author: Mr. Justice Mulkey

text:
    Charles W. Thomas et al. v. The People, for use of John Joiner.

      Filed at Mt. Vernon May 7, 1883

      Rehearing denied November Term, 1883.

      1. Administration—on live man’s estate, null and void. A grant of administration on the estate of a person who is living, together with all acts done under such grant, is absolutely null and void. The only jurisdiction the county court has in respect to the administration of estates, is over the estate of deceased persons.
    2. In this case moneys which were the proceeds of a sale in partition came to the hands of the master in chancery. Prior to that time, one of the parties in interest had absented himself from his home, and not having been heard from by his relatives or acquaintances for more than seven years, administration was granted on his estate, on the hypothesis he was dead. The master in chancery thereupon paid over to the administrator the portion of the money belonging to his supposed intestate. It turned out that the person supposed to be dead was still alive, and it was held, he was entitled to recover from the master the money which had come to his hands, and which he had improperly paid over under the void grant of administration.
    3. Jurisdiction—must be founded on law, not on pleadings alone. Jurisdiction, in the general and most appropriate sense of that term, as applied to the subject matter of a suit, is always conferred by law, and it is a fatal error to suppose the power to decide in any case rests solely upomthe averments in a pleading. While the court must be called upon to act and decide by a party before it can proceed, yet behind this, power must be conferred by law to act in a real case of the character of the one supposed by the pleading or complaint. “
    4. Judgment—binds parties only. The general rule is, that no one is bound by an adjudication in a suit of which he had no notice, or to which he was not a party.
    ' Appeal from the Appellate Court for the Fourth District; —heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.
    Mr. Charles W. Thomas, for the appellants:
    The probate court had authority to hear evidence and determine whether the facts alleged in an application for the appointment of an administrator were true or untrue, (Gross’ Stat. 1871, p. 808, sec. 71,) and having such power, its decision upon such an application can not be attacked collaterally. Roderigas v. East River Savings Institution, 63 N. Y. 460; Wight v. Wallbaum, 39 Ill. 563.
    In no case cited by appellee was there any statute conferring discretionary power upon the probate court. The statutes in those cases made the fact of death jurisdictional, and the principle of those cases was denied by this court in Wight v. Wallbaum, supra. But in this State the law is established, by a long and unbroken line of decisions, that in proceedings like this, jurisdiction does not depend upon the existence or non-existence of any particular fact alleged in the application, but the making of the application gives the court jurisdiction to investigate and decide. Young v. Lorain, 11 Ill. 624; Fitzgibbon v. Lake, 29 id. 165; Stow v. Kimble, 28 id. 93; Mulford v. Stalzenbach, 46 id. 303; Hobson v. Ewan, 62 id. 146; Chicago, Burlington and Quincy R. R. Co. v. Chamberlain, 84 id. 333; Galena and Chicago Union R. R. Co. v. Pound, 22 id. 399; Dodge v. Cole, 97 id. 338. And a decision once made by a court, which is duly set in motion, can not be attacked collaterally, no matter how absurd it may be. It may disregard, misconstrue, and even disobey, the plain provision of the law, but it must nevertheless stand unimpeached in every collateral inquiry. Young v. Lorain, 11 Ill. 624; Grignon’s Lessee v. Astor, 2 How. 319.
    The appointment of an administrator is in the nature of a proceeding in rem, (Freeman on Judgments, see. 607,) and in such proceedings the court acquires jurisdiction in a manner different from that in which jurisdiction is acquired in proceedings in personam. Grignon’s Lessee v. Astor, 2 How. 319.
    In Illinois the presumption of life ceases at the end of seven years from the time one was last heard from, and the presumption of death takes its place. This presumption of death is a presumption of law, and one upon which courts may act. (Whiting v. Nicholl, 46 Ill. 230.) And under this decision the presumption is not mere evidence,—it is a presumption of law such as is defined hy Best in his work on Evidence, sec. 304.
    Public policy and necessity require that rights depending upon the death of persons long absent and not heard from, should be settled by some definite rule, regardless, to some extent, of private rights. Whiting v. Nicholl, 46 Ill. 230; Freeman on Judgments, sec. 607.
    Messrs. Wilderman & Hamill, and Mr. Henry M. Needles, for the appellee:
    No power or jurisdiction is committed by law to the probate court to grant administration upon the estate of a living person, and such administration is void. Const. 1870, art. 6, sec. 18; Griffith v. Frazier, 8 Cranch, 9; Jochumsen v. Suffolk Bank, 3 Allen, 87; Melia v. Simmons, 45 Wis. 334; D’Arusment v. Jones, 4 Lea, 251; Devlin v. Commonwealth, 14 Pa. 795; Stephenson v. Superior Court, 15 Cal. 140; Rodrigas v. East River Savings Institution, 76 N. Y. 316; Lavin v. Emigrant Industrial Savings Bank, 9 U. S. 541; McPherson v. Cunleff, 11 S. & R. 422; Allen v. Dundas, 3 Term Rep. 123; Appeal of Peebles, 15 S. & R. 42; Bolton v. Jacks, 6 Rob. 190; Duncan v. Stewart, 25 Ala. 408; Morgan v. Dodge, 44 N. H. 259; Fisk v. Norval, 9 Texas, 18; Wales v. Willard, 2 Mass. 120; Freeman on Judgments, (3d ed.) sec. 319 a.
    If the appointment of an administrator is a proceeding in rem, or in the nature of a proceeding in rem, the jurisdictional fact of death must actually exist, or the jurisdiction fails and the proceeding is void. Munroe v. The People, 102 Ill. 406; Thompson v. Whitman, 18 Wall. 457; Rose v. Himely, 4 Cranch, 241; Wheelwright v. Depeyster, 1 Johns. 471; D'Arusment v. Jones, 4 Lea, 251; Freeman'on Judgments, (3d ed.) sec. 319 a.

      A person, while a citizen and resident of one State, went into another State and instituted proceedings for a divorce, and the record showed the existence of the jurisdictional fact of residence in the State of the forum; but it .was held, the actual fact being shown by evidence aliunde that \ such person was never a resident of the State where the decree was rendered, that the decree was void, and not entitled to “faith and credit.” Sewall v. Sewall, 122 Mass. 156; The People v. Dawell, 25 Mich. 247; Hoffman v. Hoffman, 46 N. Y. 30; Hood v. The State, 56 Ind. 263; Gettys v. Gettys, 3 Lea, 260.
    Where a court or judicial officer assumes to hear and determine a matter not committed to it or him by the law, the proceeding is void. Munroe v. The People, 102 Ill. 406; Griffith v. Frazier, 8 Cranch, 23; Stephenson v. Superior Court, 15 Rep. 140; Melia v. Simmons, 45 Wis. 334.
    It is axiomatic in American jurisprudence that there can not be a de facto officer unless there be a de jure office,—in other words, there can not be such a thing as a de facto office. Hildreth v. Mclntire, 1 J. J. Marsh. 206; Stephens v. The People, 89 Ill. 337; 5 Wait’s Actions and Defences, 7.
    It results, that even if the rule as to de facto officers applies to administrators, unless Joiner was dead there was no estate to administer, and if there was no estate to administer there could not be an administrator, de facto or de jure. Roderigas v. East River Savings Institution, 76 N. Y. 316; Allen v. Dundas, 3 Term Rep. 123; Griffith v. Frazier, 8 Cranch, 9; Munroe v. The People, 102 Ill. 406.
    To so construe the statute cited by appellants as to render the granting of letters of administration upon the estate of a living person binding upon such person, is to render it unconstitutional. Const. 1870, art. 6, sec. 18; Lavin v. Emigrant Industrial Savings Bank, 9 U. S. 541; Gilmore v. Sapp, 100 Ill. 297; Campbell v. Campbell, 63 id. 462.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This is an appeal from a judgment of the Appellate Court for the Fourth District, affirming a judgment of the circuit court of St. Clair county for the sum of $703.87, in favor of the People of the State of Illinois, for the use of John Joiner, and against Charles W. Thomas, the appellant, and others, on his official bond as late master in chancery of St. Clair county.

It appears that after the execution of the bond sued on, and during his term of office, there came into Thomas’ hands, as such master, certain moneys, being the proceeds of a sale of real estate made by him in a partition proceeding, $703.87 of which belonged to the said Joiner, and for which the recovery in this suit was had. Long before the partition proceedings, however, Joiner had left his home and people in St. Clair county, and his whereabouts was to them, and all his former acquaintances, wholly unknown. Not having been heard of by any of his relations or acquaintances for more than seven years, his brother, Daniel Joiner, acting upon the hypothesis he was dead, applied to and obtained from the county court of St. Clair county letters of administration on his estate. After administration had been thus granted on John’s estate upon the hypothesis that he was dead, the said Charles W. Thomas, upon formal demand by Daniel Joiner, paid to him, as the administrator of John, the latter’s share in the proceeds of the partition sale. John subsequently, however, turned up alive, and on Thomas’ refusal to pay the rda.im a second time, instituted the present action, with the results already stated.

The foregoing facts are specially pleaded as a defence to the action, and the question for determination is, are they sufficient for that purpose. While the question has never before; so far as we are advised, been directly presented to this court, yet it is by no means a new one. It has frequently been mooted before the courts of this country and of England, though actual decisions directly upon the question are not very numerous. Judging from the cases where the point has come directly in judgment, as well as from judicial dicta and expressions of opinion to be found .in the standard text-books, there has been but little diversity of opinion upon the question. The general doctrine on the subject undoubtedly is, that a grant of administration oh a live man’s estate, together with all acts done under such a grant, is absolutely null and void. Allen v. Dundos, 3 T. R. 125; Freeman on Judgments, (3d ed.) sec. 319 a; Jochumsen v. Suffolk Savings Bank, 3 Allen, 87; D’Arusment v. Jones, 4 Lea, 251, 40 Am. Rep. 12 ; Stephenson v. Superior Court, 15 Rep. (Col.) 140; Melia v. Simmons, 45 Wis. 334, 30 Am. Rep. 746; Griffith v. Frazier, 8 Cranch, 23.

It is said by Freeman, in discussing the question, in his work on Judgments, above cited: “The decrees and orders of a probate or surrogate’s court, made in the exercise of jurisdiction conferred upon it by law, are as final and conclusive as the judgments, decrees or orders of any other court. The character and finality of res judicata attach to the decisions made in probate or surrogate’s courts, irrespective of the nature of the issue determined, provided, always, that the court had jurisdiction to determine it. Hence, whether the adjudication be for or against the validity of a will, for or against granting letters of administration, allowing or disallowing an account, granting or refusing to grant a homestead, it is in either ease a final settlement of the matter of which it assumes to dispose, and it can not be collaterally attacked, impeached or avoided in the same or in any other court by any of the parties thereto, nor by any person in privity with them. It is, however, as in other cases, essential that the parties to be affected be brought within, the jurisdiction of the court by the service of notice prescribed by law, and that the court have jurisdiction over the subject matter. The question occasionally arises whether the grant of- letters testamentary or of administration on the estate of a person in fact living, but supposed to be dead, is an act beyond the jurisdiction of the court, and therefore so utterly void that no person is protected in dealing with the executor or administrator while his letters remain unrevoked. The weight of authority is very decidedly to the effect that the decease of the supposed decedent is a prerequisite to the jurisdiction of the court, and that he is wholly unaffected by the proceedings for the settlement of his estate,—the only adjudication, so far as we are aware, in conflict with the rule here stated, having been rendered by the Court of Appeals of the State of New York.” We fully concur in this general statement of the author on the subject.

In line with the doctrine here announced it is said in Melia v. Simmons, supra: “The proceedings of administration!, settlement and assignment of the estate of the respondent, represented to have been dead when he was and still is alive, are absolutely null and void, for all purposes whatsoever. * * *' The county court of Dodge county, or any other court, has no jurisdiction in this particular case or in such a class of cases. There is no class of cases which embraces the administration of the estates of living persons as if they were dead. The proceedings are void ab initio and throughout. If this ease falls within any class of eases, it is a class in which no court has any right to deliberate or render any judgment, and in which every conceivable act is an absolute nullity. The only jurisdiction the county court has in respect to the administration of estates, is over the estates of cleacl persons. It would seem that the bare statement of such a proposition is enough, without citing authorities.”

The only case we have been able to find, or to which our attention has been called, holding a contrary doctrine, is that of Roderigos v. East River Savings Institution, 63 N. Y. 460, (referred to by Freeman in the above citation,) which was decided by a divided court of three to four, and has since been the subject-of much-adverse criticism. • (10 Am. Law Eeg. 787; 15 id. 212.) The case, it is true, is placed upon the peculiar provisions of the New York statutes, but we confess we see nothing in them that seems to warrant the conclusions drawn from them. Moreover, we regard the authority of that case as a precedent, even in New York, much shaken by the reasoning of the New York Court of Appeals in the same case, when before it on a subsequent occasion. The case as last reported will be found in 76 N. Y. 316.

It must be conceded that if the probate court had authority to act at all in the particular case before it, then its adjudication, like that of any other court, became binding and conclusive upon all parties to the proceeding, until reversed or otherwise set aside. The real question therefore is, whether the court had any authority to act at all. The contention of appellant is, “that the jurisdiction of the probate court did not depend upon the death of Joiner, but upon the fact that that court was set in motion by the application for an. administrator, and having been so set in motion, its jurisdiction to investigate and decide was complete, and its decision can not be collaterally attacked as to anything the court was called upon to decide. ” This proposition, in the light of the facts as confessed upon the record before us, we regard as fundamentally erroneous. Jurisdiction, in the general and most appropriate sense of that term, as applied to the subject matter of a suit at law or in equity, is always conferred by law, and it is a fatal error to suppose the power to decide in any case rests solely upon the averments in a pleading. It is true that a court is not permitted, on its own motion, to institute a suit between the parties to a controversy. As claimed by appellant, there must be a properly framed complaint or other pleading showing a cause of action within the. jurisdiction of the court, before it can lawfully proceed to adjudicate. But behind all this there must be power in the court, conferred by law, to act in a real case of the character of the one supposed by the ■ pleading or complaint, and if there is not, the whole proceeding, and all acts done under it, will be inoperative and void.

The position of appellant is well met by the case of Griffith v. Frazier, supra, where the question in hand came under consideration. Chief Justice Marshall, speaking for the court, said in that case: “To give the ordinary jurisdiction, a case in which, by law, letters of administration may issue, must be brought before him. In the common case of intestacy it is clear that letters of administration must be granted to some person by the ordinary; and though they should be granted to one not entitled by law, still the act is binding until annulled by the competent authority, because he had power to grant letters of administration in the case. But suppose administration to be granted on the estate of a person not really dead ? The act, all will admit, is totally void. Yet the ordinary must always inquire and decide whether the person whose estate is to be committed to the care of others be dead or in life. It is a branch of every cause in which letters of administration issue. Yet the decision of the ordinary that the person on whose estate he acts is dead, if the fact be otherwise, does not invest the person he may appoint with the character or powers of an administrator. The case, in truth, was not one within his jurisdiction. It was not one in which he had a right to deliberate,—it was not one committed to him by the law; and although one of the points occurs in all cases proper for his tribunal, yet that point can not bring the subject within his .jurisdiction.”

The general proposition that under our system of government no one can be' deprived of his life, liberty or property without due process of law, is not denied or questioned, and as John Joiner was in no sense a party to the proceeding before the probate court when letters on his estate were granted, on what principié can he be said to be bound by the action of the court in making the grant? The general rule unquestionably is, that no one is bound by an adjudication of which he had no notice or to which he was not a party. Testing the present case by this rule, appellee is clearly not bound.

But it is said the grant of letters, upon an estate is in the nature of a proceeding in rein, and therefore the case in hand does not come within the rule mentioned,—that the proceeding being against the estate itself, those having an interest in it must look out for themselves. Conceding this to be so, what follows ? Are we to conclude because the law confers power upon the probate court to grant administration on a dead man’s estate, upon a mere ex parte petition, that it therefore follows the court may lawfully make such grant upon a live man’s estate, and that even without giving him an opportunity to be heard? By the 18th section of article 6, of the present constitution, in defining the probate jurisdiction of county courts, it is declared: “County courts shall be courts of record, and shall have original jurisdiction in all matters of probate and settlement of estates of deceased persons, ” etc. Thus the county court, as a court of probate, is expressly clothed with power to settle estates of “deceased persons,” and this, according to a familiar rule of construction, by implication forbids the exercise of such power over the estates of live persons.

Regarding, then, the administration of a dead man’s estate as a proceeding in rein, and looking to the constitutional limitation of the court’s power in such cases, what is the first essential condition to the exercise of this power ? Manifestly the existence of a dead person’s estate, for the court has no power to grant administration on any other kind of an estate, and any attempt to do so will necessarily be inoperative and void. In every proceeding in rem, and in every case in the nature of a proceeding in rent, there is some great central controlling fact upon which the jurisdiction or power in the court to act at all depends, and such fact must have an actual existence, otherwise the jurisdiction will fail. (Thompson v. Whitman, 18 Wall. 457; Wheelwright v. Depeyster, 1 Johns. 471; Rose v. Hunsly, 4 Cranch, 269.) In the case last cited it is said by Chief Justice Makshall, speaking for the court: “Upon principle it would seem that the operation of every judgment must depend on the power of the court to render that judgment,—or, in other words, on its jurisdiction over the subject matter which it has determined. In some cases that jurisdiction unquestionably depends as well on the state of the thing as the constitution of the court. If, by any means whatever, a prize court should be induced to condemn, as prize of war, a vessel which was never captured, it could not be contended that this condemnation operated a change of property.” With equal propriety it may be said, if by any means a probate court should grant letters of administration upon the estate of one still living, the title of the owner of such estate could not thereby be affected. The great central fact in this class of cases, as we have already seen, is the existence of a decedent’s estate subject to administration and distribution by the probate court of the proper county. It is confessed, upon the record before us, that in the present case the owner of the estate in question at the time of the grant of letters was, and still is, alive. It follows, therefore, the grant was unauthorized and void.

The cases of Wight v. Wallbaum, 39 Ill. 563, Dodge v. Cole, 97 id. 338, and other cases cited by appellant, are supposed to be inconsistent with the view here taken. We do not think so. In the Wight case there was no defect of jurisdiction. There was present the estate of a dead man to be administered. This actual fact authorized the court to proceed, and a mere irregularity ih the proceeding could not, as was held in that case, be taken advantage of in a collateral proceeding. So in the Dodge ease, there was an insane person to be cared for and protected by a court of chancery. That was the great central fact-in that case upon which the jurisdiction of the court depended. If, in that ease, there had been no insane person, and such fact had been admitted upon the record, as is here, then that and the present case would be in principle alike; but such is not the fact. Take the common case of a proceeding in admiralty to enforce maritime liens against a ship or other water craft. Unquestionably before the court could lawfully proceed there would have to exist, as a fact, a ship, or other maritime vessel, subject to the order and, adjudication of the court, otherwise it would have no power to act at all. Suppose, in a case of that kind, the liens sought to be enforced were, in point of fact, on a private residence situated upon dry land, and the court should nevertheless, after hearing the case, go on and order a sale of the premises, would the owner’s title to the property be thereby divested ? Surely not. And why so? Simply because the court had no power or jurisdiction to act at all in that kind of case.

All persons are presumed to know the law, and hence, in theory at least, there can be no great hardship in holding that every one acts at his peril in dealing with an administrator who has been appointed upon a mere presumption that his supposed intestate is dead. Every one dealing with an administrator thus appointed is conclusively presumed to know, if the supposed intestate should subsequently turn up alive, the grant of administration, and all acts done under it, would be absolutely void.

The judgment will be affirmed.

Judgment affirmed,.


source: Caselaw Access Project

author: Mr. Justice Craig

license: Public Domain

text:
    Samuel T. Songer et al. v. James Partridge et al.

      Filed at Mt. Vernon May 7, 1883

      Rehearing denied November Term, 1883.

    1. Fraudulent conveyance— binding between the parties. Where one person conveys property to another with intent to defraud creditors, a court óf equity will not aid the grantor to regain the property so placed beyond his control, but, as a general rule, will leave the parties in the position in which they have voluntarily placed themselves.
    2. Same—when subsequent contract to reconvey may be enforced. Although a conveyance of land is made which is fraudulent, in law, as to creditors of the grantor, and which is set aside at the instance of his creditors in a proceeding in bankruptcy, yet, where the grantor, after paying all his debts and obtaining his discharge, surrenders to his grantee the notes given by him, and the latter, in consideration of such surrender, relinquishes all his right, title and interest in the premises under the conveyance, which, by agreement, is to be cancelled, the latter agreement may be enforced in equity, as the transfer of the property is purged of the fraud, and the new contract is founded on a valid consideration.
    Appeal from the Circuit Court of Wayne county; the Hon. Chauncey S. Conger, Judge, presiding.
    Mr. Rufus Cope, and Mr. C. C. Boggs, for the appellants:
    A deed may be fraudulent, though not made to avoid the payment of debts. It is enough if it is intended to in anywise embarrass, hinder or delay the creditor. Dunaway v. Robertson, 95 Ill. 420 ; Phelps v. Curts, 80 id. 109; Quarles v. Kerr, 14 Gratt. 48; Bump on Fraudulent Conveyances, 19, 20.
    The conveyance, being fraudulent, was good as to all the world except creditors. They being satisfied, the deed stands good, and can not be avoided by the grantor. Hannon v. Hannon, 63 Ill. 512; Campbell v. Whitson, 68 id. 240; Horn v. Zimmerman, 45 id. 14; Ward v. Enders, 29 id. 519.
    Equity will not remove a cloud on a title resulting from a contract against public policy. Bestor v. Wathen, 60 Ill. 138; Linder v. Carpenter, 62 id. 309.

      A court of chancery will not interfere to grant relief to either of two parties who have engaged in a fraudulent transaction out of which suit has arisen. Miller v. Markle, 21 Ill. 152; Kerr on Fraud and Mistake, 324-326; Dunning v. Bathrick, 41 Ill. 425.
    If lands be conveyed under a fraudulent contract, and the grantor complies with his part of the- agreement, yet he can not have the aid of a court of equity, either to force a compliance with the agreement or to order a reconveyance, or cancellation of the deed. The rule in equity is to leave the parties to an illegal or fraudulent transaction exactly in the position their fraudulent • acts left them, extending aid to neither. St. Louis and Jacksonville R. R. Co. v. Mathers, 71 Ill. 592.
    Nor will a subsequent agreement to convey, founded on the original transaction, be enforced. Eyre v. Eyre, 4 C. E. Green, 42.
    A court .of equity so abhors a fraud that it will take up the objection of its own motion, if it appears from the bill, whether the defendant interpose it or not. Kerr on Fraud and Mistake, 374; Hamilton v. Ball, 2 Ired. Eq. 191.
    If the ease be between different volunteers, a court of equity will not interfere, but will leave the parties where it finds them. It will not aid one volunteer against another. 1 Story’s Eq. Our. 433; Salmon v. Bennett, 1 Am. L. C. 61; Dunning v. Bathrick, 41 Ill. 425.
    Mr. J. M. Crebs, Mr. J. R. Creighton, and Messrs. Beecher & Travis, for the appellees :
    It is the policy of the law to induce parties to abandon illegal or fraudulent contracts, and substitute valid ones instead of them. Bump on Fraudulent Conveyances, (3d ed.) p. 482, title “Rescission; " Starr v. Wright, 20 Ohio St. 107; White v. Brocaw, 14 id. 341; Swift et al. v. Holdridge et al. 10 id. 231; Matthews v. Buck, 43 Maine, 265; Fargo v. Ladd

      & Reed, 6 Wis. 118; Hutchins v. Sprague et al. 4 N. H. 469; Thomas v. Goodwin et al. 12 Mass. 140; King v. Cantrel, 4 Ired. 251; White v. White, 13 id. 265; Thrall v. Spencer, 16 Conn. 135; Clark’s Admr. v. Rucker, 7 B. Mon. 583; Davis v. Graves, 29 Barb. 480; Stanton v. Shato et al. 59 Tenn. 12; Brooks v. Martin, 2 Wall. 70; Sumner v. Hicks, 2 Blackf. 532.
    Although a contract may have been declared void, as hindering or delaying creditors, yet if a subsequent arrangement is fairly made, on a sufficient consideration, it will be valid. See same authorities cited above, and Hess v. Final, 32 Mich. 517; Conkling et al. v. Carson et al. 11 Ill. 503; Sterry v. Arden, 1 Johns. Ch. 261.
    The notes given by Buffington to Fitzgerald were valid, and surrendering them up was a sufficient consideration. Parker v. Tiffany, 52 Ill. 286.
    The contract was valid between the parties, and could only be avoided by creditors or others injured. If the creditors did not complain, or if they had been paid, it was no longer a fraud. Parker v. Tiffany, 52 Ill. 286.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by Jasper Partridge and Isaac Fitzgerald, in the circuit court of Wayne county, against Titus Buffington and Samuel T. Songer, to enjoin the prosecution of an action of ejectment, and to set aside a certain deed executed by Fitzgerald to Buffington, purporting to convey certain premises to him. The defendants interposed a demurrer to the bill, which was overruled, and they electing to abide by the demurrer, a decree was rendered in favor of complainants, as prayed for in the bill.

As the demurrer admits the material allegations of the bill, so far as this record is concerned they are to be taken as true. Conceding, then, the truth of the material allegations of the hill, the question presented is whether they are sufficient to authorize the decree rendered by the court.

It appears from the bill that in 1867 complainant Fitzgerald owned in fee lots 17 and 19, in the town of Fairfield, and other real estate; that he was largely indebted to various parties from whom he had purchased goods; that he owned a large amount of real estate, but could not realize ready money upon it; that he was threatened by some of his creditors with bankrupt proceedings; that in order to protect his own rights and the rights of his creditors, believing he could sell his lands and real estate to a better advantage for his own interest and the interest of his creditors than the same could be sold by the officers of the law, knowing at the same time that under the Bankrupt law any conveyance he might make might be set aside within six months by his creditors, should they commence bankrupt proceedings against him, on the 13th day of December, 1867, he executed and delivered to' Buffington,—who- also knew all the facts,—a deed of the property and other lands for $5100, for which Buffington gave his notes. It is also alleged in the bill that Buffington and Fitzgerald understood that the deed might be set aside by the creditors, and -they agreed that if the creditors should set aside such conveyance Fitzgerald should then surrender to Buffington his notes, and that Buffington should surrender any rights he might have in the lands which had been conveyed to him. It is also alleged that proceedings in bankruptcy were commenced in the United States District Court at Springfield; that the creditors, through the .assignee, applied to the court to have the deed made to Buffington cancelled, and the deed was vacated by order of the court, and the property subjected to sale to pay the debts of Fitzgerald. It is also alleged that in the proceedings a homestead was assigned Fitzgerald in lot 19. The bill also contains this allegation: “Tour orator, Fitzgerald, after said sale was set aside, having paid and settled the decree and judgment in bankruptcy in full, and got a full and complete discharge, showing a full settlement with his creditors, in consideration of such understanding on the part of both your orator, Fitzgerald, and said defendant, Buffington, orator did then and there deliver and surrender to defendant, Buffington, the notes for said lots, and he (Buffington) did then and there surrender all right, title, interest, claim and demand he had in and to said lots by virtue of said deed to orator. * * * That said deed then and there between them was cancelled, and, as they both supposed, was fully avoided by the judgment of the court aforesaid.” It also appears from the allegations of the bill, that some time subsequent to the surrender of the notes and the agreement to cancel and surrender the deed, Buffington claimed title in the lots, and conveyed lots 17 and 19 to Samuel T. Songer; that the deed was made without consideration, and that Songer had full notice of the rights of complainants in the premises; that Songer, in order to harass the complainants, brought an action of ejectment to recover the possession of the premises. The bill contains other allegations, but it will not be necessary to refer to them here.

It is contended by appellants that the conveyance of the property by Fitzgerald to Buffington was fraudulent, and being fraudulent it is binding and valid as against all persons except creditors of Fitzgerald. Where one person conveys property to another for the purpose and with the intent to defraud creditors, courts of equitjr will not aid such persons to regain the property thus fraudulently placed beyond control, but as a general rule courts of equity will leave parties to a fraudulent transaction in the position they have voluntarily placed themselves. Do the facts of this case bring it within the rule announced ? From the allegations in the bill it may be that no actual fraud was contemplated,— that the object was to make as large an amount as possible out of the property for the benefit of creditors,—but under the rules of the law doubtless the conveyance might be regarded as fraudulent in law. But if the conveyance was fraudulent at law, and liable to be set aside by creditors, the question arises whether a subsequent contract entered into between the parties in relation to the conveyance may be enforced. It appears from the bill, that after the deed was set aside upon application of the creditors, Fitzgerald paid his debts and obtained a full discharge, showing a full settlement with his creditors. After this settlement Fitzgerald then surrendered to Buffington the notes which he had given for the property, and in consideration of the giving up of the notes Buffington surrendered all right, title and interest, claim and .demand, he had in and to said lots by virtue of the deed which Fitzgerald had made to him, and the deed was, by agreement, to be cancelled. While the original sale might be regarded as fraudulent at law, and Fitzgerald unable to enforce in a court of equity any rights in regard to ■ the property conveyed which arose under or by virtue of the fraudulent conveyance, yet we perceive no reason which will prevent a court from enforcing a contract entered into between the parties in regard to the property after the creditors had all been paid, and after the transfer of the property had ceased to be a fraudulent conveyance. Here, after the transfer of the property had been purged of its obnoxious character, in consideration that Buffington would relinquish all claim to the lands .under the.deed, the complainant delivered to him his notes, amounting to over $5000. This was a legitimate contract, founded upon a valid consideration, and we are aware of no principle which will forbid its enforcement.

A question not unlike the one here involved arose in Parker V. Tiffany, 52 Ill. 286, and a contract entered into between two parties to a fraudulent contract after it had ceased to be such, was sustained. It is there said: “Whatever the nature of the'first transaction, and its consequences, the subsequent surrender of the note, and recognition of appellee’s ownership of the property, could not he affected by it.” Here the surrender of Buffington’s notes was a sufficient consideration for his agreement to relinquish and surrender all claim of title to the lots, and we-perceive no reason which will prevent a court of equity from enforcing such an agreement, based, as it was, upon a valid consideration. If reliance was placed on the original agreement entered into at the time the deed was made to Buffington, a different question would be presented; but such is not the case. The decree of the circuit court was doubtless rendered upon the new agreement made by the parties after complainant had paid his debts, and being founded upon that contract we are of opinion it was correct.

The decree of the circuit court will be affirmed.

Decree affirmed.


author: Mr. Justice Dickey

text:
    Charles K. Harland v. Henry B. Eastman.

      Filed at Ottawa September 29, 1883.

    1. Evidence—hearsay—as to pedigree. Eacts involved in a question of pedigree may be established by proof of general reputation in the family, or by proof of what deceased members of the family may have said.
    2. The husband of a grandchild will not be allowed to swear to any specific thing which his wife, or either of her uncles, still living, has said in his hearing as to the death of the wife’s grandfather, and what heirs survive him; nor can he be allowed to state his conclusions from such unsworn statements, unless all of them taken together, with their surroundings, enable him to say such was the accepted state of the case in the family, or such was the uncontradicted repute in the family.
    3. Where a witness called to prove pedigree and heirship, (a relative of the deceased by marriage,) in his testimony shows that his association with the family was so slight that the presumption of his knowledge arising from that relation is entirely rebutted by his own statements, and there are other living members of the family, or relatives, living and within the reach of the process of the court, his testimony as to facts he has heard from his wife will not suffice to prove the heirship.
    Appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    This is an action of ejectment, brought by appellee, against appellant, claiming title in fee to lot 45, block 37, in school section addition to Chicago, and for the possession thereof. The plea is not guilty.
    Plaintiff claims that one Abraham B. Adams was the owner in fee, and seeks to show title in himself through three deeds, executed, one by Enoch E. Adams, one by Alfred A. Adams, and one by Adelaide B. Pate, each purporting to convey to plaintiff an undivided one-third of said lot. The proof shows that Abraham B. Adams died in 1872 or 1873, and these deeds were made in 1880 and in 1881. To show title in plaintiff it was necessary to show title in these grantors. To do this he undertook to prove that these three grantors constituted the only heirs at law of Abraham B. Adams, deceased. To this end he introduced as a- witness J. C. Tucker, who testified that he lived in Chicago from 1856 to 1860, “and off and on, then, until 1875,” when he moved back to Chicago, and had lived there ever since; that he knew Abraham B. Adams in his lifetime; first saw him in 1863; he then lived on this property and had a wife living with him, and witness saw him once afterwards, two to five years later; that witness knew two of his children; that there were three, —Enoch E., Alfred A., and Sarah; that Sarah ivas married, and afterwards died, some thirty years ago,—before the witness knew the family; that witness married a daughter of Enoch E. Adams,—a grand-daughter of Abraham B. Adams; that when Sarah died she left one child, who married one A. B. Pate, and is now living, and is Mrs. A. B. Pate; that Sarah left no other child. (At this stage of the testimony defendant moved to exclude from the jury this testimony as to Sarah and her children. The motion was denied, and defendant excepted.) The witness further testified that Enoch Adams and Alfred are both living, now, in the State of Illinois, and that Mrs. Pate lives in Ohio.
    On cross-examination the witness stated, that when he first saw Abraham B. Adams, in 1863, the wife of witness was with him, and they stayed about two hours; that witness then lived at Cincinnati, and had never seen him before, and on the subsequent visit he stayed about an hour,—and this is all the acquaintance he had with him; that he has no personal knowledge of his death or his- wife’s death; that he never saw Sarah, or knew her or her family, or of her death, except from the relatives of the wife of witness; that he never heard that Sarah ever had more than one child; that Abraham B. Adams was married twice; that Alfred A., Enoch E., and Sarah, were all children by his first wife; that when witness called, as above stated, Abraham B. Adams was living with his second wife; that witness never heard of any children by her. The witness then stated that all he knew about these things was hearsay, from his wife and her relatives.
    Michael 0. Day, a witness for plaintiff, testified that in 1856 or 1857 he heard Abraham B. Adams say he had a son,—a boy with a farm,—in Ohio, soméwhere; and that this was before he took his second wife.
    Timothy Borden, another witness for plaintiff, who had lived for twenty-six years within fifty feet of the property in controversy, and became acquainted with Abraham B. Adams in 1856, and knew him ever after while he lived upon this property, testified that he never knew of any children by the second wife.
    This was all the testimony relating to the inheritance from Abraham B. Adams. After plaintiff closed his proofs, defendant moved to exclude tlie testimony given, but the motion was overruled, and defendant excepted. After verdict for plaintiff, a motion for a new trial, by defendant, was overruled, to which defendant excepted, and thereupon judgment was given for plaintiff. This is an appeal by defendant from that judgment.
    Mr. Allan C. Story, for the appellant.
    Messrs. J. P. & T. B. Wilson, for the appellee.
   Mr. Justice Dickey

delivered the opinion of the Court:

The motion for a new trial ought to have been sustained. The testimony in the case palpably failed to show that the three grantors in the deeds to plaintiff were the heirs, and only heirs, of Abraham B. Adams. Facts involved in a question of pedigree may be established by proof of general reputation in the family, or by proof of what deceased members of the family have said. From the necessity of the case hearsay evidence of certain kinds is admissible in establishing matters of pedigree, and this because it is the best evidence of which the nature of the case admits. What has been said by deceased members of the family is admissible, upon the presumption that as such members they knew, from general repute in the family, the facts of which they speak. Now, while such a presumption as to thediusband of a grandchild of the intestate may, under some circumstances, prevail, still when, on cross-examination, it is shown that two of the children of the ■ intestate are living, and within the reach of the process of the court, it will not do to say that the testimony of such a witness shall be deemed sufficient where he shows he has no personal knowledge on the subject, and fails to show a general reputation in the family in support of what he had heard, and merely says he learned so and so from conversations with his wife and her relatives. Such conversations may have been such in extent and variety, and may have been held under such circumstances, as to enable a witness to say that such was the reputation in the family, but such conversations may not have been. such. The witness surely could not be permitted to swear to any specific thing which his wife, or either of her uncles, had said in his hearing, because they are all living, and their sworn testimony is better than their unsworn statements. It follows, the witness can not properly be allowed to state his conclusion from such unsworn statements, unless all of them taken together, with their surroundings, enable him to say such was the accepted state of the case in the family, or such was the uncontradicted repute in the family.

Again, while the witness says Abraham B. Adams had three children, (Enoch, Alfred and Sarah,) he nowhere says, distinctly, that these were his only children; and while he undertakes,' in speaking of Sarah, the aunt of his wife, who died many years before the witness knew the Adams family at all, to say she left only one child, who is still living, and the wife of one A. B. Pate, he n'owhere tells the given name of that child, or shows that she was the Adelaide B. Pate who made the deed to plaintiff. If it be true that the several grantors in these three deeds were really the only heirs at law, it can readily be proven by these three living witnesses. While the witness produced is a relative of deceased (Adams) by marriage, yet his own testimony shows that his association with the family was so slight that the presumption arising from that relation of his knowledge on the subject is entirely rebutted by his own statements. For this reason, if for no other, the judgment ought to be reversed, and another trial had.

The judgment is reversed and the cause remanded.

Judgment reversed.


author: Mr. Justice Craig Sheldon, Ch. J., and Dickey, J.,

text:
    Algy Dean, for use, etc. v. Edwin Walker.

      Filed at Ottawa November 20, 1882

      Rehearing denied Sept. Term, 1883.'

    1. Grantee—assuming to pay preexisting mortgage—rights and obligations of the parties. Where a grantee accepts a conveyance of land, with a clause or condition therein that he assumes and agrees to pay an existingincumbrance on the premises as a part of the consideration, with a knowledge of its contents, he will become personally liable to the holder of the incumbrance to pay the indebtedness, without his signing and sealing the deed.
    2. Where a deed for land imposes the obligation upon the grantee to pay and discharge an existing incumbrance upon the land, the grantee’s liability to the holder of the incumbrance rests upon the doctrine that when one person makes a promise to another for the benefit of a third person, the latter may maintain an action upon it. In such ease it is not necessary that there should be any consideration passing from the third person.
    3. Where the owner of real estate sells and conveys the same, incumbered by a mortgage which he had assumed to pay, to one who, as a part of the consideration of his purchase, assumes and expressly agrees to pay and discharge the mortgage, the contract will be for the benefit of the holder of the mortgage, and when he ratifies it and claims its benefit, the law operating on the act of the parties establishes a privity of contract between the grantee and the holder of the mortgage, and creates an obligation on the part of the former to pay the mortgage, and the mortgagee may, by an action in the name of the grantor, for his use, maintain a personal action against the grantee for the sum due upon the mortgage.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Messrs. Remy & Chumasero, for the appellant:
    A purchaser of land from a mortgagor who assumes and agrees to pay off the mortgage debt, makes himself personally liable to the holder of the mortgage debt. Burr v. Beers, 24 N. Y. 178; Cumberland v. Codrington, 3 Johns. Ch. 255; Law

      rence v. Fox, 20 N. Y. 268; Troup v. Keokuk Coal Co. 48 id. 253; Rogers et al. v. Herron et al. 92 Ill. 583.
    The grantee in a déed is bound to fulfill covenants on his part contained in a deed executed by the grantor only, and his acceptance of the deed binds him to pay a mortgage he has assumed therein. Spaulding v. Hallenbeck, 33 N. Y. 207; Trotter v. Hughes, 2 Kern. 74; Belmont v. Cowan, 22 N. Y. 438.
    Where the payment of an outstanding mortgage is part of the purchase price of the land, the law will imply an agreement by the grantee to pay it. Comstock v. Hitt, 37 Ill. 542 ; Townsend v. Ward, 27 Conn; 610.
    Where A promises B, for a valuable consideration, to pay C, the latter may maintain an action for the money. Brewer v. Dyer, 7 Cush. 337; Arnold v. Lyman, 17 Mass. 400; Hall v. Marston, id. 575; Binsee v. Page, 1 Abb. Ct. App. 138; Rubens v. Brindle, 44 Barb. 369; Cornell v. Rescott, 2 id. 16; Johnson v. Zinke, 52 id. 396; Miles v. Watson, 1 Sweeney, 374; Tillotson v. Boyd, 2 Sandf. Ch. 516; Ranson v. Copeland, 2 id. 256; Butler v. Bucklin, 2 Denio, 45; Tripp v. Vincent, 2 Barb. Ch. 613; Guernsey v. Rogers, 47 N. Y. 233; Miller v. Winchell, 70 id. 437; Fulton v. Dickinson, 10 Mass. 287; Watson v. Cambridge, 15 id. 256; Lent v. Pudelford, 10 id. 230; Scott v. Gill, 19 Iowa, 187.
    Mr. Ellis S. Cheesbeough, Jr., for the appellee;
    The modern English doctrine, and that of many of the States, is, that no action can be brought by a party who is a stranger to the consideration. Crow v. Rogers, 1 Strange, 592; Tweddle v. Adkinson, 1 Best & Smith, 393; Exchange Bank v. Rice, 107 Mass. 37; Warren v. Bachelder, 15 N. H. 129.
    In States where exceptions to this rule have crept in, the present tendency is toward narrowing the exceptions, and at all events there must be a definite intention t'o benefit the party who sues. Moore v. House, 64 Ill. 162; Kountz v. Holthouse, 85 Pa. St. 235; Davis v. Callaway, 30 Ind. 112.
    Where the grantor is personally liable, a bill in equity will lie in favor of the mortgagee, to avoid circuity of action, but there is no right of action when the grantor is not liable. Mellen v. Whipple, 1 Gray, 317; Furnas v. Durgin, 119 Mass. 500; King v. Whitely, 10 Paige, 465; Trotter v. Hughes, 12 N. Y. 74; Vrooman v. Turner, 69 id. 280 ; Norwoods. De Hart, 30 N. J. Eq. 412; Stewart v. Worden, 42 Mich. 154.
    The bargain made by Walker was simply a purchase of the equity of redemption. The recital in the deed that the mortgage is assumed as part of the consideration, in the absence of proof of intention, does not create an imaginary fund. Fiske v. Tolman, 124 Mass. 254; Belmont v. Cowan, 22 N. Y. 438.
    To sustain this action an actual liability to the grantor is necessary. The mortgagor can not rely on any recorded acknowledgment of liability. Judson v. Dada, 79 N. Y. 373; Dunning v. Leavit, 24 Alb. L. J. 55; Young v. Trustees of Public Schools, 31 N. J. Eq. 290; O’Neill v. Clark, 33 id. 444 ; Laing v. Byrne, 34 id. 52.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action of assumpsit, brought by Algy Dean, for the use of Samuel H. Sweet and Charles Hutchinson, against Edwin Walker, to recover the amount of certain bonds, secured by mortgage on real estate in Chicago, which Walker had assumed and agreed to pay.

The facts out of which this litigation arose, are, in substance, the following: „ In February, 1873, George F. Work, being the owner of the premises, executed a trust deed thereon, to secure the payment of ten bonds, of $1000 each, payable four years after the date thereof. Afterwards, and on the 1st day of August, 1873, Work conveyed the premises, by warranty deed,'to Henry B. Jenks. On the 18th day of November, 1873, Henry B. Jenks conveyed the premises to Algy Dean, for an expressed consideration of $27,500. This deed contains the usual clauses, and concludes, after stating that the grantor had not incumbered, or caused to be incumbered, 'the premises and property conveyed, in any manner, as follows: “Except as to a certain deed of trust made to Henry M. Shepard, bearing date October 1, 1872, to secure a loan of $25,000, and also a certain deed of trust made to George Scoville, trustee, bearing date February 1, 1873, to secure a loan of $10,000; which said two trust deeds, and the indebtedness thereby secured, are hereby assumed, to be paid by the said party of the second part. ” On the 4th day of November, 1874, Algy Dean, the grantee in the last named deed, for a consideration .of $54,000 expressed in the deed, sold and conveyed the premises to the defendant, Edwin Walker. This deed contains, immediately following the description of the property conveyed, the following clause: “Subject, however, to a certain deed of trust made to Henry M. Shepard, bearing date October 1, 1872, with accrued interest thereon from October 1, 1873, to secure a loan of $25,000; and subject, also, to a certain deed of trust'made to George Scoville, trustee, bearing date February 1, 1873, with accrued interest thereon from August 1, 1874, to secure ja loan of $10,000.” And immediately after the habendum et tenendum clauses in the deed, is contained the following assumption: “Subject, however, to the two trust deeds, the taxes and claims aforesaid, all of which the said party of the second part hereby assumes and agrees to pay as part of the consideration of this conveyance. ” Sweet and Hutchinson having purchased a portion of the bonds secured by the deed of trust named in the assumption clause, this action was brought in the name of Dean, for their use, to recover the amount of the same from Walker, who had assumed payment by the clause contained in the deed under which the premises were conveyed to him.

It will be observed that Walker did not sign the deed under which the property was conveyed to him, and which contained the assumption clause, but he accepted the instrument and •placed it upon record. The law did not require Walker to sign and seal the deed himself in order to make its terms and conditions binding upon him. The acceptance of such a deed, with a knowledge of its contents, binds the grantee as effectually as though the deed had been inter partes, and had been executed by ■ both grantor and grantee. • (Crawford v. Edwards, 33 Mich. 354.) Thorp v. Keokuk Coal Co. 48 N. Y. 255, is also an authority in point. 'It is there said: “Inthe deed from Franklin to it, the defendant expressly assumed to pay the plaintiff’s mortgage, and this, as it is now well settled, binds the defendant to the same extent as if it had also signed the deed.” ■ ■

Deeds of lands made subject to a mortgage, and deeds containing an assumption clause purporting to bind 'the grantee to pay an existing incumbrance, have been the source of much discussion in the courts in regard to the rights and duties of the grantor, grantee, and the person holding the incumbrance on the property conveyed. A deed made subject to an outstanding mortgage creates no personal liability on the grantee to pay off the incumbrance, in the absence of a contract to pay, or unless the amount of the mortgage has been deducted from the purchase price, and left in the hands of the grantee. (Comstock v. Hitt, 37 Ill. 542; Fowler v. Fay, 62 id. 375; Jones on Mortgages, sec. 748.) Thus far the law seems to be well settled. Where, however, a deed contains a clause in- which the grantee' assumes an incumbrance on the premises conveyed, and agrees to pay the same, and an action is brought to enforce such a contract, the questions growing out of such a transaction have been attended with •more difficulty. But we think the law may be regarded as well settled, where A has given a mortgage on a tract of land to B, and subsequently conveys to 0, the deed containing a contract that C assumes the mortgage and agrees to pay the same, that B may compel the grantee to pay the mortgage indebtedness, either by a suit at law or by a bill in equity foreclosing the mortgage, and a personal decree against the mortgagor and the purchaser of the mortgaged premises, for any deficiency. Jones on Mortgages, sec. 741, in discussing the relation of the parties in such a case, says: “A purchaser who assumes the mortgage becomes, as to the mortgagor, the principal debtor, and the mortgagor a surety; but the mortgagee may treat both as principal debtors, and may have a personal decree against both.” But whether this is the true situation of the parties or not, where the mortgagor, who is bound for the payment of a sum of money secured by mortgage on land, conveys the same, and the grantee, by a clause in the deed, assumes the payment of the mortgage indebtedness, no reason is perceived which will prevent the mortgagee, for whose benefit the clause in the deed is inserted, from maintaining an action upon such a contract against the grantee.

' It is a familiar rule, and one well sustained by authority, that where one person, for a valuable consideration, makes a promise to another for the benefit of a third person, such third person may maintain an action upon it. It is not necessary in such a case that there should be any consideration moving from the third person, for whose benefit the promise is made, or that there should be any privity between them. The conveyance of the land is the consideration for the promise, and the fact that the consideration moves from the mortgagor is a matter of no moment. This is well illustrated in Brown v. Dyer, 7 Cush. 337, where it is said: “Upon the- principle of law long recognized and clearly established, that where one person, for a valuable consideration, engages with another to do some act for the benefit of a third, the latter, who would enjoy the benefit of the act, may maintain an action for the breach of such engagement,—that it does not rest upon the ground of any actual or supposed relationship between the parties, as some of the earlier cases seem to indicate, but upon the broad and more satisfactory basis that the law, operating upon the acts of the parties, creates the duty, establishes a privity, and implies the promise and obligation on which the action is founded.”

But it is said a third party can not bring an a’ction in his own name on a contract under seal between third parties', and in support of this, Moore v. House, 64 Ill. 162, is cited and relied upon. In the case cited it was held that a covenant can not be sued upon by the person for. whose benefit it is made, if he is not a party to the deed, j In the same case it is also held that where a contract not under seal is entered into by1 two for the benefit of a third person, it is a general principle the latter may sue thereon in his own name, although the agreement may not be directly to or with him. What is said in relation to an action on a sealed instrument is merely a reiteration of the common law rule on that subject when the case was decided-, but since that case was decided the rule of the common law on that subject has been changed by section 19, chapter 110, of the Revised Statutes of 1874, page 776, so that now it is immaterial, for the purpose of bringing the suit, whether the contract is under seal or not. Chitty, in his work oh Pleading, (vol. 1, p. 4,) says: “If the instrument be not under seal, it seems to be a general principle that the party for whose sole benefit it is evidently made, may sue thereon in his own name, although ■ the engagement be not directly to or with him. ” w ■

As our statute has, therefore, abolished the distinction between contracts under seal and those not under seal, (except penal bonds,) so far as bringing an action on such contracts is concerned, the law, as declared by Chitty, applies as .well to contracts under seal as to those not under seal. Indeed, we do not understand that the proposition is denied in the argument, that if Jenks had been bound to pay the mortgage indebtedness, tbe assumption clause in bis deed to Dean would have imposed a liability on Dean; and, also, tbe assumption clause in tbe deed from • Dean to Walker would have rendered Walker liable for the indebtedness. But it is contended, as Jenks held title to the equity of redemption without any personal liability resting upon him to pay the mortgage, the assumption clause in his deed to Dean imposed no obligation on Dean, and as Dean was, therefore, under no legal obligation to pay the debt, the assumption clause in his deed to Walker created no liability on him,—in other words, the position is, that a grantee of mortgaged premises can not be made liable to pay the mortgage indebtedness by an assumption clause in the deed, however strong the intent may he expressed by the language used, unless the grantor is himself, at the time of making the deed, liable for such indebtedness. We are aware of the fact that there are cases which sustain this view of the law, such as Trotter v. Hughes, 12 N. Y. 74, King v. Whitely, 10 Paige, 465, and the late case of Vrooman v. Turner, 69 N. Y. 280,—but we are not inclined to follow them. The New York cases are predicated upon the principle that where the grantor is liable for the mortgage indebtedness, and the deed under which he conveys contains an assumption clause, the grantee becomes the principal debtor by virtue of the agreement, and the grantor occupies •the situation of a mere surety for him as to the payment of the mortgage indebtedness. Such being the relative situation of the parties, in equity the creditor, who is the mortgagee, is entitled to the benefit of all collateral obligations for the payment of the debt which a person standing in the situation of a surety for others has received for his indemnity, to relieve him or his property from liability for such payment. (10 Paige, 468.)

It is quite true that this principle of equity could not be invoked, and this remedy in equity made available, if the grantor of the mortgaged premises was not himself liable for the mortgage indebtedness, for the reason that the relation of principal debtor and surety would not exist between the grantor and grantee. But is there no other principle of law upon which the grantee may be rendered liable upon a contract which he has deliberately made upon a valid consideration ? We think there is,—that it may be placed on the broad and well settled principle that where one person makes a promise to another, based upon a valid consideration, for the benefit of a third person, such third person may maintain an action upon it. Here, it was not necessary that any consideration should pass from the owners of the mortgages, to Walker,—it was enough that his contract was based upon a consideration, which moved from Dean to him. A portion of the purchase price of the land was left in his hands, in consideration of which he agreed with his grantor, Dean, to pay the mortgages. It was a matter of no consequence to him whether Dean was legally bound to pay those mortgages or not. Dean had the right to make such a disposition of the purchase money as he saw proper in selling the land. He might have directed that the purchase money should be paid by Walker to some public charity, to a church or a college ; and if Walker, in making the purchase, agreed to pay the purchase money to any or either of these objects, no reason is perceived why he might not be compelled to perform his contract. It was no concern of his to whom the purchase money should be paid. Dean had the right 'to make such disposition of it as he saw proper, and when, for some reason known to himself, he saw proper to direct that the mortgages on the land should be paid from the purchase money which Walker agreed to pay for the premises, and Walker expressly agreed to pay these mortgages, it is a matter in which he is in no manner concerned, whether Dean was legally liable to pay such mortgage indebtedness or not. It was enough that he, for a valuable consideration, assumed the mortgages and agreed to pay the same.

The questions here involved arose in a recent ease in Pennsylvania, (Merriman v. Moore, 90 Pa. St. 79,) and it was there expressly held that it was not necessary to a recovery that the grantor should he himself liable to pay the debt,— that the vendor had the right to direct to whom the purchase money might be paid, and if the vendee agrees, for a valuable consideration, to make payment according to the directions of the vendor, he can not set up as a defence that the vendor was not bound to pay. In deciding the case it is said: “A vendor may direct how the purchase money shall be paid. He may reserve it to himself, donate it to a public charity, or may make such other disposition of it as may best meet his views; and if his vendee agrees to pay it according to such directions, he can not set up as a defence that his vendor was under no duty to apply it in such manner.”

• What right has Walker to question the validity of the mortgage which he assumed and agreed to pay ? In Pidgeon v. Trustees of Schools, 44 Ill. 501, where Mansfield and wife executed a mortgage upon their homestead without the statutory waiver, and afterwards conveyed to Pidgeon, the deed containing a clause that as a part of the consideration money he was to pay the mortgage, it was held, in a suit to foreclose, that the grantee having obtained a deed of the premises by admitting the lien and assuming its payment, he was estopped from setting up as a defence the omission of the mortgagors to release their homestead right. In Crawford v. Ediuards, 33 Mich. 354, where mortgaged premises were conveyed, the deed containing an assumption clause, it was held that the grantee was not at liberty to show in defence that the mortgage he had assumed and agreed to pay was without consideration, and therefore not a valid claim against his grantor. In Comstock v. Smith, 26 Mich. 306, a similar question arose, and it was there held that where one has purchased lands, and as a part of the. purchase price has covenanted to pay a mortgage given by his grantor, he can not avoid liability by showing that the mortgage was not enforceable against snch grantor by reason of a personal disability to execute a valid and binding mortgage.

The principle which underlies the cases cited has a bearing on the ease under consideration. After Walker, as a part of the consideration for the purchase of the mortgaged premises, acknowledged the validity and binding force of the mortgage indebtedness, and agreed to pay the same, what right has he to defeat a recovery by showing that his grantor was not legally bound to pay the debt ? But whether we are correct in this or not, we are satisfied that the rule that it is not necessary in order to a recovery that the grantor should be liable, is sound in principle, and one which will promote the ends of justice, and compel the due enforcement of contracts.

The judgment will be reversed, and the cause remanded for further proceedings consistent with this opinion.

Judgment reversed.

Sheldon, Ch. J., and Dickey, J.,

dissenting:

When a promise, for value, is made to one for the benefit 'of another, with the intention to benefit him, it is conceded" the beneficiary may maintain an action in his own name upon a breach of the promise. In this case, however, the action is brought in the name of the man to whom the promise is alleged to have been made, and not in the name of the one for whose benefit it is supposed to have been made. If it be the true construction of this promise 'that it was intended for the benefit of the holder of the mortgage, then Dean, as between himself and Walker, is a mere surety for Walker, and can maintain no action, at least for more than nominal damages, until he has paid money, to the holder of the mortgage. Until then he is not damaged by the failure of Walker to pay. It can add nothing tb his right of recovery that he sues for the use of the mortgagee.

Aside from this, it seems to us that the true construction of the promise of Walker to pay off the mortgage is, that he undertook to indemnify Dean against the mortgage. ' Such is the teaching of the New York cases referred to, and we think it is, sound. (See, also, Norwood v. De Hart, 30 N. J. Eq. 412, and Miller v. Whipple, 1 Gray, 317.) , We do not say that a grantee of mortgaged premises can not be made liable to pay the mortgage indebtedness by an assumption clause in the- deed, however strong the intent may be expressed by the language used, unless the grantor is himself, at the time of making the deed, liable for such indebtedness. What we think is, that in a ease where the grantor is not personally liable, .as here, the words called the assumption clause, are to be construed as a mere indemnity to the grantor, unless there was an intention on the part of the grantor to do a kindness to the mortgagee or confer a benefit upon him. No doubt a grantor, if he chooses, may contract with a stranger that the latter will paya given sum to a friend of the grantor, or to any one to whom he may choose to do a kindness or confer a benefit upon, and in such case the contract could be enforced by the beneficiary. In this case there are no words in the deed, and no evidence or circumstances, indicating that the grantor took any interest in the welfare of the then unknown holder of this mortgage, or intended to confer upon him any benefit. It is to be supposed, from the circumstances, there was no such intention, and in such case we are of opinion - no action can be maintained on the promise by the mortgagee, or for his use, and that the promise must be understood as only for the indemnity of the grantor.


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    James A. Cummins v. William H. Holmes et al.

      Filed at Ottawa September 28, 1883

      Appeal—in replevin—as to amount involved. An appeal lies from tbe Appellate Court to this court in an action of replevin, where the value of the property replevied exceeds $1000, without regard to the extent of the interest of the contesting parties thereto. If the evidence shows the property to exceed this sum in value, this court will have jurisdiction.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Mercer county.
    Messrs. McCagg & Culver, for the appellant.
    Messrs. Bassett & Wharton, for the appellees.
   Mr. Justice Mulkey

delivered the opinion of the Court:

• This is a motion to dismiss the appeal for want of jurisdiction. It appears from the record that William H. Holmes and others, the appellees, having become sureties of Samuel W. Gailey, on a note for $500, the latter, by way of indemnity, executed to them a chattel.mortgage on a stock of goods belonging to him. After appellees had taken possession of the goods under the mortgage, James A. Cummins, the appellant, having in his hands, as sheriff, an execution in favor of Crofoot, Steele & Co., against Gailey, for $722 and costs, levied the same upon the stock of goods in question, as the property of Gailey. Appellees thereupon brought an action of replevin against the sheriff for the recovery of the goods. On the trial of the cause the issues were found for the plaintiffs, and judgment entered accordingly. On appeal to the Appellate Court the judgment of the circuit court was affirmed, and Cummins thereupon appealed to this court. The appellees now move to dismiss the appeal, on the ground the amount in controversy does not exceed $1000.

If the jurisdiction of this court depends upon the amounts of the claims of the mortgagees and execution creditors taken separately, then the position of appellees is well taken, for neither the execution nor the mortgage amounts to $1000. On the other hand, if they are to be aggregated they amount to more than that sum, and by this test the appeal clearly lies. But we do not think either of these views is the correct one. The object of the present suit is not to adjust or settle the rights of the parties with respect to the ultimate distribution of the property or its proceeds among the claimants, but, on the contrary, to recover the property itself. The action then being to recover the possession of the property itself, and not to determine the plaintiff’s or defendants’ ultimate interest therein, the value of the property alone must be looked to in determining this court’s jurisdiction. A moment’s reflection would seem to demonstrate this to be the true view. By the execution of the replevin writ the plaintiff, whether he has any right to the property or not, is put into the absolute possession and control of it, and often, as was done in this case, sells and disposes of it before the cause is brought to a hearing. Suppose, in such case, the plaintiff finally fails in his suit, and it turns out he had no interest in the property whatever. The property is gone and he can not restore it, and, of course, he and his sureties on the replevin bond are bound for the full value of it. This simple illustration clearly shows that the sum or value in controversy in a replevin suit is the value of the property replevied, and so this court has uniformly held.

Again, suppose the sheriff had sold or otherwise converted the property in dispute to his own use before the service of the replevin writ, and the plaintiffs had inserted a count in trover in their declaration for the conversion of the goods, it is clear the plaintiffs would be entitled to recover the full value of the property, although they would hold a portion of the proceeds, when recovered, in trust either for the plaintiffs in the execution, or the mortgagor, as their interests might appear. This often happens where the suit is brought by a bailee for hire, for the tortious conversion by a stranger of the subject of the bailment. The bailee, in such case, is always permitted to recover the full value of the property, although his interest -in the proceeds is limited, otherwise the wrongdoer would be liable to be harassed by several actions a.t the suit of different persons for the same wrong, with respect to the same property. This the law does not permit, and hence the rule in question.

We are clear, therefore, both from the language of the statute and the construction heretofore given it by this court, as well as from the analogies of the law, that the value of the property replevied, alone, should be looked to in determining the question before us. The property in dispute in this case is clearly shown by the evidence to exceed $1000, and it therefore follows the appeal was properly brought to this court, and hence the motion to dismiss must be overruled.

Motion denied.


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    Isaac D. Mail, County Collector, v. George H. Maxwell et al.

      Filed at Mt. Vernon November 16, 1883.

    1. Judgment ok decree1—how far conclusive upon the rights of persons not parties. A decree of tbe circuit court, on bill filed by certain taxpayers against tbe county collector, enjoining tbe collection of taxes levied on tbe complainant’s property, for interest on corporate bonds issued by a town to a railroad company, on tbe ground that such bonds are void, is conclusive on tbe parties thereto that tbe bonds are void, and that no tax to pay interest thereon can be lawfully collected from such tax-payers, and such decree is a complete defence to an application by the collector for judgment against such tax-payers’ lands for such taxes. But bondholders not made parties to the bill are not concluded by such decree.
    2. And where a non-resident creditor, after having obtained judgment against a town for interest claimed to be due on its bonds previously issued, in the United States Circuit Court, presented his petition to that court for a mandamus against the county collector of the county in which the town was situated, under which the writ was awarded and issued: Held, that the town and tax-payers thereof not being parties to that proceeding, were not concluded by the judgment awarding the writ.
    3. Same—rights 'and remedy of persons not parties to a proceeding, but whose rights are affected by the decree therein. Where a decree is rendered enjoining the collection of taxes to pay interest accruing on municipal bonds, the bondholders not being made parties, such decree is not conclusive against a bondholder, or res judicata as to him; but it does not follow that such party may ignore such decree, and require the collector to collect the tax in violation of the injunction. If the bondholder in such case can show' that the bonds are valid, he may file a bill of review, making the parties to the former proceeding all parties defendant, challenging that decree upon the ground that he was not a party thereto, and have the question of the validity of the bonds adjudged de novo.

    4. Conflict of jurisdiction—interference as between different jurisdictions. Where one court has acquired jurisdiction, no other court, State or Federal, will, in the absence of supervising or appellate jurisdiction, interfere, unless in pursuance of some statute, State or Federal, providing for such interference.
    Appeal from the ■ County Court of Crawford county; the Hon. Franklin Robb, Judge, presiding.
    On January 8, 1876, bonds, purporting to he the bonds of the town of Honey Creek, in Crawford county, Illinois, were issued to the Paris and Danville Railroad Company, to the amount of $15,000, payable, on their face, at a future day, with interest from October 11, 1875, at the rate of ten per cent per annum, payable annually on January 1 of each year, with interest coupons attached. These bonds were duly registered in the office of the Auditor of Public Accounts. At the March term, 1881, in the circuit court of Crawford county, in a suit in which Maxwell and other tax-payers and residents of the town of Honey Creek were complainants, and in which the county treasurer and collector of Crawford county and the town collector of the town of Honey Creek were defendants, a' decree was entered, in obedience to the mandate of the Appellate Court for the Fourth District, by which the bonds in question were adjudged void, and a perpetual injunction ordered enjoining the county collector and the town collector, and their successors in office, among other things, from collecting from complainants, or either of them, any taxes levied upon the real estate of either of them, for the payment of interest upon any of the bonds mentioned. None of the bondholders seem to have been made parties to this proceeding.
    On March 4, 1882, one Preston, a citizen of Louisiana, recovered a judgment against the town of Honey Creek, in the Circuit Court of the United States for the Southern District of Illinois, (in which Crawford county lies,) upon certain coupons of these bonds, for the sum of $1276.36, and on April 19, 1882, presented to that court a petition for a mandamus against the county collector of Crawford county. This petition was answered by the collector, and on demurrer to the answer by the petitioner, the court held the answer insufficient, on May 1, 1882, and ordered the writ to issue, and on May 3, 1882, a writ of mandamus was issued, under the seal of that court, reciting the filing of the petition, answer and demurrer, and the judgment of the court, and in obedience to that recited judgment commanding the county collector forthwith to proceed, as required by the statutes of Illinois, to collect all taxes assessed, levied and extended within and for the town of Honey Creek, now due and unpaid, against the owners of real estate and personal property therein, for the payment of interest due and to accrue on the bonds in question, for the' year 1881 and prior years, appearing upon his tax warrant, “as well all such taxes returned as enjoined tax, as all such taxes as have been returned as delinquent, and to that end” to levy the same by distress and sale of personal property, etc., and that he “do, without delay, include in the advertisement now being made by him as such collector, giving notice of the intended application for judgment for sale of such said delinquent lands and lots so returned to him by the town collector of the town of Honey Creek, all the lands and lots against which any of said bond interest tax * * * now stands assessed and due,” and after having so advertised, etc., that he do include in his application for judgment and order of sale for taxes on delinquent lands and lots, at the approaching term of the county court of his county, and obtain judgment; and after he shall so obtain judgment as aforesaid, he shall proceed to sell, etc., until such taxes shall have been collected and returned to the authorities in the statutes provided. These lands were embraced in the delinquent list for 1881, and were advertised as chargeable with taxes for the payment of interest on railroad bonds, in two columns of figures,—one column headed “Enjoined Tax, ” and the other “T. E. E. Tax.” The figures in the first column were intended to represent back taxes of prior years, and the figures in the second column intended to represent the tax for the year 1881, against the several tracts. The amounts in each column were for the payment of interest upon these railroad bonds.
    The delinquent list, in that condition, was brought before the county court by the collector in the usual mode, and he asked for judgment against the lands, etc., for thé payment of these taxes, which application was resisted by Maxwell and other land owners who were parties to the decree in the State court. The county court, after hearing evidence, refused to render judgment' in that regard against the lands, and from this judgment of the county court the county collector appeals to this court, and insists that the county court erred in refusing to render judgment charging these lands with this railroad tax. On the hearing in the county court it was proven that Preston’s judgment had been paid in full. Other facts are stated in the opinion of the court.
    Messrs. Callahan & Jones, for the appellant:
    The mandate of the Circuit Court of the United States is not affected by an injunction of the State courts. High on Extraordinary Legal Remedies, p. 287, sec. 398.
    The question of the validity of the bonds having been settled in the Federal court, can not be inquired into here. Ibid. p. 268, sec. 280; p. 283, sec. 396.
    It is not necessary to obtain judgment before collecting money to pay the interest. Ibid. sec. 384.
    Messrs. Maxwell & Allen, and Messrs. Parker & Crow-let, for the appellees:
    The bonds have been adjudged void for non-compliance with the conditions of the vote of the people. Parker et al. v. Smith et al. 3 Bradw. 356.
    The county court should not order appellánt to do the very thing he was enjoined by another court from doing. He should have seen that the injunction was dissolved before making his application for judgment.
    Where a court of competent jurisdiction enjoins the collection of a tax, the matter should remain at rest until the injunction is dissolved in due form of law.
    An excess of taxation is illegal and void. Ramsey v. Hœger, 76 Ill. 432; Thatcher v. People ex rel. 93 id. 243; Mix v. People, 72 id. 241.
    In this case there is an apparent conflict of authority between the State and Federal courts,—the one enjoining a certain thing not to be done, the other ordering it to be done. If this be true, then the rule, as we understand it, is, that the court that first obtained jurisdiction of the matter will retain it. Under this rule, the State court having obtained jurisdiction of tlie case in 187.9, and the Federal court in 18S1, the former must retain control, and hence the injunction must be obeyed until dissolved by a court in review. The authority (High on Extraordinary Legal Bemedies, sec. 395, page 281,) cited by counsel for appellant, is in point against appellant, as there the Federal court had jurisdiction first, and the State court, by injunction, interfered. See Mayne v. Lowe, 9 Wall. 409,—being the ease cited by High in support of the position taken in said section 395.
    A judgment. against a township is a town charge, and should be audited by the town auditing board, and town tax extended to pay the same, and if the auditors refuse to audit judgment, then they may be compelled to do so by mandamus. Town of Lynn v. Cooledge et al. 89 Ill. 529.
   Mr. Justice Dickey

delivered the opinion of the Court:

The bondholders were not parties to the proceedings in the circuit court of Crawford county, and of course are not concluded by that decree. The tax-payers and the county collector, hovrever, were parties, and as between them that decree is conclusive that the bonds are void, and that no tax to pay interest thereon can be lawfully collected from these taxpayers. There aré no other parties before the county court in the case at bar, and it was not error in the county court to hold, that as between the complainants in that chancery suit in the circuit court and the defendant in that suit, that decree, whether erroneous or not, not having been set aside, was absolutely conclusive.

It is, however, strenuously contended that the writ of mandamus out of the Federal court should have prevailed as against the decree of the circuit court of Crawford county. The record in that mandamus proceeding was not produced. All we know of its contents we learn from the recitals in the writ of mandamus. We are not informed in any way what were the allegations of the petition or the statements of the answer to the petition, which were held insufficient in the Federal court. It is not shown what interest Preston sought to enforce by this mandamus,—whether he claimed as a judgment creditor, or merely as a bondholder, or otherwise. The judgment is not mentioned in the writ, and the scope of the writ covers the entire tax; and it does not appear that the injunction decree in the State court was at all brought to the attention of the Federal court. Hence we can not assume, what counsel for appellant seem to assume, that the Federal court, with a full knowledge of the existing injunction by the State court, ordered the collector, by this mandamus, to disobey that injunction. In the absence of clear proof this court can not assume that under such a state of case any Federal court would so order.

It is said the bondholders were not parties to the proceedings and decree in the State court, and therefore are not bound thereby. On the other hand, neither the town of Honey Creek nor the tax-payers were parties to the proceedings for mandamus in the Federal court, and by the same reasoning they are not bound thereby. The collector was a party in both eases, and may have violated some provisions of the injunction of the State court by attempting to procure a judgment for the sale of the lands for these taxes; but it is not perceived how he can be adjudged at fault in not obeying the mandamus, having used his best endeavors to obey it. It is not his fault that the county court refused to render judgment as asked. The mandamus does not contain any command to the county court to enter judgment for these taxes against these lands, and no court in this country would order a writ containing such a command.

Counsel seem to suppose that there is here shown a conflict of jurisdiction between the State and Federal courts, and a conflict of judgments on the same matter, and insist that where the interests of non-residents are involved, the authority of the Federal courts must prevail in defiance of the decrees of the State courts. Fortunately this is not so. The exercise of sound discretion by the respective courts in our complicated system of government, and the observance by them of a few simple and just rules, has been such that no serious difficulty has been encountered from such cause. Where one court has acquired jurisdiction, no other court, State or Federal, will, in the absence of supervising or appellate jurisdiction, interfere, unless in pursuance of some statute, State or Federal, providing for such interference.

Recurring to the facts shown in this record, it would have been erroneous and irregular, in the circuit court of Crawford county, to proceed to a final decree adjudging these bonds void, without having the bondholders before the court, unless, indeed, they were unknown, or for some other cause could not be brought in. Under such circumstances a court of chancery may proceed to decree that wffiich, if performed, may affect the interest of the absent party so interested. Such, no doubt, was the case acted upon by the State court. Such a decree is not conclusive as against such absent party. It can not be set up against him as res judicata. It does not follow, however, that such absent party may ignore such decree, and proceed as though it had not been rendered. In the case at bar, the county collector having been forbidden by the decree of the State court to collect taxes to pay interest on these bonds, the bondholder can not lawfully ask, as against the collector, an order that he shall disobey this injunction, until he, (the bondholder,) by some appropriate proceeding, has caused such decree to be opened and set aside. This may be accomplished, if that decree does injustice to the bondholder, perhaps, in more ways than one; but plainly, if the bondholder can show that these bonds are valid, he may file a bill in the nature of a bill of review, making the parties to the former proceedings all parties defendant, challenging that decree upon the ground that he was not a party thereto, and under such a hill he would clearly have the right to have the question of the validity of those bonds heard and adjudged ele novo.

In an application for a writ of mandamus it is always a matter in the discretion of the court to determine whether the same shall or shall not be issued, and does not necessarily issue in all cases where the petitioner shows a legal right to what is sought by the writ. We are not informed in this case that either the petition for manda7iius or the answer to that petition set out the adjudication of the State court. We can not believe that matter was shown to that court, otherwise no writ would have been ordered until that decree was opened and set aside, thus placing the collector in a position where he might obey the writ without disobeying an existing valid injunction. Be this as it may, it is sufficient, in this case, to say that the mere production of the writ of inandamus, without a transcript of the record in the Federal court, is not proof that the Federal court, in ordering the writ, adjudged these bonds to be valid. Such writ may guide the conduct of the collector, but can have no bearing upon the action of the court in determining whether judgment should be entered against these lands for the amount of these taxes. The judgment in the Federal court having been paid, could not be considered in the decision in this case.

We think the judgment of the county court, in view of the proofs, was right, and it is therefore affirmed.

Judgment affiimied.