text:
    Edgar County Building and Loan Association, Appellant, v. Carl Calvin et al., Appellees.
    Gen. No. 8,630.
    Heard in this court .at the December term, 1931.
    Opinion filed October 17, 1932.

      F. C. Van Sellar, for appellant; Riley McClain, of counsel.
    O’Hair & McClain, for appellees.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This is an appeal from the Edgar county circuit court tried below on a stipulation of facts. ,

Carl and Ella Mae Calvin, being the owners of lot number six in M. F. Collier’s addition to the City of Paris, borrowed from the Edgar County Building & Loan Association $800, executing the usual writing obligatory, subject to the by-laws of the Association, and on the same date, April 3, 1924, executing a mortgage thereon to the Association, securing the debt, which mortgage was duly recorded. Subsequently, being indebted to F. T. O’Hair, trustee, on the 29th day of May, 1925, the Calvins executed and delivered to the trustee a note and trust deed on the same real estate, which trust deed was duly recorded.

On the 7th day of July, 1928, the Calvins, being in default on their obligation to the Association, in order to avoid the expense of foreclosure, executed and delivered to the Association a warranty deed to the premises, which was duly recorded, but the Association did not cancel their obligation nor release the mortgage. At this time the Calvins were insolvent and the premises were not worth the $800 still due on the obligation. The amount due the Association from the Calvins is $1,136.76 and the amount due the trustee is $334.46.

Appellant, claiming that the trust deed to appellee was a cloud on the title of appellant, filed its bill to foreclose under its mortgage. On the hearing the court found there was a merger of the mortgage in the warranty deed and ordered the bill dismissed, from which order this appeal is taken.

The contention of the appellant is that the acceptance of the warranty deed, when the Calvins were insolvent and the property was not worth the mortgage indebtedness, for the sole purpose of avoiding the expense of foreclosure, retaining the evidence of the debt and not releasing the mortgage, did not result in a merger, and the wiping out of its mortgage; that it is apparent from all the facts there was no intention to let in a junior mortgagee or lienor; that to declare a merger in this case would be inequitable and unjust.

In an identical case, the court in the early case of Campbell v. Carter, 14 Ill. 286, 289, expressed its opinion as follows: “ ‘Upon this subject, a court of equity is not guided by the rules of law. It will sometimes hold a charge extinguished where it would subsist at law; and sometimes preserve it where at law it would be merged. The question is upon the intention, actual or presumed, of the person in whom the interests are united. In most instances, it is, with reference to the party himself, of no sort of use to have a charge on his own estate; and, where that is the case, it will be held to sink, unless something shall have been done by bim to keep it on foot.’ Again: ‘Where no intention is expressed, or the party is incapable of expressing any, I apprehend the court considers what is most advantageous for him.’ It is said by the Chancellor, in Compton v. Oxenden, 4 Brown’s C. C. 397: ‘WTiere there is a union of rights, neither of them can be executed at law; but this court will preserve them distinct, if the intention to do so is either expressed or implied. ’ Chancellor Kent remarks, in James v. Johnson, 5 Johns. C. R. 417: ‘If a person takes the legal estate by mortgage, and then, by his own act, takes the equity of redemption, and vests it in himself, the estate is discharged from the incumbrance. It would be a burden to no purpose. This is the good sense and reason of the thing. Where debtor and creditor become the same person, there can be no right put into execution; it must, of course, be extinguished. This is the general rule, both at law and in equity; and, in equity, the merger is prevented, and the distinction of the estates preserved, in special cases only. It is where the intention of the party is distinctly declared at the time, or where something just and beneficial requires the charge to be preserved, in a case in which the party has not declared, or cannot declare, his intention.’ It is said, in Hatch v. Kimball, 16 Maine, 146: ‘It is, in each case, a question of intention, whether or not there is an extinguishment of the charge upon the estate. If, at the time the mortgage is taken in, the intention to extinguish it appears, that is decisive. If it does not, equity presumes it to be outstanding, or extinguished, as the interests of the party may require.’ The court say in Gibson v. Crehore, 3 Pick. 475: ‘When the purchaser of a right to redeem takes an assignment, this shall, or shall not, operate as an extinguishment of the mortgage, according as the interests of the party taking the assignment may be, and according to the real intent of the parties.’ The same doctrine is laid down in the cases of Helmbold v. Man, 4 Wharton, 410; Moore v. Harrisburg Bank, 8 Watts, 138; Gardner v. Astor, 3 Johns. C. R. 53; and Starr v. Ellis, 6 Johns. C. R. 393. Indeed, there seems to be no conflict of opinion upon the subject.”

In Richardson v. Hockenhull, 85 Ill. 124, the court held: “A court of equity will keep an incumbrance alive or consider it extinguished, as will best serve the purposes of justice and the actual and just intention' of the parties. The intention is the controlling consideration, and to arrive at this the court will look into all the circumstances of the case.

“If a mortgage is the eldest lien, and is for an amount equal to or exceeding the value of the mortgaged premises, and the mortgagee, to avoid the expense of foreclosure,. takes a conveyance from the mortgagor, a court of equity will not permit the mortgaged premises to be swept away from him by a junior judgment creditor, without payment of the mortgage, under the pretense that its lien has been lost by merger, but will enjoin the sale at law, or restrict the judgment creditor’s lien to the equity of redemption.” And in a much later case, Moffet v. Farwell, 222 Ill. 543, 548, Mr. Justice Farmer stated the rule as laid down in the earlier cases:

“Three things are relied upon by plaintiff in errólas establishing the intention of Charles B. Farwell, at the time of taking the deed, to be to relinquish all right and interest under the mortgage and rely solely upon the deed, namely: the acceptance of the special warranty deed; the cancellation and delivery to Crain of the note and mortgage, and the paragraph in the stipulation of facts that the deed was received in satisfaction of the indebtedness represented by the note and mortgage and in lieu of the mortgage security, and to avoid the expense and delay of foreclosure. We are of opinion the evidence in this record does not show Farwell’s intention to have been to release all claim and right under the mortgage and rely solely upon the deed. There is nothing in the deed from Crain to him from which such intention is necessarily to be inferred, nor does the delivery to Crain of the canceled note and mortgage prove that such was his intention and purpose. This court held in Richardson v. Hockenhull, supra, that such an intention was not proven by the surrender of the note and the release of the mortgage upon the record by the mortgagee upon the receipt of 9 deed to the mortgaged premises, ’ ’

From this rule the courts have not swerved. No expression of intention by appellant having been made on the acceptance of the deed, the mortgage and notes of appellant having been kept, alive and it appearing manifestly unfair and inequitable to appellant to effect a merger in this case, the decree of the circuit court of Edgar county is reversed, and the said cause is remanded for further proceedings in accordance with the views expressed in this opinion.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Justice Shurtleff

license: Public Domain

text:
    Joseph Quigley, Appellant, v. Anna Quigley, Appellee.
    Gen. No. 8,635.

      Heard in this court at the April term, 1932.
    Opinion filed October 17, 1932.
    Burnett M. Chiperfield, Claude E. Chiperfield and Robert B. Chiperfield, for appellant.
    Frederic A. Perkins, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This was a bill filed by appellant against appellee, in the circuit court of Fulton county, praying a divorce from appellee and appellee presented her answer and a cross-bill against appellant praying the' same relief from appellant.

At the September, A. D. 1929, term of the circuit court of Fulton county, appellee presented her petition for temporary alimony subscribed and sworn to by her, and appellant also filed his sworn answer to . appellee’s petition for temporary alimony during said September term. Further affidavits were filed and the cause continued from the September term, 1929, to the January term, A. D. 1930, and upon April 23, 1930, during said January term, the record shows the following proceedings had and taken:

“Now on this day comes Anna Quigley, the defendant in the original bill and the cross-complainant in the cross-bill, by her solicitors, and Joseph Quigley, complainant in the original bill and cross-defendant in the cross-bill, by his solicitors; and this cause coming on to be heard upon the petition of the said Anna Quigley for alimony pendente lite and other relief, and the Court having heard the evidence and the arguments of counsel for the respective parties, and being fully advised in the premises, doth order, adjudge and decree that the said Joseph Quigley, complainant and cross-defendant, pay to the said Anna Quigley, defendant and cross-complainant, as and for alimony during the further pendency of this suit, the sum of Thirty-five Dollars ($35.00) on the first day of May, A. D. 1930, and the further sum of Thirty-five Dollars ($35.00) on the first day of each succeeding month; that said payments be made through the Clerk of this Court and by him transmitted to the said Anna Quigley.”

The January term, 1930, of said court adjourned on said April 23, 1930, and thereafter, in the June term, 1930, of said court, the appellee on June 6, 1930, presented her petition as follows:

“That an order was entered on April 23, 1930, in said cause requiring complainant and cross-defendant to pay to her $35 per month, commencing on May 1, 1930, and a like sum monthly on the first day of each month thereafter; that although demanded, the said Joseph Quigley has neglected and refused to comply with said order; and prays that a rule be entered requiring him to show cause why he should not be punished for contempt of court.”

Thereupon, an order was signed by the court requiring appellant, to show cause on June 11, 1930, at the hour of 10 o’clock, a. m. “why he has not complied with said order.”

A notice was served upon said appellant to show cause on said June 11 why he has not complied with said order and why he should not be' punished for contempt, etc. Thereupon, appellant entered a motion in said court as follows: “And now comes the complainant and cross-defendant, Joseph Quigley, and moves the Court to set aside and vacate the rule of June 6th, 1930, upon him to be and appear before the Court on the 11th day of June, A. D. 1930, at 10 o’clock a. m., and show cause why he should not be punished for contempt of court for the following reason:

“Because the said rule was entered in said court without any notice to this complainant and • cross-defendant and without any opportunity to appear and resist the same. ’ ’

And upon June 11,. 1930, the following entry was made upon the judge’s docket in said cause: “June 11, 1930. Decree set aside. Def. given leave to plead to petition by June 20, 1930.”

And thereupon the clerk of said court entered in Volume 61 of the Chancery Record thereof at page 558 the following order: “Now on this day into open court come the parties to this cause and also come their solicitors respectively.

“Whereupon now here in open court the Decree heretofore entered herein is hereby set aside and vacated and the complainant is given leave by the Court to plead to the Petition of the defendant by June 20th, A. D. 1930.”

Thereafter, appellant presented and filed, by leave of court, his further answer, under oath, to appellee’s said petition, for temporary alimony on July 31, 1930, as follows: “July 31, 1930. Answer of Joseph Quigley filed in said cause as follows:

“And now comes the said Joseph Quigley, complainant in the original bill of complaint and defendant in the cross-bill of complaint and respectfully shows to the Court that the said defendant in the original bill of complaint, Anna Quigley, has in her possession property belonging to this defendant in a greater sum than would amount to the sums ordered to be paid to the said Anna Quigley by this Court for temporary alimony and that she is entitled to receive nothing from this complainant at the present time by reason of the facts hereinabove stated.” Answer verified.

Thereafter, no action of any kind was taken in said cause until four terms of court had passed, and appellee on November 6, 1931, filed her sworn denial to the matters set forth in appellant’s answer of July 31, 1930.

Thereafter, the following proceedings were had in said cause, on November 21, 1931, as appears by the court record: “November 21, 1931. Motion to amend record in substance as follows:

“Moves to amend record in said cause by expunging from said record that portion set forth in Volume 61 of the Chancery Records of said Court at page 558, in words and figures as follows:

“Joseph Quigley
v.
Anna Quigley
No. 22504 Divorce
“Now this day into open Court comes the parties to this cause and also comes their solicitors respectively.
“Whereupon now here in open Court the decree heretofore entered herein is hereby set aside and vacated and complainant is given leave by the Court to plead to the petition of the defendant by June 20th, A. D. 1930,”

for the following reasons :

That on October 7, 1929, Anna Quigley filed her petition for temporary alimony and on April 23, 1930, a decree for alimony pendente lite was entered requiring Joseph Quigley to pay said Anna Quigley as alimony during the further pendency of said suit $35 per month on May 1, 1930, and monthly thereafter; that on June 6, 1930, Anna Quigley filed a petition for a rule on Joseph Quigley to show cause why he should not be punished for contempt of court for failing to pay alimony as ordered;

That on, June 6, 1930, an order was entered requiring Joseph Quigley to appear on June 11, 1930, and show cause why he should not be punished for contempt of court, and hearing on said petition was fixed for June 11, 1930.

Motion by Joseph Quigley entered on June 9, 1930, to set aside arid vacate the rule entered on June 6, 1930; that on June 11, 1930, the following entries were made on the Judge’s docket:

“June 11, 1930, Decree set aside — Def. given leave to plead to petition by June 20, 1930.”

And thereupon the following entry was made in the Chancery Eecord of said court in said cause:

“Joseph Quigley
v.
Anna Quigley
No. 22504 Divorce
“Now this day into open Court comes the parties to this cause and also come their solicitors respectively.
“Whereupon now here in open Court the decree heretofore entered herein is hereby set aside and vacated and complainant is given leave by the Court to plead to the petition of the defendant by June 20th, A. D. 1930.’.’

That said entry was made through the mistake and misprision of the clerk of said court; that no motion was before the court to set aside and vacate the decree for temporary alimony. The only motion made to the court was that the order of June 6,1930, requiring said Joseph Quigley to show cause why he should not be punished for contempt be set aside.

That afterwards on July 31, 1930, the said Joseph Quigley filed his affidavit in support of his motion of June 9, 1930, stating that the said Anna Quigley was in the possession of property belonging to defendant in a greater sum than the amount ordered to be paid by him to her for temporary alimony, and that she is entitled to receive nothing at the present time by reason thereof.

That subsequently a hearing was had on November 12, 1931, on the petition of the said Anna Quigley that Joseph Quigley be required to show cause why he should not be punished for contempt, etc., that the entry made by the clerk is untrue and does not set forth the true facts concerning the order of the court; and that the record should be amended so as to show the true facts and that part of the record in Volume 61 at page 558 should be expunged.

The appellant appearing specially to the proceeding to amend the record, objected to the proceeding and moved to strike portions of the motion of appellee, and raised the question of jurisdiction on the part of the court to amend the record after the passing of the term; nevertheless, the motion of,appellee was allowed and the decree entered on June 11, 1930, in the chancery record in Volume 61, at page 558, the former decree, was expunged and canceled of record.

There was a hearing in said cause before the court commencing November 6, 1931, of which certificate of evidence is incorporated in the record, and which includes the proceedings to expunge the record of the decree entered June 11, 1930. At this hearing, the financial affairs of appellee and appellant were gone into fully and the court entered an order and decree on November 21, 1931, as follows: “Finding by court that complainant in original bill is in contempt of court for failure to pay alimony provided for by order thereon April 21,1930, and ordering that defendant be committed to the County Jail at Fulton County until he pays the sum of $665 to the clerk of the court for use of the defendant in the original bill.

“Order for warrant of commitment to issue forthwith. ’ ’

Appellant has appealed from said order and brings the record to this court for review. Appellant contends that there is no valid order or decree in the record requiring appellant to pay any sum as alimony, and that the order and decree of April 23, 1930, is of no force and effect for two reasons:

First, that it is supported by no proofs in the records, and that the various affidavits of appellee and appellant, supporting' and opposing the petition for alimony, incorporated only in the clerk’s chancery record, are not a part of the record and have no probative force and effect in this case. No testimony was heard upon the petition. The affidavits, copied in the record by the clerk, are not a part of the record and there were no proofs of any kind before the court or any other basis for the entry of the order for alimony of April 23,1930. (Lange v. Heyer, 195 Ill. 420; DuQuoin Water-Works Co. v. Parks, 207 Ill. 46, 49; Bellinger v. Barnes, 223 Ill. 121, 124; Williams v. DeRoo, 316 Ill. 23.)

Presumptions which will aid a judgment at law do not exist in favor of decrees in chancery and the court will not presume that any evidence was given in the court below except such as appears by the recitals of the decree or is otherwise made to appear. (Rogan v. Eads, 92 Ill. App. 157; Farwell Co. v. Patterson, 76 Ill. App. 601, and cases cited; McIntosh v. Saunders, 68 Ill. 128; Baird v. Powers, 131 Ill. 66; Ryan v. Sanford, 133 Ill. 291; Jele v. Lemberger, 163 Ill. 338.)

' A party in whose favor relief is decreed in a chancery case must in some way preserve in the record the evidence or the facts justifying the decree, as no presumption will be indulged in that the evidence was sufficient for that purpose. (Ohman v. Ohman, 233 Ill. 632; Van Meter v. Malchef, 276 Ill. 451; Akin v. Akin, 268 Ill. 324; Gengler v. Hooper, 324 Ill. 47.)

Second: The court set aside said decree on June 11, 1930. On April 23, 1930, the court had entered a decree for temporary alimony, which was spread upon the records of the court.

On June 6, appellee had filed a petition in court, setting out the decree for temporary alimony, alleging repeated demands for payment, and praying a rule on appellant to show cause why he should not be held in contempt for the nonpayment of alimony, and the court issued a citation, a rule to show cause, citing appellant into court June 11 to show cause why he should not be held to be in contempt. This was not a decree and was not a final order of any kind. It was a mere citation. On June 9 appellant appeared in court and moved the court: “to set aside and vacate the rule of June 6, 1930, upon him to be and appear before the Court on the 11th day of June, A. D. 1930, at ten o ’clock a. m. and show cause why he should not be punished for contempt of Court for the following reason: Because the said rule was entered in said Court without any notice to this complainant and cross-defendant and without any opportunity to appear and resist the same,” and on June 11th, the court entered in its docket: “Decree set aside. Def. given leave to plead to petition by June 20, 1930.” And on July 31, 1930, appellant pleaded to appellee’s petition, matter herein-before set out, not in answer to the rule to show cause, but matter and substance tending to show that appellant should not pay any temporary .alimony at all, and here the matter stood for 16 months with no action having been taken at all until November 6, 1931, when appellee filed an additional affidavit in said cause, not as to the merits of the rule to show cause, but going to the merits of her petition for temporary alimony. "Whatever was in the mind of the court, when the decree of June 11,1930, was entered, vacating the former decree, it has been construed by all parties in its legal effect to have vacated the decree for temporary alimony entered April 23, 1930. To enter the decree of contempt in this case, appellee and the court have found it necessary to vacate the. decree of June 11, 1930, and expunge the record of that decree, based •upon an affidavit of appellee, incorporated in the record, and which the court refused to strike on motion of appellant. It is further to be noted that this decree was not vacated or expunged from the record until at the close of an extended hearing on the merits of appellee’s petition as to her right to have any alimony, commenced on November 6, 1931, and ending on November 21,1931, when the said decree of June 11,1930, was expunged and at the same time appellant was found guilty of contempt. As to just what was gone into at this hearing it is of interest to note that when appellant, the first witness, was called to the stand, the court remarked: “Let this witness testify to any matters prior to the entry of this order with reference to set off and it is all admitted subject to objection. It will take some time otherwise, to protect the record and then when I pass upon it I will pass upon the admissibility of this evidence. If it is admissible I will admit it and if it is not admissible I will not admit it. By Mr. Frederic A. Perkins: Then it is also understood that if we go into this matter we can go into the question of the financial transactions in their marital life? By Mr. B. M. Chiperfield: I don’t care what answer you make to it.”

And from that the parties proceeded to try the merits of appellee’s contention that she was entitled to temporary alimony. All of the financial matters of their marital life were gone into, and the issue was squarely whether or not appellee was entitled to temporary alimony. No claim was made that appellant had paid the two months’ alimony, according to the decree of April 23, 1930. No claim was made that appellant was able to make the payment. There never had been a trial on the merits of appellee’s petition for temporary alimony before. Without going into the merits of appellant’s proofs, it is plain he was entitled to a trial and it is hard to understand how or why he would waive a trial.

In appellant’s motion of June 9, 1930, to set aside and vacate the rule of June 6, 1930, upon him to appear, he states the ground of Ms motion: “Because the said rule was entered in said Court without any notice to this complainant and cross-defendant, and without any opportunity to appear and resist the same.” If appellant had meant by that, merely no notice of the rule to show cause or citation, that is giving the language a strained construction, because appellant was not entitled to any notice of a rule to show cause. Such citations, upon a proper showing, issue as of course when based on a sufficient decree.

The rule to show cause recited the decree and order of April 23, 1930, requiring appellant to pay alimony at the rate of $35 a month, and it was evidently that order and rule, recited in the citation and entered on the last day of the January term, 1930, that appellant referred to and stated that it had been entered without notice and without any opportunity to appear and resist the same. And it does not militate against the construction stated that the record recites that both parties and their counsel were in court on April 21st; that a hearing was had upon said petition and that appellee filed an extended affidavit and a letter of appellant’s in regard to the subject matter, none of which are made a part of the record by a certificate of evidence, and that docket entries were made and a decree was signed April 23, the last day of the term. Inasmuch as the court on June 11, 1930, promptly set aside the decree of April 23, 1930, which it legally could have done, and in orderly manner should have done, for the want of proofs to support the decree, and the decree having been taken without notice, if such were the case, and the parties to the cause having, without the objection or exception of either, again tried the issues purporting to have been tried on April 2l, 1930, we must presume that the court and all parties knew and understood just what decree was set aside by the order of June 11, 1930. The court and all parties having recognized that the decree of June 11, 1930, was of binding force to vacate the decree of April 23, 1930, unless set aside, it is not necessary for this court to go back of that situation. The principal question in this case is the legality of the expunging of the order and decree of June 11, 1930, by the decree of November 21, 1931.

Upon the proofs being heard, commencing November 6, 1931, between appellee and appellant as to the merits of appellee’s petition, praying for temporary alimony, appellee, on November 21, 1931, moved to “amend the record in said cause and by expunging from said record that portion set forth in Volume 61 of the chancery records of said court at page 558 thereof,” and specially reciting the record as heretofore set out. Accompanying said motion, appellee presented an affidavit attempting to recite the proceedings, as had and taken in connection with said decree and the prior proceedings, of which there was no certificate of evidence. Appellant, appearing specially, moved to strike various allegations in said affidavit from the files. This motion the court denied. There was presented to the court and there was before the court, no other memorial, docket, entry, or memoranda, except the proceedings recited in this opinion, and the said affidavit of appellee, and no expression or action of the clerk of the court. Nevertheless, the court found and decreed “That said entry was made through the mistake and misprision of the Clerk of said Court”; etc. and expunged the order, and thereupon ordered the appellant committed for contempt.

The verification of appellee’s petition for temporary alimony and the supplemental affidavit of April 22, 1930, and the affidavits of November 6, 1931, being made upon information and belief were insufficient. (Chicago Exhibition Co. v. Illinois State Board of Agriculture, 77 Ill. App. 339, 340; Hovnanian v. Bedessern, 63 Ill. App. 353; Stirlen v. Neustadt, 50 Ill. App. 378; Brabrook Tailoring Co. v. Belding Bros. & Co., 40 Ill. App. 326.)

As to expunging the record of the decree of June 11, 1930, the law is well settled that a court is powerless to amend its final judgment and thereby correct judicial errors after the term at which it was rendered. It may, however, thereafter, upon notice to parties in interest, by order entered nunc pro tunc, amend or correct such judgment, when, by reason of a clerical misprision, it does not speak the truth. (Freeman on Judgments, ch. 4; Church v. English, 81 Ill. 442; Becker v. Sauter, 89 Ill. 596; Tucker v. Hamilton, 108 Ill. 464; Knefel v. People, 187 Ill. 212, 215.)

The judgments and decrees of courts cannot rest in parol or upon so uncertain a foundation as the personal recollections of the judge or any other person, ' and the fact that a judgment was rendered at a former term cannot be determined from the memory of the witnesses or the personal recollections of the judge himself. Where there is no minute or memorial paper in the records of the court to show that judgment was in fact pronounced, it cannot be so entered. (Chicago, B. & Q. R. Co. v. Wingler, 165 Ill. 634, 635, citing Coughran v. Gutcheus, 18 Ill. 390; Dougherty v. People, 118 Ill. 160; Ayer v. City of Chicago, 149 Ill. 262; Chicago, M. & St. P. Ry. Co. v. Walsh, 150 Ill. 607; Tynan v. Weinhard, 153 Ill. 598; Brown v. Hamsmith, 247 Ill. App. 358, 364.)

Amendments should be made from the memoranda of the court, or from the pleadings and record, not from the memory of witnesses testifying ex parte.

Ordinarily these errors and mistakes are apparent from the minutes of the judge, other entries of the same record, or the pleadings and files in the cause; and, in such case, there being something to amend by, courts will not hesitate to make such amendments as will advance justice and sustain the rights of parties. But where there is nothing to amend by, and the court is compelled to learn from the memory of witnesses what its judgment, in fact, was, it may well be doubted whether, upon motion and ex parte proof,' however strong and contradicting the record, an amendment can be made conforming the record of the judgment to such proof. Coughran v. Gutcheus, 18 Ill. 390, 391, 392, 393.

An amendment to a bill of exceptions after the term cannot be made when based only on the judge’s recollection or on ex parte affidavits or testimony. It can only be made where there is some memorandum, minute or note of the judge or something appearing on the records or files of the court to show the facts justifying the amendment. (Coughran v. Gutcheus, 18 Ill. 390; Wallahan v. People, 40 Ill. 102; Goodrich v. City of Minonk, 62 Ill. 121; Heinsen v. Lamb, 117 Ill. 549; People v. Anthony, 129 Ill. 218; Chicago, M. & St. P. Ry. Co. v. Walsh, 150 Ill. 607; Dryer v. People, 188 Ill. 40.) The bill of exceptions shows that there was no lawful basis for the amendment of the record as it contains nothing required by the rule, and the judge certifies that it contains all of the court files, records, memoranda and documents inspected. The record must be taken as originally written, and the question is whether the judgment must be reversed on account of the fact that the bill of exceptions differs from the record by showing that John Brautigam signed the verdict while Charles H. Bingamon was the juror sworn. (People v. Kuhn, 291 Ill. 154, 161.)

Testimony of counsel on a former hearing as to what took place orally before the trial judge, offered for the purpose of explaining an order, is properly excluded where there is nothing unintelligible in the order. (Bell v. Browne, 210 Ill. App. 350.)

The court erred in not striking out the allegations of fact and statements set out in appellee’s affidavit presented with the motion to expunge from the record. The court erred in expunging from the record, the record of the decree of June 11, 1930. The court further erred in trying the cause in November, 1931, solely upon the merits of appellee’s petition for temporary alimony, and at the conclusion of that trial, expunging the record of the decree of June 11, 1930, and at once finding the appellant guilty of contempt, based on the order of April 23, 1930. The court should first have made a new finding upon appellee’s petition for temporary alimony and entered a decree. The court erred in finding that appellant was in arrears in the sum of $665 and committing him for contempt until the amount in arrears was paid, with costs, when the petition under which appellee contends he was being tried alleged appellant was in arrears only the sum of $70. (Mutual Reserve Fund Life Ass’n v. Smith, 77 Ill. App. 259; Higgins v. Higgins, 219 Ill. 146; Lewis v. Lewis, 316 Ill. 447.)

The principle contended for by appellee in this case, that “The rule is of universal force that the order or judgment of a court having jurisdiction is to be obeyed, no matter how clearly it may be erroneous. (People v. Sturtevant, 5 Seld. 263; Sullivan v. Judah, 4 Paige 444; Fennings v. Humphrey, 4 Beav. 1; Chuck v. Cremer, 2 Phill. ch. 112; Richards v. West, 2 Green’s ch. 456, 2 Barb. Ch. 274.) This has often been held, in reference to disobedience to injunctions, as in the cases above, and the principles which govern cases of contempt for a violation of an injunction order are applicable here,” citing Tolman v. Jones, 114 Ill. 147, is no doubt the correct rule, but we hold in this case that the record does not show that there was any rule or decree of any kind in said cause, requiring appellant to pay temporary alimony, and to hold otherwise would be to hold that the hearing and proofs submitted upon November 6, 1931, were in the nature of a “trap,” to draw appellant into a hearing and trial upon a fictitious issue that had no bearing upon the case.

We have given no consideration to the proofs or issue made upon the hearing of November 6, 1931, as to the merits of appellee’s petition for temporary alimony.

For the reasons stated, the decree and order of the circuit court of Fulton county of November 21, 1931, expunging from the records certain proceedings and holding appellant in contempt is reversed.

Reversed,.


text:
    Clark D. Winters, Plaintiff in Error, v. University District Building & Loan Association, Defendant in Error.
    Gen. No. 8,642.
    Heard in this court at the April term, 1932.
    Opinion filed October 17, 1932.
    Charles Troup, for plaintiff in error.
    Little & Finfrock, for defendant in error.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This is an action in trespass on the case for wrong- . fnl interference with ‘1 contract relations. ’i Plaintiff in error alleges in his declaration that on July 26, 1930, plaintiff, being the owner of certain described real estate in Champaign, Illinois, subject to a mortgage owing by plaintiff in ermr-dJL defendant in error. “entered into a written contract with one P. N. Schrumpf, of Greenville, Bond County, Illinois, whereby plaintiff agreed to convey his real estate in Champaign to said Schrumpf subject to a mortgage indebtedness of $9,500 and in consideration thereof, Schrumpf agreed to convey to plaintiff certain farm lands in Bond County, Illinois, subject to a mortgage indebtedness of $1,500, and also agreed to transfer to plaintiff his (Schrumpf’s) interest in an agreement for a warranty deed for certain lots in Greenville, Illinois, subject to payments to" be made on said agreement after August 1, 1930; that afterwards, during July or August, 1930, Schrumpf and his wife came to Champaign, Illinois, where plaintiff resided, for the purpose of performing said contract and conveying and transferring to plaintiff their property and receiving from plaintiff a conveyance for his property in Champaign; that at all times from the making of said' contract until the wrongful interference by defendant as afterwards alleged in the declaration, said Schrumpf was willing and anxious to carry out and perform his part of said contract and to convey and transfer his property to the plaintiff, as provided by the terms of said contract, and^to-receive -a tionvey-ance to himself from plaintiff of pláintiff’s.nropertv: that defendant, by and through its secretary, •well 'khowing of the..,contract so made by plaintiff and Schrumpf. wrongfully,--intentionally and without just cause or excuse, interfered in said contract-relations then existing between plaintiff and said Schrumpf, and" by reason and in consequence of defendant’s action in knowingly, wrongfully, intentionally and without just cause or excuse interfering with said contract^ relations between Schrumpf and plaintiff, said~'Schrumpf was caused to break his contract with plaintiff and caused and induced to fail and refuse to carry out his contract and make the transfers and assignments as therein provided to be done by him, and to receive a deed from plaintiff to himself for plaintiff’s Champaign property according to said contract.

“It was further averred that the property plaintiff would have received from Schrumpf (if it had, not been for the defendant’s wrongful interference at the time when said contract would have been carried out), was worth $6,000.00 more than plaintiff’s property was worth, at the time, and by reason of such wrongful interference by defendant, plaintiff lost $6,000.00.

“It was also alleged that plaintiff at all times exercised care and diligence in attempting to dispose of his Champaign property after defendant’s wrongful interference, but could not do so, and that defendant instituted foreclosure proceedings to foreclose the mortgage on his property and applied for a receiver, and that the equity in his property was of little or no value. ’ ’

Defendant in error filed the general issue to the amended declaration and there was a trial by jury.

The exact contract entered into between plaintiff in error and Schrumpf was as follows:

“Contract for the Exchange of Property
“This agreement made this twenty-sixth day of July, A. D. 1930, by and between Peter N. Schrumpf and wife of Greenville, Bond county, Illinois, of one part, and Clark D. Winters, of Champaign, Illinois, party of the second part, witnesseth:—
“That the said Clark D. Winters and Peter N. Schrumpf have this day made and herein enter into a contract for an exchange of property, viz.: the said Clark D. Winters agrees to convey, to the said Peter IsT. Schrumpf, lot five (5), block twelve (12) J. R. Scott’s Sub-division to the city of Champaign in Champaign County, Illinois, and numbered 203 E Green street, subject to a balance due on a mortgage to the University Building and Loan Association at Champaign, Illinois, in the original sum of nine thousand five hundred dollars ($9,500) and in consideration thereof, the said Peter N. Schrumpf, agrees to convey his interest in the south twenty-seven fortieth (27-40) of the southwest quarter of the northeast quarter and the north three-fourths (%) of the northwest quarter of the southeast quarter of section twenty-eight (28), township seven (7) north, range two (2) west of the third principal meridian, Bond county, Illinois, subject to a balance due on a mortgage to Clara Reed Ellis in the principal sum of fifteen hundred dollars ($1,500); also his equity in the agreement for a warranty deed in lots numbers, one, ten and eleven in Rutschman’s Addition to the city of Green-ville as per plat of said division with one E. R. De-Moulin, which agreement for warranty deed is dated-the twenty-first day of May, A. D. 1930 and subject to all payments due on said agreement subsequent to August 1, 1930.
“In witness whereof the parties have hereunto set their hands and seals this twenty-sixth day of July, A. D. .1930.
P. N. Schrumpp (Seal)
Clark D. Winters (Seal)”

This contract is somewhat informal in not fixing any time, place or manner of carrying out its terms and provisions. According to the proofs, Schrumpf and his wife came to Champaign three times during the month following the execution of the contract, but plaintiff in error had a severe illness and could not be seen. On the third trip to Champaign, not being able to see plaintiff in error, on someone’s suggestion they went to see Burford, secretary of defendant in error. At this time defendant in error held a mortgage upon plaintiff in error’s Champaign property, which originally had been $10,500, but by payments the debt had been reduced to somewhat under $9,500; but plaintiff in error had gotten behind in payments and taxes were unpaid, so that the total indebtedness was above $9,500. There had been some talk of a new loan of $9,500 to help plaintiff in error get straightened around, but nothing definite had been determined.

Just what took place when the Schrumpfs visited Burford is better recited in plaintiff in error’s abstracting of their testimony. Mrs. Schrumpf testified as follows: The last time we came up we had a talk with Burford about it and he told us he was afraid we couldn’t carry the loan with the family we had, and he told us that property had depreciated in value and he also asked us for double security and wanted us to give bank references and my husband told him we wouldn’t give double security for that was something we had never done; he had always taken care of his own business and he wouldn’t ask for double security, but the bank references we could give them. Nothing further was said that I remember.

By double security I mean he wanted us to see that the payments were made a year in advance;that’s the way we understood it. Suppose building and loan association was going to make mortgage; don’t think it was mentioned about Mr. Schrumpf and I making new papers and they would make the loan. Don’t remember it being mentioned at all. Not sure about that; don’t think that was ever mentioned; just traded equity for equity and we were to take over Mr. Winters’ mortgage as he had it. Don’t remember just exactly what was the size of the mortgage; don’t remember that Mr. Burford said anything about how much we were to pay in dollars and cents each month but Mr. Winters had told us the payments; don’t remember that anything was said about $9,500. After that we didn’t do anything at all.

Peter Schrumpf testified: Went to the• office of the University District Building and Loan Association on that trip. Wife was with me; had conversation with Mr. Burford at that place. We told Mr. Burford at that time we had made this contract to exchange properties with Mr. Winters. He told me that I was a stranger to him and he would want bank references and extra .or double security. He would want bank references and double security. He told me he was a little afraid I couldn’t make it with so large a family as I had, keeping roomers and that’s about all that was said. That is really just about all that was said, only I told him I wouldn’t give extra security, that is, if I couldn’t trade without that, I wouldn’t trade.

In this conversation with Mr. Burford can’t remember that we said-anything how he was going to make the loans or anything; don’t remember distinctly just the language used word for word; don’t remember Mr. Burford saying so far as you making the trade was concerned, the building and loan association couldn’t prevent it; don’t remember that he did say it; if he said it, I don’t remember. There wasn’t any loan to be made, I don’t think. The way I understand it, the property should stand good for it. We were supposed to pay, make monthly payments on a $9,500 loan, I think it was; I ain’t sure; don’t remember how much we were to pay a month not exactly; was in the neighborhood of a hundred a month, something like that. After this time Mr. Winters was down to my place to see why I didn’t come up and trade; that was in the spring of 1931; was planting corn; don’t know how long it was after contract was made; probably be eight or nine months after last trip up here. He asked me what was the matter that I didn’t come up and I told him I had plumb give it up, I had got disgusted with the deal and had sold this town property during that time. That wasn’t all I said to him; told bim just naturally looked too hard for me after I went to the building and loan and seemed like they was going to tie me up and wanted me to give extra security and that was something I wouldn’t do and I just went home; didn’t tell him in that conversation that I was going to sue him; didn’t contemplate bringing suit against him and making him go through with it. After I left the building and loan, I was disgusted with the trade and dropped it; that was the end of it. I never thought any more about it; didn’t talk to anybody else besides Burford when I was up here about this trade; did talk to Mr. Winters’ brother. He said his brother wasn’t able to take care of it. He doubted very much if we could trade. He told us to go see the building and loan what they had to say about it and that is what we done. The reason I didn’t press the matter any further wasn’t because made up my mind it wasn’t a good trade for me, — just made up my mind it was a little too hard for me; wasn’t going to give any extra security, anything like that. Before I would do that I wouldn’t trade. That was all that kept me from trading. I wasn’t going to ask anybody to go my security; didn’t feel that it was too big a load to take on; that wasn’t reason didn’t trade.

Plaintiff in error testified: I lived in 203 East Green Street, Champaign, until September 1, 1931. University District Building & Loan Association held a $10,500 mortgage on property when I went to paying on it. It was taken out in 1927, I think; paid on it up to April, 1930; monthly payments were $113.75; hadn’t paid taxes for the year 1930; were other taxes besides those due on it, special assessments. In July, 1930, there was due for taxes about $600. At that time was back on dues from April; there were two payments back. It was in the neighborhood of a month after I came back from Greenville before I got out and tried to do anything; then went down to University District Building & Loan Association. Mr. Burford called me and wanted me to come down and I went down; had a conversation with him. He asked me if I had done anything in regard to putting this $9,500 loan through and if I had raised the taxes. Previous to time of making contract with Schrumpf had made application to the University District Building .& Loan Association to make my loan of $9,500. At time I made this application owed about $8,500 on old loan, or along there; wasn’t getting difference between that and $9,500. They told me they would apply that on keeping up payments on property. They would apply that on past dues that had not been paid, and also on future dues up to the 1st of last December. They would pay it up until then. When I went down to Building & Loan Association I said something about was trying to get shut of the property. Mr. Burford told me, he says, “I blocked that Greenville deal,” and I says, “What was that for?” and he says, “I don’t think you would have been satisfied down there and I don’t think they would have been satisfied here.” Well, I says, “We don’t know about that, because we didn’t try it.” He says, “I don’t think much of property in Greenville and neither do I think much of the land about there.” That was about the substance of that conversation in regard to that; had conversation with him subsequent to that; last one I had with him was in April of this year; said he was going to foreclose; asked if my boys were coming to my rescue. I says, “no, sir, there is nobody going to help me in this deal, I am alone,” and he says, “we will have to foreclose.” -1 says, “well, I suppose that is what you will have to do.” Every time I would talk to him that is what- he would tell me. He said, “I am going to tell you. if you trade that property, we have got to approve of what you get.” He says, “we will have to be satisfied.” He says, “we will not accept any Missouri land nor southern Illinois land nor Hutsonville property nor any Ohio land”; that the building and loan would not allow me to trade for any of that kind of stuff. That was last conversation I had with him. That was in April; continued to live in that property until 1st of September; suppose it was receiver we surrendered possession to. There was three or four of them talked to me about it; said there was a receiver. After Bur-ford told me he had blocked the deal, Schrumpfs never came up to Champaign again after that.

There was soime testimony by plaintiff in error that in July, 1930, the Champaign property was worth about $10,000. Plaintiff in error was permitted to remain in the property until September 1, 1931, when foreclosure was started and a receiver appointed. Plaintiff in error’s wife had died in 1927.

Defendant in error offered no proofs. Plaintiff in error never had a deed prepared and presented to Schrumpf and demanded that the contract be carried out.

The court instructed the jury to find a verdict for defendant in error and a verdict and judgment was found and entered against plaintiff in error. Plaintiff in error has assigned error upon this finding.

Plaintiff in error complains because his witness Peter Schrumpf was permitted to testify: “He said his brother wasn’t able to take care of it,” speaking of a conversation with plaintiff in error’s brother. There was no objection to the testimony nor motion to strike it out. It cannot be said in this case that defendant in error was a stranger to the property in question. It had a mortgage upon the property for substantially its entire value and upon this mortgage plaintiff in error had made default, not only in the payments to be made of principal and interest, but in the payment of taxes. Defendant in error assumably could foreclose at any time, as it did foreclose, and upon default and foreclosure assumably it could have had a receiver appointed and take possession of the property, as it did have a receiver appointed and take possession of the property in September, 1931. Defendant in error may have been willing that plaintiff in error remain upon the property and keep it in possession and under his care while in default in his payments, and yet defendant in error might have been opposed to some third person, Schrumpf or otherwise, to move into the premises, who may hot have been fitted, personally or financially, to meet the payments or to manage property of that nature and defendant in error, in what he did and said in regard to the occupancy of the property and the payment of the taxes and mortgage payments, was within his rights. Eliminating all technical defenses in this case, the law applicable to the facts is laid down in Doremus v. Hennessy, 62 Ill. App. 391; Doremus v. Hennessy, 176 Ill. 608; London Guarantee & Accident Co. v. Horn, 206 Ill. 493; Carpenters’ Union v. Citizens Committee to Enforce the Landis Award, 333 Ill. 225; Milliken v. Hildebrand, 234 Ill. App. 276. Not all of these cases are for interference with contracts, but the rule is the same. In Milliken v. Hildebrand, supra, the authority is cited:

“ ‘By the weight of authority, where, as an incident to the exercise of an absolute right by an individual, the breach of a contract between third persons results, no liability attaches by reason thereof to the person exercising such right. On the other hand, if a qualified right is maliciously exercised for the purpose of causing the breach of contract between third persons, and it has this effect, liability for the injury resulting from the breach of contract thus brought about will attach to the.person exercising the right. The criterion as to whether a right is absolute or qualified is pointed out in a note in 29 L. R. A. (N. S.) 869.’ Wheeler-Stenzel Co. v. American Window Glass Co., 202 Mass. 471, L. R. A. 1915 F 1076 note.
“It appears from the declaration that Hildebrand was not the owner of the land, he simply had a contract for a conveyance from the owners. This contract was subject to assignment, but Milliken did not see fit to take an assignment. He entered into a contract of sale with Hildebrand, which contract did not even refer to the contract between Hildebrand and the owners, and did not make any provision for Hildebrand to carry out his contract with the owners.” And in London Guarantee & Accident Co. v. Horn, supra, the court, citing (page 504) Quinn v. Leathem, App. Cas. of 1901, p. 495, (decided by the House of Lords,) said: “In Quinn v. Leathern, supra, it was said: ‘It is a violation of legal right to interfere with contractual relations recognized by law if there be no sufficient justification for the interference. ’ ” In the dissenting opinion of Justices Cartwright and Wilkin, in the Horn case, upon the facts, they cite Perkins v. Pendleton, 90 Me. 166, and quote:
“In Perkins v. Pendleton, 90 Me. 258 (decided in 1897), the Vermont case, supra, was cited for that part of the opinion which says: ‘The authorities cited for the plaintiff clearly established that if the defendant, without having any lawful right, or by an act or threat aliunde the exercise of a lawful right, had broken up the contract relations between the plaintiff and Libersont maliciously and unlawfully, although such relations could be terminated at the pleasure of either, and the damage had thereby been occasioned, the party damaged could have maintained an action against the defendant therefor.’ But it is also said: ‘We think that the important question in a case of this kind is as to the nature of the defendant’s act and the means adopted by him to accomplish his purpose. Merely to induce another to leave an employment or to discharge an employee by persuasion or argument, however whimsical, unreasonable or absurd, is not, in and of itself, unlawful, and we do not decide that such interference may become unlawful by reason of the defendant’s malicious motives, but simply that to intimidate by threats, if the threats are of such a character as to produce this result, and thereby cause him to discharge an employee whom he desires to retain and would have retained except for such unlawful threats, is an actionable wrong. Nor do we differ from the recent decision of the Vermont court in the case above referred to, which holds that a threat to do what the defendant had a right to do would not be such a one as to make the defendant liable in an action of this kind.’ . . . It was held in Raycroft v. Tayntor, 68 Vt. 219, that ‘if one, in the exercise of a lawful right, threatens to terminate a contract between himself and another unless the latter discharges his employee not engaged for any definite time, the discharged employee has no right of action for damages against the party making the threat, although his motive in procuring the discharge may have been inspired by malice. ’ In that case the defendant was the manager and superintendent of a granite quarry. One Libersont obtained from him leave to go into the quarry and cut the poorer granite into paving stones by paying an agreed price therefor. The contract was for no definite time. He expected to continue the work through the winter. The plaintiff was employed by the latter in the work of cutting the paving stones. While so employed a disagreement arose between him and the defendant about matters having no connection with the quarry or his employment by Libersont. The defendant becoming angry, ordered the plaintiff to leave the premises and threatened to have him discharged. He afterwards went to Libersont and told him that if he did not discharge the plaintiff he could no longer cut paving blocks on the premises. Libersont informed him of his arrangement with the plaintiff; that he was satisfactory to him and he did not want to discharge him, but the defendant insisted that he must be discharged or that Libersont should leave the works, and thereupon the latter did discharge him solely because of that demand. The plaintiff showed that he suffered loss by reason of such discharge and recovered a judgment in the trial court, but the Supreme Court reversed it on the ground that the defendant’s demand for the plaintiff’s discharge was but a threat to exercise a legal right, — that is, the right to terminate his agreement with Libersont whenever he chose to do so. That decision seems to be supported by the authorities referred to in the opinion, and none are cited or to be found to the contrary.”

The “gist” of all these cases is that defendant in error has the right to look after all of its interests in the property in question and protect its rights willfully and conclusively, and if defendant in error, while engaged lawfully and legally within its legal rights, even with malice interferes with the contracts and combinations of others, it is not actionable.

Again quoting from the Horn case (206 Ill. 493, 510): “On that subject Mr. Justice Cooley says: ‘Bad motive, by itself, then, is no tort. Malicious motives make a bad act worse, but they cannot make that a wrong which in its own essence is lawful. ’ He illustrates the rule by the case of Mahan v. Brown, 13 Wend. 261, and then says: ‘So it has been held that no action would lie for maliciously conspiring, as insurance officers to refuse insurance on the plaintiff’s property; or for maliciously collecting the notes of a bank and presenting them for redemption; or for maliciously adopting a trade-mark to the prejudice of a plaintiff who has no exclusive right to appropriate it; or for throwing open one’s land to the public so that they may pass over it, thereby avoiding a toll gate; or for maliciously throwing down fences put up through one’s land to mark the lines of a road which has never lawfully been laid out.’ (Cooley on Torts, 690.) One may sue his debtor from no motive but ill-will, and yet if there is a legal cause of action there could be no liability for bringing the suit. It will be manifest from these examples that immunity from liability for the exercise of a legal right does not rest alone upon the right of competition in trade, but is founded upon the truism ‘that the exercise by one man of his legal right cannot be a legal wrong to another. ’ (Cooley onTorts, 688.) To justify a recovery there must be a legal wrong as well as damage.”

Taking all of the facts of this case into consideration, defendant in error was absolutely within its legal rights in discouraging Schrumpf from trading for the property. Plaintiff in error had no interest in the property, or so little it could be used only as a decoy for the unwary. Defendant in error did not have to stand by and suffer anyone to be “fleeced” whom it knew it would not permit to enter into possession. In all the proofs we do not find that defendant in error did anything it did not have a legal and lawful right to do, and the circuit court of Champaign county did not err in instructing the jury to find a verdict for defendant in error and entering judgment. Accordingly, the judgment is affirmed.

Affirmed.


text:
    R. L. Cutler, as Guardian of Caroleen Elizabeth Jenkins et al., Minors, Appellee, v. Reon D. Hicks et al., Defendants. Clifford W. Warner, as Receiver for Huston Banking Company, Appellant.
    Gen. No. 8,648.

      Heard in this court at the April term, 1932.
    Opinion filed October 17, 1932.
    Downing & Helfrich, for appellant.
    Walker & O’Harra, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

The appellee, it. L. Cutler, as guardian of Caroleen Elizabeth Jenkins, Lillian Blanche Jenkins and Iris Josephine Jenkins, minors, filed his bill to the June term, 1931, of the circuit court of Hancock connty, Illinois, to set aside, as made in fraud of creditors, two deeds executed by Reon D. Hicks and wife, Helen E. Hicks, to Pearl J. Fox.

The bill alleged the recovery of a judgment on May 2,1931, by the appellee against Hicks for $2,463.56 on indebtedness which had been owing prior to the making of the deeds, the issuance of an execution which was then in the hands of the sheriff, the making and wording of a quitclaim deed by Hicks and wife to Pearl J. Fox for 240 acres of land, in which Hicks had a contingent remainder at the time; that said deed was invalid because not sufficient to pass a contingent remainder; that the contingent remainder became vested by the death of a life tenant on March 9, 1931, and that Hicks thereupon became seized of an undivided one-third interest in the 240 acres of land; further alleged the making by Hicks and wife to Mrs. Fox and recording on March 25, 1931, of a warranty deed for this undivided one-third interest; that both of said deeds were made with intent to defraud the complainant and other creditors of Hicks and for the purpose of preventing a levy and sale by virtue of executions; that Hicks was heavily indebted, did not retain sufficient property to pay his creditors; that the conveyance was upon a secret trust and no consideration paid therefor, or if any consideration, not sufficient to constitute the deeds bona fide transactions; and that the judgment was in full force and effect.

The bill further alleged the recovery of a judgment by Clifford W. Warner as receiver of the Huston Banking Company, the appellant, for $15,2_65.32 on April 4, 1931, against said Hicks.

The bill prayed that the said deeds be set aside and removed out of the way of complainant’s execution and declared null and void as to creditors and the appellee authorized to proceed under his execution and the sheriff directed to levy and advertise and sell said undivided one-third interest in said real estate in satisfaction of appellee’s judgment; further prayed that it be decreed that appellee have a superior lien upon the proceeds of sale when the property was sold.

Hicks, Ms wife, Mrs. Fox and Warner as receiver were made defendants and all personally served with process to the June term, 1931.

At the June term, 1931, before any further pleadings were filed, a stipulation was entered into by all of the parties, reciting the mating of the deeds, the recovery of both judgments, the filing of the bill to set aside said deeds, the claim by Cutler that he had procured a first lien by filing a bill, and that it was claimed by Hicks and Mrs. Fox that he was indebted to her for $1,000 and interest. After such recitals, the stipulation agreed that said two deeds be set aside and declared of no force and effect except as creating a lien for Mrs. Fox to the extent of $1,000 and interest; that said deeds be removed out of the way of executions as having been made in fraud of creditors of said Hicks and with intent to Mnder, delay and defraud creditors; that Mrs. Fox have a first lien for $1,000 and interest; that the costs of the suit be a second lien; “that the said judgments of the said Warner as receiver and the said Cutler as guardian are liens upon said undivided one-third interest in said real estate”; “that the question as to priority of the lien of said two judgments shall be determined by the court in said chancery case now pending, or in some other suit or proceeding as may be agreed upon by the attorneys for said two judgment creditors, and this agreement and stipulation shall in no way prejudice or affect the rights of either of said judgment creditors, except that in determimng the priorities, whether in said pending -suit or in some other, suit, their rights shall be considered the same as if the said deed had been set aside as in fraud of creditors and made for the purpose of hindering, delaying and defrauding creditors in the said pending suit instituted by the said Cutler as guardian.” The stipulation stated that a partition suit involving this and other real estate was pending in McDonough county and that if the property was sold in that suit one-third of the proceeds of sale, after paying Mrs. Fox $1,000 and interest, should stand in the place of the land and be held by the master to await the determination of the priorities,

The defendant Warner, as receiver of the Huston Banking Company, in October, 1931, answered the bill, admitting or denying the allegations of the bill, and set up in his answer as an affirmative defense the matters, as follows: This defendant further answering states that the Huston Banking Company is a banking corporation, which for more than 20 years last past has conducted a banking business at Blandinsville, Illinois; that said bank was closed by the auditor of this State on the 26th day of December, 1930, and this defendant appointed receiver by said auditor, which appointment has been confirmed by this court, and this defendant is, under and by virtue of said appointment and confirmation, the duly appointed, qualified and acting receiver for Huston Banking Company, which is now in the process of liquidation under said receivership ; that the complainant, R. L. Cutler, is and has been for more than 12 years last past, president and director of Huston Banking Company, and during that time until said bank was closed, as aforesaid, was actively engaged as such officer and employee of said bank in conducting the business and affairs of said bank, by reason whereof a relation of trust and confidence existed between him and said bank and its depositors, and it was his duty as such officer and employee to refrain from doing any act or thing wherein his personal interests conflicted with the interests of said bank.

This defendant further answering states that both of the judgments mentioned in said bill of complaint— the $15,265.32 judgment entered April 2,1931, in favor of this defendant and the judgment for $2,463.26 entered May 2,1931, in favor of complainant — were each for money originally obtained by B. L. Cutler for said Hicks from the Huston Banking Company while said Cutler was president and director of said bank and while he was guardian for said wards.

The said judgment in favor of this defendant included money due to the Huston Banking Company from Beon D. Hicks, on a number of notes, including the $5,500 note which was originally given by said Hicks as a part of the purchase price of a farm in Henderson county, known as the “Britt Farm,” which J. E. Huston and B. L. Cutler owned in their own right; that at the time of such purchase said J. E. Huston was president of the Huston Banking Company and B. L. Cutler was assistant cashier of the same, and Beon D. Hicks had on deposit in said bank the sum of $35,000 in cash, and the said J. E. Huston and B. L. Cutler then and there induced, advised and persuaded the said Beon D. Hicks to withdraw the said $35,000 from said bank with which to purchase said Britt Farm from them, and in response to their solicitations the said Beon D. Hicks did withdraw the said $35,000 from said bank and paid it to the said J. E. Huston and B. L. Cutler, and gave his additional obligation for a total amount of $70,000 as the purchase price of said farm, and thereupon the said J. E. Huston and B. L. Cutler conveyed the said Britt Farm to the said Beon D. Hicks, whereby the said Beon D. Hicks was then and there rendered insolvent, and by reason whereof ever since that time has been and now is insolvent; and in said transaction the said J. E. Huston and B. L. Cutler received a large profit, to wit, the sum of $12,000.

And this defendant further answering states, that a note for $5,500 was given by said Hicks payable to the order of said Huston as a part of the purchase price of said Britt Farm, and which said $5,500 note was taken in the name of J. E. Huston and afterwards transferred by him to Huston Banking Company, and the $5,500 note included in said judgment in favor of this defendant, represents the same indebtedness as the original $5,500 note given as a part of the purchase price of said land.

And this defendant alleges that the note on which judgment was taken in favor of the complainant mentioned in said bill of complaint, was for money obtained by Cutler for Hicks from said Huston Banking Company when Hicks was known by Cutler to be insolvent, in violation of Cutler’s duty as an officer and employee of said bank, and said note was originally given by said Hicks tó Huston Banking Company, but the same was afterwards indorsed in blank by the cashier of said bank and delivered to said Cutler, and said Cutler thereupon in violation of his duty as an officer and employee of said bank and in violation of his duty as such guardian, withdrew from said bank $2,500 which he had on deposit in said bank as guardian of said wards. And this defendant states that said Cutler was not authorized by law nor by any order of any court to invest the money of said wards in said note, but did the same in violation of his duty and trust as such guardian, whereby he became personally liable to the said wards for the said $2,500 of their money so misused and invested, and he and his sureties on his bond as such guardian, are now and were at the time of the commencement of this suit, liable to said wards for the amount so placed in said note of said Hicks.

This defendant further answering states that during all of the time aforesaid, the said Cutler was an officer of said bank, and from February 26, 1926, the said Cutler was an officer and employee of said bank and guardian of said wards, and as such a confidential relationship existed between him and said bank and between him and said wards, and during all of that time said Cutler had full knowledge of all the matters and things above set forth.

And this defendant alleges that at the time said bill of complaint was filed herein, the said R. L. Cutler had full knowledge of all the facts above set forth, and it was his duty as president of Huston Banking Company, to file said bill or to have this defendant file said bill, not only in behalf of the complainant as guardian but also in behalf of this defendant, so that such suit would inure to the benefit of this defendant or to the benefit of this defendant and the wards of complainant.

And this defendant states that it would be contrary to equity and good conscience for this court to decree that the complainant by the filing of his bill herein obtained a preference over the Huston Banking Company, or that the judgment of complainant was made a prior lien over the judgment of this defendant by the filing of the bill of complaint herein, and this defendant states that the filing of said bill was for the personal benefit of R. L. Cutler individually, and to prevent him or his bondsmen being held personally liable to said wards for the said $2,500 so used by him as aforesaid, and not for the purpose of securing assets for the benefit of the creditors of Reon D. Hicks, or as the result of superior vigilance on the part of complainant, and that the complainant does not come into this court with clean hands whereby he is now in a position to ask the aid of this court in establishing a lien in favor of the complainant to be paid out of the proceeds of the sale of said real estate, before any amount thereof is paid to this defendant.

All which matters and things this defendant is ready and willing to aver, maintain and prove as this honorable court shall direct, and prays to be hence dismissed with his reasonable costs and charges in this behalf most wrongfully sustained.

Exceptions were filed to parts of appellant Warner’s answer, and as these exceptions constitute the main issue in this case, we produce them entirely:

“Exceptions taken by said complainant to parts of the answer of the defendant, Clifford W. Warner, receiver for the Huston Banking Company, to the bill of complaint in said cause for scandal and impertinence.
“1. For that part of said answer reading as follows:
“ (a) This defendant further answering states that the Huston Banking Company is a Banking Corporation, which for more than 20 years last past has conducted a Banking business at Blandinsville, Illinois; that said Bank was closed by the Auditor of this State on the 26th day of December, 1930, and this defendant appointed Receiver by said Auditor, which appointment has been confirmed by this Court, and this defendant is, under and by virtue of said appointment and confirmation, the duly appointed, qualified and acting Receiver for Huston Banking Company, which is now in the process of liquidation under said Receivership. That the complainant, R. L. Cutler, is and has been for more than 12 years last past, President and Director of Huston Banking Company and during that time until said Bank was closed as aforesaid, was actively engaged as such Officer and employee of said Bank in conducting the business and affairs of said Bank, by reason whereof a relation of trust and confidence existed between him and said Bank and its depositors, and it was his duty as such officer and employee to refrain from doing any act or thing wherein his personal interests conflicted with the interests of said Bank.
“ (b) This defendant further answering states that both of the judgments mentioned in said bill of complaint the $15,265.32 judgment entered April 2, 1931, in favor of this defendant, and the judgment for $2,463.26 entered May 2, 1931, in favor of complainant, were each for money originally obtained by R. L. Cutler for said Hieks from the Huston Banking Company while said Cutler was President and Director of said Bank and while he was Guardian for said wards.
“(c) The said judgment in favor of this defendant included money due to the Huston Banking Company from Reon D. Hicks, on a number of notes, including the $5,500.00 note which was originally given by said Hicks as a part of the purchase price of a farm in Henderson County, known as the “Britt Farm,” which J. E. Huston and R. L. Cutler owned in their own right; that at the time of such purchase said J. E. Huston was President of the Huston Banking Company and R. L. Cutler was Assistant Cashier of the same, and Reon D. Hicks had on deposit in said Bank the sum of Thirty-five Thousand Dollars ($35,000.00) in cash, and the said J. E.. Huston and R. L. Cutler then and there induced, advised and persuaded the said Reon D. Hicks to withdraw the said $35,000.00 from said Bank with which to purchase the said Britt Farm from them and in response to their solicitations the said Reon D. Hicks did withdraw the said $35,000.00 from said Bank and paid it to the said J. E. Huston and R. L. Cutler, and gave his additional obligation, for a total amount of $70,000.00 as the purchase price of said farm, and thereupon the said J. E. Huston and R. L. Cutler conveyed the said Britt Farm to the said Reon D. Hicks, whereby the said Reon D. Hicks was then and there rendered insolvent, and by reason whereof ever since that time has been and now is insolvent; and in said transaction the said J. E. Huston and R. L. Cutler received a large profit, to wit, the sum of $12,000.00.
“(d) And this defendant further answering states that a note for $5,500.00 was given by said Hicks payable to the order of said Huston as a part of the purchase price . of said Britt Farm, and which said $5,500.00 note was taken in the name of J. E. Huston and afterwards transferred by him to Huston Banking Company, and the $5,500.00 note included in said judgment in favor of this defendant represents the same indebtedness as the original $5,500.00 note given as part of the purchase price of said land.
“(e) And this defendant alleges that the note on which the judgment was taken in favor of the complainant mentioned in said bill of complaint, was for money obtained by Cutler from Hicks from said Hus^ ton Banking Company when Hicks was known by Cutler to be insolvent, in violation of Cutler’s duty as an officer and employee of said Bank, and said note was originally given by said Hicks to Huston Banking Company but the same was afterwards indorsed in blank by the Cashier of said Bank and delivered to said Cutler, and said Cutler thereupon in violation of his duty as an officer and employee of- said Bank and in violation of his duty as such Guardian, withdrew from said Bank $2,500.00 which he had on deposit in said Bank as Guardian of said wards. And this defendant states that said Cutler was not authorized by law nor by any order of any court to invest the money of said wards in said note, but did the same in violation of his duty and trust as such Guardian, whereby he became personally liable to the said wards for the said $2,500.00 of. their money so mis-used and invested, and he and his sureties on his bond as such Guardian, are now and were at the time of the commencement of this suit, liable to said wards for the amount so placed in said note of said Hicks.
“(f) TMs defendant further answering states that during all of the time aforesaid the said Cutler was an officer of said Bank, and from February 26, 1926, the said Cutler was an officer and employee of said Bank and Guardian of said wards, and as such a confidential relationship existed between him and said Bank and between him and said wards, and during all of that time said Cutler had full knowledge of all the matters and things above set forth.
“(g) This defendant alleges that at the time said bill of complaint was filed herein, the said B. L. Cutler had full knowledge of all the facts above set forth, and it was his duty as President of Huston Banking Company, to file said bill or to have this defendant file said bill, not only in behalf of the complainant as Guardian but also in behalf of this defendant, so that such suit would inure to the benefit of this defendant or to the benefit of this defendant and the wards of complainant.
“(h) And this defendant states that it would be contrary to equity and good conscience for this court to decree that the complainant, by the filing of his bill herein, obtained a preference over the Huston Banking Company, or that the judgment of complainant was made a prior lien over the judgment of this defendant by the filing of the bill of complaint herein, and this defendant states that the filing of said bill was for the personal benefit of B. L. Cutler individually, and to prevent him or his bondsmen being held personally liable to said wards for the said $2,500.00 so used by him as aforesaid, and not for the purpose of securing assets for the benefit of the creditors of Beon D. Hicks, or as the result of superior vigilance on the part of complainant, and that the complainant does not come into this court with clean hands whereby he is now in a position to ask the aid of this court in establishing a lien in favor of the complainant to be paid out of the'proceeds of the sale of said real estate, before any amount thereof is paid to this defendant” is impertinent in that the said part of the said answer presents no defense to the bill of complaint filed in the above entitled cause and is wholly immaterial with ■ reference to the matters alleged in the bill of complaint.

Other grounds for the exceptions were set out, which will be covered as the exceptions are discussed, and generally charged that the matters were impertinent and scandalous and did not constitute a defense to the matters set up in the bill of complaint and that other allegations in the answer were mere legal conclusions.

The court sustained appellee’s exceptions to the matters set out in appellant’s answer and excepted to, and there was a decree for appellee, from which appellant has brought the record to this court for review.

It is contended by appellant that he who comes into a court of equity must come with clean hands, which is elementary: (Williams v. Dutton, 184 Ill. 608; 1 Pomeroy’s Eq. Jurisprudence, 3rd edition, page 656, section 397; 10 R. C. L. page 389, sec. 139; 21 G. J., page 184, sec. 165), and that equity will not lend its aid to a complainant unless even handed justice and good conscience demand that the relief prayed for should be granted. Williams v. Dutton, 184 Ill. 608, and as said by Mr. Justice Cartwright in Williams v. Dutton, supra: “The established rule of equity is that it will not lend its aid to the complainant unless even handed justice and good conscience demand that the relief should be granted.”

It is also contended by appellee that appellant, by procuring a judgment and having an execution issued thereon, did not acquire any lien upon the land. Neither did appellee acquire a lien by his judgment and execution. If, prior to the filing of the bill by appellee to set aside the fraudulent conveyance, Mrs. Fox, the grantee in the deeds, had conveyed the property to a bona fide purchaser, that purchaser would have acquired a good title as against both judgments. (Rappleye v. International Bank, 93 Ill. 396; Lyon v. Robbins, 46 Ill. 276, 279; Hallorn v. Trum, 125 Ill. 247, 252; Union Nat. Bank v. Lane, 177 Ill. 171, 174; Davidson v. Burke, 143 Ill. 139, 149.) And appellee further contends that by filing the bill to set aside the fraudulent conveyances and the service of process in that case, appellee acquired an equitable lien upon the one-third interest in the 240 acres of land. It was the first lien acquired, by either appellant or appellee, and is therefore to be first paid. (Union Nat. Bank v. Lane, 177 Ill. 171, 177; Ballentine v. Beall, 3 Scam. [4 Ill.] 203, 204; Hallorn v. Trum, 125 Ill. 247, 253; Davidson v. Burke, 143 Ill. 139, 149; Lingle v. Clear Creek Drainage & Levee Dist., 281 Ill. 511, 520.)

As to the facts set forth in the answer and excepted to, the answer avers that the Huston Banking Company ceased business on December 26, 1930; that appellee had been a president and director for more than 12 years, — how many years more than 12 the answer does not say; that the farm was sold to Hicks while J. E. Huston was president and appellee an assistant cashier of the bank. It is not reasonable to presume that appellee was promoted from assistant cashier directly to the office of president, and from the allegations in the answer, Hicks may have and likely did purchase the farm 15, 18 or 20 years prior to the closing of the bank. It is averred that Huston and Cutler made a profit on this sale of $12,000. Nothing in the answer states how many acres were in the farm or its or their value. It is common knowledge and general information that after 1917 and 1918, in Illinois, all farm lands largely increased in value, and the allegations in the answer, on the fact stated that “Whereby the said Reon D. Hicks was then and there rendered insolvent and by reason whereof ever since that time has been and now is insolvent,” is a pure conclusion and is not warranted by any of the facts pleaded. The fact that $5,500 of the indebtedness, in the defunct bank, grew out of a note given by Hicks to J. E. Huston, sometime between 1912 and 1918 and was part of Huston’s interest in the lands sold, can in no manner color the conduct of appellee in his connection with the bank. The sale of the land by Huston and appellee to Hicks, whenever it did occur, was not illegal or unlawful or even immoral, and in no manner transgressed the highest ethics of banking, so far as it affected the bank.

It is further alleged in the answer, and excepted to, that both of the judgments mentioned in the bill of complaint, the $15,265.32 judgment entered April 2, 1931, in favor of appellant, receiver, and the judgment for $2,463.26 entered May 2, 1931, in favor of appellee, “were each for money originally obtained by appellee, R. L. Cutler, for 'said Hicks from the Huston Banking Company, while said appellee Cutler was president and director of said bank and while he was guardian of said wards,” the imputation apparently being that appellee may have stolen the money, or made the loans to one notoriously insolvent, yet, no fact is averred or set out indicating but that .these loans, when made, were good loans, bankable loans and such paper as all of the banks were anxious to get from 1917 and 1918, to 1929. In fact, the $5,500 note and most of appellant’s judgment for $15,265.32 seem to be made up from notes secured by mortgage on these same lands sold, because the answer states: “The said judgment in favor of this defendant (appellant), included money due to the Huston Banking Company from Reon D. Hicks on a number of notes, including the $5,500 note which was originally given by said Hicks as a part of the purchase price of a farm in Henderson County, known as the ‘Britt Farm,’ which J. E. Huston and R. L. Cutler owned in their own right”; etc. The farm was purchased, as the briefs allege and it is not disputed, for $70,000, of which $35,000 was paid in cash and the balance of $35,000 secured back by notes and a purchase money mortgage. These notes, placed in the bank any time from 1917 to 1929, could not be presumed to be other than gilt edge security, not knowing the number of acres in the farm or the value of the land. Huston and Cutler, of course, if they placed any of these notes in the bank, were using the bank to aid their private enterprise, but it must be presumed that the board of directors passed on all these securities without Huston or appellee having any voice or vote. If so, it was a perfectly lawful transaction. The answer avers nothing to the contrary. As to the $5,500 note, appellee could not have secured these funds for Hicks, because in another part of the answer it is averred that this note was given “by said Hicks payable to the order of said Huston as a part of the purchase price of said ‘Britt Farm,’ and which said $5,500 note was taken in the name of J. E. Huston and afterwards transferred by him to the Huston Banking Company. ’ ’

Nothing unlawful is shown to have been done or to have grown out of this farm transaction. Hicks never complained about it and without doubt, since 1929, in common with humanity, he has found himself “broke.” As to the Hicks note of $2,463.26, taken out of the bank by appellee, nothing in the answer shows when this note was given or when appellee obtained these funds for Hicks, whether the note was good or bad, and regardless of whether anyone — -possibly appellee —was negligent in mailing the loan to Hicks, appellee made the bank good, put in the funds to take the note out of the bank and the bank has not or cannot suffer any loss. It is urged by appellant that appellee, in taking this note out of the bank, unlawfully used funds belonging to his wards. Apparently, appellant is more interested in seeing the bank, of which he is receiver, suffer, than to see the moneys of these wards endangered. It is sufficient answer to this contention to say that appellant represents- only the creditors of the bank, and in such matters where the creditors’ interests are protected fully, the receiver should not be permitted to make complaint.

It is urged in these proceedings that appellee, as president and director of the bank, occupied a position of trust and fiduciary relationship to the bank and its creditors^ which entitled the bank and its creditors to his knowledge, activity and service, after the relationship had ceased and the creditors had taken possession of the bank’s assets through a receivership. The receiver does not represent the bank in its corporate entity. He merely represents the creditors to liquidate the bank’s assets. The president and director of an active bank do not guarantee the success of the bank or the value of its assets. They merely undertake to use due care and exercise their best, honest judgment in managing the affairs of the bank. The relationship of the officers and directors to the creditors is expressed in Becker v. Billings, 304 Ill. 190, 198, where the court say: “In Gottlieb v. Miller, 154 Ill. 44, where it was claimed that the directors of an insolvent corporation were, trustees of its assets for the benefit óf its'creditors,-;'the court said: ‘The proposition refers to the assets of an insolvent corporation as a “trust fund” and to-the officers of the corporation as “trustees.” This is-not strictly accurate.. The supposed trust does not fall within the definition of either an express trust, an implied trust, a resulting trust or a constructive trust. (1 Perry on Trusts-, — 2d ed.— secs. 24-27, inclusive.) At most, the assets of a corporation are, under some circumstances, a quasi trust fund, and the directors or officers of the corporation, under some circumstances, quasi trustees.’ In Briggs v. Spaulding, 141 U. S. 132, it is said: ‘Bank directors are often styled trustees, but not in any technical sense. The relation between the corporation and them is rather that of principal and agent, — certainly so far as creditors are concerned, between whom and the corporation the relation is that of contract and not of trust.’ ”

With the creditors the relationship is that of contract and not trust. Again the court held in Becker v. Billings: “In the case of Ellis v. Ward, supra, the defendants were the directors who had misappropriated the money and who were still directors of the company when the bill was filed against them. ‘It may be conceded that so long as a trustee continues to exercise his powers as trustee in regard to property that he can be called to an account in regard to that trust, but when he has parted with all control over the property and has closed up his relation to the trust and no longer claims or exercises any authority under the trust, the principles which lie at the foundation of all statutes of limitation assert themselves in his favor and time begins to cover his past transactions with her mantle of repose.’ ”

Nothing further needs to be added on the contention of appellant that appellee should have brought this suit in the interest of the creditors of the bank. Appellee had no authority to bring such a suit. Appellee had no obligation to bring such a suit. In this proceéding, appellee is not acting in his individual capacr ity blit he is acting in a fiduciary capacity, in the in; terest of minor heirs, for whom he is guardian and in that capacity if all else were conceded, he pwes no duty to the creditors of this bank. If he were negligent as president or director of the bank, this receiver, appellant, or the creditors have their action' against him. They have no action of any kind against appellee’s wards. But it is insisted that appellee came into a court of equity without clean hands. Coming into a court of equity without clean hands is well defined in Pitzele v. Cohn, 217 Ill. 30, 38; Fagan v. Rootberg, 320 Ill. 586, 594; Carpenters’ Union v. Citizens Committee to Enforce Landis Award, 333 Ill. 225, 251; Messenger Pub. Co. v. Mokstad, 257 Ill. App. 161, 167.

In Pitzele v. Cohn, supra, the court said: “In Guilfoil v. Arthur, 158 Ill. 600, it was held a new contract founded on a new consideration although in relation to property respecting which there had been unlawful transactions between the parties, is not itself unlawful. And in City of Chicago v. Union Stock Yards and Transit Co., 164 Ill. 224, it was said (p. 238) the maxim that a party must come into a court of equity with clean hands ‘ only applies to the particular transaction under consideration, for a court will not go outside of the case for the purpose of examining the conduct of the complainant in other matters or questioning his general character for fair dealing. The wrong must have been done to the defendant himself and must have been in regard to the matter in litigation. ’ And in Phalen v. Clark, 19 Cohn. 421, the court said: ‘We suppose it to be a well settled doctrine that if a plaintiff requires, any aid from an illegal transaction to establish his demand, he cannot recover it, or, in other words, if he is unable to support it without relying upon an unlawful agreement between himself and the defendant he must fail. But if the parties have been engaged in business, either malum in se or merely prohibited by law, yet if the cause of action be unconnected with the illegal act and is founded upon a distinct and collateral consideration it will not be affected by their former unlawful conduct. ’ ”

In Fagan v. Rootberg, supra, the court held: “In Ely v. King-Richardson Co., 265 Ill. 148, the complainants filed their bills in chancery against the defendant company for an accounting for salary earned and for other relief. It was contended by the company that the complainants did not come into court with clean hands, because, they said, they had, while in the employ of the company, begun the organization of a rival corporation in the same business for the purpose of carrying on business in competition with the defendant, and had induced a number of employees of the defendant to leave its employment and enter the employment of the new corporation, for which reason the complainants were discharged. It was there said: ‘Even if the conduct of the complainants was inconsistent with good faith to their employer and constituted a breach of their contract, they did not thereby forfeit the compensation which they had before earned. They might be liable for damages for the breaches of their contracts, — perhaps they might be enjoined from pursuing a course of conduct inconsistent with their contract obligations, — but they could not be deprived of their compensation already earned. . . . The maxim that he who comes into equity must do equity cannot deprive the complainants of their right to an accounting which is not founded in any way upon their wrongful conduct. ’ ’ ’

And in Messenger Pub. Co. v. Molestad, supra, it was held: ‘ ‘ The rule that one who comes into equity must cóme with clean hands or he will not be entitled to any relief is limited to the misconduct of the complainant in regard to the matter in litigation. Carpenters’ Union v. Citizens Committee, 333 Ill. 225; Fagan v. Rootberg, 320 Ill. 586; Anisfield Co. v. Grossman & Co., 98 Ill. App. 180; Cohn v. Pitzele, 117 Ill. App. 342; same case affirmed 217 Ill. 30; Consumers Co. v. Parker, 227 Ill. App. 552.

“In the Carpenters’ Union case the court said (p. 250): ‘The rule that a complainant must come into equity with clean hands means that he must do equity as respects the defendant’s rights in the particular matter of the suit. . . . The dirt upon his hands must be his bad conduct in the transaction complained of. If he is not guilty of inequitable conduct toward the defendant in that transaction his hands are as clean as the court can require. ’

“The rule is similarly stated in the Fagan case, and in this connection the court discussed the cases of Ely v. King-Richardson, 265 Ill. 148, and Langdon v. Templeton, 66 Vt. 173. In referring to the Ely case' the court said (p. 594): ‘The complainants filed their bills in chancery against the defendant company for an accounting for salary earned. . . . It was contended by the company that the complainants did not come into court with clean hands, because, they said, they had, while in the employ of the company, begun the organization of a rival corporation in the same business for the purpose of carrying on business in competition with the defendant, and had induced a number of employees of the defendant to leave its employment, and enter the employment of the new corporation. ’ Continuing, the court quoted from the Ely case as follows: ‘ “Even if the conduct of the complainants was inconsistent with good faith to their employer and constituted a breach of their contract, they did not thereby forfeit the compensation which they had before earned. They might be liable for damages for the breaches of their contracts, — perhaps they might be enjoined from pursuing a course of conduct inconsistent with their contract obligations, — but they could not be deprived of their compensation already earned. . . . The maxim that he who. comes into equity must do equity cannot deprive the complainants of their right to an accounting which is not founded in any way upon their wrongful conduct.” ’ Continuing further the court quoted with approval from the Vermont case above mentioned, after referring to the maxim under consideration, the following: ‘it (the maxim) has its limits, and the administration of equitable relief in particular controversies is confined to misconduct in regard to the matter in litigation. ’

“In the Pitzele case the court quoted with approval the rule as announced by the Supreme Court of Connecticut as follows: (217 Ill. 38) ‘We suppose it to be a well settled doctrine that if a plaintiff requires any aid from an illegal transaction to establish his demand, he cannot recover it, or, in other words, if he is unable to support it without relying upon an unlawful agreement between himself and the defendant he must fail.’

“In the instant case complainant relies for relief on the wrongdoing of the defendants. The claim of the defendants that complainant is guilty of wrongful conduct is not in regard to the matters alleged in complainant’s bill. The doctrine of unclean hands does not apply. The only exception to the rule is where the complainant, in conducting its business, is perpetrating a fraud on the public. American University v. Wood, 294 Ill. 186, affirming 216 Ill. App. 189.”

Appellee may be a good man or a bad man; he may have handled the affairs of the bank in an excellent manner, or he may have overreached, have been negligent in handling the affairs of the bank and used his position in the bank for his own profit, for which the creditors of the bank have their remedy, but “clean hands” in this suit, means the merits of this cause of action and the conduct and methods appellee has used to prosecute this suit. By the result of this suit, appellant takes about $4,000 for the creditors of the bank. Appellee, in the interest of his wards, first discovered the concealed property and filed this bill to remove the fraudulent deed from the record and make the land subject to the lien of his judgment. Appellee, in the interest of his wards, therefore, is entitled to the reward for diligence. (Ballentine v. Beall, 3 Scam. 203; Rappleye v. International Bank, 93 Ill. 396, 400; Cole v. Marple, 98 Ill. 58, 67.)

If appellee had not filed this bill, appellant, in all likelihood, would have recovered nothing on his judgment, as receiver. Now, by virtue of this bill, appellant will recover about $4,000.

The circuit court of Hancock county did not err in sustaining the exceptions to the answer. Appellant, if he had any proofs, could have shown that appellee did not file his bill with clean hands without pleading the fact. (21 Corpus Juris, 186 and notes 44 and 45.) Appellant offered no proofs of any kind.

For the reasons stated, the decree of the circuit court of Hancock county is affirmed.

Affirmed.