author: . Mr. Justice Sheldon Mr. Justice Mulkey :

text:
    The Galena and Southern Wisconsin Railroad Company v. William Ennor.

      Filed at Ottawa January 25, 1886.

    1. Subscription—secret agreement favoring the particular subscriber. A secret agreement made with a subscriber to the stock of a railway corporation, who subscribes with others, that he shall pay only a part of his subscription, is fraudulent as to the otter subscribers, and void, and his subscription will be valid and binding for the whole amount thereof.
    2. Same—upon condition not performed. A subscription to a railway company to take a certain number of its first mortgage bonds, containing a clause that it is not to be binding unless one hundred of such bonds are subscribed for, is not binding until one hundred of the bonds are so subscribed.
    3. And a subscription to be paid on demand being made at any time after the company’s road should be graded to a point within five miles of a village named, the same to be in force only until September 20,1879, after that date, without performance of the condition, is an invalid subscription, and can not be enforced.
    4. Chancery—relief against a judgment—neglect to malte proper defence at law. If a party having the means of defence to an action at law in his power, neglects them, and suffers a recovery to be had against him, a court of equity will not grant him,relief against the judgment unless he shows he was prevented from availing of his defence by the fraud or improper act of the plaintiff, unmixed with negligence or fraud on his part.
    5. So where a party sued at law stands by and permits the introduction of incompetent evidence of a fact necessary to be shown to entitle the plaintiff to recover, which could not have been shown by proper evidence, and in consequence thereof judgment is recovered against him, a court of equity will not relieve him from the result of his own neglect and inattention to his legal rights.
    6. Same—■relief against judgment—on ground of fraud. It is no ground in equity for setting aside a judgment at law, that there was false testimony given on the trial, or false representation or assertion as to the defendant’s liability previously made; and the failure of the plaintiff to produce written evidence on the trial, and giving parol evidence, where inadmissible if objected to, will not amount to a fraud on the defendant in the judgment, as to the fact the written evidence would have shown.
    7. Same—relief against judgment on subscription for bonds and stock which the plaintiff can not deliver—to what extent. A judgment was recovered by a railway company on a subscription for eight of its first mortgage bonds and forty shares of its stock, which it was afterwards unable to give through its own default, having parted with them, its mortgage having been foreclosed, and the company become insolvent. The judgment debtor sought by bill to have the collection of the judgment enjoined until the bonds and stock should be deposited in court for him: Held, that he was entitled to some relief, but not to the extent sought, as the bonds and stock could not be delivered, but that he was entitled to have the actual value of the proportionate share of the eight bonds credited upon the judgment. In such case the company would be chargeable only with the value of the bonds at the time it disposed of them—not their face value or purchase price.
    8. Concubbent obligations—recovery of judgment by one of the parties—effect on the obligation of the other. Where the hqlder of railroad bonds and stocks sells the same for a certain price, the undertaking to pay and to deliver the bonds and stocks are concurrent, and neither can compel performance by the other without being himself ready and willing to perform his part; and a recovery of judgment for the price will not absolve the vendor from performance on payment" of the judgment, nor will he be required to perform before the judgment is paid; but if he puts it out of his power to perform, by the sale of the bonds and stock, and becomes insolvent, a court of equity will credit the judgment, with the value of such bonds and stock at the time of their conversion.
    9. Bubden oe pbooe—to show that a condition has been fulfilled. In an action on a subscription conditioned upon a certain amount being subscribed, it is incumbent on the plaintiff to 'show affirmatively that the amount named had been subscribed before suit. Without such proof he can not recover.

      10. Set-off—in equity. It is not essential to the proper allowance of a legal demand as a set-off in equity' against a judgment at law, on the ground of the insolvency of the party in whose favor the judgment was recovered, that the insolvency should have occurred subsequent to the judgment. The set-off may be allowed irrespective of the time of the occurrence of the insolvency, whether before or subsequent to the judgment. Nor is the case of Chicago, Danville and Vincennes Railroad Co. v. Field, 86 Ill. 270, to be understood as holding a different rule.
    11. And although the cross-demand in such case might have been set off in the action at law in which the judgment was recovered, that was permissive, but not compulsory on the defendant.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Jo Daviess county; the Hon. William Brown, Judge, presiding.
    Mr. M. Y. Johnson, and Mr. J. S. Baume, for the appellant:
    After an appearance and defence at law, when the identical matter was an issue, and found against the defendant, a court of equity will not relieve from the judgment, or grant a new trial. Fuller v. Little, 69 Ill. 229; Hawley v. Summon, 102 id. 118; Daws v. Talcott, 2 Kern. 184; Collins v. Bennett, 46 N. Y. 490; Baker v. Palmer, 83 Ill. 574.

      Res judicata embraces not only what has been determined in the former suit, but extends to all matters properly involved, which might have been raised and determined by the case. Rogers v. Iliggins, 57 Ill. 244; Kelly v. Dowlin, 70 id. 378; Briscoe v. Lloyd, 64 id. 33; Hicks v. Chapin, 67 id. 375 ; Howell v. Goodrich, 69 id. 556; Brown v. Swan, 10 Pet. 498.
    Courts of equity will not grant relief against a judgment at law on any grounds that might have been available on the trial. Lyons v. Coldridge, 69 Ill. 536; Fuller v. Little, id. 229; 18 How. 420; 24 id. 241; Coit v. Tracy, 8 Conn. 268; Brown v. Swan, 10 Pet. 498 ; LeGuen v. Gouverneur, 1 Johns. C. 502; 2 Burr. 1009; 7 Tenn. 269.
    A party is not to be allowed a double chance of presenting a defence. If his attorney is incompetent and irresponsible, it is defendant’s laches, and a court of equity will not interpose. Kern v. Strausberger, 71 Ill. 413; Walker v. Shreeve, 87 id. 475; Clark v. Erving, 93 id. 572.
    A party will not .be relieved on the grounds of his having proceeded to trial at law without sufficient evidence, when it was in his power to have obtained that evidence by a bill of discovery. 4 Johns. 510; 1 Johns. Ch. 50 ; 1 Johns. 492; 3 Johns. Ch. 351; Wright v. King, Har. (Mich.) 12.
    Nor will he, on grounds of which he could have availed himself, unless he was prevented from doing so by fraud or accident, or the act of the other party, unmixed with negligence or fraud on his part. Duncan v. Lyon, 3 Johns. Ch. 351.
    A party will not be relieved from,a judgment at law as being contrary to equity, unless he was ignorant of the facts constituting his defence, or they could not have availed at law. Abrams v. Camp, 3 Scam. 291; Walker v. Kretsinger, 42 Ill. 502.
    Any laches on his part will prevent his obtaining relief in equity. Ballance v. Loomis, 22 Ill. 84; Higgins v. Bullock, 73 id. 206.
    The fraud for which a judgment may be vacated in equity, must be in the procurement of the judgment. Muscatine v. Railroad Co. Dill. C. C. 536.
    Where a party elects to defend at law, he is bound to present every defence he can. Hendrickson v. Hinckley, 17 How. 443; Curtis v. Cisna, 1 Hamm. 432; Burton v. Hynsen, 14 Ark. 32.
    It must appear that the defendant was not aware of the fact sought to be brought out prior to the trial at law. George v. Strange. 10 Gratt. 499; Faulker v. Harwood, 6 Rand. 125.
    Mr. R. H. McClellan, and Messrs. D. & T. J. Sheean, for the appellee:
    The judgment was obtained through false representations and false testimony on the part of the company,- the falsity of which • was not known -to Ennor for over fifteen months thereafter. McGahn v. Ford, 68 Ill. 215.
    A party putting it out of his power to perform, or simply unable to perform, can not compel the other party to perform. Mecum v. Railroad Co. 21 Ill. 533; Stoolfire v. Boyse, 71 id. 223; Bourland v. Gibson, 91 id. 470.
    As to grounds for a court of equity to grant a new trial at law, see Freeman on Judgments, (2d. ed.) sec. 507; Hubbard v. Hobson, Breese, 149; Gregg v. Brewer, 67 Ill. 532; Smith v. Allen, 63 id. 475 ; Shinkle v. Litcher, 47 id. 217; Foster v. Wood, 6 Johns. Ch. 87; Lansing v. Eddy, 1 id. 51; Willard’s Eq. Jur. 353; Davis v. Tiliston, 6 How. 119; Weaver v. Poyer, 79 Ill. 422; Wilday v. McConnell, 63 id. 279.
    The concealment of facts which, if known at the trial, would have prevented a recovery, is a good ground of equitable relief.. Freeman on Judgments, sec. 491; Mitchell v. Harris, 2 Ves. 135; Skinkle v. Litcher, 47 Ill. 216.
    Fraud as a ground of equitable relief: Freeman on Judgments, sec. 489; Nelson v. Rockwell, 14 Ill. 375; Weirich v. DeZoya, 2 Gilm. 385; Wilday v. McConnell, 63 id. 279.
   . Mr. Justice Sheldon

delivered the opinion of the Court:

This was a bill in chancery, brought by William Ennor, in the circuit court of Jo Daviess county, for relief in respect of a judgment for $5678, rendered against him in favor of the Galena and Southern Wisconsin Railroad Company, on June 30, 1879, for the subscription price of eight of the first mortgage bonds of said company, which he had agreed to pay by signing the following subscription paper for eight bonds:

“We, the undersigned, hereby agree to take the number of first mortgage bonds and shares of stock of the Galena and Southern Wisconsin Railroad Company set opposite our names, and to pay for the same at the rate of $650, in cash, for each $1000 bond and five shares of stock, on demand being made by the secretary of the company,—the money to be deposited in one of the banks of Galena, as collected, and kept as a special fund, to be used for building and equipping an extension of the Galena and Southern Wisconsin railroad to Wingville. This subscription not to be binding unless one hundred of said bonds shall be subscribed for.

Galena, Feb., 1877.”

The action wherein the judgment was recovered, was brought upon said subscription paper. The bill sets out that the complainant never received from the company the bonds or stock so subscribed for, and that the company is utterly unable to furnish and deliver the bonds and stock; that the company is wholly insolvent; that its railroad, and all its property and franchises, were sold and conveyed, on May 3, 1879, to a purchaser at a foreclosure sale, under a decree of foreclosure of a mortgage given by the company, to secure all the bonds issued by it; that one hundred of said bonds were never subscribed foi’—a fact of which the complainant was ignorant at the time of the recovery of the judgment, and has since discovered; that on July 11, 1879, upon a writ of -capias ad satisfaciendum issued upon the judgment, the complainant was arrested and imprisoned in jail, and kept so imprisoned until September 28, 1880, a period of more than fourteen and a half months, when he was released on bail, pending proceedings on appeal for discharge under the Insolvent Debtor act, which proceedings were still pending; and that it was not until after such release from imprisonment, when, for the first time, he learned that the full number of one hundred bonds had not been subscribed for. Fraud is charged in obtaining the judgment through false representations and false testimony on the part of the railroad company. The bill prays for an injunction to restrain any further attempts to collect the judgment until the defendant is able and ready to produce and deliver the said eight bonds and forty shares of stock, that the judgment be set aside, arid a new trial granted. Also, that a promissory note for $500, which the complainant holds against the company, be set off against the judgment. The circuit court, on hearing, dismissed the bill. On appeal to the Appellate Court for the Second District, that court reversed the judgment of the circuit court, and entered a final order that a new trial be granted, and that the collection of the judgment be enjoined until the railroad company produce the bonds and stock in court, to be delivered to the complainant—whereupon the defendant took this appeal.

There is no controversy upon the facts, and we do not think they show ground for setting aside the judgment and allowing a new trial.

As respects there not having been the number of one hundred bonds subscribed for, it appears there were three subscription papers,—the one signed by the complainant, upon which were subscribed seventy-three bonds; upon another similar paper, nineteen bonds-; and a third paper, containing ten bonds, is as follows:

“Galena, April 13, 1877.
“We, the undersigned, hereby agree to take the number of first mortgage bonds, of $1000 each, of the Galena and Southern Wisconsin Bailroad Company, set opposite our names, at sixty-five cents on the dollar, and pay for the same on demand being made by the secretary of the company, at any time after said railroad is graded to a point within five miles of the village of Montfort, Wis. The above to be in force only until September 20, 1877.”

As to a portion of the /(bonds on the paper containing the seventy-three, it is objected that the subscription for them was only colorable, in this, that two of the subscriptions, for five bonds each, were under the secret agreement that the subscribers should be required to take and pay for two, only; and another, for five bonds, was under a similar agreement that only three should be taken and paid for. Such secret agreement was fraudulent as to the other subscribers, and was void and of no avail, and the subscription is to be regarded a valid one for the amount subscribed. Melvin v. Lamar Ins. Co. 80 Ill. 457.

As to the paper containing the ten bonds, it appears that the company never graded the railroad to a point within 'five miles of the village of Montfort, and ceased work upon the road before September 20, 1877, and never again resumed the work. Nothing was' ever paid on any of these bonds, and none of them were ever taken, and this was an invalid subscription from non-compliance with the condition's thereof by " the railroad company. So, then, there were but ninety-two bonds subscribed, and complainant’s subscription did not become binding upon him, there not having been one hundred bonds subscribed for. This was a defence which might have been and should have been made in the action at law wherein the judgment was recovered. And it was not mere matter of defence, the one hundred bonds not being subscribed, which it was for the defendant to find out and make appear, but the subscription for them was an element of the cause of action, without proof of which there could not have been a judgment recovered. The declaration was upon the subscription paper, averring that the one hundred bonds had been subscribed. The defendant appeared and defended against the suit by his attorney. All that was needed to avoid the recovery of the judgment wras for the defendant to stand upon his legal rights, and insist upon the cause of action' being established in a legal mode. Instead of this being done, there was produced upon the trial only the one subscription paper signed by the defendant, and secondary evidence, without objection by the defendant, was given by the statement of a witness that one . hundred bonds had been subscribed. Thus the defendant waived his right to have the best evidence, and the legal evidence of the subscription, to-wit, the subscription papers, produced, when, if he had but stood upon such right, the subscription papers would have to have been produced, which, of themselves, would have shown the lacking subscription, and have defeated the action. The result, the judgment recovered, came from the defendant’s neglect and inattention as to his legal rights.

What is relied upon as showing the fraud charged, in obtaining the judgment through false representations and false testimony, is, that the president of the company told the complainant several times after his subscription, that the one hundred bonds were subscribed for, and that the ex-secretary of the company testified on the trial that the one hundred bonds were subscribed for. We see nothing in this to warrant a charge of fraud. The hundred bonds were, in fact, subscribed for, and although the subscription for ten of them was conditional, yet, if the condition had been complied with, they would have been valid and available, and have met the requirement of complainant’s subscription, and willful falsity can hardly be imputed to the statement that one hundred bonds had been subscribed. It can not be allowed as a ground for setting aside a judgment, that there was false testimony given on the trial, or false assertions as to liability, previously made. If this were admitted there would be little stability in judgments. The declaration itself contains the assertion that one hundred bonds had been subscribed for, but this, though untrue, could not be adduced as evidence of fraud or in justification of reliance upon it, to the neglect of any defending against the suit. But little more of reliance was complainant entitled to place upon such representations as above, which had been made to him. The circumstance of not introducing in evidence the subscription papers, and giving parol evidence as to the number of bonds subscribed for, did not, as claimed, amount to a fraudulent suppression of knowledge of the number of bonds subscribed. The proof fails to show that the complainant was prevented from availing himself of his defence by the fraud or act of the opposite party, unmixed with negligence or fault on his part. Under the authorities,' a case is not presented for the interference of a court of equity to set aside the judgment. As said by Kent, J., in the case of LeGuen v. Gowerneur & Kemble, 1 Johns. Gas. 502: “Every person is bound to take care of his own rights, and to vindicate them in due season and in proper order. That is a sound and salutary principle of law. Accordingly, if a defendant, having the means of defence in his power, neglects to use them, and suffers a recovery to be had against him by a competent tribunal, he is forever precluded.” And again says Chancellor Kent, in Duncan v. Lyon, 3 Johns. Cb. 351: “It is a settled principle that a party will not be aided after a trial at law, unless he can impeach the justice of the verdict by facts, or on grounds of which hé could not have availed himself, or was prevented from doing it by fraud or accident, or the acts of the opposite party, unmixed with negligence or fault'on his part.”

But if this relief fails, of having the judgment set aside and a new trial granted, complainant insists that he is entitled to the relief of having the collection of the judgment enjoined until the railroad company produce the bonds and stock in court, to be delivered to the complainant: This is the relief the Appellate Court granted, and we are of opinion complainant was entitled to some-relief in this direction, but not to the extent allowed by the Appellate Court. The judgment is for the purchase price of the bonds and stock, and it is inequitable that complainant should be made to pay the judgment and get neither bonds nor stock. He has as yet received nothing whatever, and it is admitted on both sides that it is not now, and never will be, in the power of the railroad company to furnish and deliver any bonds or stock. If, then, the collection of the judgment is enforced, a large sum of money will have to be paid without any consideration whatever. The judgment did not release the railroad company from furnishing the bonds, but notwithstanding the judgment, and in entire consistency with it in its full integrity, the duty yet remained with the company to deliver the bonds on payment of the judgment. Under the-contract' . of subscription, the delivery of the bonds and payment of the purchase price were concurrent acts. Neither party was bound to perform without performance, or ability and readiness to perform, on the part of the other. The judgment was •not a payment of the purchase price, and the company was not bound to deliver the bonds until the judgment was paid, but when paid, it should, under the contract, deliver the r.bonds. The judgment is in course of being satisfied by imprisonment of-the person of complainant in jail, and has been satisfied, in part, by the suffering. of some fourteen and a half months’ imprisonment. The inability to furnish -the bonds has come through the company’s default, and it should answer in respect of it upon this judgment, as it is the only mode in which it can be made to respond for the consideration of it. To enjoin the collection of the judgment until the production of the bonds for delivery, amounts to an annulment of the judgment,—it is a perpetual stay of its collection. This, we think, is more than equity requires. It -is of no benefit to complainant to have the bonds in specie. They are, of themselves, independent of the mortgage security, worthless. It is only their value, which, in an equitable view, complainant is entitled to have. This is not necessarily the face value of the bonds, or the price at which they were subscribed for. It does not appear that there has ever been any depreciation of value in the bonds, and if there had been, any loss from that cause should not be borne by the railroad company, as the complainant has never entitled himself to have the bonds, never having paid the purchase price. Frequent demands were made upon the complainant for his subscription, when the bonds were ready to be delivered to him on payment, but he has ever refused to make any payment. It was the right of the company to hold the bonds until payment was made for them. We are satisfied, 'from the evidence, that, at least, the bonds never underwent any depreciation in value after the time the company became unable to deliver them. The company is, we think, under a no more rigorous responsibility than would come from a conversion of the bonds, considering them as held in trust for complainant/- stt the time the-company disposed of them or became unable to deliver them. The measure of damages for a conversion of the bonds would not have been their face value or purchase price, but their actual value. All the value the bonds ever had, so far as appears, consisted in the mortgage • security given for their payment. This mortgage has been foreclosed, and the mortgaged property bought in,-in satisfaction of the bonds the mortgage was given to secure, these bonds for which complainant subscribed being among them, they entering into and forming part of the decree of foreclosure. The proportional share of the eight bonds for which complainant subscribed, in the mortgage security and -the avails of it, is wdiat we think complainant is entitled to 'have; that he is entitled to have the value of such proportionate share credited- and allowed upon the judgment, and that such is the full measure of relief in this respect; that in’equity complainant is not entitled to have the bonds themselves.

It is objected that this goes in impeachment of the. judgment ; but it does not at all, in our view. It consists with "the full force arid conelusiveness of the judgment. ' That there had been delivery of the bonds was not found by the judgment, nor wras such delivery within the issue in the case. It was only needful to the recovery of the judgment that there should have been an ability and readiness to deliver the bonds upon paying for them. It was entirely consistent with the judgment, that after it was rendered the bonds should be held, and not delivered until the judgment was ready to he paid. It is said that at the time of rendering the judgment, complainant might have required the bonds to be deposited in court, and there kept ready to be delivered upon payment of the judgment. This may have been, but the not doing so should not debar the right afterwards to have delivery of the bonds, upon payment of the judgment.

In respect of the set-off of the $500 note of the company against the judgment, the point made against that is, that the company was insolvent at the time of the judgment, and that the set-off should have been pleaded in that action wherein the judgment was recovered. Chicago, Danville and Vincennes Railroad Co. v. Field, 86 Ill. 270, is referred to as being supposed to decide that it is only insolvency occurring subsequent to the judgment, which will form ground for equitable jurisdiction to have a demand in favor of the judgment debtor set off against the judgment. That was a case of insolvency arising after the judgment, which fact strengthened the equity of the application, and the language there used may have been calculated to mislead, and carry the idea-that it was only such subsequent insolvency which would give the jurisdiction in equity. But that case is not to be taken as so deciding, and we are referred to no authority which so holds. Although the note might have been set off in the action at law, that was permissive, but not compulsory upon the defendant. (Field’s case, supra.) There being no question as to the validity of the rióte or the insolvency of the railroad company, we are of opinion the set-off of the note should have been allowed, irrespective of the time of the occurrence of the insolvency, whether before or subsequent to the judgment.

The decree of the Appellate Court will be reversed, and the cause remanded to the circuit court for further proceedings consistent with this opinion, the injunction, however," decreed by the Appellate Court, to be continued ■ until the value of such proportionate share as above mentioned, of complainant’s bonds and stock, shall have been ascertained and applied as a credit upon the judgment, as also the amount of said promissory note. -r,

Decree reversed.

Mr. Justice Mulkey :

I do not concur in the above opinion. I regard the grounds relied on for relief as having been fully-settled by the judgment at law, which is still in full force,— or, in other words, I am of opinion that the whole matter is res judicata. Such being the case, the decree of the trial court should have been simply affirmed by the Appellate Court.


source: Caselaw Access Project

author: Mr. Chief Justice Mulkey

license: Public Domain

text:
    Judson M. W. Jones et al. v. Wilhelmina Fisher.

      Filed at Ottawa January 25, 1886.

    1. Appeal bond—liability thereon—inability of principal obligor to perform its conditions, by reason of his own wrongful act. The legal holder of a certificate of membership in the Chicago board of trade, after a decree that he deliver the same to his principal, for whom he held the same, and pending an appeal by him from such decree, incumbered the certificate by his speculations, to its full value. After the affirmance of the decree’ he offered the party entitled thereto the then worthless certificate, and such tender was pleaded in bar of an action on the appeal bond: I-Ield, that the offer to deliver the certificate thus incumbered was no defence to the action, and that the obligee in the bond was entitled to recover the value of the certificate at the time it should have been transferred to him.
    2. Appeal—reviewing question as to amount of damages. In an action on an appeal bond, where the judgment of’ the trial court is affirmed, this court has nothing to do with the question of the amount of the damages found.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.

      Wilhelmina Fisher filed a bill in the Superior Court of Cook county, against John H. Weaver, her former business manager, to compel him, among other things, to transfer and deliver to her a certificate of membership in the Chicago board of trade, which had been taken out by her in his name, to enable him to transact her business, and which on leaving her service he refused to transfer to her, in pursuance of an agreement to that effect. The court, on the hearing, entered a personal decree against Weaver for $79.66, and directed him to transfer and deliver to complainant the certificate of membership in question, and enjoined him from disposing of the same except as therein directed. From that decree Weaver prayed an appeal to the Appellate Court for the First District, which was allowed, on his entering into bond to the complainant in the sum of $5000, with the appellant Judson M. W. Jones, as his surety, conditioned that the defendant would perform the decree in case the same was affirmed. The appeal was perfected as provided in the order allowing the same, and on the hearing the decree was affirmed by the Appellate Court. The judgment of the Appellate Court affirming the decree of the Superior Court, was reviewed by this court at its March term, 1884, resulting in an affirmance of the same. (See Weaver v. Fisher, 110 Ill. 146.) The terms of the decree not having been complied with, appellee brought an action in the Superior Court of Cook county, against Weaver and Jones, on the above mentioned appeal bond, the condition of which is as follows:
    “The condition of the above obligation is such, that whereas the said Wilhelmina Fisher did, on the 5th day of June, A. D. 1882, in the Superior Court of Cook county, in the State aforesaid, and of the June term thereof, A. D. 1882, recover a decree against the above bounden John H. Weaver, for the sum of seventy-nine dollars and sixty-six cents ($79.66,) besides costs of suit, and that he, the said John H. Weaver, assign in blank and deliver to said Wilhelmina Fisher the certificate of membership in the board of trade of the city of Chicago, numbered 2861, together with the ticket of admission to the said board of trade' issued thereon, and that he, the said John H. Weaver, do not otherwise dispose of the said certificate of membership, from which decree of the said Superior Court the said John H. Weaver has prayed for and obtained an appeal to the Appellate Court of said State for the First District thereof:
    “Now, therefore, if the said John H. Weaver shall duly prosecute his appeal with effect, and, moreover, pay the amount of the decree, costs, interest and damages rendered ■ and to be rendered against him, and shall duly perform all things in said decree by him decreed to be performed, in ease the said decree shall be affirmed or said appeal be dismissed in the said Appellate Court, then the above obligation to be void, otherwise to remain in full force and virtue. ”
    The cause was submitted to the court without a jury, resulting in a finding and judgment for the plaintiff for $5000 debt, and $4105.75 damages, which, on appeal, was affirmed by the Appellate Court for the First District, from which court the cause is brought.here for review.
    Messrs. Hutchinson & Partridge, for the appellants.
    Mr. Rufus King; for the appellee.
   Mr. Chief Justice Mulkey

delivered the opinion of the Court:

Under the charter and by-laws of the board of trade of Chicago a member is not permitted to sell or assign his right of membership, or the certificate thereof, while there are any unadjusted claims against him in favor of other members of the board. Such' unadjusted claims or liabilities against a ' member constitute a lien upon his right of membership, hence any sale or transfer of the same," or of the certificate of such membership, will be inoperative as against other members of the board having valid claims against him. It appears that within a short time after the execution of the appeal bond sued on, Weaver, availing himself of the certificate of membership still in his possession, in utter disregard of appellee’s rights, continued to operate as a member of the board of trade. His speculations among the members of that body, whether so intended or not, soon resulted in involving him in liabilities to other members of the .board to the full value of the certificate, and such liabilities continued to exist up to- the time of the commencement of this suit. After having thus incumbered appellee’s certificate of membership standing in his name, to the amount of its full value, and having failed to sustain his appeal, he offered to assign to her the then worthless certificate, and this offer is relied on by him and his surety as the chief defence to the present suit. Such a defence is wholly destitute of merit, and can not prevail. The position of appellants affords a striking illustration of that species of construction called “sticking in the bark.” At the time of giving the bond, the certificate in question was the evidence of a valuable property right. It was to protect this right that appellee went into a court of equity and prosecuted her suit to a successful termination. By the defendant’s appeal, which deprived appellee of the immediate fruits of her decree, he, in legal effect, bound himself, in the event he failed to reverse the same, to transfer and deliver to her the certificate in question, and it is but a fair and common sense construction of the contract to say that he intended to, and did, bind himself to make such a transfer of it as would pass to her the right represented by it, as the same then existed, unincumbered and unaffected by anything he might subsequently do. A promise to do a particular thing always carries with it an implied stipulation that the promisor will not do anything to make the performance of the promise unavailing. So by executing the appeal bond, Weaver impliedly covenanted that he would not, pending the appeal, do anything to render compliance with the condition of the bond a fruitless and idle ceremony, in the event the appeal should fail. Weaver, by his conduct, put it out of his power to make such a transfer of the certificate as would confer on her the ownership of an unincumbered membership in the board of trade. His offer to perform therefore afforded, as we have already seen, no defence to the action.

It also follows, from what we have said, that the value of the certificate at the time it should, by the terms of the bond, have been transferred, was not, as is claimed by appellants, the true measure of damages, but rather what the certificate would have been worth if Weaver had done nothing pending the appeal- to impair its value.

The point is also made that the certificate is not property, and that it therefore has no value which the law recognizes. The fallacy of this position is directly met by the case of Weaver v. Fisher, 110 Ill. 146. That case expressly decides that such a certificate is property.

We have nothing to do with the amount of damages assessed by the trial court. That was a question for the Appellate Court, and not this.

It is conceded there was a breach of the condition of the bond, and, as we have already seen, the matters set up by way of confession and avoidance afforded no answer to the action.

Nothing, then, remained of the ease except -the question of damages, and that has been conclusively settled against the appellants. Indeed, from whatever aspect we view the defence in this case, we perceive no merit in it.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    The People ex rel. Philiskey F. Stanley v. Michael W. Ryan.

      Filed at Ottawa January 25, 1886.

      1. Redemption from tax sale—what essential to a valid redemption— as to subsequent taxes. In order to make a valid redemption of lots from a tax sale, the party redeeming is required by the statute to deposit with the county clerk the amount for which they were sold, together with the statutory penalty which may have accrued, and all subsequent taxes and special assessments, with ten per cent interest thereon from the _ day of their payment, unless such subsequent taxes and 'special assessments have been paid by or on behalf of the person for whose benefit the redemption is sought to be made.
    2. To a petition in due form, for a mandamus to compel the county clerk to issue a tax deed to the relator for certain lots sold September 27,1880, for the sum of $40.65, the clerk filed a plea, in substance, that the certificates of purchase were null and void, for the reason that on April 1, 1881, said lots were redeemed from theetax sale by a person named, the owner or agent, for the sum of $60.98, which sum was deposited with defendant, and by him tendered to the petitioner: Held, that as the taxes on the lots for the year 1880 fell due on December 10 of that year, the plea was bad, in not showing the deposit of the taxes of I860, and interest thereon, or their payment by the party attempting to redeem.
    Writ of Error to the Circuit Court of Cook county; the Hon. William H. Barnum, Judge, presiding.
    Messrs. Abbott, Oliver & Showalter, for the plaintiff in error.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a petition for mandamus, to compel the county clerk of Cook county to issue a tax deed for certain lots in Garland’s addition to the town of Winnetka, which were sold for taxes on the 27th day of September, 1880. The lots were sold for the taxes of 1879, and bid off for the sum of $10.65. The taxes for the year 1880, amounting to $31.50, were paid by the purchaser to the town collector on the 8th clay of February, 18S1. The notice required by section 216 of the Revenue act was given. Indeed, the petition showed that the time for redemption had expired, that the lots were not redeemed, and that all the requirements of the statute had been observed which entitled the petitioner to a deed; that after the time for redemption had expired, affidavits in form as required by the statute, together wdth the certificate of purchase, were presented to the clerk, and a deed demanded, which the clerk refused to issue. - To the petition respondent interposed a plea substantially as follows: That petitioner ought not to have a writ of mandamus against him, because he says that at the time said certificates of purchase of the lots of land in said petition mentioned, together with said affidavits, were presented to the defendant, with said request for a tax deed thereon, said certificates were null and void, and without legal force or effect, by reason of the fact that a long time prior thereto, to-wit, on-April 1, 1881, each and all of said lots, in all of said certificates described, were redeemed from said tax sale of September 27, 1880, by one S. H. Ingraham,* at that time the owner or agent of said premises, for the sum of $60.98, and which said sum of money was deposited with the defendant, and by him tendered to said petitioner, and all of which acts and doings were in compliance with chapter 120 of the Revised Statutes of the State of Illinois; and this the defendant is ready to verify, wdierefore he prays judgment, etc. The petitioner demurred to the plea, but the court overruled the demurrer, and as petitioner elected to stand by the demurrer, the court dismissed the petition.

As the plea failed to allege either of these plain requirements of the statute, it was bad, and the court erred in overruling the demurrer.

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

Judgment reversed.


author: Mr. Justice Scott

text:
    St. Patrick’s Catholic Church of Sterling v. John Daly.

      Filed at Ottawa January 25, 1886.

    1. Resulting trust—of the proof required,. To authorize a decree declaring that a priest in charge of a church holds the legal title to certain, lots in trust for the church, and divesting him of the same, it must be satisfactorily proved that they were purchased by him for the church, and with funds that equitably belonged to the church.
    2. Former adjudication-—remandment with specific directions—us determining the right to an accounting. Where a decree was reversed by this court, and the cause remanded, with directions to refer it to the master to state an account for moneys expended by the defendant in the purchase and improvement of lots, it was held, that this was conclusive of the right to have an account taken.
    3. Interest—moneys advanced. Where a priest has advanced money for the use of -his church, he will, under the statute, be allowed the legal rate of interest on the same.
    4. Chancery— imposing equitable terms as condition to relief. Where a party seeks in a court of equity to divest another of the legal title to lots, the court may impose equitable terms on which relief will be granted; and if it appear that the defendant has advanced money for the purchase and improvement of the property, the court, in its decree finding it to belong to the complainant, may properly require the money so advanced to be refunded, with legal interest.
    5. Same—whether a personal decree proper—as, for money s advanced by defendant, on bill to establish a resulting trust. A Catholic priest, before the incorporation of his church, advanced moneys with-which to buy and improve lots, and the church after incorporation, by bill in chancery, sought to have a resulting trust declared and enforced. On cross-bill by the defendant seeking to have an accounting in his favor for his advances and its payment, it was held, that a decree finding the amount advanced by him and making it a lien on the lots, and ordering their sale for the same, was proper, but in so far as it gave a personal decree against the church for any deficiency, after sale of the lots, and awarding an execution for its collection, it was erroneous, as the church, after incorporation, - never assumed any personal liability for the same.
    Writ of Error to the Circuit Court of Whiteside county; the Hon. John V. Eustace, Judge, presiding.

      Mr. George W. Smith, for the plaintiff in error.
    Messrs. Bennett & Green, for the defendant in error.
    Mr. Samuel Whipple Gehr, for the Catholic Bishop of Chicago.
   Mr. Justice Scott

delivered the opinion of the Court:

This case was before this court at a former term, and is reported in 97 Ill. 19. The opinion then delivered contains a sufficiently full statement of the pleadings of both the original bill and the cross-bill, and of the principal facts, to afford an understanding of the case as it now comes before this court. Reference may also be made to the former opinion for a succinct history of the case. The decree that had been rendered by the circuit court was reversed, and the cause re-remanded, with directions that it be referred to the master to state an account, and that each party may, if desired, introduce further proof as to the usages of the church, and as to other questions in the case. Accordingly, after the mandate from this court was sent down, the circuit court, in conformity with directions given, referred the cause to the master in chancery to take and state an account between the parties. Exceptions taken to the master’s first report were so far sustained it was, by the court, referred back to the master, with directions to report again as to certain items, and as to pew rents the court held, under the evidence adduced in the case and under the laws of the Catholic church, a pastor is not held accountable for the same; that for similar reasons he is not held accountable for money received for baptismal or marriage services, and that as to the penny collections, under the laws of the church offered in evidence, the pastor is not held accountable for the amount thereof. As respects certain items the master was directed to report the evidence. Under the direction given, the master made a second report, showing a certain amount due defendant, Daly, for money advanced and expended by him for the benefit of the church of which he was at that time the priest in charge. This last report was corrected in some respects by consent of parties, and in others by the decision of the court, and to the amount found due to defendant by the master, the court added interest at the rate of six per cent per annum. The court found complainant had no right, title or interest in lots 10 and 11, in block 11, and the bill, so far as it rebates to these .lots, was dismissed for want of equity. It was further decreed complainant is entitled to the following real estate described in the original bill,—that is, lots 1, 2, 3 and 7, in block 12,—subject, how-eve'r, to the lien thereon, of defendant, Daly, for the amount found to be due to him for money paid out and expended by him for the purchase and improvement of said lots. The court found, on the cross-bill of Daly, there was- due him for money laid out and expended by him on behalf of the church for the purchase and improvement of lots 1, 2, 3 and 7, block. 12, with interest thereon, the sum of $9819.21, and declared that he-should have a lien" on all of said lots prior and paramount to any interest of complainant in the same, and decreed that unless the church society, within a certain time fixed, should pay to Daly the amount found to be due to him, said lots be sold, as is usual in case of master’s sales, and out of the proceeds he be paid the amount found due to him. It was further ordered and decreed in case the avails of such sales should be insufficient to pay the amount found to -be-due to "Daly, with interest and costs, that the master specify such deficit in bis report, and that Daly have execution against St. Patrick’s Catholic Church of Sterling for the same. Other matters were found by the court in its decree, and orders and decrees made concerning them, and so far as the same may be necessary to an understanding of the decision to be rendered, they will be stated further on, otherwise not.

No controversy now exists as to lots 8, 9/10, in block 12. As respects lots 10 and 11, in block 11, west of Broadway, the court found the church had no right, title or interest in them, and accordingly, as to them, dismissed the amended and original bills. The evidence as to how these lots were purchased, whether by Daly for himself, or for the church, and as to whose money was in fact used to pay for the same, is quite conflicting and in a degree unsatisfactory. Only one thing may be confidently--said as to the evidence in this respect, and that is, it is not so satisfactory as to warrant the court in divesting Daly of the legal title to the lots and placing it in complainant. Before that can be done it should be satisfactorily proved the property was purchased by Daly for the church, and with funds that equitably belonged to the church. That has not been done, and the 'decree as to these particular lots must be permitted to stand.

With that part of the decree which finds lots 1, 2, 3 and 7, in block 12, west of Broadway, belong to the church, of course no fault is found by complainant assigning error on this record. The complaint is, the property was declared to be subject to the lien of Daly for the amount found to be due to him for money by him expended for the purchase and improvement of said lots. This question raises the most important inquiry in the case, and the one about which there is the most seeming difficulty. It is made a point against the present decree, that' Daly stood in no position to demand an accounting from the defendant to his cross-bill,—the church society. It is thought this point was • settled against the position taken, by the previous decision of this court when the case was before it at a former term. The decree was then reversed, and the cause remanded, with directions to refer it to the master to state an account. That implies it is a case where an account should be taken, otherwise no such directions would have been given.

It will be seen the master’s report consists of a great number of items, concerning which the evidence is very unsatisfactory, and is necessarily so in the.nature of the ease. It would be impracticable for this court, in any reasonable time, to analyze the evidence bearing on each separate-item of'-the account stated. That was the appropriate work of the master, and it seems to have been patiently and carefully done by him. If it shall be found the directions given as to the manner of stating the account are correct, no reason is perceived why the report, as corrected by the court, may not stand. All the corrections made to the report of the master were in favor of complainant in the original bill, except the item of interest, and, barring that item, no complaint is made as to such corrections. As has been seen,' the court held, under the evidence adduced as to the laws of the church, the priest ‘in charge is not to be held 'accountable for penny collections and pew rents, and so directed the master; nor is he to be held liable for fees or offerings given for baptismal or marriage services. No serious complaint is made that the priest in charge was not held to account to the church for such fees for baptismal and marriage services, and it seems to be conceded he may do with them as he pleases. But it is confidently maintained he should have been charged with pew rents collected by him,—certainly with the remainder after his support is deducted. The evidence bearing on this branch of the case consisted of writings of persons learned in the law as to usages of the Catholic church, introduced in evidence, and of - the testimony of persons thought to be familiar with such laws and usages. As was said by this court in its former opinion, the usages of the church in this respect are not very definitely proved as to what may be retained by the priest from the funds which may come to his hands. It seems to be conceded by all, the priest in charge is entitled to a decent support out of the incomes from the parish. Perhaps the principal source of income, in this eountry, is from pew rents and other collections. It is from these sources he has his support. But it is said by a writer, “whatever comes to him by baptismal, marriage, or at other times, according to pious and laudable customs, are enumerated among his patrimonial goods, the free dominion of which are conceded to him.” It seems that whatever is'received from such ecclesiastical functions are mere perquisites, which he may spend at his pleasure. They have no connection with his support. That comes, as has been seen, in the United States, mostly from pew rents and other collections. A priest of very large experience testified on behalf of complainant: “The pew rents are supposed to go for the support of the priest, and to pay the necessary expenses of the church. ” The evidence in the record, it is thought, fully warranted the court in holding, as it did, the priest in charge might retain the pew rents and other collections for his support, and to pay the church expenses, which the evidence shows he did. At least under the evidence found in the present record, this court can not say it was error for the circuit court to rule as it did as to pew rents and penny collections. Conforming, as it did, to the directions of the court, the master’s report was properly approved, and the decree upon it in this respect should be permitted to stand.

The master did not, by his second report, allow interest on the amount he found to be due to complainant in the cross-bill, but the court, by its final decree, did allow interest on that amount at the rate of six per cent per annum. That decision is assigned for error. Section 2 of the act entitled “Interest,” provides: “Creditors shall be allowed to receive interest at the rate of six per centum per annum on money lent or advanced for the use of another. ” Here the court found Daly had advanced money for the use of the church or religious society, and no reason is perceived why he may not, under this statute, be allowed the legal rate of interest on money so advanced. The decision might be sustained on the ground complainant is asking relief as to certain property, and the court may impose terms such as may be deemed equitable, on which such relief will be granted. It appears Daly advanced money for the purchase and improvement of the property, and if the property shall be decreed to belong to complainant, equitably, the money should be refunded to him, with interest. In the decision in that respect there is no error.

But the point made against the present decree, that no ■ personal decree should have been rendered against the church corporation for any deficit that may remain after the sale of the property, seems to be well taken. Most, if not all, of the money which it is alleged Daly advanced and expended for the use of the church, was advanced and expended before the corporation had, in fact, any existence. It did not become a corporate body until the year 1876. The present corporation assumed no liability to Daly against the congregation before it became incorporated. The utmost he can claim is a lien upon the property and improvements thereon, which he insists were purchased with his money. The money was not advanced to the corporate body that now exists, and no personal liability exists upon it to refund the advances so made. In this respect the decree is erroneous.

That part of the decree which declares that St. Patrick’s Catholic Church shall be liable for any deficiency that remains after the sale of the property, if any, and awards execution for the same, will be reversed in this court, but in all other respects the decree of the circuit court will be affirmed. Each party will be required to pay its own costs in this court.

Decree affirmed in part and in part reversed.


author: Mr. Justice Tunnicliff

text:
    Chauncey A. Lake v. Milner Brown et al.

      Filed at Ottawa January 25, 1886.

      1. Usury—recovery back after payment by sale of property. If a "debtor voluntarily pays a debt tainted with usury, his remedy to recover back the usurious interest, or obtain any other relief on account thereof, is gone. So if he allows payment of such debt and usury by the sale of his land under a power in a trust deed, he can have no relief as against any usury thereby paid.
    2. Trustee—deed op trust to secure a debt—of a provision in the deed for the appointment of a new trustee. The author of a trust has full power to provide for the appointment of a successor in trust, in case the original trustee or trustees shall refuse to act, die, remove into a foreign jurisdiction, or be removed by some court.
    3. In this case a debtor conveyed land to A in trust, to secure an indebtedness to B, and the trust deed empowered the trustee to sell the premises upon default of payment, and provided that in case of the death of the trustee, or in ease he should decline to act in making sale of the premises as thereinbefore provided, then the said B, (the cestui que use,) or the legal holder of the note or notes secured, should have the option of substituting any other person in his stead, and that the acts and doings of the part)' so substituted should be as binding and valid as if done by the trustee named in the deed. Afterward, A, by a formal writing, duly acknowledged, declined to act, and B, by another writing, duly executed and acknowledged, appointed 0 as trustee in the place of A, and 0 made sale of the premises under the power in the trust deed: Held, that 0 was clothed with all the power to make the sale that A originally was invested with.
    4. Same—effect of not indorsing proceeds of sale on note. Although the proceeds of the sale of land under a trust deed are not indorsed on the note secured, that is no ground for setting aside the sale. Such sale merely amounts to a payment on the debt of the surplus realized after payment of costs. Its indorsement on the note is but evidence of the payment.
    5. Same—saleunder trust deed—subsequent arrangement between debtor and creditor, the latter being the purchaser. On sale under a trust deed, the property was struck off and sold to the holder of the debt thereby secured, for $500 less than the sum due thereon. Pending suit by the purchaser for the possession of the premises, the debtor paid him $300, and a written agreement was entered into, that if the debtor did not, by the next term of ’the court, pay all taxes on the land and pay the purchaser $300 in addition to $100 then paid, the $400 paid should be retained by the purchaser in full payment of the balance due him on his original debt. The debtor failed to comply with this latter agreement: Held, that the creditor, under such agreement, had the right to retain the $400, and that the right of the debtor to any relief from the sale on account of it, if he ever had any, was gone.
    6. Acknowledgment and proof of instruments relating to land—to what instruments the statute applies. The statute (section 21 of the Conveyance act, and other sections,) making “deeds * * * and other writings of or relating to the sale, conveyance or other disposition of real estate, or any interest therein, whereby the rights of any person may be affected in law or in-equity, when acknowledged or proven before certain named officers, ‘evidence, without further proof," is broad enough to embrace, and does embrace, an instrument in writing whereby a trustee named in a deed of trust with power to sell land, declines to act, or an instrument in writing appointing his successor.
    7. Practice—time to object—as to want of probf of execution of instrument. A party can not be permitted to remain silent when an instrument pertinent to the case is offered in evidence, and afterward object that proof was not made of its execution. The objection should be made in time to afford an opportunity of supplying the requisite preliminary evidence.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Kankakee county; the Hon. O. T. Beeves, Judge, presiding.
    The appellant, Lake, on the 16th of July,- 1881, filed his bill in the circuit court of Kankakee county, against Milner Brown, one of the appellees, to redeem the premises therein mentioned, from a sale thereof, under a deed of trust given by Lake to John Magoun, as trustee, to secure to Brown one principal note of .$2000, payable in five years, and ten semiannual interest notes of $100 each, alleging as ground for redeeming, usury; that Burr, who had been substituted by the cestui que use as trustee in place of Magoun, ivas wrongfully so substituted, and therefore had no right to make the sale, and that Brown, after the sale, had accepted of complainant, on his indebtedness, on December 10, 1877, $210, and on January 2, 1878, $90, and had thereby waived the sale. Summons was served on Brown, December 3, 1881. On March 6, 1882, appellant filed an amendment to his bill, charging that Brown fraudulently conveyed the land to one Thomas Baile)', by deed dated August 19, 1881, and that Dailey had executed a mortgage to one George Y. Huling, on the 17th of September, 1881, for $1600. This deed and mortgage are asked to be set aside. Dailey and Huling are made parties, and served with summons March 23, 1882. The trust deed was given July 3, 1872. The sale under it was first advertised to take place on the 9th of September, 1877, but at request of appellant, and upon his paying $20, the cost of re-advertising, it was postponed to October 9, 1877, when the premises were sold to Brown, appellee, for $2160, to whom Burr, the substituted trustee, made a deed. Brown obtained possession of the land by proceeding in forcible detainer, and when he sold to Dailey, turned it over to him. An account is asked of the rents and profits. Dailey entered into a contract of purchase of the land with Brown, July 15, 1881, by which he was to give Brown $2400 for it, and paid $850 down at the time,—$800 of it being on the land, and $50 for commissions to a party who had negotiated the sale. At the time he made this purchase, he had no notice, by Us pendens or otherwise, that Lake any longer claimed any interest in the land. On the contrary, in a conversation he had with appellant before the purchase, he asked him if it was a fact that Brown had offered him the land back for $400 or $500 less than he owed on it, to which appellant replied: “What iu hell do I want with that land. I have sunk $15,000 in that farm, and what do I want with it. When they have sunk as much money in it as I have, then I will be satisfied. ” Dailey, when he received his deed, on the 17th day of September, 1881, and paid the balance of the purchase money, was personally notified by Huling, of whom he borrowed the money, of the pendency of the suit The amount bid by Brown at the sale did not, after deducting the costs and expenses of the sale, pay him his indebtedness, by over $500.

      While the action of forcible detainer was pending on appeal in the circuit court of Kankakee county, appellant and Brown entered into a written agreement, reciting the execution of the deed of trust, the sale under it, the payment by Lake to Brown of the two sums amounting to $300, and of $100 more on the execution of the agreement, and by which it was agreed to let the forcible detainer suit be continued, and that if Lake should pay Brown an additional sum of $300 on or before the first day of the next term of court, and all taxes and the costs of the suit, the sale might be set aside and cancelled and the trust deed remain in force, and the amount due Brown, secured by it, to be $2000, and no more, but if Lake failed to pay the $300 additional, then Brown should retain the $400, in full payment of the balance due him, and have the right to proceed with his suit for the possession of the land. Lake did not pay this $300, and Brown, at the April tferm, 1879, obtained judgment in his forcible detainer suit against him for the possession of the land.
    The case was heard before O. T. Beeves, J., at the January term, 1884, upon bills, answers, replications, exhibits and evidence, who found the equities to be wtith the defendants, and dismissed the bill. This decree was affirmed by the Appellate Court for the Second District, and is brought by complainant, Lake, to this court by appeal.
    Mr. C. A. Lake, pro se:

      Laches does not estop, and no length of time will bar the right of redemption when there is fraud or usury. Marks v. Pell, 1 Johns. Ch. 594.
    Time can not be treated as laches while the mortgagee treats the demand as open, and the act of receiving money after the sale, opens the sale. It nullifies the sale, and restores the former relations of the- parties. The way to terminate such relation is by bill to foreclose. Stoddard v. Whiting, 46 N. Y. 627; Tennery v. Nicholson, 87 Ill. 464; Wood v. Wheeler, 93 id. 153.
    The agreement to continue did not cut off the right of redemption. That can not be restrained or clogged by any agreement. Henry v. Davis, 7 Johns. Ch. 40; Clark v. Henry, 2 Cow. 324; Odell v. Montross, 68 N. Y.
    A sale under a power must be entirely fair. Powers of sale are regarded with jealousy, and sales under them before other rights intervene, will be set aside if not conducted with complete fairness. Rounswell v. Crofoot, 4 Bradw. 671.
    Is it fair for the creditor to appoint the trustee and then buy at his sale, or to sell property worth $6000 for $2160?
    That it was usury for the agent making the loan at the highest legal rate of interest to deduct commissions, see Payne v. Newcomb, 100 Ill. 611.
    Messrs. Williams & Capen, for the appellees:
    The usury, if any in the debt, can not be taken advantage of after the sale. Perkins v. Conant, 29 Ill. 184; Tyler v. Insurance Co. 108 id. 58; Carter v. Moses, 39 id. 539; Manny v. Stockton, 34 id. 306.
    The beneficiary can always provide that in case of the refusal or inability of the trustee to act, he can appoint a successor in trust. West v. Fitz, 109 Ill. 425; Perry on Trusts, sec. 288.
    An agreement to sell on condition can only be enforced upon proof of the performance of that condition.
   Mr. Justice Tunnicliff

delivered the opinion of the Court:

If the appellant had any claim to relief on account of the alleged usury, he must be considered as having waived it by not asserting his rights till after the land had been sold under the deed of trust. By permitting the land to be sold under a deed of trust given by him, if done in pursuance of authority therein contained, and for. the purpose of having the 2iroceeds applied in payment of indebtedness thereby secured, as provided by the deed of trust, it thereby becomes a voluntary payment by the grantor, and by repeated decisions of this court, his remedy to recover back his usurious interest, or obtain any other relief on account thereof, is gone. Tyler v. Massachusetts Mutual Life Ins. Co. 108 Ill. 58, and cases cited.

The objection that there was no right or power in Burr to make the sale as successsor in trust of Magoun, the original trustee, can not be maintained. This deed of trust in terms declared, that in case of the death of the trustee, “or in ease he should decline to act in making sale of the premises as hereinbefore provided, then the said Milner Brown, or the legal holder or holders of said notes, shall have the option of substituting any other person in his stead, and the acts and doings of said party so substituted shall be as effectual and binding as if done by the said party of the second part. ” On the 21st of July, 1877, said John Magoun, by a formal written instrument by him signed and acknowledged in form before a notary of McLean county, Illinois, declined to act as such trustee, and on the same day, Milner Brown, by a proper instrument duly executed, and in form acknowledged before the same notary, substituted and appointed Hudson Burr as trustee in the deed of trust, in the place and stead of said John Magoun. This, in effect, clothed Burr with the same power and authority as though he had originally been named as trustee in the deed of trust. As wras said by this court in West v. Fitz, 109 Ill. 442: “The author of every trust has full power to provide for the appointment of a successor or successors in trust in case the original trustee or trustees refuse to act, die, remove into a foreign jurisdiction, or are removed by a court of competent jurisdiction.”

It is also urged that the court erred in admitting in evidence the paper evidencing the declination of Magoun to act as trustee, and also the one by which Brown appointed Burr as trustee in place of Magoun, because there was no proof of their execution, except the certificate of the notary, and it is insisted that instruments of this kind are not such as notaries are authorized to authenticate under our statute, and therefore his certificate of acknowledgment is not sufficient proof of their execution, and that other proof thereof should have been made. It would be a sufficient answer to say that no objection of this kind was made when these instruments were offered in evidence on the hearing. Such an objection comes too late if made for the first time in an appellate court. A party can not be permitted to remain silent when an instrument pertinent to the case is offered in evidence, and afterward object that proof "was not made of its execution. The reason is, that had the objection been made at the time, the party offering the instrument could, perhaps, have supplied the necessary proof. By not objecting, the party against whom the instrument is offered must be held to admit its execution. But aside from this, section 21 of the act concerning Conveyances, (1 Starr & Curtiss’ Annotated Stat. 580,) declares that “deeds, mortgages, conveyances, releases, powers of attorney, or other writings of or relating to the sale, conveyance, or other disposition of real estate, or any interest therein, whereby the rights of any person may be affected in law or in equity, may be acknowledged or proved before some one of the following courts or officers, namely, ”—and notaries public are among those named. Other sections prescribe the form of certificate, and as to notaries, their seal of office must be affixed, and when compliance is made therewith, such instruments are admissible in evidence. These papers were acknowledged before and certified by the notary in form, and attested by his official seal, and clearly came within the statute as “writings of or relating to the sale, conveyance, or other disposition of real estate.”

The $300 paid by appellant to appellee Brown, after the sale, "was not received by the latter toward the redemption of the premises. Appellant, at the time he paid it, gave no directions as to how it should be applied, and Brown, therefore, had the right to apply it toward the payment of the balance still due him from appellant after the sale. Bat if this was not so, the parties, by their written agreement entered into during the pendency of the forcible detainer suit, stipulated, for a valuable consideration, as shown by the agreement, that if appellant did not, by the next term of court, pay all taxes on the land, and pay to Brown the sum of $300 in addition to $100 paid to him at the time this agreement was executed, then this $100, and the $300 before paid, should be retained by Brown in full payment of the balance due him on his original debt. Appellant failed to comply with this agreement, and appellee Brown, in consequence, became entitled to retain the $400, in accordance with its terms, and the right of appellant to any relief from the sale on account of it, if he ever had any, was gone. The suggestion of appellant that this agreement was simply one for a continuance of the case, (although that was one of the stipulations,) is not warranted by the terms of the instrument. The fact that the indorsement of the proceeds of the sale was not made till some time after the sale, is wholly immaterial. If it never had been indorsed, it would be no cause for setting aside the sale, but merely a payment to that extent upon the note. The indorsement would only have furnished the evidence of the payment.

We have given this case careful consideration, but feel compelled to hold that appellant is not entitled to redeem or have the sale set aside, even if Brown had not sold to Dailey, and it is therefore unnecessary to notice that feature of the case.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Per Curiam :

text:
    Royal E. Barber v. W. B. Hawley.

      Filed at Ottawa January 25, 1886.

      Practice—of presenting and preserving questions of law, on trial before the court without a jury. Where a trial is had before the court without a jury, and no propositions of law are submitted to the court to be passed upon, and no exception is taken to any ruling of the court save as to the judgment, and the judgment is affirmed by the Appellate Court, this court has nothing to review, and will affirm the judgment of the Appellate Court.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Will county; the Hon. George W. Stipp, Judge, presiding.
    Mr. S. W. Randall, for the appellant.
    Messrs. Hill & Dibell, for the appellee.
   Per Curiam :

This is an appeal from a judgment of the Appellate Court for the Second District, affirming a judgment of the circuit court upon a claim for board and services, which originally had been presented in the probate court for allowance against the estate of a decedent.

The record presents no question of law for our decision. In the circuit court the trial was before the court without a jury. There was no proposition of law submitted to be passed upon by the court, and no exception to any ruling whatever of the court, save to the judgment itself. The question arising is one upon controverted facts as to the amount of the allowance, where the decision of the Appellate Court affirming the judgment below can not be reviewed by us.

The circuit court appears to have applied the bar of the Statute of Limitations to the portion of the claim anterior to five years next before the time of the filing of the claim. No legal question was raised in regard to the statute, the only question in respect of it being, whether, under the controverted facts, the proof was sufficient to avoid the bar of the statute as to the part of the claim to which it was applied.

The judgment of the Appellate Court must be affirmed.

Jadgment affirmed.


text:
    George W. Hill v. George F. Harding et al.

      Filed at Ottawa January 25, 1886.

    1. Bankruptcy—proceeding in State court pending application in bankruptcy—judgment after discharge. Where, after verdict and before judgment, in a cause pending in a State court, the defendant files his petition in bankruptcy, the court in which the prior action is pending, on the filing of a certificate of his having been adjudged a bankrupt, on motion of defendant, should stay further proceedings until the bankrupt court passes upon his discharge, and on the discharge being shown, render judgment on the verdict against the defendant, with a perpetual stay of execution.
    2. And where a judgment of the circuit court is reversed for error, in refusing a motion to stay further proceedings, after verdict rendered, until the question of the defendant’s discharge in bankruptcy shall be decided, and remanded with direction to enter a special judgment on the verdict if it shall appear to the satisfaction of the court the defendant had been discharged by the bankrupt court with a perpetual stay of execution, there will be no issue of fact to try, and it is not error to refuse leave to the defendant to file a plea of his discharge. His discharge may be shown without any plea of that fact.
    3. Evidence—as to fact not disputed. Where a defendant’s discharge in bankruptcy is not disputed, it matters not whether a copy of such discharge given in evidence is properly certified or not.
    4. Practice—reversal as to matters occurring after verdict—effect on the verdict itself. The reversal of the judgment of the trial court for error in refusing a motion of defendant made after verdict, finding the issues for the plaintiff and assessing the damages, will not affect the verdict itself, the error having occurred after the rendering of it. The correction of the error will leave the verdict standing, and the proper judgment may thereafter be entered upon it.

      Writ of Error to the Appellate Court for the First District ;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.
    Messrs. Brandt & Hoffman, for the plaintiff in error:
    If the sureties in the recognizance are compelled to pay this debt, Hill will be obliged to reimburse them, and thus be dejirived of the benefit of his discharge in bankruptcy. Page v. Russell, 2 M. & S. 551; Taylor v. Mills, Cowper, 525; Paul v. Jones, 1 Durn. & East, 599; Welsh v. Welsh, 4 M. & S. 333; Buel v. Gordon, 6 Johns. 126; Woodwards. Herbert, 24 Me. 358; Ellis v. Ham, 28 id. 385; McMullen v. Bank, 2 Pa. St. 343 ; Coke v. Lewis, 8 id. 503 ; Comfort v. Eisenbeis, 11 id. 13; Page v. Cole, 123 Mass. 93.
    Does the judgment against Hill, with perpetual stay of execution, render the sureties in the recognizance to dissolve the attachment, liable for the amount of the judgment, or can any judgment be rendered which will render them liable for the same ? That the judgment makes them liable, see Carpenter v. Turrell, 100 Mass. 450; Hamilton v. Bryant, 114 id. 543; Page v. Cole, 123 id. 93; Ray v. Wright, 119 id. 426; Bank v. Taylor, 120 id. 124; Bank v. Higgins, 124 id. 115.
    No personal judgment can be rendered against a defendant after his discharge in bankruptcy. McKay v. Funk, 37 Iowa, 661; Bratton v. Anderson, 5 S. C. 504; Bank v. Taylor, 120 Mass. 124; Payne v. Able, 7 Bush, 344; Martin v. Kilbourn, 12 Heisk. 331; Odell v. Wooten, 38 Ga. 224.
    The court erred in refusing to permit Hill’s plea of discharge to be filed. The plea presented a complete defence, and Hill had a legal right to file the same. Fire Ins. Co. v. Trust Co. 1 Bradw. 391; Drake v. Drake, 83 Ill. 526.
    The court erred in admitting as evidence the paper purporting to be a copy of the discharge of Hill. The records of the United States courts are foreign records, and the verity of them must be tried by jury. Baldwin v. Hale, 17 Johns. 272; Griswold v. Sedgwick, 1 Wend. 126.

      Mr. George F. Harding, Mr. L. J. J. Nissen, and Mr. Wm. H. Barnum, for the defendants in error:
    The circuit court was bound by the directions of this court, and entered the judgment in accordance therewith. The discharge satisfactorily appeared by its production, and the admission of that fact by both parties, and hence there was no occasion for plea, jury, trial or verdict.
    Aside from the mandate of this court, the refusal to allow the plea ivas a matter of discretion, and not the subject of review. Holyoke v. Adams, 59 N. Y. 239.
    A bankrupt discharge is not a bar to any action in any stage, without being pleaded. Holyoke v. Adams, 59 N. Y. 239; Cornell v. Dakin, 38 id. 253; Homer v. Spellman, 78 Ill. 257.
    If the defendant is too late to plead it, either originally or by amendment, the remedy is by motion for a perpetual stay of execution. Monroe v. Upton, 50 N. Y. 593.
    The mandate of this court on reversal ivas an authoritative version of the Federal Supreme Court’s opinion, which it translated into action. That action has been consummated conformably, and is, we submit, conclusive here, as elsewhere. Boggs v. Willard, 70 Ill. 316; Newberry v. Blatchford, 106 id. 592; Siebold v. United States, 12 Pet. 492; Wadhams v. Gay, 83 Ill. 250.
    A general judgment, with perpetual stay of execution, will suffice to charge the sureties, without the enactment of a statute. Holyoke v. Adams, 59 N. Y. 234; Monroe v. Upton, 50 id. 593; Hoyt v. Freel, 8 Abb. Pr. (N. S.) 220; Bump on Bankruptcy, 687; Bank v. Higgins, 124 Mass. 115.
    Where a case has been tried in this court, and remanded, with specific directions to do some act, the court below has no power to do anything but to carry out those directions. Boggs v. Willard, 70 Ill. 316 ; Newberry v. Blatchford, 106 id. 592; Wadhams v. Gay, 83 id. 250.

      The certificate of the presiding judge never was necessary to the due authentication of the decrees and judgments of the Federal courts—least of all, in bankruptcy. Heath v. Hyde, 87 Ill. 91; Murray v. Murch, 2 Hayw. (N. C.) 290; Clayton v. Hamilton, 37 Tex. 269; Adams v. Lisher, 3 Blackf. 243.
    The act of Congress containing that provision among others, applies only to inter-State and territorial judgments, (1 Green-leaf on Evidence, sec. 504, Ducommon v. Hysinger, 14 Ill. 250,) and is not exclusive of any other mode of authentication which the States may think proper to adopt. 1 Greenleaf on Evidence, sec. 505.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action by attachment, brought in 1877, by defendants in error, in the circuit court of Cook county, against George W. Hill, to recover for services rendered as attorneys. The writ of attachment was levied on certain property belonging to Hill, and for the purpose of releasing it from the levy, as provided by section 15, chapter 11, of the Be vised Statutes of 1874, he, with certain persons as sureties, entered into a recognizance conditioned for the payment of the judgment which might be rendered against him in the cause on a final trial thereof. After entering into this recognizance the attachment was dissolved and the property restored to Hill, as provided by the section of the statute supra. Upon a trial of the cause in the circuit court before a jury, on the 12th day of April, 1878, the jury found the issues for the plaintiffs, and returned a verdict in their favor for $3500. The defendant entered a motion for a new trial. On the 22d day of April, 1878, Hill filed his petition in bankruptcy in the District Court of the United States for the Northern District of Illinois, and on the 1st day of May following he was adjudged a bankrupt. On the 7th of May he filed in this court a eertificate that he had been adjudged a bankrupt, and on the 11th day of the same month he entered a motion for a stay of further proceedings in the cause until the court of bankruptcy should pass upon the question of his discharge. The circuit court denied the motion for a stay, overruled the motion for a new trial, and rendered judgment on the verdict. On appeal the judgment was affirmed in the Appellate Court, and the judgment of the Appellate Court was subsequently affirmed here. (See Hill v. Harding, 93 Ill. 77.) The construction of a statute of the United States being involved,- the defendant, Hill, then removed the cause, by writ of error, to the Supreme Court of the United States, and the judgment of this court was reversed, (Hill v. Harding, 107 U. S. 631,) and the cause was remanded for further proceedings in conformity with the opinion. The order of reversal having been filed in this court on the 27th day of September, 1SS3, an order was entered reversing the former judgment of the circuit court, and the cause ivas remanded, and the circuit court was directed, if it was made satisfactorily to appear that since the rendition of the verdict Hill had received his discharge in bankruptcy, the circuit court should then enter judgment on the verdict theretofore rendered, with perpetual stay of execution. On the 24th day of November, 1883, the cause was re-docketed in the circuit court, and Hill apjieared and asked leave to file a plea, in which he set up his discharge in bankruptcy. This the court denied, and the defendant excepted to the decision. The defendants in error then presented to the court what purported to be a certified copy of a certificate of discharge of plaintiff in error, Hill, in bankruptcy, granted by the District Court of the United States for the Northern District of Illinois, and the court, after denying Hill’s request for a jury, and his request that the case should take its proper place on the docket, and wait its regular call for trial, entered a judgment on the verdict of the jury for $3500, with perpetual stay of execution.

We have been favored with an able and elaborate argument from counsel for plaintiff in error, in which it is claimed that the judgment rendered in the circuit court is erroneous. If the judgment rendered by the circuit court followed the mandate of this court, which was predicated upon the opinion of the Federal court, then the judgment will have to be affirmed. If, on the other hand, the judgment of the circuit court did not' conform to the order reversing and remanding, it will have to be reversed.

It may be observed that the cause was not remanded to the circuit court for the trial of any issue or question of fact before a jury. This court had decided that the decision of ■the circuit court denying a stay of proceedings, to await the determination - of the court in bankruptcy on the question of Hill’s discharge, was proper. The writ of error brought before the Federal court for review that decision, and the '■Federal court held that the decision was erroneous, and reversed, and remanded for further proceedings in conformity to the opinion. In the opinion to which the proceedings were required to conform we find the following: “The stay does not operate as a bar to the action, but only as a suspension of proceedings until the question of the bankrupt’s discharge shall have been determined in the United States Court sitting in bankruptcy. After the determination of that question in that court, the court in which the suit is pending may proceed to render such judgment as the circumstances of the case may require. If the discharge is refused, the plaintiff, upon establishing his claim, may obtain a general judgment. If the discharge is granted, the court in which the suit is 23ending may then determine whether the plaintiff is entitled to a special judgment for the purpose of enforcing an attachment made more than four months before the commencement of the proceedings in bankruptcy, or for the purpose of charging the sureties upon a bond given to dissolve such an attachment.” 107 U. S. 633.

There were directions to be followed after the cause was remanded and placed upon the docket for final disposition, and from those directions it seems plain that if it appeared that the bankrupt court had refused Hill’s discharge, then plaintiffs in the action would be entitled to a general judgment against him for the amount the jury had found to be due them.- If, on the other hand, Hill had received his discharge in bankruptcy, it was not the duty of the court to refuse to render a judgment of any character against him, but in that event the court might determine whether the plaintiffs were entitled to a special judgment, for the purpose of preserving rights acquired in an action by attachment commenced more than four months before any proceedings were instituted in the bankrupt court.

In the remanding order which this court entered for the direction of the circuit court, where a final disposition of the case was to be made, the order required that court to enter a special judgment on the verdict, if it appeared to the satisfaction of the court that Hill had been discharged, with a perpetual stay of execution. This, as we understand the opinion of the Federal court, was a full compliance with the directions of that court. But it is said in the argument, “if the sureties in the recognizance are compelled to pay this debt, Hill will be obliged to reimburse them,' and will thus be entirely deprived of the-benefit of his discharge in bankruptcy, if he has one.” The sureties of Hill on his recognizance are not before the court, and it will be "time enough to determine their rights and liabilities, and the rights and liabilities of Hill to them, when a proper case presents those questions for determination. The only question presented by this record is, whether the judgment rendered in the circuit court was the proper judgment to be rendered in the case.

- Counsel for plaintiff in error, in their argument, ask this question: Does the judgment against Hill, with perpetual stay of execution, render the sureties on the recognizance to dissolve the attachment, liable for the amount of said judgment, or can any judgment be entered which will render them liable for the same ?—and it is insisted that this is a question it is necessary now to decide. We only regard it necessary now to determine what kind of a judgment was proper to be rendered. The ultimate effect of that judgment upon parties not before the court, we do not understand to be a question fairly presented by the record, and what might be said in this case upon that point would be obiter dictum in any subsequent suit or proceeding against the sureties.

It is also claimed that the court erred in refusing to permit Hill’s plea of bankruptcy to be filed. The cause was not remanded for trial. That was not the object or purpose of the remanding order, so that no necessity existed for making any change whatever in the pleadings. The fact that Hill had received his discharge in bankruptcy, could be made to appear as well without pleading that fact as if a plea had been filed. Nor was there any fact to be tried by a jury, as claimed in the argument.

It is also claimed that the court erred in admitting in evidence the paper purporting to be a copy of the discharge of Hill in bankruptcy. The objection urged to the introduction of the evidence is, that the copy of the discharge was not properly certified. Whether the paper was properly authenticated or not, was a matter of little moment. It was a fact not in dispute, that Hill had received his discharge. Counsel for Hill undertook to plead the fact by special plea, and when the same fact was proven by counsel for. defendants in error, without a plea, it is difficult to see upon what ground objeer tion can be raised to the evidence. That Hill had received his discharge seems to have been conceded by both sides.

It is also claimed that the court erred in entering judgment against Hill. It is said that there was no verdict to enter judgment upon,—that it had been merged in judgment, and-when that judgment was reversed, that ended both judgment and verdict. It will be remembered that after the verdict was obtained, and before judgment upon it, Hill entered his motion for a stay of proceedings until the bankrupt court should pass on his discharge. This application the court denied, and this decision in the Federal court was held to be erroneous. Now, the correction of that error would leave the verdict standing as it was before the court overruled the application, and all the court had to do was to receive evidence of the discharge, and then render a proper judgment on the original verdict, which, as we understand the record, was the course pursued by the circuit court.

A motion was entered to dismiss the writ of error, but we perceive no merits in the motion. Whether the court erred in the rendition of the judgment, was a question which plaintiff in error had the right to present for determination.

The judgment will be affirmed.

T , ^ ~ 7 Judgment affirmed.

This record was assigned to Judge Dickey to prepare an opinion, but he failed to do so, and the cause was re-assigned at the November term, 1885.