author: Mr. Justice Mulkey

text:
    Edgar T. Schmidt et al. v. Mary E. Sinnott.

      Filed at Springfield March 28, 1882

      Rehearing denied June Term, 1882.

    1. Evidence—cross-examination—as to enmity of witness towards the party against whom he had testified. On the cross-examination of -one of the plaintiff’s witnesses, he was asked if there had not been a feud or quarrel between his family and one of the defendant’s family, which, on objection, was disallowed, the court remarking to counsel that they might inquire as to the witness’ own feelings. The witness had already stated that he had not spoken "a word to such defendant since he was a little boy, though his feelings toward him were perfectly friendly: Held, that while under the latitude of cross-examination it would not have been improper to allow the question, there was no such error in disallowing it as to call for a reversal. The witness had already stated enough to show the relations between the parties, and that was all the excluded question could have properly elicited.
    2. Instruction—as to the use of “due and proper care”—whether submitting a question of law. An instruction in an action for a personal injury growing out of the alleged negligence of the defendant, which submits to the jury the question whether the plaintiff, at the time of the injury, was exercising “due and proper care,” is not open to the objection that it submits a question of law to the jury.
    3. The words “due and proper care,” and “ordinary care,” are not unlike in their character in such connection, and while it is the province of law to determine in the abstract what is “ordinary care” as well as what is “due care,” yet where a plaintiff bases his right to recover for an injury received at' the hands of the defendant, in part upon an allegation that at the time of receiving such injury he was exercising due care, and such allegation is traversed by the defendant’s plea, the issue thus formed presents a question of fact for the determination of the jury, precisely in the same manner as if the words “ordinary care” had been used.
    4. -It can not be said that an instruction framed in the very words of the " issue is improper, as submitting to the jury a mere question of law, which simply tells the jury, in order to recover it must appear from the evidence that the plaintiff was exercising due and proper care at the time of receiving the injury.
    5. Same—former decision. If some of the expressions used in the case of Stratton v. Central City Horse Ry. Co. are in conflict with these views, they must be regarded as modified accordingly.

      6. Same—explanation of terms, etc. It is often important and necessary for the court to explain to the jury the meaning of technical terms not in common use, or to define the meaning of words or phrases in a contract, statute, or the like. And.it is proper for the court, on its own motion or on request, to define specifically what is meant in an instruction by the words “due and proper care,” though there is no necessity for doing so except upon request.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Adams county; the Hon. John H. Williams, Judge, presiding.
    Mr. Wm. W. Berry, for the appellants :
    In an action to recover damages for injuries sustained by a person who has been run over in the street by a party driving a horse and buggy, it is error to instruct the jury that the person injured may recover- if he was using due and” proper care, and if, by the use of ordinary and proper care by the party driving, the injury could have been avoided. Stratton v. Central City Horse Ry. Co. 95 Ill. 25.
    Such an instruction leaves the jury to determine the question of law as to what is proper care, or as to what degree of care the law requires in such case, and they are not confined to the question whether the plaintiff used ordinary care.
    The feelings of a witness towards the parties, and the motives and temper governing or influencing him in the particular matter or transaction, are proper subjects of inquiry, and are not regarded as collateral to the issue. Nation v. People, 6 Parker, 258; Howell v. Ashmore, 22 N. J. L. 261; Hansell v. Erickson, 28 Ill. 257; 1 Wharton on Evidence, sec. 408.
    Messrs. Carter, Sibley & Govert, for the appellee :
    Exception is taken to plaintiff’s third instruction, although the attention of the court below was not called to the objection here urged. It is claimed that “proper care” is a question of law, on the authority of Stratton v. Central City Horse

      Ry. Co. 95 Ill. 25. The charge in that case was so different from this, that it affords no reason for considering the instruction in this case as misleading, and the words “due and proper care” may be rejected as surplusage, and the instruction still be good.
    But, taking all the instructions together, it is difficult to see how the defendants were prejudiced by this instruction. See Haywood v. Merrill, 94 Ill. 349; Lawrence v. Hageman, 56 id. 68; Toledo, Wabash and Western Ry. Co. v. Ingraham, 77 id. 309; Durham v. Goodwin, 54 id. 469; Van Buskirk v. Day, 32 id. 260; Morgan v. Peet, 32 id. 281; Latham et al. v. Roach, 72 id. 179; Stowell v. Bragh, 79 id. 525.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Edgar T. and William G. Schmidt, on .the afternoon of the 1st of September, 1879, while driving along Jersey street, in • the city of Quincy, in a one-horse buggy, at a somewhat rapid rate, suddenly came in contact with Mary E. Sinnott, a small child, who was at the moment attempting to cross the street. She was knocked down, the horse and buggy passing over her, and was so disabled as to be confined to her bed and room most of the time for about a month, and had not fully recovered at the time of the trial, over a year afterwards. Indeed, the evidence tends to show that she is permanently injured. To recover for the injuries thus occasioned, she, by her next friend, Thomas Sinnott, instituted an action of trespass in the circuit court of Adams county, against the two Schmidts, where the same was tried before the court and a jury, resulting in a verdict and judgment in her favor for $1140, which, on appeal to the Appellate Court for the Third District, was affirmed, and the Schmidts, by further appeal, bring the case here for review.

The declaration charges that the defendants, “not regarding their duty to govern said horse in a careful manner, did so negligently and recklessly drive said • horse as to cause the same to run over the plaintiff then and there attempting to cross said street in a proper and careful manner, with great force and violence, thereby inflicting upon the plaintiff great bodily injury, ” etc. The facts here charged, including the negligence and recklessness of the defendants and the alleged proper care on the part of the plaintiff, are put directly in issue by the defendants’ plea of not guilty, and the cause was tried upon ■ this issue, resulting adversely to appellants; and the conclusion thus reached, so far as the facts are concerned, must be accepted as a finality, as we are not permitted to review them here.

We start out, then, with the fact conceded that while the plaintiff was attempting to cross the street “in a proper and careful manner, ” she received the injuries complained of, through the negligence and recklessness of the appellants.' It only remains, therefore, to inquire whether the trial court committed any error in law which may have contributed to the result stated, for which the Appellate Court should have reversed the judgment.

On the trial of the cause, Dr. Koch, a witness on behalf of plaintiff, was asked this question: “Has there not been a feud or quarrel between your family and Dr. Schmidt’s family?”—which, on objection, was held improper, and disallowed, the court remarking to counsel at the time they might inquire as to the witness’ own feelings,—and it is claimed this was error. While we do not think, under the latitude of cross-examination, there would have been anything improper in allowing the question, yet questions of this character, where the matter sought to be elicited does not directly affect the controversy, lie so much in the discretion of the trial court that courts of review are not inclined to interpose, except in extreme cases, where there is just reason to believe injustice has been done by reason of an improper exercise of such discretion. We think it clear, however, there was no such error in this case. The witness had already stated he had not spoken a word to Dr. Schmidt, one of the defendants, since he was a little boy, though his feelings towards the defendants were perfectly friendly. These two facts clearly show the relations between the parties, and that is all the excluded question could properly have elicited.

It is also objected the court gave improper instructions on behalf of the plaintiff. The one chiefly complained of is plaintiff’s third instruction, which is as follows:

“Even if the jury should believe from the evidence that the defendant was not, at the time of the injury complained of, driving at an unusual rate of speed, still, if they further believe from the evidence that the defendants did commit the injury upon the plaintiff, as charged in the declaration, while she was using due and proper care, and the defendants might, by using ordinary and proper care at the time, have avoided committing such injury, and that in consequence of a want of such reasonable and ordinary care on the part of the defendants the plaintiff received the .injuries complained of, then the jury should find the defendants guilty, and assess the plaintiff’s damages at such sum as they may think, from the testimony, will compensate her for the injuries so sustained by her, not to exceed the amount claimed in the declaration. ” •

To avoid the possibility of doing counsel injustice in attempting to state the substance of their criticism of this instruction, we give it in their own words. It is as follows: “Instruction number three of this series authorizes a verdict for the plaintiff if she was ‘using due and proper care’ at the time of the accident, and when by ‘using ordinary and proper care’ the defendants might have avoided committing the injury. What is due and proper care, as the court says in Stratton v. Cent. City Ry. Co. 95 Ill. 25, is matter of law, and is to be ascertained and defined by the court. Such an instruction is an abdication of its functions by the court, and submits problems of law to the jury which frequently tax the capacity of the ablest jurists. ”

The objection to this instruction, as we understand it, consists in the use of the phrase “using due and proper care. ” Had the framer of the instruction used the words “ordinary care, ” instead of “due and proper care, ” we presume the instruction would be unexceptionable to counsel. We confess we are unable to perceive the force of the criticism. It is the province of law to determine in the abstract what is ordinary care as well as what is due care, and there is no difference in the character of the two expressions, viewed from this standpoint. But where a plaintiff bases his right to recover for an injury received at the hands of the defendant, in part upon an allegation that at the time of receiving such injury he was exercising due care, and such allegation is traversed by the defendant’s plea, the issue thus formed presents a question of fact for the determination of the jury, precisely in the same manner as if the words “ordinary care” had been used. To the unprofessional mind these terms would doubtless convey substantially the same meaning, and for all practical purposes, when applied to an actual case in court, they do amount to the same thing. Due and proper care simply means that degree of care which the law requires under a given state of circumstances, so that in every ease where the measure of diligence is ordinary care, the exercise of such ordinary care would, within the meaning of the law, be using- due care in that particular case, and so it would be in a' case where the law exacts a higher degree of diligence. The exercise of this higher degree of diligence would, within the meaning of the law, be using due care or diligence under the circumstances of that case.

The term “ordinary care, ” when used in a general sense, without reference to the facts of any particular case, comes nearer expressing, perhaps, a definite measure of responsibility than the expression “due care,” yet the degree of diligence which it implies greatly varies according to the character of the circumstances to which it relates. A slight examination of the precedents, as found in Chitty and other standard authors, will show that in actions for personal injuries the expressions “due care, ” and “due and proper care, ” are uniformly used in charging the degree of diligence or care alleged to have been exercised by the plaintiff at the time of receiving the injury complained of; and in actions against carriers for loss of goods, and also for injuries to the person, the same terms are almost uniformly used in charging the degree of care which the carrier assumed, and also in assigning a breach of such undertaking. It is therefore clear that these-terms are not only proper when thus used, but are technically correct, and where the allegations of a declaration thus framed are properly traversed, the questions whether the plaintiff did, and whether the defendant did not, exercise due and proper care, as charged in the declaration, are presented directly as questions of fact for the determination of the jury. So in the case before us, one of the plaintiff’s material allegations, upon which an issue was formed and submitted to the jury, is, that at the time of the receiving of the injury she was using “due and proper care.”

Upon what principle, then, can it be said that an instruction framed in the very words of the issue is improper, as submitting for the determination of the jury a mere question of law, which simply tells the jury, in order to recover it must appear from the evidence the plaintiff was exercising due and proper care at the time of receiving the injury? If the ground of the objection is the court should have inserted in the instruction the legal signification of those terms, the answer is, we know of no rule of law requiring it. The words are in common use, and are just as well understood by the generality of men as the words “in good faith,” “without notice,” “maliciously,” “fraudulently,” and the like. If instead of “due and proper care,” the words “ordinary care” had been used, it is not pretended that it would have been necessary to have inserted- in the instruction the legal meaning of the latter terms, and if there is no such requirement as to them, upon what reasonable ground or theory can it be claimed any such necessity exists as to the words “due and proper care?” It could not seriously be contended for a moment there is any legal presumption that the jury would understand the legal signification of one set of terms and not the other. To require the court to insert the meaning of all the terms and expressions used in an instruction, to make it unobjectionable, would tend to utter confusion rather than aid the jury in arriving at a just conclusion with reference to the case before them. If it is necessary to explain the terms used in an instruction, would it not be equally necessary to explain the terms of the explanation ? And if so, where would the matter stop ?

It is often highly important, and even indispensable, for the court, to explain to the jury the meaning of technical terms not in common use, or define the meaning of words or phrases -used in a contract, statute, or the like, and even in the case before us it would have been altogether proper for the court, on its own motion or on the application of either of the parties, to have given an instruction specifically defining what was meant by “due and proper care,” as applicable to the case in hand, but there was no absolute necessity for doing so unless such an instruction had been asked; nor was there any more reason or propriety, in the absence of such application, for giving such an instruction, than there would have been under like circumstances had the term “ordinary care” been used, for the reason, as we have already seen, there is no principle of law which requires one of these expressions to be explained to the jury more than the other. The views here expressed are fully sustained by a long line of decisions: Miller v. Balthasser, 78 Ill. 302; Kerr v. Forgue, 54 id. 482; Chicago, Burlington and Quincy R. R. Co. v. Greg ory, Admx. 58 id. 272; Indianapolis and St. Louis R. R. Co. v. Evans, 88 id. 63; Schmidt, Admx. v. Chicago and Northwestern R. R. Co. et al. 83 id. 405; Indianapolis and St. Louis R. R. Co. v. Stables, 62 id. 313; and if some of the expressions of the court in the case of Stratton v. Central City Horse Ry. Co. 95 Ill. 25, are in conflict with what is here said, they must be regarded as modified by the present opinion.,

We have considered the instructions in this case very carefully, and have no hesitancy in saying that when considered as a whole, they presented the law of the ease very fully and fairly to the jury—more so, really, than is generally the case. As man, when representing the highest state of culture and civilization, is conceded to be imperfect, it necessarily follows, on the principle a stream can never rise higher than its fountain, all his works are to some extent imperfect; and this principle extends to instructions as well as everything else. It is not to be expected they will be precisely accurate in every particular. It is sufficient if they are substantially so. The administration of the law is intended to be practicable, and to reverse cases and set aside the verdicts of juries merely because the highest degree of accuracy has not been attained in the preparation of the instructions, when the court can see substantial justice has been done, would not only be defeating the chief object of judicial investigations, but would bring the court into deserved disrepute.

The judgment will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Sheldon

license: Public Domain

text:
    Joseph Yackle v. Matilda Wightman.

      Filed at Springfield March 28, 1882

      Rehearing denied June Term, 1882.

    1. Lien—of a decree on land out of county. Without the aid of the statute, a judgment or decree of the circuit court is a lien only upon lands within the county in which the judgment or decree was rendered, and the court has no power to make its decree a lien upon lands of the defendant in another county, merely by a provision therein to that effect, as against an innocent purchaser.
    2. Same—how a decree or judgment may be made a lien in another County. To make a judgment or decree rendered in one county, on change of venue, a lien, under the act of 1874, upon the defendant’s real estate in the county where the suit was brought, a transcript- thereof must be filed with the clerk of the circuit court of the latter county, and an entry of the same made in the judgment docket, after which such judgment or decree will have the same effect as if rendered in the court in which the suit was originally instituted. The recording of a copy of such decree in the book of the record of deeds, in pursuance of a direction in the decree, will not be regarded as a compliance with the statute, and will create no lien upon the defendant’s lands as against an innocent purchaser for value.
    Appeal from the Circuit Court of Tazewell county; the Hon. John Burns, Judge, presiding.
    This was a suit in ejectment, brought by Matilda Wight-man, against Joseph Tackle, in the circuit court of Tazewell county, to the May term, 1881, to recover the possession of the north-east quarter of section 25, town 25 north, range 5 west of the third principal meridian, in Tazewell county, Illinois, wherein the plaintiff recovered, and the defendant appealed.
    It was admitted, on the trial, that John Wightman was the owner in fee of the premises in controversy on June 16, 1858, and that both parties claimed from him as a common source of title. Appellee, Wightman, to recover in the action, relied upon a title she claimed to have derived by deed of the premises from the master in chancery of Tazewell county to her, as the assignee of the purchaser of the same at a sale thereof made by such master under a decree rendered by the circuit court of Peoria county, Illinois, on March 22, 1859, in a suit for a divorce brought by her against her husband, said John Wightman. The sale was made by said master on November 22, 1879, upon the affidavit of Matilda Wightman presented to him, in which it was stated that eight semi-annual payments of alimony, of $250 each, for the years 1876, 1877, 1878 and 1879, due on the first days of January and July of each of said years, by the provisions of said decree, from John Wightman, were unpaid, and requesting the master to collect the same. At the sale one James Haines, Jr., bid off the premises in controversy, and another tract of eighty acres, all situated in Tazewell county, for $2327.10; and it is recited in the deed that Haines had assigned the certificate of sale from the master to Matilda Wightman, who, on February 26,1881, received the master’s deed purporting to convey to her the premises in controversy, and the eighty acres.
    The suit for divorce was commenced June 16, 1858, in the circuit court of Tazewell county, by Matilda Wightman against John Wightman. The cause was taken, by change of venue, to the circuit court of Peoria county, and the latter court, on March 22, 1859, rendered a final decree. The decree provides that $500 per annum be allowed as alimony to the complainant, Matilda Wightman, in installments of $250 each, to be paid on the first day of January and first day of July, commencing January 1, 1860, and payable at the expiration of every six months thereafter during her natural life, the decree declaring that it was made a specific lien upon the premises in controversy and certain other described tracts of -land, all in Tazewell county, and that in the event of the defendant failing to pay the complainant any part of said sum of money in the manner and at the time mentioned in the decree, then the master in chancery of Tazewell county was ordered, on the application of the complainant, stating the fact of such failure hy affidavit, to proceed to advertise and sell the tracts of land described in the decree, or any part thereof, to the highest bidder, for cash in hand, to raise the amount which might be then due the complainant as alimony, and to make sale in like manner, from time to time afterward, upon like default of payment.
    ■ It was ordered that the decree be recorded in Tazewell county, and that from and after its rendition the defendant be enjoined from selling or conveying said lands, except subject to the lien thereby created upon the same. This decree, rendered March 22, 1859, was recorded March 24, 1859, in the book of deeds in the recorder’s office of Tazewell county. The master’s deed to Matilda Wightman, dated February 26, 1881, was recorded in such office February 28, 1881.
    The defendant, to show right of possession in himself, introduced in evidence a warranty deed of conveyance of the premises in controversy, together with lot 6 and the east half of lot 10, in block 64, in Pekin, in this State, from John Wightman and wife to Job Newton, for the expressed consideration of $10,000, the deed being of the date of December 23, 1875, and recorded December 29, 1875, and introduced a lease of the premises from Newton to defendant.
    The bill in said suit for divorce alleged that the defendant was the owner of the premises in controversy, and various other tracts of land in Tazewell county and other counties in the State, and prayed for a divorce and alimony. The court below instructed the jury that the Peoria county circuit court had the power to make the decree a specific lien on any land of the defendant, named in the bill, situated in Tazewell county, and that the decree, upon its rendition, became a lien upon the premises in controversy, and that the master’s deed to plaintiff conveyed to her the fee simple title to the premises, entitling her to them as against any grantee from John Wightman subsequent to the date of the decree.
    Mr. N. W. Green, and Mr. Wm. Don Maus, for the appellant :
    The lien of a decree for the payment of money for alimony was subject to the same restrictions, under section 14 of the Chancery Code of 1845, as judgments at law. Eames et al. v. Germania Turnverein, 74 Ill. 56.
    A judgment was a lien only upon the lands of the defendant in' the county where it was rendered, and not beyond. Bustard v. Morrison, 1 Scam. 236; Durham v. Heaton, 28 Ill. 264; Kinney et al. v. Knoebel et al. 51 id. 119; Ewing et al. v. Ainsworth, 53 id. 465; Hart v. Wingart, 83 id. 282.
    The circuit court of Peoria county could not create a lien upon lands in Tazewell county by its decree, and except by issuing an execution, and making a levy and filing the same, such lands could not, under the law and decisions, be made subject to the lien of such decree. Cornwell v. Watkins, 71 Ill. 492; Worcester National Bank v. Cheeney, 87 id. 607.
    Messrs. Prettyman & Sons, for the appellee :
    This case is not like a judgment or simple decree for the payment of money, and therefore the statutes and authorities referred to by appellant to show that the lien of a judgment or decree in a county is bounded by the county in which it is rendered, and can be made a lien in another county only by an execution levied there, has no application here.
    Under the statute in force at the time this decree was rendered, the court was authorized to make its decree for alimony in. a divorce suit a lien on the defendant’s lands. Acts 1859, p. 28; Rev. Stat. 1874, p. 422, secs. 18, 20. See, also, Wightman v. Wightman, 45 Ill. 174.
    The bill for divorce and alimony created a lien on the premises, and they became subject to the decree for all the equities established by the decree, and a subsequent purchaser is affected by notice. Vanzant v. Vanzant, 23 Ill. 543.
    The master’s deed, where the decree is made a specific lien, relates back to the date of the decree, and becomes a superior title to all grants and conveyances of the defendant in the decree made after the date of the decree.
   Mr. Justice Sheldon

delivered the opinion of the Court:

The plaintiff’s claim of title is by master’s deed, dated February 26, 1881, and the defendant’s landlord’s (Newton) claim of title is by deed dated December 23, 1875, and recorded December 29, 1875, a period of more than five years anterior to the date of plaintiff’s deed. This fixes Newton’s as the paramount title, unless at the time of the sale and conveyance from John Wightman to Newton, December 23, 1875, the premises were subject to the lien of the decree as against Newton.

In the case of Sapp v. Wightman, decided at the present term, (ante, p. 150,) a suit in ejectment, where the title to the other tract of eighty acres embraced in this same master’s deed was involved, we considered the effect of this decree as being a lien upon these lands in Tazewell county, and determined that it was not a lien upon them; that the lien of a judgment or decree of the circuit court of a county is a lien only upon lands within its territorial jurisdiction, and no lien upon lands without the county in which such judgment or decree is rendered, and that the court had no power to make its decree a lien upon lands beyond the boundary of its territorial jurisdiction. That decision, however, was made without reference to the effect of the statute of 1874, which provides for filing the transcript of a judgment or decree, in a case where the venue has been changed, in the clerk’s office of the county from which the change of venue was taken. The sale and conveyance from John Wightman, there, having been in 1866, that case was not affected, by this statute, passed afterwards, in 1874. But in the present case the sale and conveyance from Wightman was in 1875, after the passage of that statute, hence there is the additional question to be considered in the present case of the bearing of that statute.

The statute is: “Upon the entry of any judgment or decree in any civil case in which the venue has been changed, it shall be lawful for the party in whose favor the judgment or decree is rendered, to file in the office of the clerk of the court where the suit was instituted, a transcript of such judgment or decree, and said clerk shall enter the same, in his judgment docket, and execution may issue thereon, and the same shall, from the filing of such transcript, have the same operation and effect as if originally rendered in such court. ” Rev. Stat. 1874, p. 1097, sec. 34. Without this statute, and the doing of what was therein prescribed, the decree could not be made a lien upon lands in Tazewell county as against an innocent purchaser for value. .

But no step whatever was taken thereunder after the passage of the act. True, before the passage of the act, and soon after the rendition of the decree, in obedience to its express direction, the decree was recorded in the book of record of deeds in the recorder’s office of Tazewell county. This was merely to comply with the decree. The law did not provide for the decree to be so recorded, and the recording of it affected nobody with notice of the decree. The records of the clerk’s office and the judgment docket is where, under the law, intending purchasers of land are to look for judgments and decrees against it, not the records of the recorder’s office. And, although the clerk of the circuit court is ex officio recorder of the county, this recording in 1859 can not be accepted as a substitute for, and to stand in the place of, the filing under the statute of 1874, of a transcript of the decree in the office of the clerk of the circuit court, and the clerk’s entry of the same in his judgment docket. Had the complainant in the divorce suit proceeded, under this statute of 1874, and filed a transcript of the decree in the clerk’s office of the circuit court of Tazewell county, the clerk, as it was his duty to do, would have entered the same in his judgment docket, and this would have affected purchasers of the land with notice of the decree, and it would have been a valid lien upon the land, under that statute.

The requisite proceeding, then, not having been taken, under this statute of 1874, to give to the decree the same operation and effect as if originally rendered in the circuit court of Tazewell county, we find that there was no lien created upon the land under and by virtue of this statute of 1874, and hence, that the purchaser from John Wightman • (Newton) took by his conveyance from Wightman the title in fee, unaffected by any lien of this decree of the Peoria county circuit court. It follows that the instructions to the jury were erroneous, and the judgment will be reversed and the cause remanded.

Judgment reversed.

Mr. Justice Scott dissenting.


text:
    The Chicago Theological Seminary v. Asahel Gage.

      Filed at Ottawa May 12, 1882.

    1. Appeal from trial court to this court—in what cases. Since the amendatory act of 1879, amending section 88 of the Practice act, all eases involving a franchise, freehold or the validity of a statute, without regard to whether they are cases in chancery or at law, are required to be brought directly from the trial court to this court, and not to the Appellate Court.
    2. Same—whether a freehold is involved. A freehold is involved in all cases where real estate is claimed under a deed regular on its face, and purporting to convey title, which is sought to be set aside by an adverse claimant as a cloud upon the title of the latter, and in such cases an appeal lies directly to this court from the trial court.
    3. Bill to foreclose—determining adverse legal titles—former decision. On bill in chancery to foreclose a mortgage, the complainant also sought to have set aside a tax deed for the premises embraced in the mortgage, as an alleged cloud upon the title of the mortgagee. The bill made the alleged owner of the tax deed a party defendant, averring that his claim of title was under a tax sale which was void, and that whatever interest he had in the premises was subsequent and subordinate to the rights of the mortgagee. Bor want of any answer by that defendant the bill was taken as confessed against him, and a final decree was entered annulling and setting aside his tax deed as a cloud upon complainant’s title. Upon the question as to the right of the court below to entertain the bill at all, in so far as it concerned the alleged claim under the tax deed, this court said there seemed'to be a misapprehension as to the true scope and effect of the decision in Gage v. Perry, 93 Ill. 176, where it was held that a court of equity had no right, upon a bill to foreclose a mortgage, to consider and pass upon an independent adverse claim of title, unconnected with that under which the mortgagee claimed, and alleged to be a cloud upon the mortgagee’s title. In that case the owner of the tax title which constituted the alleged cloud, appeared, and answered, setting up his title as adverse to and independent of the supposed title of the mortgagor or of the mortgagee. That decision should be limited to the facts so disclosed. In this case no such defence was set up, and the allegations of the bill were admitted by the default to be true.
    4. Practice—in chancery—time to object for multifariousness, or that there is a remedy at law. Where a bill in chancery for the foreclosure of a mortgage, also seeks to have removed an alleged cloud upon the title under which the mortgagee claims, the bill disclosing upon its face that the alleged cloud consists of an adverse claim of title independent of and unconnected with that of either the mortgagor or the mortgagee, an objection that the bill is multifarious because of the two-fold character of relief sought, or because the complainant has an adequate remedy at law in respect of the adverse claim of title, can not be availed of in the first instance in a court of review.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. E. S. Williams, Judge, presiding.
    The board of directors of the Chicago Theological Seminary exhibited their bill in chancery in the circuit court of Cook county, against Joshua A. Severns, Thomas D. Snyder, Asahel Gage, and others. The purpose of the bill was to foreclose a deed of trust executed by Severns to Snyder to secure a promissory note given by Severns to complainants,, and also to remove an alleged cloud upon the title of a part of the mortgaged lands. In respect to a portion of the claims constituting the alleged cloud upon title, the bill averred that defendant Gage claimed to have interests in said premises by reason of certain pretended sales thereof for the State and county taxes pretended to have been assessed and levied thereon," and also for pretended sales for the city taxes of the city of Chicago, pretended to have been assessed and levied thereon, and by deeds issued by the county clerk of Cook county thereunder. But, the bill further alleged, whatever interest in said premises the defendant Gage had, if any, was subsequent and subordinate to the rights of complainant. It was alleged the tax levy, the judgment, and all proceedings thereunder, were void. The prayer of the bill was, besides the ‘"foreclosure, that the tax sales be declared void, and that all tax certificates or deeds held by Gage, affecting the mortgaged premises, be adjudged void, and be delivered up to be canceled.
    Subsequently, upon leave granted, an amended bill was filed, in which it was alleged that Gage claimed interest in certain of the lots included in the deed of trust, through a tax deed issued to him April 18, 1874, by the county clerk, upon certain sales for taxes due for the year 1870; that said sales and deed were void, and that by reason of such pretended sales and deed a cloud existed upon the title of complainants, and the security of their said trust deed was thereby impaired.
    Gage failing to answer the original or amended bill in any way, his default was entered, as follows: “And on filing due proof of personal service issued in said cause on said defendant, Asahel Gage, ten days, at least, before the return day thereof, * * * it is ordered that said defendant, Asahel Gage, * * * plead, answer or demur to the amended bill of complaint in said cause, instanter; and said defendant, though solemnly called in open court, came not, but made default: whereupon it is ordered that the complainant’s bill and amended bill of complaint in said cause be and they are hereby taken as confessed by said defendant Asahel Gage. ”
    Afterwards the final decree was entered, reciting that it appearing from the writs issued to the sheriff of Cook county and the return thereon, that defendant, Asahel Gage, had been served with process at least ten days prior to the first day of the then present term of court, and having been ordered to plead, answer or demur to the amended bill of said complainants instanter, and not having done so, the default of said Asahel Gage was theretofore entered. It was therefore decreed that the bill be taken as confessed against said defendant.
    It was then found by the decree that the allegations in the bill contained were true as therein stated, °and that the equities were with the complainants. After providing for the matter of foreclosure, the decree declared: “It is further ordered, adjudged and decreed that said tax deed, issued April 18, 1874, by the county clerk, upon lots 17, 18, 19, 20, 21 and 22, in block 13, to Asahel Gage, upon certain pretended sales for State and county taxes of the year 1870, is null and void, and is hereby removed and set aside as a cloud upon the title of these complainants.”
    This decree, in so far as it concerned Gage, was reversed by the Appellate Court, and the case is brought to this court on error.
    Mr. Augustus N. Gage, for the defendant
    in error, in support of the motion to dismiss the writ of error, made the following points:
    There can be no jurisdiction in this court to consider this writ of error, unless, first, there is a freehold involved; second, the amount in controversy exceeds $1000; or, third, the Appellate Court has certified questions of law. The nature of the suit is such, this must he so. Sec. 8, Appellate Court act, Laws of 1877, p. 70.
    This is a bill to foreclose a mortgage. In such proceedings a freehold is not involved. Grand Tower Mining Mfg. Co. v. Hall, 94 Ill. 152; Carbine v. Fox, 98 id. 146; Pinneo v. Knox, 100 id. 471; McIntyre v. Yates, id. 475; Gage v. Board of Directors, 8 Bradw. 410.
    This record does not show the value of these lots, and there is nothing to show the value in controversy. “The value in controversy not appearing to be $1000,” the writ of error should be dismissed. Talcott v. Schuh, 95 Ill. 201.
    Mr. David Bales, for the plaintiff in error, contra:

    As to strangers and third parties, the mortgagee is the owner of the fee. He has the jus in re as well as the jus ad rent, and is entitled to all the rights and remedies which the law gives the owner. Oldham v. Pfleger, 84 Ill. 102; Carroll v. Ballance, 26 id. 17; Delehay v. Clement, 3 Scam. 202; Vanzant v. Allmon, 23 id. 33.
    The default was taken upon a bill to foreclose, which charged “that all interest of the defendant was acquired subsequently to the interest of your orator, and is subject to the rights of the complainant, ” and the default. French v. Martin, 19 Ill. 111; Thompson v. Morris, 57 id. 339; Boston v, Nichols, 47 id. 353; Hewing v. Woodhull, 29 id. 92.
    This court will look into the record to see if the amount involved is sufficient to give jurisdiction. Morris v. Preston, 93 Ill. 215.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This was a proceeding in equity, in the circuit court of Cook county, instituted by the plaintiff in error, against the defendant in error and others, for the purpose of foreclosing a deed of trust executed by Joshua Severns to Thomas D. Snyder, to secure a note given by Severns to plaintiff in error for $15,000, and also for the purpose of removing an alleged cloud upon the title of a part of the mortgaged premises. Gage, though duly served with process, made no defence, and a decree pro confesso was rendered against him, setting aside certain tax deeds of his as a cloud upon the title of complainant. There was also a decree of foreclosure as to the other defendants, as prayed for in the bill. This decree as to Gage, was reversed on error by the Appellate Court for the First District, the other parties acquiescing in the decree of the circuit court. Upon removing the record to this court for review, the defendant in error entered a formal motion to dismiss the writ of error, on the ground “there is no law authorizing the writ in a case like this, which was reserved for the final consideration of the cause.

For the purposes of this motion, and "indeed for all other purposes, the record before us, so far as it relates to the foreclosure of the deed of trust and to the parties to the original proceeding who have ceased to have any connection with it, must be kept out of view, and the case must be regarded precisely as if plaintiff in error had in the first instance filed a bill against Gage alone, for the purpose of having his tax deeds set aside as a cloud upon complainant’s title, and Gage had suffered a decree by default to go against him in the manner he did.

The rule seems to be established by this court that a freehold will be regarded as involved in all cases where real estate is claimed under a deed regular on its face, and purporting to pass the title, which is sought to be set aside by an adverse claimant as a cloud upon the latter’s title. Hutchinson v. Howe, 100 Ill. 20; Gage v. Scales, id. 218. While the writer of this opinion has never believed, and does not now believe, the rule in question is warranted by a fair construction of the statute, yet as ,a majority of the court hold the contrary view, as shown in the cases cited, he submits to it purely on the ground of judicial precedent.

Applying, then, the rule to the case before us, it follows that a freehold is involved, and the motion to dismiss the writ of error must be overruled.

The 88th section of the Practice act of 1877 provided that appeals from and writs of error to the circuit courts, etc., in all criminal cases and cases in which a franchise, or freehold, or the validity of a statute was involved, except in chancery cases, should be taken directly to the Supreme Court, provided the party appealing or prosecuting the writ of error should elect to do so. Under that act it was held that chancery causes, although involving a freehold, franchise, or the validity of a statute, could only be brought to ,this court through the Appellate Court. The 88th section, however, was amended, in 1879, by dropping out the exception relating to chancery cases, thus putting all cases, whether at law or in equity, upon the same footing in this respect.

Since the amendatory act of 1879, all cases involving a franchise, freehold, etc., without regard to whether they are chancery or law cases, are required to come directly to this court. It therefore follows, the writ of error from the Appellate to the circuit court was improperly sued out in this case, and that that court failed to acquire jurisdiction to review the decree of the circuit court.

The judgment of the Appellate Court must therefore be reversed, and the cause remanded, with direction to that court to dismiss the writ of error.

Under the circumstances of this case we deem it proper to state there seems to be a misapprehension of the true scope and effect of the decision in the case of Gage v. Perry, 93 Ill. 176. What is there said as to the right of a court of equity, upon a bill to foreclose a mortgage, to consider and pass upon an independent title, unconnected with that under which the mortgagee claims, and which is alleged to be a cloud upon the mortgagee’s title, must be limited to the facts of that case. There the owner of the tax title appeared, and by his answer insisted that he did not claim title under the mortgagor, and that his rights were not subject to that of the mortgagee, and this answer was sustained by the proofs. In the present case no such defence is set up, by answer or otherwise, and the allegations of the bill are admitted by the default to be true.

But suppose the bill showed upon its face that the tax deeds in this case were an independent outstanding title, and that as to them the complainant had a complete remedy at .law, it does not follow the decree should be reversed. It would simply show that there were two good defences to the bill, if insisted on at the proper time and in the legal mode, namely, multifariousness, and that the complainant had a complete remedy at law, yet nothing is better settled than that neither of these defences can be availed of in the first instance, as is sought to be done here, in a court of review. 1 Daniell’s Ch. Prac. 346, note 3; Labadie v. Hewitt, 85 Ill. 341; Henderson v. Cummings, 44 id. 325; Gilmore v. Sapp, 101 id. 297; Stout v. Cook, 41 Ill. 447; Hickey v. Forristal, 49 id. 255; Magee v. Magee, 51 id. 500; Dodge v. Wright, 48 id. 382; Knox County v. Davis, 63 id. 405.

It was not intended by what was said in Gage v. Perry, to at all qualify or infringe upon the well recognized principles of equity law.

Judgment reversed.


text:
    Samuel Wehrly v. Daniel Morfoot.

      Filed at Springfield March 28, 1882

      Rehearing denied June Term, 1882.

    1. Former recovery—of entire and separate demands—as, principal and interest. Where a promissory note, running, according to the face of it, for several years, provides that the interest shall be payable annually, and “if the interest is not so paid the entire principal sum shall immediately become due and payable,” the omission to pay the interest for a given year will not operate to render the annual interest thus accrued and unpaid, together with the principal sum, an entire demand, in any such sense as will preclude a recovery for each year’s interest as it shall accrue, in successive suits therefor.
    2. So where a recovery was had for one year’s interest, under such a contract, it was held the judgment so recovered would not operate as a bar to a subsequent suit for the interest which had accrued in the succeeding year.
    3. Of course, if the prior action had been brought for the principal sum, and the interest which had accrued up' to a particular date, then the recovery therein would bar any further suit upon the note, although it was for less than the amount actually due. 1
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Greene County; the Hon. Albert G. Burr, Judge, presiding.
    Mr. J. R. Ward, for the appellant :
    In this State, on a note like this, the holder can recover the entire principal and interest due thereon in one action, on the first default in the payment of interest, before such note is due and payable in case of no default. Terry et al. v. Trustees, 70 Ill. 237; Ottawa Northern Plank Road Co. v. Murray, 15 id. 337; Carlon v. Kenealy, 12 Mees. & Wels.139; Blakely v. Lawrence, 4 Esp. 147; Siddall v. Rawcliff, 1 Mood. & Rob. 263; Hemp v. Garland, (4 Q. B.) 4 Adol. & Ellis, N. S. 519; Beckwith v. Nott, 2 Cro. Jac. 504; Chitty on Bills, 678; 2 Parsons on Notes and Bills, 252, 394; Streeter v. Streeter, 43 Ill. 165.

      A plaintiff can not- so divide an entire demand or cause of action as to maintain several actions for its recovery. And if he sues and recovers a judgment for a part only of such claim, the remaining portion is barred by that recovery. Camp v. Morgan, 21 Ill. 158; Casselberry v. Forquer, 27 id. 171; Matthias et al. v. Cook, 31 id. 87; Drake v. Ferry, 58 id. 123; Rosenmueller v. Lampe, 89 id. 215; Nickerson v. Rockwell, 90 id. 463; Wagner v. Jacoby, 26 Mo. 532; Pinney v. Barnes, 17 Conn. 428; Avery v. Fitch, 4 id. 364; Hopf v. Myers, 42 Barb. 272; Miller v. Covert, 1 Wend. 489; Firemen’s Ins. Co. v. Cochran, 27 Ala. 237; O’Neal v. Brown, 21 id. 485; Dalton v. Bently, 15 Ill. 421; Gaddis v. Leesem, 55 id. 555.
    ' The principal of these notes was payable, absolutely, ten years after date, or before that period whenever a default in the payment of the interest annually was made. McCarty v. Howell, 24 Ill. 345; Ernest v. Steckman, 74 Pa. St. 13; Jordon v. Tate, 19 Ohio, 586; Walker v. Woolen, 54 Ind. 165; Mattison v. Marks, 31 Mich. 421.
    Mr. Henry C. Withers, for the appellee :
    To constitute a judgment in a former suit an estoppel or bar, it must ajipear that the same subject matter had been passed upon and adjudicated in that suit. Clemens v. Murphy, 40 Mo. 121; Ridgley v. Stillwell, 27 id. 128; Haight v. City of Keokuk, 4 Iowa, 207; Griffin v. Seymour, 15 id. 32; Duncan v. Holcomb, 26 Ind. 379.
    „ When the contract contains two distinct promises to be performed at different times, as, the payment of principal at a given time, and interest annually, a recovery of a year’s interest, .even after the maturity of the note as to the principal, is no bar to a suit for the principal. Badger v. Titcomb, 15 Pick. 413; Cooke v. Wherwood, 2 Saund. 337; Perkins v. Hart, 11 Wheat. 251;, Lord v. Belknap, 1 Cush. 279; Greenleaf v. Kellogg, 2 Mass. 568; Cooley v. Rose, 3 Ind. 221;
      Walker v. Kimball, 22 Ill. 538; Perry v. Harrington, 2 Metc. 368; Rodemer v. Hazlehurst, 9 Gill, 289; Sterner v. Gower, 3 W. & S. 136; Sickles v. Patterson, 14 Wend. 257; Andover Savings Bank v. Adams, 1 Allen, 28; Sparhawk v. Wills, 6 Gray, 163.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an action of assumpsit, brought to recover one year’s interest, alleged to be due on February 3, 1881, on four promissory notes, three of them for $2000 each, and the other for $1600, on the latter of which there was paid on the principal $1150, February 2, 1879. Each one of the notes bore date February 3, 1877, and was payable ten years after date, with ten per cent interest per annum, payable annually, with this provision: “If the interest is not so paid, the entire principal sum shall immediately become due and payable. ” The interest on each note had been paid to February 3, 1879. The defendant pleaded in bar the bringing of a former suit for the one year’s interest which fell due on February 3, 1880, and the recovery, therein of the sum of $659.35. A demurrer to the plea was sustained, and the defendant abiding by his plea, judgment was rendered against him for the amount of the year’s interest due February 3, 1881, which judgment, on appeal to the Appellate Court for the Third District, was affirmed, and defendant appealed to this court.

There is somewhat of ambiguity in the allegations of the plea as to whether they show that the former action was brought for the recovery of the interest, only, due on February 3, 1880, or for the whole principal of the notes and the interest due at that time. Of course, if for the latter, the recovery would be a bar to any further suit upon the notes, although it was for less than the amount due. But construing the averments of the plea most strongly against the pleader, as is proper, we think the fair showing of the plea is, that the former suit was brought for the recovery of the interest, only, due February 3, 1880, and we so treat the plea.

The contention of appellant is, that upon the default in payment of the interest due upon each of the notes on February 3, 1880, the entire principal sum of each note became due and payable by the explicit terms of the note, and that the amount of the principal and the interest due upon each note thereupon became one entire demand and cause of action upon the note; that a plaintiff can not so divide an entire demand or cause of action as to maintain several actions for its recovery, and if he sues and recovers a judgment for a part, only, of such claim, the remaining portion is barred by that recovery. We do not see but what this case is precisely covered by the decision of this court at the last term in Dulaney v. Payne, 101 Ill. 326, which held that where a note is given, payable in one year, with interest payable semiannually, a suit brought two years thereafter for and a recovery of the interest, is no bar to a subsequent action on the note to recover the principal. While there acknowledging the doctrine that a recovery for a part of an entire demand will bar an action for the remainder, we followed the authority of Sparhawh v. Wills, 6 Gray, 163, and Andover Savings Bank v. Adams, 1 Allen, 28, to the effect that judgment for installments of interest on a note would not bar a subsequent action for the principal, although it was due when the former action was commenced, they holding that a promise to pay a debt at one time and the interest at another, was to be construed as containing distinct promises giving several causes of action, and they being several in their origin, no subsequent act could make them one and entire.

Upon the authority of Dulaney v. Payne, the plea was bad, and the demurrer to it was properly sustained.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.