author: Mr. Justice Allaben

text:
    Isabelle W. Shumway, Appellant, v. Hiram M. Shumway and Dorice D. Shumway, Appellees.
    Gen. No. 8,778.

      Heard in this court at the January term, 1935.
    Opinion filed April 12, 1935.
    W. B. McBride, of Taylorville, and Dryer & Brown, of Hillsboro, for appellant.
    John E. Hogan, Harold S. Williams and Leal W. Reese, all of Taylorville, for appellees.
   Mr. Justice Allaben

delivered the opinion of the court.

On January 10, 1930, Isabelle W. Shumway, plaintiff, filed her declaration to the November term, 1929, of the circuit court of Christian county, in vacation, and took judgment by way of confession against defendants, in the sum of $12,238.52, including attorney’s fees, and costs. The declaration was as follows:

“Isabelle W. Shumway, plaintiff in this suit, by W. B. McBride her Attorney, complains of Dorice D. Shumway and Hiram M. Shumway, defendants in this suit, in a plea of trespass on the case on promises.
“For That, Whereas, the Defendants, Dorice D. Shumway and Hiram M. Shumway have heretofore to-wit given their certain promissory notes to Glenn F. Shumway one for the amount of Thirty Seven Hundred Fifty ($3750.00) Dollars, dated March 9, 1921; one for the amount of Thirteen Hundred Thirty Eight ($1338.10) Dollars and Ten Cents, dated January 1, 1926, one for the amount of Twenty Four Hundred ($2400.00) Dollars, dated January 5, 1926; each of said notes drawing Seven (7) per cent, interest from the date thereof, and which were duly endorsed to the plaintiff, Isabelle W. Shumway.
“And afterwards and on to-wit the 27th day of January, 1926, the said Dorice D. Shumway and Hiram M. Shumway made and executed their note in the sum of One Thousand ($1000.00) Dollars to the plaintiff herein; that afterwards on to-wit April 7, 1926, they made, executed and delivered to the plaintiff another note in the sum of One Thousand ($1000.00) Dollars, each of said notes drawing interest at the rate of Seven (7) per cent, per annum from the date thereof each of said notes were then and there delivered to the plaintiff, and each of said notes the defendants by the name, style and description of Dorice D. Shumway and Hiram M. Shumway promised to pay to the plaintiff the said sums due respectively on said notes, for value received.
“And whereas, also the said Defendants, after-wards, to-wit on the same day and at the place aforesaid, to-wit, at said County, made and executed their Power of Attorney and attached the same to said Notes, by which power of Attorney the said Defendants authorized any Attorney of any Court of Record, to appear for them in said Court, at any time after the date of said notes, and confess a judgment, without process, in favor of the holder of said notes, for such amount as may appear to be due thereon, with Costs, and Ten (10) per cent Attorney’s fees. By means whereof, and by force of the statute in such case made and provided, the said Defendants became liable to pay to the said Plaintiff the said sum of money in the said Notes specified, according to the tenor and effect of the said notes, and of the said endorsements, so thereon made as aforesaid; and, being so liable, the said Defendants, in consideration thereof, afterwards, to wit: on the same day and year, and at the place aforesaid, undertook, and then and there faithfully promised to said Plaintiff well and truly to pay unto the said Plaintiff the said sum of money in the said Notes specified, according to the tenor and effect of the said Notes and the said endorsements so thereon made as aforesaid.
“Yet the said Defendants, although often requested, etc., have not yet paid the sum of money, or any part thereof, to the said Plaintiff but so to do have hitherto wholly refused, and still do refuse, to the damage of the said Plaintiff of Twelve Thousand Two Hundred Thirty-eight ($12,238.52) Dollars and Fifty-two cents and therefore she brings suit, etc.
W. B. McBride Plaintiff’s Attorney.”

Attached to the declaration was the following affidavit :

“State of Illinois ) ‘ ‘ Christian County ) ss"
“Isabelle W. Shumway being duly sworn, deposes and says that she is acquainted with the handwriting of the said Defendants, Dorice D. Shumway and Hiram M. Shumway, the makers of the annexed notes and Power of Attorney; and deponent further says, that the signatures to the said notes and power of Attorney, are the genuine signatures of the said Dorice D. Shumway and Hiram M. Shumway, and that they are still living.
Isabelle W. Shumway.
“Subscribed and Sworn to before me this 9th day of January, A. D., 1930.
W. B. McBride.
( SEAL ) NOTARY PUBLIC. ’ ’

Attached to the declaration were five notes in varying amounts, three of which were payable to Glenn F. Shumway. On these three notes, bearing indorsements of certain interest payments, appear the following indorsement: “Without recourse Glenn F. Shumway.” The other two notes were payable to Isabelle W. Shumway. Because for the purposes of this decision the principal amounts of the various notes, and the interest payments thereon, are not in controversy, we set out only one of the notes in full which was as follows:

“$3750.00

Taylorville, Ill. March 9, 1921
“On Demand after date for value received, we promise to pay to the order of
Glenn F. Shumway
Tub First -N-ational-Ban-k- op■ Ta-ylorvillb
Thirty seven hundred fifty and no/100......Dollars at the said Bank, Taylorville, Ill., with interest at the rate of seven per cent per annum from date and empower and authorize any attorney at law of any court of record at any time hereafter to enter our appearance in any court of record, either in term time or vacation, and waive the issue of process on us, and to confess judgment against us, or either of us, in favor of the payee or assignee for amount unpaid hereon with interest, costs of suit and ten per cent attorney’s fees, and to release all errors and waive the right of appeal, and writ of error on such judgment.
D. D. Shumway Estate By Dorice D. Shumway Ex By Hiram M. Shumway Ex
No.- Due-
Int. Due 3-9-22 to 5-1-26 1085.00”

Attached to the declaration was the following cognovit, omitting caption:

“And the Said Dorice D. Shumway and Hiram M. Shumway Defendants in the above entitled suit, by Arthur Yockey Attorney come and defend the wrong and injury, when etc., and waive service and process, and say that they can not deny the action of the said Plaintiff, nor but that they, the said defendants, did undertake and promise, in manner and form as the said Plaintiff has above complained against them nor but that the said Plaintiff has sustained damages on occasion of the non-performance of the several promises and undertakings in said declaration mentioned, including the sum of Eleven Hundred Twelve ($1112.59) Dollars and Fifty-nine Cents for Attorney’s fees for entering up this Judgment, over and above all other costs and charges by her about this suit in this behalf expended to the amount of Twelve Thousand Two Hundred Thirty-eight ($12,238.52) Dollars and Fifty-two Cents; and the said Defendants further agree that no writ of error or appeal shall be prosecuted on the Judgment entered by virtue hereof, nor any bill in equity filed to interfere, in any manner, with the operation of said Judgment and that they hereby release all errors that may intervene in entering up the same, or issuing the execution thereon, and consent to immediate execution upon such Judgment.
Arthur Tockey
Defendants ’ Attorney. ’ ’

On January 13, 1930, which was the first day after the entry of judgment on which the court was in session defendant Hiram M. Shumway filed a motion to redocket the cause, to allow the defendants to plead, and to set aside the judgment. On February 24, 1930, the judgment was opened, “Leave (was given) to defendants to plead to the merits. Judgment to stand as security.” On March 24, 1930, defendant Hiram M. Shumway filed his general and special demurrer to plaintiff’s declaration, which, omitting caption, was as follows:

“Demurrer to Declaration.
“And the defendant, Hiram M. Shumway, by Leal W. Reese, his Attorney comes and defendants etc., when etc., and says that the said Declaration heretofore filed in the above entitled cause, and the matters therein contained in manner and form as the same are above set forth are not sufficient in law for the plaintiff to maintain her aforesaid act and that he, the defendant is not bound by law to answer the same; and this he is ready to verify.
“2.
“And the defendant shows to the Court here the following reasons of demurrer to the said declaration:
“1. The Declaration as filed in said cause alleges that the defendant, Hiram M. Shumway (together with Dorice D. Shumway), has heretofore given certain promissory notes to Glen F. Shumway, one for the amount of $3750.00, dated March 9th, 1921, one for the amount of $1338.10, dated January 21st, 1926, and one for the amount of $2400.00 dated January 5th, 1926. It is also set forth that the defendant did on the 27th day of January 1926 make and deliver to the plaintiff, Isabel W. Shumway one promissory note in the sum of $1,000.00, and did also execute another certain note to the plaintiff on April 7th, 1926, in the sum of $1,000.00.
“2. No copies of any such notes as above set forth are attached to the Declaration filed in said cause.
“3.
“And the defendant shows to the Court as additional cause for demurrer, that the Declaration filed in said cause alleges an action upon a promissory note whereas no promissory note or copy of the same is attached to the Declaration signed or purported to be signed by the said Hiram M. Shumway (together with Dorice D. Shumway).
“4.
“And the defendant shows to the court as additional grounds of demurrer that there is an absolute variance between the alleged notes as set forth in the Declaration and the copies of the same as attached to the Declaration in that the same were signed by different parties.
“5.
“And this defendant shows to the Court as additional grounds for demurrer that no copies of the notes sued upon are attached to the Declaration.
“6.
“And this defendant suggests to the Court as additional grounds of demurrer that the copies of the notes attached to the said declaration disclose that the party or parties indebted to the holder of the said notes is not the defendant, Hiram M. Shumway.
“7.
“And the defendant further shows to the Court that the said declaration is in other respects uncertain, informal and insufficient.
Hiram M. Shumway.
Hiram M. Shumway.
By Leal W. Reese
Leal W. Reese, his Attorney.”

On September 15,1930, defendant, Hiram W. Shumway, was granted leave to withdraw his demurrer, oyer of the notes was craved and granted, whereupon the defendant, Hiram W. Shumway, filed his demurrer after oyer craved, which was substantially similar to the original demurrer heretofore set forth, with the exception that the five notes were incorporated therein, a copy of one of which has been heretofore set forth in this opinion.

On September 24, 1930, defendant Hiram M. Shumway ’s demurrer was sustained, to which ruling of the court the plaintiff excepted. On September 25, 1930, defendant Hiram M. Shumway’s motion to discharge the lien of judgment because there was no declaration on file was allowed and the lien of open judgment'was discharged. On November 10, 1930, plaintiff excepted, and prayed an appeal to the Appellate Court, Third District, which was allowed upon filing bond in the sum of $150. Plaintiff never perfected her appeal, but did sue out a writ of error to this court, to the October term, 1931, which writ of error, at the January term 1932 was dismissed by this court for the reason that there had been no final appealable judgment entered in favor of defendant, Hiram M. Shumway, or against the plaintiff.

On June 20, 1932, plaintiff asked leave to redocket the case and said case was then redocketed, and the mandate of the Appellate Court was filed, and on the same day plaintiff filed a motion to set aside the order theretofore entered sustaining the defendant’s demurrer and discharging the lien, and asking leave to reargue the demurrer. On November 29, 1932, plaintiff’s motion to set aside the order sustaining the demurrer and discharging the lien and asking for leave to reargue the demurrer was overruled, and the plaintiff having elected to stand by her declaration, the court ordered that the judgment theretofore entered by confession in favor of the plaintiff and against the defendants, in the sum of $12,238.52, be vacated, set aside, and for nought esteemed. “It is considered by the Court that the plaintiff take nothing- by this suit, and that the defendant have and recover of and from the plaintiff the costs of the defendant herein expended, and that execution issue therefor. ’ ’ From this order plaintiff perfected her appeal to this court. This court in the April term, 1933, affirmed the judgment of the lower court for the reason that the abstract did not comply with Rule 4 of this court. This cause was then taken by certiorari to the Supreme Court which at the June 1934 term thereof held that the abstract was sufficient within Rule 4, and that this court was in error to hold otherwise; reversed and remanded the cause to this court with directions to consider the cause upon errors properly assigned.

Plaintiff, Isabelle W. Shumway, contends that the trial court erred in sustaining defendant’s demurrer to plaintiff’s declaration; in vacating and declaring null and void the judgment previously entered by way of confession; and in adjudging that no cause of action existed in favor of plaintiff and that she take nothing by her suit, after she had elected to stand by her declaration.

We believe these are the grounds of complaint from the statement made on page 53 of the statement, brief and argument of plaintiff, and also from the statement on pages 4 and 5 of plaintiff’s reply brief. Therefore, we will consider these alleged errors although some other questions are raised in plaintiff’s brief.

This is a suit in trespass on the case of promises. The declaration complains of Dorice D. Shumway and Hiram M. Shumway, defendants, and alleges: “. . . The Defendants, Dorice D. Shumway and Hiram M. Shumway have heretofore to-wit given their certain promissory notes” and then describes the notes as running to Glenn F. Shumway and by him indorsed to the plaintiff. The declaration further alleges: “. . . on to-wit the 27th day of January, 1926, the said Dorice D. Shumway and Hiram M. Shumway made and executed their note” describing same, and, “on to-wit April 7, 1926, they made, executed and delivered to the plaintiff another note” describing same, and adds, “each of said notes were then and there delivered to the plaintiff, and each of said notes the defendants by the name, style and description of Dorice D. Shumway and Hiram M. Shumway, promised to pay ...”

From this declaration it is perfectly apparent that the declaration charged that Dorice D. Shumway and Hiram M. Shumway executed certain notes. The notes themselves show that the notes and each and all of them were signed :

“D. D. Shumway Estate
By Dorice D. Shumway Ex
By Hiram M. Shumway Ex”

Whether these notes became a part of the declaration because the judgment was entered by confession in vacation, or by defendant craving* oyer and then incorporating them in the demurrer, as contended by defendant (National Council of Knights & Ladies of Security v. Hibernian Banking Ass’n, 137 Ill. App. 175) we will not discuss, for the reason that no complaint is made thereof by either side, and all litigants hereto have treated the matter as if the notes had been set out in the declaration. This shows that the plaintiff declared on instruments signed personally by Dorice D. Shumway and Hiram M. Shumway, and on their personal promises to pay. The notes show instruments signed “D. D. Shumway Estate,” and a promise to pay by the D. D. Shumway Estate. In each case the name “D. D. Shumway Estate” was executed by “Dorice D. Shumway, Ex.,” and “Hiham M. Shumway Ex.” This constitutes a material variance between the contract declared on and the notes incorporated in the declaration. Where there is a material variance between the contract declared on and the contract proved it is fatal. Farley v. Dean, 196 Ill. App. 389; Wheeler v. Reed, 36 Ill. 81. In our opinion defendant’s demurrer to plaintiff’s declaration, which pointed out the variance, was properly sustained.

After defendant’s demurrer was sustained plaintiff elected not to ask leave to amend her declaration but stood by her declaration, to which the court had properly sustained a demurrer, because the declaration, taken together with the notes, made a part thereof by oyer, did not state a cause of action against Dorice D. Shumway and Hiram M. Shumway. It, therefore, follows that the trial court properly vacated and declared null and void the original judgment entered by way of confession which had been opened on defendant’s motion. Said motion is not before us, and no complaint is made of the propriety of the court in so opening that judgment.

The court properly adjudged that the plaintiff take nothing by her suit and that the defendant have and recover of and from the plaintiff the costs of the defendant herein expended and that execution issue therefor. There was nothing else for the court to do, because there was no declaration stating a cause of action against the defendants.

Plaintiff spends considerable time in her brief discussing the propriety of the court in allowing the defendant to file a demurrer after the judgment had been opened, and the defendant had been granted leave to plead to the merits. We do not feel that this question is properly before us. However, the question might have been presented by plaintiff’s filing a motion to strike the demurrer because inconsistent with the leave granted to plead to the merits. This was not done, and the plaintiff cannot complain at this time because the court considered the demurrer, and ruled upon it.

Plaintiff argues at great length that there is or may be a personal liability on the part of Dorice D. Shumway and Hiram M. Shumway on these notes; that may or may not be true but the question is not involved here at all, the sole question being a clear variance between the allegations of the declaration and the notes made a part thereof.

Complaint is made that the defendants can only deny the execution of the notes by verified plea. They do not deny the execution of the notes incorporated in the declaration, but contend the notes incorporated in the declaration are not in accordance with the allegation describing the notes in the declaration.

Some cases are cited wherein the maker of a note signed his name and followed it with some descriptive matter. These cases are, of course, not in point, for the notes here were signed “D. D. Shumway Estate. By Dorice D. Shumway Ex. By Hiram M. Shumway Ex.”

In our opinion defendant’s demurrer was properly sustained, and plaintiff electing to stand by her declaration, the proper judgment was entered. The trial court did not err in his rulings on these matters, and the judgment of the trial court is hereby affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Davis

license: Public Domain

text:
    Ethel S. Carpenter, Appellee, v. Anna Young, Appellant. Katie Cooper et al., Defendants.
    Gen. No. 8,884.

      Heard in this court at the January term, 1935.
    Opinion filed April 12, 1935.
    Martin & Hutchens and F. R. Wiley, all of Decatur, for appellant.
    Redmon, Redmon & Bodman, of Decatur, for appellee.
   Mr. Justice Davis

delivered the opinion of the court.

On September 14, 1934, the circuit court of Macon county entered a decree in a foreclosure proceeding pending in said court wherein Ethel S. Carpenter was complainant and Katie. Cooper, Alph F. Cooper, Esther Cooper, Chester E. Cooper, Gertrude Cooper, Joseph E. Cooper, Kathryn R. Cooper, the Millikin Trust Company, a corporation, W. T. Delahunty & Co., Inc., and Anna Young were defendants. By the terms of the decree the court reformed the trust deed sought to be foreclosed and ordered said defendants to pay to the complainant, within five days, the sum of $4,536.51 and costs, and that in default thereof the premises described in said trust deed as reformed be sold. This appeal was taken by Anna Young from said decree.

Appellee suggests that appellant did not observe the rules of court as to the title- of this cause on appeal. This is true. An examination of paragraphs 1 and 2 of section 21 of the Civil Practice Act, Cahill’s St. ch. 110, 1i 149, and Rule 33 of the Supreme Court makes it clear that in all appeals the relative position of the parties and their designation as plaintiffs or defendants shall be the same as in the court whose action is in question, with the further designation in the title of the case as appellants and appellees.

Section 81 of the Civil Practice Act, Cahill’s St. ch. 110, j[ 209, provides that when a judgment, order or decree shall be rendered in any court of record in any case or proceeding whatever against two or more persons, either one of said persons shall be permitted to appeal, just as was the case under section 97 of the Act of 1907.

When Anna Young gave notice of appeal and her codefendants failed to prosecute separate appeals, or appear and become coappellants, by serving and filing the required notice, they were automatically severed and by perfecting her appeal she became the sole appellant, but this does not mean that such codefendants are not parties in this court. The appeal being a continuation of the suit in the circuit court, the parties to the record are bound to follow the appeal. All of the parties to the record in the circuit court are still parties to the record in this court. The further designation of -appellants or appellees should not be given co-parties failing to appeal as is sometimes erroneously done. Northern Trust Co. v. Thompson, Quindry’s Appellate Practice, 554^556. Announcement by Justice Thompson of the Supreme Court on a motion to dismiss the writ of error in said cause because of a lack of necessary parties.

Ethel S. Carpenter, appellee herein, in her bill of complaint alleged in substance that Alfred A. Cooper and Katie Cooper, his wife, on the second day of February, 1917, being indebted to the Millikin Trust Company, in the sum of $4,200, made and delivered to said corporation a note payable to bearer in five years after date, and on said day said Alfred A. Cooper was the owner of Lot Five (5), also five (5) feet off the entire east side of Lot Six (6) of the Surveyor’s Subdivision of all that part of the Southwest Quarter of the Northeast Quarter of Section Sixteen (16), Township Sixteen (16) North, Range Two (2) East of the Third Principal Meridian, South of the Decatur and Springfield road, as per plat recorded in the Recorder’s Office in Book 149, page 102; and intending to convey said property in trust to secure the payment of said note, did on that day, by a mistake of the scrivener, convey the lands described as: Lot Five (5) also five (5) feet off the entire west side of Lot Six (6) of the Surveyor’s Subdivision of all that part of the Southwest Quarter of the Northeast Quarter of Section Sixteen (16), Township Sixteen (16) North, Range Two (2) East of the Third Principal Meridian, South of the Decatur and Springfield road; that at the time of the conveyance said grantors had no interest in the west five feet of said Lot Six, but that it was mutually intended by the grantors and by the Millikin Trust Company that the east five feet of said Lot Six be described in said trust deed and conveyed; that in ignorance of the mistake the Millikin Trust Company filed said trust deed for record on February 6, 1917.

That said note and mortgage have been duly assigned and transferred to complainant for a valuable consideration and are now held and owned by her; that $1,200 was paid on the principal on August 15, 1919, and that thereafter by agreement the time of payment was extended to February 2, 1932, and that there was a default in the payment of the principal and interest since August 2, 1931.

It is alleged that Alfred A. Cooper died testate June 22, 1923, seized of the premises intended to be mortgaged, and devised his real estate to Katie Cooper, his wife, for and during the term of her natural life, with power of sale of the fee of said lands, with remainder to his three sons, naming them.

It is alleged upon information and belief that Anna Young, and others named, have or claim an interest in the mortgaged premises or some part thereof.

Complainant prays that said trust deed may be reformed so as to truly describe said premises intended to be conveyed to secure such indebtedness and that the amount due be ascertained and that in default of payment of same the premises intended to be conveyed by the trust deed be sold.

Appellant filed her answer to said bill of complaint on October 5, 1933; all other defendants were defaulted and the cause was referred to the master in chancery of said court, who made a report and a decree pro confesso as against all of the defendants who entered by the court at the October term, A. D. 1933, thereof, which decree was vacated and set aside by the court at said same term on motion of appellee and the cause re-referred to the master.

Prior to the entry of the order of re-reference appellant filed an amended answer to said bill of complaint. In her amended answer she denies that the premises were misdescribed in the trust deed and denies that the premises intended to be conveyed should have been described as five feet off the entire east side of Lot six. Appellant further denies that it was mutually intended that the east side of Lot six he described in said trust deed.

Appellant states in her answer that on May 12, 1924, she became the owner in fee simple and for a good and valuable consideration of that portion of the premises last described (in which description is included the five feet off of the east side of Lot six in dispute), and that she is now the owner thereof; that she had no knowledge or information that there was any pretended lien on said premises as alleged in the bill of complaint at the time, and prior thereto, that she purchased the same; that she immediately entered into possession of the same and built a valuable residence thereon.

The master in chancery after taking the testimony made his report, to which objections were filed by appellant and overruled by the master, and such objections were by the court ordered to stand as exceptions to said report and upon a hearing thereon they were overruled and a decree was rendered in which said trust deed was reformed and the amount due complainant ascertained and an order entered requiring the defendants to pay the same by a short day and in default thereof that the mortgaged premises including the five' feet off of the east side of said Lot six which is owned by appellant be sold.

Among the errors reliéd upon by the appellant for a reversal of the decree are: That the decree is contrary to the law and the facts; that the court erred in decreeing a reformation of the trust deed after the legal and equitable rights of appellant had become established by reason of the fact that appellant purchased the premises in question without any record or actual notice of a mistake in said trust deed, and after appellant had paid a valuable consideration for said premises and built thereon an expensive home; that the court erred in decreeing that the premises owned by appellant, Anna Young, should be sold.

It is incumbent upon a complainant to prove all of the material allegations contained in his bill of complaint by a preponderance of the evidence as to all defendants who are not in default. And when the reformation of a document is sought as in this case, it will not be granted upon a probability or upon a mere preponderance of the evidence but only upon evidence amounting to a certainty. It will not be granted upon evidence that is loose, equivocal or contradictory. The proof must be such as will strike all minds alike as being unquestionable and free from reasonable doubt. The authorities all require that parole evidence of the mistake and of the alleged modification must be of such a nature that the allegations are “established beyond a reasonable doubt.” Holbrook v. Tomlinson, 304 Ill. 579-585.

«i rp}ie ru¡e has not only been announced but has been consistently adhered to in a long line of decisions in this State, that to justify the correction or reformation of a deed in equity the evidence must be of a very strong and convincing character that there was a mutual mistake by the parties in the respect alleged.” Anderson v. Stewart, 281 Ill. 69.

Tested by the above rules it is clear that the relief prayed for cannot be decreed as against appellant. This trust deed was filed for record on February 6, 1917, and for over 10 years appellee failed to claim any interest in the land in question or assert any claim or title thereto. Appellant purchased the real estate of which the premises in question is a part on May 12, 1924, from the devisees of Alfred A. Cooper and paid $3,500 in cash for the same and built a house thereon and expended in all about $22,000 in the purchase and improvement of the same.

The evidence is undisputed that she purchased the same and acquired title thereto, without any knowledge or information that there was any such lien on said premises in dispute as is alleged in the bill of complaint, and that she immediately entered into possession of the same and made valuable improvements thereon. The record in the case fails to show that any witness testified as to any act or words of either the mortgagors or mortgagee at the time the trust deed was made as to what property was to be conveyed thereby or any evidence as to any mutual mistake.

The only evidence offered by appellee as to the intention of the parties was by the witness, Colette Mowen, who testified she was deputy recorder of deeds and familiar with the records in that office and that she examined the trust deed of date February 2, 1917, from Alfred A. Cooper and Katie Cooper to the Millikin Trust Company for Lot five and also five feet off the west side of Lot six, and found the title to be in persons other than Alfred A. Cooper and wife, but found that said Alfred A. Cooper owned the east five feet of said Lot six and that she believed the intention of Alfred A. Cooper was to convey said five feet off of the east side of Lot six instead of five feet off of the west side of Lot six.

The evidence in the record falls far short of being sufficient to authorize a court of equity to reform said trust deed as against appellant who is a purchaser for value and without notice.

In cases of mistakes in written instruments as against bona fide purchasers for a valuable consideration without notice of the mistake, courts of equity will grant no relief. Harms v. Coryell, 177 Ill. 496, 504. The grantee in. a trust deed is not entitled to relief against a mistake in description against a party who, for a valuable consideration, has purchased the property from the mortgagor without actual notice of such mortgagee’s rights, unless they are in some manner chargeable with constructive notice thereof.

It is insisted by appellee that the recording of the trust deed in question was constructive notice to appellant and would put her upon inquiry and that she is not a purchaser for value without notice.

The record of a trust deed operates as constructive notice only so far as the property is correctly described, unless it is apparent from the record itself that there is a misdescription. Slocum v. O’Day, 174 Ill. 215; Harms v. Coryell, supra.

Appellee has failed to suggest any reason why the recording of the trust deed in question was such constructive notice as would put appellant upon inquiry as to what property was intended to be conveyed and we fail to find any.

No mistake was apparent from the record itself. The description was complete and there was nothing to indicate that anything was intended other than what was actually done. We are of opinion that the court erred in entering the decree reforming the trust deed in question and directing appellant to pay to complainant the amount found due and on failure to do so that the premises in question be sold.

In the view we take of the case it will be unnecessary to consider the other grounds urged by appellant for a reversal of the decree.

The decree of the circuit court of Macon county is reversed and the case remanded.

Reversed and remanded.


text:
    The Trustees of the Danvers Literary and Library Association et al., Appellants, v. John F. Skaggs et al., Appellees.
    Gen. No. 8,890.

      Heard in this court at the January term, 1935.
    Opinion filed April 12, 1935.
    Wayne C. Townley, J. Oscar Hall and Louis L. Williams, all of Bloomington, for appellants.
    Martin, Hoose & DePew, of Bloomington, for appellees.
   Mr. Justice Davis

delivered the opinion of the court.

The original declaration in this case was filed in the circuit court of McLean county on September 15, 1932, by the plaintiffs, in which it was sought to recover from John F. Skaggs, Sarah E. Willerton, Esther Remus and Walter A. Yoder, administrator with the will annexed of the estate of Louis E. Skaggs, deceased, who are named defendants as administrator and devisees of the said Louis E. Skaggs, deceased, the amount due upon a certain note held by the plaintiffs and executed by said Louis E. Skaggs in his lifetime, the suit being based on sections 10, 11 and 12 of the Statute of Frauds and Perjuries (Cahill’s Rev. St. 1933, ch. 59, 10, 11 and 12), which provide in substance that when any lands shall be devised and the personal estate of the devisor shall be insufficient to pay all demands against said estate, said devisees shall be liable to the creditors to the full amount of the lands devised to them.

After the death of one of the defendants named in the original declaration an amended declaration was filed by plaintiffs adding new parties defendant.

By their amended declaration plaintiffs stated a cause of action, based on sections 10, 11 and 12 of the Statute of Frauds and Perjuries, against the defendants as devisees of Louis E. Skaggs, deceased, for the recovery of the amount due on a promissory note executed by Louis E. Skaggs in his lifetime.

On February 22, 1934, all of the defendants except Walter A. Yoder, administrator with will annexed and Maurice Stern, administrator de bonis non with will annexed of the estate of Louis E. Skaggs, deceased, filed pleas or a joint answer to the declaration of plaintiffs, setting forth four defenses relied upon by them to defeat the action of the plaintiffs.

Plaintiffs treating the answer filed by the defendants as pleas to the declaration filed a demurrer to the fourth plea of the defendants by them pleaded to the amended declaration, which was overruled by the court on August 16, 1934, and thereupon the plaintiffs filed replications to said pleas of said defendants. .

The parties thereupon entered into a stipulation as to the facts and further stipulated that the issues joined should be submitted to the court for trial without the intervention of a jury, and on September 27, 1934, the cause was tried by the court. The judgment of the court was that the plaintiffs take nothing by this suit and that the defendants have, execution against the plaintiffs for costs.

The errors relied upon by appellants for a reversal of said judgment are as follows:

1. That the court erred in overruling plaintiff’s demurrer to the fourth paragraph of defendant’s answer as amended.

2. The court erred in finding the issues for the defendants on the pleadings and on the stipulation of facts.

3. The court erred in rendering judgment for the defendants and against the plaintiffs in this action.

4. That the judgment of the court is not sustained by the facts as stipulated.

5. That the judgment of the court is against and contrary to the facts as stipulated.

In their argument appellants say that the questions to be decided are as to whether the lower court erred in overruling plaintiff’s demurrer to the fourth paragraph of defendants’ answer and as to whether the court erred in finding the issues for the defendants on the pleadings and stipulation of facts and in rendering judgment for the defendants.

Rule 1 of the Rules of Practice and Procedure adopted by the Supreme Court provides that except as provided by that rule, or by written stipulation of the parties or by order of court, proceedings instituted prior to January 1, 1934, shall not be governed by the Civil Practice Act. This suit having been instituted prior to January 1, 1934, and the declaration and all pleadings, except the answer of the defendants, having been in conformity to pleadings at common law, such cause is not governed by the Civil Practice Act.

The well recognized rule at common law is that when a person files a demurrer which is overruled and pleads, without standing by his demurrer, the demurrer is waived. The plaintiffs having filed a replication to the plea of the defendants cannot now assign as error the action of the court in overruling such demurrer.

The issues raised by the first and second pleas of the defendants and the replications of the plaintiffs thereto, are as to whether the note in question was ever delivered by Louis E. Skaggs in his lifetime or accepted by plaintiffs.

Defendants contend the evidence fails to establish that the note in question was ever delivered by Louis E. Skaggs or accepted by the plaintiffs. The plaintiffs say that it is stipulated that the decedent did “make and execute” the note in question; that a note is not executed until it is delivered, and that the stipulation that the note was executed is equivalent to a stipulation that it was delivered.

A note takes effect from the time of its delivery, and until it is delivered a note is not executed. Defendants failed to file any affidavit or verified plea denying the execution of the note in accordance with the provisions of section 52 of the Practice Act of 1907.

No question having been raised by the plaintiffs, in the circuit court, as to the sufficiency of the plea of defendants denying the delivery of the note sued upon, and plaintiffs having replied thereto, and that issue having been submitted to the court for trial, plaintiffs cannot now be heard to say that because it was stipulated that the decedent did “make and execute” the note such stipulation amounted to a waiver of the plea denying the delivery of the same filed by defendants.

From the stipulation it appears that the note, after the same was signed by Louis E. Skaggs, remained in his possession during his lifetime, and the question of delivery and acceptance must be determined from the facts as stipulated by the parties.

There may be a valid delivery by the maker and an acceptance by the payee of a note, even though the maker retains possession of the same, when the evidence in the record shows that the note was held by the maker as agent of the payee, by the placing of said note among the papers of' the payee of which the maker may have possession as agent, with the intention of delivering the note to such payee, and in such case no manual delivery is necessary.

From the evidence there can be no doubt as to the intention of Louis E. Skaggs. After having made the note he placed the same among the records and papers of the Danvers Literary and Library Association, of which he was treasurer, and in whose custody and possession all of the records, notes, moneys and papers of said association were kept, and not only did he place said note in question among the records and files of said association but he also paid the interest that accrued on said note the first year and indorsed the payment thereof on the back of said note and credited the amount of said interest on the books of the association.

All of the books and papers of said association of which he was the custodian by virtue of his office as treasurer were kept by him in his home, and upon his death were turned over to said Danvers Literary and Library Association by the administrator of his estate, including the note in question, and the fact that such note was among the books and papers and property of the association would, when considered with the other evidence in the case, be sufficient to establish the delivery of the note by Louis E. Skaggs in his lifetime and the acceptance thereof by the plaintiff.

In the case of Williams v. Galt, 95 Ill. 172, the only question for determination by the court was whether the plaintiff had title to the note in controversy at the time he commenced his suit. The suit was brought by Robert A. Galt against Taylor Williams on a note payable to Patterson & Co., and by them indorsed and delivered to the plaintiff on January 16, 1878, and was placed in an envelope that contained other papers that belonged to the plaintiff, and at the same time they credited their account of bills receivable and charged the account of the plaintiff. On the next day the firm of Patterson & Co. made a voluntary assignment for the benefit of creditors. The note was not included in the schedules of property delivered to the assignee, but whether it was in fact delivered to the plaintiff other than by being placed with his private papers on special deposit for safe-keeping in the bank before the assignee received the key of the banking house containing the effects of assignors is not definitely proved. The court said: “If the assignment made on the 17th day of January affected the note at all, it was the equitable ownership and not the legal title to it. That passed, by the indorsement of the payees to plaintiff, and it is no concern of the maker who may be the equitable owner of the proceeds of the note. But under the evidence it is apparent plaintiff is both the legal and the equitable owner of the note, and may rightfully maintain an action to enforce collection.”

In the case of Wiley v. Stewart, 23 Ill. App. 236, James Stewart sued the firm of O. J. Wilson & Company on a note purporting to be signed by said firm. The firm was composed of 0. J. and Wm. Wilson and appellant, Samuel C. Wiley, who were carrying on a general trading business. Wm. Wilson and O. J. Wilson were also carrying on a general banking business and Wm. Wilson was general manager of the bank. James Stewart, appellee, had a general deposit account with the bank with power in Wm. Wilson to draw money for appellee and loan it for him.

Wm. Wilson withdrew $800 and loaned it to O. J. Wilson & Company, of which he was one of the partners, and charged the amount to appellee’s account with the bank and gave credit on the books to 0. J. Wilson & Company on their account. Appellee Stewart had a private package of papers in the bank belonging to him and allowed Wm. Wilson to loan his money and place the notes in this package for appellee. The note in question was signed by Wm. Wilson in the firm name of 0. J. Wilson & Company, on August 1, 1884, and placed in said private box for appellee. Appellee knew nothing of the transaction until after the bank went into the hands of an assignee on December 19, 1884.

It was contended that the note was never delivered by Wm. Wilson to appellee. The court said: “We do not think this position tenable. The note was duly signed and put in the private box of appellee, kept at the bank for the reception of such paper, and all the credits and charges duly entered by Wm. Wilson in the bank books, both in the account of O. J. Wilson & Company and that of appellee. This shows a clear intention on the part of Wm. Wilson, appellee’s agent, to deliver the note to him and no manual delivery was necessary, nor did it make any difference that the note passed into the hands of the bank’s assignee before it was handed over to appellee.” This opinion of the Appellate Court was expressly approved by our Supreme Court in this same case. Wiley v. Stewart, 122 Ill. 545-551.

An action similar to the one at issue was passed upon by the Appellate Court of Indiana in the case of Indiana Trust Co. v. Byram, 36 Ind. App. 6, 72 N. E. 670, in which case a transfer to the Supreme Court was denied.

A claim was filed against the estate of Norman S. Byram, deceased, by Sophronia A. Byram, appellee, upon which she recovered judgment and the Indiana Trust Co., as executor, appealed. From 1878 to the time of his death the decedent was agent of appellee, who was his cousin, and loaned and reloaned, invested and reinvested her money in the purchase of stocks, bonds, notes and other securities, retaining them in his exclusive possession and acting without pay and rendering an annual statement about January 1st each year, except that he rendered none for January 1, 1902, in the early part of which year he died.

He kept the papers and securities in his private safe in his office in a paper box, on which was written S. A. Byram. During* his last illness he directed that the box be brought to his home, and after his death it was found in a locked bureau drawer. It contained the note for which the claim was filed, and upon which judgment was obtained. The box also contained notes, stocks and bonds belonging to appellee. The note in question had indorsements of payments written upon the back thereof in the handwriting of the decedent. The statements rendered appellee did not make any reference to the note sued upon. It was held that the inference of delivery necessarily arose from the facts in the case.

It is stated in the opinion that absolute retention of control over the instrument by the maker is inconsistent with the intention to deliver, but that cases of this class are distinguishable from the one at bar in that the maker of the note sued upon was the agent of the payee expressly authorized to take and hold the paper for her.

In answer to the contention that an agent cannot act as such when his personal interest is or may be antagonistic to that of his principal and therefore decedent could not deliver his note to himself, as agent of appellee, the court said: “The rule invoked is a wise and salutary one. It is designed to guard against the abuse of fiduciary duty, and all such transactions are void ‘as respects the principal unless ratified by him with a full knowledge of all the circumstances.’ ”

The court further said: “The doctrine asserted would be applicable were the agent attempting to compel his principal to take his note in the final settlement of their affairs, instead of the money with which he had been intrusted. It is not applicable where the principal elects to enforce the note made by the agent as in the case at bar.” The judgment of the lower court was affirmed,

We are of opinion that under the facts in this case the note was delivered by the maker and accepted by the plaintiffs.

Appellees in the last paragraph of their fourth plea or answer to the declaration of the plaintiffs contend that plaintiffs are barred because they failed to file their claim within one year from the granting of letters of administration as provided for in section 70 of the Administration Act, Cahill’s St. ch. 3, j[ 71. It has been held in numerous cases that the heirs and devisees of a deceased person in such actions as this cannot avail themselves of this statute. This act can only be interposed by an executor or an administrator.

By their third plea appellees interposed the five-year statute of limitations. There is no merit in this contention of appellees. This action was brought under sections 10, 11 and 12 of the Statute of Frauds and Perjuries, Cahill’s St. ch. 59, jfíf 10-12, and the general statute of limitations alone applies to such actions. Straus Brothers Co. v. Rush, 241 Ill. App. 216; Union Trust Co. v. Shoemaker, 258 Ill. 564; Durflinger v. Arnold, 329 Ill. 93, 99; First Nat. Bank of Hinckley v. Clark, 275 Ill. App. 282.

In Ryan v. Jones, 15 Ill. 1, Ryan brought an action in debt under the Statute of Frauds and Perjuries against John C. Jones, as executor and devisee of Michael Jones, upon certain promissory notes made by said Michael Jones in his lifetime. The Supreme Court held: “In joint actions under the statute, the executor or administrator may insist upon this limitation of two years; and if he does so successfully, the plaintiff must take judgment against him to be satisfied out of newly discovered estate. But heirs and devisees cannot rely upon this limitation. They may insist upon the general statute of limitations; and, if successful, may wholly defeat a recovery against them.” An action may be commenced upon a promissory note at any time within 10 years next after the cause of action accrues.

There being no statutory period of limitation within which the lien which creditors have upon the real estate of their deceased debtors for the satisfaction of their debts, and which they may enforce through administration, our courts, in analogy to our statutes of limitations relating to the liens of judgments, have adopted the period of seven years as a time within which application should be made. This does not apply to actions based upon sections 10, 11 and 12 of the Statute of Frauds and Perjuries, and the plaintiffs in such actions have no lien upon the real estate which descended to the heirs or devisees.

Appellees say that the record may be searched from beginning to end and it cannot be shown that the decedent, Louis E. Skaggs, ever received any money for the note in question. Under the provisions of our statute any negotiable instrument is deemed prima facie to have been issued for a valuable consideration. And when a plaintiff produces a note payable to the order of himself and the same is admitted in evidence, it makes a prima facie case for him. If the defendant wishes to interpose the defense of a failure or want of consideration it must be pleaded specially, and no such plea was interposed by the defendants in this case and that question is not before us for consideration.

A good cause of action is stated in plaintiffs’ declaration. It is alleged that Louis E. Skaggs, on March 1, 1927, executed his note calling for the sum of $650 in five year's payable to the order of.the plaintiffs; that he departed this life on September 13, 1929, testate; that Walter A. Yoder was appointed administrator with the will annexed of his estate on October 21, 1929; that said Louis E. Skaggs at the time of his death was the owner of personal property and of real estate which was described in the declaration; that he did not have sufficient personal property to pay the claims filed against his estate; that said real estate has been taken and possessed and is now being held by the defendants as heirs and devisees of said Louis E. Skaggs, deceased, and is of the value of $10,000; and that said indebtedness has not been paid, and that by force of the statute said heirs and devisees are liable to pay plaintiffs said money. Ch. 59, If 12, Cahill’s St. 1933.

This same section 12 also provides that when any heir or devisee shall be liable to pay debts of his executor or devisor in regard to any lands descending or being devised to him and shall sell or alien the same before action brought or process sued out against him, such heir or devisee shall be answerable for such debt to the value of the land sold by him, aliened or made over, and execution may be taken out upon any judgment so obtained against any such heir or devisee to the value of said land as if the same were his own proper debt, saving and excepting that land by him bona fide aliened, before the action brought, shall not be liable to such execution.

Section 13 of said act provides: When any action is brought against any heir or devisee he may plead riens per descent at the time of the commencement of the action and plaintiffs may reply that he had lands from his ancestor or devisor before commencement of the action, and if upon issue joined it be found for the plaintiff, the jury shall inquire of the value of the lands so descended or devised and judgment shall be given and execution awarded as aforesaid.

In order to avoid the provisions of said statute the defendants by their fourth plea allege that they were not possessed of certain of the real estate described in the declaration and that the same had been conveyed prior to the commencement of said suit, and that the administrator filed an inventory of said estate including the lands described in the declaration and that within one year after letters issued claims amounting to $7,267.52 were filed and that the personal estate was not of sufficient value to pay said claims; that before the expiration of the year defendants sold said real estate to Henry Oldham for $25,350 and turned the money over to said administrator to be used in the payment of all debts against said estate, and that all the debts were paid and the balance of said money was paid over to the defendants, Sarah E. Willerton, deceased, and John S. Skaggs, as their distributive shares, and that the amount distributed was more than sufficient to pay plaintiffs ’ claim in full; that plaintiffs filed claims against said estate which were paid in full; that the note sued on was turned over to plaintiffs by said administrator shortly after he took over his duty as such administrator, and that plaintiffs with full knowledge of all the facts did not present such claim for allowance nor commence any proceeding until this suit was instituted, and that it was the duty of the plaintiffs to have filed said claim within a year after letters were granted in said estate, and because of their failure so to do there has been sufficient laches to bar this action.

As to such fourth plea plaintiffs replied that they did not file a claim against said estate and that there was not sufficient personal property inventoried or possessed by said Louis E. Skaggs at the time of his death to pay the claims filed against said estate and to pay their claim; that it is not alleged in said plea that plaintiffs had any knowledge or notice of such contract with said Henry Oldham and the payment of said money to said administrator.

At common law, if the heir had aliened the land which he had by descent before the action was brought, the creditor had no remedy against him and he could plead riens per descent when the suit was commenced, which was a perfect defense. Monroe v. Becker, 283 Ill. 42. However, under the provisions of the Statute of Frauds and Perjuries above referred to, when an heir or devisee sells land before the action brought, he shall be answerable for such debt to the value of the land so aliened by him.

The defendants pleaded Hens per descent at the time of the commencement of the action, which would have required plaintiffs to have replied, that defendants had lands from their ancestor or devisor before the commencement of the action, had the defendants not further alleged in said plea that they sold said lands and turned the money over to the administrator for the payment of the debts against said estate, and that after the payment of the debts the balance of said money was paid over to Sarah E. Willerton and John F. Skaggs as their distributive shares.

Plaintiffs were not guilty of laches under the facts and circumstances alleged in the fourth plea of defendants by failing to sooner assert their rights by the institution of some action to recover upon the note sued upon.

Mere delay will not constitute laches, but -the delay must be such as to work to the disadvantage of the other party. Lutyens v. Ahlrich, 308 Ill. 11. Hnder th°e facts in this case plaintiffs, could commence their action at any time before the same was barred by the statute of limitations, and something more than mere delay to bring suit is necessary to constitute such laches as will bar them of their remedy. There must be some act done or allowed, some change of relations or conditions, which makes it inequitable to enforce the legal right. Lynn v. Worthmgton, 266 Ill. 414. Even though the defendants may have sold the lands mentioned in their plea and have given the money realized from the sale of the lands to the. administrator of said estate with which to pay the claims allowed against said estate, and even though all claims were paid and the balance of the money was paid over to Sarah E. Willerton, now deceased, and John F. Skaggs, as their distributive share, and said sum was more than sufficient to pay the claim sued on, plaintiffs were not required to file their claim against said estate within one year from the time letter of administration was granted, but had a right to rely upon the cause of action given them by the Statute of Frauds and Perjuries, the personal property of the said Louis E. Skaggs being insufficient to discharge the just demands against his estate. Said money so placed in the hands of the administrator by the defendants, received by them from the sale of said lands, not being assets in the hands of said administrator for the payment of debts within the meaning of par. Ill of chapter 3, Cahill’s St. 1933, as contended for by defendants.

No part of the money turned over to said Yoder as administrator, nor the contract with, said Oldham, was inventoried by said administrator as assets of said estate, and plaintiffs had no knowledge of said contract with Henry Oldham for the sale of said real estate, nor of the terms thereof, until after the expiration of one year from the time the letters of administration were issued to said Walter A. Yoder as such administrator and neither the plaintiffs nor said Walter A. Yoder were parties to said contract.

Defendants because of such delay by plaintiffs in causing an action to be instituted for the collection of the amount due on said note, so far as the record discloses, are at no more of a disadvantage than they would have been had a claim been filed in said estate within one year from the granting of letters, and no change of conditions has taken place that makes it inequitable for plaintiffs to enforce their legal rights. Plaintiffs had no lien against the lands devised to said defendants that would prevent the sale of the same by defendants, and they were at liberty to sell and dispose of the same or make use of it as fully and freely as if plaintiffs had no cause of action against them. There was delay only, on the part of plaintiffs, and in such case the statute is the only limitation of the right to sue. Lynn v. Worthington, supra.

The matters alleged by the defendants in their fourth plea would not bar plaintiffs’ cause of action. It would, however, bar plaintiffs from recovering a personal judgment against such of said defendants as sold lands devised to them and described in said plea, as to so much of the purchase price received by them as was actually used in the payment of the debts of said Louis E. Skaggs, but not as to any surplus over and above such amount.

It is alleged in the declaration and not denied by the defendants by any plea filed by them that they took and now possess lands other than those described in their said fourth plea and which are now held by them as heirs and devisees of said Louis E. Skaggs, deceased, it being also stipulated by the parties to this suit that the defendants are now the owners of and in possession of all the lands described in the declaration, except that part conveyed to Henry Old-ham, and that the defendant, Esther Remus, is the owner of said Lots 13 and 14, in Block 1 in Second Addition to the Village of Danvers.

We are of opinion that the circuit court of McLean county erred in holding that plaintiffs were barred because they failed to file their claim within one year from the date of the granting of letters in the estate of Louis E. Skaggs, deceased, and because of laches in not sooner instituting suit to recover the amount due on said note involved in this litigation, and in entering judgment in bar against plaintiffs.

The judgment of the circuit court of McLean county is reversed and said cause of action remanded for a new trial.

Reversed and remanded.


author: Mr. Presiding Justice O’Connor

text:
    David Heilig, Appellee, v. Continental Casualty Company, Appellant.
    Gen. No. 37,895.
    Heard in the first division of this court for the first district at the December term, 1934.
    Opinion filed April 15, 1935.
    Rehearing denied April 29, 1935.
    George C. Bliss, of Chicago, for appellant.
    Aaron Soble, of Chicago, for appellee; Irving Goodman, of Chicago, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought suit against defendant to recover $1,500, which he claims is an obligation incurred by him in employing’ an attorney to secure the vacation of a judgment of $3,500 entered against plaintiff in a personal injury ease, on the ground that it was defendant’s duty to perform such services. There was a trial before the court without a jury and a finding and judgment in plaintiff’s favor for $418.50, and defendant appeals.

The record discloses that defendant, Continental Casualty Company, a corporation, issued its policy of insurance to plaintiff covering plaintiff’s automobile; that while the policy was in force and effect the automobile, driven by a person other than plaintiff, was claimed to have struck and injured Kate Levitt. She brought suit against Heilig for personal injuries and obtained a default judgment against him for $3,500. After the term of court at which the judgment was entered had passed, payment of the judgment was demanded under an execution. Heilig immediately notified defendant insurance company, claiming he had not been served by summons and had no notice of the suit until the execution was served. Defendant refused to pay the judgment on the ground that it was not liable under its policy because the summons in the personal injury case had not been turned over to it, as the policy provided, and it had no notice that the suit had been brought until the day after the execution had been served on Heilig.

Afterward Heilig employed counsel to file a bill to set aside the judgment and the purported service of process on him in the personal injury case. That suit was heard and a decree entered finding that no service had been had on Heilig in the personal injury case, the judgment was vacated and set aside, the service quashed, and a new summons was ordered to issue against Heilig in the personal injury case.

Plaintiff brought the instant suit to recover the $1,500 for attorney’s fees incurred by him in the chancery suit.

The pertinent conditions of the policy were, “This insurance is subject to the following conditions and failure on the part of the Assured to comply therewith shall forfeit the right of the Assured. . . .

“(2) Notice, Claims and Suits. The Assured shall give to the Company or to its authorized agent immediate written notice of any accident covered hereby and shall also give like notice of claims for damages on account of such accidents. If any suit is brought against Assured to recover such damages the Assured shall immediately deliver to the Company or to its authorized agent every summons or other process served upon him. The Company shall have the exclusive right to contest or settle any of said suits or claims.”

In his brief counsel for defendant discusses the evidence in great detail and points out inter alia the inconsistencies and contradictions of the testimony of certain witnesses called by plaintiff, all of which we think is immaterial, unnecessary, and of no assistance to the court because the trial judge made certain findings of fact, and there is no contention or suggestion by counsel for either side that such findings were not warranted by the evidence. On the contrary, counsel for both parties take the position that the findings are established by the evidence.

The findings of fact are (1) that plaintiff’s wife did not turn over the summons in the personal injury suit to any representative of the defendant, (2) that the defendant did not have any knowledge that the personal injury suit had been brought until after the term had passed at which the judgment was entered, and (3) that plaintiff did not at any time give any notice to any representative of the defendant of the pendency of the personal injury suit until after the execution was served on Heilig.

Defendant contends that plaintiff did not prove the allegations of his statement of claim to the effect that the summons in the personal injury case was served upon plaintiff’s wife and given by her to defendant’s agent, and therefore the judgment cannot stand. So far as we are advised from a reading of the briefs and an examination of the abstract, this point was not brought to the attention of the trial court, and defendant ought not therefore be permitted to raise the point for the first time in this court unless the law clearly warrants his doing so. As a general proposition, a court of review passes only on errors claimed to have been committed by the trial court, and obviously if the matters complained of were not brought to the attention of the trial judge, they ought not be available on review. But counsel for defendant say that it is an elementary rule of law that “the case stated in the declaration or statement of claim” must be proved as alleged, and if not so proved plaintiff must fail. In support of this counsel cite four cases, all of which sustain his contention, but each of these cases was in the circuit, superior or county court where the method of pleading is different from that in effect in the municipal court of Chicago. Long ago it was held that in a case of the fourth class of the municipal court, “if upon hearing the evidence he [plaintiff] appears to be entitled to recover and the court has jurisdiction of the defendant and of the subject matter of the litigation, ’ ’ the judgment will stand regardless of the allegations of the statement of claim, where no objection is made to the statement of claim or on the hearing, that the evidence offered does not tend to prove the allegations of the statement of claim. Edgerton v. Chicago, R. I. & P. Ry. Co., 240 Ill. 311; Bruner v. Grand Trunk Western Ry. Co., 319 Ill. 421. And many years ago the municipal court of Chicago, as it was authorized to do, enacted a rule which provided that “The pleadings in all cases of the first class shall be the same as in cases of the fourth class.” American Credit Indemnity Co. of New York v. Yamer, 170 Ill. App. 350; Newport v. McPherson, 203 Ill. App. 208; Capital State Sav. Bank v. Larson, 255 Ill. App. 479. And Rule 60 of the municipal court of Chicago now in effect makes no distinction between the pleadings in cases brought on contracts, express or implied, of the first and fourth class.

In the instant case, no objection having been made in the trial court by the defendant that the evidence did not prove the allegations of plaintiff’s statement of claim, we hold that the contention is not now available.

The contention of defendant that it was not obligated, under the conditions of the policy above quoted, to employ counsel'to have the judgment of default entered against plaintiff in the personal injury case vacated and set aside, and the service of summons quashed, must be sustained. Under the conditions of the policy the defendant was required to defend plaintiff in any action brought against him only when it was notified that the action had been brought. Obviously it could not defend a personal injury action brought against Heilig* when it had no notice of the pendency of the action.

The trial judge found that defendant had no notice of the personal injury suit until after the term at which the judgment was rendered; that it was first advised of the personal injury case the day after the execution was served on Heilig.

Although the point is not before us, apparently the defendant will now defend the personal injury case since the judgment has been vacated and set aside, and it has been notified of that fact.

We think it would have been of assistance to us had the trial judge briefly stated the reasons for his decision and included them in a report of the proceedings at the trial, as provided by Rule 36 of the Supreme Court and Rule 1 of this court. The rule states: “A brief statement by the trial judge of the reasons for his decision may be included in the report of the proceedings at the trial.”

The judgment of the municipal court of Chicago is reversed.

Judgment reversed.

McSurely and Hatchett, JJ., concur.


text:
    Badeh F. Jabara, Appellant, v. The Equitable Life Assurance Society of the United States, Appellee.
    Gen. No. 37,937.
    Heard in the first division of this court for the first district at the December term, 1934.
    Opinion filed April 15, 1935.
    Smith & Haddad, of Chicago, for appellant; George J. Haddad, of counsel.

      Mater, Meyer, Austrian & Platt, of Chicago, for appellee; Miles Gr. Seeley, of Chicago, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against the defendant insurance company on a policy of insurance, claiming that he was totally and permanently disabled within the meaning of the policy, from April 1, 1928; that July 1, 1932, he made proof of such disability to defendant company; that for July, 1932, and for subsequent months defendant paid him $50 a month; that he was entitled to $50 a month for the 48 months prior to July, 1932, or a total of $2,400, with interest. The statement of claim, on motion of defendant, was stricken. Plaintiff elected to stand on his statement of claim, his suit was dismissed, and he appeals.

The only question is the construction of the insurance policy. Plaintiff contends that under a proper construction of it he was entitled to receive $50 a month from the time he became totally disabled, while defendant insurance company’s position is that he was not entitled to $50 a month until he made proof of his disability to the company.

The pertinent provisions of the policy are: £<Ie the Insured Becomes Wholly and Permanently Disabled Before Age 60 the Society will waive subsequent premiums and pay to the Insured a Disability-Annuity of — Fifty Dollars — A Month subject to the terms and conditions contained on the third page hereof.” On page 3 is the following: ££Total and Permanent Disability. (1) Disability Benefits before age 60 shall be effective upon receipt of due proof, before default in the payment of premium, that the Insured became totally and permanently disabled by bodily injury or disease after this policy became effective and before its anniversary upon which the Insured’s age at nearest birthday is 60 years, in which event the Society will grant the following benefits:—

“ (a) Waive Payment of All Premiums payable upon this policy falling due after the receipt of such proof and during the continuance of such total and permanent Disability; and
“(b) Pay to the Insured, a Monthly Disability-Annuity as stated on the face hereof; the first payment to be payable upon receipt of due proof of such Disability and subsequent payments monthly thereafter during the continuance of such total and permanent Disability.”

The rules governing the construction of insurance policies are the same as those applicable to other contracts. Capps v. National Union Fire Ins. Co., 318 Ill. 350; Bergholm v. Peoria Life Ins. Co., 284 U. S. 489.

In the Capps case the court said (p. 354): “The principles governing the interpretation of insurance contracts are the same as those applicable to other contracts.....Our function is to construe the contract before us and not to make a new one.” And in the Bergholm case the Supreme Court of the United States said (p. 492): “Contracts of insurance, like other contracts, must be construed according to the terms which the parties have used, to be taken and understood, in the absence of ambiguity, in their plain, ordinary and popular sense.” It is only when there is ambiguity in a policy that the law invokes the rule that it shall be construed most favorably to the insured and .against the insurance company.

We think the policy is clear and unambiguous in the instant case. It provides that the payment of $50 a month for disability commences when the proof of disability is made. It specifically provides that, “the first payment to be payable upon receipt of due proof of such Disability and subsequent payments monthly thereafter during the continuance of such total and permanent Disability.” This language is plain and there is no room for construction. The first payment of $50 is payable “upon receipt of due proof of such Disability” and subsequent payments “monthly thereafter. ’ ’

A number of authorities are cited by both parties. Plaintiff cites among other cases Felton v. Equitable Life Assurance Society,. — Ark. —, 71 S. W. (2d) 1049; Missouri State Life Ins. Co. v. Case, — Ark. —, 71 S. W. (2d) 199; Minnesota Mut. Life Ins. Co. v. Marshall, 29 F. (2d) (C. C. A.) 977.

In the Felton case, where the policy is identical in terms, so far as is pertinent here, with the policy before us, it was held that recovery could be had by the insured’s administratrix from the date of the insured’s permanent disability, because he was mentally incapacitated from making proof of his disability from the date he was disabled. After thus deciding the case the court based its decision also on another ground holding, in effect, that recovery could be had from the date of the disability, not from the date when the proof of such disability was made.

Whatever may be said of the holding in the Felton case, and other authorities, we are clear that there is no ambiguity in the policy before us, and the judgment of the municipal court of Chicago is affirmed.

Judgment affirmed.

McSurely and Hatchett, JJ., concur.


author: Mr. Justice McSurely

text:
    J. R. Fetherston et al., Appellants, v. National Republic Bancorporation et al., Appellees.
    Gen. No. 37,951.

      Heard in the first division of this court for the first district at the December term, 1934.
    Opinion filed April 15, 1935.
    Shulman, Shulman & Abrams and Leonard F. McG-ee, all of Chicago, for appellants; Meyer Abrams, of counsel.
    Kirkland, Fleming, Green & Martin, Follansbee, Shorey & Sohupp, Rubens, Fischer, Mosser & Bar-hum, Arthur J. Hughes and Frahk Michels, all of Chicago, for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiffs appeal from an order sustaining demurrers to their amended bill of complaint and sustaining defendants’ motion to dismiss the amended complaint.

The amended complaint sought, among other things, to have impressed with a trust certain collateral held by the Central Republic Trust Company. Plaintiffs obtained an order enjoining the Central Republic Trust Company from selling the collateral, but on appeal from this order we reversed it. In our opinion (Fetherston v. National Republic Bancorporation, 272 Ill. App. 500) we considered plaintiffs’ claims to the collateral. We recited the allegations of the amended bill to the effect that the defendant Central Republic Trust Company notified the Madison Square State Bank and H. R. Dow, its receiver, that it held two promissory notes, — one for $150,000 and one for $50,000, of which there was a balance due of more than $146,000, and that the Central Republic Trust Company would offer at public sale the collateral held by it as security for the payment of the notes; and that the Central Republic Trust Company was not an innocent purchaser for value of the notes but had received them through its merger with the National Bank of the Republic. The prayer of the bill was that plaintiffs be decreed to have a lien on this collateral.

In that opinion we sustained the contention of the Central Republic Trust Company that it held this collateral as security for the payment of the two notes above described, and that no facts were alleged by plaintiffs tending to show that the Madison Square State Bank did not owe the claimed balance due on the two notes. We held that the Central Republic Trust Company ought not to be enjoined from selling the collateral to pay the balance due it and we reversed the injunctional order.

The present amended complaint presents no additional facts to substantiate any claim against these securities. Our former holding settled the law with respect to the attempt of plaintiffs to have the collateral impressed with a trust in favor of the depositors, and we reaffirm our previous holding in this respect. Stevenson v. Stevenson, 297 Ill. 338.

The amended complaint also seeks to have the defendants and certain officers and directors held jointly and severally liable for alleged fraudulent acts which it is asserted induced depositors to continue making deposits in the Madison Square State Bank, and it is asked that such defendants be decreed to pay such amount as may be found due plaintiffs, including plaintiffs’ costs and expenses and reasonable fees of their attorneys.

The amended complaint alleges that the National Bank of the Republic was a banking institution located in downtown Chicago, which desired to dominate and control certain banks in outlying districts of Chicago, and with that end in view organized a syndicate known as National Republic Investment Trust, and a corporation known as the National Republic Bancorporation which obtained control of a number of outlying banks, including the Madison Square State Bank; that in order to induce the depositors to leave their money in the Madison Square State Bank and others to make new deposits in the bank, the National Bank of the Republic and the National Republic Bancorporation caused to be advertised that the outlying banks were a part of a system supported by them with combined resources of more than $250,000,000, and that certain officers of the Bancorporation and officers of the “Republic Bank” advertised that the outlying banks were in a strong financial condition, backed by the downtown banks mentioned; that a statement of the financial condition of the Madison Square State Bank was issued with the knowledge and approval of the National Bank of the Republic and the Bancorporation, showing that the Madison Square State Bank had resources of more than two and one-half million dollars, cash on hand, and due from banks of more than $726,000; that these statements were untrue and were known by the parties who made them to be untrue, and were made to induce the general public to deposit their money with the banks controlled by the National Republic Bancorporation, of which the Madison Square State Bank was one; that large display cards containing such advertisements were posted in each of the outlying banks so that the depositors were led to believe that these outlying banks were affiliated with and supported by the downtown banks.

That on or about June, 1931, many of the outlying banks in Chicago were in financial difficulty and closed by the auditor of public accounts, and in order to induce plaintiff J. R. Fetherston, and other depositors, to keep their deposits in the chain of banks owned and controlled by “Republic Bank” and National Republic Bancorporation and to continue to make deposits therein, the “Republic Bank” through its president, John W. O’Leary, caused a letter to be written to the presidents of the several outlying banks wherein statements were made which misled depositors as to the condition of the Madison Square State Bank. It was also alleged that the plaintiffs were misled by false statements issued by the Madison Square State Bank with the knowledge, approval and participation of the “Republic Bank” and National Republic Bancorporation, upon which depositors relied, and continued to keep their accounts in the Madison Square State Bank,

Plaintiffs allege that the representations contained in the 0 ’Leary letter and the printed statements were untrue and known to defendants to be untrue when made; that on June 14, 1932, the Madison Square State Bank was closed by the auditor of public accounts and that in order to escape the consequences of its acts in holding out to the public that the “Republic Bank” supported the Madison Square State Bank, the “Republic Bank” merged with the Central Republic Trust Company of Illinois and changed its name to Central Republic Trust Company, and permitted the outlying banks to be closed.

Plaintiffs charg-e that it was fraud upon them and the other depositors to advertise to them that the outlying-banks were affiliated with an institution whose combined resources were in excess of $250,000,000; that such false advertisements and publications were the result of a conspiracy of the officers and directors — all controlled by the Bancorporation; that by such fraudulent conspiracy the public was induced to deposit their money in the outlying- chain of banks whereby millions of dollars were lost to depositors, and that the corporations, officers and directors participating in the conspiracy should be held accountable for their fraudulent acts and made to respond in damages for the loss occasioned to the depositors.

The amended complaint also alleges that on June 30, 1931, the Madison Square State Bank, with knowledge, approval and participation of the “Republic Bank” and the Republic Bancorporation, published a false statement of its condition in that the statement showed that bills payable of the Madison Square State Bank, aggregating more than $348,000, were paid, when as a matter of fact they were not paid, because a few days after the publication of the statement the records of the Madison Square State Bank showed the $348,000 due and owing by that bank; that the statement showed cash on hand and due from the other banks, amounting to $726,450.08, when the fact was that this included an item of $650,000 which was fictitious, and in fact the bank had only cash to the amount of $76,450.08. It was alleged that complainants, relying upon these statements, continued to make deposits in the Madison Square State Bank.

We have only outlined the amended complaint. To note in detail the multitude of matters which are set forth would greatly extend this opinion.

Exhibits were attached to the complaint which showed the advertising and literature and the O ’Leary letter, referred to in the complaint. Examination of these exhibits fails to support the allegations of fraud, misrepresentation, deceit and conspiracy. Where there is a discrepancy or contradiction between the allegations in a bill and the facts as shown in an exhibit attached to and made a part of the bill the exhibit will control, and a demurrer to the bill does not admit such allegations as are in conflict with facts disclosed by the exhibits. Lyons v. 333 North Michigan Ave. Bldg. Corp., 277 Ill. App. 93, and cases there cited.

The allegation that the “Republic Bank” and the National Republic Bancorporation advertised that each of the outlying banks “were part of the system supported and operated by them” is contradicted by the exhibit. The exhibit shows no such statement or suggestion. The exhibit also contains no statement to support the allegation that it was advertised that “the outlying banks . . . had the backing of an institution having combined resources of over $250,000,000.” The advertisement stated that the banks “affiliated with National Republic Bancorporation have combined resources in excess of $250,000,000.” The advertisement gave a statement of the resources and liabilities of all the affiliated banks, showing that their combined resources exceeded $250,000,000. There is no allegation of the untruth of the statement made in September, 1930, that these banks were strong and liquid.

Plaintiffs vigorously attack the letter of Mr. John W. O’Leary, president of the National Bank of the Republic, written to the presidents of the outlying banks, including the president of the Madison Square State Bank. The letter was written on June 11, 1931, when, as is generally known, many outlying banks in Chicago were in financial difficulties. The letter is dated more than a year before the closing of the Madison Square State Bank. He said the condition of the outlying banks has undergone very great improvement ; that “The loop banks are sending millions of dollars to these banks, and are prepared to lend them further support consistent with sound banking practice.” The complaint does not allege that this was untrue. The letter proceeds: “Fortunately, the public seems to realize that many of these banks are able to take care of their own needs, and are in sound condition. Naturally we are supporting such strong banks as . . . the Madison Square State Bank.

“Many of the outlying banks have been keeping themselves in extremely liquid condition, and the very fact that these banks have already met the severe tests brought about by present conditions should indicate their soundness.”

We find nothing in this letter to support the allegations of fraud and deceit. It is merely a letter of encouragement and did not purport to forecast what might happen when the financial storm reached its climax.

In general, the allegations with reference to advertisements relate to a period too remote to June 14, 1932, the date of the closing of the bank. The advertisements seem to have been put out in September, 1930, about a year and nine months before the closing of the Madison Square State Bank,

As to the allegations that the bank statement of June 30, 1931, was false in showing that there were no bills payable, and that the item of cash on hand and due from other banks was false by reason that it included two fictitious items aggregating $650,000, the facts alleged d.o not contradict the items appearing in the bank statement. The fact that the bank had bills payable both before and after the date of its published statement would not negative the statement that it had no bills payable on the date of the statement. Also, the facts pleaded show that the deposits in the “Republic Bank” aggregating $650,000, which was credited to the account of the Madison Square State Bank, were in fact real deposits. But whatever may have been the facts concerning these items (and the charges are so indefinitely made that it is almost impossible to arrive at any concrete facts charged) the bank statement was published approximately a year before the bank was closed and was therefore too remote. Moreover, considering the changing conditions at this time it is apparent that no depositor was justified in continuing as a depositor with the bank until June 14, 1932, in reliance on a statement made a year before. It is worthy of note that the record shows that the Madison Square State Bank, between the date of the statement of which complaint is made and its closing in June, 1932, had met deposit withdrawals to the amount of $1,440,000, or nearly 60 per cent of its deposit liabilities on June 30, 1931.

The court will take judicial notice of the economic depression. Straus v. Chicago Title & Trust Co., 273 Ill. App. 63; People ex rel. Krajci v. Kelly, 279 Ill. App. 22. The bankers themselves were the victims of circumstances as well as the depositors, and what was done was evidently with the hope that if the bank credit could be maintained by continuing its ordinary business, affairs might take a favorable turn. McDonald v. Chemical Nat. Bank, 174 U. S. 610. There are no facts alleged in the complaint which show that anything was done except for the best interests of the depositors. There are no allegations of facts showing any fraudulent intent.

Plaintiffs say that this is a class suit, brought by Fetherston and all other depositors similarly situated, and say that this court in our former opinion held that such a suit may be brought. We there said that 3,000 depositors ought not to be required to bring the same number of suits when equity, in one suit, would afford complete relief. Manifestly we were referring to the question there presented, namely, the propriety of the injunction restraining the National Bank of the Republic from selling the collateral. If plaintiff Fetherston were successful in his claim that the collateral should be impressed with a trust for the benefit of the depositors, all the depositors would profit. There would be no need to try this issue more than once.

However, the complaint also seeks to hold the defendants liable in damages on the ground that plaintiff Fetherston and other depositors were deceived into making and continuing deposits. It is in the nature of an action for deceit. The rule in equity pleading allowing representative suits where the parties are numerous has no application to this part of the complaint. Representative, or class suits, are allowed only where the question is of a common or general interest, where one sues for the benefit of the whole. In all such cases the parties stand in the same situation, having one common right or one common interest. Story’s Equity Pleadings (9th ed.), secs. 94, 97, 120, 126. We find no cases deciding that mere numerousness of parties alone will confer jurisdiction upon a court of equity in a case that is properly cognizable at law.

In Michelsen v. Penney, 10 Fed. Supp. 537, plaintiff filed a bill in Ms own behalf and in behalf of other depositors, alleging losses through misrepresentations of the defendant, a director of the City National Bank; the court dismissed the bill, saying: “The cause of action in such a situation is personal and individual to every depositor who has been misled by the defendant’s statements, and the remedy is an action at law. ...” And to the argument that the depositors were numerous and that there were common questions of fact and of law involved, said: “But these considerations do not justify the casting of many actions at law for deceit into one suit in equity, nor do they permit some of the allegedly defrauded depositors to bring* a class or representative suit in behalf of all. The authorities leave no room for doubt on this point.” (Citing cases.) To the same effect is Bickford’s, Inc. v. Federal Reserve Bank of New York, 5 Fed. Supp. 875, where the court said: “A fair test of the right to maintain a class suit is whether a decree would be binding on absent persons said to be members of the class. In a true class suit the decree is binding on such persons.” Among other cases so holding are Hale v. Hale, 146 Ill. 227, at page 257; Supreme Tribe of Ben-Hur v. Cauble, 255 U. S. 356; Hale v. Allinson, 188 U. S. 56; Spear v. H. V. Greene Co., 246 Mass. 259; Chester v. Halliard, 36 N. J. Eq. 313.

It is obvious that if plaintiff Fetherston should fail in his claim for damages for deceit this result could not be res adjudícala in an action at law by other depositors of the Madison Square State Bank. Assuming the alleged misrepresentations, Fetherston might fail in his proof as to when he become a depositor, whether he saw the bank statements and advertisements or the O’Leary letter described in the complaint, or that he relied on them. Certainly his failure could not bind another depositor who could establish all the elements necessary to maintain successfully an action of deceit.

Cases cited by plaintiffs which support a class suit are not applicable to an action claiming damages through reliance on deceit and false representations. A typical case is Wilkinson v. Heberling, 231 Ill. App. 516, which was a bill by certain stockholders seeking to rescind and have canceled stock purchases made by them and to recover from the defendant corporation and its officers the amount paid by the complainants for such stock. It was held that the hill was entertain-able in equity as a common point of litigation was presented involving the whole subject matter, the decision of which would settle the rights of all parties to the suit. Another case not in point is Chicago Telephone Co. v. Illinois Mfrs Ass’n, 106 Ill. App. 54, where the right of the coplaintiffs was based on an ordinance whose construction would affect all the parties.

Moreover, plaintiff Fetherston has not joined other depositors of the Madison Square State Bank as co-plaintiffs. The only place where other depositors purport to be named is in an exhibit “A” attached to the amended complaint. This exhibit is entitled, “List of Depositors, Members of Committee Who Are Joined as Plaintiffs to the Cause.

“Depositors of the Madison Square State Bank Who Are Members of the Depositors’ Protective Organization and Have Authorized the Officers of Said Organization to Act for Them in Legal Proceedings Affecting Their Interest.” Then follows a list of names of alleged depositors. Many of the names are indefinite and uncertain. The so-called “Depositors’ Protective Organization” was not in existence at the time of the alleged injuries to the individual depositors. It could not he a coplaintiff in this action to recover damages for deceit. Neither can the persons whose names appear on the list in the exhibit be properly called coplaintiffs with Fetherston. Persons are not made parties to a suit by having their names appear only in an exhibit attached to the bill.

We hold that plaintiff Fetherston cannot file his complaint in equity in a representative capacity to recover damages alleged to have been incurred through false representations made severally to individual depositors.

Other points are made, which we have considered but do not think of sufficient importance to require comment. To discuss them adequately would make this opinion far too long.

We hold that the chancellor properly sustained the demurrers to the amended bill of complaint and properly ordered the suit dismissed, which order is affirmed.

Order affirmed.

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