author: Mr. Justice Bailey

text:
    Riley Knowles v. Hiram Knowles.

      Filed at Springfield

      April 5, 1889.

    1. Pbactioe—trial 6y the court—propositions of law, cmd of fact. Where the same proposition of law is substantially embraced in one "held” by the court as in one asked and refused, there will be no error in refusing to give the latter.
    2. In a suit upon promissory notes, in which want of consideration and fraudulent misrepresentation, leading to their execution, are set up in defense, where the evidence is conflicting, a proposition submitted to the court trying the case without a jury, that the plaintiff is not entitled to recover, is a proposition of fact, and not of law, and therefore properly refused.

      Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Menard county; the Hon. Cyrus Bpler, Judge, presiding.
    Mr. T. W. MoNeely, and Mr. N. W. Branson, for the appellant.
    Mr. S. H. Blane, for the appellee.
   Mr. Justice Bailey

delivered the opinion of the Court:

This was a suit in assumpsit, brought by Hiram Knowles against Riley Knowles, to recover the amount of two promissory notes executed by the defendant to the plaintiff. Under proper pleadings the defendant set up as a defense want of consideration and also certain false representations whereby he was induced to execute said notes, and a trial before the court, a jury being waived, resulted in a judgment in favor of the plaintiff for $669.70 and costs. This judgment was affirmed by the Appellate Court on appeal, and the judges of that court having certified that the case involves questions of law of such importance, on account of collateral interests, that it should be passed upon by this court, the record has been brought here by a further appeal.

The plaintiff and defendant are brothers, and they with their brother Prettyman Knowles are the only surviving children of Marvel Knowles, a former resident of Gibson county, Indiana, and who died at that place testate July 31, 1883. In April, 1883, the defendant was indebted to his father in the sum of $2716, evidenced by three promissory notes, two of which were secured by a mortgage on the defendant’s land in Illinois; On the 24th day of that month the defendant’s father surrendered and delivered said notes to .the defendant, no part of them then being paid, and executed to him a release of said mortgage, and on the second day of May following, the defendant executed under his hand and seal, acknowledged and' delivered to his father an instrument in which, in consideration of the surrender to him of said notes and the execution of said release, he, for himself and his heirs, forever relinquished, surrendered and quit-claimed all his present and prospective interest, title or claim to any part or portion of the personal or real estate of his father.

The will of Marvel Knowles was executed September 9,1881, which was prior to the execution by the defendant of said relinquishment of his interest in his father’s estate. No change however was made in the will, and after the death of the testator it was duly probated in Gibson county, Indiana. The will, by its terms, after providing for the payment of the testator’s debts and certain specific bequests, directed that the residue of his personal estate should be equally divided between his three sons; and also, after giving a certain tract of land to a grand-daughter, devised the residue of his real estate in equal shares to his three sons, the shares of Kiley and Pretty-man to go to them and their heirs and assigns forever, and the share of Hiram to go to him during his natural life, and at his death to his children.

The defendant testifies that, at the time of the execution of the instrument of May 2, 1883, he intended to relinquish his expectancy in his father’s estate, but on examination of the will after his father’s death, he came to the conclusion that he was placed on the same footing with his brothers, and he thereupon made claim to one-third of the estate. After some discussion, his brothers executed to him. a deed conveying, as was supposed, the undivided one-third of all the lands belonging to his father’s estate, said deed being executed, according to the recitals therein contained, in consideration of one dollar, '‘and to compromise and settle all differences and rights of action and supposed rights of action and matters in dispute between the parties hereto.” The evidence as to the negotiations which led to the execution of this deed is very confused and uncertain, leaving it altogether in doubt as to what controversies were in fact taken into consideration by the parties. It is not shown that the defendant at that time raged any claim beyond the right under the will to an undivided one-third interest in the lands. That he subsequently claimed the same interest in the personal estate may he fairly inferred from the evidence, although the amount of the personal estate, after the payment of debts and specific legacies, is.not shown.

Some time after the execution of the deed last mentioned, it was discovered that it did not correctly describe the lands intended to be conveyed, a certain quarter section being therein described as only a forty acre tract, and negotiations were thereupon set on foot for the correction of the deed. The matter of such correction, as well as all other controversies with the defendant in relation to their father’s estate was placed by the defendant’s brothers in the hands of their attorneys in Indiana, and the defendant was referred by his brothers to them. The defendant thereupon called upon said attorneys and had an interview with them which lasted from four o’clock in the afternoon to three o’clock the next morning. In that interview said attorneys insisted that the defendant was still liable to the estate for the amount of the notes surrendered by his father, and that the same could be collected of him with interest, and that if he did not pay or account for the notes, he could not share in the distribution of his father’s estate. The defendant, on the other hand, insisted that the notes were cancelled and that he was owing the estate nothing. As the result of the interview, said attorneys made a proposition which the defendant accepted, that to settle the entire controversy, the defendant should execute his promissory notes for two-thirds of the $2700, one-half payable to each of his brothers, and thereupon the defendant executed his six promissory notes for $300 each, three payable to his brother Hiram and three to his brother Prettyman. The notes in suit are two of the notes executed to Hiram. Soon afterward, and in pursuance of the arrangement then made, the defendant reconveyed to his brothers the lands conveyed by the deed containing the erroneous description, and a new deed was executed to him. by which his brothers conveyed to him an undivided one-third of said lands by a correct description. That deed contained the following clause: “And it is further agreed by the grantors herein, that they, as heirs of Marvel Knowles, do hereby release the grantee, the said Eiley Knowles, from any and all obligations and releases which the said Eiley Knowles incurred and referred to in a certain release executed by him to said Marvel Knowles on the 2d day of May, 1883.”

It is insisted by the defendant that in the settlement with said attorneys he was overreached and defrauded, and also-that the notes then given, in view of the previous settlement, between the parties, were wholly without consideration. It will readily be seen from the foregoing statement that the questions thus raised are purely questions of fact, and as all-questions of that character have been conclusively settled adversely to the defendant by the judgment of the Appellate Court, there is nothing left for us to do but to adopt the conclusions of that court.

The only questions of law presented by the record are those which arise upon the written propositions which the defendant asked the Circuit Court to hold as the law in the decision of the case. Nine such propositions were submitted on behalf of the defendant, the first five of which were marked “held”' by the court. Of the four propositions refused, the first and second are substantially embodied in those marked “held.”' The third and fourth are simply to the effect that under the evidence the plaintiff was not entitled to recover. As the plaintiff made out his case by the production of the promissory notes-sued on, and as the defenses urged were want of consideration, and misrepresentations by the plaintiff’s attorneys whereby the defendant was induced to execute the notes, the adoption of those propositions would have been tantamount to holding as a matter of law that said defenses, or one of them, had been conclusively established. The evidence however is by no means so clear and satisfactory as to necessitate the conclusions contended for, but was susceptible of constructions leading to conclusions adverse to the defenses interposed. The questions presented were therefore questions of fact and not of law, and it would have been erroneous to hold as a matter of law that said defenses were proved. ■

There being no error in the record the judgment of the Appellate Court will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Chief Justice Craig

license: Public Domain

text:
    Samuel S. Chisholm v. Theodore Williams et al.

      Filed at Springfield

      April 5, 1889.

    1. Meottaniq’s dien—of the estate or interest to which the lien may attach. The statute gives a mechanic's lien for labor or materials upon any estate or interest the owner may have in the premises at the time of making the contract. The statute gives the lien against a party in possession claiming to own the title, and it is not necessary to show the title any further, in order to create the lien.
    2. Same—time of payment—extension thereof. To give a party furnishing labor and materials in the erection of a building a lien upon the premises, the contract must provide for payment within one year from the time stipulated for the completion thereof. H the price is to be paid within that time, a lien attaches, and it will not be lost by a subsequent extension of the time of payment.
    3. Benewad note—whether it will operate as payment of the prior note. As a general rule, a new note given in renewal of another one will not be regarded as a satisfaction of the first, unless there is an express or implied agreement to that effect.
    4. A party entitled to a mechanic’s lien for improvements on certain property, took the owner’s note, payable within twelve months from the time fixed for the completion of the work, and transferred the same to a third party, who, on its maturity, took a new note in renewal of the same, giving further time for payment, and took judgment thereon. The original payee took an assignment of the judgment, and offered to cancel the same in such manner as the court might direct: Held, that the latter had a right to a decree for a mechanic’s lien on the original note, although the time when the renewal note fell due was more than one year after the time fixed for the completion of the work.
    5. Costs—on modification of decree—on appeal. Where a decree for ' a mechanic’s lien, on appeal, was modified by a reduction of the amount found to be due, but otherwise affirmed, this court directed that each party pay one-half the costs in this court.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Coles county; the Hon. C. B. Smith, Judge, presiding.
    This was a proceeding brought by Samuel S. Chisholm and Wellington C. Chisholm, partners, composing the firm of Chisholm Bros., against F. F. Randolph, the First National Bank of Charleston, the First National Bank of Norwalk, Ohio, Theo. Williams and Frank Goodnow, to enforce a mechanic’s lien on certain mill property in Charleston, Illinois, for the payment of $2105, due June 15, 1883, and the interest thereon.
    The contract under which the labor was performed and the materials were furnished was as follows:
    “A memorandum of contract entered into this 10th day of May, 1882, between Chisholm Bros., of Chicago, Illinois, of the first part, and F. F. Randolph, of Decatur, Illinois, of the second part.
    “ Witnesseth, that the party of the first part, for and in consideration of the sum of $18,500, paid, as hereinafter described, by the party of the second part, hereby contract and agree to make or cause to be made the following improvements and work in the flouring mill at Charleston, Illinois, owned by said party of second part, viz.: A full set of Jonathan Mills’ reduction machines, seven in number, with all their attachments and appurtenances. s * * Above work is to be completed, the mill furnished and in running order, by the 1st day of August, 1882, and the party of the first part agree to hold themselves liable for any loss to the party of the second part for any detention or delay in starting after said date of August 1, 1882; * * * and in consideration of the faithful performance of above mentioned contract by the party of the first part, the party of the second part agrees and binds himself hereby, as follows: To pay or cause to be paid to the party of the first part, or their order, the sum of $10,500 in cash during the performance of this work, as follows: All freights as they arrive, the weekly bills or wages of the workmen employed to do this work, and such other sums of money up to $10,500 on the machinery and other articles furnished, as they arrive from this time to August 1; and at the expiration of the time set, and upon completion and satisfactory performance, as above stated, of said mill, he will (party of the second part) execute his promissory note for $8000, in? equal sums of $2000 each, at three, six, nine and twelve months, respectively, to the party of the first part, or their order, adding to the six months and nine months notes $70 and $105, respectively, in lieu of interest on same. * * * The party of the first part have the right conceded to them to use all material, lumber, belting, machinery, shafting, and other matters now in said mill, without cost to them, in the completion of said contract, but have no control over any material not so used.”
    The materials were furnished and the mill was completed according to the terms of the contract. The work was not completed, however, until the 15th day of September, 1882, but upon the completion of the work the mill was accepted by Randolph, and the four notes for the $8000 remaining due were then all executed, due in three, six, nine and twelve months, as provided in the contract. These notes were all paid except the one for $2105, due in nine months, which was assigned before maturity to Nordyke & Harmon Co., a corporation of the State of Indiana. Three days after the maturity of this note, and on June 18, 1883, Randolph executed to Nordyke & Harmon Co. a new note for $2105, due in four months, with interest at eight per cent, which was guaranteed by Chisholm Bros., and the old note was surrendered. Neither the old note nor the new one has ever been paid. A judgment, however, was rendered in favor of Nordyke & Harmon Co. on the new note, November 27, 1883, for $2179.29, the amount of principal and interest. This judgment, at the time of the filing of the petition, was owned and held by Chisholm Bros., the petitioners, and they offered, in their bill, to cancel and satisfy the judgment in such manner as the court might direct.
    • As heretofore said, the petition was brought to collect the amount of the note which became due in nine months after it was executed, to-wit, June 15, 1883, which was executed for $2105. As to the execution and delivery of the new note on the 18th of June, 1883, by Randolph to Nordyke & Harmon Co., for said sum of $2105, in the place of the original note, it is alleged in the petition, that said last note was not a payment of said original note, and that there was no agreement or understanding between said Randolph and orators that such note should he in satisfaction or payment of the original indebtedness, but upon the contrary, orators aver that said indebtedness of $2105, so originally evidenced by said third promissory note, remained due and wholly unpaid to your orators; that they have frequently requested said Randolph to pay the same, etc.
    In the circuit court, the First National Bank of Charleston filed a disclaimer, and was dismissed out of the case. Randolph, after the cause was remanded from the Appellate Court, failed to answer, and a default was taken as to him. The other three defendants, the First National Bank of Norwalk, Ohio, Theo. Williams and Frank Goodnow, answered the bill. A replication was filed, and on a hearing before the court, a decree was rendered in favor of complainants, which was affirmed in the Appellate Court.

      Messrs. Craig & Craig, for the appellant:
    When the contract is made with one having no title to the land, no lien will attach thereto. Reed v. Houston, 12 Iowa, 35; Rev. Stat. chap. 82, sec. 1.
    Any improvement made by an outsider without the written consent of the railroad, would not create a lien on the realty. If it did, the railroad is a necessary party. Dunphy v. Riddle, 86 Ill. 26; Crowl v. Nagle, id. 440; Scanlan v. Cobb, 85 id. 296; Gates v. Savings Bank, id. 256.
    The new note taken by Nordyke & Marmon Co., and the judgment thereon, operated as a discharge of the prior note. Wilkinson v. Stewart, 30 Ill. 58; Smalley v. Edey, 19 id. 211.
    The taking the new note for the debt and interest was a waiver of the lien. Kinzie v. Thomas, 28 Ill. 505; Conover v. Warren, 1 Gilm. 501; Cowl v. Varnum, 37 Ill. 183.
    Messrs. Wiley & Neal, for the appellees:
    The lien attached to any interest that Randolph may have had in the land. (Rev. Stat. chap. 82, sec. 2.) It extends to after-acquired interest in property. Insurance Co. v. Batchen, 6 Bradw. 621.
    A person in possession is considered the owner. 2 Phillips on Mechanic’s Liens, sec. 69.
    The extension of the time of payment does not defeat the lien. Paddock v. Stout, 121 Ill. 571.
    A mechanic’s lien is assignable. Insurance Co. v. Batchen, 6 Bradw. 621; Davis v. Billsland, 18 Wall. 659; Ritler v. Stevenson, 6 Cal. 388; Isage v. Bossieux, 15 Graft. 83; Kenny v. Gage, 33 Vt. 302; Tuttle v. Howe, 14 Minn. 150; Phillips on Mechanic’s Liens, secs. 54, 55.
    The taking of a note on account of a debt operates as a conditional payment, and the understanding of the parties is, that if paid, it shall discharge the original debt. Phillips on Mechanic’s Liens, sec. 275; Sutherland on Damages, p. 375;
      Heartt v. Rhodes, 66 Ill. 351; Morrison v. Smith, 81 id. 221; Bond v. Insurance Co. 106 id. 654.
    A party may return the note and bring suit upon the original cause of action. Stevens v. Bradley, 22 Ill. 244; Hughes v. Wheeler, 8 Cow. 76; McConnell v. Stettinius, 2 Gilm. 707.
    What constitutes a waiver must be determined from the circumstances of each particular case, it being essentially a question of intention, such intention implying either an actual determination of the lienholder to surrender the right, or such acts on his part that the public may reasonably suppose he had waived his security of lien. Phillips on Mechanic’s Liens, sec. 273.
    The time for instituting a suit to enforce the lien must have expired before the note or other security becomes due, in order to produce a waiver. Phillips on Mechanic’s Liens, sec. 282.
   Mr. Chief Justice Craig

delivered the opinion of the Court :

It is said in the argument, that the time of payment was extended beyond one year from the completion of the work, and this defeated the lien. Section 3, chapter 82, of our statute, entitled “Liens, ” provides: “ When the contract is expressed, no lien shall be created if the time stipulated for the completion of the work or furnishing materials is beyond three years from the commencement thereof, or the time of payment beyond one year from the time stipulated for the completion thereof.” Here, the work was completed on the 15th day of September, 1883, and the note in question was made payable in nine months from that time,’ which would be less than one year, and clearly within the terms of the statute.

But it is argued that the extension of the time of payment for four months after the note became due, made the money payable more than a year from the time of the completion of the contract, and thus the lien was lost. The same question arose in Paddock v. Stout, 121 Ill. 572, and we there held that the extension of the time of payment after the execution of the contract would not defeat the lien,—that the lien depends upon the provisions which the contract makes as to the time of payment. Here, under the contract made by the parties, the time of payment was not extended beyond one year from the completion of the work, and complainants have not lost the lien conferred by the statute.

It is also claimed that Randolph had no interest in the premises in controversy on the 1st day of May, 1882, when he made the contract with the complainants, and upon this ground the decree is erroneous. Our statute does not require that a person should own the fee to enable a mechanic to obtain a lien. It declares: “The lien provided for * * * shall extend to an estate in fee, for life, for years, or any other estate, or any right of redemption or other interest which such owner may have in the lot or land at the time of making the contract.” The language here employed is very broad, and is sufficient to carry the lien to any title whatever that Randolph might possess when he entered into the contract. What title Randolph held when he entered into the agreement with the complainants we are not called upon to determine in this proceeding. The evidence shows that he was in possession of the premises, claiming to be the owner of the mill, when the contract was made. It also appears, that in 1881 the First National Bank of Charleston leased the premises to Neal Bros, for five years, with the privilege of buying. This contract was transferred by the Neal Bros, to Randolph as early as February, 1882, and he was placed in possession of the property. It will not be necessary to trace the title back from the First National Bank of Charleston, and show that the bank derived a title in fee or for years. It is enough that the evidence shows Randolph in possession of the premises, claiming title therein.

It is also claimed, in the argument, that the surrender of the note due June 15,1883, and the acceptance of the note of June 18, 1883, payable to Nordyke & Harmon Co., and the rendition of judgment thereon, was a payment of the original note, and a discharge of the lien given by the statute. If the last note, under an agreement of the parties, had been accepted as payment of the first note, there would be much force in the position of counsel; but such was not the case. It is shown by the evidence, beyond question, that there was no understanding or agreement that the last note should be accepted as payment of the first. We think it may be stated to be a general rule, that a new note given in renewal of another note will.not be regarded as a satisfaction of the original note, unless there is an express or implied agreement that such was the intention of the parties.

If we are correct in this position, then it is clear that the debt due on the 15th day of June, 1883, ($2105,) has never been paid or discharged, and as complainants have an assignment of the judgment rendered upon, the note given in renewal, and were prepared to cancel it when, the bill was filed, no reason is perceived why they could not maintain their bill, as held in the circuit and Appellate courts. But upon an examination of the decree rendered in the circuit court, it appears that the decree requires Bandolph to pay $2709.28 within a specified time, with interest from December 16, 1887. This was a larger sum than -was actually due. The basis of the decree should have been the amount due June 15, 1883,— $2105,—for which the original note was executed. Computing interest on this amount from June 15, 1883, until December 16, 1887, at six per cent,—four years, six months and one day,—the amount due will be $2673.70,— $35.59 less than the amount decreed to be paid.

As to the excess of $35.59, the decree of the circuit eoprt and the judgment of the Appellate Court will be modified. In all other respects they will be affirmed, each party to pay one-half of the costs in this court.

Decree reversed in part and in part affirmed.


author: Mr. Justice Wilkin

text:
    R. Jordan Prichard v. David Littlejohn.

      Filed at Springfield

      April 5, 1889.

    1. Bill for partition—requisites—in setting forth the interests of all the parties. A bill for the partition of land must set forth the interests of all the parties in the premises, as the court is required by the statute to find and declare the rights, title and interests of all parties. A bill which fails to do this is insufficient.
    2. Same—cross-bill—not appropriate or necessary. A cross-bill is not an appropriate pleading in a suit in chancery for the partition of land. The defendant, by requiring the complainant to file a proper bill and specifically answering the same, may obtain all the relief he can on a cross-bill. But by answering the cross-bill the eomplain'ant treats'it as a proper pleading.
    3. Same—allegations and decree—should correspond. A cross-bill in a suit for partition averred that the complainant therein and one S. owned the premises as tenants in common, and showed that the complainant in the original bill had an interest in the land in common with the complainant in the cross-bill. The court, by its decree, found that the two complainants were tenants'in common : Held, that there was a material variance between the cross-bill and the decree.
    4. A cross-bill for the partition of land averred that the complainant was the owner of an undivided one-third interest in one of the tracts, and one S. of the other two-thirds, and this part of the bill was wholly disregarded in the decree : Held, that if it appeared on the hearing that the complainant in the original bill, and not S., was tenant in common with the complainant in the cross-bill, as the decree found, then the cross-bill should have been dismissed, unless it was amended so as to make it correspond with the proofs.
    Appeal from the Circuit Court of Fulton county; the Hon. John C. Bagby, Judge, presiding.
    This was a bill for partition, filed by the appellant, against appellee, November 26, 1886, on the chancery side of the Fulton circuit court, to the December term, 1886. The real controversy between the parties grows out of their conflicting claims of ownership to the undivided two-thirds of the north-

      west quarter of the south-east quarter of section 13, town 5 north, range 2, east of the fourth principal meridian, in Fulton county, Illinois. By his original bill, appellant alleges that he and appellee are tenants in common to the whole of the southeast quarter of said section 13, appellee being the owner of an undivided 13j- acres, and he of the balance of the 160. There is a vague allusion to a deed from Abraham Littlejohn to appellee, but that part of the bill is wholly unintelligible. At the December term, 1887, the bill was amended, by alleging, . “that on or about the .... day of August, 1868, the defendant made a certain deed of conveyance, wherein he conveyed to Abraham Littlejohn, his brother, the north-east quarter of south-east quarter and one-third interest in south-west quarter of south-east quarter of section 13, town 5 north, range 2, east of fourth principal meridian, Fulton county, Illinois, and on the same day, and at the same time, the said Abraham Little-john conveyed to the grantor of your orator, Thomas H. Scoville, the two-thirds interest in the north-west quarter, and the like interest in the north-east quarter, and one-third interest in south-west quarter, all in south-east quarter of section 13, town 5 north, range 2, east of fourth principal meridian; but your orator says there was a mistake made in the description of the premises intended to be conveyed by the defendant to said Abraham Littlejohn, in the first mentioned deed, and while the description was therein as above set forth, yet, in truth and in fact, the intention of both grantor and grantee was, the former to convey and the latter to receive thereby and therein a two-thirds interest in the north-west quarter, the like interest in the north-east quarter, and one-third interest in the south-west quarter of section 13, town 5 north, range 2, east of the fourth principal meridian, Fulton county, Illinois; that at the time, all of said parties supposed that the said deeds were alike in their description of the premises designed and supposed to be conveyed, and immediately thereafter the said grantor of your orator (Thomas H. Scoville) entered into possession of the premises, and all of the same, as described in his deed from the said Abraham Littlejohn to him, and occupied and held the sole, exclusive, visible, open and notorious possession of the said premises, in good faith and adverse to all the world, from that time until September, A. D. 1886, at which time your orator succeeded to his rights, and took the like possession of the same, and has held it to the present time; that the said Thomas H. Scoville paid the taxes on said lands, as described in the deed from Abraham Littlejohn to him, during all the said time he was in the possession of the same, and that your orator has paid the taxes since. Your orator alleges he is the sole, exclusive and real owner of the premises so conveyed to him by the said Thomas H. Scoville, and which he received from the said Abraham Littlejohn. Whereupon your orator claims that said deed from said defendant to Abraham Littlejohn should be reformed in said description to conform to the said intentions of the parties thereto, and your orator be decreed to be the real owner of the same, as the grantee of the said Thomas H. Scoville.”
    It will be seen appellant claims, by his amended bill, to be the owner of the undivided two-thirds of the north-east and north-west quarters, and one-third of the south-west quarter of said south-east quarter of section 13, but says nothing as to the ownership of the other interests.
    The answer to this bill, as amended, denies that there was any mistake in the deed from appellee to Abraham Littlejohn, and denies that Abraham conveyed to Scoville a two-thirds interest in the north-west quarter, and denies that he had any such interest to convey. He admits, however, in this answer, that he did convey to said Scoville a two-thirds interest in the north-east quarter, as alleged.
    An answer to the original bill also appears in the record, which is as unintelligible as the bill. In one clause it “admits E. Jordan Prichard, by certain deeds of conveyance, which were duly recorded, made and executed by the heirs of Abraham Littlejohn, deceased, is owner in fee of the said described tract, less 13j- acres, undivided, which is alleged to belong to this defendant. ” In the next clause all this is in effect denied.
    Replications were filed to these answers. At the March term, 1887, appellee filed a cross-bill, in which he avers that he is “seized in fee of an undivided one-third interest in the south-west quarter and the north-east quarter of the said south-east quarter of said section 13, and in fee simple of an undivided two-thirds interest in the north-west quarter of said south-east quarter of said section 13; that by purchase since the decease of said Abraham Littlejohn, R. Jordan Prichard became and is seized in fee simple of the south-east quarter of the said south-east quarter of said section 13; that Thomas Scoville became and is seized, by purchase, of an undivided two-thirds interest in the south-west quarter and the northeast quarter of said section 13, and of an undivided one-third interest in the north-west quarter of said south-east quarter of said section 13.” To this cross-bill Thomas H. Scoville was made party defendant, as was also appellant. Scoville was not served with process, and the cross-bill was afterwards dismissed as to him. Without any amendment, and, so far as the record shows, (except by recital in the decree,) without any answer thereto, the court below proceeded to render a decree of partition upon said cross-bill alone, reciting, “the count finds that the allegations of said cross-hill are true,” but decreed that appellee, complainant in the said cross-bill, is entitled to one-third of the south-west and two-thirds of the north-west quarter, and that appellant is entitled to two-thirds of the south-west quarter and one-third of the north-west quarter of said south-east quarter of section 13, etc., making' no disposition whatever of the north-east quarter. The decree also appoints commissioners to make partition according to the decree, and from that decree appellant appeals to this court.
    The unsatisfactory state of the record, arising from the pleadings, is increased by what appears to have taken place at the hearing. A report of the master in chancery, reciting that the case had theretofore been referred to him, shows, “that he has examined the title to the lands described, and finds that by divers deeds, as appears recorded on the land records of said county, the title to said land described in the foregoing deposition of Thomas H. Scoville, all passed into the said Thomas H. Scoville, except the undivided one-third of the south-west quarter of said quarter section, which remained and still does remain in David Littlejohn, and that by deed of date September 13, 1886, said Thomas H. Scoville conveyed the north-half and the undivided two-thirds of southwest quarter of said south-east quarter, section 13, town 5 north, range 2 east, to E. Jordan Prichard, and that the said E. Jordan Prichard is now the owner in fee, as appears, and under said deed, of the north half and the undivided two-thirds of the south-west quarter of south-east quarter, section 13, and David Littlejohn is the owner in fee of the undivided one-third interest in said south-west quarter of south-east quarter, section 13, in town 5 north, range 2 east.” No order of reference to the master appears in the record. No exceptions whatever appear to this report, and the decree recites that the testimony was taken in open court, and a bill of exceptions and an amended bill of exceptions appear in the record, purporting to contain the evidence introduced on the trial. Numerous deeds were offered, but not one of them appears in the bill of exceptions, and they are shown only in the form of an abstract, giving date, parties, and a general description of the premises conveyed, and, in some instances, the consideration appears in the amended bill of exceptions.
    Mr. J. W. Bantz, for the appellant.
    Mr. D. Abbott, and Mr. H. W. Mastebs, for the appellee.
   Mr. Justice Wilkin

delivered the opinion of the Court:

After the foregoing statement little need be said by way of opinion in this ease. The cross-bill was improperly filed. Appellee, by requiring appellant to file a proper bill, and specifically answering the same, could have obtained all the relief he seeks by the cross-bill. There seems, however, to have been no objection to it. By answering, appellant treated the cross-bill as a proper pleading in the case, and the court below makes it the basis of its decree.

There is a material variance between the allegations of this cross-bill and the decree. The cross-bill alleges that appellee and Thomas H. Scoville are tenants in common, and shows that appellant has no interest whatever in common with him. The decree drops Scoville out of the case, ignores the allegation as to his interest, and, contrary to the averments of the cross-bill, finds that appellant and appellee are tenants in common. Not only so, but the cross-bill avers that appellee is the owner of an undivided one-third interest in the northeast quarter, and Scoville of the other two-thirds, and this part of the bill is wholly disregarded in the decree. If it appeared, on the trial, that appellant, and not Scoville, was tenant in common with appellee, as the decree finds, then the cross-bill should have been dismissed, unless appellee chose to amend it so as to make it correspond with the proofs.

The decree is unsupported by the cross-bill, and for that reason must be reversed. Had the decree been based on the original and amended bills, it would have been equally erroneous. By the original bill, appellant claims title to the whole of the 160 acres, except the undivided 13j- acres in appellee. By the same, as amended, he only claims a two-thirds interest in the north-east quarter and north-west quarter, and one-third interest in the south-west quarter, and wholly fails to set out the title as to the remaining interests.

A bill for partition must set forth the interests of all parties interested in the premises. The court must ascertain and declare the rights, title and interests of all parties to the suit. These are plain requirements of the statute, and must be conformed to. As has been said by this court, when it is considered that titles to valuable lands can be divested by this .statutory proceeding, it is essential that the statute should be observed, and it has often been held, that a decree in partition which fails to find the respective interests of the several tenants in common, is erroneous.

As we are compelled to reverse this decree and remand the cause, that the issue between the parties may be presented by proper pleadings, we shall express no opinion at this time as fo the merits of the respective claims of the parties to the north-west quarter of the south-east quarter of section 13.

The decree of the court below will be reversed, and the ■cause remanded, with leave to the respective parties to amend them pleadings and introduce further proofs, if they shall so desire.

Decree reversed.


author: Mr. Justice Magbudeb

text:
    Isaiah V. Williamson et al. v. Isaac Stone et al.

      Filed at Springfield

      April 5, 1889.

    1. Deed oe teust—with power of sale—trustee as the representative ■ofboth parties. Where a trust deed is made to secure a debt, the trustee named therein is the representative, not only of the owner of the debt, but also of the maker of the deed. He is the agent of both the creditor .and the debtor. His duty is to act fairly toward both, and not exclusively in the interest of either. The law requires the conduct of such ■a trustee to be absolutely impartial, as between the two parties whom he represents. Hence, his relations with one of them ought not to be of such a character as to tempt him to neglect the interest of the other.

      2. Same—trustee fixing amount of bid. It is not proper for a trustee , appointed in a deed of trust, to direct the representative of the creditor , what bid he shall make, but it is his duty to offer the property at public auction, in such a way as to make it bring' the highest possible price, and to leave the parties to decide for themselves what they will offer for it.
    3. Same—setting aside trustee’s sale—redemption—inequity. A trustee after the sale wrote to'the creditor: “We bid the property off for $9000, 1 and shall take judgment for the balance of about $4000. * * * My impression is, we had better get a quitclaim deed from Mr. S. (the debtor,) and, if you desire, will have one sent to him to sign. I did . not bid the whole amount on the property, as I thought, by having four ; or five thousand dollars hanging over him, he would- be more willing , to give us a deed of the property." It appeared that the trustee was the confidential adviser and the business agent of the creditor, and employed one of his attorneys to bid on the property, and directed the-' amount of the bid at much less than the value of the property, for the-purpose of forcing the debtor to make a deed : Held, that the action ' and conduct of the trustee were such as to require the setting aside of the sale and allowing a redemption.
    4. A court of equity will always examine with the closest scrutiny a sale that is made under the power contained in a trust deed, and when the rights of third persons have not intervened, redemption from such a sale, conditioned upon the full payment to the holder of the indebtedness of all that is due him, will be allowed, when there is evidence of any such unfairness on the part of the trustee, whether intentional or not, as has resulted in injury to the debtor.
    5. Laches—knowledge of the facts, essential. Where the facts relied on to set aside a trustee’s sale of property under a power in a trust deed are not discovered until after the filing of the original bill, and they are, when discovered, set up by an amended bill, laches will not be imputable to the complainant.
    Appeal from the Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. M. F. Tttley, Judge, presiding.
    Messrs. Gbegoby, Booth & Hablan, for the appellants:
    No request by the beneficiary is necessary to authorize a trustee to make a sale. Booth v. Wiley, 102 Ill. 84.
    The trustee is not bound to delay a sale to wait for a more favorable time. 2 Jones on Mortgages, sec. 1875; Franklin v. Green, 2 Allen, 519; Davy v. Durrant, 1 DeG. & J. 535.

      Inadequacy of price, unless so gross as to raise a presumption of fraud, is no ground to set aside the sale. Jenkins v. Pierce, 98 Ill. 646; Hoyt v. Pawtucket Institution, 110 id. 390; Hoodless v. Reid, 112 id. 105.
    The sale will not be set aside for mere irregularities, when fairly and honestly conducted. Dawkins v. Patterson, 78 N. C. 384; Markey v. Langley, 92 U. S. 142; Smith v. Black, 115 id. 308.
    The appellee is not entitled to redeem, from his long acquiescence, and laches. Insurance Co. v. Boggs, 121 Ill. 119; Burr v. Borden, 61 id. 389; Dempster v. West, 69 id. 613; Bush v. Sherman, 80 id. 160; Gibbons v. Hoag, 95 id. 45; Jenkins v. Pierce, 98 id. 646; Hoyt v. Pawtucket Institution, 110 id. 390; Howe v. South Park Comrs. 119 id. 101.
    Mr. William G. Goudy, for the appellees:
    This is not a bill to set aside a sale, but is a bill to redeem from a mortgage which has not been foreclosed.
    Phelps was disabled from executing the power of sale as a trustee. He was acting for Williamson, and seeking to promote his interests. He could not occupy a double position. Miles v. Wheeler, 43 Ill. 126.
    Sales under a power being liable to abuse, are watched jealously by courts of equity. Burr v. Borden, 61 Ill. 389; Longwith v. Butler, 3 Gilm. 33.
    There was no actual sale, but only one of form, for the purpose of cutting off the equity of redemption, and the sale, in the manner in which it was conducted, was not one within the terms of the power. The conduct of Phelps.was unfair, and the Stones were injured by his act.
    As the bill is not to set aside a sale for irregularity, but to redeem, there is no laches, and hence the cases cited do not apply.
   Mr. Justice Magbudeb

delivered the opinion of the Court:

This is a hill to redeem from a sale made under a trust deed. By trust deed, dated June 17, 1875, Isaac Stone and his wife Julia A. Stone conveyed three lots in Chicago, with the improvements thereon, known as Nos. 122,124 and 126 Quincy Street, to Erskine M. Phelps, as trustee, to secure a note for $12,000.00 of same date made by Isaac Stone, payable to I. V. Williamson three years after date, with interest at eight-per cent per annum payable semiannually. Stone lived in Northampton, Massachusetts, Williamson in Philadelphia, Pennsylvania, and Phelps in Chicago. The'note was given for money loaned by Williamson, through Phelps, to Stone. The sale was made by the trustee on December 23, 1878, for the nonpayment of the principal note and the last interest note, both of which fell due on June 17, 1878. The property was sold to Williamson for $9000.00, and a trustee’s deed was executed in pursuance of the sale. This bill was filed on August 11, 1883, by Stone and wife against Williamson and Phelps. The Circuit Court allowed the redemption and decreed in favor of the complainants. This decree having been affirmed by the Appellate Court is brought before us by appeal from the latter Court.

Where a trust deed is made to secure the payment of a debt, the trustee named therein is the representative, not only of the owner of the indebtedness, but also of the maker of the trust deed. He is the agent of both the creditor and the debtor. His duty is to act fairly towards both, and not exclusively in the interest of either. The law requires the conduct of such a trustee to be absolutely impartial as between the two parties whom he represents. (Ventres v. Cobb, 105 Ill. 33; Cassidy v. Cook, 99 id. 385; Meacham v. Steele, 93 id. 135.) Hence, his relations with one of them ought not to be of such a character as to tempt him to neglect the interests of the other.

We do not think that Phelps, the trustee in the present ease, was guilty of any intentional fraud in his conduct towards Stone. But at the time the trust deed was executed, and from that time to the date of the sale and thereafter, he was the agent of Williamson in making and collecting the loans and looking after the business of the latter in Chicago. As a consequence of the relation which he thus sustained, he so conducted the sale under the trust deed as to make it enure to the advantage of Williamson and to the disadvantage of Stone. We can not go into a lengthy examination of the testimony, which consists mainly of correspondence between Stone and Phelps, and between them both and Williamson, but will only glance at a few features of it.

Three days after the sale, towit: on December 26, 1878, Phelps thus wrote to Williamson: “On the 23d inst., I bid in the property and should have written you the next day, but did not, on account of two real estate brokers assuring me they had an offer for the property sufficient to pay us out in full. * * * We bid the property off for nine thousand dollars, and shall take judgment against Mr. Stone for the balance of about four thousand dollars. * "* * My impression is, we had better get a quit-claim deed from Mr. Stone, and, if you desire, will have one sent for him to sign. I did not bid the whole amount of the property, as I thought by having four or five thousand (dollars) hanging over him he would be more willing to give us a deed of the property.”

This language, literally interpreted, would convey the idea, that Phelps was not only auctioneer at the sale, but bidder as well. The testimony, however, shows that an attorney by the name of Francis W. Jones bid off the property for Williamson. Although Jones collected some rents and remitted them to Williamson, and perhaps transacted some other business for him, yet as matter of fact he was the attorney of Phelps. He never saw Williamson, and what he did for the latter he did at the request and under the direction of Phelps. Jones con-suited with Phelps before the sale as to the amount to be bid, and was present at the sale at the request of Phelps. Phelps says in his testimony that he exercised his own judgment as to the amount of the bid, and struck the property off at $9000.00, and that he has no, recollection of receiving any instructions from Williamson as to the sum to be bid. It thus appears, that, although Jones made the bid, the trustee fixed the amount of it.

As is usual in such cases, there is conflict in the testimony as to the value of the property. Some of the witnesses say that it was only worth $9000.00 at the time of the sale, others place its value at that time at $22,000.00 and $25,000.00. Phelps says it was worth $24,000.00 in 1875 when'the trust deed was made, and Magill, one of the real estate experts, states that there was no difference in values in the years 1875 and 1878. It appears from letters written by Phelps to Williamson and Stone early in December, that negotiations were then going on with certain brokers for a private sale of the property at $15,000.00. The letter of December 26th as above quoted shows that Phelps had been assured, up to the day after the sale under the trust deed, of an offer sufficient in amount to cover the total indebtedness, which was not less than $13,000.00.

But, whatever may have been the value of the property on December 23, the amount bid for it on that day was not determined with reference to the value, but with reference to the possibility of forcing a quit-claim deed from Stone. It was not proper for the trustee to direct the representative of Williamson what bid he should make. It is the duty of the trustee to offer the property at public auction in such a way as to make it bring the highest possible price, and to leave the parties to decide for themselves what they will offer for it. But even if it had been allowable for Phelps to advise Jones what to bid, it was his duty to base that advice upon his own deliberate judgment as to the value of the property. Instead of this, he determined the amount of the hid by his opinion as to the amount of unpaid indebtedness, which it would require to force Stone to give a quit-claim deed. This is a matter of which Stone has a right to complain, because such conduct on the part of the trustee, who was his agent as well as the agent of Williamson, unquestionably prevented the property from bringing what it ought to have brought. Stone was injured and prejudiced by the fact that a large indebtedness was left hanging over him, which might have been can-celled, if Phelps had pursued a different course.

A court of equity will always examine with the closest scrutiny a sale that is made under the power contained in a trust •deed, and where the rights of third persons have not intervened, as is the fact in the case at bar, redemption from such a sale, conditioned upon the full payment, to the holder of the indebtedness, of all that is due to him, will be allowed where there is evidence of any such unfairness on the part of the trustee, whether intentional or unintentional, as has resulted in injury to the debtor.

We do not think there is any ground for the charge of laches .against the appellees, because the facts above set forth were not discovered until after the filing of the original bill in this cause. When they were discovered, the original bill, to which laches may have been a successful defense, was amended by setting them up.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.

Mr. Justice Shops, not having been present at the argument of the case, took no part in its consideration.


author:
Mr. Justice Scholfield
      Mr. Justice Bailey,

text:
    George F. Tyler et al. v. A. D. Sanborn et al.

      Filed at Springfield

      April 5, 1889.

    1. Agency—agent dealing in the subject matter of his agency. Axe agent appointed to sell property can not, either directly or indirectly, have an interest in the sale of the property of his principal which is within the scope of his agency, without the consent of his principal freely given, after full knowledge of every matter known to the agent which might affect the interests of the principal.
    2. It is of no consequence in such a case that no fraud was actually intended, or that no advantage was, in fact, derived from the transaction, by the agent. The rule is not merely remedial of wrong actually committed, but is intended to be preventive of wrong.
    3. An agent may undoubtedly buy of his principal and have an interest in the sale of property belonging to his principal, but in such case the burden is upon the agent to show that the principal had knowledge, not only of the fact that the agent was buying or interested, but also of every material fact known to the agent which might affect the principal, and that having such knowledge, he freely consented to the transaction. This rule is equally applicable to eases where the agent is empowered to sell at a stated price, as when his authority is to sell generally.
    4. An agent was appointed by non-resident owners of real estate to-look after the same and collect rents, and procure offers of purchase, to be submitted to his principals. He reported an offer of $1000 by B. for the property. The offer was accepted and a deed sent to the agent-for delivery on payment of that sum. B. declined finally to make the purchase, when the wife of the agent agreed to take the property at the price named, and B. made her a deed, and she paid the price to-her husband, and the two deeds were recorded, placing the legal title in the wife. This was done without the knowledge of the principals,, and no fraud in fact was intended: Held, that the transaction amounted to a sale by the agent to his wife, and was fraudulent in law, and that-the principals, upon learning the facts, had the right to have the sale and the deeds set aside.
    5. Where the owners of real property sent to their agent a deed, to-be delivered, on payment of $1000, to one who had made an offer to purchase at that price, it was held, that the agent had no authority to use the grantee in such deed as a mere trustee to convey the title to-the agent, or to some one else, so that the agent might have an interest' in the property. The law will not allow an agent to occupy a position, in which he may be tempted to betray his trust.
    6. Allegations and proofs—in chancery—proof of any one of several grounds of relief sufficient. If, from the allegations in a bill to set aside a sale maide by an agent, and the facts proved, the transaction is-deemed fraudulent in law, it is immaterial whether the allegations of fraud in fact are proved or not. If any alleged ground of relief is shown by the evidence, it will be error to dismiss the bill.
    7. Husband and wife—of their status under existing legislation—in-respect to property rights. Although the statute has so far changed the common law that a wife can now contract with her husband, and has. abolished his estate in her lands during coverture, it has not denied to-either all interest in the property of the other. The husband is still; the head of the family, and the expenses of the family and of the education of the children are chargable upon the property of both, or either of them, in favor of creditors. The husband still has an interest in. his wife’s real estate.
    Appeal from the Circuit Court of McLean county; the Hon, Owen T. Beeves, Judge, presiding.
    Messrs. Kerrick, Lucas & Spencer, for the appellants:
    An agent for the owner of real estate has no right to speculate on property committed to his care, nor has he any right to put himself in "a position adverse to the interest of his principal. Hughes v. Washington, 72 Ill. 85; Zeigler v. Hughes, 55 id. 288; Cottom v. Holliday, 59 id. 179; Coat v. Coat, 63 id. 74.
    Two deeds or contracts executed at the same time constitute-hut one transaction. Kruse v. Steffens, 47 Ill. 115.
    The law will not permit an agent to buy at his own sale, (Coat v. Coat, 63 Ill. 74; Ebelmesser v. Ebelmesser, 99 id. 548.) And that is the law, even if the sale is to be at a fixed price, Ruckman v. Bergholtz, 37 N. J. L. 437; Porter v. Woodruffs 36 N. J. Eq. 174.

      Mr. Isaac N. Phillips, and Mr. James S. Ewing, for the appellees :
    The sale to Beard was not colorable, and his name was not used for the purpose of deceiving appellants, and there was no actual fraud perpetrated or attempted.
    But even if Sanborn, as agent, failed in his duty to his principals, and had reported ever so falsely as to the value of the property, that could not affect the purchaser having no knowledge of the agent’s bad faith.
    The purchase by the agent’s wife is not a purchase by him. A wife may contract even with her husband. Thomas v. Mueller, 106 Ill. 36.
   Mr. Justice Scholfield

delivered the opinion of the Court:

George E. Tyler and Edwin S. Tyler, as executors of the last will and testament of Frederick Tyler, deceased, were the owners of certain lots in the village of Chenoa, in McLean county. George F. Tyler resided in Philadelphia, Pennsyl- • vania, and Edwin S. Tyler resided in Hartford, Connecticut. They employed O. D. Sanborn, who resided in Chenoa, to take charge of the property, rent it, and procure a purchaser, for it. He was to obtain offers to purchase, - and report to -them, leaving them to accept or decline the offers, as their • judgments should direct. After some futile efforts in this' way, Boyal E. Beard proposed to pay $1000 for the property, ' and take it as it was, they removing the incumbrance occasioned by a tax sale made before that time, then supposed to he upon it. Sanborn reported this offer to the Tylers, and they accepted it, and forwarded to Sanborn a deed of the property. When Sanborn received the deed, he notified Beard of the fact, and that he was ready to deliver it. What then took place is thus narrated by the several witnesses:

Sanborn says: “I notified Mr. Beard that the deed was ready for him, and he said he was sorry,—that he hoped they

would not accept it. I said I hated to have him. back out on the property, and would like to complete the trade as we had started, and I did not want to return any more papers; that they had found fault with the others, and they would begin to think that it was all boy’s play out here, and too much of that returning papers, and he finally said he would let me know that evening whether he would take it or not. That evening he came in and said he did not want the property, and did not want to take it. I had no written contract with him, and he had paid nothing, and I still had possession of the deed when he told me he did not want the property. When I was at home that evening, I was telling my wife tha,t I was afraid I was going to have trouble to sell that property; that Beard had come in, and did not want it, and I was feeling that my labors had all been in vain, and she spoke up and said, if Beard wanted to sell it for what he gave for it, she would buy and take it off his hands. He said he would let her have it at what he gave for it if she would take it. Mr. Beard, the next day, I think, brought his wife in, and they executed a deed to my wife, and my wife paid the money. Beard never paid me any money. He never furnished any of the money. I presume I had a talk with my wife about it before that evening. She knew the price I was selling to Bales for, and knew that I was acting for eastern parties. I told her I thought she did not want to buy the property. I did not tell her what I thought it was worth. I was just eating supper, and told her he was going to back out, and she said she would take it at that price, •and I opposed buying it, and she insisted on buying. I never reported any of these facts to the Tylers. Before this time I had never expressed any opinion to my wife as to what I thought the property was worth. I had been married about three years, and was post-master. My wife was in no business, but had some means. It was invested in notes and certificates of deposit. I looked after making investments and buying notes for her, after consulting with her. No one else did any business for her.” On cross-examination he said, among other things: “At the time of the purchase of this property my wife had about $3500, but I had no means.” And again, speaking of Beard’s refusal to take the property, he repeated: “I then went home, and had this talk with Mrs. Sanborn—told her I thought the sale would go up, and she said she would take the property. She was able to do so, and bought it against my objection. Up to that time she had been loaning her money. Beard came in again that evening, and I told him what my wife had said about it, and he said he would make a deed to her, and he did so the next day. I took the deeds to Bloomington, here, and had them recorded, as an accommodation to my wife and Mr. Beard. She paid the money and I sent it to Mr. Tyler. I have no interest, either absolute or conditional, in any shape or form, in the property, except my dower.”

Frances C. Sanborn said: “When he (her husband, O. D. Sanborn,) reported to me that Beard probably would not take the property, I said, ‘I will take it,—that is, if Mr. Beard will sell it to me for the same price he was to give the Tylers/ He said I did not want it, and I said I wanted to put my money into something solid, and he further objected, and told me of the cracks in the walls, and the disrepute it was in, and I still said I thought it was very cheap, and that I wanted to take it. It was an impulsive conversation on my part. I never had thought of it before. I told him to tell Mr. Beard I would take it. I don’t remember when the next conversation was. It was some time before I paid for it. I paid Mr. Sanborn. I remember making up the money to pay him, but don’t remember what the amounts were made up from. That was when Mr. Sanborn had completed his arrangements, so he could send the purchase money. It was not the same day I had the other talk. I should think it was some weeks. The deed was made and delivered to Beard, and from Beard to me, without any money having been paid to anybody. I don’t know how the money was sent to Mr. Tyler, nor where it was gotten to send to him. The same evening Mr. Sanborn told me about the property,—that Beard would not take it,— he told me I could have it. At that time Mr. Sanborn had charge of my business affairs, but I advised with no one about buying this property. ” On cross-examination, she again said : “He (Sanborn) said Mr. Beard would sell it to me just as he had bought it, if I would take it off his hands. We then talked it over, and I made up my mind that I still wanted it, and he said to me that if I was bound to have it, he would tell Mr. Beard to-morrow, and have the deeds made. There was no agreement or understanding between Mr. Beard and myself, that it was a purchase for me, or that he was to have any interest in it. Prior to the time I have spoken of, there was no understanding that the property should be sold to Beard, and by Beard to me.”

Beard said, after speaking of his offer to buy, his ability to pay, etc.: “I offered him $1000 cash. Several weeks after, he came to me and informed me that my offer had been accepted. I told him, that upon considering the matter I had decided not to take the property. He urged me to take it, and I told him I would consider the matter, and call at his post-office that evening. I called on him that evening, and told him I had decided not to take it, and he told me his wife, Prances C. Sanborn, would take the property if I would deed it to her without expense to her, and I did so. I never paid anything for those lots, and never received any money or anything for them.”

Evidence was introduced tending to show that the lots were, at the time these deeds were made, worth much more than $1000, and there was, on the other hand, other evidence introduced tending to rebut that. Perhaps a fair deduction from the evidence is, that the lots were generally estimated as worth more than $1000, but that all real estate, and especially in Chenoa, was, at that time, difficult to sell, and that it is not clear that any person was then ready to pay, in cash, more than $1000 for these lots; but in the view that we shall take of the ease, it may be admitted that there was not such inadequacy between the price paid and the actual value of the lots, as, of itself, to raise a presumption of a fraudulent intent, j

The bill asks to have the deeds set aside as fraudulent as against the rights of the Tylers. The decree dismissed the bill at the complainants’ costs. If, from the allegations in the bill and the facts proved, the transaction is one deemed fraudulent in law, it can, of course, be of no consequence that the allegations of fraud in fact are not proved. If any alleged ground of relief is proved by the evidence, the decree below is erroneous, and must be reversed.

The evidence quoted sivpva can leave no doubt on the mind as to the real character of the transaction. It was, in effect, a sale and conveyance to Frances 0. Sanborn, by her husband, O. D. Sanborn, as the agent of the Tylers, without their knowledge. The sale to Beard was not consummated. He refused to take the property, but became an agent, in fact, for FraPces C. Sanborn, whereby she was enabled to obtain the legal title. In equity, the execution of the deed by Beard to her, and the delivery thereafter of both deeds to her, was but the execution and delivery of a deed to her by the Tylers, without their knowledge.

Admitting that the price paid for the property was not grossly inadequate, and that it was one with which, if it had, in good faith, come from Beard, the Tylers would have been satisfied, the question is still left whether the fact that the purchase was made by the wife of their agent, without their knowledge, of itself, alone, renders the deeds voidable, at their election.

The doctrine is familiar, and has been often recognized by this court, that an agent can not, either directly or indirectly, have an interest in the sale of the property of his principal which is within the scope of his agency, without the consent of his principal, freely given, after full knowledge of every matter known to the agent which might affect the principal. (Coat v. Coat, 63 Ill. 74; Ebelmesser v. Ebelmesser, 99 id. 548; Zeigler v. Hughes, 55 id. 288; Hughes v. Washington, 72 id. 85.) It is of no consequence, in such ease, that no fraud was actually intended, or that no advantage was, in fact, derived from the transaction by the agent. Kerr on Fraud and Mistake, (Bump’s ed.) 173, 174; Perry on Trusts, sec. 206; Story’s Eq. see. 315; Bispham’s Eq. (2d ed.) p. 299, see. 238. The rule is not merely remedial of wrong actually committed,—it is intended to be preventive of wrong. Public policy requires, as was tersely and forcibly said by the Chief Justice in Staats v. Bergen, 2 C. E. Green, 554, that “a trustee may not put himself in a position, in which, to be honest, must he a strain on him.” An agent may undoubtedly buy of his principal, or have an interest in the sale of property belonging to his principal ; but in such case the burden is upon the agent to show that the principal had knowledge, not only of the fact that the agent was buying or interested, but also of every material fact known to the agent which might affect the principal, and that, having such knowledge, he freely consented to the transaction. Porter v. Woodruff, 36 N. J. Eq. 174; Dunne v. English, (L. R. 18 Eq. Cases, 524,) 10 Eng. Rep. (Moake’s notes,) 837. See, also, notes to Fox v. Mackreth, Pitt v. Mackreth, 1 L. C. in Eq. (Hare & Wall, notes,) 3d Am. ed. pp. 209, 210, et seq id. p. 220. The rule is equally applicable to cases where the . agent is empowered to sell, as in the present case, at a stated price, as where his authority is to sell, generally. 1 Am. & Eng. Encyclopedia of Law, p. 376, and cases cited; Porter v. Woodruff, 36 N. J. Eq. 174; Ruckmam, v. Bergholtz, 37 N. J. L. 437; Peckham Iron Co. v. Harper, 41 Ohio St. 108.

It is plain, then, that under the authority to deliver the deed to Beard for the $1000, no authority was conferred to use Beard as a mere agent or trustee to convey the title to Sanborn or to some one else, so that he would have an interest in it, merely because the Tylers would thereby receive the same money they would have received had the deed been delivered to Beard. The Tylers are allowed to treat the conveyance as void, at their election, not because they have been injured, but because the law will not allow their agent, Sanborn, to •occupy a position in which he might be tempted to betray his trust. (See cases cited supra, and notes to Fox v. Mackreth and Pitt v. Mackreth, supra, at p. 211.) When Beard declined to take the property, the Tylers were entitled to know that Sanborn had concluded to let his wife take it, unless, indeed, it •can be held that the conveyance to her was as much a matter •of indifference to him, in a legal sense, as if it had been to ra stranger,—and that is, in effect, the contention of counsel for appellees.

Such a sale, at common law, would clearly have been voidable, both because the wife, there, had no independent power to contract, and because the husband would have taken an •estate during coverture in the property. See 1 Blackstone’s •Com. (Sharswood’s ed.) p. 441, *442; Reeve’s Domestic Relations, (2d ed.) 98, *99; and also id. 28. Notwithstanding that our statute has so far changed the common law that the wife can now contract with the husband, and has abolished Ms estate during coverture, it has not denied to each all interest in the property of the other. The husband is still the head of the family, and the expenses of the family and of the .«education of the children are, by section 15 of the statute in relation to “Husband and wife,” charged upon the property of "both husband and wife, or of either of them, in favor of creditors. (Rev. Stat. 1874, p. 577.) Upon the death of the wife, intestate, without children surviving, the husband inherits one-half of her real estate. (Rev. Stat. 1874. p. 39, sec. 1.) And, in any event, upon her death he is entitled to dower in her real estate. Hence the husband still has a pecuniary interest, greater or less, as circumstances may vary, in all the real estate of wMch Ms wife may be owner during coverture. There is, moreover, apart from this pecuniary interest, an intimacy of relation and affection between husband and wife, and of mutual influence of the one upon the other for their common welfare and happiness, that is absolutely inconsistent with the idea that the husband can occupy a disinterested position, as between his wife and a stranger, in a business transaction. He may, by reason of his great integrity, be just in such a "transaction; but unless his marital relations be perverted, he can not feel disinterested,—and it is precisely because of this feeling of interest that the law forbids that he shall act for himself in a transaction with his principal. It is believed to be within general observation and experience, that he who will violate a trust for his own pecuniary profit, will not hesitate to do it, under like circumstances, for the pecuniary profit of Ids wife.

In our opinion, the policy of the law equally prohibits the wife of the agent, as it does the agent himself, from taking title to the property which is the subject of his agency, without the knowledge and express consent of the principal. The wife is here shown to have known the relation of her husband to the Tylers in respect to this property, and all the facts in regard to the transaction with Beard. She is therefore charged with knowing that she could not become the purchaser without letting the Tylers know it, and the burden is on her to show that they did know it.

The Tylers are, in our opinion, entitled to have these conveyances cancelled, upon returning to Frances G. Sanborn what they have received, with accruing interest; and as against this, they are entitled to a deduction of the reasonable value •of the rents and profits, above and beyond the amount paid for taxes and necessary repairs.

The decree below is reversed, and the cause remanded to the circuit court, with directions to there enter a decree in •conformity with this opinion.

onDecree reversed.

Mr. Justice Bailey,

dissenting:

I am unable to concur with the majority of the court in this case. The evidence shows, and that too without any controversy, that Mrs. Sanborn, learning from her husband that Beard had declined to take the property in question at the-price previously agreed upon by him, and at the price which the owners had agreed to and were willing to take, offered to become the purchaser; that such offer was made by her ivholly upon her own motion, and not at the suggestion but against the advice and remonstrance of her husband; that she did thereupon become the purchaser of the property, and paid for it out of her own separate estate, and that in the whole transaction, the business was conducted, so far as she was concerned, by herself, her husband in no way assuming to act or in fact acting as her agent.

It is assumed in the opinion of the majority of the court and I think correctly, that no fraud in fact is shown, the decision being based wholly upon the assumption that there was-such fraud in law as must necessarily invalidate the transaction. I make no question as to the soundness of the doctrine-that an agent employed by another to sell his property can not, either directly or indirectly, become the purchaser, and that if he does so, his principal may interpose and avoid the sale. But that is not this case. The purchaser here was not-the agent, but another person who was suijwris, and capable of acquiring, owning and controlling her separate property wholly independent of any control or interference on the part-of her husband.

The opinion treats the purchase by the wife as being the-same in legal effect as though made by the husband. This-doubtless would be the case if the wife were still laboring under the disabilities imposed by the rules of the common law. But . our statute has so far emancipated her from those disabilities-as to place her in all essential respects, in the same legal position, so far as property rights are concerned, as though she-were a feme sole. Her separate estate is no longer subject to either the rights or the control which, at common law, resulted to the husband from the marital relation. She now has the same control over her estate that the husband has over his. •She has the same legal power to acquire property, to buy and sell, or engage in business, she would have if she were unmarried. In respect to property rights and business transactions she is, in contemplation of law, a stranger to her husband, and may act independently of him, or assume a position adverse to his. I can not therefore yield assent to the proposition that, as the law now stands, the wife of an agent must, as a matter of law, be held to be subject to the same legal incapacity to become the purchaser of the property which is the subject matter of the agency as is the agent himself. Whether a purchase by her is to be treated as fraudulent, and therefore voidable at the instance of the vendor, must, in my opinion, depend upon the circumstances, and such purchase therefore presents a question of fraud in fact and not of fraud in. law.

I do not question that the relation between the agent and purchaser, whether as husband and wife or otherwise, is a circumstance to be considered in connection with other evidence, whenever fraud in fact is charged. Slighter evidence will be required to raise an inference of fraud where the agent and purchaser sustain to each other some near relation, such as parent and child, brother and brother, or husband and wife, but such inference can not arise from the mere relation alone. In all such cases fraud in fact must be charged and proved, and the relation between the parties can be considered only as bearing upon the measure of proof required to sustain the charge.

As no fraud in fact is proved in this case, I am of the opinion that the decree of the Circuit Court should be affirmed.

Mr. Chief Justice Graio: I concur in the views expressed by Mr. Justice Bailey.


author: Mr. Justice Shops

text:
    James Brown et al. v. Miner, Frost & Hubbard.

      Filed at Springfield

      April 5, 1889.

    1. Ohawoebt—trial by jury—upon what issues. The statute of this State requires the submission to a jury of an issue arising upon the contest of a will on the ground of the alleged insanity of the testator, or of his want of mental capacity. The statute seems to be imperative in this respect.
    2. Where the question of the insanity of a defendant at the time of the execution of a note and mortgage is properly presented by the pleadings and by affidavit, the better practice is to submit that issue to a jury, if the chancellor is asked so to do. But under the statute, (Bev. Stat. chap. 22, sec. 40,) the duty of the court to submit such issue to a jury is discretionary, and not imperative.
    3. Same—recitalsin decree—how far conclusive. Where a decree in a case which was referred to the master to take and report the evidence, recites that the cause was heard on the bill, answers, replication, and also the proof taken and reported by the master, such recital can not be contradicted or overcome by the clerk’s certificate that there is no report of the master on the files.
    4. And where a decree recites the hearing of testimony in open court, and finds, from the evidence, the facts necessary to support the decree rendered, in the absence of a certificate of the evidence heard it will be presumed that there was sufficient evidence to warrant and sustain such finding.
    5. Same—relief under the general prayer. A bill to foreclose a mortgage before due, by its terms, averred the failure of the mortgagor to pay the taxes then due on the land, as one of the grounds for electing to hold the whole debt due. The bill set out the mortgage as a part thereof, and it showed a right to declare the whole debt due for a failure to pay interest, or taxes on the premises: Feld, that this was sufficient, under the general prayer for relief, to authorize a decree for the taxes paid by the mortgagee pendente lite, to protect the title to the mortgaged premises.
    6. So where a mortgage provides that in case of foreclosure, and sale of the mortgaged premises, the mortgagee shall be paid out of the proceeds of the sale the expense of advertising, etc., together with moneys advanced for taxes, assessm ents and other liens, etc., and the mortgagee pays such taxes subsequently to the filing of his bill to foreclose, in which the duty of the mortgagor to pay the taxes, and his failure to do so, are alleged, the complainant may be allowed, by decree, the amount of such advance, under the general prayer for relief, without filing a supplemental bill.
    7. Assignment of ebbob—by whom. One party can not assign error for another who makes no complaint. So on bill to foreclose a mortgage, the mortgagor can not assign for error a decree by default against a tenant, taken upon an insufficient service of such tenant, who failed to join in the writ of error.
    8. If, however, the co-defendant has a joint interest with those complaining, the rule is different, for in such case a defendant has a right to insist upon a decree which settles the rights of all the parties concerned.
    Writ of Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of Scott county; the Hon. Cyrus Epler, Judge, presiding.
    April 6, 1883, James Brown and wife, Margaret, executed a note to defendants in error for $13,500, due in five years,„ with seven per cent interest, payable annually, and a mortgage to secure the same. The mortgage provided, that on default of the mortgagors to pay the annual interest, or to pay the taxes assessed on the land, the whole debt might be declared due, at the option of the holder, and out of the proceeds of sale, on foreclosure of the mortgage, there be paid, first, the expense of advertising, selling and conveying the mortgaged premises, together with $100 solicitor’s fees, and all moneys advanced for taxes, assessments and other liens, and then the principal of the note, whether due or not, together with the interest accrued thereon. On April 15, 1884, defendants in error filed their bill to foreclose said mortgage, averring a failure to pay the annual interest before then due, and the taxes for the year 1883, and that for that reason they had elected to declare the whole of the debt evidenced by said note due. The bill prayed that an account be taken of the sum due, and a decree be entered for its payment by a short day, with $100 solicitor’s fees, and in default thereof, for foreclosure and sale. All the defendants were defaulted except James and Margaret- Brown, the plaintiffs in error, who appeared, and the latter filed an affidavit, to the effect that the said James Brown, before and at the time of the execution of the note and mortgage, was, and still is, non compos mentis, and asking for the appointment of a guardian acl litem for him, which was done. She also answered, under oath, admitting the execution of a note -and mortgage, but averring that the consideration thereof was mainly indebtedness due complainant from the firm of August & Brown, of which her husband had been a member; that upon its dissolution, its books of account, by agreement of complainant and said firm, were left with said August for settlement and collection; that said August collected money enough out of the assets of said firm to liquidate said indebtedness to complainants, and which was deposited in the bank of complainants- to be credited on such indebtedness, but that complainants, in violation of their agreement, and without the knowledge of Brown, permitted August to withdraw it for other uses, and that the residue of said consideration was money loaned by complainants to said Brown with notice of his mental incapacity, etc. The guardian ad litem also answered, requiring strict proof. Replication was filed, and the transcript of the record shows, beside the papers mentioned, and the process, and the terms thereof, only the final decree, entered in the cause November 21, 1884, which purports to have been made on a hearing upon the pleadings and “the proofs taken and reported by the master in chancery, ” and “testimony heard in open court.”
    The decree recites the default of the other defendants, the appointment of a guardian ad litem for James Brown, the entry of a rule to answer, and an order that “on notice of filing such answer and replication thereto, the cause stands referred to the master to take proof;” that the court found the allegations of the bill to be true, and, among other things, that the taxes on the mortgaged premises for the year 1883 were past due ■before the filing of the bill; that the mortgagors had neglected to pay the same; that complainants had paid the taxes on ■said premises,—$182.05; that defendant James M. Brown is ■in possession of a portion of said premises as tenant of Ellen and Margaret Brown, who are also defendants, under a lease which will expire March 1,1885; that at the time of the execution of said note and mortgage, the defendant James Brown was of sound mind, and qualified to transact, business; and ■that the amount due on the note, after deducting payments and credits, was $12,636.98. The decree, after such finding, required the mortgagors to pay that sum, with six per cent interest, within twenty days of the date of such decree, together with $182.05 for taxes advanced by complainants, with costs, in which should be included $100 for solicitor’s fees, ■and in default thereof, ordering a sale in the usual form..
    The defendants, James and Margaret Brown, prosecuted a writ of error from the Appellate Court for the Third District, to reverse this decree, and assigned errors in that court. The Appellate Court affirmed the decree, and the same defendants below prosecute this writ of error.
    Messrs. Gallon & Thompson, for the plaintiffs in error:
    The record fails to show that the master ever'made any report of the evidence. If it be claimed that the recitals in the decree are conclusive on this point, we say they would be were they not squarely contradicted by the whole record. Hards v. Burton, 79 Ill. 504; Wilhite v. Pearce, 47 id. 413; Boston v. Nichols, id. 353; 2 Daniell’s Ch. (3d ed.) p. 1308.
    The bill nowhere alleges that defendants in error paid any taxes on the lands, nor does it pray any relief on that question. On the contrary, it alleges “that said taxes were then wholly unpaid,” and only prays for the amount due on the note and mortgage, and the solicitor’s fee of $100. The findings of the court follow the allegations in the bill. The court expressly finds that all the taxes for 1883 “still remain due and wholly unpaid.” Now, upon the allegations in the bill and the express findings of the court, how was it possible to find, in the same breath, as it were, “that complainants had paid as taxes on said premises the sum of $182.55?” This is the first intimation, in any of the pleadings or'proceedings in this case, of any claim for taxes paid. When were they paid? Not before the bill was filed, for it expressly alleges that said taxes-had then long been due, and were then “wholly unpaid.” They could not have been paid when the cause began to be heard, because the court expressly finds that they “still remain due and unpaid.” If they were paid, it must have been after that finding. Clearly, if defendants in error did pay any taxes after-filing their bill, they should have set up the fact in a supplemental bill. This they did not do. We submit that it was palpable error to grant relief not prayed for in the bill, nor justified by the allegations in the bill. The general prayer does not cure the error, in the absence of appropriate allegations. “The decree must conform to the prayer of the bill.” Hall v. Towne, 45 Ill. 493; Ward v. Enders, 29 id. 519; DeLeuw v. Neely, 71 id. 473; Dodge v. Wright, 48 id. 382; Gunnell v. Cockerill, 84 id. 319; Kellogg v. Moore, 97 id. 282; Parkhurst v. Race, 100 id. 558.
    The issue as to the insanity of James Brown should have been tried by a jury. Myatt v. Walker, 44 Ill. 485; Panky v. Raum, 51 id. 88; Hahn v. Huber, 83 id. 243.
    The service of summons on James M. Brown was not in-compliance with the statute, as appears by the return, and no default could properly be taken against him. The return is; “I have duly served the within named James M. Brown, etc., by leaving a true copy thereof,” etc. Cost v. Rose, 17 Ill. 276.
    Mr. J. M. Biggs, Mr. J. A. Warren, and Mr. T. H. Devine, for the defendants in error:
    James M. Brown not having joined in prosecuting the writ, no error can be assigned on his behalf, nor can plaintiffs in error assign for error any action of the chancellor not injuriously affecting their interests. Kennedy v. Kennedy, 66 Ill. 196; Havighorst v. Lindberg, 67 id. 463; Smith v. Hickman, 68 id. 315; Clark v. Marfield, 77 id. 262; Richards v. Greene, 78 id. 527.
    The mortgage set out in full in the original hill provides for payment of taxes out of the proceeds of the mortgaged property. The hill alleges the taxes were wholly unpaid. There was a prayer for general relief, under which the relief as to taxes might he properly granted. DeLeuw v. Neely, 71 Ill. 473.
    This is an ordinary cause in chancery for foreclosure of a-mortgage, in which it is in the discretion of the chancellor to-take the verdict of the jury, or not. Rev. Stat. 1885, Chancery Practice, sec. 40; Meeker v. Meeker, 75 Ill. 267; Long v. Long, 107 id. 211.
    The only exception to this rule of discretion, in ordinary chancery cases, is in the case of an heir-at-law, a rector, or a. vicar. Daniell’s Ch. Pr. (ed. of 1871,) p. 1075.
    The verdict of a jury should only he taken where the evidence is voluminous, the facts complicated, and the question, doubtful. Milk v. Moore, 39 Ill. 588; Dowden v. Wilson, 71 id. 486; Fanning v. Russell, 94 id. 390.
    The chancellor having recited in the decree that the master had taken and reported the testimony, and that report not appearing on the files, it will be deemed to have been lost, Hess v. Voss, 52 Ill. 477.
    Where the evidence in a chancery cause is not otherwise-preserved, the recitals and findings in the decree are conclusive as to the facts. Sheen v. Hogan, 86 Ill. 19; McIntosh v. Saunders, 68 id. 130; Morgan v. Corlies, 81 id. 75; Davis v. Christian Union, 100 id. 318; Groenendyke v. Coffeen, 109 id. 334; Hannas v. Hannas, 110 id. 64.
    If plaintiffs in error desired to question the recitals or finding of facts in the decree, it was their duty to cause all the ■evidence to be preserved. McIntosh v. Saunders, 68 Ill. 130; Morgan v. Corlies, 81 id. 75; Groenendyke v. Coffeen, 109 id. 334.
   Mr. Justice Shops

delivered the opinion of the Court:

It is well settled that one party can not assign error for another who makes no complaint. The two mortgagors were properly served in the suit to foreclose the mortgage, and appeared therein. James M. Brown, it appears, was a tenant of the premises, only, whose term had substantially expired. If it was conceded that the service upon him was insufficient ■to give the court jurisdiction of his person, and that it was therefore error to enter a decree pro confesso as to him, he alone ■could avail of that error. If he had a joint interest with the plaintiffs in error, the rule would be different, for in such case .a defendant has the right to insist upon a decree which settles the rights of all the parties concerned. (See Enos v. Capps, 12 Ill. 257.) It is therefore not necessary to determine whether ■there was proper service on James M. Brown or not. He is -content with the decree rendered, and any error as to him will in no manner injuriously affect plaintiffs in error here. Clark v. Marfield, 77 Ill. 262; Hannas v. Hannas, 110 id. 53; Havighorst v. Lindberg, 67 id. 468; Kennedy v. Kennedy, 66 id. 196; Smith v. Hickman, 68 id. 314; Richards v. Greene, 78 id. 527.

Nor do we think there was error in the failure of the court to send an issue as to the mental capacity of James Brown, -one of the mortgagors, to he tried by a jury. It does not appear that the court was requested to direct the issue to be thus tried. The English chancery practice made the reference of ¡an issue of fact to a jury imperative only in cases of an heir-at-law, a rector or a vicar. (Daniell’s Ch. Pr. 1075.) The statutes of this State require the submission to a jury of an issue arising upon the contest of a will on the ground of insanity of the testator, or of his want of mental capacity. The statute seems to be imperative in this respect. Rev. Stat. chap. 148, see. 7; Meeker v. Meeker, 75 Ill. 260; Long v. Long, 107 id. 211.

In Myatt et al. v. Walker et al. 44 Ill. 485, this court said: “We have carefully examined the testimony in the record. We find it voluminous, doubtful in some respects, and largely conflicting. When, however, taken altogether, we think it fails to sustain the decree. In. the absence of all knowledge of the manner of the witnesses in giving their testimony, we feel some doubt as to where the true weight of evidence really lies. In' such cases it is eminently proper that an issue should be framed, and tried by a jury. Such a practice has always been fully sanctioned, and we think it more satisfactory, and better cal- ‘ culated to promote justice, and the practice should be adopted by the court below in all cases involving questions of insanity.” • In Hahn v. Huber et al. 83 Ill. 244, this court held, that on a bill to foreclose a mortgage, a motion to submit the question' of the insanity of a mortgagor to a jury, without any affidavit of the fact of his insanity, was properly overruled.

It would seem from the two cases cited, where the question of insanity of the defendant is properly presented by the pleadings and by affidavit, that the better practice is to submit the question of sanity to a jury. It by no means follows, however, that the court is bound, upon its own motion, to submit such an issue, or that it is error not to make such submission. The statute (sec. 40, chap. 22,) provides, that “the court may, in its discretion, direct an issue or issues to be tried by a jury, whenever it shall be judged necessary, in any cause in equity pending therein.” The implication necessarily is, that the submission of the question of fact .to a jury, in chancery causes, where not otherwise provided, is left to the sound discretion ’ of the chancellor. In all cases where, by the course of the chancery practice or by the statute, the issue is required to be submitted to a jury as a matter of course, no such discretion exists. It is, however, evident, that plaintiffs in error are in no condition to complain of any ruling of the trial court in this respect. That court was not called upon to make a ruling, nor was the question presented for its consideration. To have raised the question they should have made the motion for the submission of the issue in apt time in the trial court. But, as we have said, the duty of the court to submit an issue to be tried by a jury, was, in the case under consideration, discretionary, not imperative. See Milk et al. v. Moore, 39 Ill. 584; Dowden et al. v. Wilson, 71 id. 485; Fanning et al. v. Russell et al. 94 id. 386.

It is next claimed, that the cause was referred to the master to take and report the evidence, and that a decree was entered without any report having been made by the master. The decree, as set forth in the transcript, recites that the cause was heard on the bill, answers, replication, and “also the proof taken and reported by the master in chancery of this court, and testimony heard in open court.” This recital in the decree can not be contradicted or overcome by the clerk’s certificate that there is no report of the master on the files. The decree recites that James Brown was of sound mind when he executed the note and mortgage, and finds that fact, together with other facts on which it is based. The facts thus found in the decree justify its rendition. In the absence of a bill of exceptions or certificate of evidence, it will be presumed that the findings were warranted by the proofs heard by the court. In the absence of a certificate preserving all the evidence heard by the trial court, it must be presumed that there was sufficient evidence to warrant and sustain the finding. Hannas v. Hannas, supra; Groenendyke v. Coffeen, 109 Ill. 334; Sheen v. Hogan, 86 id. 16; Davis v. American and Foreign Christian Union, 100 id. 313; Morgan v. Corlies, 81 id. 72; McIntosh v. Saunders, 68 id. 128; Rhoades v. Rhoades, 88 id. 139; Walkers v. Cary, 53 id. 470; Allen v. Le Moyne, 102 id. 25; Mauck v. Mauck, 54 id. 281; Walker v. Abt, 83 id. 226; Corbus v. Teed, 69 id. 205.

It is urged that the court erred in allowing, by its decree, the taxes advanced by complainants, because, as it is said, no foundation was laid therefor in the allegations or prayer of the bill. It is unquestionably true that the decree must be in conformity with and supported by the allegations and prayer of the bill. It is shown that when the bill was filed, complainants had not paid the taxes, although it was averred that the taxes were past due and unpaid by the defendants, and that was made, as it is alleged, one of the grounds for electing to declare the whole sum evidenced by the note to be due. Complainants not having then paid the taxes, it would follow, that there would be no prayer for their recovery by them. However, the bill sets out the mortgage as a part thereof, and alleges, that under its provisions the taxes were to be paid by the defendants, and their default in that regard. This we think was sufficient, under the general prayer for relief, to authorize the entry of a decree for the taxes paid by .the mortgagees pendente lite, to protect the title to the property mortgaged.

Where a mortgage provides, that in case of foreclosure and sale of the mortgaged premises the mortgagees shall be paid out of the proceeds of the sale the expense of advertising, etc., together with moneys advanced for taxes, assessments, and other liens, etc., and the mortgagee pays such taxes subsequently to the filing of his bill to foreclose, in which the duty of the mortgagor to pay the taxes, and his failure to do so, are alleged, the complainant may be allowed, by decree, the amount of such advances, under the general prayer for relief, and without filing a supplemental bill.

Finding no substantial error of which the plaintiffs in error can complain, the judgment of the Appellate Court will be affirmed.

Judgment affirmed.