author: Mr. Justice Scholfield

text:
    The Howe Machine Company v. William G. Hickox et al.

      Filed at Ottawa May 10, 1883.

    1. Set-off—of judgments between different parties—whether set off at law, or only in equity. Judgments not between the same parties can not be set off at law, and. it devolves upon the party seeking to set off a judgment in his favor against A and B, as to a judgment by A for the use of 0, against such party complainant, to §how some equitable ground for being protected against the judgment so held by A. It is not enough that complainant may have shown his rights are equal to those of C, the beneficial plaintiff in that judgment. Unless the complainant can show they were superior to any equitable claim which could be urged in favor of the beneficial plaintiff, he can not succeed.
    2. Assignee of contract—whether chargeable with notice of equities between his assignor and the other party to the contract. A contract was made between a machine company for the closing up of the business between it and A and B, in which the company agreed to pay A two dollars for each sewing machine sold by him, or upon a lease in certain territory, provided A should devote his time and best energies to the sale of such-machines, and A assigned and sold to 0 all his rights and demands under the contract. It was held, on a bill by the machine company to have a judgment recovered by A for the use of 0 set off against a judgment recovered by the company against A and B for a larger sum in a different State, that 0, the assignee of A, was only required to know the terms of the contract of A assigned to him, and the rights of the parties thereunder, but was not bound to take notice of the equities of the company against A and B, or of the judgment against them, thus treating the agreement between the company and A and B as constituting two distinct contracts, one with A and B, and the other with A.
    3. Contract—whether joint or several. Where the language of a contract is capable of being so construed, it will be taken to be joint or several, according to the interest of the covenantees; and when the legal interest and cause of action of the covenantees are several, they should sue separately, though the covenant be in joint terms.
    4. Same—where two in one writing. A machine company entered into a written agreement with A and B, which provided for the closing up of an existing business arrangement between the company and A and B, and the carrying on of a new business by A for the company. It was held, that there were two distinct contracts, the one between the company and both A and B, and the other with A, as much so as if written on separate papers, and that the one had no connection with the other, and that A might assign his demands on the company under his contract, unaffected by the equities of the company against A and B, when the assignee had no notice in fact of such equities.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. William H. Babnum, Judge, presiding.
    This was a bill in chancery, in the Cook circuit court, by appellant against appellees, and as the bill was amended, the substantial allegations are as follows : That on May 23, 1878, appellant recovered a judgment in the Supreme Court of New York for $38,314.22 against William C. Hickox and Joel M. Hickox, upon which execution was issued immediately, and returned nulla bona; that the judgment has never been paid, and that both said judgment debtors have been, since the rendition of the judgment, insolvent; that at the October term, 1878, of the Cook circuit court, a suit was commenced on the law side, by William C. Hickox, for the use of I. B. Hickox, against complainant, claiming that there was due William C. Hickox from complainant $2300, under the following contract:

      “Memorandum of agreement made this 3d day of March, A. D. 1874, for the closing of the business now existing between the Howe Machine Company, a corporation created under and by virtue of the statutes of the State of Connecticut, party of the first part, and W. C. and J. M. Hickox, of the city of New York, parties of the second part:
    “In which it is agreed by the party of the first part to take from the parties of the second part all the machines, parts of machines, fixtures, etc., which they have on hand, or which may be returned, from whatever cause, at the price they were consigned, which is forty per cent from retail price, and all other merchandise at the price it cost the party of the second part; this includes second-hand machines, horse and harness, parts of counter, office fixtures, etc. It is also agreed that the party of the first part shall take the following accounts: G. W. Bumble, Fuller & Wood, Brooklyn office and Williamsburgh office; also J. M. Hickox account, which releases him from future liability for the same. In the closing of their business by the party of the second part, it is agreed by the party of the first part to allow the party of the second part the office desk room they now occupy, free. The closing of the business is to be conducted at the expense of the party of the second part, with the exception that the party of the first part are to let the collectors which make collections in Brooklyn and Williamsburgh, make what collections they may in said Brooklyn and Williamsburg for the party of the second part, without charge to the party of the second part herein. While the parties of the second part are closing out their business, which is to be limited to the first of May, 1875, the party of the first part is to allow W. C. Hickox, one of the parties of the second part, two (2) dollars on each and every Elias or A. B. Howe sewing machine sold, either for cash or upon a lease, in the territory now controlled by the parties of the second part, (provided W. C. Hickox, one of the parties of the second part, shall devote his time and best energies to the sale of said machines,) which territory includes New York City, Brooklyn, Williams-burgh, Staten Island, and the tract they now control for South America, and all other sales for that section that do not go to a regular agent of the Howe Machine Company, and all sales at retail going to whatever section, which amount is due W. C. Hickox, one of the parties of the second part, when there has been ten or more dollars paid on said sale or lease, except on machines that are lost before the second payment has been made; in all such eases the two (2) dollars are to be paid back to the party of the first part.
    “The above in no way refers to machines sold by the Howe Machine Company going to agents outside of the territory above mentioned, and to be sold outside. W. C. Hickox, in devoting his time and best energies to the sale of the machines in said territory, has the entire control of the men and women in his department, and the right to hire and discharge them, but will not keep any person or persons that are objectionable to the party of the first part, nor be compelled to keep any that are objectionable to the parties of the second part.
    “It is also agreed that the party of the first part will allow the parties of the second part to use the men that deliver machines to bring in such machines as may have to be returned, which are now outstanding, without charge. The party of the first part can terminate this contract at any time by taking from the parties of the second part all unpaid leases at their face which they may have on hand.
    The Howe Machine Co.
    Levi Stockwell, Treas.

    W. C. Hickox,
    J. M. Hickox.
    “Signed, sealed and delivered in presence of witness.
    [seal.] ' J. B. Phipps. ”
    That the judgment against William C. and Joel M. Hickox represents the amount found due from them under said contract, but that the contract, and the rights of William C. Hickox thereunder, were attempted to be assigned by the following words indorsed thereon: v
    “For value received I hereby sell and assign to I. B. Hickox all my claims and demands, founded on the within contract, against the Howe Machine Company, and authorize him to use my name in collecting and settling the same.
    “Chicago, Aug. 23, 1878. W. C. Hickox.”
    That the right of action claimed to exist in favor of said William C. Hickox, under said contract, is based upon a clause incorporated therein, and for services performed thereunder, granting certain rights and privileges to William C. Hickox, individually, and which services, it is claimed, were adjudicated in the suit resulting in said judgment; sets out and repeats the clause beginning with the words, “while the parties of the second part are closing out their business, ” and ending with the words, “nor be compelled to keep any that are objectionable to the parties of the second part;” that the contract was entered into and the services performed by the said William C. Hickox in the State of New York, and while he was a resident of that State; that neither William C. nor Joel M. Hickox is a resident of Illinois, and can not be served with summons; that until the commencement of the suit at law at the October term, 1878, complainant did not know of any claim asserted by William C. Hickox under said clause, but believed that the same had been adjusted and settled, and were represented by and merged in said judgment; that I. B. Hickox, at the time he took said assignment, had full notice of said judgment, and that the same was unpaid, and that said William C. and Joel M. Hickox were insolvent; that complainant plead a set-off of said judgment in said action' at law, which plea was held bad on demurrer, on account of said judgment having been rendered jointly against said William C. Hickox, and another, a stranger to said suit at law; that knowing the hopeless insolvency of said William C, and Joel M. Hickox, offers to allow said claim of $2300, provided an equal portion of the said judgment may be received and allowed as a set-off thereto; prays that William 0. and I. B. Hickox be forever enjoined from prosecuting said suit at law, and that the claim of said William C. Hickox be set off and allowed pro tanto in satisfaction of said judgment, and that thereupon the claim of said William C. and 1. B. Hickox be canceled, and forever afterwards held for naught; prayer for summons against William G., Joel M. and I. B. Hickox, and prayer for general relief.
    The answer of the defendants admits recovery of judgment as alleged in the bill, but avers that it was obtained by fraud and collusion between complainant’s and defendants’ attorneys; that in equity William C. and Joel M. Hickox are not indebted to complainant in any sum whatever; admits that judgment is unpaid; admits bringing of suit at law by William C. Hickox for use of I. B. Hickox, as alleged in the bill ; admits the assignment, as alleged; denies that William C. and Joel M. Hickox were non-residents at the time of filing the amended bill; denies that I. B. Hickox, at the time of taking the said assignment, had any notice of said judgment, or that the same was unsatisfied, or that he knew of the insolvency of William C. and JoelM. Hickox; admits the plea of set-off at law, and that it was adjudged bad on demurrer ; avers that the actual consideration of said assignment was $2200 in cash, loaned by said I. B. Hickox to said William G. Hickox before the rendition of said judgment, all of which was due and unpaid prior to the time of the rendition of said judgment. To this answer there was a general replication.
    Upon the hearing appellant gave in evidence the judgment roll of the Supreme Court of New York, for the city and county of New York, in a case wherein the Howe Machine Company was plaintiff, and William C. Hickox and Joel M. Hickox were defendants. It sets out, among other things, the contract of March 3, 1874, before set out in the amended bill of complaint; referee’s report finding due $31,077.99, and interest from April 13, 1875, and costs, and judgment thereon. It was then admitted by appellees’ attorneys, as evidence on behalf of appellant, that William C. Hickox and Joel M. Hickox, defendants in said judgment and appellees here, were, at the time of the rendition of said judgment in the Supreme Court of New York, and ever since have been, insolvent.
    On behalf of appellees, William C. Hickox, one of the appel-. lees, testified that he signed the assignment indorsed on- the back of the agreement set out in the bill, on or about the day of its date, at the office of E. A. Sherburne, Esq., attorney for I. B. Hickox, and delivered the same to said Sherburne, as such attorney; that at that time I. B. Hickox did not know of any judgment recovered against witness and Joel M. Hickox by the Howe Machine Company, in New York; that said assignment was made pursuant to an agreement before then made in regard to the matter between witness and I. B. Hickox, and that I. B. Hickox knew nothing whatever of there being any indebtedness or claims of indebtedness in favor of complainant against William C. and Joel M. Hickox, or either of them; that, said assignment was in consideration of the sum of $1100, of which $650 had been paid prior to said assignment, and the remainder has since been paid; that witness and Joel M. Hickox both resided in Chicago at the time this suit was brought, and have ever since resided there.
    The foregoing was all the evidence heard or offered on the hearing. The court thereupon decreed that appellant’s bill be dismissed. Appeal was prosecuted from that decree to the Appellate Court for the First District. That court affirmed the decree of the circuit court, and the present appeal is from that judgment.

      Mr. Jesse B. Barton, for the appellant :
    As the judgment in New York against William C. and Joel M. Hickox, and the claim on which this suit was brought, arose under the same contract, the one demand was properly the subject of set-off against the other. But the court held that the judgment being joint, could not be set off against the claim, which was several. Equity widens the rule of law, and on account of the insolvency of Joel M. Hickox should have considered that from the date of the judgment it was a several liability of William C. Hickox, which would create that mutuality necessary in cases of set-off.
    Had the company sued in Cook county on the New York judgment either William C. Hickox alone, or jointly with Joel M., then William C.’s claim under the contract could have been set off. Stewart, use, etc. v. Coulter, 12 S. & R. 252.
    In equity, a joint judgment can be enforced against one debtor to the exclusion of the others, upon a showing of the insolvency of all except the one whose property is pursued. Van Cleef v. Sickles, 5 Paige, 301; Commercial Bank v. Meash, 7 id. 449; 2 Waite’s Actions, 422; Waterman on Set-off, 267, 450, 455; Hughes v. Trahern, 64 Ill. 48; Raleigh v. Raleigh, 35 id. 513 ; Scott v. Shreeve, 12 Wheat. 605 ; Gay et al. v. Gay, 10 Paige, 369; Doane v. Walker, 101 Ill. 628.
    Nor can an assignee of a non-negotiable instrument be considered an innocent purchaser entitled to protection, although he may have paid full value, and in good faith. Parmely v. Buckley, 103 Ill. 115; Himrod v. Baugh, 85 id. 435; Tromer v. Railroad Co. 95 id. 134; Ellis v. Sisson, 96 id. 105; Bissell v. Curran, 69 id. 20.
    Mr. E. A. Sherburne, for the appellees:
    We admit, as is said in Greene v. Darling, 5 Mason, 214, that when a chose in action is assigned, the assignee takes it subject to all the equities existing between the original parties as to that very chose in action so assigned, hut not that he takes it subject to all equities existing between the parties as to other debts and transactions.
    The right of William C. Hickox in the contract set out in the bill to be paid individually for his services, was as distinct and separate from the joint rights of William C. and Joel M. thereunder, as if they had been put upon different papers. Greene v. Darling, 5 Mason, 214.
    Where the legal interest and cause of action of covenantees are several, each may and should sue separately for the particular damage resulting to him individually, although the covenant be in its terms joint. (1 Chitty’s Pleading, 11.) And when a joint covenantee may sue alone, he must sue alone. (Ibid. 9, note y; Foley v. Addenbrook, 4 Q. B. 197.) And a bona fide assignment of this covenant cut off any right to set off this judgment against it. Howe v. Sheppard, 2 Sum. 418; Ullman v. Crane & Kline, 87 Ill. 268; Hughes v. Trahern, 64 id. 48.
   Mr. Justice Scholfield

delivered the opinion of the Court:

Since the judgments sought to be set off are not between the same parties, it is clear there could be no set-off at law, and it devolves upon appellant, therefore, to show some equitable ground for being protected against the judgment of William C. Hickox. (Raleigh et al. v. Raleigh, 35 Ill. 512.) It is not enough, here, that appellant may have shown its rights were equal to those of I. B. Hickox; unless it has shown they were superior to any equitable claim which can be urged in his favor, appellant can not succeed. (Holbrook v. Receivers, 6 Paige, 231; Hannon v. Williams, (7 Stew.) 34 N. J. Eq. 255.) The allegation of the bill that I. B. Hickox had notice of the existence of appellant’s judgment when William C. Hickox assigned his interest in the contract to him, is not only unsustained by the proof, but the reverse was affirmatively proven. William C. Hickox expressly testified that I. B. Hickox had no such notice, and there was no other evidence- upon the question. The question of whether I. B. Hickox was a purchaser for value, in the sense entitling him to protection as against any equities in favor of appellant, is also put at rest by the evidence of William C. Hickox, no countervailing evidence having been given. He testified that the assignment was made pursuant to a previous agreement, whereby I. B. Hickox agreed to pay him (William C.) $1100 therefor, and-that of this amount $650 was paid before the assignment was made, and the balance was paid afterwards.

But was I. B. Hickox put upon notice of the equities of appellant by virtue of the terms of the contract assigned' to him ? At most that could but require him to know the terms of - that contract, and the rights of the parties thereunder. It could not require him to know the terms of a different contract with other parties, and the rights of the respective parties thereunder. As was observed in Greene v. Darling, 5 Mason, 214: “Where a chose in action is assigned, it may be admitted that the assignee takes it subject to all the equities existing between the original parties as to that very chose in action so assigned. But that is very different from admitting that he takes it subject to all equities subsisting between the parties as to other debts and transactions.”

It is quite true that the judgment obtained by appellant in the Supreme Court of New York was under a contract evidenced by a writing on the same piece of paper as that on which the contract assigned by William C. to I. B. Hickox, and under which the judgment obtained in the Cook circuit court was written; but it is not true that both judgments are under the same contract. In construing instruments of • this character the question is, what interest was intended to be vested in the respective parties ? And hence, “where the language of the covenant is capable of being so construed, it shall be taken to be joint or several, according to the interest of the covenantees.” (Chitty on Contracts, (11th Am. ed.) 1343.) “The result of the cases, ” observed Lord Denman, Ch. J., in Foley v. Addenbrook, 4 Ad. & El. (N. S.) 197, (45 Eng. C. L. 197,) “appears to be, that where the legal interest and cause of action of the covenantees are several, they should sue separately, though the covenant be in joint terms.” See note v, Chitty on Contracts, ubi supra. See, also, to like effect, 1 William’s Saunders, 155; 1 Chitty’s Pleading, *11, 10.

The contract under which the judgment in favor of appellant in the Supreme Court of New York was obtained, was with William C. Hickox and Joel M. Hickox, and it related entirely “to the closing of the business now existing between the Howe Machine Company, * * * and W. C. Hickox and J. M. Hickox. ” But the contract assigned by William C. to I. B. Hickox, and under which the judgment in the Cook circuit court was obtained, had nothing to do with the “closing of the business between the Howe Machine Company and W. C. and J. M. Hickox, ” but related exclusively to the employment of W. C. Hickox by the Howe Machine Company to sell machines within a designated territory, and during a stipulated time. There is not the slightest pretense for contending that J. M. Hickox was in anywise responsible for the conduct of W. C. Hickox in this regard, or entitled to participate in the profits he might thereby make. Two separate and wholly distinct subject matters were agreed to,— one, the closing up of an existing business, and the other, the carrying oil .of a new business. Had the agreements been written on separate papers, and separately signed, their disconnection would have been obvious to every intelligent apprehension. And yet the fact they are written on one piece of paper can make no difference.- If, in the minds of the parties, they are separate and distinct in the one case,— and this is apparent from the language employed,—they must be so in the other. The only real difficulty is in arriv,ing at the intention of the parties.

We see no cause to disturb the decree below. The case is not brought within any of the exceptions laid down in Hughes v. Trahern, Admx. 64 Ill. 48. See, also, Ullman v. Kline et al. 87 Ill. 268.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Sheldon

license: Public Domain

text:
    Margaret M. Chappell v. Samuel Spire et al.

      Filed at Ottawa May 10, 1883.

    1. Tax title—of the notice required to be given by the purchaser—by whom to be served—and upon whom. A notice of a purchase at tax sale, addressed only to the then present owner of the land, and served upon him alone, is insufficient to authorize a sheriffs deed upon the certificate of purchase, where it is shown that the land was taxed for the year for which it was sold, in the name of another, and that others were in occupancy of the same at and before the service of the notice.
    2. An affidavit showing the service of notice of the purchase of land for taxes, etc., on the proper parties, which also shows that such notice was served before the assignee giving the same had procured an assignment of the certificate of purchase, is not sufficient. Service of the notice by a person who, at some time afterward, becomes an assignee, is not sufficient to authorize a sheriff’s deed.
    3. It is made by law an express prerequisite and condition precedent to the execution of any tax deed, that the required notice shall be served by the purchaser or Ips assignee upon the person in whose name the taxes were assessed, and upon all persons in possession of the premises. A tax title depends for its validity upon a strict compliance with the statute.
    4. Homestead—as against purchaser under judgment. Proof of the existence of facts sufficient to show a right of homestead on the trial of an action of ejectment by the purchaser of the premises under execution, at a date subsequent to that of the judgment, is not a defence to the action. To avail against the sheriff’s deed the homestead right must have existed at the time the judgment became a lien.
    Appeal from the Circuit Court of Kane county; the Hon. Chaeles Kellum, Judge, presiding.

      Mr. Frank Crosby, for the appellant.
    Mr. R. N. Botsford, and Mr. A. B. Coon, for the appellees.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an action of ejectment, brought by John Spire, against Margaret M. Chappell and others, to recover possession of 'certain premises situate in Elgin, in Kane county. It was admitted that on and prior to February 25,1875, George W. Eenwick was the owner in fee of the premises. On that day Spire recovered a judgment in the circuit court of Kane county against Eenwick for $2428.25, and under an execution sale upon that judgment a sheriff’s deed of the premises was made to Spire on May 9, 1877, which made a prima facie title in Spire. On March 10, 1875, Eenwick made a deed for the premises to Benjamin Burritt, who, on the same day, executed a deed therefor to Catharine Eenwick, wife of George W. Eenwick.

The defendant’s claim of title was under a tax deed for the premises, made under a tax sale thereof for the taxes of 1875. The tax deed, bearing date July 3, 1878, was made to defendant, Margaret M. Chappell, as assignee, from Benjamin Burritt, of the tax sale certificate. To show the required notice of the purchase at tax sale, the defendants gave in evidence a written notice, signed by B. Burritt, and addressed to John Spire, of the purchase by Burritt, on June 19, 1876, of the premises “assessed in the name of G. W. Eenwick, now owned by John Spire, for the sum of $21.40, tax and costs, and that the time of redemption will expire on the 19th day of June, 1878. The sale was for the tax levied for the year 1875.” Also, an affidavit of Burritt of the service of the notice by him on Spire on February 7,1878. This notice is insufficient, in its being served upon the owner of the premises only, and not upon the occupants, as also upon the person in whose name the premises were taxed. The evidence showed that they were taxed in the name of Mrs. George W. Eenwick.

The last clause of section 5, article 9, of the constitution of 1870, upon this subject, requires: “And the General Assembly shall provide by law for reasonable notice to be given to the owners or parties interested, by publication or otherwise, of the fact of the sale of the property for such taxes or assessments, and when the time of redemption shall expire: Provided, that occupants shall in all cases be served with personal notice before the time of redemption expires.” It is the statutory provision, (Eev. Stat. 1874, p. 893, sec. 216,) “hereafter no purchaser, or assignee of such purchaser, of any land, town or city lot, at any sale of lands or lots for taxes or special assessments due, * * * shall be entitled to a deed for the- lands or lots so purchased until the following conditions have been complied with, to-wit: Such purchaser or assignee shall serve, or cause to be served, a written or printed, or partly written and partly printed, notice of such purchase on every person in actual possession or occupancy of such land or lot, and also the person in whose name the same was taxed or specially assessed, * " * * in which notice he shall state when he purchased the land or lot, in whose name taxed, ” etc.

Defendants further put in evidence an affidavit of Margaret M. Chappell, made by the name of “Maggie M. Chappell,” dated July 3, 1878, stating that B. Burritt, on June 19, 1876, at tax sale, bought the premises; that he assigned his certificate of purchase to the affiant, and that affiant, on February 11, 1878, caused to be served a written notice of such purehasé upon George W. Eenwick and Mrs. George W. Eenwick, the only persons then in actual possession or occupancy of said premises, and also upon Mrs. George W. Eenwick, the person in whose name the same were taxed. This affidavit of notice supplies the defects named in the notice which was served by Burritt, but, so far as appears from the evidence, this second notice was served by a person who, at the time of the service, was an entire stranger, not in any way connected with or having any interest in the premises, or such tax sale, or tax certificate of purchase. The tax certificate of purchase by Burritt bears upon it the assignment thereof by Burritt to Margaret M. Chappell, made on April 8, 1878, so that the service of notice by Margaret M. Chappell, on February 11, 1878, was not by the purchaser at the tax sale or his assignee, as she did not become such assignee until April 8, 1878. Although the affidavit of Mrs. Chappell, made July 3, 1878, states Burritt assigned the certificate of purchase to her, it does not mention at what time. It is made by law, as we have seen, an express prerequisite and a condition precedent to the execution of any tax deed, that the required notice shall be served, or caused to be served, by the purchaser at the tax sale or his assignee. The requisite notice here was not served by the purchaser, nor by his assignee, at the time of service. Service of the notice by a person who at some time afterwards became such assignee, we do not regard as sufficient. A tax title depends for its validity upon a strict compliance with the statute. (Altes v. Hinckler, 36 Ill. 265.) In this respect of notice the tax deed fails to make title.

There is some claim of a homestead right set up in the premises. All the record shows in this respect is, that on June 19, 1876, the date of the tax sale, George W. Benwiek and his wife, two co-defendants with Margaret M. Chappell, their daughter, were living together with her, as one family, upon the premises • in controversy. But that was not evidence of such a condition at a prior time, on February 25, 1875, when the judgment was obtained and became a lien upon the premises. There must have been the existence of the homestead right at that time,—the time when the judgment became a lien,—to make the homestead right of avail against the sheriff’s deed under the judgment. There is no evidence of a homestead right at that time.

We think the judgment was right, upon the evidence, and it is affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    Levi A. Richardson et al. v. Ambrose S. Hadsall.

      Filed at Ottawa May 10, 1883.

    1. Witness—competency—defendant in chancery against an executor seeking a foreclosure. On bill by an executor to foreclose a mortgage given to his intestate, a defendant, if a necessary party to the bill, is incompetent to testify as a witness to payments made by the mortgagor, his co-defendant, to the testator.
    2. Parties—on bill to foreclose. On bill to foreclose a mortgage, all persons interested in the mortgaged premises should be made parties. A tenant in possession under the mortgagor is a necessary party defendant. If not made a party, his interest will not be cut off by the decree.
    3. Writ of possession—on failure to redeem from sale on foreclosure—and against whom. Where no redemption is had from a foreclosure sale, the purchaser, after taking out a deed, is entitled to a writ of possession, but it can only be issued against the defendants in the bill, and those claiming under them, after the suit was commenced.
    4. Evidence—credit indorsed on note may be explained. An indorsement on the back of a note, of money received, is but a receipt for money, and open to explanation, the same as any other receipt. If a credit is indorsed for more money than was actually paid, the holder of the note may show that fact, and the true amount will be allowed, and no more.
    5. Gift—proposed and intended gift not binding. Where a man made an indorsement upon a mortgage due him from a third person, “I hereby agree to allow M. K., wife of A. B., a niece of mine, $1200 in my will, and if her equal share should not amount to that sum, to take the amount out of the whole pile,” but died without making such provision in his will: Held, that this showed a clear intent to make a gift in the future by will, but so long as it was unexecuted, and based upon no consideration, it could not be binding on the party or his executor.

      6. Chancery— decree making no disposition as to one defendant. If one of the defendants in a bill to foreclose a mortgage has no interest in the subject matter of the litigation, the better practice is to dismiss him out of the case on the final hearing; but if this is not done, and no decree is rendered against him, he will be in no position to complain, as he is not injured by the irregularity.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Will county; the Hon. F. Goodspeed, Judge, presiding.
    Mr. Stephen R. Moore, and Messrs. W. H. & H. L. Richardson, for the appellants:
    Alfred G. Richardson was not made a party to the original bill, but was made so by the amended bill, to cut off his testimony. He filed a disclaimer of any interest, and testified he had none. He was not a proper party, and was competent to testify for his co-defendants. Sproule et al. v. Samuel et al. 4 Scam. 135; Dyer v. Martin et al. id. 146; Smalley et al. v. Ellet, 36 Ill. 500.
    There was an indorsement of $2200 on the larger note,— afterwards erased, and $1000 substituted; also, an indorsement of $440.70, which was erased, and $343 substituted, without the maker’s consent. Like a receipt, if expunged, the debtor will still have the benefit of it if he can establish the contents. Bryant v. Dyer, 28 Ill. 188.
    The fact that credits are indorsed on a note is not proof of its payment, unless it be shown they were made by the party owning the note, or by his authority. Ray v. Bell, 24 Ill. 444; 5 Mich. 171; Ingraham v. Marshall, 16 Ind. 444.
    No decree was taken against Frank Richardson. This should have been done, or he dismissed from the case, with his costs.
    Mr. G. W. Brown, for the appellee:
    Even if Alfred G. Richardson had not filed an answer after his disclaimer, if a proper party to the suit, the decree would go against him as a defendant, according to the nature of the case. (1 Barb. Ch. 172.) He being a proper party, his disclaimer would not render him a competent witness against a conservator or an executor, otherwise section 7, chapter 51, of the Revised Statutes, would be evaded with impunity. But his disclaimer was not under oath, as required, and was not signed by him in person.
    It is a rule of equity pleading that all persons having an interest in the subject matter of a suit in equity, which may be injuriously affected by its termination, are necessary, and must be made parties. Hopkins v. Roseclare Lead Co. 72 Ill. 373; Smith v. Rotan, 44 id. 506; Hassett v. Ridgely, 49 id. 197; Alexander v. Hoffman, 70 id. 114; Moore v. Munn, 69 id. 591; Bruff v. Leder, 5 Gilm. 210; Spear v. Campbell, 4 Scam. 424.
    It is not pretended there was any other consideration for the credit of $2200 indorsed than $1000 paid. The testator intended to give Martha Richardson, wife of Amasa Richardson, .$1200. This, at th,e most, was merely an unexecuted gift, and incomplete. Blanchard v. Williamson, 70 Ill. 647.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill to foreclose a mortgage, executed by Levi A. Richardson to William Hadsall, December 1, 1865, on certain lands in Will county, to secure the payment of two certain jpromissory notes, amounting to the sum of $2360.29. The defendants put in an answer to the bill, in which the execution of the notes and mortgage was admitted, but they set up certain payments which they allege extinguished the notes and mortgage, and leave a balance due them, amounting, in the aggregate, to $1362. The defendants also filed a cross-bill, in which they set up payment of the notes and mortgage, and they pray for a decree cancelling the mortgage, and also a decree against complainant for any amount that may be found due defendants. The cause was referred to the master to state the account between the parties, and he filed a report showing that there was due complainant on the notes and mortgage, after deducting all credits due defendants, the sum of $2656.29. Exceptions were filed to the report, but were all overruled, and a decree of sale rendered for the amount found to be due complainant. This decree, on appeal, was affirmed in the Appellate Court.

Alfred G. Richardson testified to certain payments which defendants claim should be allowed on the mortgage, but the testimony of this witness was rejected by the court, on the ground that he was a party defendant, and interested in the event thereof, and this is relied upon as error. The witness was made a party defendant to the bill, and the admissibility of his evidence depended upon whether he was a necessary party. If he was, as complainant sued as executor, under section 2, chapter 51, of the Revised Statutes, he could not testify in his own behalf. If the witness had an interest in the mortgaged premises he was a proper party to the bill, as the rule is uniform, on a bill to foreclose a mortgage all persons interested in the mortgaged premises should be made parties. It is claimed by appellants that A. G. Richardson had no interest in the premises, but upon his cross-examination it appears that he has lived on the premises for a number of years, and the only reasonable conclusion to be reached from what he says, is, that he is a tenant in possession. If we are correct in this, he was a necessary party to the bill. He had an interest in the premises which the decree would not cut off unless he was a party. Upon a sale of the mortgaged premises, the purchaser, in case no redemption was made, would be entitled to a writ of possession. But a writ of possession could only issue against the defendants in the bill, and those claiming under ihem, after the suit was commenced, hence the necessity of making all persons in possession of the premises parties to the bill, in order that they may be concluded by the decree, and the title divested, whatever it may be.

It is next urged that the master in chancery did not take into consideration the indorsements on the notes in making his report. This position is, no doubt, founded upon a misapprehension of the report. As we understand the report of the master, all credits on the notes were allowed. This will appear from the following statement contained in the report itself: “In stating the account and making the foregoing ' report he considered all the indorsements as they appear on the notes in controversy, and finds that said indorsements are included in and a part of the items claimed in the amended answer, and have been fully allowed (except the two items in statement marked <B,’ cash, 1877, $20, and Sept. 13, 1878, $15, which were indorsed on notes and not claimed in answer, but were allowed.) ” If. this statement is correct, as it seems to be from the credits allowed, then it is apparent that the master did allow defendants for all credits indorsed on the notes.

On January 30, 1874, William Richardson paid Hadsall, the mortgagee, on the mortgage indebtedness, $1000, and at the request of the mortgagee, S. R-. Moore indorsed upon the larger one of the two notes a credit of $2200. Subsequently this was erased by the mortgagee, and in lieu thereof a true credit of $1000 was indorsed on the note. In stating the account the master allowed the defendants for the true amount actually paid, but refused to allow the $1200 claimed by the defendants, and this is relied upon as error. We perceive no meritorious ground upon which it can be held that defendants should be allowed for more than was actually paid upon the note. An indorsement of money received, upon the back of a promissory note, is but a receipt for money received, and open to explanation, as any other receipt, and if, as a matter of fact, the receipt was written for more money than was actually paid, complainant had the right to establish that fact on the trial, so that the court might allow the true amount paid. Indeed, the testimony in the record fully explains the transaction. Martha Richardson was a niece of the mortgagee, and she had purchased the mortgaged premises of her son, Levi Richardson. The mortgagee being a very old man, without wife or children, intended, no doubt, to make a gift of $1200 to his niece, to take effect in the future. This is evident from the indorsement made by the mortgagee himself on the back of the mortgage, on the same day Moore made the indorsement on the note. It is as follows : “I hereby agree to allow Martha Richardson, wife of Amasa Richardson, a niece of mine, $1200 in my will, and if her equal share should not amount to that sum, to take the amount out of the whole pile.” Here was a clear intent to make a gift in the future by will, but so long as the proposed gift was unexecuted, and based upon no consideration, it could not be binding upon Hadsall or his executor,—in other words, the mortgagee proposed to give his niece $1200 by will, part of the note secured by mortgage, but as the intention to make the gift was never carried into execution, the proposition was binding on no one.

It is also contended that the decree is erroneous, because no order is made in regard to Frank Richardson, who was one of the defendants to the bill. If this defendant had no interest in the subject matter of the, litigation, the better practice would have been to have dismissed him out of the case on the final hearing; but if that was not done, and no decree rendered against him, he is in no position to complain, as he has not been injured.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Walker

text:
    Richard Cole v. Henry Cole.

      Filed at Ottawa May 10, 1883.

    Specific performance—when it will he decreed. This casé turns upon the question whether the evidence is sufficient to establish the alleged contract sought to be enforced.
    Appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Mr. John T. Richards, for the appellant.
    Mr. J. W. Waughop, for the appellee.
   Mr. Justice Walker

delivered the opinion of the Court:

Appellant, Richard Cole, in the spring of 1875, was the owner of a number of small lots in Bridgeport, in the city of Chicago, which had cost him $200 or $250 each. At that time Henry Cole, appellee, a cousin, and William Cole, an aged uncle of appellant and appellee, were both working for appellant in his cooper shop. William Cole, the uncle, had boarded with appellant. Appellant proposed to appellee that if he would board the uncle for four years, he would- give him the lot in controversy. Appellee accepted the proposition, and the uncle went to and boarded with him. About two years later, appellant further proposed to appellee to buy an old barn and .move it on the lot, and fix it up for a dwelling, and as the consideration proposed that appellee should board the uncle for three and one-half years, and should give appellant a small building he owned on leased ground, at $200. This proposition was accepted, appellant getting the small building and aj)pellee the barn, which he moved on his lot, and fitted up for a dwelling. Appellee performed the contract by boarding the uncle for the full period of seven and one-half years. He took possession, moved into the house constructed of the barn, fenced the lot, and planted out trees, etc. After the first agreement was made, the uncle worked for appellant, who deducted the expenses of boarding and washing from the wages of the uncle. Appellee paid all taxes, assessments and insurance on the property. None of these agreements were reduced to writing. On this state of facts the Superior Court of Cook county decreed a specific performance of the agreement, and defendant below appeals, and urges a reversal.

Appellant claims that the agreement was to convey one-half of the lot to appellee, and the other half to William Cole, the uncle, or rather to them as tenants in common, whilst appellee contends it was to be conveyed to him. This is the only contest in the case.

No question is made that appellee has fully performed the contract. At the rate of $3.50 per week, which the evidence shows was low, with the cottage appellee let appellant have, he has paid him about $1600, whilst the evidence shows the lot, without improvements, was not worth, at any time, exceeding one-tliird of the sum paid. We say paid, because William Cole, the uncle, worked for appellant, who deducted the price of his board from his wages. Nor do we see any the slightest duty or obligation resting on appellee, more than appellant, to purchase and improve this lot, and donate one-half of it to the uncle. The ties of blood were equal upon both nephews, nor is other duty shown to rest upon appellee. Then, this being true, we can perceive no special motive to induce appellee to make such a contract. The probabilities that he did are all decidedly against the presumption he did, and to overcome it there should be clear and satisfactory evidence. There is nothing to show that William Cole paid, or in any manner contributed, a dollar to the purchase or improvement of the lot.

Both parties testify positively, and equally so, to their version of the transaction. Appellee’s testimony is corroborated by the three Hopkins, who swear that William Cole told them he was working to enable appellee to get a home, and they saw him often, and he never claimed any interest in the property. In what manner he was aiding appellee is not apparent, as appellant deducted his board from William Cole’s wages, and appellee received no benefit from his labor. The evidence of William Cole is confused, and favors appellee’s theory as much, or more, than that of appellant. He says he paid nothing for the property. He says the agreement was that appellee was to board him for the lot. He, however, claims he was to have half of the lot during his life, and appellee was to have it after his death. According to his version he seems to suppose appellee was to give him a life interest in the half of the lot for the privilege of boarding him seven and a half years for nothing, whilst he was paying appellant for the board.

We are strongly impressed that appellant has made no case for one-half of the lot to William Cole or himself. On that branch of' the case the evidence is in direct conflict, and when the inherent improbability that any man considered capable of transacting his own business would make such an unequal and unjust contract is considered, it produces a decided preponderance in favor of appellee’s version of the transaction. We are wholly unable to believe that appellee ever made such an agreement as that claimed by appellant. It is too unreasonable for intelligent belief.

The entire record considered, we are unable to perceive any error in the decree, and it must be affirmed.

Decree affirmed.


text:
    John Smith et al. v. John T. Long.

      Filed at Ottawa May 10, 1883.

    1. Practice in the Supreme Court—as to rulings in chancery in the admission or rejection of evidence. In chancery cases, the practice is not to reverse for erroneous rulings in the admission or exclusion of evidence, unless it is seen, after an inspection of the entire record, that different rulings might have induced a different decree.
    2. Where the entire record is before this court, embracing not only the evidence admitted, but also that excluded, unless it can see on such record that there is error in the decree below it will be affirmed.
    3. Witness—competency—of husband and wife, for and against each other. Husband and wife are competent witnesses for and against each other only in the cases mentioned in the exceptions to section 5 of the act relating to evidence. The words, “except in cases where the wife would, if unmarried,- be plaintiff or defendant, ” do not have reference to cases where the wife is subsequently divorced, or where her husband has died, but simply to cases where the proposed witness has never been married,—where the controversy does not concern a right resulting from marriage.

      4. On bill by a husband and wife to set aside their contract of sale and conveyance of the husband’s interest as heir in his grandfather’s estate, both real and personal, on the ground of fraud, the wife is not a competent witness for her husband.
    5. Same—attorney at law—when competent to testify as to facts. An attorney who is merely employed to draw up the necessary papers to consummate a contract to which the parties had agreed, no legal advice being asked or required, is, not privileged, and may testify as to what comes to his knowledge in connection with the transaction.
    6. Rescission of contract—placing the party in statu quo—exceptions to the rule. It is incumbent on a party seeking the rescission of an executed contract, to return, or offer to return, what he has received. He must place the opposite party in statu quo. There are exceptions to this rule, as, when that received is entirely worthless, or when, by reason of peculiar circumstances not chargeable to the fault of the party seeking to rescind, restoration of that received is impossible.
    Appeal from the Circuit Court of Warren county; the Hon. Abthub A. Smith, Judge, presiding.

      Mr. J. L. Dryden, and Mr. L. B. Cake, for the appellants:
    Louise Smith, wife, of complainant John Smith, and a proper party to the suit, was a competent witness, under the first exception in section 5, chapter 51, of the Bevised Statutes, “where the wife would, if unmarried, be plaintiff or defendant. ” The .fair construction of this clause is, if the husband were taken out of the way she should have such an interest in the subject matter of the suit as she could sue for or defend. If she was a proper party, the section referred to makes her a competent witness. Hackett v. Bonhill, 16 Wis. 496; Barnes v. Martin, 15 id. 264; Kavanaugh v. Jaynesville, 24 id. 618.
    This section has removed all disqualification on the ground of interest, and rendered every proper and necessary party to the suit a competent witness. Little v. Little, 13 Gray, 264; Schaffer v. Reuter, 37 Barb. 44; Marsh v. Potter, 30 id. 506; Chamberlin v. People, 23 N. Y. 85.
    The deposition of J. B. Johnson was improperly excluded. The employment of a scrivener or conveyancer, although an attorney, is not sufficient to exclude his testimony. He must be employed as an attorney. De Wolf v. Strader, 26 Ill. 225; Hatton v. Robinson, 14 Pick. 416.
    There must be an employment, either with reference to some suit or judicial proceeding, existing or anticipated, (Whiting v. Barney, 30 N. Y. 330, Berd v. Lovelace, Cary’s Rep. 88, Austin v. Vesey, id. 89, Kilway v. Kilway, id. 126,) or advice sought and paid for with a view to regulate the future conduct in regard to pending or expected litigation. Thompson v. Kilborn, 28 Vt. 750; Alderman v. The People, 4 Mich. 414.
    There must be either a retainer, offer to retain, or attorney’s fee paid, to consummate the relation. De Wolf v. Strader, 26 Ill. 225.
    The privilege does not extend to communications made in the presence of all the parties to the suit, nor to third persons in the presence of the attorney. Britton v. Lorenz, 45 N. Y. 51; Whiting v. Barney, 30 id. 342; Griffith v. Davis, 5 B. & A. 502; Shore v. Bedford, 5 M. & G. 271; Coveny v. Tannahill, 1 Hill, 33.
    Messrs. Porter & Porter, and Messrs. Stewart & Grier, for the appellee:
    The chancellor, in rendering his decree, only considers legal and pertinent evidence, and the hearing of incompetent evidence is no ground for reversal. Swift et al. v. Castle, 23 Ill. 214.
    Louise Smith was not a competent witness for her husband. Mitchinson v. Cross, 58 Ill. 366; Gravel Road Co. v. Madaus, 102 id. 117.
    Rejection of competent testimony is no ground of reversal, if the record shows its admission would not have changed the result. Rowley v. Hughes, 40 Ill. 316; Ryan v. Brant, 42 id. 78.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This was a bill in chancery to set aside a sale of the interest of John Smith in the estate of his grandfather, Garland Bay, deceased, and a deed made pursuant thereto, to John Long, on the ground of fraud. The circuit court, after hearing the evidence, decreed that the bill be dismissed, and this appeal is brought to reverse that decree.

Several errors are alleged in the rulings occurring during the progress of the trial, but none of them are of controlling importance.

“In chancery cases the practice is, not to reverse for erroneous rulings in the admitting or excluding of evidence, unless it is seen, after an inspection of the entire record, that different rulings might have induced a different decree. ” (Willemin v. Dunn et al. 93 Ill. 520.) The entire record is before us, embracing not only the evidence admitted, but also that excluded, and unless we can see on this record there is error in the decree below, it must be affirmed. Swift et al. v. Castle, 23 Ill. 209.

We incline to the opinion that the deposition of Smith’s wife was properly excluded, and that of Johnson, the attorney, should have been admitted. We have held, under the act of February 14, 1867, husband or wife are competent witnesses for or against each other, only in the cases mentioned in the exceptions to section 5 of that act. (Mitchinson v. Cross, 58 Ill. 366; Gravel Road Co. v. Madaus, 102 id. 417.) We do not understand the language in those exceptions, “except in cases where the wife would, if unmarried, be plaintiff or defendant, ’•’ as having reference to cases where the wife has been married, but is subsequently divorced, or her husband has died, as contended by counsel for appellant, but simply to cases where she has never been married,— where the controversy does not concern a right resulting from marriage,—and it is plain this is not such a case. Nor does it concern her separate property, in any correct sense of that term, or fall within any of the other exceptions.

With regard to the deposition of the attorney, Johnson, the evidence shows only that the firm of which he was a member were employed as scriveners to draw up the papers requisite to consummate the contract to which the parties had agreed. There was no controversy,—both parties were present,—no litigation was anticipated, and, of course, no advice was, or could have been, sought, with reference to litigation. The facts, as mutually understood, were submitted, and the attorneys were required to draw the papers in conformity therewith, and for this service Long paid them. De Wolf v. Strader et al. 26 Ill. 225, is directly in point. It was there held, an attorney who is requested to' prepare a deed or mortgage, no legal advice being required, is not privileged, and may testify as to what came to his knowledge in connection with such transaction.

But we think this deposition is of hut little weight in what we regard as the vital issue here, and circumstances are shown in regard to the conduct of the witness in connection with this case materially impairing the respect to which his evidence would otherwise be entitled. If we add the depositions of Mrs. Smith and Johnson, both, to the evidence of appellant, we are still unable to say the preponderance is so clearly on that side that the decree below should, for that cause, be reversed. In cases of this kind it is incumbent on the party seeking a rescission, to return, or offer to return, what he has received. He must place the opposite party in statu quo. (Edmunds v. Myers et al. 16 Ill. 207; Underwood v. West, 52 id. 397.) There are exceptions to this rule, as, where that received is entirely worthless, or by reason of peculiar circumstances not chargeable to the fault of the party seeking rescission, restoration of that received is impossible; but none of these are applicable here, that received being money, which may always be restored.

It is alleged in the bill that Smith sold his interest in the estate for $1000,—of which $400 was for the real estate, and $600 for the personal estate,—and this amount, only, is offered to be returned. The answer denies that this is the true amount, and alleges that the price paid was $1400,— of which $400 was for the real estate, and $1000 was paid for the personal estate. Smith testifies that the amount he received was $1000, while Long as positively testifies the amount he paid Smith was $1400. Each proves declarations of the other party to sustain his side of the case.

. The estate was in Warren county, in this State, and Long resided there. Smith lived at Braddyville, in Paige county, Iowa, and the trade was closed between them at Clarinda, the county seat of that county. Long left his home in Warren county on the evening of the 30th of May, 1881, arrived at Braddyville next morning, (31st of May,) agreed upon terms of. purchase and sale with Smith. That afternoon he and Smith went to Clarinda, had the papers with reference to the sale drawn, and he paid the money to Smith. He paid Smith, through a bank at Clarinda, $3 000, in this way r He had with him a letter of credit for $500, and a draft on New York for $300. The letter of credit was from the First National Bank of Monmouth, and the draft was drawn by a bank at Rose-ville, in Warren county. Smith got the cash from the bank at Clarinda, on the letter of credit and the draft; then Long made his note to Smith for $200, payable in ten days, left that in the bank at Clarinda, and it was paid by or before maturity, through the First National Bank, at Monmouth, and Smith received his money. There is no controversy whatever that Smith was paid $1000 in this way. The dispute relates to the payment of the other $400 which Long claims to have paid. Long testifies that he paid that amount to Smith on the steps of the bank in Clarinda, before they entered the bank, no one being present. He says while the papers were being drawn he and Smith went to the bank; that the doors were temporarily closed; that they then sat down on the steps of the bank, and he counted out to Smith, from his pocket-book, four one hundred dollar bills; that then some one opened the doors of the bank, and they entered, and then the other payments alluded to before were. made. Long is corroborated circumstantially, apart from proof of admissions of Smith that he was to receive, and had received, $1400 in this way. The cashier of the bank at Monmouth testifies, that either the day Long started to Iowa, or the day before, he gave him the letter of credit for $500, and he also then gave him four one hundred dollar bills for smaller bills. Long testifies that he took these four one hundred dollar bills with him to Iowa, and there is no evidence tending to show that he disposed of them before going there. The evidence shows that after Long and Smith left the bank they returned to the attorney’s office. Long then paid the attorney’s fees. He and Smith left the office, and had proceeded some distance in the town, when Long discovered he had lost his pocket-book. Smith says, upon making this discovery Long asked him if he was unable to find it, if he (Smith) would loan him money enough to go home on. Long returned to the attorney’s office, and Johnson handed him his pocket-book, requesting him to examine it and see if all was there, which he did, and said there was between $20 and $30. This is the evidence of both Long and Johnson.

Long testifies that the four one hundred dollar bills that he got from the bank in Monmouth were the same that he paid to Smith on the steps of the bank at Clarinda. Of course the circumstances are not conclusive, but they are strongly corroborative, there being so short a time after he got the bills until he was evidently without them, and no other transaction being shown in which he could have expended them. There is no reason to believe that Long, at that time, supposed Smith would become dissatisfied with the trade and seek to repudiate it, and hence if he had had the $400 in bills, the inference is strong that he would not have given his note for the $200. Long testifies that when he was buying tickets for Clarinda, at Crooks, which seems to be a station near Braddyville, Smith told Good, the station agent, about the sale, and that he was receiving $1400. Good fully corroborates him in this. A number of other witnesses swear to admissions of Smith that he was to receive, or had received, $1400 from Long.

It is proper to say that a number of the witnesses, on the other hand, testify that Long admitted that he had bought Smith’s interest for $1000. It is not improbable that some of these witnesses may have misapprehended either what Long said, or what he meant, in this way: He says he was to pay $1000 for„ the personal estate only. He may have been talking of that estate, and the witnesses failed to catch the word “personal, ” or he may have spoken of the estate in the hands of the administrator, and called it “the estate,” and the witnesses have misapprehended the meaning. The same can not be said of the witnesses who speak of Smith’s receiving $1400 from Long. There was no other transaction to which the extra $400 could; by any possibility, have reference. Undoubtedly there is some of the evidence that can not be reconciled upon any hypothesis. Somebody has committed perjury, but it is impossible for us to say that we are clearly satisfied this was by Long, and on his behalf.

The burden of making out a case was upon Smith. We are 'not satisfied that the court below clearly erred in holding that he had not done so.

The decree is affirmed.

Decree affirmed.


text:
    John H. Atkins v. Thomas Huston et al.

      Filed at Ottawa May 10, 1883.

    1. Permanent survey oe land—setting aside surveyor’s report and appointing new commission, after verdict—trial de novo. Under tire act of March 29, 1869, “to provide for the permanent survey of lands,” when a trial is had by jury, on objection to the report of the surveyors, resulting in a verdict against the report, and in favor of the objector, and the court, though overruling a motion for a new trial, sets aside the report and the commission, and appoints a new one, this is, in effect, a setting aside of the verdict, and thereafter the proceeding is one de novo, and all things done under the first commission, including the verdict of the jury, falls through and comes to naught. This having been done, the verdict returned under the first commission could not be regarded as an adjudication upon the question at issue so as to conclude the parties.
    2. Same—evidence on second trial. Where a trial is had on objections to the report of a commission of surveys to establish corners and disputed lines, and a finding is given against the correctness of such report, which is set aside and a new commission appointed, and objections are filed to the second report, on the second trial it is error to admit in evidence the verdict of the jury and all the papers and proceedings in the first trial, even though both reports fix the corners and lines substantially the same.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Henderson county.
    Mr. J. M. Kirkpatrick, for the appellant.
    Messrs. Stewart & Grier, for the appellees.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This proceeding was an application, by petition, of John H. Atkins, under the act of March 25, 1869, “to provide for the permanent survey of lands, ” to the circuit court of Henderson county, to have the boundaries of certain land of his permanently established. In pursuance of the act the court appointed a commission of surveyors, who acted, and made report of their survey, establishing the corners and boundaries, to which report appellees filed objections, whereupon a trial was had by a jury, resulting in a verdict against the petitioner. The court overruled a motion for a new trial, and in the same order overruling such motion set aside the report made by the commission, and set aside the commission, and appointed a new commission to make survey of the lines, boundaries and corners in dispute. This second commission made report of then: survey to the court, to which report appellees filed objections, and thereupon a second trial by a jury was had, which resulted in a verdict in favor of appellees, and, after overruling a motion for a new trial, the court entered judgment upon the verdict in favor of appellees, and dismissed the petition. Upon appeal to the Appellate Court for the Second District the judgment was affirmed, and the petitioner appeals to this court.

Upon the second trial the verdict of the jury and all the papers and proceedings in the first trial were introduced in evidence, against the objection of appellant. In this, we are of opinion, there was error. The second trial should have been by itself; in entire independence of the former trial, and the verdict of the jury and proceedings on that trial should not have been admitted in evidence to influence the jury’s decision in the last trial. The justification which is offered for the court’s ruling is, that the second commission reported the same line which was reported by the first commission, and as the verdict of the first jury found that line not to be the correct line, that verdict, as an adjudication upon the question, estopped appellant from again trying an issue upon the correctness of that line, and that hence the proceedings' of the first trial were properly admitted to show a former adjudication of the question. We do not think it appeared that the line reported by the second commission was, in fact, the same line as that reported by the first commission. It is admitted that the corner established by the second commission at the south-east corner of section 25, one of the corners to be established, is five links east and five links south of the corner established at that place by the first commission. The answer is, that the lines were practically the same. We can not accept this as warrant for introducing in evidence the proceedings of the first trial, and we are inclined to think that the first verdict was not an adjudication which should conclude appellant at all. Although the court, upon the rendition of the first verdict, overruled a motion for a new trial, yet afterward, in the same order overruling such motion, it set aside the report of the first commission, set aside the commission, and appointed a new commission. We think all this was, in effect, setting aside the first verdict.

The act is an anomalous one, and it makes no provision for any trial by jury. But we held, in Townsend v. Radcliffe, 63 Ill. 9, in respect to this proceeding, that if objections were made to the commission’s report of survey, denying its correctness, an issue of fact would be thus formed, upon which any party to the record would have the right of a trial by jury. And when this same case was before us once before, (Huston v. Atkins, 74 Ill. 474,) we reversed the judgment because of the denial of a trial by jury. The act provides that the court shall hear and determine the objections to the report, and enter an order or judgment either approving or rejecting the report, or modifying and amending the same, according to the rights and interests of the parties, or may refer the same back to the commission to correct their report and survey in conformity with the judgment of the court, or the court may, for good reason, set aside the commission and appoint a new commission, who shall proceed de novo, and survey and determine the boundaries and corners of the lands in question.

We incline to the opinion that by the setting aside of the report of the first commission, and setting aside the commission, and appointing a new commission, the proceeding thenceforth, as respected the commission, was one de novo, and all that had been done under the first commission, including the verdict of the jury, fell through, and came to naught.

The judgment of the Appellate Court is reversed, and the cause remanded for further proceedings.

Judgment reversed.

Mr. Justice Craig took no part in the decision of this case.


author: Mr. Justice Mulkey Mr. Chief Justice Scott,

text:
    David M. Thornley v. Clifton H. Moore.

      Filed at Springfield May 9, 1883.

    1. Redemption from judicial sale—by judgment creditor—right limited to cases provided for in the statute. While the law authorizing redemptions from foreclosure and execution sales is remedial in its character, and should not, therefore, be defeated on merely technical grounds in cases fairly brought within its provisions, yet the right of redemption from such sales is purely statutory, and courts are not warranted in extending such right to a class of cases which the legislature has not seen proper to provide for.
    2. Same—what judgment creditors may redeem. Under the statute it is clear that none but judgment creditors in courts of record can exercise the right to redeem as judgment creditors.
    3. Same—redemption under transcript of justice’s judgment filed in circuit court. A party died after having recovered a judgment before a justice of the peace, and the return of an execution thereon, and after his death a decree of foreclosure of a mortgage which had been given by him was rendered and a sale made, when his administrator caused a transcript of the justice’s judgment to be filed in the office of the clerk of the circuit court, and his letters of administration, and sued out an execution upon such judgment, and he then assigned the judgment to one, who, after the expiration of twelve, and before the expiration of fifteen, months, paid to the sheriff levying the execution thé amount necessary to redeem from the foreclosure sale, which the sheriff tendered to the purchaser under such sale, who refused to receive the same: Held, that there was no valid redemption made, and that the court did not err in awarding to such purchaser a writ of possession after he had taken out his deed.

      4. Transcript of justice’s judgment—at whose instance it may be certified to circuit court. Under section 95, chapter 79, of the Revised Statutes, entitled “Justices and Constables, ” a justice of the peace has no authority, on his own motion, to certify to the clerk ‘of the circuit court a transcript of a judgment and proceedings before him, for the purpose of making the same a judgment in the circuit court. This can only be done at the instance of the plaintiff in the judgment. It can not be done at the request of the administrator of the deceased plaintiff, as he is not the plaintiff in the judgment.
    5. Judgment in justice’s ‘ court—death of the plaintiff—how the judgment may be enforced. On the death of a plaintiff in a judgment before a justice of the peace, the judgment becomes wholly inoperative as such, for want of a party plaintiff to enforce it. His administrator can not enforce it before the justice by execution. The only mode of enforcing it is to bring a new action on it in the circuit court, in the name of the administrator, or before a justice of the peace, and talcing a transcript on return of no property found.
    6. Error—who may complain—of debtor who has failed to redeem. "Where a party’s land has been sold under decree of foreclosure, and the time of redemption has passed as to him, he is in no position to complain of an error of the court in awarding a writ of assistance to the purchaser under the decree, even if a legal redemption may have been made by a judgment creditor, who alone has the right to complain of being kept out of possession. The debtor might perhaps have made an application to the court for an order directing the master to sell the premises again, if the redemption was legal, and on refusal to make such order, have taken advantage of the error in this court.
    7. Where the defendant in a decree of foreclosure fails to redeem within twelve months after a sale of the mortgaged premises, he ceases to have any interest in or concern with the land itself, whatever interest he may have had in his creditor’s redeeming.
    8. Officer—refusal to make sale of land, after redemption by judgment creditor—liability on official bond. If a master or sheriff, after a redemption has been properly made by a judgment creditor, refuses or neglects to proceed and sell the premises again, as required by the statute, he and his sureties will be liable on his official bond to any one who may be injured thereby.
    Appeal from the Circuit Court of De Witt county; the Hon. Lyman Lacey, Judge, presiding.
    At the March term, 1880, of the DeWitt circuit court, Emily A. Eastman obtained a decree for the foreclosure of a trust deed given by David M. Thornley and wife on the land which is the subject of controversy in this suit. The premises were sold under the decree on the 1st of May, 1880, to Clifton H. Moore, the appellee, who received a master’s deed therefor the 4th of August, 1881. Prior to these transactions, to-wit, on the 7th of June, 1875, Edward Porter,'now deceased, recovered a judgment against Thornley, before a justice of the peace, for $21.70, and costs of suit, upon w’hich several executions were issued in the lifetime of Porter, which were returned “no property found.” Porter died the 1st of March, 1879, and letters of administration on his estate were issued to Lucy E. Porter on the 17th of the same month. On the 31st of May, 1880, a transcript of the judgment before the justice was filed and recorded in the office of the clerk of the circuit court-of DeWitt county. On the 29 th of July, 1881, Lucy E. Porter, as administratrix, filed in th.e same office her letters of administration for record, as provided by the 37th section of chapter 77 of the Revised Statutes, and thereupon sued out an execution upon said judgment, which, on the following day, was levied by the sheriff of the county upon the premises in controversy. This having been done, the administratrix assigned and transferred to J. T. Snell said judgment, who, for the purpose of redeeming from the sale under the decree of foreclosure, on the same day paid to the sheriff, for the use of appellee, $1132.20, the amount necessary for such purpose, if, under the circumstances stated, the right to redeem existed. This sum was tendered by the sheriff to appellee, who declined to receive it, on the ground that Snell had no right, under the law, to redeem; and the circuit court being of this opinion, on the application of appellee entered an order awarding a writ of assistance in the foreclosure proceeding, to put him in possession of the premises, to reverse which order this appeal is ¡xroseeuted.
    Messrs. Tipton & Ryan, and Messrs. Lemon & Burroughs, for the appellant:
    The statute provides that the death of a sole plaintiff shall. not abate a suit when the cause of action survives. (Rev. Stat. p. 94, sec. 10.) It also provides for the filing of a transcript of a judgment of a justice of the peace in the office of the clerk of the circuit court, which gives it the force and effect of a judgment of a court of record. (Hurd’s Stat. 1881, p. 683, sec. 95.) It further provides that “the collection of a judgment or decree of-a court of record shall not be delayed or hindered, or the lien created by law abate, by reason of the death of any person in whose favor the judgment or decree shall he, but the executor * * * may cause his letters * * * to be recorded in such court, after which execution may issue, ” etc. Ibid. 660, sec. 37.
    The filing of the transcript is a mere ministerial act, and the recording of it should no more invalidate the judgment than would the recording of a deed after the grantee’s death. The judgment before the justice is just as much a judgment after the plaintiff dies as before. In Phillips v. Demoss, 14 Ill. 410, this court sustained a redemption made on a transcript against the false return of a constable. Hay v. Hayes, 56 Ill. 342.
    The statute authorizing redemption is remedial in its character. It is the policy of the law to sustain redemptions, that the property of the debtor may discharge as many of his debts as possible. It may be made by any assignee of a judgment. Sweezy v. Chandler et al. 11 Ill. 445.
    The statute being so remedial, the courts will construe it liberally to advance the remedy. Robertson et al. v. Dennis, 20 Ill. 313.
    Messrs. Moore & Warner, for the appellee:
    The right to sue out a transcript of a justice’s judgment is purely statutory, and is not authorized after the death of the plaintiff. The statute does not provide for the revival of a judgment before a justice of the peace. Section 10, chapter 1, refers only to suits before reduced to judgment, and section 37, chapter 77, refers only to judgments in courts of record.
    No valid lien proceedings can be had, in any case, after the death of a sole plaintiff, until his representatives have been made parties. (Barbour v. White, 37 Ill. 172; Risley v. Fellows, 5 Gilm. 533.) And this transcript, a lien proceeding, having been issued and recorded in the office of the clerk of the circuit court without the administratrix having first been made a party, is void.

      If the execution is issued on a void judgment it is no lien. White v. Jones, 38 Ill. 159.
    Action taken by a court, without jurisdiction of the person, is void. White v. Jones, 38 Ill. 163.
    An execution can not issue on a judgment after the death of the plaintiff, and if issued in his name, will be quashed on motion. Harwood v. Murphy, 1 Green, 193; Hicks v. Moore, 1 Miss. 193; Moore v. Bell, 13 Ala. 459; Bellinger v. Ford, 14 Barb. 250; Trail v. Snouffer, 6 Md. 308.
    The proceedings upon an execution sued out after the death of one of the parties, without first reviving the judgment for or against the proper representatives, are absolutely void, whether their validity be drawn in question directly or collaterally, and they may be attacked by any one. Swiggart v. Harber, 4 Scam. 371; Risley v. Fellows, 5 Gilm. 531; Brown v. Parker, 15 Ill. 307; Scammon v. Swartwout, 35 id. 327; Lewis v. Lindley, 28 id. 148; Durham v. Heaton, 28 id. 264; Barbour v. White, 37 id. 165; Fitts v. Davis, 42 id. 391; Coran & Co. v. Pittenger, 92 id. 241; Lessees of Massie’s Heirs v. Long et al. 2 Ohio, 287; Lessees of McCartney v. Reed, 5 id. 221.
    The right to redeem is purely statutory, and must be exercised in the manner pointed out by the statute. Durley v. Davis, 69 Ill. 133, and cases cited.
    Thornley, the judgment debtor and appellant, having allowed one year to elapse after the sale under the decree without offering to redeem, has lost all of his rights, and has no standing in this court. Blair v. Chamberlain, 39 Ill. 521; Massey v. Westcott, 40 id. 160; West v. Krebaum, 88 id. 263; Bower, Exr. v. Ohio and Mississippi R. R. Co. 92 id. 223.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Two questions are presented by the record for determination : First, do the facts show a valid redemption from the master’s sale ;• and second, assuming they do, and that the court therefore improperly awarded to appellee the writ of assistance, is the error one of which appellant can complain.

While the law authorizing redemptions from judicial and execution sales is remedial in its character, and should not, therefore, be defeated on.mere technical grounds in cases fairly brought within its provisions, yet the right of redemption from such sales is purely statutory, and courts are not warranted in extending such right to a class of eases which the legislature, in its wisdom, has not seen proper to provide for. (Littler v. The People ex rel. 43 Ill. 188; Durley v. Davis, 69 id. 133.) The judgment debtor is given twelve months in which to exercise this right, and his judgment creditors, after his right is barred, are given three months additional time in which to exercise the same right. The appellant in the present ease having failed to redeem within the twelve months, it is clear that, so far as he is concerned, he then ceased to have any interest in or concern with the land itself, whatever interest he may have had in his creditors redeeming. The payment of the redemption money by Snell to the sheriff, for the use of appellee, was within the fifteen months, and the redemption was properly made, provided Snell was, at the time, a judgment creditor within the meaning of the act, and this depends upon whether the filing of the transcript of the judgment and proceedings before the justice with the circuit clerk, and causing the letters of the administratrix to be recorded in the office of the clerk of the circuit court, as heretofore stated, had the effect of making the justice’s judgment in effect a judgment of the circuit court, for it is clear none but judgment creditors in courts of record can exercise the right of redemption.

It will be perceived by reference to section 95, of chapter 79, of the Eevised Statutes, entitled “Justices and Constables,” that the justice has no authority, on his own motion, to certify to the circuit clerk a transcript of a judgment and proceedings before him, for the purpose of making the same a judgment in the circuit court. This can only be done at the instance of the plaintiff in the judgment, unless by judicial legislation a provision authorizing the administrator of the plaintiff to cause such transcript to be certified to the clerk is interpolated into the act, which would be to provide for a case about which the statute is entirely silent: This, we are of opinion, the court has no right to do. At the time of certifjdng this transcript the administratrix had no power to enforce it before the justice by execution, even if the defendant in the judgment had been perfectly silent. The only mode of enforcing it there, would have been to have brought a new action on the judgment, in the administratrix’s name. Without such action, and the recovery of another judgment, it is clear she could not have had an execution in her own name. The judgment, by reason of the death of the plaintiff, had become wholly defective and inoperative as a judgment. ' It was wanting in an essential element, namely, a party plaintiff to enforce it. We do not think the statute contemplates the certifying of -a transcript of such a judgment to the clerk of the circuit court, with the view of making it a judgment in the circuit court. The statute applies only to such judgments as might be enforced in the justice’s court, but for the want of personal estate in the hands of the defendant, out of which to make the demand. The proper course to have pursued under the circumstances of this case, would have been for the administratrix to have brought an action, in her own name, in the circuit court, or if brought before a justice, after the return of an execution nulla bona, she might, as plaintiff in the judgment, have caused the transcript of the proceedings to be certified to the clerk of the circuit court, and in either case have placed herself or her assignee in a position to properly redeem from the master’s sale. But the parties have not seen proper to take either of these courses, and they should abide the consequences.

But even if this view of the matter was not correct, and conceding the redemption was properly made, we are of opinion the appellant is not in a position to complain of the error of the court,—conceding it to be one,—in awarding the writ of assistance. As already stated, it is clear the appellant has no right in or concern with the premises in question. In contemplation of law it is a matter of perfect indifference to' him whether appellee or Snell occupies them, and if the redemption was legal the latter alone has a right to complain of being kept out of possession. It is true, as claimed by appellant, appellee was interested in having the premises to sell for as much as possible, 'and with this view perhaps he might, assuming the redemption to have been proper, have made an application for an order directing the master to proceed and sell the premises again, and on the court’s refusal to make such an order he might have taken advantage of it in this court. However this may be, it is clear that if the master or sheriff, after a redemption has been properly made, refuses or neglects to proceed to sell the premises again, as required by the statute, he and his sureties will be liable on his official bond to any one who may be injured thereby.

For the reasons stated, we are of opinion there was no error in awarding the writ of assistance, and that the order of the circuit court should therefore be affirmed.

Judgment affirmed.

Mr. Chief Justice Scott,

dissenting:

Dissenting, as I do, from the conclusion reached by a majority of the court, I wish to state my views at length of the whole case.

Concerning the facts of this case there is no disagreement. At the master’s sale, under a decree of foreclosure, in the case of Emily A. Eastman against David M. Thornley and others, made on the 1st day of May, 1880, Clifton H. Moore became the purchaser of the land in controversy, and received the usual certificate of purchase. After the expiration of fifteen months from the date of the sale, the master in chancery made the purchaser a deed for the property, as is done in case where there has been no redemption, either by the debtor himself or any judgment creditor. On the refusal of' the debtor to surrender the possession of the premises, after demand in writing, the purchaser made application to the court in which the decree was rendered, under which the property was sold, for a writ of assistance, which was awarded. From that order of the court, Thornley, against whom the writ of assistance was directed to issue, has appealed to this court. The defence made is, that the property had been redeemed from the master’s sale, and therefore the writ of assistance was improperly awarded.

Prior to the transactions just stated, Edward Porter, since deceased, recovered a judgment before a justice of the.peace, against David M. Thornley, upon which an execution was issued in the lifetime of the plaintiff, and returned “no property found.” On the death of Porter, which occurred in 1879, letters of administration on his estate were granted to Lucy E. Porter. A transcript of the judgment in favor of Porter was filed in the office of the clerk of the circuit court. On the 29th of July, 1881, Lucy E. Porter, as administratrix, filed in the same office her letters of administration, which -were there duly recorded under the provisions of the statute, and thereupon sued out an execution on the judgment, in her own name, as the administratrix of the deceased plaintiff. It was under that execution the redemption was effected, if °at all. After the expiration of twelve months, and before the expiration of fifteen months, from the date of the master’s sale, Snell, as assignee of the Porter judgment, caused the execution issued thereon to be levied on the property, and paid to the sheriff having the execution a sum sufficient to redeem from the master’s sale. The redemption money was tendered to the holder of the certificate of purchase, but he refused to receive it.

' It will be seen the principal question is, whether there was, in fact, a redemption of the property that is valid as against the purchaser at the master’s sale. No one else is complaining or resisting the redemption. So far as the purchaser at the master’s sale is concerned, no reason is perceived why the redemption is not effective, at least until it is set aside in some appropriate way. Section 95, chapter 79, Eev. Stat. 1874, provides in relation to judgments before justices of the peace, that “when it shall appear by the return of an execution first issued as aforesaid, that the defendant has not personal property sufficient to satisfy the judgment and costs within the county in which judgment was rendered, and it is desired by the plaintiff to have the same levied on real property in that or any other county, it shall be lawful for the justice to certify to the clerk of the circuit court of the county in which such judgment was rendered, a transcript, which shall be filed by said clerk, and the judgment shall thenceforward have all the effect of a judgment of the said court, and execution shall issue thereon out of that court, as in .other cases.” All the statute requires to be done in such cases was done in this case by the administratrix of the deceased plaintiff. It is said the administratrix had no authority, under this section of the statute, to cause the transcript to be filed in the office of the clerk of the circuit court. The argument is, the right is confined to the plaintiff in the suit, and after his death it can not be done, and the only reason assigned in support of the position taken is, that the statute has not so provided in express terms. This is too narrow a construction of the statute on this subject. Only general powers are conferred by law, and that which is necessary to make such powers effective must be understood to be implied in the general grant,—otherwise statutes would become so voluminous as to be impracticable of application. This principle runs through all the text-books and decisions on this subject. It is apprehended any one interested in the judgment, as plaintiff, equitable owner, or otherwise, may cause the transcript to be filed in the office of the circuit clerk, for the purpose of obtaining the benefit of this section of the statute. Narrowing the privilege to the plaintiff alone, is to render the statute inoperative in many instances, where no necessity exists for any such restricted construction.

Ordinarily, the personal representative may do anything the decedent might do if living, in regard to the collection of a judgment in favor of the decedent. In this case the administratrix is charged by law with the collection of the judgment in favor of the intestate, and it would seem she might use all the means the law has provided for that purpose. The judgment did not cease to be a judgment because of the death of the plaintiff. It could still be sued upon as a valid, subsisting judgment. Filing the transcript in the office of the clerk of the circuit court is not a judicial act, and no proceeding is to be had in the name of the deceased plaintiff. What reason exists why the administratrix, or any one else interested in the collection of the judgment, can not cause the transcript of the judgment to be filed in the office of the clerk of the circuit court, notwithstanding the death of the plaintiff? It is simply using one of the means the statute has provided for collecting the judgment.

Assuming, as may be rightly done, the transcript of the judgment before the justice of the peace was properly filed in the office of the circuit clerk by the administratrix, the statute from thenceforward gives it all the effect of a judgment in the circuit court, and then provides execution shall issue thereon out of that court, “as in other cases. ” How may execution issue in “other cases,” in the event of the death of the plaintiff ? The statute clearly provides, (section 37, chapter 77, Eev. Stat. 1874,) “the collection of a judgment or decree of a court of record shall not be delayed or hindered, or the lien created by law abate, by reason of the death of any person in whose favor such judgment or decree shall be; but the executor or administrator, or, if the decedent was an executor or administrator, the administrator de bonis non, or with the will annexed, may cause his letters testamentary or administrative to be recorded in such court, after which execution may issue or proceeding be had in the name of the executor administrator, as such, in the same manner as if the judgment or decree has been recovered in his name. ” The statute in this respect was fully complied with in this case. The administratrix of the deceased plaintiff caused her letters of administration to be recorded in the office of the clerk of the circuit court of the county where the judgment had been rendered, and where the transcript had been filed, and thereupon an execution issued from that court precisely “as in other cases” of judgment in the circuit court. The proceeding was fully warranted by the provisions ‘of the statute, and the land sold by the master in chancery could as well be redeemed under such an execution as upon an execution issued upon any judgment in the circuit court.

It is also made an objection the transcript judgment was not a lien on the land at any time before the expiration of twelve months from the date of the master’s sale. That is wholly immaterial. This court has frequently decided the judgment under which a judgment creditor may redeem from a previous sale need not be a lien on the land to enable such creditor to redeem. Phillips v. Demoss, 14 Ill. 410.

The point is also made that Thornley has no such interest as would enable him to prosecute this appeal. It would seem to be a sufficient answer to the position taken that the writ is ordered to issue against him,—that is, to be executed on him,—and under it the sheriff may seize him, and place him and his family and their household effects in the public streets. It is strange,. indeed, if the law will forbid him to inquire whether all that which affects him and his family so seriously, was being done according to law. If there is any such rule of law, the common mind will be slow to appreciate its justness. But there is another reason that leads to the same conclusion. The proceeding may affect him otherwise in a pecuniary point of view. The land may now be worth more than both judgments, and he may be in condition to redeem from the second sale, and thus save his land, or at least a part of it. In the -views expressed in this dissenting ■ opinion I am authorized to say that Mr. Justice Walker and Mr. Justice Sheldon concur. We are of opinion the order awarding a writ of assistance should be reversed.