text:
    John S. Durand v. Henrietta Weightman et al.

      Filed at Ottawa January 23, 1884.

    1. Fraudulent conveyance—voluntary settlement good as to subsequent creditors. A voluntary settlement of property by a husband upon his wife can be assailed only by his existing creditors. A party out of debt can make a settlement of his property on whom he pleases, if done in good faith, and any one dealing with him after such settlement is made a matter of record, will have no right to assail it, or say it was fraudulent as to him.
    2. Where a husband conveyed land to bis wife as a voluntary settlement for her future maintenance, retaining at the time personal property amply sufficient to discharge all his liabilities, without any intention thereby to defraud any existing or subsequent creditors, the same will be good as against such subsequent creditors.
    3. Evidence'—declarations of grantor to defeat grant. As a general rule a grantor, after he has made and delivered his deed, will not be permitted to disparage his grantee’s title by subsequent declarations made in the absence of the grantee.

      4. Deed—takes no effect jintil delivered. Where a party took a deed made by her to her son, and a deed from the son to his father, as soon as prepared and acknowledged, neither of which was ever delivered to either her son or husband, but were retained by her with the express understanding that they were not to be delivered unless she died before her husband, and the husband died before the wife, it was held, that the deeds never took eifect so as to vest the title in the grantees, or either of them.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Kane county; the Hon. Clark W. Upton, Judge, presiding.
    Mr. J. W. Ranstead, and Mr. D. B. Sherwood, for the appellant :
    In the case of a voluntary conveyance the intent of the grantor, and not that of the grantee, is the one which governs the question of its validity. Mohawk Bank v. Atwater, 2 Paige, 54.

      Where the facts show an intent to defraud antecedent creditors, such proof is prima facie evidence of an intent to defraud subsequent creditors. Bump on Fraudulent Conveyances, 414.
    If the grantee has participated in the fraudulent purpose evincing a conspiracy to defraud, the declarations of the grantor, made after the conveyance is made,'are competent evidence. Jones v. King, 86 Ill. 227; 2 Phillips on Evidence, note, 180; Cowen & Hill’s notes, p. 177; also, note 452, p. 602, note 481, p. 652; Bump on Fraudulent Conveyances, 567, 569.
    A subsequent creditor may attack a voluntary conveyance made with intent to defraud preexisting creditors. Jones v. King, 86 Ill. 227; Griffin v. First National Bank, 74 id. 259; Hook v. Mowre, 17 Iowa, 197; Damon v. Bryant, 19 Mass. 41; King v. Wilcox, 11 Paige, 589.
    A delivery of a deed may be made by such words and acts as indicate a present intention to part with the title. LeClure v. Colcough, 17 Ala. 89; Mullett v. Paige, 8 Ind. 364; Stevens v. Hatch, 6 Minn. 64.
    It is sufficient if there be an intention of the mind to treat the instrument as a deed. Byers v. McClannahan, 6 Gill & J. 250; Stuart v. Redditt, 3 Md. 67; Crawford v. Bertheof 1 N. J. Eq. 458; Thompson v. Hammond, 1 Edw. (N. Y.) 497.
    A formal delivery of a deed is not necessary, and though left in the possession of the grantor it will pass the property, if it appears it was executed with such intent. Walker v. Walker, 42 Ill. 311; Gunnell v. Cockerill, 84 id. 319; Farrar v. Bridges, 5 Humph. 44; Warren v. Sweet, 31 N. H. 332; Floyd v. Taylor, 12 Ired. Eq. (N. C.) 475; Dayton v. Newman, 19 Pa. St. 194.
    Mr. R. N. Botsfoed, for the appellees:
    The proof fails to show any intent to defraud existing creditors. . At the time of these conveyances there was no indebtedness, no pending litigation, and not even the expectancy of a suit. Even if the grantor was indebted at the time, or contingently liable, yet if he retained sufficient property to pay his present or contingent liabilities, he could lawfully make this conveyance. Moritz v. Hoffman, 35 Ill. 553; Gridley v. Watson, 53 id. 186; Mathews v. Jordan, 88 id. 602; Merrill v. Johnson, 96 id. 249; Union Ins. Co. v. Spaids, 99 id. 249.
    Subsequent creditors can not impeach such a conveyance. Ward v. Enders, 29 Ill. 519; Mixell v. Lutz, 34 id. 382; Sweeny v. Damron, 47 id. 450; Pratt v. Myers, 56 id. 23; Jackson v. Miner, 101 id. 550; Lucas v. Lucas, 103 id. 121; Tunison v. Chamblin, 88 id. 378.
    The deeds which are claimed to have reinvested the title were executed, and were not to be delivered except on a contingency, which never happened. They passed no title. Stone v. Duvall, 77 Ill. 475; Dickerson v. Merriman, 100 id. 342; Wormly v. Wormly, 98 id. 544; Wiggins v. Lusk, 12 id. 132; Stiles v. Probst, 69 id. 382; Benneson v. Aiken, 102 id. 284.
   Mr. Justice Scott

delivered the opinion of the Court:

The bill in this ease is the ordinary creditor’s bill, and was brought by John S. Durand to subject the lands described in the bill to the payment of a judgment which complainant recovered against Henry Weightman, since deceased. The title to these lands is now alleged to be in Henrietta Weight-man, who is made defendant herein. It is conceded Henry Weightman was the owner of these lands, and that on the 13th day of October, 1873, he conveyed the same to his wife, Henrietta Weightman. No money or other valuable, consideration was paid by the grantee, or any one else, to the grantor for the making of the deed. It is alleged the conveyance to defendant was fraudulent, not only as to existing creditors of the grantor, but as to subsequent creditors, of whom complainant is one. The answers of defendants are not under oath, but contain a general denial of all the allegations of the bill on which the right to relief is predicated, and assert the good faith of the transaction; that the conveyance to defendant was made with a view to settle the property on her, and was made at "a time when the grantor was not indebted to any one. Eeplications were filed to the answers of defendants, and the cause was submitted on the pleadings and proofs. The circuit court dismissed the bill for want of equity. That decree was affirmed in the Appellate Court, and the cause is to be heard in this court on the appeal of complainant.

The bill is framed on the theory the conveyance of the lands to defendant by her husband was colorable, the grantor reserving to himself a secret interest in the property, and hence fraudulent as to existing and subsequent creditors. But that hypothesis is not as well sustained as is the theory of the defence that the conveyance was a voluntary settlement of the property upon defendant, and was made at a time when her husband could make such a settlement upon her without injury to any creditors or any one else. If it was a voluntary settlement of the property upon defendant, it must be conceded it could only be assailed by existing creditors. Subsequent creditors would have no right to complain. A party out of debt can make a settlement of his property, or any portion of it, on whom he pleases, if done in good faith. Any one dealing with him after such settlement is made a matter of record, would have no right to assail it, or say it was fraudulent as to him. It does not appear, at the time of the conveyance of the property to-defendant, the grantor was indebted to any one. Before the making of the deed to his wife, he had made a contract with Squire & Bro. concerning a quantity of barley. • The better evidence seems to be, the deed to defendant was made before any controversy arose with Squire & Bro. Evidence given tends most strongly to show the barley was in the stacks when the deed was made and delivered. Afterwards a eon- • troversy did arise, growing out of the failure of the seller to deliver the barley under the alleged contract. The deed to defendant was made on the 13th day of October, 1873,' and was recorded on .the 6th day of November. No suit was commenced by Squire & Bro. against the grantor until in January, 1874. It does not appear any judgment was ever rendered in the case. It must have been adjusted in some way by the parties. But be that as it may, if a cause of action existed in favor of Squire & Bro. at the date of making the deed, the claim did not exceed $1000, and it is fully proven the grantor retained in his possession personal property amply sufficient to pay more than that amount. It must be conceded there were, and are, no antecedent creditors to complain. As to this fact in the case no question is made.

Nor is there any warrant in the evidence for assuming the deed was made as a device adopted by the grantor to avoid the payment of future indebtedness. It does not appear he has since contracted any indebtedness, except what may be due to complainant, barring a few sums insignificant in amount. It was certainly not then anticipated he would become indebted to complainant. That indebtedness was not even contracted until nearly three years after the making of the deed. It arose in this way: On or about the 18th day of January, 1876, Henry Weightman and complainant became sureties for. Charles H. Parks on a note to George D. Kenson. Parks became insolvent, and failed to pay the note. Afterwards, judgment was rendered on it in favor of the payee and against all the. makers. That judgment complainant was compelled to, and did, pay in full, with the accumulated interest and costs. Subsequently he took from Henry Weightman his note, payable to himself, for one-half of the amount he had paid to satisfy the judgment and costs. It was on that note complainant obtained the judgment against Henry Weightman, on the 12th day of December, 1878, which he now seeks by his bill to have paid out of the lands conveyed to defendant.

Treating the conveyance of the lands to defendant as having been made in good faith by her husband, as a voluntary settlement of the property upon her for her future maintenance, the lands can not be subjected to the payment of complainant’s judgment. All the evidence there is that tends to impeach the fairness of the transaction, consists wholly of statements made by the grantor, and most of them were made after the execution and delivery of the deed to defendant, to persons having no interest in the matter. As a general rule, a grantor, after he has made and delivered his deed, will not be permitted to disparage his grantee’s title by subsequent declarations, made in the absence of the grantee. But conceding the. evidence given in this case was proper to be considered, it is not of a very satisfactory character. At most it consists of casual conversations between the grantor and strangers to the transaction. His statements were not reproduced until many years after they were uttered, and not until after his death. Of course there was then no opportunity to obtain his version of the conversations detailed. Crediting all the witnesses with the utmost candor, as ought to be done, the value of their testimony is greatly weakened by the lapse of time, the imperfect understanding-in the first instance as to what was in fact said, and most of all on account of the death of the party whose statements are given, In consequence of which his own version of the conversations can not now be obtained. If living, it might be the grantor could explain many things, consistently with the utmost fairness of the transaction, that are now insisted tend to impeach it. On the other hand, the testimony given for the defence sustains the good faith of the entire transaction,—that the conveyance to defendant was to settle the property on her, that she might enjoy it to her sole use in case of the death of her husband, who was then in failing” health. If done in good faith, as the, evidence warrants the belief it was, such a provision for the wife has the sanction of the law, as being induced by a provident forethought on the part of the husband.

Stress is laid on the fact it appears that afterwards, perhaps in 1877-, defendant conveyed these lands to her son, and he conveyed the same to his father, Henry Weightman. The bill sets forth no such fact, as a ground of relief. But waiving that objection, it is clearly shown by the testimony of defendant that she took the deeds from the office of the scrivener, where they had been prepared and acknowledged; that neither of them was ever delivered either to her son or to her husband, and that it was expressly understood such deeds were not to be delivered unless she died before her husband. As she has survived her husband, the contingency on which the deeds were to be delivered can never happen. Her testimony in this respect is wholly uncontradicted by anything in the record, and no reason is shown why it should not be received as the truth of the case. As the deeds were never delivered to the grantees, or to any one for them, and as the contingency on which they were to be delivered can never happen, it follows the deeds never took -effect so as to vest the title to the property in the grantees, or either of them.

The judgment of the Appellate Court must be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Dickey

license: Public Domain

text:
    Isaac Howland v. The City of Chicago.

      Filed at Ottawa January 23, 1884.

    1. License—of livery stables, authorized by constitution. Under the. constitution of 1870 the legislature may tax certain occupations, such as that of keeping a livery stable, or authorize cities and villages to do so, provided it is done by a general law, uniform as to the class upon which it operates. Clauses 42 and 91, of section 1, article 5, of the act relating to cities and villages, confers upon a city council the power to tax ,the keepers of livery stables by a general ordinance, and such law is not unconstitutional.
    2. Under the statute granting power to incorporated cities to license and tax keepers of livery stables, a city council may prescribe the rule that such licenses shall be paid for in proportion to the number of carriages kept for hire.
    3. Under an ordinance of a city incorporated under the general law, providing that no person shall hire out, keep or use for hire, for the carrying or conveying of persons within such city, any hackney coach, etc., without a license so to do, and imposing a penalty for a violation thereof, and fixing the license fees to be paid a given sum for each carriage, etc., kept and used for hire, a conviction may be had for a breach of its provisions.
    Appeal from the Appellate Court for the First District; —heard in that court on appeal from the Criminal Court of Cook county; the Hon. Joseph E. Gaey, Judge, presiding.
    This is an action of debt for a penalty, brought against the defendant by the city of Chicago, and he was summoned to answer a charge of “keeping carriages and other vehicles for 'hire without a license for the same, in violation of section 1146 of the revised ordinances of the city of Chicago.” The police justice found the defendant guilty as charged, and entered a fine against him of $50, which, on an appeal to the Criminal Court of Cook county, was affirmed, and an appeal was prosecuted to the Appellate Court for the First District, and from the judgment of that court, affirming the judgment of the Criminal Court, the ease is brought by appeal to this court, upon a certificate of the judges of the Appellate Court that “said cause involves questions of law of such importance, both on account of principle and collateral interests, as that it should be passed upon by the Supreme Court. ”
    Appellant contends that the ordinance or ordinances under which this action is sought to be maintained are not authorized by statute, and if embraced in the statutory provisions, and if warranted by the words of the statute, such ordinance or ordinances are in contravention of the constitution.
    The following is the agreed statement of facts on which the cause was tried: “All such portions of the city ordinances
    of the city of Chicago as are involved in or are pertinent to be considered in this prosecution, as the same are published in the ‘Municipal Code of Chicago, 1881,’ shall be considered in evidence. The defendant, Isaac Howland, is, and was at the date of the commencement of this prosecution, engaged in the business of a livery stable keeper at Nos. 188 and 190 Twenty-second street, in said city, owning and having in use in his said business six carriages, for which he was obliged to furnish drivers; that none of said carriages or other vehicles stood upon, or occupied any public hack stand, or solicited custom thereat or upon the streets or at depots, or were what is commonly known as, and designated in the law or any city»ordinance as, ‘hackney coaches,’ nor did the business commonly done by hackney coaches. Said defendant has not taken out from said city of Chicago licenses upon any of his said carriages.”
    The general law relating to cities, which is the' present charter of Chicago, enumerates, in section 1, of article 5, the powers of the city council. In clause 42 of that section power is granted to license, tax and regulate hackmen, omnibus drivers, cabmen, and all others pursuing like occupations; and in clause 82, to direct the location and regulate the use and construction of livery stables; and in clause 91 power is given “to tax, license and regulate auctioneers,'distillers, brewers, lumber yards, livery stables, public scales, money changers and brokers.” By section 1146 of the ordinances of Chicago it is ordained that “no person or persons shall hire out, keep or use for hire, * * * for the carrying or conveying of persons within the city of Chicago, any hackney coach, cab, coach, omnibus, or other vehicle or vehicles, carriage or carriages, of any description or name whatever, without a license so to do.” By section 1149 it is required that before any such license shall issue to any person he shall give bond, with sureties, conditioned for observance of all ordinances regulating haekmen and drivers, and all others pursuing like employments. Section 1152 requires every livery carriage, “when driven or used for hire,” to have a designating number painted thereon, and to have a knob or handle on the inside of the door, if any, by which the door can readily be opened from the inside of the vehicle. Section 1159 imposes a fine of $10 for each offence upon any person who shall, without license, keep any vehicle for the conveyance of persons from place to place within the city for hire. Section'1160 fixes the license fees to be paid for such licenses, —that for omnibuses running in connection with hotels, or ’upon established lines at stated periods, and that for coaches and carriages drawn by two horses and occupying a public stand, at $5 each; and that for one-horse vehicles occupying a public stand, and that for all carriages kept and used for hire, or used for hire by keepers of livery stables, is fixed at $2.50 each.
    Messrs. Quigg & Tuthill, for the appellant:
    We concede the power of the city to tax, license and regulate livery stables, among other things. (Incorporation act, sec. 62, clause 91; Chicago Packing Co. v. Chicago, 88 Ill. 221.) The ordinance, however, does not impose a license upon livery .stables, but • upon “carriages, cabs and other vehicles kept or used for hire by any keeper or keepers of livery stables. ” If the ordinance is an exercise of the powers given, it is obnoxious to the objection that it is not uniform, in not affecting all livery stables alike. It applies only to such as keep carriages for hire, and is therefore void. 1 Dillon on Mun. Corp. sec. 256; Tugman v. Chicago, 78 Ill. 407; Chicago v. Rumpff, 45 id. 96.
    The ordinance, in so far as it requires the payment of a license fee as- a tax upon an occupation, is not warranted by the constitution. Const. 1870, sec. 1, art. 9.
    It will not be claimed that the council may, by an ordinance, impose a direct tax upon the carriages of the citizens, or upon their furniture. Commonwealth v. Stodder, 2 Cush. 572; Livingston v. Albany, 41 Ga. 21; State v. C. R. R. Co. 40 Md. 22; State v. Endom, 23 La. Ann. 653; Police Jury v. Mongues, 11 id. 739; Cullinar v. New Orleans, 28 id. 102; Williams v. Garrigues, 30 id. 1094.
    Mr. F. S. Winston, Jr., for the appellee:
    That the city, under its power to “tax, license and regulate * * livery stables,” can require the keepers of livery stables to take out licenses, has been held in Chicago Packing and Provision Co. v. Chicago, 88 Ill. 221; Wiggins v. Chicago, 68 id. 377; Wiggins Ferry Co. v. East St. Louis, 102 id. 560.
    A license fee is not a tax. People v. Thurber, 13 Ill. 554; City of East St. Louis v. Wehrung, 46 id. 392; Illinois Ins. Co. v. Peoria, 29 id. 180; Firemen’s Association v. Lounsbury, 21 id. 510; Walker v. City of Springfield, 94 id. 364; Lovingston v. Board of Trustees, 99 id. 564; Wiggins Ferry Co. v. East St. Louis, 102 id. 560.
    A license fee in proportion to the amount of business done or money received, or to the burden east upon the municipality, has often been sustained. People v. Thurber, 13 Ill. 554; City of East St. Louis v. Wehrung, 46 Ill. 392; Walker
      v. City of Springfield, 94 Ill. 864; Frankfort Ry. Co. v. Philadelphia, 58 Pa. St. 119; Chicago v. Bartee, 100 Ill. 57.
   Mr. Justice Dickey

delivered the opinion of the Court:

We think the exaction of this license fee may well be sustained as a tax upon that class of keepers of livery stables who keep carriages for hire. The constitution of 1818 contained, as a limitation upon the taxing power, the following: “That the mode of levying a tax shall be by 'valuation, so that every person shall pay a tax in proportion to the value of the property he or she has in his or her possession. ” In the constitution of 1848 this restriction was removed, and in its stead it was provided: “The General Assembly shall provide for levying a tax by valuation, etc., but the General Assembly shall have power to tax peddlers, auctioneers, brokers, hawkers, merchants, commission merchants, showmen, jugglers, inn-keepers, groceiy-keepers, toll bridges and ferries, and persons using and exercising franchises and privileges, in such manner as they shall from time to time direct.” In our present constitution the provision of the constitution of 1848 is retained, being modified by additions to the subjects of taxation without valuation, and by requiring such taxation to be imposed “by general law, uniform as to the class upon which it operates.” And to this is added the further provision, that “the specification of the objects and subjects of taxation shall not deprive the General Assembly of the power to require other subjects or objects to be taxed in such manner as may be consistent with the principles of taxation fixed in this constitution. ” It is plain, therefore, that the General Assembly might, under this constitution, impose a tax by general law upon that class of livery stable keepers who keep carriages for hire, although that business is not enumerated as one of the objects or subjects of taxation without valuation.

By general law the General Assembly has authorized cities to impose such tax. In clause 91, of the chapter defining the powers of city councils, is granted the power “to tax, license and regulate * * * livery stables. ” It is said this is a power to tax livery stables, but not a power to impose a tax upon the keepers of livery stables. The context shows that this is not the true meaning. The power is to tax auctioneers, distillers, brewers, lumber yards, livery stables, public scales, money changers and brokers. It is plain to us that this whole section relates to occupations, and means by the terms “lumber yards, ” “livery stables, ” and “public scales, ” keepers or owners of lumber yards, livery stables and public scales. These words being preceded by “distillers” and “brewers,” and followed by “money changers” and “brokers,” carry to our minds no other sense than that of a tax upon occupations. The ordinance imposes this burden for revenue by a general enactment, uniform upon the class upon which it operates. It prohibits' all livery stable keepers from keeping carriages for hire without paying a license fee upon each carriage. Be this as it may, it is exceedingly clear, since the decision of this court in the case of Wiggins Ferry Co. v. City of East St. Louis, 102 Ill. 560, that the imposition of this burden can be fully vindicated under the power to license. The writer of this opinion had thought, until that decision was made, that a license fee, exacted for mere purposes of revenue, for a license to do that which the exacter had no power to forbid, was'a tax, in the sense of our constitution. In that case it was ruled otherwise. The charter in this case granting power to license keepers of livery stables; as has been shown, the council had the full power to prescribe the rule that such license should be paid for in proportion to the number of carriages kept for hire.

The judgment in this case is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    Robert Lawson et al. v. Adelaide M. Funk.

      Filed at Ottawa January 23, 1884.

    1. Fbatjdttlent conveyances—fraudulent intent not essential. There are two distinct grounds upon which conveyances and other contracts will be deemed fraudulent as'against creditors: First, such as are entered into with a fraudulent intent; and second, such as, from the terms of the agreement or the nature of the transaction itself, are deemed so as a mere inference of law, without regard to the motives or actual intentions of the contracting parties.
    2. In the first class of cases the fraudulent intent is always a question of fact, to be established by extrinsic proofs, while in the other the contract or transaction, under, the circumstances shown, may be deemed fraudulent, although the parties may have acted in the best of faith.
    3. In determining whether there is fraud in fact in a contract or transaction, the court will look at the relations of the parties, the terms of the contract, the value and character of the property conveyed, the consideration, and of what it consists, and to the circumstances under which the transfer was made.

      4. Same—of the consideration—contract for support of grantor. If an insolvent debtor conveys property which is liable to be taken for his debts, in consideration of an agreement or covenant on the part of the grantee to maintain or support the grantor, the conveyance will be fraudulent and void as against creditors; and this is so if it appears that any part of the consideration is to be paid in the future support of the grantor.
    5. Same—in the particular case—conveyance to grantor's sons on a claim of a contract for services. The sons of a grantor of land, after becoming'of age, remained with their father, as before, six or eight years, under a secret verbal agreement that they were to be paid more than the usual wages, to be boarded and clothed, and furnished with all the spending money they might need, free, and have their teams and stock fed out of their father’s grain; and it was claimed that none of such wages were ever paid, the contracts having run six and eight years, when the father conveyed them' his farm and all his other property, and such indebtedness was then applied in payment for the property, and it appeared that no one except the parties ever knew of such secret agreement for wages. It was held, that a court of equity would not sanction a preference given by a father to his children, under such circumstances, as against other creditors.

      . Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Ogle county; the Hon. John Y. Eustace, Judge, presiding.
    The hill in this case charges, in substance, that Adelaide M. Funk, appellee, on the 8th of October, 1879, recovered a judgment in the Ogle circuit court against the appellants, Robert Lawson and Samuel H. Shoop, for the sum of $1166.26, and costs, upon which an execution was issued on the 3d of November following, and placed in the hands of the sheriff of said county, who subsequently returned the same nulla bona; that an alias execution was sued out on said judgment, and was then in the hands of the sheriff wholly unsatisfied; that at the time said judgment was obtained the said Robert Lawson was the owner in fee of certain real estate in said Ogle county, particularly described in the bill, amounting altogether to two hundred and forty acres; that prior to the rendition of the judgment, but after the indebtedness upon which the same was rendered had' accrued, to-wit, on the 6th of May, 1879, the said Robert made a pretended conveyance of said real estate to his two sons, George and John, for the pretended consideration of $2330 ; that said conveyance is colorable only, and was made and intended by all the parties thereto to hinder and delay the creditors of the; said Robert, and particularly the complainant ;'that said conveyance was made without consideration, and that the premises in question are now held by the said John and George in trust for the said Robert, their, father; that with the view of further hindering and delaying his creditors, the said Robert, at the same time, eolorably turned over and transferred, without consideration, to the said John and George, a large amount of personal property, of the value of $2000, or more; that the said Robert, outside of the property so fraudulently transferred to his sons, had

      no means wherewith to satisfy or discharge complainant’s said judgment, etc.
    The defendants filed a joint and several answer, admitting the recovery of the judgment by appellee, the issuing of an execution thereon, and its return, “no property found;” the ownership of the lands by Robert Lawson, and his subsequent conveyance by quitclaim deed to his two sons, George and John, for the expressed consideration of $2330; the sale and transfer of the personal property, but denying it was worth $2000 or even $1000. The answer also admits Robert Lawson’s insolvency, but insists his conveyances to his sons were made in good faith, and for a valuable consideration. The answer, in most other respects, consists of a general denial of the equities of the bill.
    The cause was heard at the April term, 1883, of the Ogle circuit court, upon bill,' answer, replication and proofs, resulting in a decree declaring Robert Lawson’s deed of the 6th of May, 1879, null and void as to complainant, and setting the same aside, with a saving as to the rights of certain mortgagees claiming through the grantees in said deed. On appeal to the Appellate Court for the Second District this decree was affirmed, and the appellants bring the ease here for review.
    Mr. 0. C. Lathrop, for the appellants:
    A conveyance is void only as to prior creditors, when made to defraud them, and not as to subsequent creditors. Wooldridge v. Gage, 68 Ill. 167.
    Although the father made the sale expressly to defeat the collection of that claim, unless the sons participated in that act the conveyance can not be attacked for fraud, Mathews v. Jordan, 88 Ill. 602; Miller v. Kirby, 74 id. 242; Hatch v. Jordan, id. 414; Gridley v. Bingham, 51 id. 153; Nelson v. Smith, 28 id. 495; Ewing v. Runkle, 20 id. 448; Hessing v. McCloskey, 37 id. 342; Rev. Stat. 1874, chap. 59, sec. 5.

      The promise on the part of John and George Lawson to pay their father’s indebtedness was a valuable consideration in part for the conveyance, for upon such promise the creditors of the father, whose debts were so provided for, might maintain an action. Eddy v. Roberts, 17 Ill. 508; Ralston v. Wood, 15 id. 171; Dubbs v. Findly, 2 Pa. St. 397.
    The statements of a vendor, made after the sale, are not admissible to show the transaction was fraudulent. Gridley v. Bingham, 51 Ill. 153; Hessing v. McCloskey, 37 id. 347.
    Evidence is admissible to show that the grantee paid the full value of the land transferred, and thus rebut the presumption of a secret trust. Albee v. Webster, 16 N. H. 371.
    In Slater v. Dudley, 18 Pick. 375, the court say that the agreement of the grantee to support the grantor and his wife was prima facie evidence of fraud, but it was open to explanation. If the full value of the land was paid, the agreement to support the grantor would be gratuitous, although suspicious.
    Something more than suspicions are required to prove fraud. The evidence must be clear and cogént, fairness being always presumed. Shinn v. Shinn, 91 Ill. 477; Root v. Cook, 81 id. 266.
    The mere fact of relationship will not characterize a sale from the one to the other as fraudulent. Waterman v. Donalson, 43 Ill. 32.
    Mr. J. W. Allaben, and Mr. William Barge, for the appellee :
    The grantees being sons of the grantor, a suspicion of fraud arises, and the consideration, its payment and adequacy, must be more fully proved than as though they were strangers. Brice v. Meyers, 5 Ohio, 126; Welsh v. Kellogg et al. 11 id. 398; Lake v. Doud, 10 id. 423; Gibson v. Hill, 23 Texas, 77.
    The agreement, as part of the consideration, to support the grantor and his wife during their lives, was a legal fraud, creating a secret trust in favor of the grantor, and rendered the conveyance void as to creditors, even' though there was other valuable consideration. Moore v. Wood, 100 Ill. 451; Sweeney v. Damron, 47 id. 458; Bridgeford v. Riddell, 55 id. 264; Power v. Alston, 93 id. 590; Guffin v. First National Bank, 74 id. 262; Emerson v. Bemis, 69 id. 537; Mills v. Hometh, 19 Texas, 257; Bump on Fraudulent Conveyances, 246, 247.
    A son can recover nothing, after becoming of age, for services as a member of the family, in the absence of a special contract. Any recompense is a gift. Guffin v. First National Bank, 74 Ill. 262.
    Contract for service for a long term, not established by the evidence of the parent and child, unsupported, where the father was in embarrassed circumstances and the salary is exorbitant. Haney v. Nugent, 13 Wis. 315.
    Where a grantor is interested in sustaining the conveyance, his admissions will be competent proof against the conveyance; ‘ and Bobert Lawson’s support depended on the grantee’s holding the property. Hitt v. Ormsbee, 12 Ill. 166; Martin v. Dryden, 1 Gilm. 209; Rector v. Rector, 3 id. 118.
    Fraud in one instance vitiates the entire transaction, even with consideration. Strohm v. Hayes, 70 Ill. 41; Weisiger v. Chisholm, 22 Texas, 670.
    Where fraud is charged, and it appears the price given is much less than the real value, it is a strong circumstance to prove fraud. It is not required to prove value as laid in the bill. Lloyd v. Higbee, 25 Ill. 603.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The evidence in this case has taken a wide range, and is too voluminous to attempt to comment upon it in detail. To do so would extend its discussion to an unwarrantable length, without any corresponding benefit. We shall therefore content ourselves with adverting to some of its more important features, and giving the general' results of our consideration of it.

tte' real issue presented by the pleadings and evidence is, was the conveyance by Robert Lawson of his property to his sons, on the 6th of May, 1879, fraudulent or not. To this vital issue the whole of the testimony taken in the case is either directly or indirectly addressed. As to the general-legal principles applicable to cases of this character, there is but little, if any, room for controversy. The authorities clearly establish two distinct grounds upon which conveyances and other contracts will be deemed fraudulent as against creditors: First, such as are entered into with a fraudulent intent; and second, such as, from the terms of the agreement or the nature of the transaction itself, are deemed so as a mere inference of law, without regard to the motives or actual intentions of the contracting parties. In the first class of cases the fraudulent intent is always a question of fact, to be established by extrinsic proofs. In the latter, the agreement, under the circumstances shown, is deemed fraudulent, although the parties may have acted in the best of faith. Apt illustrations of the latter class of cases are found in the ease of an insolvent person who transfers his property to another, reserving to himself a beneficial interest therein; or where one, being insolvent, disposes of the whole of his estate upon a long credit, thereby putting it beyond the reach of his creditors; or where one, by a contract not in writing, makes a sale of chattels and retains possession thereof. All such contracts and transactions are conclusively presumed, as an inference of law, to be fraudulent, without regard to the real motives or purposes of the parties. Thornton v. Davenport, 1 Scam. 296; Phelps v. Corts, 80 Ill. 109; Greenebaum v. Wheeler, 90 id. 296; Tunison v. Chamblin, 88 id. 378; Pope v. Andrews, 1 Sm. & Mar. 135; Kepner v. Burkhart, 5 Barr, 478; Grannis v. Smith, 3 Humph. 179; Mitchell v. Beal, 8 Yerg. 134.

Appellee insists the present contract or conveyance is fraudulent on both the grounds suggested. To determine whether there was any fraudulent intent, or fraud in fact, in the case in hand, we must look at the relations of the parties, the terms of the contract, the value and character of the property conveyed, the consideration, and of what it consisted, and to the circumstances under which the conveyance was made. The tract of land in question constituted the homestead of Robert Lawson, and was all the real estate owned by him. At the time of the conveyance there was an incumbrance upon it of $2400, which the grantees, as a part of the consideration, assumed to pay. After a careful examination of the whole of the evidence we think $37.50 an acre would be -a fair valuation of the land, which would make $8962.50, and the personal property is shown to be worth about $1000 more, making a total of $9962.50. It is claimed in the answer that in part payment of the property the grantees assumed to pay other debts of their father, amounting altogether to the sum of $5100, while the testimony of John shows the amount to be $5500, though he claims in another part of his testimony that he paid a $300 claim due from his father which was not on the list of claims he and his brother had undertaken to pay. But putting the indebtedness assumed by them at the amount fixed by John,—which is certainly a liberal estimate, so far as the appellants are coneerne.d, as , it is $400 more than is claimed in their answer,—there would be a balance on the property of $4462.50 to be accounted for, which is only in part done, according to appellants’ own showing.

It appears from the record, Robert Lawson: was a farmer, . and his two sons, John and George, were both single, and had always resided with him, and in connection with two younger brothers, Pierce and Fred, had assisted him in carrying on the farm. John, the oldest of the boys, became of age in May, 1871, and George, in March, 1873. It is claimed by them that at the time they respectively became of age they severally entered into contracts with their father to work for him on the farm at $20 a month, and that nothing had ever been paid on either of these contracts from the time they were made up to the date of the conveyance,—being a period of eight years as to John, and six years as to George; and this indebtedness from.the father to the boys, which is claimed to have been cancelled at the time, constituted the remaining consideration paid for the land and personal property in question, being fixed in a receipt given by them at the time, at $3120, which, added to the $5500, makes a total of $8620, being $1342.50 less than our estimated value of the property. There is, however, a clear, discrepancy between their testimony and the receipt with respect to the number of years John worked on the farm under his contract. According to his testimony he worked eight years, whereas the receipt fixes the time at seven. Assuming the transaction to have been bona fide, and his claim for services a just one, it is difficult to conceive how so glaring a mistake could have occurred; but regarding the transaction as colorable, merely, such a mistake might well have happened. It further appears, from the testimony of the boys, that in addition to the $20 a month their father clothed them and furnished them with spending money, and that this was in pursuance of the original contract with them.

There are some peculiar features and singular coincidents in these alleged contracts that challenge observation. John, in speaking of the contract with him, says: “I was to receive $20 a month as long as I would stay there and we could agree. I was also to receive my clothing, and spending money, and my board included. * * * It was only a verbal contract. It was made in the field at home. There was nobody present but him (his father) and I. He was to furnish me all the spending money I would want. ” George, in testifying to his contract with the old man, says: “The contract was, I should stay at home and work, and receive $20 a month as long as we could agree. I was to receive my board and clothing and washing, and also the spending money I needed. * * * I couldn’t just exactly say where we was when the contract was made. We were in the field at home, somewhere. Nobody else was present. ”

It will be thus seen that these contracts, though made full two years apart, are not only essentially alike in almost every particular, but there is a striking similarity in the language used by the witnesses in setting forth the provisions in their respective contracts, and this similarity extends even to most of the incidents connected with the two transactions. Thus, each contract was a mere verbal one,—neither was made in the presence or hearing of any one but the contracting parties themselves, and both were made out in the field on the farm. Though eight years in one ease, and six in the other, had elapsed when the alleged adjustment took place, not a cent had ever been paid under either of the contracts, and it is a significant fact the record fails to show that during this entire period any one outside of the immediate parties knew there were any such contracts in existence. It is also clearly shown, from the evidence, the labor of these two young men was not required the year round to carry on the farm, and moreover, taking it the year round, and from .year to year, during the period in question, the amount they claim they were to receive by the month was at least one-fourth more than was usually paid in that locality for the same kind of labor. : ■

There is another matter worthy of note in this connection. The two youngest sons, Fred and Pierce, during much of this time were also living at home with their father and working on the farm, and so far as the record shows were receiving nothing for their services, and yet the father, in the bestowal of gifts or making advancements to his sons, seems to have treated them all substantially alike. If any difference, the two oldest were mostly favored. He gave to each of his four sons a team, which were fed and kept at his expense while they remained on the farm, and at the time of this alleged sale some thirty or thirty-five head of hogs were then on the farm, belonging to John and George, which were kept and fed at the father’s expense. Under these circumstances it is not surprising that Robert Lawson found himself largely involved, as the evidence shows he was. If a father, on his sons arriving at age, may furnish them with a home, board and clothe them, provide them with all the spending money they want, give them teams of horses or mules, to be kept and fed at his expense, permit them to keep stock of their own, to be raised and maintained in like manner, to relieve them even of the burden of taxation, as was done in this case, and yet at the same time have a contract with them, of which no one knows anything but themselves, by which he binds himself to pay them exorbitant prices for their services, and suffers the same to run on indefinitely for six or eight years without any payment or adjustment of their claims, as was the ease here, it could hardly be expected, in most of cases, after paying their demands as preferred claims, there would be much, if anything, left for outside creditors, who dealt with him in ignorance of the true condition of the debtor’s affairs. We do not think equity sanctions a preference given by a father to his children under such circumstances.

There is another feature of this case worthy of notice. At the time of the conveyance of this property by Lawson to his sons, a list of the names of his creditors was made out, but the amount of the claims was not known by the sons, or even the father himself, hence it was impossible for the seller to know what he was getting for the property, or for the purchasers to know what they were paying. Upon the hypothesis the sale was merely colorable, and intended to prevent the forced collection of appellee’s judgment, them conduct in this respect was natural enough; but assuming it to have been a bona fide transaction, their conduct can hardly be accounted for on business principles.

Outside of the considerations already suggested, it is very clear the testimony of George and John, (particularly that of the latter,) which is relied upon solely to establish the alleged contracts of hiring between them and their father, is -not calculated to inspire a very high degree of confidence. In it will be found a number of contradictions and inconsistencies, which we can not stop to point out, that greatly diminish its probative force,—so much so, that we think the court below was warranted in rejecting it altogether, as it probably did.

But waiving altogether the question of fraudulent intent or fraud in fact, the question recurs, was the transaction fraudulent in law, without regard to the actual motives or purposes of the parties. At the time of the making of the deed, the said John and George executed to their father a contemporaneous agreement, as we have already seen, by which they undertook to pay certain debts of the latter. This agreement and the quitclaim deed are, of course, but parts of the same transaction, and must be construed as if they were both embodied in one instrument. The agreement in question contains a full recital of the consideration of the land and personal property, and is in these words :

“In consideration that our father, Robert Lawson, sells to us the farm of about two hundred and thirty-nine acres, upon which he now lives, and gives us a bill of sale of all his personal property on saicVann, we hereby agree to release him from all claims for wages which he now owes us, and also agree to keep him and mother during their lives, and to pay all the following debts and claims against him or the farm,” etc.

The law, as we have already seen, is well settled that where an insolvent person conveys property subject to the payment of his debts, in consideration of an agreement or covenant bn tbe part of the grantee to maintain or support the grantor, such conveyance will be fraudulent and void as against the latter’s creditors. (Moore v. Wood et al. 100 Ill. 451.) That ease, in many of its leading features, is on all fours with the present case, and is therefore conclusive of it. It was there said: “A debtor can not convey real estate to another, to be held wholly or in part in secret trust for himself.” And in Lukin v. Aird, 6 Wall. 78, the United States Supreme Court recognizes the same doctrine in the following language: “A trust thus secretly created, whether so intended or not, is a fraud on creditors, because it places beyond their reach a valuable right, * * and gives to the debtor & beneficial enjoyment of what rightfully belongs to his creditors.” The general doctrine thus laid down is fully recognized in numerous decisions of this court: Guffin v. First National Bank of Morrison, 74 Ill. 259; Power v. Alston, 93 id. 587; Annis v. Bonar, 86 id. 128; Jones v. King, id. 225; Emerson v. Bemis, 69 id. 537.

Under the authority of these cases it is clearly sufficient to defeat a conveyance as to creditors, if it appears any part of the consideration is to be paid in future support of the grantor. The law, under such circumstances, does not stop to inquire what part of the consideration was in money or property and what in future support, with the view of adjusting the respective equities of the creditors and purchaser, but treats the conveyance as void in toto. Moore v. Wood et al. supra, and authorities there cited.

As the agreement of John and George to keep their father and mother during their lives is expressly declared by the parties themselves to be a part of the consideration for the conveyance of the property, there is no ground whatever for questioning that fact, and it therefore follows, under the authorities cited, the conveyance in question was void as against appellee.

We are clearly of opinion, in any view we take of the case, the decree of the court below was right, and that the Appellate Court therefore properly affirmed it.

Decree affirmed.


author: Mr. Justice Scott

text:
    The United States Insurance Company v. Otto Ludwig.

      Filed at Ottawa January 23, 1884.

    1. Limitation—as against new plaintiff, by amendment. On a life policy of insurance, containing a clause that no action should be brought thereon after eighteen months after the death of the insured, an action was improperly brought in the name of an assignee, within the time limited, instead of in the name of the administrator of the deceased, and judgment of recovery had, which was reversed for want of a proper party plaintiff. Thereupon, by leave of court, an amendment was made substituting the administrator of the party whose life was insured, in place of his assignee, and a new count was filed upon precisely the same cause of action; but this was after the expiration of the period of limitation: Held, that the amendment related back to the commencement of the suit, and that the limitation could not be invoked to defeat the action.
    2. Amendment—change of party plaintiff. Where an action at law is brought in the name of the beneficial plaintiff, so that no recovery can be had, an amendment substituting the proper person as plaintiff is allowable under the statute.
    3. ' Action—commencement of suit. Substituting the party having the legal right to sue, instead of one improperly named as plaintiff, is in no sense the commencing of a new suit, -but so far as the defendant is concerned the suit will be regarded as commenced at the time of the original issuing and service of the summons. The rule is different where a new defendant is brought into the case by amendment and summons against him.
    Appeal from the Appellate Court for the First District; —heard in that court on appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.

      Mr. F. H. Kales, for the appellant:
    The recovery in this case was had upon the same policies involved in United States Ins. Co. v. Ludwig, 103 Ill. 305.
    The present suit was not commenced within the time required by the policy contract. Johnson v. Humboldt Ins. Co. 91 Ill. 92; Dunphy v. Riddle, 86 id. 22; Crowl v. Nagle, id. 437.
    The time when the administrator was made a party must be deemed the commencement of this suit. (McGraw v. Bayard, 96 Ill. 146.) Until then there was nobody before the court entitled to recover a judgment on the policies. Lusk v. Thatcher, 102 Ill. 60; Davis v. Mayor, 14 N. Y. 506.
    The statute declaring that the order granting an amendment to bring in new parties shall be conclusive of the identity of the action, has the effect to make the time of the entry of that order the time of the commencement of the suit as to such new party.
    The court below erred in permitting the substitution of the administrator in lieu of the original plaintiff. Rev. Stat. 1874, chap. 110, sec. 23; Lusk v. Thatcher, 102 Ill. 60.
    Messrs. Hutchinson & Luff, for the appellee:
    The suit was commenced by the issuing of the summons. Chicago and Northwestern Ry. Co. v. Jenkins, 103 Ill. 588; Johnson v. Farwell, 7 Greenlf. 370; Hail v. Spencer, 1 R. I. 17; Kinney v. Lea, 10 Texas, 155.
    The administrator was properly made plaintiff by amendment, and the order of the court is conclusive evidence of the identity of the action. Teutonia Life Ins. Co. v. Mueller, 77 Ill. 22; McDowell v. Towne, 90 id. 359; Fame Ins. Co. v. Thomas, 10 Bradw. 545; Blood v. Harrington, 8 Pick. 552; George v. Reed, 101 Mass. 378; Winch v. Hosmer, 122 id. 438; Hutchinson v. Tucker, 124 id. 240; Davenport v. Holland, 2 Cush. 1.

      The legislature of this State, in adopting the statute of Massachusetts relating to" amendments, adopted the construction of that statute hy the courts of that State, as shown in the cases cited. Martin v. Judd, 81 Ill. 488; Hopkins v. Medley, 97 id. 402.
    Compare section 24, chapter 110, of the Revised Statutes of 1874, with the Massachusetts statutes of 1860, p. 658, sec. 41, and p. 662, sec. 82.
   Mr. Justice Scott

delivered the opinion of the Court:

This action was originally brought by Clara Ludwig in her own right, and as guardian of two minor assignees of the policies on which the action was commenced, against the United States Life Insurance Company. The judgment rendered in the trial court in favor of the original plaintiff-, was afterwards reversed in this court because the suit was improperly brought in the names of the assignees of the policies. (United States Life Ins. Co. v. Ludwig, 103 Ill. 305.) After the reversal of that judgment Otto Ludwig was appointed administrator of the estate of Otto C. Ludwig, deceased,—the assured named in the several policies, and to whose administrators or executors the losses wrere made payable. After the remandment of the cause to the trial court, on leave given by the court for that purpose, Otto Ludwig, the administrator, was substituted for the former plaintiff. An additional count was then filed by way of an amendment to the declaration, on precisely the same cause of action as in the original declaration, making the usual profert of letters of administration. To the declaration as amended defendant filed the general issue, and also some special pleas, to which a demurrer was sustained. On the trial in the Superior Court plaintiff recovered a judgment for the full amount of the policies on which the action was brought. That judgment was affirmed in the Appellate Court for the First District, and defendant brings tbe case to this court on its further appeal.

No defence is insisted on as to the merits of the action. It' is claimed the action is barred as against the present plaintiff by the limitation clause contained in the policies declared on, which are to the effect no suit against the company under the insurance contract shall be brought, or action commenced, “after eighteen months after” the death of the assured. It appears from the evidence the assured died July 31, 1880; that the proofs of loss were furnished the company on the 26th of August, 1880, and that the order of the court allowing the amendment, by which the administrator of the assured was substituted as plaintiff instead of the assignees of the policies, was not made until the 20th day of September, 1882. A period of more than two years from the date of the death of the assured had then elapsed, and that, it is said, in the language of the policies, will be “conclusive evidence” against the claims.

The original suit brought by the assignees of the policies was commenced January 5, 1881. That was within the time prescribed in the limitation clause of the policies in which the action might be brought. It will be seen the error in the . argument submitted on behalf of defendant lies in the assumption the amendment making the administrator plaintiff, instead of the assignees of the policies, was in effect commencing a new action, so far as the present plaintiff is concerned, and as that was not done within-eighteen months next after the death of the assured, it is said the action is barred. That the amendment substituting the administrator of the assured as plaintiff was authorized by section 1, chapter 7, of the Revised Statutes of 1871, which permits amendments in any process or proceeding in any civil action, either in form or in substance, for the furtherance of justice, is settled by the decision of this court in Teutonia Life Ins. Co. v. Mueller, 77 Ill. 22, and in other more recent cases. The reasoning in that case is conclusive of the one at bar, and the propriety of the amendment need not be further discussed. As was there said, under the liberal provisions of this statute any amendment in civil actions, either in form or in substance, is permissible, that tends to the furtherance of justice. The amendment allowed in the case being considered, as well as the amendment in the case cited, was simply to substitute the real party having the right to sue, as plaintiff. Clearly that was within the discretion of the court, to enable the parties “to sustain the action for the claim for which it was intended to be brought. ” Substituting the party having the legal right to sue for the claim for which the action was brought, instead of another party improperly named as plaintiff, is in no sense commencing a new action against defendant. So far as the defendant is concerned, this suit or action was commenced against it at the time of the issuing and the service of the summons, which was within eighteen months after the death of the assured. (Chicago and Northwestern Ry. Co. v. Jenkins, 103 Ill. 588.) The assignees in whose names the action was originally commenced, are the parties beneficially interested in this judgment, and the amendment substituting the administrator, in whom was the legal right to sue, as plaintiff, was simply to enable them “to sustain the action for the claim for which it was intended to be brought, ” and nothing more.

The additional count, filed after the administrator was substituted as plaintiff, was upon no new cause of action. It was precisely the same cause of action defendant was required to answer by the original summons. Defendant was in court, and it was a matter that could' make no possible difference, so far as it was concerned, whether the judgment was rendered in favor of the parties beneficially interested in the cause of action, or in favor of the party having the legal right to sue, as was done, since the amendment was permitted. It was the same suit and the same claim for which the action was intended to be brought, and the action must be regarded as having been commenced when the original summons was issued, which was in time to save the bar of the limitation clause of the policies as to the time of the commencing the suit or action.

The case of Lusk v. Thatcher, 102 Ill. 60, has no application to the case being considered. Should a new party be made defendant, under the .Practice act he would necessarily have to be brought in by summons, and that would be the commencement of a new suit, so far as he is concerned. But here the party defendant was in court when the amendment to the declaration was made, by virtue of the original summons. No new service was necessary to bring defendant into court, nor was it required by the amendment to answer to any new cause of action.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Cbaig

text:
    John Kinney v. The People of the State of Illinois.

      Filed at Ottawa January 23, 1884.

    1. Cbiminal LAW—when party may act by talcing life in self-defence. To justify a defendant in shooting and killing another, it is not enough that he be under reasonable apprehension of danger, but he must at the time have not only a reasonable, but a well grounded, belief, from the surrounding circumstances, that he is actually in danger of losing his life or receiving great bodily harm.
    2. Same—limitation on right to take lifevin self-defence. Although a defendant, before taking the life of his adversary, may be assaulted in such manner as to induce in his mind a reasonable and well grounded belief that he is in danger of losing his life or receiving great bodily harm, yet if he has sought for and attempted to provoke a personal difficulty with the deceased, and becomes the first assailant, or, being the first assailant, does not really and in good faith endeavor to avoid any further struggle before taking life, or if he has sought and attempted to provoke a personal difficulty with the deceased with the intent to kill him if he should make the first assault, he can not be justified in the killing upon the ground of self-defence.
    3. If a defendant, without previous malice against the deceased, and with nq intent to take his life, seeks for and provokes a personal difficulty with the deceased, which results in an assault upon him by the deceased with a deadly weapon, contrary to the expectation of the defendant, who in return shoots the deceased, from which act death ensues, the homicide, in such case, can not be justified upon the ground of self-defence, and will amount to manslaughter.
    4. Instbuction—in language of statute, as to self-defence. On the trial of one for murder, where the defence was that the defendant acted in self-defence, the court, on behalf of the People, gave an instruction which was a verbatim copy of sections 148 and 149 of the Criminal Code: Held, that the court did not err in giving the same. It seems that an instruction in the language of section 149, standing alone, might be liable to mislead, and erroneous, as debarring the party threatened with danger of the right to determine, from the actual state of things surrounding him, as to the necessity of resorting to self-defence, but when that section is coupled with section 148, the doctrine of self-defence may be considered as sufficiently given.
    5. Same—assuming fact, properly refused. An instruction which assumes the existence of a material fact in the case, is calculated to mislead, and is properly refused. ,
    6. Same—directing attention in one to another. In a criminal case, the court, in giving an instruction for the defendant, added thereto, “given to be considered in connection with instruction 13, ” which was also one of defendant’s instructions, and one to which the court had added a lengthy modification: Held, that as it was the duty of the jury to consider all the instructions together, there was no error in the addition of such words.
    7. New tbial—newly discovered evidence. A new trial will not be granted on the ground of newly discovered evidenoe, when it is merely cumulative.
    Writ of Error to the Criminal Court of Cook county; the Hon. Murray E. Tuley, Judge, presiding.
    Messrs. Eorrest & May, for the plaintiff in error:
    It has been expressly decided by this court that an instruction in the words of section 149, on the question of self-defence, is erroneous. Roach v. People, 77 Ill. 30; Schnier v. People,
      23 id. 17. See, also, Maher v. People, 24 Ill. 241; Steinmeyer et al. v. People, 95 id. 383.
    Defendant was entitled to an acquittal if he had reasonable apprehensions of losing his life or receiving great bodily harm when he fired the shot. 'It was not necessary that his danger was actual. Campbell v. People, 16 Ill. 17.
    It is not enough that some other instruction states the law correctly, as it is impossible to say on which the jury acted. People v. Anderson, 44 Cal. 69; Bradley v. State, 31 Ind. 492; Steinmeyer et al. v. People, 95 Ill. 383.
    Mere words, however insulting and opprobrious, do not amount to an assault, or justify one. 1 Hawkins’ Pleas of the Crown, chap. 15, sec. 1; Commonwealth v. Selfridge, Herrigan & Thompson’s Cases of Self-defence, 25.
    The court erred in modifying defendant’s thirteenth instruction. The modification was long and involved, containing at least four distinct hypotheses, which are erroneous. The second hypothesis begins”: “or that the defendant, being the first assailant.” This is bad, as assuming a fact. Roach v. People, 77 Ill. 29. On this branch, as to abridging the right of self-defence, see Herrigan & Thompson’s Cases of Self-defence, 226, 227; Smith v. State, 8 Lea, 402; Daniel v. State, 10 id. 262.
    Mr. Luther Laplin Mills, State’s Attorney, and Mr. Henry Wendell Thompson, Assistant State’s Attorney, for the People:
    Newly discovered evidence, merely cumulative, is no ground for a new trial. Adams v. People, 47 Ill. 376; Sahlinger v. People, 102 id. 241.
    The instruction given in the language of the statute is not open to the objection taken in Roach v. People, 77 Ill. 30. In that case the instruction embodied only a part of the law of self-defence, to-wit, section 149, and not, as in this case, the whole of that law. In addition the court gave defendant’s thirteenth instruction, which, taken in connection with the People’s, left no possibility for the jury to be misled. Steinmeyer v. People, 95 Ill. 390, does not apply.
    There was no error in the modification of instruction No. 13. It does not assume any fact, and was not calculated to mislead. The third and fourth clauses of the modification are supported by Adams v. People, 47 Ill. 378.
    A party can not avail himself of the right of self-defence if the necessity for its exercise is brought on by his deliberate and lawless acts for the purpose of taking life. Adams v. People, 47 Ill. 378; 1 Wharton on Crim. Law, (8th ed.) secs. 476, 485; State v. Neeley, 20 Iowa, 116; Foster on Crim. Law, 132; 1 East’s Pleas of the Crown, 239, sec. 23; 1 Russell on Crimes, 718, 719.
   Mr. Justice Cbaig

delivered the opinion of the Court :■

This was an indictment against John Kinney for the murder of Peter Vigo, in a saloon in'Chicago, on Sunday night, November 26, 1882. On a trial of the cause the jury found the defendant guilty of manslaughter, and fixed his term of imprisonment in the penitentiary at ten years. The court overruled a motion, for a new trial, and rendered judgment on the verdict, and the defendant sued out this writ of error, and assigns various errors, the first of which is, that the verdict is not sustained by the evidence.

It is claimed by counsel for the defendant that the shooting was done in self-defence. We have examined the evidence contained in the record with much care, and in our-judgment it entirely fails to establish the fact that the defendant, in the shooting, acted in self-defence; on the other hand, the evidence plainly shows that the shooting was a reckless and unjustifiable act.

It appears from the evidence that the shooting was done in SjuegeTs saloon, between eleven and twelve o’clock at night. Spiegel, Horton and Dinsmore were present. Horton was not called as a witness, but Spiegel and Dinsmore, who saw and heard what occurred, both testified in the case, and they do not disagree as to the main facts. From the testimony of these two witnesses it appears that the defendant, who was somewhat intoxicated, commenced cursing and abusing the “Dutch,” and asked the bar-keeper (Vigo) if he was a “Dutchman.” The bar-keeper replied that he was no “Dutchman, ” but a good many of his friends were Germans. Defendant replied, “I don’t give a damn for you or your friends.” At the same time he called for two glasses of beer. The bar-keeper said, “No, you have got all you want.” Spiegel, the owner of the saloon, then went up to the bar near where the defendant was standing, (Vigo, the bar-keeper, being behind the bar,) and offered to get the defendant a glass of beer, but he- refused to take it of Spiegel, but demanded that Vigo should give him the beer. At the same time he drew his revolver. The witnesses then say: “Vigo grabbed it, but he was not strong enough to hang on to it, and Kinney pulled it away from him.” Then “he squared himself up again, and snapped or fired, or both, at Vigo,” who also had drawn a revolver. The defendant fired a second shot, and then left the saloon. Whether it was the first or second shot which killed the deceased does not appear, nor is it material.

Prom the testimony of these two witnesses it is apparent that the defendant commenced the quarrel, and without pro-vocation, and when in no danger whatever, drew his revolver and attempted to shoot Vigo, and accomplished that purpose, and fled from the saloon. It is true the defendant testified that Vigo drew his revolver first and snapped it at him, but this evidence is not enough to overcome the testimony of two disinterested witnesses, who appear to be entirely credible and reliable.

Nor is the testimony of the witnesses for the People overcome by the evidence of the witness Logan, who undertook to corroborate the defendant. This witness, according to his evidence, came to the saloon with the defendant, but immediately left, and was gone some time, and returned just in time to witness the difficulty. ■ But no other witness saw him, and it seems strange that he was unobserved by any one if he was present. Indeed, it seems probable, when all the evidence is considered, that he was not present when the difficulty occurred. This seems more probable from the fact that the defendant himself does not testify that Logan was there when the difficulty occurred, as he probably would if such was the case.

We now come to the instructions of the court, and, first, it is claimed that instruction No. 2, given for the People, is erroneous. This instruction is a copy verbatim of sections 14S and 149 of the Criminal Code, and we are not aware that it has ever been held that an instruction in the language of the statute, embracing the two sections, was erroneous. In Roach v. The People, 77 Ill. 30, it was held that where the defendant seeks to justify the killing as in self-defence, an instruction conveying the idea that the justification can not be sustained unless the danger Avas not only apparently imminent but Avas actual and positive, is erroneous. In that case the rule which had been established in Campbell v. The People, 16 Ill. 17, and subsequent cases, was followed, in which it was held that where a party is assaulted in such a way as to induce in him a reasonable and well grounded belief that he is actually in danger of losing his life, or suffering great bodily harm, he will, when acting under such apprehension, be justified in defending himself, Avliether the danger is real or only apparent. Noav, Avhile an instruction in the language of section 149 of the Criminal Code, standing alone, might be liable to mislead, and erroneous, as in the Roach case, for the reason that it debarred a party threatened with danger of the right to determine, from the actual state of things surrounding him, as to the necessity of resorting to self-clefence, yet when the same instruction is so qualified as to inform the jury, as did the one in question, in the language of section 148, that he would be justified in defending himself when the circumstances were sufficient to excite the fears of a reasonable person,- and that he really acted under the influence of those fears, and not in a spirit of revenge, we perceive no ground for holding that the law of self-defence was not properly given to the jury. Indeed, the language of section 148 may be regarded as broad enough to authorize the rule established in the Campbell case, and subsequent cases on the same subject.

It is also claimed that the court erred in refusing instructions Nos. 12 and 16. As to instruction No. 12, it announces as a fact that the deceased drew his revolver and snapped it at the defendant. This of itself would be a sufficient ground to authorize the court to reject the instruction. The existence of facts should not be assumed in instructions, as such instructions are liable to mislead. Facts are always to be established from the evidence, and an instruction which assumes the existence of a fact, not being based on evidence, is erroneous. Instruction No. 16 in substance announced to the jury that if they found certain things from the evidence, and that thereupon the defendant, being under reasonable apprehension of suffering great bodily-harm, etc., drew his revolver and shot the deceased, he was acting in self-defence. The instruction is liable to at least one serious objection. It was not enough that the defendant was under reasonable apprehension of danger, but all the cases hold that he must have had not only a reasonable but a well grounded belief, from the surrounding circumstances, that he was actually in danger of losing his life or suffering great bodily harm.

The defendant requested the court to give the following instruction—No. 13:

“The court instructs the jury, that if they believe, from the evidence, that the defendant was assaulted by the deceased in such a way as to induce in the mind of the defendant a reasonable and well grounded belief that he was actually in danger of losing his life or of suffering great bodily harm, then he was justified in shooting the deceased, whether the danger was real or only apparent. Actual or positive danger is not indispensable to justify self-defence. The law considers that men, when threatened with danger, are obliged to judge from appearances, and determine therefrom as to the actual state of things surrounding them; and in such eases, if persons act.from honest conviction, induced by reasonable evidence, they will not be held responsible criminally for a mistake as to the extent of the actual danger. ”

The court refused to give the instruction as asked, but 'added the following modification:

“In connection with this instruction the jury are further instructed, that if they find, from all the evidence, that the defendant sought for and attempted to provoke a personal difficulty with the deceased, Vigo, and that he, and not Vigo, was the first assailant; or that the defendant being the first 'assailant, he had not really and in good faith endeavored to decline any further struggle before the mortal shot was fired; or if they believe, from the evidence, that the defendant sought for and attempted to provoke a personal difficulty with the deceased, with the intent to kill him if he did make the first assault, then in neither of such cases would the defendant be justified in killing the deceased upon the theory of self-defence because of such assault by the deceased, Vigo, before the fatal shot was fired; and if the defendant, without any previous malice against the deceased, and with no intent to take his life, did seek for and provoke a personal difficulty with the deceased which resulted in such assault being made by the deceased, that the defendant, at the time he so sought for and attempted to provoke such personal difficulty, did not expect such conduct of his to result in such assault hy the deceased, but that it did result in such assault being made, and in defendant thereupon with his revolver firing the fatal shot, as stated in this instruction, then such act of defendant in so killing Vigo can not be justified upon the ground of self-defence, and that while such -would not be murder, it would amount to manslaughter. ”

We perceive no error in the modification. Under the evidence in this case we are of opinion that the modification was clearly within the rule announced in Adams v. The People, 47 Ill. 378.

To instructions Nos. 14 and 15, of defendant, the court added the following: “Given to be considered in connection with instruction 13.” This modification is claimed to be erroneous. It was the duty of the jury to consider all the instructions together, and the mere fact that they were directed by the court to consider the two instructions mentioned in connection with one other in the series, could not mislead.

One other question remains to be considered. On the motion for a new trial one of the points relied upon was newly discovered evidence, and in support of the motion the affidavit of the defendant and one William T. Kinney, the witness by whom the newly discovered evidence could be proved, was read. A new trial will not be granted on the ground of newly discovered evidence where such evidence is merely cumulative. William T. Kinney was a colored man, and assisted Cook in taking care of the deceased before he died. It was proposed to prove by him certain declarations made by the deceased a short time before he died, in regard to the shooting; but upon an examination of the affidavit it will be found that these declarations were in substance the same as those testified to 0by Cook, and hence the testimony falls within the rule of cumulative evidence.

The judgment of the Criminal Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Scholeield

text:
    Thomas J. Sutherland v. William D. Goodnow et al.

      Filed at Ottawa January 23, 1884.

    1. Assignment—of lease, carries with it right to renewal. An assignment of a lease by the tenant carries with it a clause giving the tenant the option to renew the lease at the end of the term, as well as all other clauses therein.
    2. Landlord and tenant—option to renew lease is no present demise. A clause in a lease for one year giving the lessee the option, on a certain- condition, to renew the lease for another year, is not a demise to take effect at the expiration of the first year,—it is a mere covenant or undertaking of the lessor to let the lessee have a second term, which may be enforced on bill for specific performance, or upon which an action at law may lie for a breach.
    3. Same—tenant can not sub-let longer than his present term. A tenant in possession under a written lease for one year, with the option of renewing the same for a second year if the lessor does not sell the premises before the end of the term, not having any demise except for one year, can not sub-let the premises for any longer term than his own,—that is, to the end of the first year.

      4. Plaintiff procured a written lease to himself of certain premises for the term of one year, which lease contained a clause that he should have the option to take the premises for another year at the same rent, provided the lessor should not sell the premises before the end of the first year. A few months afterward the plaintiff sub-let the property to the defendants, and before the expiration of the term he notified them that if they held over he would charge them an enhanced sum as rent. Before the end of the term the lessor sold the premises by contract, and put the purchaser in possession, and the defendants at the end of the term attorned to the purchaser, and took a lease from him. At the end of the second year the plaintiff sued the defendants for the rent of the premises: Held, that he was not entitled to recover; that at the end of the first term the sub-lessees ceased to be tenants of the plaintiff, and had the light to lease the property from the owner.
    5. A tenant for a year, with the option of a renewal in case the lessor does not sell within the year, who has sub-let the premises, can not charge his tenants with an increased rent by notice to them, before renewal of his lease, that if they hold over he will require them to pay the same, for the reason he is not possessed of such subsequent term, especially when he never does acquire the same by renewal.

      6. Same—construed, as to renewal on condition of no sale by lessor. A lease of premises for one year, ending April 30, 1881, had a clause giving the lessee the option to take the premises for another year at the same price or rent, “provided said first party (lessor) does not sell said premises before the end of the month of April, A. D. 1881.” The lessor made a sale within the limited time, but did not execute the deed before the last day of April: Held, that the word “sell” was to be taken in its general as well as its popular sense, and included a contract for a sale. It not being qualified, would embrace both absolute and conditional sales.
    7. Vendor and purchaser—■when one is trustee for the other. A court of equity will treat the title to land as being where the parties have contracted it shall be, and for that purpose will hold the vendor as trustee of the legal title for the benefit of the vendee, while the latter will be looked upon as trustee of the purchase money for the benefit of the vendor.
    8. Sale—of land—conveyance is not the sale. At law a deed for land is not the sale of the land. It is but the final step in the consummation of a sale, and evidence of it.
    9. Conveyance—relates bach to date of sale. Where the time of the sale of land becomes material to protect the rights of parties, the conveyance, when executed in consummation of the sale, will have relation back, vest title, and be evidence of an executed sale as of the date of the contract, pursuant to which it was executed.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Rollin S. Williamson Judge, presiding.
    Messrs. E. & A. Van Burén, and Mr. Franklin P. Simons, for the appellant:
    The covenant in appellant’s lease was not to renew, but to extend the term of that lease. In such case-the execution of a new lease was not necessary. A holding over, or notice of his intention to take for another year, was sufficient. Taylor on Landlord and Tenant, (7th ed.) 278, 279; House v. Burr, 24 Barb. 525 ; Brown v. Parsons, 22 Mich. 24.
    -A sale of real estate means a transfer of title, and can only be made by a deed duly executed and delivered to the purchaser. Anything else is not a sale, and especially anything that has been proved in this case. 2 Blackstone’s Com. 447; Bouvier’s Law Die. title “Sales;’’ Williams on Real Prop. 127; Wiggins v. Lusk, 12 Ill. 135; Johnson v. Bantock, 38 id. 114; Blake v. Fash, 44 id. 302; Skinner et al. v. Baker et al. 79 id. 496; Houfes v. Schultze, 2 Bradw. 196; Dickerson v. Merriman, 100 id. 346; Byars et al. v. Spencer et al. 101 id. 429.
    The lease, as a whole, or taken in sections, was not ambiguous, and the court was vested with no right to construe the lease in his own way, and make a new contract for appellant. Coey v. Lehman, 79 Ill. 176; Walker v. Tucker, 70 id. 527; Canterbury v. Miller, 76 id. 355; Fitzgerald v. Staples, 88 id. 236; Corbett v. Underwood, 83 id. 327; Merchants’ Ins. Co. v. Morrison, 62 id. 242; Stettauer v. Hamlin, 97 id. 312.
    The court erred in instructing the jury that an executory contract to sell was a sale. Rev. Stat. chap. 30, sec. 1; 2 Blackstone’s Com. 447.
    The making and delivery of the deed can not relate back to the date of the contract to sell, so as to affect injuriously the interests of appellant, a third party, having acquired his rights by contract long previously made. Edwardsville R. R. Co. v. Sawyer, 92 Ill. 377.
    Messrs. Warren & Powers, for the appellees:
    Appellant sold his entire interest in the business and lease, and it containing no prohibitory clause, wras assignable. Taylor on Landlord and Tenant, (6th ed.) sec. 426, note 1; 1 Washburn on Real Prop. (14th ed.) 408.
    A lease is for only one year where it rests in covenant for the lessor to grant a new lease at the end of the term. Browne on Statute of Frauds, sec. 35.
    The appellant could derive no advantage under the clause in the lease giving an option for another year, by reason of the fact that the option was a covenant running with the land, and passed to appellees as assignees of the lease. Taylor on Landlord and Tenant, secs. 262, 332, 437, 445; 1 Washburn on Beal Prop. 504; 2 id. 285.

      Where there are several acts concurrent to make a conveyance or estate, such conveyance or estate, when made or created, shall have relation to, and take effect from, the date of the original act or agreement. Schneider v. Botsch, 90 Ill. 577; 3 Washburn on Real Prop. (14th ed.) 308, and cases cited; id. 309, 310, and cases cited; Rogers v. Brent, 5 Gilm. 573; Welch v. Dutton, 79 Ill. 465; Kruse v. Wilson, id. 233; Jayne v. Gregg, 42 id. 413; Viner’s Abridg. title “Relation; ” 4 Kent’s Com. *451, citing Clary v. Marshall, 5 B. Mon. 266; 5 Cruise on Real Prop. 510, 511.
    When a purchaser is let into possession under a contract to convey, as long as he fulfills his part of the contract he is entitled to the free use and enjoyment, and the rents, issues and profits, of the land. Aud those who derive a privilege from such purchaser are equally protected. Baldwin v. Pool, 74 Ill. 97; Smith v. Price, 42 id. 399.
    Where there is a valid contract for the sale of land, the purchaser is treated as the owner of the land, and may devise it, even before the conveyance is made to him, and it passes by descent as land to his heir. Story’s Eq. Jur. (11th ed.) sec. 790; Taylor on Landlord and Tenant, (7th ed.) secs. 25, 636.
    The relation of landlord and tenant does not apply to vendor and vendee in possession, when possession is taken by agreement. Sedgwick & Waite on Trial of Title to Land, sec. 316; Taylor on Landlord and Tenant, (7th ed.) secs. 25, 636; Bouvier’s Law Die. (14th ed.) title “Landlord and Tenant,” 4, and eases cited; 1 Washburn on Real Prop. (14th ed.) 469.
   Mr. Justice Scholeield

delivered the opinion of the Court:

This was an action of assumpsit, for use and occupation, by appellant, against appellees. The judgment of the Superior Court was for the defendants, the appellees, and that judgment was, on appeal to the Appellate Court for the First District, affirmed.

The facts material to a comprehension of the rulings now questioned in argument, are: On the 29th day of March, 1S80, Granville S. Ingraham and the appellant jointly executed their deed, whereby the former leased to the latter certain premises located in the city of Chicago, from the 1st day of May, 1880, until the end of the 30th day of April, 1881, in consideration of the covenants -therein of the latter. The deed contained this clause: “And it is also provided, as a part of this agreement, that the said Sutherland shall have the option to take the said premises for another year at the same price or rent, provided said first party does not sell said premises before the end of the month of April, A. D. 1881.” Some time in the month of September following, appellant either sold and assigned the lease, or sub-let the premises for the remainder of the term, to appellees,—but which it was, the witnesses testifying to the point do not agree. The evidence tended to show that in March or April, 1881, an agreement was made, and a memorandum thereof reduced to writing, and signed by Granville S. Ingraham, whereby he assumed to sell to Hiram Sibley these premises, for a consideration agreed upon, and undertook to convey the same by deed, “provided the abstract showed a good title;” - that he immediately placed Sibley in the actual possession of the premises, and that he executed and delivered to him the requisite deed therefor on the 20th of May, 1881; that appellees remained in possession of the premises after April 30, 1881, under a contract of renting theretofore made with Sibley; that appellant was never in the actual possession of the premises after the appellees entered into possession under the assignment or sub-letting, and that appellant sought to charge appellees, by notice served on them on the 26th of April, 1881, that if they held the premises the next year he should charge them $3600 therefor.

The main controversy arises on the rulings of the Superior Court in refusing an instruction asked by appellant, and in giving two instructions asked by appellees, when considered with reference to this state of case.' That asked by appellant, and refused by the court, is in these words:

“If the jury believe, from the evidence, that the plaintiff in this case took a lease of the premises in question for one year, from the 1st day of May, 1880, which lease contained a clause that the plaintiff, at the expiration of that year, had the option to have the said premises for another year unless the said owner should sell the same before the expiration of the said first year, and if the jury further believe, from the evidence, that the said owner did not sell the said premises before the expiration of said year, then the said plaintiff had the right, under said lease, to hold the said premises for another year; and if, at the expiration of the first year of said lease, the defendants were in possession of said premises under the plaintiff, and as his tenants, and if the jury further believe, from the evidence, that the plaintiff, Sutherland, gave notice before the end of said first year, to said defendants, that if they continued in possession after the expiration of said first year of his said lease then he should hold them to pay as rent for the second year, as stated in said notice by the plaintiff to the defendants, namely, the sum of $3600, and if the jury further believe, from the evidence, that the said defendants, after they received such notice, continued in possession of said premises, then the defendants became liable to said plaintiff to pay the rent at the rate of $300 per month, for the year, from May 1, 1881, to May 1, 1882; and if they believe that such rent has not been paid to said plaintiff, then the jury will find for the plaintiff, and assess the damages accordingly.”

The instructions given at the instance of appellees are as follows:

“On the part of the defendant the court instructs the jury, that if they believe, from the evidence, that one Granville S. Ingraham owned the premises in question, and executed a lease therefor to the plaintiff for one year, with the privilege of renewing for one or more years, provided said Ingraham did not sell the premises before the 30th day of April, 1881, and if they further believe, from the evidence, that the premises were sold by said Ingraham before the 30th day of April, 1881, then they should find for the defendants.
“The court instructs the jury, as a matter of law, that in order to constitute a sale of real estate' within the meaning of the clause in the lease introduced in evidence by plaintiff, it is not necessary that a deed should actually be executed and delivered, but any written agreement by or under which a party may enforce the making and delivery of a deed of conveyance, and in pursuance of which a deed is subsequently executed» and delivered, is, in the eyes of the law, a sale, within the meaning of said clause in said lease. ”

We are of opinion appellant has not been prejudiced by either of these rulings.

First—If the lease was assigned by appellant to appellees, as they contend, it is a sufficient answer to the position of appellant, that the option clause, as well as the other clauses of the lease, passed, by virtue of the assignment, to appellees. (Taylor on Landlord and Tenant, 2d ed. sec. 445.) But if, as appellant contends, the premises were only sub-let by him to appellees, it is to be observed the sub-letting could not be, and he does not claim that it in fact was, extended beyond the term of the letting to him, of which he was then in the possession. The clause giving the option to appellant to renew the lease is not a present demise of the premises for a term.eommeneing on the first day of May,, 1881, and ending with the month of April, 1882,—it is a mere covenant or undertaking to let appellant have such a term upon the eonditioninamed, at his election,—and hence, for a failure on the part of Ingraham to give possession and allow the use of the premises for and during such term, appellant’s only remedy would be by bill in equity for specific performance, or by action at law on the covenant or undertaking. (Hunter v. Silvers, 15 Ill. 174; Taylor on Landlord and Tenant, sec. 332.) If appellant had been let into possession of the premises after the 30th of April, 1881, his occupancy thenceforth would, we concede, have been under the option clause, and he could consequently then have only been held to the same terms as for the first year; but since his present letting expired with the 30th of April, 1881, the sub-letting of that term to appellees must necessarily have expired at the same time, and with it, of course, terminated appellees’ obligations to appellant as sub-tenants. Before that period they could do no act in denial of their obligation to attorn to him. After it, their relations having terminated, they could accept whom they pleased as landlord. The notice given by appellant, in advance of the expiration of the first term, that if appellees continued to remain in possession of the premises the next year he should require them to pay at the rate of $3600 per annum, could amount to nothing, because he was not then possessed of the term for which he proposed to make the charge, and he never afterwards became so possessed. It is too evident to require argument that he could not, by such a notice, cut off the rights of appellees to accept another landlord when their duties to him as sub-tenants should cease, and compel them to wholly abandon the property at the end of that term or accept him as their landlord upon his own conditions. "When that notice was given he not only possessed no term about which to negotiate, but he could not know, until the end of the month of April, whether, under the clause giving him the option, the condition of things would exist that would allow him to elect to take a term for another year; and since no person can be made the agent of another against his will, where his relations to that other at the time do not of themselves, in legal contemplation, make him such agent, there can he no principle upon which the possession of appellees after the month of April, 1881, (held, as it was, under Sibley, as their landlord,) can be held to have been the possession of the appellant.

The instruction refused was in direct opposition to this view of the law, and was, therefore, properly refused.

Second—The manifest purpose of reserving the right to sell the property, free of the lease, at any time before the end of the term fixed by the lease, was to enable Ingraham to give possession at the end of that term to the purchaser. Whether the deed was to be executed on one day or another, plainly could make no sensible difference to him; but it could, and doubtless would, make a very great difference to him whether the property was in a condition in which he could speedily realize its value hy a sale. The word “sale” is certainly used in its general sense, and, as we think, also in its popular sense, and therefore includes what counsel for appellant claim is but a contract of sale. It is not qualified, and properly, therefore, must embrace both absolute and conditional sales. (See 2 Bouvier’s Law Dic;,495, title “Sale,” 15.) At law a deed is essential to vest title to real estate, but in equity the title will be treated and protected as being where the parties have contracted it shall be, for that purpose holding the vendor as trustee of the legal title for the benefit of the vendee, while the latter is looked upon as trustee of the purchase money for the benefit of the vendor. Bispham’s Principles- of Equity, (2d ed.) 423; 2 Bouvier’s Law Die. supra.

In an equitable view, therefore, it is not inaccurate to say there has been a sale of real estate when there has been only a contract to that effect, and possession delivered in accordance therewith. But at law a conveyance alone does not constitute a sale. It is but the final step in the consummation of á sale. It must be executed and accepted in accordance with a precedent contract of sale, express or implied. It may be admitted that it is the last step in the consummation of the sale, but that does not determine that its date shall be regarded as the date of the sale. In cases like the present, we think, it conforms to the intention of the parties, and better subserves the end of justice, to hold that the consummation of the sale by the execution of the deed shall, by relation, vest title, and therefore evidence an executed sale as of the date of the contract, or the delivery of possession, pursuant to which it was executed. And the following cases, cited by counsel for appellees, may be regarded as authority for this view: Schneider v. Botsch, 90 Ill. 577; Rogers v. Brent, 5 Gilm. 573; Welch v. Dutton, 79 Ill. 465; Kruse v. Wilson, id. 233; Jayne v. Gregg, 42 id. 413. This accords with the effect of the ruling of the Superior Court in the instructions given.

■ Two minor objections in regard to rulings in admitting certain evidence, and in refusing to exclude certain other evidence, were urged in argument as grounds of reversal, but we presume not seriously. The evidence admitted, to which the objection was urged, was clearly admissible as secondary evidence of the contents of a lost instrument, the proper foundation having been previously laid; and the evidence sought to be excluded was. clearly admissible as fart of the res gestee, in connection with the evidence of the sale of the premises.

We approve the decision of the Appellate Court in all respects. It is therefore affirmed.

Judgment affirmed.