source: Caselaw Access Project

author: Wall, J.

license: Public Domain

text:
    Gipps Brewing Company et al. v. City of Virginia.

      Municipal Corporations—Ordinance— Violation—Penalty—Recovery of —Intoxicating Liquors—Service—Default—Motion to set Aside—Sec. 5, Practice Act—Pleading.

    1. In an action of debt for the recovery of penalties for divers violations of an ordinance touching the sale of intoxicating liquors, this court holds as erroneous the assessment of attorney’s fees in a certain sum upon each conviction, as costs.
    2. A failure to allege in the declaration the existence of a provision warranting such assessment in an ordinance, will prevent the recovery thereof.
    [Opinion filed February 14, 1890.]
    Appeal from the Circuit Court of Cass County; the Hon. Cyrus Epler, Judge, presiding.
    Mr. A. A. Leeper, for appellants.
    Mr. R. W. Mills, for appellee.
   Wall, J.

This was an action of debt by the city of Virginia against the appellant companies to recover a penalty of not less than 8100 and not more than 8200 for each of sundry alleged violations of an ordinance of the city in regard to the sale of liquors.

A default was taken, and the court assessing the damages found defendants guilty of twelve violations, and imposing a fine of $100 for each violation, rendered judgment for $1,200 and for costs, “including the sum of $5 attorney’s fees on each of said convictions, amounting in the aggregate to $60.” The item of $60 is erroneous. The law makes no provision for such costs. The court might have assessed the penalty at any figure within the limit fixed by the ordinance alleged in the declaration, but it had no power to assess attorney’s fees asl costs. Counsel suggest the ordinance so provided, but assuming the city had power to incorporate such a provision in its ordinance, it is not so alleged in the declaration. Hence upon the record as it now appears, there is fatal error.

Before final judgment was entered the defendants moved to set aside the default, on the ground, mainly, that the service of process was had upon one Saal, as the agent of the defendants, and that upon the facts disclosed by the affidavit filed in support of the motion, the said Saal was not, at the time of service, an agent of the defendants within the meaning of the fifth section of the practice act.

The motion was denied, and error is assigned upon that ruling. A majority of this court are of opinion the motion was properly overruled. The judgment will be reversed and the cause remanded with directions to permit the defendants to plead to the merits of the action.

Reversed and remanded.


text:
    Lucinda Huling, Executrix, etc., v. Lizzie Huling.

      Husband and Wife—Alienation of Affection—Husband—Advice as to Conduct of Married Person by Parent—Evidence—Instructions—Damages.

    1. There can be no waiver of the rights of an insane defendant touching the introduction of the evidence of an incompetent witness.

      2. Such introduction is not cured by the fact that the testimony of the insane defendant was admitted without objection.
    3. It is improper in an action by a wife against the parents of her husband for the recovery of damages alleged to have arisen through the alienation of his affection for her by reason of acts and advice on t.heir part, to allow her to testify to conversations between herself and husband touching their living together and the attitude of his parents toward them.
    4. A parent may in good faith and from worthy motives, in a moderate, temperate and careful manner, advise his son as to his domestic affairs without incurring liability if the same influences a separation between son and wife.
    5. An instruction in behalf of the plaintiff in such case ignoring the relation of father and son and the question of good faith, is bad.
    [Opinion filed November 23, 1889.]
    Appeal from the Circuit Court of McLean County; the Hon. Owen T. Reeves, Judge, presiding.
    Mr. John T. Lillard, for appellant.
    Mr. Frank R. Henderson, for appellee.
   Wall, J.

This was an action on the case by the appellee against Nathaniel Hiding and Lucinda Huling, his wife-The declaration alleged that the defendants, conspiring together, did alienate the affection of John Huling, husband of the plaintiff, and thereby induced him to abandon and desert her. After the suit was begun, Nathaniel Huling was adjudged insane, and upon the trial Lucinda Huling, who had been appointed his conservator, represented and defended for him. When the plaintiff’s testimony wras closed the suit was dismissed as to Lucinda Huling. The jury found the issue for the plaintiff, and assessed her damages at §1,250, upon which, after denying a motion for new trial, the court rendered judgment. Since the trial the defendant, Nathaniel Huling, died, and this appeal is prosecuted by Lucinda Huling, as his executrix.

Various errors are assigned, but we shall notice' such only as seem to be most important. It appears from the evidence that the plaintiff, who had been for some time employed as a domestic in the family of the defendants, became unduly intimate with the said John, who was also a member of the family; that she and John were secretly married under circumstances showing that he was quite reluctant to take the step, and that he immediately left her and never sustained conjugal relations with her. A child was born to her about seven months after the marriage, and, more than two years after the marriage, this suit was brought. At the time of the marriage the plaintiff was about nineteen years of age, and John was over twenty-one years of age. At the trial the plaintiff was a witness in her own behalf, and was permitted to testify as to the declaration of the defendant, Nathaniel Huling. The plaintiff was competent as against the defendant, Lucinda Huling, but, as is conceded, she was not competent against the insane defendant, Nathaniel.

The court so stated in the presence of the jury, but counsel waived the objection as to the conversation the witness was then proceeding to detail. It was the duty of counsel and of the court to protect the insane defendant from the evidence of an incompetent witness. The conservator could not waive the rights of her ward in this respect. Cartwright v. Wise, 14 Ill. 417; Rhoads v. Rhoads, 43 Ill. 239; Stark v. Brown, 101 Ill. 395; Fietsam v. Kropp, 6 Ill. App. 144. Many other cases illustrating the principle involved might be recited but it is unnecessary.

The effect of this testimony was hurtful, nor was it counteracted by the evidence of the insane defendant who was permitted to testify, apparently without objection. He was incompetent because non compos mentis (1 Greenleaf on Ev. Sec. 365), and whatever he might say would have little or no weight with the jury as against the testimony of adverse witnesses who were sane. It is also objected that the plaintiff was permitted to detail the conversations she had with her husband, as to their purpose of living together and as to the opposition of his parents to the marriage. This was manifestly not competent because it was purely hearsay and was highly calculated to prejudice the rights of the defendants. White v. Russ, 47 Mich. 172; Preston v. Bowers, 13 O. St 1. Other objections to the testimony of the plaintiff need not be discussed as upon another trial they can be obviated by excluding the witness altogether. The instructions given for the defendant advised the jury that a parent has a right in a moderate, intelligent and careful manner to advise a son as to his domestic affairs, and even as to living with his wife, and that if such counsel and advice be given in good faith and from worthy motives, the wife has no cause of complaint, even though such advice may contribute in some decree to the result of causing a separation. The distinction between the case of a stranger and that of a parent has been frequently recognized and it is no doubt well settled that a parent may, when acting in good faith, give his advice on this important subject without incurring liability. Hutchison v. Peck, 5 Johns. 195; Smith v. Lyke, 13 Hun, 204; Payne v. Williams, 4 Baxter, 583. Schouler’s Domestic Relations, Sec. 41; 2 Hilliard on Torts, 510.

It is suggested by counsel for appellee that in all the cases where this distinction is stated, the action was by the husband for alienating the affection of the wife. Probably this is due to the fact that the action for such an injury was rarely, if ever, brought by the wife.

Whatever may have been the right of the wife in this regard at. common law there is no doubt that under the legislation of this State she may maintain the action—Bassett v. Bassett, 20 Ill. App. 543; and there seems to be no sound reason why the parent might not in good faith, and from proper motives, render his advice to a son as well as to a daughter. True, such advice might be more appropriate and needful and more potent in the case of the daughter than in the case of a son, but this would be a difference in degree only and not in principle. We must hold, therefore, that the instruction referred to was properly given on behalf of the defendant.

Turning now to the instructions given for plaintiff it will be found that they ignore the relation of the defendant to the husband, and that they authorized the jury to find the defendant guilty although he may have acted in the utmost good faith and moderation. Notably is this so in-the fourth, where it was said that if the defendant did in any way or manner, or by any means, influence ” the husband to abandon the wife he would be liable, and that it was “ immaterial in this case whether there may have been other facts or circumstances contributing to cause such wrongful desertion.”

The instructions as a whole were inconsistent and contradictory, and in a case like this where, on the proof, there is, to say the least, no little doubt as to the right of recovery, it is important that the law should be given with such accuracy as to make it clear that it was properly understood by the jury.

For the reasons indicated the judgment will be reversed and the cause remanded.

Reversed and remanded.


author: C. B. Smith, J.

text:
    Second District
    December Term, 1888.
    James P. Riely v. R. T. Barton.
    [Four Other Cases.]

      Attachment—Insufficient Abstract—Jurisdiction—Service by Publication —Damages—Exceptions.

    1. A certificate setting forth service by publication, should show that it was made by the publisher of the paper in which it appeared.

      2. A certificate imperfect in this respect may be cured by other proof of publication in the paper in question.
    3. The remedy, in case of dissatisfaction with an assessment of damages on default, is a motion to correct the same.
    4. This court will not review the assessment of damages on a default, in the absence of a bill of exceptions setting forth all the evidence heard.
    5. The presumptions are always in favor of the correctness of the judgments of courts of common law having general jurisdiction.
    [Opinion filed May 25, 1889.]
    In error to the Circuit Court of Kankakee County; the Hon. Alfred Sample, Judge, presiding.
    Mr. Daniel H. Paddock, for plaintiff in error.

      Mr. G. S. Eldridge, for defendant in error.
    The criticism upon the proof of publication has no force whatever. The law does not specifically define how publication may be proved. It merely authorizes a certificate of publication to be made by the publisher when no other mode is observed. Starr & C. R. S., p. 1674, Sec. 1.
    The statute simply provides that the certificate shall be sufficient evidence of publication, but does not exclude any other legitimate proof of publication. In Barnett v. Wolf, 70 Ill., p. 79, the Supreme Court said: “The statute has, however, provided that where the service is by publication, a proper certificate of the printer shall be sufficient evidence of service to confer jurisdiction; * * * but the statute has not declared that this shall be the only means of proving the publication.”
    This, of course, may be established by affidavit.
    In Haywood v. Collins, 60 Ill. 331, cited by appellant, the certificate was held void because it did not appear that the party malting it was the publisher, and such also was the case in Haywood v. McCrory, 33 Ill. 459.
    Of course, these unsupported certificates afforded no legitimate proof that the notice had been duly published;, but in the pending cases the actual publication of the notices, as required by law, was proved by the positive sworn statements contained in the affidavits made by Lake, which shows a strict compliance with the statute in the several cases. There can be no question, therefore, but that the evidence of publication was abundantly sufficient to give the court jurisdiction, and the record shows that proof of publication was made and approved by ’the court in each case.
    If the defendants were dissatisfied with the assessment of damages, their remedy was to move to vacate the assessment. Motsinger v. Colman, 16 Ill. 71; R. R. Co. v. Ward, 16 Ill. 522 ; Myers v. Phillips, 72 Ill. 460; McKenzie v. Penfield, 87 Ill. 38; Gradle v. Hoffman, 105 Ill. 147.
   C. B. Smith, J.

These five cases are brought here on writ of error to Kankakee county, and are all so nearly alike in the questions involved that they may be considered together. They all involved the validity of certain attachment proceedings begun in each of the cases in Kankakee county, and prosecuted to judgment against each of several plaintiffs in error.

The abstract of the record in each case is so brief and imperfect that we get a very imperfect knowledge of the proceedings had in the court below. Indeed, the abstracts are little more than an index to the record. We might be well justified in affirming all these judgments, for want of such an abstract as the rules of the court require; but we have waived that right and examined the questions raised, and passed upon the merits.

Only two questions are raised on these records by plaintiffs in error. First, they deny that the record shows affirmatively (as it must) that the court has jurisdiction of the plaintiffs in error; and, second, they insist the court erred in the assessment of damages. Upon both of these assignments of error the cases are all substantially alike. It is insisted that the certificate of publication of C. A. Lake, the publisher, of notice to the defendant in attachments, was not sufficient to give the court jurisdiction of the parties. The only objection to this certificate is that Lake does not describe himself as publisher of the paper in which the notice was published—simply signing himself as “ O. A. Lake,” without designating himself as publisher, or as having anything to do with the paper.

In all other respects the certificate seems to be formal and in conformity to the requirements of the statute. If this certificate was the only evidence in the record of any proof of notice to the defendants in the attachment proceedings, it would be insufficient and could not confer jurisdiction on the court. Haywood v. McCrory, 33 Ill. 459; Haywood v. Collins, 60 Ill. 331.

But in addition to the certificate, the judgment of the court, set out in the record, recites that the court heard proof, and the court finds that the notice was published for the time and in the manner required by law. The following is the finding of the court upon that subject-in each of the cases. “And now the said plaintiff makes due and satisfactory proof to the court of the due publication of the notice of the pendency of this suit as to said defendant. And it further appearing to the court that said notice was published for the length of time and in the manner provided by law, and was of sufficient form to notify said defendant of the pendency of this suit at this term of court, and the time and place where this court is holden, and that unless she appeared and tiled her plea herein as required by the rules of this court to do, a judgment would be entered against her and in favor of said plaintiff. And now the clerk of this court also comes and files his certificate of the mailing of said notice to the postoffice address of said defendant, as set forth in the affidavit of non-residence herein.’’ This finding of the court recited in the judgment removes the objection urged, for we are bound to presume that the court satisfied itself that Mr. Lake was the publisher of the paper. This it might do by a separate affidavit or certificate, or it might hear oral testimony on the subject. Pierce v. Carleton, 12 Ill. 358.

The publication of notice to the defendant in each of the cases being fully proven to the court, as required by law, the court then obtained jurisdiction of the person of the defendants, and levying the writ on the property gave the court jurisdiction of that also. Objection is also made to the bonds in each case. While some of the bonds were informal and seem to be wanting in technical accuracy, still we think they were all substantially good. The second objection urged is that the court erred in the assessment of damages. The plaintiffs in error are not in a position to raise that question. In all the eases a special appearance was entered by the respective defendants in the attachment, and the appearance limited for the purpose of moving to quash the attachment writ and to dismiss the suit. The court overruled this motion in all the cases, and the defendants, abiding by this motion, declined to plead to the writ or the action and suffered defaults in each case, and the court thereupon assessed the damages as follows: “ And now the court hears the evidence, the arguments of counsel", and being fully advised in the premises, finds the issues for the plaintiff, and assesses said plaintiff’s damages at §--and orders judgment for said damages. It is therefore considered by the court that said plaintiff have and recover of said defendant the said sum of $-, together with his costs of suit herein, and that said plaintiff have special execution against the property attached herein for said sum of $-and costs,” the blanks above being filled in each case with the amount found due.

The default admitted the amount claimed in the affidavits for the attachment, and it was a matter of no importance whether there was an affidavit of merits or not, aside from the attachment affidavit. The court might accept the amount stated in the affidavit or might require additional proof of the amount due. The record recites that the court did hear evidence upon the question. That is all the law requires. If the defendants below were not satisfied with this assessment, it was their privilege and duty to move the court for its correction. Motsinger v. Colman, 16 Ill. 71; R. R. Co. v. Ward, 16 Ill. 522; Gradle v. Hoffman, 105 Ill. 147. Before this court can review the assessment of damages on a default, there must be a bill of exceptions showing all the evidence heard by the court on the hearing.

It is urged that the record in one of the cases shows that the court allowed compound interest on a record of a judgment from Virginia. There is no proof in the record to show that this was erroneous. There is nothing to show that by the laws of Virginia compound interest may not be allowed.

The presumption is always in favor of the correctness of the judgment of courts of common law of general jurisdiction; and in the absence of proof showing the assessment of damages erroneous, we must presume it was correct. There are some other minor objections made by plaintiffs in error, but none of which we think has any merit. Finding no substantial error in any of the cases, the judgment in each and all of them is affirmed.

Judgment affirmed.


author: Lacey, P. J. C. B. Smith, J.

text:
    Matthew Kingman v. Patrick Harmon, Guardian, etc.

      Mortgages—Foreclosure—Interests of Minor Heirs—Estoppel—Wills.

    1. In proceedings to foreclose a mortgage executed under the approval of the County Court, conveying the property of minor heirs, they can question its validity.
    2. The purchaser of incumbered lands is not estopped from denying the validity of a mortgage thereon merely because he prepared the petition to the County Court to procure leave to mortgage, and advised the mortgagee, though not as his attorney, that the loan contemplated would be a safe one.
    3. In the case presented, the interest of the widow in the purchase money of the premises in question, due the estate of her deceased son, can not be reached in the foreclosure proceedings, upon the mortgages being declared void.
    [Opinion filed May 25, 1889.]
    Appeal from the Circuit Court of Peoria County; the Hon. T. W. Shaw, Judge, presiding.
    The appellant, who was complainant in the court below, filed his bill in the Circuit Court April 21,1886, against appellees, Patrick Harmon, guardian of William and Mary Boylon, minor heirs of William Boylon, deceased, and also against the said minors in person, and against Maria Boylon (formerly Webster), the widow of William Boylon, deceased, and Josiah Cratty, to foreclose two certain mortgages given by said Harmon, as guardian of said minors, and by said widow in her own right. The mortgages were the usual mortgages given to secure notes given for borrowed money. The first, dated February 26,18b0, was given to secure a note executed by said guardian for §2,000, payable to appellant, due in three years, with eight per cent, interest per annum, payable annually. The second mortgage, with like parties and given to secure the sum of §925, dated March 24, 1881, was due February 26, 1883, with same interest, payable annually. Each mortgage debt was secured by said mortgages respectively on a certain quarter section of land situate in said Peoria county, owned by said William Boylon at the time of his death. The parties at present interested in the subject-matter of this suit and at the time of the decree in the County Court, were the complainant, Matthew Kingman, and the respondent, Josiah Cratty, by virtue of a warranty deed to the mortgaged land' from William and Mary Boylon and said Maria Boylon, of date July 22, 1885, who claims to be the owner, and respondents, Mary Boylon (now Hays) and Maria Boylon (now Ryan) and William Boylon, who claim that said mortgages are void for the reasons set up in their various answers. Maria Boylon, alias Webster, alias Ryan, who executed the mortgage, was at the time interested in it, first as widow of William Boylon, deceased, and also as the owner of a one-sixth interest in the land in fee, as the heir of her son William Boylon, deceased, who died intestate and without issue in the year 1873, and subsequently to the death of his father, William Boylon, who died the latter part of December, 1866.
    The record shows that Maria Boylon, the widow, refused to qualify as executrix, and requested, in writing, the County Court to appoint Charles Boylon sole executor of the will of William Boylon, deceased, which was done, and he acted as such from January, 1867, to January, 1869. Patrick Boylon was appointed guardian of Charles, William and Mary Boylon in January, 1868, and qualified and acted as such guardian until August 3, 1871, when he resigned and Patrick Harmon was appointed guardian of said minors and acted as such until March 3, 1886. The following are the provisions of the will of William Boylon, deceased:
    “First. It is my will that all my just debts be paid. After paying my just debts, it is my will that, after reserving a sufficiency for my wife and children, the proceeds of the remainder of my personal property be placed at interest for the maintenance of my wife and children.
    “ Second. It is my will that all my real estate, consisting of the northeast J of section 38, township 11 north, range 8. east of the 4th principal meridian, also twenty acres of timber land in said township, be reserved for my children and be divided equally among them when the youngest attains the age of twenty-one (21) years, subject to my wife’s dower; and that the proceeds of said property, until that time, be placed at the disposal of the executors, to be used by them for the support of my wife and the support and education of my children; any surplus arising from the above to be used for the benefit of the heirs.”
    At the time of the decree in the court below the boy named William Boylon was deceased. The answers set up and question the right of Patrick Harmon, guardian, to mortgage the premises. 1st. That the will prohibited it. 2d. The money was not needed or used for the support and maintenance of the minors, but, on the contrary, was wasted in loaning it out to various persons, including John C. Tates, the county judge, and in buying real estate (lot in Peoria) and building a house on it, and in furnishing Maria Boylon large amounts of money to be used by her in the saloon and grocery business, and in payment of lawyer’s fees and court costs in needless litigation growing out of the mismanagement of the estate-—■ all of which appellant could have known if he had used due care—and various other charges and specifications showing there was no necessity of borrowing the money represented by the mortgages. Answer further avers that the application to borrow the money was not approved by the County Court and that the mortgages, especially the last one, was not approved by the County Court, but by Judge Tates personally.
    It appears that Mary Hays, William Boylon, by his conservator, Josiah Cratty,and Josiah Cratty, filed a cross-bill asking to have the mortgages removed as a cloud on the title.
    Upon a hearing in the Cirfeuit Court, the court found that the moneys loaned by the complainant, Kingman, to respondent, Patrick Harmon, guardian of Mary Boylon (now Hays), and William Boylon, who appears by conservator and guardian ad litem in this, case, were not, nor any part of said loans for which the two mortgages sought to be foreclosed under the original bill herein were given, a proper charge against the estate of said Mary Boylin or William Boylin aforesaid; and. the said mortgages are not valid as against the title of said Mary Boylon, now Hays, or William Boylon in and to said real estate, and the said bill as to them was dismissed for want of equity; and the court found that as to Boswell Bills and Josiah Cratty there was no equity, except as far as Cratty may have acquired title of defendant Maria Boylon, alias Webster, alias Byan, in said real estate.
    The court held the one-sixth interest of Maria Boylon subject to the mortgages and decreed foreclosure as to it, and he’d her personally liable for the last note which she personally signed; and as to the interest in said land acquired by Josiah Chatty from Mary Hays and William Boylon the mortgage was void.
    Messrs. William S. Kellogg and James A. Cameron, for appellant.
    It would appear that if the prior proceedings, under which leave to mortgage was obtained and the credit given, the money loaned and the mortgage executed, were in conformity with the statute, the court had jurisdiction and the mortgage itself could not be questioned on the ground that the court erred in the exercise of its legal discretion by entering the order for leave to the guardian to mortgage. The order to mortgage gave a vitality to the mortgage of which it could not be deprived.
    This position is in harmony with the decision of Reid v. Morton, 119 Ill. 130, which holds also that the power of authorizing a guardian to sell his ward’s real estate is not a judicial power but is a mere ministerial power, “ which might have been given to the selectmen of each town, or the clerks or registers of the counties, it being a mere ministerial act.” Yet the court say (119 Ill., p. 131):
    “ Irregularities and errors in the course of proceeding are insisted upon as invalidating the guardian’s sale. It is certainly the well settled general rule, that when a, court has jurisdiction of the subject-matter and of the parties to the litigation its judgments and decrees will be held valid when questioned collaterally. And this court has many times applied the rule in the very case of this special statutory and extraordinary proceeding of a guardian’s sale, which this is so much dwelt upon as being. Young v. Lorain, 11 Ill. 624; Mulford v. Stalzenback, 46 Ill. 303; Spring v. Kane, 86 Ill. 580.
    “ In Mulford v. Stalzenback it is said, in reference to such a sale, that it was sufficient for the purchaser to see there was an order of court for the sale of the land and made by a court having jurisdiction to make that order. The statute under which the proceeding was had, See. 10, Chap. 47 of Revised Statutes of 1845, empowered the court to order a sale of the real estate of the ward on application of the guardian by petition in writing, stating the facts, requiring publication of notice in a newspaper throe weeks before the sitting of the court. There was here such a petition and publication of notice. * * * This gave the court jurisdiction.”
    In the case at bar, the court had jurisdiction by the filing of the petition for leave to mortgage. It had from time to time approved of the several reports of the guardian, and such approvals were adjudications, so far as his accounts were concerned, upon which the appellant had a right to rely. If, after having loaned his money on the strength of these adjudications and the order of the County Court made in a matter where it had undoubted jurisdiction, appellant is to be dismissed from a court of chancery without any redress, the statutory provision of a guardian’s mortgage may well be considered a deception and a snare, to attempt to avail of which ought to be prohibited by penalties as severe as those imposed against the confidence game.
    Believing that he had a right to rely upon the exercise of the discretion with which the law had invested the County Court, of saying when and to what extent the necessities of the wards rendered it proper that an order be entered granting the guardian leave to mortgage their real estate; and believing, also, that money invested on the faith of that order will be protected in a court of equity, on being told by the decree of the court below that his security is worthless, and that the same should he canceled as a cloud on the title of the defendant, Josiah Cratty, who planned and encouraged and advised and devised the making and taking of the same, and individually received hundreds of dollars of the money so borrowed, the appellant prosecutes this appeal and respectfully asks that said decree be reversed.
    Messrs. Sheen & Lovett and M. C. Quinn, for appellees.

      “ It is a general rule of 'the common law that the expenses of the infant or the ward shall be kept within the income or the produce of his estate, although the court of chancery or other proper court has frequently, in cases of strong necessity, ordered a portion of the principal to be appropriated in that way; but in doing this they have always proceeded with great caution and have only done it in urgent cases. The inducements for guardians to invent for their wards artificial wants that they may reap an incidental benefit in the expenditure of their estate, has admonished the courts to guard with a jealous eye the estates of infants who are unable to protect themselves. Without this, the ward would too often become the victim of the guardian, and the most ample estate would, during a protracted minority, become dissipated more to his advantage than that of his ward. Courts of equity exercise a strict supervision over the expenditures of guardians, requiring the application of the income of the estate to the support and education of the ward; but they seldom sanction the use of the principal, even for these purposes, unless a very clear case of necessity is made out to the court so ordering. Much stricter still is the rule when a guardian breaks in upon the principal without first obtaining an order of a proper court for him to do so.” Davis v. Harkness, 1 Gilm. 173; Cummings v. Cummings, 15 Ill. 33; Bond v. Lockwood, 33 Ill. 212; Eyre v. Countess of Shaftsbury, Vol. 2, pt. 2, White & Tudor’s Equity Cases, p. 164.
    While the mortgages are approved by John C. Yates, county judge, they are not approved by the County Court, as they should be to be valid. Hughes et al. v. People, 111 Ill. 457; Field v. Herrick, 5 Ill. App. 54.

      The County Court is a court of record, but there is no record of the approval of the mortgages. The entry upon one of them, and about the other, is not a record, and being signed by John C. Yates as county judge, is not the act of the court. McIntyre v. People, 103 Ill. 148; McFarland v. McFarland, 4 Ill. App. 157.
    We concede that if a sufficient petition is filed, is acted upon by the court, and a decree in conformity with the petition is rendered, and a mortgage is made in conformity with the decree, the mortgage would be a mortgage, but without these prerequisites it would not; but if a mortgage is made by a guardian, when being foreclosed it must appear that complainant, who asks equity, is doing equity. Kingsbury v. Sperry, 119 Ill. 280.
   Lacey, P. J.

There are two questions presented to us for consideration in this case, one of law and one of fact.

The first is, can the heirs of William Boylon, deceased, who were minors at the time the mortgages were executed, be heard, in this proceeding to foreclose, in a collateral way, to dispute the validity of the mortgages in question, after having been executed by leave of the County Court? It is contended on the part of the complainant that neither they nor their grantee, Cratty, can dispute the validity of the mortgages for the supposed reason that the question is res adjudicata.

We are of opinion that this point of law is not well taken. On the contrary, we must hold that the approval of the County Court of the giving of the mortgages does not have the effect to make the mortgages absolutely valid and binding as against the heirs. We are also of the opinion that the heirs may question the right to execute the mortgages in this proceeding to foreclose, and are not estopped to do so. The approval of the loans by the judge under our statute was ministerial only, and in no way bound the heirs. The statute requires that the heirs be made parties to the proceeding to foreclose, and it is in that proceeding for the first time that they have an opportunity to contest the validity of the mortgage. Kingsbury v. Sperry, 119 Ill. 280, we think fully settles this principle. It is said in that case by the court that “The question is treated in argument as if an order giving leave to a guardian to mortgage, and an order or decree authorizing him to sell the land of his ward are essentially the same in principle. This is plainly a misapprehension. By the sale and confirmation the title of the ward passed absolutely to the purchaser. Before this can be effected the court is required to hear evidence as to the existence of certain facts (see R. S. 1874, Secs. 28, 29, 30, et seq., Chap. 64). We have seen in the case of mortgaging no title passes until the decree of foreclosure, sale and confirmation thereafter. Ho fact is to be adjudicated before making the order. The power is given to the guardian simply, by leave of the court, to perform the ministerial act of borrowing money and executing mortgage. It might have been vested in the guardian absolutely, without consulting the court, or might have been vested in some other individual. Cooley on Con. Lim., 98, 99, et seq. judicial power is only invoked when a foreclosure is sought, and then we have seen the ward has all the rights that he claims that he now has the right to assert.” Thus it will be seen that the heir has a right to test the validity of the mortgage when it is sought to be foreclosed. See Kircher v. Beecher, 41 Ill. 179.

We will not go over and recite the evidence concerning the administration of this estate by the guardian, as it would consume much unnecessary time, but will content ourselves in stating generally our conclusions. The mortgaged property was worth about $8,000, and was farm land worth from $400 to $600 per year rental, and there came to the hands of Harmon the sum of $2,850 from the former guardian, and this could have been readily loaned for eight per cent, interest per annum. Inside the nine years all this money was spent, and all the income also spent, and the property mortgaged inside of two years- for nearly $3,000. The guardian allowed the county judge and Mrs. Boylon to spend the money as they pleased. Ho order was ever asked for from the County Court to make expenditures for the wards, but the guardian proceeded to use the money promiscuously for the widow for any purpose she desired. He built a house costing over §1,300 with the money, which the widow occupied, and also furnished large supplies to Mrs. Boylon to carry on business. Ho account was kept with Mrs. Boylon and the wards separately. The purpose of borrowing the money was illegitimate and fraudulent. We have no doubt that the guardian, if he had acted with prudence, could have • supplied the wards with all the assistance necessary, as also Mrs.Boylon, in accordance with the provisions of the will, out of the income, without at all, or at least very slightly, trenching on the estate.

The action of the guardian was reckless in the extreme, and appellant, if he had examined appellee’s (Harmon’s) official reports to the County Court, would have discovered it. He had no right to borrow money to invest with the widow, and to pay her debts to lawyers and others, as was done, or to invest in real estate. The guardian, in 1874 and 1875, built a house on a lot, the title of which was in his own name, which he held for the heirs and widow. All this was done without any authority of law, and was not sold till long after this money was borrowed, between April and July 1, 1885. This money should have been used before a resort to borrowing was had. It was illegal to borrow money to pay for supplies for Mrs. Boylon’s saloon and boarding house, and an order should have been obtained from the County Court authorizing disbursements before the money was borrowed. Nothing of the bind was done. Bond v. Lockwood, 33 Ill. 212. The §2,000 was used in paying Cratty’s attorney’s fee of §400, and for his own debt for supplies furnished Mrs. Boylon, §525, and other like things.

The position assumed by appellant’s counsel, that Cratty is estopped from denying the validity of the mortgage because-he prepared the petition to the County Court, to procure leave to mortgage, and advised appellant that the guardian had a right to execute the mortgage, is not well taken.

Cratty was not, at the time, the attorney of appellant, and there is no evidence that he had any fraudulent intent to mislead the appellant. In addition, he was not, at the time, the owner of the land. If any estoppel existed as to Cratty, it must have become operative at the time, otherwise, if he did any wrong by the advice given, he would have been simply liable in an action on the case for deceit, and he, by such advice, could not affect the title of the minors. As far as Crattv’s action was concerned, the title of the minors was unclouded, and to allow it to become clouded upon a sale to Cratty would, in substance, deprive them of the right to sell to him, or embarrass the sale, which would be an injury to them, who were blameless. This the law would not allow. If the advice of Cratty amounted to anything, it was simply a liability to appellant and could have no place in this investigation. Again, the amount of appellant’s mortgages are held in trust by Cratty for the interest of Mary Hays and the administrator of William Boylon, deceased, the other minor, and if he is estopped Cratty would not be the one to suffer.

It is also insisted that whatever money the widow will inherit of the money coming to William Boylon, deceased, in case the mortgages are defeated, should be allowed appellant. This position is not tenable. The interest of William in the purchase money due from Cratty goes to his administrator and not to his heirs, it being personal.

The widow’s liability on the note she signed, and her warranty contained in the mortgages, if any, can not be satisfied by attaching her claim as heir against the administrator of her son William, deceased. Her personal liability on her covenants in no way creates a lien in appellant’s favor in her interest as heir of her son’s personal estate. It is not attachable in this proceeding. We hold that, under the evidence, the conveyance from William to Cratty of his interest in the land was valid, and no proof shows that he was not competent to execute the deed.

The appellees make the point, in addition to the ones noticed above, that in accordance with the provisions of the will of William Boylon, deceased, the guardian could not mortgage the land, as the land was not to come into possession of the heirs until they were twenty-one years of age. But from what we have above, said it will appear that it is not necessary to pass upon that point.

Seeing no error in the record, the decree of the court below is affirmed.

Decree affirmed.

C. B. Smith, J.

I do not concur in the judgment of the majority of the court in this case. I hold that the proceedings in the County Court were had in strict conformity with the statute authorizing the guardian to borrow the money for the use of his wards, and the approval of the court of the loan before it was made is a full and complete protection to King-man, who parted with his money on the strength of the order of the court and the advice of Cratty, who procured the order for Harmon through the County Court. The record in this case shows that Harmon, the guardian, complied strictly and in every respect with the requirement of the statute. The statute confers power on guardians to' incumber the lands of their wards by mortgages (Secs. 24 and 25, Chap. 64, p. 1244. Starr & C., Ill. Stat), but that before such guardian can borrow money and mortgage the land of his wards the guardian shall first petition the County Court for an order authorizing such mortgage to be made. This was done, upon a sufficient petition, and the application was.heard by the County Court, and after a full hearing the court made its order authorizing the guardian to make this loan. The court found all the facts necessary to be found to justify the judgment and the order of the court. The court had jurisdiction of the person and the subject-matter.

I am, therefore, of opinion that Kingman had a right to place implicit confidence in this record made by the County Court. He was under no obligations to determine for himself whether the loan was necessary to be made for the benefit of the wards. Nor was he bound to see to the application of the money by the guardian or County Court. He had no power or control over it. There is no proof in the record that he knew of any misconduct or misappropriation of the wards’ money by the guardian, or of any conspiracy between the County Court and Harmon to waste the estate of these children. It may be conceded, and is undoubtedly true, that these wards were most grievously robbed and plundered of their estate by the guardian, the county judge and their mother; but appellant had no knowledge nor any part in this waste and misappropriation of the children’s estate. He is an innocent party. So long as the statute allows guardians to mortgage the estate of their wards there must be some authority to determine when the necessity arises for such incumbrance ; but if minors are not bound by the action of such forum, and may come in twenty years, or any other time, after such mortgage is executed, after their necessities and infancy and witnesses have all disappeared, and defeat the mortgage by show ing misconduct of the guardian, ignorance, or dishonesty, or both, of the court, and general waste of their estate by the guardian, and thus defeat the just claim of an honest mortgagee who loaned his money in good faith to the guardian on the strength of the order of the court, then, indeed, few men will be found who will advance their money on any such security. The judgment bound the minors or wards in this case. Mulford v. Stalzenback, 46 Ill. 303; Spring v. Kane, 86 Ill. 580.

I hold, also, that Cratty’s conduct in this whole transaction, from beginning to end, estops him from denying the validity of these mortgages. The proof shows that it was through his advice and active affirmative agency and conduct that Kingman was induced to make this loan. Kingman was assured by him that the order authorizing the loan was valid and legal and that it was a good and safe loan. Through this advice Kingman loaned his money for the use and benefit of those wards, and yet Cratty, well knowing what the' money was loaned for, receives $450 of the money for fees for legal services, which were not rendered for these children. He knew he had no right to that money out of that fund, and that the guardian had no right to pay it to him, nor to any other person for his use. After thus inducing Kingman to Joan his money on the strength of what ne then said was a legal order, and after himself receiving a large sum of the money, he now assumes a different attitude directly inconsistent with his former position. He has himself become a purchaser of the mortgaged premises, and without having paid the grantors for the same the amount represented by the mortgages, he now is insisting that the order of the court is not valid, and that it affords .Kingman no protection. His position now is hostile and directly antagonistic to the one he occupied when he advised Kingman the order of the court was valid and the loan a safe one. He now insists that he shall be permitted to further profit by this transaction in the sum of §3,000 and hold the land discharged of the mortgages.

I hold that under the plainest rules of equity and fair dealing he ought to be estopped from assuming a different attitude from that he occupied when he induced Kingman to part with his money.

For the reasons above, very briefly given, I hoM that the decree of the Circuit Court is erroneous and unjust in the extreme and ought to be reversed.


author: Lacey, P. J.

text:
    Willis S. Hubbard, Administrator, v. Guy Stapp, Receiver, etc.

      Life insurance—Assignment of Policy—Specific Performance—Vested Interest—Embezzled Funds—Lien.

    1. A person named as the beneficiary in a life insurance policy obtains a vested interest therein, which can not be affected by any subsequent act of the assured.
    2. A life insurance policy can not be assigned without the consent of the company.
    S. Whore the assured has paid the premiums on a policy in favor of a third person with funds embezzled from another, such payments are a lien on the policy; and if the one from whom such funds have been embezzled pays subsequent premiums, the same, with interest, also constitute a lien on the policy.
    4. The decree can not find more than is charged in the bill.
    5. In the absence of a bill of exceptions and certificate of evidence, the only question is whether the findings of the court below are sufficient to sustain the decree.
    [Opinion filed June 4, 1889.]

      In error to the Circuit Court of Warren County; the Hon. John J. Glenn, Judge, presiding.
    What we presume may be regarded as the material allegations of the bill in this case are, that on the 9th day of April, 1884, B. T. O. Hubbard was the owner and in the possession of five several policies of insurance: three in a New England company, numbered 62,034, 65,584, 66,426, and dated respectively, July 21, 1879, July 30, 1881, and December 31, 1881; one in a New York and one in a New Jersey company. That number 65,584 was made payable to Hubbard at the end of fifteen years, or in the case of his death before that date, then to his executors and administrators for the use and benefit of his wife, Fannie P., and of his son, Willis S. Hubbard, if they should survive him; that number 66,426 was made payable to him at the end of twenty years, or in case of his death before that date, then to his executors or administrators for the benefit of his said wife and son, if they should survive him ;' that Hubbard was, on said 9th day of April, found to be largely indebted to the bank for money embezzled ; that to reimburse the bank in part for the money taken, he agreed to assign the several policies of insurance to the bank, and in pursuance of such agreement left the policies in possession of the bank ; that he afterward refused to assign according to his agreement, but made a pretended transfer of the same to defendants Fannie P. and Willis S. Hubbard; and charges that a large amount of the premiums paid by B. T. O. Hubbard on the policies were paid in the money and funds of the bank embezzled by him ; that none of the premiums were paid by Fannie P. or Willis S. Hubbard, but were paid by said B. T. O. Hubbard, either out of his own funds or out of the funds of the bank, and the bill prays the specific performance of the agreement.
    The bill was filed April 24,1885, and at the appearance term a demurrer by all the defendants was filed to the bill, which was afterwards overruled (see record, pages seven and eight); and defendants thereupon answered, thereby, as is claimed, waiving all technical objections to the bill and admitting its substantial equities.

      The answer of the defendants, Fannie P. and Willis S. Hubbard, was joint, and denies most of the material allegations of the bill. Admits that B. T. O. Hubbard was, at the time alleged, the owner of policy number 62,034 and of the New Jersey policy, but denies that he was the owner of policies number 65,584 and 66,426 and the New York policy, and avers that they were the owners of these policies, and, avers also, that B. T. O. Hubbard had no right or authority to sell, assign or transfer any of the last named policies “ without the consent of these defendants.”
    A replication was filed to the answer, upon which there was a hearing and decree in favor of the complainants below for the three first named policies, numbered 62,034, 65,584, and 66,426. The other two policies, as stated by counsel for plaintiffs in error, were delivered up and are not in dispute. Nor do we understand that any claim is made on account of the first named policy, numbered 62,034, the answer having conceded that that policy was the property of B. T. O. Hubbard when the contract of assignment was made, and the argument of plaintiffs making no claim thereto. The controversy, then, only relates to the remaining two policies numbered 65,584, dated July 30, 1881, and 66,426, dated December 31, 1881. The contention is that these policies having been made payable to the use and benefit of his wife and' son, if ho should die within the times limited in the policies and they should survive him, they had a vested interest in the policies such as would prevent their transfer without their consent.
    There is no bill of exceptions nor certificate of evidence.
    The only question, then, properly arising here is, are the findings of the court below, as stated in the decree, sufficient to sustain the decree ?
    The decree finds every material fact as stated in the bill. That Hubbard was, on the 9th day of April, 1884, indebted to the bank as set forth in the bill, and was at that time the owner and possessed of the insurance policies described; that in consideration of his indebtedness he agreed to assign them to the bank for its own use and benefit; that in pursuance of such agreement the policies were delivered to the bank, in whose possession and in that of its receiver they remained from that time; that none of the premiums were paid by plaintiffs in error, but were all paid by B. T. O. Hubbard out of the funds of the bank embezzled by B. T. O. Hubbard, and that the pretended assignment of the policies to plaintiffs in error was with notice of and in fraud of the rights of the bank, and that complainant below was duly appointed receiver of the bank.
    Upon these findings the decree was based.
    Messrs. Porter & Macdill, for plaintiffs in error.
    Messrs. Kirkpatrick & Alexander and R. J. Grier, for defendant in error.
   Lacey, P. J.

Various questions are raised in this case by appellant, who cites, in support of his claim that the interest of the wife and son of B. T. O. Hubbard could not be transferred to the bank in the manner claimed, the following cases: The Central Bank of Washington City, etc., v. Hume, U. S. Supreme Court, by Chief Justice Fuller, filed November 1, 1888 (128 U. S.). Also, Glanz v. Gloeckler, 104 Ill. 573; S. C., 10 Ill. App. 484. Other cases may be found bearing on the same point, as Johnson v. Van Epps, 110 Ill. 551; S. C., 14 Ill. App. 201.

The case above cited from the Hnited States Supreme Court, and also of Glanz v. Gloeckler, both hold that where an insurance policy is taken by the assured on his own life, payable at his death to a third party, such party attains a vested interest in the policy.

And in Gould v. Emmerson, 99 Mass. 154, it will be seen that it makes no difference whether the policy is made directly payable to the beneficiary or not.

In Bliss on Life Ins., 2d Ed., p. 517, it is laid down as a rule as follows: “We apprehend the general rule to be that a policy, and the money to become due under it, belongs, the moment it is issued, to the person or persons -named in it as the beneficiaries; and that there is no power in the person procuring the insurance, by any act of his, by deed or will, to transfer to any other person the interest of the person named. An irrevocable trust is created.”

It may be contended that the authority of the above was misleading in making such statement by the examination of cases from such States where the statutes regulated the matter, and that the rule is not applicable to States where there is no statute law on the subject. In view of the decisions in Otis v. Beckwith, 49 Ill. 121, and Glanz v. Gloeckler, 104 Ill. 573, we can not believe that such claim can be set up in this State, either where the policy is made payable directly to the beneficiary or to the assured’s administrator for his use. We can see but little distinction, and believe the author has stated the law correctly. We will notice the question further on.

The policies in question were made payable to himself at the end of fifteen years and twenty years, respectively; in case of his death before those dates, to his executors and administrators, for the use and benefit of his wife, Fannie P. Hubbard, and bis son, Willis S. Hubbard, if they should survive him.

This was equivalent to a policy for the benefit of his wife and son, running fifteen and twenty years, respectively, in case of death within that time, and this limitation or contingency, as we conceive, can make no difference in the right to insure for the benefit of his wife and son. The policy was never changed by the insurance company to an absolute policy payable to Hubbard’s administrators, but Hubbard agreed to transfer the policy absolutely for the benefit of the bank; and in that way the bank took it and got the agreement for the assignment. This could not be done except by the consent of the insurance company, if at all. The original contracts of insurance have never been changed. Johnson v. Van Epps, 14 Ill. App. 201. In Glanz v. Gloeckler, 104 Ill. 573, where the insurance in case of death was payable to the wife, it was held an interest vested in her that could not be changed exefept by her consent.

In Otis v. Beckwith, 49 Ill. 121, where the insured never parted with the possession of the policy of insurance, but on a separate paper assigned it for the benefit of his three sons to a trustee, and the same was aecipted bv such trustee, it was held to be an irrevocable trust in favor of his sons. And it does not matter whether the cestui que trust occupies the position of volunteer or not. Badgley v. Votrain, 68 Ill. 25.

It is insisted that the bill charges and decree finds that the insured, Hubbard, was the owner at the time of this assignment of the policies in question.. It is true he had an interest in the policies contingent on his living fifteen and twenty years, and this, taking all the allegations of the bill together, must be regarded as the real charge in the bill, i. e., a special ownership, and the decree can find no more than charged in the bill. Especially is this so when it is nowhere charged that the insurance policies, set out in full in the bill with all their conditions, were assigned to the bank by consent of the wife and son: Where there is any ambiguity, the allegations of the bill must be taken more strongly against the pleader. The appellee insists that the bill charges and the decree finds that the premiums were paid by Hubbard out of money he embezzled from the bank, and hence, in equity, the bank is entitled to the benefit of the policies. It will be observed, however, in answer to this suggestion, that the bill does not proceed on this theory, or claim that they are entitled to the assignment of the policies on that ground, but upon an express contract with Hubbard to assign the policies in consideration-of a large indebtedness due from Hubbard to the bank. Again, the bill does not charge that all the premiums were paid for out of moneys of the bank, but it says a la/rge portion was so paid, or that Hubbard paid them out of his own funds, and the decree can not be broader than the charge. It is evident that this point was not relied on in the couit below. And even if so, we can not concede that such fact, if a fact, would have the effect of giving appellee the right to the entire policies. The bank, however, if its money paid the premiums, would be entitled equitably to be reimbursed to such an amount and interest out of the proceeds of the policy. And if upon a retrial the evidence should show that such was the fact, it should be allowed such premiums and interest thereon out of the insurance money, together with the premiums, if any, since paid by it, with interest, as that would inure to appellee’s benefit, since Hubbard has died within fifteen years.

We are of the opinion that the decree is erroneous, in that it orders the entire interest of Mrs. Hubbard and her son to be transferred to the bank by the assignment. The decree should only have ordered the interest of Hubbard, according to the terms of the policies, to be so transferred, which was contingent on the duration of his life for fifteen and twenty years. Now that he died within a period of fifteen years, his interest expires. For this error in the decree the decree is reversed and the cause remanded, with leave to amend pleadings and to take new evidence, if thought advisable. If the evidence shows that the money of the bank paid the first premiums on said policies claimed by appellant, then the court should allow such amount, with interest, to the bank, with like amounts since paid for premiums, if any, with interest, and the balance of the insurance money, if paid in to appellant for the use specified in the policy.

If the insurance money has not been paid, the decree should declare a lien on the policies for the amounts, if any, above indicated, and the assignment, or agreement to assign, to convey such interest only.

Decree reversed and cause remanded with directions.


author: Lacey, J.

text:
    Henry G. Ehle v. Fred Deitz.

      Replevin—Exemptions—Demand—Notice—Schedule—Failure to File— Former Adjudication— Consolidation of Causes—Appraisal.

    1. Property in the lawful possession of another under a distress warrant should not be replevied without previous demand.
    2. The owner can not, under the statute concerning exemptions, become entitled to the possession of property held under a distress warrant, without first making out and delivering the required schedule.

      3. It is proper in an action of replevin brought to recover property dis-trained, to submit to the jury, upon the request of the plaintiff, the question whether a reasonable time was given for the appointment of appraisers to value the same, after delivery of the schedule and before the institution of the suit.

      4. An appraisal in an action of this character must show that the persons making the same were legally appointed.
    5. It seems that the present suit is not barred by the former one, and that the statute in regard to consolidation of causes of action has no application.
    [Opinion filed June 11, 1889.]
    Appeal from the Circuit Court of McHenry County; the Hon. Charles Kellum, Judge, presiding.
    Messrs. Barnes & Smiley, for appellant.

      "Where an officer holding proper legal process takes goods from the possession of the defendant named in his writ, he is but doing his duty and his possession is lawful, so that replevin can not be maintained against him without demand.” Wells on Replevin, Section 368, and cases there cited; also, Tuttle v. Robinson, 78 Ill. 332; Holladay v. Bartholomae, 11 Ill. App. 206.
    “ To sustain the action of replevin for wrongfully taking and detaining a personal chattel, it is necessary to.show that the defendant wrongfully took it from the actual or constructive possession of the plaintiff. This is elementary law.” Simmons v. Jenkins, Adm., 76 Ill. 479; Johnson v. Prussing, 4 Ill. App. 575; Holladay v. Bartholomae, 11 Ill. App. 206; Ingalls v. Bulkley, 13 Ill. 315; Woodward v. Woodward, 14 Ill. 466.
    “ We understand the law to be well settled, that where a party obtains the possession of property lawfully, an action of replevin can not be maintained to recover it until a demand has been made and the possession refused.” O. & M. Ry. Co. v. Noe, 77 Ill. 513; Clark v. Lewis, 35 Ill. 417.
    “ A debtor must make and present a schedule whether he has more or less property than is exempt, and if he leaves out any property he can not present a second schedule and include the property omitted from the first.” Blair v. Parker, 4 Ill. App. 409; Biggs v. McKenzie, 16 Ill. App. 286.
    “ If a debtor wishes to avail himself of the benefit of the exemption law, he must present the officers with a schedule of all of his personal property, of every kind and character, including money on hand and debts due and owing to him.” Sec. 14, Chap. 52, R. S., Exemptions; Blair v. Parker, 4 Ill. App. 409; Menzie v. Kelley, 8 Ill. App. 259; Biggs v. McKenzie, 16 Ill. App. 286; Cook et al. v. Bohl, 8 Ill. App. 293; Griffin v. Maxwell, 23 Ill. App. 405.
    “ There must be a strict compliance with the provisions of the statute before a party can claim the benefit of the exemption law.” McMasters v. Alsop, 85 Ill. 157; Amend v. Smith, 87 Ill. 198; Griffin v. Maxwell, 23 Ill. App. 405, and cases there cited.
    The first replevin suit is a complete bar to the second, as it was the duty of the plaintiff to' avoid a multiplicity of suits, and include all the property in the first suit, as the same would still have been within the jurisdiction of a justice. Sec 49, Chap. 79, R. S; Mallock v. Krome, 78 Ill. 110; Nickerson v. Rockwell, 90 Ill. 460; Dulaney v. Payne et al., 101 Ill. 325; Lathrop v. Hayes, 57 Ill. 279; McKinney v. Finch, 1 Scam. 152; Lucas v. LeCompte, 42 Ill. 303; Casselberry v. Forquer, 27 Ill. 170; Camp v. Morgan, 21 Ill. 258.
    Mr. J. F. Casey, for appellee.
    “Under the provisions of the act entitled ‘An act to exempt certain articles from execution,’ in force March 4, 1843, as a general rule it is the duty of an officer having an excution in his hands, before he proceeds to take or seize any of the personal property of the defendant in such execution by a levy thereon, to notify such defendant of his having such execution in his hands, if practicable, and thereupon it is the right of such defendant to select such property as he desires to retain under the act aforesaid, surrendering to the officer all his other property not thus selected or specifically exempt, for the satisfaction of such execution.” Cook v. Scott, 1 Gilm. 333; Blair v. Parker, 4 Ill. App. 409.

      “Where the law exempts property, to be selected by the execution debtor, the general rule is that the officer should give the debtor notice, if practicable, and thus afford him an opportunity before levy or sale to make the selection and claim the exemption. If the debtor is absent from the county, it is not practicable, within the meaning of the rule, for the officer to give such actual notice.” Foote v. The People, 12 Ill. App. 94.
    “The law sets apart certain specified property and wholly exempts it from execution or attachment.” Cooley on Torts, 395, 396.
    “A statute exempting property from levy and sale is not to be construed strictly, but so as to carry out the obvious intentions of the legislature.” Washburn v. Goodheart, 88 Ill. 229; Good v. Fogg, 61 Ill. 449.
   Lacey, J.

The appellee was the owner of certain personal property and was the head of a family, residing with the same, and was indebted to George Bardwell, his landlord, for certain rent due him.

Bardwell placed in the hands of appellant a landlord’s warrant against appellee, ordering the said bailiff to make of the goods and chattels of appellee a certain sum of money claimed for rent. Thereupon appellant levied upon certain goods and chattels of appellee, without first giving him notice of the fact that he had the warrant to execute. On the 16th of November, 1887, theappellee commenced his replevin suit against appellant, before a justice, to recover certain of the property held under the warrant. On the same day the appellee handed appellant his certain schedule made "out, as"is insisted according to the provisions of section two of the act concerning the exemption of personal property, Session Laws, 1887, p. 179, but whether or not it was handed to appellant before or after the replevy is not entirely certain, but the weight of the evidence seems to be that it was not so delivered till after the goods were replevied, and that no demand was made of appellant for the property prior to the time the suit was brought.

The appellant then proceeded to judgment on the distress warrant, and after obtaining a judgment in favor of Bardwell for the rent due him, the justice before whom the judgment was obtained issued a special execution, which was placed in appellant’s hands, ordering him to make sale of the balance of the property not replevied, remaining in his hands, to satisfy the judgment.

On November 4, 1886, the appellee made out and delivered to the sheriff a new schedule as provided by statute, containing the same property as the first one, and also some additional articles omitted from the first. The appellant did not act under said last schedule or either of them as to the appraisal of the property remaining in his hands, or as to any of it, but received the special execution into his hands of date of November 20, 1886. Thereupon, on the 30th day of November, 1886, the second replevin suit was commenced by appellee before a justice, and the balance of the property replevied. After the trial of the causes before the justice they were appealed to the Circuit Court, and there, being consolidated by agreement, were tried, resulting in a verdict for appellee, and judgment on the verdict by the court and appeal to this court.

Various questions are raised and urged on our attention as cause of reversal.

1. It is urged that the evidence failed to show demand for the property by appellee before suit brought.

2. The first replevin suit was commenced before schedule was delivered to appellant.

3. The schedule did not contain a list of all appellee’s property.

4. The first replevin suit was a bar to the second one.

5. The instructions for appellee were erroneous.

6. The court erred in refusing appellant’s instructions.

1. It was error because the court admitted in evidence the two appraisement lists made out by James Duffield, Ira Slocum and Judd.

8. Because the court erred in not setting aside the verdict and granting appellant a new trial.

There were also some minor objections not necessary to notice.

The instructions of appellant, which were refused, are as follows:

“ The jury are further instructed, as a matter of law, that even though the jury may, and do believe, from the evidence, that the property mentioned in said schedule was worth less than §400, still, unless the plaintiff has shown by a preponderance of the evidence that he made a demand on the defendant, Ehle, for the property in controversy before he commenced the replevin suits, you should find a verdict for the defendant; Ehle, if the jury believe the property had been levied on by Ehle on the loth day of October, and that Deitz knew of such levy the day it was made.”
“The court instructs the jury, as a matter of law, that even though the jury may and do believe from the evidence that the property mentioned in the schedule that was presented to the defendant, Ehle, was worth less than §400, still, unless the pla'ntiff, Fred Deitz, has shown by a preponderance of the evidence that he presented the schedule to Ehle before lie coznmenced the replevin suit before J. H. Johnson, you shozzld find a verdict for the defendant, Ehle, as to the property in said replevin suit.”

We are of the opinion that the above instructions should have been given. The possession of the property under the distress warrant in the first instance under the statute was lawful, and before the appellant could be put to costs by the commencement of a suit for the wrongful detention of the property, a demand shozild have been made in order to enable him to give up the property, even if otherwise the appellees wez-e entitled to the possession of the property.

Before, in any event, the appellee could have become entitled to the possession of the property under the provisions of the statute concerting exemptions of personal property above referred to, he should have delivered a schedule to the appellant. Without such schedule, and with neglect and refusal to make out one and deliver it, the right to claizn his exeznptions would be forfeited. Therefore the second of the above instructions should have been given. Griffin v. Maxwell, 23 Ill. App. 405.

As to the property described in the first replevin suit there seems to be slight evidence that the appellant had any time given him, or a reasonable time, to appoint appraisers to value it after appellee delivered his schedule, if he delivered one at all, before he instituted his suit. Tet we can not say it was error to submit that question to the jury at the request of the appellee, as there was some evidence on the subject. We think the court committed no error in giving the instructions in regard to the effect of the omission by appellee of certain property from his schedules.

It appears that the court admitted two lists of appraisals of appellee’s property, made by Duffield, Slocum and Judd, against the objection of appellant. This was error. It does not appear by whom these self-constituted appraisers were appointed, except that appellant did not appoint them under the statute. Such appraisals were not evidence of anything. Two of said appraisers were sworn, but failed to testify as to the value of the property set forth in the appraisement, only saying that the list contained the value of the property according to the appraisement. There was no other evidence as to the value of the property.

We are not prepared to say, under the evidence, that the first replevin suit was a bar to the subsequent one, or that the statute in regard to consolidation of causes of action applies to this class of cases.

The judgment of the court below is reversed and the cause is remanded.

Reversed and remanded.


text:
    Eugene Patneaud v. Hyppolite Claire.

      Seal Property—Drainage—Natural Course and Outlet—Obstruction of —Basement.

    1. Where the natural course and outlet for water on the land of one owner is over the land of another, such course can not be obstructed.
    2. A purchaser of land knowing that such a ditch runs across it from the land of another, can not lawfully close the same.
    [Opinion filed July 1, 1889.]
    Appeal from the Circuit Court of Iroquois County; the Hon. C. F. Reeves, Judge, presiding.
    Messrs. Kay & Euans, and Doyle, Morris & Pierson, for appellant.
    Patneaud had a right to fill up that drain; it was a valuable right, a right vested in him by law; he had never consented to the making or repair of that drain in any way, as recognizing the right of any one to keep it open. It would not be competent for the legislature to divest him of that vested right without his consent, or by due process of law. Bruce v. Schuyler, 4 Gilm. 224; Deininger v. McConnell, 41 Ill. 227; Allwood v. Mansfield, 81 Ill. 314; Mix v. Vail, 86 Ill. 40; Dobbins v. First Nat’l Bank of Peoria, 112 Ill. 553.
    There is no evidence in this record upon which to base an instruction upon the question of easement. An easement always has its origin in unity of seizin, and then it must exist with a knowledge of the one holding the title. Morrison v. King, 62 Ill. 30; Ingalls v. Plamondon, 75 Ill. 118; Cihak v. Klekr, 117 Ill. 643.
    The Illinois Central Railroad never consented to the making of these drains, nor had knowledge they were made.
    Messrs. Harris & Hooper, for appellee.

      The ditch was a continuous and apparent easement necessary or convenient to enjoyment of estate and upon severance of the heritage by the railroad company, passed by implication with the dominant estate. Washburn on Real Estate, Vol. 2, page 36 to 38, edition 1862; Morrison v. King, 62 Ill. 34; Ingalls v. Plamondon, 75 Ill. 118; Cihak v. Klekr, 117 Ill. 652.
   C. B. Smith, J.

This suit was commenced before a justice of the peace and upon a trial there the plaintiff had judgment for $82.50 and upon appeal to the Circuit Court another trial was had before a jury resulting in a verdict for the plaintiff for $18. The court overruled a motion for a new trial and rendered judgment on the verdict. The defendant now prosecutes his further appeal to this court and assigns various errors and asks for a reversal of the judgment.

The facts as disclosed by the evidence in this record are substantially these: Appellant and appellee are adjacent land owners. Appellant, Patneaud, owns the west half of the northeast quarter section 6, T. 27, R. 13 W. Appellee, Claire, owns the east half of the northwest quarter of the same section. Patneaud again owns the north half of the west half of the northwest quarter of section six and which lies immediately west and adjoining Claire’s eighty-acre lot. It appears that all these lands formerly belonged to the I. C. R. R. Co., and that in 1860 oneWaters purchased the eighty now owned by Claire and that one Tomlins then purchased the forty-acre tract which is now owned by Patneaud and which lies west of Claire’s land. While these two men were in possession of the land under the contract of purchase they mutually agreed to and did make a ditch, running across both the eighty and the forty-acre lot, running and carrying the water westward across the forty acres now owned by appellant. This ditch was made about the year 1860, and was kept open by the joint labor of both of them for a number of years. Both of them, however, finally failed to pay the railroad company for the land and it reverted back to the company and their contracts of purchase were canceled. The land was again sold and after a number of conveyances, finally came into the hands of appellant and appellee as above stated, with the ditch on it. The ditch was kept open for several years and carried the water off plaintiff’s land over defendant’s land as it had always done, both defendant and plaintiff helping to keep it open, until about six or seven years ago appellant asserted a distinct and separate ownership of the ditch, denying any right of appellee to it, and finally he determined to tile his land, and desired to and did put tile in the bottom of the old ditch, following the ditch to its outlet on the west line of his land. After putting in his tile he filled up the ditch to the original level of the ground and in addition to filling up the ditch, he made a dam across the ditch, just west of the division line between his forty and plaintiff’s eighty. This dam was about three and one-half inches above the common level of the ground and was about twenty feet wide. In addition to building this dam appellant also built a hedge fence on the line between himself and appellee without leaving any opening for the water to pass through as it was accustomed always to do. The proof from both sides is, that all the land in that vicinity is very level and the fall very slight. It also appears very clearly that the natural outlet for the water on plaintiff’s land was westward over appellant’s forty acres and that its natural outlet before and since the ditch was dug, was along the line of the ditch. All parties recognized this fact by placing the ditch there, and appellant admits it by placing his tile in that bottom of the ditch, and by making his dam there, to prevent the fiowage of plaintiff’s water upon his land. The proof is also abundant that this three and one-half inch dam caused the water to flow back and cover something like twenty to thirty acres of plaintiff’s land. Appellant admits putting the dam there, but says when he ascertained that a claim was made that it was above the level of the surface he took it down about three inches to the level of the ground.

Counsel for appellant has discussed many legal questions concerning easements, rights by prescription and dedication, and how they may arise and be gained or lost, but in the view we take of the case, it becomes a very simple matter, and it is wholly' unnecessary for us to consider the various questions made which are not necessary to a correct decision, as we think the judgment is clearly right under the admitted facts in the case.

As we have said, the proof is clear that the natural course and outlet for the water on plaintiff’s land, was over the defendant’s land, along the line where the ditch was dug, and without any reference to the ditch, the plaintiff had the clear legal right to have the surface and other water naturally falling on his land, pass over the land of appellant in its natural course without obstruction by dams or fences. The law upon this question has been so long and so well settled everywhere that it is a mere waste of time to discuss it further. Peck v. Harrington, 109 Ill. 611.

Under the great preponderance of the evidence in the case the jury could not have found correctly a different verdict. The verdict is small and was, we think, fully justified by the evidence. The second instruction given for the plaintiff recognizes and declares the law to the jury as we have above stated it, with entire accuracy. A great many instructions were given in the case and a number also refused. We have carefully examined all of them and without stopping to discuss them in much detail we shall content ourselves by saying we think the jury was fairly and correctly instructed. The law was given to the jury for appellant quite as favorably as he had any right to ask.

The first instruction in substance informed the jury that if Patneaud bought his land with this ditch then upon it, running from plaintiff’s land across his own, and that he knew of its existence, then he took his land with this burden upon it, and that he had no right to afterward stop it up. This instruction we think announces a correct rule of law. An easement existed over the servient heritage in favor of the dominant one to have the water flow through the ditch, as it had been accustomed to do before appellant bought his land. Ingalls v. Plamondon, 75 Ill. 118; Morrison v. King, 62 Ill. 34; Cihak v. Klekr, 117 Ill. 652.

The instruction given by plaintiff relating to proof of a prescriptive right was not erroneous, though it may not have been fully supported by the proof, but it could do defendant no harm, since instructions given on his own behalf fully and clearly explained the law to the jury so that they could not be misled. If error at all, it was harmless. The evidence clearly supported the verdict.

Seeing no error in the record the judgment is affirmed.

Judgment affirmed.