author: Mr. Justice Craig

text:
    Mary L. Gorham et al. v. Hannah R. Dodge.

      Filed at Ottawa November 11, 1887.

    1. Statute of Fraud s—p arol agreement to convey land—performance ía^6 a case owi °f ®'6 statute. In case of a parol purchase of land, where *ke purchase money has been paid, possession given to the purchaser, and he enters under the contract, and makes lasting and valuable improvements, a specific performance will be enforced, although the Statute of Frauds may he pleaded.
    2. Same—taking possession, as an element in performance. Full payment of the purchase money for real estate verbally agreed to be conveyed, is not, of itself, sufficient to take the agreement out of the Statute of Frauds. Possession must also be taken under the contract.
    3. An aged mother offered to give her daughter her homestead if the latter would come there and live with her as long as she lived, the mother to furnish the home, provide for the house, and bear all the expenses, so that the daughter should be at none whatever. Under this offer they both went to the homestead, where they lived until the mother’s death, the daughter paying no taxes and making no improvements: Field, that the daughter did not thereby acquire possession of the property, during the mother’s life, so as to take the case out of the Statute of Frauds.
    4. Specific performance — of the performance by complainant. A mother, of advanced years and in feeble health, made a verbal agreement, in May, with her daughter, to give her a house and lot at the death of the former if the latter would come to her house and live with her until her death, and care for her. The daughter did nothing until in October, and during the last sickness of the mother, in January, following, absented herself for two weeks and three days before the mother’s death, leaving no one to take care of her, and her son, on being notified of the fact, employed a nurse for her: Held, that this was not such a performance of the contract on the part of the daughter, as would call upon a court of equity to enforce it.
    5. Wrro—taking under devise, as an estoppel to question any part of the will. It is a well settled rule in equity, that a person, by taking any bene- . ficial interest under a will, is thereby held to confirm and ratify every other part of the will,—or, in other words, he shall not take any beneficial interest under a will, and at the same time set up any right or claim of his own, even if otherwise legal and well founded, which shall defeat or in any way prevent the full effect and operation of any part of the will.

      6. So where a testatrix bequeathed to her daughter $700, and devised her homestead to her son, and the daughter accepted the bequest to her, it was held, that the latter was thereby estopped from enforcing the specific performance of a parol agreement of the testatrix to give the homestead to the daughter on the death of the former. Having elected to take under the will, the daughter could not set up a claim which would defeat the devise to the son.
    Appeal from the Circuit Court of Kane county; the Hon. Isaac G. Wilson, Judge, presiding.
    Mr. J. W. Kanstead, for the appellants:
    A specific performance will not be decreed except upon clear proof. Carver v. Lasater, 36 Ill. 182; Gosse v. Jones, 73 id. 508; Langston v. Bates, 84 id. 524; Allen v. Webb, 64 id. 342; Wallace v. Rappleye, 103 id. 229.
    The complainant failed to perform the alleged contract on her part. The performance was not such as to invoke the aid of a court of equity.
    To take a case out of the Statute of Frauds, it is necessary to show a part performance,—that is, an act referring to and resulting from the agreement, and such that the party would suffer an injury amounting to a fraud by the refusal to execute the contract. Frame v. Dawson, 14 Ves. 387; Glass v. Hulbert, 102 Mass. 24; Wallace v. Rappleye, 102 Ill. 229.
    The person to whom a verbal promise to convey land has been made, stands in the nature of a purchaser, and, like any other purchaser, must prove the contract; that the land was clearly designated; that open, notorious and exclusive possession was taken and maintained under the contract, and that improvements were made on the faith of the promise. Moore v. Small, 19 Pa. St. 461.
    Possession must be exclusive, and not jointly with the vendor. Frye v. Shepler, 7 Pa. St. 93.
    The rule seems to be settled, that where the acts done can be compensated by damages, recoverable in an action at law, no performance will be decreed. Parkhurst v. Van Courtland, 1 Johns. 284; Frame v. Dawson, 14 Ves. 387.
    There is no pretense in this ease that any improvements-were made or any money expended on the property by the complainant.
    We contend that the complainant had the right of election whether she would rely on her pretended contract with her mother for the conveyance of the homestead, or whether she would take this bequest under her mother’s will. She did take-the bequest. We claim that by this election she is estopped from claiming anything other or additional from her mother or representatives. Wilbanks v. Wilbanks, 18 Ill. 17; 2 Williams on Executors, 1441; Hyde v. Baldwin, 17 Pick. 303.
    Mr. W. E. S. Hunter, for the appellee:
    The Statute of Frauds presents no defence, as complainant took possession under the contract, and paid the full consideration she agreed to pay, or, in other words, fully performed her part of the contract. Warren v. Warren, 105 Ill. 568 Smith v. Yocum, 110 id. 142; McDowell v. Lucas, 97 id. 489; McClure v. Otrich, 118 id. 320; Bright v. Bright, 41 id. 97; Kurtz v. Hibner, 55 id. 514.
    The bequest and the purchase are not inconsistent with each other. The will, after providing for the payment of debts and the legacy, gave all the residue of the testatrix’ estate to her son. Having disposed of the lot in her lifetime, it did not-pass by the will.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by Hannah E. Dodge, to' enforce the specific performance of a parol agreement alleged to have been made between the complainant and her mother, Sarah Gorham, in 1882, under which it is claimed that complainant agreed to reside with and take care of her mother during her natural life, on certain premises in the city of St. Charles, and in consideration of such services the mother-agreed to convey the property to complainant. William J„ Gorham, and other heirs-at-law of Sarah Gorham, deceased, were made parties defendant to the bill, but before the hearing William J. Gorham died, and his administratrix and heir-at-law were made parties defendant. William J. Gorham, in. his lifetime, and his heirs, after his death, put in answers to-the bill. ' In the answers, the contract relied upon by complainant is denied, the Statute of Frauds is pleaded, and in addition it is set up, that on the 20th day of April, 1881, the said Sarah Gorham made and executed a last will and testament; that in March, 1883, said will was duly admitted to probate in said Kane county, in and by which said testatrix, among other legacies, gave and bequeathed to the said Hannah E. Dodge the sum of $700, and devised to said William J. Gorham the premises in controversy in this suit, and that afterwards he took out letters of administration on said estate, and paid all debts and legacies, and, among others, a legacy of $700, and interest, to said complainant, and reported the same to said county court, and was duly discharged, and the-estate was declared settled; and she avers that by reason of the will, and legacy of $700 and interest, and the acceptance-of said legacy by the complainant, she has elected to accept, said will, and her legacy thereunder, in lieu of all other rights, if any, and that in equity she is now estopped from claiming; and setting up title to said property by reason of any agreement for the sale and conveyance between her and the said Gorham, as set forth in said bill of complaint. On the hearing, on the pleadings and evidence, the court rendered a decree in favor of the complainant.

The evidence in reference to the contract is quite brief, and is that of one witness, Sarah H. Dodge, and was substantially as follows: “I live at Gardner, Illinois. Am a grand-daughter of Sarah Gorham and a daughter of complainant. Sarah. Gorham died in January. I saw her in May previous, at William Gorham’s, in Du Page county, and that was the last time I saw her before her death. I had a talk with her in reference to letting Hannah Dodge have the property in St. Charles. I was at St. Charles, and went to see grandmother. She asked me to room with her. After we went to her room, she commenced talking about her private affairs, and said she was not satisfied with her present home, and wanted to go back to St. Charles; said she was too old to live there alone, and would give the place to me or my mother if we would come there and live with her, and all the things she had there with her. If we would not come she would give it to some stranger, and that was to be the consideration,—she was to live with her as long as she lived, but they must agree to stay with her. I told her I thought mother would come and stay with her. I asked her at the time if she did not think it would be better to stay where she was, and she said no,—she would go there, and if I or my mother would not come, she would get some stranger. I said we .had some work to do at home, and asked her if she could stay there some eight or ten days until we could rent the place. She did not want me to tell any one until I had spoken to my mother, and if mother would come she was to- write to her not to have her say anything about the bargain. I went into Chicago, and from thence I went hqme and told my mother about this matter. I told mother what grandmother said, and she, after thinking it over, said she would go.”

On cross-examination, the witness testified: “She told me she had $400 with which to commence housekeeping; that she would provide for the house and be to all expenses, and mother was to be at no expense whatever. I understood from my grandmother, who was then eighty-two years old, that if mother would go and live with her she would pay her board and all the expenses of the house, and as soon as she died mother would have the property. It was about the last of May or the first of June that I had this conversation with my. grandmother. Mother went there in the last of September or first part of October, and grandmother died the next January.”

The Statute of Frauds having been set up in the answer, the first question to be considered is, whether anything was proven which will take the case out of the operation of the statute. It is conceded that there is no memorandum in writing of the contract, but it is claimed that-there has been a performance of the contract, and such performance is sufficient to take the agreement out of the operation of the Statute of Frauds.

This court has held, in a number of cases, and the law may be regarded as well settled, that in a case of a parol purchase of lands, where the purchase money has been paid, possession surrendered to the purchaser, and he enters under the contract and has made lasting and valuable improvements, a specific performance will be enforced, although the Statute of Frauds may be pleaded. (Temple v. Johnson, 71 Ill. 14.) But the case under consideration does not fall within the rule indicated. No money was paid, no improvements were made on the property, and, in our judgment, the evidence fails to show possession, by the complainant. The property, as disclosed by the evidence, had been formerly occupied by Sarah Gorham as a homestead. She had left it for a time and was residing with her son. Becoming dissatisfied, she made up her mind to return to the homestead in St. Charles, the property in question. She desired the complainant to reside with her on the property, and if she would not accept, she declared the intention to get a stranger. The offer made complainant, as shown by the only witness to the contract which complainant accepted, was as follows: “She (Mrs. Gorham) said she was too old to live there (on property in question) alone, and would give the place to me or my mother if we would come there and live with her. She was to live with her as long as she lived.” But this was not all. The witness further testified that Mrs. Gorham had $400 with which to commence housekeeping; that she was to furnish the house, provide for the home, be at all expenses, and complainant was to be at no expense whatever. These are the circumstances under which Mrs. Gorham returned to ■ her property, and under which she and the complainant resided there together, and, in our judgment, it is a clear-proposition that complainant acquired no possession of the property while Mrs. Gorham lived. She was there as a mere employe while the mother occupied the property. She had no duty to perform except to take care of her mother. She asserted no ownership of the property, she made no repairs, paid no taxes, indeed she did nothing to indicate a possession or ownership of the property.

Should it be conceded that the complainant paid the pur-' okase money,—or, what may be regarded as an equivalent, performed the labor agreed upon for her mother,—she could not recover, because, as held in the case cited supra, full payment of the purchase money for real estate verbally agreed to be conveyed, is not, of itself, sufficient to take the agreement out of the Statute of Frauds,—possession of the property must also be taken under the contract. But we are not satisfied, from the evidence, that the complainant performed the contract as was agreed upon. The evidence shows that the arrangement was that complainant should go and live with her mother during the lifetime of the mother,—that she was to take care of the old lady. This arrangement was made in May, under the expectation that within two or three weeks complainant would enter upon the performance of the contract; and yet she did nothing until October. But this is not so important. During the last sickness of Sarah Gorham the complainant absented herself, as the evidence shows, for two weeks and three days, leaving no person to care for the old lady, who was then unable, from advanced age and poor health, to care for herself, and the son being notified of the fact, employed a nurse to go to the house and care for the old lady. This was not such a performance of the contract as would call upon a court of equity to enforce it. The sole object of the contract was, that Mrs. Gorham, advanced in years as she was, should have the constant services of the complainant, and at no time was it more important that those services should be given than in the last sickness.

There was also another defence interposed, which was sufficient to defeat a decree. It was proven on the hearing that Sarah Gorham, on the 20th day of April, 1881, executed a will, which was admitted to probate in the county court of Kane ■county, in March, 1883. By the will the testatrix béqueathed to complainant $700, and to William J. Gorham she devised the property in controversy. William J. Gorham was named as executor in the will. He qualified as such, paid all debts, and the legacy of $700 to the complainant. After the expiration of two years he rendered an account to the county court, which was approved, and the estate was declared settled, and the executor discharged. The complainant having elected to take under the will of Sarah Gorham, can she set up a claim which will defeat some other provision of the will ? The law is well settled that she can not. (Wilbanks v. Wilbanks, 18 Ill. 17; Thelenson v. Woodford, 13 Ves. 210; 2 Williams on Executors, 1441; Hyde v. Baldwin, 17 Pick. 303.) In the last case cited, the rule is clearly stated by Chief Justice Shaw, as follows: “It is now a well settled rule in equity, that if any person shall take any beneficial interest under a will, he shall be held thereby to confirm and ratify every other part of the will,—or, in other words, a man shall not take any beneficial interest under a will, and at the same time set up any right or claim of his own, even if otherwise legal and well founded, which shall defeat or in any way prevent the full effect and ■operation of every part of the will.” Here, the property in question was specifically devised by Sarah Gorham, as her own property, to William J. Gorham. When this fact became known to complainant, she was bound to elect whether she would rely upon her title to the property under the contract she claimed from the testatrix, or whether she would abandon "that title and take the devise made for her benefit under the will. She could not take under the will, and at the same time undertake to defeat that provision of the will wherein the property in question was devised to William J. Gorham. She chose to accept under the will, and having done so, she is bound by that provision devising the property in question to William J. Gorham.

The decree of the circuit court will be reversed, and the cause remanded, with directions to dismiss complainant’s bill.

Decree reversed.


source: Caselaw Access Project

author: Mr. Justice Shope

license: Public Domain

text:
    Charles L. Bonney v. Mary E. Stoughton et al.

      Filed at Ottawa November 11, 1887.

    1. Limitation—as to the matter of accownting. An action of account at law, and a bill in equity for an account, must be brought within five years from the time the right of action accrues, which, in the case of a partnership, is upon the dissolution of the same.
    2. On May 21, 1879, a partnership between A and B was by mutual consent dissolved, and there was an attempt to settle the partnership account which A believed was settled, showing a balance due him. B died December 18, 1881, and A filed his claim for the sum he insisted was found due him on the alleged settlement. On March 1, 1883, the claim was rejected, on the ground there had not been any adjustment of the partnership account, and this judgment was affirmed by the circuit court on November 2, 1884, —about a year and nine months after A’s appeal. On January 20, 1885, he filed his bill against B’s personal representative for an accounting, to which the Statute of Limitations was pleaded. No fraud of any kind was practiced on A: Held, that the statute was a bar to the relief sought by the bill.
    3. Same—of intervening disability. When the Statute of Limitations begins to run it will not be arrested by any subsequent disability, unless expressly so provided in the statute. The death of a debtor will not stop the running of the statute.

      4. Same—non-suit—as a suspension of the statute. The clause of the Limitation law which provides that when, during the pendency of a suit, the statutory period of limitation passes, and the plaintiff is afterward non-suited, he may sue again in one year from the time of such non-suit, has no application to a case where judgment is rendered in bar of the plaintiff’s suit, even though he had not pursued his proper remedy in the action.
    5. Mistake—proper diligence required. In the absence of fraud or concealment, before a court of equity will interfere because of the mistake of a party, even as to a matter of fact, the mistake must be such as the exercise of ordinary diligence would not have prevented. If he seeks to be relieved from the effect of his laches and neglect to ascertain his rights before the Statute of Limitations has barred him, he should show that his mistake as to his rights and remedy was without negligence on his part.
    6. Same—mistake as to the law. While mistake is an independent head of equity jurisdiction, it has been repeatedly held that a mistake or misapprehension of the law will not entitle the party to relief. To this rule there are exceptions, comprising a large class of cases, where a person has acted in respect of his property or estate under a misapprehension of his existing legal right or liability.
    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.
    Mr. C. C. Bonnet, for the appellant:
    A court of equity will grant relief in case of a misapprehension of a party’s rights, when to refuse it would give the other party an unconscionable advantage. 1 Story’s Eq. Jur. secs. 138 c, 138 f, 138 g, 138 i; Kerr on Fraud and Mistake, 396, 398, 400; Bispham’s Principles of Equity, 240, 243.
    In the following cases of mistake it was admitted by the defendant that a certain sum was due the plaintiff, but that relief was barred by limitation. The relief was nevertheless granted. Chapman v. County Commissioners, 107 U. S. 348; Henry County v. Winnebago County, 52 Ill. 300; United States v. Thompson, 98 U. S. 486; McIntosh v. Saunders, 68 Ill. 128.
    Belief was also granted in the following cases of mistake: Metcalf v. Williams, 104 U. S. 95; Snell v. Insurance Co. 98 id. 90; Pool v. Docker, 92 Ill. 509; McKelway v. Armour, 2 Stockt. (N. J.) 115; Beardsley v. Knight, 4 Vt. 481; 10 id. 190; Jones v. Munroe, 32 Ga. 188; King v. Doolittle, 1 Head. (Tenn.) 85; Harrell v. DeNormandie, 24 Tex. 125; Trick v. Fulton, 3 Gratt. 196; Wheleris Appeal, 70 Pa. St. 425; Cook v. Sumner County, 1 Sneed, 716; Evans v. Strode, 11 Ohio St. 480; Harney v. Charles, 45 Mo. 159.
    In cases of mistake the statute dates from the discovery. Story’s'Eq. (12th ed.) sec. 1521a; Brown v. County of Buena Vista, 95 U. S. 158; Brookshank v. Smith, 2 Y. & Coll. 68; McIntosh v. Saunders, 68 Ill. 128; Bond v. Hopkins, 1 Sch. & Lefroy, 428.
    It is inequitable to permit appellee to repudiate the settlement, and to keep the sum she admits to be due on such settlement. Louisiana v. Wood, 102 U. S. 295; Maple v. Kussart, 52 Pa. St. 352; Parsleys. Hays, 17 Iowa, 312; Deford v. Murcer, 24 id. 118; Chilton v. Braidner, 2 Black, 461 ; Greenman v. Greenman, 107 Ill. 411.
    Messrs. Page & Booth, for the appellees:
    A bill in equity for a partnership accounting is within the bar of the Statute of Limitations. Quayle v. Guild, 91 Ill. 378; Hancock v. Harper, 86 id. 453 ; Sloan v. Graham, 85 id. 30; Pierce v. McClellan, 93 id. 246; Wright v. Le Clair, 3 Iowa, 221; Story’s Eq. Jur. sec. 529; Collyer on Partnership, sec. 374.
    No such mistake is alleged as will give the court of equity jurisdiction to take the case out of the statute. Story’s Eq. Jur. sec. 151; Railroad Co. v. Bridges, 7 B. Mon. 561; McIntosh v. Saunders, 68 Ill. 128; Brookshank v. Smith, 2 Y. & Coll. 58; Crane v. Prather, 4 J. J. Marsh. 76; Story’s Eq. Jur. sec. 1521 a.
    Mere ignorance of rights, without fraud or misrepresentation of the adverse party, is no bar to the running of the statute, either at law or in equity. Conner v. Goodman, 104 Ill. 365; Bossard v. White, 9 Rich. Eq. (S. C.) 499; Underhill v. Insurance Co. 67 Ala. 45; Campbell v. Long, 20 Iowa, 382; Reed v. Minell, 30 Ala. 61; Bank of Hartford v. Waterman, 26 Conn. 330.
    To avoid the statute it is incumhent upon the complainant to show by his bill, both the existence of such a mistake as will give the court jurisdiction, and also that he could not have discovered the mistake, by the use of reasonable diligence, in time to bring himself within the statute. Carr v. Hilton, 1 Curtis, 390; Farnham v. Brooks, 9 Pick. 246; Wood v. Carpenter, 11 Otto, 143; Buckner v. Calcote, 28 Miss. 596; Stearns v. Page, 7. How. 829; Bremond v. McLean, 45 Tex. 19 ; Connoly v. Hammond, 58 id. 11; Conner v. Goodman, 104 Ill. 365.
    By prosecuting his claim as a claim for moneys advanced to Crowell individually, in the probate and circuit courts, the appellant’s assignee has estopped himself from settling up and ■claiming that his claim is for an unsettled amount due upon partnership accounting. Bigelow on Estoppel, 578, and cases cited; Denton v. Irwin, 5 La. Ann. 18; Gridley v. Connor, 4 id. 416; Sprigg v. Bank of Mt. Pleasant, 10 Pet. 265; Newington v. Levy, Law Rep. (5 C. P.) 607.
   Mr. Justice Shope

delivered the opinion of the Court:

This bill, filed by appellant, Bonney, assignee of Edward G-. Bowzer, seeks an accounting in respect to the partnership affairs of the late firm of C. H. Crowell & Co., of which Charles H. Crowell and said Edward Gr. Bowzer were the co-partners.

It is alleged in the bill, that the co-partnership theretofore ■existing between Crowell and Bowzer “was terminated and ended by the mutual acts, consent and acquiescence of both parties,” on the 21st day of May, 1879. It is also alleged, that there was an attempt at accounting between the co-partners, and that Bowzer, in good faith, believed there was a settlement of the partnership affairs, in which it was agreed there was due Mm from Crowell $1230.06. There is no allegation in the bill that the eo-partnersMp existed for any purpose after that date, but on the contrary, it is fairly inferable, from the allegations of the bill, that there was a final and complete dissolution of the co-partnership. It is not" material that we should now determine whether the balance due Bowzer was agreed upon or not. If it was, there bemg no extension of time of payment, it became immediately payable; and if not so agreed upon, immediately upon the dissolution of the firm either party might have brought an action against the other partner, and compelled the settlement and adjustment of their partnership affairs. Taking the charge in the bill as true,— that no such settlement or adjustment was, in fact, made,— Bowzer had the right, either by bill in chancery or by action of account, to proceed at once to adjust the partnership affairs between himself and Crowell.

The fifth clause of section 2, chapter 2, of the Revised Statutes, in force July 1,1874, is: “The action of account may be-sustained * * * by one or more co-partner or co-partners, against the other co-partner or co-partners, to settle and adjust, their co-partnership accounts and dealings.” It is manifest that in either event,—that is, whether there was an adjustment of the account or not,—the right of action in respect to tMs claim accrued upon dissolution of the co-partnership, May 21,1879. Upon the dissolution, all that remained to be done, as shown by the bill, was to adjust the account of the partners with each other. Whatever claim either had against the other was a, money demand, simply.

Section 15 of the Limitation act, (Starr & Curtis, 1552,) provides: “Actions on unwritten contracts, * * * and all civil actions not otherwise provided for, shall be commenced within five years next after the cause of action accrued.” No-limitation is specifically provided for the action of account, and the five years’ limitation therefore applies. Quayle et al. v. Guild, Admr. 91 Ill. 378.

This bill was filed January 20, 1885, more than five years after the cause of action accrued, and it is clear that the right of action at law was then barred, and it is, as said by this court in Hancock v. Harper, 86 Ill. 445, well settled, that where courts of law and equity have concurrent jurisdiction, a claim barred at law will be barred in equity. Courts of equity, says Justice Story, (1 Eq. Jur. sec. 529,) govern themselves by the same limitation as to entertaining bills for account, “as are prescribed by the Statute of Limitations, in regard to suits in courts of common law, in matters of account;” and “in so doing they do not act, in cases of this sort, so much upon the ground of analogy to the Statute of Limitations, as positively in obedience to such statute.” And this rule obtains on bills for account by one partner against another, as in other cases of bills for account. Quayle et al. v. Guild, Admr. supra, and authorities cited.

In the cases cited, of Hancock v. Harper, and the later case of Quayle et al. v. Guild, Admr., which was a bill filed for account between partners, and presenting the question now being considered, the authorities are reviewed, and the conclusion there reached disposes of the case at bar, unless some one or more of the matters set up in the bill will stop the running of the statute, or, in equity, should take the case out of its operation. It is insisted, with great earnestness, that the statute should commence only from November 2, 1884, when the circuit court rendered judgment against Bowzer on his appeal from the county court, for the reason that he, for the first time, then discovered and became “convinced” that he was mistaken in supposing that the occurrences of May 21,1819, between himself and Crowell, were an adjustment of the amount due him; or, at most, could not be held to have commenced to run until March 1, 1883, when the administrator of Crowell repudiated such supposed settlement. It is alleged that Bowzer, in good faith, believed there was an accounting between himself and Crowell, and the balance agreed upon in his favor, of $1230.06, and acted on that belief in presenting his claim, in the probate court against the estate of Crowell, and subsequently prosecuting his appeal to the circuit court.

It is apparent from what has preceded, that the statute commenced to run May 21, 1879, during the lifetime of Crowell, who died December 18, 1881,—substantially two years and seven months after the cause of action accrued. Where a. statute begins to run, it is not arrested by subsequent disability, unless expressly so provided in the statute. So the-death of a party debtor will not stop the running of the Statute-, of Limitations. Wood on Limitations, 10; Baker v. Brown, 18 Ill. 91; The People v. White, 11 id. 350; Shelburne, Exr. v. Robinson, 3 Gilm. 598.

The claim of Bowzer was filed in the probate court August. 21, 1882, eight months after Crowell’s decease, but was not brought on for hearing in the probate court until March 1,. 1883, over six months after its filing. The claim was then rejected by the probate court, and Bowzer appealed to the-circuit court, where it was finally heard November 2, 1884, about a year and nine months after the appeal. There is no attempt in the bill to account for these delays, or any of them, nor is it alleged that they were not at Bowzer’s instance or occasioned by his act or conduct.

It is to be remembered there is no allegation of misrepresentation, concealment or other fraudulent practices by any one, whereby, or in consequence of which, Bowzer was misled,, either as to his rights or the remedy he should pursue to enforce them. All parties, so far as appears, acted in the most perfect good faith, and Bowzer had equal knowledge with Crowell in respect of the partnership affairs and of all that took place at the time of the dissolution of the firm. No act or declaration of Crowell, or any one representing him, is charged, to have in any way influenced Bowzer, who knew every fact, relating to his claim against Crowell, and, so far as appears, had the necessary evidence to establish it. There is no pretense that he was mistaken as to any fact,- but that he came to a wrong conclusion as to the effect of the acts of himself and Crowell on the 21st of May, 1879.

It is clear that the mistake of Bowzer, if he was mistaken, was purely through his own neglect and inattention to the affairs relating to the partnership. There is no pretense that Bowzer took the usual and ordinary precautions of taking the advice of counsel even, either as to his rights or as to the remedy to be pursued. 1 It may well be, as alleged, that he acted in good faith upon his belief; but good faith alone, without the exercise of reasonable diligence, will not entitle him to relief in a court of equity. It is said that nothing can call forth a court of equity into activity but conscience, good faith and reasonable diligence. In the absence of fraud or concealment, before a court of equity will interfere because of the mistake of a party, even as to a matter of fact, the mistake must be such as the exercise of ordinary diligence would not have prevented.

It may be said that Bowzer was not bound to use greater diligence in prosecuting his claim, for the reason that he had five years within which to have brought his action, and that no laches could be attributed to him during that period. It is undoubtedly true that the statutory period of five years would bar his claim, and he might have filed a bill or brought his action of account at any time within that period; but he is here seeking to remove the disability to the maintenance of his bill created by the bar of the statute. If he had prosecuted his case in the circuit court with reasonable diligence even, after his appeal from the probate court, this question would have been settled long prior to the completion of the bar.. It is apparent that the failure of Bowzer to discover his mistakes, both as to his rights and his remedy, is not shown by the bill to have been without negligence on his part. In other words, the bill wholly fails to show that he acted with diligence in his endeavor to ascertain the truth. If he or his assignee, therefore, must suffer, it is because they have not made such a ease by-their bill as will call into activity a court of conscience. Conner et al. v. Goodman, 104 Ill. 365.

While mistake is an independent head of equity jurisdiction, it has been repeatedly held that a mistake or misapprehension of the law will not entitle the party to relief in a court of equity. (Goltra v. Sanasack, 53 Ill. 456; Ruffner v. McConnel et al. 17 id. 213 ; Shafer v. Davis, 13 id. 396; Sterns v. Page, 7 How. 829; Weed v. Weed, 94 N. Y. 243.) To this general rule there are' exceptions, comprising a very large class of cases, where a person has acted in respect of his property or estate under a misapprehension of his existing legal right or liability; but it will be found, upon examination of those cases, that the case here under consideration does not fall within the rule announced. 2 Pomeroy’s Eq. 849, and authorities.

It is further argued by counsel for appellant, that his claim is entitled, by analogy, to the benefit of section 25 of the Limitation act, which provides that where, during the pendency of a suit, the statutory period has passed, and the plaintiff is afterward non-suited, one year shall be allowed from the time of such non-suit within which to commence an action. This case comes within no provision of that section. The claimant in the proceeding in the probate court, which was subsequently appealed to the circuit court, was not non-suited, but a judgment was rendered against him in that action. The case was finally tried in the circuit court before a jury, a verdict was rendered in favor of the estate, and judgment was entered upon the verdict. If that court had jurisdiction, and it could be contended that that proceeding was an election of the remedy of Bowzer, equity would not interpose to relieve him from the effect of his choice, and the judgment there rendered would be a bar to his assertion of his claim in another forum. Penn v. Reynolds, 23 Gratt. 518; Story’s Eq. 1572.

The demurrer to the bill was properly sustained, and thp ■ judgment of the Appellate Court will accordingly be affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    Samuel C. Wiley v. James Stewart.

      Filed at Ottawa November 11, 1887.

    1. Besoission of contract—of a contract made by a mutual agent. Where a contract is effected through the instrumentality of one who sustains the relation of agent to both the contracting parties, it may, as a general rule, be avoided, at the election of one or both of the parties. Such a contract is not void, but only voidable.
    2. Same—placing parties in statu quo. If a party has received anything, under a contract which is voidable, he must restore it, if practicable, before he will be permitted to repudiate the agreement.
    3. A and B composed a banking firm, and A, B and 0 composed another firm engaged in business, which was indebted to the bank. A, as a member ' of the bank firm, loaned §800 of a depositor’s money to the firm of A, B and C, without the knowledge or consent of the depositor, or that of any of his partners. A credited the firm account of A, B and 0 with the amount, and charged the account of the depositor with the sum so loaned, and executed a note, in the name of the firm of A, B and C, to the depositor, for the same, which he left in a bundle of the depositor’s papers. In an action . on the note brought by the payee, to whose hands it had come, B denied its execution by verified plea, but no return Was made of the depositor’s money, which was used in paying the firm debt of A, B and 0: Held, that B was estopped from repudiating the contract and avoiding the note while taking the benefit of the depositor's money in paying his firm’s debts.
    4. Partnership—liability for torts of partners. A partnership firm is liable to others for the tortious acts as well as the contracts of its members within the scope of the partnership.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of La Salle county; the Hon. Charles Blanchard, Judge, presiding.
    In the year 1884, William Wilson, Osman J. Wilson and Samuel C. Wiley were partners in business, under the firm name and style of 0. J. Wilson & Co., engaged in- blaeksmithing and repairing, and making buggies, wagons, harrows and gopher cultivators, at Earlville, Illinois, and William Wilson and Osman J. Wilson were also partners in business, under the firm name of William Wilson & Co., engaged in banking, at the same place, William Wilson being the general financial manager of both firms. Among the depositors at the bank of William Wilson & Co. was the plaintiff, Stewart, who had for several years been in the habit of depositing his money there, and who had authorized William Wilson to loan his money for him whenever there was a good opportunity to do so. Some time in the year in question William Wilson signed a note, in the firm name of 0. J. Wilson & Co., for $800, and payable to Stewart, and placed it in the bank safe, among a bundle of papers that were marked as belonging to Stewart. He also entered on the account of Stewart, who had the sum of $984.29 to his credit, a charge of $800, as having been loaned to O. J. Wilson &. Co., and. upon the account of 0. J. Wilson & Co. a credit of $800, as being the proceeds of the Stewart loan. These entries, as well as the note, were dated August 1, 1884, but they appear upon the face of the bank books as having been actually entered at a date long subsequent thereto. The signing of this note, and the making of said entries on the bank books, were wholly unknown either to the plaintiff, Stewart, or to the defendant, Wiley, and there is no evidence that the firm of 0. J. Wilson & Co. ever received this $800, excepting the entries above mentioned, made by William Wilson in the bank books, which entries, as before stated, were made without the knowledge of his co-partners, or of Stewart. According to the evidence introduced by the defendant, and the offers of proof made by him, William Wilson had no authority to borrow money or execute promissory notes in the firm name of O. J. Wilson & Co.
    On the 19th of December, 1884, the banking firm of William Wilson & Co., being insolvent, made a voluntary assignment, for the benefit of its creditors, to Charles M. Smith, as assignee, and on the 23d day of December, 1884, Samuel C. Wiley filed a bill in chancery in the circuit court of La Salle county, for the dissolution of the firm of 0. J. Wilson & Co. and the appointment of a receiver, and on the same day a receiver was appointed by the court. Up to the time of the assignment of William Wilson & Co., and until about ten days thereafter, Stewart had always supposed his money was on deposit in their banking house, and was wholly unaware of the existence of the note until it was shown him by the assignee. The assignee having, some eight weeks afterwards, delivered the note to him, he brought this suit.
    To the declaration, the defendant, Samuel C. Wiley, interposed the plea of the general issue, and a plea denying the execution of the note, properly verified by affidavit. William Wilson having fled to parts unknown, was not served with process, and Osman J. Wilson declining to plead, was defaulted. A trial was had, resulting in a verdict and judgment in favor of plaintiff for $906.66, from which defendant, Wiley, prosecuted an appeal to the Appellate Court for the Second District, which affirmed the judgment. A certificate of importance having been granted, the case is now brought here for review.
    Messrs. Duncan, O’Connor & Gilbert, and Mr. Samuel Richolson, fo’r the appellant:
    William Wilson could not lawfully act as the agent for both O. J. Wilson & Co. and for Stewart. Ewell’s Evans on Agency, 18; Greenwood v. Spring, 54 Barb. 375; Claflin v. Bank, 25 N. Y. 293; Florence v. Adams, 2 Rob. (La.) 556; Insurance Co. v. Insurance Co. 14 N. Y. 85; Copeland v. Insurance Co. 6 Pick. 198; Story on Agency, sec. 211.
    A delivery of the note was absolutely necessary. Hint v. Weir, 29 Ill. 84; Bank v. Strong, 72 id. 560; Foy v. Blackstone, 31 id. 541.
    There is no legitimate proof that the firm of 0. J. Wilson & Co, received the benefit of the $800 borrowed of appellee.

      Messrs. Bull, Strawn & Huger, for the appellee:
    That the delivery of the note was good, see Williams v. Galt, 95 Ill. 172; Folley v. VanTuyl, 9 N. J. L. 153; Daniell on Neg. Inst. see. 63, pp. 74, 75, 65.
    William Wilson was the agent for O. J. Wilson & Co. His loaning to a firm of which he was a member, rendered the contract voidable by Stewart, but not void. Story on Agency, sec. 214; Greenwood v. Spring, 54 Barb. 375.
    William Wilson could not repudiate his own acts if he desired. Cotton v. Holliday, 59 Ill. 176.
    When the partnership is proved, and the giving of the note by one of the partners, the presumption is the note was given in the business of the firm. Littell v. Fitch, 11 Mich. 524; Currier v. Cameron, 31 id. 373.
    The firm of 0. J. Wilson & Co. having received the benefit of the $800, and still retaining such benefit, can not avoid payment of the note by repudiating the act of William Wilson.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The foregoing statement, which was prepared by appellant’s counsel, though not quite as full in some respects as it might be, and perhaps slightly colored in others, is nevertheless substantially correct, and sufficiently accurate for the purposes of what we propose to say on the subject. A reference to a few well recognized principles, it is believed, will afford a solution of whatever difficulties, real or imaginary, that are supposed to be in the case before us.

It is undoubtedly true, as claimed by appellant, that where a contract is effected through the instrumentality of one who sustains the relation of agent to both the contracting parties, it may, as a general rule, be avoided, at the election of one or both of the parties. So far there is no conflict of opinion. But is such a contract absolutely void ? The logic of appellant’s argument seems to maintain that it is; yet upon principles about which there can be no two opinions, it clearly can not be. If in such case the principals, after notice of the agent’s true relations to the contracting parties, should either expressly approve the contract, or by a course of conduct treat it as an existing obligation, it would, by all the authorities, become obligatory and binding upon them, to the same extent as if they had originally made it in person. This, of itself, on the universal principle that what is void can not be ratified, demonstrates that such a contract is voidable, only. The case of Francis v. Kerker, 85 Ill. 190, is an authority directly in point, wherein such a contract was held to have been ratified by the conduct of the complaining party after notice.

There is also another principle applicable to cases of this kind, where, as in the present instance, the contract has been partly executed, which is not only sustained by the authorities, but is founded alike in reason and in justice. It is, that if a party has received anything under such a contract he must restore it, if practicable, before he will be permitted to repudiate the agreement. Harding v. Parshall, 56 Ill 219; Buchencm v. Homey, 12 id. 336; Staley v. Murphy, 4Y id. 241.

In this case, the money for which the note in question was given was appropriated, whether rightfully or wrongfully, by O. J. Wilson & Co. in the payment of their indebtedness to the bank, and although this was done some six months or more before the commencement of the suit on the note, the appellant does not seem to have interposed any objection to it or made any complaint about it. The answer to this is, that he did not, personally, know anything about it. That does not at all, in our opinion, alter the case. He clearly had constructive notice of the state of the firm’s account with the bank, including the $800 received from appellee, and appellant is therefore to be held to the same degree of responsibility as if he had had personal knowledge of the transaction. There might be special circumstances which would require a change of the rule, as, where the managing partner of a firm has conspired with third parties to perpetrate a fraud upon the other members, who have no personal knowledge of the partnership affairs. But nothing of that kind is pretended here.

If> as appellant seems to claim, the action of Wilson in executing the note to appellee, and appropriating the $800 to the payment of the firm’s indebtedness to the bank, was absolutely void as a contract, what, then, was the legal effect of the transaction ? "Viewed in that light, it was clearly the simple case of one member of a firm taking the money of a third party and appropriating it to the firm’s use,—or, more shortly, it was a tortious conversion by the firm of appellee’s money, for which appellant was equally liable with Wilson, on the familiar principle that the firm is liable for the torts as well as the contracts of its members within the scope of the partnership. And in this view of the ease the amount thus taken might well have been recovered, under the declaration in this case, as money had arid received to the use of the plaintiff. In that view, however, the finding of the jury is perhaps a trifle too large. We do not adopt this theory of the case, however, but have presented it merely to show how little merit there is in the defence, upon appellant’s own theory of it.

In view of the fact that appellant has had the full benefit of the money for which the note was given,—at least his firm has, which, in law, amounts to the same thing,—the defence, to say the least of it, strikes one, at first blush, as being decidedly novel. If appellee were trying to collect the money sued for, from the bank, notwithstanding the loan to O. J. Wilson & Co., on the ground that Wilson could not bind appellee while acting for his own firm, there would be much force in the defence. But the present case is wholly unlike the one suggested. Here appellee, who is the only sufferer, takes no exception to Wilson’s authority to make the loan to the latter’s , own firm. On the contrary, he has fully ratified it by bringing suit on the note. But the defendant, whose firm has enjoyed the benefits of the loan, says, by way of defence: “It is true, we got the money and paid our debt to the bank with it, but as Wilson had no right to borrow of appellee on the firm’s account, because in effecting the loan he acted as the agent of appellee, the loan itself is therefore illegal and void.” The law certainly does not sanction such a defence, and we so hold. The appellant not having restored what the firm received under the contract, but having enjoyed the full benefit of the loan, he is estopped from questioning its validity.

We have not thought it necessary to take up and consider separately the points made in appellant’s brief. The views here presented are believed to sufficiently answer the substance of the defence, as we understand it, and for a more specific treatment of the questions discussed we refer the parties and counsel to the opinion of the Appellate Court, which has our approval.

The judgment of that court will be affirmed.

Judgment affirmed.


author: Mr. Chief Justice Sheldon

text:
    Lewis May, Assignee, v. The First National Bank of Attleboro.

      Filed at Ottawa November 11,1887.
    1. Conflict of laws—volimtm-y assignment for benefit of creditors, made in another Slate—whether enforcible here. A voluntary assignment made in another State by a non-resident debtor, executed in conformity with our laws in respect to the conveyance of property, inconsistent, in substantial respects, with our statute relating to assignments, will not be enforced here to the detriment of our citizens; but for all other purposes, if the assignment be valid by the lex loci, it will be carried fully into effect. Rhawn v. Pearce, 110 Ill. 350, is not in conflict with this rule, as in that case the assignment was by operation of the law of another State, which could not pass property out of its limits.
    2. Non-resident owners are authorized by our laws to make conveyances of land situated in this State, if made pursuant to our law for the making of such conveyances. Therefore, a voluntary assignment of a non-resident debtor in form sufficient to convey real estate, will be held valid, unless made in contravention of some law or policy of this State.
    3. Same—preference among creditors—m a foreign volwntary assignment. The provision in our statute prohibiting all preferences in assignments by debtors, applies only to those made in this State, and not to those made in other States. The statute concerns only domestic assignments and domestic creditors.
    4. Non-resident debtors may execute voluntary assignments, with or without preferences, among foreign creditors, as they may see fit, so long as creditors in this State are not injuriously affected thereby.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. James S. Norton, for the appellant:

      Heyer v. Alexander, 108 Ill. 385, was a voluntary assignment by non-residents, of property here, and it was held valid except as against resident creditors. Rhawn v. Pearce, 110 Ill. 350, does not overrule the same, so far as it favors citizens of the State. The last ease merely decides that an assignment by operation of law in Pennsylvania does not pass property in Illinois, thus making a distinction between a voluntary and statutory assignment. Dehner v. Rolling Mills, 7 Bradw. 47.
    The prohibition of preferences in the statute is only as to assignments made in this State. (Rev. Stat. chap. 72, sec. 49.) The right to prefer creditors is given by the New York statute, and the same right existed at common law. Cooper v. McClure, 16 Ill. 435.
    A foreign assignment sufficient to pass real estate in this State will be upheld and enforced except as against the interests of domestic creditors of the assignor. Chaffee v. Bank, 71 Me. 514; Ockerman v. Cross, 54 N. Y. 29; Female Academy v. Sullivan, 116 Ill. 375; Bentley v. Whittemore, 19 N. J. 462; Thurston v. Rosenfeld, 42 Mo. 474; Cowell v. Springs Co. 100 U. S. 55.

      The “privilege and immunity clause” in the Federal constitution has no application. Chaffee v. Bank, supra; Connor v. Elliott, 18 How. 591; McCready v. Virginia, 94 U. S. 391; Coryell v. Coryell, 4 Washb. C. C. 371.
    Mr. George L„ Thatcher, for the appellee;
    The assignment, with the preferences, made in New York, and relied upon by appellant, is not operative as a conveyance of real estate in this State, as against an attaching creditor, a resident of Massachusetts. Rhawn v. Pearce, 110 Ill, 350; National Bank v. Lacombe, 84 N. Y. 367; Brown v. Knox, 6 Mo. 306; Upton v. Hubbard, 28 Conn. 275; Paine v. Lester, 44 id. 204; Warner v. Jaffray, 96 N. Y. 248; Kidder v. Tufts, 48 N. H. 121; Davis v. Pierce, 7 Minn. 13; Jackson v. Butler, 8 id. 117; McFarland v. Butler, id. 116.
    It will not be enforced, because it contains preferences. Bryan v. Brisbin, 26 Mo. 423; Story on Conflict of Laws, sec. 388.
    In the case of Insurance Co. v. Commercial Bank, 68 Ill. 348, this court has said: “No doctrine is better settled by authority than that the title to real estate or immovable property can only be affected in the mode recognized by the laws of the State within whose territory it is situated.” Story on Conflict, of Laws, (8th ed.) 609; Bethell v. Bethell, 92 Ind. 310; Osburn v. Adams, 18 Pick. 245.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court;

On July 12, 1884, the firm of Halsted, Haines & Co., of New York, made a general assignment to Lewis May, of all partnership and individual property, for the benefit of creditors, providing for certain preferences in case the estate should not be sufficient to pay all creditors in full. On August 22, 1884, the First National Bank of Attleborough, Massachusetts, commenced suit, by attachment, against Halsted, Haines & Co., in the Superior Court of Cook county, Illinois, and the writ was levied upon certain real estate in Cook county covered by the deed of assignment. Lewis May, the assignee, interpleaded, setting up the deed of assignment, and alleging the insolvency of the assignors, the proper execution of the deed, that it was made in conformity to the laws of New York, that the deed of assignment was recorded in the recorder’s office of Cook county on July 28, 1884, and that the plaintiff in the attachment had actual notice of the deed before the commencement of the suit. A demurrer to the plea was sustained and the plea dismissed. The judgment was affirmed by the Appellate Court for the First District, and the claimant, May, appeals to this court.

The deed of assignment was executed in conformity with the requirements of our law for the conveyance of real estate situated in this State. In Heyer v. Alexander, 108 Ill. 385, it was decided that a voluntary assignment by a non-resident, of property in Illinois, for the benefit of his creditors, was not operative to convey the title to the property, as against resident creditors in this State suing by attachment.

The further inquiry for us in this case is, whether such an assignment is valid as against creditors who do not reside in this State, or that of the assignor. Rhawn v. Pearce, 110 Ill. 350, was a case where, under a domestic attachment in a court of Pennsylvania, trustees of the estate of the debtor had been appointed by the court, the effect of which, under the statute of that State, was to vest the trustees with all the estate of the debtor. After the time of such vesting of the debtor’s estate, creditors of the debtor,—residents of Pennsylvania,— brought an action by attachment against him in this State, and it was decided by this court that such statutory assignment was inoperative as against said creditors attaching effects of the debtor in this State. That case is supposed by appellee’s counsel to be an authority in their favor that a voluntary assignment made without the State, of property situated in this State, will he held to he invalid, as well against foreign as against domestic creditors attaching the property here. This is a misapprehension of that decision. That ease was one of a transfer by mere operation of law, without any conveyance at all by the owner of the property, where the law of Pennsylvania, by whose operation, alone, the property was transferred, could not have any extra-territorial effect, and in such a ease as that the assignment was held to be inoperative in this State, alike against our own citizens and the citizens of other States. The distinction between voluntary assignments, and those by operation of law, was clearly taken. In a citation there made, there is language used, which, abstractly tak en, might imply that there was no distinction in this respect to be admitted in a court between the citizens of its own State and those of another State. The case in 84 N. Y. 367, from which the citation was made, was one like that of Rhawn v. Pearce,—an assignment by operation of law; and as used with reference to such a case, the language was correct, and we adopted and applied it as correct, in reference to such a case, in Rhawn v. Pecawe. But in the broad extent that in no case should a court hold to a distinction, in pursuing"legal remedies, between citizens of its own State and those of another, we are not ready to yield assent thereto. It is not a proposition warranted by the authorities.

Non-resident owners are authorized, by our laws, to make conveyances of land situated in this State, if made pursuant to our law for the making of such conveyances. The assignment in question is a voluntary conveyance, made, in form, pursuant to our statute for the conveyance of real estate. It should then be held valid, unless it was made in contravention of some law or policy of the State. It is claimed the assignment does contravene our statute respecting assignments for the benefit of creditors, in that our statute forbids preferences among creditors, and this assignment makes such preferences. The provision of our statute is: “Every provision in any assignment hereafter made in this State, providing for the payment of one debt or liability in preference to another, shall be void, and all debts and liabilities within the provisions of the assignment shall be paid pro rata from the assets thereof.” It is thus seen that the provision, in express terms, is limited to assignments made in this State. This assignment was not made in this State, but was made in the State of New York, where such preferences are allowed. Our statute does not apply to an assignment made without the State, and the assignment is not in contravention of the statute.

It is then claimed, that if not against the terms, the assignment is against the policy of the statute. The statute concerns only domestic assignments and domestic creditors. It is a regulation with respect to them alone, and beyond them the policy of the act does not extend. An assignment giving preferences, though made without the State, might, as against creditors residing in this State, with some reason, be claimed to be invalid, as being against the policy of the statute in respect of domestic creditors,—that it was the policy of the law that there should be an equal distribution with respect to them. But as the statute has no application to assignments made without the State, we do not see that there is any policy of the law which can be said to exist with respect to such assignments, or with respect to foreign creditors, and why non-residents are not left free to execute voluntary assignments, with or without preferences, among foreign creditors, as they may see fit, so long as domestic creditors are not affected thereby, without objection lying to such assignments that they are against the policy of our law. The statute was not made for the regulation of foreign assignments, or for the distribution, under such assignments, of a debtor’s property among foreign creditors.

A parallel case with the one at bar, is that of Bentley v. Whittemore, 19 N. J. Eq. 462,—a case of a voluntary assignment, with preferences among creditors, made in the State of New York, and covering land in the State of New Jersey. The law of New Jersey prohibited such preferences; ' the law of New York allowed them. The court, in the previous case of Varnum v. Camp, 1 Green, 326, had held, as we did in Heyer v. Alexander, that such an assignment was invalid as against creditors resident in New Jersey; but in the latter case of Bentley v. Whittemore, the court sustained such an assignment made in the State of New York against creditors who did not reside in New Jersey, and alike against creditors, citizens of New York and of other States than that of New Jersey. It was held that the New Jersey law applied only to assignments made within that State, and to domestic creditors; and that the enforcement of the assignment, in its application to the citizens of New York or other States, did not in any way contravene any law or policy of the State of New Jersey. The court said: “The true rule of law and public policy is this:

that a voluntary assignment made abroad, inconsistent, in substantial respects, with our statute, should not be put in execution here, to the detriment of our citizens, but that for all other purposes, if valid by the lex loci, it should be carried fully into effect.” To the same effect is Chafee v. Fourth National Bank, 71 Me, 514.

The rule held in these cases meets our concurrence, as in accordance with principle and the weight of authority.

The judgment is reversed, and the cause remanded to the Superior Court of Cook county.

Judgment reversed.

Mr. Justice Scott, dissenting.


author: Mr. Justice Magruder

text:
    Christian Luther et al. v. Charlotte Luther et al.

      Filed at Ottawa September 26, 1887.

    1. Wills—probate and contesting of wills—time within which to exhibit a to contest. Section 2 of chapter 148 of the Revised Statutes, entitled provides for the ex parte proof of wills on the testimony of the attesting witnesses, which corresponds with the probate, in England, “in common form,” while the subsequent proceeding by bill in equity, under section 7, to contest the validity of the will, is analogous to the probate “in solemn form,” by the executor, upon being cited in by the next of kin. Both stages differ from the English probates in extending to the real as well as personal estate.
    2. The provision in the statute that if anv person interested shall, within ^lee yeal's after the probate of any will, by bill in chancery, contest the validity of the same, etc., is not a limitation law. The filing of the bill within three years is a jurisdictional fact, and is necessary to put the court in motion. The court has no power to entertain such a bill which has been filed after the three years have expired, except in the cases of disability named in the statute.
    Appeal from the Circuit Court of Cook county; the Hon. John C. Bagby, Judge, presiding.
    Mr. Merritt Starr, and Mr. J. P. W. Brown, for the appellants :
    The statute prescribing the time within which a will may be contested in chancery is a Statute of Limitations.
    The hen has always the right to contest the will. He can not he deprived of property or he disinherited without a hearing. Stat. 28 Edw. III, chap. 53; Cooley’s Blackstone, (3d ed.) 138, 139, and notes.
    This remedy has existed from the beginning of the English law of wills. 1 Williams on Executors, (6th Am. ed.) foot pp. 325, 333, 334; 4 Burn’s Ecclesiastical Law, (Philliman’s ed.) 316, 318.

      The following cases, in addition to those above cited, are particularly instructive in showing that the American courts retained the practice of the English court in requiring probate and re-probate in common form and solemn form. Collier v. Idley, 1 Bradf. 94; Campbell v. Logan, 2 id. 90; Proctor v. Wanamaker, 1 Barb. Ch. 302; Gibson v. Lane, 9 Yerg. (Tenn.) 475; Townsend v. Townsend, 4 Coldw. (Tenn.) 70; Brown v. Anderson, 13 Ga. 171; Kinnard v. Riddlehoover, 3 Rich. (S. C.) 258; Noyes v. Barber, 4 N. H. 406; George v. George, 47 id. 44; Wall v. Wall, 30 Miss. 91; Hamberlin v. Terry, 7 How. (Miss.) 148; Cowden v. Dobyns, 5 S. & M. 82; Martin v. Perkins, 56 Miss. 204; Tucker v. Whitehead, 58 id. 762; Barksdale v. Hopkins, 23 Gra. 332; Walker v. Perryman, 23 id. 309; Hubbard v. Hubbard, 7 Ore. 42.
    The nature of the remedy shows that the statute is a statute of limitations.
    The statute has been construed a statute of limitations. Heirs of Critz v. Pierce, 106 Ill. 167; Brown v. Riggin, 94 id. 560; Wells’ Will, 5 Litt. 273; Coalters v. Bryan, 1 Gratt. 18 ; Connolly v. Connolly, 32 id. 657; Rogers v. Thomas, 1B. Mon. 390; Bradford v. Andrews, 20 Ohio St. 208; Mears v. Mears, 15 id. 96; McArthur v. Scott, 113 U. S. 340; Noyes v. Barber, 4 N. H. 406.
    The limitation, not being pleaded, is waived. Brill v. Stiles, 35 Ill. 305; Borders v. Murphy, 78 id. 81; Trustees v. Wright, 12 id. 441.
    The fraudulent concealment by the defendants, of the complainant’s cause of action to contest the alleged will, brings the ease within the special statute on fraudulent concealment, viz., Bev. Stat. chap. 83, sec. 22.
    The limitation will commence to run only from the time of the discovery of the fraud. McIntosh v. Saunders, 68 Ill. 128; Campbell v. Vining, 23 id. 525; Henry County v. Winnebago County, 52 id. 299.

      Mr. A. W. Osgood, and Mr. M. F. Higgle, for the appellees:
    There is no connection between the statute of wills and limitations.
    Upon the death of Christian Luther Sr., complainant was placed upon his inquiry as to the manner of the execution of the will, and having slept for a period of ten years, he is barred by his own laches. Farnam v. Brodke, 9 Pick. 212.
    If section 22 of limitations applied to section 7 of wills, then with equal force could it be applied to section 19 of the Chancery Code, a bill of review or writ of error, “because this statute by which parties are brought into court upon constructive notice, though undoubtedly necessary for the administration of justice, may be made the means of perpetrating very great wrong.” Lyon v. Robbins, 46 Ill. 278.) And yet if any of the parties do not appear within the time therein limited, no matter what injustice may have been perpetrated, they can not allege an execuse for not having acted within the time limited by statute. This probate, like a decree in chancery, can not be annulled, vacated or set aside, except within the time limited by the law.
   Mr. Justice Magruder

delivered the opinion of the Court:

Christian Luther Sr., died testate on September 4, 1875, leaving him surviving a widow, the appellee Charlotte Luther, and three children, the appellant Christain Luther, and the appellees John Luther and Sophia Luther, since married to William Nieberg. On September 3, 1875, he made a will, leaving his furniture and personal property to his widow, and also giving her a life estate in all his other property, including lots 4, 5 and 6 of assessor’s subdivision of the north-east quarter and part of the north-west quarter of fractional section 5, town 40 north, range 13 east, etc., in Cook county. He devised these lots to John to be taken possession of by him after the widow’s death. He gave appellant, Christian Luther, $50 and Sophia $1000, these sums to be paid after the widow’s death, and, if-the money should not then be on hand for their payment, they were to be liens on the land until John should pay them.

The will was admitted to probate in the county court of Cook county on September 27,1875, and letters testamentary were then issued to the appellee Wende, as executor.

This bill was filed in the circuit court of Cook county on September 1, 1885, for the purpose of setting aside the will and the probate thereof on the grounds that the testator was not of sound mind and memory when he made the will, and that he was induced to make it by the fraud, falsehood and misrepresentation of said Wende and of said Charlotte, John and Sophia. The bill alleges that appellants did not learn of the testator’s unsoundness of mind and memory, nor of the fraud and undue influence used in obtaining the will, until March, 1884, and that the cause of action set up in the bill was fraudulently concealed by the defendants therein from the complainants until within three years before filing the bill.

The defendants on November 9,1885, filed an answer denying all the allegations of the bill, but making no reference to the fact of its being filed after the three years prescribed by the statute. Complainants filed a replication to the answer.

The cause came on to be heard; a jury was impaneled to try the issue whether the writing produced was the will of the deceased or not; two witnesses were sworn and testified for ■defendants; the circuit judge, then having inquired of the solicitor for complainants and being informed by him that complainants did not come within the saving clause of the statute as to infants, femes covert, persons absent from the State or non compos mentis, dismissed the bill on the ground that, upon the face of it, he had no jurisdiction to try the cause.

It will be noted that the will was admitted to probate on September 27, 1875, and that this bill to contest its validity was not filed until nearly ten years afterwards: to-wit on September 1, 1885.

The main question presented by the record is, whether a. court of chancery in this State can, under our statute, entertain a bill to set aside the probate of a will when more than three years after such probate have elapsed before-the bill is. filed. The statute is as follows:

“Sec. 7. When any will, testament or codicil shall be exhibited in the county court for probate thereof, as aforesaid, it shall be the duty of the court to receive probate of the same' without delay, and to grant letters testamentary thereon to the-person or persons entitled, and to do all other needful acts to' enable the parties concerned to make settlement of the estate-at as early a day as shall be consistent with the rights of the-respective persons interested therein: Provided, however, that, if any person interested shall, within three years after the probate of any such will, testament or codicil, in the county court, as aforesaid, appear, and by his or her bill in chancery contest the validity of the same, an issue at law shall be made up, whether the writing produced be the will of the testator or testatrix or not, which shall be tried by a jury in the circuit court of the county wherein such will, testament or codicil shall have been proven and recorded, as aforesaid, according to the practice in courts of chancery in similar cases; but if no-such person shall appear within the time aforesaid, the probate as aforesaid shall be forever binding and conclusive on all the-parties concerned, saving to infants, femes covert, persons absent from the State, or non compos mentis, the like period after the removal of their respective disabilities. And in all such trials by jury, as aforesaid, the certificate of the oath of the-witnesses at the time of the first probate shall be admitted as evidence, and to have such weight as the jury shall think it may deserve.” Section 7 of “An act in regard to wills,”' approved March 20,1872,—Eev. Stat. chap. 148.

The act of January 23,1829, in force July 1, 1829, (Rev. Laws, 1829, p. 193, sec. 5,) and the act of 1845, (Rev. Stat. 1845, chap. 109, sec. 6, p. 537,) were the samé as the act of 1872, except that, in the former, the period was five years instead of three years. Section 7 is, in substance, a transcript of the 11th and 15th sections of a statute of Kentucky passed February 24,1797. (Rigg v. Wilton, 13 Ill. 15.) The Kentucky statute was taken from the Virginia act of 1785, which was a remodeling of an earlier Virginia act passed in 1748. Well’s Will, 5 Litt. (Ky.) 273; 12 Hening’s Va. Stat. at Large, p. 142; 5 id. pp. 454, 455; 1 Littell’s Laws of Ky. p. 611, sec. 293, and note.

The Virginia statute was construed in Coulter’s Exr. et al. v. Bryan et al. 1 Gratt. 18, and in Connolly v. Connolly et al. 32 id. 657. The Kentucky statute was construed in Rogers v. Thomas, 1 B. Mon. 390.

In England the probate of wills of personal property was exclusively vested in the ecclesiastical courts. There were two modes of probate one ex parte, the other inter partes. One was proof of the will “in common form;” the other was proof thereof “in solemn form” or “per testes.” When a will was proven “in common form,” it was taken before the judge of the proper court of probate, and the executor produced witnesses to prove it to be the will of the deceased without citing or giving notice to the parties interested; it was admitted to' probate in the absence of such parties. When, however, a will was proven “in solemn form,” it was done upon petition of the proponent for a hearing, and all such persons as had an interest, such as the widow, heirs, next of kin, etc., were notified and cited to be present at the probating of the testament; interrogatories were propounded to the witnesses by those producing the will and by the adverse party. The executor of the will, proved “in common form,” might, at any time within thirty years, be compelled by a person, having an interest, to prove it per testes “in solemn form.” 1 Williams on Executors, (6th Am. ed.) foot pp. 325, 333, 334; Waters v. Stickney, 12 Allen, 1; Redmond v. Collins, 4 Dev. 430; Etheridge v. Corprew, 3 Jones, 14.

But in England, there was no court for the probate of wills of realty. The validity of the will was decided incidentally in controversies concerning rights of property claimed under or against it. These controversies were settled in the appropriate jurisdictions. The title of the heir was in its nature legal, and might be asserted in an action of ejectment.

The statute of Virginia, upon which our own and that of Kentucky are based, provided for the probate “in common form” or ex -parte of wills of both personalty and realty, and also extended the privilege of requiring a re-probate “in solemn form” to wills of realty as well as to those of personalty. Such re-probate was to be asked within seven years, instead of three years as under the Illinois statute. Those to be cited were the persons interested in sustaining rather than those interested in setting aside the will. The contest was to be decided in a court of chancery through the instrumentality of a jury rather than in the original court of probate.

The words in section 7 of our act in regard to wills: “When any will, etc., shall be exhibited in the county court for probate, as aforesaid, it shall be the duty of the court to receive probate of the same without delay,” refer back to section 2 of that act. (Rev. Stat. chap. 148.) Section 2 provides for the ex parte proof of wills on the testimony of the attesting witnesses, which is analogous to the probate in England “in common form.” The subsequent proceeding by bill in equity, under section 7, to contest the validity of the will, is analogous to the probate “in solemn form” by the executor upon being cited in by the next of kin. Both stages of the proceedings, however, differ from the former English probates in that they ■extend to the real estate as well as to the personal property. McArthur v. Scott, 113 U. S. 340.

Counsel for appellants claim, that the provision in section 7 for filing the bill within three years is a mere statute of limitations, and that, inasmuch as appellees did not plead the bar of the statute in their answer, they waived it. This position is based upon the theory, that the right to contest the validity of the will was not a new right conferred by the statute, but a right, which existed at common law before the statute, and that, therefore, the statute merely- limits the time within which such right may he asserted.

Outside of the statute, however, no right existed in favor of the heir to go into a court of chancery to contest the validity of the will. He could not go into equity for any other purpose than to remove impediments to a full and fair trial at law. The power to entertain bills of this character is not embraced among the general equity powers of a court of chancery.

In Gaines v. Fuentes, 92 U. S. 10, the Supreme Court of the United States say: “In the case in Broderick’s Will the doctrine is approved, which is established both in England and in ' this country that by the general jurisdiction of courts of equity, independent of statutes, a bill tvill not lie to set aside a will or its probate, and whatever the cause of the establishment of this doctrine originally, there is ample reason for its maintenance in this country, from the full jurisdiction over the subject of wills vested in the probate courts and the revisory power over their adjudications in the appellate courts.” [Broderick’s Will, 21 Wall. 503; Gaines v. Chew, 2 How. 619; Gould v. Gould, 3 Story, 516; Tarver v. Tarver, 9 Pet. 174; Holden v. Meadows, 31 Wis. 284; Archer v. Meadows, 33 id. 166; 2 Pomeroy’s Eq. sec. 913.) Since the decisions of Kendrick v. Braushy, 3 Bro. P. C. 358, and Webb v. Cleverden, 2 Atk. 424, it has been held in England that equity will not set aside a will for fraud and imposition. The same rule has been generally adopted, in the United States. Under the common law system the validity of wills of real estate could only he tested in an action at law; that of wills of personal property was established by the decree of the ecclesiastical court in the proceedings for probate. 2 Pomeroy, 913.

Therefore, as the jurisdiction of courts of chancery in this State to entertain bills to set aside the probate of wills is derived exclusively from the statute, such jurisdiction can only be exercised in the mode and under the limitations prescribed by the statute. “If any person interested shall, within three years after the probate, etc., appear and by * * * bill in chancery, contest the validity of the” will, “an issue at law shall be made up, ” etc. If such person does not appear within three years, an issue at law can not be made up. The appearance within three years is a jurisdictional fact, and is necessary in order to put the machinery of the court in motion so as to test the validity of the will. The court has no power to entertain the bill after the three years have passed.

The reason of this is apparent from the words, “if no such person shall appear within the time aforesaid, the probate as aforesaid shall be forever binding and conclusive on all the parties concerned, saving to infants,” etc. The original probate of the mil upon the testimony of the subscribing witnesses is allowed without delay, in order to secure an orderly settlement of the estate and to prevent the embarrassments and injurious consequences to creditors and others, which might result from the delay incident to a contest over the will. But serious consequences may also result from too long a delay to the property rights and titles of parties interested in and holding under the will, and, therefore, a period should be fixed after which the original probate should be regarded as binding and conclusive.

It is urged however that the jurisdiction of the court of chancery, in this proceeding, is merely that of a court of probate. Its jurisdiction can not be a mere extension and continuation of the “solemn form” powers of the probate court so far as the realty is concerned, because at common law the probate court exercised no control either in common or solemn form over real estate, but only over personalty. But while the court of chancery is not empowered to give general relief, it may exert its powers to secure the specific relief designed by the statute. Though limited in its functions, it is still a court of equity. The proceeding is commenced by bill, framed as any other bill in equity would be framed, except that it is confined to the relief contemplated by the statute, namely, the determination by a jury, on an issue to be directed and tried, of the validity or invalidity of the will. The court, by decree, settles and directs the issue. Connolly v. Connolly, supra.

The decree of the circuit court is affirmed.

Decree affirmed.


author: Mr. Justice Scholfield

text:
    Alonzo W. Allen et al. v. Amzi F. Jackson et al.

      Wiled at Ottawa November 11, 1887.

    1. Teust—arising out of a confidential relation—trustee midertaking to profit thereby. A party may voluntarily assume a confidential relation toward another, and if he does so, he can not thereafter do any act for his own gain at the expense of such relation.
    2. So when a person obtains the legal title to property by virtue of a confidential relation and influence, under such circumstances that he ought not, according to the rules of equity and good conscience, to hold and enjoy the beneficial interests of the property, a court of equity, in order to administer complete justice between the parties, will raise a trust by construction, and fasten it upon his conscience, and convert him into a trustee of the legal title, and order him to hold it, or to execute the trust in such manner as to protect the rights of the real party in interest.
    3. A corporation acquired a tract of land subject to an incumbrance thereon, which it was to discharge, and laid the same out into lots, which it sold, making warranty deeds therefor. On bill to enforce the incumbrance, the lot owners applied to one who was a director and president of the corporation, and asked him if the company would protect them, and what steps they should take, and he assured them that the company would protect their rights, and directed them to pay no attention to the suit. Relying on this assurance, no defence was made and no steps taken to pay off the incumbrance, and the property was sold, and such officer acquired the legal title to the lots, and claimed the same adversely to the rights of the prior purchasers thereof: Held, that by directing such purchasers to make no defence, but to trust to the company, such officer voluntarily assumed a confidential relation, and incapacitated himself from becoming the purchaser of the lots at the foreclosure sale to the detriment of the prior purchasers from the company, and that he took the property in the same situation it was when he assured the lot purchasers that their rights should be protected.
    4. Purchasers—subject to incumbrance—in case of sales in parcels where incumbrance is on am entire tract—marshaling assets. A land company bought a tract of land, the purchase money of which was unpaid by its grantor, and which was an incumbrance to be paid by the company. The company laid the land out in lots, many of which it sold, and conveyed by warranty deeds. The original purchase money not being paid, a bill was filed by the holder of the incumbrance to have the property sold: Held, that the purchasers of the lots were entitled to have an account taken of all that had been paid, and for the payment of the balance to have the unsold lots of the company first sold, and should there still remain a balance due, to have the other lots sold in the inverse order of their alienation.
    Writ of Error to the Circuit Court of La Salle county; the Hon. George W. Stipp, Judge, presiding.
    Messrs. Bull, Strawn & Ruger, for the plaintiffs in error:
    In equity, the summary remedy for fraud is to convert the wrongdoer into a trustee and the one wronged into a cestui que trust, and then enforce the execution of the trust. Tiffany & Bullard on Trusts, 113, 115, 120.
    But, independent of this, Jackson stood as the trustee of the creditors of the company. The directors are the primary agents of the corporation, and the relation of trustee and cestui que trust exists between them and creditors, and the fiduciary character of this relation requires of them the highest and most scrupulous good faith in their transactions for the corporation and creditors. Field on Corporations, 172, 397, 403; Jackson v. Ludeling, 21 Wall. 616; Railroad Co. v. Kelley, 77 Ill. 426; Thompson on .Liability of Officers and Agents of Corporations, 395, et seq.; Bank of St. Marys v. St.John, 25 Ala. 566.
    Jackson was president of the company at the time he purchased this property, for the corporation still existed, notwithstanding the appointment of a receiver. (People v. Barnett, 91 Ill. 422.) And the rule is universal that no person shall be permitted to purchase an interest in property when he has a duty to perform, inconsistent with his character of purchaser on his own account. 1 Washburn on Real Prop. (2d ed.) *430; Tiffany & Bullard on Trusts, 152, 148, 149; Story’s Eq. Jur. secs. 323, 328, 322; Britton v. Handy, 20 Ark. 381; Torrey v. Bank of Orleans, 9 Paige, 648; Van Epp v. Van Epp, id. 237; Railroad Co. v. Kelley, 77 Ill. 426; Davis v. Hamlin, 108 id. 39; 1 Leading Cas. in Eq. 62, note to Keech v. Sandford; Railway Co. v. Poor, 59 Me. 277; Thompson on Liability of Officers and Agents of Corporations, chap. 3, notes, sec. 8, p. 360.
    Even if Jackson had not been connected with the company, making the statements he did with a view of obtaining the title thereby, would, in equity, render him a trustee. Beach v. Dyer, 93 Ill. 295; Perry on Trusts, sec. 166; 1 Story’s Eq. Jur. (8th ed.) sec. 256; Doyle v. Wiley, 15 Ill. 576; Trotter v. Smith, 59 id. 240.
    If a grantee obtains a deed by means of promises to hold the land for another, this is sufficient to raise a trust in favor of the latter, on the ground of fraud, and this may be proved by parol. 2 Washburn on Real Prop. (3d ed.) 451; Dennis v. McCagg, 32 Ill. 429; Morgan v. Clayton, 61 id. 35; Strong v. Shea, 83 id. 575 ; Switzer v. Skiles, 3 Gilm. 529; Wright v. Gay, 101 Ill. 233; Brophy v. Lawler, 107 id. 284; Roller v. Spillman, 13 Wis. 33.
    Jackson can not excuse himself by saying his statements were the act of the company, for then equity would say: Your purchase was also the act of the company, to which you must look for reimbursement. But agency will not excuse a personal liability for fraud. Story on Agency, sec. 311; Campbell v. Hillman, 15 B. Mon. 508; Allen v. Hartfield, 76 Ill. 358; Peck v. Cooper, 112 id. 192.
    Courts of equity will apply the same rule. Reed v. Peterson, 95 Ill. 288; Ackerman v. Halsey, 37 N. J. Eq. 356; Arnot v. Biscoe, 1 Ves. Sr. 95 ; Seddon v. Connell, 10 Sim. 86; Thompson on Liability of Officers and Agents of Corporations, chap. 3, notes, secs. 4, 21, p. 355.
   Mr. Justice Scholfield

delivered the opinion of the Court:

We have not had the benefit of any argument, in the present case, on behalf of the defendants in error, and we may, therefore, have misapprehended some of the facts; but as we have been able to gather them from the abstract and argument of plaintiffs in error, they are, so far as important to any question to be considered by us, in brief, as follows:

The Woodruff heirs owned a tract of land adjoining, or at least in the near vicinity of, the town of Marseilles, in La Salle county, which they contracted to sell and convey, for a consideration to be thereafter paid, to Roderick Clark. Clark was one of the organizers and incorporators of “The Marseilles Land and Water Power Company,” and on the 2d of April, A. D. 1867, he conveyed the tract to that company. In June of that year the company caused the tract to be laid off into lots, and platted, and in that and the next -succeeding year the complainants became the owners of certain of these lots through purchases from the company for valuable considerations paid, and title was conveyed to them by warranty deeds of the company. The payments not having been made to the Woodruff heirs for the tract of land, as provided for by their contract with Clark, on the 3d of October, A. D. 1878, they filed their bill in chancery in the circuit court of La Salle county, against the Marseilles Land and Water Power Company and the complainants and others, praying that it be decreed that the amount due on the contract with Clark be paid within a day to be named, and that in default, the company’s rights thereunder be terminated, and the parties in possession surrender that possession. Decree was rendered on the 10th of January, A. D. 1881, in conformity with the prayer of the bill; and the amount due not being paid, as provided by the decree, on the 18th of January, A. D. 1881, it was finally decreed that complainants in the present suit surrender possession, etc.

Amzi F. Jackson was a director in the Marseilles Land and Water Power Company from 1875, and the president of that ■company from April, 1880. While acting as director and president of the company, and after the complainants in the present suit had been served with summons in the suit by the Woodruff heirs, against them and the Marseilles Land and Water Power Company, they applied to him to know, in substance and effect, whether the company would .protect them in that suit, and what steps they should take to protect their rights to the property they respectively held under their several warranty deeds from that company, and they were assured by him that the company would protect their rights, and that "they should pay no attention to the suit. Belying on this assurance, complainants made no defence to that suit, and made no effort to pay the money found due by the decree. A portion of the Woodruff heirs conveyed their interest in the tract to Barnes, on the 23d of December, A. D. 1880, and on the 29th of October, A. D. 1881, Barnes and the remaining WoodTuff heirs sold and conveyed to Jackson. A receiver of the Marseilles Land and Water Power Company was appointed on the 30th of December, A. D. 1880. The present bill was filed on the 29th of September, A. D. 1882, and summons was issued and served the same day, and on the 3d of November, A. D. 1882, Amzi F. Jackson conveyed to Hiram Jackson. The court below, on hearing, decreed that the bill be dismissed.

A party may voluntarily assume a confidential relation "towards another, and if he shall do so, he can not thereafter do any act for his own gain at the expense of that relation. Kerr ■on Fraud and Mistake, (Bump’s ed.) 151, 179; Reed et al. v. Peterson, 91 Ill. 295. Where “a person obtains the legal title to property by virtue of a confidential relation and influence, ■under such circumstances that he ought not, according to the rules of equity and good conscience as administered in chancery, to hold and enjoy the beneficial interests of the property, courts of equity, in order to administer complete justice between the parties, will raise a trust, by construction, out of such circumstances or relations, and this trust they will fasten upon the conscience of the offending party, and will convert him into a trustee of the legal title, and order him to hold it, or to execute the trust in such manner as to protect the rights of the defrauded party, and promote the safety and interests of society.” Perry on Trusts, (1st ed.) 166. See, also, Kerr on Fraud and Mistake, (Bump’s ed.) 150; Beach et al. v. Dyer et al. 93 Ill. 295; Doyle v. Wiley, 15 id. 576 ; Trotter v. Smith et al. 59 id. 240; Tiffany & Bullard on Trusts, 113, 115, 120.

It was the duty of the Marseilles Land and Water Power-Company to protect the interests of the complainants, because it had so covenanted. The position of Jackson was such that he could have known, and it was his duty to know, whether the company was able to do so or not. The complainants were therefore authorized to believe and rely upon his representations in that regard. By directing them to make no defence, but to trust to the company, he voluntarily assumed a confidential relation; and it would seem to be a palpable violation of the principles of natural justice, that he, having induced inaction on their part until it was too late to preserve their rights, should be allowed to then become, himself, the purchaser of the property. It is equitable that as respects their rights, the title to the property should be held to be in precisely the same situation that it was when he assured the complainants that their rights should be protected. What rights they then had they now have. They then would have been entitled to have had an account of all that had been paid, and that in selling the property for the payment of the balance due, that, part then unsold by the company should be first sold, and should there still remain a balance, the lots should be sold for its payment in the inverse order of their alienation, as in the case of successive sales of lands mortgaged when foreclosure is decreed. Iglehart et al. v. Crane et al. 42 Ill. 261.

The decree is reversed, and the cause remanded for further proceedings consistent with this opinion.

Decree reversed.