author: Mr. Justice Shope

text:
    Charles D. Sword v. Wolfred N. Low.

      Filed at Ottawa November 11, 1887.

    1. Fixtures—whether a part of the realty, and not removable, or personal, cmd removable. There are three tests of the character of fixtures, as to their being irremovable, viz.: First, actual annexation to the realty, or something appurtenant thereto; second, application to the use or purpose to which that part of the realty with which they are connected is appropriated; and third, the intention of the parties making the annexation to make a permanent accession to the freehold. The latter test appears to be the principal one. In cases of doubt, the intention of the parties must control.
    2. While parties may not, by contract, make personal property real personal at will, yet when an article personal in its nature is so attached to the realty that it can be removed without material injury to it or to the realty, the intention with which it is attached will govern; and if there is an express agreement that it shall remain personal property, or if, from the attendant circumstances, it is evident or may be presumed that such was the intention of the parties, such article will be held to have retained its personal character, even as against subsequent purchasers or incumbrancers.
    3. The rule that the intention with which the annexation is made will control as to the character of the fixture, does not apply to such articles as enter into and form parts of a structure appurtenant to land, such as lumber, stone and shingles, or to doors, windows and grates, and the like articles which are incorporated into the structure. These and the like articles lose their identity and become a necessary part of the structure, and are clearly distinguishable from such articles as are or may be merely annexed to the freehold and retain their characteristics, and may be removed in their entirety without material injury.
    4. While it may be conceded that portable mills, engines, boilers and the like, even slightly affixed to the realty, will, in the absence of circumstances raising a contrary presumption, or evidence showing a contrary intention, be presumed to have been attached as permanent accessions to the soil, yet however permanently attached, if removable without material injury, the intention to be inferred from the circumstances, and the relation of the parties to each other and to the realty, or as shown by evidence, will be of controlling and decisive importance.
    5. Where it is agreed, on the sale of a steam boiler and engine, that the vendor is to have a lien thereon, by chattel mortgage, until the price is paid, and the purchaser gives a mortgage on the same for the price, and afterward, after setting up the same on a lot purchased by him, he renews the chattel mortgage, in which he treats the property as chattels, it will not become part of the realty if it may be removed without material injury to the freehold.
    6. The purchaser of a boiler and engine agreed to and did give the vendor a chattel mortgage thereon, on April 4, 1881, maturing July 7, 1881. On May 14,1881, the former bought a lot, and set the engine and boiler on the same for use. On July 7, 1881, a new chattel mortgage on the same property, and note, were given, falling due January 7,1882. The purchaser being indebted to a third person, conveyed to him the lot on which the engine and boiler were set and in use, who sought to enjoin the taking of the property under the chattel mortgage. The proof failed to show that the removal of' the boiler and engine would materially damage the same, or the realty: Held, that the boiler and engine remained personal property, and were subject to be taken under the chattel mortgage, as against the purchaser of the realty.
    7. Chatted mortgage—notice of the rights of parties, and what rights-Under the laws of this State, chattel mortgages are required to be filed and recorded in the recorder’s office of the county; and they, from the date of their filing for record, are notice to all subsequent purchasers and incumbrancers, of the rights of the mortgagee thereunder in the property mortgaged, although it may be annexed or attached to real estate.
    8. Notice to purchaser—as to the character of a fixture to real estateQucere, whether the character of a fixture or chattel annexed to real estate, as fixed by the express agreement of the parties, will be changed in favor of a subsequent purchaser or incumbrancer of the realty, in case he has no notice'of such agreement.
    Appeal from the "Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. H. M. Shepard, Judge, presiding.
    In December, 1880, Thomas L. Iiempster purchased of William W. Marsh, of Sycamore, Illinois, an engine and boiler, at. the price of $800, $200 of which was to be paid on delivery, and for the balance he gave two notes, of $300 each, each to be secured by mortgage on real or personal property. Wolford N. Low, appellee, was acting as agent of Marsh, in Chicago, and about January 1, 1881, Marsh shipped the engine and boiler to Chicago, consigned to Low, with instructions to deliver to Kempster upon his paying the $200 cash, and giving said notes, properly secured, for the balance, and not without. Shortly after, Kempster gave and secured the two notes by chattel mortgage, and delivered the same to Low, but was unable to make the cash payment. Kempster, afterwards, without having made the payment, got possession of the property without Low’s consent. After getting possession, Kempster placed the engine and boiler in the warehouse, and borrowed money on the warehouse receipt. Low, finding that Kempster had got possession, finally consented to take chattel mortgage upon the engine and boiler for the whole $800, and accordingly a chattel mortgage was duly executed, and recorded April 4, 1881, and maturing, with days of grace, July 7,1881. Kempster originally bought the engine and boiler, as he represented, for the purpose of using it in a brick-yard, on leased land, but on May 14, 1881, he contracted to purchase of Willis G. Jackson, block 14, Jackson’s subdivision of part of section 11, township 40, range 13. No money was paid under this contract, but Kempster entered into possession under contract for the purchase of it, and $550 of the purchase money was agreed to he paid by a day named, and, upon payment, deed was to be delivered by said Jackson to said Kempster therefor. September 8, 1881, Kempster, being indebted to T. L. and C. D. Sword, executed a mortgage upon the premises contracted for with Jackson, to secure the same, which was recorded the same day. Said indebtedness was for machinery sold by said Sword to said Kempster some time before the execution of said mortgage. Some time after the contract of purchase made with Jackson, Kempster moved the boiler and engine upon the premises purchased, and commenced their use in furnishing the motive power in running a brick machine.
    On the 7th of July, 1881, Low, as agent of Marsh, was about to take possession under a chattel mortgage, and was induced by Kempster to extend the time of payment and to take a new chattel mortgage, which was done, the new note and chattel mortgage bearing date and record July 7, 1881, and maturing January 7,1882. December 5,1881, the whole of the purchase money of the land being past due, Jackson recovered judgment against Kempster in forcible detainer, but, by agreement, there was stay of writ of possession until January 7, following,—the same day the chattel mortgage to Marsh became due. Low, learning of the forcible detainer proceedings by Jackson, called upon Jackson in regard to his lien under the chattel mortgage. Jackson made no claim to the property mortgaged, recognized it as being subject to the lien of the mortgage, and requested Low to leave the engine and boiler in Kempster’s possession as long as he safely could, as he was desirous that Kempster should succeed in making brick, etc., and pay his debts. Low assented to this proposition. Marsh, being dissatisfied with Low’s management of the matter with Kempster, required Low to take the paper of Kempster, and Low did so.
    Kempster being unable to pay Jackson, appellant, Charles D. Sword, who had become assignee of P. L. and C. D. Sword’s claim against Kempster, arranged with Kempster to advance to Jackson the $550 due him, which he did, and Kempster and wife made a general warranty deed to appellant for said block 14. Before the purchase by Sword, and before he had paid anything upon the contract, he had actual notice of Low’s chattel mortgage, and of the request of Jackson, under which the boiler and engine had been left upon the premises, and recognized the claim of Low by endeavoring to have him forego his lien and right to take possession of the property under his mortgage, and wait upon Kempster in common with other creditors, and failing in this, he attempted to induce other creditors of Kempster to buy in Low’s mortgage and extend the time to Kempster, and thus prevent its foreclosure. Failing in this also, he, several days afterwards, took the deed from Kempster and wife, and paid the purchase money to Jackson.
    It appears that the indebtedness to P. L. and C. D. Sword was for a brick machine purchased by Kempster, and that, •on the 8th of September, 1881, had long been due. Neither Sword nor Kempster having paid the note to Low, on the 9th ■of January., 1882, he was about to take possession of the engine and boiler under his chattel mortgage. This bill was for injunction to restrain Low from foreclosing his chattel mortgage, and alleging he was about to do so, and that said property was permanently attached to the realty, and had passed to appellant under his deed of the land, etc. The Superior Court, on hearing, dissolved the injunction and dismissed the bill, and, upon suggestion, awarded damages. The correctness of the ruling of the court in these several respects is questioned by "this appeal.
    Messrs. G-. W. & J. T. Kretzingeb, for the appellant:
    The annexation of the boiler and engine, in the manner and by the means appearing in the record, made them a part of the realty, and they jiassed as such under the real estate mortgage executed to Sword & Son, by Kempster, September 8, 1881, as well as by the warranty deed executed by Kempster and wife to appellant, about January 1, 1882. Dobschuetz v. Holliday, 82 Ill. 371; Thielman v. Carr, 75 id. 385; Stettauer v. Hamlin, 97 id. 312; Ford v. Cobb, 20 N. Y. 351; Snedeker v. Warring, 12 id. 174; Green v. Phillips, 26 Gratt. 752; Voorhees v. McGinnis, 48 N. Y. 282; Stockwell v. Campbell, 39 Conn. 362; Quinby v. M., C. and P. Co. 24 N. J. Eq. 260; Brennan v. Whittaker, 15 Ohio St. 446; Fortman v. Goepper, 14 id. 565; Franklin v. Moultland, 5 Wis. 1; Sands v. Pfeiffer, 10 Cal. 258; McKim v. Mason, 3 Md. Ch. 186.
    The chattel mortgage made to Marsh constituted no notice to the real estate mortgagee or grantee in the warranty deed, taken as security for further advances made to save his security. Bringhoff v. Munzenmaier, 20 Iowa, 519; Hunt v. Bay S. I. Co. 97 Mass. 283; Brennan v. Wittaker, 15 Ohio St. 446.
    The first chattel mortgage was made before the boiler and engine were attached to the real estate. If such annexation thereafter, by Kempster, was a fraud upon the rights of appellee or his assignor, the remedy is against Kempster. The lien of the chattel mortgage ceased the moment the personal property therein described,—to-wit, the engine and boiler,— became a part of the realty by annexation. Ford v. Cobb, 20 N. Y. 351; Voorhees v. McGinnis, 48 id. 282.
    This controversy is not between Kempster, the chattel mortgagor, and the chattel mortgagee; therefore no estoppel, as against Kempster, that might arise upon recitals in the chattel mortgage, can be urged against appellant, the real estate mortgagee, and grantee. The recital in the chattel mortgage, describing the property as personal, ceases to be binding, and is. ineffectual to create an estoppel when such property is annexed to the freehold and becomes a part of the realty. Jenney v. Jackson, 6 Bradw. 32; Voorhees v. McGinnis, 48 N. Y. 282, and cases cited in opinion of the court.
    The damages found by the master, and confirmed by the court, upon the suggestion of damages by reason of the suing out of the injunction and its continuance for nine months, are not supported by the evidence. Upon the whole case made by the pleadings and evidence, it is clear that the equities were with the appellant, and that he was entitled to the remedy sought by his bill. The motion for a dissolution, and the final hearing of the cause, proceeded together upon the affidavits ; therefore the services of counsel, rendered in one, were inseparable from the other. In fact, it was not the hearing of the motion to dissolve, but it was the trial of the cause upon final hearing, which resulted in the disolution of the injunction. Blair v. Reading, 99 Ill. 615; Phelps v. Foster, 18 id. 311.
    Mr. Edward Bobt, for the appellee:
    Jackson’s judgment in forcible detainer established the fact that the contract of sale of the lot, and all rights of Kempster and those claiming through him, had been extinguished. Moore v. Smith, 24 Ill. 512.

      But Kempster and Marsh had a right to take off their trade fixtures, which were chattels, including thé engine and boiler. Globe Marble Mills v. Quinn, 76 N. Y. 23; Robertson v. Corsett, 39 Mich. 783; Herrman on Chattel Mortgages, 2, 6, 346, 347; Henly v. Dinkerhoff, 57 Cal. 3 ; Tifft v. Horton, 53 N. Y. 377; Estate of Hinds, 5 Whart. 138.
    If a party had notice of the title of his grantor, he takes no greater or other estate, either legally or equitably, than was' held by the grantor. Taylor v. Baker, 5 Price, 306; Crafton v. Ormsby, 2 S. & L. 583; Daniels v. Davison, 16 Ves. 248; 17 id. 433; Chesterman v. Gardner, 5 Johns. Ch. 29 ; Allen v. Anthony, 1 Meriv. 282; Powell v. Dillon, 2 Ball & Beatty, 416; Eyre v. Dolphin, id. 290; Hall v. Smith, 14 Ves. 426.
    Either law or equity will hold an engine and boiler, under such circumstances as these, as chattels. Moore v. Smith, 24 Ill. 512; Globe Marble Mills v. Quinn, 76 N. Y. 23; Robertson v. Corsett, 39 Mich. 783; Henly v. Dinkerhoff, 57 Cal. 3; Tifft v. Horton, 53 N. Y. 377; Estate of Hinds, 5 Whart. 138; Herrman on Chattel Mortgages, 2, 6, 346, 347.
    Equity will not permit Sword, by collusion with Kempster, to keep Low’s boiler and engine without paying for them. Fuller v. Paige, 26 Ill. 358; Badger v. Batavia Co. 70 Ill. 302.
    Any mortgage was good, between the parties, whether the mortgagee took possession or not. (Badger v. Batavia Co. 70 Ill. 302.) And this case shows that a chattel mortgage of a fixture is as good as any other.
    Under the circumstances of this case, the engine must be regarded as personal property, if necessary to protect the paramount rights of the mortgagee. Ford v. Cobb, 20 N. Y. 351; Smith v. Benson, 1 Hill, 176; Mott v. Palmer, 1 Comst. 564; Goddard v. Gould, 14 Barb. 662.
   Mr. Justice Shope

delivered the opinion of the Court:

The principal question presented in this record is, whether the1 boiler and engine in controversy, under the circumstances of the case, passed by the deed of Kempster and wife to Sword, or were subject to the lien of the chattel mortgage in favor of Marsh. At the time of the execution of the chattel mortgage of April 4, 1881, this property was in nowise connected with the realty, but about May 14, when Kempster purchased lot 14 of Jackson, it was placed thereon. There is a sharp conflict in the evidence as to the character of the attachment of this machinery at the time of making the chattel mortgage of July 7,1881. The evidence introduced by appellee shows that the boiler and engine, at that time, were resting upon temporary supports, simply, and covered by a shed open at both ends, out of which they could have been removed without injury to-the machinery or to the freehold, while that offered by the appellant shows that they were attached to the soil by being placed upon solid brick foundations, and were inclosed by a building, so that their removal would occasion more or less damage to the articles themselves, and to the freehold. If it should become material, we are inclined to hold that the weight of evidence, when considered in the light of' all the surrounding circumstances, sustains the contention of appellee as to the mode of attachment July 7, 1881, while there can be no-doubt that afterwards, and before the appellant acquired his deed from Kempster and wife, in January, 1882, they were attached by being placed on brick foundations, as contended for by appellant.

We are referred to very respectable authority, holding that although the articles were personalty at the time of making the chattel mortgage, if they afterwards became attached to the realty as fixtures, they would thereafter pass with the land under a deed or mortgage thereof, and that the chattel mortgagee must seek his remedy against those who wrongfully converted the mortgaged articles, and thereby deprived him of his security. We do not question the correctness of the rule announced in cases where it properly arises, but we think that the principle contended for can have no application here. ■> In determining the questions involved, it will be necessary to consider the character of the property mortgaged, its relation to the real estate, and the relation of the respective parties to each other and to the property.

It is definitely shown, that upon the purchase of the boiler and engine from Marsh, Kempster was to pay $200 in cash, and secure the residue by mortgage on real estate, and by chattel mortgage upon the property purchased. Kempster, being unable to pay, executed his notes for $800,—the whole amount of the purchase price,—and a chattel mortgage to secure the same, on the boiler and engine, but was unable to give other security of any value, as he had agreed to do. On the 4th of April, 1881, this first note became due, and the time of payment was extended, new notes being taken, falling due July 4, 1881, which were secured by a chattel mortgage on this property, duly made and recorded. On the 7th day of July, 1881, the notes of April 4, 1881, having become due by their terms, Low, as agent of Marsh, took possession of the boiler and engine’under the chattel mortgage of April 4, and there was then, at the request of Kempster, a farther extension of time of payment agreed upon until January 7, 1882, and a new chattel mortgage, upon the engine and boiler, made, acknowledged and recorded the same day, to secure the note given for the original purchase money of the engine and boiler. The agreement and understanding at all times, after it was found Kempster could not pay, between Kempster and those who acted for Marsh, was, that the purchase price of the engine and boiler should be secured by a chattel mortgage thereon. It is shown, at the time of the purchase Kempster represented that he expected to use this engine and boiler as motive power, etc., upon land which he had leased, but afterwards, when he entered into contract of purchase for block 14, in Jackson’s subdivision, etc., of.Jackson, and went into possession, he placed the property in controversy thereon, and put it in use to furnish motive power in running a brick machine. At the time of making the chattel mortgage of July 7, the boiler and engine were subject to the lien of the chattel mortgage of April 4, unless, as between Kempster and Marsh, the placing of it on the real estate, as described, had changed its character from that of personal property. The mortgage of April 4 was in the usual form, and contained the usual covenants. Kempster mortgaged the goods and chattels therein mentioned, etc., and Marsh or his assigns, upon failure to pay the notes thereby secured, was given the right to seize the same wherever found, and sell, to satisfy the indebtedness thereby secured.

To determine the irremovable character of a fixture, three tests are, by the modern authorities, applied, viz: “First, actual annexation to the realty, or something appurtenant thereto; second, application to the use or purpose to which that part of the realty with which it is connected is appropriated ; and third, the intention of the parties making the annexation to make a permanent accession to the freehold.” Herrman on Chattel Mortgages, 6; Ewell on Fixtures, 21, 22; Tyler on Fixtures, 114; Washburn on Beal Prop. 16. •

Mr. Ewell (page 22,) says, that “of these three tests the clear tendency of modem authority seems to give prominence to the question of intention to make the article a permanent accession to the freehold, and the others seem to derive their chief value as evidence of such intention.”

Washburn (page 8,) lays down the rule: “It may be stated, in the first place, that whether a thing which may be a fixture becomes a part of the realty by annexing it, depends, as a general proposition, upon the intention with which it was done.”

In Kelly v. Austin, 46 Ill. 156, this court said, while the intention alone will not always determine whether such structures as were there being considered, are or are not to he regarded as realty, it will have a controlling influence in cases of doubt. See, also, Dooley v. Crist, 25 Ill. 551; Smith v. Moore, 26 id. 392; Arnold v. Crowder, 81 id. 56; Thielman v. Carr et al. 75 id. 385.

There seems to be great unanimity in the authorities, that things personal in their nature may retain their character of personalty by the express agreement of the parties, although attached to the realty in such manner as that, without such agreement, they would lose that character, provided they are so attached that they may be removed without material injury to the article itself, or to the freehold. It is not held that'parties may, by contract, make personal property real or personal at will, but that where an article personal in its nature is so attached to the realty that it can be removed without material injury to it or to the realty, the intention with which it is attached will govern; and if there is an express agreement that it shall remain personal property, or if, from the circumstances attending, it is evident or may be presumed that such was the intention of the parties, it will be held to have retained its personal character. Ford v. Cobb, 20 N. Y. 344; Eaves v. Estes, 10 Kan. 314; Coleman v. Lewis, 27 Pa. 391; Hunt v. Bay State Iron Co. 97 Mass. 279; Richardson v. Copeland, 6 Gray, 536; Haven v. Emory, 33 N. H. 66.

So in Smith v. Benson, 1 Hill, 176, Cowen, J., says: “Prima facie, such buildings would be a fixture, and would not be removable ; * * * but the parties concerned may control the legal effect of any transaction between them, by an express agreement.” See, also, Shuart v. Taylor, 7 How. Pr. 251 ; Parker v. Redfield, 10 Conn. 490; Curtis v. Hoyt, 19 id. 154; Tibbetts v. Moore, 23 Cal. 208.

In Piper v. Martin, 8 Pa. 206, it was held, where the sheriff had levied on two stills erected in the usual way in the distillery of the defendant, that the agreement of the defendant in the execution, that they should be treated as personalty, was conclusive, and the court say: “Now whether, in contemplation of law, it was attached to the realty, or not, as a fixture, is immaterial, as the parties agreed to consider it personal property. This dispenses with the necessity of determining whether it was real or personal.”

In the case of Ford v. Cobb, supra, salt kettles were bought by the owner of the fee, and mortgaged to the seller as personalty to secure the purchase money, and were afterwards affixed to the freehold by being set in brick foundations, from which they could be removed only at an expense of fifty dollars. It was held that such salt pans retained their character as personal chattels, as against the subsequent purchaser of the realty, who had no notice of the chattel mortgage other than that constructively given by the filing of the chattel mortgage for record.

Eaves v. Estes, supra, arose between the vendee of the freehold and a chattel mortgagee, the purchaser of the freehold having no notice of the chattel mortgagee’s lien. The property mortgaged was an engine put into and used as motive power in a mill. The court say: “But when we consider the purpose of the parties, as evinced by the mortgage, to make the engine retain the character of a chattel, regardless of its attachment to the mill, and as the mortgage violated no principle of law, wrought no injury to the rights of others, and was in the interest of trade, we have no doubt that the engine continued to be personal property.” See, also, Voorhees v. McGinnis, 46 Barb. 242. .

In Tift v. Horton, 53 N. Y. 377, the New York Court of Appeals held that neither a prior nor subsequent mortgagee of land can claim, as subject to the lien of his mortgage, chattels brought upon and affixed to the lands under an agreement between the owner of the fee and the owner of the chattels, that the character of the latter as a personal chattel is not to be changed. Folder, J., in delivering the opinion of the court, said: “While there can be no doubt that the intention of the owner of the land was that the engine and boilers should ultimately become part of the realty, and be permanently affixed to it, ibis was subordinate to the prior intention expressed by the agreement. That fully shows her intention, and the intention of the plaintiff, that the act of annexing them to the freehold should not change or take away the character of them as chattels until the price of them had been fully paid. And as parties may, by their agreement expressing their intention so to do, preserve and continue the chattels as personal property, theie can be no doubt but that, as between themselves, the agreement in this case was fully sufficient to that end.” See, also, Sheldon v. Edwards, 35 N. Y. 279; Shell v. Haywood, 16 Pa. 523.

In Godard v. Gould, 14 Barb. 662, it appeared that machinery was to be manufactured and set up in the mill of the owner of the freehold. By special agreement the machinery was to remain the property of the manufacturer until it was paid for. It was so put into the mill that it could be removed without material injury, although the attachment was such that without such agreement it would become a part of the realty. It was held that by the annexation it did not become a part of the realty, so as to pass by a deed of the mill and lot,, but that it continued to be the personal property of the party who manufactured it, so long as the purchase money remained unpaid. The court say, upon the facts, “that the machinery did not, by the annexation, become part of the realty, but continued to be personal property, and belonged to the plaintiffs. * * * The deed of Stoddard and wife (the owners of the freehold) to the defendants did not affect the right of the plaintiff to the machinery. The machinery being personal property, the grantors could not convey a greater interest in it than they had. * * * Nor does the fact that the defendants are bona fide grantees in the conveyance make any difference. The plaintiffs in no way consented to the conveyance ; they have not practiced any fraud on the defendants; their equities are at least equal to those of the defendants.”

The rule as to trade fixtures between landlord and tenant, arising from the presumption that their annexation was accessory to the trade or calling of the tenant, and not to the land, is another illustration of the rule that the intention with which the annexation is made will control as to whether the article attached has become a permanent fixture or not. This rule, manifestly, would not apply to such articles as enter into and form parts of a structure appurtenant to land, such as lumber, stone and shingles, or to doors, windows and grates, and the like articles which are incorporated into the structure, for their removal would, pro tanto at least, be a destruction of the appurtenance. All these, and like articles thus used, lose their identity and become a necessary part of the building, fence, or other structure, and are clearly distinguishable from such articles as are or may be merely annexed to the freehold, or some appurtenant thereof, and which, retaining their individual characteristics, may be removed in their entirety, and without material injury. Such articles, although placed upon or even attached to the land, may or may not be fixtures, depending upon the mode of attachment and the intention of the parties. Such articles, as in the case of portable mills, engines, boilers, and the like, must, in the nature of things, be more or less firmly affixed to the soil, or some appurtenant thereto, before they can be put to the use for which they are designed. It may be conceded that such articles, even slightly affixed to the realty, will, in the absence of circumstances raising a contrary presumption, or evidence showing a contrary intention, be presumed to have been attached as permanent accessions to the soil; yet it is apparent, from the authorities, that however permanently attached, if removable without material injury, the intention, to be inferred from the circumstances, and the relation of the parties to each other and to the realty, or as shown by evidence, will be of controlling and decisive importance.

Testing this case by this rule, it is evident that the engine and boiler, on the 7th of July, when the last chattel mortgage was given, as between Kempster and his. vendor, Marsh, was personal property, and liable to be taken under the chattel mortgage of April 4, and sold to satisfy the indebtedness thereby secured. By the execution and delivery of the last chattel mortgage, Kempster was carrying out his original agreement to secure the purchase money by a chattel mortgage on the thing purchased by him of Marsh, until it was paid. But, independent of this, by his chattel mortgage of July 7, Kempster sold, conveyed and confirmed the property as goods and chattels. "He therein described the property as “all and singular of the following described goods and chattels, to-wit., one engine and boiler, (described in detail,) located and used by said Kempster upon his brick-yard, in the township of Jefferson, Cook county, Illinois, and more particularly described as block 14, in Jackson’s subdivision of the south-east quarter of section 11, and south-west quarter of section 12, township 40, range 12,” etc., and covenanted that in case of default in the payment of the notes therein mentioned and secured, Marsh, his heirs or assigns, might take possession of the mortgaged property, and every part thereof, remove and sell the same to satisfy such indebtedness. It is also shown that the extension of time of payment was made at Kempster’s request, and he being wholly insolvent, was made upon the express condition and agreement that he would secure the debt by chattel mortgage on this property. He would be estopped from asserting contrary to the expressed covenants of his deed, and any change Kempster may have made in the attachment of this machinery to the soil, if any, was, as to him, made in strict subordination to the lien of this chattel mortgage.

In respect to the character of evidence required to show that the chattel shall retain its character of personal property after its annexation to the freehold, the adjudged cases are at variance. In some of them, of high authority, it is held that the execution and record of a chattel mortgage will, of itself, without any special agreement that the chattel shall retain its personal character, be sufficient to prevent the article from attaching as a permanent fixture. (Ford v. Cobb, supra; Eaves v. Estes, supra.) In this case, as we have seen, it was expressly agreed that Marsh was to have a lien on the property, by chattel mortgage, to secure the purchase price until paid, which brings the case within the rule as announced by the great weight of authority. We think that where the mortgagor and mortgagee agree that the property shall be treated as personalty, and the mortgagor covenants that it shall be subject to seizure and. sale as a chattel upon the maturity and nonpayment of the debt, and where the character of the article and mode of attachment are such that it may be removed without material injury to the freehold, the article retains its character as a chattel and does not become a part of the realty. The character of attachment, here, conceding to the fullest extent that shown by the appellant’s testimony, was such as might have been made with an intention to make the articles permanent accessions to the land, or such, only, as a prudent man might, and probably would, make, to preserve and keep the machinery in place for a less time, even, than Kempster had the right of enjoyment under the terms of the chattel mortgage. Upon the most careful consideration of the evidence it will not be found that the removal of the engine and boiler would materially damage them or the realty.

Under the laws of this State, unlike that of many of the other States, chattel mortgages' are required to be filed and recorded in the office of the recorder of deeds of the county, and from the date of their filing for record are notice to all subsequent purchasers and incumbrancers, of the rights of the mortgagee thereunder in the property mortgaged. (Craig v. Dimock, 47 Ill. 319.) In Snowden v. Craig, 26 Iowa, 162, chattels subject to a recorded chattel mortgage were placed upon real estate, upon which mechanics acquired a lien under the Mechanics’ Lien law, without notice of the chattel mortgage lien, except the constructive notice by the record. And it was held “the notice imparted by the due and proper record of such an instrument, though called a constructive notice, is just as effectual for the protection of the rights of the parties as an actual notice by the word of mouth, or otherwise. Any other construction of our registry laws would effectually nullify them.”

On the 8th day of September, 1881, when the right of P. L. and 0. D. Sword, under whom appellant claims, accrued by virtue of the mortgage upon the land upon which these mortgaged chattels were situated, it is apparent the boiler and engine in controversy had not become a part of the realty, but, by virtue of the agreement and chattel mortgage mentioned, had retained their character as chattels. It is shown, also, that appellant was familiar with the premises in question before taking said real estate mortgage, and knew that they were in use upon the land, as described in the chattel mortgage. The courts are not harmonious in their holdings in respect to whether the rule that the parties may retain the personal character of chattels, annexed to the realty by express agreement, would obtain as against a subsequent grantee or incumbrancer of the freehold to which the chattels are affixed, without notice of such agreement of the parties. Without further examination of the authorities, it will be seen from what has already been said, that many cases, and as said by Mr. Tyler, (in his work on Fixtures, page 613,) the majority of the cases, perhaps, do not regard the want of such notice as controlling in cases of this sort. The later authorities have relaxed the rule of law, and have done so in consideration of the public convenience, and in the interest of trade and commerce. And while it may be objected that under this ruling the examination of title to realty will necessarily involve the examination of the chattel mortgage record, to determine whether articles apparently attached to the soil as permanent fixtures are subject to liens as personalty, we can see no hardship in holding that as to articles which necessarily retain their individual characteristics after being annexed to the soil, and which may or may not be fixtures, and which it is apparent may be removed without material injury to the freehold, the purchaser or incumbrancer of the realty will be required to take notice of what is apparent upon the public record. It will not be questioned that he would be required to take notice of judgment liens, although not apparent upon the land record. So, also, of tax liens, although the same are not apparent upon the land record nor kept in the office of the recorder of deeds. Here, the character of the property was such, that before it could be put to use it must necessarily be placed upon and so attached to the land as that it might, and would, if so intended, become a fixture. The parties had done everything in their power, by a compliance with the statutes óf the State, to preserve this lien. If the lien may not thus be preserved,, no one could buy, on time, property which may become a fixture, and secure the purchase money by a chattel mortgage thereon, for so soon as it is put into use the lien of the mortgage would be extinguished.

We are of opinion in this case, that the chattel character of the property was preserved, and that by virtue of the real estate mortgage of September 8, 1881, no lien was created upon the' engine and boiler in question, as against the chattel mortgage thereon. Further characterizing this property, it is shown that • as between Jackson, the owner of the fee, and Kempster and Marsh, the boiler and engine in question were treated and regarded as personal property. It appears that on December 5, 1881, the purchase money, under the contract for the sale of the land by Kempster from Jackson, being due and unpaid, Jackson brought forcible detainer against Kempster to recover possession of the land, and on the 17th of that month recovered judgment therein. Low, agent of Marsh, learning of the institution of the suit, was about to foreclose the chattel mortgage. Jackson at once disclaimed any right to or interest in the boiler and engine, recognized the lien of the chattel mortgage, and requested Low to permit the boiler and engine to remain upon the premises, in possession of Kempster, as long as he could without prejudice to his chattel mortgage lien, to which Low assented, upon the express agreement of Jackson that there should be no opposition to his entering, at any time, and foreclosing the chattel mortgage. This arrangement was made at Kempster’s request, and by an arrangement between him and Jackson the writ of possession in forcible detainer was stayed until the 7th day of January, 1882, the day of the maturity of the chattel mortgage. It appears, affirmatively, and by a clear preponderance of evidence, that several days before appellant paid Jackson the consideration for the land, and caused the deed to be made from Jackson to Kempster, and from Kempster and wife to himself, he was fully apprised of all the facts and circumstances connected with the sale of the chattels to Kempster, the tailing of the various chattel mortgages thereon, and of the agreement and understanding between Kempster and Marsh in respect to the chattel mortgage hen on said property to secure the purchase money. At the time, therefore, of the making of the real estate mortgage in September, 1881, and at the time of Jackson’s conveyance to Kempster, and by Kempster and wife to Sword, the grantees in said mortgage and deed were chargeable with notice of the chattel mortgage of Marsh, and the purpose and intention of the parties in respect of this property, as disclosed thereby. Appellant, under neither of his claims, has superior equity, or stands in any better or different position, in respect to the chattels in controversy, than his grantors stood, and is entitled to no different relief, in equity, than Kempster would have been had he filed this bill after acquiring the title from Jackson. The decree of the Superior Court dissolving the injunction, dismissing the bill, and for costs, was properly rendered.

It is also urged that the court erred in awarding damages upon suggestions filed at the dissolution of the injunction. It is not, as we understand counsel, contended that the items in respect of which the damages were assessed are not proper elements of damage, but that the amount found and allowed is excessive. We have carefully considered the evidence contained in the master’s report, and find that the amount, both as to the item for solicitor’s fees and for damage to the property, is sustained by the proof, and we ar§ unable, in the face of the evidence, to say they are excessive.

Finding no error in this record, the judgment of the Appellate Court will be affirmed.

Judgment affirmed.

Bheldon, Ch. J., and Craig, J., dissenting.


source: Caselaw Access Project

author: Mr. Justice Scott

license: Public Domain

text:
    The People, for the use of John Beaird et al. v The Illinois and St. Louis Railroad and Coal Company.

      Filed at Mt. Vernon November 8, 1887.

    1. RailboadS'—neglect to furnish transportation for coal not yetmined. The statute, which provides that “every railroad corporation in the State shall start and run cars for the transportation of such passengers and property as shall, within a reasonable time previous thereto, be ready or offered for transportation,” can not be so extended as to include coal in the earth, to be dug and raised from the mines after cars are furnished, so that the carrier, for any neglect in that regard, will be subject to the treble penalty provided in the statute.
    2. Appeal—reviewing action of Appellate Court—only as to matters of record, and upon assignment of error. The action of the Appellate Court in refusing to allow an amendment of the record on petition for a rehearing, so as to obviate an error apparent in the record, can not be reviewed by this court, when such refusal is not assigned for error, and when the stipulation of the parties to amend the transcript of the record from the trial court is not made a part of the record of the proceedings in the Appellate Court.
    3. Same—what becomes apart of the record. The statement of the clerk of the Appellate Court, that a stipulation of the parties in a case was filed in that court, giving a copy thereof, will not make the stipulation a part of the reetird.
    4. Same—examining opinion of Appellate Cov/rt—reviewing facts. This court can not look into the opinion of the Appellate Court to learn on what its judgment was based, nor will it examine, the evidence to ascertain whether the Appellate Court found correctly as to the facts in the case.
    5. Same—non-recital of facts by Appellate Court. If the Appellate Court does not recite the facts of the case in its final order, it will be deemed to have found them the same as the trial court.
    Writ of Error to the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. George W. Wall, Judge, presiding.
    Mr, B. A. Halbert, and Mr. E. L. Thomas, for the plaintiffs in error.
    Messrs. G. & G. A. Koer'ner, for the defendant in error.
   Mr. Justice Scott

delivered the opinion of the Court:

This cause was originally commenced by John Beaird and Charles Schroeter, as partners, against the Illinois and St. Louis Bailroad and Coal Company, in the circuit court, to recover damages for the failure of defendant to furnish cars and transport coal for plaintiffs, as it is alleged it was its duty under the law. It seems, however, the trial in the circuit court was had on an amended declaration, filed by leave of court on the 7th day of March, 1883, in which plaintiffs claimed treble damages, under the statute, for the failure of the defendant to perform the duty it is alleged it owed to plaintiffs in that regard. Among other pleas to that amended declaration there was one of the Statute of Limitations of two years, to which it appears 'the trial court sustained a demurrer. At the trial, plaintiffs obtained a verdict, upon which the court rendered judgment. That judgment, on the appeal of defendant, was reversed by the Appellate Court for the Fourth District, and judgment rendered against plaintiffs for costs.

The errors assigned upon the record of the Appellate Court are, first, the Appellate Court erred in reversing the judgment of the circuit court; and second, the Appellate Court erred in not affirming the judgment of the circuit court.

The first point made against the judgment of the Appellate Court is, that court found the circuit court erred in sustaining a demurrer to the plea of the Statute of Limitations of two years, pleaded to the amended declaration filed March 7, 1883. There is nothing in the judgment of the Appellate Court to show what that court found in regard to that plea, or anything else. It is a simple judgment of reversal, and nothing more.

Counsel suggest that other declarations, from June 9,1882, claiming treble damages by virtue of the statute, the same as the declaration of March 7, 1883, had been filed; but the Appellate Court not finding either of these declarations in the record, although admitted by both parties in their briefs to have been filed in the court below, refused to take any notice of the admission; and as the amended declaration of March 7, 1883, when compared with the first declaration, showed a new cause of action, in that it claimed treble damages under the statute, held the circuit court erred in sustaining the demurrer to the plea of the Statute of Limitations of two years. It is frankly admitted by counsel, if no such declaration had been in fact filed, the ruling of the Appellate Court would undoubtedly have been correct. It is conceded, now, that the transcript filed in the Appellate Court, and upon which that court pronounced its judgment, did not contain any intermediate declarations which it is said were in fact filed in the circuit court.

As soon as the • decision of the Appellate Court was announced, plaintiffs filed a petition for a rehearing, under the rules of that court, and in order to correct the omission in the transcript in regard to such amended declaration, it is said, by stipulation of parties, the declaration of June 9,1882, (a copy of which is also filed, and is now exhibit “B,” to the original transcript,) should be taken by the court as a part of the original record. The complaint is, the court refused to notice this amendment to the record for the reason no suggestion of diminution of record was made in apt time. There are two conclusive reasons why the action of the court in this regard can not be reviewed in tins court: First, it is not assigned for error that the Appellate Court erred in refusing to allow the transcript of the record to be amended by the stipulation of the parties; and second, the alleged stipulation of the parties to amend the transcript of the record does not appear in the record of the Appellate Court in such manner as it can be noticed by this court. The clerk of the Appellate Court states such a stipulation of parties was filed, and gives a copy of it; but that does not make it a part of the record. The record does not contain any order in regard to the stipulation of the parties whatever. There is copied into the record what seems to be a brief opinion delivered by the court at a subsequent date,—perhaps in term time, although it is not so stated in the record,—on denying the petition for a rehearing, in which it is said: “The record remains the same as when the ease was previously examined. In fact it is admitted, that without some special showing no diminution of the record could at this time be .suggested. We are compelled, therefore, to reconsider the case with reference to the two declarations appearing in the case, only.” There is no order of the court entered of record either denying or granting leave to amend the transcript of the original record, by stipulation or otherwise, and there is therefore nothing for this court to review in that regard.

The second point made is said to arise upon the construction of the statute. The amended declaration of March 7, 1883, seems to have been framed under the act of March 31, 1874, since amended by the act of 1883. (Sess. Laws of 1883, page 125.) Here, again, it may be said, as the fact is, it does not appear from the judgment, or elsewhere in the record, that the Appellate Court construed this, or any other section of the statute, in making its decision. If it were permissible to examine the published opinion of the court in this case, (19 Bradw. 141,) to ascertain what views the court entertained of the meaning of the statute under which the action was brought, it will be seen the court held that provision of the statute in regard to carrying freights, which declares, “as shall, within a reasonable time previous thereto, be ready or offered for transportation,” can not be extended so as to include coal in the earth, to be dug and raised from the mines after cars are furnished, so that the carrier, for any neglect in that regard, would be subject to the penalty of treble damages provided by the second section of the act. That construction seems reasonable, and one that this court would undoubtedly adopt as the true meaning of the statute.

Lastly it is said, as the Appellate Court did not find the facts as required by statute, upon which it based its decision, and make them a part of its judgment, it will be deemed to have found them as the trial court did. Conceding the rule to be, as it no doubt is, if the Appellate Court finds the facts differently from the trial court it must embody the same in its judgment, and unless it does so it will be taken that it found the facts as the trial court did, still it is not seen, from anything in this record, how the plaintiff is prejudiced in that respect. It is said the Appellate Court reversed the judgment of the trial court because “there is neither allegation nor proof that the appellees (plaintiffs) had coal ready, or that they offered coal for shipping.” Certainly it is not the duty of this court to examine the evidence to ascertain whether the Appellate Court found correctly as to the questions' of fact in the case. It is no doubt for that reason plaintiffs have not abstracted the evidence said to be contained in this record, for the consideration of this court.

Being unable to discover any error in the record as the case comes before this court, the judgment of the Appellate Court must be affirmed.

Judgment affirmed.


author: Mr. Chief Justice Sheldon

text:
    John Finley Hoke v. The People of the State of Illinois.

      Filed at Ottawa November 11, 1887.

    1. Conflict of laws—State and Federal jurisdiction—generally. A State has the same jurisdiction over all persons and things within its territorial limits, as any foreign nation, when that jurisdiction is not surrendered, or restrained by the constitution of the United States, and all those powers which relate to merely municipal legislation, or what may be called internal police, are not thus surrendered or restrained; and consequently, in relation to these, the authority of the States is complete, unqualified and exclusis-e.
    2. Same—State and Federal courts—concurrent jurisdiction in criminal offences—punishment under different jurisdictions for the same act. A general grant of jurisdiction to the Federal courts by act of Congress, is not, of itself, sufficient to vest exclusive jurisdiction in those courts, of all crimes and offences cognizable under the authority of the United States, unless so provided in the act.
    3. The State courts have jurisdiction to try and punish one guilty of the forgery of a draft purporting to have been drawn by a national bank, although such person may have been a clerk or book-keeper of such bank, and may be liable to punishment under section 5209 of the Revised Statutes of the United States, for the same act. .
    4. The purpose of section 5209 of the Revised Statutes of the United States, is the protection of national banks, and the punishment of breaches of trust on the part of those holding fiduciary relations toward such banks. It is not ’leveled against the common law crime of forgery, but against a breach of trust, and the offence is made only a misdemeanor. The State law against forgery is in no way repugnant to that section.
    Writ of Error to the Circuit Court of Peoria county; the Hon. T. M. Shaw, Judge, presiding.
    Messrs. Swett, Grosscup & Swett, for the plaintiff in error:
    The offence charged in the proof was cognizable in the Federal courts, and was therefore excluded from the jurisdiction of the State courts. Rev. Stat. of U. S. sec. 5209; Act of Congress of March 3, 1873, see. 1; Houston v. Moore, 5 Wheat. 1; Fox v. State, 5 How. 410; Moore v. Illinois, 14 id. 13; Ex parte Bridges, 2 Wood, 428; Ex parte Royall, 117 U. S. 253; Ex parte Houghton, 7 Fed. Rep. 657; State v. Adams, 4 Blackf. 146; Commonwealth v. Felton, 101 Mass. 204; 1 Kent’s Com. 398.
    Mr. George Hunt, Attorney General, for-the People:
    This is an offence against the State, and may be punished in the State courts. Commonwealth v. Luberg, 94 Pa. St. 85 ; Dashing v. State, 78 Ind. 357; Hammond, v. State, 14 Md. 149; Fox v. State, 5 How. 433; United States v. Marigold, 9 id. 560; People v. Kelly, 38 Cal. 145; Moore v. People, 14 How. 13.

    The crime of forgery is not identical with that created by section 5209 of the United States statute. 4 Blackstone’s Com. 436; Chitty on Crim. Law, 451; 2 Russell on Crimes, 41; Archbold’s Crim. Pl. 82; 3 Greenleaf on Evidence, sec. 36 ; Freeland v. People, 16 Ill. 380.
    That plaintiff in error has committed the offence or offences which may be punished under either or both the State and United States laws, can not deprive the State courts of jurisdiction. United States v. Marigold, 9 How. 560; Foxy v. State, 5 id. 410; Commonwealth v. Fuller, 8 Metc. 313; Harlan v. People, 1 Doug. 207; State v. Brown, 1 Hayw. 116; Phillips v. People, 55 Ill. 433; Ex parte Rogers, 10 Tex. App. 665; Gardner v. People, 20 Ill. 430; Wragg v. Penn Township, 94 id. 11; Robbins v. People, 95 id. 175.
    Mr. J. M. Niehahs, State’s Attorney, and Mr. N. E. Worthington, also for the People:
    The right to punish crime is inherent in the State, and has never been surrendered. Eells v. People, 4 Scam. 498; Commonwealth v. Luberg, 9 Pa. St. 85; Harlan v. People, 1 Doug. 210; 1 Kent’s Com. 387; 2 Story on Const. 619; Serg. on Const. Law, 275; Colder v. Bull, 3 Dall. 386; Sturges v. Crow

      ingshield, 4 Wheat. 193; Dunne v. People, 94 Ill. 141; Hawthorne v. People, 109 id. 302.
    The offence is not the same under both laws. Any individual, whether connected with a national bank or not, who unlawfully takes a bill of exchange signed in blank by the cashier of a bank, fills up the blank, and negotiates it with intent to defraud, is guilty of forgery. Wilson v. South Park Commissioners, 70 Ill, 46; 2 Russell on Crimes, 321; Archbold’s Crim. Pr. 342; Rex v. Birket, 1 British C. C. 86; Regina v. Bateman, 1 Cox C. C. 186; Regina v. Beard, 34 Eng. C. L. 497; Kroeger v. State, 47 Mo. 552; People v. Graham, 6 Park. Cr. 135.
    An individual may, by the same act, subject himself to liabilities to different jurisdictions; and yet this is not double punishment where the status of the offences is different. Fox v. State, 5 How. 410; Moore v. State, 14 id. 13; United States v. Marigold, 9 id. 560; Hendrick’s case, 5 Leigh, 707.
    Two offences may be included in the same act. Hankins v. People, 106 Ill. 628.
    The same act may constitute an offence both against the .State and a municipal corporation, and both may punish it without violation of any constitutional principle. Robbins v. People, 95 Ill. 175; Cooley’s Const. Lim. 199.
    That the same act may be an offence against two different jurisdictions is no longer an open question. Ambrose v. State, 6 Ind. 351; Hankins v. People, 106 Ill. 629.
    - And may be a violation of distinct and different laws, and punishment may be inflicted by different sovereignties. Eells v. People, 4 Scam. 514.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

The plaintiff in error, John Finley Hoke, was convicted of -the crime of forging a draft for $1000, purporting to be drawn by the Merchants’ National Bank of Peoria; upon the Merchants’ Exchange National Bank of New "York, of the date of September 1, 1885, and was sentenced to imprisonment in the penitentiary for the term of five years.

It appears from the evidence that Hoke was a book-keeper in the Merchants’ National Bank of Peoria, a corporation organized under the National Banking act, and there he, without authority, filled up, in his handwriting, the draft in question,, which had been signed in blank by the assistant cashier, and delivered the same to one Gf. I. Brówn in payment of margins-upon certain deals of Hoke on the board of trade, and that no-money was paid therefor by Brown to Hoke or the bank. Hoke at the time made false and untrue entries in the books of the-bank, in order to conceal the fact of the unlawful issuance of the draft. The draft was afterward paid by the Merchants’' National Bank in the ordinary course of business.

Counsel for plaintiff in error, in the opening of their written argument, say: “We desire expressly to restrict the review of this case to but one question, viz: Did the court have jurisdiction, and did it err in refusing appellant’s instructions on that point ? We contend that the offence charged in the proof against appellant was cognizable in the Federal courts, and was therefore excluded from the jurisdiction of the State court.”'

Section 5209 of the Revised Statutes of the United States is-as follows:

’ “Every president, director, cashier, teller, clerk or agent of any association, (referring to national banks,) who embezzles, abstracts or willfully misapplies any of the moneys, funds or credits of the association,' or who, without authority from the■ directors, issues or puts in circulation any of the notes of the-association, or who, without such authority, issues or puts-forth any certificate of deposit, d/raws any order or bill of exchange, makes any acceptance, assigns any note, bond, draft,, bill of exchange, mortgage, judgment or decree, or who makes any false entry in any book, report or statement of the association, with intent, in either case, to injure or defraud thet association, or any other company, body politic or corporate,, or any individual person, or to deceive any officer of the association, or any agent appointed to examine the affairs of any such association, and every person who, with like intent, aids, or abets any officer, clerk or agent in any violation of this' section, shall be deemed guilty of a misdemeanor, and shall be imprisoned not less than five years nor more than ten.”

It is urged that the offence established by the proof upon the trial of this case, is an offence under this section of the statutes of the United States, and that, being an offence thereunder, it is punishable in the United States courts alone.

The act of Congress, March 3, 1875, (sec. 1, Sup. Eev. Stat, 173,) provides: “That the circuit courts of the United States shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, etc., * * * arising under the constitution or laws of the United States, or treaties made, etc. * * * And shall have exclusive cognizance of all crimes and offences cognizable under the authority of the United States, except as otherwise provided by law.”

Chancellor Kent, in respect of the concurrent power of the-States in matters of judicial cognizance, observes: “In the-, judicial act of 1789, the exclusive and concurrent jurisdiction, conferred upon the courts by that act were clearly distinguished, and marked. The act shows, that in the opinion of Congress, a grant of jurisdiction, generally, was not, of itself, sufficient to vest an exclusive jurisdiction. The judicial act grants exclusive jurisdiction to the circuit courts, of all crimes and offences cognizable under the authority of the United States, except where the laws of the United States should otherwise provide; and this accounts for the proviso in the act of 24th February, 1807, (c. 75,) and in the act of 10th of April, 1816, (c. 44,) concerning the forgery of the notes of the Bank of the United States, declaring that nothing in that act contained should be construed to deprive the courts of the individual. States of jurisdiction, under the laws of the several States, over offences made punishable by that act. There is a similar proviso in the act of 21st of April, 1806, (c. 49,) concerning the counterfeiting-of the current coin of the United States. Without these provisos, the State courts could not have exercised concurrent jurisdiction over those offences, consistently with the judicial act of 1789.” 1 Kent’s Com. (1st ed.) 373. And yet, in Prigg v. Pennsylvania, 16 Pet. 627, in asserting the exclusive power of Congress over the subject of fugitive slaves, Justice Story observes: “To guard, however, against any possible misconstruction of our views, it is proper to state, that we are by no means to be understood, in any manner whatever, to doubt or to interfere with the police power belonging to the States in virtue of their general sovereignty. That police power extends over all subjects within the territorial limits of the States, and has never been conceded to the United States.” And in City of New York v. Miln, 11 Pet. 138, it was said: “That a State has the same undeniable and unlimited jurisdiction over all persons and things, within its territorial limits, as any foreign nation, where that jurisdiction is not surrendered, or restrained by the constitution of the United States. * * * That all those powers which relate to merely municipal legislation, or what may, perhaps, more properly be called internal police, are not thus surrendered or restrained; and that, consequently, in relation to these the authority of the State is complete, unqualified and exclusive.”

In Eells v. The People, 4 Scam. 498, Bells had been indicted under a statute of this State making it an offence to harbor and secrete any negro slave, or to hinder or prevent the lawful owner of such slave from re-taking him, and the point was made in the defence, but hot sustained, that the offence described in the indictment was precisely such an offence as was indictable under the fugitive slave law of Congress of 1793. The Court, by Shields, J., there said: “This (the State) law prescribes a rule of conduct for our own citizens. If the State can do this, (and I hardly think the power questionable,) it can punish those who violate the rule. If a State has power to regulate its own affairs, it has the power to define offences and punish offenders.” And again: “It is also said that this law may punish a man twice for the same offence. There is no force whatsoever in this objection. The offences are separate and distinct,—violations of distinct and different laws,—and the punishments inflicted by different sovereignties.” The conviction in the case was affirmed by the Supreme Court of the United States in Moore v. The People, 14 How. 13, Moore being the executor of Eells. It was there said by the court: “But admitting that the plaintiff in error may be liable to an action, under the act of Congress, for the same acts of harboring and preventing the owner from ré-taking his slave, it does not follow that he would be twice punished for the same offence. * * * The same act may be an offence or transgression of the laws of both,” (State and United States,) for which, as afterwards said, the offender is justly punishable. And it was there further said: “The power to make municipal regulations for the restraint and punishment of crime, for the preservation of the health and morals of her citizens, and of the public peace, has never been surrendered by the States or restrained by the constitution of the United States.”

The indictment in this case is for the crime of forgery. In the offence described in section 5209, above, of the United States law, which is claimed as being the same as that shown by the proof here, the offender is an officer or clerk of a national bank, who, without authority from the directors, draws any order or bill of exchange, with intent to injure or defraud, etc. The offences do not appear to be the same. Under this indict-1 ment for forgery there could not, we apprehend, be a conviction . for the offence described in section 5209. Nor would an indictment charging merely the offence described in that section, ¡sustain a conviction for forgery. The objects of the United ' States law and the State law appear to be different. The purpose of the former seems to be for the protection of national banks; to punish breaches of trust on the part of those holding fiduciary relations toward such banks; to punish what is of the nature of a private crime. The State law is for the protection of the public against the public mischief to the people of the State from the perpetration of-forgeries. The United States statute is not leveled against the crime of forgery, but against a breach of trust. The offence is called but a misdemeanor. There is no apt language in section 5209 to describe forgery. Whenever Congress has legislated with respect to that offence, it has used the language which is appropriate for its description. Thus, under title 70, (Eev. Stat. of U. S.) section 5414 provides: “Every person who, with intent to defraud, falsely makes, forges, counterfeits or alters any obligation,” etc., of the United States, shall be punished by a fine of not more than $5000, and by imprisonment at hard labor not more than fifteen years. Section 5415 : “Every person who falsely makes, forges or counterfeits,” etc., any of the circulating notes of any banking association authorized by the United States, shall be imprisoned at hard labor, not less than five nor more than fifteen years, and fined not more than $1000. And so of other sections providing for the punishment of forgery, where the United States may be injured, the description of the offence is in the like apt language. The punishment there denounced against the crime of forgery is greater than that prescribed in section 5209 for the breach of trust there made punishable, exceeding it by five years in extent of imprisonment. And section 5328, under this same title, (70,) declares, “nothing in this title shall be held to take away or impair the jurisdiction of the courts of the several States under the laws thereof.”

There is thus manifestation in the legislation of Congress that section 5209 is not directed against the crime of forgery; that the offence provided against in that section is of less degree than that of forgery; and that it was not the intent to suspend, in any respect, the jurisdiction of the State courts over the crime of forgery under State laws, inasmuch as the United States law providing for the punishment of forgery declares that nothing therein shall be held to take away or impair the jurisdiction of the State courts under State laws. The State law is in no way repugnant to section 5209, and is not at all in the way of supplement to the legislation therein. It is but a statute for the punishment of the common law crime of forgery. Because it happens to appear in the proof in this case that the wrongdoer was the clerk of a national bank, and that the draft was drawn without authority from the directors of the bank, thus presenting the peculiar elements which constitute the offence in said section 5209, and because, may be, the proof shows nothing more than what amounts to the offence described in that section, we do not think that thereby the jurisdiction of the State court over the crime of forgery should be taken to be suspended.

The cases cited in behalf of the plaintiff in error are mostly cases relating particularly to the execution of some Federal statute, or to some act done within some Federal tribunal. The distinction is taken in State v. Pike, 15 N. H. 83, between cases where the alleged criminal act is done in the course of the execution of the laws of the United States, and where not so done, and favoring the idea that the exclusive jurisdiction of the Federal courts may exist in the former class of. eases, and not in the latter. The same distinction was recognized in The People v. Kelly, 38 Cal. 145, as one properly taken. The offence here charged was not committed in the course of the administration of any law of the United States. In Commonwealth v. Luberg, 94 Pa. St. 85, a conviction in the State court, of the offence of making false entries in the books of a national bank by the receiving teller of the bank, was sustained. But in Commonwealth v. Felton, 101 Mass. 204, it was held that the offence of the embezzlement of the funds of a national bank by its cashier was exclusively cognizable by the courts of the United States, and that it was taken out of the jurisdiction of the State court, by the acts of Congress.

While the case does not seem to be entirely clear, upon the authorities, we are disposed to hold that the crime charged in the indictment, or that established by the proof, is not excluded from the jurisdiction of the State court.

The judgment will he affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    Henry H. Gage v. Fred C. Curtis et al.

      Filed at Ottawa November 11, 1887.

    1. Cloud upon title—who may complain—remedy at law or in chancery. Unless the complainant is in possession of the land, or it is vacant and unoccupied, a bill will not lie to have a deed set aside as a cloud on the title; and where the bill fails to show such jurisdiction al fact, no relief can be granted, but the party will be left to his remedy at law by action of ejectment.
    2. Allegations and proofs—must correspond—on bill to remove cloud upon title. On bill to set aside certain tax deeds as clouds on the title of complainant, it is error to set aside any tax deeds other than those described in the bill as affecting the title. A complainant must stand or fall by the case he makes in his bill.
    3. The validity of a tax deed, not described in a bill to remove clouds on the title to land, can not be insisted upon by the defendant as a defence to the suit, and much less can it be considered and condemned at the instance of the complainant, when no relief is asked in respect to it.
    Writ of Error to the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Fred C. Curtis, Jacob Swart and Allen Bowersax filed their hill in chancery in the Superior Court of Cook county, against Henry H. Gage, alleging therein that they are the owners of certain lots in the Superior Court partition of the south-east quarter of the south-east quarter of section 22, township 38 north, range 14 east, in Cook county; that the property was owned by B. C. Fisher, M. A. Fisher, Goudy, Quackenbush and Armstrong, in undivided interests, and they procured a partition thereof by proceedings in the Superior Court of Cook county; that the commissioners appointed to make the partition divided the property into lots, and apportioned it among the several owners aforesaid, which was confirmed by the Superior Court; that the complainants derive title by conveyance from Bachel C. Fisher to the lots set off to her, as follows : Curtis owns 1, 2, 26, 27, 41, 42, 43, 64, 65, 66, 78, 79, 80, 81, 90, 91, 92, 110, 111, 112, 113, 117, 123, 124, 125, 130 and 131; Swart owns lots 52, 53, 93 and 116, and Bowersax owns lots 40, 54 and 115; that Bachel C. Fisher has, at all times, paid all taxes assessed upon her undivided interest before partition, and upon her lots after partition, up to the time of conveyance to complainants, since which time complainants have paid the same, so that there is no claim of any unpaid taxes or assessments against said lots. It is further therein alleged, that in 1870 the taxes on the undivided half of the land, other than the interests of said Fisher, were forfeited to the State, and added to the taxes of 1873 on the whole of the land, instead of being extended against an undivided half thereof; that in 1871 the taxes on an undivided quarter were also forfeited, and added to the tax of the whole, and on October 30, A. D. 1875, an undivided quarter of said quarter section was sold to Henry H. Gage for the tax of 1871, and an undivided half of said quarter section was sold to him for the taxes of 1870, and, not being redeemed, a deed was issued to him on March 13, 1877; that Bachel C. Fisher paid one-fourth of the second installment of the South Park assessment on said tract; that an owner of another undivided quarter appealed from the judgment therefor, but notwithstanding such appeal, sale was made to Henry H. Gage on December 4, 1874, and a deed was issued thereon to him on the 16th of October, 1877; that Gage claims to have paid some tax or assessments on undivided interests in the said land, and on some lots in the subdivision, but that no such payments were or had been made for the taxes on the undivided interests of Eachel C. Fisher, nor upon any of the land set off to her; that complainants do not know who are the owners of the tracts so sold, but they say Eachel 0. Fisher was not, and that all taxes upon her undivided quarter of the land, and the lots allotted to her, have been paid by her or her grantees and complainants. It is also further therein alleged, that Gage claims to be the owner by reason of such sale and conveyances of an undivided quarter and an undivided half of all lots so owned by complainants, and that he is entitled to the possession thereof, notwithstanding Eachel C. Fisher had paid in full all taxes levied and assessed upon her undivided fourth; that complainants have requested Gage and the owners of the other undivided interests to have the cloud removed, but they refuse to do so. The prayer is for an answer, but not under oath, and that it be decreed that Eachel C. Fisher’s undivided quarter was not sold or conveyed oil account of or for non-payment of taxes, and for general relief.
    Henry H. Gage answered, that while seeking the aid of a court of equity, complainants do not offer to do equity. He denies the ownership claimed by the complainants, and alleges that he is, himself, the owner of the lots claimed by the complainants, and also that he owns the whole south-east quarter of the south-east quarter of section 22, township 38 north, range 14, west, derived by and through divers tax titles, and that his tax titles are evidenced by divers tax deeds, which said deeds are in his possession and ready to be produced at the hearing, as the court shall direct; and the other material allegations of the bill were denied. There was a replication to the answer, and, on hearing, the court found and decreed as follows, namely:

      “That on January 11,1872, Rachel C. Fisher was the owner, in fee simple, of the undivided one-fourth of the south-east quarter of the south-east quarter of said section 22; that Martha A. Fisher owned a fourth, William 0. Goudy owned a fourth, Peter Quackenbush an eighth, and Jonathan P. Armstrong an eighth; that afterwards Rachel C. Fisher caused a partition thereof to he made in the Superior Court of Cook county, and the same was partitioned into 140 lots, on January 14,1877, of which lots Rachel C. Fisher was decreed to be the owner of lots mentioned in the bill; that Rachel C. Fisher has, at all times, (except in the case of the taxes of 1879, as hereinafter stated,) paid or duly redeemed from tax sale all taxes and all assessments levied on her undivided interest, and that after the partition, and until she sold them, (except in the ■case of the taxes of 1879,) for which year, however, said Henry H. Gage paid said taxes, under a claim of ownership or interest by virtue of the tax titles herein set forth, and there was no sale of any part of said property for taxes, imposition ■or assessment for that year, and that said conqilainant, her .grantees, respectively, paid all taxes and assessments levied or assessed against their respective lots down to the filing of said hill, so there was then no valid claim for any unpaid or unredeemed taxes or assessments against either the said undivided one-fourth interest, or against the said lots so set off to her, ■owned by the complainants, respectively, as aforesaid.
    “It further appears to the court that the complainants offered in evidence the following tax deeds, disclaiming any intention io prove the validity thereof, but claim that said deeds, each and all of them, and the sales therein recited, cast a cloud upon the title to the lots so owned by them, which said deeds were received and allowed to he read in evidence for that purpose, to-wit: First, tax deed dated June 20,1877, to Henry H. Gage, .recorded June 22, 1877, reciting sale of October 7, 1874, conveying an undivided half of the south-east quarter of the southeast quarter, aforesaid; second, tax deed to Henry H. Gage, dated March 13, 1877, recorded March 23, 1877, conveying to Henry H. Gage an undivided quarter of the south-east quarter of the south-east quarter aforesaid, reciting sale of October 30, 1874; third, tax deed to Henry H. Gage, dated March 13, 1877, recorded March 26, 1877, conveying an undivided quarter of the south-east quarter of the south-east quarter aforesaid, reciting sale of October 30, 1874; fourth, tax deed to Henry H. Gage, dated October 15, 1877, recorded October 19, 1877, conveying an undivided one-eighth of said forty acres, reciting sale of December 2, 1874; fifth, tax deed to Henry H. Gage, dated October 16, 1877, recorded October 20, Í877, conveying an undivided one-eighth of said forty-acre tract, reciting sale of December 2, 1874; sixth, tax deed to Henry H. Gage, dated June 26, 1880, recorded June 29, 1880, conveying an undivided quarter of said forty-acre tract, reciting sale of August 14, 1877; seventh, tax deed to Henry H. Gage, dated July 2, 1880, recorded July 3, 1880, conveying an undivided one-eighth of said forty-acre tract, reciting sale of August 14, 1877; eighth, tax deed to Henry H. Gage, dated July 15, 1880, recorded July 17, 1880, conveying an undivided one-eighth of said forty-acre tract, reciting sale of August 14,1877; ninth, tax deed to Henry H. Gage, dated June 30, 1880, recorded July 1, 1880, conveying an undivided fractional part of said forty-acre tract, reciting sale of September 4, 1877;; tenth, tax deed to Henry H. Gage, dated July 14, 1880, recorded July 15, 1880, conveying an undivided five-eighths of said forty-acre tract, reciting sale of September 4,- 1877.
    “It further appearing to the court that said several sales mentioned in said tax deeds were not sales of the undivided one-fourtli of said Eachel 0. Fisher, but by reason thereof there exists a cloud on the title of her interest and the lots so-divided and set off to her, as aforesaid, which, at the time of the filing of the bill, were owned by the complainants; that the equities are with the complainants, and it is ordered and decreed that each, every and all of the taxes, impositions and assessments for or on account of which each, every and all the sales hereinabove described and set forth, as far as they relate to or concern the said undivided one-fourth interest of said Eachel C. Fisher in said tract of land and the lots set off to her, were fully paid and discharged before such sale, or (in cases where sales were made) were by her duly redeemed, discharged and cancelled in apt time, and such taxes and assessments, each and every of them, the said sales, each and every of them, and the said hereinbefore described tax deeds, each and every of them, from and after the time of such payments and such redemptions, have not and do not now constitute or exist as any claim, lien, charge, imposition, cloud or incumbrance upon or against the said Eachel C. Fisher’s undivided one-fourth interest, or the lots so set off to her, nor any of them; that the pretended claim of title to said undivided quarter of said Eachel G. Fisher, and to the several lots set off to her, made by Henry H. Gage in that behalf, are false and fraudulent in fact, law and equity, and of no valid standing, force or effect whatever, and the apparent cloud so by reason of the premises aforesaid existing against or upon said undivided one-fourth interest of said Eachel C. Fisher, as well as the apparent clouds so existing upon or against the title of said complainants, and each of them, in and to the lots, (the lots aforesaid, alleged to be set off to Eachel C. Fisher,) and each and every of them, be and the same are hereby set aside, dispelled, removed, cleared off, and that title to said several lots so set off to her, the said Eachel C. Fisher, is hereby released, cleared and forever discharged therefrom.
    “It is further ordered, adjudged and decreed that Henry H. Gage pay the costs of this action, and thereupon he prays an appeal to the Supreme Court, which is granted on his filing bond in $300, and a certificate of evidence in twenty days.”
    Mr. Augustus N. Gage, for the plaintiff in error:
    There are only two cases under our law where a court of equity may entertain a bill to remove a cloud from the title to real estate. The first is where the complainant is in possession of the property, and the second is where the property is vacant and unoccupied. Rev. Stat. 1874, sec. 50, chap. 22; Hardin v. Jones, 86 Ill. 313; Gage v. Abbott, 99 id. 366, and cases cited; Gage v. Griffin, 103 id. 41.
    He who seeks equity must do equity, and a complainant must come with a clean conscience. Reed v. Tyler, 56 Ill. 288; Barnett v. Cline, 60 id. 205; Farwell v. Harding, 96 id. 32; Gage v. Busse, 102 id. 592.
    The allegations and proofs are at variance. Hyde v. Heath, 75 Ill. 381; Gage v. Reed, 104 id. 509.
    Mr. J. A. Sleeper, for the defendant in error.
   Mr. Justice Scholfield

delivered the opinion of the Court;

There are two grounds upon which the decree below must be reversed, without regard to whether the other grounds are well urged.

First—It is neither alleged that complainants are in possession of the property, nor that it is vacant and unoccupied, without one of which allegations the complainants must be remitted to their remedy at law, by action of ejectment. Gage v. Griffin, 103 Ill. 41; Hardin v. Jones, 86 id. 313; Gage v. Abbott, 99 id. 366.

Second — The deeds described in the bill, and which are-sought to be removed as clouds, are, first, a deed made on March 13,1877, pursuant to a sale made on October 30,1875 ;, and second, a deed made on October 16, 1877, pursuant to a sale made on December 4, 1874. But the decree describes, first, deed dated June 20, 1877, made pursuant to a sale on October 7, 1874; second, deed dated March 13, 1877, made-pursuant to sale on October 30, 1874; third, deed dated March 13, 1877, pursuant to sale on October 30, 1874; fourth, deed dated October 15,1877, pursuant to sale on December 2,1874; fifth, deed dated October 16, 1877, pursuant to sale on Decernher 2, 1874; sixth, deed Hated June 26, 1880, pursuant to sale on August 14, 1877; seventh, deed dated July 2, 1880, pursuant to sale on August 14,1877; eighth, deed dated July-15, 1880, pursuant to sale on August 14, 1877; ninth, deed dated June 30, 1880, pursuant to sale on September 4,1877; tenth, deed dated July 14, 1880, pursuant to sale on September 4, 1877. And it is afterwards decreed, that “the herein-before described tax deeds, each and every of them, from and after the time of such payments and such redemptions, have not and do not now constitute or exist as any claim, lien, charge, imposition, cloud or incumbrance upon or against the said Eachel C. Fisher’s undivided one-fourth interest, or the lots so set off to her, nor any of them, * * * and the apparent cloud so by reason of the premises aforesaid existing against or upon said undivided one-fourth interest of said Eachel C. Fisher, as well as the apparent clouds so existing upon or against the title of said complainants, and each of them, in and to the lots, * * * and each and every of them, be and the same is hereby set aside, dispelled, removed, cleared off.” The rule is, that the complainant must stand or fall by the case he makes in his bill. (White v. Morrison, 11 Ill. 361; Rowan v. Bowles, 21 id. 17; Chaffin v. Heirs of Kimball, 23 id. 36; Ohling v. Luitjens, 32 id. 23.) And the decree must conform to the prayer of the bill. Ward v. Enders, 29 Ill. 519 ; Hall et al. v. Towne, 45 id. 493.

The validity of the deeds not described in the bill could not have been insisted on by the defendant as a defence to the suit. [Gage v. Mayer, 117 Ill. 632; Parker v. Shannon, 114 id, 192.) Much less could they be considered and condemned at the instance of the complainant, when they were not described, and no relief was asked respecting them in the complainant’s bill.

The decree is reversed and the cause remanded.

Decree reversed.