author: Mr. Justice Craig

text:
    George Berry et al. v. Henry Lovi.

      Filed at Ottawa November 20, 1883.

    1. Noticie—by possession. "Where an attachment is levied upon, and becomes a lien on land before its conveyance by the owner, and a purchaser takes actual possession of the premises before judgment in the attachment suit, which is continued, and the property is purchased by the plaintiff in the attachment, who assigns his certificate of purchase to one who again assigns the same to another, who takes out a sheriff’s deed, there will be involved no rights of innocent purchasers, and the parties so acquiring the certificate of purchase by assignment having notice of the equities of the party in possession, will have the same, but no greater, rights than the original purchaser at the sheriff’s sale.
    2. Judicial sale—what is inadequacy of price. Where lots worth $8000 are sold for $65.38, the amount of the sale is grossly inadequate.
    3. Same—when set aside for inadequacy of price. Judicial sales will not be set aside for mere inadequacy of price, unless it is so gross as to amount to a fraud.

      4. Same—sale en masse for inadequate price. Where two separate lots, of the value of $8000, are sold on execution for $65, en masse, without first offering them separately, a court of equity will interpose, if invoked in a reasonable time, and set the sale aside.
    5. Laches—excuse for delay in filing bill to set aside a sale. Where a purchaser of lots was aware of an attachment against them at the time of his purchase, but was assured by the agent of his grantor that he would take care of the matter, and he was afterwards, and within the time of redemption, shown an abstract containing a memorandum that the judgment was fully satisfied by the return of execution, from which he was led to believe that the judgment had been satisfied by payment, instead of by sale of the lots, which belief was strengthened by the conduct of the purchaser at the sheriff’s sale, and those claiming under him, in not taking out and recording a sheriff's deed for several years, it was held, that a delay of five years in filing a bill to set aside the sale was not a bar to equitable relief.
    6. Execution—must be delivered to officer in-its lifetime. A sheriff has no right to proceed under an execution unless it comes to his hands within ninety days from the time it was issued.
    Appeal from tlie Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    Mr. Consider H. Willett, for the appellants:
    The statutes declare that a sheriff’s deed shall be void if not issued within five years from the last day of redemption, saying nothing whatever about recording it. The decree is erroneous in holding that “issuing” includes “recording.” Rev. Stat. chap. 77, sec. 30; Ryhiner v. Frank, 105 Ill. 326; Rucker v. Dooley, 49 id. 377.
    No levy was necessary after the levying of the original attachment writ. Freeman on Executions, sec. 289; Tyrell v. Roundtree, 7 Pet. 464; Lofland v. Ewing, 5 Litt. 42; Rorer on Judicial Sales, sec. 576; 3 Bacon’s Abridg. “Execution,” 734; Caines v. Clark, 1 Bibb, 608; Barnard v. Stephens, 2 Ark. 429; Tullies v. Brawley, 3 Minn. 283; Rhorer v. Terrill, 4 id. 407; Folsom v. Carli, 5 id. 333; Gregory v. Thadwell, 3 Cold. (Tenn.) 390; Wight v. Wallbaum, 39 Ill. 554.
    Inadequacy of price alone is not a sufficient cause to set aside a judicial sale. Morris v. Bishop of Durham, 1 Ves. 57;
      White v. Damon, 7 id. 30; Coles v. Tretharick, 9 id. 234; Ayres v. Baumgarten, 15 Ill. 444; Livingston v. Byrne, 11 Johns. 556; Tripp v. Cook, 26 Wend. 143; Williamson v. Dale, 3 Johns. Ch. 90; Dickerman v. Burgess, 20 Ill. 267; Garrett v. Moss, id. 549; Noyes v. True, 23 id. 503; Sowards v. Pritchett, 37 id. 521; Dutcher v. Leake, 44 id. 398; Hamilton y. Quimby, 46 id. 96; McMullen v. Gable, 47 id. 69; Comstock v. Purple, 49 id. 159; Duncan v. Sanders, 50 id. 475; Mixer v. Sibley, 53 id. 61; Pickering v. Driggers, 59 id. 65; Gibbons v. Bressler, 61 id. 110; Heberer v. Heberer, 67 id. 253; Watt v. McGalliard, id. 513; Thomas v. Hebenstreit, 68 id. 118; Morris v. Robey, 73 id. 462; Phelps v. Conover, 25 id. 312; Davis v. Dressback, 81 id. 293; Allen v. Sheppard, 87 id. 314; Reade v. Brooks, 3 Lit. (Ky.) 127.
    The laches of complainant is such as to bar him from obtaining the relief he seeks. Heath v. Jones, 12 Bradw. 493; Clark v. Ewing, 93 Ill. 572; Kern v. Strasberger, 71 id. 413; Winchester v. Grosvener, 48 id. 517; Smith v. Powell, 50 id. 21; Albro v. Dayton, 28 id. 325 ; Yates v. Monroe, 13 id. 219; Noyes v. True, 23 id. 503; Fergus v. Woodworth, 44 id. 374; Roberts v. Fleming, 53 id. 201; Pickering v. Driggers, 59 id. 65; Morris v. Robey, 73 id. 462; Hay v. Baugh, 77 id. 500; Williams v. Rhodes, 81 id. 571; Boyce v. Hampton, 16 Nev. 33; Rigney v. Small, 60 Ill. 416; Watt v. McGalliard, 67 id. 517.
    Messrs. Booth & Booth, for the appellee:
    It is the doctrine of this court that judicial sales will not be disturbed for mere inadequacy of price, unless so gross as to amount to a fraud, recognizing the fact that fraud may be implied from gross inadequacy of price alone. Hamilton v. Quimby, 46 Ill. 96; Roseman et al. v. Miller, 84 id. 299; Comstock v. People, 49 id. 158; Duncan et al. v. Sanders et al. 50 id. 476; Heberer v. Heberer, 67 id. 255; Cook v. Jenkins, 30 Iowa, 452.

      As to the nature of the irregularities in a judicial sale, which, in connection with inadequacy of price, will afford ground for equitable relief, we cite the following eases in addition to those already referred to: Day v. Graham, 1 Gilm. 435; Cowen v. Underwood et al. 16 Ill. 22; Dickerman v. Burgess, 20 id. 267; Garrett v. Moss, 20 id. 549; Ballance v. Loomis et al. 22 id. 82; Phelps v. Conover, 25 id. 272; Sowards v. Pritchett, 37 id. 521; Dutcher v. Leake, 44 id. 398 ; McLean County Bank et al. v. Flagg, 31 id. 290; Mathison v. Prescott, 86 id. 493; Bradley et al. v. Luce et al. 99 id. 234; Cassidy v. Cook et al. id. 385; Morris v. Robey, 73 id. 462.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in the circuit court of Cook county, brought by Henry Lovi, against George Berry, James H. Keeler and Alfred Jackson, to set aside a sheriff’s sale on two certain lots in Chicago, and for leave to redeem from such sale. The lots Nos. 76 and 77, of Hayes, Shelley & McGoffin’s subdivision of block 46, and trustees’ subdivision of section 7, township 39 north, range 14 east, were originally owned by one Edward Hall, of Philadelphia, Pennsylvania. On the 25th day of April, 1873, Hall sold and conveyed the lots to Stephen Palmer, for $8000. On the 7th day of- January, 1874, Palmer sold and conveyed the lots to Henry Lovi for the same price he had paid. Lovi, upon making the purchase, took possession of the property, made improvements thereon, and has continued in the possession ever since. On the 9th day of April, 1873, one Keeler, a real estate agent in Chicago, brought an action of attachment against Hall, to recover $250 for his services in finding a purchaser for the premises. The attachment was levied upon these lots. Subsequently a trial was had, which, on May 16, 1874, resulted in a judgment in favor of the plaintiff, Keeler, for $50. On the 10th day of October, 1874, a special execution issued on the judgment, under which the lots were sold on the 5th day of February, 1875, to Keeler, for the sum of $65.38,—the amount of judgment and costs. On the 1st day of March, 1875, Keeler assigned his certificate of purchase to Alfred A. Jackson, who, on the Silst of June, 1879, obtained a sheriff’s deed, which was recorded May 16, 1881. May 9, 1881, Jackson conveyed to Berry, who recorded “his deed May 15, 1881. Soon after the recording of the deeds an action of forcible detainer was brought to obtain possession of the lots, and Henry Lovi filed this bill to enjoin the prosecution of the suit, and to set aside the sheriff’s sale .and the subsequent deeds purporting to convey that title to Berry.

There are no rights of innocent purchasers involved in this case. As Lovi purchased and went into the possession of the premises before the judgment was rendered, his possession was notice to all persons of the title under which he héld the property. Jackson, who purchased the certificate of purchase, and Berry, who bought of Jackson while Lovi was in possession, have the same, but no greater, rights or equities than Keeler would have had if he had taken a deed in his own name and brought an action to recover the property. The attachment of Keeler was levied on the property before Hall sold to Palmer, and of course Keeler acquired a prior lien. The-question then presented is, whether the sale under the judgment which followed the attachment conformed to the law. If it did, the title of Hall passed under the sale. If it did not, Lovi acquired the title under the deeds from Hall to Palmer, and from Palmer to himself.

At the time of the sale under the attachment proceedings, it appears, from the evidence, that the two lots were- worth $8000. They were sold, under the judgment, for the small sum of $65.38. No argument is needed to show that the amount for which the lots were sold was grossly inadequate, and it is claimed that upon this ground alone the sale was properly set aside. This court has said, in a number of cases, that judicial sales will not be disturbed for mere inadequacy of price, unless so gross as to amount to a fraud. Duncan v. Sanders, 50 Ill. 475 ; Comstock v. Purple, 49 id. 160.

It will not, however, be necessary, in this case, to inquire whether the amount bid for the lots was so grossly inadequate as to amount to a fraud, as there is another ground, well sustained by the decisions of this court, upon which the decree of the circuit court may be sustained. The court, in the decree, found that the property had been sold en masse, and we are not prepared to hold that the finding was so clearly against the weight of evidence on this point as to justify a reversal of the decree. It is true that defendants introduced some evidence tending to show that the lots were sold separately, but the sheriff’s return indorsed on the execution fails to show that the lots were offered separately, or that they were sold separately, and the deputy sheriff (Galpin) who made the sale, although he was a witness in the case, was not called upon by the defendants to prove the fact that he offered and sold the lots separately. If the lots were offered separately, or sold separately, the deputy sheriff who made the sale doubtless knew' that fact, and if the property had not been sold en masse, it is but reasonable to suppose defendants, on the trial, would have settled that question beyond dispute by the testimony of that witness.

If, as found by the circuit court, the property was sold en masse, and the price paid was inadequate, as we have seen it was, can the sale be sustained ? In Phelps v. Conover, 25 Ill. 312, it was held, that where a farm is composed of several adjoining tracts of land, it would be the duty of the officer to offer each tract separately, and if the smallest subdivision will not sell, then add another subdivision to it, and so on until it has been offered in subdivisions, when, not selling, it would be but just to the creditor to sell it, on a reasonable bid, en masse, the officer making a full return of all the facts. In Morris v. Robey, 73 Ill. 462, the rule indicated was approved, and it was held that where, in addition to inadequacy of price, irregularities occur in the sale, such as selling several tracts or lots in gross without first offering them separately, or in lots of two or more and less than the whole, equity will interfere to set the sale aside. See, also, Bradley v. Luce, 99 Ill. 234, and Cassidy v. Cook, id. 385, where the same doctrine was announced.

There w7as no necessity, here, of sacrificing this property. The two lots were worth $8000, and had one been offered, no doubt a bid would have been made large enough to pay the small judgment upon which the lots were sold. But the ■lots were not offered separately, and the rule which has been established as the correct one to govern a sheriff in the sale of property was not observed. On the other hand, the property was sold en masse, at a price grossly, inadequate, and we are aware of no principle upon which such a sale can be sustained. Indeed, it would be a reproach upon the principles of equity to sustain a judicial sale of this character.

But it is said the complainant, Lovi, has been guilty of laches, and upon that ground the decree can not be sustained. It is true that Lovi w7as aware of the 2>endeney of the attachment suit when he bought the property, but he was informed by the agent of Hall (Mr. Coats) that it would be taken care of. In April, 1875, which wras more than a year before the redemption ex2>ired, Lovi, who was then about to make a payment on the property, called Coats’ attention to the attachment, when Coats took the abstract of title, which had been 2ireviously made, to the clerk’s office, and the assistant clerk (Eli Smith) wrote on the abstract, opposite the memorandum of the attachment suit, the following:

“This case ¡>i'osecuted to judgment May 16, 1874, and judgment satisfied in full by return of execution No. 5077, as appears from the records of this office.

„ Jacob Gross.

Upon receiving this from the agent of Hall, Lovi supposed that the attachment judgment had been paid and discharged, not having the least suspicion that the lots had been sold in satisfaction of the judgment. This belief of Lovi was no doubt strengthened by the conduct of the defendants in regard to the sale. As before observed, the lots were sold February 5, 1875. Under this sale the purchaser was entitled to a deed May 6, 1876, and yet no deed was taken until June 21, 1879, and the deed was not recorded until May 16, 1881. It is true that the law did not compel a deed to be taken out sooner than it W'as, or compel the purchaser to place the deed on the record; but why conceal the fact from the record that the title to these lots had passed under a judicial sale, unless it was to gain some undue advantage over Lovi, who was spending his money each year in payment of taxes and improvements on the property, in entire ignorance of any adverse title ? Lovi had no actual knowledge whatever that the lots had been sold under the judgment, and under all the circumstances we do not think laches can be imputed to him.

It is also contended that the court erred in refusing to allowr the sheriff to amend his return on the execution during the trial, in order to show that the execution was received by him October 20, 1874,—before the life of the execution expired. The execution was issued October 10, 1874. The property was advertised by the sheriff January 15, 1875,— seven days after the life of the execution ended,—and the sale occurred February 5. This being a special execution, issued upon a judgment rendered in an action of attachment, a formal levy on the land under the execution was perhaps not required, as a levy had been made under the writ of attachment when it was issued; but unless the execution came into the hands of the sheriff before the expiration of ninety days from the time it was issued, it had lost its vitality, and the sheriff had no right to proceed under it. But if the return had been amended, in the view we have taken of the ease the result would have been the same, and hence it is not deemed important to consider that question.

Other questions have been discussed in the argument, but we do not deem it necessary to consider them here.

We are satisfied that the decree of the circuit court, upon a careful consideration of the whole record, is right, and it will he affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    Johanna Lennahan v. Mary O’Keefe et al.

      Filed at Ottawa November 20, 1883.

    1. Alimony—power of court to declare its termination. Under the statute the circuit court is invested with ample power to declare the termination of all alimony decreed to a wife on divorce, upon the occurrence of facts reasonably justifying such declaration, such as the death of the husband.
    2. So where, after a decree of divorce, the husband (the defendant) was required to pay his wife $400 per annum, payable semi-annually, as alimony, “until the further order” of the court, and after his death his widow filed her bill for the assignment of dower in his lands, and for partition, he leaving no children, and the administratrix of his estate also filed a cross-bill making the widow, and the intestate’s heirs at law, and the claimants of liens on the real estate, defendants, praying for an account of the debts against the estate, etc., that dower be assigned to the widow, that her decree for alimony be modified or cancelled,-and for partition, the court, on the hearing, entered a decree giving the widow dower, and declaring that her alimony ceased at the death of her husband; and ordered partition among the heirs: Held, that under the reservation in the decree giving alimony, as well as under the statute, the court was authorized to declare the alimony terminated, and that there was no error in so ordering.
    3. Same—terminates on death of husband. In the absence of language in a decree giving a wife alimony, showing, unequivocally, an intention to bind the heir of the husband after his death, the allowance of alimony will terminate with the life of the defendant. It can not be presumed that the payment of alimony is made a charge upon the heir; but that fact, if it exists, must affirmatively appear.

      4. Dover—in property leased—from what time rents set off. On bill for the assignment of dower, the court, in decreeing the dower, ordered that the proper proportion of the rents be set off to the dowress from the date of the decree: Held, error, as she should have such rents from the filing of her bill; but as this could be corrected in the court below in finally adjusting the accounts of the parties, the decree was not reversed for this error.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of White-side county; the Hon. John Y. Eustace, Judge, presiding.
    Mr. J. E. McPherran, and Mr. C. J. Johnson, for the appellant :
    The view that 'the alimony of appellant abated on the death of John Lennahan is not supported by equitable reasons. But does it, as a matter of law, cease at the husband’s death ?
    In Dinet v. Eigenmann, 80 Ill. 275, it is held that a sum awarded to a wife after divorce becomes a debt from her former husband, and upon her death before payment thereof the sum due her passes to her legal representatives. See, also, Miller v. Clark, 23 Ind. 870.
    The statute authorizes such alimony as, may be just and proper, and it can not be unjust and improper to compel a husband whose wife has been driven from her home by his cruelty, and defilement of the marriage bed, to provide her a suitable support for the remainder of her life, instead of permitting him to dispose of the property to strangers at his death, leaving her entirely destitute. Burr v. Burr, 10 Paige, 20.
    In some of the States, as in New York, the courts hold that where a divorce a vinculo is granted for the fault of the husband, the alimony should continue to the wife for and during her natural life. Miller v. Miller, 6 Johns. Ch. 93; Barrere v. Barrere, 4 id. 187; Pickford v. Pickford, 1 Paige, 274.

      The Supreme Court of Illinois has not expressly passed upon this question in any case reported. It has held, however, in eases where there was no evidence that the wife brought any money to her husband at marriage, or where the parties to the suit had agreed to the decree, but simply where the wife had, by her labor and industry, contributed materially to the acquisition of property, that it was proper to award alimony in gross, and to make it payable in several installments within a short period. Dinet v. Eigenmann, 80 Ill. 274; Draper v. Draper, 68 id. 17; Plaster v. Plaster, 47 id. 290; Robbins v. Robbins, 101 id. 417.
    It was also held that it was not error for the circuit court, in decreeing a divorce at the suit of the wife, to assign to her, as alimony, a part of the real estate of the husband. Armstrong v. Armstrong, 35 Ill. 109; Ross v. Ross, 78 id. 402; Becker v. Becker, 79 id. 418.
    The claim that alimony abates at the husband’s death is at variance with the letter and spirit of these decisions.
    Messrs. Bennett & Green, for the appellees:
    It is assigned for error that the court erred in not assessing the damages for appellant’s right of dower from the filing of her bill, and in finding that her alimony abated at her husband’s death. In this case no application in the pleadings, or otherwise, was made to have her damages assessed: Besides, she is in no way injured, as the decree orders the land sold and the proceeds to be brought into court for distribution. Before that is done she can have her damages ascertained.
    It has been many times held by this court that under proper circumstances, as, when the wife brought a considerable amount of property to the husband at the time of the marriage, which had been included in property held by him at the time of the divorce, that real estate, personal property, or a sum of money in gross, should be given her in' satisfaction of all her claims against her husband. (Ross v. Ross, 78 Ill. 402.) And undoubtedly the same course might properly be pursued when the entire property of the husband consisted of personalty, or the circumstances of the case indicated that the payment of a yearly allowance might be wrongfully withheld or delayed. (Burr v. Burr, 10 Paige, 20.) But in all other cases the court has held that an allowance, payable at short and regular intervals, is the proper practice. Von Glahn v. Von Glahn, 46 Ill. 134; Ross v. Ross, 78 id. 402.
    It is true that in several instances the allowance has been fixed for the period of the life of the divorced wife, but in such cases it has usually, in this State, been so decreed in lieu of the dower interest held by her in the husband’s real estate. Becker v. Becker, 79 Ill. 532.
    The alimony in this case is not in lieu of dower, nor is the allowance ordered to extend for apj)ellant’s life, nor is a judgment for a fixed sum in lieu of alimony. Plaster v. Plaster, 47 Ill. 290.
    Alimony, strictly defined, is “a provision for the support of the wife, to continue during the joint lives of the parties.” 2 Bishop on Marriage and Divorce, see. 351; Wallingford v. Wallingford, 6 Har. & J. 485; Parsons v. Parsons, 9 N. H. 309; Wooldridge v. Lucas, 7 B. Mon. 49; Clark v. Clark, 6 Watts & S. 85.
    Such alimony can not be ordered for the term of the wile’s life, because it is a maintenance to her, while the husband’s duty to maintain her ceases at his death. 2 Bishop on Marriage and Divorce, (6th ed.) sec. 428; Lockridge v. Lockridge, 3 Dana, 28.
   Mr. Justice Scholfield

delivered the opinion of the Court:

By a decree of the circuit court of Whiteside county, rendered on the 22d of June, 1881, Johanna Lennahan was divorced from her husband, John Lennahan, for his fault, and allowed alimony. Afterwards, on the loth of June, 1882, he died intestate, leaving no child or children, but only certain collateral relatives surviving him as his heirs at law. The original bill in the present case was filed by the widow, Johanna, against those heirs at law and certain claimants of liens, for the assignment of dower, and for partition. Mary O’Keefe, one of the heirs at law of Lennahan, and administratrix of his estate, filed her cross-hill in the case, making Johanna Lennahan, the other heirs at law, and the claimants of liens upon the real estate, defendants, praying for an account of the debts against the estate, etc., that dower be assigned to Johanna, that her decree for alimony be modified or cancelled, and for partition. Issues were made on the allegations of these bills, the cause was heard by the court, and a decree rendered declaring that Johanna was endowed of a third part of the lands; that the heirs at law were entitled to designated interests, subject to mortgage liens, unpaid alimony due Johanna, and the debts of the decedent; that the alimony decreed to Johanna ceased at the death of her husband, and that the lands were discharged from that lien, except .in so far as there was unpaid alimony which had accrued in the lifetime of Lennahan. Commissioners were appointed to assign dower and make partition in accordance with the decree. The commissioners subsequently reported, after assigning dower to Johanna in certain property particularly described, that the lands were insusceptible of division. The court confirmed this report, and, among other things, decreed that Johanna have the proper proportion of the rent of the premises set off to her as her dower, from the date of the decree, etc. On appeal to the Appellate Court for the Second District the decrees of the circuit court were affirmed, and this appeal is from that affirmance.

The first and most important question discussed in the briefs before us is, did the court err in decreeing that the alimony ceased upon the death of Lennahan ?

The decree allowing the alimony is in these words: “It is ordered, adjudged and decreed by the court, that the defendant pay to the complainant the sum of $400, annually, for each and every year, commencing from the date hereof, payable as follows, to-wit: the sum of $50 in forty days from date hereof, the sum of $66.66 on the first day of January, 1882, and from and after January, 1882, until further order of this court, the said’’defendant shall pay to said complainant, on July 1, 1882, the sum of $200, and on the first day of January, 1883, the sum of $200, and a like sum of $200 on the first day of January and on the first day of July of each year. ” A further provision authorizes the issuing of execution for installments in arrears, and makes the decree a lien on the real estate.

It will be observed this allowance is, by the express terms of the decree, only “until further order of this court.” Our statute provides: “When a divorce shall be decreed, the court may make such order touching the alimony and maintenance of the wife * * * as, from the circumstances of the parties and the nature of the ease, shall be fit, reasonable and just, and in ease the wife be complainant, to order the defendant to give reasonable security for such alimony and maintenance, or may enforce the payment of such alimony and maintenance in any other manner consistent with the rules and practice of the court. And the court may, on application, from time to time, make such alterations in the allowance of alimony * * * as shall appear reasonable and proper.” (Rev. Stat. 1874, chap. 40, sec. 18.) This would seem to invest the court with ample power to declare the termination of all alimony, upon the occurrence of facts reasonably justifying such a declaration.

We are of opinion that neither this section, nor the reservation in the decree is consistent with the position contended for by counsel for appellant,—that upon the death of Lennahan the control of the court over the question of alimony ceased, and the decree became thereafter absolute against the estate during the life of appellant. The fact, alone, of the death of the defendant, in many instances would be a most cogent reason'for the interposition of the court to change the terms of such a decree. We have held the court may, under proper circumstances, make an allowance for alimony once for all, and, also, that real estate may be decreed absolutely to the complainant, but that neither of*these is justifiable only under exceptional circumstances, which have been pointed out. But that is not the question here. Here the payment of alimony is ordered to be made in. installments, and the right of revision of the question is expressly reserved, and the only question -is, what effect has the death of the defendant upon such a decree ? In the absence of language showing, unequivocally, that the intention wras to bind the heir by such a decree, we are of opinion that it does not do so, but that its life terminates with the life of the defendant.

By the English law, alimony was but an allowance during the joint lives of the husband and wife, or so long as they should live separately. (Wallingford v. Wallingford, 6 Harris & Johnson, 438 ; Lookridge v. Lockridge, 3 Dana, 28; Clark v. Clark, 6 Watts & S. 85; 1 Blackstone’s Com. 441.) And, notwithstanding alimony in this country is, generally, the allowance made to the wife out of the husband’s estate after a decree of divorce a vinculo matrimonii, and is, by statute, in many respects modified from what it was in ease of divorce a mensa et thoro, in England, we know of no- case in which it has been held to be a debt continuing after the death of the husband against the heir, but directly the contrary was held in O’Hagan v. Executors of O’Hagan, 4 Iowa, 509, and, as we think, upon sufficient reason. Bishop, in his work on Marriage and Divorce, (6th e'd.) sec. 428, says: “So, by the unwritten rule, alimony can not be ordered for the term of the wife’s life, because it is a maintenance to her, while the husband’s duty to maintain her ceases at his death.”

Granted that, under our statute, the power of the court to allow alimony is broader than it was in England, still, until the power is exercised by the court its mere existence is, to the present question, unimportant, and when it is exercised it must and can only be through its decree, and the decree must, upon its face, show the extent to which the court has exercised, or assumed to exercise, such power. The question in such case is, simply, does the decree, by its terms, charge the payment of the alimony upon the heir? We cannot presume that it does so. The fact, if such it is, must affirmatively, and as we have before observed, unequivocally, appear. Being of opinion that no such order has been made, it follows the conclusion of the court below in that regard was right. We may add, that it would require an extraordinary case to justify the postponement of creditors and heirs to the payment of both dower and alimony, currently, during the life of the divorced wife. In very many cases such an order would be equivalent to an entire appropriation of the husband’s estate.

We are of opinion, however, the court below erred in decreeing that the proper proportion of the rents be set off to her from the date of the decree. It should have been from the date of filing her bill. But this may be corrected by the future decree of the court in finally adjusting the accounts of the parties in interest, without a reversal of the cause. That modification and correction in the decree below will be so made, and the judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Chiee Justice Sheldon

text:
    James W. Prior et al. v. The People ex rel. Seipp.

      Filed at Ottawa November 20, 1883.

    1. Taxes— whether delinquent list is filed in time. Where the delinquent list was filed in the county court on July 4, and the first day of the next term of said court was July 9, it was held, that the list was filed five days before the commencement of the term, and in time to give the court jurisdiction at such term to render judgment against the lands for special assessments. The wording of the statute requiring “at least five days” to intervene, will not change the rule of construction so as to require five full days at the shortest.
    2. Time—how computed. In computing the time within which an act provided by law is to be done, Sunday is to be excluded only when it is the last day.
    Appeal from the County Court of Cook county; the Hon. Richard Prendergast, Judge, presiding.
    Messrs. Mason Brothers, for the appellants:
    The county court had no jurisdiction of the case, because the delinquent list was not filed in apt time. The statute requires the delinquent list to be completed at least five days before the commencement of the term at which application.for judgment is to be made. (Rev. Stat. chap. 120, sec. 188.) This means that the list must be filed in court at that time.
    The filing of the delinquent list is the foundation of the court’s jurisdiction. Rev. Stat. chap. 120, sec. 190; Morrill v. Swartz, 39 Ill. 108.
    This point being jurisdictional, cannot be remedied by the Revenue law. Rev. Stat. chap. 120, sec. 191.
    Where the delinquent list has been filed within five days of the term, the proper course is to postpone the application to another term, so that at least five days may intervene between the filing and the application for judgment. Stilwell et al. v. People, 49 Ill. 45.
    The wording of the statute, “at least five days,” shows that five full days are required, at the shortest.
    The time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last' is Sunday, and then it also shall be excluded. (Rev. Stat. chap. 131, sec. 1.) Now, in the case at bar, the delinquent list was filed July 4, 1883, and the application for judgment was made on the first day of the July term,—July 9, 1883. July 5th, 6th, 7th and 8th, only make four days. Excluding Sunday, only leaves three days. In either case the five days’ requirement of the statute, on which the jurisdiction of the court depends, has been disregarded.
    Mr. A. W. Green, for the appellee:
    Prior to 1879, section 188 of the Revenue act required the county collector to file the delinquent list with the county clerk at least five days before the commencement of the term. In 1879 this section was amended, and as amended only requires the collector to transcribe the delinquent list in a book five days before the commencement of the term. There is nothing in this record to show that this provision of the statute has not been complied with. But even if the statute required the delinquent list to be filed five days before the commencement of the term, it would seem that the list was filed in time. It was filed July 4. The. first day of the term was July 9. Excluding the first day, and including the last, as provided by section 1, chapter 131, of the Revised Statutes, we have just five days.
    It is said, however, that Sunday, July 8, must be excluded. But the statute says that Sunday must be excluded when it is the last day. In this ease fhe last day is not Sunday, July 8, but Monday, July 9. Sunday, therefore, should not be excluded.

      The objection could not be sustained, even if the list had not been filed until the commencement of the term. This precise point was ruled in Leindecker v. People, 98 Ill. 21.
   Mr. Chiee Justice Sheldon

delivered the opinion of the Court:

This is an appeal from a judgment of the county court of Cook county, for the sale of certain real estate for the nonpayment of a special assessment.

The only point made by appellants is, that the county court had no jurisdiction because the delinquent list was not filed five days before the commencement of the term of court at which application for judgment was made; that the filing of the delinquent list is the foundation of the court’s jurisdiction, and, being jurisdictional, can not be remedied by section 191 of the Revenue law. The delinquent list appears to have been filed in time,—five days before the commencement of the term of court at which application for judgment was made. It was filed July 4. The first day of the term óf the court was July 9. It is the statutory provision that “the time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last is Sunday, and then it also shall be excluded.” (Rev. Stat. 1874, p. 1012, sec. 1, clause 11.) We do not think the. wording of the statute as to the time of filing the delinquent list, “at least five days,” should change the construction so as to require five full days at the shortest, as is insisted.

One of the days, July 8, being Sunday, it is said that should be excluded. But the statute only says that Sunday shall be excluded wffien it is the last day.

The judgment" will be affirmed.

Judgment affirmed.


author: Mr. Justice Ceaig

text:
    John Zimmerman v. Augustus W. Cowan.

      Filed at Ottawa November 20, 1883.

    1. Contested election—time for filing the petition—as to what time in the day. Under section 113, of chapter 46, Eev. Stat. 1874, entitled “Elections,” providing that in case of the proposed contesting of an election the person desiring to contest such election shall, within thirty days after the person whose election is contested is declared elected, file with the clerk of the proper court a statement, in writing, of the grounds upon which he will contest the election, the contestant is not restricted, as to the time in the day on which he may file such statement, to the hours during which the clerk is required by statute to keep his office open,—that is, from eight o’clock A. M. to six o’clock P. M,—but the “day” contemplated by the statute is an ordinary day of twenty-four hours, which does not expire until twelve o’clock, midnight.
    2. So where it was proposed to contest the election of a person who had been declared elected to the office of county treasurer, and the statement in writing of the grounds of the contest was filed with the clerk of the proper court on the last day limited by the statute, but not until after six o’clock P. 1M. of that day, it was held, the filing of the statement was in apt time.
    3. Same—time within which to issue the summons—ivhat is the commencement of the suit. In a proceeding to contest such an election, the filing with the clerk of the statement in writing, as required by the statute, is the commencement of the suit, so that it is not essential, in order to preserve the right of the contestant to proceed, that the summons should be issued within the thirty days limited for the filing of the statement, but it may as well be issued after that timé has expired.
    4. Time—what constitutes a day. Where a person is required to take action within a given number of days in order to secure or assert a light, the “day” is to consist of twenty-four hours,—that is the popular, and the legal, sense of the term,—so that if the act be done on the last day limited, if it be done at any time before twelve o’clock at midnight, that will be sufficient.
    5. Oeeice hours—of clerics of courts. The 6th section of chapter 25, Eev. Stat. 1874, entitled “Clerks of Courts,” provides that the clerks of certain courts therein named “shall keep their offices open, and attend to the duties thereof, from eight o’clock A. M. to six o’clock P. M. of each working day.” This is to be understood as requiring such clerks to keep their offices open at least during the hours thus designated, but not as in any way affecting their right or power to transact official business during any other hours in the day.

      6. Bill op exceptions—whether necessary. The only purpose of a bill of exceptions is to preserve in the record such matters as transpire in the progress of a trial, that would not otherwise become a part of the record. The pleadings in a cause, and the judgment of the court as to the sufficiency of the pleadings, become matters of record without the aid of a bill of exceptions.
    Appeal from the County Court of Livingston county; the Hon. Robert R. Wallace, Judge, presiding.
    Mr. GL W. Patton, and Mr. L. L. Murdock, for the appellant :
    The first point raised by the defendant’s plea is, that appellant did not begin his contest within thirty days after the result of the election had been declared. The main fact relied on is, that the petition was not filed in the office of the county clerk until after six o’clock P. M. on the thirtieth day after the result of the election had been declared. When an act is to be done by a party within a certain number of days after a specified day, the party has the whole of the last day in which to perform the act. Ewing v. Bailey, 4 Scam. 420; Walter v. Kirk et al. 14 Ill. 55; Richardson et al. v. Ford et al. 14 id. 332; 2 Blackstone’s Com. 141.
    Fractions of a day are not usually considered in law. Faulds v. People, 66 Ill. 210.
    When a day is mentioned in a statute, a day of tiventyfour hours is meant. People v. Hatch, and People v. Dubois, 33 Ill. 9 ; Wharton’s Law Lexicon, title “Day. ”
    The other point raised by the plea is, that the cause was not docketed or the summons issued within the thirty days allowed to appellant. Section 113 of the Election law neither requires the cause to be docketed nor the summons to be issued within the thirty days specified. The proceeding to contest an election is a chancery proceeding, and subject to all the rules governing them. Dale v. Irwin, 78 Ill. 170; Talkington v. Turner, 71 id. 234.

      The filing of the bill is the commencement of a suit in chancery. Schroeder v. Merchants and Mechanics’ Ins. Co. 104 Ill. 71.

    Mr. A. B. Harding, and Mr. R. S. McIldtjff, for the appellee :
    The filing of a bill in chancery is not to be regarded lis pendens. Grant v. Bennett, 96 Ill. 522.
    The filing of a bill, and taking out subpoena thereon, and mailing a bona fide attempt • to serve it without delay, is the commencement of the suit for the purpose of preventing the operation of the Statute of Limitations, if the suit is after-wards prosecuted with reasonable diligence. Hayden v. Buclin, 9 Paige, 514; Webb v. Pell, 1 id. 564; Evans v. Galloway, 20 Ind. 479; Mason v. Chaney, 47 N. H. 24; People v. Clark, 33 Mich. 112; Jewett v. Green, 8 Greenlf. 447.
    Section 6, chapter 113, of Hurd’s Stat. page 261, provides that clerks of courts “shall keep their offices open, and attend to the duties thereof, from eight o’clock A. M. to six o’clock P. M. of each working day. ” From this it seems the clerk can not be compelled to keep his office open or attend to the duties of the same either before or after the hours so designated, and it would seem to follow that he can do no act to bind third parties after the day ends, provided such act is required by law to be done on that day.
    Webster defines a day thus: “The part of the twenty-four hours when it is light, or the space of time between the rising and setting sun, called the artificial day; the whole time or period of one revolution of the earth on its axis, called the natural day. ” Bouvier defines it substantially the same, and also, “it is also used to denote those hours during which business is ordinarily transacted.”
    A day for a common laborer is the period of time required by the custom of the country for that kind of work. 3 Esp. 121; 5 Hill, 437.

      A commercial day for duration depends, also, upon custom, and the understanding and practice of commercial paen. Grosvenor v. Magill, 37 Ill. 239; Skelton v. Dustin, 92 id. 54.
    Motions entered, affidavits and other papers, and the decision of the court thereon, will not be considered in an appellate court unless incorporated in a bill of exceptions. Earll v. People,73 Ill. 331; Vanlandingham v. Fellows, 1 Scam. 234; Saunders v. McCollins, 4 id. 420; McGill v. Brown, 98 Ill. 240; Barger v. Hobbs, 67 id. 592; Bulger v. Hoffman, 45 id. 352; Fanning v. Russell, 81 id. 398; Casey v. Harvey, 14 id. 45; Blair v. Ray, 103 id. 615; Boyle v. Levings, 28 id. 314; Drew v. Beall, 62 id. 164; Force Manf. Co. v. Horton, 74 id. 310.
   Mr. Justice Ceaig

delivered the opinion of the Court:

On the 9th day of November, 1882, Augustus W. Cowan was declared elected county treasurer of Livingston county. Zimmerman, the defeated candidate, filed a petition in the county court of Livingston county, on the 9hh day of December following, to contest the election, under section 113, chapter 46, Eev. Stat, 1874, page 464, which declares: “The person desiring to contest such election shall, within thirty days after the person whose election is contested is declared elected, file with the clerk of the proper court a statement in writing, setting forth the points on which he will contest the election, which statement shall be verified by affidavit in the same manner as bills in chancery may be verified. ” Section 114 provides: “Upon the filing of such statement summons shall issue. ” To the petition Cowan interposed a plea in bar, in which he in substance set up that Zimmerman did not begin his contest within thirty days after he was declared elected; that the petition was not filed until after business hours, on the 9th day of December, after the hour of six o’clock P. M. of that day. The plea in bar, on motion, was set down for a hearing, and upon argument the court held the plea sufficient, and entered an order dismissing the petition.

It is conceded that if the petition had been filed • before six o’clock P. M. on December 9, it would have been within the thirty days prescribed by the statute; but it is contended that the thirty days expired at six o’clock,—the time the statute allows the clerk to close his office. This position is predicated mainly on section 6, chapter 25, Piev. Stat. 1874, which provides that clerks of courts “shall keep their offices open and attend to the duties thereof from eight o’clock A. M. to six o’clock P. M. of each working day. ” This provision of the statute requiring the clerks to keep their offices open from eight in the morning to six in the afternoon was enacted in 1874. Prior to the act to revise the law in relation to clerks of courts, approved March 25, 1874, we had no statute fixing an hour when the office should be opened or closed. Before that time the statute required the clerks to keep their offices at the county seat, to take an oath faithfully and impartially to discharge all the duties pertaining to the office, and to enter into bond conditioned for the faithful discharge of the duties of the office; but as to the time of opening or closing the office the statute was silent. It was doubtless supposed that the oath of office and the bond were a sufficient guaranty that the office would be open at all reasonable hours for the transaction of business, and such was the ease for many years, as we must presume, or the legislature would have acted on-the subject sooner.

But the question presented is, what was the object of the amendment adopted in 1874? Had the county and circuit clerks kept their offices open more hours in the day than the wants of the people demanded? Were the accommodations of the public in these offices so much more than the actual necessities demanded that the legislature was called upon to act, and declare that these offices should not be open for the transaction of business more than ten hours in twenty-four ? Or, on the other hand, had the clerks failed, in some counties, to keep open the offices a sufficient number of hours to enable the people to transact their business, so that the legislature was called upon to provide by law that these offices should at least be open at eight in the morning and remain open until six in the afternoon? We believe the latter view to be the more reasonable, and the one we are inclined to adopt. There is nothing in the act which seems to have been intended to prevent a clerk from opening his office at six in the morning and keeping it open until twelve at night, for the transaction of business, if he saw proper; but the purpose of the law, no doubt, was to compel the clerks, under all circumstances, to open the office as early as eight in the morning and not to close before six in the afternoon. The mere fact that a clerk is required to keep his office open from eight A. M. to 6 P. M. can not, under any reasonable construction, be held to render the official act of the clerk before or after those hours illegal. Under the statute we think the clerk may perform any official duty, if he desires, before eight o’clock A. M. or after six o’clock P. M., as well as between those hours. Indeed, it id often necessary, in order to a proper dispatch of business, for courts to hold sessions at night. This can not be done without a clerk, and if the clerk has no authority to. perform official duties after six o’clock, courts would be powerless to transact much of the business upon the dockets. Surely the legislature did not intend by the act to retard, hinder or delay the business in courts, and yet if the construction contended for should be adopted such would» be the practical effect of the law. When the legislature declared that the person desiring to contest the election shall, within thirty days after the person whose election is contested is declared elected, file with the clerk a statement, in writing, setting forth the points, a day, as here used, was intended as an ordinary day of twenty-four hours. Had a shorter period been contemplated, or a day other than an ordinary day been intended, other and different language would have been employed to express that intention. Here the statement was required to be filed with the clerk within thirty days. This included the whole of the 9th day of December, which would-not expire until midnight of that day. The People v. Hatch, 33 Ill. 136, is a case in which the question arose as to the legal meaning of a day, and it was expressly held that the popular, as well as the legal, sense of a day was twenty-four hours. If we are correct in this view, the statement filed by the contestant was within the time required by law.

It is also contended that the right of action is barred because summons did not issue on the day the statement in writing was filed. In Dale v. Irwin, 78 Ill. 170, it-was held that the proceeding to contest an election is to all intents and purposes a chancery proceeding, and subject to all the rules which govern such proceedings. The 4th section of the Chancery Code provides that the mode of commencing suits in chancery shall be by filing a bill of complaint with the clerk of the proper court, setting forth the nature of the complaint. This course was pursued here, and the fact that the clerk failed to docket the cause and issue the summons on the day the statement in writing was filed, did not deprive the contestant of the benefit of the right which the statute conferred on him when he filed his statement in writing. Under the statute the filing of the statement in writing with the clerk was the commencement of the suit, although the summons was not on that day issued.

It has, however, been suggested that as no bill of exceptions is in the record, the questions we have considered do not properly arise. The only question presented by the record is as to the sufficiency of the plea interposed by Cowan. No bill of exceptions is necessary to preserve the plea in the record, as all the pleadings in the case are a part of the record. The only object of a bill of exceptions is to preserve in the record such matters as occur during the trial which are not a part of the record. The plea was set down for argument, and the court sustained it. No bill of exceptions was required to review this action of the court on the plea.

The judgment of the county court -will be reversed, and the cause remanded.

Judgment reversed.


author: Mr. Justice Mulkey

text:
    William O. Grover v. Peter L. Hale et al.

      Filed at Ottawa November 20, 1883.

    1. Trust deed—sale made by an agent of trustee, invalid and voidable. Where a power of sale is given to a trustee in a deed of trust to sell the premises therein conveyed, upon default of payment of the.money secured thereby, the sale must be made by the trustee, and if made by his agent or attorney, he not being present, it will be invalid as between the immediate parties, and majf be set aside in equity.
    2. Same—who is a party that may question sale under power in trust deed. A purchaser of the equity of redemption at sheriff’s sale on execution, against the party who had previously given a trust deed on the same property, succeeds to the former owner’s rights after he receives a sheriff’s deed, and may have a sale under the trust deed set aside if it is made by a mere stranger, and not by the trustee.
    3. Same—who is party to trustee’s sale. If the grantor in a trust deed has disposed of his equity of redemption, he can not be, in any sense, a party to the trustee’s sale, or a sale made by one acting for him, but his assignee will be regarded as such party; and so it would be if both the original parties had assigned their interests.

      i. Purchaser—who is a bona Jlde innocent purchaser that is entitled to protection in equity. A purchaser of land from one deriving his claim under a trust deed and trustee’s sale to him, before he can defend against a bill filed to set aside the trustee’s sale must make it appear that his purchase was made in good faith and for a valuable consideration, and that the consideration was paid before notice of the defects in the title or irregularity in the trustee’s sale. If the consideration is not paid before notice, he is not an innocent purchaser.

      5. Same—when chargeable with notice. Where a husband and wife execute a trust deed to secure a debt óf the former, the latter', as a party to the deed, is chargeable with notice that no one but the trustee himself, or his legal representative, has the right to sell under it.
    Writ of Error to the Circuit Court of Jo Daviess county; the Hon. William Brown, Judge, presiding.
    Mr. E. L. Bedford, for the plaintiff in error:
    Shissler was a stranger to the trust, and acted under delegated power of the trustee (Ollinger) in his absence from this State. This sale did not bar complainant’s equity of redemption. Warnecke et al. v. Lembca, 71 Ill. 92; Flower v. Elwood, 66 id. 449; Hamilton v. Lubukee, 51 id. 419; Chambers et al. v. Jones, 72 id. 278.
    In a case where all questions of fairness or regularity were removed, Chancellor Kent said: “To allow such a sale to stand would open the door to a very lax and dangerous practice.” Heger v. Deaves, 2 Johns. Ch. 154.
    A purchaser under a trust deed containing a power of sale is chargeable with notice of defects and irregularities attending the sale, and their'effect can not be evaded by him. Gunnell et al. v. Cockerill et al. 84 Ill. 319.
    The purchaser knew facts which were sufficient- to put a purchaser on inquiry, and is chargeable with all facts which the inquiry would have disclosed. Redden et al. v. Miller et al. 95 Ill. 345 ; Russell et al. v. Ranson, 76 id. 170.
    The rule prevails with us that the duty devolves upon .the defendants to establish not only that they have a conveyance legal in form, but that they have actually paid for the land. It is not sufficient even that they have secured the payment of the purchase money,—they must have paid it in fact, before they had notice of the complainant’s equitable title. Brown v. Welch, 18 Ill. 343; Redden et al. v. Miller et al. 95 id. 345; Moshier v. Knox College, 32 id. 164.

      Mr. J. W. Luke, for the defendants in error:
    While Mrs. Hale has paid nothing of the purchase money, yet relying on her purchase, and being ignorant of the fact that the trustee was not present at the sale, she has incurred a personal liability of $400 or $500 for materials used in improving the lot, and has paid about $100 for labor on the building.
    The complainant is only a judgment creditor of some of these parties, and a stranger to the trust deed. The parties to that are satisfied, and make no complaint. The complainant -was not damaged in any way by reason of the sale being-made in the manner it was.
   Mr. Justice Mulkey

delivered the opinion of the Court:

On the 18th day of November, 1869, Peter Hale and Jacob Burhyte, being owners of the lot in controversy, situate in Dunleitli, this State, conveyed the same in trust to John Ollinger, to secure their five promissory notes of that date, for the sum of $500 each, payable to the order of Nelson M. Brett, in one, two, three, four and five years, respectively, one of which, in due course of business, for value, came to the hands of John M. Miller. Grover & Baker, on the 19th of December, 1877, recovered a judgment against Hale and Burhyte, which became a lien upon the equity of redemption in said lot, and the same was sold under an execution issued on said judgment to Grover & Baker, who assigned the certificate of purchase to the plaintiff in error, William 0. Grover, and the latter, on the 14th of June, 1880, received a sheriff’s deed for the premises. On the 16th of August, 18S0, the lot was sold under the trust deed, at the instance of Miller, to satisfy, an unpaid balance of $356 on the note held by him, as above mentioned, and the same was struck off to him at $200, he being the only bidder present at the time of the sale. Miller received a deed for the property, purporting to have been executed by Ollinger on the day last mentioned, though it is evident if made .on that day it must have been done in St. Louis, Missouri, and not here, for the evidence clearly shows he was in the latter place at the time of the sale, and that the sale itself was conducted by Louis Shissler for Ollinger, the trustee; and it further appears the deed was acknowledged by Ollinger in St. Louis, the 4th of September, being nineteen days after the sale, as appears from the acknowledgment itself. On the 1st of June, 1881, Miller sold the property to Margaret J. Hale for $224, payable in three installments, viz., $75 in one year, $75 in two years, and $74 in three years from date of purchase, with eight percent interest thereon. Nothing has ever been paid on the purchase, though Mrs. Hale swears she has spent about $100 in improving the property, but can not tell the exact amount. The evidence tends to show the yearly value of the premises is $60 or $75.

The present bill is filed to correct certain errors in the sheriff’s deed to Grover; to set aside the so-called trustee’s sale; to have Ollinger’s deed to Miller declared void; to have the bond for a deed from Miller to Margaret Hale set aside as against the equity of redemption of plaintiff in error; for an account of what is due Miller under the trust deed, and to redeem therefrom. The court, by its decree, awarded the relief prayed, in so far as it related to the correction of the sheriff’s deed, but found, as a matter of fact, the proofs failed to sustain the charge in the bill that the sale under the trust deed was made by Shissler as agent of Ollinger, and therefore entered a decree denying the other relief sought by the bill, from which decree Grover appeals to this court.

By what process of reasoning the circuit court reached the conclusion this sale was not made by Shissler as the agent of Ollinger, is not apparent. Miller and Shissler were the only persons at the sale, and both of them swear positively that Ollinger was not there. The latter testifies upon this point in these words: “That said John Ollinger not being able to be present to conduct the sale in person, being a resident of St. Louis, Missouri, authorized and directed me to act as his agent or attorney to conduct said trustee’s sale, ”—and there is nothing in the record that even tends to contradict these witnesses, but on the contrary, there are independent circumstances which strongly corroborate their statements. We are therefore of opinion the conclusion of the circuit court upon this branch of the ease is wholly unwarranted.

That a sale of this character is invalid between the immediate parties, is too well settled to admit of controversy. (Flower v. Elwood, 66 Ill. 449; Hamilton v. Lubukee, 51 id. 419; Warnecke et al. v. Lembca, 71 id. 92; Chambers et al. v. Jones, 72 id. 278.) Indeed, this general proposition is not denied, but it is claimed the plaintiff in error is not within the rule to be regarded as an immediate party. No authority is cited in support of this proposition, and we are confident none can be found. By the sheriff’s deed the plaintiff in error succeeded to the equity of redemption in the mortgaged premises, and thereby acquired all the rights of ■ the mortgagors with respect to the lot, one of which, unquestionably, was the right to have it sold by the trustee, and not by a mere stranger, as was done in this case. The immediate parties, within the meaning of the rule-, as we understand it, are the owners, respectively, of the equity of redemption and of the mortgage security, and the purchaser at the sale. If a party to the original transaction has disposed of his interest either in the mortgage or the equity of redemption, he can not, in any sense, be said to be a party to the trustee’s sale, or a sale made by one acting for him, but his assignee will be regarded as such party,—and so it would be if both of the original parties had assigned their interest. There is clearly nothing in this point.

Finally, it is claimed that Mrs. Hale is an innocent purchaser, and as such should be protected. To maintain this defence she must show, or it must otherwise appear, that she purchased without notice of the irregularity in the sale, that her purchase was made in good faith and for a valuable consideration, and that the consideration was paid before notice of the defect in the title. Outside of the conclusive fact that no part of the purchase money has been paid, there are a number of circumstances which, to say the least of it, cast a strong suspicion on her title. In the first place, it is to be noted that she is the wife of Peter Hale, through whom both parties claim, and she is one of the original parties to the trust deed itself, and is therefore chargeable with notice that no one but the trustee himself, or his legal representative, had the right to sell under it. Again, notwithstanding her denial of such notice, when the whole of her testimony is considered in connection with all the circumstances in the case, it tends strongly to show she knew that Ollinger did not personally superintend the sale. Finally, it is difficult to repel altogether the conviction that the sale by Miller to Mrs. Hale was merely colorable. For instance, the testimony of Miller himself shows the rental value of the lot' for the last year was $60 or $75, which, at that rate, would have about paid for the property at the end of three years, when the last payment was to be made. The credit, as already stated, was one, two and three years. No part of the purchase money was paid down, nor was any security given or exacted for the purchase money other than that which the land itself afforded, and the whole amount to be finally paid at the end of the three years was, as just stated, but a trifle more, if any, than the evidence tends to show the property would have rented for. To say the least of it, business men do not ordinarily do business in this way. We'do not wish, however, to be' understood as holding the above facts are necessarily inconsistent with good faith. We only mean to say they are matters that strongly challenge observation, and should have their due weight in arriving at a conclusion upon the general merits of the case.

Waiving these matters, however, altogether, as already indicated, Mrs. Hale can not be regarded as an innocent purchaser without notice, for the reason no part of the purchase money has been paid. That such is the rule of law is well settled by the decisions of this court. Brown v. Welch, 18 Ill. 343; Redden et al. v. Miller et al. 95 id. 345; Moshier v. Knox College, 32 id. 164.

The decree of the circuit court, for reasons already stated, will necessarily have to be reversed, except so far as it directs the sheriff’s deed to plaintiff in error to be corrected in conformity with the prayer of the bill. If, upon the rehearing of the cause,*the court shall find that the purchase of Mrs. Hale was made in good faith, without notice of the irregularity in the sale under the trust deed, it is but equitable that she should be paid the actual value of the improvements put upon the lot, with interest, together with all taxes paid by her, less the reasonable rental value of the property, should a cross-bill be filed by her asking such relief.

,Decree reversed.

Mr. Justice Scott : I do not concur in this opinion.


text:
    The Peoria and Pekin Union Railway Company v. John Clayberg, Admr.

      Filed at Ottawa November 20, 1883.

      1. Evidence—proof of negligence, by other acts at different times. On the trial of an action brought by an administrator against a railway company, to recover for the defendant’s negligence causing the death of the intestate, the defendant, in order to show that the deceased was not observing due care at the time he was killed, asked a witness to state if he ever saw the deceased get on, or attempt to get on, trains, and counsel stated that he expected to prove by this and another witness that the deceased was in the habit of jumping on trains: Held, that the evidence sought and proposed was inadmissible, as its effect was clearly to raise a collateral and immaterial issue.
    2. Same—circumstantial evidence. If facts and circumstances are proved which lead the mind with certainty to the conclusion that other facts and circumstances are true, such latter facts and circumstances may be accepted and acted upon by the jury, and it is not erroneous to so instruct them.
    3. Negligence—duty of railroad at street crossing—comparative negligence. In an action against a railway company to recover damages for negligence resulting in the death of plaintiff’s intestate, who was struck by a moving car at a street crossing, the court instructed the jury that if they believed, from the evidence, that the crossing of the defendant’s railroad on the street was used by persons passing frequently between the hours of six and seven o’clock A. M. and P. M., and that the defendant knew it, and that defendant’s servants and employes were switching and moving cars on said crossing between said hours, at a time when it was dark, by pushing them across said street, then it was the duty of the defendant to take some means to warn the persons passing, or to prevent accident to them, and if the defendant did not do so, it was guilty of negligence; and if such negligence was the cause, or principal cause, of the death of the intestate, and if the jury also believe, from the evidence, that the intestate was not guilty of negligence which contributed to the injury, they should find a verdict of guilty: Held, that there was no error in the instruction to the prejudice of the defendant, and that it stated the rule as to comparative negligence more favorably to the defendant than it was entitled to have it laid down.

      4. Instruction—need not embrace matters merely suppletory in their character. It is no objection to an instruction, in an action to recover for negligence, that it fails to define what might or might not constitute negligence under certain claimed theories of proof, where no fundamental principle or indispensable condition to a recovery is omitted. Neither is it error in such an instruction to omit matters merely suppletory in their character, which might properly be presented in a separate instruction.
    5. Same—whether it singles out and gives undue prominence to a single o fact. In a case involving the comparative negligence of the parties, an instruction stating that the omission to do certain acts by the defendant was culpable negligence, and if the injury was the result of such negligence, and that the party injured was not guilty of negligence contributing to the injury, the jury should find the defendant guilty, is not subject to the objection that it singles out and gives undue prominence to the question of the omission to perform the acts.
    6. Same—of the use of the word “culpable,” as applied to negligence. In an action to recover damages growing out of alleged negligence, the court instructed the jury that certain omissions on the part of the defendant, if found from the evidence, were “culpable” negligence: Held, no error, as the word “culpable” was used in the sense of “blamable.”

      Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Peoria county; the Hon. David McCulloch, Judge, presiding.
    Messrs. Stevens, Lee & Horton, for the appellant:
    Plaintiff’s second instruction, while it charges that the company was bound to take some means to warn passers over the street, fails to state the duties which the law required of the passers. It was a common highway, and the law required both to use reasonable and prudential precautions to avoid accident and danger. Chicago and Northwestern Ry. Co. v. Hatch, 79 Ill. 137.
    The fourth instruction was wrong for several reasons. First, it singled out and gave undue prominence as to the question of the omission to ring a bell or sound a whistle when the train started, as constituting negligence. It has been held repeatedly, that an instruction which singles out and gives undue prominence to certain facts, ignoring other facts proved, and of equal importance to a proper determination of the -case, is erroneous. Lake Shore and Michigan Southern R. R. Co. v. Berlink, 2 Bradw. 434; Calef v. Thomas, 81 Ill. 478; Homes v. Hale, 71 id. 552; Hewett v. Johnson, 72 id. 513; Evans v. George, 80 id. 51; Anderson v. Warner, 5 Bradw. 417.
    It was also faulty in telling the jury not only what constituted culpable negligence, but in the use of the word “culpable, ” and in not instructing them as to any care observed in crossing the street by’the employés, notwithstanding the omission to ring the bell or blow the whistle when the train was started. Our courts have never held that the omission to ring the bell or blow the whistle was “culpable negligence.” Negligence is a question of fact for the jury, and not a question of law. Chicago and Alton R. R. Co. v. Pennell, 94 Ill. 448.

      Mr. EL W. Wells, for the appellee:
    It is contended that the deceased was a trespasser; that he was on the company’s private ground without license, and that the killing was not malicious, and the company is not liable. The case of Lake Erie and Western Ry. Co. v. Zoffinger, 10 Bradw. 252, cited to support this position, does not apply. In that case the injured party abandoned the highway and went on the defendant’s right of way for his own convenience only, while in this, if the deceased went on the company’s ground, it was in an attempt to pass a ear left obstructing the highway, in which endeavor he stepped into a hole between the ties, which threw him down, and he was run over.
    Where one makes an excavation on his own ground, so near the highway as to endanger the safety of those passing along the street in the exercise of proper care, and leaves the same unguarded, by fence or other protection against accident, he is liable. Wood on Nuisance, page 262, sec. 273 ; Burge v. Gardiner, 19 Conn. 507; Vale v. Bliss et al. 50 Barb. 358; Bird v. Holbrook, 4 Bing. 628.
    Where there is no direct evidence that the negligence of the defendant occasioned the injury, the facts and circumstances, which the Supreme Court in several cases hold to be of sufficient proof, (Illinois Central R. R. Co. v. Cragin, 71 Ill. 177, Chicago, Burlington and Quincy R. R. Co. v. Van Patten, 64 id. 510, and Chicago, Burlington and Quincy R. R. Co. v. Lee, 68 id. 577,) were in this case ample to satisfy the mind that the injury was due to the defendant’s neglect.
    It is gross negligence to run a train without a brakeman,. over a public highway. Chicago and Alton R. R. Co. v. Sullivan, 63 Ill. 293.
    Bunning a dark train through a village is greater negligence than walking on the track. In this case the rear of the train,—the end away from the engine,—was perfectly dark and this dark end pushed across this most dangerous, crossing. Indianapolis and St. Louis R. R. Co. v. Galbreath, 63 Ill. 436.
    The law is settled beyond doubt that at a railroad crossing each party owes the other a duty to use all proper care to avoid accident. In a city like Peoria, at a crossing like that described, the railroad company must use the highest care to insure the public safety. Toledo, Wabash and Western Ry. Co. v. Miller, 76 Ill. 278; Chicago, Burlington and Quincy R. R. Co. v. Stumps, 69 id. 409.
   Mr. Justice Scholfield

delivered the opinion of the Court:

Action on the ease, for negligence resulting in the death of the plaintiff’s intestate. Yerdict of jury, and judgment of court thereon for plaintiff. Appeal to Appellate Court for Second District, and judgment of that court affirming the judgmenBof the circuit court, and appeal from that judgment to this court.

The judgment of the Appellate Court relieving us of all questions of fact, we are only to look into the alleged errors of law. The intestate, an errand boy, on his way home at the close of the day’s labors, a little after dark, was struck while on a street, or on a cattle-guard by the side of a street, at a point where numerous railroad-tracks and switches cross such street, by a moving car of defendant, and instantly killed. To show that the intestate was not observing due care at the time he received the fatal stroke from the ear, the defendant, by its counsel, propounded to one of its witnesses the following question: “You may state whether or not you ever saw Bred (the deceased) get on, or attempt to get on, trains?” But, on objection, the court refused to permit the witness to answer the question. The counsel for the defendant then stated they proposed to prove by the witness under examination, and another witness named, that the deceased was in the habit of jumping on trains, but the court ruled that the evidence was inadmissible. No authority is referred to sanctioning the admission of such evidence, and we are not aware of any. Its effect is clearly to raise a collateral and immaterial issue. If such evidence is admissible to prove negligence on the part of the plaintiff’s intestate, then the same character of evidence must be admissible to prove negligence on the part of the defendant, which has been condemned by the entire weight of judicial authority. In re Baltimore and Susquehanna R. R. Co. v. Woodruff, 4 Md. 242; Aldrich v. Pelham, 1 Gray, 510; Kidder v. Dunstable, 11 id. 342; Collins v. Dorchester, 6 Cush. 396; Gahahan v. B. and L. R. R. Co. 1 Allen, 187; Hubbard, v. A. and K. R. R. Co. 39 Maine, 506; Parker v. Portland Publishing Co. 69 id. 173. We think the proposed evidence was properly excluded.

The second instruction, given at the instance of the plaintiff, is as follows:

“If the jury believe, from the evidence, that the crossing of the defendant’s railroad on Sanger street was used by passers frequently between the hours of six and seven A. M. and P. M., and that the defendant knew it, and if they further believe that the defendant’s servants and employés were switching and moving cars on said crossing between said hours, at a time when' it was dark, by pushing them across said street, then it was the duty of the defendant to take some means to warn the passers, or to prevent accident to passers, and if the defendant did not do so, the defendant was guilty of negligence; and if such negligence was the cause, or the principal cause, of the death of Fred Clark, and if the jury also believe, from the evidence, that Fred Clark was not guilty of negligence which contributed to the injury, then the jury should find a verdict of guilty.”

Counsel for defendant insist this is erroneous, because “while it charges the jury that the company was bound to take some means to warn passers over the street, it fails to state the duties whieh the law required of the passers.” It does, however, imply that the intestate, in order that there be a recovery, should not have been guilty of negligence which contributed to the injury,—which is stating the law more favorably for the defendant than, under the doctrine of comparative negligence recognized by- this court, it is entitled to have it laid down. But there is no error in the instruction to the prejudice of the defendant,—no omission of any fundamental principle whieh it was entitled to have stated as an indispensable condition to a recovery. That definitions of what might or might not constitute negligence under claimed theories of proof, are not given, is unimportant. That which it is claimed is here omitted is suppletory in its character, and, if deemed necessary by the defendant, it should have presented it in a separate instruction.

An objection is urged to the third of the instructions given at the instance of the plaintiff, upon the ground that it assumes there were facts and circumstances shown, outside of the testimony of witnesses, competent for the consideration of the jury. This is not a fair construction of the instruction. It merely states, in effect, the law as applicable to circumstantial evidence, namely: If facts and circumstances are proved which lead the mind with certainty to the conclusion that other facts and circumstances are true, those facts and circumstances may be accepted and acted upon by the jury as true. 1 Greenleaf on Evidence, (7th ed.) sec. '13, et seq.; Best on Evidence, (1st Am. from 6 Loud, ed.) secs. 27, 294.

The fourth instruction, given at the instance of the plaintiff, is as follows:

“If the jury believe, from the evidence, that defendant started a train in the city of Peoria without ringing a bell or sounding a whistle, and if they further believe, from the evidence, that Fred Clark was attempting to cross the defendant’s track on which said train was so started, and that by reason of there being no bell rung or whistle sounded, such train or ear of that train struck Fred Clark while so attempting to cross said track, then the defendant was guilty of culpable negligence; and if you further believe, from the evidence, that the death of said Clark was the result of such negligence on the part of defendant, and that said Clark was not guilty of negligence contributing to the injury, then you should find the defendant guilty. ”

Two objections are urged against this instruction by counsel for the defendant: First, it singles out and gives undue prominence to the question of the omission to ring the bell or sound the whistle; and second, in stating what constituted culpable negligence, and also in the use of the word “culpable.” This instruction does not ignore the question of the contributory negligence of the intestate, but, as in the second instruction, by necessary implication states the rule in regard to his negligence more strongly against the plaintiff than our view of the law requires. The word “culpable” is not objectionable in the sense in which it is here used,—that of “blamable.” If the defendant was negligent, as contemplated, then it was certainly culpable,—i. <?., “blamable.” The question of the existence of the facts was left to the jury, and the jury were fully instructed as to the measure of the duty of the plaintiff’s intestate, in instructions given at the instance of the defendant.

Some objection was taken, but seems not to be seriously pressed in argument, as to the refusal of the court to give certain instructions asked by the defendant. We perceive no error in that regard for which there should, in our opinion, be a reversal of the judgment.

The judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Walker

text:
    William Gent v. Manufacturers and Merchants’ Mutual Insurance Company.

      Filed at Ottawa November 20, 1883.

    1. Corporation—can not contract until brought into being. A corporation must have a full and complete organization and existence as an entity before it can enter into any kind of a contract or transact any business. Nor have the incorporators bringing it into being any power to bind it by contract, unless so authorized by the charter.
    2. Insurance company—can not insure before its complete organization. Until a mutual fire insurance company has fully completed its organization by filing the certificate of the Auditor of Public Accounts with the county clerk that the corporators have deposited the requisite capital stock, the transaction of business in the name of the corporation is unauthorized.
    3. The corporators or promoters of a proposed mutual fire insurance company are authorized to take applications for insurance, and premium notes, as a fund or capital to authorize the granting of the charter, and to enable the company to transact its business when organized; but, prior to organization, the making of an application and giving a premium note is only a proposition to insure in the company, and to receive a policy when the company shall have become capable of contracting and transacting business.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Winnebago county; the Hon. William Brown, Judge, presiding.
    Mr. A. D. Early, for the appellant:
    Appellee was a corporation ele jure, as well as de facto, before the contract was made with appellant. .It had an existence sufficient for a charter, and for the election of directors, and the appointment of. agents. Rev. Stat. chap. 73, secs. 1, 3, 6, 7, 8, 10.
    The statute should not receive a construction converting every direction and detail of powers into a mandatory prerequisite of corporate existence. Cross v. Pinckneyville Mill

      Co. 17 Ill. 54; Tarbell v. Page, 24 id. 47; Baker et al. v. Administrator of Backus, 32 id. 79; Stone v. Great Western Oil Co. 41 id. 85.
    There is an unavoidable implication of a corporate existence, which antedates the making of the certificates required. The organization must necessarily be completed before they can be made. Merrick v. Reynolds Engine and Governor Co. 101 Mass. 381; First National Bank of Salem v. Aling, 117 id. 476; Whitney v. Wyman, 101 U. S. 392; Johns v. People, 25 Mich. 499 ; Van Slyke v. Trempealeau County Mutual Fire Ins. Co. 48 Wis. 683.
    Appellant’s rights are the same, even though appellee is a mutual company. The difference is clearly shown in the following cases : Cumberland Valley Mutual Ins. Co. v. Schell, 29 Pa. St. 51; Ellenberger v. Protection Mutual Fire Ins. Co. 89 id. 464; New England Mutual Fire Ins. Co. v. Butler, 34 Maine, 451; Jones et al. v. Dana, 24 Barb. 395; Columbia Ins. Co. v. Cooper, 50 id. 331; Rosenbergher, Light & Co. v. Washington Mutual Fire Ins. Co. 87 id. 207.
    An oral contract of insurance is binding. Wood on Fire Insurance, sec. 4; Hartford Fire Ins. Co. v. Wilcox, 57 Ill. 180; Hartford Fire Ins. Co. v. Farrish, 73 id. 166.
    If Holland did not have authority to make the contract, the subsequent ratificqrion on the part of the company by its secretary, Ferguson, amounted to a previous authority. Angelí & Ames on Corporations, (11th ed.) secs. 240, 304; Ewell’s Evans on Agency, 49; Story on Agency, sees. 239, 248; Randell v. Van Vechton et al. 19 Johns. 59; Episcopal Society v. Episcopal Church, 1 Pick. 372.
    Appellee having assumed to contract, and taking the benefit of the contract, is estopped to set up the defence of ultra vires. Diversy v. Smith, 103 Ill. 378; 2 Parsons on Contracts, 790; Bigelow on Estoppel, secs. 423, 511; Angell & Ames on Corporations, sec. Ill, p. 96, and sec. 256; Morawetz on Private Corporations, secs. 106, 108, 142; Bell’s Gap Ry. Co. v.
      Christy, 54 Pa. St. 59; Trumbull County Mutual Fire Ins. Co. v. Horner, 17 Ohio, 407; Grape Sugar Co. v. Small, 40 Md. 395; De Groff v. American Linen Thread Co. 21 N. Y. 124; Bissell v. Michigan R. R. Co. 22 id. 258: Parish v. Wheeler, 22 id. 494; State Board of Agriculture v. Citizens’ Street Ry. Co. 47 Ind. 407.
    A corporation retaining a contract of its corporators after the recording of the certificate, is liable on it. Hughes v. Antietam Manf. Co. 34 Md. 316; Tonica and C. Ry. Co. v. McNeely, 21 Ill. 71; Johnson v. Ewing Female University, 35 id. 518.
    Mr. C. M. Brazee, for the appellee:
    Corporations can only act in the manner and for the purposes named in the incorporation articles. Field on Corporations, secs. 246, 247.
    The company was not liable for any contract or service made or had prior to its organization, and no recovery can be had on any such contract. Drainage Co. v. Durbin, 13 Ind. 173; Rockford and Rock Island R. R. Co. v. Sage, 65 Ill. 328; Diversy v. Smith, 103 id. 279.
    It is soon enough for corporate bodies to enter into contracts incumbering their property when they are duly organized according to their charter, and have their chosen and impartial directors to conduct their business. N. Y. and N. H. R. R. Co. v. Ketchum, 27 Conn. 170; Franklin Ins. Co. v. Hart, 31 Md. 59; Western Screw and Manf. Co. v. Cousley, 72 Ill. 531; Stowe v. Flagg, id. 397.
    There are very great differences between stock and mutual insurance companies, the rule being that no waiver or special contracts can be made with the mutual company, while there ma.y be with stock companies. May on Insurance, secs, 146, 148, 149, 548, 552; Belleville Mutual Ins. Co. v. Van Winkle, 1 Beasley, (N. J.) 333; Hackney v. Allegheny Mutual Ins. Co. 4 Barr, (Pa.) 185.

      A party becoming insured in a mutual company becomes a member, and is charged with notice of the charter and by-laws, powers of agents, and all acts of the company. Mitchell v. Lycoming Mutual Ins. Co. 51 Pa. St. 402; May on Insurance, 552.
    What is necessary in order to constitute the organization of an incorporation under a general act of the legislature, other than under a special charter? Bigelow v. Gregory, 73 Ill. 197.
    Until all acts necessary for a full and complete organization of the appellant had been done, and the certificate filed for record, the corporators or their solicitors could make no existing contracts of insurance covering a period of time before the organization or legal- existence of the appellee. Dunning v. Smith, 8 Johns. Ch. 332; Bigelow v. Gregory et al. 75 Ill. 197; Dart v. Herculese, 57 id. 447.
   Mr. Justice Walker

delivered the opinion of the Court:

In the month of July, 1880, a number of persons in Winnebago county determined to organize the Manufacturers and Merchants’ Mutual Insurance Company, to insure against loss by fire. They published the notice required by the statute, and filed a declaration of intention with the Auditor, together with a copy of the charter they proposed to adopt. On the 7th day of that month the Attorney General of the State certified to the Auditor that he had examined the notice and charter, and found they conformed to the law. The persons thtfs engaged designated persons to solicit insurance. Holland and De Forrest, who had been appointed for the purpose, saw appellant, and induced him to agree to take a further insurance on the machinery in his factory. He, at the time, agreed to take insurance in the company for $1000. He gave his note, payable to the company, for $150, and accepted a draft for $30, dated August 10, 1880, by which he agreed, on demand, to pay to the order of E. Lyman, treasurer of the company, $30, as a twenty per cent assessment on his premium note of $150, for $1000 insurance under policy No. 36, of even date therewith, in the company. The draft was drawn by James Ferguson, as secretary of the company. There were no other writings entered into in reference to the matter, all else being verbal. On the 3d of February, 1881, the promoters of the enterprise applied to the Auditor to examine the notes and securities held by them, and for a certificate of compliance with the law. He made the examination, but finding some of the notes informal he declined to give the certificate. On the 5th of the month the corporators made the oath required by the statute. On the night of that day appellant’s factory was burnt, with the machinery. This was on Saturday, and on the next Monday, the 7th of the month, appellant gave notice of the loss, and notified the secretary that he considered the company liable, and obtained permission to save all he could out of the ruins. On the 9th of the month, four days after the fire, the corpora-tors sent a messenger to Springfield to file its list of premium notes with the Auditor, they having obtained such notes in place of those rejected by the Auditor, and they obtained the final certificate from the Auditor, and filed it for record with the clerk in Winnebago county on the 11th day of February, 1881. Thereupon the company wrote on the note, draft and application of appellant, the words, “cancelled February 11, 1881.” The company thereupon refused to pay the loss, on the ground that it had made no contract, and was not bound by the acts or agreement of the corporators before the organization was completed. Thereupon appellant brought suit in the Winnebago circuit court, and on a trial he recovered a verdict and judgment for the sum of $1000, and interest. The company appealed to the Appellate Court for the Second District, where'the judgment was reversed, but the cause was not remanded, the court holding appellant could not recover, and he appeals to this court and asks a reversal.

Appellant insists that the application, the premium note, and acceptance of the draft by him, and their delivery to and retention by the corporators, constitute a contract of insurance; that he did all he would have been required to do had the company been organized at that time, and as it was intended to be an insurance by all parties, the company, on becoming organized, was precluded from denying that the contract was binding on it; that the incorporators, not only by agreement, but by using the premium note and the draft as an assessment of twenty per cent of its capital furnished to the Auditor, and without which it would not have had the requisite amount of capital to .complete its organization, the company is estopped from denying the validity of the contract; that the corporators having used these instruments five days after the fire to procure the Auditor’s certificate of incorporation, it could not afterwards cancel them, and thus escape liability to pay the loss; that to do so is unfair and unjust, and contrary to the spirit of the provisions of the sections of the Insurance law, under which the company was organized. The first section of that act authorized the organization of this company for the purposes of insuring such property. The third section authorized the incorporators to file in the office of the Auditor of Public Accounts a declaration, signed by them, declaring their intention to form a company for insuring against loss by fire, etc. The sixth section provides that no mutual company out of Chicago shall commence business until agreements have been entered into for insurance with at least two hundred applicants, the premiums on which shall amount to not less than $100,000, of which $20,000 at least shall have been paid in cash, and notes of solvent parties, founded on actual and bona fide applications for insurance, shall have been received for the remainder. Nor shall any such note be represented as capital stock unless a policy be issued upon the same within thirty days after the organization of the company, upon a risk which shall not he for a shorter period than one year. The balance of the section relates to making assessments, etc.

That a corporation should have a full and complete organization and existence as an entity before it can- enter into any kind of a contract or transact any business, would seem to be self evident. This is unconditionally true, unless the act of incorporation authorizes the corporators to perform acts and enter into contracts to bind the company when it shall be' organized. As well say a child in ventre sa mere may enter into a contract, or that its parents may-bind it by contract. A corporation, until organized, has no being, franchises or faculties. Nor ,do those engaged in bringing it into being have any power to bind it by contract, unless so author^ ized by the charter. -Until organized as authorized by the charter there is not a corporation, nor does it possess franchises or faculties for it or others to exercise, until it acquires a complete existence. By its birth, so to speak, it for the first time acquires its- faculties to transact its business and perform its functions. Then, do these sections authorize the corporations to issue policies to individuals who apply for insurance, and give their premium notes? They are authorized to take such applications and notes as a fund or capital to authorize the granting of the charter, and to enable the company to transact its business when organized. This is manifestly the true construction, as the statute provides that if a policy of insurance running at least twelve months is not issued in thirty days after the organization of the company, the premium note shall not represent a portion of the capital stock of the company. If it was intended that the application for the policy and the giving of the premium note should constitute a contract to insure, such a provision' would not have been enacted ; but by its adoption it is manifest that the General Assembly intended that the application and note should be held simply to be acted upon after the organization should be completed. If such was the purpose, and of it we have no doubt, then there can be no claim that there was a contract of insurance, but simply that if the property was still in existence when the company should be organized, the applicant would be entitled to a policy on the terms proposed. It was simply a proposition or an application for a policy after the organization should be had, and the company authorized to take risks and issue policies. Beyond that the incorporators had no power to bind the future company. Nor does the statute authorize the corporators to contract for and issue policies. Had they issued a policy in form, would any one claim that a suit could be maintained on it against the company ? Surely not, because no power to do so is conferred by the statute. And if a formal written policy would be invalid, how can it be said that a mere verbal agreement for insurance can be held binding?

In the case of Rockford, Rock Island and St. Louis R. R. Co. v. Sage, 65 Ill. 328, it was held that a railroad incorporation was not liable for services rendered before its organization, unless the company promised' to pay after it was organized. In Stowe v. Flagg, 72 Ill. 397, it was held that the agreement of parties intending to and engaged in forming a manufacturing corporation to put in property as stock, but which was never subscribed, did not bind the corporation, nor did the property become that of the corporation, although it was used by the company. In the case of Western Screw and Manufacturing Co. v. Cousley, 72 Ill. 531, it was held where the corporators, before the organization of the company was completed, employed a superintendent, and he entered upon the duties of the place, and rendered services for the inchoate company, it, when organized, was not liable to pay for such services.

This statute only authorizes the company to transact business upon filing the certificate of the Auditor of Public Accounts with the proper county clerk. The transaction of business in the name of the corporation before that certificate shall he thus filed is unauthorized. But in this case no policy was issued, or intended to he issued, when the application and note were executed, and the ease falls within the principles announced in the cases above referred to, and they are conclusive of the question.

We perceive no error in the record, and the judgment of the Appellate Court is therefore affirmed.

Judgment affirmed.