text:
    Johanna Meyer v. Amzi Mintonye.

      Filed at Springfield May 9, 1883.

    1. Judicial sale—strict compliance with the law essential to divest title. In judicial proceedings in invitum, for the purpose of divesting the title to an estate of one person and conferring it upon another, under the constitution there must be a strict compliance with the requirements of the law, and the purchaser, in all such cases, must know at his peril that the law has been complied with. If this is not done, he fails to acquire a good title, however much he may pay for the property.
    2. Same—sale under void execution—is also void. The validity of every execution sale, and the sheriff’s deed thereon, depends upon the officer’s authority to make such sale, and that depends in all cases upon the character and validity of the process under which he acts. If, by reason of the judgment being void, or having for any cause become incapable of being enforced by execution, as, where some of the parties to it have died, and there has been no subsequent revivor of it, and execution should nevertheless be sued out, it will confer no authority upon the officer executing it, and a sale under it, and a deed made in pursuance thereof, will be absolutely null and void.
    3. Execution—issued after the death of the plaintiff—when valid amd when not. An execution sued out upon a judgment after the death of the plaintiff therein, by his administrator, without first having revived the judgment in his favor, by scire facias, or filing his letters of administration, under the statute, is absolutely void, and no rights can be acquired under the same.
    4. Redemption from judicial sale—,by whom, other than the judgment debtor—amd of the rights acquired thereby. The mere act of redeeming from a judicial sale may be done by one not having the right to redeem, as well as by one having such right, provided the purchaser sees proper to accept of the amount of the charge or incumbrance, and the effect of such redemption will be to divest all the rights acquired under the sale. If the redemption be made by a judgment creditor, in order to be availing to him under his statutory right to redeem, and to pass the title in case of a second sale in satisfaction of his own judgment, he must have a valid execution, followed by a sheriff’s deed executed in conformity with the statute. It does not follow that because a redemption in fact has been effected, the redeeming creditor will get a good title to the land, without the existence of the conditions named.
    5. So in this case, land had been sold under a decree of foreclosure of a mortgage, and the administrator of a deceased judgment creditor sued out an execution on the judgment in the name of the deceased plaintiff, without reviving such judgment or filing and recording a copy of his letters of administration in the office of the clerk of the court, and deposited with the sheriff the amount necessary to redeem from the master’s sale, and caused a levy to he made upon the premises as a redemption creditor. The purchaser at the master’s sale accepted the redemption money of the sheriff, and the property was again sold and purchased by the administrator, to whom a sheriff’s deed was made, and the purchaser at the prior sale thereupon assigned his certificate of purchase to him, upon which the administrator also received a master’s deed: Held, the administrator derived no title from either the sheriff’s or master’s deed, because the execution under which the redemption and sheriff’s sale were made, was void, and conferred no right to redeem, and because by the acceptance of the redemption money by the first purchaser, his purchase, and all rights thereunder, were effectually destroyed, and hence no deed could be made to him or any one else on his certificate of purchase.
    6. Same—redemption by judgment creditor—what right or title he acquires thbreby. As the acceptance of the money necessary to redeem from a master’s sale, by the purchaser, deposited by one having no right to redeem, is simply to extinguish all rights under the purchase, the legal effect of such redemption is to place the creditor so redeeming in the same position in respect to the land as if it had not been previously sold, but this is all. It does not relieve him of the duty of seeing that he was proceeding under legal process. The maxim of caveat emptor applies as well in cases where there has been a redemption as where there has not.
    7. Same—redemption without right—not to operate as a transfer of certificate of purchase. Where a party under a void execution deposits with the sheriff a sum sufficient to redeem from a prior master’s sale of the premises, which is accepted, the sole object being to extinguish the prior purchaser’s title under his purchase, and to enable the redemption creditor to acquire the title by a sale under his execution, which fails on account of his execution being void, the court will have no right to hold the transaction as a purchase and assignment of the prior purchaser’s certificate of purchase, as that would be to make a contract for the parties.
    8. Subrogation—only in equity. The doctrine of subrogation is a creature of equity, and has no application to an action at law, as, in ejectment. That action lies for the purpose of determining the legal title to land, and the equities of the parties, whether real or supposed, can not be adjusted in it, and such equities are not affected by such a proceeding.
    Appeal from the Circuit Court of Mason county; the Hon. Lyman Lacey, Judge, presiding.
    Amzi Mintonye, the appellee, brought to the November term, 1881, of the Mason circuit court, an action of ejectment, against'Johanna Meyer, the appellant, for the recovery of a tract of land in said county, consisting of about two hundred acres, being the same now in controversy. There was a recovery in the circuit court, and the appellant brings the case here for review.
    There is no room for controversy, nor, indeed, is there any, as to the. facts in this ease. They are clear, unequivocal and conclusive as to all matters they tend to prove, and hence nothing but pure questions of law are presented for determination. They are as follows:
    On the 21st day of August, 1869, William Dierks purchased the land in question of Caleb W. Slade, paying about one-half of the purchase money in cash, and giving his notes, five in number, secured by a mortgage on the premises, for the deferred payments. These notes amounted in the aggregate to $5300. The first note was paid by Dierks, being the only one ever paid by him. The next three were assigned by Slade to John H. Kramer, and the fifth and last to Nancy Mintonye. On the 17th of November, 1879, Rudolf Meyer, the husband of appellant, recovered a judgment, in the Mason circuit court, against the said William Dierks for the sum of $796.25, upon which an execution was duly issued, on the 2d of the following month, and subsequently returned nulla bona. Kramer, upon a bill filed by him to foreclose the Dierks mortgage, to which Nancy Mintonye and Dierks were parties, obtained at the February term, 1880, of the Mason circuit court, a decree against Dierks, and an order for the sale of the mortgaged premises. By the decree $3791.51 was found to be then due Kramer on his three notes, and $1447.18 to Nancy Mintonye on the note belonging to her. The property was sold' by the master, and purchased by Kramer, under this decree, on the 10th day of April, 1880, for $3919.72, being the amount then due him, he at the time receiving from the master the usual certificate of purchase.

      Budolf Meyer died on the 17th of November, 1880, intestate, and his widow, the appellant, was duly appointed administratrix of his estate.. On the 9th of April, 1881', the administratrix, without having caused her letters of administration to be filed and recorded in the circuit court of Mason county, where the judgment of Meyer against Dierks was obtained, or without having, by scire facias or otherwise, revived said judgment, sued out an alias execution thereon in the name of her deceased husband, and placed the same in the hands of the sheriff for execution, who subsequently, on the 11th of the same month, levied said execution on the land in controversy. The appellant thereupon paid to the sheriff having such execution the sum of $4232.70, for the purpose of redeeming from the sale under the Kramer decree, which sum the sheriff subsequently, on the 3d day of May, 1881, paid to Kramer, who, at the time, executed to the sheriff the usual receipt acknowledging payment of the amount by the sheriff as redemption money from the sale under the Kramer decree. The lands in controversy were, on the same day, in pursuance of previous notice, again offered for sale, under appellant’s alias execution, and no one offering more than the amount paid by her to redeem from the previous sale, the premises were struck off to her, and the sheriff then and there executed to her a deed for said lands, of the date last, mentioned, and thereupon returned to the clerk’s office said alias execution, with the following indorsement thereon: “No part of the debt made, the property levied upon being redeemed by Johanna Meyer, administratrix of the estate of Budolf Meyer, deceased, as judgment creditor of William Dierks, said execution was levied upon said property, and the same advertised and sold, and no greater amount than the redemption money, interest and costs of sale being bid, the same was struck off and sold to Johanna Meyer, administratrix of the estate of Budolf Meyer, deceased, for said redemption money, interest and costs of sale, and I therefore executed her a deed for said property. ”
    William Dierks, for the alleged consideration of $1700, on the 9th day of July, 1881, by a good and sufficient deed, conveyed the land in controversy to appellee, who, on the 25th of the following month, commenced the present suit. Some time after its commencement, notwithstanding the redemption from his purchase at the master’s sale, Kramer, with the view, we presume, of strengthening appellant’s title, assigned to her the certificate of purchase executed by the master to him, and the master, on her application, executed to her, as assignee of Kramer, a deed for the premises, bearing date October 21, 1881. It was admitted by appellee, on the trial, that Mary Dierks is the wife of William Dierks, and that she is in possession of the property in controversy under a lease to her from appellant, dated May 10, 1881, and extending from that date till the 1st day of March, 1882, which lease was made in her name at her husband’s request, she and her husband having lived together on the premises ever since his purchase from Slade, as heretofore stated.
    Mr. H. K. Nortrup, and Mr. W. H. Campbell, for the appellant:
    Appellant having paid off the prior lien of Kramer to preserve her own subsequent and subordinate lien, is, in equity, entitled to be subrogated and substituted to all the rights of Kramer. Freeman on Void Judicial Sales, sec. 49; Bentley v. Long, 1 Strob. Eq. 52; Howard v. North, 5 Texas, 316; Dufour v. Camfrac, 11 Mart. 610; Brobst v. Brock, 10 Wall. 519; Jackson v. Bowen, 7 Cow. 13; Blodgett v. Hist, 29 Wis. 182; Vattle’s Heirs v. Fleming’s Heirs, 29 Mo. 152.
    Purchasers having paid mortgage debt are subrogated to mortgagee’s rights. Kinney v. Knœbel, 51 Ill. 112; Hough v. Ætna Life Ins. Co. 57 id. 318; Jacques v. Fackney, 64 id. 87; Bishop v. O’Conner, 69 id. 431.

      If she was subrogated to Kramer’s rights, she received no greater right by the assignment than she had before. If equity would have compelled an assignment of the certificate of purchase to her by Kramer, he might legally do so, and she would be protected to the same extent as if she had acquired her rights by litigation.
    Mr. O. H. Weight, and Mr. John W. Pitman, for the appellee:
    The execution under which the redemption was made being in the name of a dead plaintiff, was void, and the sheriff’s sale and deed thereunder were nullities. Brown v. Parker, 15 Ill. 307; Scammon et al. v. Swartwout, 35 id. 326; Durham et al. v. Heaton, 28 id. 270; Rev. Stat. 1874, chap. 77, sec. 37.
    The payment of the redemption money to Kramer extinguished the sale to him, and discharged the land from the sale, as much so as if Dierks himself had redeemed from-that sale. Borders et al. v. Murphy, 78 Ill. 81; Clingman et al. v. Hopkie, id. 152; Mulvey v. Carpenter et al. id. 580.
    Appellant is not entitled to be subrogated to the rights of Kramer. She sought to avail of a power given by statute, and lost by her own negligence and fault. In such cases equity gives no relief. 1 Story’s Bq. Jur. sees. 151, 174, 175, 177.
    The equities of the parties being equal, a court of equity would remain silent and passive. 1 Story’s Bq. Jur. sec. 176.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Notwithstanding the extended statement of facts, it will be perceived, by a careful analysis of them, the ease itself is brought, within a very narrow compass. As the land in controversy originally belonged to Dierks, through whom both parties claim title, it is clear if appellant has succeeded to his title, she acquired it either by virtue of the sheriff’s deed to her of the 3d of May, 1881, or by the master’s conveyance to her of the 21st of October, 1881, and if she, did not acquire title by either of these conveyances, it is evident appellee has such title by virtue of Dierks’ deed to him of the 9th of July, 1881, as that, outside of the Slade mortgage, is the only conveyance he has ever made of the premises in controversy. It is only necessary, therefore, to inquire whether appellant has shown title in herself by either of the conveyances to her above mentioned.

First, with respect to the sheriff’s deed. It is hardly necessary to observe that the validity of every execution sale, and all conveyances or other evidences of title founded thereon, depend upon the authority of the officer to make such sale, and his authority in all eases depends upon the character and validity of the process under which he acts. If, by reason of the judgment being void, or having, from any cause, become incapable of being enforced by execution, as, where some of the parties to it have died, and there has been no subsequent revivor of it, and execution should nevertheless be sued out, as was done in this case, it would confer no authority whatever upon the officer executing it, and a sale made under it, and all official conveyances or other evidences of title founded thereon, would be absolutely null and void. This familiar common law doctrine has long since been fully recognized by this court, and could not now be departed from without endangering the titles to many valuable estates that have doubtless been bought and sold on the faith of it. In short, it has become a rule' of property, and it is now too late to question it. Pickett v. Hartsock, 15 Ill. 279; Brown v. Parker, id. 307; Turney et al. v. Young, 22 id. 253; Scammon v. Swartwout, 35 id. 326; Littler v. The People ex rel. 43 id. 194; Borders et al. v. Murphy, 78 id. 81; Clingman et al. v. Hopkie, id. 152; Mulvey v. Carpenter et al. id. 580. Numerous decisions to the same effect might he cited from other States, but it is not necessary to do so. The ratio decedendi in all these cases is, that the process having, been sued out in a case not authorized by law, it is inoperative and void, and consequently confers no authority upon the officer to act at all. In such cases it is wholly immaterial whether the invalidity of the process arises from the fact of the judgment being void, or from some other cause. It is sufficient that it is issued in violation of law, whatever may be the ground of such illegality. It is clear, therefore, from the above authorities, that by reason of the Meyer judgment not having been revived after his death, the execution issued thereon was unauthorized by law, and that consequently the sale, and sheriff’s deed made under it, conferred upon appellant no title to the premises.

It remains, however, to consider what effect the redemption under that execution had on the master’s sale, and the certificate of purchase issued to Kramer in pursuance thereof, for it is manifest appellant’s title depends exclusively upon whether, notwithstanding such redemption, Kramer’s interest in the land continued as before, for it is clear the certificate of purchase could not exist as a muniment of title after the title itself had ceased. It still remained evidence of the historic fact that the equitable title was once in Kramer, the purchaser, but that was all. As redemption, when applied to an estate, is the mere act of discharging some lien, incumbrance or burden upon it, as, the payment of a mortgage debt, or of a judgment or decree, either before or after sale, it is important, in considering the question we are discussing, not to confound the act of redeeming with the right to redeem, or with the right to acquire a good title under a conveyance made in pursuance of such redemption. The mere act of redeeming may always be done by one person as well as another, provided the creditor sees proper to accept the amount of the charge or incumbrance. For instance, if A should have a judgment against B, which was a lien upon the latter’s land, and C should, without the knowledge or privity of B, go to A and propose to pay off the judgment on his own account, A undoubtedly would haye the right to decline the payment without at all affecting or prejudicing his lien upon the land; yet if he should accept the money, there can be no doubt but that the redemption of the land from the incumbrance would.be complete. So in the present case, by reason of the execution being invalid, it is clear there was no right to redeem, and Kramer might well have declined to receive the redemption money, had he thought proper to do so; but this right to decline the redemption money, when tendered, like most of rights, was one that might be waived, and Kramer having seen proper to exercise it, no reason is perceived why the redemption was not complete, notwithstanding appellant acquired no title by her subsequent purchase, as we have already seen. It does not at all follow that because a redemption in fact has been effected, the redeeming creditor will necessarily get a good title to the land redeemed. That depends upon other considerations. To insure a good title there must be not only the payment of the redemption money, but also a proper levy and sale of the premises, under a valid execution, followed by a sheriff’s deed executed in conformity with the statute.

So far, then, as the previous sale in this case is concerned, we hold the payment, and voluntary acceptance by Kramer of the redemption money, had precisely the, same effect it would have had if the execution had been valid. The effect in either case would be to relieve the land of the incumbrance, the consequences of the previous sale, and to extinguish all rights under it, including the certificate of purchase. But this alone, as we have just seen, was not sufficient to make appellant’s title good under her purchase. It simply placed her in the same position with respect to the land as if it had not been previously sold. It removed every impedíment out of the way of her execution, thereby enabling her to proceed with her execution in the same manner as if no previous sale had ever occurred. But this was all. The reception of the redemption money by Kramer did not at all relieve her from the duty of seeing that she was proceeding under legal process. This must be looked to in all eases, whether there has been any redemption or not, otherwise there is no assurance of obtaining a good title. The maxim of caveat emptor applies as well in eases where there has been a redemption as where there has not.

To the suggestion of hardship, so far as it affects the present proceeding, we see nothing to distinguish the case in this respect from the common case of one purchasing land at an administrator’s sale, where, by reason of the non-observance of the statute regulating such sales, the purchaser acquires no title. Notwithstanding the purchase money in such case is applied to the payment of the ancestor’s debts, for which the heir would be liable to the extent of assets received by him, he is nevertheless, by the rules of the common law, as long held by this, and other courts of the highest respectability, permitted to recover the land without restoring the purchase money, or any part of it. These cases proceed upon the principle that the purchaser must know, at his peril, whether he gets a good title. The enforcement of the rule tends to secure an observance of the law regulating such sales, and thus preventing abuses. Suits of this character are proceedings in invitum, for the purpose of divesting the title to an estate of one citizen and conferring it upon another, and this, under our constitution, can only be done by a strict compliance with the requirements of law, and the purchaser in all such cases must know, at his peril, that the law is complied with. If this is not done, of course he fails to get a good title, however much he may have paid for the property. On the other hand, if the law is observed, he acquires a good title to the estate, although he may not have paid one-fourth its value.

To the suggestion that appellant ought, in some way, be subrogated to the rights of Kramer, which is not made very clear by the learned counsel, it is sufficient to say the doctrine of subrogation is a creature of equity, and consequently can have no application to an action at law like the present. This suit is brought for the sole purpose of determining the legal title to a tract of land, and the equities of the parties, whether real or supposed, can not be adjudged in it. If appellant has any equities which the law will enforce, which is a matter not before us now, they are not affected by this proceeding, and she must go into a court of chancery, where such matters are cognizable, for a court of law has no power or jurisdiction to pass upon them.

As to the further intimation that the payment of the redemption money to Kramer might be treated as a sale to appellant of his certificate of purchase, there are several answers, but one is sufficient. It is clear no such thing was intended by the parties, but the very contrary. The object in paying and receiving the money was, as we have abundantly shown, to extinguish Kramer’s title under the previous sale, so as to enable appellant to acquire title by a sale under her own execution, as the sheriff’s return, which is conclusive on appellant in a mere collateral proceeding like this, clearly shows; and to now turn round, in the face of the facts thus conclusively established, and hold the transaction amounted to a mere sale of the certificate of purchase, would be simply to make a contract for the parties which they never intended, and which, in all probability, was never thought of until after the fatal defect in appellant’s title was discovered,—would be to set at defiance all rules and principles which ordinarily govern courts in determining whether a contract does or does not exist under a given state of facts. This we are not prepared to do.

The effect we have given to the redemption in this case is in strict conformity with the rule laid down in the three cases in 78 111., above cited.

The judgment will be affirmed. judgment affirmed.


source: Caselaw Access Project

author: Per Curiam :

license: Public Domain

text:
    James Mix v. The People ex rel. John B. Shaw.

      Filed at Springfield May 9, 1883.

    1. Appearance—defence on the merits, as a waiver of defects in process or service. In personal actions, if the defendant appears and pleads to the merits, it is wholly immaterial whether the service of the summons was defective, or whether any summons at all was ever issued and served upon him. A party can not appear and object that the service on him is defective, and at the same time defend as to the merits of the suit. Defending on the merits is a waiver of all objection to the service, or even to the entire want of any service.

      2. The same rule applies to applications for judgment against delinquent property for taxes. If the owner appears and defends as to the merits, it makes no difference whether the notice given by the advertisement is defective or not, or whether there was any advertisement at all.
    3. Taxation—application for judgment—of the notice—waiver by defence to the merits. On application of a collector for judgment against lands and lots for taxes, etc., due thereon, the advertisement of the application stands in the place of a summons in personal actions as to the question of jurisdiction, and the land owner may enter his appearance the same as in personal actions. It is sufficient if he has either actual or constructive notice of the proceeding against his property. He can not object to the sufficiency of the notice, and at the same time question the liability of his property to the taxes claimed.
    4. Same—recording delinquent list—date of filing the list need not be stated. Section 188 of the Revenue act of 1872, which requires the collector to file with the county clerk the delinquent list five days before the commencement of the term at which application is to be made for judgment, and making it the duty of such clerk to record the same in a book kept for that purpose, does not require that the date of filing such delinquent list shall be set forth in such book. It is enough if it appears by the bill of exceptions that such list was filed in time.

      5. Same—amending delinquent list—time to object to defects or errors in the list. Under section 191 of the Revenue law, if the delinquent list shows the total amount of taxes due on some of the property to be more than is stated in the advertisement, or if the list is erroneous, it may be corrected, and if the party defending against judgment fails to point out such discrepancy, or any other omission capable of being obviated by amendment, he waives his objection thereto, and can not urge the same as error.
    6. Same—city taxes—ordinance levying the same need not be published. Under the general law for the incorporation of cities and villages, it is not necessary to publish the ordinances levying the city taxes, but only the ordinances making appropriations of money. The ordinance for the levy of the necessary taxes presupposes antecedent appropriations, and merely makes a levy to raise money to pay the appropriations already made. The total amount of appropriations legally made is required to be ascertained prior to the passage of the ordinance, and it takes effect from its passage, without publication or posting.
    7. Same—of the necessary proceedings by the city authorities to constitute the levy a valid one. Where a city incorporated under the general law proceeds to levy taxes upon the assessment for State and county purposes, it is necessary that the amounts levied and to be raised shall be certified to the county clerk, in order that the taxes for the city may be extended and collected in the manner provided for in the general revenue laws of the State. Where this is done, it shows conclusively the election of the city authorities to proceed in the assessment, extending and collection of these taxes in conformity with article 8 of the general Incorporation law of 1872, and section 122 of the Revenue act. Section 254, page 255, of the Revised Statutes of 1874, has no application to such taxes.
    8. Same—special taxation for sidewalks—may be levied and collected before the walk, is built. Where a city proceeds to construct a sidewalk under the “Act to provide additional means for the construction of sidewalks,” approved April 15, 1875, and in force July 1, 1875, by special taxation, instead of by assessments, the tax so levied can not be defeated merely because the sidewalk has not been built before the tax is sought to be collected.
    Appeal from the County Court of Ford county; the Hon. Hugh P. Beach, Judge, presiding.
    Mr. Stephen B. Moore, for the appellant :
    On the trial there was no certificate from the printer, publisher, or financial agent of the newspaper publishing the delinquent list, attached to the paper given in evidence, of the due publication of the list, as required by section 186, chapter 120, of the Eevised Statutes. Without this the court had no jurisdiction. Charles v. Waugh, 35 Ill. 315; McKee v. Supervisors, 53 id. 478; Fox v. Turtle, 55 id. 377.
    It is claimed appellant waived this by filing objections, and Hale v. People, 87 Ill. 72, and People v. Sherman, 83 id. 164, are cited. In those cases this specific objection was not made. The party, by appearing and objecting to the jurisdiction, does not thereby confer it.
    Judgment was rendered for taxes on lots and blocks included in the delinquent list, but omitted in the list as advertised.
    As to the sidewalk tax, the question was tried below by both parties on the theory that such tax was levied under section 134, et seq., of the general law of 1876. The tax is not legal under this act. Section 3 provides, that in ease of default of the owner to build the walk, and the village builds it, the cost of it may be recovered in an action of debt. There is nothing to show the owner was in default in building it. No demand was made on him.
    Mr. A. Sample, for the appellee:
    The objection to the advertisement was waived by a general appearance, and contesting the case on the merits. The appearance was not limited to the objections filed. Each objection in a tax case stands as a plea. The objections filed were signed by counsel, while pleas to the jurisdiction must be pleaded in person. 1 Chitty’s Pleading, 423; 1 Saunder’s Pleading and Practice, 4; Mineral Point R. R. Co. v. Keep, 22 Ill. 9.
    Appearance may be entered in a tax case, as well as in any other. The publication of notice takes the place of process. Fortman et al. v. Ruggles et al. 58 Ill. 207.
    There is nothing showing that judgment was entered against lots. or blocks of the defendant which were included in the delinquent list, but not advertised, and he can not make objection for other persons. (Chiniquy v. People, 78 Ill. 570; Buck v. People, 78 id. 560.) But if not advertised, the appearance cured such defect. Hale v. People, 87 Ill. 72; Doyle v. Douglass Machine Co. 73 id. 273.
    It is claimed the case was tried on the theory that the sidewalk was ordered under the act of 1872. This is not correct.
   Per Curiam :

This was a proceeding in the county court of Ford county, to obtain judgment against delinquent lands and town lots for taxes and special assessments alleged to be due thereon for the years mentioned in the application. James Mix, claiming to be the owner, appeared and filed written objections to judgment against certain lands and lots included in the application, but they were all overruled by the court, and from the judgment rendered he prosecuted this appeal.

The cause was first submitted for decision at the January term, 1879, and in vacation thereafter an opinion was filed reversing the judgment of the county court. ' Within the time limited by the rules of this court, and in conformity therewith, a petition was presented by the collector for a rehearing of the cause. That petition was considered and allowed at the January term, 1880, and the cause was again taken for decision.

One objection taken and confidently insisted upon was, the advertisement the law requires the collector to make for judgment against delinquent lands and town lots, and which he did make, was not proven as the statute requires it shall be, and for that reason it failed to give the court jurisdiction. On the first consideration of the case the newspaper advertisement was thought to be jurisdictional and indispensable, and on account of the insufficiency of the proof in respect to it the judgment was reversed. It is true the advertisement in such cases is jurisdictional, but it is in that sense a summons in a personal action is jurisdictional. In personal actions, if the defendant appears and pleads to the merits, it is wholly immaterial whether the service was defective, or whether any summons was ever issued and served upon him. The same rule has been applied in applications for judgment against delinquent property for taxes. Where the owner appears, and defence is made as to the merits of the taxes for which judgment is sought against his property, the rule is, it makes no difference whether the notice given by the advertisement was defective or not, or whether there was any advertisement at all. The People v. Sherman, 83 Ill. 165; Hale v. The People, 87 id. 72. A party may enter his appearance in a tax case as well as in a personal action against him. It is sufficient if the owner has either actual or constructive notice of the proceedings against his property. Fortman v. Ruggles, 58 Ill. 207.

It is not perceived it makes any difference the owner in this ease objected, as he insists he did, to the sufficiency of the proof as to the advertisement, for after that was done he defended on the merits as to the liability of his property for the. taxes assessed against it. That concluded him from further objecting to the sufficiency of the notice afforded by the advertisement. A party to a personal action can not object that the service upon him is defective, and at the same time defend as to the merits of the suit. Doing the latter operates as a waiver of all objection that could have been taken to the service, or; indeed, whether there was any service at all. As has been seen, the same practice prevails in tax cases, and there is certainly no good reason why it should not.

The same reasoning answers the objection insisted upon that judgment was rendered against property embraced in the delinquent list filed, but not included in the advertisement that was in fact made.

On the other questions made, the court adheres to the views expressed in its former opinion, delivered by Mr. Justice Baker, when he was a member of this court, and will simply restate them.

It appears from the bill of exceptions, the People offered in evidence the delinquent list, and certain specified objections were made thereto by contestant. It was stated as an objection, the list was not filed in due time. Section 188 of the Revenue act of 1872, provides: “The collector shall file with the county clerk the list of delinquent lands and lots, which shall be made out in numerical order, and contain all the information necessary to be recorded, at least five days before the commencement of the term at which application for judgment is to be made; and said clerk shall receive and record the same in a book to be kept for that purpose, which said book shall set forth the names of the owners, if known, the proper description of the land or lot, the year or years for which the tax or special assessment is due, the valuation upon which the tax is extended, the amount of each kind of tax or special assessments, the costs, and total amount charged against such land or lot. ” It will be noted the date of the filing of the delinquent list is not required to be set forth therein, and that date is not one of the matters required to be set forth in the record book kept by the clerk. This delinquent list contains all the information specifically enumerated in the statute. As there is no statute imposing upon the collector the duty of making in his delinquent list a recitation of the date of filing, the blank left by him in that respect is of small moment. If attention had been challenged thereto on the hearing, the blank could readily have been filled, under section 191 of the Revenue act, by the insertion of the proper date. The substantial matter is the fact as to whether the list was actually filed with the clerk at least five days before the commencement of the term. It does appear from the record the first day of the term was the 21st day of May, and it further appears, from the bill of exceptions preserved therein, by the admission of appellant himself, the delinquent list was filed on the 15th day of May. This we think amply sufficient.

The point is made, the total amount due, as shown by the advertisement, is, as to some of the property, less than the amount shown by the delinquent list, and that there is no law to add to the tax between the publication of the one and the filing of the other. If, as is urged, the delinquent list is erroneous, the necessary corrections could readily have been made, if pointed out, under said section 191, which provides that in all judicial proceedings, of any kind, for the collection of taxes and special assessments, all amendments may be made- which, by law, could be made in personal actions pending in said court. Appellant should have specifically pointed out the discrepancies in the county court when there was opportunity for amendment.

It is claimed the city tax levy of the city of Paxton is illegal. The city is organized under the general Incorporation law of 1872. All ordinances making appropriations of money are, by section 64 of that act, required to be published in a newspaper, or by posting. The ordinance making the city tax levy included in this case, was adopted August 7, 1876, and it is urged there is no sufficient proof in this record it was published. It is provided in section 111 of the act that the city council shall each year ascertain the total amount of appropriations, for all Corporate purposes, legally made, and to be collected from the tax levy of that fiscal year, and, by ordinance, levy and assess such amount so ascertained, upon the real and personal property within the city subject to taxation. We do not understand it to be necessary to publish the ordinance levying the taxes. Such ordinance presupposes antecedent appropriations, and merely makes a levy to raise money to pay appropriations already made. The total amount of appropriations legally made is required to be ascertained prior to its passage. We find in this very record an ordinance of July 7, 1876, duly published, making appropriations for certain specified purposes, and in certain specified amounts, amounting in the aggregate to the sum of $4155. The appropriations, then, were already made, and in strict compliance with the requirements of said section 64. The ordinance of August 7 only acted upon these appropriations, and provided for levying a tax to pay these amounts that had been appropriated. It was not an ordinance of the character claimed for it, and it was not necessary it should be published in order to give it validity. It took effect from and after its passage.

A certified copy of the ordinance was properly filed with the county clerk. It was necessary the amounts levied and to be raised by taxation should be certified to him, in order that the taxes for the city might be extended and collected in the manner provided in the general revenue laws of the State. The ordinance that levied the tax, assessed it upon the real and personal property of the city subject to taxation, “as the same is assessed for State and county purposes, ”— thus conclusively showing this election of the city authorities to proceed in the assessment, extending and collection of these taxes in conformity with article 8 of the general Incorporation law of 1872, and section 122 of the Revenue act. The section referred to by appellant,—section 254, p. 255, Eev. Stat. 1874,—has no application whatever to these city taxes.

Objection is made to the sidewalk tax assessed against a portion of appellant’s property. It is urged that the sidewalk was not built, and an assessment of special benefits made, in conformity with section 134, et seq., of the general law of 1872. It is very evident the sidewalk was not constructed under the provisions of that law, but in accordance with the provisions of “An act to provide additional means for the construction .of sidewalks in cities, towns and villages, ” approved April 15, 1875, and in force July 1, 1875, (Laws 1875, 63.) This latter legislative act, which is plainly the one sought to be followed in the matter of this sidewalk, is wholly ignored by appellant in his brief and argument. Under its provisions, sidewalks may be built by special taxation, instead of by assessments of special benefits. It is not perceived wherein the procedure adopted by the city of, Paxton substantially varied from the mode authorized by the several sections of this latter act. No such variance is pointed out, nor is any question made upon the validity of the act.

No material error appearing that substantially affects the justice of the taxes and assessments involved, the judgment must be affirmed.

Judgment affirtned.


author: Mr. Justice Walker

text:
    Darius H. Denton et al. v. Amos C. Jackson.

      Filed at Ottawa May 10, 1883.

    1. Statute of Frauds—promise to pay the debt of another. A promise to pay the debt of another, after the debt has been already incurred, is void, unless such promise is made in writing.
    2. Commission merchant—purchasing for future delivery—on margins—notice to the customer before sale. Where a commission merchant purchases pork and lard on the board of trade for a customer, for future delivery, the customer having advanced the required margin, and no agreement is made as to notice in case the commission merchant is compelled to secure himself against loss by a sale of the property, the transaction will be governed by the rules of the board of trade; and if its rules require notice, the merchant must give it before he can place his customer in default. If there is no contract in regard to such notice, or any rule of the board of trade, the common law requires a reasonable notice to the customer, and opportunity to make the margins good before a sale.
    3. Same—liability in case of a wrongful sale. If a purchaser through a commission merchant, on the board of trade, has sufficient margins in the hands of the latter, the commission merchant will have no right to sell the property without authority from the purchaser he represents; and if he does so sell, and loss results, he will be bound to make good the purchaser’s loss, and such purchaser may, in such case, recover of him the full amount deposited as margins.
    4. Instruction—mere obscurity not fatal. The mere obscurity of an instruction is no ground for a reversal. The instruction must mislead, or be calculated to mislead, to the injury of the party against whom it is given, to justify a reversal.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. Walker & Carter, for the appellants.
    Mr. Frederick A. Herring, for the appellee.
   Mr. Justice Walker

delivered the opinion of the Court:

This was an action by appellee to recover moneys placed in the hands of appellants as margins on the purchase of pork and lard on the board of trade in Chicago. Of the undisputed facts it appears appellee commenced dealing in these articles on the board of trade in the sjxring of 1881, and so continued, at intervals, until the 12th day of December of that year. To enable him to do so, he employed appellants, who were commission merchants in the city, he remitting the margins on each purchase, and as they became necessary as prices declined. He had thus made and closed a number of purchases. On the 12th of December, 1881, appellants held for appellee 2000 barrels of pork and 500 barrels of lard, for delivery the next month. Appellee claims he had in the hands of appellants $3275.69 as margins, and that the amount of pork and lard claimed to have been held for him by appellants required but $3000 as margins, according to their agreement. On that day appellants closed out, or claimed to have sold the purchases, at a loss of $1927.50. We have not been able to find any evidence of whom the property was purchased, or to whom it was sold, or whether the purchase and sale was merely a supposed or fictitious transaction on the part of appellants, or whether a mere entry of a memorandum in their books that appellee had purchased or sold the articles ordered, was, by them and others, treated and considered as purchases.

It is not disputed that in September, 1881, J. K. Plank, a farmer residing in the neighborhood of appellee,, made purchases, on his own account, through appellants, of grain and other articles on the board of trade, furnishing margins, and, as usual with country dealers on the board, he was sold out, on the 7th day of November, 1881, at a loss, as they claim, of §1227.50. Appellee and Plank made some purchases in September, 1881, but it seems to be admitted on all hands that these joint purchases were closed up by the 1st of October, 1881. It is conceded that appellants appropriated §1097.50 of money remitted by appellee, and credited it to Plank’s account, to cover his losses, and charged it up to appellee. He protested against this action on their part, but they claimed that they did it under authority from him, and this he denies. On the 12th of December, 1881, appellants telegraphed to put up more margins, but receiving no answer, they, in about three and one-half hours afterwards, sold the pork and lard, as they claim, at a loss of §1927.50, on the claim that appellee’s margins were within §100.69 of being exhausted. He, on the contrary, claims when they sold he had as margins in their hands §3275.69, and upwards of §200 more than was required under their agreement, and he claims the sale was unauthorized, and being so, they should bear the loss. They also claim that he authorized them to sell, but this he denies. On the trial the jury found a verdict in favor of plaintiff for §3175, having deducted the sum of §100.69 appellants had paid into court. After overruling a motion for a new trial, the court rendered a judgment on the verdict. Defendants thereupon appealed to the Appellate Court for the First District, where the judgment was affirmed, and they appeal to this court.

On the question of the authority to sell at the discretion of appellants, and to appropriate funds remitted by appellee to cover losses by Plank, the evidence is conflicting; but the jury found in favor of appellee, and the Appellate Court having affirmed the judgment, they found the facts as did the jury, and we must accept these findings as conclusive, and are prohibited from considering the weight of the evidence. We can, therefore, only consider questions of law presented by the record. Exceptions are taken to the instructions given for appellee, and it is insisted that they are erroneous, and must have misled the jury in their finding.

It is first claimed that there is no evidence upon which to base appellee’s second, fifth and sixth instructions. There was evidence that the remittances by appellee were credited to him, and afterwards a portion of the amount was transferred to Plank’s credit. The evidence is conflicting as to whether they were authorized to make the transfer. There was evidence tending to prove appellee authorized appellants to make the transfer, and this evidence was contradicted. It was therefore proper for the court to instruct the jury as to the Statute of Frauds, If there was a promise by appellee to pay the debt of Plank after it was incurred, then it was not error to instruct the jury that such a promise would be void unless it was in writing, and signed as required by the statute. There was evidence tending to prove such a promise, but not in writing.

It is insisted that the trial court misdirected the jury as to notice that appellants would sell the pork and lard unless margins were made good. The instruction complained of is this:

“And if the pork and lard were sold by the order or consent of the plaintiff on December 12, 1881, then no recovery can be had; or if the plaintiff’s margins became exhausted, and he was notified to produce the necessary margins, and failed to do so within a reasonable time, according to the customs and usages of the board of trade, if any custom or usage existed in regard to the same, then such sale was justifiable; but if the jury believe, from the evidence, that such sales were made without any notice to the plaintiff, and if a notice was required by the customs and usages of the board of trade, and without his assent, or that his margins had not become exhausted, the plaintiff has a right, in law, to repudiate the trades thus made, and recover from the defendants such sums of money as he had on deposit with the defendants, irrespective of the loss or profit which may have resulted from the purchase of the aforesaid articles. The jury are instructed, as a matter of law, that in the absence of any express contract, or any custom or usage in relation thereto, Between a commission merchant doing business upon the board of trade in the city of Chicago and his customer, the commission merchant has no right to sell or close out the contracts made for the customer before the maturity of the contracts, unless the customer so directs, or unless the customer fails to keep his margins good. Upon his neglect or .refusal to do so, and if the commission merchant does so sell out or close out such contracts, the customer, under such circumstances as above, can recover back of the commission merchant the money deposited as margins, and the loss, if any, occasioned by the closing out of such contracts, must be borne by the commission merchant. ”

We perceive no objection to this instruction. It announces a correct principle of law. If the parties made no agreement as to notice in case the commission merchant was compelled to secure himself against loss by a sale of the property, then the transaction was to be governed by the rules of the board of trade; and if its rules required notice, appellants were bound to give it before they could place appellee in default. (Corbett v. Underwood, 83 Ill. 324; Mœller v. McLagan, 60 id. 317.) If there was no contract in regard to such notice, nor any rule of the board of trade, then the common law would require reasonable notice and opportunity to make his margins good; or if his margins were good, appellants had no right to sell the pork and lard. If they sold wrongfully, and without authority from appellee, and loss resulted, appellants, under every-prineiple of law and justice, would be liable to make good appellee’s loss occasioned by their wrongful act. The custom of the board of trade was in evidence before the jury, and we find no evidence of a special agreement between the parties, and the instruction was proper to enable the jury to intelligently apply the law to the facts as they might find them.

It is insisted that the third and fourth instructions for appellee are obscure, and they could not have been understood by the jury. If this were true, their mere obscurity alone would be no ground for a reversal. Such instructions must mislead, or be calculated to mislead, to the injury of the party against whom they are given, before we are called on to reverse. After a careful examination we are unable to see that these instructions could have produced that effect: Taking all the instructions together, we are of opinion that they presented the law of the case fairly to the jury.

Perceiving no error in the record, the judgment of the Appellate Court must be affirmed.

Judgment affirmed.


author: Mr. Justice Sheldon

text:
    E. C. Reichwald et al. v. The Commercial Hotel Company et al.

      Filed at Ottawa May 10, 1883.

    1. Corporation—ratification of acts of its officers—what so regarded. Notes given by the president of a corporation formed under the laws of the State of Iowa, and mortgages given to secure the same, executed by the president and the secretary, under the corporate seal, which notes were entered upon the company’s book of bills payable, and in its statement of liabilities posted yearly in Iowa, as required by law, though made without authority from the board of directors, are valid obligations when the directors after-wards authorize and approve a sale of property in satisfaction of the same. This action of the directors amounts to an adoption and ratification of the acts of the officers.
    2. Same—powers of directors—construction given to the action of the stockholders. Where, by the articles of an Iowa corporation, it was provided that the company should have “the right to purchase, sell, mortgage, control and lease hotel property, either real or personal, or both, and to exercise all such other incidental powers as shall be necessary in conducting said business” of keeping hotels, and also provided that the stockholders, at any annual meeting, might adopt such by-laws for the government of the board of directors, etc., as they might deem necessary, and the stockholders, at their first meeting, passed a resolution that they deemed it not necessary to adopt bylaws, for the reason that the articles of incorporation provided that the control and management of the corporation should be in the hands of the board of directors, which, at the next annual meeting, was re-adopted: Meld, that such resolution amounted to an expression of the stockholders to leave the entire control and management of the corporate business with the directory, the same as the stockholders themselves might do.
    3. SAME'—right to assume liabilities incurred before organization. Corporations may, by express agreement, assume obligations entered into by its promoters prior to its organization, with a view thereto, where the corporation receives the benefit of that in respect of which such obligations were incurred.
    4. Same—consideration for its obligation given to discharge a prior incumbrance on property received on subscription to stock. A hotel company was organized with a capital stock of $160,000, which was all subscribed by one of the corporators, except three shares, of $100, none of which was ever paid. At the time of the organization of the corporation the principal stockholder, who was elected president, was the owner of a large amount of hotel furniture, subject to a chattel mortgage of $115,000, which he turned over to the company in payment of hie subscription, in pursuance of an arrangement made prior to the organization, and the company, in pursuance of the same arrangement, gave its notes, secured by chattel mortgage on the same property, to release it from the prior incumbrances, and such property constituted the sole assets of the company. It was held, that so far as the hotel company was concerned it received a full consideration for the notes and mortgage so given, and that they were valid obligations.
    5. Same—powers of corporations organized under the laws of Iowa. A corporation formed under the laws of Iowa has the power to make contracts and acquire and transfer property, the same as a natural person, and unless prohibited may borrow money, execute a mortgage on the corporate property, and contract in respect thereto, the same as an individual may do.
    6. Same—powers-outside the place of its creation. A corporation can not perform acts outside of the State under which it is created, which are strictly corporate acts, but may perform other acts not corporate acts in the 'strict sense of those words.
    7. Same—what are “corporate acts,” as distinguished from acts of agents. The courts differ as to what are corporate acts and what are acts merely of agents, some holding that the directors are only agents, and others holding their acts to be corporate acts. The acts of an Iowa corporation in acquiring property in this State, and in giving notes and mortgages for that purpose, and in selling all its corporate property in this State to discharge and satisfy such notes and mortgages, are not corporate acts, but such as may be done by the directors in the exercise of their powers as agents of the corporation, and are such as may be well performed in this State.
    8. Same—right of corporation to turn out property to pay debts—and to prefer creditors. A corporation, like a private individual, independent of any positive law to the contrary, may turn out a part or the whole of its property in payment of its debts, and in doing so may prefer creditors, if done in good faith and not for a fraudulent purpose.
    9. Same—disposal of entire property—will not work a dissolution. The disposal of all the property of a corporation will not operate to end or dissolve the corporation.
    10. Same—securing debt to stockholder in exclusion of others not fraudulent. The fact that one is a stockholder in a corporation does not debar him from obtaining security for debts due to himself from the corporation, to the exclusion of other creditors.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.

      In the month of April, 1876, the Commercial Hotel Company was organized as a corporation, under the laws of the State of Iowa, to transact the business of keeping hotels at any places or place in the States of Iowa and Illinois, or either of them, with a capital stock of $160,000, divided into 1600 shares, of $100 each. Pulling subscribed for 1597 shares, Cronkhite for one share, Plainer for one, and White for one. The officers of the corporation were, Pulling, president, Cronkhite, vice-president, and Plainer, secretary and treasurer. For some time previous, Pulling had been carrying on the Commercial Hotel, in Chicago, for the furniture and fixtures of which Ingraham had made advances of money to the amount of about $115,000, for which, and to secure which, Pulling had given his notes to Ingraham, and a chattel mortgage upon said hotel property, the mortgage not being recorded. Cronkhite made a purchase of one Hale of a build.ingjn Chicago, for certain property and $20,000, which building, by direction of Cronkhite, Hale conveyed to Ingraham, and on March 15, 1876, a written agreement was entered into between Cronkhite and Pulling of the one part, and Ingraham of the other part, whereby it was agreed that the Hale building conveyed to Ingraham should be held by the latter as security for the sum of $100,000, and as further security therefor there was to be given $20,000 of the stock of the Commercial Hotel Company, when it should thereafter issue. This arranged for $100,000 of the indebtedness of Pulling to Ingraham on account of the hotel property. Upon the organization of the Commercial Hotel Company, Pulling transferred to the corporation the said furniture and fixtures of the Commercial Hotel, in Chicago, which he had previously been keeping, in full payment of his subscription for 1597 shares of stock,—$159,700. Cronkhite’s subscription of one share, Platner’s of one share, and White’s of one share, were all paid for in services to be rendered. For the $20,000, part purchase money for the Hale building, due from Cronkhite to Hale, the company, after its organization, and on May 12, 1876, gave its notes to Hale, and a chattel mortgage to secure their payment on said hotel furniture and fixtures. It also gave its notes to Ingraham for $14,780.56, to cover the balance over $100,000 of the indebtedness to him of Pulling for the hotel property. The Hale chattel mortgage was subsequently sold and assigned to Lyon, and sundry payments, mostly from advances made by Ingraham, were made from time to time upon the mortgage.
    On May 11, 1878, the hotel company executed new notes for $25,000, in renewal of the Hale chattel mortgage assigned to Lyon, and interest, and for advances made by Ingraham, and secured the same by a new chattel mortgage on the hotel property, and took up the old paper and mortgage,— $15,000 of the new paper belonged to Lyon, and $10,000 to Ingraham. In September, 1878, the unsecured indebtedness of the hotel company to Ingraham, including the original notes of $14,780.56 aforementioned, was over $22,000, and, including the chattel mortgage indebtedness, the liabilities of the company to Ingraham and Lyon amounted to about $47,000. In the fall of 1878 possession was taken under the Lyon chattel mortgage, and a custodian placed in the hotel. Subsequently, and with the unanimous consent and approval of the board of directors, a settlement was made with Ingraham, and a bill of sale was executed to him of all the hotel property subject to the chattel mortgage, which he assumed and agreed to pay. At the time of this sale the hotel company was indebted to some thirty different persons for supplies and labor, aggregating the sum of $10,860.05. These claims were afterwards assigned to Beichwald and others, as trustees, and the hotel company executed to them its judgment note for that amount, upon which judgment was subsequently entered, and after return of an execution thereon unsatisfied, the bill in this case was filed by Beichwalc^ and others in the Superior Court of Cook county, for the purpose of having said sale decreed void as to them, and that Ingraham be required to account for all moneys that had come into his hands from the use of the hotel property. Upon final hearing, the Superior Court dismissed the bill. On appeal to the Appellate Court for the First District the decree was affirmed, and the complainants then appealed to this court.
    Messrs. G. W. & J. T. Kretzinger, and Mr. Fred L. Brooks, for the appellants:
    The power, and the exercise of the power, to acquire and sell or mortgage property, were 'expressly conferred upon the corporation, and could only be exercised by action and authority of its stockholders. Laws of Iowa, paragraph 6, sec. 1059; Rawlins v. Clay, 33 Maine, 139; Railway Co. v. Allerton, 18 Wall. 233.
    The power to sell or mortgage property is a corporate power, and its exercise, whether by the stockholders or directors, is a corporate act, and can be performed only in the State of its creation, although an agent, when authorized, may sell or mortgage property out of the State.
    Even if the power to sell had been conferred upon the board by express language, it could not sell the entire property, and thus destroy the corporation, without the assent of the stockholders. Gashwilder v. Willis, 33 Cal. 11; Conro v. Port Henry Iron Co. 12 Barb. 27; State v. Ancker, 2 Rich. 245; Abbott v. American Hard Rubber Co. 33 Barb. 591; Angell & Ames on Corp. secs. 499, 500; Kean v. Johnson, 1 Stockt. 401; Bagshaw v. Easton Ry. Co. 7 Hare, 114; Bank of Commerce v. Bank of Brest, Harr. (Mich.) 101.
    Said mortgages and notes executed to Hale, Lyon and Ingraham by the officers, without authority from the stockholders or board of directors, were absolutely null and void. U. N. F. Ins. Co. v. Keyser, 32 N. H. 315; Angell & Ames on Corp. 242, 245, 258, 259; Augusta Bank v. Hamlin et al.
      17 Mass. 180; Gibson v. Goldthwaite, 7 Ala. 293; McCullough v. Mars, 5 Denio, 575; Livingston v. Lynch, 4 Johns. Ch. 596.
    The assumption of the debts by the hotel company, through its directors or officers, was without consideration, and wholly void. Bedford, R. R. Co. v. Bowser, 48 Pa. St. 29; Conro v. Port Henry Iron Co. 12 Barb. 27.
    The payment of this debt with the property of the company was a breach of trust, in which Ingraham participated, which invalidates the sale. Conro v. Port Henry Iron Co. 12 Barb. 27; Barney v. Griffin, 2 Cow. 365; Green v. Winter, 1 Johns. Ch. 27; Brown v. Rickets, 4 id. 303; Salem Bank v. Gloucester Bank, 17 Mass. 29; Rahm v. Bridge Manufactory, 16 Kan. 284; State v. Commercial Bank of Manchester, 5 S. & M. 237; N. Y. and N. H. Ry. Co. v. Ketchum, 27 Conn. 107.
    Directors have no implied power to use the property of the corporation for any purpose not named in the charter. They have no implied power to commit a fraud. Cases supra, and Broadhead v. City of Milwaukee, 19 Wis. 658; Brown v. Johnson, 24 Me. 490; Monument National Bank v. Globe Works, 101 Mass. 107.
    The assumption of promoters’ debts by a corporation is void, and can not be enforced unless the corporation receives the benefit thereof, or a consideration therefor, and without receiving such benefit or consideration a promise to pay is void. Rockford, Rock Island and St. Louis R. R. Co. v. Sage, 65 Ill. 329; N. Y. and N. H. Ry. Co. v. Ketchum, 27 Conn. 170; Franklin Fire Ins. Co. v. Hart, 31 Md. 59; Safety Life Deposit Ins. Co. v. Smith, 65 Ill. 309.
    The pretended sale to Ingraham of the hotel property was a gross violation of a trust, and is absolutely null and void. Upton, Assignee, v. Burnham, 3 Biss. 431; State v. Ferris, 42 Conn. 560; New Albany R. R. Co. v. McCormick, 10 Ind. 499.

      Irrespective of Ingraham’s relation as stockholder, it was a violation of trust on the part of the directors to pay their debts with the company’s property. Railroad Co. v. Howard, 7 Wall. 409; Mumma v. Potomac Co. 8 Pet. 286; Wood v. Drummer, 3 Mason, 308; Voss v. Grant, 15 Mass. 522; Spear v. Grant, 16 id. 14; Curran v. Arkansas, 15 How. 387; Goodwin v. C. and W. C. C. et al. 18 Ohio St. 182.
    Messrs. Tenney, Flower & Cratty, for the appellees:
    The powers of this corporation are to be determined by the laws of Iowa, where it was organized, and its articles of association. Under the laws of that State its powers are as broad as those of an individual, except when prohibited. Rev. Stat. Iowa, 1880, sec. 1059, sub. 6; Thompson v. Lambert, 44 Iowa, 239; Merrick v. B. and W. Plank Road Co. 11 id. 74; Baker v. Johnson Co. 33 id. 151.
    Directors may meet outside of the State where corporation is organized. Bellows v. Todd, 39 Iowa, 209.
    A corporation may make itself liable for the acts and contracts of its promoters, when it receives the benefits arising therefrom. Brice’s Ultra Vires, (2d ed.) 675; Low v. Railroad Co. 46 N. H. 284; Rockford, Rock Island and St. Louis R. R. Co. v. Sage, 65 Ill. 332; W., S. and M. Co. v. Cousley, 72 id. 531; Wood v. Whelen, 93 id. 153.
    A corporation which has had the benefit of an executed contract, can not claim that it was unauthorized. Peoria and Springfield R. R. Co. v. Thompson, 103 Ill. 187.
    Commercial, and apparently all private, corporations, may voluntarily alienate the whole of their tangible assets. Brice’s Ultra Vires, 130, 131; Wilson v. Miers, 10 C. B. (N. S.) 348. And this does not have the effect to end or dissolve the corporation,—it still remains a living and existing corporation. Town v. Bank of River Raisin, 2 Doug. (Mich.) 530; Revere v. Boston Copper Co. 15 Pick. 351; Boston Glass Co. v. Langdon, 24 id. 49; State v. Bank of Maryland, 1 Gill & J. 205;
      Catlin v. Eagle Bank, 6 Conn. 233; Sargent v. Webster, 13 Metc. 497.
    So long as a corporation retains control over its property, it may handle and dispose of it as an individual may do. It may make an assignment for the benefit of creditors, and may give a preference. Nor is a director or other official a trustee for the corporate creditors, or otherwise incapacitated from securing himself, if á creditor, to their disadvantage. Cowles v. Ricketts, 1 Iowa, 582; Buell v. Buckingham & Co. 16 id. 291; Town v. Bank of River Raisin, 2 Doug. (Mich.) 530 ; State v. Bank of Maryland, 6 Gill & J. 205 ; Catlin v. Eagle Bank, 6 Conn. 233; Green’s Brice’s Ultra Vires, p. 484, note b.; Graham v. Railroad Co. 102 U. S. 148.
   Mr. Justice Sheldon

delivered the opinion of the Court:

It is urged by appellants that the notes and mortgages executed to Hale, Lyon and Ingraham by the officers of' the hotel company, were so executed without authority from the stockholders or board of directors, and were, therefore, void. It is sufficient to say in this respect, that the notes were executed by Pulling, as president of the company; that the mortgages were executed by him as president, and Plainer as secretary, under the corporate seal of the company; that the notes were entered and appeared upon the bills payable book of the company, and in its statement of liabilities posted yearly in its Iowa office, as required by law; and that the resolution of the board of directors of October 8, 1878, authorizing and approving the sale of the listed property to Ingraham in satisfaction of the Lyon mortgage and the notes to Ingraham, assumes and recognizes such mortgage and notes as valid existing liabilities of the corporation. There was full adoption and ratification by the company of the notes and mortgages.

As against the validity of the bill of sale of the hotel property to Ingraham, executed on October 8, 1878, by Pulling, as president, and Plainer, as secretary, under the corporate seal of the company, in pursuance of the resolution of the board of directors expressly authorizing the sale, it is insisted that such a sale of the entire assets of the corporation, without the authority of the stockholders in meeting convened, was wholly void; that the authority which was conferred upon the board of directors by article 5 of the articles of incorporation, providing that “the business of this company shall be under the control and management of a board of directors, ” etc., extended only to the management of the ordinary business of the company involved in the keeping of hotels, and not to the making sale of the entire property of the company; that the making of such a sale was the exercise of a corporate power, which remained with the corporation, to be exercised by it through its stockholders. By the articles of incorporation it is expressly provided that the company shall have “the right to purchase, sell, mortgage, control and lease hotel property, either real or personal, or both, and to exercise all such other incidental powers as shall be necessary and proper in conducting said business ” of keeping hotels. The 7th article provides: “At the annual meeting of the stockholders on the second Wednesday in April, 1877, or at any subsequent annual meeting, they may adopt such by-laws and rules and regulations applicable to this company, and for the government of the board of directors in the control and management thereof, as shall be deemed necessary, and not inconsistent with these articles, ” etc. No by-laws were ever adopted, but at the annual meeting of stockholders on the second Wednesday of April, 1877, the following resolution was passed: “Resolved, that it is not deemed necessary at this meeting to adopt by-laws, for the reason that the articles of incorporation provide that the control and management of the corporation shall be in the hands of the board of directors.” And at the annual meeting of stockholders in April, 1878, the same resolution was re-aclopted. We think it but the proper construction of this resolution to consider it as manifesting the intention, and amounting to an expression of the sense, of the stockholders, that the entire control and management of the corporate business should be entrusted to the board of directors; that they should have the right to purchase, mortgage .or sell the hotel property, in their discretion, and have full power and authority to do anything in that respect that the stockholders themselves or the corporation could do.

Question is made by appellants’ counsel of the validity of the notes given by the hotel company to Hale and to Ingraham, on account of Pulling’s preexisting indebtedness to Ingraham before the formation of the corporation, in the respect of there being no consideration of benefit to the company for such notes. It is well enough settled that corporations may, by express agreement, assume obligations entered into by the promoters of the corporation prior to its organization, with a view thereto, where the corporation derives the benefit of that in respect of which such obligations were incurred. Wood v. Whelen, 93 Ill. 153; Railroad Co. v. Sage, 65 id. 332. And see Low v. Railroad Co. 46 N. H. 284.

But it is denied that the liabilities on account of which the notes in question were given were incurred by Pulling and Cronkhite as promoters, or that the hotel company received the benefit of that for which the liabilities were incurred. The idea would seem to be, that as full paid stock was issued to Pulling for the hotel furniture he put in, this was payment by the company of full consideration for the furniture,' and that the superadded agreement to pay the personal debts of Pulling and Cronkhite was gratuitous, and without any consideration received by the hotel company. It is true the liability of Pulling to Ingraham was not strictly incurred as promoter of the corporation, or in view of its organization, but that of Cronkhite to Hale clearly was thus incurred. Pulling and Cronkhite, who were the only promoters of the enterprise, devised the scheme to organize the “Commercial Hotel Company” under the Iowa corporation law, and to bring into that corporation, as capital stock, the hotel furniture and fixtures of the Commercial Hotel, in Chicago, which Pulling was carrying on, and issue full paid stock therefor. To that end, in order to get control of the furniture and fixtures, divested of the lien which Ingraham had thereon, it was necessary to make some satisfactory arrangement with Ingraham. This was done through Cronkhite making a trade with Hale for the Hale building, Cronkhite giving therefor other property he owned and $20,000, and Ingraham being willing to take the notes of Pulling and Cronkhite for $100,000 of Pulling’s indebtedness to him, secured by a conveyance to him of the Hale building and $20,000 of hotel company stock when it should thereafter issue, and for the remaining $14,-780.56 due to him from Pulling, Ingraham was to have the hotel company notes. Soon after the organization of the corporation the company’s notes were given to Hale for the $20,000, the balance of the purchase money coming^ from Cronkhite for'the Hale building, and a chattel mortgage to secure the payment of the same, and the company’s notes were given to Ingraham for the remaining $14,780.56 due him from Pulling. Pulling and Cronkhite were two of the three directors, and as appears from the books of the corporation, shortly after the organization, they were substantially the only stockholders.

We must believe, from the circumstances, that these notes and chattel mortgage of the company were given in pursuance of an arrangement, made prior to the organization, that they should be thus given. Not a dollar in money was subscribed for or paid in by any one. All the debts thus assumed by the company for which they gave their notes and chattel mortgage, as above named, were really for the property, which constituted the sole assets of the corporation, and which property, we may well suppose, could not have otherwise been obtained. We can have no doubt that such notes and chattel mortgage were given for full consideration received by the hotel company, and so far as respects sufficiency of consideration, were valid and binding obligations upon the company. They were, then, the company’s own debts, and not the mere personal debts of Pulling and Cronkhite, as is so strenuously urged. As to the remainder of the amount of the indebtedness from the hotel company to Ingraham, which was settled for and satisfied by the bill of sale to Ingraham, there is no question as to its being the company’s own indebtedness, being for moneys advanced by Ingraham directly to the corporation after its organization. Among the powers of a corporation organized under the laws of Iowa, conferred by the laws of that State, is “the right to make contracts, acquire and transfer property, possessing'the same powers in such respects as private individuals.” (Code of Iowa, 1880, sec. 1059, sub. 6.) That, unless prohibited, it may borrow money and execute a mortgage on the corporate property, and may make a contract the same as an individual can do, see Thompson v. Lambert, 44 Iowa, 239; Buell v. Buckingham & Co. 16 id. 291.

Objection is taken to the action of the directors in the premises as being outside of the State of Iowa, and in the State of Illinois, it.being claimed that what they did were corporate acts, and that corporate acts can not be performed outside the territory of the jurisdiction under which the corporation was created. This is true as to corporate acts, strictly so called. And courts differ as to what are corporate acts, and what are acts merely of agents, some holding that the directors are only agents', and others holding their acts as directors to be corporate acts. (Green’s Brice’s Ultra Vires, 442-3, note a.) All the acts in question of the directors we look upon as being not corporate acts, but acts done by the directors in the exercise of their power as agents of the corporation, and such as might well be performed within this State, although the corporation was created in the State of- Iowa. There is abundant authority in favor of such view. Bellows v. Todd, 39 Iowa, 209; Galveston Railroad v. Cowdrey, 11 Wall. 476; Arms v. Conant, 36 Vt. 745; Miller v. Ewer, 27 Me. 517; Ohio and Mississippi R. R. v. McPherson, 35 Mo. 13. Although it may be otherwise as to corporate acts, it is not to be questioned that a corporation, by its agents, may make contracts and transact business in another State than that of its creation,—and the expressed object of this corporation, by its articles of incorporation, was the management, control and keeping hotels in the State of Illinois, as well as in the State of Iowa.

We do not concur in appellants’ view that the debts in question were the mere private debts of Pulling, and that the transfer to Ingraham was a misappropriation of the company’s property to the payment of Pulling’s individual indebtedness. We find it to be the indebtedness of the company, and that the transfer of the property was but the payment of the company’s bona fide indebtedness. An individual may turn out part or the whole of his property in payment of his debts, and in so doing may prefer creditors. We do not see why this corporation might not do the same, and that through the action of its board of directors. We find nothing to impeach the good faith of the transaction. Kent lays it down: “Independent of positive law, all corporations have the absolute jus disponendi of lands and chattels, neither limited as to objects nor circumscribed as to quantity.” (2 Kent’s Com. 281.) In addition, here, the law of the State where the corporation was created conferred upon it the right to make contracts, acquire and transfer property, with the same powers in such respects as private individuals.

But it is claimed that the board of directors had not the power to dispose of all its property, and thus destroy the corporation. The effeet'of this transfer of all the hotel property no doubt was to terminate the business of the corporation; but that was not the necessary effect. It is entirely clear, upon the authorities, that the disposal of all the property of a corporation has not the effect to end or dissolve the corporation. Buell v. Buckingham & Co. 16 Iowa, 284; Town v. Bank of River Raisin, 2 Doug. (Mich.) 530; State v. Bank of Maryland, 6 Gill & J. 205; Catlin v. Eagle Bank, 6 Conn. 233.

The circumstance of Ingraham being a stockholder in the corporation, as he appears to have been, did not debar him from obtaining security for debts due to himself, to the exclusion of other creditors. Buell v. Buckingham & Co. supra; Whitewell v. Warner, 20 Vt. 425; Railroad Company v. Clayborn, 1 Speer’s Eq. 562; Sargent v. Webster, 13 Metc. 497. We are not satisfied, from the evidence as to its value, that the property transferred to Ingraham was any more than sufficient to satisfy the mortgage on which it had been taken,—that at. a public sale it would have brought more than the amount of the mortgage debt. If that be the case, then Ingraham really obtained no preference over other creditors in respect of his unsecured indebtedness. He but obtained satisfaction of the mortgage which he held.

We think the decree dismissing the bill was right, and it is affirmed.

Decree affirmed.


author: Mr. Justice Craig

text:
    Rodney McDole v. S. P. McDole.

      Filed at Ottawa May 10, 1883.

      1. Action—splitting of entire cause of action-^bar to second suit. A party can not split an entire cause of action, and bring two or more suits to recover different portions of the same debt. If he sues for and recovers a part of an entire demand or debt, the judgment is a bar to a second suit for the balance.

      2. Same—when two or more actions may be brought on same contract, as for separate demands. Where a lease provides for the payment of a given sum annually, separate actions may be brought upon the lease for each year’s rent, and if, when suit is brought for one year’s rent, the rent on the following year is then due, a judgment for the first is no bar to a second action for the rent of the subsequent year.
    3. The statute requiring parties in suits before justices of the peace to consolidate all their respective demands, or be barred from a further action, and the decisions thereon, have no bearing or application to suits brought in courts of record.
    4. Pleading—assigning further breaches in suit on penal bond. In an action on a penal bond conditioned for the payment of a specified sum annually, as rent of premises, where the only breach assigned is the failure to pay the rent of the year ending in 1880, the plaintiff may afterward assign as a further breach the non-payment of the rent of the year ending in 1881, although the suit was brought after the rent of both years was due.
    5. Any breach of the condition of a penal bond for which damages have not already been assessed, forms the proper subject matter of a new assignment. And the statute applies to other bonds for the performance of covenants besides official bonds.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the County Court of Kane county; the Hon. J. W. Ranstead, Judge, presiding.
    Mr. A. J. Hopkins, and Mr. N. J. Aldrich, for the appellant :
    Under the contract each year’s rent constitutes a separate and distinct cause of action. The $600 in question is not an installment of money due, hut is the full contract price for the rent of the farm for one year. The bond is not entire and indivisible, but embraces separate contracts, upon which separate suits may be brought. Badger v. Titcomb, 15 Pick. 409; Perry v. Herrington, 2 Metc. 368; Sparhawk et ux. v. Willis, 6 Gray, 163; Andover Savings Bank v. Adams, 1 Allen, 128; Dulaney v. Payne et al. 101 Ill. 331; Wehrly v. Morfoot, 103 id. 185; Phillips v. Banks, 16 Johns. 136.
    Under the statute the plaintiff may recover in this proceeding by making a further assignment of a breach of the conditions of the bond, without bringing a new suit. Rev. Stat. chap. 110, sec. 21; People v. Compher et al. 14 Ill. 447.
    This remedy applies to penal bonds as well as to official bonds. Dent v. Davison, 52 Ill. 110.
    Mr. Eugene Canfield, and Mr. R. P. Goodwin, for the appellee :
    A plaintiff will not be allowed to split up an entire cause of action, so as to bring two or more suits for different portions of the same debt. Gray et al. v. Gillilan, 15 Ill. 459; Dalton et al. v. Bentley, 15 id. 420; Hamilton v. Quimby, 46 id. 90; Rosenmuller et al. v. Lampe, 89 id. 213; Matthias v. Cook, 31 id. 83; Camp v. Morgan, 21 id. 255; Duchess of Kingston’s case, 2 Smith’s L. C. 669, and cases cited; Stockton v. Ford, 18 How. 418; Dulaney v. Payne, 101 Ill. 325; Phillips v. Besick, 16 Johns. 136; Girling v. Alden, 1 Lev. 464; Nickerson v. Rockwell, 90 Ill. 461; Warner v. Coming, 6 Cush. 104; Freeman on Judgments, (3d ed.) secs. 238, 240; Smith v. Jones, 15 Johns. 229; Bendernagle et al. v. Cocks, 19 Wend. 209; Lord Bagot v. William, 3 B. & C. 235; Casselberry v. Forguer, 27 Ill. 170; Lucas v. LeCompte, 42 id. 303.
    In this -case the contract is entire, and there is but one agreement to pay rent.
    Has section 21 of our Practice act changed the common law rule? The statute provides that the judgment for the penalty shall stand as security for such other breaches as may afterwards happen. Dent v. Davison, 52 Ill. 109.
    The case of People v. Compher, 14 Ill. 447, is not analogous to this. The bond there stood as security for several different persons, and the writ of inquiry -was sued out by a different party.
    A reference to the English authorities will show that those courts have always held that the damages to be recovered upon writ of inquiry issued under their statute must be for future breaches, and such as have happened subsequent to the beginning of the suit in which the original judgment was obtained. Collins v. Collins, 2 Burr. 821; Gainford v. Griffith, 1 Saund. 58, note 1; 2 Tidds’ Prac. 1008-13; White v. Sealy, Doug. 49; Duchess of Kingston’s case, 2 Smith’s L. C. 674.
   Mr. Justice Craig

delivered the opinion of the Court:

On the 13th day of August, 1881, Rodney McDole brought an action of debt against S. P. McDole, in the county court of Kane county, the summons returnable at the September term of the court. The action was brought to recover one year’s rent, to-wit, rent from the 22d day of April, 1879, to the 22d day of April, 1880, on a certain bond, in the words and figures following:

“Know all men by these presents, that I, S. P. McDole, of Sugar Grove, Kane county, 111., am held and firmly bound unto Rodney McDole, in the penal sum of $5000, for the payment of which, well and truly to be made, I bind myself, my heirs, executors and administrators, jointly, severally and firmly by these presents.
“Witness my hand and seal this 22d day of April, A. D. 1875.
“The condition of the above obligation is such, that whereas the above bounden S. P. McDole has rented of said Rodney McDole all of the farms now occupied by him, said S. P. McDole, and owned by said Rodney McDole, for and during the term of the life of said Rodney McDole, and one year thereafter, to Abigail McDole, if she survives him, for the sum of $600 per year, to be paid annually. Now, therefore, if the said S. P. McDole shall pay unto said Rodney McDole the sum of $600 on or before the 22d .day of April each and every year of his, said Rodney McDole’s, natural life, and one year thereafter, to Abigail McDole, then this obligation is to be null and void, otherwise to remain in full force and virtue.
S. P. McDole. [seal.] ”

On the return clay of the summons the defendant appeared and filed a plea to the declaration, to which a demurrer was sustained, and judgment rendered in debt for $5000, the penalty of the bond, damages $650.20, for the breach assigned. Execution was issued upon the judgment, and the damages collected. After the collection of the judgment, and on the 18th day of November, 1881, the plaintiff in the action served a written notice on the defendant that he would appear in the county court of said county on the first day of the December term, 1881, and make application to the court for leave to sue out a writ of inquiry to assess damages for a further breach of the conditions of the bond, for a failure of defendant to pay plaintiff the amount of rent due from the 22d day of April, 1880, to the 22d of April, 1881. On the day named in the notice plaintiff filed a further assignment of breaches on the bond, as follows :

“And for a further assignment of the breaches of the covenants and conditions of the bond in the declaration herein mentioned, and by leave of the court first had and obtained, the said plaintiff, Eodney McDole, says that the said defendant, S. P. McDole, was, and has been, in the continued, uninterrupted and peaceable possession and occupancy of said premises in said bond and declaration mentioned, for and during the year, commencing on the 22d day of April, A. D. 1880, and ending on the 22d day of April, 1881, and thereby the said defendant, 8. P. McDole, became and was liable to pay to the plaintiff, Eodney McDole, another installment of $600 rent on said bond for the year aforesaid, which became due on said 22d day of April, A. D. 1881. And plaintiff avers that the said defendant, 8. P. McDole, has neglected and refused, though requested, to pay, ” etc.

The defendant appeared, and the cause was submitted on the following stipulation:

“It is hereby stipulated by and between the parties that the facts in this proceeding are as follows: That the said defendant has been in the uninterrupted possession of the farm mentioned in the bond originally sued on in the said suit, a copy of -which is filed with the declaration therein, from the time of its date, under the said bond and demise therein mentioned; that the breach originally declared on was for the installment of rent secured by said bond for the year commencing on the 22d day of April, A. D. 1879, and ending on the 22d day of April, A. D. 1880; that at the time of the commencement of said suit in which the said judgment was recovered, to-wit, on the l'3th day of August, A. D. 1881, there was due on said bond, and unpaid, not only the said installment due April 22, 1880, but also another yearly installment, being for the year commencing on the 22d day of April, A. D. 1880, and ending on the 22d day of April, A. D. 1881, which said last mentioned installment, with interest thereon, only, is what the plaintiff seeks to have assessed in this proceeding; that the said judgment for §050.20 damages, together with the interest thereon, and the costs taxed in said cause, (except the costs of this proceeding,) have been paid and satisfied by the defendant, and before the institution of this proceeding; that the question to be determined is, whether the commencement of the said suit for one, only, of the two installments then due, the recovery of the judgment for such one installment, and its satisfaction, in law bars the plaintiff from now, in this proceeding, recovering the second installment due, as aforesaid, at the time of the commencement of said suit; and whether the satisfaction of said judgment was not also, in law, the satisfaction of the said second installment so due as aforesaid,— it being conceded that no other payment of said installment so due April 22, 1881, has been made. It is further stipulated that no other pleadings other than those filed need be filed by either party, or other proceedings had, to raise the said question so to be determined, but said matter shall be determined by the court upon the said record and this stipulation as though all matters were specially pleaded, a jury being waived by both of said parties, and without further evidence. The plaintiff is either entitled to an assessment for the sum of $600, with interest from the 22d day of April, A. D. 1881, or judgment in this proceeding must be rendered for the defendant. ”

The court, upon the facts, rendered judgment for defendant, which, on appeal, was affirmed in the Appellate Court.

It may be regarded as a uniform and well-settled rule of law that a party can not split an entire cause of action, and bring two or more suits to recover different portions of the same debt. This rule is founded on a sound principle of public policy, which forbids the commencement and prosecution of vexatious law suits. Where a demand is entire, no reason can be perceived why it should be split up into two or more actions, and thus subject a debtor to the payment of useless and unnecessary costs. But the question to be determined here is, whether the demand in question, within the meaning of the law, is to be regarded as entire, or is it capable of division into two separate and distinct causes of action. As has been seen, the bond which contains the contract required the payment of $600 on the 22d day of April of each year. . At the time the action of debt was brought there was due $600 April 22, 1880, and $600 April 22, 1881, but the plaintiff sued only for, and recovered only, the installment due April 22, 1880. If the installments due under the bond were separate demands, the judgment would not bar a recovery for the second $600 due; but if the whole amount due when the action was brought constituted an entire demand, it follows that the judgment for a part would bar a recovery for the balance.

This court has held, in several cases, that where a contract for the payment of money is executed, payable in two or more years, with interest, annually, at a given rate, the holder of the contract may, at the end of the year, sue and recover the interest. In Dulaney v. Payne, 101 Ill. 325, where a note was given payable in one year from the date thereof, with interest payable semi-annually, two years thereafter a suit was brought to recover the interest then due, and judgment was rendered for the interest, it was held that such judgment would be no bar to a subsequent action on the note to recover the principal. It was also held that the promise to pay interest was a distinct cause of action from the promise to pay the principal. This case was followed by Wehrly v. Morfoot, 103 Ill. 185, where a similar question arose, and the same doctrine was announced. If separate actions may be maintained upon a note which contains a promise to pay interest at one time, and principal at another .and a different time, as was held in the Dulaney case, upon the same principle, and for a like reason, a separate action may be brought upon a bond providing for the payment of a specified amount of money at specified annual periods.

Several decisions of this court, based upon a statute requiring a party commencing a suit before a justice of the peace to consolidate all his demands which are of such a nature as to be consolidated, have been cited, and are relied upon as authority,—such as Lucas v. LeCompte, 42 Ill. 303. But these cases, being based upon a statute in regard to actions brought before a justice of the peace, can have no bearing on a case brought in a court of record upon a demand like the one involved in this case. Casselberry v. Forquer, 27 Ill. 170, has also been cited, but in that case the lease provided for an annual rental of $150. At the time suit was brought, one year’s rent,—that is, $150,—was due, and the court held that this $150 was an entire demand, which could not be split into two actions before a justice of the peace. The principle decided in that case does not militate against what is said in this case.

The second question presented by the record is, whether a recovery can be had in this proceeding, or shall the plaintiff be required to resort to a new action. The proceedings to assign damages in this case were commenced under sec. 21, chap. 110, Eev. Stat. 1874, which provides: “In actions brought on penal bonds conditioned for the performance of covenant, the plaintiff shall set out the conditions thereof, and may assign in his declaration as many breaches as he may think ñt, and the jury, whether on trial of the issue or of inquiry, shall assess the damages for so many breaches as the plaintiff shall prove, and the judgment for the penalty shall stand as a security for such other breaches as may afterwards happen, and the plaintiff may, at any time after-wards, sue out a writ of inquiry to assess damages for the breach of any covenant or covenants contained in such bond subsequent to the former trial or inquiry, and whenever execution shall be issued on such judgment, the clerk shall indorse thereon the amount of damages assessed by the jury, with the costs of suit, and the sheriff or coroner shall only collect the amount so indorsed: Provided, that in all cases where a writ of inquiry of damages shall be issued for any such breaches subsequent to the first trial or inquiry, the defendant, or his agent or attorney, shall have at least ten days’ notice, in writing, of the time of executing the same.” It is contended that under the statute the judgment for the penalty of the bond stands only for such breaches as may afterwards happen, and as the rent sought to be recovered here was due before the judgment for the penalty of the bond, the writ of inquiry to assess damages will not lie. This question was settled in The People v. Compher, 14 Ill. 447, where it was expressly held that any breach of the conditions of the bond for which damages have not already been assessed, forms the proper subject matter of a new assignment and assessment. This case arose on an official bond, but in Dent v. Davison, 52 Ill. 109, it was held that the statute also applied to other penal bonds conditioned for the performance of covenants. There are certain expressions used by the court in the opinion in the case last cited, which, it is contended, lay down the rule that breaches can only be assigned for such damages as may have been sustained after the action was brought on the' bond; but upon an examination of the case it will be found that nothing is decided that militates against the doctrine announced in The People v. Compher.

In conclusion, we are of opinion that the judgment of the Appellate Court should be reversed, and the cause remanded.

Judgment reversed.