author: Mr. Justice Shurtlepf

text:
    Frank E. Neal, Appellee, v. Lincoln Oil Refining Company, Appellant.
    Gen. No. 8,667.

      Opinion filed January 16, 1933.
    McCarty & McCarty and Charles Troup, for appellant.
    Grant & Jones and Jones, McIntire & Jones, for appellee; John E. Sebat and V. W. McIntire, of counsel.
   Mr. Justice Shurtlepf

delivered the opinion of the court.

This is an action of trespass on the case brought by appellee against appellant to recover damages occasioned to appellee’s automobile by fire while it was stored in appellant’s garage.

The declaration was in one count and in substance alleged: That on the 2nd day of November, 1931, appellant was in possession of a building at 136 North Hazel street in Danville, Illinois, and was there conducting a public garage for storage of automobiles for hire, and appellee had rented space in said garage for the storage of his automobile from month to month and was paying appellant its regular monthly charge therefor; that on the date aforesaid appellee had his Packard sedan, which was in good condition and of the value of $1,000, stored in said garage, and it then and there became the duty of appellant to use ordinary care to safely keep and store said automobile and deliver the same to appellee on demand in good condition; yet appellant did not regard its duty or use due care in that behalf but on the contrary on the day aforesaid by the negligence of appellant and its servants, said automobile of appellee was damaged by fire and lessened in value.

Appellant filed the general issue. There was a trial by jury and verdict and judgment against appellant in the sum of $73 and appellant has appealed.

Appellant first assigns error in that the declaration merely charges general negligence, and does not specify any particular acts of negligence and therefore does not state a cause of action. This assignment of error is not argued and is therefore abandoned.

It is further assigned as error that the court did not instruct the jury to find a verdict for appellant. The question of law presented upon a motion to direct a verdict is whether, when all of the evidence is considered, together with all reasonable inferences drawn from it in its most favorable aspect to the party against whom the motion is directed, there is a total failure to prove one or more nécessary elements of the case. (Foreman-State Trust & Savings Bank v. Demeter, 347 Lincoln Oil Refining Co. 72; Coal Creek Drainage & Level Dist. v. Sanitary Dist. of Chicago, 336 Ill. 11.)

If the evidence tends to prove the allegations of the declaration, the trial court should refuse to give an instruction to find for the defendant and should submit the questions of fact to the jury under proper instructions. (Pittsburgh, C., C. & St. L. Ry. Co. v. Banfill, 206 Ill. 553; Staunton Coal Co. v. Bub, 218 Ill. 125.)

It has been held in this class of cases that, although the bailor, by showing that the goods were received in good condition and were not returned by the bailee, makes out a prima facie case, if the bailee offers evidence tending to show that he was not negligent the burden is still on the bailor to show that the bailee was, in fact, negligent and that his negligence caused the loss, or contributed thereto. Miles v. International Hotel Co., 289 Ill. 320.

In this case, after appellee had made out a prima facie case and appellant had submitted proofs on its part, tending to show due care and that the fire was not caused by any negligence on the part of appellant, appellee submitted proofs tending to show the following state of facts:

The garage operated by appellant and in which appellee’s car was stored at the time of the fire, was a brick building fronting on Hazel street, a north and south street in the City of Danville, Illinois. It was known as the Hotel Wolford garage and was sometimes spoken of as the Lincoln garage. A public alley runs north and south along the rear end of the building and a private alley runs east and west along the north side separating it from a filling station, also operated by appellant. The main entrance to the garage for vehicles was on tiie north side and near the front end, opening from the filling station. Another door opened from the rear of the garage into the public alley.

The furnace room was in the main body of the garage located in the northwest corner and was inclosed in a separate room about 14 feet long and 10 feet wide. The roof of the furnace room was made of timber and was about 12 feet above the floor. In the furnace room at the time of the fire was a wooden barrel containing sawdust which was used to clean up grease and oil any place in the building or on the floor where grease or oil dropped on the concrete. This barrel was about five or six feet from the oil heater. After the fire the wooden staves on the barrel had been burned, but the sawdust, which was watersoaked, remained as if in a mold.

The garage was heated with steam generated by an automatic oil heater known as a Williams Oilomatic. This heater was in the furnace room, and set five or six inches above the floor.

The Oilomatic heater was designed and equipped to burn fuel oil, which is a heavier oil than kerosene, but at the time of the fire appellant was burning kerosene in this burner and had been for some time prior to the fire. The effect of burning kerosene in an Oilomatic burner designed to burn heavy oil is that it is very liable to puff, as the kerosene is too fast for it. This puff is in the nature of a mild explosion and if severe might blow the door open. E. J. Ryan, who has been in the heating contracting business in Danville for 38 or 39 years and who sells and services the Williams Oilomatic heater, was called over to the garage two or three days before the fire to service this oil burner. At the time he was there there was a lot of sawdust on the floor of the furnace room saturated with oil. This sawdust was about an inch and a half thick and covered a place about three feet long on the north side of the burner. Ryan had a talk that day with Bradbury, appellant’s manager, and asked him why he was burning kerosene in the Oilomatic and Bradbury said that his company made kerosene but did not handle fuel oil. Ryan says that he probably said something to Bradbury about whether he should or should not burn kerosene in the burner but that he was not positive; that he would caution anybody not to burn kerosene in an oil heater. Ryan did tell Bradbury on this occasion that the machine was not made to burn kerosene and that they would have bad luck with this burner if they did not quit using kerosene in it.

The fire started in the Oilomatic burner. An employee by the name of John Stuth went back and tried to put the fire out with a fire extinguisher and when Bradbury saw that Stuth could not extinguish the fire he called the fire department. When the fire was first discovered, flames were enveloping the oil heater. The fire proceeded from that place to the wooden ceiling which caught fire and from which the flames spread to the room where the cars were. When the fire department arrived, the back of the garage was in a mass of flames. The fire had spread to the main part of the garage at that time. The roof over the furnace room was a mass of flames and the whole back corner was aflame. The firemen put a line of hose in the north window and then went to the back door and knocked it in and put a line of hose in it at that place. At the time of the fire there were some boards and boxes and other small stuff which the assistant fire chief characterized as junk and waste on top of the wooden ceiling over the furnace room. When the fire was put out the remains of these boards and boxes could be seen. It required about an hour and 20 minutes to extinguish the fire.

The furnace in which the Oilomatic heater was installed had formerly been equipped with coal grates and when the oil heater was installed the ash pit door was taken away and in that place was put a four-inch tube of the burner, and the remainder of the opening was closed up with fire brick covered over with asbestos. After the fire a piece of the asbestos was found to have been broken out in one corner.

There was no dispute as to the injury of appellee’s car, caused by the fire, and the expense of the repairs. There was no error on the part of the court in refusing to instruct the jury to find a verdict for appellant and we cannot hold that the verdict is manifestly against the weight of the testimony.

Appellant assigns error upon the court’s refusal to give nine instructions on behalf of appellant. The court gave nine instructions for appellant which stated all of the law of the case. A part of the instructions refused did not state the law of the case and the others were covered by the instructions given.

Other assignments of error were made but were not argued and were therefore waived.

Finding no error in the record that would warrant a reversal of the judgment, the verdict and the .judgment of the circuit court of Vermilion county are affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Shurtleee

license: Public Domain

text:
    Schwulst Gerling Company, Appellant, v. Nathanial Frost et al., Appellees.
    Gen. No. 8,675.
    Opinion filed January 16, 1933.
    Costigan & Wollrab, for appellant.
    Bracken, Livingston & Murphy, for appellee Nathanial Frost; J. B. Murphy, of counsel.
   Mr. Justice Shurtleee

delivered the opinion of the court.

The original bill of complaint in this case was filed October 21, 1931, by Bruce Morgan et al., to foreclose a trust deed in the nature of a mortgage. The trust deed was executed October 15, 1930, by Floyd C. Ham-man, and his wife, to C. F. Sldllman, trustee, to secure the payment of $6,000, evidenced by 11 promissory notes. Bruce Morgan and the other complainants in the original bill are the owners of $4,800 worth of said notes. The remainder of the notes are not outstanding. '

The trust deed to Sldllman is subject to the prior and superior lien of another trust deed to J. B. Murphy, trustee, executed and delivered by the Hammans on November 12, 1929, to secure an indebtedness of $7,000. The trust deed to Murphy was duly recorded in McLean county on November 12, 1929.

Appellee-Nathanial Frost is the owner and holder of all the principal notes and interest coupons secured by the said trust deed to J. B. Murphy. Mr. Murphy, in his capacity as trustee, was made a defendant to the original bill, and on November 12, 1931, he filed his answer thereto, asserting the priority of the trust deed to him over and above the lien of the Sldllman trust deed and over and above all mechanic’s liens alleged to exist. Mr. Frost was not made a party defendant to the original bill, presumably because his identity was not then known to the appellees.

Appellant, Sehwulst Gerling Company, a corporation, having previously, on March 19, 1931, filed in the office of the circuit clerk a claim for mechanic’s lien against the real estate described in the two trust deeds, was named as one of the defendants in the original bill of complaint. The answer of appellant to the bill was filed November 6,1931. It avers the filing of said claim for lien and states that a balance of $1,364.14 remains due and unpaid and alleges the mechanic’s lien to be prior and superior to both trust deeds.

On November 7, 1931, appellant filed a cross-bill to foreclose its alleged mechanic’s lien. This cross-bill will hereinafter be referred to as the original cross-bill.

The original cross-bill alleges that on October 22, 1929, appellant entered into a contract with Sam A. Livingston, Jr., then owner of the real estate in question, and with C. F. Skillman to erect on said premises a two-story brick veneer house and double garage, for the sum of $8,006, according to plans and specifications prepared for that purpose and made a part of the contract.

Continuing, the cross-bill alleges that appellant complied fully with said contract, and that it completed performance of same on November 21,1930; that prior to the completion date said Livingston and Skillman had made payments on the contract aggregating $4,700, leaving then due thereon the sum of $3,306. It shows further credits made after completion and alleges a final unpaid balance of $1,364.14, with interest at the rate of six per cent per annum from September 30, 1931. It represents that on November 12, 1929, title to the real estate was conveyed by deed from said Livingston and wife to the said Floyd C. Hamman; that Livingston died on or about September 18, 1931; that said balance of $1,364.14 remains due and unpaid, and that on March 19,1931, appellant filed in the office of the circuit clerk a statement of claim for lien, a copy of which was attached to the original cross-bill and marked Exhibit B. A copy of the contract was also attached and identified as Exhibit A.

Exhibit B was in the following form:

“Claim of Lien.

“Know All Men By These Presents, That SchwulstG-erling Company, a Corporation, claim a lien for the sum of Two Thousand Six Hundred and Sixty-two ($2662.00) no/100 Dollars, on the following described Real Estate and the appurtenances thereof, situated in the County of McLean and State of Illinois, viz.:

“The East Twenty-five Feet (25 ft.) of Lot Eight

(8) and the West Twenty-five feet (25 ft.) of Lot Nine

(9) in Block Four (4) in Davis Fourth (4th) Addition to the City of Bloomington, and otherwise known as 1106 Elmwood Road.

“The said lien so claimed being for labor and material used in and about the construction of Brick veneer two-story house for Sam A. Livingston, Jr., and C. F. Skillman as per itemized statement hereto attached, which shows the several times at which said labor and materials were furnished on contract and the payments made thereon.

“Contract covering all labor and materials for the construction of two-story brick veneer house dated October 22, 1929 $8006.00

“First Material Delivered on October 28, 1929 and first work done on October 22, 1929. Last work performed on Contract November 21, 1930. Interest as agreed from date to March 19, 1931 206.00

Total $8212.00

“Credits

“By Cash Sept. 20, 1930 $3000.00

“ “ Nov. 20, 1930 1700.00

“ “ Jan. 17, 1931 850.00

- 5550.00

Balance due $2662.00

State of Illinois, McLean County, ss.

“C. F. Sehwulst President, Schwulst-G-erling Company, a Corporation being duly sworn on his oath says that the foregoing statement is true and correct, and that the sum of Two Thousand Six Hundred and Sixty-two ($2662.00) no/100 Dollars is due said Schwulst-Gerling Company, a Corporation from said Sam A. Livingston, Jr. and C. F. Sldllman on account of the Building' Contract Balance due, mentioned in said statement, after allowing all just credits.

“C. F. Sehwulst.

“Subscribed and sworn to before me this 19th day ■of March, A. D. 1931.

“J. Huber Allen,

“Circuit Clerk.”

The contract is single and entire, covering the furnishing of all labor and material required for the erection of the house and double garage and is as follows:

“Agreement.

“This contract made and entered into in duplicate this 22d day of October, A. D. 1929, by and between Schwulst-Gerling Company of Bloomington, Illinois, party of the first part, and S. A. Livingston and C. F. Skillman of Bloomington, Illinois, parties of the second part.

“Witnesseth: That the party of the first part for and in consideration of the covenants and agreements on the part of the said second party hereby agrees to erect on lot belonging to said second party located at 1106 Elmwood Road, a two-story, brick veneer house and double garage, same to be built according to plans and specifications, all of which are made a part hereof, said work to be commenced immediately and house and garage to be built at the convenience of the said party of the first part and to be completed at convenience of the party of the first part. All work to be done in a first-class workmanlike manner.

“Party of the second part for and in consideration of the covenants and agreements on the part of the said first party agrees to pay to the party of the first part the sum of Eight Thousand and Six Dollars and No Cents ($8,006.00). Party of the second part agrees to make partial payments at his convenience during the construction of said house and garage; the balance remaining due at completion to be due and payable immediately. If not paid upon completion, party of the second part agrees to pay interest at the rate of Six per cent per annum (6%) on the amount then due. This agreement to be binding upon the heirs, executors, administrators and assigns of the parties hereto.

“Witness our hands and seals the day and year above written.

“.Schwulst Gerling Co.,

By C. F. Schwulst, Pres. (Seal) Sam A. Livingston (Seal)

C. F. Skillman (Seal)

S.A.L.”

The claim for lien states that said sum of $8,006 covered the labor and material used for the construction of the two story brick veneer house. No mention whatever is made in the claim for lien of the double garage, nor of the cost of the plans and specifications referred to in the contract. According to the claim for lien, the entire contract price of $8,006 was consumed in the erection of the house, leaving nothing for the double garage and nothing for the plans and specifications.

The original cross-bill alleges the erection of both the house and garage, but it contains no allegation concerning any separation of the cost of the garage from that of the house. Neither does it aver any particular application of payments other than to the single lump sum contract price of $8,006 for the house and garage.

The cross-bill alleges that Nathanial Frost and others have or claim some interest in the premises as incumbrancers or purchasers, or otherwise, but that such interest is subordinate and inferior to the mechanic’s lien of appellant.

Appellee Nathanial Frost was made a defendant to the original cross-bill and served with summons returnable to the February term, 1932. Frost filed a general and special demurrer to the cross-bill. The demurrer was sustained May 2, 1932, and leave was granted to cross complainant (appellant) to file an amended cross-bill.

On May 19, 1932, Frost, not being party to the original bill of complaint filed by Bruce Morgan et al., obtained leave to intervene as a defendant therein and to file his answer and cross-bill thereto. His cross-bill filed May 20, 1932, recites the then existing pleadings, etc., and represents that he (Frost) is the owner of $7,000 worth of notes secured by the trust deed to J. B. Murphy, trustee. It avers that the lien of said trust deed is superior to all other claims or liens. Default on the part of the mortgagors is shown and foreclosure prayed.

Appellant was made a party defendant to the Frost cross-bill. It filed its answer thereto on June 28, 1932, denying all material allegations therein contained. On the same day it filed its amended cross-bill to foreclose the alleged mechanic’s lien.

The amended cross-bill of appellant is practically identical with its original cross-bill, except that the following additional paragraph appears therein:

“That the total contract price as expressed in Exhibit ‘A’ was the sum of $8,006.00. That the price of the double garage included in said contract was the sum of $750.00, the remainder of the contract price, to wit: the sum of $7,256.00, being for the two-story brick veneer house erected by your orator on said premises, that said prices represented the fair cash market value of said buildings respectively at the date of the completion thereof; that the payments totalling $4,700.00 made to your orator prior to the time of filing statement of claim for lien with the Clerk of the Circuit Court of McLean County, Illinois, were made without any direction by the payors as to the application of said payments, and that said payments were first applied by your orator in settlement of the agreed price of said double garage; that the balance of $1,364.14 and interest now due to your orator represents an amount no greater than one-third the value of the two-story brick veneer house erected by it on said premises.”

The allegations contained in the above paragraph quoted from the amended cross-bill do not appear in the original cross-bill. The averments concerning filing of the claim for lien in the office of the circuit clerk are made more fully and with greater particularity in the amended cross-bill. There are no other material differences between the original and the amended cross-bill of appellant.

The amended cross-bill alleges the execution and performance of the same contract, and describes the same claim for lien mentioned in the original cross-bill.

Appellee Frost filed his general and special demurrer to appellant’s amended cross-bill on June 28, 1932, and the same was adopted by other defendants. Sixteen causes of special demurrer were assigned. The first 12 were identical with those in the demurrer to the original cross-bill. The demurrer to the amended cross-bill was sustained on July 1, 1932. Appellant elected to stand by its amended cross-bill and the same was dismissed at its costs. From the ruling of the chancellor in sustaining the demurrer of appellees to the amended cross-bill, appellant has prosecuted this appeal.

In the case of Buckely v. Commercial Nat. Bank, 171 Ill. 284, 290, the court said: “Manifestly, the purpose of requiring the statement to be filed is that third persons dealing with the property shall have notice of the amount, nature and character of the lien, as well as the times when the material was furnished or labor performed, and thus enable them ‘to know, from the el aim itself, that it is such as can be enforced.’ ”

The issues in this case are confined to the question of priority between the alleged mechanic’s lien and the incumbrances held by third parties who are the appellees in this cause.

A great many objections are raised to the sufficiency of appellant’s cross-bill which we shall not discuss or determine in passing upon this case. The claim for lien does not set out that the improvements were constructed upon the lands described in the cross-bill of complainant.

The principal question raised by this record is the variance between the terms of the contract and .the improvements made as set out in the claim for lien. Under the contract appellant agreed to furnish the material and labor and construct a two-story brick veneer house and double garage for $8,006. Under the claim for lien appellant claims the contract price for the furnishing of the labor and material and building the house only. There is no claim for the double garage. After the demurrer was sustained to the first cross-bill, appellant, by an amended cross-bill, has attempted to apportion his claim by charging that the price of the double garage was $750 and the remainder of the contract price, $7,256, was for the two-story brick veneer house. This he cannot do. (Crosby v. Loop, 14 Ill. 330; Adler v. World’s Pastime Exposition Co., 126 Ill. 373, and Cronin v. Tatge, 281 Ill. 336.) In the latter case the court said on page 339: “As said by this court in Adler v. World’s Pastime Exposition Co., 126 Ill. 373: ‘It will be observed that under the contract the petitioners were to be paid for the entire labor agreed to be performed, — that for which the statute confers a lien as well as that for which no lien is given, — the sum of $5,000. The contract is entire. There is no way in which it can be determined what portion of the $5,000 shall be paid for a part of the services rendered and what part shall be paid for another part of such labor. The entire sum named — the $5,000 — is to be paid for the entire amount of labor to be performed under the contract. The result is, as an entire contract it cannot be enforced in this proceeding, for the reason that no lien is given for a part of the labor to be performed under the contract. On the other hand, the contract cannot be enforced as to that part of the labor performed for which a lien is conferred by the statute because the contract is entire, and an entire contract cannot be apportioned and the performance of it enforced in fragments.—Crosby v. Loop, 14 Ill. 330; 2 Parsons on Contracts, 519, and note.’ ”

Appellant contends that payments having been made by the owner with no directions as to the application thereof, appellant was” entitled ■ to make the application of said payments to the nonlienable part of the account, but it has been held: ‘1 The general doctrine as to the application of payments undoubtedly gives the creditor the right, in the absence of a direction, to apply the credit according to his own selection. . . . But a different doctrine obtains where the rights of third parties are involved.” Clow & Sons v. Goldstein, 147 Ill. App. 571. Where the rights of third persons are affected, the creditor cannot apply payments according to his own selection. Liese v. Hentze, 240 Ill. App. 273. “A payment made on account, without directions as to its application, may afterward be applied to particular items of indebtedness by mutual agreement of the debtor and creditor, where the interests of third parties are not involved.” Royal Colliery Co. v. Alwart Bros. Coal Co., 276 Ill. 193.

‘ ‘ The debtor has a right to have his payment applied to his indebtedness as he directs, but if he makes no direction, the creditor may apply the payment as he sees fit, provided no third party is prejudiced. ’ ’ Chicago Title & Trust Co. v. Central Trust Co. of Illinois, 312 Ill. 396.

“Mechanic’s liens were not recognized by the common law, nor allowed in equity independently of statute, but they exist only by virtue of statutes creating them and providing a method for their enforcement ; therefore, such statutes must be strictly construed with reference to all requirements upon which the right to a lien depends. ” (Cronin v. Tatge, 281 Ill. 336; North Side Sash & Door Co. v. Hecht, 295 Ill. 515; Armstrong v. Obucino, 300 Ill. 140.)

In holding that mechanic’s lien laws are to be strictly construed with reference to all requirements upon which the right to a lien depends, the Supreme Court said in the case of North Side Sash and Door Co. v. Hecht, supra: “This is true notwithstanding section 39 of the act, which provides: ‘This act is and shall be liberally construed as a remedial act.’ ”

“ ‘The lien is provided by statute and not by contract, and unless the statute, under the rule of strict construction, creates the lien none can be asserted or maintained. The remedy by mechanic’s lien is in addition to the ordinary remedies afforded by the common law and is a privilege enjoyed by one class of the community above other classes. A party seeking to enforce such a lien must bring himself strictly within the terms of the statute.’ ” (Colp v. First Baptist Church, 341 Ill. 73, 78; Rittenhouse & Embree Co. v. Brown & Co., 254 Ill. 549.)

It has been further held: “The lien given by the statute will attach from the date of the contract, and whoever purchase the property after the contract is made purchases subject to the lien under that contract and is bound by it” (if the lien has been properly perfected) ; “but it is a general rule that where the interests of such a purchaser are to be affected a stricter construction of the Lien law will be adhered to than is followed in cases arising between a mechanic or material-man and the original owner. ” Crowen v. Meyer, 342 Ill. 46, 54. “It is a general rule that where the interests of a purchaser are to be affected, a stricter construction of the lien law will be adhered, to than is followed in cases arising between the mechanic or material-man and the original owner.” Springer v. Kroeschell, 161 Ill. 358.

It follows that the decree of the circuit court of McLean county should be and is affirmed.

Affirmed.


author: Mr. Justice Shurtlbff

text:
    Ada F. Wright, Appellee, v. John J. Stinger, Appellant.
    Gen. No. 8,679.

      Opinion filed January 16, 1933.
    R. H. Radley, for appellant.
    Ren Thurman, for appellee; James St. Cerny, of counsel.
   Mr. Justice Shurtlbff

delivered the opinion of the court.

This is a suit in assumpsit begun by Ada F. Wright on October 19, 1929, against John J. Stinger. A trial, beginning on February 15, 1932, resulted in a verdict for the appellee, fixing her damages at $1,591.75.

The first count of the declaration is based on a note dated February 4, 1908, for the sum of $1,661.75, payable to Ada F. Wright, on or before three years after date, with interest at five per cent per annum, and signed by the defendant, John J. Stinger. There are indorsements of two payments on the back of this note. The first indorsement is for $50 under date of May, 1928. This indorsement was made by the plaintiff, who admits that after making it, she placed the figure seven across the figure eight so that it would appear the payment was made in 1927 instead of 1928. The indorsement shows the change in date. The other indorsement of payment is $20 under date of May 20, 1929. Common counts were filed with the count on the note. Before the trial it was stipulated that the appellee would rely on the note.'

Appellant filed the plea of a general issue and three special pleas. The first special plea sets up the 10-year statute of limitations, the second the five-year statute of limitations, and the third, discharge in bankruptcy in 1915. Appellee joined issue on the plea of the general issue, and replied to the first special plea that the appellant had made payments on the note within 10 years prior to the beginning of the suit; to the second special plea that the appellant had made payments on the note within five years prior to the beginning of the suit; to the third special plea, that is, to the plea of discharge in bankruptcy, appellee replied that since the discharge in bankruptcy October 1, 1915, appellant had promised to pay the note. Appellant rejoined to each of these replications denying the payments and denying the promise to pay.

The note on its face is outlawed. To remove the bar of the statute it was necessary for appellee to prove that a payment or payments had been made by the appellant on the note within 10 years prior to the beginning of the suit under such circumstances as would indicate the intention to pay the full amount. To remove the bar of the discharge in bankruptcy it was necessary for appellee to prove an oral or written promise to pay.

It is the contention of appellant that at no time since his discharge in bankruptcy in 1915 has he made any payment on this note, and that at no time since then has he ever promised to pay it or any part of it.

Appellee, Ada F. Wright, testified that she lived in Chillicothe, Illinois, and that appellant lived on the Caterpillar Trail about two miles north of Bast Peoria, and that the distance between her home and his home is about 23 miles. She stated that on May 18, 1927, she drove to the appellant’s house for the purpose of trying to collect something on the note. She did not take the note with her. She testified that at her request Stinger paid her $50 to be applied on the note; that she went home and the next day indorsed the payment on the back of the note. She testified that on May 20, 1929, she again went to Mr. Stinger’s house for the purpose of collecting something on the note. She did not take the note with her. She says that Stinger at that time paid her $20 to be applied on the note and that she went home and indorsed the payment on the back of the note the next day.

There was a trial by jury, a verdict and judgment for appellee, and appellant has brought the record to this court by appeal for review.

Appellant’s chief contention is that the verdict is against the manifest weight of the evidence. As to the proofs, it was shown by appellee that on May 18, 1927, appellee and her son drove to the home of the appellant, and while there she asked appellant to pay her $50 on the note, as she needed the money very badly to make a payment on the mortgage on her home. In compliance with this request appellant on that date gave her his check for $50 and just before she left his home he requested her to sign a receipt for such payment. This supposed receipt was prepared by the appellant and laid on a table in his home for her signature. The evidence shows that this proceeding was between two aged people who had been close friends for a great many years, and the appellee was probably justified in signing any paper, relying upon the representation of her old friend as to the nature of such instrument. Appellee is an old lady with impaired eyesight, and at the time this supposed receipt was executed by her there was a storm approaching and it had become very cloudy and dark. Appellee was at least 23 miles from home and very anxious to get started homeward in order to avoid being caught in a storm. She testified in regard to signing this paper as follows:

“He wanted me to sign a receipt, and I signed something, and the storm was coming on so quickly that we got out of there in about a half a minute afterwards; if we hadn’t we would have been at Stinger’s for the next three or four days.”

Appellee’s apprehension about the storm was fully justified, as on her way home the car in which she was riding became stalled in water on the road and remained so for over two hours before being pulled out by a truck. Because of the severity of the storm, the facts and circumstances regarding the payment of the $50 and the signing of a paper thereafter, are very vivid in the mind of appellee. There is no denial by appellant regarding the climatic conditions or what occurred at the time appellee signed' the supposed receipt. The appellant furnishes the concrete evidence that she did receive from him on that date the sum of $50 by introducing the check in evidence.

After the payment of $50 to be applied on the note, appellee and appellant continued to visit back and forth. Amelia Oetzel, a niece of the appellee, was with her on various occasions when she visited the appellant at his home, and on all those occasions the matter of the note was discussed between appellee and appellant. This niece testified that on each of such occasions the appellant unqualifiedly promised appellee to pay the note. She further testified that since this suit was started she was at the home of the appellant with appellee in regard to seeing whether she could rent his place for the purpose of serving chicken dinners, and on that occasion the appellant unqualifiedly promised to pay said note. It does not appear in the evidence why this promise was made after this suit had been filed, but it is inferred that he made this promise in order to placate the appellee and thereby cause a dismissal of her suit.

There is no denial in the evidence that the appellee and her niece were at the home of the appellant after this suit was filed for the purpose they testified. Appellant in his testimony merely makes a general denial that at any time after the year 1915 he made any promise to the appellee to pay said note.

Charles Wright, son of appellee, on May 18, 1927, heard appellant unqualifiedly promise to pay his mother the note in question and on said date saw him make the $50 payment. The son further testifies that on May 18, 1927, some time after the payment of $50 was made and just before they left the appellant’s home in a great hurry, the appellant asked appellee to sign a receipt for such payment. At that time the son was 18 years of age and in all probability if he had looked at the paper signed by his mother he would not have known the nature and effect of the same, but he testified that in the rush to leave he never looked at the paper signed by his mother, assuming it was a receipt as represented by the appellant.

The son, in testifying as to what occurred about two years after the payment on May 18, 1927, stated that the appellant, after being requested for a payment on the note by his mother, stated he didn’t have any money that day. That is practically the same interpretation put upon the answer of the appellant to his mother’s request for a payment on the note that she testified to, but this son testifies that on said occasion he did see money change hands between his mother and the appellant, which corroborates the appellee in her testimony as to a payment being made on said date on the note by the appellant. The appellee and her son were at the home of the appellant the entire day, and it is quite reasonable to presume that this young man did not hear all the conversation that transpired between his mother and the appellant, although he did observe an actual payment being made.

There is no denial in the evidence that the appellee and her son were at the home of the appellant on May 20, 1929, and there is no denial that such a conversation as related by the appellee and her son did take place. The appellant merely denies the fact that he made a payment of $20 on said date to the appellee to be applied on said note. All the other testimony in regard to this transaction is undenied.

On the proofs submitted by appellant it appears that the instrument which appellee had signed on May 18, 1927, supposing it to be a receipt, turns out to be a promissory note, by which the appellee promised to pay the appellant the sum of $50 in 30' days, but nothing of this was set out in the pleadings. Appellee had never been asked to pay the note. Appellee had never known she had given a note. On the day in question, during the threatening storm, appellee testifies she signed, without reading, what was laid before her as a receipt. Appellant denies all of the testimony of appellee and the other two witnesses.

The only issue in this case, except one, is an issue of fact. As to the law applicable to this case: “It is settled that a discharge in bankruptcy, while releasing the bankrupt from legal liability to pay a debt that was provable in the bankruptcy, leaves him under a moral obligation that is sufficient to support a new promise to pay the debt, and in reason, as well as by the greater weight of authority, the date of the new promise is immaterial ; and so under other bankrupt acts it has been commonly held that a promise to pay a provable debt, notwithstanding the discharge, is as effectual when made after the filing of the petition, and before the discharge, as if made after the discharge.” (Zavelo v. Reeves, 227 U. S. 625; Meyer v. Price, 250 N. Y. 370, 165 N. E. 814.)

A subsequent promise to pay a note barred by a discharge in bankruptcy removes the bar created by the discharge and renders it competent evidence under the common counts as an . original cause of action. The promise after discharge need not be based on any new consideration and is not necessary to be in writing. (Marshall v. Tracy, 74 Ill. 379; Katz v. Moessinger, 110 Ill. 372; St. John v. Stephenson, 90 Ill. 82; Stern v. Smith & Co., 225 Ill. 430.)

"While a new promise must be in writing to toll the running of the 10-year statute, a payment made upon a note is sufficient to toll the statute if established by parol evidence. (Ott v. Flinspach, 143 Ill. App. 61; Hennessey v. Walsh, 142 Ill. App. 237; Willett v. Maxwell, 169 Ill. 540; Lowery v. Gear, 32 Ill. 382.)

Where the evidence is conflicting, and the jury was properly instructed, the verdict will not be set aside on the ground that it is not supported by the evidence unless the verdict is clearly and manifestly against the weight of evidence. (Lusk v. Throop, 189 Ill. 127.) Where the evidence is sharply conflicting, courts rarely feel warranted in holding a verdict manifestly wrong. (Hart v. Wilson, 177 Ill. App. 510.)

Appellant assigns error because the court, after plaintiff had closed her case and the defendant had testified and produced the pretended note, permitted plaintiff (appellee) to reopen her main case and submit the testimony of Charles Wright and Amelia Oetzel. This was not error. It is within the discretion of the trial court to admit evidence for the plaintiff after defendant has rested, though the evidence is not proper in rebuttal. (Maxwell v. Durkin, 185 Ill. 546; Sans Souci Park v. Anderson, 202 Ill. App. 118; Kersul v. Baldwin Piano Co., 208 Ill. App. 265; People v. Lukoszus, 242 Ill. 101; Hartrich v. Hawes, 202 Ill. 334.) Admission of evidence in rebuttal which is properly admissible in chief is within the sound discretion of the trial court. (Floto v. Floto, 233 Ill. 605; Gray v. Bonfield, 59 Ill. App. 381; City of Marseilles v. Heister, 142 Ill. App. 299; Cleveland Seed Co. v. Moore, 142 Ill. App. 615.)

Appellant complains that the verdict is less than it should have been, the jury not having figured or added any interest upon the note. Appellant cannot complain that the verdict is too small. Heyman v. Heyman, 210 Ill. 524.

There are some peculiar features to this case. The controversy arises between two old, close friends, who have known each other quite intimately for a period of approximately 40 years. The appellee is a widow residing at Chillicothe, Illinois. The appellant is 73 years old and has resided in Tazewell county for 62 years. The friendship existing between the two litigants has continued uninterruptedly from the time they became acquainted to the present time.

We have read all of the proofs and in connection with all of the circumstances in the case the proofs fully support the verdict.

The verdict and judgment of the circuit court of Tazewell county are affirmed.

Affirmed.


text:
    Clara L. Janssen, Appellee, v. H. Fred Janssen, Appellant.
    Gen. No. 8,687.

      Opinion filed January 16, 1933.
    W. St. John Wines, for appellant.
    Cassels, Potter & Bentley, for appellee; Balph F. Potter, Leslie H. Vogel and Egbert B. Johnstone, of counsel.
   Mr. Justice Shurtleee

delivered the opinion of the court.

This is an appeal by H. Fred Janssen, petitioner below, from an order of the circuit court of Sangamon county refusing to modify a decree for separate maintenance in favor of the respondent, Clara L. Janssen, entered in this cause at the March term, 1925, as subsequently modified. Appellant’s claim to the relief sought is predicated solely upon a purported decree of divorce obtained by him from a Reno, Nevada, court based on substituted service upon the appellee, who at all times remained in the State of Illinois and who in no way submitted to the jurisdiction of that court.

Appellant claimed to have established a bona fide residence in the State of Nevada after the circuit court of Sangamon county, the place of his residence and of the matrimonial domicile, had twice refused him a divorce and had granted appellee the decree for separate maintenance here in question.

The material facts are as follows: The parties to this cause were married in the State of Illinois in the year 1899. In 1922 they separated and thereafter at the January term, 1924, of the circuit court of Sangamon county the appellant filed his bill for divorce from the appellee charging desertion. A trial was had upon the bill and appellee’s answer which resulted in a decree in favor of appellee.

At the September term, 1924, of the circuit court of Sangamon county the appellant again filed a bill for divorce against appellee this time charging adultery. The appellee filed her answer to the bill denying the charges and also filed a cross bill for separate maintenance.

A trial was had on the original bill and answer resulting in a decree dismissing the original bill for want of equity. Thereafter a hearing was had on the cross bill and appellant’s answer thereto. Following the hearing the court entered a decree finding the equities in favor of appellee and that she was living separate and apart from appellant without fault on her part. By the terms of this decree appellee was granted separate maintenance in the amount of $1,000 per year. It is this decree, as subsequently modified, that appellant is here seeking to avoid.

On June 28, 1931, appellant went to Reno, Nevada. Prior to that date he had learned that the law of Nevada required only six weeks’ residence to obtain a divorce. He consulted his attorney regarding the Nevada law and about three months before going to Reno he corresponded with an attorney there regarding the law and his contemplated divorce action. When he went to Reno it was with the specific intention of obtaining a divorce.

Appellant testified that he first made up his mind to reside in Reno “when he lost his cough,” and that he “lost his cough” after he had been in Reno four or five weeks. Six weeks after he arrived in Reno appellant filed his complaint for divorce and immediately thereafter returned to Springfield, where he remained until a few days before his divorce suit was set for trial. During all the time he had been in Reno appellant continued to operate his floral and seed business at Springfield. Appellant returned to Springfield, Illinois, to look after his business at the expiration of the six weeks’ residence at Reno.

Before returning to Illinois appellant filed his suit in the Nevada court, praying a divorce on two charges: that, for more than five years immediately and continuously preceding the filing of the complaint (bill for divorce), the plaintiff and defendant have lived separate and apart and have not cohabited during said time, the last time of living together and cohabitation having occurred on February 13, 1922. Second, that defendant had treated the plaintiff with extreme cruelty in the particulars alleged in the complaint and thereby rendered his life miserable, etc.

The record shows that service was secured on the defendant at her home in Evanston, Illinois, where she had resided for some years, by service of summons and copy of the complaint. She did not appear and defend in the Nevada court, either in person or by counsel. On October 20,1931, a decree was duly entered by the district court of Washoe county, Nevada, granting a divorce to the plaintiff on both grounds alleged in his complaint.

During his six weeks’ stay in Reno, Janssen’s bank account at Springfield remained unchanged and his business went on as usual. He transferred his church membership to a church in Reno and paid a poll tax in that city, but up until the time of the trial of this cause in the lower court did not avail himself of the privileges thus obtained, as practically all of his time was spent in Springfield. He opened a bank account there, which at the time of the trial showed a balance of $48.93, and purchased some lots in Reno on a time payment contract, paying $100 as the first payment, and all of the while he had extensive real estate and personal property holdings in Springfield.

^fSfeither at the hearing or at any other time did appellant disclose to the Reno court the previous adjudications of the Illinois court denying him a divorce^ The decree in this cause finding that appellee was living separate and apart from appellant without fault on her part and awarding her separate maintenance was concealed from the Reno court. In ignorance of these adjudications by the court of the marital domicile, the Reno court was induced to grant appellant the purported divorce.

On November 14, 1931, less than a month after he had obtained his Reno decree, appellant filed his petition for modification of the separate maintenance decree in .this cause. Because of the Reno decree he claimed that he should no longer be required to make the payments provided for in the separate maintenance decree. Further he claimed that the Reno decree terminated all of appellee’s rights in his Illinois property. To his petition for modification appellee filed her answer denying appellant’s right to the relief sought and alleging that the Reno decree is void: First, because appellant never established a bona fide residence in Nevada; second, because appellant fraudulently concealed the prior Illinois adjudications from the Nevada court; third, because the prior decrees of the circuit court of Sangamon county were res adjudicata on appellant’s right to divorce; and fourth, because appellant obtained his Eeno decree by fraudulently testifying falsely in support of his complaint for divorce in the Eeno court. The cause was tried below in May, 1932, and on July 1, 1932, the court entered the order appealed from, denying appellant relief.

Appellant has brought the record, by appeal, to this court for review.

Appellant contends that his Nevada decree, obtained upon substituted service and without disclosing the prior adverse proceedings in Illinois, is entitled to full faith and credit and operates to discharge appellant from all of his marital obligations, including his obligation to pay appellee separate maintenance under the terms of the prior decree in this cause.

Appellee contends that the decree of the circuit court of Sangamon county should be affirmed for the following reasons: first, since the jurisdiction of the Eeno court was based upon substituted service its decree is not entitled to full faith and credit under the Constitution of the United .States; and, further, since appellant had previously been adjudged the party at fault by the courts of Illinois, the marital domicile, the Nevada court could not possibly obtain jurisdiction to render a valid decree at his suit.

Second, aside from the jurisdictional question, the Nevada decree is void since appellant’s residence in Eeno was only colorable and the decree was obtained by fraudulently concealing from the Nevada court the prior Illinois proceedings, in which the rights of the parties were conclusively adjudicated; and

Third, even if it be assumed that the Nevada decree could effectively destroy the marital status of the parties it could not possibly affect the rights of appellee in appellant’s Illinois property, nor could it terminate her rights under the Illinois separate maintenance decree.

It was held in Haddock v. Haddock, 201 U. S. 562, 50 L. Ed. 867: ‘ The mere domicile within the State of one party to the marriage does not give the courts of that state jurisdiction to render a decree of divorce enforceable in all the other States by virtue of the full faith and credit clause of the Federal Constitution against a nonresident who did not appear and was only constructively served with notice of the pendency of the action.”

This rule has been elaborated upon and affirmed in Wynn v. Wynn, 254 Ill. App. 254, 259, a similar case, where the court held:

“A decree of divorce entered by a court of a foreign State will be held void by a court of this State where the evidence shows that the complainant practiced a fraud upon the foreign court with respect to the time of his residence, in concealing the address of defendant, which was well known to him, thus causing that court to wrongfully assume jurisdiction. Field v. Field, supra. In Dunham v. Dunham, supra, it was held that where a wife who, upon separation from her husband, goes into another State for the purpose of obtaining a divorce and brings a suit without disclosing the fact that a suit is pending in the State of her former residence, involving the same matters alleged as a cause of divorce, and in which she has appeared, she is guilty of such fraud as to invalidate a decree of divorce obtained by. her, although the pendency of the prior suit could not have been pleaded in abatement nor in bar of her divorce suit.”

In Commonwealth v. Booth, 165 N. E. 29, 30, the Massachusetts court held:

“The courts of this commonwealth are not bound to give a divorce obtained in these circumstances full faith and credit under the Constitution of the United States. Haddock v. Haddock, 201 U. S. 562, 26 S. Ct. 525, 50 L. Ed. 867, 5 Ann. Cas. 1. Principles of interstate comity do not require that recognition be given to a divorce obtained by a court without jurisdiction of the other spouse or of the matrimonial res and doing violence to our own prior adjudication as to the matrimonial fault of the party procuring the divorce.

“The removal of the domicile of the wife from this commonwealth for a period of ten months, followed by resumption by her of the matrimonial domicile, the filing during this period by the defendant of his libel for divorce in Indiana, and the granting of that divorce after the resumption by the wife of the'matrimonial domicile, are not factors requiring the courts of this commonwealth to recognize the Indiana divorce. They do not affect the rule established by Haddock v. Haddock, 201 U. S. 562, 26 S. Ct. 525, 50 L. Ed. 867, 5 Ann. Cas. 1.”

The same rule has also been followed in Lednum v. Lednum, 85 Colo. 364, 276 Pac. 674; Bennett v. Tomlinson, 206 Iowa 1075, 221 N. W. 837.

While the rule in Haddock v. Haddock, supra, is merely a construction of the due faith and credit clause of the Federal Constitution, which the courts of the States are not required to follow in a case of substituted service, the Haddock case having been decided by a divided court, appellant contends strenuously that the rule laid down by the majority of the court is wrong, and states that “the arguments advanced by the learned judges who filed dissenting opinions are strong and forceful and much more effective than anything that could be said by the writer of this argument in behalf of appellant. While the court will doubtless review the Haddock case in its entirety, it might not be out of place, merely for the convenience of the court, to quote some of the things said by the court and referring to the pages of the opinion where such statements may he found. ’ ’

We have carefully gone over all that was said in Haddock v. Haddock, supra, and whether the majority rule, as above cited, is a good rule or a bad rule, the majority rule and the minority rule each hold in accordance with the provisions of the constitution that, V ‘ If a judgment is conclusive in the State where it is rendered, it is equally conclusive everywhere in the courts of the United States.’?

Under this rule, appellee’s decree in the State of Illinois, granting her separate maintenance and finding that appellee was living separate and apart from appellant, without her fault, in Illinois, the place of their domicile, is equally conclusive upon the cpurts_of — — Nevada as upon, the courts of Illinois, and appellee cannot be compelled to defend this decreeJ.n-the-co.nrts of JíSSdiL

The whole argument in the Haddock case is based upon one or the other of the contracting parties to the marriage having changed his or her domicile after the marriage. As to appellee’s rights in the separate maintenance decree in Illinois, no such question is raised. The separate maintenance decree was obtained in the State of the domicile of the marriage relation, by personal service, while each party was residing in Illinois. It is a right of property in appellee, secured by liens upon property in Illinois, and clearly comes within the spirit and language of the Federal Constitution that due faith and credit shall be accorded to this decree by every State in the union. How can appellant by merely removing to a foreign State, temporarily or permanently, destroy this property right?

Indeed, it was held in the early case of Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565, that “where a personal judgment has been rendered in the courts of a state against a nonresident upon constructive service, and, therefore, without acquiring jurisdiction over the person of the defendant, such judgment may not he enforced in another state, in virtue of the full faith and credit clause. Indeed a personal judgment so rendered is, by virtue of the due process clause of the fourteenth amendment, void as against the nonresident even in the state where rendered; and therefore, such nonresident, in virtue of rights granted by the constitution of the United States, may successfully resist, even in the state where rendered, the enforcement of such judgment.” All of the court who acted in the Haddock case would and did concur in this ruling.

But in the ease of a decree upon constructive service in a foreign State, brought to a sister State, the rule in the Haddock case is not mandatory, and the sister State may, from comity, public policy, or other reasons, give full faith and credit to such decrees if it is so disposed. (Dean v. Dean, 241 N. Y. 240, 149 N. E. 844.) The court said in■ that case: “The only question is whether comity or public policy, or, to put it differently, our own interpretation of the conflict of laws, should prompt us to concede a recognition that we are at liberty to refuse.”

But the State of Illinois has a public policy upon this subject matter that is pronounced and has been repeatedly declared in the adjudicated cases. It has been held that due faith and credit will be accorded in divorce cases to the decrees of sister States upon substituted service, where the complainant was a bona fide resident of the State in which the decree was granted and where there was no fraud or imposition upon the court.

In Dunham v. Dunham, 162 Ill. 589, the court held on page 613:

“The result would therefore appear to be, that as a matter of strict legal right, no deception being practiced upon the court and jurisdiction assumed, appellant would have had the right to proceed with her suit in South Dakota and to make her defense in this case at the same time. She did not commence the suit in Illinois, nor did she ask for an affirmative decree of divorce by way of cross-bill. She surely had the right to defend against this suit and to defend her character against the severe charges made against her. She had also the clear right to defend her property rights attacked by the bill. It was, however, the jurisdiction in which she had passed her married life with appellee, and where the alleged misconduct of appellee, set up in her answer by way of recrimination and in her complaint as grounds for divorce, took place. Still, it cannot be said that the South Dakota decree could be denied validity on this ground. At the same time and by the same legal principles appellee could not have appeared and successfully pleaded in the South Dakota court the pendency of the prior suit in this jurisdiction in bar or in abatement of her suit there, and it could not well be contended that any duty was imposed on him to enter his appearance in a foreign court to either contest the same issue which was already pending in the court of his own State, in which both parties had appeared, or to endeavor to obtain a stay of proceedings in such foreign suit until the prior suit was determined. He had not been served in South Dakota, and he was not bound to appear there at the risk of suffering a decree good not only as a dissolution of the marriage, but in personam also. It has, however, been held that in such a case the court in the State where the second suit is brought may, in its discretion, stay the proceedings there pending until the prior suit is determined. (1 Ency. of Pl. and Pr. 770, and cases cited in note. See, also, 23 Am. & Eng. Ency. of Law, 523.) It is also true that in actions strictly in rem, where one court has obtained possession of the res sought to be reached, the process of other courts must pause until that possession be terminated. (Allen v. Supervisors, 11 Wall. 136.) While this rule is not strictly applicable to divorce cases, yet, such cases being regarded as to some extent in rem, an additional reason appears why, in such cases, the court in which the second suit is brought would stay the proceedings unless the rights of citizens of its own jurisdiction would be thereby prejudiced. And this would seem to be the only way to avoid a serious conflict of jurisdiction in such a case, and would evince such a spirit of forbearance and respect for the authority of the courts of a sister State whose jurisdiction had first attached, as might well be expected would be shown by the courts of the several States in the administration of justice under circumstances of so complicated a character. But the circuit court of South Dakota was not afforded any opportunity for the exercise of this discretion. By the concealment of appellant that court had no knowledge that the very questions it was called upon to try in an ex parte proceeding were then at issue and pending in a prior suit in the State where both parties had been domiciled and where both had appeared. More than this, it was denied the knowledge that the very facts upon which its jurisdiction depended were then at issue in such prior suit.

“While the question is one not free from difficulty, we are of the opinion that appellant failed to act in good faith to the court in which her suit was brought in South Dakota, that she was guilty of fraud upon the court and upon the public in obtaining her decree, and that it is therefore void. It would certainly be an anomaly in legal procedure if a party to a divorce suit pending here, and in view of all the facts disclosed by this record, could, in an ex parte proceeding commenced later in time, obtain a decree in another State and make use of it to oust the jurisdiction of the courts of this State, or, rather, to bar their further proceedings in the cause. We do not say that such a result might in no case be reached, for it must be admitted that if, after such disclosure to the court of South Dakota as we hold it was the duty of appellant to have made, that court had nevertheless proceeded with the cause to final decree, as it had the power to do if she had been a bona fide resident there, it might well be that such final decree could have been pleaded as a bar to the further maintenance of this suit. But that point has not been reached in this case, and in no other of a like character to which our attention has been called. As said by Mr. Justice Dickey in Mail v. Maxwell, 107 Ill. 554 (at p. 561): ‘The exercise of sound discretion by the respective courts in our complicated system of government, and the observance by them of a few simple and just rules, has been such that no serious difficulty has been encountered from such a cause,’ — that is, from a conflict of jurisdiction.”

And in People v. Case, 241 Ill. 279, 285, the court held: “This court, in Dunham, v. Dunham, supra, held that when the wife, upon a separation from her husband, goes to another State for the purpose of obtaining a divorce, and brings a suit there for that purpose without disclosing the fact that a suit is pending in this State involving the same matters, she is guilty of such fraud and deception as to invalidate the decree of divorce obtained by her in such other State. Surely the law and decisions on these questions were well known to an attorney of more than twenty years’ practice. ’ ’ This rule has been followed in Feingold v. Feingold, 345 Ill. 203, and Wynn v. Wynn, 254 Ill. App. 254, 259.

It is only when the party to a divorce in a sister State has brought his or her suit upon constructive service, and established a bona fide residence in the sister State and the suit and action is free from any fraud, that the courts of this State will give full faith and credit to the decrees of other states; otherwise, such decrees are void.

Testing the conduct and proofs of appellant by this rule it seems to be shown by the preponderance of the evidence that appellant never went to the State of Nevada with the bona fide intention of establishing a residence in that State. He consulted lawyers about the means of obtaining a divorce in Nevada before going there. His business was in Illinois and he spent but a very few weeks in the State of his adoption, sufficient only to start his suit. After his first trip out there he returned to his business and home in Illinois, returning to Nevada to spend a day or two only at the trial of his cause. He was in Nevada only six weeks on his first trip and testifies he did not then determine to remain in Nevada until he found the climate had “cured his cough” several weeks after his arrival, which shows he did not have a bona fide intention of remaining in Nevada. By his pleadings and proofs in the Nevada court he concealed from the court all of the legal proceedings which had taken place in the courts of Illinois, and thereby deceived the court as to the status of his marriage relation with appellee and her property rights growing out of such proceedings and relations.

We are compelled by the proofs and the law as we understand it to hold that the decree of divorce granted by the Nevada court to appellant was and is void, and the decree of the circuit court of Sangamon county is therefore affirmed.

Affirmed.


text:
    John Cribbet et al., Appellees, v. Fern Hoffman, Appellant.
    Gen. No. 8,693.

      Opinion filed January 16, 1933.
    W. H. Whitaker, for appellant.
    U. G. Ward, Robt. I. Pugh and Philip L. Turner, for appellees.
   Mr. Justice Shurtleee

delivered the opinion of the court.

This was .a bill to foreclose a mortgage which was filed to the November Term, 1931, of the circuit court of Shelby county. It prays for a summons and the summons was issued for the defendants Clara M. Fitzwater, Clara M. Fitzwater, executrix of the estate of Charles E. Fitzwater, deceased, Daisy A. Fitzwater, Chester E. Fitzwater, Reber S. Fitzwater, Noble Fitzwater and Fern Hoffman, as requested by the bill. But no summons was asked for and none issued for the defendants J. E. Dazey and the Findlay Grain & Coal Company, judgment creditors.

The defendants Clara M. Fitzwater, Clara M. Fitzwater, executrix, Chester E. Fitzwater, Reber S. Fitzwater, Noble Fitzwater and Fern Hoffman filed answers to the bill and amended bill, but Daisy A. Fitzwater did not file answer and did not enter her appearance.

The bill and amended bill allege that Daisy A. Fitzwater was in possession and held the legal title to the 460 acres of land described in the bill; that Daisy A. Fitzwater was appointed administratrix of the estate of Charles E. Fitzwater, deceased; that .after a few years a purported will was found and filed for probate by the widow. This was resisted by Daisy A. Fitzwater, who was never discharged as administratrix of the estate of Charles E. Fitzwater, deceased; that before the filing of the bill to foreclose, a suit was pending in court on an appeal involving* the acts of Daisy A. Fitzwater as such administratrix, which case is now pending in Shelby county for trial.

The bill and amended bill allege that Charles E. Fitzwater was indebted to the First National Bank of Findlay and John Cribbet, and on July 7, 1927, executed a certain promissory note, payable to J. E. Dazey, trustee, and John Cribbet, which note was secured by a mortgage on 460 acres of land, described in the bill; that some years subsequent thereto the First National Bank sold its assets to the First State Bank of Findlay. The bill alleges that the indebtedness of July 7, 1927, consisted of a note of $2,999, signed by Charles E. Fitzwater, payable to the First National Bank; a note of the same date for $4,000, payable to John Cribbet, signed by Charles E. Fitzwater; a note of $3,000, dated July 7, 1927, payable to the First National Bank, signed by Noble Fitzwater; a note of $3,000, dated July 7, 1927, signed by Beber S. Fitzwater, and a note of $3,000, dated July 7,1927, payable to the First National Bank, signed by Chester E. Fitzwater; that the three notes of $3,000 each were indorsed by Charles E. Fitzwater; that the two notes, one for $434.88 and one for $338.40, constituted the amount of the indebtedness of $16,772.28, for which the mortgage was given by Charles E. Fitzwater and Clara M. Fitzwater to secure the same, but it is admitted that $772.28 was paid with interest, so that the amount claimed of $16,000, plus the interest, is subject to a first mortgage of $46,000 given to the First Trust Joint Stock Land Bank of Chicago.

The bill alleges that after the execution of the mortgage the grantors, on July 27, 1927, executed a deed for all of said land to Daisy A. Fitzwater, subject to the mortgages.

The bill also alleges that Charles E. Fitzwater left him surviving his widow, Clara M. Fitzwater, Daisy A. Fitzwater and Fern Hoffman, daughters, Chester E., Beber 8. and Noble Fitzwater, sons, his only heirs. It alleges that he died testate and that his will was afterwards probated; that all of the defendants mentioned are insolvent; that all of the land was sold for taxes on September 17, 1931; that no part of the real estate has been redeemed from tax sale, and that the rents from the land in 1931 were not sufficient to pay interest on the first mortgage, amounting to $1,495.

The answer of Fern Hoffman, Clara M. Fitzwater, Clara M. Fitzwater, executrix of the estate of Charles E. Fitzwater, deceased, Chester E., Beber S. and Noble Fitzwater, states that the note of $2,999, dated July 7, 1927, has been paid; denies that J. E. Dazey and John Cribbet were lawfully and legally appointed trustees of the First National Bank, but admits that it sold the assets to the First State Bank.

The answer further admits that the Noble Fitzwater and Beber S. Fitzwater notes were accommodation paper given to J. E. Dazey for the purpose of enabling him “to get by the State examiner”; that no money was turned over on the notes to Noble or Beber S. Fitzwater.

The answer sworn to by Beber S. Fitzwater denies that he signed the notes and there is no contradiction to his testimony. On the contrary, it was supported by other witnesses.

The answer of Fern Hoffman et al. states that J. E. Dazey was a self-appointed trustee; that he practiced a fraud upon the depositors of the First State Bank and committed an act that was contrary to public policy by getting Noble and Chester E. Fitzwater to sign notes of $3,000 each- when they were insolvent.

The answer admits that J. E. Dazey did secure two sets of notes of $16,772.28 each, and charges that it was presumedly to turn into small notes to John Cribbet and the First National Bank and to keep the large note of $16,772.28, secured by the mortgage, for himself.

The answer alleges that J. E. Dazey prepared a mortgage to himself as trustee, whereas the defendants wanted to make the mortgage to the First National Bank, to which they owed money; but it was agreed that if the Fitzwaters would make a note to J. E. Dazey, trustee, that would help him to evade paying taxes and that he would in turn give them more time to pay their obligations.

The answer alleges that the First State Bank was not an innocent purchaser; that they knew as much about the condition as did the First National Bank because the same directors in the First National Bank were the directors that took over the assets for the First State Bank.

The answer charges that there is a suit pending in the Shelby county circuit court by Clara M. Fitzwater to compel Daisy A. Fitzwater to convey the land to her, and further that Daisy A. Fitzwater, administratrix, has not yet been removed from acting as such administratrix of the estate of Charles E. Fitzwater, deceased, and has not settled up as such administratrix.

The answer charges that, before the petition to probate the will of Charles E. Fitzwater, deceased, came on for hearing, Daisy A. Fitzwater presented a petition to the county court to sell the personal property of Charles E. Fitzwater at private sale, and that the next day, December 16, 1930, Daisy A. Fitzwater made a pretended sale of the personal property of Charles E. Fitzwater, deceased, to J. E. Dazey; that she made a final report and asked its approval, to which objections were made and allowed and the sale to J. E. Dazey was set aside.

The answer alleges that J. E. Dazey is a lawyer and banker of Findlay and has been for years engaged to marry Daisy A. Fitzwater, and so dominated her that she refused to deliver up to her mother, Clara M. Fitzwater, the 460 acres of land, for which a suit is now pending in the circuit court of Shelby county.

A decree was entered by the court ordering’ foreclosure of said mortgage for the full amount claimed to be due upon said notes, and finds that the First State Bank of Findlay, “complainant,” was the owner of and entitled to recover the sum of $13,419.90; that complainant John Cribbet was the owner of and entitled to recover the sum of $4,753.67 of the indebtedness; and “it is ordered by the court that Clara M. Fitzwater as executrix of the estate, pay in due course of administration to the complainant herein, twenty days from said date, $18,173.57. And in default of said payment being made, as aforesaid, that the mortgaged premises mentioned in the bill of complaint be sold, or so much thereof as may be sufficient to realize the amount due, including attorney’s fees.”

Clara M. Fitzwater, executrix of the last will and testament of Charles E. Fitzwater, deceased, has brought the record by appeal to this court for review.

In the original record as sent up it was shown that the summons issued in the court below had never been returned and apparently the court had no jurisdiction over certain of the defendants; however, upon motion of appellees to supply the diminution of the record of the summons "returned, taken with the case, we have granted the motion and the record is now complete.

The bill sets out various notes upon which the said Charles Fitzwater had become indebted to the First National Bank of Findlay and Cribbet, one in the sum of $4,000 to Cribbet, three for $3,000 each, given by each one of his three sons to said bank, upon which Charles Fitzwater was a mere indorser, one note of $2,999 and some smaller notes; that without releasing any of said notes a new note was executed in the sum of $16,772.28 covering the total sum of said notes, so that the complainants held two sets of notes covering the said claimed indebtedness.

We have read all of the evidence and examined the entire record. The proof shows, and it seems to be admitted, that the two notes given by Noble Fitzwater and Beber S. Fitzwater for $3,000 each, were each accommodation paper, merely made to show the bank examiner, and that there was no consideration of any kind for said notes. The proofs show that the two notes, one signed by Beber S. Fitzwater and one by Chester Fitzwater, each for the sum of $3,000, were not signed by either of the purported makers, respectively, but the proofs do show that Daisy A. Fitzwater signed one of them. The Chester Fitzwater note was a blank signature note, merely signed in blank by Chester Fitzwater in 1924 and filled out as to all other matter by some person other than the signer, in 1927. Noble Fitzwater testified that in the fall of 1928 in discussing with Dazey the $13,000 that had been taken off from the farm, Dazey told him that his father’s note for $2,999 had been fully paid. Dazey did not contradict this or give any testimony. Daisy Fitzwater denied that she signed Beber S. Fitzwater’s name to the note, but she does not undertake to say whose signature it is.

Upon the trial before the chancellor, appellant Clara M. Fitzwater offered to prove: “I make an offer to prove by this witness that immediately following the signing of this note, that Charley Fitzwater and his wife, he being indebted to his wife for about $9,000, wanted to make a deed to her to protect her for this sum of money and she and her husband, Charley Fitzwater, executed a deed to Daisy Fitzwater thereupon to be held by her and conveyed to her mother on request, and I expect to further show that Daisy A. Fitzwater, who was then very much infatuated with J. E. Dazey, allowed this land to sell for taxes and after she became so infatuated with J. E. Dazey, refused to give up the land and kept all of the rents that she got from the land and allowed this land to sell for taxes for the express purpose and with the threat that if she gave fip this land they would foreclose ttie mortgage and further that Mr. Fitzwater, while she was in California, sent $6,000 to her daughter who was in possession of the land and running it for the purpose of paying the taxes and keeping down the expenses, to also pay the interest.” The offer was objected to, denied by the.court and defendants excepted.

Inasmuch as Daisy A. Fitzwater was, at the' time of this trial, administratrix of her father’s estate, whose duty it was to protect the estate from attack and defend its best interests, we are of the opinion that the proofs were competent. The proofs showed that she had refused to turn over the administratrix’s account to her mother, who had been appointed executrix, and that litigation over her account was pending in court. The purpose of administrators and representatives is to protect estates, not to ravish and destroy them, as the courts have said in many cases. It was error also on the part of the court to order the executrix, who was endeavoring to get possession of the estate, to pay the mortgage debt, and in no manner attempt to exercise jurisdiction over the administratrix who had the estate in her hands.

There are no proofs in this record that the appellees ever advanced any moneys for any of the notes involved in this suit, and in view of the fictitious notes presented and the note paid, it would not have been an abuse of discretion to have required some proof in that line and not depend entirely upon presumptions.

Appellant contends that appellees do not come into a court of equity with clean hands and that a court of justice will not enforce the execution of an illegal contract and will not aid in the division of the profits of an illegal transaction, citing Goodrich v. Tenney, 144 Ill. 422, 428.

Doubtless upon another trial much that has crept into this case will be eliminated and the court will more nearly get at the exact rights of the parties.

For the reasons stated, the decree of the circuit court of Shelby county is reversed and the cause remanded for another trial, not inconsistent with the views expressed in this opinion.

Reversed and remanded.


author: Mr. Presiding Justice Wolfe

text:
    City of Highland Park, Defendant in Error, v. Rhynaldo Calder and Hannah Calder, Plaintiffs in Error.
    Gen. No. 8,482.

      Opinion filed October 18, 1932.
    Rehearing denied and opinion modified February 16, 1933.
    Richard H. C. Miller and Hall & Hulse, for plaintiffs in error; Albert L. Hall, Marshall Meyer and Richard H. O. Miller, of counsel.
    Ernest S. Gail, Corporation Counsel, for defendant in error; Paul C. Behanna, of counsel.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

The City of Highland Park is a municipal corporation in Lake county, Illinois. It filed a bill in the circuit court of Lake county for an injunction seeking to enjoin the defendants from using certain property belonging to them in a manner alleged to be in violation of the zoning ordinances of the City of Highland Park, and also seeking to have certain buildings on said premises torn down and to have a certain business that was conducted on said premises discontinued.

The defendants filed a general demurrer to the bill which the court overruled and they were ruled to answer. The defendants filed their answer admitting certain allegations of said bill and denying others. They say among other things that said property was acquired by them; and that it is beyond the corporate limits and jurisdiction of the City of Highland Park; that said zoning ordinance and amendments thereto have no application to the defendants’ property; that defendants had established a nonconforming use of their property and that no attempt has ever been made to prosecute the defendants for the alleged violation of said zoning ordinance.

The case was referred to the master in chancery to hear the evidence over the objection of the plaintiffs in error, who then insisted and now insist that they were entitled to a trial by the jury. The master filed his report to which the original complainant filed objections. The objections were overruled by the master and were ordered to stand as exceptions to his report. On a hearing before the chancellor the exceptions to the master’s report were sustained and the court ordered both a restraining and mandatory injunction against the defendants as prayed for in the bill of complaint and taxed the cost against the defendants. The case is brought to this court for review, and many reasons are assigned and argued for a reversal of the order and decree entered by the chancellor.

The chancellor, in the decree entered in the original case, made a finding of fact, which we quote, and which is as follows:

“First: That the complainant, the City of Highland Park, is and at all times has been a municipal corporation duly organized and existing under and by virtue of the laws of the State of Illinois and has lawfully and legally adopted the commission form of government and has since the 27th day of October, 1924, duly operated under said commission form of government; that the said complainant did on, to-wit, the 24th day of March, 1922, lawfully pass and adopt the ordinances and amending ordinances set forth in the bill of complaint and at the date of the filing of said bill said ordinances were and are at the date hereof in full force and effect; that by ordinance passed, approved and legally adopted on the 21st day of March, 1924, the premises described as Lot Forty-four (44) in Block One (1) in First Addition to Ravinia Highlands, situated in the County of Lake, in the State of Illinois, were annexed to and became a part of the said City of Highland Park and ever since has been and is within the corporate limits of said city; that by virtue of the said ordinances the aforesaid described premises in question became and were restricted and designated by said ordinances as ‘A’ residence districts and the uses to which said premises in question were restricted are set forth in the said ordinances and appear in the bill of complaint.

“Second: That the defendants on, to-wit, the 24th day of March, 1924, under a certain written contract for the purchase of said premises, dated the 24th day of March, 1924, entered into the possession of the aforesaid described premises and were at the time of the filing of the bill of complaint and are at the date hereof, living upon said premises and that the said premises consist of a lot with a frontage of fifty (50) feet on a public street, with a depth of five hundred (500) feet, the rear of said lot being about one hundred (100) feet in width, which was vacant and unimproved at the time the said defendants took possession thereof.

‘ ‘ Third : That at the time of the acquisition by the said defendants of said property on the 24th day of March, 1924, the said defendants acquired the same subject to the limitations and restrictions contained in the aforesaid ordinances of the City of Highland Park.

“Fourth: That shortly after taking possession of said premises said defendants filed with the Building Inspector of the City of Highland Park plans for the construction of a two story dwelling house on said lot and asked and received from such Inspector a building permit for the construction of such dwelling based on such application and thereafter the said defendants proceeded to construct such building under said permit; that no building has ever been constructed on said lot in accordance with said plans or in substantial accordance therewith; that only the basement walls were completed and that the said defendants roofed over the said basement with a flat board roof, covered with tar and gravel, and that the building so constructed did not conform to the plans except as to the approximate dimensions of the basement ; that since the roofing over of the said basement walls the defendants have been living in and using the same as a temporary dwelling; that said building has never been completed and under certain weather conditions is not habitable, at which times the defendants live in a garage building which they had constructed on said premises; that at no time did the defendants procure from the City of Highland Park, pursuant to the ordinances an occupancy permit for the use of temporary buildings on the said premises, as in and by said ordinances provided and that the continued use of said temporary buildings on the said premises since 1924, for a period of in excess of one year, was, at the time of the filing of the bill of complaint and ever since has been, a violation of the provisions of the said ordinances.

“Fifth: That the said defendants have, in violation of the restrictions of the said ordinances, used the said premises and have conducted a business thereon of general teaming and landscaping, the operation of a poultry yard for profit, the business of raising geese, chickens, guinea fowl and pigeons, and the selling of eggs and poultry, the construction and operation of one room shacks for renting to temporary occupants and the keeping of horses, wagons, scrapers, plows, tools and building materials in connection with the said business operated by the said defendants, all of which is contrary to and in violation of the provisions of the said ordinances restricting the use of the said premises; that at no time did the defendants lawfully establish a non-conforming use within the meaning of Section 8 of the amended ordinances approved March 20, 1926, and that by the acts of the defendants in recognition of the zoning ordinances and the securing of a permit to erect a two story dwelling house on the said premises and the commencing of construction thereof, are estopped from declaring' that they have established a non-conforming use of the premises, pursuant to Section 8 of the said amendment of 1926; that the defendants are subject to the provisions, limitations and restrictions of the ordinance of 1922 and the amendments of 1926, and are using the said premises in violation of the restrictions and limitations contained in said ordinances.” The findings as above set forth clearly state the facts in this case.

The plaintiffs in error insist that the court erred in not granting their demand for a trial by a jury. The Zoning Law, Cahill’s St. ch. 24, If 524(1) (section 69-a of chapter 24 of Smith-Hurd’s Revised Statutes, 1931) provides as follows: “In case any building* or structure is erected, constructed, reconstructed, altered, repaired, converted or maintained or any building, structure or land is used in violation of this Act or of any ordinance or other regulation made under authority conferred thereby, the proper local authorities of the municipality in addition to other remedies, may institute any appropriate action or proceedings to prevent such unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance or use, to restrain, correct, or abate such violation, etc. ”...

In the case of Parmelee v. Price, 208 Ill. 544, 558, the question was raised as to whether the defendant in that case was entitled to a trial by a jury. The court passing on this case say, “Where a new class of cases is directed by the legislature to be tried in chancery, and it appears, when tested by the general principles of equity, that they are of an equitable nature and can be more appropriately tried in a court of equity than in a court of law, the chancellor will have the right, as in other cases in chancery, to determine all questions of fact without submitting them to a jury. ” “ The constitutional provision in question ‘introduced no new rule of law, but merely preserved the right already existing. It does not apply to suits in equity, or to any statutory proceeding to be had in courts of equity. ’ ” The statutory provision of the zoning law expressly provides for a proceeding in equity to restrain and prevent the violation of a zoning ordinance, and it is our opinion that the court did not err in overruling the plaintiffs’ in error demand for a jury trial.

The plaintiffs in error insist that they had established a nonconforming use of their property before the zoning ordinances were passed and, therefore, could not be prevented from carrying on the kind of business that they were conducting on their premises. The evidence shows that on the 21st day of March, 1924, the premises in question were legally annexed to the City of Highland Park; that the defendants did not come into possession of their property until the 24th day of March, 1924, at which time they entered into a written contract of purchase for the premises, which were vacant at that time. Shortly after they took possession of the property they made application to the proper authorities of the City of Highland Park for a permit to build a residence on the premises. This permit was granted; the building operations were stopped because the plaintiffs in error were not complying with the building ordinances. The evidence shows clearly that the plaintiffs in error had not established a nonconforming use of these premises prior to the time that the zoning ordinances were passed. They recognized that fact by making application to the defendant in error for permission to erect buildings on the premises.

The plaintiffs in error insist that the zoning ordinances were not properly passed and are therefore invalid. They are not now in a position to raise that question, as in our opinion the stipulation entered into by counsel in the case on the hearing before the master is broad enough to preclude them from now saying that the ordinances were not properly set forth, valid, existing and properly passed as set forth in the bill of complaint. The court did not err in holding that the ordinances were valid and existing ordinances and properly passed by the City of Highland Park.

The main contention of the plaintiffs in error appears to be that the two ordinances passed by the City of Highland Park before the annexation of the territory that embraced the then property did not apply to and become binding upon them, and to their property without some further act on the part of the city. This contention cannot be maintained in view of the many Illinois cases that have passed upon this question. The plaintiffs in error admit that in a case of an ordinance regulating dramshops, telephone service, and the like in a corporate city when property is annexed, then such ordinance ipso facto applies to the annexed property, but insist there is a vast difference between that kind of an ordinance and a zoning ordinance. On examination of various authorities we find they do not sustain this contention. In the case of McGurn v. Board of Education, 133 Ill. 122, at page 131, the court discusses the question and says: “The annexation of territory to a municipality does not carry with it the necessity of formulating a code of municipal law for the government of the territory annexed. By becoming a part of the municipality, it is ipso facto brought under and made subject to all the laws by which the municipality itself is governed. Those laws extend over and apply to it ex proprio vigore, and do not require express legislative action to give them such application. Here, the instant the territory in question became annexed to Chicago, it became a constituent part of the city, and from that instant became subject to the same laws, the same municipal organization and the same polity which the statutes in force had already provided for the government of the city and its institutions.” People v. Chicago Telephone Co., 220 Ill. 238; Emery v. Hennessy, 331 Ill. 296, 304; Newbold v. City of Stuttgart, 145 Ark. 544, 224 S. W. 993. It is our opinion that at the very time the property of the plaintiffs in error became a part of the City of Highland Park, all of the laws and ordinances applicable to the city became binding and in full force and effect on all of the annexed property; and the property was subject to the zoning ordinances in existence at that time. '

From an examination of the evidence and photographs of the buildings on the premises there can be no doubt that the plaintiffs’ in error property was used in violation of the zoning ordinances and it is our opinion that the court properly found that there was a violation of the ordinances and the City of Highland Park is entitled to the relief as prayed for in the bill. The judgment of the circuit court of Lake county is hereby affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Barry

text:
    Edward C. Eidman, Plaintiff in Error, v. E. F. Drewes, Defendant in Error.
    Opinion filed January 23, 1933.
    Rehearing denied February 25, 1933.
    James O. Miller, for plaintiff in error.
    Herbert F. LiLL,.for defendant in error.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Certain real estate was incumbered by three mortgages of $20,000, $10,000 and $8,000. The mortgagor conveyed the premises to Mr. Drewes, the deed containing a recital that the grantee assumed and agreed to pay all of the mortgages. The second mortgage of $10,000 was foreclosed and at the master’s sale Mr. Eidman became the purchaser. The proceeds of the sale were sufficient to pay the second and third mortgages. Shortly after the sale Mr. Eidman purchased Mr, Drewes’ interest in the real estate together with certain personal property and Drewes executed and delivered to Eidman a quitclaim deed for the premises containing á recital to the effect that Mr. Eidman assumed all existing mortgages and outstanding obligations which were a lien on the premises. That deed is under seal and is dated September 18, 1930.

Eidman sued in assumpsit to recover $600 on the theory that Drewes had falsely represented to him that the interest on the $20,000 mortgage was paid until April 15, 1930, whereas $600 was due on that date for six months’ interest and the same had not been paid. It is quite evident that Eidman accepted the deed from Drewes knowing that it required him to assume and pay the $20,000 mortgage and all outstanding obligations then liens on the premises. That would necessarily include the interest in question.

Having accepted the deed Eidman is bound by the agreement therein contained as effectually as if he had signed the deed. Powell v. Powell, 335 Ill. 533, 537. In an action at law a sealed instrument cannot be impeached for fraud which extends only to the consideration and does not inhere in the execution of the instrument itself. Bach Brick Co. v. City of Chicago, 335 Ill. 101, 104.

Mr. Eidman has misconceived his remedy. He does not claim that there was any fraud in the execution of the deed itself but only as to the consideration. If he feels that he is entitled to relief he must resort to a court of equity to reform the deed so as to relieve him from payment of the interest on the $20,000 mortgage for the six months ending April 15, 1930, and if he is entitled to such relief, he may recover in the same suit the amount of such interest. He was not entitled to recover in this suit in any event and for that reason it is immaterial whether errors occurred in the course of the trial. The judgment is affirmed.

Affirmed.


text:
    Leon Ogent, Appellee, v. St. Clair Guaranty & Title Company, Appellant.

      Opinion filed January 23, 1933.
    Rehearing denied February 25, 1933.
    Kramer, Campbell, Costello & Wiechert, for appellant.
    Beasley & Zulley, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellee agreed to purchase certain real estate for which he was to pay $873 in cash and to assign a note and mortgage for $627. He then saw his attorney and asked him to take the consideration and close the deal for him. The attorney took appellee to appellant’s office and told Mr. Schrader, the manager, that he had no time to prepare papers, and that he wanted him to help appellee to close the deal; that he asked Schrader to take the consideration, close the deal and get a free and clear title for appellee and that Schrader said he would do so; that appellee then gave Schrader the consideration. The attorney says he told Schrader that if there were any charges appellee would pay them. Mr. Schrader procured a warranty deed, filed it for record and turned over the consideration. Appellant brought the abstract down to date, March 11, 1931, and delivered the same to appellee. He took the abstract to his attorney, who looked at it and told him he had a free and clear title.

The abstract did show a free and clear title of record. On March 31, 1931, the Bell Lumber & Supply Service, Inc., filed its bill to foreclose a mechanic’s lien against the premises in question, which resulted in a decree of foreclosure for $977.10. The premises were sold under that decree for $1,166.58. Appellee then sued appellant and recovered a judgment for $1,550.

Appellee knew there was a new house on the lot before he agreed to purchase it and there is no evidence that he or his attorney told Mr. Schrader of that fact, nor is there any evidence that he was expressly informed that he was expected to investigate and determine whether there was any lien that did not appear upon the records. If the attorney thought that Mr. Schrader had agreed to make such an investigation it is strange that he would tell appellee, after examining the abstract, that he had a free and clear title when the certificate to the abstract made no reference to liens not appearing of record. He evidently thought, at that time, that appellant was only employed to examine the records and prepare a summary of what appeared thereon. The duty of an abstracter, as such, is to examine the records and prepare an abstract thereof. In the absence of an agreement to investigate and determine whether there was a lien not shown upon the records he cannot be held liable for a failure to do so. The evidence is wholly insufficient to show that Mr. Schrader agreed to make such an investigation.

But even if he had, he would not be acting within the scope, or apparent scope, of his authority in making such an agreement. He was not shown to have any authority other than such as attaches to the office of secretary and manager. Appellee and his attorney were charged with a knowledge of the law that legal services or legal advice would be required to perform such a contract and that such services or advice could not be furnished by appellant, a corporation, without subjecting itself to a fine or punishment for contempt of court. Cahill’s Ill. St. ch. 32, ¶ 224; People v. People’s Stock Yards State Bank, 344 Ill. 462, 474. We know of no rule of law that would warrant us in holding appellant liable and the judgment is reversed.

Reversed,

The clerk will insert in the judgment the following: “The Court finds that appellant did not agree that it would investigate and determine whether there was a lien against the premises in question that did not appear upon the records.”