text:
    Irving Greenspahn, Administrator of the Estate of Jacob Yocholis, Deceased, Appellee, v. Abraham Ehrlich, Appellant.
    Gen. No. 37,368.

      Opinion filed October 24, 1934.

      Louis A. Cohan, for appellant.
    Isador Becker, for appellee.
   Mr. Justice Wilson

delivered the opinion of the court.

Action in replevin by mortgagor to recover possession of personal property seized by the defendant without right and afterwards retained under a claim of an assignment of a note and a chattel mortgage given as security for the note.

January 4, 1932, Jacob Yocholis executed and delivered his promissory note for $300 to the Federal Loan Corporation of Chicago in payment of a Chrysler sedan automobile and at the same time executed the chattel mortgage in question to secure the payment of said note. The note became due by its terms but the Federal Loan Corporation took no steps to recover the property under the chattel mortgage.

Yocholis died March 20, 1933. At the time of his death the automobile was in a garage at Ogden and St. Louis avenues, Chicago, Illinois, of which the' deceased was the proprietor. About two days after the death of Yocholis, the defendant Ehrlich took possession of the car and removed it from the garage. At this time Ehrlich was a stranger to the transaction and had no right or title to the car nor did he have the right to possession.

Greenspahn, the administrator of the estate of Yocholis, was appointed as such on June 7, 1933, by the probate court of Cook county and on June 8th made a demand on Ehrlich for the return of the Chrysler sedan, which was refused. At the time of this demand Ehrlich still had no right or title to the sedan, nor did he have the right to possession. Subsequently, on June 22, 1933, Ehrlich paid the amount due on the note executed by Yocholis in favor of the Federal Loan Corporation and secured from that company an assignment of the note and of the chattel mortgage.

The cause was tried by the court without a jury and a judgment was entered for the plaintiff finding the right of property in him, as administrator, with the right to maintain possession. From this judgment the defendant has appealed.

The defendant insists that upon procuring the assignment of the note and chattel mortgage he became entitled to all the rights of the original mortgagee, and having possession of the property was entitled to retain it by reason of the chattel mortgage.

Plaintiff contends on the other hand that the defendant did not procure possession of the property by reason of the chattel mortgage, peaceably, or in the manner provided by law and has not since that time or at any time taken possession under the chattel mortgage. Plaintiff also insists that the defendant’s right is nonexistent as against the administrator of the estate who is maintaining this action for the benefit of the heirs and creditors of the estate.

We agree with the defendant that under an assignment of the note and mortgage, he became entitled to all the rights of the original mortgagee. Robinson v. Huschle, 233 Ill. App. 519. Moreover, while the rule is different in a number of States, it appears to have been held in numerous cases in this State that an administrator acquires the exact interest of property owned by the deceased at the time of his death and that such property is subject to liens thereon as between the parties. Kinder v. King, 180 Ill. App. 62.

The question for consideration, in our opinion, is narrowed down to the proposition as to whether or not a stranger to the transaction has the right to seize property and insist upon its retention under an assignment subsequently acquired and after a demand by an administrator entitled at the time to its possession. At the common law, the property under a chattel mortgage was turned over to the mortgagee as security for the debt. In this State, however, provision is made by statute for the retention of the property by the mortgagor or mortgagee entitled to protection upon the recording of his chattel mortgage. Begardless of the statute, however, as between the parties, the mortgagee has a right to obtain possession of the property peaceably or by a proper proceeding after maturity of the indebtedness and before the intervening of the rights of others.

The mortgage in this case provided among other things that if the mortgagee, its successors or assigns shall feel itself unsafe or insecure, mortgagee may seize the property wherever found and sell the same at the expense of the mortgagors, in the manner provided by law.

As a general rule title to property upon the giving of a chattel mortgage passes to the mortgagee. This title, however, has been qualified and the correct interpretation as enunciated in Barchard v. Kohn, 157 Ill. 579, is as follows:

“The chattel mortgage here provides, that, in case of default in payment or in any of the other conditions of the mortgage, the mortgagee shall have the right to take immediate possession of the property, and may sell the same and out of the proceeds of sale, after paying the costs and debt secured, shall render the surplus, if any, to the mortgagor. Although the naked legal title, after condition broken, vests in the mortgagee for the purpose of obtaining possession and applying the proceeds of the sale of the property to the payment of the debt, yet the requirement, that the surplus proceeds be paid to the mortgagor, shows that the absolute, and exclusive ownership is not-in the mortgagee. On the contrary, this requirement indicates, that even the enforcement of the mortgage by seizure and sale under the power therein contained proceeds upon the idea, that the rights of an owner still remain with the mortgagor to a certain extent. ’ ’ This right to take possession, however, has never been extended to the right to take forcibly or by a stranger to the mortgage. The holder of a chattel mortgage after default has three remedies which he may pursue separately or concurrently. These remedies are: an action at law to recover the debt; an appropriate action to recover the mortgaged property; and a foreclosure of the mortgage. Barchard v. Kohn, 157 Ill. 579.

The rule is laid down in Jones on Chattel Mortgages, 2nd Edition, sec. 705, p. 579, wherein it says:

“705. Upon default the mortgagee is entitled to take peaceable possession. But the law will not allow him to commit, or to threaten, a breach of the peace, and then to justify his conduct by a trial of the right of property. Instead of using force the mortgagee must resort to his legal remedies. The mortgagee becomes a trespasser by going upon the premises of the mortgagor, accompanied by a deputy sheriff, having no legal process and taking possession without the active resistance of the mortgagor. To obtain possession under such a show and pretense of authority is to trifle with the obedience of citizens to the law and its officers. A provision in the mortgage authorizing the mortgagee upon default to take possession of the mortgaged property ‘as his own property, and without any process of law,’ confers no authority upon him, or upon an officer acting for him, to take it otherwise than peaceably.”

In the case of Singer Mfg. Co. v. Rios, 96 Tex. 174, 71 S. W. 275, 60 L. R A. 143, 97 Am. St. Rep. 901, it was held that the mortgagee having taken possession of a sewing machine, it was entitled to retain the same even though the taking was not by a foreclosure proceeding and was without the consent of the mortgagor. That action, however, was one for damages brought by the mortgagor by reason of the wrongful taking and in that case the taking was by the mortgagee and not by a stranger. There was at least a color of right, and the mortgage contained a clause that the mortgagee could take possession upon a breach.

In the case of McClure v. Hill, 36 Ark. 268, it appears that possession was taken under a void writ. The mortgagor brought an action for damages and recovered. The court in that case held that the taking was wrongful and that the mortgagee was not entitled to protection in any action against him. The court in its opinion says:

‘ ‘ The taking by force was not justified by the mortgage. The legal title was doubtless in McClure & Morris, with the right of possession, but they could only take it peaceably. ' They could not right themselves by their own strong hands; and, as above said, the taking by their agent, the constable, was equivalent to force.” •

At the time the administrator in the action at bar made his demand for possession, he was entitled to the property. At this time the defendant had tio right or title to the automobile. The fact that the defendant subsequently acquired title, and before the bringing of the suit, in our opinion does not alter the situation. Even up to the time of the trial the defendant had made no demand upon the administrator for the payment of the debt, nor had the defendant taken any steps in and about the sale of the property as provided by law. Neither did the defendant start any foreclosure proceeding or any action at law for the purpose of enforcing his lien, if any. He had done nothing to reduce the property to legal possession nor had he taken possession peaceably. At the time he took the automobile he was a trespasser and the taking was a wrongful conversion.

The action of replevin is not one in which the question of title is involved, but is a possessory action only. This suit is one in replevin and the only question before this court is whether or not the administrator, as against the defendant, is entitled to possession of the automobile. Courts should not recognize rights which are acquired by force and contrary to law and ethics and a claim based upon such facts should not receive great consideration when presented for determination.

Under the circumstances in this case we are of the opinion that the judgment of the municipal court was correct in finding that the right to possession was in the administrator of the estate and, for the reasons stated in this opinion, the judgment of the municipal court is affirmed.

Judgment affirmed.

Hebel, P. J., and Hall, J., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice O’Connor

license: Public Domain

text:
    Arthur Eick, Appellant, v. Julia Eick, Appellee.
    Gen. No. 37,511.

      Opinion filed October 29, 1934.
    Rehearing denied and opinion slightly modified November 9, 1934.
    Dunn & Fumel, for appellant; Max Dunn and Samuel Fumel, of counsel.
    Eugene P. Meegan, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

December 5, 1933, Arthur Eick filed his verified bill for divorce against the defendant, alleging that on November 29, 1932, she deserted him. She answered, denying the desertion, and afterward filed a cross-bill praying for separate maintenance in which she charged that her husband wilfully deserted her on November 29, 1932. He filed an answer denying the charges, and after the issues were made up the court heard the evidence, found in favor of the wife, awarded her the custody of their three-year-old child and decreed that he pay her $12 a week for the support of herself and the child. Complainant and cross defendant appeals. For convenience he will hereinafter be referred to as complainant.

1. Complainant contends that the Honorable Boman E. Posanski who heard the case and entered the decree had no jurisdiction to hear the cause because it was not assigned to him in accordance with the rules of the circuit court of Cook county, and considerable argument is indulged in to the effect that the case was first before Judge LaBuy of the circuit court of Cook county, and on January 31, 1934, an order was entered by Judge LaBuy setting the cause for hearing on February 7, 1934, in room 1123 County Building.

There appears in the record a motion of complainant on March 2nd, immediately following the entry of the decree, in which complainant objects to the jurisdiction of Judge Posanski to enter the decree on the ground that the cause had not been assigned to him by the executive committee of the circuit court of Cook county, and another motion at the same time that Judge Posanski had not been assigned to hear cases in Cook county.

The placita states that Judge Posanski is a judge of the city court of Calumet City, Illinois, holding a branch of the circuit court of Cook county at the request of the judges of the circuit court of Cook county. The decree was entered by Judge Posanski March 1,1934, and there is nothing in the record to contradict the placita. This shows that Judge Posanski had jurisdiction of the cause. The mere making of the motion after the decree was entered is wholly insufficient to show that the cause was not properly before him.

2. A further contention is made by counsel for complainant that at the close of complainant’s case defendant made “A motion for a directed verdict and to dismiss the complainant’s cause”; that the court denied the motion and therefore a decree should have been entered in favor of the complainant because his evidence warranted such decree. There is 'nothing to sustain complainant’s contention except a written motion made by him after the entry of the decree, which recites that at the time of the entry of the decree complainant moved the court to enter a decree in his favor and to dismiss the cross-bill on the ground that after the introduction of all of complainant’s evidence, the defendant’s solicitor moved “for a directed verdict and for a dismissal of said original bill of complaint,” which motion was denied. Obviously this written motion entered at the time of the entry of the decree does not prove itself, and there being no certificate of evidence or report of the trial in the record, we must rely on the facts stated in the decree. It recites that the cause came on to be heard on the bill and cross-bill and evidence taken before the chancellor. There is nothing in the record which would overcome the recitals in the decree. There is no merit in the contention.

3. It is next contended that the court erred in not disposing of the original bill before entering the decree granting relief on the cross-bill. It is true that the proper practice would have been to dismiss the original bill for want of equity before entering the decree on the cross-bill, but this is substantially what was done. Neely v. Neely, 223 Ill. App. 168. Complainant in his bill charged that on November-29, 1932, defendant deserted him without cause. The defendant and cross complainant, in her cross-bill charged that her husband deserted her on the same day, November 29, 1932. The decree recites that the cause came on to be heard on the bill and cross-bill and the evidence, and the court found the equities were with the defendant and that complainant had been guilty of wilful desertion. This, in substance, was a finding that complainant’s bill was without equity. While the record is not technically accurate, it is sufficient.

4. Counsel for complainant further contend since the statute on separate maintenance provides that the suit must be brought in the county where the husband resides, or if he abandons his wife without fault on her part, and removes to another county in this State, then suit may be brought by the wife either in the county where they resided at the time of such abandonment, or in the county where the husband resided at the commencement of the suit. (Pars. 22 and 23, chap. 68, Cahill’s 1933 Statutes.) And counsel say that in the instant case “the cross-bill by the defendant for separate maintenance does not allege venue of the complainant and cross defendant ’ ’; that the residence of the complainant is essential and therefore the decree is erroneous and cannot stand since there is no certificate of evidence or report of the trial in the record. Complainant in Ms verified bill for divorce swears that he is a resident of Cook county, Illinois, and that he has been such resident for more than a year immediately preceding the filing of his bill. Defendant in her cross-bill alleges that she was and has been for more than one year last past immediately preceding the filing of her cross-bill, a resident of the City of Chicago, County of Cook and State of Illinois. While there appears to be no specific allegation in the cross-bill as to the residence of the complainant, it does recite the filing of the bill of divorce by the complainant and admits that the parties were married in Chicago as alleged in complainant’s bill. In these circumstances, we think the objection is hypercritical and without merit.

5. A further point is made that the court should have granted complainant a change of venue in accordance with the petition he filed. In support of this it appears in the brief of counsel for complainant that the petition for a change of venue was not filed until after the hearing of the cause but before the decree was entered by the chancellor. The record discloses that the petition was presented after the close of all the evidence and after the chancellor had made his finding. It is obvious that the petition came too late. If it were permissible to file a petition for a change of venue after the evidence is all heard and the court has announced his decision, then there might never be a decision in any case because the party who was defeated could then present his petition for a change of venue. Obviously, this is not the law. The petition, not being presented in time, was properly denied.

6. It is further contended that a decree for separate maintenance must contain findings of the ultimate facts, or there must be a certificate of evidence which will sustain the decree. And it is argued that since there is no certificate of evidence or report of the trial, the findings of the decree are insufficient. This was the law prior to January 1, 1934, but on that date the new Civil Practice Act went into effect, and par. 3 of sec. 64 of that Act (chap. 110, p. 2158, Cahill’s 1933 Statutes) provides: “No special findings of fact or certificate of evidence shall be necessary in any case in equity to support the decree.” This makes chancery proceedings the same as actions at law. If complainant desires to raise the question of the insufficiency of the decree which has gone against him, he must preserve the evidence. The evidence not being preserved, the contention cannot be sustained.

7. The court awarded cross complainant $50 as and for her solicitor’s fees and decreed that complainant and cross defendant pay $12 a week for the support of the defendant and the minor child. Complainant contends that there is no finding in the decree that complainant has the ability to pay these sums, nor is there any finding that the wife has not sufficient funds to support herself and child, and further that there is no finding that the services rendered by solicitor for defendant and cross complainant were reasonable. These points cannot be availed of since the complainant did not preserve the evidence under the provisions of the statute above quoted.

8. Complainant also contends that the failure of the defendant to file notice of appearance in the trial court “is an admission and confession of the errors contained in all of the pleadings and proceedings in the cause”; and that Rule 35 of the Supreme Court requires one who has been served with notice of appeal to file his appearance in the trial court within 10 days after receiving such notice, and that no such appearance appears in the record. Rule 35 of the Supreme Court provides that “Bach appellee . . . shall within 10 days after service of notice of appeal, serve a notice of appearance upon each party or attorney or firm of attorneys who signed the notice of appeal and file a copy thereof in the lower court”; and “(3) Any appellee who fails to serve and file a notice of appearance shall be deemed in default,” we think was inserted in the rule through an inadvertence and is not mandatory. (People v. Davis, 357 Ill. 396.) We see no reason why one who files a case in the trial court should enter his appearance in that case where an appeal has been taken by the other side. His appearance is already in the case. But in any event, the rule does not say that where an appellee fails to file his appearance the decree will be reversed. The rule simply says that he shall be deemed to be in default, but this does not require a reversal of the decree if the record discloses that it has been properly entered.

The decree of the circuit court of Cook county is affirmed.

Decree affirmed.

McSurely and Hatchett, JJ., concur.


author: Mr. Justice McSurely

text:
    The First National Bank of Chicago, Complainant, v. 10 West Elm Street Building Corporation et al., Defendants. Appeal of 10 West Elm Street Building Corporation, Appellant, v. The First National Bank of Chicago, Appellee.
    Gen. No. 37,772.
    Opinion filed October 29, 1934.
    Defrees, Buckingham, Jones & Hoffman, for appellant; Vincent O’Brien and John Merrill Baker, of counsel.

      Sonnenschein, Berkson, Lautmann, Levinson & Morse, for appellee; David Levinson and Charles D. Satinover, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Defendant appeals from an interlocutory order appointing a receiver of its premises in a foreclosure proceeding.

The bill filed January 18, 1933, alleged that defendant borrowed $800,000, evidenced by a series of first mortgage bonds secured by a trust deed on an 18-story building containing apartments, office space and six stores; that interest and instalment of principal were due and unpaid and also taxes for 1929 and 1930, aggregating over $45,000. The trust deed pledged as security the real estate, building, rents, issues and profits thereof. The complainant, trustee, asked for the appointment of a receiver, which motion was continued from time to time.

The cause went to a decree, which found that there were defaults in payment of some of the bonds and interest coupons; that there were unpaid general taxes levied and assessed against the property, and that there was due on the bonds and coupons over $926,000. Subsequently, and before sale, the receiver was appointed, of which the defendant complains.

Counsel for the defendant argues with force against the validity of certain proceedings before a master in chancery touching the necessity of a receiver, to which complainant replies, admitting this invalidity.

Complainant stands on the record which is before us, which consists of the bill of complaint, defendant’s answer thereto, complainant’s application for the appointment of a receiver and the orders continuing this application and the decree of foreclosure and sale, which finds all the issues against the defendant, reserving jurisdiction to hear and determine the pending motion for the appointment of a receiver. The record also contains a petition of defendant subsequently filed, asking the chancellor to vacate the order appointing a receiver, which petition was denied. Complainant properly says that the appeal now before the court is only from the order appointing the receiver and not upon any action of the chancellor upon this petition to vacate the order.

Defendant says that, notwithstanding a deed of trust pledges the rents as part of the security, a receiver should not be appointed solely upon this fact; that evidence should be presented to the chancellor to justify the appointment of a receiver. The record before us recites that the motion for a receiver came on for hearing before the court, which heard the arguments of counsel and the evidence presented with respect to said motion, and the court found that the premises described are inadequate security for the payment of the bonds secured by the trust deed and that the premises are worth less than the mortgage indebtedness, and that it was necessary that a receiver be appointed to take charge and possession of the premises.

There is no certificate of evidence filed in this case. The only thing presented is the record and it must speak for itself. The order says that the court heard evidence at which counsel for defendant was present. As far as the record shows, no objection was made to the appointment. These findings of fact in the absence of anything in the record contradicting them are sufficient to sustain the appointment of a receiver. Coleman v. Mulcahey, 334 Ill. 64; Anderson v. Anderson, 339 Ill. 400; Feyerabend v. Feyerabend, 312 Ill. 559; Szarowicz v. Szarowicz, 338 Ill. 481; Arnoldsville Bldg. & Loan Ass’n v. Dempsey, 339 Ill. 304. The action of the chancellor will be presumed to be regular unless the contrary is made to appear from the record. Hopper v. Mather, 104 Ill. App. 309.

Under the Civil Practice Act now in force, the burden of preserving the evidence is upon the person attacking the order or decree. Chap. 110, sec. 64 (subsec. 3) Illinois Statutes (Cahill) 1933, ¶ 192. Also, all matters before the trial court shall be certified by the judge. Chap. 110, sec. 74 (subsec. 2) Illinois Statutes (Cahill) 1933, ¶ 202. As we have said, there is no certificate of the judge in the present record.

If the order appealed from does not speak the truth it should have been corrected on motion.

We see no sufficient reason to disapprove the order, and it is affirmed.

Order affirmed.

O’Connor, P. J., and Hatchett, J., concur.


text:
    Chicago Title and Trust Company, Appellee, v. Benjamin Moore and Company et al., Appellants.
    Gen. No. 37,452.
    Opinion filed November 5, 1934.

      England & O’Toole, for appellant Benjamin Moore & Co.
    Benjamin E. Cohen, for appellant Albert J. Horan.
    George Gillette and Edmund J. Reynolds, for appellee; Harold L. Reeve, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

The Chicago Title and Trust Company, as trustee, the ovmer of a piece of real estate in Cook county, filed its bill to restrain the levying of an execution on the real estate. The execution was issued on a judgment entered in the municipal court of Chicago in favor of Benjamin Moore & Co. against the Casa Bonita Building Corporation. A general demurrer which was filed to the bill was overruled, defendants elected to stand by the demurrer, and a decree was entered in accordance with the prayer of the bill, and the defendants appeal.

The record discloses that on October 27, 1928, judgment by confession was entered in the municipal court of Chicago in favor of Benjamin Moore & Co., against the Casa Bonita Building Corporation for $5,133.34. Afterward the judgment, on motion, was opened up and leave given to defend. The defendants filed their affidavit of merits and there was a trial before the court without a jury which resulted April 27, 1929, in a finding and judgment in defendants ’ favor and plaintiff appealed to this court. Upon consideration by this court, the judgment was reversed and the cause remanded January 27, 1930. (Benjamin Moore & Co. v. Casa Bonita Bldg. Corp., 255 Ill. App. 638.) Afterward, November 23, 1931, there was a retrial of the case and a finding and judgment in plaintiff’s favor for $5,950. March 23, 1932, an order was entered by the municipal court which purported to correct its judgment of November 23, 1931, and to confirm the judgment for $5,133.34 of October 27, 1928.

October 27, 1928, when the judgment by confession was entered against the Casa Bonita Corporation, as above stated, the Casa Bonita Corporation owned the real estate involved in this suit. December 16, 1929, the Casa Bonita Corporation conveyed the property to Philip Banovitz, and by other mesne conveyances the title was conveyed to plaintiff January 27, 1932.

It is complainants’ contention that the lien of the judgment on the property in question was removed April 27, 1929, when the court first heard the case on its merits and found against the plaintiff. On the other hand, it is the contention of plaintiff that the judgment entered by confession October 27, 1928, was confirmed March 23, 1932, and this revived the judgment against the property and it could not be conveyed free of the lien.

After the judgment was opened up and defendants given leave to plead, they filed their affidavit of merits and there was a hearing which resulted in defendants’ favor. The judgment of $5,133.34, entered by confession, was “vacated and set aside and for naught esteemed, and the plaintiff take nothing by this suit, and that the defendant have and recover of and from the plaintiff the costs by the defendant herein expended and that execution issue therefor.”

We think it obvious that this judgment wiped out the judgment theretofore entered by confession, that it was no longer a lien on the property, and that the conveyance of the property was free and clear of the lien. 2 Freeman on Judgments, 5th Ed. p. 2079. A lien of a judgment upon lands is conferred by statute. Green v. Marks, 25 Ill. 221. Sec. 1, chap. 77, Cahill’s 1933 Statutes, provides that a judgment of a court of record on land not registered under the Torrens Act shall be a lien on the real estate of the person against whom it is obtained within the county for which the court is held, from the time the judgment is rendered or revived. As stated, the judgment of April 27, 1929, specifically vacated and set aside the judgment by confession entered October 27, 1928, and judgment was entered in favor of the defendants. This wiped out the judgment by confession, and the fact that an appeal was prosecuted and a subsequent trial had did not affect the transfers of the real estate which were made in good faith in the interim. The parties had the right to rely upon records, and the record showed there was no judgment against the property because there was no judgment against the owner of it, the Casa Bonita Corporation, when it conveyed the property to Banovitz.

The decree of the circuit court of Cook county is affirmed.

Decree affirmed.

McStjrely and Matchett, JJ., concur.


text:
    Mary Wisz, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 37,470.

      Opinion filed November 5, 1934.
    Hoyne, O’Connor & Rubinkam, for appellant.
    Irving Block and Abe J. Cohn, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

February 26, 1931, the defendant Insurance company issued its certificate, under the terms and conditions of a group policy of insurance, to George Wisz, an employee of the Interlake Iron Corporation, whereby the defendant Insurance company agreed to pay plaintiff, Mary Wisz, wife of the insured, $1,500 if the death of her husband occurred while he was in the employ of such employer and while the group policy was in force. It also provided for the payment of total and permanent benefits.

George Wisz, the insured, worked as a laborer for his employer to and including October 30, 1931, when he was laid off because the employer was reducing his force. About five weeks thereafter, December 9, 1931, George Wisz was examined by a physician and found to be suffering from an advanced stage of pulmonary tuberculosis, from which he died August 1, 1933. He never worked after October 30, 1931. September 18, 1933, plaintiff brought suit on the certificate to recover its face, $1,500. There was a trial before the court without a jury, and a finding and judgment in plaintiff’s favor for the amount of her claim, and defendant appeals.

Defendant contends that there is no liability because the insured was not employed by the Interlake Iron Corporation after October 30, 1931; that the policy was canceled on that date; and that there was no liability under the policy unless the employee became totally and permanently disabled while in the employ of the Interlake Iron Corporation.

On the other hand, plaintiff’s position is that George Wisz was afflicted with consumption while in the employ of the Interlake Iron Corporation, which disease “rendered him totally and permanently disabled prior to October 30, 1931”; that on that date he was “laid off”; that this did not terminate his employment; that under the terms of the policy he was entitled to receive monthly instalments which were never paid to him, and therefore plaintiff, the beneficiary in the certificate, is entitled to all the unpaid instalments in accordance with the terms of the policy; that the policy was never properly canceled.

The policy in question, like all insurance policies whether fire, life or indemnity, that it has been our duty to pass upon over a period of years, is long, involved and confusing. We have heretofore condemned the use of long policies in the case of Kiefer Tanning Co. v. Alliance Ins. Co., 266 Ill. App. 362, which involved the construction of a fire insurance policy. We there said (p. 374):

“Why an insurance policy should not all be written on one page we are unable to understand. Certainly a policy of that length could be so drawn as to contain all the essential elements required to make a clear and concise contract.”

And in addition to the lengthy and involved printed policy, the defendant Insurance company in naming the beneficiary has made use of the confusing fad, “and/or,” which this court and other courts have condemned. Preble v. Architectural Iron Workers’ Union of Chicago, 260 Ill. App. 435; Tarjan v. National Surety Co., 268 Ill. App. 232; Thibodeaux v. Uptown Motors Corp., 270 Ill. App. 191; Putnam v. Industrial Commission, 80 Utah 187; Clay County Abst. Co. v. McKay, 226 Ala. 394; Irving Trust Co. v. Rose, 67 F. (2d) 89; Ex parte Iratacable,—Nev.—, 30 P. (2d) 284.

In the Putnam case, supra, the Supreme Court of Utah held that the misuse of the words “and/or” in the findings and judgment of the court rendered the findings and judgment so uncertain and indefinite as to require a reversal of the judgment.

In the instant case the certificate issued to George Wisz by the defendant Insurance company provided that the Insurance company would pay Mary Wisz $1,500 if the death of her husband occurred “while the Employee is in the employ of the Employer and while said Group Policy is in force. . . .

“The said Group Policy provides Total and Permanent Disability Benefits as described on the last page hereof”; and on the last page the certificate provides, “Under the terms of the Group Policy ... an Employee shall be considered totally and permanently disabled who furnishes due proof to the Company that, while insured thereunder and prior to his 60th birthday, he has become so disabled, as a result of bodily injury or disease, as to be prevented permanently from engaging in any occupation and performing any work for compensation or profit.

‘ ‘ Three months after receipt of such proof the Metropolitan Life Insurance Company will commence to pay to such Employee, in lieu of the payment of the insurance under said Policy at his death, equal monthly instalments, the number and amount of such instalments to depend upon the amount of insurance in force on the life of such Employee at such date, as shown in the following table: . . .

Amount of Number of Amount of Each
Insurance Instalments Instalment
$1500 60 $27.00 * # *

“Such instalment payments will be made only during the continuance of such disability.

“In the event of the death of the Employee during the period of total and permanent disability,, any instalments remaining unpaid shall be commuted at three and one-half per centum per annum and paid in one sum or in instalments, to the designated Beneficiary. In the event of the recovery of the Employee from such disability before all instalments shall have been paid, payment of such instalments on account of such Employee shall cease. Insurance on the life of such Employee shall then be revived but shall be limited in amount to the commuted value at three and one-half per centum per annum of the instalments then remaining unpaid. ’ ’

The group insurance policy issued by the defendant to the employer of George Wisz provides for the payment of premiums monthly by the employer to the Insurance company, a certain portion of which is charged to the employee, and that “The payment of any premium shall not maintain the insurance under this Policy in force beyond the date when the next premium becomes payable, except as provided in the next paragraph.

“A grace of thirty-one days without interest charge will be granted to the Employer for the payment of every premium after the first, during which period the insurance shall continue in force. ’ ’ The policy further provides for the discontinuance of the insurance where the employee is no longer employed by the insured and the employer agrees to report to the Insurance company, in writing, not later than the 21st of each month, all former employees who are no longer covered by the insurance. “Lay-off or Leave of Absence of six months or less, shall not be considered, ... a termination of employment within the meaning of this Policy unless notification to the contrary shall have been given by the Employer to the Company within ten days after the date when such Lay-off . . . shall have commenced. . . .

“13. Total and Permanent Disability Benefits. —Upon receipt at its Home Office in the City of New York, of due proof that any Employee, while insured hereunder, and prior to his sixtieth birthday, has become totally and permanently disabled, as the result of bodily injury or disease, . . . the Company will waive the payment of further premiums as to such Employee and three months after receipt of such proof, will commence to pay, in lieu of the payment of insurance at his death, monthly instalments . . . ■to the said Employee or to a person designated by him for the purpose.”

The undisputed evidence shows that George Wisz was laid off October 30, 1931, and under the express provision of the policy above quoted, his lay-off did not terminate his employment within the meaning of the policy unless the employer gave notice to the Insurance company to the contrary within 10 days after the lay-off. No such notice was given within the 10 days, but appears to have been given December 7, 1931. December 9, 1931, about six weeks after Wisz was laid off, he was examined by a physician who found him suffering from consumption, and that he was totally unable to work for more than one month prior to that date.

From this it appears that George Wisz was totally and permanently disabled before his employment terminated, and therefore the policy was in effect. And since he continued to be totally and permanently disabled until he died August 1, 1933, the Insurance company was liable under the policy to pay to him during his lifetime $27 a month, and after his death to pay to his widow, the beneficiary named in the certificate, the remainder of the 60 instalments. The provision of the certificate above quoted, that payment of the instalments “will be made only during the continuance of said disability,” contemplates that the insured might regain his health, in which case the payments would cease, and does not apply in case of his death. The certificate from which we have above quoted provides that in the event of the death of Wisz “during the period of total and permanent disability, any instalments remaining unpaid shall be commuted at three and one-half per centum per annum.” No instalments having been paid, computing the amount of the instalments in accordance with the quotation from the certificate just made, we find that the amount of the instalments remaining unpaid under such commutation is $1,484, or $16 less than the amount of the judgment. In these circumstances, plaintiff is entitled to a judgment for $1,484.

Defendant further contends that the judgment cannot stand because the proof claiming to establish the total disability of George Wisz was not submitted until July 8, 1932; that the proof was not in accordance with the terms of the policy but consisted merely of a letter to the defendant; that “Liability under the total and permanent disability clause of the contract is predicated upon receipt of due proof that the employee, while insured, has become totally and permanently disabled.” Under the evidence in this case we think the proof was sufficient because when claim was made for payment under the certificate, liability was denied on the ground that George Wisz was not totally disabled, while he was employed by the Interlake Iron Corporation.

The judgment of the municipal court of Chicago is reversed and judgment entered in this court in favor of plaintiff and against the defendant for $1,484; costs to be paid by the defendant.

Judgment reversed and judgment entered in this court.

McSurely and Hatchett, JJ., concur.


text:
    Jay T. Corrigan, Appellee, v. Von Schill College of Chiropody and Pedic Surgery, Appellant.
    Gen. No. 37,541.
    Opinion filed November 5, 1934.
    Simon Herr, for appellant.
    Theodore Levin, for appellee; Samuel Ziv, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

On January 19,1934, plaintiff, payee of a promissory note made by the defendant for $1,600, caused judgment to be entered in his favor for the face of the note, with attorney’s fees. Execution was issued and the briefs state a levy was made on defendant’s property. January 23rd defendant filed an affidavit of merits and a verified petition praying that the judgment be vacated and it be given leave to defend. Apparently the court was of the opinion that the petition was insufficient and an order was entered continuing defendant’s motion to February 2nd and it was allowed five days within which to file an amended petition. January 26th defendant filed another verified petition and apparently the court was of opinion that this also was insufficient and on February 1st entered an order staying the execution. February 5th an order was entered giving the defendant leave to file “a second amended petition instanter,” and further gave the defendant leave to file “a third amended petition in three (3) days.’’ And on February 5th defendant filed what is designated a second amended petition, and on February 8th another amended petition. All of these petitions were verified by the president of defendant.

February 9th the court heard the matter and an order was entered denying the defendant’s motion to vacate the judgment of January 19th and the defendant excepted. February 21st defendant presented another petition verified by one of its officers other than the president, and three days later apparently presented another petition which is not in the record. At that time, February 24th, the court entered an order denying defendant leave to file the last two amended petitions. February 26th defendant filed a petition for leave to appeal to this court, and on the same day the court entered an order approving defendant’s appeal bond, and it was given 30 days within which to file a bill of exceptions. March 6th plaintiff filed “a notice of appearance in the appeal” which had been served on counsel for defendant. April 19th the court, on motion of plaintiff, entered an order dismissing defendant’s appeal because the record had not been filed in this court within the time provided by the rules of this court. April 26th defendant filed a second notice of appeal.

Plaintiff has filed a motion in this court to dismiss the appeal because the appeal had previously been dismissed by the trial court for failure of defendant to file the record in this court within the time provided for by the rules of this court.

Pursuant to section 79 of the Civil Practice Act, Ca-hill’s 1933 Statutes, page 2160, the Supreme Court, and afterward this court, established rules of practice. Par. A of Sec. 2 of Rule 1 of this court provides that “When the praecipes do not specify any proceedings at the trial, the record on appeal shall be transmitted to the reviewing court 30 days after the notice of appeal has been filed.” And Bule 10 of this court as amended provides: “The record on appeal shall be filed in the office of the clerk of this court within five days after the time specified by Buie 1 for its transmittal by the clerk of the trial court.” Buie 1 of this court provides: “Where the praecipe filed by the appellant does not specify any of the proceedings at the trial, and appellant fails to file the record on appeal in proper time, the trial court, on application of the appellee, may dismiss the appeal.”

In the instant case defendant filed its notice of appeal February 26, 1934. It would therefore be required to file its record in this court within 35 days thereafter as provided by the rules of this court, above quoted. The record, however, was not filed until April 26th or 59 days after the notice of appeal was filed. There was no report of the proceedings because the matter was heard on the verified petitions filed by defendant, and no evidence was taken. There is no provision in the rules of court for allowing a second notice of appeal, so that the second notice of appeal filed by defendant was a nullity. The record not having been filed in this court within the time provided for by the rules, the trial judge was warranted in dismissing the appeal. From this it follows that the motion of plaintiff to dismiss the appeal or proceeding' in this court must be sustained and the appeal dismissed.

While this disposes of the case in this court, we might say that the action of the trial court in holding that the several petitions filed by defendant were insufficient to warrant the court in vacating the judgment, was the only action that could be taken under the law. The petitions wholly failed to set up sufficient facts.

The motion of plaintiff to dismiss the appeal is allowed.

Appeal dismissed.

McStjrely and Hatchett, JJ., concur.


text:
    Jacob Betten and Minnie Betten, Appellants, v. Jeanette Eddy Williams et al., Appellees.
    Gen. No. 37,504.

      Opinion filed November 5, 1934.
    Rehearing denied November 19, 1934.
    Ditchburne & Lounsbury, for appellants; Charles E. Lounsbury, Harry S. Ditchburne and Philip H. Kelley, of counsel.
    Morris H. Cohen and Mark D. Cohen, for appellee Jeanette Eddy Williams; Castle, Williams, Long & McCarthy and Morris H. Cohen, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal by plaintiffs from an order of the circuit court dismissing their bill for want of equity which was entered upon motion of the defendants and a stipulation as to certain facts.

The principal controversy is concerned with the' proceeds of certain insurance policies on the life of Charles M. Eddy, deceased. Plaintiffs are the executors and residuary legatees of Mabel M. Eddy, deceased, the former wife of Charles M. Eddy, and seek to have these proceeds impressed with a trust in their favor although the policies are payable to the insured’s daughter, Jeanette Eddy Williams, hereafter called defendant. Aetna Life Insurance Company filed a general demurrer but stands ready to pay the proceeds of the policy in its company in accordance with the decree of the court.

The bill alleges that on May 17, 1928, Charles M. Eddy was solvent and on that date a decree of divorce was entered at the suit of Mabel M. Eddy, his wife, in the superior court of Cook county. The decree provides that Charles M. Eddy was to pay to Mabel M. Eddy $125,000, without interest, on or before April 1, 1938; upon the payment of this amount Mrs. Eddy was to return to Mr. Eddy all securities held by her or deposited for her benefit; Mr. Eddy was also ordered to pay her the sum of $9,000 a year in monthly instalments until $125,000 should be paid; that such monthly payments were not to be deducted from or credited upon the sum of $125,000; it was ordered that the decree shall be in full force notwithstanding either party dies; that if Mrs. Eddy should die before receipt of the full amount provided for in the decree, the balance thereof should be paid and disposed of as she may by her last will and testament direct, and if Mr. Eddy should die before all payments have been made, then the balance should be charged against his estate; he was ordered to deposit 1,000 shares of stock of B. M. Eddy Foundry Company as security for the payments ordered to be paid to Mrs. Eddy; the order contained a provision for the sale of this security in the event of a default and that upon entry of the decree all dower or other rights that each of the parties might have in the properties of the other should terminate and be annulled and each of the parties should henceforth hold and own his own property free and clear of any claim of the other whatsoever.

The bill further alleges that after the entry of this decree of divorce Charles M. Eddy conspired with defendant Jeanette Eddy Williams, his daughter, and Jean Williams, to prevent Mabel M. Eddy and her heirs, executors and assigns from collecting said $125,000, and that in furtherance of said conspiracy Eddy gave to said Jeanette Williams a large number of shares of stock in the R. M. Eddy Foundry Company and changed the beneficiary in certain life insurance policies to his daughter, and acquired other life insurance policies in which his daughter, the defendant, was named the beneficiary.

The bill alleged that November 10, 1930, Charles M. Eddy died, leaving a last will and testament, and that the daughter, defendant, was appointed executrix of his will, and that his estate is still in the course of probate in the probate court of Cook county; that subsequently, on January 31, 1932, Mabel M. Eddy died leaving her last will, in which plaintiffs are named as executors and residuary legatees; that during her lifetime Mabel M. Eddy filed in the probate court a claim for money due her in accordance with the terms of the decree of divorce against the estate of Charles M. Eddy, the deceased; this claim was not disposed of during her lifetime, but plaintiffs as her executors filed an amended claim in the probate court which was duly allowed August 31, 1933, for $135,400, on which $9,400 has been paid, leaving a balance of $126,000 due and payable on account of said claim.

The bill alleges that at the date of the decree of divorce Charles M. Eddy was solvent and well able to pay Mabel M. Eddy the sum of $125,000; that among his assets were shares of stock of the E. M. Eddy Foundry Company and a large amount of life insurance purchased by him prior to the entry of the decree of divorce; that these policies were payable to his estate upon his death and that by changing the beneficiary in these policies from his estate to his daughter, the defendant, and by subsequently investing moneys in payment of life insurance premiums upon other policies in the Aetna Life Insurance Company, also payable to his daughter, he rendered his estate insolvent. It is alleged that the stocks and securities in his estate were at the time of his death of a face value less than the claims filed against his estate, exclusive of plaintiffs ’ claim, and that the securities were worthless.

The bill asserts that defendant has collected a considerable amount of cash and securities and also moneys on account of said policies; that she is an adult of more than 21 years of age, in good health, and well equipped to provide for her own support and maintenance ; that any obligation upon Charles M. Eddy to provide for his daughter’s support after his death was secondary to his obligation to pay the money provided to be paid in the divorce decree to Mabel M. Eddy, and that the transfer of stocks and securities to the defendant and the payment of premiums on insurance for her benefit was fraudulent as to Mabel M. Eddy, and that the proceeds of said insurance became impressed with a trust in favor of plaintiffs in payment of the decreed debt. The bill charges that defendant is a spendthrift and has squandered a large part of the proceeds of the insurance policies; that neither Jeanette Eddy Williams nor Jean Williams has any assets to pay any judgment that might be rendered against them, except the property aforesaid.

The bill seeks an accounting to determine the amount of moneys received by defendant as the proceeds of life insurance policies, and asks that such amount may be impressed with a trust in favor of plaintiffs; that defendants be required to pay plaintiffs such sums as may be found due and that defendants be enjoined from disposing of any of the moneys received from Charles M. Eddy during his lifetime or from the proceeds of life insurance policies.

The motion to dismiss charged that the bill of complaint did not state a case entitling plaintiffs to the relief prayed. Upon the hearing it was stipulated that the estate of Charles M. Eddy was still pending in the probate court; that the indebtedness of his estate was approximately $300,000, including the claim of plaintiffs of $125,000, and the claim of the defendant Jeanette Eddy Williams of $119,000, and that the face value of the securities in the estate amounted to $308,000. After hearing the chancellor ordered that the bill be dismissed for want of equity.

All parties have treated this as a creditors ’ bill, and defendants argue that the bill fails to show that plaintiffs have pursued or exhausted their legal remedies, and that under the rule in this State such showing must be made before a creditors’ bill can be maintained. Strauss v. Phillips, 189 Ill. 9; Goodman v. Kopperl, 169 Ill. 136. Plaintiffs’ claim was allowed in the probate court August 31, 1933, and the estate is still pending there. The instant bill was filed October 4, 1933, shortly after the claim was allowed. The bill does not allege that the estate of Charles M. Eddy was exhausted, that distribution has been made or the estate declared insolvent. The statute, chap. 3, sec. 129 (Cahill, ¶ 131) directs the probate court, upon finding an estate insolvent, to enter an order of insolvency. Apparently no such order has been entered. The chancellor found that plaintiffs had not exhausted their remedies in the probate court, nor was it shown that when the estate is wound up there would not be sufficient to pay the creditors. This finding of the chancellor was justified.

We are also of the opinion that the chancellor properly found that the allegations of conspiracy and fraud were insufficient. There is much language in the bill asserting that the defendants and Charles M. Eddy conspired to prevent Mabel M. Eddy from collecting the amount provided for her by the divorce decree, and that he provided for his daughter by life insurance policies which were in fraud of the rights of Mabel M. Eddy and thus rendered his estate insolvent. But in view of the allegations of the bill and stipulation of facts, such words are merely a statement of conclusions without any foundation of fact. It is well settled that facts showing a conspiracy or fraud must be stated in the bill. Doose v. Doose, 300 Ill. 134; Felt v. United States Mortgage & Trust Co., 231 Ill. App. 110. And where facts stated in a bill are not such as to amount to fraud a demurrer thereto does not admit fraud, and the allegations of fraud are construed most strongly against the pleader. Wandschneider v. Wandsohneider, 282 Ill. 286. It is a reasonable conclusion from the record that Charles M. Eddy was wealthy and that after settling upon his divorced wife a large sum of money, with securities deposited to insure the payment of this sum, he naturally and properly undertook to provide for his daughter.

The stipulation of facts does not show that the creditors will not-receive the amount of their claims; in fact the affirmative showing is to the contrary. The allegations of the bill that the assets of Mr. Eddy’s estate are practically worthless — worth only 10 cents on the dollar — is a clear conclusion.- No attempt is made to value the stocks and securities.

It should be noted that the defendant Jeanette Eddy Williams paid to certain creditors of her father a considerable sum so that equities in securities pledged by him could be preserved for the benefit of the creditors of his estate. This accounts for her claim against her father’s estate in the sum of $119,000.

A motion to dismiss a bill is treated as a general demurrer, admitting the truth only of all facts properly pleaded as distinguished from conclusions, and every allegation is to be taken most strongly against the pleader. Rosensweig v. Roitman, 266 Ill. App. 124; Leonard v. Arnold, 244 Ill. 429. The court specifically found that the allegations in the bill with reference to the claims against the estate of Charles M. Eddy and with reference to the securities in his estate fail to show that plaintiffs were entitled to the relief sought.

It is also a strong point against the position of plaintiffs that in the decree of divorce it was provided that: “Upon the entry of this decree, all dower or other rights that each of the parties hereto may have in the properties of the other shall terminate and be annulled, and each of the parties hereto shall henceforth hold and own his or her own property, free from any and every claim whatsoever, of the other.” It should be remembered that 1,000 shares of stock of the Eddy Foundry Company were deposited in escrow as security for the payment to Mrs. Eddy of the amounts provided for in the divorce decree. Apparently she was satisfied with this arrangement. Nothing is shown as to what disposition has been made of these shares of stock. It is not alleged that Mr. Eddy did anything which affected their value. The only allegation is that he did certain things with reference to the balance of his estate, which, however, the decree of divorce specifically reserved to him. The decree provided that Mrs. Eddy released all her rights in the other properties of Mr. Eddy and that Mr. Eddy could own his property and convey it as he wished. Agreements of this sort have been held valid. Crum v. Sawyer, 132 Ill. 443; Luttrell v. Boggs, 168 Ill. 361; Edwards v. Edwards, 267 Ill. 111; Weinebrod v. Rohdenburg, 343 Ill. 318.

Plaintiffs argne that, by the provision in the decree that any unpaid balance due Mrs. Eddy should be a charge against his estate, the moneys settled on Mrs. Eddy should, in the event of the death of Mr. Eddy, be a claim against his estate. We are not inclined to adopt this construction. Bather, it seems to us, it was the intention of the parties that Mrs. Eddy should look first to the pledged securities for the payment of the sum due her, and that after these had been exhausted, and if there was a deficiency, the balance was to be a charge against Mr. Eddy’s estate. Birney v. Solomon, 348 Ill. 410, cited by plaintiffs, involved a conveyance of real estate and it was held that the conveyance might be set aside as in fraud of creditors where it was shown that the grantor was at the time of the conveyance in shortened circumstances and became a bankrupt shortly thereafter. Such facts are absent from the instant case. None of the cases cited by plaintiffs involves a creditor whose claim has been secured.

Although respective counsel have argued at some length as to the insurance policies, we are of the opinion that the greater weight of authority supports the right of a parent to obtain insurance policies in a reasonable amount on his life in favor of a child, regardless of whether or not the insured is insolvent. In chap. 73 on Insurance, par. 342, Illinois Statutes (Cahill) 1933, it is provided that it shall be lawful for any wife to take out insurance policies on the life of her husband, and, in case of her surviving, the amounts payable on the policies shall be free from the claims of the representatives of the husband or of any of his creditors. In Cole v. Marple, 98 Ill. 58, Cole, the husband, while insolvent and one day before his death, assigned to his wife a life insurance policy payable to his estate. Upon Ms death a creditor’s bill was filed seeMng to reach the proceeds of this policy. The court held that it was not a fraudulent assignment as against his creditors, and that under the provisions of the statute, wMch should be construed liberally, the proceeds of the policies were exempt from the creditors. In Houston v. Maddux, 179 Ill. 377, Houston, while insolvent, obtained an insurance policy upon his life, payable in the event of his death to his wife. A creditor sought the benefit of the proceeds of the policy. The court held that the statute referred to is in the nature of an exemption law, to be liberally construed, and includes cases where the husband procured for his wife insurance on his own life, as he will be presumed in so doing to act for her and as her agent. Ramsey v. Nichols, 73 Ill. App. 643, involved an insurance policy for the benefit of the widow and children. The court held that the statute in question should be fairly construed to include a policy obtained by a father for the benefit of his children, saying that the trend of authority was toward the conclusion that an insolvent debtor may carry a reasonable amount of insurance for the protection of his family and that in the absence of fraudulent intent on the part of both the insured and the beneficiaries the creditors can have no right either in the proceeds of the insurance or to a recovery of the amount of the premiums paid. See also, to the same effect, Central National Bank of Washington City v. Hume, 128 U. S. 195.

Plaintiffs cite Merchants’ & Miners’ Transp. Co. v. Borland, 53 N. J. Eq. 282; Fearn v. Ward, 80 Ala. 555, and Lehman v. Gunn, 124 Ala. 213. As to the first.case, we find in Lanning v. Parker, 84 N. J. Eq. 429, the opimon states that subsequent to the opinion in the case of Merchants’ & Miners’ Transp. Co. v. Borland, supra, the New Jersey legislature enacted a statute modeled on the insurance statute of the State of Massachusetts, supporting life insurance policies in which the wife and children are beneficiaries and exempting them from the claims of creditors. The Massachusetts statute was upheld in Bailey v. Wood, 202 Mass. 549. The same can be said of the cases in Alabama, where now by statute the proceeds of insurance policies payable 'to the children may not be reached by creditors. Brasher v. Breen & Gardien Ins. Agency, 222 Ala. 585; Young v. Thomason, 179 Ala. 454.

The opinion in the recent case of Gurnett v. Mutual Life Ins. Co., 356 Ill. 612, is against plaintiffs’ position. In that case Knowlton Ames procured life insurance policies on his life the proceeds of which were to be held in trust for his heirs at law; certain creditors by bill sought to have the proceeds of these policies impressed with a resulting trust in favor of the estate of Ames, to be paid out by the executors of his will. The court held against the creditors. The opinion says: “A policy of life insurance is not deemed an asset of the estate of the insured unless it is made payable to him, his executors or administrators. The mere fact that the insured may change the beneficiary does not make the policy or its proceeds a part of his estate. Neither the policies nor their proceeds constituted a part of the estate of Knowlton L. Ames, deceased. ’ ’ In the light of this opinion plaintiffs cannot maintain their bill. The chancellor properly dismissed the bill, and for the reasons above indicated the judgment is affirmed.

Affirmed.

0 ’Courtor, P. J., and Matohett, J., concur.


text:
    Austinville Building Corporation, Appellee, v. Henry Lurie, Appellant.
    Gen. No. 37,555.
    Opinion filed November 5, 1934.
    Ditchburne & Lounsbury, for appellant; Harry S. Ditchburne and Charles E. Lounsbury, of counsel.
    Joseph E. Both, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal by defendant from an adverse judgment in an action of forcible detainer, upon the verdict of a jury.

Plaintiff relies on clause 6, paragraph 2, of the Forcible Entry and Detainer Act, Cahill’s St. ch. 57, which provides that a person entitled to possession of lands and tenements may be awarded the same “When lands or tenements have been conveyed by any grantor in possession . . . and the grantor in possession . refuses or neglects to surrender possession thereof after demand in writing by the person entitled thereto, or his agent.”

Upon the trial plaintiff showed by the testimony of Julia Ehrman that she and the defendant were the joint owners of the property in question, which was improved with an apartment building; that on December 28,1932, she and the defendant by separate instruments quitclaimed all their interest in the property to the Austinville Building Corporation, the plaintiff, which deeds were duly recorded. Defendant occupied apartment No. 406 in the building; he paid no rent for the same, and in December, 1933, demand was made upon him for the rent; he did not tender any rent at any time and made no answer to the demand for rent. In February, 1934, plaintiff through its agent demanded of defendant immediate possession of the premises occupied by him, which demand was served upon defendant in person; defendant still refusing to deliver possession, plaintiff brought this forcible detainer action.

In this court defendant presents some 14 points in an attempt to secure a reversal. None of them is sufficient for this purpose.

The agency of Julia Ehrman and her authority to act on behalf of plaintiff are questioned, but the evidence sufficiently establishes her authority.

Defendant argues that there is an absence of evidence that he was in possession at the time when the quitclaim deeds to plaintiff were executed. In the absence of evidence to the contrary it will be presumed that possession was in defendant when he jointly owned the premises and quitclaimed his interest. Ewers v. Smith, 90 N. Y. S. 575; Bardeen v. Markstrum, 64 Wis. 613; Jordan v. Jordan, 145 Miss. 779; Moyle v. Campbell, 126 S. C. 180; 22 C. J., sec. 64, p. 125. In White v. White, 105 Ill. 313, cited by defendant, the court held that the mere fact of possession in 1842 would raise no presumption of a prior possession in 1841 or in 1838, but that an inference of previous possession in the grantee could be drawn from a deed made in 1838, together with other facts. In the instant case the presumption of possession in the defendant arises from his conveyance as grantor, together with the testimony of Julia Ehrman, which indicates this possession.

The proof sufficiently identified the property as included in the legal description contained in the quitclaim deeds. In the case of Richards v. Kaplan, 274 Ill. App. 655 (Abst.), no demand for possession was made. Such a demand was made in the instant case.

Upon the trial defendant presented no evidence, and no sufficient reason for reversal is presented in this court. The judgment is therefore affirmed.

Affirmed.

O’Connor, P. J., and Hatchett, J., concur.


author: Mr. Justice Huffman

text:
    John Buffo, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 8,825.

      Opinion filed November 21, 1934.
    Early & Early, for appellant.
    Karl C. Williams, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

Appellee brought suit herein under the terms of a life insurance policy issued to him by appellant company. The policy contained what is commonly called a total disability clause, which provided that should the insured “become totally and permanently disabled as the result of bodily injury or disease occurring and originating after the issuance of said policy, so as to be prevented thereby from engaging in any occupation and performing any work for compensation or profit, . . .,” then certain benefits should accrue to the insured by the payment to him of the sum of $10 per month for each $1,000 of insurance.

The evidence discloses that appellee was engaged in the business of selling fruit and vegetables both at wholesale and retail; that while riding in his motor truck at a time when his son was driving same, the son brought the truck to a sudden stop, thereby throwing appellee against the windshield with such violence that his right hand was forced through the said windshield and severely cut and injured. The doctor who treated the injury states that certain tendons were severed, which he sutured, and then closed the wound. Subsequently, the hand and forearm became infected. The infection cleared up in about two weeks and the wound healed in about four weeks. The knuckles of the right hand were left stiff, the muscles of the hand and forearm became shrunken and weak and atrophied. The testimony of the doctor is to the effect that appellee can rotate the arm and that the elbow is all right, but the wrist, hand and forearm are weak because of atrophy. The physician attributes this to lack of motion and disuse, which he states is appellee’s fault in that he does not exercise the arm.

Upon the trial of this case in the circuit court, the jury returned a verdict in favor of appellee for $405.66. The court ordered a remittitur in the sum of $61.66 which the plaintiff accepted, and judgment was entered on the verdict in the sum of $344, from which judgment appellant brings this appeal.

Appellant insists that before appellee is entitled to a recovery under the policy in question, the burden is upon appellee to furnish the necessary proof or evidence that he is prevented, because of such injury, from engaging in any occupation and performing any work for compensation or profit. We consider this to be the controlling feature in this case. It appears that there are two general types of contracts of insurance of this nature, one of which provides for indemnity if the insured is disabled or prevented from engaging in any occupation and performing any work for compensation or profit, which policy is commonly known and designated as a total disability policy. The other kind provides for indemnity if the insured is disabled from transacting duties pertaining to the particular occupation in which the insured is then engaged. These are ordinarily styled occupational disability policies. It is generally recognized that there is a fundamental difference between these two classes of insurance and the risk that is assumed therein by the" insurer. It therefore becomes necessary to revert to the provisions of the policy in question to determine which class the same comes under.

The policy in the instant case expressly provides that in order for the insured to be entitled to the disability provision, he must because of such alleged accident or disease, “become totally and permanently disabled' . . ., so as to be prevented thereby from engaging in any occupation and performing any work for compensation or profit, . . .” It therefore is manifest that the policy in question in this case falls within the class designated as total disability policies, and not within that group termed occupational disability policies.

An examination of the record in this case discloses without controversy that the appellee confined his proof solely to that of demonstrating he was unable to perform the duties incident and necessary to that of the wholesale and retail fruit and vegetable business. There is no attempt made to show any inability to engage in any other occupation or from performing any other work for compensation or profit. Under such state of facts this court is of the opinion that appellee has not proven he is totally and permanently disabled by the alleged injury so as to be prevented from engaging in any occupation and performing any work for compensation or profit, in accordance with the terms of the policy. The construction of a similar provision was before this court in the case of Sibley v. Travelers’ Ins. Co., 275 Ill. App. 323, and there decided adversely to the contention of appellee in this case. We adhere to the position announced in that case. (Certiorari was denied in the above case.)

Formerly, the terms of policies of insurance with reference to total disability provisions varied considerably, and this produced a situation where it was difficult to formulate general rules or principles governing and applicable to all cases. Recently, conditions of this character in insurance policies have assumed a more uniform and similar nature, whereby it has become possible to establish and apply principles to such policies containing similar conditions, with more ease and uniformity.

Disability provisions in insurance policies ordinarily fall into two classes, the occupational, and those where the insured must become totally incapacitated so as to prevent his following any occupation for profit.

The policy in this case is a life policy containing a total disability clause, and it would seem, in examining the terms thereof, that the words used necessitate that the insured should be so far disabled as to prevent his following any occupation or performing any work or labor for profit.

We are not unmindful of the rule that contracts of insurance are to be construed favorably to the insured, but we do not understand this permits us to read something into the policy directly repugnant to the written terms thereof, or to alter, change, or ignore conditions and provisions of the policy, which appear to be plainly set out and over which no question of ambiguity may be said to exist.

In Bacon on Life and Accident Insurance, vol. 2, p. 1365, it is stated: “Total disability naturally means being totally disabled from all kinds of business unless by the contract the disability is to be only from the usual occupation of the assured.” (With many citations of authorities.) By this general rule most insurance policies containing disability clauses may be placed in one of the two classes, occupational, or as applied to all kinds of endeavor. We are of the opinion that the provisions in the policy sued on herein fall within the last mentioned class.

The judgment herein not being supported by the evidence this cause must be reversed and remanded.

Reversed and remmided.


text:
    Gerald B. Crandall, Administrator of the Estate of Miles Crandall, Deceased, and F. M. Hamilton, Defendants in Error, v. Lenain H. White, Plaintiff in Error.
    Gen. No. 8,849.
    Opinion filed November 21, 1934.
    B. A. Knight, for plaintiff in error.
    Smith, Menzimer & Smith, Floyd J. Tilton and John B. Hayes, for defendants in error; Lisle W. Menzimer, of counsel.
   Mr. Justice Huffman

delivered the opinion of the court.

Plaintiff in error prosecutes this writ of error from the circuit court of Ogle county, granting a foreclosure decree against certain land owned by plaintiff in error. No controversy exists as to the indebtedness for which the mortgage and notes were executed, nor the execution of said notes and mortgage. The decree was entered August 16, 1932. This writ of error was sued out August 15, 1934.

The defense interposed by plaintiff in error to the foreclosure proceeding in the trial court was that he was not seized with the property mortgaged at the time it was mortgaged, in such manner as to be able to make a valid mortgage. He urged that by virtue of a provision of his father’s will placing a restraint upon the right of alienation of said lands, he was thereby precluded from placing a valid incumbrance upon the premises.

Plaintiff in error became seized of the lands in question by virtue of a devise thereof in his father’s will. The pertinent portion of said will under which plaintiff in error interposes his defense to this foreclosure suit is contained in a codicil thereto, and consists of the following words: “I further direct that no sale be made of my real estate by those tailing the same herein until after the lapse of five years from the date of the demise of my said wife, except that the sale and purchase be made among those who take the same herein. ’ ’ The mortgage was given during the prohibitive period.

The testator made a devise of the land involved herein, in fee simple to plaintiff in error, by the third paragraph of his will. This is conceded by plaintiff in error. On page 1 of his reply brief, he makes the statement: “It may be conceded that the will in question does devise a fee to plaintiff in error.” Therefore, the only question before this court is whether the trial court erred in granting a foreclosure decree under, the terms of the mortgage.

The fee title to land carries with it the inherent power to alienate, and after a devise of land in fee by a testator to a child, a subsequent provision prohibiting the sale or incumbrance of the property devised is void. Noth v. Noth, 292 Ill. 536; Davis v. Hutchinson, 282 Ill. 523; McNamara v. McNamara, 293 Ill. 54; Gray v. Shinn, 293 Ill. 573; Muhlke v. Tiedemann, 177 Ill. 606; Jones v. Port Huron Engine & Thresher Co., 171 Ill. 501; Tiffany Real Property, vol. 1, page 52; vol. 3, page 2306; Restraints on the Alienation of Property, Gray, p. 91 et seq. The above question is so well settled that we do not consider any discussion thereof necessary.

We have examined and considered the other contentions urged by plaintiff in error, and do not find wherein the trial court committed error.

The decree of the trial court is affirmed.

Decree affirmed.


author: Mr. Justice Hueeman

text:
    State Bank of St. Charles, Appellee, v. James H. Burr, Appellant.
    Gen. No. 8,854.

      Opinion filed November 21, 1934.
    James H. Burr, pro se; Francis M. Lowes, of counsel.
    Hempstead & Green, for appellee.
   Mr. Justice Hueeman

delivered the opinion of the court.

This cause originated in a justice of the peace court. The appellee filed a proceeding in forcible entry and detainer against appellant to recover possession of certain premises. Judgment was entered in the justice court against the defendant, Burr. He prosecuted an appeal from said judgment to the circuit court of Kane • county. He filed an appeal bond with the justice in the sum of $400 which was accepted and indorsed “approved” by said justice over his hand and seal. Appellant Burr paid the fee for such appeal to the justice and the justice in turn filed his transcript in the office of the clerk of the circuit court together with the complaint, summons and appeal bond, and paid to the clerk the filing fee for said appeal.

The cause came on for hearing in the circuit court in due course. A jury was impaneled and sworn to try same. The defendant (appellant herein) filed his motion for a directed verdict at the close of the plaintiff’s evidence. This motion was denied. The plaintiff (appellee herein) thereupon moved the court to withdraw a juror and continue the case. This motion was granted. The cause next came on for trial in said court some three or four months later, at which time appellee filed its motion to dismiss the appeal on the grounds that the transcript from the justice of the peace as filed failed to show that said justice had fixed the amount of the appeal bond at $400 and also failed to show that a prayer for an appeal was made as is provided by section 18 of the Forcible Entry and Detainer Act, Cahill’s St. ch. 57, ¶ 19.

The trial court dismissed the appeal as prosecuted by Burr, and ordered procedendo to issue. Burr prosecutes this appeal from the order of the circuit court, dismissing his appeal.

It is contended by appellant that the receipt and approval of the appeal bond by the justice of the peace, and which the transcript shows, is sufficient to demonstrate that there was a prayer for an appeal, that the appeal was allowed, and that the amount of the appeal bond was fixed by said justice; otherwise the giving and approval of the appeal bond would not have occurred. Appellant urges that the giving and approving of an appeal bond is a matter subsequent to the praying of an appeal and the fixing of the bond to be furnished therefor, and the fact itself that the appeal bond was executed and filed with the justice and approved by him, was a substantial compliance with the provisions of the act. Appellant made motion to vacate the order dismissing his appeal and for a rule upon the justice of the peace to furnish a full and complete transcript of the record in the case. He also presented and asked leave to file such complete transcription. It appears by the full and complete transcript as prepared by said justice and offered by appellant, following the judgment entered, that “defendant prayed an appeal to circuit court; appeal bond in the sum of $400, signed by E. L. Hoyt and Charles B. Mead, taken and approved this 18th day of February, 1933, J. T. McConkey, J. P.” The only question raised by appellant in which we are concerned at this time, is the order of the court denying his motion to have full and complete transcript of record filed, and the dismissing of the appeal.

It is not in dispute that the appeal bond was filed and approved by the justice within the statutory time, or that the filing fee was paid, or that the justice did not transmit the proceedings to the circuit court, and file a transcript. Appellee’s position was that because of the fact the transcript as filed failed to show in so many words that an appeal was prayed and the amount at which the appeal bond was fixed, voided the appeal and that as a matter of law “no appeal was really taken, but only an attempted appeal.”

All that is required to perfect an appeal in an action of this kind, from the justice court to the circuit court, is to comply with the substantial requirements of the statute. No objection is made to the bond with respect to the amount, form, substance, or the solvency or sufficiency of the securities. Appellee relies upon the fact that appeals of this nature being statutory, it is necessary to strictly comply with such statute, and since the transcript as filed by the justice failed to set out that an appeal was prayed together with the amount of the bond fixed, that therefore no appeal had been taken within the meaning of the statute. It is not necessary that every detail of the statute be strictly complied with in the first instance, in order to give the court to which the appeal is taken jurisdiction of the parties. When the substantial requirements of the statute have been complied with in appeals of this character, the court of appeal should take jurisdiction of the parties, and should afford the appealing party the opportunity of perfecting his appeal so as to bring it within the strict compliance of the statute. It is the purpose of courts to see that a trial may be had upon the merits, whenever the same can be done without violence to existing statutes or rules of practice. Where a person in good faith and within the time limited by the statute undertakes to perfect an appeal in a case of this character, and actually takes the steps required by statute to perfect such appeal, he should not by any reason of omission on the part of the magistrate be deprived of his right to have his cause heard.

A very similar case to the instant case is found in that of Enright v. Rehbach, 133 Ill. App. 50. This was an action in forcible entry and detainer. The appellee in the circuit court in that case moved to dismiss the appeal brought by the party appealing. The court on page 55 of its opinion, in referring to the motion to dismiss the appeal in that case, and in commenting upon the denial thereof, uses the following* language: “As we understand counsel, their principal and foundational contention is that the transcript from the justice fails to show that appellee ‘prayed an appeal,’ or that the justice ‘fixed the amount of the bond.’ ‘The entering into the appeal bond is all the praying for an appeal that is necessary’ in a case of appeals from a justice of the peace. The acceptance and approval of the bond by the justice was a fixing of the amount of the bond, and this was fully evidenced by the amended transcript and the accompanying papers, including the bond with the justice’s approval written thereon.”

We are of the opinion that Burr, under the circumstances existing in this case, was entitled to a rule upon the justice to send up a full and complete transcript of the record. It therefore follows that the circuit court erred in denying appellant such right, and the judgment herein is reversed and the cause remanded to the circuit court of Kane county for further proceedings consistent with the views herein expressed.

Reversed and remanded.