author: Mr. Justioe Dove

text:
    Raymond W. Sheets v. Security First Mortgage Co., et al. O. G. Nelson, et al., Appellees, v. Max Liebling, et al., Cross-Defendants. Clarendon Mower, Appellant.
    Gen. No. 9,214.

      Opinion filed September 28, 1937.
    Rehearing denied January 23, 1938.
    Hyer & Gill, of Rockford, for appellant.
    Wilbur E. Johnson, Stanley H. Guyer, E. E. Fell and Miller & Thomas, all of Rockford, for appellees; Charles A. Thomas, of Rockford, of counsel.
   Mr. Justioe Dove

delivered the opinion of the court.

Raymond W. Sheets, trustee, filed his complaint in the circuit court of Winnebago county, seeking to have a 99-year lease upon certain property located in Rockford and described in the complaint declared null and void, and a trust deed thereon executed on May 1, 1929 to secure the payment of notes aggregating $37,500 decreed to be no longer a lien upon the property, and that the title thereto be confirmed in him. This complaint made O. G. Nelson, L. J. Wood, Wilford C. Roland, Axel Swenson and Wilbur E. Johnson,- describing them as a bondholders’ committee, and also Ferdinand Ringoen, receiver for the Security National Bank, Harry Scandroli, Rose Scandroli, The Swords Company, Security First Mortgage Company, trustee, Penfield Mower, Robinson H. Mower and Clarendon Mower, trustees under the Annie Penfield Mower Trust, Max Liebling, Leona Liebling and several other parties, whose rights and interests are not herein involved, parties defendant. Nelson, Wood, Boland, Swenson and Johnson, as the bondholders’ committee, filed their answers and a counterclaim as did also Ferdinand Bingoen, receiver for the Security National Bank, Harry Scandroli, Bose Scandroli and The Swords Company.

After the issues had been made up, a hearing was had, resulting in a decree upon the original complaint granting the relief therein sought. The decree also found that the Mid States Industrial Corporation is the successor to The Swords Company, one of the counter-claimants herein, and that it is entitled to all the rights of The Swords Company in this cause. By the decree a money judgment was rendered in favor of said Industrial Corporation and against Clarendon Mower personally for $10,052.40. The decree also found that the said Clarendon Mower was personally liable to counter-claimants, Nelson, Wood, Boland, Swenson and Johnson, as a bondholders’ committee, in the sum of $24,664.21, and was personally liable to counterclaim-ants, Harry and Bose Scandroli, in the sum of $3,737, and to the counterclaimant, receiver of the Security National Bank, in the sum of $5,854.63. Upon these findings the court rendered a money decree in favor of each of these counterclaimants and against the said Clarendon Mower for these respective amounts and it is from this decree that Clarendon Mower appeals.

The evidence discloses that on July 27, 1928, Christian F. Henry executed a 99-year lease to Max Liebling to certain premises in Bockford upon which in April, 1929 there was in the process of construction a building later known as the Lafayette Hotel Annex. The Security Building Company and The Swords Brothers Company, two construction firms, had furnished labor and material for the construction of this building to Max Liebling and on April 22, 1929 Liebling entered into a written agreement with the Security Building Company, The Swords Brothers Company, (later The Swords Company to which the Mid States Industrial Corporation is successor) and the Security First Mortgage Company by the provisions of which, said mortgage company, as trustee, obligated itself to negotiate a bond issue in the principal sum of $37,500 to be secured by the leasehold estate of Liebling, that upon the sale of said bonds the proceeds thereof were to be used to complete the construction of the annex building and the balance was to be applied upon the indebtedness due the Security Building Company and to The Swords Brothers Company. It was recognized that the amount which the Security Building Company and the Swords Brothers Company would receive would not be sufficient to liquidate the amount due these companies and Liebling, therefore, obligated himself to execute bonds secured by a lien upon the leasehold estate, junior only to the lien of the said $37,500 bond issue for such sum as would remain due these companies.

Pursuant to the terms of this agreement, a trust indenture and bonds were executed bearing the date^of May 1, 1929. The bonds aggregated the said sum of $37,500 and matured in amounts of $5,000 annually, with a final maturity of $7,500 due May 1, 1936. Of the principal sum, $27,500 remained unpaid at the time of the institution of this proceeding. These bonds so secured were sold to various persons and at the time the complaint was filed were held and owned by the sev-. eral counterclaimants except Swords Brothers Company. This counterclaimant (Mid States Industrial Corporation, successor to said Swords Brothers Company) at the time of the institution of this proceeding held a note, executed by Max Liebling, to said Swords Brothers Company in the sum of $7,291.19, dated April 22, 1929 and which was executed by Liebling to said Swords Brothers Company pursuant to the agreement of April 22, 1929. The other construction firm, the Security Building Company, is not a party to this proceeding inasmuch as its indebtedness has been settled. The agreement of April 22,1929 provided that Liebling would assign his 99-year leasehold to Security First Mortgage Company to secure the payment of said bond issue and for the benefit of the bondholders under said trust indenture and for the benefit of Swords Brothers Company and said Security Building Company under their junior lien until all indebtedness due should be fully paid and discharged.

On October 17, 1929, Max Liebling and Leona Lieb-ling, his wife, executed the following assignment, viz.: “For and in consideration of the sum of One Dollar and other good and valuable considerations to us in hand paid, receipt of which is hereby acknowledged, we, Max Liebling and Leona Liebling, husband and wife, of Rockford, Illinois, do hereby quit claim, assign, sell, transfer and set over unto Penfield Mower, Robinson H. Mower and Clarendon Mower, Trustees, known as Annie Penfield Mower Trust, all of our right, title and interest of every kind and nature in and to a certain ninety-nine year lease, bearing date July 27, 1928, between Christian F. Henry, a widower, as Lessor, and Max Liebling as Lessee, which lease was filed for record in the office of the Recorder of Deeds of Winnebago County, Illinois, on December 11, 1928, at nine o ’clock A. M. in Book 332 of Mortgages, page 124, and also all of our right, title and interest of every kind and nature in and to a certain contract and trust agreement entered on the 22nd day of April, 1929, between Max Liebling, Security Building* Company, Swords Bros. Company and Security First Mortgage Company, covering said ninety-nine year leasehold interest on the property known and described as: Lot Seven (7) in Block Twenty Seven (27) as designated upon the Plat of that part of the Town (now City) of Rockford on the West side of Rock River. It is expressly understood that this assignment and sale is made subject to all of the terms, conditions, restrictions, covenants and agreements contained in said contract and trust agreement, and to all of the encumbrances on said property and leasehold therein set forth, and to all of the liabilities therein set forth, and upon the further express agreement that the assignees herein will assume and accept all of the conditions, restructions, covenants, agreements, encumbrances and liabilities as set forth in said contract and trust agreement, and will consent and agree to carry same out and to perform same according to the terms of said contract and trust agreement as a part of the purchase price. It is further expressly understood that the assignees herein will consent and agree to hold the assignors herein from and after the date of this assignment free and harmless from any and all claims, liabilities or encumbrances as set forth in said contract and trust agreement.”

It further appears from the evidence that the Security First Mortgage Company, Security Building Company and the Swords Brothers Company executed their written consent to said assignment as follows: “We, the undersigned, Security First Mortgage Company, an Illinois Corporation, Trustee, Security Building Company, an Illinois Corporation, and Swords Bros. Company, an Illinois Corporation, parties in and to a certain contract and trust agreement entered into between us and Max Liebling on April 22nd, 1929, do hereby irrevocably consent and agree to the assignment, sale, transfer of the interests of Max Liebling and Leona Liebling, his wife, in and to the ninety-nine year leasehold in, on and to the real property and improvements thereon as described in said trust agreement, and to all of their right, title and interest in and to said trust agreement, to Penfleld Mower, Robinson H. Mower and Clarendon Mower, Trustees, known as Annie Penfield Mower Trust, it being expressly understood that the consent of the undersigned is made upon the condition that the assignees assume and accept all of the obligations of the said Max Liebling and Leona Liebling, his wife, under the contract and trust agreement above referred to, as part of the purchase price, and agree to carry out the trust agreement in all of its conditions and terms.”

The acceptance of said assignment is as follows: “The undersigned, Annie Penfield Mower Trust, by Clarendon Mower, Trustee, does hereby irrevocably consent to and accept the assignment of Max Liebling and Leona Liebling, his wife, of all of their right, title and interest in and to a certain ninety-nine year leasehold on the following described property: Lot Seven (7) in Block Twenty-seven (27) as designated upon the Plat of that part of the Town (now City) of Rockford on the West side of Rock River, laid out on the West part of the South West fractional quarter of Section number 23 Township 44 North Range 1 Bast of 3rd Principal Meridian, which lease bears date July 27, 1928, and is recorded in Book 332 of Mortgages, page 124 in the Recorder’s Office of Winnebago County, Illinois, and all of their right, title and interest in and to the trust agreement and contract entered into between Max Liebling, Security First Mortgage Company, Swords Bros. Company and Security Building Company on April 22, 1929, covering the above described property. And does hereby for and in consideration of said assignment and sale and as part of the purchase price thereof, irrevocably bind itself and agree to carry out and does hereby assume all of the conditions and agreements, encumbrances and obligations -as set forth in said contract and trust agreement, according to its terms. And does hereby assume all of the obligations of Max Liebling and Leona Liebling therein set forth, covering said property and leasehold, and does hereby agree to hold said Max Liebling and Leona Liebling free and harmless from and after the date, of this acceptance from any and all of the encumbrances and obligations as set forth in said contract and trust agreement. Dated this 17th day of October, A. D. 1929. Annie Penfield Mower Trust By Clarendon Mower Trustee. (Annie Penfield Mower Trust Trustee’s Seal).”

Subsequent to said assignment and the acceptance thereof, Clarendon Mower collected the rentals from the property and applied the same regularly upon the indebtedness as provided in the contract of April 22, 1929, until default was made under the bond issue, which occurred in May, 1932. These rentals were used to pay the interest on the bond issue and out of it, as already stated, $10,000 of the principal was retired by Clarendon Mower.

It further appears from the evidence that on the 15th day of December, 1927 Annie Penfield Mower executed the trust agreement involved herein. By its terms it conveyed a considerable amount of real and personal property to Penfield Mower, Robinson H. Mower and Clarendon Mower as trustees and authorized and directed them to take possession of said property and to sell, convey, invest, reinvest and vary the investments and reinvestments as they, in their own discretion, should desire and to the same extent that any owner could deal with his own property. The trustees were further granted full power to encumber, mortgage, pledge or otherwise dispose of said trust estate and provided that in no case should anyone dealing' with said trustees in relation to the trust estate be obliged to see to the application of the purchase money or be obliged to see that the terms of the trust had been complied with, or be obliged to inquire into the expedí-eney, legality or propriety of any act of the trustees. This trust agreement further provided that any action, contract, deed, trust deed, mortgage,, lease or other instrument in writing executed by or any action taken by said trustees in relation to said property should be conclusive evidence in favor of every person dealing with said trustees that at the time of the action the trust agreement was in full force and effect, that such action was taken in accordance with the trusts, conditions, limitations and terms contained in the trust agreement and that the trustees were duly authorized and empowered to act and execute such deed, trust deed, lease, mortgage or other instrument. This trust agreement further provided that the income from such trust property should be used for the support and maintenance of Annie Penfield Mower during her lifetime and the balance, not so used, should be distributed equally between Penfield Mower, Robinson H. Mower and Clarendon Mower. The instrument further provided that upon the death of the donor the trust should be liquidated and the corpus divided between the said Penfield Mower, Robinson H. Mower and Clarendon Mower. The trust agreement further provided that the trustees should procure a seal with the words “Annie Penfield Mower Trust, Trustees’ Seal,” which shall appear upon all conveyances and other instruments dealing with third persons, and further provided that while a majority of the trustees is necessary for any trustees ’ action, however, inasmuch as Penfield Mower resided in Massachusetts, Robinson H. Mower in California and Clarendon Mower in Rockford, Illinois and is by reason thereof the only resident trustee, it was determined advisable to authorize Clarendon Mower alone to sign the trust name and execute warranty deeds, contracts, quit claim deeds, mortgages or other instruments in writing pertaining to the real estate of the trust.

As before stated, the circuit court refused to subject the trust assets to the payment of the amount found due the counterclaimants and exonerated the nonresident trustees from any personal liability. From that portion of the decree, which refused to subject the trust assets to the satisfaction of the amount found due the counterclaimants, they have perfected a cross appeal and insist that the Annie Penfield Mower Trust is liable for the payment of the amounts so found due since the obligations were contracted by Clarendon Mower pursuant to authority granted him in the trust agreement. Clarendon Mower was the only resident trustee. There is nothing- in the trust agreement which authorized him to execute for or on behalf of his trust the instruments in question in this case. From the evidence it appears that Clarendon Mower undertook to enter into and close a transaction for the purchase of a valuable property and to subject his trust to the payment of extensive obligations. Before he could legally do so, he must have been given such power clearly and affirmatively by the instrument establishing his trust. This instrument vested in the trustees jointly a very broad discretionary authority to invest, handle and reinvest the property which constituted the corpus of the trust, but this power and authority was vested in them jointly and not individually. For instance the 16th paragraph provided: “A majority of said trustees shall be necessary for any trustees' action” except Clarendon Mower, in the name of the trust and in the name of the other trustees, may “sign all deeds, conveyances, mortgages, assignments, contracts or other instruments in writing of any kind pertaining to the real estate of said trust estate and his signature with the trustees ’ seal attached shall be a valid and complete signature by the said trustees and the trust estate.” A consideration of this provision indicates clearly that the donor had no intention whatever of fixing discretionary authority in one trustee. By this clause she provided that a majority of the trustees should be necessary for each trustee’s action except the purely ministerial action of signing and affixing the form of the signature. In the case of Northern Trust Co. of Chicago v. Thompson, 245 Ill. App. 20, the court used the following language, viz.: “In 26 R. C. L. 1372, § 232, it is said: ‘It is an elementary principle in the law of trusts that in the execution of a trust, the trustee is bound to comply strictly with the directions contained in the trust instrument, defining the extent and limits of his authority, and the nature of his powers and duties.’ In 3 Pomeroy’s Bq. Juris. (4th Ed.), § 1062, it is said: ‘ The trust itself, whatever it be, constitutes the charter of the trustee’s powers and duties; from it he derives the rule of his conduct; it prescribes the extent and limits of his authority; it furnishes the measure of his obligations.’ In 2 Perry on Trusts (6th Ed.), § 475, it is said: ‘In a court of law, the trustee is the absolute owner of the estate, and he can exercise all the powers of ownership; . . . but in equity the cestui que trust is the owner, and the question in equity is, how far the trustee can act without exceeding his powers, and rendering himself responsible to the cestui que trust, ... In trusts of a more particular and active kind, the general power of the trustee is limited to the exact performance of the duty imposed upon him. The duty and power given in such trusts must be strictly performed. ’ ” In 1 Perry on Trusts (6th Ed.), sec. 411, cited with approval in Dingman v. Boyle, 285 Ill. 144, it is said: “Where there are several co-trustees, they all form, as it were, one collective trustee, therefore they must perform their duties in their joint capacity, even in making a purchase. In law there is no such person as an acting’ trustee apart from his co-trustees. If one trustee who has accepted refuses to join in the proposed act, or is incapable, the others can not proceed without him but an application must be made to the court.”

It is not necessary for us to determine whether the trustees under the trust agreement had authority to purchase this leasehold estate or to assume the payment of the incumbrances and obligations placed thereon. Granting that they were so authorized, it does not follow that one trustee had any such power. "What the trust instrument did provide was that a majority of the trustees shall concur in any action in order to bind the trust, that the trustees jointly controlled the investment, reinvestment and disposal of the trust assets, but that the resident trustee had the authority to execute the instruments pertaining to the real estate of the trust. Such is the meaning of the language used. Furthermore, the trust agreement provided that the signature of the resident trustee should be in the name of the trust estate and the other trustees. The acceptance signed by Clarendon Mower was signed in the name of the trust by the resident trustee and not signed in the name of the other trustees. Counsel for cross-appellants argue that this same paragraph of the trust agreement provides that the signature of the resident trustee, when so attached, shall be binding upon the trustees and trust estate.' This means, when taken in connection with the language that precedes, that when an instrument, the terms of which have been agreed •upon and authorized by a majority of trustees is so executed that then the signature of the resident trustee is an effective signature to the transaction. We think the chancellor very properly exonerated the nonresident trustees from any liability herein and correctly held that the trust assets are not subject to the payment of the several amounts found due the counter-claimants and correctly refused to make said money judgments a lien upon the assets of the Annie Pen-field Mower Trust. L

The question then remains whether it was error for the chancellor in this proceeding to decree that Clarendon Mower was personally liable to the several counter-claimants, appellees herein, upon said contract of acceptance and to decree a money judgment against him personally. The determination of this question involves the construction of the assignment to Penfield Mower, Robinson H. Mower and Clarendon Mower, trustees, by Max Liebling and Leona Liebling and the acceptance thereof by Clarendon Mower, trustee, on October 17, 1929. In support of their contention counsel for appellant insist^ that the lower court never acquired jurisdiction of the appellant, Clarendon Mower, in his individual capacity and never acquired jurisdiction of the subject matter. The record discloses that following the filing of the original complaint, a summons was issued naming Security First Mortgage Company, trustee, Max Liebling, Leona Liebling, Penfield Mower, Robinson H. Mower and Clarendon Mower, trustees under the Annie Penfield Mower Trust, and others as defendants. The return of the sheriff discloses that the summons was duly served by reading the same to the within named Clarendon Mower, trustee, under the Annie Penfield Mower Trust, on August 7, 1934. This defendant answered the original complaint, his answer commencing as follows: “This defendant, for himself alone, as trustee under said Annie Penfield Mower trust, answering the complaint says.” The original counterclaims prayed that the court should determine the amount due the counterclaimants upon their several bonds and that Max Liebling, Leona Liebling, Penfield Mower, Robinson H. Mower and Clarendon Mower, trustees under the Annie Penfield Mower Trust, be adjudged to be personally liable to the counterclaimants for the payment of the sums so found to be due. The answer of appellant to the several counterclaims contains the following: “Clarendon Mower, Trustee, solely in his own behalf and not for either or both of the other trustees, says . . . And this defendant further answering denies that the said Annie Penfield Mower Trust or the trustees thereof, either individually or jointly, assumed or agreed to pay or become liable for, personally or otherwise, the bonds in question in this case.” While appellant insists that he never answered or otherwise entered his appearance as an individual, it is apparent from the pleading’s that the counterclaimants were seeking to recover a personal judgment against him and he denied the allegations of these counterclaims and insisted that he was not personally liable. With the record in this condition, it is immaterial, we think, whether process was personally served upon him or not inasmuch as he, by his reply to these counterclaims, submitted himself to the jurisdiction of the court and denied his individual liability, nor do we think there is any merit in appellant’s contention that the court did not have jurisdiction of the subject matter. Our present Practice Act provides: ‘ ‘ Subject to rules any plaintiff or plaintiffs may join any causes of action, whether legal or equitable or both, against any defendant or defendants ; and subject to rules the defendant may set up in his answer any and all cross-demands, whatever, whether in the nature of recoupment, set-off, cross bill in equity or otherwise, which shall be designated counterclaims. But the court may, in its discretion, order separate trials in any such causes of action or counterclaims if they cannot be conveniently disposed of with the other issues in the case. Legal and equitable issues may be tried together where no jury is employed. ’ ’ Section 44, ch. 110, Ill. State Bar Stats. 1935, ft 172; Jones Ill. Stats. Ann. 104.044. The record fails to disclose that appellant at any time ever sought to have a separate trial of the right of appellees to recover a money judgment against him personally. If he desired a jury trial, the Practice Act provided how he could have secured one. He cannot now, for the first time, raise in this court a question which he did not present to the chancellor. It should not be overlooked that the original proceeding was properly commenced in equity, having for its purpose the cancellation of a 99-year lease and the title to the premises involved confirmed in the original complainant. To this complaint appellant, as well as appellees, was made a defendant. A court of equity properly acquired jurisdiction and it is a familiar principle that when a court of equity acquires jurisdiction for one purpose, it acquires it for all purposes and will retain the case to do complete justice between the parties and will determine all their rights, not only with reference to the matters directly in controversy, but as to all matters germane thereto. Baker v. Salzenstein, 314 Ill. 226.

Counsel for appellant next insist that no personal liability on the part of Clarendon Mower was intended or contemplated by the parties and that the acceptance of the assignment was by the trustees in a representative capacity only. In this connection counsel cite and rely upon the Equitable Trust Co. of Chicago v. Taylor, 330 Ill. 42. It appeared in that case that the instrument creating the trust expressly provided that the trustees should in no way be obligated personally in carrying out any provision of the agreement and that when the trustee applied for and procured the loan upon which the suit was based, he produced the instrument creating the trust and the creditor was fully apprised of its terms which limited the individual and personal liabilities of the trustees. The facts in that case are clearly distinguishable from the facts in' the instant case. In Austin v. Parker, 317 Ill. 348, the court said: “The rule is well settled that a guardian, executor, administrator, trustee or other person acting in such relation in a contract with third persons binds himself personally, unless he exacts an agreement from the person with whom he contracts to look to the funds of the estate exclusively: and this is true regardless of whether the charge is one for which the trustee may be reimbursed from the trust estate, as that is a matter wholly between him and the beneficiaries of the trust. ’ ’ Nowhere in the acceptance executed by Clarendon Mower did it provide for the release of his personal liability. It is argued by appellant that the bonds secured by the trust deed are dated May 1, 1929, that they are separate and apart from the contract and trust agreement of April 22, 1929, and that therefore the bonds were not, nor were they intended to be, an obligation under the contract and trust agreement of April 22,1929, which appellant accepted. An examination of the several instruments will disclose that the assignment and acceptance were executed on October 12, 1929. At this time the liability of Max and Leona Liebling under the bond issue and under the outstanding note to Swords Brothers Company were fixed and definite in amount and terms and had been since May 1, 1929. The trust deed was a matter of record. In the contract and trust agreement of April 22, 1929, the amount of indebtedness and the terms and conditions of the trust deed securing the bonds were described and set forth as was also the obligation of Max Liebling and Leona Liebling to Swords Brothers Company, subject only to fixing the amount at a later date and whatever that amount was afterward determined to be was by the agreement of April 22, 1929 established as a lien upon the leasehold, junior only to the first lien of the Security First Mortgage Company. In our opinion, from the language of the assignment, consent and acceptance, the assignee in accepting the covenants, agreements, incumbrances and liabilities of the -agreement of April 22, 1929 obligated himself to pay the indebtedness due to the Swords Brothers Company and the indebtedness due upon the bonds issued under the trust indenture. The lien and the incumbrance of the Swords Brothers Company were created by the contract of April 22,1929 and the lien and the incumbrance in favor of the bondholders were created and established by that agreement as well as by the trust indenture of May 1,1929. Other conditions, agreements and obligations were imposed upon Max Liebling and Leona Liebling under this contract and trust agreement along with the indebtedness due appellees and the agreement to carry out and assume all of these conditions, incumbrances and obligations was the most direct manner in which such assumption could be undertaken. It has been held that where there is a conveyance of mortgaged property by the mortgagor to one who assumes and agrees to pay the mortgage debt by the provisions of the deed executed to them, that then both the mortgagor and grantee are liable to the holder of the note and mortgage as principals. Webster v. Fleming, 178 Ill. 140.

Counsel for appellant finally insist that the chancellor erred in refusing to admit in evidence a certain exhibit executed by Max Liebling, Leona Liebling and Clarendon Mower on July 17, 1929 and in refusing to admit in evidence conversations between Liebling, Mower and their agents, all held out of the presence of appellees or any one of them, and cites Farmers & Merchants Bank v. Narvid, 259 Ill. App. 554. It appears in the Narvid case that the mortgagee sued him on an assumption clause contained in the deed, wherein Narvid obtained title to the real estate by a deed from the mortgagor. Narvid was permitted to testify as to a conversation he claimed to have had with the mortgagor at the time the deed was executed, in which he stated he refused to assume and agree to pay the incumbrance. It appears that this conversation between the mortgagor and Narvid was held in the presence of the mortgagee and for that reason was probably binding upon him. The rule is familiar that where parties to a contract have reduced their agreement to writing, parol evidence shall not be received to alter or contradict the written instrument. And this rule applies to controversies between the parties and those claiming under them and where there is no ambiguity in the terms of a written instrument, then the instrument itself is the only criterion of the intention of the parties and its construction is not open to oral evidence. Fowler v. Black, 136 Ill. 363. In our opinion, the intention of the parties to this assignment, consent and acceptance must be ascertained from the instruments themselves and the trial court did not err in his refusal to admit the proffered evidence.

Finding no error in the record, the decree of the circuit court will be affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice O’Connor

license: Public Domain

text:
    Emcee Corporation, Appellant, v. H. Kay George, Appellee.
    Gen. No. 39,567.

      Opinion filed November 8, 1937.
    Rehearing denied January 26, 1938.
    Leonard & Leonard, of Chicago, for appellant; Don H. McLucas, of Chicago, of counsel.
    H. Kay George, pro se.

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

August 4, 1936, plaintiff brought an action of re-plevin against defendant to recover certain specified personal property. Defendant was served but the property was not taken on the writ. The writ was returnable August 17. On that day an order was entered postponing the case until the next day, and at that time an order appears in the record reciting that the cause came on in regular course for trial, and plaintiff failing to appear suit was dismissed for want of prosecution. Four days later, September 22, an order was entered reciting that plaintiff’s motion to set aside the order of dismissal of September 18 was sustained, and it was further ordered that plaintiff be given leave to file an amended statement of claim instanter, and this was done. One count was in re-plevin, the same as in the original statement of claim, and the second in trover.

Six days thereafter, September 28, the same amended statement of claim and order of court, together with an affidavit, appear in the record. In the affidavit an attorney swears that on September 25 he served defendant with the order of court of September 22 and with the amended statement of claim by delivering a copy of them to him. The document, however, which purports to be a copy of the order entered September 22, is not a true copy. It shows only that part of the order which granted plaintiff leave to file an amended statement of claim, but omits the part which vacated and set aside the order of dismissal of the suit entered September 18.

The next that appears from the record is that on October 29th an order was entered reciting the coming on of the cause, and “it is considered by the Court that the plaintiff have judgment on the finding,” and that it recover $565.92 from defendant and that an execution therefor issue “in trover.” November 16th there appears in the record a notice and petition that defendant will appear before the court and move that the order of September 22 and the judgment of October 29 be vacated and set aside. A copy of the petition' is in the record and there is an affidavit that the notice and petition were served by mailing them to attorneys for plaintiff on November 13. The petition is verified by defendant and purports to set up proceedings theretofore had in the cause, including the order of September 22 and the judgment of October 29, and it is averred that the order and judgment were entered without notice to defendant. Defendant makes no mention of any meritorious defense that he may have had. On the same day, November 16, an order was entered, on defendant’s motion, setting aside the order of September 22 and the judgment of October 29. November 25, nine days thereafter, there appears in the record a verified petition filed by plaintiff reciting the various steps taken in the cause, most of which have heretofore been referred to. And further, that plaintiff had caused notice to be served on defendant of the filing of the amended, statement of claim, as required by the rule of the municipal court; that plaintiff did not receive notice that defendant would appear before the court on November 16 and move for the vacation of the order and judgment as above stated, until the 17th of November, because the letter was misdirected. The petition further set up, “That the defendant has at no time entered his appearance in the above entitled action.” And the prayer was that the order of November 16 be vacated and set aside. On the same day, November 25, an order was entered on motion of plaintiff, vacating the order of November 16. Two days thereafter there appears in the record a notice and petition on behalf of defendant that he will move to vacate the order of November 25, and that the order of September 22 and judgment of October 29 be again vacated and set aside. On that day an order was entered postponing the matter to December 1, and on December 1 an order was entered reciting that the cause came on for hearing upon defendant’s motion, and that the motion was overruled and denied.

The case then rested for 17 days,'when defendant again, served another notice on attorneys for plaintiff and filed a petition in which he prayed that the judgment and all orders entered in the cause be vacated and set aside and that plaintiff’s suit be dismissed. The petition, wMch is sworn to by deféndant, sets up the entry of the judgment and that afterward, on December 9, “after diligent investigation and inquiry, he did discover that the plaintiff ... is a foreign corporation doing business in this State and that the alleged business transaction out of which this suit is alleged to have arisen has taken place in the State of Illinois”; that plaintiff, a California corporation was not authorized by the Secretary of State of Illinois to engage in business in this State. No suggestion is made that defendant has a meritorious defense. Afterward, on January 5, 1937, the court entered an order sustaining defendant’s motion to vacate the judgment of October 29, and “ It is further ordered by the Court that leave be and the same is hereby given defendant to file appearance instanter, and cause to be tried on merits. ’ ’ Just why it was necessary for defendant to file an appearance we are unable to understand. He had been in court on numerous occasions, filing notices, motions and petitions, and obviously the first of these was the entry of appearance and no further order in this regard was necessary or proper. It is from the order of January 5 that plaintiff appeals.

The record discloses that after the various orders were entered, the court on December 1st heard defendant’s motion to vacate the order of September 22, the judgment of October 29 and the order of November 25, and after such hearing the motion was denied. This was a final, appealable order, and we think the court ought not to have entertained the further motions of defendant to vacate the judgment and other orders. Greenstone Furniture Co. v. Oliver, 233 Ill. App. 184; People v. Wells, 255 Ill. 450. But in any event, even if we should be of opinion that defendant might thereafter file a petition to vacate the judgment and orders under the provisions of section 21 of the Municipal Court Act by “setting forth grounds for vacating, setting aside or modifying the same, which would be sufficient to cause the same to be vacated, set aside or modified by a bill in equity,” in the instant case, the court was wholly unwarranted in disturbing the judgment and other orders on January 5, 1937, because the petition in support of the motion filed by defendant set up no defense. Sec. 125 of the Business Corporation Act of 1933, ch. 32, p. 819, Ill. Rev. Stat. 1937; Jones Ill. Stats. Ann. 32.128, provides that “No foreign corporation transacting business in this State without a certificate of authority shall be permitted to maintain an action at law ... in any court of this State until such corporation shall have obtained a certificate of authority. . . .

“The failure of a foreign corporation to obtain a certificate of authority to transact business in this State shall not impair the validity of any contract or act of such corporation.” Under this section, if we assume that plaintiff, a foreign corporation, was transacting business within this State without having obtained a certificate of authority from this State, contrary to the provisions of the statute, we think the suit ought not to be dismissed because if it should thereafter" obtain such certificate it could then proceed with the suit. Moreover, the allegations of the petition are wholly insufficient to show that plaintiff was transacting business in this State. The statute does not apply to isolated transactions. Alpena Cement Co. v. Jenkins & Reynolds Co., 244 Ill. 354. Our statute regulating foreign corporations transacting business in this State has no application to interstate commerce. London Guaranty & Accident Co., Ltd. v. Watte, 234 Ill. App. 497; Lehigh Portland Cement Co. v. McLean, 245 Ill. 326. Furthermore, the judgment ought not to be set aside under the facts disclosed by the record in the instant case unless defendant had a meritorious defense, and no attempt was made by defendant in Ms petition to set up any such defense.

The order of January 5,1937, of the mumcipal court, vacating the judgment of October 29, 1936, is reversed.

Order reversed.

McSurely and Hatchett, JJ„ concur. .


text:
    Iris Mildred Street, Appellant, v. Board of Education of School District No. 113, Cook County, Illinois, Appellee.
    Gen. No. 39,789.
    Opinion filed January 10, 1938. .

      John C. Cowing and Palmer DiGtulio, both of Joliet, for appellant.
    Thomas J. Courtney, State’s Attorney for amicus curiae; Jacob Shamberg, William J. Tuohy and William P. Kearney, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against defendant to recover damages claimed to have been sustained on account of her wrongful discharge as a teacher in a public school by defendant Board of Education. Defendant filed a written motion to strike the complaint on the'ground that it did not state a cause of action; the motion was allowed, the complaint stricken, the suit dismissed and plaintiff appeals.

In the complaint it was alleged that plaintiff was a teacher by profession and held a Limited, Elementary State School Certificate authorizing her to teach in the 10 lower grades of the public schools of Illinois; that the certificate was issued to her after she had been examined by the State Examining Board and also by the County Superintendent of Schools of DuPage county; that the certificate was for a period of .four years — from November 13, 1936, to November 13, 1940; that after the issuance of the certificate on the first of December, 1936, the defendant, Board of Education of School District 113, Cook county, examined plaintiff and found her qualified to teach in the schools of District No. 113 of Cook county; that she was employed as such teacher by defendant, Board of Education, to teach from the first of December, 1936, to May 28, 1937, and performed her duties as such until January 5, 1937, when she was discharged by defendant.

Plaintiff contends that the certificate issued to her to teach in DuPage county schools authorized her to teach in every school district, including those located in Cook county, and in support of this her counsel cite sections 1 and 2, pars. 481 and 482, Smith-Hurd, E. S. 1935 (Ill. State Bar Stats. 1935, ch. 122, M 291 and 292; Jones Ill. Stats. Ann. 123.241 and 123.242), and counsel further say that plaintiff was not required to hold a certificate issued by the Superintendent of Schools of Cook county, citing pars. 15 and 16, sec. 15, ch. 122, and par. 12, sec. 114 of the same chapter (Ill. State Bar Stats. 1935, ch. 122, Iffl 15, 16, 122; Jones Ill. Stats. Ann. 123.016, 123.017, 123.129).

In 1929 the legislature passed an act in relation to certification of teachers, consisting of 21 sections, which repealed the Act of 1913 on the same subject. The first and second sections of that act are found in paragraphs 481 and 482, above referred to. By the first section it is provided that no one shall be authorized to teach in the common schools of the State or receive any part of the public school fund for teaching who does not at the time she enters upon her duties as a teacher hold a certificate of qualification covering the period of her employment, granted by the Superintendent of Public Instruction, by the State Examining Board, and a county superintendent as hereinafter provided, or, by the board of education of a city having a population exceeding 200,000 inhabitants: Provided, however, that the provisions of this Act relating to limited State certificates shall not apply to counties having a population exceeding 500,000 inhabitants.”

Section 2 provides: “All certificates issued under this act shall be State certificates valid in every school district coming under its provisions and shall be of two grades: (a) Those unlimited in time, . . . (b) Those limited in time, issued by the State Examining Board and a county superintendent and designated as . . . limited elementary school certificate.” It is obvious that the Act of 1929 does not apply to limited elementary school certificates issued in Cook county, for the reason that section 1 expressly provides, “this Act relating to limited State certificates shall not apply to counties having a population exceeding 500,000 inhabitants.” This seems to be conceded by counsel for plaintiff, for in considering the intention of the legislature expressed in the proviso of section 1 they say: “We contend that it was the intention of the legislature in so far as certificates issued in Cook county are concerned, that the provisions, or in other words, the requirements, of the act relating to limited certificates shall not apply. This does not imply, however, that limited certificates issued in DuPage county shall not be valid in Cook county. On the contrary, under the provisions of section 2, all certificates, unlimited and limited, are expressly made valid in all school districts coming under the provisions of the Certification Act.

“It follows then that as the certificate referred to in plaintiff’s complaint is a state certificate, valid in every school district coming under the Certification Act and the defendant school district is a district coming under the provisions of the act, that the certificate alleged to be held by plaintiff is a valid certificate in the defendant school district.” We are unable to agree with this contention. The legislature, in the Certification Act of 1929 expressly points out the method of obtaining a limited elementary school certificate, the holder of which is authorized to teach in the lower 10 grades of the common school of the State, but the act expressly states that it does not apply to the issuance of limited State certificates in counties having a population of more than 500,000 — Cook county. And by section 2 it was provided that all certificates issued under the act should be “valid in every school district coming under its provisions. ’ ’ Since plaintiff was not authorized to receive a limited elementary certificate from the officials of Cook county we hold it cannot be said that she could reach this result indirectly by obtaining one in DuPage county. Moreover, the Certification Act of 1929 expressly creates an examining board for conducting examinations for limited certificates.

Section 8 of that act provides that, for the purpose of carrying out its provisions with regard to limited certificates, there is created an Examining Board to consist “of the Superintendent of Public Instruction, who shall be ex-officio chairman, a city superintendent, a high school principal, an elementary teacher, each to serve three years, one to be appointed annually by the Superintendent of Public Instruction.” Then follow other provisions as to the method of the appointment and filling of vacancies, and, continuing, “Examinations for limited certificates shall be held at the various county seats on the same day at least three times a year and under such rules as may be prescribed by the Examining Board. Questions for each examination shall be uniform throughout the State, and shall be prepared by said board and forwarded to the county superintendent under seal. . . . The county superintendent shall conduct the examination in his county and at the close of same shall forward all papers to the Examining Board. The grades shall be returned with a limited certificate for each successful applicant to the county superintendent who shall sign and issue the same.”

Section 9 provides that the holder of any limited certificate must register the same each year with the county superintendent in whose county the holder is to teach. And by section 18 it is provided that the applicant for a limited certificate may write the examination in any county and apply for a certificate in another county.

In support of plaintiff’s contention that it was not necessary for her to hold a certificate issued by the County Superintendent of Schools of Cook County to authorize defendant Board of Education to employ her to teach a school in Cook county, counsel refer to sections of the General School Act. The 15th and 16th paragraphs of section 15 of the General School Act of 1909, Smith-Hurd ft. S. 1935; Ill. State Bar Stats. 1935, ch. 122, H15; Jones Ill. Stats. Ann. 123.016, provide: “Fifteenth — To hold meetings, at least quarterly, for the examination of teachers. Sixteenth — To grant certificates of qualification to teach to such persons as may be qualified to receive them, and to keep a record of all teachers to whom certificates have been granted, and of all teachers employed in his county. ’ ’ The 12th paragraph of sec. 114, of the Act of 1909, provides that the Board of School Directors shall “pay no public money to any teacher unless such teacher at the time of his or her employment shall have held a certificate of qualification. ’ ’

By paragraph 15 of section 15, above quoted, it is made the duty of the county superintendent of schools to hold meetings quarterly for the examination of teachers, and by paragraph 16 to grant certificates to those qualified to teach in his county. But obviously this method of holding examinations and granting certificates was changed by the Act of 1929, where a board was specially created to hold and conduct such examinations, and it was expressly stated that that act did not apply to limited elementary certificates in any county of more than 500,000 inhabitants.

From what we have said, we are of opinion that plaintiff was not authorized to teach in the elementary schools of Cook county outside the City of Chicago, because she held no certificate from the county superintendent of schools of Cook county. (See opinions of the Attorney General, 1914, page 275.)

The judgment of the county court of Cook county is affirmed.

Judgment affirmed.

McSurely and Hatchett, JJ., concur.


text:
    Thebest Laundry and Cleaning Company, Appellant, v. Thomas E. Duffy, Jr., Appellee.
    Gen. No. 39,801.

      Opinion filed January 10, 1938.
    Gerald Turnbull, of Chicago, for appellant.
    Henry J. & Charles Aaron, of Chicago, for appel-lee; Franklin Baber, of Chicago, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against defendant to recover damages for a claimed breach of a contract entered into between the parties. Defendant’s motion to strike the complaint for insufficiency was sustained, suit dismissed at plaintiff’s costs and it appeals.

It is alleged in the complaint that the parties entered into a written contract January 23, 1936, which recited that plaintiff was engaged in the general laundry and dry-cleaning business at 4240 Indiana avenue, Chicago; that defendant was the owner of or controls certain laundry routes known as Midway Laundry, in Chicago, and was desirous of employing the services of plaintiff to do his laundry and dry-cleaning work; and it was agreed that defendant would collect and deliver to plaintiff at its plant each week, wearing apparel, etc., to be laundered or dry-cleaned and pressed, which business would amount to $925 a week; that defendant was to deliver the finished work to his customers in defendant’s trucks. The contract further provided that defendant agreed to pay plaintiff 50 per cent of the retail prices for the work done, which might be afterward increased to 65 per cent by mutual agreement of the parties; that defendant was to have use of space adjacent to plaintiff’s laundry for his trucks to load and unload the apparel and that defendant’s drivers were to have access to a certain assigned portion of the laundry for delivering and receiving the laundry and dry-cleaning work; that defendant was also to have a desk on the laundry premises and a right to install a telephone, and that plaintiff was to furnish the services of a telephone operator to receive calls and give information.

The contract further provided that plaintiff was to be paid each week for the work it performed the preceding week, pursuant to the terms of the agreement; that defendant agreed to assume all expenses connected with the laundry and dry-cleaning work and all sales expenses, and that defendant might terminate the contract by giving six months’ previous notice in writing of his intention so to do; that if defendant decided to sell his laundry route business, plaintiff was granted the option to purchase the business at a price mutually agreed upon by the parties.

It is further alleged in the complaint that plaintiff, relying upon the good faith of defendant, in accordance with the terms of the agreement incurred great expense, paid out large sums of money to repair its plant, machinery and offices, to take care of the work agreed upon; that at the request of defendant it made alterations and changes in the plant, purchased large amounts of supplies such as lumber, cotton goods, etc., purchased expensive machinery which would not have been necessary except for the performance of the laundry and dry-cleaning work; that plaintiff, in making the alterations in the plant and in the purchase of the goods and machinery spent more than $3,200; that after the making of the contract defendant appeared at plaintiff’s plant at various times and gave instructions as to alterations to be made in the plant and for the purchase of necessary materials by plaintiff; that defendant superintended some of such changes in regard to the space that defendant was to use to load and unload his trucks in the handling of his customers’ goods and in the laundry and dry-cleaning of them; that defendant also superintended the arrangement of the laundry for the office and for the telephone, for which plaintiff expended large sums of money; that after the execution of the contract and the making of the alterations and changes as stated, defendant refused to deliver the materials to plaintiff for cleaning and laundry work although plaintiff was ready, able and willing to perform such services, and that defendant gave no reason for such refusal.

Defendant contends that the judgment of the circuit court should be affirmed because the written contract entered into between the parties lacked mutuality and was therefore unenforceable; that by the terms of the contract plaintiff did “not agree to do the laundry work or dry cleaning which defendant promised to bring to it” and that defendant could not compel plaintiff to do the work under the terms of the contract. We think this contention cannot be sustained. While there is no express provision in the contract that plaintiff agreed to do the laundry and dry-cleaning work, we think it was clearly implied.

In Grossman v. Schenker, 206 N. Y. 466, the court said: (p. 469): “A contract includes not only what the parties said but also what is necessarily to be implied from what they said. (Milliken v. Western Union Tel. Co., 110 N. Y. 403, 408.) Thus the words ‘ cash on delivery’ with no other promise to pay ‘imply a promise and create an obligation’ to make payment upon delivery. (Justice v. Lang, supra.) So the word ‘sold’ in a written agreement implies not only a contract to sell but also a contract to buy (Butler v. Thomson, 92 U. S. 412, 414); and a contract to buy with no express promise to sell implies the latter obligation. (Hudson Canal Co. v. Penn. Coal Co., 75 U. S. (8 Wall.) 276, 289.) ‘What is implied in an express contract is as much a part of it as what is expressed’ (Bishop on Contracts (2d ed.), sec. 241); for ‘the law is a silent factor in every contract’ (Long v. Straus, 107 Ind. 94, 95.)”

In Williston on Contracts, Rev. Ed., Yol. 1, sec. 90, it is said, “Assent may be indicated by acts as well as by words, and a manifestation which, primarily indicates merely assent to receive a performance promised by the offeror may also justify an inference on the part of the offeror that the offeree undertakes to render counter-performance,” and a number of authorities are cited, including the Grossman case. Moreover, we think the contract is not unilateral because it expressly provides that defendant “is to have the use of space adjacent to the laundry for his trucks, to load and unload laundry work, and his drivers are to have access to premises of first party [plaintiff] assigned to them for delivering and receiving laundry and dry-cleaning work. Second party [defendant] is to have a desk on premises and the right to install a telephone operator to receive calls and furnish information.” By this provision plaintiff agrees to give defendant the use of space adjacent to plaintiff’s laundry for his trucks to load and unload the laundry work. He further agrees that defendant’s drivers are to have access to the premises to be assigned to them where the drivers may deliver and receive laundry and dry-cleaning work, and further agrees to have a desk installed in his laundry premises, and that defendant has the right to install a telephone and plaintiff agrees to furnish the services of a telephone operator. By these agreements on the part of plaintiff, the contract is bilateral. Further, the contract also provides that plaintiff “is to be paid each week for the work performed.the preceding week, pursuant to the terms of this agreement.” We. think this provision shows plaintiff agreed to perform the laundry and dry-cleaning work. We are also of opinion the allegations of the complaint are sufficient as tending to show that it was within the contemplation of both parties that alterations would have to be made in plaintiff’s laundry plant to take care of defendant’s business. It is alleged that after the making of the contract plaintiff began to make changes and alterations ; that defendant appeared at the plant and gave instructions as to some of the alterations then being-made in connection with the space for loading and unloading defendant’s trucks and the installation of the telephone, etc.

For the reasons stated the judgment of the circuit court of Cook county is reversed and the cause is remanded for further proceedings in accordance with the views herein expressed.

Reversed and remanded.

McSurely and-Hatchett, JJ., concur.


author: Mr. Justice McSurely

text:
    Andrew H. Nesheim, Appellant, v. Marie Nesheim, Appellee.
    Gen. No. 39,598.

      Opinion filed January 10, 1938.
    William B. Steinberg, of Chicago, for appellant.
    Emil Seerup, of Chicago, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff, seeking a divorce, filed his complaint May 3, 1935, charging that on November 3, 1933, defendant wilfully deserted him without cause and absented herself from plaintiff for the space of one year and upward; defendant answered, denying the desertion. Upon the hearing evidence was introduced on behalf of plaintiff only. The court held that upon the showing made plaintiff was not entitled to a divorce and ordered his complaint dismissed and that plaintiff pay defendant $100 for her attorney’s fees. Plaintiff appeals from this order.

Plaintiff testified as to his marriage to defendant on December 4, 1920, and that they lived together as husband and wife until November 3,1933; that at this date when he returned from a business trip he found the door of their apartment locked against him; that his wife would not permit him to enter; that he tried to call her by telephone several times but she would not answer ; that he also wrote her several letters, which went unanswered; that he went elsewhere to live and has not lived with defendant since November 3, 1933.

Upon cross-examination it was developed that plaintiff at about the time of the alleged desertion was unlawfully intimate with a niece of defendant, living with them, as a result of which the niece gave birth to a child on August 31, 1934, of which plaintiff admits he is the father.

Sec. 1, ch. 40, Ill. Rev. Stat. 1937; Jones Ill. Stats. Ann. 109.169, provides that: “In every case in which a marriage has been, or hereafter may be contracted and solemnized between any two persons, and it shall be adjudged, in the manner hereinafter provided, that either party ■. . . has wilfully deserted or absented himself or herself from the husband or wife, without any reasonable cause, for the space of one year . . . it shall be lawful for the injured party to obtain a divorce and dissolution of such'marriage contract.”

Plaintiff, appealing, argues that it was improper to inquire into his acts subsequent to November 3, 1933, the date of the alleged desertion, as no issue as to this was made by the pleadings. The comprehensive opinion in Decker v. Decker, 193 Ill. 285, is against this contention, holding that it was within the power of the chancellor, standing as the representative of the public, in a proper case to refuse to, grant a divorce though the ground of such refusal be without the issues made by the pleadings of the parties. This rule was repeated in Zimmerman v. Zimmerman, 242 Ill. 552.

It being within the power of the court to permit an inquiry into the conduct of the instant plaintiff, the question is presented whether, where he charges desertion as a ground of divorce and admits that within a month after the beginning of the period of desertion he committed adultery, he is entitled to a decree upon the ground alleged in his complaint.

It is not an unreasonable inference that the reason the defendant refused to live with plaintiff was his conduct in connection with her niece, which would be a “reasonable cause” for her desertion. But however this may be, we are of the opinion that the trial court was correct in holding that if plaintiff was guilty of adultery within the space of one year after the desertion he was not entitled to a decree of divorce. In Decker v. Decker, supra, it was held that the charge of adultery is a good recriminatory defense to the charge of cruelty in the complaint filed by the plaintiff. In Zimmerman v. Zimmerman, supra, the plaintiff sought a divorce on the ground of cruelty; it appeared upon the trial that she had been guilty of adultery. The court held that where this fact appeared, “whether set up by the pleadings or not, ’ ’ the divorce will not be granted. See also Lenning v. Lenning, 176 Ill. 180.

Plaintiff in his brief argues that there were no restrictions on his conduct during the year immediately following the date of the desertion and that his act of adultery within this year cannot be presented as a defense to his complaint. In 101 A. L. B. 646, it is stated as a general rule that a party charged with desertion may defeat the petition for divorce by showing that the plaintiff has been guilty of adultery after the alleged desertion, and this for the reason that the plaintiff in such a case does not come into court with clean hands, or at least is regarded as precluded, by his own guilty conduct which is itself a ground of divorce, from relying on the defendant’s guilt with respect to the other cause of divorce. This is supported by a list of citations from many States. - A typical case is Clapp v. Clapp, 97 Mass. 531. There, apparently the period of desertion entitling one to a divorce was five years; the plaintiff sought to obtain a divorce on the ground of desertion; it was proved in defense that about four years after the date of desertion plaintiff had committed adultery. The court denied him. a divorce on the ground that a party guilty of the breach of the marriage vow should not have the assistance of the court to enforce any marital right; that at the time when the plaintiff committed his offense of adultery “a locus penitentiae remained to the wife, and she might have returned to him. His offense justified her in never returning.” Applying this to the instant case, we hold that the statutory period of one year after the date of desertion was a time within which defendant had the opportunity for repentance and might have returned to plaintiff, but that his adulterous conduct in this period justified her in not returning. The dismissal of plaintiff’s complaint was proper.

Complaint is made of the allowance to defendant for her attorney’s fees. Sec. 15, ch. 40, Divorce Act, Ill. Rev. Stat. 1937; Jones Ill. Stats. Ann. 109.182, permits the allowance of such fees. Defendant was made a party to this suit and was forced by plaintiff to engage counsel and defend the action. In this respect it differs from Ehrhardt v. Ehrhardt, 198 Ill. App. 47, where the wife brought the suit which the court held she could not maintain.

. We see no reason to disturb the order of the chancellor and it is affirmed.

Affirmed.

O’Connob, P. J., and Hatchett, J., concur.


text:
    John B. Fuller, Appellant, v. De Paul University, Ap-pellee.
    Gen. No. 39,630.

      Opinion filed January 10, 1938.
    William Japfe, of Chicago, for appellant.
    Taylor, Miller, Busch & Boyden, of Chicago, for appellee; Preston Boyden, Cassius M. Doty and Stephen A. Mitchell, all of Chicago, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff appeals from an adverse judgment in an action to recover damages for an alleged breach of an oral contract made by defendant to employ plaintiff as a teacher; defendant asserted that when plaintiff applied for employment he concealed material facts about himself which if defendant had known it would not have employed plaintiff.

At the conclusion of the evidence defendant moved the court to instruct the jury to find in its favor; ruling on this was reserved; the jury returned a verdict for plaintiff, assessing his damages at $2,000; subsequently the court sustained the' motion of defendant and entered judgment for it notwithstanding the verdict, and plaintiff appeals.

Did plaintiff, by concealing at the time of his employment that he was an apostate priest from the Catholic church, thereby establish as a matter of law his unfitness to perform the employment he sought, and hence vitiate the contract of employment?

There is no dispute on the facts. DePaul University developed from the Congregation of the Mission, founded in 1623 by Vincent DePaul for the purpose of missionary and educational work throughout the world. Defendant was founded in Chicago in 1898, when the priests of the Congregation of the Mission were invited by the Archbishop of Chicago to open a school of higher learning. The trustees of defendant are members of the Congregation of the Mission. The school is not operated for profit; its primary purpose is to educate young men and women under Catholic auspices, training not only the brain but the morals and character; religious exercises and activities, such as Mass every morning and religious instruction, are part of the college routine. In 1935-1936 it had about 5,700 students, approximately 85 per cent Catholic, including approximately 1,000 nuns and between 50 and 70 priests; these nuns and priests take vows of poverty, chastity and obedience.

In August, 1935, plaintiff sought employment with defendant as a teacher of the German language; Father Corcoran was defendant’s president and Father O’Con-nell dean of the college of liberal arts; the latter became president prior to the beginning of the 1935-1936 academic year. Father O’Connell testified that the qualifications generally demanded of professors are scholastic attainment, character, and a general fitness for association with the faculty and the student body; no one is hired “who has had anything in his past life which would make him unfit for association with our faculty or with our student body.” Because of the character of the defendant college the obligation of a faculty member is greater than in an ordinary school.

When plaintiff applied to Father O’Connell for employment he called himself John B. Fuller; at this time he knew the reputation of defendant as a Catholic institution of learning; he told Father O’Connell he had been teaching German for eight years at Amherst College, that he held a Ph. D. degree from the Chicago University and that he was a Catholic; later the same day he saw Father Corcoran and told him the same thing. Plaintiff was then hired at a salary of $2,000 for the academic year commencing September, 1935, ending in June, 1936; later, in August, he received a catalogue and a communication from the president containing a detailed outline of the schedule of plaintiff’s classes and notification that classes would begin September 16th; he also received notification of a meeting of the faculty to be held September 13th. September 10th he received a letter from Father O’Connell, then president of defendant, saying: “The personnel Committee on its scrutiny of your record has decided that you would not fit into the picture at De Paul. Consequently, your services will not be needed.” The reason for this action was as follows: Early in September Father O’Connell received a telephone call from Techny, a Catholic community near Chicago, voicing a suspicion that plaintiff was a former priest at that community known as Father Bernard Fuller. Father O’Connell at once went to Techny and investigated. He then learned that plaintiff was the same Bernard Fuller who from about 1912 to 1927 had been a priest at Techny; that a message came there from Greece in July, 1927, announcing the death of Father Fuller in Greece and a requiem high mass was held for him in Techny.

The evidence further shows that when Father O’Con-nell inquired of plaintiff as to his references when he applied for employment he did not tell either Father Corcoran or Father O’Connell that he had entered the Society of the Divine Word, a religious order composed of Catholic priests, in 1906, and was ordained a Catholic priest in 1910, taking the religious vows of perpetual obedience, poverty and chastity; that he came to Techny, Illinois, in 1911, and from 1911 to 1927 he lived there the life of a Catholic priest as a member of the Society of the Divine Word. He was then known as Father Bernard Fuller among the other members of the society and his students. He would assist other priests in different parishes in Cook county by celebrating Mass and preaching on Sundays and holy days. He was known by many of the Catholic clergy in Chicago as Father Bernard Fuller. In March, 1927, without the knowledge of his superiors or associates in Techny, he obtained a position as a teacher at Amherst College. June, 1927, he broke his vows, deserted the priesthood, married Anna Ruber in Buffálo, New York, and became what is termed a ‘ ‘ fugitive ’ ’ and went with his wife to various cities in Europe. Plaintiff concealed all this part of his past life from Father Corcoran and Father O’Connell. Some time after the obsequies had been held for plaintiff at Techny it was learned that he was not dead but was teaching at Amherst College. It gradually became a matter of general knowledge that he had left the priesthood and was known as a fugitivis.

Upon learning these things Father. O’Connell at once wrote the above letter to plaintiff telling him his services would not be needed. Father O’Connell testified that if plaintiff had been hired and it had become known that defendant had an apostate priest on its faculty it would have done defendant irremedial damage ; that the student body, largely Catholic, would not understand how a member of the faculty was a priest who had deserted the priesthood and violated his vows. Father O’Connell also testified that this would cause the immediate withdrawal of all the nuns and priests from defendant.

After receiving the letter plaintiff had an interview with Father O’Connell, who explained to him that it would do the defendant great harm if plaintiff, an ex-Catholic priest, were employed. Plaintiff said that this fact need not be known and he would do his best to keep it quiet. He wrote a letter September 12th to Father O’Connell, stating that he had been “very careful and discreet not to give any scandal”; that no one, not even his brother and sister-in-law knew about his past; that both defendant and plaintiff should be anxious to avoid publicity, and plaintiff suggested that he be allowed to teach for the year, using means to keep hidden his past experiences. Plaintiff testified that he meant by this letter that if the facts about him should come out he “never would have thought of staying there. I don’t want anyone to know that”; and that he “could not see how any scandal could be involved because nobody knew about it. ’ ’ To this Father O’Connell wrote in reply, charging plaintiff with failing to inform him of “what to us is a very essential part of what we look for in our professors ’ ’; that -defendant must avoid the possibility of any scandal.

It is established by uncontradicted evidence that if plaintiff had told defendant’s representatives all the facts about himself his employment would not have been considered.

Plaintiff gave testimony of his unsuccessful attempts thereafter to procure employment in other places.

Plaintiff argues in this court that the materiality of the concealment by him was a question of fact to be determined by the jury. Where there is no conflict in the evidence nor dispute as to the facts, and no conflicting inferences, a question of law is presented, to be decided by the court. This is the rule stated in 64 C. J., sec. 442, p. 468, and the cases there cited support the statement, and Libby, McNeill & Libby v. Cook, 222; Ill. 206. In Woods v. Bowman, 200 Ill. App. 612, 615, the facts were uncontroverted, and it was held that the relation of the parties was a question of law. And in 13 C. J., page 783, sec. 991, the principle is stated that “. . . if the evidence shows conclusively that a representation was made as an inducement to enter into a contract, that it was false, and that such representation was relied on, the court should direct a verdict for defendant.” Brown v. Search, 131 Wis. 109, 114; Mexican Amole Soap Co. v. Clarke, 72 Ill. App. 655, 658. The concealment by plaintiff that he had been a priest of the Catholic church, taking the vows of poverty, obedience and chastity, and had officiated as a priest for many years and had subsequently left the priesthood, marrying and becoming the father of two children and what is termed a “fugitive” amounted to a material and fraudulent misrepresentation. His silence as to these things was a deception which induced defendant to employ him. The general rule is that concealment must relate to a matter material to the transaction involved. As stated in 13 C. J., page 390, sec. 294, “It may be stated as a rule that it is always material if, had it been known to be false, the contract would not have been entered into.” It is undisputed in the instant case that there would have been no contract of employment if the facts -about plaintiff had been known. A variety of illustrations might be cited. One is given in Wood on Master and Servant, page 217, where the author says that the mere fact that a servant has been guilty of wrongdoing prior to contracting for services does not of itself furnish ground for his discharge “unless he concealed it from his master and the business in which he is engaged is such that knowledge of the fact by the public would injure the master’s interests. . . .”

There is some suggestion that plaintiff did not intentionally conceal from defendant facts of his past life — facts which he says were not material. We cannot accept this. From the very nature of the employment in defendant’s school, plaintiff as a former active priest must have known that the disclosure of his apos-tacy would have barred him from employment. He purposely represented himself as a Catholic layman so as to mislead those inquiring about, his qualifications. His intentional concealment is further shown by his subsequent letter to Father O’Connell in which he suggested that he should teach, keeping hidden the facts of his past life, which he admitted if they were to become known in defendant’s school would create a scandal.

The experience of hundreds of years past has shown that a teacher, to be qualified to perform his duties, must possess such a character that he may be a good example to pupils and create character in them. The teacher must be honest and honorable, not performing his duties under the cloak of honesty, but genuine, and beyond suspicion as to his character. The defendant, DePaul University, is surrounded by an unusual religious atmosphere, and to have injected plaintiff, an apostate priest, into this would have been disastrous. In Darrow v. Briggs, 261 Mo. 244, 169 S. W. 118, it was held that the interest of the Congregational college required the removal of a teacher who was out of harmony with the recognized religious atmosphere of the school.

Defendant’s brief well states the situation: “The defendant does not suggest that the plaintiff did not act entirely within his civil rights when he- violated his vows, and broke faith with his religious superiors, and became a fugitive from religious discipline; that is a matter between the plaintiff and his conscience. But the defendant does assert that the plaintiff forfeited —and must have-known he forfeited — his availability for association in the capacity of a mentor, on a basis of equality and respect in educational pursuits with people who have dedicated their lives to the education of men and women under Catholic auspices, and in a Catholic atmosphere.”

Where an affirmative defense is established by uncontradicted evidence it is the duty of the trial court to direct a verdict for the defendant. Wallner v. Chicago Consol. Traction Co,. 245 Ill. 148, 152; Nelson v. Stutz Chicago Factory Branch, 341 Ill. 387, 396. There are many other cases to the same effect. Clearly, on the established and uncontradicted facts presented by the evidence the court could properly enter no other judgment than one for defendant. The judgment is therefore affirmed.

Affirmed.

O’Connor, P. J., and Hatchett, J., concur.


text:
    Virginia Breazeale, Appellant, v. Chicago Title and Trust Company, Appellee.
    Gen. No. 39,650.

      Opinion filed January 10, 1938.
    James K. McVey and McKenna, Harris & Schneider, both of Chicago, for appellant; James J. McKenna and Andrew Park, of counsel.
    Kirkland, Fleming, Green, Martin & Ellis, of Chicago, for appellee; David Jacker, Charles M. Bush and William H. Symmes, all of Chicago, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff brought suit alleging that she had been injured through the negligence of the defendant in failing to maintain in good repair an apartment leased by her; upon trial, at the conclusion of plaintiff’s case, the court on motion of defendant instructed the jury to find defendant not guilty, and plaintiff appeals from the judgment on the verdict.

Defendant had possession as trustee of an apartment building at 721-729 Sheridan road, Chicago; in October, 1933, under an oral lease, plaintiff moved into one of these apartments; it was a furnished apartment and an employee of defendant once a week cleaned the carpet with an electric cleaner. Plaintiff testified that the carpet was shabby and that there was a hole in it in the living room; that when she talked to the manager of the building, Mrs. Hamm, she was told that new carpets were ordered and would be put in very soon. In the following April, 1934, plaintiff came home from work about 6:30 or 7 p. m., turned the light on and walked along a little, narrow hallway between the ldtchenette and the bedroom; she put her coat and hat in a closet on one side of this hallway and then turned to go into the bathroom on the opposite side; she says, “It seems there was a seam in this carpet in this little, long, narrow hallway . . . and I ran my foot under that seam in the carpet and fell against the left-hand side of the bathroom door.” She says her head struck against the bathroom door and as she fell she “heard the tearing ... in the carpet.” She testified at length as to her injuries as a result. On cross-examination she testified that there was no hole in the carpet in this hallway; that she used the hallway frequently and saw the carpet there “hundreds of times” and saw nothing wrong with it between the bathroom door and the closet door; that it was old and shabby but apparently whole. She testified that on at least five different occasions she complained about the carpet and was told a new carpet would be placed within a day or two. Her complaint apparently was about the shabbiness of the carpet, which would make an unpleasant impression on guests she expected about Christmas time.

There is no duty on a landlord to make repairs of a leased apartment unless he has assumed such duty by express agreement. Cromwell v. Allen, 151 Ill. App. 404. The opinion in that case examines extensively the law on the subject. The cases cited in plaintiff’s brief which it is said hold to the contrary are cases involving some part of the building used in common by all the tenants and not in the exclusive possession of any one tenant.

In the case at bar plaintiff was in exclusive control of the premises, except that the vacuum cleaner man entered once or twice a week to clean the carpet. This temporary work did not amount to constructive possession by the landlord, carrying with it the duty to replace a shabby carpet. In this connection it might be noted that plaintiff’s complaint to the building manager went more to its appearance than to any dangerous condition.

A further consideration against plaintiff’s position is that the condition of the carpet in the hallway was known to plaintiff and, as she testified, there was apparently nothing the matter with it except its age.

The first count of plaintiff’s complaint seems to be based upon a breach of contract to repair, although this point is not argued in her brief. The general rule is that where the right of possession and enjoyment of leased premises passes to the lessee, in the absence of concealment or fraud by the landlord as to some defect known to him and unknown to the tenant, the tenant assumes,all risk of personal injury from defects, and the fact that the lessor covenants to repair does not affect this rule so far as concerns the lessor’s liability for personal injuries to the lessee due to defects, although their existence is attributable to the failure of the lessor to repair. 8 A. L. R. 765, 766, and cases there cited. Also Revell v. Illinois Merchants Trust Co., 238 Ill. App. 4; Margolen v. DeHaan, 226 Ill. App. 110; Timmons v. Williams Wood Products Corp., 162 S. E. 329; Oppenheimer v. Szulerecki, 297 Ill. 81, 86.

We repeat that defendant had no notice of any defect in the carpet where plaintiff fell and there had never been any complaint about the carpet at this place except that it was old and shabby. Upon the evidence there' was no issue of fact to be submitted to the jury and the court properly instructed for the defendant.

The judgment is affirmed.

Affirmed.

O’Connor, P. J., and Hatchett, J., concur.


text:
    Joe Kaminskas et al., Appellants, v. Frank Cepauskis et al., Appellees.
    Gen. No. 39,678.
    Opinion filed January 10, 1938.
    George Gillette, Charles F. Grimes and Fred J. Woodman, all of Chicago, for appellants.
    Olis Vasalle & Lapinskas, of Chicago, for appellee Anna Cepauskis.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal from a portion of a decree in foreclosure proceedings finding that the rights of plaintiffs are subject to the dower right of Anna Oepauskis, widow of defendant Frank Oepauskis.

By their amended complaint plaintiffs, as the holders of notes aggregating $10,000 secured by trust deed dated December 2, 1929, sought to be subrogated to the rights of the holder of a prior first mortgage for $10,000 and to foreclose the lien of their trust deud. The right to subrogation is contested by Anna Cepaus-kis, who claims that she was married to Frank Cepaus-kis in 1895, and did not join in the trust deed of plaintiffs, which was executed by Frank Oepauskis as a bachelor.

The cause was referred to a master who heard evidence and reported, finding that plaintiffs have a lien prior to the dower right; the court sustained exceptions to this part of the report and entered a decree foreclosing plaintiffs’ trust deed, subject to the dower right.

Plaintiffs say that their trust deed and notes were executed and delivered to take the place of the prior mortgage of $10,000; that when the new refunding mortgage was made Frank Oepauskis represented himself as a bachelor and that no claim of any dower interest was made until shortly prior to the filing of the complaint for foreclosure on May 19, 1932; that under such circumstances the doctrine of conventional subrogation should be applied, treating the transaction as an equitable assignment to plaintiffs of the old mortgage, which was admittedly superior to the dower right of the wife. Defendants seem to argue that the Illinois Dower Act, Ill. Rev. Stat. 1937, ch. 41, § 1 et seq.; Jones Ill. Stats. Ann. 41.01 et seq., so firmly establishes the right of dower that it is not subject to equitable principles.

The evidence discloses that in December, 1924, William and Katherine Guzmann owned property described as “The North 274.6 feet of that part of the NW% of the NE14 of Sec. 34-42-11, lying west of the center line of Rand Road in Cook County, Illinois.” On this they placed a $10,000 first mortgage in the form of a trust deed. In December, 1928, the Guz-manns conveyed this property to Frank Cepauskis, subject to this first mortgage and also a second mortgage which Cepauskis assumed. (We shall consider this second mortgage in another appeal.) Shortly before the first mortgage matured, by extension, in December, 1929, the owner of it delivered the note and trust deed to her attorney, Samuel Petersen, for collection. Mr. Petersen notified Mr. Cepauskis that his client demanded payment. Cepauskis then applied to Justin Mackiewich, a mortgage broker he had known for some time, for a refinancing first mortgage loan to replace the existing first mortgage. December 23, 1929, Mackiewich delivered a check for $10,000 to Petersen, who deposited the check to his account and later paid its proceeds to his client, the owner of the first mortgage. No part of this refinancing loan was paid to Cepauslds. The old first mortgage notes were canceled and the trust deed securing them released. As security for the new loan Cepauskis executed and delivered to Mackiewich eight notes aggregating $10,000 and a trust deed in which Cepauskis was described as a bachelor; the trust deed conveyed the same premises as the old trust deed and in addition 87 feet adjoining on the south. Cepauslds had acquired title to this additional frontage shortly before he made the new first mortgage loan.

Plaintiffs severally purchased from Mackiewich the notes secured by this trust deed; default was made in certain interest payments and plaintiffs elected to declare the entire $10,000 indebtedness due and filed their complaint.

An affidavit made by the consul for Lithuania was filed for record in March, 1932, setting forth the claim of Anna Cepauskis, as the wife of Frank, and her claim of an inchoate dower interest, in the premises above described superior to plaintiffs’ lien. She was made a party defendant. Plaintiffs’ amended complaint asserted their right to be subrogated to the lien of the old first mortgage as to the premises described in that trust deed. They claim no right of subrogation as to the south 87 feet of the premises conveyed in their trust deed and concede that the dower right of Anna Cepauskis in this 87 feet is superior to plaintiffs ’ lien. Frank Cepauskis died in March, 1933.

In Home Sav. Bank v. Bierstadt, 168 Ill. 618, 623 ,the court distinguished between what is termed a legal subrogation, which springs from the mere fact of payment of a debt, and a “conventional subrogation, which results from an equitable right springing from an express agreement with the debtor, by which one advances money to pay a claim for" the security of which there exists a lien, by which agreement he is to have an equal lien to that paid off, whereupon he is entitled to the benefit of the security which he has satisfied with the expectation of receiving an equal lien.” This subject has also been considered in Central Trust Co. v. Calumet Co., 260 Ill. App. 410, 424, and Brost v. Juul, 266 Ill. App. 423, 433.

Plaintiffs convincingly argue that they occupy the same position in equity as if they had received an assignment of the old first mortgage. If the owner of the old mortgage had extended the; time of payment there would be no basis whatever for any claim of dower as superior to the lien of that mortgage. Also, if Mackiewich had purchased and taken an assignment of" the old mortgage he could have''extended the time of payment, and "again there would have been no basis for the claim of dower superior to that mortgage. The entire proceeds of the loan made by Mackiewich were used to take up the old mortgage. No part of the money went to Cepauskis personally.

The facts in Tyrrell v. Ward, 102 Ill. 29, 37, are somewhat similar to those now before us. A Mr. Bayard had advanced money upon certain mortgage loans made to pay off prior mortgages; a judgment creditor claimed a prior lien to the Bayard mortgages. The court held that Bayard was subrogated to all the rights of the prior lien holders; that equity must treat the transaction as an assignment to him of the prior mortgages “as fully so as had a formal assignment been made and endorsed on the papers evidencing these debts and liens. This, every consideration of justice and good conscience demands. It would be highly inequitable and unjust to defeat the intention of the parties, and visit so heavy a loss on Bayard, when he advanced the money expressly to remove these prior liens and perfect his own. Justice and authority not only sanction, but demand, that Bayard should be subrogated to all of their rights.” To the same effect are Smith v. Dinsmore, 119 Ill. 656, 664; Martin v. Hickenlooper, 59 P. (2d) 1139; Wallace v. Benner, 200 N. C. 124.

Counsel for Anna Cepauskis have cited many cases involving different circumstances than those here present, and other types of subrogation. The case of Cox v. Garst, 105 Ill. 342, which defendant seems to stress, involved the sale of an equity of redemption which had descended to heirs subject tó a dower right. The court properly held that the administrator’s sale should be subject to the widow’s dower. Other cases cited by defendant can be distinguished.

:Defendants’ position seems to be that a dower right-is immune from the application of the principle of conventional subrogation. Anna Cepauskis lives in Lithuania ; she has never been in this county; the last time she saw Frank Cepauskis was 28 years before he made the instant mortgage. It is a fair inference that if she had been living here with her husband in December, 1929, she would either have joined in the refinancing mortgage, thus waiving her dower, or would have had this right defeated by a foreclosure of the old first mortgage. On the other hand, the plaintiffs have purchased for cash the notes in question and are attempting to collect this by a sale of the security.

Moreover, it may be said that in many cases in this State it has been held that dower is no more favored than any other property right. It may be barred by estoppel. Heisen v. Heisen, 145 Ill. 658, 666; also by limitations, Owen v. Peacock, 38 Ill. 33, 36; Wells v. Wells, 246 Ill. 469, 474; also by laches, Bigoness v. Hibbard, 267 Ill. 301. Dower does not attach to improvements made by the husband’s grantee, Summers v. Babb, 13 Ill. 483; Gridley v. Wood, 344 Ill. 153, 159-160. These last two decisions hold that this would work no injustice to the wife as she has no just claim to the enhanced value of the land. Plaintiffs say that application of this principle will work no injustice to Anna.

Defendants cite sec. 16 of the Dower Act, ch. 41, Ill. Eev. Stat. 1937; Jones Ill. Stats. Ann. 41.16, as stating a rule of public policy that the right of dower can never be defeated. Defendants misconceive plaintiffs’ position. There is no attempt to defeat her right to dower. Only a question of priority is involved. Plaintiffs ask only to confine defendant’s right of dower to the interest her husband had in the property, namely, the equity of redemption.

Justin Mackiewich was not a volunteer, merely paying a prior mortgage. Cases cited by defendants involving such facts are not in point. Here there was an agreement that Mackiewich should have a lien equal to that of the old first mortgage, and under the cases above cited this is adequate to meet the requirements of conventional subrogation.

Defendants’ counsel argue earnestly that when Mackiewich made the loan in question he knew of the dower claimed by Anna Cepauskis, and it is asserted that his conduct was a deliberate attempt fraudulently to cut off her dower right. The theory is hardly probable. No experienced man, as Mackiewich was — a mortgage broker accustomed to making loans — would have advanced a substantial sum of money, like $10,000, knowing that there was a superior claim of dower. Without discussing the point in detail, the evidence did not show that Mackiewich knew that at the time Frank Cepauskis executed the trust deed and notes he was a married man and that his description of himself as a bachelor was untrue.

Moreover, the question as to Mackiewich’s knowledge that Frank Cepauskis was married was an issue of fact in the trial court. One of the objections made by defendants to the master’s report was that the master had not found that Mackiewich knew of the rights of Anna Cepauskis before he loaned any money; the master overruled this objection and it was ordered to stand as an exception, and the chancellor overruled this exception and no cross appeal has been taken by Anna Cepauskis from the court’s ruling. Marks v. Pope, 289 Ill. App. 558, 574. It might be remarked that Anna Cepauskis was not prejudiced by the particular form of the transaction of refunding the old mortgage, and it is a reasonable proposition, although we do not decide the point, that any knowledge that Mackiewich had of-any dower claim is immaterial so far as the right to conventional subrogation is concerned.

The master found that the rights of the plaintiffs as to the north 274.6 feet of the premises are subrogated to the rights of the holder of the old first mortgage for $10,000 and is superior to the right of the defendant Anna Cepauskis; also that plaintiffs have a lien upon the south 87 feet of the premises, but this lien is subject to the dower right of Anna Cepauskis. The de-

cree is reversed and the cause is remanded with directions to enter a decree in accordance with the report and recommendation of the master in chancery.

Reversed and remanded with directions.

O’Connor, P. J., and Hatchett, J., concur.