text:
    Quincy W. Wellington v. Harry C. Heermans et al.

      Filed at Ottawa May 19, 1884.

    1. Pasty—to hill to foreclose mortgage. The holder of a bond and mortgage, claiming to own the same by a gift of the mortgagee, though he may have pledged the same to secure a loan, is a proper party in a bill by another, claiming adversely, to foreclose the mortgage, and if not made a party to the bill, will not be concluded by the decree of foreclosure, and his assignee may maintain a bill to impeach the decree on the ground that the party so foreclosing the mortgage did not own the bond and mortgage, and had no equitable title to the same.

      f

    2. Same—unknown persons as parties—designating known parties as such, fraudulently. Section 7 of the Chancery act, which provides that in suits in chancery and suits to obtain title to lands, if there be persons interested in the same whose names are unknown, they may be made parties by the name and description of “unknown owners,” must be fairly and reasonably complied with, and not evaded by making a known person a party under such designation. A complainant knowing the parties in interest, and adopting the mode authorized by this provision, is guilty of a fraud on the law and on parties in interest thus described, against which the courts will relieve.
    3. Gift—of bond and mortgage by a party, after the appointment of a receiver. Where the owner of a bond and mortgage, after the appointment of a receiver of his effects in New York, where he resided, gave the same to a relative, and assigned the same, it not appearing that the receiver ever had possession of the same, and the receiver afterwards settled with the court and was discharged, and the donor never revoked the gift after the receiver’s discharge, it was held, that the gift passed a title to the donee, and that it would be presumed the donor ratified the gift after the receiver was discharged.

      4. Decree—who may have same opened within three years. The statute which allows a defendant not served with process, and who fails to appear before decree, to come in within three years and have the decree opened, and be allowed to defend on the merits, applies only to persons made defendants to the bill. One not made a party is not required to adopt such a course, but may file a bill to impeach the decree and establish his rights. Besides, this provision was intended to give an additional remedy, and not to limit or take away those already in existence.
    5. Assignment—to an agent or trustee—change of possession. Where a party made a writing purporting to convey all his real and personal estate to a trustee, for the purpose of sales and collections for the benefit of the maker, the trustee to be paid a commission on all moneys by him received and paid over as directed, and afterwards executed and delivered to another person an assignment of a bond, and mortgage securing the same, and delivered the bond and mortgage to the assignee, and there was no proof that the trustee ever had possession of the same, it was held, that the assignment and delivery passed the beneficial title to the assignee.
    6. Same—of chose in action—change of possession to pass title. The title to chattels or choses in action does not pass by sale or gift, as to creditors or purchasers, unless accompanied by possession, either actual or constructive.
    7. Where a person by a written document granted and conveyed all his estate, real and personal, to a nephew, in trust, to sell his lands and convert his means into money, and to manage the estate for the grantor’s benefit, the proceeds to be paid out and distributed as the grantor might direct, and it appeared that both persons occupied the same office both before and after the making of such writing, and it did not appear that any change in the possession of the grantor’s choses in action was ever made, and the grantor afterwards transferred a bond and mortgage to a grand-nephew, and delivered the same to him as a gift, it was held, that there was no such delivery to the trustee shown as would pass the title to the bond and mortgage as against the donee. If the trustee was not a mere volunteer, but a purchaser, it seems the same strictness of proof of a delivery would not have been required.
    8. Deed—construed, as to whether passing any beneficial title. A deed recited that the grantor, from infirmities and advanced age, deemed it expedient to convey his estate, real and personal, to his nephew, and then granted and conveyed such estate to the latter, with a proviso that the grantee should sell the real estate for the best prices, and lease the same until sold, and collect all debts due the grantor, the avails of said estate to be disposed of, first, to defray the expenses of the trust, fixing the commissions; second, the residue to be paid over to the grantor during his life, or appropriated to his uses under his direction; and thirdly, after his decease the balance to be distributed as the grantor might direct in a supplementary writing: Held, that in equity the grantor was the only beneficiary, and had the absolute right to receive the money arising from the sale of any of his property, to dispose of as he chose, and unless sold by the trustee, the grantor might transfer a bond and mortgage of his to any one he saw fit, and pass the equitable title, especially when the trustee had not reduced the same to his actual possession.
    Appeal from the Appellate Court for the Second District;— heard in that court on writ of error to the Circuit Court of Lake county; the Hon. Charles Kellum, Judge, presiding.
    This was a bill in the nature of a bill of review, filed in the circuit court of Lake county, on March 22, 1878, by the appellant, Quincy W. Wellington, against John Heermans, since deceased, and the other appellees, seeking to review a decree of said circuit court rendered at the March term, 1876, in a case of a bill filed by said Heermans to foreclose a certain mortgage, and asking that appellant be decreed to be the owner of said mortgage, and that he be subrogated to all the rights of said Heermans acquired at a sale which had been made under said decree, and asking, also, by way of alternate relief, that said decree be held null and void, and that the mortgaged premises be again sold, etc.
    On July 15, 1867, Alonzo I. Wynkoop, of Chemung, in the State of New York, executed and delivered his bond to Joseph Fellows, of Corning, in the same State, for $14,045.58, payable in ten equal annual installments, with interest at seven per cent per annum, from January 1, 1867, and on the same day Wynkoop and wife executed and delivered to said Fellows their mortgage upon certain lands in Lake county, in this State," in the bill described, to secure the payment of said bond, which mortgage was recorded in the proper office. On October 10, 1868, Fellows executed and delivered to John Heermans, since deceased, an instrument in the words and figures following, to-wit:
    “Whereas, I, Joseph Fellows, of Corning, in the county of Steuben, and State of New York, from infirmities and advanced age, deem it expedient to convey to my nephew, John Heermans, of Corning, aforesaid, my real and personal estates in the States of New York, Pennsylvania, Michigan, Wisconsin, Indiana, Ohio, Illinois and West Virginia, as trustee, for the purposes hereinafter stated: Now, therefore, I, the said Joseph Fellows, in consideration of the premises, and also of one dollar to me paid by the said John Heermans, the receipt whereof is acknowledged, have sold, and by these presents do grant, release and convey, unto the said John Heermans, his heirs and assigns forever, all my real and personal estates in the several States aforesaid, to have and to hold the same, unto the said John Heermans, his heirs and assigns forever: Provided, always, that the said John Heermans shall sell the said granted lands, by retail, for the best prices that can be got for the same, and convey them in fee simple to purchasers, with covenants of warranty, binding my heirs to warrant and defend the titles to the lands so to be sold and conveyed; and until such lands shall be sold as aforesaid, he shall rent such of them as can be rented, for the best prices that can be got. He shall collect all debts owing to me, and execute deeds, as aforesaid, for all lands now under contract of sale, on payment of the debts owing on them, respectively. The avails of the said real and personal estates shall be paid, distributed and disposed of, as follows: First, to defray the expenses of this trust, to-wit, five per cent commission on all moneys received and paid out, and all necessary and reasonable expenditures and charges in and about the execution of the trust, including local agencies. Secondly, during my life the residue of all moneys received shall be paid over to me, or appropriated to my uses, under my direction. Thirdly, after my decease, and after the payment of all my just and legal debts, and the expenses of the trust, as aforesaid, the residue shall be distributed as directed in a writing supplementary to this deed, to be executed by me hereafter, or in ease such writing shall not be executed, then the said residue shall be distributed to my heirs, according to the laws of the State of New York. I authorize and direct the said John Heermans, in his discretion, to compromise any disputed claims, and also to make abatements in debts where the security is insufficient or doubtful.
    “In witness whereof, I, the said Joseph Fellows, have hereunto set my hand and seal, on this 10th day of October, 1868.
    Joseph Fellows, [l. s.] ”
    On October 15, 1868, Fellows executed and delivered- to Heermans the supplementary writing referred to, in regard to the distribution of his estate after his death. Heermans accepted the trust, and took possession of all the books and papers belonging to the estate, as he testified. The Wynkoop bond and mortgage belonged to the estate, but Heermans admitted that he did not, after the execution of the two instruments above referred to,” see the Wynkoop bond and mortgage.
    On December 28, 1868, Fellows executed an instrument in writing revoking all the powers conferred on said Heermans, and declaring that he revoked both of the aforesaid instruments of writing, and withdrew the same. A copy of this instrument of revocation was served upon Heermans shortly after its date. About this time Fellows took possession of his office, and the books and papers relating to the trust estate, and in 1869 employed Joseph F. Hill, Jr., his grandnephew, as his clerk.
    On January 28, 1869, Fellows filed his bill in the Supreme Court, in Steuben county, New York, asking that the' instruments of October, 1868, be declared a mere power of attorney, revocable by the plaintiff, and that the same be set aside and annulled. The Supreme Court, on a hearing, dismissed this bill, holding that the instruments of October 10 and 15 were valid, etc. Fellows appealed from the decree to the general term of that court, and on January 17, 1870, a receiver was appointed, and an injunction against Heermans was continued. The receiver entered upon his duties January 21, 1870, and employed Hill as his clerk.
    July 9, 1870, Fellows executed and delivered to Joseph F. Hill, Jr., an assignment of the Wynkoop bond and mortgage, which assignment was, July 25, 1870, duly recorded in Lake county, in this State. This was a gift to Hill. On June 28, 1871, and on July 1, 1871, Fellows entered into an agreement with Heermans, and executed an instrument setting aside the former revocation, and abandoned his appeal. On April 29, 1873, Joseph Fellows died.
    On March 5, 1872, Joseph F. Hill, Jr., executed and delivered to his father, Joseph F. Hill, Sr., an assignment of the Wynkoop bond and mortgage, which was recorded in Lake county on March 15, 1872. This was done by Hill, Jr., for his father’s accommodation, and to enable him to borrow some money of George F. Lee. March 22, 1872, Hill, Sr., executed to George F. Lee an assignment of the same bond and mortgage, which was recorded March 25, and a loan made by Lee to Hill, Jr.
    August 30, 1872, Lee filed his bill of foreclosure of the bond and mortgage in the circuit court of Lake county, against Wynkoop and his wife, John Heermans, and others. Lee died February 10, 1874, leaving him surviving Mary H. Lee, his widow, and an only child, and on the 18th of August, 1875, Mrs. Lee, as administratrix of her husband’s estate, assigned the bond and mortgage back to Hill, Jr., which assignment was duly acknowledged and recorded. Wynkoop died shortly after the filing of Lee’s bill, having devised the land to his widow, she being also his executrix. Heermans had the Lee suit dismissed for want of prosecution, and on January 26, 1876, filed his bill in the circuit court of Lake county, against Phebe Wynkoop, the unknown heirs of George F. Lee, deceased, the unknown owners, etc., which bill set forth that Heermans “has no knowledge of the whereabouts of said bond and mortgage, or whether or not they are in existence;
      that he has not seen them since they were taken from his possession by the said Joseph F. Hill, Jr. and Joseph F. Hill.” Heermans, in his answer to Lee’s bill, said: “The complainant, (Lee) in seeking to foreclose the same, is, in fact, acting as the agent and tool of the said Joseph F. Hill, Jr., or the said Joseph F. Hill, or both of them.”
    At the March term, 1876, of the Lake circuit court, the bill filed by Heermans was taken for confessed by all the defendants, and a decree was entered that Heermans was the absolute owner of the Wynkoop bond and mortgage, and that the assignments of the same from Fellows to Hill, Jr., and from Hill, Jr., to Hill, Sr., and from the latter to Lee, were wholly void, and that there was then due and unpaid to Heermans, upon said bond and mortgage, the sum of $23,-123.69, and that said mortgaged premises be sold, etc. On June 19, 1876, the master in chancery sold all of the mortgaged premises to Harry C. Heermans, the son of John Heermans, for the sum of $22,741.67, except one tract sold to one Huddles, which was sold for $995. On September 26, 1(877, the master made his deed to Harry C. Heermans for the land bought by him. Subsequently to that, and at various times, Harry G. Heermans conveyed various parcels of the land to various persons made parties defendant to this suit, none of whom the bill alleges are innocent parties, and none of whom have paid up the alleged consideration.
    March 14, 1882, the death of John Heermans was suggested, and Harry C. Heermans, as his executor, was made a party defendant in his stead. No money was paid at the master’s sale by either Heermans, and it was conceded that Harry C. bid for his father, John Heermans. On January 28, 1878, Joseph F. Hill, Jr., executed and delivered to Wellington an assignment of the Wynkoop bond and mortgage, which was acknowledged on that day, and recorded February 4, 1878, and on March 22, 1878, Wellington filed this bill.

      Mr. Melville W. Fuller, and Mr. Charles L. Easton, for the appellant:
    The instruments of October 10 and 15, 1868, did not vest the title in Heermans, and were revocable. They, during the maker’s life, created only an agency. Heermans v. Ellsworth, 3 Hun, 473; Heermans v. Robertson, 64 N. Y. 332; Heermans v. Burt, 78 id. 259; Hill v. Heermans, 6 Hun, 661; Young v. Heermans, 5 id. 121.
    The claim to remuneration was all that remained to Heermans after the revocation. Story on Agency, sec. 329.
    Fellows, on December 28, 1868, so far as he could, revoked the instrument of October 10, 1868. Gibson v. Rees, 50 Ill. 383; Wadhams v. Gay, 73 id. 415.
    There is no evidence that the bond and mortgage were ever delivered to Heermans under the deed, but had they been delivered, the legal title would not have passed. Olds v. Cummings, 31 Ill. 188; White v. Sutherland, 64 id. 186; Medley v. Elliott, 62 id. 532; Westfall v. Jones, 23 Barb. 10.
    The bond could be assigned at law only by indorsement thereon. Olds v. Cummings, 31 Ill. 188.
    Hill was a necessary party to the foreclosure suit. McGraw v. Bayard, 96 Ill. 146; Lusk v. Thatcher, 102 Ill. 60; Scanlan v. Cobb, 85 id. 296.
    No question, here, arises between bona fide purchasers. If Hill was entitled to the bond, Wellington is. The assignment to him was no fraud on Heermans, who is a volunteer.
    Mr. F. E. Clarke, and Messrs. Cook & Upton, for the appellees:
    Appellant’s only remedy was to appear and have the decree opened" within three years. Rev. Stat. 1874, chap. 22, sec. 19; Martin v. Gilmore, 72 Ill. 193.
    That a bill of review lies only to a final decree, see 2 Barb. Ch. Pr. 93; Mackey v. Bell, 2 Munf. 523; Elzey v. Lane, 2 Hen. & Munf. 589; Lyons v. Robbins, 46 Ill. 276.

      To impeach a decree for fraud, it must appear that the fraudulent acts and practices charged, operated to procure the decree. Boyden v. Reed, 55 Ill. 464.
    The assignee of a non-negotiable chose in action must abide by the title of his assignor. He takes subject to all existing equities,—not only as between the original parties, but as to third parties and strangers; and that even when the purchase is in good faith, and without notice of prior equities. Bush v. Lathrop, 22 N. Y. 535; Schaffer v. Riley, 50 id. 61; Trustees of Union College v. Wheeler, 61 id. 88; Fortier v. Darst, 31 Ill. 212; Mansfield v. Hoagland, 46 id. 359.
    All decrees with respect to unknown persons are equally binding on them as if made parties by name. Rev. Stat. 1874, chap. 22, sec. 43; Pile v. McBratney, 15 Ill. 314; Thornton v. Houtze, 91 id. 199.
   Mr. Justice Walker

delivered the opinion of the Court:

It is first urged by appellant, that in the suit by Heermans to foreclose the mortgage, Hill, who claimed to own it, was not made a party, and is therefore not bound by the decree, and may impeach it because Heermans did not own the mortgage,—that Hill was an indispensable party, and he has the right to. foreclose the mortgage, precisely as though no decree had been rendered. But in answer to this position it is urged that Hill was made a party by the language, “unknown owners and others.” The seventh section of the Chancery act provides : “In all suits in chancery, and suits to obtain title to lands, in any of the courts in this State, if there be persons interested in the same whose names are unknown, it shall be lawful to make such persons parties to such suits or proceedings by the name and description of unknown owners, or unknown heirs or devisees of any deceased person who may have been interested in the subject matter of the suit previous to his or her death; but in all such cases an affidavit shall be filed by the party desiring to make any unknown person a party,” etc. This provision must be fairly and reasonably complied with, and not evaded. A complainant knowing the parties in interest, and adopting the mode authorized by this provision, to prevent their obtaining notice of the proceeding would be guilty of a fraud on the law, and on claimants or parties in interest, by being thus described. The law will never permit its process to be used for fraudulent purposes, and when such an attempt is made, the courts will relieve against such a fraud. The purpose of the statute is to give notice and afford an opportunity to all persons claiming an interest, to appear and be heard in defence of their claims before being deprived of them. The statute can not be perverted so as to avoid instead of giving notice to defendants. Heermans, in his answer to the bill in the Lee foreclosure suit, alleged that Joseph F. Hill, Jr., claimed to be the owner of the mortgage, and was using Lee merely to obtain a foreclosure for his own benefit, and in his testimony in this case he admitted that Hill claimed to own the mortgage by assignment from Fellows. He must have known, however, that Hill claimed to be assignee of the debt, as they were both nephews of Fellows, and both had transacted business for him. Heermans then evaded making Hill a party to his foreclosure suit, and fraudulently perverted the statute to avoid making Hill a party to his bill, and Hill can not be bound by the decree.

Heermans claims that inasmuch as the property of Fellows was all in the hands of the receiver, he had no power to assign the bond and mortgage, and the attempt to do so conferred no title on Hill, and hence appellant has no title. The receiver settled with the court, and was discharged, and we infer he made no report to the court that this claim ever came into his hands, nor does it appear that Heermans ever claimed or demanded them of the receiver; and inasmuch as Fellows never recalled the gift after the receiver was discharged, he ratified the gift.

But it is urged that appellant’s sole remedy was to come in after he purchased the bond and mortgage, and within the three years allowed by the statute, and petition to have the decree opened, and to be permitted to answer and defend. Hill, his assignor, not being a party to that decree, was not required to adopt that course. It is claimed that decree did not become final until the expiration of three years after it was rendered, and that until that time a bill of review could not be maintained. It has been held that under that provision-of the Chancery act a defendant has five years after that period has expired, to prosecute error. (Sale v. Fike, 54 Ill. 292.) The same rule was announced in Lyons v. Robbins, 46 Ill. 276; and in the cases of Southern Bank of St. Louis v. Humphrey, 47 Ill. 221, and Martin v. Gilmer, 72 id. 193, it was held not to protect purchasers under it, because it was not final. But the statute calls such a decree final, and in the sense that it settles the rights of the parties and concludes complainant by its findings, it is final. It is so for all purposes, except it may, on a proper showing, be opened by a defendant who was not served with process. There can be no question that a writ of error will lie to such á decree at any time after it is enrolled, and a bill of review may be filed at any time when a writ of error will lie. This provision of the statute was intended to give an additional remedy, and not to take away or limit those, already in existence. Had such been the purpose, some language would have been employed to express the intention, but we find none from which such an inference can be drawn. But outside of this, appellant or his assignor was not a party to that decree. The statute provides the parties not served, alone shall have the privilege of opening the decree, so that in any event, under the facts in this case, appellant may-maintain his bill.

Having disposed of these preliminary questions, we shall proceed to consider the merits of the case. All persons in the profession must know that the title to chattels or choses in action does not pass by sale or gift, as to creditors or purchasers, unless accompanied by possession, either actual or constructive,—and in this case there is not sufficient evidence to show that Fellows ever delivered or Heermans ever acquired possession of these instruments, under the deed of the 10th of October. He, in his testimony, does not say that there was actual or symbolical delivery, or that he had any control over them, or even saw them. He supposed, but does not know, that they were among Fellows’ papers, to which he had access. From the evidence in the case we are strongly impressed with the belief that no such delivery was made as was necessary to pass title to Heermans. The presumption from the fact that Fellows had possession when he assigned them to Hill, is, that he never parted with them. Fellows occupied the office in which his papers were kept, and in which Heermans and the receiver transacted the business. It was in a room of "his house, and he must have had access to all his papers after as before the execution of the deed of the 10th of October, 1868. Heermans does not say there was any change after that time. We are therefore of opinion that such a delivery is not shown as passed the title. If Heermans was claiming as a purchaser, it might be that such strict proof of a delivery would not be required; but he claims as a volunteer,—and not only so, but he must claim for Fellows’ estate, although in his bill and decree he claims in his own right. It is true that Hill took also as a volunteer, but appellant did not, as he paid value, and Fellows had assured him that he had the power to revoke the deeds of the 10th and 15th of October, and had the power to dispose of his property.

It is, however, urged, that appellant exchanged property for this claim worth not exceeding $3000, but the other side asserts it was worth $17,000. In any event, Hill acknowledged in the assignment that he had received value, and it is admitted there was a consideration paid for the assignment. Did Hill acquire title by the assignment ? The instruments were payable to Fellows, they were at the time in his possession, and under the deed of the 10th of October, even if Heermans ever obtained possession he held the title for the use and benefit of Fellows; but if Heermans never acquired possession, then Fellows had the unquestioned right to transfer them, as he did, and Hill thereby became fully invested with the equitable title which he transferred to appellant, and he is authorized to enforce it against Heermans and the representatives of Fellows. Hill, by the assignment, took the title, and in equity he always held the title until his assignment to appellant. It is true it was pledged as security for the money borrowed of Lee, but in equity the title was in Hill, and he was a necessary party to foreclose his title. Heermans held all of Fellows’ property of which he acquired possession, with power to sell, collect and reduce it to money, and pay it to Fellows, retaining expenses and commissions. In equity, Fellows was the only beneficiary, and had the absolute right to receive the money, and when received, to dispose of it as he might choose. On this right and power there was not the slightest restriction. It, in equity, was- his property, and held by Heermans solely for his use, from the time he executed the deed of the 10th of October, until' the time of his death, unless sold or otherwise disposed of, so as to pass the title. This being true, we are unable to perceive any valid reason why he could not sell and pass his equitable title to this bond and mortgage. By doing so no one’s rights were invaded, or impaired, or wronged. Had this money been collected and paid to Fellows, no one could contend that he could not have given it- to Hill, and if so, he could surely anticipate its collection, and give the instruments that evidenced and secured the indebtedness. We are aware of no law that prohibits a person not under disability from selling his property, choses in action, or equitable rights. Heermans was clothed with a mere naked power, coupled with no interest. We have no hesitation in saying that the equitable title to these instruments passed to Hill, and appellant has succeeded to all his rights.

In reference to the decisions of the courts of New York and other States, we only need to say that although they grew out of this deed of October 10, 1868, the questions we have discussed were not involved, nor do they decide anything repugnant to the views here expressed.

For the reasons above given, the decree of the court below is reversed, and the cause remanded.

Decree reversed.

Mr. Justice Craig, dissenting.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    Board of Supervisors of Stark County v. The People ex rel. Com’rs of Highways of Town of Essex.

      Filed at Ottawa September 24, 1884.

    1. Mandamus—relator’s right must appear. In a proceeding by mandamus, it is essential, before the writ be awarded, that it be made to appear to the court that the relator has a clear legal right to have the thing done which is thereby sought.
    2. Bridges—right to demand county aid, by towns. The board of supervisors of a county are not bound to make an appropriation to aid the commissioners of highways of a town, until “one-half the necessary funds have been provided bj the town authorities.!’ This is a condition precedent for the protection of the tax-payers of the county.
    3. Same—of the provision by town for one-half the necessary funds. A mere arrangement by the' commissioners of highways, not sanctioned by a vote of the people of the town, under section 111 of the Road law of 1879, to borrow money with which to pay one-half of the cost of building a bridge, can not be regarded as legally providing for money to meet this kind of an improvement, as they are under no legal obligation to consummate the arrangement, and it can not form the basis for an application to the county board for an appropriation of the other half of the cost of the bridge.
    4. Under section 90 of the Road and Bridge act of 1879, there is no authority for borrowing money by the commissioners of highways for providing for one-half the cost of building a bridge, without a vote of the town, nor for requiring counties to pay one-half the expense of building bridges when private parties may be -willing to pay the other half.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Stark county; the Hon. Ninian M. Laws, Judge, presiding.
    Mr. B. F. Thompson, for the appellants:
    The statute requires that one-half the necessary funds to build a bridge shall have been provided by the town authorities before applying for county aid. This has not been done. The county board has the right to investigate and determine whether the town has complied with the statute in providing for one-half of the necessary funds. Board of Supervisors v. The People ex rel. 12 Bradw. 210.
    The commissioners of highways have no legal power to incur indebtedness for road and bridge purposes, in any fiscal year, beyond the amount of taxes already levied for that year. Com’rs of Highways v. Newell, 80 Ill. 587; Brauns v. Town of Peoria, 82 id. 11.
    Mo arrangement to borrow the money, with or without authority, can be said to comply with the requirement of the statute. See cases above cited.
    The relator must show a clear, undoubted right to the writ, or it will not be awarded. The People ex rel. v. Village of Crotty, 93 Ill. 180; The People v. Glann, 70 id. 232; The People v. Ketchum, 72 id. 212; Railway Co. v. County Clerk, 74 id. 27; St. Clair County v. The People, 85 id. 396; The People v. Lieb, 85 id. 484; The People v. Town of Oldtown, 88 id. 202; The People v. Com’rs of Highways, id. 141; The People v. Klokke, 92 id. 134; The People v. Davis, 93 id. 133;
      Lavalle v. Soucy, 96 id. 467; The People v. Hatch, 33 id. 140; Com’rs of Highways v. The People ex rel. 66 id. 339.
    Mr. Miles A. Fuller, for the relators:
    On the presentation of a petition in accordance with the statute, it is the duty of the county board to make the necessary appropriation. There is no discretion. The People ex rel. v. Board of Supervisors, 100 Ill. 640.
   Mr. Justice Scholfield

delivered the opinion of the Court:

We held, in The People ex rel. v. Supervisors, 100 Ill. 640, that where the commissioners of highways of a town have determined that the construction of a bridge across any stream in their town, in a public highway, is necessary, and that the cost thereof is too great a burden to be reasonably borne by the town, and apply to the board of supervisors of the county for an appropriation for one-half of the cost of its construction, the town authorities having provided the other half, the board of supervisors have no discretion to refuse to make the appropriation, but are bound by law to make the same from the county treasury. But in a proceeding by mandamus, like the present, it is essential, before the writ shall be awarded, that it be made to appear to the court that the relator has a clear legal right to have the thing done which is thereby sought.

The board of supervisors are not bound to make the appropriation until “one-half the necessary funds have been provided for by the town authorities.” (Laws of 1879, p. 281, sec. 110.) This is a condition precedent for the protection ' Cj of the tax-payers of the county. Unless the public necessity is such that the town authorities are willing to incur the burden of one-half the expenses, the burden of the other half can not be imposed upon the tax-payers of the county. The town must first act, through its authorities, and provide for one-half the necessary funds,—i. e., take such steps as shall render it absolutely certain that they will be on hand to make payment for the construction of the bridge, when required. It can not, therefore, be sufficient that private individuals, instead of the town authorities, may be willing to assume one-half the burden of building the bridge. The county is not required to act, and its tax-payers can not be burdened with this character of expense because of the liberality of private parties, for this would be to entirely disregard the test question by which the public necessity for the work is to be determined,_—namely, the willingness of the town authorities to incur one-half the expense. The proof here shows that the money was not on hand, that no tax had been levied from which it could be collected, and that no vote of the town was had, pursuant to section 111 of the act before referred to, authorizing the town to borrow the money. One of the commissioners of highways testified thus: “We had made arrangements to get the money to pay for the bridge,—made arrangements to borrow it of a bank, whenever we needed it,’—and this is all there is upon that question. Obviously, this arrangement could not bind the town, for the voters of the town had not authorized it; and if it was an arrangement of individuals, binding upon individuals only, it could not form the basis for fixing a liability upon the county. Moreover, a mere arrangement by individuals to borrow money, could not, in any view, be regarded as legally providing for money to meet this kind of an improvement. The individuals could be under no legal obligation to go forward and consummate the arrangement, so as to allow the town to have the money.

Counsel contend, however, that the arrangement proven was authorized by section 90 of the Boad and Bridge act of 1879. But that section only authorizes parties interested to offer inducements “for the establishment, alteration, widening or vacation of roads, by entering into contracts with the commissioners, conditioned upon such establishment, alteration, widening or vacating, to pay money, or any valuable thing, to the town, for the benefit of the road and bridge funds of the same, or to perform any labor, or to construct any road, bridge or culvert, on any road which said person or persons desire to have established, widened or altered.” There is not the slightest authority there for borrowing money by commissioners of highways without being authorized by a vote of the town, nor for requiring counties to pay one-half the expense of constructing bridges where private parties may be willing to pay the other half.

Being of opinion that the relator did not show a clear legal right to the writ, it follows that, in our opinion, the court erred in awarding it, and for that error the judgment is reversed, and the cause remanded.

Judgment reversed.


author: Mr. Justice Scholfield Per Curiam :

text:
    John Raber, use, etc. v. Frederick Gund.

      Filed at Ottawa June 13, 1884

      Rehearing denied September Term, 1884.

    1. Homestead—as to the measure of its extent, as to the lot or tract. of land. Where a debtor’s dwelling house, garden, orchard, and all the homestead improvements, are upon a forty-acre tract of a farm consisting of six hundred and forty acres, and such forty-acre tract exceeds in value $1000, the homestead exemption or estate will be confined to such forty-acre tract, and any of the remaining portion of the' farm may be sold on execution against ■ the debtor, free from any claim of homestead.
    2. If several tracts of land constituting a single, entire farm, occupied as a homestead, do not exceed in value $1000, the estate of homestead will include the farm; but if one lot of land occupied as a homestead exceeds in value $1000, the estate of homestead must be limited by the boundaries of that lot, although it may have been used as a part of a larger farm.
    3. Where the lot of land in which there is an estate of homestead, exceeds in value $1000, the excess is subject to the lien of a judgment against the owner, or of a mortgage.

      4. Same—as to the character of interest in which the right may exist. The owner of land can not have two distinct estates of homestead in the same property. Thus, if he mortgage his land, releasing the homestead right, he has no estate of homestead in the equity of redemption. Nor is this rule affected by the act of 1872, giving an estate of homestead as contra-distinguished from a mere exemption given by the former statute.
    5. Judicial sale—application of surplus money arising therefrom. A, being the owner of a farm of six hundred and forty acres, gave a deed of trust on two forty-acre tracts of the same to B, in which the homestead was properly released. It appeared that the homestead, buildings and improvements were all on the north forty-acre tract, and that it was worth more than $1000. Subsequently, D obtained judgments against A, under which the south forty-acre tract in the deed of trust was levied upon and sold to G, still leaving a balance due on D’s executions. The trustee afterward sold the entire eighty-acre tract to satisfy the indebtedness secured, selling the north forty acres first, which not bringing enough, the south forty was sold, D becoming the purchaser of both forties. The sale realized $408 more than enough to satisfy the trust deed: Held, that D, and not A, was entitled to such overplus left in the hands of the trustee.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Stephenson county; the Hon. Joseph M. Bailey, Judge, presiding.
    Mr. U. D. Meacham, for the appellant:
    The Homestead act of 1872 gave Baber, in the equity of redemption in the eighty-acre tract, an estate of homestead to the extent in value of $1000, measured by value, and not by the number of acres. Rev. Stat. 1874; Eldridge v. Pierce, 90 Ill. 481; Browning v. Harris, 99 id. 459; Hartman v. Schultz, 101 id. 440.
    As against executions, a householder in possession with his family is entitled to a homestead of $1000 in land mortgaged by him. Green v. Marks, 25 Ill. 221; Hartwell v. McDonald, 69 id. 293; Asher v. Mitchell, 92 id. 488; People v. Still, 7 Bradw. 298; Shackleford v. Todhunter, 4 id. 271.
    If the value of the north half was $1600, and of the south half $1420, then, in that relative proportion, the two tracts should have borne the debt secured by the trust deed. Funk
      v. McReynolds, 33 Ill. 495; Finlay v. Thayer, 42 id. 353; Vanscoyoc v. Kemler, 77 id. 153; Erlinger v. Boul, 7 Bradw. 45; Tice v. Annin, 2 Johns. Ch. 127; Heyer v. Pruyn, 7 Paige’s Ch. 469; McKinstry v. Curtis, 10 Paige, 503; Weaver v. Toogood, 1 Barb. 240; Mathews v. Aiken, 1 Comst. 595; Gilbert v. Averill, 15 Barb. 23; Jumel v. Jumel, 7 Paige, 591; Vanderkemf v. Shelton, 11 id. 28.
    Up to the time the trustee sold the eighty acres, appellee owned the equity of redemption in the south half. This gave him the right to redeem from the trust deed, and hold it against the entire eighty acres for his indemnity. He could not redeem from the trust deed on the south half and not on the north half also. The trustee had the legal right to insist that if appellee redeemed, he should redeem from the entire trust deed on the eighty acres. 1 Hilliard on Mortgages, p. 397, sec. 27; 4 Kent’s Com. (5th ed.) 162.
    Raber was under no legal or moral obligation to redeem the south half for appellee, and let him have the land, worth at least $1600, as shown by his own witnesses, when he only purchased and paid $720 for Raber’s equity of redemption. Finlay v. Thayer, 42 Ill. 353; Vanscoyoc v. Kemler, 77 id. 153; Briscoe v. Power, 47 id. 448; McKinstry v. Curtis, 10 Paige, 503.
    Mr. J. A. Crain, for the appellee:
    In an action for money had and received, the defendant may make any defence which shows that the plaintiff ex equo et bono is not entitled to the whole of his demand. Moses v. McFarland, 2 Burr. 1010; Stephenson County v. Manny, 56 Ill. 161; Watson v. Wolverton, 41 id. 243; Bennett v. Connelly, 103 id. 56.
    Where the property in which the estate of homestead exists exceeds in value $1000, the excess is plainly unaffected by the statute,—that is to say, the excess is liable to the same lien of judgment, attachment, etc., and to be alienated in the same manner that other real property of the householder is. Eldridge v. Pierce, 90 Ill. 481; Browning v. Harris, 99 id. 462.
    A lien by judgment is of as high an order as a lien by mortgage, and when the sale is made under the trust deed, and a surplus comes into the hands of the trustee, the lien of appellee will be transferred from the land to that surplus. Hart v. Wingart, 83 Ill. 284.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This was an action of assumpsit, by appellant, against appellee, for money had and received by the latter to the use of the former.

Appellant, being the owner of a farm of six hundred and forty acres, in July, 1871, he and his wife conveyed an eighty thereof, (being two forties lying north and south of each other,) in trust, to Black, to secure the payment of certain promissory notes to Flanagan, and relinquished therein all rights of homestead. In January, 1877, appellant and his wife conveyed the remaining tracts of land in the farm, in trust, to Taylor, to secure the payment of a promissory note to Kleckner; but this deed was afterwards satisfied by a sale of a part of the lands, and it is not connected with the questions arising in this case. On the 20th of October, 1877, appellee recovered four judgments, and on the 7th of December of the same year a fifth judgment, against appellant, in the Stephenson circuit court. Executions were issued on these judgments, and in June, 1878, the sheriff levied them on the south forty conveyed in the trust deed to Black, and on the 29th of June, 1879, by virtue of such levy, he sold this forty to appellee, still leaving a balance due on the execution, and executed to him a certificate of purchase therefor. On the 20th of September, 1879, Black sold the eighty so conveyed to him, to satisfy the debt due to Flanagan, selling the north forty first. The appellee became the purchaser of both tracts at that sale, paying the trustee, on that account, $1891.03, which overpaid the amount due Flanagan by $408.79. Appellee produced his certificate of purchase, and claimed this excess by virtue thereof, and it was paid to him by the trustee. No redemption was made by appellant. This suit is to recover this $408.79 so paid by the trustee to the appellee. The jury, under instructions of the court, found for appellee, and the court, after overruling a motion for a new trial, gave judgment thereon, and that judgment was affirmed on appeal to the Appellate Court for the Second District. Appellant brings the record here by appeal from that judgment.

The circuit court, of its own motion, instructed the jury as follows:

“This is an action for money had and received, brought by the plaintiff, against the defendant, to recover a sum of money constituting, as it is claimed, the surplus arising from the sale of certain lands under a deed of trust, after satisfying the amount secured by the deed of trust, and the costs and expenses of the sale. It will be your duty to determine, from all the evidence in the case, whether said money has been received by the defendant, and whether he ought, in justice and equity, to pay it over to the plaintiff. In determining these questions, it will be your duty to be guided by the rules of law laid down in the instructions given you by the court. The plaintiff claims said money as being a part of the avails of his estate of homestead in the premises covered by said deed of trust, while the defendant claims it by virtue of a levy upon the land out of which said surplus arose, and a sale of said land, under certain judgments and executions against the plaintiff. ■ By the laws of this State, every householder having a family is entitled to an estate of homestead, to the extent of $1000, in the farm or lot of land and buildings thereon, owned or rightfully possessed, by lease or otherwise, and occupied by him as a residence. If you believe, from the evidence, that at the date of the deed of trust to Black, read in evidence, the plaintiff was the owner in fee of the land described therein, and that he was then a householder having a family, and in the possession and occupancy of said land as a residence, he was entitled to an estate of homestead therein to the extent of $1000. And if you further believe, from the evidence, that the plaintiff, together with his wife, made, executed and acknowledged said deed of trust, then you are instructed that by said deed of trust the plaintiff waived and released his estate of homestead in said land, and was precluded from setting up said estate of homestead as against said Black, or the holder of the promissory note secured by said deed of trust. And if you further believe, from the evidence, that said Black, afterwards, in pursuance of the power contained in said deed of trust, advertised and sold said land at public vendue, for default in payment of said promissory note, and that at said sale the defendant became the purchaser of said land, then the defendant took the title to said land free from said estate of homestead. And if you further believe, from the evidence, that the defendant recovered against the plaintiff the judgments in favor of the defendant, and against the plaintiff, read in evidence, and that said judgments were severally recovered on the days on which they respectively hear date, then said judgments became, from and after the date of their recovery, liens upon said lands, subject to said deed of trust, and also subject to said estate of homestead. And if you further believe, from the evidence, that the plaintiff occupied the north half of said land as his residence, and that his dwelling house and all other buildings and improvements appurtenant thereto were situated thereon, and that the north half of said land largely exceeded $1000 in value, and that the defendant caused executions on his judgments to be issued to the sheriff of Stephenson county, and to be levied upon the south half of said land, and that said sheriff thereupon sold said south half of said land upon said executions, and that at said sale the defendant became the purchaser, and received from the sheriff the certificate of purchase read in evidence, and that said Black afterwards advertised said land for sale under said deed of trust, and on making sale in pursuance of said notice, voluntarily, of his own accord, offered the north half of said land for sale first, and sold the same for the sum of $1600, and that said sum not being sufficient to satisfy said promissory note and the costs of sale in full, then offered for sale the south half of said land, and sold it for the sum of $700, and that said last mentioned sum, after paying the residue of said note and the costs of sale, left a surplus in the hands of said Black of $408.97,—then said surplus belonged to defendant, and not the plaintiff, and you should so find by your verdict. ”

Complaint is also made of the refusal of the court to give certain instructions asked by the appellant, but we agree with the view expressed by the circuit judge in overruling the motion for a new trial,—that if this charge is correct, those instructions were properly overruled.

We are of opinion there is no substantial error in this ruling of the court. The evidence shows the north forty acres was in fact the homestead of the appellant. The dwelling house, and all the other buildings, the garden, the orchard, and “all the homestead improvements,” were upon it, and it exceeded in value $1000. The south forty was simply a part of the farm of six hundred and forty acres, and was in nowise differently connected with the north forty than was the forty lying east of that forty. We said in Gardner et al. v. Eberhart et al. 82 Ill. 321: “A farm may, as in this case, consist of several lots of ground, but the statute exempts only the lot so occupied. The court will take judicial notice of the government surveys of the public lands, and that a quarter section of land consists of four forties, each with well defined hounds. If the forty on which the residence buildings are situated does not exceed $1000 in value, it is exempt. (Hill v. Bacon, 43 Ill. 478.) It seems to follow that if the forty so occupied did exceed the value of $1000, the other three forties, or either of them, could be levied upon and sold, without violation of the debtor’s right of exemption. ” The same doctrine had been, in substance, previously announced in Hill v. Bacon, therein cited, and in Aldrich et al. v. Thurston, 71 Ill. 324.

We know of no reason why the trustee might not sell the homestead forty first, that can be available in this action. The deed to him conveyed the legal estate, and the power vested in him was broad enough to authorize it, and no equitable proceedings' were interposed to prevent it. It follows, then, inasmuch as the homestead forty did not sell for enough to satisfy the deed of trust, the sale of the south forty was unaffected by the claim of homestead. The balance, therefore, in the hands of the trustee after satisfying Flanagan, was properly paid to appellee, by virtue of his certificate of purchase.

The judgment is affirmed.

Judgment affirmed.

Subsequently, upon an application for a rehearing, the following additional opinion was filed:

Per Curiam :

We have been asked to grant a rehearing in this cause, upon the ground that inasmuch as Black’s trust deed was executed in 1871, the Homestead act of 1872 gave appellant a new estate of homestead in the property, measured by $1000 in value of his equity of redemption. We deem the position untenable. An equity of redemption is not an estate. It is sufficiently accurate for the present purpose to say, in general terms, it is a mere equitable privilege of removing an incumbrance upon land, and thereby preventing a divestiture of title. Whether the property be incumbered by judgment or mortgage, or not, the estate of the owner therein is, in equity, precisely the same. The first section of the Homestead act of 1872 only gives an estate of homestead “to the extent in value of $1000 in the farm or lot of land and buildings thereon owned or rightly possessed, by lease or otherwise, ” etc. Appellant had this estate in the north forty, as the evidence shows, incumbered, however, by deed of trust. As to those entitled to the benefit of that deed he was estopped to set up this estate, but his relations towards the balance of the world were just as if that deed had never been executed. As to them, he had an estate of homestead in the north forty. Of course, it might terminate by foreclosure and sale under the deed of trust, if he chose to suffer it to do so; but that did not affect his right of homestead as to others, so long as he remained owner of the land.

We do not conceive appellant’s right in the equity of redemption is any broader, as to the quantity of property included under the act of 1872, than it would have been had the act of 1851-57 remained.in force. The former named act, it is true, gives an estate, as contradistinguished from a mere exemption given by the latter; but the property in which that estate is given, and the measure of its extent, is substantially the same in both statutes.

It is not a fair construction of the statute that it was intended the owner should have distinct estates of homestead in the same property, enlarging and contracting as he should incumber it and remove those incumbrances,—that is to say, before mortgage, an estate of $1000 in value of the land itself; after mortgage and homestead released, and as to others than that mortgagee, an estate of $1000 in value of equity of redemption from that mortgage,—in other words, a privilege worth $1000 to redeem from that mortgage. Such a construction is neither fairly within the letter nor the spirit of the statute.

The rehearing is denied.

Rehearing denied.


author: Mr. Justice Sheldon

text:
    David Jones v. The People of the State of Illinois.

      Filed at Mt. Vernon September 27, 1884.

    1. Mining statute—construction of section 2, as limiting the right to contract for wages on a basis other than the weight of the coal—constitutionality. Section 2 of “An act to provide for the weighing of coal at the mines,” of the laws of 18S3, is not open to the constitutional objection of depriving coal operators of their right to make special contracts. That section does not require that the wages under all contracts shall be computed upon the basis of the weight of the coal mined. It only applies to cases where, by contract, the wages are to be paid according to the weight of coal mined.
    2. That act leaves it free for the owner or operator of a coal mine to make contracts with his employes to mine coal for whatever may be agreed upon between them,—by the day, week, month, year, or by the box, or in any other manner that may be agreed upon between them. Where the contract is for the paying of wages in some other way than according to the weight of the coal dug, the purpose of the act would seem to fail, and its provisions do not apply.
    3. On the trial of an operator of a coal mine for not providing a “track scale,” etc., so that the weight of coal of each miner might be ascertained, the court refused to allow the defendant to prove that for nine years prior thereto the corporation owning and operating the mine had a contract with all the men employed to mine coal during that period, to receive as the wages for their labor from the coal company forty cents for each box of coal mined and taken from the mine; that the miners had always been, and were then, satisfied to work under such contract, and that they did not want the coal weighed, as a basis upon which to compute their wages, etc.: Held, that it was error to exclude the proposed evidence, as its admission would have shown a case to which the statute did not apply.
    Appeal from the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.
    Messrs. Wilderman & Hamill, for the appellant,
    contended, at some considerable length, that the act of -1883, relating to mines, etc., was unconstitutional. If sustained, it will deprive every coal operator in the State of the power to make any contracts to have coal mined, except the wages of the miners be computed upon the weight of the coal mined,— citing 1 Cooley’s Black. 137; State Const. 1870, art. 11, sec. 2; Cooley’s Const. Lim. 485, 486, 487; Walley’s Heirs v. Kennedy, 2 Yerg. 554; Wynehamer v. People, 13 N. Y. 433; Pumpelly v. Green Bay Co. 13 Wall. 177; Potter’s Dwarris on Statutes, 491.
    The act is not within the police power of section 29, article 4, of the Constitution. Cooley’s Const. Lim. 738, 739.
    The right to regulate and control the charges of carriers, warehousemen, etc., rests on the fact that they are exercising a business public in its nature, or one in which the public have an interest. Ruggles v. People, 91 Ill. 262; Munn v. People, 94 U. S. 133; Railway Co. v. Jacksonville, 67 Ill. 40; King v. Davenport, 98 id. 314; Lake View v. Rose Hill Cemetery Co. 70 id. 197.
    Mr. R. D. Holder, State’s Attorney, and Mr. R. A. Halbert, for the People, among other points made the following in the argument:
    The constitutionality of the act is attacked on two grounds: First, that it deprives the operator of a coal mine of his property without due process of law; and second, it impairs the obligation of contracts.
    We fail to see wherein the operator of a mine is deprived by this act of any property. The act undertakes to do no more than to require the operator of a coal mine to supply the means of ascertaining at the mine the weight of the coal hoisted, before the same is shipped. Mines not located upon a railroad or water-course, and from which no coal is shipped by rail or by water, are excepted from the operation of the act. The act is one of regulation, merely,—fixing the place where the product of the mine is to be weighed, etc. No one will contend that the act fixing weights and measures is unconstitutional. So are markets regulated, and particular articles allowed to be sold in particular places, only or after license. Cooley’s Const. Lim. 749.
    The constitutional provision prohibiting the deprivation of property is not infringed by a proper regulation of a business which may render property used to carry on the business less valuable. If the business is still allowed to be carried on, and the property used is allowed to exist, and its possession is not disturbed, the owner can not be said to be deprived of his property. Munn v. People, 69 Ill. 80.
    There is nothing in the act that impairs the obligation of preexisting contracts.
    As to police power, see Daniels v. Hilgard, 77 Ill. 642; Cooley’s Const. Lim. 714; Dunn v. People, 91 Ill. 141.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an indictment found in the circuit court of St. Clair county, against the defendant, as operator of the White Oak coal mine, in that county, for a failure to put in track scales at said coal mine, as required by the provisions of an act entitled “An act to proyide for the weighing of coal at the mines.” (Laws of 1883, p. 113.) The first section of that act provides, “that the owner, agent or operator of each and every coal mine or colliery in this State, shall furnish or cause to be furnished and placed upon the switch or railroad track adjacent to said coal mine or colliery, a ‘track scale’ of standard manufacture, and shall weigh all coal hoisted from said mine or colliery before or at the time of being loaded on cars, wagons, or other vehicle of transportation, ” etc.' By section 2, “all coal produced in this State shall be weighed on the scales as above provided, and the weight so determined shall be considered the basis upon which the wages of persons mining coal shall be computed, ” Section 3 provides, “it shall be lawful for the miners employed in any coal mine or colliery in this State to furnish a checkweigher, at their own expense, whose duty it shall be to balance said scales, and see that the coal is properly weighed, and keep a correct account of same, and for this purpose he shall have access at all times to the beam-box’ of said scale while such weighing is being performed,” etc. The provisions of the act are made to apply only to coal miners doing business on and shipping coal by railroad or by water.

On the trial the defendant offered to prove that for nine years prior thereto, and from the time this act went into effect, to the trial, the corporation owning and operating this coal mine had a contract with all the men employed to mine coal in that mine, during that period, to receive as the wages for their labor, from said coal company, the sum of forty cents per box for each box of coal mined and taken from said mine; that all the persons employed in the mine to mine coal for said company had always been, and were then, perfectly satisfied to work under said contract, and that they do not want the coal taken from the mine weighed, as a basis upon which to compute their wages, and do not want to furnish a check-weigher at their own expense to weigh the coal mined by them; that track scales would cost from $800 to $1000. The court excluded the evidence, to which exception was taken. The defendant was found guilty, and fined in the sum of $40, and he appealed to this court.

The statute under which this proceeding is had is assailed by appellant’s counsel as unconstitutional. It is said the act in effect deprives every coal operator in the State of the power to make any contracts to have coal mined, except the wages of the persons mining the coal be computed upon the weight of the coal mined, and that the right to make contracts about the free use and enjoyment of one’s own private property is a right of property, and secured by the constitutional guaranty that no person shall be deprived of property without due process of law. As we read the statute it is not obnoxious to the objection made. Although section 2 does provide that the weight determined by weighing on the scales furnished shall be considered the basis upon which the wages of persons mining coal shall be computed, we do not regard this as requiring that in all contracts for the mining of coal the wages of the miners must be computed upon the basis of the weight of the coal mined. That would be a quite arbitrary provision,—seemingly an undue interference with men’s right of making contracts; and we can not ascribe to the legislature the making of such an enactment, unless it be plainly declared, which is not done in this case. The act seems to assume the above, according to the weight of the coal mined, to be the mode in which the wages of miners is contracted to be paid, and where that is the mode then the weight determined by weighing on the scales furnished shall be the basis upon which the wages shall be computed. But, as we read the act, it leaves it free for the owner or operator of a coal mine to make contracts with his employes to mine coal for whatever may be agreed upon between them, by the day, week, month, year, or by the box, or in any other manner that may be agreed upon between them. Where the contract is for the paying of wages in some other way than according to the weight of the coal dug, the purpose of the act would seem to fail, and its provisions not to apply. Taking all of its sections together, the design of the act appears to be for the protection of miners who are paid according to the weight of coal dug,—to provide a correct basis, in the determining of the weight, upon which their wages shall be computed. We are of opinion, then, the court erred in the exclusion of the evidence offered, as its admission would have shown a case to which the statute did not apply.

The judgment will be reversed, and the cause remanded.

Judgment reversed.


author: Mr. Justice Dickey

text:
    James A. Roosevelt v. Jehu J. Hungate.

      Filed at Mt. Vernon September 27, 1884.

    1. Ejectment—evidence showing prima facie case for plaintiff. On the trial of an action of ejectment, the plaintiff showed, by affidavit, that a certain person was the common source of each party’s title, and then introduced in evidence a deed of conveyance from the person so shown to be the common source of title, and rested: Held, that this proof made out a prima facie case for the plaintiff, and entitled him to recover unless a good defence was shown.
    2. Same—special pleas held improper. In ejectment the defendant pleaded two special pleas: First, that the defendant held possession from the plaintiff as a tenant from year to year, which tenancy had not been terminated by sixty days’ notice prior to the end of the year; and second, that the defendant held the lands by virtue of a written lease from the plaintiff, from March 1,1883, to March 1,1884,—the suit having been brought prior to the latter day: Held, that these pleas were wholly improper, as every matter of defence in them was admissible under the general issue, which was also pleaded.
    3. Landlord and tenant—tenancy from year to year—notice to terminate. The owner of land, before bringing his action of ejectment to recover possession, is not bound to give the defendant notice to terminate his tenancy from year to year, unless such defendant holds as the tenant of the plaintiff, or as the tenant of his grantor.
    4. Same—tenancy from year to year terminated by taking new lease. If a tenant from year to year accepts a new lease for a definite period, the prior tenancy is terminated, and no notice is necessary to terminate the new tenancy, prior to the end of the term.
    5. Same—owner not bound by lease of a stranger. Before a written lease can be set up by the defendant to defeat an action of ejectment brought by the owner of the land, it must appear that the plaintiff, or his grantor, executed the same, or that the person executing the same was the authorized agent of the plaintiff to lease the property.
    Writ of Error to the Circuit Court of Clay county; the Hon. William C. Jones, Judge, presiding.

      This is an action of ejectment, brought by James Roosevelt, against Jehu J. Hungate, in the circuit court of Clay county, on March 7, 1883, to recover possession of the south half of the south-east quarter of section 24, the north-east quarter of section 25, the south half of the north-east quarter of section 26, the south-west quarter of the north-west quarter of section 26, and the north half of the south-east quarter of section 26, all in township 5, north, range 6, east; also, the south half of the south-west quarter of section 19, and the north-west quarter of section 30, both in township 5, north, range 7, east of the third principal meridian, the plaintiff claiming the title in fee. The defendant pleaded the general issue, and three special pleas, a,s follows: First, title in the defendant to the north-east quarter of the north-west quarter of section 25, township 5, north, range 6, east; second, that as to all the lands except the north-east quarter of the northwest quarter of section 25, township 5, north, range 6, east, the defendant holds under the plaintiff as tenant from year to year, and was entitled to sixty days’ notice prior to March 1, 1883, to surrender the premises, and that he did not receive such notice; and third, that he holds said lands, except the north-east quarter of the north-west quarter of section 25, township 5, north, range 6, east, by virtue of a written lease from plaintiff to defendant, from March 1, 1883, to March 1, 1884. The plaintiff dismissed the suit as to the north-east quarter of the north-west quarter of section 25, township 5, north, range 6, east, and issues were taken upon the pleas, and a jury waived, and the cause was tried by the court, which found the issues for the defendant, and rendered judgment against the plaintiff, to reverse which judgment the plaintiff prosecutes this writ of error.'
    On the trial the plaintiff introduced evidence of title in himself, acquired some time in November, 1878. The defendant then called M. H. Presley, who testified that in 1878 a man, whom he afterwards learned was Lardner, came to his office in Flora and represented himself to be the agent of the Equitable Trust Company, and requested him to take charge of and run the farm in controversy, which he consented to do; that Lardner then said he would write to the Equitable Trust Company about the matter, and have it write to the witness about the farm; that in a short time after such conversation he received the following letter from that company:
    “New York, July 12, 1878.

      “To Messrs. Presley & Gray, Flora, Illinois:

    “Gentlemen—We will ask you to take charge of the renting of the farm conveyed to us by Granville Bates, and use your best efforts to obtain from it all the income that it is capable of producing. Please report to us frequently what proceeds you make, with statements of the names of tenants, the amount of land rented to each, and the rent he is to pay. We rely upon your judgment and enterprise to manage to the best advantage of this company.
    “Very truly yours,
    John Rockwell, Supervisor.”

    The plaintiff objected to the witness giving the statements of Lardner, and the conversation with him, and to the introduction of the letter in* evidence; but the court overruled the several objections and admitted the evidence, and plaintiff excepted.
    The witness Presley further testified, that under the authority conferred by this letter he leased the lands in con-' troversy to the defendant, and identified the leases shown him. The defendant then offered the three leases in evidence. The plaintiff objected to their admission, for the reason that none of the leases were made by the plaintiff, or by his authority, but the court overruled the objection, and received the leases in evidence. The first lease was dated February 1, 1879, and purported to be between James A. Roosevelt, of the first part, and John D. P. Hungate and J. J. Hungate, of the second part, and to lease what is known as the “Bates farm, ” to the parties .of the second part for one year, from March 1, 1879, for $300 rent, and was signed as follows: “James A. Roosevelt, by M. H. Presley, agent, ” and “John D. P. Hungate” and “Jehu J. Hungate.” The second lease was dated May 9, 1881, and recited that Presley had rented to Jehu J. Hungate the Hungate or Bates farm, for two years, from March 1, 1881, till March 1, 1883, on certain conditions therein named, and was signed, “M. H. Presley, agent,” and “Jehu J. Hungate.” The last lease or agreement was dated April 28, 1882, and extended the prior-leasing one year longer, and was signed in the same mode as the preceding one.
    The witness further testified that defendant was a good tenant, and had paid all the rent due under any of the leases up to March 1, 1883, and that witness remitted the rents, when paid, to the Equitable Trust Company. On cross-examination he testified that he never saw or had any correspondence with James A. Roosevelt, and never had any authority from him to take charge of or lease the lands. He also testified that he turned over his agency to Clutter, by direction of the company. Jehu J. Hungate testified that he had paid all the rents due under any of the leases, and performed all the conditions to be performed by him; that he had been in possession of the land some two or three years prior to the purchase by Roosevelt, and was in possession at the time of his purchase, under other owners, whose names are not stated; that after Roosevelt purchased, he rented of Presley, paid the rent to him until he turned over his agency to Clutter, and had since paid to Clutter and the bank the balance. In rebuttal the plaintiff called Henry B. Ivepley, who testified that he knew the Equitable Trust Company and its officers; that the plaintiff was not the president of that company, and that he thought he never was its president or any officer thereof, and so far as he (witness) knew was not even a member of the company; that for many years Jonathan Edwards was president of said company, and since the death of Edwards, F. B. Elliott has been president of that company, and that he did not know of his own knowledge if plaintiff was ever connected with said company. This was substantially all the evidence in the case.
    Mr. Henry B. Kepley, for the plaintiff in error:
    Proof of a lease to defendant from any person other than the plaintiff, does not maintain the issue on the plea of lease of the plaintiff, and such proof was not admissible.
    The only lease covering the time mentioned in the plea,— from March, 1883, to March, 1884,—is from “M. H. Presley, agent. ” The proof is clear that Presley acted as agent of the Equitable Trust Company, and that he did not act for the plaintiff, and had no authority from him.
    The proof failing to show the existence of the relation of landlord and tenant between the plaintiff and defendant, there was, in no event, any notice required. Herrell v. Sizeland, 81 Ill. 457.
    In ejectment the legal title must prevail. Wilson v. South Park Comrs. 70 Ill. 46; Aholtz v. Zellars, 88 id. 24; Johnson v. Watson, 87 id. 535; Chiniquy v. Catholic Bishop, 41 id. 148; Wales v. Bogue, 31 id. 164.
    Mr. F. G. Cockrell, for the defendant in error:
    A jury being waived and the case tried by the court, does not obviate the necessity of entering a motion for a new trial. Bills v. Stanton, 69 Ill. 51; Reichwald v. Gaylord, 73 id. 503.
    If counsel for plaintiff desired to call in question the ruling of the circuit court on the legal effect of the evidence offered, he should have submitted written propositions of law. Fitch v. Johnson, 104 Ill. 111; Bridge Co. v. Comrs. of Highways, 101 id. 518; Hobbs v. Ferguson, 100 id. 232.

      The right to file the special pleas in this case has been doubted. We think they were proper. Sheldon v. Van Vleck, 106 Ill. 45.
    Counsel also contended that Presley, in making the leases, was the agent of the plaintiff, and that plaintiff ratified the leasing by collecting the rents, or a portion of them.
   Mr. Justice Dickey

delivered the opinion of the Court:

This is an action of ejectment, brought by appellant, against appellee. On the trial below the plaintiff showed, by affidavit, that Adrian Iselin was the common source of each party’s title to all the lands in dispute, except the undivided one-sixth part of a certain forty-acre tract, and that Stephen McKnelly was the common source of title as to that. He then introduced in evidence a deed from Adrian Iselin and wife, to the plaintiff, dated November 9, 1878, for all the lands, except the undivided one-sixth part of the forty-acre tract, and a deed from Stephen -McKnelly and wife for that interest. This proof made out a prima facie case for the plaintiff, and entitled him to a judgment for the lands, unless a good defence was shown by the defendant. The defendant offered no evidence whatever of title in himself, or in a third person. The second special plea is, that the defendant holds possession from the plaintiff as a tenant from year to year, which tenancy has not been terminated by sixty days’ notice prior to the end of the year. The third special plea is, that the defendant holds the lands by virtue of a written lease from the plaintiff, from March 1, 1883, to March 1, 1884. The evidence fails to establish either defence.

It appears that the defendant was in possession of the lands prior to the time the plaintiff acquired his title thereto in November, 1878. On this point the defendant testifies': “I had been in possession of the land under other owners some two or three years prior to the purchase by.Roosevelt, and I was still in the possession at the time of such purchase, and after Roosevelt purchased I rented of Presley. ” There is no evidence showing under whom he went into possession, or under whom he was holding when Roosevelt acquired his title. There is nothing in the record from which even an inference may he drawn that he was holding under the grantors of Roosevelt. In such a case Roosevelt was under no obligation to give any notice to( terminate a tenancy from year to year, if any such existed. And if such a tenancy had been shown as was binding on the plaintiff when he bought, it was terminated when the defendant and John D. P. Hungate accepted a lease from Presley, agent, dated February 1, 1879, for one year. That lease created a tenancy for a definite term, and defendant’s rights thereafter were fixed by it. The tenants under this lease held over one year. But on May 9, 1881, M. H. Presley, as agent for some one whose name is not disclosed in the writing, again leased the premises to the defendant alone, for the term of two years, from March 1, 1881, andón April 28, 1882, “Presley, agent,” extended the lease one year, so that the term should extend to March 1,1884.

The plaintiff, on the trial, objected to the introduction in evidence of these three leases. They had no tendency to establish a tenancy under the plaintiff. The plaintiff is not shown to have made or authorized any of them. The last two do not even purport to bind the plaintiff. It is true Presley signs the same as agent, but the instruments on their face fail to show for whom he was acting as agent. If we take the testimony of Presley, it clearly shows that he was not taking charge of and renting the same for and on behalf of the plaintiff, but for the Equitable Trust Company. On cross-examination he says: “I never saw James A. Roosevelt, and I never had any correspondence with him. I never had any authority from him to take charge of or rent the said farm in controversy in this suit. I had no other authority to take charge of said farm than derived from said conversation with Lardner, before alluded to, and the letter from the Equitable Trust Company. It was by that authority, and no other, that I leased the said farm to the said defendant. ”

It is claimed that the plaintiff has ratified the last leasing by Presley to the defendant, by receiving the rent from the defendant. We think the evidence does not show anything said or done in this regard by plaintiff. The only evidence in this respect is that of Presley and the defendant. Presley testified: “After I had extended the lease of Hungate to March 1, 1884, I was directed by the Equitable Trust Company to turn over my agency to Clutter, of Effingham, Illinois, which I did. After meeting Clutter and Mr. Kepley I turned over the notes of Hungate to Clutter, which were given in consideration of the extended lease, and Hungate has paid the notes due, to Clutter. I am not sure but one note has been paid to Mr. Kepley, through the First National Bank of Flora. ” Mr. Kepley is the attorney for plaintiff in this action. The defendant testified that during the last summer and fall both Kepley and Clutter tried to scare him out, and get him to give up the farm or lease from them; that he paid the rent to Presley until he turned over his agency to Clutter, and that he paid the balance of the rent to Clutter, except the last note, which was sent to the bank in Flora, when he paid it, but that he did not know to whom the bank paid it. This is not sufficient to show that Clutter took the defendant’s notes as agent for the plaintiff. The evidence rather tends to show that Clutter received the notes as agent for the Equitable Trust Company, which directed Presley to turn over his agency to him. There is nothing in the proofs which overcomes plaintiff’s case as made.

It may be remarked that the special pleas were wholly improper, as every matter of defence contained in them was properly admissible in evidence under the general issue.

The judgment is reversed, and the cause remanded.

Judgment reversed.


author: Mr. Justice Scott

text:
    The Covenant Mutual Benefit Association v. Lauba Hoffman et al.

      Filed at Mt. Vernon September 27, 1884.

    1. Life insurance—certificate construed, as to beneficiaries. A certificate of membership in a benevolent association, in the nature of a policy of life insurance, provided; if certain conditions were observed and performed, for the payment of the sum of $5000 on the death of the holder, “to be paid as a benefit to his wife, L. H., and children, equally. ” The holder, at his death, left his wife and five children, one of whom died after suit brought upon the policy in the name of all, leaving his mother and four brothers and sisters as his only heirs, and the cause proceeded to judgment in the names of the widow and remaining children, who recovered judgment for the full $5000: Held, that the widow and remaining four children were entitled to the same sum as though she and all the children were suing, and that the judgment was not for too much.
    2. Where a certificate in the nature of a life policy of insurance is made payable to the wife of the holder, by name, and his children, equally, upon evidence of his death, “or in the event of their prior death, to the legal heirs or devisees of the holder, ” the word “children” will designate a class of persons, and those living at the time of the trial of an action on the certificate, together with the wife, will be entitled to recover the whole amount; and a correct construction of the latter clause is, in case of the prior death of any one of the class designated to take the benefit, the heirs of the holder or the assured, who, in this case, were the surviving brothers and sisters and the mother, shall take the share of the deceased party.
    3. Evidence—proof of death of the assured, as evidence of what disease he died. A benefit certificate issued to a member of an association had a number of conditions annexed from which the benefit was non-payable,— such as, if the member’s death was by reason of self-destruction, or other acts named. The proofs of his death stated that he died from pneumonia. On the trial of an action brought by the beneficiaries, this proof was introduced in evidence, and the defendant asked the court to instruct the jury that the proofs of death offered were not evidence of what disease the member may have died, which the court refused to do: Held, that the proofs of death were proper evidence, although containing proof of the disease of which he died, and that it was not error to refuse the instruction in the form asked; and that had the court been asked to instruct the jury that the proofs of death were no evidence on the question whether the deceased had disease of the lungs or other diseases at the time he made the application, it would no doubt have so instructed.

      Appeal from the Appellate Court for the Fourth District; —heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.
    Messrs. McKenzie & Calkins, for the appellant:
    There was a non-joinder of parties plaintiff, as shown both by the pleadings and proof. On the trial, proof being made that Peter Hoffman, one of the five children, had died since the suit was brought, the plaintiffs amended their declaration by striking out the nUrne of Peter Hoffman. The five remaining plaintiffs had no cause of action, the contract being entire and indivisible.
    In actions ex contractu, having too many or too few plaintiffs is fatal to a recovery. Snell v. Deland, 43 Ill. 335; Murphy v. Orr, 32 id. 489; 1 Chitty’s Pleading, 20.
    The certificate sued on did not make the wife and children partners. It provided that equal portions of $5000 should be paid to each. The benefits provided by a life insurance policy are in the nature of a testamentary devise, and in construing it as to the rights of the beneficiaries, the court should, as nearly as possible, treat it as a will. Continental Life Ins. Co. v. Palmer, 42 Conn. 60.
    If, in an obligation to pay a gross sum to several parties, there is no stipulation to pay any portion to each, then the survivor's bring the action. (Davis v. Wannamaker, 2 Col. 637.) By necessary inference from the above, had there been a stipulation to pay a part or “equally” to each, the survivors could not alone have sued and recovered the whole.
    Peter Hoffman, in his application, warranted that since his former application (May 31, 1880,) he had not suffered from any serious or protracted illness, and that he was then free from all disorders, weaknesses or infirmities tending to impair health or shorten life. It made a serious difference whether he died of pneumonia of five days’ duration, or of consumption of a year’s standing. Therefore it was error to refuse the ninth instruction asked by appellant.
    The proofs were legitimate evidence only for one purpose— to show a compliance with the terms of the certificate.
    Messrs. Hay & Knispel, for the appellees:
    Where one or more of several obligees, covenantees, partners, or others having a joint, legal interest in the contract, dies, the action must be brought in the name of the survivor. 1 Chitty’s Pleading, 19; Bostwick v. Williams, 40 Ill. 113.
    The widow and children of Peter Hoffman have a joint, legal interest in the policy or contract, and not a several interest. Hartford Fire Ins. Co. v. Davenport, 37 Mich. 609; Northrup v. Phillips, 99 Ill. 449.
    The proofs of death were called for by the company, in the policy. They were to be satisfactory to the company. They were admitted in evidence without objection, and were necessary and proper for the purpose of showing that appellees had performed the conditions precedent.
    The issues and the evidence involved these two questions: Did Peter Hoffman make false and untrue statements and misrepresentations in his original application for insurance; and second, did he make false and untrue statements, and warrant the same to be true, in his application for reinstatement.
   Mr. Justice Scott

delivered the opinion of the Court:

This suit was brought on a “certificate of membership” in the Covenant Mutual Benefit Association of Illinois. It was issued to Peter Hoffman, since deceased, in consideration of the sum of ten dollars (membership fee) paid in hand, and of the payment of such amount for mortuary assessments, expenses and collection costs as should be required of him, in accordance with the condition in the certificate expressed. It was provided that upon due notice of the death of the holder of the certificate being filed with the secretary of the association, showing the member had in all respects complied with the conditions of the certificate, an assessment would be levied upon all the members holding certificates in force at the time of the death of such member, for the full amount named in their respective certificates; and the sum so collected on such assessments, less all amounts which might be added for expenses and collection costs, the association agreed by the certificate to pay, or cause to he paid, as a benefit, to his wife, Laura Hoffman, and children, equally, or in the event of their prior death, to the legal heirs or devisees of the holder of the certificate, within ninety days from the date of the acceptance of evidence of death; but in no case should the payment under the certificate exceed $5000. A number of conditions were printed on the back of the certificate, which the member was obligated to observe, and it was agreed they should constitute a part of the contract between the parties, as if they had been inserted in the body of the certificate itself. So far as any of these conditions are important in the present decision they will he stated further on, but not otherwise. Across the face of the certificate issued to the deceased was printed in large figures, “$5000,” which would seem to indicate that was its value. At his death, Peter Hoffman, to whom the certificate was issued, left him surviving, his wife,- Laura Hoffman, and five children, in whose names the suit was brought against the association to recover $5000,—the benefit secured to them by the certificate of membership issued to the deceased holder. After the suit was brought, and before trial, Peter Hoffman, Jr., one of the children, died. It appears this child, Peter, was born after the death of the husband, which occurred August 2, .1881, and that he died in May, 1882. His only heirs would be his mother and surviving brothers and sisters. After the death of the child Peter; the suit progressed in the name of the widow and the four surviving children, and judgment was rendered in their favor for the full value of the certificate of membership, which was $5000. In no event could any greater sum have been recovered had this youngest child survived.

It is insisted it was error of law to render judgment in favor of the widow and the four surviving children, for the reason the benefit secured was to be paid to the widow and the children, equally, of whom the proof shows there were five when this suit was brought. The objection seems to be it was not proper to render judgment for the full value of the benefit, on a declaration in favor of the widow and four children, with the name of the deceased child omitted. It is not perceived there was any error in so rendering the judgment. There are two views, both of which sustain the action of the trial court: First, the benefit was; by the certificate, secured to be paid to the widow (by name) and children,— that is, to Laura Hoffman, and to a class of persons designated as children, and to be ascertained after the death of the holder of the certificate. At the trial it was found, from the proof, there were but four children surviving. They then constituted all the class embraced in the term “children,” and it was entirely correct to render judgment in their favor, as was done. Second, were this not so, the judgment might be sustained for another reason. It is provided by the certificate, that in the event of the prior death of the beneficiaries named, the benefit should be paid to the legal heirs or devisees of the holder of the certificate. A correct reading of this provision would be: in case of the prior death of any one of the class designated to take the benefit, the heirs of the holder would take the share of the deceased.party. Here, the plaintiffs were the heirs of the holder, and they took the whole benefit, and the judgment in their favor was regular, and authorized by law.

The point is made the circuit court erred in overruling the motion for a new trial. The argument on this branch of the case might have been with great propriety, and doubtless was, addressed to the Appellate Court when the cause was heard in that court. "Whether the deceased was guilty of fraud in procuring a renewal of his membership, or whether the evidence warranted a finding for plaintiffs, and in the amount found by the verdict, are so exclusively questions of fact, the finding of the Appellate Court touching them is conclusive upon this court. They are all controverted questions of fact, arising on conflicting testimony, concerning which the statute forbids the assignment of any error in this court.

It is strenuously insisted it was error in the trial court to refuse to give the jury the ninth instruction of the series asked by defendant. It is as follows :

“The jury are instructed that the proofs of death offered in evidence are not evidence of what disease Peter Hoffman may have died, and can not be considered by the jury for that purpose.”

Recurring to the conditions printed on the back of the certificate, it will be seen the benefit was not to become payable if the holder died by reason of any act of self-destruction whatever, whether at the time of committing the same he was sane or insane. The fifth paragraph also contained a number of conditions, the happening of any one of which would render the benefit non-payable. It was no doubt proper, in making proof of the death of the holder, to show he did not come to his death by reason of self-destruction, or by reason of doing any other act mentioned in the conditions, and annexed to the certificate of membership. Stating the disease of which the holder died, is a satisfactory mode of excluding the hypothesis he may have died by self-destruction, or that he had been guilty of any other act the doing of which would annul and render void the certificate. The “proofs of death” were proper evidence, although containing, as they did, proof of the disease of which the holder died, and it was not error in the trial court to refuse the instruction in the form it was asked. The principal controversy at the trial seems to have been whether the application for the renewal of his membership, as made by the deceased, and which it is conceded was a warranty, was false and fraudulent. In the proofs it was stated the disease of which the holder of the certificate died, was pneumonia. There does not seem to have been any controversy he died of some disease of the lungs. The conflict in the evidence is as to whether he had disease of the lungs or other diseases at the time he made application for the renewal of his membership. Had the court been asked to instruct the jury the proofs of death were no evidence on that question, no doubt it would have done so. But that was not what the court was asked to do.

The judgment of the Appellate Court must be affirmed.

Judgment affirmed.