author: Mr. Justice Tunnicliff

text:
    William Gordon et al. v. Frank P. Reynolds.

      Filed at Ottawa May 15, 1885.

    1. Fraudulent conveyance—sale on secret trust for benefit of the grantor—to hinder and delay creditors. A person being in debt, conveyed his real and personal property to his son, under an agreement made for the purpose, on the part of both, to defeat, hinder and delay a creditor in the collection of his debt, no consideration being paid therefor, and with a secret understanding the son should hold the property for the use and benefit of the father, and reconvey it to him when requested, and if the father did not require a reconveyance, the son to take care of him and provide him with necessaries during his life, and have the property at his death. It was held, the sale and conveyance were fraudulent and void as to creditors of the father.
    2. Even where the grantee pay's a valuable consideration, if a part of the consideration is an undertaking and promise by the grantee to support and take dare of the grantor, such an agreement renders the transfer void as to then existing creditors of the grantor.
    3. Same—distinction as to rights of prior and subsequent creditors. If the fraudulent grantor reserves no future use or benefit in the property, then the transfer can be attacked only' by preexisting creditors; but where the conveyance is merely colorable, and a secret trust exists for the benefit of the grantor, then the sale is void, both as to precedent and subsequent creditors.
    4. Same—inadequacy of consideration. The sale and transfer by a father to his son, of real estate of the cash value of $2500, and personal property of the value of $250, for the price of $500 paid, will be fraudulent as to existing creditors of the father, on account oí the gross inadequacy of consideration..
    5. Waiver op demurrer—by pleading over. A defendant, by answering a bill m chancery after the overruling of his demurrer thereto, waives his demurrer, except so far as he may have the same advantage on final hearing; and he can not assign for error the ruling upon the demurrer.
    6. Statute op Frauds—should be specially pleaded. The Statute of Frauds can not be relied on as a defence, in any case, unless insisted upon by plea or answer. Without it is thus interposed, a trust resting in parol will be enforced the,same as if it was in writing.
    7. Amendment—in chancery—how far matter of discretion. The granting of leave to amend the pleadings in chancery cases rests in the discretion of the court; and unless there is an abuse of discretion, the action of the court will not be the subject of review.
    8. Same—amendment of bill—to avoid, a variance—at what time. An amendment of a bill in chancery is properly allowed on the hearing, in furtherance of justice, to avoid the effect of a variance from the proofs. It is not material when amendments are permitted to be made, except as to the terms the court may impose as a condition thereto.
    9. Same—in case bill is unnecessarily sworn to. Where a bill is not required by law to be verified by the oath of the complainant, the fact that it is unnecessarily so verified affords no ground for refusing leave to amend the same.
    10. Evidence—on creditor's bill—acts of debtor. On the hearing of a bill to subject property conveyed by a judgment debtor to his son, to the satisfaction of the judgment, there is no error in refusing evidence offered by the son to show acts of the debtor done in furtherance of the rights of the creditor, and to aid him in the suit.
    11. Same—in chancery—receiving evidence subject to objections. As a general rule, the better practice in chancery cases is to receive evidence subject to such objections as may be taken to it, to be considered on the final hearing, when the court will disregard it, if incompetent, or if competent, give it such weight as it may be entitled to. In such case it will be presumed that the court considered only competent and relevant evidence.
    12. Witness—competency—wife for her husband. On bill to set aside a conveyance made by a judgment debtor as being fraudulent as to creditors, the wife of the grantee defendant is not a competent witness for him, to sustain the alleged bona fldes of the conveyance.
    13. Same—impeachment—by proof of inconsistent statements. " Declarations and statements of a witness inconsistent with his testimony, are not admissible in evidence to impeach him, unless where his testimony relates to matters material to the issues, nor then unless his attention has been called to the time, place and persons when, where and to whom he had made his supposed declarations.
    14. Same—time for offering impeaching evidence—discretion. Where plaintiff’s witness is asked certain questions on cross-examination, for the purpose of laying a foundation to impeach him, and he is again called by the plaintiff in rebuttal, after the defendant has closed his testimony, and asked as to other matters merely in rebuttal, it is a matter of discretion with the court at that stage of the case to allow the defendant to introduce evidence to impeach the witness.
    15. Error is obviated by evidence rejected being afterward received. Error can not be predicated on the refusal to allow a question to be answered by a witness when the witness afterward testifies to the same fact sought to be established by the question.

      Appeal from the Superior Court of Cook comity; the Hon. Henry M. Shepard, Judge, presiding.
    Mr. E. A. Sherburne, for the appellants.
    Mr. Elbridge Hanecy, for the appellee.
   Mr. Justice Tunnicliff

delivered the opinion of the Court:

On the 3d of. March, 1883, appellee exhibited his bill of complaint in the Superior Court of Cook county, against appellants and one Charles Gordon, alleging, in substance, that on that day he had recovered a judgment in said court against said Charles Gordon, for $2103, and costs; that an execution had been issued, and returned" no property found; that on the 16th of August, 1876, said Charles Gordon,was the owner-in fee of lot 12, in Waller’s subdivision of block 20, in Bicker-dike’s addition to Chicago, and also of a large amount of goods and chattels in the buildings on said real estate, and that on said day he pretended to assign and transfer said real and personal property to his son, William Gordon, for the nominal consideration of $500, but that said deed was never delivered and never became operative; that said William never paid said $500, or any part of it, and that said real estate and property were held by said William in trust, for the benefit and use of said Charles; that the consideration of said pretended conveyance was, that said Charles was to have a home on said premises, and was to receive from said property his future support and maintenance during his life; that said William and his wife soon after moved into the house on said premises, and still continue in the possession thereof; that he has never paid anything on account of said pretended conveyance, and that said premises are now held by him in trust for said Charles, and are liable for his debts; that said pretended conveyance was made to secure to said Charles a secret trust therein, and to hinder, delay and defraud his creditors, and to prevent said property being sold on execution against said Charles Gordon; that $150 of the indebtedness for which the note was given, upon which said judgment was recovered, was due and owing from said Charles Gordon to ■Margaret McGhie, for money loaned by her to him in December, 1874, and the balance of $1850 was obtained by him of her between the year 1877 and the date of the note, ■which was January 15, 1883, and" that the note was indorsed and delivered by said Margaret McGhie to appellee, before its maturity. There are other allegations made, and discovery sought, such as are usually inserted in a creditor’s bill proper; but defendants’ oath being waived, and this not being technically a creditor’s bill, they need not be further noticed. Prayer that said pretended conveyance be set. aside, and said real and personal estate subjected to the payment .of said judgment, and for such other relief as the nature of the case may require. .The bill was sworn to. A demurrer was. filed by William and Mary Gordon, which was overruled, and on April 30, 1883, they filed their answer, alleging that William ■Gordon purchased the property of his father, Charles Gordon, and paid him therefor $997.67,., and denied the other averments in the bill, substantially, and claimed that appellee is only nominally the complainant, and that Charles Gordon is the real complainant, and that they are conspiring to deprive William and Mary Gordon of the property. On the 1st of December, A. D. 1883, appellee filed a supplemental bill, stating that on the 16th of August, 1876, Charles Gordon was indebted to one Elizabeth Martin, in about $200, for which, on the 19th of December, 1876, she brought suit before a justice, recovered judgment, filed a transcript thereof in the circuit court, and caused execution to issue, and the lot in controversy levied upon and sold, and bid in by her, and not being redeemed from, she obtained a deed, and since the filing of the original bill,—to-wit, November 23," 1883,— has conveyed the premises to appellee; that long prior to August 16, 1876, Charles Gordon was the owner in fee of the premises, the same not being a homestead, and that on that day Charles conveyed the same to William for a pretended consideration of $500, which was never paid; that the same was made fraudulently, to hinder and delay creditors; that the property was worth $2500; that William has collected $1800 in rents from the premises, and that the consideration pretended to have been paid was grossly inadequate, and if William ever paid anything, he has been more than repaid in rents. Prayer that the conveyance to William be declared fraudulent and void, and appellee be decreed the owner, and for general relief. A demurrer to this supplemental bill having been overruled, the appellants, William and Mary Gordon, filed their answer, denying the indebtedness from Charles Gordon to Martin, and alleging that there was a conspiracy between them and appellee to deprive appellants of the premises ; that Martin and Charles Gordon had each filed a bill to set aside the deed from Charles to William, both of which had been dismissed,—one after a demurrer had been sus•tained to it, and the other for want of prosecution. William' and Mary also filed a cross-bill setting up the same facts, and that they.have made valuable improvements, and expended large sums for taxes and repairs, but ask no relief on til at account. They pray that the judgment, transcript and sheriff’s deed be canceled and set aside. An answer and replication -were filed, and on a hearing a decree was rendered, declaring the transfer from Charles Gordon to William Gordon, both as to the lot and the personal estate, void and of no effect as to appellee, and dismissing appellants’ cross-bill for want of equity.

The appellants have arranged the errors complained of, under five heads, in their brief: First, in overruling demurrer to the original bill; second, in overruling demurrer to the supplemental bill; third, in allowing appellee (complainant below) to state, as they say, one case -in his pleadings and to present a different one in his evidence; fourth, in excluding proper evidence offered in behalf of appellants; and fifth, in not dismissing the bill for want of equity.

The appellants not standing by their demurrers, but answering over, must be considered as having waived them, except so far as he may have the same advantage, in substance, on the final hearing, in case complainant (upon his whole ease, pleadings and proof considered,) is not entitled to the relief sought.

Under the third objection it is insisted the court erred in allowing appellee to amend his original bill after the evidence was substantially all heard, so that the allegations and proof might correspond. This was not only not error, but is a practice highly commendable, and absolutely necessary in a great-many cases to a proper administration of justice. We fully recognize the rule contended for by counsel for appellants, that a complainant can not make one ease by his pleadings and another by his evidence, and succeed. To obviate this he should do as was done in this ease,—obtain leave to and amend his pleadings so as to fit the case shown by the evidence. It is not material when such amendments arq made, except as to the terms the court, in its discretion, might see proper to impose as a condition to permitting the amendment; Usually these amendments are made after the evidence is all in, and the variance is brought out in the course of the argument, and it sometimes occurs that several amendments of this nature and for this purpose are made at different times during the final argument of the case. These amendments are purely discretionary, and ordinarily, in the absence of evidence showing an abuse of a reasonable discretion, are not subject to review. Rev. Stat. chap. 22, sec. 37; Jefferson County v. Ferguson, 13 Ill. 33; Hewitt v. Dement, 57 id. 500; Booth v. Wiley et al. 102 id. 84.

The court- properly excluded the proffered proof by the sheriff, that Charles Gordon was “so anxious” to have a demand made upon him for property to satisfy the execution that he went to the sheriff’s office to enable the sheriff to make it. He could not, by his acts or in any other way, do anything to prejudice the rights of his creditor, and we do not see, even if Charles Gordon was anxious to have appellee make his judgment out of this property, that it showed any conspiracy to do so 'wrongfully.

It is said the court erred in refusing to allow Mary Gordon, the wife of William, to answer this question: “Do you know whether your husband (appellant William,) paid him (Charles) anything for the property?” . Whether this ruling of the court was correct or not can not avail appellants, as they obtained the benefit of the testimony of Mary concerning that matter on her re-direct examination, in which she says : “I know that nay husband paid Charles Gordon money for the place, because I know he had it to pay, and paid it; and after he paid it I had a conversation with Charles about his having received it, and he said he had received $220 from William when he bought the place.” We do not see how Mary Gordon, the wife of William, could be a competent witness in his behalf in this case.

For the purpose of impeaching Charles Gordon, who had testified that he owed his daughter, Mrs. McGhie, $150 in 1874, he was asked by appellants’ counsel if he did not go to her house in 1876 and claim of her that she owed him $100, and if a difficulty did not thereupon ensue between him and Mrs. McGhie and another daughter, (Susan Gordon,) and lie go before a justice and swear out a warrant for their arrest, charging them’with an assault with a deadly weapon,— which he denied, and appellants introduced several witnesses, whilst offering the testimony on their behalf, to contradict said .Charles Gordon, and to show that he had stated, after his return "from Mrs. McGhie, that she had assaulted him and turned him out of doors, and said, “that is what I get for my $100.” After the appellants had introduced all their evidence, and closed the case on their part, and appellee was offering his evidence in rebuttal, and for that purpose had recalled and examined said Charles Gordon about other matters not relating in any way to his visit to Mrs. McGhie, or with his complaint against her, or her arrest, the counsel for appellants, after cross-examining about other matters, showed him the complaint, for the purpose of identifying his signature to it, which he did, and he, after reading the complaint, said that it was not correct, and counsel then offered in evidence the warrant issued by the justice for the arrest of Susan Gordon and Margaret McGhie, on the charge contained in the complaint, with the return of the officer showing their arrest,— whereupon the court refused to allow the record to be introduced at that stage of the case, and said it should have been offered before, and in thus ruling appellants insist there was error. As a general rule we think the better practice in chancery cases is to admit evidence, subject to such objections as may be taken to it, till the final hearing, when the court will disregard it, if incompetent, or if not, give such weight to it as it may be entitled to; and it is not necessary for the court, in its decree, to pass upon these questions, the presumption being that it considered all competent and relevant testimony, and none other. As to this particular evidence, it having been offered by appellants after they had closed their case, it was discretionary with the court whether it would receive it or not, and its decision in that respect can not be reviewed. But even if it was wrongfully excluded, it is not of that vital character which would necessitate a reversal of the case on that account.

The last objection of appellants, that the court erred in not dismissing the case for want of equity, brings the whole case before us for consideration.

' It will be observed from the pleadings in the case, that appellants, neither in their answer nor cross-bill, have alleged that the premises in controversy, either when conveyed to William, or at the time of the rendition of the judgments, or at any time, were the homestead of Charles Gordon, the vendor and judgment debtor; nor do they set up and claim the protection of any statute of limitations, or allege such a state of facts, if they existed, (and we do not intend to intimate that they.did exist,) as would authorize the successful pleading of that statute; nor do they ask for any account or allowance for improvements claimed to have been made, or for taxes paid; neither do they invoke the benefit of that section of our Statute of Frauds and Perjuries which provides that “all declarations or creations of trust or confidences of any lands, tenements or hereditaments shall be manifested and proved by some writing signed by the party who is by law enabled to declare such trust, or by his last will, in writing, or else they shall be utterly void and of no effect. ” It is too familiar law to require any citation of authorities, that this last statute can not be relied upon as a defence in any case, unless'insisted upon by plea or answer. Without it is thus interposed, a trust resting in parol will be enforced the same as though it was in writing. Had William Gordon, when he received this deed, executed and given to his father a writing declaring' that the conveyance of the lot to him was made and was to be held by him in trust for the use and' benefit of his father, no one would question that the father, Charles Gordon, would have such an interest in the lot that it could be sold on execution against him, whether the debt upon which the judgment had been obtained had been contracted prior or subsequent to the conveyance. The statute not being set up as a defence, the lot would be, under the parol agreement, just as much subject to the grantor’s debts, antecedent or subsequent, as though the agreement had been reduced to writing. But even if the statute had been insisted upon, the result would not have been different in this case, for the evidence, we think, establishes that a part of Mrs. McGhie’s debt, as well as all of that of Mrs. Martin, was contracted prior to the conveyance in eontroversy, and that the latter was made, by agreement between Charles Gordon and his son, William, with the purpose and intent, on the part of both, to defeat and hinder and delay Martin in the collection of her debt; that no consideration was paid for the pretended sale of the real or personal estate, and that there was a secret understanding between Charles and William Gordon that the latter should hold it for the use and benefit of the former, and reconvey it to him when requested, and if Charles did not require him to reconvey it he (William) should take care of him (Charles) and provide him with necessaries during his natural life, and have the property at his death. That such a sale is void both as to real and personal property, is well settled. (Lukins v. Aird, 6 Wall. 78; Moore v. Wood, 100 Ill. 451.) Even where the grantee pays a valuable consideration, yet if a part of the consideration is an undertaking and promise by the grantee to support and take care of the grantor, such an agreement renders the transfer .void, as to existing creditors of'the grantor. This point was fully considered, and so held by this court, in Moore v. Wood, supra.

The distinction as to the rights of precedent and subsequent creditors seems to be this: if the grantor reserves no future use or benefit in the property, then the sale can be attacked only by a preexisting creditor; but where the conveyance is merely colorable, and a secret trust and confidence exist for the benefit of the grantor, then the sale is void, both as to precedent and subsequent creditors. Jones et al. v. King et al. 86 Ill. 225.

It can serve no useful purpose to discuss the evidence in this case, at large. Very much of it is incompetent, and consists largely of declarations of Charles Gordon, after the conveyance, about immaterial matters, and none of which were admissible in evidence against appellee, except for the purpose of impeaching Gordon as his witness, and for that purpose only where his testimony related to matters material to the issue, and not then unless his attention had been called to the time, place, and persons to whom he had made his supposed declarations, which in most instances was omitted to be done.

Charles Gordon testified that he was sixty-nine years of age; and a widower;' that he had a difference with his late housekeeper about her wages, and about a claim she was making against him for money she claimed to have expended for him whilst he was sick; that he considered the claim exorbitant, and wished to avoid its payment; that he consulted his son, the appellant William, about it, and that the latter told him, “You make over this property to me, and when it is all settled you can. take it back, ” and that he then said to William, “Well, if you choose to take care of me, and provide me with all the necessaries'during my life, at my death you can have the property,—by so doing you can go in and live there now. He agreed to do so. Afterward we went to an attorney, and talked the thing over to him, and he (the attorney) wished to make the deed in consideration of $1000. I objected, and told him there was no money in the transaction,—that I did not want that. The attorney said,- ‘I can not make it legal without putting something in it,’ so the lawyer says, ‘We will put $500 in it.’ I allowed it, and the attorney made out the deed. * * * The property was unincumbered. The house was full of personal property,—furniture, carpets, book-cases, books, and everything connected with the house. The building and lot were worth about $2500, and the personal property about $250, in 1876. I had previously made a written acknowledgment of my indebtedness to Mrs. Martin. I owed Mrs. McGhie $150' at that time. I had no other property.” William soon after moved into the house, and claimed both the lot and personal property under this pretended purchase, and the evidence tends strongly to show that a few months afterward he committed a serious assault upon his father, and drove him from the -place. The old man (Charles) swears his son never paid him anything for the property, and that he was not owing William anything at the time. Declarations made by William, on several occasions, are proven, tending to corroborate old Mr. Gordon’s story, and inconsistent with the idea that William was a bona fide purchaser of the property for a valuable consideration; but we need not notice them particularly, as we think the testimony of William, himself, as to how, and the amount, he claims to have paid for the property, stamps the transaction as fraudulent as to existing creditors. Let it be borne in mind that there is no evidence tending to show that the real estate, and very little that the personal estate, was worth any less than the value ($2500 as to the lot, and $250 as to the personal property,) put upon-it by Charles Gordon, in his testimony. The fact that he did not remember exactly what he paid for the lot, and believed it was $600, but had put improvements upon it since, amounts to nothing without proof as to the time of purchase, whether it had risen in value since, and the value of the improvements placed upon it. Had it been worth no more than about the sum appellant William claims to have been paid for it, we have no doubt he could and would have found plenty of witnesses in Chicago acquainted with the value of this property, to have proved it.

In their answer appellants claim the sum of $997.67 to have been paid in cash for the property. This shows, if true, that for a sale between father and son, they were particular as to the exact amount, else the son might perhaps have been induced to pay $2.33 more, so as to have made it an even $1000. They were evidently not so careful to ascertain the exact value of the personal property, for they seem to have made no inventory of that, or made even an estimate as to its worth, for the father puts it at $250, and the son at $60. But if the amount paid was $997.67, it was but a trifle over one-third its actual value. When, however, we turn to the .testimony of William, we find he there claims to have paid only $500, or less than one-fifth its value. He says: “I paid Charles Gordon $500 cash for the conveyance of the property in controversy to me,—$190 of it was money I loaned him in 1865, $90 was money I let him have in 1870, and when I bought the place I paid him $220 more.” It will be observed that this $190 had been standing eight, years prior to the conveyance, and, prima facie, was barred by the Statute of Limitations. But aside from that, even if we admit that the son bought the property and paid the $500 for it, as he claims, the consideration is so flagrantly inadequate that such a transaction between father an.d. son will, as to existing creditors, be declared fraudulent, without other proof. But this payment is not only denied by Charles Gordon, absolutely, but there is considerable other evidence in the case tending to show that William could not have had the money, either at the time the deed was made, or in 1865 or 1870, when he claims to have loaned him the $190 and the $90. The peculiar and unusual circumstances under which he claims to have paid this $220, look, to say the least, very suspicious. Instead of waiting until the deed was made out by the notary, and then paying it, he says he had a previous- arrangement -with his father to meet him in the back room of a saloon in Chicago, and pay him there. He says: “I gave him $220 the day the deed was made out, in the rear room of a saloon run by a man of the name of Slater, on Randolph street. * * * We.went in there to talk the matter over before we went to the notary’s office. He came there by agreement to meet me that morning at a certain time; He came to my house the night before, and agreed to meet me at this place, and from there went to the notary’s.office. I paid him the $220 then, in the saloon, in bills. I got the money from my house.” Why not have waited till the deed was made out before making the payment ? But if it was to be paid before, why not have paid it at his own house, when his father was there, the evening before ? It is most strange that they should have made an agreement to meet in the back room of this saloon to pay the money over, instead of at the notary’s office, where they both knew they had to go to have the deed- made out. Charles Gordon not only denies all this, but denies ever having been in the saloon. -As a further indication that it was not a purchase by William, but a mere contrivance to get the title in his name without any real bargain or consideration being paid, William says, in his testimony: “I had a .talk with father of what the consideration of the conveyance by him to me was. He stated it was $500. He counted up these payments, moneys I had loaned him at different times, and before we went to the notary’s office, and he told me it was $500.”

It is claimed that the original bill ought not to be maintained, because, as appellants claim, Charles Gordon did not owe Mrs. McGhie the $150, part of the alleged consideration of the $2000 note, prior to the conveyance being made. -Both Mrs. McGhie and Charles Gordon swear he did owe it to her before that time, and we can not say that appellants have so discredited them that we should disbelieve their testimony; besides, as we have attempted to show, in the attitude this case presents it is not material whether the indebtedness for which the note was given was contracted before or after the conveyance.

Appellants’ counsel complains that the court should have found that the balance of the consideration of the $2000 note was for board, clothing, medicine, and small sums of money loaned to Charles Gordon by Mrs. McGhie, and claims there is no evidence to sustain that finding. In this he is in error, arising from an omission, we presume by the person who made the abstract of complainant’s evidence, for we find, on examination of the record, that Mrs. McGhie says that the balance of the indebtedness included in this note “was for board, clothes and medicine, and for cash advanced from 1877 down to the date of this note.”

There is no force in the objection that appellee did not pay Mrs. McGliie the face value of the note. Had she given it to him, it could not affect his rights to pursue the same remedies for its collection that she could have' done. We see nothing in the evidence reflecting upon his private or professional character in this transaction.

The fact that appellee’s bill was sworn to, is urged as a reason why the court erred in allowing it to be amended. Swearing to the bill in this case was wholly unnecessary. It was not a bill for an injunction, in which proceeding it is sworn to that it may be used not only as a bill, but also as an affidavit- in procuring, as well as on motion to dissolve, the injunction. Not being required in this case, it was to be disregarded for any purpose.

It is, perhaps, proper to say that none of our limitation laws could have been successfully invoked in this ease, even if set up by plea or answer, from the fact that the shortest time (seven years) creating a limitation for the protection of parties in possession of real estate had not elapsed between the time of the making of the deed to Willi.am Gordon and the commencement of this suit to set it aside; ■ and, besides, there was wanting an essential element necessary to make that statute available, to-wit, good faith in the making of the deed.

Charles Gordon swears the deed was never delivered by him to William Gordon; but as that is not material in the view we take of the case, wé have treated it as having been delivered. We reach the conclusion, therefore, that appellee is entitled to have the conveyance from Charles Gordon to William Gordon of the real and personal property set aside, by reason of the matters alleged in the original bill, as amended, and which the evidence sustains; and as the relief sought by the supplemental bill is the same, it is unnecessary to discuss the question raised as to the right to file it, or the equities presented by it. The deed to William Gordon being set, aside, the cross-bill of appellants, based upon their supposed interest in the premises arising from such conveyance, can not be maintained.

The decree of the court below must be affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Craig

license: Public Domain

text:
    Alvin Kidder v. G. A. Vandersloot.

      Filed at Ottawa May 15, 1885.

    1. Allegations and proofs—in chancery. The rule in equity is, that the proofs must correspond with the allegations of the bill,- and be responsive thereto. But a variance not substantial will not be fatal.
    2. So where a party, to secure a loan of $2500, conveyed to the lender eighty acres of land as a security, taking back a written agreement for a reconveyance on payment of the principal, and $270 for each year of the credit given, but it was alleged in the bill to foreclose that the mortgagor was to pay $250 a year as rent for the land, and the taxes thereon, and it appeared that $20 of the yearly payment was for the payment of the taxes, and $250 for interest, it was held, that there was no substantial variance.
    3. Parol evidence—to change terms of written agreement. The general rule that parol evidence is not admissible to change the terms of a written contract, has its exceptions, as, in respect to the consideration expressed in notes and conveyances. Such evidence is also admissible where usury is pleaded, regardless of the form the transaction may have in the writings executed by the parties.

      4. Usury—agreement to pay taxes on land mortgaged, in addition to interest. A person borrowed $2500 on several years’ time, and to secure its payment, with interest, conveyed to the lender eighty acres of land, taking back a written contract for a reconveyance on payment of the principal and ten per cent interest annually, that rate being the highest then allowed by law to be contracted for, with $20 yearly for taxes on the land, making $270 annually, and the proof showed that only $250 was in fact paid as interest, and that on payment of that sum, and producing a receipt for the taxes of such year, he was credited with $270. It was held, the transaction was not usurious, and that the $20 was but a guaranty for the payment of the taxes, which were chargeable against the mortgagee by reason of the legal title being in him.

      Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Knox county; the Hon. Arthur A. Smith, Judge, presiding.
    Messrs. Jack & Moore, for the appellant:
    Parol evidence was not admissible to explain the contract, and show that the interest was in fact but $250 per year, and the other $20 as a security for the payment of the taxes. This court has often held that an absolute, written promise can not be shown by parol to be contingent. Fay v. Blackstone, 31 Ill. 538; Walker v. Crawford, 56 id. 444; Andrews v. Mann, 92 id. 40.
    A contract can not rest partly in writing and partly in parol. Fire Ins. Co. v. Webster, 69 Ill. 392; Snyder v. Griswold, 37 id. 216.
    The result is, that the borrower had agreed to pay $270 per annum for the use of $2500 loaned to him for five years, which was about eleven per cent per annum. Thus it will be seen the transaction was usurious.
    Messrs. Winter & Prince, for the appellee:
    In determining the question of usury, the intention of the parties should govern, without regard to the form of the contract. Cooper v. Nook, 27 Ill. 301.
    The instrument was offered in defence by appellant, and relied upon as proof of usury, in connection with the receipts. We explained, as we had the right to do, the real consideration of the contract, and the actual amount of money received .under it. We prayed for general and specific relief. The scope of our bill warranted, under the general and specific prayer for relief, the' decree found by the court. Curyea v. Berry, 84 Ill. 600; Stanley v. Valentine, 79 id. 544.
    Parol evidence is always admissible to show what was the real consideration of a written instrument. Morris v. Tillson, 81 Ill. 607; Huebsch v. Scheel, id. 281; Wolf v. Fletemeyer, 83 id. 418; Primm v. Legg, 67 id. 500.
   Mr. Justice Craig

delivered the opinion of the Court:

On the 6th day of March, 1874, George Kidder borrowed of G. A. Vandersloot $2500. To secure the payment of the money, Kidder conveyed to Vandersloot a certain tract of land, consisting of eighty acres, in Knox county. At the same time Vandersloot gave Kidder a contract, in writing, by the terms of which he agreed to convey the land to Kidder providing the latter paid $2500 March 6, 1879, $270 March 6, 1875, and the same amount on March 6, 1876, 1877, 1878 and 1879. Vandersloot treated the deed and the contract as a mortgage, and Kidder, the mortgagor, having died, this bill was brought, against the heirs of Kidder, to foreclose the mortgage. In the answer, the defendants set up as a defence, usury, and payment. But the court, on the hearing, upon the pleadings and evidence, rendered a decree for the amount claimed in the bill. Alvin Kidder, one of the defendants, appealed.

In the bill the complainant alleged the execution and delivery of the deed from Kidder to himself, and averred that the deed was a mortgage; that a contract was executed at the same time, and as a part of the same transaction, by which Kidder, the mortgagor, agreed to pay $250 annually, as rent. When the contract was produced on the trial of the cause, it provided for the payment of $270, and not $250, as alleged, and it is contended that there was a fatal variance between the bill and the evidence. The practice in causes in equity is well settled that the proofs must be responsive to the allegations in the bill. But while we fully recognize and adhere to the general rule, we do not regard the variance here, as to the amount, a material one. (See Breckenridge v. Ostrom, 79 Ill. 71.) Besides, the allegation was not merely that $250 was to be paid, but it was that $250 was to be paid and also that Kidder further agreed to pay the taxes on the land. Now, while the written contract, on its face, shows that $270 was to be paid annually, it turns out, from the evidence, that $20 of this amount was to cover the taxes on the land, and the balance ($250) was to be paid as interest for the money loaned. The substance of the transaction.was, as alleged in the bill, that Kidder was to pay $250 annually, and the taxes, and when due consideration is. given to all the evidence bearing on the question, we can not say that there was a substantial variance between the allegations and proofs.

It is also urged that the court erred in admitting parol evidence to change or vary the terms of the written contract, which provided for the annual payment of $270. The general rule is, as claimed, that parol evidence is not admissible to change the terms of a written contract. But this rule has its exceptions. A promissory note, which is a written contract, may upon its face show a valid consideration for the promise to pay money, and yet parol evidence ds admissible to show a want of consideration. Parol evidence may be admitted to prove the consideration of a deed different from that expressed in the instrument. Other examples might be given where the general rule may be varied, but it is unnecessary. Here usury was pleaded, and parol evidence has always been allowed in such cases, regardless of the form the transaction may assume in the Writings executed by the parties.

It is also claimed that the court erred in not finding the transaction usurious. The amount loaned was $2500. At the time of the loan ten per cent, where the parties agreed upon that amount, was a legal rate of interest. The com-' plainant had the right, therefore, to contract for and receive $250 interest, annually, on the loan.

But it is insisted that the agreement which complainant’ delivered to Kidder provided for the payment of $270 annually, and that this contract rendered the transaction usurious. It was not proven that more than $250 annually, was ever actually paid. On the other hand, the proof is positive that at the end of the second year only $250 was paid as the interest for that year, and as to the other two years in which the interest was paid, the evidence preponderates in favor of that amount, and no more, having been paid. George H. Littlewood was present when the contract was made between complainant and Kidder for the loan, and drew the papers for the parties. He testified that the money was loaned at ten per cent, and that was all that was to be paid as interest,— that the $20 was added for the taxes on the land each year. The land had been conveyed to complainant, and he held the legal title, and would be liable, of course, for the taxes, unless Kidder saw proper to pay them. . In order to guard against .loss on this account the taxes on the land were estimated at X $20 each year, and this amount Kidder agreed to pay. The agreement was merely this : Kidder agreed to pay ten .per cent interest on the money loaned,— amounting to $250,— and also agreed to pay the taxes annually assessed on the land. Suppose, in lieu of giving a deed and taking a contract for a reconveyance, Kidder had given a note, and mortgage on the land to secure it, and in the note and mortgage agreed to pay $250 annually, as interest, and also all taxes on the land, estimated at $20, such a contract would not be regarded usurious,—and there is no difference in principle between the case supposed and the facts presented by this record. The $20 -was inserted in the contract as a guaranty that the taxes would be paid, and when Kidder produced satisfactory evidence that the taxes had been paid, and paid the $250 due as interest, the $270 was receipted on-the contract. The fact that the interest to be jiaid each year was only $250, was proven by a number of witnesses who had talked with Kidder in his lifetime, and he admitted to them that he had borrowed from.complainant $2500, and was paying that amount of interest, and that he owned the land, and had to pay the taxes each year, amounting to some $20.

We think the transaction free from usury, and the decision of the Appellate Court will be affirmed.

Decree affirmed.


author: Mr, Chief Justice Scholfield

text:
    C. P. Dutton v. The City of Aurora et al.

      Filed at Ottawa May 15, 1885.

      1. Water works in cities and villages—powers in respect to their construction, etc.—act of 1873, in its application to cities acting under special charters. The act entitled “An act authorizing cities, incorporated towns and villages to construct and maintain water works, ” approved and in force April 15, 1873;i applies to all cities, whether incorporated under special charters or under the general law, except in cities, towns or villages in which water works were at its passage managed and controlled by a board of public works.
    2. The first section of that act, in giving cities, towns, etc., power to provide for a supply of water by the erection, construction and maintenance of a system of water works, leaves the municipal authorities unrestricted as to the character and cost or the means whereby the supply of water shall be provided, and authorizes them to borrow money to the extent needed to make the contemplated improvement, and to this extent operates as a repeal of all limitations in their charters on their power of contracting indebtedness and borrowing money on bonds to be issued by them.
    3. Implied municipal powers—in aid of express powers. An express grant of power to a municipal corporation, or other person, to do a given thing, carries with it, by implication, authority to use the necessary means by which it can be done. So the' power to borrow money for a proposed public improvement by an incorporated city, gives, as a necessary incident, the power to issue its bonds for the money.
    4. Municipal indebtedness—limitations as to power of contracting. A limitation in a special city charter as to the rate of taxation is binding only upon the municipal authorities, and not upon the General Assembly; but section 12, of article 9, of the constitution, which prohibits the incurring of corporate debts exceeding five per cent on the value of the taxable property of the municipality, is equally binding on the legislature.
    5. Repeal oe statutes—by implication. Where the provisions of a former and a later statute are inconsistent and repugnant in respect to the same subject matter, the later statute is a repeal of the former to the extent of the inconsistency or repugnancy.
    6. So where a city, by its special charter, is limited in borrowing money to a sum not exceeding $5000 in any one year, for which it may issue its bonds, but a subsequent general law gives all incorporated cities, etc., power to construct water works, without limit -as to the cost, and to borrow money for such purpose on its bonds, the general law will operate to repeal the provisions in the charter only in respect to indebtedness and borrowing of money for constructing and maintaining a system of water works, leaving the limitations in the charter in force as to the contracting of indebtedness for other purposes.
    7. Construction of statutes—the naming of particular things as excluding all others. The introduction of an exception as to the operation of a general statute is necessarily exclusive of all other independent extrinsic exceptions.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Kane county; the Hon. Charles Kellum, Judge, presiding.
    Mr. R. N. Botsford, for the appellant:
    The city, by its charter, is authorized to borrow money not exceeding $5000 in any one year. But it is claimed that the act of April 15,1873, (Gen. Law, chap. 24, sec. 230,) enlarged the powers of the city. Corporate powers are strictly construed, and all doubts are resolved against them. 1 Dillon on Mun. Corp. sec. 55; Mintern v. Larned, 23 How. 435; Schott v. People, 89 Ill. 195; Mix v. Ross, 57 id. 121; Pitzman v. Village of Freeburg, 92 id. 111; Zanone v. Mound City, 103 id. 552; Webster v. People, 98 id. 343.
    It can not be claimed ■ that the limitation in the charter is repealed by implication. There is nothing in the general act indicating any intention to interfere with the provisions of special charters. People v. Cooper, 83 Ill. 595; Edwards v. People, 88 id. 340; Town of Sparland v. Barnes, 98 id. 595.
    The policy of the legislature, since the new constitution, has been to change existing special charters only with the consent of the people affected thereby. People v. Cooper, 83 Ill. 590.
    If the people want the power to make the proposed improvement, the remedy is by adopting the general Incorporation act. Binkert v. Jansen, 94 Ill. 283.
    The power to create a municipal liability can not be deduced from considerations of inconvenience. Hill v. Chicago, 60 Ill. 91.

      The presumption would be that the general law was intended to apply to such corporations, or cities organized under special charters, as were endowed by the provisions of such charters with the legal capacity to embrace and accept its benefits. Pitzman v. Village of Freeburg, 92 Ill. 111.
    Mr. Charles Wheaton, and Mr. Charles L. Allen, for the appellees:
    If it was the intention of the legislature, in passing the act of 1873, to enlarge appellees’ powers to borrow money for constructing water works, then that intention is untrammeled. The restricting clause in the city charter restricts the city only, and so far as restricting the. legislature’s future acts is concerned, has no more effect than if it had never been passed. United States v. New Orleans, 98 U. S. 397.
    No question of repeal is involved. A repealed law, except as to transactions passed and closed, must be considered as if it had never existed. Canal Co. v. City of Chicago, 14 Ill. 334.
    Though the act of 1873 does enlarge the power of the city to borrow money for water works, yet for all other purposes the limiting clause in the charter is in force. If any force is given to the second section of the act, conferring power to borrow money, it must apply directly to cities under special charters, who do not have that power, and the court must construe this so as to give effect to all its parts. Thompson v. Bulson, 78 Ill. 277; Davis v. Haydon, 3 Scam. 35; Perry County v. Jefferson County, 94 Ill. 214.
    To such cities, section 2 of the Water Works act is surplusage, and only when applied to cities under special charters does it become effective. Hurd’s Stat. 1883, p. 238, secs. 169, 171.
    Increase or restriction of the revenue power of a city organized under special charter can, since 1870, only be effected by a general law. Spring v. Olney, 78 Ill. 101; People v. Cooper, 83 id. 585.

      Where express power to perforin a public work is conferred on a city, all authorities are generally settled that reasonable power to carry on the same is implied. Mills v. Gleason, 11 Wis. 510; Williamsport v. Commonwealth, 84 Pa. St. 487; United States v. New Orleans, 98 U. S. 381. A fortiori, where express power to borrow money is given, it should be held to mean, to a reasonable amount, equal to the work to be done.
    Legislation on the same subject matter by the same legislature shows an intent of the legislature to enlarge the city’s power; and it is the duty and right of the court to seek the intention of an act, when not perfectly clear, in other acts on the same subject matter,- or in affinity with it. Stribling v. Prettyman, 57 Ill. 371; 1 Blackstone’s Com. *60, note.
    The act of March 17, 1874, entitled “An act to provide for laying water supply-pipes, by bonds and special assessment, payable in installments,” which refers to the same subject matter, and was passed by the same assembly that passed the act of April 15, 1873, provides for the issuance of bonds upon the estimated cost of laying water supply-pipes, not to exceed the statutory, charter or constitutional limitation of indebtedness of the city. When the legislature authorized the city of Aurora, in common with other cities and towns, to construct and maintain a system of water works, such authority, by implication, carried with it the power to adopt the ordinary means employed by such bodies to raise funds for that purpose. United States v. New Orleans, 98 U. S. 381; Lowell v. Boston, 111 Mass. 460; Commonweath v. Commissioners of Alleghany Co. 37 Pa. 277; Hasbrouck v. Milwaukee, 25 Wis. 122; Hitchcock v. Galveston, 96 U. S. 341; Williamsport v. Commonwealth, 84 Pa. St. 487; Le Cauteuex v. Buffalo, 33 N. Y. 333.
    As to the powers of municipal corporations to borrow money and issue bonds to enable them to carry out the powers conferred upon them by the legislature, see Dillon on Mun. Corp. (3d ed.) secs. 117, 127,129 ; Meyer v. Muscatine, 1 Wall. 384; Mitchell v. Bruling, 4 id. 270; Rogers v. Burlington, 3 id. 654; Commonwealth v. Pittsburg, 84 Pa. St. 496.
   Mr, Chief Justice Scholfield

delivered the opinion of the Court:

This was a hill in equity, by a tax-payer of the city of Aurora, to enjoin the corporate authorities of that-city from issuing its bonds to the amount of $100,000,.for the purpose of erecting and maintaining a system of water works. The grounds upon which the injunction is prayed are, first, that the city is prohibited from borrowing money exceeding $5000 in any one year; and second, that the ordinance authorizing the issue of the bonds provides that an annual tax of three mills on the dollar shall be levied for the payment of principal and interest on the borrowed money, while section 1 of chapter 2 of an amendment to the original charter of the city of Aurora, approved February 16, 1861, provides,- “the common council shall have the power to levy and collect taxes upon the real and personal property within the limits of said city, not exceeding one and one-half per cent upon the assessed value thereof, to pay the general contingent and other expenses of said city;” and if an additional tax of three mills on the dollar, should be levied- with the tax levy of 1883, it would have resulted in a levy of more than one and one-half percent upon the assessed value of the real and personal property for that year. It was stipulated between the parties, on the hearing, that an additional tax of three mills on the dollar, in 1883, would have made a levy exceeding one and one-half per cent upon the assessed value of the real and personal property for that year, The court below, on final hearing, decreed that the bill be dismissed.

Subdivision 37, of section 4, of chapter 4, of the special charter under which the city of Aurora is incorporated, provides that the city authorities shall have power “to borrow money, on the credit of the city, not exceeding $5000 in any one year, and pledge the revenues of the city for its payment, and issue bonds therefor. ” And if this is the only authority for issuing the bonds, it is very clear the ordinance is illegal, because in excess of any authority conferred upon the city council, and the court erred in' dismissing the bill. This question turns upon whether an act entitled “An act authorizing cities, incorporated towns and villages to construct and maintain water works, approved and in force April 15, 1873, ” applies to cities incorporated under special charters, or only to cities incorporated under the general law. We think it applies to cities incorporated under special charters, as well as to those incorporated under the general law, for these reasons:

First—The language of the act is as broad and comprehensive in its terms as it is possible to make it. It is, that “all cities, incorporated. towns and villages in this State, be and are hereby authorized, ” etc.

Second—If the act shall be held to apply only to cities, etc., incorporated under the general law, the second section is entirely superfluous, (which is never to be assumed,) since precisely the same powers are conferred upon those cities by section 1, article 10, of the general law in relation to “Cities, Villages and Towns.” Rev. Stat. 1874, p. 240.

Third—The seventh section of the act is in these words: “The provisions of this act shall not apply to cities, towns or villages, in which water works are now managed or controlled by a board pf public works. ” If it had been intended to limit it to cities incorporated under the general law, here would have been the proper place to state it. By this exception the act shall not apply to cities, etc., in which water works are now managed or controlled by a board of public works, necessarily, by the language employed, whether such cities are incorporated under special charters or under the general law, and, by implication, declaring that it does apply to all other cities, whether incorporated under special charters or under the general law. “The introduction of the exemption is necessarily exclusive of all other independent, extrinsic exceptions.” Potter’s Dwarris on Statutes, 221.

Fourth—The title to the act indicates that it is a general law, “applicable to all cities,” etc., in the State, and does not profess that it is an amendment or supplement to the general law.

The first section of this act empowers “all cities * * * in this State * * * to provide for a supply of water for the purposes of fire protection and for the use of the inhabitants of such cities, * * * by the erection, construction and maintaining of a system of water works.” The second section provides that “such cities, incorporated towns and villages may borrow money and levy and collect a general tax, in the same manner as other municipal taxes may be levied and collected, for the erection, construction and maintaining of such water works, and appropriate money for the same. ” The language leaves the municipal authorities unrestricted as to the character and cost of the means whereby the supply of water shall' be provided, and authorizes them to borrow money, etc., for that purpose,—i. e., to the extent that it shall be necessary in order to make the contemplated improvement. The propositions are so fundamental and familiar that it is not deemed necessary to cite authorities to prove that where authority is given to do a thing, it carries with it, by implication, authority to -use the necessary means by which it can be done; and that where the provisions of a former and a later statute are inconsistent and repugnant in respect of the same subject matter, the latter is a repeal of the former to the extent of the inconsistency or repugnancy. There was no necessity for a repealing clause in this general law, because provisions in special charters otherwise limiting the power to borrow money, levy taxes, etc., were not intended to be affected, but in all other instances of the contracting of indebtedness it was intended they should remain in force, just as they then were. Having the power to contract the indebtedness, and to issue the bonds to an amount deemed necessary to produce the desired supply of water, the limitation in the special charter does not affect it. Having power to borrow money, the power to issue bonds therefor results as a necessary incident, and the circuit court properly refused to enjoin the issuing of the bonds.

The ordinance providing for the levying and collecting of an annual tax for the payment of these bonds is not shown to violate the restriction in section 12, of article 9, of the oonstitution, which prohibits the incurring of debts beyond five per centum on the value of the taxable property of the municipality, and in other respects it strictly conforms to the requirements of that section. The limitation in the special city charter as to the rate of taxation, is a limitation upon the municipal authority, and not upon-the General Assembly, as is the constitutional limitation referred to; and so when the General Assembly authorized the incurring of a debt, to meet the annual interest upon which would require a greater levy than the amount specified in the special charter as the limit, the law authorizing the incurring of the debt is to be regarded as, to that extent, a repeal of the limitation in the special city charter. We regard, moreover, the act entitled “An act in relation to the levy and collection of taxes for sewerage and water works in cities of this State that may have established a system of sewerage and water works for such city, and to repeal an act therein named, and to authorize the cities, villages and incorporated towns of this State to levy and collect taxes to pay for water and light, ” approved and in force June 21, 1883, (Laws of 1883, page 68,) as conclusive as against any doubt that otherwise might have remained in this respect.

The judgment is affirmed.

Judgment affirmed.


author: Per Curiam:

text:
    David Norton et al. v. Timothy Moshier.

      Filed at Ottawa May 15, 1885.

    Res judicata—in the Supreme Court—reviewing the same matters on-a second appeal. Where this court passes upon the equities of a ease, reverses the decree therein, and remands the cause with special directions, the-parties can not, by the introduction of additional evidence or by filing a. cross-bill, have this court review and reconsider its former judgment. That ■ can be done only by petition for a rehearing, in the manner prescribed by the rules of this court.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Stark county; the Hon. N. M. Laws, Judge, presiding.
    Mr. H. Bigelow, for the appellants.
    Mr. Miles A. Fuller, for the appellee.
   Per Curiam:

This case has been before this court now for the third time. (See Moshier v. Norton, 83 Ill. 519, and Moshier v. Norton, 100 id. 63.) The equities between the parties were passed upon when the case was first here, and the decree below* reversed, and the cause remanded with directions to refer it to the master to state an account between the parties, in conformity with the decision of this court. The court below heard some additional evidence, and rendered a decree for complainant, based upon the new evidence,, and without regarding as settled the questions we had passed upon, complainant again brought the case here, when it was-once more fully considered, and the matters passed on before were fully reviewed, and the same conclusions reached, and the decree of the circuit court again reversed and the cause-remanded. After this, the defendant Norton filed a cross-bill, setting up the same equities presented by his answer to the original bill, and in effect asking to have the same again reviewed. Some additional testimony was taken, and the account again stated by the master, who found the amount due Moshier to be $9482.36, which report was approved by the court, and a decree rendered in his favor for that amount, and which decree was affirmed by the' Appellate Court, and both parties have taken appeals in the ease to this court.

We find no error in the ease which would authorize a reversal, and we say again as we said when the case was last before us: “We regard it as simply an effort to induce this court to reconsider its former judgment. We have neither the power nor inclination to permit that to be done in this way. It could only be done on petition for rehearing, in the manner prescribed by the rules of this court. ”

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Sheldon

text:
    Daniel H. Tolman v. Nathaniel H. Jones et al.

      Filed at Ottawa May 15, 1885.

    1. Contempt—refusal to obey order of court to deliver certain properly into the hands of a receiver—effect of mere error in the order—or where a portion of the order is void—as to duty of person so directed. Where a court of chancery has acquired jurisdiction over the property of an insolvent corporation, and of the defendant claiming the same, its order on the defendant to assign and turn over the property claimed by him, to a receiver, for its preservation, must be obeyed, however erroneous it may be; and the fact that such order may be too broad, and require the transfer of some of the property wrongfully, will not justify the defendant in refusing to obey.
    2. An error in the exercise of the jurisdiction of the court in the ordering of one of the defendants to assign and deliver to the receiver some property not belonging to the corporation, will not render the order void as to such property, and justify the defendant in refusing to obey the same. In such case the tests of jurisdiction as to the subject matter are the allegations of the bill, and not the proof under it.
    3. But even if the order of the court is void in part in requiring the surrender of property not derived from the corporation, the remedy of the defendant is to apply to the court for a modification of the order. If he fails to pursue this remedy, and refuses to obey the order, he may be committed for a contempt of court.
    4. Same—rule to show cause—whether necessary, before commitment. Where a party’s refusal to make an assignment of property to a receiver in pursuance of an order of the court, is reported to the court, and he is present when the matter is considered, and makes no objection to the proceeding, and is fully heard, by himself and counsel, in the matter, and after being ordered by the court to execute the assignment refuses to do so, the court -will be justified in making an order for his commitment for a contempt, without any rule on him to show cause to the contrary.
    5. Same—appeal from order of commitment—what it involves. On an appeal from an order of the court committing a defendant to the county jail for refusing to obey a prior order requiring hiin to assign and hand over certain property to a receiver, no error in such prior order can be considered. The only question as to such prior order that can be considered, is, whether the court had jurisdiction to make it. It matters not, so far as the question of condemnation is concerned, whether such order was made on sufficient proof or not.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.
    This cause comes before this court on an appeal from a judgment of affirmance by the Appellate Court for the First District, of an order of commitment made by the circuit court of Cook county for a contempt in refusing to assign to a receiver certain property in controversy in a suit.
    On April 9, 1884, Nathaniel H. Jones and Henry L. Ware brought their bill in chancery, in the circuit court of Cook county, against Albert E. Dike, Henry J. Dike, L. A. Dike, Warden S. Hinkler and Daniel J. Tolman, setting out that on January 29, 1884, the Garden City Warehouse Company was organized as a corporation, for the purpose of carrying on a general warehouse and storage business, the capital stock being $120,000; that the stockholders were said defendants and the complainants; that the stock of the complainants had been fully paid; that prior to the organization of the corporation the Dikes and Minkler, under the firm name of Dike Brothers & Minkler, had been engaged in the warehouse and. storage business, in the manufacture and sale of refrigerators, and in buying and selling goods and merchandise and negotiable paper; that on January 30, 1884, the firm of Dike Brothers & Minkler sold and assigned all its assets to the Garden City Warehouse Company, and that in consideration thereof the members of said firm received shares of the capital stock of the corporation, amounting, in the aggregate, to $80,000; that Albert B. and Henry J. Dike, Minkler, and'the complainants, were elected as the board of directors of the company; that the complainants had no practical knowledge of the warehouse and storage business, and that the affairs of the company were managed almost entirely by the Dikes and Minkler. The bill further shows that the Dikes and Minkler had for a long time been converting, and were then converting, to their own use the property of the company, with intent to defraud the complainants and the creditors of the company, and that to that end the Dikes and Minkler had combined and conspired with the other defendant, Tolman. It is further-shown by the bill that on February 25, 1884, the Dikes, Minkler and complainants formed a special partnership, under the firm name of Dike Brothers, Minkler & Co., for the purpose of manufacturing and selling refrigerators, and buying and selling goods and negotiable paper; that the Dikes and Minkler were the general partners, and complainants the special partners; that the business of the firm was managed by the general partners; that 'the special firm had assumed to succeed to the business of the former firm of Dike Brothers & Minkler, with the exception of the warehouse and storage business. The bill then shows that on April 7, 1884, in pursuance of the said conspiracy between the Dikes, Minkler and Tolman, the said Dikes and Hinkler executed to Tolman their judgment promissory note, dated April 5, 1884, signed by themselves, individually, and also as Dike Brothers, Hinkler & Co., for $17,500, payable on demand; that on April 7, 1884, judgment was entered upon said note by confession, in favor of Tolman, and against the Dikes and Hinkler, as general partners in the said firm of Dike Brothers, Hinkler & Co., and on the same day an execution was issued on the judgment, and levied upon a large amount of property, describing it, which property all belonged to the Garden City Warehouse Company; that there was no consideration for the giving of the note. The bill further shows.that on the said 7th day of April, 1884, in pursuance of the said conspiracy, and in the firm name of Dike Brothers, Hinkler & Co., the said Dikes and Hinkler executed to Tolman, without any good or valuable consideration, an instrument in writing, which purported to be a bill of sale of a large amount of personal property, describing it, and by a general description, all the goods, wares, merchandise, property and effects of the said firm of Dike Brothers, Hinkler & Co.; that at the time said bill of sale was made, the said firm of Dike Brothers, Hinkler & Co. did not own any property, and that all of said property belonged to the said Garden City Warehouse Company. The bill further alleged that a large number of suits had been commenced against the Garden City Warehouse Company; that the prin-. cipal part of its property had been seized, on execution or attachment ; that the corporation was insolvent, and had ceased doing business, leaving a large amount of debts unpaid; that the property levied on would be sacrificed if sold at sheriff’s sale. The bill prayed for the dissolution of the corporation, for the application of its assets to the payment of its debts, for an injunction against the officers of the corporation and the Dikes, Hinkler and Tolman, restraining them from any interference with the property aforesaid, or with any of the property of the Garden City Warehouse Company, and for ihe appointment of a receiver. An injunction was granted in accordance with the prayer of the bill, and subsequently a receiver was appointed.
    On June 16, 1884, an order was entered by the circuit court ihat defendant Tolman appear before the master in chancery •and assign and deliver over to the receiver, first, all the property transferred to or received by him under said bill of sale ; second, all the property, money, things in action, or effects, to which the firm of Dike Brothers & Hinkler have a legal title, or in which said last mentioned firm had any equitable interest on the 30th day of January, 1884, or at any time subsequent thereto, which were received by him (said Tolman) under or by virtue of said bill or bills of sale, or otherwise, from the said firm of Dike Brothers, Hinkler & Co-., and all books, papers and vouchers relating thereto, in his possession •or under his control; third, all property of the Garden City Warehouse Company in the possession or control of Tolman; and fourth, the proceeds of all the aforesaid property.
    The master summoned Tolman to appear before him, and •directed him to execute a formal assignment, drawn in the language of the order, which Tolman refused to do, assigning as a reason that the assignment was not in accordance with ihe order. The master made report. On the hearing thereupon, before the court, on September 27, 1884, the court ordered Tolman to execute the deed of assignment, which was ihen tendered him, which he refused to do, whereupon the court made the order of commitment in question, of Tolman, io the common jail of the county, for contempt of court by refusing to execute the assignment.
    Hr. Jesse Holdom, and Mr. Frank J. Smith, for the appellant :
    A proceeding for a contempt is in the nature of a criminal proceeding, and as its effect is to deprive of liberty, every step provided by law for the attainment of that result must be substantially, if not strictly, pursued, as in the case of Stuart v. People, 3 Scam. 593. A rule must be entered to show cause, giving an opportunity to answer the same. We think the court erred,, and that the order committing appellant to jail was unlawful. Buck v. Buck, 60 Ill. 105.
    The order of committal is a final order, in the sense that it may be reviewed by appeal or on writ of error. Cromartie v. Commissioners, 85 N. C. 211; Hunahausen v. United States Fire Ins. Co. 5 Heisk. 702; State v. McKinnon, 8 Oreg. 487; People v. Heady, 58 Barb. 564; Railroad Co. v. Wheeling, 13 Graft. 40; People v. Simonson, 9 Mich. 492; People v. Jones, 33 id. 303; Haines v. Haines, 35 id. 138; Blake v. Blake, 80 Ill. 512; People v. Stuart, 74 id. 63; People v. Perfinbrink, 96 id. 68; Haines v. People, 97 id. 161.
    Mr. John E. Burke, for the appellees:
    No rule was necessary—appellant waived one by appearing and making his defence. People v. Hackley, 24 N. Y. 74.
    Under the order, of June 16, appellant can be required to make a formal transfer in writing. 1 Bouvier’s Law Die. title, “Assignment;” Chipman v. Sabbaton, 7 Paige, 47; High on Receivers, sec. 446.
    That order was interlocutory, and no appeal or writ of error lies from it. 2 Daniell’s Ch. PL 1587; Beebe v. Russell, 19 How. 283; Chapman v. Hammersley, 4 Wend. 173; Coates v. Cunningham, 80 Ill. 467.
    . The court, having jurisdiction of the,parties and of the subject matter, had power to make the order of June 16; and such order, even if erroneous, must be obeyed, until the judgment of the court is reversed. People v. Sturtevant, 5 Seld. 363; Deklyn v. Davis,. Hopk. 135 ; Sullivan v. Judah, 4 Paige, 444; Wilcox v. Jackson, ,13 Pet. 511; Rhode Island v. Massachusetts, 12 id. 718; Fennings v. Humphreys, 4 Beav. 1; Walton, v. Dwelling, 61 Ill. 201; Darst v. People, 62 id. 306 ; Dickey v. Reed, 78 id. 261.
   Mr. Justice Sheldon

delivered the opinion of the Court:

Objection is taken to the manner of procedure in this case. It is said that a rule should have been entered to show cause, to which an opportunity should have been given to answer; that appellant was not allowed any opportunity to purge himself, or show any reason why he should not be punished for having refused to execute the assignment. Appellant was present in person before the court on the hearing of his refusal to make the assignment, made no objection to then proceeding therewith, and was fully heard, by himself and counsel, in the matter, and after such hearing he was ordered by the court to execute the assignment, and refused so to do. This was a contempt committed in the face of the court, and the court was justified in making the order of commitment without the taking of any of the preliminary steps which it is suggested should have been taken.

As appellant had, by his answer under oath, denied all the charges of fraud and conspiracy, and stated that the confession of judgment was for a bona fide debt due, and that the bill of sale was executed to secure the same debt, and as the hearing on which the order of June 16, 1884, for the assignment was made, was upon the sworn bill and the sworn answer of appellant, read as an affidavit, without any other-evidence, it is insisted that upon such showing only there was no warrant for making an order taking ■ the property transferred by the bill of sale, out of the hands of appellant, and handing it over to a receiver. No such objection as this can now be taken to that order of June 16. That was but an interlocutory order, made in the progress of the cause, for the preservation and holding of the property during the litigation, and is not the subject of appeal. (Coates v. Cunningham, 80 Ill. 467; Chapman v. Hammersley, 4 Wend. 173; Forgay v. Conrad, 6 How. 201.) No mere error in that order, as is that complained of as above, can now be considered, but only whether there was jurisdiction in the court to make the order. The appeal is from the order of commitment of September 27, 1884, and not from the order of June 16, 1884, for the making of the assignment.

But, then, it is said, that conceding that it was equitable, and within the scope of the bill, to enter an order upon the motion made, yet the order entered, of June 16, is broader than the-facts of the ease, the allegations of the bill, or the disclosures made by any of the papers on file, warranted the court in making;' that no allegation of the bill gave the court jurisdiction to make the order of June 16, and therefore the court had no jurisdiction of the property ordered to be turned over by appellant to the receiver. The respect in which the order is alleged to be too broad is in the language of the second provision, “or otherwise, from said firm of Dike Brothers, Minkler & Co., ” thus requiring appellant not only to assign all the property which he had received under the bill of sale mentioned iú the bill, but all the property he had received otherwise from the firm of Dike Brothers, Minkler & Co. It was not the purpose of the bill to interfere with the firm of Dike Brothers, Minkler & Co., and lay hold of any property belonging to it, but only to reach property of the corporation; and the charge against appellant was, that he had fraudulently received, under the bill of sale made by Dike Brothers, Minkler & Go. to him, property belonging to the corporation; and if it be the true construction of the order that it required the assignment of other property than property of the corporation, or property alleged as belonging to it, then the order, in that respect, would be too broad, and wrong. But it does not follow that appellant would be justified in disobeying the order for that reason. That would depend upon whether or not the court had jurisdiction. The principle is of universal force that the order or judgment of a court having jurisdiction, is to be obeyed, no matter how clearly it may be erroneous. (People v. Sturtevant, 5 Seld. 263; Sullivan v. Judah, 4 Paige, 444; Fennings v. Humphrey, 4 Beav. 1; Chuck v. Cremer, 2 Phill. Ch. 112; Richards v. West, 2 Green’s Ch. 456; 2 Barb. Ch. 274.) This has often been held in reference to disobedience to injunctions, as in the eases above, and the principles which govern cases of ■contempt for a violation of an injunction order are applicable here.

There was, here, jurisdiction over the parties. The court had power to dissolve the corporation, to grant the injunction prayed for, to appoint a receiver and to place the property of the corporation in the hands of the receiver. The ■order of June 16 was made in the exercise of that power, :and if the order embraces property not shown by the bill to belong to the Garden City Warehouse Company, this would :seem to be but an error in the exercise of jurisdiction. If it had been made to appear to the court that appellant had in his possession property of the corporation received from Dike Brothers, Hinkler & Co., other than that received under the bill of sale mentioned, we think the court might then properly have required such property to be turned over to the receiver, although there was no allegation in the bill of the receipt of the property. If that be so, it must be allowed that the court had jurisdiction of the subject matter, and that the error in the order was in its not being sustained by proof to the extent it was made. The test of jurisdiction would be the allegations of the bill,—not the proof made under it.

The order of June 16, at the most, was not wholly void, but •only in the particular wherein it is complained of as being too broad. Appellant’s proper remedy would have been an application to the court to modify the order in that respect. There was no such application. There was no such objection made to the order. The objection, before the master, to executing the assignment ^prepared, was, that it did not conform to the ■order of June 16. Before the court there does not appear to have been any reason given for refusing to execute the assignment. There was no offer or willingness ever expressed to execute any assignment to the extent it is not objected to, as being to broad.

We are of - opinion the judgment of the Appellate Court should be affirmed. . ,

T , . , Judgment affirmed.