author: Baker, J.

text:
    David A. Barry et al. v. Alexander E. Guild, Jr.

      Mortgages — Trust Deed — Foreclosure—Defenses—Covenants—Breaches — Estoppel—dioses in Action, Fot Assignable — Cross-bill—Solicitor's Fee.

    1. In proceedings to foreclose a mortgage brought by an assignee before maturity of the notes secured thereby, the mortgagor may interpose any defense of which he might have availed himself as against the payee of the notes.
    2. A mortgagor in possession can not defend a bill to foreclose a mortgage given to secure purchase money on the ground of defects in the title of his grantor. If such title is defective, he must rely for relief on the covenants in the deed to himself, or such other contract as he may have with the grantor.
    8. To constitute a breach of either the covenant of warranty or that for quiet enjoyment there must be a union of ouster or eviction and lawful and paramount title. Otherwise there is no right of action on the covenants or ground for relief in a court of equity, in proceedings to foreclose a mortgage given to secure purchase money.
    4. The covenants of warranty and for quiet enjoyment when broken by actual ouster or eviction under paramount title, no longer run with the land, and a subsequent grantee has no right of action thereon.

      5. In the case presented, it is held: That, as between the parties, the original deed in question must be taken to be an absolute conveyance; that tlie breaches of the covenants therein, if any, were choses in action which did not pass to the defendant by subsequent conveyances; that the evidence does not show a.n adverse possession under a paramount title; and that solicitor’s fees were properly allowed.
    [Opinion filed May 28, 1888.]
    Appeal from the Circuit Court of Du Page County; the lion. C. W. Uptoh", Judge, presiding.
    Hr. Ellis S. Ches trough, for appellants.
    Lack or failure of title to land, especially where the vendee has been evicted, has voluntarily yielded possession to the paramount title, or has never had possession, is failure of consideration and a good defense against purchase money notes given for such land. Gregory v. Scott, 4 Scam. 392; Davis v. McVickars, 11 Ill., 327; Slack v. McLagan, 15 Ill. 243.
    Aside from the fact that Guild, as the trustee, the agent of both parties, could get no better title to the notes than his principal, the doctrine is firmly established in this State that the assignee of notes secured by mortgage, on suit to foreclose,, is subject to any defense that may be maintained against the payee. Olds v. Cummings, 31 Ill. 188; Smith v. Newton, 38 Ill. 230; Weaver v. Wilson, 48 Ill. 125; Towner v. McClelland, 110 Ill. 542; Shippen v. Whittier, 117 Ill. 282.
    Atkinson can he hold (and hence purchase money notes to him defended) on his warranty to Guild, by any subsequent grantee, however remote. Wead v. Larkin, 54 Ill. 489; Richard v. Bent, 59 Ill. 38; Rawle on Covenants for Title, 5th Edition, Sec. 402.
    And even a breach of covenant of seizin can be relieved against on suit to foreclose. Latham v. McCann, 2 Neb. 276; Rice v. Goddard, 14 Pick. 293.
    And the reason for this rule is much stronger in the case at bar, as all the conveyances in the chain up to Barry are in equity conveyances by Atkinson, and his warranty to Guild was passed to the defendant Barry by Atkinson’s direction.
    It makes no difference that Atkinson may have been honestly mistaken as to the quantity of land if the mistake was mutual. Champlin v. Laytin, 6 Paige, 189; same case affirmed, 18 Wend. 407; Voorhees v. De Meyer, 3 Sandf. Ch. 614.
    Mr. James Lloyd, for appellee.
    A grantor who conveys with warranty is concluded by his deed, and if he has not the land he warrants, it is his duty to acquire same to answer his covenants. Jones v. King, 25 Ill. 383, and cases cited; Andrew v. Coleman, 82 Ill. 26; White v. Patten, 24 Ill. 234; Wynkoop v. Corning et al., 21 Ill. 484; Stewart v. Metcalf, 68 Ill. 109.
    A party having mortgaged property is not permitted to deny his own title, but is concluded by his mortgage; his warranty estops him. R. & M. R. R. Co. v. F. L. & T. Co., 49 Ill. 331, 344; Wills v. Somers, 4 Ill. App. 297; Herman on Estoppel, p. 8, Sec. 3; Hall v. Mut. Fire Ins. Co., 32 N. H. 297; Cabriska v. Columbus & C. N. R. Co., 23 How. 391; Jones on Mortgages, Sec. 682.
    No party claiming title under a deed, however remotely, can be permitted to deny any fact recited in the deed under which he claims. Byrne v. Morehouse, 22 Ill. 603; Richards v. Melerine, 76 Ill. 453.
    Where a fee simple estate is granted by deed, title of which defendant covenants to warrant and defend, he is estopped to deny the solemn fact so stated in his deed. Jones v. King, 25 Ill. 383.
    On bill to foreclose mortgages, title can not be questioned in defense; this can only be investigated at law; if he took by virtue of his mortgage any estate whatever, which is still subsisting, he is entitled to a decree, and the court will not inquire what interest he has in the mortgaged estate, or whether ‘he has any interest at all in some part of it. Jones on Mortgages, p. 1482, Sec. 1482.
    The recitals in a recorded deed in the chain of title are such notice to a purchaser as would put him on inquiry as to the nature and extent of the matters referred to in the recitals C., R. I. & P. R. R. Co. v. Kennedy, 70 Ill. 350; Rupert v. Mack, 15 Ill. 541; McConnell v. Reid, 4 Scam. 117; Merrick v. Wallace, 19 Ill. 486; Monson v. Kelly, 22 Ill. 610; Morris v. Hoyle, 37 Ill. 150.
    Where there is enough to put a prudent man upon inquiry in respect to the title to land, he will be chargeable with all the facts he might have learned by the exercise of reasonabve diligence in making inquiry as to the matters to which his attention has been directed. Citizens, etc., Bank v. Dayton, 116 Ill. 257; Crawford v. C., B. & Q. R. R. Co., 112 Ill. 314; White v. Kibby, 42 Ill. 510; Harris v. McIntyre et al., 118 Ill. 275.
    YVhere recitals are contained in a deed in a party’s chain of title, he will he presumed to have read them. Marks v. Gartside, 16 Ill. App. 177; Kibby v. White, 42 Ill. 510; C., R. I. & P. R. R. Co. v. Kennedy, 70 Ill. 350.
   Baker, J.

This is a bill in chancery, tiled in the Du Page Circuit Court by Alexander E. Guild, Jr., against David A. Barry and others, for the purpose of foreclosing a trust deed mortgage, given by said Barry to secure unpaid purchase money. The defense interposed by the defendants is that the notes described in the mortgage are purchase money notes given to one John Atkinson as part of the purchase money for the lands on which they are secured; that said Atkinson was the equitable owner of the premises, and that the title to twenty acres of the land had failed; that said twenty acres had been conveyed to one Charles Fitzsimmons long before the conveyance to Barry, and that Fitzsimmons was at that time and still is in possession of said twenty acres, and that defendants were at that time unaware of either such purchase or possession; and the defendants ask that a just and proportional deduction be made for the portion of the land to which the title has failed.

Martin Saubcr and Charles Frieliauf were the owners in fee of two tracts of land in township 37 north, range 11, east of the third principal meridian, in Du Page county, Illinois, to wit: Lot number 2 in Witt’s subdivision of west half of northwest quarter, section 14, containing forty-eight acres, more or less, and the fraction in south half of section 15, containing ninety-six acres, more or less; and this last mentioned tract is situate on Sag Island, in theDesplaines river.

On the 10th day of August, 1868, Sauber and Frieliauf, by their warranty deed of that date, conveyed, or attempted to convey, twenty acres of this island tract of land to Charles Fitzsimmons, and on the 8th day of May, 1875, they executed to him a quit claim deed for the purpose of correcting a supposed error in the description of the twenty acres intended to be conveyed by the former deed, and the first of these deeds was filed for record on the 15tli of April, 1870, and the other on the 25th of May, 1875. Sauber and Frieliauf, by deed bearing date March 27, 1869, and recorded April 3, 1869, conveyed to John Atkinson said lot' 2, in "Witt's subdivision, and also the fraction in section 15, and said deed contained their reservation, “excepting twenty-five acres heretofore conveyed by the said Sauber and Frieliauf.” The year before Atkinson purchased he knew of the sale to Fitzsimmons, and at the time he was buying Sauber showed him the line and the stakes of the Fitzsimmons tract. On the 25tli of April, 1870, Atkinson conveyed an undivided half of the island tract to Edwin Walker, and on the 23d of January, 1881, one John H. Lomax received from the United States Marshal for the Borthern District of Illinois a deed for said Walker’s interest in the premises, it having been sold under an execution. On the 21st of June, 1884, said Lomax procured a tax title to the whole of said tract of land.

On the 26tli of June, 1884, Atkinson executed to Alexander E. Guild, Jr., a deed with full covenants of seizin of a right to convey, for quiet enjoyment, against incumbrances, and of warranty for the undivided one-lialf of said lot number 2^ in Witt’s subdivision, and for the undivided one-lialf of the fraction in south half of section 15, and on January 30, 1885, said Guild executed to George A. Gindele a special warranty deed against his own acts, for tiie same property. After the execution and delivery of those two deeds, Atkinson continued to be the real and equitable owner of the property conveyed. The object of the conveyances was to secure the payment by Gindele to Guild of §150, for the benefit of Atkinson, and to enable Atkinson to raise money With which to fight the tax title of Lomax. The arrangement was that Gindele should have the one-fonrth of the one-half interest of Atkinson for clearing the title of the tax deeds. The proposed litigation was commenced and prosecuted to a successful conclusion. See Lomax v. Gindele, 117 Ill. 527.

Afterward Atkinson sold his three-fourths interest in the undivided one-half of the property to the appellant Barry for §4,500, and on May 6, 1886, Gihdele executed a deed, with covenants against his own acts, for an undivided three-fourths of an undivided one-lialf of lot 2 above mentioned, and for an undivided three-fourths of an undivided half of the fraction in the south one-lialf of section 15, in T. 37 N., 11, E. of the third principal meridian, containing ninety-six acres. Said - Barry executed, and, on said 6th day of May, acknowledged and delivered the trust deed mortgage here in suit. It conveyed and warranted all the property described in the deed from Gindele to him, Barry, in trust to Alexander E. Guild, to secure the payment of $4,000 purchase money included in promissory notes given by Barry to Atkinson, and interest thereon. These notes were afterward assigned before maturity by said Atkinson to said Guild, and the present bill to foreclose was, after default by Barry, exhibited, by Guild.

It is the firmly established doctrinepn this State that when the assignee, before maturity of notes secured by a mortgage, comes into a court of chancery to foreclose the mortgage, he holds such mortgage subject to all the infirmities to which' it would have been liable in the hands of the assignor, and that the mortgagor may avail himself of any defense he could have interposed as against the payee of the notes, and this rule is based upon the ground the mortgage is not at law an assignable instrument. See Olds v. Cummings, 31 Ill. 188, and numerous subsequent cases.

Atkinson having conveyed the lands to Guild by a deed which was absolute upon its face, and having procured the title to be conveyed' through said deed and the subsequent deeds from Guild and from Gindele to Barry, who was pur chaser for a valuable consideration of the equitable interes of Atkinson in the lands, would now be estopped from claiming that such supposed deed was absolute under a secret agreement shown only by extrinsic evidence, and of which Barry had no notice — merely a mortgage to secure the payment of $150 to Guild. As between Barry, the purchaser for value without notice, and Atkinson, or his assignee, claiming the beneiit of the mortgage, the deed from Atkinson must be regarded to be what it purported to be; that is, an absolute deed to Guild with covenants. Barry should have the full beneiit of the contract which he intended to, and apparently did make, and which the conduct of Atkinson, Guild and Gindele justified him in believing he was making. On the other hand, Atkinson and Guild should only be held for such kind and degree of liability as the contracts they assumed to make would render them responsible for. The covenants of seizin, of good right to convey, and against incumbrances, contained in the deed to Guild, were personal covenants not running with the land, or passing to Guild’s grantees, and if there have been breaches of these covenants, then such breaches occurred as soon as the deed was executed and delivered, and vested in Guild dioses in action which were not assignable and did not pass to Gindele or to Barry. The covenants in the deed for quiet enjoyment and of warranty ran with the land, and passed to Barry by the deed from Gindele.

It is insisted by appellee that the deeds in the chain from Atkinson to Barry only purported to convoy an undivided interest in ninety-six acres of land, and that the evidence shows that the fractional tract in section 15 contains that number of acres, after making deduction for the twenty acres conveyed to Fitzsimmons. The position assumed is untenable, both in respect to matter of fact and matter of law. There is no competent evidence either to show7 or tend to show that ninety-six acres remain after deducting the twenty acres; the evidence in that behalf is mere hearsay and surmise. The presumption of fact would be, in the absence of proof to the contrary, that as the tract contained ninety-six acres according to the government survey, it, in fact, still contains that number of acres, and that if the title has failed to twenty acres, then only seventy-six acres were conveyed to Barry. But the statement in the deeds, “ containing ninety-six aeres, more or less,” is of comparatively slight importance. That which Barry contracted for, and the deeds purported to convoy to him, was an undivided three-fourths interest .of an undivided one-half interest in the fraction in the south half of section 15. That which the deeds demanded was an undivided interest in the legal subdivision of land named in the second call of the deeds, be the actual number of acres more or less. The purchaser took the risk of a mistake in the government survey that would make the actual quantity of land less, also of loss from the island by erosion; and he wás entitled to the benefit, ifAuy, not only of a mistake in the original survey that might increase the actual quantity, but of any gain by accretions.

Upon a bill to foreclose a mortgage given for purchase money, a mortgagor in possession can not defend on the ground of defects in the title of his vendor. He can not retain the land under a title which, by force of the statute of limitations, may ripen into a good title, and at the same time refuse to pay for the"land. The doctrine is that where there has been no fraud and no eviction "under paramount title, the vendee, or a party in possession under him, can not controvert the title of the vepdor; that in such cases the vendee and those claiming under him must rely for relief on the covenants in the deed of the vendor, or other contract he may have; and that the courts will not substitute for the contract of the parties one which they did not make. Beebe v. Swartwout, 3 Gilm. 162; Smith v. Newton, 38 Ill. 230 ; Weaver v. Wilson, 48 Ill. 125; Peters v. Bowman, 98 U. S. 56; Latham v. McCann, 2 Neb. 276.

It is suggested by appellee in his brief that aprpellants filed in the court below no cross-bill asking for affirmative relief. In Beebe v. Swartwout a cross-bill was filed; but in Weaver v. Wilson, where there was a condition in the note, a proportionate deduction from purchase money wras allowed upon answer. - But, in the view we take of the case, it is not essential to determine the point whether a cross-bill is necessary. So, also, in Beebe v. Swartwont, there is a dictum, to the effect that in the absence of frand a court of chancery would have no jurisdiction to set off damages accrued for breach of covenant in the vendor’s deed against purchase money, unless the vendor was insolvent. In view of the liberality that now prevails in chancery courts in respect to the allowance of equitable set-offs and recoupments, and of the cases we find in the books, and especially in view of the present statute allowing conditional or deficiency decrees and general execution against the property of the mortgagor, it may well be doubted if the rule suggested would now be held. But, tins point also, it is unnecessary now to decide.

The only breaches of covenants that appellants set up in their answer are “ that the title to twenty acres of said land has failed ” and “ that said tract of twenty acres had been conveyed to one Charles Fitzsimmons long before this defendant Barry gave the aforesaid mortgage; that said Fitzsimmons was at that time and still is in possession of said tract, and that the defendants were unaware of either the purchase or possession, aforesaid, of said Fitzsimmons, at the time the defendant David A. Barry purchased the premises described in the bill and executed his notes therefor.” The presumption from this pleading, even without the aid of the rule that all pleadings must be taken most strongly against the pleader^ would be that Fitzsimmons was in the actual possession of the tract prior to the date of the conveyance to Barry, and while the title of Atkinson was either in Gindele or Guild, or before Atkinson made the deed to Guild. If the twenty acres were in the adverse possession of Fitzsimmons at the time that Atkinson made his deed to Guild, then not only the personal covenants in such deed of seizin and of good right to'convey, but also the covenants of warranty and for quiet enjoyment were broken immediately, and the cause of action for breach of such covenants was in Guild. 2 Jones on Mortgages, Sec. 1502. If the entry and adverse possession under paramount title were while either Guild or Gindele held the title of Atkinson, then the breaches of the covenants that ran with the land were either in the day of Guild or in the day of Gindele. Hence, the cause of action as shown by the answer accrued to either Guild or Gindele, and was not assignable, and did not pass to Barry by the subsequent deed or deeds. Covenant does not lie by an assignee for a breach done before his time, and it is immaterial that the covenant is one which otherwise would run with the land. 4 Kent’s Com., star pages 471, 472, etc., and authorities cited in note “A” to star p. 472. The covenants of warranty and for quiet enjoyment pass to the assignee where the eviction is subsequent; but such covenants, when broken by actual ouster or eviction under paramount title, no longer run with the land, and do not go to the heir, devisee or grantee. Bedoe’s Executor v. Wadsworth, 21 Wend. 120, and cases there cited.

The case made by the evidence is not different from that suggested by the answer. The only testimony tending to show an adverse possession of the twenty acres is that of Gindele, who states that he never had or could get possession of the twenty acres either personally, when he held the legal title to Atkinson’s interest, or subsequently as agent of Hunnemacher, who is purchaser from Barry and one of the appellants herein. It does not appear from his testimony that he has been on the land since 1869, 1870 or 1871, and he is not certain he was on the twenty acres then. He states that he has passed close to the land every year since 1869, sometimes several times a year, sometimes a couple of times a month. He says that the Borlenscliak and Earnsliaw Stone Company are in possession of the land, and have a derrick, steam engine and tool house there, and that the first and last time he saw the tool house and derricks was in July or August, 1887, and it was from the railroad caz-s, and he was about half a mile from the tool house, and does not know whether the land is fenced or not. There is nothing in this evidence to show that the Bodenschak and Earnsliaw Stone Company had not been in possession of the land, and the derrick and tool house were not standing thereon long prior to the conveyance to Barry. In fact, Gindele says in his examination that he never knew anything about the location of the twenty-acre tract or the improvements thereon until in the summer of 1887, when his attention was called to them by Mr. Colby and Mr. Chesbrough.

It is urged by appellants that a breach of the covenant of seizin can be relieved against in a suit to foreclose; and that all the conveyances in the chain up to Barry are, in equity, conveyances by Atkinson, and his covenants to Guild were passed to Barry by his, Atkinson’s, direction. Even if Atkinson continued to be the equitable owner and the deeds from Guild and from Gindele were under an agency from him, yet the scope of that agency, until the deed to Barry was made, was merely for the purpose of contesting the tax title of Lomax. The deed to Barry was not within the scope of the agency that existed when the deed of Atkinson was executed. But even if it was, the scope of the agency could not be extended beyond the covenants contained in the deeds that were in fact made. The court has no power to make a new contract for the parties. They must all be bound by the bargain they have made. In the absence of fraud or mistake, the contract, as shown by the conveyances made, must be the measure of the rights vested and the liabilities imposed. Barry must be presumed to have known the legal effect of the title papers he took, and to have been content therewith. It must be considered that had it been the intention of the contracting parties that Barry should have the benefit and Atkinson should assume the burden of covenants from the latter of seizin and of good and lawful right to convey, then such intention would have been carried into effect by a quit claim deed from Gindele to Atkinson, and by a deed from the latter to Barry containing such covenants, or in some other appropriate way.

Probably the most fatal objection to the claim of appellants is the fact that it does not appear from the evidence that the possession of the Bodenschak and Earnshaw Stone Company is under paramount title. The only thing that tends in the least to connect that company with the title of Fitzsimmons is the answer of Gindele to the question, “Did the company state to .you how they obtained title?” His answer is: “Yes, sir, through Fitzsimmons.” Whatever probative force there might otherwise be in this question and answer, it is wholly destroyed by the statements of the witness on cross-examination. He there says: “I never stated that Bodenschak and Earnshaw got possession through Fitzsimmons. I said they had possession, but I don’t know how they got it. I am positive that I did not say in my direct examination that they got possession through Fitzsimmons. If I did, I was mistaken, that is all, because I do not know how they got possession.” So, assuming that the outstanding title of Fitzsimmons is the paramount title to this twenty acres of land, it does not appear that the adverse possession held by the stone company is under such title.

To constitute a breach of either the covenants of warranty or that for quiet enjoyment, there must be a union of ouster or eviction and lawful and paramount title. Otherwise there is no right of action on the covenants, or ground for relief in a court of equity upon bill filed to foreclose a mortgage given for purchase money. Beebe v. Swartwout, supra; Peters v. Bowman, supra; Latham v. McCann, supra; Hill v. Butler, 6 Ohio St. 207; 2 Jones on Mortgages, Secs. 1500, 1501, etc._

For the reasons we have indicated herein, we are of opinion there was no error in the action of the Circuit Court in refusing to allow, as a credit upon the notes and mortgage, the relative and proportionate value of the land in the possession of the stone company, and in rendering a decree in favor of appellee for $4,356.50, the full amount of principal and interest on the notes.

We also think it was not error to allow the solicitor’s fee of $100 to be taxed as costs. The fee was expressly provided for and its amount fixed in the mortgage deed; and although appellee presented the bill of complaint in his own behalf, yet it appears from the record that at the taking of the depositions and testimony he was represented by a solicitor, and that at the hearing of the cause he appeared by counsel, who argued the case in his behalf. The decree is affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Lacey, J.

license: Public Domain

text:
    Cyrus L. Berry v. Elizabeth A. Hanks.

      Exemptions — Personal Property — Sees. 13 and 15. Chap. 52, R. S.— Deserted Wife — Family—Sufficiency of Schedule — Fraud.
    1. A deserted wife without children is a “ family ” within the meaning of Secs. 13 and 15, Chap. 52, R. S., and is entitled to personal property of the husband to the amount of $100.
    2. In the case presented, this court holds that a sale by the wife of property so exempt before the same was levied upon, and the taking of it back after such levy, can not be considered fraudulent, although the statute requires the scheduling of property before the allowance of the exemption for which the law provides.
    3. The omission of some property of the debtor from the schedule will not work a forfeiture as to the'articles named therein.
    [Opinion filed May 28, 1888.]
    Appeal from the Circuit Court of Peoria County; the Hon. T. M. Shaw, Judge, presiding.
    Messrs. Starr & Starr, for appellant.
    The language of the statute and the policy and intent of the law is, that there shall be a family to receive the benefit of the statute. It is a relation of status, not of contract. Thompson, Homestead and Exemp., Chap. 2, Sec. 40, etc.
    The language of the Illinois statute is, that after the head of the family has deserted his family, “ the family shall receive,” etc. Other statutes and codes say “ wife and children,” or “ wife,” or “ either husband or wife,” or “ widow and children.” Tnompson, Homestead and Exemp., Sec. 40, etc.
    The Illinois statute contemplates that a family must remain, and uses that language.
    In Rock v. Hass, 110 Ill. 529, in a full consideration of the subject, the Supreme Court decided that a family can not consist of one person.

      This is consonant with the reason of the rule and the adjudicated cases, to the effect that when the relation of dependence is wanting, there can be no family to claim the benefits of the act. A married woman whose husband did not reside with her, having no children, held, not entitled to the exemption, under a statute similar to our own, using the word “ family,” for the reason that there was no family — no one dependent on her. Thompson, Homestead and Exemp., Sec. 68. See also Race v. Oldridge, 90 Ill. 150.
    The Illinois decisions are uniform and strong upon the point that exemptions should not be allowed to party attempting to deceive and defraud, and although “ property might have been exempt if no sale had been made, yet sale having been made to defraud creditors, debtor can not take it back so as to recover triple damages.” Cook v. Scott, 6 Ill. 333; Cassell v. Williams, 12 Ill. 387; Getzler v. Saroni, 18 Ill. 511; Cipperly v. Rhodes, 53 Ill. 351.
    Messrs. O’Shaughnessy & Maple, for appellee.
    A widow, whose children have all left her, and who remains on the farm, is head of a family. Collier v. Latimer, 8 Baxter (Tenn.), 420.
    Whether or not appellee was the head of a family was a question for the jury. Race v. Oldridge, 90 Ill. 250; Barnes v. Rogers, 23 Ill. 350.
    The case of Rock v. Hass, 110 Ill. 529, cited by counsel for appellant, refers to the statute exempting a homestead, which reads, “ Every householder having a family,” etc. The court might well hold under this statute and under the facts of this case, that upon the death of the husband, the wife would not be entitled to the homestead exemption. The widow in this case had children who were not living with her. But we are aware of no case where the husband and wife were living together on a homestead, in which the court of last resort in this State has decided that the survivor has not a homestead exemption for the reason that there are no children or other persons living with him or her. On the contrary, it has decided just the reverse.

      A widow without children, with servants alone, is entitled to a homestead. White v. Plummer, 96 Ill. 394. In Kitchell v. Burgwin, 21 Ill. 45, the court says: “ Having a wife is having a family.”
    A childless widow is within the words “ family of the deceased.” Estate of Walley, 11 Nevada, 260.
    The right of appellee and Lewright to rescind the contract of sale can not be disputed. It was outside and disconnected from any claims or rights of appellant. If the sale was fraudulent, being mide to hinder and delay creditors, no title passed, and if the property was not exempt, it was just as liable for Hank’s debts as if no sale had been made. Mor would the sale, if fraudulent, destroy appellee’s claim for exemption. Redden v. Potter, 16 Ill. App. 265; Bell v. Devore, 96 Ill. 217; Wilcox v. Hawley, 31 N. Y. 648; Tracy v. Cover, 28 Ohio St. 61; Hanes v. Tiffany, 25 Ohio St. 549; Megehe v. Draper, 21 Mo. 570; Mosby v. Anderson, 40 Miss. 49; Vaughn v. Thompson, 17 Ill. 78; Ketchum v. Allen, 46 Conn. 416; Crummen v. Bennett et al., 68 N. Car. 494; Sears et al. v. Hanks et al., 14 Ohio St. 298.
    The rescission of the sale made the status of the property exactly what appellant claimed it to be, so far as ownership was concerned, when the writ of attachment was levied.
    A debtor can sell property that is exempt, and it is no fraud upon his creditors. Green v. Marks, 25 Ill. 223; Ives v. Mills, 37 Ill. 75; Bliss v. Clark, 39 Ill. 590.
    After a debtor has selected 8300 worth of property exempt from execution, any execution against the debtor must be levied on other property and an officer can not justify himself in the sale of selected property on the ground that the debtor had other property. Austin v. Sevank, 9 Ind. 109; Megehe v. Draper, 21 Mo. 510; Douch v. Rahner, 61 Ind. 64.
    Protection is withdrawn from property not scheduled. Blair v. Parker, 4 Ill. App. 409. But it does not follow from this that protection is withdrawn from property that is scheduled. A schedule is not bad on account of omissions. State v. Beed, 94 Ind. 103. Debtor has valid claim of exemptions, though he fraudulently conceals other property, and refuses to surrender the same in execution. Elder v. Williams, 16 Nev. 416.
   Lacey, J.

The appellee sued the appellant, who was sheriff of Peoria county, averring in the declaration that he, under writ of attachment in favor of Allen Fahnestock against her and her husband, Green P. Hanks, for the sum of $92, issued out of the Circuit Court of said county, on December 18, 1885, levied upon certain goods of Green P. Hanks, of the value of $200, at the time of such levy in the hands of the appellee; that on November 10, 1885, said Green P. Hanks was the head of a family and resided with the same in said county, and about that date-deserted his family, and continued in such desertion till the time of filing the declaration; that appellee was his wife at the time of such desertion, and up to that time had constituted his family; that on December 21, 1885, she made a schedule of all the personal property of every nature and kind of Green P. Hanks, including money on hand and debts due and owing him, and subscribed and swore to the same and delivered it to defendant; that on December 29, 1885, appellant summoned three householders and caused them to be duly sworn, to fairly and impartially appraise the property of said Green P. Hanks, which appraisement aggregated less than $400; that thereupon she selected such articles in said schedule as exempt, under the statute, from attachment, and appellant refused to deliver the same to her, or release it from said levy, whereby she claimed as damages double the value of said property.

The declaration was demurred to by appellant; demurrer overruled and appellant pleaded over.

The cause was tried by a jury, and verdict for appellee for $232.90, and judgment on the verdict, from which this appeal is taken. The appellant insists that the appellee was not a “family” within the meaning of Secs. 13 and 15, Chap. 52, E. S., and only entitled, as an individual without a family, to an exemption of $100, which she received; that out of the property levied on she was entitled to no exemption; that she did not comply with the statute in making her schedule and turning .out to the sheriff the property in question.

The first point raised calls for a construction of the above sections. Sec. 13 reads as follows, when specifying the ex-cinptions, viz.: .

“ One hundred dollars worth of other property to he selected by the debtor, and in addition thereto, when the debtor is the head of a family and residing with the same, three hundred dollars worth of other property to4 be selected by the debtor.”

Section 15, under which the appellee claimed the property in dispute, provides as follows: “ When the head of the fam-

ily shall die, desert, or not reside with the same, the family shall he entitled to and receive all the benefit and privileges which are by this act conferred upon the head of the family residing with the same.”

The direct question here raised, so far as we have been able to find, has never been passed upon by the Supreme Court or any of the Appellate Courts, and is not entirely free from difficulty. We are constrained to hold, however, that the appellee, under the statute, was entitled to the exemption her husband would have been, had he been residing with and making up a part of the family.

The husband being the head of the family and residing with the same is entitled to the exemption. The husband and wife may constitute a family. One person in the strict sense of the term can not constitute a family. Race v. Oldridge, 90 Ill. 250.

The statute requires that -the husband must reside with his family, of which he is the head; but strictly speaking, where he and his wife alone constitute the family, he resides with his wife, not with the family, unless we can say he resides with himself as a part of the family; but persons always reside with themselves.

This would prove too much; for if the husband was compelled to reside with a family as the head, consisting of otliors beside his wife, he could never claim the exemptions allowed under the statute unless there were members of the family other than himself and wife. The true rendering of the statute, when applied to a case like this, would seem to he, that, in case a husband lives in the family relation with his wife, and is the head of the family consisting of himself and wife, he shall he entitled to the specified exem ptions, and in case he dies, deserts, or does not reside with his wife as a part of the family, then she, the remaining member of the family, after being deserted or left a widow, shall be entitled to the exemptions out of her husband’s property that the husband would be if living with her. ¡Neither the husband after he shall desert, nor his administrator or heirs after his death, is entitled to the exemption. So the creditor can be put in no worse condition by extending the provisions of tlio statute in case of death or desertion, to the wife, in a case like this.

We can see no-good reason for excluding the wife, where there is no other member of the family, from the benefits of the statute, unless it should appear plain that such was the intention of the legislature from the language used. We think the statute should not receive the construction contended for by the appellant. It should receive a liberal and not a strict construction. To construe it as contended for by appellant would be to give it an illiberal and technical construction not warran.ed by the reading or the general policy of the legislature. We may draw some light from the policy of the legislature in another branch of exemptions — that of homesteads.

Such statute had the same object in view as the present one in regard to exemptions of personalty. "That is, thte humane object of protecting the weak and unfortunate. The homestead act, now a part of the general act on exemptions, provides — Sec. 2, Chap. 52:

Such exemption (the homestead) shall continue after the death of such householder for the benefit of the husband or wife surviving, so long as he or she shall continue to occupy such homestead.”

The Supreme Court in giving that statute a construction said: “A Avidow without children is as much entitled to retain the homestead of her husband as one with children, for she may occupy it herself with servants, or alone if she chooses.” White v. Plummer, 96 Ill. 394. The opinion Avent so far in favor of the wife in giving a construction to the statute in regard to her occupation of it,” under the statute, that three of the judges dissented.

Taking into consideration the liberality of the legislature and the courts in ameliorating the condition of the debtor class and their dependents, is it likely that the legislature meant by the language used to exclude the wife from the benefit of the exemptions of personal property allowed to the husband and his deserted family, where the family consisted alone of himself and wife?

We think no such exception was intended, and hold that the wife was entitled to the exemption.

We do not think the second point is well taken. We do not think the sale of the goods to Lewriglit was fraudulent. It is true tjie sale was made prior to the levy and the goods taken back after the levy. But the goods sold did not amount to §400, and in fact the whole amount left by her husband did not amount to that sum. We cannot see how there could be any fraud in making the sale, as none of the goods were subject to the attachment in case appellee desired to claim them. Green v. Marks, 25 Ill. 223; Ives v. Mills, 37 Ill. 75; Bliss v. Clark, 39 Ill. 590.

Bor do we think that the new statute that requires scheduling before exemptions can be claimed, has the effect to change the doctrine announced in the above cases. The appellee had a right to annul the sale made to Lewriglit after the property was levied on as the property of her husband and herself. We can not see how appellant was injured by that act, especially where there was no attempted fraud.'

We also think the third point not well taken. The schedule appeared to be in proper form, although it might have been more specific in stating rvliat particular property belonged to her, and what to her husband. She was entitled to §400, as the deserted wife of her husband, out of the property he left, even if she had no property of her own; but if she had a hundred dollars worth of her own she was entitled to exemption as to that as a common debtor; but she could not take both. The §100 worth of property was given her by appellant, so that portion was satisfied.

She demanded, under the schedule, §300 more. The officer well understood that she claimed that, under the provisions of the statute allowing her this out of the property of her husband left by him when he deserted her, and the schedule was sufficiently formal.

The point is made that the schedule did not contain all the property of the husband. We think it did substantially. The property mortgaged to Marlatt had been foreclosed by his taking possession before the levy and schedule under the chattel mortgage.

It was not more than enough to pay the mortgage debt. Even if some property had been omitted from the schedule we do not think that appellee’s right to claim the property scheduled was forfeited.

The statute allows all property not scheduled to he levied on and sold — not that named in the schedule and claimed. Austin v. Sevauk, 9 Ind. 109; Megehe v. Draper, 21 Mo. 510; Donch v. Rahner, 61 Ind. 64, State v. Reed, 94 Ind. 103; Blair v. Parker, 4 Ill. App. 409; Elder v. Williams, 16 Nev. 416; Hearth v. Keyes, 35 Wis. 668.

Upon the whole we think the case was fairly tried. Seeing no error, the judgment is affirmed.

Judgment affirmed.


text:
    F. O. Cunningham et al. v. Patrick Thornton.

      Bill to Reform and Foreclose Trust Deed — Misdescription—Subsequent Conveyances — Constructive Notice of Previous Conveyances — Evidence.
    1. Such conveyances of record as are in the apparent chain of title to real estate, are alone required to be noticed by subsequent purchasers and incumbrancers.
    2. Tn order to help out a defective description the law will not allow the false description to be rejected and the correct one inserted.
    [Opinion filed May 28, 1888.]

      Appeal from the Circuit Court of Peoria County; the Hon. T. M. Shaw, Judge, presiding. ’
    The facts presented by this record are as follows: Alvah Moffit and wife, on May 24, 1867, conveyed, by warranty deed to John Thornton, for the consideration of §400, the following described parcel of land, to wit: “A part of the E. of the 27. E. \ of Sec. 13, town 8, 27. of E. 7, E. of 4th P. M.; beginning at the 27. W. corner of said tract, thence S. 830 feet, thence E. 140 feet, thence E. 66 feet across the railroad track, thence S. on the east side of said railroad land 930 feet to the bank of the Kickapoo creek, thence 27. 82 degrees E. 400 feet, thence 27. 72 degrees E. 420 feet, thence 27. 18 degrees W. 370 feet, thence 27. 320 feet, thence 27. 50 degrees W. 370 feet, thence 27. 10 degrees E. 200 feet to the north line of said tract, thence W. 250 feet to the place of beginning, being 15 acres, more or less, excepting a certain right of way and coal.” This deed was placed of record on the date of its execution. On the 14'tli day of August, 1875, John Thornton and wife executed a trust deed to Thomas McGrath, trustee, to secure a note held by Patrick Thornton of that date for the sum of §386, due in three years, at the rate of ten jxer cent, interest per annum; said trust deed conveyed the tract of land described in the deed from Alvah Moffit, of the date of May 24, 1867, by the following- description, to wit: “ A part of the E. of the 27. E. J of See. 13, township 8, 27. of E. 7, E. of the 4th P. M., in said towmship, county and State. Fox-further descriptioxx by metes and bounds, reference is had to a deed from Alvah Moffit and wife to John Thornton, which deed bears date May 24, 1867, and x-ecorded in x-ecorder’s office of Peoria county, Illinois, in book B O of deeds, at page 146, except the same as provided in the above deed.” This trust deed was filed of record the day it bears date.
    On the 25th day of April, 1878, John Thornton obtains another deed from Alvah Moffit conveying to him the following tract of land for the express considex-ation of §400 by the following descx-iption, to wit:
    “A part of the E. of the N. W. ¿ of Sec. 13, township 8, E. of E. 7, E. of tlio 4th P. H., beginning at the E. W. corner of said tract, thence S.l,830 feet, thence E. 140 feet, thence E. 66 feet across the O., B. & Q. E. E. track, thence S. on the east side of the said railroad land 930 feet to the bank of the 'Kickapoo creek, thence E. 82 degrees E. 400 feet, thence E. 72 degrees E. 420 feet, thence E. 18 degrees W. 370 feet, thence E. 320 feet, thence E. 56 degrees W. 370 feet, thence E. 10 degrees E. 200 feet to the north line of said tract, thence west 250 feet to the place of beginning, being 15 acres, more or less; excepting acertain right of way and coal.” This deed contains the following recital: “ This deed is made to rectify a deed made between the parties hereto on May 24,1867, and recorded same date in recorder’s office of Peoria county, Blinois, in book B O on page 146.” This deed was recorded June 7,1878. Subsequent to the recording of these several conveyances John Thornton borrowed money of appellant Cunningham at three different times, amounting in all to §300. The first loan was made June 16, 1880, for the sum of §150, for which a trust deed and note were given of that date.
    The second loan was made April 30, 1883, for $100, for which a trust deed and note were given of that date. The third loan was made May 2, 1884, for $50, for which a mortgage and note were given of that date. These instruments were filed of record on the days they bear date respectively-These notes bear interest at the rate of eight per cent, per annum, and are owned by appellant Cunningham. These trust deeds and the mortgage conveyed the following tract of land, to wit: “A part of the E. of the northwest quarter of Sec. 13, township 8, north of range 7, east of the 4th P. M., beginning at the northwest corner of said tract, thence S. 830 feet, thence E. 140 feet, thence E. 66 feet across the C., B. & Q. railroad track, thence S. by the eastside of the said railroad land 930 feet to the bank of the Kickapoo ci*eek, thence E. 82 degrees E. 400 feet, thence E. 72 degrees E. 420 feet, thence E. 18 degrees W. 370 feet, thence E. 320 feet, thence E. 56 degrees W. 370 feet, thence E. 10 degrees E. 200 feet to the north line of said tract, thence W. 250 feet to the place of beginning, containing 15 acres, more or less, excepting a certain right of way and coal,” etc., “ being the same tract of land on which John Thornton resides, and described in the deed from Alvah Mofiit to John Thornton, of date April 25, 1878.
    On November 20,1884, John and Mary Thornton, to secure their joint notes of that date for the sum of §175, executed a mortgage to S. S. Page upon the same land, by the same description as covered by appellant Cunningham’s trust deeds and mortgage. This mortgage was recorded November 20, 1884.
    By stipulation this case is dismissed as to S. S. Page and Geo. T. Page is substituted as a defendant.
    This bill was filed by. the appellee to reform and foreclose the trust deed given by John Thornton and wife to Thomas McGrath, trustee, to secure the appellee in the sum of §386) secured by said trust deed and note to appellee for that sum, and bearing date as above stated, August 14,1875, and recorded same day.
    The court below held that the said last named trust deed to appellee had priority over the various trust deeds and mortgages of the appellants, and decreed that the payment of the latter trust deeds and mortgages be postponed to that of appellee.
    Messrs. W. T. Whiting and J. A. Cameron, for appellants.
    The beginning point established by the parties in their deed of conveyance is vital and can not be rejected, and controls the other calls in the deed; and if the land can not be located without abandoning this point the deed is void for uncertainty. White’s Bank of Buffalo v. Nichols, 64 N. Y. 65; Dale v. Travelers Ins. Co., 89 Ind. 473; Dwight v. Tyler et al., 49 Mich. 614; LeFranc v. Richmond, 5 Sawyer, 601.
    The deed from Alvah Mofiit to John Thornton dated May 24, 1867, not describing the land intended to be conveyed, is void for uncertainty, and appellee, having followed the same description in his trust deed, it is also void as to the rights and interests of third parties without actual notice or knowledge of the existence of said trust deed, and the recording of it is not constructive notice to appellants of appellee’s interest in the land, covered by their trust deeds and mortgages. Rogers v. Kavanaugh, 24 Ill. 583; Bowen v. Calloway, 98 Ill. 41; Chamberlain v. Bell, 7 Cal. 292; Lacey & Hoagland v. Simpson, 11 N. J. Eq. 246; Sanger v. Craigue, 10 Vt. 555; Frost et al. v. Beekman, 1 John. Ch. 288.
    As far as the legal title to the premises is shown by the chain of title of record, it is perfect in John Thornton, subject only to the liens of appellants. They were only required to search the records in the apparent chain of title to the tract of land covered by their trust deeds and mortgages. Grundier v. Reid et al., 107 Ill. 304; Irish et al. v. Sharp et al., 89 Ill. 261; Bent v. Coleman et al., 89 Ill. 364; Manley v. Pettee, 38 Ill. 128; Bowen v. Galloway, 98 Ill. 41; Wade on Notice, Sec. 205; Wait et al. v. Smith et al., 92 Ill. 385; Carbine v. Pringle, 90 Ill. 302; Dexter v. Harris, 2 Mason, 531.
    In all the adjudged cases, the recitals or references in the deeds or wills which were held to be sufficient notice of the rights of third parties, were an express and direct recital of the equitable rights sought to be established, or a reference to some other deed which expressly stated the rights in such a manner that the purchaser could not, without negligence, avoid noticing. White v. Kirby, 42 Ill. 510; Kerfoot v. Cronin, 105 Ill. 609; U. S. Mort. Co. v. Gross et al., 93 Ill. 483; C., R. I. & P. R. R. Co. v. Kennedy et al., 70 Ill. 350; Executors of Gale v. Morris, 29 N. J. Eq. 222; Hull v. Davis, 36 N. H. 569; Colcord v. Alexander, 67 Ill. 581; City of Chicago v. Witt, 75 Ill. 211.
    The rule of law to be deduced from the adjudged cases is: That when knowledge is imputed to a person by mere force of law without evidence of actual knowledge, he can only be held to know what the record to his chain of title shows, and not to know what it does not show. Gale v. Morris, 29 N. J. Eq. 222; Wilson v. King, 27 N. J. Eq. 374; Carbine v. Pringle, 90 Ill. 302.
    The doctrine that the recording of the equitable trust deed of appellee is not constructive notice to appellants, for which we are contending as applicable to the case at bar, is fully recognized by the following decisions: Irish et al. v. Sharp, 89 Ill. 261; Manley v. Pettee, 38 Ill. 128; St. John v. Conger, 40 Ill. 535; Harris v. McIntyre et al., 118 Ill. 275; Halstead v. Bank of Ky., 4 J. J. Marshall, 555; Lessee of Heister v. Fortner, 2 Binney, 40; Calder v. Chapman, 52 Pa. St. 359; Frost et al. v. Beekman, 1 Johns. Ch. 288-300; Farmer’s Loan and Trust Co. v. Maltby, 8 Paige, 361.
    Mr. Dan. F. Baum, for appellee.
    The record of an instrument conveying an equitable interest of any kind in real estate, is notice to the same extent as a deed conveying the legal title. Snapp et al. v. Pierce et al., 24 Ill. 156; Powell et al. v. Jeffries et al., 4 Scam. 387; Doyle et al. v. Teas et al., 4 Scam. 202.
    Pnrchasers and incumbrancers are chargeable with constructive notice of the recitals of all instruments in their chain of title. Dwight v. Tyler et al., 49 Mich. 614; Jones v. Williams, 24 Beavan, 47; Bellows v. Floyd, 2 Watts, 409; White v. Kirby, 42 Ill. 510; Crawford v. C., B. & Q. R. R. Co., 112 Ill. 314; Sidwell v. Wheaton, 114 Ill. 267.
    Whenever a purchaser or incumbrancer has notice from the record that his grantor had been the equitable owner of the land before he obtained the legal title, then such purchaser or incumbrancer is chargeable with notice of all incumbrances of record made by his grantor after the date of the inception of his grantor’s equitable ownership. Irish et al. v. Sharp et al., 89 Ill. 261; Hetzel v. Barber, 69 N. Y. 1.
    The recital in the deed of "April 25, 1878, gave appellants notice of John Thornton’s equitable ownership of the land in question from May 24, 1867, and was information sufficient to put a prudent man upon inquiry.
    “A party, having notice of such facts as would put a prudent person upon inquiry, is chargeable with notice of other facts, to which, by diligent inquiry and investigation, he would have been led.” Bent v. Coleman, 89 Ill. 364; Doyle et al. v. Teas et al., 4 Scam. 248; Rupert v. Mark, 15 Ill. 542; Morrison v. Kelley, 22 Ill. 610; Babcock v. Lisk, 57 Ill. 327; Ogden v. Haven, 24 Ill. 59; Harper v. Ely, 56 Ill. 179; Parker v. Merritt, 105 Ill. 293; Citizens National Bank v. Dayton, 116 Ill. 258.
    It has been uniformly held that if the deed calls for natural monuments, as well as describes the land by a reference tc the number of township, section and fraction of a section, in accordance with the general rule that natural monuments will control both artificial monuments and the courses and distances,the boundaries would be determined by the natural monuments, although the plats and field notes would indicate a different location. Montgomery v. Johnson, 31 Ark. 74; Brown v. Huger, 21 How. 305; McIver v. Walker, 4 Wheat. 444; Newsom v. Prior, 7 Wheat. 7; Shelton v. Maupin, 16 Mo. 124; Duren v. Presberry, 25 Texas, 512; Dwight v. Tyler et al., 49 Mich. 614.
   Lacey, J.

The only question raised by this record is as to the priority of the various incumbrances of the appellants and the appellee.

It is admitted by appellee in his brief that “the evidence does not show appellants had any actual knowledge of the trust deed of appellee atthe time they took their several trust deeds and mortgages.” The only question, therefore, is whether the appellants, at the respective times when they took their several trust deeds and mortgages, were chargeable with constructive notice of the existence of the appellee’s trust deed.

Two propositions are claimed on the part of the appellee) the correctness of either of which entitles him to priority. They are as follows: 1. The appellants are chargeable with constructive notice of appellee’s trust deed, without regard to the sufficiency of the description in it to pass the title. 2. The original description in the first deed from Moffit to John Thornton, as well as that in appellee’s trust deed which followed the first, was sufficient to convey title to the land in controversy, notwithstanding the error in it. These are the propositions upon which we are called on to pass, and the solution of which is decisive of the case.

Both appellants and appellee claim liens through John Thornton, who was the grantee of Alvah Moffit: the latter through a deed misdescribing the land in question, following the supposed erroneous description in the first deed from IVToffit to John Thornton, and the former, though conveyances subsequent in time and record to appellee’s lien, through a supposed corrected description subsequent to the so-called corrected deed from Moffit to John Thornton. We will first pass on the question of the sufficiency of the description to pass the title. We can not regard the description in the deeds, mortgages and trust deeds, executed before the correction, as good. It is insisted by appellant that after rejecting the portion of the description that is false, there still remains enough, in view of the parol evidence, to locate the land on the proper tract; that is, the one intended by the grantor. We cannot agree with this view. The land meant to be conveyed was in the E. of the 2í. W. J, Sec. 13; the starting point to measure it by metes and bounds was at the northwest corner of said tract. If the false portion, the northeast quarter,” be rejected, then the land would be located in the east half of the section. It would then read, a part of the east half of section 13, beginning at the northwest corner of said tract,” a quarter of a mile east of the true point. The true starting point would still not be found. If the entire description, “east half of the northeast,” be disregarded, we then have no starting point except the “northwest corner of the tract,” of fifteen acres. From this imperfect description the land could not with any certainty be located. There is no point marked or described on the railroad where the line in the third call for distance crosses it, nor is there any monument or point designated on the bank of “Kickapoo creek,” where the fourth call for station is made. So, without the starting point, the land can not be located. In order to help out a defective description the law will not allow the false description to he rejected and the correct one inserted. This would be making a new description and changing the written description by parol evidence. This alone a court of chancery has the power to do. Words are not allowed to be inserted even to help out a description in a will, in order to give effect to the intention of a testator, where courts are more liberal than they are in regard to deeds, for deeds may be corrected in equity according to the intention of the grantor and grantee, but not so with wills. They must stand or fall by the description therein contained. Mistakes can not be corrected. Decker v. Decker et al, 121 Ill. 341; Kurtz v. Hobner, 55 Ill. 514; Barven v. Allen, 113 Ill. 53. “Parol evidence may be used to establish and identify the object of the call in the deed, and the. grant will only be held void for uncertainty where, after resort to oral proof, it remains a matter of conjecture what was intended by the instrument.” Smith v. Crawford, 81 Ill. 296. After hearing the parol evidence in this case, and if the starting point be rejected, it would still be a matter of conjecture where the land was located.

The njxt point is, were the appellants bound to take notice of the record of appellee’s trust deed.? We are of the opinion that they were not. On account of the misdescription in appellee’s mortgage, it -was not in the apparent chain of the title of the land in question. It did not describe it. The records did not show that the land in question had been conveyed by John Thornton at the time the appellants acquired the trust deeds and mortgage. The appellants would not be compelled to search the records to ascertain whether John Thornton had made some deed in which facts were recited by means of which, added to the knowledge they were compelled to have, i. e., that John Thornton had held the land by misdescription for several years, the appellants would be put on inquiry. The law, we think, is well settled that such conveyances of record as are in the apparent chain of title are alone required to be noticed by subsequent purchasers and incumbrancers. Crabtree v. Pringle, 90 Ill. 302; Wait et al. v. Smith, 92 Ill. 385; Rodgers v. Kavanaugh, 24 Ill. 583; Irish v. Sharp et al., 89 Ill. 261; Dexter v. Harris, 2 Mason, 531; Manly v. Pettee, 38 Ill. 128.

It would be most unreasonable to require appellants to search the records through and examine every deed executed by John Thornton subsequent to the time he had accepted the defective deed from Moffit in 1867, and read all such deeds to ascertain if he had not made some conveyance of this land by a misdescription similar to the one contained in his deed from Moffit. All that the appellants were bound by law to take notice of was that Thornton had for some time held some kind of a claim on the land under a deed in which it was misdescribed, and that the deed had been corrected. Having this knowledge, if, as a matter of fact, appellants had seen the trust deed of appellee in which the land was similarly described, it would have been, as wTe think, good notice; but notice of such trust deed can not be inferred from the mere fact of its being of record. The case of Dwight v. Taylor, 49 Mich-614, is not in point. In that case the court held there was no want of a legal description in the conveyance by the record by which all were bound. The observation of the judge writing the opinion, at its conclusion, that if the appellant had examined the record he would have been notified of appellee’s title, was unnecessary to a decision of the case and was mere obiter dictum, the description being held to be good. Besides, the remark was correct, at all events, as to notice, the title being held legal. But if the opinion is to be understood to decide that even if the description had been bad, the subsequent grantee should be held to notice, we do not approve it, and think it not in harmony with the opinions of our own Supreme Court and other courts of high authority. It follows from what we have said that the court below erred in holding that appellee’s trust deed had priority of lien over appellants’ trust deeds and mortgages, and decreeing that the former should be first paid. Appellants’ trust deeds and mortgages should have priority as to appellee’s, and as to each other in the order of their record.

The decree of the court below is therefore reversed and the cause remanded to the court below, with directions to render decree in accordance with this opinion.

lieversed and remanded.


author: Per Curiam.

text:
    Ernest Treishel v. David McGill.

      Practice — Pules of Court — Bill of Exceptions — Motion to Strike from Record.

    1. Rules of court entered of record become the law of procedure in matters to which they relate until they are rescinded or modified by order of court entered of record. Such rescission or modification can not be made by a judge in vacation.
    2. Where the time in which to prepare and present a bill of exceptions, by order of the trial court entered of record, .is extended to ■ a day in vacation, under a rule of court providing that in such case the party preparing the bill shall give the opposite party a certain time within which to examine the original or a copy thereof, it is errorjon the part of the trial judge to sign the same until the full time has been accorded for such examination.
    [Opinion filed June 22, 1888.]
    Appeal from the Circuit Court of Iroquois County ; the Hon. Alfred Sample, Judge, presiding.
    Messrs. Kay & Etjans, for appellant.
    Messrs. R W. Hilscher and T. B. Harris, for appellee.
   Per Curiam.

A motion was filed in this case by the appellee to strike the bill of exceptions filed herein from the record, and the causes assigned therefor are, first, that no bill of exceptions or copy thereof was served upon or left with appellee br his attorneys five days before the time of the presentation thereof to the trial judge for his signature, under «Rule 7 ” of the rules of practice, then in force in said trial court; and second, there was no waiver of such notice and copy, or of leaving the original bill with appellee or his attorneys, as required by said “ Rule 7.”

The facts, so far as deemed necessary for determination of the questions presented, appear by stipulation of counsel for the respective parties and filed in this cause, and in effect are as follows: That the time within which to prepare and present a bill of exceptions in this cause was, by the order of the trial court entered of record, extended to a day in vacation, and the time within which to present the same for allowance and signature of the trial judge under such order, expired January 31, 1888. That ‘‘Bule 7” of the rules of practice of the eleventh judicial circuit of this State was, at the time the judgment and order for said appeal were made, and still is, in full force and effect in the said county • of Iro qnois; that so much of said “ Buie 7” as is deemed material to the case at bar, is as follows:

“ In case the court shall in any case extend the time for preparing and presenting for signature a bill of exceptions to a day in vacation, on or before which such bill of exceptions may be presented for the signature of the judge, it shall be the duty of the party preparing such bill to give the opposite party five days notice of the time and place of presenting such bill of exceptions, and he shall at the same time leave with the opposite party a copy of the proposed bill of exceptions, or shall allow the opposite party to take the original draft of such bill and retain the same for four days for examination, and no bill of exceptions shall be signed in vacation without satisfactory proof of such service of notice and copy, unless the opposite party shall waive, in writing, such notice and copy, or of leaving the original with the opposite party as aforesaid.”

That on the evening of the 26tli of January, 1888, a written notice of the time and place of presenting a bill of excep tions in said cause, was served by delivering a copy thereof to the defendant, appellee. That no bill of exceptions or copy thereof was left with such notice, and on the 28th of January, 1888, a copy of such notice was served on the attorney of appellee, stating the intended time and place of the presentation of said bill of exceptions to the trial judge for signature and at the same time last above stated was left with said attorney for appellee the original bill of exceptions, and the same was allowed to remain with said attorney until the morning of January 31,1888, at which time the attorneys for both appclhint and appellee appeared before the judge who tried said cause, and attorney for appellant presented the said bill of exceptions to said judge for allowance and signature.

The evidence on the trial of said cause was taken in shorthand by the official court reporter; no application was made to said reporter by appellant to transcribe said testimony until the evening of January 21, 1888, and owing to the intoxicated condition of the reporter the appellant was nnable to obtain a transcript of such testimony and complete bis bill of exceptions until the 28th day of January, 1888, and but for such condition of the reporter the testimony could and would have been obtained, and said hill of exceptions completed and delivered, or a copy thereof, to attorneys of appellee, on the 26th day of January, 1888, and in time to comply with the “Rule T” of said court above set forth.

At the time of presenting said bill of exceptions to the trial judge, as before stated, the foregoing facts were made to appear, and attorney for appellee objected to the allowance or signing thereof for the causes assigned in his motion, filed in this cause, hut the same was overruled and the bill of exceptions signed and sealed hv the trial judge, and the same was filed in this court as part of the record in this cause. Under the facts as stated, ought the motion of appellee to prevail ?

In The People v. Blades, 104 Ill. 591, it was held, where a standing rule of the “ trial court required the party obtaining an extension of time for preparing a bill of exceptions to a day in vacation to give the adverse party five days notice of the time and place of presenting the bill to the trial judge, and at the same time leave with the opposite party a copy of the bill, or allow him (the opposite party) to take and retain the original draft four days for examination, unless rescinded or modified and entered of record, the rule must stand, and any order giving time within which to prepare and file bills of exceptions must he construed with reference to such rule.” In that case the court say it was purely discretionary with the trial court to enter such order or not; necessarily, therefore, in the exercise of that discretion no one had a right to object to the terms and conditions imposed.

“ The parties’ condition is no worse than it would have been had the sickness of the reporter occurred, and from that cause the inability to procure a transcript of his notes until beyond the time set for signing the bill of exceptions. We do not regard it as a subject for us to inquire into whether it would be equitable or inequitable to disregard the rule under the circumstances shown. There must be a limit to the time within which to present bills of exceptions for signatures of judges, and it is most reasonable that opposite counsel should have previous opportunity to examine the bill.”

In Hake v. Strubel, 121 Ill. 321, the bill of exceptions appearing in the record was not presented to the trial judge nor signed nor sealed by him within the time named in the order granting the appeal. Upon the record being taken to the Appellate Court for the Fourth District, on motion of appellee the bill of exceptions was there stricken from the record and the judgment of the Circuit Court affirmed. On petition of appellant the cause was, by the Appellate Court, certified to the Supreme Court, and the question there submitted was whether a circuit judge, in vacation, under the facts of that case, had the power to extend the time for presenting and filing such bill of exceptions beyond the time fixed by the court when granting the appeal, and still make such bill a part of the record. It was there held, after a careful examination, “ that after the time for presenting the bill fixed in the order of appeal had expired, the trial judge was powerless to act in the premises, and that he could not be vested with requisite power to settle and allow a bill of exceptions by the consent or agreement of the parties, and the judgment of the Appellate Court was affirmed.”

In The People ex rel. v. Kirk Hawes, 25 Ill. App. 326, which was a proceeding by mandamus to compel the respondent, one of the judges of the Superior Court of Cook County, to sign and seal a bill of exceptions, the Appellate Court of the First District, speaking of the power of a circuit judge in vacation to extend the time for presenting and filing a bill of exceptions beyond the time fixed by the court at the term in which judgment was entered and still make such bill of exceptions a part of the record, say: “ It can not be and ne ver has been pretended, so far as we know, that a judge in vacation, in the absence of express statutory authority, can interfere with or change tire record of the court over which he presides. When the performance of particular duties in vacation are in conformity with recognized rules of practice committed to him, he may perform these duties according to and within the terms of the order, but he can not modify or enlarge the order? and thereby extend his power. The entry of orders in judicial proceedings are judicial acts and must be performed by the court and not by a judge in vacation. The order allowing the appeal fixing the amount of the bond and the time within which the bond and bill of exceptions in the cause shall be presented and filed, are judicial acts which can only be performed by the judge in term time and when sitting as a court; it follows of necessity, then, that the act of changing such order by entering another order extending the time in which the bill of exceptions might be presented should and must be of the same judicial character, an exercise of judicial power and could not be performed by a judge except in term time.”

' By the 74th section of Chap:37, title, “Courts,” it is provided that said courts (Circuit and Superior) may from time to time make all such rules for the orderly disposition of business before them as may be deemed expedient, consistent with law.

It will be observed that such rules are required to be made by the courts and not by the judges in vacation, and as we have seen, both upon principle and authority, when such rules are entered of record in such courts the same become the law of procedure therein, in matters to which the same relate, until rescinded or modified, and entered of record in such court, and that such rescission or modification could not be made by a judge in vacation.

The rule in question being the law of the court, the order granting time to sign the bill of exceptions in vacation must be regarded as made with reference to the rule of court, and the rule taken as a part of the order. The judge would have no discretion or power in vacation to depart from the term of the order or rule. Hence the signing of the bill of exceptions without compliance with the rule was an act of the judge without legal authority. The cases cited above, we think, clearly establish that doctrine.

The motion of appellee is allowed and the said bill of exceptions will be stricken from the record.


author: C. B. Smith, J.

text:
    Illinois Central Railroad Company v. Belford Slater, Adm’r.

      Personal Injuries — Railroads—Collision at Highway Crossing — Death of Child — Action for Damages — Questions for Jury — Negligence of Parent —Evidence—Res Grest®.
    1. It seems that a failure to look in the direction from which a train is expected, upon approaching - a railroad crossing, if such train would be visible to a person so looking, will defeat a recovery for injuries suffered by him from the train in question, although the bell was not rung nor the whistle sounded.
    2. It is not negligence in a parent to send minor sons of nine and thirteen years with a gentle team upon an errand which requires them to cross a railroad track at an established crossing.
    3. Evidence as to the speed of the train at the time of the accident is admissible as part of the res gestae.

    4. The question of damages for causing the death of a child rests in the sound discretion of the jury. In the case presented, a verdict for $1,000 is sustained.
    5. Evidence as to the financial standing of the father, who sues as administrator for the use of the next of kin, is inadmissible.
    [Opinion filed July 16, 1888.]
    Appeal from the Circuit Court of Ogle County • the Hon. C. W. Upton, Judge, presiding.
    Messrs. ~W. & W. D. Barge, for appellant.

      Messrs. .Jambs H. Oabtweight and J. W. Allaben, for appellee.
   C. B. Smith, J.

Arthur B. Slater and Lewis Slater, brothers, and the children of Belford Slater, were both struck and killed on the 24th of August, 1886, by a locomotive engine drawing a passenger train on appellant’s road near Polo at Brand’s crossing. Arthur was about nine years old and Lewis about thirteen when they were killed. On the morning of , the day of the accident, Belford Slater, the father, sent the two boys to Polo, something over a mile distant from home, with a team and wagon, to get a barrel of buttermilk from the creamery. Arthur had been going to school, but on that day • bad a sore foot and could not go and ivas allowed to accompany his brother Lewis on the errand to the village. They did the errand and about eleven o’clock were returning home and reached Brand’s crossing at about the time the passenger train was due at the crossing and in crossing the track the wagon in which the boys were riding was struck by the engine drawing the train and the boys both instantly killed. This suit is brought by the father as administrator of Arthur B. Slater for the use of the next of kin.

There are three counts in the declaration. The first charges the defendant with negligently running its train at a high and dangerous rate of speed and with failing to keep a proper watch for persons about to cross the track and with failing to give such signal as would warn persons of the approach of the train and with a failure to stop or to endeavor to stop the train after the danger was apparent. The second count charges negligence in doing or not doing some one of these things named in the first count.

The third count charges the negligence of the company to consist in not ringing a bell of thirty pounds weight or blowing a whistle at least eighty rods before reaching the crossing and in not keeping the bell ringing or the whistle blowing continuously until the crossing was reached, and that by reason of such failure the deceased, in the exercise of due care, failed to hear or see the approaching train, and without his fault was killed. All the counts aver the deceased was in the exercise of due care and caution.

The plea was the general issue. The only controverted question of fact was as to whether defendant and deceased, one or both, were guilty of negligence, and the degree of that negligence. The proof shows or tends to show that the train was perhaps five minutes late at the crossing and that it was running at the-rate of speed of about forty miles an hour at the time. There is a good deal of conflict in the testimony as to what, if any, obstructions there were in the immediate vicinity of the crossing in the direction from which the train was coming which would or would not obstruct the view of persons approaching the crossing, so as to prevent a person on the watch (using care) to see the approaching train. According to appellee’s witnesses the obstructions were many and serious and would be likely to prevent any person seeing the approach of the train until they were on or very near the right of way. According to appellant’s witnesses any person using ordinary care would have no trouble, if he looked, to see the approaching train at least two miles. The evidence satisfies us that there were a good many obstructions along the sides of the right of way and near it, consisting of trees and osage and willow hedge, orchards, cribs and sheds, such as to seriously interrupt the vision. The accident occurred, too, at a time when the trees were in full leaf. The train was running on a down grade until very near the crossing and making less noise from the escape of steam and the exhaust and labor of the engine than it would on a level or up grade. Appellant has taken great pains and called many witnesses to satisfy the jury and court that the obstructions were not such as to obstruct the view of a careful and watchful person. Many photographs have been taken at different positions on the wagon road and showing a view of the track and train at different points above the crossing in the direction from which the train came on the day of the accident. Witnesses also testify that, standing at different points on the road near the crossing where the boy lost his life and over which the wagon passed immediately prior to the accident, they could see the track for nearly or quite two miles. The proof discloses that many of these photographs and these observations were taken in December when the foliage was all gone. The camera, also, was much lower than the-boys sitting on the top of the wagon and would be very likely to miss obstructions among trees which would meet the eye of a person sitting on top of a wagon when the trees were in full leaf.

What the nature and extent of these obstructions were and how much, if any, they would interrupt the view of persons approaching the track, was one of the controverted facts in the case and seems to have been fairly submitted to the jury. That these obstructions existed, cutting off the view from the road, receives support from the engineer himself. He swears that he was on his seat at his proper place and looking forward as he approached the crossing ; that the windows in the cab were open, that he blew the whistle at the whistling post but saw no teams until he was within twenty-five or thirty rods of the team, and that the team was-then just on the right of way about fifty feet from the track. The opportunity for the engineer to see the approaching team from his elevated seat was fully as good as that of the boys in the wagon to see the approaching train. Approaching the track was one of the controverted facts in the case and was fairly and fully submitted to the jury. If there were sufficient openings in the direction from which the train was coming to enable the deceased to see the train if he had looked on approaching the track, and he failed to look, then such failure to look would be such negligence as would defeat a recovery, and in that view of the case it would make no difference whether the defendant rang a bell or sounded a whistle or not; but if, on the contrary, these obstructions were of such a character as to prevent the deceased and his brother, in the exercise of proper and reasonable care and caution, from seeing the train coming in time to save themselves, then it becomes a very important and material question of fact whether the defendant rang the bell or sounded the whistle as required by law, or for such reasonable length of time as would give persons approaching the track warning of danger so that they might keep off the crossing until the train passed.

As to whether or not the defendant rang the bell or sounded the whistle for the distance of eighty rods, there is also great contradiction in the record. All admit that the danger signal was given by the engineer shortly before striking the wagon. Many witnesses swear that, being near enough to hear the bell or the sound of the whistle, they heard nothing until the danger signal was sounded close to the crossing. On the contrary, many, and perhaps more, witnesses testify for the defendant, that the whistle was sounded for the crossing, and that the bell was rung until the crossing was reached. The proof tends to show (and it is not contradicted) that these boys were accustomed to driving and handling these and other horses and driving the teams by themselves, and that they were competent to do so under ordinary circumstances, and that this was a gentle and quiet team. We do not think the father was guilty of such negligence (even if any want of care can be attributed to him) in allowing his sons to go on the errand on that fatal day as would prevent his recovery on that ground. Children, if not too young, have a right to go on the public highways, and parents may send them upon reasonable errands without forfeiting their right to the ordinary protection which the law guarantees to adults under like circumstances.

After a careful consideration of the evidence in this record, we can not say that the verdict of the jury is so manifestly against the weight of the evidence as to require our intervention to set it aside.

We can see nothing in the record which would probably produce a different result on another trial. If? under the facts, appellee was entitled to recover, the amount of the verdict is not unreasonable. We think there is nothing in the objection that the damages are excessive. The Supreme Court of this State have decided so often that the question of damages in cases of this' kind rests in the sound discretion and judgment of the jury that we do not deem it necessary to discuss it or cite authorities in its support.

It is also objected that the court erred in allowing the speed of the train to be shown. This was clearly right. It was a part of the res gestos.

It is also objected that the court erred in refusing to allow appellant to prove the financial condition of appellee. We are unable to see the force of this objection, either for the purpose of showing a want of care on the part of appellee or for the purpose of mitigating damages or defeating the action.

The next objection urged is that the court erred in giving and refusing instructions. Six instructions were asked and given on motion of the plaintiff. We think they fully and correctly state the law .of the case and are not open to the criticism made against them. The appellant submitted and asked the court to give thirty-four instructions to the jury on its part. The court refused nine, modified three, and, gave the remaining twenty-two as requested. In these twenty-two instructions given as asked, and the three given as modified, we think every legal right of the appellant was fully and clearly given to the jury and that it can have no right to complain on the ground of instruction. We see no error in this record and the judgment is affirmed.

Judgment affirmed,.

Judge Upton, having tried this case in the court below, took no part in the decision.


text:
    Ernest Treishel v. David McGill.

      Practice — Presumption.
    In the absence of a bill of exceptions the presumptions as to matters delm-s the record are in favor of the verdict and judgment.
    [Opinion filed July 20, 1888.]
    Appeal from the Circuit Court of Iroquois County; the Hon. Alfred Sample, Judge, presiding.
    Messrs. Kay & Evans, for appellant.

      Messrs. R. W. Hilscher and T. B. Harris, for appellee.
   Per Curiam.

In this case, on motion, the bill of exceptions was stricken from the record by order of this court. [Ante, p. 68.] The errors assigned and the points argued by counsel for appellant raise questions of law and suggest reasons for reversal alone based on the evidence and instructions and matters dehors the record, taking place at the trial.

As there is now no bill of exceptions in the record, we are unable to determine whether those points are well taken or not. The presumptions are in favor of the verdict and judgment.

Judgment affirmed.