author: Mr. Justice Kiley

text:
    In re Petition of Reuben Ekendahl and Ethel Ekendahl, to Adopt Demetrios Svolos, Minor, Appellees, v. Athena Topol, Appellant. Eletrios Svolos, Defendant.
    Gen. No. 42,354.

      Heard in the third division of this court for the first district at the October term, 1942.
    Opinion filed February 2, 1944.
    John H. Lyle and Edward T. Havey, both of Chicago, for appellant; Alfred F. Beck, of Chicago, of counsel.
    Edward E. Fleming, of Chicago, for appellees.
   Mr. Justice Kiley

delivered the opinion of the court.

This is an adoption proceeding with a decree in favor of petitioners from which the natural mother seeks to appeal. A motion was made in this court to dismiss the appeal on the ground that no appeal lies from an adoption decree. The motion was taken with the case and decision on it is vital.

The common notion appears to be' that there is no right to a review of a decree of adoption. In Meyers v. Meyers, 32 Ill. App. 189, the action of the circuit court dismissing a mother’s appeal in an adoption proceeding was - approved on authority of People ex rel. Fullerton v. Gilbert, 115 Ill. 59, and the court said the adoption proceeding did not bind the parents since they were not parties and that they-should seek their relief in a writ of habeas corpus. This was prior to the 1907 Act which required that parents be made defendants. The Gilbert case decided that insanity proceedings being summary in nature, an appeal therein leaving patients at large, would be a frustration of the purpose of the Act; and that the law thereunder consideration provided by its terms a speedier remedy in habeas corpus proceedings. There was no question there of a writ of error. In re Warner’s Petition, 193 Ill. App. 382, the decision in the Gilbert case was extended to an “appeal” in adoption proceedings because it also was a summary proceeding; and the court followed the Meyers case, although under the act then in force parents were indispensable parties. In Holman v. Brown, 215 Ill. App. 247, and Dixon v. Haslett, 232 Ill. App. 152, writs of error to review adoption proceedings were dismissed. Generally, the writ of habeas corpus has been, used to test adoption proceedings (Sullivan v. People, 224 Ill. 468; People v. Cole, 238 Ill. App. 413; 322 Ill. 95; and People ex rel. Witton v. Harriss, 307 Ill. App. 283), in which counsel for the relators conceded “that because the statute gives no appeal from an order entered in an adoption proceeding in the county court, the only remedy is by habeas corpus.

A parent cannot find relief in every adoption proceeding by virtue of habeas corpus, for the inquiry under that writ does not go beyond the question of jurisdiction. People v. Hazard, 356 Ill. 448; People v. Siman, 284 Ill. 28; People ex rel. Witton v. Harriss, 307 Ill. App. 283; Ashlock v. Ashlock, 360 Ill. 115. Habeas corpus here would not serve the mother’s purpose for, in addition to her challenge of the court’s jurisdiction, she attacks the decree on the merits. The decree finds in effect that she abandoned and deserted her child and that, by reason thereof and her failure to maintain or assist in his maintenance, she is unfit to have his custody. Under our Adoption Act, ch. 4, Ill. Rev. Stat. [Jones Ill. Stats. Ann. 19.001 et seq.], a child may be adopted with the consent of its parents or those in place of parents;' or with consent of one parent where the other is unfit; or without consent where both parents are unfit; or where the parents or others having right to consent have been deprived of custody by a court (section 3). The grounds of unfitness are specified in the section and include: . . (e) abandonment of the child, or (f) desertion of the child for more than six (6) months, etc.....” Parents, now necessary parties, may answer as the mother did here and make issue on the allegations and the petition. The purpose of the Act serves unfortunate children, charitable adoptive parents, and the State very well, and every reasonable means should be employed to accomplish the purpose'. Where consent is given or default made in answer by necessary parties, no difficulty arises, but where parents answer and contest the charge of unfitness and conflicting evidence is heard and a decree entered based on the court’s findings from the evidence, consideration of the rights of natural parents must be admitted in viewing the purpose of the Act. Where parents are fit persons, the natural family should be kept together if'possible. A great responsibility rests on a court in deciding that natural parents are unfit to have their own children, in depriving the parents of all rights over the child, and freeing the child of all obligations to them, (section 8.) If there is no right to review in proceedings of this kind, we share the concern of this court in the case of People v. Cole, 238 Ill. App. 413, over the predicament of natural parents under the state of the law on this point in Illinois.

In Superior Coal Co. v. O’Brien, 383 Ill. 394, 402, Mr. Justice Wilson in an exhaustive survey of the general subject of review in statutory proceedings in Illinois, said:

“It is established that in proceedings purely statutory and unknown to the common law, involving property rights or personal liberty, where no method of review whatever is provided but a writ of error is not expressly forbidden, a writ of error is allowed as a matter of right.”

Adoption proceedings are purely statutory and no appeal or other method of-review is provided in the act, but neither is writ of error expressly forbidden. The question remains whether personal liberty or property rights are involved. In Holman v. Brown, there was no claim that any property rights or liberty of any of the parties were involved. In Dixon v. Haslett, the court held that neither the property rights of the grandmother, plaintiff in error, nor the personal liberty of the infant was involved. In our view, to deny the natural mother her right to review under the circumstances in this case, would be to hold that a mother’s child means less to her than her property or liberty. We believe that she had a right to sue out a writ of error from this court to review the adoption decree under the policy of this State. Haines v. People, 97 Ill. 161; Superior Coal Co. v. O’Brien. The right has not been affected by the 1935 amendment to the Adoption Act which withholds the act from the appeal provisions of the Civil Practice Act, (par. 13) for the amendment left the right to review as it was theretofore by writ of error. The mother here improvidently filed notice of appeal, under the Civil Practice Act. We believe the liberal spirit of the day would condemn a refusal to consider her case for that reason. The motion to dismiss the appeal is, accordingly, denied.

The mother says the petition was insufficient under the Act and relies upon Musselman v. Paragnik, 317 Ill. 597 and Keal v. Rhydderck, 317 Ill. 231 to render it defective for failing to state the sex of the child, and upon People v. Frentz, 256 Ill. App. 259, because the allegation of past assistance negatived the charge of abandonment. In McConnell v. McConnell, 345 Ill. 70, the “strict compliance” rule in the Keal case was overthrown and the “substantial compliance” rule adopted under which we believe the petition was sufficient to give the court jurisdiction although the sex of the child was not given; and the petition here is not vulnerable in the same fatal manner as that in the Frentz case. She also contends that the decree is void for want of findings that the abandonment was for six months next preceding filing of the petition. There is no such requirement in the Act. It is argued also that the decree does not set forth the facts upon which the findings are made. Except as to appeal provisions, etc., the Civil Practice Act applies to the Adoption Act, ch. 4, par. 13, Ill. Rev. Stat. [Jones Ill. Stats. Ann. 19.012(1)]. Under the Practice Act, no special findings of fact are necessary. Chapter 110, par. 188 [Jones Ill. Stats. Ann. 104.064].

It is finally contended that the finding and decree upon the charge of abandonment are against the manifest weight of the evidence- — the mother saying the facts show no intention to abandon, and that the child was under the supervision of petitioners under a “boarding contract” which was at the time to the child’s best interests. The petitioners rely upon the evidence to show conclusively that when she boarded a train for Nevada to get a divorce from her husband, the mother intended abandonment, which she persisted in for six years. There is no dispute upon the material facts and the question to be decided is one of law. The record shows that the child was born in the Auburn Park Hospital, October 1935, wherein for seven months Mrs. Ekendahl had charge of him. The first two months,' while the child was premature and was in an incubator, his mother visited him at least twice a week. In November the father took the child home and the next morning returned him to the hospital because the mother had become violently ill, could not take care of him, and the next day she left for Nevada, under doctor’s advice. In February 1936, at Reno she was granted a divorce and awarded exclusive custody of the child and his older sister and also allowed $75 a month for alimony and for the children’s support. She remained in Nevada 14 months, too ill to be employed, before returning to Chicago in 1937. Some months after the mother had left Chicago for her health in 1935, the petitioner arranged with the father and parental grandfather of the child to retain custody of him in consideration of receiving $12 a week for his support. It appears that the grandfather made most of the payments which were later deducted from his employee son’s pay. Ekendahls were paid under this arrangement up to May 1940, although apparently not according to agreement. In the Spring of 1936, the mother learned where the child was and wrote Mrs. Ekendahl, and in January 1937 came to Chicago, primarily to get the child and also to prepare herself in a business training school for a position in Reno. She stayed in Chicago a year and a half, visiting the child four or five times a month and told Mrs.' Ekendahl she intended to take him back to Reno, with her, but was informed the child was frail, of delicate health needing medical attention and she decided to leave him in Chicago a while longer. She never told the Ekendahls that she intended to leave the child with them permanently, but maintained always that she would come back and get him. From 1936 until the petition was filed in January 1942, correspondence was exchanged between Mrs. Ekendahl and the mother and the latter sent gifts each Christmas except the last, 1941, when she sent a card. Three letters, received by the mother, were introduced in evidence, in which Mrs. Ekendahl thanks her for sending presents and for corresponding; and sends kisses from, and pictures of, the child. The mother did not demand payments under the divorce decree because she knew of the financial arrangement regarding the child. She was never given any statement of the support money received by petitioners; nor advised of any default in payments under the agreement; nor consulted about the proposed adoption; and knew nothing of it until she received a notice by publication and she immediately wired the clerk of the county court that she proposed to appear and contest the petition.

No cases cited have been helpful in determining what the proof should show in establishing a charge of abandonment. The decree found that the cause for the adoption was that the natural parents, unable to properly maintain the said child, had abandoned and surrendered him to the petitioners. Under our Criminal Code abandonment of a wife has been held synonymous with desertion (People v. Seed, 202 Ill. App. 486; Virtue v. People, 122 Ill. App. 223), but since the Adoption Act itself distinguishes between abandonment and desertion, those cases cannot aid, nor have we been able to find any Illinois case which does. Abandonment imports any conduct on the part of the .parent which evinces a settled purpose of foregoing of parental duties and relinquishment of parental claims to the child. 1 Am. Jur. 643. It does not follow that the purpose may not be repented of and, in proper cases, all parental rights then acquired, including that of preventing adoption by withholding consent; but, when abandonment is shown to have existed, it becomes a judicial question whether it really has been terminated, or can be, consistently with the welfare of the child. 1 Am. Jur. 643. The idea of relinquishment appears universal in defining the term. The basis for such an idea cannot be found in the evidence here.

The evidence shows that the mother lives in a four room cottage in a very good section of Eeno, Nevada; that she makes her home in Eeno because while there her health is good; that she lives with her mother and her daughter Betty, the older sister of the child involved in these proceedings; that she is a Civil Service employee of the United States Department of Interior, earning $125 per month; and that the father- of the child is willing to support him as best he can, although his record on this score justifies little hope. The father testified that the child expressed a desire on several occasions to go home with him and asked about his sister. The mother says that the sister is anxious to have her brother at home. It appears that the child although baptized in the Greek Church is being brought up by petitioners in the Baptist Church. His mother and father both are of Greek ancestry. The petitioners appear to have greater income and are better situated financially than the mother. This, however,. is not the determining factor. We think the evidence in this case clearly shows that the mother is able to maintain her child, and all the circumstances indicate that the child’s best interests will be served by permitting him to be taken to the home of his mother where he shall live with her, his older sister and his grandmother, although the early adjustments necessary for the unfortunate child in his new environment may be painful. Our conclusions should by no means infer that the petitioners are not fit persons. On the contrary, they have shown that they have given the child unusual care and affection.

There is a conflict in the evidence as to how often the mother visited her child. Mrs. Ekendabl saying that she visited him about three or four times during his life and the first time when he was 18 months old. Of course, the residence in Nevada explains the protracted absence of 18 months. The mother testified that during her 18 months stay in and about Chicago in 1937 and. 1938, she visited him at least four or five times a month. This contradiction does not remove the question from the field of law, for clearly, the mother never intended to surrender her right to him, but, on the contrary, her conduct leaves no doubt that she intended eventually to take him home. Under these circumstances we must conclude that the decree was erroneously entered and find as a matter of law that the child was not abandoned and that the decree of adoption should be and hereby is reversed.

Decree reversed.

Hebel, P. J., and Burke, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Anna M. Ryan, Appellee, v. Martin J. Ryan, Appellant.
    Gen. No. 42,378.
    Heard in the third division of this court for the first district at the October term, 1942.
    Opinion filed February 2, 1944.

      John D. Vosnos, of Chicago, for appellant.
    Hugh M. Matchett and James P. Harrold, both of Chicago, for appellee.
   Mr. Justice Kiley

delivered the opinion of the court.

This is an action for separate maintenance with a counterclaim by the husband for divorce. The trial was by the court without a jury and the decree dismissed the counterclaim for want of equity and granted plaintiff separate maintenance. The husband appeals.

Plaintiff’s allegations, material here, were the marriage November 13, 1929; her good conduct and the birth of two children; morose, hostile and cruel conduct of her husband; his desertion of the family October 12, 1940 without cause; and her life separate and apart without her fault. Defendant puts in issue all charges except the marriage and children. His counterclaim alleges his good conduct and her cruelty by striking him with a clothes brush and scratching him October 3, 1940; and striking him with a shoe October 13, 1939 and scratching him September 6, 1937. He also charged generally her profanity and abuse, making his life miserable. She denied the charges.

The decree so far as it pertains to the issues on this appeal, found the equities for plaintiff and against defendant and counter-plaintiff and found that defendant struck and beat plaintiff October 12,1939 and October 3, 1940 without cause; and that without cause or provocation, he deserted his family October 12, 1940.

Eyan claims error because of the court’s refusal to permit witnesses in his behalf to testify to his statements out of Mrs. Eyan’s presence, concerning scratches and blood on his face about October 3,1940.

The test of admissibility of the statements is their spontaneity and we cannot find error, unless the court abused its discretion in ruling on the admissibility. Peterson v. Cochran & McCluer Co., 308 Ill. App. 348. Ryan had the burden of showing the statements were spontaneous. Johnson v. Swords Co., 286 Ill. App. 377. While courts recognize the need of applying the res gestae rule to divorce and separate maintenance cases because the nature of the marriage relation renders witnesses to actual misconduct improbable; nevertheless, the element of spontaneity is required (Bishop on Marriage, vol. 2, sec. 1448), and should be in actions attacking that sanctified and necessary relationship. Neither Passmore v. Passmore, 113 Ind. 237, 15 N. E. 338 nor Berdell v. Berdell, 80 Ill. 604, relied upon here announce a different rule; and Muir. v. Muir, 310 Ill. App. 443, should not be understood as holding that practice in divorce cases has changed the rule. There was no offer of proof to show spontaneity of the statements and we do not think the court abused its discretion by excluding the testimony.

We see no objection to the unfortunate child of the parties, who was ten years old, giving testimony, for we presume the trial court gave that testimony whatever weight it deserved. Ryan says there is not sufficient finding in the decree that plaintiff is living separate and apart from him without her fault. No special findings are necessary under the Civil Practice Act. Smeck v. Smeck, 298 Ill. App. 625 (Abst.). Complaint is made of the examination of witnesses by the trial court. We have read the transcript of the testimony and find no basis for this complaint. The jury was waived at the trial by both sides.

■ Neither the acts alleged in the counterclaim nor the proof thereunder constitute the extreme and repeated cruelty required in a suit by a husband against his wife. Teal v. Teal, 324 Ill. 207. At the time of the trial Ryan weighed 189 pounds and Mrs. Ryan, 119 pounds.

Mrs. Ryan and Maureen testified that Ryan beat his wife October 3, 1940 in an argument over the child’s bedtime. She says that after he beat her she threw a hair brush at him and that he hit her on-the head with a shoe. He says that she threw the brush at him and blackened and cut his eye in the argument, but he denies striking her. So far as the acts of cruelty found to have been committed by Eyan are concerned, the testimony is in conflict as to the part played by Eyan. The court saw the several witnesses, and the decision was one which depended upon the weight given the testimony. We cannot substitute our judgment for its and say that plaintiff was not telling the truth and that the trial court should have believed the defendant.

From the foregoing findings it is evident that, had plaintiff left defendant, she would have had ample reason for doing so, without being at fault. ■ Defendant left, however, and the question is whether plaintiff was at fault in his leaving.

Plaintiff admits throwing the brush on October 3, 1940, but only after she was beaten; admits bolting the front door late at night when alone, and that her husband was locked out, but denies intending to lock him out, saying that his key would not fit. Of course, the inference is that he made noise trying to enter and that she could have let him in, even though in the first instance she may have been justified in locking the door for her own protection. Plaintiff admitted calling him vile names when she was out of temper at his late arrivals at home, and sometimes in the presence of their child.

We believe that the court summed up this problem very well in saying that the root of the trouble was the husband’s lack of attention to his wife. It appears from the testimony that the parties were happy in their courtship and until a couple of years after their marriage. Each blames the other and attaches as a condition to reconciliation that the other change his or her way of living. There was no such proof of an offer to return by the husband which would have revoked any previous right to separate maintenance on his wife’s part. He offered to return if she would treat him as a wife should. She refused to take him back unless he would live as a husband and father should. Though the record indicates fits of temper and vulgarity on the part of the wife, which detracted from the wholesomeness of the home and family life, nevertheless, it also shows that she was not at fault in living separate and apart.

For the reasons given the decree is affirmed.

Decree affirmed.

Hebel, P. J., and Burke, J., concur.


text:
    Virginia Curtis, Appellee, v. Roy Kaderbek et al., Appellants. Appeal of Roy Kaderbek, Appellant.
    Gen. No. 42,445.

      Heard in the third division of this court for the first district at the October term, 1942.
    Opinion filed February 2, 1944.
    Wyatt Jacobs and Walter A. Christopher, both of Chicago, for appellant.
    Francis J. Gariepy and Charles E. Mallon, both of Chicago, for appellee.
   Mr. Justice Kiley

delivered the opinion of the court.

This is an action for personal injuries and property damage against Kaderbek, Warren and Domm. A verdict was directed at the close of the evidence in Domm’s favor, but verdict and judgment were against the others for $2,500 and Kaderbek appeals.

On May 31, 1936, plaintiff was driving south with two companions on Sheridan Road in “No Man’s Land” between Wilmette and Kenilworth in Cook county, Illinois. As her car approached 10th avenue in the westernmost southbound traffic lane, Kaderbek’s car being driven northeasterly in 10th avenue by Warren failed to stop at Sheridan Road, a “through” street, and collided with plaintiff’s car. It appears that there is no dispute in this court concerning Warren’s negligence or plaintiff’s damage.

The vital issue is the question of agency between Kaderbek and Warren. In response to a pre-trial notice and in his answer Kaderbek denied the fact. At the close of plaintiff’s case, Kaderbek moved for a directed verdict contending that no evidence fairly tended to prove agency. The court improperly reserved ruling on the motion. (Goldberg v. Capitol Freight Lines, Ltd., 314 Ill. App. 347), and Kaderbek should have insisted on a ruling; and he was entitled to have the motion tested by the evidence in the record at the time the motion was made. Condon v. Schoenfeld, 214 Ill. 226. There is no merit to plaintiff’s contention that Kaderbek’s point should not be considered because the motion made was not single as to Kaderbek, but joint as to him and Warren. Kaderbek’s counsel in the trial court treated it as several, for he insisted that he would not offer evidence on Kaderbek’s account, but had rested; and it would have been a simple matter to modify the motion were the court disposed to grant it. Although the trial court reserved ruling on the motion, we shall treat it as though denied since it was not granted and the court later denied Kaderbek’s motion for judgment notwithstanding the verdict.

Kaderbek, manager of Domm’s restaurant, called by plaintiff, admitted ownership of the automobile, and testified that the restaurant did not make deliveries or use an automobile in the business; that he had sent Warren to a store for syrup other than the one which his employer had instructed him to patronize; and that his employer knew nothing of the transaction. Warren corroborated this testimony, and added that he was hired as a porter and dishwasher. Domm testified that no car was used in the business and that he did not use Warren as a delivery boy. Plaintiff related a conversation with Kaderbek, following the accident, which infers that he said Warren was working for him. We do not consider contrary evidence on a motion of this kind and hold that the trial court properly denied the motion, since there is evidence which tends to prove agency.

The second point raised by Kaderbek is that the court erred in refusing to instruct the jury that it should consider as to Kaderbek only that evidence which had been presented at the point in the trial when both plaintiff and Kaderbek rested. He cites the Con-don case to support his position. The Condon case cannot be strained to the extent needed to accommodate the instruction. It is pertinent only as authority for the proposition that a court may not consider, in ruling upon a motion for a directed verdict at the close of plaintiff’s case, any evidence thereafter introduced. His motion being denied, Kaderbek was still in the case and it is apparent from the record that Kaderbek’s counsel so considered. The jury was entitled to consider all the evidence in the case in determining the factual issue of Kaderbek’s liability.

Kaderbek also contends the court erred in refusing to instruct the jury that in order to recover against Kaderbek, it must find that Warren at the time of the accident was Kaderbek’s servant or agent and that plaintiff had the burden of proving agency between Warren and Kaderbek by a preponderance of the evidence. Plaintiff argues that Warren was either Domm’s agent or Kaderbek’s and that since Domm had been dismissed out of the case, the issue of agency was no longer present. This argument seems to assume that somewhere in the case it had been decided as a matter of law that there was agency established between Kaderbek and Warren. It was decided as a matter of law at the close of all the evidence that no agency existed between Domm and Warren. No objection is made to the form or substance of the instructions offered by Kaderbek and he argues ■ that as he was entitled to argue the question of agency to the jury even though he presented no evidence, he was entitled to have the jury instructed upon his theory of the case. We agree. Denial of the motion for the directed verdict decided that there was some evidence tending to prove the agency, but it did not have the effect of establishing the agency. That was the province of the jury. The jury need not have found agency simply because the motion was denied and Kaderbek’s counsel was entitled to argue to the jury that on the evidence before it, there was no agency shown, or he may have attacked the credibility of certain witnesses. Furthermore, since the court had decided that the matter was for the jury to determine, Kaderbek was entitled to have the jury instructed thereon. (Thomas v. Chicago Embossing Co., 307 Ill. 134.)

Kaderbek further complains that the court committed prejudicial error in refusing to submit forms of “not guilty” verdicts as to Kaderbek and Warren, individually. He says that that action prevented him from securing a “not guilty” verdict, even though the jury may have believed Warren guilty of negligence, but not Kaderbek’s agent. Plaintiff answers that to have submitted the separate forms of verdict would have invited error, since either they both were guilty or both not guilty. We believe the court erred in refusing to submit the forms of verdict tendered. Plaintiff’s complaint was drawn so that verdicts against Warren or Kaderbek, individually, or both jointly could have been returned. By refusing to submit the forms tendered, the jury was invited to presume that agency between Kaderbek and Warren existed, especially since no instruction was given defining plaintiff’s burden as to proof of the agency. The fact that Domm was dismissed out of the case had no effect upon plaintiff’s burden of proving the agency between Warren and Kaderbek.

For the errors committed in refusing to instruct the jury upon Kaderbek’s theory of defense and in refusing to submit a form of “not guilty” verdict as to Kaderbek, the judgment against Kaderbek must be reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Hebel, P. J., and Burke, J., concur.


text:
    Dollie F. Leitch and Olive A. Leitch, Appellants, v. New York Central Railroad Company et al., Defendants. Chicago Junction Railway Company, Appellee.
    Gen. No. 42,458.
    Heard in the third division of this court for the first district at the October term, 1942.
    Opinion filed February 2, 1944.
    James J. Barbour and Edward H. S. Martin, both of Chicago, for appellants.
    Winston, Strawn & Shaw, Sidney C. Murray, Marvin A. Jersild and W. A. Morrow, all of Chicago, for appellee; Frank B. Gilmer, Marvin A. Jersild, W. A. Morrow and Walter M. Fowler, all of Chicago, of counsel.
   Mr. Justice Kiley

delivered the opinion of the court.

This is an appeal from that part of a judgment under which plaintiffs failed to recover from the Chicago Junction Railway Company in their action against it and others for compensation for use and occupation of certain lands. Judgment for $29,000 was entered against the Junction Company’s lessee, the Chicago River and Indiana Railroad Company, for use and occupation for five years preceding commencement of the suit April 17, 1934. No recovery was had against other defendants whom this appeal does not affect.

Certain lands owned by plaintiffs or their predecessors were leased to the Union Stock Yard & Transit Company for many years prior to 1917 on a yearly basis. December, 1913, the Stock Yards Company made a lease with the Junction Company and in May, 1922, the Junction Company made a lease to the River Road of all property included in its lease from the Stock Yards Company. There was no lease between plaintiffs and Junction Company. The Junction Company admits having occupied and used a 34 foot strip of plaintiff’s property from December 1, 1913 to May 19, 1922, except from December, 1917, to March, 1920. In January, 1918, the Junction Company filed a condemnation suit to acquire the 34 foot strip and an injunction issued restraining plaintiffs from “attempting to interfere, or interfering by legal proceedings or otherwise” with the Junction- Company’s possession. This suit was dismissed in May, 1934.

It is apparent from the record that the trial court decided that any claims the plaintiffs may have had for compensation for years prior to 1929, were barred by the Statute of Limitations. The issue here is whether the injunction in force from January, 1918, to May, 1934, restraining plaintiffs from interfering with Junction Company’s possession tolled the statute. Plaintiffs say that if the injunction restrained any action by them for use and occupation of their property, the judgment for the Junction Company should be reversed, otherwise affirmed.

Since the injunction issued in the suit to condemn the 34 foot strip and since plaintiffs’ contentions are based on the injunction, it is apparent that the claim for compensation is limited to the 34 foot strip. Plaintiff has cited many cases as authority for their view that onr decision should rest on a consideration whether any action by them for rent or use and occupation would have violated the letter or the spirit of the injunction. No cases cited have been helpful upon the precise point which will resolve the issue, that is whether a suit by plaintiffs for rent or use and occupancy would have been an attempt to interfere or an interference with the Junction Company’s possession of the 34 foot strip.

The injunction does not expressly prohibit a suit for rent or use and occupation. Contrary to plaintiffs’ view, that such a suit alone would interfere with Junction Company’s possession, we believe that it would rather confirm its right to possession, for it would be, necessarily, founded on an express or implied relationship of landlord and tenant (Jackson v. Reeter, 201 Ill. App. 29), giving defendant the right to possession. A simple assumpsit action for compensation for use and occupation is not a possessory action, would not have challenged the Junction Company’s possession, and would have been proper because there was no special agreement for rent. (Ch. 80, sec. 1, Ill. Rev. Stat. [Jones Ill. Stats. Ann. 72.01].) We cannot see any merit'to plaintiffs’ contention that the injunction tolled the Statute of Limitations and, since that point is the only one involved in the appeal, the judgment of the trial court is affirmed.

Judgment affirmed.

Hebel, P. J., and Burke, J., concur.


author: Mr. Presiding Justice Dove

text:
    Henry Kohler et al., Appellee, v. City of Kewanee, Appellant.
    Gen. No. 9,937.

      Heard in this court at the October term, 1943.
    Opinion filed February 6, 1944.
    Thomas J. Welch and Vera M. Binks, both of Kewanee, for appellant.
    J. P. Wilamoski, Andrews & Andrews and Young & Young, all of Kewanee, for appellees.
   Mr. Presiding Justice Dove

delivered the opinion of the court.

The City of Kewanee has appealed from a judgment against it by the city court of that city in favor of seventeen firemen and fifteen policemen, for the difference between the respective amounts paid them as salaries, and the amounts, at $150 per month, prescribed by the Minimum Salaries Act of 1937, for firemen and policemen in cities of the size of Kewanee (Ill. Rev. Stat. 1939, ch. 24, pars. 860-a, 860-b, 860-c, 860-d.) The claim of several of the appellees cover the period from July 13, 1937, the effective date of the acts, to February 19, 1942, and the claims of the other appellees cover shorter periods of time. The cause was tried by the court without a jury.

The city adopted the Commission Form of Government Act in 1911 and has ever since operated thereunder. It has never adopted the act regulating civil service in cities, nor the Fire and Police Commissioners Act. The last ordinance of the city fixing salaries of firemen and policemen was adopted on February 1, 1937, and provided for salaries of firemen at $95 per month and policemen at $100 per month. There was no ordinance or resolution in effect limiting the number of firemen or policemen when the Minimum Salaries Acts went into effect on July 13, 1937,

The first section of the Firemen’s Minimum Salaries Act, as in effect during the periods in controversy, provided:

“The word ‘firemen’ means any member of a regularly constituted fire department of a city, village or incorporated town, appointed or commissioned to perform fire fighting duties, and includes the fire chief, assistant fire chief, captain, engineer, driver, ladder man, hose man, pipe man, and any other member of a regularly constituted fire department.”

The first section of the Policemen’s Minimum Salaries Act provided:

“The word ‘policeman’ means any member of a regularly constituted police department of, a city, village or incorporated town, sworn and commissioned to perform police duties, and includes the chief of police, assistant chief of police, chief of detectives, captains, lieutenants, sergeants, plain clothes men and patrolmen. ’ ’

Prior to the general revision of the Cities and Villages Act in 1941, the only statute which provided that members of the fire or police departments are officers of a municipality, was section 12 of the Fire and Police Commissioners Act (Ill. Rev. Stat. 1939, chap. 24, par. 854), and it was applicable to only such municipalities as adopted the act, and is therefore, not pertinent here. Section 4 of art. 6 of the Cities and Villages Act (Ill. Rev. Stat. 1939, ch. 24, par. 87) required the taking and subscribing of an oath by all city and village officers, and the furnishing of a bond by the mayor, commissioners, clerk, treasurer, “and such other officers and employees as the council may designate by ordinance.” Similar statutory provisions are embodied in the 1941 revision of the Cities and Villages Act.

Sections 2 and 3, art. 1, ch. 4 of the 1929 ordinances of the city create the office of chief of police, and provide that “he shall take the oath prescribed for all city officers, and enter into bond in the penal sum of $1000.00.” Sections 1, 2 and 3 of art. 4 create the office of “chief fire marshal” with like provisions as to oath and bond. Sections 1, 2 and 3 of art. 3 create the office of police patrolman, with like provisions except as to the amount of the bond. No ordinance in evidence creates the office of fireman or prescribes the taking of an oath or the furnishing of bond by any fireman.

The testimony shows that appellee Albert Stuhlsatz and appellee Frank Schlindwein were first elected by the city council, on May 6, 1935, as chief of the fire department and chief of police, respectively, and that their bonds were approved at the same meeting. They were again elected to the same respective offices and again took the oath of office and furnished bond on May 6,1939. One of-the appellee policemen, appointed about May 1, 1935, testified that he and all the other policemen then hired, naming ten other appellees, took the oath of office orally at the same time. He and five other appellee policemen testified that they, the witnesses, also furnished bond. The appointments of May 1, 1935, of fourteen appellee firemen and twelve appellee policemen were confirmed by the city council on September 16, 1935. Twelve appellee firemen were reappointed in May, 1939, and two other appellee firemen were appointed on July 18, 1939. The record shows written oaths of nine appellee police patrolmen, dated February 3,1941, and two appellee police patrolmen, dated February 15, 1941. The city clerk testified he thought there were one or two other oaths in his office, and upon being recalled, said the girls in the office told him they had given all that were on file to the bailiff, and no other written oaths were introduced in evidence.

Counsel for appellant claims that there is no allegation in the complaint that a regularly constituted fire department or police department was ever established by ordinance. Only two counts of the complaint, one of them relating to one fireman, and the other to one police patrolman, are abstracted. The fireman count abstracted alleges: “Plaintiff was, on July 13, 1937, appointed, employed and authorized by the said City of Kewanee as a fireman and a member of the regularly constituted fire department of said city.” The policeman count abstracted contains 'similar allegations. These allegations were specifically traversed by the answer. Ordinances of the city introduced in evidence provide that the “Fire Department” shall consist of one chief and a specified number of firemen, with similar provisions as to the “Police Department.” The commissioner to whom such appointments were committed testified that he appointed each of the appellees, and that each of the firemen were employed as members of the regularly constituted fire department of the city from May, 1939, through and including the year 1942: Under such circumstances, the defect in the complaint was cured. (Lake Shore & M. S. Ry. Co. v. O’Conner, 115 Ill. 254; Plew v. Board, 274 Ill. 232.)

Appellant’s contention that the trial court erred in denying its motion to strike the counts setting up the claims of appellee firemen Mauritz Bengson and Stephen Polowy, on the ground that such claims are barred by a previous judgment in a suit instituted by them against the city and its officers, is equally without merit. The amended complaint in that case consisted of three counts, the first two of which sought a money judgment. The third count was for a writ of mandamus compelling the payment of the difference between the amounts received and the salary prescribed by the Fireman’s Minimum Salary Act. The first two counts were stricken for insufficiency on motion of the defendants, the motion was denied as to the third count, and the writ was ordered to be issued. Upon an appeal by the defendants to the Supreme Court, no cross error was filed by the plaintiffs, and the judgment awarding the writ was reversed because of the insufficiency of the allegations of the third count to establish the right to the writ. (Bengson v. City of Kewanee, 380 Ill. 244.) In the course of the opinion on page 254, the court said: “By the first and second counts in the amended complaint in this case, appellees sought to establish the alleged debts. These counts asked for a money judgment. The court sustained the motion to strike these counts because of the insufficiency of the allegations therein contained. By this action the court refused to establish the claims as money judgments. The judgment striking these counts has become final. No appeal was taken therefrom.”

As shown by this language, there was no adjudication of the claims for a money judgment, but the two counts on such claims were stricken merely for insufficiency of the allegations therein. The issue thereunder, on appeal, if a cross error had been assigned, would have been, not on the merits of the claims for a money judgment, but merely on the procedural question of the sufficiency of the allegations of the first two counts. There being no appeal from the order striking them for insufficiency in allegations, the judgment, as pointed out by the Supreme Court, became final on that question, but neither the opinion nor any rule of law makes it final on the merits. The Supreme Court took this view, in its suggestion on page 255: “If appellees have any claims against the City of Kewanee, they should first have those claims ascertained and established. Ordinarily, this is done by way of a judgment at law.” The trial court did not err in refusing to strike these counts.

Appellant further contends that appellees cannot recover because they have failed to establish that they were officers de jure during the periods in controversy. Appellees take the position that it is immaterial whether they were officers or employees, so long as they were members of a regularly constituted fire or police department, and state that they seek only the minimum salary provided by statute as members of regularly constituted fire and police departments, and not the salary of an officer.

Under the provisions of the statutes and the ordinances mentioned, it seems clear that the chief of the fire department, the chief of police and all patrolmen are officers of the city. Firemen are treated as city officers in People ex rel. Moshier v. City of Springfield, 370 Ill. 541, 556.

If, as claimed by appellant, none of the appellees was an officer de jure, the question is whether, being officers de facto, they can recover, not as such officers, but as members of the respective departments. While there is ordinarily a distinction to be observed between officers and members of an organized body, the two Minimum Salaries statutes here involved make no such distinction, but, on the contrary, they include as mem-' bers those who are ordinarily officers. We think the term “member” of a regularly constituted fire or police department is broad enough to cover a member claiming as such, although he is an officer de facto. Being an officer de facto does not deprive him of being a member, and being a member is all that either of the two statutes requires, regardless of whether he is also an officer. Each of the appellees is, in our opinion, a “member” of the fire department, or the police department, within the meaning of the statute.

It is well settled that no municipal ordinance can add to, subtract from, modify or affect the provisions of a statute. It is a familiar principle of the law that statutes in pari materia must be construed together, and in the light of that principle, although appellant may require an oath and bond of every officer and employee, and fix their compensation, such powers are subject to the limitation in the Minimum Salaries Acts, that such salaries shall not be less than the amounts therein specified.

Appellant also relies upon the fact that ordinances passed July 8, 1941, purported to discharge the chiefs and members of the fire and police departments as of 12:15 o’clock p. m. of that day, and authorized the appointing authorities to hire such persons as were necessary to manage the departments as temporary employees from 12:30 o’clock p. m. of the same day; and that the record does not show any reappointment. The answer to this contention is that the record does not show that any of the appellees was ever notified that he was discharged, and each of them was continued in his employment for the times alleged in the complaint, as a regular member of his department, without interruption or change in compensation.

Ordinance No. 1116 of the city, effective July 31, 1939, provided for one fire chief, fourteen firemen, one police chief and eleven policemen; and Ordinance No. 1143, effective May 10, 1941, provided for one fire chief, ten firemen, one police chief and nine policemen. This latter ordinance was in effect during the remainder of the period covered by this suit. Appellant claims that during this period it is alleged by appellees that one fire chief and twelve firemen served the whole period, one fire chief and fourteen firemen served part time, and during the same period one chief of police and ten policemen served, and for part of the time eleven policemen served; that the city had the right to limit the number of firemen and policemen by ordinance, which could not be changed except by another ordinance, and that it cannot be determined which of the firemen and policemen came within the terms of the ordinances. The abstract sets out the claims of only one fireman and one policeman as to time of service, and makes no showing as to whether any of the other firemen or policemen makes such a claim for the periods mentioned, and this court is not required to search the record in order to find some ground to reverse a judgment. This applies also to appellant’s contention that certain named appellees did not serve during certain periods and that their reappointment is not shown.

Appellant does not claim that any of the appellees did not serve as fireman or as a policeman for the respective periods alleged in the complaint. Each of the appellees as disclosed by this record was a member of the fire or police department within the meaning of the Minimum Salaries Acts, and, as such member, is entitled to its benefits and the salary thereby provided.

The judgment of the circuit court was correct and is affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Friend

text:
    Metropolitan Life Insurance Company, Appellant, v. W. T. Grant Company et al., Appellees.
    Gen. No. 42,562.

      Heard in the second division of this court for the first district at the February term, 1943.
    Opinion filed February 10, 1944.
    Rehearing denied March 9, 1944.
    Follansbee, Shorey & Schupp, of Chicago, for appellant ; Robert W. Schupp and Frederic Barth, both of Chicago, of counsel.
    Winston, Strawn & Shaw, of Chicago, for certain appellee; Adolph & Henry Bloch, of New York City, and Frederick C. Hack and James H. Cartwright, both of Chicago, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.

October 1, 1940 Metropolitan Life Insurance Company lodged its complaint against W. T. Grant Company, a Massachusetts corporation, Merchants National Building Corporation of Illinois, and Chicago Title & Trust Company as successor trustee, to foreclose a trust deed on premises at 3341-43 West Roosevelt road, Chicago, securing its loan of December 10, 1929 to Merchants National Building Corporation (hereinafter referred to as mortgagor) for $135,000, on which there remained due the sum of $116,100 and interest. Some eight months before the loan was made W. T. Grant Company had entered into a 30-year lease with the mortgagor for the premises at rentals graduated from $15,000 to $22,000 per annum. Thereafter through mesne conveyances W. T. Grant Realty Corporation, a subsidiary of W. T. Grant Company, acquired the fee and on February 29, 1940, before default in the mortgage, the lease was canceled and the property conveyed to the lessee. The conveyance to the Grant Company declared the intention of the parties that all leases to the premises shall be of no further force and effect and it is contended that by the delivery and acceptance of the deed, coupled with the payment of some $83,500 as consideration therefor, the provisions of the deed became a binding contract, canceling and terminating the lease and merging the two estates. During the pendency of the proceeding the court entered orders striking portions of the amended complaint which were not appealable when entered, and plaintiff therefore proceeded with the foreclosure to a final decree and sale. This appeal is taken from the decree and from the prior orders which denied plaintiff’s right to enforce the continuing obligations of the lessee to pay rent in accordance with the terms of the lease.

After Grant Company acquired title it defaulted under the mortgage and offered to convey the premises to plaintiff in lieu of foreclosure. The offer was refused and plaintiff instituted foreclosure proceedings alleging, in addition to default, dissolution of the mortgagor and its insolvency, the following salient facts upon which its claimed right to enforce the continuing obligations of the lessee to pay rent in accordance with the terms of the lease is predicated: the mortgage loan of $135,000 was secured by trust deed wherein the mortgagor conveyed the premises to Chicago Title & Trust Company as trustee, together with the rents, issues and profits thereof. As an inducement for the loan, the mortgagor submitted its application stating that the premises were leased to W. T. Grant Company for a term of 30 years at specified rentals which were graduated from $15,000 to $22,000 per annum. The lease, when made, was duly recorded. Thereafter, by warranty deed of May 7,1937, the mortgagor conveyed its premises to West Roosevelt Road Realty Company, Inc., subject to the trust deed securing the plaintiff’s loan. Later, by warranty deed dated March 31, 1938, the latter conveyed the mortgaged premises to W. T. Grant Realty Corporation, alleged to be a subsidiary of the lessee, subject to the deed in trust securing the loan made by plaintiff. Still later, by bargain and sale deed dated March 20, 1940, W. T. Grant Realty Company conveyed the mortgaged premises to W. T. Grant Company, the lessee, subject to the deed in trust securing the plaintiff’s loan. Notwithstanding the expressed intention of the parties in the last conveyance that all leases covering the premises granted be merged into the fee, plaintiff alleges that the deed did not effect a merger; that a merger would impair the security for the mortgage debt and be equivalent to waste; that the lease continues as a good and valid obligation requiring the lessee thereunder to pay rent to satisfy the mortgage debt; that plaintiff relied upon the rents as security when it made its loan and that the lessee should continue liable for the rents until the covenants and agreements in the trust deed are fully performed; that without the obligation of the lessee to pay rent under its lease the premises are worth less than $50,000, whereas the mortgage debt amounts to more than $120,000; that it is necessary for the security of the mortgage debt that the lessee continue liable for rent; and that a release of its liability would seriously impair the security for the mortgage debt. The principal relief sought, aside from foreclosure, is that the mortgaged premises be sold subject to the lease of W. T. Grant Company.

W. T. Grant Company filed its motion to strike all parts of the complaint as amended which allege facts to show that it continues to be liable for rent under its lease, on the ground that the lease was terminated and the lease estate was merged into the fee and no liability for rent existed at the time suit was commenced. The motion was sustained and the portions of the complaint as amended and the prayer for relief with respect to holding the Grant Company liable on its lease, were ordered stricken. Thereafter plaintiff had leave to file other amendments specifying some of the foregoing facts in greater detail, and the W. T. Grant Company’s motion to strike the new amendments was likewise sustained by the chancellor. Following these orders the Grant Company filed its answer, the unstricken portions of the complaint as amended were referred to a master to compute the amount due plaintiff, and upon the master’s recommendation a decree was entered finding $139,455.76, plus interest, due plaintiff, for which it had a valid and subsisting lien on the mortgaged premises, which were ordered sold if that amount was not paid in three days. This appeal followed.

Plaintiff takes the position that when the mortgage was made the parties intended the Grant lease to continue for its full term as security for the mortgage debt; that the rents mortgaged included the rents under the Grant lease and the mortgagee rightfully relied upon them for its security when it made the mortgage loan; that the right of a mortgagor and its assigns to use the mortgaged property is restricted to use consistent with good husbandry, or good management, which preserves the market value of the mortgaged property and keeps the security for the mortgage debt unimpaired; that for the protection of its rights the mortgage lien on the rents is an intervening lien which prevents a merger of the leasehold estate into the reversion; and that the law of merger is controlled by equitable principles under which a merger will not be permitted if its effect would be to impair the security and render it inadequate for the mortgage debt.

The Grant Company, on the other hand, contends that when there is no assignment to the mortgagee of the lessor’s interest under a lease, then, until default occurs under the mortgage, the lessor is entitled to deal- with his lessee as he sees fit, raising or lowering the rent, or shortening, lengthening or canceling the term, without consultation with or permission from his mortgagee, and that in the present instance the lease was validly canceled; that nothing short of an actual assignment of the lessor’s interest in the lease under the foregoing circumstances will require consultation with and consent of the mortgagee; that the mere inclusion of “rents, issues and profits” of the premises in the mortgage does not constitute an assignment by way of mortgage, or otherwise, of the rents under a specific lease, but only gives to the mortgagee the right to collect such rents as the premises are producing or may be made to produce by receivership, or otherwise, in case of default; that mere representation by a prospective mortgagor to a prospective mortgagee that the premises are presently producing a certain rental does not constitute an assignment of a lease then in existence; that as to merger, when the lessee purchased the fee for a valuable consideration and it was recited in the conveyance that it was the intention thereby to merge the leasehold estate into the fee, a complete merger was thereby effected, and all obligation to pay rent under the lease was at an end; that while the existence of an outstanding lien upon the lesser estate will usually prevent a merger, an outstanding lien by way of judgment, mortgage or otherwise upon the greater estate, is no obstacle to a merger; and that if the mortgagee was not satisfied to rely upon the value of the land and building as security for its mortgage, then a very simple and obvious method existed by which the lessor’s interest in the lease could have been obtained as additional security, namely, an assignment of the lessor’s interest in the lease as collateral, with notice thereof, either constructive or actual, to the lessee.

The Grant Company submits Central Republic Trust Co. v. Petersen Furniture Co., 279 Ill. App. 492, and the numerous cases cited and discussed therein, as decisive authority for the right of a landlord and a tenant to cancel a lease, despite the existence of a mortgage lien upon the premises prior to default under the mortgage. In that case, decided by the first division of the Appellate Court in this district, the owner trustees on March 10, 1926 leased the premises to defendant for a period of 15 years at a stipulated rental of $172,200, payable in graduated monthly instalments. July 31,1926 the premises were conveyed to Ralph W. Hartwig. August 1, 1928 Hartwig made a conveyance by trust deed to the Cody Trust Company to secure a loan of $70,000. Thereafter on August 20, 1928 he conveyed the premises, subject to the trust deed, to Chicago Title & Trust Company, and on May 20, 1932 the latter 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 made no investigation of the title held by Barry other than inquiries of him and of his agents. The evidence, however, showed that the original lease was presented by Barry at the time the lease was canceled. August 1, 1932 default was made in the payment of interest under the trust deed. August 8, 1932 the Cody Trust Company made a written demand on defendant for all rents thereafter accruing. No rent was paid, and accordingly suit was 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. Pursuant to trial the court found the issues for defendant, and plaintiff appealed from the judgment entered in favor of defendant. The question presented for decision, as stated by Mr. Justice Matchett, was “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.” Obviously, as. pointed out by the court, the answer to that 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.” The court then entered into an exhaustive review of cases touching upon the history of the law of mortgages in Illinois. It cites Pomeroy’s Equity Jurisprudence, 4th ed., vol. 3, sec. 1179, p. 2784, as authority for the statement that the distinctive feature of the English law on this subject prior to the passage of the judicature acts 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, but that in most of the American States the law on the subject has been developed uninfluenced by the decisions of the English courts; that in some of the States where the legal theory obtains, the mortgagee takes the legal title with its incidents, including the right to appropriate the rents, while in others where the equitable theory is adopted, the mortgage is a mere conveyance as security, the mortgagor retaining the legal right and the mortgagee being invested only with a lien on the premises conveyed as security for his debt. Reeve’s Illinois Law of Mortgages and Foreclosures, vol. 1, pp. 3 to 10, is cited as describing the common law and equitable theories and the influence of the civil law upon the law of mortgages, including the borrowed conception that a mortgage is a mere lien or security, and the author states 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. In this connection the authority 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. ’ ’ Following a discussion of substantially every leading case on the subject in this State, the court concluded as follows: “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.” The opinion in the Petersen case shows a careful consideration of the law of mortgages as applied to landlords and tenants and touches upon practically every question involved in this proceeding other than merger. It is strikingly similar to the proceeding at bar in its essential aspects. In both cases there were long-term leases antedating mortgages given to secure substantial sums, which conveyed the premises, together with the rents, issues and profits, as security for the debt; and there were mesne conveyances accompanied by heavy depreciation in real estate values, followed by cancellation of the leases for a valuable consideration and subsequent default under the mortgages. Lightcap v. Bradley, 186 Ill. 510; Rohrer v. Deatherage, 336 Ill. 450, and numerous other cases cited and discussed in the Petersen case support the conclusion there reached as to the interest taken by the grantee in a conveyance of land by way of mortgage; and while it may be conceded that equity will not depart from rules of the common law further than equitable considerations warrant,-the courts in Illinois, both law and equity, consider the mortgagee as having merely a lien on the property prior to default and regard the mortgagor as the owner until default. For this reason it would be useless to discuss decisions on the subject in other States, in some of which a different or modified theory of mortgages is recognized.

Many of plaintiff’s arguments in support of its theory that the mortgaged property should be sold at foreclosure sale subject to the lease of the Grant Company and to its continuing obligation to pay rent as provided by the terms of the lease, are based on the contention that when the mortgage was made the parties intended the lease to continue for its full term, and it is urged, without authoritative support, that “The rents under it were included in the mortgage of the rents, issues and profits and of all the estate, right, title and interest of the lessor in and to the mortgaged real estate, and the mortgagee relied upon them for its security when it made the mortgage loan.” Upon the theory that it had established that principle, plaintiff refers to the lessor’s interest in the lease and the rents thereunder as having been specifically pledged to secure the mortgage. Counsel seek to support the contention by stressing that in the application for a loan on February 28, 1929 Merchants National Building Corporation, the mortgagor, represented to plaintiff that a lease was then in existence upon the mortgaged premises in which the Grant Company was the lessee and under which it paid the rents ultimately provided for in the lease executed more than a month and a half thereafter. It is conceded, however, that plaintiff had an independent appraisal made of the premises which placed a value of $150,000 upon the real estate and $75,000 upon the buildings, or a total of $225,000 to secure a mortgage of $135,000. It is a well known fact that before the great depression, the extent of which no one could have foreseen, there was an unprecedented boom in real estate values and that when the lease was canceled the property had greatly depreciated in value. It is likely that when the appraisal was made plaintiff, one of the largest insurance companies in the United States, with vast experience in investing its funds, considered the property adequate security for the debt, and therefore did nothing to obtain a lien on the leasehold except to rely upon the words “rents, issues and profits” as giving it the security which so valuable a lease would have afforded. However, the authorities do not support the contention that the lease was pledged as «.security for the loan by the mere inclusion of the rents, issues and profits. In Anderson v. Frederickson, 252 Ill. App. 281, the mortgage provided that the rents of the premises “shall be, and hereby are, assigned to the legal owner and holder of said note, as a part of the security therefor”; also “all net rentals on hand from said building in amounts of $500 or more shall be from time to time applied on account of the note secured hereby, notwithstanding the expressed maturity of the instalments thereof. Monthly statements and balances of rentals shall be delivered to the legal owner and holder of said note, who shall receive the same for the purposes aforesaid.” The receiver appointed filed a petition claiming from the agents of the mortgagor certain funds in their hands representing rents theretofore collected from the premises. The agents answered that they had negotiated a long-term lease and were entitled to commissions and had applied certain rentals against such commissions, leaving only a small balance on hand. The trial court directed them to turn over the full rents collected. The Appellate Court, in an opinion written by Mr. Justice McSurely, reversed the trial court, citing with approval sections 670 and 976 of Jones on Mortgages, and held that even with the language included in that particular mortgage, the mortgagee obtained no lien on specific rentals, and must take the property as he found it upon the appointment of the receiver. A like conclusion was reached in Taylor v. Osman, 239 Ill. App. 569, where the mortgage conveyed the lands “with all rentals, rights, interests and appurtenances thereunto appertaining, waiving all right to retain possession of said premises by default in payment or breach of any covenant.” There the court, after citing cases, held: “As long as the mortgagor is allowed to remain in possession he is entitled to receive the rents and profits, and even if the rents and profits are pledged to secure the mortgage debt, with the right in the mortgagee to take possession upon default, the mortgagee is not entitled to the rents until he takes actual possession or until possession is taken in his behalf by a receiver. The mortgage does not create a lien u-pon rents and profits, although they be expressly pledged, to the same extent that it creates a lien upon■ the land.” (Italics ours.) Rohrer v. Deatherage, 336 Ill. 450, Wolkenstein v. Slonim, 355 Ill. 306, and the Petersen case are to the same effect. From these considerations it would seem that the mere inclusion of the rents, issues and profits in the mortgage does nothing more than operate to deprive the mortgagor of the income from the premises subsequent to default, and then only if the mortgagee takes affirmative action to possess himself of it.

This brings us to a consideration of the question of merger. As a general rule, whenever a greater and a lesser estate are joined in the same person with no estate intervening, the lesser is merged into the greater unless there is a clear intent that merger shall not take place, and in the absence of any evidence of intent the merger is presumed. In the case at bar the deed to the Grant Company contained a specific declaration of the intent of the parties as evidence of their intention to- merge the fee and the lease. With the intention affirmatively established, the authorities in this State are in accord in holding that while a lien upon the lesser estate constitutes an intervening estate, a lien upon the greater estate does not. Carroll v. Ballance, 26 Ill. 9; Hill v. Reno, 112 Ill. 154. The rule is fully stated in 31 C. J. S., Estates, sec. 123b, accompanied by the citation of numerous cases. Exception to the foregoing rule is that no merger will be permitted to the detriment of the holders of an intervening estate, and some of the cases cited by plaintiff follow the application of this exception. In Hooper v. Goldstein, 336 Ill. 125, the intervening estate was a lien upon the certificate of sale, the lesser estate, claimed by the defendant therein to be merged into the fee secured by purchase of the equity. In Chicago Title & Trust Co. v. Kesner, 296 Ill. App. 187, the intervening estate consisted of a mortgage of $400,000 upon the leasehold, the lesser estate, preventing its merger into the fee. This was a purchase money mortgage given when the lease was purchased and indicated a clear intention not to merge and destroy the lease. Prom the decisions cited and discussed by plaintiff it appears that “an intervening estate” is an estate coming between the lesser estate and the greater -estate— a lien upon the lesser estate, and in such cases the courts hold that the merger must be prevented to avoid destruction of the lien. In the case at bar, however, the lien in question is upon the fee, the greater estate. The fee itself is security for the mortgage loan and a merger will not affect the lien, for it will continue to-have as great a measure of security as before, namely, the land and the rents, issues and profits derived therefrom. No attempt has been made to lessen this security. In cases where a lease is specifically assigned to the mortgagee, as it could have been in this instance if plaintiff had insisted upon it, the mortgage itself becomes a lien upon the lesser estate as well as the greater estate, and thereby becomes an intervening estate. Plaintiff cites no cases holding that a lien solely upon the greater estate will prevent the merger and extinction of the lesser estate.

Much of plaintiff’s argument in support of its various theories is founded upon general equitable principles and maxims and the citation of cases too numerous to discuss within the confines of this opinion. If plaintiff were able to demonstrate that the Grant lease constituted security for its mortgage to the same extent as if the lessor’s interest in that lease had been specifically assigned as security, many of the points urged could be readily dispensed with; but in the view we take its failure so to do renders many of the principles and maxims, while otherwise sound, inapplicable. Upon the assumption that this particular lease was in fact mortgaged to it as additional security, plaintiff argues that the cancellation thereof constituted an impairment of its security, or waste. However, if we are correct in our conclusion that the lease was not assigned under the trust deed and did not constitute part of the security for plaintiff’s indebtedness, it would logically follow that no waste was committed and that plaintiff’s security was not legally impaired by the cancellation and merger of the lease. Moreover, “waste” is generally limited to physical damage to the property, and no such question arises in this proceeding.

Considerable argument is devoted in plaintiff’s brief to the general equities of the case, and it is suggested that the Grant Company was guilty of bad faith toward plaintiff. The loan was made pursuant to plaintiff’s own appraisal, with which the Grant Company had nothing to do. While the record shows nothing as to the losses that may have been suffered by the Grant Company in the operation of the store, it does appear that it remained there as a tenant for a number of years and ultimately purchased the equity for $83,500. The business was so bad that the company elected to abandon its entire investment with all the promotional work done and expenses incurred in connection therewith, and offered to convey the premises without charge to plaintiff. Obviously the losses, both to the Grant Company and plaintiff, resulted from miscalculation as to the future of the territory rather than from any misconduct on the part of either. As pointed out in the Petersen case, ‘ ‘ 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. ’ ’

We are of opinion that the decree and orders of the circuit court were proper, and they are therefore affirmed.

Decree and orders affirmed.

Scanlan and Sullivan, JJ., concur.


author: Mr. Justice Scanlan

text:
    James T. Groot, Appellee, v. City of Chicago, Appellant.
    Gen. No. 42,083.
    Heard in the second division of this court for the first district at the February term, 1942.
    Opinion filed February 10, 1944.

      Barnet Hodes, Corporation Counsel, for appellant; James A. Velde and Adam E. Patterson, Assistant Corporation Counsel, of counsel.
    Gardner, Carton & Douglas and Erwin W. Roemer, all of Chicago, for appellee; Charles T. Shanner and William L. Fay, both of Chicago, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

An action to recover damages for personal injuries sustained by plaintiff in a collision between the automobile he was driving and a fire department truck of the City of Chicago. A jury returned a verdict finding defendant guilty and assessing plaintiff’s damages at $4,500. Defendant appeals from a judgment entered upon the verdict.

This was the second trial of the case. Upon the first trial a jury found defendant guilty and assessed plaintiff’s damages at $1,000. Plaintiff filed a motion for a new trial “on the ground that the damages awarded by the jury are grossly inadequate.” The trial court allowed this motion. Upon the second trial the record is free of many complaints that are usually urged by defendants who appeal from judgments against them in cases of this kind. As stated by - plaintiff in his brief: “The defendant does not complain that the trial court committed any errors in the admission or in the rejection of evidence, nor is there any criticism of any of the instructions given by the court to the jury or of the court’s action in refusing to give instructions. No fault is found with the conduct of the trial in any manner by the court or by counsel.”

Defendant raises three contentions in support of its argument that we should reverse the instant judgment and enter judgment for defendant, or we should remand the canse for a new-trial: “I. The record does not contain evidence of negligence on the part of the defendant’s servants.” “II. Assuming that the trial court properly refused to direct a verdict on the issue of the defendant’s negligence, it should have granted the defendant a new trial on the ground that the jury’s finding on that issue is against the manifest weight of the evidence.” “III. The evidence shows that the plaintiff was guilty of contributory negligence as a matter of law.”

In 1931 the legislature passed the following Act:

“Sec. 1. In case any injury to the person or property of another is caused by the negligent operation of a motor vehicle by a member of a municipal fire department while such member is engaged in the performance of his duties as fireman, and without the contributory negligence of such injured person or the owner of such property or the agent or servant of such injured person or owner, the municipality in whose behalf such member of such fire department is performing such duties shall be liable for such injury; provided, that in no case shall a member of a municipal fire department be liable in damages for any injury to the person or property of another caused by him while operating a motor vehicle while engaged in the performance of his duties as fireman. ’ ’ (Ill. Rev. Stat. 1941, ch. 70, par. 9.)

This Act was held valid in Bryan v. City of Chicago, 371 Ill. 64.

The complaint sets up the aforesaid statute and charges that defendant, while plaintiff was in the exercise of due care for his own safety, by and through its agent, a member of the fire department of the City of Chicago, so carelessly, negligently, wrongfully and improperly ran, managed, operated, controlled. and maintained its motor vehicle that it collided with plaintiff’s automobile.

About 9 o ’clock a. m., March 14, 1932, the station of the Chicago Fire Department at 1642 North ICostner avenue received a fire alarm that called it to the 5900 block on Fullerton avenue. A fire truck left the station, traveled on Kostner avenue to Fullerton avenue and then traveled west on Fullerton avenue to Central avenue, which is about a mile and a quarter west of Kostner avenue and about three blocks east ■ of the 5900 block on Fullerton avenue. The Fullerton avenue street car line terminated on the east side of Central avenue. Fullerton avenue is about fifty or sixty feet wide and contains two street car tracks and lanes for traffic on each side of the tracks. There are red, green and amber traffic signals on the four corners of the intersection of Fullerton and Central avenues. At the time of the accident, there were two or three street cars standing on the tracks, waiting to make the return run eastward. Automobiles were parked between the standing street cars and the north curb of Fullerton avenue, and when the fire truck approached Central avenue it could not enter the intersection from the north side of the street and the driver of the truck drove it to the south side of the street and to the left of the street cars. The truck was driven into the intersection and somewhere about the center line of the intersection there was a collision between plaintiff’s automobile, which was proceeding southward on Central avenue and across the intersection, and the truck. The impact caused the firemen on the truck to be thrown from it. Plaintiff is a physician and surgeon and is on the staffs of a number of hospitals in Chicago. Just prior to the accident he was driving his automobile south on Central avenue in the inner lane on the west side of the street. He was driving across the intersection of Central avenue and Fullerton avenue at the time of the impact. The foregoing facts are undisputed. As to facts that are disputed: Plaintiff’s evidence tends to show that the fire truck approached Central avenue at a rate of speed in excess of thirty miles per hour and that the speed was not diminished as the truck entered the intersection despite the admitted fact that parked automobiles and standing street cars on Fullerton avenue prevented the driver of the truck from having a clear view of traffic approaching from the north on Central avenue until the truck passed the parked automobiles and standing street cars and reached the intersection; that as the truck approached the intersection no siren or other signal on the truck was sounded, or, if sounded, it was not sounded in apt time and with enough volume to warn plaintiff of the approach of the fire truck; that plaintiff, as he reached the intersection and proceeded into it, had the green light in his favor and that he was proceeding across the intersection at twenty-five miles per hour; that the truck as .it entered the intersection ran through a red stop signal without diminishing its rate of speed and that the said red stop signal did not change to green until the time of the impact; that the truck entered the intersection on the south side, or wrong side, of Fullerton avenue. Upon the question as to whether or not plaintiff was in the exercise of due care at the time of the accident and prior thereto the evidence for plaintiff tends to show that he did not see the fire truck approaching nor did he hear any siren sounding; that he entered the intersection with the green light in his favor and that he proceeded across the intersection at about a speed of twenty-five miles per hour; that the first he knew of the fire truck he “just saw a flash of red and we had an impact”; that as he saw the flash of red he spun his steering wheel to the right and that is the last he remembered. Plaintiff testified that the front part of the truck struck the left-hand doorway of his car and pushed the door against his legs.

Defendant’s theory of fact was that the siren upon the truck was being sounded as it approached the intersection and that the driver of the truck had the right to assume that plaintiff and all other drivers of automobiles near by would hear it and would draw their vehicles as near to the right curb as was reasonably possible and would remain standing until the fire apparatus had passed; that the truck slowed down in its speed as it approached the intersection and that when it entered the intersection its speed did not exceed ten miles per hour; that plaintiff entered the intersection when the green light was about to change; that plaintiff, if he had been in the exercise of due care for his own safety, should have been able, under all the circumstances, to have stopped his car in time to have avoided the collision; that plaintiff’s car hit the truck on the right front tire.

Defendant concedes that there is a sharp conflict in the evidence as to the speed of the truck as it approached the intersection and went into it and as to whether the fire truck entered the intersection against a red light. The driver of the truck testified, “My job is to get to fires as quickly as I can”; that in going to a fire he watches the traffic, trying to get through; that as he reached the intersection street cars obstructed his view and he did not see plaintiff’s car until he passed the street cars. We are satisfied that in one of defendant’s arguments, hereafter referred to, there is a clear admission that plaintiff’s theory of fact as to what actually happened at the time and place in question is sustained by the proof. That plaintiff entered the intersection when the green light was in his favor is, in our judgment, proven by the great weight of the evidence. That the fire truck, when it entered1 the intersection, ran through a red stop signal light is also proven by the weight of the evidence. One of the witnesses for plaintiff, who was driving a car southward on Central avenue about one hundred feet behind plaintiff’s car, testified that the traffic light on Central avenue changed to red at the time of the collision. The major point made by defendant as to the evidence relates to the sounding of the fire siren. It contends that the siren was kept sounding as the truck approached Central avenue and that it continued to sound until the time of the impact, that plaintiff must have heard it, and therefore it was negligence per se for him to enter the intersection even though he had the green light in his favor; that plaintiff should have had a window of his automobile open so that he might hear warning sounds and that he only had one window “slightly open, maybe a half an inch or so on one side for ventilation.” Plaintiff testified that he did not hear the siren, and a number of motorists who were on Central avenue at the time also testified that they did not hear the siren. Other witnesses testified to the same effect. There is evidence in the case that has some bearing upon the fact that plaintiff and other motorists on Central avenue did not hear the siren; it is undisputed that March 14, 1932, the day of the accident, was a sharp, chilly, cold day and that a heavy northwest ivind was bloioing; such a wind would undoubtedly tend to lessen the sound of the siren to people to the west of the approaching fire truck. The • condition of the weather also accounts for the fact that the window in plaintiff’s car was only slightly open. The jury saw and heard "the witnesses and the verdict shows that the jury believed the evidence that supports plaintiff’s theory of fact. We take cognizance of the fact that two juries have found for plaintiff. After a careful consideration of all of the evidence we have reached the conclusion that we would not be justified in sustaining any of the three contentions raised by defendant, unless we found that there is merit in an argument made by it, to which we will now refer:

Defendant argues that while the facts might make out a case of negligence against a driver of an ordinary vehicle, the driver of a fire vehicle in going to'a fire is driving “an authorized emergency vehicle” and “may assume special privileges” granted him by a statute and several ordinances of the City of Chicago, and that when the facts are considered in the light of the special privileges granted the driver of a fire vehicle, a prima facie case is not made out against defendant. To quote from defendant’s brief: “From the evidence it is clear that the facts of this case present only a typical instance of firemen driving a truck to a fire. The conduct of the driver of the truck was that of an ordinarily prudent fireman driving a truck to a fire. To get to the fire as quickly as possible it was his duty, even though he thereby risked his own life, to drive the truck at a high rate of speed and to drive on the left side of the street if traffic conditions requiredthat “the public necessity . . . that fire vehicles get to fires as quickly as possible imposes a duty on drivers of fire vehicles to do what is forbidden to other drivers. Here it was the duty of the driver to drive through the red light and to the left of the street cars. His duty was to concentrate his attention and energy on getting to the fire. He was not negligent in doing what duty required.’’ (Italics ours.) Defendant further argues that if the Uniform Act Regulating Traffic on Highways, enacted in 1935, has any bearing upon the instant case (the accident in question happened in 1932) it would be necessary for plaintiff to prove that the driver of the fire truck was guilty of “ a reckless disregard of the safety of others” and that plaintiff’s evidence does not meet this requirement. Defendant cites clause (4) of section 33 of the Motor Vehicle law of 1919, which reads as follows: “In all cases police vehicles, fire departments, vehicles transporting United States mail, and ambulances shall have the right-of-way over other vehicles. . . .” (Ch. 121, par. 234, Smith-Hurd Ill. Rev. Stat. 1931.) Defendant then cites sec. 1975, ch. 38, Revised Chicago Code 1931, entitled “Traffic,” which section provides for stop-and-go signals; also sec. 1979, ch. 38, which reads as follows: “1979. Vehicles exempted from certain rules.] The provisions of this chapter regulating the movement, parking and standing of vehicles shall not apply to ambulances or fire patrol vehicles, nor to emergency vehicles of the city of Chicago, of Cook county, or of public utilities while the -operator of any such vehicle is engaged in the, necessary performance of emergency duties.” Defendant then argues: “These provisions of the statute and the ordinance mean that in the case at bar the driver of the fire truck was not bound by the rules required to be followed by operators of other vehicles. Here the north traffic lane on Fullerton Avenue between the street cars and the sidewalk was blocked by automobiles. The driver of the fire truck passed to the left of the street cars and was thus on the left side of the street. This act by the operator of a non-emergency vehicle would have violated section 1995, providing ‘It shall be unlawful to operate any vehicle upon the left side of any roadway’ and section 2022, forbidding the operator of a vehicle to pass to the left of a street car. But these sections were not applicable to the operator of a fire truck as a result of the exemption in section 1979. Similarly he had a right to enter the intersection whether the traffic signal was green or red, since section 33 of the Motor Vehicle Law gave him the right of way over other vehicles.”

Defendant concedes that clause (4) of section 33 of the Motor Vehicle Law of 1919 and the ordinances upon which it relies have been repealed, but it contends that they were in force at the time of the accident in question and that, therefore, they apply. . As to the question of speed of the fire truck defendant states: “The fire truck was going to a fire. It is the duty of firemen to get to a fire as quickly as possible,” and, therefore, it is not negligence for the driver of a fire truck to do what duty requires of him.

If defendant’s position is sound then the legislature, in 1931, passed a sham Act — one that has no real force and effect. It has long been the established law of this State and the great majority of the States that a municipality is not liable for the unlawful or negligent acts of its officers, agents or employees while in • the performance of governmental duties, but this doctrine of immunity has often been criticized as unsound in principle and unfair in practice. Some of our Illinois courts, while enforcing the doctrine, have not hesitated to criticize it. (See Bedtke v. City of Chicago, 240 Ill. App. 493; Wasilevitsky v. City of Chicago, 280 Ill. App. 531; Schmidt v. City of Chicago, 284 Ill. App. 570.) In a large city like Chicago it has frequently happened that pedestrians and drivers of vehicles who were in the exercise of all due care for their own safety have been run down through the reckless manner in which the drivers of fire vehicles have driven through the streets in their desire to reach fires in the shortest time possible, and it was to remedy this serious situation that the legislature, in 1931, passed the Act upon which this case is based. It will be noted that the Act does not require that the driver of the truck be guilty of “a reckless disregard of.the safety of others,” before a plaintiff can recover. The Act holds the City responsible for “the negligent operation of a motor vehicle by a member of a municipal fire department while such member is engaged in the performance of his duties as fireman,” provided, of course, that the injured person be without contributory negligence. Defendant admits, as it must, that section 33 of the Motor Vehicle Law of 1919 and the two sections of the Chicago City Ordinances upon which it relies have been repealed, and it is evident that they were repealed to prevent any possible confusion in the enforcement of the Act upon which this suit is based. Section 33, so far as it applied to a motor vehicle driven by a member of the fire department, was, in our judgment, repealed by implication by the Act of 1931, and the two ordinances, so far as they applied to said vehicle, were rendered nugatory by the passage of the Act. The argument of defendant, in effect, is that the Act of 1931 is of no real force and effect, that it is, in fact, a sham statute. We refuse to so hold. The Act was passed to remedy a serious situation in this community, and it means what it plainly states.

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

. Judgment affirmed.

Friend, P. J., and Sullivan, J., concur.