author: Mr. Justice Scholfield

text:
    Caroline W. Benneson et al. v. William T. Savage et al.

      Filed at Springfield

      October 31, 1889.

    1. Pleading and evidence—in chancery—instrument sued on made a part of the bill—as controlling the pleading. On bill to foreclose a trust deed, a variance between the contract described in the bill and that in the trust deed securing the same is unimportant, when the contract and trust deed are made part of the bill as exhibits. In such case, the court will give the contract and trust deed the legal effect to which they may be entitled, even though that may have been misconceived by the pleader.
    2. A bill in chancery to foreclose a trust deed recited that the interest on the principal note secured by the trust deed should be paid “according to interest coupons thereto annexed.” The coupons were made a part of the bill as exhibits: Held, that the coupons must be read to ascertain their precise terms, and if it was thereby shown that the coupons described in the bill and those described in the deed of trust were the same, there will be no variance.
    3. Suretyship—extension of time—release. A mortgage or deed of trust of a third party, given as a security for a note of the principal debtor, recited that it was provided in the note that the holder thereof might extend the time for the payment of the whole or any part thereof, on the maker executing coupons for interest to accrue thereon during such extension: Held, that an extension of the time of payment of the note by the holder upon the maker giving such coupons, did not release the mortgage security.
    4. Same—faiUire of holder of debt to satisfy the same by a purchase of land from the“principal debtor. The holder of a note secured by the mortgage of a third person, bought lands of the principal debtor, giving a note therefor in a sum greater than that so secured. These lands were attached for the debt of the vendor, and the sale was declared fraudulent and void: Held, on bill to foreclose the mortgage, that the holder of the note so secured could not be charged with the value of these lands, which were taken in payment of his grantor’s debts.
    5. Interest coupons-—on extension of time—rate of interest—and whether the coupons are within the power given. A mortgage given to secure the debt or note of another authorized the holder of the note to extend the time of payment upon the maker giving coupon notes for the interest which would accrue during the extension: Held, that authority to execute coupons necessarily implied authority to fix the rate of interest they should bear after maturity at any rate not prohibited by law, such Coupons being a part of the debt secured by the mortgage.
    6. A mortgage to secure the debt of another, evidenced by a note, and coupons for the interest, provided that the holder might extend the time of payment of the whole or any part of the debt upon the debtor giving further coupons for the interest on the time so extended. The note required that both the principal and the interest should be paid at the payee’s banking house in Quincy, Illinois, with current rate of exchange on New York. It was objected, on bill to foreclose, that the coupons omitted the words, “with the current rate of exchange on New York:” Held, that these words were not necessary for two reasons : First, because neither the deed of trust nor the note required them to be inserted in the coupons; and second, because their omission in no way tended to change or enlarge the liability of the mortgagor.
    7. Revocation of poweb—by death of donor—of a power coupled with an interest. A mortgage given by one to secure the note of another, with interest coupons, gave a power to the holder of the note and coupons to extend the time of payment on certain conditions: Held, that the death of the mortgagor did not revoke the power, as it was coupled with an interest in the creditor.
    Writ of Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of Adams county; the Hon. S. P. Shops, Judge, presiding.
    William T. Savage filed his hill in chancery, in the circuit court of Adams county, against Charles A. Savage and others, to foreclose a certain mortgage, which was in form a deed of trust. The following statement, taken from the printed argument filed by the counsel for plaintiffs in error, is a sufficiently full statement of the pleadings:
    “The case set up in the bill, in brief, is this: That on March 29, 1873, Charles A. Savage, being indebted to the banking firm of L. & <3. H. Bull in the sum of $6000, ‘made his certain contract iffiwriting’ with them for the payment of the same in three years after said date, with interest thereon, payable semi-annuhlly, at the rate of 'nine per cent per annum till due, and ten per cent thereafter, which said contract in writing, or so much of it'as remained unpaid at the time the bill was filed, consisted of a promissory note, with divers recitals and conditions therein, and two original interest coupons, Nos. 5 and 6, thereto attached; that on the same day,—March 29,1873,—• said Charles A. Savage, Blvey W. Savage and Anna Wells, to secure the said contract of indebtedness, executed the said trust deed; that afterwards said firm of L. & C. H. Bull assigned said contract of indebtedness, or, rather, the parts thereof that remained unpaid, without recourse, by their in-dorsements on the said note and two coupons, respectively; that afterwards, when said principal sum became due, exclusive of grace, March 29, 1876, William T. Savage extended the credit on the same to April 1, 1878, and attached to the said original contract four additional interest coupons, numbered 7, 8, 9 and 10, executed by the said Charles A. Savage, to cover the interest to accrue during said extension. Bach of said interest coupons—original and extension—has a forfeit or penalty clause added, that if not paid at maturity it shall bear interest from maturity at the rate of ten per cent per annum; that afterwards, in June, 1879, all of said instruments—said note, two original coupons and four extension coupons—were merged in a judgment of the circuit court of said Adams county, against said Charles A. Savage, for $8652.78, in a suit at 1'aw of said William T. Savage against said Charles A. Savage; that said William T. Savage, as holder of said contract of indebtedness, under the provisions of said trust deed, paid taxes, $344.18, and insurance, $363.50, on the premises in controversy-; that said note and interest, and said judgment, and said disbursements for taxes and insurance, and arrears of interest thereon, are due and unpaid, etc.; that Blvey W. Savage died July 19, 1873, the owner of record of the premises in said trust deed, whereby the trustees in said trust deed became ousted of their power to sell,” etc.
    The defenses set up in the answer of the plaintiffs in error to the bill, are mainly based upon the alleged facts that the property in controversy was and is the property of the plaintiffs in error, and that by virtue of the trust deed it occupied the position of a surety for the indebtedness in said trust deed described, with all the rights and immunities incident to such position. Said defenses are, in short, as follows:
    “First—That the contract of indebtedness set up in the bill, and claimed to be secured by said trust deed, is not the contract of indebtedness described in said trust deed, but another and essentially different contract of indebtedness, and therefore is not and never was secured by said trust deed.
    “Second—If said two contracts of indebtedness should be construed to be one and the same contract of indebtedness, and to be secured by said trust deed as against the plaintiffs in error, as sureties, aforesaid, in respect to their said property, then the contract of the extension of the credit, alleged in the bill, without the knowledge or consent of the plaintiffs in error, or either of them, as alleged in the answer, released and discharged said property from the lien of said trust deed.
    “ Third—If, in the opinion of the court, said premises were not released from the lien of said trust deed by said extension contract, then William T. Savage, at the time said contract of indebtedness matured, being fully informed of the utter insolvency of Charles A. Savage, the principal debtor, and having, at the same time, within his power and control a sufficient amount of the funds and assets of said Charles A. Savage to fully discharge said contract of indebtedness, and having a perfect right to so apply said funds, and failing and neglecting so to do, these circumstances, in connection with other affirmative acts of the said William T. Savage, done at the same time and shortly thereafter, indicative of bad faith towards said sureties, operated to release, and did release, said premises from the lien of said trust deed.
    “Fourth—If, in the opinion of the court, neither of the above defenses proves available, then a series of transactions between said William T. Savage and said Charles A. Savage, themselves alone or in conjunction with others, extending from April 21, 1875, to May 26, 1876, inclusive, and including said assignment, said extension and said neglect to discharge said contract of indebtedness with said Charles’ own funds, all fully set up in said answer, and all done and suffered in bad faith toward said sureties, and all done with the fraudulent design and purpose of removing, then and forever, all the property and assets said Charles had -in the world, from the reach of said sureties for the payment of the debt for which their property was bound, as aforesaid, to the great damage and injury of said sureties, had the effect, in law, to, and did, in fact, discharge said premises from the. lien of said trust deed.”
    A cross-bill was filed, which is but an amplification of the answer. It charges that none of the defendants in error has, in fact, any interest in or claim or lien upon said premises in controversy, but if either of them has any such claim, interest or lien, such claim, interest of lien is subject and subordinate to the title and rights of the plaintiffs in error therein. It asks that said trust deed be declared and decreed cancelled, and for naught held; that the trustees therein be required to^ cancel the same of record; that the title of the plaintiffs in error to the premises described in said trust deed be decreed by the courts to be superior and paramount to all and every of the claims of each and every of the defendants in error upon the same premises. The cross-bill was taken as confessed against defendants in error, Minerva Merrick, Edward Wells, Edward H. Buckley, Arathusa Woodruff, and the Board of Education of the city of Quincy, Illinois, and decree entered. Answer was filed by the other defendants thereto, putting in issue its allegations.
    The cause was he^ird on bill, exhibits, answer, cross-bill, answer and proofs, and the court decreed that the cross-bill be dismissed, and that complainant have foreclosure as prayed in and by the original bill, and that decree was affirmed on error, in the Appellate Court for the Third District. The record comes to this court by error on the judgment of the Appellate Court affirming the decree of the circuit court.
    Other facts material to an understanding of the case are stated in the opinion of the court.
    Mr. W. H. Benneson, for the plaintiffs in error :
    Property of one person pledged or mortgaged to answer for the debt of another, occupies the position of a surety, and anything which discharges a surety will discharge such pledged or mortgaged property. White v. Ault, 19 Ga. 551; Robinson v. Gee, 1 Ves. Sr. 251; Ryan v. Shawneetown, 14 Ill. 20; Hill v. Whitmer, 2 Phil. 72; Lowry v. McKinney, 68 Pa. St. 292.
    A wife who joins her husband in a mortgage of her own property to secure his debt, is a surety, and entitled to all the rights and privileges as such. Cord on Rights of Married Women, sec. 522; Neimcewicz v. Gahn, 3 Paige, 614; Hawley v. Bradford, 9 id. 200; Fitch v. Coiheal, 2 Sandf. Ch. 29; Loomer v. Wheelright, 3 id. 135 ; Vartie v. Underwood, 18 Barb. 562.
    The contract of a surety is to be strictly construed, and is not to be enlarged or extended by implication. Reynolds v. Hall, 1 Scam. 35; Field v. Rawlings, 1 Gilm. 581; Sharp v. Bedell, 5 id. 88; Waters v. Simpson, 2 id. 570; Railroad Co. v. Higgins, 58 Ill. 128; Warner v. Campbell, 26 id. 282; Mix v. Singleton, 86 id. 194; People v. Tompkins, 74 id. 482; Phillips v. Manufacturing Co. 88 id. 305; Ryan v. Shawneetown, 14 id. 20; Miller v. Stewart, 9 Wheat. 680; 5 Cond. 727; Stull v. Hance, 62 Ill. 52.
    Any material alteration in the contract made by the creditor and principal debtor, or by either with the assent of the other, without the consent of the surety, discharges the surety. Theobald on Principal and Surety, 119; Waters v. Simpson, 2 Gilm. 570; Cunningham v. Wrenn, 23 Ill. 64; Newlan v. Harrington, 24 id. 206; People v. Organ, 27 id. 27; Benedict v. Miner, 58 id. 19; Ryan v. Shawneetown, 14 id. 20; Hobbs
      v. Rue, 4 Pa. St. 348; Britton v. Dierker, 46 Mo. 591; Bank of Commerce v. McChord, 4 Dana, 191; Boatt v. Brown, 13 Ohio St. 364; Fulmer v. Leitz, 68 Pa. St. 237; Neff v. Horner, 63 id. 327; Kountz v. Hart, 17 Ind. 329; Dewey v. Reed, 40 Barb. 16; Bank of Limestone v. Penick, 2 T. B. Mon. 98; Hall v. McHenry, 19 Iowa, 521; Pahlman v. Taylor, 75 Ill. 629; Haines v. Dennett, 11 N. H. 180; Agawam Bank v. Sears, 4 Gray, 95; Whitcher v. Hall, 5 B. & C. 269.
    If the conditions upon which a surety agrees to be bound are known to the creditor, and they are not complied with, the surety is discharged. Copp v. Smith, 3 Scam. 177; Cunningham v. Wrenn, 23 Ill. 64; Strickler v. Cunningham, 58 id. 293; Burt v. McFadon, id. 479; Jones v. Keer, 30 Ga. 93; Bacon v. Chesney, 1 Stark. N. P. 192; Campbell v. French, 6 T. R. 200; Archibald on Principal and Surety, 154.
    A valid agreement between the creditor and the principal debtor, without the consent of the surety, for an extension of credit on the indebtedness, discharges the surety. Waters v. Simpson, 2 Gilm. 570; Davis v. People, 1 id. 409; Galbreath v. Fullerton, 53 Ill. 127; Ryan v. Shawneetown, 14 id. 20; Warren v. Campbell, 26 id. 282; Flyn v. Meed, 27 id. 323; Kennedy v. Evans, 31 id. 258.
    The surety has the'right, when the debt for which he is bound becomes due, to resort to equity to compel the creditor to the enforcement of the contract against the principal debtor, or he can pay the debt himself, and proceed against the principal debtor for repayment, and if deprived of either of these rights, without his consent, by the creditor, he is discharged. King v. Baldwin, 2 Johns. Ch. 554; Taylor v. Beck, 13 Ill. 376; Flynn v. Meed, 27 id. 323; Waters v. Simpson, 2 Gilm. 570.
    The contract of suretyship imports entire good faith and confidence between the parties in regard to the whole transaction; and while the creditor is not bound to take active measures to collect the debt of the principal debtor, good faith requires that he shall do no affirmative act that will operate to the prejudice of the surety, and if he does any such affirmative act, the surety will he discharged. 1 Story’s Eq. Jur. secs. 323, 325; Hobbs v. Rue, 4 Pa. St. 348; People v. White, 11 Ill. 341; Pearl v. Wellmans, id. 352; Taylor v. Beck, 13 id. 376; Moor v. Bowmaker, 3 Price, 214; 7 id. 223.
    Fraud by the creditor, in relation to the obligation of the surety, or by the principal debtor, with the knowledge or assent of the creditor, will discharge the surety. Boynton v. Robb, 22 Ill. 525; Phares v. Barbour, 49 id. 370; Kennedy v. Evans, 31 id. 258.
    A surety is entitled to the benefit of any security the creditor holds for the payment of the same debt, and if the creditor parts with it, or by his gross neglect it is lost, the surety is discharged pro tanto. Story’s Eq. Jur. sec. 326; Phares v. Barbour, 49 Ill. 370.
    When the creditor of an insolvent debtor has means of the debtor, actually or potentially, in his hands, sufficient to satisfy the debt, with no restrictions as to the application of said means, and he does not retain the same, or if he diverts the same to other purposes than the payment of the debt, the surety is discharged, at least pro tanto. Law v. East India Co. 4 Ves. 824; Wright v. Austin, 56 Barb. 13; Fegley v. McDonald, 89 Pa. St. 128; Theobald on Principal and Surety, 143.
    A bare authority to do a thing remains revocable at the will of the grantor thereof, until some act is done under it whereby the rights of others are affected; and the death of the grantor before any such act is done, per se vacates such authority. Story on Agency, secs. 463, 465; 1 Parsons on Contracts, 73-75.
    Mr. William W. Beeut, for the personal representatives of William T. Savage, deceased, defendants in error, after a consideration of the evidence, and the facts shown thereby, made the following points, among others:

      The money was borrowed, by Charles A. Savage, and with his wife’s consent expended in improving her property. If he was insolvent, as insisted, and even if her property was not formally pledged to secure the debt, a court of equity would compel satisfaction out of it. But here, the property of the wife that had been benefited by the outlay of the money borrowed by the husband, was pledged for the payment of that money in an instrument executed with all the formalities of the law. In this instrument the contract evidencing the debt, with its provisions for interest and extension of time, was set forth with exceptional particularity, and it is simply trifling to seek to distinguish between the contract signed by Charles A. Savage, promising to pay the money borrowed, and the contract set out in the deed.
    But it is not more so than the claim that the security is discharged by reason of the extension of the time of payment of the note. The trust deed makes provision for this, and not only that, but it designates exactly the manner by which this extension is to be evidenced, namely, by annexing coupons to the note.
    The coupons, except as to dates and amounts, are copies of those originally attached, as intended by the parties executing the trust deed. The note itself, and the deed of trust reciting it, both provide that the interest after the maturity of the note was to change from nine to ten per cent. With this increase of interest the coupons had nothing whatever to do. The coupons were made in accordance with the contract.
    Where a power is coupled with an interest, it is not impaired or revoked by the death of the party giving it. Story on Agency, sec. 477; Walker v. Denison, 86 Ill. 142.
    Nothing was realized from the Nebraska lands, as they were seized on attachment. A careful calculation will show that the decree was not too large.
   Mr. Justice Scholfield

delivered the opinion of the Court:

It will be most convenient to notice the several objections urged in argument against the decree of the circuit court, in their order of precedence upon the record.

First—It is objected that the contract described in the bill and that described in the trust deed are not the same, and that therefore the trust deed is not a security for the contract described in the bill. A copy of the trust deed is made part of the bill as an exhibit, and it is therefore unimportant, even if it be conceded that the pleader misconceived its legal effect, for the instrument itself being thus before us, we will give it that legal effect to which it is entitled. Allen et al. v. Woodruff et al. 96 Ill. 11.

The trust deed recites, among other things, as follows:

“Whereas, the said Charles A. Savage is justly indebted to the party of the third part in the sum of $6000, according to the tenor and effect of a certain promissory note executed by him, of even date with this deed, and payable three years after date, to the order of the said party of the third part, in the aforesaid sum of money, for value received, with interest thereon at the rate of nine per cent per annum from the date of the said note until due, and at the rate of ten per cent per annum after due, until the said principal sum is fully paid,— both principal and interest being payable at the banking house of L. & C. H. Bull, in Quincy, Illinois, with the current rate of exchange on New York. The first payment of interest on said note is to be made on the first day of October, A. D. 1873, for the period ending on that day, and thereafter the interest is to be paid semi-annually, on the first days of April and October in each year, until the last payment of interest, which is to be made for the remaining period on the day of the maturity of the said note, according to interest coupons thereto annexed ; and in and by said note it is further provided, that the holder thereof may extend the time for the payment of the whole or of any part thereof, on the maker executing coupons for interest to accrue thereon 'during such extension, at a rate not exceeding ten per cent per annum, payable at the dates named in said note for the payment of interest, such coupons to be annexed to said note, and to be evidence of such extension.”

The coupons described in the bill provide, that if they are not paid at maturity they shall bear interest after that date at the rate' of ten per cent per annum, and this, it is contended, is entirely different from the coupons in the foregoing recital. We are unable to concur in this construction of the recital. The language of the recital, it will be observed, is, that the interest shall be paid “according to interest coupons thereto annexed, ”—that is, annexed to the note or contract,— and so the coupons are themselves made a part of the recital, and must therefore be read to ascertain their precise terms. (Jones et al. v. King et al. 86 Ill. 225.) And when this is done, it is seen that the coupons described in the bill and the coupons described in the recital are the same coupons.

Second—It is next objected that the mortgage was released by reason of the extension of the time of the payment of the debt without the consent of the mortgagors, Elvey W. Savage and Anna Wells, who were the real owners of the mortgaged property. The mortgage expressly recites, as was seen supra, that it is provided in the note which it secures, “that the holder thereof may extend the time for the payment of the whole or of any part thereof, on the maker executing coupons for interest to accrue thereon during such extension.” But it is contended, first, that this does not warrant an extension of time without the consent of the sureties; and second, that the extension was not made in accordance with the terms of the deed.

1st. Counsel insist that the mortgagors do not, by this, do any more than consent to the continuance of the mortgage in the event they shall themselves hereafter consent to an extension of the contract. But that, as has been seen, is not the purport of the language employed, and, plainly, it is not within its reasonable contemplation. The mortgagors consent that the holder of the note may extend the time for its payment upon the maker executing and annexing to the notes coupons for interest,—that is, they consent, if that shall be done, the mortgage shall continue,—for there is nothing else to which their consent can have effective application; and this is put beyond reasonable doubt by the condition of defeasance, wherein it is recited:

“Now, if the said Charles A. Savage, his heirs, executors or administrators, shall well and truly pay, or cause to he paid, unto the said party of the third part, or to the legal holder of the said promissory note, the principal sum therein mentioned, with "the interest to accrue thereon, •* * * ór as the said principal or interest may become payable by virtue of any extension of time for the payment of said note, which may be made as therein provided, and of the interest coupons to be in that case thereto annexed, * * * then and in that case this deed shall become and be void, and the property hereby conveyed shall be released at the proper cost and charge of the said party of the first part, and their legal representatives. But if the said Charles A. Savage, his heirs, executors or administrators, shall fail to pay, or cause to be paid, to the said party of the third part, or to the legal holder of the said note, any of the principal sum payable thereby, or any installment of interest thereon, at the respective times when the said principal sum, or any installment of interest thereon, shall become due and payable by the tenor and effect of said note and said original interest coupons, respectively, or as the said principal, or any part thereof, or interest thereon, may become payable by virtue of any extension of time for the payment of said note, or any part thereof, which may be made as therein provided, and of the interest coupons to he in that ease thereto annexed, * * * then and in such case this deed shall remain in full force and virtue, and the said promissory note, with the interest accrued thereon, and all moneys which may have been advanced and paid by the said party of the third part, or the legal holder or holders of said note, for the purposes herein-before expressed, with the aforesaid interest thereon, shall thereupon, each and every of them, in respect to and for the purposes of the trust hereby created, become and be presently due and payable, and the said parties of the second part, or the survivor of them, or the executors or administrators of such survivor, may thereupon at once proceed to sell the property hereby conveyed.”

2d. Counsel for plaintiffs in error insist that the only discretion given to the holder of the note is to fix the rate of interest reserved, within the limits prescribed, and that providing that the coupons shall bear interest after that date at the rate of ten per cent per annum, is beyond the power conferred by the mortgage, and hence that it can not be held to secure such a contract. But the executing of a coupon is the executing of an instrument, which, ex vi termini, bears interest after maturity,—if no rate is expressed, six per cent; and at the date of executing these coupons, any rate, not exceeding ten per cent, might be fixed by agreement of the parties. (Harper et al. v. Ely et al. 70 Ill. 581; Humphreys et al. v. Morton et al. 100 id. 602.) And so, under a familar rule applicable to such cases, authority to execute coupons necessarily implies authority to fix the rate of interest they shall bear after maturity, at any sum not prohibited by law; and it is held that a coupon is a part of the debt covered by the mortgage which secures its bond. Daniell on Neg. Inst. sec. 1491 a; Gilbert v. W. C. V. M., etc. R. R. Co. 33 Gratt. 599.

It is suggested that there is omitted from these coupons the words, “with the current rate of exchange on New York.” There are two plainly sufficient answers to this: First, these words are, by no language of the deed of trust or of the note which it secures, required to be inserted in the coupons. It is required that “both principal and interest” shall be paid “at the banking house of L. & C. H. Bull, in Quincy, Illinois, with the current rate of exchange on New York;” but this is the language of the note only, and it is nowhere required that such language, or any part of it, shall be embodied in the coupons. Second, the omission of this language in nowise tends to change and enlarge the burden of the mortgagors, and they can not therefore complain of it.

Third—It is further objected, that the power to extend the time of payment was a naked power, and that it was revoked by the death of Elvey W. Savage. In our opinion, this is a misapprehension of the character of the power. The trustees, it is conceded, took but a naked power. But this clause was intended to affect the substantial rights of the debtor and the creditor. As is contended by counsel for plaintiffs in error, the extension of the time of payment of the debt without the consent of the surety would operate to release the surety; and so, on like principle, here, such extension would release the mortgage. That could not concern the trustees, but it would materially injure the creditor. To prevent that,—that is, to continue, for the benefit of the creditor, the lien of the mortgage,—this power was inserted,—a power not to the trustees, but* to the debtor and creditor, to continue the mortgage as they extended the time for the payment of the money; and so it is a power coupled with an interest, and not revoked by the death of the mortgagor. Walker v. Denison, 86 Ill. 142.

Fourth—It is contended, that when the note secured by this mortgage matured, defendant in error had it within his power to have applied assets of Charles A. Savage in his hands, in full discharge of the debt, but -failed to do so, and diverted such assets to other purposes. This is claimed to be proved by a transaction between defendant in error and Charles A. Savage on the 26th of November, 1875, whereby defendant in error purchased of Charles A. Savage ten quarter-sections of land in Nebraska, and, to secure the payment of the purchase money, gaVFhim his promissory note for $10,000, payable on demand, on which a credit of $2000 was indorsed. The following are stipulated to be the facts in regard to this transaction:

“After the deed of C. A. Savage to W. T. Savage of these Nebraska lands was recorded in Gage county, Nebraska, where they are located, Jonas B. Aiken, a creditor of said Charles, commenced suit against him in the district court of said Gage, county, Nebraska, by attachment, and levied on these lands, for the payment of his debt; that while said suit was pending, said W. T. Savage deeded these lands to Olivia T. Savage, wife of said Charles; that said Aiken prosecuted his said suit to. judgment and execution, under which said lands were sold by the sheriff of said Gage county to said Aiken, and a deed of the same was executed to him by said sheriff; that thereafter said Olivia T. Savage brought suit in said district court, against said Jonas B. Aiken and others, to set aside said sheriff’s deed and remove the cloud thereby created from her said title derived from said W. T- Savage; that said Aiken set up the defense in said suit, that said deeds of C. A. Savage to W. T. Savage, and W. T. Savage to Olivia T. Savage, were made with due notice, and without consideration, and were covinous* fraudulent and void, and sustained said defense, the suit being decided adversely to said Olivia; that said Olivia appealed, the case to the Supreme Court of Nebraska, when a final decision was made adversely to said Olivia, as reported in 11 Neb. 323.”

No reason is apparent why, under these facts, William T* Savage should be charged with these lands in the present suit. It does not appear but that the claim of Aiken exceeded their entire value, and it is upon plaintiffs in error to show a failure, in duty by defendant in error to apply property to the payment of this note. They have not done so, and it is therefore unnecessary to consider the questions so elaborately discussed* in the argument before us, in regard to the payments claimed, to have been made for these lands.

Fifth—Argument is pressed upon us to the effect that defendant in error should be charged with the value of a certain house and lot on Broadway, in Quincy. This is not set up in the answer, and therefore, if sustained by evidence, could not be now considered. But we may remark that, in our opinion, it is not so sustained by the evidence.

There is much evidence in this record to which we deem it unnecessary to make any reference. The entire evidence has been carefully considered, and after such consideration we are unable to say that there is any error in the record for which the judgment of the Appellate Court should be reversed. It is therefore affirmed.

Judgment affirmed.

Mr. Chief Justice Shops took no part in the decision of this case.


source: Caselaw Access Project

author: Mr. Chief Justice Shope

license: Public Domain

text:
    William Hobson v. Mary McCambridge et al.

      Filed at Springfield

      October 31, 1889.

    1. Judgment—in case of nominal and beneficial plaintiffs. In a suit before a justice of the peace in the name of one for the use of another, it is irregular and erroneous to enter judgment in favor of the beneficial plaintiff alone, and if so entered, it will operate as a discontinuance of the suit as to the nominal plaintiff, and the judgmént will be treated as in favor of the beneficial plaintiff alone.
    2. Transcript from justice—requisites. In order to authorize the filing of a transcript of a judgment of a justice of the peace in the circuit court, so as to have an execution issued out of that court, the transcript must show on its face the issue of an execution by the justice in favor of the plaintiff in the judgment, and its due return nulla bona by the proper officer. Without such issue and return the transcript, and subsequent proceedings thereunder, will be void.

      3. Execution—must follow the judgment. An execution must follow the judgment in every essential particular. It must be in favor of the plaintiff in the judgment. It should show for and against whom it issues, the amount to be collected of the latter in favor of the former, and also the date at which, and the court wherein, the judgment is rendered. No execution can be proper in form unless in these particulars it exactly pursues the judgment.
    4. Same—notice to defendant before levy. It is the duty of an officer holding an execution, to notify the defendantthereof before proceeding to levy the same, when that is practicable.
    5. Judicial sale—grounds for setting aside. While inadequacy of price may not be sufficient, of itself, to set aside a sale of land on execution or judicial sale, yet where there are circumstances of irregularity or fraud, or that show that unfair advantage was sought by the purchaser or the person benefited by the sale, the inadequacy of the price may always be taken into consideration, and may become conclusive evidence of fraud.
    6. The holder of an unindorsed note brought suit before a justice of the peace in the name of the payee, for his use. The justice entered judgment in the name of the usee, alone. Execution was issued in favor of the payee, for the use of the holder, which was returned nulla bona, and thereupon a transcript of the judgment and proceedings was filed in the circuit clerk’s office, whence issued a similar execution, which was levied on real estate of one of the defendants, and'a sale was had, without any demand by the sheriff on the defendants, at a grossly inadequate price, and a deed made to the beneficial plaintiff, who was the purchaser: Held, that the judgment debtor whose property was sold was entitled, in a court of equity, to have the sale set aside on payment of the sum due on the judgment, on the ground of irregularity in the proceedings, and the inadequacy of the price.
    Appeal from the Circuit Court of Montgomery county; the Hon. Jesse J. Phillips, Judge, presiding.
    This was a bill filed in the circuit court of Montgomery county, by appellees, Mary E. McCambridge, Blair McCam-bridge and Jeremiah Sullivan, against appellant, Hobson, to set aside a levy, sale, certificate of purchase and sheriff’s deed to an eighty-acre tract of land, and to restrain Hobson from further prosecuting an action of ejectment therefor.
    The material facts of the case are, that on May 21, 1884, Blair McCambridge gave his promissory note to T. Battles for $55, with his wife, Mary E., as security. The note, however, was the joint and several note of the two promisors. May 2, 1885, Hobson became the owner of the note, without indorsement, and on the same day brought suit in a justice’s court thereon, in the name of Battles, for his use. On the 8th day of May following, judgment by default was rendered against the defendants in that suit, in favor of William H. Hobson, for the sum of $56.60. Said judgment, omitting the caption and venue, is as follows:
    “Sum demanded, face of note, $55, interest, $1.60,—total, $56.60. May 2, 1885, summons issued in the above cause, and delivered to constable F. P. Gockelrese to serve, returnable on the 8th day of May, 1885, at one o’clock P. M. May 5, 1885, summons returned by constable Gockelrese, served by reading the same to Blair McCambridge and Mary E. Mc-Cambridge, defendants. May 8, 1885, two o’clock P. M., the defendants not appearing, it is considered by the court that Blair McCambridge and Mary E. McCambridge pay to Dr. W. H. Hobson ($56.60) fifty-six dollars and sixty cents, his demand, and the costs of this proceeding, which are four dollars and seventy-five cents ($4.75.)
    Benjamin F. McClure,

      Justice of the Peace.”

    The suit was docketed “T. Battles, for the use of Dr. W. H. Hobson vs. Blair McCambridge and Mary E. McCambridge.”
    On May 29, 1885, the justice issued an execution on this judgment in favor of T. Battles, for the use of Hobson, and delivered the same to the constable, who returned the same, June 2, 1885, indorsed “no property found.” On June 8, 1885, a transcript of the judgment was filed in the office of the clerk of the circuit court of the county, and the circuit clerk, June 16, 1885, issued an execution on such transcript, in favor of T. Battles, for the use of W. H. Hobson. This execution came to the hands of the sheriff June 17,1885, who, without seeing either of the defendants, or making any personal demand, levied on the south half of the north-west quarter of section 36, town 11 north, range 5 west, and on July 25, 1885, sold the same to Hobson for $82.65, the debt, interest and costs. The return shows the land was first offered.in forty-acre tracts, but there being no purchaser therefor, the eighty was sold en masse. The land -was not redeemed, and the sheriff, October 29,1886, executed his deed to Hobson for the premises sold. The land was the separate property of Mary E. McCambridge. This tract, at the time of levy and sale, was incumbered for about $750. Mrs. McCambridge also owned another tract of thirty-two and one-half acres in the same county, which was unincumbered, and worth from $30 to $45 per acre. She also was the owner of a piano worth from $125 to $200, and some other personal property free from incumbrance.
    It is claimed by complainants that they had no knowledge of the levy and sale of the land until after redemption had expired, and that no demand was made, either by the constable or sheriff, for a payment of the several executions while in their hands, and they both so testified. The constable testifies that he did make a demand, under his execution, of both the McCambridges, and the sheriff testifies that he mailed a postal card to Blair McCambridge, informing him that he held the last execution, but complainant denies receiving the same. It appears that Hobson commenced an action of ejectment against Sullivan, tenant of Mrs. McCambridge, and recovered one judgment, which had been vacated and a new trial allowed. On learning of the sheriff’s deed, and on or about the first of December, 1886, the McCambridges tendered Hobson $91.50, the sum then due on the judgment, with eight per cent interest, which he refused to accept, which tender has since been kept good by, bringing the money into court.
    The circuit court rendered a decree setting aside the deed and sale, and perpetually enjoining prosecution of said suit in ejectment.

      Mr. A. N. Kingsbury, for the appellant:
    In suits commenced before justices of the peace, technical precision and accuracy in the form of the entries are not indispensable. Zuel v. Bowen, 78 Ill. 234.
    No particular form is required to make the finding of a justice of the peace a judgment, provided it is final, and may subject the party against whom it is given, to injury. Kimball v. Riter, 25 Ill. 276; Railroad Co. v. Whipple, 22 id. 105.
    A variance between an execution and the judgment does not render the process void, but only voidable. Durham v. Heaton, 28 Ill. 269.
    A court of equity will not relieve against mere irregularities. Neuman v. Willitts, 60 Ill. 519.
    Failure to make demand of payment before levy and sale under execution will not affect the title acquired. At most, it may afford ground for a motion to set aside the sale. Rock v. Haas, 110 Ill. 528.
    A sale of land will not be set aside merely because it sold at a sacrifice. Noyes v. True, 23 Ill. 503; Greenup v. Stoker, 12 id. 24; Ayers v. Baumgarten, 15 id. 444; Kinney v. Knoebel, 51 id. 112; Mixer v. Sibley, 53 id. 61; Thomas v. Hebenstreit, 68 id. 115; Davis v. Pickett, 72 id. 483; Pickering v. Driggers, 59 id. 65 ; Flint v. Lewis, 61 id. 299; Davis v. Dresback, 81 id. 393; Morris v. Robey, 73 id. 463; O’Callaghan v. O’Callaghan, 91 id. 228; Emmons v. Moore, 85 id. 304.
    Mere inadequacy of price is not sufficient cause for setting aside a sale. McMullen v. Gable, 47 Ill. 67; Comstock v. Purple, 49 id. 158; Dutcher v. Leake, 44 id. 398; Davis v. Pickett, 72 id. 483; Sowards v. Pritchett, 37 id. 518; Duncan v. Sanders, 50 id. 475; Hess v. Voss, 52 id. 472; Allene v. Shephard, 87 id. 314.
    Relief will not be granted in equity against a sale of land on execution era masse, until after application has been made to the court to which the execution was returnable, to set aside the sale. Prather v. Hill, 36 Ill. 402.

      In the case at bar, the bill was filed July 25, 1887,—two ybars after the sale, and after one judgment in ejectment against appellees. Appellees had ample remedy by motion, and failed to avail themselves of that remedy. In such a ease they must show a strong case of fraud, wrong or oppression. Neither fraud, wrong nor oppression is shown in this case. Hay v. Baugh, 77 Ill. 500.
    It is only on the ground of fraud, or that some one may have been prejudiced by the sale of the land en masse, that the sale will be set aside, in equity, because the lands were not sold in separate parcels. Ross v. Mead, 5 Gilm. 171; Gillespie v. Smith, 29 Ill. 481.
    It must be kept in mind that this is a proceeding in equity, and no mere irregularity can be made the basis of equitable interference; and also, that this is a collateral attack upon the title to the land in controversy. In such a case, the party should-resort to a direct proceeding, if relief against irregularities is sought. Rigg v. Cook, 4 Gilm. 336.
    Messrs. Lane & Cooper, for the appellees:
    The execution must pursue the judgment, and be in the names of the parties, and if it does not, no title passes by a sale thereunder. Bradford v. Water Lot Co. 58 Ga. 280; Hightower v. Vennys, 27 Ark. 20; Knight v. Applegate, 3 Mon. 336; Hastings v. Johnson, 1 Nev. 615; Farnham v. Hildreth, 32 Barb. 277; Cole v. Heinson, 6 T. R. 234; Palmer v. Palmer, 2 Conn. 462; Walker v. Marshall, 7 Ired. L. 1; Newsome v. Newsome, 4 Ired. 381; Collais v. McLead, 8 id. 221; Brem v. Jamieson, 70 N. C. 567; Thompson v. Bondurant, 15 Ala. 342; Beazley v. Dunn, 8 Rich. 345; Crittenden v. Lessendorfer, 35 Mo. 240; Shackleford v. Hooper, 65 Ga. 336; Battles v. Gerdy, 58 Texas, Ill; Williams v. Atwood, 52 Ga. 586; Maury v. Shepperd, 58 id. 68; Shirley v. Phillips, 17 Ill. 471; Johnson v. Adleman, 35 id. 265; Dickerman v. Burgess, 20 id. 266; Hamilton v. Quimby, 46 id. 90.

      As to setting aside judicial sales for inadequacy of price and irregularities, see Thomas v. Hebenstreit, 68 Ill. 116; Day v. Graham, 1 Gilm. 435; Dutcher v. Leake, 44 Ill. 400; Dickerman v. Burgess, 20 id. 266; McLagan v. Brown, 11 id. 523; Stewart v. Croes, 5 Gilm. 442; Ballance v. Loomis, 22 Ill. 82; Morris v. Robey, 73 id. 463; Pitts v. Magie, 24 id. 610; Roseman v. Miller, 84 id. 297; Meyer v. Mintonye, 106 id. 414; Emmons v. Moore, 85 id. 306; Palmer v. Douglas, 107 id. 204; Berry v. Lovi, id. 612.
   Mr. Chief Justice Shope

delivered the opinion of the Court:

The bill in this case sought to set aside the sheriff’s sale and deed of the eighty-acre tract of land in question, and the circuit court rendered its decree in accordance with the prayer of the bill. It is insisted there was no authority of law for filing the transcript of the judgment of the justice of the peace in the office of the- clerk of the circuit court, and therefore no execution could properly be issued thereon by the clerk of said court. The suit was originally brought before the justice of the peace, in favor of Battles, for the use of Hobson, against the two McCambridges, but the justice rendered judgment against the defendants, in favor of William H. Hobson. It will be unnecessary to question the sufficiency of the entries by the justice in other respects, to constitute a valid judgment. It was clearly irregular and erroneous to render judgment in favor of the beneficial plaintiff, alone. The entry of the judgment in favor of Hobson necessarily operated as a discontinuance of the suit as to Battles, the nominal plaintiff, and he must be regarded as not a party to the further proceedings. The judgment must be treated as a judgment in favor of Hob-son, alone.

By section 95, chapter 79, of the Revised Statutes, it is provided : “When it shall appear by the return of an execution first issued, as aforesaid, (by the justice of the peace,) that the defendant has not personal property sufficient to satisfy the judgment and costs, within the district in which judgment was rendered, and it is desired by the plaintiff to have the same levied on real property in that or any other district, it shall be lawful for the justice to certify to the clerk of the circuit court of the county in which such judgment was rendered, a transcript, which shall be filed by said clerk, and the judgment shall thenceforward have all the effect of a judgment of the said court, and execution shall issue thereon out of that court, as in other cases.”

The issue of an execution, and its return by the proper officer, is made, by the statute, a condition precedent to the power of the justice to certify such transcript to the circuit clerk. Unles's the transcript shows, on its face, that this section of the statute has been substantially complied with, the clerk of the circuit court is invested with no authority, by law, to issue an execution. In 1 Freeman on Executions, (2d ed.) sec. 14, that author says: “When the county clerk issues execution to enforce the judgment of a justice of the peace, his authority to do so rests upon the filing of the transcript, and upon the existence of such other facts as the statute has prescribed. Unless it can be shown that the law was substantially complied with, the act of the clerk is regarded as without authority, and therefore as void, ”—citing Carr v. Youse, 39 Mo. 346, Ruby v. Hann, id. 480, Linderman v. Edson, 25 id. 105, and other eases. The author proceeds: “So there are statutes authorizing transcripts of judgments to be sent to other counties, sometimes for the purpose of making such judgments liens in the counties to which the transcripts are sent, and sometimes to authorize the issue of execution in such county. Where the latter is the object, the authority to issue execution depends on compliance with the provisions of the statute, and if issued in the absence of such compliance, the execution is void,”—citing Colville v. Neal, 2 Swan, 89, Morgan v. Hannah, 11 Humph. 122, and Eason v. Cummins, id. 210. In the same section this author further says: “When authority is given to the clerk of a circuit court to issue execution to any other county in which the judgment has been docketed, the docketing of the judgment in such other county has been held by the Supreme Court of Wisconsin to be a prerequisite to the issue of the writ to said county. It is even said that the fact of such docketing must be recited in the writ, on the ground that the writ must, on its face, disclose the authority for issuing it, and that failing to state such docketing, it discloses no authority whatsoever.”

Without further reference to authority, we think it clear that an execution must have been issued by the justice upon the judgment rendered by him, and duly returned nulla bona by the proper officer, before a valid transcript could be made and filed under this statute, and that without such issue and return the transcript and the proceedings thereunder were nullities. The transcript in this ease fails to show the issue and return of an execution upon the judgment of the justice of the peace. It is true, the issue and return of an execution are shown, but it was not in favor of the proper plaintiff. It was in favor of Battles, while the judgment is in favor of Hobson, alone. The fact that he was named as beneficial plaintiff, or the words, “for the use of Dr. W. H. Hobson,” does not constitute him the plaintiff in the execution. These words are unnecessary for any purpose, other than to protect the interest of the usee against the nominal plaintiff. In McCormick v. Fulton, 19 Ill. 570, we said: “As the note was not assigned, the beneficial plaintiff had no right to sue in his own name. It was only by the use of the name of the payee of the note that he could sue, and there is no provision of law that authorizes his name to be dropped in this proceeding. He was a necessary party in every stage of the proceeding. Courts of law can only recognize him as the plaintiff, although in modern practice, as a matter of convenience, they will declare and protect the trust. The beneficial plaintiff is not authorized to appeal in his own name, and every step taken must be in that of the nominal plaintiff.” And this is, as we understand, the uniform doctrine. The author from whom we have before quoted, in his work on Executions (see. 42,) says : “In this part of the execution the same precision must be attained as is necessary in the entry of a judgment. It should show for and against whom the execution issues, the amount or amounts to be taken from the latter for the benefit of the former, and also the date at which, and the court wherein, the judgment was rendered. No execution can be proper in form, unless, with reference to these particulars, it exactly pursues the judgment.” The execution must follow the judgment in every essential particular. See Bradford v. Water Lock Co. 58 Ga. 280; Knight v. Applegate, 3 Mon. 376; Hastings v. Johnson, 1 Nev. 377; Farnham v. Hildreth, 32 Barb. 277; Cole v. Heinson, 6 T. R. 234; Palmer v. Palmer, 2 Conn. 462; Walker v. Mcurshall, 7 Ired. L. 1.

It is, however, in the view we take of this case, unnecessary to hold that the execution issued by the clerk was void. To say the least, it was a grave and serious irregularity to issue execution, either by the justice or clerk, in favor of Battles, upon a judgment in favor of Hobson, and afforded ground for setting the same aside, upon motion or by bill in chancery; and.especially is this the case where, as here, there was gross inadequacy of price, and where the officer executing the process failed to call upon the defendants and demand payment, or in any manner to serve his execution. In addition to this, the evidence leaves but little doubt, if any, of the ability of the constable to have made the amount of the execution by a levy upon personal property. It is true, the constable testifies that he notified the defendants of the execution, and demanded property; but this is denied. Mrs.-McCambridge had personal property, which, she not being the head of the family, was not exempt from execution, sufficient to satisfy such' demand. Without making an effort to find property, the constable made return of Ms execution withm four days after it came to Ms hands. Why this was done does not appear, but immediately following, the transcript was filed in the office of the clerk of the circuit court, and on the 16th of June, 1885, execution was issued on the transcript, and the land sold on the 25th of July following. The land was first offered in forty-acre tracts, and there being no bids; the land was then sold en masse. It is shown that the land was susceptible of division. It is equally clear, from a preponderance of the evidence, that the sheriff did not serve the execution held by him, or give notice of it to the defendants, and it is not pretended that any notice was even sent to the defendant upon whose property the execution was levied. These facts might well warrant the court in finding that there had been an attempt, on the part of Hobson, to obtain, not simply the payment of Ms debt, but an unfair advantage, and securing a tract of land shown to be worth over $2000, for the sum of $83.65.

It is, however, said, that tMs tract of land was mcumbered to the extent of $750, and hence Hobson .could not safely purchase one forty acres thereof, although amply sufficient to satisfy his debt. We fail to see any real ground for fearing that this mortgage would attach to the forty that he might purchase, to the exclusion of the other forty. The exact reverse would have been the result. In case of the foreclosure of the mortgage the assets would have been marshaled, and the unsold part first made liable for the mortgage debt. But if this was not so, he might have levied upon the smaller tract of thirty-two and one-half acres, which was umncumbered, and belonged to the defendant Mrs. McCambridge. The land sold was worth from $30 to $40 per acre, or, at the lowest put by any of the witnesses, $2400. The incumbrance was $750, leaving the net value $1650, while the sale was for $83.65.

It is undoubtedly the rule, that when the debtor has the right of redemption, inadequacy of price alone will not justify the vacation of a sale on execution, or settmg aside a judicial sale. Gibbons v. Bressler, 61 Ill. 110; Watt v. McGilliard, 67 id. 513; Allen v. Shepard, 87 id. 214; Davis, Cory & Co. v. Chicago Dock Co. 129 id. 180. Where the inadequacy is gross, the purchaser can retain his advantage only by showing that he acquired title by proceedings free from fault or irregularity. If, says Mr. Freeman, the inadequacy can.be connected with or shown to result from any mistake, accident, surprise, misconduct, fraud or irregularity, the sale will generally be vacated, “unless • the complainant was himself in fault, or the rights of innocent third parties have become dependent on the sale.” While inadequacy alone may not, upon the grounds of public policy, be sufficient, of itself, to set aside a sale on execution, or a judicial sale, yet where there are circumstances of irregularity or of fraud, or that show that unfair advantage was sought by the purchaser or the person benefited by the sale, the inadequacy of price may be always taken into consideration, and may become conclusive evidence of fraud. Freeman on Executions, sec. 309; Morris v. Robey, 73 Ill. 462; Davis, Cory & Co. v. Chicago Dock Co. supra, and authorities cited.

In this case there is a palpable, gross inadequacy in price, and that there are serious errors and irregularities in the proceedings can not be questioned. Under the facts in the ease it can hardly be presumed that the constable returned the execution so hastily, and without any effort to obtain its satisfaction, without the direction of Hobson. Promptly upon the return of the execution the justice’s transcript was filed, and an execution issued from the circuit court, and the levy is made upon land of much greater value than was necessary, without any notice to the McCambridges. The land is sold within the lifetime of the execution issued by the justice, and, as we have seen, not only the levy may be said to be excessive, but a much greater portion of the land was sold than was necessary to satisfy the debt. It seems improbable that Mrs. McCambridge would have permitted redemption to expire, under the circumstances here shown, if she had notice of its sale. It was the duty of the officer holding the execution to notify the defendant thereof before proceeding to levy the same, when that was practicable. Taking all these circumstances into consideration, the gross inadequacy of the price at which the land was sold becomes, we think, strong evidence that the purchaser sought and obtained undue advantage, and the inference of fraud on his part, or a fraudulent purpose in manipulating these proceedings for the purpose of gaining such advantage, becomes irresistible.

The court below set aside the sale and deed on equitable terms, giving Hobson the amount of his judgment, with interest thereon, and his costs. We are of opinion that he has no just cause of complaint, and the decree of the circuit court will be affirmed.

Decree affirmed.


author: Mr. Justice Bailey

text:
    Edgar Z. Pells et al. v. Thomas Snell et al.

      Filed at Springfield

      October 31, 1889.

    1. Limitations—as to one who “resides out of the State”—in what a “residence" consists. “Residence” means a fixed and permanent abode or dwelling place, at least for the time being, as contradistinguished from a mere temporary locality of existence. A temporary sojourn within a State for pleasure or business, accompanied by an intention to return to the State of one’s former inhabitance, does not constitute a residence.
    2. Mere absence from the State, however protracted, is not sufficient to constitute a residence elsewhere, within the meaning of the words, “resides out of the State,” as used in the Limitation act. A person continually travelling from place to place in other States or in foreign countries, even if he has abandoned his residence here, can not be said to have acquired a residence, or to be residing in any other place.
    3. “Residence” necessarily involves the idea of a local habitation or place of abode, and unless such abode is established or acquired, no length of absence can be held to constitute residence abroad.

      4. It is not necessary that there should be an actual change,of the party’s domicile, in the strict legal sense of that word,—that is, an abandonment of his domicile in this State and the acquisition of a domicile elsewhere,—to bring him within the meaning of our Statute of Limitations ; but he must have acquired a fixed and permanent abode or dwelling place out of this State, at least for the time being.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Ford county; the Hon. C. B. Smith, Judge, presiding.
    Mr. Charles H. Wood, Mr. A. Sample, Mr. E. C. Gray, and Mr. F. L. Cook, for the appellants:
    The words, “departs from and resides out of the State,” in the Limitation law, mean an actual and not an apparent residence. Prior to the amendment of the section, merely departing from the State stopped the running of the statute. In addition to being out of the State, there is engrafted by the amendment the additional idea of an actual residence out of the State. Campbell v. White, 22 Mich. 195; Langden v. Doud, 6 Allen, 423; Drew v. Drew, 37 Me. 389; Chaire v. Wilson, 1 Bosw. 673; Hackett v. Kendall, 23 Vt. 275.
    Apparent residence exists where there are acts, but no intention. But actual residence can only be determined by the union of acts and intention. Town of Dore v. Town of Seneca, 74 Ill. 101; Cobb v. Smith, 88 id. 200; Smith v. People, 44 id. 25; Wells v. People, id. 40; Hayes v. Hayes, 74 id. 312.
    Mr. James S. Ewing, and Mr. T. C. Kerrick, for the ap-pellees.
   Mr. Justice Bailey

delivered the opinion of the Court:

This was an action of assumpsit, brought by Thomas Snell and others, surviving partners of the late firm of Snell, Taylor & Co., against William H.. Pells, to recover of him certain moneys, the avails of a promissory note formerly held by him, to which the plaintiffs claim, ex equo et bono, to be entitled. A former judgment, which was in favor of the defendant, was reversed by this court on appeal, and the facts involved in the controversy are so fully stated in the report of our former decision that they need not be repeated here. See Snell, Taylor & Co. v. Pells, 113 Ill. 145. After the decision of the former appeal the defendant died, and his death having been suggested on the record, his administrators were substituted as parties defendant. A second trial was then had in the Circuit Court before the court and a jury, which resulted in a judgment in favor of the plaintiffs for $5032 and costs. That judgment has been affirmed by the Appellate Court, and the record is now brought here on appeal from the judgment of that court.

To the declaration, which consisted only of the indebitatios assumpsit counts, the defendant pleaded non assumpsit and the Statute of Limitations. To the latter plea the plaintiff replied, first, that the defendant fraudulently concealed from the plaintiffs their said cause of action, and that the plaintiffs did not discover the same until within five years of the commencement of the suit; second, that at the time the plaintiffs’ cause of action accrued, the defendant was absent from the State and did not return from such absence until within five years prior to the commencement of said suit; and, third, that after said cause of action accrued, the defendant departed from this State and thereafter resided out of this State for divers periods of time, which, when deducted from the entire period of time which elapsed between the accruing of the cause of action and the commencement of the suit, would leave less than five years. These replications were duly traversed by rejoinders.

At the trial, the plaintiffs gave evidence tending to show an agreement on the part of Pells, entered into by him upon a sufficient consideration, that the money which should be realized on said note should go to Snell, Taylor & Co., and that he received said money for them in pursuance of said agreement. The jury, in addition to their general verdict finding the issues for the plaintiffs and assessing their damages, found specially, in response to questions of fact submitted to them, - that Pells was not the agent of the plaintiffs in obtaining the-subscriptions fpr which the note was given, or in procuring the note, but that he was their agent in obtaining the money realized from said note.

The point is made that the finding that Pells was not the agent of Snell, Taylor & Co. in obtaining the subscription and note necessitates the conclusion that the subscription and note were the property of Pells and not of Snell, Taylor & Co., and that it therefore follows, as a matter of law, that Snell, Taylor & Co. could have no more right to the proceeds of the note than they had to the subscription and note themselves. On this point we are satisfied with the reasoning and conclusions, of the Appellate Court as stated in the opinion of Mr. JusticePleasants, and therefore do not deem it necessary to do more than refer to what is there said. 31 Ill. App. 158.

The evidence shows that the money for which the suit was. brought came into the hands of Pells in May, 1875, and that, if the plaintiffs’ cause of action accrued at all, it accrued at. that time. As the suit was not brought until August 26,1880, it is beyond controversy that more than five years intervened, between the time the cause of action accrued and the commencement of the suit. The plaintiffs, however, in support of their replication, gave evidence tending to show, that for-various periods of time during that interval, which if deducted would leave said interval much less than five years, Pells was. actually absent from this State, and that during such absences, he had an abode, of greater or less permanency in Orleans, county in the State of New York. The plaintiffs’ contention is, that during the time he was so absent from this State, he-was “residing” in the State of New York, within the meaning-of the eighteenth section of the Statute of Limitations. What, would constitute a residence out of the State so as to entitle; the plaintiffs to have the periods of absence treated as no part of the time limited by the statute for the commencement of the suit, became a material question, and on that question the court, on his own motion, gave the jury the following instruction :

“If Pells went out of the State at various times merely for brief and temporary periods to attend to his business or to visit friends, and again returned without prolonging his stay for any considerable time, then such periods of absence should not be deducted from the five years. But for visits or periods of absence which should be prolonged any considerable length of time, showing that his absence was not merely temporary, then such times of absence should be deducted from the five years. In order to justify you in deducting time of absence from the State of different periods of time, the evidence ought to satisfy you that such periods of absence were extended so long as to justify the belief that he was not out of the State for a mere temporary business or social visit.”

The terms of our present Statute of Limitations, so far as they apply to the questions here raised, differ materially from those of the statute in force prior to the revision of 1872. By the former statute, all the time the defendant was out of the State after the cause of action had accrued and before the commencement of the action, however temporary the absence or for whatever purpose, might be deducted. R. S. 1845, chap. 66, sec. 13; Vallandingham v. Huston, 4 Gilm. 125; Chenot v. Lefevre, 3 id. 637. By section 18 of the act of 1872, it is provided that if after the cause of action accrues, the defendant “departs from and resides out of the State,” the time of his absence shall not constitute any part of the time limited for the commencement of the action.

The signification of the word “reside,” as used in the present statute, presents a question not altogether free from difficulty. Numerous definitions of residence are to be found in the books, differing from each other mainly in respect to the greater or less degree of permanence of the inhabitancy or abode which they involve. See Abbott’s Law Diet., title, Reside. There seems however to be a substantial agreement that residence means a fixed and permanent abode or dwelling-place, at least for the time being, as contradistinguished from a mere temporary locality of existence. Matter of Wrigley, 8 Wend. 134. Thus, it is held in Frost v. Brisbin, 18 Wend. 512, that a temporary sojourn within a State for pleasure or business, accompanied by an intention to return to the State of one’s former inhabitance, does not constitute residence.

The instruction above recited seems to hold, that the sufficient and only test by which to determine whether Pells was residing out of the State within the meaning of the statute, was to be found in the length of his absence, wholly irrespective of whether he in fact retained his residence in the State, as the evidence for the defense tended to show, or whether he established for himself any fixed abode or dwelling-place in another State, either permanent or otherwise. To this view we are unable to. give our assent. Mere absence from the State, however protracted, is not sufficient to constitute á residence elsewhere. A person continually travelling from place to place in other States or foreign countries, even if he has abandoned his residence here, can not be said to have acquired a residence, or to be residing in any other place. Residence necessarily involves the idea of a local habitation or place of abode, and unless such abode is established or acquired, no length of absence can be held to constitute residence abroad.

In several of the other States, whose statutes of limitations are identical, so far as the provision under consideration is concerned, with our present statute, it has been held that occasional and temporary absences from the State, however long continued, if they were not of such character as to change the party’s domicile, are not to be deducted in computing the statutory term fixed for the limitation of an action. Such was the rule laid down in Massachusetts, in Collector v. Halley, 6 Gray, 517, and Langdon v. Doud, 6 Allen, 423, the statute of that State providing that the time of a defendant’s absence should be deducted in case “he is absent from and resides out of the State.” The Statute of the State of Vermont was in the same words, and the same construction was put upon it in Hackett v. Kendall, 23 Vt. 275, and Hall v. Nasmith, 28 id. 791. The same construction has been put upon the same language in Maine. Drew v. Drew, 37 Me. 389. See also, Ford v. Babcock, 2 Sandf. 518; Wheeler v. Webster, 1 E. D. Smith, 1; Harden v. Palmer, 2 id. 172; Gilman v. Cutts, 27 N. H. 348.

We would not be understood as adopting the doctrine of the decisions above cited to the extent of holding that there must be an actual change of the party’s domicile, in the strict legal sense of that word, that is an abandonment of his domicile in this State and the acquisition of a domicile elsewhere, to bring him within the meaning of our Statute of Limitations, all we intend to .hold being, that he must acquire a fixed and permanent abode or dwelling place out of this State, at least for the time being.

We are of the opinion that the instruction given to the jury in this case was erroneous, and as there was a very considerable conflict in the evidence bearing upon the question of Pells’ residence, whether it was in this State or in the State of New York during the periods to which said evidence applied, the instruction must necessarily have had a tendency prejudicial to the defendant.

The only briefs filed by counsel in this court are those prepared by them for the Appellate Court, and most of the questions argued are mere questions of fact upon which the judgment of the Appellate Court is conclusive. As to questions of that character we of course can express no opinion, but for the error in the instruction the judgments of the Appellate Court and Circuit Court must be reversed, and the cause will be remanded to the latter court for a new trial.

Judgment reversed.


author: Mr. Justice Baker

text:
    Charles E. Bradish et al. v. Alexander Yocum.

      Filed at Springfield

      October 31, 1889.

      1. Appeal — reviewing the facts. In cases that come to this court through the Appellate Courts, the judgments of the Appellate Courts are, under the statute, final and conclusive as to all matters of fact in controversy; and when the trial is upon issues of fact, then, unless the record shows that some question of law is raised by exceptions, by instructions, by propositions submitted to the court, or otherwise, there is no question involved which this court is permitted to review.
    2. Same—in ejectment—■reviewing the facts, as well as the law. In an action of ejectment, involving a freehold, brought directly from the trial court, this court is authorized to pass both upon the facts and the law, and it is immaterial whether the complaint is that the court below, in making its finding, came to a wrong conclusion upon the facts or the law, or both. The inquiry is, did the facts, as they appear in the record, and the law, authorize the finding and judgment below.
    3. Contract in respect of real estate—the word “sold" not the equivalent of “conveyed." The word “sold,” when applied to real estate, can not, as a matter of law, be held always to be equivalent to the word “conveyed.” While a sale of realty can not be complete and effectual to pass the title without a conveyance, yet. the word “sold” and the word “sale” are frequently used with reference to a transaction wherein no deed has been executed. It will always depend upon the circumstances of the particular case whether or not the word “sold” or “sale” imports an actual conveyance.
    4. Conveyance—as to the property conveyed—latent ambiguity explained by parol. Where a latent ambiguity in the description of land in a deed is made manifest by other evidence, parol evidence is admissible for the purpose of making an identification of the land alienated by such deed. Parol evidence is always admissible to explain a latent ambiguity, and show what property was intended to be conveyed.
    5. In cases of latent ambiguity, evidence is received, not for the purpose of incorporating into the writing an intention not expressed therein, but simply with the view of elucidating the meaning of the words employed; and the duty of the court is to declare the meaning of what is written in the instrument, and not what was intended to be written.

      6. A, the owner of 181 acres of land, by his written contract, dated December 17,1880, sold the same to B on December 28,1880. A, by the direction of B, conveyed 112 acres of the land to C, which included 60 acres afterwards in dispute, and on February 9, 1881, A conveyed the remaining 69 acres to B. On January 29, 1881, C conveyed the 112 acres to B, who, on June.12,1881, conveyed 52 acres, being the south part of the 112 acres, to D. On November 2,1883, B conveyed, by warranty deed, to A, “all those parcels of land at, etc., which were sold to B by said A and by J B, excepting and reserving” a part thereof, which was described by metes and bounds: Held, that owing to the latent ambiguity as to whether the word “sold” meant the land embraced in the contract, or that in the deed of A to B, dated February 9,1881, parol evidence was properly admitted to show the land intended to be conveyed by the deed of November 2,1883.
    7. Same—burden of proof in case of a latent ambiguity. In ejectment for a tract of land claimed to have been conveyed by the defendant to the plaintiff, where the deed is subject to a latent ambiguity, the burden of proof will rest on the plaintiff to show that such tract was a part of the land intended to be conveyed to him.
    8. Same—construction of deeds and other written contracts. In construing deeds and all other instruments of writing, the important matter is to ascertain the intention of the parties, and the meaning which they attached to the words used.
    9. Same — construed as against grantor. Where there is doubt as to the construction of a deed, it is to be interpreted most favorably for the grantee. But this rule does not authorize the changing of the deed by incorporating into it an intention which is not expressed therein.
    10. Same—deed void for uncertainty. Where the subject of a grant by deed, after resort to extrinsic evidence, still remains a matter of mere conjecture, the deed will be held void for uncertainty.
    11. Teiaxj by the court—propositions of law. On the trial of an action of ejectment before the court alone, the parties are not required to submit written propositions of law, although they may properly do so.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Messrs. Orenborff & Patton, and Messrs. Palmer & Palmer, for the appellants.
    Messrs. Patton & Hamilton, for the appellee.
   Mr. Justice Baker

delivered the opinion of the Court:

This was ejectment, in the Sangamon circuit court, wherein Alexander Yocum, appellee, recovered from appellants 60 acres of land. The case was tried before the court without a jury.

On and before the 17th day of December, 1880, Yocum was the owner of 181^^ acres of land at or near Mud Lake, in Sangamon county, all of which is included in a written agreement of that date, executed and delivered by him to Ella G. Bradish, one of the appellants. The material portions of said agreement are as follows:

“This agreement, made and entered into this 17th of December, 1880, witnesseth, that I have this day sold to Ella C. Bradish all that part of section 9 which lies west of the San-gamon river and south of the railroad; also, all that part of the N. E. J of section 8 which lies south of the railroad, and fifty-six and fifty-six one-hundredths of the east part of the east half of the south-east quarter of section 8, all in township 16 north, range Í, west of the 3d P. M., for the sum of $17 per acre, and have received on account of said sale $50. I am to have surveyed all that part of said land which lies in the north-east quarter of said section 8 and north-west quarter of said section 9, and payment of balance to be made when survey has been made and deed executed. This sale is made subject to a lease to John M. Striffler,” etc.

December 28, 1880, Yocum made a deed for 112 acres of said land, which included the 60 acres in controversy, to one James L. Huse, and February 9, 1881, he executed a deed of conveyance for the 69T8^ acres of the land lying north of the quarter-section lines in said sections 8 and 9, to said Ella C. Bradish,—said 112 acres and said 69j8^j acres being the whole of the'land included in the written agreement. On January 29, 1881, Huse conveyed the 112 acres to Ella C. Bradish, and she, on the 12th of June, 1881, deeded 52 acres, being the south part of the 112 acres, to one Bichardson.

The title of appellee to the 60 acres of land in question depends upon the inquiry whether or not it was conveyed to him by a deed made by Ella C. Bradish and Charles E. Bradish, dated November 2, 1883. Said deed, omitting date, signatures and seals, is as follows:

“The grantors, Ella C. Bradish, and Charles E. Bradish, her husband, of the county of Sangamon, and State of Illinois, for and in consideration of $2400 in hand paid, convey and warrant to Alexander Yocum, of the county of Sangamon, and State of Illinois, the following described real estate, to-wit: All those parcels of land at or near Mud Lake, Sangamon county, Illinois, which were sold to Ella C. Bradish by said Yocum and by James Black, excepting and reserving, however, part of the S. E. f and part of the N. E. f of section 8, township 16 north, range 4 W., 3d P. M., and bounded as follows, to-wit: Beginning at a cut stone near the east bank of Mud Lake, distant 12 chains and 80 links south, and 13 chains and 24 links west from the N. E. corner of said S. E. f, and from which stone an elm, 24 inches in diameter, bears north 44f degrees west 9 If links, and a hickory, 16 inches in diameter, bears south 43 J degrees, west 79|- links, and running thence north 59f degrees, west 21 chains and 18 links to a cut stone, from which a walnut, 10 inches, is north 26¿- degrees, west 29 links, thence north 3 chains, 85J links to the south boundary line of the Illinois Central Railroad Company’s right of way through said section; thence in a northeasterly direction, along the south boundary line of said right of way, 23 chains; thence south, across said Mud Lake, to a point 2 rods south of the south bank of said lake; thence in a south-west-wardly direction, along parallel with and 2 rods distant from the south and east bank of said lake, to the place of beginning. It being also intended by this deed to convey a tract of land, 75 feet wide, south of and adjoining the last above described tract, beginning at said cut stone, near the east bank of Mud Lake, and running thence north 59f degrees west, across said lake, to a point 2 rods west of the west bank of said lake,— reserving, however, to said Bradish, her heirs and assigns, a perpetual easement for a roadway over said 75 feet strip,— reserving, also, roadways to ice house, and public roadway. Yocum to have privilege of stock going to water along the lake. The covenants of warranty herein are not to apply as against any incumbrance upon that part of said land heretofore conveyed by said Yocum to said Bradish, which may have existed at the date of said conveyance. Said lands are situated in the county of Sangamon and State of Illinois.”

The contention of appellants is, that the expression, “all those parcels of land at or near Mud Lake, Sangamon county, Illinois, which were sold to Ella C. Bradish by said Yocum,” refers to the lands conveyed by the deed from Yocum to Ella G. Bradish, dated February 9, 1881; and the contention of appellee is, that said expression has reference to the lands described in the written agreement of December 17, 1880.

Appellants qrge that the word “sold,” when applied to real estate, legally and necessarily implies a conveyance, and that the word “sold,” in the deed from them to appellee, is unavoidably equivalent to the word “conveyed.”

Appellee insists that the matters of the construction of the deeds of November 2, 1883, and February 9, 1881, and the written agreement of December 17, 1880, are purely legal questions, and should have been presented to the trial court by the submission of written propositions to be held as law in the decision of the case, and that no such propositions having been submitted, appellants are now precluded from raising such question of construction in this court. For the maintenance of this position appellee relies on the following authorities: Tibballs v. Libby, 97 Ill. 552; Mutual Aid Association v. Hall, 118 id. 169 ; Hobbs v. Ferguson’s Estate, 100 id. 232; Farwell & Co. v. Shove, 105 id. 61; Barber v. Hawley, 116 id. 91; McIntyre v. Sholty, 121 id. 660.

There is no doubt it would have been entirely competent for appellants to have submitted written propositions to the court, and to have excepted and assigned error upon its refusal to hold such propositions to be the law applicable to the case. It is to be noted, however, that all the cases cited by appellee are either appeals from or writs of error to the Appellate Courts. In cases that come to this court through the Appellate Courts, the judgments of the Appellate Courts are, under the statute, final and conclusive as to all matters of fact in controversy; and where the trial is upon issues of fact, then, unless the record shows that some question of law is raised by exceptions, by instructions, by propositions submitted to the court, or otherwise, it is manifest there is no question involved which this court is permitted to review. But our attention is called to no case of a direct appeal from the trial court to this court where such rule has been held to apply. In this action of ejectment, involving a freehold, brought here directly from the circuit court, this court is authorized to pass both upon the facts and the law; and it is immaterial whether the complaint is that the court below, in making its finding, came to a wrong conclusion upon the facts or the law, or both. The inquiry is, did the facts, as they appear in the record, and the law, authorize the finding and judgment below?

While holding that appellants can now raise the question they seek to, in respect to the meaning of the word “sold,” found in the conveyance from them to appellee, yet we are not prepared to say, as matter of law, that the word “sold,” when applied to real estate, is always equivalent to the word “conveyed.” In construing deeds and all other instruments of writing, the important matter is to ascertain the intention of the parties, and the meaning which they attached to the words used. A sale of realty can not be complete and effectual to transfer legal title without a conveyance, yet very frequently both the word “sale” and the word “sold” are used with reference to a transaction wherein no deed has been executed, as in many cases of judicial sales, sales by auctioneers and other agents, and sales made by the owners under executory contracts. It will always depend upon the circumstances of the particular case whether or riot the words import an actual conveyance and transfer of legal title.

The question that arose, at the trial, upon the deed to appellee, was in regard to the description of the property conveyed by it. The deed conveyed to appellee “all those parcels of land at or near Mud Lake, Sangamon county, Illinois, which were sold to Ella C. Bradish by said Yocum.” In order to identify the subject matter of the conveyance, it was necessary to show what lands had been so sold. Appellee introduced in evidence the written agreement of December 17,1880, which stated, “I have this day sold to Ella 0. Bradish, ” and then described lands which included the premises in controversy, and further stated, “this sale is made subject to a lease,” etc.; and also offered in evidence the deeds of December 28, 1880, and February 9,1881, which developed the fact that he had conveyed the 112 acres, which included the 60 acres in suit, to Huse, and had only conveyed the 69-^g- acres to Ella C. Bradish. It was apparent there was a latent ambiguity, made manifest by the extrinsic evidence. We think the circuit court ruled properly in holding that parol evidence might he admitted for the purpose of making an identification of the lands alienated by the deed to appellee. Parol evidence is always admissible to explain a latent ambiguity, and show what property was intended to be conveyed by a deed. Marshall v. Gridley, 46 Ill. 247; Bybee v. Hageman, 66 id. 519; Billings v. Kankakee Goal Co. 67 id. 489; Colcord v. Alexander, id. 581; Fisher v. Quackenbush, 83 id. 310; Sharp v. Thompson, 100 id. 447.

The difficulty in the ease is as to the sufficiency of the evidence to establish that the 60 acres in dispute was a portion of the lands conveyed. Appellee testified positively that his purchase included the 60 acres; that he. made the deed to Huse for the purpose of saving the expense of another conveyance, by the direction and at the request of Mr. Bradish, who, in the whole transaction, acted for his wife; that he refused to deed to Huse without the agreement of December 17,1880, was surrendered to him; that this was done, and that the purchase money from Huse was paid to him, and that thereupon he gave to Mrs. Bradish a bond for a deed for the remaining 69pVo acres.

The claim made by appellee was corroborated by Menden-hall, who testified that he had a mortgage for $3000 on the land Bradish conveyed to Yocum, including the 60 acres, which mortgage also covered the 15 or 16 acres reserved in the deed, and on which the ice house stood; that Mr. Bradish told him he had sold all the land to Mr. Yocum, except that on which the ice house stood, and requested him to release all of it except the 15 or 16 acres, and that he did so, and received $2000 from Yocum. The force of this circumstance was weakened by the explanation made by Bradish, that he had a previous arrangement with Yocum, which fell through, for the sale of all the land except that on which the ice house stood, and that at that time he arranged with Mendenhall to release, for a certain sum, all the land except the ice house reservation, and that when he made the subsequent arrangement with Yocum, and deeded to him, he paid Mendenhall the sum agreed upon, and had all the land, except the reservation, released from the mortgage. This prior arrangement, however, was denied by Yocum.

Another circumstance which tended to show the 60-acre tract was included in the conveyance was, that a strip out of it, two rods wide, formed a part of the reservation made in the deed. It would seem unreasonable and useless, if, as claimed by appellants, the sixty acres were not conveyed, but remained vested in Ella G. Bradish, that a small strip of ground therein should have been included in the reservation to her. The remaining corroborative circumstance was the improbability that Yocum would pay $27 per acre for land which some three years before he had sold at $17 per acre.

On the other hand, Charles E. Bradish testified, with positiveness, that the conveyance did not and was not intended to include the 60-acre tract. The circumstances which tended to corroborate him were of quite as much probative force as those which tended to corroborate Yocum. The words of the deed to Yocum, “convey and warrant,” are words of warranty, and the words of limitation upon this warranty, found in the latter portion of the deed, are: “The covenants of warranty herein are not to apply as against any incumbrance upon that part of said land heretofore conveyed by said Yocum to said Bradish, which may have existed at the date of said conveyance.” The deed speaking, in one place, of “the land sold by Yocum,” and in another place, of “the land conveyed by Yocum,” the probabilities are that the word “sold” was used as synonymous with “conveyed,” and that the two references are to the same land. If the theory urged by appellee is the correct theory, then the whole of the land lying south of the reservation was conveyed to him by the description, “all those parcels of land * * * which were sold to Ella 0. Bradish by said Yocum and by James Black;” and the words in a subsequent part of the instrument, “it being also intended by this deed to convey a tract of land 75 feet wide, south of and adjoining the last above described tract,”—i. e., the reservation,—“beginning at said cut stone near the east bank of Mud Lake, and running thence north 59J degrees west across said lake to a point two rods west of the west bank of said lake,” would be wholly inoperative, as they would be but a double conveyance, in the same instrument, of said strip of land. Moreover, the conversation and transaction testified to by Guyant, about the rails belonging to the partition fence between the 60-acre tract and the tract lying north of it, were inconsistent with the theory that both tracts were conveyed to Yocum.

But the strongest point against the claim of appellee is, that it is inconsistent with the theory upon which he relies for its support, and conflicts with the deed, and the written agreement upon which he bases it. The fact Mrs. Bradish, in 1881, had conveyed the south 52 acres to Richardson, is a circumstance which makes it improbable that she, in 1883, attempted to convey, and warranted, said 52 acres to Yocum. The theory of appellee is, that the expression, “all those parcels of land which were sold to Ella C. Bradish by Yocum, ” refers to the lands mentioned in the written agreement. The words of the deed are, “all those parcels of land;” therefore, if the deed refers to the written agreement, then, necessarily, it shows an intention to convey thereby all the lands “sold” by the agreement, and this would include not only the 69tUq acres and the 60 acres, but also the 52 acres theretofore deeded to Richardson. Why would there not be equally good ground for the claim the deed and warranty covered the Richardson land, and Mrs. Bradish was liable therefor on the covenants of warranty? Appellee, however, does not contend that it was intended by the deed to convey the 52-acre tract, but, both in his testimony and by his brief, his claim is, that the deed from the Bradishes was for the James Black land, “and for all the land which he (Yocum) had previously sold to her (Mrs. Bradish) by virtue of the agreement of December 17, 1880, that she had not otherwise conveyed.”

In cases of latent ambiguity evidence is received, not for the purpose of importing into the writing an intention not expressed therein, but simply with the view of elucidating the meaning of the words employed; and the duty of the court is to declare the meaning of what is written in the instrument, and not of what was intended to be written. (1 Am. & Eng. Ency. of Law, p. 532, and authorities cited in note 1.) It must be presumed, that if the deed refers to the agreement, and if it was not the intention by it to convey all the lands sold by Yocum to Ella G. Bradish, then, that the real intention would have been expressed in the deed, either by words of exclusion, or otherwise. The deed is manifestly inconsistent with the claim made by appellee that it was intended thereby to transfer the lands described in the agreement that Mrs. Bradish had not previously conveyed. Where there is doubt as to the construction of a deed, it is to be interpreted most favorably for the grantee; but here the latter asks that the deed shall be changed from what it was when executed by the grantors, by incorporating into it an intention which is not expressed therein.

For the purpose of sustaining a grant, extrinsic evidence may always be used to identify and establish the objects of the calls in a deed; but when the subject of the grant, after resort j;o proof that is dehors the deed, still remains a matter of mere conjecture, the deed will be held void for uncertainty. Here the Black land and the tract of land that lies north of the land in controversy are definitely ascertainable, whether the deed be held to refer either to the written agreement or the conveyance of February 9, 1881, and there is no failure of the grant. It seems to us, however, that the conclusion of the circuit court, that the deed also called for the tract of land which was recovered in this suit, was based upon inconclusive circumstances, and that there were other circumstances in evidence tending to establish that said land was not conveyed, which, when read in the light of the deed itself, were of equal and even greater potency. The burden was upon appellee to show that said tract was a part of the lands deeded to him, and this he failed to do.

We think the finding and judgment of the circuit court were ' erroneous, and the judgment-is reversed and the cause remanded for another trial.

Judgment reversed.