author: G-art, J.

text:
    Newton P. Holden v. Edgar Terhune et al.

      Mortgages—Foreclosure—Payment in Part—Residue—Decree.

    Upon a bill to foreclose a mortgage this court declines to interfere with the finding of the trial court, that the son of the mortgagee had received payment in part on account of the same, and that he was authorized so to do.

      [Opinion filed June 14, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Egbert Jamieson, Judge, presiding.
    Mr. F. C. Caldwell, for appellant.
    Mr. Edgar Terhune, pro se.

   G-art, J.

This is a bill to foreclose a mortgage for $500, borrowed by the appellee above named from the appellant, April 17, 1882, for the term of three years, for which a note secured by the mortgage, was given. The mortgagor and a son of the appellant were partners as practicing lawyers. Upon the preponderance of the evidence the Superior Court found that, April 3, 1884, the mortgagor paid to the appellant $300 on account of the note and mortgage. This money, if paid, was not in fact paid by the mortgagor into the hands of the appellant, but into those of his son. The brief on the part of the appellant concedes, “ On the part of the appellant, we can not, in the face of the evidence, deny the bare fact that some money passed between Terhune and his partner at the time specified,” but insists that such payment, if made, was without authority from the appellant.

The son of the appellant, partner of the mortgagor, died December 1, 1884. In June, 1885, at an interview between the parties, according to the only testimony upon the subject, when the mortgagor claimed that he had paid this $300, the appellant said that if he had paid it it was all right, but he did not believe that it had been paid, and called for a receipt.

As corroborative of other evidence, perhaps not sufficient in itself, on the part of the appellees, of the authority of the son to receive the money, this declaration of the appellant, the fact of payment being proved, justified the finding of the court that the son had authority from the appellant to receive it.

The • questions in the case all relate only to the credibility of witnesses and the preponderance of evidence. The decree for the unpaid residue of the debt only, is affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Gary, J.

license: Public Domain

text:
    Chicago & Eastern Illinois Railroad Company v. Mary E. Hines, Administratrix.

      Master and Servant—Railroad, Watchman—Personal Injuries—Practice —Evidence—Instructions—Arrest of Judgment.

    1. The refusal of an instruction can not be complained of where a special finding of the jury specifically denies the hypothesis thereof.
    2. A willful neglect of means to save the lives and limbs of servants performing dangerous service, from needless peril, constitutes gross negligence.
    3. In an action for the recovery of damages for the death of a railroad employe through the alleged negligence of the company, this court holds, upon the allegation that the declaration is insufficient in not alleging knowledge by the defendant, and want of knowledge by the deceased, of the defects named, as to the first objection, that the faults, it any, touching the language of the declaration, were faults in construction, and that no such averment was necessary; and as to the second objection, that the want of an averment of such lack of knowledge can not be complained of.
    4. In the case presented, this- court declines to interfere with a verdict for $5,0G0, in behalf of the plaintiff.
    [Opinion filed June 14, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.
    Mr. W. H. Lyford, for appellant.
    Mr. William H. Barnum, for appellee.
   Gary, J.

This is an action under the statute by the appellee, for the death of her husband, John Hines, by the alleged negligence of the appellants. He was a night switchman employed by them, and was killed about ten o’clock on the night of May 6, 1887. There was a demurrer to the declaration, which the records show was overruled on motion of the appellee. They afterward moved in arrest of judgment, and now allege as error that the declaration is insufficient in not alleging knowledge by the appellants, and want of knowledge by the deceased, of the defects which are alleged to have been the cause of the accident resulting in his death.

It is held in this State, contrary to the rule laid down in Tidd’s Pr., 740, 918, that if a declaration is so totally defective as not to support the judgment, that it may be availed of by a motion in arrest, even after a demurrer thereto has been overruled, and the defendant has pleaded over. Stearns v. Cope, 109 Ill. 340. This case overrules, without alluding to, the prior cases of DeWolf v. McGinnis, 106 Ill. 553; Quincy Coal Co. v. Hood, 77 Ill. 68, and Am. Ex. Co. v. Pinckney, 29 Ill. 392.

But the rule of practice based upon the stickling of the court for its own dignity (see Tidd as cited) never applied to an appellate court, which, on a writ of error, would always examine as to the sufficiency of the declaration, as an original question. 2 Tidd’s Pr., 1169; Kipp v. Lichtenstein, 79 Ill. 358, and cases there cited; Chicago v. Turner, 80 Ill. 419, where there had been in fact a demurrer to the declaration overruled, though the report does not show it.

If, therefore, the declaration was fatally defective, and not aided by the verdict, the judgment would have to be reversed. How, as to a lack of an averment of knowledge by the appellants, although the language of the declaration is that they “ permitted the ties of its said railroad track to be and remain above the surface of the ground and the space between the said ties were not fil !e$ in,” in the first count, and “permitted a wide space to exist between the ties of said track and the switch bar ” in the second, it is apparent that if these were faults, they were faults in construction, and the case of C. & N. W. R. R. Co. v. Sweet, 45 Ill. 197, is in point that no such averment in such case is necessary.

As to the lack of averment of want of knowledge by the deceased, though some American cases can be found that support the objection, the course of pleading as shown by the English cases, is against it.

In the English cases the question has been elaborately discussed and considered, while the American cases show but little attention to it. Brizzell v. Laconia Mfg. Co., 48 Maine, 113; M. R. & L. E. R. R. Co. v. Barber, 5 Ohio St. 541; Watling v. Oastler, 23 L. T. R. 815; Mellors v. Shaw, 1 B. & S. 101 E. C. L. 437, and cases there cited. 2 Thomp. Neg., 1050 et seq.

The question is analogous to the one frequently made upon the averment of due care by the plaintiff, in an action for negligence by the defendant. While, as a general rule, the proof must show such care, the declaration need not aver it. W., St. L. & P. Ry. Co. v. Shacklet, 105 Ill. 364; C. & N. E. Ry. Co. v. Cass, 73 Ill. 394. In Bass v. C. B. & Q. R. R. Co., 28 Ill. 9, where a demurrer had been sustained below to a declaration that did not contain such averment, and its absence was urged as a ground for the judgment, the same judge who had said in Hazzard v. C. B. & Q. R. R. Co., 26 Ill. 373, that the declaration there, was bad for such a lack, reversed the judgment without alluding to what he had said before, or even to the point at all. It is true that the case of Bass did not call for any decision on that question as to instructions.

Plaintiff’s instructions given:

1. The court instructs the jury as a matter of law that the defendant company was bound to use all reasonable care and diligence to furnish the servants engaged in switching its cars with safe road-bed and machinery at its switches, and it is for the jury to determine from the evidence whether said duty was performed by said company, or whether it was negligent, and if so, how negligent it was in the performance of that duty. (Given,)

2. Even if the jury believe from the evidence that the deceased, John Hines, was guilty of some negligence at the time he was killed, still if the jury further believe from the evidence that he was using ordinary care under the circumstances, and that defendant company was guilty of negligence as charged in the declaration, and that the negligence of said Hines was slight in comparison with such negligence of the defendant, and that the defendant’s negligence was gross in comparison, and that John Hines was killed through and by reason of such gross negligence on the part of the defendant (if the jury find that it was guilty of gross negligence), then the plaintiff is entitled to your verdict. (Given.)

Defendant’s instructions given:

1. The only ground on which the plaintiff bases her claim for recovery in this case is, the defendant’s failure to fill in the space between the ties and under the switch-bars, was negligence. If she has failed to prove this, and if, on the contrary, the evidence shows that it would have been impracticable to fill in those spaces, that it would have seriously interfered with the operation of the track in question, and that in the management and operation of railroads it is-reasonably proper or necessary to leave spaces between the ties at such places, substantially the same as in the defendant’s track in question, then your verdict must be for the defendant. (Given.)

2. Even if the defendant permitted its track to be in defective condition, as alleged in the- declaration, if these defects were known to the deceased, and he still continued to work there without objection, and without any promise that the track would be made safer, the plaintiff can not recover in this case. It is the privilege of an employe, when he knows that his work is dangerous, either to quit or require that the work be made safe. If he does not quit and does not object to the danger he assumes the risk of injury from the dangerous work, and he must bear the consequences. His representatives can not complain against the employer in such a case. .(Given.)

3. The jury are instructed that the defendant was not bound to furnish an absolutely safe track for its employes to work on. If the track in question was reasonably safe and in as good condition as ordinarily prudent railroad companies kept their switch-yard tracks at such places, then the plaintiff cannot recover and your verdict must be for the defendant-{Given.)

4. If you find from the evidence that the track in question was in the same condition in which it had been during all the time that the plaintiff’s husband had been working there, that he knew the condition of the track in question all the time, and made no objection to working on it, but voluntarily continued to work for several weeks and up to the time he was killed, without any promise from the defendant that the track would be changed, then the law presumes that the plaintiff’s husband assumed the risk of injury by reason of the condition of the track, and the plaintiff can not recover for such injury. (Given.)

Defendant’s instruction refused:

5. If the plaintiff’s husband knew the condition of the track where the accident occurred, or by the exercise of ordinary care could have known its condition, then the plaintiff can not recover in this actidn. (JRefused.)

The appellants object to the first of the foregoing instructions, that, it does not confíne the jury to the consideration of the special defects which are alleged in the declaration. It is to be observed that this instruction does not profess to tell the jury upon what grounds the appellee might recover. The evidence of any other defects than such as were alleged in the declaration was very slight, and seem to have attracted no attention from anybody during the trial, and the first instruction for the appellants definitely stated the grounds of the action and confined the attention of the jury to them. To the second it is objected that there was no evidence of gross negligence by the appellants.' The consideration of this objection requires some review of the evidence, hut before proceeding to that it is convenient to say that the appellants’ refused instruction is wrong, by using the word “could” instead of “would,” and besides, in answer to a special question, the jury have specifically denied the hypothesis of that instruction, so that the refusal of it could have done no harm.

The deceased worked for the appellants as a night switch-man; in so doing he carried a lantern; while his hours of7 labor included some daylight, which was becoming longer as the spring advanced, yet it did not appear that he had ever seen the place of the accident by daylight; he had been in that employment about six weeks, and the evidence tended to show that he was a careful man; and that his death came by stumbling upon the track while about to couple a moving car to a still one, so that he fell and the car ran over him. He had been in similar employment upon other roads for nine years, and one of the complaints of the appellants, but which the record does not quite sustain, is, that they were not permitted to show how, in general, other roads construct their tracks at switches. In fact, the witness whom they were not permitted to examine on that subject, on cross-examination was recalled by them and fully examined upon it. The other instance cited by them would require considerable space to make clear, as could easily be done. The whole case comes to this: Is the evidence of such a character that the court should not permit the verdict of the jury to stand?

Where this switch was the space between the ties of the track was not tilled up with ballast. The rails of .the switch were held at the right distance from each other by iron rods clamped to the rails, and space must be left for those rods to move in, without rubbing the surface below them. The rods and the ties are substantially on the same level. At some switches the space between the ties is filled as much as may be without obstructing the movement of the rods. At this there might have been three or four inches more filling without that effect. With such filling it is and was well known to be safer to work upon, especially7 in the night. The business is one of danger at the best.

It is not denied that the first instruction on the part of the appellee states the law as to the duty of the appellants. The switch was intentionally constructed as it was. It is not an abuse of language to call a wilful neglect of means to save the limbs and lives of the men who perform this dangerous service from needless peril, gross negligence. Observation and experience teach that legal coercion is nec'essary to induce large employers of labor to do what is really practicable, to lessen the dangers which attend the services.

The legislation in England and America as to mines and machinery, municipal ordinances as to elevators, fire escapes, stairways and much else that might be referred to, all spring out of the necessity of.compelling precautions for the safety of persons in subordinate positions, that would not otherwise be adopted. And the verdicts of juries, often going too far, are in line with such municipal and State legislation. If this view is correct there was no error in submitting to the jury the question of gross negligence by the appellant. Whether the deceased had any previous knowledge of the manner in which the switch was constructed, whether his death was occasioned by it, whether he was exercising due care for his own safety, were all questions of fact. The jury is the tribunal intrusted by the law with the determination of them; and even under a system which still leaves upon the court the duty, and therefore the responsibility, of aiding the jury in reaching a right conclusion upon the facts in a case like this, that determination would be final. Mellors v. Shaw, supra.

There is no error in the record and the judgment is affirmed.

Judgment affirmed.


author: Garnett, P. J.

text:
    Sangamon Coal Mining Company, for use, etc., v. E. H. C. Richardson et al.

      Garnishment—Chap. 62, B. S.—Unpaid Balance on Shares of Stock— Inadequate Consideration—Receipt in Full—Fraud.

    1. A garnishment proceeding can only reach the debt which the judgment debtor could recover by action at law.
    2. Proceedings oE this character will not lie on the part of the creditors of a corporation to recover the unpaid balance on shares of stock where the amount received as payment in full was much less than the face value thereof, until after the agreement to that end shall have been set aside by bill in equity.
    [Opinion filed June 14, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Hollín S. Williamson, Judge, presiding.
    Mr. Charles E. Towns, for appellant.

      Mr. Frederic Ullmahtt, for appellees, Richardson, Vehmeyer and Tracy. •
    The Sangamon Coal Mining Company, having accepted the property in full payment of the subscriptions to its capital stock, has no right of action against the subscribers on their subscriptions, and the garnisheeing creditors have no other or greater rights than the judgment debtor. This general position was held in Crownover v. Bamburg, 2 Ill. App. 162; Netter v. Board of Trade, 12 Ill. App. 607; Webster v. Steele, 75 Ill. 544; Richardson v. Lester, 83 Ill. 55.
    This proceeding is, in form as well as in legal effect, an action by the Sangamon Coal Mining Company for the use of the judgment creditors against the garnishees, and on the principle laid down in the authorities above cited can not be maintained. “The principle is that process of garnishment, being a legal proceeding, given by statute, only entitles a party to recover such indebtedness as could be recovered by an action of debt or indebitatus assumpsit, in the name of the attachment or judgment debtor against the garnishee.” Webster v. Steele, supra, at p. 546.
    The eighth section of the act concerning corporations (under which this proceeding is had) only authorizes the garnishment of “ the balance unpaid by such stockholders upon the stock owned by them,” and does not in any way militate against the rule above laid down.
    The case of Osgood v. King, 42 Iowa, 478, cited by appellant’s counsel, arose under a peculiar statute of Iowa, which gave creditors a remedy against stockholders very similar to that by creditor’s bill in chancery; and the other cases cited by him—Union Mutual Life Ins. Co. v. Frear Stone Mfg. Co., 97 Ill. 537, Wenzell v. Ailing, in this court, un re ported, and Ogilvie v. Ins. Co., 22 How. 387—were creditors’ suits where the bona fid,es of the payment of the capital • stock was attacked by bill in chancery; and they are, therefore, not in point in this case.
    The payment of their subscriptions by the subscribers for stock was made in good faith, in property at fair value, and was a good and valid payment.

      The answers of the garnishees alleged that the property turned over was worth $300,000, and that the payment was made in good faith. The answers were prima facie true; the burden of disproving them was on the plaintiffs. Their only testimony was that of Starne, who testified that in his judgment the tangible property was worth about $100,000. As has already been said Starne admitted that the property had been earning a net income of ten per cent on $300,000, and that all parties acted in good faith in turning over the property, including the good will of the business, at $300,000. Tracy testified that in his judgment the property was worth fully $300,000, sustaining fully by his evidence the answers of Dresser and himself as to value.
    The plaintiff, therefore, failed on the question of fact. The trial court could not, under the evidence, have done otherwise than find against them on that question.
    Peck v. Coalfield Coal Co., 11 Ill. App., was a case very much like the present, where the subscriptions to stock had been paid in property, and an attempt was made to hold the subscribers, but the evidence showed that the payment had been made in good faith and the attempt failed. The opinion is somewhat lengthy, and we forbear quoting from it, but commend its perusal to the court.
    Among other points the opinion lays considerable stress on the fact that at the time the payment was made the judgment creditor had no claim against the company- and was not a creditor.

      “ Before he gave it credit he should have investigated its affairs, and could have seen by an examination of the books that appellant had fully paid for his stock, and owed nothing for or on account of his subscription.”
    The same fact exists in this case. The stock was paid up in January, 1882. The indebtedness to these judgment creditors accrued in January, 1887, five years afterward.
    Authorities are numerous to the effect that a subscription to the capital stock of a corporation may be paid for in any property which the corporation can lawfully purchase. If the property is accepted as payment at a valuation made in good faith, the corporation and its creditors are bound, even though the valuation be excessive. It is a question of good faith. 2 Morawetz on Corporations, Sec. 825; Thompson on Liability of Stockholders, Sec. 134; Phelan v. Hazard, 5 Dillon, 45; Toung v. Erie Iron Co., 31 N. W. Rep. 814; Coit v. North Carolina Gold Co., 14 Fed. Rep. 12.
   Garnett, P. J.

Judgment having been rendered in favor of Charles W. Merriam, Isaac S. Collins and George W. Dexter against the Sangamon Coal Mining Company, upon which an execution was duly issued and returned unsatisfied, this proceeding in garnishment under Chap. 62 E. S., was commenced in the name of the company for the use of the judgment creditors, against the appellees. The purpose of the garnishment is to recover from appellees certain liabilities which are alleged to be due from them on shares of stock which they own -in said company. Appellees do not deny that they are the holders of the shares of stock, but in defense they set up and prove that when the stock was originally subscribed the entire capital stock was subscribed by the parties who paid therefor, by conveying and turning over to the company certain property and business interests, which were accepted and received by the company in full payment of such subscriptions. The value of what was thus paid is matter of dispute, and although it was clearly of a substantial character, for the purpose of this case it may be admitted that the evidence gives good reason to believe that it was not ■worth more than one-third of the face of the stock. The inadequate value of the consideration given by the stockholders is relied upon by appellant as ground for holding garnishees on their stock liability. Can they be so held in this proceeding? That is the sole question for decision. Garnishment is a proceeding at law, and only debts which, the judgment debtor could recover by action at law can be reached by process of garnishment. In this respect the statute remains as it was when Webster v. Steele, 75 Ill. 544, Richardson v. Lester, 83 Ill. 55, and Netter v. Board of Trade, 12 Ill. App. 607, were decided. Those cases hold the negative of the proposition and are conclusive on the point. When the company-received the consideration mentioned in full payment for the stock it no longer had any right of action against the stockholders. Their liability was to the creditors of the company alone, and even the creditors could make thqm respond only after the discharge given by the company was set aside by bill in equity.

In Scovill v. Thayer, 105 U. S. 143, it appeared that when the shares of stock were subscribed for, the company agreed with the subscribers to accept a certain percentage of the face value thereof, and that agreement was carried out, certificates of full paid shares being issued. The company becoming bankrupt and the assignee seeking to recover the amounts unpaid on the stock, the holders of the shares set up a defense presenting directly the question now before us, which the court disposed of in these words: “ The stock held by the defendant was evidenced by certificates of full paid shares. It is conceded to have been the contract between him and the company that he should never be called upon to pay any further assessments upon it. The same contract was made with all the other shareholders and the fact was known to all. As between them and the company this was a perfectly valid agreement. It was not forbidden by the charter, or by any law or public policy, and as between the company and the stockholders was just as binding as if it had been expressly authorized by the charter. If the company, for the purpose of increasing its business, had called upon the stockholders to pay up that part of their stock which had been satisfied by discount, according to their contract, they could have successfully resisted such a demand. Ho suit could have been maintained by the company to collect the unpaid stock for such a purpose. The shares were issued as full paid, on a fair understanding, and that bound the company. * * * In this case there was no obligation resting on the stockholders to pay at all until some authorized demand in behalf of creditors was made for payment. The defendant owed the creditors nothing, and he owed the company nothing save such unpaid portions of his stock as might be necessary to satisfy the claims of creditors. Upon the bankruptcy of the company his obligation was to pay to the. assignees, upon demand, such an amount upon his unpaid stock as would be sufficient, with the other assets of the company, to pay its debts. He was under no obligation to pay anything until the amount necessary for him to pay was at least approximately ascertained. Until then his obligation to pay did not become complete. But not only was it necessary that the amount required to satisfy creditors should be ascertained, but that the agreement between the company and the stockholder, to the effect that the latter should not be required to make any further payments on his stock, should be set aside as in fraud of creditors. Ho action at law would lie to recover the unpaid balance due on the stock until this was done.” The same rule was held in Peck v. Coalfield Coal Co., 3 Ill. App. 624.

The last case was reversed in the Supreme Court, but without affecting this question. There is no error in the judgment and it is affirmed.

Judgment affirmed.


text:
    Addie Rothschild v. Charles J. Bruschke et al.

      Negotiable Instruments—Note—Suit on Parties—Pleading—Amendment.

    The filing of a new declaration in the name of the person to whom a note was indorsed, together with his substitution as party plaintiff after the institution of suit thereon in the name of the indorser, will not warrant a judgment in behalf of the indorsee.
    [Opinion filed June 14, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Johít P. Altgeld, Judge, presiding.

      Messrs. Flower, Remy & Holstein, for appellant.
    Messrs. Allan C. Story and Fred. W. Story, for appellees.
   Garnett, P. J.

This action of assumpsit in the Circuit Court was brought originally in the name of S. Kuhn and others as plaintiffs, against the appellees. The foundation of the suit was a promissory note executed by appellees to the order of Addie Rothschild. The note was indorsed and delivered by her to S. Kuhn & Sons, the original plaintiffs, who were the legal and equitable owners and holders of it when this suit was commenced.

Some time after the beginning of this suit S. Kuhn & Sons re-transferred the note to appellant, and leave was then given in the court below to amend by substituting the name of appellant as plaintiff in place of S. Kuhn & Sons, and the same was done, a new declaration being tiled with her name appearing therein as plaintiff. The case was tried by the court without a jury; finding and judgment for defendants, and appeal .by plaintiff. It is a well settled rule that the plaintiff, to recover, must be the legal owner of the cause of action. 1 Chitty on Pleadings, 2; Chadsey v. Lewis, 1 Gilm. 153; Kyle v. Thompson, 2 Scam. 432; Lohman v. Cass Co. Bank, 87 Ill. 616; Sweet v. Garwood, 88 Ill. 407. At the time the suit was commenced Kuhn & 'Sons were the legal owners of the note. The suit was properly in their names. It follows that she could not have maintained the action if it had been originally brought in her name. Otherwise she and Kuhn & Sons might have maintained separate actions at the same time against the makers when the legal and equitable title to the note was in Kuhn & Sons only. Her position is. not improved by her acquisition of the title after the suit was commenced. She comes into the .case with the same right she would have had if the suit had been commenced in her name. C. & N. W. Ry. Co. v. Jenkins, 103 Ill. 588; McCall v. Lee, 120 Ill. 261; Kenyon v. Sutherland, 3 Gilm. 104; Burnap v. Cook, 32 Ill. 168.

The judgment is affirmed.

Judgment affi'rmed.


author: Moran, J.

text:
    Michael Myers and Cornelius Griffin v. Anna Maher.

      Real Property—Cloud—Judgment—Bill to Remove—Unrecorded Deed — Resulting Trust—Homestead—Doioer—Subrogation.

      Upon a bill Bled to remove the lien of a judgment obtained against the husband of petitioner as being a cloud upon her title to certain real estate, this court holds that the petitioner was not in possession of the premises in question at the time said judgment was obtained under an unrecorded deed, the same having been filed for record after such lien attached, but that she would be entitled, upon sale thereof under execution, or upon her own petition, to receive certain sums paid by her to liquidate mortgages thereon, and that her claim therefor should properly take precedence of liens accruing subsequently to such payments.
    [Opinion filed June 14, 1889.]
    Appeal from the Circuit Court of Cook County; the lion. Murray F. Tuley, J udge, presiding.
    Messrs..Young & Makeel, for appellants.
    In this State a judgment creditor is protected under the conveyancing act as a purchaser, and the lien of his judgment attaches to whatever interest the record discloses to be in the judgment debtor at the entry of the judgment, as against every other claim of which the creditor has no notice. Martin v. Dryden, 1 Gilm. 205, 206, 217, 218, 219; Massey v. Wescott, 40 Ill. 163; McFadden v. Worthington, 45 Ill. 366.
    Property standing of record in the name of the husband can not be regarded as held in adverse possession by the wife, when it is jointly occupied or used by both husband and wife. Stanton v. Kirsch, 6 Wis. 341; Slocum v. Slocum, 9 Ill. App. 143, 144.
    Therefore no claim can be made in this case that the complainant held possession adverse to that of her husband, of that part of the building occupied by both of them, namely, of the flat in which they resided.

      Evidence to sustain a resulting trust must be very clear, and is always received with great caution. Mahoney v. Mahoney, 65 Ill. 407.
    With so much for preface we come to the two main questions in the case. Was there a resulting trust of the whole property? And was there such adverse possession by the wife as put the judgment creditors upon notice of her resulting trust? The correct position, we claim, will be found in the negative of both propositions.
    There was no resulting trust of the whole property. The decree in this respect is against the facts, even as they appear upon complainant’s own showing.
    Mr. Maher paid $1,200 for the lot in 1883. Of that amount, there was furnished on behalf of complainant, the principal sum of $500, with whatever interest may have accrued upon it at the time it was turned over. The evidence, however, leaves that interest an unknown quantity. Neither dates nor stipulated rate is furnished, nor does it appear that any fixed amount was at any time settled, or agreed upon, as the amount to be allowed for interest. But passing that weak point in complainant’s case, and allowing the highest amount anywhere claimed as interest, namely $200, and adding that to the principal of $500, we have $700, the largest amount to which complainant had any claim in the hands of Mr. Maher at the time when he bought the lot. It is said that he paid for the lot out of the loan from Greenebaum upon the Seymour street lot, but that was his own lot. The extent of the claim of Mrs. Collins upon it was an indebtedness of (at the outside) $700. This indebtedness was transferred to complainant, and is the original basis, and the only original basis, of her claim to be entitled to a resulting trust. She had no further interest in, or right to, the Greenebaum loan. Besides, the Greenebaum loan was but $1,000, whereas Mr. Maher paid $1,200 for the lot in question. Some of his own money was therefore used to purchase it. Of the $1,200 which was used to buy the lot, $500 of it was at the very least the money of, and was furnished out of his own funds by Mr. Maher. The complainant could not, therefore, in any aspect of. the case, have a resulting trust in the lot, at the time of its purchase, to exceed a part; and that part could not have exceeded seven-twelfths of the whole. Hor could this aliquot interest be afterward varied by her contributing more than her quota (had she so contributed, but when examined it will appear that she contributed less,) toward improving and preserving the property. Perry v. McHenry, 13 Ill. 227; Latham v. Henderson, 47 Ill. 185.
    There was no such adverse possession by her as put the judgment creditor upon notice of her claims.
    About the facts bearing on this point there can he no controversy. They are made out by the testimony of the complainant, and some of the tenants, called by her as witnesses. She let the two flats not occupied by herself, her husband and their children, to tenants who paid the rent to her and who applied to her for repairs when needed; and she used the rents to support the children. Whether any written leases were made does nut- appear, nor does it appear whether she gave any written receipts for rents paid.
    In this connection it is necessary to bear in mind that Mr. Maher, in person, transacted the business of buying the lot and erecting the building; that the title stood of record in his own name; that he resided in part of the building, occupying it jointly with his wife, the complainant; and that she applied the rents received to his business, that is, in supporting his children, which certainly was his business. Suppose an inquiring purchaser or incumbrancer had ascertained all these facts, would he be expected to infer therefrom that she held adverse to her husband? Would any ordinarily careful person, knowing these facts and taking into account the family relations between the parties, hesitate to extend credit to the husband on the strength of his being the owner of the property? A wife’s possession as against the husband’s creditors is difficult to establish. Harrison on Contracts of Married Women, Sec. 575.
    “ The family relation is such, and the probabilities of ownership so great on the part of the husband, that a plain and satisfactory case should be made out before the wife can be permitted to hold property against honest creditors.” Earl v. Champion, 65 Pa. St. 195.
    Where husband and wife are living together, “ possession does not furnish the same test as to title between them, as it would when applied to strangers.” Stanton v. Kirsch, 6 Wis. 341.
    To constitute adverse possession there must be such appropriation as will apprise the community in the vicinity that the land is in the exclusive use of the person claiming the possession. Morrison v. Kelly, 22 Ill. 610, 623.
    Notice by possession to be sufficient must be so open and visible as to arrest attention, and as to apprise the world of the occupancy, and of who the occupant is, or how he can readily be ascertained. It must be exclusive. A user in common with others is not hostile in character. Truesdale v. Ford, 37 Ill. 214; Stone v. Cook, 79 Ill. 425, 426, 429.
    This doctrine is equally applicable whether she rely on the resulting trust or upon the unrecorded deed. The nature of the possession was insufficient, under the authorities, to support either title. As to that deed, it seems out of the question that it can cut any figure, at any rate. It was not recorded until after the entry of the judgment. It never took effect for want of delivery. Herbert v. Herbert, Breese, 354; U. M. L. Ins. Co. v. Campbell, 95 Ill. 231; Benneson v. Aiken, 102 Ill. 287. Unless it can be regarded as a deed of gift or family settlement. But, in that case, it would be in fraud of the rights of creditors; and an effectively adverse-possession would not support it.
    Messrs. Goldzier & Rodgers, for appellee.
   Moran, J.

The bill in this case was filed to remove the lien of a judgment obtained by appellants against the husband of appellee, from a certain lot and the improvements thereon, as being a cloud on appellee’s title to the same.

The fact on which the relief asked is sought, are as follows: In October, 1882, William H. Maher, the husband of appellee, was the owner of a certain lot in Cossit’s addition to Chicago, and was owing to Margaret Collins, the mother of appellee $500, three hundred of which was secured by mortgage on said Cossit street lot, and two hundred of which was without security. Maher wished to receive more money on said lot, and applied to Margaret Collins to release her mortgage upon it, which she did upon condition Maher should agree that he would put the money which he owed to her inter a home for appellee. This he agreed to do, and the mortgage was thereupon released. In the summer of 1883, said Maher purchased the lot here involved, situated on Macal ester Place, in Chicago, for the sum of $1,200, and in May, 1884, he erected a building thereon which cost about $5,000, and which was divided into flats. Maher, before he bought said lot, told appellee to look at it, and asked her how she would like it there, but nothing was said about giving her the lot, and Maher took the title in his own name. He mortgaged the lot for $300, which money went into the improvement which he placed thereon. When the building was completed, in September, 1884, appellee, with her husband and children, moved into it, and occupied the middle flat, and she rented the upper and lower flats to tenants and always collected the rents herself, her husband having nothing to do with the renting, and she always thereafter paid the taxes on the property and the interest on the mortgage out of the rents.

Appellants obtained a judgment against said William H. Maher on December 28, 1885, for the sum of $610.72, on which execution was issued within a year. On January 12, 1886, a deed from William H. Maher to appellee, conveying the lot in question in consideration of love and affection, and the sum of $600,” was placed on record. The deed was dated and acknowledged October 7, 1885, but was never in the possession of appellee, and she knew nothing of it till she found it in her husband’s papers after his death. He died December 27, 1886. The Circuit Court granted the prayer of the bill and removed the judgment as a lien on appellee’s title.

To sustain this decree it is contended that appellee was in possession of the premises under an unrecorded deed, at the time appellant’s judgment was obtained. This contention can not be sustained. If it be assumed that such a possession as appellee had by living u pon the premises with her husband, would be notice to creditors and purchasers of an unrecorded title derived from him (a question on which we express no-opinion), it must be admitted that there could be no notice of title before the inception of the title itself. The deed could not take effect until it was delivered, and it is very clear that it was delivered at the earliest, when it was filed for record, some fourteen days after the lien of appellant’s j udgment attached.

It is contended, further, that there was a resulting trust in the property as it was purchased with money which was in fact appellee’s, the gift of her mother, and that her residence on the property and collecting the rents thereof was notice of her equitable title. If we were compelled to decide the case on this point we should have some difficulty in holding that a resulting trust arose in favor of appellee by the transaction as shown in this record, but it is unnecessary to labbr with the question, for the reason that if she had a resulting trust and such possession as she had is to be treated as notice of it, it would exist to the extent only to which she furnished the purchase money. The lot cost $1,200, and the most she can be found to have furnished is $700. On this assumption her equitable interest would extend to only seven-twelfths of the property. Five-twelfths would still be subject to the lien of the judgment, and hence the decree can not be sustained on this theory. 13 Ill. 233; Latham v. Henderson, 47 Ill. 185.

It is suggested that appellee’s husband had assumed an obligation in consideration of the release of the Margaret Collins mortgage to buy a home and put it in the name of appellee; that he did buy this lot and put her in possession of it as a homestead, and that this was evidence of his intention to perform the obligation; and that having put her in the actual possession, and having only the legal title in himself, he was capable of receiving a delivery of the deed as her agent from himself. We can not assent to this theory. It is fraught with too much danger to creditors to find favor in the courts. If appellee was seeking to assert a title against pure volunteers perhaps the doctrine would sustain her.

There is a prayer in the bill that if the judgment shall be found to be a lien, appellee may be subrogated to the prior liens on the property which she has discharged, and that her homestead be protected and her dower assigned, etc. There is no basis in the bill for granting such relief. Appellants have not attempted to sell under their execution, and when they shall, they will be compelled to proceed in accordance with the law with reference to the homesteads.

As it appears from the evidence that appellee has paid off mortgages upon the property with money given her by her mother, whenever the question arises she should be subrogated to the liens that she has discharged. It would seem just that she should look to the pz-operty to be reimbzzrsed for such payments, and that her claims in that respect would take pz-ecedence of liens which accrued subsequently to those which she discharged with money arising from other sources than the rents and profits of the property in question.

The decree of the Circuit Court will be reversed with directions to the Circuit Court to dismiss appellee’s bill without prejudice, unless appellee shall elect to apply to the Circuit Court for a sale of the property and a distribution of the proceeds on the basis of giving; precedence to the liens to which she may be found entitled to be subrogated, and to the right of homestead under the statute.

Reversed and remanded with directions.


author: Gary J.

text:
    Chicago & Northwestern Railway Company v. Henry P. Becker and Nathan Underwood, for use, etc.

      Railroads—Contracts of Affreightment—Voidability—Rebates—Assignment of Claim for.

    In an action against a railroad, company for the recovery, for the use of third persons, of certain rebates claimed to be due upon freight shipped, an order directed to such company by the shippers having requested such payments to be made to them, this court holds that said order referred only to sums already due or to become due on freight shipped at the date thereof; that payments by the company to a subsequent assignee was a good defense against its makers, and that as to the beneficiaries named, the same would be good so far only as in equity they were the owners of the claim sued upon.
    [Opinion filed June 14, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Elliott Anthony, Judge, presiding.
    Mr. W. C. Goudy, for appellant.
    The principal question in this case is as to the validity of the agreement made by Becker & Hnderwood with the freight agent of the railway company. It was made in violation of the law which prohibits discrimination. The object was to give a preference to Becker & Hnderwood over other persons shipping the same kind of property to be carried between the same points. Such an agreement is against public policy, and prohibited by the rules of the common law, and also by tiie statute of this State. Ho recovery can be had on such a contract.
    It is scarcely necessary to cite authorities upon this question, the principle being so well established. It is sufficient to refer to the case of L. D. & S. R. R. Co. v. Ervin, 118 Ill. 256, which is a case directly in point. The action in that case was brought by the Ervins against the railway company to recover for rebates claimed to be due them on the contracts for the shipment of grain. It was there held that such a contract came within the provisions of the act approved May 2, 1873. The court also held that such a contract was a discrimination prohibited by the common law, and for these reasons they held that there could be no recovery.
    The court in that case say: “ Unjust discrimination by common carriers was not sanctioned by the common law. In the case of Chicago and Alton Railroad Co. v. The People, 67 Ill. 16, this court say: £ The duties and liabilities of a common carrier are clearly defined by the common law, and have been so defined for centuries. * * * Another well settled rule of the common law in regard to common carriers is, that they shall not exercise any unjust or injurious discrimination between individuals in their rates of toils.’ In Messenger et al. v. Pennsylvania Railroad Co., 36 N. J. Law, 407, it was decided that an agreement by a railroad company to carry goods for certain persons at a cheaper rate than they will carry, under the same conditions, for others, was void, as creating an illegal preference. The plaintiffs in that case had made shipments at the regular rates,under an agreement that they should be allowed such drawbacks as would bring their freights twenty and ten cents per hundred lower than the lowest rate given to any other person. The suit was to recover such drawbacks. The contract was held, upon the principles of the common law, to be illegal, and on that ground a demurrer to the declaration was sustained. Whenever the contract which the party seeks to enforce, be it express or implied, is expressly or by implication forbidden by the common or statute law, no court, either of law or equity, will lent^ its assistance to give it effect. 2 Chitty on Contracts, 971. This is the well settled rule of law.
    Mr. E. A. Otis, for appellees.
    In the leading case of Wabash Railway Co. v. People, 118 U. S. 557, to which the learned counsel of appellant, though. he argued it in the Supreme Court of the United States, discreetly omits any illusion, it is squarely decided that the Illinois statute did not apply to shipments from one State into another, and that, in so far as it did assume to so operate, it was unconstitutional and void.
    The legality of the contract, then, is absolutely unaffected by any statute, State or Federal, and the whole matter turns upon the question whether such a contract is void at the common law.
    In the absence of any statute, the Supreme Court of Illinois has uniformly sustained just such agreements as that presented by this record. In the case of Toledo, Wabash & Western Railway Company v. Elliott, 76 Ill. 67, the court hold that such a contract was not illegal, even under the statute of 1871 then in force, for the reason that the carrier was to be paid the usual, customary tariff, and the matter of rebate in the charges was a matter of private agreement between the carrier and the shipper with which the carrier was required to comply, and a judgment was affirmed against the railway company for the rebate it had agreed to pay. Erie & Pacific Dispatch v. Cecil, 112 Ill. 181.
    “ The contract in question seems to be assailed mainly on the ground that if given effect, it would lead to great abuses and place great associations, like the defendant, completely at the mercy of its agents. * * * But the question we are considering is not a new one in this court. Toledo, Wabash & Western Ry. Co. v. Elliott, 76 Ill. 67, like the present case, was an action to recover a rebate on freight paid by the shipper for the transportation of a lot of corn under a special agreement. In that, as in this case, the contract under which the shipment was made was assailed on the ground that it was illegal and that the agent had no authority to make it. In answer to these objections this court then said : ‘ There was certainly an apparent authority in the local agent to contract for carrying the grain under some special arrangement. It seems quite certain, from all the evidence, the corn was shipped over defendant’s road, on the agreement the company would allow plaintiffs a rebate on the usual charges; and having availed itself of the benefits of the contract, the company ought not now to be permitted to repudiate it, on the grounds their agent had no authority to make it. * * * The contract was to carry the grain at the customary rates. The rebate in the charges was matter of private agreement between the carriers and the shippers.’ What was then said is equally applicable here, and under the authority of that case we must hold the agreement in this valid and binding.”
    In the case of I. D. & S. R. R. Co. v. Ervin, 118 Ill. 250, cited by counsel, the court reconsider the rule laid down in Erie & Pacific Dispatch v. Cecil, 112 Ill., for the specific reason that the contract in that case was made under the subsequent statute of 1873, and the difference between the acts of 1871, under which the Elliott case was decided, and the later act of 1875, was not called to the attention of the court. The decision of the court is, that under the statute of 1873 a contract to pay rebates by a carrier was prohibited by that law, and was, therefore, illegal and void. It simply affirms the doctrine that contracts for the repayment of rebates on shipments wholly within the State of Illinois were prohibited by the statute, and can not be collected. We have no cause of complaint at this rule. The case under consideration lies entirely outside of it and involves rebates on shipments from interior points in the State of Iowa to Chicago in the State of Illinois, over which the Supreme Court of the United States hold, in the Wabash case already cited, the statute has no control or effect. It is true, the court in the Erwin case say that unjust discrimination by common carriers was not sanctioned by the common law, but the court are careful to base the decision on the statute of 1873, and I respectfully insist that what is intimated as to the illegality of these contracts at common law seems to be only dicta, and was never intended to, and did not, overrule its prior decisions, that in the absence of statute, and even under the act of 1871, such contracts would be enforced.
    “In Johnson v. Pensacola and Perdido Pail road Co., 16 Fla. 623, Mr. Justice Westcott, in discussing a similar question to the one involved here, has collected many authorities bearing upon this point, and the conclusion which he reaches is: ‘ That as against a common or public carrier every person has the same right; that in all cases where his common duty controls, he can not refuse A and accommodate B; that all the entire public have the right to the same carriage for a reasonable price at a reasonable change for the service performed, and the commonness of the duty to carry for all, does not involve a commonness or equality of compensation or charge; that all a shipper can ask of a common carrier is, that for services performed he shall charge no more than a
      reasonable sum to him.’’ This conclusion is sustained by numerous authorities, both English and American. Peak v. North Staffordshire Railroad Company, 10 H. L. 511; Bostard v. Bostard, 2 Show. 82; Harris v. Packard, 3 Taunt. 264; Citizens’ Bank v. The Nantucket Steamboat Company, 2 Story, 35; 4 Otto, 155; 1 Chitty, Cont., 684. In Fitchburg Railroad Company v. Gage, 12 Gray, 393, the Supreme Court of Massachusetts held, that ‘ a railroad corporation is not obliged, as a common carrier, to transport goods and merchandise for all persons at the same rate,’ the common law rule being that equal justice be done to all parties. ‘But the equality which is to be observed in relation to the public and to every individual consists in the restricted right to charge in each particular case of service a reasonable compensation and no more.’ ”
   Gary J.

This is an action by Henry P. Becker and Nathan Underwood, composing the firm of Becker & Underwood, to recover for the use of Benjamin W. Underwood and Eben Mathews, composing the firm of Underwood & Mathews, rebates on freights of wheat from Iowa, which the appellants had agreed to pay to the appellees. One of the defenses by the appellants is that such an agreement is against public policy and void at common law, and therefore the suit can not be maintained.

In the uncertain state of the law in this State upon that question, it will not be here discussed, as perhaps before another trial it may be authoritatively settled by the Supreme Court. The facts were all before the Superior Court by a stipulation between the parties. The parties for whose use the suit is brought claim under an order in these words:

“ Dixon, Ill., April 30, 1885. “To the Chicago & North-Western Railroad Company:
You will please pay to the firm of Underwood & Mathews all claims and moneys due or to become due us, for overcharges or rebates on freight shipped over your railroad, which claims and moneys have been this day assigned to said Underwood & Mathews.
(Signed) Beckeb & Undebwood.”

And a part of the stipulation is, that Underwood & Mathews were, and still are, creditors of Becker & Underwood, and received said order as security therefor. This order was presented to the railway company before May 11, 1885, and they paid on it to Underwood & Mathews, rebates on wheat shipped during the months of January, February and March, 1885, $968.91. Afterward the railway company paid a subsequent assignee the money now in controversy, amounting, without interest, to $1,606.89, for rebates, but of that sum less than $150, if no error has been made in computation, is upon wheat shipped before the date of the order. The stipulation says that in the early part of the year 1885, the agreement for rebates was made; that the rebates paid by the railway company to the subsequent assignee, accrued to the appellees under that agreement. The agreement was without limit as to time, and by its own force, would continue until one or the other party rescinded it, or the business governed by it, ceased.

The agreements of men in business are not to be held void for mistakes in grammar, but the fair construction of this order is that no such mistake was made. The appellees used the verb “ to ship ” in a past tense in order to express a past action. Fisher v. Minot, 10 Gray (Mass.), 260. Neither the firm giving nor the one taking the order could have supposed that the appellees were hypothecating all their future business with the railway to Underwood & Mathews. The order only covers money due or to become due on wheat that had been shipped when the order was drawn. To construe it as embracing future shipments takes from the appellees as a firm all right to receive any rebates from the appellants, whether accruing under the then existing agreement or otherwise, at least so long as any portion of their debt to Underwood & Mathews remained unpaid. The recovery of $1,940 is therefore unwarranted by the terms of the order.

But there is another ground upon which the right to recover fails. Payment' to the subsequent assignee was a good defense against the appellees themselves. It would be good against the parties for whose use the suit was brought, so far and so far only as in equity they were the owners of the claim sued upon.

How much the appellees still owed them at the time of the trial upon the debt that the order was given to secure does not appear. In any event there could not be a larger amount recovered than the appellees still owed upon the debt.

The judgment must be reversed and the cause remanded.

Reversed and remanded.


author: Garrett, P. J.

text:
    Stephen Brain et al. v. Mary Foster.

      Chattel Mortgages—Conditions—Sale—Trover—Tender.

    1. To maintain trover the plaintiff must at the time of the conversion have, as against the defendant, aright of property in the chattel converted, and the actual possession or right to possession thereof.
    2. In equity, where a tender is made by a mortgagor of the amount due after default in the payment, the same must be kept good in order to discharge the mortgage.
    3. At law such tender does not operate to revest the title in the mortgagor so as to enable him to recover. The mortgagee is not bound to receive the amount due and restore the property.
    4. This court holds as erroneous a judgment in behalf of the plaintiff in an action of trover brought to recover the value of certain property alleged to have been converted by the defendants to their own use upon the ground that the same included the value of property mortgaged, they as mortgagees being rightfully in possession thereof under the terms of the instrument.
    [Opinion filed June 14, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.
    Messrs. B. M. Shaeener and G. W. Woodbury, for appellants.
    Mr. Fred. S. Moffett, for appellee.
   Garrett, P. J.

Appellee sued appellants in trover to recover the value of certain personal property, which she alleged belonged to her and was converted to their own use by appellants. There is no dispute that in the fall of 1886 she executed to the appellants two chattel mortgages on the property in question (excepting a small part thereof); that about March 1, 1887, the mortgagees, with the consent of the mortgagor, took possession of the same, placing it in a warehouse, where it remained until June 10, 1887, and that they, several months later, sold for less than the amount due and costs, substantially, all the property covered by the mortgages. The sales were made in pursuance of powers given in' the mortgages.

To maintain trover the plaintiff at the time of the conversion must have as against the tort feasor a right of property in the chattel converted, and the actual possession, or right of possession thereof. Cooley on Torts, 442-443; Owens v. Weedman, 82 Ill. 409.

To meet this established rule appellee endeavored to prove that she made a tender to the appellants of the amount due them. Conceding that the form and amount of the tender were sufficient (which is by no means clear) the fact remains that it was not made until after default in payment. At the time appellee claims to have made the tender all the debt secured by one of the mortgages was due by the terms thereof, and the debt secured by the other was partly due by its terms, and the balance had become due by the exercise of the option given to the mortgagees.

Mo effort was made to prove that the alleged tender was kept good, nor was the money brought into court. If appellee’s contention on this point is correct the result is that appellants have lost their security by means of the discharge of the mortgage, effected by the tender, which is now of no avail to them. The rule in equity governing such cases in this State is, that when the tender is made after default in payment it must be kept good in order to discharge the mortgage. Crain v. McGoon, 86 Ill. 431.

At law the rule seems to be more favorable to appellants. Jones, in his work on Chattel Mortgages, Sec. 632, says: “At common law a tender made after forfeiture does not operate to revest the title in the mortgagor, so as to enable him to recover at law. The mortgagee is not bound at law to receive the amount due and restore the property. If the mortgagor has any right it is merely an equitable right of redemption.” But if we apply the equitable rule as above announced, it is a complete defense for appellants so far as the mortgaged goods are concerned. If the tender was not effectual to release and discharge the mortgage it is obvious that the light of the mortgagees to the possession was not divested. If the mortgagees were entitled to the possession, the mortgagor could have had no right of possession and so could not maintain trover for the goods mortgaged. The amount of the recovery was for a much larger sum than the value of the property not included in the mortgage, which appellee claims was converted by appellants. If the property was converted by them upon which they had no lien, appellee may have a right of action in trover for the value thereof, but the judgment appealed from includes the value of the property mortgaged, and is therefore erroneous.

The judgment is reversed and the cause remanded.

Reversed and remanded.


author: Gaey, J.

text:
    Nellie Lynn et al. v. Ellen Lynn, Adm’x et al.
    Administration—Debts— Sale—Will — Deed— Misdescription — Reformation—Consideration.

    1. A deed, the consideration of which was not valuable, can not be reformed, no matter how meritorious the consideration or motive for making it may have been.
    2. In the case of powers, equity will not aid an imperfect execution for the benefit of grandchildren.
    3. Upon an appeal, in administration proceedings, from a decree of sale of real estate for the payment óf debts, the fact being that the will, under which the same was derived by deceased, was followed by a deed by the maker thereof, attempting to convey the property in question in trust for a person since deceased, and surviving grandchildren, said property having been misdescribed therein, this court holds that said deed can not be reformed, that the will in question vested a good title in the beneficiary named therein, and declines to interfere with such decree.
    [Opinion filed June 14, 1889.]
    Appeal from the Probate Court of Cook County; the Hon. J. C. ENickeebockee, Judge, presiding.
    Messrs. John N. Jemison, and B. M. Saundees, for appellants.
    Mr. B. W. Ellis, for appellee.
   Gaey, J.

This is an appeal from the decree of the Probate Court directing the sale of real estate to pay the debts against the estate of George Lynn, deceased, of which the appellee is administratrix.

William Lynn Sr., the ancestor of most of the parties to this proceeding, died about November 15, 1874. In his lifetime he owned the premises in controversy. He left a will devising them to George Lynn. That will was wrongfully destroyed after the death of William Lynn Sr., but in a chancery suit in the Circuit Court of Cook County, to which all his heirs as well as his widow were parties, the will was established by a decree entered June 18, 1878. June 5, 1873, by a deed under which the present controversy arises, William Lynn Sr., and his wife, conveyed to one of the appellees what were intended to be these premises, but by mistake inserted ten instead of sixteen as the number of the section, and there is on the face of the deed no other description by which the consequences of that mistake can be avoided. This conveyance was in trust for the support of a daughter, since dead, without issue, and after her death for the benefit of the children of . certain children of William Lynn Sr., who should be living when the daughter died.

The deed named as the consideration 83,000, but in fact there was no valuable and no other still continuing consideration, than such as may be implied by law from the relation of grandfather and grandchild. The will was executed before the deed, and the deed was intended to supersede the will as to these premises. The only question before this court is, whether that deed may be reformed upon abundant extrinsic evidence, so that these premises shall pass by it.

The great current of authority is, that a deed, not for a valuable consideration, can not be reformed, however meritorious the consideration or motive for making it may be. Froman v. Froman, 13 Ind. 317; Powell v. Morisey, 98 N. C. 126; Hunt v. Frazier, 6 Jones’ Eq. 90; Brown v. Kennedy, 33 Beav. 133. Even in the case of powers, which are quasi trusts, a court of equity will not aid an imperfect execution for the benefit of grandchildren—only for a wife or legitimate child. Tollet v. Tollet, and notes, 1 L. C. in Eq. 365. It follows that the devise to George Lynn vested in him the equitable as well as legal title to these premises, and the Probate Court properly directed them to be sold for the payment of debts against his estate. Had there been any equity in favor of the appellants, for which his title should have been divested, that court had jurisdiction to inquire into it and refuse a sale. Sec. 101, Chap. 3, R. S., as amended by act of June 15, 1887. Newell v. Montgomery, 30 Ill. App. 48.

The decree must be affirmed.

Decree affirmed.


text:
    A. Bittinger v. Charles Druck.

      Assault—Evidence—Self-defense —Instructions.

    1. An instruction assuming to set forth all the facts which warrant a recovery, but omitting one material element in the hypothesis, is bad.

      2. When the facts relied on by the plaintiff are necessarily antagonistic to and exclude those relied on by the defendant, the instructions for the plaintiff need only summarize all the elements in the cause essential to a recovery on his theory.
    [Opinion filed June 14, 1889.]
    Appeal from the Superior Court of Cook County; the. Hon. Kirk Hawes, Judge, presiding.
    Hr. E. K. Smith, for appellant.
    Hesers. Thornton & Chancellor, for appellee.
   Garnett, P. J.

In an action for personal assault hy appellee against appellant there was a verdict for $500 against the defendant, and judgment thereon in the Superior Court, from which the defendant brings this appeal.

The defense relied upon at the trial was son assault demesne. Whether the plaintiff or the defendant was the first aggressor was a question presented to the jury by evidence of a very conflicting character, and the question should have been submitted to the jury by the instructions of the court. But in behalf of the plaintiff the jury was charged, that if they believed from the evidence .that the plaintiff was assaulted by defendant as charged in the declaration, and sustained injury thereby, they should find the issues for the plaintiff. It was not disputed that the defendant clinched with the plaintiff. The point of contention was whether defendant in closing with the plaintiff was acting in self-defense against a prior assault of the plaintiff. The evidence may have convinced the jury that Druck was the first offender, but the charges of the court directed them, in substance, that they need pay no attention to that circumstance.

It is a case in which the instruction assumed to array all the facts which warranted a recovery, but omitted one material element in the hypothesis. There was no other instruction given which supplied this omission. Repeated decisions of this court and the Supreme Court of this State have proscribed instructions of this character. Examples of this are found in Cushman v. Cogswell, 86 Ill. 62; W., St. L. & P. Ry. Co. v. Rector, 104 Ill. 297, and Emery v. Ginnan, 24 Ill. App. 65.

When the facts relied on by the plaintiff are necessarily antagonistic to and exclude those relied on by the defendant, the instructions for the plaintiff need only summarize all the elements in the cause essential to a recovery on his theory. In such a case “any attempt to embody in one instruction all the hypothetical elements contained in the distinct and necessarily opposing views would make the veriest nonsense.” City of Chicago v. Schmidt, Adm’x, 107 Ill. 186. The defense in the case in hand presents no facts which are necessarily antagonistic to, and exclusive of, the fact of assault by the defendant. That the plaintiff made the first assault is entirely consistent with the facts supposed in the instruction under review, and whether the fact was as alleged by the defendant must be submitted to another jury.

The judgment is reversed and the cause remanded.

Heversed and remanded.


text:
    Augustus E. Bournique v. George A. Arnold et al.

      Master and Servant—Contract of Service—Balance Due—Recovery of —Conditions—Architect’s Certificate—Refusal to Accept—Quantum Meruit Agency—Evidence.

    1. In the absence of fraud the certificate of an architect, calling for a payment from an owner to a building contractor, is conclusive between the contractor and the owner.
    2. The return by a contractor to an architect of a final certificate amounts to the assertion that payment is recoverable without the same.
    3. In such case no recovery can be had under the contract, the architect refusing the request of the contractor to again deliver the certificate in question.

      [Opinion filed June 14, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Jorra P. Altgeld, Judge, presiding.
    Mr. George W. Brandt, for appellant.
    Messrs. Duncan & Gilbert, for appellees.
   Garnett, P. J.

In the court below appellant was sued in assumpsit by appellees March 2, 1886. The latter were carpenter contractors, who agreed with appellant to do all the carpenter work for a building that appellant ivas erecting in 1883. Their contract was in writing, by the terms of which they agreed to furnish the materials and do the work according to the plans and specifications made by Burnham & Boot, architects, who, they also agreed, should approve and certify the same by writing or certificate under their hand. Appellant on his part agreed thereby to pay to appellees the contract price ($11,254.30) upon the presentation of certificates signed by Burnham & Boot. As the work progressed certificates for various amounts were signed by the architects, delivered to appellees and paid by appellant. Claiming that they had completed the work as agreed, appellees soon thereafter, and about December 1, 1883, applied to Burnham & Boot for a final certificate. There was some dispute or misunderstanding between the contractors and architects, growing out of extra work alleged to have been done, and of other work and materials embraced within the contract, which the architects claimed had been omitted by appellees. At that time, however, the architects handed to appellees a paper, which is said to have been a final certificate, for about $1,700, or, as one of the witnesses states, the sum of $1,747. After examining the paper the appellees, being dissatisfied with the amount named therein, handed it back to the architects, since which time no witness claims ever to have seen it, nor was it ever presented to or seen by appellant. Appellees then filed in the Circuit Court a petition for a mechanic’s lien for the amount alleged to be due them, which in due course was heard and dismissed without prejudice in January, 1886. Soon thereafter they applied to Burnham & Boot for the certificate, which had been made out and delivered as above stated, but they were told by the architects that they had tendered a certificate once and would not do it again. That was over two years after the certificate was first delivered to, and rejected by, appellees. The proof concerning the contents of the certificate was somewhat vague, but, conceding it was in all respects satisfactory, the inquiry remains, was the presentation of the certificate to appellant a conditionprecedent'to recovery? ISTo evidence was given of the value of the work and materials, appellees relying solely on parol proof of the amount stated in the certificate as conclusive of the amount due them. The contract of appellees required them to do three distinct things before they could call on appellant for money: (1) They were to furnish labor and materials; (2) procure a written certificate from Burnham & Boot as to the amount which appellant should pay to them; (3) present the certificate to appellant. Whatever difference in judgment there may be as to the importance to appellant of the third requirement, there can be no division of opinion as to his right to demand that, under the stipulations of the contract, appellees yield to the demand; and as no fraud or unfair practice was resorted to for the purpose of securing their consent, no good reason can be given why they should be relieved of their undertaking. If it were necessary to assign a cause for appellant’s desiring a written certificate the task would not be difficult. In general terms it is well known that the human memory is treacherous, while words and figures committed to writing are more enduring, and can not, by anything short of a crime, be made to tell more than one story. Then it must be remembered that one employing an architect, relies not only on his skill but on his responsibility. In the absence of fraud the certificate of the architect is conclusive between the owner and the contractor, but it cuts no figure between the owner and the architect. The responsibility of the latter can not be thus written away by his own hand. The owner is deeply interested in having written evidence over the architect’s own signature as to his action in the premises, and when he makes the presentation of such evidence to himself a condition of payment to the contractor, the latter having agreed to the condition, will not be heard to say that he will not perform that agreement, but that he will do something else which he considers just as well for the owner. It is enough for the owner to say by the contract, it is thus written. As it was written so it must stand and be enforced. Barney v. Giles, 120, 154.

The case here presented is not one where the certificate was destroyed by the act of God, the public enemy or inevitable accident. But appellees, assuming to pass upon their legal rights, wilfully and deliberately disqualified themselves for compliance with their contract. Having received the certificate upon which they now rely, after examination of the same, they deliberately returned it to Burnham & Boot. In so doing they assumed the burden of proving that a case had arisen which entitled them to payment from appellant without a certificate. We surmise that they endeavored to maintain that position until the mechanic’s lien case was dismissed. Having failed to sustain that contention they now strive to restore things as they were when they had the certificate in their possession, not by performing their contract, but by substituting something in the place of performance. But the fact is overlooked that, so far as appellees are concerned, the relations of Burnham & Boot to appellant terminated the instant the certificate was delivered to appellees. When they returned the paper to Burnham & Boot they took upon themselves all risk of so doing. It was not returned to appellant’s agents, for Burnham & Boot were no longer his agents in any transactions with appellees. If Burnham & Boot after that time were agents of any person for the holding of the certificate, they were the agents of appellees, and by them alone they now find themselves refused possession of the paper. The contract of appellees not having been performed they can not recover thereon. If there can be any recovery on a qua/ntu/m meruit (as to which we express no opinion) no case appears from this record for such recovery, as no proof of the value of the labor and materials was introduced on the trial. The judgment is reversed and the cause remanded.

Reversed and remanded.


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    Chicago & Northwestern Railway Company v. George Trayes.

      Railroads—Negligence—Personal Injuries—Signals—Ordinance—Evidence.

    1. Negligence is a question of fact for the jury. r 2. To instruct a jury as to the weight of affirmative and negative testimony is erroneous.
    3. A red lantern hung to the corner of an engine tender is no compliance with an ordinance requiring “ a brilliant and conspicuous light.”
    4. In an action for the recovery of damasres from a railroad company for personal injuries, alleged to have been suffered through its negligence, this court declines to interfere with the verdict for the plaintiff.
    [Opinion filed June 14, 1889.]
    Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding.
    Messrs. W. C. Gotjdy and W. B. Keep, for appellant.
    Mr. W. S. Johnson, for appellee.
   Gary, J.

From the testimony of the various witnesses in this case it appears, that on the dark and stormy evening of the 25th of November, 1883, while the atmosphere was saturated with rain drops and sleet, “ which froze as they fell,” and the moon, which lacked but three days of being full, shone bright and clear from unclouded skies through a balmy air several degrees above the freezing point, the appellants backed a locomotive and tender eastward on the north track on Kinzie street, across Bobey street, in Chicago, and struck the appellee, who was crossing Kinzie street on Bobey from the northwest toward the southeast corner of the intersection of the two streets. He received the blow upon his right shoulder, and without going into detail it suffices to say that he has substantially lost the use of his right arm. ' An ordinance of the city put in evidence required the locomotive to carry “ a brilliant and conspicuous light on the front end.” In fact there was probably a red lantern hung to what was, as then moving, the northeast corner of the tender. At the same time that the locomotive and tender were entering upon the intersection of the streets from the west, a west bound freight train on the next track south, was leaving it.

It may well be, that if the bell was being rung on the locomotive some twenty or more feet from the end of the tender, that the noise of the passing freight train drowned the sound of the bell. This lantern and bell were the only warning, beyond the presence of the locomotive and tender themselves, of their approach. Whether the question be one of fact or law, it can hardly be said—the character of locomotive and headlights being taken into account—that a red lantern hung to the corner of the tender, complies with the ordinance; in a dark night an observer might readily suppose that a man was carrying it; and a practice of backing a locomotive and tender across streets of a populous city, in .the early hours of dark nights at the same time that heavy freight trains—what in this record is called a double freight train—are crossing in the contrary direction, with no greater precaution than this record shows, it may be safely predicted, will sooner or later injure somebody.

These considerations were for the jury. The emphasis with which the counsel for the appellants pronounces a recent decision of this court that “ the question as to what constitutes negligence is one of fact and not of law,” * * * “a heresy * * * not supported by either principle or authority,” comes with a strange sound from one who has been “a brilliant and conspicuous light” in his profession, through all the hundred and odd volumes in which the Supreme Court have reiterated the doctrine, from the case of the G. & C. U. R. R. Co. v. Yarwood, 17 Ill. 509, where they said, “ Eegligence is a question of fact arid not of law, and the court had no right to'determine it,” down to L. S. & M. S. R. R. Co. v. Brown, 123 Ill. 162, where they repeat that negligence is “a question of fact to be determined by the jury, upon consideration of all the facts and circumstances proved.” If or have they stopped at that. In Fairbury v. Rogers, 98 Ill. 554, in a connection too long to quote, they said: “ The Circuit Court, in charging a jury, is confined to questions of law. It is not proper that expressions of opinion by this court that certain circumstances show or constitute a culpable want of care, should be given to the jury in an instruction. However sound such opinions may be, they relate alone to a question of fact, which, in the first place, by our law, must be submitted to the unbiased opinion of the jury.” And for repeating to the jury, as an instruction, the opinion of the Supreme Court in relation to facts in the same case, when it was before them upon appeal from a former judgment, these appellants, by other counsel, procured the reversal of the second judgment in C. & N. W. Ry. Co. v. Moranda, 108 Ill. 576. The jury were instructed far more favorably to the appellants than the law of this State warrants. The refusal to instruct the jury as to the weight of affirmative and negative testimony, was not error; giving such instruction would be. Rockwood v. Poundstone, 38 Ill. 199; L., N. A. & C. Ry. Co. v. Shires, 108 Ill. 617. In a case recognizing the rule that affirmative is more to be regarded than negative testimony, it is still held that “ it is the sole province of the jury to determine the weight that evidence should receive, and equally so to consider conflicting evidence, without any assistance from the court.” Frizell v. Cole, 42 Ill. 362. Similar expressions can be found in many volumes of the Illinois Reports, 32-388, 41-254, 77-379.

The only real question in the case is whether the jury ought to have found the verdict that they did. The evidence on the part of the appellee warrants it. The only substantial conflict in the evidence was as to the character of the night. Hpon the jury the Legislature of this State has placed the burden and responsibility of deciding between conflicting witnesses “withoutany assistance from the court.” For a court to interfere with their decision upon mere dissatisfaction—the opinion of one man against twelve—upon a matter upon which each of the thirteen is equally competent to judge, is usurpation. It does not become this place to inquire whether there is any justification or excuse for the very general generosity of jurors, at the expense of the proprietors of the ponderous and dangerous agencies of modern civilization.

There is no error in the record, and the judgment must be affirmed.

Judgment affirmed.


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    Malcom McNeill v. Maurice Lacey and George A. Moore. Same v. Maurice Wendell.
    Attachments— Garnishment—Assignment—Insolvent Corporations— Officers of—Personal Claims—Payment.

    1. This court can not consider alleged errors against persons not parties to a given appeal.
    2. The officers of an insolvent corporation must not use lip its assets in the payment of their own claims.
    [Opinion filed June 14, 1890.]
    Appeal from the Superior Court of Cook County; the Hon-Kirk Hawes, Judge, presiding.
    Mr. Charles H. Aldrich, for appellant.
    Messrs. William Nunn, and Flower, Eemy & Holstein, for appellees.
   Gary, J.

These two cases involve the same question, and the first has in it also the question of fact, whether the appellees were creditors at the time of the transaction which is the subject-matter of litigation, of the affirmative of which the record in that case contains satisfactory evidence which it would be useless to repeat.

The cases are attachments by the appellees, respectively, against the World’s Pastime Exposition Company, in which the Illinois Central Railroad Company was summoned as garnishee. The railroad company paid the money now in controversy into court. The appellant claimed it by assignment from the exposition company, and the appellees by their garnishment. The appellant’s brief argues the insufficiency of the evidence to support the verdict against the exposition company on the issue made by the affidavit for an attachment, but that question is not before the court, as the company has not appealed. Whether there be any error against the company, can not be determined on an appeal to which the company is no party. Several questions of practice, of no importance, are made, which need no attention.

The real controversy is upon the fact that the company, being insolvent, and the appellant being its president and a large creditor, and the railroad company owing it about $4,800-, it transferred the claim to the appellant, presumably, though the record does not show it, to apply on account of the debt to the appellant, no other consideration being shown.

The case of Beach v. Miller, 130 Ill. 102, is emphatic that the officers of an insolvent corporation may not use up its assets in payment of their own claims. That an attempt to do so is void as against the process of an outside creditor.

So much of the money in court as is necessary to pay these appellees was, therefore, rightly adjudged to them.

Judgment affirmed.


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    Andrew Portoues v. Henry Holmes et al.

      Mechanics' Liens—Intervening Petitions—Parties—Pleading—Chap. 82, H. S., Hecs. 1, 2, 3 and 5—Master—Finding of—Exceptions.

    1. Alleged errors that do not affect the party complaining should not be considered.
    2. The first and second sections of the Lien law. Chap. 82, R. S., give a lien in all cases for work or material furnished at the instance of the owner of any interest in land for anything which, by being furnished for that purpose and attached to the premises, becomes the property of such owner as part of his interest in the land.
    3. Petitions for mechanics’ liens must truly describe the contract entered into, what was done under it, and if no time was fixed by it for performance the law will imply it to be a reasonable time, and in the latter case if performance is complete within a year, the lien attaches.
    4. It is not necessary by express words to negative Sec. 3 of the Lien law, which sets forth the exceptional cases in which no lien can exist, but only by affirmative description of the contract so far as it was express, and of the acts done in the performance of it, show what the whole case is, and if so shown nothing repugnant to the provisions of such section appear, a lien exists.
    5. A decree adopting a master’s report amounts to the overruling of exceptions thereto.
    6. Upon a petition filed for a mechanics’ lien this court holds that the complaint of the defendant that the cestui gue trust under a trust deed was not made a party defendant should not be considered, upon the ground that the error, if any, does not affect him; that the contention that certain intervening petitions do not specify when work was tobe done and material furnished is not supported by the evidence; that the fact that the decree of sale is several as to the petitioners in the several petitions, cures the omission of one of two pieces of land from the original petition, but included in the intervening petitions, in so far as to warrant the participation of the original petitioners in the proceeds of the sale decreed in behalf of the intervening petitioners, and that the defendant’s exceptions, save one, to the master’s report, can not be considered for want of certainty.
    [Opinion filed June 14, 1889.]
    Appeal from the Superior Court of Cook County; the Hon. Henry M. Shepard, Judge, presiding.

      Messrs. Wilson & Zook, for appellant.
    Messrs. Thornton & Chancellor, for appellees.
   Gary, J.

This is a mechanics’ lien case in which the appellee Holmes and his partner, Elliott W. Sproal, filed the original petition against the appellant and Albert White, as owners. The other appellees filed intervening petitions.

The appellant objects that though the holder of á deed of trust in the nature of a mortgage is made a defendant, the cesíui que trust is not. It is a sufficient answer that if there were any error in that respect, it does not affect the appellant, and he can not complain of it. The same rule applies whether the case be at law or in equity. Grier v. Puterbaugh, 108 Ill. 602; Worden v. Crist, 106, 326. And such cestui que trust is not injured, for the decree is that the sale of the premises is to be subject to the incumbrance, and besides, none, but parties are affected by the decree. Dunphy v. Riddle, 86 Ill. 22.

It is also objected that the intervening petitions, one on behalf of a plumber, and the other for lumber furnished, do not specify when the work in the one ease and the lumber in the other was to be done or furnished. Those petitions do show that the work was done and the lumber furnished by May 31, 1884, for houses being erected in 1884, and that payment was to be made within four months after the last work done or lumber furnished. In general terms it may be said that the first and second sections of the statute of March 25, 1874, Chap. 82, R. S., in relation to liens, give a lien in all cases for work or material furnished at the instance of the owner of any interest in land, for anything, which, by being furnished for that purpose and attached to the premises, becomes the property of such owner as part of his interest in the land. The third section specifies the exceptional cases in which no lien shall exist.

The fifth section is: “The bill or petition shall contain a brief statement of the contract on which it is founded, if expressed, or if the work is done or materials are furnished under an implied contract, the bill or petition shall so state and shall show the amount due and unpaid, a.description of the premises which are subject to the lien, and such other facts as may be necessary to a full understanding of the rights of the parties.” How the rule of pleading, at law, has been settled for generations, that in pleading, whether upon contracts or statutes, if there be first “a general clause, and afterward a separate and distinct clause, something which would otherwise be included in it, a party relying upon the general clause, in pleading may set out that clause only, without noticing the separate and distinct clause which operates as an exception.” Such an exception is matter of defense, and ought to be shown in pleading by the opposite party. 1 Ch. Pl. 246-7, 16th Am. Ed.

And it is only untechnical, and a matter of form, to omit what the law implies from the facts that are alleged. Ibid. 309; Kinsley v. Bill, 9 Mass. 197. And “although the rules of pleading in courts of equity, especially in the case of bills, are not so strict as those adopted in courts of law, yet in framing pleadings in courts of equity the draftsman will do well (says 1 Daniell’s Ch. 362) to adhere as closely as he can to the general rules laid down in the books which treat of common law pleadings, whenever such rules are applicable to the case which he is called upon to present to the court, ” and he follows with good reasons for his advice. It must be confessed that from the numerous decisions of the Supreme Court on the subject of mechanics’ liens, an anxious reader is left in painful uncertainty as to what rules apply to petitions for their enforcement; but the conclusion at which this court has arrived is that the petitioner must truly describe the contract he actually had, and'what he did under it, and then, if no time was fixed by it for performance, the law will imply that it was to be in a reasonable time.. That portion of the contract is then an implied contract, and if performance was complete within a year from the commencement, the lien attaches. It is therefore not necessary, by express words, to negative the language of the third section, but only by affirmative description of the contract so far as it was express, and of the acts done in the performance of it, show what the whole case really is; and if, so shown, nothing repugnant to the provisions of the third section appear, a lien exists.

The decree is for the sale of premises described as the north forty-nine feet of one lot and the south nineteen feet of another. The original petition only describes the forty-nine feet. The intervening petitions describe both parcels. If the decree must stand or fall upon the original petition, it must be reversed. But the decree is several as to the petitioners in each petition. If the decree is right as to the intervenors, so much of it would stand, and the sale take place, though the part relating to Holmes and S proal were reversed. Rees v. Chicago, 38 Ill. 322, and cases there cited. This defect in their petition was not adverted to in the Superior Court, and is plainly a mere slip. As under the decree for the intervenors the premises are to be sold, no wrong is done by permitting the original petitioners to share in the proceeds. If, indeed, the appellant shall pay off the intervenors, without a sale, it probably will follow that a sale of nineteen feet under the decree in favor of the original petitioners will pass no title to the nineteen feet, being beyond the jurisdiction of the court on that petition. In that contingency, by some appropriate proceeding, as by a bill of review, the decree may be made to conform to the petition. It is not a practical matter affecting the real rights of the parties or the justice of the case.

The appellant says truly in his brief, that the case was such as requires a reference to a master. That subject has been considered in Huling v. Farwell this term. In fact there was a reference “ to take proofs and report the same,” and it is objected that he had no authority to report conclusions. The appellant treated the case in the Superior Court as properly referred to the master with full powers to him. Before the master, the appellant tiled objections to the master’s conclusions and repeated them as exceptions to the report before the court. In all this he followed the regular order of chancery practice. But in his objections and exceptions, the same want of certainty appears in this case, as in that last cited. It can not be ascertained whether any one of them is well taken without a full examination of all the evidence in the case. One already familiar with the case would know what part of the evidence to look to for information as to either claim, or any question involved, but to a court taking up the record as a new matter, the exceptions only show that the appellant is dissatisfied with the report, in general and detail.

The only exception that can be considered without examination of the whole evidence, is, that the master has reported a prior incumbrance, but has not reported the separate value of the land and improvements. If the premises were to be sold discharged of that incumbrance, that exception would be well taken under Sec. 17 of the Lien act, but as they are to be sold subject to it, the separate value is immaterial.

The record does not support the assertion in the brief that it does not appear that the master’s report was before the court. The report is copied into the record as filed June 3, 1885, and the decree recites that the cause came on to be heard upon certain bills and answers “together with the report,” etc.

There is no formal order upon the exceptions to the report, but a decree adopting its conclusions in effect overrules the exceptions. Anderson v. Henderson, 124 Ill. 164. The rule at law is the same as to the motion for a new trial. Parr v. Van Horne, 40 Ill. 122. Aside from the conduct of the appellant in treating the proceedings before the master as on a full reference, his objections to the master’s authority are answered by the case of Hess v. Voss, 52 Ill. 472. Before making the point that the sale will be without redemption the writer of appellant’s brief should have read Sec. 16, Ch. 77, R. S., and several sections following.

What may be the real merits of the several claims upon the facts, is a subject upon which this court can make no inquiry without departing from the regular course of chancery practice, and making a precedent, to follow which would impose upon this court labors not belonging to it, and which, with the press of business, it has no time to perform. The decree is affirmed.

Deoree affirmed.