author: Mr. Justice Magruder

text:
    Isham Harrison et al. v. Polar Star Lodge No. 652.

      Filed at Mt. Vernon January 25, 1886.

    1. Statute of Frauds—parol agreement to convey lot—performance to take a case out of the statute. The owner of lots in a town laid out by him, verbally agreed with a lodge to convey to it one of the lots in consideration it would remove a building owned by it, and_ put the same on such lot, which was done at a cost of $150, and the lodge made other valuable improvements on the premises: Held, that the verbal agreement was not void under the Statute of Frauds, there having been full performance on the part of the purchaser.

      2. Specific performance—whether enforced—generally. A suit for the specific performance of a contract to convey land is addressed to the sound legal discretion of the court, and the court will be governed to a great extent by the facts of each case. Equity will withhold its aid if there is anything that makes it unconscionable, from change of circumstances, lapse of time, or otherwise, that the party should have an execution of his agreement.
    3. Same—in case of a new contract changing the rights of the parties. A masonic lodge, being entitled to a deed for a lot verbally given it in consideration of its putting a building thereon, procured the holder of the legal title, the vendor, to make an advance of $459 to satisfy a debt it owed, and agreed, if he would pay the debt, to give him possession of the lot and all the buildings thereon, except the lodge room in the second story, and retain the title as security for the money so advanced, reserving a right to redeem by paying him the sum advanced, by a day named; and it was agreed that if payment was not made by that day, then the lot and buildings should be the property of the original vendor; Held, that by this agreement the equities of the parties were changed, and the contract to convey rescinded, and it would not be specifically enforced.
    4. Bescission of contract—by novation. Where the parties to a contract come to fresh agreement of such a kind that both can not stand together, the effect of the second agreement is to rescind the first. When an agreement is thus rescinded by novation, it loses its individuality, and is merged in the new contract. Any circumstance or course of conduct from which it can be clearly deduced, an agreement to put an end to the original contract will amount to a rescission, and the rescission or novation may be proved by parol.
    Appeal from the Circuit Court of Franklin county; the Hon. D. M. Browning, Judge, presiding.
    Mr, F. M. Youngblood, for the appellants :
    The answer shows a rescission of the contract rightfully made, and a bar to the specific performance sought. Fry on Specific Per. 400, 405.
    Applications for specific performance are addressed to the sound legal discretion of the court, and the court will be governed to a great extent by the facts and merits of each case. Fish v. Leser, 69 Ill. 394; McCabe v. Crosier, id. 501.
    It will, not be decreed unless the contract has been entered into with perfect fairness and without misapprehension, or where it will be inequitable or unjust to do so. Proudfoot v. Wightman, 78 Ill. 553.
    Now, T insist that it would be inequitable and unjust to compel appellants to convey the lot in question to appellee, unless it complies with its subsequent contract. A party can not have the specific performance of a contract unless he shows clearly his right to the relief he seeks. Brink v. Steadman, 70 Ill. 241.
    Specific performance will not be enforced if there is anything that makes it unconscionable, from change of circumstances, lapse of time, or otherwise, to enforce it. Kimball v. Took, 70 Ill. 553. And see Mitchell v. King, 77 id. 462. See, also, Bowman v. Cunningham, 78 Ill. 48.
    Parties who voluntarily abandon or change a contract, can' not thereafter have it specifically performed. (Morrill v. Colehour, 82 Ill. 618.) Or if it appear that the agreement has been abandoned, a specific performance will be denied. Hale v. Bryant, 109 Ill. 34; Worden v. Crist, 106 id. 326.
    Mr. Thomas J. Layman, for the appellee:
    Equity looks' upon things agreed to be done as done, and therefore a vendee is treated as a trustee for the purchaser of the estate sold. Green v. Smith, 1 Atk. 572; Craig v. Leslie, 3 Wheat. 578.
    The vendee is, in contemplation of equity, actually seized of the estate, and is therefore subject to any loss which may happen to it between the agreement and conveyance, and will enjoy any benefit which may accrue in the same interval. As a consequence, he may sell or charge the estate before conveyance is executed. Seton v. Slade, 7 Ves. Jr. 205; Winged v. Lofebury, 2 Eq. Ca. Abr. 32; Baden v. Pembroke, 2 Vern. 213.
    A legal mortgage of lands is a conveyance of lands by the debtor to the creditor as a pledge and security for repayment, etc. 2 Brown’s Law Dic. 189; 1 Hilliard on Mortgages, 1.

      It is a rule of equity that a party is bound to convey the title which he sells. Cooper v. Tyler, 46 Ill. 465.
    But agaiii, if Harrison had any lien it was not due until the 25th of December, 1882, and he deeded the lot to Brown in August, 1SS2, before his debt was due, and it was not necessary for appellee to tender payment after he made the deed to Brown, as Harrison then had no power to make a deed. And this inability to perform is a good excuse on the part of the purchaser for not tendering the last payment. Runkle v. Johnson, 30 Ill. 332.
    Wherever one obtains or withholds land in fraud of another, equity will decree a trust. Fraud should be suppressed, and not encouraged. Jenkins v. Eldridge, 3 Story, 181; Morey v. Hernick, 6 Harr. 125; Hill on Trustees, 91, 144.
    Constructive trusts are independent of agreement, and may be .established by parol evidence. Church v. Sterling, 16 Conn. 388.
   Mr. Justice Magruder

delivered the opinion of the Court:

This was a bill filed by appellee, in the circuit court of Franklin county, for the specific performance of a contract. The bill alleges that appellee owned a piece of land in that county, and in 1872 erected a two-story building thereon at a cost of about $1300, using the upper story for a lodge room and renting the lower story for a retail store; that in 1879 a railroad company built its road through the county, and located a depot about three-quarters of a mile from the building, the station at that point being called Mulkeytown; that the land at and around the station, and upon which the depot was located, wras owned by appellant Harrison, who made a town plat or subdivision into blocks and lots, and had it regularly acknowledged and recorded; that Harrison, besides owning a large number of the lots, owned also a farm that adjoined the town plat, and on which he lived, and in the early part of 1880, being a member of. appellee, agreed to convey to appellee lot 2, in block D, in Mulkeytown, if appellee would remove its building from where it stood, to and upon said lot 2; that accordingly the lodge did remove its building to and upon lot 2, in July, 1880, and by reason thereof, paid out $150 for repairs, and after the removal built two new rooms at a cost of $140, and w'ent into possession of the lot and building at once, and remained in possession until August 3, 1882, and is still in possession of the upper room; that before the removal, the lot was not worth over $35, and if it had remained vacant, would not at any time have been worth over $45; that there were few buildings in the town then, but that building and business have increased since then, and that lot 2, with the building thereon, is now worth $1000; that Harrison has refused to make a deed of the lot to the lodge, as agreed, and that he and his wife made a conveyance of the lot to Elias J. Brown on August 3, 1882, but that Brown was a member of the lodge, and had full notice of Harrison’s agreement with it, and of the removal in pursuance thereof, and of all of the rights of the lodge thereunder; that upon receiving his deed, Brown went into possession of the lot and all of the building except the upper room occupied by appellee, and threatens to put appellee out of that unless he is paid rent; that the use of the lot and building, except such upper room, has been worth $15 per month since August 3, 1882, and that since that date appellant has had such use. The bill, which makes Harrison and his wife, and Brown, defendants thereto, waives answer under oath, and prays that Brown be enjoined from selling or incumbering the lot, or interfering with complainant’s possession of the lodge room, and that defendants'be required to make a deed of the lot to complainant, and to account for the use of the premises, etc.

The first answer filed by appellants was excepted to, and the exceptions were sustained. Thereupon a further and amended answer was filed, to which, also, exceptions were taken and sustained. The decree of the court below recites that defendants “elect to stand by their joint and several answers and amended answer.” We do not understand that the exceptions question the fullness of the amended answer, but simply deny that certain new and additional matters set up therein constitute a legal defence to the case made by the bill. No replication was filed to the answer, and no proofs were taken or heard in the cause. The amended answer admitted the material facts alleged in the bill, and the court below sustained the exceptions to the new matters set up by the defendants, and rendered a decree in accordance with the prayer of the bill. We think that the court erred in sustaining the exceptions, and that the defence presented by the answer is a good one. -

The decree rendered by the court below would have been correct if the answer had stopped with an admission of the allegations contained in the bill, for although Harrison’s agreement for the sale of the lot to the lodge was a verbal one, yet it was not void under the Statute of Frauds, for the reason that the lodge took possession of the lot and made valuable improvements thereon, and paid the purchase price by the removal of the building to the place agreed upon. Evidently the consideration to be received by Harrison was the increased value which w'ould accrue to the balance of his property by reason of appellee’s location on lot 2. However, respondents below did not deny the agreement charged against them, nor did they deny that they would have been liable to carry out the agreement had it not been for the new arrangement which they allege to have been made. In their answer they state as reasons why the lot was not conveyed to appellee, that when the building was removed to lot 2, the lodge owed a debt of $459.15 to one Means; that on February 4, 1882, the lodge agreed with Harrison, by written resolution adopted at one of its meetings and spread upon its minutes, that if he would pay the debt to Means he should have immediate possession of the lot and all of the building except the lodge room in the second story, and should use the rents to pay himself interest on his advances, and might arrange with appellee’s tenants for certain ware-rooms built by them on the premises, and that appellee should have the" right to redeem said building and lot by paying Harrison the amount he should so advance, by December 25,1882; but if such payment should not be made by that day, then the lot and building should be the property of Harrison absolutely, and appellee should “part with all its interest in said lot and building; ” that appellant Harrison did pay the debt to Means in a few days, and thereupon took possession as agreed; that he sold and conveyed the property to Brown in August, 1882, but with the understanding that Brown was to deed it to appellee in case appellee should pay Harrison by December 25, 1882, the money advanced by him; that the payment to Means and the taking of possession by Harrison were reported to appellee in March, 1882, and approved by it on its records; that Harrison bought from the tenants their ware-rooms, as trade fixtures, and paid for them $150; that the conveyance to Brown was made with the knowledge and consent of appellee ; that appellee wholly failed to. pay Harrison the money within the time limited, and has never offered to pay it to him since, and has never requested a deed of either him or Brown; that Brown has been in possession of the lot and lodge room since August, 1882; that since December 25,1882, appellee has paid Brown rent for the lodge room, and thereby recognized him as its landlord; that Brown has made improvements on the lot costing $300, with appellee’s knowledge and consent; that Harrison never refused to convey said lot before February 4, 1882, and that he and Brown have been willing to convey it at any time since, upon the payment to Harrison of the money advanced by him, and that they are yet willing to convey it to appellee if it will pay the $459.15, and the cost of the trade fixtures and of the improvements.

Surely the facts thus recited would, if proven, constitute a good defence, and it was wrong to deprive appellants of the opportunity of proving them. If they are true, appellants should not be decreed to convey the premises to appellee. Courts of equity will not always enforce the specific performance of a contract-. Such applications are addressed to the sound legal discretion of the court, and the court must be governed, to a great extent, by the facts of each case as it is presented. (Fish v. Leser, 69 Ill. 394.) Equity will withhold its aid if there is anything that makes it unconscionable, from change of circumstances, lapse of time, or otherwise, that the party should have an execution of his agreement. (Kimball v. Tooke, 70 Ill. 553.) . According to the new matters set up in the answer, Harrison never parted with the legal title to the lot. After the removal of the building he held it in trust for appellee. He could be called upon to make a deed, provided no such change of circumstan'ces occurred as would make it inequitable for him to do so. But while he was thus holding the legal title, appellee, the equitable owner thereof,' instead of demanding a conveyance from him, requested of him an advance of money, and authorized him to continue to hold the title as a security for such advance. The nature of his trust changed. A new equity intervened. Before the payment to Means he held the title in trust, to be deeded to the equitable owner upon demand made; after the payment he held it in trust to secure a debt from the equitable owner to himself. So long as that debt remained unpaid, it was not right to require him to make a deed to the lodge. If Harrison had deeded the property to the lodge prior to February 4, 1882, and had made a loan to the lodge on that day, and had taken back from it to himself a deed which, 'though absolute on its face, was understood between them to be merely a mortgage to secure the payment of a loan, he could not be called upon for a re-transfer of the title until his loan was paid. The case is not different because, being already vested with the title, he is allowed to keep it as a security for the loan.

A new contract was made between appellee and Harrison, which rescinded the old contract and ivas a bar to its performance. Where the parties to a contract come to a fresh agreement of such a kind that the two can not stand together, the effect of the second agreement is to rescind the first. This is one form of novatio in the Roman law. When an agreement is thus rescinded by novation, the contract in existence prior to the novation loses its individuality, and becomes merged in the new contract. (Fry on Specific Performance, sec. 998, et seq.) Any circumstances or course of conduct from whence can be clearly deduced an agreement to put an end to the original contract, will amount to a rescission of it. (Idem. sec. 1003.) And the rescission or novation may be by parol. (Idem. secs. 1000 and 1017.) Appellee passed a resolution, by the terms of which it agreed to refund the $459.15 to Harrison by December 25, 1882, and in default of its so doing, that Harrison might become the absolute owner of the house and lot then held by him. This resolution was reduced to writing. Appellee has never repaid the money, and it would be unjust to give it both the money and the property.

Brown does not claim to be an innocent purchaser without notice. He admits that he took his deed with notice of appellee’s rights, and he and Harrison both express their willingness to convey the property to the lodge upon its payment to them of the advances made by them for debts, outlays and improvements. The averments in the answer are to the effect that the property, independent of .the improvements thereon made and paid for by appellants, was not worth much more than the amount of Harrison’s advance.

In Worden v. Crist, 106 Ill. 326, Crist sold a piece of land to Worden, and gave a bond for a deed. The purchase money was all paid up, and the legal title was in the vendor, or his son for him. Nothing remained to be done except a conveyance of the title to the vendee. Before this was done, however, Worden borrowed $1000 of a bank, and induced Crist to sign a note as surety for the loan, and agreed that Crist should hold the title, to indemnify himself against his liability as such surety. This court there held that the agreement was not void under the Statute of Frauds, as not being in writing, and that if Worden, who did not pay the note, but suffered it to be proved up against Crist’s estate, “had filed his bill for specific performance, and the agreement had been set up and proved, ” it would have been inequitable “to reject the defence and decree the relief. ” The principles announced in Worden v. Crist are applicable to the case at bar, and support the position that the exceptions to the amended answer should not have been sustained.

The decree of the court below is reversed, and the cause remanded for further proceedings in accordance .with this opinion.

Decree reversed.


source: Caselaw Access Project

author: Mr. Justice Tunnicliff

license: Public Domain

text:
    Mary L. M. Ditch et al. v. John S. Sennott et al.

      Filed at Mt. Vernon January 25, 1886.

    1. Assignment op ebbobs—upon the record. The requirement that upon appeal or error in this court there must be an assignment of errors “written upon or attached to the record,” is not a mere matter of form, to be considered waived if n'ot objected to, but one of substance. The assignment of errors performs the same office in this court that a declaration does in a court of original jurisdiction, and is equally essential in the forming of an issue upon which the court can properly give judgment.

      ‘2. In this case, which was an appeal, at the first term after the appeal was taken the appellee moved to dismiss the appeal upon the ground of a supposed defect in the appeal bond. That motion was overruled, and, no further motion being made, the cause was submitted for the consideration of the court upon the briefs and arguments of the respective counsel. On the case coming up for consideration, after the expiration of the term, it was found that the appellee, in his brief, had objected that there was no assignment of errors upon the record. In this way the omission was, for the first time, called to the attention of the court. On examination, the record disclosed the fact, .though the appellant, in his abstract, did set forth an assignment of errors. But the court dismissed the appeal because there was no assignment of errors “ written upon or attached to the record. ”
    3. It was the duty of the counsel for appellees, when he discovered that errors had not been assigned upon the record, to have moved the court to dismiss the appeal for the want thereof, or taken a rule upon appellants to assign error upon the record. It was likewise the duty of appellants’ counsel to have made a proper assignment of error in the first instance, and having omitted to do so, when his attention was called to it, he should have applied to the court at the earliest opportunity for leave to assign errors instanter. But at the stage of the cause when the matter came to the attention of the court it was too late to supply the omission.
    Appeal from the Circuit Court of Monroe county; the Hon. Amos Watts, Judge, presiding.
    Mr. Spencer Tompkins, and Mr. Thomas Quick, for the appellants.
    Messrs. Winkelman & Talbott, for the appellees.
   Mr. Justice Tunnicliff

delivered the opinion of the Court:

Counsel for appellees, at the term to which this case was appealed, moved the court to dismiss the appeal because the appeal bond was entered into and filed without security, contrary, as it was claimed, to the requirement of the decree in allowing the appeal. An inspection of the record showed that the bond had been approved by the clerk of the court, and as the court had authorized him to approve the security, the motion to dismiss was overruled. No other motion was made, and the case- was submitted on the briefs and arguments of the respective counsel upon each side.

On the ease being reached, in conference, for decision, long after the term had expired, we find it objected by counsel for appellees that no errors have been assigned upon the record, our attention being thus called to it for the first time. An examination discloses that such is the case, though counsel for appellants, in their abstract, set forth an assignment of errors.

It was the duty of the counsel for appellees, when he discovered that errors had not been assigned upon the record, to have moved the court to dismiss the appeal for the want thereof, or taken a rule upon appellants to assign error upon the record. It was likewise the duty of appellants’ counsel to have made the assignment of errors in the first instance, but having, inadvertently, as we suppose, omitted to do so, he should, when his attention was called to it, as it must have been by the brief of counsel for appellees, have applied to the court at the earliest opportunity for leave to assign errors instanter.

Rule 15 of the rules of practice of the court (see 93 Ill. 5,) requires that “the appellant or plaintiff in error shall, in all cases, assign errors at the time of filing his record in this court, and on failing to do so the case may be dismissed. * * * «The assignment of errors and cross-errors must be written upon or attached to the record. ” This rule, so far as this question is concerned, has been in force since the first organization of the court. As to the necessity of this rule being complied with, it was said in Williston v. Fisher, 28 Ill. 43, in dismissing an appeal because there was no assignment of errors upon or attached to the record: “An assignment of errors in this court performs the same office as a declaration in a court of original jurisdiction. It would be just as regular and proper for the circuit court to render a judgment in a cause where there is no declaration, as for this court to affirm or reverse a judgment where there is no assignment of errors. We should reverse such a judgment rendered in the circuit court, and we should commit the same error to render a judgment here without the necessary pleading. ” In Buckley v. Eaton, Jr. 60 Ill. 252, where there had been no assignment of errors upon the record, and the rule in reference to abstracts had been disregarded, the court declined to consider the case, and affirmed the judgment below. In Gibbs et al. v. Blackwell et al. 40 Ill. 51, the errors had been assigned upon the abstract and brief instead of the record, and a motion to dismiss was overruled, on condition that the rule requiring an assignment upon the record be at once complied with. The court say: “Where a writ of error is made to operate as a supersedeas, inadvertently, without an assignment' of errors on the record, the court, upon its attention being called to the omission, will require them to be assigned at once, and in default thereof will dismiss the cause. ” It has been repeatedly held that no errors would be considered by the court but such as are assigned upon the record. Gilbert et al. v. Maggord, 1 Scam. 471; Martin v. Russell et al. 3 id. 343; Protection Life Ins. Co. v. Foote, 79 Ill. 361; Hyslop v. Finch, 99 id. 171; Pittsburg, Ft. Wayne and Chicago Railroad Co. v. Reich, 101 id. 157.

It would seem to follow that the failure to assign errors upon the record is not a mere form that will be considered waived if not objected to, but one of substance, and should the court, for instance, inadvertently reverse a case for an error not assigned, it would feel compelled, on motion, to set aside its judgment.

It is to be regretted that a mistake of this kind should cause so much trouble and delay, but it is too late to correct the error now. As the record is now presented there is no issue for this court to try. Nothing can be done but to dismiss the appeal without prejudice, each party paying his own costs in this court, which is accordingly done.

.Appeal dismissed.'


author: Per Curiam:

text:
    Virgil Beale v. Lorena O. Beale.

      Filed at Mt. Vernon January 25, 1886.

    i. Chancery—reference to master when necessary. Where a bill is filed to settle the affairs of a partnership of long standing, and the accounts consist of numerous items somewhat complicated, it is the duty of the court to refer the case to a master to state the account.
    2. ■ Same—of a second reference, after exceptions to report. In such a case, where exceptions to the master’s report are sustained, the court should settle, by decree, the matters involved, and again refer the cause to the master to state the account on the basis fixed by the court, so that it may appear what items of account are approved and what rejected by the court.
    Appeal from the Appellate Court for the Fourth District;— heard in that court on writ of error to the Circuit Court of Union county; the Hon. Oliver A. Harree, Judge, presiding.
    Mr. John M. Lansden, and Mr. M. C. Crawford, for the appellant.
    Mr. Andrew D. Duff, for the appellee.
   Per Curiam:

When this cause was first submitted we thought that the decree might be sustained, although the court, upon sustaining exceptions to the master’s report, failed to again refer the cause to the master to state the account between the parties, but upon further consideration we have arrived at a different conclusion. The bill was brought to settle a co-partnership of ten years’ standing. Quite a large business had been transacted, and the accounts consisted of various items, and were somewhat complicated. Under such circumstances it was the duty of the court to refer the cause to a master to state the account. When exceptions are filed to the report of the master in stating the account, and sustained, as was the case here, then the court should settle by decree the matters involved, and again refer the cause to the master to state the account as determined by the court. When this course is pursued, it can always be determined what items of the account were approved and what were rejected. Here it is claimed by appellant that five items of account in his favor, aggregating $3533.62, were rejected by the court which should have been allowed. But as the decree is not based upon a master’s report, -which would show what items of account were allowed and what were rejected, it is impossible to determine whether these items were considered or whether they wrere not. This is unjust to appellant. The record ought to show whether these items, 'in making up the decree, were allowed or rejected. If the record showed that they were allowed, that would end the controversy. If, on the other hand, they were rejected, the action of the court on the master’s report would show that fact, and it would then only be necessary to examine the evidence to determine as to the correctness of the ruling in rejecting such items. The practice in chancery cases is well settled, that where accounts involve large sums of money, and the testimony is conflicting, it is the duty of the court to refer the cause to a master to state the account. French v. Gibbs, 105 Ill. 523.

The decision of the Appellate Court and the decree of the circuit court will be reversed, and the cause remanded, with directions to the circuit court to refer the cause to the master to state the account.

Decree reversed.


author: Mr. Chief Justice Mulkey

text:
    Martha E. Johnson v. William D. Gibson et al.

      Filed at Springfield March 27, 1886.

    1. Jurisdiction in chancery—territorially—and herein, of the distinction where it is sought to act directly upon property, or only upon the person, in respect to property. Where a court of equity attempts to act directly upon property, whether real or personal, by its decree, it is, in the absence of statutory regulation, essential to the power of the court to act, that the property to be affected be within the territorial jurisdiction of the court.
    2. But where one claims to be the owner of land or other property situate in a foreign jurisdiction, which in equity and good conscience belongs to another, the latter may sue him in equity in any jurisdiction in which he may be found, and compel him to convey the property. In such case the decree operates on the person of the defendant, and does not directly affect the property itself.
    3. Same—the statute construed. Section 3 of the Chancery Code, requiring suits affecting real estate to be brought in the county where it lies, is only declaratory of a general principle which controls courts in administering equitable relief. When the relief sought does not require the court to deal directly with the estate itself, then the case is not within the meaning of the statute.
    4. Same—as to creditor’s bill—in what jurisdiction. A creditor may maintain 8, bill to set aside a fraudulent conveyance of his debtor in any jurisdiction where the debtor and fraudulent vendee may be found. In such case the court does not act upon the land itself, but simply declares the conveyance void, and removes the same as an obstruction to the creditor’s legal remedy.
    5. Same—former decision—jurisdiction of creditor’s bill. The case of Richards v. Hyde, 21 111. 641, is not to be regarded as holding that a decree rendered in a creditor’s bill filed to set aside a fraudulent conveyance in a different county from that in which the land lies, is void, and if it were to be so regarded, it could not be reconciled with prior and subsequent cases.
    6. Publication—sufficiency of affidavit made out of State. An affidavit of inability to find certain defendants in a chancery suit brought in this State, or ascertain their place of residence upon diligent inquiry, will not be held bad or defective merely because sworn to by a party in another State instead of in this State.
    7. Conclusiveness of findings in decree—collaterally considered. A decree upon a creditor’s bill setting aside certain conveyances as fraudulent, and finding certain facts, is conclusive upon the parties thereto, and they will be estopped in a collateral proceeding from denying the same.
    8. Feaudulent conveyance—as to property passing through the hands of an innocent purchaser, hack to the original fraudulent grantee. While an innocent purchaser, without notice of the fraud, obtaining property from a fraudulent grantee, may be protected, and take the same purged of the fraud, yet if he reconveys the same to the fraudulent grantee, the properly may be reached in his hands, the same as though he had never parted with it.
    Appeal from the Circuit Court of Tazewell county; the Hon. N. M. Laws, Judge, presiding.
    Messrs. Runyan & Prettyman, for the appellant:
    Can a resident of the county be brought into the circuit court of such county by publication, made on the affidavit of complainant, that on due inquiry defendant can not be found nor his place of residence ascertained, w'hen defendant is not concealed and does not evade service of process, and thus gives the court jurisdiction of defendant’s person, to render a decree against him to cancel a deed or aid an execution in a foreign county? Rev. Stat. chap. 22, secs. 3, 12; Richards v. Hyde, 21 Ill. 641; Fulton v. Riggs, 23 id. 000; Campbell v. McConn, 41 id. 49; Sinkle v. Lowe, 74 id. 275; Gondy v. Hall, 30 id. 116; Swarengen v. Gulick, 67 id. 208; Revised Stat. chap. 30, sec. 36; Morris v. Hoyle, 37 Ill. 150.
    If the court could not or did not acquire jurisdiction of the defendants, can a defendant or a stranger set up the want of jurisdiction of the court in an answer, in, or give evidence to show that fact, by the record or otherwise, in a collateral proceeding? That it may be done lawfully, see Hayward v. Collins, 60 Ill. 329; Freedendel v. Boldwin, 103 id. 329; Adams v. Railroad Co. 10 N. Y. 332; Huls v. Brinton, 47 Ill. 399; Whitney v. Porter, 23 id. 448; Holbrook v. Murray, 5 Wend. 163; Pomroy v. Bills, 31 Mo. 419; Hall v. Williams, 6 Pick. 282; Boyland v. Boyland, 18 Ill. 552.
    Did the defendants in the case purchase lis pendens, and become estopped in this suit to set up title to the premises ?
      Grant v. Bennett, 96 Ill. 521; Schank v. McHenry, 88 id. 358; Grinnell v. Cockell, 77 id. 84; Kennett v. Simon, 65 id. 344; C. D. Co. v. Foster, 48 id. 507; Peck v. Arhart, 95 id. 113; Lucas v. Lucas, 103 id. 124.
    Did the court err in excluding from the answer and from the evidence all facts set up in proof by the record, and by parol, of the absence of jurisdiction, to render the decree relied on by the complainants for title? Insurance Co. v. Myers, 93 Ill. 271; Thrift v. Fritz, 101 id. 466; Walton v. Walton, 70 id. 142; Pendleton v. Weed, 17 N. Y. 75.
    Mr. W. Gabnett, Jr., and Mr. William Don Matjs, for the appellees:
    A creditor’s bill to remove fraudulent conveyances out of the way of the collection of judgments, is not one affecting land, within the meaning of the statute requiring suits affecting real estate to be brought in the county where it is situated. Akin v. Lloyd, 28 Ill. 331; Smith v. Bryan, 34 Ga. 53; Bivins v. Bivins, 37 Ga. 346; McKinney v. Farmers’ Nat. Bank, 104 Ill. 180.
    But if a local action is brought in the wrong county, and the court has a general jurisdiction of that class of cases, the defendant must plead to the jurisdiction, or otherwise take advantage of the irregularity, before final judgment on the merits. Ryan v. Jackson, 11 Tex. 391; Morris v. Runnells, 12 id. 177; Stark v. Burr, 56 id. 130.
    The record finding the court had jurisdiction is conclusive, and can not be contradicted by other evidence than the record itself. Barnett v. Wolff, 70 Ill. 81; Searle v. Galbraith, 73 id. 269; Carpenter v. City of Oakland, 30 Cal. 439; Harris v. Lester, 80 Ill. 314; Sloan v. Graham, 85 id. 26; Hunter v. Stoneburner, 92 id. 75; Freeman on Judgments, (3d ed.) sec. 130, et. seq.

    The affidavit of non-residence was sufficient. Hartung v. Hartung, 8 Bradw. 156.

      Insufficiency of notice of publication as to one of several defendants, can be urged by him alone. Fergus v. Tinkham, 38 Ill. 407.
   Mr. Chief Justice Mulkey

delivered the opinion of the Court:

On the 1st of July, 1882, Martha E. Rogers and William D. Gibson, the appellees, filed the present bill in the Tazewell circuit court, against Elizabeth A. Semmes, L. L. Conrad, Martha E. Johnson, and others, praying for the partition of a certain quarter section of land and two town lots, particularly described in the bill. A decree was rendered upon the pleadings and proofs, in conformity with the rights of the parties as set forth in the bill. From that decree Martha E. Johnson alone appeals.

All parties to the suit claiming an interest in the property in controversy, derive title through the appellant’s husband, Charles R. Johnson, who, it is conceded, owned the whole of it on the 22d of April, 1875. On that day, being in failing circumstances, he conveyed the two lots to one J. C. Frederick, who, in a week or two thereafter, reconveyed to Johnson’s wife. On the 15th of February, 1877, Johnson conveyed the quarter section of land to Edward A. Trask, who, in like manner, shortly thereafter conveyed the same to appellant. Prior to the execution of these deeds Johnson had become indebted to said Elizabeth A. Semmes and Martha E. Rogers, respectively, in the sum of $7397.54, which occurred in the following manner: Mrs. Semmes and Mrs. Rogers, together with Charles R. Johnson, who was their brother, in 1854 acquired, by devise, a considerable quantity of valuable land in the State of Iowa. In 1867, Johnson being then a resident of Pekin, this State, and his sisters of the State of Maryland, they, at his request, executed to him a power of attorney, authorizing him to sell and convert into money these Iowa lands, which he undertook to do, and to account to them for their shares of the proceeds. Prior to 1877 the lands, under this arrangement, had all been converted by Johnson into money. The sales made by him amounted in the aggregate to $18,123. Nevertheless, by means of false representations he had led his sisters to suppose that they amounted to only $4000, two-tliirds of which amount he had paid over to them. In 1879, upon discovering his treachery and faithlessness, they filed a bill in the circuit court of Cook county, the place of his then residence, for an account. Although personally served he made no defence to this suit, which, on the 13th of February, 1880, resulted in a personal decree against him in favor of each of the sisters for the above mentioned sum of $7397.54, and several executions were issued thereon and levied upon the lands now in controversy. It will be borne in mind that by means of the several conveyances heretofore mentioned, the appellant had succeeded to her husband’s title to the land in question. The legal title remained in her till September 30, 1879, when she conveyed to S. G. Paschael the two lots, and on the lltli of October following she conveyed the quarter section of land to Z. D. Geddes. Neither of these deeds was recorded until after Mrs. Semmes and Mrs. Rogers had commenced their suit against Charles R. Johnson, as heretofore stated. Z. D. Geddes, on the 16th of March, 1880, conveyed said quarter section of land to M. P. Harlow. S. G. Paschael, on the 13th of March, 1880, conveyed the two lots to E. E. Paschael, who, on the 19th of June, 1881, conveyed the same to appellant. On the "26th of the same month M. P. Harlow also conveyed his interest in the property to her.

Thus it will be seen, on the day last named, to-wit, the 26th of June, 1881, appellant became again the holder of the legal title to the entire property. Keeping this fact in view, it is proper now to note the additional steps taken by Mrs. Semmes and Mrs. Rogers to make their decree against Charles R. Johnson available. After causing their executions to be levied on the property in controversy, as heretofore stated, Mrs. Rogers filed a bill in the circuit court of Cook county against Charles R. Johnson, the appellant, the two Paschaels, Geddes, Harlow and Mrs. Rogers, charging that all the deeds above mentioned were made without consideration, and for the purpose of hindering and delaying the creditors of the said Charles; that the indebtedness from said Charles to complainant and the said Semmes, existed before the execution of any of said conveyances; that the said Charles was wholly insolvent, and had been so since 1874; prayer that all of said deeds be set aside, and that the lands in question be subjected to the payment of the debt of complainant. Of the defendants named there was personal service on Johnson and his wife, and service by publication as to the Paschaels, Harlow and Geddes. Mrs. Semmes answered, admitting the allegations in the bill, and also filed a cross-bill setting up the same facts contained in the original bill, and praying the same relief, fío defence having been interposed, a decree pro confesso was entered, in conformity with the prayer of the bill and cross-bill. The deeds above mentioned having been thus set aside as fraudulent and void, the sheriff, on the 29th day. of January, 1881, sold the property in controversy, under a venditioni exponas, to the plaintiffs in the writ, for the sum of $12,000, who subsequently received a sheriff’s deed for the same. In the present suit Mrs. Semmes and Mrs. Rogers derive title to the premises through the sale under the executions, and the sheriff’s deed to them, as heretofore stated. Gibson and Conrad have severally purchased ' from them partial interests in the property, and consequently claim title through the same source. As between these four parties there is no controversy, the partition decree being satisfactory to them all.

The principal objection urged to the decree in this case is based upon the claim that the circuit court of Cook county had no power or jurisdiction to render the decree in the case of Martha E. Rogers against Charles R. Johnson and others, setting aside and declaring void the deeds to and from Mrs. Johnson, Geddes, the Paschaels and Harlow, heretofore mentioned.

It is first urged that the suit was one affecting real estate, and should therefore have been brought in Tazewell county, as required by the third section of the Chancery act; that this not having been done, the decree therein rendered is void, and consequently may be attacked collaterally, as is here sought to be done. In support of this position, Richards v. Hyde, 21 Ill. 611, is cited. That case, in most respects, is substantially like the present, the material difference being the way in which the question of jurisdiction is raised. Here it is raised for the first time in a collateral proceeding. There a motion was made in the circuit court to dismiss the bill for want of jurisdiction, which was allowed, and this court, on error, affirmed the order of dismissal. The opinion in that case makes no reference to the statute, nor does it state the precise ground upon which the order of dismissal was sustained. The propriety of maintaining a bill under the circumstances, is discussed as though it was a question of first impression. No authority is cited, nor is any general principle alluded to, as controlling the decision. If in affirming the order it was intended to hold that a decree rendered upon its merits in such a case would be absolutely void, as is claimed to be the case here, we certainly fail to find anything in the opinion declaratory of such intention. Moreover, if such is the effect of the decision, it can hardly be reconciled with the general doctrines and principles which control courts of equity in analogous cases, and which have frequently been recognized before and since that decision. That a decree of the kind suggested would not be void, we think there is but little, if any, room to doubt, either upon reason or authority. Courts of equity are concerned chiefly with property rights, and when exercising this jurisdiction, unaffected by statutory legislation, they act either directly upon the property involved in the litigation or upon the person having possession or control of it, depending upon the nature of the case or character of the relief sought. When the former course is to be pursued, it is essential to the power of the court to act that the property to be affected be within the territorial jurisdiction of the court. This is not only true with respect to real property, but it is equally true of personal property. A court of equity, for instance, has no more power to lay hold of a trust fund in another jurisdiction, and administer it through the instrumentality of a receiver or trustee, than it has to entertain a bill for the partition of land lying in a foreign jurisdiction, which, all concede, can not be done. Nor can a court of equity make any order or decree that will, by its own inherent force, divest one person and clothe another with the title to land in another county, except in cases expressly provided for by the statute. Yet, while this is so, it is equally well settled that where one is the owner of land or other property in a foreign jurisdiction, which in equity and good conscience he ought to convey to another, the latter may sue him in equity in any jurisdiction in which he may be found, and compel him to convey the property. The decree in such ease directing a conveyance of the property does not directly affect the title of the property, yet the enforcement of it does result in the complete change of the title. So if a failing debtor makes fraudulent conveyances of his real estate' for the purposes of hindering and delaying his creditors, the latter may maintain a bill in equity in any jurisdiction where the debtor and fraudulent vendee may be found, for the purpose of having them declared void as to the complaining creditor. In such cases the court does not act upon the land, or make any order in reference to it. It simply declares a certain transaction relating to the land fraudulent as between the complainant and the offending parties, and thus removes it as an obstruction to the creditor’s legal remedy.

The rule applicable to cases of this kind is well stated by Marshall, C. J., in Massie v. Watts, 6 Cranch, 148. He says : “When the defendant is liable, either in consequence of a contract, or as trustee, or as holder of a legal title acquired by a species of mala fides practiced on the plaintiff, the principles of equity give a court jurisdiction wherever the person may be found; and the circumstance that a question of title may be involved in the inquiry, and may even constitute the essential point on which the case depends, does not seem sufficient to arrest the jurisdiction. * * * In case of fraud, of trust, or of contract, the jurisdiction of a court of chancery is sustainable wherever the person be found, although lands not within the jurisdiction may be affected by the decree.” The concluding part of this citation is, of course, not to be understood as authorizing a court of equity in any case to render a decree directly affecting land lying in another jurisdiction. In all these cases the principle esquifas agit in personam, applies, and the decrees in them can only indirectly affect real property. The decree in such cases settles the rights of the parties before the court with respect to some contract, conveyance, trust or fraudulent conduct, and by attachment or other coercive means compels the offending party to comply with the requirements of the decree, or- simply declares the transaction complained of void, and thereby removes an obstruction to the enforcement of his legal remedies.

An exhaustive collection of the authorities on this subject, fully sustaining the view here taken, will be found in the notes to Penn v. Lord Baltimore, 2 Leading Cases in Eq. 1817, et seq. Moreover, the conclusion reached is in harmony with the decisions of this court upon other analogous questions, w'hereas to hold otherwise would lead to the opposite result. This is particularly true in respect to the rulings of this court as to when a freehold will or will not be involved. In this connection reference is made to the following cases: Rose v. Choteau, 11 Ill. 167; Hutchinson v. Howe, 100 id. 11; Conkey v. Knight, 104 id. 337; Sawyer v. Moyer, 105 id. 192 ; Furnace Co. v. Vinnedge, 106 id. 650.

It follows from what we have already said, that the third section of our Chancery act, requiring suits affecting real estate to be brought in the county where it lies, when properly construed is but declaratory of a general principle which controls courts in administering equitable relief.' Where the relief sought does not require the court to deal directly with the estate itself, then the ease does not, within the meaning of our statute, or of the general rule of law existing independently of the statute, affect real estate, and hence affords no objection to the jurisdiction of the court where the parties in interest are all before it, although the land to which the controversy relates is not within the jurisdiction of the court. In support of this view the case of Enos v. Hunter, 4 Gilm. 211, is directly in point.

It is urged, in the next place, that the service by publication, as to the Paschaels,' Geddes and Harlow, is insufficient, and that the court therefore failed to obtain jurisdiction as to them. The affidavit in the case states “that Z. Darius Geddes, Sampson G. Paschael, E. E. Pasehael and M. P. Harlow, four of the defendants in the above entitled cause, on due inquiry can not be found, so that process can be served upon them, and that upon diligent inquiry the place of residence of said four last named defendants can not be ascertained, nor can the place of residence of any of said four defendants be ascertained upon diligent inquiry. ” The affidavit seems to be in conformity with the requirements of the 12th section of the Chancery act. The chief objection urged against it is, that it was swrorn to outside of the State, and we are asked to say, as matter of law, that the investigation and inquiry contemplated by the statute in respect to the residence of the defendants, could not be made, for the purposes of a suit pending in Chicago, where it affirmatively appears, as it does here, that the affidavit was sworn to in Baltimore, instead of in Chicago. This we are not prepared to do.

Holding adversely to appellant, as we do, upon the two questions just considered, little or nothing remains to be said, as they constitute the entire frame-work of the defence.

But outside of the considerations presented, the merits of this case are clearly with the appellees. That the land in question while in Johnson’s hands was liable for the indebtedness for which it was sold by the sheriff, there is no question, and that the transfer of it by him to his wife was fraudulent and void, as against this claim, is equally plain. Moreover, she and her husband, who were served with process, and consequently were properly before the court, are estopped by the decree of 1SS0 from questioning either of these facts, or, indeed, any other facts found by it. That decree not only finds that the conveyance to her was fraudulent and void, but that the subsequent purchases of Geddes, the Paschaels, and Harlow, all of whom claim through her, were equally fraudulent with hers. This finding is conclusive on her, whether the service on them was good or not. So far as this record shows, they have all acquiesced in that decree, and she alone is complaining. When it is conceded, as it must be for the purposes of the present decision, that all these sales and transfers were fraudulent and void, what standing can appellant have in a court of equity ? But 'waiving the estoppel, and conceding that some or all of the parties acquiring title subsequent to her were innocent purchasers, as is claimed, how could that purge her confessedly fraudulent title ? While such innocent purchaser would have been protected, yet when the property was reconveyed to her, as it was before the final decree was entered in that suit, it became again subject in her hands, as it was before, to the payment of her husband’s debts. 2 Pomeroy’s Equity, sec. 754.

Waiving, then, the question of estoppel, and all like considerations, we have no hesitancy in saying that a careful analysis of all the testimony leaves but little, if any, room to doubt that the various conveyances oh the land in controversy, subsequent to and including those from Johnson himself, were but parts of a deliberate scheme to defraud his two sisters out of a just, honest, and highly meritorious claim".

The decree will be affirmed.

Decree affirmed.


author: Mr. Justice Scholfield Per Curiam :

text:
    The City of Cairo v. L. F. Campbell et al. Exrs.

      Filed at Mt. Vernon January 25, 1886

      Rehearing denied May Term, 1886.

    1. Municipal, corporation—payment of debts—powers and duty of a city council. A city council, under the general Incorporation law, is invested with the control of the finances and property of the city, and with power to appropriate money for the payment of its debts, and to levy and collect taxes for that purpose, and it is its duty to take the necessary steps to levy and collect the same for the payment of judgments against the city.
    2. Same—;judgment against a city—remedy by mandamus—of a demand—appropriation ordinance. A demand upon a city council for the payment of a judgment recovered against the city, if made at any time before the day fixed by law for the adoption of the ordinance for the levy of the municipal taxes, will be sufficient to justify a proceeding by mandamus to compel the levy of taxes with which to satisfy the judgment.
    3. The statute, however, directing the city council, within the first quarter of each fiscal year, to pass an appropriation ordinance, “in which such corporate authorities may appropriate such sum or sums of money as may be deemed necessary to defray all necessary expenses and liabilities,” etc., is mandatory. The words “may appropriate,” are to be read as “shall" or “must appropriate. ” And it is the duty of the council to make such appropriation to pay a judgment against the city without any demand to that effect.

      4. The city council is precluded from making any further apppropriation after the passage of the appropriation bill, so far as it belongs to the class which it is discretionary for that body to include in or omit from the annual appropriation bill; but a party whose judgment against the city has been omitted from such bill through perverseness or negligence, is not concluded thereby, but may compel the corporate authorities to levy and collect a tax for its payment.
    . 5. Conclusiveness OF Judgment against municipal corporation—on mandamus to compel its payment. Where the circuit court has jurisdiction of the subject matter and of the parties in a suit against a municipal corporation, its judgment against the corporation, until reversed or set aside, is absolutely conclusive in a proceeding by mandamus to compel the corporate authorities to levy and collect a tax to discharge the same, as to the right of the plaintiff therein to receive and the duty of the defendant to pay the amount of it.
    Appeal from the Appellate Court for the Fourth District; —heard in that court on appeal from the Circuit Court of Alexander county; the Hon. David J. Baker, Judge, presiding.
    Messrs. Green & Gilbert, for the appellant:

      Mandamus is now but an ordinary action at law, and the plaintiff must show a good cause of action when the suit was commenced. People v. Weber, 86 Ill. 285; People v. Glann, 70 id. 232.
    It is indispensable that there he an existing duty, a proper demand for its performance, and a refusal or wrongful neglect. Tapping on Mandamus, 322.
    As to when it lies, and when not, see Moses on Mandamus, 202, 206; People v. Klokke, 92 Ill. 134; Hall v. People, 57 id. 316.
    In eases where demand and refusal are held necessary, it is not sufficient that the demand be couched in merely general terms, but it should be express and distinct, and should clearly designate the precise thing which is required. So, too, the demand should be untrammeled by any conditions which make the refusal a qualified instead of an absolute one. High on Ex. Legal Rem. sec. 13.
    There must he a demand for the specific thing which ought to be done, untrammeled by any condition which makes the refusal qualified instead of absolute. Macoupin County v. People, 58 Ill. 192.

      There must have been a demand for the particular thing which ought to have been done,—unconditional, and not in the alternative, as that to pay a judgment or levy a tax. 2 Dillon on Mun. Corp. sec. 698, note 3; Moses on Mandamus, 202, 206-208.
    ■ The necessity for a demand being established, it was equally necessary that such demand should have been made in apt time, to-wit, before the passage of the annual appropriation bill, and certainly before the expiration of the “first quarter of the fiscal year. ”

      Mandamus will not be awarded to compel officers to do that which they are not authorized to do by law. Moses on Mandamus, 125; Supervisors v. United States, 18 Wall. 77; Reardon v. St. Louis County, 36 Mo. 560.
    If there was no money in the treasury out of which a warrant could be paid, it was not the duty of defendants to draw a warrant on the treasury. Coy v. City of Lyons, 17 Iowa, 1; Coffin v. City of Davenport, 26 id. 315; 36 id. 401; High on Ex. Legal Rem. sec. 353.
    Mr. John M. Lansden, for the appellees:
    ' The demand of payment of the judgment was sufficient. City of Cairo v. Everett, 12 Bradw. 75.
    ‘ There is no need that a judgment against a city shall go into the general appropriation bill, but it must go into the next general tax levy. The city was empowered to borrow money to pay the judgment.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This was a petition for mandamus, in the circuit court of Alexander county, by Henry J. Fisher, against the city of Cairo, to compel the levy and collection of a tax for the payment of two judgments recovered by'him in that court against the defendant,—one on the 1st day of July, 1878, for $390, and costs, and the other on the 20th day of January, 1882, for $720, and costs. The circuit court rendered judgment awarding a peremptory writ, as prayed, and that judgment, on appeal, was affirmed by the Appellate Court for the Fourth District. The record is brought to this court by appeal from this judgment of the Appellate Court. Fisher died pending the litigation, and his executors are now parties in his stead.

That the peremptory writ was rightfully awarded for the levy and collection of a tax for the payment of the first judgment, is settled by City of Cairo v. Everett, 107 Ill. 75, which is in all respects analogous, and that case settles, moreover, that the contents and form of the written demand served upon the council for the payment of the last judgment are sufficient, for, except as to the description of the judgment and the dates, they are identical.

The chief question is, the ordinance containing the annual appropriation bill having been passed by the council and approved by the mayor on the 27th of July, 1882, and this judgment not having been included in that ordinance, was it, for the purpose of this proceeding, sufficient to serve the demand on the council on the 8th of August, 1882? The contention of the attorneys for appellant is, that the demand should have been served before the ordinance containing the annual appropriation bill was passed and approved,—that without demand the council were not in default in not including the judgment in that ordinance. This, in our opinion, originates in a misapprehension in regard to the duties of the council in cases where judgment is obtained against the city, and there are no funds in its treasury from which the amount can- be paid. When this judgment was rendered, there was jurisdiction in the court of the parties and of the subject matter, and the judgment not having been reversed or set aside, is therefore absolutely conclusive in this proceeding as to the right of the plaintiff therein to receive, and the duty of the defendant therein to pay, the amount of it. (Supervisors v. United States, 4 Wall. 444; City of Olney v. Harvey et al. 50 Ill. 453.) The city council is invested with the control of the finances and property of the city, and with power to appropriate money for the payment of its debts, and to levy and collect taxes on real and personal property for that purpose. (Subdivisions first, second and third, sec. 1, art. 5, chap. 24, Rev. Stat. 1874.) And section 2, article 7, of the same chapter, directs that “the city council of cities and the board of trustees in villages, shall, within the first quarter of each fiscal year, pass an ordinance, to be termed the annual appropriation bill, in which such corporate authorities may appropriate such sum or sums of money as may be deemed necessary to defray all necessary expenses and liabilities of such corporation, and in such ordinance shall specify the objects and purposes for which such appropriations are made, and the amount appropriated for each object or purpose. No further appropriations shall be made at any other time within such fiscal year, unless, ” etc.

Inasmuch as the enforcement of the legal rights of the plaintiff in this judgpient depended upon the exercise of the duty thus imposed on the council, the words, “may appropriate,” should be read, “shall or must appropriate, ” etc. (Kane v. Footh, 70 Ill. 587; Gillinwater v. M. and A. R. R. Co. 13 id. 1.) It was, then, the duty of the council, without any demand, to include this judgment in the annual appropriation bill. The plaintiff had sued the city, obtained judgment against it, and that judgment was unreversed, unpaid, and in full force and effect, and he was not required to assume that the council would not perform its duty and include the amount in the annual appropriation bill. (Richards v. Zanesville, 5 Ohio St. 89.) No demand could have rendered more clear or added to the obligatory force of the duty resting on the council in that respect. But after the council had refused to include the judgment in the ordinance, he might acquiesce in that refusal, or he might insist that the council should perform its duty in that respect. He had an election, and to signify that he elected to have the council include the judgment in the annual appropriation bill, it was necessary for him to make the demand, and so it is said that the proper time to make the demand in such a case is after the breach of duty. Tapping on Mandamus, (T. & J. W. Johnson’s ed.) 333, *284.

It is provided by section 1, article 8, chapter 24, supra, as amended: “The city council or boards of trustees, as the case may be, shall annually, on or before the third (3d) Tuesday in September in each year, ascertain the total amount of appropriations for all corporate purposes legally made and to be collected "from the tax levy of that fiscal year; and by an ordinance specifying in detail the purposes for which such appropriations are made, and the sum or amount appropriated for each purpose, respectively, levy the amount so ascertained upon all the property subject to taxation within the city or village.” A certified copy of this is to be furnished to the county clerk, and he is required to extend the taxes on the proper books in conformity therewith. See 1 Starr & Curtiss’ Stat. 485, 486.

It .is thus clear beyond question that the demand was made in ample time for the correction of the annual appropriation bill before the day for adopting the ordinance levying the taxes. Undoubtedly the prohibition of further appropriations after the passage of the ordinance containing' the annual appropriation bill, is obligatory upon the council so far as the subject of appropriation belongs to the class which it was discretionary for that body to include in or omit from the annual appropriation bill; but the plaintiff, whose valid; unsatisfied judgment against the city has, through willful perverseness, or, it may "be, negligence, merely, been omitted from the annual appropriation bill, is not concluded thereby, for the members of the council can not be thus allowed, by their failure to perform their duty, to nullify the statute imposing that duty. The People v. Supervisors of Chenango, 8 N. Y. (4 Selden,) 330, and cases there cited.

We have not deemed it necessary to go through the pleadings, and state, in order, the substance of each. We have supposed and assumed it to be sufficient that the question we have considered is fairly presented by the pleadings, and that the conclusion we have, reached leads to an affirmance of the judgment.

The sufficiency of the service, under the admitted facts, we think, is clear. The copy of the judgment, with the written demand annexed thereto, was presented to one of the aider-men who was presiding as chairman of the council. He reported what he had received, to the council, so that we dhink every member present must have understood what was demanded.

We find no cause to disturb the judgment below. It is affirmed.

Judgment affirmed.

This case, when first considered, was assigned to the late Mr. Justice Dickey to prepare the opinion, but no opinion having been prepared in his lifetime, -the record was reassigned at the November term, A. D. 1885.

Subsequently, on the 16th day of August, 1886, upon an application for a rehearing in this case, the following additional opinion was filed:

Per Curiam :

After careful consideration of the petition for rehearing herein, we have been unable to perceive any sufficient ground for ordering a re-argument of the case. Only one of the points urged in the petition requires, in the view we take of the case, any answer. The others were sufr ficiently considered when the opinion was adopted, and .as to thbse, it contains the answer thought to be correct.

The point not heretofore made is urged, that by the amendment of the 3d of May, 1873, to the Revenue law, (chap. 120, sec. 122, Hurd’s Stat. 1885, p. 1011,) all cities “shall annually, on or before the second Tuesday in August, certify to the county clerk the several amounts which they require to be raised by taxation, ” etc. But the act approved May 28,1879, enacted six years after the amendatory act referred to, entitled “An act to amend section 1 of article 8, of an act to provide for the incorporation of cities and villages,” approved April 10, 1872, provides that “the city council or board of.trustees, as the case may be, shall annually, on or before the third (3d) Tuesday in September in each year, ascertain the total amount of appropriations, for all corporate purposes, legally made and to be collected from the tax levy of that fiscal year, and by an ordinance specifying in detail the purposes for which said appropriations are made, and the sum or amount appropriated for each purpose, respectively, levy the amount so ascertained upon all the property subject to taxation within the city or village, as the same is assessed or equalized for State and county purposes for the current year. A certified copy of such ordinance shall be filed with the county clerk of the proper county, whose duty it shall be to ascertain the rate per cent which, upon the total valuation of all the property subject to taxation within the city or village, as the same is assessed and equalized for State and county purposes, will produce a net amount not less than the amount so directed to be levied; and it shall be the duty of the county clerk to extend such tax in a separate column upon the book or books of the collector or collectors of State and county taxes within such city or village. ” (Laws of 1879, p. 66, sec. 1.) This is the section referred to in the opinion, and being the last expression of the will of the General Assembly upon the subject, it must, as we think the law to be, control.

The rehearing is denied.

Rehearing denied.


author: Mr. Justice Sheldon

text:
    Secretus Gable v. John Wetherholt.

      Filed at Springfield March 27, 1886.

    1. Landlobd and tenant—tenant claiming adversely to his landlord— right to acquire outstanding title. While the relation of landlord, and tenant exists, the latter, in respect to his obligations to the former, such as the payment of rent and the surrender of the premises at the end of the term, is estopped from disputing his title, or from setting up title in himself or another. But this rule does not prohibit the tenant, during the tenancy, from purchasing any outstanding title, and from asserting the same against the landlord after the expiration of the tenancy, and yielding up the possession. The estoppel to deny the title of the landlord then no longer remains.
    2. There are fiduciary relations where one may not purchase and hold for himself an adverse interest, but the purchase will inure for the benefit of the person toward whom he holds the confidential relations. But a tenant, at least ordinarily, does not occupy such a relation to his landlord, and may purchase an adverse title, and assert it against his former landlord after having surrendered possession to him.
    3. Injunction—as to action of ejectment—where matters of a purely legal character are involved. Where the title and interest oí a defendant in ejectment are purely legal, and his defence available and cognizable at law, it is error to enjoin the prosecution of the action.
    Appeal from the Circuit Court of Cumberland county; the, Hon. William C. Jones, Judge, presiding.
    The bill in equity in this case, filed by John Wetherholt, against Secretus Gable and others, on February 20, 1883, represents that the complainant is the owner in fee of the east half of the south-west quarter of section 21, in township 9, north of range 9, east, in the county of Cumberland, in this State, except seventeen acres off of the south end and five acres off of the north end of the tract; that he and his grantors have had the sole and exclusive possession of the land, paying all taxes thereon for the past twenty years and more, claiming the same by paper title of record; that on October 15, 1839, one Joseph Musquefelt purchased from the United States the following described lands, including the land of complainant, viz: The south-east quarter of the north-west quarter, the south-west quarter of the north-east quarter, the north-east quarter of the north-east quarter, the west half of the south-east quarter, and the east half of the south-west quarter, all of said section 21; that on October 7, 1842, said Musquefelt sold and conveyed all of said lands to one John Bresler; that Bresler died leaving no child or children, or descendants of such, but leaving his widow, Elizabeth, who claimed to be entitled to one undivided half of said lands; that, she subsequently intermarried with one Henry Feltner, and on October 19, 1854, conveyed said lands, including the complainant’s, to said Feltner, who afterward sold and conveyed the same to Samuel Peters; that in 1862, in a suit for partition of said lands, brought by Peters against the seven brothers and sisters of John Bresler as his heirs, there was an order of partition made between the parties, in which there was set off to Peters, to be held by him in severalty, the west half of the south-east quarter, and the southwest quarter of the north-east quarter of said section 21, and to each of the seven brothers and sisters of John Bresler a parcel of seventeen and one-seventh acres in the east half of the south-west quárter, and the south-east quarter of the , north-west quarter of said section 21, to hold in severalty, two of such brothers being Michael Bresler and Peter Bresler, and one of said sisters, Mary Stewart; that complainant bought the land he claims to own from David P. Greeson, on December 1, 1881; that at the time of such purchase, Greeson had before entered into a written lease with one Lowry Gable, leasing said land to the latter for the term of five years, from and after March 1, 1882, and that Gable has, ever since the lease went into effect, had the land in possession, and lived on the same; that in 1882, Gable, so being the tenant of complainant, obtained from Michael Bresler and Peter Bresler, pretended heirs of John Bresler, a deed to a portion of complainant’s land; that said Gable, on January 29,1883, conveyed said land to his brother, Secretus Gable; that on January 29, 1883, Secretus Gable commenced his suit of ejectment against complainant and Lowry Gable, to recover, under his said deed from Lowry Gable, the possession of the land, which suit was then pending and undetermined. The bill prays that complainant’s title to the land may be confirmed, that Secretus Gable may be enjoined from further prosecuting his ejectment suit, and for the removal of clouds upon the title.
    The answer of Secretus Gable contains a general denial of the allegations of the bill, avers that he is the legal owner of the land, and that the court has no jurisdiction to try purely legal titles, as are involved in this case. Replication was filed, proofs taken, and on hearing the court decreed that the title to the land was in the complainant; that upon his payment to Secretus Gable, within a time mentioned, of one hundred dollars, with interest from July 19, 1882, the latter-should execute to the complainant a deed conveying the land so purchased by Secretus Gable from Lowry Gable, and that Secretus Gable be enjoined from further prosecution of his ejectment suit. Secretus Gable takes this appeal.
    Messrs. Craig & Craig, and Mr. Levi N. Brewer, for the appellant:
    The only legal question in this case is whether a tenant, during his tenancy, may purchase an interest in the demised premises adverse to the landlord. That he may not, has never been held. Nor is it law that in case the tenant purchases an adverse interest, he holds it as a resulting trust. It is true the tenant can not set up the adverse interest as between himself and the landlord while the relation exists.
    If the complainant had,any defence, it.ivas available in the ejectment suit. The court therefore erred in enjoining that suit.

      The estoppel between landlord and tenant does not prevent the tenant from purchasing any outstanding title, and he may use it after the expiration of his tenancy. 2 Leading Cases Am. Law, Real Prop. 70.
    Mr. W. S. Everhart, for the appellee:
    That a tenant can not deny his landlord’s title nor set up title in himself or another, we submit the following: Doty v. Burdock, 83 Ill. 473; Taylor on Landlord and Tenant, sec. 629, p. 451; 6 Wait’s Actions and Defences, 709; Bigelow on Estoppel, 348.
    It makes no difference that a tenant may have been in possession as tenant of a former landlord. He is precluded from denying the title of either. Nor has one succeeding to right of tenant, by deed or otherwise, greater rights than the tenant. Harden v. Forsythe, 99 Ill. 312; Stewart v. Roderick, 39 Am. Dec. 71; Jackson v. Davis, 15 id. 451; Emerick v. Tavener, 58 id. 217.
    Neither landlord nor tenant can take advantage of the other, and if either attempts it the other has his remedy in equity. 1 Story’s Eq. Jur. sec. 323. See, also, O’Halloran v. Fitzgerald, 71 Ill. 53.
    That a court of equity has jurisdiction of this case, we submit the following authorities in addition to the one just cited: Weaver v. Poyer, 79 Ill. 417; People v. Force, 100 id. 549; Harrell v. Litzland, 81 id. 457; Aholtz v. Peller, 88 id. 24; Brooks v. Keams, 86 id. 547.
   Mr. Justice Sheldon

delivered the opinion of the Court:

There is manifest error in this decree. The evidence entirely fails to show tw'enty years’ possession of the land in the complainant and his grantors, or any such possession and payment of taxes, or any such payment of taxes, as W'ould vest in him the ownership of the land. All of title which the proof shows to be in him to any of the land, is under his purchase from. David P. Greeson; and by that purchase there was acquired only the interest in the land of Mary Stewart, as a sister and one of the heirs of John Bresler, which interest embraces no part of the land in controversy. The land in dispute is the interests of Michael Bresler and Peter Bresler, being the two parcels of land of seventeen and one-seventh acres each, which were set off to them in the partition suit, as two of the brothers and heirs of John Bresler. David P. Greeson made a lease of this land, with other land, to Lowry Gable, on November 28, 1881, for five years, from March 1, 1882, and Gable went into possession under the lease. On December 3, 1881, Greeson conveyed the land to Wetherholt, the appellee. In July, 1882, Gable being in possession as such tenant, obtained from the Breslers his deed from them of their interests, being the land in controversy, and in 1883 Lowry Gable sold and conveyed the land to Seeretus Gable, the appellant.

. The position taken by Wetherholt, the appellee, is, that Lowry Gable, while such tenant, could not purchase and hold .for himself an outstanding title to the land; that his relation of tenant was a fiduciary one toward his landlord, and such purchase made by him inured to the benefit .of the landlord or his grantee. And such must have been the theory of the decree, as it ordered a conveyance of the land by Secretus Gable to Wetherholt, on being repaid the purchase price which was paid for the land. In support of this position, reliance is had upon the doctrine that a tenant can not deny his landlord’s title, nor set up against him title in himself or another. This principle is not broad enough in extent to cover appellee’s contention in this case. It applies while the relation of tenant exists, and as respects any obligation under the lease. The tenant must pay rent under his lease, and must surrender up to the landlord the possession he receives from him. As against these or other obligations under the lease, the tenant may not deny his landlord’s title, and set up title in himself or another. But the principle relied on, or any other rule that we know of, does not prevent the tenant from purchasing any outstanding title, and, after the expiration of the tenancy and the yielding up of the possession, from asserting such title against the former landlord. The estoppel to deny the title of the landlord then no longer remains. Jackson v. Harper, 3 Wend. 246; Hodges v. Shields, 18 B. Mon. 828; Williams v. Garrison, 29 Ga. 503; Brown v. Keller, 32 Ill. 151.

There are fiduciary relations where one may not purchase and hold for himself, an adverse interest, but the purchase will inure to the benefit of the person toward whom he holds the confidential relation. But landlord and tenant, at least in such a case as here presented, we do not understand to fall in this class of relations.

There was error in decreeing the title to the land to be in John Wetherholt, and in decreeing that Secretos Gable should convey the land to Wetherholt; also, in enjoining the prosecution of the ejectment suit. Whatever of interest in the land the record shows to be in Wetherholt, is legal, and not, equitable, and might as well have been set up in the ejectment suit as in this suit in chancery, and therefore the prosecution of the ejectment suit should not have been interfered with.

The decree, so far as it respects Secretos Gable, is reversed, and the cause remanded for further proceedings in conformity with this opinion.

Decree reversed.