author: Mr. Chief Justice Sheldon

text:
    Frank Adams et al. v. The People of the State of Illinois.

      Filed at Springfield March 26, 1884.

    1. Continuance—absence of witnesses—materiality of the proposed testimony. Preliminary to the trial of two defendants on a charge of murder, alleged to have been committed on the night of the 10th of July, by compelling the deceased to jump from a railroad car while in rapid motion, the court refused a continuance on behalf of the accused, asked on the ground of the absence of two witnesses residing in Indiana, by whom the defendants expected to prove that such witnesses saw the defendants at the town of Godfrey, in Madison county, Illinois, on the evening of July 9, a place distant some twenty-five or thirty miles from where the offence was charged to have been committed: Held, no error, as the affidavit failed to show any incompatibility between the fact alleged, as expected to be proved, and the commission of the offence by the defendants. The absent testimony was immaterial.
    2. Criminal law—what constitutes murder—of the intent. Intent to kill does not enter into the definition of murder. It is enough if the unlawful killing be done with malice aforethought, either express or implied.
    3. If a party of men board a railway car, and while the train is running draw deadly weapons on a passenger, and make him hold up his hands while they rob his person, and then by threats and intimidation cause him to jump from the ear door, they commanding him to do so, and he is thereby killed, they will be guilty of murder. In such case it is not essential that death should be the probable and reasonable result of the act the deceased is forced to do. It is sufficient that death or great bodily harm was the natural result. Forcing a person to do an act which causes his death, renders the death the guilty deed of him who compelled the deceased to do the act.
    4. Malice may be inferred when an act unlawful in itself is done deliberately, and with intention of mischief or great bodily harm to those on whom it may chance to light, if death is occasioned by it. By the statute, if an involuntary killing shall happen in the commission of an unlawful act which in its consequences naturally tends to destroy the life of a human being, or the act is committed in the execution of a felonious intent, the offence is declared murder.
    5. Same—of the evidence against one charged with murder. On the trial of two persons on a charge of murder committed on July 10, 1883, by compelling a passenger to jump from a railway train while it was in motion, two witnesses for the People were allowed to testify, over an objection, that they saw the defendants, and two others, with whom the defendants were indicted for the murder, together on the railroad track on July 8, 1883, and that one of them had a revolver: Held, that there was no legal objection to this testimony.
    6. In the same case, the State’s attorney, in the examination of one of these witnesses, produced a watch chain, and the witness said it was his chain, and that he had it on when he met the defendants and the two others who were indicted, on the evening of July 8, 1883,—which was objected to: Held, that while the evidence as to the watch chain might properly enough have been excluded as irrelevant, yet it was not sufficiently harmful to the defendants to make its admission material error. It would not justify an inference that the witness had been robbed by the four men.
    7. -So, too, one of these witnesses," in answer to the inquiry whether there was anything unusual to cause him to remember the time of seeing one of the defendants on the morning of July 8, 1883, said a man was found dead that morning,—a stock man, who had fallen from a train: Held, that the concluding part of this evidence repelled any inference that this man, too, had been thrown from the train by the same men, and its admission was not error.

      8. Same—of a reasonable doubt. On the trial of one for murder, an instruction for the defence that the law in regard to reasonable doubt applies with greater force to circumstantial than to other classes of evidence, is erroneous, and properly refused.
    9. It is error in an instruction for the defence to say, that if the circumstances are capable of being explained on a theory consistent with the innocence of the accused, the jury should acquit. A theory might be assumed that the testimony as to his guilt was false, and on such a theory there could be an explanation of the circumstances consistent with his innocence.
    10. Same—and herein, of the policy that many guilty men should escape rather than one innocent person should suffer. On the trial of two persons upon a charge of murder, the defendants asked the court to instruct the jury that the policy of the law is, that it is better that ninety and nine, or any number of guilty persons, should escape, than that one innocent man should be convicted, and that it is not sufficient to authorize a conviction that the greater weight or preponderance of evidence supports the allegations of the indictment,—which the court refused to give: Held, that the instruction was properly refused, there being no policy of the law on the subject, or for the consideration of the jury; that it is not within the purpose of the law that any guilty person should escape or any innocent one be convicted; and that if the greater weight or preponderance of the evidence be such as to satisfy the jury, beyond a reasonable doubt, of the defendants’ guilt, then it would be sufficient to authorize a conviction.
    Writ of Error to the Circuit Court of Greene county; the Hon. George W. Herdman, Judge, presiding.
    Messrs. Doolittle & English, for the plaintiffs in error.
    Mr. James McCartney, Attorney General, for the People.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

Frank Adams and Benjamin F. Pritchard, at the September term, A. D. 1883, of the Greene county circuit court, were indicted for the crime of murder, and found guilty, and sentenced to imprisonment in the penitentiary for the terms of twenty and fourteen years, respectively. They bring this writ of error to reverse the judgment.

The refusal of a continuance is assigned for error. The defendants were indicted on the 6th of September, 1883, and on the 17th of September, 1883, made their motion and affidavit for a continuance, on the ground of the absence of two witnesses, who resided in Indianapolis, in the State of Indiana, by whom they expected to prove that said witnesses saw the defendants at the town of Godfrey, in the county of Madison, in this State, on the evening of the 9th of July, 1883, the day before the night on which the offence charged' in the indictment was alleged to have been committed; that said place was a distance of twenty-five or thirty miles from the place where the offence was said to have been committed, and in a different direction from which the train upon which the offence alleged to have been committed, came. The crime was charged in the indictment to have been committed on the 10th day of July, 1883, by forcing the deceased, one Patrick Knight, to jump from a freight car on a certain railroad while the car was in motion. The affidavit, so far as we can see, does not show any incompatibility between the fact alleged as expected to be proved by the witnesses, and the commission by the defendants of the crime charged, and we think the motion for a continuance was properly overruled on the ground of the materiality of the absent testimony not sufficiently appearing.

Objection is taken to the admission of the testimony of the witnesses Curtis and Thompson. The testimony of these witnesses was upon the point of having seen the defendants, and Hogan and Eyan, with whom they were indicted, together on the railroad track on the 8th of July, and that one of them had a revolver. There could be no objection to this; but in the examination of Curtis, the State’s attorney produced a watch chain, and the witness said it was his chain,—that he had it on when he met these men, on the evening of the 8th of July. This evidence as to'the watch chain might properly enough have been excluded as irrelevant, but we do not see that it was sufficiently harmful to the defendants to make its admission material error. It is said the implication would be that the witness was robbed by these four men. We think that would be a strained inference from the evidence, and one not justified.

Thompson, in answer to the inquiry whether there was anything unusual to cause him to remember the time of seeing Eyan on Sunday morning, July 8, said a man was found dead that morning,—a stock man had fallen from the train. It is said that was calculated to produce the impression that this man, too, had been thrown from the train by these men; but the concluding portion of the statement, that a -stock man had fallen from the train, repels such an idea.

It is contended that the evidence does not support the verdict. The witness, Patrick Coughlin, testified that he left Chicago with Patrick Knight, going to St. Louis; that on the way they, at Greenfield, on the line of the Chicago, Burlington and Quincy railroad, got into a box car on a freight train on that railroad, in which were Adams, one of the defendants, and Eyan, and as the train started, Pritchard, the other defendant, and Hogan, jumped into the car, and the doors were shut; that some time afterwards, while the train was running, the four other men “covered” witness and Knight with four revolvers, two of them also having razors in their left hands; that they ordered witness and Knight to hold up their hands, and searched them; that they got nothing from witness, for he had nothing, but they took about three dollars from Knight. After that they opened the door of the car and told witness and Knight to jump; that witness jumped first, and some one kicked him; that witness was not hurt ; that he walked along a little way and came to the body of Knight; he was dead; the body was lying at right angles with the track, the feet out, and the head between the ties, about an inch and a half or two inches from the rail; the back part of his head had been crushed in. The testimony of this witness, if believed, would sustain the verdict. It is insisted that the testimony is not entitled to credit. The jury appear to have given credence to it, and after a careful consideration of it, with the other evidence in the case, and the circumstances which are adverted to as detracting from the credibility of the witness, we find no sufficient reason for disturbing the conclusion of the jury.

Objection is taken to the giving and refusing of instructions. This instruction was given upon the part of the People:

“The court further instructs the jury, for the People, that to prove, the charge in the indictment there need be no laying of hands on the person of Patrick Knight, by the defendants, to put him from the car, in order to constitute the force therein alleged; but that if defendants did, by threats of violence to the person, intimidation, or by displaying deadly weapons in a threatening manner, cause the said Patrick Knight to leap or jump from the car while in motion, as alleged in the indictment, under circumstances which would have caused a prudent man to do so, and thereby he was killed, as charged in the indictment, and if the jury so believe, from the evidence, beyond a reasonable doubt, that such are the facts, they should find the defendants guilty. ”

The exception taken to this instruction is, that it is defective in not having the qualification that the defendants forced the deceased to jump from the car with intent to kill him, or that the killing was the probable and reasonable result of such jump. Intent to kill does not enter into the definition of murder. It is enough if the unlawful killing be with malice aforethought, either express or implied. Nor was it essential that death should have been the probable and reasonable result of the act which the defendants forced the deceased to do. It is sufficient that death or great bodily harm was the natural result. Forcing a person to do an act which causes his death, renders the death the guilty deed of him who compelled the deceased to do the act. (3 Greenleaf on Evidence, sec. 142.) Malice may be proved by evidence of gross recklessness of human life, where, in any manner, the life of another is knowingly, cruelly and grossly endangered, whether by actual violence, or by inhuman privation or exposure, and death is caused thereby. (Ibid. sec. 147.) Malice may be inferred where an act unlawful in itself is done deliberately, and with intention of mischief or great bodily harm to those on whom it may chance to light, and death is occasioned by it. (2 Starkie on Evidence, 951.) The definition of murder, by our statute, is: “The unlawful killing of a human being, in the peace of the people, with malice aforethought, either express or implied. * * * Malice shall be implied where all the circumstances of the killing show an abandoned and malignant heart. ” And in the statutory definition of involuntary manslaughter there is this provision: “Provided, always, that where such involuntary killing shall happen in the commission of an unlawful act, which, in its consequences, naturally tends to destroy the life of a human being, - or is committed in the prosecution of a felonious intent, the offence shall be deemed and adjudged to be murder. ” The instruction presents fully a case of murder as thus defined by the statute.

It is the same objection, substantially, which is made to the other instructions on behalf of the People, except the seventh, which informs the jury, “that if the defendants * * * conspired to rob Patrick Knight, * * * and with the intent to conceal said crime of robbery did force him to jump, ” etc., they should find the defendants guilty. The further exception is taken to this instruction that there is nothing in the evidence upon which to base it. There was evidence of a robbery of Knight, and that immediately upon its commission he was forced to jump from the car. We do not think it can well be said there is nothing in the evidence upon which to base the instruction.

We perceive no error in the refusal of instructions asked . by the defendants. The first was erroneous in saying to the jury that the law in regard to reasonable doubt applies with greater force to circumstantial than to other classes of testimony. We are aware of no such rule of law. There was further error in saying that if the circumstances were capable of being explained on a theory consistent with the innocence of the defendants, the jury should acquit. A theory might be assumed that the testimony as to the defendants’ guilt was false, and on such a theory there could be an explanation of the circumstances consistent with the innocence of the defendants.

The second refused instruction asserted that the policy of the law is, that it is better that ninety and nine, or any number of guilty persons, should escape, than that one innocent man should be convicted, and that it is not sufficient to authorize a conviction that the greater weight or preponderance of evidence supports the allegations of the indictment. There is no policy of the law upon the subject, or for the consideration of the jury. It is not within the purpose of the law that any guilty person should escape, or any innocent one be convicted. The question for the determination of the jury is that of the guilt or innocence of the accused, and it is not for them to inquire what is politic to do. If the greater weight or preponderance of the evidence be such as to satisfy the jury, beyond a reasonable doubt, of the defendants’ guilt, then it would be sufficient to authorize a conviction.

The third refused instruction laid it down as the duty of a juror not to yield to the mere importunities or persuasions of other jurors, but only to yield to his own sound and mature judgment, based solely upon a fair and candid consideration of the evidence. This instruction was properly refused, as holding out encouragement to the jurors to adhere obstinately to their°individual opinions, and not to be influenced by the views of, or deliberation with, their fellow jurors.

Finding no material, error in the record, the judgment must be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Scott

license: Public Domain

text:
    Jairus C. Sheldon v. Charles H. Van Vleck et al.

      Filed at Springfield March 26, 1884.

      1. Costs—under what process to be collected—whether by fee-bill or upon execution. Where final judgment is rendered in favor of the defendant for his costs, they can be collected of the plaintiff only by execution. In such a case a fee-bill issued against the plaintiff, for both his and the defendant’s costs, is void, and no valid sale of property can be made under it.
    2. A fee-bill containing in fact, as appears on its face, the costs, only, of the party against whom it is issued, is a legal process, and a levy upon and sale of land of the party under it will pass the title, when followed by a sheriff’s deed. The mere omission of the clerk to state in the fee-bill that it contains" only the costs of the party against whom it is issued, does not render it invalid, when it distinctly appears on the face, of the writ that no other costs are included.
    3. Same—within what time a fee-bill may be issued. A fee-bill against a party for his costs, issued after a lapse of more than one year from the last day of the term of court at which the party’s suit was dismissed, no other one having been issued, if within eleven years is not invalid, and the party’s property may be sold under it.
    4. By the statute in force ever since 1859, the clerk, on proper application, may, at any time within eleven years after the accruing of the right thereto, issue a fee-bill, which will have the same force and effect as if issued within the year next succeeding.
    Appeal from the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.
    This was an action of ejectment, brought by Jairus C. Sheldon, against Charles H. VanVleck and Frank VanVleck, in the circuit court of Champaign county, to recover a tract of land consisting of forty acres. The court, to which the cause was submitted for trial, without the intervention of a jury, found the issues for defendants, and rendered final judgment against plaintiff. To reverse that judgment, plaintiff brings the case to this court, on appeal.

      Mr. J. 0. Cunningham, for the appellant:
    It was claimed by the defendants below, upon the authority of Eads v. Couse, 35 Ill. 534, and of Neal v. Blanchard, 32 id. 503, that both the fee-bills issued by the clerk against Hays were void writs, and hence no title passed under the sales and deed. This objection to plaintiff’s title was sustained by the court, and is really the only point in the case. If those writs, or either of them, were the proper writs by which to collect the costs, then the plaintiff should recover the land, otherwise he should fail. The force and effect of those writs must be determined by the law in force in this State .during the years 1866 and 1867, governing such cases. Gross’ Stat. sec. 51, p. 512. See, also, Gross’ Stat. sec. 9, p. 290.
    A fee-bill may be issued against a party to collect the costs due from him to the officers of the court, without regard to the result of the suit; but the clerk has no authority to issue that kind of process to enforce a final judgment. Eads v. Couse, 35 Ill. 534; Reddicks v. Cloud, 2 Gilm. 670; Newkirk v. Chapron, 17 Ill. 344; Wickliff v. Robinson, 18 id. 145.
    The provision of the statute as to the entry of costs in his fee-book is directory. Eaton v. Graham, 11 Ill. 619; Webster v. French, 12 id. 302; Kane v. Footh, 70 id. 587; Fowler v. Pirkins, 77 id. 271; Whalin v. City of Macomb, 76 id. 49.
    The writ will protect a purchaser’s title, except where there is a want of jurisdiction. The purchaser under a fee-bill is not to be affected by any errors in the clerk’s entries. The writ, at most, was only voidable in a direct proceeding for that purpose, in apt time, and not void, as held by the circuit court. These principles are held and well elucidated in Rigg v. Cook, 4 Gilm. 336; Durham et al. v. Heaton, 28 Ill. 264; Conover v. Musgrave, 68 id. 58; Jackson v. Spink, 59 id. 404; Osgood v. Blackmore, id. 261; Hernandez v. Drake, 81 id. 34; Phillips et al. v. Coffee, 17 id. 156; Swiggert v. Harbor et al. 4 Scam. 364.

      Mr. Francis M. Weight, for the appellees:
    It is conceded that the fee-bill in the case of Kelley v. Hays, and the sale under it, are void, under the authority of Eads v. Couse, 35 Ill. 534, and Neal v. Blanchard, 32 id. 503. No distinction can be made between the character of the two pretended processes. The one in the Kelley case is a fee-bill, and on its face is professedly for the costs of both parties ; the other, in the Rittenhouse case, is also a fee-bill, so indefinite and uncertain that it is impossible to know for what or whose costs it was issued,—and under the authority of the two cases last cited, both processes were and are void. The court can not presume, as contended, that the costs specified in the fee-bill in the Rittenhouse case were the costs of the plaintiff. A party seeking to establish title to real estate, especially under the circumstances of the plaintiff in this case, ought to be required to affirmatively show everything necessary to establish his claim.
    The Rittenhouse fee-bill was not issued within a year, and hence it was no lien on the land. To preserve the lien of a judgment, execution must issue thereon within a year. Riggin v. Mulligan, 4 Gilm. 50; Tenney v. Hemenway, 53 Ill. 97; Scammon v. Swartwout, 35 id. 326.
    The doctrine of the cases hereinbefore cited has been announced and re-affirmed in numerous other cases by this court,—notably in Gridley v. Watson, 53 Ill. 186; James v. Wortham, 88 id. 72; Conwell v. Watkins, 71 id. 488; Harris v. Cornell, 80 id. 54; Weis v. Tieman, 91 id. 27; Kirk v. Vonberg, 35 id. 440; Ewing v. Ainsworth, 53 id. 464; Fitts v. Davis, 42 id. 391.
   Mr. Justice Scott

delivered the opinion of the Court:

Both parties claim the title to the land involved in this litigation that was in Otho Hays. Through mesne conveyances the title that was in him came to defendants, and is the paramount title, unless it has been cut off by sales under two fee-bills that came to the hands of the sheriff making the sales, from the circuit court, by which he was commanded to sell the property of Otho Hays in satisfaction of such fee-bills. After the fee-bills came to the hands of the sheriff, he caused both of them to be levied on the tract of land in controversy, and on the 30th day of November, 1867, by virtue of such-levies, he sold the property on each fee-bill, separately, to J. H. Woodmansee, and issued to him two separate certificates of purchase. It seems the purchaser afterwards assigned his certificates to plaintiff, and the property not having been redeemed from either sale, the sheriff made plaintiff a deed for the land. It is that title plaintiff insists is the paramount title, and should prevail.

It is clear the fee-bill issued in the case of Hays v. Kelley is void, under the decisions of this court in Neal v. Blanchard, 32 Ill. 503, and Eads v. Couse, 35 id. 534. It was issued for the costs of both plaintiff and defendant in that case. The clerk had no authority to issue a fee-bill for the collection from Hays of the costs made by Kelley. There was final judgment for costs in favor of Kelley, and in such cases execution is the proper and only process by which a judgment for costs can be collected. On inspection, it is seen the fee-bill in the case of Hays v. Kelley is void on its face. Being void, there could be no sale of the property under it, and in the further consideration of the case it will be treated as though there had been but one sale of the property, and that under the fee-bill in Hays v. Rittenhouse. Is the fee-bill in that case void ? Nothing appears on the face of it to show that it is. It does not appear it is for anything but for the collection of the costs made by plaintiff in that suit, and the rule is well settled a fee-bill may issue against a party to collect costs due from him to the officers rendering the services. It is said the clerk has not indicated by anything on the face of the fee-bill it is for nothing other than for the collection of costs owing by the party against whom it is issued, to the officers. That is so; but it does appear, on inspection of the writ itself, only costs made by plaintiff are included in the fee-bill issued against him. There are no costs included for the appearance of defendant, or otherwise made by him. The mere omission of the clerk to state on the fee-bill it only contains the costs of the party against whom it is issued) does not render it invalid, when it distinctly appears on the face of the writ no other costs are included. Could resort be had to extrinsic evidence given, or offered to be given, and objected to by defendants, it would appear there was no appearance by Kelley, or any one for him, and consequently no costs made by him. But disregarding all extrinsic evidence, as, perhaps, ought to be done, it does not appear on the face of the fee-bill, or otherwise, that it is void. It appears only to contain costs owing to the officers by the party against whom it is issued, and that is allowable. That being so, it was valid process, upon which the property might lawfully be sold, as was done.

Another point made against the validity of plaintiff’s bill is, that the fee-bill in Hays v. Rittenhouse, on which the property was in fact sold, was not issued until after the lapse of more than one year from the last day of the term of court at which the suit was dismissed at plaintiff’s costs, and as it does not appear that any other process had ever been issued for the collection of such costs, it is said the writ was no lien upon the property in the hands of a subsequent purchaser. The act of 1859, which has been in force from that date until the present time, provides, the clerk, on proper application, may, at any time within eleven years after the accruing of the right to issue the same, issue a fee-bill, which shall have the same force and effect as if issued within the year next succeeding. (Rev. Stat. 1874, p. 265.) The fee-bill in this case was issued on the 13th day of September, 1867, and came to the hands of the sheriff on the same day, and the property was not conveyed by the party owing the costs until December 1, 1871, so that when the fee-bill was levied on the land, and it was sold by the sheriff, it was still the property of the party owing the costs, and was subject to sale in satisfaction of the same.

No unreasonable time was permitted to elapse after the sheriff’s sale before taking out the deed by the assignee of the purchaser, and the point made against it on that account is untenable.

The judgment of the circuit court will be reversed, and the cause remanded.

Judgment reversed.


author: Mr. Justice Mulkey

text:
    Joshua T. Cox v. The People of the State of Illinois.

      Filed at Ottawa March 26, 1884.

    1. Evidence—degree of evidence in suit for bastardy—proper basis for forming a verdict. In a prosecution for bastardy, where the evidence was conflicting and a right to convict doubtful, the court, on the part of the People, instructed the jury that the People were not bound to prove, beyond a reasonable doubt, that the defendant was the father of the bastard child, and added: “If upon a consideration of all the evidence you are inclined to believe he is the father of such child, then you should so find your verdict. ” There was no other instruction appearing in the record curing the error: Held, that the instruction was erroneous. Jurors are required to decide cases according to their convictions of the truth of the matter found by their verdict, and not their mere inclinations.
    2. Bill of exceptions—presumption as to what is in the record. Where an erroneous instruction appears in the record, which states that “thereupon the court gave to the jury the following instructions, ” after which the same are set forth numbered, and the instructions for the defendant appear by a like recital, it will not be presumed that some other instruction not in the record was given which cured the error, especially where the bill of exceptions fails to show that it does not contain all the instructions.

      Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Livingston county; the Hon. Franklin Blades, Judge, presiding:
    Mr. C. C. Straw, and Mr. D. L. Murdock, for the appellant.
    Mr. R. S. McIlduff, and Mr. G. W. Patton, for the People.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This is an appeal from a judgment of the Appellate Court for the Second District, affirming a judgment of the circuit court of Livingston county, in a proceeding under the Bastardy act, instituted by Rhoda Halloek, against Joshua T. Cox, the appellant. By the terms of the judgment of the circuit court, the appellant was required to pay, for the education and support of the bastard child of which he was found to be the father, the sum of $550,—that is to say, “$100 for the first year after March the 9th, 1882, the date of the child’s birth, and $50 yearly for nine years succeeding said first year.”

The case made by the People rests almost exclusively upon the testimony of the prosecutrix. She testifies that on the night of the 4th of July, 1881, the defendant had sexual intercourse with her twice, being the first, last and only times she ever had criminal connection with any one; that as the result of such connection she became pregnant, and was subsequently delivered of the bastard child in question. Her entire statement is positively denied by the defendant. There is also independent evidence tending to show that at the time the child is alleged to have been begotten, by reason of a malformation of the genital organ essential to sexual commerce on his part,' it was physically impossible for the defendant to have had illicit intercourse with prosecutrix, as claimed by her. Under these circumstances it was highly important to the accused that the law of the case should have been fairly laid down to the jury, and this, we are of opinion, was not done.

The first instruction given for the People, to which an exception was taken at the time, is in these words:

“The jury are instructed that in this action the People are not bound to prove that the defendant, Cox, is the father of the bastard child of the prosecuting witness, Rhoda Hallock, beyond a reasonable doubt. If upon a consideration of all the evidence you are inclined to believe he is the father of such child, then you should so find your verdict. ”

Here the jury are told, if from a consideration of all the evidence they are inclined to believe the defendant was the father of the child, they should so find by their verdict, however grave and well founded their doubts might be on the subject. Evidence very slight, indeed, especially on some subjects, might give a juryman an inclination to decide in a particular way, when it would be wholly insufficient to sustain a verdict. 'Jurors are required to decide cases according to their convictions of the truth of the matter found by their verdict, and not their mere inclinations. In a case of this character we can hardly conceive of an instruction that would be more likely to mislead a jury than the one in question.

It is suggested, however, that inasmuch as the record does not affirmatively state the fact that the two series of instructions given, respectively, for the People and the defendant, were all the instructions given in the ease, this court must presume some instruction not appearing in the record was given by the court which cured the error complained of. We are ayrare of no such rule as this, and it certainly has no sanction in works of practice or the decisions of this court. On the contrary, where a party shows that an improper instruction has been given against him, which may have prejudiced his rights before the jury, it devolves on the other side to show that some other instruction was given which cured the error complained of. There would be some force in the suggestion if it affirmatively appeared the bill of exceptions did not contain all the instructions, but there is no ground for this claim, nor, indeed, is any such claim made. Upon an examination of the record relating to the instructions, we find it in the usual form. The instructions for the People are introduced with the following recital, to-wit: _ “And thereupon the court gave to the jury, on behalf of the plaintiff, the following instructions: Instructions for the People. ” Then follow the People’s instructions, numbered in the usual way, and marked “given.” The defendant’s instructions are introduced by a similar recital in the record, and are copied, numbered and marked “given, ” in the same way. The record in this respect is just like all records properly made up. When the record recites, “the following instructions were given for the plaintiff, ” setting out the instructions in numerical order, as was done in this case, the fair implication and common sense of the thing is, that the instructions thus set out in the record are all the instructions given for the plaintiff; and the same is true as to the defendant’s instructions.

The instruction in question being manifestly erroneous, the judgment of the Appellate Court must be reversed, and the cause remanded, with directions to reverse the judgment of the circuit court and remand the cause for further proceedings in conformity with this opinion.

Judgment reversed.

Mr. Justice Scott : I dissent from the reasoning and conclusion of this opinion.

Mr. Justice Walker : I hold the jury could not have been misled, as there were, two instructions that directed the jury they must believe the evidence preponderated to prove guilt, before they could convict.


text:
    Abial B. Sawyer et al. v. Solomon Moyer et al.

      Filed at Springfield March 26, 1884.

    1. Evidence—defence at law—not availing on creditor’s hilt—to impeach the judgment sought to be enforced. On creditor’s bill to set aside certain conveyances of land made by the debtor as in fraud of creditors, evidence tending to show that the debtor had been overreached in the transaction out of which the indebtedness was created, and induced to contract the debts upon which the judgments were recovered, by false representations made by some of the complainants, is not admissible. Whatever defence, if any, existed, should have been made in the actions at law.
    2. Same—burden. On creditor’s bill to set aside certain conveyances of the debtor, and from his grantees, as made in fraud of creditors, the burden of proving that the conveyances are fraudulent, and were made with intent to hinder and delay the creditors of the grantor, rests upon the complainants.
    3. Same—calling adverse party to testify—his entire testimony, favorable or unfavorable, to be considered. Complainants, in a creditor’s bill seeking to set aside certain conveyances of their debtor as fraudulent, called the defendants, who all testified that the sales were in good faith, for a valuable consideration, which was fully paid, but their answers as to where they obtained the money with which to make the purchases were very unsatisfactory. Aside from their testimony there was no evidence tending to impeach the conveyances in any considerable degree, and it was insisted they ought not to be believed: Held, that if their testimony should be received, that which made for them as well as that which was against them must be considered, and that the complainants were not entitled to the relief sought.
    Appeal from the Circuit Court of Tazewell county; the Hon. N. M. Laws, Judge, presiding.
    Mr. A. B. Sawyer, Messrs. Cohrs & Rider, and Mr. Wm. Don Maus, for the appellants:
    In so far as the bill seeks to remove and set aside the alleged fraudulent conveyances by which Mary Moyer is clothed with the apparent title to the land sought to be charged specifically with the payment of complainant’s judgments, the bill is exhibited, and should be maintained as a creditor’s bill, filed under the general equitable jurisdiction of a court of chancery in this State, according to the uniform practice therein. Story’s Eq. Jur. sec. 1481; Story’s Eq. PI. sec. 537.
    Where it is charged that the debtor has made a fraudulent conveyance, the judgment creditor may, before execution, file a bill to set aside the conveyance. Wightman v. Hatch, 17 Ill. 286; Newman v. Willetts, 52 id. 99; Shufeldt v. Boehm et al. 96 id. 560; Greenway v. Thomas, 14 id. 271; Dewey v. Eckert, 62 id. 218; Lewis v. Lanphear, 79 id. 187; Miller v. Davidson, 3 Gilm. 518.
    .Or the creditors may have the land sold, and the purchaser, if there is no redemption, may have the fraudulent conveyance " set aside in chancery. Brown v. Niles, 16 Ill. 385; Hunt v. Blodgett, 17 id. 583; Letcher v. Morrison, 27 id. 209.
    We submit that the parties’ statements, their manner and spirit in testifying, their inconsistencies, their unnatural acts, and, indeed, every act and fact relating to the conveyances to Mary Moyer, point to but one irresistible conclusion, and that one is, that the conveyances are fraudulent.
    Messrs. Prettyman & Dougherty, for the appellees:
    Where no discovery is obtained, the answer denying the matter in the bill, the bill, so far as it seeks relief on a discovery, must be dismissed. If fraud is .also charged, and other relief sought beside a discovery, the bill may be retained. Philadelphia Fire Ins. Co. v. Central National Bank, 1 Bradw. 357; United States Ins. Co. v. Central National Bank, 7 id. 428; Martin v. Dryden, 1 Gilm. 210.
    The answer of a respondent to a bill in equity praying for a disclosure, only, is conclusive upon the complainant as to the truth of its statements, and a mere inadequacy of consideration is no ground for setting aside a deed in equity, when the stipulated consideration is actually paid or received. Pollard v. Lyman, 1 Day, 156.
    The bill charges specific frauds upon the defendants. The answers, severally, positively deny them. The burden of the proof is upon the complainants. Fraud is never to be presumed, but must be proved by the party alleging it. Wright v. Grover, 27 Ill. 426.
    A party must support his bill by proof, and he is supposed to know the character of the witnesses he adduces, and having thus presented them to the court, the law will not permit him afterwards to impeach their general reputation for truth, or to impugn their credibility by general evidence tending to show them to be unworthy of belief. 1 Greenleaf on Evidence, sec. 442.
    A party can not impeach a witness called by him, by proving that he had made contrary statements out of court. Griffin v. Chicago, 57 Ill. 317; Chambers v. Warren, 13 id. 321.
   Mr. Justice Scott

delivered the opinion of the Court:

This was a creditor’s bill, and was brought by Abial B. Sawyer, and other judgment creditors of Solomon Moyer, against Solomon Moyer, Henry Moyer, Sarah Ann Moyer, and Mary Moyer, in the circuit court of Tazewell county. The recovery of judgments at law in favor of complainants, against Solomon Moyer, is set forth in the bill, and then it is alleged that at the time, and after the indebtedness to complainants was contracted, Solomon Moyer was the owner of valuable real estate in Tazewell and McLean counties, and that afterwards, but before complainants recovered their judgments at law against him, Solomon Moyer conveyed a part of his real estate to Henry Moyer, and another part to Sarah Ann Moyer; that subsequently Henry Moyer and Sarah Ann Moyer conveyed such real estate to Mary Moyer, and that such conveyances were all colorable, and made without any valuable consideration, with a view to hinder and delay the creditors of Solomon Moyer in the collection of their claims against him. It is further alleged that Solomon Moyer has now no other property, real or personal, subject to levy and sale on execution. Answering, defendants admitted the recovery of the several judgments mentioned in complainants’ bill, against Solomon Moyer, and also the several conveyances as alleged in the bill, but assert the good faith of the transactions, and that the conveyances were all bona fide sales, for a full and valuable consideration, and with no view to hinder and delay the creditors of Solomon Moyer in the collection of their just claims against him. Eeplications were filed to the answers of defendants, and the cause was submitted upon the issues made by the pleadings, and on the proofs taken. The court found for defendants, and dismissed the bill. That decision was affirmed in the Appellate Court, and complainants bring the case to this court.

No controversy is made as to the validity of the judgments at law in favor of the several complainants against Solomon Moyer, nor that the indebtedness upon which such judgments were recovered accrued prior to the conveyances made by Solomon Moyer to Henry Moyer and Sarah Ann Moyer, as alleged in the bill. Some effort was made to show that Solomon Moyer was overreached in the transaction, and was induced to contract the indebtedness by false representations made by some of complainants, and on that account the judgments were not equitably due to complainants; but the evidence on this branch of the case ought to have been rejected. Whatever defence, if any, existed, should have been made in the actions at law. As the evidence was heard before the court, it did no harm, as it will be presumed none but proper evidence was considered in the decision of the case. Before coming to the consideration of the merits of the case, it may be remarked that neither the bill nor the proof makes any case that would warrant the appointment of a receiver, and the hill, so far as it asked to have one appointed, was very properly dismissed, no matter what view may be taken of the transaction.

The only branch of the case that presents any difficulty is, whether the conveyances of real estate by Solomon Moyer to Henry Moyer and to Sarah Ann Moyer, and from Henry and Sarah Ann to Mary Moyer, have been proven to be fraudulent as to the creditors of Solomon Moyer. As has been seen, the answers of defendants assert, with the utmost positiveness, the good faith of the several transactions,—that all of the conveyances were bona fide sales, upon full and valuable considerations, and made with no intent to hinder and delay creditors of the grantor in the collection of their just claims against him. The principal evidence in the ease comes from defendants implicated in the transactions, all of whom, except Sarah Ann Moyer, were examined as witnesses before the master in chancery, to whom the cause was referred. These witnesses were all produced by complainants, and every one of them says the sales were in good faith, for a valuable consideration, which was fully paid. Many of the answers of the witnesses as to where they got the money with which to make the purchases, are very unsatisfactory, and it is argued for that reason they ought not to be believed. But whom shall we believe ? These are the most material witnesses, and if their testimony is rejected the record contains no evidence whatever tending to impeach, in any considerable degree, the fairness of the several conveyances. Should the testimony of these witnesses be considered, that which makes for them must be considered as well as that which is against them. When that is done it is seen these were actual sales in good faith, upon a sufficient money consideration, and with no intent to hinder and delay the creditors of the grantor in the collection of their claims against him. The burden of proving the conveyances fraudulent, and done with intent to hinder and delay the creditors of the grantor, rested upon complainants, and that has not been done. All of defendants examined as witnesses testify to the fairness of the conveyances, and unsatisfactory as their testimony is in some respects, there is nothing in the record that sufficiently overcomes it.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


text:
    John W. Pry v. John Pry, Sr. et al.

      Filed at Mt. Vernon January 22, 1884.

    1. Forged deed—what amounts to a forgery—erasure of name of one of several grantees. Where a person took a deed for land to one of his sons, and also to a grandson of the same name as his own, except the addition of a middle initial letter, the grantees being minors, and the grandfather, the custodian of such deed, after the death of his son, one of the grantees, erased his name, and the letter “W” in the other grantee’s name, from the deed, and put the deed, so altered and changed, on record, thereby showing a conveyance to himself, the grandfather, it was held, that the erasure was a forgery, and as such did not affect the legal or equitable title of the real grantees.
    2. Same—rights of subsequent purchaser without notice. A deed was made to John W. Pry and Hamilton Pry, for a tract of land, and placed in the bands of John Pry, a relative, for them, they being infants, after which the depositary erased from the deed the name of Hamilton Pry, and the letter “W” in the name of the other grantee, and placed the same on record. He then conveyed various parts of the land to innocent purchasers, who had no notice of the erasure in the deed, or the forgery: Held, on hill filed by John W. Pry to set aside the several conveyances as to his undivided half, as clouds upon his title, and to restore the evidence of his title, that he was entitled to the relief sought, his equitable title being prior in point of time, and he also having the legal title.
    3. Same—application of the Recording law. The provision of the statute making all deeds and other instruments affecting the title to land, void as to subsequent purchasers and creditors without notice, if not recorded in proper time, has no application to forged deeds and other instruments, as they can not affect the title to land, and are therefore not entitled to record.

      4. Allegations and proofs—as to the character of title. A bill in chancery to set aside certain conveyances of land made by one who had forged a deed by the erasure of the name of one of the grantees, alleged that the land was conveyed to the complainant and another, jointly, while the proof showed simply an ordinary deed to them, whereby they took as tenants in common, and not as joint tenants: Held, that the error was of such a technical character that a decree would not he reversed for it, especially when no such objection was made in the court below.
    5. Practice—time to object. In a case of a defective allegation of title, as, stating a joint estate instead of a tenancy in common, as shown by the proofs, a party, to take advantage of it, must make his objection in the court below, so as to afford his adversary an opportunity to amend, and failing to do so, will be held to have waived the objection. But this rule has no application when a material allegation has been omitted, or when the error goes to the substance or merits of the case.
    6. Description of land in a deed—sufficiency. A description of land in a deed as fifteen acres, “commencing at the N. W. of the N. W. S. E. of section 19,” etc., “and running south,” etc., is clearly void for uncertainty in the starling point; and a description, “the S. ¿ of the N. E. ¿ of the S. E. of section 19, etc., is also fatally defective. By making the “S. E. the “S. E. ¿,” the description would be good.
    Writ of Error to the Circuit Court of Franklin county; the Hon. Daniel M. Browning, Judge, presiding.
    The bill in this case charges, in substance, that William Pry, the father of John W. Pry, the complainant, on the 13th of August, 1862, enlisted as a soldier in the service of the United States, for three years; that about the 1st of May, 1864, the former, being then with the army in the State of Georgia, wrote to John Pry, Sr., the father of the said William, and grandfather of complainant, at Frankfort, Franklin county, this State, directing him to sell and convert into money certain personal property then in his possession, and belonging to the said William, and to invest the proceeds thereof, together with about $50 then in his hands belonging to the said William, in the south-east quarter of section 19, town 7 south, range 3 east, of land in said county, belonging to one Bailey Martin, being, of the value of $200, and also directing him to have the deed for the land made jointly to complainant and Hamilton Pry, a minor son of the said John Pry, Sr.; that in pursuance of these directions the said John Pry, on the 5th of August, 1864, purchased of the said Bailey Martin the above mentioned quarter section of land, at the said sum of $200, and paid for the same with the proceeds of said property and the money then in his hands belonging to the said William, as above stated; that the said Bailey Martin and wife, by a good and sufficient deed of that date, conveyed the land in question to complainant and the said Hamilton, in conformity with the directions of 'the said William, and that upon its execution and acknowledgment it was handed by the grantors to the said John Pry, Sr., to be kept by him for the use of the grantees therein, complainant- being then an infant about three years of age, and the said Hamilton, his uncle, near seventeen; that the said Hamilton Pry, in the month of September, 1864, died intestate, without any children or descendants of children; that shortly after Hamilton’s death, and before the deed from Martin to him and complainant had been put on record, the said John Pry fraudulently erased the “W” in complainant’s name, and the name of Hamilton Pry altogether, from said deed, thereby making it in form a deed to himself, instead of to complainant and the said Hamilton, as originally written; that afterwards, to-wit, on the 22d of August, 1871, with a like fraudulent purpose, he caused the same, in its altered form, to be recorded as a deed from Martin and wife to himself; that after the said William’s return from the army, and before said fraudulent deed was recorded, to-wit, on the 2d of March, 1865, the said John Pry, Sr., by quitclaim deed of that date, fraudulently conveyed to the said William the west half of said quarter section of land, and again on the 20th of September, 1871, by a like deed, conveyed to him another portion of the land in controversy; that on the 7th day of February, 1872, the said John conveyed, by quitclaim deed to John Pry, Jr., a son of the said John Pry, Sr., a portion of the east half of said quarter section. The bill also shows that various other parties were in possession of different parts of said tract of land, all of whom claim title, mediately or immediately, from said John Pry, Sr., through deeds executed since the said 5th day of August, 1864, when the same was conveyed by the said Martin and wife to complainant and the said Hamilton Pry, as heretofore stated, all of whom are made parties to the bill. The bill prays to have the original deed from Martin and wife, and the record thereof, corrected, and that the title to said lands be confirmed in complainant; that said deed in its altered form, and all subsequent deeds from the said John Pry to said land, or from those claiming through him, be declared null and void, and set aside as clouds on complainant’s title, and that the defendants be required to account for the rents and profits.
    The defendants filed a joint and several answer to the.bill, denying the alteration and forgery therein charged, and the defendants other than John Pry, Sr., who disclaimed all interest in the land, set up the defence they were purchasers for a valuable consideration, without notice of complainant’s rights. To this answer a general replication was filed, and the cause was heard upon bill, answer, replication and proofs, resulting in a decree finding that the land in question was conveyed by Martin and wife, on the 5th of August, 1864, to complainant and Hamilton Pry, and that John Pry, Sr., subsequently altered and changed the deed in manner and with the intent charged in the bill; but further found that all the defendants other than John Pry, Jr., were purchasers for a valuable consideration, without notice of complainant’s rights, and for that reason dismissed the bill as to them. As to John Pry, Jr., the decree was in conformity with the prayer of the bill, the court having found that he purchased with knowledge of the alteration of Martin’s deed. The complainant prosecutes this writ of error to reverse the decree of the circuit court in dismissing the bill as to part of the defendants, and in subordinating his rights to theirs on the ground they were,innocent purchasers.
    Mr. George C. Ross, and Mr. Chas. H. Layman, for the plaintiff in error.
    Mr. F. M. Youngblood, and Mr. W. J. N. Moyers, for the defendants in error.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Two questions arise on this record,—one of law, the other of fact: First, does the evidence sustain the findings of the decree,—or, differently put, do the proofs sustain the case made by the bill; and second, assuming the findings of the decree are warranted by the proofs, can the decree, as matter of law, be sustained. We will consider these questions in the order stated.

It is conceded the deed from Martin and wife, as originally written, was made to complainant and Hamilton Pry, and that it was subsequently altered by striking out the “W” in complainant’s name, and the name of - Hamilton Pry altogether. So far there is no controversy. The case, upon the evidence, therefore hinges upon the question whether the alterations in the deed took place before or after its execution. The evidence bearing on this issue is too voluminous to be set out in extenso. We must therefore content ourselves with giving a summary of what we regard as the substance of it.

By agreement of parties the original deed is submitted for our inspection. After a careful examination of it we are unable to discover anything in the character of the alterations which are manifest on the face of it, that satisfactorily indicates when the alterations were made,—whether before or after delivery. William Furgerson, the first witness in the case, testifies to a conversation between himself and John Pry, Sr., in April, 1883, in which the latter told him that William Pry wrote to him to buy the land and have the deed made to complainant, but in the same conversation claimed the erasures in the deed were made at the time of its execution, and before it was signed by the grantors. Munroe G. Neal, a son-in-law of John Pry, Sr., testifies to a conversation with him in 1879, in which the latter stated, in substance, that William Pry wrote to him to have the deed made to complainant and Hamilton Pry, and that it was so made out. W. M. Walker sw-ears that in 1869 John Pry, Sr., told him that when complainant became of age the land would belong to him; that his father’s money had paid for it, and that the deed from Martin and wife was made to complainant. James A. Doan testifies that in a conversation with him, in May, 1883, old man Pry told witness that William Pry wrote to him to buy the land and have it deeded to complainant and Hamilton Pry, and that he did so; that William Pry afterwards came home from the army, and on being shown the deed, said it was all right,—and this statement is corroborated by the testimony of William Pry. Mary Neal, daughter of old man Pry, testifies she heard him say the deed was made to Hamilton and John W. Pry, and he aimed for them to have it, and that he aimed to pay witness for her interest in the place. The testimony of this witness we regard as important in more than one respect. The circumstances which she states as having led to the conversation, in our judgment, greatly increase the probability of its truth, while at the same time it shows the alteration of the deed had become a matter of discussion in the family, and from this fact alone it is but reasonable to presume that all the family had become cognizant of the fact. It is very clear the sister understood that she had an interest in the land as heir of her brother, and assuming the deed under which her father claimed was a forgery, it was very natural he should be willing to pay her the amount of her interest in the land in order to quiet her, and prevent further discussion of the matter. David N. Willard swears that in 1863 or 1864 he was at the shop of old man Pry, and that while there he told witness he had received a letter from William Pry, directing him to buy a piece of land, and to make the deed to complainant and Hamilton Pry, and offered to show witness the letter, but witness did not read it. William Pry testifies that he wrote to his father, some time in 1864, to sell his property then in his father’s possession, and invest the proceeds in land; that his father replied, by letter, he could get the land in controversy, whereupon witness wrote again, directing him to buy it, and have the deed made to complainant and Hamilton Pry, and that his father replied he had done so; that in 1865, a few months after this correspondence, witness returned home on a furlough, when his father again informed him that he had bought the land, and had the deed made to Hamilton and John W. Pry, as witness had directed, and at the same time showed,him a deed for the land from Martin and wife to Hamilton and John W. Pry, as he had stated, and that at that time there were no interlineations or erasures on it; that he next saAv the deed in 1871, when he found the name of Hamilton Pry, and the “W” in complainant’s name, had in the meantime been erased. John Pry, Jr., was examined as a witness on behalf of the defendants, but his testimony is of little value, one way or another, except that it shows he was aware of the fact the deed in question had been changed from the way it was originally written, at the time of his purchase, in 1872.

The case thus made by the complainant is certainly a strong one, and the evidence relied, on to overcome it consists almost exclusively of the testimony of John Pry, Sr., the perpetrator of the alleged forgery. Assuming he is guilty of the offence imputed to him, it is hardly to be expected he would admit it. He does not. On the contrary, he denies it in very emphatic terms. Nevertheless, when we look at his answer, and examine his testimony in the light of his own admissions, it is established, beyond all reasonable doubt, the strength of his denial is greatly impaired. He testifies, in substance, that after considerable correspondence between himself and William Pry, the latter, in his last letter, told him to have the deed made to John W. Pry, or to himself, as he might prefer; that the deed was prepared at Benton/ in the clerk’s office, by Calvin M. Clark; that by the witness’ direction Clark commenced preparing the deed, and when about done, one Kin Harrell came in, and suggested it-would be better to have the deed made out to the witness himself, and that upon consultation between the parties present it was determined to have the deed made that way; that thereupon Clark, the scrivener, made the erasures and interlineations in the deed as they now appear upon the face of it; that this was done in the presence of Martin and wife, Kin Harrell, and witness, all of whom, including the scrivener, are dead, except witness. He further states that all that was stated by witness Willard in his testimony in this cause is true, who, it will be remembered, swore that in 1863 or 1864 John Pry, Sr., told him that he had received a letter from William Pry, directing him to have the deed made to John W. and Hamilton Pry.

Now, if, as claimed by the old man in his testimony, he got a subsequent letter directing him to take the deed in complainant’s name, or in his own name, as he might prefer, it is somewhat strange that he should, notwithstanding this change in his son’s orders to him, have directed Clark in the first place to make it to complainant and Hamilton Pry, as first directed, for by William’s last order, as claimed by the old man, Hamilton was to be left out altogether. In ordering the deed thus made out he certainly did not pay much respect to William’s last order on the subject. In the old man’s answer he claims he had the land conveyed to himself for the reason, in part, that he was paying one-half of the consideration, while his testimony shows that he paid no part of it. Again, while b,e states, in his examination in chief, the deed was about done when Harrell came up and suggested it would be better to have it made to witness, yet in his cross-examination, in which he assumes to give the exact particulars of the transaction, he says: “Cal (meaning Clark) was writing Hamilton’s name, when Kin Harrell told him to stop,” and in his examination in chief he says, as we have already seen, that Clark thereupon did stop, and the alterations and erasures in the deed were made; yet upon looking at the deed itself, which is before us, we find the name of Hamilton Pry appears in it but once, and that at the commencement, nevertheless the erasures of the pronouns representing the two grantees continue all through the deed. If, as witness claims, Clark was stopped in the act of writing Hamilton’s name, how is it we find erasures below his name,—indeed all through the instrument ?

It is also a significant fact that the deed should have been withheld from record until in 1872, without some satisfactory explanation showing why it was done. The only reason assigned for it by the witness is, that he did not have the money with which to pay the recording fee, and that he thought it was William’s place to have it done. Surely the use of a farm and home that never cost witness a cent, for five or six years, ought to have enabled him to save enough out of the rents and profits to pay for the recording of a single deed. The reason which he assigns is manifestly too puerile to receive serious consideration. It is also a singular coincidence, worthy of note, that all the persons named by witness as having been present when these alterations in the deed were made are dead, and can not therefore be called, either to sustain or contradict him. On the other hand, the testimony of one or two of complainant’s witnesses is also open to criticism, notably that of William Pry, whose conduct in the affair and connection with the suit it must be confessed are anything but creditable to him, and subject his testimony to just suspicion. But after making all due allowance for this, his statement in the main is too strongly corroborated to reject it altogether for that reason.

In any view we are able to take of the evidence, after giving due weight to every objection which has been or can be justly urged against it, we fully agree with the circuit court in holding the alteration of the deed in question occurred after, and not before, its execution and delivery.

Having determined that the case made by the bill has been sufficiently proven, as was found by the circuit court, we start out with the admitted proposition that the complainant, when an infant about three years of age, by virtue of the deed from Martin and wife, acquired the absolute fee simple title to an undivided half of the land in controversy, and it is not claimed that he has ever made any conveyance of his interest therein, or that his right of recovery is barred by any statute of limitations, or that he is in any manner estopped by anything he has said or done from asserting his rights thereto; and also with the further conceded fact that the source of title of all the defendants claiming adversely to him, is a deed from one who had no title whatever, either legal or equitable, and whose only claim of title was and is based upon a forgery committed against complainant, while an infant.

The decree dismissing the bill as to all the defendants except John Pry, Jr., we understand, as already stated, to be based solely on the ground they were purchasers for value, without notice of the want of title in John Pry, Sr., through whom they claim. Conceding this to be so, upon what principle can these claimants be said to have a better standing in a court of equity than the complainant ? By the execution of the Martin deed to the latter he became clothed with both the legal and equitable title to the premises, and as we have already seen, he has never disposed of either, or in any manner forfeited his right thereto. This clearly can not be said of the grantees of John Pry, Sr., or those claiming through him, for as to the undivided half of the land now in controversy he had neither the legal nor the equitable title,—in short, as to this interest in the land he had no title at all, and therefore he could confer none on them. Even if we were to concede defendants had an equally good equitable title with complainant, still, the position of the latter would be the better, on two distinct grounds, well recognized in equity, namely: his equitable title is prior in time, and he also has the legal title. It is true that under the operation of our recording laws a prior unrecorded deed will be postponed to a subsequent deed in the same chain of title, where the latter has been first placed upon record; and such would be the case here, if these defendants were claiming under a subsequent deed made by Martin and wife, which had been first filed for record. The reason of this is, the statute expressly makes all unrecorded deeds and other instruments affecting the title to land, void as to subsequent purchasers and creditors without notice. But this provision has no application to forged instruments, for they can not affect a title one way or the other, and are therefore not entitled to record. It would be a dangerous doctrine, indeed, to hold that one, by forging a deed from his neighbor to himself, and putting it upon record, could then, by conveying to a third party having no notice of the. forgery, confer upon the latter a good title, merely because the record showed the title in the forger. If such were the law, no man’s title would be safe. The principles of justice and public policy alike forbid the adoption of such a rule.

It follows, therefore, the circuit court erred in dismissing complainant’s bill as to part of the defendants, on the ground suggested, and the decree in that respect will therefore have to be reversed. The conclusion here reached is fully sustained by the following authorities, and others that might be cited: Pensonneau et al. v. Bleakley et al. 14 Ill. 15; Chandler v. White et al. 84 id. 435; Baird et al. v. Jackson, 98 id. 78; Buckman v. Dicker, 8 C. E. Green, 283; Arrison v. Harmstead, 2 Barr, 191; Van Amringe v. Morton, 4 Whart. 382.

It is objected by defendants in error, that the allegation in the bill that the land was conveyed to complainant and Hamilton Pry, jointly, is not supported by the proofs, for, as is alleged, the deed under which they claim shows they took as tenants in common, and not as joint tenants, and consequently hold by several titles. Technically considered, this is true, and it is conceded the allegation would have been more accurate if the bill had alleged the conveyance was made to them as tenants in common, or simply that the conveyance was made to them, without undertaking to define the legal effect of the conveyance; but the error is of such a technical character it ought not to be permitted to defeat a recovery, especially where the objection is made for the first time in this court, as is the case here. In the popular sense of the term, the conveyance was made to them jointly, though in law they took several titles. Where a technical error of this kind is relied on, the party intending to avail himself of it should make the objection in the court below, so as to afford his adversary an opportunity to amend, and if he does not do so he will be deemed to have waived it. Of course, this rule has no application where a material allegation has been omitted, or where the error goes to the substance or merits of the controversy. The present ease is one of a defective allegation, merely.

As this ease will have to be remanded, we deem it proper to call attention to certain errors or mistakes in the description of some of the property in controversy, as the same is given in some of the conveyances through which a part of the defendants claim, which seem to have escaped the notice, of counsel. It may be, however, these errors have occurred in the complainant’s bill only. We do this to afford the parties interested an opportunity of correcting the errors, however they may have occurred, if they desire to do so.

It will be kept in mind the land in controversy is the southeast quarter of the section, and that the deed from John Pry, Sr., to William Pry, of the 2d of March, 1865, was for the west eighty. After showing the conveyance of this eighty, the bill then charges that John Pry, Sr., on the 20th of September, 1871, made another deed to William Pry, conveying to him an additional fifteen acres, described as follows: “Commencing at the N. W. of the N. W. S. E. of Sec. 19,” etc., “and running south,” etc. Assuming the description of the land is properly stated in the bill, it is clearly void for uncertainty. According to the calls, the starting point would be at some point on the ten acres lying in the north-west corner of the north-west quarter of the south-east quarter, -which would, in any event, throw two-thirds of the fifteen acres.on the west eighty, which had already been conveyed to William Pry in 1865, as we have heretofore seen, or the whole of the fifteen acres might be on that eighty, depending upon the starting point chosen, which is left wholly uncertain. From other conveyances, however, we have no doubt what was intended to be said was, “commencing at the north-east corner of the north-west quarter of the south-east quarter, and running thence south, ” etc.

So of twenty acres of the land attempted to be conveyed to John Pry, Jr. It is described as “the S. j- of the N. E. % of the S. E. J.” This description is also void for uncertainty. The expression, “S. E. J,” doubtless should have been the “S. E. J.” And in conveying to him the south-east quarter of the south-east quarter, in the same deed, five acres are excepted out of the south-east corner of that forty, which do not seem to have ever been conveyed by John Pry, Sr.

Upon looking into the case of John Pry, Jr. v. John W. Pry et al. (No. 40, of the same docket and term of the present case,) we find it to be an appeal from the same decree. The appellant in that case and the plaintiff in error in this case both seek to reverse the decree in part, but in different respects and for different reasons. For convenience we have considered the two cases together, and in doing so have treated the errors assigned by John Pry, Jr., in No. 40, as cross-errors in No. 22,—the present case.

It follows from what we have said, the decree of the court below, in so far as it awarded relief as against John Pry, Jr., was proper, and to that extent it is affirmed; but in dismissing the bill as to the other defendants it was erroneous, and in this respect the decree is reversed, and the cause remanded for further proceedings in conformity with this opinion.

Decree modified.


text:
    The Ridgely National Bank v. Patton & Hamilton.

      Filed at Springfield March 26, 1884.

    1. Banking—right of application of depositor’s funds by the bank. A banker has no right to apply money on deposit in his bank to the payment of a note of the depositor payable at the bank, without the order of the depositor.
    2. Bank check—what so regarded. An instrument drawn by a depositor on a bank, in the following form, after giving the date and the name of the bank: “Pay to A and B, for account of C. & Co., ten hundred and eighteen 23-100 dollars,” and signed by the depositor, is a valid bank check, and will operate to transfer to the payees an amount of the drawers’ funds on deposit, equal to the sum named on its face. The words, “for account of C. & Co.," do not change its character as a check. A bill or note, without at .all affecting its character as such, may state the transaction out of which it arose, or the consideration for which it was given.
    3. Parties—who may sue on bank check made payable to attorneys. A bank check, payable to attorneys on account of a debt due from the drawers to the clients of the attorneys, vests the legal title in the payees named, as trustees for the clients, and a suit thereon against the bank is properly brought in the names of the payees.
    4. Actions—pursuing several remedies at the same time. A debtor gave his check on a bank for the amount of his indebtedness, payable to the attorneys of the creditor, which the bank refused to pay, alleging an agreement of the debtor to apply his deposits on other indebtedness. It was held, that the bringing of an action by the creditor against his debtor did not estop him from bringing an action on the check in the name of his attorneys, the payees, against the bank. Although the law will not allow a party to have more than one satisfaction for his debt, yet in many cases it permits him to carry on several remedies at the same time.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Sangamon county; the Hon. C. S. Zane, Judge, presiding.
    Messrs. Palmers, Robinson & Shutt, for the appellant:
    A check is a brief draft or order upon a bank or banking house, directing it to pay a certain sum of money. 2 Parsons on Notes and Bills, 57; 2 Daniell on Negotiable Instruments, 583.
    The use of the words, “for account of Lewis Coleman & Co.,” indicates that the plaintiffs have no interest in the paper. They make the payees mere collecting agents for the drawers and their appointees, for whose account the money is ordered to be paid. These words deprived the paper of the negotiable qualities of a check. Munn v. Burch, 25 Ill. 40; Bickford v. First National Bank, 42 id. 238; Brown v. Leckie, 43 id. 497.
    By electing to pursue the remedy by attachment against the debtor, the creditor is estopped from suing the bank on the check. They are bound by their election. Bigelow on Estoppel, 503; Littlefield v. Brotan, 1 Wend. 398; S. C. 17 id. 168; Morris v. Rexford, 18 N. Y. 552; Rodermund v. Clark, 46 id. 354; Jewitt v. Petel, 4 Mich. 508; Bank of Beloit v. Beale, 34 N. Y. 473.

      Messrs. Patton & Hamilton, pro sese:

    The check is negotiable. The words, “for account of Lewis Coleman & Co., ” were inserted by the drawers for their own convenience, as a memorandum, to show the purpose for which it was given. The extent of appellees’ interest in it is of no possible consequence to appellant, and can not serve it as a defence. Caldwell v. Lawrence, 84 Ill. 161.
    The money being on deposit, it was the duty of the bank to pay it on demand. The legal title was in appellees, because the check was payable to them. It indicated with certainty who was to receive the money, and that is all that was necessary. Daniell on Negotiable Instruments, sec. 99; Adams v. King, 16 Ill. 169.
    Negotiability is not of the essence of checks, but at most, of optional quality. Story on Notes, sec. 488.
    A check operates to transfer the fund to the holder, and after demand and refusal, the holder may sue the bank in his own name, and recover. Brown v. Lechie et al. 43 Ill. 497.
    A banker has no right to apply money on deposit to the payment of a note of the depositor payable at the bank, without the order or check of the depositor. Wood & Co. v. Merchants’ Savings, Loan and Trust Co. 41 Ill. 207.
    Although the law will not permit a party to have more than one satisfaction for his debt, yet in many cases it permits him to carry on several remedies at the same time. Delahay v. Clement, 3 Scam. 201; Branigan v. Rose, 3 Gilm. 123; Palmer et al. v. Harris, 100 Ill. 276: West et al. v. Fleming, 18 id. 248.
    To constitute an estoppel there must be acts or admissions by the party inconsistent with the title or claim he proposes to set up, and there must be action by the other party upon such acts or admissions, and an injury to him by reason thereof. Smith v. Newton, 38 Ill. 230; Ball v. Hooten, 85 id. 159.

      Again, before the appellant can invoke the doctrine of estoppel, it must show its officers acted in good faith towards appellees. Had they told appellees that Kimber, Ragsdale & Co. had funds on deposit sufficient to pay the check, the attachment would not have been instituted; but they denied having such funds. This was not good faith, and appellant can not take advantage of it. First National Bank of Quincy v. Ricker, 41 Ill. 439; Hefner v. Vandolah, 57 id. 520.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

This was an action brought by Patton & Hamilton, against the Ridgely National Bank, to recover the amount of the following check:

“The Ridgely National Bank, Springfield, Rlinois:
“Pay to Patton & Hamilton, for account of Lewis Coleman & Co., or order, ten hundred eighteen T2^ dollars.
$1018^0- Kimber, Ragsdale & Co.”

Upon trial in the circuit court, without a jury, judgment was rendered for the plaintiffs for the full amount of the check, which,- on appeal to the Appellate Court for the Third District, was affirmed, and the defendant appealed to this court.

The facts appearing are, that Patton & Hamilton were attorneys at law, and had in their hands for collection a claim in favor of Lewis Coleman & Co., against Kimber, Ragsdale & Co., merchants, of Springfield, Illinois; that on the 11th of January, 1883, after banking, hours, the latter deposited with the bank $1061.61, and afterward, on the same day, gave to Patton & Hamilton the check for $1018.23, to pay said claim, and in the forenoon of January 12, 1883, the latter presented the check at the bank, and payment was refused. The bank, after the check was presented, in the same forenoon, applied the whole balance of Kimber, Rags-dale & Co.’s deposit to the payment of a note made by them to N. H. Ridgely & Co., which was in the possession of the bank. Immediately after the presentation and non-payment of the check, the plaintiffs gave notice of its non-payment to the drawers, and at once commenced suit by attachment against them, (Kimber, Ragsdale & Co.,) in the name of Lewis Coleman & Co., in the county court of Sangamon county, on the original demand against Kimber, Ragsdale & Co. The writ of attachment was levied upon property of the latter sufficient in amount to pay the claim of Lewis Coleman & Co. The levy was afterward released by the giving of a bond by Kimber, Ragsdale & Co., under section 15, chapter 11, of the Revised Statutes of 1874, for the payment of whatever judgment should be rendered against them in the suit. The bond was given on January 24,1883, and on February 24, 1883, the present action was commenced. At the time of the trial of the present action in the court below, the attachment suit of Lewis Coleman & Co. was still pending in the county court.

There is a claim of right on the part of the bank to apply the deposit of Kimber, Ragsdale & Co. to the payment of the note of N. H. Ridgely & Co. against them, on the ground that the note was given for money advanced by the bank, and really belonged to the bank, although payable to N. H. Ridgely & Co. We regard that as a controverted question of fact whether the bank or N. H. Ridgely & Co. were the owners of the note, which we must take to have been found by the Appellate Court against the bank, and which we are precluded by the statute from considering, the decision of that court upon controverted questions of fact being conclusive. The same must be said, too, in reference to the claim of there having been a previous agreement or understanding between the bank and Kimber, Ragsdale & Co. that the deposits of the latter should be applied to the payment of the notes of N. H. Ridgely & Co. Clearly, a banker has no right to apply money on deposit to the payment of a note of the depositor payable at the bank, without the order of the depositor. Wood & Co. v. Merchants’ Savings, Loan and Trust Co. 41 Ill. 267.

The only legal questions which we find to be presented for our determination, are in respect of the character of the paper writing sued on, and the legal effect of the bringing of the attachment suit by Lewis Coleman & Co.

It is denied by the defendant that the instrument sued on is a check. Whether we take the definition of a check as given by Parsons, “A check is a brief draft or order upon a bank or banking house, directing it to pay a certain sum of money, ” (2 Parsons on Notes and Bills, 57,) or by Daniell, “A check is a draft or order upon a bank or banking house, purporting to be drawn upon a deposit of funds, for the payment, at all events, of a certain sum of money to a person, or his order, or to bearer, and payable instantly on demand, ” (2 Daniell on Reg. Inst. 588,) we fail to see wherein the paper in question falls short of being a check. Defendant asserts it is not such because of its containing the words, “for account of Lewis Coleman & Co.,” and that plaintiffs have no interest in it except as “collecting agents” for Lewis Coleman & Co. We do not perceive that the presence of the words above named in the check detracts from its quality as such. They introduce nothing of contingency or uncertainty with respect to the payment, the sum payable, or person to whom it is to be paid. It still remains an order, in all its absoluteness, for the payment of a certain sum of money to the payees named, and is payable instantly on demand. The words, “for account of Lewis Coleman & Co., ” would seem to have been inserted for the convenience of the drawers, to show the purpose for which the check was given, or to show the equitable interest of Lewis Coleman & Co. A bill or note, without affecting its character as such, may state the transaction out of which it arose, or the consideration for which it was given. (1 Parsons on Notes and Bills, 44.) The words in question seem to do no more. The legal interest was in the plaintiffs, and the extent of their interest was of no consequence to defendant, and can form no defence to the suit. It is said plaintiffs are not holders for value. They stand, in this respect, upon the same footing with Lewis Coleman & Co. The same consideration of value there would have been for the check, had it been given to them, belongs to it in the hands of the plaintiffs, to whom it was given for the benefit of Lewis Coleman & Co.

The instrument, then, being a check, it operated, under the rule established by this court, to transfer to the payees an amount equal to the sum expressed upon its face, of the deposit of Kimber, Bagsdale & Co. with the defendant, and after demand and refusal the payees might sue the bank in their own name, and recover. Bickford v. First National Bank of Chicago, 42 Ill. 238; Brown v. Leckie, 43 id. 497.

But it is contended by defendant, that even if the instrument in question be taken to be a check in the legal sense, the bringing by Lewis Coleman & Co. of the attachment suit on their original demand, against Kimber, Ragsdale & Co., had the legal effect to preclude the right to maintain the present suit. It is insisted that plaintiffs were the mere agents of Lewis Coleman & Co. to collect their original demand against Kimber, Ragsdale & Co.; that they had no right to accept anything from Kimber, Ragsdale & Co. in payment of the demand against them, but money; that they took the check as a conditional payment of the demand of Lewis Coleman & Co., only, the condition being the check should be paid on presentation; that upon non-payment of the check, Lewis Coleman & Co. had the right to repudiate payment by the check, and resort to the original demand, which was done by beginning the attachment suit, and thereby they availed themselves of the breach of the condition upon which the check was accepted as payment; that plaintiffs’ positions are entirely inconsistent, and that in the case of inconsistent rights and remedies there may be resort to the one or the other, at the party’s election,-and the election of one precludes resort afterwards to the other. There is much of seeming force in defendant’s position, but still we are not prepared to say that it should be sustained. Under the rule which obtains in this State the check must be regarded as an assignment, to its amount, of the deposit of Kimber, Ragsdale & Co. /in the hands of the bank. Treating the check, although dishonored, as an assignment, would seem to reconcile all the inconsistency of position which there is supposed to be in the case. As an assignment, plaintiffs must have the right to make it available to them as such, so far as may be. The subject of the assignment being in question, the drawers asserting and the drawees denying there were funds on deposit, it made necessary the result of a suit against the bank, to determine whether there was anything transferred by the assignment, or not. In the meantime, it would seem proper to allow the remedy to be pursued against the drawers on the original demand against them, as that otherwise might be lost in case the assignment should turn out to be ineffective. Although the law will not permit a party to have more than one satisfaction for his debt, yet in many cases it permits him to carry on several remedies at the same time.

The defendant has not been prejudiced in its rights by the commencement of the attachment suit. It has not been led to occupy a position which it would not have taken but for the commencement of such suit. We perceive no element of estoppel, as is claimed, in the bringing of that suit.

It is said that the effect here is to make the check a security for the payment of the original demand, which would be in subversion of the intention of the parties; that the check was designed merely as a means of obtaining an immediate payment of the money to satisfy the original demand, and that it was not in the thought of the parties to give a security for the payment of the demand, and that the check failing to accomplish the only purpose for which it was drawn, was of no further effect. Although the expectation might have been that by the check the money would be obtained with which to pay the original demand of Lewis Coleman & Co., and there might not have been the specific intention to give security for the payment of such demand, yet the check which was given should be allowed all its legal effect, and such must he taken to have been the intention of the parties. The circumstance of the check being made payable to plaintiffs, who were attorneys at law, and hut mere agents for the collection of the demand against Kimber, Ragsdale & Co., which is dwelt upon as in favor of the defence, should not, in our view, make the case to differ, in a legal aspect, from what it would have been had the check been made payable to Lewis Coleman & Co. themselves. The plaintiffs are trustees of the latter.

The judgment of the Appellate Court must be affirmed.

Judgment affirmed.