determination is whether relief of the nature granted could have been awarded under the laws of Oregon upon the pleadings in that case. The complaint in Oregon alleged that plaintiff was then and had continuously for more than one year immediately preceding the commencement of that suit been a resident and inhabitant-of Multnomah county, Oregon; that the parties were married February 27, 1912, at Portland, Oregon, and had since that date occupied the status of husband and wife; that as the result of the marriage one child, Edith M. Borman, had been born and resided with its mother, the plaintiff; that about December 28, 1927, defendant, disregarding the solemnity of his marriage vows, voluntarily, wilfully and without cause or justification, either in the consent, acquiescence or wrongful conduct of plaintiff, and against her advice and judgment, and without any intention on the part of defendant to return, deserted and abandoned plaintiff, whereby the marriage contract and' its purposes had been destroyed, and that this intentional abandonment had been continuous and uninterrupted since 1927 up to and including the date of filing of the complaint, by reason whereof the health and peace of mind of plaintiff had been destroyed; that there were no property rights to be settled between the parties; that defendant was a civil engineer by profession, and when employed earned upward of $325 a month; that he is an able-bodied man, and that plaintiff, who is not at fault in any particular, is a fit and proper person to have the custody and rearing of the child of said marriage. The petition prayed that the contract of marriage then existing between the parties be dissolved and held for naught, that plaintiff be awarded the custody of Edith M. Borman, the minor child, reserving to defendant the right to visit his daughter at such reasonable times as might be agreed upon by the parties or designated by the court, that plaintiff receive of and from defendant, and defendant be required to pay for the use and benefit of plaintiff and the child $175 a month until the further order of court, and that plaintiff may have such other and further relief as to the court may seem equitable.

Undoubtedly, most of these allegations were appropriate to a petition for separate maintenance and the general prayer for relief empowered the court, in the absence of a specific statute to the contrary, to enter a separate maintenance decree even though a dissolution of the marriage was specifically prayed. Defendant’s counsel cite no authority holding that a decree based upon a petition, containing allegations of this nature and a general prayer for relief, rendered by a court having jurisdiction to enter both divorce and separate maintenance decrees, can be regarded as a void decree. In order to maintain his position that this decree can be attacked collaterally in Illinois, it would be incumbent upon defendant to show that the Oregon decree was void. We find no authority for such a conclusion under the circumstances of this case.

Sec. 34 of the Civil Practice Act of Illinois (ch. 110, Illinois State Bar Stats. 1935, ¶ 162; Jones Ill. Stats. Ann. 104.034) provides that every complaint and counterclaim shall contain specific prayers for the relief to which the pleader deems himself entitled, and that such relief, whether based on one or more counts, may be asked in the alternative, and, “except in case of default, the prayer for relief shall not be deemed to limit the relief obtainable but where other relief is sought the court shall, by proper orders and upon such terms as may be just, protect the adverse party against prejudice by reason of surprise.” Counsel for defendant have not pointed out any provision in the Oregon statutes similar to the one hereinbefore italicized, which would limit the relief obtainable “in case of default” to the specific prayer contained in the petition, as does the Illinois act, and we find no such provision. We may, therefore, assume that under the statutes of that State the Oregon court could have entered either a divorce or separate maintenance decree under proper allegations of the complaint and upon a sufficient showing made by plaintiff in that proceeding.

Under the law of Illinois there is a strong presumption that the judgment of a foreign State is valid. It was so held in Nelson v. Sutton, 232 Ill. App. 93, and cases cited therein. In the Nelson case the court said (p. 100):

“Where a judgment has been rendered by a court of general jurisdiction, there is a strong legal presumption that the court had jurisdiction to render the judgment and that its proceedings conform to the law of the State in which it was rendered.”

The court also held in Nelson v. Sutton, supra (p. 100):

“A judgment of a sister State cannot be impeached by establishing irregularities in the form of the proceedings, or upon the ground that the decision is erroneous. ... If this judgment was valid and binding under the laws of South Dakota, then it was binding on the courts of Illinois, and it is immaterial what may be the holding of courts of other States upon the question involved in the case. If the judgment was valid in South Dakota, then it would be sufficient to form the basis of the suit in Illinois and the trial court was in error in holding to the contrary. ’ ’

It has been held in Oregon that a court of equity may grant affirmative relief even though such relief was not specifically prayed. (Gilmore v. Burch, 7 Ore. 374.) In Crabill v. Crabill, 22 Ore. 588, the Supreme Court of Oregon held a divorce decree binding on the parties even though the complaint did not state a cause of action. In discussing the question, the court said (p. 589):

‘ ‘ The court, therefore, had jurisdiction of the parties and of the subject matter of the suit; and the decree which it rendered was within the jurisdiction conferred on it by law. Such being the case, the rule of law is well settled that when a judgment or decree is rendered by a court thus invested with jurisdiction of the parties and subject matter, although the judgment or decree rendered therein may be erroneous, it is obligatory until reversed. Such a decree cannot be treated as a nullity merely because it was improvidently made, or in a manner not warranted by law.”

In several recent Illinois decisions it was held that the judgment or decree of a court having jurisdiction of the general subject matter of the cause and of the parties cannot be collaterally attacked, although erroneous. (Woodward v. Ruel, 355 Ill. 163; First Nat. Bank of Palatine v. Hahnemann Institutions of Chicago, Inc., 356 Ill. 366; People v. Sterling, 357 Ill. 354.) In Woodward v. Ruel, supra, the court said (p. 172):

‘ ‘ The judgment of a court which has jurisdiction of the subject matter and of the parties and possesses the power to render the particular judgment, even though erroneous, is immune from collateral attack. ’ ’ It thus appears that both under the laws of Illinois and Oregon, where a court has jurisdiction of the parties and subject matter, a judgment regularly entered, even though it may be erroneous, is nevertheless valid until reversed on appeal or writ of error, and cannot be considered as a void judgment subject to collateral attack in another State.

Although other points are urged by defendant as ground for reversal, his entire defense is founded on the contention that the Oregon decree was void and subject to collateral attack. Holding as we do that this position is untenable under the record of this case, we consider it unnecessary to discuss the other points. Therefore the judgment of the circuit court is affirmed.

Judgment affirmed.

Scanlan and John J. Sullivan, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Scanlan

license: Public Domain

text:
    People of the State of Illinos ex rel. Maria Carofiglio et al., Appellees, v. Joseph L. Gill, Appellant.
    Gen. No. 39,295.
    Heard in the second division of this court for the first district at the December term, 1936.
    Opinion filed June 29, 1937.
    Rehearing denied July 9, 1937.
    Thomas J. Courtney, State’s Attorney, for appellant; Hayden N. Bell, Jacob Shamberg, William P. Kearney and Gerald E. Hornidge, Assistant State’s Attorneys, of counsel.
    Maloney & Wooster, of Chicago, for appellees.
   Mr. Justice Scanlan

delivered the opinion of the court.

This is an appeal from a judgment awarding a writ of mandamus against the county treasurer of Cook county, requiring him to pay to plaintiffs the sum of $5,719.56, which was a balance withheld by the treasurer out of moneys deposited with him by the Forest Preserve District to pay a judgment entered in a condemnation cause.

Plaintiffs are the heirs of Vincent Carofiglio and the administrator of his estate. The petition alleges that plaintiffs were entitled to receive an award given in a condemnation proceeding entitled “Forest Preserve District of Cooh County v. Carofiglio,” in the superior court of Cook county; that the property involved (owned by Carofiglio in his lifetime) was a subdivided tract of vacant residential property west of the village of Glencoe, in Cook county; that in February, 1929, Carofiglio platted and subdivided the tract for the purpose of placing it upon the market for sale; that on April 19, 1929, an ordinance Avas passed by the Forest Preserve District of Cook county selecting the tract as a forest preserve site; that to apprise the public that the property was to be taken for forest preserve purposes and was no longer available for residential use, the District published and recorded the ordinance, which was passed to prevent the sale of the property by the owners and to cloud the title to the same; that no steps were taken by the District after the passage of the ordinance until November 19, 1931, when the petition for condemnation was filed; that the proceeding Avas not brought to trial until October, 1935; that during the latter part of 1933, or during January or February of 1934, the District illegally and wrongfully entered upon the property, by their agents, and dug a ditch through it, which has since been used by the District to provide drainage for property north of the property of petitioners; that the ditch created a barrier to .the use of the property; that in the condemnation proceeding a judgment was rendered in favor of plaintiffs for $21,005, on October 11, 1935; that thereafter the District deposited that • sum. with appellant and the latter paid to plaintiffs $13,027.40 of the same but refused to pay the balance, on the ground that it was withheld for the payment of taxes for the years 1930, 1931, 1932, 1933, 1934 and 1935; that plaintiffs then directed appellant to pay, out of the moneys held by him, the taxes levied for 1930 and eleven-twelfths of the taxes for 1931; that appellant, in obedience to the direction, paid taxes in the amount of $2,153.49, and plaintiffs received a paid tax bill therefor; that appellant still withholds from plaintiffs $5,824.04; “that upon the filing of the said order of condemnation of November 19th, 1931 [petition for condemnation], the . . . District condemned the said land, and that the . . . District had long prior to the said date, appropriated the said land to their own use by the passage of the said ordinance herein referred to, and that the . . . District by the filing of the condemnation suit became liable for taxes levied against the property on and after the filing of the petition of condemnation, and that it became and was the duty of the said Joseph L. G-ill to pay to the petitioners all of the said funds. ’ ’ The petitioners prayed for a writ of mandamus directing appellant to pay to them the $5,824.04. Attached to the petition as an exhibit is an ordinance passed by the District on April 19, 1929, which states that it is desirable and necessary to acquire plaintiffs’ property for forest preserve purposes, and authorizes the chief of the real estate department of the District to negotiate with the owners of the property for the purchase by the District of the property at a sum not to exceed $1,200 per acre. The ordinance provides that if the negotiations for purchase fail, then the attorney of the District is instructed to institute proceedings to acquire the property under thé eminent domain laws of the State. The answer of appellant admits that plaintiffs are the persons entitled to the award in the condemnation proceedings, but avers that the award is subject to certain limitations; denies that the publication of the ordinance affected the property in any manner; denies that the District failed to prosecute the condemnation proceedings diligently; denies that the District at any time illegally and wrongfully took physical possession of the property in any manner; denies that the District owned the property prior to the condemnation judgment ; denies that the filing of the petition to condemn the premises in any manner affected plaintiffs ’ title to the same or transferred such title to the District; denies that the District, by the filing of the condemnation proceedings, became liable for all general taxes due and outstanding against the premises; denies that the District appropriated the land to its own use by the passage of the ordinance; denies that it was his duty to pay to plaintiffs the amount withheld; denies that he was under any duty to pay any sum or sums to plaintiffs so long as there remained unpaid any general taxes assessed and levied against the premises for the period prior to the date of deposit of the judgment award with him, and avers that it was his duty as county treasurer and as ex officio county collector to deduct said sum on account of the delinquent taxes.

In entering judgment for plaintiffs the trial court excluded the sum of $104.48, which represented the amount of the taxes for the month of December, 1931.

The sole question to determine is, Are the general taxes that became a lien against the property, after the filing of the condemnation petition but before the entry of the condemnatipri judgment, to be borne by the owners of the property? The trial‘court answered the question in the negative, basing his ruling upon City of Chicago v. McDonough, 273 Ill. App. 392, recently decided by the first division of this court, wherein it was held that “any liens which attached to the land after the filing of the petition must be borne by the City of Chicago for the use of schools”; that “whether the City will be required to pay the taxes in question, or whether the property will be considered as exempt by virtue of section 3 of article 9 of the Constitution of 1870, and section 2, ch. 120 of Cahill’s Revised Statutes, obviously is not before us”; that “the general taxes for 1929 and 1930, which became a lien after the petition for condemnation was filed, are not payable out of the compensation awarded. ’ ’

The city of Chicago made no effort to have the McDonough case reviewed by the. Supreme Court. Appellant concedes that it sustains the ruling of the trial court, but strenuously contends that the decision is contrary to the ruling of the Supreme Court in People v. Price, 282 Ill. 519. In the McDonough case the city contended that the Price case decided the question before the Appellate Court, but Mr. Justice O’Connor, who wrote the opinion in the McDonough case, held that the question before them “was in no way involved” in the Price case. We are forced to disagree with that holding. The Price case involved a condemnation proceeding to widen Twelfth street, commenced April 7, 1911, wherein the city took a part of the property in question. The total amount awarded the owners, $236,000, was paid by the city on May 4, 1917, an order for possession was entered, and the city took possession of the property. The owners paid the entire taxes for the years 1910 to 1915, inclusive, but. the 1916 taxes on the entire strip, amounting to $2,342.40 and interest, were not paid, and the county collector applied for. judgment and an order for sale for failure to pay takes, and the county court entered such a judgment against the entire property for the full amount of said taxes and interest., The property owners appealed from that judgment.

To quote from the opinion of the Supreme Court (pp'. 521-2):

..“The tax levy complained of was against all the property, including that condemned as well as the strip not condemned. Appellants assert that they are willing to pay the proper proportion of the taxes assessed on the property not taken but should not be required to pay on the property taken. The judgment of the county court as to the unpaid taxes was entered against all of the property, both the strip not taken and the land that was taken by the city, and this seems to be in accordance with the holding of this court that taxes upon real estate are a lien or charge upon the land itself on the first day of May each year they are levied. Cooper v. Corbin, 105 Ill. 224; Wabash Eastern Railway Co. v. East Lake Fork Drainage District, 134 id. 384.
“Appellants contend that the petition for condemnation having been filed long before this tax was levied, which proceeding destroyed, in a large measure, the rental value of the property, a tax upon the basis of the original frontage or amount of property should not be collected; that the value assessed for taking property is always required to relate back to the time of filing the petition. (Lambert v. Giffin, 257 Ill. 152; East Side Levee District v. East St. Louis and Carondelet Railway, 279 id. 123.) They argue that even though the owner is not deprived of the legal title until the money is actually paid, he should not, in equity, be required to pay taxes on the property under circumstances such as here attempted to be shown when the rental value of the property has been greatly injured by the filing of the condemnation proceedings. ■ The rule is, that the title to property condemned does not vest until damages awarded by the judgment are paid. (Chandler v. Morey, 195 Ill. 596; Chicago and Northwestern Railway Co. v. City of Chicago, 148 id. 141.) This rule is undoubtedly based on the fact that the party condemning need not take the property, even after judgment, unless he desires to do so. (2 Lewis on Eminent Domain, 3d ed., sec. 955.) The rights of the various parties, under such circumstances, are controlled by the statutes of the different States. In this State, by an amendment to the Eminent Domain act in 1897, it was provided that the petitioner shall pay the defendant’s costs, expenses and reasonable attorney’s fees if he fails to pay full compensation within the time fixed by the order of court condemning the property. (Chicago and Western Indiana Railroad Co. v. Guthrie, 192 Ill. 579.) This entire property, under the statute of this State as construed in Cooper v. Corbin, supra, was liable to taxes for the year 1916 on May 1,1916, and subject to the lien of said taxes from that date on, and the usual rule is that this tax lien is not divested by condemnation proceedings. (2 Lewis on Eminent Domain, 3d ed., sec. 524.) To require appellants to pay taxes on the entire tract for the year 1916, under the circumstances set out in this record, may not be absolutely equitable, but under the statutes and authorities cited, as the title remained in appellants until after these taxes became a lien on the entire tract, we are compelled to hold that the judgment of the county court was correct. If the. ruling should be otherwise in cases of this kind, the remedy lies with the legislative branch of the government and not with the courts.
“The judgment of the county court will be affirmed as to these taxes on this property, including that taken by the eminent domain proceedings.”

The Price case, in our judgment, clearly binds us to hold that in the instant proceeding the general taxes that became a lien against the property after the filing of the condemnation petition but before the entry of the condemnation judgment, must be borne by the owners of the property. The ruling in the Price case has never been reversed or qualified, and in People v. Atwater, 362 Ill. 546, it is cited with approval.

Plaintiffs cite, in support of the ruling in the McDonough case, In re Mayor, etc., of City of New York, 58 N. Y. S. 58, and Sherwin v. Wigglesworth, 129 Mass. 64. In view of the ruling in the Price case it is unnecessary for us to consider decisions of sister States, but we may say that in New York, by statute, the actual appropriation of property occurs at a time prior to the ascertainment of the amount of damages to be paid; and in the Massachusetts case, while by the provisions of the act of Congress and the statute of Massachusetts the title in the land taken did not vest in the United States .until the assessment and payment of the damages, it appears from the opinion that upon the filing of the condemnation petition the land is designated and set apart for public use and the owner cannot enjoy it nor improve it. No such consequences follow the commencement of condemnation proceedings in this State. To quote from People v. Atwater, supra (p. 552):

“We said in Mills v. Forest Preserve District, 345 Ill. 503, 509: ‘The enactment of the ordinance directing the purchase or condemnation of the land was not a taking of the land in any sense. It conferred no right in the land and did not interfere in any way with its use, control or disposition. Its only effect was an indication of an intention to negotiate for the purchase of the land. It may be an embarrassment to a land owner that his land is subject to be taken for a public use — a highway, a street improvement, a public building — but it is one of the conditions on which an owner of land holds it in this State. Even the filing of a petition for condemnation gives no more interest in land than negotiations for its purchase. Both are methods of procuring title and neither gives any interest in the land until completed. City of Chicago v. Ridge Park District, 317 Ill. 123; Van Winkle v. Loehde, 336 id. 327; Forest Preserve District v. Kean, 303 id. 293.’ ” Indeed, plaintiffs concede that in this State “property condemned cannot be devoted to public use until it has legally been taken possession of and paid for. ’ ’

Plaintiffs argue that because the District, prior to the condemnation judgment, dug a ditch across their property and used it for drainage purposes, the judgment should be affirmed. Under the law of this State, such an action on the part of the District would amount to a trespass, and plaintiffs would have a right to seek damages, in a proper action; but they cannot defeat a judgment in the instant suit by interposing the claim of trespass. Plaintiffs also contend that the judgment should be affirmed for the reason that the District delayed the trial and condemnation proceedings for a period of four years. While such a contention cannot be raised to support the instant judgment we note that in a very recent decision of the Supreme Court (Roach v. Village of Winnetka, Docket No. 24027, opinion filed June 11,1937) the court held that “under section 13 of article 2 of the constitution of 187Ó a property owner has a right of action to recover damages occasioned by wrongful delay in the prosecution of condemnation proceedings. ’ ’

The judgment of the superior court of Cook county is reversed, and the cause is remanded with directions to the trial court to dismiss the cause.

Judgment reversed, and cause remanded with directions to trial court to dismiss cause.

Friend, P. J., and John J. Sullivan, J., concur.


author: Mr. Justice John J. Sullivan

text:
    Dorothy F. Jardine, Appellee, v. Charles A. Jardine, Appellant.
    Gen. No. 39,041.
    Heard in the second division of this court for the first district at the October term, 1936.
    Opinion filed June 29, 1937.
    Rehearing denied July 9, 1937.
    Marlow J. Madden, of Chicago, for appellant.
    Benjamin H. Ehrlich, of Chicago, for appellee; Aaron H. Cohn, of Chicago, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

This appeal seeks to reverse a decree granted to plaintiff, Dorothy F. Jardine, annulling her marriage to defendant, Charles A. Jardine.

Plaintiff’s complaint filed May 17, 1935, alleged substantially that she married defendant August 7, 1931, in Evanston, Illinois, and that she lived with him as his wife until February 19, 1935, when she left him after being informed that their marriage was illegal and void because the decree of divorce which he secured in Reno, Nevada, on August 3, 1931, from his then wife was a nullity; that he left the State of New York, where he actually resided, and went to Reno, Nevada, where he established a residence for the statutory period of six weeks for the sole purpose of securing a divorce in the latter State, and that he immediately left the State of Nevada on August 3, 1931, after the entry of the aforesaid decree of divorce on that date, returning to Evanston, Illinois, for his marriage to plaintiff and within a few days thereafter to New York City; that when he went to Reno, and lived there for six weeks before filing his complaint for divorce, he did so without any intention of remaining or residing there permanently or for an indefinite period but solely for the purpose of procuring a divorce from his then wife and “for the purpose of fraudulently attempting to confer jurisdiction upon the Second Judicial District Court for the State of Nevada in and for the County of Washoe in the said divorce proceedings”; and that in said cause the defendant' presented false testimony as to his residence and perpetrated a fraud upon the Nevada court, causing it to enter a decree August 3,1931, granting him a divorce from Marie Josephine Jardine. The complaint herein prayed that plaintiff’s “purported marriage of August 7, 1931,” to the defendant “be declared to be null and void and a decree of annulment be entered herein.”

Defendant’s answer denied any fraud in his procurement of the Nevada decree of divorce or as to the bona tides of his intention to maintain a residence, either permanently or indefinitely in that State, and set out in detail the circumstances under which plaintiff accompanied him to Nevada and paid his personal expenses as well as the costs and expenses of his divorce so that she could marry him. Defendant asked that plaintiff’s complaint be dismissed for want of equity.

Defendant’s contentions as stated in his brief are “that there was no fraud affecting jurisdiction perpetrated upon the Nevada court; that the record of the Nevada proceedings, being without error on its face, was entitled to full faith and credit and could not be attacked collaterally by a stranger to those proceedings, and further, that plaintiff, having shown or alleged no legal interest in the Nevada proceedings and because of her participation and unclean hands, was barred and estopped under any circumstances to attack that Nevada decree collaterally; that the Nevada record, béing without error on its face, the decree was absolutely valid. ’ ’

Plaintiff’s theory as stated in her brief is “that she may properly bring this suit to annul the marriage between the parties hereto by showing that the defendant did not have the capacity to' marry her. In this case plaintiff asserts that defendant was incapable of contracting a legal marriage with plaintiff because he had a wife then living," the Nevada decree of divorce being void because the court that entered it had acquired no jurisdiction over'the parties and because such decree was obtained by the practice of fraud upon the Nevada court. It is plaintiff’s theory that in this attack upon a void marriage she can show the invalid divorce; that under such circumstances she is no stranger to the proceeding and has a legal interest in the subject matter of the suit; that the doctrine of ‘unclean hands’ advanced by the defendant to bar plaintiff, in this action has no application to causes of this kind. ’ ’

The first question presented is whether the defendant when he went to Reno, Nevada, and lived there for the statutory period of six weeks, did so solely for the purpose of obtaining a divorce or whether it was his intention as an actual, bona fide resident of the State of Nevada to remain there permanently, or, at least, for an indefinite period. His intention is to be gleaned not so much from what he now states such intention to have been, but from the facts and circumstances as they occurred. That his sole purpose in going to Nevada was to secure a divorce is clearly established, and the following pertinent findings of the decree in the instant case on this material question are abundantly supported by the evidence:

‘ ‘ The Court further finds that the defendant on July 11, 1931, and for many years prior thereto, was a resident of the State of New York; that he was then married to Marie Josephine Jardine and was the father of three (3) children born unto him by the said Marie Josephine Jardine ; that for several years prior to July, 1931, the said defendant consorted with the plaintiff herein, then a divorcee, and concluded with her to travel together to Reno, Nevada, for the purpose of procuring a divorce from his said wife; that pursuant to said plan the plaintiff herein advanced unto the defendant sufficient funds for their transportation and expenses ; that during- the month of May, 1931, they both departed from New York and spent several days at Chicago with her relatives; that during such' sojourn in Chicago the defendant discussed the matter of his plans for the future with the said relatives and told them that after securing his divorce he planned to return- to New York to live and to go into business; that while in Chicago he, with the funds advanced by the plaintiff, purchased two (2) round-trip tickets to San Francisco, California and back to Chicago, with stop-over privileges at Eeno, Nevada.

“The Court further finds that accordingly they arrived at Eeno, Nevada, on May 29, 1931, where the defendant registered at one of the hotels as a resident of Eeno, Nevada, and the plaintiff registered at the same hotel as a resident of Chicago, Illinois.

“The Court further finds that they remained in Eeno, Nevada, for the required six weeks residence period, at the expiration of which said period, he instituted divorce proceedings on the 11th day of July, 1931.

“The Court further finds that on the following day, they proceeded with their travels, visiting San Francisco, California, and Salt Lake City, Utah, wherefrom they flew to Eeno, Nevada, arriving on August 3, 1931, on which date the trial was conducted and the divorce was granted from his said wife.

‘' The Court further finds that immediately after the said hearing, on the night of August 3, 1931, the said defendant and the plaintiff herein departed for Chicago, arriving* on August 7, 1931.

‘' The Court further finds that upon their arrival, the defendant procured a marriage license at the Cook County Clerk’s office, subscribing to an affidavit that he is a resident of the State of New York, and married the plaintiff on that date in the City of Evanston, Cook County, Illinois.

“The Court further finds that on August 9, 1931, they departed for New York, where they lived together as husband and wife for several years, during which time the defendant voted as a resident and citizen of the State of New York.

'‘ The Court further finds from all the testimony that the defendant was not a bona fide resident of the State of Nevada during Ms alleged six weeks’ residence but was in fact and in law a citizen and resident of the State of New York and he traveled to Reno, Nevada, not for the purpose of becoming a bona fide resident there but oMy to obtain a divorce from his wife.”

It has been repeatedly held that no jurisdiction is conferred upon a court to enter a valid decree of divorce where the party procuring same perpetrates fraud or a deliberate imposition with respect to his or her residence in attempting to confer jurisdiction on such court. That Jardine’s mere physical presence in Reno, Nevada, immediately prior to the filing of his complaint for divorce did not confer jurisdiction on the Nevada court to grant him a divorce is generally recognized as the law.

In passing upon this question in Walker v. Walker, 45 Nev. 105, when the statutory residential requirement was six months rather than six weeks, the court said at p. 108:

"Residence in this state for the statutory period of six months solely for the purpose of obtaining a divorce is not sufficient to give jurisdiction, but a bona fide residence with the intention of remaining must appear. Where residence is made the basis of jurisdiction, parties who invoke the power of the court to relieve them from the marriage tie must bring themselves clearly and affirmatively within the jurisdiction of the court. Fleming v. Fleming, 36 Nev. 135, 134 Pac. 445; Presson v. Presson, 38 Nev. 203, 147 Pac. 1081. But the mere fact that the main purpose of one in going to another state is to obtain a divorce will not prevent a divorce there if it is his or her purpose to remain permanently.”

In Latterner v. Latterner, 61 Nev. 285, the court held at p. 290:

"Prior to the amendment the six months’ residence clause had been definitely construed by this court. The residence required was determined to be of a character denoting the present intention on the-part of the one claiming it to make the county in which the suit was instituted the person’s home, at least for an indefinite period. ’ ’

In 9 R. C. L., it is said at pp. 403 and 404:

“So it is generally held that merely going to a state for the purpose of securing a divorce, and residing there the required length of time, but without any intention of remaining there permanently or indefinitely, is not sufficient to give jurisdiction in divorce proceedings.” ■ •

In Way v. Way, 64 Ill. 406, the court held at p. 414:

“A wise policy requires us to hold that he came into this jurisdiction merely to procure a divorce, without any bona fide intention of residence or regular business here, and with the intention of immediate return to his domicile and business in another State, and that the court acquired no jurisdiction of the relation between the parties. Though a suit for divorce, upon its face, is a mere controversy between the parties to the record, yet the public occupies the position of a third party. Society has an interest in every marriage, and it is the duty of the State, in the conservation of the public morals, to guard the relation, and to see that the status of all applicants for its dissolution should be established. ” To the same effect are Hill v. Hill, 166 Ill. 54, and Janssen v. Janssen, 269 Ill. App. 233.

It appearing conclusively that the Nevada court was without jurisdiction to enter the decree of divorce involved here, may the courts of this State inquire into the proceedings and decree of the court of the sister State to determine whether that court lacked jurisdiction of the parties and the subject matter?

In Frey v. Frey, 59 F. (2d) 1046, in passing upon the applicability of the full faith and credit provision of the constitution to a like situation, and upon the right of the courts of one State to inquire into the question of the jurisdiction of the parties and the subject matter by the court of a sister State granting a divorce, the court said at p. 1047:

“Undoubtedly it is true that a divorce granted in any state according to its laws by a court having jurisdiction of the cause and of both the parties is valid and effectual everywhere, but a divorce obtained by a person legally domiciled in one state who leaves that state and goes into another solely for the purpose of obtaining a divorce and with no purpose of residing there permanently, is invalid and the state of bona fide residence may forbid the enforcement within its borders of a decree of divorce so procured. Andrews v. Andrews, 188 U. S. 14, 23 S. Ct. 237, 47 L. Ed. 366. And this is true even though the decree of divorce recites facts sufficient to give the court jurisdiction. Sewall v. Sewall, 122 Mass. 156, 23 Am. Rep. 299: The underlying reason for this is perhaps nowhere better expressed than by Mr. Justice Field in Maynard v. Hill, 125 U. S. 190, 211, 8 S. Ct. 723, 729, 31 L. Ed. 654, where he said: Other contracts may be modified, restricted, or enlarged, or entirely released upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parties to various obligations and liabilities. It is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress.’ ”

In Chamblin v. Chamblin, 362 Ill. 588, a similar doctrine was enunciated in the following language at pp. 590, 591:

“Appellant claims that the decree for divorce in Nevada was obtained through fraud and that the courts of Nevada had no jurisdiction because Chamblin was not a bona fide resident of that State when he brought suit. She relies upon the decisions of the United States Supreme Court and of this court, which hold that the constitutional provision requiring full faith and credit to be given to the judicial proceedings of another State does not prevent an inquiry into the jurisdiction of the court which rendered the judgment or decree, either as to the person or the subject matter, notwithstanding a recital therein of the jurisdictional facts. (Thompson v. Whitman, 18 Wall. 457; Simmons v. Saul, 138 U. S. 439; National Exchange Bank v. Wiley, 195 id. 257.) In consonance with those holdings we have repeatedly announced the same doctrine. (Dunham v. Dunham, 162 Ill. 589; Field v. Field, 215 id. 496; Forsyth v. Barnes, 228 id. 326; Pembleton v. Illinois Commercial Men’s Ass’n, 289 id. 99.) ”

From the foregoing quoted decisions and the cases cited therein, it is clear that since the Nevada court did not have jurisdiction of the parties and the subject matter, the decree of divorce rendered in that State to Jardine is void, that the courts of this State may inquire into the proceedings, judgments and decrees of a court of another State to determine if that court had jurisdiction of the subject matter and the parties, and that there can be no question but that all judgments and decrees rendered by a court without jurisdiction are void. (Field v. Field, supra.)

It having been shown that defendant’s Nevada divorce decree was void because the court there had no jurisdiction to enter same and that the courts of this State in a proper case may inquire into the question of the jurisdiction of the Nevada court, the next question is whether plaintiff, a stranger to the proceeding and decree of the sister State, has the right to attack same collaterally and show the invalidity of such decree. Since the Nevada court was without jurisdiction and therefore without power or authority to enter the divorce decree, such decree was not legally effective to sever the marital relation existing between defendant and his then wife. That divorce being void, defendant was not free to remarry and his marriage afterward to plaintiff pursuant to it was also void. The invalidity of the marriage of the parties, to this proceeding was an established fact since its very inception and all that is sought herein is a judicial pronouncement of its nullity. Such marriage “being a nullity, no decree is necessary to avoid the same. A void marriage is good for no legal purpose and its invalidity may be shown in any court, between the parties, either in the lifetime of the parties thereto or after their death.” (Cartwright v. McGown, 121 Ill. 388.)

In Simmons v. Simmons, 19 F. (2d) 690, the plaintiff filed a bill for divorce against her husband, who, in turn, filed a cross-bill to annul on the ground that when their marriage took place plaintiff had a husband living from whom she had not been legally divorced. That decision is illuminating in that the facts therein are almost identical with the facts here and it determines the question as to the right of a stranger to a void decree of divorce entered in one jurisdiction to attack same collaterally in another jurisdiction, as well as the question as to whether the rule of pari delicto or the equitable principle of “clean hands” are applicable in a proceeding of this nature to bar the granting of the annulment of the void marriage. In that case the court said at pp. 690, 691:

“The court below found from the evidence that the plaintiff and defendant were living together in the District of Columbia as husband and wife under the name of Simmons, although at the time it was known to defendant that plaintiff was a married woman. It was while they were so living together that plaintiff filed her bill for divorce in the Virginia court, and procured the decree above mentioned. The court also found as a fact, and it is fully supported by the record, that the Virginia decree was procured by fraud, ‘both as to the required residence in Virginia of the plaintiff, and as to the alleged desertion of her husband.’ Indeed, it strongly appears that defendant furnished plaintiff with the money to carry.on her suit in Virginia.
" On this state of facts the learned trial justice below in his opinion concluded as follows: ‘To allow him, under these circumstances, to take advantage of the void decree of divorce obtained by Irene Davis in order to avoid the consequences of his marriage to her, occurring about a month after the decree of divorce was entered, would be to lend the aid of the process and authority of this court to conduct that is violative of plain principles of equity and strike a blow at the integrity of the marriage relation.’
“In a case of this sort, neither the principles of equity nor the integrity of the marriage relation are controlling. We are here considering a case involving a marriage which is void ab initio.
i (
“In proceedings to annul a void marriage, especially where it is so declared by statute, the rule of pari delicto and the equitable principle of ‘ clean hands ’ are inapplicable, since in such cases the state becomes a third party. While it is a settled principle of law that, where parties are iii pari delicto, the court will refuse to extend them aid, and will leave them without remedy against each other, it is equally true that, where the state is an interested party, the contributing guilt of the parties to the suit will not operate as a bar to the granting of relief. ‘The rule of par delictum will not be applied, however, to prevent relief in a suit to annul and set aside a void marriage. This is a matter in which the state is an interested party. Under the facts as found by the court, the marriage should be set aside as void, but the parties are entitled to no other or further relief. ’ Szlauzis v. Szlauzis, 255 Ill. 314, 99 N. E. 640, L. R. A. 1916C, 741, Ann. Cas. 1913D, 454.
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“The interest of the state extends beyond the private grievance of the parties directly involved. It sponsors the welfare of society and the sanctity of the marriage relation. It refuses to countenance the continued perpetration of crime between such parties in violation of law and good morals. ‘In this class of cases it is not the private grievance of the complainant alone which is considered, and which controls the nature and extent of the remedy, if any, which may be granted. The state is often called a “third party” to every suit for divorce or nullity of marriage. But not only the state is concerned, but the interests of innocent unborn children may be involved. If a decree of nullity is denied when nullity has been absolutely established by the proofs, the legality of the marriage is not established. . . . The fact that the marriage was null remains. ’ Freda v. Bergman, 77 N. J. Eq. 46, 76 A. 460.
“The equitable rule, that ‘he who comes into equity must come with clean hands,’ has no application where its enforcement would result in sustaining an act declared by statute to be void or against public policy. In such cases, the interest of society intervenes, and the state is regarded as a third party. In the case of Martin v. Martin, 54 W. Va. 301, 46 S. E. 120, 1 Ann. Gas. 612, the parties were prohibited from marrying in West Virginia because of relationship by blood. They went into Pennsylvania and were married. After they had lived together for 18 years, the husband brought a suit to annul the marriage, and the trial court dismissed his bill, on the ground ‘that a court of equity ought not to entertain a litigant who vaunted his own iniquity, and made that his sole grounds for the decree asked from it. ’ The appellate court, reversing this decree, said: 1 If the parties could continue the marriage relationship without violating the criminal laws of the state, then the court might be justified in refusing to entertain the plaintiff’s bill. But, when the law forbids the continuance of their marriage relation, notwithstanding its inception may have been a misdemeanor, it is the duty of both parties to make restitution by having the marriage annulled promptly. Their hands may be unclean, but it is the duty of a court of equity to permit them to clean them, when it can do so, and not permit such uncleanness to continue as a stench in the nostrils of the people. 19 Am. & Em Enc. Law (2d Ed.) 1212; Com. v. Lane, 113 Mass. 458, 18 Am. Rep. 509; State v. Brown, 47 Ohio St. 102, 23 N. E. 747, 21 Am. St. Rep. 790; 16 Am. & Em Enc. Law (2d Ed.) 134. While the rule is that equity will not entertain persons with. unclean hands, yet there are just exceptions thereto, and the statutes of this state on marriage and divorce have mercifully provided that those who unwittingly enter into marriage that leads to the' continual violation of law, notwithstanding their original sin, may have such relation annulled, so that they may go and sin no more. Such transgressors should get from before the public gaze as quickly as possible.’
“In Heflinger v. Heflinger, 136 Va. 289, 118 S. E. 316, 32 A. L. R. 1088, in a suit for annulment on the ground that the marriage was null and void, because it was contracted in violation of a statute of the state within six months from the date of the decree of divorce of the husband from a former wife, it was urged that plaintiff could not sustain his action under the equitable doctrine of ‘unclean hands,’ and on the further ground that the parties were in pari delicto. The case involved a marriage, valid in Maryland, where it was contracted, but void by statute in Virginia, where the parties were domiciled. The court was confronted by the difficult question of conflict of laws, and the power of the Legislature of Virginia to give extraterritorial effect to a statute declaring such a marriage void.
“The court, in an exceedingly able and instructive opinion, Said: ‘The decree of annulment only ascertains that there has been no valid marriage between the parties, and obviates the necessity of ever thereafter being compelled to show its invalidity. If the complainant were acquiring any rights by .virtue of his suit, other than the determination of his status in society, a different rule might apply, but he is acquiring none. McMullen v. Hoffman, 174 U. S. 639, 19 S. Ct. 839, 43 L. Ed. 1117. All he asks is to have judicially declared the fact that the marriage was a void marriage, and in this the public is interested. No property rights are affected, but the true status of the parties in society is ascertained and judicially declared. Under such circumstances, the doctrine of “clean hands” does not debar either party from bringing a suit to have the void marriage declared a nullity. It is not a suit for divorce. There was no valid bond of matrimony to be dissolved. ’
‘ ‘ The decree below cannot be sustained upon the still broader ground of public policy. A void marriage will not be sustained on the theory of civil contract, since such a contract is void as against public policy. It will not be sustained in this instance on any principle of full faith and credit to be accorded the Virginia decree. If the action in Virginia was void and against the law and public policy of the District of Columbia, the full faith and credit clause of the Constitution (Const. U. S. art. 4, sec. 1) has no application to such a judgment.
í i
‘ ‘ The parties could ignore this marriage without any liability whatever to either party. The statute creates an absolute defense in either a direct or collateral proceeding for either party to the transaction, in any proceeding wherein the alleged marriage becomes an issue. In the present case, the decree in favor of the husband would amount to nothing more than a general decree in equity in his favor. The law declares such a marriage void, and the court is without power to validate it, or to in any respect require the parties to live together, or in any manner recognize the validity of the marriage. It is void by law, and the courts have no alternative when the matter is presented, either directly or collaterally, in any matter in which it becomes an issue, but to declare it so.
“It follows, we think, that where it appears to the court that a marriage is an absolute nullity, the duty under the law of this District is to decree such a marriage void. . . .”

The purported marriage involved here being void ab initio “the decree of nullity adds nothing but simply operates as an estoppel against setting up the validity of the marriage in any future controversy. ” Heflinger v. Heflinger, supra. By the decree of annulment in this cause it is merely ascertained and declared that there was no valid marriage between the parties, and, in our opinion, the best interests of society are served and promoted by a legal determination of their status.

For the reasons stated herein the decree of the superior court is affirmed.

Affirmed.

Friend, P. J., and Scanlan, J., concur.


author: Mr. Presiding Justice Denis E. Sullivan

text:
    Concordia Building and Loan Association, Appellant, v. Roy E. Burton and Clara M. Burton, Appellees.
    Gen. No. 39,172.
    Heard in the third division of this court for the first district at the October term, 1936.
    Opinion filed June 30, 1937.
    Rathje, Hinckley, Barnard, Kulp & Tucker, of Chicago, for appellant; Francis E. Hinckley and Joseph J. Sullivan, Jr., of Chicago, of counsel.
    No appearance for appellees.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal brought by plaintiff, Concordia Building and Loan Association, from a decree entered July 16, 1936, in the circuit court dismissing the complaint for want of equity.

Concordia Building and Loan Association, an Illinois corporation, organized on February 2,1889, under the building and loan association laws of Illinois, filed its amended complaint in equity for the purpose of foreclosing a certain mortgage executed by the defendants, Roy E. Burton and Clara M. Burton, his wife.

An answer was filed by the Burtons alleging misrepresentation by the plaintiff as to the terms and conditions of the mortgage and pleading usury.

■ The cause was referred to a master in chancery who recommended a decree sustaining the right of the plaintiff to foreclose the mortgage and finding the amount due as alleged. Objections were filed thereto which were overruled. On a hearing of exceptions before the court, the same were sustained by the chancellor who found the premium charged on the loan to be usurious and entered a decree dismissing the complaint for want of equity. No point is raised by any of the parties as to the pleadings.

The theory of the plaintiff is: First, that parol evidence is inadmissible to vary or alter the express unambiguous provisions of a bond and mortgage executed under seal; Second, that an Illinois Building and Loan Association incorporated prior to July 1, 1919, may by its by-laws, dispense with the offering of its money for bids in open meeting and in lieu thereof provide for a loan of its money at a rate of interest and premium fixed by its by-laws and deduct the premium from the loan in advance. *

The theory of the defendants is: First, that parol evidence is admissible to show the terms intended by the borrowers to govern the repayment of a loan even though the same is contrary to the express provisions of the bond and mortgage executed under seal, securing the loan; Second, that when an Illinois Building and Loan Association has, by its by-laws, dispensed with the offering' of its money for bids in open meeting and in lieu thereof provided' for the loan of its money at a fixed rate of interest and a'fixed premium, unless the rate of interest and premium is' fixed by a resolution of the directors instead óf by the by-laws of the association, a loan is usurious if the interest and premium exceed a charge of seven- per' cent per annum on the loan. ,z

No briefs' were filed in this court by defendants, which necessitates additional work on the part of this court in. an endeavor to ascertain their version of the case.

The evidence before us shows that on December 13, 1924, Roy E. Burton, defendant herein, made application in writing to the Board of Directors of plaintiff association for a loan of $3,800 on 38 shares of the capital stock, 144th series of said association at a premium of $760, payable in advance, and offered as security therefor a first lien by bond and mortgage on certain real estate therein described.

The evidence further shows that on December 19, 1924, said defendants, Roy E. Burton and Clara M. Burton, his wife, became members and stockholders of plaintiff association, and a stock certificate for 38 shares of stock of the 144th series of plaintiff association was issued to them, subject to the payment of 50 cents per month on each share until fully paid, either from earning's or payments thereon, and subject to the charter and by-laws of the association.

The evidence further shows that thereafter the said defendants did execute and deliver to the plaintiff their bond, in which they acknowledged themselves indebted to the plaintiff in the sum of $3,800 for money loaned to defendants under the by-laws of said association on account of such shares of capital stock and bound themselves to pay to the plaintiff the sum of $3,800, together with interest at six per cent per annum in monthly instalments of $19 each, on or before the 14th day of each and every month succeeding the date thereof, and also to pay on the said 14th day of each month succeeding the sum of $19 on the 38 shares of the 144th series, which were on December 19, 1924, transferred and assigned by the said defendants to the said association as collateral security for the indebtedness evidenced by said bond; that said payment of interest and instalments were to be made promptly as they became due, until the sum of $3,800 was fully paid, or until each of the shares of stock aforesaid should have attained the value of $100; and to pay all fines assessed by said association on each of said shares of stock, or any of them, and to pay all taxes and assessments upon the property conveyed by a certain mortgage of even date therewith, given to secure the payment of the said indebtedness, and to keep the buildings on said property insured in accordance with the terms of said mortgage.

The evidence further shows that said bond provides that said association should at the consummation of the loan aforesaid, in accordance with the requirements of the by-laws of said association, withhold a sum equal to 20 per cent of the loan, as a premium, of which there should be retained and charged by said association as earned premium, one thirty-second part of said premium for each quarter year or fraction thereof, beginning December 1,1924, until the entire amount so withheld should have been so retained and charged; and that if, at any time, default should be made in the payment of interest when due, or in the payments due on the said shares of stock, or in the payment of fines due under the by-laws of said association, for the space of sixQmonths after any payment thereof should fall due, the said 38 shares of stock of the 144th series, which were transferred to said association as collateral security as aforesaid, might at any time thereafter be declared forfeited to said association for nonpayment of dues and revert to said association as forfeited stock, and the withdrawal value thereof, at the option of the association might be applied to the satisfaction of said indebtedness, and in such case or cases the whole principal debt aforesaid should, at the option of said association, immediately thereupon become due and payable, and the payment of said principal sum and all interest thereon, and all fines as aforesaid, then due, might be enforced and recovered at once.

The evidence further shows that at the time the application for the loan was made the defendants executed and delivered their certain mortgage, whereby they conveyed and warranted to plaintiff certain premises situated in the county of Cook and State of Illinois, and released and waived all their rights under and by virtue of the Homestead Exemption Laws of the State of Illinois, Ill. State Bar Stats. 1935, ch. 52, ¶¶ 1-12; Jones Ill. Stats. Ann. 107.124-107.135, which mortgage was duly acknowledged by the mortgagors and was thereafter filed for record in the office of the recorder of deeds of Cook county, Illinois on January 6,1925, as Document No. 8729223.

The evidence further shows that at the time of the execution of the said bond and mortgage the defendants paid.to the plaintiff association as a premium therefor, in accordance with the by-laws, the sum of $760.

The evidence further shows that the defendants defaulted in their monthly payments of dues and also defaulted in the monthly instalments of interest, as well as in the payment of fines, general taxes for the years 1931 to 1934, and certain special assessments; that the defaults in the payment of dues, interest, fines and taxes, continued for a period of more than six months immediately preceding October 15, 1935, and still continue.

The evidence further shows that at a regular meeting of the board of directors of the plaintiff association held on October 15, 1935, it was ordered that said 38 shares of the 144th series of the capital stock-'of plaintiff association issued to said defendants heréin¡ be forfeited unto plaintiff by reason of the defaults "hereinbefore mentioned and -that proceedings be instituted upon and against "the securities of said loan according to law.

According to the testimony of one Gereke, secretary of the plaintiff association, the balance due on the loan as of October 15, 1935, was $1,371.58.

The master’s report found that the balance due on loan as of October 15, 1935-, was as follows:

“Balance due on loan as of October. 15,. 1935, as aforesaid..................; .$1,364.58
Interest thereon at 6% per annum from October 15, 1935, to June 27, 1936, date of this report........................ ‘ 57.31
Paid for estimate of taxes................ 1.60
Paid for minutes of foreclosure.......... 51.00
Paid for November 1, 1935, for insurance premium............................ 7.00
Interest thereon at 6% per annum from November 1, 1935, to June 27, 1936.... .28
Paid December 16, 1935, for divers tax . items as aforesaid...................148.14
Interest thereon at 6% per annum from December 16, 1935, to June 27,1936.... 4.71
Paid December 23, 1935 for divers tax items as aforesaid................... 24.89
Interest thereon at 6% per annum from . ; December 23,1935, to June 27, 1936.... .76
. $1,660.27
Attorneys’ Fees.......'................ 200.00
Stenographer’s Fees................... 20.50
Total Amount Due Plaintiff including attorneys’ and stenographer’s fees. .$1,880.77 together with interest thereon,'”

The defense contends, so far as we have been able to ascertain from the answer and the objections filed before the master and other documents, that they are entitled to the credit of $760 retained by the association for premiums with interest thereon, as being usurious and illegal; that by giving defendant the proper credits there would be nothing due plaintiff but would leave a balance due defendants of $61.24.

As before stated there is nothing before us on behalf of defendant, except as we may fathom from the master’s report, showing on what basis these figures were compiled.

When the master’s report came before the court, the chancellor found, as follows:

“1. The evidence fails to disclose that the premium of Seven Hundred and Sixty Dollars ($760), and rate of interest and interest on premium claimed by the plaintiff was fixed by the board of directors as provided in the statute.
“2. That said premium rate of interest, and interest on premium is illegal, usurious and void.
“3. That plaintiff is entitled to recover the amount actually paid defendants, to-wit, Three Thousand and Forty Dollars ($3,040) with interest at five per cent (5%) per annum.
“4. It appears that the defendants have paid the plaintiff Four Thousand Five Hundred and Ninety-eight Dollars ($4,598),. and said sum amounts to more than the sum hereinbefore stated as being the amount the plaintiff is entitled to recover.
“It is therefore ordered adjudged and decreed
“1. That the objections of the defendants herein to the Report of the Master are sustained and the bill of foreclosure herein is dismissed for want of equity.”

When the cause was before the master the defendant offered evidence as to what transpired between the secretary of the company and himself relative to the loan and how it should be paid, which differed from the terms of the bond and mortgage. This evidence offered was properly excluded as parol evidence and will not be heard to vary the terms of a written bond and mortgage under seal. Cantwell v. Welch, 187 Ill. 275.

The next point which the defendant made before the master was that the premium charged by the Concordia Building- and Loan Association was invalid for the reason that, in deducting the premium of $760, it became usurious and illegal.

When a building and loan association, incorporated prior to July 1, 1919, has, by its by-laws, dispensed with the offering of its money for bids in open meeting, and in lieu thereof provided for a loan of its money at a fixed rate of interest and premium, the interest and premium may properly be charged by the association even though the same were fixed by its by-laws in accordance with amendment of July 1, 1891 to the “Homestead Association Act” under which the association was organized.

Chapter 32, par. 78, sec. 11, Starr & Curtis’ Staff, Vol. 1, under which the plaintiff association was incorporated, provides as follows:

‘ ‘ Corporations organized under this Act being of the nature of co-operative associations, therefore no premiums, fines, nor interest on such premiums that may accrue to said corporation, according to the provisions of this Act, shall be deemed usurious and the same may be collected as other debts of like amount may be collected by law in this State, . . .

The “Homestead Association Act” of July 1, 1879, as amended (Hurd’s Ill. Rev. Stat. 1893, ch. 32, par. 85, sec. 8) provides in part as follows:

“Provided, that any such association may, by its bylaws dispense with the offering of its money for bids in open meeting, and in lieu thereof loan its money at a rate of interest and premium fixed by its by-latvs, and either with or without premium, deciding the prefcrence or priority of loans by the priority of the applications for loans of its stockholders.”

In 1933, the Legislature passed a law (Ill. State Bar Stats. 1935, ch. 32, ¶¶ 420 (12), 420 (13), sections 1 and 2; Jones Ill. Stats. Ann. 139.112, 139.113) validating* all loans which had been made prior to that time, in the following language:

“Section 1. In any case in which a mutual building, loan and homestead association organized under the laws of this State, and now doing business in this State, has heretofore and since July 1, 1919, made a loan of its money to a borrowing member or members thereof, and at the time of the mailing of such loan such association had by its by-laws dispensed with the offering of its money for bids in open meeting, and in lieu thereof provided for the loan of its money at a rate of interest, or interest and premium, as fixed by its by-laws, deciding the preference or priority of the right to a loan by the priority of the approved applications therefor of its shareholders, although the statute provides for the rate of interest, or interest and premium to be fixed by the directors, such loan, if otherwise legally made is hereby validated and legalized.
‘' Section 2. Because the ’ validity and legality of large numbers of loans made by many mutual building, loan and homestead associations organized under the laws of this State, and now doing business in this State, which loans were made under by-laws dispensing with competitive bidding in open meeting, is now attacked in pending litigation, on the ground that the rate of interest, or interest and premium, was fixed by the by-laws instead of by the directors, and a great number of other loans by many such associations are subject to similar attack, an emergency exists, and this Act shall take effect upon its passage.”

We do not believe from the evidence in this case and the law applicable thereto, that the court was justified in arriving at its conclusions and should not have sustained the exceptions to the master’s report. The loan was made by the association to one of the members on his application and, so far as we are able to determine, was in conformity with the law and the by-laws of the association of which he was a member. No evidence was offered to the effect that he was imposed upon or that he was in any way overreached. The evidence shows that he was an intelligent man who understood fully the contract which he made.

For the reasons herein set forth the decree of the circuit court is hereby reversed and the cause remanded with directions to enter a decree as recommended by the master and in harmony with the views expressed in this opinion.

Decree reversed' and cause remanded with directions.

Hebel and Hall, JJ., concur.


text:
    Jennie Schultz, Appellant, v. Royal Neighbors of America, Appellee.
    Gen. No. 39,218.
    Heard in the third division of this court for the first district at the October, term, 1936.
    Opinion filed June 30, 1937.
    Rehearing denied July 12, 1937.

      Charles J. Trainor, of Chicago, for appellant.
    Fulton, Fulton & Sheen, for appellee.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

A judgment non obstante veredicto was entered in the municipal court of Chicago in favor of defendant, Boyal Neighbors of America, a corporation, with costs against The plaintiff, Jennie Schultz, from which judgment plaintiff appeals. A jury had returned a verdict against' the defendant for $1,050, but the trial judge set the same aside and entered a judgment notwithstanding.

The evidence shows that Jennie Schultz, the plaintiff, sued the defendant, Boyal Neighbors of America, a corporation, on a policy of insurance which was payable to her in. the event of the death of her son, John Schultz, while he was a member of the defendant insurance society in good standing; that John Schultz died on April 26, 1935, and that all premiums which were due and payable on said certificate were paid up to the date of the death of the insured; that plaintiff made a demand for the amount as set forth in the benefit certificate due her as beneficiary, but payment was refused by defendant..

There appears to be only one controverted question of fact, as appears in defendant’s affidavit of defense, which was that,.the potential cause of action on said benefit .certificate, upon, which, this ,sjjit was based, became null,and void because the deaj|h óf John Schultz, the insured,, occurred: while he was^ violating the law. Defendant alleges that the. insured was shot while attempting to escape after having committed, a burglary. ■Tinder .the terms of the policy, the death having occurred ,at. the time, of the alleged crirpe it.would preclude" recovery.

Plaintiff contends that the burden rested upon the defendant to establish such defense beyond a reasonable doubt and that the evidence of plaintiff was sufficient to show that the insured was not engaged in any violation of the law, as a consequence of which he was killed.

Defendant contends that it was required only to establish its defense — that the death of deceased occurred in consequence of a violation of the laws of the State of Illinois — by a preponderance of the evidence, and that the court improperly instructed the jury that it was required to establish that defense beyond reasonable doubt.

Testimony was produced on both sides as to whether or not John Schultz, the insured, was killed whilst engaged in or as the result of the burglarizing of a store. At the conclusion of the plaintiff’s evidence, the defendant asked that the jury be instructed to find for the defendant and again at the conclusion of all the evidence a similar motion was made. Both of these motions were denied by the court and the cause was submitted to the jury who returned a-verdict as heretofore stated.

We think the court was in error in requiring the defendant to prove beyond a reasonable doubt that the insured was involved in the crime as charged in their answer. There is a contrariety of opinion in the various States as to whether or not when a crime is alleged in the pleadings, such allegation must be proven beyond a reasonable doubt. The rule in this State appears to be that unless the crime is charged against a party to the suit, such requirement of proof is not necessary and proof by a preponderance of the evidence will be sufficient.

In Foster v. Graf, 287 Ill. 559, the court at page 563 said: “It has been held by this court that where in a civil suit, under the pleadings, it becomes necessary to the maintenance of the plaintiff’s cause of action or the defendant’s defense to show that the opposite party has been guilty of a criminal offense, such offense must be proven beyond a reasonable doubt. (Grimes v. Hilliary, 150 Ill. 141.) It has never been held by this court, so far as we are aware, that a crime charged against a stranger to the suit must be proved beyond a reasonable doubt. In civil actions, unless the issues involve the commission of crime by some of the parties thereto, the application of such a rule is unauthorized by the law of evidence. (Seybolt v. New York, Lake Erie and Western Railway Co., 47 Am. Rep. 75.) There is no good reason for holding that the criminal charge against a stranger to the suit must be proved beyond a reasonable doubt. He is in no way bound by the judgment in such a case.”

In the instant case a criminal charge was made against the insured who, being dead, of course was not a party to the suit. The parties to the suit being the insurance company on the one hand and the plaintiff as beneficiary named in the insurance policy on the other, we think the proper rule governing such proof is that the allegations be established by a preponderance of the evidence and not beyond a reasonable doubt.

Counsel for defendant in defending the action of the court in denying the motions to instruct the jury at the close of plaintiff’s evidence and again at the close of defendant’s evidence, says that Rule 175 of the municipal court rules compels the court to refrain from passing upon the motions, but that the court must wait until after the verdict of the jury. However, the court did not postpone passing upon the said motions but denied them promptly, saying at the time that the record shows there was sufficient evidence to go to the jury. It is quite apparent the court believed there was sufficient evidence to be passed upon by the jury.

We do not believe the errors committed by the court in the instructions were cured by entering judgment non obstante veredicto.

As was said in McNeill v. Harrison & Sons, Inc., 286 Ill. App. 120, at page 129:

“In the instant case the evidence was conflicting and the court should not have substituted its judgment as to the weight of the evidence in place of the verdict of the jury.” , _

_ Inasmuch as this case must be retried, it is unnecessary to comment on the other points made in thé briefs.

For the reasons herein given the judgment of the municipal court is reversed and the cause Is remanded for a new trial. . ...

Judgment reversed and cause remaotded.

IIebel and Hall, JJ., concur,.


text:
    Continental Illinois National Bank and Trust Company of Chicago, Appellee, v. James V. Cunningham et al., Defendants. Appeal of James V. Cunningham et al., Appellants.
    Gen. No. 39,234.

      Heard in the third division of this court for the first district at the December term, 1936.
    Opinion filed June 30, 1937.
    Behearing denied July 12, 1937.
    Benjamin F. Fohrman, of Chicago, for appellants; Edward McTiernan, of Chicago, of counsel.
    Ryan, Condon & Livingston, of Chicago, for appellee.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

A complaint to foreclose a trust deed was filed by the executor of the estate of Joanna W. Kenny, deceased, pursuant to an order entered in the probate court of Cook county.

The trust deed and the note which it secured were executed by James V. Cunningham and were inventoried as assets of said estate. The owner of record of the property secured by said trust deed was Daniel L. Madden, an attorney. His wife, Helen H. Madden, was a niece of Joanna W. Kenny,- deceased.

The-said Daniel L. Madden and James V. Cunningham were hotli-lawyers and shared the same offices and Madden-was the attorney for Joanna-W'. Kenny during-her lifetime. -

The bill of complaint alleged that Cunningham was the owner of record of the property and had executed the trust deed arid note; that the trust deed and'note were made on May 25, 1920, ■ the note being in the principal amount of $4,500; that payments' of $2,000 had been made on the principal and that interest had been paid up to July 1, 1929; that no payments of principal and interest had been made after July 1, 1929, and that there was due and owing at the time the bill of complaint was filed the sum of $2,500 plus interest at the rate of seven per cent per annum from July 1, 1929.

The trust deed sought to be foreclosed was dated May 25, 1920. On the same day a quitclaim deed for the same property from the mortgagor, James V. Cunningham to Joanna W. Kenny, the owner of the mortgage, was executed and was recorded on July 25, 1921.

Subsequently Joanna W. Kenny conveyed said property to Daniel L. Madden by a quitclaim deed dated December 7,1921, and recorded November 2,1928. The note secured by the trust deed shows payments of principal and interest on four different dates, namely: May 25, 1925, August 13, 1926, May 31, 1927, and July 1,1929.

The answer filed on behalf of the defendants, Daniel L. Madden and Helen H. Madden, admits the execution of the trust deed and note by Cunningham, but alleges that on December 7,1921, Daniel L. Madden purchased the premises sought to be foreclosed from Joanna W. Kenny, and that said Joanna W. Kenny, in connection with said purchase, executed a quitclaim deed to Daniel L. Madden; that at the time of the execution of said quitclaim deed to said Daniel L. Madden and at the time of the sale of said premises, “Joanna W. Kenny was the legal holder and owner of said mortgage and trust deed and notes secured thereby,” herein sought to be foreclosed.

The answer further alleges that it was the intention of Joanna W. Kenny at the time of said conveyance to Daniel L. Madden on May 25,1921, to release and quitclaim all of her interest by virtue of said trust deed herein sought to be foreclosed and that through inadvertence and mistake the said trust deed was not released of record although it was the intention of the parties to do so; that all moneys due to Joanna W. Kenny have been paid in full and there were no moneys due her at the time of her death.

The theory of the plaintiff is that the trust deed and note executed by James V. Cunningham is a valid and binding obligation and a lien upon the real estate descibed in the trust deed for the balance reported by the master in chancery as remaining unpaid and due from the defendants and fixed by the decree; that the quitclaim deed from James V. Cunningham dated May 25, 1920, to said Joanna W. Kenny, conveyed the real estate involved herein to said Joanna W. Kenny, as additional security, and that the incumbrance evidenced by said principal note was not merged in the title then held by Joanna W. Kenny and constitutes a valid lien upon the real estate described in said trust deed.

The theory of the defendants is that by the execution of the quitclaim deed from James V. Cunningham to Joanna W. Kenny, dated May 25, 1920, the trust deed and the principal note which purported to be secured by said trust deed and which were held by Joanna W. Kenny, were canceled as a matter of law by the merger of the two estates and that the indebtedness evidenced by said documents was merged in the title to Joanna W. Kenny and extinguished; that when Joanna W. Kenny executed a quitclaim deed on December 7,1921, to Daniel L. Madden conveying said real estate, she conveyed same free and clear of the incumbrance evidenced by said trust deed and said principal note; that the statute of limitations is a bar to any claim arising on said principal note and on said trust deed.

The evidence shows that both Madden and Cunningham are lawyers and for a time were office associates. There is no evidence as to where the property is located or what it consists of and at the time a deed was made from Joanna W. Kenny to Cunningham that he ever took possession of the premises, occupied it or collected the rents therefrom.' When the note for $4,500 was made, payments with interest were' madé thereon from time to time by Madden. Apparently Cunningham had nothing much to do with the transaction aside from signing his name to the note and trust deed, payments to Mrs. Kenny for principal and interest being made by check from Madden which payments covered a period of several years. There is no evidence showing what was said by the parties at the time the quitclaim deed was made on May 25, 1920 from James V". Cunningham to J. W. Kenny, indicating the intent or purpose of making the conveyance. It is claimed by the plaintiff that the conveyance was made as additional security for the note of $4,500 and by the defendants that it was a merger of the two estates.

Defendant Madden testified that when he bought the property from Mrs. Kenny he gave her his own note in payment of the fee title and when he made these payments which Mrs. Kenny had indorsed on the Cunningham note that he thought she would indorse them upon his note which he had given in payment of the fee. This note was not produced at the hearing. He further testified that he thought the trust deed had been released or canceled by the operation of conveying the fee title by Cuningham by quitclaim together with the trust deed to Mrs. Kenny. It is not made clear as to just what was the purpose of the transaction, except the claim of Madden that Cunningham was able to purchase the property cheaper than he could. No evidence is submitted as to any arrangements that may have been made or as to any understanding that may have been had between the parties with relation to the so-called merger. The conveyance of the fee to Cunningham and the giving of a trust deed and a quitclaim deed from Cunningham to Mrs. Kenny was a contemporaneous transaction.

Counsel for Madden contends that the trust deed was released, but in the answer filed on behalf of Madden and his wife, it is admitted that Mrs. Kenny was the owner and holder of the mortgage on December 7, 1921, which was after the date of the execution pf the trust deed"; Evidence was introduced showing that Madden admitted that the mortgage was still his obligation after that date.

It further appears from the testimony of Randolph W. Thornton, attorney for Clara W. Morris, that prior to the death of Mrs. Kenny he had a number of conversations with Daniel L. Madden with reference to exchanging bonds of the Home Owners ’ Loan Corporation for the mortgage which Madden said was in the estate of Joanna W. Kenny, incompetent. When Madden made application for a loan on his property to the Home, Owners Loan Corporation on or about August 1, 1933, he stated that the purpose of making the loan “was to pay off my note that I owed Mrs. Kenny. ’ ’ The original application made to the Home Owners’ Loan Corporation was for $6,000 and was dated August 5, 1933. In that application ■ he stated that the total incumbrance or lien on the property was a $4,500 first mortgage held by the conservatrix of an insane estate. In a letter which he wrote to the Home Owners ’ Loan Corporation he informed said corporation that Cause No. 35 C 14081 was pending in the circuit court, which case was the suit filed to foreclose the trust deed and note. ' ■

Oh November 21,1927, Madden wrote a letter to Mrs. Joanna Kenny, iii which he stated: “This will leave a balance due on my mortgage note of $2,500.00. ’ ’ In another letter dated July 21, 1929, he wrote to Mrs. Kenny: “A balance due on the mortgage of $2,000.00. ’ ’ And again in a letter dated December 11,1929, Madden wrote to Mrs. Kenny, “$60.00 in interest on my mortgage note.”

The merging of two estates represented by a quitclaim and a trust deed is largely a matter of intention. As was said in the case of Moffet v. Farwell, 222 Ill. 543: “Whether a merger results from the uniting of a gre’ater and less estate in the same person depends upon what will best subserve the purposes of justice and the intention of the parties, and in determining the question the interests and intention of the parties are the controlling considerations.

“ . . . Acceptance, by the mortgagee, of a quit-claim deed from the mortgagor and cancellation and delivery of the note and mortgage to the mortgagor, there being no release of the same, do not show a merger of the estates in the quit-claim grantee, there being no other evidence of an intention on his part to release all claims under the mortgage and rely solely on the deed.

“. . .In the absence of evidence to the contrary the law presumes that a party intended to keep his mortgage alive, when such course was essential to his protection against an intervening title or for other purposes of security, even though, through ignorance of the intervening title or inadvertence, the mortgage has been discharged and the notes canceled. ’ ’

In the instant case the notes were not canceled, the mortgage was not delivered and, as before stated, there is no controlling evidence showing any intention On the part of Mrs. Kenny to cancel the said notes and release her security. We cannot discover from the evidence before us just what was the purpose of the transaction, other than we have already stated, the net result of which was that the title to the property was conveyed to Cunningham and a trust deed was executed by Cunningham and notes were signed for $4,500, and then the property was conveyed back from Cunningham by quitclaim deed to Mrs. Kenny. Nothing was said as to what should become of the notes which Cunningham signed or the obligation which he incurred.

In the case of Campbell v. Carter, 14 Ill. 286, at page 290, the court said: “The intention is the controlling consideration, where it has been made known, or can be inferred from the acts and conduct of the party. And the court will look into all of the circumstances of the case, to ascertain his real intention. If it appears, that he intended to discharge the incumbrance, and rely exclusively upon his newly acquired title, the incumbrance is regarded as extinguished, and cannot afterwards be set up to strengthen and support that title. If no intention has been manifested, equity will consider the incumbrance as subsisting, or extinguished, as may be most conducive to the interests of the party.”

In our consideration of this cause we are not aided by the testimony of either Cunningham or Mrs. Kenny as to the real intention of the parties- — Cunningham not having appeared to testify and Mrs. Kenny having -died. Therefore we must accept the intention of the parties as having been largely expressed by the documents offered in evidence.

We cannot find that any merger of estates was intended in the transactions or that there was a release of liability as to Cunningham on the notes. We think the evidence show's that Madden took the conveyance from Mrs. Kenny subject to the trust deed. We also think the evidence shows that the payment by Madden upon the notes which were signed by Cunningham was a payment by the real party in interest and should be credited upon the notes. This note with the indorsement thereon was found among the assets of the deceased and, of course, it became a duty of the plaintiff to collect the same.

On the question of the statute of limitations, it is shown that no such defense was made in the pleadings in the trial court and, therefore, it cannot now be raised here.

From a review of the evidence wé áre satisfied that the master in his report and the court in its decree were correct in the decision reached. Therefore, for' the reasons herein stated, the decree of the circuit court is hereby affirmed.

Decree affirmed.

Hebel and Hall, JJ., concur.


author: Mr. Justice Hall

text:
    Paul Coghlan et al., Appellees, v. Federal Life Insurance Company, Appellant.
    Gen. No. 39,004.
    Heard in the third division of this court for the first district at the October term, 1936.
    Opinion filed June 30, 1937.
    Eckert & Peterson, of Chicago, for appellant; Tom Leeming, of Chicago, of counsel.
    Burry, Johnstone, Peters & Dixon, of Chicago, for appellees; John C. Trussell, of Chicago, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.

By this appeal, defendant seeks the reversal of a judgment against it entered in the superior court of Cook county for the sum of $1,980 and costs of suit.

The action is predicated upon an accident policy issued by the defendant company to Victoria M. Coghlan, who met her death by monoxide gas poison. The cause was submitted to a jury. The insurance policy, - among other things, provides that:

“The company will pay for loss of life — $1,500— sustained by the wrecking or disablement of any omnibus or taxicab owned and operated by a private person, or any vehicle or car operated by private carrier or private person in or on which the insured is riding.
“This part covers persons riding in or driving buses, privately owned taxicabs, trucks, pleasure automobiles, motorcycles and horse-drawn vehicles.”

The record indicates that between 4 and 5 o’clock of the afternoon of February 21, 1934, Paul Coghlan, son of the insured, came to his home, found the garage doors of a garage at the rear of his home, open, with his mother, the insured, seated in the car in the garage, and that she was dead. He testified to the effect that he summoned a doctor, who stated that his mother had been dead for an hour or so; that at the time he found his mother, she was fully clothed, and that her outside clothing consisted of a cloth coat with a fur collar, that she wore overshoes and a hat, and had her purse with her; that the ignition was on in the car, and he stated that “apparently it had been driven before”; that the doors of the car, as well as its windows, were closed at the time he found her, but that the engine was not running at that time. The witness stated that it would be impossible for him to say whether or not his mother was getting ready to go out, or whether she was just. coming in, but that she was fully dressed and ready to drive the car; that he had previously attempted to enter the house, but that he found the doors locked, but that the two doors of the garage were open, and that the temperature at that time was above freezing.

A witness produced by plaintiffs testified that after the death of Mrs. Coghlan, the witness took the car out, drove it and found a gas leakage; that there was a heater on the outside of the muffler; that the muffler of the car was rusted and broken, with an opening in it; that the heater of the car inclosed the entire muffler, and that the condition he found made it easy for gas to get into the car. He further stated that he examined the manifold gaskets, and found that they leaked, and that one of the valves was burned.

Another witness for plantiffs testified that prior to the accident he had charge of the maintenance of the car for the decedent, and that he had examined it a short time before her death; that he found a condition which indicated that there was an exhaust leakage, and that he noticed a unusual amount of fumes coming through the heater of the car and the floor boards thereof; that he advised the decedent to have the car opened up and the valves ground and the exhaust taken care of; that at that time he made an attempt to close the door of the heater to keep the fumes from coming into the car, but because of the rust that had gathered, it could not be closed, and that the witness had to leave it open; that the mechanical situation in and about the muffler and the radiator was such that any fumes escaping would be carried back through an opening in the floor boards and into the car.

There seems to be no question as to the cause of the woman’s death. Defendant offered no evidence. At the close of plaintiffs’ case, both plaintiffs and defendant moved the court for a directed verdict, The court directed a verdict for the plaintiffs, upon which verdict the judgment appealed from was entered.

Defendant insists that under the insurance policy, which provides indemnity for death resulting from the “wrecking or disablement of a passenger vehicle . . . in or on which the insured is riding, ’ ’ does not justify the verdict and judgment in this case. It is insisted that the facts do not show that the insured was either “riding in or driving’’ the car at the time of the occurrence. In its brief defendant states that it is conceded that the engine of the car had been running, and concedes that the manner in which decedent was dressed, together with the fact that the house was locked and that her purse was beside her, is evidence of the fact that she had either been riding in the car, or intended to ride in it.

No Illinois case is cited which is at all in point. In Johnson v. Federal Life Ins. Co., 60 N. D. 397, 234 N. W. 661, the insured’s car had been stalled in a mudhole, and two of the occupants were found dead, with the engine still running, and the point was made that it was not shown that the people were riding in the car at the time, and that under a similar provision in an insurance policy, recovery could not be had. In affirming the judgment based on the policy, the court said:

“It will be noted that the contentions of the appellant rest upon a close literal construction of the policy. It seems to be assumed that one cannot be riding in a car unless the car is in motion, and that the instant it stops he ceases to ride. ... To exclude the inhalation of carbon monoxide gas during a period when the car is stalled in a mudhole on the theory that motion had ceased would be not merely to adopt a narrow meaning of the language of the contract, but to actually deprive the words used of a portion of their ordinary meaning. The occupant of a car while it is stalled in a mudhole, ... is still riding in the car in quite the same sense a,s a passenger upon a steamship at anchor may be riding the waves. . . . ‘It is true that the automobile that appellee was driving or operating at the time had ceased to move, when he undertook to go therefrom, but the terms of .the policy did not limit appellee’s liability to an injury only when the automobile was in actual motion. The policy is to be construed more strongly against appellant, and, had it been the intention to limit the benefit to the insured only while he was moving in his automobile, it must be presumed that it would have been, so stated in. the contract.’” .

We are of the opinion that the construction defendant puts upon the policy and its definition of the word “riding” are entirely too narrow. Under the defendant’s construction of this contract, if the driver of an automobile came to a stop at a traffic light, and while standing there was injured, there could be no recovery. In this case, as already, stated, it is agreed that the decedent had either just started or just finished a journey. The ignition of the car. was on, and there is every indication — including the fact that the evidence shows that she died of monoxide gas poison — that the motor of the car had been running, and that the running of the motor caused the formation of the gas which caused her death. It is in evidence that there was a “disablement” in the car’s mechanism which caused the gas to enter the body of the car.

The judgment is affirmed.

. Affirmed.

Denis E. Sullivan, P. J., and Hebel, J., concur.