text:
    Illinois Joint Stock Land Bank of Monticello, Appellee, v. Jonah W. Conard et al., Appellants.
    Gen. No. 8,999.

      Opinion filed January 15, 1937.
    N. E. Hutson, of Monticello, for appellants.
    Robert P. Shonkwiler, of Monticello, for appellee.
   Mr. Justice Riess

delivered the opinion of the court.

This is an appeal from a decree of the circuit court of Piatt county, approving the master in chancery’s report of sale in a foreclosure proceeding. The only issue involved is the question whether the court erred in approving the report of sale of the master in chancery, and in overruling the appellant’s objections thereto.

Appellee, plaintiff below, filed its suit to foreclose a first mortgage of $36,000 on 360 acres of land in Piatt county, Illinois. There were also two subsequent mortgages and a judgment lien against the land of appellants. A decree of foreclosure and sale of the land was entered on the fourth day of March, 1933. The land was advertised for sale on the 26th day of October, 1935, in pursuance of the terms of said decree.

Subsequent to the entry of the decree of foreclosure and before said sale was had, the defendant, Iva Louise Shonkwiler, who had obtained a major interest in the fee simple title to the land in question, filed her petition in the United States Court, Eastern District of Illinois, for benefits under Section 75 of the Bankruptcy Act, and procured an injunction restraining the sale so advertised, which injunction was modified on the 22nd day of October, 1935, directing that the foreclosure sale in the circuit court proceed, but restraining the master in chancery from issuing any certificate of purchase until the further order of the federal court, and restraining the circuit court from approving or confirming said sale until further order of said court.

Plaintiff purchased the land at the foreclosure sale for $38,000 on October 26, 1935. On the 7th day of December, 1935, the federal court further modified its restraining order and held that it had no power and authority to extend the period of redemption provided by the law of the State of Illinois, and directed the foreclosure suit to proceed, but retained jurisdiction of the property for the period of the equity of redemption, and directed the plaintiff, who was entitled to said certificate of purchase, not to sell or assign the same.

Defendants Iva Louis Shonkwiler and Jonah W. Conard, her brother, joined in filing unverified objections to the master’s report of sale, in which they stated that the land in question was reasonably worth $50,000; that they had in mind bidders who would pay more than the amount bid on the certificate of the plaintiff; that the proceedings in the federal court, which were being carried on by Iva Louise Shonkwiler, a co-owner of the equity of redemption, had “chilled the bidding”; that under the present state of the record, the purchaser could receive the certificate of purchase and that the objectors believe that a fair, free and open sale could now be held.

On January 10,1936, the circuit court of Piatt county, after a hearing, set aside the sale and directed the master in chancery to resell the lands at his earliest opportunity.

The master in chancery immediately advertised the resale of the premises for February 7, 1936. Defendant Iva Louise Shonkwiler, objector at the previous sale, then again filed her petition in the United States District Court, Eastern District of Illinois, to enjoin the second sale. The federal court thereupon denied this petition on its own motion and entered an order directing the mortgage sale to proceed, but restraining the master in chancery from filing a report of sale, or issuing a certificate of purchase to the purchaser at said sale, until the further order of the federal court. At the resale, plaintiff bid $38,600 and a deficiency judgment for $6,837.24 was later entered against the defendants. Following this sale on the 7th day of February, 1936, and prior to the session of the circuit court of Piatt county, held on the 8th day of February, 1936, the said federal court again modified its decree and directed the master in chancery to file his report of sale in the circuit court of Piatt county, and to proceed with the issuance of a certificate of purchase, to the purchaser at said sale, but directed the plaintiff in the suit below, owner of said certificate of purchase, not to assign said certificate during the pendency of the federal court proceeding.

Said defendants then objected to the second sale on substantially the same ground upon which they had objected to the first sale, except that their objections were verified. The objections were overruled by the court; the court stating that the resale had been held at the instance and request of said defendants, and the master in chancery made distribution of the proceeds of the sale which was approved without objection by any of the defendants.

In the objections filed to the first sale, the same objectors stated “that under the present state of record, the purchaser could receive the certificate of purchase, and objectors believe that a fair, free and open sale could now be held. ’ ’

When the resale was ordered by the circuit court, pursuant to the request of the objectors, the objecting defendant promptly sought to enjoin the second sale, and to again create the same condition which they had objected to at the prior sale.

The chancellor has a broad discretion in the matter of approving or disapproving a master’s sale, and such discretion, unless abused, will not be interfered with by a court'of review. Worden v. Rayburn, 313 Ill. 495; Reeve Illinois Mortgages, Vol. 2, par. 703; Clegg v. Christensen, 346 Ill. 314.

Mere inadequacy of price realized at a judicial sale is not sufficient ground for setting the sale aside, unless so gross as to raise a presumption of fraud, or unless, in addition, there are serious irregularities in the mode of sale. Reeve Illinois Mortgages, Vol. 2, par. 707; Wilson v. Ford, 190 Ill. 614.

Generally speaking, one who seeks to have a judicial sale disapproved for inadequacy of price should guarantee an advanced bid in case of a resale or give security that there will be no loss. Schulz v. Hasse, 227 Ill. 156. The appellants in their objections to the approval of the sale state that the real estate is reasonably worth the sum of $50,000, but was bid in at the master’s sale for $38,600; that the objectors were acquainted with one or more responsible persons who, in the course of these proceedings, have been ready, able and willing to bid more than $38,600 on said real estate, who did not attend said sale and bid, and objectors believe that such failure was at least partially, if not entirely, because they could not be certain of their legal position, if they were the successful bidders. There is no showing here that any person was able or willing to bid more than $38,600 on the property sold, nor any facts tending to show that the said bid was inadequate. The decree of foreclosure was entered by the circuit court of Piatt county on March 4,1933. The decree found that the real estate described in the complaint was scant and meagre security for the amount of the mortgage debt, and consequently a receiver was appointed to collect the rents, issues and profits accruing pendente lite from the real estate. The finding of the circuit court as to the value of the real estate cannot be overcome by the verified objections filed by the objectors. The master in chancery proceeded in strict compliance with the decree of foreclosure. There was no act of the complainant or of the master in chancery which could in any way affect the sale. Nor do appellants give any assurance to the court, or make any guarantee that a resale would bring more money, which is a condition precedent to a resale where inadequacy of price is alleged. Osmond v. Evans, 269 Ill. 278.

The first sale was set aside by the court at the instance of appellants, under the assurance that a fair, free and open sale could then be held, yet when the resale was ordered, the appellant objector promptly sought and created the same condition that had been created at the time of the first’ sale. Crist v. McCoy, 287 Ill. 641.

In the case of Abbott v. Beebe, 226 Ill. 417, it was held that a court will not refuse to confirm a judicial sale on motion of an interested party merely to protect him against the result of his own negligence. Here the defendants are asking the court to refuse to confirm a judicial sale because of the condition deliberately created by the objecting defendant.

The mortgagors, under a decree of foreclosure, are still the owners of the equity of redemption. Their rights in the property are not barred by the sale during the redemption period. It is not claimed that the master in chancery acting under the decree of foreclosure was without jurisdiction to hold the sale. It is only contended that the property was reasonably worth $50,000, sold for $38,600, and that it might have brought more under different conditions. Reed v. Behm, 364 Ill. 399.

“Mere inadequacy of price will not justify a court of equity in setting aside a judicial sale, where there is a right of redemption.” Skakel v. Cycle Trade Pub. Co., 237 Ill. 482; Dobbins v. Wilson, 107 Ill. 17; Rader v. Bussey, 313 Ill. 226.

We find that the chancellor did not abuse his discretion in overruling defendant’s objections and approving the master’s report of sale; consequently the decree of the circuit court is affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Eiess

license: Public Domain

text:
    Elizabeth Wright and Charles C. Wright, Appellants, v. William S. Logan, Appellee.
    Gen. No. 9,027.

      Opinion filed January 15, 1937.
    Steely, Steely, Graham & Dysert, of Danville, for appellants; Walter V. Dysert, of counsel.
    Van Sellar & McClain, of Paris, for appellee.
   Mr. Justice Eiess

delivered the opinion of the court.

This is an appeal by Elizabeth Wright and Charles C. Wright, from a decree entered in the circuit court of Edgar county, dismissing their complaint in equity, under which they sought to redeem real estate from a mortgage foreclosure sale.

The appellants herein, plaintiffs below, in their amended complaint, alleged in substance that they were the owners and in. possession of a 40-acre farm in Edgar county, Illinois, and that the defendant is the holder of a master’s certificate of sale thereto, under a decree of foreclosure, which certificate is dated February 3, 1933.

They further allege that the defendant agreed with the plaintiffs, both before and after the 12 months’ statutory redemption period, that at any time thereafter, if the plaintiffs would pay the defendant all they owed him, he would transfer and assign said certificate or make and deliver his deed, as the case might be, conveying the premises described in said certificate of purchase to the plaintiff, Elizabeth Wright, or to her daughter Helen, or to any other person whom Elizabeth Wright might designate; that plaintiffs relied on said agreements and by reason thereof, thereafter made valuable improvements on said premises with the knowledge of the defendant; and so expended upward of $500; that the amount of the indebtedness of the plaintiffs to the defendant was unknown to them, and that the defendant refused their request for a statement of the amount of said indebtedness.

It was further specifically alleged that the defendant, on or about April 8,1933, at his office in Paris, Illinois, told the plaintiff, Elizabeth Wright, and her daughter, Helen, that plaintiffs could redeem said farm on which defendant held said master’s certificate of purchase any time they could get the money; that on or about November, 1933, and January 1, 1934, said defendant verbally agreed with the plaintiff, Elizabeth Wright, that at any time they could get the money and pay the defendant what they owed him they could redeem, either before or after the period of redemption, and if the period of redemption had expired, the defendant would deed said property to plaintiff’s daughter, Helen, or any one else whom they might sug’gest, and that if plaintiffs would let him take title to said farm, they might redeem after the expiration of 15 months, if they obtained the money to pay him; that the amount of $597.16 was expended by the plaintiffs on said premises during the period of redemption.

That the plaintiffs procured the approval of two different loans on said farm, one for $4,000, and the other for $1,000, and it is their belief, according to the best of their knowledge and information, that they owe the defendant $4,089.65, and that before bringing this suit, the plaintiffs were ready, able and willing and offered to pay the defendant whatever they owed him; that the plaintiffs offered to bring into court, and are willing to pay the defendant whatever sum the court may find the plaintiffs to be indebted to said defendant, and are ready, able and willing and offer to pay the same, but because of the refusal of the defendant to agree with the plaintiffs as to the amount of said indebtedness, they were never able to pay him, and by reason thereof said 12-month period allowed for redemption expired, and that then said defendant repudiated said agreement, and refused and declined to comply with the same.

Plaintiff further alleged that the defendant through his conduct and agreements is now in equity, and in good conscience, prevented and estopped from repudiating his said agreement to permit the plaintiffs to redeem said premises within a reasonable time to be fixed by the court,

The plaintiffs ask the court to determine the amount of indebtedness due the defendant, and to fix a reasonable time within which the plaintiffs may comply with the decree of the court by paying the said defendant the total amount of such indebtedness.

The defendant filed his answer, denying that the plaintiff is the owner of the real estate described in the petition, and states that William S. Logan, the defendant, is now the owner thereof.

The defendant therein denies practically all the allegations in the plaintiff’s complaint, and denies that the plaintiffs ever offered or were able to pay him the amount of said indebtedness.

The defendant, upon leave of court, filed several additional paragraphs to his answer in which he alleges that the plaintiffs, without any notice to the defendant, and without having offered to pay the defendant any amount on May 3,1934, filed a petition in bankruptcy, in the United States District Court of the Eastern District of Illinois, asldng for a composition and extension of time for rehabilitation of the plaintiffs, within which to pay all creditors; that without notice, the plaintiffs obtained an order from said court, restraining the master in chancery from issuing a deed in said foreclosure proceedings, and also restraining the defendant from talcing any steps to obtain said deed, or to obtain possession of said real estate.

That upon a hearing of said petition before the referee in bankruptcy, a finding was made by the referee against the plaintiffs, dissolving said restraining order; that thereupon the referee in bankruptcy referred his finding to the United States District Court for the Eastern District of Illinois, and after a hearing thereon, the report of the referee was confirmed and adopted by the court on the 15th day of August, 1934.

That thereupon the plaintiffs perfected an appeal to the United States Circuit Court of Appeals for the Seventh District; that in said proceeding, plaintiffs filed a brief, and devoted a number of pages in their argument to the question whether or not an oral agreement for extension of time for redemption existed between the plaintiffs and the defendant; that afterward, on the 22nd day of February, 1935, an opinion was filed in said Court of Appeals, finding against the plaintiffs which said opinion also confirmed the report of the referee of the District Court.

That thereupon on the 5th day of April, 1934, appellants, plaintiffs herein, filed a petition in said Federal District Court for a transfer of said bankruptcy proceeding, under section 75 of the Bankruptcy Act; that in accordance with said petition the cause was referred to a conciliation commissioner for a hearing; that a motion was filed by the appellee, defendant herein, asking that said cause be dismissed as to said defendant, and that the restraining order heretofore issued by the said federal court, restraining the master in chancery of Edgar county from issuing a deed under the foreclosure decree, be dissolved and set aside, and that an order was entered on the 11th day of June, 1935, dissolving and setting aside said restraining order. Plaintiffs thereupon prayed an appeal from said order, which appeal was never perfected; that a counterclaim for $500 was filed by the defendant in the circuit court, which was disallowed by said court and no cross errors were assigned thereon; hence the same is not before this court.

There are but two questions involved in this case: First, did the appellee enter into a binding agreement with the appellant by which he agreed to extend the time for redemption from foreclosure sale held on February 3, 1933? Second, does the doctrine of res ad judio at a apply in this case, whereby the plaintiffs are bound by the judgment of the federal court, purporting to find that there was no oral agreement between the defendant appellee and the plaintiffs appellants herein for an extension of the time of redemption from the mortgage sale on February 3, 1933?

Mrs. Elizabeth Wright, one of the plaintiffs, testified that subsequent to the sale of the real estate in question, she talked to the defendant, Logan, at his office in Paris, Illinois, on or about the 21st day of April, 1933; that she then rented the farm in question for $300 per annum, payable in cash. She further testified that she then inquired as to the total amount of indebtedness due defendant; that.she talked to the defendant at his office in regard to the redemption of the farm at the foreclosure sale, and that he told her that she might redeem her land any time she procured the money and paid him all she owed him. She told Mm she was arranging for a loan and that she expected to pay Mm.

She testified that she again saw Mm in November, 1933, and asked him to refinance her, and that he told her he would not do that, but he would let her take title to the land, and that he would, even after the period of redemption had expired, let her redeem the land; that she again saw him about the first day of January, 1934, and that he told her she might redeem, even after the time had expired, and that she might have her land back, even after the 12 months or the 15 months had expired, if she secured the money, and paid all she owed him; that if he should die in the meantime, he would tell Ms son, Ben, and his secretary that the lands were to be deeded to her, provided she secured the money, even though the 15 months had expired; that on April 28,1934, she again saw him, and talked to him. The 15 months ’ time had almost expired, and she asked him “to enter into writing” with her to grant this extension of time. He told her he would not give her any instrument of writing, but that she might redeem, and that Ms word was as good as a bond. She further testified that she had expended the sum of $597, in making improvements on the farm during the period of redemption, which sum was expended in painting buildings, building fences, setting out fruit trees and shrubbery, hauling lime and making other permanent improvements, which sum was expended after the appellee had agreed to accept his money, before or after the period of redemption; that she had given notes totaling $300 to defendant Logan for rent after the premises had been sold at the foreclosure sale. She testified that it was expressly agreed that no rent would be charged, if she redeemed the premises. Standing uncontradicted, as it does, this testimony tends to show that both parties had an arrangement for redemption of the property prior to the expiration of the 12 months’ redemption period.

Clara Young testified that defendant Logan had made the following statement to her at his office on August 28,1933: “I told your sister that whenever she got the money, and paid me, I would make a Certificate out to Helen or anyone else.”

Helen Wright, daughter of plaintiff, also testified that she had many conversations with defendant Logan at his office relative to the redemption of the farm and that he told her that at any time her mother or father obtained the money, he would make her a deed to the land in order to save it.

Alden Wright, son of Mrs. Wright, testified that his mother asked Mr. Logan at his office “to enter into writing” to give her an extension of time for redemption, and that Logan stated she could pay the amount due at any time, that his word was as good as a bond. The defendant, Logan, did not testify.

It thus appears from the uncontradicted testimony of several witnesses that defendant told the plaintiff at various times that she could redeem, either before or after the equity of redemption had expired; that during the period of right of redemption she expended the amount of $597 on the premises, the major portion so expended being for permanent improvements made on the premises after defendant had made these statements to her; that the defendant told her during the latter part of April, 1934, that he would not give the land up, and that he intended to get a master’s deed.

Defendant contends in his argument that the evidence does not show that the plaintiffs were prepared, even on the date of the hearing of this cause, to carryout their part of the contract, and to pay defendant the amount which she and her husband owed him. In view of the undenied testimony on behalf of the plaintiff, that the defendant told her during the latter part of April, 1934, that he did not intend to give up the property, and that he was going to get a master’s deed, it becomes immaterial in this case, and her right to pursue her remedy in equity thereupon immediately accrued. It must be remembered that this is a bill to redeem from a foreclosure, and the law does not require a mortgagor to make a formal tender or allege an offer to redeem in his bill before he is entitled to redeem. Taylor v. Dillenburg, 168 Ill. 235.

It is well settled in this State that courts of equity will enforce oral agreements involving an extension of the statutory legal period of 12 months for the redemption of property from a foreclosure sale; especially in cases where the mortgagor has been fraudulently induced to rely upon the representations of the creditor, and has been so lulled to sleep as to allow the period of redemption to expire, without any effort to redeem. However, the latter element is not presented by the testimony in this case. There is no claim or proof that appellee was deceived by any trick, artifice or device to allow the time of redemption to pass; nor is this necessary in this case. Diggins v. Axtell, 196 Ill. App. 480; Union Mutual Life Ins. Co. v. Kirchoff, 133 Ill. 368; Ogden v. Stevens, 241 Ill. 556; Taylor v. Dillenburg, 168 Ill. 235.

It is clear from the evidence that the plaintiffs had a well grounded belief, based upon statements made by the defendant, that they might redeem their property either before or after the equity of redemption period had expired, and that relying on such statements, they expended $597 in making improvements on the premises sold under foreclosure, which could be of no benefit to them after such right of redemption had expired.

Appellee further contends that the doctrine of res adjudicata applies in this case, and that the question as to whether or not an oral contract had been entered into between appellee and appellants was decided in the United States Circuit Court of Appeals.

It appears from the record that on the second or third day of May, 1934, plaintiffs herein filed a petition in bankruptcy in the United States District Court for the Eastern District of Illinois, and submitted to the bankruptcy court a proposition for a five-year extension of their debts, pursuant to section 75 of the Bankruptcy Law. Upon a hearing, the referee denied confirmation of the proposed extension which ruling was confirmed by the District Court. In that proceeding, it was necessary for the appellants to have a majority of the creditors in number and amount consent in writing, to the proposed extension. It was contended by plaintiffs in the Court of Appeals that defendant Logan had orally consented to an extension of the time for the redemption of the property in question, and that therefore and thereby he had consented to the proceeding in the Bankruptcy Court. Whether or not he had consented to an extension for the time of redemption was not a matter in issue, and was not necessary to a determination of the issues before the Federal Court of Appeals.

Justice Alschuler in his opinion stated, obiter, that if Mr, Logan had expressed willingness to take the money due on Ms mortgage, even if construed to apply to a time after the redemption, it was certainly not the eqmvalent of his assent to a proposition that, for a period of time which might extend to five years, he would refrain from taMng deed to the property.

The bankruptcy proceeding was decided adversely to the plaintiffs. There was only one question involved, namely: had a majority of the debtors of appellants in number and in amount signed the extension agreement. Whether or not appellants and appellee had entered into an agreement to extend the time of the equity of redemption was not a material issue there; consequently the statement of the court in its opinion, that it did not appear from the evidence that a valid oral agreement had been entered into, could not and does not constitute res adjudicuta in this proceeding.

/‘To constitute a bar, a former adjudication must have been upon a matter actually at issue, the determination of which was essential to the decree, and it must conclusively appear that the matter was so at issue, that it was necessarily determined by the Court rendering the decree which is interposed as a bar, by reason of such estoppel.” Fineman v. Goldberg, 329 Ill. 507, 511; White v. Sherman, 168 Ill. 589.

“ A finding of facts not necessary to uphold a former judgment does not conclude the parties. Even though a decree in express terms professes to find the particular fact, yet if such fact was immaterial and the controversy did not turn upon it, the decree will not conclude the parties in reference to that fact.” Hunter v. Troup, 315 Ill. 293, 298.

The evidence clearly shows that the plaintiffs remained in possession of their farm after the foreclosure, and made improvements during the period of redemption, with the knowledge and consent of the defendant, relying on their arrangement with the defendant for the extension of the time of redemption.

A doctrine of res adjudicata did not preclude them from maintaining* their action. The decree is therefore reversed, and the cause remanded with directions that the court ascertain the amount due from the plaintiffs to the defendant; that the plaintiffs be permitted to redeem within a reasonable time to be fixed by the court, and that upon payment thereof, the deed from the master in chancery conveying the premises described in the decree of foreclosure to the defendant be canceled, and that the defendant, Logan, be required upon such redemption to reconvey by a proper deed to Elizabeth Wright, the title acquired by him to the property through said master’s deed and certificate.

Decree reversed and cause remanded with directions.


author: Mr. Justice Riess

text:
    Edward Perkins, Appellee, v. Russell Stephens, Appellant.
    Gen. No. 9,032.

      Opinion filed January 15, 1937.
    W. S. Lamon, State’s Attorney, for appellant; Van Sellar & McClain, of Paris, of counsel.
    Harvey Gross, of Paris, for appellee.
   Mr. Justice Riess

delivered the opinion of the court.

This was a petition for a writ of mandamus in the circuit court of Edgar county, by appellee, petitioner below, against appellant, Russell Stephens, county superintendent of schools of Edgar county, Illinois, as respondent, to compel respondent to approve an application for transfer of petitioner’s children from the Metcalf High School to the Paris High School District, both in Edgar county, on the ground that it was more convenient for the pupils to attend the Paris High School.

The appellee, as petitioner in the circuit court, in his petition in substance alleged that he is a resident of the Metcalf Township High School, District No. 157, in Edgar county; that he has two children, who for the past year have been attending high school at the Paris Union High School, District No. 95; that it is six miles from his residence to the Metcalf High School, in the village of Metcalf; that the mother of petitioner, grandmother of the children, resides in Paris within one block of the High School; that all of the business trading, social and amusement relations of the petitioner and his family are in Paris; that during the entire time his children have been in high school at Paris, they have resided with their said grandmother, or with their mother’s mother, thereby eliminating the necessity of traveling to Metcalf; that the petitioner owns one automobile which he uses in his daily business, and has no other means of conveyance, and that it is much more convenient for the children to be permitted to attend the Paris High School',1 that the law provides that upon the approval of the county superintendent, any high school pupil may attend a recognized high school more convenient in some high school district other than the one in which he resides, and that the district in which he resides shall pay tuition to the other district, provided the tuition does not exceed the per capita cost of maintaining the high school attended; that the Paris High School is a recognized high school with a four-year course; that prior to the opening of the high school, the petitioner made known to the respondent county superintendent of schools the facts stated in the petition, and explained that it was more convenient for the children to attend the Paris High School than the Metcalf High School; that the county superintendent of schools, though not denying, but admitting that it was more convenient for the children to attend the Paris High School, refused to approve such attendance, and still refuses, giving no reason for such refusal, except that it would injure the Metcalf High School if it had to pay the tuition of said pupils at the Paris High School, and probably would be the cause of other high school pupils in the county requesting similar transfers; that the refusal of respondent to approve the attendance of said pupils at the Paris High School was arbitrary and unjust, and not a proper exercise of his duties.

The respondent filed a motion, asking for judgment, stating that the petition did not allege circumstances tending to show duty of respondent to approve the attendance of petitioner’s children at the Paris High School. This motion was overruled. Respondent then answered the petition. By his answer, respondent admits that petitioner’s two children attended the Paris High School for the past year. He neither admits nor denies a number of the allegations which are not material here.

He further admits that the Paris High School is a recognized high school with four-year courses, but denies that anyone but the county superintendent of schools has the right to determine whether the approval shall be given and avers that said approval is purely a matter of discretion on the part of the county superintendent, and unless he has acted in giving or withholding his approval for the transfer of a pupil in a manner that can be said to have amounted to fraud or abuse of discretion, said pupil has no right to a transfer.

Respondent admits that prior to the opening of both the Paris High School and the Metcalf High School for the year 1935, petitioner spoke to him about the transfer of said pupils and told him that it was more convenient for the children to attend the Paris High School, and requested him, as county superintendent, to approve their transfer to said Paris High School.

Respondent denied that he admitted it to be more convenient for the children to attend the Paris High School than the Metcalf High School, and admitted his refusal to approve the transfer, and still refuses to approve the same. He denied that he gave as a reason for such refusal that it would injure the Metcalf High School District if it had to pay the tuition of said pupils, and would probably be the cause of other high school pupils requesting similar transfers. He denied that his refusal to approve the attendance of the children at the Paris High School was arbitrary and unjust, and denied that it was not a proper exercise of his duty in the premises, or contrary to the intent and purpose of the law.

On the trial the petitioner testified that he lives in Metcalf High School District: that he has two daughters; that his mother is a widow and lives in Paris, and that his wife’s mother lives in Paris, and is a widow; that he lives six miles from the Metcalf High School on an oil and mud road; that he owns one automobile for general use; that he has no other way to send his two children to school; that he goes to Met-calf once or twice a year, and does all of his business in Paris; that his children attend the high school in Paris, and stay at his mother’s home, and that he has no relatives in Metcalf; that he talked to the appellant at his office, and told him about the conditions, and that it would be inconvenient to send the children to Met-calf ; that he told him about their grandmother keeping them, and asked for a transfer; that the respondent told him he could not grant a transfer on account of other permits, and that he gave no other reason.

He further testified that he owned 111 acres of land; that his land is “involved”; that he lives a quarter of a mile north of what is known as the Horace Eoad; that by going south a quarter of a mile he could travel on a gravel road all the way to Metcalf; that to go to Paris it would be necessary to travel five miles over the same road.

The respondent testified that he was county superintendent of schools, and is familiar with the Metcalf High School and the Paris High School; that both are recognized high schools; and that he knows where appellee lives; that in going to Metcalf it is necessary for him to travel six miles, and in going to Paris it is necessary for him to travel five miles; that the roads are passable at all times.

He further testified that he told petitioner that he could not grant transfers to his children, unless it was agreeable to both boards of education, and that he would not admit that it would be more convenient for them to go to Paris to school, and that he does not say now that it would be more convenient for them to go to Paris; that sometimes an exchange can be made, and that was attempted in this case; that if he granted a permit in this case, it would be necessary for him to grant one in all cases.

Respondent seeks to reverse and set aside the order granting the writ of mandamus.

Under the statute the county superintendent alone has the right to approve or refuse transfers. The statute in question reads as follows: “Upon the approval of the County Superintendent of Schools, any high school pupil may attend a recognized high school more convenient in some district other than the high school district in which he resides and the Board of Education of the high school district in which such pupil resides shall pay the tuition of such pupil provided said tuition shall not exceed the per capita cost of maintaining the high school attended.” Ch. 122, TÍ104, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 123.111 (Ch. 122, sec. 104, Smith-Hurd Statutes).

The appellee petitioner relies on the decision of the. recent case of Pyle v. Puntney, 254 Ill. App. 224. The same question presented here was before the court in that case. The petition for a writ of mandamus alleged facts similar in character to the facts alleged in the present petition. It further alleged that the county superintendent admitted it was more convenient for the pupil to attend the high school to which he had asked for a transfer. Defendant demurred to the petition, and thereby admitted all the facts alleged therein, including the allegation that the county superintendent found it was more convenient for appellant’s son to attend the Carmi school.

The holding of the court in that case then necessarily was that the superintendent’s discretionary power was exhausted, and his duty to give his approval then became a mere ministerial act, the performance of which, in a proper case, could be enforced by mandamus.

Under the present statute it is not the province of the court to determine what high school is more convenient for certain pupils to attend since the determinative discretion has been placed with the county superintendent. Board of Education of Drummer Township Sigh School Dist. No. 118, v. Board of Education Sibley Community High School Dist. No. 115, 323 Ill. 152; School Directors of School Dist. No. 3, County of Clay v. Babcock, 249 Ill. App. 305.

In the case of School Directors of Dist. No. 3, County of Clay v. Babcock, supra, the bill alleged in substance that six pupils named therein resided in complainant’s School District No. 3 within four blocks of the high school; that in going from their homes to the Flora School in District No. 99, they passed by complainant’s school, crossed two railroads, and then drove for about nine miles on a concrete road before reaching the Flora High School; that the Flora School was not more convenient, nor better adapted, nor more appropriate to the case and comfort of said pupils; that the pupils reported to the school superintendent that they desired to pursue certain studies not taught in School District No. 3; that the superintendent found it was more convenient for them to attend the Flora School, and approved their application for transfer. The bill sought to restrain the board of education of the home district from making the payment of tuition of the pupils on the ground that the action of the county superintendent in approving and granting such transfer was illegal, and constituted fraud and abuse of his official discretion.

We held in that case that the county superintendent did not abuse his discretion in granting the transfer and we said that “the statute aforesaid designates the County Superintendent of Schools as the party whose duty it is to determine the question of convenience and as the one to say what high school is more convenient to such high school pupils. The Statute made him a ministerial officer for that very purpose, and his decision as such ministerial officer is valid and binding and cannot legally be disturbed in a collateral proceeding by any court in the absence of any showing of fraud. The Circuit Court should therefore not have concerned itself with the question of whether or not appellee’s school was more convenient for such pupils than that of appellant’s, as there was absolutely no claim of fraud in the obtaining or in the making of the ministerial officer’s decision.”

"Whether or not the Paris High School was more convenient for the petitioner’s children than the Metcalf High School was a question to be determined by the county superintendent of schools under the discretionary power lodged in him by the statute, and even though we might disagree with the county superintendent on that question, nevertheless, we cannot hold under this record, in the absence of any finding by him that it was more convenient for said pupils to attend said high school, that his decision in refusing to approve said transfer was either fraudulent, or constituted oppressive or arbitrary abuse of his discretionary powers.

The judgment of the circuit court is reversed, with directions to quash the writ of mandamus heretofore issued, and to dismiss the petition.

Judgment reversed and cause remanded with directions. ■