text:
    The People of the State of Illinois, Defendant in Error, v. Lafayette Rice, Plaintiff in Error.
    Gen. No. 7,835.
    1. Criminal procedure — failure to file transcript may he waived. Compliance with. Appellate Court rule No. 9, requiring filing of ■ transcript of record, may he waived by such court if error otherwise appears.
    2. Criminal procedure — hill of exceptions goes to jurisdiction. The bill of exceptions goes to the jurisdiction of the subject matter of the appeal or writ of error if it relates to errors arising out of matters necessary to be preserved in that manner.
    3. Criminal procedure — matters that must he made part of hill of exceptions. All motions, nature and character of evidence and objections to reception or rejection of evidence during trial, and instructions given and refused, must, if review be sought, be made a part of the record by bill of exceptions.
    4. Criminal procedure — necessity of motion for new trial. Questions as to motions, exception or rejection of evidence, and instructions given and refused, can be kept in the record only by a motion for new trial, except as to the soundness of the instructions.
    5. Criminal procedure — motion for new trial must he in hill of exceptions. Motion for new trial must itself be in the bill of exceptions to authorize review of errors saved only by such bill.
    6. Criminal procedure — transcript must include hill of exceptions. Not only must there be a bill of exceptions, but the transcript authenticated by the clerk and seal of the court must include it and must show that it was signed by the judge presiding at the trial and that it was filed.
    7. Criminal procedure — separate hill of exceptions for each term of court necessary. If more than one judge, or if the same judge at different terms of court, passed upon questions involved, action of each as to such matters must be preserved for the respective terms by separate bills of exceptions and on appeal or error incorporated in the transcript under the caption “Bill of Exceptions” and properly authenticated.
    8. Criminal procedure — original hill of exceptions not incorporated in transcript hy agreement of parties. An original bill of exceptions cannot be incorporated in the transcript except in civil cases by agreement of parties under the statute.
    9. Criminal procedure — procedure according to course of common law. In criminal cases all procedure is according to the course of the common law except where the criminal code (Cahill’s St. ch. 38) has changed that course.
    10. Criminal procedure — certification that transcript full, true and complete. It is necessary that the clerk under his hand and the seal of the court shall certify that the transcript of the record is a full, true and complete transcript in the cause lately pending in the court of which he is the clerk, in view of Appellate Court rule No. 9.
    11. Criminal procedure — hill of exceptions must recite disposition of motions. Those matters which become part of record only by bill of exceptions, and the rulings of the court thereon, can be shown only by the recital therein of the trial judge as to his disposition of the motions, or other matters submitted for his determination.
    12. Criminal procedure — matter belonging to common-law record. Those matters belonging to the common-law record, and the court’s action thereon, can be shown only by the judgment records or rolls made up by the clerk.
    13. Criminal procedure — judge's signature to hill of exceptions.
      Where certificate of judge is not appended to the bill of exceptions but follows the certificate of the clerk on a separate sheet of paper fastened by eyelets to the back cover of the transcript, it authenticates nothing, and the bill of exceptions is competent for no purpose.
    14. Criminal procedure — record should evidence filing of hill of exceptions. Evidence of filing of bill of exceptions must appear in the record.
    15. Criminal procedure — matters that should appear in hill of exceptions. Under the caption “Bill of Exceptions” should appear not only the evidence, objections during the progress of the trial and rulings of the court in receiving it, and exceptions to the rulings severally, but also a motion to quash a search warrant and a recital by the judge as to his disposition of the motion and the exception of the defendant to the ruling.
    16. Criminal procedure — hill of exceptions construed most strongly against the party presenting it. The bill of exceptions is a pleading of the party alleging exceptions, and if assailable on the charge of ambiguity, uncertainty or omission, it must, like any other pleading, be construed most strongly against the party presenting it.
    Error by defendant to the County Court of Morgan County; the Hon. Paul A. Samuell, Judge, presiding. Heard in this court at the April term, 1925.
    Affirmed.
    Opinion filed June 27, 1925.
    F. O. R. Baker, for plaintiff in error.
    Hugh Green, for defendant in error.
   Mr. Justice Crow

delivered the opinion of the court.

Plaintiff in error was convicted in the county court of Morgan county upon an information charging him with unlawful possession of intoxicating liquor. Apparently a motion was interposed by defendant to quash the complaint for a search warrant and the search warrant that was issued upon it.

The case was tried by a, jury. Eleven errors are assigned upon the record. No fault is found with the information upon which defendant was convicted. The sufficiency of the evidence to warrant a conviction is attacked. The rulings of the court upon admission and rejection of evidence are challenged; the denial of motion for new trial and in arrest of judgment is said to be erroneous. But the validity of the information being conceded, strangely enough there is nothing in the record for this court to review for want of a bill of exceptions. Neither is the transcript of the record filed, a compliance with Buie 9 of the Buies of Practice of this court. The latter defect we might waive, or lightly pass, if error otherwise appears; but the former, courts of review cannot waive and will notice in the decision of causes on error or appeal whether raised by counsel or not, because the bill of exceptions goes to the jurisdiction of the subject matter of the appeal or writ of error, if it relates to errors arising out of matters necessary to be preserved in that manner.

All motions, the nature and character of the evidence, and objections to the reception or rejection of evidence, during the progress of the trial, and instructions given and refused, must, if review be sought, be made part of the record by bill of exceptions. Questions as to all such matters can be kept in the record only by a motion for a new trial, except as to the soundness of the instructions. Illinois Cent. R. Co. v. O’Keefe, 154 Ill. 508; People v. Perlmutter, 306 Ill. 495; Hayes v. U. S. Materials Co., 228 Ill. App. 286. But the motion for new trial must itself be in the bill of exceptions to authorize review of errors saved only by such bill. Nason v. Lets, 73 Ill;. 371; Seibel v. Vaughan, 69 Ill. 257; Chicago, B. & Q. R. Co. v. Haselwood, 194 Ill. 69, affirming the judgment of this court, reported in 91 Ill. App. 103. Not only must there be a bill of exceptions, but the transcript authenticated by the clerk and seal of the court must include it and must show that it was signed by the judge presiding at the trial and that it was filed. If more than one judge, or if the same judge at different terms of court, passed upon matters, the action of each as to such matters must be preserved for the respective terms by separate bills, and on appeal or error, incorporated in the transcript under the caption, ‘ ‘ Bill of Exceptions, ’ ’ and properly authenticated. Staunton Coal Co. v. Menk, 99 Ill. App. 254, affirmed 197 Ill. 369; David v. Bradley, 79 Ill. 316; People v. May, 276 Ill. 332. An original bill of exceptions cannot be incorporated in the transcript except in civil cases by agreement of parties under the statute. In criminal cases all procedure is according to the course of the common law except where the criminal code has changed that course. Crim. Code, 761, ch. 38, Cahill’s St.

Testing the record in this case by these elementary principles the abstract shows, in order: Placita, information, capias and return; arraignment and plea, verdict, motion for new trial, judgment. on verdict, motion for time to make application for supersedeas and allowance of the motion. Following these suggestive notations is the following: 27 (page of record) “Caption to Bill of Exceptions.” Following that recital, on page 8 of the abstract to page 26 the evidence is included. On pages 27 to 34 are the instructions, given and refused; on page 35 the verdict; on pages 35 to 38 are the affidavit for search warrant, the warrant, and the return thereto."

On page 38 of the abstract, with record page 89 on the margin, is the following: “Certificate of George L. Biggs, Clerk of the County Court of Morgan County, Illinois, under his hand and seal at his office in Jacksonville, Illinois, on the 5th day of February, 1925.” Following this on the same page of the abstract, with record page 90 on the margin, is the following: “Certificate of Paul Samuell, Judge of the County Court of Morgan County, to Bill of Acceptance.”

Buie 9 of this court, which is part of the law of appellate procedure, prescribes the method of preparing records for review: “Hereafter, the Clerks of inferior courts * * * in sending up a transcript of the record to this court as a return to a writ of error, shall certify to this court: First — A copy of the process; Second — The pleadings of the parties, respectively; Third — The verdict in jury trials; Fourth — The judgment of the Court below, whether tried by the Court or a jury; Fifth — All orders in the same cause made by the Court; Sixth — The bill of exceptions.”

The transcript is essential to confer jurisdiction on an Appellate Court on appeal or error. To that end it is necessary that the clerk of the court under his hand and the seal of the court shall certify that the transcript of the record is a full, true and complete transcript of the record in the cause lately pending in the court of which he is the clerk. It is common knowledge among lawyers that the record consists of two elements: one, the record proper, called the common-law record; the other the statutory record, consisting of the bill or bills of exceptions. These matters which become part of the record only by bill of exceptions, and the rulings of the court thereon, can be shown only by the recital therein of the trial judge as to his disposition of the motions, or other matters submitted for his determination. Van Cott v. Sprague, 5 Ill. App. 99; Chicago, R. I. & P. R. Co. v. Town of Calumet, 151 Ill. 512; Martin v. Clark, 116 Ill. 654; Harms v. Aufield, 79 Ill. 257; Earll v. People, 73 Ill. 329; Garrick v. Chamberlain, 97 Ill. 620; St. Louis & O. Ry. Co. v. Union Trust & Savings Bank, 209 Ill. 457; People v. Chicago & N. W. Ry. Co., 200 Ill. 289. Those belonging to the common-law record, and the court’s action thereon, can be shown only by the judgment records or rolls made up by the clerk. People v. Kuhn, 291 Ill. 154.

We have examined the transcript of the record in this case to verify the accuracy of the abstract. The certificate of the judge is not appended to the bill of exceptions but follows the certificate of the clerk. It is on a separate sheet of paper the size of that upon which the assignment of errors is written, and both are fastened by eyelets to the back cover of the transcript and not bound into the transcript. The transcript is fastened together in the cover by the common office staples or fasteners.

The judge’s signature to the bill is necessary to make it a bill of exceptions. Being so signed and filed, it thereby becomes a part of the record and should be included in and as part of a “full, true and complete transcript.” But being inserted after the record, and being a certificate to the whole, it is a nullity. It authenticates nothing. It serves no purpose on review. The portion of the transcript under the caption “Bill of Exceptions,” is apparently the original and competent for no purpose. It does not purport to .have been filed in the office of the clerk, at least we have been unable upon diligent search to find evidence of filing. This evidence should appear.

Under the caption “Bill of Exceptions,” should appear not only the evidence, objections during the progress of the trial and rulings of the court in receiving it, and exceptions to the rulings severally, but also the motion to quash the search warrant and a recital by the judge as to his disposition of the motion and the exception of the defendant to the ruling. They do not so appear. The motion for a new trial should also appear with a recital by the judge as to the disposition of the motion and an exception to the ruling. They do not appear. Without them there is no evidence under our course of procedure supporting any of those alleged errors of which complaint is made and nothing, therefore, is presented to us for review.

The record as written by the clerk shows rulings on the motions and exceptions thereto. But, he is not the proper official to say what the judge’s rulings were and whether there were exceptions to them. Without incumbering this opinion with quotations from decided cases or textbooks in support of the elementary principles announced, as to the nature of and necessity for bills of exceptions, in addition to cases cited, supra, we refer to Dreyer v. People, 188 Ill. 40, the concurring opinion of Mr. Justice Cartwright, beginning at page 60, with the cases cited, which covers the principle fully, if further authority were needed. The opinion of Mr. Justice Mulkey in Flaherty v. McCormick, 123 Ill. 525, while written in a chancery case, is instructive because it compares the function of the certificate of evidence with that of the bill of exceptions, citing the earliest and most illuminating eases. Both opinions were written by masters of the common law. Rogers v. Hall, 4 Ill. (3 Scam.) 5, is authority for the proposition that the bill of exceptions is a pleading of the party alleging exceptions, and if assailable on the charge of ambiguity, uncertainty or omission, it must, like any other pleading, be construed most strongly against the party presenting it.

On any view of the record now before us, whether as abstracted or on consideration of the transcript which has been carefully examined, there is nothing presented for review showing error, and the judgment of the county court of Morgan county is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Crow

license: Public Domain

text:
    Edward Mathis, Appellant, v. Liberty Straw Spreader Company and Arnold Nohl, Appellees.
    Gen. No. 7,845.
    1. Negotiable instruments — president signing for corporation not personally liable. Where note was signed with name of corporation followed by president’s name with affix “Pres.,” the president was not personally liable on the note, in view of Negotiable Instruments Law, Cahill’s St. ch. 98, If 40.
    2. Negotiable instruments — no judgment against one of several sued jointly. Under Cahill’s St. eh. 98, Iflf 6, 7, it is only where a severance has been effected in the manner there provided that the procedure is changed and a judgment allowed against all not defaulted or any number of them.
    Appeal by plaintiff from the Circuit Court of Tazewell county; the Hon. John M. Niehaus, Judge, presiding. Heard in this court at the April term, 1925.
    Affirmed.
    Opinion filed June 27, 1925.
    Velde & Prettyman, for appellant.
    Wilkins & Brecher, for appellees.
   Mr. Justice Crow

delivered the opinion of the court.

Action was brought on a promissory note for $1,916.96, signed “Liberty Straw Spreader Co., Arnold Nohl, Pres.” Affidavit of merits of plaintiff’s claim was filed with the declaration. The general issue was pleaded by both defendants. In addition to the general issue Nohl filed an affidavit denying that the note was signed by him as principal or as surety with the corporation but that it was signed in his capacity as president of the corporation and that the note is the sole obligation of the said corporation and not the joint obligation or joint and several obligations of the said corporation and of him, Nohl. A jury having been waived, the cause was tried by the court, the issues were found for the defendants and judgment rendered accordingly with cost to plaintiff, and he appealed to this court.

The form of the note is:

“$1916.96 Aug. 1, 1921.
One day we pay of Edward Mathis Nineteen Hundred Sixteen and 96/100 Dollars at Morton, Hlinois. Value received, with interest at 6 per cent per annum.
Liberty Straw Spreader Co.,
Arnold Nohl, Pres.”

Appellant contends that the signature of Nohl was attached to the note as joint maker. Appellees contend it was a note of the corporation, and that the signature of Nohl was merely that of an officer executing the note. In substance appellant’s contention is based upon the fact that the evidence shows Mathis told Nohl he wanted a “security note” and that he said he would give him security for it. Plaintiff wrote the note and sent it to Nohl. Nohl’s wife was bookkeeper for the corporation and wrote the corporation name and under it the word “Pres.,” and Nohl signed it before the word and sent it by mail to plaintiff and he retained it. Counsel for appellant ask, why should his wife have written “Liberty Straw Spreader Co.,” if it had not been Arnold Nohl’s intention to sign the note as surety? We think the answer is obvious. The president had, and the bookkeeper did not have, authority to execute it. She was not an officer of the corporation and he was. The corporate name might have been placed on it with a rubber stamp followed by the name “Arnold Nohl, President,” and the execution would have been prima facie sufficient as a corporation note. When Mathis received the note executed as it was, the manner of its execution was sufficient to put him on notice he did not have a secured note. o

Section 20 of article 1 of the Negotiable Instruments Law, Cahill’s St. ch. 98, 40 reads: “Where the instrument contains, or a person adds to his signature, words indicating that he signs for or on behalf of the principal, or in a representative capacity, he is not hable on the instrument if he was duly authorized ; but the mere addition of words describing him as agent or as filling a representative character without disclosing his principal, does not exempt him from personal liability.” There is no pretense he was not duly authorized. He was executing on behalf of the corporation an evidence of indebtedness as shown by the name of the corporation preceding his name. For that the legislature has declared he is not personally liable. This interpretation of the statute is corroborated by the further provision that if he signed his name, followed by “president” or other descriptive words, but not disclosing his principal, he is not exempt from personal liability. It is to signatures under such circumstances that liability of described persons applies. Trustees of Schools v. Rautenberg, 88 Ill. 219; McNeil v. Shober & Carqueville Lith. Co., 144 Ill. 238; Hately v. Pike, 162 Ill. 241. In the last case it was held evidence was incompetent to show the capacity in which the note was executed. Joint liability was not therefore established.

The court having found the issues against the plaintiff and in favor of both defendants, appellant now contends the judgment must be reversed as to the corporation, even if not reversed as to Nohl. The reasoning by which this conclusion is reached is, that all promissory notes are by statute declared to be joint and several and that there may be a judgment against those liable and in favor of those not liable, or new trials granted as to some and denied as to others. We think this is a misapprehension of the meaning and effect of section 2 of the Act of 1895 relied on (Cahill’s St. ch. 98, 6). By that section persons severally liable upon promissory notes may all or any of them severally be included in the same suit at the option of plaintiff and judgment rendered in said suit shall be without prejudice to the rights of the several defendants, as between themselves. Section 3 regulates the procedure in suits of that character. In effect, section 2 amplifies the rights of holders of such paper and protects the rights of obligors inter se. Applied to the rights of plaintiffs so created, section 3 provides that where suits are brought jointly, against defendants jointly and severally liable, instead of proceeding to final judgment only when the liability of all has been established as at common law,, such plaintiff may, as to any such defendant or defendants less than all jointly sued, have judgment by default. “The suit shall be thereby (that is, by default) severed, and shall proceed to trial against the other party or parties only, and if the plaintiff recover, judgment shall be entered against such one or more of the defendants as are found liable to him, but in no event shall the plaintiff be entitled to more than one satisfaction.”

It is manfest from a careful consideration of the two sections construed together, as they must be, that it is only where a severance has been effected in the manner there provided, the procedure is changed and a judgment allowed against all not defaulted, or any number of them. It is the process of severance or the legally constituted severance occasioned by default that makes the difference in procedure consistently created to promote the rights of the parties against whom proceedings are thereafter carried on. Smith v. Grabbe, 196 Ill. App. 325; Kaufman v. Helmick, 212 Ill. App. 10; Kimmel v. Weil, 95 Ill. App. 15. Under those circumstances, a new trial might be allowed as to one or more contesting liability, or denied as to all, or some only. But no such situation as that exists here. The parties were jointly sued. Both pleaded to the merits. One denied joint or other liability. Not being in a situation of default to which the statute applies, a recovery must be had against both or neither as at common law. The rights of the parties are not changed on appeal or error.

Being of opinion the court committed no error in the trial of the said cause, the judgment of the circuit court of Tazewell county is affirmed.

Affirmed.

Mr. Presiding Justice Niehaus, having heard this case in the circuit court, was not present and took no part in the consideration or decision in this court.


text:
    Wesley Palmer, Fred Lucas and Ben Gaines, Trustees of Dell Lodge No. 422, Knights of Pythias, Appellees, v. Herbert L. Baum, Appellant.
    Gen. No. 7,872.
    1. Evidence — parol evidence inadmissible to show taxes not incumbrance. Where statutory warranty deed was executed in March, 1923, parol evidence was not admissible to show that taxes for 1922 were not to be treated as an incumbrance warranted against, in view of Cahill’s St. ch. 30, If 9; ch. 120, 268.
    2. Covenants — agreement for net price as requiring grantee to pay taxes. Agreement prior to deed for a net price was not evidence that creditor was not to pay taxes for previous year.
    3. Covenants — measure of damages for breach of warranty. Where statutory warranty deed was executed and grantee was compelled to pay taxes for previous year, grantee was entitled to recover full damages consisting of taxes and penalties paid.
    4. Pabties — trustees of lodge could sue .for breach of warranty. Trustees of a lodge could “as trustees” sue grantor in deed for breach of warranty against incumbrance, though the lodge and not the trustees was named as grantee in the deed.
    5. Justices of the peace — any assumed facts supported by evidence authorizes recovery. Any assumed state of facts supported by the evidence will authorize a recovery before a justice of the peace, no written pleadings being required.
    Appeal by defendant from the Circuit Court of Vermilion county; the Hon. John H. Mabshall, Judge, presiding. Heard in this court at the April term, 1925.
    Affirmed.
    Opinion filed June 27, 1925.
    Gunn, Penwell & Lindley, for appellant.
    Hugh E. Bouton, for appellees.
   Mr. Justice Crow

delivered the opinion of the court.

This case comes on appeal from a judgment rendered by the circuit court, tried upon an appeal from the judgment of a justice of the peace. In both courts judgment was rendered for appellees against the appellant for the sum of $80.07 and for costs. The case was tried without a jury upon stipulation of facts, two propositions of law being presented and both refused.

The facts as stipulated are: Baum conveyed by statutory warranty deed under seal, to “Dell Lodge No. 422, Knights of Pythias, of Sidell, Illinois,” a piece of ground decribed by metes and bounds for a consideration of $3,500; the deed contained no reservation or exception as to taxes. It was dated March 13, 1923. The taxes for the year 1922 at the delivery of the deed were unpaid and with interest and penalties amounted to $80.07. That sum was paid by the master of the exchequer of the lodge upon an order of the three plaintiffs (appellees) as trustees of the lodge. The suit was brought by Wesley Palmer, Ben Gaines and Albert Parnham as trustees of Dell Lodge No. 422, Knights of Pythias. The order of Knights of Pythias is organized in the manner following: The Supreme Lodge is a corporation organized under the laws of the District of Columbia and the grantee in the deed operates under a charter or license issued to it from the Supreme Lodge, Knights of Pythias, of Washington, D. C.

Previous to the making and delivery of the deed and payment of the consideration therefor, defendant first negotiated for the sale of the property with one George Stoughton and made a proposition to him to sell the lot for the sum of $3,500 net, and upon said offer not being accepted, he made an offer to Wesley Palmer, one of the trustees and plaintiff in the suit, in which he offered to sell said property for the sum of $3,500 net, and later, upon payment of that sum to him, he executed a statutory warranty deed.

Defendant asked the court to hold, as law, that the plaintiffs if entitled to recover would in no event be entitled to more than nominal damages for the alleged breach of the covenant under the stipulation; and that plaintiff cannot recover at the suit of Palmer, Gaines and Parnham, trustees of the lodge, as plaintiffs against the defendant for breach of covenant against incumbrance upon a deed in which the grantee is named as “Dell Lodge No. 422, Knights of Pythias, of Sidell, Illinois. ’ ’

Appellant assigns six errors on the record: (1) Refusal to hold the propositions of law; (2) finding the issues for the plaintiffs; (3) rendering judgment for the plaintiffs; (4) the judgment is contrary to the law; (5) the judgment is contrary to the facts; (6) the judgment is contrary to the law and the facts.

It is first contended by appellant that the consideration expressed in the deed is a mere formal recital to avoid a resulting trust and it may, therefore, be explained, varied or contradicted by parol evidence as to the actual consideration. It is urged that as a result of this principle or rule of law, the consideration expressed in the deed being $3,500 net, it was contemplated by the parties that the grantor was exempted from the consequences of his covenant to the grantee against all incumbrances imputed to him by clause 2 of section 9 of the Act concerning Conveyances [Cahill’s St. ch. 30, j[ 9], and the grantee was bound to pay the taxes.

The purpose of the act was to simplify all conveyances, and probably to save expenses of recording the former lengthy and prolix instruments conveying real estate. Under the old form the express covenant would have been in the deed, unless by mutual consent it had been omitted. The conveyance here employed “was the ordinary statutory form of warranty deed under seal and contained no reservation as to taxes.” The legal consequences of such a deed is by the legislature declared to be: “Every deed in substance in the above form, when otherwise duly executed, shall be deemed and held a conveyance in fee simple to the grantee, his heirs or assigns, with covenants on the part of the grantor, (1) that at the time of the making and delivery of such deed he was lawfully seized of an indefeasible estate in fee simple, in and to the premises therein described, and had good right and full power to convey the same; (2) that the same were then free from all incumbrances; and (3) that he warrants to the grantee, his heirs and assigns, the quiet and peaceable possession of such premises, and will defend the title thereto against all persons who may lawfully claim the same. And such covenants shall be obligatory upon any grantor, his heirs and personal representatives as fully and with like effect as if written at length in such deed.” Cahill’s St. ch. 30, 9.

Looking at the statute quoted as part of the contract of appellant, no support is found for his contention. The taxes were an incumbrance. They were a lien from the first day of May preceding. Cahill’s St. ch. 120, j[ 268. They were unpaid and interest and penalties for nonpayment had accrued. If the obligation imputed to him by the statute had been expressly stated at large in his deed we assume no lawyer would undertake to vary or explain it by parol evidence. We are unable to perceive any reason for allowing him to vary or explain away the declared legal consequences of his undertaking.

But appellant contends that the agreement for a net price is evidence he was not to pay taxes. Having held he cannot show such exemption, not having expressly written it in his deed, we would not consider that contention but for the sincerity of counsel for defendant in making it. He received the net price he contracted for. It was paid in cash. When he dealt with Stoughton and afterward with Palmer, Stoughton having failed to complete the bargain, we may conjecture from general knowledge of such transactions he supposed or feared he was dealing with them as agents for an undisclosed principal. He was willing to sell but was not willing to pay anything for finding a purchaser. By the terms of his contract as stated in the stipulation he got what he demanded. But the suit now is not for recovery of commissions, or for any money due upon the agreement between him and Palmer. His liability, as found by the circuit court, is for breach of his written contract or warranty of a good title free from incumbrance. The first contract was not breached, the latter was and out of that breach this action arose. We think counsel concede this when they say in their brief, and asked the court to hold, that under the law and the facts, plaintiffs are entitled to recover only nominal damages for the alleged breach of contract, if entited to recover. If there was no breach, they could recover nothing. If there was a breach they should recover full damages, the measure of which is correctly stated in the stipulation upon which judgment was rendered. The court did not err, therefore, in refusing the proposition of law submitted containing that principle.

The second contention of appellant is, the court erred in refusing the following proposition: “The court holds as a proposition of law that the plaintiff in this case cannot recover at the suit of Wesley Palmer, Ben Gaines and Albert Parnham, Trustees of Dell Lodge No. 422, Knights of Pythias, as plaintiffs against defendant in an action for breach of covenant against incumbrances upon a deed wherein the grantee is named ‘Dell Lodge No. 422, Knights of Pythias, Sidell, Illinois.’ ”

It is stipulated the suit was prosecuted by the individuals as trustees of Dell Lodge, No. 422, Knights of Pythias, and that the master of the exchequer (the treasurer) of the lodge, upon the order of the three trustees, as trustees, paid the amount of taxes, interest and penalties. The purpose in paying was to protect the property of the lodge from sale by reason of the delinquent taxes. As trustees generally, it was their duty to do so. It might well be that, if the deed had been made to the trustees and a suit brought in the name of the lodge, a recovery could not be had. The lodge could not be a representative of the trustees. But it would not follow that title conveyed to the lodge would not vest in the trustees. In the popular as distinguished from the restricted sense, the term “trustee” is used with regard to persons whose duties, obligations and relations do not make them technically trustees. 39 Cyc. 19. But the parties to this controversy were not using the term in any vague or popular sense. With them it was matter of serious import, recovery of a just debt, money claimed due from defendant as damages for a breach of his covenant deliberately entered into. This was known by defendant when he made the stipulation for the purpose of the trial. He seeks to evade it by going beyond the instrument containing his covenant. Failing in that, he seeks refuge in the proposition that the deed having been made to the lodge, its trustees “as trustees” are not the proper parties to compel reparation.

In support of the contention on this branch of the case, Harms v. McCormick 132 Ill. 104, is relied on. The case does not support it. That was an action of assumpsit by William Gr. McCormick, Emma L. Smith, Anna R. Blair and Lucy V. McCormick for rent of premises upon a demise alleged in the declaration to have been made by them of certain premises to defendants. A lease was admitted in evidence, the party clause being: “Between William G. McCormick, for himself, and as agent of Mrs. Emma L. Smith, Mrs. Anna R. Blair and Lucy V. McCormick, party of the first part, and John Marckwardt and Henry Harms, parties of the second part.” There were no covenants therein that indicate that William Gr. McCormick contracted in the names or on behalf of Mrs. Smith, Mrs. Blair or Lucy V. McCormick, or either or any of them. The testimonium clause was: “In witness whereof, the said parties have hereunto set their hands and seals the day and year first above mentioned: signed, W. G-. McCormick, John Marckwardt, Henry Harms.” The instrument having been offered in evidence was objected to on the grounds, first, it was void on its face; and second, that there was a variance between it and the lease or demise stated in the declaration. The statement is taken substantially from the opinion by Mr. Justice Baker.

As to the first objection, the court held the word “demise” in the lease “imported a covenant” on the part of the lessor or good right to make the lease and implied a covenant for quiet enjoyment. That there being no breach of the covenant, and lessees having enjoyed the premises in quiet possession, they were liable for the rents. On the second objection the. court held the declaration having charged the several parties complaining had executed a lease under the terms of which defendants were liable for rent, and the lease disclosing only one of the plaintiffs had executed it, there was a fatal variance. Nothing more is decided by that case. Nothing said in the opinion in principle or otherwise is authority against the case made here by the admitted facts, that the plaintiffs, as trustees, having directed the treasurer of the lodge to pay the taxes, penalties and costs standing as an incumbrance against the lodge’s property, they, as its trustees, may not, for the lodge for which they are trustees, recover it from the defendant whose covenant bound him to refund it to the treasurer. Any assumed state of facts supported by the evidence will authorize a recovery before a justice of the peace, no written pleadings being required. For anything presented here, the court properly refused the second proposition. Moore v. House, 64 Ill. 162, cited by appellant is not authority for his position.

Under the case made by the stipulation upon which judgment was rendered, we find no reason for disturbing the finding and judgment of the circuit court and it is therefore affirmed.

Affirmed.


text:
    Ray Clubine, Appellee, v. Louis Citro, Appellant.
    Gen. No. 7,883.
    1. Appeal and ebbob — court must be pressed for ruling on objection. Where record does not show court was pressed for a ruling on an objection to argument of counsel and no ruling was made, there is nothing to review.
    2. Evidence — prior agreement cannot be shown by parol. Whatever the parties may have said previous to reducing a contract to writing, the writing when executed expresses the final concurrence of the minds of the parties, in the absence of fraud or mistake, and parol evidence cannot be received to explain, change or qualify what the parties have so expressed.
    3. Contracts — overreaching held not shown. In an action for balance due under contract for construction of a dam, facts held not to show that defendant was overreached in entering into the contract.
    Appeal by defendant from the County Court of Macoupin county; the Hon. Frank G-. Wood, Judge, presiding. Heard in this court at the April term, 1925.
    Affirmed.
    Opinion filed June 27, 1925.
    Jesse Peebles and Murphy & Hemphill, for appellant.
    Alfred A. Isaacs and Rinaker & Rinaker, for appellee.
   Mr. Justice Crow

delivered the opinion of the court.

Appellee entered into a written contract with appellant to construct for appellant a dam for impounding water. Money was paid on the contract from time to time as the work progressed. The description of the dam in the contract is: This dam is to be constructed at the location as now staked out on the premises and is to be approximately 111 feet wide at the bottom, 8 feet wide at the top, with an upper slope of 3 to 1 and a back slope of 2 to 1. The dirt for the dam is to be obtained by excavating in front of the dam. The provision for payments for construetion is: “The owner shall pay as the full price for the construction of said dam the sum of $2,750, payable as follows: On the first and fifteenth days of each month estimates shall be made of the amount of dirt in place in the dam and the owner shall pay on those dates 90 per cent thereof at the rate of 24 cents per yard after deducting any former payments. The final payment shall be such an amount as will make the total of all payments the sum of $2,750. Payments were made from time to time upon measurements of earth, the first being $1,000 August 5, $600 August 28, $300 September 2, and $25 September 16, substantially at the intervals as provided in the contract, leaving a balance under it of $625, which appellant refused to pay and the action for that amount was brought. The declaration consisted of the common counts and a special count, as it is said, though it is not in the abstract. The general issue only was pleaded. There was a verdict and judgment for appellee and this appeal followed.

It is assigned as error that one of the attorneys for plaintiff made prejudicial remarks to the jury in his argument. Defendant is an Italian and it is said the remarks were concerning his wealth, his business acumen and sagacity. We have carefully read the remarks as abstracted, and are impressed with the conviction that if made on any other occasion than an unsuccessful jury trial, appellant could not regard them as in any way or to any extent derogatory. There is nothing in them reflecting upon his character as a citizen nor as a man of business. It is said the court did not pass on the objection to this part of the address. The record does not show he was pressed for a ruling and in the absence of such showing there is nothing to review. The presiding judge evidently did not regard it as reflecting harmfully on bim in any way and in this view we concur.

It seems an engineer, who afterwards died, planned the dam to be erected across a hollow or ravine; that in doing so he set stakes at intervals on the hill slopes and at the ends of the dam and one in the middle of the dam, and it was contended that the earth was not filled in to make the water conform to the stakes so set. A mark was made on a tree that it is said indicated the height at which the water would stand in the lake when the dam was completed. Citro showed appellee the stakes. Appellee says there were but three stakes — those indicating the ends and the middle of the dam. There was much evidence offered by defendant as to the stakes and the estimated water fine. To some of the evidence objections were sustained, others overruled. Defendant also sought to prove that before the contract was entered into appellant explained fully to appellee that the stakes indicated the water level and that the dam should be constructed higher and that appellee made his computation accordingly. To this evidence objection was sustained. Instructions were offered by appellant along the same lines but they were refused: The rulings of the court in those respects are urged as reversible errors.

The cases cited and quoted by appellant have been considered but do not apply to the situation now before us and do not sustain appellant’s contention. It must be observed that the most elementary doctrine with regard to written contracts is that whatever the parties may have said previous to reducing the contract to writing, the writing itself when executed expresses the final concurrence of the .minds of the contracting parties in the absence of fraud or mistake, and parol evidence cannot be received to explain, change or qualify what the parties have so expressed. This is hornbook principle and requires no citation of authority, though much is available. The doctrine is concisely stated in the first, second and third instructions given to the jury at the trial and it was not error to give them.

It is claimed that appellant was overreached in entering into the contract. Every limitation in it as to the structure of the dam was assented to by appellant. First, the physical structure, from one hill slope to another, the distance being known by the parties, and though not expressed, was implicitly agreed upon. Second, the width at the bottom, at the top, and the slope on front and back is stated. Third, enough of cubic yards of dirt at 24 cents per cubic yard “to amount to the full price for the construction of said dam of $2,750,” payable as stated above. All were conditions that necessarily limited the dam to the size and dimensions for which appellee is seeking the remainder of compensation for constructing. If the quantity of water to be impounded, and not the dimensions of the dam and the cost of constructing it, was the desideratum of appellant, he should have insisted upon that measure in his contract. Having failed to do so, the courts will not do it for him, nor aid him as against his contract and place the loss on the contractor. The rulings complained of on the evidence and instructions, being in harmony with these elementary principles, were not error.

The judgment of the county court is affirmed.

Affirmed.


author: Mr. Presiding Justice Shurtleff

text:
    Ethel May Rayborn, Executrix of the Last Will and Testament of Henry S. Rayborn, Deceased, et al., Appellees, v. The Farmers State Bank and Trust Company, et al., Appellants.
    Gen. No. 7,837.
    1. Estates of decedents — widow's consent as prerequisite to sale of lands free from homestead estate. In absence of consent by widow, court erred in ordering sale of lands free from homestead estate, under Rev. St. ch. 3, sec. 101, Cahill’s St. ch. 3, If 102.
    2. Estates of decedents — sale of land free from homestead and subject to dower. Where widow did not consent to sale of land free from homestead, it was error to order sale of all lands including those freed from homestead estate by such decree subject to dower, widow not being entitled to homestead estate and dower in same lands.
    3; Estates of decedents — representative as heir must cause dower and homestead to he assigned. When executor of estate is an heir and interested in the estate and applies to sell real estate without the assignment of dower and homestead, or either, in a proper case for assignment of such estate to the evident sacrifice of the selling value of the lands, the court should refuse a decree upon the objection of a party interested, under Administration Act, sec. 101, Cahill’s St. ch. 3, K 102, and Dower Act, sec. 18, Cahill’s St. ch. 41, V 18.
    Appeal by defendants from the County Court of Morgan county; the Hon. H. P. Samtteix, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed and remanded.
    Opinion filed June 27, 1925.
    John L. Reeve, for appellants.
    L. H. Jonas and Bellatti, Belatti & Moriarty, for appellees.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.

This cause was before this court at its April term, A. D. 1923, as Gen. No. 7,723, and for a more extended statement of the case reference is had to the opinion filed at that time. [See 234 Ill. App. 183.]

Henry S. Rayborn died April 25, 1923, leaving his widow, Ida E. Rayborn, and his daughter, Ethel May Rayborn, his only heirs him surviving. Deceased died seized of two houses and lots in the City of Jacksonville, one of which had been his homestead and where his widow is now residing, appraised in the inventory at the sum of $5,000, and the other appraised at the sum of $3,500; a tract of land consisting of 79 acres and another tract of 59% acres, both tracts situated in Greene county and appraised in the inventory at $5,540; a farm consisting of 208% acres, situated in Morgan county, estimated by the executrix to be of the value of $20,850, and so entered in the inventory. The personal property in the estate amounted to the sum of $518. The deceased left a last will and testament which has been proven, by which he devised the use of his entire estate to his widow, Ida E. Eayborn, during her natural life. The will devises to the Farmers State Bank and Trust Company, subject to the use of the widow for life, the 208% acres of farm land in Morgan county, in trust to enter into the possession of the same and to collect the rents, issues and profits thereof and to pay the same to his daughter, Ethel May Eayborn, during her natural life, and upon the death of. said Ethel May Eayborn and her mother, Ida E. Eayborn, said trustee is to convert said lands into money and to distribute and divide the same equally among the children of his said daughter. It is further provided that in case the said daughter leaves no descendant or descendants her surviving, said proceeds shall be paid, one-half to the Odd Fellows’ Orphans Home for children at Lincoln and the other one-half to the Odd Fellows’ Home for the aged at Mattoon, as a permanent endowment fund for each of said institutions, etc. The daughter, Ethel May Eayborn, is made the residuary legatee and devisee and is now a single lady. The daughter, by the terms of the will, was appointed and has qualified as the executrix of the estate. Various claims were allowed against the estate, amounting to the sum of $1,342.58, and a claim was presented by the widow, Ida E. Eayborn, amounting to the sum of $17,392.45, which was approved by the executrix and allowed by the county court prior to the filing of the petitions for leave to sell real estate to pay debts. It is charged that the claim of Ida E. Eayborn is fraudulent and fictitious and its allowance brought about by collusion with the executrix, upon which question it is not necessary to pass in deciding this ease.

The executrix filed her first petition for leave to sell real estate to pay debts in the county court of Morgan county, praying that the lands specifically devised in trust to appellants be sold to pay said debts. A decree was entered in pursuance of said petition and prayer, which was reversed at the April term, A. D. 1924, of this court, Gen. No. 7,723. [234 Ill. App. 183.] The cause being remanded to the county court of Morgan county, the widow, Ida E. Rayborn, renounced the terms of the will and accepted the portions of the estate provided for her by statute. No effort has been made to set off the dower and home-stead of the widow in the lands and the petition does not ask for such relief. Thereafter, the executrix, abandoning the former petition, filed her amended petition in the county court for a decree to sell the houses and lots in the City of Jacksonville and the Greene county lands first, and to sell the same subject to the dower and homestead rights of the widow, and that resort do not be had to the lands devised to appellants unless there be a deficiency, in which case the sale of those lands is prayed.

Appellants answered the petition averring that the claim of Ida E. Rayborn was unjust and fraudulent and allowed by the collusion of said claimant and executrix, and denied that the petitioner was entitled to a decree to sell said lands subject to the dower and homestead rights of the widow, and averred that to sell said lands subject to dower and homestead would result in a gross sacrifice in their value, and that no purchaser could be procured who would bid the fair value of said lands, and averred that the whole object of the proceeding, the allowance of said claim and the filing of said petition, and the attempt to sell the lands, as prayed for in the petition, was for the purpose of destroying said trust or rendering it ineffective.

To the petition as filed in the name of Ethel May Rayborn, as executrix, the widow, Ida E. Rayborn, and Ethel May Rayborn individually, entered their appearances as defendants, and were defaulted. There was a hearing and a decree as prayed for, except the court found that the said Ida E. Rayborn, widow, had not consented to a sale of her estate of dower; found the identity of the homestead premises of the said widow, and determined that the value of the same was in excess of $1,000 and ordered the same sold free of the homestead estate, and decreed that the sum of $1,000 be paid to the widow in lieu of said estate, without the consent or written request of said widow, and the decree provided that all lands, including the estate of homestead, should be sold subject to the widow’s dower. The appellants excepted to all of these proceedings and by appeal have brought the record to this court.

The question is raised in this case, under the Act authorizing county and circuit courts to carry out the power in administrators and executors to sell lands to pay debts of decedents [Cahill’s St. ch. 3, j[ 99 et seq.], whether it is error to decree such sales, subject to dower, in a case where the widow is a party over the objection of the heir or devisee. Appellees contend that the sale is legal and the proceeding free from error, citing Kenley v. Bryan, 110 Ill. 652, and Oettinger v. Specht, 162 Ill. 179.

In Kenley v. Bryan, supra, the administrator filed his petition in the county court for the sale of lands to pay debts and for the assignment of dower and homestead. Commissioners were appointed and the dower and homestead were assigned and by the terms of the decree all lands were sold, those free from incumbrance as well as the lands assigned, subject to the dower and homestead. No objections were raised, pending the hearing in court or to the approval of the sale. Several years later some of the heirs filed a bill in the nature of a bill to review the proceedings and to impeach the decree for fraud. In this case, the debts exceeded the value of the land, and it was held that the court had jurisdiction to order the dower lands sold subject to the dower.

In Oettinger v. Specht, supra, the administrator filed his petition in the county court for the sale of land to pay debts and also for the assignment of dower and homestead. Commissioners were appointed who set off lots for a homestead, but reported that dower could not be set off to the widow without manifest prejudice to the parties in interest, and the court decreed the sale of the lands subject to the dower. There was a sale and the court approved the sale, without any objection being made to the proceedings. Several years later, one of the heirs having died, her administrator sued out a writ of error from the Supreme Court to reverse the decree and it was held, on the authority of Kenley v. Bryan, supra, only, that the county court had jurisdiction to order the sale of the lands to pay debts, notwithstanding the lands were subject to dower. No other cases are cited by appellees. Other cases could be cited and there are eases where the estate of the heir may be levied on and sold for the payment of his debts subject to the homestead estate of the widow of the deceased (Claffy v. Farrell, 196 Ill. App. 246; Brokaw v. Ogle, 170 Ill. 115, and Dinsmoor v. Rowse, 200 Ill 555), and under section 101 of the Administration Act the court may order a sale of the estate of homestead and fee together and divide the proceeds of the sale by giving to the person entitled to the homestead the cash value of the same. (Section 101, ch. 3, Rev. St.; Cahill’s St. ch. 3, ¶ 102; Hayack v. Will, 169 Ill. 145; Reminger v. Joblonshi, 271 Ill. 73.) Cases may be found where any interest in land and subject to any kind of an incumbrance has been sold and the sale upheld, but they are of little value to the decision in this case as the circumstances were different or the objection was not raised.

In the ease at bar, the court found that the value of the premises occupied as a homestead was in excess of $1,000 and ordered the same sold free from the homestead estate. There is no testimony in the record tending to show the value of said premises; no attempt was made to have the homestead estate set off or assigned and the widow did not consent in writing to the sale of the homestead estate. In addition, the decree provides for dower in all the lands, including the homestead. Appellants contend that that portion of the decree is void, citing: Hartman v. Schultz, 101 Ill. 442; Mueller v. Conrad, 178 Ill. 284; Powell v. Powell, 247 Ill. 432, and Reminger v. Joblonski, 271 Ill. 73, while appellees insisted that appellants should be estopped from raising this question, inasmuch as appellants in their answer insisted that in equity and good conscience that for the homestead of said widow she should be paid $1,000 and the real estate in which she had a homestead should be sold free and discharged of her homestead estate. Doubtless appellants intended by their answer that the homestead estate should be sold in a legal manner and not by a method in which “she could eat her cake and keep it.”

In Powell v. Powell, supra, the court after reciting section 8 of the Exemption Act [Cahill’s St. ch. 52, [f 8] as to the enforcement of liens in a court of equity, and providing for the sale of the lands freed from the homestead estaté when the value exceeds $1,000, and sections 10 and 11 of the same Act [Cahill’s St. ch. 52, [¡[[ 10,11], providing for commissioners to appraise the lands and report to the court whether the lands are susceptible of division, and section 4 [Cahill’s St. ch. 52, ][ 4] for the release of the homestead by an order of a court of competent jurisdiction, where the exemption is continued for the benefit of a child or children, and section 101 of the Administration Act, to which we have referred, holds:

" There is nothing in these statutory provisions that expressly authorizes the heirs or devisees of the deceased householder to compel the surviving husband or widow to vacate, release, abandon or sell the homestead where it is not susceptible of assignment and is of greater value than $1,000. Still, in the construction of the Homestead law, which expressly limits the extent of the homestead estate to $1,000, in connection with other provisions of the statute, this court has held that the surviving husband or widow is not entitled to the exclusive possession of an unassignable homestead which is worth more than $1,000 (Wilson v. Illinois Trust & Savings Bank, 166 Ill. 9), and that a court of equity, under its general chancery powers, independently of the Partition Act, had jurisdiction to enter a decree adjusting the respective rights of the heirs or devisees and the party entitled to the homestead. (Mix v. King, 55 Ill. 434; Hotchkiss v. Brooks, 93 Ill. 386; Wilson v. Illinois Trust & Savings Bank, supra.)

The reason of the rule is plainly stated in Hartman v. Schults, supra, at page 442; Mueller v. Conrad, supra, at page 281; Reminger v. Joblonski, supra, and Powell v. Powell, supra, that the exemption is from levy and forced sale for the payment of debts or other purposes, and it is a matter of no difference as to the amount of judgments or the number of decrees; unless the statute is followed, the sale is' void. Language could not be plainer or reasoning more cogent to carry out the spirit of the Exemption Act.

There has never been any authority to forcibly extinguish a homestead estate in lands where the same were not susceptible of division and the value of the lapds exceeded the sum of $1,000, except by following the statute, or under the general chancery powers of a court of equity. (Wilson v. Illinois Trust & Savings Bank, 166 Ill. 13; Powell v. Powell, 247 Ill. 438; Macaulay v. Jones, 295 Ill. 618, and Richardson v. Trubey, 250 Ill. 582.) County courts and courts of probate have no such equity or chancery powers. (Hannah v. Meinshausen, 299 Ill. 530; Sebree v. Sebree, 293 Ill. 234; Therens v. Therens, 267 Ill. 592; Bocock v. Leet, 210 Ill. App. 411; Garrard v. Ashbrook Co., 222 Ill. App. 392.)

In the opinion of this court the decree ordering the sale of the lands free from the homestead estate was void. It was error also under the decree to order the sale of all the lands, including those freed from the homestead estate to be sold subject to dower. The widow was not entitled to her homestead estate in cash and dower in the same lands. Merritt v. Merritt, 97 Ill. 243.

As to that part of the decree providing for the sale of the lands subject to the widow’s dower. Under section 18 of the Dower Act [Cahill’s St. ch. 41, [[ 18], it became the duty of the heir at law, or other person having the next estate of inheritance or freehold in said lands or estate, to lay off or assign dower as soon as practicable after the death of the testator. This section did not become operative in the case at bar until the widow had renounced under the will. The renunciation was filed July 18,1924. The petition in this cause was filed August 4, 1924. It was the duty of Ethel May Eayborn, not as executrix but as an heir, as soon as practicable after said renunciation to proceed to lay off and assign dower to the widow. This she could have done in her petition in this cause under section 44 of the Dower Act [Cahill’s St. ch. 41, [[ 44]. After thirty days, if dower was not assigned under section 19 of the Dower Act [Cahill’s St. ch. 41, ][ 19], the widow could sue for and recover the same. Certainly, in the very language of the statute, it was the “duty” of the heir to lay off and assign dower within thirty days. This she did not do, but in this proceeding is urging a decree for an order to sell lands subject to the dower rights of the widow. In a similar proceeding in Grote v. Grote, 275 Ill., on page 209, the court said:

“All the parties, whether complainants or defendants, were equally interested in this adjudication and each had a right to have all questions correctly determined. To make the decree of sale subject to dower without determining its value was to leave a large part of the litigation undetermined. The expense of this suit would have been to a large extent wasted and the purchaser would be left to contest in another suit the amount of the widow’s dower if he did not settle with her. This would necessarily affect unfavorably to the heirs the price which the property might be expected to bring at the sale. The parties had a right to have this question settled in this litigation, and it was error prejudicial to the appellants to decree, against their objection, a sale reserving to the widow, a party to the suit whose rights could be determined now, the right to future litigation with the purchaser. ’ ’ The cause was reversed and remanded for the causes given.

In a case where the executor or administrator is not an heir and not interested in the estate and is administering the estate fairly, impartially and honestly, the court need not be concerned whether the representative, in a proceeding to sell land to pay debts, applies to cause dower and homestead or either to be assigned and set off; but when the representative of the estate is an heir and interested in the estate and applies to sell real estate without the assignment of dower and homestead, or either, in a proper case for assignment of such estate, to the evident sacrifice of the selling value of the lands, the court should refuse a decree upon the objection of a party interested.

For the reasons given the decree of the county court of Morgan county is reversed and the cause remanded to that court for further proceedings in accordance with the views expressed in this opinion.

Reversed and remanded.


author: Mr. Justice Shurtleff

text:
    Jacob S. Palmer, Appellant, v. Lewistown National Bank, Appellee.
    Gen. No. 7,840.
    1. Foreclosure of mortgages — right of junior incumbrance to proceeds of receivership. In order for junior incumbrance to be entitled to profits and proceeds of a receivership in preference to the senior or prior lienholder, it must appear that the senior lien-holder is not a party to the foreclosure suit or that the receiver was appointed for the benefit of the junior incumbrance alone, and not for the benefit of all the parties to the suit, in order to secure to the junior incumbrance the exclusive right to the rents.
    2. Foreclosure of mortgages — senior lienholder not bound by decree appointing receiver during vacation. Where senior incumbrancer foreclosed and applied for a receiver but no receiver was appointed, and during vacation junior incumbrancer filed petition for appointment of receiver and receiver was appointed without notice to the senior lienholder, the latter was not bound by any of the terms of the decree.
    3. Foreclosure of mortgages — receiver held not appointed for benefit of junior mortgagee alone. Receiver appointed by court on petition of junior mortgagee held not appointed by the court for the benefit of the junior mortgagee alone to the exclusion of other lienholders, and junior mortgagee was not entitled to the rents collected by the receiver to the exclusion of the senior lienholders.
    Appeal by plaintiff from the Circuit Court, of Fulton county; the Hon. Walter C. Frank, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed and remanded with directions.
    Opinion filed June 27, 1925.
    Harry M. Waggoner and O ’Harra, O’Harra & O’Harra, for appellant.
    Glen Ratcliff, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

The issues involved in this suit pertain to the right to a fund in the receiver’s hands, showing a balance of $984.47 collected from rents, issues and profits of the lands mortgaged after the deduction of all proper charges and expenses. The suit was brought by appellant Palmer to foreclose a mortgage given by the defendants James H. Shaw and Minnie Shaw, his wife, on January 7, 1918, for $10,000, upon which the interest remained unpaid and appellant averred that he had paid a large amount of drainage assessments and taxes which were in default upon the lands. Stephen Martin, to whom the equity in the lands had been transferred by the Shaws, was made a party defendant, and the Farmers State Bank of Lewis-town and appellee, holding second and third deeds of trust for mortgage indebtedness, respectively, were made parties defendant. There were answers by the defendants holding the second and third trust deeds, and appellee filed a cross-bill from which it appears that on said 7th day of January, 1918, the defendants James H. Shaw and Minnie Shaw, his wife, executed a trust deed by way of mortgage security to one Lemuel Potts, subject to the said trust deed to appellant, for the principal sum of $6,000, upon which the makers were in default in the payment of interest; and that upon October 8, 1921, the said Shaws executed a trust deed as a third mortgage security to secure an indebtedness in the principal sum of $6,200 to appellee, drawing interest at the rate of 7 per cent per annum and falling due on January 7, 1923, subject to the said mortgages to appellant and the Farmers State Bank of Lewistown, and which indebtedness to appellee was past due at the time of the filing of said cross-bill. Proper answers and replications were filed. The cause was referred to the master in chancery and a report filed, with the proofs, by the master and a decree entered at the May term of the Fulton county circuit court on June 18, 1923.

We are not able to find in the abstract or in the record the master’s report or the proofs taken before the master or anything as to the conditions or provisions in appellee’s trust deed or mortgage, other than as set out in the decrees entered and the allegations in the bill, answer and cross-bill. The decree finds that appellant’s indebtedness amounted to the sum of $17,665, and that the defendants James Shaw and Minnie Shaw were insolvent and that the said Martin, who had assumed the payment of said indebtedness, was insolvent, and that the lands were scant security for the payment of said debt, and that under the terms and provisions of said trust deed appellant was entitled to have a receiver appointed during the period of redemption to collect the rents, issues and profits of the land and apply the same upon the costs, taxes, insurance and any deficiency upon a sale, of an amount to pay said debt and interest.

The decree further found that the total indebtedness under the trust deed to the Farmers State Bank amounted to the sum of $7,082.05 and that the same was subject to the indebtedness of appellant and there were similar findings under the terms of the second trust deed to the Farmers State Bank as to the insolvency of the Shaws and Martin, and that the land was scant security and the right to a receivership, in behalf of said bank, as found in favor of appellant. As to the indebtedness to appellant Palmer and the Farmers State Bank, the' securities having been executed between July 1, 1917, and July 1, 1921, the court decreed the issuing of certificates to said creditors for the amount of said indebtedness and decreed a sale at the end of the period of redemption if the lands were not redeemed prior to that time.

The decree further found the indebtedness of appellee, upon said trust deed, to amount to the sum of $7,409.80, and made it subject to the indebtedness of appellee and the Farmers State Bank; found the same condition of insolvency as to the defendants and that the lands were scant security for the payment of said debt and as to appellee’s indebtedness, the court found:

“That the rights of all the parties to the suit, other than the said Jacob S. Palmer and the Farmers State Bank, * * * are subsequent, junior and inferior to the rights of the Lewistown National Bank under its said trust deed. * * * The Lewistown National Bank is entitled to have a receiver appointed with power to receive and collect the rents, issues and profits arising out of said premises during the pendency of this foreclosure suit and until the right to redeem said premises has expired; that the said real estate * * * is scant security for the payment of the amount due the Lewistown National Bank after satisfaction of the amount due Jacob S. Palmer and the Farmers State Bank, and that said real estate is not of sufficient value to pay the total amount due to said Lewistown National Bank, after satisfying the amounts due said Palmer and said Farmers Slate Bank; * * * that by reason of the insufficiency of the security and the insolvency of the persons who are personally liable for the payment of the indebtedness due said Lewistown National Bank, said Lewis-town National Bank is entitled to a receiver to take possession of said premises and collect and receive the rents, issues and profits arising out of the same, and apply such rents, issues and profits so collected upon the payment of the expenses of such receivership and costs in this proceeding, and for proper insurance on the buildings and on said premises, and upon the taxes and necessary repairs and to apply the remainder upon the amount due to the said complainant in the original bill, and with the same powers and duties that á receiver usually has and performs.”

The decree as to appellee’s trust deed — it having been executed after July 1, 1921 — provided for an immediate sale. There was no receiver appointed by the terms of the decree or during the term. The May term of the Fulton county circuit court adjourned to court in course on June 27, 1923. On July 21, 1923, the master sold the lands to satisfy the indebtedness of appellee, and they were struck off to appellee for the sum of $6,000, subject to the rights of appellant and said Farmers State Bank of Lewistown, leaving a deficiency of said debt owing to appellee in the sum of $1,567.25, which has not been paid.

In vacation after the May term of said court, 1923, appellee, upon giving notice to James Shaw, Minnie Shaw, Stephen Martin and Ora Shaw, who was in possession of said lands, presented its petition to the presiding judge of said court, setting out said sale and deficiency and praying for the appointment of a receiver. The court, in vacation, appointed the receiver and recited in the order:

“That in and by the said trust deed, given to petitioner, the rents, issues and profits of the said premises were mortgaged and that * * * such court might, at once, upon application therefor appoint any suitable person receiver with power to receive and collect the rents, issues and profits arising out of said premises and apply the same toward the payment of the expenses and costs in said proceeding, and for proper insurance on buildings, taxes and necessary repairs and the expenses of such receiver and any remainder on said indebtedness, and that said receiver should have full power of receivers and such other power in the premises as to the court may seem proper; and that said petitioner, the Lewis-town National Bank, is entitled to have the rents, issues and profits belonging to the said Stephen Martin collected by a receiver and applied on the indebtedness still remaining due and owing to the said Lewistown National Bank.
“It is therefore ordered, adjudged and decreed that E. E. Routson be and he is hereby appointed receiver with full power and authority to collect the rents, issues and profits from the property described, * * *
“It is further ordered that E. E. Routson, as such receiver, shall make report from time to time to the Circuit Court of Fulton County, Illinois, of his acts and doings in the premises and bring the moneys so collected or received by him, as such receiver, in the court to be paid out and distributed under the order of said court.”

A bond was required and given for such receiver and appellee was required to and gave a bond in the sum of $2,500 to pay all damages caused by reason of the appointment of such receiver. The lands were not redeemed from the certificates issued upon the debts of appellant and the Farmers State Bank, and upon a sale held on October 11, 1924, the lands were sold for $1,280.17, less than sufficient to pay appellant’s indebtedness, interest and costs upon the first trust deed, and leaving a deficiency in the sum of $1,280.17 upon appellant’s indebtedness, and appellant and appellee each filed motions in this suit to have the balance in the receiver’s hands applied upon his and its deficiency. The circuit court of Fulton county awarded the fund to appellee, holder of the third security, and appellant has brought the record to this court by appeal for review.

Various arguments are presented and cases cited in the briefs by counsel to support their respective contentions upon this record. The Supreme Court of this state in Cross v. Will County Nat. Bank, 177 Ill. 33, had before it the direct question as to when and under what circumstances a second mortgage or junior incumbrance would be entitled to the profits and proceeds of a receivership in preference to the senior or prior lienholder, and on page' 40 of that opinion the court laid down the general rule:

“It must appear that the first mortgagee is not a party to the foreclosure suit begun by the second mortgagee, or that the receiver was appointed for the benefit of the second mortgagee alone and not for the benefit of all the parties to the suit, in order to secure to the second mortgagee the exclusive right to the rents of the mortgaged property.”

It needs no argument to conclude that appellee, a third mortgagee, must come under the second clause of the subjunctive description in this case. There is some contention that the appointment of a receiver in this case in vacation, by petition, was a separate proceeding of which appellant did not form a part, and while it is true that appellant was given no notice of the proceeding, the petition for the appointment of a receiver is entitled and numbered as the cause and original bill filed by appellant to foreclose his first mortgage and recites the entire proceedings, and it must be construed as a part of the foreclosure suit, instituted by appellant. In Cross v. Will County Nat. Bank, supra, the court, on page 42 says:

“The original bill, filed by appellant, did not ask for the appointment of a receiver for the sole benefit of the appellant as judgment creditor, but the prayer of the bill was, that ‘a receiver be appointed herein for the said two leasehold interests hereinbefore named with the improvements thereon with the usual powers of receivers in like case. ’ In this respect the bill was like the bill filed in Miltenberger v. Logansport, C. & S. W. Ry. Co. [106 U. S. 307], supra, of which it was there said: ‘The original bill evinced no intention to create a receivership for the sole benefit of the second mortgage bondholders.’ In addition to this, the appellee, the Will County National Bank, was a party defendant to the original bill filed by the appellant in aid of the execution issued upon his judgment. Not only so, but the order,. appointing the receiver and entered on September 16, 1890, shows that the receiver was not appointed for the benefit only of the appellant as a junior lienholder, but was appointed for the benefit of all the parties to the suit. By the terms of that order the receiver is directed ‘to take all needful and proper care of all said property, and keep the said elevators, feed mills, with the machinery and other structures on said leased ground, well and properly insured, in safe and responsible insurance companies, for the protection of the interests of such as-may be found to be interested in the property.’ The receiver was therein directed to care for the elevators, and keep them insured, and rent them, and out of the rents pay the expenses, but in no sense was he directed to apply the rents for the benefit exclusively of the appellant. This being so, it was proper to apply the rents to the liens on the property in the order of their priority; and, as the lien of appellee’s mortgage was prior to that of appellant’s judgment, appellee was properly entitled to have the rents applied upon its mortgage.”

In the case at har appellee, in its cross-bill, prayed for the appointment of a receiver generally and not for the benefit of appellee’s third mortgage alone, and in the decree appellee suffered the order of the court to he entered, decreeing that in case any receiver be appointed under the terms and provisions of appellee’s trust deed, the rents and profits should be applied, when collected, “upon the payment of the expenses of such receivership and costs in this proceeding, and for proper insurance on the buildings on said premises and upon the taxes and necessary repairs, and apply the remainder upon the amount due to the said complainant in the original hill."

This decree was not appealed from "and is still the decree settling the rights between the parties to this suit and is not reversed or vacated. But appellee contends that this decree was never given vitality by the appointment of a receiver and that its proceeding by petition, in vacation, was the first move in the cause to procure the appointment of a receiver, and that under the doctrine that equity aids the vigilant and not those who slumber on their rights (Cornell v. Newkirk, 44 Ill. App. 491, 144 Ill. 241; Dell School v. Peirce, 163 N. C. 424, 79 S. E. 687; and Bridgewater v. Ocean City Ass’n, 85 N. J. Eq. 379, 96 Atl. 905) the court should award the fund to the appellee in this cause.

Turning to the said petition submitted to the court in vacation, the petition recites various portions of the original decree and refers to the decree generally and makes it a part of the petition, the same and as fully as though it were fully set out in the petition, and the petition recites: “that by virtue of the terms of said trust deed (3rd) and in accordance with the equity and good conscience, that your petitioner is entitled to have a receiver appointed to collect the rents, issues and profits arising out of said premises during the period of redemption, etc.”

The petition further sets out that there are crops growing on the land and that it is necessary that the application be made in vacation in order that said crops and the rents, issues and profits may be secured * * * for the purpose of applying the same upon the deficiency due the petitioner, “in accordance with the terms of said trust deed and as in equity and in good conscience they should be applied.”

Petitioner further alleges that said Ora Shaw was in possession of said lands, and that under the terms of such tenancy said defendant Martin was the owner of one-half of said crops, and “that under the terms of said trust deed said crops should be preserved and secured to your petitioner to apply on the indebtedness still due your petitioner.”

The prayer of the petition is that the court appoint a receiver “to take charge of said premises described herein and to collect the rents, issues and profits thereof and to account for the same to this court and to pay the same out under the further order of the court.” We have already cited the substance of the order, based upon such petition. It does not find that such rents and profits should be recovered expressly for the appellee alone to the exclusion of all other lienholders. The order merely recites: “that appellee was entitled to have the rents, issues and profits collected by a receiver and applied on the indebtedness still remaining due and owing to the said Lewis-town National Bank,” but no such order was entered, but the receiver was ordered to collect and to make report from time to time to the circuit court of Fulton county and “to bring the moneys so collected or received by him in the court to be paid out and distributed under the order of said court,” the order apparently following that portion of the petition wherein petitioner states that such payments should be applied, “in accordance with the terms of the trust deed and as in equity and in good conscience they should be applied.” This is far from an order setting aside these rents and profits for the benefit of appellee’s mortgage alone to the exclusion of other lienholders, and is, without doubt, in consonance with the view that all parties had of the situation at that time, namely, that the mortgages would have to be paid off in accordance with their seniority and that the lands would likely sell for sufficient to pay the indebtedness of the first and second mortgages, and that, if appellee secured any funds to apply upon its indebtedness, such funds would have to be secured through a receivership.

There are two substantial reasons why the decree of the circuit court of Fulton county cannot stand: First, appellee is bound by the decree of June 18, 1923, finding that any surplus of rents, issues and profits, secured by a receivership under the terms of appellee’s trust deed, should be paid over to the complainant in the original bill, appellant. Appellee’s trust deed is not in the record and it may be that the original decree was so drafted from the terms and provisions of appellee’s trust deed. Appellant was not a party to the petition and decree entered in vacation and is not bound by any of the terms of the decree. Second, appellee, by the pleadings and orders entered, has not brought itself within the rule laid down in Gross v. Will Gomvty Nat. Bank, supra, that the receiver was appointed for the benefit of the junior mortgagee alone to the exclusion of other lienholders, which rule must be conceded to be the law of this State on the authority of the case cited. It follows that the decree of the circuit court of Fulton county should be reversed and the cause remanded with directions to enter a decree in the court below in accordance with the views expressed in this opinion.

Reversed and remanded with directions.


text:
    The People of the State of Illinois ex rel. J. R. Snapp and C. E. Pogue, Appellees, v. W. W. Younger, Appellant.
    Gen. No. 7,846.
    1. Corporations — by-law limiting number of votes invalid. By-law of a corporation that no person should be allowed to vote by proxy more than eight shares of stock was invalid, in view of Const., art. 11, sec. 3, and Rev. St. 1923, ch. 32, secs. 49, 50, Cahill’s St. ch. 32, Iff 49, 50.
    2. Corporations — votes in director election could be cumulated. Where three directors were to be elected, one owning stock and holding stock as proxy could cumulate his vote and give three votes for each share of stock voted by him if voting for only one director, in view of Const., art. 11, sec. 3, Rev. St. 1923, eh. 32, secs. 49, 50, Cahill’s St. ch. 32, ff 49, 50.
    3. Quo warranto — respondent has burden of shouting his election. In quo warranto the respondent has the burden of showing that he was elected and holds office de jure.

    Appeal by defendant from the Circuit Court of Shelby county; the Hon. P. R. Dove, Judge, presiding. Heard in this court at the April term, 1925.
    Affirmed.
    Opinion filed June 27, 1925.
    Rehearing denied October 13, 1925.
    U. G. Ward, for appellant.
    Rubert I. Pugh, State’s Attorney, for appellees: George B. Rhoads, of counsel.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This is an action in quo warranto in the name of the People upon the relation of J. E. Snapp and O. E. Pogue, brought against the respondent, W. W. Younger, questioning respondent’s election as a director in the Findley Grain and Coal Company, a corporation, under the laws of Illinois. Under the constitution and by-laws of the corporation, it has nine directors elected for a term of three years, three directors to be elected at the regular annual stockholders ’ meetings of each year. There were 200 shares of stock issued by the corporation at the regular annual stockholders ’ meeting held by the corporation on September 12,1923, of which due notice had been given, The meeting was called to order and adjourned to October 1, 1923. Upon October 1, 1923, at the adjourned meeting, there were 174 shares of stock represented by owners and proxies. Of these shares J. R. Snapp was the owner of 4, and the written proxies of 69 shares, authorizing him to vote them, had been filed with the secretary in due time in accordance with the by-laws. The names of four stockholders were placed in nomination for the three offices of director in said corporation, namely: Relator O. E. Pogue, E. M. Vennum, O. E. Pitzwater and respondent, W. W. Younger. In the voting, said J. R. Snapp cast the 73 votes in his hands for C. E. Pogue and cumulated the same making three times 73 votes cast for said Pogue or a total of 219 votes. There were twelve other single votes cast for Pogue, making a total of 231 votes cast for 0. E. Pogue. E. M. Vennum received 103 votes, C. E. Pitzwater received 103 votes and Respondent Younger received 91 votes. On counting the ballots, the presiding officer, J. E. Dazey, ruled that: “Snapp could not cumulate the vote; that the right to cumulate applied only to big corporations and did not apply to small corporations like the Findley Grain and Coal Company, and that the votes of Snapp should, therefore, only be counted as 73 votes,” making a total of 85 votes only for Pogue, and Vennum, Pitzwater and Younger were therefore declared elected as directors and are now holding such positions. The circuit court of Shelby county held that Pogue was duly elected a director and ousted Respondent Younger, and appellant has brought the record to this court for review.

Some contention is raised in this case over section 7 of article 16 of the by-laws of the corporation, which reads as follows:

“The shares of stock of said corporation may be transferred only on the books of the company, and they shall not be transferred upon the books of the company unless the consent of the directors be first given, and the directors shall not give their consent to one person owning more than eight shares; no person shall be allowed to vote as owner of stock more than eight shares, and no person shall be allowed to vote by proxy more than eight shares, and no person holding stock shall be allowed to vote the said stock unless the same has been duly transferred on the books of the company.”

It is contended by appellant that under this provision Snapp was not entitled to cumulate the votes of the proxies or vote more than eight of said shares by proxy at the election in question. This question was not raised in the lower court and no objection was raised at the election to Snapp’s voting the 69 proxy shares, one vote each for relator. In the opinion of this court section 7 of article 16 of the by-laws of the corporation is invalid.

Section 3 of article 11 of the Constitution of the State provides:

“The General Assembly shall provide, by law, that in all elections for directors or managers of incorporated companies, every stockholder shall have the right to vote, in person or by proxy, for the number of shares of stock owned by him, for as many persons as there are directors or managers to be elected, or to cumulate said shares, and give one candidate as many votes as the number of directors multiplied by the number of his shares of stock shall equal, or to distribute them on the same principle among as many candidates as he shall think fit; and such directors or managers shall not be elected in any other manner.”

In pursuance of said constitutional provision the legislature has provided in chapter 32 the Act concerning the corporations:

“Section 49. At all meetings, stockholders may vote either in person or by proxy executed in writing by the stockholder, or by a duly authorized attorney. No proxy shall be valid after eleven months from the date of its execution, except where the stock is pledged as a security for a debt to the person holding the proxy.
“Section 50. In all elections for directors every subscriber or stockholder shall have the right to vote in person or by proxy for the number of shares of stock owned by the holder for as many persons as there are directors to be elected, or to cumulate such shares and give one candidate as many votes as the number of directors multiplied by the number of shares of stock shall equal, or to distribute them on the same principle among as many candidates as the holder shall think fit.” (Chapter 32, secs. 49, 50, Eev. St. 1923.) [Cahill’s St. ch. 32, flfl 49, 50.]

This provision of the constitution and the statutory provisions cited have been construed by the Supreme Court in People v. Emmerson, 302 Ill., at page 307, where the court [quoting from Luthy v. Ream, 270 Ill. 170] said:

“ ‘Our law contemplates that corporations shall be controlled by a majority of the stockholders acting through directors elected by them, in person or by proxy. * * * The power to vote for directors can be exercised only by stockholders in person or by proxy, and they cannot be deprived or deprive themselves of this power. Stockholders cannot evade the duty imposed upon them by law of using their power as stockholders for the welfare of the corporation and the general interest of its stockholders. A stockholder may refuse to exercise his right to vote and participate in stockholders’ meetings, but he cannot deprive himself of the power to do so.’ The court also said in that opinion (p. 1$1): ‘The principle to be deduced from these cases is that the holders of the majority of the shares of stock in a corporation may control its management, and every person who becomes an owner of stock has a right to believe that the corporation will, and to insist that it shall, be managed by the majority; that the power to vote is inherently attached to and inseparable from the real ownership of each share and can only be delegated by proxy, with power of revocation; that each stockholder must be free to cast his vote, whether by himself or by proxy, for the best interest of the corporation, and that each stockholder has the right to demand that every other stockholder, if he desires to do so, shall have the right to exercise at each annual meeting his own judgment as to the best interest of all the stockholders, untrammeled by dictation and unfettered by the obligation of any contract. ’ ”

Under these provisions and the construction given to them by the court, it must be held that the by-law of said corporation placing a restriction upon the number of shares to be voted by proxy is invalid and that the votes cast by Snapp were entitled to be cumulated and should have been counted 219 votes for relator Pogue.

Appellant further contends that under the law the election was required to be held by ballot and that relators have produced no ballots and have not produced the best evidence showing relator’s election or accounted for the absence of such evidence. It is sufficient answer to this objection to point out that in quo warranto the respondent has the burden of showing that he, respondent, holds the office de jure. (Place v. People, 192 Ill. 162; People v. Paynter, 197 Ill. App. 83, and Clark v. People, 15 Ill. 213.) This, respondent has not done; on the contrary, it appears by the undisputed testimony that Eelator Pogue received the highest number of votes cast for any of the persons voted for at said election.

Finding no error in the record, the judgment of the circuit court of Shelby county is affirmed-

Affirmed.