text:
    John M. McClelland v. Ichabod S. Bartlett et al.
    Promissory note—Payment —If a party would be secure in paying negotiable paper to a payee or assignee, before or after maturity, he must see to it that he pays to a holder of the note, and not to one who has been, but is not when payment is made. He should ask to see the notes before he pays them, and should take them up when paid.
    Appeal from the Circuit Court of Kane county; the Hon. T. D. Murphy, Judge, presiding. Opinion filed May 2,. 1879.
    Messrs. Botseord & Barry, for appellants;
    that Kribs was the general agent of Bartlett, and hence had general powers, cited 2 Kent’s Com. 620; Doan v. Duncan, 17 Ill. 274; U. S. Life Ins. Co. v. Advance Co. 80 Ill. 549; McGregor v. McDevitt, 64 Ill. 261.
    The mortgage was on the public records, and notice to all. Morrison v. Brown, 83 Ill. 562.
    Complainant was guilty of no laches: Stevenson v. O’Neal, 71 Ill. 314; Shreeves v. Allen, 79 Ill. 553; Comstock v. Hannah, 76 Ill. 530.
    As -to ratification of the acts of Kribs: Roby v. Cossitt, 78 Ill. 638; Searing v. Butler, 69 Ill. 575.
    Complainant is not responsible for a misapplication of the money paid: Mason v. Bauman, 62 Ill. 76.
    Mr. J. W. Raustead, for appellees;
    that Kribs was not the general agent of Bartlett, and it was the duty of complainant to ascertain the extent of his authority, cited Story on Agency, § 126; Williams v. Merritt, 23 Ill. 623; Smith v. Peoria Co. 59 Ill. 416; Baxter v. Lamont, 60 Ill. 237.
    The sale of the notes to complainant was in fraud of the rights of appellees, and they cannot be held responsible therefor: Johnson v. Barber, 5 Gilm. 425; Tuller v. Voght, 13 Ill. 277; Oxford v. Peters, 28 Ill. 434.
    Complainant should have ascertained if there was any equitable reason why the mortgage should not be enforced, and failing to do so, must abide the consequences: Olds v. Cummings, 31 Ill. 189; Haskell v. Brown, 65 Ill. 29; Bryant v. Vix, 83 Ill. 11.
    If the decree be erroneous only in part, it should be reversed only as to that which is erroneous: Rev. Stat. 1874, Chap. 110, § 82; Laws of 1877, 71, §10; Enos v. Capps, 12 Ill. 255; De Wolf v. Haydn, 24 Ill. 529; Rees v. City of Chicago, 38 Ill. 322.
    Subsequent purchasers in good faith of the lots, without notice of any equities between complainant and Bartlett, ought not to be prejudiced: Prevo v. Walters, 4 Scam. 35.
   Leland, J.

This was a bill to foreclose a mortgage filed by John M. McClelland, who claimed to be the holder by assignment of two promissory notes for $800 each, secured by mortgage given by Ichabod S. Bartlett to Edward S. Wilcox, assigned by him to his brother, John S. Wilcox, and delivered to McClelland by the latter through one John Q-. Kribs, in whose possession they were placed under circumstances mentioned hereafter; and there was a cross-bill by Bartlett to declare the notes paid and the mortgage satisfied. McClelland purchased the notes of John S. Wilcox through Kribs and paid him therefor $1,600, which was immediately paid by Kribs to John S. Wilcox. At the time they were thus sold and delivered to McClelland, which was Oct. 9th, 1873, there was on each note a blank assignment as follows: “Ed. S. Wilcox,” over which name John S. Wilcox had, prior to placing them in the hands of Kribs, written the words “ without recourse.” On the 21st of October, 1870, Edward S. Wilcox and wife conveyed a tract of land in the city of Elgin to Bartlett & Bartlett, on the same day, among others, gave Wilcox a note for $800, payable in two years from date, and one for a like amount payable in three years from date, with a mortgage on the purchased land to secure the notes.

October 21st, 1871, Edward S. Wilcox sold the notes with the mortgage security to his brother, John S. Wilcox, and made the above assignment in blank on the notes. As is sometimes done, as a matter of convenience in discharging a mortgage on record without recording a written assignment and having the discharge made by the assignee, Edward S. Wilcox gave his brother a blank release, probably undated, to be used when the notes should be fully paid up.

In November, 1871, Bartlett then being the owner., subdivided the tract of land into forty city lots, and after the recording the mortgage, conveyed all the lots to different purchasers, who are made defendants.

There would seem to be some inaccuracies in the allegations in the bill, as to these conveyances, or in .the record as to the evidence. At any rate, the allegations and proof do not agree. Lot 3 6 is alleged to be in a deed from Bartlett to Sheffer, but it is not in the abstract of the deed. Lots 10, 12, 14 and' 16 appear by the evidence to have been conveyed by Bartlett ■■to Kribs, but there is no allegation in the bill that they were. Lots 18 and 20 appear by the evidence to have been conveyed to B. P. Mason, but there is no allegation that they were. It is alleged that Bartlett conveyed them to Kribs, and this is proved; Bartlett, according to the evidence, having conveyed them to Mason, and also afterwards to Kribs, the deed to Kribs being, however, first recorded.

The allegation in one place in the bill as to the releases of Edward S. Wilcox having been recorded prior to October 9th, 1873, does not seem to be accurate, and conflicts with an allegation on the subject in another part of the bill. Lot 16 is probably accidentally omitted from those mentioned in the bill as released. These and other inaccuracies should be corrected by amendment of the bill before another hearing.

While Bartlett was still the owner of many of the lots, an arrangement was made between him and James Coleman and John Gr. Kribs which it is difficult to understand fully. The three were each in some way interested in the division of the proceeds to be derived from the sales of the lots, either as owners, or in being paid- for services rendered in effecting sales. The only evidence as to what the relations of Bartlett, Coleman and Kribs were, is that of the two former; and they have evidently omitted to state the whole facts fully. The latter was not examined as a witness. Bartlett, who had given some kind of a contract to Coleman, says he had an interest in the property of $800, besides paying incumbrance, which Coleman agreed to do, and that he got this $800 out of the proceeds—part in money and part in notes. Coleman was evidently pecuniarily embarrassed, and it was not convenient for him to have the title in his name; consequently when sales were made, Bartlett made deeds. Bartlett also, on Oct. 10th, and ¡November 1st, 1873, conveyed to Kribs a portion of the lots, and Kribs afterwards executed deeds to various parties.

If Bartlett’s statement be true, that his interest was only as above stated, then Coleman and Kribs were to divide proceeds of sales over Bartlett’s $800 in equal or unequal proportions, or Coleman was to have all the proceeds, and Kribs was to be paid for his services as confidential title holder and lot seller for Coleman.

Coleman says that he was to pay the Wilcox notes and interest, and Kribs $50, which Kribs charged Bartlett, and that he had the balance of the lots conveyed to Kribs, to be held for him. How matters stood between Coleman and Kribs does not appear; consequently if Coleman and Kribs—if they were jointly interested in the lots, or Kribs alone if not—could manage not to pay the Wilcox notes, they, or one of them, would be that much better off. In this condition of things, and while Bartlett still held the legal title in his name, and Coleman held a contract of some kind from Bartlett, an auction or public sale of- the lots was advertised, and the unsold lots, except perhaps those afterwards deeded by Bartlett to Kribs to hold for Coleman, were sold at auction on the terms one-third cash, balance in one and two years with mortgage; and Bartlett made deeds to the several purchasers, and these deeds bear date Oct. 10th, 1873; but the payment of the paid portions of purchase money and the giving the mortgage afterwards for the unpaid part, were probably, and according to Bartlett’s answer, about the 20th of that month. When sales were made, lots were from time to time inserted in the blank release; and in one instance Edward 8. Wilcox furnished another release containing some lots which Kribs passed over to a purchaser. It would also seem to have been the understanding of J. 8. Wilcox, the then holder of the two $800 notes, and perhaps of Bartlett, Coleman and Kribs—though it is not certain that the last three ever intended to do so—that Kribs should pay the two $800 notes out of the proceeds of the sales of the lots. J. 8. Wilcox, who seems not to have had confidence in Coleman, after writing “without recourse” as stated, placed the two $800 notes in Kribs’ hands, and Kribs was ostensibly constituted by Bartlett and Coleman, or perhaps more particularly by the latter, an agent to collect the proceeds of the'sales and apply part thereof to the payment pf the two $800 notes thus left with him by Wilcox, who also left with him the before mentioned, probably undated release signed by Edward 8. Wilcox. Coleman does not swear, however, that Kribs in his accounts with him deducted out of proceeds of sales of lots any amount as paid to Wilcox on the two $800 notes. Of course, if Bartlett received the $800 belonging to him out of the proceeds of sale as before stated, there was no deducting as to him of money paid by Kribs to Wilcox, and he may possibly not have known how it was, or he may have known all about it. All that was done and known by the three is probably not disclosed.

The complainant and Kribs had been acquaintances. They used to be neighbors when Kribs was a boy, and Kribs had discovered that the old gentleman had lately sold his farm, and that he was in funds. It was a good financial operation for him and Ooleman to get along without applying the proceeds of the sales of the lots to the payment of the two $800 notes. Consequently Kribs, having in his possession the $800 notes, which Coleman ought to pay, and which he says it was his duty to pay, instead of applying the proceeds of the sales for that purpose, on the 9th day of October, A. I). 1873, sold the notes to complainant for $1,600, the interest having been paid, and passed them over to him already indorsed in blank and without recourse,” as aforesaid, and actually paid John S. Wilcox the $1,600 thus received in the very checks he obtained. Wilcox perhaps did not know, and probably did not care, whether he occupied the position of a seller of the notes without recourse, or that of one whose notes had been paid. To us, however, it appears very clear that McClelland, on the 9 th day . of October, A. D. 1873, became the purchaser of the two notes and of the mortgage as incident thereto, and that no money paid to Kribs by Coleman, after J. 8. Wilcox had ceased to be the holder of the notes, was a good payment as against one to whom they had been transferred, and who was the holder for value. If a man desire to be safe in paying negotiable paper to a payee or assignee, before or after maturity, he must see to it that he pays to a holder of the note, and not to-one who has been, but is not when he pays. Holmes v. Field, 12 Ill. 424; Story on Promissory Notes, § 375. If Kribs had the notes with authority to sell them, and we think he had, payment to Hm after he had sold them will not satisfy them, though the one paying supposed he still held them. He should have asked to see the notes before he paid them, and should have taken them up when paid. All the payments made by Coleman to Kribs, if made by retaining proceeds. of sales by the latter, were after Wilcox had ceased to be the owner and holder of the notes, and after, through Kribs, he had sold and delivered them to complainant for a valuable consideration regularly indorsed. It does not, however, even appear that Kribs did retain the $1,600 from Coleman’s money in his hands. On the contrary, it looks very much as though the amount retained, if any, was not for the sole pecuniary advantage of Kribs; that he did not really embezzle the $1,600, but that Coleman, who had contracted with Bartlett that he would do so, has omitted, or that Coleman and Kribs, if jointly interested, have omitted to use the proceeds of sales for that purpose, and that in a mere pecuniary view of the Subject, it is a matter of no moment to them whether complainant or Bartlett’s grantees should bear the loss.

The complainant certainly has more of the appearance of a victim than any one else in this record. We can look upon him in no other light than as the assignee and holder of the unpaid two $800 notes and the mortgage, and that he is entitled to foreclose the same and make the amount thereof out of the mortgaged premises, or some portion thereof, and that therefore, by the decree dismissing his bill, and by granting the relief prayed for in Bartlett’s cross-bill, thus destroying his mortgage and also declaring his two notes paid, so that he has no redress either in equity to foreclose and sell, or at common law by suit against maker or prior endorsers, there was error.

It is apparent that the bias and leaning of Bartlett, Coleman & Kribs, perhaps because not financially prosperous, were very strong in favor of owing debts rather than of paying them, and that for this reason among others, it seems to us that the mortgage debt was never paid to John S. Wilcox, or to Kribs for him, out of the proceeds of the sales of the lots, but solely to Wilcox out of the proceeds of the sale of the two notes. Even, however, if Coleman did pay the notes to Kribs for Wilcox, they were paid to one who had no right to receive payment after the notes were transferred for value, and while McClelland, the complainant, was the legal owner and holder. If it were true that Kribs, after paying the $1,600 received of complainant to Wilcox, had embezzled $1,600 of Coleman’s money in his hands, or of money belonging to Bartlett and Coleman, or Coleman and Bartlett’s share, if the money belonged to all three, Bartlett and Coleman or one of them certainly would have said so distinctly on his examination as a witness.

For the reasons stated we think the decree should be reversed and the cause remanded, and that the questions as to which of the lots should be first liable should be left in less confusion and uncertainty, by more accuracy of allegation and proofs, and that to that end complainant have leave to amend his bill. We think the lots to which the title still remains in Kribs, if any, should be first sold and the proceeds applied, and next, the other lots unreleased at the time complainant purchased the notes, should be applied to the satisfaction of the mortgage debt.

Reversed and remanded.


source: Caselaw Access Project

author: Sibley, J.

license: Public Domain

text:
    The Michigan State Insurance Company v. Stephen Abens.
    1. Process—Service upon corporation.—Service of a summons upon a foreign insurance company which states that the president of the company was not found in the city of Aurora, but fails to state that he was not found in the county where suit was brought, is insufficient; it is not a compliance with the statute.

      2. Service upon agent—When company has ceased doing business in the state.—The act relating to foreign insurance companies provides that when such company ceases to transact business in this State, the agents last designated, or acting as such, shall be deemed to continue for the purpose of serving process, etc.; in such a case service must be made upon such last designated agents of the company, and the sheriff takes upon himself the responsibility of determining whether service is actually made upon an officer of the company.
    3. Who is meant by bast designated agent.—The statute evidently refers to the agents last acting in the entire State, and not to such as may have been dispensed within any particular county where the plaintiff happens to reside, provided others remain in the jurisdiction upon which service can be made.

      Error to the City Court of Aurora; the Hon. Frank M. Annis, Judge, presiding. Opinion filed Hay 2, 1879.
    Mr. Charles Wheaton, for plaintiff in error;
    that if process has not been properly served, the court has no authority, and all its proceedings are void, cited Goudy v. Hall, 30 Ill. 109; Johnson v. Johnson, 30 Ill. 215; Campbell v. McCahan, 41 Ill. 45; G. T. M. M. & T. Co. Schiemer, 64 Ill. 106.
    Where service is insufficient and no appearance, the judgment must be reversed; St. L. A. & T. H. R. R. Co. v. Dorsey, 47 Ill. 288.
    It must appear affirmatively from the officer’s return that there was legal service: Varian v. Edmonson, 5 Gilm. 270; Belingal v. Gear, 3 Scam. 575; Cost v. Rose, 17 Ill. 276; Boyland v. Boyland, 18 Ill. 551.
    ' The return must be positive as to service on the proper officer of a corporation: Ill. & Miss. Tel. Co. v. Kennedy, 24 Ill. 319.
    Hothing will be presumed in favor of the jurisdiction of an inferior court: Shufeldt v. Buckley, 45 Ill. 223.
    City courts cannot send their process beyond the city limits: People v. Evans, 18 Ill. 361; Holmes v. Fihlenburg, 54 Ill. 203; Dixon v. Dixon, 61 Ill. 324.
    It must appear from the return that service was had in the city: Gardner v. Witbord, 59 Ill. 145.
    A party may contest the fact of such service: Owens v. Ranstead, 22 Ill. 161; Brown v. Brown, 59 Ill. 315; Hickey v. Stone, 60 Ill. 458; Wilday v. McConnell, 63 Ill. 278.
    The Circuit Court alone has jurisdiction of such actions: Board of Supervisors v. Young, 31 Ill. 194; Randolph County v. Ralls, 18 Ill. 29.
    Want of proper service may be raised by motion: Protection Life Ins Co. v. Palmer, 81 Ill. 90.
    Mr. B. F. Parks, for defendant in error;
    as to service upon corporations, cited Bev. Stat. 1874, 598.
    Upon the question of jurisdiction of the city court: Bev. Stat. 1874, 345, §191.
   Sibley, J.

An action of assumpsit was commenced in the City Court of Aurora, by Stephen Abens against the appellant, upon a policy of insurance issued by it to indemnify him in case of loss from fire. At the June term of that court a judgment by default was entered against the company. Afterwards during the term, a motion was made to set aside the default on account of an insufficient service upon the defendant in the suit, which reads as follows:

“ Served this on the within named, the Michigan State Insurance Co. of the city of Adrian, Michigan, by reading and by delivering a copy to C. H. White and David Iliff, as agents for said company, the president of said company not found in the city of Aurora, Kane county, Illinois, this 10th day of May, 1876.
“Chas. S. Mixes, Sheriff,
“By I. W. Kice, Deputy.”

And for leave to plead. Affidavits were filed in support of the motion, from which it appeared that White and Iliff had ceased to be agents .of the company for a considerable period previous to the service on them.

The court refused to open the default and allow the company to plead to the action. From that decision an appeal was taken, and this is the only question presented for our consideration.

A service very similar was held in The Illinois and Mississippi Telegraph Co. v. Kennedy, 24 Ill. 319, to be insufficient. It was there said that the return must be positive and the sheriff takes upon himself the responsibility of determining the fact whether the service was actually made upon an officer of the corporation. The service here is defective not only in this respect, but it is also open to another objection. It states that the president of the company was not found in the city of Aurora. What is the inference to be drawn from that statement? Simply that he might have been found outside of the city, in the county of Kane, if search had been made. This is not a compliance with the statute, which authorizes' a service upon an agent only in case the president cannot be found in the county where the suit is brought.

Counsel for appellee make one point which will be noticed. The other reasons urged, especially those outside the record, cannot be expected to have any influence upon the decision of the case in this court.

Sec. 22 of Oh. 73, of the revised laws of 1874, in relation to fire insurance companies, reads that “ in case any insurance company not incorporated in this State, shall cease to transact business in this State according to the laws thereof, the agents last designated or acting as such for such corporation, shall be deemed to continue agents for such corporation, for the purpose of serving process for commencing action upon any policy or liability issued or contracted while such corporation transacted business in this State; and service of such process for the cause aforesaid upon such agents shall be deemed a valid personal service upon such corporation.”

When a foreign insurance company has ceased to transact business in this State, the agents last designated are deemed to continue in office, for the purpose of serving process upon the corporation.

This in no respect changes the rule stated in The Illinois and Miss. Telegraph Co. v. Kennedy, supra. It is wholly immaterial whether the agent is created by the corporation or continued in office- by force of the statute. The service should be the same, and the officer making it in either case must take upon himself the obligation of stating the fact of agency in positive terms.

Although the company may have, as is insisted, withdrawn its business from the State, still, to render the service a valid one u'nder the statute on a person not at the time an officer of the corporation, it must be made upon its agents last designated or acting as such. How is the proof upon that subject in the present case? Hot that White or Iliff were the last designated or acting agents of the company, or even amongst the last in this State, but that one E. S. Critchell, residing in Chicago, had been continued after White and Iliff were discharged, and was at the time of this service acting as agent of the company. The statute evidently refers to the agents last acting in the entire State, and not to such as may have been dispensed with in any pa* ticular county where the plaintiff happens to reside, provided others remain in the jurisdiction upon which service can be made. This it was doubtless seen would afford an ample remedy in such cases, as by the practice act the Circuit Court was empowered to send its process to any county in the State where the' last acting agent might be found.

The City Court erred in not setting aside the default, and allowing the defendant to plead. The judgment is therefore reversed and the cause remanded, with leave to the appellant to plead to the merits of the action.

Reversed and remanded.


text:
    Jane Cooper v. William Cooper.
    1. Minor—Service after majority.—If a child remains with a parent after arriving at majority, in the same apparent situation as when a minor, in the absence of a contract, no recovery can be had for services rendered by him.
    2. Resulting trust.—The court, reviewing the evidence, finds that it comes far short of establishing a resulting trust, as claimed by the complainant.
    3. ' Specific performance of parol contract.—Before a court will decree a specific performance of a parol contract, the proof to sustain it must he clear and unequivocal. In this case the allegations of the complainant upon this point are unsupported by the testimony.
    Error to the Circuit Court of LaSalle county; the Hon. Edwin S. Leland, Judge, presiding. Opinion filed May 2, 1879.
    Mr. Walter Reeves and Mr. E. F. Bull, for plaintiff in error;
    that courts will he cautious in enforcing specific performance of a contract where there is doubt as to its existence or terms, cited Rector v. Rector, 3 Gilm. 105; Alexander v. Hoffman, 70 Ill. 114; Gosse v. Jones, 73 Ill. 508; Kimball v. Tooke, 70 Ill. 553.
    The proofs do not conform to the allegations of the bill, and this is fatal to a recovery: Cronk v. Trumble, 66 Ill. 428; Hartwell v. Black, 48 Ill. 301; Taylor v. Merrill, 55 Ill. 52.
    The finding of the court is at variance with the allegations of the bill: Tiernan v. Granger, 65 Ill. 351; Gosse v. Jones, 73 Ill. 508.
    A clear preponderance of evidence must be had before a specific performance will be decreed: Fleischman v. Moore, 79 Ill. 539; Carver v. Lasater, 36 Ill. 182; Brink v. Steadman, 70 Ill. 241; Lantry v. Lantry, 51 Ill. 458; Wilmer v. Farris, 40 Iowa, 309.
    Upon the question of a minor’s right to pay for services after majority: Freeman v. Freeman, 65 Ill. 106; Miller v. Miller, 16 Ill. 296.
    Mr. D. P. Jones, for defendant in error;
    that a parol promise by a father to son to deed land to him, where the son enters into possession and makes improvements on the faith of such promise, will be enforced: Bright v. Bright, 41 Ill. 97.
    The earnings of a child during minority, after he has been emancipated, are his own: Partridge v. Arnold, 73 Ill. 600; Scott v. White, 71 Ill. 287; Holmes v. Holmes, 44 Ill. 168.
   Sibley, J.

The bill in this case was filed in 1876, and from that it is made to appear that Jane Cooper, the plaintiff in error, resided with her husband in Hew Hampshire until his death, which took place about 1855. Soon after that occurrence, she, with her eight children, removed to and settled in the county of BaSalle, in this State, where she purchased a small farm of eighty acres, using for that purpose some moneys which she had received from her husband’s estate. William, the complainant in this suit, was then a lad of some eleven years old. He, soon after the arrival of the family, went to work for a neighbor, and his mother collected his wages for nearly three years. On returning home, he remained until 1862, when he entered the army of the United States. He continued in the military service about three years. During that period he sent home to his mother various sums of money, which it is alleged she loaned out for his benefit. After returning from the army in •1865, lie resided with his mother, and worked for her nearly . two years, and his services during that time were worth $293 for which he had never received any payment.

The -bill further states, that, in the latter part of the year 1865, an agreement was entered into between him and his brothers, John and Edward, to purchase of one Cushman, for their common benefit, two hundred and forty acres of land, situated in LaSalle county, each to pay a portion of the purchase money.

Under this arrangement the land was bought for $4,412.20, in the name of their mother, Jane, but for the use of the complainant and his two brothers, John and Edward. The money which the complainant earned while in the army and sent to his mother, was used in part payment of the purchase price for the land, and the remainder was afterwards paid to Cushman by his brothers, John and Edward, though the deed was executed to Jane Cooper without the knowledge of thé complainant, and she paid no part of the consideration money.. Afterward, in July, 1867, it was mutually agreed between the complainant, his mother and brothers, John and Edward, that a division or partition should be made of the land purchased from Cushman, in the following manner:

The west eighty acres was allotted to John; the east eighty to Edward; and the middle eighty to the complainant. It was further agreed by the parties, that Jane Cooper should execute a deed to the complainant for his eighty acres thus set off to him, and that he was to pay her the sum of five hundred dollars as soon as he could. In the early part of 1868, complainant, with the consent of the other defendants, took possession of the portion allotted to him, and made valuable improvements upon it, which possession has been continued to the present time. The complainant alleges that he has tendered to his mother the $500, and she refused to make him a deed for the eighty acres, as agreed upon by the parties in interest.

A default was taken as to defendants, John and Edward Cooper, but Mrs. Jane Cooper answered,, denying all the material allegations in the bill. Upon the proofs coining in with the master’s report, the court decreed the relief sought, and Jane Cooper has brought the case to this court on error, seeking a reversal of that decree. The defendant in error, to sustain the decree, bases his argument chiefly upon two grounds, which are the only ones of importance enough to justify any attention. First. That the money of these three sons was used in purchasing the land, and therefore a resulting trust was created in their favor. Second. Mrs. Cooper agreed with the complainant to convey to him the eighty acres claimed in the bill, and he entered into the possession of it under the contract, and made valuable improvements, which entitled him to a specific performance of the agreement. The proof to sustain the first position, consists mainly in the testimony of the complainant. He, upon his second examination testifies that a part of the money furnished to purchase the land belonged to him, a part to his brothers, and a part he supposed belonged to his mother. The portion that he furnished was estimated at $800. How he makes up that amount is not explained. It is true, he says that he sent home from the army some $700, and that his mother collected his wages earned before entering the service. Still he does not seem to know whether this money or any considerable portion of it was used in the purchase of these lands, and it' must be borne in mind, that he was an infant under the age of twenty-one years, until long after he entered the army. During that period his mother was entitled to his earnings, and may for anything that appears, have appropriated them to the support of herself and family. Such is not only the law, but it. was held in Miller v. Miller, 16 Ill. 296, Morton, Adm’r v. Rainey, 82 Ill. 215, and many other cases,v “ that if a child remained with a parent after majority in the same apparent situation as when a minor, in the absence of a contract, no recovery can be had for services rendered.” This disposes of the question relative to the services claimed by the complainant to have been rendered by him for his mother after his return from the war, while a member of her family. Since there is no pretense that she agreed to pay him wages, or that he was employed under such circumstances as a promise could be implied.

. Counsel assert that a child after he has been emancipated by his parents, is entitled to his own earnings. This proposition is not disputed. But as the record here is silent upon that subject, it must be presumed that the natural relation of mother and son continued to exist during his minority, and even afterward as long as he remained a member of her family.

All the material allegations of the complainant upon which he founds his claim for relief, are positively denied by his brothers, John and Edward Cooper. They both swear that William did not send home to his mother more than about $400; and that Jane Cooper purchased these lands of Cushman, and paid for them out of her- own means. Mrs. Cooper also testified to the same effect, and that she never received from the complainant more than $100 after he became of age. If this statement was not true, how easy it would have been for him to contradict it. On the contrary, he does not mention his age when he entered the army, or when he returned home.

The whole testimony, when taken together, comes far short of clearly establishing a resulting trust in favor of the complainant for the eighty acres claimed in the bill. In examining the testimony, the admission of Jane Cooper in respect to the fact that the land was purchased for her sons, and that she had loaned money, calling it Williams’, which was very natural for her to do, notwithstanding she was really entitled to his earnings (except the bounty reward as a soldier), if she chose to claim them, have not been overlooked.

Second. Was the testimony sufficient to justify the court in decreeing a specific performance of the parol agreement stated in the bill? The contract is alleged to have been made July, 1867, mutually between the complainant and the defendants, Jane, John and Edward Cooper, by which the premises purchased of Cushman were to be divided so that John was to get the west eighty acres, Edward the east eighty, and the complainant the middle eighty. Jane was to convey to the complainant his eighty acres, and he to pay her for the conveyance $500 as soon as he could procure the money.

Although the statute of frauds may not have been set up in the answer, and relied upon, which would, it is believed, have been fatal to the complainant’s right of recovery, yet the authorities are all to the effect that, before the court will decree a specific performance of a parol contract, the proof to sustain it must be clear and unequivocal. It is said that a parol promise by a father to his son, to convey land, if the son enters into possession under the agreement, relying upon the faith óf it, makes valuable improvements, equity will enforce the contract. And the case of Bright et al. v. Bright, 41 Ill. 100, is referred to as sustaining the position. But it should be recollected there is no evidence in this case that the complainant did enter into the possession of the premises, under the agreement stated, relying upon the faith of it, and made valuable improvements, which is one of the necessary requisites to enable the court to exercise its equitable powers. Indeed, the weight of evidence is that he never had possession of the whole eighty claimed by him.

From the complainant’s testimony it would seem that he took possession under claim of ownership, by virtue of the purchase from Cushman. Mrs. Cooper’s evidence is -that he went into possession as her tenant, and never paid any rent, except two or three years’ taxes, because he would not, and she did not turn him out for the reason he was her son. If he had been let into possession as a purchaser, that of itself would have been a suificient answer to the claim for rent. But neither of them treat the possession as having been obtained by virtue of, and under any agreement on the part of Jane Cooper to convey the land to the complainant.

But leaving out the question of the statute of frauds, should the almost unsupported testimony of the complainant be allowed to prevail over that of his mother, corroborated by her two sons, John and Edward, with such convincing force as to remove any reasonable apprehension that might arise respecting its accuracy ? We -feel constrained to give a negative answer to the question. Therefore, the decree of the Circuit Court will be reversed, and the cause remanded.

Decree reversed.

JLeland, J., having decided this ease in the court below, took no part in the decision of it here.


author: Pillsbury, P. J.

text:
    Maria E. Young v. Samuel C. Stearns et al.
    1. Deed—Delivery.—While it is true that it is essential to the legal operation of a deed that the grantee assents to receive it, yet it is equally true that it can be delivered to a third party by sufficient authority from the grantee, and such delivery will be as effectual to pass the title as if made to the grantee himself.
    Creditor’s bill—Evidence Insufficient to show fraud.—A bill was filed by defendants in error against plaintiff in error, impleaded with others, to set aside a conveyance of lands to her, as fraudulent. The preponderance of testimony showing that plaintiff in error received the conveyance in good faith, in satisfaction of a bona fide debt, and with no knowledge of other indebtedness of the grantor, and with no fraudulent intent, the court erred in setting aside such conveyance. The delay of the debtor in putting the deed upon record cannot, under the circumstances, prejudice the rights of plaintiff in error.
    Error to the Circuit Court of Will county; the Hon. ■Tosía T-r McBobeets, Judge, presiding. Opinion filed May 2,1879.
    Mr. Gr. D. A. Parks, for plaintiff in error;
    that delivery of a deed to a third party in pursuance of a previous agreement, is a good delivery, cited Cooper v. Jackson, 4 Wis. 548; Herbert v. Herbert, Breese, 354; Hulick v. Scoville, 4 Gilm. 159; Wiggins v. Lusk, 12 Ill. 132; Himes v. Keighblingher, 14 Ill. 469; Kingsbury v. Burnside, 58 Ill. 310; Crocker v. Lowenthall, 83 Ill. 582; 3 Washburn on Real Property, 255.
    Both vendor and vendee must participate in the fraudulent intention: Hatch v. Jordon, 74 Ill. 414; Myers v. Kinzie, 26 Ill. 36; Gridley v. Bingham, 51 Ill. 153; Ewing v. Runkle, 20 Ill. 448.
    A debtor may prefer one creditor to another: Hessing v. McCloskey, 37 Ill. 341; Bump on Fraudulent Conveyances, 178.
    Mr. George S. House, for defendants in error.
   Pillsbury, P. J.

Creditor’s bill filed in Will Circuit Court by defendants in error against plaintiff in error, and one Bush, alleging in substance that a judgment was rendered in said court in favor of defendant in error, Knox, and against Hiram F. Bush, for the sum of $592.90, on "the 7th day of October, A. D. 1871; that execution was issued thereon and returned “ no property found; ” and' that the indebtedness upon which said judgment was based, accrued long prior thereto. That on the 2nd day of October, 1871, said Bush filed in the recorder’s office of said county, a deed to Maria E. Young for certain lots in the city of Joliet, and charges that said deed was made without any sufficient consideration, and with design to delay and defraud the complainants and other creditors; and that said deed was never delivered to the grantee, and that the judgment, so recovered by Knox, was for the use and benefit of the other defendants in error, Stearns, Leach and Jones.

The bill also alleges the recovery of two other judgments against Bush, but as the case was disposed of in the court below as to them, and they not being before us upon this record, nothing need be said further as to them.

The answer of Mrs. Young sets up that long before the rendition of the judgments in question, to wit: On the 12th day of November, 1869, she purchased the premises in good faith from Bush; that the purpose of both parties at that time was to perfect the conveyance to her without delay; that her husband, D. 0. Young, who had acted as her agent, having left Joliet for California within a day or two after the deed had been prepared, and she having no agent to assist her in her business but Bush himself, who was her son-in-law, the execution of the deed, as promised, was neglected; that it was not acknowledged until January, 1871, nor filed for record till 2nd October, 1871; that such delay was in consequence of no fraudulent arrangement with her, but entirely from the negligence and procrastination of said Bush during her absence in California, where she resided; that on the 12th day of November, 1869, Bush was justly indebted to her in the sum of over $2,000, exclusive of interest, on a settlement of accounts made before her husband’s departure for California; that such indebtedness consisted of divers sums of money loaned to Bush or paid for his use, or received by him for her use; that the conveyance was to be an absolute deed, but there was an understanding that she would re-convey upon re-payment; that she knew nothing of Bush’s other debts or pecuniary embarrassments.

Upon the hearing, a decree was rendered, subjecting the premises to sale under the judgment, and setting aside the deed to plaintiff in error, and she appeals.

Daniel C. Young, husband of plaintiff in error, testified that in November, 1869, Bush was indebted to Mrs. Young over $2,000, and gives the items constituting such indebtedness, and the dates when received by Bush, or paid out for him at his request.

This witness further states that he transacted all this business on behalf of his wife, and that he left Joliet for California in November, 1869; and previous to leaving he entered into an agreement with Bush to deed the premises to Mrs. Young, in consideration of this indebtedness; that in pursuance of such agreement, he filled out the deed referred to in the original bill, and went with Mr. Bush to find a notary public to have it acknowledged; but by reason of the absence of the notary, it was deferred; and on the day before he left, Mr. Bush promised to have the deed executed without delay, and place it upon the record; and neither he or his wife was informed that it had not been done until the latter part of October, 1871.

Bush swears that on the 12th of "November, 1869, at date of deed, he was owing Mrs. Young over $2,000 for money loaned, corroborating the witness Young as to items and dates; that the deed was drafted by the witness, D. C. Young; that he promised him, the day before he left, to have the deed exe- . cuted, acknowledged, and left for record immediately. He further says, that the date o-f acknowledgment, Jan. 3, 1871, is correct, and that he delayed, thinking there was no hurry, and that it might injure his credit; but such delay was not by any arrangement with Mrs. Young; that the deed was made as an absolute conveyance, but with the understanding that she would re-convey on payment of the indebtedness; 'that ho did not pay it, and filed the deed for record for her.

This is all the testimony in the record bearing directly upon the consideration of the deed, or the circumstances under which it was delivered. The evidence of the complainants consists of admissions by Bush that he owned the property, and the further statements of complainants that they trusted him upon the strength of his being in the possession of the premises, as the owner thereof. We deem this evidence entirely insufficient to overcome the positive testimony of Young and Bush. We have no reasonable doubt that Bush was indebted to Mrs. Young at the date of the deed, in an amount fully equaling the consideration named therein. It is quite clear from the proof, also, that she was no party to the delay in having the same recorded.

Of course the deed did.not operate as a conveyance until its delivery to her, or to some one for her, with her approval.

The debtor would have had the undoubted right to prefer Mrs. Young to his other creditors; and had he, on the date of the recording the deed, conveyed to her the lots in satisfaction of his indebtedness to her, these complainants could not have complained, and it appears to us she is in no worse position because she made this agreement with Bush to execute the deed and deliver it to the recorder for her, long prior to the time he became indebted to complainants. Had Bush done as he had agreed, the deed would have been delivered to the recorder in November, 1869; but as he did it before the complainants obtained a lien upon the property, we are of the opinion that the laches of Bush cannot defeat her claim to the property through the deed, if it is otherwise valid.

The only other point is, whether under the circumstances proven, the delivery to the recorder was a delivery to her so as to make the deed operative.

The proof is that Bush was to execute the deed, and deliver it to the recorder to be recorded for her.

While it is true that it is essential to the legal operation of a deed that the grantee assents to receive it, and that the same cannot be imposed upon him, yet it is equally true that it can be delivered to a third party by sufficient authority from the grantee, and such delivery will' be as effectual as if made to the party himself—the underlying principle being the assent of the grantee to such delivery for his use, and this assent can bo shown by the acts of the parties as well as by words. There can be no question in this case but that the deed was delivered to the recorder for her use, and with not only her assent, but a positive agreement that it should he so delivered; and this, we believe, constitutes a valid delivery under all the authorities.

Under the proof as it appears in this record, the court below should have dismissed the bill. The decree of the court below will be reversed and cause remanded.

Decree reversed.


author: Leland, J.

text:
    Elmer Bohanan et al. v. Major S. Bohanan.
    Mistake in a deed—Power of court to correct.—B., to induce his son to relinquish a contemplated removal to Nebraska, told him if he would remain he would purchase for him a forty-acre tract, which he accordingly did, and the son made improvements upon the house and farm, and put in crops, but without actually moving upon the premises. By mistake, as claimed by complainants, B. was named as grantee in the deed instead of his son. The son died shortly after, and on a bill filed by his heirs to correct mistake in the deed, held, that the evidence tending strongly to show the • intention of the parties that the land should he conveyed to the son in fee, a court of equity would correct the mistake and order a conveyance of the fee to the heirs of the son.
    Error to the Circuit Court of Peoria county; the Hon. J. W. Cochran, Judge, presiding. Opinion filed May 2, 1879.
    Mr. J. K. Cooper and Mr. H. E. Worthington, for plaintiff' in error;
    on the power and duty of a court of equity to correct a mistake, cited Broadwell v. Broadwell, 1 Gilm. 599; Ruffner v. McConnell, 17 Ill. 217; Story’s Eq. Jur. § 161; Kenselbrach v. Livingston, 4 Johns. Ch. 145; Hunt v. Rousmaniere, 1 Pet. 13; Rider v. Powell, 4 Abb.; Hunter v. Bilyeu, 30 Ill. 368; Clearwater v. Kimler, 43 Ill. 272; Mills v. Lockwood, 42 Ill. 111; Briegel v. Moeller, 82 Ill. 257; Moore v. Munn, 69 Ill. 591; McLennan v. Johnson, 60 Ill. 306; Long v. Hartwell, 34 N. J. 116; Goltra v. Sanasack, 53 Ill. 456; West v. Madison Agr’l Board, 82 Ill. 205; Hunt v. Frazier, 6 Jones’ Eq. 90; Clayton v. Freet, 100 Ohio, 544; Ex. Bank v. Russell, 50 No. 531; Wheeler v. Kirtland, 23 N. J. Eq. 13.
    Part performance will take the case out of the Statute of Frauds: Hawkins v. Hunt, 14 Ill. 42; Ramsay v. Liston, 25 Ill. 114; Deniston v. Hoagland, 67 Ill. 265; Adkinson v. Tanner, 68 Ill. 247; Parkhurst v. Van Courtland, 14 Johns. 15; Freeman v. Freeman, 43 N. Y. 34; Annam v. Merritt, 13 Conn. 479; Farrar v. Patton, 20 Mo. 81; Peckham v. Berkham, 8 R. I.17; Wood v. Thornley, 58 Ill. 464.
    Delivery of or entry into possession with consent of the vendor, in pursuance of the contract, will entitle the vendee to specific performance: 1 Leading Cas. in Eq. 1045; Eaton v. Whitaker, 18 Conn. 222; Tilton v. Tilton, 9 N. H. 386; Allen’s Est. 1 Watts & Serg. 383; Pugh v. Good, 1 Watts & Serg. 56; Johnson v. Glancy, 4 Blackf. 94; Haugemont v. Pomeroy, 7 C. E. Green, 119.
    So if a child enters into possession and makes improvements under a parol promise from the father to convey: Kurtz v. Hibner, 55 Ill. 514.
    Making valuable improvements is a good consideration for the promise: Bright v. Bright, 41 Ill. 97; Lessee of Tyler v. Eckhart, 1 Binn. 378; Ford v. Ellingwood, 3 Met. (Ky.) 359; King’s Heirs v. Thompson, 9 Pet. 204; Young v. Glendening, 6 Watts, 509; Wood v. Thornley, 58 Ill. 464.
    A parol gift followed by acts or expenditures by the donee which render a revocation of the gift unjust or inequitable, will be upheld and enforced: 1 Leading Cas. in Eq. 1047; Sace v. Henry, 39 Ind. 414; Galbreath v. Galbreath, 1 Kan. 402; Syler v. Eckardt, 5 Binn. 308; Young v. Glendenning, 6 Watts, 309; Mahon v. Baker, 2 Casey, 519; Atkinson v. Jackson, 8 Ind. 30; Renker v. Abell, 8 B. Mon. 566.
    A contract not obligatory when made, may be enforced at the suit of one who has changed his position for the worse on account of the offer: Lansing v. Cole, 3 Green Ch. 228; France v. France, 4 Halst. 650; Young v. Paul, 2 Stockt. ch. 402; Vesy v. Sevy, 13 How, 345; Adams’ Eq. 86; Old Colony R. R. Co. v. Evans, 6 Gray, 26.
    Promise to deed if grantee will improve, when condition is complied with, will compel specific performance: Perkins v. Hadsell, 50 Ill. 216.
    Time is not of the essence of the contract, unless expressly so stipulated: Snyder v. Spaulding, 57 Ill. 480; Dasel v. Jordan, 104 Mass. 407; 2 Lead. Cas. in Eq. 1112.
    A recovery may be had notwithstanding a failure to comply within the time fixed, unless it was intended to act as a condition precedent and avoid the contract if not fulfilled: Martin v. Lamb, 7 T. Rep. 5; Roach v. Dickinson, 9 Gratt. 156; 2 Smith’s Lead. Cas. 23.
    Mr. George Puterbaugit, for defendant in error;
    that the allegations and proof must correspond, cited Taylor v. Merrill, 55 Ill. 52; Crank v. Trumble, 66 Ill. 428.
    A resulting trust is not founded on a contract: Stephenson v. Thompson, 13 Ill. 186; Holmes v. Holmes, 44 Ill. 168; Williams v. Brown, 14 Ill. 201; Reeve v. Straw, 14 Ill. 97; Loomis v. Loomis, 28 Ill. 454; 4 Kent Com. 305; Perry v. McHenry, 13 Ill. 227; Fleming v. McHale, 47 Ill. 282; Remington v. Campbell, 60 Ill. 516; Walter v. Klock, 55 Ill. 362.
    A resulting trust can only arise at the time of the conveyance, and from the fact that money has been paid by. one and conveyance made to another: Alexander v. Tams, 13 Ill. 221; Rogers v. Murray, 3 Paige, 398; Perry v. McHenry, 13 Ill. 227; Greene v. Cook, 29 Ill. 186; Bruce v. Roney, 18 Ill. 67; Lear v. Choteau, 23 Ill. 39; Sheldon v. Harding, 44 Ill. 68; Lantry v. Lantry, 51 Ill. 458.
    Evidence to sustain a resulting trust must be clear and satisfactory: Mahoney v. Mahoney, 65 Ill. 406; Wilson v. McDowell, 78 Ill. 514.
    Verbal understandings between the parties will not create a trust: Allmon v. Pigg, 82 Ill. 149; Rogers v. Simmons, 55 Ill. 76.

      A voluntary agreement for the creation of a trust will not be binding so long as it remains executory: Padfield v. Padfield, 68 Ill. 210; Same case, 72 Ill. 326; Perry on Torts, § 98.
    Eelief from a mistake in fact will only be granted upon clear and satisfactory proof: Ruffner v. McConnel, 17 Ill. 217; Hunter v. Bilyeu, 30 Ill. 228; Selby v. Geies, 12 Ill. 69; Broadwell v. Broadwell, 1 Gilm. 599; Miner v. Hess, 47 Ill. 170; Moore v. Munn, 69 Ill. 591; Mills v. Lockwood, 42 Ill. 111.
    Eelief will not be granted from mistakes in the intention of only one of the parties: Ruffner v. McConnel, 17 Ill. 217; Sutherland v. Sutherland, 69 Ill. 481; Wilson v. Byers, 77 Ill. 76; Emory v. Mohler, 69 Ill. 221; Frye on Specific Performance, § 505.
    To justify reformation of an instrument on the ground of mistake, the evidence must be clear and satisfactory: Shay v. Pettes, 35 Ill. 360; McDonald v. Starkey, 42 Ill. 442; Palmer v. Converse, 60 Ill. 313; Cleary v. Babcock, 41 Ill. 271; Goltra v. Sanasack, 53 Ill. 456; Emory v. Mohler, 69 Ill. 221; Magnusson v. Johnson, 73 Ill. 156; Owen v. Blake, 44 Ill. 135; Price v. Karnes, 59 Ill. 276; Remington v. Campbell, 60 Ill. 516.
    Even had Bohanan done everything but formally deliver the deed, the locus jpoenitentice would remain, and a court would not enforce a delivery: Hoig v. Adrian College, 83 Ill. 267.
    To enfoi’ce a verbal agreement to convey land, the proof must be clear and strong: Bailey v. Edmunds, 64 Ill. 125; Allen v. Webb, 64 Ill. 342; Hartwell v. Black, 48 Ill. 301; Gosse v. Jones, 73 Ill. 508.
    A purchaser must have done everything on his part before he can ask a court to compel a conveyance: Cronk v. Trumble, 66 Ill. 428; McCabe v. Crosier, 69 Ill. 501; Mix v. Balduc, 78 Ill. 215; Phelps v. Ill. Cent. R. R. Co. 63 Ill. 468; Kimball v. Tooke, 70 Ill. 553; Brink v. Steadman, 70 Ill. 241; Walker v. Douglas, 70 Ill. 445.
    Where conditions are not performed within five months after the time stipulated, without any excuse therefor, a specific performance will be precluded: Mix v. Balduc, 78 Ill. 215; Hedenberg v. Jones, 73 Ill. 149.

      Specific performance is in the discretion of the court, and will not be decreed as a matter of course: Bowman v. Cunningham, 78 Ill. 48; McCabe v. Crosier, 69 Ill. 501; Fish v. Leser, 69 Ill. 394; Phelps v. Ill. Cent. R. R. Co. 63 Ill. 468; Lear v. Choteau, 23 Ill. 39; Alexander v. Hoffman, 70 Ill. 114; Ralls v. Ralls, 82 Ill. 243; Iglehart v. Vail, 73 Ill. 63; Gosse v. Jones, 73 Ill. 508; Proudfoot v. Wightman, 78 Ill. 553; Roby v. Cossitt, 78 Ill. 638; Taylor v. Merrill, 55 Ill. 52; Sutherland v. Parkins, 75 Ill. 338.
    Upon the question of a gift: Cranz v. Kroger, 22 Ill. 74; Pope v. Dodson, 58 Ill. 360; Walton v. Walton, 70 Ill. 142; Wadhams v. Gay, 73 Ill. 415; Badgley v. Votrain, 68 Ill. 25; Hoig v. Adrian College, 83 Ill. 267.
    The parol agreement was within the Statute of Frauds: Perry v. McHenry, 13 Ill. 227; Fleming v. Carter, 70 Ill. 286; Magnusson v. Johnson, 73 Ill. 156; Blount v. Tomlin, 27 Ill. 93; Updike v. Armstrong, 3 Scam. 564; Stevens v. Wheeler, 25 Ill. 300; Thornton v. Heirs of Henry, 2 Scam. 219; Shirley v. Spencer, 4 Gilm. 583; Laird v. Allen, 82 Ill. 43; Mason v. Bair, 33 Ill. 196; Keys v. Test, 33 Ill. 316.
    Possession, to take the case out of the statute, must refer to the contract relied upon: Story’s Eq. Jur. §762; Wood v. Thornley, 58 Ill. 464; Holmes v. Holmes, 44 Ill. 168; Peckham v. Berkham, 8 R. I. 17.
    Payment of the purchase money is not sufficient to take the case out of the statute: Temple v. Johnson, 71 Ill. 13; Cronk v. Trumble, 66 Ill. 428; Story’s Eq. Jur. §760.
    Possession must be accompanied by improvements and expenditure in consequence of the promise: Bright v. Bright, 41 Ill. 97; Kurtz v. Hibner, 55 Ill. 514; Wood v. Thornley, 58 Ill. 464.
    The agreement could not be performed within a year, and hence was within the Statute of Frauds: Olt v. Lohnas, 19 Ill. 576; Wilson v. McDowell, 78 Ill. 514; Comstock v. Ward, 22 Ill. 248; Warner v. Hale, 65 Ill. 395; Curtis v. Sage, 35 Ill. 22; Wheeler v. Frankenthal, 78 Ill. 124.
   Leland, J.

The questions of fact in this case have been so thoroughly and exhaustively argued, that we could but repeat what has been so well said if we were to give a detailed statement- of all the circumstances tending to prove the conclusions of fact at which we have arrived.

. Major S. Bohanan and his wife, and their son, James W. Bohanan, and his wife, were occupants of a dwelling house on the farm of the father, near Peoria. The farm was cultivated by the son, who was to account for one-half the proceeds as rent. For some reason, probably because the relations between the two females were so inharmonious as to render the joint occupancy unpleasant, James was disposed to seek relief from his supposed or real annoyances by emigrating to Nebraska. If he went, Hovenden, the father of his wife, promised to furnish him with a thousand dollars to start him in Nebraska. The father of James then agreed that if James would give up his contemplated removal and remain at home, he would purchase for him a forty-acre tract of land adjoining the home-farm and separated by the road only. So far all agree. There is, however, this difference between the parties to the suit: The father insists that James was to have only the remainder expectant upon the termination of a life estate in the father, and that James was to move on to the land, and during the life of the father account for one-half the products of the home-farm and of the forty. The complainants, who are the children of James, who was killed in October, 1872, insist that their father was to have the fee simple, and that he was not to pay any rent for the forty, but was to have what was raised on that as his own, though as to the home-farm, he was to account to his father for the one-half of the products. James gave up going West, and the forty-acre tract was purchased by his father for $2,000. The owners of the tract thus purchased, which was in February, 1871, asked $2,500.for the land, but finally agreed, if permitted to keep possession a year, to take $2,000, and gave a bond for a deed, dated February 25th, 1871, the deed to be made March 1st, 1872, and a deed was made bearing date February 19th, 1872, though not acknowledged by some of the grantors, who were minors, until they became of age afterwards. The name of the father, Major S. Bohanan, was inserted as purchaser both in the bond and in the deed—the father says intentionally—the grandchildren, complainants, say by accident and mistake of the scrivener Emery, who wrote them.

The grandfather, though he admits that the writings should have been so made as to create a right to the rents during his own life, with the remainder expectant after the termination of his life, in his son, claims that the actual moving on to the forty by the son, was a condition precedent to the son having any interest conveyed to him. He concedes in his evidence that if the son had moved on to the forty in the spring of 1872, to use his own language, “I would then give him a writing it should be his at my death.” The grantors or sellers of the land vacated and surrendered the possession in the spring of 1872, and James cultivated the land, and papered and painted, and made some other repairs on the house, and improvements on the land. He had, by the permission of the then owners, done some fall plowing in 1871, but no crop of small grain was put in, or if it were, it was plowed up the next spring, and the land planted with corn. And here is another controversy or circumstance affecting the merits of the controversy. There was some hay cut on the forty. The grandchildren claim that James had it all, and the grandfather claims that James kept half and gave him half. We think the weight of the evidence is that James was on the land, claiming all the crops—not the one-half only—and that he appropriated all the hay to his own use.- Unfortunately, before the corn crop was gathered, James was injured by a threshing machine, and died in October.

After the death of his son, the father claimed half the corn. The relations between him and his son’s widow being unfriendly, she went home to her father with her children, the complainants. The old gentleman kept half the corn, and the other half was administered upon as assets of the estate of the deceased son. The forty acre tract was not in the inventory. As the son at the time of his death had made arrangements to move into the house on the forty-acre tract, and would have done so in a short time if he had lived, and as he was in the actual possession of it, raising crops, repairing fences, fixing up the house, making gates, putting a pump in the well, as his own, etc., we are not disposed to consider the mere fact that death arrested him in his course before he actually moved into the house, as any valid reason why complainants should be denied the relief asked for.

The only real point of difference then, is this: Complainants claim that their father was to have a full title to the land. The defendant, their grandfather, claims that he was to have the rents for life, and the son the remainder expectant, subject to such life use, or life estate.

A great many authorities are cited to show that a court of equity can, where the evidence is strong enough, correct mistakes in the description of land in deeds, and also in the names of grantees, but as this is so well known among lawyers and judges, we do not deem it necessary to cite them all. Where the mistake claimed is in the description, the grantor has usually a deep interest in the case. When it is, as in this case, as to who ought to have been named grantee, the grantor is usually a disinterested spectator of the controversy.

We think the evidence in this case is strong enough to show that the name intended to have been inserted in the bond and in the deed, was that of “James W.” the son, and not “ Major S.” the father. The father has repeatedly so stated, and also that the land was his son’s. On several occasions he has asked to have the correction made by erasing the “ Major S.” and inserting “James W.” He requested the scrivener Emery to do so, who informed him that as the deed had been acknowledged, it would not be proper. Mrs. Standeven, one of the grantors, says that when she took the deed to him, he said it was wrong, and that he would go to Emery and have him change the name “ Major S.” to “James W.” The evidence of the intention that the son should have the fee simple, and of the mistake in the deed is so clear and strong, that we have no doubt a case for the interposition of a court of equity to correct it, is made out. It is true that the land was a gift from the father to the son, but the son having given up going west, and taking with him the one thousand dollars from his wife’s father, and also having taken possession of the given land, and expended money in improvements thereon as his own, though not to a large amount in value, makes the case one in which the mistake so clearly proved ought to be corrected in equity. We select a few of the many cases cited in the brief of plaintiffs in error. West v. Madison Agricultural Board, 82 Ill. 206; Hunt v. Frazier, 6 Jones, Eq. (N. C.) 90; Clayton v. Frost, 100 Ohio, N. S. 544; Moore v. Munn, 69 Ill. 591; Ex. Bank v. Russell, 50 Mo. 531; Wheeler v. Kirtland, 23 N. J. Eq. Reports, 13; Bright v. Bright, 41 Ill. 97; Leading Cases in Equity; notes to Lester v. Foxcroft, vol. 1, pt. 2, page 1047.

It may often be difficult to determine where the line is between slight and temporary improvements for the tenant’s own use, and those which are permanent and valuable. The present case, however, is not one for a conveyance under a parol gift, where the son could not be restored to his former position, but rather for the purpose of correcting the mistake in a deed, where the son and not the father should have been named as the grantee. In this case, however, the son cannot be restored to the position in which he would have been if he had taken his father-in-law’s offered $1000, and invested the amount in FTebraska land, instead of going on to the forty-acre tract, and expending money on it to improve it as his own, and not for his mere temporary convenience as a tenant. Without considering the matter at any greater length, we think the decree of the court below should be reversed, and a conveyance of the fee subject to dower decreed to be made to correct the mistake, unless upon another hearing the evidence should be materially different.

Reversed and remanded.


text:
    The Kankakee and Southwestern Railroad Company v. David Alfred.
    1. Arbitration—Award—Oath op arbitrators.—A submission of all differences between parties respecting a certain matter is sufficient basis for an award, and such award is- binding at common law, although the arbitrators were not sworn, the submission not requiring them to be sworn.
    2. Award under the statute—Waiver op oath.—Such an award would be good as a statutory award, although the statute required the arbitrators to be sworn. The parties may waive the statutory requirement, and proceeding to a hearing before unsworn arbitrators without objection, they will he deemed to have so waived the swearing.
    3. Recitals in award.—It is not necessary in this State that it should appear on the face of the award that the arbitrators were sworn.
    4. Impeaching award.—The affidavit of a person that he heard one of the arbitrators say that they were not sworn, is not sufficient evidence of that fact. An arbitrator should not be allowed to impeach his award by merely saying that he and his co-arbitrators neglected to be sworn.
    5. Extent op award.—Although in obtaining a right of way by a proceeding under the statute, the compensation should all be in money, yet under this submission of all disputes and controversies on the subject, the award as to fences and crossings was within the power conferred.
    6. Enforcement of award.—The submission being of all matters in dispute with regard to the right of way, the award was not one on which a judgment could properly have been rendered for a sum of money. The payment of the money and conveyance of the right of way were properly made concurrent acts, but the enforcement as a statutory award could only have been compelled under section eight of the statute.
    Appeal from the Circuit Court of Livingston county; the Hon. K. J. Pillsbury, Judge, presiding. Opinion filed May ' 2, 1879.
    Mr. S. S. Lawrence, for appellant;
    that the court had no. jurisdiction to entertain the motion to quash, cited Low v. Nolte, 15 Ill. 368; Moody v. Nelson, 60 Ill. 229; Foster v. Durant, 2 Cush. 545; Rankin v. Rankin, 36 Ill. 293.
    Mr. A. E. Harding, for appellee;
    in support of the motion, cited Rev. Stat.-1874, Chap. 10, §§ 1, 5, 6, 16; Buntain v. Curtis, 27 Ill. 374.
   Leland, J.

On August 22, 1878, the parties to this suit entered into a submission of that date as follows, which was duly signed and sealed:

“ Whereas, divers disputes and controversies have arisen and áre now pending and unsettled between David Alfred, of the township of Charlotte, in the county of Livingston and State of Illinois, of the one part, and the Directors of the Kankakee & Southwestern Railroad Company, of the county of Cook and State aforesaid, with regard to the right of way of the above named Railroad Company across the said lands of the said David Alfred, in said township of Charlotte, in the county and State aforesaid, being the northwest quarter of section thirty-four, and the northwest quarter of the southwest quarter of section thirty-four, township twenty-seven, range number eight, east of the third principal meridian, in the county of Livingston and State of Illinois.

“Mow, therefore, for the purpose of settling and determining such dispute and controversies, it is hereby mutually agreed and understood between the said parties, that the same shall be referred and submitted to the arbitrament and determination of Charles G. Greenwood, and L. T. Stoutemyer and D. B. Puffer, all of said county and State, or all three of them, if they can agree on said award; and the arbitrators, or all three of them, shall make and publish their award in writing, under their hands and seals, and deliver the same to the parties, or either of them who shall desire the same, on or before the 24th day of August, A. D. 1878. And it is hereby further agreed and understood by and between the said parties, that this submission shall be made a rule of the Circuit Court within and for said county of Livingston and State aforesaid, and that judgment may be entered in said court on said award according to the terms.

“ And it is hereby further agreed and understood, that the said party of the first part shall name one person as arbitrator, and the party of the second part shall name one party as arbitrator; that then these two arbitrators shall select the third party as arbitrator. And it is further hereby agreed and understood by and between the said parties, that the three parties named as arbitrators shall all agree on the award; and in case the three parties named cannot all agree in the award, that then the parties of the first and second part shall select other arbitrators.”

On the 24th of August, 1878, the arbitrators made and published the following award of that date, viz:

“ State of Illinois, ) ’ > ss. “ Livingston County, )

“ Whereas, we, the undersigned, Charles G. Greenwood, L. T. Stoutemyer and D. B. Puffer, of said county and State, having been duly selected as arbitrators, to settle the matters in controversy between David Alfred, of Charlotte township, in said county and State, and the directors of the Kankakee & Southwestern Bailroad Company, by virtue of the agreement entered into by said parties, a copy of said agreement being hereto annexed, and marked ‘ Exhibit A,’ having just gone over and carefully examined the proposed route of said railroad over the land described in ‘Exhibit A,’ the property of said Alfred, as shown by the plat of said land and proposed route of said road in ‘ Exhibit B,’ hereto annexed, and having heard the allegations and proofs of the said parties, and duly considered the same, do award and determine as follows:

“ That the said railroad company shall have the right to construct their railroad over the lands of said David Alfred, as shown by the plat on ‘ Exhibit B,’ hereto attached; and for such purpose the said David Alfred shall make to such company a good and sufficient deed to a strip of land eighty feet wide, across his said land, as shown by the proposed route of said road on ‘ Exhibit B; ’ and the said railroad company, as they are building said road, upon opening his fence on the north side of his pasture on said land; shall erect a good and sufficient fence to turn stock across.the said pasture on the west side of said road; and as soon thereafter as possible shall erect a good and sufficient fence to turn stock on each side of said road its entire length on said land; and shall keep such fences-in, good repair as long as the said route shall be used for railroad pur- ■ poses. Said company also to build a driveway for stock under their said railroad, at the place marked pass ’ in Exhibit B;: and also to build and keep in repair two crossings for teams over said road at the places marked £ crossings ’ in £ Exhibit B; ’ and shall also pay to the said David Alfred the sum of four hundred dollars, at any time fixed upon by them, upon giving said Alfred three days’ notice of the time when, and the place where, the money will be paid, and at the same time the said Alfred shall deliver to said company the deed aforesaid.

“ In witness whereof, we have hereunto set our hands and seals, this 24th day of August, A. D. 1878.

" C. G. Greenwood, [seal.]

“L. T. Stoutemyer, [seal.]

Daniel B. Puffer, [seal.]”

The plat mentioned was made and attached, and it is definite and unambiguous. The award was never filed by appellant, and the action of the court requested under Sec. 7 of Chap. 10, Rev. of 1874, p. 150, by motion for judgment, nor for enforcing the performance by rule, as provided for in section eight of that chapter; but the appellee gave appellant notice that he would move to set aside and quash it, and upon hearing the motion the court did set it aside and quash it. To which summary relief the appellant took exceptions, and appealed to this court.

The only evidence in support of the motion was the affidavit • of one Earned, that he heard the arbitrator, Stoutemyer, saj that the arbitrators were not sworn.

• Against the motion, Jeffery, the- superintendent of the railroad company, made affidavit that he tendered Alfred the $400 on October 1st, 1878, and that he liad kept the tender for him.

The grounds of the motion were:

1st. Arbitrators passed on matters not submitted to them,

2nd. Arbitrators exceeded their power.

3d. By their award they delegated to another part of the power conferred upon them by the submission.

4th. The award is uncertain.

5th. Because, by the award it does not appear that the arbitrators were sworn.

6th. Said award cannot be enforced.

On the question whether the action of the court below was right in setting aside and quashing this award—provided the case was one in which the court had jurisdiction to do so—all we can say is, that after a most careful examination of the submission and award, we are not able to discover any reason why the award is not a valid one, and binding upon the parties to it; and that consequently it should not have been set aside and quashed. Whether it was an award upon which a judgment could be rendered under section seven aforesaid, or a rule taken under section eight, is entirely immaterial. Whether the arbitrators were sworn or not, the award was valid and binding as a common law award, and appellant could not, merely because the arbitrators were not sworn, be deprived of its right to sue upon the award or file a bill to enforce its performance. The submission does not require the arbitrators to be sworn, and the award is therefore clearly valid as a common law award. Eisenmeyer v. Sauter, 77 Ill. 515; Smith v. Douglass, 16 Ill. 34; Weinz v. Dopler, 17 Ill. 111; Tynan v. Tate, 3 Neb. 388.

There is a conflict of authority as to whether a statute award is valid, if the arbitrators be not sworn, where the statute directs that they shall be. In Louisiana and Kentucky it has been held that the award is void if they be not sworn. Overton v. Alpha, 13 La. Ann. 558; French v. Mosely, 1 Littell, 247; Lile v. Barnett, 2 Bibb. 166. In blew Jersey it has been decided both ways. Ford v. Potts, 1 Halst. 393; Inslee v. Flagg, 2 Dutcher, 368. In New York, Missouri and Wisconsin, and perhaps other states, it is held, and we think with better reason, that the parties may waive the requirement of the statute, and that if they tacitly go on with the hearing before unsworn arbitrators, they shall be deemed to have so waived the swearing. Howard v. Sexton, 1 Denio, 440. Same case, 4 Comst. 157; Browning v. Wheeler, 24 Wend. 258, Tucker v. Allen, 47 Mo. 488; Hill v. Taylor, 15 Wis. 190; see also, Newcomb v. Wood, Sup. Ct. U. S. Central Law Journal, vol. 8, p. 175. It would certainly be a fraud for one of the parties, noticing the omission, to keep silent, and if the award should be favorable, to still remain silent, but if unfavorable, to move to set it aside because of the undisclosed omission; and we are not disposed to consider the neglect a fatal one, even on a motion for judgment under the statute. It is not necessary, in this State, that it should appear upon the face of the award that the arbitrators were sworn. Duncan v. Fletcher, Breese, 252. But the question about waiving the oath has not yet been raised in the Supreme Court, to our knowledge.

There is, however, no sufficient evidence that the arbitrators were not sworn. An arbitrator should not be allowed to impeach his award by merely saying that he and his co-arbitrators neglected to be sworn. Stone v. Atwood, 28 Ill. 30; Pulliam v. Pensoneau, 33 Ill. 375.

As we are unable to discover any defect in the submission or in the award, we think the court below erred in sustaining the motion, whether the award was one presented for judicial action under section seven or eight, or not.

The submission being of all matters in dispute with regard to the right of way, the award was not one on which a judgment could properly have been rendered for a sum of money. Rev. Stat. of 1874, p. 477, Sec. 10; Peoria, etc. v. Peoria, etc. 66 Ill. 174. The payment of the money and the conveyance of the right of way should of course be concurrent acts, and they were properly made so by the award. Its enforcement as a statute award could only have been compelled under section eight.

Even if we should concede that the award might in a proper case be set aside on motion of the party filing it, as well as on cross-motion when filed by the opposite party (see Morse on Arbitration and Award, 611), it is unnecessary to so decide in this case.

Though in obtaining a right of way by a proceeding in court under the statute, the compensation should all be in money (Ch. M. & St. P. Railway Co. v. Melville, 66 Ill. 329), under this submission of all disputes and controversies on the subject, the award as to fences and crossings was within the power conferred.

The parties have selected their own tribunal, and have agreed to abide by its decision, and we can perceive no good reason why they should not do so; and therefore the order of the court below is reversed.

Reversed.

Pillsbury, P. J., took no part in the decision of this case.


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    William Wilson et al. v. Philip Conlin.
    Gaming—Note given nor entrance eee.—The offer by an association of a purse of $600, divided into four parts, to be. given to the winning horses in a race to be run under the rules of the association, is not within the statute prohibiting gaming, any more than the offer of a premium at an agricultural fair ; and a note given for the entrance fee for one of the competing horses is not void under the statute as being a gaming contract.
    Appeal from the Circuit Court of LaSalle county; the Hon. Josiah MoRoberts, Judge, presiding. Opinion filed May 2,1879.
    Mr. L. W. Brewer, for appellants;
    as to what constitutes gaming within the meaning of the statute, cited Tatman v. Strader, 23 Ill. 495.
    As to the difference between an offered premium and a bet: Applegarth v. Colley, 10 Mees. & Wels. 723; Smith v. Alvord, Marion Co. Ind. Superior Ct, (unreported).
    Messrs. Duncan & O’Conor, for appellee;
    that this was a gaming contract within the meaning of the statute, cited Mosher v. Griffin, 51 Ill. 184.
   Sibley, J.

The facts agreed on in this case are, that the Earlville Park Association offered a purse of $600, divided into four parts, to be given to the winning horses, according to their degree of speed in a three minutes race, to be run under certain regulations imposed by the Association.

One of its rules required all persons desiring to enter horses to compete for the prize, to pay an entrance fee equal to ten per cent, on the whole sum to be given.

Appellee was permitted by the association to enter his horse “La Salle,” to participate in the race for the purpose of winning the purse. In consideration of that permission he executed to the treasurer of the society his promissory note, as follows:

“ $60.00 La Salle, August 18th, 1873.
“ Eight months after date, I promise to pay to the order Chas. M. Smith, Esq., Treas. sixty dollars at his office, value received, with interest at TO per cent, per annum.
Philip Conlih.”

This note was endorsed bona fide to the appellants before it became due, for a valuable consideration paid by them.

Conlin having failed to win the prize or any portion of it, refused to pay the note. Suit was instituted before a justice of the peace to recover the amount of it, and the cause taken to the Circuit Court of LaSalle county, where a judgment was rendered in his favor, from which the plaintiffs appealed to this court.

The only question to be determined, is whether the note was taken in violation of the statute of 1815 then in force, which reads that “ all promises, notes, bills,-bonds, covenants, contracts, agreements, judgments, mortgages or other securities, or conveyances made, given, granted, drawn, or entered into, or executed by any person or persons whosoever, where the whole or any part of the consideration thereof shall be for any money, . property or other valuable thing won by any gaming or playing at cards, dice or any other game or games, or by betting on the side or hands of any person gaming, or for the reimbursing or paying any money or property knowingly lent or advanced at the time and place of such play, to any person so gaming or betting, or that shall during such play so play or bet, shall be void and of no effect.”

If this was a gaming transaction within the meaning of the statute, then the note was void, and the decision of the Circuit Court correct.

Gaming is usually defined to be an act done by which something is hazarded on the event of a contest or issue.

The association certainly did not hazard anything by merely receiving an entrance fee. Mor could the simple offer of a premium to the swiftest horse be converted into a stake that in anywise depended upon the result of the race. If so, a prize offered for the finest animal, the handsomest baby, or the greatest production of intellectual effort, would render the offerer liable to the penalties of the statute. Such a construction must tend to discourage all rivalry in art, in science, in the products of the soil, .and the improvement in the various breeds known to the animal kingdom. This construction could not have been intended by the legislature. To require a fee in advance for the privilege of being admitted to contest the prize, is no more a gambling process than the offer of a prize to the successful party. There is nothing staked upon the result of a future contingency. The amount to be paid is fixed, and not in any event to be returned, increased or diminished. The law does not prohibit the trial of speed anymore than the trial of strength in an animal. Moreover, the party who might pay the entrance fee was under no obligation to engage in the race. How could the association know his object in procuring a right of entry—whether it was merely for the purpose of exhibiting the animal on the ground, or put him to a trial of speed? It simply demanded a fee before the horse could enter, and left the owner to determine what course he would after-wards pursue; or even whether he would avail at all of the privilege purchased was a matter in which the association had no concern. On the payment of the entrance fee, or the execution of a note taken in lieu of the money, the whole business was completed, and nothing left depending upon the happening of an event or the trial of an issue. The prize money was to be paid to the successful party, but the amount was certain, and did not depend at all on the number of entrances. Therefore the entrance fee had no direct connection with the payment of the prize money.

It was decided in Applegarth v. Calley, 10 Mees. & Wels. 723, that a sum of money advanced by a third person as a premium to encourage horse-racing was not a wager, and the deposit could be recovered in a suit by the successful party.

Tlie association in this case was not in the strict sense of the word a party engaged in the racing. It had no horse entered for that purpose, and none was run or proposed to be run on its account. Therefore being entirely indifferent as to the result, it occupied the position of a third party to those engaged in running their horses. It is said in Smith v. Alvord, a case decided by the Marion Superior Court, Ind., furnished by counsel of appellants, that “ The distinction between the offering a premium by a third person to the successful one of several contestants and a bet between such contestants, is obvious. In the former case, the person who offers the premium stakes nothing. In other words, his liability to pay does not depend upon any contingency. He binds himself absolutely to pay to one or the other of the contestants a certain amount, no matter how the contest may be decided. Although it may be uncertain to whom he will have it to pay, it is certain he will have it to pay to one or the other.’ There is nothing illegal in this, so long as the contest for which the premium is offered is not in itself unlawful.” This case has recently been affirmed by the Supreme Court of the State of Indiana, and not yet reported.

The case instanced by counsel for appellee of the game of keno, where a number of persons each pay into the banker a given sum of money, the amount to be won back by any of them being dependent upon the vagaries of the machinery operated by the banker, presents, it is believed (although we are unacquainted with the game), quite a different case from the one before us. So in respect to that of a given number of persons desiring to organize a horse-race, each one to stake a certain amount, and if one of them were to execute a note to the stakeholder for his stake, could the stakeholder recover in an action upon the note? It may be answered that if the stake were so placed for the purpose of being transferred rrpon the happening of a future contingency, the arrangement would contain one of the main ingredients of gaming. Indeed, the very idea of stakeholder implies one who holds a deposit to be disposed of according to the result of a future occurrence, which doubtless comes within the provision of the statute.

The case of Mosher v. Griffin et al. 51 Ill. 184, the only one referred to by appellee as opposed to the view here expressed arose on a claim made by the plaintiff for services rendered in fitting a mare for a race on wdiich money had been bet-, and also the board and shoeing of the animal. The court said that the training of the mare “ we suppose was for the purpose of gaming,” and yet reversed the cause for the reason that the court "below refused to allow the plaintiff his claim for board and shoeing. A distinction more refined than that we have attempted to draw between the Earlville Park Association in receiving an entrance fee and offering a reward to the successful horse, and a person betting on the result of the race to he run.

For the reasons indicated the judgment of the Circuit Court is reversed and the cause remanded.

Judgment reversed.


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    John M. Sprague et al. v. Warren S. Noble et al.
    Creditor’s bill—Conveyance in fraud of creditors.—T. executed to R. and D. his promissory note with warrant of attorney for §2,000, upon which judgment was confessed three days after its execution, and T.’s property levied upon and sold under the judgment. At the time of giving the note T. was not indebted to the payees, R. and D., but there was a contingent bability to them by reason of being securities on certain bonds executed by T. as principal. Held, that the judgment of R. and D., to be valid against claims of creditors of T., must have been founded upon a pre-existing indebtedness ; that there being nothing due them, the proceeding was a fraud upon the creditors of T., and as to them a nullity; that the money in the hands of the sheriff having arisen from a sale of T.’s goods under the judgment, and not deposited with him to indemnify R. and D. for being security on T.’s bonds, could not be held for that purpose as against T.’s creditors.
    Appeal from the Circuit Court of Will county; the Hon. Josiah McBobebts, Judge, presiding. Opinion filed May 2, 1879.
    Messrs. Haley & O’Donnell, for appellants.

      Mr. G-eobge S. House, for appellees.
   Sibley, J.

A creditor’s bill was here filed by John Sprague and Ezra Warner, setting up that Nicholas D. Tighe, on the 25th of June, 1877, executed a promissory note to John Ryan and William Davidson for the sum of $2,000, payable one day after its date. Accompanying this note was a power of attorney to confess judgment upon it. Afterward, on the 27th of June, judgment was confessed in the Will Circuit Court for the amount of the note and interest. -

Previous to the confession, the date of the note was, by consent of the parties to it, changed to the 20th of June. An execution issued on the judgment, and by Warren S. Noble, sheriff of the county, was levied June 27th, 1877, upon a stock of goods belonging to Tighe, and on the 9th of July following the sheriff sold the goods for $1040. A portion of this sum still remained in his hands undisposed of. It is further stated that the- note was executed by Tighe to the payees without any consideration, for the purpose of delaying the creditors of Tighe in the collection of their debts.

At the time of the execution of this note Tighe was indebted to the complainants in a considerable amount, upon which indebtedness they on the 5th of July, 1877, recovered a judgment against him for $105.01.

The next day an execution issued upon this judgment, and was placed in the hands of the sheriff to execute, but has never been satisfied, although the sheriff had remaining in his hands from the proceeds of the sale of the stock of goods owned by Tighe, the sum of $400, out of which the complainants insist their execution should be satisfied.

On the hearing of the cause Ryan testified that Tighe voluntarily gave him the note upon which judgment was afterwards confessed in his and Davidson’s favor, and at that time Tighe did not owe him anything, except a bill of about seventy dollars, which was subsequently paid. Davidson’s testimony was that, he knew nothing about the giving of the note by Tighe until Ryan told him of it, and that Tighe at the time was not indebted to him. It also appeared in evidence that both Ryan and Davidson had become security for Tighe upon some official bonds, but neither of them were able to state that they would be called upon to pay anything on account of their suretyship.

Upon this state of facts the Circuit Court denied the relief sought, and dismissed the complainant’s bill. From that decree an appeal was taken, and this court is now asked to reverse it, and direct the sheriff to satisfy the complainant’s execution out of the moneys in his hands derived from the sale of Tighe’s goods, which- we think should be done. Counsel for appellees claim that Tighe was a defaulter to a large amount, and Ryan and Davidson, with others, his securities on bonds now in litigation, judgment having been already rendered against a co-security for more than ten thousand dollars, and that the sheriff ought to be allowed to hold the money in his hands as a deposit, to indemnify Ryan and Davidson in ease they should be held liable to pay by way of contribution or otherwise.

To the first proposition it' is sufficient to observe that the record is destitute of any such proof as indicated; and as to the second, the answer may be that the money was not placed with the sheriff to hold as a deposit, but collected by him on an execution issued from a judgment confessed upon a note, voluntarily executed to the payees without any existing indebtedness. The difference between money thus obtained, and a deposit placed in the hands of another, by way of indemnity, is obvious enough. The judgment, in order to affect creditors, must have been founded upon a pre-existing debt due. Revised Laws 1874, § 66, Ch. 110, p. 782. In the present instance, there having been nothing due the payees of the note at the time it was given, nor when the judgment -was confessed, the whole proceeding was a fraud upon the creditors of Tighe, and as to them must be treated as a nullity.

The decree is therefore reversed, with direction to the Circuit Court of Will county to enter a decree directing the defendant, Warren S. Noble, to pay and satisfy .the complainant’s execur tion against Nicholas D. Tighe, delivered to him out of the money in his hands derived from the sale of Tighe’s stock of goods. Decree reversed.


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    Zenas Hartley v. Winfield Lybarger.
    1. Evidence—Admissions.—While it maybe true that evidence of admissions by parties is unsatisfactory, it is not necessarily and per se of that character. When an admission is made understandingly and deliberately, and is testified to by an intelligent, truthful witness, of good memory, such evidence is highly satisfactory.
    2. Instructions.—An instruction should not invade the province of the jury, by directing them what weight should be given to the testimony of any witness.
    3. Practice—Judgment against all.—In some cases where a defendant interposes a plea personal to himself, as infancy, bankruptcy or the like, the jury may sever their finding, but where defendants plead jointly it is not error to instruct the jury that a judgment must be against all or none.
    Appeal from the Circuit Court of Woodford county; the Hon. D. McCulloch, Judge, presiding. Opinion filed May 2, 1879.
    Mr. S. S. Page, for appellant;
    that evidence of admissions are often the most satisfactory evidence, cited Straubher v. Mohler, 80 Ill. 21.
    The plea of appellant, showing matter in discharge of his personal liability, a judgment could be rendered in his favor, and against the other defendants: 1 Chit. Pl. 45; Danforth v. Semple, 73 Ill. 170.
    Where the verdict is against the evidence the court will grant a new trial: Lowry v. Orr, 1 Gilm. 70; Scott v. Blumb, 2 Gilm. 595; Keaggy v. Hite, 12 Ill. 99; Baker v. Pritchett, 16 Ill. 66; Miller v. Hammers, 51 Ill. 175; Topping v. Maxe, 39 Ill. 159; Ray v. Bullock, 46 Ill. 64; C. & A. R. R. Co. v. Gretzner, 46 Ill. 74; Maynz v. Zeigler, 49 Ill. 303.
    Messrs. Chitty, Cassell & Gibson, for appellee;
    that where the evidence is conflicting the verdict will not be set aside, cited Lowry v. Orr, 1 Gilm, 70; Bloom v. Crane, 24 Ill. 48; Jenkins v. Brush, 3 Gilm. 18; Sullivan v. Dollins, 13 Ill. 85.

      The judgment should be against all or none: Kimnel v. Schultz, Breese, 169; Russell v. Hogan, 1 Scam. 552; Hoxey v. County of Macoupin, 2 Scam. 36; Tolman v. Spalding, 3 Scam. 13; Frink v. Jones, 4 Scam, 170; Wight v. Meredith, 4 Scam. 360; Faulk v. Kellums, 54 Ill. 189; Kimball v. Tanner, 63 Ill. 519.
    Defendant should have relied upon his personal defense alone: Tolman v. Spalding, 3 Scam. 13; Tidd’s Pr. 682; 3 Cowen, 374; 1 Chit. Pl. 45.
    Where substantial justice has been done the verdict will not be disturbed: Leigh v. Hodges, 3 Scam. 15; Gillett v. Sweat, 1 Gilm. 475; Elam v. Badger, 23 Ill. 498; Wheeler v. Shields, 2 Scam. 348; Calhoun v. O’Neal, 53 Ill. 354; Dishon v. Schorr, 19 Ill. 59; Schwarz v. Schwarz, 26 Ill. 81; Hall v. Growfe, 52 Ill. 421; Warren v. Dickson, 27 Ill. 115.
   Pillsbury, P. J.

Action of assumpsit on promissory note, brought by appellee against the appellant, Hartley, Thad. Page, and Joseph Morley. Morley failing to plead, default was entered as to him. Pleas of the general issue and payment were pleaded jointly by defendant, Page, and appellant. The appellant also filed separate pleas that he was surety, and that appellee extended the time of payment, etc., whereby he is discharged. A trial was had and a verdict against all the defendants, upon which judgment was rendered, and Hartley appeals.

The main contest in the case was, whether the appellee had extended the time of payment for a valuable consideration, without the consent of Hartley. Upon this point the principal defendant, Page, and the appellee were in conflict, and the appellant called one Salmon Allen, who testified, in substance, that he heard appellee tell Page that he, appellee, had extended the time twice, and that Page had paid him for both extensions, the last time giving him three dollars.

The fifth instruction given for the plaintiff below, was directed at this testimony of Allen, and designed to destroy its effect with the jury. Instructions should not invade the province of the jury by directing them what weight should be given to the testimony of any witness.

The remarks of. Mr. Justice Walker in Straubher et al. v. Mohler, 80 Ill. 21, are very much in point in this case:

“ Whilst it may be true as a general rule that evidence of admissions by parties is unsatisfactory, it is not necessarily per se of that character. It may be, and frequently is of the most satisfactory of all verbal testimony. When an admission is made understandingly and deliberately, and is testified to by an intelligent, truthful witness, of good memory, all know that such evidence is highly satisfactory, and free from suspicion; but when casually made, and to an inattentive person, of bad memory, or such a want of apprehension as to make it doubtful whether he fully understood or heard what was said,, or his manner shows that he is strongly biased in favor of the party calling for the admission, then, of course, such evidence is weak, and should he closely scrutinized. But these are circumstances for the consideration of the jury.”

To the same effect are the cases of Young v. Foute, 43 Ill. 33, and Frizell v. Cole, 29 Ill. 465.

Under the authority of these cases, the fifth instruction was erroneous and should have been refused.

As this case must he submitted to another jury, we refrain from expressing any opinion upon the merits of the case.

It is urged by counsel for appellant, that the court erred in instructing the jury that they must find against all the defendants or none, and refusing to instruct that they could find in favor of Hartley and against the others. Under the pleadings in this case we see no error in such action of the court. In some cases, where one defendant interposes a plea personal to himself, as infancy, bankruptcy or the like, the practice is allowable to permit the jury to sever in their finding.

It is not necessary to determine whether such instruction would have been improper had Hartley severed in his defense in all his pleas, but having joined with his co-defendant in the plea of the general issue and payment, we are of the opinion that the instruction was right under the issues formed.

For the error indicated, the judgment must he reversed and the cause remanded. .

Reversed and remanded.