text:
    Butler & McCracken v. Ella Gain.

      Filed at Mt. Vernon

      April 5, 1889.

    1. Mechanic’s lien—strict construction. The statute giving a mechanic, material-man or sub-contractor a lien on the premises of the owner of a building erected or repaired, is in derogation of the common law, and is to be strictly construed. Therefore, a party seeking a lien under its provisions must show a clear compliance with all the requirements of the statute.
    2. Same—rights of sub-contractor, material-man, etc.—notice to the owner. The statute does not give to a sub-.contractor, mechanic, or person furnishing material to the original contractor, a lien absolutely, without notice to the owner o’f the rights of such sub-contractor, mechanic or material-man. The statute requires such persons claiming a lien, to give the owner notice thereof, when he has not received the .same from the contractor.
    3. This notice is required to be served on the owner within forty days from the completion of the sub-contract, or within the same period after payment should have been made to the sub-contractor, etc.

      Í. If the contractor furnishes the owner with a sworn statement, setting forth the names of all persons entitled to be protected, with the sums due or to become due them, then all the purpose intended by the notice in section 30 is accomplished, and the sub-contractor or material-man will not be required to serve the notice provided for in the latter section.
    5. If the owner of a building has notice of the rights and interests of sub-contractors and material-men, either under section 30 or 31, or from the sworn statement of the original contractor, and pays the original contractor, without retaining a sum sufficient to satisfy the claims of the sub-contractors, etc., such payment will be in violation of the rights of sub-contractors, etc. If the owner is not so served within forty days, he may lawfully pay off his contractor without liability to any other lienholder.
    Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the City Court of East St. Louis; the Hon. B. H. Canby, Judge, presiding.

      This was a petition by Butler & McCracken, lumber merchants, against appellee, Gain, and one Wiegriffe, defendants, to enforce a mechanic’s lien as sub-contractors. The petition shows that one Benjamin Summers, a contractor, on August 27, 1887, contracted to build a house for Ella Gain, appellee, for the sum of '$685, the same to be completed in forty-five days from that date; that the last payment was due on the completion of the work; that the house was finished and accepted by Ella Gain on October 11,1887; that appellee paid to Summers $500 on the contract, without demanding, in writing, or receiving of said contractor, a statement, under oath, of the number and name of every sub-contractor, mechanic and workman in his employ, or of persons furnishing material, giving their names and the rate of wages, or the terms of contract, and how much, if anything, was due or to become due for work done and materials furnished, and without retaining out of the money due said Summers on account of said contract, an amount sufficient to pay the demands of petitioner and other sub-contractors, workmen and mechanics furnishing material and labor under said contract; that on the 11th of October, 1887, and now, there is due from said Gain to said Summers $185 on the contract; that after said Summers made such contract with said Gain, he contracted with petitioners for lumber for said house, and, accordingly, lumber and materials to the amount of $286.42 were furnished by petitioners, which were put -in said house; that said material was to be paid for by Summers at the time mentioned in the original contract between Gain and Summers; that Summers has paid $85, and there remains due to petitioners $201.42; that on November 2,1887, within four months after the last payment became due, they filed in the office of the circuit clerk of St. Clair county their lien against said house, etc;, a copy of which is annexed as an exhibit; and that on December 20, 1887, they caused to be served on said Gain a copy of the notice required by statute, notifying her that petitioners had been employed by said Summers to furnish materials, and had furnished the same, for the erection of her house. The petition makes Ella Gain, Benjamin Summers and Theodore Wiegriffe defendants. The court below overruled a demurrer to this petition, and decreed that complainants have a mechanic’s lien on the premises for $201.42, and that Gain and Summers pay the same within thirty days, and that in default thereof the premises be sold, etc. Ella Gain took the case, by appeal, to the Appellate Court for the Fourth District, where the decree of the city court of East St. Louis was reversed, and the cause remanded, with directions to dismiss the bill for want of equity. From this judgment the petitioners prosecute this appeal.
    Mr. James J. Bafter, for the appellants.
    Mr. L. H. Hite, for the appellee.
   Mr. Justice Shops

delivered the opinion of the Court:

This is a proceeding by sub-contractors to establish and enforce a mechanic’s lien. The sections of the statute relating to the matter under consideration, are sections 29, 30, 31 and 35 of the statute relating to liens, as amended in 1887. These sections, relating to the same subject, must necessarily be construed together.

A lien is given by section 29, to sub-contractors, or other persons who shall perform labor or furnish material for the original contractor, but provides that the aggregate of all liens allowed shall not exceed the price stipulated in the original contract between the contractor and the owner, “unless payment be made to the original contractor, or to his order, in violation of the rights of the persons intended to be benefited by section 35” of the same act. The 30th section requires the person performing such labor or furnishing material, to serve a written notice upon the owner, stating that he has been employed by the contractor to perform work or furnish material for the owner’s building, and that he intends to assert a lien against the property; “Provided, such notice shall not be necessary when the sworn statement of the contractor, provided for in section 35” of the act, “shall serve to give the owner true notice of the amount due, and to whom due.” Section 31 of the act provides, that “if there is a contract in writing between the original contractor and the subsequent contractor, a copy of such sub-contract, if the same can be obtained, shall be served with such notice and attached thereto, which notice shall be served within forty days from the completion of such sub-contract, or within forty days after payment should have been made to the person performing such labor or furnishing such materials.”

It is provided by section 35, that “the original contractor shall, whenever any payment of money shall become due from the owner, or whenever he desires to draw any money from the owner, lessee or his agent, on such contract, make out and give to the owner, lessee or his agent, a statement, under oath, of the number and name of every sub-contractor, mechanic or workman in his employ, or person furnishing materials, giving their names and the rate of wages, or the terms of contract, and how much, if anything, is due or to become due to them, or any of them, for work done or materials furnished ; and the owner, lessee or his agent shall retain out of any money then due to the contractor, an amount sufficient to pay all demands that are due or to become due said sub-contractors, mechanics and workmen, or person furnishing material, as shown by the contractor’s statement, and pay the same to them according to their respective rights; and all payments so made shall, as between such owner and contractor, be considered the same as if paid by such original contractor. Until the statement provided for in this section is made in manner and form as herein provided, the contractor shall have no right of action .or lien against the owner on account of such contract, and any payment made by the owner before such statement is made, or without retaining sufficient money, if that amount is due or is to become due, to pay the sub-contractors, mechanics, workmen, or person furnishing materials, as shown by the statement, shall be considered illegal, and made in violation of the rights of the persons intended to be benefited by this act, and the rights of such sub-contractors, mechanics, workmen, or persons furnishing material, to a lien, shall not be affected thereby.” The remainder of this section gives the owner a right to demand such statement at any time during the progress of the work, and imposes a penalty on the contractor for a failure to furnish the same.

The statute giving a mechanic, a material-man or subcontractor a lien on the premises of the owner of a building erected or repaired, is in derogation of the common law, and is to be strictly construed; “therefore, a party seeking a lien under its provisions, must show a clear compliance with all the requirements of the statute. Belanger et al. v. Hersey et al. 90 Ill. 70; Canisius et al. v. Merrill et al. 65 id. 67; Stephens v. Holmes, 64 id. 336; Cook et al. v. Heald et al. 21 id. 429; Huntington v. Barton, 64 id. 504; Brady v. Anderson et al. 24 id. 110. The statute does not give to a sub-contractor, mechanic, or person furnishing material to the original contractor, a lien absolutely, without notice to the owner of the rights of such sub-contractor, mechanic or material-man. It would be difficult, if not impracticable, for the owner of the building being erected to ascertain the names of all persons who might furnish the contractor with material to be used in such building, or who might perform labor thereon, and the statute has wisely required such persons claiming a lien to give him notice thereof when he has not received the same from the contractor. As has been seen, section 31 requires the notice required by the preceding section to be served on the owner within forty days from the completion of the sub-contract, or within the same period after payment should have been made to such person. If the contractor furnishes the owner with a sworn statement, setting forth the names of all persons entitled to be protected, with the sums due them, then all the purpose intended by the notice in section 30 is accomplished, and the sub-contractor or material-man will not be required to serve the notice provided for in the latter section.

It is to be observed (section 29) that the owner shall not, except in case of fraud, be compelled to pay a greater sum on account of his house than the original contract price, “unless payments be made to the original contractor, or his order, in violation of the rights and interests of the persons intended to be benefited by section 35” of the act. When is a payment to the original contractor in violation of the rights and'interests of the sub-contractor or person furnishing material ? It is undoubtedly when the owner has had notice of such persons’ rights, either under section 30 or 31, or from the sworn statement of the original contractor. The notice under sections 30 and 31, to be available, must be served within forty days, as we have seen. This notice was not served on appellee within the time required, and consequently her payment to the contractor was not illegal as to the appellants, or in violation of their rights or interests, unless she had notice of their claim by the sworn statement of the original contractor. This is not shown. The petition fails to show that the conditions of the proviso to section 30 arose to exempt appellants from giving notice, but, on the contrary, that appellee did not receive or require from the contractor the statement provided in section 35, and, consequently, the statement not being given, could not “serve to give her due notice” of the claim of appellants, or of the amount due them.

Appellee undoubtedly had the right to refuse payment to the contractor until he furnished her a sworn statement, as provided by the statute; but without notice that there were sub-contractors or other persons entitled to a lien on her property, she was not bound to demand such statement as a con■dition precedent to payment of the amount due the contractor. It is only the persons to whom a lien is given that section 35 is intended to protect. Their right to a lien does not depend upon the omission of the owner to do or perform any act, but does depend upon something they must themselves do, unless the necessity for their action is avoided by the act of the original contractor in furnishing the sworn statement. If the contractor fails to give the owner notice of the sub-contractors’ or material-men’s lien, they must give the notice, in order to protect their rights under the statute.

Appellants not having taken the proper steps to perfect their ■lien, by giving notice of their claim within forty days, as provided in section 31 of the act, can not complain of appellee that she did not demand a sworn statement of the contractor. She owed them no duty until notified of their rights in some of the modes prescribed by the law. This leads to an affirmance of the judgment of the Appellate Court, and it is accordingly affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Bailey

license: Public Domain

text:
    James F. Long v. Lothaire B. Cockern et al.

      Filed at Springfield

      April 5, 1889.

      1. Chanceen—admission in answer, whether evidence against a co-defendant. In a contest between the mortgagee of chattel property ■and a purchaser from the mortgagor, in which the mortgagee claims the property as a fixture to real estate mortgaged to him, the answer of the mortgagor and his wife, admitting that the chattels were fixtures to the realty, is not evidence against the purchaser of the property from the mortgagor.
    2. Fixture—portable engine and saw-mill. The owner of a portable engine and saw-mill sold the same to a party, who moved the machinery, and set it up on his wife’s land, and the purchaser and his wife gave their mortgage on the land for the price of the engine, mill, etc. The mill was placed upon sills, and attached to stakes driven into the ground, so as to render it stationary while being operated. The engine was sunk into the ground and a shed built over it: Held, that the property did not acquire the character of fixtures, so as to become a part of the realty, and pass to the mortgagee.

      i. The vendor of a portable engine and saw-mill, after the purchaser had set up the same on Ms wife’s land for use, which was mortgaged for the price, brought replevin for the engine and mill as personal property, which was afterward dismissed, and after a return of the property, the purchaser sold the same, in good faith, to a creditor: Held, that the institution of the replevin suit by the vendor, if it did not estop him to claim the property as part of the realty, afforded very strong evidence against him that the property was not real estate.
    5. Chatted mortgage—not properly acknowledged. A chattel mortgage not acknowledged as required by the statute, is void as to creditors and purchasers, notwithstanding actual notice.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Brown county; the Hon. John C. Bagby, Judge, presiding.
    Messrs. Berry & Epler, for the appellant:
    Such articles as portable mills, engines and boilers, more or less firmly affixed to the realty, will, in the absence of circumstances showing a contrary intention, be presumed to have been attached as permanent accessions to the soil. The tests are: First, actual annexation to the realty; second, application to use in connection with the realty; and third, the intention of the parties making the annexation, to make a permanent accession to the freehold. Sword v. Low, 122 Ill. 487.
    Fixtures designed for permanent use, and of benefit to the land, are presumed to be real estate, and pass under the mortgage afterward made, as, platform scales let into the ground of a farm. Arnold v. Crowder, 81 Ill. 56.
    Fixtures put on by the mortgagor after execution of the mortgage, become part of the realty, and subject to the mortgage. (Wood v. Whelen, 93 Ill. 153; Wright v. Gray, 73 Me. 297; Ewell on Fixtures, 275-279, and notes, 281, and notes.) For it is presumed the mortgagor intended to improve his own. Ewell on Fixtures, 282.
    So of a frame office, adjacent to a mill, resting on wooden blocks on the surface of the ground, put there after mortgage on the mill, is held realty. (Savings Bank v. Kercheval, 65 Mo. 682.) So of a Noyes Portable Grist-mill fastened to the floor of a building, for use there. Potter v. Cromwell 40 N. Y. 287.
    A saw-mill attached to floor timbers, passes under a prior mortgage. Davenport v. Shants, 43 Vt. 546.
    A saw-mill erected on government land under pre-emption right, afterward lost, becomes a part of the realty, and the occupant has no right to remove the same. Ewell on Fixtures, 57, note 4; Treadway v. Sharon, 7 Nev. 37.
    Buildings and mills put by a mortgagor on mortgaged land are held by the mortgagee till the mortgage debt is paid. (Matzon v. Griffin, 78 Ill. 477; Burnside v. Twitchell, 48 N. H. 390.) And if the fixtures be removed from the land mortgaged, equity will follow, and subject the same to the mortgage lien, (Kimball v. Darling, 32 Wis. 675,) as, where a grist and saw-mill are severed and levied on by other creditors. Witmer’s Appeal, 45 Pa. St. 455.
    The insertion of the portable mill, etc., into the mortgage of the land, was immaterial, as it became realty by being placed on the land. Vogle v. Ripper, 34 Ill. 100.
    A severance by the owner, or by the tortious act of a stranger, or by the act of God, will not constitute the thing severed realty. Rogers v. Gillinger, 30 Pa. St. 1885; Gray v. Holdship, 17 S. & R. 413.
    Neither the owner of land, his assignee, nor a stranger, can divest the lien without the consent of the party entitled to the benefit thereof, (Ewell on Fixtures, 47,) as, where the debtor detaches fixtures from the land after levy of execution thereon, (Latham v. Blakely, 70 N. C. 368,) or where severance is made by a third party. Gray v. Holdship, 17 S. & R. 413.

      Nor, in case of a mortgage, could severance divest the lien without the consent of the mortgagee. Witmer’s Appeal, 45 Pa. St. 455; Hoskin v. Woodward, id. 42; Kimball v. Darling, 32 Wis. 687; Hutchins v. King, 1 Wall. 53.
    Generally speaking, the mortgagee has the same rights as the owner of the fee, and may enjoin the removal of fixtures, (1 High on Injunctions, sec. 478; Ewell on Fixtures, 408,) and follow the same, if severed. Matzon v. Griffin, 78 Ill. 477.
    The mortgagee may enjoin cutting timber. Nelson v. Pinegar, 30 Ill. 473.
    After the mortgagee had taken possession, it was immaterial whether the mortgage was acknowledged as a chattel mortgage, or whether it was acknowledged at all or not. His possession was notice of his rights. Gaar, Scott & Co. v. Hurd, 92 Ill. 326; Chipron v. Feikert, 68 id. 284; Frank v. Miner, 50 id. 444.
    Mr. John J. Teefey, for the appellee J. W. Metcalf:
    The alteration of .the mortgage by Cockern in the absence of his wife made the mortgage void as to her. White v. Jones, 38 Ill. 159; Montag v. Linn, 23 id. 551.
    A fixture is something substantially and permanently attached to the soil, though in its nature removable. 1 Wash-burn on Beal Prop. 20.
    Machines which may be used in any other building as well as that in which they are placed, are ordinarily deemed personal chattels, though fastened securely to the freehold, if the same can be removed without material injury to the freehold. 1 Washburn on Beal Prop. 25; Kelly v. Austin, 46 Ill. 156; Goff v. O'Conner, 16 id. 421; Cook v. Whiting, id. 480.
    Unless Metcalf was guilty of fraud, he will be protected in his purchase. Bishop on Contracts, sec. 1210; Miller v. Kirby, 74 Ill. 242; Hatch v. Jordon, id. 414; Gridley v. Bingham, 51 id. 153; Ewing v. Runkle, 20 id. 448.

      A creditor purchasing in payment of his debt is protected. Butters v. Haughwout, 42 Ill. 18; Gray v. St. John, 35 id. 232; Manning v. McClure, 36 id. 490; Waggoner v. Cooley, 17 id. 245.
   Mr. Justice Bailey

delivered the opinion of the Court:

This was a bill in chancery, brought by James F. Long against Lothaire B. Cockern, Emily S. Cockern his wife, and John W. Metcalf, to foreclose a mortgage on certain lands, and to restrain the defendants from removing a certain sawmill, steam-engine and other personal property appurtenant thereto, out of the jurisdiction of the court. The facts are these: On the 21st day of October, 1885, Long, who then was and for several years had been the owner of a portable steam-engine and saw-mill, boiler-wagon and log-wagon, sold them to Lothaire B. Cockern for $1200, Cockern agreeing to give Long his note for that amount, and to secure its payment by a mortgage to be executed by himself and wife on certain lands owned by his wife upon which said saw-mill- was to be set up and operated, the mortgage to cover also the engine, mill, etc. In pursuance of this agreement Cockern executed his note to Long for $1200, and he and his wife executed and acknowledged a mortgage on said lands securing said note. When Cockern brought the note and mortgage to Long and offered to deliver them to him, Long objected that no mention was made in the mortgage of the engine, saw-mill, etc., and Coekem thereupon, in his wife’s absence, inserted in the mortgage immediately after the description of the land as follows: “Together with one portable steam-engine and saw-mill, boiler-wagon and log-wagon.” The note and mortgage were then delivered, and Cockern shortly afterward took possession of the boiler, saw-mill, etc., and set them up on the mortgaged land.

The mill was set on sills, and was fastened to stakes driven into the ground to keep the track from slipping. The boiler was sunk into the ground to about the level of the top, and a shed was built over them. Cockern, shortly after buying the mill told Long that he had placed it on said premises for permanent use, and that the shed was put there to stay. The oath to the defendants’ answers was waived by the bill so that the answers only serve the purpose of pleadings, but both Mr. and Mrs. Cockern admit and allege in their answers that the engine and mill were placed upon said land with the intention that they should become a part of the realty.

Said note became due in April, 1886, and no part of it having been paid, Long, on the 17th day of June, 1886, brought his replevin suit against Cockern for the recovery of said engine, saw-mill, etc., and by virtue of the writ in that suit said property was detached and taken from said premises and delivered into the possession of Long. Subsequently Long dismissed his replevin suit, and judgment was thereupon entered against him therein for costs and for a return of the property replevied, and upon a writ of retorno hdbendo said property was taken by the sheriff from Long and returned to Cockern. On the day the property was returned it was levied upon by virtue of an execution issued upon a judgment by confession for $1267.50 and costs, in favor of one Edward E. Metcalf and against Cockern. The property was advertised for sale under the execution, and Edward E. Metcalf having in the meantime assigned the judgment to defendant John W. Met-calf, a settlement was made between John W. Metcalf and Cockern by which it was agreed that the levy should be vacated, and that Metcalf should take said property at $500 and credit that amount on the judgment, Cockern at the same time agreeing to remove the property to Fort Madison, Iowa, and there set it up and operate it as lessee of Metcalf, paying him rent therefor at the rate of $60 per month.

The evidence tends to show that at the time of said settlement Metcalf had notice of Long’s claim to said property by virtue of his mortgage. As Cockern was about to remove said property to Iowa in pursuance of his arrangement with Met-calf, the present suit was commenced and such removal restrained by injunction. Pending the litigation said property was placed in the custody of a receiver.

The cause was heard on pleadings and proofs, and a decree rendered assessing the amount due to Long on said mortgage and ordering a foreclosure of the mortgage and a sale of the mortgaged premises for the payment of the amount due and costs, but finding that said steam-engine, saw-mill, boiler-wagon and log-wagon were personal property and not within the lien of the mortgage, and directing the receiver to return the same to defendant Metcalf, and ordering that the injunction be dissolved. Prom this decree Long appealed to the Appellate Court where said decree was affirmed, and by a further appeal said Long has brought the record to this court.

The only question presented by the appeal is, whether the steam-engine, saw-mill, boiler-wagon and log-wagon are subject to the lien of the complainant’s mortgage. It is insisted, first, that said property had become attached to the soil so as to become a permanent addition thereto and therefore a part of the realty, and secondly, that if it is to be treated as personal property, the mortgage should, as to it, be held to be a valid chattel mortgage.

It should be observed that the real controversy is between the complainant and defendant Metcalf, and therefore that the admissions or averments of Cockern and wife in their answers can have no force as against Metcalf. Leaving those admissions out of the question, we are of the opinion that, even without reference to the replevin suit, the fair inference to he drawn from the evidence is, that said property did not acquire the character of fixtures so as to become a part of the realty. The engine and saw-mill were of a class of property commonly known as “portable,” and they had been owned and used by Long as portable property for five years, and during that time had been moved about and set up and operated by him in several different places. In the mortgage they are described as a “portable steam-engine and saw-mill,” etc. Nor does the evidence show anything in relation to their mode of attachment to the soil after their purchase by Cockern which necessitates the conclusion that it was his intention to make of them a permanent addition to the land. The mill, it is true, was placed on sills and attached to stakes driven into the ground, so as to render it stationary while being operated, but all this, it may be presumed, was necessary to its successful operation wholly irrespective of the permanency of the attachment. The building of a shed doubtless shows that it was the intention of Cockern to operate the mill at the place where he had set it for a considerable time, but it by no means argues that he did not intend to remove it after the timber in that locality should he exhausted.

But the institution by Long of his replevin suit to recover possession of this property as personal property, if not an estoppel upon him, constitutes at least an admission on his part to which very great force must be given, that said property had not become a part of the realty, but still retained its character as goods and chattels. By resorting to replevin he asserted that they were personal property, and in his affidavit in replevin he swore that such was their character. We are of the opinion that the Circuit Court was fully justified, under all the evidence, in holding that said property was not a part of the realty.

It being personal property, can the complainant hold it under his mortgage as a chattel mortgage ? There is no pretense that the mortgage was acknowledged as required by the statute in relation to chattel mortgages. Cockern and wife, at the time of its execution, were residents of Hancock county, and the acknowledgment was taken before a notary public of that county, and in the form appropriate to conveyances of real property. The rule is well settled that a chattel mortgage not acknowledged as required by the statute, is void as to creditors and purchasers, notwithstanding actual notice. Forest v. Tinkham, 29 Ill. 141; Porter v. Dement, 35 id. 478; Frank v. Miner, 50 id. 444; Sage v. Browning, 51 id. 217.

Metcalf was a creditor, and so far as appears, took the property from Cockern bona fide in part satisfaction of his debt. This he had a legal right to do. The mortgage was void as to him, and it was therefore immaterial whether he had notice of its existence or not.

The judgment of the Appellate Court will he affirmed.

Judgment affirmed.


author: Mr. Justice Shops

text:
    Charles W. Thomas et al. v. Martha J. Burnett.

      Filed at Mt. Vernon

      April 5, 1889.

    1. Unrecorded deed—attaching creditor, without notice. An attaching creditor who levies his attachment without notice of a prior unrecorded deed of his debtor, either actual or constructive, acquires a lien, which, if perfected by judgment, execution, sale and deed, will hold the legal estate, as against the grantee in the prior unrecorded deed. Having acquired a lien as creditor without notice, he will have a right to enforce the same, notwithstanding he may have, subsequently to the levy, of his attachment, received notice of the deed.
    2. Possession—as notice of occupant’s rights. Actual possession of land by a party under an unrecorded deed, is constructive notice of the legal and equitable right of the party in possession. Possession by a tenant is the same, in all respects, as if by the party himself.
    3. Actual residence by the owner or claimant of land is not essential to a continuous possession. If the party is in actual possession, and there are continuous acts of ownership, it is sufficient. The fact that a short time may elapse between the actual occupancy by one tenant before another tenant takes possession, will not lose the possession to the owner.
    4. B bought a tract of land in 1882, but failed to record her deed until October 22,1884. After the purchase, B retained C, the prior agent of her grantor, as her agent, who, in August, 1882, rented the premises to J. for one year. The tenant raised a crop thereon, and occupied the land till in August, 1884, when he surrendered his possession to 0. The premises were again rented in March, 1884. On October 10, 1883, the property was attached as that of B’s grantor: Held, that the possession of B was sufficient notice of her unrecorded deed, to the attaching creditor.
    Writ of Error to the Circuit Court of Randolph county; the Hon. George W. Wall, Judge, presiding.
    Mr. Charles W. Thomas, pro se:

    Section 31 of the Conveyance act is as follows: “All deeds, mortgages and other instruments of writing which are authorized to be recorded, shall take effect and be in force from and after the time of filing the same for record, and not before, as to all creditors and subsequent purchasers without notice; and all such deeds and title papers shall be adjudged void as to all such creditors and subsequent purchasers without notice, until the same shall be filed for record.”
    It is hardly necessary to cite authorities to the effect that an attaching creditor is protected by this statute. Martin v. Dryden, 1 Gilm. 187; Stribling v. Ross, 16 id. 122; Jones v. Jones, id. 117. As, also, are purchasers at judicial sales. MeNitt v. Turner, 16 Wall. 352.
    A purchaser at an attachment sale acquires the title as it was at the time the attachment was levied, and not as it was at the time of the sale; and notice to him of an unrecorded deed, given after the levy, and before the sale, will not affect his title under the attachment sale. Henderson v. Downing, 24 Miss. 106; Martin v. Dryden, 1 Gilm. 187.
    The recording of her deed by defendant in error, on the day of the sale under the special execution, was therefore wholly unavailing.
    The possession of land, to effect notice of an unrecorded deed, must be such as to indicate an open and visible change in its condition. McConnel v. Reed, 4 Seam. 117; Cabeen v. Breckenridge, 48 Ill. 91; Small v. Stagg, 95 id. 39; Jefferson v. Jefferson, 96 id. 551.

      Whenever it is sought to establish notice inferentially, the facts proved ought to be emphatic and distinct. Hence, the observation of the court in Norcross v. Ridley, 2 Mass. 605: "Where a prior conveyance is attempted to be supported by fraud in the second purchaser, the fraud must be clearly proved.” Meechen v. Griffing, 3 Pick. 154; Jackson v. Sharp, 9 Johns. 190; Day v. Dunham, 2 Johns. Ch. 190; Jones v. Lygins, 37 Miss. 546.
    “There was no change in the occupancy of the land. At the time of the sale, Ghears was in possession by his tenants. After the sale, the same tenants continued to hold, on an agreement to pay rents to Loughbridge & Bogan. Nothing more occurred than a technical attornment of the tenants to them. There was a transfer of the title, but no change of possession that a stranger could observe. The actual occupancy in March and April after the sale, was just as it had been the prior months of the year. In all this there was nothing to arrest notice or to put a creditor or purchaser on inquiry.” Loughbridge v. Rowland, 52 Miss. 546.
    Mr. James A. Watts, for the defendant in error:
    Where a purchaser has sufficient information to lead him to the knowledge of the fact, he is deemed, in law, cognizant of the fact. The decisions are uniform, that possession of land is notice to all of possessor’s title. McConnel v. Reed, 4 Scam. 117.
    Actual residence, either by the party claiming or by tenant, is not indispensable to continuous possession or occupancy. If there are continuous acts of ownership it is sufficient. Coleman v. Billings, 89 Ill. 183; Ford v. Marcall, 107 id. 136, and authorities cited.
    Anything which apprises a purchaser of land or an incumbrancer that a particular person claims the property, or an interest in it, makes it the duty of the former to pursue that notice to its source, and make inquiry of the person claiming such ownership, and failing to do so, he will be chargeable with all he could have learned had he pursued and investigated the matter to the full extent to which it led. It is not required that he must have full, complete and accurate information of the nature, extent, and all the particulars. Crawford, v. Railroad Co. 112 Ill. 314.
    ' Possession of land may be held in different modes,—by inclosure, by cultivation, by erecting buildings, by piling logs and lumber thereon, or by any use that indicates an appropriation to the use of the person claiming to hold the property. Truesdale v. Ford, 37 Ill. 210.
    Possession may be by claim of exclusive right, by digging and removing sand and gravel from a vacant and uninclosed lot by a grantee of the land, by giving the privilege to some and refusing it to others, and at different times making leases to various persons. Ewing v. Burnett, 11 Pet. 50,—referred to in Truesdale v. Ford, 37 Ill. 210.
    The plowing of land is sufficient possession to give notice to subsequent purchasers and incumbrancers, of the title of the person claiming the same under unrecorded deed. Lyman v. Russell, 45 Ill. 281.
    The actual possession of land by a party, through his tenant, is constructive notice of his rights in the same. Franz v. Orton, 75 Ill. 100.
    A tax receipt may be explained, and parol proof admitted to show for or by whom the taxes were in fact paid. Elston v. Kennicott, 46 Ill. 187.
   Mr. Justice Shops

delivered the opinion of the Court:

This was a bill filed by Martha J. Burnett, against Charles W. Thomas and the sheriff of Bandolph county, to set aside a certificate of purchase held by Thomas upon a forty-acre tract of land owned by the complainant, as a cloud on her title, and to enjoin the sheriff from making a deed under such certificate.

Both parties claim title under James Burnett, a son of the complainant. It is conceded that on the 29th day of March, 1882, James Burnett was the owner of the tract of land in controversy, which was enclosed and in cultivation, hut upon which there was no house. On that day the complainant, as it is shown, bought the land in good faith from her son, for the sum of $1600. No deed was made until in the month of April following, when James Burnett conveyed the land to complainant. No question arises in respect to the payment of the purchase money at the date of the purchase. The land had been under fence and cultivation for over twenty years. David G. Thompson had for some years acted as the agent of James Burnett while he was owner, and had rented the land from year to year. The deed to complainant was not recorded until October 22, 1884, and the land stood on the assessment books in the name of James Burnett until 1885. The complainant, after her purchase, retained Thompson as her agent in respect of this land, and who, in August, 1882, rented the land, as the complainant’s, to one Jordan for one year, who raised a crop thereon, and retained possession of the same until in August, 1883, when he surrendered possession to Thompson. In March, 1884, the agent rented the lands to Tagle. At each renting the agent informed the tenants that complainant was the owner of the premises, and that he was renting it for her. A crop was raised on the land each year after 1882 by the tenants of complainant, and the fences were kept in repair by her agent, who collected the rent and paid the same to her. On the 10th day of October, 1883, Margaret Gilfillen sued out an attachment against James Burnett, in the Randolph circuit court, returnable to the March term thereof then following, and this land was levied upon on that day as the property of James Burnett, and a certificate of levy duly filed. At the September term, 1884, of saiduourt, said plaintiff in attachment recovered judgment for $2500 against said Burnett. Special execution was issued thereon, under which, on October 22, 1884, the tract in controversy was sold to defendant Thomas, attorney of the plaintiff in question, for $1900, and the sheriff - delivered to Thomas a certificate of purchase, which is the certificate now sought to be set aside.

Section 31 of the Conveyance act declares, that all deeds, etc., authorized by law to be recorded, “shall take effect and be in force from and after the time of filing the same for record, and not before, as to all creditors and subsequent purchasers without notice; and all such deeds and title papers shall be adjudged void as to all such creditors and subsequent purchasers without notice, until the same shall be filed for record.”

An attaching creditor who levies his attachment without notice of a prior unrecorded deed of his debtor, either actual or constructive, acquires a lien, which, if perfected by judgment, execution, sale and deed, will hold the legal estate as against the grantee in a prior unrecorded deed. Having acquired a lien as an innocent creditor without notice, he will have a right to enforce the same, notwithstanding he may have, subsequently to the levying of his attachment, received notice of the deed. (Martin v. Dry den, 1 Grilm. 187; Stribling v. Boss, 16 Ill. 122; Jones et al. v. Jones, id. 117; Henderson v. Downing, 24 Miss. 106.) Unless, therefore, the plaintiff in attachment had notice, either actual or constructive, of the unrecorded deed from James Burnett to Mrs. Burnett, the lien thereby acquired must prevail over the rights of the complainant under that deed. The statute makes her deed void, as against the attaching creditor, if a lien on the property was thereby secured in good faith, and without notice of her rights.

Complainant’s right to the relief sought depends, therefore, upon the fact, whether the plaintiff in attachment, at the time of the levy of the writ, had notice of her rights. There is no pretense that she had actual notice of the unrecorded deed, but it is claimed that she had constructive notice, arising from the possession of the land by complainant. Complainant took possession, after her purchase, by her agent and tenants, as we have seen, long prior to the levy of the attachment, and which possession she has ever since retained. It is well settled that actual possession of land by a party under an unrecorded deed, is constructive notice of the legal and equitable right of the party in possession. The possession by a tenant is the same, in all respects, as if by the party himself. Franz v. Orton, 75 Ill. 100; Whittaker v. Miller et al. 83 id. 381; Coari v. Olsen, 91 id. 273.

It is claimed by plaintiff in error, that possession, to have the effect of notice, must be of that character which will arrest attention, and the case of Loughbridge v. Bowland, 52 Miss. 546, is referred to as sustaining that-position. , In that case, the grantor of the land, at the time of the conveyance, was in possession of the same by his tenant. After the sale, the same tenant continued to hold possession under an agreement to pay rent to the grantee. There was there nothing more than a technical attornment by the tenant to the purchaser ; and the court held, that the mere attornment of the tenant, without any visible change in the character of the holding, was not sufficient to put a creditor or subsequent purchaser on inquiry. It is not necessary to the decision of this case to express any opinion in respect of the doctrine there announced, for the reason that after the complainant’s purchase, she, through her agent, made a lease of the property to Jordan. This was in August, 1882, and for one year, and under it a crop was raised. The tenant was informed that his landlord was Mrs. Burnett, the complainant. The agent, as before stated, kept the place in repair as her agent, collected the rents and paid them to her. Here were open, notorious acts of ownership, asserted in an unequivocal manner by the complainant. Thompson, the agent,, was not himself in possession of the property, but the tenants of complainant were, and it was their possession which constituted notice.

It is, however, said that there was no tenant in actual possession at the time of the levy of the attachment, and therefore the plaintiff in error was not chargeable with notice of the unrecorded deed. The tenant’s possession of land is that of his landlord. The Jordans occupied the land up to August, 1883, and this was notice to the world of Mrs. Burnett’s title, to all intents, as if she had occupied it. Actual residence is not essential to continuous possession. If the party is in actual possession of the land, and there are continuous acts of ownership, it is sufficient. Coleman v. Billings et al. 89 Ill. 182; Ford v. Marcall, 107 id. 136.

The land here in controversy was improved and under fence. In such case, the owner will not lose his possession by failing to be continuously in the actual occupancy or use of the land, by himself or tenant. The fact that a short time may have elapsed between the actual occupancy by one tenant before another tenant takes possession, will not be a loss of possession by the owner. The improvements, the fact that a crop-had been raised the previous season, will clearly indicate the possession, and will be sufficient to put others dealing with the property upon inquiry. The attachment here was levied October 10, 1883, a short time after the tenants had surrendered possession to Thompson, complainant’s agent, who still continued to act as such agent in taking care of the property, and the plaintiff should have made inquiry before levying her writ of attachment. It is apparent this could have been done, either of the outgoing tenants or of the agent. Any reasonable, prudent man, contemplating a purchase of the property, would have made such inquiry; and it is clear that an inquiry of the Jordans, or of Thompson, would have led to notice of the claim of complainant, and of the existence of the unrecorded deed.

We think the circumstances are such as to charge the attaching creditor with notice of the deed from James Burnett to the complainant. This being so, the circuit court committed no error in granting the relief prayed, and its decree will be affirmed.

Decree affirmed.


author: Mr. Chief Justice Craig

text:
    Alexander T. Miller et al. v. Sarah A. Kingsbury.

      Filed at Springfield

      April 5, 1889.

    1. Contracts—construction—enforcing the provisions of a contract, severally—of a bond given by a surviving partner to estate of a deceased partner. In construing a bond given by a surviving partner to the personal representative of his deceased partner, all its provisions should be considered and carried into effect, and, when it is possible, the intention of the parties, as declared in each provision of the contract, should be enforced.
    2. So where a surviving partner, under the order of the circuit court, executes to the personal representative of the deceased partner a bond conditioned for the faithful discharge of his duties as such surviving partner, and also for the payment to the obligee of whatever might be found due the latter, after paying the partnership debts and costs of settlement, at such time as the circuit court should order and direct, the obligee may maintain an action on the first named condition, on its breach, without any order of the circuit court directing the payment of money to her. An action will lie in favor of the obligee for the neglect of the obligor to apply partnership funds in his hands, to the payment of the partnership debts.
    3. Same—whether individual or representative—and herein, in what capacity to sue. A surviving partner gave his bond, with sureties, to A B, administratrix of the estate of C D, the deceased partner, or to her successor or successors, conditioned for the faithful discharge of his duties as such surviving partner, etc.: Held, that the words following the name of the obligee were merely descriptio persones, and might be treated as surplusage, and that she might maintain an action for a breach of the conditions of the bond in her individual name.
    4. An executor or administrator may sue as such, as well as in his own name, upon a contract made with him in his representative capacity. In either case, the sum recovered will be held to be for the benefit of the estate.
    5. Surviving partner—of his dnity. It is the duty of a surviving partner to proceed without delay to convert the assets into money, and pay off the partnership debts.
    6. Measure op damages—in action on bond of surviving partner to estate of deceased partner. In an action upon the bond of a surviving partner, given to the administratrix of his deceased partner, for a negleet to apply the moneys realized from the firm assets to the discharge of the firm debts, the damages are not merely nominal, but a recovery may be had for the value of the performance of the undertaking. The measure will be the sum the estate of the deceased partner would have been released of by performance by the surviving partner.
    7. Where the contract is more than for indemnity against damages, or when a party stipulates against the doing of certain acts or the existence of certain conditions, or for performance of any kind, then the value of the performance of the contract will measure the damages recoverable for the breach.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Adams county; the Hon. William Marsh, Judge, presiding.
    This was an action of debt, brought by Sarah A. Kingsbury, against Alexander T. Miller, George A. Miller and Joseph Simons, on a penal bond executed on the 24th day of June, 1886. It appears from the averments of the declaration, that Alexander T. Miller and Albert B. Kingsbury were partners in business, under the firm name of Miller & Kingsbury; that Kingsbury died intestate on the 16th day of May, 1886, and Sarah A. Kingsbury was appointed administratrix of his estate by the county court of Adams county, on May 25, 1886. It also appears that Sarah A. Kingsbury, administratrix of the estate of said Albert B. Kingsbury, deceased, on, to-wit, the 11th day of June, A. D. 1886, filed her bill in chancery in the circuit court of Adams county, on the chancery side thereof, against Alexander T. Miller, praying, in effect, for an adjustment and settlement of the affairs of said co-partnership of Miller & Kingsbury, and for the appointment of a receiver of the property of said co-partnership. It is also averred, that under and by virtue of an order of the circuit court, a bond was filed in said cause, executed by Alexander T. Miller, George A. Miller and Joseph Simons, in which they acknowledged themselves held and firmly bound unto Sarah A. Kingsbury, administratrix of the estate of Albert B. Kingsbury, deceased, or to her successor or successors, in the penal sum of §5000, conditioned as follows:
    “Now, therefore, if the said Alexander T. Miller shall faithfully discharge his duties as the surviving partner of the late firm of Miller & Kingsbury, composed of the following members, to-wit, said Albert B. Kingsbury, deceased, and said Alexander T. Miller, (the said Alexander T. Miller being now the surviving partner of said Albert B. Kingsbury,) and shall make a faithful settlement of the affairs of the said co-partnership, and shall account for and pay over to the said Sarah A. Kingsbury, administratrix of the estate of Albert B. Kings-bury, deceased, or her successor or successors, whatever shall be found to be due her as such administratrix, after paying partnership debts and costs of settlement, at such time when the circuit court of Adams county, in the State of Illinois, shall order such payment to be made by the said Miller, then the above obligation to be void, otherwise to remain in full force and virtue.”
    It is also averred, that the bond was approved by the circuit court of Adams county, and filed in said cause in chancery. It is then averred in the declaration, that Alexander T. Miller did not faithfully discharge his duties as the surviving partner of the late firm of Miller & Kingsbury, composed as aforesaid; that on the 20th day of November, A. D. 1886, the said Alexander T. Miller, as said surviving partner, presented and filed in said Adams county court, his report of his acts and doings as said surviving partner of the firm of Miller & Kingsbury, from June 9, 1886, to November, 1886; that said Alexander T. Miller, in and by said report, showed a balance of moneys of the said firm in his hands, over and above his outlays, of $3772.59; that afterwards, and on December 7, 1886, the question of the disposition of said balance came on before said county court for a hearing thereon; that upon such hearing thereof, and on the date last named, the said county court ordered, adjudged and decreed that said Alexander T. Miller,

      as said surviving partner, pay to the creditors of the firm of Miller & Kingsbury, outside of and other than said Alexander T. Miller himself, and said Sarah A. Kingsbury, administratrix as aforesaid, the sum of $3772.59, that being the balance in his hands as shown by said report, and that said Alexander T. Miller pay each of said firm creditors, exclusive of himself and said Sarah A. Kingsbury, administratrix as aforesaid, forty per cent of the principal sum of their claims, as mentioned by said Miller in his inventory of property and schedule of liabilities herein filed on June 9, 1886, within one day from the date of entry of this decree, and that he pay the residue of said sum of $3772.59 ratably and pro rata upon the principal sum of the claims last named, within ten days from the date of the entry of this decree,—from which last named order and decree of said county court no appeal was ever taken, and the same remains in full force and effect; and the plaintiff avers that the following was the schedule of liabilities last named, to-wit:
    To First National Bank of Quincy, on note for $2500, dated March 24, 1886, and payable ninety days from date, with interest at eight per cent - - - $2500.00
    To First National Bank of Quincy, on note for $1000, dated March 24, 1886, and payable ninety days from date, with interest at eight per cent from maturity............. 1000.00
    To said Albert B. Kingsbury, for money advanced to said firm, balance due November 16,1885 - - 1788.99
    To Quincy Lumber Co., on note for $261, dated December 29,1885, and payable ninety days from date, with interest at eight per cent..... 270.28
    To Joseph Simons, on note for $80, dated March 31, 1886, and payable thirty days from date, with interest at eight per cent........ 81.20
    To James M. Bishop, to balance due on insurance - 270.00
    To Frederick M. Whipple, for lumber furnished said firm........-.....- 20.00
    And the said plaintiff avers, that though the said Alexander T. Miller did comply with the said order of said county court, to the extent of paying forty per cent of the- principal sum of the claims in said order and decree of said county court mentioned as those on which he should pay forty per cent on the principal sum, yet the said Miller did not, within ten days from the date of entry of said order, or at any other time, pay to the First National Bank of Quincy, Illinois, upon the $2500 note in said schedule of liabilities mentioned, or upon the $1000 note in said last named schedule mentioned, or either ' of them.
    To the declaration the defendants interposed a demurrer, which the court overruled, and defendants electing to abide by the demurrer, plaintiff’s damages were assessed at $1818.47, upon which a judgment was rendered. The judgment, on appeal, was affirmed in the Appellate Court, and to reverse the latter judgment, this appeal is prosecuted by the defendant, Alexander T. Miller.
    Mr. J. F. Carrott, and Mr. J. H. Williams, for the appellants :
    The liability of a surety can not be extended by implication or construction. His liability is strictissimi juris, and can not be extended beyond the reasonably necessary import of the language of his bond. Miller v. Stuart, 9 Wheat. 703 ; United States v. Boyd, 15 Pet. 207; Leggett v. Humphreys, 21 How. 76; Smith v. United States, 2 Wall. 235; People v. Tompkins, 85 Ill. 417; Mix v. Singleton, 86 id. 194; Phillips v. Manufacturing Co. 88 id. 305; Insurance Co. v. Johnson, 120 id. 622.
    The bond, and the order of the circuit court of Adams county in pursuance of which it was given, must be construed together to arrive at the intention of the court and of the parties. Elmendorf v. Lansing, 5 Cow. 468.
    The recitals in such bonds undertaking to express the precise intent of the parties, controls the condition or obligation which follows, and does not allow it any operation more extensive than the recital which is its key,—and so it has been held in many cases. London Assurance Corporation v. Bold, 6 Ad. & El. (N. S.) 514.
    If the obligation expressed in the bond is larger than the= recital, it will be restrained by it, on the principle that the condition is to be confined to the subject matter. Metcalf on Contracts, 280; Arlington v. Merricks, 3 Saund. 403, note 5; Weston v. Mason, 3 Burr. 1725; United States v. Cheeseman, 3 Sawyer, 424; Commonwealth v. Toms, 45 Pa. 408; Smith v. United States, 2 Wall. 219; Liverpool Waterworks v. Atkinson, 6 East. 507; Banking Association v. Conklin, 90 N. Y. 116; Brandt on Sureties, sees. 78-80, 138, 142, 143; Sanger v. Baumberger, 51 Wis. 592; Sewing Machine Co. v. Mullins, 41 Mich. 339.
    In the case of an agreement to do or refrain from doing any particular act, secured by a penalty, the amount of the penalty is in no sense the measure of compensation, and the plaintiff must show the particular injury of which he complains, and have his damages assessed accordingly. It may, therefore, be laid down as a settled rule, that no other sum can be recovered-under a penalty than that which shall compensate the plaintiff for his actual loss. Sedgwick on Damages, (6th ed.) 487..
    The remedy given by statute to compel a surviving partner to account, in the county court, with the administrator of the deceased partner, is to be governed by the same equitable rules- and principles as a proceeding in equity, and such surviving partner, on such settlement, may be allowed, as a set-off, his just share of any demands held by him against the deceased partner, without first having procured their allowance. Mack v. Woodruff, 87 Ill. 570.
    Mr. William McFadon, for the appellee:
    The question in this case is not as to the person to whom the money sued for upon the bond in controversy shall be paid when collected. Chadsey v. Lewis, 1 Gilm. 153; Manlove v. McHatton, 4 Scam. 95.

      The simple question is, has the suit been brought by the party in whom the legal interest is vested. Lovejoy v. Steele, 18 Bradw. 281; 1 Chitty’s Pl. 2; Newhall v. Turney, 14 Ill. 339; Larned v. Carpenter, 65 id. 544.
    The instrument being a bond under seal, the obligee is the proper party to sue upon it. 1 Chitty’s PI. 3, 4; Saunders v. Filley, 12 Pick. 554; Johnson v. Foster, 12 Metc. 167; Mellan v. Baldwin, 3 Gray, 486.
    In the case of the bond in suit, the legal interest is clearly in Sarah A. Kingsbury. 1 Chitty’s PI. 2, 3,4, and eases cited.
    This is true, though the promise is to Sarah A. Kingsbury, administratrix, and her successor or successors in office, the test of the truth of this proposition being, that in the event of her death, not her successor in office, but her executor or administrator, would have to bring suit for a breach of the condition. Stevens v. Hay, 6 Cush. 230; Lovejoy v. Steele, 18 Bradw. 283.
    The promise is to A B, administratrix,'—not as administratrix; and the words “administratrix, ” etc., are descriptio persones, and may be rej ected as surplusage. Newhall v. Tunny, 14 Ill. 338; Jeffries v. McLean, 12 Mo. 540; Bradley v. Graves, 46 Ala. 277.
    The bond was made after the death of A. B. Kingsbury, and the rule is very clear, that upon a promise to one who is his administrator, the suit must be brought by the promisee in his individual capacity. 2 Williams on Executors, (6th Am. ed.) 878; Austin v. Munso, 47 N. Y. 366.
    But in the case of a bond to the executor or administrator, taken after such death, it must be sued on individually, and not in the' representative capacity. 2 Williams on Executors, (6th Am. ed.) p. 882; Partridge v. Court, 5 Price, 419; Hosier v. Arundel, 3 Bos. & Pul. 7; Newhall v. Turney, 14 Ill. 338; Jeffries v. McLean, 12 Mo. 540.
    Properly construed, the condition of the bond relating to the faithful discharge by Miller of his duty as surviving partner, includes within itself a promise to pay partnership moneys in his hands upon partnership debts, and to the persons holding the same. Lewis v. Crockett, 3 Bibb, 197; Robertson v. Morgan, 3 B. Mon. 307; Wilson v. Stillwell, 9 Ohio St. 468; Cannon v. Cooper, 39 Miss. 384; 2 Sutherland on Damages, 39; Rev. Stat. 1874, chap. 3, secs. 85-89.
    The breach of the condition of the bond in suit relied on, is a failure to faithfully discharge his duties as the surviving partner of the late firm of Miller & Kingsbury, and not of those conditions of the bonds to which the argument of appellant is mainly devoted.
    The duty of a surviving partner to settle the co-partnership business and pay off the firm debts, exists independently of any action of a court, but the county court has full power to enforce the duty. Miller v. Jonas, 39 Ill. 60; McKean v. Vick, 108 id. 385; Nelson v. Hayner, 66 id. 492; Rev. Stat. 1874, chap. 3, sec. 89.
    The bond in this case being for performance of a certain thing, viz., the faithful discharge of the duties of a surviving partner, the measure of damages in the ease is the value of the performance. 2 Sutherland on Damages, 611; Lewis v. Crockett, 3 Bibb, 197; Robertson v. Morgan, 3 B. Mon. 307; Cannon v. Cooper, 39 Miss. 384; Rev. Stat. 1874, chap. 3, secs. 85, 89.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

The bond upon which the action was brought was filed under an order of the circuit court of Adams county, in a certain cause in chancery pending in the court, wherein Sarah A. Kingsbury, administratrix of the estate of Albert B. Kingsbury, deceased, was complainant, and Alexander T. Miller was defendant, and it is insisted that the principal and his sureties are not liable to an action on the bond until he has failed to obey some order or decree of the circuit court of Adams county, in relation to the partnership matters concerning which the bond was executed. It is true that the bond provides that “Miller shall make a faithful settlement of the affairs of the said co-partnership, and shall account for and pay over to the said Sarah A. Kingsbury, administratrix of the estate of Albert B. Kingsbury, deceased, or her successor or successors, whatever shall be found to be due her as such administratrix, after paying partnership debts and costs of settlement, at such time when the circuit court of Adams county * * * shall order such payment to be made by the said Miller,” and if this was the only provision of the bond, the position of the defendant might be regarded as well founded; but such is not the ease. The bond contains a provision, (and that is the one upon which the action is based,) that Alexander T. Miller shall faithfully discharge his duties as the surviving partner of the late firm of Miller & Kingsbury. In placing a construction on the bond, all of its provisions are to be considered and carried into effect, and where it is possible, the intention of the parties, as declared in each provision of the instrument, should be enforced. This provision that Miller shall faithfully discharge his duties as surviving partner, is not dependent upon that clause of the bond relating to an order of the circuit court of Adams county. It is an independent provision that the parties saw proper to incorporate into their contract, and by the execution of the bond, as the parties became bound by it, no reason occurs to us why it may not be enforced.

It is also insisted, that an action can not be maintained on the bond in the name of Sarah A. Kingsbury, in her individual capacity,—that she could only sue as administratrix. It is true that the bond, as executed, provides that the obligors are “held and firmly bound unto Sarah A. Kingsbury, administratrix of the estate of Albert B. Kingsbury, deceased, or to her successor or successors;” but notwithstanding this provision, we are of opinion that the action was properly brought,—that the words following the name of Sarah A. Kingsbury may be regarded as deseriptio personae, and may be rejected as surplusage. In 2 Williams on Executors, (6th Am. ed.) bottom page 878, the author states the rule thus: “So with respect to matters of contract, it has been decided in a variety of modern cases, that an executor or administrator may sue as such, as well as in his own name, upon a contract made with him in his representative capacity.” See also note k, on same page. Also, Parker v. Wilson, 4 Hill, 57; Austin v. Monroe, 47 N. Y. 366; Wolf v. Beaird, 123 Ill. 593.

In Newhall v. Turney, 14 Ill. 338, this court held that a note given to A, administrator of the estate of 0, may be sued upon by A in his own name, without describing himself as administrator. Here, as the contract or bond was made to the plaintiff after the death of her intestate, although she was described as administratrix, we think she had the right to bring the action in her individual name. Again, it was a matter of no moment, so far as the defendants are concerned, whether the action was brought in the individual or representative capacity of the plaintiff. In either event, whatever amount is recovered will be held for the benefit of the estate of Albert B. Kings-bury, deceased, and whatever defense the defendants would be entitled to interpose if the action had been brought in the ' name of plaintiff as administratrix, may be set up to the present action. .

The next question relates to the measure of damages. As has been seen, the condition of the bond was, that Alexander T. Miller shall faithfully discharge his duty as surviving partner. The duty of a surviving party is so well settled that there is no room for controversy over the question. He was required to proceed without delay, and convert the assets into money, and when this was done, his duty required him to proceed at once to pay off the partnership debts. Now, as a breach, it is alleged in the declaration that Miller did not faithfully discharge his duties as the surviving partner; that on the 20th day of November, 1886, he presented and filed-in the ■ county court of Adams county a report of his doings; that by said report he showed a balance of firm moneys in his hands, over and above outlays, amounting to the sum of $3772.59; that on the 7th day of December, 1886, the question of the disposition of the balance arose in the county court, and the court ordered and decreed that Miller should pay said sum to certain creditors of the firm; that no appeal was taken from the order, but it remains in full force; that Miller failed to comply with the order, etc. Under these facts, as they are admitted by the demurrer, was the plaintiff confined to a recovery of nominal damages merely ? We think not. The bond was not given as an indemnity or as security, but, on the other .hand, the bond required the performance of certain affirmative acts, and if these were not performed, then the plaintiff ought to recover such damages as she has sustained by the failure to perform those acts. The failure of the surviving partner to pay the firm debts named in the order, left the estate of Kingsbury liable for the same. The rule that should apply in a case of this character is well stated in 2 Sutherland on Damages, 611, as follows: “Where the contract is more than for indemnity against damages, where a party stipulates against the doing of certain acts or the existence of certain conditions, or for * * * performance of any kind, * * * then the value of performance of the contract will measure the •damages recoverable for the breach.”

A question has been raised as to the sufficiency of the evidence upon which the judgment was rendered. There was evidence tending to prove the amount recovered, and under our statute, the judgment of the Appellate Court, affirming the judgment of the circuit court, is conclusive.

Perceiving no error, the judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Per Curiam :

text:
    H. C. Jordan et al. v. Calvin Moore et al.

      Filed at Springfield

      April 5, 1889.

      Appeal—amount involved less than §1000—absence of certificate of importance. Where the amount involved, on a bill and cross-bill to-foreclose certain mortgages, is less than $1000, the judgment of the-■Appellate Court in affirming the decree of the trial court is final, in the absence of a certificate of importance, and a writ of error to the Appellate Court will be dismissed.
    Writ of Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of Coles county; the Hon. J. W. Wilkin, Judge, presiding.
    Messrs. Craig & Craig, for the plaintiffs in error.
    Mr. L. C. Hanley, for the defendant in error Clark.
   Per Curiam :

This was a bill to foreclose a mortgage. One of the defendants to the bill filed a cross-bill, setting up a second mortgage, and praying for a foreclosure thereof. Moore, another defendant, filed a cross-bill, setting up his rights in the mortgaged premises. On the hearing, the circuit court dismissed the cross-bill of Moore, and decreed a foreclosure of the two mortgages. On appeal to the Appellate Court, the decree was modified as to the dismissal of the cross-bill of Moore, but was affirmed as to the foreclosure of the two mortgages. To reverse the judgment of the Appellate Court, the complainant in the original bill, and the complainant in the cross-bill, sued out this writ of error.

Upon looking into the record, it appears that the amount involved is only $657, and the record contains no certificate of importance. In a case of this character, where the amount involved is less than $1000, in the absence of a certificate of importance the judgment of the Appellate Court is final, and. the writ of error will have to be dismissed.

Writ of error dismissed,

Mr. Justice Wilkin took no part in this decision.

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author: Mr. Justice Wilkin

text:
    The Village of Auburn v. Samuel F. Goodwin et al.

      Filed at Springfield

      April 5, 1889.

    1. Town plat—comity surveyor’s certificate—how far essential. Tinder the ¡Revised Statutes of 1845, the county surveyor’s certificate td the plat of a town or addition thereto, is a requisite part of such plat, although acknowledged by the proprietor. The plat is entitled to-neither acknowledgment nor record until it has been first certified by the county surveyor. His certificate must also be recorded, and form a part of the record. Then, and not till then, does the plat become* evidence of title in the corporation to the streets and alleys designated on the plat.
    2. The plat or map of a town or addition, under the law of 1845, operates as a conveyance in fee of the streets and alleys to the corporation only by force of the statute. If the plat is not made out, certified! and acknowledged substantially as required by the statute, it affords no evidence of title in the corporation to the streets and alleys.
    3. Same—former decision. The case of Gebhardt v. Reeves, 75 Ill. 305, in so far as it holds that the certificate to the survey and plat of a town or addition thereto may be legally made by a surveyor other than a. county surveyor, under the statute of 1845, and' in so far as it holds that the acknowledgment and recording of a town plat vests the fee to-streets and alleys in the municipality regardless of a compliance with the requirements of the statute as to the survey, plat and certificate of a county surveyor thereto, is in conflict with Trustees v. Walsh, 57 Ill. 360, and Thomas v. Eckard, 88 id. 596, and is overruled.
    4. Same—certificate by deputy county surveyor—but to be in the name of the principal. As county surveyors, under the law of 1845, were au■thorized to appoint deputies, it follows that the provisions of the statute as to the survey, plat or map, and certificate to the same, will be complied with if it appears to have been done by the county surveyor in person, or by his deputy.
    5. But as a deputy officer, as a rule, subject, perhaps, to some special •statutory exceptions, derives all his powers and authority from his principal, in all his official acts he must act in the name of his principal. Therefore a deputy county surveyor, acting in his own name, and not ■that of his principal, in making a survey and plat of a town addition, does not bind the principal, or make his act that of the county surveyor.
    6. Same—sufficiency as to certainty. If the plat and certificate of a .surveyor are such that a competent surveyor, from the data given, may locate the plat, lots and blocks, streets and alleys, and determine the dimensions of the same, they will be sufficiently definite and certain.
    7. Easement—non-user—presumption of extinguishment. The nonuser of an easement by the public for twenty years affords a presumption of extinguishment, though not a very strong one, in a case unaided by -circumstances; but if there has been, in the meantime, some act done by the owner of the land sought to be charged with the easement, inconsistent with or adverse to the right, an extinguishment will be presumed.
    Where the owner of a block of ground in a village has been in the ■open, adverse and exclusive possession of the alleys running through the same, for more than twenty years, the non-user of the alleys for such length of time will bar a recovery of the same, in ejectment by the village.
    9. Ejectment—plaintiff must recover on the strength of his own title. In an action of ejectment, the plaintiff must recover, if at all, upon the strength of his own title. The legal title alone is involved.
    10. Peactice—competency of evidence—how questioned—hill of exceptions. If a defendant in ejectment desires to raise the question of the competency of the plaintiff's evidence of title, he must incorporate the same into the bill of exceptions, showing an objection thereto and -exception to the ruling of the court in admitting the same, and assign cross-errors when the other party appeals, otherwise this court must presume in favor of the ruling of the trial court.
    11. Same—directing what the verdict shall he. In an action of ejectment by a village, to recover certain alleys claimed under a statutory -dedication by a former owner, by plat, the plat was excluded as evidence, and the plaintiff’s own evidence showed such an abandonment cr non-user as was sufficient to defeat a recovery. At the close of the plaintiff’s evidence, the court, on motion, instructed the jury to find for the defendant: Held, no error in giving the instruction.

      Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Mr. G. W. Murray, and Messrs, Gross & Broadwell, for the appellant:
    The law in force at the time the plat was executed and recorded, respecting the laying out and platting of towns, was the act of 1833, re-enacted in 1845. (Rev. Stat. 1845, chap. 115, sec. 17.) The effect.of the plat was to vest the fee of the streets and alleys in the village.
    Every fact contemplated by the law to be shown by the surveyor’s certificate is here shown. Maywood Co. v. Village of Maywood, 118 Ill. 61.
    The law did not require the survey, plat and certificate to be made by a county surveyor. (Gebhardt v. Reeves, 75 Ill. 301.) But if it did, it was made by a deputy county surveyor, and his acts bound his principal. Rev. Stat. 1845, p. 573, secs. 4, 5.
    A competent surveyor could readily locate the plat, lots, streets and alleys, and therefore the plat is sufficiently definite. Village of Winnetka v. Prouty, 107 Ill. 218; Colcord v. Alexander, 76 id. 581.
    The plaintiff' had the right to resort to parol evidence to sustain the grant. Colcord v. Alexander, 76 Ill. 581; Williams v. Warren, 21 id. 541; Stevens v. Wait, 112 id. 544; Grier v. Puterbaugh, 108 id. 602.
    Appellees can not question the ruling of the court admitting in evidence the certificate of entry and deed from Newkirk. Before they could do so, they must have preserved their exception in the bill of exceptions, and assigned cross-errors upon the record thereon. If they would claim that these instruments affecting title were improperly admitted in evidence, they should have set them out in the bill of exceptions. Lee v. Mound Station, 118 Ill. 304; McLaughlin v. Walsh, 3 Scam. 185; Ballance v. Leonard, 37 id. 43; Hayes v. Lawson, 83 id. 182.

      Messrs. Conbling & Grout, for the appellees :
    It nowhere appears that the papers offered in evidence were not sufficient to sustain the verdict and judgment below. Roger v. Hall, 3 Scam. 5; McLaughlin v. Walsh, 3 id. 185; Ballance v. Leonard, 37 Ill. 43; Hayes v. Lawyer, 83 id. 182; Lee v. Mound Station, 118 id. 312.
    The plat is not sufficient, upon its face, to locate the property sought; nor is there any sufficient conveyance of the alleyways, and the plat was not sufficiently certified. Rev. Stat. 1845, p. 115, chap. 25, secs. 17-21.
    The plat was made by a deputy; but if the work was done by him, the certificate and return should be made in the name of ,the principal. 1 Blackstone’s Com. 344, 345; Glencoe v. People, 78 Ill. 382; Ryan v. Eads, Breese, 217.
    The expression used in Gebhardt v. Reeves, 75 Ill. 301, re-on by appellant, may be considered obiter dictum. See Thomas v. Eckard, 88 Ill. 596.
    An acceptance is necessary to vest title under a plat. Littler v. City of Lincoln, 106 Ill. 353; Village of Winnetka v. Prouty, 107 id. 225; City of Peoria v. Johnson, 56 id. 51.
   Mr. Justice Wilkin

delivered the opinion of the Court:

At the time of the bringing of this suit, appellees were in possession of block 3, in Buck’s addition to the town of New Auburn, having it enclosed by a continuous fence. Appellant claims title in fee,to aHeys running north and south and east and west through the center of said block, by virtue of a statutory dedication, claimed to have been made by John and Avis Buck, in January, 1858, and brings this action in ejectment to recover possession of the same..

On the trial, appellant offered in evidence a certificate by the Auditor of State, showing the entry of the land on which it is claimed the dedication was made, by Matthew Newkirk, October 24, 1835, and a deed from said Newkirk for the same, to John Buck. An objection to each of these was interposed by appellees, and overruled. It then offered a plat of Buck’s addition to the town of New Auburn, together with certain certificates thereto attached, but on objection it was held incompetent, and excluded. Previous to the introduction of this documentary proof, appellant offered parol evidence, and, among other witnesses, introduced and examined appellee Samuel F. Goodwin, who testified that he owned and enclosed the south half of said block as early as 1858, at which time he erected a fence through the center of the block, east and west, and has maintained the same ever since; that in the year 1866 he also enclosed the north half, and has since maintained the same. He also testified that no alleys were ever opened or used through said block, or at any time claimed by the village, except that a street commissioner thereof gave him notice to open shortly prior to the bringing of this suit. There is no testimony whatever tending to prove that the village authorities, at any time, claimed title or attempted to assert its right to the alleged alleys prior to the notice above mentioned, nor is the evidence of said Goodwin as to his exclusive, uninterrupted possession of the said block 3, including these alleys, if they ever existed, in any manner contradicted or impeached. The above mentioned plat having been excluded, the court below, at the request of appellees, instructed the jury to return a verdict for defendants, which being done, judgment was rendered thereon. No evidence was introduced by appellees, and no offer was made by appellant to introduce further evidence on its behalf after the adverse ruling as to the admissibility of said plat.

Appellant insists upon a reversal on the single ground that the court below erred in taking the case from the jury, and it treats that ruling as based on the exclusion of the plat alone, whereas appellees insist, that, independent of the question of its competency, the instruction to find in their favor was proper, both because, as they say, the evidence fails to show title in John Buck to the land alleged to have been platted, and because there is no proof of an acceptance by the village authorities.

Among other objections urged to the plat in the court below, it was insisted that it was not shown to have been certified to by a county surveyor, and that it was void for uncertainty. Deeming all other objections untenable, and of no importance in the decision of the ease, we shall notice but the two named.

The addition being laid off in 1858, in order to become valid must have conformed to the requirements of chapter 25 of the statute of 1845. Section 17 of that chapter provides that the proprietor of a town or addition “shall cause the same to be surveyed, and a plat or map thereof made by, the county surveyor, if any there be, of the county in which such town or addition is situated; but if there be no county surveyor in the county, then, in that case, by the county surveyor of an adjoining county.” Section 20 provides that the plat or map, after having been completed, shall be certified by the surveyor and acknowledged by the proprietor, which certificate of the surveyor, and acknowledgment, shall be recorded, and form a part of the record. The following section (21) provides that “the plat or map, when made out, certified, acknowledge! and recorded, as required by this division, * * * shall be deemed, in law and equity, a sufficient conveyance to vest the fee simple of all such parcel or parcels of land as are therein expressed, and shall be considered, to all intents and purposes, as a general warranty against such donor or donors, their heirs and representatives, to the said donee or donees, grantee or grantees, for his, her or their use, or the uses or purposes therein named, expressed or intended, and for no other use or purpose whatever. And the land intended to be for streets, alleys, ways, commons or other public uses, in any town or city, or addition thereto, shall be held in the corporate name thereof, in trust, to and "for the uses and purposes set forth or expressed or intended.”

The certificate of the surveyor to the plat in question is-signed, “Cortes Fessenden, Dep’t. Surveyor, S. Co.,” and it is objected, on behalf of appellees, that this is no compliance with the sections of the statute above quoted. Counsel for appellant insist that so much of the statute as requires the plat or map to he made by a county surveyor may be wholly ignored, and the plat have all the force of a statutory conveyance of the streets and alleys to the municipality though made by one not a county surveyor, and in support of this position cite Gebhardt v. Reeves, 75 Ill. 305. While a part of the language used in that case justifies the position assumed, it was unnecessary in the decision of that case. The language must have been used under a misapprehension of the scope of the authorities on which it was based, is in conflict with Trustees et al. v. Walsh et al. 57 Ill. 365, and Thomas v. Eckard et al. 88 id. 596, and in so far as it holds that the certificate to the survey and plat may be legally made by a surveyor other than a county surveyor, under the statute of 1845, and in so far as it may seem to hold that the acknowledgment and recording of a town plat vests the fee to streets and alleys-in the municipality, regardless of a compliance with the requirements of the statute as to the survey, plat and certificate of a -surveyor thereto, that case is overruled. "By the very terms of the statute, the surveyor’s certificate is a requisite part of the plat, when acknowledged by the proprietor. The plat is neither entitled to acknowledgment or record until it has first been certified by the surveyor. His certificate-must also be recorded, and form a part of the record. Then, and not until then, does it become evidence of title. Here the legal title alone is involved. As in every action of ejectment, the plaintiff must recover, if at all, upon the strength of its legal title. The plat or map operates as a conveyance in fee of streets and alleys to the corporation only by force of the statute, and when it requires that it shall be “made out, certified, acknowledged and recorded, as required by this division,n io have the effect of a conveyance, it is not within the province of a court to say it shall become a muniment of title notwithstanding a plain requirement has been ignored. In 57 Ill. 365, supra, it was said the plat of Laflin and Dyer’s subdivision was introduced in 'evidence. It purports to have been acknowledged by the proprietors and recorded, but it was not, nor is it claimed to have been, made in conformity with the -statute as to the mode of laying out towns and making additions thereto. No statutory effect can therefore be accorded io the plat. In 88 Ill. 596, supra, it is held, that to become valid and binding as a town plat, all of the requirements of the statute must be substantially complied with, and one of the defects pointed out in the plat then before the court was, that it did not appear to be certified to by the county surveyor. The cases cited in the opinion in Gelhardt v. Reeves, supra, as holding that the acknowledgment and recording of the plat ■operate as a conveyance, are in harmony with this view. They -each contemplate the making out and certifying, which, by the statute, are made prerequisites to the acknowledgment and recording.

The next question, then, is, does it sufficiently appear that this certificate was, in legal effect, made by the county surveyor ? That the statute then in force authorized the appointment of deputies by county surveyors, is not questioned. That statute also provided that county surveyors should make all surveys within their counties that they were called upon to make, either by themselves or deputies properly authorized, and it must therefore be conceded that the provisions of the statute as to the survey, plat or map, and certificate to the ■same, would be complied with if it appeared to have been done by the county surveyor in person, or by his deputy. It is well understood that a deputy derives all of his power and authority from his principal, and can only act for and in his place, and must act in his name. While there are exceptions io this rule, growing out of peculiar statutory provisions, we know of none which would authorize the sustaining of the certificate in question. In Ryan v. Eads, Breese, 217, it was said a deputy sheriff can only act in the name of his principal, and a default taken upon a return by one who signed himself deputy sheriff, was set aside. Also, in Ditch v. Edwards, 1 Scam. 127, the return to a summons signed by a person as deputy sheriff, without using the name of the sheriff, was held to be no return. The same doctrine is announced in Village of Glencoe v. The People, 78 Ill. 384. We are of opinion, therefore, that the deputy surveyor, attempting to act in his own name, and not that of his principal, in no way bound the county surveyor, nor did he, within the meaning of the statute, make his act that of the county surveyor. It is to be observed that the present statute is different from that of 1845, in that it only requires the plat and certificate to be made by a competent surveyor.

In support of the objection as to uncertainty, it is insisted that the plat and certificate of the surveyor are so indefinite and uncertain as to render it void, and that it is impossible, from them, to locate the alleys in question. Unquestionably, the surveyor, by a little more care and diligence, could have made that directly clear and certain, which we are only able to attain indirectly or by a process of reasoning. Still, if the latter is practicable, so that a competent surveyor, from the data given, could locate the plat, lots and blocks, streets and alleys, and determine the dimensions of the same, it would be sufficient, and we think that degree of certainty does appear here. The plat was, however, properly excluded, because it was not certified by a county surveyor, or in the name of a county surveyor by his deputy.

But could appellant have recovered on the proof made, even if the plat had been regular, and admitted in evidence ? The question of proof of title in John Buck, attempted to be raised by appellees, is not before us. The record does show that proof of such title was made. The competency of that evidence could only be questioned here by appellees, by having had it incorporated in the bill of exceptions, showing their objection thereto, and exceptions to the ruling of the court in admitting it, and then assigning cross-errors, all of which has been omitted. In the present state of the record, we must presume in favor of the competency of the proof and the correctness of the ruling of the trial court.

The other point made by appellees in support of the instruction to find in their favor, properly stated, must, in our opinion, be sustained. It is not, however, so much on the ground of a failure to prove acceptance by the village authorities, as that by its own evidence it has shown such an abandonment or non-user as will defeat its recovery. “Mere non-user for twenty years affords a presumption of extinguishment, though not a very strong one, in a case unaided by circumstances ; but if there has been, in the meantime, some act done by the owner of the land charged with the "easement, inconsistent with or adverse to the right, an extinguishment will be presumed.” (3 Kent’s Com. p. 448.) This text is quoted with approval, and applied to a municipal corporation attempting to recover possession of a strip of land claimed as part of one of its streets, in City of Peoria v. Johnston, 56 Ill. 51. It is there said: “Conceding this highway was laid out as claimed by appellant, and conceding there was an intention to dedicate the premises on the south-east of section 4, we are of opinion that the adverse possession of appellee, open and exclusive as it has been, and the complete non-user of the easement by the public for more than twenty years, are a sufficient answer to the claim now made by the city.”

In Village of Winnetka v. Prouty, 107 Ill. 218, which was a bill in chancery to enjoin the village from entering a certain enclosure for the purpose of opening a street, it was shown that the enclosure had remained for more than twenty-one years, and the village had at no time attempted to take possession of the alleged street. After commenting upon the plat relied upon by the village, it is said: “There was, therefore, as we understand this record, no definite statutory dedication of any particular quantity of ground for this street, and the pi’oof fails to show a common law dedication. Indeed, we are inclined to the belief that if the proof in respect to the plat were free of objection, the evidence shows such an abandonment by the public as would now preclude the opening of the street.” This doctrine is supported hy other decisions of this court, and the evidence in the case before us brings it clearly within the rule announced. The alley running east and west, and the south half of that running north and south, have been in the open, adverse and exclusive possession of appellees for nearly thirty years, and the whole of the one north and south for more than twenty years prior to the bringing of this suit. We are of opinion that there has been such non-user on the part of appellant as to bar its right of recovery, and that in any view of the case, as shown by the proof, the instruction to find for defendants was right.

Judgment affirmed.