text:
    Philip Lichtenstadt v.Benjamin W. Fleisher et al.

      Injunctions—Dissolution—Damages—Suggestion of—Measure of—Solicitor's Fees—Discretion of Court.

    1. Where an injunction has been dissolved, the damages to be allowed in the assessment upon a suggestion of damages, are only such as have resulted from the improper suing out of the injunction. Solicitor’s fees must be confined to the proper allowance for services rendered on the motion to dissolve.
    2. The allowance of solicitor’s fees in such cases rests somewhat in the discretion of the chancellor before whom the litigation has proceeded, and unless he has very clearly gone wrong, his discretion will not be interfered with by this court.

      3. In such a case this court will not reverse merely for the reason that the finding of the court below was for a less sum than the lowest amount fixed by the witnesses.
    [Opinion filed November 23, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Gwyhh Garrett, Judge, presiding.
    Mr. Allan C. Story, for appellant.
    In November, 1884, a bill in chancery was filed in the Superior Court against appellant and others, to enjoin them from preparing for trial or trying a certain replevin suit which had been brought, for a quantity of woolen yarn, sworn by plaintiffs to be worth $5,000, and which they had obtained from Lichtenstadt on the writ, and shipped to Philadelphia before filing the bill. They also claimed in the bill for an injunction a quantity of other yarn, claimed to be worth in all from $8,000 to $9,000.
    The writ was served just as the replevin case was to be called for trial, and of course the attorney’s fees for this and other expenses of preparation for trial m the case, was an element of damage to appellant by reason of the injunction.
    Several attempts were made to dissolve the injunction, and complainants were twice allowed to amend their bill. Finally, after answer, a new injunction bond was ordered, and finally on the third motion the injunction was modified, so as to allow all steps to be taken in replevin suit except to try the same.
    The chancery cause was tried upon bill, answer, replication and proofs, consuming five days in the trial. The court, Judge Garnett, dismissed the bill for want of equity at cost of complainant, and suggestions having been filed, assessed damages upon dissolution of injunction at $150 in favor of appellant.
    Under the previous decisions of the Supreme Court and this court there should have been allowed a sum at least twice as large as the judgment appealed from. Joslyn v. Dickerson, 71 Ill. 25; Mason v. City of Shawneetown, 77 Ill. 538; Hartwell v. Black, 48 Ill. 301; School Directors v. Trustees, 66 Ill. 247.

      Mr. Julius Stern, for appellees.
   Per Curiam.

This is an appeal from the finding and judgment rendered by the chancellor upon a suggestion of damages on the dissolution of an injunction. The injunction was dissolved on final hearing, and much of the work done by counsel for which recompense was sought, was upon the merits and was necessary, and presumably would be valuable to appellant in the suit at law, to enjoin the prosecution of which the bill in chancery was filed. The only darnages claimed was for attorney’s fees.

While the testimony introduced would warrant the court in allowing a large amount, we are unable to say that the court so far erred in fixing the amount for which judgment was rendered as to require us to reverse the judgment.

The damages to.be allowed in such assessments are only such as result from an improper suing out of the injunction, and the solicitor’s fees must be confined to the proper allowance, for services rendered in the motion to dissolve. The allowance of such fees rests somewhat in the discretion of the chancellor before whom the litigation has proceeded, and the discrimination made by him between the services to be charged to the motion to dissolve and those to be referred to the trial of the entire case presents a difficult question for a reviewing court, and unless, therefore, he has very clearly gone wrong, his discretion will not be interfered with.

We find no case in which the judgment of the chancellor has in such case been set aside on the ground that the allowance of attorney’s fe.es was, under the evidence, too small, and in view of the opinions of the value of the services which are usually given by lawyers who are called as witnesses to prove the value of such services, we are loth to set a precedent. We can not reverse in such a case for the reason that the finding of the court is for a less sum than the lowest amount fixed by witnesses.

The judgment must be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Bailey, J.

license: Public Domain

text:
      Wm. A. Paulsen and Flora A. Brown v. Charles Manske et al.

      Mechanic's Lien—Contracts—Whether with Owners—Agency—Evidence—Admissions—Release—Waiver—Arbitration—Revocation.

    1. Upon a petition for a mechanic’s lien, it is held: That the contracts under which the petitioners furnished labor and materials were made with the owners of the land by one who, though acting in his own name, was authorized to act and was in fact acting, not only for himself but as their agent; that certain admissions by the beneficial owner, contained in an agreement submitting the matters in dispute to arbitration, are competent evidence tending to establish the agency, and as such sufficient to sustain the decree for the petitioners; that a release given by the petitioners to a mortgagee is not available to the owners as a waiver of the liens in question; and that said liens were not affected by the agreement to submit to arbitration, the commencement of this suit having been a revocation of the agreement to arbitrate.
    2. Either party to a submission, may, at any time before an award, revoke the authority of the arbitrators. The institution of a suit before award by one of the parties, the cause of action being the same subject-matter, revokes by implication the agreement to arbitrate.
    [Opinion filed November 23, 1887.]
    Appeal from the Circuit Court of Cook County; the Hon. Cykus Epleb, Judge, presiding.
    This was a petition filed by Charles Manske against William A. Paulsen, Lewis A. Brown, Flora A. Brown, August Zander, Otto Sclimidt and Henry Sierks, for a mechanics’ lien. The petition alleges that on the 23d day of October, 1884, the defendant Lewis A. Brown was the owner of the legal title, in trust for defendant, Flora A. Brown, of a certain lot on the northwest corner of Stone and Scott Streets, Chicago, having a frontage of 130 feet on Scott Street and forty-three and sixty-one one-hundredths feet on Stone Street; that on that day Lewis A. Brown and Flora A. Brown entered into a written contract with Paulsen, thereby appointing him their attorney in fact, to contract for the erection of certain buildings on said lot, and to charge, obligate and bind them to pay for the same; that either in and by said power of attorney or some'other contract between him and them, Paulsen was vested with some equitable interest in said premises, the precise nature of which was unknown to the petitioner; that October 23, 1884, the Browns and Paulsen entered into a contract with the petitioner by which the petitioner contracted to furnish the materials and do the cut-stone work in said buildings for §9,900, payable from time to time as the work progressed; that said contract, though signed by Paulsen only, was in fact executed by him not only in his own behalf but in behalf of the Browns, and was binding in equity on them as well as on him; that the petitioner performed his contract according to its terms, and completed the same May 25, 1885, and that after deducting all payments, there remained due him the sum of $3,000.75, with interest from May 25, 1885; that the other defendants had or claimed some interest in the premises, hut that such claims were subsequent and junior to the petitioner’s lien.
    Defendants Zander, Schmidt and Sierks, each filed an answer and cross-petition, admitting the allegations of the original petition as to the ownership of the premises, the contract between the Browns and Paulsen and Paulsen’s equitable interest, and each setting up a contract with the Browns and Paulsen to furnish certain materials and do certain portions of the work in the construction of said buildings, and alleging the performance of such contracts; that certain sums remained due thereon, and praying for a lien on the premises therefor.
    The Browns and Paulsen answered, admitting that Lewis A. Brown was seized in fee of said premises for the use of Flora A. Brown, and admitting that there was a contract between the Browns and Paulsen concerning the anticipated erection of said buildings, but denying that Paulsen was the agent of the Browns, alleging that Paulsen, when contracting with the petitioner and with the defendants, Zander, Schmidt and Sierks, did not act as the agent of the Browns, and that they were not liable on such contracts; that all of said parties had entered into an agreement for an arbitration of the matters in dispute between them, and that said arbitration proceedings had not reached a conclusion, their failure so to do being in no way attributable to the Browns and Paulsen, and that such submission to arbitration was a waiver on the part of the petitioners of their liens on said premises. The answer also alleged that the petitioners in the original and cross-petitions had executed and delivered to one of the defendants answering, an explicit waiver in writing of any liens which they might have upon said premises for any work or materials put upon the same.
    At the hearing, which was had on pleadings and proofs, the petitioners gave in evidence two co"ntracts executed by Lewis A. Brown and Flora A. Brown of the first part, and William A, Paulsen of the second part, under their respective hands and seals, and both bearing date October 1, 1881. By one of said contracts the party of the first part covenanted and agreed to convey to the party of the second part, in fee, clear of all incumbrances, by a good and sufficient warranty deed, the west ninety-five feet of said lot, being all of the lot except the east thirty-five feet, “upon which a double house is to be erected, according to an agreement of even date herewith, and which is hereby made a part of this contract,” and the party of the second part agreed to pay the party of the first part for the portion of the lot so to be conveyed, the sum of $5,816, by building said double house upon said thirty-five feet of said lot.
    By the other contract it was agreed, in consideration of the contract above described, that the party of the second part should build a row or block of houses on said lot, according to certain plans and specifications, making the house on the east thirty-five feet a double house, and said contract then proceeded as follows:
    “It is further agreed hereby, that said first parties shall execute any notes, trust deeds, mortgages or any documents that may be necessary for the purpose of borrowing money on said lot with which to erect said block of buildings, agreeing that all moneys so borrowed shall be used by said first parties for paying for said buildings, to be paid, however, only on orders or architect’s certificates, endorsed by said second party, meaning hereby, that said first party shall control all the money expended on said buildings, but that said second party shall have entire control of the work, and, by his orders, of the payment of contractors.
    “ It is further agreed, that when said block is finished according to said plans, said first parties shall estimate the cost of the east house of said block, according to the vouchers and certificates of cost for the same, and credit said second party with the amount so ascertained, and if said amount be more than the purchase money named in the contract for a deed above mentioned, said first parties will execute the deed therein named, and assume so much of the mortgage debt on said lot and the buildings thereon, as the cost of said east house exceeds the amount of said purchase money; but if the cost of said east house as above be less than said purchase money, then the second party shall pay the difference in cash, or secure said first parties for any amount that may appear due, and when all of said purchase money shall have been paid, then the deed shall be executed according to the contract for a deed herein-before mentioned.
    “It is hereby understood to be the meaning and intention of the parties hereto, that the second party is to have and to enjoy any profits that may arise or grow out of the performance of this contract or the contract for a warranty deed hereinbefore mentioned, and to control the property in everyway until all the provisions of both contracts are performed; and that the second party will furnish the vouchers and architect’s certificates to the first parties for the payment of moneys and upon which to estimate the cost of said east house. In case of dispute as to said cost, each party hereto shall choose an appraiser, and the two chosen shall name a third, and the three shall finally decide said cost; and said first parties are to have the said east house at its cost as aforesaid, and they shall execute a deed for the land as soon as said land is fully paid for, either by the money said first parties find has been expended in the building on the part of the lot reserved by them, or paid for in any other manner by said second party.”

      Manske, Zander and Schmidt produced in evidence contracts in writing for the labor and materials which they respectively claim to have furnished for said buildings. Upon their face these contracts purport to be between them and Paulsen individually, and they are signed by Paulsen alone. Sierks proved a verbal contract with Paulsen under which he, as architect, drew the plans and specifications, and superintended the erection of said buildings. Each of said parties gave evidence tending to show the performance by each of his contract, and also showing the balance due them respectively.
    To obtain money to erect said buildings, the Browns obtained a loan of §22,000 from the United States Mortgage Company, and executed to said company a mortgage on said premises for that amount. Of the money thus borrowed, §15,000 was paid over by the agent of the mortgage company to the Browns during the progress of the work. It appearing that the petitioners and others were claiming mechanics’ liens on said premises, the agent of the mortgage company refused to pay over the remaining §7,000 unless matters should be so arranged as to give said company priority over said liens. At the same time various disputes having arisen between Flora A. Brown, to whom the legal title to said lot had in the meantime been conveyed by Lewis A. Brown and Paulsen, of the one part, and said mechanics and material men of the other, an agreement was entered into between them, under their respective hands and seals, bearing date August 17, 1885, submitting said differences to arbitration. Said agreement was executed by Mrs. Brown, Paulsen, the petitioners and others, and recited that: “ Whereas, the said William A. Paulsen, on his behalf, and on behalf of Flora A. Brown, did, several months ago, in the erection of certain buildings on (the premises in question), enter into written contracts ” with Manske, Zander, Schmidt and various others (setting out the substance of said contracts), and it was claimed by all of said contractors that they had fully performed their contracts, and that there was due them various sums particularly specified; and, “ Whereas, said Paulsen, on his own behalf and on behalf of said Flora A. Brown, entered into a verbal contract with Charles Thielemann, for the furnishing of the galvanized iron cornice work in and about the erection of said buildings,” etc.; and, “ Whereas, said Paulsen, on his own behalf and on behalf of said Flora A. Brown, as aforesaid, at the commencement, employed said Henry Sierks as architect, to superintend the erection of said buildings, and to exercise all necessary control for the purpose of securing a strict performance on the part of said several contractors of the terms of said contracts,” etc.; and, “Whereas, it is claimed by said Paulsen, on behalf of the said party of the first part, that said contractors, or some of them, have not furnished material, and have not performed their work as they were required to do by the terms of said contracts,” etc.; and, “ Whereas, all of said parties to this agreement are desirous of avoiding litigation, and determining their disputes in as speedy a manner as possible, so as to secure the prompt payment on the part of said party of the first part, of all claims due the contractors, as well as a proper admeasurement and adjustment of all damages to said Paulsen, if any shall appear to exist. Now, therefore, in view of the premises, the parties to this agreement have decided to submit to an arbitration of all differences existing between them.”
    The agreement then recited that Mrs. Brown and Paulsen, the parties of the first part, had appointed one Newman, and the contractors and architect, one Dryer, as arbitrators, who were to select a third arbitrator to act with them. Then, after directing the mode of procedure by the arbitrators and the form of their award, and providing that such award might be entered in the Circuit Court of Cook County as a final judgment and determination of thateourt, it contained the following stipulati on: “It is hereby stipulated and agreed by said contractors and the architect, that, so far as their claims for mechanics’ liens against said premises are concerned, theUnited States Mortgage Company, a corporation, has a lien prior and superior to theirs by virtue of said mortgage, made, acknowledged and delivered to said corporation by Lewis A. and Flora A. Brown, the owners of the land on which said buildings are erected, under date of December 31,1881, and conveying said premises for the purposes of securing an indebtedness of $22,000.”

      The stipulation in regard to the lien of the mortgage company, contained in the foregoing agreement, not proving satisfactory to the agent of said company, the architect and mechanics, after considerable negotiation among the parties, executed and delivered to said agent the following instrument:
    a We, the undersigned, contractors for the buildings erected by Flora A. Brown and William A. Paulsen, on the premises described as lot 1, block 6, in Stone’s subdivision of Astor’s addition to Chicago, hereby waive and relinquish all and every right to a mechanic’s lien under the statute, for work done and materials furnished on said premises, and particularly our priority of claim so far as the United States Mortgage Company Is concerned.

      u Chicago, August 26, 1885.”
    This waiver was signed by Zander, Schmidt, Sierks, Manske and various other mechanics and material men. Upon the delivery of said waiver to the agent of the mortgage company, said agent paid over to Mrs. Brown the remaining §7,000 of the loan.
    It appears that the arbitrators appointed by the parties were unable to agree upon a third arbitrator. A stipulation was thereupon entered into authorizing the appointment of such third arbitrator by the Circuit Court, but before that was done, Dryer, the arbitrator selected by the mechanics, became sick and went to Europe. An attempt was then made to obtain Paulsen’s consent to the substitution by the mechanics of another arbitrator in his place, and such consent being refused, this suit was brought.
    The court, by its decree, found the petitioners entitled to liens on said premises for the several amounts remaining due them on their respective contracts, and ordered Mrs. Brown and Paulsen to pay the same within five days, or in default of such payment, that said premises be sold.
    Messrs. Edward J. Judd and A. M. Pence, for appellants.
    The contracts in this case were made with' one not the owner of the land, and so no lien can exist in favor of the contractors. Woodburn v. Gifford, 66 Ill. 285; Wetherill v. Ohlendorf, 61 Ill. 283. The owners of the land in this case, the Browns, contracted with Paulsen to erect certain buildings, and he in turn entered into personal contracts with the lien claimants in this cause. Their position is that of subcontractors, and they are entitled to no lien, as they have given no notices to the owners as required by statute. The taking of other security is a waiver of the lien. Benneson v. Thayer, 23 Ill. 374; Kinzey v. Thomas, 28 Ill. 502. The lien claimants in this cause contracted with Paulsen individually, and subsequently entered into articles of arbitration in which Flora A. Brown joined, making herself liable for any award which might be rendered. This constitutes a waiver of the lien, if any existed.
    Messrs. Vocke & Storck, for appellees.
    As a general rule an equitable as well as a legal owner of property may create a mechanics’ lien. Phillips on Mechanics’ Liens, Sec. 66.
    The word “ owner” includes owner in equity as well as at law. Atkins v. Little, 17 Minn. 353; Rollins v. Cross, 45 N. Y. 768.
    Parties having contracted for the purchase of property, and entered into possession, will, so far as their equitable interests are concerned, be regarded as owners. Phillips on Mechanics’ Liens, Sec. 69; Stockwell v. Carpenter, 27 Iowa, 119.
    The interest of the owner may be a fee simple, an estate for life, or it may be any estate less than a fee. Tracy v. Rogers, 69 Ill. 662.
    The fact that a person acted as an agent may be shown, although he signed the contract in his own name. Whitlock v. Hicks, 75 Ill. 460.
    The liability of the principal to third persons upon contracts made by his agent, within the scope of his authority, is not varied by the mere fact that the agent contracts in his own name, whether he discloses his agency or not, provided the circumstances of the case do not show that an exclusive credit is given to the agent. Story on Agency (7th Ed.), Sec. 446.
    The release given to the contractors is inoperative as to appellants. The release was executed on the faith of the promise to enter into arbitration, and unless that agreement has been performed appellants should not be permitted to claim any benefits under the release.
    The release is unquestionably operative as to the mortgage company, but it has no force or operation at all in favor of appellants. Upon what consideration is it founded as to them? Their revocable and unenforceable agreement to submit the matters in controversy to arbitration is certainly not a good or valuable consideration, unless the agreement was carried out. Afterward made, we make no question but what the lien would be gone, but the mere execution of an agreement to do something in the future, and which can not be enforced, ought not to operate to deprive contractors of their lien for work done under the statute.
   Bailey, J.

It is urged that the decree in this case, establishing mechanics’ Hens upon the premises in question, should be reversed on the ground that the contracts under which the petitioners furnished labor and materials were not made with the owners of the land. At the time said contracts were entered into, the legal title to the lot on which the buildings in question were to be erected stood in Lewis A. Brown, said title being held by him in trust for Flora A. Brown. They, being the owners of the premises, entered into a contract with Paulsen, which provided for the erection on said lot of a block of buildings. In erecting said buildings the Browns were to provide the necessary money by mortgaging the Jot, and were to keep said money in their own hands, and to pay it out for labor and materials on architects’ certificates indorsed by Paulsen. Paulsen was to take possession of the lot, make the contracts, see that the labor and materials were provided, have the oversight of the work, and, in general, attend to all business matters incident to the erection of the buildings. When the buildings were completed, the Browns were to deed to Paulsen the west ninety-five feet of the lot for §5,846, and the same with the buildings thereon were to belong to him, subject to the mortgage given to raise the money necessary to defray the cost of the buildings, said purchase money to be paid by erecting and turning over to the Browns a building on the east thirty-five feet of the lot, costing that sum, the Browns to assume only so much of said mortgage as the cost of the building on the east thirty-five feet should exceed said sum of §5,846.

Under this arrangement Paulsen let the contracts for the erection of the buildings in his own name; and the decree can not be sustained only on the theory that he was acting, and was authorized to act, not only for himself, but also on behalf of and as the agent of the Browns. The scheme upon which the buildings were erected was somewhat peculiar, and it is not easy to define the exact legal relations established between the Browns and Paulsen by their contract. But we are unable to see anything in those relations which necessarily excludes the theory that, in entering into the various contracts for labor and materials, though acting in his own name, he was authorized to act, and was in fact acting, not only for himself, but as the agent of the Browns, or, at least, as the agent of Mrs. Brown, the beneficial owner of the lot.

In the agreement executed by Mrs. Brown, Paulsen and the petitioners, submitting the matters in dispute between them to arbitration, admissions are made by Mrs. Brown in a very full and ample manner, that in making all of said contracts, Paulsen acted on her behalf as well as for himself. These admissions are competent evidence tending to establish Paul-sen’s agency, and are, in our opinion, so far as this point is concerned, sufficient to sustain the decree.

Again, it is urged that the petitioners have waived their liens, and that the decree for that reason can not he sustained. The instrument relied upon as a waiver or release names no releasee and expresses no consideration, and we have therefore to look to extrinsic evidence to ascertain both the consideration and the party in whose favor the waiver or release was intended.to be executed. The reason for giving the release was that the agent of the mortgage company declined to pay over §7,000 of the money loaned on said mortgage unless the liens claimed by the mechanics and material men should be so arranged as to leave the mortgage the first lien on the premises. The consideration of the instrument was the consent of the mortgage company to pay over said money so as to make it available for the satisfaction, jpro tanto, of the claims of the mechanics and material men. Hot only did the consideration emanate from the mortgage, company, but the instrument, on being executed, was delivered to said company. The legal conclusion from these circumstances is that the mortgage company and that company alone was the party in whose favor the release was intended to be executed. That seems to us to be as clearly shown as though the name of the mortgage company had been inserted in the instrument as releasee.

The release, being given to the mortgage company, is available for that company alone. It was not executed to Mrs. Brown or to Paulsen, or upon any consideration moving from them. So far as appears they are mere strangers to the instrument, and we know of no pu'inciple upon which they can be permitted to avail themselves of its benefits.

We are of the opinion that the petitioners5 liens were in no way affected by the agreement to submit the differences between the parties to arbitration. Had the submission been followed by an award, the rights of the parties would undoubtedly have been conclusively determined. It is a general rule, however, that any person who is a party to a submission may, at any time before an award made, revoke the authority of the arbitrators; and for this purpose it makes no difference whether the submission is by deed or by parol. Morse on Arbitration, 230, and authorities cited. Such revocation may be express or it may be implied; and the institution of a suit by one party against another, after the submission has been entered into and before the award has been made, the cause of action being the subject-matter of the arbitration, will operate to revoke, by implication, the agreement to arbitrate. Peter’s Administrator v. Craig, 6 Dana, 307; Morse on Arbitration, 236.

The institution by the petitioners of the present suit was, in law, a revocation of the agreement to arbitrate, and after such revocation, the rights of the parties were no longer subject to or affected by the agreement.

We are of the opinion that none of the errors assigned by the appellants should be sustained, and the decree will therefore be affirmed.

Decree affirmed.


author: Moran, P. J.

text:
    Newton P. Holden v. Charles C. P. Holden et al.

      Equity Jurisdiction—Real Property—Bill to Quiet Title—Possession-Contract of Sale—Whether a Mortgage—Default—Demurrer to Bill—Motion—Prayer—Wrong Relief—General Relief.

    1. The general rule that a court of equity has no jurisdiction to quiet title or remove a cloud upon the title to real estate unless the complainant is in possession, or the land is improved or unoccupied, has certain exceptions.
    2. Where the facts stated in the bill show that the legal title claimed by the complainant is not disputed by the defendant in possession, but that such defendant sets up some equity, not affecting the legal right of possession, which operates as a cloud on the legal title and prevents a sale of the property, equity has jurisdiction, there being no adequate remedy at law.
    3. A court of equity has jurisdiction where the defendant is in possession of real estate and in default under a contract for purchase.
    4. Under the general prayer for relief a court of equity may grant the relief appropriate to the facts, although the bill was framed with a view to getting a different relief.
    5. Where there is a prayer for general relief, it is improper to grant a motion, which is in effect a demurrer to the bill, on the ground that the complainant has prayed for wrong relief.
    [Opinion filed December 7, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Henry 1VI. Shepard, Judge, presiding.
    Appellant filed this bill in chancery in the Superior Court of Cook County, as follows:
    Complainant, Newton P. Holden, of Frankfort, Will County, Illinois, represents,
    That on or about March 1, 1881, complainant became the owner in fee simple of the premises in question by virtue of the warranty deed, dated March 1,1881, from Eliza W. Roach to Newton P. Holden. Consideration, $5,500. Conveying the property in dispute in this case. Acknowledged March 3, 1881. Recorded April 13, 1881, book 1074, page 132.

      That said premises consisted, at the date of said conveyance, and still consist, of a lot of land and a brick dwelling house and frame barn, and was in the occupancy of the defendant Holden.
    That an agreement in writing was entered into, by and between complainant and defendant Holden, at or about the time of said conveyance, which is as follows:
    “This agreement, made the first day of March, A. B. 1881, between Hewton P. Holden, of Frankfort Station, Illinois, party of the first part, and Charles C. P. Holden, of Chicago, Illinois, party of the second part, witnesseth as follows:
    “Whereas, Hewton P. Holden, party of the first part, is the owner in fee of the premises known as Ho. 20 Aberdeen St., being the S. 20 ft. of lot 32 in blk. 1 of the C. T. sub. div. of blk. 1, W. and W. of H. E. Sec. 17, T. 39, K. 11, E. of the 3rd P. M., in the City of Chicago; and whereas Charles C. P. Holden, party of the second part, is now occupying and residing in said premises.
    “Howr, therefore, Hewton P. Holden, party of the first part, in consideration of the covenants and agreements made by the party of the second part, and hereinafter mentioned, agrees:
    “1st. Hot to disturb said party of the second part in his possession of said premises for the space of three years from March 1st, A. B. 1881, provided always that the covenants and agreements made by the party of the second part, which are a part of this contract, are kept good.
    “2d. Said party of the first part agrees that if, during the term of this contract, said party of the second part does not default in any of the covenants-here in made by him, said party of the second part, or his assigns, can, at any time during the said three years, have the privilege of purchasing said premises from the party of the first part, upon the payment to him of five thousand five hundred dollars (§5,500); and said.party of the first part agrees to hold said premises three years from March 1st, 1881, provided there is no default in the covenants made herein by the party of the second part.
    “C. C. P. Holden, party of the second part, in consideration of the occupancy of the aforesaid premises, and the right to purchase the same within three years from March 1st, A. D. 1881, subject to the following conditions, covenants and agrees:

      “ 1st. To pay said Newton P. Holden, party of the first part, interest on five thousand five hundred dollars (85,500), at the rate of seven per cent, per annum, payable semi-annually, at the end of each and every six months, from March 1st, A. D. 1881.
    “2d. He, said O. O. P. Holden, party of the second part, further agrees to keep said premises. No. 20 Aberdeen Street, in good repair and insured for at least 83,000 during his possession of the same.
    “5d. Said party of the second part further covenants and agrees to pay all taxes on said premises as the same shall become due, including water taxes.
    “4th. It is understood and agreed by said C. C. P. Holden, party of the second part, that if default shall be made in any of the covenants and agreements by him above- made, then this contract shall become null and void, but not otherwise.
    “Newton P. Holden, [seal.]

      “ Ghables G. P. Holden, [seal.]
    “ Witnessed In/

    “Weight Holden.”
    That said agreement was written in duplicate, one copy being delivered to each of the parties, they having signed the same in execution.
    That defendant Holden neglected and failed to beep and perform the covenants and agreements of said agreement, and made default therein as follows :
    Said defendant Holden has not paid or caused to be paid ■to complainant the sum of 85,500 mentioned in said agreement, nor any part thereof.
    Said defendant Holden has not paid or caused to be paid to complainant the interest on the same, mentioned in said agreement, nor any other part thereof than the amount which accrued and became due for the two years expiring March 1, 1883.
    Said defendant Holden has not kept said premises in good repair—on information and belief.

      Said defendant Holden has not kept said premises, nor any part thereof, insured for at least $3,000; but complainant is informed and believes that said defendant has kept said premises, that is, the improvements thereof, insured in his own name, and with the loss made payable to complainant as a mortgagee. Complainant is informed and believes that such insurance is no sufficient indemnity, because the policies provide that the title of the party insured, if not the absolute fee, should be stated in such policies, or they should be void; and such policies contained no explanation of the condition of such title, but were issued as though the fee simple title was in defendant Holden, and not in complainant, and as though complainant, instead of being the owner in fee, subject to said agreement, was simply the owner of a mortgage thereon. Complainant declined to receive such policies under ¡-aid agreement, and they are in the possession or control of the defendant Holden. That the last of the policies was issued in November, 1884, and on inquiry complainant was informed that up to March 23,1885, the premiums for such policies had not been paid. By a clause in the policies, such state of facts rendered them not valid.
    That defendant Holden has not paid all taxes on said premises as the same became due, including water taxes. Complainant is informed and believes that said premises, or some part thereof, have been sold for unpaid taxes thereon, which should have been paid by defendant Holden.
    That complainant has fully performed the agreement on his part, and has suffered defendant Holden to remain in possession of said premises until the demand and institution of the proceedings for the possession thereof hereinafter mentioned.
    That, complainant was able and willing to sell the premises to the defendant Holden according to the terms of the agreement, during the three years from March 1, 1881, notwithstanding the default aforesaid; but the defendant Holden was either unable or unwilling to buy the same and make payment therefor during said three years, according to the terms of said agreement, and requested that the complainant delay insisting upon the purchase or possession at the expiration of the three years. That on or about March 1, 1884, complainant demanded of said defendant that he comply with the terms of said agreement or surrender the possession to complainant, whereupon defendant Holden ashed a delay until May 1,1884, and complainant did delay in the enforcement of such demand until May 1, 1884. On or about said last named day defendant Holden requested further delay, and from time to time has requested delay after delay, until the matter became unpleasant to both complainant and defendant Holden—to complainant, because his property was fast being used up by defendant Holden, and to defendant Holden, because he either would not or could not do his duty in the premises—until, on March 6, 1885, defendant Holden verbally abused complainant, and refused to talk with him concerning the property; and then complainant caused demand for possession to be served upon defendant Holden.
    That according to information furnished to complainant by defendant Holden, defendant Holden owns the furniture in said premises, and during all the time since the making of said agreement, he. has rented said house and furniture, and has received as rent thereof his own board, and until recently, the board of his adopted daughter, and in addition the rent of $50 per month.
    That if defendant Holden had applied such rent in making the payments required by such contract, no such state of affairs would exist as is now the result from defaults of said defendant.
    Complainant charges that if the representations of defendant Holden as to the revenue derived from the property are true, he has acted wrongfully and in bad faith in making default in the payment of taxes and interest.
    Complainant avers that said premises are now occupied by defendant Hiltabidel and defendant Holden under some arrangement, the terms of which are unknown to complainant, but by virtue of which defendant Hiltabidel pays to defendant Holden a rental of $50 per month, besides his board. That defendant Holden is not pecuniarily responsible, and has no means out of which his liability for the use and occupation of said premises can be realized. That complainant is entitled to the possession. That defendant Holden caused his duplicate of said agreement to be recorded on or about April 13, 1881, and the same is and constitutes a cloud upon complainant’s title to the premises. That defendant Holden claims and asserts that he is owner of said premises, and that complainant is simply a mortgagee, which claim, complainant avers, is untrue and unfounded; but such claim, connected with said recorded agreement, constitute such a cloud upon and embarrassment to complainant’s title, that complainant is thereby greatly damaged in his ownership of said property, and in justice and equity is entitled to the possession, and to be freed from the cloud.
    That on March 7, 1885, complainant caused to be served on defendant Holden a demand in writing for the possession of said premises to which said defendant replied in a contemptible and ungentlemanly manner; and on March 9, 1885, complainant caused to be filed with Daniel Scully, a Justice of the Peace, a complaint in forcible detainer against defendant Holden, for the possession of said premises; that summons was issue 1 and served, and cause came on for trial March 18, 1885. Defendant Holden was present, but declined to appear and defend. Cause was continued to March 19, 1885, at which time, and in the presence of defendant Holden, judgment was rendered in complainant’s favor, and against defendant Holden, for the institution of the premises and costs. That March 23, 1885, defendant Holden filed with the said Justice an appeal bond in $400, and an appeal was perfected to the Circuit Court of Cook County. That the Circuit Court is so crowded with business that said cause can not be reached for trial for one or more years.
    That said appeal is no adequate security. One of the sureties is Gf. M. Sayer, who, as complainant is informed, is a clerk in a wholesale store in the City of Chicago, and who recently married the adopted daughter of defendant Holden. Complainant is informed and believes that it was not claimed at the time of giving the bond that Sayer was sufficient. The other of the sureties is John Bosenberg, who purports to set forth his pecuniary responsibility and his qualifications as such surety in an affidavit on the back of the bond, in which he states that he is the owner of four lots in Ira Brown’s subdivision, in said Cook County, and that they are incumbered not more than §25.
    That as a result of inquiries set on foot by complainant, it is apparent that the title of Bosenberg is not good as a basis of security. That said lots are from one to two miles southwest of Desplaines Station, in a locality where land is worth, as complainant is informed and believes, not to exceed $75 per acre. That said lots are of such size that the twenty acres sub-divided are divided into 200 lots, besides streets and alleys. That said four lots are less than one-half acre in area. That Bosenberg’s title, as appears by the records, is subject to two trust deed liens. The first is recorded in book 912, page 240, and secures $800 and interest at eight per cent, from April 1,1879. The principal matured April 1,1882. Said trust deed conveys all of block 2, consisting of fifty lots, and contains a clause stating that said lots may be released upon the payment of §19 and interest per lot, which makes, without interest, §76 on said four lots. The other of said deeds is recorded in book 912, page 524, and secures $673 and interest at eight per cent., which sum is long past due. This conveys ten lots in said block 2; and if the debt should be apportioned equally, the same is a lien upon said four' lots of $269.20, besides interest.
    That the records show another incumbrance purporting to be a mortgage on lot 5, in said block 2, recorded June 6,1884, from Michael J". Howard, a former owner of said lots, to Christoph Wilberheit; but complainant believes that the same was filed for record after Howard had parted with his title.
    ■ That complainant has caused diligent inquiry to be made cone erning said lots, and is fully convinced that there is no security in the title which Bosenberg appears to have.
    That at the time aforesaid, when complainant acquired the title aforesaid, there was in the possession of the grantor of complainant an abstract of title to said premises, which abstract is part and parcel of the property, and which was held and owned by the grantor with the property. That said abstract is of particular value in connection with, the ownership of the property, because of the destruction of the records of Cook County, October 9, 1871, and said abstract shows the title to such property as it existed prior to such destruction. That said abstract was delivered to complainant with said deed to hitn, and thereafter was in the custody, for complainant, of complainant’s son, Wright Holden, now deceased. That defendant Holden procured said abstract from said Wright Holden, and now refuses to deliver the same to complainant, saying it is locked up in his safe and is going to stay there.
    That said property is not worth to exceed 87,000, and in the event that complainant should be deemed and taken to be simply a mortgagee thereof, the said value is not sufficient to pay the said sum of $5,500 and the interest thereon at seven per cent, from March 1, 1883, and the amount necessary to free the property from liens for taxes which defendant Holden has not paid, and the usual expenses of a sale.
    That actual loss will result to the complainant in any event, if defendants are allowed to remain in possession without making payment to complainant, or to a receiver, of a fair equivalent for the use and occupation.
    Complainant is informed and believes that said premises are worth, as a fair rental, $50 per month.
    Complainant charges that defendant Holden ought to be restrained, by the order and injunction of this court, from collecting or receiving any money or rent for the use and occupation of said premises, or any part thereof, and from using and occupying the [same without paying to complainant, or a receiver, such sum of money monthly as may be a fair sum for such use and occupation.
    Complainant charges that said Anna Ililtabidel ought to be restrained from making payment of any money or rent for the use and occupation of said premises to any other person than the complainant, or a receiver, and from making any payment to defendant Holden, in respect to such use and occupation.
    Prayer for answer, not under oath; that said agreement may be set aside and declared void; that complainant’s title may be declared to be free and clear from any right, title or interest of the said O. 0. P. Holden, and may be decreed to be free and clear of any cloud, claim or demand under and by virtue of said agreement; that the said duplicate thereof in the possession of defendant Holden may be delivered up to be canceled; that complainant may be put in possession of said premises; that defendant Holden may be decreed to pay to complainant what may be found due to complainant from defendant Holden for his use and occupation of said premises; that defendant Holden may be ordered and decreed to deliver the said abstract of title to complainant, or to a receiver; that defendant Holden may be restrained, by order and injunction of this court, from collecting or receiving any money or rent for the use and occupation of said premises, or any part thereof, and from using or occupying the same without paying to complainant or to a receiver, such sum of money, monthly, as may be a fair sum for such use and occupation, to be fixed by the court; that said Anna Hiltabidel may be restrained from making payment of any money or rent for the use and occupation of said premises, or any part thereof, to any other person than complainant or a receiver, and from making any payment to said G. G. P. Holden in respect to such use and occupation; that a receiver may be appointed with authority to take charge of the premises, to rent the same, and collect and receive rent, revenue and income thereof, and to disburse the same under the order and direction of this court, and with authority to keep the buildings insured in his own name as receiver, or otherwise, as may be right and proper, and with authority to free,said property from tax liens, under the direction of the court, and to pay such taxes as may "be due and unpaid, or as may hereafter become due, and with authority to take and receive said abstract of title, and hold the same subject to the order of this court, and for general relief.
    To this bill appellee Holden filed an answer, claiming that the contract set out was in fact a mortgage, and averring that the court had no jurisdiction for the reason that it does not appear by the bill that complainant is in possession of the premises; but.it appears from said bill that defendant is in possession, and occupying the same as his home, and claimed the same benefit as if the bill were demurred to. When the case was reached for hearing, a motion was made to dismiss the bill for want of jurisdiction, and the court sustained the motion and dismissed the bill at complainant’s costs, and such order is assigned for error on this appeal.
    Messrs. Holden & Farson, for appellant.
    The quieting and confirming of the title to real estate is peculiarly a matter of equitable cognizance. Buckmaster v. Ryder, 12 Ill. 207, 214; Martin v. Dryden, 1 Gilm. 187, 210; Kennedy v. Northup, 15 Ill. 148, 154; Frazier v. Miller, 16 Ill. 48; Morris v. Thomas, 17 Ill. 112; Larmon v. Jordan, 56 Ill. 204.
    In examining these cases it must be borne in mind that statutory changes have taken place from time to time, and also that the case at bar is not one of conflicting, independent legal titles.
    Where the relief in chancery is more complete and effectual, it is sustained, even though there is a remedy at law. Shays v. Norton, 48 Ill. 100, 105; Morris v. Thomas, 17 Ill. 112; Frazier v. Miller, 16 Ill. 48; Martin v. Dryden, 1 Gilm. 187.
    Where there is any ground for equitable relief, jurisdiction will be entertained, even though the main questions could be settled at law. Booth v. Wiley, 102 Ill. 84, 114; Mitchell v. Shortt, 113 Ill. 251; McDowell v. McDowell, 114 Ill. 255.
    With the statute and these authorities in view, we claim there is ample jurisdiction, and that the decree of the court below should be reversed. Since the enactment of this statute the complainant is not required to be in possession of the land. Whitney v. Stevens, 97 Ill. 482, 488.
    Messrs. Charles F. White and M. L. Wheeler, for appellees.
    The principal purpose of the bill filed in this case, and the principal matters in respect to which relief was prayed, are matters not cognizable in a court of equity. In the bill aro embraced an action for rent, a suit for possession and an action for the recovery of an abstract; and there can be no doubt that the real purpose of complainant is to obtain, through the aid of a court of equity, possession of the premises in question, and that the matter in reference to the alleged cloud upon the title is merely thrown in to give the court apparent jurisdiction.
    For the purpose of obtaining possession a suit had already been instituted before a Justice of the Peace, and a judgment rendered in favor of complainant, which was and is still pending on appeal in the Circuit Court; so that in this respect, the court of chancery was called upon to hear and determine a matter of which it not only had no jurisdiction from its very nature, but which was already in process of adjustment through the pendency of another suit in a court of law.
    A complainant, out of possession of premises of which he is the legal owner, can not maintain a bill in chancery against one in possession simply and solely to remove a cloud upon the title.
    “ There are only two cases under our law in which a party may file a bill to quiet title, or to remove a cloud from the title to real property. First, when he is in possession of the lands; and second, when he claims to be the owner, and the lands in controversy are unimproved and unoccupied; then under the statute he may file such a bill.” See also, Oakley v. Hurlbut, 100 Ill. 204; Gage v. Griffin, 103 Ill. 41; Gage v. Parker, 103 Ill. 528; Gould v. Sternberg, 105 Ill. 488; Whitney v. Stevens, 97 Ill. 482, 488; Mitchell v. Shortt, 113 Ill. 251.
   Moran, P. J.

The question, is whether, under the facts stated in the' bill, a case is made for equitable cognizance. It is contended that a court of equity has no jurisdiction to quiet title or remove a cloud upon the title to real estate, unless the complainant is.in possession, or the land is unimproved or unoccupied. Such is no doubt the general rule, but there are well recognized exceptions.

Where a complainant is seeking to remove a cloud which is in the nature of a legal title, which is being or may be asserted adversely to the title which he desires to protect, then he must show that he is in possession and therefore can not bring ejectment, or must allege and prove that the real estate whose title is clouded, is vacant or unimproved and unoccupied land. But when the facts stated in the bill show that the legal title claimed by the complainant is not disputed by the defendant in possession, but that such defendant sets up some equity not affecting the legal right of possession, but which operates as a cloud on the legal title and prevents a sale of the property, or renders the title unmarketable, then equity has jurisdiction, because an action at law would not afford an adequate remedy, and in such case the possession by the defendant, in subordination to complainant’s legal title, will not defeat the jurisdiction.

Taking the facts as alleged in the bill as true, it is very plain that complainant could maintain forcible detainer or ejectment upon the contract, and that defendant could not set up in such suit at law in bar of plaintiff’s right of possession, that the contract in fact constituted a mortgage. But a judgment at law would not silence defendant’s claim that the contract was but a security for money and that he had a right of redemption, and thus after a successful action at law defendant’s claim of an equitable right in the land would be as complete' a cloud upon complainant’s title as it is now with defendant in possession.

The chancery court has jurisdiction in such a case under the ancient head of equity, that the action at law furnished no adequate remedy, and such jurisdiction has been sustained by the Supreme Court in a case not distinguishable in principle from this case. Shays v. Norton, 48 Ill. 100.

And in cases where there is fraud as a ground of equitable jurisdiction, and removing the fraudulent instrument as a cloud is incidental to the general relief, even though the fraudulent title is in its nature a legal title, and the holder of such title is in possession, a court of chancery will have jurisdiction to remove the cloud. Booth v. Wiley, 102 Ill. 84.

It is well settled that when equity has jurisdiction for one purpose, it will go on and do complete justice between the parties, and will not send them to a court of law because part of the relief may be purely legal relief. So here the court would be authorized to put complainant in possession if upon a hearing he maintained the allegation of his bill as to the nature of the contract. Green v. Spring, 43 Ill. 280.

But there is also another ground of plain chancery jurisdiction. The contract set out is claimed by complainant in his bill to be, and on its face is, a'contract for the sale of real estate, and defendant is shown to be in possession under the contract, and to be in default.

In such case the vendor may go in the first instance into a court of equity, and call on the purchaser to come forward and pay the money due, or be forever thereafter foreclosed from setting up any claim against the land; and under some circumstances such is his only safe remedy. Hansbrough v. Peck, 5 Wall. 497; Derickson v. Chicago South Branch Dock Co., 18 Ill. App. 531.

It is true complainant has specially prayed for entirely different relief, but it is for the court to determine from the material allegations of the bill and the proofs on the hearing, what relief he is entitled to, and to decree him the appropriate relief and thus terminate the suit, unless, to avoid taking the relief which he is found by the court to be entitled to, he voluntarily dismisses his bill.

There was in this bill the prayer for general relief, as follows: “That your orator may have such other and further relief in the premises as equity may require, and this court may deem just.” Under this general prayer the court could grant the relief appropriate to the facts, although the bill was not framed with a view to getting such relief. If the facts stated entitled the complainant to a certain relief, it matters not that such statement of facts may have been made with the purpose and belief, on the part of the solicitor who drafted the bill, that the relief sought might flow from a different source of equitable jurisdiction. McNairy v. Eastland, 10 Yerg. 309; Vansant v. Alimon, 23 Ill. 30.

The dismissing of the bill in this case on motion was, in effect, sustaining a demurrer to the bill, and a demurrer can not- be sustained on 'the ground that a party has prayed for the wrong relief where there is also a prayer for general relief, because at the hearing the complainant may ask at the bar for the proper specific relief. Wilkinson v. Beal, 4 Mod. 408; Hopkins v. Snedaker, 71 Ill. 449; Curyea v. Berry, 84 Ill. 600; Stanley v. Valentine, 79 Ill. 544; Wescott v. Wicks, 72 Ill, 524; Crane v. Hutchinson, 3 Ill. App. 30.

There was error, therefore, in dismissing the bill on the motion of the defendant for want of equity, or for want of jurisdiction, and the decree must therefore he reversed and the case remanded.

Reversed and remanded.


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    E. J. Wilber et al. v. Tjestolf Torgerson.

      life Insurance—Bill to wind up Mutual Benefit Association—Cross-Bill—Application of Reserve Fund—Trust Purpose—Advances of Directors—Jurisdietion.

    Upon a bill filed to wind up a mutual benefit association and distribute its assets, and a cross-bill claiming said assets on a death claim against the association, it is held: That the fund was a trust fund for the payment of mortuary benefits; that, as there was a trust purpose to which it could be applied, the directors could not apply such fund to the payment of advances made by themselves to discharge a prior death claim for which they might have made an assessment; that their advances made them only ordinary creditors; that the claim of the eross-complainant was not premature, the bill being to wind up the corporation; and that the court below had full jurisdiction of the entire subject-matter.
    [Opinion filed December 7, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.
    Messrs. Seth F. Crews and Wilber, Eldridge & Smith, for appellants.

      Messrs. Blum & Blum, for appellee.
   Moran, P. J.

Appellants were directors of the Douglass Life Association, a corporation organized under the act of the Legislature providing for the organization and management of corporations, for the purpose of furnishing benefits on the assessment plan to the representatives of the deceased members, in force July 1, 1883. The directors made a faithful effort to build up the association, and advanced their own means in the payment of death claims and for expenses of the association, but finally recommended the re-insurance of the members in another association, i. e.3 the Mutual Life Association, and a bill was filed by the corporation and the directors to wind up the Douglass Life Association.

Halvordine Torgerson was a member of the last named association, and subsequently to the filing of said bill to wind up the association she died, and appellee, her husband, filed a cross-bill in the said suit, alleging the membership of his said wife in the association, that she was unable to re-insure in the Mutual Life Association because at the time she received notice of the action of the directors she was sick of a disease from which she afterward died, and claiming there was due from the association eighty percent, of the amount which could be collected from the certificates in force, not to exceed §1,000, and alleging that the association had but little assets and was about to make an assessment upon the certificate holders to pay two other death claims, and would make no provision to pay appellee, and praying for an order directing an assessment to pay his claim.

Afterwards appellee amended his cross-bill by alleging that all other claims except his had been paid, and all other certificates except his had been surrendered, and that there remained in the reserve fund of said association, §460.20, which was held by the association as a trust fund for the payment of his claim, and asking that said money be decreed to him. This cross-bill was answered by appellants and the case came on for hearing upon a stipulation as to the factsj from which it appears that the association had paid in all, during its existence, five death claims; that from an assessment made to pay the death claim of one Rankin there resulted an excess of §298.13, and said excess, together with §1,058.51, which latter sum was advanced by the directors from their own money, was paid to settle the death claim of one Pierce.

That said sum of §1,058.51 was advanced by the directors from their own money in order to avoid making an assessment for the said Pierce death claim at that time.

That when the resolution was passed to wind up the corporation there was in the reserve fund the sum of §518.68, and that said sum was applied.in payment to the directors upon the amount which they had advanced to the death fund, and that there was still due the directors something over §500. It further appears that said Halvordine Torgerson, deceased, paid all assessments that were imposed by said corporation after the issue to her of her certificate. The certificate issued to her provided, among other things, that within sixty days after the receipt of evidence by the association, of her death, there should be payable to her husband, if living, eighty per cent, of the amount produced by one assessment and not to exceed §1,000, payable from the death fund of the association. And no claim should be otherwise due or payable except from the reserve fund as hereinafter provided. It further provided that twenty per cent, of the receipts from assessments shall be securely invested in United States, State, county, city or other first class convertible bonds or stock, and such funds when so set apart shall belong to said association, and shall be used only for mortuary benefits without assessments, and to protect the non-forfeitable feature of the association. The court found that appellee’s was the only outstanding claim against the association on account of death' loss, and that there was in the hands of the directors §518.68, belonging to the reserve fund, and which was realized from assessments for death losses, and decreed the defendants to pay said sum to appellee.

We think this action of the court was correct. It was the duty of the directors to make an assessment upon the members to pay the death claim of Pierce, and if, instead of doing bo, they saw fit to advance their own money to discharge said claim, they did not'thereby gain a right to appropriate the reserve fund, in payment to themselves of such advance, so long as there was any certificate holder who had the right to have such reserve fund paid out to him as a mortuary benefit.

By force of the statute, Sec. 129, Chap. 73, Starr & C. Ill. Stat., and under the terms of the certificates which the association issued, such reserve fund was a trust fund to be used only for mortuary benefits, without assessments, or applied otherwise for the promotion of the object for which, by the by-laws, it was set apart. The advance of the directors made them only ordinary creditors and the trust fund could not be used to pay such debts, if there were trust purposes to which it could be applied. Ho doubt the act of the directors in advancing the money was in good faith, and done for what they regarded as the best interest of the association, but the good faith of their act in advancing the money did not take them out of the class of ordinary creditors. The members of those holding death claims have the first right to be paid out of the reserve fund when the association is not in a condition to pay their claims by a regular assessment.

The objection that appellee’s claim was premature, as the association would have sixty days after notice of death to pay it, is not in our opinion sustainable. The filing of a bill to wind up the corporation, is an invitation to all persons to present their claims against it, and claims not due at law will be accelerated so as to share in the assets under such circumstances.

It would be flagrantly unjust for the court to proceed to wind up a corporation and distribute its assets, part of which are trust funds, and leave a just claim entitled to have such funds appropriated to its discharge, unpaid, because if the association was continuing in business, it could not be sued thereon at law till after the lapse of a given number of days.

The original bill was filed to wind up the association and distribute its assets, and appellee had an interest m the subject-matter of the proceeding and filed his cross-bill for a proper purpose, to wit, to prevent the misappropriation of a trust fund. The court had full jurisdiction of the whole matter and a right to do complete justice by ordering the fund paid to appellee.

The decree of the Superior Court must be affirmed.

Decree affirmed.


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    Levi Z. Leiter v. Marshall Field.

      Practice—Cause Remanded, by Supreme Court—Further Proceedings— Amendment to Bill—Tenant as New Party—Distinct Cause of Action.

    1. Where the Supreme Court has disposed of every question between the parties to the record which was presented thereby, and has remanded the cause for further proceedings, the Circuit Court has nothing to do but to enter the decree directed by the Supreme Court. It can not allow an amendment to the bill, which presents no new question as between the parties to the record.
    2. A complainant can not be compelled to add parties to his bill if he chooses to take the responsibility of their not being made parties.
    3. In the case, presented, it is held: That the decision of the Supreme Court having settled every question between the parties to the record, the complainant can not amend by making his tenant a party complainant, nor can he require the cross-complainant to make said tenant a party defendant to his cross-bill; and that the injury, if any, to the leasehold estate of the tenant, is distinct from that to the reversionary interest, and constitutes a distinct cause of action.
    [Opinion filed December 7, 1887.]
    Appeal from the Circuit Court of Cook County; the Hon. Cyrus Epler, Judge, presiding.
    Messrs. Isham, Lincoln & Beale, for appellant.
    Messrs. Melville W. Fuller and Williams & Thompson, for appellee.
   Moran, P. J.

Appellant filed his bill in the Circuit Court of Cook County, alleging that appellee had entered upon his premises and excavated the earth to a great depth, and erected on said premises a stone wall of great thickness, and that he claimed the right and threatened to further encroach on and invade appellant’s premises, and praying an injunction to prevent such threatened encroachment.

Appellee answered the bill and filed a cross-bill which prayed that complainant be enjoined from interfering with the construction of said wall, or with the wall when constructed, and from prosecuting a certain ejectment suit relating to the premises which appellant had commenced.

On the hearing the Circuit Court granted the relief prayed by the complainant and dismissed the cross-bill, and the decree of the Circuit Court was affirmed by this court, and to the report of the case in 18 Ill. App. 155, reference is made for a full statement of the pleadings and matter in controversy, as it is not deemed necessary to state the same here at length.

The case was appealed to the Supreme Court, and by that court the judgment of this court and of the Circuit Court was reversed and relief ordered to apjjellee upon his cross-bill. Field v. Leiter, 118 Ill. 17.

The mandate of the Supreme Court remanded the cause to the Circuit Court of Cook County “for such other and further proceedings as to law and justice shall appertain, conforming to the opinion of this court herein filed.”

The case was regularly re-docketed in the Circuit Court, and thereupon appellant moved the court for leave to amend the bill of complaint, so as to bring in as a party complainant, with proper allegations showing interest, the Chicago Board of Underwriters, a corporation who were in possession and occupancy of the premises in controversy under a lease, which was executed prior to the making of the contract which was construed by the Supreme Court to entitle appellee to enter upon the premises and erect the foundation and wall complained of in the original bill.

A motion was also made by appellant that appellee be required to amend his cross-bill so as to make the said Chicago Board of Underwriters a party defendant to said cross-bill, and that the cause stand over until such amendment be made, but the court entered a decree overruling both said motions and dismissing the original bill for want of equity, and granting the relief prayed by the cross-bill of appellee. It is now urged by appellant that the court erred in denying the leave to amend complainant’s bill and in not requiring appellee to amend his cross-bill, and it is contended that the assertion by appellee of the right given to him by the decree entered upon the cross-bill necessarily involves an invasion of the previously acquired rights of appellant’s tenants in the premises.

We are of opinion that all the rights of the parties to the record could be and were settled on the original pleadings by the judgment of the Supreme Court.

The entire controversy presented was determined, and the opinion of the Supreme Court declared the merits to be against appellant, and closed thus: “ The original bill should have been dismissed, and the relief which it is indicated in the opinion defendant is entitled to, should have been decreed to him on this cross-bill. The judgment of the Appellate and Circuit Courts will be reversed and the cause remanded to the Circuit Court for further proceedings conforming to this opinion.”

This was an end of the matter as between appellant and appellee, and the Circuit Court had no power to permit any amendment to the bill by appellant which would re-state his case in any new aspect, or present any feature affecting his equity which he might have stated, but failed to state in his original bill. In the original bill the fact of the tenancy was stated, and so far as the existence of the tenancy modified the rights of appellant or appellee, the Supreme Court must be held to have regarded that fact as well as all others in the record.

The offered amendment would present no new question as between appellant and appellee, and as every question between them presented by the record was disposed of, there was nothing for the Circuit Court to do but to enter the decree as directed by the Supreme Court. Wadbams v. Gay, 83 Ill. 250; Newberry v. Blatchford, 106 Ill. 584.

The equity sought to be asserted by the amendment to the bill is the equity, not of appellant, but of his tenant; but the decree entered can not affect the rights of the tenant, for no one not made a party and not a privy to the suit will be bound by the judgment or decree rendered therein. It may be if the tenant applied to the court and asked to become a party that he would be so admitted, but his equities, if any he has, are to be asserted by himself and not by appellant.

The objection for want of parties defendant to cross-bill is not well taken. A complainant can not be compelled to add parties to his bill if he chooses to take the responsibility of their not being made parties. Searles v. Jacksonville R. R. Co., 2 Woods’ C. C. 621.

The rights of the tenant are not such as must be ascertained and settled before the rights of the parties before the court could be determined. The injury, if any, to the leasehold estate of the tenant, is distinct from that to the reversionary interest of appellant, and constitutes a distinct cause of action.

The course pursued by the Circuit Court, in overruling the motions to amend the bill and cross-bill and granting the relief upon the cross-bill indicated in the opinion of the Supreme Court, was free from error, and the decree will? therefore, be affirmed.

Decree affirmed.


author: McAllister, J.

text:
    William Stein et al. v. Ira H. Abell.

      Trust Deeds—Foreclosure—Extension—Election to Declare Principal Due—Evidence.

    Upon a bill to foreclose a trust deed this court affirms the decree of the court below for the complainant, the defense that the notes secured were extended without a reservation of the right to declare the whole principal due for default, not being sustained by the evidence.

      [Opinion filed December 7, 1887.]
    Appeal from the Superior Court of Cook County; the Hon. Hehry M. Shepard, Judge, presiding.
    Mr. Ira W. Buell, for appellants.
    Mr. R. A. Childs, for appellee.
   McAllister, J.

This was a bill in chancery, brought January 26, 1886, by appellee against appellant Stein and others, to foreclose a trust deed of certain real estate therein described, made July 1, 1882, by said Stein to one Chase, as trustee, to secure the payment of a promissory note of that date, made by said Stein to Ruth G. Abell, whereby the former promised to pay the latter the sum of §1,200, three years after date, with interest at the rate of six per cent, per annum, payable semi-annually on the first days of January and July, until principal and interest were paid. The trust deed, which was set out in the bill, contained the usual covenants as to taxes, and the provision giving the said payee or any holder of said note the right to declare the whole indebtedness due in case of default in paying any taxes, said .interest or principal, or any part thereof, when due. The bill alleges that said Ruth assigned said note to appellee before maturity, and default in Stein, praying for a foreclosure, etc. The defense relied upon by Stein was that when the note matured, the appellee, as holder of said note, for a valuable consideration, orally agreed with said Stein to extend the time of payment of said note for the period of three years, which had not expired at the commencement of this suit; that this was a new agreement which failed to reserve the rights of appellee under said trust deed, and the provision as to the right of election to declare the whole principal due for default in paying any installment of interest; and that, although Stein had since suuh new agreement made default as to payment of interest according to the terms of the note and trust deed, still the principal could not be declared due before the time of such extension expired. Issue having been taken upon the answer, the case was referred to a master to take proofs and report his conclusions. The evidence was taken before the master, and his report of the same and conclusions therefrom were made. Upon which a decree passed, finding the whole sum due for principal and interest, and, directing a sale and foreclosure; from that decree this appeal was taken. The record contains no bill of exceptions or certificate of evidence.

We have carefully examined the evidence taken before and reported by the master, and are of opinion that it preponderates against the defense relied upon, and in support of the decree, which should be affirmed.

Affirmed.


text:
    The Chicago, Burlington & Quincy Railroad Company v. Louis Morkenstein, by next friend, etc.

      Personal Injuries—Pleading—Declaration—Variance—•Instructions.

    1. In an action for a personal injury, if the plaintiff needlessly describes the tort and the means by which it is effected, with minuteness and particularity, and the proof substantially varies from the statement contained in the declaration, the variance will be fatal.
    2. In the case presented, it is held: That the evidence fails to support the allegations of the declaration; that it shows the plaintiff to have been a trespasser in the yard of the defendant; and that an instruction, submitting to the jury a cause of action substantially variant from that described in the declaration, and a question of wilful tort, having no basis in the evidence, was erroneous.
    [Opinion filed December 7, 1887.]
    Appeal from the Circuit Court of Cook County; the Hon. John G-. Rogers, Judge, presiding.
    This was an action by appellee against the railroad corporation, appellant, to recover for a personal injury to the former, occurring November 29, 1882, in the City of Chicago, whereby he lost one of his arms. The declaration contains three counts: 11 That the plaintiff, at the time, was lawfully upon a public highway of said city, which was crossed there by tracks of defendant’s railway, and the latter ran its locomotive engine across said, highway without ringing a bell or sounding a whistle as.required by statute, and plaintiff was unavoidably struck thereby and injured; 2. That plaintiff was lawfully upon said public highway and was struck by defendant’s locomotive and train, being run across the same at a rate of speed faster than that prescribed by any ordinance of said city; 3. That plaintiff was lawfully upon a public highway of said city which was crossed by defendant’s tracks, and it had no flagman at-such crossing as required by an ordinance of said city, by means whereof he was struck by a train of defendant passing said crossing.
    The plea was the general issue. It appeared on the trial that the place where the plaintiff was at the time of the injury, was in the yard of defendant, lying between Harrison and Polk streets, and that there was no public highway there.
    The testimony of and on behalf of plaintiff tended to show that between the hours of 12 and 1 o’clock, in the middle of the day in question, the plaintiff, who was then a boy eight years of age, in company with a brother thirteen years of age, without either of them having any purpose of business with defendant, went eastward from Ganal Street down a driveway into said yard, and while the plaintiff was standing momentarily near to the west side of the track of defendant, running in. a north and northwesterly direction, a train of empty freight cars came from the south, being backed, with the locomotive at the south end of the train, and moving noiselessly toward the freight house that was about, as they said, some fifteen feet north of where they were standing on said driveway; that while plaintiff was so standing, his brother was also standing upon said track north of him and some five feet away; that hearing no signal and being unaware of the approach of said train the corner of the foremost car struck him against the shoulder, knocked him down upon his belly, bruising his head, and his right arm went over the rail, was run over, and crashed so as to require amputation; that his brother to save himself seized hold of the ladder on the car and was carried to opposite the platform of the freight house, when he threw ■ himself off in safety on the platform. And the evidence is all one-way, that the plaintiff was found and picked up near a waterspout of the freight house, which defendant showed was sixty-eight feet north of said driveway. There was a strong preponderance of evidence to the effect that both the boys were hanging on the cars, the plaintiff as well as his brother, before they reached the freight house, and that plaintiff fell off by the water-spout where he was found and picked up. Neither of the boys could give any account as to the plaintiff’s getting to that place, if struck, knocked down and his arm run over, at the place where they said it happened on the driveway.
    The evidence for the defendant showed conclusively that said driveway was defendant’s own property; that it was in no sense a public highway, though there was evidence tending to show a license on the part of defendant to the public to use it.
    The plaintiff gave no evidence at all tending to show that said train was running at' any undue rate of speed, but defendant proved that it was running at the rate of only three or four miles an hour. The two boys testified that they heard no bell ring; but the defendant showed that there were twenty-nine freight cars in the train; that the engine was 600 feet away from the foremost car as they were backing; that there was a steam apparatus for ringing the bell, and evidence tending to show that it was ringing at the time. There was no evidence tending to show that any person connected with the train saw either of the boys, or knew of their presence there; but three persons connected with the freight house testified to seeing the plaintiff hanging on a train. There was ,no evidence tending to show .any wilfulness or wantonness on the part of any of defendant’s agents or servants.
    The court on behalf of plaintiff, gave the jury the following instruction:
    “ 4. The jury are instructed that, although they may believe from the evidence that plaintiff was improperly or unlawfully upon the defendant’s railroad track, that fact alone did not discharge the railroad company or its employes from the observance of reasonable care, and if you believe from the evidence that plaintiff was injured by the defendant’s train while so improperly or unlawfully on said tracks, but that the injury complained of was wilful and the direct and natural result of the negligence of defendant or its employes, as charged in the declaration, then you must find for the plaintiff unless you believe from the evidence that the plaintiff himself was exercising a less degree of care as could be expected of him under the circumstances proven in this case.”
    The jury returned a verdict for plaintiff, assessing his damages at 83,000, and the court, overruling defendant’s motion for a new trial, gave judgment upon the verdict. Hence this appeal.
    Messrs. Dexter, Herrick & Allen, for appellant.
    Messrs. M. Salomon and Sigmund Zeisler, for appellee.
   McAllister, J.

In describing the tort complained of and the means by which it was effected, the plaintiff has alleged in each of the several counts of his declaration, that while he was upon the public highway of the City of Chicago and in the exercise of the legal, common right to be and travel thereon, he was necessarily and unavoidably run against, etc., by defendant’s locomotive and train.

The rule is that where the pleader, though needlessly, describes the tort and the means by which it is effected, with minuteness and particularity, and the proof substantially varies from the statement, there will be a fatal variance and the plaintiff will fail in his action. Moss v Johnson, 22 Ill. 633; City of Bloomington v. Goodrich, 88 Ill. 558; L. S. & M. S. R’y v. Beam, 11 Ill. App. 215.

The plaintiff’s evidence not only failed to support the allegations respecting such public highway but the affirmative evidence on the part of defendant clearly established the fact that there was no public highway at the place where the plaintiff received his injury; but that he was, at the time, in the defendant’s yard, its private property, upon no purpose of business with the defendant, and therefore a trespasser. From this view it is apparent that the fourth instruction, given on behalf of the plaintiff, was erroneous, because it submitted to and authorized the jury to find for the plaintiff upon a cause of action substantially variant from that described in either count of his declaration. Not only that, but it submitted to the jury the question of a wilful tort on the part of defendant, its agents and servants, when there was no evidence sufficient to go to the jury upon that question. For that error the judgment must be reversed and the cause remanded.

Judgment revei'sed.-


author: Per Curiam.

text:
    Carl Thor et al. v. Ole Oleson et al.

      Husband and Wife—Real Property—Secret Trust—Equitable Estoppel —Evidence.

    Upon a bill filed by creditors of the estate of defendant's deceased wife to subject certain real estate, standing of record in his name, to the payment of their claims, it is held: That the complainants have failed to show that the property in question was purchased with the-wife’s money, or to make out an equitable estoppel; and that the evidence sustains the decree of the court below for the defendant.
    [Opinion filed December 7, 1887.]
    Appeal from the Circuit Court of Cook County; the Hon. Murray F. Tuley, Judge, presiding.
    Messrs. I. K. Boyesen and Jonn Lyle King, for appellants.
    Messrs. Frank J. Crawford and B. F. Richolson, for appelles.
   Per Curiam.

The bill in this case, which was dismissed on hearing by the Circuit Court, was tiled by appellants, who were creditors of the estate of Mrs. Martine Oleson, to subject certain real estate which stands of record in the name of Ole Ole-son, the surviving husband of Martine Oleson, to the payment of appellants’ claims against her estate, on the ground, as alleged, that though the land was deeded, when purchased, to said Ole Oleson and has always stood in his name, yet it was purchased with the money of said Martine Oleson, and the title taken and held by said Ole Oleson in secret trust for her. The bill also goes upon the further theory that if the property was in fact purchased with the money of Ole Oleson, yet he allowed said Martine to treat it and deal with it in her lifetime as her own property; that she made the leases to the tenants and collected the rents, and made improvements and repairs upon the property and by her apparent ownership of it established a reputation for wealth which enabled her to have credit and to incur the indebtedness which she owed to the different appellants. The evidence on all the various issues of fact arising upon the hearing is very voluminous and very conflicting, and we think it would subserve no useful purpose for us to enter into an elaborate discussion of it. It was incumbent on the complainant to make out by the evidence such facts as would sustain either the one or the other of the theories advanced by the bill, and after a careful examination of the evidence contained in the record, and full consideration of the elaborate and able argument of the counsel for appellants, we are not able to say that the court below erred in the conclusion reached.

We are of opinion that complainants have not made out that the property in question was purchased with the money of said Martine Oleson, deceased, by any such preponderance of the evidence as would justify this court in reversing the finding of the chancellor who heard the case in the court below, and found that issue against the complainants.

On the question whether the appellee allowed his wife to so deal with the property as to hold her out as the apparent owner of it and estop him from denying, as against her creditors, that she was the owner of it in fact, the ease presents some singular and unusual phases, and the proof establishes several elements that go to support complainants’ theory. But in our opinion there are elements necessary to make out an equitable estoppel as against appellee, that are wholly wanting.

There is no evidence showing any fraudulent misrepresentations as to the title by appellee, to induce appellants to give credit to his wife upon it. His submission to the dictation and control of a termagant wife was for the sake of his own peace and not for the purpose of representing her as the owner of land.

His title was of record, and complainants neither examined the record nor inquired of him as to the ownership. He did no act to conceal the truth from them and they were themselves negligent in not learning what the record would show them. His silence under the circumstances disclosed is not to be punished by the application to him of the doctrine of equitable estoppel.

We are of opinion that the decree of the court below was right under the facts shown by the evidence, and the same will therefore be affirmed.

Decree affirmed.