text:
    Lu Green, Jr., Appellee, v. William Ryan, Jr., Appellant.
    Gen. No. 7,985.
    1. Customs and usages — presumption of dealing with reference to custom as authority for proof thereof. Evidence of general custom in a particular market may be introduced on the presumption that he who deals in that market knows the customs thereof.
    2. Sales — implied warranty of animal purchased for breeding purposes. Implied warranty that a cow is fit for breeding arises from her purchase at a sale of breeding cattle.
    3. Appeal and ebbob — presumption as to verdict where weight of evidence depends upon credibility of witnesses. If the weight of evidence depends on the relative credibility of witnesses and the jury found for appellee, the Appellate Court cannot say that the verdict was against the weight of the evidence.
    4. Sales — demand as prerequisite to recovery of purchase price on failure of warranty. Without prior demand for repayment vendee may recover for the purchase price of a cow failing to fulfil the warranty to breed, upon her return to the vendor.
    5. Sales — when contract rescinded by retention of subject after return by vendee. Contract of sale of a cow was shown to be rescinded by both parties when vendor kept her after her return to him by the vendee for failure to breed as warranted.
    Appeal by defendant from the Circuit Court of Vermilion county; the Hon. John H. Mabshall, Judge, presiding. Heard in this court at the April term, 1926.
    Affirmed.
    Opinion filed November 6, 1926.
    Acton, Acton & Snyder, for appellant.
    Gunn, Penwell & Lindley, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

In this case an appeal is prosecuted by the appellant, William Ryan, Jr., from a judgment in assumpsit, for $770, which was rendered against him in the circuit court of Vermilion county at the suit of the appellee, Lu Green, Jr. The appellee sues to recover for the purchase price of a cow (less the amount of a credit of $230, to which it is conceded the appellant is entitled), on account of an alleged breach of a warranty of the cow, which the appellant sold him. It appears from the evidence that the cow in question was purchased from the appellant at a public sale of registered breeding cattle at Danville, Illinois. The appellee testified that at this sale he purchased five head of cattle, including the cow mentioned, known as “Missie 176”; that Missie at the time of the sale had a calf at her side about 8 or 9 months old, and was represented to be with calf; that he went to the appellant before the sale and told him that he would like to bid on Missie but did not have any use for the calf at her side. And thereupon the appellant had the cow put up for sale without the calf, and he bought her. He also testified that before the purchase he inquired of the appellant, whether she was “due to calve” and that the appellant told him she was due to calve in the following fall, and that afterwards the auctioneer, who conducted the public sale, made the same representation with reference to the breeding condition of the cow when he put her up for sale, and before he bought her. The purchase price of the cow was $1,000, and the appellee gave his note therefor, and afterwards paid the same. The appellee also testified that in making his bid he relied on the statements of the appellant and the auctioneer, concerning the breeding qualities of the cow. He also testified that after he bought the cow she was shipped to hfm; and that he received the cow at his farm at Indianola in a very nice condition; that on the sixth day of July the cow came in heat, and that she was then bred to one of Bis registered short horn bulls, called Master of Arts, but that she didn’t get with calf; that thereafter she was again bred to the same bull, also regularly bred during that fall to several other bulls without success, and that thereupon he notified the appellant that the cow had not been with calf, and that thereupon the appellant told him that he could return her to him; and that he would breed her; and that the cow was then returned to the appellant early in the following Spring of 1921. Appellee also testified that after that he never received any notice from the appellant that the cow had been bred, or was ready to be returned to him; that he had but one conversation with the appellant about the cow after she was returned, namely, in the latter part of .the season of 1921; that at that time the appellant informed him that he had a veterinary to treat the cow, “to- see if she could not get with calf.” The appellee also testified to a general custom prevailing among traders of registered breeding cattle, with reference to this kind of cattle and cows sold at a public sale, and that, according to this custom, if a cow doesn’t get with calf, she is returned to the seller, and bred to the. seller’s bulls; that if she doesn’t come with calf then, he either returns the money to the purchaser, or he makes him a different buy, or gives him another animal of like value which is satisfactory. A number of witnesses testified to the general custom prevailing in relation to sales of breeding cattle. The evidence also shows that after the cow in question had been returned, appellant continued to hold her, and has retained possession of her ever since that time; and the cow was in his possession at the time of the trial, which was more than four years after the cow had been returned to him by the appellee. One of the grounds urged for reversal of the judgment is that the evidence admitted by the court concerning the general custom referred to was erroneous. We are of opinion, however, that the evidence was competent. It was- proper for the jury to consider this custom in connection with the contract of sale, and the conduct of the parties with reference to the cow, after the sale, and after her return to the appellant. Where there is a general custom or usage of trade prevailing, the parties concerned are presumed to act and contract with reference to such custom and usage. Doane v. Dunham, 79 Ill. 131; J. B. Lyon & Co. v. Culbertson, Blair & Co., 83 Ill. 33. A party dealing in a particular market is presumed to know all customs of that market bearing upon the transactions carried on, and to act in accordance therewith. Bailey v. Bensley, 87 Ill. 556; Cothran v. Ellis, 107 Ill. 413. And it is well settled that where a sale is made of breeding cattle, an implied warranty arises that the animals sold are fit for breeding purposes. 2 Mechem on Sales 1173, § 1354; Edwards v. Dillon, 147 Ill. 14. It was a controverted question in the case whether or not the appellee made his purchase based upon the representations and statements of the appellant and his auctioneer, as testified to by him, or made the purchase in accordance with the terms and conditions of the warranty set forth in the catalogue, which appellant had printed and circulated among prospective purchasers at his sale. Claude P. Madden, one of the auctioneers at the sale, testified that he “called the audience together and asked them to get on the seats, and I introduced Mr. Millne as the auctioneer; and Mr. Millne called their attention to the terms and conditions of the sale, on page 4 of the catalogue. ’ ’ But he also testified that all the cattle at the sale were sold as registered breeding cattle. And the testimony of Madden referred to does not appear to be contradictory of the testimony of the appellee concerning his conversation with the appellant before the sale, nor about the special announcements made by the auctioneer Millne in reference to the cow in question. There is also a sharp conflict in the evidence about the purpose for which the appellee returned the cow to the appellant. The appellee testified that appellant told him he could return her, and he would breed her to his bull, while the appellant’s version of the same conversation is that the appellee said to him, “Bill I have had bad luck with Missie cow. She lost her calf. ” Whereupon, appellant replied, “That’s too bad. If you want to, you can send her back over and I will breed her to the old bull and won’t charge anything for it.” Appellee denied that he ever told the appellant or anyone that the cow Missie had lost her calf, and testified that Missie was not with calf at the time of the sale, and that she never had a calf after he purchased her. Whether the cow in question was with calf at the time appellee purchased her or not, and whether she was barren at the time of the sale to the appellee, were controverted matters in the case. It is contended by the appellant that the verdict of the jury is manifestly against the weight of the evidence on the questions of fact in issue. The determination of the weight of the evidence depended in this case upon the credibility of the witnesses who testified, and especially the respective credibility of the appellee and the appellant. It is evident from the verdict that the jury reached the conclusion that the appellee’s version of the transactions and conversations between the parties was the most worthy of credence, and we would not be justified in saying, in considering the whole of the evidence, that they were not warranted in reaching that conclusion. We cannot say, therefore, that the verdict is against the weight of the evidence, and under the circumstances here presented a court of review would not be warranted in reversing the judgment on that ground. Wentworth v. Chicago City Ry. Co., 210 Ill. App. 116; Alton Railway, Gas & Electric Co. v. Seiferth, 95 Ill. App. 134; Rackley v. Rackley, 151 Ill. 332; Illinois Life Ins. Co. v. Lindley, 110 Ill. App. 161; Springfield Consol. Ry. Co. v. Keiser, 130 Ill. App. 56; Kirlin v. Chittenden, 176 Ill. App. 550; Morgan v. Ryerson, 20 Ill. 343. It is also contended that it was incumbent on the appellee, before his right of recovery was established, to make a demand on the appellant for a return of the purchase money. It may be said in reference to this contention that where an animal is warranted and fails to fulfil the warranty, it may be returned to the vendor by the vendee, and when returned the vendee thereupon becomes entitled to recover the purchase price paid, without any previous demand for repayment. Morgan v. Ryerson, supra; Caswell v. Coare, 1 Taunt. 566; Kugel v. McEnroe, 115 Ill. App. 419; Woodford Distilling Co. v. Remington Typewriter Co., 174 Ill. App. 244; Kennedy v. North Avenue Motor Sales Co., 211 Ill. 510. The inference is clear from the evidence that the contract of sale involved, after the return of the cow- to the appellant, was treated by both parties as rescinded, and the permanent retention of the cow by the appellant without any explanation to the appellee, after the unsuccessful attempts which he made to get her with calf, justifies the conclusion that the appellant regarded the sale as rescinded in accordance with the custom referred to, and that the cow had again become his property. Both the appellant and appellee treated the cow as having been permanently returned to the appellant.

We find no substantial error in the instructions given for the appellee, nor in the refusal of instructions requested by the appellant. For the reasons stated, the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Niehaus

license: Public Domain

text:
    The People of the State of Illinois ex rel. H. M. Davidson, Appellee, v. The City of Danville, Illinois, et al., Appellants.
    Gen. No. 8,004.
    1. Highways — permanent roofs over public sidewalks illegal encroachments. Permanent roofs over public sidewalks are illegal encroachments and in their nature purprestures.
    2. Highways — want of authority to permit erection of sidewalk roof outside fire limits of city of Danville. Section 971 of the Revised Ordinances of the city of Danville conferring authority on superintendent of buildings to issue permits for awnings in the fire limits confers no authority to permit erection of coverings of any character over public sidewalks outside the fire limits.
    3. Mandamus — propriety of issuance to' compel removal of roof over sidewalk. Mandamus was properly issued to compel officers of the city of Danville to remove a roof over a public sidewalk, not authorized under its ordinances or by statute.
    Appeal by defendants from the Circuit Court of Vermilion county; the Hon. Walter Brewer, Judge, presiding. Heard in this court at the April term, 1926.
    Affirmed.
    Opinion filed November 6, 1926.
    James A. Meeks, Corporation Counsel, Owen M. Burns, City Attorney, and Acton, Acton & Snyder, for appellants.
    Jinkins & Jinkins and Gunn, Penwell & Bindley, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

In this case a petition for mandamus was filed in the circuit court of Vermilion county by the People ex rel. H. M. Davidson, a property owner and taxpayer in the city of Danville, against the mayor, the aldermen and other officials of the city, as well as the owner of the premises, C. A. Madden. The building situated on the premises is used by the owner as a residence; also as a confectionery store and lunch room. It is situated on the line of East Fairchild Street, a public street in the city of Danville. The petition avers that the owner of the premises constructed and maintains a roof extension, which is designated as an awning' from the building over a part of the street, and across the sidewalk; and that the structure mentioned is permanent in its character, and is an encroachment upon the street, and an obstruction thereof, and amounts in law to a purpresture. The petition prays for a writ of mandamus against the parties mentioned, who are appellants herein, requiring them to remove the structure, and thereby abate the alleged nuisance. The appellants filed an answer to the petition, alleging in defense that the structure was an awning and was constructed by virtue of a permit issued by the superintendent of buildings in the city of Danville; that the superintendent of buildings was authorized by the statute, and by the ordinances of the city of Danville to issue permits to build structures of the character in question, and that the structure in question was authorized by and built in accordance with an ordinance known as general section 971, and section 13 of chapter 32 of the Revised Ordinances of the city of Danville. The ordinance specified provides: “All awnings, except canvas awnings, are prohibited within the fire limits and in no case shall any awning be less than 8 feet above the sidewalk, in the clear, including all curtains, or drops, nor shall the same be supported by posts, under a penalty of not less than $5.00, nor more than $100.” It is also argued that the structure in question is used by a large number of high school students, who attend the high school across the way, and thereby protect themselves from rain, snow and inclement weather, in waiting for street cars to take them to their homes. The case was submitted to the trial court upon an agreed state of facts, which is embodied in the following stipulation:

“It is hereby stipulated and agreed between the plaintiff and the defendant in the above entitled cause that matters in issue under the pleadings in said cause are submitted to the Court for hearing upon the petition and the admissions contained in the answer and the replications thereto, each party saving and reserving all right of objection as to the competency, relevancy and materiality of the' facts hereinafter admitted, do stipulate and agree that the following are the facts:
“1. That H. M. Davidson, the relator, is a resident of the City of Danville, Illinois, and the owner of a large amount of personal property and real estate in the City of Danville, Illinois, on which he pays a large amount of taxes annually.
‘ ‘ 2. That the City of Danville, Illinois, is a municipal corporation and that the officers named in the title above are its duly elected, appointed and qualified officers thereof.
‘ ‘ 3. That the relator, H. M. Davidson, is the owner of a certain lot known as 207 East Fairchild Street, within the city limits of the City of Danville, Illinois, on which there is a newly constructed dwelling house, costing $12,000, used by himself and family, as shown in relator’s Exhibit 5, which, by reference, is made a part of this stipulation; that the said lot joins and abuts upon the north side of East Fairchild Street in said city, in front of which there is a sidewalk five feet in width; that the said C. A. Madden owns and occupies a certain lot adjoining the lot of the relator on the east, as shown in the photograph marked relator’s Exhibit 5, as aforesaid, said lots being separated only by a nine foot alley on the east side of relator’s lot; that the said C. A. Madden occupies a building thereon used by himself and wife as a residence and confectionery store and lunch room, known as 209 East Fairchild street, Danville, Illinois; that said store room, as originally built, was constructed to within five feet of the south property line thereof in August, 1924; that since and in August, 1925, said O. A. Madden built an addition to said store to the south property line of said lot and placed thereon sixteen 2 by 4 rafters of the length of 18 feet, 13 feet of which rafters extended' southward past the new five foot addition over the sidewalk the entire width of the building — said width of the building is 30 feet — to a point 4 inches south of the north curb line of East Fairchild Street, upon and over the public property of the City of Danville, Illinois. The said rafters are covered with seven-eighths inch pine sheeting from the place where built into the structure that was built in August, 1924, to the south end of said rafters aforesaid ; that said sheeting is covered with a composition, rolled roofing and supported by the frame work of the five foot addition and four iron cables over the high banister of the original store building constructed in 1924 and fastened in the' back to part of C. A. Madden’s residence, 36 feet north from the south property line; that said structure is permanently erected over the sidewalk to 4 inches past the north line of the curb aforesaid; that relator’s exhibit 1 is a photograph with the view looking east on north side of East Fairchild St. aforesaid; that relator’s exhibit 2 is a photograph with view looking west on the north side of East Fairchild St. aforesaid; that relator’s exhibit 3 is a photograph with view looking north from a point directly south in front of said structure across said East Fairchild St.; that relator’s exhibit 4 is a photograph with a view taken from relator’s porch looking southeasterly toward the new million dollar high school; that relator’s exhibit 5 is a photograph showing the residence of relator and confectionery store of the defendant, C. A. Madden, with the camera point of exposure being near sewer opening by brick store building shown in relator’s exhibit 2 aforesaid;
“It is further admitted and agreed that defendants and each of them received the notice set out in the petition, to remove, tear down, eliminate and abate the structure complained of in the petition and that they refused to do so.
“It is admitted that the above structure was built under a permit issued by the superintendent of buildings of the City of Danville, Illinois, and that the city ordinances of the City of Danville, Illinois, then in force created the office of superintendent of buildings and made it the duty of such officer to have the management and control of all matters pertaining to buildings and to issuing permits for that purpose.
“It is also, admitted that across the street from the building of C. A. Madden is the public high school of the City of Danville, Illinois, at which there is in attendance more than fourteen hundred students and that on Fairchild Street a street car line is operated and that many of the students attending the public high school" used said street cars- iii going from said high school building to their respective homes; and that, during stormy weather before the aforesaid structure was erected, said high school students used the store room of said Madden as a place to wait for the street car and that, since said structure has been erected, said high school students in numbers ranging from 25 to 100, or more, gather under said structure and protect themselves from rain and storm while waiting for the street car in leaving said high school for their respective homes.
“That, at the time of the erection of said structure and ever since, the City of Danville, Illinois, had in full force and effect an ordinance in reference to awnings, known as General Section 971 of the Revised Ordinances of said City, which reads as follows, to-wit: ‘All awnings, except canvas awnings, are prohibited within the fire limits- and in no. case shall any awning be less than 8 feet above the sidewalk, in the clear, including all curtains, or drops, nor shall the same be supported by posts, under a penalty of not less than $5.00, nor more than $100. ’
“That the above mentioned structure is not within the fire limits and that said structure is not supported by posts and is more than 8 feet above the sidewalk in the clear, including all curtains and drops; that the City of Danville for more than 20 years has generally permitted permanent awnings of iron, or wood, to be constructed and maintained over sidewalks in different parts of the City.
“It is stipulated that said C. A. Madden sells, during the noon hour to high school students, or others of the public, sandwiches, or other goods, from his confectionery store, through the front window, or opening, in the south end of his store, as well as inside his store, at the option of the purchasers; and that persons when purchasing in this way from the outside, stand upon the city property under said structure complained of.”

The court upon the facts embodied in the stipulation held as a matter of law that the prayer of the petition should be granted, and ordered the writ of mandamus to issue, and the court held the following propositions of law:

“The court holds as a proposition of law that the plaintiff is entitled to a writ of mandamus, as prayed for in the petition.
“The court holds as a proposition of law that the structure built, kept and maintained by the defendant, C. A. Madden, mentioned in the stipulation and pleadings, is maintained in violation of the rights of the public.
“The court holds as a proposition of law that the plaintiff is entitled to a writ requiring the respondents to abate and remove the structure described in and complained of in the pleadings.”

This appeal is prosecuted from the judgment of the court ordering the issuance of the writ.

Concerning the character and extent of the structure complained of, the stipulation sets forth that in August, 1924, C. A. Madden built an addition to his confectionery store and lunch room; that as a part of such addition placed sixteen 2 by 4 rafters of the length of 18 feet, 13 feet of which extended past the new five-foot addition over the sidewalk, and the entire width of the building, namely 30 feet, to a point 4 inches over the north curb of the street; that these rafters are covered with seven-eighths inch pine sheeting from the point where they are built into the structure to the end of the rafters; that the sheeting is covered with a composite rolled roofing, and by a frame work of a five-foot addition, and four iron cables over the high banister of the original store building, which is fastened in the back to a part of the Madden residence; and that this structure is permanently erected. It is contended that the structure in question is an awning, which the owner of the premises had a legal right to construct and maintain in the street referred to under the permit of the superintendent of buildings, and the provisions of the general section 971 of the Revised Ordinances of the city of Danville, also because of the use of the structure by a large number of high school students in times of. inclement weather as a protection from rain or snow, while the students were waiting for street cars. From the facts embodied in the stipulation, it is apparent that the structure in question was not erected for any public purpose, nor to benefit the public, and that it must be regarded as a private and not a public enterprise, and it clearly appears that it is maintained in connection with the confectionery and lunch business of, the appellant Madden. We cannot agree with the contention of the appellants that general section 971 of the Revised Ordinances of the city of Danville confers authority upon the superintendent of buildings in the city of Danville to issue permits to property owners for the construction of permanent structures like the one in question, into or across a part of the public streets or highways of the city of Danville, nor is there any statutory authority for the issuance of such a permit. Such structures have been repeatedly held to be illegal encroachments and obstructions, and in their nature purprestures. People v. Corn Products Refining Co., 286 Ill. 226; Healy v. Deering, 231 Ill. 423; People v. Atchison, T. & S. F. R. Co., 217 Ill. 594; People v. Harris, 203 Ill. 272; Pennsylvania Co. v. City of Chicago, 181 Ill. 289; Hibbard, Spencer, Bartlett & Co. v. City of Chicago, 173 Ill. 91; Field v. Barling, 149 Ill. 556. It is evident that the purpose and scope of the ordinance referred to was to prohibit the construction and maintenance of all awnings within the fire limits of the city of Dan-ville except canvas awnings which were to be at least eight feet above the sidewalk, including curtains or drops. No authority is given by the ordinance for the construction of awnings of the kind and character referred to in the city outside of the fire limits, nor does it designate the kind or character of awnings which would be permissible outside of these limits. Neither the purpose nor scope of the ordinance, nor the language used, justify the inference that it was intended to give authority to the superintendent of buildings to issue permits for the construction of such awnings as the one in question, which had the effect of roofing over permanently a part of East Fairchild Street in the city of Danville.

We are of opinion that the trial court did not err in its holding that the structure in question was unlawfully maintained, and was an encroachment upon the public street mentioned. The order directing the issuance of a writ of mandamus was therefore proper, and order and judgment is affirmed.

Affirmed.


author: Mr. Justice Shurtleff

text:
    T. H. Beard, Defendant in Error, v. H. B. Baxter, Plaintiff in Error.
    Gen. No. 7,994.
    1. Negotiable instruments — defective title of payee negotiating note in breach of agreement to use same only to show others as basis for credit. Under Cahill’s St. ch. 98, if 36, providing that delivery of negotiable instrument may be shown to be for a special purpose and paragraph 75, thereof, providing that title of negotiator of such instrument is defective for fraud in obtaining or negotiating it, a payee getting the note on agreement to keep it to show others in order to build up his credit, and negotiating same in breach of such agreement, had at all times a defective title.
    2. Negotiable instruments — when burden upon holder to show himself holder in due course. Under Cahill’s St. ch. 98, If 79, providing in case title of a negotiator is defective burden is on holder of proving he acquired the title in due course, when prima facie it appears that the note was without consideration and was negotiated in violation of agreement, the burden is on holder to show he holds in due course.
    3. Judgments — showing required to secure opening of judgment by confession. To open a judgment by confession on a note, the defendant does not have to show matters as to which the burden of proof is upon the holder of the note.
    4. Judgments — sufficiency of affidavit as basis for reopening judgment by confession. An affidavit to reopen a judgment by confession on a note, which alleges undue influence and fraud in obtaining the note sued on, establishes prima facie a ground for such reopening.
    5. Negotiable instruments — sufficiency of affidavit to show holder's title prima facie defective. Affidavit in support of reopening a judgment by confession on a note, alleging the maker to have been eighty-five years old and to have been brought under complete control of the payee through fraud of the latter, held to show prima facie that holder’s title to note was defective.
    Error by defendant to the Circuit Court of Sangamon county; the Hon. Frank W. Burton and Hon. E. S. Smith, Judges, presiding. Heard in this court at the April term, 1926.
    Reversed and remanded with directions.
    Opinion filed November 6, 1926.

      Gillespie & Gillespie, for plaintiff in error; Louis F. Gillespie and Hugh J. Dobbs, of counsel.
    Brown, Hay & Stephens, for defendant in error.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This cause involves the sufficiency of plaintiff in error’s affidavit and showing to open a judgment entered in term time in the circuit court of Sangamon county against him in favor of defendant in error, upon a cognovit under a power of attorney contained in judgment notes and for leave to plead.

Plaintiff in error, immediately upon the entry of said judgment, filed his motion with affidavits, including his own, asking that said judgment be opened and that he have leave to plead in said cause. The affidavits are numerous and some of great length, containing various matters stated upon the information and belief of the affiants. We have carefully read plaintiff in error’s affidavit and, eliminating many matters stated only upon information and belief, it is as follows:

“H. B. Baxter, the defendant in this cause, being duly sworn according to law, on oath says that he is eighty-five (85) years of age; that during all of his lifetime he has been a farmer and, incidentally, during the later years of his life he has held a few shares of stock in a small bank at Ashland, Illinois, and has had the nominal position of vice-president of said bank, but has not had any active management or control of said bank, nor any responsibility in relation thereto ; that prior to his purchase of interest in oil leases from E. Bryant Crump he had never engaged in buying any stocks or leases or in speculative investments; that his investments theretofore have all been in real estate and his business has been confined to farming; that E. Bryant Crump, about the year 1922, solicited him to go to Bowling Green, Kentucky, and inspect an oil field, in company with others of his neighbors, with a view to making an investment therein; that he went about that time in company with James Wyatt, Joshua Hubbs, Dr. Lytell, James Thornly and others, all of whom he knew personally, to Bowling Green and was shown the field in which it was desired to sell him an aliquot undivided part and take deeds securing his aliquot parts therefor; that theretofore he had been induced to invest ten thousand ($10,000.00) dollars in what is known as the Bodes lease and had been guaranteed that unless the lease produced sufficient returns to satisfy him within twelve (12) months that the said Crump would pay back to him the said sum; that he was, at that time and subsequently, on the faith of the impression and representations made to him by the said E. Bryant Crump at various times, induced to invest in the aggregate fifty-five thousand ($55,000.00) dollars in said oil leases; that thereafter, in trying to induce affiant to invest in what was known as the Kissler lease he promised affiant that if he would invest in the Kissler lease the sum of ten thousand ($10,000.00) dollars that he would pay him, Baxter, the sum of ten thousand ($10,000.00) dollars on the Bodes lease if he was not satisfied with his investment therein within four (4) months, and that he would at all events pay back the sum of ten thousand ($10,000.00) dollars on the Bodes lease; that affiant made the purchase of the Kissler lease with that understanding and agreement. * * *
“Affiant further says that he had confidence in the integrity and honesty of E. Bryant Crump; that affiant’s first acquaintance with the said Crump was when he came to his home, near Ashland, one night; that the said Crump represented to affiant that he was a preacher of the gospel, and that he was known as Dr. E. Bryant Crump; that he had formerly engaged in the ministry at Bloomington, Illinois, and gave to affiant as references the names of a large number of persons with whom he, affiant, is acquainted, by reputation, and assured affiant that he was there to enable affiant to make large gains and profits in investments in oil leases, and that he wanted him to go to the field and see it.
“Affiant further says that he inquired of him if he had sold any leases in that neighborhood, and thereupon he showed affiant notes for ten thousand ($10,-000.00) dollars each, given by Mr. Wyatt and Mr. Hubbs, one of whom was cashier and the other a director of the bank in Ashland in which affiant held a small amount of stock; that he informed affiant that they had been down and seen the field and were satisfied with the investment; that affiant is not informed as to whether said notes were bona fide or not, but upon the exhibition of said notes affiant made the first purchase of a ten thousand ($10,000.00) dollar interest in the Bodes lease.
“Affiant further says that * * * the said Crump, from time to time, promised affiant that he would make good to him his investments, and continued „to correspond with affiant occasionally and to go to see him when he was in this State selling other leases and trying to promote the sale of interests in an asphalt deposit in the State of Kentucky; that the said Crump assured affiant that he would finally make good and reimburse him for all of his leases, every dollar; that on one occasion he sent to affiant thre'e (3) notes, respectively, for four thousand ($4,000.00) dollars, five thousand ($5,000.00) dollars and six thousand ($6,000.00) dollars; that said notes were sent to affiant after he had sent to affiant, upon being pressed for the payment of the aforesaid ten thousand ($10,-000.00) dollars on the Bodes lease, a check for fifteen thousand ($15,000.00) dollars which went to protest; that after said notes were given to affiant he had occasion to use some money and discounted the five thousand ($5,000.00) dollar note, and the same was sent to Madison, Indiana, for collection; that said Crump declined payment of said note * * *; that affiant went to Bloomington and met the said Crump and the said Lahy and had a talk with the said Crump concerning the object of his call; that the said Crump told affiant he was hard up and needed help to complete an asphalt investment which would put him on his feet; that if he could complete that investment he would be able to and would pay affiant all he owed him within twelve (12) months; that in order to do that he must have a reserve of credit, and asked affiant to aid him by extending the loan of his credit to him for that purpose; that he induced affiant to sign and deliver to him the said notes sued on in this case in the sum of twenty-five thousand ($25,000.00) dollars, upon the express agreement and condition that said notes would not be assigned or transferred, but would be held by him as a collateral reserve, and the security and proceeds thereof as such used only to obtain control of said asphalt deposits, from which he would pay affiant all that he owed him; that his possession of said notes would enable him to induce other friends of his to join in the asphalt enterprise because of the confidence affiant would be showing in the integrity and ability of the said Crump, inasmuch as the said Crump was known to owe affiant the sum of fifty-five thousand ($55,000.00) dollars, which at present he was unable to pay; that the said notes were delivered to the said Crump without any other consideration whatever and merely upon the representations aforesaid and the positive agreements of the said Crump that the said Crump would not put said notes in circulation, but would hold them and use them merely as collateral security for the purpose of making the purchase aforesaid.
‘1 Affiant further says that he did not, when he signed said notes, know that they contained a power of attorney upon which to confess a judgment; * * * that the question of whether said notes did or did not contain such power of attorney was discussed and affiant was informed by the said Crump that said notes did not contain any power of attorney to confess a judgment; that affiant had confidence in the said Crump and believed his statements and did not read the printed portion of said notes.”

On May 2, 1924, plaintiff in error gave his four notes, similar in tenor, aggregating $25,000, by which he promised to pay to the order of E. Bryant Crump, six months after date, the amounts set out in the respective notes, to each of which was attached a power of attorney to confess judgment. The payee had thereafter, and before the notes became due, indorsed and assigned the same to defendants in error. From the affidavit of plaintiff in error, it appears that the instrument in question was executed and passed into the hands of the payee without any consideration whatever. It further appears that plaintiff in error executed the said notes and delivered them to the payee upon the express agreement and condition that said notes would not be assigned or transferred, but would be held by the payee as a “collateral reserve,” and that the payee’s possession of said notes would enable the payee to induce his other friends to join in the asphalt enterprise on account of plaintiff in error’s apparent confidence in Crump’s integrity and ability, and that said notes should be used for no other purpose.

Section 16 of the Negotiable Instruments Act [Ca-hill’s St. ch. 98, ft36] provides: “Every contract on a negotiable instrument is incomplete and revocable until delivery of the instrument for the purpose of giving effect thereto * * *; and in such case the delivery may be shown to have been conditional or for a special purpose only, and not for the purpose of transferring the property in the instrument.”

Section 55 of the Act [Cahill’s St. ch. 98, 75] provides: “The title of a person who negotiates an instrument is defective within the meaning of this Act when he obtained the instrument, or any signature thereto, by fraud, duress, or force and fear or other unlawful means, or for an illegal consideration or when he negotiates it in breach of faith, or under such circumstances as amount to a fraud.”

From the facts set out in plaintiff in error’s affidavit, it apears prima facie that there was no consideration for the note and that the payee’s title to said note was at all times defective. (Bell v. McDonald, 308 Ill. 329.) Such being" the case, or upon the prima facie proof being presented, the burden is upon the holder to prove that he, or some person under whom he claims, acquired the title as a holder in due course. (Section 59 of Negotiable Instruments Act [Cahill’s St. ch. 98, ft 79] Bell v. McDonald, 227 Ill. App. 120; same case, 308 Ill. 329.)

In the opinion of this court the plaintiff in error, by affidavits and proof, does not have to show matters, the burden of proof of which is upon the holder of the note, defendant in error in this case. Counteraffidavits were filed by defendant in error as to the merits of the case, which were afterwards stricken out, but considerable space was given in the briefs to an argument as to the merits of the ease. Defendant in error contends that the language of the affidavit recited shows that the notes were “to be converted into security and proceeds.” While the terms used were not the most elegant to express the meaning intended, and the affidavits teem with much unnecessary language, the plain import of the charges made was that Crump only desired the notes and agreed to hold them for the purpose of interesting others by showing his possession of the notes and thereby plaintiff in error’s confidence in him. If the notes were not to be transferred or assigned by Crump it follows, of course, that they were of no value in Ms hands as against plaintiff in error, but were only to be used for their moral effect in obtaining notes and funds from others, and nothing averred in the affidavit of A. -C'. Baxter shows to the contrary. That this situation may arise in the use of commercial paper and that a defense is recognized where the purpose of the execution of the notes is to defraud, is owing to the language used by the Legislature and not by the construction of the courts.

The affidavit of the son, A. C. Baxter, sets out charges in plain assertion of fact, stated to be within his knowledge tending to show that plaintiff in error, an old man 85 years of age, by fraudulent representations and devices on the part of Crump, had come wholly within Crump’s control, and that the notes in question were executed by reason of the undue influence and fraudulent representations upon the part of Crump practiced upon and made to plaintiff in error. These statements and proofs corroborate the charges that the notes were given for a special purpose and design and without doubt establish, prima facie, an added ground for Crump’s defective title to the notes.

Plaintiff in error has presented a bill of exceptions to this court based upon an alleged error in the original entry or judgment, inasmuch as the proof presented of the execution of the power of attorney to the lower court consisted only of an affidavit sworn to by a notary in another State. Various authorities are cited tending to show that the affidavit in question constituted no proof that the power of attorney was executed in this State. (Keefer v. Mason, 36 Ill. 406; Smith v. Lyons, 80 Ill. 600; Ferris v. Commercial Nat. Bank, 158 Ill. 237; Trevor v. Colgate, 181 Ill. 129, and other cases.) Inasmuch as plaintiff in error’s first appearance in the court below, in person, was by motion to open the judgment and for leave to plead, and . plaintiff in error obtains that relief by the order of this court, the assignment of error made becomes a moot question.

In the opinion of this court the affidavits presented by plaintiff in error contained matters which would constitute .a prima facie defense to said note, and, if established, would cast the burden of proof upon defendant in error to show that he acquired the title to said notes as a holder in due- course.

The judgment of the circuit court of Sangamon county, for the reasons stated, should be reversed and the cause remanded with directions that the judgment be opened and execution stayed, and that the plaintiff in error be permitted to plead to the declaration, the judgment and execution to stand as security.

Reversed and remanded with directions.


text:
    Board of Education of Paris Union School District No. 95, Edgar County, Illinois, Appellee, v. Board of Education of Non-High School District No. 158, of Edgar County, Illinois, et al., Appellants.
    Gen. No. 8,003.
    1. Schools and education — legislative authority in respect of non-high school districts. The General Assembly has power, under Constitution, Art. VIII, to create non-high school districts and delegate to them the power to levy taxes for the maintenance thereof.
    2. Mandamus — right to writ to compel non-high school district directors to pay tuition for high school pupils taught in another district. Mandamus will issue to compel non-high school district directors to pay for tuition to high school pupils from their district, whether they act, in the discharge of their duties, as a body corporate or as individuals.
    3. Mandamus-rWhat admitted by demurrer to petition. A demurrer to petition for mandamus to compel directors of a non-high school board of education to pay tuition for their high school pupils, admits the existence of all the facts alleged necessitating the performance of that duty.
    4. Mandamus — demurrer to petition as precluding objection duty not definite or certain. Where respondents demur to a petition for mandamus to compel them, as non-high school district directors, to pay for tuition furnished to high school pupils of such district by petitioner, thereby admitting the facts alleged by such petitioner showing the existence of the obligation sought to be enforced, the writ.will not be denied upon the ground that such obligation is not definite or certain.
    5. Mandamus — demurrer to petition asi precluding objection^ duty involves performance of discretionary powers. Where respondents demur to a petition for mandamus to compel them, as non-high school district directors, to pay for tuition furnished to high school pupils of such district by petitioner, they are precluded to contend that the duty which they are asked to perform involves the discretionary power to determine the amount of tuition payable, the amount payable being admitted by the demurrer.
    6. Pleading — propriety of permitting amendment on trial changing form of action from assumpsit to mandamus. In view of Ca-hill’s St. ch. 110, H 98, it was not error to permit plaintiff in an action of assumpsit, upon the sustaining of a demurrer to its declaration, to so amend its pleading as to convert it into a petition for a writ of mandamus.
    Appeal by defendants from the Circuit Court of Edgar county; the Hon. Augustus A. Pabtlow, Judge, presiding. Heard in this court at the April term, 1926.
    Affirmed.
    Opinion filed November 6, 1926.
    Dyas & Redman, S. S. Anderson and Walter Lamon, for appellants.
    Trogdon & Dole and O’Hair, McClain & Bristow, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

The appellee filed its suit in assumpsit in the Edgar county circuit court against appellants to the November term, 1925, to recover the sum of $2,325.20, balance due on tuition on non-high school pupils who had attended the high school of appellee for the preceding school year.

The total amount of tuition due, as certified by appellee to the appellants was $27,963.48. Of this amount appellants paid $25,638.28, leaving the amount for which the action was brought due and unpaid.

Appellants filed a general and special demurrer to the declaration on the ground that the appellants could not be sued in assumpsit; that they were not such a corporate body as could sue or be sued. The declaration was not otherwise questioned.

Arguments were heard by the court at the November term and the court sustained the demurrer on the grounds urged. Appellee then asked and was granted leave to change its form of action to mandamus and, after the motion for such change was granted, filed its petition for mandamus to the said November term. The appellants filed their general and special demurrer to the petition for mandamus and set up as grounds for said demurrer that the appellants were not such a corporate body as could sue or be sued, and that the action would not lie to force the payment of the amount due and to compel the action sought as set forth in the petition. There were other general grounds of demurrer but these are the principal grounds urged'. The court overruled the demurrer and, appellants refusing to plead further, the writ was issued.

It is contended by appellants that inasmuch as the boards of education of non-high school districts, under the statute, are authorized to levy taxes only for the purpose" of paying the tuition of all eighth grade graduates attending recognized high school and to issue orders upon the" county treasurer for the payment of the same, and to pay election expenses and other necessary incidental expenses, that a non-high school district is not a body corporate and does not have capacity to sue or to be sued. It is insisted that there is no language in the statute granting such powers or authority to non-high school districts.

Article 8 of the Constitution of the State of Illinois [Cahill’s St. Art. VIII, p. 21] provides that the General Assembly shall provide a thorough and efficient system of free schools whereby all children of the State may receive a good common school education. It has been held that a common school education includes such an education as may be required by attending a high school with a four-year course. (Board of Education v. Haworth, 274 Ill. 544.)

In People v. Chicago & N. W. Ry. Co., 286 Ill. 391, it was held:

“The non-high school districts created by the act are made to include all the territory in each county not included in a township high-school district, community high-school district or a district maintaining four years of high school. Such a district is therefore a defined territory capable of definite description, and in the determination of the boundaries of such district the application of the act is uniform throughout the State. The legislature having power to form such school districts, it follows that it has power to impose the debt incident to their maintenance and to provide the means of discharging that debt, subject to the requirements of sections 1 and 6 of article 9 of the constitution, regarding uniformity and distribution of taxation.
“Section 93 creates a body styled a board of education in such non-high school districts* and while the principal purpose and function of this board is to levy a tax to pay the tuition of certain pupils, such purpose lies within the mandate of the constitution providing a system of free schools and is a valid purpose. It is likewise within the province of the legislature to delegate' this power to such a board whenever there is the necessity for such a tax by reason of a debt having been created.”

In People v. Cleveland, C., C. & St. L. R. Co., 288 Ill. 79, it was further held: “There is no constitutional limitation placed upon the legislature with reference to the formation of school districts or as to the agencies the State shall adopt for providing for free schools. It is entirely competent for the legislature to provide for the establishment of township high schools as well as school districts, and to confer upon each of said boards the power of taxation to the extent of the legislature’s will. People v. Chicago and Illinois Midland Railway Co., 256 Ill. 488.”

Boards of education of non-high school districts have no power to enter into contracts except as to certain election and other necessary incidental expenses, but whether they constitute a body corporate, capable of suing or being sued, we do not deem a necessary or important issue to be determined in this case. The appellants, as a board of education and as individuals constituting that board, do constitute an arm of the State for the purpose of levying a tax, drawing orders for the payment of tuitions and performing other incidental duties, and whether they act as a body corporate or in their individual capacities as a part of the school system of the State, they are equally amenable to the law and the performance of their statutory duty, and such performance may be enforced by mandamus. A judge could refuse to sign a bill of exceptions, a county recorder refuse to record a deed, or a State or county treasurer refuse to receive funds in payment of taxes, and with equal force answer a.petition for mandamus by stating that they did not constitute a body corporate and, therefore, were not subject to the writ. Writs of mandamus issue not only against bodies corporate but against individuals enforcing the performance of public duties required by law.

The petition in this case charges all the facts necessitating the performance of the duty by respondents. The demurrer of the respondents admits the facts to be true. It is a mandatory duty upon the board of education of the non-high school district to pay the tuition. Weatherford v. School Directors of Dist. No. 7, 317 Ill. 499. There is no merit in appellants’ contention.

Appellants further contend that mandamus will not lie to establish, as well as enforce, a claim of uncertain merit, citing People ex rel. The Attractograph Co. v. Dietrich, 166 Ill. App. 201; People ex rel. Northup v. County of Cook, 274 Ill. 161, and People ex rel. Mason v. Reddick, 181 Ill. 334. We have examined each of the cases cited and find none of them based upon a state of facts set out in the record in this case. It is sufficient answer to this contention to state that by the pleadings in the case at bar appellee’s claim is certain, fixed and specific and so admitted by appellants, and constitutes a statutory liability which it is the duty of appellants to- pay. Appellants contend that under the law their duties are not purely ministerial but that they have discretionary powers in fixing and arriving at the per capita cost of maintaining appellee’s high school, and that the writ of mandamus will not issue until such cost has been properly ascertained, by suit or otherwise. Appellants are not in a position to raise that question in this suit, having demurred to the petition. It could have been raised in the court below by plea and appellants could have had a jury trial upon that question. In People v. Czaszewicz, 295 Ill. 15, it is held: “A mandamus proceeding is an action at law and the parties to it have the right to have the issues of fact tried by a jury. But this right may be waived. Such waiver need not be expressly stated but is implied if the parties proceed with the trial before the court without objection.”

• Finally, it is contended by appellants that the court erred in permitting appellee to change its form of action from assumpsit to mandamus. Both are forms of common-law actions. Under the provisions of section 39 of chapter 110 [Cahill’s St. ch. 110, [¶] 39] it has been held in Thomas v. Fame Ins. Co., 108 Ill. 99: “It was evidently the intention of the legislature in adopting this provision, that no amendment after the commencement of the suit and before final judgment, resulting in a change or substitution of parties to the action or in a change of the form of the action, should be deemed a change of the action itself. (Sidway v. Marshall, 83 Ill. 438; Teutonia Life Ins. Co. v. Mueller, 77 Ill. 22; Dickson v. Chicago, Burlington and Quincy R. R. Co., 81 Ill. 215; Challenor v. Niles, 78 Ill. 78.) The only limitation upon the right thus conferred is, that amendments are to be allowed ‘on such terms as are just and reasonable,’ and ‘to enable the plaintiff to sustain the action for the claim for which it was intended to be brought, or the defendant to make a legal defence.” And the same rule is laid down in Monahan v. Fidelity Mut. Life Ins. Co., 242 Ill. 488. There was no error in the ruling of the court in this respect.

We have covered all of the assignments of 'error as argued by appellants in their brief. The order of the court requiring appellants to give a bond for appeal was assigned as error but the point was not argued. If appellants in this case were suing, or defending, as public officers, or defending in their official capacities for the benefit of the public under section 98 of chapter 110 of the Revised Statutes [Cahill’s St. ch. 110, [¶] 98], no bond should have been required. However, any expression of opinion by this court upon that question would not affect the merits of the judgment and we expressly do not pass upon that assignment of error, if proper to be assigned as error, in this form in the case.

Finding no error in the judgment of the circuit court of Edgar county the judgment is affirmed.

Affirmed.


author: Mr. Presiding Justice Partlow

text:
    George W. Huston, Trustee under the Last Will and Testament of Mary M. Weed, Deceased, Appellant, v. Alsop C. Weed, Individually and as Guardian ad Litem of James Edward Weed. William M. Miller, Appellee.
    Gen. No. 7,665.
    1. Trusts — jurisdiction of equity. Jurisdiction of all trust estates, upon bills properly filed and jurisdiction obtained, is given to equity.
    2. Trusts — provision requiring court approval of trustee’s bond as necessitating submission to equity jurisdiction. Provision of a will that before a trustee acts the court shall fix and approve the bond made necessary an appeal to the jurisdiction of the circuit court in equity by filing a bill therein.
    3. Trusts — retention of equitable jurisdiction once acquired over testamentary trust. Jurisdiction once required by a court over a trust under a will would be retained till the trust expired, for all purposes, including administration of the estate and accounting for the acts of the trustee.
    4. Trusts — estoppel of trustee to deny jurisdiction of court over trust assumed under Ms own defective bill. Trustee of an estate under a will who invoked aid of court without impleading necessary parties cannot take advantage of mistake by seeking to withdraw his report on the ground court was without jurisdiction.
    5. Trusts — necessary parties on proceedings to remove trustee. On a proceeding to remove a trustee under a will and appoint his successor all beneficiaries and remaindermen must be made parties.
    6. Trusts — want of necessary parties deprives court of jurisdiction to hear objections to report of trustee. If some beneficiaries and remaindermen have not been made parties to an action on a trust under a will, the court has no jurisdiction to hear objections to the trustee’s report or to fix compensation of the trustee.
    Appeal by plaintiff from the Circuit Court of Grundy county; the Hon. S. C. Stough, Judge, presiding. Heard in this court at the April term, 1926.
    Reversed and remanded with directions.
    Opinion filed December 13, 1926.
    Hayes, Munts & Young, for appellant.
    H. B. Smith and S. J. Holderman, for appellee.
   Mr. Presiding Justice Partlow

delivered the opinion of the court.

This is an appeal from an order of the circuit court of Grundy county sustaining objections to the report of appellant, George W. Huston, as trustee under the last will and testament of Mary M. Weed, who died August 9, 1908. One-half of her property was given to Alsop C. Weed, a son, and the other half to William M. Miller, her brother, in trust for James E. Weed, an incompetent son, for and during his natural life, and at Ms death, to Ms issue, if any, bom in lawful wedlock. If he died without issue it was to go to Alsop C. Weed, or his issue. If Alsop C. Weed died without issue prior to the death of James E. Weed, the property was to go to Frank C. Miller, William M. Miller, and Whitney C. Miller, nephews. In case William M. Miller refused to act as trustee, George W. Huston, the appellant, was appointed as successor in tmst. The will further provided that “before said trustee, or Ms successor in trust enters upon the duties of the trust herein created, he shall enter into a bond conditioned for the faithful discharge of his duties as such trustee in such sum and with such security, and in such form as the court in which this trust shall be executed may order and approve.” A codicil appointed George W. Huston as testamentary guardian or conservator of James E. Weed, and provided that he should have a reasonable compensation for Ms services. It also placed a charge of $100 per year payable to the trustee, for the benefit of his ward, upon the land devised to Alsop C. Weed.

On November 10,1908, appellant filed his bill in the circuit court of Grundy county, setting up the death of Mary M. Weed, and praying “that the court may appoint George W. Huston, trustee under the said will, and according to the terms and conditions thereof, and that your orator may have such other and further relief in the premises as equity may require and to your honor shall seem meet.” William M. Miller was the only defendant to this bill. He entered his appearance and answered that he had refused to act as trustee, consented to the appointment of Huston and that the amount of his bond be fixed according to the will. A decree was entered providing among other things “that this court has jurisdiction of the parties and of the subject matter of this suit; that all of the parties interested herein consent to the hearing of this cause at the present term of this court; that all of the material allegations contained in said bill are true; ’ ’ that Huston was appointed, with authority to exercise all the powers conferred by the will, and to do and perform all other acts required of him by law. He gave a bond which was approved by the court in the sum of $3,000, and subsequently, on May 8, 1925, he filed another bond in the sum of $10,000.

From the date of the filing of the decree to May 26, 1925, appellant made no report of the trust estate to the remaindermen nor to the circuit court, but upon that date he filed a report, in the original case, and Alsop O. Weed filed objections setting forth that the charges of the trustee for services were exorbitant; that the trustee had not kept the surplus fund invested, had not properly clothed the cestui que trust; that he had spent only $622.97 for clothing during a period of 17 years; that he had expended large sums of money in remodeling certain property in which he held a one-fourth interest for the benefit of his ward, and in which property- his wife had acquired a three-fourths interest from other heirs. The -objections prayed that the trustee be ordered to make further report of receipts and disbursements, and as the custodian of the person of his cestui que trust.

The court heard the objections and considerable evidence was taken. During the hearing the trustee made a motion to strike the objections from the files and for leave to withdraw his report. On cross motion of Alsop C. Weed, the court appointed Alsop C. Weed as guardian ad litem for James E. Weed and permitted him to file objections to the report, which were the same in substance as the ones previously filed, with the additional objection that by reason of the purchase of an interest in the estate by the wife of the trustee, the interest of the trustee had become adverse and antagonistic to the cestui que trust. The court refused to permit appellant to withdraw his report and strike the objections from the files, found that practically all of the objections should be sustained, entered a decree removing appellant as trustee, appointed his successor, ordered him to turn over all of the property to the successor, reduced the compensation of the trustee from about $9,000 to $350, together with certain interest which appellant had collected from funds in his hands.

The first question is as to the jurisdiction of the court. It is insisted by appellant that the decree filed in 1908 did not retain jurisdiction of the cause until 1925; that there were no directions in that decree requiring reports to be made, therefore that case was terminated in 1908 and there was no jurisdiction remaining in the court; that the court was in error in not allowing appellant to withdraw his report, and in removing appellant as trustee, for the reason that there were no proper pleadings for such action.

It is a well-known rule of law that equity has jurisdiction of all trust estates upon bills properly filed and jurisdiction obtained. In re Estate of Mortenson, 248 Ill. 520; Frackelton v. Masters, 249 Ill. 30; Wylie v. Bushnell, 277 Ill. 484; People v. Jobusch, 165 Ill. App. 540; Robinson v. Robinson, 214 Ill. App. 263. It is insisted, however, that in this case there was no necessity for the intervention of a court of equity and therefore the court was without jurisdiction. In support of this contention Warner v. Mettler, 260 Ill. 416, and Robinson v. Robinson, 214 Ill. App. 262, are cited. We do not think the facts in this case come within the rule announced in either of those cases. Those cases held that it is only where there is some reasonable doubt as to their powers and duties, or as to the rights of the parties interested, that trustees are entitled to the court’s direction; that the trustee has no right to go into a court of equity without some reasonable ground therefor; that the usual and proper course to invoke the jurisdiction of equity in matters of this kind is by filing a formal bill of complaint. In the Warner case an account was filed by the trustee without any other action being taken or relief prayed, and it was held that the court would not assume jurisdiction under that state of facts.

In this case, however, the will provides that before either of the trustees shall act the court shall fix the amount of the bond and approve the same with such sureties and in such form as the court in which the trust shall be executed may order and approve. Under this provision it was necessary before the trustee assumed his duties that he should give a bond. That was a condition precedent to his power and authority as trustee. The only court in which the bond could be given and the trust administered was the circuit court. It was therefore necessary for the trustee, or some other person, to file a bill in the circuit court, as was done in this case, praying that the amount of the bond be fixed and that the same be approved by the court.

It has been held in many cases that all beneficiaries and remaindermen are necessary parties in a chancery proceeding to appoint or remove a trustee. Regan v. West, 115 Ill. 603; Butler v. Butler, 164 Ill. 171; Jones v. Bryant, 204 Ill. App. 609; 2nd Perry on Trusts (6th Ed.) 1436. The bill as filed in 1908 did not make the cestui que trust nor the remaindermen parties defendant. A decree was entered which recited that the court had jurisdiction of the person of the defendant and the subject matter, and the bond of appellant as trustee was fixed. It found that it was the duty of the trustee to do and perform all acts required of him by law. The will having provided that the trust should be administered in a court, therefore the court had jurisdiction of the subject matter. When the court acquired jurisdiction for one purpose it acquired jurisdiction for all purposes, including the administration of the estate and an accounting of the acts of the trustee. Northwestern University v. Wesley Hospital, 290 Ill. 205; Anderson v. Anderson, 293 Ill. 565. If the court acquired jurisdiction for these purposes it retained jurisdiction until the expiration of the trust.

The appellant recognized the continuance of the jurisdiction of the court by filing his report 17 years after his appointment and by filing a new bond in 1925. He is in no position to complain of any misjoinder of parties when the original suit was filed. If he filed a defective bill, had himself appointed, and proceeded to act, he will not now be permitted to take advantage of his own act, and be heard to say that his appointment was void for want of proper parties and that the court did not have jurisdiction over him to hear the matter. Other parties in interest might have cause for complaint on this ground but they are not urging that point. The court properly refused to strike the objections from the files and properly refused to permit appellant to withdraw his report.

If the trustee was to be removed and his successor appointed, all of the beneficiaries and remaindermen were entitled to their day in court upon the hearing of the objections. The mere fact that the court appointed a guardian ad litem for the cestui que trust did not bring him under the jurisdiction of the court for the reason that he was not properly served with a summons. The pleadings in this case are extremely informal and consist only of the report and objections. In this condition of the record the court did not have jurisdiction under the pleadings to hear the objections, to remove the trustee, to appoint his successor, or to fix his compensation.

The decree will be reversed and the cause remanded with directions to allow all necessary parties to be made defendants to the bill, to require such pleadings as shall form an issue sufficient to raise all questions which shall be necessarily determined in the consideration of the objections, and to proceed to hear the report and make such orders as the law and the evidence justify. Pending further proceedings, the report of appellant, together with his account book as certified to this court, will be impounded by the trial court.

Reversed and remanded with directions.


text:
    Margaret Sullivan, Appellee, v. Catherine Sullivan et al., Appellants.
    Gen. No. 7,701.
    1. Wills — what requisite to show instrument creates charge upon land. To create a charge upon real estate under a will, it is only necessary that the words reasonably indicate the testator’s intention to so charge the land.
    2. Wills — when instrument deemed to have charged annuity upon land. An annuity under a will creates a charge upon real estate when the testator made it a charge of 75 cents an acre on the land devised to the other two heirs and the heir who was father and husband of defendants continued to make the per acre payments during his life.
    3. Wills — lien created by will charging annuity upon land. An annuity in form of a charge upon land is a lien in the entirety against all the land so that the heirs of the devisee of the land cannot have such charge apportioned among them.
    4. Wills — when cost of collecting annuity properly charged against heirs of devisee of land charged therewith. Solicitor’s fee of $600 for collection of past due annuity charged on land under a will making the devisee liable for costs of such collection on his failure to pay the annuity was properly charged against the heirs of the devisee of the land so burdened on their failure to pay the annuity.
    5. Wills — annuity under will to be decreed payable to annuitant instead of to. her attorneys. An annuity under a will, decreed to the lawful claimant, should be ordered paid to her and not to her attorneys.
    Appeal by defendants from the Circuit Court of Woodford county; the Hon. S. R. Baker, Judge, presiding. Heard in this court at the October term, 1926.
    Decree affirmed as modified.
    Opinion filed December 17, 1926.
    Edward F. Riely and Barnes, Magoon & Horton, for appellants.
    Fort & Fort, for appellee.
   Mr. Presiding Justice Partlow

delivered the opinion of the court.

Appellee, Margaret Sullivan, filed her bill in the circuit court of Woodford county against appellants, Catherine Sullivan, Charles Sullivan, Harry Sullivan, Joseph Sullivan, and Margaret Hupprich, who were the widow and heirs at law of William H. Sullivan, deceased, in which she sought to have a certain annuity due her under the will of her father, Lott Sullivan, made a lien upon certain lands devised to William H. Sullivan by his father Lott Sullivan, also for the payment of solicitor’s fee and costs. The case was referred to a master who recommended a decree as prayed in the bill. Exceptions to the report were overruled and a decree was entered as prayed, from which this appeal was prosecuted.

On May 6,1915, Lott Sullivan made his last will and testament. He died May 22, 1915, and his will was admitted to probate August 2, 1915. By the second clause of the will, the testator devised to his son, William H. Sullivan, 70 acres of land in fee, and 80 acres for life. Following this devise, in the same clause, was the following: “Said son William Sullivan is to pay to my daughter, Maggie Sullivan, 75e per acre, on the first of every January during her life, to be paid at any bank in the county where my daughter Maggie Sullivan may direct to have same paid. If not paid in due time, my son William Sullivan to pay all costs and collection charges. ’ ’ By the fourth clause, the testator devised to the daughter, Maggie Sullivan, the house and two acres of land where the testator lived, all household goods and furniture, one bay mare, one top buggy and harness, $5,000 in cash followed by this statement: “This is the money where she is drawing interest at the present time.”

At the time this will was made Margaret Sullivan was insane. Her father on September 2, 1912, caused to be filed in the county court of Woodford county, a petition against her for insanity. She was adjudged insane and committed to the Peoria State Hospital on September 2, 1913, where she remained until October 1,1916, when she was found to have regained her reason, was discharged, and her property restored to her.

Hpon the admission of the will to probate, William H. Sullivan entered into possession of the lands intended to be devised to him, and continued in posses-» sion until his death on July 2,1921. He regularly paid to Margaret Sullivan the annuity up to the time of his death, but she received no payment on said annuity after January 1,1921.

There was a mistake in the description of some of the land devised to William H. Sullivan, and for the purpose of correcting this error, on October 1, 1917, Margaret Sullivan and her brother Lott Sullivan, Jr., executed a deed for about 135 acres to William H. Sullivan, thus conveying to him the lands intended to be devised to him by the will. This deed contained the following clause: “The said Margaret Sullivan expressly reserves unto herself, and the said William H. Sullivan, grantee herein, agrees to pay her, the sum of 75c per acre on each and every acre of the above described premises, on the first day of each and every January during her natural life, for the purpose of carrying out the same provision in the last will and testament of the said Lott Sullivan, deceased.”

Margaret Sullivan designated the Minonk State Bank, of Minonk, as the place where such payment should be made, gave due notice of such fact to the parties interested, and demanded payment of the widow and heirs of William H. Sullivan, deceased.

The decree found the facts substantially as above stated, and further found that it was the intention of Lott Sullivan to make the payment of the annuity to Margaret Sullivan a lien upon the lands devised and intended to be devised to William H. Sullivan; that the payment of said annuity was a valid, existing and continuing lien upon all of said lands; that the present owners of said land took the same subject to said lien; that there was due Margaret Sullivan, on January 1, 1926, $806.25; that appellants are liable for the payment of said sum, together with all costs and collection charges, including a reasonable solicitor’s fee; that the costs are $94.85, and that a reasonable solicitor’s fee is $600; that the total amount of $1,501.10 shall be paid to solicitors for the petitioner herein within 30 days; that if appellants do not pay said sum, that the master in chancery shall sell the lands in and by said will devised, at public auction to the highest and best bidder for cash in hand.

Appellant insists that the decree is erroneous in finding that the will created a charge of 75 cents per acre on the lands devised and intended to be devised to William H. Sullivan.

The evidence shows that the testator at the time the will was executed owned several hundred acres of land and had some personal property. He had two sons and one daughter. At that time the daughter was in- ■ sane. He naturally wanted to make provision for her care and comfort. He gave her no real estate except the two acres where he lived. By the second clause of the will he made provision for her as above set forth. By the third clause he devised 240 acres of land to his son Lott Sullivan, Jr., and in the same clause made a provision for the payment of 75 cents per acre on this land similar to the one contained in the second clause. By the fourth clause he gave her certain personal property and $5,000. The will disposed of the whole estate, leaving no fund out of which the annuity could be paid unless it was a charge upon the land, or depended upon the personal obligation of the sons. It is apparent from the language of the will that the testator wanted to make the payments to his daughter specific and certain. He apparently did not want to rely upon the personal obligation of his two sons, hence he imposed a charge of 75 cents per acre on the lands devised to each.

It has been held in many cases that there is no specific language necessary to be used in a will in order to create a charge upon real estate. Any words that reasonably indicate the testator’s intention will be held to create such a charge. Daly v. Wilkie, 111 Ill. 382; Reid v. Corrigan, 143 Ill. 402; Parsons v. Millar, 189 Ill. 107; Williams v. Williams, 189 Ill. 500; Spangler v. Newman, 239 Ill. 616; Jacobs v. Ditz, 260 Ill. 98; Wingfield v. Edwards, 277 Ill. 176.

In Daly v. Wilkie, supra, the will devised certain real estate to a son and payment of $500 by the son to a daughter of the testator within seven years. It was held that the payment was a charge upon the real estate, and that the land could be sold to enforce the payment thereof.

In Parsons v. Millar, supra, certain lands were willed to a son provided he pay certain legacies within a specified number of years, and it was held that the son took the title in fee charged with the payment of the legacies.

In Wingfield v. Edwards, supra, by the seventh clause, the testator gave the land in fee to his daughters Mae and Martha Wingfield, subject to a life estate to the wife which was later extinguished. The eighth clause was as follows: “It is my will that from the death of my wife that Mae Wingfield and Martha Wingfield, if living, shall pay annually to my daughter Laura E. Edwards a sum equal to one-fourth the net income from above described eighty acres of land so long as they both shall live and hold the same and so long as my daughter Laura E. Edwards shall live.” The devisees entered into a contract to sell the land, claiming they had a right to sell it, and thereafter it would not be liable for the payment of the annuity to their sister. The purchaser refused to take the title. The court held that the period during which payments were to be made was as long as the devisees both should live and hold the land and as long as Laura E. Edwards should live, which meant during the joint lives of the parties while the devisees should hold their titles to the land; that the intention of the testator “was that Laura E. Edwards should have one-fourth of whatever the land might produce in the way of income, to be paid to her in money, and not that there should be a mere personal liability of the devisees to pay her a sum of money, ascertained by finding the income from a piece of land having nothing to do with the payments. He certainly did not intend to fix a mere measure of personal liability for the payments but did intend they should be charged upon the land.”

Under the authorities cited these payments to Margaret Sullivan were a charge against the land. Not only do we think this is the proper and legal meaning expressed in the will, but it was evidently the interpretation placed upon the will by William H. Sullivan during his lifetime. He not only paid the annuity regularly and promptly, but when the deed was executed to correct the error in description, substantially ■ the same language was embodied in that deed as was used in the will, with the possible exception that the language in the deed is even more explicit. It is expressly stated that the recital in the deed is for the purpose of carrying out the provisions of the will. If the recital in the deed was for the purpose of carrying out the provisions of the will, then it was the intention of William H. Sullivan, and of the testator, that the payments should not terminate at the death of William H. Sullivan for the reason that the will provided that they should continue during the life of Margaret Sullivan. There was no error in the finding in the decree that the annuity was a charge on the land.

It is insisted that even if the will did create such a charge against the land that the decree should have apportioned the payments among the appellants according to their respective interests in the land as inherited from William H. Sullivan. There is no merit in this contention. When William H. Sullivan obtained title to the land, he accepted it subject to this charge, which was a single charge and covered the entire property. Appellants, as heirs of William IT. Sullivan took the same title he had, and subject to whatever charges there were against him. Ellis v. Dumond, 259 Ill. 483; Meins v. Meins, 288 Ill. 463. The decree merely enforced the payment due as provided in the will. The court had nothing to do with the individual responsibility of the several appellants. That was a matter which did not concern appellee. Her lien was an entirety, so that under a sale made to enforce payment, the purchaser would take all of the title in fee subject only to the payment of the annuity. This was the lien created by the will, and appellants had no right to have it cut down, nor diminished, so that upon the failure to pay a part of the annuity, appellee could only sell a part of the land. Such a construction might require a multiplicity of suits. The decree properly made the annuity a charge against all of the land.

It is next insisted that the court was in error in al- ■ lowing a solicitor’s fee of $600. The will provided that if the legacy “is not paid in due time, my son William Sullivan to pay all costs and collection charges.” After the death of William H. Sullivan his heirs refused to make the payments. It was necessary for appellee to begin suit to enforce payment, and thereby she incurred costs and solicitor’s fees. She was not responsible for these items of cost. They were caused by the default of appellants and they are in no position to complain that a solicitor’s fee was allowed.

The decree provided that the amount of the annuity and solicitor’s fee 'Shall be paid to the solicitors for appellee for her use and benefit. It is insisted that the decree should have provided that the solicitor’s fee be paid to the solicitors, and that the annuity should be paid to appellee. The annuity was due to appellee and the decree should have so provided. The decree will be so modified in this court and will be affirmed with this modification.

Decree affirmed as modified.


author: Mr. Presiding Justice Gridley

text:
    Henry C. Eddy, Defendant in Error, v. William E. Dodson, Plaintiff in Error.
    Gen. No. 30,414.
    1. Judgments — decree pronounced without jurisdiction void. A decree pronounced without jurisdiction is absolutely void and may be attacked directly or collaterally.
    2. Judgments — presumption of jurisdiction from, fact of adjudication. A presumption of jurisdiction is raised when a court of general jurisdiction proceeds to adjudicate a cause.
    3. Judgments — presumption of jurisdiction contingent upon silence of record thereon. ' Presumption of jurisdiction applies only when the record is silent upon the question.

      4. Judgments — invalidity where record shows want of jurisdiction. If record of a case affirmatively shows want of jurisdiction, the judgment therein is void.
    5. Foreign judgments — impeachment by showing wamt of jurisdictional facts. Judgment rendered in another State may he contradicted as to facts necessary to give the court jurisdiction of either subject matter or person and lack of such facts makes the record a nullity though it recite their existence.
    6. Foreign judgments — nature of action to recover amount of deficiency decree given in sister State. Suit brought in Illinois to recover an amount found to be a deficiency in a Michigan judgment obtained without jurisdiction is suit on judgment .of a sister State and not merely on a debt.
    7. Foreign judgments — when not evidence of liability in this State for amount therein found due. Offer of Michigan court record showing judgment had without personal service on defendant in that State permits solely the inquiry into jurisdiction and is no evidence of personal liability of defendant for amount of the deficiency judgment so obtained.
    Error by defendant to the Superior Court of Cook county; the Hon. Michael L. McKinley, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1926.
    Reversed and remanded.
    Opinion filed December 21, 1926.
    McElroy & Huddleston, for plaintiff in error; Walter William Pearson, of counsel.
    Lucien E. Harding, for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

In an action in debt, based upon the amount of a deficiency arising under a decree in a proceeding to foreclose a mortgage in the circuit court of Allegan county, Michigan (in which proceeding plaintiff was complainant and defendant the main defendant), the jury, at the close of all the evidence and at the court’s direction, returned a verdict finding the issues for plaintiff, and finding the amount of the debt to be $5,166.94, and assessing plaintiff’s damages at $1,514. Judgment was entered upon the verdict against defendant and be sued out the present writ of error.

The action was begun on August 21, 1923. Plaintiff’s declaration consists of a special count and the common counts in debt. He avers in the special count in substance that, at the February, 1919, term of said .Michigan court he obtained a decree in the foreclosure proceeding for $24,755.96; that the mortgaged premises were sold to satisfy the decree by a commissioner for $20,000, leaving a deficiency of $5,166.94, “for which deficiency the said William E. Dodson was under and by the decree personally liable to the plaintiff;” that the commissioner’s report of sale was duly approved; that thereby Dodson became indebted to plaintiff in said sum of $5,166.94, together with interest thereon at 5 per cent per annum from the date of said report, May 15, 1919, “whereof the defendant was convicted, as by the record thereof remaining in the same court more fully appears;” that said debt, damages and costs now amount to $6,268.45, and said decree remained in full force and effect, whereby an action has accrued to plaintiff to demand from defendant the said amount; yet defendant has not paid to plaintiff and refuses to pay the said sum of money “so by him recovered as aforesaid,” to plaintiff’s damáge, etc. In plaintiff’s affidavit of claim he says that his demand “is for the amount of a decree” entered May 15, 1919, in said Michigan court for the sum of $5,166.94, together with interest at 5 per cent per annum from May 15, 1919. On defendant’s motion plaintiff was ruled to file and filed a bill of particulars, which is in substantial accord with the allegations of plaintiff’s special count, and concludes with the statement that plaintiff’s claim “is for the amount-of said deficiency decree.”

Defendant filed several pleas — one nil debet, another nul tiel record, and a third in which it is alleged that the supposed decree of the Michigan court “was and is null and void as to this defendant with respect to any deficiency therein recited” because the court at the time of entering the decree “had not acquired jurisdiction of the person of defendant.”

On the trial, plaintiff offered in evidence a duly exemplified copy of the record of the proceedings in the foreclosure suit, including the bill, process, orders of court, decree, commissioner’s report of sale, and transcript of the evidence. Over defendant’s objection and after argument, the record was admitted in evidence, from which it appears that the bill was one to foreclose a mortgage on certain premises in Michigan given to plaintiff by said Dodson and wife; that Dodson was not personally served with process in Michigan; that he resided at Evanston, Illinois, and on September 20, 1918, was served with a copy of the bill, notice of the pendency of the suit, etc., at Chicago, Illinois; that a decree of sale of the premises was entered on February 24, 1919, in which it was recited that the bill had been “taken as confessed,” and in which it was found from proofs taken in open court that there was due to plaintiff the sum of $24,755.96; that, after ordering a sale of the premises by a commissioner to satisfy said sum, the court further ordered that, if the moneys arising from the sale should be insufficient to pay said sum, interest, costs and expenses, the commissioner specify the amount of the deficiency in his report, and that upon the confirmation of said report the said defendant, Dodson, “who is hereby decreed to be personally liable for the debt secured by said mortgage,” pay to complainant the amount of such deficiency, with interest thereon from the date of such report; and that on May 15, 1919, the commissioner’s report of sale of the premises to plaintiff for $20,000 was filed and confirmed, showing a deficiency of $5,166.94.

The foregoing exemplified copy of said record was the only evidence introduced by plaintiff. Defendant testified in his own behalf to the effect that during the entire time of the pendency of said foreclosure suit he was a resident of Illinois; that he was served with a copy of the bill in Chicago in September, 1918; but that he did not enter his appearance in the Michigan court, or authorize any attorney to do so for him. During the argument over defendant’s objection to the introduction of said exemplified record, and during further argument after its introduction on defendant ’s motion to strike it, and for a directed verdict in his favor, which motions were denied, defendant’s attorney contended in substance that, as the proceeding in Michigan was one in rem to foreclose a mortgage on certain Michigan land, and as it appeared that defendant had not been personally served with process in Michigan and had not submitted himself to the jurisdiction of the Michigan court, the court was without power or jurisdiction to enter that portion of the decree m personam against defendant, which adjudged that defendant was “personally liable” for any deficiency arising out of the sale of the land, and that such decree was void and unenforceable in Illinois, and' that evidence thereof was not competent against defendant in the present action of debt. Plaintiff’s attorney, while admitting that defendant had not been personally served in Michigan and had not submitted himself to the jurisdiction of the Michigan court, contended that the offered record was “prima facie evidence” of the debt therein shown, and stated in argument that the same was “prima facie evidence of everything that is contained in it, which would include the amount of that deficiency, and that the only way defendant can avoid the force and effect of that judgment would be by showing that he didn’t owe the money,” and further stated: “I think there is a little misapprehension as to the nature of this action. This is an action intending to recover a debt evidenced by a record of a court of another state. If it was introduced and offered as a judgment of that court, then it would not be enforceable in this state as evidence of the debt.”

In Forrest v. Fey, 218 Ill. 165, 169, it is said: “Where a.transcript of a decree entered by a court of another State, duly certified, is offered in evidence in this State, no questions are open to inquiry except questions of jurisdiction (McMillan v. Lovejoy, 115 Ill. 498) * * *. In the absence of jurisdiction to pronounce a decree it is absolutely void, and may be attacked either directly or collaterally. Where a court of general jurisdiction proceeds to adjudicate a cause there is a presumption of jurisdiction; but this presumption applies only when the record is silent upon the question, and if there is an affirmative showing in the record that there was no jurisdiction the judgment or decree will be void. * * * If it appears from the whole record in a case that the court did not have jurisdiction, the presumption in favor of jurisdiction is overcome. (Osgood v. Blackmore, 59 Ill. 261.)”

In Thompson v. Emmert, 15 Ill. 415, 416, an action in debt upon a judgment rendered in Pennsylvania, it is said: “According to the decisions of this court, the record afforded conclusive evidence that his (Emmert’s) appearance was entered by an attorney, and presumptive evidence of the authority of the attorney to act for him. Prima facie, therefore, the court had jurisdiction of his person, and authority to render the judgment against him. It was, however, competent for him to rebut the presumption, by proving that the attorney had no authority to enter his appearance to the action. This he established by the testimony of the attorney himself. The presumption in favor of the jurisdiction of the court over Emmert was thereby overthrown.”

In Pembleton v. Illinois Commercial Men’s Ass’n, 289 Ill. 99, 103, an action in debt upon a judgment rendered in Nebraska against the defendant, .an.Illinois corporation, the court, after referring to the provision of the Federal Constitution requiring that full faith and credit shall be given in each State to the judicial proceedings of every other State, says: “It has been held by the Federal courts that the record of a judgment rendered in another State may be contradicted as to the facts necessary to give the court jurisdiction, and if it be shown that such facts did not exist the record will be a nullity, notwithstanding it may recite that they did exist; that want of jurisdiction may be shown either as to the subject matter 'or the person. (Thompson v. Whitman, 18 Wall. 457; Simmons v. Saul, 138 U. S. 439; National Exchange Bank v. Wiley, 195 id. 257.)”

Notwithstanding the statements of plaintiff’s counsel, made in the trial court and repeated in his printed argument here filed, to the effect that plaintiff did not bring suit on any judgment or decree of a Michigan court but on a debt “evidenced by a record” of that court, we think it is apparent, from the allegations of the special count of the declaration and of the bill of particulars, that plaintiff’s suit is on the amount of the deficiency, $5,166.94, ascertained on May 15, 1919, when the Michigan court confirmed the commissioner’s report in the foreclosure proceedings, and is in effect a suit on a deficiency decree rendered against defendant by said court. The special count charges in substance that upon the sale of the mortgaged premises to satisfy the foreclosure decree there was a deficiency of $5,166.94, for which deficiency the defendant, Dodson, “was under and by the decree personally liable to the plaintiff,” and that thereby defendant became indebted to plaintiff in said sum, together with interest thereon, “whereof the defendant was convicted, as by the record thereof remaining in the same court more fully appears.” The word “convicted,” in its most extensive sense, signifies “the giving of judgment against a defendant.” (13 C. J. 910.) And in his bill of particulars plaintiff says that his claim in this suit is “for the amount of said deficiency decree-in said suit in the circuit court of Allegan county, Michigan, amounting to $5,166.94,” etc. Under the pleadings, when the record of the Michigan court was offered in evidence in the instant case, no questions were open to inquiry except those of jurisdiction (Forrest v. Fey, supra), and from the record itself it appeared that that portion of the decree in question, wherein the court adjudged that defendant was “personally liable” for the stated deficiency, was improper and void because the court had not acquired jurisdiction of defendant’s person, and that said record was not evidence against defendant of any personal liability for said deficiency as a debt. (Cooper v. Reynolds, 10 Wall. (U. S.) 308, 318; Manchester v. McKee, 4 Gilm. (Ill.) 511, 520; First Nat. Bank of Riverside v. Eastman, 144 Cal. 487, 491.) Plaintiff’s counsel has cited certain cases which he claims support his contention, but, considering the pleadings and evidence in the instant case, we do not think that they do. Some are not at all applicable; in others the decree sought td be enforced in the second suit had been entered after the court had acquired jurisdiction of the person of the defendant; and in others the suits to recover the deficiencies were based upon evidence of the original indebtedness, of which in the present case there was no evidence offered.

Our' conclusions are. that the superior court erred in overruling defendant’s motion to strike the exemplified copy of the record of the" Michigan court, in instructing the jury to find the issues for plaintiff, etc., and in entering the judgment in question against defendant. Accordingly the judgment is reversed and the cause remanded.

Reversed cmd remcmded.

Fitch and Barites, JJ., concur.