author: Mr. Justice Crow

text:
    The People of the State of Illinois, Defendant in Error, v. Alex Bandy, Plaintiff in Error.
    Gen. No. 7,839.
    1. CbijUINal procedure — sufficiency of information failing to aver facts negativing applicability of statutory exceptions. An information under the Prohibition Act fails to state facts sufficient to constitute a crime where the various offenses charged in it are merely described as being unlawful acts, and there are no averments of facts which sufficiently charge that those acts do not come within the exceptions and are therefore prohibited by the statute.
    2. Criminal procedure — effect of plea of guilty to information insufficient to charge any offense. The effect of a plea of guilty to a count of an information is only to admit whatever offenses were therein charged, and where the allegations of the count are insufficient to charge any offense, the plea does not cure the fatal defect in the information.
    3. Criminal procedure — right to review of conviction following plea of guilty to information charging no offense, where fine imposed paid. A writ of error will lie to review a conviction based upon a plea of guilty, upon an assignment that the judgment is erroneous because the information failed to charge any offense, although the defendant’s fine under such conviction was paid, and on such review the judgment will be reversed.
    4. Payment — involuntariness of payment of fine where avoidable by suing out writ of error and ashing supersedeas. Payment of a fine imposed on conviction of an offense cannot be deemed involuntary where at the time of making such payment the defendant could have avoided its payment by suing out a writ of error and asking for a supersedeas staying enforcement of the penalty.
    5. Criminal procedure — right to restitution of fine paid upon conviction of offense, after reversal of judgment on writ of error. Notwithstanding that a judgment of conviction will be reversed, on writ of error, where it appears that the conviction is based upon a plea of guilty to an information which failed to charge any offense, although the defendant’s fine pursuant to such conviction has been paid by another, restitution of the fine will not be granted, the fact that the defendant pleaded guilty showing that he was guilty of violations of the statute under which the information was laid, and negativing the existence of reasons which should appeal to the conscience of the court.
    Error by defendant to the County Court of Jersey county; the Hon. Mark Bradburn, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed.
    Opinion filed December 31, 1925.
    O. H. Richards and G. G. Reardon, for plaintiff in. error.
    Richard Clyde Chappell, State’s Attorney, for defendant in error.
   Mr. Justice Crow

delivered the opinion of the court.

April 21, 1923, the State’s Attorney of Jersey County filed an information in the county court charging Alex Bandy, plaintiff in error, and Sarah Bandy with violation of the Prohibition Act of the State of Illinois. The information contained nine counts. At the May term of the county court the charges were dismissed as to Sarah Bandy and all of the counts of the information except the first were dismissed as to plaintiff in error. To the first count of the information he entered a plea of guilty and was fined $500 and sentenced to serve a period of 60 days in the county jail. The jail sentence was remitted for the reason that the defendant “had served nearly two months in jail.” The judgment as recorded further recites: “And now comes Bransom Dorsett and pays the fine and costs in full for Alex Bandy. ’ ’ Defendant has sued out a writ of error to reverse the judgment of conviction. He assigns as error that the information was defective and failed to state sufficient facts to constitute a crime under the laws of this State, and that he was therefore erroneously convicted of a crime even though he pleaded guilty to the information. He asks that the judgment be reversed and that the amount of the fine paid be restored to him.

The material part of the first count of the information charges that the plaintiff in error “did then and there unlawfully manufacture, sell, barter, transport, deliver, furnish and possess intoxicating liquor, while the said County of Jersey was then and there prohibition territory, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the People of the State of Illinois.”

It is urged that this count of the information is bad for duplicity since several distinct offenses are charged therein. Section 3 of the Illinois Prohibition Act [Ca-hill’s St. ch. 43, [[3] prohibits the manufacture, sale, barter, transportation, delivery, furnishing or possession of any intoxicating liquor except as authorized in the Act. Section 20 prohibits the possession of any liquor intended for use in violating the Act. Section 30 provides in part that in any information for the violation of the Act, separate offenses may be united in separate counts and that the defendant may be tried on all at one time and the penalty for all offenses be imposed. We do- not decide whether for this assignment of error the judgment should be reversed under the circumstances now presented to us.

A more serious objection is urged against the information. The various offenses charged in it are merely described as being unlawful acts and there are no averments of facts which sufficiently charge that those acts do not come within the exceptions, and therefore are prohibited by the statute. Under the decisions the information was clearly bad in substance. It obviously fails to state sufficient facts to constitute a crime. People v. Martin, 314 Ill. 110; People v. Barnes, 314 Ill. 140; People v. Wallace, 316 Ill. 120; People v. Elias, 316 Ill. 376; People v. Peiscz, 226 Ill. App. 363.

Although the defendant pleaded guilty to the first count of the information, the effect of the plea was only to admit whatever offenses were charged therein and since the allegations were insufficient to charge any offense, the plea would not cure the fatal defect in the information. The necessary averments go to the jurisdiction of the subject matter. People v. Wallace, 316 Ill. 120; People v. Brown, 312 Ill. 63; Klawanski v. People, 218 Ill. 481. For this reason judgment of the county court of Jersey county was clearly erroneous.

Upon the judgment of conviction the court imposed a sentence of both fine and imprisonment but the sentence of imprisonment was remitted. After this was done the fine was paid by another for the plaintiff in error. He has not sued out the writ of error until nearly two years after the judgment and payment of the fine. It has been held by the courts of other states that where the fine has been paid and the defendant discharged, the right to review, either by means of appeal or by writ of error, has been lost and that a writ of error or appeal will be dismissed. Kitchens v. State, 4 Ga. App. 440, 61 S. E. 736; State v. Wells, 127 Minn. 252, 149 N. W. 286; State v. Pray, 30 Nev. 206, 94 Pac. 218; Eutsler v. Commonwealth, 154 Ky. 35, 156 S. W. 855; Washington v. Clemend, 49 Ore. 12, 88 Pac. 305. The basis of these decisions, however, seems to be that where the fine was paid, a judgment of reversal could accomplish no substantial benefit. But the case at bar where the judgment is erroneous because no crime was charged in the information presents a different question. We think, therefore, that plaintiff in error has the right to have the case reviewed upon writ of error and to have the erroneous judgment of conviction reversed even though he has paid the fine imposed by the county court and this conclusion is supported by the cases of Johnson v. State, 172 Ala. 424, 55 So. 226; State v. Chicago Great Western R. Co., 125 Minn. 332, 147 N. W. 109, and People v. Marks, 64 Misc. 679,120 N. Y. Supp. 1106.

Plaintiff in error in addition to prayer for reversal asks that this court enter a judgment restoring to him the amount of the fine which has been paid under the erroneous conviction. The question presented by this prayer is an interesting one and seems to be one of first impression in this State so far as the research of counsel has shown. The right to recover back a fine or penalty paid in a criminal proceeding is treated in an extensive note in 26 A. L. R. 1523, in which a large number of cases from various jurisdictions is collected. The test by which the right of recovery is determined seems to be whether the payment can be said to have been a voluntary or an involuntary one. Of course, in one sense the payment of a fine is always involuntary since it would not be made if a criminal prosecution was neither instituted nor threatened. But where a fine has been paid under the advice of counsel in order to settle the case or to avoid penalties for other offenses or the trouble and expense of an appeal, the payment is said to be a voluntary one. Ferguson v. Butler County, 297 Mo. 20, 247 S. W. 795; Houlehan v. Kennebec County, 108 Me. 397, 81 Atl. 449. And it seems to be quite generally held, where the question has arisen, that where, at the time of the payment of a fine which has been imposed upon him, the accused has the right to an appeal and pays the fine before appealing, the payment will be deemed a voluntary one and the fine cannot be recovered back even though the iconviction is set aside. D’Aloia v. City of Summit, 89 N. J. L. 154, 97 Atl. 722; Harrington v. City of New York, 40 Misc. 165, 81 N. Y. Supp. 667; McKee v. Anderson, Rice (S. C.) 24; State v. Pray, supra. There ought to be no distinction between the effect of an appeal, and a writ of error, both seeking the same end.

It is clear that at the time plaintiff in error paid the fine in the case at bar he could have avoided its payment, or imprisonment for his failure to pay, pending the review of his conviction, by suing out a writ of error and asking for a supersedeas from this court staying the enforcement of the penalty. Instead of doing so he chose to pay the fine and made m> effort to secure a review of his conviction or a recovery of the sum paid for a period of a year and a half. It need not be said that if a friend would pay the fine of $500 and costs, he would not in all probability have hesitated to become surety on a supersedeas bond.

It has been held by some courts that in a proper case, when the judgment imposing a fine which has been paid is vacated or reversed on appeal, the reviewing court may order the restitution of the amount paid. New Jersey Society v. Knoll, 77 N. J. L. 138, 71 Atl. 116; 25 C. J. 1165. But the defendant who has paid the fine has no strict legal right upon the reversal of the judgment to an order of restitution even in jurisdictions allowing it, and whether the latter shall be granted is a matter resting in the sound discretion of the Appellate Court. Commonwealth v. Gipner, 118 Pa. St. 379, 12 Atl. 306; Hazleton v. Birdie, 10 Kulp (Pa.) 98; 25 C. J. 1165; 2 R. C. L. 212. And an order of restitution may be denied when in equity and in good conscience plaintiff in error is not entitled to recovery. 2 R. C. L. 293, and cases cited. In their brief and particularly in their reply brief, counsel for plaintiff in error have insisted upon his right to recover the amount of the fine which he has paid on the ground that in equity and in good conscience he is entitled thereto. We know of no equity in a criminal statute. We are of the opinion that under the facts in this case the contention ought to be resolved against him on that ground. His right thereto is strictly a matter of law. Counsel admit in their briefs that upon plaintiff in error entering his plea of guilty to the first count of the information the other counts were dismissed, and that the charges in all counts were dismissed as to his wife. Furthermore, the fact that he pleaded to the charges contained in the information, even though they are not sufficient to charge a crime, shows that he was guilty of violations of the Prohibition Act. There is nothing of equity or good conscience in that appealing to this court. Instead of standing on his rights when arraigned, and if a motion to quash the charge were denied, obtain a supersedeas pending review of his conviction upon a writ of error, his fine was paid by Bransom Dorsett, who is not before this court complaining, nor a party to this record. We think the plaintiff in error is not entitled in this proceeding to restitution. The judgment of conviction must be reversed.

Judgment reversed.


source: Caselaw Access Project

license: Public Domain

text:
    O. M. Sizemore, Appellee, v. John McDaniel, Appellant.
    Gen. No. 7,889.

      Damages — measure for breach of covenant against incumbrances. The measure of damages, in an action by a grantee of realty against his grantor based upon a breach of the grantor’s covenant for possession and the exclusive right thereof, resulting from the continued occupancy of a tenant of the premises claiming rights under an agreement with the grantor, is the difference, if any, between the purchase price and the depreciated value of the premises in consequence of the incumbrance created by the agreement with the tenant.
    Appeal by defendant from the Circuit Court of Edgar county; the Hon. Augustus A. Partlow, Judge, presiding. Heard in this court at the October term, 1925.
    Reversed and remanded.
    Opinion filed December 31, 1925.
    Wilbur H. Hickman and Acton, Acton & Snyder, for appellant.
    O’Hair, McClain & Bristow, for appellee.
   Mr. Justice Crow

delivered the opinion of the court.

Sizemore brought suit in assumpsit against McDaniel, filing two special counts and the common counts. The special counts are substantially the same. For the purpose of the disposition of the case it is necessary at this time only to state the substance of the first. It avers that plaintiff contracted with defendant for the purchase of certain real estate for the price of $6,100 and that defendant conveyed it to plaintiff by warranty deed dated March 19,1924; that at the time of the purchase and conveyance, defendant promised and agreed, in consideration of the purchase price, to deliver possession of said premises to the plaintiff on or before May 1,1924, free and clear of any lease; that the defendant failed and neglected to deliver np possession of said premises to the plaintiff and thereby the plaintiff was deprived of the use and rents and profits from said premises to the damage of the plaintiff in the sum of $2,500.

Attached to the declaration was a statement of account under the several money counts and a statutory warranty deed, warranting and conveying a city lot in the City of Paris to the plaintiff. Defendant filed a demurrer to the declaration upon which the trial was had. It was overruled and defendant filed two pleas, the general issue in assumpsit and a plea of the statute of frauds. Upon this state of the record the cause was tried by a jury which returned a verdict for plaintiff in the sum of $800. Motion for new trial having been overruled, judgment was rendered for the amount of the verdict and for costs and this appeal followed.

It appears from the evidence that at the time the conveyance was made the premises were occupied by tenants. Plaintiff knew the fact. He made no inquiry of anyone in possession as to the nature or extent of their tenancy. He asked McDaniel as to the nature of the tenancy and testified McDaniel told him there was no lease on the premises, that the tenants rented “a month at a time, ’ ’ and that he would get possession the first day of May. He further testified McDaniel said: “I will give you possession. I want the April rent. When you get the money we will go> get the deed. ’ ’ He delivered to defendant the checks for the property and defendant said to him, “the first day of May I will have the building for you. ’ ’ He also told plaintiff that to get the tenants out he might have to take it through a justice of the peace court. Plaintiff began the construction of the walls of a building on the lot and was stopped by Dawson, a tenant of the premises. The agreement oí understanding between plaintiff and defendant was that defendant was to have the rent for the month of April and that he would pay the taxes. Defendant seems to have brought two unsuccessful forcible entry and detainer suits against Dawson. These facts are stated as favorably to appellee as the record justifies.

We are of the opinion that the disposition of the case depends upon the determination of the assignment of error in giving the following instruction:

“The Court instructs the jury that if you believe from the preponderance of the evidence in this case that the plaintiff purchased from the defendant certain real estate, and the defendant agreed to give possession of said premises upon a stated time after the delivery of the deed, and possession of the premises was not delivered up to the plaintiff in accordance with the agreement to deliver possession, if any has been shown, then you are instructed that the plaintiff is entitled to recover for the fair cash rental value of said premises from the time possession was promised up to the time the plaintiff obtained possession.”

By section 14 of chapter 80, Smith-Hurd’s Statutes [Cahill’s St. ch. 80, ¶ 14], the grantee in the deed succeeded to all the rights and remedies by entry, action or otherwise, for the nonperformance of any agreement in the lease, or for the recovery of any rent or cause of forfeiture as his grantor might have had if the title had remained in him. If Dawson was in possession of the premises under a contract with McDaniel, Sizemore succeeded to all of McDaniel’s rights as well as his obligations with regard to such tenancy. The suits brought against Dawson by McDaniel after the conveyance to Sizemore were ineffectual, if for no other reason, because he had no right he could legally assert against Dawson. Thomasson v. Wilson, 146 Ill. 384; Fisher v. Smith, 48 Ill. 184. All such rights, namely, the reversion at the expiration of the tenancy, had passed by his conveyance. The conveyance by which the reversion passed was the statutory warranty deed. By section 8 of chapter 30, Smith-Hurd’s Statutes [Cahill’s St. ch. 30, ft 8], it operated as a conveyance to the grantee in fee simple of the real estate described. It also operated as a covenant that at the time he executed and delivered it he was seized of an indefeasible estate in fee simple in the premises; that they were free from incumbrances; and that he warranted to the grantee the quiet and peaceable possession of such premises. Those covenants were obligatory upon him, his heirs and personal representatives as fully and with like effect as if written at length in such deed.

Granting, but not deciding, because the question is not presented, that an action of assumpsit will lie for the breach of the covenant against incumbrances, the theory of plaintiff’s case rests on the averment that the premises conveyed were occupied by a tenant under a demise of some sort from the grantor and for that reason the grantee was excluded from the enjoyment of the premises. Viewed as a mere breach of a term of the conveyance, damages are demanded for it. The broken term was that covenanting possession and right to possession against the world. The lease, whether for a month or for a number of months, was an incumbrance upon the premises, upon plaintiff’s theory of his rights. The measure of damages for the breach is the difference between the purchase price and the amount of their depreciation in value, if any, because of the incumbrance. Eppstein v. Kuhn, 225 Ill. 115 (124). The measure of damages stated in the instruction given on that subject was not the correct one. There is no reason for plaintiff recovering from his grantor “the fair cash rental value of said premises from the time possession was promised up to the time the plaintiff obtained possession.” If the tenant had a valid leasehold right in the premises, the vendee had the legal right to recover the rentals after the first of May. He agreed that his grantor should have them up to that time. He was entitled to them afterward. The law does not look with favor upon the demand of one who- stands supinely by and, knowing another is in possession of property he is paying for, makes no inquiry as to the right of him in possession. Possession is notice- to beware of the possessor’s rights.

We are of the opinion the court erred in giving the instruction complained of and in not granting a new trial on the ground the damages are excessive. The judgment is reversed and the ca, remanded.

Reverse cmd remmded.


author: Mr. Justice Grow

text:
    G. C. Outten Grain Company, Appellee, v. C. H. Grace and J. H. Uppendahl, Appellants.
    Gen. No. 7,909.
    Specific performance — enforcement of contract of sale of growing corn crop for delivery when matured. No grounds for equitable relief are presented by a bill alleging the sale to complainant by defendant of the latter’s growing crop of corn, and breach of defendant’s agreement to deliver the same on “husking days,” the complainant having an adequate remedy at law in an action for money had and received as to the sums paid by him for such corn, and the damages being neither uncertain nor difficult of ascertainment.
    Appeal by defendants from the Circuit Court of Macon county; the Hon. James S. Baldwin, Judge, presiding. Heard in this court at the October term, 1925.
    Reversed and remanded with directions.
    Opinion filed December 31, 1925.
    Whitley & Fitzgerald, for appellants.
    Lawrence C. Wheat and W. J. Carey, for appellee.
   Mr. Justice Grow

delivered the opinion of the court.

The record presents for review a decree rendered by the circuit court against appellants, defendants in the circuit court. Stripped of unnecessary verbiage, the bill averred that appellee, a corporation, was engaged in the business of buying and selling grain, and that appellant Grace was engaged in the occupation of farming. That on September 8, 1922, appellee purchased from Grace the com then growing and maturing at the stipulated price of 42 cents per bushel, the com to be delivered on “husking days”; that appellee delivered its memorandum of such sale to Grace and paid him as the purchase price of said com the sum of $2,418.48. It is further averred that Grace agreed to deliver the com to appellee at its elevator at Hervey City on husking days but afterwards asked for an extension of time for delivery on account of road conditions ; that he promised to crib the com and take care of it until he could make delivery and that the extension was agreed to by appellant, and that he did not deliver the com although the time had long since expired.

It is charged in the bill that as a consequence of the breach of his agreement to deliver com under the circumstances, appellant became a trastee for appellee and held the com in trust for its use and benefit. It is further charged that notwithstanding the sale of the corn by Grace in violation of his duty and in fraud of complainant’s rights, he was at the filing of the bill “about to or has pretended to sell said com to J. H. Uppendahl, and is about to or has delivered it to him, and if any such com is so delivered, the purchase money therefor should be required to be paid to your orator and the said Grace be compelled to deliver the remainder of such corn to your orator.”

The relief prayed is for delivery of the specific com sold and in default of the delivery of any portion of it that Grace be required to pay to appellee its “damages occasioned by such breach of contract and violation of his trust.” It is further asked that if Uppendahl had received any of the corn that he be required to pay to complainant, appellee, the value thereof.

A demurrer, general and special, was interposed to the amended bill and was overruled. Answer was filed by Grace denying the principal averments of fact in the bill, and most of the conclusions. He denied the equity of the bill and prayed the same relief as if he had pleaded or demurred. Uppendahl also answered, denying the principal facts averred against him. The cause was referred to the master who took the evidence and pursuant to the order of reference reported his conclusions and recommended a decree. The master found the facts substantially as averred in the bill. He also found that the evidence does not show Grace to be insolvent. Exceptions to the report and recommendations having been overruled, a money. decree was entered against appellant and other provisions were made in the decree upon contingencies we deem immaterial to notice.

The preceding statement is so extended as to show the nature of the controversy. The conclusion we reach renders it unnecessary to state many of the other facts appearing in the record. The first point made by counsel for appellants is that a court of equity had no jurisdiction of the case presented by the bill. Decided cases and treatises on the equitable jurisdiction are cited by them in support of the contention. Opposing this contention, counsel for appellee cite section 71, chapter 121a, Cahill’s Revised Statutes. They contend that the section is a legislative relaxation of the old rule against equitable aid by specific performance in sales of personal property in cases like that now presented.

To understand the section referred to, its history as well as its text must be noticed. The title of the act embracing this section is “An Act to make uniform the law relating to the sale of goods.” It became a law in 1915. It is one of a number of acts fostered by the American Bar Association, the purpose of which is to make uniform the law of the states adopting them. Many of the states have adopted it. It is a codification of the law concerning the sale of goods. It, with all the others, was formulated by the Committee on Uniform Laws of the American Bar Association. This particular Act was written by Williston, the author of the great American works on Contracts and on Sales. What is now stated in terse form in a code was formerly found in standard treatises stating the law of remedies under contracts of sales under varying conditions of fact. The second edition of Williston’s treatise on Sales is not only a treatise, but is a commentary on this Act.

The section of the Act relied on makes no change in the application of the remedy by specific performance from what it was before. It does not give the remedy where it did not exist before. Before the statute was enacted, specific performance might be compelled where there had been a sale of “specific or ascertained goods,” or under other well-defined circumstances. Therefore the contention now made in support of the decree for damages for failure to deliver the corn is unsound, unless the remedy would be available independently of the statute invoked. Williston on Sales, sec. 602, commenting on this section of the Uniform Sales Act, says:

“If damages are an adequate remedy, a court of equity will never grant specific performance, and it has been held, with perhaps too great stringency, that for breach of contracts for the sale of goods damages are, as a rule, an adequate remedy. Where, however, a chattel is unique or not purchasable in the market, specific performance has been granted, as for slaves, works of art, heirlooms and property valuable for sentimental reasons, vessels, valuable documents of various kinds.”

In support of the last proposition he cites McMullen v. Vanzant, 73 Ill. 190. The author deprecates the jurisdiction as limited, but until greater latitude of equitable jurisdiction has been authoritatively extended, we must abide by the old landmarks.

The first proposition of law stated by appellee’s counsel is that a bill for specific performance of a contract lies, although there may be a remedy at law, if it is not an adequate remedy. McMullen v. Vanzant, 73 Ill. 190, is cited as supporting the rule. The want of jurisdiction to afford the relief was urged. Mr. Justice Breese wrote the opinion, in the course of which he said, as quoted by counsel:

• “In very many of the bills filed for specific performance, actions at law could be maintained for damages, yet a party has never been heard to object that equity has no jurisdiction.”

This dictum of that great judge no longer holds true. In Anderson v. Olsen, 188 Ill. 502, also cited by counsel, two propositions involved in this case were announced, as disposing of the case for specific performance of á contract to sell a patent, which is personal property. The first proposition was concisely stated in the syllabus: “An objection to the jurisdiction of a court of equity on the ground of an adequate remedy at law may be taken by answer after a demurrer to the bill upon that ground has been overruled.” The second was: “Equity will not specifically enforce a contract for the sale of personal property, such as a patent, if compensation in damages furnishes ah adequate remedy at law.” Without extending this opinion by quotation from that, written by Mr. Justice Hand, it is sufficient to say the reasons supporting it are' irrefutable. Parker v. Garrison, 61 Ill. 250, relied upon to support the decree in this ease, is cited in support of the second proposition in the Anderson ease. The ground of inadequacy and the limitation of the rule authorizing a decree for specific performance of the sale of personal property as stated is the presence of “some element or feature in it to show that the relief at law might not be adequate, as where the thing contracted for has some special value to the vendee.” The Andersoni case presented features much stronger in favor of the equitable relief than the case at bar. The possibilities of a patent are much greater and the adequacy of monetary value much less easy of ascertainment than that of a crib of corn not shown nor averred to possess any peculiar value. In Whitney v. Burr, 115 Ill. 289, specific performance of a contract to sell a patent was allowed under the peculiar facts shown.

Adverting to the McMullen case, supra, it was one presenting the ideal elements for the exercise of the strong arm of a court of equity. The McMullens, husband and wife, while estranged, agreed to separate and live apart. Vanzant had married their only daughter. The McMullens, owning a tract of land while living together, had sold it to him and for which he executed his note. After the separation, the husband wishing to make provision for his wife, arranged with Vanzant to execute two notes in lieu of the first one made. This was done and one of the notes for $1,600, payable nine years after date and bearing 10 per cent interest payable annually, was delivered to Mrs. McMullen by her husband. They lived apart for a time. The son-in-law induced his mother-in-law to believe that her husband would by some means deprive her of the note. He told her he had consulted an attorney who advised him that her husband could deprive her of the note, and induced her to assign it to him. He agreed to keep it and at the proper time return it to her or give her a new note for the same amount bearing the same rate of interest and payable at the same time the old note was to be paid. Belying on the promise, she gave it to him. Having possessed himself of it he refused to return it to her or give her a new note but claimed he had purchased the first note from her, paid for it, and that it was his property. In the bill by the McMullens, who had become reconciled, stating the facts, the prayer was that defendant be decreed to pay her 10 per cent annually on the amount of the note and all interest that had accrued thereon, and that the decree be made a lien on the defendant’s real estate.

The circuit court dismissed the bill for want of equity. The Supreme Court reversed it and remanded it with directions to enter a decree requiring appellee (defendant) to perform his contract with her by executing a new note of the same tenor and effect as the one destroyed by him within a reasonable time to be fixed by the court, and in default that he be held in contempt and dealt with accordingly. In support of-the judgment of reversal, the court held that while an action at law would lie, it might not be an adequate remedy. Therefore they went to the heart of the matter by compelling him to execute a new note in lieu of the one he had destroyed, and 1 of the same tenor and effect.” Being a purchase money note for real estate it possessed a value in equity a mere judgment might not possess. It was due several years hence, bore a good rate of interest and for that reason had a value for the holder not possessed by a mere judgment at law. Then, too, defendant claimed he had purchased and paid for the note. It was essential to her rights to have that question determined presently, while all the parties to the transaction were alive. There is no analogy between that case and this now before us, and therefore is not authority for appellee nor against the contention of appellant.

Parker v. Garrison, 61 Ill. 250, cited by appellee, was begun by a bill in equity and arose out of a contract for the purchase from Parker by Garrison of a tract of land. Garrison went into possession and raised 3,000 bushels of com and 400 bushels of oats on the land. Being unable to carry out the purchase agreement, Garrison prevailed on Parker to release him from the purchase, with the agreement that Parker should treat him as a tenant and receive from him as a tenant one-half of the crops raised that year but all to be paid in com. Garrison delivered to grain storage people 600 bushels of com, storing it in his own name, and was hauling the remainder and storing it in the same way. Garrison was insolvent and the bill averred he was intending to defraud Parker out of his rent. All were made parties to the bill. It prayed that the storage people be restrained from delivering the grain to or paying Garrison therefor and that he be restrained from selling or mortgaging the grain. Demurrer to the bill having been sustained and the bill dismissed, the case was reviewed by the Supreme Court.

All that is held in the case is that the court below should have sustained the bill as an injunction bill. No other relief appears to have been sought. The ground of decision was, not that it was a proper case for specific performance, but on account of the insolvency of Garrison, complainant would lose his remedy if the storage company paid him for the com or if he disposed of it. What is said in the opinion about executing a tmst is not necessary to be said. What is further said equally lacks the character of judicial expression to make it authority to be relied on. The latter expression is that the mere contract for sale and delivery of a chattel cannot, as would a contract for sale in case of land, create a tmst. But it is as strong authority against appellee as the other is for him. The case of Ames v. Witbech, 179 Ill. 458, is one clearly involving interests in land, a complicated controversy between numerous parties with regard to the real estate transaction there presented and a clear case of tmst in the proper sense of that term. We may appropriately apply to it the observation of Chief Justice Mulkey in Cohn v. Mitchell, 115 Ill. 124 (131), with regard to McMullen, supra, “the case has but slight bearing, if any, on the one before us. ’ ’ In that case the elementary doctrine was announced with regard to specific performance of contracts relating to personal property. The doctrine is that a court of equity will not decree the specific performance of a contract relating to personal property unless there is some element or feature in it showing that the relief at law is not adequate, — as where the measure of damages resulting from the nonperformance of the agreement is uncertain or difficult to ascertain, or where the thing contracted for has to the complainant some intrinsic or special value.

There is nothing in this case rendering the ascertainment of damages difficult or uncertain. Appellee paid Grace for the corn. An action for money had and received would lie and as compensation for retaining the money legal interest would be allowed. Other counts and other grounds of action are available if that is not. There is no ground for equitable relief presented. Other errors are complained of but we do not consider them because it is unnecessary.

The decree of the circuit court is reversed and the cause remanded with directions to dismiss the bill.

Reversed and remanded with directions.


text:
    W. C. Radcliff and Hilda F. Livingston, Appellees, v. H. D. Hanger and Kate B. Maxfield, Appellants.
    Gen. No. 7,912.
    1. Appeal and error — prerequisites to reversal of judgment upon facts. The Appellate Court will not reverse a judgment upon' the facts unless it feels compelled to say, from an examination of all the evidence, that it does not support the verdict.
    2. Landlord and tenant — right to removable fixtures as between tenant and vendee of premises without notice. Where the vendee of premises occupied for business purposes by a tenant of the vendor took title to the property without notice of any claim by the tenant to the shelving, heating and lighting system and other removable fixtures, and the tenant, when his lease expired soon after the sale of the property, was permitted by the vendee to remain upon the premises for a portion of a month pending arrangements for removal, such tenant had no right, during such period of temporary occupancy, to remove the fixtures aforesaid, either at common law or under Cahill’s St. ch. 80, f 35.
    3. Landlord and tenant — propriety of instruction touching right to removable fixtures as between tenant and vendee without notice, ignoring alleged rights under statute. In an action by the vendee of premises occupied for business purposes by a tenant of the vendor, to recover the value of fixtures removed from such premises by the tenant after the termination of the lease and while he was in occupancy by permission of the vendee, an instruction authorizing a recovery by the vendee if the tenant, prior to the sale to plaintiff, admitted to him that he claimed no rights in the premises except as provided in the lease, was not subject to criticism as ignoring such tenant’s rights under Cahill’s St. ch. 80, 35, such statute having reference only to the right to removable fixtures as between landlord and tenant, and specifically restricting the right of removal to that period while the relationship existed.
    Appeal by defendants from the Circuit Court of McLean county; the Hon. Edward Barry, Judge, presiding. Heard in this court at the October term, 1925.
    Affirmed.
    Opinion filed December 31, 1925.
    William R. Bach, for appellants.
    Sigmund Livingston, for appellees.
   Mr. Justice Crow

delivered the opinion of the court.

This case comes on appeal from the circuit court of McLean county where the plaintiffs (appellees) obtained a judgment against defendants (appellants) for the sum of $450 and for costs.

Appellants had worked for J. L. Beath for many years and after his death for his widow, in the husiness of selling paints and accessories. The building in which the business was conducted was owned by Mr. Beath, and after his death, by his widow. Some time after the death of Mr. Beath, appellants bought the business and conducted it in the building in which it had always been conducted. The business seems to have been an old one. There were shelves in the building used for the merchandise therein. They were placed by Mr. Beath and remained there until a sale of the building to appellees in 1924. The controversy arises out of the removal by appellants of the shelving, certain heating and lighting system for the room consisting of electric light fixtures, appliances, switches, electric wire conduits, and electric wires in the conduits utilized in the building as part of the lighting system. After the sale of the real estate to appellees, appellants moved out and took away all the articles mentioned. Thereupon suit was brought to recover from appellants the value of the articles taken away. At the trial by jury a verdict was returned for $450, on which judgment was rendered after motion for new trial had been overruled.

There is some controversy as to whether the shelving removed by appellants was attached to the walls and the first or subfloor. There were two floors in the room, one known as the subfloor and the other a finished floor laid on it. Reading all the evidence as abstracted the most that can be said is, it is not certain whether the shelves were fastened to the walls and to the subfloor. There was a contrariety of evidence as to that, but the most reasonable conclusion to be drawn from all the evidence is that the shelves were at some time nailed to the subfloor, and to cleats fastened in or to the walls of the room. They had at some time, surely, if the testimony of some of the witnesses is true. Appellants knew for some time they could not get a new lease and must move out. That the heating apparatus, wires and conduits had been fastened is not a matter of doubt. Some witnesses say that in pulling the nails holding the shelves some of the bricks of the wall were tom out. The shelving had been in the building a long time. One witness said he had known it 40 years and he thought the shelving had been there all the time. This witness said there were 75 or 100 nail holes altogether that he saw. The jury having heard all the evidence and seen the witnesses and observed their manner of testifying were in better position to appraise the evidence than we who only see it as presented in an abstract. The preponderance of evidence is not determined by the number of witnesses. We are not warranted in reversing the judgment upon the facts unless we are compelled to say from an examination of all the evidence it clearly does not support the verdict. This we cannot say.

It is contended that as matter of law the verdict was wrong and that the judgment, therefore, was erroneous because under section 35 of chapter 80, SmithHurd’s Statutes, relating to Landlord and Tenant [Cahill’s St. ch. 80, [[35], the tenants had the right to remove the fixtures. That section is: “Subject to the right of the landlord to distrain for rent, a tenant shall have the right to remove from the demised premises all removable fixtures erected thereon by him during the term of his lease, or of any renewal thereof, or of any successive leasing of the premises while he remains in possession in his character as tenant.”

Appellants relying on the Act of 1905 for their protection, the legal question presented, independent of any question of fact is, does the law apply to the case made by them on the facts? Fellows v. Johnson, 183 Ill. App. 42, decided by the Appellate Court of the Second District, is quoted as applicable. It is clear that the reason or motive of the legislature in passing the act was as stated by Judge Games, who wrote the opinion. The tenant there did not remove the fixtures until after the possession had been surrendered. The court holds he could not remove them, regardless of any rule of the common law that might have protected his rights before that legislation. Appellants here contend that that case, interpreting the statute, by inference protects them. The section of the statute used in this case is interpreted and discussed in Miller v. Bennett, post,, p. 306, the present term of this court.

We are of the opinion it is not authority in support of their contention. All that the court held, or could hold as law presented by the record was, that the tenant, not having removed the alleged removable fixture until after he had surrendered possession, could not afterward do so. There was no occasion to hold more and the court did not undertake to go beyond the question presented for decision. The specific question there presented is not presented here. In this case, before the defendant abandoned or surrendered the premises, they dismantled the shelving, which they did not put in, and wiring, conduits, pipes and radiators used for heating purposes. Appellants put in the heating fixtures, but of that appellees had no notice. Their lease expired September 1. They were permitted by appellees to stay beyond the first of the month, paying therefor. During that period they committed the act complained of.

Appellees had come into possession of the property as purchasers by deed dated 1924. Appellants had attorned to them and recognized, without reservation or restriction, their rights as purchasers. Nothing is claimed by appellants to have been said by either of them as to any claim of right to the fixtures. In a conversation between Badcliff and Hanger before the purchase of the premises was consummated, Hanger told him his only interest in the premises was his tenancy to the first of September. In applying the section they invoke as their defense, it must be noted it regulates only the rights existing between landlord and tenant. It rylg-tes to the rights in removable fixtures while in that relation. Previous to its enactment, removable fixtures, as between landlord and tenant, might, of course, be removed. They may under that section still be removed. It was not the legislative purpose to establish that right. But all uncertainty as to when they may or must be removed is eliminated. That was the purpose. There was conflict of decision on that question, not only of the courts of the different states, but of our own courts. Now the rule as to the right of removal where the controversy arises between landlord and tenant, so far as legislative language can make it clear, is, such fixtures must be removed by the tenant “during the term of his lease, or of any renewal thereof, or of any successive leasing * * * while he remains in possession in his character as tenant.” It would seem to be clear that the last qualifying clause as to time of removal as between landlord and tenant means, while he remains in possession in his character as tenant under such lease or leases. As between the original lessor and lessees this construction is clear. The controversy here being between tenants in possession under a temporary arrangement with purchasers without notice, the tenants making known no claim to fixtures, it is more in accord with the settled rule with regard to the rights of the parties. The reason becomes stronger in view of the limitation as to the right of removal before the statute.

In Sanitary District v. Cook, 169 Ill. 184 (190), the court said: “In Mason v. Fenn, 13 Ill. 525, it was said: ‘As between landlord and tenant, improvements put on the demised premises by the latter for the purposes of trade or manufacture, and which can be detached without material injury to the estate, may be removed by him before he quits the possession.’ ” It was held, further, that a new lease made at the expiration of the lease under which the fixtures were installed, no reservations being in the new lease, they could not be removed. But that rule supported by many cases, English and American, there cited is changed by the section now under consideration. The purpose of the legislation therefore was to enlarge the rule of the common law as to the right of removal of fixtures as between landlord and tenant, and to restrict it as to the time of removal. Those are the changes made, and they must be imputed to the legislature as its purpose. But the statute does not affect rights of vendees of the premises without notice.

It is contended by appellants not only that the fixtures belonged to appellants, but that they retained their character as personal property even as against the appellees as subsequent purchasers. In support of the contention a lengthy quotation is made from Sword v. Low, 122 Ill. 487. A reading of the very lengthy opinion in that case discloses, a full discussion of the subject of fixtures with citation of many authorities. But so far as the question of the rights of subsequent incumbrancers was involved, and the rights of subsequent purchasers are not different, the decision was adverse to them because the boiler in controversy attached to the mill had been conveyed to the vendor of it by chattel mortgage acknowledged and recorded and that mortgage recognized by the subsequent grantee of the premises.

"What was said in First Nat. Bank of Joliet v. Adam, 138 Ill. 483 (502), disposes not only of appellants’ contention as to the authority of that case on this point, but of this case. There a trust deed had been executed conveying buildings, shed, storehouse, machines, engines and their attachments, oil tanks, iron pulleys, boiler pump and attachments, and all belting, gearing, shafting and pulleys used in a paper mill. It was acknowledged and recorded. Adam claimed all the property by virtue of a lease, quite a,s meager in its recitals of property conveyed as the lease now before us. Distinguishing the case of Dobschuetz v. Holliday, 82 Ill. 371, from Sword v. Low, the court said: “We do not understand that the doctrine of the Holliday case is opposed to the views expressed in Sword v. Low, 122 Ill. 487. In the latter case an engine and boiler, attached to the realty so as to be capable of removal without injury to either, was held to have retained its character as personalty by reason of the agreement to that effect, even as against subsequent purchasers or incumbrancers. But there the agreement of the parties was made manifest by a chattel mortgage upon the boiler and engine, which was executed, acknowledged and recorded as required by the statute, and thereby notice of the personal character of the articles attached was given to third persons. Here, however, the lease was not acknowledged and recorded in accordance with the Chattel Mortgage Act, and hence the appellant, as holder of the trust deed, was not bound to take notice of any intention manifested by the terms of the lease to treat the fixtures as personalty. * * * For the reason thus stated, we are of the opinion that the appellee, Adam, acquired no lien upon the mill, buildings, machinery and fixtures, which was superior to the lien of appellant’s trust deed.”

Appellants’ lease was not recorded, but, if it had been, there is nothing in it that indicates any intention that the fixtures in the building where they carried on the business were to belong to them. They had not built nor put in the shelving. The other fixtures were apparently part of the realty and there was nothing indicating to third persons purchasing the property that the tenants had any legitimate claim to them. But, even if they had, they did not remove them from the premises during the term of their lease nor of any renewal or successive leasing, while they were in possession in their character as tenants under those from whom they claimed the right. That lease had expired. They were in for a month only with nothing said by any one as to their having any right to the fixtures and nothing putting the purchasers, their new landlords, upon notice of their claim. By that transaction all were affected by new contractual rights and obligations from which defendants can claim no1 immunity or advantage.

Criticism is made of the first instruction given for plaintiffs. It told the jury, substantially, that if they believed from the evidence defendants removed from the building articles attached thereto and that previous to the purchase of the building by plaintiffs Bad-cliff asked Hanger whether he had or claimed any rights except those of the written lease under which he was then holding and that he replied he had none, then the verdict should be for the plaintiffs and assess the damages at such sum as they believed from the evidence was the fair cash market value of such articles removed. This instruction is characterized as “vicious in the extreme.” It is argued that “it mattered not under it whether the articles were removable under the statute, which is wholly ignored, or not.” This criticism manifests a mis apprehension by counsel of the purpose and effect of the statute referred to. As we have said before, the statute created no new right to remove fixtures. The right of removal existed before the statute. It was passed in aid of the common law and to render certain the time within which removable fixtures might be removed. That time is, “while he remains in possession in his character as tenant. ” We have held that he had no right to remove them as against the appellees, because the title to them had passed to vendees without notice of any claim of right to them. The second purpose was to change the common law which denied the right of removal if fixtures were put in under a lease, and at its expiration a new lease was made. The criticism is not valid.

The second is criticised but we think on reading it as abstracted in connection with the evidence, it is not subject to the criticism leveled against it. The third and fourth are as fair toward defendants as the law justifies under the relations between appellants and appellees. The refusal complained of, of the two instructions offered by appellants, after reading all of them carefully, does not seem to us to have been improper. The matter of them was sufficiently given in others for appellants so far as they should have been given.

A careful consideration of the evidence and of the rulings of the court does not convince us the verdict is not supported by the evidence. Neither do we think any errors in the court’s rulings were prejudicial to the rights of appellants. The evidence tended strongly to support a larger verdict than was returned.

Finding no errors justifying a reversal of the judgment it is affirmed.

Affirmed.


text:
    County of Cass, Appellee, v. E. H. Kloker, Appellant.
    Gen. No. 7,927.
    1. Counties — recovery back of payments illegally made to county commissioner for services as overseer of poor. A county not under township organization may recover back from a commissioner thereof sums paid to him by order of the board of which he was a member for services as overseer of the poor, such payment being in addition to the regular per diem received as commissioner, notwithstanding the sums paid were reasonable in view of the services rendered and the inability of the board to find another suitable person to perform them.
    2. Counties — right of commissioner to retain compensation paid for services as overseer of poor. A county commissioner acquires no right to retain sums paid to him by the board of which he was a member, in a county not under township organization, for services rendered as overseer of the poor, by virtue of the fact that the board approved his claim therefor after the services were rendered, where he would have had no right thereto had the board regularly appointed him to perform such services.
    Appeal by defendant from the Circuit Court of Cass county; the Hon. Gut E. Williams, Judge, presiding. Heard in this court at the October term, 1925.
    Affirmed.
    Opinion filed December 31, 1925.
    W. H. Dieterich, for appellant.
    Walter F. Dodd, for appellee.
   Mr. Justice Crow

delivered the opinion of the court.

Cass County at the time the services sued for hy appellant were rendered was not under township organization. He was one of the county commissioners of the county at all times during which the services were rendered. He had been paid by order of the county hoard the sum of $1,600 for services as overseer of the poor. The payments were made at the rate of $50 per month and paid in sums of $150 quarterly as salary for such services. No part of the sum paid included his salary of $5 per day as county commissioner. To recover the amount paid to him as overseer, the County brought suit and at the trial before the court, without a jury, a judgment was rendered against Mm for the amount stated. To1 reverse the judgment he has appealed to this court.

Appellant was never appointed overseer of the poor. His testimony was that he performed services as such because he was unable to obtain a suitable person to perform them. He looked after the relief of the poor in five precincts in the west end of the county comprising a territory extending tMrteen miles east and west and about the same distance north and south including a city of 9,000 inhabitants. No person other than he was engaged in that work during that period. He spent from ten to twenty days per month looking after the relief of the poor and made no charges for conveyance. The amount claimed was reasonable compensation for the work.

The statement upon which this case is decided is taken almost literally from the brief of appellant. So far as any fact was presented to the trial court or urged here, there is no controversy. The materiality of the facts presented by defendant below, and the legal effect of those facts, in resistance to the demand and the judgment rendered is present in the record.

In counties not under' township organization, the county board shall designate some justice of the peace, or some other suitable person in each precinct therein, who shall be overseer of the poor in such precinct. Chapter 107, sec. 19, Smith-Hurd’s Statutes. [Cahill’s St. ch. 107, ¶ 19.] County commissioners and members of the county boards in counties not under township organization, while, transacting county affairs, shall severally be allowed $5 per day for the time necessarily and actually employed in the discharge of their duties, and five cents a mile for all necessary travel, and no other allowance, directly or indirectly, for any purpose whatever. Chapter 53, sec. 56, Id. [Cahill’s St. ch. 53, ¶ 51.] It shall be and is hereby declared unlawful for any supervisor or county commissioner, during the term of office for which he is elected, to be appointed to, accept or hold any office, by appointment or election of the board of which he may be a member; and any and all appointments and elections by the board of supervisors or county commissioners, whereby any member or members of said board, or either of them, may be selected to fill any official position, shall be absolutely null and void. Chapter 102, sec. 1, Id. [Cahill’s St. ch. 102, ¶ 1.]

It would seem unnecessary to say more in the decision of this case. If appellant was appointed by the county board as overseer of the poor, the appointment was null and void. But in addition to that, by section 4 [¶ 4] of the Act last quoted, he may be punished by confinement in the penitentiary for a term not less than one year nor more than five years, or fined in a sum not less than $200 nor more than $1,000, or both, in the discretion of the court before which such conviction shall be had; and in addition thereto his office would become vacant, and would be so declared as part of the judgment of the court; and furthermore “he shall be disqualified from holding any office or position of trust and confidence- in the state for a period of two years from the date of such conviction.”

The public policy of the State is declared by its legislation. No stronger declaration of that policy can be found than that pronounced in the legislation quoted. The act of appellee in having the several claims allowed and paid to him while he was county commissioner was not only forbidden; it was denounced with the pains and penalties of practical outlawry — a denial of the most sacred rights of citizenship though only to a limited extent. We do not understand from the record that he was appointed by the county board. But his acts were attempted by it to be ratified by allowing compensation out of the county treasury. This was one of the evils against which the legislation was directed. If he could not be appointed he could not be paid. An illegal and void act cannot be ratified. Taking the money, therefore, under the thin disguise of authority amounted to- taking it without authority. Only recently the Supreme Court held that a member of the General Assembly voting for appropriations to an officer of the State government could not legally accept employment from such officer. It was held that, having accepted a part of such appropriation, it was illegally held by him and he must restore it to the State treasury. Saxby v. Sormemann, 318 Ill. 600. In School Directors v. Parks, 85 Ill. 338, it was held that where money was paid to a school director for services rendered and supplies furnished while he was director, it could be recovered back for it was illegally obtained. The principle supporting the judgment is announced in Moffett v. People, 134 Ill. App. 550, where recovery of money was allowed under an illegal act of a county board similar to that here.

We do not consider the excuse he offers for the necessity of his acting as overseer of the poor. It is evident the circuit judge trying the case did not consider it. It could afford m> justification for taking money the legislature forbade him to take. The law governing his conduct is not qualified but mandatory. Not more plausible is the contention that he was not appointed to the office of overseer. If not, then he was a mere volunteer. The fallacy of this contention is too palpable to require notice. It assumes that while he could not retain the money if appointed, yet if the county board of which he was a member approved his illegal claims for compensation and ordered them paid, and they were paid, he can keep them. This contention overlooks the principle running through every strand of our law that one cannot legally do indirectly what he cannot legally do directly. Indirection is abhorred and reprobated as much in law as in morals and often more certainly.

It is said by counsel there is no. proof in the record of any fraud practiced on the part of defendant. It has been said by the sages of the law that courts will not define fraud, for definition might open the door to evasion. By whatever epithet the acts of appellant may be characterized, they are denounced by the statute as “null and void.” Fraud of any description could do no more. The adage, “a public office is a public trust” is the foundation of the law supporting the action in this case. Violation of the law is violation of the trust, followed by penalties making plain the enormity of the wrong.

No other judgment than that rendered could have been legally rendered and it is affirmed.

Affirmed.


author: Mu Justice Crow

text:
    F. T. Miller, Appellee, v. Webb Bennett, Appellant.
    Gen. No. 7,931.
    1. Saving questions fob review — waiver of error in denying motion to dismiss appeal to circuit court by proceeding to trial on merits. An assignment of error based upon the overruling by the circuit court of a motion to dismiss the appeal of plaintiff from a judgment entered against him by default in justice court is waived, by proceeding to trial on the merits.
    2. Landlord and tenant — right to removable fixtures as between tenant and vendee of premises mthout notice. Where a tenant of farm property stood by during the sale of the premises at auction under the provisions of the will of the landlord, without notifying the purchaser thereat of his claim to ownership of a corn elevator attached to the property which said tenant had installed without any agreement in respect thereof with either the testator or the trustees under the will, and said tenant thereafter moved from the premises without attempting to remove the elevator, under Cahill’s St. ch. 80, If 35, he could not recover possession of the elevator in an action of replevin against the purchaser at such sale.
    3. Landlord and tenant — estoppel of vendee of premises to enforce right to unremoved fixtures claimed by former tenant under assignment of bid therefor at sale of tenant’s personalty. The vendee of farm property was not estopped to enforce his right under Cahill’s St. eh. 80, 1f 35, to a fixture installed by a former tenant but left upon the premises when the tenant moved therefrom, by reason of the fact that prior to such removal the tenant sold such fixture at auction and thereafter purchased the bid from the successful bidder.
    Appeal by defendant from the Circuit Court of De Witt county; the Hon. George A. Sentel, Judge, presiding. Heard in this court at the October term, 1925.
    Reversed.
    Opinion filed December 31, 1925.
    L. O. Williams, for appellant.
    Rayburn H. Wilson, for appellee.
   Mu Justice Crow

delivered the opinion of the court.

Action in replevin was begun by plaintiff against defendant before a justice of the peace to recover possession of an elevator used on a farm to hoist or convey com into a corncrib. It is referred to in the record as a ‘ ‘ com dump. ’ ’ At the time the case was set for trial before the justice, plaintiff’s attorney told the justice he would not appear and that he could default plaintiff and he would appeal. The justice rendered a judgment that the property “be and is hereby awarded to the defendant and judgment against plaintiff for costs.” Plaintiff perfected an appeal to the circuit court. Defendant there filed a motion to dismiss the appeal and strike the case from the docket on the ground the plaintiff had confessed judgment, and that plaintiff by reason of default had dismissed his case, from which there was no appeal. The court overruled it. Error is assigned on that ruling, authorities are cited and argument made in support of the assignment. We dispose of it without further notice except to say that by proceeding to trial on the merits it was waived.

This corn dump or elevator was firmly attached to the land and to a large double corncrib that was attached to- the land. It was securely fastened to a concrete foundation about thirty inches square and about eighteen inches in the ground on the inside of the crib. Pour bolts were embedded in this concrete to which the base of the elevator was fastened. The hopper of the elevator was bolted into the studding of the crib. There was a large timber spiked to the rafters in the top of the building, to which other timbers were nailed with spike nails, and the upper part of the elevator was fastened to these timbers by bolts. The “drop” of the elevator which causes the wagons to tilt to empty the grain into the elevator was bolted to extra timbers built into the lower part of the crib. They were nailed to the crib, and the lower part of the elevator was fastened to them by sixteen bolts. The extra pieces were built into the crib for the purpose of attaching the corn elevator in question. They were firmly nailed with spikes to the building. As a part of the elevator, a large iron shaft was fastened by bolts and bearings to the overhead sills of the building. This shaft was six or eight feet long and firmly attached to the building by bolts and nails. The machinery to run the elevator is. operated through this shaft by gears and chains. It was attached to' the land in the. same manner, on the 5th day of September, 1923, when the defendant bought the land, and there was no change made afterward in the manner of its attachment. It was still attached in the same manner at the time the suit was brought.

Plaintiff’s wife was a daughter and heir of Acquilla Bennett, the testator under the provisions, of whose will the farm was sold. The plaintiff was present at the auction sale when the. defendant bought the land, and said nothing about owning it. He stood by and permitted the defendant to purchase without serving notice of any claim to. anything attached to the land. He admitted in his testimony that he told defendant nothing about the machinery until after he had purchased the land. Defendant testifies that at the time he purchased, he had no knowledge that the plaintiff claimed it, and this testimony is not contradicted. It is also a fact, admitted by plaintiff, that he placed the machinery in controversy on the premises without consulting or having any agreement with regard to its placing or removal, either with the testator or the trustees under his will.

Plaintiff had an auction sale of his personal property at the farm in December, 1921. He testified he put this machinery up for sale and that $50 or $60 was bid on it and “I made the assertion that if it did not bring $100 I would give the man $5 for his bid. The auctioneer received bids on it. It was struck off to Oliver Roberts. I done as I made the statement. ’ ’ He further testified he paid Roberts the $5. He had been a tenant 15 years, moving away from the premises January 11,1922. He testified the elevator was worth from $150 to $175. It was not moved from the premises while he was in possession.

While, the action begun was replevin, the property sought to be taken not having been seized, plaintiff proceeded as in trover and conversion. That the property in controversy was attached to the real estate is not open to question. Is it, as contended by appellee, a “removable fixture?” If not, he can recover in no event. If it is, the rights of the parties are fixed by law. The rule as to the time for the removal of “removable fixtures” by tenants being uncertain under the decisions of the courts in this State, the legislature in 1905 enacted an amendment to the Landlord and Tenant Act to remove' the uncertainty. It is section 35 of chapter 80, Smith-Hurd’s Statutes:

“Subject to the right of the landlord to distrain for rent, a tenant shall have the right to remove from the demised premises all removable fixtures erected thereon by him during the term of his lease, or of any renewal thereof, or of any successive leasing of the premises while he remains in possession in his character as tenant.” [Cahill’s St. ch. 80, ¶ 35.]

Attention to the language of this section in the light of decisions relating to the rights of tenants to remove fixtures discloses that it created no new right. It operates as a limitation on a right existing previously. It relates only to removable fixtures. Of course removable fixtures might he removed without any enabling act. There was never any controversy as to that right. The only seism was. as to when it might be exercised. To quiet that seism, it is now declared, in unmistakable terms, such fixtures must be removed “during the term” of the lease, or of any renewal thereof, or of any successive leasing, while he remains in possession in his character as tenant. Before its enactment, a renewal lease without mentioning the right to removal of fixtures previously placed or erected would he defeated. Sanitary District v. Cook, 169 Ill. 184. But that rule is changed, and the right to removal, limited as to time, is plain. Neither explanation, repetition nor emphasis of the language quoted can make it plainer.

The corollary from this plain language is, if not removed within the time allowed it cannot be removed by the tenant, and passes to the landlord and to his successors in title and possession, as part of the land to which it is affixed. The strictness with which this statutory rule operates, is illustrated by Fellows v. Johnson, 183 Ill. App. 42, the only case coming to our attention applying this section now under consideration. The tenant there surrendered possession in compliance with the contract of leasing under which he was in possession. He had erected on the premises at his own expense a frame addition to the barn, a shed, and some other structures that were accessions to the real estate, which were within the terms of the provisions of the lease giving him the right to removq. Having attempted to remove these structures, he was prevented from so doing by the vendee, and brought suit in replevin with a count in trover. On trial without a jury, the court rendered judgment for defendant. By a clause of the- lease the landlord reserved the right to terminate, it on the first day of any March during the term if he sold the premises, giving six months’ notice. By another clause the tenant had the right to remove any improvements put on the premises for his own convenience and at his, own expense, if called on to vacate the premises before the termination of the lease. The court held that, applying the statute, not having removed the removable fixtures before the termination of the lease, he had no right to them and that he could not recover their value from the landlord’s vendee. In that case, as applicable to the facts like those in the case at bar, the court said (page 48):

“Appellant’s (plaintiff’s) right to occupy or enter upon the premises expired with the termination of his lease and Ms surrender of possession. No Illinois case is cited, and we know of none, that would permit Mm to enter thereafter to remove improvements he had placed thereon. To hold that he could do so, would be to extend by implication the term of his. lease as fixed by his contract, wMch does not seem to us consistent with the policy of our law or with the proper construction of written contracts. ’ ’

We are of the opinion that plaintiff in tMs case is in no better position than was plaintiff in that. He did not remove the corn elevator while he remained in possession as tenant nor was he prevented from so doing wMle in such possession. He claims to have bought the bid of a bidder for this elevator at his own sale of personal property, paying $5 for a $150 or $175 corn elevator. He attempts to create an estoppel by conduct of defendant to claim this property at the auction at which he claims to have purchased. It would indeed be a novel application of the principle of estoppel for a court to hold that plaintiff, with all the knowledge he possessed of the transaction by which defendant came into possession of the com elevator, should have title by estoppel. He was present at the auction at which the land was sold by the trastees under the will of Acquilla Bennett. He told no one at that time he had any claim to the elevator, although he knew, at least knowledge is imputed to him, that it would pass by the sale except under peculiar circumstances within Ms knowledge, if such existed. His wife had a one-eighth interest in the land. He stood witMn eight feet of the trustee selling the real estate, said nothing about any claim, and now contends a eotenant purchasing the land must surrender a substantial attachment to the real estate, for which Ms wife presumably received her portion of the purchase price.

Many errors are assigned on the record, many of which are fatal to the verdict. But having considered the record in its entirety we are satisfied the verdict returned and the judgment rendered under the uncontroverted facts are contrary to the law applicable to the ease. There was no right of recovery. The court should have allowed defendant’s motion to direct a verdict for him. For the error in denying that motion, the judgment of the circuit court is reversed with judgment against appellee here for costs.

Reversed.


text:
    John Schultz, Appellee, v. Elizabeth O’Connell et al., Appellants.
    Gen. No. 7,935.
    1. Taxation — presumptions created by issuance of tax deed and effect thereof. The presumptions created by Cahill's St. ch. 120, 1i 240, in respect to tax deeds, relate solely to acts dependent upon the fidelity of public officials in the discharge of their duties in making the records and reporting the acts required by them to be done previous and preliminary to the issuance of the deed. They afford no evidence of any act of the holder of it necessary to' procure its issuance, such as the requirements made by paragraphs 232 and 233 of the same chapter, touching notice of the sale and the purchase thereat, and the making and filing of an affidavit showing compliance therewith.
    2. Forcible entry and detainer — admissibility of tax deed to plaintiff. In a suit for forcible entry and detainer, a tax deed held by the plaintiff is not competent evidence for any purpose where the record does not show compliance by plaintiff with the requirements of Cahill’s St. ch. 120, ffl 232, 233, providing that as a prerequisite to the issuance of such a deed the purchaser shall serve notice of the sale and his purchase thereat, and make and file an affidavit showing that he has given such notice in conformity to the statutory requirements, and this notwithstanding the fact that the sufficiency of the affidavit was not argued by either party.
    3. Forcible entry and detainer — title under tax deed as basis for action. The holder of a tax deed to property cannot maintain forcible entry and detainer against parties in possession thereof. notwithstanding the fact that if he resorts to ejectment his tax deed will be attacked, and if the attack proved successful, he would still be out of possession and could not be restored thereto, and hence would lose the money paid for the tax deed.
    Appeal by defendants from the Circuit Court of Brown county; the Hon. Feed G. Wolfe, Judge, presiding. Heard in this court at the October term, 1925.
    Reversed.
    Opinion filed December 31, 1925.
    S. A. Hubbard and H. W. Lewis, for appellants.
    W. H. Dieterich, for appellee.
   Mr. Justice Crow

delivered the opinion of the court.

Plaintiff (appellee) brought suit against defendants (appellants) in the circuit court of Brown county for forcible detainer. The cause was heard by the court without a jury. The court found the issues upon the declaration and plea of not guilty in favor of appellee and rendered judgment for possession of the premises described and against appellants for costs. To reverse that judgment the record is brought to this court.

The judgment appealed from was based on a tax deed obtained by appellee as the result of a sale of lands for taxes under a judgment of the county court entered in June, 1921. Plaintiff offered in evidence all the records pertaining to the sale of lands for delinquent taxes, including the deed to the premises in question. Objections were interposed to them, but overruled by the court. The contention of appellants here, as in the circuit court, is that the action of forcible entry and detainer will not lie and that the proper remedy is ejectment.

Appellee’s counsel in his brief says the action is brought under the sixth clause of section 2 of the Act in relation to Forcible Entry and Detainer [Cahill’s St. ch. 57, If 2, cl. 6], which is: “When the lands or tenements have been * * * sold under the judgment or decree of any court in this State, * * * and the party to such judgment or decree * * * refuses or neglects to surrender possession thereof, after demand in writing by the person entitled thereto, or his agent,” the person entitled to the possession may be restored thereto by this action. He further says: “The contention of appellee is that the holder of a tax deed has his remedy in forcible entry and detainer, and that section 224 of the Revenue Act [Ca-hill’s St. eh. 120, J[ 240] providing what effect a tax deed has as evidence precludes the appellant from making any inquiry as to the validity of the deed.” The argument by which counsel attempts to support the latter thesis is: If the action for forcible entry does not lie, and if appellee is compelled to bring ejectment and submit to inquiry as to the validity of the tax deed, and if it should develop that it is void, he not having been in possession of the land, and. appellants never having been out of possession, a judgment could not be entered “restoring the owner to possession.”

Appellee concedes that the action is purely statutory and possessory, that the title cannot be tried in the action, and that a person claiming possession only as an incident of title must resort to the action of ejectment. The statement of the third proposition is not in the words of counsel, but it is the necessary consequence of his admission. That the action is merely possessory, and title not involved and not triable, has been decided so often and under such variety of circumstances that authorities need not be, but the following are, cited: McCartney v. McMullen, 38 Ill. 237; Thomas v. Olenick, 237 Ill. 167, and cases cited; Shulman v. Moser, 284 Ill. 134; Doty v. Burdick, 83 Ill. 473.

In the case last cited, the appellee undertook to defend a forcible entry and detainer action by introduction of a deed of the premises to' him, in which he was sustained below. If a mere deed is not a sword of defense, it cannot be a weapon of attack in a suit of this so.rt, where possession in this action is sought under it. Mr. Justice Walker, writing the opinion reversing the judgment, thus elaborates the sound doctrine against it: “This court has ever uniformly held that in an action of forcible entry and detainer, or in a forcible detainer only, the title to- the premises is not involved, nor can it be inquired into- on the trial; that possession, and the right to possession, independent of title, are the only questions involved. Hence, appellee had no right to introduce evidence of title on the trial, and even if he had, he could not, as we presume the entire profession are aware, prove it by an unconnected deed. The offer to introduce the deed from A. Doty to appellee would not even tend to prove title, unless connected with paramount source of title, or with a bar of the statute; but a person in the actual, peaceable possession of real estate is presumed to be the owner of the fee until the presumption is rebutted. A person in the full possession, when sued in ejectment, has the right to insist that the plaintiff shall show that he has paramount title before he is required to show in what manner or by what title he holds. He may show a better outstanding title than the plaintiff and thus defeat a recovery, although he may have no title whatever beyond his mere naked possession, which may have its inception in wrong, or even force, if it is not against the plaintiff. It is one of the most elementary rules of practice that a plaintiff in ejectment must show a valid title, traced to the paramount source,, or to a source with that of defendant’s title, before he can recover. He, if at all, recovers on the strength and perfection of Ms own title, and not on the weakness of his adversary’s title. The mere production of a deed from one person to another does not tend to prove title. It must appear that the grantor had title, before there is proof. Hence, in a case requiring proof of title, appellee would have failed.”

If the argument of counsel stated above needs refutation the excerpt from the opinion of the Supreme Court is enough. That contention is not aided by the reference to section 224 of the Bevenue Act [Cahill’s Ill. St. ch. 120, ¶ 240]. The part of that section relied on only provides that the deed: shall be prima facie evidence of certain facts there stated, viz.: That the real estate conveyed was subject to taxation and properly listed and assessed; that the taxes had not been paid; that the premises had not been, redeemed; that the real estate was properly advertised; that it was sold for taxes; that the grantee was the purchaser or assignee of the purchaser; that the sale was conducted in the manner required by law. But with those facts established, before they can operate to affect the title of the owner at the time the sale was made, and invest the purchaser with the benefit of the prima facie title then made, it is necessary that the purchaser or assignee of the purchaser shall do something. Affirmative action is required by such person to entitle him to the possession of such effective deed. All the presumptions above quoted relate to acts dependent upon the fidelity of public officials in the discharge of their duties in mating the records and reporting the acts required by them to be done previous and preliminary to the issuance of the deed. The deed establishes prima facie those facts only. Kepley v. Fouke, 187 Ill. 162. It affords no evidence of any act of the holder of it necessary to procure its issuance.

The acts required by the purchaser of his assignee, as a sine qua non to the issuance of the deed are provided in sections 216 and 217 of the Revenue Act. Cahill’s St. ch. 120, ¶¶ 232, 233. By the first, the purchaser or his assignee must serve notice, with the particularity there described, of the sale, the purchase, with a minute detail of facts to be stated, the manner of service and the contents of the notice. By the next section referred to, an affidavit is required to be filed showing a compliance with the preceding section. The first referred to expressly provides that hereafter no purchaser or assignee of any purchaser of any land at any sale of lands shall be entitled to a deed therefor until he shall have served the notice there required. The second expressly provides that before the purchaser or assignee shall be entitled to the deed, he shall make an affidavit of his compliance with the conditions of the preceding section. In the affidavit he must state facts and not conclusions. It is therefore clear that a strict compliance with both of those sections is a condition precedent to- the right to the deed. Section 224 cited by counsel does not make the deed prima facie evidence of the compliance with anything required by either of those sections. It must follow from the foregoing provisions in pari materia with section 224, that the deed, if competent for any purpose, was not competent under the showing made in this record, though the sufficiency of the affidavit is argued by neither party. We exprfessly hold that the deed was not competent for any purpose on the trial of this case and that the court should have sustained defendant’s objection to it. It was not held by the Supreme Court in Riverside Co. v. Townshend, 120 Ill. 9, that forcible entry and detainer will lie to restore possession to one holding a tax deed, as counsel contends.

It follows that it was not necessary for defendants to contest the validity of the deed. If competent and relevant the plaintiff must show its validity. If it were relevant and competent, we cannot understand why he might not deny its validity. Certainly the portion of section 224 referred to is no warrant or authority against such contest. The argument of counsel quoted above is not less fallacious. The defendants were in possession. As Justice Walker said in the case, supra, that possession was prima facie evidence of title to the land possessed by her. How could her prima facie title be overcome by another only of the same strength? But under the rule of strict application of the statutory requirements for a valid tax deed, the most that can he said is, appellee is unfortunate in having made an investment that will not withstand judicial scrutiny. Shall the tenants and presumptively the owners of the land in this proceeding be thrown out of their possession? Appellee contends they should, because, if he resorts to ejectment, the validity of his tax deed will be attacked, and if the attack is successful, he will still be out of possession and cannot be restored thereto and will lose the money he paid for the title. The same argument might foreclose any defense. To state the contention is to refute it. Defendant’s possession is sacred to them and if plaintiff were put in possession they would be compelled to resort to ejectment. There is nothing sacrosanct about a tax deed.

The judgment of the circuit court is reversed with judgment in this court against appellee for costs, and fi. fa. therefor is awarded.

Reversed.


author: Mr. Justice Shurtleff

text:
    The People of the State of Illinois, Defendant in Error, v. Conrad Blenz and Cal Anderson, Plaintiffs in Error.
    Gen. No. 7,896.
    1. Criminal procedure — propriety of taking to jury room liquor in evidence in prosecution under Prohibition Act. It was error, in a prosecution under the Prohibition Act, to- take to the jury rooms with the jury liquors taken by officers on search warrants and introduced in evidence.
    2. Searches and seizures — issuance by justices of the peace tinder Prohibition Act. It is within the power of a justice of the peace to issue a search warrant under the Prohibition Act, Cahill’s St. ■ch. 43,1[ 30.
    3. Searches and seizures — failure of complainant to designate officer for service as invalidating warrant. Search warrants issued pursuant to the Prohibition Act, Cahill’s St. ch. 43, jf 30, are not so defective as to require suppression of the evidence procured thereunder, although the record does not show that the complaining witness designated any particular officer to serve the writs, where the same were in fact directed to recognized peace officers.
    4. Criminal procedure — sufficiency of verdict finding one of defendants jointly indicted guilty on all counts and other guilty on some counts. Where defendants jointly indicted for violations of the Prohibition Act were tried upon fifteen counts, a conviction of one defendant upon the first six counts and of the other upon the fifth and sixth counts will not stand, different defendants upon different charges having been tried in the same cause and upon the same indictment.
    5. Criminal procedure — necessity of reversal of conviction of defendants jointly indicted hut severally found guilty on different counts. Where defendants jointly indicted for violations of the Prohibition Act were tried upon fifteen counts, and one was convicted upon the first six counts and the other upon the fifth and sixth counts, the judgment must be reversed although the separate sentences as to each defendant upon such fifth and sixth counts were in proper form.
    Error by defendants to the Circuit Court of Macon county; the Hon. James S. Baldwin, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed and remanded.
    Opinion filed December 31, 1925.
    Redmon & Redmon and Whitley & Fitzgerald for plaintiffs in error.
    Oscar E. Carlstrom, Attorney General, C. F. Mansfield and Merrill F. Wehmhoff, Assistant Attorneys General, Charles F. Evans, State’s Attorney and A. R. Ivens, Assistant State’s Attorney, for defendant in error.
   Mr. Justice Shurtleff

delivered the opinion of the court.

Plaintiffs in error were jointly indicted for violation of the Prohibition Law. There were nineteen counts in the indictment. The. court sustained a motion to quash the last four,counts and plaintiffs in error were tried upon the first fifteen counts and there was a verdict of guilty as to plaintiff in error Blenz upon the first six counts of the indictment and a verdict of guilty as to plaintiff in error Anderson upon the fifth and sixth counts of the indictment. A motion for a new trial was overruled and plaintiffs in error were severally convicted and sentenced by the court, in accordance with the verdict, upon the several counts in the indictment. The record is brought to this court by a writ of error for review.

Various liquors taken by the officers upon search warrants were introduced in evidence and taken by the jury to the jury room. This was error. People v. Elias, 316 Ill. 389. The search warrants in this case were issued by a justice of the peace upon sufficient affidavits submitted, and it is contended by plaintiffs in error, in pursuance of a motion submitted before the trial to suppress certain evidence, that a justice of the peace has no jurisdiction to issue search warrants under the Prohibition Act, inasmuch as the statute provides: “Whenever complaint is made in writing, verified by affidavit, to any judge having cognizance of criminal offenses,” etc. [Cahill’s St. ch. 43, |[ 30], and from this it is argued that justices of the peace, having no. power to order the liquor destroyed or to try cases and impose jail sentences, are therefore without power to issue these, writs under the statute. Justices of the peace have jurisdiction to issue warrants, upon proper complaints made, in all oases, misdemeanors and felonies, and to sit as examining magistrates, and, upon probable cause appearing, to bind over persons charged with crime to the grand jury. The word “cognizance” in law means “the exercise of jurisdiction, the taking of authoritative notice as of a cause,” and inasmuch as the. Prohibition Act defines the term “judge” to. include justices of the peace and police magistrates, we think there can be no question but that it is within the jurisdiction of justices of the peace, both by intendment and the letter of the Act, to issue such writs.

It is further contended by plaintiffs in error that the warrants were insufficient in the case at bar for the reason that the statute directs that the warrant be directed to any peace officer, “whom the complainant may designate,” and in this case there is no record that the complaining witness designated any particular officer to serve the writs. There were two writs issued, one directed to W. A. Underwood, sheriff of Macon county, and the other directed to W. A. Underwood, who was the sheriff of Macon county. The court did not err in denying plaintiffs in error’s motion to suppress the evidence. However, the verdict and judgment of conviction in this case cannot be permitted to stand either as to form or substance: Plaintiffs in error were indicted jointly as to certain offenses. The jury found both defendants guilty on the fifth and sixth counts and plaintiff in error Blenz guilty on the first four counts, and plaintiff in error Anderson not guilty on the first four counts. In other words, Blenz has been tried and convicted separately upon counts with which the jury and the court have said Anderson had nothing to do. Different defendants upon different charges have been tried and convicted in the same cause and upon the same indictment. This, the law does not permit. (Baker v. People, 105 Ill. 452; People v. Hallam, 149 Ill. App. 386.)

The cases cited by defendant in error as to concert and agreement by defendants in the commission of offenses are not in point. The jury have found that there was no concert or agreement between the defendants in the case at bar in the commission of the offenses charged in the first four counts of the indictment. The separate sentences as to' each defendant upon the fifth and sixth counts are in proper form (Miller v. People, 47 Ill. App. 472), but this court is not permitted to affirm the judgment as to certain counts and reverse as to other counts. The judgment is a unit. (People v. Gaul, 233 Ill. 630; People v. Powers, 200 Ill. App. 545; and People v. Goldberg, 210 Ill. App. 430.) Upon a remand of the case the State’s Attorney may nolle pros, such counts of the indictment as the testimony tends to show the defendants engaged in separately.

For the errors pointed out, the judgment of the circuit court of Macon county is reversed and the cause remanded.

Reversed and remanded.