text:
    Jessie D. Merwin et al., Appellees, v. Helen D. Stevenson et al., Appellants.
    Gen. No. 8,044.
    1. Wills — construing ~by testator’s intention. The intention of the testator which governs the construction of his will is that intention which he has expressed by the language he has used in the will, viewing the whole will and every part, and not some intention he may have had in his mind.

      2. Wills — rejection of meaningless construction. That construction of a will should be adopted which gives effect to all the provisions therein rather than a construction which renders a portion of the will meaningless.
    3. Wills — rejection of repugnant clauses. One clause of a will cannot be rejected as repugnant to another except as a last resort and will not be so rejected if the one clause is made void by the construction necessary to make it repugnant to the other.
    4. Wills — adopting construction that vests title. In case of doubt, that construction of a will should be adopted which leads to a vesting of the estate as being favored by law.
    5. Wills — construction of bequest to “either one’’ of two legatees. A provision of a will that “in case of the death of either one of my said grandsons leaving no widow, child . . .” the share of such grandson should go one-half to his brother and one-half to other heirs, was construed to refer to the death of the first grandson dying, and as he left a widow surviving, neither the other heirs nor the brother, who died a bachelor, were held to take anything under that provision.
    6. Wills — construction of two provisions of one clause as not repugnant. A provision of a will that in case a grandson died without leaving widow or child, one-half of his share should go to certain other of the testator’s grandchildren cannot be construed as independent of and repugnant to another provision of the clause that the other one,-half should go to such grandson’s brother, and the fact such brother had predeceased him and left a surviving widow made ineffective that provision, and the whole clause.
    Appeal by defendants from the Circuit Court of McLean county; the Hon. Stevens R. Baker, Judge, presiding.
    Heard in this court at the October term, 1926.
    Reversed and remanded with directions.
    Opinion filed October 31, 1927.
    Oglevee & Franklin and Rosenthal, Hamill, & Wormser, for appellants; Everett Oglevee, B. A. Franklin, Lessing Rosenthal and Willard L. King, of counsel.
    John F. Wight and Morrissey & Morrissey, for appellees; John F. Wight, John O. Morrissey and John J. Morrissey, of counsel.
   Mr. Justice Eldredge

delivered the opinion of the court.

This is an appeal from the decree of the circuit court of McLean county, rendered on a bill to construe the will of William O. Davis, who died May 22, 1911. Originally all the parties to this suit joined as complainants in the bill, but subsequently, by leave of court, the appellants, Helen D. Stevenson, Adlai E. Stevenson and Elizabeth D. Stevenson, withdrew as complainants and became parties defendant and filed an answer to the bill. The will was executed by William O. Davis on January 11,1908, and a codicil thereto was executed by him November 28, 1910.

At the time of the execution of the will and at the time of the death of the testator his family consisted of a son, Hibbard O. Davis, and two daughters, Helen Davis Stevenson and Jessie Davis Merwin. Hibbard O. Davis had two children who were both in being at the time the will was made, viz.: Louis E. Davis (whose first name in the will is spelled “Lewis”) and William O. Davis. Helen Davis Stevenson, at the time of the execution of the will, had two children both of whom are still living, viz.: Adlai E. Stevenson and Elizabeth D. Stevenson, who, with their mother, said Helen Davis Stevenson, are the appellants on this appeal. Jessie Davis Merwin had three children at the time of the execution of the will, all of whom are still living, viz.: Jesse Davis Merwin, Hester E. Merwin and Loring C. Merwin, who, with their mother, said Jessie Davis Merwin, are appellees here.

The questions presented for considération on this appeal involve only that portion of the third section of said will which is as follows:

“THIRD: I give, bequeath and devise to my son, Hibbard O. Davis, three hundred and ninety-five (395) shares of capital stock of The Pantagraph, a corporation organized under the laws of the State of Illinois, he to have the control, use, profits, dividends and income therefrom for and during his natural life and upon the death of my son, Hibbard O. Davis, said three hundred and ninety-five (395) shares of stock to go in equal parts to my grandsons William O. Davis and Lewis E. Davis, provided, however, that my said grandsons, William O. Davis, and Lewis E. Davis, shall only come into possession and control during their lifetime of one-half (½) of the shares coming to them respectively under this provision of my Will, and neither of them shall receive into his possession and control said one-half (½) of said shares of stock until January 1st, 1930, and the remaining one-half (½) of shares coming to each of my said grandsons respectively under the provisions of this Will shall never come into their possession and control hut the same shall be placed in the hands of C. C. Marquis, James Oscar Willson and Louis O. Eddy as trustees who shall manage and control the same and pay over to said grandsons the net income due each respectively from said shares of stock. It is hereby declared to be my intention that said grandsons shall each respectively on the 1st day of January 1930 come into the possession and control in equal parts of one-half (½) of the shares mentioned in this item of my Will. And I further declare it to be my intention that the remaining one-half (½) of said Capital Stock coming in equal parts to my said grandsons, William O. Davis and Lewis E. Davis, under the provisions of this Will, shall never come into their possession but shall be placed in the hands of the trustees above named for the purpose hereinabove stated. Provided, however, that my grandsons, William O. Davis and Lewis E. Davis, shall not come into the possession or control of any of said shares of stock nor shall said trustees take possession or control of any part or portion thereof during the lifetime of my son, Hibbard O. Davis, for it is my intention as above declared that my son, Hibbard O. Davis, shall have the control, use, profits, dividends and income of all said shares of stock during his lifetime as provided by the foregoing provisions of this Will. In case of the death of either one of my said grandsons, leaving no widow, child or children surviving him, one-half (½) of the said shares of stock going to such deceased grandson, under the provisions of this Will, shall go absolutely to his brother, the surviving grandson and the remaining one-half (½) of said shares going, under the provisions of this Will, to such deceased grandson shall, provided he leaves no widow, child or children surviving him, go to my other grandchildren, Elizabeth D. Stevenson, and Aldai E. Stevenson, children of my daughter, Helen D. Stevenson, and to. Jesse Davis Merwin, Hester E. Merwin and Loring C. Merwin, children of my daughter, Jessie D. Merwin, share and share alike.
“In case both my said grandsons, William O. Davis and Lewis E. Davis, shall be deceased before January 1, 1930 leaving no child, children nor widow or widows surviving them, I will and direct that on the death of my son, Hibbard O. Davis, one-half of said three hundred and ninety-five (395) shares of stock willed to my son, Hibbard O. Davis, for life shall become intestate estate and be distributed to my heirs according to the statutes of descent of the State of Illinois and the other one-half (½) of said three hundred and ninety-five (395) shares of stock shall go to my other grandchildren as above provided.”

The testator’s grandson, Louis E. Davis, mentioned in the above section of the will, died intestate on May 10, 1918, leaving him surviving his widow, Styleta K. Davis, who has since remarried and is now Styleta K. Hoffman. His grandson, William O. Davis, (styled by counsel as William O. Davis II,) died May 22, 1919, intestate, a bachelor and without any descendant. Hibbard O. Davis, the testator’s son and the father of Louis and William, above mentioned, died July 16, 1925. Prior to the death of Hibbard O. Davis, his sisters Helen D. Stevenson and Jessie D. Merwin purchased in .equal shares, whatever interest had passed to Styleta K. Hoffman in the 395 shares of stock disposed of by the third section of the will, and Hibbard O. Davis had assigned to the Peoples Bank of Bloomington, as trustee, the original certificate for the 395 shares of stock, with the provision that upon his death all his interest in said stock should pass to his sisters, Helen D. Stevenson and Jessie D. Merwin, for life, share and share alike, and upon the death of each of them their respective children should receive their mother’s share of said stock.

The question for determination here is what estate did William O. Davis II take under the will mentioned in the original 395 shares of stock bequeathed to Hibbard O. Davis, his father, for life with remainder to him and his brother Louis.

The construction contended for by appellees and upheld by the decree is that a vested remainder in the stock in equal shares was bequeathed to each of said grandsons, Louis E. Davis and William O. Davis II and that upon the death of either one of said grandsons without leaving a widow, child or children, the executory bequest over consisted of two severable, distinct gifts, viz.: one-half of the stock to the surviving brother of such grandson so dying, and the other half to the testator’s five grandchildren, the children of his two daughters, which bequests were separate and distinct, each complete in itself and not dependent upon the taking effect of the bequest of the other half; and that upon the death of William O. Davis II without leaving any widow or child, the said executory bequest in the will took effect and that the testator’s grandchildren-above mentioned, took one-half of said shares of stock and as to the other half of said stock the bequest failed because when William O. Davis II died he left no surviving brother and this half of the stock descended to his father, Hibbard O. Davis, who was his only heir.

Appellants contend that the entire interest of said William O. Davis II passed upon his death, unaffected and undiminished, by any divestiture, to his father, Hibbard O. Davis, as his sole next of kin and passed, by virtue of the assignment of Hibbard O. Davis, to the Peoples Bank of Bloomington, as trustee, for Jessie D. Merwin and Helen D. Stevenson during their respective lives, and, upon the death of each, to their respective children in equal shares.

It is conceded by all parties, and so held by the chancellor, that under the will testator’s grandsons, Louis E. Davis and William O. Davis II took vested interests in the 395 shares of Pantagraph stock subject to the life estate of their father, Hibbard O. Davis and that these vested interests were subject to divestiture by the conditions of defeasance mentioned in said section, and the real point in controversy is the construction to be placed upon these clauses. Counsel in their briefs and arguments for convenience have separated these from the rest of section 3 and have designated them clauses “A” and “B” and for a like reason we do the same here, to-wit:

CLAUSE A
“In case of the death of either one of my said grandsons, leaving no widow, child or children surviving him, one-half (½) of the said shares of stock going to such deceased grandson, under the provisions of this Will, shall go absolutely to his brother, the surviving grandson and the remaining one-half (½) of said shares going, under the provisions of this Will, to such deceased grandson shall, provided he leaves no widow, child or children surviving him, go to my other grandchildren, Elizabeth D. Stevenson and Aldai E. Stevenson, children of my daughter, Helen D. Stevenson, and to Jesse Davis Merwin, Hester E. Merwin and Loring C. Merwin, children of my daughter, Jessie D. Merwin, share and share alike.”
CLAUSE B
“In case both of my said grandsons, William O. Davis and Lewis E. Davis, shall be deceased before January 1, 1930, leaving no child, children nor widow or widows surviving them, I mil and direct that on the death of my son, Hibbard O. Davis, one-half of said three hundred and ninety-five (395) shares of stock willed to my son, Hibbard O. Davis, for life shall become intestate estate and be distributed to my heirs according to the statutes of descent of the State of Illinois and the other one-half (½) of said three hundred and ninety-five (395) shares of stock shall go to my other grandchildren as above provided.”

While cases on the construction of wills are valuable chiefly in their applications of the law to the particular provisions of the wills under consideration, yet there are certain elementary rules which must guide the courts in the construction of all wills. The intention of the testator, if not inconsistent with the established rules of law or public policy, must govern. Meins v. Meins, 288 Ill. 463; Walker v. Walker, 283 Ill. 11; Perry v. Bowman, 151 Ill. 25. The intention of the testator is that intention which the testator has himself expressed by the language used in the will and not an intention he may have had in his mind, but did not express. Pool v. Pool, 300 Ill. 557; Hollenbaugh v. Smith, 296 Ill. 558; Moeller v. Moeller, 281 Ill. 397; Smith v. Chester, 272 Ill. 428. The whole will in all its parts and every clause therein, must be considered in ascertaining such intent. Cole v. Cole, 292 Ill. 154; Noth v. Noth, 292 Ill. 536. When one construction renders a portion of the will meaningless and another gives the effect to all the provisions therein, it is the duty of the court to adopt the latter construction. Rasmusson v. Unknown wife of William Hoge, 293 Ill. 101; Walker v. Walker, 283 Ill. 11; Defrees v. Brydon, 275 Ill. 530; Eyer v. Williamson, 256 Ill. 540. A clause in a will cannot be rejected as repugnant to another clause if the construction which must be placed upon the former clause to sustain the claim of repugnancy renders it void, and only as a last resort will a court hold conflicting provisions of a will irreconcilably repugnant. Mealy v. Eastlake, 152 Ill. 424. The law favors the vesting of estates and when there is any doubt, that construction will be adopted which leads to that result. Pearson v. Hanson, 230 Ill. 610.

William 0. Davis, the testator, in his lifetime was a man of education and high intelligence. He established a newspaper in the City of Bloomington in 1868. In 1907 he incorporated the business under the name of “The Pantagraph,” and afterwards this was changed to “The Daily Pantagraph.” The capital stock of the corporation consisted of eight hundred shares which in 1907 were worth $250 per share. When he died he was the owner of 789 shares. The newspaper had a large circulation and influence in that part of the state and was a prosperous going concern. He' was a man of wealth and prominence and his will presents a complete and comprehensive scheme for the distribution of his estate. It is apparently drawn with great care and particularity and undoubtedly with legal advice. We must look for the intention of the testator in the words of the will and cannot presume that he intended a disposition of his property other than as expressed therein by him. By the third section of the will the testator bequeathed 395 shares of the stock of The Pantagraph to his son, Hibbard O. Davis for life, with remainder over in equal parts to his grandsons, William O. Davis II and Louis E. Davis. Then follows two clauses of defeasance, the first (designated as clause “A”) provides for the disposition of the shares of stock in case of the death of either William 0. Davis II or Louis E. Davis, leaving no widow, child or children surviving him; and the second (designated herein as clause “B”) provides for the disposition of said shares in case of the death of both William O. Davis II and Louis E. Davis leaving no widow, child or children surviving them. Thus clause A pertains to the death of one of said grandsons leaving no widow, etc., while clause B pertains to the death of both grandsons leaving no widow, etc.

Clause A provides that in case of the death of either one of said grandsons leaving no widow, etc., surviving him, one half of said shares of stock going to such deceased grandson under the provisions of the will, shall go absolutely to his brother, the surviving grandson, and the remaining one-half of said shares shall go to other named grandchildren of the testator. The chancellor held in the court below that the words “and the remaining one-half (½) of said shares going, under the provisions of this Will, to such deceased grandson shall, provided he leaves no widow, child or children surviving him, go to my other grandchildren (naming them) etc.,” created a separate and distinct estate and that upon the death of William O. Davis II, who left no widow or child surviving him, the other grandchildren mentioned in this clause took said one-half of said shares absolutely. It will be remembered that Louis E. Davis died before William O. Davis II and left Styleta K. Davis, his wife, surviving him. Appellants contend that no such separate estate is created by the language of clause A, but that the words “in case of the death of either one of my said grandsons, leaving no widow, etc.,” refer to the first death of the grandsons and that the gift over to the other named grandchildren was dependent upon the first grandson who should die leaving no widow or child surviving him, and that Louis E. Davis having died first and having left a widow, Styleta K. Davis, the condition of defeasance failed and said other named grandchildren took nothing under said clause, and, of course, William O. Davis II took nothing as the surviving grandson for the same reason. Also, that by the death of Louis E. Davis, leaving a widow surviving him, the condition of defeasance attached to the original gift of shares to William 0. Davis II having failed and terminated, the vested remainder of William O. Davis II became absolute and upon his death all the shares originally bequeathed to him became intestate property and descended to his father, Hibbard O(. Davis, as his only heir.

In our opinion, the words “death of either one” can refer only to the grandson who should first die, otherwise there would be no surviving brother to take the one-half of the shares mentioned; and the first part of clause A would be meaningless and of.no avail. The, fact that Louis E. Davis died leaving a widow can have no influence in ascertaining the true meaning of the words used. Nor can we acquiesce in the contention that the gift over to the other grandchildren was a separate independent executory bequest, independent of the preceding words in the clause. This clause is all in one sentence and that part of it containing the bequest over to the other grandchildren is connected with the preceding part by the conjunction ‘1 and. ’ ’ If we should eliminate unnecessary words, clause A, in substance, would read as follows: “In case of the death of either one of my said grandsons leaving no widow, etc., one-half of said shares of stock going to such deceased grandson shall go absolutely to his brother surviving him and the remaining half of said shares shall go to my other grandchildren, etc.” It seems clear that the intention of the testator was, that in case one grandson predeceased the other, leaving no widow or child, then (1) one-half of the shares bequeathed to him under the will would go to the surviving brother and (2) the other half to the other grandchildren named. Any other construction would appear to be an unwarranted distortion of the meaning of the words used.

There is another reason, however, which strongly supports the conclusions above announced. Every word, sentence and part of a will is presumed to have some meaning, force and vitality and should be given effect, if possible. Clause A pertains and applies to but one subject matter, that of the death of either one of said grandsons leaving no widow or child. Clause B applies and pertains to but one subject matter, that of the death of both grandsons leaving no widow or child. If Louis E. Davis had died without leaving a widow or child, then under clause A one-half of the shares of stock going to him under the will would have gone to his surviving brother, William O. Davis II, absolutely, and the latter would have taken an absolute estate in said shares of stock; but clause B provides that in case of the death of both Louis E. Davis and William O. Davis II without leaving any widow or child surviving them, then an entirely different disposition of said stock is to be made. William O. Davis II died without leaving any widow or child and under the conditions cited clauses A and B would become absolutely repugnant to each other and meaningless. Under this supposititious case which is exactly the ease these clauses were designed to meet, if Louis E. Davis had died leaving no widow or child then William O. Davis II, under clause A, would have become the absolute owner of one-half of the shares of stock willed to his brother, but under clause B when William O. Davis II died leaving no widow or child, then the stock which he had already taken absolutely from his brother Louis, would be disposed of in other ways. The court will not presume that the testator intended in one clause of the will to give to a legatee the absolute ownership of the stock in question and then in another clause attempt to bequeath the same property to others, thus making these clauses repugnant to each other. “All the clauses and words of the will must be construed as intended to have some meaning and to have been used for some purpose and must be given effect in arriving at the intention. None can be arbitrarily rejected as meaningless or surplusage. ‘A construction which requires the rejection of an entire clause in an instrument is not to be admitted except from absolute necessity.’ Winter v. Dibble, 251 Ill. 200.” Hollenbaugh v. Smith supra. As stated above, the will is drawn with care and particularity. Many bequests are made therein and many contingencies provided for in apt words. It is not reasonable to presume that the testator could have had any intention to give these clauses a meaning which would make them repugnant to each other in case the very conditions should happen which they respectively provided for and were framed to meet. The construction we have placed upon them can be arrived at within the fair meaning and intendment of the words used by the testator, harmonizes the two clauses, avoids any conflict or repugnancy between them, and gives full effect to each. The law favors the vesting of estates and unless it clearly appears, that such was not the intention of the testator, or if it is doubtful, that construction will be resorted to.

The only conditions of defeasance or divestiture of the vested remainders bequeathed to Louis E. Davis and William O. Davis II of the stock in question contained in the will of the testator are found in these clauses A and B and these conditions never having been consummated, but defeated by the fact of Louis E. Davis dying and leaving a wife surviving him, the legacies to Louis E. Davis and William O. Davis II became indefeasible and the vested remainders became absolute, and when William O. Davis II died he was the absolute owner of the shares of stock bequeathed to him under the will, and these passed, under the laws of descent, to his father, Hibbard O. Davis, as his only surviving heir.

The decree of the circuit court will be reversed and the cause remanded with directions to enter a decree in accordance with the conclusions herein expressed.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Eldredge

license: Public Domain

text:
    Commercial Trust and Savings Bank of Springfield, Illinois, Complainant and Appellant, v. M. J. Murray et al., Defendants. Henry Henn, Cross-Complainant and Appellee.
    Gen. No. 8,045.
    1. Judgments — to what lien attaches. Upon the entry of a. judgment, it at once becomes a lien on all realty appearing of record, free from the claims of all other persons of which the judgment creditor had no notice either actual or constructive.
    2. Judgments — lien as affected by later recording of deed. Where a judgment creditor has no notice of an unrecorded deed, the judgment lien will not be affected by the subsequent recording of the deed.
    3. Suretyship — subrogation rights of surety paying principal’s debt. A surety who is compelled to pay his principal’s debt will in equity be entitled to be subrogated to all the creditor’s rights to any fund, lien, or equity which the creditor may have against, any other person or property on account of the debt.
    4. Judgments — lien as affected by prior recording of deed. The entry of a judgment after the recording of a deed by the judgment debtor creates no lien on the land until the deed is removed.
    5. Creditors’ suits — value of removing deed to holder of prior judgment. A creditor who has obtained a judgment and entry thereof before the debtor recorded a deed of property subject to the. judgment, is not affected by the fact that another creditor removes the deed and releases the property for creditor’s claims.
    6. Creditors ’ suits- — when prior, lien not disturbed by discovery of assets. The rule that a judgment creditor who files a bill whereby equitable assets of the debtor are made available to the creditors has prior equity to have them applied to pay his judgment, does not. apply against a prior creditor whose lien had already been secured on the property.
    Appeal by plaintiff from the Circuit Court of Cass county; the Hon. Guy R. Williams, Judge, presiding.
    Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed October 31, 1927.
    Thomas D. Masters and Walter T. Day, for appellant.
    A. A. Leeper, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

On this appeal there is no controversy as to any of the facts in the case. The transactions between the different parties to this litigation, set out in their chronological order, are substantially as follows: On the hearing of the chancery case of M. J. Murray v. Farmers State Bank of Ashland, Illinois, in the circuit court of Cass county, the bank recovered a money judgment against said Murray for the sum of $6,596.26. Murray prayed an appeal from the decree for said money judgment to this court, where it was affirmed. Murray v. Farmers State Bank of Ashland, 235 Ill. App. 631. Henry Henn, one of the appellees here, signed the appeal bond of Murray, as surety. Upon the affirmance of said decree an execution was issued, placed in the hands of the sheriff and returned unsatisfied. Henn, as surety on said appeal bond, was compelled to pay the judgment against Murray, and took an assignment thereof to himself. At the time this judgment was rendered the record title to the real estate involved herein, was in said Murray, and, of course, the judgment immediately became a lien thereon. On August 14, 1924, a warranty deed from Murray to his sister, Alice T. Murray, purporting to bear the date of September 22, 1920, and conveying said lands, was filed for record. On August 9, 1924, appellant, Commercial Trust and Savings Bank of Springfield, Illinois, brought an action against Murray, in assumpsit, to recover judgment for the principal and interest due on certain notes held by it. On August 20, 1924, appellant caused a writ of attachment in aid to issue, by virtue of which a levy was made upon the said lands hereinbefore mentioned. On October 6, 1924, appellant recovered a judgment against Murray for $7,633.43. This judgment, by reason of the sale of certain collateral held by appellant, was subsequently reduced to $6,153.43. A special execution was issued and a sale had of said premises and they were bid in by appellant for the sum of $4,000.00, and the special execution was returned satisfied pro tanto. On December 1, 1924, Henn, appellee, as assignee of the judgment of the Farmers State Bank of Ashland, caused an execution to be issued on said judgment and levied upon the same lands, which resulted in a sale thereof by the sheriff, at which Henn bid the sum of $4,000.00, and received a certificate of purchase for the same pro tanto. On January 21,1925, appellant filed its creditor’s bill in the Circuit Court, alleging that the said warranty deed from Murray to his sister, Alice, was without consideration, was in the. nature of a secret trust, fraudulent and void, and that the same was executed with intent to hinder, delay and defraud the creditors of said Murray. The bill further avers that the defendants, Joseph D. Turner, Mary J. Turner and Ella Massey, have a prior and superior lien and interest in said premises, as mortgagees ; that said mortgagees be decreed to answer and disclose to the court whether any part of the mortgage indebtedness, evidenced by said mortgage, has been paid, and what amount, if any, of the said mortgage indebtedness, remains unpaid and unsatisfied; that the defendant, Farmers State Bank of Ash-land, claims to have some right, title or interest in and to said premises as a judgment creditor of the defendant, M. J. Murray, but that whatever right, title or interest sai dbank has is subordinate to the right, title and interest of appellant, and that the rights of the Farmers State Bank may be ascertained and determined in this proceeding.

There is no contention in regard to the rights of the prior mortgagees mentioned, and their interests are not involved on this appeal. Appellee Henn, having been permitted to intervene, by leave of court, answered the bill, setting up, substantially, the facts in regard to the sale of the lands by virtue of the judgment obtained by the State Bank of Ashland, and his purchase of the same at said sale. Henn also filed a cross bill claiming that his right to and interest in the lands described therein and in the original bill in this cause, are based on the judgment and sale thereunder, which are particularly set forth herein, and that such right and interest are prior and superior to any right or interest in said lands claimed or held by the Commercial Trust and Savings Bank, appellant, and prays that decree be entered declaring the same so to be. A cross bill was also filed by the mortgagees for the foreclosure of their mortgage. Answers to the original bill and to' the cross bills and replications thereto, completed the issues in this cause which was referred to a special master .in chancery to take and report proofs and findings of law and fact. The only question involved on this appeal is in regard to the priority of the liens as between appellant, Commercial Trust and Savings Bank of Springfield, and appellee, Henry Henn, assignee of the judgment of the State Bank of Ashland, as affecting their respective rights to redemption from the foreclosure sale.

The master found that the warranty deed executed by M. J. Murray to his sister, Alice T. Murray, was fraudulent as against his creditors and that by reason of the filing of this bill by appellant to set aside said conveyance, an equitable lien upon the lands in favor of appellant, was created prior and superior to the lien or interest of the cross complainant, Henry Henn. The chancellor sustained the exceptions of appellee Henn to the master’s report, and entered a decree finding that the cross complainant, appellee Henn, was subrogated to all the right, title and interest of the State Bank of Ashland, and that the lien of the latter bank was prior and superior to the lien of the appellant.

The position taken by appellant in support of its claim for priority, is, that by reason of its diligence in filing the bill in this case, additional assets were discovered and made available for the creditors of Murray, and therefore its judgment lien should have priority. At the time judgment was entered against Murray by the Farmers State Bank of Ashland, the record title of the lands in question was in Murray. Upon the entry of this judgment a lien was immediately created upon the property. There is no proof and no claim made that the Farmers State Bank of Ashland had any notice, either actual. or constructive, of the unrecorded deed from Murray to his sister. A judgment becomes a lien on all real property appearing of record free from the claims of all other persons of which the judgment creditor had no notice, either actual or constructive, and when there is no such notice of an unrecorded deed, the lien will not be affected by the subsequent recording thereof. Thorpe v. Helmer, 275 Ill. 86.

Appellee Henn was surety upon the appeal bond of Murray and as such surety was compelled to and did pay the debt to the Farmers State Bank of Ashland. A surety who is compelled to pay the debt of the principal, will, in equity, be entitled to be subrogated to all the rights and equities of the creditor as to any fund, lien or equity, which the creditor may have against any other person or property on account of the debt. The equities of the surety extend to all the rights of the creditor respecting the debt which the surety pays. Lochenmeyer v. Fogarty, 112 Ill. 572; Bartel v. Zimmerman, 293 Ill. 154.

The deed from Murray to his sister was recorded August 16, 1924. The writ of attachment caused to be issued by appellant and levied upon the premises was not issued until August 20, 1924, and appellant did not procure its judgment against Murray until October 6, 1924. The judgment of the Farmers State Bank of Ashland against Murray was rendered May 27, 1923, more than a year prior to the levy of the writ of attachment or the judgment of appellant. The judgment of appellant not having been rendered until after the deed was recorded, did not create any lien upon the lands in question and could not do so until after the deed had been removed. Union Natl. Bank v. Lane, 177 Ill. 171. The recording of the deed had no effect whatever upon the lien of the judgment of the State Bank of Ashland, as that judgment was rendered before the deed was recorded. Appellee Henn, as assignee of the latter judgment, could derive no benefit whatever by the setting aside of the deed by virtue of the creditor’s bill filed by appellant, as his lien was established before said deed was recorded, but, on the contrary, appellant could procure no lien by virtue of its judgment until said deed was set aside. Union Natl. Bank v. Lane, supra. The rule that a creditor who reduces his claim to judgment, sues out an execution and files a bill whereby equitable assets or property of the debtor, not subject to execution, are discovered and made available to the creditors of said debtor, will thereby acquire a priority or right in equity to have the same first applied in payment of his judgment has no application against a prior creditor whose lien had already been secured.

The decree of the chancellor was clearly right and is affirmed.

Affirmed.


text:
    George J. Smith, Appellant, v. T. L. Rothwell, Appellee.
    Gen. No. 8,076.
    Appeal and error — affirmance of judgment not against weight of evidence. Where the abstract of the transcript does not show any objections to the admission of evidence and sets out none of the instructions, and the judgment rests on a verdict that is not contrary to the manifest weight of the evidence, in a case involving purely questions of fact, it will be affirmed on appeal.
    Appeal by plaintiff from the Circuit Court of Logan county; the Hon. Frank Lindley, Judge, presiding.
    Heard in this court at the April term, 1927.
    Affirmed.
    Opinion filed October 31, 1927.
    George C. Coffey, for appellant.
    B. A. Tyler and Harold F. Throop, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

This case originated before a justice of the peace and on appeal to the circuit court of Logan county, the trial resulted in a verdict in favor of appellee. Apparently this suit was brought to recover for services performed by appellant for appellee. The defenses appear to be a denial of a large portion of the services claimed, payment in full for those services which were performed, and the bar of statute of limitations to claims for other services. The abstract of the transcript of the record does not show that any objections were made to the admission of any of the evidence and sets out none of the instructions. So far as this court can ascertain, the questions involved on the trial were purely questions of fact for the jury to determine, and, as the verdict was not contrary to the manifest weight of the evidence, the judgment is affirmed.

Affirmed.


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    Liberty Loan Association of Staunton, Illinois, Appellee, v. Alphonso Bosen et al. Walter O. Entsminger, Appellant.
    Gen. No. 8,079.
    1. Foreclosure of mortgages — purchase by mortgagee on foreclosure as extinguishing debt. The original debt owing a mortgagee is extinguished by his bidding in the mortgaged property at foreclosure sale for the full amount then due and receiving all the money due.
    2. Foreclosure op mortgages — right to possession and rent during redemption period. The owner of the equity of redemption is entitled to the possession of the premises and to receive the rents and profits until the time of redemption has expired.
    3. Foreclosure of mortgages — necessity of receiver during period of redemption. In case mortgaged premises have been sold for enough at foreclosure sale to satisfy the decree, interest and costs, there is no necessity for a receiver during the redemption period.
    4. Foreclosure op mortgages — presumption that bid on foreclosure sale equals premises’ value. The presumption is that the amount a mortgagee bids at foreclosure sale for the mortgaged premises, covering the decree, interest and costs, equals the value of the premises.
    Appeal by defendant from the City Court of Litchfield; the Hon. Thomas M. Jett, Judge, presiding.
    Heard in this court at the April term, 1927.
    Reversed and remanded with directions.
    Opinion filed October 31, 1927.
    Paul McWilliams, for appellant.
    Omer Poos and E. D. George, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

On April 22, 1926, appellee filed its bill to foreclose a certain mortgage executed by Alphonso Bosen and Eva Bosen, who were nonresidents and were served by publication. The amount of the debt secured by the mortgage was $4367.26, which, together, with the solicitors’ fees and the amounts paid by appellee for taxes and insurance, made a total indebtedness of $4839.74. The premises were sold by the master in chancery and appellee bid the full amount of the debt above mentioned therefor, and a certificate of purchase was issued to him. Subsequently, on December 7,1926, appellee filed a written motion for the appointment of a receiver in which it is alleged that the mortgage debtors had not paid the taxes for the year 1925 and have not kept the property insured pursuant to the terms of the mortgage. Walter C. Entsminger, appellant, was originally made a party to the foreclosure suit, he being, at that time, a tenant in possession residing on said premises. On May 8, 1926, the Bosens, by deed, conveyed all their right, title and interest to him. The premises were bid in by appellee for the sum. of $4839.74, and it is stipulated they are reasonably worth between $4500.00 and $5000.00. The chancellor entered a decree appointing a receiver to collect the rents and profits during the equity of redemption, and to reverse this order the appellant prosecutes this appeal.

If we understand the evidence correctly, the sum of $4839.74, bid by appellee at the sale for the premises, included not only the principal debt but also the moneys paid out for the taxes for the year 1925, the insurance in question and the solicitors ’ fees. In any event appellee having bid the full amount of all indebtedness due it at the time of the sale and having received from the master in chancery all the money due, the original' indebtedness became paid and extinguished. Burnham v. Roth, 244 Ill. 344; Elgin City Banking Co. v. Hancock, 183 Ill. App. 23. Appellant as owner of the equity of redemption is entitled to the possession of the premises and to receive the rents, issues and profits thereof until the time of redemption has expired. Where the premises have been sold for enough to satisfy the foreclosure decree, interests and costs, there is no necessity for a receiver. Ruprecht v. Muhlke, 225 Ill. 188; Davis v. Dale, 150 Ill. 239; Haigh v. Carroll, 209 Ill. 576.

It is suggested by counsel for appellee that as the Bosens, the original mortgagors, were nonresidents and had to be served by publication and consequently no deficiency decree against them could have been entered, it was compelled to bid the full amount of the indebtedness, interest and costs, in order to protect itself against a redemption of the property for less than its debt and therefore the usual rule should not be applied. We cannot agree with this contention because appellee had its option to hid at the sale what the mortgaged property was reasonably worth and pursue its remedy at law for the unpaid balance of the debt in the domicile of the debtors, or it could bid the full amount of the indebtedness on the mortgage sale and thereby extinguish the debt. In this instance it chose to take the latter course and it will be presumed that the valúe of the premises was equal to the amount of the bid.

The decree of the city court of Litchfield is reversed and the cause remanded with directions to deny the motion for the receiver.

Reversed and remanded.


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    Helen Ayresman, Plaintiff in Error, v. Modern Woodmen of America, Defendant in Error.
    Gen. No. 8,090.
    Fraternal beneficiary associations — acceptance of premiums as not waiver of exemption of liability for death from hazardous employment. A provision of a by-law of a fraternal society which exempts the society from liability on account of the death of the assured directly traceable to employment in a prohibited hazardous occupation does not make the society’s acceptance of premiums with knowledge of the assured’s engaging in such occupation a waiver of its exemption from liability on death from the prohibited occupation, although the society may be liable for death from a nonhazardous occupation.
    Error by plaintiff to the Circuit Court of DeWitt county; the Hon. George A. Sentel, Judge, presiding.
    Heard in this court at the April term, 1927.
    Affirmed.
    Opinion filed October 31, 1927.

      O. R. Middleton, F. K. Lemon and Herrick & Herrick, for plaintiff in error.
    Truman Plantz and George H. Davis, for defendant in error.
   Mr. Justice Eldredge

delivered the opinion of the court.

Plaintiff in error brought her action against defend ant in error on a benefit certificate issued by the latter to her husband, Loren V. Ayresman, on April 21, 1913. The certificate was in the sum of $3,000.00, and payable to plaintiff in error as beneficiary. Loren V. Ayresman on October 6, 1917, was killed in a railroad accident while he was acting as a railroad locomotive fireman.

The declaration avers the performance of all the terms, provisions and conditions of the certificate on the part of the insured and charges that the defendant is liable to the plaintiff in the sum of $3,000.00, with interest at the rate of five per cent from the date that notice and proofs of death were furnished it.

The questions in controversy on this appeal involve a special plea and two replications thereto. The trial court sustained demurrers to the replications of plaintiff and, the latter abiding by her replications, judgment was entered in favor of defendant. The special plea avers, in substance, that the contract entered into consists of the application, the by-laws and the benefit certificate; that the insured stated in his application that his occupation was that of farming; that he was not then engaged or employed as a railroad locomotive fireman, and that he would not thereafter, while a member of said society, engage in any of the prohibited occupations except at the same time recognizing the full force and effect of the society’s by-laws limiting its liability upon the certificate of any member engaged in such occupations; that section 21 of the bylaws provided as follows: “Section 21.' Effect upon Benefit Certificate by Reason of Holder Thereof Being Engaged in, or Hereafter Engaging in, Hazardous Occupation — Engaging in, or entering on, or continuing in any of the occupations or employments enumerated in Section 19 of these by-laws, by any beneficial member of this society, heretofore, or hereafter admitted to such membership, shall totally exempt said society from any and all liability to such member, his beneficiary or beneficiaries, on account of the death of such member directly traceable to employment in such hazardous or prohibited occupation, except as provided in Section 58. This section shall not apply to a ■beneficial member who, under former by-laws holds a hazardous occupation certificate and continues to pay the hazardous rate therein prescribed, nor to a beneficial member- whose hazardous or prohibited occupation, at the time' he last- engaged therein, was not classed as hazardous, nor as prohibited by the by-laws of this society. A person shall be held to be engaged in any of the hazardous or prohibited occupations in this chapter mentioned, whenever he, with or without compensation regularly, occasionally, or. during any part of the year, performs any work or duties necessary or incident to said hazardous or prohibited occupation;” that subsequent to the issuance of said certificate the assured engaged in the occupation of railroad locomotive fireman and that his death was directly traceable to. his employment in said occupation.

Each of the two replications to which demurrers -were sustained, in substance avers that plaintiff is not precluded from maintaining her action because defendant had full knowledge that said insured was engaged in the business of a railroad locomotive fireman and with such knowledge collected and received a large sum of money, to-wit, $500.00, as monthly assessments and membership fees from the said insured and still retains said sum. ¡

Plaintiff in error contends that these replications present facts which constitute waivers of the provisions and conditions embodied in the application, bylaws and certificate, as set out in the plea. It is stated by counsel for plaintiff in error in their argument, that, “the only issue in this case is whether or not, under the law of this state, it is possible for the defendant in error to defeat the legal defense of waiver or of estoppel by adopting by-laws purporting to accomplish that result.” We think counsel has misapprehended or misconceived the controlling facts presented by the plea. Defendant in error had a right by its by-laws, to limit the persons it would insure to those performing certain occupations and to exclude from its membership persons who, in its judgment, were employed in hazardous occupations. Among the persons excluded from its membership employed in hazardous occupations were those employed as railroad locomotive firemen. At the time this certificate of insurance was issued the assured was a farmer. Subsequently he changed his occupation to that of railroad fireman and by doing so he brought himself within the provisions of section 21 of the by-laws, set out in the plea. Under this section any member of the society who should, after the issuance of the certificate, engage or enter upon the occupation of railroad locomotive fireman, would not thereby exempt the society from any and all liability to such member, but only from liability for the death of such member directly traceable to the employment in such hazardous or prohibited occupation. In other words, the policy remained in full force and effect and the society remained liable to the beneficiary if the assured should die by any other means than that traceable to the prohibited hazardous occupation. The contract of insurance did not prohibit him from changing his occupation to that of railroad locomotive fireman, but only provided that if he did so and his death was caused by such occupation, the society would not be liable thereunder.

This same question was before us in the case of Crowe v. Modern Woodmen of America, 221 Ill. App. 668, and we there held: “Under these circumstances the doctrine of estoppel or waiver contended for by appellant can have no application because at the time Crowe changed his occupation and during all the time he remained locomotive engineer, which was until his death, no by-law existed which appellee could waive and thus inject vitality into the certificate. Crowe had a right under the by-law that existed at the time he changed his occupation to engage in a prohibited hazardous occupation, and his certificate would remain in full force and effect as to all causes of death except those directly traceable to such hazardous occupation and the acceptance of his dues by the local lodge did not waive any rights of appellee which are involved in this case.”

We still think we were correct in the conclusions expressed in the Crowe case, supra, and that the trial court did not err in sustaining the demurrers to the replications in the case at bar, therefore the judgment of the circuit court is affirmed.

Affirmed.


text:
    Fred A. Munson, Appellant, v. The Commercial State Bank of Windsor, Illinois, Appellee.
    Gen. No. 8,096.
    1. Liens — no priority between concurrent liens. Concurrent liens are created by the delivery of an execution to a sheriff and the filing of a chattel mortgage for record at the same identical time, and neither lien has precedence over the other.

      2. Executions — what burden on claimant of right to property. On a trial of the right of property seized by execution, the burden is upon the claimant to prove his right to the property,- and that it belongs to him and is not subject to sale on execution.
    Appeal by plaintiff from the County Court of Shelby county; the Hon. William C. Kelley, Judge, presiding.
    Heard in this court at the April term, 1927.
    Affirmed.
    Opinion filed October 31, 1927.
    Ward & Pugh, for appellant.
    Wm. H. Craig and J. J. Baker, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

This is an appeal from a judgment rendered in a trial of the right of property in the county court of Shelby county.

Appellee recovered judgment against George B. Gleason and his wife in the circuit court of Shelby county on June 2, 1926, in the sum of $3,123.00, and execution was levied upon all crops located “upon the following described real estate both growing and matured, consisting of about 80 acres of wheat now in the shock and located upon the north one-half of the southwest quarter of Sec. 2, and all growing crops upon the south one-half of Sec. three (3) all in Town eleven (11) North, Range five (5) East of the Third P. M. Shelby county, Illinois.” Appellant claimed the right to possession of the growing corn on section 3, mentioned in the above certificate of levy, by reason of a chattel mortgage executed by said Gleason, mortgaging, “the undivided one-half interest of all Indian corn, a growing crop on the south half of Section 3, Township 11, N., Range 3 E. of the 3rd P. M., about 120 acres of corn.” The levy was made upon the corn growing upon section 3, town 11, range 5. The chattel mortgage covers corn grown upon section 3, town 11, range 3. Appellant claims that the range was misdescribed in the chattel mortgage and range 5 should have been range 3.

It appears from the evidence that immediately after the judgment was rendered in favor of appellee, that the clerk of the circuit court issued an execution and delivered it to the sheriff who endorsed thereon, “received this 2nd day of June, A. D. 1926 at four o’clock thirty minutes P. M. Harry Eiley, Sheriff.” After the execution had been delivered to the sheriff the clerk, who was also ex-officio recorder, picked up the chattel mortgage in question, which in some manner unexplained, had been placed upon his desk, and endorsed thereon the same identical date of filing, to-wit, June 2, 1926, at 4:30 o ’clock P. M. It would thus appear that the delivery of the execution to the sheriff and the filing of the chattel mortgage for record were concurrent acts, and done at the same time, and the liens created thereby, if any, were concurrent. In, such a case neither lien would have precedence over the other. 37 C. J. 329 Section 42.

On a trial of the right of property under the statute of this state, the burden is upon the claimant to prove his right to the property and he is bound to show that the property belongs to him and is not subject to sale upon execution. Marshall v. Cunningham, 13 Ill. 20. Even if it be conceded that the chattel mortgage, on account of the misdescription of the location of the growing crops, was not void as against third persons, which question it is unnecessary for us to decide, yet appellant had no prior or superior lien by virtue of said mortgage than appellee had by virtue of his execution.

Appellant having failed to establish a superior right of property than appellee he must fail in this proceeding and the judgment of the county court is affirmed.

Affirmed.


text:
    Fred A. Munson, Appellant, v. The Commercial State Bank of Windsor, Illinois, Appellee.
    Gen. No. 8,098.
    Chattel mortgages — moral obligation as consideration. Where a, debt has been fully adjusted, paid and extinguished by a written agreement of settlement between the debtor and creditor, a subsequent chattel mortgage that is given because the debtor may be under a moral obligation to make an additional payment by reason of the creditor having received the worst of the settlement, is not a valid consideration as against an execution levy by another creditor.
    Appeal by plaintiff from the County Court of Shelby county; the Hon. William C. Kelley, Judge, presiding.
    Heard in this court at the April term, 1927.
    Affirmed.
    Opinion filed October 31, 1927.
    Ward & Pugh, for appellant.
    Wm. H. Craig and J. J. Baker, for appellee;
   Mr. Justice Eldredge

delivered the opinion of the court.

On June 2, 1926, a judgment was entered in the circuit court of Shelby county in favor of appellee and against George B. Gleason and his wife, for the sum of $3121.00. An execution was issued and levied upon the undivided interest of George B. Gleason, in 80 acres of wheat then in shock. Appellant, Fred A. Munson, claimed the possession of the property by virtue of a certain note and chattel mortgage, executed by said Gleason, dated October 12, 1925, to secure the payment of $4065.00. A trial of the right of property was had in the county court and judgment rendered in favor of appellee. It appears from the evidence that on the 17th day of March, 1922, appellant held a note executed by Gleason, dated January 7, 1921, due one year after date for the principal sum of $9362.57. This note was secured by mortgage on certain real estate owned by Gleason. Appellant also held another note executed by Gleason, dated July 8, 1921, for the principal sum of $767.15. On the 17th day of March, 1922, Gleason and Munson entered into a written agreement, in the preamble of which, among other things, the indebtedness mentioned is described, and the last paragraph thereof states, “and whereas also, it is the desire of the parties hereto, to settle and adjust said indebtedness, therefore, this agreement witnesseth: This contract of settlement, though awkwardly worded, then provides, in substance, that Gleason agrees to convey to Munson the real estate described in the mortgage securing the debt, by warranty deed subject to a prior mortgage and to pay Munson the sum of $776.10 in' cash, upon the signing of the agreement, and further provides that upon the execution and delivery of said warranty deed, subject to the conditions aforesaid and the payment of said sum of $776.10 by the said George B. Gleason to the said H. E. Munson that all existing indebtedness owing by the said George B. Gleason and his wife, Edna B. Gleason, to the said H. E. Munson be deemed paid and said Munson by these presents accepts said payment and said conveyances in full of any and all indebtedness of every kind and character now due or to become due from the said George B. Gleason and his wife, Edna B. Gleason, to the said H. E. Munson and said Munson by these presents accepts said payment and said conveyances in full of any and all indebtedness of every kind and character now due or to become due from the said George G. Gleason, and his wife Edna B. Gleason to the said H. E. Munson, vice-president, or to the Citizens State Bank of Windsor, Illinois. While this agreement purports to have been executed by H. E. Munson as “vice-president,” all the above mentioned indebtedness was indebtedness due from Gleason to the Citizens State Bank of Windsor of which at that time said H. E. Munson was vice-president. There is no claim that the terms of the agreement were not fully carried out. The chattel mortgage under which appellant claims possession of the wheat, while apparently running to appellant, Fred A. Munson, as mortgagee, in reality attempts to secure the same indebtedness which was subject to the settlement between Gleason and the Citizens State Bank of Windsor. At the time this chattel mortgage was executed Gleason was indebted to appellee in the amount of the notes upon which appellee’s judgment was entered. The basis for the validity of this chattel mortgage as advanced by appellant, is, that, notwithstanding the written agreement of settlement between Gleason and the Citizens State Bank of Windsor, whereby a complete settlement of all the indebtedness from Gleason to said bank was paid and extinguished, yet three years after the settlement was accomplished, Gleason and said bank concluded that the bank received the worst of the transaction and that Gleason was under a moral obligation to pay the bank $4065.00 additional and to give the chattel mortgage in question, to secure the same. Possibly it is but a coincidence that, at the time this supposed moral obligation invaded the consciences of Gleason and appellant, Gleason owed an unsecured debt to appellee in the sum of over $3,000. There was neither a moral nor a legal consideration for the chattel mortgage as the original indebtedness to Gleason and the State Bank of Windsor was fully adjusted, paid and extinguished by the written agreement of settlement, the terms of which were fully carried out.

The judgment of the county court is affirmed.

Affirmed.


author: Mr. Justice Niehaus

text:
    Paris Building Corporation of Paris, Illinois, Plaintiff in Error, v. Dr. C. L. Shipley, Defendant in Error.
    Gen. No. 8,061.

      Corporations — liability of stock subscriber to succeeding corporation. One who subscribed to stock in a corporation to be organized but which was not .formed and the project was abandoned, and which proposed corporation was succeeded as to its purposes by another corporation organized by some of the other’s subscribers who voluntarily continued their subscriptions to the new corporation, cannot be held liable on his subscription by the new corporation on evidence showing he had nothing to do with its organization.
    Error by plaintiff to the Circuit Court of Edgar county; the Hon. Walter Brewer, Judge, presiding.
    Heard in this court at the April term, 1927.
    Affirmed.
    Opinion filed October 31, 1927.
    Fred Rhoads, for plaintiff in error.
    G. F. Bennett and Wilbur H. Hickman, for defendant in error.
   Mr. Justice Niehaus

delivered the opinion of the court.

In this case the plaintiff in error, Paris Building Corporation of Paris, Illinois, sued the defendant in error, C. L. Shipley, on a subscription pledge of $100 made by the defendant in error to the Paris Hotel Company. The case was tried in the circuit court of Edgar county. At the close of all the evidence, the court directed a verdict for the defendant in error and rendered judgment against the plaintiff in error, for costs. This writ of error is prosecuted from the judgment.

There is practically no dispute about the facts. It clearly appears from the evidence in the record, that Glenn W. North of the Glenn W. North Company, came to the city of Paris for the purpose of submitting a proposal to build a hotel in that city; and he made a proposition to the citizens of Paris to build a hotel which would cost approximately $200,000; and if the citizens would subscribe 40 per cent of that amount, he would bond the hotel company for the other 60 per cent; and that he would sell the bonds to bé issued for the 60 per cent; and procure some one who would operate the hotel. The defendant in error subscribed to this proposition and gave his subscription in writing to help carry it into effect. The subscription is as follows:

“PARIS HOTEL COMPANY
“Paris, Illinois, June 9, 1921
“The undersigned hereby subscribes for one share of the capital stock of the Paris Hotel Company, a building corporation to be organized for the purpose of building a hotel in Paris, Illinois, and agrees to pay the par value of $100.00 a share therefor.
“I agree to pay 15 per cent of this subscription upon demand, the remainder to be paid at such times and in such installments as the said company, by its board of directors, may prescribe.
“Name, C. L. Shipley,
“Address, 219 N. Central Ave., Paris. Witness: F. C. Blackman,
“This money not to be paid until lease is closed.”

After the defendant in error and other citizens of Paris had subscribed the 40 per cent to the stock of the proposed hotel, North notified the subscribers, that he was unable to carry out his part in the financial plan for the building of the hotel; and the North hotel project was thereupon abandoned. Thereafter, however, about one hundred of the subscribers met and adopted another plan for building a hotel; and these subscribers agreed to let their subscriptions stand for the benefit of the new organization, which finally resulted in the incorporation of another company, namely, the Paris Building Corporation of Paris, Illinois; and the building of the hotel which is now in operation was thereby accomplished. It is clear, that the company to which the defendant in error gave his subscription never came into legal existence; and that the hotel plan and project for which he gave his subscription was never carried into effect. The proof does not show, nor is it contended, that the defendant in error ever became a party to any other plan or organization for building a hotel; or that he participated in the organization or incorporation of the hotel company subsequently formed which built a hotel at Paris; nor is there any evidence to show, that he, at any time, transferred or assented to a transfer of his subscription to the later hotel organization. Before a recovery can be had the proof must show a subscription to the corporation suing. Quick v. Lemon, 105 Ill. 578. But even if an obligation to pay the subscription had been incurred by the defendant in error to the Paris Hotel Company such indebtedness to the Paris Hotel Company could not be recovered by the Paris Building Corporation another corporation. It is elementary law that one person cannot collect a debt due another person. Thrasher v. Pike County R. Co., 25 Ill. 393.

The judgment is affirmed.

Judgment affirmed.


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    The People of the State of Illinois, Defendant in Error, v. William Minner, Plaintiff in Error.
    Gen. No. 8,068.
    1. Intoxicating liquors — sufficiency of allegation of illegal sale. A charge in an indictment for illegal sale of intoxicating liquors is legally sufficient in alleging that the defendant did unlawfully, wilfully, and feloniously sell intoxicating liquor fit for beverage purposes and that it contained more than one-half of one per cent of alcohol by volume, without having a permit from the Attorney General of the State.

      2. Criminal procedure — right to convict on lesser charge after waiving a greater offense. If, after a felony charge has been waived, a lesser charge remains in the indictment, conviction may be had on the lesser charge.
    3. Criminal procedure — effect on count of waiving aggravating circumstances. Waiver of allegations of the count of an indictment as to aggravating circumstances- justifying increased punishment makes such allegations surplusage and will not vitiate the count.
    4. Criminal procedure — time of waiving charge of former conviction. A waiver or nolle prosequi of the charge of former conviction of the sale of intoxicants may be entered at any stage of the cause between indictment and sentence.
    5. Criminal procedure — effect of waiving averment of former conviction. Upon the waiver of an averment in an indictment of a former conviction of the sale of intoxicating liquor, the case may then proceed as a first offense charge.
    6. Criminal procedure — waiver of one charge as amendment. Waiver of proof of a former conviction charge by the State’s attorney does not constitute an amendment to the indictment.
    7. Criminal procedure — extent of proof of indictment required. In a criminal case it is sufficient if the people prove so much of the charge in the indictment as constitutes an offense punishable at law.
    Error by defendant to the Circuit Court of McDonough county; the Hon. George C. Hillyer, Judge, presiding.
    Heard in this court at the April term, 1927.
    Affirmed.
    Opinion filed October 31, 1927.
    George V. Helfrich and Philip E. Elting, for plaintiff in error.
    Oscar E. Carlstrom, Attorney General, Roy D. Johnson, Assistant Attorney General, and William R. Harris, State’s Attorney, for defendant in error.
   Mr. Justice Niehaus

delivered the opinion of the court.

In this case a writ of error is prosecuted from a judgment of conviction in the circuit court of McDonough county on the first and second counts of an indictment. The counts charge plaintiff in error with violations of the Prohibition Act; and the questions involved on review, pertain only to the first and second counts. And it will be sufficient therefore, for the purposes of this opinion, to consider only those matters urged for reversal of the conviction which pertain to these counts. Each of the counts contains the charge, that the plaintiff in error did unlawfully, wilfully and feloniously sell intoxicating liquor fit for beverage purposes; said liquor containing more than one-half of one per cent of alcohol by volume, without having a permit from the Attorney General of the State; and the allegations in each of these counts are legally sufficient as a charge of illegal sale of intoxicating liquor in violation of the Prohibition Act. People v. Tate, 316 Ill. 52. Both counts also allege a prior violation of the Prohibition Act by illegally transporting intoxicating liquor, of which offense the plaintiff in error had been previously convicted in the county court of McDonough county. The proof of plaintiff in error’s guilt of illegally selling intoxicating liquor is clearly established by the evidence; and no proof was offered by the People that the illegal sale proven was a second offense within the meaning of the Prohibition Act; and no proof made, that the plaintiff in error had been convicted in the county court of McDonough county, for illegal transportation of intoxicating liquor, as charged in the indictment. The second offense charge was expressly waived by the people and abandoned by the State’s attorney; and the jury were instructed to ignore entirely the allegations in the indictment relative to a former conviction of the violation of the Prohibition Act; and that the jury should apply the evidence only to the charges of the illegal sale or illegal possession of intoxicating liquor. It is apparent from the verdict, that the latter charges were the only ones considered by the jury. A felony charge may be waived; and if a lesser charge remains in the indictment, a conviction may be had on the lesser charge. People v. Swarkowski, 307 Ill. 524. So it has been held, that the waiver of an allegation in a count of an indictment of aggravating circumstances justifying increased punishment does not vitiate the entire count. People v. Cohen, 307 Ill. 87. The allegations of aggravation in an indictment after they have been waived may be considered as surplusage. People v. Wood, 318 Ill. 388; People v. Cordor, 306 Ill. 264. And a waiver or nolle prosequi can be entered at any stage of the cause between the finding of the indictment and the sentence. 2 Bishops New Crim. Procedure Sec. 1394. A former conviction in an indictment may be nollied during the trial and thereupon the case may proceed as a first offense charge of unlawful sale of intoxicating liquor. People v. Gardner, 237 Ill. App. 211. We find no error in this feature of the case ; nor would the waiver of proof of former conviction charge by the State’s attorney constitute an amendment of the indictment as contended by counsel for plaintiff in error. People v. Dugas, 310 Ill. 291. 1st Chitty Crim. Law 250. In a criminal case it is sufficient if the people prove so much of the charge in the indictment as constitutes an offense punishable by law. People v. Boer, 262 Ill. 152. It is contended also by the plaintiff in error that the liquor contained in exhibit 1 was sent to the jury room; and error is assigned on this point. But there is no evidence in the record that this was done; nor that the liquor was at any time in possession of the jurors after the case had been submitted to them. We find no reversible error in any of the instructions given for the people; nor in the admission or exclusion of evidence during the trial; and it is a sufficient answer to the plaintiff in error’s contention, that the court should have directed a verdict of not guilty that this would not have been proper under the law and the evidence. People v. Karpovich, 288 Ill. 268; People v. Zurek, 277 Ill. 621.

For the reasons stated, the judgment is affirmed.

Judgment affirmed.


text:
    John Thayden, Appellant, v. Raymond Christiansen, Appellee.
    Gen. No. 8,102.
    1. Evidence — parol evidence inadmissible to show capacity in which one executes contract of employment. Where it is evident from the face and contents of a contract of employment that it is personal in its character, parol evidence is not admissible to show that the employer intended to act in a representative capacity as commissioner of highways in executing the contract.

      2. Master and servant — function, of court to construe employment contract. It is the function of the court and not of the jury to construe a contract of employment in determining whether the employer acted in a representative capacity in executing a contract.
    Appeal by plaintiff from the Circuit Court of Vermilion county; the Hon. Walter Brewer, Judge, presiding.
    Heard in this court at the April term, 1927.
    Affirmed.
    Opinion filed October 31, 1927.
    Robert R. Rodman, for appellant.
    Dyer & Dyer, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

This is a suit in assumpsit, commenced by Raymond Christiansen, the appellee, against the appellant, John Thayden, to recover a balance which he claims was due him under a written contract entered into by the parties, by which the appellant agreed to hire and furnish work for the appellee at a salary of $91.00 per month; and to pay him $45.50 at the end of every two weeks, or twice a month. The contract which is the basis of appellee’s right to recover, is as follows:

“TO WHOM IT MAT CONCERN:
“This is to certify that I, John Thayden, agree to hire Raymond Christiansen and furnish him work for ten months of the- year starting March 1, 1925 at a salary of $91.00 per month. This salary is to be paid him at the end of every two weeks, or $45.50 twice a month.
“This is a contract between myself and Raymond Christiansen and takes into consideration that it is binding on Mr. Christiansen as much as myself and his work for the township must be up to the standard required by the township.”
Signed: Raymond Christiansen
Signed: John Thayden.
Witnesses: Franklin H. Lutz.

There was a trial in the circuit court of Vermilion county on appeal from a justice of the peace. The trial resulted in a verdict by the jury, finding in favor of the appellee, and assessing his damages at $208.45, upon which the trial court rendered judgment. This appeal is prosecuted from the judgment.

It is urged on appeal that the contract referred to cannot be legally considered as the personal contract of the appellant because, as a matter of fact, the appellant, in hiring the appellee was acting as highway commissioner in Butler township; and that all the work which the appellant furnished him, and which the appellee performed, was township work. Whether or not the contract is a personal contract must be determined from the instrument itself. It is evident from the face and contents of the instrument, that it is personal in its character and scope. Parol evidence cannot therefore be admitted to change or vary its items; nor to show, that the appellant intended to act in a representative capacity as commissioner of highways in executing the contract. Hypes v. Griffin, 89 Ill. 134. And the court was not in error in construing the contract; this is the function of the court and does not come within the province of the jury. We find no error in the giving or modifying of instructions; nor in the admission or exclusion of evidence. The judgment is therefore affirmed.

Judgment affirmed.


text:
    Mamie Walker, Appellee, v. Beulah Backus, Appellant.
    Gen. No. 8,109.
    1. Highways and streets — instruction on negligent operation of automobile not charged in declaration. An instruction in an automobile collision action that defendant was liable if she was guilty of negligence in the operation of her car as “she approached said Second street, ’ ’ held misleading in not confining the negligence to that charged in the declaration of negligent operation of the car while driving upon an avenue “towards the west near its intersection with Second street. ’ ’
    2. Damages — instructing on financial loss not charged in declaration. An instruction in a personal injury action is erroneous which includes financial loss as an element of damages when no financial loss was averred as an element of damages in the declaration.
    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, 1927.
    Reversed and remanded.
    Opinion filed October 31, 1927.
    Gillespie & Gillespie, for appellant; Arthur M. Fitzgerald, Louis F. Gillespie and Hugh J. Dobbs, of counsel.
    William J. Lawler, John G. Friedmeyer and Alfred H. Greening, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

In this case, Mamie Walker the appellee, sued the appellant Beulah Backus. in the circuit court of Sangamon county, to recover damages which resulted to her from injuries which she sustained in a collision which occurred while driving her automobile on South Grand avenue at the intersection of Second street in the city of Springfield. The appellee bases her right to recover on the ground alleged in her declaration, that the appellant was guilty of negligence in driving and operating her car at the intersection referred to; and that this negligence caused the collision. The trial resulted in a verdict of guilty, fixing appellee’s damages at $1000; $250 was remitted by the appellee; and thereupon a judgment was rendered for $750 against the appellant. This appeal is prosecuted from the judgment.

Numerous errors are assigned; but for the purposes of this opinion it is not necessary to discuss all the questions raised concerning the assignments of error. We find no reversible error in the admission or rejection of evidence at the trial; nor in the refusal of the court to direct a verdict for the appellant. We find reversible error, however, in the giving of the sixth and eighth instructions for the appellee. The sixth instruction is as follows:

“The Court instructs the jury that if you believe from a preponderance of the evidence in this case that the plaintiff attempted to turn from South Grand boulevard into Second street, and while doing so was then and there exercising reasonable care and diligence for her own safety and was not guilty of any negligence, and the defendant was guilty of negligence in the operation of her automobile as she approached said Second street, and that such negligence of the defendant, if any, contributed to the proximate cause of the collision and the injury to the plaintiff, then you will find the defendant guilty. ’ ’

The vice of this instruction is, that it does not base the appellee’s right of recovery upon the negligence charged in the declaration. The charge of negligence in the declaration is, that the appellant “so negligently and carelessly drove and operated the said automobile which she was driving over and upon said South Grand Avenue towards the west and near its intersection with said Second street” as to cause her automobile to run into and collide with the automobile of the appellee, while the instruction told the jury that the appellant was liable if she was “guilty of negligence in the operation of her automobile as she approached said Second street.” The language in this instruction does not confine the alleged negligence for which the jury should hold the appellant liable to the negligence, if any, committed in the operation of the car “towards the west near the intersection,” but extends it to any negligence that the appellant may have been guilty of in approaching Second street, no matter at what distance from the intersection. Under this instruction the jury might have been misled into the conclusion, that if the appellant drove her automobile at an illegal rate of speed at any time as she was approaching the intersection the appellee’s right to recover would be thereby established, even though the appellant had ceased to drive at such illegal rate long before the intersection was reached. There is also error in the eighth instruction which concerns the measure of damages, because it includes financial loss as an element which the jury may consider in fixing the amount of damages which the appellee had a right to recover. No financial loss is averred as an element of damages in the declaration; and the appellee under the declaration has no right to recover therefor; and, moreover, the instruction does not confine the jury in making an estimate of financial loss to any evidence on that subject.

For the errors indicated judgment is reversed and cause remanded.

Reversed and remanded.


author: Per Curiam.

text:
    John Maxon, Appellant, v. United States Underwriters Company and Frederick Brockhouse, Appellees.
    Gen. No. 8,055.
    1. Highways and streets — effect of scienter on possession of automobile with changed number. The crime of having in possession an automobile with the original engine number removed, defaced or altered, as denounced in Cahill’s St. ch. 95a, ¶ 36, has no qualification and the element of scienter does not enter into it.
    2. Highways and streets — purpose of penalising possession of automobile with changed number. The purpose of Cahill’s St. ch. 95a, ¶ 36, in making a crime of the possession of an automobile with a defaced, destroyed or altered engine number was not only the protection of car owners from theft, but of the general public from crimes and escape of criminals, in stolen ears.
    3. Conversion — burden of proving ownership. A plaintiff in trover has the burden of proving his alleged ownership of an automobile, which was taken from him on the ground that the engine number had been altered, and was then turned over to the true owner.
    4. Highways and streets — purpose of permitting automobile owners to mark new engine number. The purpose of the proviso in Cahill’s St. ch. 95a, ¶ 36, permitting automobile owners to mark a new number on their automobile engines is to permit those whose engine numbers have been altered through no fault of theirs to put a new number upon the engine and thus escape the penalty prescribed for possessing a ear with altered engine number.
    5. Highways and streets — effect of proviso, in statute forbidding possession of automobile with altered engine number. The penalty for possessing or owning an automobile with altered engine- number, denounced in Cahill’s St. ch. 95a, ¶ 36, is not weakened or affected in any way by the proviso therein permitting owners, whose numbers have been altered without their fault to secure a new number.
    6. Appeal and error — effect of conflicting instructions on proper verdict. If a verdict against plaintiff was clearly proper and none other could have been rendered as a matter of law, his right in review will not be affected by the mere fact that certain instructions given were improper as being in conflict.
    7. Conversion — necessity of ownership in plaintiff. A plaintiff in trover, who was shown on the trial to have had possession of an automobile with an altered engine number when it was taken from him and who could not show title in the way prescribed by statute for automobile owners and had no bill of sale of the car and had not reported his purchase to the authorities or taken out a license, had no such ownership as entitled him to recover.

      8. Highways and streets — on what court’s custody of automobile with altered engine number depends. The court’s custody of an automobile with an altered engine number is made to depend, by Cahill’s St. ch. 95a, ¶ 36, upon the fact that the person in whose possession such automobile is found, is being prosecuted for possession of an automobile with an altered number and that the ear is to be junked under the court’s order if such fact be proved.
    9. Conversion — right to possession by criminal possessor of automobile as affected by failure to prosecute. A failure to prosecute one who has been found with an automobile having an altered engine number, penalized under Cahill’s St. ch. 95a, ¶ 36, and the consequent failure of the court to take custody of the car, and a turning of the ear to the alleged true owner, has no effect on such criminal’s right of possession to the car.
    Appeal by plaintiff from the Circuit Court of Sangamon county; the Hon. E. S. Smith, Judge, presiding.
    Heard in this court at the October term, 1926.
    Affirmed.
    Opinion filed October 31, 1927.
    John J. Friedmeyer, for appellant.
    Henry L. Child, for appellees; H. P. Samuell, of counsel.
   Per Curiam.

Suit was begun by appellant against appellees in replevin. The declaration consisted of three counts, two in replevin and one in trover. The first count averred defendants took and detained one certain 1924-model Ford Tudor sedan (describing it), and averred that the correct number was not known, and that it was the property of plaintiff and of the value of five hundred dollars. The second count averred that defendants unjustly detained the property described in the first count. The third count was in trover, with the usual technical terms to describe the cause of action, and averred that plaintiff was the owner. The usual pleas were filed to the several counts and it is considered unimportant to set them out. Before the trial all defendants except one were dismissed out of the case and trial was had as to the Underwriters Company and Frederick Brockhouse, who was later made a party defendant.

Appellant resided about four miles south of the city of Springfield, in the country. While driving the automobile in question, not far from his home it was seized by. Jessburg, Shafer and Healy, who were police officers in the city of Springfield. Appellant claims to have purchased the automobile about the middle of November, 1924, from a stranger named “George,” whom he had never seen before, nor since, at the farm of “Teal” Harvey, located about three miles south of Springfield. Appellant claimed that before he purchased the automobile he had it examined at this farm by a Springfield mechanic named Crocker. Crocker, however, testified that he did not examine the automobile at the farm but examined an automobile similar to the one described by appellant on Fifth street, in the city of Springfield.

Appellant further testified that he did not know the engine or motor number on the automobile at the time he claims to have purchased it, or at any time during the time he had possession of it, nor did he know whether or not the original engine number had been altered, removed or changed. Appellant further testified. that he did not know what the number of the license plate was on the automobile at the time he claims to have purchased it, as the seller took it away with him, nor did appellant apply to the secretary of state for a new license either in 1924 or 1925. Appellant did not secure from the seller a bill of sale of the automobile or other evidence of transfer, nor did he secure any receipt or evidence of payment for the automobile from the seller, and claims to have paid the seller $450 in cash for the automobile without any of the extra equipment that he claims to have placed on the automobile after he claims to have purchased it.

J. E. Rose positively identified the automobile in question as the car stolen from him in Jacksonville in May, 1925. Officer Shafer of the police force of the city of Springfield, R. A. Balcom, garage owner, John E. Rose and J. V. Kennedy examined the automobile at once after the officers took possession of it from appellant. Each of these witnesses testified that the original engine ■ or motor number of the automobile had been changed, altered and removed and a new motor or engine number substituted therefor on the engine block. There was no denial by appellant or any of his witnesses that such original engine number had been so altered, changed or removed and a new engine number substituted therefor. All that appellant claimed in this regard was that if such change, alteration or substitution" had been made it had not been made with his knowledge or consent, and that he knew nothing about it.

The property not having been found, the trial was had on the count in trover. The jury found the defendant not guilty, motion for a new trial was denied and judgment in bar of the action was rendered, with judgment against appellant for costs. To reverse the judgment this appeal is prosecuted. The errors assigned will be noticed, so far as it is deemed necessary to a disposition of the case. The contention for reversal of the judgment is based upon two instructions given for appellees. They are: “The Court instructs the jury if they believe from the preponderance of the evidence that the original engine number on the automobile involved in this suit had been destroyed, removed, altered, covered or defaced during the time that such automobile was in the possession of the plaintiff, or prior thereto, that in such case plaintiff cannot recover in this suit, and you should return a verdict for the defendants, even though you may further believe from the evidence that the plaintiff did not know that such original engine number on said automobile had been destroyed, removed, altered, covered or defaced during the time above mentioned.”

“The Court instructs the jury that under the Motor Vehicle Law of this State, it is unlawful to possess any automobile, the original number of which has been destroyed, removed, altered or defaced. And if from the greater weight of the evidence you believe that the original engine number of the automobile involved in this case had been removed, altered or defaced, and that the same was so altered, removed or defaced at the time of the alleged taking thereof from the plaintiff, then and in such case the plaintiff was not at said time entitled to the possession of said automobile and your verdict should be in favor of the defendants,” Both instructions are substantially in the language of the statute, — section 35 of the act in relation to vehicles, Cahill’s St. ch. 95a, ¶ 36. It denounces as a crime the owning, having the custody or possession of a motor vehicle, the original engine number of which has been destroyed, removed, altered, covered or defaced. There is no qualification of the possession declared to be a crime. The element of scienter does not enter into it. The underlying policy of the legislation is succinctly expressed in People v. Billardello, 319 Ill. 124, 125: “The prohibition * * * was enacted in the exercise of the police power in the interest of the. general welfare, not only for the protection of that part of the public who may be the owners of automobiles against theft, but for the protection of the public in general against the commission of crimes and the escape of criminals by the use of stolen automobiles whose identification is made difficult by the destruction of identifying marks. Not only is the stealing of automobiles an extensive criminal avocation, but stolen automobiles are used extensively in the commission of other crimes in bringing the criminals to the scene of their criminal action from a great distance and in enabling them to depart swiftly to a great digtance, leaving slight clues to their identity. These evils, and others connected with the use of automobiles and other motor vehicles, have rendered the adoption of stringent legislative regulation of dealing in motor vehicles, and of the transfer and use of them, necessary for the protection of the public.”

Referring to People v. Fernow, 286 Ill. 627, and People v. Johnson, 288 Ill. 442, it is said: “The legislature has deemed it necessary to the protection of the public from the evils arising from the unregulated use, sale and transfer of motor vehicles, from the crimes committed by their use, from the thefts to which they are so readily subject, to provide a system of registration and identification. This is in part based on the factory and engine numbers, which must be shown in the bill of sale which every manufacturer or dealer, on the sale of any motor vehicle, is required, to give to the purchaser. The purchaser is required, within ten days, to apply to the Secretary of State for a certificate of registration, and his application must state the factory and engine numbers of the vehicle. On every transfer the vendor must give a bill of sale showing the factory and engine numbers and remove the license number plate or plates from the vehicle, and the purchaser must register the vehicle as in case of an original registration. Thus, if purchasers of motor vehicles will observe the plain provisions of the law, the ownership of any motor vehicle may be readily traced from the manufacturer to the owner at any time. There is no hardship in requiring every citizen to observe the provisions of the law enacted for the protection of all citizens. Bills of sale must accompany every transfer from the manufacturer to the last owner. * * * This provision was not intended to relieve the purchaser of a motor vehicle the engine number of which had been destroyed, removed, altered or defaced, from the penalty incurred by reason of his neglect to ascertain that fact, but was intended, as the language expresses, for the benefit of a person the original engine number of whose motor vehicle, while in his possession, has been without his knowledge or consent destroyed, removed, altered or defaced.” (People v. Oberby, 323 Ill. 364.)

The circumstances under which appellant purchased the automobile cast a cloud on his title under the statute as construed by the court. In the first place, he purchased it, he states, from a man named “George.” He had never seen him before and has not seen him since. He did not know his surname. Appellant states that Crocker examined this automobile for him at the Harvey farm. Crocker states that he did not examine it there, but did examine an automobile like this in Springfield. It is not shown that Crocker ever saw this car. Appellant did not know the engine numbers when he purchased the car. He did not know whether the original engine number had been changed or removed. When he purchased he did not know what the license plate number was. The seller took that away with him. Appellant applied for no license in 1924 or 1925. Why? He knew if he did apply to the secretary of state for such license he must give a minute description of the car, its engine number and other information that would embarrass him. No one can read the evidence and believe that the number on the engine was not changed when appellant purchased the car. The evidence of ownership is not left in doubt. While appellant testifies that he purchased it in 1924, every circumstance is against him. The jury found against him on the issue of ownership and could not, under the law and the facts, have found differently. The burden was cast upon appellant to prove ownership. If he had followed the plain provisions of the statute and if he did purchase the car when he testifies he did, he would have been able to establish a clear paper title from the factory to himself. Counsel seems to rely upon the proviso of the statute above referred to.

It is said in the brief that an owner or custodian of a car, with a changed original number, may apply to the secretary of state for permission to make or stamp or cause to be made or stamped on the engine a special engine number. But it is not the intention of the statute that he may or may not at pleasure do so. Such a construction would not advance but retard the remedy. “May” in that connection expresses the right to do so. A proviso cannot weaken nor take away the positive authority of the purview of a statute. The purpose of the statute is the protection of the public in the different respects the learned justice so clearly lays down in the Billardello case, supra. It is clear the proviso was inserted for the benefit and protection of those who may find their title to automobiles precarious when they are not at fault. If they do not exercise the right, they refrain at their peril. In that event, the power is placed in their hands to remedy it, if they see fit. But no laxity of observance of the act is authorized. The proviso in no manner changes the effect of the purview and appellant, having failed to avail of its saving feature, is in no position to complain. It may be added that the purpose of the proviso is only in aid of those who are able, under ■ the provisions of the statute, to trace good title to the machine.

Appellant contends that the instructions given for appellee are directly contradictory to two instructions given for appellant. The' first informed the jury in substance that if they believed from the preponderance of the evidence that plaintiff was entitled to the possession of the automobile and equipment thereto attached, and was in the actual possession thereof at the time it was forcibly taken by the police officers, * * * and that said car was not stolen, and that the engine numbers thereon had not been destroyed, removed, altered, covered or defaced, plaintiff was entitled to recover. The other instruction informed the jury that if they believed from the evidence that Kennedy, on behalf of defendant United States Underwriters Company, converted the property to his own use or to the use of the company, and that plaintiff was entitled to the possession, they should find the issues for the defendant and assess his damages at the fair cash market value at the time of its delivery. In so far as the instructions do conflict in advising the jury to find the right of possession in the plaintiff, they were improperly given. The mere fact of conflict cannot affect appellant’s right in review if the verdict was clearly right and none other could have been rendered as a matter of law. Courts of appeal do not sit to review judgments because errors may have intervened if no other result could be legally attained on another trial. Appellant was not entitled to the possession of the car at the time it was taken from him by the police officers. His possession was in violation of a criminal statute. He would not be heard to say he thought or believed he had a right to possession for the reasons stated in the Billardello case. The evidence clearly shows, not only criminal possession, but that he had no shadow of title he could assert as against appellees.

Some complaint is made that the court did not retain possession of the car after it had been seized by the officers. The duty to do so rests upon compliance with the requirements of the second paragraph of section 35 of the Motor Vehicle Act, Cahill’s St. ch. 95a, ¶ 36. It was the duty of the officers under that paragraph to seize the vehicle, arrest the custodian thereof, and cause prosecution to be brought in a court of competent jurisdiction. In that event, it would have been the duty of the court to retain, the custody of the vehicle pending the prosecution of the person arrested and in case of conviction the motor vehicle should remain in the custody of the court until the fine and costs of prosecution .should be paid. When the fine and costs should be paid, it would be the duty of the court to deliver the vehicle to the supposed owner or custodian for the sole purpose of removing the engine from said motor vehicle and tearing apart said engine and disposing of the same for “junk.” There could, therefore, be no custody for the court to retain, the custodian (appellant here) not having been prosecuted for violation of the act, but that fact could not possibly change or in any manner affect the legal rights of the owner of the car. Those rights could not be affected by the officer turning the property over to the owner instead of bringing it into court and having the engine “junked.” It does not lie with plaintiff, custodian in this case, to complain that the engine was not “junked.”

The judgment of the circuit court conforms to the facts and the law applicable thereto, and is accordingly affirmed.

Affirmed.