author: Per Curiam.

text:
    Rosalia E. Kreitz v. Elisa B. Hamilton, Assignee, et al.

      Mortgages — Trust Deed — Foreclosure—Limitations—Sections 11 and 16, Act of 1872.

    The statute prohibiting the foreclosure of mortgages, unless within ten years after the right of action accrues, does not prevent foreclosure after the expiration of ten years, where the note or other evidence of indebtedness secured has been extended by payment or new promise. The right of foreclosure extends until such indebtedness is barred.
    [Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of Adams County; the Hon. William Haesh, Judge, presiding.
    Hessrs. H. S. Davis and Cabteb & Govebt, for appellant-
    Where the statute of limitations barred all right of action on a promissory note if such action was not brought within sixteen years after it accrued, it was held that the right to foreclose a mortgage given to secure such note was also barred; that as a general rule, courts of equity will follow the law in applying the statute of limitations; and so long as the remedy at law exists on the note, the remedy by foreclosure of the mortgage in equity also will exist. Harrison v. Mills, 28 Ill. 44; Pollock v. Mason, 41 Ill. 516; Emery v. Keighan, 88 Ill. 482; Emery v. Keighan, 94 Ill. 543; Greenman v. Greenman, 107 Ill. 404; McMillan v. McCormick, 117 Ill. 79; Wood on Limitation of Actions, p. 117.
    Erom the cases cited it appears that long before the passage of the statute of 1872 there has been a statute of limitations in force in this State applicable to mortgages, as effectual to bar a remedy by foreclosure as, by suit at law, to recover the debt; the only difference being that the time prescribed was sixteen years instead of ten years, as now provided. These cases hold that the mortgage is a mere incident of, and must follow, the debt. And in Delano v. Bennett, 90 Ill. 536, it was held that a conveyance by the mortgagee, without assignment of the debt, is a nullity.
    Messrs. Berry & Euler, for appellees.
    The bearing of Sec. 11 on mortgages executed after its taking effect is yet undecided in this State. It furnishes an express limitation to the action of foreclosure. The main question at issue here is not so much what effect this section has, but rather whether it shall he given any effect. In considering this, regard should be had to the legislation, judicial decisions and policy of this State.
    We contend that the object of this statute was to make the liens of mortgages and trust deeds of definite duration and that such liens and their duration should be a matter of public record. The act is remedial and should he liberally construed.
    Statutes of limitation should be construed favorably. Wood on Limitations, Sec. 4.
    The law works no hardship or injustice in this case. It was appellant’s own folly not to have foreclosed her lien before the ten years were up. The court in this case are not dealing with a presumption batan express limitation, and they should give it effect as a statute of repose and for the security of title. Hubbard v. Stearns, 86 Ill. 35.
    If the lien is not barred until the debt is barred, as appellant contends, it was not necessary to pass Sec. 11 merely to apply the ten years limitations to mortgages and deeds of trust, for that is accomplished by Sec. 16. To so hold would leave the mischief of the old law unremedied, and the life of the lien uncertain and unascertainable of . record, and would render Sec. 11 nugatory and of no effect whatever; passing it, then, was a vain and useless thing.
    The intent and purpose of the Legislature should be enforced. Their object was to effect a change in the law, and to bar foreclosure ten years after the cause of action accrued, and this was done by section eleven in words as plain as the English language can make it. It means what it says or it means nothing-. There is no room for construction. The court should enforce it and not render it nugatory.
    “ Where a statute is expressed in clear and precise terms, where the sense is manifest, and leads to nothing absurd, or where its provisions, if literally applied, would work no palpable injustice, nor contravene any imperative public exigency, there can be no reason not to adopt the sense it naturally presents. In such cases there can be no necessity for restricting its operation, and the statute should be enforced as it i's plainly written. Newell v. People, 7 N. Y. 9; Potter’s Dwarris, 145; Chicago, M. & St. P. R. R. Co. v. Dumser, 109 Ill. 402; Law v. People, 84 Ill. 392.
    Because the law is that when the debt is barred the mortgage is also barred, it by no means follows that the mortgage lien may not be barred before the debt is barred. Clearly it was competent for the Legislature to separate the two, and bar the lien first, and there is nothing in reason or public policy why it should not do so.
    Action on the mortgage may be barred though debt is not barred. Eubanks v. Leveridge, 4 Sawyer, 274.
   Per Curiam.

The questions presented by the record on this appeal arise upon the demurrer of Elisha B. Hamilton, assignee of the Union Bank of Quincy, Maurice Kelly and Catharine Eisenstein, guardian, to the amended cross-hill of Rosalia E. Kreitz, and the decree sustaining said demurrer and dismissing said cross-bill.

The amended bill, filed February 28, 1887, by said Elisha B. Hamilton, assignee of the said Union Bank of Quincy, was to foreclose a mortgage known as the Union Bank mortgage, dated Hay 1, 1881, made by John M. and Mary P. Kreitz to the Union Bank of Quincy, upon the west one hundred (100) feet of lot (6), and the north seventeen (17) feet of the east sixty-eight (68) feet of said lot six (6), in block five (5). in the original town, now city, of Quincy, Adams county, Illinois, to secure the payment of three notes of even date, made by said John M. and Mary P. Kreitz to said Union Bank of Quincy or order, for the sum of §1,000 each, due respectively one, two and three years after date, hearing six per cent, interest from date. It was therein further alleged, among other things, in substance, that Maurice Kelly and Catharine Eisenstein, guardian, defendants to said bill, were the legal holders and owners respectively of said first and third notes, in the order of maturity, for §1,000 each, and that said Hamilton, as such assignee, wras the legal holder of said second note for §1,000. The amended bill also charged that the debt secured by the. trust deed of November 23, 1872, on the west one hundred (100) feet of said lot six (6), claimed by said Rosalia E. Kreitz, had been fully paid; that said trust deed was fraudulent and void, and should be canceled of record, and that it was barred by the statute of limitations, and asked for relief by foreclosure and sale under said Union Bank mortgage. The amended cross-bill of Rosalia E. Kreitz, filed April 12, 1887, seeks to foreclose a trust deed dated November 23, 1872, on the west one hundred (100) feet of said lot six (6), block five (o), in the original town, now city, of Quincy, Adams comity, Illinois, made by said John M. and Mary P. Kreitz and Herman and Elizabeth Moecker to Edward H. Buckley, as trustee, to secure the payment of a note dated November 23, 1872, made by said Herman Moecker and John M. Kreitz, payable to the order of James M. Rice, for the sum of §3,000, due two years after date, bearing ten per cent, interest, payable semi-annually. She therein further alleges, in substance, that said note came to her hands by assignment; that its principal is wholly unpaid, but that its makers paid the interest thereon up to ¡November 23, 1883, and had the same indorsed on the note; and that they repeatedly, within the past ten years, acknowledged said indebtedness, and promised to pay the same; and that the premises covered by said trust deed have at no time, since ¡November 23,1872, been held or occupied adversely to said trust deed, but always in full recognition of the same. She makes Elisha B. Hamilton, assignee as aforesaid, Maurice Kelly and Catharine Eisenstein, guardian, among others, defendants to said amended cross-bill, and charges that said defendants “have, or claim to have, some right or interest in said real estate described in said trust deed, or some part thereof, as purchaser, mortgagee, judgment creditor, lessee or otherwise.” She further therein claims priority over the Union Bank mortgage and all other liens, and asks for foreclosure and sale of said premises under said trust deed.

To said amended cross-bill the holders of the notes secured by the Union Bank mortgage, appellees here, demurred generally, also assigning as special causes of demurrer that tlie cause of action relied upon in said cross-bill, and arising upon said trust deed, did not accrue within ten years before the beginning of said original or cross-litigation, and that the claim of said amended cross-bill was stale and barred by Laches and lapse of time.

The court sustained the demurrer and dismissed said amended cross-bill, from which order said ¡Rosalia E. Kreitz appeals.

For the purpose of this appeal, all facts well pleaded in said amended cross-bill on demurrer thereto are to be taken as true.

The bar of the statute relied upon is Sec. 11 of the statute of limitations, approved April 4, 1872, in force July 1,1872, which section is as follows:

“¡No person shall commence an action or make a sale to foreclose any mortgage or deed of trust in the nature of a-mortgage, unless within ten years after the right of action or right to make such sale, accrues.”

The trust deed and note was executed November 23, 1872, and the note matured, allowing for days of grace, November 26, 1874. Appellant’s position is that, notwithstanding said section, her trust deed is not barred until the debt it secures is barred, and that payments of interest on the debt extend the lien of the trust deed as well as the running of the statute on the note.

Appellees insist that the action to foreclose the trust deed was barred ten years after that right of action accrued, i. e., the maturity of the note, and that it was not continued or affected by interest payments on the debt, and that therefore tlxe appeal should be dismissed and the decree of the Circuit Court affirmed.

The record squarely presents this question: What effect has See. 11 of the limitation act upon a mortgage or deed of trust executed after that act went into force and operation? The propriety of the decision of the court below, in sustaining the demurrer to appellant’s cross-bill, is to be determined by the true construction of Sec. 11 of the limitation act of 1872.

In the recent case of Schefferstein v. Allison, 123 Ill. 662, this question is decided, and according to the doctrine there announced, it was error to sustain the demurrer.

The decree of the Circuit Court will he reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Wall, J.

license: Public Domain

text:
    Gustavus C. Pearson v. James Sanderson.

      Landlord and Tenant — Improvements by Lessee — Value of — Appraisal at Termination of Lease — Notice—Arbitration—Instructions-—Interest.
    1. An agreement between landlord and tenant whereby the former is to take, at the termination of the lease, improvements erected thereon by the latter and pay therefor the sum named by appraisers to be mutually agreed upon, is not a submission to arbitration, and no notice to the parties is necessary before making the appraisement, unless the lease so provides.
    2. In the ease presented, interest was properly allowed on the amount of the appraisal after notice to the defendant and request t.o pay such amount. ,
    [Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of Vermilion County; the Hon. C. B. Smith, Judge, presiding.
    Mr. J. B. Mann, for appellant.
    The view taken by .appellant, of this case, is that the so-called appraisers were in fact, arbitrators, and that their actions should have been in all respects governed by the rules affecting arbitrations. It was upon this theory that the special pleas were interposed, and the action of the court in sustaining the demurrer to such pleas is the principal error relied upon by the appellant for a reversal of the judgment below.
    The law has no regard for the particular nomenclature adopted by parties in entering into contracts, but will give to the language employed its proper legal signification. If, _ therefore, the sc-called appraisers are in fact arbitrators, the courts will so treat them and define their duties accordingly. Van Cortland v. Underhill, 17 Johns. 405 ; Lanman v. Young, 31 Pa. St. 306.
    • The rule requiring notice of the hearing is without exception, and if there has been no such notice there can not be a legal hearing or a valid award. Morse on Arbitration and O n Award, 118.
    The appraisers in the case at bar had necessarily to decide many more questions than the mere value of property. Before any award could possibly be made by them, it was imperatively necessary that* they should agree upon the following matters. (1.) What improvements were made on the leased premises by appellee? (2.) Were such improvements permanent? (3.) Were such improvements authorized by the terms of the lease? (4.) What was the fair cash value of such improvements, and as an incident thereto what value did they add to the premises?
    I think it is giving to their duties no undue or strained construction, to say that they were charged with the determination of each of said questions. The lease provides that the persons to be chosen shall determine the then cash value of the permanent improvements made by the lessee, etc. It therefore was very material that they should determine and decide who made the improvements.
    Mr. F. Bookwalter, for appellee.
    An arbitration is defined to be the investigation and determination of matter or matters of difference between contending parties, by one or more unofficial persons chosen by the parties, and called arbitrators. 3 Sharswood’s Bl. Com. 16; Norton v. Gale, 95 Ill. 533.
    It will be seen that arbitrations refer to matter in dispute between contending parties, at the time the contract is made, in regard to the selecting of arbitrators. The appointment of appraisers is for the purpose of avoiding any difference between the parties. In the case at bar the parties contemplated by their contract that appellee should go upon appellant’s premises and occupy them for five years; in the meantime that he should make permanent improvements thereon, and that all of said improvements that he left on said premises at the end of the five years should be paid for by appellant, at a price fixed by appraisers. How, it will be seen that the element of matters in dispute is absent, and also contending parties, as contemplated in cases of arbitration. There was no necessity for it, nor was it intended by the parties to the contract, nor would it have been proper for the appraisers to have been sworn like arbitrators are usually sworn, nor would it have been the proper thing for the appraisers to do to have had witnesses sworn and proceeded as arbitrators. If they had done so then the appellant would have objected more strenuously than he now does. He -then, no doubt, would have contended that they were acting only as appraisers. Appellant at no time asked the appraisers to proceed as arbitrators. Calling this matter an arbitration and the appraisers arbitrators is purely an afterthought on the part of the appellant.
    That the matter in question was not an arbitration and not to be governed by the rules regulating arbitrators, lias been conclusively settled in this State by a long line of decisions. The Board of Trustees of the Illinois and Michigan Canal v. Lynch, 5 Gilm. 521; McAvoy v. Long, 13 Ill. 147; Snell et al. v. Brown, 71 Ill. 133; Korf v. Lull, 70 Ill. 420; Norton v. Gale, 95 Ill. 533.
    Ho notice is necessary to the parties, because they are bound to take notice of the acts of the appraisers. McAuley v. Carter, 22 Ill. 53; Norton v. Gale, 95 Ill. 533.
    The finding of the apjwaisers draws interest at the rate of six per cent, per annum from the time it was made. Downey v. O’Donnell, 92 Ill. 559.
   Wall, J.

This was an action of assumpsit, by appellee against appellant. Appellee recovered a judgment for §1,724.71 and costs. The main question in the case arises upon the construction of the contract set out in the declaration.

That contract was executed by the parties to the suit on the 2Sth of April, 1881, and provided that in consideration, etc., the appellant leased to appellee for the term of five years certain lots in Danville, upon which to erect a mill and dwelling house. It also provided, among other things, that at the end of the term the value of the improvements should be fixed by appraisers (each party to select one, and the two, if not able to agree, to select a third), and the valuation decided upon by two of the three appraisers should determine the amount to be paid by appellant to appellee for said improvements. It is clear from the language of the contract, which is thus summarized, that the lessor was bound to pay for the improvements the sum ascertained by such appraisement. It is insisted by appellant that the proceeding thus provided for was an arbitration in legal effect, and that it was necessary to the validity of the appraisement that notice should be given of the investigation, and that, in all respects, the actions of the appraisers should be governed by the rules affecting arbitrations. The Circuit Court held otherwise, and we concur in the ruling. The subject involved was very fully discussed in Norton v. Gale, 95 Ill. 533, and we deem it unnecessary to say more than that in our judgment the principles there and nouneed are decisive of this case. Stose v. Hussler, 120 Ill. 433, and cases there cited. This disposes of the controversy in chief. There were some questions of fact, which were solved by the jury against appellant, but they call for no special notice here.

It is argued the court erred in advising the jury by instruction that the plaintiff might recover the appraised value of all permanent improvements, and that in this respect the inquiry should have been limited to the value of tiie mill and dwelling house. "We think the court properly construed the contract in this respect, and that, as applied to the facts in proof, the instruction was right. It is also insisted there was error in allowing interest on the amount of the appraisement, after notice to the defendant and request to pay. In this we are disposed to agree with the Circuit Court. Downey v. O’Donnell, 92 Ill. 559; Sec. 2, Ch. 74, R. S. The judgment will be affirmed.

Judgment affirmed.


author: Pleasants, J. Pleasants, J.

text:
    D. R. Klinger, Impleaded, etc., v. The People.

      Drainage — Formation of Districts — Highway Commissioners — “System of Drainage” — Quo Warranto — Acts of 1819 and 1885 — Judgment of Ouster — Costs.
    1. The drainage acts of 1879 and 1885 do not contemplate the formation of districts so large as to require different systems of ditches in order to drain the lands therein embraced.
    2. Upon an information in the nature of a quo warranto charging that the respondents usurped the office of drainage commissioners, it is held: Thar no sufficient petition was presented for a district comprising four systems of drainage; that the court below properly entered judgment of ouster and for costs; that all the land in the town was improperly included, as but a small portion thereof would be benefited by the same system of drainage; and that such a district could not be administered under the acts of 1879 and 1885.
    [Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of Piatt County; the Hon. J. F. Hughes, Judge, presiding.
    Messrs. A. T. Pipher and S. B. Beed, for appellants.
    Messrs. Charles Hughes and J. L. Eat, for appellee.
   Pleasants, J.

This was an information in the nature of a quo warranto filed by the State’s attorney of Piatt county against Klinger, Yandervort and Wooding, charging, in separate counts, that respondents' usurped the office of drainage commissioners of the town of Blue Eidgc, of drainage commissioners of drainage district number one, of said town, and of drainage" commissioners of, in and for certain pretended drainage districts or systems of drainage which they have designated as drainage systems number one, number two, number three and number four, respectively, and without right or authority have proceeded to lay out, survey, plat and construct ditches therein, and to levy taxes, assessments, etc., therefor.

Ecspondents filed a plea averring that Blue Eidge was a town in Piatt county; that said county has for years been under township organization; that in 1883 there was presented to the town clerk of said town, with the requisite bond, a petition signed by a majority of adult owners of all the Hnds in said town, being also owners in the aggregate of more than one-third of all said lands, praying that a drainage district be organized, embracing all the lands in said town, for the purpose in that behalf in the statute mentioned; that due notice thereof was given to the then commissioners of highways of said town; that they proceeded regularly under the provisions of the Drainage Act, approved May 29, 1879, to organize, and did so organize the district prayed for, as Drainage District ¡Number One, in said town; that no other drainage district has been organized in said town, and that respondents are noAv the commissioners of highways of said town. The plea set out at great length the several stejDs and proceedings taken by all concerned in the alleged organization, and the several provisions of the act above referred to; and of that approved June 27, 1885, by which, as they claim, the same were respectively directed or authorized.

A demurrer to the plea, assigning divers causes therefor, was sustained. ¡Respondents Vandervort and Wooding then filed a disclaimer, and declined to defend further, and Klinger abiding by the plea, a judgment was entered of ouster and for costs againstKlinger and Vandervort,Wooding having onlyjust succeeded Wheeler (a former co-respondent) as commissioner of highways, and been substituted for him as respondent herein. From that judgment Klinger appealed and brings the record here for review.

On the part of the people it is contended that the plea shows the district therein referred to never had a legal organization, and farther, that if it had, the respondents abandoned it, and have undertaken, of their own motion, without any petition, to create four distinct districts, under the name of “ systems of drainage.”

The idea states that upon the organization of said district the commissioners, in the discharge of their duties, went upon and examined all the lands within it to determine upon a plan of drainage therein, and upon such examination, being aided therein by a competent engineer, found the surface of the land in said district, embracing the whole town, was such as to constitute four distinct water sheds, having different directions for the natural flow of the surface waters thereof respectively; that the highest land was near the center of said district, east and west, but considerably south of the center, north and south, and extended thence northward, from which divide the natural flow of such water was about as follows: from the east and southeast parts of said district to the south, or east of south into Madden run, from the northeast part to the northeast through a natural depression leading into the Sangamon river, and oh the west side of the divide from the northern part to the southwest by way of Trinkle slough into Salt creek, and from the central and southern parts, also to the southwest, into Goose creek; that to joro vide a complete system of drainage for the district it would be necessary to construct main ditches for outlets, commencing at the divide near the center of the township and loading respectively into Madden run, Sangamon river, Goose creek and Salt creek; that no one continuous line of ditch could be constructed so as to provide efficient means of drainage for the lands embraced.in the district as organized; that the commissioners determined upon a plan of work for chief or main outlets for the water of the district which flowed by way of Goose creek and Trinkle slough, and found it would require four main ditches as outlets to four separate areas of low and wet land haring divides or swells of higher land between them — two of said areas flowing their water into Goose creek but discharging at different points, and the other two into Trinkle slough— but also at different jDoints.

From these statements in the jflea we understand it to be conceded, as it clearly is in the argument, that it is not practicable to connect or combine a system of ditches that would drain the land of the district as organized, or any two of the four water sheds first above mentioned. Each of these will require a system of drainage entirely separate from, and independent of, those of all the others.

The question, then, is whether the statute authorized the organization into one drainage district of lands so related, or rather, so unrelated with respect to drainage. We are of opinion it did not. We understand that the “ system of combined drainage ” is distinguished by the statute from the system of “individual drainage ” which is therein recognized though not specifically so named. An individual proposing to drain his own lands at his own expense may do so, if necessary, through the lands of others, whether the latter are thereby benefited or not, making just compensation therefor as the law provides. The drain or drains construcied for that purpose will constitute a system no less than in the case of combined drainage, but it will require no district organization. But where there are lands so related that the same system will benefit ail of them more or less, and it is proposed to construct it at the expense of all the owners in proportion to the benefits to their respective lands received, they may proceed to accomplish it without.resort to condemnation in the mode prescribed. That is the system of combined drainage. The combination referred to is not of ditches, though that will generally be required, but of contribution to the expense of constructing, extending, improving and maintaining them. Here organization is necessary, since numbers of persons have a common, though not necessarily an equal interest. AH who are so concerned have a right to be heard, and may favor or oppose the proposition, as each sees fit. If the requisite proportion in number and interest of the owners of such land petition for it, a- district is formed which is by the law intended to embrace the lands to be benefited, and no other. Commissioners are provided to plan and execute, the lands are classified according to the relative benefit they receive, and assessments are made upon them in that proportion for the necessary means; and so the work is dune and maintained.

Without referring specifically to the pro visions of" the statute or stating more minutely its practical operation, it must be obvious from this general view of the scheme, that for a good many reasons the district number one, in this case so-called, can not be such as is authorized or contemplated by it. As attempted to be organized it is uncommonly large of its class, embracing aboxxt sixty-foxxr sections of land and including an incorporated village which has by law independent powers of its own in respect to drainage, besides mxxch that needs no dx-ainage and will not be drained. The ditch pi-oposed for the northeastern water shed will be about five miles in length-It will not of itself, nor can it by any connection or combination be made to aid in draining an acre of either of the others. On principle, the owners of lands in the southwestern water shed should have nothing to say about, nor should their lands bo taxed for it. So of those owning lands in each of those four water sheds as to all the others. We think the statute conforms to this principle, and therefore that the plea shows no proper or sufficient petition for a district comprising the whole four, or either of the areas affected by the separate systems respectively; that all the lands in the town can not be embraced in one district, because so small a portion of them would be benefited by the same work or system of works that the affairs of such a district could not be administered according to the provisions of the act of 1879, or of that of 1885. And hence the proceedings taken for its organization can not have been validated by the later act.

Judgment affirmed/.

D. R. Klinger, Impleaded, etc. v. The People.

Pleasants, J.

This is a companion of case Bo. 76, on the docket of this term. The information here challenges the authority of appellant and his co-respondents in respect to their proposed work in the “ drainage system number four,” of district number one, therein mentioned. For reasons given in the opinion filed in that case, we hold that the plea shows none whatever in respondents as drainage commissioners of any district, or as commissioners of highways or otherwise, for the work in question.

Judgment affirmed.


text:
    Samuel R. Tilton, Administrator, v. Josephus Yount, Executor.

      Administration — Negotiable Instruments — Note—Statute of Limitations— Acts of 1849 and 1872 — Sec. 101, Statute of Wills of 1845.

      1. The statute of limitations of 1872 is not applicable to contracts of prior date.

      2. As a general rule, where a temporary incapacity to sue grows out of a particular provision of a statute, such disability interrupts the running of the statute of limitation».
    3. In a proceeding to probate a note dated May 9, 1870, as a claim against the estate of the maker, the inability of the holder to maintain suit thereon against the administrator, for a period of one year, under Sec. 101, statute of wills of 1815, interrupted the running of the statute of limitations during the period of such inability.
    [Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of Vermilion County; the Hon. C. B. Smith, Judge, presiding.
    Mr. George R. Tilton, for appellant.
    Messrs. F. Bookwalter and Ed. Winter, for appellee.
   Wall, J.

This was a claim filed for probate in the County Court upon a promissory note signed by Milton Davis, bearing date May 9, 1870, payable six months thereafter to J. T. Yount. Davis died intestate July 30, 1886, and letters of administration were granted on his estate to Samuel R. Tilton, on the 12th day of November, 1886.

Yount, the payee, died testate on the 21st day of November, 1886, and his executor qualified on the 24th of the same month. The administrator of Davis appointed the January term, 1887, of the County Court, which was held on the 17th of the month, for the adjustment of claims, and on that day the note was presented for probate. The County Court rejected the claim and an appeal was prosecuted to the Circuit Court, where, upon a hearing de novo, the claim was allowed. The administrator of Davis has brought the case by appeal to this court.

The only defense urged is the statute of limitations. When the note was executed, in 1870, the period of limitation upon such contracts was sixteen years. By the act of 1872 this was changed to ten years; hut, as was held in Smart v. Morrison, 15 Ill. App. 228, Blackburn University v. Weir, 21 Ill. App. 29, and Means v. Harrison, 114 Ill. 248, this act does not in this respect operate upon contracts previously entered into.

When the note was offered for probate more than sixteen years had elapsed since its maturity. In opposition to the apparent bar of the statute of limitations the appellee seeks to interpose Sec. 19 of the act of 1872, which provides that ' “if a person against whom an action may be brought, die before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced against his executors or administrators after the expiration of that time, and within one year after the issuing of the letters testamentary or of administration,” and that “if a person entitled to bring an action die before the time limited for the commencement thereof, and the cause of action survives, an action may be commenced by his representatives after that time and within one year after his death.” These provisions are not found in the statute of limitations in force prior to the act of 1872. We are of opinion that this Sec. 19 was, with the rest of the act, designed to affect no contracts existing when the enactment was made, and in view of what has been said in the cases above cited there is no occasion to elaborate upon the point.

These provisions are therefore not applicable to the case. Appellee, however, cites and relies upon the following provision contained in Sec. 101 of the statute of wills of 1845, Gross’ Stat., Sec. 109, Chap. 30:

“Ho action shall be maintainable against any executor or administrator for any debt due from the testator or intestate, until the expiration of one year after the taking ou’t of letters testamentary or of administration, except as is herein excepted, nor shall any person, suing after that time, recover costs against such executor or administrator, unless a demand be proved before the commencement of such suit; but in all other cases, both executors and administrators shall be liable to pay costs as other persons; ” and insists that it prevents the statutory bar. This provision was in force up to 1872, when it was repealed by the present statute entitled, Administration.” The repealing clause expressly saves and excepts “All suits that may be pending or any rights that may have accrued.” As to suits then pending and rights then accrued the provision remained in force.

Eights had then accrued in reference to the contract here involved, and the provision is operative so far as those rights are concerned. By virtue of this provision no action could be maintained against the administrator of Davis for one year from the date of his letters of administration.

The statutory limitation of sixteen years had not fully run when Davis died, but the period was complete on the day after the letters were granted, the days of grace being allowed-From the death of Davis until the appointment of an administrator there was no person to be sued, and for one year after such appointment no action was maintainable. Whether the interval between the death of the debtor and the grant of administration should be deducted from the period of limitation, in the absence of a statutory exception, it is unnecessary to decide. In this connection, sec Baker v. Brown, 18 Ill. 91; 7 Wait’s Actions and Defenses, 278; Arkens v. Bailey, 5 Eng. 584; Etter v. Finn, 12 Ark. 632; Toby v. Allen, 3 Kan. 399; Abbott v. McElroy, 10 Smedes & M. 100. Fortunately for the creditor in this instance, before the statute had completely run, letters of administration were issued, and then by positive provision of statute there was a suspension of the cause of action.

“As a general rule, where a temporary incapacity to sue grows out of some particular provision of a statute, the time during which such temporary disability continues should be excluded from the computation.” Angelí on Limitations, Sec. 63. This is said to form an exception to the rule that after the statute begins to run it will continue, notwithstanding a subsequent disability. 7 Wait’s Actions and Defenses, 279.

In Dowell v. Webber (cited by Angell), 2 Smedes & M., 452, it was held that the statute of Mississippi, allowing nine months after publication of letters of administration before suit may be brought against the administrator, has the effect to suspend the general act of limitations and thereby leave the holder of a promissory note six years within which to sue, besides the nine months within which he is restrained from suing. The court, say: “The general ruléis that when the statute commences, it runs on notwithstanding any subsequent disability; yet when the disability grows out of some positive statutory-provision, it seems but right to exclude, the time during which such temporary disability continues,” and in support of this view the court,cite Bradford v. McLemore, 3 Yerg. 318; Planters’ Bank, etc., v. Bank of Alexandria, 10 Gill & J. 346; McInder v. Littlejohn, 1 Ired. 66, and Moses v. Jones, 2 Nott & McCord, 259, all of which will be found on examination to be in point.

We hold, therefore, the facts all considered, that when the claim was presented for probate the cause of action was not barred.

It-is suggested by appellant that this is not an action against the administrator, and hence the provision under consideration can not apply.

This is a proceeding in which it is sought to probate the note as a claim against the estate, and the defense is that the demand is barred by the statute of limitations, which declares that “all actions founded upon any promissory note * * * shall be commenced within sixteen years after the cause of action shall have accrued, and not thereafter.” If for any reason an “ action” is not so barred, the objection to the allowance of the claim is invalid.

We are of opinion that the judgment of the Circuit Court was right, and it will be affirmed.

Judgment affirmed.


author: Pleasants, J.

text:
    George E. Loar et al. v. Charles Heinz et al.

      HigTucays — Defective Bridge — Injury to Stock — Negligence of Commissioners.

      In an action against county commissioners for allowing unsuitable timber to be used in repairing a bridge, thereby causing injury to the plaintiffs’ cattle, this court declines to disturb the judgment of the court below in favor of the defendants.
    [Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of Morgan County; the Hon. Cybus Epleb, Judge, presiding.
    Mr. James W. English, for appellants.
    Messrs. Mobbison & Whitlock, for appellees;
   Pleasants, J.

This was an action on the case, brought by appellants against two of the county commissioners of Morgan county, for allowing unsuitable and defective timber to be used in repairing a bridge, by reason whereof it fell and injured three of plaintiffs’ steers which were being driven over it. The cause was tried by the court on the plea of nut guilty, and the finding and judgment were for the defendants.

It appears that on report received of the condition of this bridge the commissioners employed one Fletcher to look after it. He had frequently done- work of that kind for the county, and the concurrent testimony is that he was “a safe and reliable bridge builder — none better.” He reported that it must be repaired at once and that pine was the only lumber to be had for that purpose, but advised them that pine timbers, eight by eight, would be sufficient. Defendant Kennedy was not a carpenter or bridge builder, nor had he any such knowledge or experience as would justify him in relying on his own judgment in such a matter. Heinz had some experience and was of opinion that the timbers proposed would answer the purpose. Like material of the same dimensions had been used for a like purpose in other bridges, county and railroad, and been found sufficient.

The other commissioner, however, opposed its use in this instance, and it was shown that oak timbers of equal and greater dimensions could have been procured at Jacksonville. This bridge was in that part of the county which had been assigned to the care of Kennedy, and he, with the approval of Heinz, ordered the repairs to be made as proposed by Fletcher.

It was afterward used for about a year and heavy loads were hauled over it. No complaint of it was heard by the commissioners until this accident occurred. Several witnesses testified that these timbers were broken off square, indicating, as they say, that they were “doted,” and that if sound, they would not have been sufficient for such a bridge. The defendants both say that these timbers did not and were not intended to support the bridge. It was about forty-five feet in length, and when it fell there were on it five steers whose average weight was 1,500 pounds.

There is no pretense that defendants wilfully or knowingly authorized the use of unsuitable material or methods in making these repairs. What was or was not suitable in these respects was matter of opinion and to be determined by experts. Reasonable care required that it should be submitted to such.

Defendants, for aught that appears, were as liable to use the bridge as the plaintiffs. If it had been their private property and repaired for their own use, as reasonably prudent men they would have so submitted it.

In this respect the case differs from that of Tearney v. Smith, 86 Ill. 391, and is more like that of Weinsteil v. Smith, 21 Ill. App. 235. If they would be liable for negligence we think the proof of it is not so clear as to warrant us in disturbing the finding of the Circuit Court. At the worst it seems to have been only a mistake of judgment in a matter as to which they were necessitated to exercise it.

The judgment will be affirmed.

Judgment affirmed.


author: Conger, P. J.

text:
    George W. Nance, Jr., et al. v. George W. Nance, Sr., et al.

      Husband and Wife — Release of Homestead and Dower — Resulting Trusts — Bill to Enforce and Declare — Evidence—Sec. 2, Chap. 51, R. S.

    1. In chancery one defendant is competent to testify in behalf of a co-defendant on a question in the decision of which he has no interest. This rule is not impaired by Chap. 51, Revised Statutes.
    2. A wife who releases her right to homestead and dower in the family home in consideration of being paid an adequate share of the purchase money, is reinvested with such rights upon the application of such share in part payment of a new one.
    3. Upon a hill filed by the administrator of the wife and certain of her heirs against the husband to declare and enforce a resulting trust, on account of the re-investment of money allowed the wife for her homestead and dower in a farm, it is held: That the transaction in controversy simply amounted to the transfer of the wife’s rights of homestead and dower from one piece of property to another; and that the bill was properly dismissed.
    [Opinion filed May 25, 1888.]
    In error to the Circuit Court of Menard Comity; t':e Hon. Cyrus Epler, Judge, presiding.
    Messrs. H. W. Branson and S. II. Blank, for plaintiffs in error.
    Where real estate is purchased and paid for with funds belonging to two purchasers, but the legal title thereto is taken in the name of but one only of the purchasers, a resulting trust arises, by implication of law, in favor of the other purchaser, to the extent and in proportion to the amount of the consideration paid by him. This trust arises upon the allegation and proof of the ownership of the funds used in making the purchase, and does not depend upon the contract of the parties made anterior thereto, and hence is not affected by the statute of frauds, and may be established by parol evidence. It results from the fact that one man’s money has been invested in land, and the conveyance taken in the name of another. It is immaterial whether the purchase was made and the money paid by the trustee or the cestui que trust. This may be done by either without the knowledge of the other. No matter how or by whom done, by mere operation of law a trust is raised in favor of the party whose money was used to purchase the land, either to the whole or his equivalent portion of the land. Seaman v. Cook, 14 Ill. 501; Bruce v. Roney, 18 Ill. 67; Smith v. Smith, 85 Ill. 189; Loften v. Witboard, 92 Ill. 461; Latham v. Henderson, 47 Ill. 185; Ward v. Armstrong, 84 Ill. 151; Wallace v. Carpenter, 85 Ill. 590; 4 Kent, 306.
    If a husband purchases lands with the separate estate of his wife in his hands and takes the title in his own name, a trust results to the wife. 1 Perry on Trusts, § 127, 2d Ed., and numerous authorities cited:
    If a trustee in a resulting trust converts the trust property contrary to his duty, the cestui que trust has the option to hold him responsible personally, or to follow the property if not held by a bonaficle purchaser, without notice, or to pursue the proceeds or the substituted property. 4 Kent, 307; Seaman v. Cook, 14 Ill. 501, 505; Roberts v. Opp, 56 Ill. 34.
    Messrs. T. W. MoNeely and Edwabd Laning, for defendant in error.
   Conger, P. J.

This is a proceeding in chancery, instituted by plaintiffs in. error, the administrator and a portion of the heirs of Elizabeth Nance, deceased, against George W. Nance, Sr., the husband of said deceased, and the remaining heirs of said Elizabeth, to declare and enforce an álleged resulting ■ trust.

The claim, as made by the plaintiffs in error, is that in 1874 defendant, George W. Nance, Sr., was the owner of sixty acres of land, which he had bought and paid for himself, upon which he resided with his wife, Elizabeth, deceased; that at that time defendant, Nance, sold the land for §2,400; that his wife, Elizabeth, refused to sign the deed, and thereby release her right of dower and homestead, unless one of the notes for §800, to be given in payment, was made payable and given to her as her own property; that this was done.

Afterward, on March 14, 1876, defendant, George W. Nance, Sr., bought lots four, five and six, in block twenty-nine, in Taylor’s addition to the city of Petersburg, for §2,000, and in paying for the same used the §800 note given to his wife out of the previous sale, and a note of §200 on one Shipp, claimed by plaintiffs in error as also being the property of said Elizabeth, thereby, as plaintiffs insist, using his wife’s property to the extent of §1,000, or one-lialf of the amount paid for the property thus purchased.

Nance and his wife moved into the home standing on this property soon after purchasing it, and it remained their residence and homestead until the death of Mrs. Nance, on April 11, 1881, a period of about five years.

On the 14th of May, 1881, defendant sold these premises for §1,650. On January 13, 1883, an administrator was appointed upon the estate of the said Elizabeth, and the bill in this case was filed August 31, 1883.

The testimony in relation to the Shipp note is quite unsatisfactory and by no means sufficient to show clearly that if was the property of Mrs. Nance. We think the Circuit Court decided properly in holding the equities of the case were not with the plaintiffs.

We think the whole transaction was a mere exchange of homes upon the part of defendant Nance, assented to by his wife, by which her right of dower and homestead were transferred from the farm to the town property.

When the sale was made of the land, the wife might, if she had doubts as to her husband’s financial ability to care for and protect the proceeds arising therefrom, insist that such portion as they might, by agreement between themselves, think a fair equivalent for her interest in the property should be secured to her and placed under her control and management. And when a new home is purchased and this same note is, by the wife, placed in the hands of the husband and used as part of the purchase price, in the absence of other and controlling circumstances, the natural and reasonable presumption would be that her note was being used to invest her with her rights in a new home in place of the one which she lost when the farm was sold.

The moment Vance became seized of the town property, his wife thereby became vested with her dower interest therein, and when they removed to it, with her rights of homestead: and it would be quite unreasonable to suppose that such a result as is claimed by plaintiffs in error was intended between, husband and wife, dealing at arm’s length, as strangers, and upon business principles.

It is insisted by counsel for plaintiffs in error that William and A. 1. Ranee were not competent witnesses on the part of defendant in error, as they were sons and heirs of Elizabeth Ranee, deceased, and parties defendant to the bill. We think they were clearly competent. It has always been held in courts of chancery that one defendant was competent to testify in behalf of a co-defendant on any question in the decision of which he had no interest, and chapter 51 of the Revised Statutes, entitled “ Evidence and Depositions,” has in no manner impaired that rule. Bradshaw v. Combs, 102 Ill. 432; Greenleaf on Ev., Sec. 361. These witnesses had no interest in common with their father, but their interest was adverse to him ; for whatever could be taken from him and transferred to their mother’s estate benefited them as well as the plaintiffs in error.

Again, under Sec. 2 of Chap. 51, they were not. disqualified. That section provides: “ That no party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion or in his own behalf by virtue of the foregoing section, etc.”

While they were parties to the suit they did not testify of their own motion or in their behalf.

They were called by their co-defendant, George W. Ranee, Sr., to testify in his behalf and against their own interest. Unster v. Zimmerman, 7 Ill. App. 160.

Believing the decree of the Circuit Court in dismissing the bill to be right, it will be affirmed.

Decree affirmed.


text:
    Joseph Lambert v. Theodore Jonte.

      Sheriff — Special Deputy — Undated Appointment — Sec. 10, Chap. 125, R- S. — Action of Debt on Judgment — Wartt of Copy — Sec. 17, Practice Act —Default—Reversal—Practice.

    1. The record of a judgment upon which a suit is brought is an instrument in writing within the meaning cf See. 17 of the practice act, and a copy thereof must be filed with the declaration. The absence of such copy is sufficient ground for the reversal of a judgment entered by default.
    2. It seems that- a date to the written appointment of a special deputy sheriff is not indispensable, where it appears that the appointment preceded the service made by such deputy.
    [Opinion filed May 25, 1888.]
    In error to the Circuit Court of Cumberland County; the Hon. W. C. Jones, Judge, presiding.
    Mr. W. S. Everhart, for plaintiff in error.
    Mr. Horace S. Clark, for defendant in error:
   Pleasants, J.

Action of debt on a judgment of the same court. Judgment herein was rendered by default and the defendant brings the record here by writ of error.

He asks for a reversal on two grounds: First, that the appointment of the special deputy who served the summons was not dated. The statute authorizes the appointment of a special deputy to serve any summons by indorsement thereon substantially in the form prescribed, tl which shall be dated and signed by the sheriff.” E. S., Chap. 125, Sec. 10. It is claimed that a strict observance of this requirement as to dating is essential.

Manifestly the object of it is to have it appear to the court that the service followed the appointment, as it must in order to give jurisdiction of the defendant’s person. Neither the particular date nor the form in which it is stated can be material; nor does the statute declare the effect or consequence of its omission by the sheriff.

In this case it does not certainly so appear from the papers. The return, however, follows the appointment in the order of indorsement, and shows the service was made by the appointee as “ deputy sheriff,” and his affidavit appended states that he made it “ as appears in the return,” which would be perjury, if false, and punishable accordingly. (Sec. 11.)

Regarded as a mere question of fact, then, we should have no doubt upon the evidence thus furnished by the sheriff and his appointee, taken together, in writing and on the writ, substantially equivalent to that of a date given, that the appointment did precede the service; and since the judgment . recites that the defendant was duly served with process, and nothing in the record contradicts the recital, we should not be disposed to hold the appointment absolutely void for the want of a date, and the service therefore insufficient. But upon this point it is deemed unnecessary to express a decided opinion, inasmuch as the judgment will be reversed upon the other ground urged.

It appears that this suit was commenced, the service had, • and the declaration filed, ten days before the court at which the summons was made returnable, and that the declaration , counted on a judgment alleged to have been' rendered in 1877; but that no copy of the record of that judgment was filed with it.

That such record is an instrument in writing on which the action is brought,” within the meaning of Sec. 17 of the • Practice Act, is settled by the case of Jefferson v. Alexander, 81 Ill. 278. See also Hopkins v. Woodward, 75 Ill. 65. And that section provides that, “if the plaintiff shall not file his declaration, together with a copy of the instrument in writing * * * on which the action is brought, in case the same be brought on a written instrument, * * * ten days before the court at which 'the summons * * * is made returnable, the court, on motion of the defendant, shall continue the cause at the cost of the plaintiff, unless it shall appear that the suit was commenced within ten days of the sitting of the court, in which case the cause shall be continued without costs, unless the parties shall agree to have a trial.”

In Collins v. Tuttle, 24 Ill. 623, where the declaration and copy of the instrument sued on were not filed, though service of process was had ten days before the term, the Supreme Court held it was error to render judgment by default; that in such case appearance or motion of the defendant was not required in order to have a continuance of the cause, but only to have it continued at the cost of the plaintiff. And in Herring v. Quimby, 31 Ill. 153, which was an action on the case and not upon a written instrument, the same rule was held applicable on failure to file the declaration in projier time, and the former case was approved.

Where the action is brought upon a written instrument the statute puts the copy of that instrument in the same category with the declaration, and the consequence of a failure to file both in proper time is expressly declared to be the same as of failure so to file the declaration where the action is not brought upon an instrument in writing. That the requirement applies to the copy was specifically decided in Jefferson v. Alexander, supra.

For the reason, then, that it was not so filed in this case the judgment will be reversed and the cause remanded.

We notice some other irregularities in the proceedings as they appear in the record. The summons was 'in debt §500, and damages, §300; the declaration set forth a judgment for §500 and costs, but laid the damages in §700; and the judgment herein was simply for §350, without indicating whether it was debt or damages.

Reversed and remcmded.


text:
    T. & H. Smith & Co. v. Charles Yargo.

      Attachment — Jurisdiction of County Court — Judgment against Real Property — Statutes.

      A County Court has jurisdiction to enter a judgment in attachment against real estate, although the defendant is not personally served.
    [Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of Cumberland County; the Hon. James B. Hughes, Judge, presiding.
    Mr. Jas. L. Byan, for appellants.
    Mr. P. A. Beady, for appellee.
   Conger, P. J.

This was a suit in attachment in’the County Court, with a levy upon real estate.

The court dismissed the suit upon the ground that it had no jurisdiction in attachment _cases where real estate was levied upon, there having been no personal service upon the defendant in .attachment.

The action was based upon a promissory note, executed by appellee to appellants; the proceedings were regular, but it is insisted by appellee that County Courts have no jurisdiction to award a judgment in attachment against real estate and that' when no personal service is had the court is without jurisdiction, and must dismiss the suit. This seems to have been the view of the court below. Sec. 95, Chap. 37, B. S., says : “The County Courts shall have concurrent jurisdiction with the Circuit Courts in all that class of cases wherein justices of the peace now have, or may hereafter have jurisdiction, where the amount claimed, or the value of the property in controversy, shall not exceed one thousand dollars.” * * *

This, referring as it does to See. 13, Chap. 79, wherein justice’s jurisdiction is defined, clearly gives County Courts concurrent jurisdiction with the Circuit Courts in actions upon promissory notes, when the amount does not exceed §1,000.

By Sec. 202 of Chap. 37, it is provided that “the process, practice and pleadings in said court (County Court) in common law cases shall be the same as in the Circuit Court in similar cases.”

The County Court having concurrent jurisdiction with the Circuit Court of this class of cases, i. e.3 actions upon contracts, is not limited in its method of enforcing its judgment as is a justice,, to personal property, but may issue the same process as the Circuit Court.

This power would be inferred from the language of the section giving such courts “concurrent jurisdiction with the Circuit Courts,” but we think is clearly given in the section prescribing that the process and practice in County Courts shall be the same as in Circuit Courts in similar cases.

In the attachment act it is provided that in any court of record having competent jurisdiction an attachment may issue which shall be levied upon the lands of the debtor. Hence it is only necessary to inquire in the present case whether the County Court had competent jurisdiction over the subject-matter of the suit, it, of course, being a court of record, to determine whether it might proceed under the attachment act to enforce the collection of the debt in all the ways pointed out by the attachment act.

With a justice of the peace it is different; while he has jurisdiction of the same subject-matter within the prescribed amount, the same as the County Court, he is, by the attachment act, limited to issuing writs of attachment against the personalty of the debtor.

The judgment of the County Court will be reversed, and the cause remanded.

Reversed and remanded.


text:
    Indian Grave Drainage District v. Henry Root.

      Drainage District — Judgment against — Motion to Vacate — Levy and Quash Writ of Execution.

    1. Where an execution has been erroneously awarded, the proper remedy, after the term, is appeal or writ of error.
    2. This court declines to interfere with the action of the trial court denying a motion to vacate a levy and quash the execution at the second term after judgment was obtained.
    [Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of Adams County; the Hon. William Maksh, Judge, presiding.
    Messrs. Sprigs & Anderson, for appellant.
    Mr. Almeron Wheat, for appellee.
   Pleasants, J.

At the October term, 1886, appellee recovered judgment by default against appellant for $1,167.55 and'costs, and for execution therefor, on service upon one commissioner only, the other two having tendered their resignations, which were indorsed as accepted by the county judge, though their places had not been filled. The execution issued thereon was in the usual form of a fieri facias, and was levied by the sheriff on the 3d day of February, 1887, upon a lot of ground and pumping works belonging to appellant, but situate outside of the district. At the March term following, another having intervened, the cause was redocketed on motion of the defendant, who thereupon on the same day entered a further motion to vacate the levy and quash the writ of execution, which was denied.

The reasons for the motion, assigned below and relied on here, are (1) that the service was not sufficient to give the court jurisdiction of the defendant, and (2) that the defendant was a municipal corporation and therefore not liable to execution.

Conceding for the purposes of this case that both these propositions are true, the question is, had the court power to allow the motion ?

The sufficiency of the service was res adjudicata in that court. So also as to plaintiff’s right to execution. That he should have it was a part of the judgment. The writ issued was strictly according to the judgment. Why quash it, then? This motion was clearly not an invocation of any equitable power of the court over its own process,nor for cause arising after the judgment awarding it. Aside from the question of jurisdiction, which overshadows all the other proceedings as well, it strikes at the execution directly through the judgment. It is predicated upon error in the judgment, in that behalf distinctly assigned, and asks the court upon review so to hold, and to deny to the plaintiff all benefit of it— accordingly, in effect, to reverse it. And this is asked at the second term after it was rendered.

That the error so assigned was not merely clerical, or other such as the court could correct on motion at a subsequent term, seems clear enough. There was no mistake about it, except as to the law. It was just as the court intended it should be. ISfo fact is presented - in support of the motion which did not fully appear by the'record. The error, therefore, was not one of fact, which could formerly have been corrected on a writ of error coram nobis, and can now be on motion as its substitute, but of law. And for the general rule that for such an error the proper remedy, after the term, is by appeal or writ of error, we hardly need to cite authority. But to show how uniform the practice has been in this State, where execution has been erroneously awarded, we transcribe from the brief of counsel, which we have verified, the following: City of Morrison v. Hinkson, 87 Ill. 587; City of Paris v. Cracraft, 85 Ill. 294; Village of Kansas v. Juntgen, 84 Ill. 360; City of Elgin v. Eaton, 83 Ill. 535; City of Cairo v. Allen, 3 Ill. App. 398; City of Virden v. Fishback, 9 Ill. App. 82; Watson v. Abry, 2 Ill. App. 280. Others might be cited.

The only departure from this course, so far as we are advised, was in the case of City of Chicago v. Hasley, 25 Ill. 595. In the report of that ease it is stated that the execution was issued in August and the motion to quash entered in June of the same year, a misprint,. probably, which leaves it uncertain when, in reference to the judgment, the motion was in fact entered. Under the practice, not uncommon at that time, of getting an order for execution instanter upon a special showing, it might have been during the judgment term. But however that was, it is evident that the question here considered was not raised by counsel nor discussed by the court. The opinion states that the “ only question ” was, “ can the ordinary writ of fieri facias legally be issued against a municipal corporation on a judgment, for debt or damages recovered against it,” and no other is noticed. Possibly the importance of that question and of its early decision induced the overlooking or waiving of the other. Therefore, and in view of later expressions, we are inclined to think it ought not be regarded as authority upon the one here involved, and that the motion •was rightly denied.

Affirmed.


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    Matthew Parker et al. v. John W. Cain.

      Creditor’s Bill — Fraudulent Conveyance.

    A conveyance by a debtor solely to secure a future support is fraudulent as against creditors.
    [Opinion filed May 25, 1888.]

      In error to the Circuit Court of De Witt County; the Hon. Cyrus Efler, Judge, presiding.
    Mr. R. Á. Lemon, for plaintiffs in error.
    Messi’s. Fuller & Ingham, for defendant in error.
   Conger, P. J.

This is a creditor’s bill to set aside a certain conveyance as fraudulent.

On the 14th of March, 1885, Julia A. Parker was the owner of a life estate in certain lands, of which her three children, Edwin Parker, Flora Parker and Nettie Rockhold, nee Parker, were the owners of the fee, and on that day Mrs. Parker conveyed by quit claim deed her life estate in the property to appellant, Matthew Parker.

The reason for so doing, and the consideration upon which such conveyance was based is shown by the following agreement executed by the parties:

“Exhibit A.”

“Whereas, Julia A. Parker has this day conveyed to me, Matthew Parker, her life estate in certain real estate, more particularly described in a quit claim deed of this date, from her to me, and this day filed for record in the recorder’s office of De Witt county, Illinois, (which see) for which I am to pay her the sum of one hundred and fifty dollars per year, during her natural life, or until the times hereinafter mentioned, for one of which annual payments 1 have this day given my note, due March 1, 1886, now this agreement witnessetli, that if the said Julia A. Parker shall be living on the 1st day of March, 1886, I shall give a like note for §150 to her, due in one year from that date, with eight per cent, interest, and on the 1st day of each succeeding March, if she shall be living, until March 1,1888, inclusive. And on March 1, 1889,1 agree to execute a quit claim deed to Edwin Parker, for the undivided one third of said real estate, and on said last mentioned date, if said Julia A. Parker shall be living, I am to execute to her my note for $75, due in one year from that date, with eight per cent, interest, and on March 1, 1890, I agree to execute to Flora Parker a quit claim deed for the remaining undivided one-third of said real estate, I having already executed a quit claim deed to Nettie Rockhold, nee Parker, for the undivided one-tliird of said real estate. It is expressly understood and agreed that in case of the death of the said Julia A. Parker in the meantime, then no further note or notes shall he given, and this contract shall be at an end and all liability shall cease.

“ The consideration of said quit claim deed from said'Julia A. Parker to said Matthew Parker is the consideration for this agreement. Dated this 14th day of March, 1885.

“ Matthew Pakkeb,

“ Julia Pakkeb.”

March 20, 1885, six days after such conveyance was made, appellee, John Cain, recovered a judgment against Julia Parker for groceries and supplies furnished her during the years 1882, 1883 and 1884, and having failed to make his debt by an execution, tiled the bill in this case.

From a careful consideration of the foregoing agreement we have reached the conclusion that the conveyance made by Mrs. Parker can not be sustained, for the reason that it was made solely to secure a future support for the grantor. It provides for the payment to Mrs. Parker of the sum of $150 per annum for the years 1886, 1887, 1888, 1889, and for the year 1890 the sum of $75, provided Mrs. Parker shall so long live, and should she die, nothing thereafter. There is no absolute liability upon Parker to pay anything, except the first payment for which he executed his note, unless Mrs. Parker should remain alive.

Had the various payments been made to depend upon no contingency, the mere fact that they were to be made at a subsequent time would in no way have tainted the transaction.

She had a right to sell her property for an honest and fair consideration, as the law deems such consideration so received as standing in the place of, and representing to her creditors, the property sold. But in this transaction Mrs. Parker, beside the first note, gets nothing but a promise to pension her for a certain number of years, if she lives, and if she dies 'her estate is to get nothing. Annis v. Bonar, 86 Ill. 128; Lawson v. Funk, 108 Ill. 502.

The decree of the Circuit Court will be affirmed.

Decree affirmed.


text:
    C. Aultman & Co. v. Henry Ohl et al.

      Negotiable Instruments — Note—Evidence—Warranty—Contract of Sale ■ — • Waiver.

    An error in the exclusion of evidence, which has worked no injury to the appellant, is not sufficient ground for reversal.
    [Opinion filed May 25, 1888.]
    Appeal from the County Court of Champaign County; the Hon. J. AT. Langley, Judge, presiding.
    Mr. AT. A. Perkins, for appellants. •
    Messrs. Bay & Slauson, for appellees.
   Conger, P. J.

This was a suit brought upon two promissory notes given in payment for a mowing machine, and the defense set up was that the machine would not work as represented and was worthless. Verdict and judgment for defendants.

The principal error complained of by appellant is the refusal by the court to permit the warranty printed upon the back of the order given by appellees to appellant for the machine, to be read to the jury.

The order was as follows:

“C. Aultman & Co., Canton, Ohio.

Tolono, Illinois, June 26, 1885.

“ The undersigned has this day bought of your agent, W. H. Yanaslen, at Tolono, Illinois, one Buckeye Dropper and Mower, combined, to be delivered, if possible, at (insert plain and full description of machine wanted) Tolono, on the 30th day of June, 1885, where he agrees to receive the same and pay freight from Canton, and at the same time pay to your order one hundred and fifteen dollars as follows, cash, §...... and notes with approved security, bearing interest at seven per cent, as follows:

“ One for §38.35, due Jan. 1,1886; one for §38.35, due Oct. I, 1886; one for §38.30, due Jan. 1, 1887; one for §...... due......188 . The machine above ordered to be subject to warranty printed on back of this order.

“ Henry Ohl.

“Post office, Pesotum. County, Champaign, State of Illinois.”

Copy of the warranty on the back of the order refused by the court to go to the jury as evidence:

“Warranty.

“ The machine herewith ordered is warranted, with proper usage and management, to work equal to or better than any first class machine made for doing the same work. If, in one day’s trial, it shall not perform as above warranty provides, the purchaser agrees to notify C. Aultman & Co., or the agent within named, and allow them time to get to the machine and remedy the defect, if there be any (if it be of such a nature that a remedy can not be suggested by letter), the purchaser rendering necessary and friendly assistance. If the machine can not be made to fill the warranty, it shall be returned by the purchase;" to the place where received. More than one day’s use of said machine shall be considered an acceptance of it, and this warranty shall not be binding if the machine shall be delivered before settlement shall have been nmde for same, ■ as stipulated.”

Tlie court, we think, erred in not permitting the warranty to go to the jury, that they might determine from ail the evidence in the case whether it formed a part of the contract between the parties or not. If any misrepresentations or concealments were made at the time the order was signed, by appellants or their agents, it might be that the jury would be authorized to say it was no part of the contract signed by appellee, but it, together with all the circumstances attending the execution of the order, should have gone to the jury.

But we do not think this erroneous ruling of the court worked any substantial wrong to appellants, for the reason that appellee did, within two or three days after receiving the machine, report to appellant’s agent the fact that the machine would not work, and from that time on, he kept it at appellant’s request, and there was therefore upon the appellant a waiver of the terms contained in the warranty.

The judgment of the County Court will be affirmed.

Judgment affirmed.


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    Gilbert A. Van Duyn and Geo. B. Hemenway, Partners, v. Aultman & Co.

      Agency — Contract—Sale of Farm Implements — Jurisdiction—Evidence.
    In an action brought by a manufacturer of farm machinery, upon an agency contract to recover the value of machinery sold, t being alleged that the purchase price was lost because of the failure of the agents to obey the instructions of the company, this court affirms the judgment for the plaintiff, the evidence being sharply conflicting and there being no substantial error in the instructions.
    [ Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of Sangamon County; the Hon. J. A. Creighton, Judge, presiding.

      Messrs. Bbown, Wheeler & Brown, for appellants.
    Messrs. Patton & Hamilton, for appellee.
   Conger, P. J.

Appellants were the agents of appellee for selling the latter’s machines. A machine was sold to one De Gouveia, and delivered to him without taking such security as was required by the contract of agency between appellants and appellee. The machine was never paid for, and the price was wholly lost to appellee, who thereupon brings this suit against appellants and seeks to recover upon the ground that it was lost by the failure of appellants to perform their contract of agency in taking proper security from De Gouveia before delivering the machine.

Appellee recovered a verdict for 31,777.52, and a remittitur was entered for $375, whereupon a judgment was rendered for $1,402.52.

The vital and contested question is, did appellants or appellee, by its general agent, Mickle, make the sale to De Gouveia. The evidence upon this point is quite contradictory, and consists of many circumstances upon which reliance is placed by the parties to strengthen the direct statements of the witnesses.

We have examined it all with care, but can see no good purpose to be subserved by referring to it at length.

We can not say that the jury were not warranted by it, in reaching the conclusion they did-.

The fourth instruction does not, as we construe it, give the jury to understand that if Mickle sold the machine, still the sale should be considered as made by appellants, unless Mickle had authority to waive the terms of the contract. It is silent as to who made the sale and only instructs the jury as to when and under what authority Mickle could vary the terms of the contract, and if, as insisted, it was not applicable to any issue being tried, we can not see that it was calculated to do appellants any injury.

The judgment of the Circuit Court will be affirmed.

Judgment affirmed.


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    Weir & Creig v. William M. Dustin.

      Attachment — Fraudulent Conveyances — Assignment.
    A conveyance by a debtor in failing circumstances, wbo does not desire to make a general assignment, made in good faith in satisfaction of a particular indebtedness, is not fraudulent as against other creditors,
    [Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of Logan County; the Hon. G. W. Herdman, Judge, presiding.
    Messrs. Franklin P. Simmons and S. L. Wallace, for appellants.
    Messrs. Blinn & Hoblit and Beach & Hondett, for appellee.
    To sustain an attachment on the ground that the debtor is about fraudulently to conceal, assign or otherwise dispose of his property or effects so as to hinder or delay his creditors, a fraudulent intent must be proved. Shove v. Farwell, 9 Ill. App. 256; Drake on Attachments, Sec. 74, p. 52; McPike & Fox v. Attwell, 34 Kan. 142; Milliken v. Dart, 26 Hun, 24; Dunn v. Jackson, 59 Ala. 203.
    A debtor, wbo is also a member of a firm, may convey his individual property to pay or secure firm debts, and his individual creditors can not complain. McIntyre v. Yates et al. 104 Ill. 491; Ladd v. Griswold, 4 Gilm. 25; Hapgood v. Cornwell, 48 Ill. 64; Williams v. Adams, 16 Ill. App. 564; Bump on Fraudulent Conveyances, 383; Kirby v. Schoonmaker, 3 Barb. Ch. 47; Lindley on Part. 624.
   Conger, P. J.

This was a suit in attachment brought by appellants against appellee. The affidavit upon which the writ was predicated charged appellee with the fourth, fifth, sixth, seventh and eighth grounds mentioned in section one of the attachment act. Upon the trial the issue upon the indebtedness was found for appellants, and judgment was rendered in their favor for §1,663.40.

A plea was filed denying all of the alleged grounds for issuing an attachment, and upon the issue formed thereon appellants were unsuccessful.

In January, 1886, appellee formed a partnership with Charles A. Nicholson, and his son, William L. Dustin, to carry on the banking business in Lincoln, Illinois, under the firm name of William M. Dustin & Company.

In July, 1886, appellee, as an individual, guaranteed to appellants certain purchases to be made of them by a beef company, in Montana, by which the indebtedness was created for which this suit was brought, and about which no question is made in the record.

About October 2, 1886, the banking firm of William M. Dustin & Co. failed, and on November 8, 1886, made an assignment, under the assignment laws of this State, to Aaron B. Nicholson.

On the loth of November, 1886, appellee executed a deed by which, for the expressed consideration of §5,000, he' conveyed “to said Aaron B. Nicholson, assignee of William M. Dustin & Co., insolvent debtors, for the use and benefit of all the depositors of William M. Dustin & Co., the following described real estate, to-wit: (describing three lots) intending hereby to vest in the said Aaron B. Nicholson, assignee, the same title in and to said real estate that he has in the estate of said William M. Dustin & Co., for the sole use and benefit of their depositors, situated in the county of Logan.”

There can be no question, from the evidence, that appellee was indebted to the firm of William M. Dustin & Co., and that the conveyance was made in good faith on the part of appellee to secure the partnership creditors, or rather the depositors in the bank. That there was no fraud, in fact, intended or accomplished, we think the jury would be fully warranted, from the evidence, in finding.

It is insisted, however, that the conveyance of November 15, 1886, was fraudulent in law, as being in violation of the general assignment law of this State; that it was in reality attempting to make an assignment, and at the same time preferring creditors.

We can not assent to this proposition. The deed was not a voluntary assignment for the benefit of creditors generally, but it was a conveyance of specific tracts of land to Nicholson for the benefit of specified creditors, to wit, the depositors in the bank of William M. Dustin & Co. This he clearly had the right to do, as we said in the case of E. D. C. Haines v. James E. Chandler et al., 26 Ill. App. 400: “ The act concerning voluntary assignment does not oblige an insolvent debtor to make a general assignment in conformity with its provisions in order to appropriate his estate, or any specific portion of it, to the payment of a particular debt, nor prevent his preference of a particular creditor, by any means that were previously lawful, excepting only a general assignment for the benefit of creditors. He may confess a judgment, execute a mortgage, legal or equitable, or turn out all or any of the specific property at an agreed valuation, if done in good faith for the satisfaction of one debt, though others should be thereby left unprovided for.”

In Schroeder v. Walsh, 120 Ill. 411, it is said: “In the absence of any bankrupt law or statute to the contrary, the law is well settled that a debtor in failing circumstances, not seeking the benefit of the general assignment law, may prefer one creditor to another equally meritorious, if done in good faith.”

Appellee, by making this deed, was not seeking the benefit of the general assignment law; no attempt was made to conform to its requirements, but a. direct conveyance of specific property for the benefit of specific creditors was made. Nicholson being the assignee of the insolvent bank, there would seem to he the utmost propriety in conveying the property directly to him. No trust, secret or otherwise, was reserved for the benefit of the grantor, and we can see no reason for holding the conveyance invalid.

There being no fraud in law in executing this conveyance, it is unnecessary to notice the other question discussed at length by counsel, i. 6., whether a transaction which is done in good faith by' a failing debtor, without any fraudulent intent upon his part, but which the law may deem fraudulent, will authorize an attachment.

As we hold the deed was not fraudulent, nor void in law, and the evidence fully justified the jury in finding that no fraudulent intent existed in executing it, it is unnecessary to discuss this question further.

The instructions of the court below were in accordance with the views herein expressed, and it is therefore unnecessary to notice the objections to them in detail.

The judgment of the Circuit Court will be affirmed.

Judgment affirmed.


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    Lucy J. Murray v. Benjamin D. Strang.

      Administration — Exception to Report — Life Insurance — Benevolent Association — Beneficiaries—“ Legal Representatives.”

    Upon exceptions filed to a report of an administratrix by a creditor of the estate of her deceased husband, touching her failure to charge herself with the proceeds of a certificate in a benevolent association of which her husband was a member, it is held: That, in accordance with the intention of the parties, the words “legal representatives” are to he construed as referring to the widow, orphans and heirs of the deceased; and that the administratrix is not chargeable as such with the proceeds of said cer" tifieate.
    [Opinion filed May 25, 1888.]
    Appeal from the Circuit Court of Green County; the Hon. G. W. Herdhan, Judge, presiding.

      Messrs. Jora W. Starkey and Beowk & Kirby, for appellant.
    A corporation, public or private, possesses and can exercise no other powers than those specifically conferred by the act creating it, or such as are incidental or necessary to carry into effect the purposes for which it was created. Caldwell v. City of Alton, 33 Ill. 416; Chicago v. Rumpff, 45 Ill. 90.
    The contract of the corporation must be construed so as to carry out the purposes for which it was organized. Benefit Association v. Sears et al., 114 Ill. 103; Covenant Benefit Association v. Spies, 114 Ill. 463-468.
    The by-laws and constitution of an association are evidence for the purpose of determining the character of the contract made with its members. Covenant Benefit Association v. Spies, 114 Ill. 463; Highland v. Highland, 109 Ill. 366.
    The nature and purposes for which a corporation was created is the controlling consideration in determining its bylaws, and if they are foreign to its character and a departure from its purposes, they are void. If otherwise, and they are in harmony with the general laws of the State, they are valid. People v. Chicago Board of Trade, 45 Ill. 112.
    Associations and societies which are intended to benefit widows, orphans and devisees of deceased members thereof, and members who have received a permanent disability and where no annual dues or premiums are required, and where members shall receive no money as profit or otherwise, except for permanent disability, shall not be deemed insurance companies. Revised Statutes, Chap. 32, Sec. 31; Opinion of Attorney General, December, 1884, page 13; Commercial League v. People, 90 Ill. 166-172.
    The rules and regulations of a mutual society designed to secure, upon the death of a member, payment of moneys to those who are dependent upon him, should be liberally construed by the court, so as to effect its benevolent purpose, and should not be so construed as to defeat that purpose, if their language admits of any other reasonable construction. Ballou v. Giles, 7 N. W. R. 273.

      Upon the death of a member of any such association, the administrator of the deceased member will in no case be entitled to moneys from said benefit fund for the creditors of the deceased. Diedrich et al. v. The Madison Relief Association, 45 Wis. 79; Ballou v. Giles, 7 Northwestern Rep. 273; Hodges’ Appeal, Chicago Legal News, August 21, 1880, page 421; Kentucky Masonic Mutual Life Insurance Company v. Miller, administrator, 13 Bush, 480.
    Even if the by-laws of such an association should provide that the payment shall be made to his executor, such executor would hold the fund as trustee for the beneficiaries named in the charter, but not as general assets. Daniels, executor, v. Pratt, 143 Mass. 216; American Legion of Honor v. Perry, 140 Mass. 580.
    The term “legal representatives” does not always mean - administrator or executor. It may mean heirs, next of kin or descendants, and sometimes assignee or grantee. The sense in which the term is to be understood depends upon the intention of the parties using it, and is to be gathered, not always from the instrument itself, but as well from the surrounding circumstances. Loos v. John Hancock Mutual Life Insurance Co., 41 Mo. 538; Delaunay v. Bennett, 4 Gilm. 454; Morehouse v. Phelps, 18 Ill. 472; Warnecke v. Lembca, 71 Ill. 91; Bowman v. Long, 89 Ill. 19.
    Mr. Makk Meyekstein, for appellee.
    We think that the questions at issue must be determined from the certificate of membership alone, and that all extrinsic evidence as to the object and purpose of the said Masonic Benevolent Association, as shown by the alleged constitution and by-laws, is wholly inadmissible to change the contract as set forth in that certificate of membership; and we candidly also state that it is now our judgment, that all the other extrinsic evidence introduced for the purpose of showing what was Murray’s intention when he procured this life indemnity, is equally inadmissible. We however insist, that if all this extrinsic evidence is a proper and legitimate subject to be considered by the court in determining questions of fact, it largely preponderates in favor of appellee.

      We contend that the certificate of membership in evidence is nothing more nor less than a policy of insurance on the life of John II. Murray, deceased, issued in his lifetime. The Illinois Masons’ Benevolent Society v. Charles E. R. Winthrop, Adm’r, etc., 85 Ill. 537; Masons’ Benevolent Society v. Elizabeth Baldwin, 86 Ill. 479.
    We claim that this certificate of membership is a contract entered into by the Masonic Benevolent Association of Central Illinois on the one part, and John II. Murray on the other part. By this contract the said association in substance promises and agrees, for a good and valuable consideration, to and with the said John II. Murray, his heirs, executors, administrators and assigns, well and truly to pay or cause to he paid to the devisees or legal representatives of the said John II. Murray, after due notice and satisfactory evidence of the death of the said John II. Murray, a certain amount of money.
    The controversy in this case is not between that association and the payees of that certificate.
    Wo contend that the term legal representatives in this policy means none other than the administrator or executor of the estate of John II. Murray, deceased.
    While it is undoubtedly true that the term legal representatives may sometimes mean heirs, next of kin, assignee or even grantee, yet we claim it to he an inflexible rule of law, that the administrator or executor is the legal representative of the decedent as to all the personal estate. Louis Warnecke et al. v. Lembca, 71 Ill. 91.
    Legal representative or personal representative in the commonly accepted sense means administrator or executor. Id. p. 92.
   Wall, J.

John II. Murray, of Boodliouse, in Greene County, Illinois, died intestate, leaving him surviving a widow, Lucy J. Murray, undone child, a sou.

Prior to his death, and on the 28th day of November, 1884, he had taken out a certificate of membership in the Masonic Benevolent Association of Central Illinois. By said certificate of membership, the said association did promise and agree to and with the said John H. Murray, his heirs, executors, administrators and assigns, well and truly to pay or cause to be paid to the devisees or legal representatives of the said John H. Murray, within thirty days after due notice and satisfactory evidence of the death of the said John H. Murray, and proof of interest, should be received at the office of the association, the amount of five thousand dollars, or one dollar for each member of the association at the time of his death, less the expense of collecting the same, not to exceed ten per cent.

Lucy J. Murray, the appellant, was duly appointed administratrix of the estate of said decedent, and collected and received' from the said association the sum of $3,901.05. The said administratrix filed her report in the Probate Court of Greene County, Illinois, as administratrix as aforesaid, not charging herself with the said" sum of $3,901.05. Benjamin D. Strang, a creditor of the estate, filed his exceptions to the administratrix’ report, objecting to the same, among other reasons, because she had failed to charge herself with the said sum of $3,901.05.

Upon a hearing in the County Court of the exceptions to the report of the administratrix, the court overruled the objections and approved the report; whereupon Benjamin D. Strang took an appeal to the Circuit Court.

Upon the trial of said appeal in the Circuit Court, before the judge, without a jury, the court ordered that the said exception to the report of the administratrix be sustained, and that all other exceptions to said report be overruled, and that" the said Lucy J. Murray, as administratrix, charge herself with all money received by her from the said Masonic Benevolent Association as part of the assets of the personal estate of John H. Murray, deceased, to be applied and paid out by her, as such administratrix, under the direction of the County Court of Greene County, Illinois, to reverse which order and judgment the said Lucy J. Murray brings her appeal to this court. .

The question is as to the true construction to be given to the term “ legal representatives ” as used in the certificate of membership. By that instrument the company did “ promise and agree to and with the said John H. Murray, his heirs, executors, administrators and assigns, well and truly to pay or cause to be paid to the devisees or legal representatives of said John II. Murray,” etc. It is to be noticed that the term 16 heirs, executors, administrators and assigns,” are used, and also the teams “ devisees or legal representatives ” as though the two phrases did not necessarily refer to the same persons, and as a matter of law they do not, though it is true that the term “ legal representatives,” when referring to those who are entitled by law to the personal estate of a decedent, if there is nothing in the contract or circumstances to indicate otherwise, uniformly mean executors and administrators.

In ascertaining the meaning to be given to the expression the intention of the parties may be gathered not solely from the instrument but in part from the concomitant circumstances, the existing state of things and the relative situation of parties to be affected. Bowman v. Long, 89 Ill. 19; Johnson v. Van Epps, 110 Ill. 551; Redfield on Wills, Vol. 2, p. 402, et seq.

By the express language of its constitution the object of the company or association issuing the certificate was to provide pecuniary aid “ for the widows, orphans, heirs and devisees of deceased members and for no other purpose whatever.” It was not the ordinary case of life insurance offered by an insurance company to the public, but it was rather for the special use and benefit of persons belonging to the Masonic order and was limited to the pecuniary aid of their widows, orphans and devisees. The certificate, as understood by the company or association issuing it, must have been intended to carry out the object for which the association was instituted and the wrords in question were, no doubt, understood by the insurer in the sense contemplated by the constitution and in harmony with its objects.

Were they so understood by Murray, the insured?

He had shown him a copy of the constitution and was, no doubt, familiar with the designs and purposes of the organization, and was, probably, advised of the particular nature of indemnity offered by it. He stated at the time that he intended to take out a policy for the benefit of his wife and child.

It is true, there is some evidence, consisting of declarations made at an earlier date, tending to show a different purpose, hut after carefully considering the whole case as it appears of record, we are inclined to hold that, according to the intention of the parties to this contract the terms “legal representatives” here mean, thuse who are such in the contemplation of the constitution of the companj7-, viz., the widow, orphans and heirs of the deceased. It follows that the administratrix could hold the money, not for the benefit of creditors or of the estate generally, but for those who are the beneficiaries intended in the certificate. The judgment will be reversed and the cause remanded, with instructions to overrule the exceptions to the report and to affirm the judgment of the County Court.

Reversed mid remanded.