author: Mr. Justice Burke

text:
    People of the State of Illinois, Defendant in Error, v. William L. Dickelman, Plaintiff in Error.
    Gen. No. 40,874.

      Heard in the third division of this court for the first district at the October term, 1939.
    Opinion filed April 10, 1940.
    Laurence B. Jacobs and Marcelltjs W. Meek, both of Chicago, for plaintiff in error; John Marshall Dahlberg, of Chicago, of counsel.

      Thomas J. Courtney, State’s Attorney, for defendant in error; Nathan Kinnally and John J. Phillips, Assistant State’s Attorneys, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

On November 18, 1937, the State’s Attorney filed a three-count criminal information in the county court of Cook county against William L. Dickelman, Neil N. McLean, William F. Rapelje, Jesse W. Ritter, Scott R. Weinland and Edward B. Keelen. The first court charges that defendants, as issuers, officers, directors, trustees or agents of the Westcoast Minerals Co., Ltd., a trust estate, did unlawfully sell securities without complying with par. 3, sec. 7a; sec. 7; sec. 6b; par. 2, sec. 7a, and sec. 9 of the Illinois Securities Law (ch. 121½, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 13.10, 13.09, 13.08, 13.12]), said securities consisting of one instrument purporting to be expectancy equities in the Westcoast Minerals Co., Ltd., a trust estate, which securities were not exempt from compliance with the Illinois Securities Law as a condition precedent to the sale thereof. The second count is the same as count 1, except that it charges that the defendants “did then and there aid and assist” the trust estate in the unlawful sale of securities, and “did then and there being chargeable as principals did then and there unlawfully sell to Frank J. Zavadil and Emilie Zavadil the securities aforesaid.” The third count is the same as the second count, except that it charges that the defendants “did then and there unlawfully sell to Frank J. Zavadil and Emilie F. Zavadil, and did then and there sell to divers other persons, whose names at the present time are unknown.” The only defendants apprehended were William L. Dickelman, Scott R. Weinland and J esse W. Ritter. Before trial, the cause was nolle grossed as to the defendant Jesse W. Ritter. The defendants, William L. Dickelman and Scott R. Weinland entered pleas of not guilty, and went to trial before a jury, which found them guilty as charged in the information. The court overruled their motions for a new trial and in arrest of judgment, entered judgment on the verdict, and sentenced each to pay a fine of $500 and to serve a term of 90 days in the common jail of Cook county. Defendant William L. Diekelman is prosecuting this writ of error for the purpose of reversing the judgment.

The first criticism leveled at the judgment is that the county court of Cook county has no criminal jurisdiction. He calls attention to the provisions of sec. 2 of Division X of the Criminal Code (sec. 701, ch. 38, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 37.676]) which reads: ‘ ‘ The Criminal Court of Cook County shall have exclusive original jurisdiction of all criminal offenses in the County of Cook, except such as is conferred upon justices of the peace, and appellate jurisdiction from justices "of the peace.” No case has been called to our attention, nor have we been able to find any, in which either the Appellate or Supreme Courts have passed on this point. Questions relative to the jurisdiction of the criminal and circuit courts of Cook county and the municipal court of Chicago have been passed upon by our Supreme Court. The case of People v. Feinberg, 348 Ill. 549, involved a consideration of the jurisdiction of the criminal court of Cook county and the right of a judge of the circuit court who was not assigned to sit as a judge of the criminal court of that county to impanel a grand jury. The opinion in that case holds that a judge of the circuit court who is not regularly assigned to sit as a judge of the criminal court cannot enter orders in the latter court, and that such orders, when so entered, are void, and should be expunged. The Constitution of 1818 provides that the judicial power of the State shall be vested in one Supreme Court and in such inferior courts as the general assembly may from time to time ordain or establish. The county court is not specifically mentioned in that constitution. The Constitution of 1848 provides that the judicial power shall be vested in one Supreme Court, in circuit courts, in county courts and in justices of the peace. That constitution also authorizes the legislature to establish inferior local courts of civil and criminal jurisdiction in cities, which courts “shall have a uniform organization and jurisdiction in such cities.” The Constitution of 1848 also declared that “there shall be in each county a court, to be called a county court,” and that the jurisdiction of said court “shall extend to all probate and such other jurisdiction as the general assembly may confer in civil cases, and such criminal cases as may be prescribed by law, where the punishment is by fine only, not exceeding $100.” The present constitution, adopted in 1870, provides that the circuit courts shall have original jurisdiction of all causes in law and equity, and such appellate jurisdiction as may be provided by law. It also provides that there shall be elected in and for each county, one county judge; that county courts shall be courts of record and shall have original jurisdiction “in all matters of probate, settlement of estates of deceased persons, appointment of guardians and conservators, and settlements of their accounts, in' all matters relating to apprentices, and in proceedings for the collection of taxes and assessments, and such other jurisdiction as may be provided for by general law.” Hence, the constitution confers on the legislature a broad grant of power with respect to the jurisdiction of county courts. However, the jurisdiction which the legislature is permitted to grant to the county court, in addition to the specific jurisdiction directly given to that court in the Constitution, must be provided for by general law applicable to all county courts. In the case of Myers v. People, 67 Ill. 503, the validity of an act conferring jurisdiction on county courts was attacked. A section of the act provided that it should not apply “to counties having, by the last state or federal census, 100,000 population.” The Supreme Court pointed out that the act attempted to exclude Cook county from its provisions, and held that in attempting so to do, it violated the Constitution. Nevertheless, the act was sustained except as to the portion criticized. Section 26 of Article VI of the Constitution of 1870 provides that the recorder’s court of the city of Chicago shall be continued, and shall be called the criminal court of Cook county, and that the criminal court shall have jurisdiction of a circuit court, in all cases of criminal and quasi-criminal nature arising in the county of Cook, or that may be brought before said court pursuant to law. Section 177, ch. 37, Ill. Rev. Stat. 1939 (sec. 7 of the County Court Act [Jones Ill. Stats. Ann. 36.163]) provides that the county courts shall have concurrent jurisdiction with the circuit courts in all criminal offenses and misdemeanors where the punishment is not imprisonment in the penitentiary or death. As pointed out in the Myers case, the legislature, in granting jurisdiction to the county court, was required to do so by general law applying to all county courts in the State. Section 177 has been amended from time to time. The last time it was amended was in 1939. Section 2 of Division X of the Criminal Code, while providing that the criminal court of Cook county shall have exclusive original jurisdiction of all criminal offenses in the county of Cook, must be read in connection with section 7 of the County Court Act. Both of the acts were adopted at about the same time, and they complement one another. A consideration of the history of the circuit and county courts, the legislative enactments, and a study of the reported decisions, convinces us that the legislature did not intend to deprive the county court of Cook county of jurisdiction in criminal offenses and misdemeanors where the punishment is not imprisonment in the penitentiary or death, and at the same time to give such jurisdiction to all other county courts in Illinois. The adoption of the contrary view would not harmonize with the ruling in the Myers case. A reasonable. view is that the section providing that the criminal court of Cook county shall have exclusive original jurisdiction in all criminal offenses in the county of Cook, was adopted by the legislature to prevent a conflict between the criminal court of Cook county and the circuit and superior courts of Cook county concerning jurisdiction in criminal cases. Therefore, we are of the opinion that the county court of Cook county had jurisdiction of the subject matter in the instant case.

The second assignment of error is that the court should have sustained defendant’s challenge to the array of jurors. He asserts that prior to the voir dire examination of the veniremen, he interposed a challenge to the array on the ground that the court had not issued a venire for not less than twelve nor more than twenty-four competent jurors, and that the jurors were not summoned to the county court, but, in fact, were borrowed jurors who were summoned for service in the circuit court or superior court. We have carefully examined the record, and find that the defendant was tried with his codefendant, Scott E. Weinland. The latter filed a written challenge to the array, and the State’s Attorney invited him to offer proof in support of his challenge. No proof was offered and the court overruled Weinland’s motion. The agreed statement of .facts shows that counsel for the State and the defendant Weinland thereupon proceeded with the voir dire examination, and that the jurors were passed upon and accepted by the State and defense in panels of four. The court thereupon inquired if the jury were acceptable to the State and the defense, and no objection being made, the case proceeded to trial. At this point, the record discloses the following:

“Mr. McCaffrey: [Attorney for defendant Dickel-man] May I make an objection on the part of Dickel-man to the array of jurors ?
“The Court: Both sides have accepted this jury. The motion comes too late.
“Mr. Kinnally: [Assistant State’s Attorney] At the time of the motion, there was no proof offered on the challenge that he raised.” It is apparent that defendant Diekelman’s motion was made after both sides had completed the voir dire examination and had accepted the jury. In Gropp v. People, 67 Ill. 154, and Mueller v. Rebhan, 94 Ill. 142, it was held that an objection to the array is waived unless made before any individual jurors have been selected and called as jurors. In People v. Flannigan, 204 Ill. App. 548, 550, the court said:
“To have preserved the question for review, the challenge should have been made when the jury were called into the box and before the examination of the jurors on their voir dire had been entered upon.” Under the circumstances disclosed by the record, we are of the opinion that the defendant Diekelman waived his right to challenge the array.

The third point urged by defendant is that the court erred in overruling his motion to strike the testimony of witnesses called by the People for the purpose of showing that the sale of securities was not an isolated sale. Defendant maintains that the effect of such testimony was to divert the attention of the jury from the offense charged and to establish his guilt by showing he committed separate and distinct offenses. Evidence of sales to four other persons was admitted. Testimony of this character is admissible for the purpose of showing that the sale charged in the information was not of such kind as to make the securities fall within Class B of the Securities Act. Securities falling within the designation of Class B are known as exempted sales. The testimony was also admissible for the purpose of showing the defendant’s relationship to the issuer of the securities. (People v. Love, 310 Ill. 558; People v. Baldwin, 278 Ill. App. 327.)

The fourth point which defendant urges is that the court erred in overruling his motions for a directed verdict and in arrest of judgment. Under this point he first argues that the State failed to prove sales to “divers other persons whose names at the present time are unknown,” as charged in the third count of the information. It is well established that conviction on a general verdict will be sustained although some of the counts are faulty, if there be one good count in the indictment or information. (People v. Limeberry, 298 Ill. 355; People v. Matlock, 303 Ill. 399; People v. Munday, 204 Ill. App. 24.) The evidence establishes that Dickelman sold $67,000 worth of preorganization subscriptions to the securities of the Westcoast Minerals Co., Ltd.; that he never made any entries on the books of the trust showing these sales and never felt called upon to account for the funds, and that the sale of the subscriptions was a fraud. There was ample evidence to warrant the verdict of the jury as to all three counts. Under the fourth point defendant argues that the court erred in denying his motion to require the State to elect on which count the case was based. The crime charged was a misdemeanor, and the ruling on the motion was within the reasonable discretion of the trial judge. Defendant does not point out how he was prejudiced by the ruling. We are of the opinion that the court did not abuse his discretion. (Johnson v. People, 124 Ill. App. 213; People v. Bischoff, 238 Ill. App. 369; People v. Jacobson, 247 Ill. 394.)

Finally, defendant maintains that the State failed to prove that the securities sold to the Zavadils were issued to them by the Westcoast Minerals Co., Ltd., and were not personally owned securities of the defendant Dickelman, exempt under Class B of the Illinois Seen-rities Act (sec. 100, ck. 121½, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 13.05]). We assume that he alludes to the language which states that securities shall be considered in the exempted class if they constitute “the sale in good faith and with no intent to defraud, of any security by or on behalf of a vendor who is not an insurer, . . . ” The jury (by general verdict) found defendant to be an issuer of the securities as charged in the first count of the information. An examination of the transcript convinces us that there is ample evidence showing Dickelman to be an issuer within the meaning of the statute. The record shows that the sale alleged in the information was of the type within the inhibition of the Illinois Securities Act. It is plain that the defendant was engaged in a scheme to swindle honest citizens out of their hard earned savings.

For the reasons stated, the judgment of the county court of Cook county is affirmed.

Judgment affirmed.

Hebel, J., and Denis E. Sullivan, P. J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Moulding-Brownell Corporation v. E. C. Delfosse Construction Company et al. National Fraternal Society of the Deaf, Appellee, v. Grace Sherwood Trumbull et al., John A. Scrib-bins, Appellant.
    Gen. No. 40,952.

      Heard in the third division of this court for the first district at the October term, 1939.
    Opinion filed April 10, 1940.
    H. C. Rumbry and Edwin W. Burch, both of Chicago, for appellant.
    Joseph S. Grant, of Chicago, for appellee; Henry W. Kenoe, of Chicago, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

During the early part of 1933 Charles W. Trumbull and Grace Sherwood Trumbull, husband and wife, were the owners of certain real estate located at 2257 Silverton drive. This property was situated just west of the Illinois Central tracks at the 23rd street entrance of A Century of Progress. The property was subject to a first mortgage, held by the National Fraternal Society of the Deaf, a corporation. The owners entered into an agreement with the Fridstein Engineering Company for the construction of a restaurant building. After the completion of the building, the property was operated at a loss. In August, 1933, a bill to foreclose certain mechanics’ liens upon the real estate and improvements was filed. In October, 1933, a separate bill to foreclose the first mortgage was filed. The cases were consolidated. A decree was entered. On appeal, in the case of Moulding-Brownell Corp. v. E. C. Delfosse Const. Co., 291 Ill. App. 343, this court decided that all the lien claimants had agreed to waive their liens, except John A. Scribbins, surviving partner of Craves & Scribbins, who contracted for and provided the architectural work on the property. The opinion pointed out that the right to a lien by Scribbins was not contested, and the court affirmed that part of the decree which found that he was entitled to a lien for $5,200, together with interest at the rate of 5 per cent per annum from August 29, 1933, for the work which he had done. Accordingly, the decree was affirmed as to the foreclosure of the mortgage and as to the lien of Scribbins, and reversed as to the other lien claimants. When the case was redocketed in the circuit court a new decree was entered, which disallowed all of the lien claims except that of Scribbins; found that he had a mechanic’s lien for $5,200, and that the plaintiff, mortgagee, had a lien for its mortgage indebtedness of approximately $36,000 and interest. A sale was directed, which resulted in a bid of $40,000. The proceeds of the sale, after deductions for master’s fees and other costs in excess of $3,000) being insufficient to satisfy both liens, the cause was rereferred to a master for the purpose of determining the priorities of the parties in the proceeds of the sale and the proper distribution to be made. Defendant offered testimony before the master to establish the relative value of the land and of the improvements, and to determine the enhancement in value of the property caused by his services. The master determined that three-quarters of the proceeds of the sale was realized from the property as it was before the improvement, and that one-quarter was realized from the enhanced value of the property contributed by the improvement. Defendant testified that his lien was based upon a claim for architectural services, and that his fee was 6 per cent of the construction cost. Accordingly, the master determined that 6 per cent of the enhancement in value of the property was contributed by the services of the defendant, and the remaining 94 per cent was contributed by the other lien claimants. The master also determined that the other lieti claimants were paid in the manner they contracted for payment, and that “therefore, payment in such manner has the same effect for the purposes of the pending question as if payment in cash had been made by the equity owner; namely, to enhance the security of the mortgagee.” The master found that as to the enhancement in value traceable to the material and services of other claimants, plaintiff, as mortgagee, was entitled to be subro-gated, and that the defendant could establish priority only in that portion of the total enhancement in value contributed by his services alone, of 6 per cent of the entire enhancement, which is $600. Defendant Scrib-bins filed objections to the master’s report. He did not object to the finding of the master that “the other lien claimants were paid in the manner they contracted for payment, therefore, payment in such manner has tlm same effect as if payment in cash had beeii made by the equity owner, namely, to enhance the security of the mortgagee.” An order was entered by the chan eellor that the objections stand as exceptions. The court overruled the exceptions, and on June 15, 1939, entered a supplemental decree. Clauses 4 and 5 read:

“That all of the other lien claimants comprising approximately ninety-four per cent (94%) of the lienable services rendered and materials furnished have been paid in accordance with their contract with Charles W. Trumbull and Grace Sherwood Trumbull, owners of the said real estate; that the claim for lien of John A. Scribbins constitutes 6 per cent (6%) of the total improvements and that his service has therefore enhanced the value of the said property in the sum of Six Hundred ($600.00) Dollars; that as to the enhancement of value in the said premises caused by the services rendered and materials furnished of all other contractors and sub-contractors whose claims are, by this decree, found to have been paid in accordance with their contract, the plaintiff, National Fraternal Society of the Deaf, is entitled to be subrogated; and such increase in the value of the property has been caused by the said enhancement caused by the services and materials furnished by all the other contractors and sub-contractors, should be held to enhance the security of the National Fraternal Society of the Deaf, a corporation, plaintiff herein, as mortgagee;
“That since the total enhancement of the value of the said property is in the sum of Ten Thousand ($10,000.00) Dollars, Ninety-four Hundred ($9,400.00) Dollars of the said enhancement became additional security for the payment of the mortgage held by the plaintiff, National Fraternal Society of the Deaf, a corporation; that the balance of Six Hundred ($600.00) Dollars constitutes the only fund and portion of the proceeds of the foreclosure sale upon which the lien of the said John H. Scribbins, defendant and intervening petitioner, is entitled to priority.” The supplemental decree directed the distribution of the fund. The defendant Scribbins prosecutes this appeal from the supplemental decree.

The first criticism leveled at the supplemental decree is that the rights of the mortgagee and the lien claimant Scribbins, were fixed by the original decree, which was affirmed as to them, and that the chancellor had no right, as to them, to do more than re-enter the decree with all the provisions as to their respective rights unchanged. Plaintiff agrees that when a decree is affirmed, it should be followed by the trial court. It, however, insists that the chancellor did follow the decree and that the proceedings had were in accordance with the recognized procedure in such cases. The original decree found that the architect had a lien for $5,200, and interest. It is manifest, however, that neither the original decree nor the second decree could assure him that he would receive the amount found due him. How much he would ultimately receive, would depend on how much was realized on the sale, and a subsequent determination of the relative priorities between the mortgagee and the architect. It is obvious that this was the purpose of both decrees, as the court expressly reserved jurisdiction to ascertain and determine the respective values of the land and the improvements, for the purpose of directing proper distribution of the proceeds of the sale. We do not understand that defendant contends the original decree gave him a prior lien for the full amount of his claim without regard to a determination of the question of the enhancement of the property. We have carefully read the briefs and the opinion in the previous case, and are convinced that such opinion did not undertake to determine the priorities as between the architect and the mortgagee.

The next point, and the one on which defendant places chief reliance, is that the law gives a mechanic a lien for the amount due him and not for the value of labor or materials furnished, and that such lien is on all the premises. Under that point he declares that the liens of mechanics are prior liens on so much of the sale price of the premises as is attributable to the enhancement of the value of the premises, due to the improvement toward” which they furnished materials. Accordingly, the architect argues that he should be preferred to the value of the improvements erected on the premises and not limited to the proportionate share his lien bears to the entire value of the premises. Plaintiff, on the other hand, insists that a lien claimant is entitled to a priority over a mortgagee only to the extent that his labor or services enhanced the value of the property. He insists that when the owner of prop - erty has paid for the cost of an improvement, a mortgagee is entitled to be subrogated to the enhancement in value of the property traceable to that portion of the improvement for which the owner has paid, as against a lien claimant who has not been paid. In reply to the latter statement defendant challenges the assertion that the owner of the property paid for a portion of the improvement. The statement is taken from the finding of the master. There was no exception to such finding. Because he did not except before the chancellor, the architect cannot now voice an objection to the finding as to payment of part of the improvement by the owner. (Jewell v. Roch River Paper Co., 101 Ill. 57, 68; Marble v. Thomas, 178 Ill. 540; Dreger v. Boyer, 297 Ill. App. 581.)

Both parties emphasize the provisions of section 16 of the Mechanics’ Lien Act (sec. 16, ch. 82, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 74.16]) which reads •

“No incumbrance upon land, created before or after the making* of the contract under the provisions of this act, shall operate upon the building: erected, or materials furnished until a lien in favor of the persons having* done work or furnished material shall have been satisfied, and upon questions arising between incum-brancers and lien creditors, all previous incumbrances shall be -preferred to the extent of the value of the land at the time of making of the contract, and the lien creditor shall be preferred to the value of the improvements erected on said premises, and the court shall ascertain by jury or otherwise, as the case may require, what proportion of the proceeds of any sale shall be paid to the several parties in interest. All incum-brances, whether by mortgage, judgment or otherwise, charged and shown to be fraudulent, in respect to creditors, may be set aside by the court, and the premises freed and discharged from such fraudulent incum-brance.” As between the parties to the contract, the contract price establishes the value of the improvements. As against the mortgagee and all other third persons, the reasonable value of the improvements must be proven to establish the enhancement. While the lien attaches as of the date of the contract, the priorities as between the lienors and the mortgagee are determined under the provisions of section 16. When the proceeds of the sale are substituted for the land and building, both the mortgagee and the lien claimants are entitled to the same proportionate interest in the proceeds that they had in the property before it was sold. Enhancement is the increase in market value of the property by reason of the improvement covered by the claim for lien at the time of the making of the improvement, and is not affected by the cost of labor or material, the original amount of the claim, or the balance due thereupon. Usually, in a decree the chancellor divides the proceeds of the sale of property into two funds, over one of which the mortgagees have priority, and over one of which the lienors have priority. These two funds bear the same ratio to each other as do the value of the land and whatever was on it immediately prior to the installation of the improvement and the value of the enhancement created by the improvement under the contract.

Defendant places emphasis on the opinion in Mitchell v. Robinovitz, 272 Ill. App. 414. Plaintiff relies on Clark v. Moore, 64 Ill. 273; Croskey v. Northwestern Mfg. Co., 48 Ill. 481; and Southern Illinois Con tracting Co. v. Launtz, 169 Ill. App. 87.) The Clark case involved a situation somewhat analogous to the case at bar. The court said, p. 282:

“In the case of North Presbyterian Church of Chicago v. Jevne, 32 Ill. 214, it was held that a prior mortgagee had the first lien on the land as it was unimproved, and the mechanic or material-man had a first lien on the building, and that each should be satisfied out of the fund upon which he had the prior lien; that if either fund was more than sufficient to satisfy the prior lien thereon, and the other was insufficient to pay the prior lien on it, then the latter should be satisfied from the surplus remaining of the other fund. The same rule was adhered to in the cases of Croskey v. Northwestern Man. Co., 48 Ill. 481, and Howett v. Selby, 54 Ill. 151; but where, as in this case, there is a large proportion of the enhanced value of the property produced by the owner paying for labor and material furnished by others than the parties to the suit, the question arises whether the mechanics and material-men shall have it appropriated to the payment of their liens, or shall it be applied to the prior incumbrances, or shall it be treated as a fund in which both may participate pro rata. In such a case, the enhanced value produced by the payment of money by the owner, whilst the work was progressing, should be applied to the satisfaction of the mortgages on the property; and if any portion of the fund thus created shall remain, to be applied to the satisfaction of the liens for labor and materials. It has always been recognized the true rule to hold all improvements placed by the mortgagor on the premises as being embraced in and subject to the mortgage. We can not suppose that they were intended, when made, to be for the benefit of other lien holders. They have their lien on the enhanced value they have given to the property, but have advanced neither money nor materials for which the owner has paid; and the subsequent mortgages may have been given to secure the very money paid by the owner for the labor and materials.” We have carefully considered the arguments of the parties and the cases that have been cited, and are convinced that the purpose of section 16 is to protect the lien claimant to the extent of the increased value of the premises by reason of his improvements. It would be inequitable to allow recovery out of part of the property not benefited by the improvement. In the instant case, had the other contractors not been paid and had the liens in their favor been allowed, the lien of the architect would have been limited in priority to 6 per cent of the total enhancement. The fact that the other contractors have been paid neither aids nor injures him. The priority of his lien must be bottomed on its own strength as a contributor to the enhanced value of the property. The evidence shows that the total enhancement by defendant’s services contributed 6 per cent.

Finally, the architect urges that the court should have found that the enhanced value by virtue ofi ¡the services and material of the lien claimants, was from $15,000 to $19,300, instead of $10,000, which he did find. After an examination of the testimony of the experts, we are of the opinion that the court was right in decid ing that three-quarters of the sale price, or $30,000, represented that portion of the proceeds realized from the original value of the property, and that one-quarter, or $10,000, represented that portion of the proceeds realized from the enhancement of the value of the property, resulting from the improvement.

We are of the opinion that the formula adopted by the chancellor for the apportionment of the fund between the mortgagee and the architect was in accordance with the law. Therefore, the decree of the circuit court of Cook county is affirmed.

Decree affirmed.

Denis E. Sullivan, P. J., and Hebel, J., concur.


author: Mr. Justice Burke delivered

text:
    Milton H. Callner, Appellant, v. Samuel Greenberg et al., Appellees.
    Gen. No. 41,072.
    Heard in the third division of this court for the first district at the June term, 1939.
    Opinion filed April 10, 1940.
    Levisohn & Levisohn, of Chicago, for appellant.
    Morton C. Chesler, Morris L. Kilmnick and B. P. Traynor, all of Chicago, for appellees.
   Mr. Justice Burke delivered

the opinion of the court.

This case was appealed to the Supreme Court on the basis that a freehold was involved. That court transferred the case to this court, ruling that a freehold was not directly involved. (Callner v. Greenberg, 372 Ill. 176.)

Milton H. Callner filed an amended complaint to redeem from a sale of certain premises held on October 18, 1933, pursuant to a decree of foreclosure, and for other relief. The amended complaint alleges that Call-ner, a second mortgagee, was joined by the bank (which, as trustee, instituted the foreclosure proceeding), not by his proper name but under the description of “Unknown Owners”; that his address and the fact that he was the holder of junior trust deed notes were both known to the officers and agents of the trustee bank, and the attempted service of notice on him by publication under the designation of an unknown owner was fraudulent; that an order was entered defaulting unknown owners, a decree of sale entered and the premises sold; that Callner did not learn of these proceedings nor of the sale until August 15, 1937, and was prevented from redeeming, although he was ready, able and willing to have done so. The amount of the indebtedness found to be due the complainant foreclosing the first true deed was $51,235.99. The premises were sold for $8,500. Certain facts were alleged in support of the charge of fraud with respect to the failure to give Callner proper notice and the plaintiff offered to pay, and tendered in open court, $8,500 with interest from October 18, 1933, the date of the sale pursuant to the foreclosure decree. The prayer of the complaint was that the master in chancery be directed to execute an instrument evidencing the redemption and to register the same in the office of the registrar of titles of Cook county; that the certificate of sale issued by the master in chancery in the foreclosure proceeding be set aside, vacated and delivered to the master to be canceled, and for the foreclosure of the junior trust deed, and for general relief. The amount of the indebtedness under the junior trust deed was about $5,000, which it is alleged remains unpaid. Three of the defendants moved to strike the amended complaint and to dismiss the cause for want of equity. The court allowed the motion and an order was accordingly entered, to reverse which this appeal is prosecuted.

Plaintiff insists that as he was a defendant in the foreclosure suit, he had a right to redeem from the sale in that suit on October 18, 1933, by paying the sum at which the premises were sold and interest thereon, under the provisions of sec. 18, eh. 77, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 107.168]. He asserts that he was deprived of his statutory right to redeem within 12 months from the date of sale by the fraudulent conduct of the defendants in falsely describing him as “Unknown Owners,” and by making him defendant under that name, although they knew plaintiff to be the owner of the second mortgage notes, and knew his address; that consequently no summons was served on him and he had no knowledge of the foreclosure suit until a short time prior to the filing of the instant complaint, and until after the expiration of the statutory period of redemption. Section 18 provides that “Any defendant . . . may . . . within twelve months from said sale, redeem the real estate so sold by paying to the purchaser thereof, . . . or to the sheriff or master in chancery, . . . the sum of money for which the premises were sold or bid off, with interest thereon at the rate of six per centum per annum from the time of such sale, whereupon such sale and certificate shall be null and void. ’ ’ He argues that as he was the owner and holder of the second mortgage papers he was a defendant not by his proper name, but by the name and description of “Unknown Owners,” and that by not making him a party under his proper name and serving him with summons, the defendants committed a fraud and thereby prevented him from exercising his statutory right of redemption by paying- the amount for which the property was sold under the first mortgage, plus interest, on or before October 18, 1934.

Defendants’ motion to dismiss admits the allegations that are well pleaded. In our opinion, there are sufficient allegations of fact in the complaint, as amended, to show that the defendants herein described the owner of the second mortgage papers as “unknown owners” when they knew at the time that the plaintiff was the holder and owner thereof. The opinion in the case of Graham v. O’Gonnor, 350 Ill. 36, contains an excellent discussion of the requisites for obtaining jurisdiction over “unknown owners.” It points out that an honest and well-directed effort must be made to ascertain the names and addresses of unknown parties, and that the inquiry must be as full as the circumstances of the particular situation will permit. The opinion also states that “it necessarily follows that the court did not acquire jurisdiction over the complainants by constructive service based upon false affidavits. ” Defendants state that the complaint does not contain sufficient allegations of fact to show fraud. They maintain, however, that even if the complaint contains sufficient allegations to show fraud, there is no authority for the proposition advanced by plaintiff that a redemptioner may be permitted to effect a statutory redemption long after the expiration of the statutory period of redemption simply because he was wrongfully made a party to a foreclosure suit as an “Unknown Owner.” Defendants further argue that the effect of the alleged fraud is to vitiate the entire first mortgage proceedings so far as the plaintiff herein is concerned, leaving his rights unaffected by that foreclosure suit, and the decree and sale thereunder, just as if the foreclosure proceedings had not taken place, and that under the circumstances the right to redeem from the foreclosure sale under the statute is inapplicable, and that plaintiff’s only and proper remedy is to redeem in equity from the mortgage debt. We agree with the contention of defendants that under the authority of Graham v. O’Connor, supra, and assuming the allegations of plaintiff to be true, that all proceedings had in the foreclosure action so far as the plaintiff herein is concerned, are null and void, and do not affect the right of the plaintiff herein to redeem in equity. Plaintiff herein, not being bound by the proceedings in the foreclosure case, stands in the same position as if he had not been made a party to that case. As pointed out in Rodman v. Quick, 211 Ill. 546:

“The distinction must be kept in mind between a statutory redemption, which is from the sale and not from the mortgage, and the equitable redemption established by the courts, in which the redemption is from the mortgage and not from any sale, and out of which springs the rule that the redemptor must do equity and pay all that is due under the mortgage, which may exceed the amount of the sale, and which may, in some cases, include not only the debt and interest, but taxes, repairs and betterments made and paid by a mortgagee who has entered for condition broken, . . . and in reduction of which such mortgagee in possession may, in most cases, be required to account for rents and profits of the premises actually received or that could have been received by the exercise of reasonable care and diligence.” In the case of Walker v. Warner, 179 Ill. 16, where the grantee of the mortgaged premises was not made a party to the foreclosure suit, the court said (p. 24): “Although the grantee of the mortgagor, who is not a party, is not affected, yet his interest, which remains the same, is only a right to redeem. By the foreclosure and sale and the master’s deed thereunder, the legal title becomes vested in the grantee in such deed, and leaves nothing in the mortgagor, or his grantees, who are not parties to the proceeding, except the right to redeem in equity. Inasmuch as the interest of the grantee of the mortgagor, who is not made a party to the foreclosure, is merely a right of redemption, the right which he has is an equitable one, and must be asserted in a court of equity.”

Defendants maintain that as a condition precedent to any relief, plaintiff must first offer to redeem in equity. Plaintiff herein declares that he is not required, as a condition to relief, to offer to redeem from the entire first mortgage, and that to do so would enable defendants to profit by their own fraud. He also states that he is only required to redeem by tendering the statutory amount, which he does in his amended complaint. He further states that if he has any right to redeem, his failure to offer a particular amount does not warrant a dismissal for want of equity; that the proper amount can be determined on the final hearing, and that if any part of plaintiff’s complaint states a cause of action it is error to dismiss it, as the complaint contains a prayer for general relief. A careful examination of the record and briefs filed by plaintiff convinces us that plaintiff’s case purports to be grounded on a statutory redemption by paying the amount for which the property was sold, plus 6 per cent interest from the date of the sale. Plaintiff herein insists on a statutory right of redemption. The first mortgage indebtedness was $51,235.99. Plaintiff offers to redeem from the foreclosure sale by tendering the sum of $8,500, with interest at 6 per cent from October 18,1933. While the plaintiff seeks to redeem under the statute, and not in equity, yet he does come into equity. When he comes into equity he must do equity. Although he desires to redeem according to the statute, nevertheless, in coming into equity, he is, in fact, seeking to redeem in equity. As he plainly indicates that he desires relief only if he is permitted to redeem by paying the $8,500 for which the property was sold, plus interest, he cannot maintain his complaint in equity, and the court was right in dismissing it. Therefore, the order of the circuit court of Cook county is affirmed.

Order affirmed.

Denis E. Sullivan, P. J., and Hebel, J., concur.


text:
    Bernice Grossman, Appellee, v. Herman Grossman, Appellant.
    Gen. No. 41,101.
    Heard in the third division of this court for the first district at the February term, 1940.
    Opinion filed April 10, 1940.

      Samuel Shamberg and Russell J. Topper, both of Chicago, for appellant; Russell J. Topper, of counsel.
    Turner & Turner, of Chicago, for appellee; Maurice Turner, of counsel.
   Mr. Justice Burke

delivered the opinion of the court. On October 7, 1939, plaintiff filed her complaint in the superior court, of Cook county and therein represented that the parties were married on July 28, 1938; that she conducted herself as a good and dutiful wife; that on March 3, 1939, without any provocation or justification, defendant quit and abandoned their home; that he has since failed and refused to resume marital relations; that he abandoned her without just cause or provocation; that she was living separate and apart from him without any fault on her part; that at the time of their marriage she was possessed of a sum in excess of $8,000; that she advanced in excess of $8,000 to him for the purpose of engaging in business; that the same represented her entire assets, and was advanced to him at various times and in various amounts from the day of their marriage until the time when he left her; that at the various times when the advances were made, he agreed to repay her, and informed her that she would share in the proceeds of the business or businesses to be engaged in by him, or in the proceeds of any enterprise in which he might engage; that he failed and refused to account to her for any proceeds, or to divulge to her the nature of any business he entered into; that he refused to pay back to her any of the funds so advanced; that she is informed and believes that he has in his possession and controls most of the moneys advanced to him, and that L. B. Harris and L. B. Harris & Company, a corporation, are indebted to him, or are holding for his use and benefit, certain chattels and other property arising out of the use made by,him of the funds advanced by her; that certain other personal property is kept by him in a safety box at the American Trust and Safe Deposit Company, and that he has funds on deposit with the Personal Loan & Savings Bank, a corporation, and Harris Trust & Savings Bank; that plaintiff has no other assets or property other than the funds she advanced to him; that although she is gainfully employed, she is partially dependent upon the funds advanced to him; that an injunction should issue without notice and without bond, directed to the parties named, restraining each of them from making any payment to him, or delivering to him any property, real, personal or mixed, which any of them may be holding for him, until the further order of the court, and denying him access to the safety deposit box. She prayed that the court determine the indebtedness of the defendant to her; that he be required to account to her for any moneys arising out of the operation of any business undertaken by him; that he be required to pay her any sum found to be due to her; that he be required to make suitable provision for her separate maintenance and suitable allowances for her necessary expenses in conducting the suit; that an injunction issue, and that she have such other and further relief as may be meet. The complaint is verified. On October 9, 1939, [Judge Nelson presiding] the court granted a temporary injunction, restraining the parties named from making any payments, or delivering to defendant any property in their charge, custody or control, belonging to him, and restraining the safety vault company from permitting him to have access to any box, and directing that the injunction issue without notice and without bond. On October 20, 1939, [Judge Bolton presiding] the court granted a further restraining order, which forbade defendant from selling, mortgaging, exchanging, conveying, or otherwise disposing of any and all property of any sort or description belonging to him, or in which he had any interest, in his possession or in the possession of any person, firm or corporation, until the further order of the court, or from having access to any safety deposit box standing in his name, or to which he has the right of entry, until the further order of the .court. The second restraining order was also directed to issue without bond. On October 25, 1939, defendant, by his attorney, served notice on the attorneys for plaintiff that he would appear on the following day and move for the granting of such relief as was prayed for in the written motion, a copy of which was attached. On the following day the motion was presented and filed in the court. It is entitled, “Motion to dissolve injunctions and strike bill of complaint.” This written motion moved for the entry of an order striking the complaint, vacating the orders for the writs of injunction, and dissolving the injunctions. The first three paragraphs of the motion merely recite the history of the litigation up to that time. The fourth paragraph calls attention to the fact that the two orders for the injunctions showed affirmatively that the court was basing its action solely on the allegations of the verified complaint. The fifth paragraph of the motion called attention to an order entered by the executive committee of the court, which order established two calendars, from which divorce and separate maintenance cases were to be called. Defendant asserts that the executive committee order assigned the instant case to Judge John Bolton. Paragraph six makes the point that Judge Oscar Nelson, who granted the first injunction, was without jurisdiction so to do, as the case was not assigned to him. Paragraphs 7 to 12 of the motion are devoted to an attack on the sufficiency of the complaint. In brief, these paragraphs charge that there was a misjoinder of causes of action; that the court was without jurisdiction to decree any part of the relief sought; that the complaint in separate maintenance is insufficient in law in that the same fails to charge that plaintiff is in need of support and maintenance, and that it is insufficient in law because it affirmatively shows that she is engaged in gainful employment. Defendant supported his motion with an affidavit in which he states that his wife is regularly employed, and that she earns approximately $300 a month; that he was not at that time engaged in any steady employment; that he did not own or operate any business or enterprise, and that he had an income of $100 a month, derived from the performance of odd jobs and the sale of real estate. On October 26, 1939, defendant presented his motion to vacate and dissolve, and asked for an immediate disposition of the motion. The court did not comply with the request of the defendant for an immediate disposition of the motion, but continued the hearing on the motion to November 24,1939. On October 26, 1939, counsel for defendant in an oral argument in support of his motion to dissolve the injunctions, stated that in a separate maintenance proceeding the court is without jurisdiction to adjudicate any property rights. The defendant appeals from the interlocutory order granting the temporary injunctions under the provisions of rule 31 of the Buies of Practice and Procedure adopted by the Supreme Court. Under that rule, where an interlocutory order is entered on an ex parte application, the party proposing to take an appeal must first move to vacate the order in the trial court. Having so moved, he may apeal if the motion is denied, or if the court does not act thereon within seven days after its presentation. If he appeals on the basis that the court did not act within seven days from the presentation of the motion to vacate, the 30 days allowed for taking an appeal and filing the record in this court begins to run from the seventh day after the presentation of such motion.

The first point argued by defendant is that section 3 of the Injunction Act (sec. 3, ch. 69, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 109.351]) requires that notice of the time and place of the application for an injunction shall be given to the defendants to be affected thereby, or such of them as can conveniently be served, unless it shall appear, from the complaint or .affidavit accompanying the same, that the rights of the plaintiff will be unduly prejudiced if the injunction is not issued immediately or without notice. The apparent purpose of requiring a notice is to give defendants an opportunity to show that the injunction should not issue. In Brin v. Craig, 135 Ill. App. 301, 306, this court said:

“This court has spoken many times in no uncertain voice in condemnation of the practice of granting an injunction without notice unless it is made clearly and indisputably to appear from facts recited and verified, that the rights of a complainant will be unduly prejudiced unless the same be granted without notice. No presumptions are to be indulged in favor of action without notice, but parties must, on facts stated and sworn to, bring themselves within the exception of the statute before being entitled to an injunction without notice. Failing so to do, an injunction granted will be held to be improvident and dissolved.” (See also Thulin v. National Ice & Fuel Corp., 293 Ill. App. 155.) It is obvious that neither the complaint in the instant case nor the affidavit in support of it, sets out any facts which would warrant the court in granting an injunction without notice. The alleged desertion took place on March 3, 1939. The complaint was not filed until October 7, 1939, about seven months thereafter. The complaint indicates that the defendant remained in Chicago all of this time. While it sets up that she advanced him in excess of $8,000, it does not charge him with any misrepresentation or fraud. The inference is that he was to enter some business in which he would use the funds so advanced by her, and that she would share in the profits of the business. The complaint asserts that he still has in-his possession most of the moneys advanced to him. It does not set out any facts to indicate that he intends to leave the jurisdiction, or to unlawfully conceal or dispose of the funds or Ms assets. The complaint asks that an injunction issue without notice and without bond. The complaint is barren of any sufficient allegations that would warrant the court in granting an injunction without notice. The affidavit does not add anything to the allegations of the complaint.

The second point urged by defendant is that the filing of a sufficient bond is an essential condition precedent to the issuance of an injunction in the absence of any showing in the complaint or affidavit that there is good cause for excusing bond. A perusal of the complaint and affidavit shows that plaintiff made no attempt to show any cause for issuing the injunctions without bond. While the matter of allowing the issuance of an injunction without the giving of a bond rests largely in the sound discretion of the court, nevertheless, a sufficient showing must be made on which to base the discretion. (Peck v. Peck, 214 Ill. App. 41, 43.)

In reply to the argument of defendant that the injunctional orders should be reversed because granted without notice, plaintiff insists that the motion to dissolve the injunctions waived any objections to their issuance without notice. It will be observed that the motion of defendant was to vacate and dissolve the injunctions. A like contention was made in Lange v. Massachusetts Mut. Life Ins. Co., 273 Ill. App. 356, where this court said, page 361: “Counsel for complainant calls this court’s attention to a great many cases in which the Supreme Court and Appellate Court have held that the motion to dissolve an injunction without notice waives the point that no notice was given; that such motion is in the nature of a demurrer to the bill. We have examined all the cases cited by both counsel, together with many others, and we find that in each case where there has been a holding that the motion to dissolve waives the point that the injunction was issued without notice, the motion to dissolve was predicated upon the showing made on the face of the bill, and not on the fact that no notice had been served.” Prior to the adoption of rule 31 by the Supreme Court, it was a common practice for defendants in cases where appealable interlocutory orders were entered ex parte, to file an appeal in this court without giving the trial court an opportunity to pass on the points they were raising. Buie 31 requires a defendant to present his motion to the trial court before he is permitted to appeal. If the trial court rules adversely, or fails to rule within seven days after the motion is presented, then he may appeal. In the instant case, the trial court did not rule within seven days from the time the motion was presented. Counsel for plaintiff asserts that the reason why the trial court did not decide the motion within seven days was because the court was occupied with other litigation. Buie 31 permits an appeal where the motion is not decided within seven days, and does not contain an exception to the effect that the appeal may not be prosecuted if the press of litigation be so great that the court cannot rule on the motion." Clearly, therefore, the defendant had a right to appeal when the court did not rule on his motion within seven days. Counsel for defendant maintains that to hold that when a defendant, in compliance with rule 31, moves to vacate or to dissolve an order for a temporary injunction which was issued without notice he thereby waives the point, would be tantamount to a judicial repeal of the section of the statute requiring notice. We agree with the opinion in Lange v. Massachusetts Mut. Life Ins. Co., supra, that where a defendant moves to dissolve or to vacate an order for an injunction issued without notice, he does not waive the point if it is raised at the time he makes the motion. Obviously, if a defendant does not include in his motion the point that the injunction was issued without notice, he thereby waives that point.

In the forepart of this opinion we gave a summary of the points made by the defendant in his written motion to dissolve and vacate the orders for the issuance of the temporary injunctions, which motion also sought to strike the complaint. The written motion does not make any point of the fact that the two injunctional orders were issued without notice, nor does it make any point of the fact that the court waived the giving of a bond. The first point in the written motion relates to the contention that Judge Nelson heard one of the motions, when the case was properly assigned to Judge Bolton. That point was abandoned because it has not been raised or urged in this court. The written motion also attacks the sufficiency of the complaint in that it maintains the complaint is multifarious, substantially insufficient in law and because plaintiff affirmatively shows that she is engaged in gainful employment. Defendant, in serving notice that he would present the motion, and in presenting the motion, and the court in acting thereon, was passing on the written motion. We assume that the written motion contained all of the points on which the defendant relied. Inasmuch as the written motion does not raise any objection to the issuance of the temporary injunctions without notice, or without requiring a bond, defendant may not now object on such grounds.

The third point urged by defendant is that the complaint must state ultimate facts which at least give rise to the probability that plaintiff is entitled to the relief before an injunction thereon will issue. It cannot be doubted that plaintiff has a right to an accounting from defendant for the sum of more than $8,000, which she alleges she advanced to him. In Glennon v. Glennon, 299 Ill. App. 13, 19 N. E. (2d) 412, this court held that under the liberal provisions of the Civil Practice Act and the rules adopted by the Supreme Court, a wife or husband who seeks separate maintenance may have her or his property rights adjudicated in the same action. When necessary, the complaint may aver separate actions in equity and law, and may state the facts in the alternative. The court may, in its discretion, order separate trials of any cause of action if they cannot be conveniently disposed of with the other issues in the case, and may transfer any cause of action from the law to the chancery docket, or vice versa. Clearly, the complaint gave the court jurisdiction of the subject matter.

Finally, defendant argues that the court was without authority to grant an injunction restraining the husband from selling or disposing of his personal property, except in the ordinary course of business. It is unnecessary to pass on that point because an examination of the written motion presented by the defendant does not show that it was raised before the chancellor.

For the reasons stated, the injunctional orders entered by the superior court of Cook county are affirmed.

Orders affirmed.

Hebel, J., concurs.

Denis E. Sullivan, P. J., dissenting: I cannot agree with my colleagues as to the conclusion reached in this opinion.


author: Mr. Justice Hebbl

text:
    Ernest E. Freeman and Lommen D. Eley, Administrator De Bonis Non with the Will Annexed of the Estate of Walter W. Freeman, Deceased, Appel-lees, v. Equitable Life Assurance Society of the United States, Appellee. Mary Freeman et al., Appellants.
    Gen. No. 40,933.
    Heard in the third division of this court for the first district at the October term, 1939.
    Opinion filed April 10, 1940.
    Frederick A. Brown, Ross Langdon and Chas. O. Rundall, all of Chicago, for appellants; Daniel F. Kemp, of Chicago, of counsel.
    Leonard & Leonard, of Chicago, for certain appellee; Gordon McLeish Leonard, of counsel.

      Dickinson, Sprowl, Norville & James, of Chicago, for certain other appellee; George F. James and Edward Wendrow, of Chicago, of counsel.
   Mr. Justice Hebbl

delievered the opinion of the court.

This is an appeal by the defendants from a decree of the superior court entered in a suit in equity holding that the. plaintiff Ernest E. Freeman is entitled to the proceeds of $30,000 of the life insurance on the life of plaintiff’s brother, Walter W. Freeman, and against the widow and children of the deceased, to whom the policies were payable, and the Equitable Life Assurance Society of the United States. This cause was referred to a master to hear evidence and report his conclusions of fact, but not of law.

The amended bill of complaint charges that Walter W. Freeman, since deceased, entered into a contract with his brother, Ernest E. Freeman, which contract is set out in the complaint and shows that a syndicate was formed consisting of Walter W. Freeman, Ernest E. Freeman and others for the purchase of $573,840 of Chicago Street Assessment Bonds; that the plaintiff Ernest E. Freeman was to contribute $30,000 on April 15,1936. The agreement further provided that Ernest E. Freeman shall be secured by Walter W. Freeman “against loss of his contribution of $30,000 or any part thereof. The said Walter W. Freeman hereby under^ takes and agrees to provide said Ernest E. Freeman with life insurance on the life of said Walter W. Freeman in life insurance companies satisfactory to said Ernest E. Freeman in the sum of $30,000, the policy or policies . . . to be delivered to Ernest E. Freeman and to be so written or endorsed as to make the same payable to Ernest E. Freeman in the event of the death of said Walter W. Freeman.”

Plaintiff’s amended complaint recites the existence of certain life insurance policies and specifically policies aggregating $30,000 issued by the Equitable Life Assurance Company of the United States; that to secure plaintiff the return of his contribution toward a joint venture, Walter W. Freeman promised to assign and deliver “certain of the aforementioned policies of life insurance upon the life of the said Walter W. Freeman in the amount of $30,000 to said plaintiff.” The amended complaint further recites the contribution of $30,000 and the failure of Walter W. Freeman to deliver the insurance. .

The amended complaint prayed (1) that answer be required; (2) that Equitable Life Assurance Society of the United States be enjoined from paying out moneys under its policies; (3) for specific performance of the contract; (4) for the declaration, establishment and foreclosure of an equitable lien upon the policies of life insurance to the extent of $30,000; (5) for a money decree against Equitable Life Assurance Society in the sum of $30,000; (6) for a money decree against the widow and children to the extent of $30,000 with costs; (7) that the court impose a constructive trust upon the policies of insurance or the proceeds; (8) for an injunction restraining the widow and children from dissipating any of the funds received from life insurance; and (9) for general relief.

From the decree it appears that the court (1) overruled the exceptions of defendants to the master’s report and sustaining exceptions of plaintiffs to the master’s report;

(2) Ordering that the defendant Mary E. Freeman surrender to the Equitable Life Assurance Society of the United States for cancellation within 25 days from the entry of the order, certificates of deposit numbers 21175 and 21176; that the defendant Walter W. Freeman, Jr., surrender to the Equitable Life Assurance Company within 25 days from the entry of this order certificate number 21177 and that the defendant Marilyn Joan Freeman within 25 days from the date of entry of order surrender to said company certificate number 21178;

(3) That Equitable Life Assurance Company of the United States pay to Ernest E. Freeman within 25 days the money now in its hands held for Mary Freeman, being deposit number 21175 in amount of $3,347.86 plus interest at 3 per cent per annum from February 13, 1938 until paid; deposit 21176 in the amount of $5,895.25 plus interest at 3 per cent per annum from February 13, 1938 until paid; and the funds held by said company as deposits 21177 and 21178 payable to Walter W. Freeman, Jr. and Marilyn Joan Freeman, each in the amount of $5',895.25 plus interest at 3 per cent per annum from February 13, 1938 until paid;

(4) Ordering said Mary E. Freeman to pay to Ernest E. Freeman, plaintiff, the sum of $9,573.15 with the costs of this action which are taxed against said defendant Mary E. Freeman and plaintiff to have execution therefor;

(5) That after compliance by the defendants with the terms of the foregoing decree the plaintiff, Ernest E. Freeman, is ordered to .pay to Lommen D. Eley as administrator de bonis non cum testamento annexo, coplaintiff, all sums that may hereafter be paid to him as a return of capital under the contract attached as exhibit A to the amended complaint filed herein.

The plaintiff, Ernest E. Freeman, was the brother of Walter W. Freeman, who was experienced in dealing in special assessment bonds. Walter W. Freeman invited plaintiff to participate in a proposed transaction to the extent of $30,000, which invitation he accepted, and gave Walter W. Freeman the $30,000. After the money had been delivered Walter W. Freeman concluded not to undertake the transaction originally contemplated, but proposed a wholly different transaction which would involve other participants. To this new venture plaintiff demurred because it might last longer than he wished to risk his capital, whereupon Walter W. Freeman volunteered to secure the return of plaintiff’s investment by insurance on Walter W. Freeman’s life. Plaintiff acquiesced and a written agreement was drawn and executed on May 21, 1936. In that contract the name of Charles T. Eothermel appears, and for some reason, the agreement was rewritten to substitute the name of Louise J. Eothermel for the name of Charles T. Eothermel, and the agreement was re-executed on July 1, 1936.

In paragraph 2, Walter W. Freeman agreed to provide Ernest E. Freeman with life insurance on his life in insurance companies satisfactory to Ernest E. Freeman, “the policy or policies representing said insurance to be delivered to said Ernest E. Freeman, and to be so written or endorsed as to make the sums payable thereon” to Ernest E. Freeman or his representatives.

Paragraph 7 of the contract recites that the life insurance policies, “hereinafter mentioned” are listed on an exhibit attached, bearing the signatures of both parties. Exhibit “A” was obviously intended to list the insurance policies referred to in the agreement, but no policies were ever listed, and the defendants call attention to the fact that it will be observed that there is no specific reference in the contract either to exist-' ing policies or to new insurance, other than implied in the phrase last above quoted, and urge that the furnishing of $30,000 of new insurance in companies satisfactory to Ernest E. Freeman would have constituted full performance of the contract in this respect. It is further urged by the defendants that on the other hand, the indorsement of $30,000 of existing insurance in companies satisfactory to Ernest E. Freeman would have been equally complete compliance with Walter W. Freeman’s covenant. The phrase “so written or endorsed” gave Walter W. Freeman the unquestioned right to obtain new insurance or to indorse old insurance, and so long as written by a company acceptable to Ernest E. Freeman, no complaint could be made by the latter.

In discussing the questions involved in this litigation it is well to have in mind the facts, and it appears, as we have indicated, that Ernest E. Freeman was the brother of Walter W. Freeman; that in the early part of April, 1936, a syndicate was formed consisting of Walter W. Freeman, Ernest E. Freeman, Louise J. Bothermel, and A. T. Galt, to purchase special assessment bonds of the city of Chicago. Walter W. Freeman was to, and did, contribute $10,000, and was to manage the syndicate without compensation, other than his profits. The Bothermels contributed $35,000, and Ernest Freeman $30,000, and A..T. Galt was to, and did with Walter W. Freeman sign a note with the Continental Bank for certain moneys necessary for the syndicate. The syndicate purchased bonds of the face value of $573,840 for $286,211.24, using the contributions above mentioned of $75,000, and borrowed the balance, $211,211 from the Continental Bank, the note being signed as above mentioned, -with the bonds as collateral security.

Of the bonds $123,845 were collected or sold, out of which sum $101,000 was paid on the loan with the Continental Bank, reducing the loan to $110,000.

The profits of the syndicate were to be divided as follows: Walter W. Freeman, 3/12ths; Ernest E. Freeman, 2/12ths; Louise J. Bothermel, 3/12ths; and Arthur T. Galt, 4/12ths. No net profits were to be divided until the entire amounts contributed by the syndicate members were paid, as well as the debt to the Continental Bank, and expenses of the syndicate.

A signed agreement was entered into between Walter W. Freeman and Ernest E. Freeman on May 21, 1936, and changed slightly, dated July 1, 1936, the changes having no reference to the issues involved, reciting that Walter was to have written or indorsed an insurance policy or policies on the life of Walter W. Freeman in the sum of $30,000 to protect Ernest E. Freeman on his capital investment. It is stated in both agreements that a list of the policies was attached thereto as exhibit “A,” signed by the parties. No list of the policies, however, was ever attached to either agreement or signed. The syndicate was apparently a success, $101,000 was paid to the Continental Bank on the note, resulting from the sale of $123,845 face value of the bonds. It is probable that the bonds were sold practically at par, as there was undoubtedly expense money taken out of the sale. Ernest E. Freeman received $1,300 out of the sale of some coupons in cash, and $4,600, upon both of which he returned in his income tax return as profit, and paid income tax thereon. He says, however, that the $4,600 was not cash, but a “bookkeeping entry. ’’ It was, however, sufficiently tangible for Ernest E. Freeman to pay an income tax on, but not sufficiently tangible for him to deduct from the $30,000. It does not appear that the chancellor required him to deduct either sum, but did require that the widow and the children should pay him the full $30,000.

Walter W. Freeman at the time the syndicate was formed had contracts of life insurance totalling $85,000. He had policies for $15,000 and $20,000 with the Mutual Trust Life Insurance Company, two policies of $10,000 each with the Travelers ’ Insurance Company and two policies with the Equitable Life Assurance Society of the United States, one in the amount of $25,000 and one in the amount of $5,000. Against the latter two policies he had loans of many years’ standing in the amounts of $6,727.30 and $1,363 respectively. One of the policies of the Travelers ’ Insurance Company was signed to Belmont-Sheffield Liquidating Corporation. The other Travelers ’ policy was at all times payable to Mary E. Freeman, wife of Walter W. Freeman. Mary Freeman was likewise at all times beneficiary of the $20,000 Mutual Trust policy and of the $5,000 Equitable Life policy. The $15,000 Mutual Trust policy was originally payable to the estate of Walter Freeman, but he changed the beneficiary on November 27,1937, to Mary E. Freeman, his wife, and on December 1, 1937, he changed the beneficiary of his $25,000 Equitable Life policy from his estate to Mary E. Freeman, his wife, Walter W. Freeman, Jr., and Marilyn Joan Freeman, his children, in equal shares.

The defendants contend that the writing between the plaintiff Ernest E. Freeman and Walter W. Freeman created no equitable lien on any of the policies, and call the court’s attention to vol. 3, Pomeroy’s Equity Jurisprudence, 4th ed., sec. 1235, which, it is contended, was adopted as the rule not only in Illinois, but in federal courts, and generally throughout the United States, and is as follows:

“The General Doctrine — Requisites of the Contract. — The doctrine may be stated in its most general form, that every express executory agreement in writing, whereby the contracting party sufficiently indicates an intention to make some particular property, real or personal, or fund, therein described or identified, a security for a debt or other obligation, or whereby the party promises to convey or assign or transfer the property as security, creates an equitable lien upon the property so indicated, which is enforceable against the property in the hands not only of the original contractor, but of his heirs, administrators, executors, voluntary assignees, and purchasers or encum-brancers with notice. Under like circumstances, a merely verbal agreement may create a similar lien upon personal property. The ultimate grounds and motives of this doctrine are explained in the preceding section; but the doctrine itself is clearly an application of the maxim, equity regards as done that which ought to be done. In order, however, that a lien may arise in pursuance of this doctrine, the agreement must deal with some particular property, either by identifying it, or by so describing it that it can be identified, and must indicate with sufficient clearness an intent that the property so described, or rendered capable of identification, is to be held, given, or transferred as security for the obligation.” and counsel agree that substantially the same rule has been declared by the United States Supreme Court in Walker v. Brown, 165 U. S. 654, and by the Illinois Supreme Court in Aldrich v. R. J. Ederer Co., 302 Ill. 391, and quote 1 Jones on Liens, 3rd ed., sec. 33, where it is stated: .
“The instrument creating the lien is not effectual unless it plainly designates the property to be charged.” However, the plaintiff criticizes this quotation by stating that in the text the plaintiff finds that the period in the foregoing sentence should be replaced with a comma and the sentence continued as follows: “though only such an identification is required as is essential to an enforcement of the lien. ’ ’

The defendants further contend that Hazenwinkle Grain Co. v. McComb, 116 Ill. App. 541 is pertinent in the discussion of the questions involved, and it appears that the defendant advanced $105 on corn, which he agreed to sell and deliver at the market price. Jackson died before the corn was delivered. The administrator of Jackson’s estate was notified of the agreement, and said administrator sold to the defendant all the corn belonging to Jackson’s estate for the sum of $494.22. The defendant paid $389.22, leaving a balance due of $105, which the defendant claims it is entitled to set off against the purchase price of the corn because it had an equitable lien for that amount on the corn belonging to Jackson. The court held that there was no equitable lien involved, and said:

< í rp^g ru¡e £g yia^. y. indispensable to an equitable lien that the property intended to be charged therewith should be identified or described with a reasonable degree of certainty. Union Trust Co. v. Trumbull, 137 Ill. 146. It appears from the stipulation that at the time the contract between Jackson and appellant was entered into, no particular corn was separated or set apart or in any way identified, but that at that time the corn was still in the field. It does not even appear that the contract embraced all the corn then owned or possessed by Jackson, nor in fact any particular or specified quantity. It is therefore apparent that appellant had neither legal nor equitable title to nor actual or constructive possession of the corn, nor a right to the proceeds thereof, nor had it either a legal, equitable or statutory lien thereon. At most it had but a right of action for the money advanced by it and for damages, if any, arising from a breach of the contract. ’ ’

In Aldrich v. R. J. Ederer Co., 302 Ill. 391, upon which the defendants rely, the court said:

“It has been held that whenever parties enter into an express executory agreement in writing indicating an intention to make some particular property, real or personal, or a fund, security for a debt or other obligation, there is created an equitable lien on the property described in such contract which is enforcible in the hands of the original contractor, and also his heirs, administrators, executors, voluntary assignees, purchasers and incumbrancers with notice. (Walker v. Brown, 165 U. S. 654; 10 R. C. L. sec. 100.) An equitable lien is the right to have property subjected in a court of equity to the payment of a claim. It is not a jus in re or a jus ad rem; neither a debt nor a right of property, but a remedy for a debt. (Webster v. Nichols, 104 Ill. 160.) ‘It is simply a right of a special nature over the thing which constitutes a charge or incumbrance upon the thing, so that the very thing itself may be proceeded against in an equitable action and either sold or sequestered under a judicial decree, and its proceeds in one case, or its rents and profits in the other, applied upon the demand of the creditor in whose favor the lien exists.’ (3 Pomeroy’s Eq. Jur. —4th ed. — sec. 1233.) The application of the doctrine of equitable lien has been recognized in this State. Webster v. Nichols, supra.

In Kukuk v. Martin, 331 Ill. 602, the Supreme Court, in commenting upon the question as to whether certain hogs were subject to a lien, said:

“It is contended by plaintiffs in error, among other things, that defendant in error did not acquire an equitable lien on the 108 hogs by the transaction with Kelley; that the court erred in admitting the testimony with reference to the conversation between defendant in error and Gilmore and between Leonard and Kelley. The consideration of these questions is not necessary to a determination of this cause. An equitable lien is the right to have property subjected in a court of equity to the payment of a claim. It is not a jus in re or a jus ad rem. It is neither a debt nor a right of property but a remedy for a debt. It is simply a right of a special nature over the property which constitutes a charge or encumbrance thereon, so that the very property itself may be proceeded against in an equitable action and either sold or sequestered under a judicial decree and its proceeds in one case, or its rents and profits in the other, applied upon the demand of the creditor in whose favor the lien exists. (Aldrich v. R. J. Ederer Co., 302 Ill. 391.) The remedies of equity are, as a class, specific. The doctrine of ‘ equitable liens’ was introduced for the sole purpose of furnishing a ground for the specific remedies which equity confers, operating upon particular identified property, instead of the general pecuniary recoveries granted by courts of law. In a large class of executory contracts, express and implied, which the law regards as creating no property right or interest analogous to property but only a mere personal right and obligation, equity recognizes, in addition to the personal obligation, a peculiar right over the thing concerning which the contract deals, which it calls a ‘lien,’ and which, though not property, is analogous to property, and by means of which the plaintiff is enabled to follow the identical thing* and to enforce the defendant’s obligation by a remedy which operates directly upon that thing*. Pom-eroy’s Eq. Jur. (4th ed.) p. 2961.”

The plaintiffs are quite content with the authority cited by the defendants in point 1 of this brief, Pomeroy’s Equity Jurisprudence, as a general statement of the doctrine of equitable liens, and as stated by counsel for the defendants, substantially the same rule has been declared by the United States Supreme Court in Walker v. Brown, 165 U. S. 654, and by the Illinois Supreme Court in Aldrich v. R. J. Ederer Co., 302 Ill. 391, and call attention to the fact that the defendants have quoted Jones on Liens, 3rd ed. sec. 33, as stating-. “The instrument creating the lien is not effectual unless it plainly designates the property to be charged, ’ ’ and the plaintiffs suggest that in the text as we find it, the period in the foregoing sentence should be replaced with a comma and the sentence continued as follows: “though only such an identification is required as is essential to an enforcement of the lien,” and they cite among the texts as the best discussion of this subject Hanbury’s “Modern Equity” a leading English authority, in which the author said, p. 31: “Equity will not render any help unless the person who invokes it can specifically earmark the fund which he claims, and can show that he has the equitable equivalent of a proprietary interest in it. We have arrived at the root distinction between the restitution which is the keynote of equitable relief on behalf of a cestui que trust against a trustee, and the repayment which is the keynote of common law relief on behalf of a debtor against a creditor. That equity is uncompromising in its requirement of a specific fund is well illustrated by another famous decision of the House of Lords, Hoare v. Dresser, which laid down the following proposition: if there has been an engagement to appropriate to a certain individual a particular cargo, or a particular part of a larger cargo, as e. g., ‘one hundred quarters of wheat out of five hundred quarters which I have now sent, ’ in either of these cases equity will interfere to compel performance; but it is quite useless for the promisee simply to show that the promisor has in his possession such a quantity of wheat; something much more definite is needed. It is easy enough to point out the difference between ‘six bottles of champagne’ and ‘six bottles out of that particular dozen’; equity will render no aid in a contract with the former subject-matter, but will treat the latter as its own particular province. ’ ’

The defendants call attention to and quote the language of Lord Cronworth in the Hoare case (VII House of Lords cases, 291) as follows:

“But I apprehend that neither in equity nor in law can there be any jurisdiction to say that because there is property of the person who ought to have fulfilled his contract, therefore you can make that property available for the specific performance of the engagement.” and contend that the court here is without jurisdiction to do what the plaintiffs by their amended bill seek to have the court do, and in addition to the authorities that we have quoted, plaintiffs point to Klaustermeyer v. Cleveland Trust Co., 89 Ohio St. 142, as an authority supporting the position of the plaintiffs in this litigation, and quote as follows:
‘‘The finding of fact by the common pleas court, and which was adopted by the circuit court, uses this language :
“ ‘ Those directors not indebted to the trust company and making deposits therewith, in accordance with said agreement, should be given security for such deposit, from among the collateral securities then owned by and in the possession of said trust company. ’
“Clearly, this identifies the fund or property which was to furnish the security and which was to he charged with a lien for the benefit of securing Klaustermeyer ’s loan. But it is said that this clearly indicates that there was to be only some part, some portion or fraction, of said securities separated from the residue before the lien would attach.” And among several citations, the plaintiffs cite the case of Lewis v. Braun, 356 Ill. 467, and quote the language of the court as follows: ‘ ‘ Without considering his other remedies, it is sufficient to say that complainant was given certain equitable rights under the contract, and that these rights were not extinguished by the death of Braun but are in danger of being lost by the unjust course of Mrs. Braun unless a court of equity intervenes. . . . The matter of fees to be paid to complainant was not left to subsequent arrangement between the parties for reasonable compensation but was definitely fixed by written contract at certain percentages of the total sum collected. This was sufficient to constitute an equitable assignment.” and the plaintiffs argue that the principles laid down in the above case also govern the present case, and state that there the court held that it was sufficient to constitute an equitable assignment if the parties intended to appropriate to the assignee a certain percentage of some indefinite fund, the exact amount of which was to be determined at some future time.

The defendánts, however, quote the following language found in the opinion of the court:

“It is urged by appellees that there can be no lien before there is a recovery as there is no res or subject matter upon which an equitable lien may attach. This statement does not accord with the facts in this case, as the allegations of the bill show there is a definite res involved in this proceeding, consisting of forty-eight stock certificates, with serial numbers and full description given.” Clearly, it is suggested by the defendants, the res was definitely identified in the senator’s case within the meaning of Mr. Pomeroy’s definition.

It is argued by the defendants that nowhere does the contract provide any personal obligation on the part of Walter W. Freeman to repay any part of Ernest E. Freeman’s contribution, except from the operations of the independent entity of joint venture. True, Walter W. Freeman covenanted to secure Ernest E. Freeman against loss, but there was no debt due or owing from Walter W. Freeman to Ernest E. Freeman at any time, nor did Walter W. Freeman assume any obligation toward Ernest E. Freeman other than to furnish him with security. This was an independent covenant, wholly distinct and separate from any relationship of debtor and creditor, which is one of the essential requisites of an equitable lien, and the defendants further suggest that no allegation will be found in the amended complaint and no proof will be found in the record that the joint venture even threatens to be unsuccessful or fail to return to Ernest E. Freeman his entire contribution thereto. It is elemental that where one is required to respond for the obligation of another, he automatically steps into the shoes of the creditor whose obligation is paid, with all of the rights and privileges of the creditor.

The real question, however, when we come to consider the authorities is to ascertain the intention of the parties to the agreement in question, and in doing so the court is to consider the language employed in the instrument and the facts and circumstances that are present in the record.

The question to be considered is whether the testimony of Ernest E. Freeman and George Fink was properly admitted upon the issues as they are presented to this court. ' The plaintiffs contend that the evidence to which exceptions have been taken consisted of the testimony of the plaintiff Ernest E. Freeman and the late Walter W. Freeman’s attorney, George Fink, explaining the provision in plaintiffs’ exhibit 4 by which Walter W. Freeman promised “to provide said Ernest E. Freeman with life insurance on the life of said Walter W. Freeman in life insurance companies satisfactory to said Ernest E. Freeman in the sum of $30,000. . . .” The plaintiffs contend that both Ernest E. Freeman and Walter W. Freeman intended by the quoted language a promise by Walter W. Freeman to provide Ernest E. Freeman with insurance out of the policies then in force on Walter W. Freeman’s life, and point to the testimony of Ernest E. Freeman and George Fink, Walter W. Freeman’s lawyer, who drew the agreements, and by Fink’s contemporaneous conference notes, that the very question here in issue had been expressly raised when the contract terms were being settled and the draftsman instructed, and that Walter W. Freeman had flatly agreed to furnish Ernest E. Freeman $30,000 out of the insurance then in force. The defendants object to this testimony under the parol evidence rule as hearsay.

Upon the question of the admissibility of parol evidence in a matter such as is before this court, the plaintiffs call attention to the case of Chicago Auditorium Ass’n. v. Corporation of Fine Arts Bldg., 244 Ill. 532, in support of their contention that the evidence of the conversations had between the parties and the attorney, George Fink, was competent. The court upon this subject said: “The same rules of law are applicable to the construction of leases that are applicable to the construction of other contracts, and where the language of a lease is the subject of construction, the object to be attained is to ascertain, if it can be done, the intention of the parties to the instrument and give effect to that intention. ... It was said in Street v. Chicago Wharfing Co., 157 Ill. 605, at page 614: ‘The court will, if necessary, put itself in the place of the parties and read the contract in the light of the circumstances surrounding them at the time it was made and of the objects which they then evidently had in view. So, also, the acts of the parties themselves, indicative of their construction placed upon it, may be resorted to for the purpose of determining the true meaning of the written agreement. And in this regard it makes no difference whether such acts are contemporaneous or subsequent. ’ Preliminary negotiations may be considered for the purpose of determining the meaning and intention of the parties in the use of the words employed in the instrument, but not for the purpose of varying or contradicting the plain terms of the instrument.” The defendants, however, contend that counsel failed to include in the quotation one sentence which is replaced by asterisks in the brief. That omitted language is as follows:

“If the language is plain and unambiguous, proof aliunde cannot be heard to contradict or vary its meaning, or give it a meaning inconsistent with the language used in the instrument.” and direct also to the language of the court in this same opinion, where it is said: “Preliminary negotiations may be considered for the purpose of determining the meaning and intention of the parties in the use of the words employed in the instrument, but not for the purpose of varying or contradicting the plain terms of the instrument.”

When we come to consider the evidence such as was introduced over objection, we find the facts are that an understanding between the plaintiff and Walter W. Freeman is said to have been reached on April 16,1936. Thereafter, in the latter part of that month they visited the attorney and gave him directions as to what should be contained in the written agreement. The attorney testified that he prepared three or four drafts of the contract and finally one proved to be acceptable to Ernest E. Freeman and Walter W. Freeman and that the acceptable draft was executed on May 21, 1936. The contract having been drawn after joint direction, revised more than once, and submitted for examination and approval, ultimately resulting in execution, demonstrates conclusively that the language of the contract clearly expressed the understanding of the parties, and the defendants suggest further that the contract of May 21, 1936, was never completed by the listing of the insurance policies as contemplated. Forty days later, and on July 1, 1936, another contract was executed which employed the identical phrase attacked by the plaintiffs. If, as contended by Ernest E. Freeman the matter of insurance was so definitely understood before the original contract was drawn, and if, as contended by him, the designation of the policies then in force was of such vital importance to him, it would seem strange that he did not object to the phraseology of the contract or require such designation to be made before affixing his signature to the contract on July 1,1936. That is a reasonable suggestion. The court in considering this question has in mind the facts as they were related to Mr, George Fink, the attorney for the parties, and that he prepared several of the drafts, and the draft that was finally approved and executed was that dated July 1, 1936, and if, as contended by the plaintiffs, the insurance policies that were to be the subject of the lien were the policies which were then in existence at the time of the execution of the contract, it does not seem reasonable that Ernest E. Freeman, having all these facts in mind, should have executed the contract in the form it now is, and we rather agree with the theory of the defendants that the plaintiff not having made any objection, it is but proper to consider that the intention of the parties at the time this contract in question was executed clearly expressed the understanding of the parties at the time they signed the contract on July 1,1936.

The plaintiffs commenting on defendants’ argument state it is reasonable to suppose that Walter W. Freeman would have taken out additional policies of life insurance had Ernest E. Freeman insisted upon compliance with the agreement sued upon. In answer the defendants state that Walter W. Freeman after the execution of the contract had applied for insurance and had been rejected, so that being called to our attention, it is only an item of evidence tending to show the intention of Walter W. Freeman in regard to furnishing further insurance.

After consideration of the questions involved, the contract which was executed by the plaintiff and the defendant creates no equitable lien on any of the policies for the reason that it is essential that the property be identified whereby the party promised to convey, assign or transfer the property as provided for in the contract, and there being that uncertainty about it, it is our opinion that the court erred in entering the decree in question, and it is reversed, and the cause is remanded.

While other questions have been called to our attention, it will not be necessary to consider them for the reasons we have stated in the opinion and the conclusion we have reached in the matter before us.

The plaintiffs in this action presented a motion to this court to strike the defendants’ reply brief that had been filed in this appeal, and the principal ground upon which the motion is based is that for the first time it appears in the reply brief of the defendants that the court ignored the defendants’ right of subrogation.

If they be required to surrender, in insurance certificates and cash to Ernest E. Freeman the sum of $30,000, then in justice and equity they should be recognized as being subrogated pro tanto to Ernest E. Freeman’s position and rights in the joint venture, and the point is made that this answer of the defendants was not raised at any time until the filing of the reply brief. The answer, in short, of the defendants is that the court granted relief to the plaintiff Lommen D. Eley, administrator de bonis non not prayed for or urged by this plaintiff, and such being the fact they contend, of course, that they had the right to raise the question that is now objected to by the plaintiffs. However, upon a hearing, the motion was taken by this court to be passed upon, and from the conclusion we have reached, the question is not material, and for that reason the motion to strike will be denied.

Reversed and remanded.

Denis E. Sullivan, P. J., and Burke, J., concur.