author: Mr. Chief Justice Mulket

text:
    Nicholas Heinsen v. Augustus D. Lamb.

      Filed at Ottawa May 15, 1886.

    1. Amendment of bill of exceptions—d/aring and after the term. Where a bill of exceptions is signed and sealed, and properly filed, it becomes a part of the record of the court to which it relates, and it stands upon the same footing as any other repord. During the term at which it is signed and filed, it may be amended at any time, without notice. But after the term expires, the judge loses all power to alter or change it on his own motion or suggestion. In case of an amendment during the .term, the proper practice is to call the attention of counsel to the fact.
    , 2. Where a bill of exceptions, through inadvertence or mistake, has been so made up as to not fairly and truly represent what actually transpired, it may, upon due notice, be amended, by order of the court, at a subsequent term, so as to make it conform to the real facts.
    3. Abstract oe title—admissibility in evidence—manner of preparation—requisites, etc. Where an abstract of title to land is shown to have been made by well known abstracters, or by clerks in their office, before the destruction of the records, and delivered, in the due course of business, to a person at the time having an interest in the land or a part thereof, and-it is further shown that such abstracters had been engaged in furnising abstracts of title for several years before and after the date of such abstract, it is admissible in evidence under section 29, chapter 116, of the Revised Statutes, so far as it relates to lost or destroyed deeds, in the party’s chain of title, upon their loss or destruction being shown, or inability to produce them.

      4. The fact that abstracts of title were prepared in an abstract office by one clerk from memoranda and abbreviated notes taken by other clerks from the records, and then signed by the principals in the firm name, does not render them inadmissible in evidence, on the ground they are copies of copies. The data so collected from the records do not constitute the abstract, but only the materials out of which they are constructed.
    5. An abstract of title, in a legal sense, is a summary or an epitome of the facts relied on as evidence of title. It should contain a note of all conveyances, transfers, or other facts relied on as evidence of the claimant’s title, together with all such facts appearing of record as may impair it.
    6. It is no objection to the admission in evidence of an abstract of title, that it fails to show that some of the lost deeds were properly acknowledged. The statute does not require the abstract to note such fact. The existence of the original deed is shown by the preliminary oath, and the abstract is admitted for the purpose of showing title.
    7. An abstract not being admissible in any case, or any part thereof, to prove such facts as the party is prepared to show by a higher grade of evidence, it is not necessary to introduce the whole of it in evidence when it is only required to prove a part of the facts in that way.
    8. If the plaintiff in ejectment introduces in evidence only a part of an abstract of title to make out his case, and it, as a whole, shows the title to the property is not in him, the defendant may introduce the balance of it in evidence.
    9. Practice—when specific objection must be taken. An objection to an abstract of title that it fails to show whether a deed therein referred to was properly acknowledged, if a valid one, should be specifically made on the trial. It comes too late on appeal or writ of error.
    10. Same—directing what the verdict shall be—the court remarking upon the weight of the evidence. Where the right of recovery in an action of ejectment depends upon the existence of certain extrinsic facts about which the evidence is conflicting, the court has no right to take the case from the jury, or to make remarks in the presence of the jury as to the weight of the evidence. There is no difference in this respect between an ejectment suit and any other.
    11. But where the plaintiff’s written evidence show's title in him, in the absence of any countervailing evidence the court is warranted in instructing the jury to find for the plaintiff; and in such case, any expression of opinion by the court with respect to the force or effect of the evidence, in the hearing of the jury, before so instructing, can make no difference.
    Appeal from the Circuit Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.
    Mr. Edward Boby, for the appellant:
    The court erred in admitting in evidence the so-called .abstract of title. It was not made in the ordinary course of business, and was never delivered as required by the statute. What an abstract of title is, is not defined by the statute, nor what is the ordinary course of business.
    As to the requisites of abstracts of title see, Preston’s Work on Estates; Lee on Abstracts'of Title; Moore on Abstracts of Title; Taylor on Abstracts; Warville on Abstracts.

      The copy of a copy of a logt or destroyed document is not receivable in evidence, even though the absence of the first copy has been satisfactorily explained. Best on Evidence, 612, 3483; Liebman v. Poole, 1 Stark, 167.
    Extracts from an abstract can not be put in evidence apart from the whole abstract.
    The remarks of the judge in the hearing of the jury, and his taking the case from the jury, was error. Graham & Waterman on New Trials; 706-708.
    Mr. Geobge S. Willetts, for the appellee:
    The plaintiff proved his case in two ways: First, by proving a connected title, deduced from a patent; and second, by proving a leasing to the defendant by the plaintiff, or his ancestor, under which lease the defendant entered. Tilghman v. Little, 13 Ill. 240; Carter v. Marshall, 72 id. 611.
    The abstracts were properly identified and admitted in evidence after the foundation for secondary evidence was laid.
   Mr. Chief Justice Mulket

delivered the opinion of the Court:

On the 18th of September, 1883, Augustus Lamb brought an action of ejectment in the circuit court of Cook county, against Nicholas Heinsen, for the recovery of lot 9, block 63, in South Chicago, being a subdivision by the Calumet and Chicago Canal and Dock Company of the east half of the west half, and part of the east fractional half, of section 6, township 37, north, range 15, north of Indian boundary line, and that part of fractional section 6, township 37, north, ratige 15, south of Indian boundary line, lying north of the Michigan Southern railroad, and fractional section 5, township 37, north, range 15, north of the Indian boundary line, all in sections 5 and 6, township 37, north,'range 15, east of third principal meridian. The suit was subsequently dismissed, on the plaintiff’s own motion, as to all the premises, except a small part in the actual possession of the defendant, which is described in the record by metes and bounds. The cause was heard in January, 18S6, before the court and a jury, resulting in a verdict and judgment for the plaintiff. The defendant took an appeal from the judgment to this court, and the cause was submitted at its March term, 1886. Upon filing the record here, appellee first discovered, as he claims, that certain important facts materially affecting some of the questions raised by appellant, had been omitted in making up the bill of exceptions. He thereupon called the attention of appellant’s-counsel to the matter, and requested him to consent to an amendment of the record, so as to make it truly represent the facts as they occurred. On failing to obtain such consent, appellee’s counsel thereupon served appellant’s attorney with a written notice that he would, on Saturday, the 20tli day of March, 1886, at ten o’clock A. M., or as soon thereafter as counsel could be heard, appear in open court before the judge who tried the cause, and move the court to amend the bill of exceptions in the respect indicated. The motion was entered, and allowed by the court, in pursuance of the notice, and the bill of exceptions amended accordingly. Upon filing in this court a certified copy of the amendment, the appellant entered a motion to. strike it from the files, which was reserved for the hearing. As the question raised by this motion is of a preliminary character, it will be first disposed of.

When a bill of exceptions is once signed and sealed by the judge who tried the ease, and is properly filed in _ court, it becomes a part of the record of the case to which it relates, and it stands precisely upon the same footing of any other record. If a bill of exceptions is executed and filed during term time, it may be amended at any time before the term expires, without notice. During the term the presiding judge who signed it may make any changes or alterations in it which he thinks necessary to make it accord with the facts; but after the term expires, he loses all power to alter or change it on his own motion or mere suggestion. In case of amendments of this kind during the term, the proper practice is to call attention of counsel to the fact; but where a bill of exceptions, through inadvertence or mistake, has been so made up as to not fairly and truly represent what actually transpired in court, it may, upon due notice, be amended, by order of the court, at a subsequent term, as was done in this case, so as to make it conform to the real facts. That a bill of exceptions may be thus amended, has been expressly held by this court. Goodrich v. City of Minonk, 62 Ill. 121, and Newman v. Iiavenscroft, 67 id. 496. The motion to strike the transcript of the amended record from the files must be denied.

The appellee derives title to the property in dispute through a short and direct chain of conveyances from the Calumet and Chicago Canal and Dock Company. So far as this branch of the case is concerned, there is little or no difficulty. That company claimed title, through numerous mesne conveyances, from Samuel C. George, the patentee of the land. The records of the latter conveyances were all burned in the great fire at Chicago, in 1871, and many of the conveyances themselves were either lost or destroyed, so that they could not be produced on the trial. Under these circumstances, the plaintiff, in order to prove the contents of the lost or destroyed deeds, was compelled to rely on an abstract of title, which had been prepared and delivered, in due course of business, before the destruction of the records. The chief controversy in this case relates to the admissibility of this abstract in evidence for the purpose stated. Assuming the contents of the lost or destroyed deeds in plaintiff’s chain of title to be sufficiently established by the abstract of title used for that purpose, there is but little, if any, room to doubt that the verdict and judgment in the case were warranted by the evidence, and as appellant has not shown, or even attempted to show, title in himself, or in any any one else, it is only necessary to consider the more important objections urged against the appellee’s title.

. The first question to be considered, and by far-the most important one in the case, is, whether the abstract was made out in such manner and under such circumstances as to waiv rant its admission in evidence. The conditions upon which such an instrument, or any part thereof, may be admitted in evidence, are prescribed by statute with great particularity, hence there is no- occasion for considering the question from a common law aspect.

By section 29, chapter 116, of the Revised Statutes, it is provided, that “whenever, upon the trial of any suit or proceeding which is now or hereafter may be pending in any court in this State-, any party to such suit or proceeding, or his agent or his attorney in his behalf, shall, orally, in court, or by affidavit to be filed in such ease, testify and state under oath that the originals of said deeds, or other instruments in writing, or records of any court relating to any lands, the title of any interest therein being in controversy in such suit or proceeding, are lost or destroyed, or not within the power of the party to produce the same, and that the records thereof are destroyed, by fire or otherwise, it shall be lawful for any such party to offer, and the court shall receive, as evidence, any abstract of title made, in the ordinary course of business, prior to such loss or destruction, showing the title of such land, or any part of the title of such land, that may have been delivered to the owners, or purchasers, or other parties interested in the land, the title, or any part of the title, of which is shown by such abstract of 'title. ”

The abstract in question was made in 1869, and bears date July 15, of that year. It was prepared in the office, and by the clerks, of Jones & Sellers, well known abstracters, doing business in Chicago at that time. The. abstract was, or at least so much of it as was put in evidence, prepared for and delivered to Elliott Anthony, in due course of business, he' at the time having an interest in the tract of land of which that now in controversy is a part. This is positively sworn to by him. It is also shown by the testimony of others, that Jones & Sellers were doing a regular abstract business in the city for years before and after it (this abstract) was made. This evidence, we think, was sufficient to warrant, the admission of so much of it as related to the lost or destroyed deeds in the plaintiff’s chain of title, upon satisfactorily showing their loss, destruction, or plaintiff’s inability to produce them, as required by the section of the statute above cited. This, we think, was done. Indeed, no complaint is made on this ground. The admission of the abstract is assailed, mainly, on the ground that it is not an original instrument, but, at most, a mere copy of a copy. It appears from the testimony of Mr. Goode, who was a clerk in the office of Jones & Sellers at the time the abstract was prepared, that quite a number of clerks were required to conduct the business of the office; that some four or five of them were occupied in making notes from the records respecting titles. These notes were taken in pencil, in short form, many of the words used being mere abbreviations. When completed they were handed over to a Mr. Earle, a clerk in the office, who there wrote them out at length, when they were then signed by Jones & Sellers. All abstracts furnished by them were prepared in this manner, and the evidence shows that the same course was pursued in most of the other offices of the city. In all this we see nothing to justify the claim that the abstract in question was nothing but a mere copy of a copy. The data collected from the records in abbreviated expressions, many of which were probably intelligible only "to those connected with the office, did not constitute the abstract. They were only the materials out of'which it was constructed. The objection is not well taken.

j It is also contended that the court erred in permitting the plaintiff to put in evidence a part of the abstract only, the contention being that the abstract should have been put in evidence as an entirety, or not at all. To this it is answered by appellee, that the memoranda furnished by the abstracter respecting each conveyance in the chain of title, is an abstract, within the meaning of the statute. The appellant’s position is, without doubt, wholly untenable, and that of appellee is not entirely accurate. We understand an abstract, in a legal sense, to be a summary or an epitome of the facts relied on as evidence of title. Such being its meaning, it might consist of a note of a single conveyance, as it always does where the patentee furnishes an abstract of his title. But an abstract, properly so called, must contain a note of all conveyances, transfers, or other facts relied on as evidences of the claimant’s title, together with all such facts, appearing of record, as may impair it. But it by no means follows, that, because an abstract means a synopsis of all the facts relied on in support of a particular title, the whole of it must be put in evidence, when it is only necessary to prove a part of the facts in that way. An abstract is not admissible in any case, nor is any part of it, to prove such facts as the party is prepared to prove by a higher grade of evidence.

The claim that if the whole of the abstract had been put in evidence it would have shown, affirmatively, that the title to the whole of the property was not in the plaintiff, is unsupported dby evidence. We can not tell how that may be. We are concerned with the facts that were actually proved, and not with such as might have been. The latter lie in the domain of pure conjecture, where we are not permitted to enter, even if disposed to. If the remaining portion of the abstract not put in evidence would have shown no title in the plaintiff, no reason is perceived why it was not put in evidence, as it was there in court, and appellant’s counsel clearly had the right tó use it for that purpose if he desired to do so.

It is also objected that the memoranda in this abstract failed to show that some of the deeds which counsel was unable to produce, were properly acknowledged. It is sufficient to say, that the statute providing for the admission of such instruments in evidence contains no such limitation. The loss of the original deeds is shown by the preliminary oath, and the abstract is admitted for the purpose of “showing title.” Moreover, the specific objection now urged does not seem to have been made in the court below, and it can not be raised here for the first time, even if it would have been good in the trial court. Wright et al. v. Smith, 82 111. 528.

It is also assigned for error, that the court improperly instructed the jury to find for the plaintiff. Where the right of recovery depends upon the existence of certain extrinsic facts about which the evidence is conflicting, the court has no right to take the case from the jury, nor has the court, in such case, the right to make remarks, in the presence of the jury, expressive of its opinion as to the weight of the evidence, as is claimed was done in this case. There is no difference in this respect between an ejectment suit and any other. This, however, is not a case of the kind suggested. Looking at the abstract as supplying the place of the conveyances which could not be produced, we think the court, in the absence of any countervailing testimony, was warranted in taking the case from the jury as it did, and if so, any expression of opinion by the court with respect to the force or effect of the evidence, in the hearing of the jury, before doing so, could have made no difference whatever in the result. The complaint, therefore, on that ground, can not avail.

The judgment will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    Mahlon Hutchinson et al. v. Jason C. Ayres.

      Filed at Ottawa June 12, 1886.

    1. Parties—on bill against trustees—whether all should be made par-' ties. On bill by the cestuis que trust against the trustees, seeking relief, all the trustees should be made parties, in order that, as each co-trustee is liable, complete justice may be done by adjusting the liabilities of the co-trustees, and thus obviate the necessity of ulterior proceedings and a multiplicity of suits.
    2. There are exceptions to this rule, however, as, when one of the trustees has declined the office, or been discharged, he need not be made a party, and when the breach of trust is in the nature of a tort, for which there can be no contribution between the defaulting trustees, they need not be joined as .defendants in a bill for the breach.
    3. Same—practice—time to object for want of proper parties. In a suit by cestuis que trust against two trustees of an estate, the court dismissed the bill as to one trustee for want of equity, and found the other guilty of waste, and referred the cause to the master. Afterward, on complainant’s motion, the bill was dismissed as to the other trustee, without prejudice, and an appeal taken from the first order of dismissal: Held, that the defendant as to whom the court dismissed the bill for want of equity, might raise the objection of the want of necessary parties, on the appeal, he having had no opportunity for doing so before.

      i. Final order or decree—what so regarded—as affecting the right of appeal. On a bill by cestuis qui trust against trustees of an estate, for mismanagement and waste, and for an accounting, the court, on the hearing, dismissed the bill as to one of the defendants, and referred the cause to the master to take an account against the other, after which the court, on complainant’s motion, dismissed the bill without prejudice as to the other trustees defendant: Held, that no appeal or writ of error would lie to review the first order of dismissal, until final decree on the merits as to the other trustee, who was a necessary party.
    5.. Same—when interlocutory decree becomes final. Where a bill seeks both temporary and permanent relief, if the prayer for permanent relief is abandoned, the decree or order on the temporary relief will become final, so that it may be reviewed on appeal or writ of error.

      Appeal from the Appellate Court for the First -District;— ■ heard in that court on appeal from the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.
    This was a bill in equity, exhibited by the appellants, against the appellees, Jason C. Ayres, Maria Hutchinson and John V. Thomas, in the circuit court of Cook county, in which it is alleged that the complainants are the children and heirs at law and legatees of John P. Hutchinson, deceased, late of Dixon, in Lee county; that said John P. Hutchinson died about December 30,1872, and left a last will, which was duly probated in the county court of Lee county, January 2,1873; that orators are the beneficiaries in said will mentioned; that in his said will said Hutchinson bequeathed to each of his children the sum of $10,000, which defendants Maria Hutchinson and Jason C. Ayres, the trustees and executors therein named, were directed, as soon as each of orators should attain the age of eighteen years, to take out of the principal of his estate, and to hold for said orators; that the interest and income of said $10,000 should be paid to orators till they respectively attained the age of twenty-six years, when the principal should be delivered to them, and all the residue of said estate of the testator was devised to defendant Maria Hutchinson, for the .period of her life, the income and proceeds to be enjoyed by her during life, without waste or encroachment, however, on the principal, and upon her death the whole estate should be divided among orators, his children, in equal portions; that defendants Ayres and Hutchinson accepted the trusts imposed upon them by said will, and duly qualified as executors of said will, and letters testamentary were issued to them; that defendants reduced the personal estate to possession, and collected the income of realty and took charge of the estate; that Ayres acted as sole manager, and assumed control of the estate; that said Maria Hutchinson had but little knowledge of affairs, and trusted everything to said Ayres; that the inventory filed by said executors of the assets of said estate showed that they had-in their hands property to the value of about $58,000; that the entire debts of the estate amounted to only $800; that all of orators have long since attained the age of eighteen years, and are still under the age of twenty-six years, yet no sum has been set apart for them and no interest paid to them; avers that defendants have wasted and squandered the estate, so that only about $30,000 remains of the same, and that the great bulk of said estate was in good interest bearing securities; that although the will provides that no encroachment should be made on the principal of said estate, yet they have permitted over one-half of said estate to be wasted and spent; avers that certain accounts were, from time to time, presented by the executors to the county court of Lee county, and approved, but such accounts were approved without notice to them, and are not binding Vipon them, and that said accounts are not true and just accounts, but are incomplete, false and untrue; that said accounts credit said executors with moneys spent by defendant Maria Hutchinson out of her private estate, and with money paid out by her for her private use; that although the will provides that said Maria Hutchinson should only spend the income of said estate, yet said Ayres paid her large sums of money for her own use, when there was in fact no money applicable to the individual use of said Maria; that on October 6, 1876, Ayres presented his resignation as executor, and pretended to resign the trusts imposed upon him by said will, and his resignation as executor was accepted, but not as trustee; that thereupon said Maria Hutchinson became sole executrix, but orators aver that all the duties of said defendants as executors had been fulfilled and all the debts paid, and they held the estate as trustees, and the resignation of Ayres was void and of no effect; that on July 11,1877, said Ayres, who was a surety on the bond of Maria Hutchinson, well knowing that the estate was being wasted and squandered, withdrew from the bond of said Maria, and she was removed as executrix, and John V. Thomas was appointed by the county court administrator de bonis non of said estate; but they charge that the appointment of said Thomas was null and void, as there were no duties for said executor to perform, and the trustees having accepted, could only be relieved from duty in a court of equity; .that Thomas now has possession of the remainder of the estate; that said defendants Ayres and Thomas refuse to come to a just accounting with orators, but set up the approval of the accounts by the county court as an estoppél on orators, but orators say that even if such accounts were final, orators were all minors when said accounts were approved, and could not be estopped; that by reason of the approval of the accounts of said executors and said administrator de bonis non, orators can not bring them to an account in the county court, and are without remedy, save in a court of equity, therefore pray that defendants may be summoned and to account, and that an accounting may.be had under the direction of a court of equity, and that Thomas may be decreed to pay to orators all the funds in his hands.
    Summons was issued to the sheriff of Cook county, and served by him on the defendant Maria N. Hutchinson, and an alias summons was issued to the sheriff of Lee county, and served on the defendants Ayers and Thomas. Ayres answered, admitting that he was appointed executor jointly with Maria 1ST. Hutchinson, and that he qualified as such executor, and that he subsequently resigned as executor, but denying that he ever accepted the position .of trustee. He alleged that the bulk of the estate never was in his hands, and denied all the other material allegations of the bill. Answer was filed by Thomas, putting in issue the allegations of the bill as to him.
    The court, on hearing, decreed that the bill of complainants be dismissed as to the defendant Ayres, for want of equity, and the defendant Maria N. Hutchinson was declared guilty of waste, and the cause was referred to the master in chancery to state an account as to her, and thereupon the complainants prayed an appeal to the Appellate Court for the First District. .And afterwards, on complainants’ motion, it was ordered that the bill of complaint be dismissed as to John Y. Thomas and Maria N. Hutchinson, without prejudice, however, as to any suit at law complainants might be advised to bring, and vacated the decree theretofore entered as to Maria N. Hutchinson. At a subsequent day, a stipulation was entered into between counsel for the complainants and counsel for Maria N. Hutchinson, to the effect that complainants’ bill should be so amended as to allow them to reinstate the bill as to her" at any subsequent day. The Appellate Court affirmed the decree of the circuit court.
    Mr. I. K. Boyesen, and Mr. Thos. Dent, for the appellants:
    The dismissal "of the bill as to Thomas and 'Hutchinson after the decree had been entered up as to Ayres, does not estop complainants from assigning error on the decree in favor of Ayres. Weaver v. Poyer, 70 Ill. 568; Life Ins. Co. v. Manufacturing Co. 97 id. 544.
    The devisee of the income for life was not entitled to the possession oT exclusive control of the corpus of the fund. Welch v. Savings Bank, 94 Ill. 191; Field v. Hitchcock, 17 Pick. 182; Hooper v. Bradbury, 133 Mass. 303; Clark v. Clark, 8 Paige, 122; Cairns v. Chanbert, 9 id. 159.
    Even if Ayres did not personally waste the fund, if he 'did not exercise reasonable diligence in preventing the executrix from .wasting it, he is personally liable. Earl v. Earl, 93 N. Y. 104; Booth v. Booth, 1 Beav. 125; Lincoln v. Wright, 4 id. 427.
    It is the duty of co-trustees to protect the estate against each other. Hill on Trustees, 478;' 3 Williams on Executors, 1932; Covenhoven v. Shuler, 2 Paige, 121; Johnson v. Corbett,
      11 id. 265; Laroe v. Douglas, 13 N. J. Eq. 308; Schenk v. Schenk, 16 id. 174.
    Co-administrators are liable for each other’s acts. Marsh v. People, 15 Ill. 278.
    Where stores were rented out by one of -two executors, and he misappropriated the rents, it was held that both were liable, as the other could have prevented misappropriation by reasonable care. Foute’s Exrs. v. Norton, 36 Miss. 355.
    If trustees do any act which takes the property out of the joint control of all and place it within the control of one, they become liable for the acts of the persons in whose hands the funds are placed. Clough v. Bond, 3 M. & C. 491; Hill on Trustees, 473, 474, 478; Langford v. Gascoyne, 11 Ves. 333; Brice v. Stokes, id. 319; Sparhawk v. Buell, 9 Vt. 41; Morrell v. Morrell, 9 Johns. Ch. 283; Wilson v. Fischer, 1 Hals. Ch. 495.
    The executors gave a joint bond and settled joint accounts. By so doing they admitted joint possession of the property, and are estopped from denying it. Laroe v. Douglas, 13 N. J. Eq. 308; Ducommon’s Appeal, 5 Harr. 268; Clark’s Appeal, 6 id. 175; Hengst’s Appeal, 12 id. 413.
    Messrs. Edsall & Edsall, for the appellee:
    Upon the bill, as framed, Mrs. Hutchinson and Thomas were necessary parties. After the voluntary dismissal of the bill as to these parties, the circuit court could not proceed to a decree against Ayres, as sole defendant. Story’s Eq. PI. sec. 541.
    Neither Thomas nor Mrs. Hutchinson is a party to this writ of error. A reversal and remandment as to Ayres would not be a reversal and remandment as to them. The cause would go back, with Ayres as sole defendant.
    The order of the circuit court dismissing the bill as to these defendants, can not be treated as a mere formality. An appeal or writ of error would not lie from the decree dismissing the bill as to Ayres, until there was a final decree as to the other defendants. International Bank v. Jenkins, 109 Ill. 219; Thompson v. Follansbee, 55 id. 427.
    Proof of the will, and acting as one of the executors thereof, was not an acceptance of the position of trustee for the children under the provisions of this will. 1 Perry on Trusts, sec. 262; Wheatley v. Badger, 7 Pa. St. 459; Williams v. Cushing, 34 Me. 370; Deering v. Adams, 37 id. 265; Jones’ Appeal, 3 Grant’s Cas. 169; Perkins v. Lewis, 41 Ala. 649; Martin v. Barnard, 33 Ga. 520; Leavitt v. Wooster, 14 N. H. 550; Sims v. Lively, 14 B. Mon. 348.
    One executor is not responsible for the defaults or waste of funds of the estate committed by his co-executor, unless he in some manner aided or concurred therein. Ormiston v. Olcott, 84 N. Y. 339; Sutherland v. Brush, 7 Johns. Ch. 11; Kerr v. Kirkpatrick, 8 Ired. Eq. 137; 2 Williams on Executors, *1641, *1655.
    Messrs. W. & W. D. Barge, also for the appellee:
    One executor or trustee is not responsible for any waste' by his co-executor or co-trustee, unless he has encouraged it. Kerr v. Kirkpatrick, 8 Ired. Eq. 137; Ochiltree v. Wright, 1 Dev. & Bat. 338; 2 Williams on Executors, *1641, *1655; Peter v. Beverly, 10 Pet. 532; Brazer v. Clark, 5 Pick. 96; Davis v. Watford, 2 Carter, (Ind.) 83; Ray v. Daugherty, 4 Blackf. 115.
    The fact that executors join in the probate of the will or take out joint letters testamentary, will not make one liable for the default or misconduct of the other. Mesrow v. Peyton, 8 Leigh, 54; Balchen v. Scott, 2 Ves. Jr. 678.
    One executor is not responsible for permitting the other to receive the assets of the estate when he has no reason to believe that they will not be safe in his hands. Langford v. Gascoyne, 11 Ves. 333; Hargthorpe v. Milforth, Cro. Eliz. 318; Peter v. Beverly, 10 Pet. 532; McBivi v. Aulback, 130 Mass. 481; Ormiston v. Olcott, 84 N. Y. 339; Sutherland v. Brush, 7 Johns. Ch. 22; Monell v. Monell, 5 id. 283; Manahan v. Gibbon, 19 Johns. 427; Williams v. Maitland, 1 Ired. Eq. 92; Fennimore v. Fennimore, 3 N. J. Eq. 292; Worth v. McAden, 1 Dev. & Bat. Eq. 190; Noland v. Colvit, 20 Mass. 273; Banks v. Wilkes, 3 Sandf. Ch. 99; Clark v. Jenkins, 8 Rich. Eq. 318; White v. Bulloch, 20 Barb. 91.
    The defendant’s co-executor, Maria N. Hutchinson, was entitled to the possession, and had the control and disposal of the assets of the .estate, under and by virtue of the provisions of the will. The defendant, Ayres, never accepted the office or position of trustee under this will, and he never acted in that capacity.
    The offices of trustee and executor are distinct, and if it appeared from the will that the testator intended to give his trustees a distinct and independent character, probate of the will by his executors will not make them trustees. Whecitley v. Badger, 7 Pa. St. 459; Perry on Trusts, sec. 262; Judson v. Gibbons, 5 Wend. 226; Williams v. Cushing, 34 Me. 370; Deering v. Adams, 37 id. 265; Knight v. Loomis, 30 id. 204; Hanson v. Worthington, 12 Md. 418.
    The dismissal of the bill as to necessary parties is fatal, and the bill must then be dismissed as to all. Moore v. Simpson, 5 Litt. 49; Bowen v. Idley, 6 Paige, 46; Barbour on Parties, 548.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The rule, as laid down in Perry on Trusts, (2d ed.) section 876, is: “If the cestuis que trust bring a suit against the trustees, praying for relief, all the trustees ought to-be made parties, -in order that, as each co-trustee is liable to the cestuis que trust, the court may do complete justice, so far as possible, by taking the accounts once for all, and by adjusting the liabilities of the co-defendants, and thus obviate the necessity of ulterior proceedings and a multiplicity of suits. The co-trustees ought to be made parties, (although the equities between themselves can not be adjusted,) for the reason that the decree of relief to the cestuis que trust is the foundation of the relief to the co-trustees inter sese) and if any of the trustees are not parties to the first suit by the cestuis que trust, they will not be bound by the decree, and the whole subject matter will, of course, come under litigation for the second time.” There are exceptions to this rule, as, where one of the trustees has disclaimed the office, or has been discharged, he may not be made a party; and so where a breach of trust is in the nature of a tort, for which there could be no contribution as between the defaulting trustees, they need not all be joined as defendants in a bill for the breach. (Ibid.) But none of the exceptions are pertinent here. Hill on Trustees, 813, *521..

Perry v. Knott, 4 Beav. 179, is almost "identical with the present case, except that the question of the want of proper parties was there raised by plea, while here, by the action of' the complainants in first including all the parties, and then, after the hearing, dismissing as.to Mrs. Hutchinson, -the defendant has had no opportunity, until now, to. raise that question. The remarks of the Master of the Bolls there, in regard to the complainant and Mrs. Howell, are strictly applicable to the complainants and Mrs. Hutchinson here. He said, among other things: “One can not help seeing that in this case the child of Mrs. Howell, who, most probably, had the benefit of the breach of trust,, is, by this suit, seeking to call upon the co-trustees of Mrs. Howell, alone, for payment of the money, without giving them the opportunity of . recovering the amount from her estate, which received it. This does not appear to me to be just or equitable, and certainly is not in conformity with the decision of this court.” See, also, Rooke v. Kensington, 39 Eng. L. & Eq. 76; Barbour on Parties, (2d ed.) 740, *530.

Mrs. Hutchinson being a necessary party, no appeal or writ of error lies upon the decree until there is a final decree as to her. International Bank v. Jenkins, 109 Ill. 219; Thompson v. Follansbee, 55 id. 427.

The case is not analogous to those wherein it has been held that a party may, by a voluntary dismisssal, cause a preliminary and interlocutory decision to become final. In those eases the bill seeks both temporary and permanent relief, and where the prayer for permanent relief is abandoned, the decree on the prayer for temporary relief becomes final. In such cases the decree in the prayer for temporary relief is precisely the same that it would be in the prayer for permanent relief; but here the order dismissing, on the complainants’ motion, as to Mrs. Hutchinson, is, in its effect, directly the reverse of the effect of that indicated by the court in the interlocutory decree rendered before the dismissal. No final decree on the merits of the case is rendered against him, nor can there be, so long as this order remains in force, whatever may be the equitable rights between the parties. If it should be that, in the judgment of this court, Ayres is liable on account of the default of Mrs. Hutchinson, as the record now stands she will not be concluded by that opinion, and consequently will -not be concluded by any decree rendered pursuant thereto. Ayres can not be deprived in this way of the righkof insisting that his co-'trastee shall be a party with him, and concluded, as well as himself, by any decree that may be rendered in the case.

Inasmuch as no final decree has been rendered in the ease, the appeal to the Appellate Court was premature.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Sheldon

text:
    Albert Wisner et al. v. Maggie E. Chamberlin.

      Filed at Ottawa May 15, 1886.

    1. -Accelerating maturity oe debt—for non-performance of conditions. Where a mortgage with a power of sale, given to secure the payment of many notes given for the purchase money.of the mortgaged premises, fails to show that any of the notes were given for the interest falling due on each year for the principal, and providing that in case of default of payment of any note for thirty days after its maturity, the mortgagee may declare all the notes due, and sell the property in payment of the same, and the premises are sold for the amount-of all the notes, including some given for unearned interest, a purchaser will have the right to regard all the notes as being for the principal, and therefore rightfully declared due.
    2. And where-the mortgage contains an express covenant that all the notes may be declared due on default in the payment of any one of them for a certain time after due, the fact that the payment of one note, not due, depends upon the mortgagee’s procuring a certain outstanding portion of the title for the mortgagor, will not prevent the former from declaring such note due on failure to pay any of the prior notes within the time fixed, they being subject to no conditions, and on declaring all the notes due a sale may be had for the entire debt.
    3. Limitation—act of 1839—prerequisites to a bar—as to land'exempt from taxation. Seven years’ possession of land under color of title, accompanied with the payment of taxes, bars an assertion of title, under the Limitation act of 1839: When the property is exempt from taxation, there are no taxes to pay, and the statute does not apply. Seven years’ possession, under color of title, of property exempt from taxation, is no bar under the statute.

      4. Tax title—stricti juris. The title to be made under a tax deed is one stricti juris. Therefore, a non-compliance with anything the law makes a condition precedent to the right to have a deed, is fatal, and the court will not look to see whether the omission has misled or injured any one or not.
    5. Same—conditions precedent to the validity of a tax deed—as to the notice, and affidavit thereof. The statute requires, as conditions precedent to the validity of a tax deed, that the purchaser, before receiving the same, shall serve a notice on every person in possession of the premises three months before the expiration of the time of redemption, in which shall be stated correctly when the time of redemption will expire, and make and file an affidavit with the person authorized to make the deed, showing particularly the facts relied on as showing a compliance with the statute, and the filing and entering of such affidavit of record in the proper office. A mistake in the notice as to the time when the redemption will expire, is fatal to the validity of the deed; and whether the date named is later or earlier than the time the redemption actually expires, makes no difference.
    6. An affidavit for the purpose of obtaining a tax deed, stated that on April 19, 1881, the South Park commissioners were in the actual possession of the premises, and that on May 20, 1881, a copy of the notice of the purchase, stating when the time of redemption would expire, was delivered to such commissioners: Held, that the affidavit was fatally defective, in failing to show who were in possession on May 20, 1881, when the notice was served; and this defect could not be cured by evidence aliunde, showing the commissioners were still in possession when the notice was served. The affidavit itself must state the facts.
    Writ of Error to the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.
    On October 27, 1882, Maggie E. Chamberlin", the defendant in error, filed her petition in the circuit court of Cook county, under what is commonly known as the Burnt Records act, to establish her title to the east half 'of lot 8, block 2, in Yerby’s subdivision of the north half of the north half of the northwest quarter, and the west half of the north-east quarter, of section 15, township 38 north, range 14 east, making defendants a number of parties, all of whom made default, except Albert Wisner and the South Park commissioners, the plaintiffs in error herein. The South Park commissioners claim title to the north one hundred and thirty-four feet, and Wisner to the remainder of the half lot. Both plaintiffs and defendant in error claim title through one Amelia Wiltberger, who acquired title in June, 1852, and died intestate some time in that year, leaving her surviving, her husband, Joseph W. Wiltberger, and six childern, three of whom were minors, the youngest, a daughter*, having been born October 30, 1848.
    By decree of the Cook circuit court, rendered May 29, 1857, at the suit of Joseph W. Wiltberger, where all of said children were made defendants, it was decreed that an undivided half of the property, afterwards subdivided. by Yerby, was vested in Joseph W., and one-half in the children. By deed dated November 18, 1858, and recorded the next day, Joseph W. Wiltberger and the adult children conveyed the property to Jesse Embree, which deed was also executed by Joseph W. Wiltberger, as guardian of the minor children. The consideration recited was $94,550. The deed contained covenants by the father and the adult children, of seizin, of right to convey, of freedom from incumbrance, and of general warranty in peaceable possession.
    By mortgage dated November 18, and recorded November 19, 1858, Jesse Embree conveyed the same premises to Joseph W. Wiltberger, to secure payment of the unpaid 'part of the purchase money for the property, to-wit, $91,200, which was evidenced by nineteen notes, eighteen of which were for the sum of $2400 each, and one for $48,000, without interest. Two of the eighteen notes were payable on the first day of January of each year, beginning with 1859, and ending 1867, and the $48,000 note was payable January 1, 1868. The mortgage contained the condition, that if default was made in the payment of any of said promissory notes-for such periods as w-ere in the mortgage specified, then “the w'hole sum remaining unpaid shall immediately become due and payable, as in said promissory notes expressed; ” and then the mortgagee, as attorney in fact of the mortgagor, might sell and convey the premises. ■ The nineteenth note was as follows: “$48,000. Chicago, November 18, 1858.

    “On the first (1st) day of January, A. D. 1868, I promise to pay to the order of Joseph W. Wiltberger, $48,000, value received. This note is given, to the ratification of the sale and conveyance of their part, being one-fourth of a part of section 15, in township 38, north, range 14, east of the third P. M., described in a deed bearing even date herewith, between Joseph W. Wiltberger and others, to Jesse Embree, by the minor heirs of Joseph W. Wiltberger, named as follows: Charles Lewis, Joseph Samuel, and Laura Ann Wiltberger, and is to be paid when due, if said minors before that 'time shall have conveyed their interest so as to pass all their right, title and interest in and to said premises in said deed described, to the said Jesse Embree, his heirs, executors, administrators or assigns, and is to be paid any time thereafter when said minors shall well and truly convey their interest in fee, as above described, to said Jesse Embree, his heirs, executors, administrators or assigns, so that it will inure to his or their benefit.
    Jesse Embree.”
    On May 9, 1862, Joseph W. Wiltberger published a notice of mortgage sale, in which he stated that default had been made in the payment of seven of said notes, and that he would sell, June 10, 1862, the premises in the mortgage described, to pay said indebtedness. By deed dated June 30, 1862, Joseph W. Wiltberger, describing himself as mortgagee, conveyed the premises to Egbert W. Wiltberger, the deed being acknowledged and recorded September 16, 1862, and it being recited therein, that at the mortgagee’s sale the forty acre tract was first sold to Egbert W. Wiltberger for $400 per acre, and then the eighty acre tract was sold to him for $400 per acre, and that in consideration of the sum of $48,000, the two tracts were conveyed. In the deed it is recited that the whole of the notes were declared due. By quitclaim deed dated September 4, 1862, and recorded September 17, 1862, Egbert conveyed back the two tracts to Joseph W. Wiltberger, and by deeds dated, respectively, February 4, 1863, January 13, 1865, and November 4, 1865, Charles Lewis, Joseph Samuel, and Laura Ann Wiltberger, the minor heirs, respectively, quitclaimed the said premises to Joseph W. Wiltberger. The Wiltberger title to lot 8, block 2, remained in Joseph W. Wiltberger till January 22, 1863, when he conveyed, by warranty deed, said lot to Daniel H. Carpenter, the deed being recorded January 26, 1863; Carpenter, by warranty deed dated January 20, 1864, and recorded February 25, 1865, conveyed the lot to Mary Todd, who, by warranty deed dated September 21, 1865, and recorded September 23, 1865, conveyed the east half of the lot to William Galway, trustee, who conveyed the same to defendant in error by deed dated August 28, 1880. In 1857 the whole of the land described in the mortgage was subdivided by Yerby, an agent for Embree, which subdivision has been adopted by all parties ever since.
    Plaintiffs’ in error-claim of title is derived as follows: By warranty deed dated August 19, 1859, recorded March 8, 1861, Embree conveyed to Amos F. Tompkins numerous lots, including said lot 8. By quitclaim deed dated May 25, 1869, Tompkins conveyed lot 8 and other property to Joseph G. Gibbons. By warranty deed of September 20, 1870, Gibbons conveyed lot 8 and other property to James H. Bees. By deed dated September 23, 1870, Bees conveyed to the South Park commissioners the north one hundred and thirty-four feet of twenty-one lots, including lot 8, for the consideration, as recited, of $31,500. By quitclaim deed of date November 18, 1876, Bees conveyed to Josiah C. Goodhue an undivided half of lot 8 and other property, and this interest conveyed to Goodhue, by subsequent mesne conveyances, was transferred to Albert Wisner. Wisner also claims title under a tax deed to the east half of lot 8, except parkway, under sales for taxes made in 1879.
    The north one hundred and thirty-four feet of lot 8 is included within the limits described in the South Park acts as territory to b.e taken for park purposes, and in 1871, and since then, the park commissioners graded it for boulevard purposes, grubbed out the trees and stumps, and spread manure on it, but there has never been any travel on it. From about 1870 to 1880 the park commissioners used the south half of lot 8 for a pound, and had it fenced in, and after February 18, 1880, held it as tenant of Wisner. From 1873 to 1881 the east half of lot 8 was described in the assessment books as “except parkway.” It was shown that the entire Yerby tract was not worth more than $100 to $150 an acre, any time from 1862 to 1868 or 1869, when its value rose very rapidly on account of the .location of the park.
    The decree of the circuit court was in accordance with the prayer of the petition, establishing the title to the east half of said lot 8 in the defendant in error.
    Mr. Jesse B. Barton, for the plaintiffs in error:
    Joseph W. Wiltberger made a conveyance to Embree, wherein he attempted to convey a quarter interest owned by three minors, the youngest of whom would not attain his majority until October 30,1866. The consideration recited was $94,-550, but really was $51,250, which is arrived at as follows: The mortgage recites an indebtedness of $91,200, part purchase money, leaving a balance paid of $3250, but the actual debt secured by the mortgage was $48,000. Embree gave Wiltberger back a mortgage securing the payment of the principal note of $48,000, which was to become due January 1, 1868, but only on a condition that the titles of the minor heirs should then have inured to his or his grantee’s benefit. This note, then, could not become due by any kind of default, until after October 30, 1866, and Wiltberger had no right to declare it due in 1862, and sell the property to pay the whole debt.
    Under two well known principles of law, Wiltberger’s sale under that mortgage was void: First, when a mortgagee is the grantor of the mortgagor by previous conveyance with covenants of warranty, he can not foreclose the mortgage for condition broken-,, if there then exists a breach of covenant of his warranty. Coffman v. Scoville, 86 Ill. 300; Smith v. Newton, 38 id. 230; Jones on Mortgages, secs. 1508-1178. And second, a mortgage sale, if for more than is due, is void. Jones v. Rumsey, 3 Bradw. 303; Hards v. Burton, 79 Ill. 504; Rains v. Mann, 68 id. 264; Smith v. Smith, 32 id. 198; Gibbons v. Hoag, 95 id. 45.

      When, too, the principal of a mortgage debt can ntit be declared due for non-payment of interest, there can be no foreclosure for such non-payment. Jones on Mortgages, sec. 1178, and cases cited.
    Messrs. G. & W. Garnett, for the defendant in error:
    This court has sustained the validity of the sale and deed by Wiltberger under the Embree mortgage. Gibbons v. Hoag, 95 111. 45.
    The mortgage describes all the notes alike, and says nothing about the $2400 notes being intended for interest, and the deed from Wiltberger to Embree shows a consideration of $94,550. Embree, and those claiming under him, can not complain if purchasers' under the mortgage relied upon the recitals in the deed and mortgage.
    The tax deed is void, for the reason no proper notice of the date of the purchase, and when the time of redemption expired, was served on the parties in possession. It states that the tax sale was on September 18, 1879, and that the redemption would expire October 18, 1881.
    The affidavit of Stanley is wholly insufficient to authorize a deed. It fails to show what the notice served stated as to when the time for redemption would expire, but simply says that the notice stated when the time of redemption would expire. The law does not allow a party to give his opinion on any legal question, but requires him to state particularly the facts relied on.
    The affidavit of French is equally defective in failing to show that the persons served with notice were the only persons in possession at the date of the service. It states he delivered the notice to the South Park commissioners. The corporation, as an abstract being, could not have a copy of a notice delivered to it. It is probable he meant a delivery to the persons composing the board. If so, he should have stated their names, so that it might be known whether they were such officers or not. The affidavit should have stated particularly the facts relied on as showing a service, and not the party’s conclusions.
   Mr. Justice Sheldon

delivered the opinion of the Court:

The opening paragraph of the brief of counsel for plaintiffs in error is as follows: “As no questions were raised on the trial but such as called for a decision on the sufficiency of the foreclosure of the Embree mortgage, and of the tax title, it will not be necessary to discuss any other, excepting, perhaps, laches and possessory titles.” The inquiry before us, then, is quite limited, and hardly even reaches to the extent of the sufficiency of the foreclosure of the Embree mortgage, as that matter was before us on a former occasion, in the case of Gibbons v. Hoag, 95 Ill. 45, where we passed upon the question of the validity of the sale and deed made by Joseph W. Wiltberger to Egbert W. Wiltberger under the power of sale in the mortgage from Jesse Embree, and of the deed from Egbert W. to Joseph W., and decided that they were valid, and made the better title as between' a subsequent purchaser from Joseph W. Wiltberger, in 1863, and one under Embree, in 1869. That was a like proceeding as the present, under the .Burnt Records act, for the establishment of title in the petitioner there, who claimed’under Wiltberger. We are entirely satisfied with the conclusion reached in that ease, and think it must be held decisive upon this point, unless there are different facts shown in this record which should vary the decision. We do not understand counsel as claiming otherwise, but it is insisted there are additional facts presented in this case, which should cause a different determination. Such additional facts are, a stipulation in this case that the $2400 notes, secured by the Embree mortgage, were given for the interest upon the principal sum of $48,000, which was represented by the $48,000 note secured by said Embree mortgage. It is said it was assumed in the former case that the eighteen $2400 notes were principal notes, and that the foreclosure was only for those of the $2400 notes then due, whereas it was for the $48,000 note as well; that as it now appears the smaller notes were for interest only, no interest could be declared due, unless it was then earned; that the $48,000 note could not be made due until the title of the minors to one-fourth of the land had been secured to Embree; and that so a want of power, under the mortgage, to make the sale that was made, is apparent.

The mortgage describes all the notes alike, saying nothing of the $2400 notes being" for interest. The deed from Wiltberger to Embree showed a consideration of $94,550. It •would seem that third parties purchasing under the Wiltberger title, might well rely upon the representations made in these instruments, as against Embree and those claiming under him, and have the right to regard the $2400 notes as principal notes. However it might be with strictly interest notes, that no interest-could be declared due unless it was then earned, we do not regard these smaller notes as being for interest, properly, but as really installments of purchase money for property bought on a credit. The property, as would appear from all the facts in evidence, was bought November 18, 1858, on a credit of .$48,000, payable January 1, 1868, and two payments, of $2400 each, on January 1 of each intervening year. The smaller notes represented the difference between a cash sale for $48,000 and a credit sale on the time given, calculating the difference on the basis of ten per cent interest on the $48,000, and calling the latter principal, and the smaller notes interest, did not alter the esse'n.tial character of the transaction. All the notes represented purchase money for land sold on a credit, and on default in payment, for the time specified, of any of the smaller notes, we think, under the mortgage, all the smaller notes might be declared to be due.

The lot in question is situated in the north half of the north half of the north-west quarter of section 15, and at the mortgagee’s sale that forty acres was first sold for $16,000. There were eighteen of the $2400 notes, and if there ivas right, as we find, to declare them all due, their aggregate amount was sufficient to authorize the sale, not only of the forty, but of the whole one hundred and twenty acres. There was no necessity, then, to declare the $48,000 note due, or that it should be due, to warrant the sale. Reference is made to Jones on Mortgages, section 1178, in support of the proposition that when the principal of a mortgage debt can not be declared due for non-payment of interest, there can be no foreclosure for such non-payment. That rule surely can not apply in such a case as this, where the so-called principal note is given, with other notes, in consideration of land conveyed, and may not be declared due because of its being made a condition of its payment that an outstanding title to one-fourth of the land shall first be gotten in for the benefit of the mortgagor, a title to the other three-fourths being conveyed, and the other notes not being subject to such condition, but payable absolutely, and there being an express covenant of the mortgagor that the other notes may all be declared due upon default of payment of any one of them for a certain time after becoming due.

It is insisted, that the possession of the north one hundred and thirty-four feet of the property in question, by the South Park commissioners, from 1870 to 1882, under the deed thereof from Rees, makes good title in the park commissioners, under the- seven years’ limitation law. It is seven years’ possession under color of title, accompanied with the payment of taxes, which bars title under the Limitation act. There was here no payment of taxes on the land during the seven years. But being park property, and as such exempt from taxation, it is claimed that such exemption is equivalent to payment of taxes. We do not so think. If the land was exempt from taxation, and so there were no taxes to pay, then this Limitation act could not be made to apply here. Seven years’ possession, under color of title, without payment of taxes, will not bring a case within the act.

Wisner’s tax title claim was under a quitclaim deed from P. E. Stanley, the holder of a tax deed, made to him as assignee of two tax sale certificates, under two tax sales, one for the seventh installment of the South Park assessment, made September 3, 1879, of the east half of lot 8, for $25.49, to the South Park commissioners, and the other for the State and county taxes of 1878, of “ex. parkway, E. J lot 8,” for $25.16, September 8,1879, to D. G. Hamilton. It is sufficient for the defeat of the claim of title under the last named sale for State and county taxes, that the notice of the sale required to be served upon the persons in possession of the property sold, did not truly state when the time of redemption, would expire. The time of redemption would expire September 8, 1881,—the notice stated that it would expire on October 18, 1881. 'It was held in Wilson v. McKenna, 52 Ill. 43, and Gage v. Bailey, 100 id. 530, that the misstatement in the notice of the expiration of the time of redemption, would render invalid the tax deed. Section 216 of the -Revenue law makes'it a condition that before the purchaser at a tax sale shall receive a deed, he shall serve, or cause to be served, a written notice on every person in possession of the land or lots sold, three m'onths before the expiration of the time of redemption, in which notice he shall state, among other .things, when he purchased the land or lot, and when the time of redemption will expire; and there is the further provision, that the purchaser must, before he shall be entitled to a deed, make an affidavit of having complied with such condition, stating particularly the facts relied on as showing such compliance, the affidavit to be delivered to the person authorized by law to make'the deed, to be filed and entered of record in the proper office. These requirements were held, in the ease first above cited, to be conditions precedent to the right to have a deed.

In answer to the eases cited, it is said that in both the cases the date given as the expiration of the time for redemption was earlier than that allowed by the statute, and it is supposed that must have been the reason for the holding, but that in the present case the date named as the expiration of the time of redemption was later than that fixed by the statute, giving the owner the full statutory time and over a month more, for redemption, so that no one was injured or misled. It is insisted that this distinction between the cases calls for a contrary decision here. We do not regard it as matter for inquiry whether or not there has been the misleading or injury of any one from wrongly stating in the notice when the time of redemption will expire. The title to be made under a tax deed is one stricti juris, and we need look no further, where there has been non-compliance with what the law makes a condition precedent to the right to have a tax deed. 'We find there was such a non-compliance here, in not stating in the notice the right time of the expiration of the right of redemption, and that that of itself avoids the tax deed. We attach no importance to the distinction in the wrong date of the expiration of the time of redemption, as being earlier or later than that allowed by the statute.

As to the tax deed under the sale for the seventh installment of the South Park assessment, we deem it a sufficient objection to the validity of that deed that the affidavit of service of notice of the purchase for taxes, etc., fails of showing compliance with the prerequisite condition of service of the notice upon the person or persons in the actual possession or occupancy of the lot at the time of such service. The affidavit in this respect is, that the lot described in the notice ■was, on the 19th day of April, 1881, in the actual possession of the South Park commissioners, and that a copy of the notice was delivered to the South Park commissioners May 20, 1881. The affidavit does not state who was in possession on the last named day. Since the 19th of April preceding, the possession may have changed, and the affidavit should have shown service Of the notice upon the person or persons in actual possession at the time the notice was served. It is not sufficient, as is urged, that other evidence in the case shows the park commissioners were in possession at that time. The statute is express, that the purchaser, or his assignee, by himself or agent, shall make an affidavit of having complied with the provisions of the section, stating particularly the facts relied on as showing such compliance, before he shall, be entitled to a deed. Such affidavit was not made, and the purchaser had no right to a deed. We can not go so far to sustain a tax title as to dispense with á condition precedent to it.

We find no foundation in the facts of the case for any imputation of laches to the defendant in error which should affect her title to relief. The decree of the circuit court should be affirmed.

Decree affirmed.

Mr. Justice Scott : I do not concur in this opinion.


author: Mr. Chief Justice Mulkey

text:
    Victoria Umlauf v. Lewis Umlauf.

      Filed at Ottawa March 27, 1886.

    1. Former adjudication—whether a bar to a subsequent suit—as to identity of questions involved. Where an issue of fact is final!)' determined by a court of competent jurisdiction, its finding and determination are final and conclusive upon the parties and their privies in all subsequent litigation between them in which the same question arises, so long as the judgment remains unreversed or not otherwise set aside.

      2. But for the purposes of this rule it is not sufficient that the question arising in subsequent litigation is identical with the one decided, in some respects, only. It must be so in all respects. If there is an element in one of the questions which is not contained in the other, the rule does not apply.
    3. Same—;finding on bill for separate maintenance,, whether conclusive upon right to divorce. A decree dismissing the bill of a married woman for separate maintenance, is not conclusive against her husband’s right to a divorce upon the ground of subsequent desertion by the wife. The question whether a woman lived separate and apart from her husband without her fault, is not identical with the proposition that she willfully deserted and absented herself from him without any reasonable cause.
    4. On December 2, 1880, a wife filed her bill against her husband for a separate maintenance, which, on October 4, 1882, on a hearing, was dismissed; On February 12, 1883, the husband filed his bill against the wife for a divorce, charging her with willful and continuous desertion, “without any reasonable cause,” for a period of more than two years from December 2, 1880. On the hearing of the suit for divorce, the court admitted in evidence, against the wife’s objection, the pleadings and decree in the prior suit, and also excluded all evidence offered on her part tending to disprove the charge of willful desertion without reasonable cause: Held, that the court erred in admitting the record in evidence, and in the exclusion of the other offered evidence.
    Appeal from the Appellate Court for the -First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. George , Gardner, Judge, presiding.
    Mr. Francis Lackner, and Mr. George F. Blanke, for the appellant:
    The parol evidence fails to show desertion on the part of the appellant. The intent to desert is the principal matter, and always necessary to be proved. Desertion commences whenever the separation and the intent to desert are added. 2 Bishop on Marriage and Divorce, .secs. 674, 784.
    The court erred in refusing to allow appellant to state facts to disprove the fact of her willful desertion of appellee,, or state the circumstances bringing about the separation. The rejected evidence might have shown that appellee consented to the desertion. If he consented to her separation from him, there was no desertion. 1 Bishop on Marriage and Divorce, secs. 777, 783.

      If a deserted husband or wife shuts off the avenues of return against the other, or shows that a return is not desired, this may establish a consent to the separation, so as to bar a divorce. 1 Bishop on Marriage and Divorce, 808; Taylor v. Taylor, 1 Stew. Ch. (N. J.) 208; Cornish v. Cornish, 8 C. E. Green, 208; Bowlby v. Bowlby, 10 id. 409; Thorpe v. Thorpe, 9 R. I. 57.
    The decree on the bill for separate maintenance is not conclusive in this case. It does not follow that because a wife is not without fault, the husband is therefore innocent. Wahle v. Wahle, 71 Ill. 510.
    A judgment or decree is not evidence upon a question which is only collaterally drawn in question. Wahle v. Wahle, 71 Ill. 510, citing Freeman on Judgments, sec. 258; Lea v. Lea, 99 Mass. 493; Jackson v. Wood, 3 Wend. 27; Broom’s Legal Maxims, 231. See, also, Hesler v. Hesler, Wright, (Ohio,) 210.
    The matters to be used as an estoppel must have been within the substance of their issue. Mere evidentiary facts are not usually held conclusive. The same issue must be presented in both suits to make the former adjudication conclusive. Wahle v. Wahle, 71 Ill. 516; Russell v. Place, 94 id. 606; Bigelow on Estoppel, 35; People ex rel. v. Johnson, 38 N. Y. 63; Dickinson v. Hayes, 31 Conn. 417; 1 Greenleaf on Evidence, sec. 528; 1 Starkie on Evidence, 201; King v. Chase, 15 N. H. 9; Smalley v. Edey, 19 Ill. 207.
    Mr. Edmund S. Holbrook, for the appellee:
    Where some specific fact or question has been adjudicated and determined in a former suit, and the same fact or question is again put in issue by a subsequent suit between the same parties, its determination in the former suit, if properly presented and relied on, will be held conclusive upon the parties in the latter suit, without regard to whether the cause of action is the same or not in both suits. Ballard v. Insur

      ance Co. 81 Ind. 239; Parks v. Cliff, 9 Lea, 524; Choteau v. Gibson, 76 Mo. 43; Hanna v. Read, 102 Ill. 596; Ruegger v. Railroad Co. 103 id. 449; Mueller v. Henning, 102 id. 646; Gaye v. Bailey, 102 id. 11; Roth v. Roth, 104 id. 35; Rosenmuller v. Lampe, 89 id. 212; Railroad Co. v. Maher, 91 id. 312; Noyes v. Kern, 94 id. 521; Gas Light and Coke Co. v. Howell, 92 id. 19; Howell v. Goodrich, 69 id. 556; Gates v. Preston, 41 N. Y. 113; Prescott v. Fisher, 22 Ill. 155; Lewis v. Lewis, 106 Mass. 309; Fera v. Fera, 98 id. 156; Freeman on Judgments, sec. 257; Bigelow on Estoppel, 45; Slade v. Slade, 58 Me. 157.
    If a final decree is against the complainant, and dismisses the hill on its merits, it is conclusive as to the charges therein set forth. Stewart on Marriage and Divorce, sec. 425.
   Mr. Chief Justice Mulkey

delivered the opinion of the Court:

The appellant, Victoria Umlauf, on the 2d of December, 1880, commenced a proceeding in chancery, in the Superior Court of Cook county, against her husband, Lewis Umlauf, for a “reasonable support and maintenance, ” she at the time living separate and apart from him. The Superior Court, upon the evidence before it, found the equities with the complainant, and rendered a decree accordingly, which, on the 4th of October, 1881, was reversed, and the bill dismissed, by the Appellate Court for the First District.

On the 12th of February, 1883, Lewis Umlauf filed in the same court a bill against Mrs. Umlauf for a divorce, charging her with willful and continuous desertion, “without any reasonable cause, ” for a period of more than two years from the 2d day of December, 1880, being the date of the filing of her bill against him for separate maintenance. Upon the hearing ■ of the cause, the Superior Court admitted in evidence, against her objections, the pleadings and decree in the suit for separate maintenance, and also excluded all evidence offered on her part tending to disprove the charge in the bill that “she willfully deserted and absented herself from her husband without any reasonable cause. ” The ruling of the court in this respect must have been' upon the hypothesis that the issue in both suits is the same, for it is evident it can not be sustained on any other ground. If in fact and in law the issue was the same in both suits, the court’s ruling was clearly correct, for no principle is better settled than that where a question proper for judicial determination is directly put in issue, and finally determined in a legal proceeding by a court having competent authority and jurisdiction to hear and determine the same, such decision and determination of the question will be deemed final and conclusive upon the pa.rties and their privies in all future litigation between them in which the same question arises, so long as the judgment remains unreversed or is not otherwise set aside. For the purposes of this rule it is not sufficient that the question arising in subsequent litigation is identical with the one decided, in some respects, only,—it must be so in all respects. If, therefore, there is an element in one of the questions which is not contained in the other, the rule does not apply, for the obvious reason that this additional element may have been the turning point in the previous decision.

The question then recurs, is the proposition that Mrs. Umlauf lived separate and apart from her husband “without her fault,” identical with the proposition that “she willfully -deserted and absented herself from him without any reasonable cause?” We are of opinion they differ in several essential particulars. The element of willfulness contained in the latter proposition is clearly not to be found in the former. Nor do we regard the two expressions, “without fault,” and “without reasonable cause, ” either in a popular or legal sense, as equivalent terms. For illustration, if one enters the house of his neighbor and grossly insults him, and is thereupon ordered to leave, he certainly has cause for doing so; yet it can not be truthfully affirmed that his being compelled to leave was without his fault. So the wife may have cause, in the misconduct of her husband, for living separate and apart from him; yet if such misconduct has been induced by a failure to perform her duties towards him, her living apart from him could not properly be said to be “without her fault, ” and hence in such case an action could not be maintained by her for separate maintenance. The statute authorizing actions for separate maintenance was adopted for the exclusive benefit of those whose conduct has not materially contributed to a disruption of the marital relations. If the wife, therefore, in bringing a suit of this kind, is not prepared to show that she is without fault, she will fail to bring herself within the statute, and must necessarily be defeated in her action. But such a defeat does not at all affect her common law rights. The only question it conclusively settles is, that her living apart from her husband was not without her fault. But does the establishment of this fact entitle the husband to a divorce, without regard to his own treatment of her? In the separate maintenance suit, his conduct wras involved ■ in a subordinate degree only. It related to but one branch of the case, which she was bound to establish in order to .recover, namely, that she had cause for living apart from her husband. But this was not sufficient. She had to go one step further, and show that such living apart from her husband was without fault on her part. For aught that appears the jury may have found -against her in that suit solely on the ground she was partly in fault. To demonstrate- the unsoundness of the position, suppose a husband and wife mutually drift into a quarrel, and- that after the wife has greatly provoked the husband, and offered him many indignities, he turns upon her and cruelly beats and drives her aw-ay from his home, telling her if she ever returns he will take her life, and that he never thereafter relents or invites her back; or, to make the case stronger, perhaps, suppose they quarrel, and mutually agree to live apart, and accordingly do so; Under these circumstances she files a bill against him for a separate maintenance, and of course fails, her suit, as in this case, having been protracted two years. The husband thereupon files a bill against her for a divorce, and relies upon the decree dismissing her bill, as is the case here, to establish his right to a divorce. Would it not be a travesty on legal justice to permit him to succeed, under the circumstances supposed ? And yet, in principle, we perceive no difference in the case suggested and the one before us. If, in either of the cases supposed, the'husband had 'first brought his action for divorce, all will concede that on proof of the facts stated he would have been defeated and his bill dismissed. But it would seem, according to the theory of appellee, because the wife happened to bring her suit for separate maintenance first; and was unsuccessful, by some mysterious logic the record of her defeat is converted into ineontestible proof of his right to a decree. Suppose appellee had brought his suit for a divorce first, and had been unsuccessful, would the record of the dismissal of his bill have been conclusive evidence of his wife’s right to maintain a suit against him for separate maintenance ? It certainly would, if the position of appellee is. correct.

The question now under consideration is not a new one in this court. In Wahle v. Wahle, 71 Ill. 510, it was directly presented, though from a different aspect. In that case Wahle sued his wife for a divorce, alleging desertion by her without reasonable cause. Upon answering, the wife filed a cross-bill for separate maintenance, under which she was bound to prove, as is the case here, that her living separate from her husband was without her fault. The court, on the hearing, rendered a decree dismissing the original bill, the jury having found the issues against the complainant, and it was contended by the wife that the record of that decree was conclusive evidence of her right to maintain her cross-bill for maintenance, and in answering this* position it was there said: “Is, then, the record of. a judgment finding the issues against a complainant who seeks a divorce on the ground of abandonment, conclusive evidence in favor of the defendant’s right to recover" maintenance ? Does such a record conclusively prove that she is living apart from her husband without her fault? It can not be pretended that the object of the bills and the relief sought is in each case the same. Nor will the same evidence necessarily determine both cases. To sustain the bill for divorce, the proof must show that the abandonment was without the fault of the complainant, that it was willful, and that it was continuous for the period of two years. If, therefore, the abandonment was for less than two years, if it was by mutual consent, or if it was induced by the acts of the complainant, whatever may have been the fault of the defendant, the verdict would necessarily have to be for the defendant. To sustain the bill for maintenance, the proof must show that the complainant lives separate and apart from her husband without her fault. If, therefore, she voluntarily abandoned him, if she was compelled to abandon him on account of her adultery or her wicked conduct, the verdict would necessarily have to be against her. Proof of fault in one is not evidence of correct deportment in the other. Nor does it follow, because one is unable to maintain an action, the other must necessarily be entitled to recover. ”

All that was said in that case, so far as the present question is concerned, is equally applicable to this. The only difference between them is, that the position of the parties is reversed in this. Here the husband relies on the supposed estoppel; there it was invoked by the wife. The difference is inconsequential. Nor is it material that the matter set up in the two bills for maintenance is not precisely the same, for, as already shown, in all such cases the complainant must not only show cause for living separate from her husband, but also that she is “without fault.”

It follows from what we have said, the Superior Court erred in holding that the record of the proceedings in the former case conclusively establishes the charge of willful desertion without .cause in this, and also in not permitting appellant to prove appellee’s conduct prior to and subsequent to the separation.

The judgments of the Appellate and Superior Courts will be reversed, and the cause remanded to the Superior Court for further proceedings not inconsistent with this opinion.

Judgment reversed.

Craig and Sheldon, JJ., dissenting.


author: Mr. Justice Scott

text:
    The People ex rel. Eli Frank v. Richard Prendergast, County Judge.

      Filed at Ottawa May 15, 1886.

    1. Appeal — final judgment — what so regarded, so as to give the right of appeal. After a composition agreement was entered into between an insolvent debtor and his creditors, to discontinue an assignment proceed-lug and have the assignee turn over the moneys and effects in his hands to an aSen* the creditors, a question arose between such agent and the assignee, whether a note taken by the assignee had been accepted by the agent, which the county court found against the assignee, and ordered him to pay over the amount of such note by tep o’clock the next day: Held, that such order of the county court was a final judgment, from which an appeal was given by statute, to the circuit court.
    2. The manner of enforcing an order for the unconditional payment of money within a limited time, whether by execution, or attachment for disobedience, does not affect its character in respect to being final and subject to an appeal.
    3. Same—effect of an appeal as a supersedeas. Where a party is committed to jail for a contempt of court for refusing to comply with an order of the county court, the perfecting of an appeal from the order disobeyed will of itself suspend all proceedings under the order of commitment, and there will be no necessity to appeal from it.

      i. Same—mandamus to compel allowance of appeal. Where the county court refuses to allow an appeal from its order, decree or judgment, in a case where one is given by law, this court will compel the county judge to allow the same, on the terms and conditions specified in the statute giving the right.
    This was an original proceeding in this court, in behalf of Eli Frank, the relator, against Richard Prendergast, county judge of Cook county, to compel him to allow an appeal from an order made by him on the relator. The material facts appear in the opinion.
    Mr. George W. Smith, for the relator:
    The section of the Probate Court act is taken from, and is substantially the same as, the section of the County Court act, which gives the right of appeal, and this court has construed that section of the Probate act in Ennis v. Ennis, 103 Ill. 95.
    The language of the opinion in the case of Haines v. People, 97 Ill. 161, had reference to the Revised Statutes, chap. 3, see. 114.
    A writ of error did not lie from the circuit court, because the latter court could not sit to review the proceedings of the county court. The trial in the circuit court should be de novo. Nor did the common law writ of certiorari lie, and the statute gives no such writ. Scales v. Railway Co. 104 Ill. 93.
    A certificate of evidence or bill of exceptions may be signed and filed at a term subsequent to the hearing or trial, irrespective of whether time has been prayed and obtained. The power exists to allow it. Buckmaster v. Beames, 4 Gilm. 443; Railroad Co. v. McMillan, 84 Illl. 208; People v. Williams, 91 id. 87.
    This was a case of equitable cognizance. Brandon v. Brown, 106 Ill. 519.

      It has been held that the court may, at a subsequent term, amend its records, so as to cause them to correspond with the true state of the proceedings. The power to incorporate in the record a certificate of evidence, is similar to that which allows an amendment to be made, or, rather, the exercise of the power in one case is no more a stretch of prerogative than it is in the other. The suing out of a writ of error, and making a supersedeas, is no obstacle to amendment. Dunham v. South Park Comrs. 87 Ill. 135.
    The court may be justified in refusing to sign a certificate of evidence or bill of exceptions under some circumstances, but not for want of power. People v. Jameson, 40 Ill. 93; People v. Blades, 104 id. 591; People v. Gary, 105 id. 264; Railway Co. v. People, 106 id. 652.
    No term has lapsed in the present instance. Rev. Stat. chap. 10, sec. 14; Wallace v. Gatchell, 106 Ill. 315.

      Mandamus is the proper remedy to compel the allowance of an appeal. Wood on Mandamus, 20, and cases cited; Ex parte Martin, 5 Ark. 371; Beebe, Admr. v. Lockert, 6 id. 422; Ex parte Cutting, 94 U. S. 14; Ex parte Jordan, id. 248; Ex parte Railroad Co. 95 id. 221; High on Ex. Leg. Rem. (2d ed. 1884,) where the language of the first edition is revised.
    Messrs. Moses, Newman & Reed, for the respondent:
    At common law, all superior courts are the sole judges of contempts against their authority, and their decisions are not reviewable by appeal, unless an appeal is specially authorized by statute. Repalje on Contempts, p. 198; New Orleans v. Steamship Co. 20 Wall. 387.
    A proceeding for a contempt is in the nature of a criminal proceeding. Clark v. People, Breese, 226; Williamson’s case, 26 Pa. St. 24; Ex parte Kearney, 7 Wheat. 41.
    The alternative prayer of the petition, that the respondent be commanded to sign a certificate of evidence after the term had elapsed at which the exceptions were taken, without ob-taming consent of counsel or an entry of record granting further time, is destitute of merit. Railroad Co. v. People, 106 Ill. 652; Burst v. Wayne, 13 id. 664.
    The remedy by mandamus rests largely in the discretion of the courts. People v. Johnson, 100 Ill. 537; People v. Davis, 93 id. 133; People v. Village of Crotty, id. 180.
    The party seeking the writ must show a clear right to it. People v. Trustees of Schools, 86 Ill. 613.
    The laches of a party always affords sufficient grounds for refusing the writ. High on Ex. Leg. Rem. secs. 204, 269; Midbury v. Collins, 9 Johns. 245.
   Mr. Justice Scott

delivered the opinion of the Court:

This is an original proceeding, commenced in this court in the name of the People, on the relation of Eli Frank, for a writ of mandamus, to compel- Richard Prendergast, as Judge of the county court of Cook county, to grant appeals from certain orders entered in that court against relator on the 5th and 6th days of December, 1884, by which relator, who was the- assignee of Graff, Abramson & Co., was, on the 5th day of December, in a certain proceeding then pending in the county court, “adjudged and decreed” to pay to-the parties appointed by the creditors of the insolvent estate to receive the same, a certain sum of money by ten o’clock on the next succeeding day, and on the 6th day of December he was ordered to be imprisoned in the common jail of the county for a non-compliance with the order and judgment of the court pronounced against him on the previous day.- The petition for the writ sets forth the several orders and proceedings, and the judgments of the court below, from which appeals were prayed, all of which are admitted by the answer, substantially, as therein stated. The petition contains the further prayer, that'in case this court shall be of the opinion that appeals will not lie from the orders complained of, to the circuit court of Cook county, then the respondent be commanded to sign, seal and allow a certificate of evidence in the matters referred to, if the same should be presented by the relator and found to conform to the facts.

If it shall be determined an appeal will lie from either order or decree of the county court, as set forth in the petition, to the circuit court, under the statute, a trial de novo in the latter court would take place, and in that event it will not he necessary to consider the alternative relief asked for in the petition.

Chapter 37, entitled “Courts,” of Cothran’s edition of 1883 of the statutes, contains the following sections in regard to appeals from final orders-, judgments and decrees of county courts:

“212. Appeals may be taken from the final orders, judgments and decrees of the county courts to the circuit courts of their respective counties, in all matters except as provided in the following section, upon the appellant giving bond and security, in such amount and upon such conditions, as the court shall approve, except as otherwise provided by law. Upon such appeal the case shall be tried de novo.

“213. Appeals and writs of error may be taken and prosecuted from the final orders, judgments and decrees of the county court to the Supreme Court or Appellate Court, in proceedings for the confirmation of special assessments, in proceedings for the sale of lands for taxes and special assessments, and in all common law and attachment cases, and in cases of forcible detainer, and forcible entry and detainer. Such appeals, and writs of error shall, when not otherwise provided, be taken and prosecuted in the same manner as appeals from and writs of error to circuit courts.”

One question that necessarily arises, is, whether either of the orders or judgments rendered against relator by the county court was a final order or judgment, in the sense those terms are used in the statute, and from which an appeal will lie to the circuit court. It will therefore be necessary to a proper understanding of the question made, to ascertain what was in controversy between the parties, and what was decided by the court.

It appears the relator was assignee of the insolvent estate of Graff, Abramson & Co., and had entered upon the duties of the trust imposed, under direction and supervision of the county court. While such proceedings were pending, it seems a composition agreement was entered into between the insolvent debtors and their creditors, by which it was agreed, among other things, to discontinue the assignment proceedings, and that Moses & Newman, as the attorneys for the creditors, should receive from the relator all moneys and property in his hands, as such assignee, belonging to the estate of the debtors. On that agreement being submitted to the county court, an order was entered, perhaps on the 8th day of September, 1884, discontinuing the insolvent proceedings, but retaining jurisdiction over the assignee until he should make due delivery of the assigned property in his hands and control, to Moses & Newman, to whom such property was to be transferred, as directed by the debtors and assenting creditors. Shortly after the assignment proceedings had been discontinued, the relator, as such assignee, made a report, as he was directed by the court to do, of the moneys and property in his hands- and under his control, and to which it does not appear any objections were taken by any one. On the 15th day of September, 1884, the relator delivered to Moses & Newman a certified check for $10,242.39, and one promissory note made by B. J. Ettelsohn to the order of relator, as assignee, for $2387.95, and guaranteed by relator, and also a warehouse receipt for twenty-two eases of goods, for all of which he took the receipt of Moses & Newman, of that date. Should it be ascertained the note of Ettelsohn for $2387.95 was taken by Moses & Newman as so much money, then the amount paid would be in full of all that was in the hands or under the control of the relator, as assignee of the insolvents’ estate. But a contention arose as to how the note was taken, and afterwards Moses & Newman, by petition, represented to the court they had not received the Bttelsohn note for $2387.95 in discharge for so much money due from the assignee, but that they had re- • ceived it temporarily, with his guaranty upon it, and that relator would, in a short time, pay the deficiency represented by the amount of the note, in money. To the petition of Moses & Newman, stating these and other facts with more fullness as to how the note was received by them, relator filed his answer, in which he represented the note in question was made to him, as such assignee, for a part of the purchase price of the stock of goods of the insolvent debtors, which was purchased by Bttelsohn at sixty per cent of the valuation theretofore fixed, by direction of the court. Other facts are stated by relator in • his answer, which he insists constituted a 'full and complete defence to the matters alleged against him in the petition, and relieved him from any obligation to take the note back from Moses & Newman, and pay them instead thereof the amount of money represented by the note. It will not be necessary to state more particularly the facts relied upon as a sufficient defence to the petition. It is enough for the purposes of the present decision, that the matters in relation to the note were in contention between the parties. The court, on the hearing of the case, as made by the petition and answer of relator, and upon the evidence introduced, found that the delivery by the assignee, of the promissory note to Moses & Newman, was not a discharge of his obligation, as such assignee, to pay over to Moses & Newman the funds of the estate in his hands, as assignee, as ordered by the court, and "that the note was not accepted by Moses & Newman as payment by such assignee, and the court further finds that such note is now, and since the filing of the petition of October 3, 1884, has been, in the control of the court, for the use of relator, as his property. It is therefore ordered, considered, and adjudged and decreed by the court, that said Eli Frank, assignee as aforesaid, pay to said Moses & Newman the said sum of $2387.95, being the balance of the cash assets of said estate now in his hands, at or before the hour of ten o’clock in the forenoon of Saturday, the 6th day of December, 1884.

This is the order and decree of the court made on the 5th day of December, from which an appeal was prayed by relator, and which was refused by the court. It is difficult to understand how this can be regarded otherwise than as a final order and decree of the court, from which an appeal is expressly given by the statute, to the circuit court. It was a definitive adjudication of matters in dispute between the petitioners and respondent, in a cause pending in court concerning property interests. In that proceeding, relator was “adjudged and decreed by the court” to pay to petitioners in that cause the sum of $2387.95, by a certain date fixed by the order of the court. No element of a final decree is wanting in the case. The decree is absolute, and requires the unconditional payment by relator, within a short time fixed, to petitioners, the amount of money found due from him. That is as much a final judgment as if the court had awarded execution for its collection. The manner of enforcing payment, whether by execution or by attachment for disobedience to the judgment and decree of the court, does not affect the character of the decree. Whether enforced in one way or the other, it is none the less a final decree. Not the slightest doubt is entertained that an appeal would lie from the order of the county court, made on the 5th day of December, wherein the relator was “adjudged and decreed by the court” to pay petitioners in that cause the sum of $2387.95, and the court should have allowed relator’s motion for an appeal, on the terms and conditions specified in the statute.

■ Whether an appeal would lie, under the statute, from the order of the court made on the 6th day of December, committing the relator as for contempt of court for the noncompliance with its decree made on the 5th day of December, need not now he considered. Had the appeal been allowed, as it should have been, from the decree rendered on the 5th of December, and had the same been perfected by giving such bond as the court might have regarded as sufficient, which, no doubt, would have been done at once, that would have suspended all further proceedings in the cause, and no order could therefore have been made committing relator for a non-compliance with the decree of the court, until after the determination of the appeal. So now, when the appeal shall be allowed and perfected, under the statute, from the decree of the court made on the 5th of December, 1884, that of itself will suspend all further proceedings under the order committing relator, made on the 6th of December, 1884, and it is a matter of no consequence whether relator can have an appeal from the latter order or not,

A writ of mandamus will be ordered, commanding respondent to grant relator an appeal from the order and decree rendered against him in the county court on the 5th day of December, 1884, on the terms and conditions specified in the statute in such cases made and provided.

Writ ordered,.

Craig and Shope, JJ., dissenting.