author: Mr. Justice Magruder

text:
    J. Otis Wetherbee et al. v. Simon Fitch.

      Filed at Ottawa May 15, 1886.

    1. Officers of corporation—power to employ counsel to defend suit. Where the by-laws of a private corporation for pecuniary gain make it the duty of its president to exercise a general supervision over its entire business, and provide that all the property of the company shall be under his control, and such president for a number of years before had acted as its attorney, and looked after its affairs in the courts, this will be evidence of his-authority to employ attorneys to appear for the corporation and look after its interests.
    2. Attorney at law—power to compromise suit. The authority of an attorney to prosecute a suit does not involve authority to compromise it. Before he can compromise the suit he must have special authority for that purpose.
    3. Batification—as to act of attorney in compromising suit. Where negotiations by an attorney employed to prosecute an ejectment suit in the name of a corporation, but in fact for the benefit of one of its creditors, for the compromise thereof, were well known to the president and secretary of the company intrusted with its affairs, and they and the attorneys frequently advised as to the suit, and they made no objection to taking a sum in money instead of the land, and the company, after the compromise, accepted the benefit of the settlement in the payment of a part of its indebtedness, it was held, that its conduct amounted to a ratification of the compromise of its attorneys.
    4. Bedemption—by judgment creditor—of the character of judgment under which redemption may be made. If judgment be entered where no indebtedness actually exists, it can not be used for the purpose of effecting a redemption from a judicial sale against the defendant therein.

      5. Where a party indebted by note and mortgage on property of doubtful title, takes for his title, by way of compromise, a less sum than is due from him, which is applied in discharge of the debt pro tanto, leaving a deficiency, and a decree in a proceeding to foreclose is rendered against him for such deficiency, such decree will represent an actual existing indebtedness, and a redemption .made under it will be good..
    6. Where the United States Circuit Court has jurisdiction of a bill to foreclose a mortgage, and pronounces a decree therein, under which property is redeemed,'the State courts will have no power to review its action in respect of any supposed or real errors.
    7. Fraud—submitting cause on stipulation as to facts. If the material facts of a case are undisputed, and counsel on both sides stipulate as to what those facts are, and submit the questions involved for the judgment of the cojirt upon such stipulation, it does not follow from this that there has been a fraudulent collusion between the attorneys, and this more especially when the agreed facts are true.
    Appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Mr. George W. Smith, and Mr. F. S. Winston, for the appellants:
    An attorney has no implied authority to compromise or give up any right of his client. He must show an express authority, founded upon a full disclosure by him. People v. Lamborn, 1 Scam. 123; Nolan v. Jackson, 16 Ill. 272; Jennings v. McConnel, 17 id. 148; Trumbull v. Nicholson, 27 id. 148; Wadhams v. Gay, 73 id. 415; Melvin v. Inswance Co. 80 id. 446 ; Whittington v. Hose, 8 Bradw. 234; Stockton v. Ford, 11 How. 232.
    There was no consideration" for the Fitch decree, and this may be shown collaterally. Martin v. Judd, 60 Ill. 78; Arnold v. Gifford, 62 id. 249.
    There was no debt upon which a deficiency decree should have been entered. The debt was merged. Every judgment is for most purposes to be regarded as a new debt. Freeman on Judgments, sec. 217; Wayman v. Cochran, 35 Ill. 152.
    The city assessment proceedings were not operative. Rich v. City, 59 Ill. 286; Smith v. People, 75 id. 36.

      The condition exacted in 1871 by the city was unwarranted. City v. Barbian, 80 Ill. 482; City v. Shepard, 8 Bradw. 602.
    Messrs. H. S. & F. S. Osborne, for the appellee:
    The sole question and. issue at the present hearing is, was the money decree against the Cook County Land Company, in the United States Circuit Court, under which the redemption was made, void or not. The land company is not. here complaining. Appellants are, for all the purposes of this case, simply the purchasers at the judicial sale made December 13, 1879, and nothing more.
    The appellee is, for all the purposes of this case, the purchaser at a- subsequent redemption sale, who was also the redeeming judgment creditor. McLagan v. Brown, 11 Ill. 519.
    A debtor has the right to confess judgment in favor of his creditor for the purpose of redemption. Phillips v. DeMoss, 14 Ill. 410; Martin v. Judd, 60 id. 78; Karnes v. Lloyd, 52 id. 113.
    The decree of the United States court finding there was an indebtedness for the land company, is conclusive, except for want of jurisdiction or fraud. United States v. Arredondo, 6 Pet, 691; Voorhees v. Jackson, 10 id. 449.
    This court will not, even in a meritorious case, inquire into the proceedings of the Federal courts in the manner here sought, but will remit suitors to that court. Sproehnle v. Dietrich, 110 Ill. 202; Munson v. Harroun, 34 id. 422. .
   Mr. Justice Magruder

delivered the opinion of the Court:

This case has already 'been decided by us, as may be seen by reference to Fitch v. Wetherbee et al. 110 Ill. 475. It is unnecessary to repeat here the facts, stated in the opinion, rendered on the former hearing. After the cause had been remanded for further proceedings to the Superior Court of Cook county, appellants, by leave of that court, filed an amended petition, in which it is charged, that the judgment, under which the redemption took place, was obtained by fraud, and that the facts, constituting such fraud, did not come to the knowledge of appellants, until after the first decision of the case by this court, at the January term, 1884.

The judgment, under which appellee redeemed the tract of land, named in the original petition, to-wit: the north-west quarter of the south-east quarter of section 1, township 39 north, range 14, east of the third principal meridian, in Cook county, from the foreclosure sale, at which the same had been bought by appellants, was rendered, on the 6th day of October, A. D. 1880, by the Circuit Court of the United States for the Northern District of Illinois, in favor of appellee and against the Cook County. Land Company, for the sum of $4908.69, with legal interest from its date. It was not a judgment at law, but a deficiency decree in a foreclosure proceeding. It will be necessary to state the facts, leading up to its rendition,' in order to understand the grounds, upon which it is alleged to be fraudulent, as against appellants.

In September, 1868, Charles A. Gregory and one Allen claimed to own a part of a lot, fronting seventeen and one-half feet on Madison street, in Chicago. Gregory afterwards bought out Allen’s interest. In September, 1868, the common council of Chicago passed an ordinance for opening or extending Franklin street, from Madison street south to Adams street. The required width of this extension necessitated the condemnation, by the city, o.f the seventeen and one-half feet in question. Proceedings were instituted by the city, under the laws then in force, for the purpose of acquiring the fee to these seventeen and one-half feet. The assessment roll, returned by the commissioners of the board of public-works, was confirmed by the council' on September 20, 1869. The net damages, assessed by the commissioners, for the value of the seventeen and one-half feet, were $8589.94, and, for the value of the buildings thereon, $4075,—making a total of $12,664.94. In March, 1872, the city gave notice, that it was ready to pay the $8589.94 to the owners of the property, and, in July, 1872, took possession of the seventeen and one-half feet for a public street, and has since continued in such possession. The city never took possession of the buildings,which were destroyed in the great fire of October 9, 1871. From some time in 1871 down to the spring of 1880, a controversy existed between Gregory and his grantees, on the one side, and the city of Chicago, which claimed under its condemnation proceedings, on the other side, as to the ownership of the seventeen and one-half feet. The proof shows, that, in July, 1871, Gregory tried to get. the city officials to pay him the condemnation money, and they were willing to do so upon his procuring a quitclaim from Allen, and giving the city a warranty deed, which, however, he declined to do. •

On September 3, 1872, Gregory borrowed $15,000 of appellee, giving his note of that date, for the amount, payable five years after date, with interest at the rate of ten per cent per annum, payable semi-annually, and, to secure this note, executed to appellee a mortgage upon the seventeen and one-half feet, providing, that, upon default in payment of interest, the principal might be declared due, which mortgage was recorded September 5, 1872. On November 29, .1872, he conveyed the seventeen and one-half feet to the Cook County Land Company, subject to the Fitch mortgage, which the land company assumed and agreed to pay.

On November 10, 1873, the Cook County Land Company, Gregory acting as its attorney, commenced an ejectment suit in the Superior Court of Cook county against the city of Chicago to recover possession of the seventeen and one-half feet, formerly on Madison street, then a part of Franklin street. This case was tried in the fall of 1876, and a judgment rendered therein on November 4, 1876, in favor of the land company and against the city.

On May 8, 1876, in an action brought in the United States court on the note for $15,000, appellee had obtained judgment against Gregory for $15,907 and costs. On November 13, 1876, appellee, by his solicitors, H. S. & F. S. Osborne, filed a bill, in the United States Circuit Court, against Charles A. Gregory, the Cook County Land Company, the city of Chicago, and others, to foreclose the mortgage for $15,000, which bill, as originally filed, and, as amended, set up the judgment recovered on the note, the conveyance by Gregory to the land company, the assumption by the latter of appellee’s debt, the condemnation proceedings by the city, etc., and alleged, that Gregory had had no title to the seventeen and one-half feet, when he borrowed the $15,000, but had fraudulently represented his title to be' good, in order to get the money, and that appellee had demanded the condemnation money of the city, but that the city had refused to deliver it. The bill prayed, that, if any title passed to appellee by the mortgage, the seventeen and one-half feet might be sold to pay it, but that, if no title passed, the condemnation fund, due from the city, might be charged with the payment of appellee’s mortgage. Answers wére put in by the city, by the land company and by Gregory.

On July 28, 1877, the city paid the costs in the ejectment suit and took a new "trial under the Statute. About this time, Gregory, who was not only the attorney of the land company in the suit at law, and its solicitor in the foreclosure proceeding, but was also its president, authorized Messrs. H. S. & F. S. Osborne to prosecute the ejectment suit, to “see what there was in it for Dr. Fitch. ” They were engaged in negotiations with the city from time to time, in reference to the payment of the condemnation money, the city refusing to pay interest, or the damages awarded for the buildings, and they claiming both. On April 23, 1879, Gregory withdrew his appearance, as attorney for the land company, the plaintiff in the ejectment suit, and Messrs. H. S. & F. S. Osborne. entered their appearance, as attorneys for such plaintiff, by a "written stipulation, filed in the case, and signed by themselves, and by Gregory, and by the attorney for the city. On the same day, the second trial of the suit took place, without a jury, before one of the judges of the Superior Court, who held the.ease under advisement until July 12, 1879, and then found the issues in favor of the city, deciding the title to be in the latter. Before judgment was entered upon the finding of the court, a motion for new trial was made by the land company, and the case stood on such motion, until the settlement, hereinafter mentioned. On April 12, 1880, the land company withdrew its motion for a new trial, and judgment was rendered, in favor of the city, in accordance with the previous finding of the court. The judgment was so entered, in pursuance of a written stipulation, signed by H. S. & F. S. Osborne, as plaintiff’s attorneys, dated April 7, 1880, and filed in the case on April 12, 1880. On April-7, 1880, a written stipulation, entitled in the foreclosure suit, was entered into between H. 8. & F. S. Osborne, as solicitors for Fitch, and the solicitor for the city, by the terms of which the city admitted, that the whole amount of the condemnation money; to-wit: $12,664.94, with interest from August 1, 1872, was due from the city “to whomsoever may appear entitled to receive the same.” The latter stipulation was filed in the United States court, in the foreclosure suit, on May 3, 1880. In other words, Messrs. H. S. & F. S. Osborne settled the ejectment suit by suffering judgment to go in favor of the city, and, in consideration therefor, received an agreement from the city to pay the amount of money and interest, which they had been claiming.

The objection, made by appellants to this settlement, grows out of the apparently inconsistent position, occupied by the Messrs. Osborne, as solicitors for appellee, against the land company in the foreclosure suit, and as attorneys for the land company in the ejectment suit. When, however, all the circumstances of the ease are taken into consideration, it does not appear, that any fraud was committed, or that any wrong was intended.

Gregory owed appellee $15,000, aiid interest from September 3, 1872,—an honest debt, due for borrowed money. To secure it, he had given a mortgage, upon a clouded title, upon seventeen and a half feet of ground, of which the city of Chicago ■ claimed to be the owner. It is not necessary to determine, whether such claim was valid or not. If it had been successfully' maintained, after a contest, the city’s title would have been superior to the title under the mortgage, and appellee would have had no security for his debt, except such unpaid purchase money, as he might obtain from the city. Gregory had conveyed his equity of redemption to the Cook County Land Company, and, as a part of the consideration for such conveyance, that company had assumed and agreed to pay appellee’s mortgage debt. Gregory was a bankrupt. The Cook County Land Company had no money. Under these circumstances, Gregory requested Fitch’s attorneys to take hold of the pending ejectment suit, brought to recover the title to the same property, which had been mortgaged to their client,- and to do so, for the express purpose of making what they could out of it, towards the payment of appellee’s mortgage. Gregory had authority to employ the Osbornes to appear for the land company in the suit at law. For a number of years, he had acted, as its attorney and solicitor, in litigation, pending in .the Federal and State courts. He was the originator and founder of the company, He was its president and authorized representative before the public. By the terms of the by-laws, it was “the duty of the president to exercise a general supervision over the entire business of the company; all the property of the company shall be under his control.” A debtor, holding a claim against a third person, may deliver it into the hands of liis creditor, and authorize suit to be brought upon it, in his own name, for the benefit of such creditor. Such and such only was the real purport of the employment of appellee’s attorneys in this matter.

It is said, however, that the Osbornes had no power to settle the ejectment suit, in the manner already stated, even though they may have been properly empowered to act in it, as the plaintiff’s counsel. It is undoubtedly the law, that authority to prosecute a • suit does not involve authority to compromise it. Before an attorney can compromise a suit, he must have special authority for that purpose. People v. Lamborn, 1 Scam. 123; Nolan v. Jackson, 16 Ill. 272; Jennings v. McConnel, 17 id. 148; Trumbull v. Nicholson, 27 id. 149; Melvin v. Lamar Ins. Co. 80 id. 446. But, in this case, it is a fair conclusion from all the evidence, that the company and its officers authorized the settlement, as made, and ratified it, after it was made. For several years, the Osbornes were negotiating with the city with a view of getting payment for the value of the buildings, as well as the value of the land taken, and, also, with a view of getting interest upon the whole amount to be paid. These negotiations were well known to Gregory, the president, and Watriss, the secretary of the company. They had conversations about them with the Osbornes, and were kept advised about them, during their progress. They made no objections to taking money, instead of land. What they were “solicitous” about was to have the city pay the whole amount of the condemnation money and interest, instead of a part of such money without interest. After the settlement was made, they knew, that judgment in the ejectment suit had been rendered in favor of the city, and that the condemnation money was to go to appellee. They may not have known the details of the settlement. They may not have seen the written stipulation, in which the Osbornes withdrew the motion for a new trial, and conceded the title to the city. But they must have known, that all this was involved in the payment of the condemnation money by the city. The acceptance of such money by the land company and its mortgagee estopped them from thereafter attacking the tjtle of the city. To take the fund and continue the fight for the land would not have been honest. Therefore, the knowledge,. that the city had paid the .money, necessarily implied the further knowledge, that the city had obtained the title, for which such payment was made. That the president of the company ratified and approved of the settlement will fully appear, when we come to consider the agreed statement of facts, filed in the foreclosure suit.

We have thus dwelt upon the manner, in which the ejectment suit was disposed of, because it has a bearing upon what afterwards took place in the foreclosure suit. The latter was brought to a hearing, and-final decree was entered therein by the United States court on October 6,1880. The evidence was presented to the court in the form of an agreed statement of facts, reduced to writing, and signed by Gregory, for himself, and as solicitor of the Cook County Land Company, and by H. S. & F. S. Osborne, as solicitors for Fitch. This statement sets forth the execution of the note and mortgage for $15,000 ; the condemnation proceedings and amount of damages, therein awarded; the conveyance by Gregory to the land company, and its assumption of the mortgage debt and agreement to pay it; the judgment for $15,907 against Gregory; the agreement of the city, that there is due from it to the person entitled thereto, for condemnation money, $12,664.94,- with interest from August 1, 1872, and the bankruptcy of Gregory and his discharge therefrom. The statement also sets forth, that “the ejectment suit is now in judgment in favor of the city, * * * and the title to the land is now, by such judgment, vested in the city, leaving in its place the condemnation money in the hands of the city treasurer. ” Gregory, to whom this statement was submitted before July 26, 1880, was thereby informed of the judgment and of the city’s title to the property. That judgment, entered on April 12, 1880, refers to the stipulation of April 7, 1880, withdrawing the motion for a new trial, and consenting to the entry of judgment for the city. The statement also refers to the other stipulation of April 7, 1880, between the Osbornes and the counsel for the city, -as to the amount to be paid by the city, in these-words: “By stipulation on the part of the city on file in this cause. ” This goes to show, that there' was no concealment of the stipulations, and that the attention of the president of the company was expressly called to them.

The agreed statement of facts also contains these words: “Nothing herein contained is intended to operate to deprive the complainant of any * * * right he may have to the condemnation money, * * * and no facts are insisted upon by this defendant, which would deprive him of such money. ” Thus, the president of the company not only knew, that the city had the title, and. was ready to pay the condemnation money, but he was willing to have that money applied to the payment of appellee’s debt.

After the hearing of the foreclosure suit upon the pleadings and agreed statement of facts, the judge of the Federal court took the case under advisement, and finally entered a decree, as of October 6, 1880. This decree found, that there was due to appellee, upon his mortgage debt, $23,789.98, from the land company; that there was due, from the city, $18,881.29, as condemnation money, and that the amount so due, should be paid to appellee upon his mortgage debt, “as the proceeds of said mortgaged premises and interest thereon; ” that the difference between the two sums, to-wit: $4908.69, being the deficiency, or balance due appellee, over and above the amount coming from the city, should be paid to the appellee by the land company, and that execution should issue therefor. This deficiency decree, under which the redemption, complained of, took place, is alleged to be fraudulent, for the reason, that the seventeen and one-half feet of ground were worth $35,000'in.April, 1880, and, if the title thereto, instead of being yielded to the city, had been recovered for the land company in the ejectment suit, the mortgage of appellee would have been paid in full, and no deficiency would have existed. It is true, that, if a judgment be entered, when no indebtedness actually exists, such judgment can not be used for the purpose of effecting a redemption. (Martin v. Judd, 60 Ill. 78; Arnold et al. v. Gifford, 62 id. 249.) But we have already seen, that the settlement of the ejectment suit was duly authorized and fairly and properly made. This being so, and the amount realized from such settlement being insufficient, by the sum of $4908.69, to pay off the full amount, due on the mortgage,. it follows, that the deficiency decree, in this case, does represent an actually existing indebtedness.

It is said, that the deficiency was made larger than it ought to- have been, because the decree wras rendered for the amount of the original indebtedness, and ten per cent interest thereon, whereas it should have been rendered for $15,937.16,—the amount of the judgment, rendered against Gregory on May 8, 1876, and six .per cent interest thereon. This is a matter, wdiich was fairly submitted to the court, which rendered the decree. That court had jurisdiction over the subject matter and the parties, and we have no pownr to review its action.

The deficiency decree is alleged to be fraudulent, as having been obtained by collusion between the solicitors of appellee and the solicitor of the land company. The only ground for this charge is the fact, that the cause was submitted for hearing upon an agreed statement of facts,, and not upon proofs taken. If the material facts in a case are undisputed,' and the counsel on both sides stipulate, as to what those facts are, and submit the questions involved, for the decision of the court, upon such stipulation, it does not necessarily follow, that there has been a fraudulent collusion. In this case,-all the facts, set up in the agreed^statement, are true, nor is it claimed, that any of them are untrue. But, in addition to this, the statement shows, on its face, that the solicitor of the land company did not consent to a deficiency decree, but was ■ opposed to it. After referring to the prayer of the bill for a deficiency judgment, he inserted in the statement, in his own handwriting, the following words: “And the right to resist such judgment upon all legal and equitable defences is hereby' reserved to the said Cook County Land Company.”

We fail to see, that any trust relation existed between appellee and appellants, which made it inequitable for appellee to redeem under his deficiency decree. Appellants were purchasers of certain property, belonging to the Cook County Land Company, at a sale under a decree, rendered in a certain foreclosure proceeding, instituted against that company. That sale, as we have decided, was subject to redemption, under the statute, by the land company, during twelve months, after it was made, and by judgment creditors of the land company, during the three months after the expiration of the twelve months. Appellee was such a judgment creditor, as is contemplated by the statute. He exercised his statutory right, and effected a redemption, and obtained a deed from the marshal, in pursuance thereof.

We see no reason to change our former decision. The judgment of the Superior Court is, therefore, affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Scholeield

license: Public Domain

text:
    Jr. John H. McMillan et al. v. Cyrus H. McCormick, Jr.

      Filed at Ottawa May 15, 1886.

    1. Limitation—act of 1873—prospective, only. The limitation law of 1872 was not designed to apply to preexisting causes of action, which were limited by other acts then in force. As to matters not named in any previous statutes of limitation, that act must be applied.
    2. On November, 18, 1868, a debtor gave a mortgage on land, containing a power of sale on default of payment, to secure a note of $20,000, payable in two years, with seven per cent interest. On October 3, 1884, the trustee advertised the property to be sold on November 8,1884, on which last named da)' a bill was filed to enjoin the sale, on the ground that the right to fore-' close by sale was barred by section 11 of the Limitation law of 1872: Held, that the rights of the parties were not affected by the act of 1872, but were governed by the laws in force when the mortgage was given.
    3. The fact that the words “mortgages and deeds of trust” do not occur in any act of limitation prior to the act of 1872, does not exclude them from the operation of the saving clause in section 24 of that act, in favor of causes of action which had accrued before the act of 1872 took effect. The statute which bars the debt, can alone bar the mortgage given to secure it. The debt is the principal thing,—the mortgage but the incident.
    4. Release oe mobtg-age—rights of purchaser of equity of redemption. A person acquiring the equity of redemption to a part of mortgaged premises, by sheriff’s sale, can not complain that other parts of the premises were released from the mortgage by the trustee, if it was done before his rights attached, or even if after his rights attached, if done without actual notice of them.
    5. Same—requisites'of bill by such purchaser to enjoin sale of part not released. A purchaser of a part of mortgaged premises under execution against the mortgagor, sought' by bill to enjoin a sale of the same under a power in the mortgage, on the ground that the trustee had released a large and valuable portion of the lands mortgaged, other than that bought by the complainant, but the bill failed to show when such release was made: Held, that the bill was deficient in failing to show facts entitling the complainant to the relief sought.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    Mr. Egbert B. Kendall, for the appellants:
    In 1872 the legislature of this State for the first time enacted a law limiting the time within which a mortgage or trust deed might be foreclosed. (Rev. Stat. chap. 83, sec. 11.) Prior to this statute the rule in- equity was, that when an action for the debt became barred, the right to foreclose a mortgage securing the same was also barred. Pollock v. Maison, 41 Ill. 516; Locke v. Calchvell, 91 id. 417; Emory v. Keighan, 94 id. 543.

      The general rule is, that the Statute of Limitations in force when the suit is begun governs the case. (Wood on Limitations, sec. 12; 2 Parsons on Bills, 226.) This rule has been followed by the Supreme Court of this State, subject, however, to the proviso, that the whole period prescribed by the statute shall have run against the right or cause of action after the statute became operative. Tufts v. Rice, Breese, 64; Rinehart v. Schuyler, 2 Gilm. 473; Bruce v. Schuyler, 4 id. 221.
    This rule of construction, with the proviso above mentioned, prevails in the Supreme Court .of the United States. Sohn v. Waterson, 17 Wall. 596.
    Statutes of limitation should receive a favorable construction. Wood on Limitations, sec. 4; Bell v. Morrison, 1 Pet. 360.
    The legislature evidently intended by this new-Statute of Limitations to establish a strict and definite bar to all foreclosure proceedings.
    Section 24, of the act of 1872, has reference only to the repealed statutes, and merely saves the rights, etc., that were subject to the provisions of those .statutes. The mortgage section (11) being an entirely nfew provision,—no limitation upon the right of foreclosure having been included in the repealed statutes,—it necessarily follows that the saving clause can have no reference tó that section. Gridley v. Barnes, 103 Ill. 211; Hyman v. Bayne, 83 id. 256.
    A bill lies at the suit of the mortgagor, his vendee, or by any one interested, to have a mortgage cancelled as a cloud on the title after it is barred. Story’s Eq. Jur. secs. 698, 700, 701; Jones on Mortgages, secs. 1, 214.
    It matters not whether the plaintiff, in a bill quia timet, are in possession or not, and it is not necessary that the bill should contain any averments as to possession. Fox v. Blossom, 17 Blatch. 356; Martin v. Graves, 5 Allen, 601; Booth v. Wiley, 102 Ill. 34; Gage v. Parker, 103 id. 528; Haworth v. Taylor, 108 id. 275; Redmond v. Packenham, 66 id. 434.

      Messrs. Jenkins & Bareness, for the appellee:
    Apjiellants can ask nothing on account of property released from the trust deed, because they do not pretend they were made after the judgments under which they claim were recovered. Edgington v. Heffner; 81 Ill. 341.
    • Even if such release had been made after the date of their judgments, actual notice of their interests must have been given to the holders of the trust deed, or they can ask no credit for the released property. Jones on Mortgages, sec. 723; Iglehart v. Crane, 42 Ill. 261.
    The saving clauses in repealing acts continued in force the limitation laws existing prior to 1872;'and the period necessary to bar the note and trust deed was therefore at least sixteen years. Laws 1872, chap. S3, sec. 24; Laws 1874, (Myers’ ed.) 355, being section 2 of the repealing act; Dickson v. Railroad Co. 77 Ill. 331; Garrison v. People, 87 id. 96; Gibbon v. Goodrich, 3 Bradw. 590; Smart v. Morrison, 15 id. 226; Means v. Harrison, 114 Ill. 248.
    The debt is the principal thing,—the mortgage the mere incident. The position of appellants, that the mortgage is barred when the debt is not, is illogical, and without the support of authority. So long as an action may be maintained on the debt, the right to foreclose exists. Harris v. Mills, 28 Ill. 44; Pollock v. Maison, 41 id. 516; Midley v. Elliott, 62 id. 532; Flower v. Ellwood, 66 id. 438; Darst v. Bates, 95 id. 493; Clinton County v. Cox, 37 Iowa, 570; Ewell v. Daggs, 108 U. S. 143; Hogan v. Parsons, 67 Ill. 170; Priest v. Wheelock, 58 id. 114.
    The right of mortgagor and mortgagee to foreclose and to redeem being mutual, reciprocal and commensurable, it follows that if the mortgage of appellee were barred, any rights which • appellants, being out of possession, would have to redeem would also be barred. Locke v. Caldwell, 91 Ill. 417.
    . The limitation section as to mortgages'in the act of 1872, relied on by appellant’s counsel, was not “an entirely new provision, ” as he asserts. Bev. Stat. 1845, secs. 6, 7; Laws of 1849.
    The case at bar is entirely distinguished from Hyman v. Bayne, 83 Ill. 256, and Gridley v. Barnes, 103 id. 216.
    Mr. W. T. Burgess, also for the appellee.
   Mr. Justice Scholeield

delivered the opinion of the Court:

Henry H. Walker executed a mortgage, with a power of sale, on the 18th day of November, A. D. 1868, to Gerhard Foreman, to secure the payment of a promissory note for $20,000, with interest at the rate of seven per cent per annum, payable two year-s after that date. Appellant Thomson purchased a part of thé land included in the mortgage, at a sheriff’s sale, under a judgment rendered on the 14th day of September, A. D. 1874, and appellant McMillan.purchased another part of the land included in the mortgage, at a sheriff’s sale, under a judgment rendered in July, A. D. 1875. On the 3d day of October, A. D. 1884, the trustee advertised that the land would be sold on the 8th day of November, A. D. 1884, pursuant to the power in the mortgage, for the payment of the indebtedness thereby secured. This bill was filed on the last named day to enjoin that sale.

The principal ground relied on is, that the time when the sale is advertised to be made is more than ten years after the right to make the sale accrued, and that the sale is therefore barred by the 11th section of the act in regard .to limitations, in force July 1, A. D. 1872. That section is: “No person shall commence an action or make a sale to foreclose any mortgage, or deed of trust in the nature of a mortgage, unless within ten years after the right of action or right to make such sale accrued. ” The 24tli section of the same act, however, after repealing the several acts in regard to limitations previously in force, concludes thus: “But this section shall not be construed so as to affect any rights or liabilities, or any cause of action, that may have accrued before this act shall take effect. ” (2 Gross’ Stat. 1873, pp. 258, 259.) In the revision of 1874 this section is omitted, and in chapter 131, section 5, the former statutes of limitations are repealed, with this saving clause: “When any limitation law has been revised by this or the Twenty-seventh General Assembly, and the former limitation law repealed, such repeal shall not be construed so as to stop the running of any statute, but the time shall be construed as if such repeal had not been made. ” In Dickson v. Chicago, Burlington and Quincy Railroad Co. 77 Ill. 331, we held that the above words, “this section,” should be construed to mean, “this act, ” so that the section would read, “but this act shall not be construed so as to affect any rights or liabilities, ” etc. In Means et al. v. Harrison, Exr. 114 Ill. 248, we held that a promissory note executed on January 25, A. D. 1872, payable two years after date, was not, on the 15th day of October, A. D. 1884, when suit was brought, barred by the 16th section of this act, which requires that actions on promissory notes shall be commenced within ten years next after the cause of'action accrued, but that the case was governed .by the act of the 5th of November, A. D. 1849, which was in force when the note was executed. It was, among other things, there said, after construing the saving clause to the effect that it extended to notes that had been executed but which were not yet due when the act took effect: “This construction is in accord with the general rule that a statute is to operate in futuro only, and it is not to he construed to affect past transactions, and that if it is left doubtful what was the real design as to its having a prospective or retroactive effect, the statute must be so construed as to have a prospective effect only. Thompson v. Alexander, 11 Ill. 55; Dobbins v. National Bank, 112 id. 553.”

It is conceded that that case would be conclusive on the question of limitation here, had mortgages been specifically named in any preceding limitation act, but it is contended they are not so named, and therefore the case is governed by Hyman v. Bayne, 83 Ill. 256, and Gridley v. Barnes, 103 id. 216, where it was held that the construction given in Dickson v. Chica go, Burlington and Quincy Railroad Co. supra, to the same clause of section 24, was applicable only to cases included in previous limitation acts, but that it did not apply to cases not included in such acts, and therefore, as to such cases, the periods of limitation specified in the act in force July 1, 1872, must be applied. It is true the words, “mortgages and deeds of trust, ” do not occur in any act of limitation previous to that in force July 1, 1872; but this court has held that such instruments were' barred by limitation laws previously to the act on that subject adopted in 1849, and by that act, since its adoption, both in proceedings in equity and in actions at law.

Where there is a covenant in the mortgage or deed of trust for the payment of the debt, which is perhaps rarely the case, it can need no argument to show that the instrument would be in nowise, so far as affects this question, different from any others specially for the payment of money, and therefore the statute of limitations applicable to instruments of that character in general, would be applicable to it. But as to mortgages or deeds of trust which are not given as being themselves obligations for the payment of debts, but simply as pledging property for the payment of debts evidenced in some other way, a different .question is presented.

In Harris v. Mills et al. 28 Ill. 44, it was held, in a proceeding to foreclose a mortgage, that where the note for the security of which the mortgage was given is barred by the Statute of Limitations, so that there could be no. recovery thereon in an action at law, the right to foreclose is also barred, and this was said to be because it is held that the debt is the principal thing, and the mortgage is but the incident. The consideration which supports the note supports the mortgage. An assignment of the note operates ipso facto to transfer the mortgage, and a payment, release or other discharge of a note satisfies and releases the mortgage.

In Pollock et al. v. Maison et al. 41 Ill. 516, ejectment was brought by a grantee of the mortgagee against the heirs at law of the mortgagor, and it was there held that the debt secured by the mortgage being barred, there could be no recovery. The court, among other things, said: “The notes were barred by the statute at the expiration of sixteen years after their maturity, and the bar to the debt having become complete; plaintiff in error had a right to interpose that bar to prevent a recovery in ejectment.” Of course the ejectment was not a suit for foreclosure, but' it was a legal mode of enforcing rights of the mortgagee under the mortgage, and if the mortgage was not barred at law, the mortgagee was entitled to recover. The case shows that the Statute of Limitations of sixteen years was held a good defence in an action at law on a mortgage given to secure the payment of a promissory note.

In Medley et al. v. Elliott et al. 62 Ill. 533, the above cases were cited with approval, and in discussing what period of. limitation applied in that case, it was said, after quoting from Chancellor Kent’s opinion in Jackson v. Willard, 4 Johns. 40: “Until foreclosure, or at least until possession taken, the mortgage remains in the light of a chose in action. It is but an incident attached to the debt, and in reason and propriety it can not, and ought not, to be detached from its principal. The mortgage interest, as.distinct from the debt, is,,not a fit subject Of assignment. It has no determinate value. If it should be assigned, the assignee must hold the interest at the will and disposal of the creditor who holds the bond. ” It was added: “It naturally follows that the Statute, of Limitations, which bars the debt, the principal, can alone bar the' mortgage, the incident. ” Emory v. Keighan et al. 88 Ill. 482, and the same ease again in 94 Ill. 482, was ejectment, and follows Pollock v. Maison, supra.

Other cases of like character might be referred to, but it is unnecessary. This is sufficient to show that before the enactment of the section under consideration it was the settled law of this State that mortgages were, within the Statute of Limitations, and barred thereby. The ruling assumed that it is not necessary that the word “mortgage,” or “deed of trust” shall be expressed in the statute; that when .the principal thing is named, that which is incident to it is necessarily implied, and that inasmuch as the mortgage or deed of trust is but an incident to the debt, and can have no existence as an obligation or conveyance independently of the debt,—or, in other words, that as it is merely an aid or instrumentality in the collection of the debt,—any proceeding through or by means of it is just as much intended by the statute as actions of debt, covenant or assumpsit. And hence when it was enacted the debt was barred in sixteen years, it was meant and intended the mortgage, or deed of trust securing it, was also, by the same words, barred in sixteen years. In naming the principal thing its incident is included. We feel constrained, therefore, to hold that the case is not analogous to Hyman v. Bayne, and Gridley v. Barnes, supra, and that in principle it is not distinguishable from Means v. Harrison, supra.

There is an allegation in the bill “that a large and valuable portion of the lands conveyed by said trust deed, other than the lands of the complainants, has been released by said trustee.” When this was done is not alleged. If it was done before the rights of complainants attached, it is plain that it does not concern them. If it was done since their rights attached, but without actual notice of them, they are not entitled to complain. (Iglehart v. Crain, 42 Ill. 261.) It was incumbent on the complainants to affirmatively allege a state of case entitling them to relief.

We perceive no cause to disturb the judgment of the Appellate Court. It is affirmed.

Judgment affirmed,.


author: Per Curiam :

text:
    Edward D. Tucker v. The People of the State of Illinois.

      Filed at Ottawa May 15, 1886.

      1. Bigamy—sufficiency of indictment. An indictment charging the defendant with having married in this State one who then became his lawful wife, and afterward, in another State, unlawfully marrying another woman while yet the lawful husband of the first, never having been divorced from her, and she being then living, and that he afterward unlawfully cohabited with the last woman in this State, is sufficient to show a case of bigamy, under our statute.
    2. Same—proof of second marriage—admission of defendant. Where an indictment for bigajny charges the second marriage to have been made in a certain other State named, and subsequent cohabitation with the second wife in this State, the admission of the defendant that he had married her, is not sufficient proof of the marriage in such other State, which is necessary to be proved as charged; nor is such admission sufficient evidence of a marriage in this State.
    3. Same—certified copy of certificate'of marriage, to prove marriage. On the trial of one for bigamy, the prosecution, to prove the second marriage in another State, offered in evidence a certificate of a clerk of the district coart of such State that there was in his office a record of a marriage license and certificate of marriage, giving a copy thereof, to which was attached a certificate of the judge of the court that the clerk’s attestation was in due form, which the court admitted, over the defendant’s objection: Held, in the absence of proof that such entries were required to be kept by some law of the State from which the)7 came, the certificate and exemplification were not admissible in evidence.

      i. Evidence—registers of births and marriages. Registers of births and marriages made pursuant to the statutes of any of the United States, are competent evidence; but when not made under the sanction of law and official duty, they are not evidence.
    Writ of Error to the Circuit Court of Kankakee county; the Hon. Alfred Sample, Judge, presiding.
    Mr. Daniel H. Paddock, for the plaintiff in error:
    Courts of one State can not take judicial notice of the laws of another State. Tinkler v. Cox, 68 Ill. 119; Mason v. Walsh,
      Breese, 39; Crouch v. Hall, 15 Ill. 264; Merritt v. Merritt, 20 id. 65; Noes v. Van Alstyne, id. 210; State v. Palmer, 18 Vt. 570; People v. Lambert, 5 Mich. 349; Bird Commonwealth, 21 Gratt. (Va.) 800.
    A record must come from a proper repository,—a repository provided by the laws of that State. Greénleaf oh Evidence, 486.
    A record from a foreign State will not he admitted until it is proven that the record is authorized. Bryant v. Keton, 1 Texas, 434; Roscoe’s Crim. Evidence, 321, ed. of 1854.
    There must he a marriage in fact proven. (Nuberg v. State, 25 Wis. 370.) The fact of marriage must be established. Commonwealth v. Littlejohn, 15 Mass. 162; State v. Russell, 6 Conn. 448; Lambert v. People, 5 Mich. 349; Case v. Case, 17 Cal. 598; People v. Humphrey, 7 Johns. 598; Graham v. People, 1 Park. Cr. 378; People v. Hennessy, 15 Weird. 148.
    The validity of a marriage depends on the law where made. Where the charge is marriage in one State and cohabitation in another, and indictment is for unlawful cohabitation by reason of the unlawfulness of the marriage, must aver and prove marriage unlawful where contracted. State v. Palmer, 18 Vt. 570; 1 Camp. 61; People v. Lambert, 5 Mich, 349; Rex v. Frazer, 2 R. & M. 407; Bishop on Statutory Crimes, title “Poljgamy. ”
    If it is not shown marriage is unlawful where contracted, then prisoner must be acquitted. People v. Mosher, 2 Park. Cr. 195; State v. Palmer, 18 Vt. 570.
    Statutes of other States can not be offered in evidence unless they be exemplified under the act of Congress, or unless they are published by due authority, as provided by the statute of our State. Eagan v. Conolly, 107 Ill. 458; Louisville v. Shires, 108 id. 617; Lafayette Bank v. Stone, 2 id. 424; Sisk v. Woodruff, 15 id. 15; Greenleaf on Evidence, 4863, 478.
    When A marries B, and during B’s life marries C,- and during C’s life marries D, the last marriage is not bigamous as to the second marriage, because the. second marriage is void. Halbrook v. State, 34 Ark. 511.
    Mr. H. L. Richardson, State’s Attorney, for the People:
    Counsel cites Greenleaf on Evidence, 486, to the effect that a record must' be shown to have come from a proper repository, to make it evidence. This may be true, but by the act of Congress, when records are properly authenticated they are bound to be admitted as evidence, if pertinent to the issue.
    The admission of defendant that he had .-married Mary E. Markham, was sufficient evidence of the second marriage, independently of the record evidence.
    Under section 29 of the Criminal Code, the statute provides that “it shall not be necessary to prove either of the marriages by the register or certificate thereof, or other record evidence, but the same may be proved by such evidence as is admissible to prove a marriage in other cases.” Jackson v. People, 2 Scam. 232; Miner v. People, 58 Ill. 60; Bergen v. People, 17 id. 426.
    In other cases, marriage may be proved by cohabitation, by introducing as his wife, holding out to the world as his wife, joining in deeds, and admitting a marriage, 'etc. It is wholly immaterial, under our statute, where the parties were married, if they continue to cohabit together as man and "wife in this State.
   Per Curiam :

This was an indictment for bigamy, upon which the defendant was convicted, and sentenced.to two years’ imprisonment in the penitentiary, and to pay a fine of $500. The indictment charged, that the defendant, on the 15th day of April, 1872, in Cook county, Illinois, married one Mary I. Bennett, who then became his lawful wife; that afterwards, on the 19th day of September, 1883, at St. Paul, in the county of Ramsey, in the State of Minnesota, he unlawfully married one Mary E. Markham, while the defendant was yet the lawful husband of the said Mary I. Bennett-, never having been divorced from her, and she being then living; and that afterwards the defendant did unlawfully cohabit with the said Mary E. Markham, in the county of Kankakee, in this State. The charge makes the offence, under our statute.

Proof was made of the previous marriage to Mary I. Bennett, in this State. Objection is made that there was not competent proof of the marriage to Mary E. Markham in Minnesota, or that such marriage was, by the law of Minnesota, unlawful. To prove the alleged marriage in Minnesota, there rvas introduced in evidence a certificate, under the hand and seal of the clerk of the District Court of the Second Judicial District of Minnesota, that there was in such office a certain record of marriage license and certificate, -whereof the marriage license and certificate is in the words and figures following, to-wit, (showing a marriage license and certificate of a clergyman that on the 19th day of September, 1883, at St. Paul, in the State of Minnesota, he joined in marriage the defendant and Mary E. Markham.) There was the accompanying certificate of the judge, that the attestation of the clerk was in due form. There was no evidence whatever of any law or usage of Minnesota upon the subject. "We have - a statute making the register of marriages in this State evidence of a marriage. It not only does not appear that there is any such statute in Minnesota, but it does not appear that by the laws of Minnesota there is any provision for the keeping of a register of marriages. It is laid down in 1 Greenleaf on Evidence, sec. 484, that registers of births and marriages made pursuant to the statutes of any of the United States, are competent evidence. It is because of their being made by public authority and under the sanction of official duty, that they, and exemplified copies of them, are received in evidence. It does not appear that the registry in question •was made by any such authority or sanction, it appearing, merely, that there were in the clerk’s office such a marriage license and certificate of marriage, copies of which were given. We are inclined to hold there was error in admitting the certificate of the register in evidence.

It is contended that the second- marriage was otherwise proved by the admission of the defendant. His admission, as testified to, was, he said he had married Mary E. Markham. This was not evidence of the place of the marriage,— that it wras in Minnesota, as charged in the indictment,—and which charge, we think, made it necessary to prove that the second marriage was in Minnesota.

There is a further count in the indictment alleging the second marriage to have been in this State; but the admission equally fails to prove this allegation.

For the error indicated, the judgment will be reversed and the cause remanded.

Judgment reversed.


author: Mr. Justice Craig

text:
    William H. Todd v. Mary A. Todd.

      Filed at Springfield May 14, 1886.

    1. Limitation—sufficiency of proof of adverse possession. The Statute of Limitations was set up in defence of a bill for partition between two tenants in common, and the only evidence as to the defendant’s possession was, that at the time of taking the complainant’s deposition, one L., a tenant under defendant, was occupying the premises, and there was a dwelling house, barn, out-houses and fencing on the land; but how long defendant had been in possession, and its character, or whether adverse, did not appear; Held, that such evidence failed entirely to establish such an adverse holding as to bar a recovery.
    2. Same—sufficiency of admission of adverse possession. A bill for partition of land by one tenant in common against the other, charged that defendant had had the use and received the rents upon the land from 1869 to 1881, both years inclusive, and also for previous years, and had collected a large amount of rent, which was sought to be charged to defendant, with interest: Held, that conceding such allegation to be an admission binding on complainant, it fell far short of establishing twenty years’ possession of the land, or that the possession was adverse.
    3. Same—between tenants in common—character of possession. To make the Statute of Limitations a bar as between tenants in common, it "is not sufficient that the one continues to occupy the premises and appropriates to himself the exclusive rents and profits, makes light improvements, and pays the taxes. To constitute a disseizin there must be outward acts of exclusive ownership of an unequivocal character, overt and notorious, and of such nature as by their own import to .impart information, and give notice to the co-tenant that an adverse possession and an actual disseizin are asserted.
    4. The possession of one co-tenant will not be adverse to the other where there is a mere possession of the premises and an appropriation of the rents, for all this may be consistent with the continued recognition of the rights of the co-tenant. Such possession must amount to a disseizin or ouster of the co-tenant before it will be regarded as adverse.
    Writ of Error to the Circuit-Court of Moultrie county; the Hon. C. B. Smith, Judge, presiding.
    Mr. John B. Eden, and Mr. C. C. Clark, for the plaintiff in error:
    The evidence fails to show when the premises became first occupied by any one. As long as they were vacant the parties having the legal title are deemed in possession for all purposes, in defence or protection of their rights. Brooks v. Bruyn, 18 Ill. 539.
    The possession by one tenant in common is that of all. Bracken v. Cooper, 80 Ill. 221; Ball v. Palmer, 81 id. 370.
    To constitute the disseizin of a co-tenant, there must be outward acts of exclusive ownership, of an unequivocal character, overt and notorious, and of such a nature as by their own import to impart information, and give notice to the co-tenant that an adverse possession and an actual disseizin are intended to be asserted against him. Ball v. Palmer, supra.

      Possession, to create a bar under the limitation laws, must be adverse. Winters v. Haines, 84 Ill. 585; Stevens v. Wait, 112 id. 550; Bush v. Huston, 75 id. 344.
    When possession is relied on for any legal purpose, in the absence of paper title it must be an actual and not a constructive possession. City of Champaign v. McMurray, 76 Ill. 353.
    Mbssrs. Mouser & Spitler, for the defendant in error, contended that there was sufficient proof of outward acts of exclusive ownership in the answers of complainant to interrogatories sixteen and seventeen of his deposition and the charges in his bill.
    As to the limitation between tenants in common, counsel cited and commented upon Lavalle v. Strobel, 89 Ill. 384; Doe ex dem. v. Prosser, 1 Cowp. 217; Goewey v. Urig, 18 Ill. 238.
    Counsel also contended that the improvements put upon the premises by defendant, and her payment of all taxes for. so long a time, afforded unequivocal evidence 'and notice of an adverse and exclusive claim.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill brought by Whlliam H. Todd, the plaintiff in error, against Mary A. Todd, to partition a certain quarter section of land in Moultrie county. John Todd entered the land in the year 1854, and a patent issued to him on the first day of May of that year. On the 27th day of the following November, Todd died intestate and without issue, leaving as his heirs a widow, Mary A. Todd, a father and mother, one sister and one brother, William H. Todd. Since the death of John Todd, his father, mother and sister have died, leaving the complainant as their sole heir.

From this statement of facts, which seems to be conceded on both sides; it is apparent that the complainant would be entitled to an undivided one-half of the land, subject to the dower rights therein of Mary A. Todd, unless something has occurred since the death of John Todd to deprive him of the title which descended to him under the statute, or to bar his right of action. In the answer, the defendant, Mary A. Todd, sets up as a defence to the case made in the bill, that since the death of her husband she has, by her agents and tenants, held possession of said tract of land, improved the same, and paid all taxes and assessments thereon, and she invokes the Statute of Limitations as a bar to a recovery.

It is not claimed in the argument that the defendant made out a case under what is known as the Limitation act of 1835 or 1839, but it is contended that the defendant was in the adverse possession of the premises for over twenty years before the filing of the bill, and upon this ground the action was barred. The record before us contains but little evidence bearing upon the question. It will all be found in the answer of the witness W. H. Todd to interrogatories Nos. 16 and 17, as follows:

Sixteenth interrogatory—“State if you know who occupies the land in controversy in this suit, and upon what tenure he holds.
Answer—“The man who lives on the land or rents it is named Nelson Lemmon. He is the tenant by arrangement with William G. Patterson, who claims to be the agent of Mary A. Todd, the defendant in this case.
Seventeenth interrogatory—“State, if you know, what improvements are on the land.
Answer—“A story-and-a-lialf frame,dwelling house, a small barn or stable, and some other out-buildings and fencing.”

Giving this testimony all the weight that it is entitled to receive in any court, it merely establishes the fact that the defendant was in the possession of the premises at the time the deposition of the witness was taken, by or through a tenant, and that there is a dvrelling house, barn, out-houses and fencing on the land. How long the defendant had been in the possession of the premises, or whether that possession was adverse to the complainant in the bill, is not disclosed. So far, then, as evidence is concerned, it must be conceded that the defendant failed entirely to establish such an adverse holding as would bar a recovery.

The complainant, in the bill of complaint, made the following allegation:. “Orator further charges that said defendant, Mary A. Todd, has had the use and occupation and has collected the rents upon said land from A. D. 1869 to A. D. 1881, both years inclusive, and also for previous years, and has collected a large amount of rent; but the precise amount is unknown to your orator, and has had the use of said money for many years, and orator alleges that she ought to account to orator and said William H. Walker for the' rents so collected, and reasonable interest thereon; and orator says that said parties are entitled to have said land partitioned.” And it is insisted that this averment in the bill, in connection with the evidence, supra, is sufficient to establish an adverse possession of the premises for twenty years. This allegation, conceding it to be an admission which binds the complainant, falls far short of establishing twenty years’ possession of the land, or that the possession was adverse; Possession of the premises from 1869 to 1881, both years inclusive, would not constitute twenty years’ possession, nor will the other language used, “for previous years, ” under any fair construction render the allegation sufficient to meet the object contemplated by the defendant. It may be asked how many years, under the averment, did the defendant occupy the premises prior to 1869 ? If she occupied in 1867 and 1868, that might, under the allegation, constitute previous years, and yet it would riot be sufficient. But however this may be, the allegation contains nothing under which it can be held that the possession of the defendant was adverse. The possession of one co-tenant will not be adverse to the other where there is a mere possession of the premises and an appropriation of the rents. Something more is required. In Busch v. Huston, 75 Ill. 347, where a similar question arose, it is said: “It is not sufficient that he continues to occupy the premises and appropriates to himself the exclusive rents and profits, makes light repairs and improvements on the lands, and pays the taxes, for all this may be consistent with the continued recognition of the rights of his co-tenants. To constitute a disseizin, there must be outward acts of exclusive ownership of an unequivocal character, overt and notorious, and of such a nature as by their own import, to impart information and give notice to the co-tenants that an adverse possession and an actual disseizin are intended to be asserted. ” This ruling was affirmed in Ball v. Palmer, 81 Ill. 370, and it has been followed in subsequent cases which it will not be necessary to cite.

Conceding the fact to be as alleged in the bill, that the defendant, who was a co-tenant with the complainant, went into the possession of the land, occupied the same, and appropriated the rents to her own use, this alone would,, not render her possession adverse. The law requires something more. Outward acts of exclusive ownership, of a notorious character, were required. The record, however, contains nothing of the kind. It nowhere appears that the defendant, when she went into the possession of the land, asserted, or even claimed, that she was the exclusive owner. For aught that appears, she may have occupied with the knowledge and consent of the complainant.

From what has been said, it follows that the evidence in the record is not sufficient to sustain the decree dismissing the bill, and the decree will have to be reversed, and the cause will be remanded.

Decree reversed.


author: Mr. Chief Justice Mulkey

text:
    John Lawson v. Louis Lawson et al.

      Filed at Ottawa May 15, 1886.

    1. Statute of Frauds—trust resting in parol. A party who conveys land by a deed absolute in form, can not show by parol evidence that the conveyance was in fact in trust for certain purposes, or for his benefit, when the Statute of Frauds is interposed.
    2. Trust—of the character of interest required. Before a party can have a deed set aside and a trust declared in his favor, he must, by proper evidence, show that he has an equitable interest in the land which a court of equity will recognize and enforce.
    Appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    Mr. William H. Sisson, and Mr. C. F. Gooding, for the appellant.
    Messrs. Rosenthal & Pence, for the appellees.
   Mr. Chief Justice Mulkey

delivered the opinion of the Court:

This was a suit in equity, brought in the circuit court of Cook county, by John Lawson, against his two sons, Louis and Peter, as heirs of Ann Lawson, their deceased mother, to recover certain real estate alleged to be held in trust by the defendants for the complainant. The court below, on the hearing, entered a decree dismissing the bill for want of equity, and the present appeal is from that decree.

The case made by the bill is, in substance, this : The record of the title to the property was destroyed by fire in 1873. After this fire and during that year, the complainant, being the undisputed owner in fee of the premises, conveyed the same in trust to Henry S. Dietrich, to have the record restored and title perfected by a suit to be brought by him under the Burnt Records act, and upon the further trust to reconvey said premises on request. In May, 1877, Dietrich conveyed the property to one Rose, who, in February, 1879, conveyed to Wesley Sis-son. All of these, conveyances were made without consideration and in trust, to hold for the use of complainant. In the fall of 1879 complainant directed his attorney to prepare and cause to be executed a deed by Wesley Sisson to his wife, Ann Lawson, conveying the property to her upon the condition that if she should survive complainant the title was to' become absolute in her, but that if complainant survived her, then the title was to revert to him and his heirs, free from the claims of the heirs of his wife. In September, 1879, Sisson, on his own motion, and without the knowledge or consent of complainant, conveyed the property by warranty deed to Ann Lawson, the same being made without any consideration whatever. In January, 1882, Ann Lawson died intestate, leaving four children, two of whom voluntarily conveyed to the complainant their interest in the land, but the appellees declined to do so, whereupon this suit was brought. The appellees, by their answer, set up and rely upon the Statute of Frauds as a defence.

That the case made by the bill is one which, if true, appeals strongly to a court of equity, can not admit of a doubt. But like all others where the facts charged and out of which the equities arise, are not admitted, the complainant, to succeed, is bound to prove them in the manner prescribed by law. There is no feature about the ease in hand taking it out of this general rule. Before complainant can attack the conveyance made by Sisson to his wife, he must show that he has an equitable interest in it which a court of equity will recognize and enforce. It is admitted, or, rather, expressly charged, in •the bill, that complainant, in 1879, made a conveyance of the property to Dietrich. As that deed is not set out in the record, and no claim is made to the contrary, we must assume it was in form an absolute deed. It is true, he also charges in his bill, as already seen, that the conveyance was made upon certain express trusts, which, if proved, would show that he still has an interest in the land. But the question is, has this charge in the bill been established by legitimate jiroof ? It is not pretended it is evidenced by any writing, as required by the 9th section of the Statute of Frauds. That section having been interposed and relied on as a defence, it follows that in the absence of such proof the appellant does not appear to have any interest in the property sought to be recovered, and hence the court properly dismissed the bill. Hovey v. Holcomb, 11 Ill. 660; Lantry v. Lantry, 51 id. 458; Rogers v. Simmons, 55 id. 76.

Under the j>leadings and proofs we think the decree was right, and it will therefore be .affirmed.

Decree affirmed.


text:
    The Drovers’ National Bank v. The Anglo-American Packing and Provision Company.

      Filed at Ottawa May 15, 1886.

    1. Banks and banking—certified check—liability thereon. A bank which certifies a check drawn upon it, is primarily liable for its payment, the same as upon a promissory note or bond given by it.
    2. Same—a bank receiving a check or bill, whether in payment, on account, or for collection—duty and liability in respect thereto. A "bank taking a certified-check on another bank, either as a payment, oh account, or for the purpose, only, of collection, is entitled to show that the check has-availed nothing, when the bank so receiving the same has discharged its duty by an effort to collect it.
    3. But if the bank receiving such check, either on account or for collection, sends the same directly to the debtor bank for payment, and the debt is lost in consequence thereof, the bank so transmitting the check must bear the loss.

      4. It is not reasonable care in selecting an agent to collect a debt, to select the debtor himself, and place the evidence of the debt in his hands. The debtor can not be a disinterested agent of the creditor. It is such negligence on the part of a bank taking for collection a demand upon another bank, to transmit the same directly to the debtor, as will make it liable for the loss of the debt caused thereby.
    5. Where the holder of a certified check on a distant bank places the same in the hands of a home bank for collection, it will be presumed that the usual mode of collecting in such cases shall be employed; but it can not be inferred that such check shall be surrendered to the bank liable for its payment, leaving it to use its pleasure as to the time and manner of payment.
    6. An agent or bank with whom a check or bill is deposited for collection, must transmit it to a suitable agent to demand payment, in such manner that no loss can happen to any party, whether he is the depositor and indorser, or the indorsee and holder.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of .Cook county; the Hon. John Gr. Rogers, Judge, presiding.
    This was assumpsit, in the circuit court of Cook county, by appellee, against appellant. The declaration contains but one count, and in that it is alleged that plaintiff gave the defendant bank a certified check of one Kieldsen, on Rice & Messmore, bankers of Cadillac, Michigan, to collect, but that the defendant failed to use due diligence in attempting to collect such check, and that while the defendant so held such check and was thus negligent, the drawees failed, never having paid said check or any part thereof, whereby the plaintiff lost the amount mentioned to be paid in said check, to-wit, $806.
    By agreement of parties the cause was tried by the court without the intervention of a jury.' It was stipulated between the parties that the following were facts in the case: On Saturday, October 27, A. D. 1883, one Meyers, as agent of the plaintiff, called upon one Kieldsen, at Cadillac, Michigan, and presented an account of the plaintiff against him, for which said Kieldsen drew his check, dated that day, for the sum of $608.98, upon Bice & Messmore, bankers at said Cadillac. On the same day Bice & Messmore certified said check, and Meyers immediately mailed the same to the plaintiff, at Chicago. Said check was received by the plaintiff, at Chicago, on Tuesday morning, October 30, 1883, and on the same day the plaintiff, who kept an account with the defendant, deposited said check, with other checks, with the defendant, and received credit therefor on his pass book, in the usual way. On said 30th day of October, the defendant mailed the said certified check to Bice & Messmore, at Cadillac, for collection. Bice & Messmore received said certified check by mail on November 2, 1883, and on November 3 mailed to the defendant their check or draft for the amount, less one dollar for exchange, drawn on the Commercial National Bank of Detroit, Michigan, and surrendered to Kieldsen said certified check. Said draft on the Commercial National Bank of Detroit was received by the defendant about noon on November 5, 1883, and the defendant refused to accept the said draft, and on the same day sent the said draft back to Bice & Mess-more at Cadillac, accompanied by a letter addressed to them, of which the following is a copy:
    “Union Stock Yabds, Chicago, Nov. 5, 1883.

      “Rice é Messmore, Cadillac, Michigan:

    “Gentlemen—Your favor of the 3d received. I ¿return your check herein, desiring that you send us draft on New York, as we keep no account in Detroit. To pay you one dollar for exchange, and then to pay exchange in Detroit, would be more than we could afford. We trust that you can as well send New York exchange, if not Chicago.
    “Yours, truly, W. H. Bbintnall, Cashier.”

    Said draft on the Commercial National Bank of Detroit was received by the defendant, and by the defendant returned to Bice & Messmore, as aforesaid, without any notice to or authority from the plaintiff.

      After the said draft had been remailed, and about noon of-the next day, November 6, 1883, the defendant saw a paragraph in the “Chicago Tribune,” of that day, to the effect that Bice & Messmore, bankers at Cadillac, Michigan, had failed on the morning of November 5,1883, which statement afterward proved to be true. The defendant telegraphed immediately to the said Bice & Messmore, on learning of the said failure, to return said check of Kieldsen, or the draft on the Commercial National Bank of Detroit, which request was renewed almost daily, by telegram or letter, until the 15th day of November, 1883, when the defendant telegraphed J. H. Hixson, Cadillac, and received _ the following answer by telegraph :

      "To the Drovers’ National Bank:

    “Can’t do anything. Bice and Messmore both absent from the city. J. H. Hixson.”
    On the same day the defendant telegraphed to the Commercial National Bank of Detroit, as follows: “Is Bice & Messmore draft on you good for $688 ? Answer.” To which telegram the defendant received a dispatch in reply, saying, “No.”
    On the 5th day of December, 1883, the aforesaid draft on the Commercial Bank of Detroit was again received by the •defendant, it having been mailed to the defendant by the assignee of said Bice & Messmore. After the said last mentioned receipt of the said draft, and on the said 5th day of December, 1883, the defendant notified the plaintiff of its non-payment and return, and offered to surrender the said •draft to the plaintiff, with proper indorsement, for collection; that the plaintiff refused to receive the said draft, and that the same is now in the hands of the defendant; that on the 15th day of December, 1883, the defendant, in writing up the bank book of the plaintiff, charged up the amount of the said •collection against the plaintiff as of .said 5th day of Decernber, 1883, and notified the plaintiff of said action, and that the plaintiff refused, and still refuses, to assent thereto.
    It is further stipulated .that the said Bice & Messmore were bankers in good standing at Cadillac, Michigan, up to the time of their failure, and that the said check, if it had been presented to them and currency therefor demanded at any time prior to the said failure, would have been paid; and that at no time subsequent to the said failure would the said draft have been paid by the said Commercial National Bank of Detroit, if the same had been presented to the said bank for payment.
    There was a further stipulation that the following letter might be read by the appellee as evidence of the facts therein stated:
    “Cadillac, Michigan, June 15, 1885.

      “Messrs. Page é Booth:

    “Gentlemen—In reply to yours of the 8th inst., in regard to the standing of J. H. Hixson, banker, at the time of the failure of Bice & Messmore, we will answer as follows: Mr. J. H. Hixson commenced banking and general bank collection business on the 1st of June previous to the time B. & M. failed (in November.) His standing from the time he commenced business has always been good, as far as we are able to say. His Chicago correspondent at the time of the failure was the Merchants’ National Bank of that place.
    (Signed) Feed. S. Eieldsen,

      Receiver for Rice é Messmore, Bankers.”

    Some evidence was introduced on behalf of defendant that in sending the check to Bice & Messmore the defendant was guided by the reports and lists of bankers in its office, which showed no other bankers at Cadillac at the time, and also evidence .tending to show that bankers in Chicago, on receiving drafts, etc., on country banks, 'where there is no other bank at the place in good standing than that on which the collection is received, to send the collection directly to the bank on which the draft is drawn. The court rendered judgment for the plaintiff. That judgment was affirmed on appeal to the Appellate Court for the First District. This appeal is from that judgment.
    Messrs. Sleeper & Whiton, for the appellant:
    The measure of our duty when we received the check was, that we would use reasonable care, as bankers, in attempting to collect it, (Morse on Banking, 2d ed. 396,) and, there being no specific instructions, that we would resort to the usual means to secure the payment. Fay v. Strawn, 32 Ill. 295; Chandler v. Hoyle, 58 id. 46.
    The appellee was bound to take notice of the usual rules and regulations of Chicago banks in collecting checks on country banks. Morse on Banking, 398.
    That we used reasonable and ordinary care, under the admitted facts, see Daniell on Negotiable Instruments, sec. 1599 a; Morse on Banking, 281, 396; Freeholders v. State Bank, 32 N. J. Eq. 467; Indig v. City Bank, 80 N. Y. 200.
    Daniell, in his work on Negotiable Instruments, (3d ed.) sec. 1599 a, says: “Since the second edition of this work the method of presenting negotiable paper at a bank by letter sent by post directly to the bank, has been approved in New York. * * * A check comes evidently within the same principle.” Late English cases sustain the same doctrine. Bailey v. Bodenham, 111 E. C. L. 294; Heywood v. Pickering, 9 L. B. Q. B. 428; Prideaux v. Gridell, 4 id. 428; Briggs v. Central National Bank, 89 N. Y. 182.
    Messrs. Page & Booth, for the appellee:
    It was the duty of the appellant bank in which the check was deposited for collection, either to decline the duty, or if it assumed the responsibility, to select a proper agent to make collection. Morse on Banking, (2d ed.) 415, 416; 1 Daniell on Negotiable Instruments, (3d ed.) sec. 342; Insurance Co. v. Alton City Bank, 25 Ill. 246.

      The drawer of a cheek, or the person primarily liable for its payment, was not the proper agent to employ to make collection thereof. By certifying the check, Bice & Messmore became solely and primarily liable, and the only persons to whom appellee could look for payment. Daniell on Negotiable Instruments, sees. 1601, 1603.
   Mr. Justice Scholeield

delivered the opinion of the Court:

Assuming, first, that appellant is not chargeable with knowledge of the existence of any other bank than that of Bice & Messmore, at Cadillac, Michigan, and second, that all the information it had, or could reasonably obtain at the time, in respect to the financial standing of Bice & Messmore, was, that they were solvent,—were Bice & Messmore suitable agents tti whom to transmit the certified check for collection after it was placed by appellee in appellant’s possession? We do not think it is of much consequence whether appellant took the check as a payment, on account, or for the purpose, merely, of collection, for in either view it is entitled to show that the check, if the bank has discharged its duty by an effort to collect it, has availed nothing. Nor do we regard the evidence that certain banks in Chicago were in the habit of transmitting checks drawn on other banks, to those banks for collection, as affecting the present question. That evidence hardly comes up to the requirement of this court in regard to proof of a common law custom, as laid down in Turner v. Dawson, 50 Ill. 85, and subsequent decisions of like import; but if it did, that custom does not include cases in which certified checks are sent for collection to the banks by which they are certified. In the cases to which the evidence relates, there is no primary liability on the part of the bank to which the check is sent, but in the case of a certified check, the bank is primarily liable for its payment. So far as affects the present question its position is precisely what it is where it makes its promissory note, bond or other evidence of original indebtedness. .(Bickford v. First National Bank, 42 Ill. 242, et seq.) The same person can not be both debtor and creditor at the same time and in respect of the same debt. How, then, can he who is debtor, be, at the same time and in respect of the same debt, the disinterested agent of the creditor? Can it .be said to be reasonable care in selecting an agent, to select one known to be interested against the principal?—to place the principal entirely in the hands of his adversary ? The interest of the creditor, when his debtor is failing, is that steps be taken promptly and prosecuted with vigor to collect his debt. But at such a time the inclination of the creditor quite often, and it may be sometimes his interest, too, is to procrastinate. The debtor may often be interested in bringing about a compromise with his creditors, whereby his debt may be discharged for less than its face; but the creditor whose debt can all be collected by legal proceedings can never be interested in producing that result. Surely it could not be held reasonable care and diligence in an. agent holding for collection the promissory note given by one individual to another individual, to send the promissory note to the maker, trusting to him to make payment, delay it, or destroy the evidences of indebtedness and repudiate the transaction, as his conscience might permit. If this would not be held to be reasonable care and diligence, why should the same conduct be held to be reasonable care and diligence when applied to a bank ?

It is to be borne in mind appellant was not compelled to accept this check for collection. It assumed the burden voluntarily, and it ought to have known that the certified check was not delivered to it merely to have it exchanged for the draft of Bice & Messmore on some othér bank, for if this had been desired, it ought to have known that appellee would have obtained such a draft instead of the certified check. If appellant had no correspondent or agent at Cadillac through whom to make collection, it should have so informed appellee, and then acted on the directions of appellee. This would have imposed no hardship, and would have protected all. It is true that when appellee placed the check in the hands, of appellant, it was to he presumed that it was intended that appellant should collect by the ordinary and usual mode of collecting in such cases, but neither from facts proved nor as a matter of law was it to be inferred that the check was to be surrendered to Bice & Messmore, to use their pleasure as to the time and manner of payment and the disposition of the check. If appellant was willing to take the check without special stipulations, appellee was authorized to assume therefrom that it was able to collect, and that it had a proper agent through whom to do it promptly. 1

Indig v. City Bank, 80 N. Y. 396, cited by counsel for appellant, is entirely different in its material facts from those in the present case, as we conceive. There, the bank owed no primary duty to pay. The note was sent to it for collect ti'on, not from itself, but from the maker of the note. Its liability was solely that of an agent for collection. In the recent case of Merchants’ National Bank v. Goodman, the Supreme Court of Pennsylvania, however, lay down the rule directly the opposite of that laid down by the New York Court of Appeals in Indig v. City Bank. The suit there involved the question whether the bank on which a check was drawn, was a suitable agent to which to transmit the check for collection, and the court held that it was not. The court among other things said: “We think the principle may be stated as a true one, as the plaintiff’s counsel have presented it, that no firm, bank, corporation or individual can be deemed a suitable agent, in contemplation of law', to enforce, in behalf of another, a claim against itself. The only safe rule is to hold that an agent with w'hom a check, or bill is deposited for collection, must transmit it to a suitable agent, to demand payment in such manner that no loss can happen to any party, whether he is depositor and indorser, or the indorsee and holder. * * * We interpret the eases to which we have referred as establishing the rule of transmission to a suitable correspondent or agent, to mean that such suitable agent must, from the nature of the case, be some one other than the party who is to make the payment. By no other rule can the rights of indorsers be protected, if it is the interest of the party who is to make payment, to hinder, postpone or defeat payment. This imposes no hardship on the institution undertaking to transmit for collection, which can always protect itself by stipulating that special instructions by the depositor shall be given, which will save the col-» lecting bank from all risk or peril. ”

It is unnecessary to say that we concur in these views any further than they are applicable to the facts before us.

We find no cause to disturb the judgment below, and it is therefore affirmed.

Judgment affirmed.


text:
    James A. Trowbridge v. George H. Cross.

      Filed at Springfield May 24, 1886.

    1. Partnership rands—homestead—rights of partners as between themselves—and as to creditors. One partner can not acquire and hold a homestead estate iñ real estate of the firm, as against a partnership debt, and without the consent of his co-partners.
    2. The true and actual interest of each partner in the partnership stock, including its lands, is the balance found due to him after the payment of all partnership debts, and the adjustment of the partnership account between himself and his co-partners. In equity, partnership land stands on the same footing as personal property. Such lands are not subject to dower or homestead.
    Appeal from the Circuit Court of DeWitt county; the Hon. Cyrus Epler, Judge, presiding.

      Messrs. Fuller, Monson, & Ingham, for the appellant:
    A partner has no such interest in land of his firm, before-payment of the partnership debts and the adjustment of the partnership accounts, as will form the basis for dower or homestead. As to the nature of his right as respects partnership lands, see Bopp v. Fox, 63 Ill. 540; Parker v. Merritt,. 105 id. 293; Simpson v. Leech, 86 id. 286; Ladd v. Griswold, 4 Gilm. 37; Hapgood v. Conwell, 68 Ill. 65; Rainey v. Nance, 54 id. 29.
    So it has been held that the right to a homestead exemption do.es not exist in partnership land in favor of one partner.. Amphlett v. Hibbard, 29 Mich. 298; Kingsley v. Kingsley, 39-Cal. 666; Rhodes v. Williams, 12, Nev. 20; Pond v. Kimball,. 101 Mass. 105; Harris v. Burns, 67 N. C. 140; Thompson on Exemption, 216.
    It has been held in Indiana, and elsewhere, that a partner is not entitled to his exemptions out of partnership property,, to the exclusion of partnership debts. Love v. Blair, 72 Ind. 281; Smith v. Harris, 76 id. 104; State v. Emmons, 99 id. 452; Gaylord v. Imhoff, 26 Ohio St. 320; Guptil v. McFiey 9 Kah. 30; State v. Spencer, 64 Mo. 356.
    Mr. E. A. Lemon, for the appellee:
    The act giving a homestead applies to a mere possessory title. (Freeman on Execution, sec. 242.) Section 3, by enumerating the cases in which no homestead shall vest, shows-an intent that it shall apply in all other cases. Board of Trustees v. Beale, 98 Ill. 248.
    The exemption of partnership goods is allowed a partner against a firm debt. McMasters v. Alsup, 85 Ill. 157; Gilman v. Williams, 7 Wis. 329; Stewart v. Brown, 37 N.Y. 350; Radcliffe v. Wood, 25 Barb. 52.
    Thompson, in his work on Homesteads and Exemptions,, holds that the right of exemption exists in favor of co-partners. (Sec. 216.) As a general rule, a part interest is,, in most of the States, as much exempt from execution as though it were an interest in severalty. Freeman on Executions, sec. 221.
   Mr. Justice Craig

delivered the opinion of the Court:'

This was an action of ejectment, brought by James A. Trowbridge, against George H. Cross, to recover a certain tract of land in De Witt county. The land originally belonged to Gilbert Beebe, who conveyed it to Cross & Bennett, a firm composed of George H. Cross and Orlando B. Bennett, formed for the purpose of manufacturing and selling tile. A mill was erected on the land, and the business of the firm was conducted on the property. Cross, one of the partners, erected a house on the property, which he occupied with his family. The firm contracted a debt in the transaction of its business, upon which a judgment was rendered. An execution was issued, and levied on the land in question, which was sold, and no redemption having been made, the title passed to Trowbridge, who brought this action to recover the land. The defendant, Cross, claims that the property was his homestead, and, as such, was not liable to levy and sale in satisfaction of the judgment, and this is the only defence relied upon to defeat" a recovery. On the trial the circuit court held that the property was not liable to sale on the judgment, and rendered a judgment against the plaintiff for costs. The plaintiff appealed. The other member of the firm (Bennett) does not consent or agree that Cross shall have a homestead in the property, and the only question'which has been argued, and the only one presented by the record, is, whether one member of a firm can hold a homestead "estate in the real estate of the firm as against a co-partnership debt, and without the consent of the co-partner.

Section 1 of our statute in relation to homestead exemptions, provides “that every householder having a family shall be entitled to an estate of homestead to the extent in value of $1000 in the farm or lot of land and buildings thereon, owned or rightly possessed, by lease or otherwise, and occupied by him or her as a residence.” The statute also provides that such homestead shall be exempt from sale on judgment for the payment of debts. This statute has-always received a liberal construction in favor of those claiming its protection, it being the policy of our laiv to afford a home for a failing debtor and his family, out of his property, not exceeding in value $1000, when actually occupied as a residence by a householder. But whether this statute has any application to partnership property, is a question which has never been presented directly to this court.

In Thompson on Homesteads and Exemptions, sec. 196, it is said: “That a single partner can not claim an exemption out of unsettled partnership assets, is settled by a decided weight of authority. ” In Pond v. Kimball, 101 Mass. 105, the Supreme Court of Massachusetts held that the exemption is several, and not joint. “It applies to the debtor in the singular number, and is personal and individual only. ” It was also.held that property purchased with the joint funds of the firm, and constituting a portion of its capital, must necessarily be subject to all the incidents of partnership property. The same rule was adopted in Guptil v. McFie, 9 Kan. 35, Gaylord v. Imhoff, 26 Ohio St. 317, and Rhodes v. Williams, 12 Nev. 20. In Indiana the Supreme Court of that State has held in a number of cases that one partner can not hold a portion of the partnership property as exempt. State v. Emmons, 99 Ind. 452; Love v. Blair, 72 id. 281; Ex parte Hopkins, 104 id. 157. The same rule has been adopted in other States. In Iowa and New York a different rule prevails. Hewitt v. Rankin, 41 Iowa, 35; Stewart v. Brown, 37 N. Y. 350.

It will not, however, in the view we take of the question, be necessary to enter upon an extended review of the decisions of courts of other States, as we are of opinion that our court has established á rule in regard to partnership property, which, in effect, when carried to its logical result, must be conclusive of the question involved.

It will be- conceded that there is a wide difference between real estate held by a failing debtor in his. own right and real estate owned by a firm, and it may well be doubted whether co-partnership property was within the contemplation of the legislature when the exemption statute was enacted. In Story on Partnership, sec. 360, in discussing the nature and character of firm property, the author said: “As between the partners themselves, the debts and liabilities of the firm to creditors and third persons, they (the assets) are a fund appropriated in the first instance to the discharge and payment of such debts and liabilities, and, there is,, properly speaking, as between them, a lien thereon, or at least an equity, which may be enforced through the partners in favor of creditors, although it may not directly attach in the creditors by virtue of their original claims in all cases. ” The doctrine announced by Story was sanctioned and approved by this court in Rainey v. Nance, 54 Ill. 30. It is there said, as to the order in which debts against the firm and then against the individual members of the firm shall be paid, it is the settled rule that no one partner has a right or share in the firm property except the portion which remains after full payment of all debts and liabilities of the partnership; and it thence follows that each partner has a right to have the same applied to the due discharge and payment of all such debts and liabilities before any of the partners,- or his personal representatives, or his individual creditors, can claim any right to the same. In Bopp v. Fox, 63 Ill. 540, the same principle is announced, and in the decision of the case it is there said: “It is a well kno*wn rule governing the relation of partnerships, that partnership property must first be applied to the payment of partnership debts, and that the true and actual interest of each partner in the partnership stock is the balance found due to him after the payment of all partnership debts, and the adjustment of the partnership account between himself and his co-partners; and in equity real estate forms no exception, but stands on the same footing in this respect with personal property, no matter in whom the legal title may be vested. ” In the case cited the court also held that a partner who took the legal title to one-fourth of the land, in equity never had any beneficial interest in the land distinct from partnership purposes,—that he took the title to the land clothed with an implied trust that it should be applied to the payment of the partnership debts, if necessary. In the same case it was held that a widow of a deceased partner was not entitled to dower in partnership real estate until all partnership debts have been paid, and the accounts between the partners have been adjusted. This case was followed by Simpson v. Leech, 86 Ill. 286, Where the same rule was declared.

If the property here involved is to be regarded as personal property as to the rights and interest of the partner, Cross, so long as there were partnership debts, then it would seem plain that the right of homestead provided by the statute could not be invoked, as an estate of homestead can not be predicated on personal property. Or, if the co-partner, Cross, took the property clothed with an implied trust that it should be applied in the payment of partnership debts, as held in the case cited, he could have no interest whatever in the land after it had been appropriated to that purpose, as was done when it was sold in ’ satisfaction of a partnership liability. After the property had been taken and sold, for partnership liabilities, there was nothing left upon which a homestead right could be predicated. We are committed.to the rule that the right of dower will not attach to partnership real estate as against partnership liabilities, and if dower will not, it is difficult to perceive any principle upon which it can be held that the right of homestead can be sustained. The right of dower is denied because the partner has no beneficial interest in the property distinct from partnership purposes. The right of homestead may be denied for the same reason, upon the ground that the property must primarily be devoted to the payment of partnership liabilities, and that a partner has no interest in the property upon which a homestead can be based, until the partnership.debts are paid..- As was said before, we do not think that our statute in regard to homestead was. intended to apply to partnership property, but the object was to exempt individual property,—such property as a householder might acquire, not as a partner of a firm, hut in his own individual right; and where property is purchased by a firm, the title is held subject to all the incidents of partnership property.

The judgment of the circuit court will be reversed, and the cause remanded.

Judgment reversed.