author: Mr. Justice Walker

text:
    Mary M. Payne et al. v. George W. Newcomb et al.

      Filed at Ottawa November 10, 1881.

    1. Agency—whether of borrower or lender of money. A loan agent who is required, to learn the situation of the property given in security for money loaned, and examine and ascertain the title, and who is liable to the lender for any loss he may sustain for any mistakes made in examining the title, or from over-valuation of the property, is the agent of the lender in making the loan of money, notwithstanding he is to be paid for his services by the borrower alone.
    2. Same—notice to principal that his agent is charging a commission on a loan effected by him. Where it is understood between a moneylender and a loan agent that the latter, in effecting a loan from the former, is to get his commissions from the borrower, as compensation for his services in examining the title to the property given in security, etc., the lender will be chargeable with notice of the commissions paid to his agent, the same as if paid directly to him, and by him paid to the agent.
    3. Usury—in commissions paid to agent. Where a loan of money is made through a loan agent for the highest legal rate of interest, under an arrangement between the lender and the agent that the latter is to impose upon the borrower the payment for his services in examining the title to the property given in security and ascertaining its value, and the agent deducts from the sum loaned a commission of five per cent, and a further commission of two and a half per cent for procuring an extension of time of payment, the exacting and payment of such commissions will render the loan transaction usurious.
    4. Same—when it may be deducted. Usury paid with the principal cannot be recovered back, but as long as any portion of the principal remains upon which the usurious interest accrued and was paid, such usurious interest may be deducted from or set off against the remaining principal, and this can not be prevented by a settlement between the parties finding the amount due, which includes usury.
    5. Settlement—not conclusive as to usury therein. While, generally, a settlement finding the amount due is conclusive upon the parties unless impeached for fraud or mistake, the defence of usury is an exception to the rule, and any items of usurious interest included therein, so long as any part of the principal debt remains unpaid, may be deducted or set off against the principal.

      6. Chancery practice—'reference to master. Where a bill in chancery involves numerous transactions of a somewhat complicated character in regard to the facts, it is highly proper that the case should be referred to the master in chancery to state and report an account'thereof to the court.
    Writ op Error to the Appellate Court for the Second District;—heard in that court on appeal from the Circuit Court of Livingston county; the Hoñ. Franklin Blades, Judge, presiding.
    Mr. E. F. Bull, and Mr. L. Gr. Pearre, for the plaintiffs in error:
    This court has frequently held, where accounts involve large sums of money and are intricate, that the case must be referred to the master to render a concise and accurate statement, and it will not be permitted that this labor be imposed upon the court, even by stipulation of the parties. Moshier v. Norton, 83 Ill. 523; Moss v. McCall, 75 id. 190; Steere v. Hoagland, 39 id. 264; Bressler v. McCune, 56 id. 475; Riner v. Touslee, 62 id. 266; Groch v. Stenger, 65 id. 481.
    The testimony of Newcomb is of itself sufficient to condemn this transaction as usurious. That when the agent making a loan, with the knowledge or consent of the lender, takes from the borrower pay for his services, the transaction is usurious, counsel cited Philo v. Butterfield, 3 Neb. 259; Cheney v. White, 5 id. 261; Rogers v. Buckingham, 33 Conn. 81.
    Mr. Charles H. Wood, for the defendants in error:
    If a party voluntarily pays a principal sum and usury upon it, the matter is ended, and no recovery can be had as to the usury paid. Hadden v. Jones, 24 Ill. 381; Tompkins v. Hill, 28 id. 519.
    So, when an old transaction is settled and closed, and a new loan made, the borrower will not be allowed to set up usury in the former transaction as against the new loan. Puterbaugh v. Farrell, 73 Ill. 213.

      As Newcomb, in making the various loans, was acting for the borrower, he had the right to charge the commissions, and his retention of the same will not make the contract usurious. Phillips v. Roberts, 90 Ill. 493; Ballinger v. Boarland, 87 id. 513.
    If a borrower, without an original agreement, instead of paying the legal interest agrees to pay interest thereon, as well as on the principal, for further forbearance, it is legal, and not usurious. Haworth v. Huling, 87 Ill. 23; Rodes v. Blythe, 2 B. Mon. (Ky.) 335.
    A note given for interest upon arrears of interest is not usurious. Stewart v. Petrie, 55 N. Y. 621; Camp v. Bates, 11 Conn. 487; Wilcox v. Howland, 23 Pick. 167.
   Mr. Justice Walker

delivered the opinion of the Court:

Complainant Mary M. Payne was the owner of about 400 acres of land in Livingston county, and in July, 1867, she and her husband wishing to procure a loan of $2000, applied to Newcomb, a loan agent in Chicago. He loaned them the money, took their note, payable to Herrick Stevens in two years, with ten per cent interest, semi-annually. To secure the loan they executed a trust deed for the land to one Pierce, with the usual power of sale. Complainants subsequently procured other loans from Newcomb, and gave similar notes and trust deeds on the land. When each loan was made, Newcomb deducted from the amount five per cent, which he claimed as a commission for procuring the loan. There were several extensions of the time for payment, and when they were made he charged two and a half per cent, as he claims, for procuring them. When interest was not promptly paid it was compounded at the rate that the notes bore. Complainants claim to have borrowed no more than $6630, and Payne so testifies, and to have paid in all $5800, and yet Newcomb, on the 1st of November, 1877, furnished a statement in which he claimed there was still due $11,967.17. It is claimed that Newcomb, in making these loans, was Stevens’ regular agent; that being such, he made the loans and retained the commissions with the knowledge and approval of Stevens.

The bill was filed to enjoin a sale of the land under the power in the trust deeds, and for an account to ascertain what is equitably due after deducting usury and illegal charges. On a hearing the court dismissed the bill, and-complainants appealed to the Appellate Court for the Second District, where the decree was affirmed. They thereupon bring the record to this court on error, and urge a reversal.

Defendants in error insist Newcomb was not the agent of Stevens when the several loans were made, but was the agent of plaintiffs in error, and had a legal right to charge them for such services,—that Stevens is in nowise responsible for such acts. Newcomb testifies that at the time these several loans were made, it was a part of his business to loan money for different persons upon commission. He further testifies: “In making loans in this State, in the usual course of business, a loan agent, for the commission he gets, has to first find the money, learn and know all about the property, often go on it, examine the title, and see to the collection of the interest and principal, when due. If the title proves defective, and it is shown that the agent has not been careful enough, or should have known about the defects, before making the loan, or if the property is valued too high, whereby losses ensue, it is understood that the agent makes himself personally liable. * * * I had to submit to him the applications for every one of these loans, and afterwards sent him Payne’s letters. I became his agent immediately after he agreed to make the loan, in looking after it. I stated in my dire’ct examination that if I made any mistakes' in examining the title he would have held me for it. As for the value of the property, I submitted to him all the evidence I had, and he decided for himself. So far as drawing the papers and examining the title is concerned, he entrusted the matter to me. All moneys were delivered through me to the borrower. I often made extensions without consulting Stevens at all, and if he had objected to the. extensions, I would have been compelled to borrow the money from other parties and protected Mr. Payne. Don’t think I ever consulted with Stevens in regard to those extensions. Don’t know whether he ratified what I did in that particular or not. Don’t know whether he ever knew that the extensions were made. I took the responsibility myself. In a considerable degree he left these matters with me, to deal with according to my own judgment. * * * In making these loans Herrick Stevens never agreed to and never did pay me anything, and it was always understood that I was to get my money from the borrower. ” He further testified that he had been a loan agent since 1854; that he commenced making loans for Stevens in that year, and had so continued up to the time he testified—more than twenty years.

This evidence of Newcomb establishes the fact that he was Stevens’ agent, beyond all dispute. He, however, says he was the agent of Payne before the loan, and of Stevens after-' wards; that an agent has to find the money, learn the situation of the property, examine and ascertain the title, and see to collecting the principal, interest, etc; that if the title proves defective, or the property is valued too high, and loss ensues, it is understood the agent renders himself personally responsible. We may ask, liable to whom? To his principal, of course. If the agent of the borrower, when making the valuation and examining the title, over-values the property, or the title proves defective, what possible loss can result to the borrower ? Then he must be liable to the lender, and if so, it can only be because he is his agent.' And New-comb proves this by his own testimony. He says he had to submit the application to Stevens, and. if he had made any mistakes in examining the title, that Stevens would have held him liable. Why should Stevens hold him liable for such losses if he was the agent of Payne until the loan was completed, and the agent ■ of Stevens afterwards, as he testifies ? If liable to Stevens for such mistakes, it was because, and only because, he was his agent; and that he was, in the examination of the property, fixing its value and determining the character of the title, we entertain no doubt. It would be absurd to suppose Stevens would loan his money on the valuation fixed and the title reported by Payne’s agent.

From all of this testimony we are compelled to believe that Newcomb was the agent of Stevens from the time the application was made for the loan. The whole transaction is not susceptible of any other construction. It is apparent that Stevens regarded and relied on Newcomb as his agent, and would have.held him liable for loss growing out of neglect of duty. Newcomb testifies that Stevens would have held him liable for a mistake in examining the title. If so, then he was Stevens’ agent as well before as after the loans were made, and no such distinction can be reasonably drawn as that Newcomb was Payne’s agent before and Stevens’ after the loans were made.

Did Stevens know that Newcomb was charging for his services, and collecting it from the borrower? Newcomb says that it was the understanding he was to get it of the borrower, and that establishes the fact beyond all cavil. Were these payments of commissions of benefit or profit to Stevens ? They unquestionably wTere, as they paid his agent for long continued and valuable services rendered by New-comb for him. No one will believe that Newcomb thus incurred liability to Stevens, and rendered skillful and valuable services for him- for more than twenty years, as a mere gratuity. It was not so understood. Newcomb says he was to get his pay from the borrower. Stevens then paid what he owed to Newcomb by requiring the agent to impose it on the persons to whom loans were made. The arrangement amounted to no more or less than requiring the agent to loan for a per cent sufficiently high to yield Stevens the highest rate of interest allowed by the law, and to pay the agent for his responsibility, labor, skill and trouble. In effect the transaction is the same as had the loan been made at fifteen per cent, and ten had been paid to Stevens and five to Newcomb. This was the result which was by the parties intended before the inception of the transaction. It was in pursuance of an arrangement of the lender and his agent.

Again, we are strongly impressed that there is included a large amount of usurious interest in the claim of the balance due on these loans, as well as compound interest. The statement rendered by Newcomb contains a charge of $319.19' for interest on interest, and another charge for his commissions of $545.50, and from the amount lie states was loaned, and admits was paid, we must suppose a large amount of commissions had been paid, also interest on interest. When over $12,000 was claimed to be due when Newcomb testified, it must be that there had been deducted from payments made a large sum for such items, or for some other illegal charge. We are of opinion that the evidence shows that the amount claimed contains usurious charges, and that usury has been charged and retained.

It is, however, claimed, that Stevens is not liable for what Newcomb retained and charged for what is called commissions,—that he had the right to charge any sum he chose, and that would not render the loan usurious. Had Stevens not known that Newcomb was making such charges, it may be that he would not have been affected by them.' But here it was agreed between Stevens and Newcomb that the’latter should charge a commission of the borrower to pay him for his services. Stevens obtained the services of Newcomb. They were of value to him, and no one will pretend that Newcomb rendered them as a gratuity. They were rendered for Stevens, and they were paid for by him by indirectly charging the amount to and requiring the borrower to pay it, and this, too, by the express authority of Stevens. Had he directed Newcomb to loan at fifteen per cent for the first year, and ten per cent for each succeeding year, and to retain ' five per cent on the loan for the first year, and two and a half per cent for renewals and extensions, and to retain the extra per cent above ten per cent as compensation for his services, would any one say that was not usury ? And in what does the transaction differ by the form given it by the agreement of the parties ? In each case Stevens would get Newcomb’s services, and compel the borrower to pay for them.

There is no more familiar rule in the law than that the usury laws can not be evaded by mere pretences, shifts, or evasions. This rule runs through all of the books, and requires tSe citation of no authority in its support. The policy of the statute is to protect the weak and necessitous from the oppression of the strong, and to sanction such transactions as this would be to defeat that policy. Courts have no right to judge of the policy, but must enforce the law as they find it. Whenever deemed proper, the General Assembly will change the policy by modifying or repealing the statute, but until so modified or repealed we have no power to alter or change its provisions.

The Supreme Court of Nebraska say, it is a well settled rule of law that will not be questioned, “that in all cases where a person employs another as his agent to loan money for him, and places the funds in the hands of the agent for such purpose, the principal is bound by the act of his agent; and if the agent charges the borrower of such money unlawful interest, or even demands and receives from the borrower a bonus for such loan, and appropriates it to his own individual use, either Avith or without the knowledge of the principal, the principal is affected by the act of the agent. In contemplation of law the acts of the .agent are the acts of the principal, because the nature of the business which he has placed in charge of his agent furnishes the means of violating the law. In such business transactions by agency there can not be an agreement between the lender, through the agent, and the borrower, and a separate, distinct contract between the agent and borrower, because it is in consideration of the loan that the unlawful interest or bonus is paid, and hence the whole transaction must be a single indivisible proposition,—it is one contract only. ” Philo v. Butterfield, 3 Neb. 256. And to the same effect are the cases of Cheney v. White, 5 Neb. 261, and Cheney v. Woodruff, 6 id. 151. In this last case, where the agent received from the borrower, a note and mortgage for the bonus or commission for making the loan, it was held that it tainted the loan with the vice of usury.

The Court of Appeals in New York, by a divided court, lay down as a rule in such cases, that a bonus received by the agent above the legal rate of interest, without the knowledge, consent or sanction of the principal, and under circumstances where no such knowledge, sanction or consent can be reasonably inferred, will not render the contract usurious. Condit v. Baldwin, 21 N. Y. 219. The question was again before the court in Bell v. Day, 32 N. Y. 165, and the rule was sanctioned by a divided court, and partly on the rule of stare decisis. A majority were against the rule, but two of the judges felt bound by the case of Condit v. Baldwin, supra, otherwise the fact the agent received the bonus or commission would have been held to taint the transaction with usury even without the knowledge or assent of the lender, as was held by the Nebraska court.

This is, we believe, as far as any court has gone in that direction. And Tyler, in his work on Usury, p. 170, says that the question may be regarded as settled in that court; but from the strong and able and well fortified opinions of the dissenting judges it is doubtful whether the rule will be readily assented to by the courts of other States. That author lays down the rule, at page 156, that “if the agent, in good faith, makes the loan for another, and exacts a bonus besides the legal interest, for his own benefit, without the authority or knowledge of the principal, the loan is not thereby rendered usurious. ”

In Rogers v. Buckingham, 33 Conn. 81, it is said: “This would have been unquestionably an usurious loan if made by David Bulkley. It was in fact made by his son, as his agent. The question in the case is therefore one of .authority. If the loan as made was authorized originally by David Bulkley, or was subsequently and intelligently ratified by him, it was usurious; but if the additional sum of ten dollars was exacted by and paid to the agent for the use and benefit of the agent only, without prior authority from the principal or subsequent knowledge and ratification by him, it was not usurious. It is not found as a fact that the agent was authorized to take the usurious excess. Such authority will not be presumed when the agency is special, and limited to a single transaction. It may be presumed when the agency is general, and embraces the business of making, managing and collecting the loans of a moneyed man; and the facts found show such an agency in this case. But it is a presumption of fact and may be rebutted, and whether it was or not in this case, it was the duty of the auditor to determine. * * * And we think that the peculiar and distinct manner in which the ten dollars excess was agreed to be paid, in connection with the other facts found, would have justified, the auditor in finding that it was an unauthorized exaction by the agent for his compensation, and must have been so understood by the borrower. ”

These cases all recognize the rule that if the bonus or commission is taken by the agent with the consent, or by authority, or with the knowledge of the principal, or if, without his knowledge, authority or consent, he afterwards ratifies the act of the agent, knowing the facts, the loan must be treated as tainted with usury. The rule is reasonable, and tends to prevent the evasion of the provisions of the law. It is true the rule of the Nebraska court is broader, but embraces the rule of the other courts.

In the case of Muir v. Newark Savings Inst. 1 Green, (N. J.) 537, it was held, that if an agent in making a loan accepts from the borrower a bonus above the legal rate of interest, it will not render the transaction usurious unless the fact was known to the lender, or he received the benefit of the bonus. Neither knowledge by nor profit to the lender was proved, and hence the case was held not to fall within the rule.

We are referred to the case of Ballinger v. Bourland, 87 Ill. 513, as announcing a different rule. This is a misapprehension of the scope of the decision. In that case, Bourland lived in Peoria, and he, as the agent of Ballinger, procured a loan of $17,000 for him, and charged Ballinger a commission of five per cent on that sum for procuring the loan, and $100 for going to Chicago and obtaining a release of the premises from a mortgage on them of $16,000, which charges Ballinger paid to Bourland. The court say: “There appears but the simple transaction itself, without any pretence by the testimony that the insurance company was in any way privy to receiving the money by Bourland, or that the agreement therefor was with the knowledge or authority of the insurance company, or that it derived any benefit therefrom. ”

In that case the insurance company was the lender and Ballinger the borrower, and nothing appears to show Bourland was the agent of the company. The opinion proceeds on the ground that the insurance company was in no way privy to the payment by Ballinger to Bourland of the commission and the $100 for his services in obtaining the release of the premises from the mortgage, or. that the agreement was with the knowledge or authority of the lender, or that it derived any profit therefrom, thus negatively asserting that had the lender been privy to the agreement or it had been made with the knowledge or authority or to the profit of the lender, the transaction would have been usurious. That case falls far short of justifying the transaction in the case at bar. It may not announce the rule as broadly as other courts, but it contains nothing that sanctions the taking of a commission or bonus by the agent with the privity, knowledge or consent of the principal. We are not required to go the length of the Nebraska cases to condemn this transaction.

We are also referred to the case of Phillips v. Roberts, 90 Ill. 492, as an authority in favor of defendants in error. In that case Phillips was a loan broker, and as such had loaned to one Benden a sum of money, and charged and received from him §150 as commissions. Roberts claimed that under an agreement existing between him and Phillips he was entitled to §50 of the commissions thus received, for having taken Benden to Phillips as a customer. Phillips refused to pay, and Roberts sued him to recover the amount, and it was held he might recover. That case in nowise involved the question under discussion in this case, and consequently is not applicable to its facts. Roberts had contracted with Phillips, and his contract in nowise involved any question of usury between the borrower and lender. Whether there was usury or not, could in nowise affect the contract between Roberts and Phillips.

It is insisted, that plaintiffs in error, having come to a settlement and agreed upon the amount that was due, are estopped thereby to claim that any portion of the amount thus found due embraces usurious interest. Whilst such an accounting in regard to ordinary business transactions is conclusive on the parties unless impeached for fraud or mistake, the defence of usury is an exception to the general rule. If such settlements were held to be conclusive, then the statute would be a dead letter. The simple promise to pay the principal and usurious interest would be an admission that the borrower owed the amount, and would be equally conclusive, and cut off the defence. The rule in this court is, that usury paid with the principal can not be recovered back, but so long as any portion of the principal remains, out of or in connection with which the usurious interest accrued, it may be deducted from or set off against such principal. The cases of Hawhe v. Snydaker, 86 Ill. 197, Mitchell v. Lyman, 77 id. 525, Peddicord v. Connard, 85 id. 102; Jenkins v. Greenbaum, 95 id. 11, House v. Davis, 60 id. 367, Hadden v. Innes, 24 id. 381, Farwell v. Meyer, 35 id. 41, Saylor v. Daniels, 37 id. 331, and Jenkins v. The International Bank, 97 id. 568, announce and fully establish this rule.

Owing to the number of transactions involved, and the somewhat complicated facts and items in this case, it is highly proper that it should be referred to a master to state and report an account to the circuit court.

For the errors indicated the decree of the Appellate Court is reversed and the cause remanded.

Decree reversed.

Mr. Chief Justice Craig : I do not concur in the decision in this cause.


source: Caselaw Access Project

author: Mr. Justice Mulkey

license: Public Domain

text:
    William Cissna v. Eben S. Walters et al.

      Filed at Ottawa November 10, 1881.

    1. Evidence—to overcome sworn answer. A sworn answer to a bill in chancery, in which the defendant’s oath is not waived, is evidence, so far as it is responsive, and must be overcome by other evidence, or it will prevail.

      2. Same—general statements controlled by particular facts •stated. Where a party or witness makes a general statement, which, from its very nature, must consist in a large degree of mere matter of opinion, and in the same connection makes a specific' statement of fact relating to the same subject which is inconsistent with the general statement, the latter must be considered as modified and controlled by the subsequent specific statement.
    3. Mabbied women—wife’s money belonged to husband before the Married Woman’s act. Under the law prior to the Married Woman’s act of 1861, any money coming to a married woman became that of her husband, and any promise to pay it to her by the husband in case it was expended for the family is not enforcible, either at law or in equity.
    4. In 1842, a wife received $400 from her father’s estate, which was expended for the benefit of the family on the promise of the husband to repay the same, which he did repay her in 1852, and the money so repaid was used in the purchase of lots by the husband in his name, which property he improved, and on the sale of the lots in 1867 for $1200, that sum was paid to her, to be used in discharging a mortgage on a tract of land bought by him in his own name, the balance of which was paid by money borrowed by him, he giving a deed of trust on the land as owner, in which his wife joined relinquishing her dower, "he making the improvements thereon, and the title ■ remaining in him all the time until a short time before the recovery of a judgment against him, when he conveyed the same to the wife. It was held, on creditor’s bill to set aside the conveyance to the wife, that the land,' not having been bought and paid for with the wife’s money, was subject to the payment of the judgment against the husband.
    Appeal from the Circuit Court of Iroquois county; the Hon. Franklin Blades, Judge, presiding.
    Hr. G. B. Joiner, for the appellant,
    after stating the facts, made the following points:
    1. The repeated averments in the answer that the wife’s money bought and improved the land in Kendall county, as also the land in question, amount to nothing, when the facts above stated in the bill and answers are admitted.
    2. Prior to the act of 1861, by the marriage the property and earnings of the wife became absolutely vested in the husband, and the increase thereof was the property of the husband. 65 Ill. 470; 71 id. 307.
    Then, if the Kendall county property was conveyed to the husband, and occupied by both as a residence, even if paid for by the money he received from her, it became absolutely his property.
    It remained in his name until the year 1867, when they came to Iroquois county and bought this land. There is no proof that any money went to pay for this land, except $300, part of the proceeds of the Kendall land, the money borrowed on the land, and the rents and profits of the same, and perhaps the $200 the husband had when he came to Iroquois.
    The wife is bound to prove that she paid for the land from money other than that derived from her husband. 71 Ill. 307.
    Even where a wife advances money to her husband, with which he engages in trade, such capital and its fruits in the business will be subject to the husband’s debts. Watterman v. Price, 47 Ill. 22; 67 id. 164; 86 id. 74.
    Mr. James Fletcheb, for the appellees,
    after stating and commenting upon the facts, made the following points:
    1. The complainant has offered no evidence in support of his bill, or to contradict the defendants’ answers, or their testimony.
    2. When the answer is sworn to, and it denies the allegations of the bill, and sets up a defence which is a complete answer, the complainant must produce evidence to sustain his bill and overthrow the defence.
    3. The courts of this State have regulated the rights of married women in a favorable light since the law of 1861. Sweeney ex rel. v. Dawson et al. 47 Ill. 450; McLowery et al. v. Partlow, 55 id. 340.
   Mr. Justice Mulkey

delivered the opinion of the Court:

On the 24th of December, 1877, the appellant, William Cissna, commenced an action in the Iroquois circuit dburt, against Eben S. Walters, appellee, and his son, William Walters, to recover the amount of a promissory note .made by them to appellant. On the 25th of November of the following year a final judgment was entered in the action against the defendants, and in favor of the plaintiff, for $234.33. After the making of the note upon which this judgment was rendered,, and but thirteen days before the commencement of the suit, Eben S. Walters conveyed to Mary Walters, his wife, certain real estate in Iroquois county, which had previously, from the spring of 1867 up to that time, appeared upon the records of deeds for that county as the individual property of the said Eben, during which time, as also appears from títe records, the said Eben had,'on different occasions, executed mortgages and deeds of trust upon the premises in question to secure his individual loans and indebtedness, in all of which his wife had joined as a party, for the purpose of relinquishing her dower therein. It further appears that the premises in question are the only real estate which, at the time of the conveyance to his wife, stood upon the register of deeds in his own name. An execution having been issued on the above judgment, and returned nulla bona, appellant, on the 19th of August, 1879, filed in the Iroquois circuit court the present bill against appellees, for the purpose of subjecting the premises in question to the payment of the above judgment, on the alleged ground that said conveyance was without any valid consideration, and fraudulent and void as against appellant.

' Appellees resist the case made by the bill, principally upon the alleged ground the premises in question were originally purchased for the said Mary Walters, and that the purchase money, so far as the same had been paid, was furnished by her out of her own separate estate, and that the making of the deed to the husband instead of the wife, as was intended, was the result partly of inadvertence or misapprehension on the part of the grantor, and in violation of the husband’s express instructions.

There was a hearing upon the merits in the circuit court, resulting in a decree dismissing appellant’s bill, and he has brought the record here for review.

The bill in question is a creditor’s bill, and most of the facts essential to sustain it are not controverted. The vital question in this case, and upon which its determination chiefly depends, is whether the consideration paid for the land in controversy, so far as it has been paid at all, was in contemplation of law furnished by the husband or the wife. If by the latter, the decree of the circuif court was proper, and should be affirmed; if by the former, it was improper, and should be reversed. The bill did not waive the oaths of the defendants, and they having answered under oath, the answer must be accepted as true, for it is not claimed that there is any evidence, outside of the answer, sufficient to overcome its statements of facts, so far as they are responsive to the material charges in the bill. In short, if the bill can be maintained at all, it must be done by the evidence which the appellees and their own witnesses have furnished. As already remarked, most of the material facts charged in the bill are admitted by the answer. That the husband was indebted to appellant at the time of the conveyance by him to the wife ; that the judgment for such indebtedness was subsequently obtained against the husband; that an execution was sued out on such judgment and returned nulla liona; and that the husband, during the existence of such indebtedness, conveyed the property in question to the wife, are facts fully established by appellees’ answer, and it only remains to be seen whether the new matter set up by way of avoidance of the case thus admitted on behalf of appellant is in law sufficient to defeat it,—or, in other words, have the appellees, by their own showing, established the hypothesis that the money paid on account of the purchase of the land was in contemplation of law the money of the wife ?

We think not. It is true that the answer states, in general terms, that the purchase money did belong to the wife, and this statement is repeated in their testimony as witnesses, and if nothing further appeared in their answer or testimony we would have no hesitancy in saying that a sufficient defence was shown to the bill. But such is not the case. Appellees, both in their answer and in their testimony, in attempting to show how the wife acquired this purchase money, clearly show' that it belonged to the husband, and not the wife. Where, as in the present case, a party or witness makes a general statement, which, from its very nature, must consist in a large degree of mere matter of opinion, and in the same connection makes certain specific statements of fact relating to the same subject which are inconsistent with the previous general statement, such general statement must be regarded as modified and controlled by the subsequent specific statements.

Whether the moneys paid for the land in controversy belonged to the wife under the specific state of facts testified to by appellees, presents a pure question of law, about which equally intelligent and honest witnesses might arrive at directly opposite conclusions; hence it would be exceedingly dangerous to accept as absolutely true the opinion of a nonprofessional witness upon such a question, however honest and intelligent he might be.

The specific facts relied upon to show the purchase money belonged to the wife, as appears from the answer and the testimony of appellees, are in substance as follows: The parties were married and commenced housekeeping in the State of New York in 1842. At the time of their marriage, or in a short time after, the wife received from the estate of her father about $400, which, by agreement between them, was to be expended by her, so far as was necessary, in fitting them up for housekeeping, and giving them a stal’t in their married life. In consideration of these outlays to be made by her, the husband promised to reimburse her whenever he should be able to do so, with interest. In 1852 the parties moved to this State, and settled in Kendall county. Before coming here the husband received from his father’s estate $1000, out of which he refunded to her, with interest, the $400 advanced by her for the purposes above stated, which amounted altogether to $700. This money, according to the testimony of the husband, which is not controverted, was expended in 1855 in the purchase of village lots in Millington, Kendall county, this State, upon which he in the following year procured lumber and built a house, the work being done by himself. The family resided upon these lots from 1856 to the time of their removal to Iroquois county, in 1867, when they were sold for some $1200. The title to these lots was originally taken and remained in the name of the husband alone, till the time of their sale, as just stated. This $1200 was paid into her hands by the husband, to be used in discharging the mortgage given by him on the land in controversy to secure the unpaid purchase money, and $500 of this sum was paid at the time of the sale, and the balance some time afterwards.

Speaking of the land in controversy, and how it was paid for and improved, the husband says: “My impression is, that of the $500 received for the place up there (meaning the house and lot in Kendall county), she expended $300 on the- place, and gave me $200 to come down here with and do the work, and William gave the money to my credit. ”

The answer states “that when the deed arrived, Mary paid to said Wells (the party from whom the land in controversy was purchased), out of her own money, ivhich she had obtained from the sale of her house and lots in Kendall county, about $325, but the exact sum they have forgotten. ”

With reference to any subsequent payments the evidence is vague and unsatisfactory, but it substantially appears that whatever were made, were in the main, if not altogether, made with borrowed money, to secure which there is now an outstanding deed of trust on the land in controversy, executed in the name of the husband as owner, in which the wife joins for the purpose of relinquishing her dower, as in other conveyances heretofore mentioned, which indebtedness is evidenced by a note signed by the husband and wife. The house upon .this land was built by the husband, and he and his family have been residing on it ever since, during all which time the title stood in his own name, until a few days before the commencement of the suit by appellant against him and his son, as heretofore stated, and the only substantial payment which appears to have ever been made on the land, outside of those made with borrowed money, was made out of the proceeds of the Kendall county lots, which were paid for, as we have already seen, by money' which the wife received directly from the husband, and which, under the law as it then stood, clearly belonged to the husband. So of the §>400 which the wife received from her father’s estate in 1842. By virtue of the marriage, the moment she received it it became the money of the husband, and hence any promise on his part, after the marriage, to repay it to her, in the event it was spent for the benefit of the family, was such a promise as was not enforcible, either at law or in equity.

Much of the evidence in support of the defence to this bill is exceedingly loose, vague' and uncertain,, and when considered as a whole, in the light of the conceded facts, is very unsatisfactory. The statements in the answer are often general and sweeping,in their character, and wholly inconsistent with admitted facts. Upon the whole, we are of opinion the appellees failed to show the land in question belongs in equity to the wife, and the presumption is that it belongs to the husband.

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

Decree reversed.


author: Mr. Chief Justice Craig

text:
    The Commissioners of Highways of the Town of Dimmick v. The Commissioners of Highways of the Town of Waltham.

      Filed at Ottawa November 10, 1881.

    1. Statute—several statutes on same subject to be construed together. Where several sections of a statute have a bearing upon the same subject, they will be construed together, in order to arrive at a correct conclusion as to the legislative intent in the several different sections.
    2. Bridges—on town lines—right of one town to call on the other for contribution. In the absence of any agreement between the commissioners of highways of two adjoining towns in regard to the erecting or repairing of a bridge on the town line, no action can be maintained by the one town against the other to recover for any portion of the money expended on such bridge. In a suit by one town against another to compel the latter to contribute to the cost of a bridge on the town line, an agreement between the officers of the two towns in respect to such bridge must be averred and shown to authorize a recovery.
    Appeal from the Appellate Court for the Second District;— heard in that court on writ of error to the Circuit Court of LaSalle county; the Hon. Francis Goodspeed, Judge, presiding.
    This was an action brought by the Commissioners of Highways of the township of Dimmick, in the county of La Salle, against the Commissioners of Highways of the township, of Waltham, in the same county, to recover one-half of the cost of a bridge erected across Tomahawk creek, on the town line between the two towns.
    To the declaration the defendant filed a special plea, in which it was in substance averred, that long prior to the building of the bridge in the declaration mentioned, to-wit, on the 12th day of March, 1855, the commissioners of the two towns caused to be laid out a highway, running north and "south upon the line dividing the two towns, from the southern to the northern boundary thereof; that after the highway was laid out, to-wit, May 23, 1856, a meeting of the commissioners of highways of the two towns was held for the purpose of dividing the highway into road districts, and allotting an equal number of such districts to each town; that a contract was then and there entered into, as follows: “At a meeting of the commissioners of highways of the towns of Dimmick and Waltham, in the said county, held in the said town of Dimmick on the 23d day of May, 1856, for the purpose of dividing a road running between the said towns; and it is ordered that such highway be divided into four road districts, as follows, to-wit: that part thereof from the southwest comer of section 31, in the town of Waltham, to the half section line of section 30, shall be one of the said districts, and shall be allotted to the town of Waltham; thence to the north-west corner of section 19 shall be one of said districts, and shall be allotted to the town of Dimmick; thence to the half section line of section 7 shall be one of said districts, and shall be allotted to the town of Waltham; thence to the north-west comer of section 6 shall be one of said districts, and shall be allotted to the town of Dimmick, ”—executed by all the commissioners, May 23, 1856; that the road was opened, and the portion allotted to each township by the contract was worked and kept in repair by each, as provided in the agreement, from the 23d day of May, 1856, until the commencement of this suit; that the bridge in plaintiff’s declaration mentioned was and is located within a short distance of the northern boundary line of said towns, and wholly within the road district on the north end of the highway, which was by agreement allotted to the town of Dimmick; that on the 1st day of June, 1856, the plaintiff commissioners, as a part of its duty under the division aforesaid, did construct a bridge across Tomahawk creek, and that the commissioners again, on, to-wit, the 7th day of June, 1874, in pursuance of the contract, and its duty, did build, construct and repair the bridge, as it was the duty of the plaintiff to do.

      To this plea the plaintiff filed a general demurrer, which was carried hack and sustained to the declaration.
    The declaration to which the court sustained a demurrer was as follows:
    “For that whereas, heretofore, to-wit, the 29th day of June, A. D. 1874, at, to-wit, said county of LaSalle, there was a bridge over Tomahawk creek, on the town line between said towns of Dimmick and Waltham; that said bridge was then, by reason of natural wear and decay, dangerous to pass over or upon with teams; that by reason of such dangerous condition it became and was necessary to build a new bridge over said creek at the same place, therefore the said plaintiff commissioners called the attention of said defendant commissioners to the condition of said bridge, and the necessity of rebuilding the same, and requested their cooperation to that end; that' said defendant commissioners refused to cooperate with said plaintiff commissioners. Thereupon said plaintiff commissioners, caused a notice in writing to be delivered to each of said defendant commissioners, which notice was in the following words and figures:
    “‘To John Hill, Jacob Barr, and Billman, Commissioners of Highways of the Town of Waltham, County of LaSalle, and State of Illinois:
    “‘Gentlemen—You are hereby notified and requested to meet us, the undersigned commissioners of highways of the town of Dimmick, of said county of LaSalle, and State of Illinois, on Saturday, the eleventh (11th) day of July, A. D. 1874, at the hour of two o’clock P. M., at the bridge crossing the Tomahawk creek, on the town line between the towns of Waltham and Dimmick, for the purpose of considering the propriety of building a new bridge at said place and over said creek, the old bridge being now dangerous and unfit for use. Said bridge stands on the east of section 12, in said town of Dimmick.’

      “That notwithstanding said notice said defendant commissioners positively refused to meet said plaintiff commissioners, as requested by said notice, and thereafter, upon several occasions, said plaintiff commissioners in person requested said defendant commissioners to unite with them in the building of said bridge; that said defendant commissioners always unqualifiedly and positively refused to take any action toward the building of said bridge, asserting that the town of Waltham was not legally responsible to contribute towards building, repairing or maintaining said bridge. Plaintiff further avers, that on and prior to said 29th day of June, 1874, there was a legally laid out and traveled highway on the town line between said towns, from the south to the north boundary thereof, and that said Tomahawk creek crossed said road diagonally on said town line, between section 12 in the town of Dimmick and 7 in the town of Waltham, at which point of crossing said bridge was located. Plaintiff further avers, that after the service of the notice aforesaid, and the refusal of said defendant commissioners aforesaid, said plaintiff commissioners proceeded and caused said old bridge to be removed and a new one to be erected in the place thereof, at a cost of $1100, whereby an action hath accrued to the plaintiff to have and recover of said defendant one-half of said sum, the sum of $550, which remains wholly unpaid, and to pay the same defendant hitherto hath, and still does, refuse, to the damage of said plaintiff of $3000, and therefore suit is brought. ”
    Messrs. Blanchard & Blanchard, for the appellant:
    The question presented by this record involves a construction of sections 107, 108 and 109 of the Road and Bridge law of 1874. Rev. Stat. 1874, p. 930.
    1. The common law, and formerly the statute law of this State, imposed upon the counties the burden of maintaining roads and bridges within their respective borders. People

      ex rel. v. Canal Trustees, 14 Ill. 402; Dennis v. Maynard, 15 id. 477.
    2. The words in section 109, “when any contract or agreement has been made in regard to the same, ” were not intended to limit the liability imposed by section' 107 to cases where adjoining towns agree to jointly build a bridge. If they are so held, then there is no liability imposed by law upon adjoining towns to build bridges on town lines, and section 107 is rendered inoperative and useless.
    3. The intention of the legislature is to be deduced from a view of the whole and every part of the statute taken and compared together, and that interpretation should be adopted that will give force and effect to each and every part. Zarresseller v. People, 17 Ill. 101; Stribling v. Prettyman, 57 id. 371; Decker v. Hughes, 68 id. 33.
    Mr. Gf. S. Eldbidge, for the appellee:
    1. The contract between the two towns, embracing no express provision for the maintenance of a bridge on the town line, created no joint liability by which the two towns were bound to maintain any bridge, though doubtless such a contract would have been lawful, and within the corporate power of the towns.
    2. That section 107, taken in connection with sections 108 and 109 of the act of 1873, by which it is supplemented, fails thus to create an absolute joint liability by force of the statute itself, is equally clear. These sections must be read together to arrive at proper conclusions as to legislative intent.
    3. Section 109 of the act of 1874 absolutely limits the right to enforce the payment of money for the building of- a bridge by one town against an adjoining town, except when a “contract or agreement has been made in regard to the same. ” It is supposed by appellant’s counsel if it were not for this provision their interpretation of the statute would not be questioned; but such is not true.

      4. The attention of the court is called to the opinion of the Appellate Court for the Second District, in Comrs. etc. of Deer Park et al. v. Wrought Iron Bridge Co. 3 Bradw. 574, construing the act of 1874. It will he observed that section 108 of the last cited act provides for the entering into joint contracts by the commissioners of the towns for the maintenance of the bridges provided for by section 107; and by section 109 the liability of one town to another and the right of action for the enforcement of such liability rests entirely upon the existence of an antecedent contract, whereby a joint liability for the erection or maintenance of the bridge was created.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

There is no common law obligation resting on towns to erect or keep in repair bridges within their respective borders, or upon town lines. If adjoining towns are liable to contribute equally to the erection and keeping in repair of bridges on town lines, that liability exists by virtue of our statute. It is contended by appellant that the liability in this ease is imposed by sec. 107, Rev. Stat. 1874, p. 930, which declares: “Bridges over streams which divide towns or counties, and bridges over streams on roads on county or town lines, shall be built and repaired at the equal expense of such towns or counties: Provided, that for the building and maintaining of bridges over streams near county or town lines, in which both are equally interested, the expense of building and maintaining any such bridges'shall be borne equally by both counties or towns.” If this was the only section of the statute relating to the subject, there would be much force in the position of appellant. But while this section of the statute, when read alone, would seem to impose the liability, it must, however, he read and construed in connection with other sections of the statute bearing on the subject. In this way only can the true intent of the legislature be ascertained, and a correct conclusion reached in regard to what was intended by the enactment of the different sections of the statute.

Section 108, which immediately follows the section relied upon, declares : “For the purpose of building or keeping in repair such bridge or bridges, it shall be lawful for the commissioners of highways of such adjoining towns or counties to enter [into] joint contracts, and such contracts may be enforced in law or equity against such commissioners jointly, the same as if entered into by individuals, and such commissioners may be proceeded against jointly, by any parties interested in such bridge or bridges, for any neglect of duty in reference to such bridge or bridges, or for any damages growing out of such neglect. ” The power to enter into joint contracts named in this section, was conferred subject to such other provisions as are contained in the statute, and must be read in connection with the following section 109, which declares: “If the commissioners of highways of either of such towns, after reasonable notice in writing from the commissioners of highways of any other such towns, shall neglect or refuse to build or repair any such bridge, when any contract or agreement has been made in regard to the same, it shall be lawful for the commissioners so giving notice to build or repair the same, and to recover by suit one-half (or so much as shall have been agreed upon) of the expense of so building or repairing such bridge, with costs of suit, and interest from the time of the completion thereof, from the commissioners so neglecting or refusing. ”

It will be observed that section 107 contains no provision whereby one town can compel another to erect or repair a bridge on a town line. The section is a mere declaration of the rule or principle which shall govern when other preliminaries have been settled between the towns, as declared in section 109. Section 108 merely authorizes the commissioners of the two towns to meet together and confer, one board with the other, and if they see proper they may, under this section, contract with a third party to repair or build a bridge on the town line, and as to such third party they will be bound and held liable on such contract. Neither of these sections directly or indirectly confers authority upon the commissioners of one town to compel the commissioners of an adjoining town to repair or erect a bridge on a town line, or pay one-half of the cost of such bridge after it may be erected or repaired. As between two adjoining towns, where a bridge has been erected or repaired on a town line by one, no remedy is provided until we come to section 109. That section provides the remedy, but the remedy provided is conditional, and can only be enforced where a contract or agreement has been made by and between the commissioners of the two towns in regard to the bridge. If no agreement has ever been made between the commissioners of the two towns in regard to erecting or repairing a bridge on a town line, no action can be maintained by the one against the other to recover for money expended on such bridge. Whether the provision in section 109, confining the remedy to cases where a contract or agreement has been made in regard to the bridge, is a wise one or not, is a matter with which the courts have no concern. It was for the legislature to determine under what circumstances the commissioners of one town might maintain an action against the commissioners of another town, and when that body has so determined, courts can not, by judicial construction, disregard a plain provision of the statute. We perceive no ground.upon which the action can be maintained, unless the words “when any contract or agreement has been made in regard to the same, ” contained in section 109, are disregarded, and we are aware of no rule in the construction of statutes which would authorize us to ignore those words in placing a construction upon the statute. But we do not think the limitation upon the commissioners of one town to sue the commissioners of another, and thus compel them to contribute one-half of the cost of erecting a bridge over a stream on a town line, was inserted in the statute inadvertently, or without a wise purpose. If the commissioners of one town have the power to compel the commissioners of another town to contribute one-half of the cost of erecting a bridge over a stream on the line between two towns, without a prior contract or agreement, by merely serving a notice, there are many cases where a densely populated township might bankrupt and bring ruin upon an adjoining township containing but few inhabitants and a small amount of taxable property. For instance, take two townships separated by the Illinois river, one containing within its limits a large city and a large amount of taxable property, the other containing but few inhabitants and a small amount of taxable property,—the commissioners of the rich and populous township desire a bridge over the river which forms the boundary line between the two, which will cost $150,000,—did the legislature ever intend by the enactment of section 107 that the township without capital or resources can be compelled, against its will and without an agreement, to contribute $75,000 to pay for the erection of the bridge ? We can not believe such a result was ever within the contemplation of the legislature, and yet should the construction of the statute contended for by appellant prevail, such results would necessarily follow.

If we are correct in these views, it follows that the declaration did not state a cause of action, and the demurrer was. properly sustained thereto.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Dickey

text:
    The People ex rel. Commissioners of Highways v. The Board of Supervisors of Iroquois County.

      Filed at Ottawa November 10, 1881.

      Bridges—inability of town to inarnr the whole expense—dmty of county to give its aid. Where the commissioners of highways of a town have determined that the construction of a bridge across any stream in their town in a public highway is necessary, and that the cost thereof is too great a burden to be reasonably borne by the town, and apply to the county board for an appropriation for one-half the cost of its construction, the commissioners having provided for'the other half of the necessary expenses, the county board is required by law to make the desired appropriation from the county treasury. In such a case the county board has no discretion to refuse the aid sought.
    Appeal from the Appellate Court for the Second District;— heard in that court on writ of error to the Circuit Court of Iroquois county; the Hon. Franklin Blades, Judge, pre-. siding.
    Mr. Robert Doyle, and Messrs. Kay & Euans, for the appellant:
    Under the present legislation it is not a matter of discretion with the board of supervisors whether or not they will grant aid to a town in building a bridge, where it is shown to be an unreasonable burden on the town to pay the entire cost, etc., but the duty imposed upon the board is compulsory to grant the aid. Rev. Stat. 1874, p. 930, sec. Ill; Hurd’s Stat. 1877, p. 877, sec. 90; Laws 1879, title “Roads and Bridges, ” sec. 110; City of Ottawa v. People ex rel. 48 Ill. 239.
    Mr. Tracy B. Harris, for the appellee,
    contended that an absolute duty to aid townships in the building of bridges is not imposed on boards of supervisors, but that .they are authorized to grant such aid in their discretion, referring to various statutes on the subject. Also, that mandamus will not lie to control the exercise of a discretionary power such as in this case, citing High on Extraordinary Remedies, 38; County of St. Clair v. People, 85 Ill. 396.
    County commissioners who are invested by law with the power of directing that a portion of the expense incurred by the town in making a highway shall be paid out of the county treasury, and who have refused the exercise of this power in a given case, can not be compelled to exercise it by mandamus, it being of a judicial nature, and therefore not subject to control. And this is so, regardless of whether the commissioners have decided properly or improperly upon the application. High on Extraordinary Remedies, 301; citing Inhabitants of Ipswich, Petitioners, 24 Pick. 343.
   Mr. Justice Dickey

delivered the opinion of the Court:

The Highway Commissioners of Belmont township applied by petition to the county board of Iroquois county for an appropriation from the county treasury of $1400, to aid in the construction of a bridge across Sugar creek, in a public highway. The petition stated that the bridge was necessary ; that the cost would be $2800; that to pay this sum for that purpose would be an unreasonable burden upon the town; that $1400 was all that could be raised in one year in the town for bridge purposes, and that the town had provided one-half of the funds necessary for building the bridge. The board of supervisors refused to make the appropriation. This is an application for a mandamus to compel an appropriation of the $1400 by the county authorities for this purpose.

The question presented is, whether, under these circumstances, the county board is clothed by law with á discretion enabling them to determine for themselves whether to make or refuse the aid sought.

In counties under township organization, by the laws of 1874, the entire control of all public roads was placed in the hands of the commissioners of highways for the respective towns. (See sec. 10, chap. 121, p. 914, Rev. Stat. 1874; also, sec. 107, et seq.) The board of supervisors were simply clothed with authority “to appropriate funds to aid” the highway commissioners “in the construction of roads and bridges in any part of the county, whenever a majority of the whole board of the county may deem it proper and expe-' dierit. ” (Sec. 57, chap. 34, p. 311, Rev. Stat. 1874.) And it was also provided, by another act, that-“when it shall be necessary to build, construct or repair any bridge or road in any town, (which would be an unreasonable burden to the same, the cost of which will be more than can be raised in one year by ordinary road taxes in such town, ”) on application by the highway commissioners, “the county board may (a majority of all the members elect voting for the same) make an appropriation of so much for that purpose as, in their judgmertt, the nature of the case requires, and the funds of the county will justify,—said appropriation to be expended under the supervision of an authorized agent or agents of the county board, if the county board shall so order. ” (Rev. Stat. 1874, chap. 121, sec. Ill. p. 930.)

Under these enactments the county board had clearly, in all cases, a discretion to exercise, and had the power to determine in what cases aid should be extended to town officers, and the extent of such aid; and that it might not be improvidently given, it required the sanction of “a majority of all the members elect,” or of “a majority of the whole board,” before such' aid could lawfully be given.

A subsequent statute was passed and approved May 26, 1877, by which it was provided, that “when it shall be necessary to build, construct, or repair any bridge or road in any town, which would be an unreasonable burden to the same, the cost of which will be more than can be raised in one year by ordinary road taxes in such town, the commissioners of highways shall present a petition to the county board * * * praying for an appropriation from the county treasury to aid in the building, constructing and repairing of such bridge or road, and such county board shall, when one-half the necessary funds have been provided for by the town authorities, appropriate the other half: Provided, that all unexpended surplus of any appropriation granted under the provisions of this section shall be paid back into the county treasury. ” (Laws of 1877, p. 193, sec. 70.)

This statute of 1877, in so far as it affects this question, was repealed by an act approved May 28, 1879, and was by that act reenacted, so far as it relates to bridges in any town, with some additional provisions not affecting this question, among which is one placing all funds to be raised under this section under the joint control of the highway commissioners and two persons to be appointed for that purpose by the county board. (Laws of 1879, p. 281, sec. 110.)

By section 10, of the act of 1879, (Laws 1879, p. 259, et seq.) highway commissioners of towns are charged with “ the care and superintendence of highways and bridges therein, ” and it is made “their duty, ” among other things, “to cause the building of bridges, when the public interest or necessity requires it, ” and “to cause * * * bridges * * * over streams intersecting highways to be kept in repair, ” and, in a word, have the general control of the subject of roads and bridges. The county board have no such general powers on this class of matters. By the act relating to counties they have the power (Rev. Stat. chap. 34, sec. 57, p. 311,) to appropriate funds to aid the commissioners “in the construction of roads and bridges in any part of the county, whenever a majority of the whole board may deem it proper and expedient. ” In this the board has still discretion to give aid in any case where a majority of the whole board so order. But as we understand the act of 1879, this board has no discretion in a case like the present. When the commissioners of highways of any town have determined that the construetion of a bridge across any stream in that town in a public highway is necessary, and that it is too great a burden to be reasonably borne by the town, and apply to the county board for such aid, the town authorities having provided for one-half of the necessary expense of such construction, the county board is unconditionally required by law to appropriate the other half from the county treasury.

We think the petition for mandamus shows upon its face all the facts required to warrant a. mandamus as sought in this case, and the demurrer to the same was improperly sustained. The judgment of the Appellate Court is therefore reversed, and the cause remanded to that court, that the judgment of the circuit court may there be reversed, and the cause remanded for further proceedings in accord with the views here expressed.

Judgment reversed.


author: Mr. Justice Sheldon

text:
    The Niagara Fire Insurance Company v. J. Young Scammon.

      Filed at Ottawa November 10, 1881.

    1. Insurance—notice of loss, when in time. A provision in a policy of insurance requiring the insured to give immediate notice of a loss, is not to be taken literally, but only requires that the notice shall be given with due diligence, under the circumstances of the case, and without unnecessary and unreasonable delay..
    „ ^ „ 2. A policy of insurance against fire required immediate notice of any loss to be §ÍTen’ an<^ a loss fire oecun'e|3- on July 14 1874, and a notice 0f the loss dated July 29, 1874, was served on the agent of the insurance company on August Tiie insul'e<l testified that such policy and others at the time of the loss were in the custody óf a mortgage company, that he had no description of them, that he called on the agent of that company and got them, and just as soon as. he could be about he gave notice to the insurance companies: Held, that this court could not say the court below erred in finding that there had been a compliance with the requirement of the policy for giving “immediate" notice of the loss.
    3. Same—policy construed as to time of furnishing proof of loss. A clause in a policy of insurance that “in case of loss the insured shall give immediate notice thereof, in writing, and shall render to the company a particular account of said loss, in writing, under oath, ” etc., where it is further provided that “until such proofs and certificates are produced, and examination and appraisal permitted, the loss shall not be deemed proved or payable, ” does not require that proof of the loss shall be furnished immediately, as in the case of the notice of the loss. But the loss not being payable until sixty days after furnishing proof thereof, and the insured being limited, by the terms of the policy, to one year after the loss in which to sue, the insured is required to furnish the proofs within ten months from the loss.
    4. Same—policy construed most strongly against the company. Insurance contracts being signed by the insurer only, and prepared by persons acting in the exclusive interest of the insurance company, the language used is that of the insurer, and hence the provisions of the policy are construed most favorably for the insured, in case of doubt or uncertainty in its terms.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Thomas Moran, Judge, presiding.
    Mr. Lawrence Proudfoot, for the appellant:
    It is well settled, under the law, that strict compliance with the provisions of the policy in regard to the serving of notice and proofs of loss is a condition precedent, and that no action can be maintained unless this condition has been performed. Edgley v. Farmers’ Fire Ins. Co. 43 Iowa, 587; Blossom v. Lycoming Fire Ins. Co. 64 N. Y. 162; Wood v. Worsley, 6 Term R. 710; Inman v. Western Fire Ins. Co. 12 Wend. 452.
    If the notice is required to be forthwith, or as soon as possible, or immediately, it will meet the requirements if given with due diligence, under the circumstances of the case, and without unnecessary and unreasonable delay, of which the jury are ordinarily the judges. May on Insur. 462; Cornell v. LeRoy, 9 Wend. 166; Peoria Marine and Fire Ins. Co. v. Lewis et al. 18 Ill. 560; Inman v. Western Fire Ins. Co. 12 Wend. 452; Knickerbocker Ins. Co. v. Gould, 80 Ill. 389.

      The law is also well settled that though the company may know of the .loss, it does not excuse the giving of notice, but the condition must be strictly complied with, unless waived. Edwards v. Lycoming Fire Ins. Co. 75 Pa. St. 378; Patrick v. Farmers' Ins. Co. 43 N. H. 621; Beatty v. Lycoming Fire Ins. Co. 66 Pa. 9.
    That there was such unreasonable delay in furnishing proofs of the loss as to defeat a recovery, counsel cited Kimball et al. v. Howard Ins. Co. 8 Gray, 33; Wheeler v. Field, 6 Metc. 295; Prescott Bank v. Caverly, 7 Gray, 221; Bell v. Lycoming Fire Ins. Co. 26 N. Y. (19 Hun,) 239; Blossom v. Lycoming Fire Ins. Co. 64 N. Y. 162; Miller v. Hamilton Ins. Co. 17 id. 609; Trask v. State Fire and Marine Ins. Co. 29 Pa. St. 198.
    When the time limited in the policy for making proofs of loss has elapsed, nothing short of an express agreement on the part of the insurer will revive the contract. Smith v. Haverhill Fire Ins. Co. 1 Allen, 297; Beatty v. Lycoming Fire Ins. Co. 66 Pa. St. 9; Wood on Insurance, sec. 414; Underwood v. Farmers’ Joint Stock Ins. Co. 57 N. Y. 505; Clark v. New England Fire Ins. Co. 6 Cush. 342; Underhill v. Aagawam Mutual Fire Ins. Co. id. 440; Brimstead v. Dividend Mutual Fire Ins. Co. 12 N. Y. 81; Post v. Ætna Ins. Co. 43 Barb. 351; Ames v. N. Y. Union Ins. Co. 14 N. Y. 253; Trustees First Baptist Church v. Brooklyn Fire Ins. Co. 19 id. 305; Knickerbocker Ins. Co. v. McGinnis, 87 Ill. 70.
    Mr. Francis H. Kales, for the appellee:
    1. The notice of the loss in this case was served in apt time. Knickerbocker Ins. Co. v. McGinnis, 87 Ill. 70; Palmer v. Ins. Co. 44 Wis. 201; Simpson v. Henderson, 22 Eng. C. L. 313.
    The cases here cited are express authority for the position that the word “forthwith” is not to be taken literally, but is to be construed to mean within a reasonable time.

      2. The proofs of loss, in view of the provisions of the policy, were made in due time. The words “as soon as possible, ” mean within a reasonable time, under all the circumstances. Knickerbocker Ins. Co. v. McGinnis, 87 Ill. 70; Eastern R. R. v. Relief ancl Ins. Co. 105 Mass. 570.
    3. The peculiar insurance contract in this case, if strictly construed, gave to the plaintiff a reasonable time, before the expiration of ten months after the loss, within which to furnish what are called the proofs of loss, as is shown to have been the case here.
    Such contracts are unipartite, or unilateral, being signed by the insurer only; and they are generally filled with conditions inserted by persons skilled in the learning of insurance law, and acting in the exclusive interest of the insurance company. Hence the rule is, they are to be liberally construed for the insured, and strictly construed with respect to the insurance company. Ins. Co. v. Wilkinson, 13 Wall. 233; Aurora, etc. Ins. Co. v. Eddy, 49 Ill. 106; Wood on Insurance, 140, 141; Bliss on Life Insurance, 656.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an action brought by J. Young Scammon, against the Niagara Fire Insurance Company, upon a policy of insurance issued by that company on January. 21, 1874, for $5000, upon the premises known as No. 16 Congress street, city of Chicago, which were destroyed by fire July 14, 1874. The cause was submitted to the court for trial without a jury, and judgment rendered in favor of the plaintiff for $6700, which was affirmed on appeal to the Appellate Court for the First District, and the defendant appealed to this court.

The only point made in favor of a reversal of the judgment is, that notice of the loss and the proofs of loss were not served upon the- company in compliance with the terms and conditions of the policy as to time. The clause of the policy in that respect is as follows: “In case of loss the insured shall give immediate notice thereof, and shall render to the company a particular account, in writing, of said loss, under oath,” etc. The fire occurred July 14, 1874. Written notice of the loss, dated July 29, 1874, was served on James B. Floyd, who was the local agent of the company in Chicago, August 5, 1874, and proofs of loss signed by the plaintiff, under date of August 5, 1874,» sworn to before a notary public under the same date, with the certificate of an architect under the date of August 25, 1874, were served upon David Beveridge, general agent for the company, in Chicago, on April 23, 1875.

In May on Insurance, sec. 462, it is said with reference to notice of loss: “If the notice be required to be forthwith, or as soon as possible, or immediately, it will meet the requirements if given with due diligence, under the circumstances of the case, and without unnecessary and unreasonable delay, of which the jury are ordinarily the judges.” This court has recognized such to be the rule. Peoria Marine and Fire Ins. Co. v. Lewis, 18 Ill. 560; Knickerbocker Ins. Co. v. Gould, 80 id. 388.

In the latter case, where the provision of the policy was, “in case of loss the assured shall give immediate notice thereof in writing,” the fire occurred October 9, 1871, and the proofs of loss were delivered to the company November 13 thereafter; it was held, that under the circumstances of that case,—the confusion and derangement of business following the great fire in Chicago of October 8 and 9, 1871,—the provision of the policy for giving immediate notice of the loss had been complied with. So that the words “immediate notice,” are not to betaken literally, but they mean that notice is to be given with due diligence under the circumstances of the case, and without unnecessary and unreasonable delay.

The testimony of the assured in the present case was, that this, and other policies he held were, at the time of the loss, in the custody of the United States Mortgage Company; that he had no description of them; that he called on Mr. San-some, agent of that company, and asked him for them, and he gave them to him; that “just as soon as I could be about I gave notice to the insurance companies.” It might be inferred from this that the assured had been prevented by sickness from giving earlier notice. We do not feel prepared to say that the court manifestly erred in finding that there had been a compliance with this requirement of the policy for giving immediate notice of the loss,—that there had been due diligence in giving the notice under the circumstances of the case.

As to the proofs of loss, the counsel for the respective parties .differ in their construction of the policy as to the time when the proofs of loss are to be furnished,—appellee’s counsel contending that by the terms of the policy they are not required to be made within any specified or described time, and appellant’s counsel that the proofs should be furnished to the company with the immediate notice of loss,— that is, should be furnished immediately. In Knickerbocker Ins. Co. v. Gould, supra, the provision in the policy in regard to notice and proofs of loss was in the same words as in the policy in this case, viz: “In case of loss the assured shall give immediate notice thereof in writing, and shall render to the company a particular account of said loss in writing, under oath, ” etc. In that case this court was inclined to the view of appellant’s counsel, that under such provision notice of loss and proofs of loss should be furnished to the company at the same time; but as helping to sustain that construction, resort was had to another provision of that policy which is not found in the present one.

Such insurance contracts being signed by the insurer only, and prepared by persons acting in the exclusive interest of the insurance company, the language is that of the insurer, and hence the rule is, that the provisions and conditions of the policy are construed most favorably for the insured. May on Insurance, sec. 175; Aurora Fire Ins. Co. v. Eddy, 49 Ill. 106.

It is not said in this policy, as frequently is in such policies, that the proofs of loss shall be made “as soon after as possible, ” nor that they shall be made at the same time with the notice, but only “in case of loss the insured shall give immediate notice hereof, and shall render to the company a particular account in writing of said loss, under oath, ” etc.; and in the same paragraph the consequences of failing to comply with this stipulation as to proofs is expressly declared, to-wit: “Until such proofs and certificates are produced, and examination and appraisal permitted, the loss shall not be deemed proved or payable. ”

The time for the giving notice of the loss is named, that it shall be immediate, but the time for furnishing the proofs of loss is not named. To hold, then, under the form of language here used, that the proofs are to be furnished at the same time with the notice, (that is, immediately,) and with only the delay which that term admits of, would not be according to the way the language would ordinarily be taken, and the words here used, with such a construction put upon them, would be calculated to mislead, and operate as a snare to the insured. If insurance companies would have promptness in the making of proofs of loss, they should require it in plain words, so that the assured may clearly see that diligence is required of him; and it would seem unfair to allow such a requirement of diligence to be hidden under the general language that proofs of loss shall be rendered, without mentioning any time within which they shall be rendered. Where, as in the present ease, there is nothing in any other part of the policy to favor such a construction, we can not hold that by the clause in question the proofs of loss were to be furnished at the same time with the giving of the notice,— that is, immediately. We think this a proper interpretation to apply, under the authorities, in the case of the use by an insurance company of such uncertain language. Such was the construction put upon the condition of a policy similarly worded, in Kilips v. Putnam Fire Ins. Co. 28 Wis. 472.

We find, then, that there was here a time specified when the notice of loss was to be given,—that immediate notice was to be given,—but that there was no time specified within which proofs of loss were to be furnished, and there should be a difference of construction as to the time of acting in the two cases—more speedy in the former than in the latter case. The requirement of immediate notice would indicate that notice was to be speedily given. The mere general provision that proofs of loss were to be furnished, not naming any time, would not suggest that there need be the use of any especial diligence in making proofs of loss. But even when immediate notice is to be given, it will meet the requirement, as we have seen, if notice be given with due diligence under the circumstances of the case. More latitude of time should be indulged in the furnishing of proofs in this case. What, then, would be a reasonable time within which to furnish proofs of loss, under the circumstances of a case where no time is mentioned for furnishing them ?

The loss is not, by the terms of the policy, to be payable until the expiration of sixty days from the time of furnishing the proofs of loss. The insured is to have one year from the time of the loss within which to bring his suit, to avail himself of which, and give the insurer sixty days before suit brought, the proofs under the policy would have to be furnished to the company within ten months from the time of the loss; so there is at least this limit of time, viewing other provisions of the policy, within which the proofs of loss must be furnished.

Now, the assured did furnish the proofs of loss within that limit of time, and within about nine months after the loss occurred.

The plaintiff testified, that during the period between August 5, 1874, and April 23, 1875, the United States Mortgage Company was prosecuting a proceeding in bankruptcy against him, and the question arose in his mind as to whether he could make the proofs while these bankruptcy proceedings were pending, and he names some other reasons which may tend to explain the delay in furnishing these proofs. Now, not • intimating that such reasons would be sufficient to excuse the delay here, in ease of a provision that the proofs of loss were to be furnished “forthwith, ” or “as soon as possible, ” yet they have some bearing upon the question of unreasonable delay, where there is the absence of a requirement .of any diligence in making the proofs of loss.

In the case of Scammon v. Germania Fire Ins. Co., where the provision in the policy was that the insured should forthwith give notice of the loss, “and as soon after as possible render a particular account of such loss,” etc., and where there was the same delay as in the present case in. furnishing proofs of loss, we have at the present term decided that the delay was fatal to a recovery. But the difference in the wording of these provisions of the respective policies warrants, we think, the contrary decisions which we make in the two cases as to the effect of the delay in making proofs of loss.

We are not satisfied that, under the provisions of the policy in this case, the circuit court erred in finding" the plaintiff was not barred of a right of recovery because of the delay in furnishing to the company the proofs of the loss, and the judgment of the Appellate Court will be affirmed.

Judgment affirmed.


text:
    George Strauch et al. v. Edwin Hathaway et al.

      Filed at Ottawa November 10, 1881.

    1. AcknowiiEDgment—evidence to impeach. In the absence of evidence of fraud, conspiracy or overreaching of any kind, or anything casting a suspicion upon the integrity or honesty of the certifying officer, and when the certificate of acknowledgment of a deed is in conformity with the statute, it can not be impeached by merely negativing the facts therein stated.
    2. As between the former owner of land and an innocent purchaser under a deed of trust, before the title of the latter can be defeated by impeaching the truthfulness of the certificate of acknowledgment to the trust deed, the evidence must be clear and conclusive, excluding every reasonable doubt.
    Appeal from the Circuit" Court of Carroll county; the Hon. John Y. Eustace, Judge, presiding.
    Messrs. Hunter & Hoffman, for the appellants:
    The law makes the certificate of acknowledgment of a deed evidence of the execution of the deed. It imports verity, and can not he overcome except by clear and undoubted evidence of its fraudulent character. Spurgin v. Traub et al.
      65 Ill. 170; Sisters of Loretto v. Catholic Bishop, 86 id. 171; McPherson v. Sanborn et al. 88 id. 150; Tunison v. Chamberlin et al. 88 id. 378; Myers v. Parks, 95 id. 408.
    After the lapse of several years, proof on the part of a wife will not be allowed to avoid such deed as against an innocent purchaser without notice, by showing that she never in fact acknowledged the deed. Kerr v. Russell, 69 Ill. 666; Choteau v. Jones, 11 id. 800; Peck. Arehart, 95 id. 113; Hunter v. Stoneburner, 92 id. 75; Pratt v. Stone, 80 id. 440.
    Mr. Jambs Shaw, for the appellees
    1. The husband alone can not waive the homestead. The wife must join with him to make his waiver effective; and where possession is retained, the homestead can only be alienated when the wife not only signs the conveyance, but also properly acknowledges it. Rev. Stat. 1874, p. 497, sec. 4; Richards et ux. v. Greene, 73 Ill. 54; Moore v. Titman, 33 id. 358; Eldridge v. Pierce et al. 90 id. 474; Black v. Lush, 69 id. 70; Marshallv. Poor, 35 id. 106.
    2. The husband and wife may join in suit to assert the right of homestead. Eyster v. Hathaway et al. 50 Ill. 521.
    3. A false certificate is a fraud on the wife. A certificate may be impeached like a record, or a fine and recovery. They always could be impeached for fraud. 73 Ill. 337.
    4. The homestead right may be asserted at any time, when it has not been abandoned, or conveyed according to statute. Wing v. Cropper, 35 Ill. 256; Young v. Graff, 28 id. 20; Allen v. Hawley, 66 id. 164; West v. Krebaum, 88 id. 263; Asher v. Mitchell, 92 id. 480; Moore v. Dixon, 35 id. 208.
    5. The certificate of acknowledgment may be shown to be false. A clear preponderance of testimony will be sufficient in showing this. Marston et al. v. Brittenham, 76 Ill. 611; Lowell v. Wren, 80 id. 238; McPherson v. Sanborn et al. 88 id. 150; Blackman v. Hawks, 89 id. 512; Myers v. Parks, 95 id. 408.
   Mr. Justice Mulkey

delivered the opinion of the Court:

On the 26th of February, 1876, Edwin Hathaway borrowed of Caroline Marks $3000, to secure which he and his wife, Flora A. Hathaway, executed a deed of trust to Henry A. Miles, as trustee, in the usual form, upon their homestead premises, which the proofs show do not exceed in value $1000. Default having been made in payment, the premises were sold under the trust deed, and George Strauch became the purchaser. Hathaway and • wife having refused, after demand, to surrender possession of the premises to Strauch, the latter instituted an action of forcible detainer to recover their possession, whereupon appellees filed the present bill against appellants in the Carroll county circuit court, by which they seek to set aside the sale under the trust deed, to enjoin the forcible detainer proceeding, and to have their homestead set off and assigned to them. The relief sought by the bill is asked on the alleged ground the deed of trust contained no waiver of the homestead by Mrs. Hathaway. The circuit court found the equities with appellees, and rendered a decree in conformity with the prayer of the bill, and appellants bring the record here for review.

It is admitted that the deed of trust was signed by the wife as well as the husband, and the certificate of the magistrate is in due form, and shows a release and waiver of the homestead by them both. All the witnesses who claim to know anything about the transaction, testify to the fact that Mrs. Hathaway went with her husband to the premises of the justice at the time the acknowledgment was taken, and it is admitted that he acknowledged it; but it is claimed that the husband alone went into the house where the justice kept his office, leaving his wife in the carriage which had conveyed them there, in company with Mr. and Mrs. Holt, all four of whom testify to this fact. On the other hand, as has already ■ been stated, the certificate of the magistrate shows a release and waiver of the homestead by them both. The magistrate also testifies to the taking of her acknowledgment at the same time he took the husband’s, and that the same was taken at his office, in his house. In addition to this, Mrs. Bell, who was present at the time spoken of by the other witnesses, testifies that Mrs. Hathaway was in the office of the justice at the time of the acknowledgment of the deed by her husband, though she does not pretend to remember the details of what occurred while there.

In view of the fact that more than four years elapsed between the taking of the testimony and the occurrences to which it relates, it is not at all surprising that there should be discrepancies in the recollection of witnesses as to what actually did occur,—that these differences in the recollection of persons of unquestioned integrity, with respect to events which have transpired a number of years past, is but a part of the common experience of every one who notes the current events of life. This being so, it shows how much more reliable and trustworthy, as a muniment of title, is the solemn official record of a fact, made at the time of its occurrence, than the mere recollection of witnesses, however honest, with respect to such fact, especially where years have passed since it transpired.

In the present case, no apparent motive is shown for the execution of a false certificate, and there is nothing in the whole record tending to show any combination, fraud, or conspiracy on the part of the justice or others connected with the transaction. Under such circumstances, nothing but the most clear and satisfactory evidence would warrant us in declaring the certificate of the justice a forgery, and thereby defeating the title of the purchaser at the trustee’s sale, who in good faith paid his money for the premises, relying upon the genuineness and truthfulness of the certificate. If landed titles could be set aside and defeated upon a mere conflict of verbal testimony, like that presented in the present case, without any evidence tending to establish fraud or conspiracy, no one could know, with any degree of assurance, when he would be safe in buying a title of any kind, and the general confidence in titles of record would soon be destroyed.

Mr. Wharton, in discussing this subject in his work upon Evidence, says: '“The true view is, that the certificate of acknowledgment "is prima facie proof of the facts it contains, if within the officer’s range, but is open to rebuttal between the parties by proof of gross concurrent mistake or fraud. In favor of purchasers for valuable consideration without notice, it is conclusive as to all matters which it is the duty of the officer to certify, if he has jurisdiction.” 2 Wharton on Evidence, sec. 1052.

This court has not gone to the full extent of the latter proposition. While we hold the certificate shall not be deemed conclusive in any case so as to cut off all inquiry, 3ret where there is no evidence of fraud, conspiracy or overreaching of any kind, or anything casting a suspicion upon the integrity or honesty of the certifying officer, and the certificate of acknowledgment. is in conformity with the statute, it can not be impeached by merely negativing the facts therein stated. Monroe v. Poorman et al. 62 Ill. 523; McPherson v. Sanborn et al. 88 id. 150; Russell v. Baptist Theological Union, 73 id. 337.

Where the controversy is between the former owner and an innocent purchaser, as in the present ease, before the title of the latter can be thus impeached the evidence should be clear and conclusive, excluding every reasonable doubt. The evidence in this case is not of that character. The utmost that can be claimed, even leaving the certificate itself out of the question, is that there is simply a preponderance of testimony in favor of appellees, in so far as numbers of witnesses go to make up preponderance, which is not always a safeguard in determining the weight of evidence. But, under the circumstances of this ease, we regard the certificate of the officer as entitled to more weight than all the witnesses put together.

The decree of the circuit court will be reversed, and the bill dismissed.

Decree reversed.