author: Mr. Justice Shops

text:
    Ezra H. Stewart et al. v. Frank Fellows et al.

      Filed at Ottawa

      April 3, 1889.

    1. Trusts and trustees—protecting trust estate—equitable lien in favor of trustee. The fact that a person becomes the trustee of another, •of property bought by taking an assignment of the contract oí pinchase, to hold the same in trust, will not preclude him from afterward advancing money, at the request of the cestui que trust, to prevent a declaration of forfeiture of the contract of purchase; and if the trustee makes such advance with, or even without, the request of the cestui que trust, and thereby prevents a loss of the property, he may take the title, with the consent of the cestui que trust, and hold it as security for the money so advanced by him, and have an equitable lien on the property therefor.
    2. While it may be that a trustee holding the title to a lot in trust for another would be prevented, from his position as such, from demanding that other claims held by him should be tacked on and secured "upon the property to the injury of the cestui que trust, that would in no wise affect his equitable lien for money necessarily advanced by him to protect and preserve the estate of his cestui que trust.

    3. Resulting trust—in favor of a wife—of money loaned to the husband. Where a wife, after the passage of the Married Woman’s act of 1861, loans her money to her husband, she will become simply his •creditor, and if the husband invests the money so borrowed in the pin-chase of land in his own name, no resulting trust will arise in favor of the wife.
    4. Mortgage—a transaction treated as such. Where a purchaser of a lot of ground assigns his contract of purchase to another in trust, .and the trustee advances the purchase money, when due, at the request of the cestui que trust, to save a forfeiture, and the vendor conveys the title to such trustee, and transfers to him the notes given for the price, by consent of the cestui que trust, as a security for the repayment of the .sum so advanced, the transaction will, in equity, be treated as a mortgage, and it wiR not concern the cestui que trust to whom the money is •decreed to be paid,—whether to the trustee or his devisee.
    5. Will—devise of land held in security for a debt passes a right to collect the debt. If a party holding the legal title to land as a security lor the payment of moneys advanced for the benefit of the real owner, devises the land, the devise will carry whatever right the devisor had therein, to his devisee.

      6. Witness—competency—party to suit, as against one suing as the representative of a deceased person. "Where A transferred his bond for a deed to B, without consideration, thereby making the latter his trustee, and procured B to make payment of the purchase money, and had the vendor convey the property to B, who died, having devised all his estate to G, and the executor of 0 filed a bill against A and his wife to foreclose the deed as a mortgage, it was held, that A was not a competent witness in his own behalf as to any transaction between himself and B, or to testify in his own interest when called by his co-defendant, his wife.
    7. Same—credibility—declarations and admissions of one of two parties. A bought a lot and procured B, his trustee, to advance $500, the purchase money, and take a deed in his own name. On a creditor’s bill against A, he set up the fact that B had advanced the money at his request, and took the title as a security for its repayment. B died, having devised all his property to 0, who also died. On bill by the personal representatives of B and 0 to foreclose A’s equity of redemption, filed 4igainst A and his wife, the latter set up in defense that the money paid by B was advanced by him to A, and was the money of A’s wife, and A so testified in the case : Held, that A’s answer to the creditor’s bill was ■competent evidence, as tending to affect the credit to be given to his testimony, his attention having been called to the allegations in the cross-bill.
    8. Husband and wife—husband’s right to Ms wife’s money. Prior to the Married Woman’s act of 1861, the husband had the right to reduce his wife’s money and personal property into possession, and upon doing so, he would become the absolute owner of the same. A loan of money by a wife to her husband before that act took effect, made him the owner thereof.
    9. Dediveby of deed—a transaction considered. The holder of the legal title to a lot made a deed to another party, but instead of delivering the same, placed it in escrow in a bank, with this direction over his signature on the envelope containing the deed: “To be delivered in case of my death.” Subsequently the grantor revoked the power to deliver the deed, but allowed it to remain with the bank. After the grantor’s death the grantee obtained the deed by replevin, and had the same recorded. No intervening rights were acquired: Held, that the case must in all respects be treated as if the deed had remained undelivered.
    10. Evidence—will of deceased party to show transfer of property and ■claim of ownership. A party taking the title to a lot as a security for the purchase money advanced, by his will bequeathed and devised the property to F., subject to the condition that in case one S. (the debtor) should, within one year, pay to F. “such principal and interest as shall, at the time of such payment, be due me on an account now open between us, the principal sum and interest thereon, then I authorize and empower said F. to convey said realty to said S., and in said case I give- and bequeath to said F. such sum of money so paid,” etc. The testator, in his lifetime, made a deed of the property to the wife of S., and left it with his banker, to be delivered in case of his death. On bill to foreclose S.’s equity of redemption, the court admitted this will in evidence, over the defendant’s objection: Held, that the will was competent evidence to show complainant’s title by the devise, and that it was-also competent evidence as tending to sustain the contention that the deed had not been delivered to the wife of S., and was not intended to be delivered except on payment of the open account.
    11. Same—proof that money paid was that of the trustee paying the same, and not that of the cestui que trust. A, the purchaser of a lot-under a bond for a deed or contract of purchase, assigned his contract to B, who paid nothing therefor, and who gave to A a writing showing-he held the property as trustee, for A’s use and benefit. When the purchase money fell due, B, the trustee, paid the same to the original vendor, and took a deed to himself, by the consent of A, and also took up A’s note given for the price, and retained the same until his death : Held, that these facts afforded prima facie evidence that the money paid by the trustee was his own, and not that of A, the cestui que trust-
    12. Intebest—on money ad/oanced by debtor’s request. Where A, at the request of B, paid off the note of the latter given for the price of a> lot, and, by consent, took the deed from the vendor as security, and also-took up B’s note, unindorsed, bearing ten per cent interest, and the parties treated the money so paid as an advance on open account, it is error for the court, in finding the sum due from B, to allow any greater rate of interest than six per cent. In such case, B’s liability is on an account, and not on the note so 'paid.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Will county; the Hon. Charles Blanchard, Judge, presiding.
    Messrs. Haley & O’Donnell, for the appellants.
    Messrs. Olin & Phelps, for the appellees. '
   Mr. Justice Shops

delivered the opinion of the Court:

The hill in this case seeks to have the deed made by Richards and wife to George M. Leonard, at the instance and request of Ezra H-. Stewart, declared an equitable mortgage to Leonard, to secure the payment of certain indebtedness o£ Stewart, and to foreclose the same. The circuit court found that said deed was security for the amount due on the $500 note of Stewart to Bichards, but refused to hold that it was security for the indebtedness of Stewart on two other notes given by Stewart to Fellows, and endorsed to Leonard. The appellees, complainants below, make no complaint of this decree.

It is conceded that on October 12,1870, Stewart purchased of David Bichards the lot in controversy, for the sum of $500, and gave his note therefor to Bichards, payable four years after date, and bearing interest at ten per cent per annum, payable annually, and that Bichards gave Stewart a written obligation for a warranty deed, to be made on payment of said note according to its legal effect, reserving the right to declare forfeiture for non-payment, and making the time of performance by Stewart, of the essence of the contract. Stewart went into possession of the property, erected a house and made other improvements thereon. February 7, 1873, Stewart assigned this contract of purchase to Leonard, who gave back a written declaration that the assignment was without consideration, and that he held the contract in trust for Stewart, and subject to his order and control; and also gave Stewart his two promissory notes, for $500 each, without any other consideration than to create an apparent consideration for such assignment, and possibly to afford security for the execution of the trust. On the 13th day of October, 1874, (the day after the maturity of Stewart’s note to Bichards,) Leonard, under some arrangement with Stewart, paid Bichards $550,—being the amount then due on said note,—and Bichards, by the direction of Stewart, conveyed the lot to Leonard, and also delivered to him, without endorsement, Stewart’s note given for the purchase money of the lot. This deed and note, and assignment of the contract, together with the other two notes of Stewart given to Fellows, came into possession of the executors of the last will of E. C. Fellows, after the death of both Fellows and Leonard.

The fact that Leonard became the trustee of Stewart in respect of this property, would not preclude him from afterwards advancing money at the request of Stewart, to prevent a declaration of forfeiture by Richards; and if Leonard made such advances with, or even without, the request of his cestui que trust, and thereby prevented loss of the property, we see no reason why he might not take the title, with the consent of Stewart, and hold it as security for the money advanced, or why a court of equity should not hold that he would have an equitable lien on the property therefor. It may be that his position as trustee would have prevented him from demanding that other claims held by him should be tacked on, and secured upon the property, to the injury of the cestui que trust; but that would in nowise affect the equitable lien for money necessarily advanced by him to protect and preserve the estate of his cestui que trust. However, that question does not here arise, for the reason that there was included in the decree only the money advanced, at Stewart’s request, to prevent a forfeiture under the Richards contract.

The question of most difficulty is one of fact,—that is, to whom did the money belong with which the payment to Richards was made. The complainants insist that it belonged to E. C. Fellows, who advanced it to Leonard for the purpose for which it was used, while the defendants contend that it belonged to Mrs. Stewart, and was delivered by Stewart to Leonard the day before he paid it to Richards. If the contention of the defendants prevails, a reversal of the decree must follow. If the other contention prevails, the inquiry whether the money belonged to Leonard or to E. C. Fellows is not material. If the money was not furnished by either of the defendants, but was advanced by Leonard at the request of Stewart, and the deed was made by Richards to him, by the consent of Stewart, as a security for its repayment, the transaction will, in equity, be treated as a mortgage, and in that event it will not concern the defendants to whom the money is decreed,—whether in favor of the estate of Leonard, or that of Fellows.

Upon the theory that the deed is held as a mortgage, we think the decree properly found that the money should he paid to the estate of Fellows. Leonard, by his last will, duly probated, devised and bequeathed the property in controversy to said Fellows, subject to the condition “that in case one Ezra H. Stewart, dentist, now of Joliet, Illinois, shall, within one year from the probate of this will, pay to said Fellows such sum, principal and interest, as shall, at the time of such payment, be due me on an account now open between us, the ‘ principal sum and interest thereon, then I authorize and empower said Fellows to convey said realty to said Stewart; and in such case, I give and bequeath to said Fellows such sum of money so paid, absolutely and without reserve.” If the property in the hands of Leonard was a mere security for the payment of the money advanced by Leonard for Stewart’s benefit, the devise of the land would carry whatever right Leonard had therein, to the devisee. .

A point is sought to be made upon the language of the will quoted. It is said that the condition is, that if Stewart shall pay the amount due Leonard on an account now open between them, etc.; and that it is evident no such account existed, and that the executor of the estate of Fellows can have no standing because there was not an account open between Leonard and Stewart. However, if Leonard advanced the money to Richards for Stewart, it is manifest that it was upon open account. No note was taken therefor, nor was the Richards note assigned. Nor is the statement inconsistent with the contention that Fellows in fact furnished the money with which to pay Richards. It is not shown that Stewart had any knowledge of the source from whence Leonard procured the money,—that is, whether he in fact furnished it himself, or whether he got it of Fellows. In the event that Leonard really got it of Fellows, if Leonard advanced the money to Stewart it would be an open account between Stewart and Leonard. The credit was given, as it would seem, by Leonard, and not by Fellows. As we have seen, there was no assignment of the note by Richards to Leonard, and undoubtedly the account referred to in the will of Leonard was for the money advanced by Leonard to take up said note. It will be unnecessary, therefore, to examine the evidence to ascertain whether Leonard used Fellows’ money, or his own, in making such payment.

The fact that Leonard paid the money to Richards, and took a deed to himself by the consent of Stewart, taking up and retaining Stewart’s note to Richards, as against the defendants, affords prima facie evidence that the money was his. Richards testifies that Leonard paid him the money, and that he deeded the property to Leonard at Stewart’s request. If Stewart furnished the money, it would seem strange that Leonard should, by his consent, have taken up the note from Richards and retained it to the time of his death. Frank Fellows testifies, that he and E. C. Fellows came to Joliet on January 13,1876, which was long after Leonard’s death, and that he and Stewart figured the principal and interest then due; that Stewart then wanted his father, E. C. Fellows, to make a deed of the lot to Stewart’s wife; that his father replied, he did not care to whom he made the deed if he got his money. He thinks they figured the interest on three notes. He says: “I think two were payable to father, and another was transferred from Richards to father or George (Leonard). * * * I made a memorandum of our figuring at the time I got the $50 from Stewart. * * * .The amount was $1231.16.” Perry J. Hobbs testified, that Stewart told him, in 1876, that he wanted to borrow $1200 to pay a claim that Fellows had against him; that Stewart explained, that a deed from Mr. Leonard to Mrs. Stewart was in the National Bank, in escrow, and that he wanted this money for the purpose of obtaining that deed. Moreover, Stewart, in his sworn schedule in bankruptcy, shows that he then owed the estate of George M. Leonard, or the estate of E. C. Fellows, $1400, for money loaned. It is not shown that there were any other transactions out of which such indebtedness could have arisen, other than the three notes before referred to, which, as we have seen, including the money paid .Richards, amounted to only $1231.16 in 1876. Mrs. F. D. Fellows testified, that after the death of Leonard, and of her husband, E. C. Fellows, she had a conversation with Stewart at the Methodist parsonage in Lockport. She says: “I asked him, ‘What did George (Leonard) put that deed he made to you in the.bank for?’ He said,' ‘So that when I pay Mr. Fellows I can keep the property.’ ”

Again, a bill was filed by one Goodspeed to subject this property to the payment of a judgment against Stewart in his favor.' Stewart, on January 17,1876, filed a cross-bill in said .proceeding, which was signed and sworn to by him. In this cross-bill he alleges, that on October 12, 1870, he purchased •tif Richards the real estate in question, for $500; that he gave Richards his promissory note for the purchase money, payable four years after date, with ten per cent interest; that Richards gave him a contract for a deed, containing a clause authorizing a declaration of forfeiture in default of prompt payment; that he (Stewart) was financially embarrassed and unable to meet the payment, and, fearing a forfeiture, arranged with Leonard to pay Richards the amount called for in the note and contract, and assigned to Leonard the said contract for a deed, by way of security; that on October 12, 1874, Leonard did pay the sum of $500 to said Richards, he giving Leonard $50 to pay the interest on said note for the year last preceding, upon payment of which note, Richards made a deed of the premises to Leonard, and that, by agreement, Leonard was to convey the same to him (Stewart) upon his refunding the money so advanced by Leonard to pay off Richards. The introduction of this cross-bill as evidence was objected to, on the ground that Stewart was not the agent of his wife in respect thereof, and Ms declarations, therefore, were not binding upon her. It certainly was competent evidence against Stewart, both as an admission against his interest, and also as tending to impeach his testimony given in this canse. Outside of his testimony, there is no direct evidence in the record showing his wife to-be the owner of this property, or that she furnished any money with which to pay for the same. There is no pretense that she ever contracted for it, or that Stewart actually conveyed his equities in the property to her. If Stewart was a com- . petent witness, his attention having been called to the allegations of his cross-bill, before referred to, it was certainly competent, as tending to affect the credit to be given to his. testimony.

Stewart testified, in his own behalf, that he gave Leonard $550 of money belonging to his (Stewart’s) wife, which he (Leonard) paid to Bichards, and that Leonard never paid any money on the lot except what he thus received from Stewart. It was objected that Stewart was not a competent witness to testify in respect of that matter in this cause. Appellees sue as the executors of the last will and testament of E. C. Fellows, deceased, who was the sole devisee or legatee of Leonard. We-think it is clear that the defendant Stewart was therefore not a competent witness in his own behalf to testify to any transaction between himself and Leonard. (Bragg v. Geddes et al. 93 Ill. 39; Hurd v. Brown, 41 id. 125; Alexander v. Crosthwaite, 44 id. 359.) Nor was he competent to testify in his own interest when called by a co-defendant. Whitmer v. Rucker et al. 71 Ill. 410; Way v. Harriman, 126 id. 132.

It is urged, however, that he is a competent witness, first, because he acted as the agent of his wife in all matters relating: to this property; and secondly, because this litigation was concerning the separate property of his wife. It is apparent, from what has already been said, that we are of opinion that this lot was not the separate property of the wife. At the time Leonard advanced to Bichards the amount due on the note given for the purchase money of this lot, Mrs. Stewart was not the owner of the lot, and is not shown to have then had any interest therein.

Stewart testifies, that he was married in 1860, and that his wife then had $1500, which she loaned to him, but at what date is not shown. At the time of such marriage he was entitled to reduce the money and personal property of his wife-to possession, and upon so doing would become the owner thereof. A loan of money by the wife to the husband, prior to the passage of the Married Woman’s act of 1861, would invest him with the ownership, and she would cease to have-any interest therein. If, however, the loan was made after the passage of said act, the wife became simply a creditor of the husband, and if he invested the money thus borrowed in the purchase of land in his own name, no resulting trust would arise therefrom in her favor. When Stewart assigned the-contract of purchase to Leonard as a security, he had paid-no money of his own, or of any other person, for or on this property, if we except the installments of interest as they fell due on his note. If he intended to place the title of the lot-in his wife, it is apparent he never did so. The only conveyance to her was by the deed of Leonard left in escrow in the bank at Joliet. This deed was not made until long after the rights of Leonard had attached, and was never in fact delivered. We do not think Mrs. Stewart is shown to have had an interest in this property, or that Stewart was her agent. He was therefore incompetent to testify to transactions occurring between him and Leonard in respect of his property in the lifetime of Leonard. He was, as a matter of course, competent to testify in respect to the alleged admission and declarations made by him and testified to by other witnesses, and in respect of matters occurring since the death of Leonard and Fellows.

If Stewart’s testimony as to the ownership of the money advanced in paying Richards be rejected, as it must, there is but little competent evidence tending to sustain his contention. However, it is insisted there are circumstances proved tending. to sustain that view, one of which is, that Leonard, being in failing health, and intending to visit Colorado, made a deed of the property to Mrs. Stewart, but instead of delivering the same to her, or to any one for her, placed it in escrow in the First National Bank of Joliet, with this direction, indorsed over his signature, on the envelope containing the deed: “To be delivered in case of my death.—George M. Leonard.” He returned from Colorado, and revoked the power to deliver the deed, but permitted it to remain with the bank. A plausible argument is based upon this circumstance, and it is insisted that the direction «to deliver the deed in case of his death precludes the idea that Leonard could have understood that he held the title as security for the payment of money. It seems .strange, if Leonard held the title as a naked trustee, that he did not deliver the deed to the grantee at its execution. No reason is shown for placing it in escrow. It is .apparent that Leonard apprehended that he might not return from Colorado, •and if it was necessary to protect Mrs. Stewart, no reason is shown why the deed should not have been delivered to her at .once. The admissions of Stewart, testified to by Hobbs and Mrs. Fellows, clearly show that long after Leonard’s death the deed was still in escrow,—at least, was so regarded by Stewart,-—to be delivered when he should pay the sums he owed the Leonard or Fellows estate. It is apparent that the relations existing between Leonard and Stewart were friendly and confidential, and it can be of no importance now whether Leonard expected that the money he had advanced would be paid on the delivery of the deed, or intended a gift to Mrs. Stewart in the event of his death. As we have seen, after his return from Colorado, Leonard revoked the power of delivery with which -he had invested the cashier of the bank, and subsequently devised the property in controversy, subject to the condition before mentioned, to Fellows. In 1816 Mrs. Stewart made a demand on the bank for this deed, and on its refusal iso deliver it to her, obtained possession thereof by replevin, and immediately placed it on record. This was after Leonard’s death, and after the revocation of the direction to the bank to deliver it in ease of his death. It was perfectly competent for Leonard to revoke the direction to deliver the deed, as was done. The placing of the deed on record, under the circumstances, impaired no right of complainants, no intervening rights having accrued, and the case must, in all respects, be treated as if the deed had remained undelivered.

The will of Leonard was objected to as incompetent as evidence. While it would not be competent evidence, and could not be considered as tending to establish Stewart’s indebtedness to the testator, it was clearly competent for the purpose of showing Fellows’ right of property, or, in other words, that whatever right Leonard had in respect of this property passed to Fellows, and upon his death, to complainants. If it was established that Leonard owned the premises in controversy in fee, or held the same as security for the payment of money, it was competent, by any legitimate evidence, to show that his right and title therein had become vested in complainant’s testator. Nor are we prepared to say that this evidence was not competent to be considered, as tending to sustain the contention of appellees that the deed to Mrs. Fellows had not been delivered, and was not intended to be delivered by Leonard except upon the payment of the account open between himself and Stewart.

We are of opinion, however, that the decree is for too large a sum. It appears, from the evidence, that Leonard paid Eichards $550, that being the amount then due on Stewart’s note, and it also appears that afterwards Stewart paid Frank Fellows $50. We also think, while it is by no means clearly established, that $50 of the $550 paid Eichards came from Stewart, and that $500, only, was advanced by Leonard. There was no assignment of the note by Eichards to Leonard, and the whole case proceeds upon the theory that the money was advanced by Leonard to pay off and discharge the Eichards debt. The transaction was simply the advance of money by Leonard for the use of Stewart, and although the note taken up from Richards was . retained by Leonard, it is evident, we think, that it was regarded by the parties, and was, in fact, money due on account from Stewart to Leonard. Indeed, the clause in the will of Leonard before referred to, where he speaks of the money “due me on an account now open between us,” can, in the light of the circumstances here shown, relate to nothing else than the money thus advanced. It is not shown that there was any direction given by Stewart ‘as to the application to be made of the $50 paid to Frank Fellows, and it appearing that Stewart was indebted to Fellows upon the two other notes mentioned, we are unable to determine whether that sum should be credited upon the amount here in controversy or not. The evidence fails to show how it was in fact applied by Fellows, for although no direction-was given by Stewart, if applied by Fellows upon this claim, Stewart should receive credit for it here. The court allowed interest at ten per cent per annum, from October 13,1874, to the date of the decree. This was error. There was no proof of an agreement upon the part of Stewart to pay interest, and it follows, that but six per cent interest should have been allowed.

For this error the decree of the circuit court and the judgment of the Appellate Court are reversed, and the cause remanded to the circuit court, with directions to enter a decree foreclosing said deed, as a mortgage, for the amount advanced by Leonard as here found, with six per cent interest per annum thereon, deducting payments, if any are shown to have been made. It is ordered that each party pay the costs respectively made by them in the Appellate Court and in this court.

Judgment reversed.

Mr. Justice Baker, having passed upon this case in the Appellate Court, took no part in its consideration here.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    James M. Strean et al. v. Mary Louise Lloyd et al.

      Filed at Ottawa

      May 16, 1889.

    1. Ejectment—attorney’s authority—to institute andprosecute the suit. Under the statute, any written recognition of the attorney’s authority to commence an action of ejectment, duly proved as therein provided, is made presumptive evidence of such authority at the time the suit was brought.
    2. Where a written recognition of an attorney’s right to prosecute an action of ejectment for lands situate in one county, inserts the name of another county as the place where the suit is to be prosecuted, the naming of the wrong county will be regarded as a clerical error, and will be rejected as meaningless. Authority to prosecute such a suit necessarily implies authority to prosecute it in the county where the land lies.
    2. Same—amendment of declaration—in ejectment. The circuit court has authority, under section 23 of the Practice act, to allow the plaintiff in ejectment to amend the declaration by changing the parties and correcting the description of the land sued for.
    4. Same—sufficiency of evidence—as to extent of recovery. Proof of . title in A and B, and a conveyance from B to C, and a deed of trust from 0 to D, and his death, leaving the plaintiffs his only heirs, will not sustain a judgment in ejectment in favor of the plaintiffs for the entire interest in the land. At most, such evidence shows a right of recovery only of the undivided half of the land.
    5. Same—remittitur in Supreme Court—and entry of judgment for the proper quantity. Where judgment is rendered on the first trial in an action of ej e ctment for a tract of land, on proof of title to only an undivided half in the plaintiff, this court will not allow the plaintiff to enter a remittitur, and take judgment for the undivided half of the land.
    6. Appeals—reviewing facts—in ejectment. On an appeal in an action of ejectment, this court must review questions of fact as well as of law, when properly presented.
    7. Law and pact—as to effect of a deed. The effect of a deed is a question of law for the court; but whether there is an instrument purporting to be a deed conveying a particular tract of land, is a question of fact.

      Appeal from the Circuit Court of Iroquois county; the Hon. Alfred Sample, Judge, presiding.
    Messrs. Kay & Euans, for the appellants:
    The true question was, whether the attorney had authority to commence the suit, and not whether the plaintiffs afterward approved of what had been done. Frye v. Calhoun County, 14 Ill. 132; Kankakee v. Railroad Co. 115 id. 90; 11 id. 488; Weeks on Attorneys at Law, p. 351, see. 200.
    The court erred in allowing the amendment of the declaration bringing new parties and describing different lands; also in giving judgment of the whole premises in fee to the heirs of Walker. Lowe v. Foulke, 103 Ill. 59.
    Mr. William J. Ammen, and Mr. George F. Harding, for the appellees.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This was ejectment, in the circuit court of Iroquois county, by Mary Louise Lloyd, Josephine Walker and Carrie Walker, for the recovery of the north-west quarter and the west half of the south-west quarter of section 27, in township 25 north, range 12, east of the third principal meridian, in Iroquois county. Judgment was rendered for the plaintiffs, for the lands described, in fee, and the defendants appeal to this court.

It is objected that the court below erred in not dismissing the suit, because the plaintiffs’ attorney failed, in response to a rule of court laid upon him to that effect, to produce authority for commencing the action in the name of the plaintiffs therein. Under the statute, any written recognition of the authority to commence the suit, duly proved as therein provided, shall be sufficient presumptive evidence of such authority. (Eev. Stat. 1874, p. 445, sec. 16.) There was, here, produced such written recognition of authority, and there was nothing to disprove the effect thus given it by the statute. It is not, as counsel seem to suppose, evidence merely that there was authority, when that recognition in writing was executed, to prosecute the suit, but the statute makes it presumptive evidence that authority existed to commence the suit at the time it was commenced. The name of the county of Cook is inserted as the place where suit is to be prosecuted; but this is evidently a mere clerical error. Suit could only be commenced in the county where the land lies,—in Iroquois county, —and authority to prosecute the suit necessarily implies authority to prosecute it there. The words, “Cook county, ” should be rejected as repugnant and meaningless.

We are also of opinion that the objection urged on account of the court allowing the plaintiffs to amend the declaration by changing parties and correcting the description of the land sued for, is untenable. The amendments made were clearly within the power conferred upon the court by section 23 of the Practice act. Rev. Stat. 1874, p. 778.

It is unnecessary to consider other question of law presented by objections discussed in the printed arguments before us, since they may not arise upon the second trial of the case.

The judgment below must be reversed, because it is not sustained by the evidence. Plaintiffs proved prima facie title in James W. Gaff and Thomas Gaff, then conveyance of one undivided half by Thomas Gaff and wife to George K. Clark, and finally deed of trust by George K. Clark and wife to Sidney P. Walker, as whose heirs-at-law these plaintiffs sue. They show no other title to the land. This is not determined merely by weighing the evidence and ascertaining where, in our opinion, is the preponderance. It is the only ease which plaintiffs’ evidence tends to establish. In any view, therefore, all that these plaintiffs were entitled to recover is the undivided half of the lands described in the declaration.

But it is suggested that inasmuch as this case was tried by the court, by agreement of the parties, without the intervention of a jury, and no propositions of law were submitted to be held, the sufficiency of the evidence to sustain the judgment is not before us. We can not concur in this view. This -case comes directly to this court from the trial court, and so we must review questions of fact as well as questions of law, when properly presented. The effect of a deed is a question of law, but whether there is an instrument purporting to be a -deed conveying a particular tract of land, is a question of fact ; ■and it is a fact that the deed in trust to Sidney P. Walker only purports to convey an undivided half of the land, and hence the evidence fails to sustain the judgment.

Counsel for appellees, however, ask leave to enter a remittitur in this court as to the one undivided half of the land ; but this appeal being from a judgment rendered on the first trial in an action of ejectment, we have held that is not admissible. Lowe v. Foulke, 103 Ill. 58.

The judgment is reversed, and the cause is remanded to the court below for a new trial.

Judgment reversed.


author: Mr. Chief Justice Craig

text:
    The People ex rel. Charles E. Barber, Collector, v. Charlotte E. Chapman et al.

      Filed at Ottawa

      May 16, 1889.

    1. Drainage law—giving credit for old drains—at what time allowance to be made—remedy of land owner. Section 22 of the Drainage act authorizes the commissioners, where an old drain has been in whole or in part constructed, and such work can be advantageously utilized, to -estimate the value of such old ditch, and allow the owner proper credit for the same, on making an assessment for drainage purposes. But this -can not be done after the commissioners have made their assessment and filed the assessment roll with the town clerk.
    2. If the commissioners allow a land owner for ditches or drains previously made, and used by them, this must be done when they make the assessment, under section 26 of the act, and the amount they then allow may be credited on the assessment. If the land owner is not satisfied with the amount allowed him as a credit and deducted from his assessment, .he may appeal, under section 27 of the act. It is not competent for the county court, on application for judgment, to allow any credit for prior drains used by the district.
    3. Same—-filing assessment roll—as concluding authority of commissioners. After the assessment roll has been made and filed with the town clerk, the commissioners will have no power over it, the matter having thereby passed beyond their jurisdiction. If errors exist needing correction, the party aggrieved will have a remedy by appeal.
    Appeal from the County Court of Iroquois county; the Hon. H. G-. Bovie, Judge, presiding.
    Messrs. Harris & Hooper, and Mr. B. W. Hilscher, for the appellant:
    The commissioners of highways of each town are made drainage commissioners. Drainage act, 3 Starr & Curtis’ Stat. p. 208, sec. 1.
    Commissioners of highways may hold special meetings at the call of the president or any two commissioners, and no official business shall be transacted except at a regular or special meeting. Boad and Bridge act, 2 Starr & Curtis, p. 2139, sec. 10.
    The town clerk is made clerk of the drainage commissioners, and is required to keep a book known as the drainage record, in which he shall enter at length findings and orders of the-drainage commissioners pertaining to the subject of drainage. Drainage act, 3 Starr & Curtis, p. 208, sec. 2.
    When it shall appear to commissioners that a drain or ditch has been in whole or in part previously constructed, etc., and such work can be advantageously utilized, they may estimate the value of the old ditch, and allow the owner proper credit for the same. 3 Starr & Curtis, p. 214, sec. 22.
    The tax list shall show the balance of tax over credits or damages, or credits over tax, showing the amount due the district or land owner, as the case may be. 3 Starr & Curtis, p. 215, sec. 26.

      An appeal may be taken within ten days after the list is deposited with the town clerk, only on the ground that the-tax is greater than the benefits. 3 Starr & Curtis, p. 215, sec. 27.
    The commissioners may use money belonging to the district for the purpose of compromising suits and controversies arising under this act, etc., provided the acts of the commissioners shall be uniform as to the rights of all persons and property, 3 Starr & Curtis, p. 218, see. 38.
    There was no meeting at which the commissioners could legally transact business at Olm’s drug-store, because notice-to the third commissioner, of the meeting, was necessary, and was not given. Dillon on Mun. Corp. (1st ed.) secs. 200-202; School Directors v. Jennings, 10 Bradw. 643.
    The statute requires a record of all proceedings of the commissioners relative to drainage, to be made by the clerk. The-meeting at Olm’s drug-store was not considered a meeting of the board. No record was kept, and parol evidence to establish an agreement is not permissible. Town of Old Town v. Dooley, 81 Ill. 258.
    Messrs. Kay & Euans, for the appellees:
    By section 22 of the Drainage act, when a previously constructed drain is taken and used by the commissioners, they may estimate the value of such old ditch, and allow the owner-proper credit for the same. By section 26 the commissioners are required to make out a special assessment roll, setting down in separate columns the owner’s name, etc., and the damages allowed, if any, or any other credit to be given to the owner. By section 27 an appeal is given to the county, but the appeal shall be upon the ground, only, that such tax exceeds the benefits to accrue to the land.
    If it be admitted that the credit should have been made on the assessment roll, we still contend that the commissioners retain jurisdiction of that roll until the expiration of ten days from its filing with the town clerk. Turley v. People, 116. Ill. 433.
    What power or jurisdiction has the county court in granting the relief asked by appellees ? Upon this question, we think any defense can be made which shows that the assessment, or any part thereof, ought not to be collected. City of Chicago v. Burtice, 24 Ill. 489; Pease v. City of Chicago, 21 id. 500; Creote v. City of Chicago, 56 id. 423.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

This was an application by the county collector of Iroquois county for judgment against lands, to satisfy a special assessment levied by Danforth Drainage District No. 3, in the year 1886. Appellees, who were the owners of lands in the district, appeared in the county court and filed several objections to the application for judgment, and the court, upon the evidence introduced in support of the objections, allowed a rebate of $400 from the amount assessed against appellees’ lands, and rendered judgment for the balance. To reverse the judgment of the county court, the collector appealed.

The drainage district in question was organized under the act of 1885, and appellees’ lands were classified according to section 21 of the act, and no appeal was taken. The commissioners of the drainage district made an assessment as authorized by section 26 of the act, and no appeal was taken from the assessment. It appears, however, from the evidence introduced on the trial, that before the district was organized., appellees had constructed, on their own lands, certain ditches, which were, in part, at least, used by the drainage district, and after the assessment in question had been made, and after the assessment roll had been filed with the town clerk by the commissioners, appellees, before the time for an appeal from the assessment had expired, made application to the commissioners for a credit on the assessment for the ditches thus appropriated. Section 22 of the act authorizes the commissioners, where an old drain has been in whole or in part constructed, and such work can be advantageously utilized, to estimate the value of such old ditch and allow the owner proper credit for the same; but nothing was allowed appellees by the commissioners for the ditches they had constructed on their lands. The commissioners of highways, who are, under the act, drainage commissioners in their respective towns, when appellees made application for an allowance on the assessment,—thinking, no doubt, that they ought to have relief in some manner,—agreed to meet at Olm’s drug-store, (the office of the town clerk of the town,) for the purpose of adjusting the matter. A meeting was held, two of the commissioners, the town clerk, appellees and some other parties being present. The parties do not, however, agree in regard to what occurred at that meeting, and as no record of the proceedings was kept, the action taken is not entirely free from doubt. The clerk thinks that what was done could not be regarded as a meeting of the commissioners,—that no definite promise was made to do anything for Chapman. But he is not corroborated by the other evidence. From the evidence of the commissioners, of Chapman, and of the civil engineer of the district, it is manifest that the commissioners agreed to allow Chapman $400 on his assessment. But while we think the evidence discloses that the agreement was made, at the same time we are of opinion the commissioners had no authority to make an agreement of that character, and the agreement was void. As heretofore observed, before this meeting was held the commissioners had made the assessment and filed the assessment roll with the town clerk. After an assessment roll had been made and filed with the town clerk, the commissioners had no power or control over it,—the matter had passed beyond their jurisdiction. If errors in the assessment existed which ought to have been corrected, the party aggrieved had a remedy by appeal, but no power to review the assessment has been conferred on the commissioners, and in the absence of authority in the statute, their action was a nullity, as those officers have no powers except those conferred by the statute.

The position is, however, taken, in the argument, that appellees have a valid claim for the amount expended on the ditches, and when application is made for judgment against their lands to pay an assessment, whatever amount may be due them may be set off against the amount assessed against their lands. We do not concur in this view. The credit appellees may be entitled to receive arose under section 22 of the act, and the amount of the credit must, by the terms of the section, be determined by the commissioners. This may be done when the commissioners make the assessment, under section 26 of the act, and whatever amount they may allow may then be credited on the assessment. If the land owner is not satisfied with the amount allowed him as a credit and deducted from his assessment, he may appeal, under section 27 of the act. In this way the amount the land owner should be allowed on his assessment may be settled and determined. But we do not think it was contemplated by the legislature that the county court, on application for judgment against lands to pay a special assessment ordered by a drainage district, should enter upon the investigation of the amount an owner of an old drain or ditch should receive for the same on his assessment.

We think the court erred in allowing $400 in favor of appellees. The judgment will be reversed and the cause remanded.

Judgment reversed.


author: Mr. Justice Bailey

text:
    J. Marion Fort, Admr. v. Cornelia P. Richey, Admx.

      Filed at Ottawa

      May 16, 1889.

    1. Conveyances—separate contract as to payment—the deed and contract construed together. A father conveyed his farm to his son on July 30, for the expressed consideration of $5000, of which one-half was paid down. On the 5th of August following, the son gave the father, for the balance due, his obligation to pay the latter $175 per annum during his life, and as much more as might be necessary to the father’s support and comfort, containing a proviso, however, that the total of such payments or advances should not exceed $2500, and interest thereon : Held, that the contract of the son, and the deed to him, though bearing different dates, were parts of the same transaction, and should be construed together, as they both related to the same subject matter, and were based upon the same consideration.
    2. Same—contract as to payments—construed—as to liability being discharged after payment in part. A father conveyed land to his son for the expressed consideration of $5000. The son paid $2500 in cash, and gave his written agreement to pay the father, as an annuity, the sum of $175 during the life of the latter, and such further sums as might be necessary to minister to his comfort or satisfaction, but it was therein provided that the total of all such payments and advances should not exceed $2500, and interest thereon. The yearly payments were made during the father’s life, amounting to $1410: Held, that the son was not liable to the father’s estate for the balance of the $2500, or pinchase price, and that his liability was discharged by performance of his written agreement to pay the annuity during his father’s lifetime.
    3. Same—consideration—as expressed in the deed—whether conclusive. A deed, by expressing a consideration, does not necessarily import that such sum is to be paid by the grantee to the grantor in any event, so as to fix an indebtedness independent of a cotemporaneous agreement of the parties fixing the mode of payment and determining the amount which shall ultimately be paid. It is competent for the parties to agree upon a different consideration, or to agree that the consideration recited in the deed shall be payable only conditionally, and if they do so, and reduce their contract to writing, the same conclusive presumptions will arise as in other cases,—that all the terms of their contract are embodied in the writing.

      Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Henderson county; the Hon. Arthur A. Smith, Judge, presiding.
    Messrs. Kirkpatrick & Alexander, for the appellant:
    The only effect of the consideration clause in a deed is to •estop the grantor from alleging that it was executed without consideration, and to prevent a resulting trust in the grantee. For every other purpose it may be varied by parol. Wharton on Evidence, 1042, and note.
    When it was shown that half the consideration was not paid in money, and that in respect to it there existed a written contract, that was an end of the claimant’s case. A written contract can not be varied by parol. Gardt v. Brown, 113 Ill. 475.
    It is the duty of courts, in construing contracts, to discover .and give effect to the intention of the parties. Field v. Leiter, 118 Ill. 17; Wilson v. Roots, 119 id. 379.
    Courts have no right to make a contract, either by rejecting some of its provisions or by adding new ones, nor by placing upon its provisions an arbitrary construction. Welsch v. Savings Bank, 94 Ill. 191.
    In the interpretation, we ought not to deviate from the common use of the language. Potter’s Dwarris, 127.
    In seeking the intention of the parties to a written contract, “the courts are not authorized to construe the words used otherwise than in accordance with their plain, natural and obvious meaning, unless, from a consideration of the entire evidence, it shall appear that the parties did not intend to so use them. Manufacturing Co. v. Cook, 16 Bradw. 161.
    The son saw that the wants and comforts of the old gentleman might reach such a sum as would bankrupt him or his estate. So, then, there were three matters that required attention: First, that $175 per year was to be paid in any event; second, if that was not sufficient for the necessities and comfort of the old gentleman, then such additional sums as might be required was to be paid; third, it was possible that these wants and necessities might become a greater burden than the-son was willing or able to bear. So, in order to avoid trouble-in that direction, a limit,—a maximum sum beyond which he could not be required to pay,—must be fixed.
    Messrs. Grier & Stewart, for the appellee:
    The recital in the deed prima facie proves the consideration to have been $5000, and in the absence of other competent proof, the law presumes that this consideration was to be paid in money on the delivery of the deed.
    The deed was proper evidence to show the purchase of the land, and the amount to be paid therefor, and the oral evidence was proper to show 'the consideration to be paid for the land, and to contradict the recital of payment in the deed.
    That we had a right to make this oral proof, seems to be admitted by counsel and substantiated by their authorities, when they say, in their argument, “The amount of consideration, and its receipt, are open to explanation by parol proof in every direction.” In addition to the authority referred to by them, we would refer the court, on the same point, to the following: Ayers v. McConnel, 15 Ill. 230; Kimball v. Walker, 30 id. 482; Jones v. Buffum, 50 id. 277.
    There is nothing in the contract of August 5, 1881, showing an intention to release any portion of the purchase price of the-land.
   Mr. Justice Bailey

delivered the opinion of the Court:

Cornelia P. Bichey, administratrix of the estate of Richard W. Richey, deceased, filed in the County Court of Henderson county a claim against the estate of Thomas G. Richey, deceased, for the unpaid balance of the purchase money of certain lands sold and conveyed by Richard W. Richey to Thomas G. Richey in their life time. Said claim was contested by the administrator of Thomas G. Richey, and on trial in that court the sum of $1547.60 was allowed to the claimant. On appeal to the Circuit Court the claim was disallowed, but on a further appeal to the Appellate Court the judgment of the Circuit Court was reversed and the cause remanded to that court for a new trial. Another trial was thereupon had in the Circuit-Court before the court without a jury, resulting in a finding and judgment in favor of the claimant for $1750. This judgment was affirmed on appeal by the Appellate Court, and by a further appeal the record is brought to this court.

At the trial the following facts appeared: Thomas G-. Bichey was a son of Bichard W. Bichey. On the 30th day of July, 1881, Bichard W. Bichey and wife executed a deed to Thomas G-. Bichey conveying to him certain lands, said deed reciting that the conveyance was made “for and in consideration of five thousand dollars in hand paid.” It seems to be conceded that $2500 of the consideration was paid at the time. For the remaining $2500 Thomas G-. Bichey executed and delivered to Bichard W. Bichey the following agreement:

“Kirkwood, Ills., Aug. 5, 1881.
“For a valuable and sufficient consideration, I hereby agree, binding my heirs and executors or administrators to the same, to pay B. W. Bichey one hundred and seventy-five dollars, on the fifth day of August of each year during his natural life,
“Should said annual payment prove insufficient for the necessities, wants or comfort of the said B. W. Bichey, I, by these presents, bind myself and heirs to advance such additional sums of money as may from time to time be required or necessary to supply all such wants, or to in any way minister to his comfort or satisfaction: Provided always, and this pledge is made on condition that the sum total of all such advances and payments shall not exceed the amount of interest and principal of twenty-five hundred dollars. Interest commencing on same Aug. 5, 1881, and reckoned at the rate of seven per cent per annum.
Thomas G. Bichey.”

In addition to the deed and agreement, evidence was introduced on .behalf of the claimant of certain statements made by Thomas Gr. Bichey in his life time and subsequent to the date of the agreement as follows: John Marshall, a brother-in-law of Bichard W. Bichey, testified: “Thomas told me that he had purchased the two eighties and that he was to pay $5000 for them. He said that $2500 of the money was left in his hands to be paid to his father as it might be necessary. He said they had a contract about it, but did not tell the nature of the contract. He spoke to me several times about paying money on it. He said they thought the money would be safer in his hands than with his father; that his father might spend it faster than necessary if he had it. He said it was to be paid to him from time to time as he might need it. I had one of these conversations with Thomas about a month •or six weeks before he died. He said he thought he had paid ¡about $1400 or $1500 on the contract.” On cross-examination the witness said: “Thomas said he had a written contract with his father in regard to the matter. Have seen the contract since B. W. Bichey died. This is the contract,” (referring to the contract above recited). Edward Bichey testified that Thomas Gr. Bichey told him that he had purchased the farm and agreed to pay his father as he needed it; “that he thought it best to get it fixed up as his father was getting frail. He said he thought it best for him to keep the money for him, as he might spend it if he got it.”

It was proved that Thomas Gr. Bichey died in December, 1885, and that he had then paid on the contract with his father the sum of $1410.60. After his death, and prior to the •death of his father which occurred in February, 1886, his legal representatives paid on said contract the sum of $156.25.

The foregoing being all the evidence, the defendant’s counsel submitted to the court the following propositions to be held as the law in the decision of the case which the court marked “refused,” viz.:

1. “The court finds that the sole and only cause of action in this case is upon the contract in evidence, dated August 5, 1881.

2. “As a matter of law, the court holds that, under the contract in this case dated at Kirkwood, 111., August 5,1881, signed by Thomas Or. Richey, said Thomas G. Richey, his heirs, executors or administrators, were not bound to pay said R. W. Richey more than $175 per year, or if that should prove insufficient, then such additional sum or sums of money as might from time to time be required or necessary for the wants, comfort or satisfaction of said R. W. Richey.

3. “As a matter of law, the court holds, that under the contract in this case, dated August 5, 1881, signed by Thomas G. Richey, neither he, the said Thomas G. Richey, nor his . heirs, executors or administrators, were bound to pay any sum whatever after the death of said R. W. Richey, unless during his life said Thomas G. Richey or his heirs, executors or administrators, should fail to pay said sum of $175 per year, or a sum sufficient for the necessities, wants or comforts of said R. ,W. Richey during his life.”

By these propositions the proper construction to be placed upon said contract, and the liability of the estate of Thomas G. Richey under the evidence, are directly presented as questions of law, and those questions are therefore open for consideration in this court.

First, then, does the evidence tend to establish any liability on the part of Thomas G. Richey or his estate apart from and independent of the contract ? It can not be doubted that the contract and deed are parts of the same transaction, and that they should therefore be construed together. True they bear different dates, the deed being dated July 30 and the contract August 5, but both relate to the same subject matter and are based upon the same consideration, the contract being given in consideration of $2500 of the purchase money named in the deed. The deed, by expressing a consideration of $5000, did not necessarily import that that sum was to be paid by the vendee to the vendor in any event, so as to create an indebtedness existing independently of their cotemporaneous agreement fixing the mode of payment, and determining the amount which should be ultimately paid. It was competent for the parties, notwithstanding the recital in the deed, to agree upon a different consideration, or to agree that the consideration recited should be payable only conditionally, and as they have entered into such contract and reduced it to writing, the same conclusive presumptions arise as in other cases, that all the terms of their contract are embodied in the writing. If then the estate of Thomas G-. Richey is still liable for any portion of the purchase money of said land, such liability must arise from the terms of the agreement of August 5, 1881, and the existence of such liability must be determined solely by the provisions of that instrument.

The contract itself is simple and its terms are free from any material ambiguity. As it appears in the record, it consists of two paragraphs. The first paragraph provides merely for the payment by Thomas Gr. Richey to Richard W» Richey of an annuity of $175 during his natural life. The second paragraph provides that, in case the annuity should “prove insufficient for the necessities, wants or comforts” of Richard W. Richey, Thomas Gr. Richey should pay such additional sums of money as should be required or necessary, from time to time, “to supply all the wants or to in any way minister to the comfort or satisfaction” of Richard W. Richey, with the proviso, however, that the aggregate of the payments to be made under the contract should not exceed the sum of $2500 and interest thereon at the rate of seven per cent per annum from the date of the contract. This was all Thomas Gr. Richey agreed to do. It was in substance an agreement to provide for the support and maintenance of Richard W. Richey during his natural life, in such manner that all his necessities, wants and comforts should be supplied, the total expenditure in that behalf not to exceed the $2500 and interest. This was a contract which it was perfectly competent for the parties to make. Richard W. Richey had a right to sell his farm to his son for $2500 cash and a contract by his son to support and maintain him during life, and the rights and obligations of the parties are in no resjiect affected by the fact that the cash payment and the ultimate amount which his son might become liable to pay under the contract were added together and inserted in the deed as the consideration of the conveyance.

No pretence is made that Thomas G-. Richey did not fully perform his contract so long as he lived, or that his legal representatives did not perform it after his death during the residue of the life time of Richard W. Richey. Upon what theory then can it be said that a balance still remains due on said contract from his estate ? The contract contains no promise or undertaking, either in terms or by implication, to pay such balance. An attempt is made to obtain an interpretation favorable to the theory of the claimant by transposing the several clauses of the contract, but the transposition insisted upon consists not only in taking the proviso for the principal clause, but in changing that which was manifestly intended merely as a limitation upon the ultimate amount which Thomas G. Richey should be called upon to pay, into an absolute promise to pay that amount in full. We know of no rule which can justify the courts in taking such liberties with contracts under guise of construing them. It would have the effect of-importing into them terms to which the parties have never agreed, thus in reality making contracts for the parties'instead of giving construction to such as they have made for themselves.

We are of the opinion that the construction of said contract contended for by the defendant is the true one, and that the foregoing propositions submitted by the defendant’s counsel to be held as the law in the decision of the case were substantially correct and should have been adopted by the court. It follows that the Circuit Court erred in refusing said propositions, and that the Appellate Court erred in affirming the judgment. The judgments of the Circuit and Appellate Courts will be reversed, and the cause will be remanded to the latter court for further proceedings not inconsistent with this Opinion.

Judgment reversed.


author: Mr. Justice Wilkin

text:
    Hiram Gould et al. v. Mary E. Sternberg.

      Filed at Ottawa

      May 16, 1889.

    1. Reversal—effect upon a prior sale under the judgment—as to parties and privies—and third persons. Where property of a defendant has been sold on a judgment, afterward reversed, to a party to such judgment, the defendant can recover it back. If the purchaser be a third party, he can recover from the plaintiff the value thereof; but the title to the property, in that case, will not be affected by the reversal. No one but the defendant or his assignee can take advantage of such reversal; and he may waive that right, or if he has lost nothing by the judgment, he can, of course, gain nothing by its reversal.
    2. A sale on execution, based on a judgment afterward reversed, is not absolutely void, but voidable, only, at the election of the owner of the property sold. If the property of a third person is sold in satisfaction of the debt, the defendant in the -judgment can take no advantage of the reversal.
    3. A creditor under a judgment sued out an execution thereon, under which he became the purchaser of a tract of land which the debtor had fraudulently sold and conveyed to another. The creditor then filed his bill against his debtor and his grantee, to set aside the conveyance of the former to the latter as fraudulent, and a decree was entered therein setting aside the conveyance and vesting the title in the complainant. The judgment under which the sale was made was reversed about the date of the decree, and no steps were taken for a rehearing in the chancery suit, or bill of review filed: Held, that the reversal of the judgment did not operate to divest the title of the creditor as vested by the decree, and that such decree could not be attacked collaterally.

      4. Attacking judicial proceedings collaterally— effect of mere error. A decree, however erroneous it may be, is binding upon the parties until vacated or reversed.
    5. Same—determination of a fact—conclusiveness—in a collateral pro- ' seeding. A judgment or decree which necessarily affirms the existence of any fact, is conclusive upon the parties and their privies whenever the existence of that fact is again in issue between them. So a decree vesting title in the complainant is res judicata as to the defendants and their privies, and can not be questioned by them in an action of ejectment, even upon facts not presented in the prior suit.
    6. Affirmance of decree—conclusive as to error. Where a decree is affirmed by the Supreme Court, it must be regarded as free from any error.
    7. Chancery—newly discovered matter—how availed of—after reversal. Where, after the cause has been submitted to the court on a bill to set aside a conveyance made in fraud of creditors, and confirm the title to land in the complainant, as purchaser of the same under execution, the decree to be entered of the term the cause is submitted, the judgment under which the sale was made is reversed, the defendant may, on application at the next term, obtain a rehearing if he is entitled to the benefit of the reversal; or he may file a bill in the nature of a bill of review, upon newly discovered matter, and thus obtain relief.
    Writ of Error to the Circuit Court of Will county; the Hon. Charles Blanchard, Judge, presiding.
    This is an action of ejectment, commenced by Mary E. Sternberg, against Hiram Gould, George Gould and Charles Gould, claiming in fee the north half of the south-east quarter of section 9, in township 32, etc. Pending the suit, Charles Gould died, and his administratrix, Clara Gould, was made party defendant. A jury was waived, and upon a trial the court found defendants guilty, and that the right of possession in fee simple was in plaintiff. A new trial under the statute was granted, and upon a second trial before the court a like finding was had, and a motion for a new trial under the statute denied. A motion for a new trial at common law was denied, and judgment entered upon the finding of the court. To-this action of the court defendants duly excepted, and all except Clara Gould bring this record here for review, on error.

      Messrs. Haley & O’Donnell, for the plaintiffs in error:
    Where a party to a suit becomes the purchaser of land under execution issued upon the judgment therein, a reversal of the judgment will divest him of his title.under the purchase. Fergus v. Woodworth, 44 Ill. 374; Guiteau v. Wiseley, 47 id. 433; Powell v. Rogers, 105 id. 318.
    Mr. E. E. Babbeb, and Mr. B. M. Munn, for the defendant in error:
    The decree of the DuPage circuit court of September, 1873, and affirmed by this court at its September term, 1876, is res judicata, and conclusive. Wadhams v. Gay, 73 Ill. 423; Gilpeck v. Dubuque, 1 Wall. 175; McCormick v. McClure, 6 Black. 466; Steelart v. Lye, 13 Otto, 66.
    A former adjudication respecting the title of the defendant in error has stood unreversed and without modification for nearly nine years, and is conclusive of all questions of right, title and equity involved in that case. Hawley v. Simons, 102 Ill. 115; Fahs v. Darling, 82 id. 142; Jenkins v. International Bank, 111 id. 468; Attorney General v. Railroad Co. 112 id. 520; Dyer v. Hopkins, id. 168.
    In the Du Page case, Hiram Gould pleaded title in his father, J. Gould, and attempted to establish it by a forged deed, when instead he might have pleaded title in himself, and that Stern-berg was claiming title based upon a void judgment, which had been or would be reversed, and failing to avail himself of this, he stood by his false and fraudulent pleas; wherefore, we insist that this decree upon which we rest, sweeps away every defense which Hiram Gould might have made in that case,—and this, too, of every subsequent suit respecting the title between the same parties. Kelly v. Donlin, 70 Ill. 378; Howell v. Goodrich, 69 id. 556; Rogers v. Higgins, 57 id. 244; Briscoe v. Lloyd, 64 id. 33.
    The question of judgment reversed, relied upon by the plaintiff in error, presents a collateral issue, which can not be made available. Heacock v. Lubukee, 108 Ill. 644; Goltra v. Green, 98 id. 300; Swiggart v. Harber, 4 Scam. 364.
    By the decree, Hiram Gould, and those holding under him, are estopped from pleading a reversal of, or relying on, the judgment of reversal, because Gould, at the time of the trial in the Du Page circuit court, pleaded title to the land in James Gould, his father, and relied upon a fraudulent and forged deed to defeat Mr. Sternberg’s title by sheriff’s deed, etc. Greeley v. Thomas, 56 Pa. St. 35; Wells v. Higgins, 13 Am. Dec. 182; Franklin v. Palmer, 50 Ill. 202.
    We submit that when a party had ample opportunity, for a period of five years from the date of said decree, for an effort to reverse, set aside or modify it, but has acquiesced therein for nine years, he can not be allowed to attack said decree in a collateral proceeding. Hay v. Baugh, 77 Ill. 500; Dempster v. West, 69 id. 613; Hays v. Cassell, 70 id. 669.
    In no case could the defendant Gould avail himself of the benefit, if any, of judgment reversed, until he had offered to pay the plaintiffs the money paid upon the purchase of the property at sheriff’s sale.
    By reference to the decision affirming this decree, (84 Ill. 170,) there can be no question as to the jurisdiction That the DuPage circuit court had complete jurisdiction of the parties and the subject matter of the title to said land as acquired under sheriff’s deed, see Gould v. Steinburg, 84 Ill. 170. See, also, above, 13 Otto, 66, 71.
   Mr. Justice Wilkin

delivered the opinion of the Court:

To maintain the issue on her part, plaintiff below proved a common source of title in Hiram Gould. She then introduced in evidence, without objection, a sheriff’s deed for the premises in question, dated September 23, 1881, reciting, that at the January term', 1868, of the Will circuit court, as administratrix of her deceased husband, Phillip A. Sternburg, she obtained a judgment against said Hiram Gould for $322.40, upon which, by execution and. sale, said deed was executed and delivered to her; also, a bill in chancery in the same court, by her, as complainant, against Hiram Gould, Elizabeth Gould, Delaney Jackson and James Gould, in which, among other things, it is alleged, that on the 11th day of November, 1856, one Eichardson and Hiram Gould made and delivered to Phillip A. Sternburg, since deceased, a promissory note for $200, due in three years, with interest; that said.Phillip, prior to his death, had brought suit upon said note, and that afterward, January, 1868, she, as his administratrix, recovered the judgment and obtained the deed above mentioned; that at the time of making said note said Hiram Gould owned the land described in said sheriff’s deed, in fee, unincumbered, and continued to own the same up to and at the time of said sale, but in November, 1859, for the purpose of preventing the collection of said note, and without any consideration, he, with his wife, Elizabeth, conveyed the same to said Jackson, and that afterwards said Jackson and wife, without consideration, reconveyed the same to said Hiram Gould, but that said Hiram secretly held said deed for several years, and on May 1, 1880, placed it on record, with the name “Hiram" erased and the name “James” inserted, thereby making the conveyance to James Gould instead of Hiram Gould, which change is alleged to have been a forgery, made for the purpose of cheating and defrauding creditors of said Hiram. She also introduced in evidence the answer of Hiram Gould, in which he avers that the conveyance made by him to Delaney Jackson was in good faith, for a valuable consideration, and that said Jackson took possession under the same, and afterwards conveyed to James Gould. The answer denies, generally, all the allegations of said biE. The answer of James Gould was also introduced, which is a general denial of the bill. The prayer of the bill was, that said conveyances should be set aside as against the complainant therein, and that she be put in possession of said premises.

The decree, after finding the facts substantially as alleged in the bill, decrees that the deed from said Hiram and wife to Jackson be held void, and a cloud upon complainant’s title, and orders that “the title to the premises described in said sheriff’s deed be declared vested in her (the complainant) under said sheriff’s deed, and she is entitled to the possession of the same against defendants and any person holding under them, and that a writ of possession issue.”

This cause was submitted at the September term, 1873, and taken under advisement, with a stipulation that the decree should be rendered as of that term. The case was decided March 4, 1874. On appeal to this court the decree was affirmed, September 19, 1876.

Hiram Gould, on behalf of plaintiffs in error, testified, that Charles Gould, the father of part of plaintiffs in error, and George Gould, had been in possession of said premises since 1877. There was also offered in evidence on their behalf certain deeds from James Gould and wife to said George Gould and Charles Gould, but neither of them described the land in controversy in this suit. They proved, over the objection of defendant in error, that the judgment of January, 1868, in favor of defendant in error, against Hiram Gould, was, by an order of this court, made on the 30th of January, 1874, reversed, (see 69 Ill. 531,) and it is upon this last evidence that the decision must turn, it being insisted by plaintiffs in error that the effect of such reversal was to annul and wipe out the legal effect of all that had been done under and in pursuance of that judgment.

It is well settled in this State, that when property of a defendant has been sold on a judgment, afterward reversed, to a party to such judgment, the defendant can recover it back. If the purchaser be a third party, he can recover from the plaintiff the value thereof, but the title to the property, in that case, is unaffected by the reversal. No one but the defendant or his assignees can take any advantage of such reversal, and there can be no question but that he may waive that right, or, if he has lost nothing by the judgment, he can, of course, gain nothing by its reversal. A sale on execution, based on a judgment afterward reversed, is not, therefore, we conclude, absolutely void, but voidable only, at the election of the owner of the property sold.

The question at issue in the chancery cause between defendant in error and Hiram Gould and others, was, whether or not she should have the title to this land, and the decree was in her favor. However erroneous that decree might have been, it was binding upon the parties until vacated or reversed; but having been affirmed by this court, it is to be regarded as free from all errors. A judgment or decree necessarily affirming the existence of any fact is conclusive upon the parties or their privies whenever the existence of that fact is again in issue between them. (Freeman on Judgments, see. 249.) The decree vesting title in defendant in error is res judicata as to Hiram Gould and James Gould and their privies, and can not be questioned in this suit.

But it is insisted, on the part of plaintiffs in error, that inasmuch as the judgment upon which that decree was based was not reversed until after the decree was rendered, and the court rendering that decree had no jurisdiction to pass upon the validity of that judgment, therefore said decree may be thus collaterally attacked,—in other words, while that decree would be binding upon the parties as the facts existed when it was rendered, yet subsequent events have so changed those facts as to destroy the -binding effect thereof. If it be conceded, in the broadest terms, that Hiram Gould could not avail himself of the reversal in the chancery proceeding, it does not follow that he may do so now. Many, perhaps a majority of cases, in which the doctrine of res judicata is enforced, are' cases in which facts have arisen or been discovered after the adjudication, which, if they had existed or been known at the former trial, might have changed the result. It is not true, however, in this ease, that the reversal might not have been set up in the chancery proceeding. Although the cause was submitted before the order of reversal by this court was made, it had not yet been decided, and there can be no question that if proper notice had been given and an application made to the chancellor for a rehearing at the next term of court, it would have been granted, if made by a party entitled to the benefit of the reversal. He might also have filed his bill, in the nature of a bill of review, upon newly discovered matter, and thus obtained relief. (Story’s Eq. Pl. see. 413; Boyden et al. v. Reed, 55 Ill. 458.) We think it is clear that he could not lie by, after obtaining his reversal, and permit the decree to become final in the circuit court and affirmed in this court, making no effort in that proceeding to reap its benefits, and now, for the first time, set it up to defeat the title therein decreed.

It is equally clear, that under the proof here made neither of plaintiffs in error is in a position to take any advantage of the reversal of that judgment. Hiram Gould, the defendant, might recover from defendant in error whatever .property he lost by reason of the erroneous judgment. What has he lost ? By his answer in the chancery proceeding, and by all the evidence in that case, as between himself and James Gould, the property of the latter was sold in satisfaction of that judgment. It is true the court held, that as between defendant in error and James Gould it should be treated as the property of Hiram; but it is too well understood to require the citation of authorities, that in all such cases the conveyance, though void as to creditors, is valid and binding between the parties. Whether or not James Gould could set up the reversal of said judgment as against defendant in error, is not material. Neither he nor those shown to be in privity with him are seeking to do so.

The judgment of the circuit court will be affirmed.

Judgment affirmed.


text:
    Owen T. Jones v. John Fortune et al.

      Filed at Ottawa

      May 16, 1889.

      1. Appears—reversal and remandment—by Appellate Court—power and duty of that court—the trial court directing what theverd/ict shall be. It is competent for the trial court to exclude the plaintiff’s evidence from ^he jury, where it has no legitimate tendency to establish the cause of action alleged; and the Appellate Court is authorized, on appeal, to do what it shall hold the trial court should have done in this respect upon the trial.
    2. H the Appellate Court reverses the judgment of the trial court for error in its rulings of law, it must remand the cause for a new trial, unless it shall find that the evidence does not tend to prove the cause of action alleged, for otherwise it will deprive the plaintiff of the right to a trial by jury.
    3. Same—finding of facts—by Appellate Court—and recital thereof in final judgment—how far conclusive. If the Appellate Court refuses to remand the cause for the reason that,the evidence does not tend to prove the cause of action alleged, it must “either wholly or in part find the facts concerning the matter in controversy different from the finding of the trial courtand in that event it is required to recite in its final order, judgment or decree, the facts as found.
    4. The facts found by the Appellate Court, when recited in its final judgment, are not subject to controversy in this court; but this court may inquire whether the law has been correctly applied to them, and thus determine whether the refusal to remand was proper.
    5. Same—final judgment—in Appellate Court. A judgment of the Appellate Court reversing and.remanding a cause is not a final judgment, and no appeal lies from such judgment to this court.
    Appear from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. A. N. Waterman, Judge, presiding.
    Messrs. H. T. & L. Herm, for the appellant.
    Messrs. Hynes & Dunne, for the appellees.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This was trespass, by Owen T. Jones, against John Fortune and Patrick O’Grady, for a personal assault. The defendants pleaded the general issue, and several special pleas admitting but justifying the trespass, on different grounds. Issues were joined on all of the pleas. -The jury returned a verdict finding the defendants guilty, and assessing the plaintiff’s damages at $6000. The court overruled a motion for a new trial, and entered judgment upon that verdict. The defendants appealed to the Appellate Court for the First District, and that court reversed the judgment for error in giving a certain instruction and in admitting certain testimony, and refused to remand the cause, and gave final judgment, there, for the defendants. There is no arrest of the judgment. It is simply reversed, and a new trial is denied.

Article 2, section 5, of the present constitution, provides that “the right of trial by jury, as heretofore enjoyed, shall remain inviolate.” This case belongs to the class of cases in which the right of trial by jury was enjoyed before the adoption of the present constitution, and it is therefore within this guarantee.

Under our decisions, it is competent for the trial court to exclude the evidence from the jury where it has no legitimate tendency to establish the cause of action alleged, and the Appellate Court is authorized, on appeal, to do what it shall hold the trial court should have done, in this respect, upon the trial. (Commercial Ins. Co. v. Scammon, 123 Ill. 601.) But it is manifest that if the Appellate Court shall reverse the trial court for error in its rulings of law, it must remand the cause for a new trial, unless it shall find that the evidence does not tend to prove the cause of action alleged, for otherwise it will deprive the plaintiff of the guaranteed right of trial by jury. If the Appellate Court shall refuse to remand the cause, for the reason that the evidence does not tend to prove the cause of action alleged, it must, “either wholly or in part, find the facts concerning the matter in controversy different from the finding of the trial court, ” and in that event it is required to recite, in its final order, judgment or decree, the facts as found. (Practice act, sec. 88, 2 Starr & Curtis’ Stat. p. 1842.) The facts, when thus recited, are not the subject of controversy in this court, but we may inquire whether the law has been correctly applied to them, and therefore determine whether the refusal to remand was proper.

A judgment reversing and remanding a cause is not a final judgment, and no appeal lies from such a judgment of the Appellate Court to this court. Anderson v. Fruitt, 108 Ill. 378; Harzfeld et al. v. Converse, 105 id. 534.

Appellant is entitled to a new trial, unless the evidence does not tend to prove the cause of action alleged; and he is entitled tó have- this court review the law as applied to the findings of the Appellate Court in this respect. Were we to act upon the present judgment as a final judgment, we would be compelled to affirm the judgment of the Appellate Court, unless we found that it erred in its rulings of law in respect of instructions and the admission of evidence, and thus cut off all opportunity of another trial, notwithstanding it might be manifest that there are grounds of recovery unaffected by those rulings.

The judgment is reversed, and the cause is remanded to the Appellate Court, with directions to that court either to recite in its final order, judgment or decree, its finding of facts whereon it bases its final judgment of reversal and refusal to remand the cause, or that it enter an order remanding the cause to the trial court for further proceedings in conformity with its opinion as filed in the case.

Judgment reversed.


text:
    Michael C. McDonald v. Marshall J. Allen et al.

      Filed at Ottawa

      May 16, 1889.

      Appeals—what questions to be considered—conclusiveness of affirmance by Appellate Court. Where an action is tried by the court below without a jury, and no exceptions are taken as to the admissibility of evidence, and no written propositions of law are submitted to the court, and the Appellate Court affirms the judgment, that judgment will be conclusive, and on an appeal to this court there will be nothing for It to consider.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. E. W. Clifford, Judge, presiding.
    Messrs. Meeoh & Asay, for the appellant.
    Mr. L. S. Hodges, for the appellees.
   Mr. Justice Bailey

delivered the opinion of the Court:

This was an action of debt, brought by Marshall J. Allen, George H. Allen, Augustus S. Pyatt and Edson Bradley Jr., upon an appeal bond, executed to the plaintiffs, by Michael C. McDonald, the defendant, as surety for Edward G. Asay on an appeal from the Circuit Court of Cook county to the Appellate Court of the First District. Said bond, after reciting the recovery by the plaintiffs, in the Circuit Court, of a decree against Asay for $2850 and costs, and that Asay had prayed for and obtained an appeal therefrom to the Appellate Court, was conditioned that Asay should prosecute his appeal with effect, and pay the amount of the decree, interest, damages and costs rendered and to be rendered against him, in case said decree should be affirmed. The declaration averred the affirmance of said decree by the Appellate Court and the recovery by the plaintiffs of their costs in that court, and alleged as a breach the non-payment of the decree, interest and costs. The defendant filed a plea denying the affirmance of the decree by the Appellate Court, and upon the issue j oined upon that plea, the cause was tried by the court without a jury. Upon such trial said issue was found for the plaintiffs and their damages assessed at the amount of the decree, interest and costs, and judgment was rendered accordingly.

Ho complaint is made of any rulings of the court during the progress of the trial, and no propositions were submitted to be held as the law in the decision of the case, the only contention being that the finding of the court was contrary to the evidence. The plaintiffs read in evidence the bond sued on, and a certified copy of an order of the Appellate Court affirming a decree of the Circuit Court in favor of the plaintiffs and against said Asay, and rendering judgment in favor of the plaintiffs for their costs in that court. The defendant thereupon introduced evidence tending to show that the decree actually taken to thé Appellate Court by appeal was one rendered in a suit in which Asay was defendant and the plaintiffs and one Stevens were complainants. He thus attempted to raise a question as to the identity of the decree affirmed. The order of affirmance was at least prima facie evidence that the decree affirmed was the one appealed from, and such identity was found by the trial court, and that finding has been affirmed on appeal by the Appellate Court. The question thus raised —and it is the only one presented by the present record—is a mere question of fact upon which the judgment of the Appellate Court is conclusive, and there is therefore nothing left for us to do but to affirm the judgment.

Judgment affirmed.


author: Mr. Justice Magbudeb

text:
    S. C. Ames et al. v. Jacob Sankey et al.

      Filed at Ottawa

      May 16, 1889.

    1. Sale of land fob taxes—of the process, and the form thereof. Section 194 of the Revenue law provides, that on the day advertised for sale, the county clerk, assisted by the collector, shall carefully examine the list upon which judgment .has been rendered, etc., and shall make a certificate, to be entered on said record, following the order of court, that such record is correct, and that the judgment was rendered upon the property therein mentioned, for the taxes, interest and costs due thereon. This certificate is to be attested by the clerk, under the seal of the court, and is made the process under which all sales are made. Without such attested certificate a sale of land, or any interest therein, is void, and no title can be derived from any such sale.
    2. Where the law expressly directs that process shall be issued in a specified form, such a provision is mandatory. This rule applies to that which stands in the place of process, and performs its office.
    3. Clotjd upon title—void tax certificates. Where tax certificates are issued upon a void sale for taxes, a court of equity will set them aside as clouds on the title, at the suit of the owner, although the time of redemption from the sale has not expired, the owner being in possession or the land being vacant and unoccupied.
    4. Same—setting aside void tax certificates—upon terms. On bill to set aside tax certificates when the sale is void, as being a cloud on title, the amount the complainant should be required to pay to entitle himself to the relief sought, is the amount paid at the tax sale, together with the subsequent taxes paid, and interest at the rate of six per cent per annum from the dates of the respective judgments.
    Writ of Error to the Appellate Court for the First District; —heard in that court on writ of error to the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    Mr. H. S. McCartney, for the plaintiffs in error:
    Can a party who suffers his land to be sold for taxes, come into a court of equity before the time of redemption expires, and by some technical error not affecting the justice of the tax, have the sale cancelled without paying the statutory rates? Gage v. Rohrbach, 56 Ill. 262; Gage v. Chapman, id. 311; Phelps v. Harding, 87 id. 442; Gage v. Nichols, 112 id. 269.
    Mr. F. W. S. Brawley, for the defendants in error:
    All the facts stated in the bill are admitted by the demurrer. Gage v. Bailey, 115 Ill. 646; Cobb v. Railroad Co. 68 id. 233.
    The clerk’s certificate was required by section 194, chapter 120, of the Revised Statutes. Eagan v. Connelly, 107 Ill. 466.
    The certificate of the clerk was indispensable as his attestation to an execution. There was no precept, and no authority to make the sale in this ease. Sidwell v. Schumacher, 99 Ill. 426; Eagan v. Connelly, 107 id. 466; Bell v. Johnson, 111 id. 381.
    The pretended sales were clouds upon complainants’ title, and he was entitled to the relief sought, in equity. Phelps v. Harding, 87 Ill. 442; Farwell v. Harding, 96 id. 32; Bell v. Johnson, 111 id. 374; Gage v. Rohrbach, 56 id. 262; Barnett v. Cline, 60 id. 205; Gage v. Chapman, 56 id. 311; Gage v. Billings, id. 268; Gage v. Abbott, 99 id. 366; Gage v. Nichols, 112 id. 269; Wing v. Sherrer, 77 id. 200; Reed v. Tyler, 56 id. 288; Hodgen v. Guttery, 58 id. 431; Brooks v. Kearns, 86 id. 547; Cooley on Taxation, 542, 543.
    It was error to sustain the demurrer to the bill for want of equity, there being equity in the bill, and the demurrer going to the whole bill. Westcott v. Wicks, 72 Ill. 524; Crane v. Hutchinson, 3 Bradw. 31.
    For want of the proper legal process of sale, the tax certificates were void, but they operated as a cloud on complainants’ title, and it is well settled that equity will remove clouds from the title to real estate. Wing v. Sherrer, 77 Ill. 200; Whitney v. Stevens, 97 id. 482; Campbell v. McCahan, 41 id. 45; Hodgen v. Guttery, 58 id. 431.
    The case made by the bill seems to fall directly within the principle of the cases in Phelps v. Harding, 87 Ill. 472, Farwell
      v. Harding, 96 id. 32, Durfee v. Murray, 7 Bradw. 213, Peacock v. Carnes, 110 Ill. 99, and Gage v. Rohrbach, 56 id. 262.
    In this case, the court say a worthless certificate in a tax sale is a cloud on the title. Gage v. Chapman, 56 Ill. 311; Bell v. Johnson, 111 id. 374; Eagan v. Connelly, 107 id. 458.
    The sales having been made without the certificates of the clerk, as required by the statute, were therefore illegal, and the Supreme Court of Illinois has decided “that in the case of a tax certificate issued upon an illegal sale of land for taxes, a court of equity will take jurisdiction to annul the sale and cancel the tax certificate, and thus remove a cloud upon the title of the land.” Gage v. Chapman, 56 Ill. 314.
    While Sankey might have had a defense at law, it can not be said he had a remedy at law. (Gage v. Billings, 56 Ill. 268.) Sankey did not ask to recover anything,—only that the cloud on his title should be removed. He made the proper-offer to do equity, and it would seem that he was entitled to this relief, in equity, beyond question, on payment of the taxes paid by the holder of the certificates, with six per cent interest thereon. Barnett v. Cline, 60 Ill. 207; Phelps v. Harding, 87 id. 442; Farwell v. Harding, 96 id. 32; Moore v. Wayman, 107 id. 192; Smith v. Hutchinson, 108 id. 662; Peacock v. Carnes, 110 id. 99; Bell v. Johnson, 111 id. 374; Carnes v. Peacock, 114 id. 347; Gage v. Pirtle, 124 id. 502.
   Mr. Justice Magbudeb

delivered the opinion of the Court:

This is a bill to remove certain tax certificates as clouds upon the title to certain lots in Chicago. The tax sales were made in October, 1884. The bill was filed in July, 1886, several months before the expiration of the period of redemption. The only question in the case is, whether the bill will lie, and we think that this question must be answered in the affirmative. Hirst, the tax certificates of purchase issued by the County Clerk were void, because the clerk did not make and enter upon the record the certificate required by section 194 of the Revenue Act. (Starr & Cur. Stat. vol. 2, page 2093). That section provides, that, on the day advertised for sale, the county clerk, assisted by the collector, shall carefully examine the list, upon which judgment has been rendered, etc., and shall make a certificate to be entered on said record following the order of court, that such record is correct, and that judgment was rendered upon the property therein mentioned for the taxes, interest and costs due thereon. The section also provides, that the certificate, so to be made and entered by the clerk, shall be attested by him under seal of the court, and shall be the process on which all real property or any interest therein shall be sold for taxes, special assessments, interest and costs due thereon. Such certificate is required to be substantially in the form set out in the section.

Where the law expressly directs that process shall be in a specified form, and issued in a particular manner, such a provision is mandatory. (Sidwell v. Schumacher, 99 Ill. 426). This rule applies to that which stands in the place of process and performs its office. (Eagan v. Connelly, 107 Ill. 458). In this case, there was no attested certificate, and, therefore, no process, under which the officer making the sale was authorized to act. Hence the sale, and the certificates issued to the purchaser, were void. (Bell v. Johnson, 111 Ill. 374; Neff v. Smyth, 111 id. 100).

Second, the tax certificates, having been issued upon a void sale for taxes, will be removed by a court of equity as clouds upon the 'title. It is alleged in the bill and admitted by the demurrer, that all the lots in controversy, are vacant and unoccupied except two, and that complainants are in the possession of these two. The certificates, though worthless, tend to cloud the title, as they are calculated to depreciate the value of the lots by giving rise to the fear of litigation and annoyance. (Gage v. Rohrbach, 56 Ill. 262; Gage v. Chapman, 56 id. 311; Phelps v. Harding, 87 id. 442).

Third, the bill offers to “pay whatever moneys, taxes and interest equity and the court may require.” The amount, which the complainants should be required to pay, in order to entitle themselves to a decree removing the certificates as clouds, is the amount paid at the tax sale, together with the subsequent taxes paid, and interest at the rate of six per cent per annum from the dates of the respective judgments. This is the uniform rule, laid down by this court in a long line of decisions. (Gage v. Pirtle, 124 Ill. 502.)

The judgment of the Appellate Court is affirmed.

Judgment affirmed.