text:
    Florence S. Tuttle, Appellant, v. Checker Taxi Company, Appellees.
    Gen. No. 37,911.

      Opinion filed April 1, 1935.
    Royal W. Irwin, of Chicago, for appellant.
    Erwin W. Roemer and John W. Costello, both of Chicago, for appellees.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against defendants to recover damages for personal injuries claimed to have been sustained by her as a result of being struck and injured by the negligent operation of a taxicab owned and- operated by defendants. There was a jury trial and a verdict in favor of defendants. Plaintiff’s motion for a new trial was allowed and leave was granted by this court allowing defendants an appeal from the order awarding a new trial. Upon consideration by this court, the order appealed from was affirmed. Tuttle v. Checker Taxi Co., 274 Ill. App. 525. There was another trial of the case and a verdict and judgment in defendants’ favor and plaintiff appeals.

The record discloses that the accident occurred on State street about 100 feet south of Madison street, as plaintiff was attempting to board a' northbound street car. Plaintiff left the east curb, passing between two automobiles in the first, or east, lane of traffic, and as she reached the second lane of traffic was struck by one of defendants’ northbound taxicabs driven in the second lane by its chauffeur, Fluckiger, the other defendant.

The evidence tends to show that plaintiff was about opposite the rear step of the street car. The space between the east curb and the east rail of the northbound track was about 22 feet. A loading zone for street cars had been established at this place; it was indicated by a yellow line painted on the pavement which ran parallel with the street car tracks, and six feet east of the east rail. This line commenced at a point about 20 feet south of the “stop and go” light at the street intersection and continued south in a straight line parallel to the street car tracks for 95 feet, when it turned diagonally toward the street car tracks for 20 feet. The evidence is to the effect that at the time the Checker cab struck plaintiff it was less than 10 feet from the rear step of the street car, which the evidence tends to show was standing for the purpose of receiving passengers at the time. There were a great many people standing in the loading zone intending to board the car.

Plaintiff testified that as she stepped between the automobiles in the east lane and into the second lane of the northbound traffic, the taxicab, which was stopped, “lurched forward” and struck her, throwing her to the ground and severely injuring her.

On the other side, the taxi driver testified that the cab had not stopped but was moving when plaintiff suddenly stepped from between the automobiles in the east lane of traffic in front of the cab and was struck by the right front fender.

Plaintiff contends that the court erred in admitting two ordinances of the City of Chicago over objection of her counsel; that these ordinances are invalid because they are in conflict with the statute. The first ordinance complained of is par. (b), sec. 77, Art. VIII of the Uniform Traffic Code of Chicago. It provides that:

“It shall be unlawful for the operator of any vehicle to fail to stop said vehicle not less than ten feet to the rear of the nearest open doorway of any street car that has stopped for the purpose of receiving or discharging passengers, or for said operator to again proceed until all persons have boarded said street car or have reached a place of safety. This provision shall not. apply to passing upon the left of any street car on a one-way street or upon such streets where the tracks are so located as to prevent compliance with the rule.

“Provided, however, that where a safety zone has been established or at any intersection where traffic is directed by a police officer or by an official traffic signal, an operator need not stop but may proceed at a rate of speed consistent with the safety of pedestrians. ’ ’

Counsel say that this ordinance conflicts with sec. 40 of the Motor Vehicle Act of this State. (Ch. 95a, fí 41, Cahill’s 1933 Stats.) The pertinent portion of that section provides: “In approaching or passing a street railway car, which has been stopped for the purpose of receiving or discharging passengers, the operator of every motor vehicle or motor bicycle shall not drive such vehicle or bicycle within ten feet of the running board or lowest step of such car, except by the express direction of a traffic officer. ’ ’

Sec. 26 of the same chapter of the Motor Vehicle Act provides, inter alia, “Except as in this section provided, no city, town or village or other municipality ■shall have power to make any ordinance, by-laws or resolutions limiting or restricting the speed of motor vehicles or motor bicycles, and no ordinance, by-law or resolution heretofore or hereafter made by any city, village or town or other municipal corporation within this State, by whatever name known or designated, in respect to or limiting the speed of motor vehicles or motor bicycles shall have any force, effect or validity, and they are hereby declared to be of no validity or effect: Provided, that nothing in this Act contained shall be construed as affecting the power of municipal corporations to make and enforce ordinances, rules and regulations affecting motor trucks and motor driven commercial vehicles used within their limits for public hire, or from making and enforcing reasonable traffic and other regulations except as to rates of speed not inconsistent with the provisions hereof.”

Obviously if an ordinance is contrary to a statute, the ordinance must give way. The ordinance, like the statute, makes it unlawful for the operator of any motor vehicle to fail to stop the vehicle not less than 10 feet from a street car that has stopped for the purpose of receiving or discharging passengers. But the statute (sec. 26) also provides that nothing contained in the act shall prevent a municipality “from making and enforcing reasonable traffic and other regulations except as to rates of speed,” which is not inconsistent with the act. The ordinance provides that it is unnecessary for the operator of a motor vehicle to stop 10 feet from a street car which was stopped to receive or discharge passengers “where a safety zone has been established” or “where traffic is directed by a police officer or by an official traffic signal,” in which case the motor vehicle “may proceed at a rate of speed consistent with the safety of pedestrians.”

We think this provision of the ordinance is but a traffic regulation authorized by the statute above quoted. City of Chicago v. Francis, 262 Ill. 331; City of Chicago v. Keogh, 291 Ill. 188; Pettit v. Weil-McLain Co., 252 Ill. App. 423; Village of Winnetka v. Sinnett, 272 Ill. App. 143.

In the Francis case, 262 Ill. 331, an ordinance of the City of Chicago (which required the owner of a motor vehicle to display a number upon such vehicle corresponding with the city license) was held to be in conflict with the statute and void. The law then contained the same provision as that in sec. 26 above quoted, and in discussing this provision the court said (p. 337): “The exception, from the law, of motor trucks and motor-driven commercial vehicles, which would necessarily be used locally, emphasizes the intent of the law in regard to motor vehicles like the one used by plaintiff in error in this case. It is undoubtedly necessary for municipalities to establish and enforce traffic regulations, and the reasonableness of municipal ordinances enforcing such regulations would depend upon the circumstances and conditions in such municipalities. Under the law a municipality may make and enforce reasonable traffic and other regulations, except as to rate of speed, not inconsistent with the provisions of the State law regulating the use of motor vehicles when conditions warrant them.”

In the Keogh case (291 Ill. 188) it was held that an ordinance forbidding the driver of a motor vehicle, on overtaking a street car, to pass on the left side of the car, was purely a traffic ordinance and not in violation of the Motor Vehicle Act.

In the instant case we hold that the ordinance is but a necessary traffic regulation and not in conflict with the statute, but is expressly authorized by section 26 of the act. If there seems to be a slight inconsistency between that section and section 40 of the act (the one authorizing a municipality to make reasonable traffic and other regulations except as to rates of speed; and the other providing that one shall not drive a motor vehicle within ten feet of the lowest step of a street car in passing it), we must remember what we said when this case was here on an appeal from a motion awarding a new trial (274 Ill. App. 525). We there quoted’from Mr. Justice Holmes (282 U. S. 499) where he said that “The interpretation of constitutional principles must not be too literal. We must remember that the machine of government would not work if it were not allowed a little play in its joints.” But we think the inconsistency is more apparent than real. The ordinance in question is a traffic regulation authorized by the statute. We judicially notice the fact that in the crowded conditions existing in the Loop of Chicago and in other places, it would be impossible to carry on without some such traffic regulation as provided for in the ordinance.

The other ordinance admitted in evidence, of which plaintiff complains, provides that “Any pedestrian crossing a roadway at any point other than within a crosswalk shall yield the right of way to vehicles upon the roadway.

“The provisions of this section shall not relieve an operator of a vehicle or a pedestrian from the duty to exercise due care.”

Counsel for the defendants say this ordinance was not admitted in evidence, but if we assume that it was, we think there was no error. Counsel for plaintiff says this ordinance is invalid because it conflicts with section 40 of the Motor Vehicle Act, ch. 95a, Cahill’s 1933 Statutes, which provides that “Upon approaching a person walking upon or along a public highway, or a horse or horses, or other draft or domestic animal or animals being ridden, led or driven thereon, the operator of a motor vehicle or motor bicycle shall give reasonable warning of his approach and use every reasonable precaution to avoid injuring such person, or frightening or injuring such horse, horses, or other draft or domestic animal or animals, and, if necessary, stop his said motor vehicle or motor bicycle until he can safely proceed.” In support of this contention counsel says: “A pedestrian upon a public highway has an equal right therein with a motorist. The Legislature alone has the power to take from one his legal right.” We think there is no inconsistency between the ordinance and the statute. The situation contemplated in the statute is not the situation involved in the case at bar where plaintiff was attempting to cross the street 100 feet from the street intersection. It is obvious that one driving a motor vehicle in a city or village is expected to exercise a higher degree of care at intersecting streets than at 100 feet from the intersection where a driver would not be expecting a person to cross. We think defendants were entitled to the benefit of this ordinance by calling it to the attention of the jury.

The judgment of the superior court of Cook county is affirmed.

Judgment affirmed.

McSurely and Hatchett, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice O’Connor

license: Public Domain

text:
    Chicago Title and Trust Company, Appellee, v. The County of Cook, Appellant.
    Gen. No. 37,944.

      Opinion filed April 1, 1935.
    Rehearing denied April 15, 1935.
    Gerald R. Gorman and Mayer, Meyer, Austrian & Platt, all of Chicago, for appellant; Frederic Burn-ham, Gerald R. Gorman, Frank D. Mayer and Miles G. Seeley, all of Chicago, of counsel.
    Lawlor, Walsh & Bernstein, of Chicago, for appellee; Edwin D. Lawlor, of Chicago, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff, as owner of certain real estate, brought an action against defendant, the County of Cook, to recover damages claimed to have been sustained on account of the construction by defendant of a grade, separation adjacent to plaintiff’s property. The case was tried before the court without a jury, and after all the evidence was heard, and while counsel for plaintiff was arguing the case on the merits he moved for a voluntary nonsuit. Counsel for defendant objected on the ground that plaintiff had failed to comply with the provisions of section 52 of the Civil Practice Act. The motion was allowed, judgment entered against plaintiff for costs, and defendant appeals.

The record discloses that the trial of the cause was commenced before the court without a jury on May 23, 1934, and the court proceeded to hear the evidence. An adjournment was taken until May 25th, and on that date the hearing was resumed, evidence being presented by plaintiff, and the case was continued until the following Monday, May 28th, when the hearing was resumed. Plaintiff again offered evidence, and on the following day the case was on hearing, plaintiff still offering evidence. The case was then continued to June 13th, when defendant introduced evidence in its behalf, and the hearing was continued on the following day, when the introduction of evidence was all completed and the cause continued until June 20th for the purpose of hearing argument of counsel. June 20th the cause was again continued for the same purpose until July 6th, and on that date plaintiff was given leave to file an amended declaration, which was done, and defendant’s pleas were ordered to stand to the amended declaration. There was then some discussion between court and counsel for both sides, and thereupon counsel for defendant submitted propositions of law and findings of fact to the court. Counsel for plaintiff then proceeded to argue the case on its merits, which argument proceeded for some time, when the court indicated he would like to have counsel discuss the propositions of law submitted by counsel for defendant, the court suggesting that he thought the propositions of law appeared to be sound, “because you cannot show any particular damage to your property.” There was further argument by counsel, and discussion by the court as to whether plaintiff was entitled to any damage, when counsel for plaintiff said he would take a nonsuit, suggesting that he felt the court was prejudiced against the case. The motion was objected to by counsel for the defendant, and the provisions of section 52 of the Civil Practice Act were called to the attention of the court. The court allowed the motion over defendant’s objection.

Section 52 is as follows: “Sec. 52 (Voluntary dismissal.) The plaintiff may, . . . upon notice to the defendant or his attorney, and on the payment of costs, dismiss his action.or any part thereof as to such defendant, without prejudice, by order filed in the cause. Thereafter he may dismiss, on the same terms, only (1) upon filing a stipulation to that effect signed by such defendant, or (2) on the order of the court or judge made on special motion in which the ground for such dismissal shall be set forth and which shall be supported by affidavit. After a counter-claim has been pleaded by a defendant no dismissal may be had as to him except by consent of the defendant.”

Although the instant case was brought September 25, 1931, the trial was not begun until May 23, 1934. The practice in the trial court on the hearing of the case and on review, is governed by the Civil Practice Act (Rule 1, Supreme Court).

“At common law a plaintiff could take non-suit at any time before verdict was rendered, in open court. (Berry v. Savage, 2 Scam. 261.) Under section 70 of the present Practice act [1907] this common law rule has been modified so that non-suit is barred unless entered before the jury has retired from the bar, ‘or, if the case is tried before the court without a jury, before the case is submitted for final decision. ’ ” Aetna Life Ins. Co. v. Hoppin, 255 Ill. 115, 117.

The right to take a nonsuit is further limited by section 52, above quoted. That section provides that if a motion for a nonsuit is not made until after the trial begins, plaintiff may dismiss his suit on payment of costs “only (1) upon filing a stipulation to that effect signed by such defendant, or (2) on the order of the court or judge made on special motion in which the ground for such dismissal shall be set forth and which shall be supported by affidavit.”

In the instant case the motion for a nonsuit not 0 having been made until after the trial of the cause began, the court was not authorized to dismiss it over defendant’s objection, except upon plaintiff’s compliance with the terms of the act. To entitle plaintiff to a nonsuit under the circumstances involved, the statute required that plaintiff make a “special motion in which the ground for such dismissal shall be set forth and which shall be supported by affidavit.” No attempt having been made to comply with this provision of the act, the court was not warranted in sustaining plaintiff’s motion and entering the order awarding the plaintiff a nonsuit.

The practice under the common law that permitted a plaintiff to take a nonsuit at any time before the decision by walking out of the court room, and the practice under section 70 of the old Practice Act, which permitted plaintiff to take a nonsuit after the case has been heard by the court before it was submitted for final decision, often made the administration of justice a mere travesty. Evidence might be taken in a case for a number of days by both sides. Counsel might then argue at length and if, during the argument, it appeared from what the court had intimated that he was inclined to decide for the defendant, plaintiff had the absolute right to take a nonsuit. It was to remove this obvious defect in the law that the legislature enacted section 52 of the Civil Practice Act.

The procedural point made by plaintiff was that the appeal should be dismissed because there are no assignments of error attached to the record. Under the new Practice Act, no assignments are necessary. Travelers Ins. Co. v. Wagner, 279 Ill. App. 13. We there said (p. 17): “Formal assignments of error were only required by rule of court, not by statute. Ditch v. Sennott, 116 Ill. 288. The present rules of the Supreme Court, effective January 1, 1934, contain no provision for assignments of error, but Enle 39, entitled ‘Briefs’ provides that the brief of appellant shall contain ‘the errors relied upon for reversal.’ The brief of plaintiff before ns meets this requirement.”

Holding, as we do, that the court was not warranted in allowing plaintiff’s motion for a nonsuit, the judgment of the superior court of Cook county is reversed and the cause remanded with directions to the court to decide the case on its merits.

Reversed cmd remanded with directions.

McSurely and Hatchett, JJ., concur.


author: Mr. Justice McSurely

text:
    Jacob Lieberman, Appellee, v. Herbert Schoenlank et al., Appellees. Emil A. Wagner, Appellee, v. Herbert Schoenlank et al., Appellees. Charles W. Kaiser et al., Appellees, v. Anna Schiffman, Appellant.
    Gen. No. 37,920.

      Opinion filed April 1, 1935.
    John W. Crbekmur and Leonard M. Cohen, both of Chicago, for appellant.
    Irving Goodman, of Chicago, for appellees Foreman Trust & Sav. Bank et al.
    Harry L. Rudnick, of Chicago, for appellees Charles W. Kaiser et al.
    Benjamin F. Fohrman, of Chicago, for appellee Emil A. Wagner.
   Mr. Justice McSurely

delivered the opinion of the court.

Arma Schiffman, by leave of court, filed her intervening petition in a foreclosure proceeding objecting to the entry of the decree of sale; her objections were overruled and the decree entered. She appeals.

A bill was filed to foreclose a second mortgage, and subsequently a bill was filed to foreclose a first mortgage on the same premises; the causes were consolidated and proceeded to decree; petitioner is the owner of a bond secured by the first mortgage.

One of the bills made party defendant “Foreman Trust & Savings Bank, as Trustee, under Trust No. 4200.” Petitioner argues that the beneficiaries in this trust should have been made parties to the bill".

It is not necessary to make beneficiaries of a trust parties to a foreclosure proceeding where the trustee has power to represent them and is made a party and does represent them in the proceeding. Jones on Mortgages (8th ed.) vol. 3, secs. 1784, 1785, 1786. Many cases are cited by the petitioner but none of them holds contrary to this rule. In Odell v. Levy, 307 Ill. 277, the heirs of the deceased mortgagor, who were owners of the equity, were not made parties defendant. They were, of course, necessary parties. In Dubs v. Egli, 167 Ill. 514, the trustee was not made a party. None of the other cases cited by petitioner is in point.

In none of the cases cited was it held that it was reversible error not to name alleged beneficiaries as parties where they were represented by and through the trustee. In the case of In re Petition of Whellock, 270 Ill. App. 87, it is held that where it appears that a particular party, although not before the court in person, is so far represented by others who are before the court that his interest received action and sufficient protection, the decree will be binding against him. To the same effect is Hale v. Hale, 146 Ill. 227.

Moreover, the appearance of the beneficiaries of Foreman Trust No. 4200 has been filed in this court and a brief is presented on their behalf. They have consented to the decree entered by the lower court.

The brief filed on behalf of the Foreman Trust No. 4200 and the beneficiaries calls our attention to what is termed an anomalous situation. The trustee, the beneficiaries and the complainants — those most vitally interested in proper procedure — all consent to the entry of the decree. Only the petitioner objects — the holder of a $1,000 bond out of a total of a $180,000 bond issue. In Hinton v. Knott, 134 Ill. App. 294, it was held that where a nonresident defendant and a necessary party was not properly before the court because of insufficient publication, he alone could object.

In the decree the chancellor fixed an upset price of $45,000 and ordered that unless this was bid the trustee was authorized and directed to bid on behalf of all the bondholders. This procedure followed that approved in Straus v. Chicago Title & Trust Co., 273 Ill. App. 63; Chicago Title & Trust Co. v. Bamburg, 278 Ill. App. 1, and Chicago Title & Trust Co. v. Robin, 278 Ill. App. 20. The petitioner seems to make the point that the upset price was too low. Ordinarily the setting of a minimum or upset price is discretionary with the chancellor and will not be disturbed by a court of review unless the discretion is abused. In Quindry, Bonds & Bondholders, sec. 316, is set out the factors the chancellor should consider in fixing an upset price.

Abundant opportunity was given all the parties to make suggestions with reference to the provisions of the decree. The petitioner by her counsel appeared, but the record shows only general criticisms on her behalf. Hearings were had and testimony heard as to the values. Two real estate appraisers were examined by the chancellor and by counsel, including counsel for the petitioner. Their valuation of the property was approximately $50,000. The chancellor based his opinion as to the upset price upon the testimony of these appraisers. Only one witness was offered by the petitioner as to the value of the property, but his lack of qualifications was so apparent that the petitioner withdrew him. We see no reason to disagree with the action of the chancellor with reference to the upset price.

Petitioner criticizes section 43 of the decree of sale, which provides that the trustee is to bid in the premises “in the event a price greater than the mi ni mum. herein set forth is not realized.” Petitioner says this places a limitation on the right of the trustee to bid. We do not so construe this provision. It follows the procedure in the Straus case, where we said that the trustee ought to bid the amount of the indebtedness unless a cash bid is received equal to the upset price fixed by the chancellor. In the instant case the trustee is authorized to bid in the property for all bondholders in the event the upset price is not bid at the sale.

Complaint is made that the fees allowed to the complainant trustee and his solicitor are excessive. No objection was made to these in the trial court and it is too late to make it, for the first time, in this court. However, we have examined the amounts allowed and do not consider them excessive. Firebaugh v. Seegren, 265 Ill. App. 381; Chicago Assets Co. v. Watrous, 262 Ill. App. 254, and Chicago Title & Trust Co. v. Rubin, 265 Ill. App. 509. The amounts allowed were fair and reasonable.

We find no errors in the decree and it is affirmed.

Affirmed.

O’Cohhor, P. J., and Hatchett, J., concur.


author: Mr. Justice McSurelt

text:
    The People of the State of Illinois ex rel. John J. Kronenbitter, Appellee, v. Board of Trustees of the Firemen’s Pension Fund of the Village of Maywood et al., Appellants.
    Gen. No. 37,967.
    Opinion filed April 1, 1935.

      Dittus & Chatroop, of Chicago, for appellants.
    Normah A. Beck, of Chicago, for appellee.
   Mr. Justice McSurelt

delivered the opinion of the court.

Plaintiff brought suit by mandamus, seeking to have his name enrolled as a beneficiary of the Firemen’s Pension Fund of the Village of Maywood; the case was heard by the court, who awarded the writ, and defendants appeal.

The Firemen’s Pension Fund Act, ch. 24, commencing with par. 928, Illinois Statutes (Cahill) 1933, in brief provides that where a fireman has served 20 years and has paid all sums due the pension fund (par. 934) and when $25,000 has been accumulated in the pension fund (par. 931), the retiring fireman is entitled to a pension of one-half of his monthly salary.

Defendants first assert that they should have been given a reasonable time to consider and act upon plaintiff’s application for a pension. The record shows that plaintiff applied to the Board of Firemen’s Pension Fund to be placed upon the roll of the pension board May 26,1934.; that on June 4th the attorney for the village board was requested to take up the question of enrolling the plaintiff; this request was repeated June 11th; again, on Julv 10th the request was repeated, with the suggestion that suit would be started- unless some action was taken soon. The correspondence between the parties fails to indicate any readiness on the part of the pension board to act. This suit was commenced August 11, 1934. We hold that the delay on the part of the board amounted to a refusal to act and that the petition for mandamus was properly filed.

It is next said that plaintiff had not served the required 20 years as a fireman within- the meaning of the act. Plaintiff was first employed as a fireman by the Village of Maywood on August 1, 1904; after having served approximately five years as driver of the hose cart for the village, he was in 1909 appointed fire marshal and continued in that position until April 26, 1934 — a total service of nearly 30 years. The point seems to be that while plaintiff was a fire marshal, and therefore a village officer, from 1909 until 1925 when the paid fire department was started, he was not a fireman during the period covered by these latter dates. This is drawing too fine a point, for manifestly plaintiff was a fireman during all the time he was employed in the actual services as a fireman of the Village of Maywood. It seems to be conceded that he served continuously for the required five years previous to his application and had reached the required age of 50 years.

Some point is made that the pension fund is made up not only by a tax levy but by deductions from the salaries of the firemen, and that plaintiff had never deducted anything from his salary for this purpose until after he had demanded a pension. It is suggested that the payments from May to September, 1931, were made out of a “Firemen’s Benevolent Fund” and not from his salary. Plaintiff testified that he kept up the required payments for the pension fund except for a period when the firemen were working on a half-pay basis, and the amount he owed was afterwards paid in full. Apparently some rule was adopted in 1931 whereby the payments into the pension fund were paid by the members of the fire department “out of the firemen’s fund that we had.” Plaintiff testified that he paid into the pension fund out of his own salary. We think this is sufficient evidence of payment by the plaintiff of the required contributions to the pension fund.

Par. 931, ch. 24, Cahill’s statutes, provides in effect that a permanent fund of $25,000 shall be received and accumulated and retained as a permanent pension fund and that only the excess above that amount shall be available for the purposes of the pension fund. The record shows that at the time of the hearing the total amount in the Firemen’s Pension Fund was not over $4,000.

The order appealed from directed defendants to enroll the name of plaintiff as a beneficiary of the pension fund “of and from the 26th day of May, A. D. 1934,” and it was directed that plaintiff “be paid out of the said pension funds when available for the payment of pensions a monthly pension of One Hundred and Nine ($109.16) Dollars and sixteen cents from and after said date of May 26, 1934. ’ ’

Defendants say that this order is confusing in that plaintiff may claim a superior right to all pension funds over and above $25,000 until he has been paid at the rate of $109.16 a month, accruing from May 26, 1934. Counsel for plaintiff in his brief makes no such claim and concedes that no pension can be paid until the pension fund reaches $25,000, and says that the order so provides.

In Colton v. Board of Trustees of Firemen’s Pension Fund, 287 Ill. 56, it was said of the instant statute, “The statute provided that pensions under it should not be paid until the pension fund amounted to the specified sum, when payments should begin, but, the right existing and being established, the payment, only, was delayed.” See also Smith v. Board of Trustees of Firemen’s Pension Fund, 212 Ill. App. 122, and People v. Board of Trustees of Firemen’s Pension Fund, 220 Ill. App. 242.

To the point that the board of pensions had exclusive power to pass upon such applications and the poprts should pot interfere, it is sufficient to pite

People ex rel. Schelling v. Watson, 276 Ill. App. 303, and cases therein cited. It was there held that the courts will interfere by mandamus when it is shown that any public officer or inferior tribunal is guilty of abuse of discretion.

For the reasons indicated the order is affirmed.

Affirmed.

O’Connor, P. J., and Hatchett, J., concur.


text:
    Beatrice Feldman, Appellee, v. Illinois State Pawners Association et al., Appellants. Logan L. Mullins and David Labowitch, Receivers, Appellees.
    Gen. No. 38,007.

      Opinion filed April 1, 1935.
    Alfred Beck and David Froehlich, both of Chicago, for appellants.
    William A. Rogan, of Chicago, for receivers, appellees; William Cyril Burns and James A. Carlson, both of Chicago, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Illinois State Pawners Association, defendant, appeals from an order approving the final account of two receivers appointed at the instance of complainant. The particular point challenged is the order permitting the receivers to retain out of the properties of the defendant $7,194 as their fees and expenses.

When complainant secured the appointment of receivers of defendant it appealed, and in an opinion handed down by us in case No. 37,413 on March 5,1934, we reversed their appointment (274 Ill. App. 650 [Abst.]). In the opinion we said in substance that the appointment of receivers was not necessary to the preservation of complainant’s rights; that the order did not preserve the corpus of defendant’s business but tended to its destruction, and we held that the appointment “was unprecedented and constituted an abuse of discretion.”

The question presented in this appeal is whether, under such circumstances, the chancellor erred in permitting the expenses of the receivership thus improperly ordered to be charged against the funds of the defendant. It would seem, to be self-evident that it would be inequitable to charge defendant with the expenses of a receivership wrongfully imposed upon it. Otherwise a designing complainant might exhaust the assets of a defendant by having a receiver appointed, however wrongfully, and the innocent defendant compelled to pay the costs.

Highley v. Deane, 168 Ill. 266, involved this question, and in holding that under such circumstances the costs of a receivership should not be taken from the receivership funds the court in its opinion used language peculiarly applicable to the instant case. It was said that if the costs were paid out of the proceeds of an innocent party’s property, “Such a rule would imply that an innocent party, after vindicating his right to his property, might have it taken to pay an expense resulting from the wrongful act of the defeated party. Where the receivership is procured under the assertion of an unjust and wrongful claim, as finally found by the court, and the receiver is authorized to take possession of the property of another on such wrongful assertion, the court can protect the injured party by returning the property of which he was divested without its being diminished to pay receiver’s charges.”

A similar question arose in McAnson v. Martin, 82 Ill. App. 432, where it was said, “that where a receiver has been improperly appointed and the order appointing is vacated or reversed, the receiver should not be permitted to reduce the assets by withholding any part thereof for compensation to himself or for fees of his attorney.” That case was taken to the Supreme Court (183 Ill. 467), which reversed that part of the order denying the receiver compensation from any source, but held, as did the Appellate Court, that where the order is revoked his compensation will not be paid out of the funds placed in his hands, saying: “WTien the appointment of the receiver is upon an application adverse to the defendant in the cause, and i§ without authority of law, the receiver must look for his fees and compensation to the complainant in the suit, upon whose application he was appointed. So, when a receiver obtains possession of money or property under an order, which is afterwards reversed on appeal, and he is required to restore the money to the person entitled thereto, he cannot claim compensation out of the funds in his hands, but must look therefor to the party who secured his appointment.” (Citing cases.) To the same effect are Link Belt Machinery Co. v. Hughes, 195 Ill. 413; Rice Co. v. McJohn, 244 Ill. 264; Burrows v. Merrifield, 243 Ill. 362; Dalton v. Zimmer, 131 Ill. App. 490. In the opinion in Weston v. Watts, 45 Hun. (N. Y.) 219, the question under consideration was discussed at length, with the conclusion that the property of one illegally held by a receiver could not be subjected to the expenses thus illegally created at the instance of another. And in 68 A. L. R. 883, this rule is stated as of universal application.

Receivers cite Harkin v. Brundage, 276 U. S. 36, as holding contrary to the rule, but in that case the necessity for the appointment of a receiver was not questioned. The only point at issue was whether the federal court of this district had the right to appoint a receiver, or whether the superior court of Cook county, which had already appointed a receiver, had such right. Burnrite Goal Briquette Co. v. Riggs, 274 U. S. 208, is not in point. There the receivers appointed were continued after a hearing on the merits. The question there involved was one of jurisdiction of the lower court. So, in Palmer v. Texas, 212 U. S. 118, the appointment of the receiver was virtually by consent. We hold that the rule is well established in this State that a receiver improperly appointed may not reduce the assets by withholding any part thereof for fees or expenses.

The receivers say that on January 27th and 29th, 1934, orders were entered allowing the receivers their fees and that the defendant did not appeal from these orders, and that the time for appeal has passed. The record shows that defendant objected to these orders and the allowance of these fees; at that time the interlocutory appeal questioning the appointment of the receivers was pending* and defendant would not have been justified in appealing from these orders until the propriety of the receivership appointment was determined. It was not until this court reversed the receivership on March 5, 1934, which invalidated the orders depending upon such receivership, that it was clear that the payment of fees out of defendant’s property was unlawful.

Moreover, under the Civil Practice Act an appeal is not limited to any specific order, but the entire record is before us for review and any erroneous action of" the lower court may be corrected if the point is properly preserved.

Some suggestion is made that the receivers were not permitted to show that defendant had, subsequent to the decision of this court, declared a dividend and paid the same to everyone except the complainant, who was a large stockholder in the defendant, and that it was withheld from her so as to indemnify defendant in any loss which it might" sustain by reason of the appointment of receivers. The court properly excluded this evidence as it would have no bearing upon the propriety of permitting the receivers to retain part of the funds of the defendant as their compensation.

It should be understood that we are not denying the right of the receivers to compensation for their services and expenses. We are holding only that these costs may not be taxed against the defendant.

For the reasons indicated, we hold that the court was in error in entering the order of November 5, 1934, which permitted the receivers to retain their fees and expenses out of the funds belonging to the defendant. This order is therefore reversed and the cause remanded with directions to the trial court to order that the receivers return to the Illinois State Pawners Association, the defendant, the stlm of $7,194, and for further proceedings, if necessary, consistent with what we have said in this opinion.

Reversed and remanded with directions.

O’Connor, P. J., and Hatchett, J., concur.


author: Mr. Justice Matchett

text:
    Daniel A. Haymes, Appellee, v. City of Chicago, Appellant.
    Gen. No. 37,600.
    Opinion filed April 1, 1935.
    Rehearing denied April 15, 1935.
    William H. Sexton, Corporation Counsel, and Alexander H. Smietanka, City Attorney, for appellant; Quin O ’Brien and Adam E. Patterson, Assistant Corporation Counsel, of counsel.

      Irving N. Stenn and McKenna, Harris & Schneider, all of Chicago, for appellee; Abraham W. Beussell, of Chicago, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

In the afternoon of January 23,1931, plaintiff, while walking from the Sherman hotel where he worked to his home at 1260 North Dearborn street, slipped and fell, breaking his left leg and sustaining severe injuries. The accident occurred on the west side of the street adjacent to the building known as 408 North Dearborn street, near an alley intersecting* the street at this point. The sidewalk was covered with snow which fell that morning.

Plaintiff sued the city, .filing a declaration of two counts which in substance alleged that defendant negligently permitted an obstruction of snow and ice to form upon the sidewalk and permitted the sidewalk to remain so obstructed. Defendant filed a plea of the general issue, with a special plea of noncontrol of the instrumentality causing the injury. There was a trial by jury, a motion by defendant at the close of all the evidence for an instructed verdict in its favor, which was denied, and thereupon a verdict for plaintiff in the sum of $3,000, on which the court, overruling motions for a new trial and in arrest, entered judgment. Some of the reasons urged for reversal we will not discuss at length, although we have given consideration to them without finding reversible error. These are that the statutory legal notice was deficient and not in fact received in evidence; that the court erred in permitting expert witnesses to give answers invading the province of the jury, and that there was error in the giving and refusing of instructions.

We pass from these to the controlling question in the case, namely, whether the court erred in refusing to direct a verdict for defendant at the close of all the evidence.

There is little conflict in the evidence. Plaintiff and two other witnesses testified to the occurrence, and these and other witnesses testified as to the condition of the sidewalk and building before and at the time of the accident.

Plaintiff says that he walked at his usual brisk rate, paid no attention to the snow covering the sidewalk and noticed nothing unusual about it. It was a little after noon; he had passed the building at other times and it seemed to be unoccupied; as he was walking in a northerly direction and a few feet from the alley his feet flew from under him, and he fell on his spine and on his head; he was bleeding and his left leg was broken. He says he noticed his overcoat had brushed the snow off the sidewalk, disclosing a streak of ice thereunder, upon which he had slipped.

Mr. Bitter, a salesman driving in this vicinity, picked up plaintiff and took him home in his automobile. Bitter testified he noticed the icy condition of the sidewalk; that it was icy within a foot or two of the edge of the alley; that there was an icy patch which was narrower at the building line than at the edge of the curb; at the building line it covered a space of perhaps a half foot, at the sidewalk, two or three feet, and at the curbing four or four and a half feet. The sidewalk slanted toward the street. He identified defendant’s Exhibit 1 as a true representation of the premises and the sidewalk, disregarding, however, the ice. The temperature on this day was about at the freezing point. He noticed a crack at the building line that had formed a sort of trough which allowed the water to drain down on the sidewalk. He also noticed a crack which extended from the roof down to the sidewalk line and which was about 30 or 35 feet in length and about two to three and a half inches wide at the top, dwindling down to about an inch and three-quarters at the center of the building and about nothing at the sidewalk line and stopping below the sidewalk. He says he had passed this place about three days previous to the accident. The building seemed deserted and ice and snow were on the sidewalk.

A witness named Heizer testified he was in the vicinity of the accident two or three times a week from the first of the year until February 12th; that the general condition of the street was slippery; that on January 10th, 11th and 12th the building was covered with ice and icicles. About that time he, the witness, slipped and fell upon the ice and found it to be rough ice, about a foot wide next to the building and probably three to five feet wide and four or five inches high at the sidewalk. He also testified that there were cracks in the side of the building and icicles on top of the firewall and on a ridge three or four feet above the doorway.

Mr. Names, who took care of the building, testified for defendant that he saw the building and the sidewalk January 23,1931, and that the same were in good condition. There was, he says, a crack above the door which zigzagged a little and ran down, the crack had been filled up and painted red years before, and there was another crack between the ledge and the second or third floor, about a foot north of the first one.

There is much conflict of authority in courts of different jurisdictions on the question of when a city is liable by reason of the presence of ice and snow upon its sidewalks. The cases are collected and classified in a note to Bailey v. Oil City, 80 A. L. R. 1148, which is supplementary to a similar note in 13 A. L. R. 17. The subject matter of these notes excludes cases where the condition caused by ice and snow concurs with a defect in the sidewalk.

The subject has received consideration by the courts of this State in Graham v. City of Chicago, 260 Ill. App. 590, affirmed 346 Ill. 638, where the cases in this and other jurisdictions are cited and analyzed. In that case the city negligently permitted" water from an adjacent playground to flow over and upon a sidewalk. The water froze, causing the surface of the sidewalk to become slippery and unsafe. The city allowed the sidewalk to remain in that condition for 13 days. A judgment for plaintiff was affirmed. This court, citing Hubbard v. City of Wood River, 244 Ill. App. 414, approved of a statement there made that the presence of hills and ridges of ice and snow were not necessary conditions precedent to a city’s liability. The opinion further states:

“Here, the liability of defendant is predicated upon the affirmative act of the defendant through its agents in causing the overflow of the skating pond so as to cause an icy strip across the sidewalk. Manifestly, the situation does not come within the rule that the city will not be liable for icy and slippery conditions which are general. Here, the slippery condition was occasioned by the careless manner in which the skating pond was flooded across the sidewalk. Under such circumstances the city must be held responsible.” The Supreme Court affirmed the Appellate Court. Graham, v. City of Chicago, 346 Ill. 638. The court said there was one rule which was “almost” universal. This rule is that a city is not liable for injuries resulting from the general slippery condition of its streets and sidewalks due to the presence of ice and snow which had accumulated as a result of natural causes. A contrary rule, the opinion says, would be unreasonable in this latitude and climate. It is pointed out that some jurisdictions, on the contrary, hold that it is immaterial whether the slipperiness is caused by natural or artificial means and cases from those jurisdictions are cited. However, without analyzing these cases the Supreme Court said that the rule exempting cities from such liability was based on necessity, and continued:

“But the rule must be predicated on the formation of ice from natural causes, for it would be neither unreasonable, impracticable nor expensive, as a general proposition, to compel the removal of ice from sidewalks which was produced by artificial causes.” The opinion also considers cases-in which ice formed on the sidewalk from the freezing of water from downspouts and points out that in those cases it was not claimed that liability arose from diverting the flow of rainfall but becanse ice had formed in an artificial and unnatural way and the city had neglected to make the condition reasonably safe.

In the instant case the ice upon which plaintiff fell was not formed in an artificial but, on the contrary, in a natural way. No human agency for the City of Chicago is responsible and proximately contributed to the condition of the sidewalk which brought about plaintiff’s fall. If it had not been for the snow, the ice would not have been necessarily dangerous and the fall could have been avoided by the exercise of due care. We think it may not be said under the evidence (assuming the existence of the cracks in the building to which some of the witnesses testified) that the cracks were brought about artificially by any agency for which defendant city should be required to respond in damages.

We hold the rule of nonliability for conditions which are the result of natural causes precludes a recovery here. The evidence does not bring plaintiff’s case within any recognized exception to that rule. For this reason the instruction in its favor requested by defendant at the close of all the evidence should have been given.

For the error in that respect the judgment is reversed.

Reversed.

O’Connor, P. J.., and McSurely, J., concur,


text:
    Robert Wilson and William Wilson, Trading as Fullerton Wood Company, Appellants, v. Joseph L. Gill, Clerk of Municipal Court of Chicago, Appellee.
    Gen. No. 37,842.
    Opinion filed April 1, 1935.
    Heile, Cavehder, Milchrist & Kaiser, of Chicago, for appellants.

      Frederick Arnd and Hiram T. Gilbert, both of Chicago, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

February 1, 1934, plaintiffs filed a petition for mandamus against Gill as clerk of the municipal court of Chicago to compel him to deliver to plaintiffs a writ of capias ad satisfaciendum upon a judgment they had theretofore obtained in the municipal court. Defendant answered the petition and the cause was heard upon a stipulation to the effect that the facts were as averred in the petition and answer.

It appears from the petition that Joseph Gill, as clerk of the municipal court of Chicago, has charge of the records, proceedings and files thereof; that on August 18, 1933, plaintiffs began a tort action in the municipal court against one Raymond Byrnes, wherein malice was the gist of the action; that the statement of claim alleged that plaintiffs employed defendant as salesman and collector, and that while so employed defendant collected money aggregating $182.10, which sum, although it belonged to plaintiffs, defendant maliciously, fraudulently and wrongfully converted to his own use; that defendant was personally served in the cause; that the cause was regularly reached for trial and judgment entered September 8, 1933, finding defendant guilty as alleged in plaintiffs’ statement of claim and assessing plaintiffs’ damages at $182.10; that said judgment remains in full force and effect and unsatisfied. The petition also avers that on January 24, 1934, and on various dates prior thereto, plaintiffs requested Gill, as clerk, to issue and deliver a writ of capias ad satisfaciendum in their favor against defendant. The clerk refused and still refuses to issue the writ, for the reason, as he insists, that he is directed by a rule of the municipal court, which was regularly adopted by the judges of that court not to do so. The rule, as set up in the answer, reads:

“Mo execution shall issue against the body of the defendant except when the judgment shall have been obtained for a tort committed by the defendant, or unless such defendant shall have been held to bail upon a writ of capias ad respondendum as provided by law, or he shall refuse to deliver up his estate for the benefit of his creditors, nor shall the same be issued by the Clerk without a special order of Court.” This rule has been in force at all times since and prior to the filing of the petition for mandamus.

In his answer the clerk alleges that he refused to issue the writ as requested because plaintiffs did not secure a special order of the court in compliance with said rule; that on or about January 31, 1933, defendant received from the chief justice of the municipal court a letter which in part reads as follows:

“You will note that no body execution shall be issued by the clerk without a special order of Court and that the person receiving the same shall immediately deliver the writ to the Bailiff for service.”

The circuit court found from these facts that the rule was valid and that it was the duty of the clerk to observe and follow it; that plaintiffs had no right to demand of the clerk a writ of capias ad satisfaciendum until they had complied with the rule. An order denying the prayer of the petition for mandamus and dismissing the petition was entered. From that order this appeal has been perfected.

The only point argued is that the court erred in refusing to award the writ. Plaintiffs contend that notwithstanding the rule of court they were entitled to the capias and rely on People v. Walker, 286 Ill. 541. In that case the plaintiff moved the circuit court for an order directing the clerk to issue a capias ad satisfaciendum against the defendant. The court denied the motion, whereupon the plaintiff filed an original petition for mandamus in the Supreme Court, praying that the trial judge order the clerk to enter the writ. The Supreme Court denied the prayer for the writ, saying :

“There was no necessity for an application to the court for an order directing the clerk to issue the writ, for the statute authorized it in the same terms as an execution against the defendant’s property. By force of the judgment it was the duty of the clerk to issue the writ upon the request of the plaintiff.” Plaintiffs also rely on Reinwald v. McGregor, 239 Ill. App. 240, where this court said:

“Where a judgment is entered in a tort action, it is the duty of the Clerk of the Court in which the judgment is entered to issue a writ of capias ad satisfaciendum upon request.” Neither the Walker nor the Reimvald case involved any question as to the validity of any rule of court. The cases are therefore not authority for the proposition to which they are cited.

Plaintiffs cite other cases, such as Rozier v. Williams, 92 Ill. 187, and Hopper v. Mather, 104 Ill. App. 309, which follow the general rule as stated in the Rosier case:

“While circuit courts, and other courts of record, have undoubted power to make all reasonable rules for the transaction of the business of the courts, yet their rules must be in furtherance of law, and not in contravention of it. All rules of court must be subordinate to the general laws of the State, and such as are not are binding on no one. Nor is it competent for such courts to make rules whereby they may obtain jurisdiction of a cause, where it is not conferred by the general law. Linnemeyer v. Miller et al., 70 Ill. 244; Fisher v. National Bank of Commerce, 73 id. 34; Hayward v. Ramsey, 74 id. 372; Benson v. Johnson, 90 id. 94.”

We think the above opinion correctly states the rule of law applicable, but we are further of the opinion that the rule of court set up in stipulation is not invalid as being in contravention of the statute or any other general law. Indeed, the rule is substantially in the language of the statute with the exception of the last clause which provides that the writ of capias ad satisfaciendum shall not be issued without a special order of the court. A court of record has inherent power to makes rules of practice. 18 Ency. Pl. & Pr., page 1236. The municipal court of Chicago by sections 19 and 20 of the Municipal Court Act is given specific power so to do. City of Chicago v. Coleman, 254 Ill. 338; Cahill’s Ill. Rev. Statutes 1933, ch. 37, 407, 408, pp. 948, 949. The rules, of course, must not be inconsistent with the statutes in relation to substantive law or in violation of any constitutional provision.

The rule here set up in the answer is a rule of practice and is not, in our opinion, inconsistent with the constitution or with any statute in relation to substantive law. It does not purport to take away from the creditor the right in a proper case to have his writ as provided by the statute. It merely provides that application for the writ should be made by the party entitled to it, in the first instance, to the court rather than'the clerk. This provision does not seem unreasonable and seems well designed to prevent any abuse of the process of the court. There are many cases in the books where after the issuance of such writ its legality has been tested by a motion to quash, and so far as we know it has not been denied that the court has jurisdiction to hear such motion. A court always has control of its own process. The rule set up in the answer, as we understand it, is not in contravention of the statutes but in aid thereof to the end that the enforcement of the same may be conducted in a proper and orderly way.

The circuit court did not err in denying the writ of mandamus. Its order is therefore affirmed.

Order affirmed.

O’Connor, P. J., and McSurely, J., concur.


text:
    Central Republic Trust Company, Appellant, v. Petersen Furniture Company, Appellee.
    Gen. No. 37,861.
    Opinion filed April 1, 1935.
    Rehearing denied April 15, 1935.
    Deerees, Buckingham, Jones & Hoeeman, of Chicago, for appellant; Don Kenneth Jones and Thomas R. Mulroy, of Chicago, of counsel.

      Samuel Petersen and Lewis S. Baton, both of Chicago, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

This suit is in assumpsit on a lease under seal for rent. The facts are not in controversy.

The premises are known as 1651-59 West Ogden avenue, in Chicago. March 10, 1926, the owner trustees leased the premises to defendant, Petersen Furniture Company, for a period of 15 years. The total rent reserved was $172,200, payable in monthly instalments of $500 until May 31, 1928, $700 from June 1,1928, to May 31,1931, $1,000 from June 1,1931 to May 31, 1936, and $1,250 from June lj 1936, to May 31, 1941. July 31, 1926, the premises were conveyed to Ralph W. Hartwig. August 1, 1928, Hartwig and his wife conveyed the premises by trust deed to the Cody Trust Co. to secure a loan of $70,000. Thereafter, on August 20, 1928, Hartwig and his wife conveyed the premises subject to the trust deed to the Chicago Title & Trust Co. as trustee under Trust No. 12806. May 20, 1932, the Chicago Title & Trust Co., as trustee, conveyed the premises to Miles E. Barry.

June 6, 1932, defendant entered into an unrecorded agreement with Barry, by which the original lease of March 10,1926, was canceled as of November 30, 1932, in consideration of $6,000. Defendant Furniture Company made no investigation of the title held by Barry other than inquiries of him and of his agents. The evidence, however, shows that the original lease was presented by Barry at this time. August 1, 1932, default was made in the payment of interest upon the indebtedness secured by the trust deed of August 1, 1928. August 8, 1932, the Cody Trust Co. made a written demand on defendant for all rents thereafter accruing. No rent was paid, and this suit was then brought in assumpsit to recover the rent for September, October and November, 1932, amounting to $3,000. Defendant pleaded the general issue and a special plea that on June 6, 1932, he entered into an agreement under seal with “the owner” of the premises, whereby the lease for a consideration of $6,000 was canceled, and that he thereafter surrendered possession of the premises and was therefore not indebted.

Plaintiff moved to strike the affidavit of merits. The motion was denied, and plaintiff has caused the proceedings to be preserved by a bill of exceptions. The Cody Trust Co. having resigned, the Central Republic Trust Co. was appointed its successor and substituted as plaintiff in the suit.

The cause came on for trial March 30, 1934, the court found the issues for defendant, plaintiff moved in arrest of judgment, which was denied, and final judgment was entered in favor of defendant. Plaintiff has perfected this appeal from that judgment.

The question for decision is whether a lessee of premises which were subsequently conveyed, together with rents, issues and profits, as security for a debt may (before default) by agreement with the owner of the reversion pay the rent in advance and cancel the lease, in the absence of a notice from the mortgagee of his intention to appropriate the rents to his debt.

The answer to this question must depend upon the nature of the interest taken by the grantee in a conveyance of land by way of mortgage — a matter which has been the subject of conflicting decisions in many jurisdictions. In Pomeroy’s Equity Jurisprudence, 4th ed., vol. 3, sec. 1179, p. 2784, the author points out that the distinctive feature of the English law on this subject (prior to the passage of the judicature acts 36 and 37, Victoria, eh. 66, sees. 24 and 25) was that the legal title to the premises by means of the mortgage conveyance was both in law and in equity transferred to the mortgagee. The judicature acts by the provision that rules of equity should prevail over rules of law when conflicting necessarily modified that prior purely legal theory of mortgages in England. For this reason the earlier English authorities on this subject are unreliable.

In most of the American States the law on this subject has been developed uninfluenced by the decisions of the English courts. In some of the States the legal theory obtains. In such jurisdictions usually the mortgagee takes the legal title with its incidents, including the right to appropriate the rents. In others the equitable theory is adopted. In such States it is held that the mortgage is a mere conveyance as security; that the mortgagor retains the legal right and the mortgagee has only a lien on the premises conveyed as security for his debt. The difference between these two theories is well explained in Jones on Mortgages, 8th ed., vol. 2, par. 978, pp. 361, 362. The author states:

“A lease already existing at the date of the mortgage is in no way invalidated by the giving of the mortgage. It is then a paramount interest, and the mortgage is subject to it. The mortgagee has only the right of the mortgagor as against the lessee.

“In jurisdictions holding that the mortgagee has the legal title, the effect of a mortgage given subsequent to a lease will be to make the mortgagee the ' reversioner and landlord in place of the mortgagor. But in jurisdictions where the mortgage does not transfer the legal title to the mortgagee the execution of a subsequent mortgage can have no such effect. In order to be entitled to the benefits of a lease made by the mortgagor, or to collect rents thereunder, the mortgagee must have obtained actual possession of the premises, or entered for the purpose of foreclosure upon breach of condition, or accepted the lessee as his tenant by attornment, or procured the appointment of a receiver.

‘ ‘ The mortgagor may, of course, at the time of making a" mortgage of the reversion, release the tenant from the payment of the rents accrued at that time; but otherwise the rent then accruing goes with the reversion, and the mortgagee is entitled to it if he gives the tenant notice before the rent day.”

In Eeeve Illinois Law of Mortgages and Foreclosures, vol. 1, pp. 3 to 10, the author describes the common law and equitable theories, notes the influence of the civil law upon the common law, including the borrowed conception that a mortgag*e is a mere lien or security and points out that in Illinois neither the legal theory of mortgages nor the lien theory prevails, but that the common law doctrine as modified by equitable principles is in force. The author says:

“The law courts, following the rule first set up in equity, also have come to recognize mortgages of all kinds to be exactly what they are — mere securities. The title may be differently regarded and differently treated in different forums, but the actual fact that, until foreclosure has been in 'some way had, the mortgagor has an interest in the property, is recognized at law as well as in equity. While courts have spoken and frequently do speak of the title of the mortgagee being absolute after default, they do not mean that the ownership of the mortgagee is absolute. Nowhere is it now held that, upon forfeiture, the mortgagee may sell the property, give it away, or destroy it, without reference to or consideration for any right or interest of the mortgagor.

“Under this doctrine a mortgage is regarded as a mere security and as no more than an incident to the debt or principal obligation; yet it confers the right to reduce the premises to possession as a means of obtaining satisfaction of the debt, and to render this right effective, ejectment will lie against the mortgagor at any time when a recovery may be had on the debt.”

It is apparent that if the conception that a mortgage merely conveys a lien or security is to obtain there would be no privity of contract between a prior lessee of premises with the subsequent mortgagee of the same premises, and that the mortgagee could therefore not sue the lessee to recover rent. Where the mortgage, however, is held to have conveyed the legal estate by virtue of the provisions of the statute of 32 Henry VIII, ch. 34, secs. 1-5, the conveyance of the reversion effects an assignment of the rents (and by virtue of the statute of 4 and 5 Anne, ch. 16, sec. 9, the necessity of attornment having been dispensed with) the holder of the reversion can maintain an action for the rent. These English statutes have been re-enacted substantially in Illinois as sections 14 and 15 of the Landlord and Tenant Act. (Cahill’s Ill. Rev. Stats. 1933, ch. 80, 1ffll4 and 15, p. 1748; Barnes v. Northern Trust Co., 169 Ill. 112.) It is apparent therefore that the question of whether the mortgagee here can recover the rents depends upon whether the interest in the land conveyed by mortgage is such as to draw to it and make applicable the provisions of these two sections.

In Tiffany on Landlord and Tenant, vol. 1, sec. 146e, p. 872, the author says:

“The landlord, whether the original lessor or his transferee, may execute a mortg'age upon the land, which, like an absolute conveyance, will ordinarily be subject to the prior lease, that is, it will not affect the right to possession under the lease. In jurisdictions where a mortgage transfers the legal title, the effect will be to make the mortgagee the reversioner and the landlord in place of the mortgagor. In other jurisdictions it can have no such effect.” A note to Glidden v. Second Ave. Invest. Co., L. R. A. 1915 C, p. 200, considers the effects of transfers by way of mortgage as to prior leases. It says:

“In jurisdictions where a mortgage creates only a lien to secure a debt, and does not pass title until default, foreclosure, and sale, no question can arise prior to foreclosure in case the reversion is covered by a mortgage given pending the lease, since there is no transfer of the reversion. . . .

“But where a mortgage passes title to the mortgagee, subject to defeat by payment of the debt, a mortgage executed by the lessor after the execution of the lease transfers the reversion to the mortgagee. In such case the mortgagee, as .transferee of the reversion, becomes the landlord to the lessee, upon giving notice to the latter of the transfer, and of his desire to receive the rents, etc.” In support of this statement the note cites Moss v. Gallimore, 1 Dougl. K. B. 279, 18 Eng. Rul. Cas. 404, which is followed by the later case of DeNicholls v. Saunders, L. R. 5, C. P. 589, upon which the plaintiff here strongly relies.

Early Appellate Court opinions in this State are not in entire harmony. Apparently some follow earlier cases which held that a conveyance by way of mortgage transferred a fee in the land. In Scheidt v. Belz, 4 Ill. App. 431, plaintiff sued upon a lease assigning as breach that defendant did not pay the rent, etc. Defendant asked leave to file pleas which set up that after the execution of the lease the lessors conveyed to Belz and assigned to him the lease declared on, and that defendant thereafter paid the rent to him as the assignee of the reversion. The court refused leave. The opinion of the court points out the statute of Henry, saying that the evidence showed that the lessee had attornéd, which was then necessary (Fisher v. Deering, 60 Ill. 114) and reversed the judgment. It was urged that the deed to Belz was in fact a mortgage. The opinion says:

“Even if this were so, a mortgagee of the reversion stands in the same position as a grantee, and is entitled to the rents if he elects to take them, and can after attornment sue for and recover them from the tenant; 4 Kent Com. 16A-354; King v. Housatonic R. R. Co., 45 Conn. 226; Moss v. Gallimore, Doug. 279; especially in this case, as he was to receive the rents to apply on the indebtedness, if in fact the conveyance was designed as a mortgage.”

In Disselhorst v. Cadogan, 21 Ill. App. 179, certain heirs of William Cadogan, who had demised the premises to defendant, sued for the rent. The lessee had paid this rent to the grantee of a purchaser under partition proceedings. Plaintiffs recovered, but the judgment was reversed, the opinion stating:

“It is elementary law that rent is an incident of the reversion. An unqualified grant of the demised premises passes the rent thereafter accruing. Crosby v. Loop, 13 Ill. 625; Dixon v. Niccolls, 39 Ill. 372; Hardin v. Forsythe, 99 Ill. 312; Epley v. Eubanks, 11 Ill. App. 272. A conveyance by operation of law, or under a trust deed or power of sale in a mortgage, or by a Master or Sheriff under a decree or execution that is valid against the lessor, will be as efficacious as a deed from him directly. Whatever unqualifiedly passes his reversion will pass the rent thereafter accruing. Carson v. Crigler, 9 Ill. App. 83; Epley v. Eubanks, 11 Ill. App. 272.”

In Reed v. Bartlett, 9 Ill. App. 267, the owner, Oliver Woolf, executed a mortgage to one Gulliver and thereafter conveyed the premises to John Woolf and F. G. Garfield, who leased it to defendant who went into possession and occupied until January 5, 1880, when he surrendered the same to the lessor. In the meantime Gulliver foreclosed. August 28, 1879, the property was sold to one Hitchcock, who thereafter took out a deed to the premises. In September Hitchcock went on the premises, notified defendant, and verbally demanded that he surrender the same, which he refused to do. Defendant also refused to pay rent. Hitchcock began suit and afterward conveyed the premises to plaintiff, to whom he gave an order on defendant to pay the rent. There was a trial by jury and verdict for defendant, on which judgment was entered. The judgment was affirmed by the Appellate Court. The court said:

“The purchaser at the mortgage sale became the owner of the premises in fee; and could have treated the occupant as a trespasser and recovered the possession by ejectment without notice, or in forcible detainer under the statute, and when evicted under the paramount title of the mortgagee neither the mortgagor or his lessee would be entitled to the emblements. . . .

“But the purchaser cannot distrain for rent, or bring an action to recover it, unless the tenant has attorned to him, as the relation of landlord and tenant does not exist between them.”

In David Bradley & Co. v. Peabody Coal Co., 99 Ill. App. 427, it appeared that Bradley & Co. had leased certain premises in Council Bluffs, Iowa, for a term of eight years from one Wright, the rental to be paid at specified periods with the exception of one instalment for which no time for payment was agreed upon. Wright executed a mortgage to Peabody, the president of the Peabody Coal Co. Wright defaulted. The mortgagee foreclosed. The mortgagee did not redeem. A deed issued to the coal company, assignee of the mortgagee. Prior to the execution of the deed the instalment of $1,000 rent had been paid in advance to Wright by Bradley & Co. Whether the payment was made before or after the foreclosure sale did not appear. No notice of the foreclosure proceedings had been given to Bradley & Co. The Peabody Coal Co. sued Bradley & Co. for this instalment of rent and in the lower court recovered judgment. This court held that the payment was proper and reversed the judgment. The opinion said:

“We have no doubt as to the effect of the mere giving of the mortgage. It imposes no limitation upon the right of lessor (who was the mortgagor of the reversion) to receive, or the right of the lessee to make, payments in advance or otherwise, of the rent provided by the terms of the lease. If a mortgagee can be held to be a grantee of the reversion in whom the right to rents under the lease vests by force of the statute, as held in Scheidt v. Belz, 4 Scheldt. App. 431, yet, as suggested in that case, his right would only operate upon the lessee after he had notified the lessee that he elected to claim the rents as mortgagee. A somewhat different question arises as to the effect of the foreclosure sale. But we think that the sale could not affect the relation of appellant as lessee to Wright as lessor, to make payments of rent ineffectual when made after such sale, unless a notice of the sale was given to appellant. . . .

“We are therefore of opinion that appellee acquired no right to the rent in question by reason of the mortgage or the sale upon foreclosure of the same, unless a notice of claim to rents under the mortgage or notice of sale was given to appellant.”

The history of the development of the law of mortgages in Illinois has been written so often that it would be superfluous to repeat it. The evolution of the law of this State from Fitch v. Pinckard, 4 Scam. (Ill.) 69, is covered by the opinion of Justice Cartwrigrht in Lightcap v. Bradley, 186 Ill. 510. In that case the nature of the right of a mortgagee who had purchased the land under foreclosure was discussed. The opinion states:

“The purchaser of land under an execution of the foreclosure of a mortgage has no legal title, or right to be invested with a legal title, until the time allowed for redemption has expired. (Rockwell v. Servant, 63 Ill. 424.) The certificate of purchase confers on the holder no title in the land. (Huftalin v. Misner, 70 Ill. 55.) In Hays v. Cassell, 70 Ill. 669, it was said (p. 672): ‘The certificate of purchase conveyed no title to the purchaser, nor did it disturb the possession of the defendant. That still continued in him, and would so remain until fifteen months had elapsed and his title transferred by the sheriff’s deed.’ ”

In Williams v. Williams, 270 Ill. 552, the opinion states:

“It is true, as plaintiffs in error contend, that in the case of a common law mortgage the mortgagor is the legal owner of the mortgaged property as against all persons except the mortgagee or his assigns. (City of Chicago v. Sullivan Machinery Co., 269 Ill. 58.) The mortgagor’s interest in the land may be sold under execution; his widow is entitled to dower in it; it passes as real estate by devise; it descends to his heirs as real estate upon his death, intestate; he may maintain an action for the land against a stranger and the mortgage cannot be set up as a defense. On the other hand, the mortgagee has no such estate as can be sold under execution; his widow has no right to dower in it; upon his death the mortgage passes to his personal representative as personal estate and passes by his will as personal property. The mortgagor may convey his title or mortgage it to successive mortgagees, and his grantee or mortgagee will succeed to his estate and occupy his position, subject to the incumbrance. (Lightcap v. Bradley, 186 Ill. 510.) ”

In the later case of Rohrer v. Deatherage, 336 Ill. 450, the relation of mortgagor and mortgagee where the rents are pledged as part of the security is specifically discussed. The opinion states:

“The first proposition of the plaintiff in error that the inclusion in the Bohrer mortgage of the rents, issues and profits of the land, with the land itself, would not alone deprive the mortgagor of the right to receive the rents for his own use until the mortgagee took some steps to enforce his lien upon the rents and profits, is a correct statement of the law and is supported by the authorities cited. The mortgagor is entitled to his rents until a receiver is actually appointed, and the receiver cannot collect rents already paid to the mortgagor. . . . After condition broken, however, the mortgagee is, as between him and the mortgagor, the owner of the fee. . . . The mortgagor has the right to sell or make leases of the premises, and his grantee or lessee will have the right of possession until default in the terms of the mortgage, but the mortgagor cannot make a lease of the mortgaged premises which will give greater rights than he himself possesses or will interfere with the right of the mortgagee to enter for condition broken. After condition broken, ejectment may be maintained by the mortgagee against the mortgagor or those to whom he may have assigned the equity of redemption.” Pointing out the rights of a mortgagee after default as distinguished from those which existed before default, this opinion further states:

“Upon default in the condition of the mortgage the mortgagee has the right to possession against the mortgagor, his grantee, lessee or anyone claiming under him by any right. In such case the mortgagee has several remedies which he may pursue to enforce the payment of his debt. He may sue the mortgagor in assumpsit for a judgment upon the personal obligation; he may sue in equity for the foreclosure of the mortgage; or he may recover the possession of the mortgaged property by an action of ejectment. These remedies are concurrent or successive, as the mortgagee may deem proper, and he may pursue any two or all three of the remedies simultaneously.”

In a later case the right to bring forcible entry and detainer to get possession, has been added. West Side Trust & Savings Bank v. Lopoten, 358 Ill. 631. The interest taken by a mortgagee has been also discussed in the recent case of Wolkenstein v. Slonim, 355 Ill. 306, affirming 270 Ill. App. 473, where the court said:

“A mortgage conveys title as between the mortgagor and the mortgagee, but it is only a qualified title as security for the creditor during the existence of the debt. The mortgagor is regarded as the owner of the land for all beneficial purposes, subject only to the rights of the mortgagee. After condition broken, the mortgagee is, as between himself and the mortgagor, the owner of the fee, and he may maintain ejectment against the mortgagor or the owner of the equity of redemption. Upon default he has the right to possession against the mortgagor, his grantee, or anyone claiming under him by any right.”

To sum up, it would appear the result of all the Illinois cases is that a mortgagee, so long as the mortgagor keeps the covenants of the conveyance, has nothing more than a lien upon the land for the security of his debt; that after condition broken, that is, upon failure to keep the covenants, the lien is converted into a legal estate, and the mortgagee becomes to all intents and purposes both in law and in equity the owner of a determinable fee. Wolkenstein v. Slonim, 270 Ill. App. 473. If this is a correct view of the situation, we think it follows that since the conditions of the mortgage had not been broken prior to the time defendant paid the rent to the holder of the equity, and since the mortgage was subsequent in point of time and therefore subordinate to the lease, defendant and the lessor had a right to make such agreement with reference to the rents by way of anticipation, or otherwise, as they pleased. While the precise question has never been decided, we think this result follows by necessary inference from the rules of law applicable, which have been heretofore set forth. The rule may seem unjust to the mortgagee. The answer is that it could have protected itself by requiring appropriate assignment and delivery of the lease with covenants.

For the reasons indicated the judgment of the trial court is affirmed.

Affirmed.

McSurely, J., concurs.

0 ’Connor, P. J., specially concurring: I agree solely with the result reached.