text:
    The People of the State of Illinois, Defendant in Error, v. Rudolph, Alias Rudy, Steig, Plaintiff in Error.
    Gen. No. 8,221.
    Heard in this court at the May term, 1930.
    Opinion filed August 15, 1930.
    C. A. Pedderson, for plaintiff in error.
    Vincent S. Lumley, for defendant in error.
   Mr. Justice Jones

delivered the opinion of the court.

The defendant, Rudolph Steig, was found guilty of violating the Illinois Prohibition Act, Cahill’s St. ch. 43, ¶ 1 et seq. The information in the case contained three counts: The first charged an unlawful sale; the second charged unlawful possession; and the third charged unlawful transportation. By the verdict of the jury, he was found guilty “in manner and form as charged in the information.” The court sentenced ' him to pay a fine of $300 and all "costs of suit under the first count, $500 under the second count, and $500 under the third count. It was further adjudged that the defendant be imprisoned in the county jail for 90 days and that he also stand committed until said fines and costs are paid.

The defendant lived on a farm with his father near Marengo in McHenry county. About a year or two before, he had owned an interest in a business at Harvard, where cigars, candies, and soft drinks were sold. Since he disposed of his interest in that business, he had been engaged in baling straw for the Rockford Paper Mills. There was no attempt made to show that previous to the occurrence which gave rise to his arrest, he had been guilty of violating any of the provisions of the Prohibition Law.

In the neighborhood of the defendant lived a young man by the name of Andrew Soma, who had been an intimate friend of the defendant, and a frequent visitor at his home. One Saturday night Soma came to the home of defendant and told him that he was not working and had to have some money. He asked the defendant if he knew where he could obtain some alcohol. The defendant replied that he didn’t know whether or not he could find him such a place. Soma then said he had a purchaser for five gallons, and he thought the defendant could help him out. The defendant agreed to do it.

On Sunday, Soma returned to the home of defendant. Soma having no automobile, the defendant’s car was used. They drove to a filling station, where they had a conversation with one of the attendants, who directed them to the home of a woman called “Helen.” She lived in the country and when the defendant and Soma arrived at her house, they procured from her, five one-gallon cans of alcohol. Soma told the defendant to pay her and he,. Soma, would return the money when he disposed of the alcohol. The defendant gave the woman his check for $35. The liquor was placed in defendant’s car and he and Soma proceeded to the place where Soma .said his purchaser ..would be found. On the way to this place, Soma gave the defendant a $20 bill and a $10 bill. The man who was expected to purchase the alcohol was not at the appointed place when the defendant and Soma arrived, and failed to come. The liquor was taken to Soma’s home and kept there until the next evening when the two parties again went to the appointed place and the purchaser did not appear. They made a third trip on Monday night. After they had arrived, a car drove up, out of which a man got, who addressed Soma. The defendant delivered the liquor to this man, who said “There is $20 due.” The defendant replied that whatever arrangements Soma had made were all right. The man gave the defendant a $20 bill. At this point, another man, who turned out to be the sheriff, jumped out of the car and approached with a gun in his hand. Defendant was arrested and taken to the county seat where he was searched. The money he had received, consisting of two $20 bills and a $10 bill, were found on his person.

It was developed upon the trial that Soma’s story to the defendant that he was in need of money and had a place to sell some alcohol was a part of a scheme which had been previously laid by the sheriff and Soma to induce the defendant to violate the law. Soma had no bona fide purchaser in mind. The alleged prospective purchaser was a deputy sheriff, named Pratt, with whom the defendant was unacquainted. Soma’s pretense that he had no money with which to pay Helen was false. He then had in his pocket the $20 bill and $10 bill which he afterwards gave the defendant. These bills were marked bills, prepared for the occasion. The bills were' marked and delivered to Soma by the sheriff. The $20 bill, which Pratt gave the defendant, was marked by the sheriff, and delivered to his deputy for the sole purpose of turning it over to the defendant. The money was marked so that it could be identified by the sheriff, after he had taken it from defendant in a search. Every step in the entire affair, from the time the proposition to violate the law was made to the defendant, down to and including the time of his arrest and search, was planned by the sheriff and those who were assisting him. That the defendant fell a willing and easy victim to their plans, furnishes no excuse for their conduct. It is not against the policy of the law to find out whether offenses are being committed, although it is done by artifice or deceit, where the criminal design or intent originated in the mind of the violator. (People v. Smith, 251 Ill. 185, 189; People v. Hartford Life Ins. Co., 252 Ill. 398, 406.) But an officer or prosecutor must not induce or solicit the commission of a crime by one who had no intent to commit it. (City of Evanston v. Myers, 172 Ill. 266; People v. Peters, 265 Ill. 122.)

The Supreme Court in Love v. People, 160 Ill. 501, declared that to stimulate unlawful intentions for the purpose and with the motive of bringing them to maturity so the consequent crime may be punished, is a dangerous practice. It further declared that “Such means and agents are more dangerous to the welfare of society than are the crimes they were intended to detect and the criminals they were to arrest.” In Billingsley v. United States, 274 Fed. 86, the trial court charged the jury: “Public policy forbids that officers sworn to enforce laws should seek to have them violated, and that those whose duty it is to detect criminals should create them. So that, when an officer induces a person, who has had no intention of committing a crime, to violate the law, courts will not lend their aid in punishing, the person thus lured into crime.”

In People v. Schell, 240 Ill. App. 254, the facts showed that an officer employed Ditto to induce the defendant to transport liquor from Iowa to Henderson county, Illinois. Ditto was to receive $50 for his services. This court held that there is a wide distinction between inducing a person to sell liquor, who is then engaged in that business, and in inducing one to enter the business for the purpose of prosecuting him. In that opinion we reviewed at considerable length the decisions of the various jurisdictions upon the question of entrapment, and we held the law to be that decoys are permissible to entrap criminals, but not to create them. The record in this case is devoid of any testimony even tending to show that the defendant had previously violated the Prohibition Law. It contains nothing but a suspicion arising from the fact that the defendant had at one time been in the business of selling soft drinks. This testimony was improperly admitted on cross-examination over the objection of defendant’s counsel.

Under the law of this State, based upon firmly established principles of justice, convictions obtained by the methods employed in this case cannot be permitted to stand.

Aside from the consideration arising out of the entrapment of the defendant, the judgment is erroneous upon another ground. The verdict was a general one finding the defendant guilty; that is to say, it found him guilty of (1) unlawfully selling intoxicating liquor (2) of unlawfully possessing it, and (3) of unlawfully transporting it. Separate fines were imposed under each count and then the judgment ordered the defendant to be imprisoned in the county jail for 90 days. The judgment of imprisonment was a blanket judgment and by its terms was not imposed under any specific count. This was erroneous. The sentence of imprisonment cannot be apportioned among the three counts, because the minimum sentence provided by law for conviction under any count is 60 days, so that a 90-day imprisonment can refer to only one conviction. Furthermore, the law does not provide for fine and imprisonment for possession of intoxicating liquor as a first offense. (People v. Hollenbeck, 322 Ill. 443.) While the trial court may, in its discretion, cumulate the punishment fixed for the conviction on different counts of an indictment, the punishment on each particular count, and with reference to such count, must be specified. (People v. Barney, 217 Ill. App. 322; People v. Elliott, 272 Ill. 592.)

The judgment makes no effort to cumulate sentences. It is a unit as to that part which imposes a penalty of imprisonment. It cannot be remedied by an order to resentence and is therefore void. This is demonstrable: if the defendant should so desire, he might pay the fines imposed under the first and third counts. It would then be impossible to imprison him under the second count as it charges possession, and the law does not provide both fine and imprisonment for that offense.

For the reasons herein stated, the cause is reversed and remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Jett

license: Public Domain

text:
    First National Bank of Amboy, Illinois, Appellee, v. Roy W. Gooch et al., Appellants.
    Gen. No. 8,146.

      Heard in this court at the October term, 1929.
    Opinion filed August 21, 1930.
    C. E. McNemar, for appellants.
    Henry C. Warner and Clyde Smith, for appellee.
   Mr. Presiding Justice Jett

delivered the opinion of the court.

This is an appeal by Boy W. Gooch, Della M. Gooch, and Balph W. Buckman, appellants, from a decree rendered in the circuit court of Lee county, in favor of the First National Bank of Amboy, Illinois, setting aside and vacating a certain deed, made and executed by Boy W. Gooch, and Della M. Gooch to Balph W. Buckman, and a deed by Balph W. Buckman and Kathryn L. Buckman, his wife, to Della M. Gooch, on the ground that the deeds were executed and delivered in fraud of creditors.

The lands conveyed consists of 280½ acres and a house and lot and belonged to Boy W. Gooch, who, on April 23, 1926, conveyed the same to his wife, Della M. Gooch.

The title to the lands was conveyed by Boy W. Gooch and Della M. Gooch, to Balph W. Buckman, who in turn was joined by his wife in a deed to Della M. Gooch, placing the title thereof in the name of Della M. Gooch. Both conveyances were by warranty deed and contained no recitals or agreements concerning the expressed consideration of $1.

It appears that at the time of the execution of the deeds Boy W. Gooch was largely indebted to the Amboy State Bank, of which appellant Buckman was an officer. Gooch was a man getting along in years. The property conveyed was improved. It was subject to a mortgage of $7,000. Boy W. Gooch had been engaged in the oil business and in consequence thereof, lost considerable money. Buckman became solicitous about the indebtedness of Boy W. Gooch to the bank and to certain residents of Amboy, to whom he had been instrumental in negotiating some of Gooch’s paper. Buckman called in Gooch and his wife, and conferred with them. Buckman suggested that Boy W. Gooch convey his farm to Della M. Gooch, who was the owner of $8,000 or $9,000, of. bonds and securities. She held two notes of Boy "WV Gooch aggregating $4,200. Buck-man also knew of a note for $2,000 Gooch.had executed, which was held by a man by the name of Goy and another one for $1,500 owned by a man by the name of Green. Both of the two last-mentioned notes had been negotiated by Buckman on behalf of Gooch. At the time of the conveyance between Buckman, Gooch and his wife, Gooch owed the bank $7,110. These various items of indebtedness were totaled by the respective parties at the conference. It was also known that Gooch had received a bequest belonging to his daughter, Vera, in the sum of $500, and that a part of his land was incumbered by an annuity of $400, payable to his mother. It was the plan of Buckman for Mrs. Gooch to take title to all the land and to assume and to pay the above-mentioned indebtedness.

Before the transaction, was consummated, Mrs. Gooch borrowed $1,200, from Amboy State Bank and the money was deposited to the credit of Gooch, her husband.

The items of indebtedness discussed at the meeting of Buckman, and Mr. and Mrs. Gooch, were the individual indebtedness of Boy W. Gooch to the State Bank of Amboy of $7,110; Mrs. Gooch’s note to the bank of $1,200; the Goy note of $2,000; the Green note of $1,500; mortgage on the land, $7,000; two notes to Mrs. Gooch, $4,200; the bequest to Vera, $500; and the annuity estimated at $3,000, This makes a total of $26,510.

Della M. Gooch acceded to the suggestion made by Buckman and the debts were paid. She gave her individual note for $6,000 to the bank in part payment of her husband’s indebtedness. Gooch gave a chattel mortgage to cover the remainder of his indebtedness, including the $1,200 his wife borrowed.

Gooch subsequently went into bankruptcy and Mrs. Gooch paid off the note secured by the chattel mortgage. It appears that the above-mentioned creditors were all satisfied with the transaction.

The record discloses that on the 6th of January, 1927, the First National Bank of Amboy, appellee, recovered three judgments in the circuit court of Lee county, against Boy W. Gooch, one of which was for $2,285.55, another for the sum of $735.39, and the other for $679.65; that executions were issued on all of said judgments on said 6th day of January, 1927, and delivered to the sheriff of Lee county in which said county Boy W. Gooch resided; that the executions were returned by the sheriff wholly unsatisfied and “no property found.”

It is not just clear from the record whether or not Della M. Gooch knew that appellee held the notes of her husband at the time of the meeting held by Buck-man, Gooch and Mrs. Gooch; whether they had any information or not, that matter was not taken into consideration at the time the deeds were executed and she agreed to assume and to pay the specific notes and obligations of her husband as hereinbefore mentioned. Gooch was adjudged a bankrupt, and almost a year from the time the deeds in question were executed, this suit was filed; the case was heard by the chancellor with a finding in favor of appellee and the decree was entered, setting aside the deeds.

The question to be determined is, whether or not the evidence supports the findings and the decree.

The main contentions of appellee against the transaction are that' the land sold at a largely inadequate price to Mrs. Gooch and that the indebtedness alleged to be dne her is largely fictitious. A number of witnesses on the part of appellee testified that the land was worth in the neighborhood of $40,000; a like number testified on behalf of appellants that it was worth around $20,000.

The difference in opinion between the witnesses who testified on the part of appellee and those on behalf of appellants, concerning the value of the land in question, can be accounted for by the fact that appellee’s witnesses in fixing the value of lands, laid great stress on the value of the improvements and by that means boosted the value of the farms. The witnesses on the part of the appellants estimated the value of improvements in connection with the soil on the basis such improvements and soil would bring when placed on the market for sale.

We appreciate the fact that it is necessary that the farming lands be improved with dwelling houses, barns and outbuildings to be occupied by those who till the soil and that the improvements go to help enhance the value of the property. One thing, however, that should be taken into consideration when it is sought to determine the market value of lands and premises, is the amount of revenue that may be derived therefrom.

The proper inquiry in such cases is what was the fair cash market value of the premises at the time of the transaction in question, not what the buildings or improvements cost, but the land and premises with the improvements on the date of the execution of the deeds.

It will be remembered that one-half of the land in question was subject to an annuity of $400 per year.

We are of the opinion, taking into consideration the burden of the annuity and the general market conditions of farm lands, that Mrs. Gooch paid a fairly adequate price for the lands in question.

The rule is that a purchaser is not compelled to give the highest price for land and that a deed will not be set aside for inadequacy of price if the consideration is fair and reasonable.

It is insisted by appellee that Mrs. Gooch was not a bona fide creditor to the extent she claims. Della M. Gooch and Ralph W. Ruckman testified to the amount of the consideration for which the land was conveyed, and their testimony is uncontradicted by anyone. It is corroborated in detail by documentary proof, checks, notes, and the records of the Amboy State Bank. The amount of the indebtedness constituting the consideration is not only proved, but also the consideration for such indebtedness is completely established. The proof by which it is established is neither impeached nor contradicted.

That Della M. Gooch had a separate patrimony of her own amounting to $17,000, inherited from her father, is not controverted; that she had loaned $4,200 of it to her husband, $2,000 at one time arid $2,200 at another, and received from him two separate promissory notes, is not disputed; that she had in addition to the amount.loaned Roy W. Gooch, in her own right, approximately $9,000 left from her father’s estate, is not questioned. It was invested in city bonds, stock and promissory notes.

If the evidence of Mrs. Gooch and of Ruckman is true, then there can be no question but that the consideration was paid as testified to by them. There is nothing in this record to show that their evidence is not true.

It is suggested by appellee that Roy W. Gooch has managed the farm, and he controlled the proceeds derived therefrom, or a large portion thereof, and that such facts tend to throw suspicion upon the transaction.

In Wolkau v. Wolkau, 299 Ill. 176, at page 184, the court announced the rule on accounts between husband and wife in the following language: “It is the policy of the law to promote peace and harmony in the marital relations, and a wife should not be compelled to deal with her husband as she would with a stranger in order to preserve her rights. In view of the confidence which it is naturally expected a wife reposes in her husband, the wife is not required, in order to preserve her rights, to demand of her husband a strict financial accounting of his dealings with her separate or their common property.”

Farrow v. Eldred Drainage and Levee Dist., 232 Ill. App. 647, was a suit in which Lizzie Farrow had sued the drainage and levee district for damages occasioned by the overflow of waters from a ditch constructed by the district. It was the contention of the levee district that the proof did not show that Lizzie Farrow was the owner of the crops that were damaged, but tended to show that the crops were owned by her husband. In its decision of the case, the court found that the wife owned the land upon which the crops were raised and that her husband looked after and managed the work of putting in the crops and of harvesting and disposing of them, in the same manner as if they were his own with the consent and acquiescence of his wife, and in its opinion the court among other things said:

“It may be said concerning this contention that the part which the husband takes in the cultivation and management of his wife’s land, with her knowledge, acquiescence and consent, natural to the marriage state, does not deprive the wife of her right of property in the crops. Where a husband and wife live together on the wife’s farm, and he contributes personal labor and manages the farm in such a way as is consistent with the common interests of both, and the proper enjoyment of the property, it does not convert the products of the farm into property of the husband. (Blood v. Barnes, 79 Ill. 437; Primmer v. Clabaugh, 78 Ill. 94; Alsdurf v. Williams, 196 Ill. 244.) ”

In a decision of this cause the court should keep in mind that the rule is that a debtor in failing circumstances may prefer one creditor to the exclusion of others when he does so in good faith and for a valuable consideration; that it is also the rule, a husband may deal with his wife in business matters and protect her by conveyances in satisfaction of existing indebtedness. So may he protect relatives standing as creditors if done in good faith. Such relationship is not proof of fraud or that there is no bona fide indebtedness. (Ayers Nat. Bank of Jacksonville v. Barber, 287 Ill. 182, at page 188-189.)

Relationship is merely a circumstance that may excite suspicion but will not of itself amount to proof of fraud. (American Hoist & Derrick Co. v. Hall, 208 Ill. 597-601; Merchants’ Nat. Bank v. Lyon, 185 Ill. 343.)

The rule is that when the husband, who is insolvent, makes a voluntary transfer of his property to his wife without consideration, the law presumes fraud. Where the husband transfers all his real estate to his wife in order to prefer her and others of his creditors for a valuable consideration, the conveyance is not presumed to be fraudulent but the party alleging fraud must prove the same by competent evidence and by a preponderance of all the evidence in the case.

Appellee has failed to prove the allegation of fraud stated in its bill that Roy W. Gooch retained any interest in the land transferred by him to Della M. Gooch, other than his inchoate dower right given him by the law in all real estate owned by his wife. Furthermore, the allegation in the bill filed by appellee, that the consideration paid Roy W. Gooch was a pretended •consideration is not sustained by the evidence in the case. On the other hand the uncontradicted testimony in the cause shows an adequate and actual consideration of thousands of dollars.

We are unable to say, after an examination of the evidence, that fraud has been proved by the appellee by either direct testimony or by the proof of facts and circumstances surrounding the transaction.

After a full and complete examination of the record, we conclude that the decree of the circuit court of Lee county should be reversed and the cause remanded with directions to the chancellor to enter a decree dismissing the bill of complaint filed by appellee. Decree reversed and remanded with directions.

Reversed and remanded with directions.


text:
    W. J. Fisher and Clarence Fisher, Trading as W. J. Fisher & Son, and Fred M. Burke, Appellants, v. F. C. Bollman, Appellee.
    Gen. No. 8,223.

      Heard in this court at the May term, 1930.
    Opinion filed August 21, 1930.
    George H. Fox, for appellants.
    Josef T. Skinner and Henry C. Warner, for appellee.
   Mr. Presiding Justice Jett

delivered the opinion of the court.

This is an appeal by W. J. Fisher and Clarence Fisher, partners, trading under the style and firm name of W. J. Fisher & Son and Fred M. Burke, appellants, from a judgment in favor of F. C. Bollman, appellee, on a trial of the right of property as provided by the statute entered in the county court of Lee county.

The record discloses that John 0. Nelson, a farmer residing in Lee county, Illinois, on October 29, 1928, was indebted to F. C. Bollman, appellee, in the sum of $1,300, and on said date the said John O. Nelson executed three promissory notes, one of which was for $700, one for $400, and one for $200, all due October 29, 1929, and délivered the notes to Bollman, appellee.

In June, 1929, Bollman desired a chattel mortgage from Nelson to secure the payment of the indebtedness evidenced by three notes which Nelson had given him, and on June 11, 1929, Max B. Seibel, a banker of Manlius, Illinois, acting on behalf of Bollman, went to the farm where Nelson resided and obtained a description of the live stock and grain which he owned. Seibel drafted a chattel mortgage and delivered it to Bollman. Bollman went to the farm of Nelson on that evening or the evening of the 12th of June. He informed Nelson that he had come to take a chattel mortgage to secure the payment of the notes which Nelson had executed and given to him. Nelson signed the chattel mortgage in. question and delivered it to Boll-man. Bollman then drove to the home of a man by the name of Christenson, who had formerly been a justice of the peace in Hamilton township in Lee county, in which Nelson resided. The term of office of Christenson, as justice of the peace, had expired. Christenson informed Bollman .that he was no longer a justice of the peace but that he would take the chattel mortgage to his successor, Joseph Bauer, who was then the duly qualified and acting justice of the peace of Hamilton township, and Bauer would arrange for the acknowledgment and would have the mortgage mailed to Dixon, the county seat of Lee county, for recording, if Bollman would give him the proper amount to pay the charges of the justice of the peace for taking the acknowledgment and docketing it and forwarding it to Dixon for record in the office of the recorder of Lee county. Bollman paid the amount of the fees to Christenson, who took the chattel mortgage to Bauer and Bauer signed the acknowledgment, entered the chattel mortgage in the chattel mortgage docket and forwarded the chattel mortgage to the recorder of Lee county at Dixon, together with the recording fees. The said mortgage was recorded in said county on June 15,1929.

The record further discloses that on December 31, 1929, two judgments were obtained by the appellants against John 0. Nelson, one for $789.91, and one for $1,259.63, and executions were issued thereon,' and levies were made by virtue of said executions by the sheriff on the property covered by the said chattel mortgage. Notice was given by Bollman, appellee, to the sheriff, for a trial of the right of property as provided by law with the results as aforesaid.

The only question involved is as to whether or not Bollman, appellee, was entitled to hold the property in question as against said judgments and executions, under the chattel mortgage which it is conceded was, in fact, not acknowledged as provided by the provisions of the statute, Cahill’s St. ch. 95, jf 2.

The evidence discloses, and it is not disputed, that Nelson never appeared before Bauer, justice of the peace, to acknowledge the said chattel mortgage.

In Long v. Cockern, 1.28 Ill. 29, where a question very .similar to the one in the instant case was involved, on page 36, the court said: “There is no pre- . tense that the mortgage was acknowledged as required by the statute in relation to chattel mortgages. Cockern and wife, at the time óf its execution, were residents of. Hancock county, and the acknowledgment was taken before a notary public of that county and in the form appropriate to conveyances of real property. The rule is well settled that a chattel mortgage not acknowledged as required by ¡the statute is void as to creditors and purchasers notwithstanding actual notice. Forest v. Tinkham, 29 Ill. 141; Porter v. Dement, 35 Ill. 478; Frank v. Miner, 50 Ill. 444; Sage v. Browning, 51 Ill. 217.”

In W. W. Kimball Co. v. Polakow, 268 Ill. 344, at page 348, it is said: “A chattel mortgage is a form of lien unknown to the common law and is a creature of the statute. (Frank v. Miner, 50 Ill. 444.) The statute being in derogation of the common law, it must be strictly construed. If not executed, acknowledged and recorded as provided by statute, a chattel mortgage is invalid as to those not parties or privies to it/’ and cases therein cited.

In McDowell v. Stewart, 83 Ill. 538, at page 539, the court in discussing a question of the same character as the one involved in this proceeding, said: "The defendant in the replevin suit was the sheriff of the county, and he claimed the property by virtue of three writs of fi. fa. against Robert J. Johnson. The points made on the ruling of the court below are all disposed of by the determination of the question, — was the chattel mortgage from Johnson to the plaintiff in the replevin suit acknowledged in conformity with the statute! The instrument introduced in evidence as such mortgage purported to have been so acknowledged, but the evidence successfully contradicts it. . . . It is very clear that the certificate of acknowledgment is false and that the statute was not, in fact, complied with in that regard. Whether notice was conveyed to parties as well by the instrument as thus executed, as it would have been had the law been faithfully observed, is not for us to inquire. As between the parties, it was valid without any acknowledgment; but without the acknowledgment it has no effect upon the rights of third parties acting in good faith. Porter v. Dement, 35 Ill. 478. In such case, actual notice of the mortgage does not prevent the creditor from asserting his right to subject the property to the payment of his debt. Frank v. Miner, supra.

In McCurley v. Pitner, 65 Ill. App. 17, at page 19, in discussing the question relative to the admissibility of the testimony of the officer who certified to the acknowledgment of a chattel mortgage, it is said: “The officer who certified to her acknowledgment, testified that she did not, in fact, appear before him or acknowledge the execution of it; and the controlling question in the case is whether he was competent as a witness to impeach his. official certificate. We think the rule declared by the authorities generally, as applicable to the situation here, makes him. competent, leaving the question of the weight of his testimony to the judgment of the trier. The certificate is the act of a ministerial officer and not conclusive like a judicial record and does not estop him as between these parties.” Bauer, the justice of the peace, was a competent witness on the question that Nelson did not appear before him and acknowledge the mortgage.

It is insisted by appellee, that inasmuch as neither the record of the alleged judgments in the circuit court of Lee county nor the executions issued thereon, were offered in evidence, the judge of the county court where this cause was tried had no evidence before.him of any lien except that of the chattel mortgage, which was offered in evidence.

The record discloses that the judgments and executions in favor of appellants and the sheriff’s levy thereunder are fully set forth in the claim which Boll-man, appellee, filed with the sheriff of Lee county and which said claim is a part of the record in this cause.

In Thompson v, Wilhite, 81 Ill. 356, the court held: “A claimant of personal property levied on under an execution. against another person, by giving notice of a trial of the right of .property, admits the validity of the execution.”

On the trial' of the right of property levied on by execution, the claimant cannot object to the execution. By proceeding under the law authorizing the trial of the right of property, he admits the validity of the execution and only claims.that it has been levied on his property and not on the property of the defendant in the execution. If the execution is a nullity, the remedy is by an action of trespass, replevin or trover against the officer. Harrison v. Singleton, 2 Scam. 21.

By giving notice that he will try the right of property, the claimant admits the regularity and existence of the proceedings against the defendant. Dexter v. Parkins, 22 Ill. 143-146.

In view of the state of the record in this cause,-we are of the opinion that the chattel mortgage was invalid as against the judgments and executions of the appellants and that the judgment of the county court of Lee county was erroneous in awarding the property to Bollman, the appellee herein, and said judgment is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Jett

text:
    Glenn McGirr, Administrator of the Estate of Freda E. McGirr, Deceased, Appellant, v. L. A. Pritchard, Appellee.
    Gen. No. 8,155.

      Heard in this court at the May term, 1930.
    Opinion filed June 11, 1930.
    Rehearing denied August 27, 1930.
    R. D. Robinson, for appellant.
    Hardy, Hardy & Hardy, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.

This is an action brought by Glenn MeGirr, administrator of the estate of Freda E. MeGirr, deceased, appellant, against L. A. Pritchard, appellee, to recover damages on account of the death of Freda E. MeGirr who was struck by an automobile driven by appellee.

The declaration consists of three counts and was filed on January 26,1928. Appellant in his declaration failed to aver either the date of the accident or the date of the death of Freda E. McGirr, nor does it contain any allegation that the action had been commenced within one year from the date of the death of the deceased.

To the declaration appellee filed a plea of not guilty. On March 18, 1929, the court granted appellee leave to withdraw his plea of not guilty and to file a demurrer to the declaration, which was confessed by the appellant. On June 25, 1929, appellant filed a motion ' for leave to amend the declaration by inserting the date of the death of the deceased in each count thereof, and the court after hearing the arguments of counsel on July 12, 1929, denied it and entered an order dismissing the suit and rendered judgment against appellant for costs of suit to be paid in due course of administration. It is from this order that the appellant prosecutes this appeal. Since the filing of the motion by appellant to amend his declaration section 39 of the Practice Act, Cahill’s St. ch. 110, ¶ 39, as amended, became effective July 1,1929 and reads as follows:

“At any time before final judgment in a civil suit, amendments may be allowed on such terms as are just and reasonable, introducing any party necessary to be joined as plaintiff or defendant, discontinuing as to any joint plaintiff or joint defendant, changing the form of action, and in any matter either of form or substance, in any process, pleading or proceeding which may enable the plaintiff to sustain the action for the claim for which it was intended to be brought or the defendant to make a legal defense. The adjudication of the court allowing an amendment shall be conclusive evidence of the identity of the action.

“Any amendment to any pleading shall be held to relate back to the date of filing the original pleading so amended, and the cause of action or defense set up in the amended pleading shall not be barred by laches, or lapse of time under any statute prescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited had not expired when the original pleading was filed, and if it shall appear from the original and amended, pleading that the cause of action asserted, or the defense interposed in the amended pleading grew out of the same transaction or occurrence, and is substantially the same as set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact, or some other matter or matters, which are necessary conditions precedent to the right of recovery or defense asserted when such conditions precedent have been in fact performed. ’ ’

The question arising upon this record is whether the amendment to said paragraph 39 became operative and effective so as to authorize the amendment to the declaration.

Appellant does not contend that said section 39 of the Practice Act, as amended, in any way affects the rights of the parties litigant to this suit, other than that the appellant claims that the amended section affords the legislative intent for construing section 2 of Cahill’s St. ch. 70, ¶ 2, “Injuries Act.”

The legal effect and operation of section 2 of chapter 70, of the Injuries Act and the intention of the legislature in passing it, are no longer questions which are open to discussion in this State. The effect and operation of this statute is now well settled as the same has been passed upon and stated in numerous decisions. If the only purpose in calling the amended statute to the court’s attention was to throw light upon the legislature’s intention in passing the Injuries Act, it does little more than establish that the legislature recognized and knew that, prior to the amendment in question, the operation and effect of the Injuries Act was exactly as contended by appellee, and that such an amendment to the declaration as proposed by the appellant, would not relate back to the time of filing the original declaration.

The only possible basis that the court might have for holding that said section 39, as amended, in any way affects the rights of the parties litigant to this suit, would be on the ground that the statute is retroactive in its operation, and that the case now before the court was governed thereby, even though the same was started, and the rights of the parties thereto fixed and determined prior to the time said section 39, as amended, became effective.

It is provided in section 2 of the Injuries Act, Cahill’s St. 1927, ch. 70, ¶ 2, that an action, such as the instant case, shall be commenced within one year after the death of such person. The present suit was commenced within one year after the death of appellant’s intestate, but the declaration did not state a cause of action, in that it did not aver the date of the death of the deceased nor did it contain any allegation that the action had been commenced within one year from the date of the death of the deceased.

In Devaney v. Otis Elevator Co., 251 Ill. 28, at page 33 it is said, “The rule is familiar that when a cause of action is stated for the first time in an amended or additional count, the suit is regarded, as to such cause of action, as having been commenced at the time when such amended or additional count is filed, and if the period fixed by the statute of limitations has run, when such a count is filed, the plea setting up the statute is a proper plea and a good defense for such newly-stated cause of action.” To the same effect is Allis-Chalmers Mfg. Co. v. City of Chicago, 297 Ill. 444, 449.

The construction apparently put upon the amendment to section 39 of the Practice Act by appellant is to the effect that the rule above announced is no longer of binding force as applied to the case at bar.

In Hartray v. Chicago Rys. Co., 290 Ill. 85, an action under the Injuries Act was begun on November 28, 1910, and the declaration averred that the injuries resulting in death occurred June 27, 1909. The declaration contained no averment that the action was commenced within one year after the death of one Jagielski nor was the date of the death averred. The defendant filed a plea of the general issue and there was a trial resulting in a verdict for the plaintiff. The defendant, on motion in arrest of judgment contended that the declaration, not showing on its face that the action was brought within one year after the death, stated no cause of action, and was insufficient to support any judgment in favor of the plaintiff. The motion was overruled and judgment on the verdict was entered against the defendant. The Appellate Court of the First District reversed the judgment of the superior court, and upon certiorari, the Supreme Court affirmed the action of the Appellate Court, and at page 86 among other things said: “This suit was brought under the Injuries Act, and the time fixed for commencing an action arising under that act is a condition of the liability and operates as a limitation of the liability itself, and not of the remedy alone (Carlin v. Peerless Gas Light Co., 283 Ill. 142; Goldstein v. Chicago City Ry. Co., 286 id. 297.) Since the right of action for death by wrongful act is wholly statutory and must be taken with all the conditions imposed upon it, the burden being upon the plaintiff to bring himself within the requirements of the statute, it is almost universally held that a provision in the statute creating the right,' requiring an action thereon to be brought within a specified time, is more than an ordinary statute of limitations and goes to the existence of the right itself.: It is a condition attached to, the right to sue at. all. (The Harrisburg, 119 U. S. 199; Bretthauer v. Jacobson, 79. N. J. L. 223; McRae v. New York, New Haven and Hartford Railroad Co., 199 Mass. 418;) ” . . . Furthermore, the amendment to the Practice Act relied upon by the appellant does not specifically state that it is to be given a retrospective effect.

In Eddy v. Morgan, 216 Ill. 437 at 447 the court used the following language, “Another canon of construction is, that statutes are to be so construed as to be given a prospective effect only, unless the will of the legislature to give it a retrospective effect is declared in terms so plain and positive as to admit no doubt.” It is a well settled rule of statutory construction that all statutes will not be given a retrospective effect unless the intention of the legislature to give it such effect, is clearly shown. Miner v. Stafford, 326 Ill. 204-207; Thompson v. Alexander, 11 Ill. 54-55; People v. Deutsche Gemeinde, 249 Ill. 132; People v. Chicago & Alton Ry. Co., 289 Ill. 282-286.

While the general rule is that statutes are not to be given retrospective operation except where it is manifest that the legislature intended they should have such operation, it is not competent for the legislature to give such operation to an act where it will affect existing or vested rights. City of Chicago v. Collin, 302 Ill. 270-274; Dobbins v. First Nat. Bank of Peoria, 112 Ill. 553-562.

A cause of action once barred by the statute of limitations cannot be revived or the right of defense to an action when once acquired, cannot be affected by a subsequent amendment or repeal of a statute, and the right to set up the bar of such a statute, or to interpose any other defense heretofore acquired to such a suit is a vested property right and cannot be taken away by legislation. "The right of defense to an action is as much “property” within the meaning of the constitution as the right to maintain such an action itself, and to deprive a person of either, by retroactive legislation, would be to deprive" that person of his property without due process of law. In view of this, together with the total absence of any express provision, or even any implication that it was the intention of the legislature to make the statute retroactive, the amendment in question is not retrospective in its operation, and does not in any way have any effect or bearing upon the rights of the parties in the case now before the court.

Board of Education v. Blodgett, 155 Ill. 441, was an action to recover on certain bonds issued by a school board. Recovery on the bonds was barred by the statute of limitations at the time when the statute was amended extending the period of limitation, whereupon the suit was brought. In its opinion, the court at page 447 said: “In almost all of the States of the Union, in which the question has arisen, it has been held that the right to set up the bar of a statute of limitations, as a defense to a cause of action, after the statute has run, is a vested right, and cannot be taken away by legislation, either by a repeal of the statute without saving clause or by an affirmative act, and that it is immaterial whether the action is for the recovery of real or personal property, or for the recovery of a money demand, or for the recovery of damages for a tort.” A right of defense against a money demand arising from the complete running of the statute of limitations is properly within the protection of the constitutional guaranty of due process of law. Board of Education v. Blodgett, 155 Ill. 441.

In Kenfield-Leach Co. v. Industrial Publications, 320 Ill. 449, at page 451 it is said: “If a statute confers a vested right it cannot afterward be' altered or amended so as to destroy the right, but if a change in the law affects only the remedy or procedure, all rights of action are governed thereby, without regard to whether they accrued before or after such change and without regard to whether suit had been previously instituted or not, unless there is a saving clause as to existing litigation.”

In Cooley’s Constitutional Limitations, 6th ed., page 454, under the heading of “Retrospective Laws”, it is said:—“Regarding the circumstances under which a man may be said to have a vested right to a defense against a demand made by another, it is somewhat difficult to lay down a comprehensive rule which the authorities will justify. It is certain that he who has satisfied a demand cannot have it revived against him, and he who has become released from the demand by operation of the statute of limitations, is equally protected. In both cases the demand is gone, and to restore it would be to create a new transaction for the parties — a thing quite beyond the power of legislation. ’ ’

In Hanley v. Waters, 255 Ill. App. 239, the court construed section 39 of the Practice Act as amended in 1929 and in doing so held: “An amendment to a declaration in an action for wrongful death under the Injuries Act, Cahill’s St. ch. 70, which alleges for the first time that the deceased left surviving next of kin who sustained pecuniary loss as the result of his death is not saved from the operation of the statute of limitations by the amendment in 1929 to section 39 of the Practice Act, Cahill’s St. ch. 110, ¶ 39, in regard to amended pleadings, relating back to the original pleadings, since the new cause of action is not ‘substantially the same’ as that stated in the original declaration and the failure to allege the survival of next of kin in the original declaration amounts to more than a mere defect in pleading.

“The amendment in 1929 to section 39 of the Practice Act, Cahill’s St. ch. 110, ¶ 39, in regard to amended pleadings relating back to the original pleadings, not specifically stating that it is to be given a retrospective effect, will not be construed as having such an effect.

“If the amendment in 1929 to section 39 of the Practice Act, Cahill’s St. ch. 110, ¶ 39, in regard to amended pleadings relating back to the original pleadings, is given a retrospective effect and applied to an amended declaration in an action for wrongful death which states, after a lapse of more than two years, for the first time that the deceased left surviving next of kin who sustained pecuniary loss as the result of his death, it will deprive the defendants of their vested right to urge the statute of limitations as a defense.”

We are of the opinion that since the right of action for death by a wrongful act is wholly statutory and must be taken with all the conditions imposed upon it, the burden was on the appellant to bring himself within the requirements of the statute and if the creating a right to institute a suit for damages requires the action to be brought within a specified time it is more than an ordinary statute of limitations but goes to the existence of the right itself. It is a condition attached to the right to sue, and must be complied with and if suit is not instituted within the time required by the statute giving the right to recover damages for a wrongful act it cannot be, by the amendment to the Practice Act in question, extended, nor can the amendment relieve the appellant from performing the necessary conditions precedent to the right of recovery.

In conclusion, we are of the opinion that the trial court did not err in denying the motion of appellant made on June 25,1929, for leave to amend the declaration. In this court the appellant insists that the amendment to the Practice Act became operative and effective so as to authorize the amendment proposed. For the reasons given herein, the amendment has no application to this case.

The judgment of the circuit court of 'Knox county is affirmed.

Judgment affirmed.


author: Mr. Justice Jones

text:
    Ralph V. McCreight, Administrator of the Estate of Jasper Beard, Deceased, Complainant, v. John S. Pinkerton et al., Defendants. First Trust & Savings Bank of Aledo et al., Cross Complainants, v. John S. Pinkerton et al., Cross Defendants.
    Gen. No. 8,141.

      Heard in this court at the October term, 1929.
    Opinion filed June 11, 1930.
    Rehearing denied August 27, 1930.
    Watson & Duvall, for appellants.
    Church & Califf, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.

Ralph V. McCreight, as administrator of the estate of Jasper Beard, deceased, filed a bill to foreclose a real estate mortgage securing an indebtedness of $4,500, executed by John S. Pinkerton and Laura B. Pinkerton, his wife, on February 25, 1914, but not recorded until October 20, 1926.

The First Trust & Savings Bank of Aledo, the First National Bank of Aledo, and Minnie A. Rankin, holders of notes amounting to $10,000, secured by a mortgage executed by the said Pinkerton and wife, May 1, 1919, and recorded June 21, 1919, filed a cross-bill to foreclose their mortgage. The question of priority of liens is the principal issue raised.

It is the claim of the original complainant that although his mortgage was not recorded until after cross complainants’ mortgage was placed of record, still the cross complainants had notice óf the existence of his mortgage lien and cannot deny its priority. John S. Pinkerton was called as a witness and testified that at the time he made his mortgage to the bank, he told the cashier, A. C. Beers, that Jasper Beard, complainant’s intestate, had a mortgage for $4,500 on the premises, and that Beers said “All right.” Beers testified that no such conversation took place.

The master in chancery made a finding that the First Trust and Savings Bank had no knowledge of the unrecorded mortgage to Jasper Beard at the time the mortgage to the bank was given, and that the lien of the bank’s mortgage was prior and preferred to that of the Beard mortgage. Thereafter, without hearing additional testimony or argument, the master changed his findings, and found that the bank did have knowledge of the Beard mortgage at the time its mortgage was given, and that the Beard mortgage is a prior lien to that of the bank. Objections to this report of the master were overruled, and stood as exceptions before the court. On the hearing, the court sustained the last findings of the master, overruled the exceptions of appellants, and entered a decree giving priority of lien to the Beard mortgage. This appeal is prosecuted by the First Trust and Savings Bank of Aledo and Minnie Rankin.

The bank mortgage was acknowledged before the above-mentioned Beers, a notary public, and also the cashier and a stockholder in the bank. It is claimed that the acknowledgment was void, and the mortgage was the same as if it had not been acknowledged. Ogden Bldg. & Loan Ass’n v. Mensch, 196 Ill. 554; Fugman v. Jiri Washington Bldg. Ass’n, 209 Ill. 176, are cited in support of this contention. Without regard to the validity of the acknowledgment, the mortgage was good as between the parties, except as to the homestead. (Ogden Bldg. & Loan Ass’n v. Mensch, supra.)

The general rule is that where two conveyances of the same land are made, the first one recorded is given priority. (Delano v. Bennett, 90 Ill. 533; Huebsch v. Scheel, 81 Ill. 281.) But when this rule is invoked, it must appear that the instrument given priority is one which is authorized to be recorded. One of the requisites for recording is that the instrument must be duly acknowledged. (Choteau v. Jones, 11 Ill. 300; Reed v. Kemp, 16 Ill. 445.) The record of unacknowledged instruments is not available as evidence for any purpose other than to show notice. The object of the recording laws in permitting such unacknowledged instruments to be filed is not to preserve the evidence of title, but to give notice of claim. The record of an unacknowledged deed or mortgage only gives warning which persons dealing with the land must heed. (Winter v. Dibble, 251 Ill. 200; Barnett v. Barnett, 284 Ill. 580.) The acknowledgment to the bank’s mortgage, being regular on its face, was good as constructive notice to subsequent purchasers and creditors. (Ogden Bldg. Ass’n v. Mensch, supra.) But it gains no advantage by its recording, except as against subsequent purchasers and creditors. The Beard mortgage was executed prior to the execution of the bank mortgage, and obviously the provision of the statute as to subsequent purchasers and creditors can have no application to it. As to Beard, the mortgage to the bank stood as if it had not been recorded, unless it can be said that the acknowledgment to the bank mortgage is a valid acknowledgment.

It is claimed that it has been made valid by certain validating acts of the legislature. The act of 1903, Cahill’s St. ch. 30, ¶ 45, validated all acknowledgments theretofore taken by an officer or stockholder of a corporation. It is not prospective in its operation. It validated only prior acknowledgments. (State Bank of Palatine v. Barbaras, 252 Ill. App. 115.) The validating act of 1929, Cahill’s St. ch. 30, 46(1), likewise validated all snch acknowledgments previously taken, and limited its application to immediate parties. It did not attempt to validate an acknowledgment so as to change the vested rights of third parties. (Steger v. Traveling Men’s Bldg. Ass’n, 208 Ill. 236; Fugman v. Jiri Washington Bldg. Ass’n, 209 Ill. 176.) This act could not affect the bank’s mortgage until July 1, 1929, the date when the act went into effect. The Beard mortgage was recorded on October 26, 1926 or nearly three years before the validating act of 1929 went into effect. It was therefore prior to the bank’s mortgage in point of valid recordation. (Noakes v. Martin, 15 Ill. 118; Deininger v. McConnel, 41 Ill. 227.)

Appellants were not prejudiced by the fact that the master in chancery changed his findings without additional testimony or further hearing. They were permitted to file objections to the report and the entire cause was heard by the court. On motion of appellee’s counsel, certain portions of appellants’ objections to the master’s report were expunged. No certificate of evidence pertaining to such ruling was taken, and the record preserves nothing for review on that question. (Williams v. DeRoo, 316 Ill. 23; Sinclair v. Sinclair, 224 Ill. App. 130.)

Whether or not the First Trust and Savings Bank had actual notice of the Beard mortgage at the time the mortgage to the bank was executed, and whether or not the testimony of the witnesses who testified in relation thereto was competent is Immaterial in this case. We hold as a matter of law that the lien of the mortgage to Beard is prior and superior to that of the mortgage to the bank. The decree of the chancellor was correct and is affirmed.

Decree affirmed.


text:
    Walter P. Martin, Clerk of the Circuit Court of Henderson County, Illinois for the use of Carrie Walling, Appellee, v. William Sparrow, Appellant.
    Gen. No. 8,134.
    Heard in this court at the October term, 1929.
    Opinion filed August 9, 1930.
    Hartzell, Cavanagh & Martin and James W. Gordon, for appellant.
    E. V. Champion, Charles E. Fort, Jr. and Charles E. Lauder, for appellee; Frederick H. Lauder, of counsel.
   Mr. Presiding Justice Jett

delivered the opinion of the court.

This suit was instituted by Walter P. Martin, clerk of the circuit court of Henderson county, Illinois, for the use of Carrie Walling, appellee, against William Sparrow, appellant, to recover upon an alleged guaranty hereinafter mentioned. The said appellee claimed to be the. registered owner of Series “A” 7 per cent gold bonds to the amount of $4,640, principal, of the Lomax Town Company and claimed the right to recover upon said guarantee because said bonds had not been paid by the maker thereof. „

,It appears that in the year 1911, one William T. Love undertook the promotion of a town site enterprise at Lomax in Henderson county, Illinois. The said William T. Love secured options on a large number of tracts of land, secured title to some lands, and operated under the name of “The Lomax Town Company.” The Lomax Town Company was merely a name under which William T. Love transacted business. It was the dream of the said Love that the whole area of land to which he had secured title and on which he had taken options should be used to make town sites, build homes, streets, parks, boulevards and factories. In his option contracts he agreed to pay liberal prices for the land.

As was to be expected, he soon needed money. His original proposition was to involve millions of dollars but, in order to get some ready money, he executed a trust deed in which he conveyed the lands he had bought, and his rights under the option contracts, to a trustee. The trust deed was to secure the payment of an issue of $100,000 of gold bonds. The trust deed was recorded and the bonds were printed or engraved, but they found no ready market. It became necessary to bolster them up, so another financial idea was conceived. Love undertook to induce those who had given options on their land to guarantee the payment of the bonds to the extent of $10 for each acre the several landowners had optioned. He succeeded in getting a number of them to execute written guaranties.

Among this number was William Sparrow, the appellant. He had optioned 630 acres of land, and executed two separate guaranties, one for $300, and the other for $6,000.

Love was unable to get guaranties to the extent of $100,000 and, after receiving about $40,000 of such instruments, he forwarded them to the trustee, who undertook to sell the bonds on the faith of the guaranty. Among the prospective purchasers of the bonds was Carrie Walling. She called on the trustee, and he exhibited the written guaranties which he had in his possession. Mrs. Walling afterwards purchased $4,640 of the bonds, but no written guaranty was delivered to her. Time went on, the trust deed was foreclosed, and only a small part of the indebtedness was realized. The decree directed a distribution. Mrs. Walling refused to accept her part, and brought suit directly against Sparrow on his instruments of guaranty. A trial wg,s had which resulted in a judgment in her favor against Sparrow for $6,300.

The instruments executed by Sparrow and sued on in this case are alike except as to amount, and are in these words:

“Bond Guarantee. Series ‘A’ 7 per cent Gold Bonds of The Lomax Town Company of Lomax, Illinois.

“To THE HOLDER AND OWNER OF THIS AGREEMENT:

"This is to certify, That I am the owner of 600 acres of land located in Henderson County, Illinois, its actual cash value, over and above all incumbrance, being $100 per acre; and.I hereby guarantee to any holder of this instrument the payment of any of the Five Year 7 Per Cent Gold Bonds of the Lomax Town Company, known as Series ‘A’ Bonds, bearing date of February 1st, 1912, owned or held by the holder of this instrument, to the extent or sum of ($6,000).

“It is understood "that all assets of said Company, real and personal, shall first be exhausted, to make payment of said bonds, before recourse shall be had upon this obligation.

“The purpose of this agreement is to add value to the said bonds and create a market for them, and thus strengthen the Town Building Enterprise of the Lomax Town Company.

"William Sparrow (seal)"

The question in this case is whether there is any liability in favor of the plaintiff growing out of the guaranty contracts sued on. It will be noted that they were addressed “to the holder and owner of this agreement.” By their terms they guarantee to “the holder of this instrument” the payment of any of said bonds to the extent of the amount named therein. As above stated one of Sparrow’s contracts called for $6,000, and the other for $300. It is evident that it was no joint agreement entered into between guarantors. Their undertakings were individual and several. At the time they were executed and delivered to Love, Sparrow only engaged himself to the purchaser of bonds who held a guaranty. It is therefore obvious that if a purchaser of bonds had selected Sparrow’s guaranties, no other bondholder would be authorized to look to such guaranties for protection. Only the one who held them had any rights under them. Mrs. Walling had neither of Sparrow’s guaranties in her possession. After she had sustained the loss she had no more right to sue on Sparrow’s guaranty than she had to sue on any of the other guaranties which Love had obtained. Neither had she any more right to sue Sparrow than any other losing bondholder had.

The law applicable to all contracts, including those of suretyship and guaranty, is well stated in Corpus Juris, vol. 13, page 279:

‘ ‘ The offerer has a right to prescribe in his offer any conditions as to time, place, quantity, mode of acceptance, or other matters which it may please him to insert in, and make a part thereof, and the acceptance, to conclude the agreement, must, in every respect, meet and correspond with the offer, neither falling short of, or going beyond the terms proposed, but exactly meeting them at all points and closing with them just as they stand.

In vol. 28 Corpus Juris, page 899, the following is announced:

“The acceptance of a guaranty must he made upon the same terms in which it is offered, including the performance of conditions prescribed therein.”

It is urged that contracts of guarantee must be construed as favorably to the creditor as other contracts and a number of cases are cited and considerable argument indulged in to establish that proposition. We believe this to be the result of a misapprehension.

This is not a case calling for construction or interpretation. The language of the instruments sued on leaves no room for construction. It is clear and explicit, subject to convey but one meaning.

When the plaintiff traded for the bonds, she says, she relied implicitly upon these guarantees. If she did, she should have possessed herself of them for, until she became the holder of the instrument, there was no privity of contract between her and the signer, and then only in the event that she was the holder or owner of some of the bonds described therein.

The most that can be said of this writing is that it is an offer to guarantee the payment of any of these bonds to anyone who held or owned them and desired to rely upon the guaranty, if they would possess themselves of the writing, for, until such possession is taken, the contract is not complete. There is no meeting of the minds of the parties. The meeting of the minds is just as essential in this kind of a contract as in any other kind. Ruffner v. Love, 33 Ill. App. 601-605. To the same effect see Taylor v. Tolman Co., 47 Ill. App. 264; Sears v. Swift & Co., 66 Ill. App. 496.

By the very terms of this writing, its acceptance can be manifested only by possessing it. If everyone who bought some of these bonds needed only to say “he relied implicitly upon the guarantees” of Mr. Sparrow, he could easily he involved in many lawsuits, and each person who bought a bond and saw his writing would have an equal right to sue him and an equal right to recover against him.

The question of delivery is discussed in the briefs, but is not important in this case on this record. The delivery required by the terms of the guarantee is a délivery to the holder or owner of some of the bonds described therein. We do not find anything in the record on which to base a finding that these writings were ever in the possession of any bondholder, much less that Mrs. Walling ever possessed either of them.

The motion to strike the bill of exceptions, having been duly considered, is denied, and for the reasons above set forth, the judgment is reversed, and the cause remanded.

Reversed and remanded.


author: Mr. Justice Boggs

text:
    Bruce L. Brayton et al., Defendants in Error, v. I. Grace Brayton, Plaintiff in Error.
    Gen. No. 8,065.

      Heard in this court at the October term, 1929.
    Opinion filed August 27, 1930.
    Hall & Dusher, for plaintiff in error.
    John R. Thompson, for defendants in error.
   Mr. Justice Boggs

delivered the opinion of the court.

On February 28, 1927, one Bruce L. Brayton filed a bill for divorce in the circuit court of Ogle county against plaintiff in error, charging desertion. Thereafter on May 12, 1927, a decree was entered, reciting service of summons on plaintiff in error more than ten days prior to the April term 1927 of said court, purporting to find the issues in favor of the complainant in said bill, and decreeing the dissolution of said marriage relation.

Thereafter, plaintiff in error sued out a writ of error from this court to reverse said decree. On September 26,1929, an affidavit was filed in this court, stating that the said Bruce L. Brayton departed this life on February 28,1929, and setting forth the names of his heirs. By leave of this court, said heirs were made defendants in error. Thereafter, on September 16, 1929, defendants in error filed the following plea:

“Now come the defendants in error by John R. Thompson, their attorney and for plea herein say: that the said I. Grace Brayton, plaintiff in error, ought not to be allowed to maintain her said writ of error herein; because they say, that the said Bruce L. Bray-ton, complainant, in whose favor the said decree of divorce was entered by the Circuit Court of Ogle County on the 12th day of May, A. D. 1927, against said I. Grace Brayton, defendant, plaintiff in error, departed this life on or about the 28th day of February, A. D. 1928, intestate, leaving these defendants Harriet M. Brayton, his mother, and Louis F. Brayton and Earnest G. Brayton, his brothers, his heirs at law; that the said Bruce L. Brayton in his lifetime, to-wit: on the 10th day of March, A. D. 1927 and during the pendency of said divorce proceeding; assigned and delivered to said I. Grace Brayton a large amount of valuable property, to-wit: One hundred shares of the capital stock of Kable Brothers Company, a corporation, of great value, to-wit: of the value of Thirteen Hundred Dollars ($1,300), in settlement of all claims and demands of said I. Grace Brayton on account of the entry of said divorce decree; that said I. Grace Brayton, having then and there full knowledge of the pendency of said divorce proceeding, and acquiescing in the entry of said decree, accepted and received said corporate stocks in settlement of all claims and demands by her incident to the entry of said decree. These defendants in error further say that the said I. Grace Brayton, plaintiff in error, ought not to maintain her said writ of error against these defendants, because they say that by so acquiescing in the entry of said decree of divorce, and receiving said property in satisfaction of all demands by her on account thereof as above set forth, she the said I. Grace Brayton released all errors if any committed, by said Circuit Court in the rendition of said decree and has estopped herself from prosecuting this writ of error; and this these defendants in error are ready to verify, wherefore they pray judgment if the said plaintiff in error ought to maintain her said writ of error against these defendants. ’ ’

A motion was filed by plaintiff in error to strike said plea from the files. This motion was afterward withdrawn, and by leave of this court a demurrer to said plea was filed.

It is first contended by counsel for plaintiff in error that said plea is fatally defective for the reason that it purports to be a plea of release of errors, and that the matters and things averred in support thereof all occurred prior to the rendition of said decree.

The suing out of a writ of error in the Supreme or Appellate Court is the commencement of a new suit, and the assignment of errors performs the office of a declaration, each item of the assignment being regarded as a count. Cass v. Duncan, 260 Ill. 228-230, citing Williston v. Fisher, 28 Ill, 43; Ditch v, Sennott, 116 Ill. 288; Davis v. Lang, 153 Ill. 175; and to the same effect is People v. Sleight, 302 Ill. 45-47; Scott v. Scott, 304 Ill. 267-272; Fishburn v. Green, 291 Ill. 350-351.

A defendant in error may confess error or may join in error, which operates as a demurrer to the assignment, or he may plead some subsequent fact operating to release the errors assigned and to bar the prosecution of the writ. Cass v. Duncan, supra, 230.

A plea of release of errors must allege some fact which will be effective to waive or release the errors assigned. Cass v. Duncan, supra, 230. If a party to a judgment or decree accepts benefits conferred upon him by it, such acceptance operates as a release of errors. Holt v. Rees, 46 Ill. 181-183; Schaeffer v. Ardery, 238 Ill. 557-559; Langher v. Glos, 276 Ill. 342-344; Hawkins v. County of Lake, 302 Ill. 213-215; Chaney v. Baker, 302 Ill. 481-484; Fishburn v. Green, 291 Ill. 350-353; Gridley v. Wood, 206 Ill. App. 505.

The transfer alleged to have been made by Brayton to plaintiff in error was made more than two months prior to the entry of said decree. As no advantage or benefit is alleged to have been accepted by plaintiff in error under the provisions of said decree, said plea cannot under the foregoing authorities be sustained as a plea of release of errors.

Counsel for defendants in error contend that, notwithstanding said plea set forth ‘ ‘ she, the said I. Grace Brayton, released all errors, if any committed,” etc., it is not in fact a plea of release of errors, but a plea setting up matters in pais, in bar of the errors assigned. The question therefore arises as to the sufficiency of said plea as a plea in bar.

Pleas to writs of error are governed by the same rules as apply to other pleadings, and all intendments are to be taken most strongly against the pleader. Beardsley v. Smith, 139 Ill. 290; Ward v. Williams, 278 Ill. 227-230.

The plea here in question fails to set forth upon what terms the alleged transfer of property, etc., was made by said deceased to plaintiff in error, and on what terms plaintiff in error accepted the same. It was therefore insufficient, on account of its uncertainty. Ward v. Williams, supra, 230.

The effect of a plea in bar is to confess the errors assigned. Thornton v. Houtze, 91 Ill. 199-220; Mahony v. Mahony, 139 Ill. 14-15; George v. George, 250 Ill. 251-252; Great Northern Refining Co. v. Jeffris Lumber Co., 308 Ill. 342-347; McCormick v. Higgins, 190 Ill. App. 241-250. In the latter case, this court at page 250 said:

“Where pleas in bar are filed to a writ of error and said pleas are not sustained because had in law upon demurrer, or because not supported by the proofs upon trial, they confess the errors assigned, and the judgment or decree must be reversed, whether the supposed errors assigned do in fact exist upon the record or not, and the court which finds the pleas insufficient will not consider whether the errors are justly assigned or not; and, on the other hand, if the pleas are sustained, the judgment or decree must be affirmed.” Citing Austin v. Bainter, 40 Ill. 82; Clapp v. Reid, 40 Ill. 121; Ruckman v. Alwood, 44 Ill. 183; Holt v. Rees, 46 Ill. 181; Thornton v. Houtze, 91 Ill. 199; Page v. People, 99 Ill. 418; International Bank of Chicago v. Jenkins, 104 Ill. 143; Mahony v. Mahony, supra; Beardsley v. Smith, 139 Ill. 290; Martin v. Commissioners of Scotland Township, 150 Ill. 158; Schaeffer v. Ardery, 238 Ill. 557; Peterson v. Manhattan Life Ins. Co., 244 Ill. 329; George v. George, supra. To the same effect is Great Northern Refining Co. v. Jeffris Lumber Co., supra, 347.

While, under section 109 of the Practice Act, Cahill’s St. ch. 110, ¶ 109, where a demurrer is sustained to a plea of release of errors, the defendant is not deprived of the right to join in error, this right does not obtain where a plea in bar of errors is held insufficient. Great Northern Refining Co. v. Jeffris Lumber Co., supra, 347; McCormick v. Higgins, supra. It would therefore follow that, inasmuch as we have held said plea insufficient, the decree would have to be reversed, unless a sufficient plea be filed. From an examination of the authorities, we are satisfied that leave may be granted to amend pleas of this character. Austin v. Bainter, supra, 85. In McCormick v. Higgins, supra, this court at page 250, in discussing this question, said:

“It is contended that the court had no power to permit more than one plea to be filed. Whatever the rule may have been at ancient common law or is in other jurisdictions, the practice in this State permits several pleas and several replications to pleas to be filed to a writ of error. Austin v. Bainter, supra; Corwin v. Shoup, 76 Ill. 246; Thornton v. Houtze, supra; Page v. People, supra; Trapp v. Off, 194 Ill. 287; Schaeffer v. Ardery, supra; Lott v. Davis, supra. In Austin v. Bainter, supra, there were two pleas, to which plaintiff in error demurred, but, before the court rendered a judgment upon the demurrer, leave was given defendant in error to file amended pleas. Amended pleas to a writ of error therefore can be filed, and it may well be that defendant in error was entitled to have his motion of May 21st, to amend his pleas, granted, but the same object was accomplished by permitting him to file additional pleas. As more than one plea can be filed to assignments of error, and as amended pleas can be filed thereto by leave of court, it must follow that power exists in the court to permit additional pleas to be filed.”

We thought it well to call attention in this opinion to such right to amend, for the reason that if, as contended by counsel for defendants in error, the property rights of the parties to said divorce proceeding were in fact adjusted, then defendants in error should have the right to properly plead the same.

The demurrer to said plea will he sustained, with leave to defendants in error, if they so desire, to apply at the first day of the next term for leave to amend said plea.

Demurrer sustained.


text:
    Richard T. Stearns, Appellee, v. Hattie Witt et al., Appellants.
    Gen. No. 8,227.
    Heard in this court at the May term, 1930.
    Opinion filed August 27, 1930,

      Wm. Biester, for certain appellant.
    William L. Pierce, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.

Sarah Jane Witt, a resident of Boone county, Illinois, died testate March 22,1904, leaving her surviving Isaac N. Witt, her husband, but leaving no child or children or descendant of any child or children. At the time of her death, the deceased owned a certain residence property in the City of Belvidere. The will of said deceased consisted of seven paragraphs. The first paragraph provided for the payment of debts, funeral expenses, etc. The second provided that after the payment of said debts, expenses, etc., all the rest of the property of said deceased, whether real or personal, should go to her husband, for life, with power “to sell, dispose of, deliver and convey,” the same as the deceased could do if living. The third, fourth, fifth and sixth paragraphs are as follows: “Third, — After the death of my said husband, I will and direct that all that shall then remain of my said estate, shall as soon as may be thereafter, be converted into money and the sum of One Thousand Dollars ($1,000.00) thereof paid to Richard T. Stearns, who has lived with myself and husband for some time, and to whom I hereby give and bequeath the said sum of One Thousand Dollars, to him and his heirs forever.

“Fourth, — I give and bequeath unto Helen Anderson (formerly Helen Chase) if living at the time of the death of my said husband, the sum of Five Hundred Dollars ($500), to her and her heirs forever, provided however that, if she shall not be living, then what I have herein given and bequeathed to her shall be considered and treated as a part of the rest, residue and remainder of my estate, hereinafter mentioned, and shall go as hereinafter provided in the sixth paragraph of this will.

“Fifth, — I give and bequeath unto each of the children of my husband’s brothers and sisters, who shall be living at the time of the death of my husband, the sum of Fifty Dollars ($50), to them and their respective heirs forever, meaning and intending hereby to give to each of my husband’s nieces and nephews living at the time of his death, the said sum of Fifty Dollars.

“Sixth, — All the rest, residue and remainder of my estate, remaining after the death of my said husband, either real, personal or mixed property and wheresoever the same may then be found to exist, I give, devise and bequeath unto Myra Johnson, Earl Lucas and Alice C. Babcock, children of my deceased sister, Edna Lucas, to be divided among them equally share and share alike, to them and their respective heirs forever, including the gift and bequest hereinabove to the said Helen Anderson, if she shall not be living at the time of the death of my husband.”

The seventh paragraph nominated the said Isaac N. Witt to be the executor of said will, but did not empower himf as such to sell said real estate.

Said will was duly admitted to probate, and Isaac N. Witt qualified as the executor thereof. Thereafter, on January 14, 1928, Isaac N. Witt departed this life, without having sold or disposed of said real estate. Prior to the death of said Isaac N. Witt, Helen Anderson, mentioned in the fourth paragraph of said will died, and Earl Lucas, one of the residuary legatees, died leaving him surviving no child or children or descendant of any child or children, but leaving him surviving appellant Sylvia Lucas, his widow.

Richard T. Stearns filed a bill in the circuit court of said county for the sale of said real estate and for the appointment of a commissioner to make such sale and to distribute the proceeds thereof under the provisions of said will and the order of the court. Appellants, as persons interested in the premises in question and the proceeds thereof, were made parties defendant to said bill.

Failing to answer said bill, appellants were defaulted, and a decree pro confesso was entered against them. On the hearing, the court ordered a sale of said premises, and the payment of the specific legacies mentioned in said will. Grace DeWolf was appointed commissioner to make said sale and distribution. Said property was sold for $3,700 and, after the payment of said specific legacies, expenses, etc., there was left a balance of $1,578.56, to be disposed of under the provisions of paragraph 6 of said will.

The litigated question arising on the record is with reference to the right of Sylvia Lucas in the one-third interest of said balance which would have gone to her husband had he survived. The chancellor held that said fund should be considered as real estate, and found the interest of Mrs. Lucas therein to be $305.62. Counsel for Mrs. Lucas insists that the court erred in said finding, and strenuously contends that said fund should be considered as personal property, and that só considered she is entitled to a one-third interest in said fund.

On the other hand, counsel for appellee insist in support of said decree that, while paragraph 3 orders said real estate sold, paragraph 6 discloses that said real estate should be converted into personal property only so far as necessary to pay costs of administration, etc., and the specific legacies mentioned in said will. The principal case relied upon in this connection is Bennett v. Bennett, 282 Ill. 266.

In the Bennett case, the will of the testator, Alvin Bennett, contained eight paragaphs, the second, fourth, fifth, sixth and seventh being as follows :

“Second — It is my will and I hereby direct my executor to pay to my wife, Margaret Bennett, the part or portion of my estate which may be legally due her by virtue of her rights under and in conformity to the laws of the state of Illinois.

"Fourth — It is my will and I hereby direct my executor to sell at public sale, according to the laws of the State of Illinois, any and all of the real estate of which I may die seized, for cash in hand, to the highest and best bidder.

“Fifth — After the payment of all my just debts and the payment of what money may be due my wife, Margaret Bennett, as her part or portion of my estate, and the payment of all costs connected with the settlement of my estate, it is my wish that the remainder be divided as follows:

Sixth — I give, devise and bequeath to my daughter, Olive Bennett, the sum of five hundred dollars ($500) in cash.

‘ ‘ Seventh — It is my will that the remainder, after deducting said bequest of $500, be equally divided among my surviving sons and daughters, share and share equally. ’ ’

The court had before it for determination in the Bennett case the question as to whether the interest of said widow was to be determined on the theory that the real estate had been converted into personal property, or on the theory that it had not been so converted. The court, in discussing this question, at page 276, says:

“Language similar to that used in the second clause of the will under consideration occurs in a great many wills, and it must be assumed that it was used in this will with knowledge of the law in this State; . . . it must be assumed that, as the testator used such language in the will, it was his intention, to be gathered from the language of the will, to give his wife no more than she would get if he had died intestate, and any construction which would increase' the portion of his estate given to her would be contrary to the intent to be gathered from the language of the will. . . . Accordingly, the rights of the widow as fixed by the will are her statutory rights of homestead and dower and her widow’s award.”

In the present case, the rights of the husband of the testatrix are not involved, he having died before the bill was filed. The question here for determination is as to whether it was intended that the three persons named in the will of Sarah Jane Witt, deceased, should take the balance of said proceeds as personal property or as real estate. If it was intended that they take said balance as personal property, then, under the provisions of the statute, Mrs. Lucas would take the entire one-third which would have gone to her husband had he survived.

The payment of the court costs, expenses of administration, etc., and said legacies, consumed more than one-half of. the proceeds of the sale of said property. Except for the sale of said real estate, said legacies could not have been paid.

The intention of the testator, if not inconsistent with the established rules of law or public policy, must govern. This intention must be gathered from the whole will, and all its parts taken together. Meins v. Meins, 288 Ill. 463-465; Hamlin v. United States Express Co., 107 Ill. 443-450.

Paragraph 6 is of a residuary character. This is clearly disclosed by the fourth and sixth paragraphs. The 4th provides that Helen Anderson, if living at the time of the death of the husband of said testatrix, is to be given $500, and, if not so living, said bequest “shall be considered and treated as a part of the rest, residue and remainder of my estate . . . and shall go as herein provided in the sixth paragraph of this will.” The sixth paragraph provides that, in the event that Helen Anderson should not be so living, said bequest should pass under paragraph 6 of said will. The use of the words “devise,” and reference to the property as “real, personal or mixed” would not have the effect of giving to the balance of said funds the character of real estate. In discussing a question of this character in Jansen v. Godair, 292 Ill. 364, the court at page 376 says:

“Under the direction of the testator that the trustees shall convert all realty into cash, this estate is to be considered as personal property. It has long been the established rule in this State that where a testator directs that his entire estate shall be first converted into money, the estate is to be treated as a devise of money and not of land. (Baker v. Copenbarger, 15 Ill. 103; Jennings v. Smith, 29 Ill. 116; Rankin v. Rankin, 36 Ill. 293; Crerar v. Williams, supra; Bispham’s Principles of Equity, 307.) Under this will the duty to convert all real estate into money is imperative. Not a single bequest of the will can be satisfied without the payment of money.”

To the same effect is Teater v. Salander, 305 Ill. 17-21. In Crerar v. Williams, 146 Ill. 625, the court at page 641 says:

“It is the well settled rule that all lapsed or void gifts of personal property fall into a general residuary bequest."

In English v. Cooper, 183 Ill. 203, the court at page 208 says:

“Under the sixth clause of the will the executor was directed and empowered to sell at public sale, to the highest and best bidder, the forty acres, . . . and to convey the same by deed or deeds to the purchaser, and out of the proceeds thereof, after paying the expenses of sale, the testator directed the payment of four legacies aggregating $1,500, two of which are the lapsed legacies, $250 to Mary E. McPain and $500 to the school trustees. The land sold for $1,700, and having been converted into money, under the provisions of the will, to be distributed among the legatees, it must be treated as a devise of money and not of land, as held by this court in Baker v. Copenbarger, 15 Ill. 103, and is to be regarded as personal property. Jennings v. Smith, 29 Ill. 116; Rankin v. Rankin, 36 Ill. 293; Crerar v. Williams, 145 Ill. 625.

“In Crerar v. Williams, supra, we said (p. 641): ‘It is the well settled rule that all lapsed or void gifts of personal property fall into a general residuary bequest, instead of being treated as intestate estate, descending to the heir-at-law, unless a contrary intention on the part of the testator clearly appears. The rule and reason for it are clearly stated in Cambridge v. Rouse, 8 Ves. 12, and substantially adopted in Taylor v. Lucas, 14 N. C. 215, as follows: “No rule is better established as to personal estate, though it is otherwise as to real, that a residuary clause carries not only everything not disposed of, but everything that in the event turns out not to be disposed of, as by lapse and the other means specified in the cases. (1 Ves. Jr. 109, 110; Ambler, 138; 8 Ves. Jr. 25; 4 id. 732; 15 id. 509.) The law raises a presumption in favor of the residuary legatee against every one except the particular legatee.” ’ In Mills v. Newberry, 112 Ill. 123, and in Woman’s Union Missionary Society v. Mead, 131 Ill. 338, this court recognized and approved this rule.”

It should be observed that, while Myra Johnson and Alice 0. Babcock appear in the title of the cause as appellants, they disclaimed any dissatisfaction with the decree, and filed briefs in support thereof.

Without going into a further discussion of the authorities, we are of the opinion and hold that, taking the will of the testatrix into consideration in its entirety, the balance remaining after the payment of said specific legacies, costs of administration, etc., amounting to $1,578.36, should be held to be personal property and as such, appellant Sylvia Lucas is entitled to the one-third thereof.

For the reasons above set forth, the decree of the trial court will be reversed and the cause will be remanded, with directions to enter a decree in conformity with this opinion.

Reversed and remanded with directions.