text:
    Tisdale H. Murphy, Appellee, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 7,852.
    1. Carriers — rule as to act of God inapplicable to delay in delivery. The rule that only an act of God or the public enemy can excuse nondelivery of goods intrusted to a common carrier for transportation is not applicable to the duty of a common carrier with reference to the time of delivery.
    2. Carriers — cold weather though not act of God as defense for delay. A train transporting cattle could have been delayed by extreme cold weather which was not an act of God, and yet the cold weather could be a defense for delay in shipment.
    3. Carriers — burden of proof as to unreasonable delay of shipment. Where in an action for injury to cattle due to carrier’s delay in shipment, defendant’s plea of the general issue negatived any “unreasonable delay,” the burden of proof was upon plaintiff to show a delay caused by negligence, though defendant also pleaded an act of God.
    4. Carriers — property must be delivered within reasonable time. Where property is delivered to a carrier for transportation, the latter must transfer and deliver it at its destination within a reasonable time.
    5. Carriers — evidence of unreasonable delay held of little value. In action for injury to cattle by alleged delay in shipment, evidenee of the shipper that he had previously shipped stock through in a certain time, held of little evidenciary value as proving unreasonable delay at the time in question.
    6. Cabeiebs — delay caused by feeding stock. A carrier is required to unload and feed stock every 36 hours en route, and delay caused by this is susceptible of proof on a run in question wherein shipper claims unreasonable delay.
    Appeal by defendant from the Circuit Court of Montgomery county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed and remanded.
    Opinion filed October 27, 1925.
    Rehearing denied December 16, 1925.
    Hill & Burlington, for appellant; John G. Drennan, of counsel.
    Lane, Dryer & Brown, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

Appellee brought a suit in the circuit court of Montgomery county to recover damages alleged to have caused to stock carried by appellant from Omaha, Nebraska, to Farmersville, Illinois, The'declaration contained three counts. The first two counts of the declaration averred that appellee delivered to the appellant 150 head of cattle, in proper condition for shiprment from Omaha to Farmersville, and that it became the duty of the appellant to transport said cattle and deliver the same at Farmersville, within a reasonable time and without unreasonable delay, but that appellant did not do so and held said stock on its line of railway, to wit, 100 hours, in traveling from Omaha to Farmersville, and that by reason of such unreasonable delay the cattle were caused to shrink and appellee averred thé damage. The third count set out the same matters and that by reason of the cattle being unreasonably, carelessly and negligently delayed in shipment they were caused to become sick and lame, and to shrink excessively in weight and that appellee suffered great damage, etc.

The appellant filed a plea of the general issue and a special plea, stating that the plaintiff ought not to have his action, etc., because the delay of the shipment of the cattle, if any, as charged in the declaration, was not caused by the act of the defendant but was caused by the act of Grod, to wit, a severe blizzard, cold spell and storm that arose during the progress of said shipment of cattle that hindered and delayed the usual and reasonable operation of the engine, cars and appliances on the train and of other trains of the defendant that did, without negligence on the part of the defendant, delay said shipment, and that if any damage thereby happened to the plaintiff’s cattle the same was occasioned by the act of Grod and without fault or negligence on the part of the defendant.

Appellee replied to the second plea that it was because of its own wrong and without the cause of the act of Grod and without a severe blizzard and cold spell or storm during the progress of said shipment, and without being hindered and delayed in the usual and reasonable operation of its engines, cars and appliances, that caused the unusual and unreasonable delay as in the declaration mentioned. Issue was joined and the case was tried before a jury. There was a verdict and judgment for appellee in the sum of $450 and appellant has appealed.

The proofs tend to show that the shipment left Omaha in five cars at 9:55 p. m. February 1, and arrived at Farmersville at 9:35 p. m. February 5, traveling a distance of 647 miles. When the cattle left Omaha the weather was fair, the mercury about ten degrees above zero. It was not storming but there was a faint trace of snow during the day. The shipment was routed through Council Bluffs, Fort Dodge, Waterloo and Dubuque, Iowa, and Freeport, Bloomington and Clinton to Farmersville, Illinois, all upon appellant’s line of railway. The cars were hauled on trains with other freight and at the end of divisions were made up with other cars into a train for a run to the end of the next division. The train arrived at Waterloo two hours late, due to delay caused by connection with other trains from Council Bluffs. The greatest delay was caused between Waterloo, Iowa, and Freeport, Illinois, a distance of 160 miles. There were thirty-four loaded cars and one empty in the train. The train arrived at Waterloo at 6 p. m. and was to leave at 7 o’clock p. m. February 2, but did not leave until 9:40 p. m. on account of the air freezing on the engine. The weather was extremely cold and it grew colder all night, with a strong northwest wind blowing. In the evening it was three degrees below zero, growing colder during the night, and in the morning it was sixteen degrees below zero when the train arrived at Dubuque at 8:45 a. m. The train was stopped at Manchester, Iowa, on the last run to take on some additional cars, and while doing so the train “froze up”; the packing froze around the journals at this point. Much delay was caused by the train being sidetracked to permit delayed passenger and mail trains to pass, and upon attempting to start the train, even with three engines, it was found impossible to move it for several hours on account of the weather and the frozen condition of the appliances.

There was testimony tending to show that very unusual weather conditions existed in that section at this time, and that the air had not frozen up on a train at this point for three years. The testimony in this case is not conflicting, but it is rather a question of applying correct principles of law to the facts proven and it was, therefore, necessary that the jury be accurately instructed as to the law.

Appellee’s third instruction informed the jury that when appellant accepted the shipment of stock, “The law made it the duty of the defendant to carry said stock to its destination, within a reasonable time, unless prevented by the act of God or the public enemy,” etc. Appellant contends that the duty stated applies to the loss or destruction of the property and not to delay in shipment. (Bacon v. Cleveland, C., C. & St. L. Ry. Co., 155 Ill. App. 40; Perkins v. Cleveland, C., C. & St. L. Ry. Co., 183 Ill. App. 531; Wabash, St. L. & P. Ry. Co. v. McCasland, 11 Ill. App. 491; 4 R C. L. p. 741, sec. 210.)

In Bacon v. Cleveland, C. C. & St. L. Ry. Co., supra, the court said:

“This instruction was clearly erroneous The rule that only an act of God or the public enemy can excuse the nondelivery of goods entrusted to a common carrier for transportation is not applicable to the duty of a common carrier with reference to the time of delivery.”

The same rule is laid down in Wabash R. Co. v. Johnson, 114 Ill. App. 545, and in Adams Exp. Co. v. Bratton, 106 Ill. App. 563. In the latter case it is held:

“Before there can be a breach of this duty, a mere delay is wholly insufficient to create a liability. It must be ‘an unreasonable delay, which is such as involves some want of ordinary care or diligence’ on the part of the carrier. Chicago & A. R. Co. v. Simms, 18 Ill. App. 68, and cases cited.”

The instruction was erroneous in stating the duty of the carrier.

The second instruction is subject to criticism for singling out and calling particular attention to certain evidentiary facts shown in the case and especially calling attention to the delay caused by the train freezing and causing it to become stalled. The instruction stated that if the jury believed that the train was permitted to stand still as a result of negligence of the employees, then, it would be considered an act of the defendant and not an act of God. It was not required that the freezing of the train be caused by weather that would be termed an act of God in order to make it a defense. The train could have been delayed by extreme cold weather that was not an act of God and yet be a defense for delay in the shipment and not be considered as the instruction states “the act of God.” The criticism to this instruction, as in others referred to, grows out of failure to distinguish between the duty imposed upon a carrier in the ultimate delivery of property intrusted to its care and its duty to transport within a reasonable time.

Appellant assigns error upon the giving of the seventh instruction for appellee as follows:

“The Court instructs the jury that the second plea filed by the defendants in this case, admits that the defendant did not deliver the plaintiff’s cattle at Farmersville within a reasonable time and the defendant by its said second plea denies liability on the ground that the unreasonable delay was occasioned by an Act of God, viz.: by a storm, blizzard and cold spell, and you are further instructed that although you may believe from a' preponderance of the evidence that there was a storm, blizzard and cold spell in the territory through which the said cattle were shipped, the same does not establish a defense under said second plea, unless you believe from the evidence that the storm, blizzard and cold spell was an unusual storm, blizzard and cold spell, and one not reasonably expected for the territory through which the said cattle were shipped.’’

This instruction was clearly erroneous and was not warranted by the form of the pleas. Appellant’s plea of the general issue was at all times in the case and negatived any “unreasonable delay.” Under this plea the burden of proof was upon appellee to show a “delay” caused by the negligence of appellant. The second plea merely undertook to explain a delay, “if any,” as occurring by the act of God. Under the general issue, appellant had the right to show the state of the weather or any other circumstance or condition not growing out of appellant’s negligence, to account for a delay in the shipment, if there was any delay. But the instruction amounts to a judicial determination that such delay as occurred in the shipment in question was an unreasonable delay and that appellant was guilty of negligence, unless the storm and weather can be construed as an act of God. This instruction did not state the law and was very prejudicial to appellant.

Error is assigned upon the giving of appellee’s fourth instruction, stating that if the negligence of the carrier contributed in part to said unreasonable delay,' then the issues should be found for the plaintiff. Appellant contends that the instruction is erroneous and that it must be shown that the negligence of the carrier was the proximate cause of the injury. Inasmuch as the judgment is to be reversed and the cause remanded for another trial, we do not, in this opinion, pass upon this assignment of error.

It is conceded, as a matter of law, that where property is delivered to a carrier for transportation, that the carrier must transfer the property and deliver it at its destination within a reasonable time. Appellee, to establish the usual and customary time within which stock was ordinarily carried between Omaha, Nebraska, and Farmersville, Illinois, testified that he had been a shipper of stock for 15 years, and that in the fall of the year he had a car of sheep come through from Omaha in 60 hours and stated further that: “It seems to me that they ought to go in 60 hours,” and the witness further stated, upon being pressed, that in his judgment, based upon his experience, the stock should ordinarily be carried from Omaha to Farmersville in 60 hours. There was no further testimony upon this phase of the case and the witness stated no other knowledge or experience as to the running time of trains moving stock. We are not prepared to state that this testimony was incompetent in this suit, but it certainly was not the best evidence obtainable upon the subject and under all the circumstances stated was of little evidentiary value. Some of the trains on this route carrying stock and other freight, from the testimony, had schedule runs and time of departure and arrival at division points, and we must conclude that this system prevailed over the entire route unless it is shown to the contrary. Stock is required to be unloaded and fed every 36 hours en route, and it would seem that the delay caused by this rule would be susceptible of proof on the run in question.

For the errors pointed out, the judgment of the circuit court of Montgomery county is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Shurtleff

license: Public Domain

text:
    Central Illinois Public Service Company, Appellee, v. Raymond C. Schell, Appellant.
    Gen. No. 7,856.
    1. Equity — relief granted under prayer for general relief. There may he relief in equity under a prayer for general relief though complainant fails to prove all of the allegations of the bill.
    2. Appeal and error. — no reversal if proper result reached. If proper result has been obtained in the court below, a decree in equity will not be reversed because of erroneous rulings on exceptions to master’s report.
    3. Agency — public policy as to double agency. It is contrary to public policy for an agent, employed to negotiate a sale, purchase, lease or exchange, to make a contract for compensation with the other party to the transaction, though no actual fraud exists.
    4. Trusts — constructive trust as to profits of contract divided between one party and agent of other. Where owner of trucks entered into agreement with superintendent of public utility approving contracts and consideration paid for trucks to pay superintendent one-half of profits realized on contract, the moment he received any part or portion of the public utility’s money he became a trustee ex maleficio and subject to the jurisdiction of a court of equity, which will impress a constructive trust upon the money in his hands, though there was no actual fraud and the contract price was reasonable.
    5. Trusts — necessity for provision in decree protecting rights of one dividing profits with agent of another. Where defendant owner of trucks leased them to plaintiff and agreed with plaintiff superintendent to give the latter one-half of profits made, plaintiff was entitled to sue defendant and the superintendent, or either of them, and defendant cannot complain that a decree was not taken against the superintendent for his benefit where both were sued.
    Appeal by defendant from the Circuit Court of Sangamon county; the Hon. E. S. Smith, Judge, presiding. Heard in this court at the April term, 1925.
    Affirmed.
    Opinion filed October 27, 1925.
    Thomas D. Masters and Walter T. Day, for appellant.
    Vause & Kiger and Stevens & Herndon, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

Appellant brought a suit at common law against appellee to recover the sum of $4,714.20 on account of the leasing of motor trucks by him to appellee, and thereupon appellee exhibited its bill of complaint for an injunction and an accounting in the circuit court of Sangamon county against appellant and one William F. Gilman as defendants, and a temporary injunction was granted, restraining the prosecution of the action at law.

The bill charged that the appellee was a public service corporation and in the year 1920 and thereafter was engaged in extending service to various communities in central Illinois, and that in the construction of lines of wire to said communities it stood at that time in need of various motor trucks to be used by its servants. It was further charged that the defendant William F. Gilman was the general superintendent of the appellee company, and the only person in charge of appellee’s affairs in the division whereof Beardstown was headquarters and where appellant’s service was employed. It was further charged that the said William F. Gilman and appellant entered into a conspiracy for the purpose of leasing motor trucks to appellee at high and extortionate rates and were in partnership in the division of the profits upon such service and in pursuance thereof. The said Gilman, acting for appellee, entered into an agreement with the appellant to furnish the service of motor trucks for appellee, for which the appellant charged extortionate and unreasonable hourly rental charges and the profits thereof were divided between said appellant and Gilman, the agent and general superintendent of appellee.

Appellant answered the bill and filed a cross-bill, claiming and praying to recover a judgment against appellee for the sum of $4,714.20, the balance due on account for such service from appellee to appellant. Appellee answered the cross-bill, there were replications filed and the cause was submitted to the master, who took the testimony and made a report of his findings of fact and conclusions of law to the court, to which objections were filed by appellant and being overruled were made exceptions before the chancellor, and upon a hearing were overruled and a decree entered for appellee, finding appellant indebted to the appellee in the sum of $26.07 for which a judgment was entered against appellant and a perpetual injunction, restraining appellant from prosecuting said suit at law. Appellant has brought the record to this court for review. The defendant Gilman did not answer the bill and was defaulted. The master’s report, which was approved by the court, found that appellant and said Gilman were not copartners but that said Gilman was the general superintendent of appellee company, and that in February, 1920, appellee entered into an agreement with appellant, Schell, to rent motor trucks from said appellant at a stipulated rental per hour, with certain changes from time to time in the hourly rental rate, and that during the time of Gilman’s employment as general superintendent of appellee company, such agreement was subject to approval and was in fact approved by the said Gilman.

It was further found by the master that during said time, pursuant to an agreement entered into between the said Gilman and appellant, appellant paid to said Gilman the sum of $4,740.27 as a portion of the profits accruing to appellant from leasing said motor trucks, the agreement being, as testified to by appellant, that Gilman should have one-half of the profits after the trucks were paid for out of the rental earnings from appellee. It was further found that appellee had had no knowledge of the arrangement and that the rates charged by appellant for such motor truck rentals were reasonable and were the usual and customary rates for like services in the vicinity where furnished. The master found that the sum of $4,740.27 paid by appellant to Gilman became and was the property of appellee and that appellee was entitled to recover the same from either appellant or Gilman and that appellee was entitled to set off said sum against the amount owing by appellee to appellant and to have a decree for the balance in the sum of $26.07. There is no conflict in the testimony except as to whether Gilman approved the rates charged and upon that question the proofs are conclusive in support of the master’s report and the decree. Some question is raised by appellant that inasmuch as appellee has not proven all of the allegations of its bill, for example, that it has not proven that a partnership between appellant and Gilman existed, and that the rates charged by appellant were unreasonable and extortionate and that there is no proof that Gilman was a party to making or fixing the particular rates charged, that appellee is not entitled to equity upon its original bill. We cannot agree with appellant on this contention. The bill prayed for general relief.

The ultimate, final and only question in this court is, was the decree rendered by the court the proper one under the law and the evidence? Briefly stated, the question is, was the proper result obtained in the court below?

In Kelly v. Fahrney, 242 Ill. 240, at page 255, it is said:

“Without regard to the finding of the master upon any particular question of fact, the ultimate and final question in this court is, was the decree rendered by the court the proper one under the law and the evidence? If the proper result has been obtained in the court below the decree will not be reversed in this court because of alleged erroneous rulings on exceptions to the master’s report.”

In Chechik v. Koletsky, 311 Ill. 433, at pages 438-439, it is said:

“All the facts are open for the consideration, in the first instance, of the trial court, and in case of an appeal, by the reviewing court. Without regard to the finding of the master upon any particular question of fact, the ultimate and final question in this court is, was the decree rendered by the chancellor the proper one under the law and the evidence? Corbly v. Corbly, 280 Ill. 278; Kelly v. Fahrney, 242 Ill. 240; Fairbury Union Agricultural Board v. Holly, 169 Ill. 9.”

It is a well-settled rule, founded on grounds of public policy, that an agent employed to negotiate a sale, purchase, lease or exchange may not make a contract for compensation with the other party to the transaction. Cottom v. Holliday, 59 Ill. 176; Young v. Trainor, 158 Ill. 428; Bunn v. Keach, 214 Ill. 259; Law v. Ware, 238 Ill. 360; Stemm v. Gavin, 255 Ill. 480; Dennis v. McCagg, 32 Ill. 429; Davis v. Hamlin, 108 Ill. 39; Hair Co. v. Daily, 161 Ill. 379; Salsbury v. Ware, 183 Ill. 505.

The fact that no actual fraud exists, or that the principal is not actually injured, does not prevent the application of the above rule, which is not merely remedial of actual wrong, but is intended to be preventative of wrong. Fox v. Simons, 251 Ill. 321; Smythe’s Estate v. Evans, 209 Ill. 382; Gilman, C. & S. R. Co. v. Kelly, 77 Ill. 434; Consumers Co. v. Parker, 227 Ill. App. 552; Rasmussen v. Hansen, 176 Iowa 26; Rice v. Wood, 113 Mass. 133; Scribner v. Collar, 40 Mich. 375; 2 Pomeroy’s Eq. Jur. (4th Ed.), sec. 959, p. 2055; Conant v. Riseborough, 139 Ill. 383.

Appellant admits that he made the agreement to give Gilman one-half of the net profits, and in that state of the record the moment he received any part or portion of appellee’s money, he became a trustee ex maleficio, and subject to the jurisdiction of a court of equity. In such case, equity will impress a constructive trust upon the money in his hands. 3 Pomeroy’s Eq. Jur. (3rd Ed.), secs. 1052-1053, p. 2033; Barnes v. Thuet, 116 Iowa 359, 89 N. W. 1085; Michigan Trust Co. v. Probasco, 29 Ind App. 109, 63 N. E. 255; Pope v. Dapray, 176 Ill. 478; Reid, Murdoch & Co. v. Sheffy, 99 Ill. App. 189; Norton v. Hixon, 25 Ill. 439.

The facts in this case bring it within the broad ground of equity laid down in Fox v. Simmons, supra, in which the court holds (p. 321):

“The evidence is not controverted that defendants in error, Simmons and McCamey, at the time they obtained these leases, were salaried employees of plaintiff in error, with all their expenses paid. It is a familiar doctrine, frequently recognized by this court, that an agent cannot, either directly or indirectly, have an interest in the business of the principal, within the scope of his agency, without the consent of his principal, freely given, after full knowledge by the principal of every matter known to the agent which might in any way affect the interests of the principal, and it is of no consequence in such case that no fraud was intended, or that no advantage was, in fact, derived by the agent. (1 Perry on Trusts, 6th Ed., sec. 206; Tyler v. Sanborn, 128 Ill. 136; 1 Pomeroy’s Eq. Jur., sec. 155, Prince v. Dupuy, 163 Ill. 417.)”

We have examined all the cases cited by appellant and none of them state a different rule. Walker v. Marshall Field & Co., 179 Ill. App. 3, with the English cases cited, specifically affirms the rule and holds:

“That money was in law not Koenig’s money but the money of the plaintiff, and if the defendant paid over to Koenig with knowledge of the circumstances, money which was the plaintiff’s money, intending that Koenig should keep it for his own use, and that the plaintiff should be kept in ignorance of the payment, I think they are liable to the plaintiff for the amount. ’ ’

But appellant attempts to differentiate this case by contending there is no competent evidence tending to show that appellee’s employee, Grilman, either fixed or authorized the rental rate charged by appellant for the use of his motor trucks. On the contrary, the uncontradieted testimony is that Grilman knew of the rates charged, approved them and interested himself at different times to have appellant placed on the company’s regular pay roll and urged the payment of appellant’s bills in a more speedy manner.

Appellant’s objection to the testimony of the witnesses Clayton, Musser and Luecke as to agency was properly overruled. (Rice S Bullen Malting Co. v. International Bank, 185 Ill. 427; Pittsburg, C., C. & St. L. Ry. Co. v. Gage, 286 Ill. 220.) In this case appellee was entitled to sue appellant and Grilman or either of them and appellant cannot complain that a decree was not taken against Grilman for his, appellant’s benefit. (Tandrup v. Sampsell, 234 Ill. 530.)

Finding no error in the record, the decree of the circuit court of Sangamon county is affirmed.

Affirmed.


text:
    Katherine C. Pech, Executrix and Trustee under the Last Will and Testament of Adolph L. Pech, Deceased, Appellee, v. A. D. Landphere, Appellant.
    Gen. No. 7,873.
    1. Estates of decedents — statutes held only for benefit of creditors. Cahill’s St. ch. 59, ffl 10, 12, relating to “frauds and perjuries” and suits against heirs and devisees, are for the benefit only of creditors of an estate of a deceased person, and cannot be availed of by an heir.
    2. Equity — equitable conversion defined. Equitable conversion is that constructive alteration in the nature of property by which in equity real estate is considered for certain purposes as personalty and transmissible and descendible as such, or personal estate as realty.
    3. Equity — basis of doctrine of equitable conversion. Equitable conversion is an outgrowth or application of the maxim that equity regards that as done which ought to be done.
    4. Equity — prerequisites to application of doctrine of equitable conversion. It is essential to the application of the doctrine of equitable conversion that the property to be so treated should be subject to a trust or a clear and imperative direction for conversion.
    5. Wills — construction as to effecting equitable conversion. A will authorizing executrix to borrow money and execute notes and mortgages, and, if in her judgment it is deemed advisable, to sell real estate upon such terms as she may deem advantageous, the proceeds to be used if necessary to pay debts, held not to effect an equitable conversion.
    6. Estates of decedents — interest of representatives, in realty and income. Generally neither the executor nor the administrator has any inherent interest in title to or control over the realty of his decedent or the income therefrom.
    7. Descent and distribution — title to lands subject to direction to sell for payment of debts. If a provision in a will provides for the sale of land for the payment of debts or legacies or for the purposes of distribution, the executor does not take an interest in the real estate which would enable him to collect the rents and profits and manage and control the same, but the land goes to the heirs or devisees- with full power of possession and use subject to being divested by said sale.
    8. Descent and distribution — title of executrix to rents and profits where also sole devisee and life tenant. Where executrix was also sole devisee oí personalty and Hie estate in all real property which was heavily incumbered but which she was authorized to sell or reincumber to pay debts, held that income from the realty was held by her as devisee and not as executrix and hence was subject to a personal judgment against her.
    Appeal by defendant from the County Court of Logan county; the Hon. Lawrence B. Stringer, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed and remanded with directions.
    Opinion filed October 27, 1925.
    Stone & Taylor, for appellant.
    Miller & Miller, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

This is an appeal from a judgment rendered by the county court of Logan county in a case involving the trial of the right of property. Appellant was the owner of a judgment note signed by A. L. Pech and appellee, who was his wife. Pech died about the first of December, 1921. The note was duly filed as a claim against the estate, it being filed by the Lincoln State Bank of Lincoln, and the claim being for the sum of $1,845.42, which represented the principal of the note and accrued interest at that time. Appellee, the signer of the note, was duly appointed and qualified as executrix of her husband’s estate and is still acting in that capacity. He left real estate to the extent of about 260 acres, being two farms, one of 160 acres which was incumbered with a mortgage of $20,000, and the other, known as the “Home Farm,” of 100 or 103 acres, 70 of which were incumbered with a mortgage of $10,500. He also left personal property as shown by the inventory to the value of $11,573.88. Pech left a will and by the second clause of said will, after the payment of his debts, he devised all of his personal property to appellee absolutely. The third clause of the will is:

“I also give and devise nnto my beloved wife Katherine 0. Pech, all real estate of which I may die seized, of whatsoever the same may consist or wheresoever the same may be located, to have and to hold for and during the period of her natural life; Provided, however, I hereby authorize and empower my said wife, as executrix to borrow any sum or sums of money necessary to pay my debts, including debts secured by mortgages upon my real estate, and to execute and deliver promissory notes evidencing such debts and I authorize my said wife as executrix to execute, acknowledge and deliver any mortgage or mortgages or trust deed or deeds upon any of my real estate to secure the payment of said note or notes and I further authorize and empower my said wife as executrix, if in her judgment it is deemed advisable, to sell and by proper deed or deeds of conveyance to convey all or any part of my real estate, upon such terms as she may deem advantageous, the proceeds thereof to be used, if necessary, to pay my debts and in case the proceeds of any such sale are more than sufficient to pay my debts and costs of administration, any excess shall be reinvested by my said wife as executrix in either safe income producing securities or in other real estate the use and income therefrom only to be used by my said wife for the support of herself and children, provided, however, my said wife shall have the right from time to time to use such part of the principal of my estate, whether real or personal, as may be necessary for the proper support and maintenance of herself and the proper maintenance, support and education of my children. Upon the death of my said wife Katherine 0. Pech, the remainder of my estate whether real estate or the proceeds of the sale of real estate, I hereby give, devise and bequeath to my children share and share alike, the child or children of any deceased child to take the share the parent would have taken if living.”

At the time of the controversy in question, appellee, as executrix under the will, had collected personal assets belonging to the estate, which included all of the personalty to the amount of $10,619.99, and had paid debts and claims amounting to the sum of $11,447.77, having advanced $827.78 of her own funds with which to make such payments. In addition to the mortgages there still remained debts and claims allowed against the estate to the amount of $6,118.22 and claims not allowed in the sum of $423.76.

On December 13, 1924, appellant took judgment on his note against appellee and a fieri facias issued out of the circuit court of Logan county on the same date, and under and by virtue of said fieri facias and judgment the sheriff of Logan county levied upon an undivided half interest in corn in the crib on the “Home Farm,” as being the property of appellee. This “Home Farm” had been managed and controlled by appellee subsequent to the death of her husband, and during the year 1924, the year in which the com in question was raised, she had rented the farm to Moses Brining as tenant, under a lease agreement, wherein one-half of the grain raised was to be delivered over by him as rental. At the time the levy was made the com was still in the crib and had not yet been divided. After the levy had been made appellee filed a notice with the sheriff of Logan county stating that the com was not her individual property, but was an asset of the estate of her husband, Adolph L. Pech, and that as executrix of said estate she intended to prosecute a claim to the same. The matter was set for a hearing and under a statement of facts stipulated by both parties a judgment was rendered in the county court of Logan county finding for the plaintiff, appellee, as executrix, and that the com was an asset of the estate of Adolph L. Pech, deceased. From this judgment the defendant appeals.

Appellee attempts to support the finding in the lower court under the provisions of section 10, ch. 59, of the Revised Statutes, entitled “Frauds and Perjuries” [Cahill’s St. ch. 59, J[ 10], which provides that ány testamentary disposition of real estate, or the

rents out of the same, shall he null and void as to creditors, and section 12 of the same chapter [Cahill’s St. ch. 59, If 12], which provides for suits in proper cases against heirs and devisees; but it has been repeatedly held that the benefit of the sections cited could only be availed of by a creditor of the estate of a deceased person. Fry v. Morrison, 159 Ill. 244;

Calhoun v. Tangany, 105 Ill. App. 23; Richardson v.

Richardson, 87 Ill. App. 358, and Richardson v. Ran-son, 99 Ill. App. 262. In Richardson v. Richardson, supra, the court said:

“The law is so familiar in this State as to require no citation of authorities, that the administrator or executor, so far as creditors are concerned, takes the property of the deceased person precisely as it was left at the time of decease, whether such condition is the result of the operation of the law, or the act of the party himself. He is the representative of the intestate or testator, and succeeds to his rights and interests, and is not the agent or trustee of creditors, and as to the latter it can make no difference whether there be a will or not, for in either case he is entitled to prove his claim and participate in the distribution of the assets as the law directs. If fraudulent conveyances, or other fraudulent disposition of property by the deceased person should intervene to affect his rights prejudicially the creditor alone and not the representative can invoke the remedy.”

Appellee is not a creditor of the estate, but a devisee and legatee under the will in addition to being the executrix. Appellant is not invoking the aid of the Frauds and Perjuries Act, and appellee is not the representative of any creditor or claimant of the estate or entitled in her own behalf to invoke the aid of these sections, as they can be invoked by a creditor only. In fact, this suit is between two individuals in their personal capacity and the question of the will or estate has no bearing upon the issues involved except to trace the source of appellee’s title to the corn in question. The will devised to appellee the life use of the lauds upon which the crop was raised, and the corn was raised by appellee’s tenant, one-half of the crop in the crib, by the lease, to be appellee’s rental for the land.

The testator, Pech, in the first clause of the will, provided for the payment of all his just debts and funeral expenses by his executrix in due course of administration, and the devise of the life estate in the lands to appellee, by its terms, is made subject to the payment of his debts. Appellee insists that these provisions create a charge upon the lands for the payment of debts and that when it becomes necessary to sell lands to pay debts the rents or profits arising from devised real estate are considered the same as real estate.

In Decker v. Decker, 121 Ill. 341, the court said that the formula “after the payment of my funeral expenses and just debts, I give,” etc., preceding a disposition in a will of both real and personal property, indicated a purpose not to specifically charge the testator’s realty, but to make all gifts in the will, whether of real or personal property, subject to the payment of debts. In Harris v. Douglas, 64 Ill. 466, where the will provided for the payment of debts out of the personalty and, if that was insufficient, then the exec- . utor was authorized to sell so much of the realty as was necessary to pay the debts, the court held, on page 471, that no specific property was charged by the will with the payment of debts; that such provisions do not create any specific charge on the real estate other than the law creates. Bucher v. Bucher, 86 Ill. 381.

We have examined all of the cases cited by appellee, but they do not support appellee’s contention as applied to the facts in this case.

Appellee further contends that when the general scheme of a will requires a conversion of the real estate, the power of sale, although not imperative, operates as an equitable conversion. Equitable conversion may be defined as that constructive alteration in the nature of property by which in equity real estate is considered for certain purposes as personalty and transmissible and descendible as such, or personal estate as realty. It is an outgrowth or application of the old maxim that equity regards that as done which ought to be done, and therefore, to the operation of the doctrine, it is essential that the property to be so treated should be subject to a trust or a clear and imperative direction for conversion. Haward v. Peavey, 128 Ill. 430; Ducker v. Burnham, 146 Ill. 9. “There must be an expression, in some form, of an absolute intention that the land shall be sold and turned into money, or that the money, shall be expended in the purchase of land. * * * If the act of converting is left to the option, discretion or choice of the trustees or others charged with making it, no equitable conversion will take place, because no duty to make the change rests upon them.” [Haward v. Peavey, supra, p. 435.]

The testator’s estate was involved; there were farms incumbered by mortgages in large amounts. The will authorized the executrix to borrow money and to execute notes and mortgages or trust deeds and he authorized his executrix, “if in her judgment it is deemed advisable, to sell and by proper deed or deeds of conveyance to convey all or any part of my real estate, upon such terms as she may deem advantageous, the proceeds thereof to be used, if necessary, to pay my debts.”

This is far from a peremptory devise to sell and does not effect an equitable conversion. Appellee further contends that the executrix is vested with the powers of a trustee over this property for the benefit of the creditors and for the payment of debts. This construction might be placed upon any will which provided for the payment of testator’s debts. It was held in West v. Fitz, 109 Ill. 435: “While it may savor somewhat of technical refinement and astute discrimination, it is clearly settled by the general current of English and American authority, that if a testator, by his will, simply directs his executor, or a trustee, to sell real estate and apply the proceeds to certain specified purposes, such executor or trustee will take a power only; whereas, if the devise be to the executor or trustee to sell and apply the proceeds, etc., such executor or trustee will take an estate in the land, and not a mere power. (2 Washburn on Real Prop. 661.) ” The same rule is laid down in Drake v. Steele, 242 Ill. 310. Certainly, so far as the debts are concerned, there is no language in the will that contravenes the provisions of the first clause of the will that the debts are to be paid in the due course of administration. Under the common law, the personal representative of an estate had no right, title or interest in or to the rents and profits of real estate accruing after the death of the decedent. (Dixon v. Niccolls, 39 Ill. 372; Pritchard v. McGregor, 205 Ill. App. 362; Hollahan v. Sowers, 111 Ill. App. 263.) The courts of this State follow the common-law rule and hold that, generally, neither the executor nor the administrator has any inherent interest in, title to or control over the realty of his decedent or the income therefrom. (Anderson v. Shepard, 285 Ill. 544; Emmerson v. Merritt, 249 Ill. 538; Sherman v. Dutch, 16 Ill. 285.) If a provision in a will provides for the sale of land for the payment of debts or legacies, or for the purpose of distribution, the executor of the estate does not take an interest in the real estate which would enable him to collect the rents and profits and manage and control the same, but the land goes to the heirs or devisees, with full power of possession and use, subject to being divested by said sale. (Pritchard v. McGregor, supra; Bucher v. Bucher, 86 Ill. 377; Smith v. Hunter, 241 Ill. 516; Richardson v. Richardson, 87 Ill. App. 354; 24 Corpus Juris, p. 139, and cases cited.)

Bucher v. Bucher, supra, was a case nearly identical with the case at bar, and the court held that the executrix, as executrix, had nothing to do with the rents and profits of land but that such rents and profits were the property of the executrix, as devisee. It follows that the judgment of the county court of Logan county should be and is reversed and the cause remanded with directions to that court to enter a judgment finding that the right of property in the corn in question was in the sheriff of Logan county, under the execution issued upon appellant’s judgment.

Reversed and remanded with directions.


text:
    S. A. Wilson, Defendant in Error, v. M. L. Mundy et al., Plaintiffs in Error.
    Gen. No. 7,880.
    1. Deeds of conveyance — assumption clause not essential part of deed. An assumption clause in a deed is not an essential part of the deed, but is a stranger to the deed.
    2. Mortgages — conveyance “subject to mortgage.” A conveyance of land by deed containing clause “subject to mortgage” creates no personal liability on the part of the grantee to pay the outstanding incumbrance, unless he has specially agreed to do so or the amount of the incumbrance has been deducted from the purchase price.
    3. Vendor and purchaser — equitable title passed under contract for exchange. Under a completed contract to exchange land in writing and containing all of the covenants and agreements between the parties and reciting and covering all matters of consideration between the parties, equitable title to the properties was transferred to the respective purchasers just as effectually as though the deeds and conveyances had been delivered.
    4. Vendor and purchaser — vendee had right to rely upon conduct of grantor’s agent. Vendee had right to rely upon actions and conduct of agent of creditors who was trusted by him to draft a deed and effect transfer of papers in accordance with contract and was not bound by a clause in the deed assuming payment of mortgage contrary to the intention of the parties.
    5. Mortgages — mortgagee cannot tahe advantage of fraud of mortgagor grantor. Mortgagee cannot be permitted in a court of equity to take advantage of fraud of mortgagor grantor in inserting an assumption clause in a deed of the land.
    6. Pleading — laches must be alleged. In action by mortgagee seeking to hold grantee of land personally under an assumption clause where defendant set out fraud of the mortgagor in inserting the assumption clause in the deed, it was necessary for the plaintiff, if he desired to raise the issue of laches, to amend his bill and charge the fact that estopped defendant to raise fraud.
    7. Pleading — issue raised by general replication. The only issue raised by a general replication is as to the truth of the matters charged in the answer.
    8. Equity — facts warranting relief must be alleged. No relief can be given in a court of equity unless the facts warranting such relief are alleged in the bill.
    9. Equity — doctrine of laches stated. Courts of equity apply the doctrine of laches in denial of relief sought when the statutory period of limitations has not expired only when from all the circumstances in evidence to grant the relief to which complainant would be otherwise entitled will presumptively be inequitable and unjust to the defendants because of the delay.
    10. Contracts — modification without consideration void. Though rights under a contract under seal may be waived, an attempted modification which only adds an obligation upon one party is void if without consideration.
    11. Contracts — not enforced in absence of consideration. An ex-ecutory contract without consideration cannot be enforced in a court of either law or equity.
    12. Contracts — sealed contract not modified by parol. A sealed executory contract cannot be altered, changed or modified by a parol agreement.
    13. Contracts — seal opposite first signer renders instrument sealed. But one seal appearing opposite name of first signer renders an instrument sealed.
    Error by defendants to the Circuit Court of Tazewell county; the Hon. John M. Niehahs, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed in part and affirmed in part.
    Opinion filed October 27, 1925.
    W. J. Reardon and D. D. Donahue, for plaintiff in error D. D. Donahue.

      R. L. Russell and C. J. Lynch, for defendant in error.
   Mr. Justice Shurtleff

delivered the opinion of the court.

The questions involved in this record are: Mrst, whether plaintiff in error, Donahue, assumed the payment of certain mortgage indebtedness held by defendant in error as mortgagee, in plaintiff in error’s purchase from or exchange of lands with defendants Mundy and Scott; and second, if there was such an assumption of indebtedness, whether there was any consideration accruing to plaintiff in error for the contract.

The facts out of which this case arose are as follows: the defendants Mundy and Scott of Marshall-town, Iowa, on December 30, 1919, were the owners of a farm consisting of 280 acres of land, situated in Tazewell county, this State. On September 10, 1916, Mundy and Scott executed to plaintiff in error a trust deed to secure the payment of ten coupon notes, each for the sum of $500, drawing interest at the rate of 5 per cent per annum, and to become due on the 10th day of September, 1921. This trust deed was a first lien upon said lands. Upon October 30, 1916, said Mundy and Scott executed a mortgage to appellee to secure the payment of one note for $5,000, of the same date, which was to become due December 11, 1919, covering the same lands, and this was a second security, and there were no options of any kind in the second note or mortgage to the makers. This second mortgage indebtedness was to draw interest at the rate of 5y2 per cent per annum. On the 24th day of September, 1919, by a written agreement entered into between Mundy and Scott and defendant in error this second mortgage indebtedness was extended for a period of three years from December 11, 1919, to December 11, 1922, under the same terms and conditions provided in said note and mortgage, except the said indebtedness was to draw interest during the extension period at the rate of 6 per cent per annum, payable semiannually. The trust deed and mortgage were duly recorded. The extension agreement of the second mortgage was never recorded.

Plaintiff in error, Donahue, on the 30th day of December, 1919, was the owner of a farm consisting of 174 acres, situated in Monona county, Iowa, and there was a mortgage upon this farm of $8,000, drawing interest at the rate of 5 per cent per annum. On said 30th day of December, 1919, Mundy and Scott entered into a written contract and agreement to exchange said farm in Tazewell count, Illinois, with plaintiff in error for his 174-acre farm in Monona county, Iowa. The exchange was to be made and conveyances executed to the other party in each case, “subject to the said mortgages” and it was agreed on the. part of Mundy and Scott that the said first mortgage on the Tazewell county lands was drawing interest at the rate of 5% per cent per annum and the second mortgage at the rate of 5 per cent per annum, and Mundy and Scott further agreed, “that none of said mortgages should become payable before September 1st, 1921,” and plaintiff in error agreed that the mortgage on the Iowa farm become due July 1, 1927.

It was agreed that in consideration of said transfer and exchange, Mundy and Scott should execute and deliver to plaintiff in error a second mortgage upon the farm in Iowa for $13,150, securing four notes, three for $3,000 each, falling due on March 1, 1921, 1922 and 1923, respectively, and a fourth note for $4,150 to become due March 1, 1924.

It was further provided that the contract, which was to be carried out on or before March 1, 1920, should, with the covenants, and agreements therein contained, extend to the heirs, executors, administrators and assigns of the respective parties, etc., and the contract, to the extent of plaintiff in error’s signature, was under seal. It is the undisputed proof that before this contract was executed, the subject of assuming mortgages was discussed and plaintiff in error refused to enter into any contract that contained an assumption of the mortgages. It was further shown that plaintiff in error entered into the possession of the Tazewell county lands, and Mundy and Scott entered into the possession of the Iowa lands either late in January or early in February, 1920, before any conveyances were executed. It is undisputed that Mundy and Scott at no time informed plaintiff in error about the extension of the second mortgage and never recorded said agreement for extension, nevertheless, some time in the winter of 1920, after said contract of exchange had been entered into, Mundy and Scott, upon the pretext that there was a conflict between the terms of said exchange contract and the mortgage notes, induced plaintiff in error to sign a statement in their office at Marshalltown Iowa, written by them as follows:

“Mundy & Scott,
Real Estate Brokers,
Marshalltown, Iowa.
“This agreement made in explanation of the contract of the 30th day of December, 1919, in which certain paragraphs of a contract between D. D. Donahue and M. L. Mundy and R. W. Scott conflict: It is agreed between the parties that the said M. L. Mundy and R. W. Scott shall make the mortgage draw five and one-half per cent interest and if they draw more than that they shall reimburse the said Donahue, and the said Donahue agrees to pay the second mortgage on or before September 1st, 1921.” Signed by D. D. Donahue, M. L. Mundy and R. W. Scott.

Plaintiff in error, Donahue, testifies that the clause about payment of the second mortgage on or before September 1, 1921, was not in the instrument when he signed it at Marshalltown, and that the statement covered solely the subject of the rate of interest. In this, plaintiff in error is not contradicted. Plaintiff in error further testifies that Mundy and Scott had agreed to secure an extension of the second mortgage to September 10, 1921, so that both mortgages would come due at the same time, and that he had informed them that he could not handle the property at all with the mortgages coming due at different dates, and this is not contradicted, but, so far as plaintiff in error knew, no extension of time had been secured on the second mortgage when the deeds were exchanged in March, 1920.

The respective deeds and the mortgage and notes to plaintiff in error on the Iowa farm were prepared in the office of Mundy and Scott in Marshalltown, Iowa, and they were sent by their agent, Howe, to Bloomington to effect the transfer with plaintiff in error in the latter part of March, 1920. Howe called up plaintiff in error and fixed the time for the transfer. Howe arrived at plaintiff in error’s office in the forenoon and was in a great hurry, as he desired, so he stated, to leave Bloomington on a train in twenty minutes or half an hour. Plaintiff in error and the witness Smith met him. Plaintiff in error asked Howe if the papers were all drawn in accordance with the agreement of December 30, 1919, and Howe assured bim they were. Plaintiff in error suggested that they should compare the descriptions of the land and plaintiff in error took the abstracts and read the descriptions and Howe checked the instruments. Howe declared the instruments correct and the deed to the Iowa land was turned over by plaintiff in error to Howe and Howe delivered Mundy and Scott’s deed to the Tazewell county farm and the notes and mortgage for $13,150 on the Iowa land to plaintiff in error and Howe hurried to his train. Plaintiff in error without examining the deed to the Tazewell county farm, upon which Mundy and Scott had attached revenue stamps of $13.50 only, inclosed it in an envelope with the fee, and mailed it to the recorder of deeds at Pekin. Before the return of the deed, plaintiff in error had departed for Iowa, where he was engaged in farming operations and never did see the deed again until in March, 1922. The deed contained a clause, “subject to two mortgages of five thousand dollars each, which grantee assumes and agrees to pay.” The only information plaintiff in error ever had that there was such a clause in the deed was when one of the defendants informed plaintiff in error in Iowa, in the late fall of 1921, that the deed contained such a clause, and plaintiff in error, upon bis return to Illinois, hunted for the deed, Which had become lost and which he did not find until March, 1922.

In entering into the contract with Mundy and Scott on December 30, 1919, Mundy and Scott had made representations to plaintiff in error that they were partners, and had represented to plaintiff in error particular properties which they owned and various businesses in which they were engaged, which rendered them solvent and men of wealth on December 19,1919. Plaintiff in error relied upon these representations, without which plaintiff in error would not have entered into the contract. On December 30,1919, Mundy and Scott were not partners and were insolvent. There was an adjustment of the first year’s interest by Mundy and Scott with plaintiff in error upon the $13,150 mortgage indebtedness on the Iowa farm, since which time Mundy and Scott have made default and have paid nothing on said indebtedness.

Plaintiff in error was not able to secure the recording of his mortgage for $13,150 in Iowa, and dispose of said mortgage paper in 1920, for the reason that Mundy and Scott did not record their deed for nearly ten months after it was given, and plaintiff in error, though he frequently solicited them, could not get them to record said deed. Plaintiff in error claims to have lost the benefit of a considerable amount of said mortgage paper by reason of the slump in land values in the latter part of 1920.

Plaintiff in error on August 20, 1920, conveyed the Tazewell county lands to one John W. Bckley, and the title of the farm has passed through the hands of a number of purchasers. Under the allegations in the bill we do not find, as argued by counsel, that Bckley assumed and agreed to pay the mortgages, but it is alleged that the amount of said mortgages was reserved by Bckley out of the contract price of said lands, and Bckley and others were joined as defendants.

The statement of the facts as recited is shown by the exhibits and the uncontradicted testimony of plaintiff in error and the witness Smith.

In July, 1922, defendant in error, residing at Mechanicsville, in the State of Iowa, presented this bill to foreclose said mortgages on the Tazewell county farm. The bill made Mundy and Scott of Marshall-town, Iowa, defendants, and they entered their appearance in writing in this cause and have suffered a personal deficiency judgment to be taken against them.

Defendant in error in his bill sets out the assumption clause, in the deed from Mundy and Scott to plaintiff in error, and relies upon that clause in the deed and that plaintiff in error retained out of the purchase price of said lands sufficient funds to pay said indebtedness, as the only grounds of recovery against plaintiff in error. Plaintiff in error answered the bill, setting out the contract entered into by him with Mundy and Scott on December 30, 1919, and setting out all the other facts and circumstances as recited in this opinion, except as to the agreement signed at Marshalltown, Iowa, with Mundy and Scott in the winter of 1920, which agreement is known as complainant’s exhibit 15.

There was a general replication and upon proofs heard before the master, with no findings of fact as to the particular matters set forth in plaintiff in error’s answer, the court overruled the objections which had been made exceptions before the chancellor, and entered a deficiency decree against plaintiff in error, together with the other defendants, for the sum of $4,401.46, and plaintiff in error has sued out this writ.

By the record it is shown that the lands sold for a sufficient sum to pay the first mortgage and a portion of the second mortgage, together with the costs, and that the deficiency all grows out of the second mortgage.

Plaintiff in error has assigned various grounds of error, some of which, at least, are entitled to the consideration of the court. Some assignments of error are urged by plaintiff in error and cases cited that we do not deem applicable to the case. The abstract furnished is not in keeping, in all respects, with the rules of this court, but owing to the importance of the legal principles involved, the writer of this opinion has carefully searched the record and made the statement of the case from what the record fairly and without contradiction presents. The case presented to any nisi prius court, in the midst of trial work, in the manner presented here, doubtless would meet with short shrift. Defendant in error relies upon and argues only the usual and virile principle, that a purchaser, accepting a deed containing an assumption clause, knowingly becomes personally liable to pay the debt. There is little in defendant in error’s brief to aid the court in the questions involved upon this record, some of which are of first impression to the courts of this State. Defendant in error, by his bill, charges liability, based upon the assumption clause in the deed and upon the implied contract, by retaining sufficient of the consideration moneys for said land to pay the mortgage indebtedness. We shall consider the case first, considering the agreement known as exhibit 15, as though it were not in the case. It has been held that the assumption clause is not an essential part of the deed but is a stranger to the deed. Thompson v. Dearborn, 107 Ill. 92; Leipold v. Epler, 198 Ill. App. 621.

In Thompson v. Dearborn, supra, the court held: “A contract to assume an incumbrance on land purchased is not one of the essential parts of a deed of conveyance, — indeed, such a contract is a stranger to a deed, — and when the complainants in the bill undertook to bind Thompson by an averment, they should, in some mode, allege the making of a contract between Funk and Thompson, under which the latter would be bound to pay and discharge the mortgage indebtedness. The mere fact that Funk and his wife executed and acknowledged a deed, and inserted therein a clause that Thompson should pay the mortgage named in the deed, would not create a personal liability upon him.” And the general rule has been followed in this State: 11 That where a person becomes the purchaser of real estate by deed, which at the time is incumbered by mortgage, and in the deed conveying the property it is stipulated and agreed that the purchaser assumes and agrees to pay the mortgage as a part of the consideration, the contract creates a personal liability on the purchaser in favor of the holder of the mortgage, which may be enforced in an appropriate action” (Thompson v. Dearborn, supra), “and the rule is the same, although there be no assumption of payment of the indebtedness, if the purchase be made expressly sub-, ject to the incumbrance, and the amount of the indebtedness thereby secured is included in and forms a part of the consideration of the' conveyance. ” (Drury v. Holden, 121 Ill. 137.) This has been the rule in Illinois from the earlier cases. Comstock v. Hitt, 37 Ill. 542; Fowler v. Fay, 62 Ill. 375; Rogers v. Herron, 92 Ill. 583; Rapp v. Stoner, 104 Ill. 618; Daub v. Englebach, 109 Ill. 267, and the later cases have stated the rule to the same effect, with greater terseness. In Fowler v. Fay, supra, the court held as to a deed made subject to a mortgage. “But it was decided by this court in Comstock v. Hitt, 37 Ill. 546, that such a clause in a deed creates no personal liability on the part of the grantee to pay the outstanding incumbrance, unless he has specially agreed to do so, or the amount of the incumbrance has been deducted from the purchase price.”

Plaintiff in error in the case at bar purchased the lands or agreed to exchange lands under the contract of December 30, 1919. That was a completed contract, in writing, and contains all of the covenants and agreements between the parties, and recites and covers all matters of consideration between them. Under this contract, the equitable title to the properties was transferred to the respective purchasers, just as effectually as though the deeds and conveyances had been delivered. Mundy and Scott became trustees for plaintiff in error of the title to the Tazewell county farm. Plaintiff in error, by the contract, was fully vested with the equitable title to said lands. (Sutherland v. Goodnow, 108 Ill. 528; Rhodes v. Meredith, 260 Ill. 143.) Plaintiff in error also, under the contract, had fully paid Mundy and Scott for the Tazewell county farm and merely held the legal title of the lands in Iowa as trustee for Mundy and Scott. But Mundy and Scott had not paid plaintiff in error the full consideration for the Iowa lands. Under the terms of the contract between the parties, which was under seal, plaintiff in error was entitled to and agreed to accept title to the Tazewell county farm “subject to” the mortgages in question. This was an express contract, and the contract between the parties and excludes and eliminates any possibility that there could have been an implied contract to assume and pay. (Walker v. Brown, 28 Ill. 378; Phelps v. Hubbard, 59 Ill. 79; Siegel v. Borland, 191 Ill. 112; Brougham v. Paul, 138 Ill. App. 460; City of Chicago v. Chicago Rys. Co., 228 Ill. App. 588:) In the last case it was held:

“As in physics, two solid bodies cannot occupy the same space at the same time, so in law and common sense, there cannot be an express and an implied contract for the same thing, existing at the same time.”

In Siegel v. Borland, supra, the court said: “It is only where the parties do not expressly agree that the law implies a promise.” The contract of the parties having expressly provided that Mundy and Scott should convey and plaintiff in error should receive and accept title, “subject to the mortgages,” there is no language found in the contract that creates an assumption or an express agreement to pay the mortgage indebtedness. (27 Cyc., p. 1343; Siegel v. Borland, 191 Ill. 111; Crawford v. Nimmons, 180 Ill. 143; Ray v. Lobdell, 213 Ill. 395; Assets Realization Co. v. Heiden, 215 Ill. 9; Scholten v. Barber, 217 Ill. 151; Lane v. Davis, 158 Ill. App. 653, and Hirschl v. Meeker’s Estate, 185 Ill. App. 626.)

In Assets Realisation Co. v. Heiden, supra, the court held: “A purchaser may assume a mortgage indebtedness, according to the terms of the mortgage, without it being expressly so provided in the deed of conveyance, but in the absence of a written assumption the evidence must be clear and show that the assumption was in fact made.”

In Crawford v. Nimmons, supra, it was held: “A deed which is merely made subject to a mortgage, specified in it, does not render the grantee personally liable for the mortgage debt. To create such a liability there must be something in the nature of a personal, contractual obligation, which amounts to an agreement on the part of the grantee to pay off the encumbrance. (Fowler v. Fay, 62 Ill. 375; Rapp v. Stoner, 104 Ill. 618; Comstock v. Hitt, 37 Ill. 542; 1 Jones on Mortgages, see. 748; Consolidated Coal Co. v. Peers, 166 Ill. 361; 15 Am. and Eng. Ency. of Law 832.)”

In Siegel v. Borland, supra, the court said on page 111: “Either there must be an express assumption of the indebtedness, or the amount must be allowed in the purchase price, so that the law will imply the promise,” citing numerous cases, supra. The court further held in Siegel v. Borland, supra: “In this case there was no retention by the grantees of any part of the agreed purchase price for the encumbered property. The transaction consisted of a trade, in which Howard P. Simmons conveyed The Cambridge, subject to the trust deed, and block 44 in Cornell, to Philipsborn, as trustee for The Grand, and paid $25,000 in cash and notes, and assumed the leases on the premises occupied by The Grand, at the corner of State and Adams streets, in Chicago. The consideration given to Simmons was the stock of merchandise of The Grand and other merchandise, to bring the amount, at invoice prices, up to $95,000 * * * and the leases on the premises held by the Siegels. The $25,000 was received as a part of the consideration for the merchandise and fixtures transferred to Simmons and not retained out of the consideration for The Cambridge.”

The rule in this State has been tersely stated, from all of the authorities, in Ray v. Lobdell, supra: “The rule to be deduced from the authorities is, if the vendee of land encumbered by mortgage or trust deed, purchases only the vendor’s equity of redemption, he is not personally liable to pay the encumbrance resting upon the land unless he expressly assumed and agreed to pay the same. If, however, he purchases land for its full value and retains in his hands, out of the consideration, a sufficient sum to satisfy the encumbrance, he may be held personally liable for the payment thereof, even though he has not expressly agreed to pay the encumbrance resting upon the land.”

Measuring plaintiff in error’s rights and liabilities by the terms of the contract of December 30, 1919, it is plain that there was no express contract to assume and pay the mortgage indebtedness, and under the authority of Siegel v. Borland, supra, and Ray v. Lobdell, supra, and the cases cited, there was no implied contract, in the exchange of equities and farms, upon plaintiff in error’s part to pay or assume the mortgage indebtedness. In fact, plaintiff in error had or retained no part of any consideration. He conveyed to Mundy and Scott all that he owned in the Iowa lands and upon their false and fraudulent representations plaintiff in error accepted their notes for $13,150, which were defaulted. But the assumption clause, by the trick and device set out, is found in the deed executed in the latter part of March, 1920, and found in plaintiff in error’s hands. It is uncontradicted that plaintiff in error never knew anything about this assumption clause until the month of March, 1922, about four months before the bill was filed. Plaintiff in error had the right to rely upon the actions and conduct of Howe, the agent of the grantors, who was trusted by plaintiff in error to draft the deed and effect the transfer of the papers. It is held in Bradshaw v. Provident Trust Co., 81 Ore. 55, 158 Pac. 274, that where a party to a written contract is intrusted by another to draw a written instrument to accord with a written agreement, he will he held strictly to the faithful performance of the trust so imposed, and will not be heard to say that the party defrauded should not have placed confidence in him. Defendant in error cannot be permitted, in a court of equity, to take advantage of this fraud. (Leipold v. Epler, 198 Ill. App. 621; Wood v. Calland, 86 Ill. App. 42, and Sutter v. Rose, 169 Ill. 66.) In the Leipold case it was held: “An undertaking by a grantee recited in a deed is collateral to it, and if the promise fail or be shown to have been the result of fraud or mistake, the undertaking will not be enforced.” In Wood v. Calland, supra, and Sutter v. Rose, supra, similar situations were presented, and the cases were tried upon the theory that the fraud charged entitled the grantee to relief, but in Wood v. Callmd, supra, the grantee had filed a bill to reform the deed and the court held that it was the duty of the grantee, at the earliest opportunity after discovering the fraud, to move to correct it the same as in general actions for fraud, and held that the complainant by waiting several years was guilty of laches. The answer of defendant pleaded laches against the complainant. Sutter v. Bose, supra, was an action at law and the case went off on the question of laches, which was one of the issues in the case. The issue of laches is not in this case. Plaintiff in error set out all of the detail as to the fraud in his answer and if defendant in error had desired to raise the issue of laches he should have amended his bill and charged the fact that rendered plaintiff in error estopped to raise the question of fraud in this case. (Ogden v. Stevens, 241 Ill. 563; Brockway v. McClun, 243 Ill. 196.) In the latter case it is held: “A general replication puts in issue the truth of the answer. If the averments of the answer are to be met by new matter, by way of avoidance, it is proper to plead such new matter by amendment of the bill.”

The only issue raised by the general replication is as to the truth of the matters charged in the answer. Stone v. Moore, 26 Ill. 165; Brown v. Scottish-American Mortgage Co., 110 Ill. 235; Puterbaugh’s Chancery Practice, 6th ed., 199.

It was further held in Kane v. Hudson, 273 Ill. 352: “It therefore became necessary to amend the bill for the reason that special replications in equity are not permitted, and a complainant must put in issue any fact in avoidance of a matter of defense set up by the defendant by proper charges in the bill of complaint. Tarleton v. Vietes, 6 Ill. (1 Grilm.) 470; White v. Morrison, 11 Ill. 361”; and Troup v. Hunter, 300 Ill. 112.

This defendant in error did not do but is relying upon the allegations in his bill as follows: “That said premises were received by D. D. Donahue, subject to two mortgages of $5,000 each, which he assumed and agreed to pay * * * and that the amount of said encumbrances was included in and formed a part of the consideration which said D. D. Donahue paid for the premises, and he retained out of said consideration a sufficient sum to satisfy said encumbrances. ’ ’ These allegations are denied by plaintiff in error’s answer, and in addition plaintiff in error makes specific defenses. Defendant in error offered no testimony, except the notes and securities, exhibit 15, and the trustee in the trust deed, who testified to- the ownership of the notes and the computation of interest. Defendant in error must rely upon the allegations in his bill. It is held that no relief can be given, in a court of equity, unless the facts warranting such relief are alleged in the bill. The rule in equity is: “A party must stand or fall by the case made by his bill.” Troup v. Hunter, 300 Ill. 112; McKay v. Bissett, 10 Ill. (5 Gilm.) 499; Schmitt v. Weber, 239 Ill. 388; Chicago, P. & St. L. R. Co. v. Jacksonville R. & Light Co., 245 Ill. 165.

If defendant in error were permitted to raise the question of laches, he is confined to the rule in equity that courts of equity apply the doctrine of laches in denial of relief sought when the statutory period of limitations has not expired, only when from all the circumstances in evidence to grant the relief to which complainant would be otherwise entitled will presumptively be inequitable and unjust to the defendants because of the delay. (Puterbaugh’s Chancery Practice, 6th ed., 591; Coryell v. Klehm, 157 Ill. 462; Ross v. Payson, 160 Ill. 349; Stiger v. Bent, 111 Ill. 328.) In an identical case, Merriman v. Schmitt, 211 Ill., at page 267, the court held:

“Assuming, as we must, that he had no reason to suppose that the deed to him contained a personal contract on his part to pay the mortgage, he was ignorant of a material fact necessary to a ratification. He could not be held, as a matter of law, to have ratified or confirmed the alleged agreement without knowledge of the material facts. There was no estoppel in pais, because no one entered into any contract or changed his position, or acted in any way on the assumption that Schmitt had entered into an agreement to pay the mortgage.” No testimony of any kind is offered tending to show that defendant in error, or any other person, changed his position, or that defendant in error was in any manner injured or in fact knew anything about the pretended assumption of said mortgages by plaintiff in error prior to the filing of this bill. It is stated in Ruling Case Law, vol. 19, sec. 147, p. 377: “A mortgagee certainly cannot object to the release from liability of a grantee of the mortgaged premises who has assumed the mortgage, where the assumption was obtained through fraud, or the provision therefor was inserted in the deed by mistake,” citing: Drury v. Hayden, 111 U. S. 223 (28 L. Ed. 408); Keller v. Ashford, 133 U. S. 610 (33 L. Ed. 667). In the last case it is further held that the mortgagee has no greater right than the mortgagor has against the grantee, and therefore cannot object to the striking out, by the court of equity, or to the release, by the mortgagor, of such an agreement when inserted in the deed by mistake. It is the opinion of this court that the assumption clause in question was inserted in the deed without the knowledge or consent of plaintiff in error, and without any consideration' therefor accruing to plaintiff in error, and by a trick and device on the part of the grantors in circumvention of plaintiff in error’s rights, and was a fraud. It follows, on the authority of Leipold v. Epler, supra, that the assumption clause should not be enforced against plaintiff in error. It is equally apparent that plaintiff in error retained no part of the consideration for which said transfer was made from which a promise to pay said indebtedness could be implied.

Did plaintiff in error incur a liability by signing the agreement, exhibit 15! It seems to be an elementary proposition in this case that the rights of all parties in this matter became fixed by the contract of December 30, 1919. It was under seal. By the terms of the writing, plaintiff in error took upon himself an added burden to pay 5% per cent interest, whereas one of the mortgages was drawing only 5 per cent. The contract of December 30, 1919, did have the rate of interest on the two mortgages reversed. On the face of the paper plaintiff in error took upon himself the added burden of paying the second mortgage on or before September 1, 1921, if that clause was in the writing when plaintiff in error signed it. Assuming for the sake of argument that plaintiff in error signed the paper as written, defendant in error does not rely upon this agreement in the bill of complaint as a ground of assumption, nor does he, in his brief and argument, urge it as a ground of recovery. Plaintiff in error by the writing, obtained no consideration or advantage by the instrument, but did undertake added burdens.

It is shown by the record, and not disputed, that in September, 1919, before plaintiff in error had had any dealing with Mundy and Scott, that they had extended said second mortgage, absolutely, to December 11,1922, by a written contract which was never placed of record and of which plaintiff in error never had any knowledge. The making of exhibit 15, under this record, was a fraud and defendant in error, if he knew anything about it, knew it was a fraud and is ineffective to support any equity in behalf of defendant in error for two reasons: first, if it is claimed to be an original contract it is without any consideration and void; and if it is claimed to be a modification of the contract of December 30, 1919, under seal, it constitutes an added obligation upon plaintiff in error , (not a waiver), and, being without consideration, is void. In Heartt v. Sherman, 229 Ill. 585, Mr. Justice Dunn said: “It is elementary that an executory contract without consideration cannot be enforced in a court of either law or equity.” In Corbett v. Cronkhite, 239 Ill., at page 14, Mr. Justice Carter said: “Equity will never enforce an executory agreement, unless there was an actual valuable consideration, and, unlike the common law, it does not permit a seal to supply the place of a real consideration.”

In Thompson v. Dearborn, supra, and in all the cases bearing upon assumption of mortgages, the contract of assumption is based upon a consideration, the conveyance of land, the withholding of a part of the consideration for land or some other advantage, the same as any other contract; and plaintiff in error, for the signing of exhibit 15, received nothing and was promised nothing. It was a nudum pactum. “The law is well settled in this State that a sealed executory contract cannot be altered, changed or modified by parol agreement.” Lanum v. Harrington, 267 Ill. 63; Becker v. Becker, 250 Ill. 117; Starin v. Kraft, 174 Ill. 120. But provisions of the contract may be waived. Kissack v. Bourke, 224 Ill. 352; Zempel v. Hughes, 235 Ill. 432. But the waiver does not apply to an added burden or obligation placed upon either of the parties.

It was held in Lanum v. Harrington, supra: “If it be said that the assurance by appellee that appellants would not be required to pay if they were not able to do so, and that any amount remaining due at appellee’s death would be deducted from Mrs, Harrington’s share in his estate, amounted to an advancement or bound appellee to bequeath to Mrs. Harrington at least the amount of this indebtedness, then it constituted a change and modification in the terms of the agreement and contract of the parties as represented by the bond for deed, which was under seal. The law is well settled in this State that a sealed executory contract cannot be altered, changed or modified by parol agreement. (Hume Bros. v. Taylor & Moss, 63 Ill. 43; Alschuler v. Schiff, 164 Ill. 298; Starin v. Kraft, 174 Ill. 120.)” But one seal appeared upon the contract of December 30, 1919, opposite the name of plaintiff in error, the first signer, which renders the instrument a sealed instrument. (McLean v. Wilson, 3 Scam. 51.) The contract of December 30, 1919, had settled all of the rights and obligations of the parties to this suit, and exhibit 15 in no manner changed them, and whatever was the purpose of Mundy and Scott in obtaining the instrument, they and defendant in error knew, if he had any knowledge about the matter, that plaintiff in error was undertaking an obligation impossible to perform. That plaintiff in error was not informed that the second mortgage had been extended to December 11,1922, was a fraud upon plaintiff in error and in keeping with the incorporation of the assumption clause in the deed.

It has been held in a line of cases commencing with Thompson v. Dearborn, supra, and followed by Merriman v. Schmitt, supra; Ludlum v. Pinckard, 304 Ill. 449; Ludlum v. Pinckard, 221 Ill. App. 135, and other cases, that: “While the general rule is that if the grantee takes and claims title under a deed he takes it by the terms of the deed, yet in order that a grantee be held personally liable for the payment of an incumbrance against the property, it must be shown, in addition to having accepted title to the property, that he assented to the condition of the deed relating to the personal assumption of the debt. Unless it be shown that a grantee in a deed has some reason to suppose that the deed to him contained a personal contract on his part to pay a mortgage or other lien on the property transferred, and that he assented thereto, he cannot be held, as a matter of law, to have assumed such obligation.” (Ludlum v. Pinckard, 304 Ill., p. 452.)

Thompson v. Dearborn, supra, was a case where a decree was entered upon a default to a bill and the court held, under the language of the bill, that it did not state a case against the defendant and the decree of the lower court was reversed. The rule was established as early as the case of Thompson v. Dearborn, supra, and in Merriman v. Schmitt, supra, it was held: “It is only by acceptance that he becomes bound, and if the acceptance of the terms of a deed may be presumed from its being found on the public records, it would clearly not be a conclusive presumption, otherwise a personal obligation might be imposed upon any party without his knowledge or consent, by making a conveyance and putting it upon record.”

In Ludlum v. Pinchará, supra, the court below held the defendant liable for the indebtedness. The Appellate Court of the First District reversed the lower court on the ground that the testimony did not show that the defendant intended to assume the payment of the mortgage, although there was an assumption clause in the deed. (Ludlum v. Pinchard, supra.) The case was appealed to the Supreme Court and based upon the testimony that the defendant had paid $1,000 upon the principal of the indebtedness, the judgment of the Appellate Court was reversed and the decree of the lower court affirmed.

In the case at bar no proofs were offered tending to show that plaintiff in error ever saw or knew anything about the assumption clause until March, 1922, and all of the proofs in the record contradict the theory that there ever was any contract or intention on plaintiff in error’s part or the makers of the contract of December 30, 1919, that plaintiff in error should assume or pay said mortgage indebtedness. Plaintiff in error has contended for and presented many well-considered authorities from other States to establish the rule in those jurisdictions that plaintiff in error should have the right to plead any defenses against defendant in error that he might plead against Mundy and Scott.

We have not found it necessary to go outside of the authorities of this State to form an opinion as to the merits of this case and, therefore, have given no consideration to the cases cited or to the contentions made.

Believing, from a careful review of the record, that the decree of the circuit court of Tazewell county is in error as to the personal liability of and deficiency decree against the plaintiff in error, D. D. Donahue, that part of the decree of the circuit court of Tazewell county finding the plaintiff in error, D. D. Donahue, personally liable for said mortgage indebtedness and entering a deficiency judgment against said plaintiff in error, Donahue, is reversed and said decree in all other respects is affirmed.

Reversed in part and affirmed in part.

Hr. Justice Niehaus took no part in the consideration of this case.


author: Mr. Justice Partlow

text:
    Lizzie A. Wood, Appellant, v. Joy Maxwell, Appellee.
    Gen. No. 7,499.
    1. Judgments — bar to further suit upon same cause. A judgment rendered by a court of competent jurisdiction on the merits is a bar to any further suit between the same parties or their privies upon the same cause of action, in the same or any other court, so long as it remains unreversed and not vacated or set aside.
    2. Judgments — questions determined res judicata in subsequent suit. Where there is an identity of parties and subject matter in two suits, questions which were in issue and judicially passed upon and determined in the first suit are conclusively settled by the judgment and cannot be again litigated in the second suit.
    3. Judgments — questions which could have been presented conclusively settled. All questions relating to the same subject matter which were open to consideration and could have been presented in a prior suit are conclusively settled whether they were presented or not.
    4. Judgments — no res adjudicata on dismissal. Where case was dismissed for want of prosecution on nonappearance of plaintiff, and judgment was rendered against plaintiff for costs, there was no hearing upon the merits and plaintiff could maintain a second suit on the same cause of action.
    Appeal by plaintiff from the City Court of Kewanee; the Hon. H. Steeling Pomeboy, Judge, presiding. Heard in this court at the April term, 1925.
    Reversed and remanded.
    Opinion filed November 25, 1925.

      James N. Cummings, for appellant.
    Sturtz & Ewan, for appellee.
   Mr. Justice Partlow

delivered the opinion of the court.

At the April term, 1914, of the circuit court of Bureau county, appellant, Lizzie A. Wood, began suit against appellee, Joy Maxwell, to recover damages for personal injuries sustained by appellant in a collision between a buggy in which appellant was riding and an automobile of appellee. Issues were joined and at the January term, 1916, the case was set for trial. At the time for the trial appellant failed to appear, the case was dismissed for want of prosecution, a judgment was entered against appellant in favor of appellee for costs, and an execution was awarded therefor. Afterwards, the present suit was begun in the city court of Kewanee by appellant against appellee upon the same cause of action as the prior case. To the declaration appellee filed the general issue and two special pleas, the first of which set up all of the facts with reference to the prior suit, including the declaration, the plea of the general issue, the failure of appellant to appear at the time set for trial, the judgment dismissing the case with costs against appellant, and it was alleged that the judgment had never been vacated, set aside or appealed from, and that by reason of that judgment appellant was estopped and barred from maintaining her cause of action. Appellant demurred to the first special plea, the demurrer was overruled, she elected to stand by her demurrer and a judgment was entered against her for costs. To review this judgment an appeal has been prosecuted to this court.

The only question raised is whether the facts set up in the first special plea were a bar to this cause of action. A judgment rendered by a court of competent jurisdiction, on the merits, is a bar to any further suit between the same parties, or their privies, upon the same cause of action, in the same or any other court, so long as it remains unreversed, and not vacated, or set aside. Collins v. Metropolitan Life Ins. Co., 232 Ill. 37; City of Chicago v. Partridge, 248 Ill. 442; Chicago Title & Trust Co. v. National Storage Co., 260 Ill. 485; Williams v. Williams, 265 Ill. 64; People v. Russel, 283 Ill. 520. Where there is an identity of parties and subject matter in the two suits the rule is that the questions which were in issue and judicially passed upon and determined in the first suit are conclusively settled by the judgment and cannot be again litigated in another action between the same parties. Noyes v. Kern, 94 Ill. 521; Hanna v. Read, 102 Ill. 596; Wright v. Griffey, 147 Ill. 496; Louisville, N. A. & C. Ry. Co. v. Carson, 169 Ill. 247; People v. Hill, 182 Ill. 425. All questions relating to the same subject matter which were open to consideration and could have been presented are also conclusively settled whether they were presented or not. Lush v. City of Chicago, 211 Ill. 183; Marie M. E. Church v. Trinity M. E. Church, 253 Ill. 21.

It appears, however, from the facts set up in this first special plea that the hearing upon the first case was not upon the merits and that there was no opportunity for an investigation and determination of the merits of the case. In fact there was no hearing at all and there was no judicial determination of any fact in the case. When the case was called for trial appellant failed to appear, the suit was dismissed for want of prosecution, and judgment was rendered against appellant for costs. This was not a hearing upon the merits, and the effect of the judgment was the same as if appellant had voluntarily gone into court and dismissed her suit at her costs. The facts set up in the first special plea did not constitute a bar to the second suit,, the plea did not set up a defense, the court was in error in overruling the demurrer to the plea, and for that reason the judgment will be reversed and the cause remanded with directions to sustain the demurrer to the first special plea.

Reversed and remanded.