author: Mr. Justice Scott

text:
    The Springfield Marine and Fire Insurance Company v. Mildred A. Peck.
    Filed at Springfield March 28, 1882.
    1. Error&emdash;who may assign&emdash;only party injuriously affected. On bill for separate maintenance by a wife, the relief prayed for was granted, and a decree rendered also against a bank, which was made a co-defendant, for a portion of moneys paid over by it to the assignee of the husband after the service of an injunction on it, the assignment being only colorable, from which decree the bank alone appealed: Held, that the bank could not call in question the decree against the husband, or urge that the sum allowed was excessive, or that there was error in allowing a sum in gross, as it had no interest jn such questions.
    2. Injunction&emdash;to • preserve property for alimony or separate maintenance. Where a wife, in her bill for a divorce or for separate maintenance, alleges that her husband is about to place his property beyond the jurisdiction of the court to control it, a court of equity will assume, by temporary injunction, to preserve the property within its control, so that it may be charged by a decree for alimony or separate maintenance, if granted.
    3. Same&emdash;party paying money in violation of injunction&emdash;liability. AVhere a bank, in a suit by a wife against her husband for separate maintenance, was enjoined from paying to the husband, or to any other person upon his order or indorsement, any money on deposit in the bank, generally or specially, by the husband, and the bank, after the service of the injunction, paid the sum deposited with ‘it to an assignee of the certificates of deposit,- it was held, that the bank paid the same at its peril, and the assignment of the certificates being shown to be merely colorable, the bank was held liable for the deposit, the same as if it had kept the same.
    4. Assignment—when payment is enjoined. While it is true that a bank issuing certificates of deposit is not bound, before paying the same to an indorsee, to ascertain whether the assignment was in good faith, yet if it is enjoined from paying the deposit to the depositor, or his assignee, it is its duty not to pay out the funds so deposited until the parties claiming the same can have an opportunity to contest, by interpleader or otherwise, the good faith of the assignment.
    5. Same—of a hank deposit. Where a depositor draws his check on his general account on a bank having funds deposited by him to an equal or, greater sum than is called for by the check, the transaction will operate to transfer the sum named to the payee, who may sue for and recover the amount from the bank in his own name, and in like manner the assigning of a certificate of- deposit transfers to the assignee the whole sum deposited, as stated in the certificate.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.
    Messrs. Stuabt, Edwabds & Bbown, for the appellant.
    Mr. William E. Hughes, for the appellee.
   Mr. Justice Scott

delivered the opinion of the Court:

The Mil in this case was brought by Mildred A. Peck, in the circuit court of McLean county, against her husband, Philo W. Peck, for separate' maintenance. The proceeding is had under a statute of the State.

The marriage of the parties, and the facts that are alleged would warrant complainant in living separate and apart from her husband, are all set forth with sufficient definiteness in the bill: It is conceded the proof offered in support of the allegations of the bill in this regard is sufficient to warrant a decree for separate maintenance. The decree in this respect is not called in question, either by any assignment of error, or by the argument of counsel.

It will be noticed the bill contains an allegation defendant “had money, notes and real estate, ” and on information and belief it was charged' he had on deposit in the “Springfield Marine and Fire Insurance Company” the sum of $2500, but whether on general or special deposit, was not known. It was also charged defendant had declared his intention of departing from the State and going to parts unknown, where he could not be compelled to support complainant and her children. The bank in which it was represented defendant had money deposited, was named as a co-defendant with him, and a temporary injunction was asked to restrain defendant, among other things, from assigning the certificates of deposit which he held, or from collecting the same from the bank, and also restraining the bank from paying them. The prayer of the bill in that regard was allowed. Service of the injunction was made on the bank on the 10th day of January, 1881, and on the principal defendant on the 14th day of the same month. The bank answered the bill, and after disclaiming any knowledge of the relations between the parties, admitted that on the 4th day of December, 1880, defendant deposited in the bank $2500, and there were issued to him three certificates of deposit, in the usual form, for the amount deposited, payable'to the order of himself, on demand, on the return of the certificates properly indorsed, and further stated the certificates were presented to the bank by Sandford H. Little, “properly indorsed” by the depositor, and were paid in due course of business. Evidence introduced on this branch of the ease shows the certificates of deposit were neither assigned nor paid until after the service of the writ of injunction on both the "bank and defendant, Peck. No answer was made by Peek, and as to him the bill was taken for confessed.

On the hearing the court found the material allegations of the bill to be true, and entered a decree for separate maintenance. Among other facts specifically found by the court in its decree, it was found defendant had left the State, and that he had on deposit in the defendant bank, at the date of the service of the injunction upon it, the sum of $2500, for which he held certificates of deposit in the usual form, that the indorsement of such certificates to Little was colorable, and that Little paid the identical money over to defendant shortly after he drew it out of the bank. As for separate maintenance, the court decreed complainant should have the net rents from certain real estate, and that the bank should pay to her for the same purpose $1500 of the money her ■ husband had on deposit in the bank at the date of the service of the injunction. The bank prosecuted an appeal from the decree rendered, to the Appellate Court for the Third District, where the decree of the circuit court was affirmed, and now it brings the case to this court on its further appeal.

Whether the circuit court erred in allowing complainant an excessive amount for separate maintenance, or in allowing a sum in gross in lieu of maintenance, are questions in which it is apprehended the bank, prosecuting this appeal has no interest. It is plain no one except the defendant out of whose estate payment is to be made, could complain of the decree in these respects, and he has not joined in this appeal. The circuit court, under the statute, had jurisdiction of the subject matter of the suit, and by service of process it had jurisdiction of the persons of the parties, and hence its decree is valid and binding on all persons until it is reversed on the application of some one directly interested. The decree, if erroneous in these respects, could only affect injuriously the husband, whose property is appropriated by the decree, and he is not now complaining. Had the bank retained the money deposited with it to abide the result of the litigation, it would have been immaterial to it whether it should return the money to its depositor, or pay a portion of it to complainant under the decree of the court for separate maintenance. It could make no possible difference to the bank how the fund might be divided, or to whom it should be paid.

It is insisted the injunction was improperly issued in this case, and one reason assigned is, complainant had no specific lien on any property of her husband. A class of cases is cited in support of this proposition, that hold a creditor at large, or before judgment, is not entitled to the interference of a court of equity, by injunction, to prevent the debtor from disposing of his property in fraud of such creditor. Conceding, as may be done, the correctness of the doctrine insisted upon, it is not perceived what application it can have to the case in hand. A principle applicable to a contract creditor can have no appropriate application to a contest between husband and wife, either as to the preservation of the property for alimony, in case of a divorce, or for separate maintenance. The cases have no likeness to each other. Where the wife in her bill for divorce alleges the husband is about to place his property beyond the jurisdiction of the court to control it, a court of equity has always assumed, by temporary injunction, to preserve the property within its control, that it may be charged by a decree for alimony, should a divorce be granted. • No reason is perceived why the same thing may not be done where the wife only asks for separate maintenance. Without the restraining order of the court, the final decree, in many cases, would be wholly unavailing to complainant, and the wife, in many instances, would be left without support for herself and children, in case the husband chose to depart from the State and take his property -with him, or make other disposition of his property, before final decree could be obtained. Certainly the law will permit no such wrong as that, if the aid of a court of competent jurisdiction is invoked.

Another point relied on is, the bank, in paying the certificates to the assignee of the party making the deposit, violated no mandate of the court. This is a misconception of the scope of the injunction writ, and of the evidence as to what was in fact done. It is apparent the scope of the restraining order of the e'ourt was comprehensive enough to embrace the funds on deposit, regardless of the form of the transaction. The prayer of the bill was, and the writ is quite as broad, the bank “be restrained from paying to Philo W. Peck, or to any other person upon his order or indorsement, any money now on deposit in said bank, generally or specially, to the credit of the said Philo. ” There could be no mistake as to the meaning of the order of the court. The officers of the bank must have known they were required to retain the money deposited by Peck at the time the certificates were issued to him. That is the plain reading of the writ. But the argument in favor of the position taken is, the relation between the bank and Peck was not that of depositor and depositary, but of debtor and creditor. The facts are not as the argument assumes them to be. It is said no deposit account of Peck would, or did, appear on the books of the bank. How that may be is not known to this court, as no evidence was offered by either party as to how the books in fact were kept, nor as to what they did show concerning the funds placed in the bank by Peck. The certificates showed on their face that Peck had deposited a certain sum of money with the bank. It must be the books of the bank show, in some way, the transaction. It is a matter of no consequence whether the funds deposited in such cases are credited to the “depositor” by name, or to the “certificate account.” An entry is certainly made in some way to show the transaction, and no matter how it is done, it is a deposit, in the strictest sense of the term. It is therefore immaterial whether the relation existing is defined to be that of depositor and depositary, or of debtor and creditor. The fact certificates of deposit are negotiable under the laws of this State, as are promissory notes and bills of exchange, certainly does not prove the party had no funds, on deposit with the bank issuing them. On the contrary, it does affirmatively appear, by the writing itself, the person to whom such a certificate may bé issued has funds on deposit, payable, on demand, to himself or his assignee, and certainly the bank is as familiar with that fact as is the holder of such a certificate. It is a matter of business experience, with which every one transacting that kind of business is familiar, that where the deposit is general the funds are payable, on demand, to the depositor, or to whom he may direct on his check. The rule is well understood that when a depositor draws his check on his general account on a bank having funds of his, to an equal or greater sum than the check, it operates to transfer the sum named to the payee, who may sue for and recover the amount from the bank in his own name; and in like manner the assigning of a certificate of deposit transfers to the assignee the whole sum deposited, as stated in the certificate. It is therefore plain the bank had on deposit, at the time of the service of the injunction upon it, funds belonging to Peck, as the evidence shows he had not then assigned his certificates to any one.

It is also insisted a bank issuing such certificates of deposit is not bound, before paying the same to an 0indorsee, to investigate and determine whether the assignment was in good faith. Most assuredly not; but when a bank is enjoined from paying the sum deposited with it, either to the depositor or to his indorsee, it is its duty to obey the mandate of the court, and not to pay out the funds deposited with it until the parties claiming the same can have an opportunity to contest, by interpleader or otherwise, the good faith of the assignment. That is precisely what the bank ought to have done in this case. To do otherwise was to act at its peril. It appears the bank, either inadvertently or willfully,—most likely the former,—paid out the funds in its possession at the time of service of the injunction, in violation of the mandate of the court. It now turns out, the assignment of the certificates of deposit to Little was not in good faith, but was a mere contrivance adopted to get the funds out of the bank for the benefit of the depositor himself. The mandate of the court enjoined upon the bank to hold the funds in contention until its further order in the premises, and its order should have been observed. The funds will be treated as still in the possession of the bank. It is no answer to say it has paid out such funds to the assignee of the depositor, in defiance of the authority of the court. The decree bf the circuit court is clearly right, and must be obeyed.

The judgment of the Appellate Court will be affirmed.

'Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    William B. Parker v. John B. Enslow.

      Filed at Springfield March 28, 1882.

    1. Consideration—for compromise of a supposed cause of action. In a suit upon a promissory note given in compromise of a threatened, suit for a personal injury, in which the consideration was assailed, the court, on behalf of the plaintiff, instructed the jury, that if they believed from the evidence that the plaintiff on, etc., in good faith supposed he had a cause of action against the defendant, on account of personal injuries which he believed resulted from the conduct of the defendant, and thereupon threatened to sue the defendant on account thereof, and thereupon the difference between them was compromised, and the defendant executed the note sued on in consideration that the plaintiff would not sue him for such injuries, and the plaintiff accepted the note in settlement of such claim, such compromise and settlement constitute a good and lawful consideration for such note: Held, that there was no error in such instruction; that the words “cause of action” were equivalent to “good cause of action;” that there was no error in using the word “supposed” instead of “believed," and that it was not open to the objection that it assumed that personal injuries were received by the plaintiff, and that he believed they resulted from the conduct of the defendant.
    2. Negligence or illegal act—liability for putting powder in tobacco. The putting of powder in smoking tobacco left in a box on the counter of a store, apparently for use, whether a mere thoughtless act for purpose of amusement, or a malicious act with an intention of doing harm, is extremely dangerous in its tendency, and can not be excused, and a person injured thereby has such a claim for damages as to afford reasonable ground for a valid compromise, and promise to pay by the wrongdoer. Even if the party had been taking the tobacco as a trespasser, the other party’s act was not justifiable as a measure of prevention.
    3. Promissory note—its validity when given in compromise. A promissory note given in settlement of a threatened suit for a personal injury, in a case where the payee supposed or believed that he had a cause of action, which note is in good faith given and accepted as a compromise of that supposed cause of action, is supported by a sufficient consideration, and its pay-ment may be enforced.
    4. Evidence—relevancy. In an action on the case to recover for injury to the plaintiff’s eyes, caused by putting powder into a box of tobacco from which the plaintiff filled his pipe, the defendant offered to prove that for several years prior to the alleged accident the plaintiff had been an habitual drunkard, which the court refused to permit: Held, no error, there being no offer to show that plaintiff’s eyes were affected from intemperance, instead of from the explosion of the powder.
    5. Practice—compelling party to submit to physical examination. In a suit to recover damages for an injury to the plaintiff’s eyes, there is no error in the refusal of the court to compel the plaintiff to submit his eyes to the examination of a physician in the presence of the jury. The court has no power to make or enforce such an order.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Greene county; the Hon. Albert G. Burr, Judge, presiding.
    Mr. James B. Ward, for the appellant:
    To support an agreement for the avoidance of a suit on a compromise, the promisee must have had an honest belief that he had a good cause of action. It is not sufficient to believe he had a cause of action. Mulholland v. Bartlett, 74 Ill. 62; Miller et al. v. Hawker, 66 id. 187; McKinley v. Watkins, 13 id. 144; Wade v. Simeon, 2 C. B. 548; Edwards v. Baugh, 11 Mees. & Wels. 641.
    The instruction on that subject was erroneous. Evans v. George, 80 Ill. 51; Cushman v. Cogswell, 86 id. 62; Chesney
      v. Meadows, 90 id. 430; Moore v. Wright, 90 id. 470; Peoria Life Ins. Co. v. Dill, 91 id. 174.
    Under the circumstances of this case appellant was not liable. The law regards the negligence of the visitor or customer, and his intrusion upon the private business of another, the cause of the injury, and provides no remedy. Murray v. McLean, 57 Ill. 378; Zoebish v. Tarbell, 10 Allen, 385; McKee v. Bidwell, 74 Pa. St. 218; Victory v. Baker, 67 N. Y. 366; Pierce v. Whitcomb, 48 Vt. 127; Southcote v. Stanley, 1 Hurl. & N. 247.
    That the court should have required the plaintiff to submit to an examination of his eyes by competent persons, see 1 Greenleaf on Evidence, secs. 37, 82; Wade v. Sayre, 52 How. 334; Mehado v. Brooklyn City R. R. Co. 30 N. Y. 370; Coxe’s Criminal Cases, 297; Coke’s Lit. 8; Cro. Eliz. 227; 9 Co. Rep. 30; 2 Rolle’s Abr. 573, 578; 2 Peere. Wms. 591; State v. Garrett et al. 71 N. C. 87.
    Mr. W. M. Jackson, and Messrs. Orendoree & Creighton, for the appellee:
    A settlement of a claim or demand, made without fraud or oppression, is binding and conclusive on the parties. Heaps v. Dunham, 95 Ill. 588; 3 Addison on Contracts, sec. 1279.
    There was no error in refusing to allow Dr. Crow to examine the eyes of the plaintiff, if for no other reason than that Dr. Crow testified he was not an expert in such matters.
    Fault is found with the second instruction, because the word “good” was not in it. It was the law as given, and was not calculated to mislead; besides, the word “good” was in defendant’s first and second instructions.
    Fault is also found with the word “supposed, ” in the same instruction. This word is used by this court in the same sense in McKinley v. Watkins, 13 Ill. 144. This word is synonymous with the word “bglieved.”
   Mr. Justice Scholfield

delivered the opinion of the Court:

This case comes before us for review by appeal from a judgment of the Appellate Court for the Third District, affirming a judgment of the circuit court of Greene county. The action was assumpsit, upon a promissory note for $1000, executed by appellant to appellee, and the defence interposed was, that the note was executed without any consideration.

The evidence on behalf of appellee tended to establish that appellee, for a number of years, had been engaged in the retail grocery trade,- including therein the sale of tobacco, in a building owned by him at Kane, in Greene county; that he sold out and transferred his stock and business, and rented his store-room to appellant, who thereupon succeeded him in such trade; that, for about twelve years before and up to the time of such sale and transfer, it had been the custom to keep a box of smoking tobacco on the counter for the use of the public, and this custom was known to appellant, and continued by him after such sale and transfer; that it was the habit of appellee to pass into appellant’s store-room and fill his pipe from this box, when convenient, and that pursuant thereto, at the time of the occurrence here involved, he passed into the store-room and filled his pipe with tobacco from the box, but, without his knowledge, powder had been mixed with the tobacco, and so, when he applied a match to light his pipe, an explosion was caused, which seriously and permanently injured appellee’s eyes. When, subsequently, appellee reproached appellant for having put the powder by which the explosion was caused, in the tobacco, appellant admitted that he had done so, but sought to mitigate his conduct by saying that he had only done it for a joke. Appellee threatened, and was intending, to sue appellant for damages in consequence of the injury thus caused to his eyes, and as a compromise and settlement of that cause of action this promissory note was executed.

It is not important that there may have been other evidence in some respects contradictory of this, for since we are not allowed to investigate controverted questions of fact in this class of cases, we must assume that the evidence established all that there was evidence tending to establish.

The second instruction given at the instance of appellee is as follows:

“The court also instructs the jury, for the plaintiff, that if they believe, from the evidence, that the plaintiff, in the month of November, 1878, in good faith supposed he had a cause of action against the defendant, on account of personal injuries which he believed resulted from the conduct of the defendant, and thereupon threatened to sue the defendant on account thereof, and thereupon the difference between them was compromised, and the defendant executed the note sued on in consideration that the plaintiff would not sue him for such injuries, and the plaintiff accepted the note in settlement of such claim, such compromise and settlement is a good and lawful consideration for such note. ”

Three objections are urged against this instruction, and they will be noticed in the order of their presentation by counsel for appellant:

First—It is contended it is not sufficient that plaintiff supposed “he had a cause of action.” He must have supposed “he had a good cause of action, ”—or, in other words, the omission of the word “good,” before the word “cause,” is fatal. This in untenable. “By this phrase [cause of action] is understood the right to bring an action, which implies that there is some person in existence who can assert, and also a person who can lawfully be sued. * * * There is no cause of action till the claimant can legally sue. ” * * * Bouvier’s Dictionary, title, “Cause of Action.” If, therefore, a person have a legal right to sue, he must necessarily have a “good” (using that word, as it obviously is always used in this connection, in the sense of “legally sufficient, ”) “cause of action.” If he have no legal right to sue, he has not merely a bad cause of action, but no cause of action. So, “good cause of action” can mean no more than “cause of action,” and the word “good,” in that connection, is hence clearly superfluous.

Second—But it is also objected that the use of the word “supposed, ” in this connection, is fatal—that the word should have been “believed.” We'think, used in the connection in which “supposed” is here used, they mean substantially the same thing, or, at all events, so nearly so that a jury could not be misled by the use of “supposed” instead of “believed.” The second definition of “supposed,” as given by Webster in his Unabridged Dictionary, is, “imagine, to believe, to receive as true. ” And the same authority gives as the second definition of “believe,” “to think, to suppose.” And, in substance, Richardson’s definitions are the same. Moreover, in Stapleton v. Stapleton, 1 Atkyns, 12, Lord Hardwicke says: “In the case of Cann v. Cann, it was laid down by Lord Macclesfield, that an agreement entered into upon a supposition of a right, or of a doubtful right, though it often comes out that the right was on the other side, shall be binding, ” etc. And in McKinley v. Watkins, 13 Ill. 143, the court, in speaking of this class of actions, said: “It is immaterial whether the plaintiff could have recovered in such action or not. If he honestly supposed that he had a good cause of action, the compromise of such right was a sufficient consideration to uphold a contract fairly entered into between the parties, irrespective of the question as to who was in the right.” The word “suppose,” in the instruction, is used in the same sense that “supposition” and “supposed” are used in these cases, and, we think, clearly with as much accuracy. We must hold this objection also untenable.

Third—It is likewise objected that this instruction assumes that personal injuries were received by the plaintiff, and that plaintiff believed they resulted from the conduct of the defendant, instead of leaving it to the jury to find whether plaintiff had sustained personal injuries, and whether he believed they resulted from the conduct of the defendant, etc. This objection, in our opinion, originates in a misapprehension of the effect of the language of the instruction. The instruction expressly leaves it to the jury to determine, from the evidence, whether plaintiff, in good faith, supposed he had a cause of action against the defendant on account of personal injuries, which he believed resulted from the conduct of the defendant, and thereupon threatened to sue the defendant on account thereof, and that the note was given in settlement of this threatened litigation, etc.

If the facts were as we have before said we must assume the Appellate Court found them to be, there can be no doubt appellant was liable in some amount to appellee. The putting of powder in smoking tobacco, whether a mere thoughtless act for purposes of amusement, or a malicious act with an intention of doing harm, was necessarily extremely dangerous in its tendency, and can not be excused. Even if appellee had been taking the tobacco as a trespasser, this was not justifiable as a measure of prevention. Wharton on Negligence, sec. 346; Wood on Nuisance, sec. 135. There was, therefore, such a claim on behalf of appellee as to lay a reasonable ground for the .appellant making the promise. Mulholland v. Bartlett, 74 Ill. 62; McKinley v. Watkins, supra. And the only question to be settled was, whether the appellee honestly supposed or believed (using those words as convertible) that he had a cause of action, and whether the promissory note was, in good faith, given and accepted as a compromise of that cause of action. McKinley v. Watkins, supra; Sigsworth v. Coulter, 18 Ill. 204; Honeyman v. Jarvis, 79 id. 322.

We do not think the instruction could have misled the jury, and the giving of it was not, therefore, error.

Lile objections are urged to the several other instructions given at the instance of appellee, and, for the reasons already expressed, we deem them also untenable.

The questions of, fact are settled by the decision of the Appellate Court, and they include the intentions of both parties in executing and accepting the note.

Objection is also urged that the court erred in modifying appellant’s instructions as asked. Without stopping to inquire whether the language of the first instruction modified was objectionable as asked, we think the modification could not have prejudiced appellant. It is in almost literally the language of the law as laid down in McKinley v. Watkins, supra, and this applies with equal pertinency to the second modified instruction.

The criticism on the third modified instruction is frivolous. We do not think it possible that appellant could have been prejudiced by that modification.

Appellant’s fifth instruction was properly refused, because it assumes that if appellee took the tobacco of appellant without authority of appellant, then he can not recover, which we have seen is not the law.

It is urged, as an additional objection, that the circuit court erred in refusing to allow appellant to show that appellee, for several years prior to the alleged accident, had been an habitual drunkard. In this we see no error. There was no offer to prove that appellee’s eyes were affected from intemperance instead of from the explosion. The fact that he was an habitual drunkard, if such was the fact, in nowise impaired his legal right to recover for personal injuries.

Complaint is also made that the court refused to compel appellee to submit his eyes to the examination of a physician in the presence of the jury. There was no error in this. The court had no power to make.or enforce such an order.

On the whole we perceive no error in the record, and the judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Per Curiam:

text:
    Emma E. Warrick et al. v. Charles S. Hull.

      Filed at Springfield March 28, 1882.

    1. Power op sale—waiver by filing cross-bill to foreclose. Where, on bill to enjoin the executor of a mortgagee from making sale of mortgaged premises under a power of sale in the mortgage, the executor files a cross-bill to foreclose the mortgage, this may be treated as a waiver of any purpose to proceed under the power.
    2. Witness—competency—against one defending in a representative capacity. On bill by the wife of a mortgagor against the executor of the deceased mortgagee, to enjoin the sale of the premises under a power in the mortgage, neither the complainant nor her husband is a competent witness to show that she never in fact acknowledged the. mortgage purporting to release her homestead.
    3. Acknowledgment—evidence to overcome certificate. The certificate of an officer authorized by law to take acknowledgments of deeds, mortgages or other instruments, is prima facie evidence of such acknowledgment by the persons purporting to be the makers of such instruments, and is "to be regarded as having great- and controlling weight until it is overcome by clear, convincing and satisfactory proof. The testimony of the grantor alone is not sufficient to overcome the certificate.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Macon county; the Hon. C. B. Smith, Judge, presiding.
    Mr. H. Pasco, for the appellants.
    Messrs. Roby, Cuten & Vail, for the appellee.
   Per Curiam:

On the 3d day of March, 1876, Silas E. Warrick was the owner in fee of an eighty-acre tract of land, upon which he then resided with his family, consisting of a wife and children, as their homestead, and where he still resides with them. Being indebted to John W. Hull for borrowed money, Silas E. Warrick, on the 3d day of March, 1876, executed and delivered to Hull his promissory note for the sum of $1500, payable two years after date, with interest at the rate of ten per cent per annum, payable annually, and undertook to secure the same by mortgage on the land on ■which he resided as his homestead, which mortgage contained the usual power of sale in case default should be made in the payment of the note and interest. The mortgage appeared to be signed and regularly acknowledged by Silas. E. Warrick, and Emma, his wife, and was recorded in the proper office in the county where the land is situated. After the death of John W. Hull, and after the note secured by the mortgage had become due, and default had been made in the payment of the note and interest, Charles S. Hull, executor of the estate of John W. Hull, deceased, advertised the land for sale under the power contained in the mortgage. The original bill in this case was then filed by Emma E. Warrick, wife of the mortgagor, to enjoin the proposed sale of the property. Two grounds are set forth in the bill as the basis of the relief asked: First, that Charles S. Hull, as executor of the estate of John W. Hull, could not rightfully make any sale of the property under the power contained in the mortgage; and second, that she had never acknowledged the mortgage as required by the statute in order to release her homestead in the premises, and as to her homestead the deed was inoperative. After filing his answer to the original bill, the executor filed a cross-bill, making the original complainants defendants thereto, praying to have the mortgage foreclosed. The cause was heard on the original and cross-bills, the answers of the respective defendants thereto, and the proofs, and the circuit court dismissed the original bill and decreed a foreclosure of the mortgage on the executor’s cross-bill. That decree was affirmed in the Appellate Court, and now the original complainants, and who 'were made-defendants to the cross-bill, bring the whole case before this court on appeal.

One point made by the parties appealing is, it was error in the circuit court to dismiss their original bill. Since the executor has filed his cross-bill to foreclose the mortgage, that part of the original bill which asked to have the proposed sale under the power contained in the mortgage enjoined because the executor could not rightfully execute the power, is not a matter of any consequence. The filing of the cross-bill may be treated as a waiver of any purpose to make a sale of the property under the power contained in the mortgage. The other relief asked by the original bill is the same as the defence to the cross-bill. The question whether the wife of the mortgagor acknowledged the mortgage before an . officer, so as to release her right of homestead in the premises, may be considered as arising either on the original bill, or on the defence to the cross-bill.

On the hearing of the cause, the court, over the objection of the executor, permitted the mortgagor and his wife to testify touching the wife’s acknowledgment of the mortgage. Under the decision in Crane v. Crane, 81 Ill. 165, this was improper. The mortgagee was dead, and the adverse party to the witnesses testifying was his executor, defending in that capacity. The statute absolutely forbids them to become witnesses on their own motion, and on their own behalf, in such cases. No state of case existed that made their testimony competent, under any exception to the disqualifying section of the statute.

The only remaining question is, whether the wife of the mortgagor acknowledged the mortgage before a proper officer, that being indispensable under the statute to the .release of her right of homestead, unless the possession of the premises be abandoned or surrendered to the grantee. It has always been held the certificate of an officer authorized by law to take acknowledgments to a deed, mortgage or other instrument, is prima facie evidence of such acknowledgment by the makers of such instruments, and it is to be regarded as having great and controlling weight until it is overcome by clear, convincing and satisfactory proof. The testimony of the grantor alone is not regarded as sufficient to overcome the certificate of the officer certifying such acknowledgment. Something more is required. In this case the officer that certified the acknowledgment of the wife of the mortgagor is dead, and, as has been seen, by a statutory rule of evidence, neither the mortgagor nor his wife can be a witness in his or her own behalf, over the objection of the executor defending. Excluding, then, as must be done, the testimony of the mortgagor and his wife, there remains only the testimony of one witness to impeach the integrity of the certificate of acknowledgment made by the officer. That, in the opinion of a majority of the court, is not sufficient to invalidate the acknowledgment. In taking acknowledgments of deeds, mortgages and other instruments, an officer acts under the sanction of his official oath, and his certificate of official acts, required by law to be made, ought to be regarded as of as high a grade of evidence as testimony given under oath. The officer acting in this case has since died. Although deprived of the testimony of the officer on the witness stand, there remains the presumption that will always be indulged as to the certainty of an officer’s acts done in the capacity in which he is serving. After his death his certificates of official acts must be heard to speak for him, otherwise there would be no security for titles acquired under instruments required by law to be acknowledged before such officers. Treating the certificate of the officer in this case since his death as certainly equivalent to the testimony of one living witness, the evidence would seem to be equally balanced on the question of the wife’s acknowledgment of the mortgage. The rule on this question, as stated in Marston v. Brittenham, 76 Ill. 611, is, “to impeach a certificate, the evidence should do more than produce a mere preponderance against its integrity in the balancing of probabilities,—it should, by its completeness and reliable character, fully and clearly satisfy the court that the certificate is untrue and fraudulent. ” The evidence in this record, fully considered, falls short of producing such an effect on the minds of a majority of the court, and the judgment of the Appellate Court must be affirmed.

Judgment affirmed.


author: Mr. Chief Justice Craig

text:
    Caroline Benneson et al. v. Jonas B. Aiken.

      Filed at Springfield March 28, 1882.

      1. Deliveby of a deed. A deed may be delivered, although not actually passed over from the hands of the grantor to the hands of the grantee. No particular form is necessary to constitute a delivery. It may be by acts without words, or by words without acts, or by both. Anything manifesting the intention of the parties that it shall presently become operative and effectual, constitutes a sufficient delivery.
    2. Where a deed was made and acknowledged by a husband and wife, for lands of the wife, and placed by the wife in the husband’s hands, leaving him to determine when, if ever, it should be delivered, and he failed to exercise that discretion in his wife’s lifetime, and the wife, after the date of the deed, built a large house on the premises, in which she and her husband resided until her death, after which he passed over the deed to the grantee: Held, that the deed never took effect for want of delivery in the lifetime of the wife, and that upon her death his authority to deliver was revoked.
    3. Conveyance—inuring of after acquired title. A quitclaim deed of a party to land without any covenants of warranty, will not pass an after acquired title by the grantor.
    Writ of Error to the Circuit Court of Adams county; the Hon. S. P. Shops, Judge, presiding.
    Mr. William H. Benneson, for the plaintiffs in error:
    When a grantor makes an absolute delivery of a deed to a stranger for the use of the grantee, parting with all control over it, and the deed is beneficial on its face to the grantee, an acceptance by the grantee will be presumed. Wiggins v. Lusk, 12 Ill. 132; Union Mutual Ins. Co. et al. v. Campbell, 95 id. 267; Rivard et al. v. Walker et al. 33 id. 413. And further, as to delivery of deeds, see Bryan et al. v. Wash et al. 2 Gilm. 557; Souverbye v. Arden, 1 Johns. Ch. 256; Masterson Ill. 72; Morrison v. Riley, 22 id. 610; Rawson v. Fox et al. 65 id. 200.
    Messrs. Marsh & McFadon, for the defendant in error:
    Under the law in force in 1866, to make a wife’s conveyance of her real estate valid, her husband was required to join with her in its execution and delivery.
    The date of the delivery of a deed is its true date, no matter when it bears date or was acknowledged. Bryan v. Wash et al. 2 Gilm. 557; Whitman et al. v. Henneberry, 73 Ill. 114; Whittaker v. Miller, 83 id. 381; Blake v. Fash, 44 id. 305; 3 Washburn on Real Prop. (3d ed.) 257, sec. 23. And see, also, upon the question of delivery, Bryan v. Wash, 2 Gilm. 565; Wiggins v. Lusk, 12 Ill. 135; Union Mutual Ins. Co. v. Campbell, 95 id. 281; Herbert et al. v. Herbert, Breese, 359; Schœnberger’s Executors v. Zook, 34 Pa. St. 28; Jackson v. Cleveland, 15 Mich. 10; Gold v. Day, 94 U. S. 412.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

While the record in this case is somewhat voluminous, yet the principal, and indeed the only, question of any importance is, whether a certain deed, made May 16, 1866, by Charles A. Savage, and Elvey W. Savage, his wife, purporting to convey the premises in question to Anna Wells, was delivered.

It appears that Charles A. Savage married Elvey Wells in 1843. Levi Wells, the father of Mrs. Savage, died in 1859, intestate, leaving Anna Wells, his widow, and three daughters, Caroline Benneson, Ann E. Keeler, and Elvey Savage, as his only heirs. At the time of his death Levi Wells owned in fee 160 acres of land adjoining the corporate limits of the city of Quincy. In December, 1859,'the three daughters of the deceased, by quitclaim deed, partitioned the quarter-section of land among themselves. The premises described in the deed of May 16, 1866, is that portion of the quarter which fell to Elvey Savage in the division. Charles A. Savage failed in 1857, and has remained insolvent since that time. In 1861 he conveyed, by quitclaim deed, his wife not joining in the deed, the premises to Anna Wells. On the 16th day of May, 1866, Savage and his wife executed and acknowledged a deed purporting to convey the premises to Anna Wells. Elvey Savage never had any children, and on the 19th day of July, 1873, she died intestate. If the deed of May 16, 1866, was delivered, of course she at the time of her death had no interest in the premises. If it was not delivered, then she died seized of the premises, and her husband inherited one-half of the same, which was liable to be reached by the bill filed by complainant. It is not claimed that there was any actual delivery of the deed to Anna Wells before the death of Elvey Savage. Indeed, the proof shows that she had no knowledge of the existence of the deed until after her daughter’s death.

After the deed was signed and acknowledged by Savage and his wife, Savage took the instrument and placed it in a safe in his office in Quincy, where it remained until after the death of his wife. Mr. Savage, in his evidence, testified that the delivery of the instrument, and the time when the delivery should be made, were left entirely with him. On his re-direct examination he testified as follows:

Int. 1. “In your cross-examination something has been said of conversations in connection with that deed of 1866. If Mrs. Elvey Savage attached any conditions or gave you any directions as to when that deed should be delivered or become her deed, except so far as it was left optional with you to determine, please state what directions or conditions she did attach or make about the delivery of the deed. ”
A. “She never left any directions.”
Int. 2. “Then I understand, at all times prior to her death, and after she signed that deed, you had, with her consent, the full power to determine when, if ever, that deed should be delivered. ”
A. “I did.”

These are the leading circumstances under which the deed was signed by Savage and his wife, and placed in the possession of Savage, and it is contended that as Savage had no interest in the land, it being the sole property of the wife, he is to be regarded in the transaction as a stranger, and where a grantor places a deed in the hands of a stranger, with directions to deliver the same at his pleasure to the grantee (the deed being beneficial to the grantee on its face), it is a good delivery. A delivery is essential to the validity of every deed, but a deed may be delivered, although not actually passed over from the hands of the grantor to the hands of the grantee. Such being the case, it is often a question of much difficulty to determine whether a deed has been delivered or not. In Bryan v. Wash, 2 Gilm. 557, it was held that no particular form is necessary to constitute a delivery. It may be by acts without words, or by words without acts, or by both. Anything which clearly manifests the intention of the grantor and the person to whom it is delivered, that the deed shall presently become operative and effectual, that the grantor loses all control over it, and that by it the grantee is to become possessed of the estate, constitutes a sufficient delivery.

There is no evidence in this record that it was intended by the grantors in the deed that it should become operative, and vest the title in the premises in the grantee named in the deed. Mrs. Savage, the owner of the fee, according to the evidence, left it to the discretion of her husband to determine when, if ever, the deed should be delivered, and as he failed to exercise that discretion until 1873, after the death of his wife, his act was then a nullity. The conduct and acts of Mrs. Savage and her husband after the deed was made, which are proper to be considered, seem to establish beyond a doubt that there was no intention on their part to part with the title to the premises. In 1866 and 1867 a large house was erected on the premises by Mrs. Savage. She and her husband moved into this house and occupied it, exercising all the acts of ownership over the property after the deed ivas made as before, and this continued until the death of Mrs. Savage. These acts are inconsistent with the theory that-Mrs. Savage intended that the deed of May, 1866, should be regarded as a conveyance of the property from the time she signed and acknowledged the instrument and placed it in her husband’s hands. It is, perhaps, true that the presumption is, in the absence of proof, that a deed is delivered at its date; but that presumption can have no bearing here, as the evidence shows that the deed was not delivered until after the death of Mrs. Savage, when a delivery could bind no one. Had this deed been delivered to Mr. Savage to hold for the benefit of the grantee, and to be passed over to her at some definite time, the title to the land would no doubt have passed; but such was not the case. The deed was placed in the hands of Savage, with power in him to determine when, if ever, it should be delivered. This power he never exercised until it was revoked by the death of his wife, and no title passed by the instrument.

There is another view that may be taken of the transaction. Mrs. Savage could not convey the land unless her husband joined in the execution and delivery of a deed of conveyance. He and his wife were joint grantors. The possession of the deed after it was made out was' a joint possession. Under such circumstances no title could pass, for the reason that the grantors retained the custody and possession of the instrument. If a man signs and acknowledges a deed, hut makes no delivery, merely retains it in his possession until his death, when it is found among his papers, no one would pretend that such an instrument would pass title, and yet there is no substantial difference between such a transaction and the one under consideration.

It is also claimed that the title which Savage inherited upon the death of his wife inured to Anna Wells, under a deed he had made to her in 1861. The deed he made in 1861 was a mere quitclaim deed, containing no covenants whatever, and under the ruling of this court in Holbrook v. Debo, 99 Ill. 372, a subsequently acquired title would not pass to the grantee.

Some minor objections have been made to the rulings of the court, but we see no merit in them.

The decree of the circuit court is correct, and it will be affirmed.

Decree affirmed.


author: Mr. Justice Walker

text:
    Richard M. Longfellow v. Henry V. Moore et al.

      Filed at Springfield March 28, 1882.

    1. Contbact—can not rest partly in writing and partly in parol. A contract can not rest partly in writing and partly by verbal understanding between the parties. Hence, all prior propositions and negotiations are superseded by the written contract. If any material portion of the agreement is omitted, a bill may be filed to correct the same.
    2. Same—party must elect to purchase within the time prescribed. Where, by a written agreement, one has the option to purchase land by a day named, on certain terms, by declaring his intention so to do, by written notice, within the time specified, and fails to elect to purchase within the time, the owner is not bound to sell to him, and may impose such new terms as he chooses, and if the other party does not accept such new terms within the time fixed, but simply expresses a willingness to buy at a reduction of interest in the deferred payment, he can not, after the time extended, enforce the contract, or offer to sell to him, without showing an equitable excuse for ¿he delay.
    • 3. Same—estoppel—by agreement to extend time of performance. A party who agrees to extend the time for the performance of»a contract, and puts the other party off his guard, will be estopped from taking advantage of its non-performance in the time first agreed on. The other party will have the extended time in which to perform.

      i. Tender—sufficiency—not good when too late. After the time has passed within which one is allowed the privilege of electing to purchase land on certain terms, a tender and offer to perform comes too late; and when the contract is, that on the first payment being made a conveyance is to be given the p'urchaser, who is there to give notes secured by mortgage on the land, a tender of the cash payment, without the notes and mortgage, is unavailing towards procuring a specific performance.
    5. Mortgage—satisfaction. Where a mortgagor of premises conveys the same to the holder, of the notes secured in discharge of his indebtedness, and takes a lease from his grantee, and a contract giving him the privilege of purchasing the land in a certain time on certain terms, the original mortgage will be satisfied, and can not be invoked by the mortgagor on a bill to enforce specific performance of the contract to sell.
    Appeal from the Circuit Court of Piatt county; the Hon. C. B. Smith, Judge, presiding.
    This was a hill -in equity, filed in the circuit court of Piatt county hy the appellant, seeking to have a deed executed by him and his wife to appellee Henry V. Moore, for the land in controversy, declared a mortgage. The bill recites the purchase by Longfellow of the lands of Isaac Williams for $9000, payment of $2000 cash, and the execution of three notes, each $2333.33, due, respectively, in one, two and three years from the date, February 20, 1875, and the execution of a mortgage by Longfellow to secure the notes; recites the purchase of. the notes by appellee H. V. Moore, and the recovery of a judgment for $5669.21 at the September term, 1878, of -the Piatt circuit court, by Moore against Longfellow, upon the two notes due in two and three years ; alleges that on October 8, 1878, appellant, and appellee H. V. Moore, made a verbal agreement, to the effect that in lieu of said judgment and the other note not due, appellant was to pay Moore $8500, as follows: $1000 February 20, 1879, $1600 one year thereafter, $2000 two years thereafter, and the balance, $3900, in three years thereafter; that to secure these sums of money appellant and wife were to convey the lands to Moore, upon the payment of $1000, on February 20, 1879, Moore was to reconvey to Longfellow, and Longfellow was then to make Moore a mortgage to secure the payment of said sums of money; alleges the extension of time upon each of said payments one year, about the 20th of February, 1879; alleges that in consideration of the extension of time for the payment of said sums, an agreement of Longfellow to pay Moore rent instead of interest, the rent to be $700; alleges the lands, when purchased by'Longfellow, were wild, and the expenditure of about $2000 in improving the same; the tender of $1000 to Moore, February 20, 1880, and Moore’s refusal to accept it, and brings the money into court; the making of a lease by Moore to Longfellow for the premises at the time of the making of the agreement for extension of time, and the commencement of an action of forcible detainer to recover the possession of the premises. The bill then prays that the deed from appellant and wife be declared a mortgage, that Moore be required to accept the $1000 tendered, and that appellant be permitted to execute notes and mortgage to Moore to secure the balance of the purchase money, and a general prayer for relief.
    The answer of Moore admits the purchase alleged in the bill, by appellant from Williams, the making of the notes and mortgage, as alleged in the bill, by Longfellow to Williams, and the purchase of the notes by him, and alleges the assignment of the mortgage by Williams to him, and the recording thereof; admits the recovery of the judgment, as alleged, upon the two notes maturing in two and three years ; denies the making of the agreement alleged by said bill to have been made October 8, 1878, at that or any other time; admits the making of the deed by Longfellow and • wife to him, but denies that it was made as a security, and alleges he took by the deed absolute title in fee; denies the extension of time upon terms as alleged in the bill; denies in consideration. of the payment of rent in lieu of interest the time was extended.
    The answer avers, that in consideration of the surrender to appellant or cancellation of the note maturing four years after date, the satisfaction of the said judgment, and the payment of the costs of said judgment, the appellant agreed that he and his wife would convey said lands to Moore in fee simple; avers the surrender or cancellation of said note, the satisfaction of the judgment, in these words: “This judgment settled by conveyance of NJ- sec. 32, T. 18, E. 6, Nov. 7th, ’78. Henry V. Moore;” and the payment of the costs, and the making, on the same day, of the deed by appellant and wife, and the filing of deed for record on same day; avers verbal notice by appellant to Moore of his inability to comply with said agreement in the payment of the $1000, and agreement to extend time, the lease of the land for the cropping season of 1879 to appellant by Moore, and avers there was no consideration for the agreement to extend the time; avers that some time after, appellant requested Moore to furnish material to build a fence, which he did; avers the surrender by Longfellow to Moore of the agreement, and, in consequence of legislation abolishing the power of sale in trust deeds, and the reduction of the rate of interest to eight per cent, an agreement on the part of Moore to make a deed for the lands to appellant, and on the part of the appellant to execute notes, as provided in the said agreement, secured by trust deed to Moore previous to July 1, 1879, the time said laws would go into effect, the first of said notes, however, was to cover the costs of said fence, as well as the $1000 payment on the land; avers the making of the deed by Moore and wife in pursuance of said last agreement, and the refusal of appellant to make the notes or the trust deed; pleads the Statute of Frauds and Perjuries.
    Messrs. Season & Blinn, and Mr. Albert Emerson, for the appellant:
    The deed, though absolute on its face, is but a mortgage securing the indebtedness due from Longfellow to Moore, and this is so whether the defeasance signed by Moore embodies the true agreement or not. The deed and defeasance bear the same date, were executed at the same time and in pursuance of the same agreement, and the consideration in the deed is the same Moore claimed was owing him. Miller v. Thomas et al. 14 Ill. 428; Preschbaker v. Feaman, 32 id. 481; Harbison v. Houghton, 41 id. 523; Clark v. Finlon, 90 id. 246.
    If once a mortgage, it must ever bear that character, and Longfellow would have a right of redemption. But if it was no security, but an agreement to resell, time is not made of the essence of the contract, and no forfeiture had been declared before the time of payment was extended. Longfellow did tender the $1000 and cost of fence, with interest thereon, within the time extended. It thereupon became the duty of Moore to accept the money and reconvey the land, as he had agreed to do, and the court below should have so decreed, and made the injunction perpetual.
    Mr. S. R. Reed, for the appellees:
    At the time the deed was made to Moore, the obligations of the parties were put in writing, as evidenced in the written agreement, and it will be conclusively presumed that the entire contract of the parties was embraced in the writing. 1 Greenleaf on Evidence, see. 275; Lane v. Sharp, 3 Scam. 566; Magee v. Hutchinson, 2 Gilm. 266; Kimball v. Custer, 73 Ill. 389; Merchants’ Ins. Co. v. Morrison, 62 id. 242.

      While a deed, absolute in form, may be shown to be a mortgage, yet the party making the allegation is always required to make strict proof, and slight and unsatisfactory evidence will not suffice to change a transaction given by the parties all the forms of a deliberate bargain and sale. Smith v. Cremer, 71 Ill. 186; Sharp v. Smitherman, 85 id. 153; Remington v. Campbell, 60 id. 516.
    To change the character of the deed, it must be clearly proven that it was made to secure a debt. Lendauer v. Cummings, 57 Ill. 200; Price et al. v. Karnes, 59 id. 277.
    It is true that Moore agreed to extend the time of payment one year, but it was upon certain terms, which appellant never performed. He contends by his bill it was extended upon a certain agreement or terms, which the evidence fails to show. The allegations and proofs must correspond. Mosier v. Norton, 83 Ill. 519.
   Mr. Justice Walker

delivered the opinion of the Court:

From all of the evidence in the case wé are compelled to conclude that the written agreement signed by appellee and accepted by appellant was the agreement of the parties. It is one of the most, familiar rules to the profession that a contract can not rest partly in writing and partly by verbal understanding between the parties, hence all prior propositions and negotiations are superseded by the written contract. If in its preparation any material portion of the agreement is omitted, a bill may be filed to correct the agreement; but there is no such mistake alleged or attempted to be shown in this case. We must therefore receive the written agreement signed by appellee as the agreement of the parties.

The principles of estoppel would not permit appellee to throw appellant off of his guard, and thus obtain an inequitable advantage, by agreeing to extend the time for appellant to perform the contract, and then insist on it as it was written, and the evidence in this case shows that time was extended one year on all of the payments, and appellee is estopped from insisting on a performance at the times specified in the agreement. Appellant therefore had the extended time within which to perform his part of- the agreement, but this verbal agreement made no other change in the written agreement than the time for its performance. Appellee so understood it when he had the papers prepared for execution according to the extended time. So did appellant when he demanded a performance of the agreement.

According to the terms of the written agreement, .appellant had until the 20th day of February, 1879, to purchase on the terms specified, but if he determined to so purchase, the agreement, in terms, required him to declare- such intention by notice in writing, and the written agreement required appellant to make his election, and to give the written notice of his intention to purchase, by the 20th of February, 1879. But he never did give such a notice. He, in July, 1879, verbally demanded the deed, some five months after the time for his election had expired according to the terms of the contract. But it may be said that appellee, by endeavoring to get appellant to make the purchase, and the latter agreeing to do so, before the 1st of July, waived the time specified in the agreement. This is true, but it was but an extension of the time until the last of June. It was in his power to insist on appellant’s accepting the offer and closing up the purchase by the day named in the agreement, and appellant, had appellee not extended the time, could not after that date have compelled him to sell, unless he could have shown circumstances that would afford an equitable excuse for the delay. None are shown in this case, and it is hard to conceive how such an excuse could be shown for failing to give the notice, and demand the deed on an offer to execute the notes and mortgage.

The time, then, having expired for appellant to elect to purchase, appellee was not bound to sell, and he then had the power to impose such terms as he chose, and appellant having previously failed to elect to purchase, could have accepted the new terms or not, as he chose. He did not, but was willing, as we infer from the evidence, to have done so at a reduction of interest on the deferred payments from ten to eight per cent. He seems to have evaded meeting appellee to close it up at ten per cent, as he agreed, until the law reducing the rate of interest to eight per cent became operative. He then demanded a fulfillment of the contract, but appellee had not extended the time for him to elect to purchase until the 1st of July, but insisted it should be closed before that time, according to the terms of the written agreement with the extended time for the payments. He urged and endeavored to-get appellant to purchase on those terms, without success. He informed appellant that it must be closed before the first day of July, because the law forbade the taking of ten per cent interest after that date.

It is, however, urged, that appellant, after the 1st of July, 1879, tendered the first payment, with the cost of material for the fencing, amounting to $1190, and demanded a deed. We have seen that he had no right to elect on or after the 1st of July, and the tender came too late; but if it was not, it was not sufficient, because he did not tender the notes and mortgage, according to the terms of the written agreement. Appellee was not required, by any agreement appellant claims to have been made, written or verbal, to convey the land, unless the deferred payments were secured, nor was appellee required to have the notes and mortgage prepared ready for appellant to execute. It was his duty to prepare, execute and tender them, even had he been legally entitled to make a tender. It is therefore manifest that this attempted tender was wholly insufficient.

Appellant’s counsel say, that when appellant purchased of Williams, he gave a mortgage to secure the unpaid purchase money, and appellee became its owner by purchase and assignment, and once a mortgage always a mortgage. We are wholly at a loss to see any application such principles have to this case. . The bill .is not ■ framed to have the Williams transaction declared a mortgage, or to be permitted to redeem from it, but it is to have the contract for a purchase specifically executed, and a complete answer would be, that the parties, by mutual agreement, canceled the indebtedness and mortgage, and appellant conveyed the "premises to appellee, and appellant rented them at the sum of $700 per annum, took a lease, and occupied them as appellee’s tenant. If this was not a satisfaction and termination of the mortgage, it is impossible to conceive what would have that effect. Nor did the agreement to give appellant the option to purchase within a specified time, and upon specified terms, revive it as a mortgage. Is it possible to suppose, after the satisfaction of the mortgage, appellee could have, at any time, foreclosed as on a mortgage ? Surely not. And if not a mortgage in appellee’s favor, it surely could not be in appellant’s favor. If a mortgage, it must be mutually so as to both parties.

A careful inspection of this record fails to disclose any error, and the decree of the court below is affirmed.

Decree affirmed.


author: Mr. Justice Dickey

text:
    Andrew Wilson v. Mary O. Wilson.

      Filed at Springfield March 28, 1882.

      Alimony—giving lands in fee—extent of allowance. Where the wife brings no means into the marriage, and derives none by inheritance after-wards, but the property accumulated is made through the husband, it is not proper, on granting the wife a divorce, to give her part of the husband’s real estate in fee. In such case the court should inquire into the condition, necessities and resources and income of the parties, respectively, and direct, for the time being, the custody and use of the homestead and household goods as may seem just and proper, and fix such alimony, to be paid from time to time, as the proofs may show to be fitting, and within the power of the defendant to pay. It seems that such alimony should not exceed one-half of the .husband’s income.
    Writ of Error to the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.
    Mary 0. Wilson filed a bill against her husband, Andrew Wilson, for divorce, charging habitual drunkenness; also, extreme and repeated cruelty. ■ He answered, denying the charges, and filed a cross-bill, seeking a divorce upon charges made therein against his wife, of adultery. Her answer denies these charges. The issues were tried by a jury, and a verdict rendered in favor of the wife upon all the issues. After overruling a motion for a new trial, the circuit court dismissed the cross-bill, and rendered a decree granting the wife a divorce, upon her original bill, and upon a subsequent hearing made orders’ granting to the wife alimony, and property in lieu of alimony, the particulars of which appear in the opinion of the court. Andrew Wilson brings the record here on error, and seeks a reversal of, the decree.
    Mr. Wm. A. Day, and Mr. Francis M. Wright, for the plaintiff in error.
    Mr. J. E. Cone, for the defendant in error.
   Mr. Justice Dickey

delivered the opinion of the Court:

The proofs upon the trial before the jury are all preserved in the record, and the instructions given to the jury, and we are asked to hold that the circuit court erred in refusing to grant a new trial. After a careful consideration of the same, we find no sufficient ground to sustain this position. It is true that the proofs in support of the charges against the plaintiff in error are not of a very conclusive character, and might well have permitted a different finding, but we can not say that the jury were not warranted in the conclusion at which they arrived. It is also true that the circumstantial evidence against the wife was quite forcible, still the contradictory testimony was positive, and if true, fully supported the finding in her favor on the issues under the cross-bill. We find no ground for reversing the decree granting the divorce.

As to the disposition made in the matter of alimony by the decree, we think the circuit court erred. The proofs show that Andrew Wilson is a man who has lost one leg, is unable to work on a farm,, and has no trade or profession, and they do not show affirmatively any capacity in him to earn money. It further shows that his wife had no property at the time of their marriage, and it does not appear that she has received any since from any person other than her husband. It shows that since their marriage her husband bought a lot, taking a conveyance of the title to her, which she now holds, and on which is a shop; that this property is rented at $96 a year. The value of this shop property is variously estimated by the witnesses at from $400 to $600. The rental value would seem-to indicate that it is worth at least $600, for at that price its rent amounts to sixteen per cent upon the price. Its purchase price a few years ago was $860.

The entire property of the husband consisted of, first, a homestead, worth at least $750, it would seem from the proofs; second, of the equity of redemption in eighty acres of land worth about $2500, subject to a mortgage for $1120, which was then due, indicating the value of this equity as about $1400; and third, of the furniture in the homestead, worth, say $275. By the decree as to alimony the wife is given the fee in the homestead, worth, say $750,—with all its furniture, worth, say $275,—leaving her the owner of the shop bought with his money, worth $600, amounting in all to not less than $1625, while the plaintiff in error was left without money, but owning an equity of redemption in eighty acres of land, worth, say $1400, and burdened with an order of the court to pay to appellee, or her counsel, $100, and otherwise in debt to the amount of $1050—in all $1150. This decree leaves him, if he has success in selling his equity in the land at its value, worth about the sum of $250, with which to begin life anew,—in other words, the worldly possessions of both the parties, at the time of the decree, amounted in value, over the debts and liabilities, to about $1875, all acquired by the means of the husband. Of this value, by the decree, she is given in perpetuity about six-sevenths thereof, and to him is left about one-seventh. This does not seem to have been a reasonable or equitable adjustment of the equities.

Again, while it has been said that under some circumstances .it may be the province of the court to give to the divorced wife a portion of property in fee, in the adjustment of alimony, yet certainly it ought not usually to be done. Alimony proper is a share, for the time being, of the income, or the payment of an annuity in installments, for the support of the wife, and should usually be kept in such condition that the same may be, from time to time, modified by such order of the court as changes of condition may, from time to time, indicate to be proper and reasonable. We see nothing in this case to take it-out of the regular and general rule, or to authorize a departure therefrom.

Bishop on' Marriage and Divorce says, that “the rule as to proportion of alimony to income, as settled in England, varies from one-half (which is the highest, but not unfrequently allowed where the bulk of the property came originally from the wife, and where there is no power in the court to restore any part in specie,) to one-third, between which points it appears mostly to vibrate, though at some times considerably lower.” In Ross v. Ross, 78 Ill. 404, it is said: “If the property was not bought with the wife’s money, there is nothing in the case calling for a divestiture of the fee:” Indeed, the cases are very rare .where the fee in lands held by the husband should ever be required to be transferred to the wife, unless she has some special equity in that particular land, arising from the purchase having been made with her money, or from some other cause, substantially placing the husband in the position as to that property equivalent to that of a trustee holding in his name for the wife, or in a position in its nature equitably equivalent thereto. In such cases, though the form of the decree may be that of adjusting the question of alimony, the substance is more in the nature of the enforcement of a trust. There is nothing in this case of that character. The property of the husband here not only was not bought with her money, but she holds property in her name bought by him with his own money. The income from that property ought to be taken into consideration in fixing alimony for her, and the amount to be enjoyed annually by her, including the income from this property to which she has title, ought not to exceed, in any event, the one-half of the sum of his income and that income, added together.

So much of said decree of the circuit court in this case as grants to the said Mary O. Wilson the fee of the lot four (4), in block five (5), in the original town of Philo, and so much thereof as gives to her the title to the household goods and furniture pertaining to the then home of the said Andrew Wilson and said Mary O. Wilson, and so much of that decree as requires a conveyance to be executed by said Andrew Wilson, or by the master in chancery, transferring the title to said lot from, said Andrew Wilson to said Mary O. Wilson, is therefore reversed and set aside, and in all other respects the decree of the circuit court is affirmed, and the cause must be remanded, with directions to the circuit court to inquire, by the oath of witnesses, into the present condition and necessities, and into the present resources and -income, of the parties, respectively, and to make such order, not inconsistent with the views herein expressed, as to the custody and use, for the time being, of the homestead property, and of the household goods and furniture, as may seem just and proper, and make such further order as to alimony, to be paid to complainant from time to time, as may appear from the proofs to be fit, and within the power of defendant to pay.

Decree reversed in pa/rt and in part affirmed.


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    Margaret Barrett et al. v. John Wilson.

      Filed at Springfield March 28, 1882.

      1. Homestead—execution sale is void. A sale of a party’s premises, occupied and held by him as his homestead, which are of less value than $1000, on execution against the occupant, is void, and may be set aside on bill by the householder, when his homestead has not been waived, released or abandoned.
    2. Same—surrender of possession—what constitutes. Where the owner of a homestead of less value than $1000, after its sale under execution against him, and before the taking out of a sheriff’s deed, let the assignee of the certificate of purchase into possession of- one of the houses upon the premises, under an agreement the assignee should take care of and maintain him during his life, and then have the property, which contract the assignee denied, and refused to maintain the occupant: Held, that this was not such a surrender of the possession as to make the sheriff’s deed valid, or prevent the occupant from having the sale and deed set aside.
    Appeal from the Circuit Court of Coles county; the Hon. C. B. Smith, Judge, presiding.
    Mr. T. L. McGrath, for the appellants.
    Messrs. Craig & Craig, for the appellee.
   Mr. Justice Scott

delivered the opinion of the Court:

It is conceded that prior to the 28th day of February, 1876, complainant, John Wilson, was seized and possessed of the premises described in the bill, as of a perfect title.' Situated on the premises were two small houses, neither of them of any considerable value. The larger one contained a number of rooms, and the other one was what is called a “shanty.” Both were designed for dwelling places, and were used for that purpose. During the lifetime of his wife complainant resided with her on the premises. It was their homestead. They had no children. Since her death, which occurred in November, 1875, complainant has continued to reside on the premises, but most of the. time in the “shanty.”

In 1872, George L. Horn obtained a judgment against complainant before a justice of the peace, on which one or more executions were issued, and returned “no property found. ” Afterwards a transcript of that judgment was filed in the office of the clerk of the circuit court of Coles county, in which county the parties resided, and where the property is situated. Under the provisions of the statute an execution was issued on the transcript judgment, jvhieh was by the sheriff levied on the lots involved in this litigation. At the sheriff’s sale of the property it was bid off by the plaintiff in the execution for the sum of $79.70, being the amount of the judgment and costs. The certificate issued by the sheriff to the purchaser was afterwards assigned in the usual way to defendant Margaret Barrett, and after the time allowed by statute for the redemption of the property had expired, she received a sheriff’s deed conveying the property to her. In some way, to be hereafter noticed, MArgaret Barrett and her husband obtained possession of the larger house situated on the premises, before the sheriff’s deed was in fact made to her, and they have continued to occupy the same up to the time of the decree in this case. "The bill was brought by the execution debtor against Margaret Barrett and her husband, to have the sheriff’s sale of the property set aside, on the ground it was his homestead, and, under the statute, void as to him. It appears that prior to the date of the issuing of the execution on the transcript judgment, the lots were incumbered by two small mortgages. One of them amounted to $92.72, and the other about $36, although the court found, by its decree, a larger sum was due on it. Both of these mortgages were paid off by Margaret Barrett, or her husband for her. By his bill complainant offered to repay to defendant all she had advanced to remove the liens on the property, after deducting a reasonable rent for that portion of the premises occupied by defendants. On the hearing of the cause the circuit court found the premises were the homestead of complainant, and get aside the execution sale as being inhibited by law, and, on causing an account to be stated between the parties, found there was due to defendant the sum of $100, and decreed that on payment of that sum to her, within ninety days, defendants should surrender the possession of the premises to complainant. Defendants bring the case to this court, and ask a reversal of the decree of the circuit court.

There are only two principal questions that can arise on the record: First, whether the sheriff’s sale of the property was void under-the Homestead law; and second, if so, is complainant estopped to assert it against defendants.

Concerning the first proposition there can be no doubt. The premises, at the time of the execution sale, were worth much less than $1000, and they were the homestead of the execution debtor. He had neither released, abandoned, nor surrendered the premises. His possession at the date of the sale was exclusive. It is not claimed he ever released his right of homestead by any deed or other writing acknowledged as the statute provides. The mere statement of the facts shows the sheriff’s sale of the property, at the time it was made, was void as to the execution debtor, who at the time was a householder, in the sense that term is used in the statute, residing on the premises.

But a question of more seeming difficulty is, whether complainant is equitably entitled to relief against defendants, under the circumstances. As has been seen, it is clear complainant never released his right of homestead in the premises to any one, and it seems equally certain he did not abandon it. He has continued to reside on the premises in the “shanty, ” and was so residing there when he exhibited his bill. Nor can it be maintained he ever surrendered the possession of the premises to the assignee of the purchaser at the sheriff’s sale. .But concerning this point in the case more will be said in the progress of this brief discussion.

Winslow v. Noble, 101 Ill. 194, is a ease where the homestead was not released by any statutory acknowledgment of the deed, but there was what was regarded as equivalent to an actual surrender of the premises, which, under the statute, was held to bar the homestead. But here nothing of that kind exists. It is true, defendants were let into possession of the larger house, but their claim of right to the possession of the garden and out-buildings was a matter of contention between the parties, sometimes resulting in actual violence.

The explanation of the transaction, as given by complainant, is, that on account of his affection for Margaret Barrett, who was a sister of his wife, and who at one time made her home with them, he desired she should have the property at his death, and it was with a view to secure that result he permitted her to have assigned to her the certificate of purchase, upon which she afterwards obtained a deed for so much less than the property was worth. Possession of thé larger house was given to defendants under a contract with them to board and otherwise care for him so long as he should live. Whatever contract there may have been between the parties for maintenance, existed in parol. Defendants deny most positively there ever was any such contract, but the circumstances all tend to strengthen the testimony of complainant in that behalf. As is usually the case, it was found it was impracticable to carry out or perform the con-" tract for maintenance. It was not long until the parties became disaffected towards each other. An intense ill-will existed. No contract more calculated to produce disquietude and bitter hatred can be conceived of, and it is seldom any such contract is ever performed with any fairness. The result that has occurred in this case might have been anticipated by any one giving the matter the least thought.

Assuming, as the court is warranted in doing from the evidence, that defendants were let into possession of a part of the premises under the contract for maintenance, and to retain the same until the death of complainant if the contract for maintenance should be performed, it is plain there was no such entire surrender of the property to the grantee as the statute contemplates would constitute an abandonment of the homestead. Nor is there anything in the ease that ought equitably to bar complainant from asserting his homestead against defendants. No equities can arise in their favor out of a contract they never performed, and the existence of which they now stoutly deny.

Some complaint is made that in'stating the account nothing was allowed defendants for the board of complainant. That is not a matter of much consequence. At most, he did not board with defendants longer than three or four weeks, and if there was error in the decree in that respéet, defendants were fully compensated by the error, of the court in inadvertently allowing them more on one mortgage that was an incumbrance on the property, than they actually paid.

The decree of the circuit court will be affirmed.

Decree affirmed.


text:
    John W. Kershaw v. Lucinda Kershaw et al.

      Filed at Springfield March 28, 1882.

    1. Conveyance—grantee bound by its terms and conditions—heir cut off from further participation in ancestor’s estate. The" acceptance of a deed for land by a son from his father, which recites that “said land is deeded as an advancement to said 3. W. K. (the grantee,) out of the estate of said J. K. (the grantor,) and the deed is accepted by said J. W. K. as his full and entire" share of his father’s estate, ” the recording of the same, and the enjoyment of the estate thereby conveyed, will operate to estop such grantee from denying that the seal attached to the deed is his, as well as that of the grantor, and he will not be entitled to any further share in the grantor’s estate.
    2. Contbact—release of an expectancy by a prospective heir. An executed contract, whereby a prospective heir releases his expectancy in his father’s estate, in consideration of a present grant of real estate to him by the father, is valid and binding upon the heir, and will be enforced in a suit for partition of the residue of the lands of the estate.
    3. Statute oe Fbauds—agreement by a son to accept an advancement in full of his prospective share in his father’s estate. Where a son accepts a deed from his father for a tract of land, the deed declaring in the body of it that it is accepted by the grantee as his full share in the grantor’s estate, and the grantee takes and enjoys the possession of the premises, the agreement to accept such grant in full of his share in the father’s estate will be binding on the son, and is not within the Statute of Frauds, as not having been signed by the grantee.
    4. Pabod evidence—to explain or contradict written contract. Where a clause in a deed for land is binding upon the grantee, by his acceptance and enjoyment under the deed as a contract, in the absence of fraud or mistake the deed can not be explained or contradicted by parol evidence, but must speak for itself.
    5. Witness—competency of party who is an heir against other heirs, in partition suit. On bill for the partition of lands among the heirs at law of the deceased owner, the court was not disposed to controvert the proposition that an heir whose right to share in the estate was denied, was a competent witness to prove that a deed accepted by him from his father was not intended to deprive him of further participation in his father’s estate, if it was competent to make such proof by. any other witness. But it was held such evidence was not competent for the purpose indicated.

      Appeal from the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.
    Mr. A. G. Karr, and Mr. B. E. Williams, for the appellant:
    An advancement is a gift by anticipation, from a parent to a child, of the whole or a part of what it is supposed such child would inherit on the death of a parent. Grattan v. Grattan, 18 Ill. 170; Miller’s Appeal, 31 Pa, St. 338; Osgood v. Breed’s Heirs, 17 Mass. 858; Bouvier’s Law Die. “Advancement, ” p. 92.
    The gift to the child or heir, made in the lifetime of the intestate ancestor, is prima facie an advancement. Grattan v. Grattan, 18 Ill. 170; Fleming v. Donahoe, 5 Ham. (Ohio,) 255 ; Story’s Appeal, 83 Pa. St. 95 ; Autrey v. Autrey’s Admr. 37 Ala. 614; Bulkely v. Noble, 2 Pick. 337.
    An advancement to a son-in-law is good as an advancement to the daughter, and in case of her death her children are chargeable with it. Barber v. Taylor, 9 Dana, 84.
    A parent can not exclude a child, without the agreement of the child to that effect, from sharing equally with the other children in his estate, without making a disposition of his estate to another, so as to break the descent. The parent can not do this by will. McIntire et al. v. Cross et al. 8 Ind. 444; Doe v. Lannins, 3 id. 441; Haxtun v. Corse, 2 Barb. Ch. 506; Denson v. Autrey, 21 Ala. 205; Rev. Stat. “Descents, ” p. 413, sec. 12.
    The parent can not do this by deed. Cannon v. Nowell, 6 Jones, (N. C.) 436; Milter’s Appeal, 31 Pa. St. 337.
    ' In all cases where an agreement has been made, by deed or in writing, that the child has received his share in frill, and shall be excluded from sharing further in the distribution of the father’s estate, such deed or agreement in writing has been signed by the child. This was so done in the following cases cited: Bishop v. Davenport et al. 58 Ill. 106; Quarles v. Quarles, 4 Mass. 680; Kenning v. Tucker, 8 id. 143; Fitch
      v. Fitch, 8 Pick. 479; Nesmith v. Dinsmore, 17 N. H. 575; Parson v. Ely, 45 Ill. 232; Trull v. Eastman, 3 Metc. 121.
    The alleged agreement set up in the hill in this case is an agreement in respect to an interest in land, and is not evidenced by any writing signed by the defendant, and is therefore void, being within the Statute of Frauds. Brown on the Statute of Frauds, secs. 266, 267, 268, 269; Luckett v. Williamson, 37 Mo. 389; Rev. Stat. sec. 2, chap. 59, “Frauds and Perjuries,” p. 540.
    If it be held that the alleged agreement is not within the Statute of Frauds, and that it needs no writing whatever to evidence it, then it is of no higher dignity than any agreement made by word of mouth, and may be disproved or- contradicted by parol; and the defendant is a competent witness to prove that such agreement was never in fact made or assented to by him. Pigg v. Carroll, 89 Ill. 205; Mueller v. Rebhorn, 94 id. 142.
    The defendant being the grantee in the deed, and not having signed or sealed the deed himself, is not estopped to deny the matters stated in the clause contained in the deed from his father to him. Bigelow on Estoppel, p. 289; Winlock v. Hardy, 4 Litt. (Ky.) 272; Gardner v. Green, 5 R. I. 104; Small v. Proctor, 15 Mass. 495; Moore v. Eastman, 5 N. H. 490; Lansing v. Montgomery, 2 Johns. 382 ; Osterhant v. Shoemaker, 3 Hill, 519; Miles v. Miles, 8 Watts & Serg. 135; Bolling v. Major, 3 Rand. (Va.) 563; Rawle on Covenants for Title, pp. 464, 465, 466.
    Mr. J. E. Pollock, and Mr. John Stapleton, for the appellees :
    A simple receipt by an heir, given in full of his share in his father’s estate, in consideration of a present grant, where the estate granted is not charged to him, will be held in full payment and satisfaction of his share by express agreement, and when fair, will be enforced. Bishop et al. v. Davenport

      et al. 58 Ill. 105; Quarles v. Quarles, 4 Mass. 680; Kinney v. Tucker, 8 id. 142; Fitch v. Fitch, 8 Pick. 479; Nesmith v. Dinsmore, 17 N. H. 575; Parsons v. Ely, 45 Ill. 232.
    The acceptance of a deed and enjoyment of the estate granted, estops the grantee from denying covenants or conditions therein to be performed by him. The seal will be his as well as the grantor’s, and a court of equity will restrain him from doing that which he agreed not to do by the acceptance of such deed. Atlantic Dock Co. v. Leavitt et al. 54 N. Y. 35; Coke’s Lit. 230, Butler’s note 1; Green v. Heran, 1 Salk. 197; Taylor’s Landlord and Tenant, (4th ed.) sec. 245; Trotter v. Hughes, 2 Kern. 74; Halsey v. Reed, 9 Paige, 446; Curtis v. Tyler, id. 433; King v. Whitely, 10 id. 465; 2 Sandford’s Ch. 251; Burnett v. Lynch, 5 Barn. & Cress. 596; Finley v. Simpson, 5 N. J. 311; 3 Washburn on Real Property, 280, (3d ed.); Burbank v. Pillsbury, 48 N. H. 475; Spaulding v. Hallenbeck, 35 N. Y. 207; Dorn v. Horraban, 101 Mass. 398; Thorn v. Keokuk Canal Co. 48 N. Y. 353.
    The recital in the deed is of as much weight, solemnity and dignity as a simple receipt not under seal, and if so, then John W. Kershaw has no interest in the estate. Bishop et al. v. Davenport et al. 58 Ill. 105.
    Appellant is estopped from denying the recital in the deed. Atlantic Dock Co. v. Leavitt, 54 N. Y. 35, and eases cited; Byrne v. Morehouse, 22 Ill. 603; Pinckard v. Milmine et al. 76 id. 453; Illinois Ins. Co. v. Littlefield, 67 id. 368; Dew v. Brewer, 1 N. J. L. (Coxe,) 172; Inskeep v. Shields, 4 Har. (Del.) 345; McCesky v. Leadbette, 1 Ga. 551.
    The recital is conclusive evidence against the grantee, in favor of the grantor and those claiming under him. Torrey v. Bank of Orleans, 9 Paige, 649; Rosseel v. Wickham, 36 Barb. 386; Chatauque County Bank v. Risley, 4 Denio, 480.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This was a bill in the circuit court of McLean county, to •assign dower to the widow of Joseph Kershaw, who recently died intestate in that county, and to make partition of the real estate whereof he died seized, among his heirs at law. Before his death, and on the 14th of July, 1864, Joseph Kershaw conveyed to his son, John W. Kershaw, a tract of 133 acres of land in McLean county, inserting in the deed therefor the-following clause: “Said land is deeded as an advancement to said John W. Kershaw out of the estate of said Joseph Kershaw, and the deed is accepted by said John as his full and entire share of his father’s estate.” John W. Kershaw accepted this deed and placed it upon record, entered into possession of the property conveyed by it, and has, ever since, retained the same.

On the hearing in the court below, it was decreed that the land conveyed to John W. Kershaw should be brought into hotchpot, and valued as unimproved land, as of the date of the death of the intestate. John W.- Kershaw appealed from this decree, and has assigned errors therein; and the appellees have also assigned, as a cross-error, that the court below erred in decreeing that John W. Kershaw bring the land so conveyed to him into hotchpot, and that he be thereupon allowed to share in the partition of the estate of the intestate.

The acceptance of the deed by John W. Kershaw, and the enjoyment by him of the estate thereby conveyed, estops him from denying that the seal attached to the deed is his, as well as that of Joseph Kershaw. Torney v. Bank of Orleans, 9 Paige, 649; Atlantic Dock Co. v. Leavitt et al. 54 N. Y. 35; Carver v. Jackson, 4 Peters, 87; Sinclair v. Jackson, 8 Cow. 585; Newell v. Hill, 2 Metc. 180; Maine v. Comstock, 98 Mass. 317; Burbank v. Pillsbury, 48 N. H. 475. See, also, upon like principle, Byrne v. Morehouse, 22 Ill. 603; Pinckard v. Milmine, 76 id. 453; Illinois Ins. Co. v. Littlefield, 67 id. 368.

The seal being, in presumption of law, the seal of John W. Kershaw as well as that of Joseph Kershaw, there is no ground for the contention of counsel for appellant that the case is affected by the Statute of Frauds. Indeed, in Galbraith v. McLain, 84 Ill. 379, we went much further than this, and held, where a deed, in which there was no such clause as that in the deed before us, was shown, by parol evidence, to have been executed by a father to his son, and possession of the property was also shown to have been taken by the latter, upon the express understanding and agreement that the property conveyed by the deed was accepted in lieu of all claim which the son might have in the residue of his father’s estate upon his death, the transaction was unaffected by the Statute of Frauds. It was there insisted that both the Statute of Frauds, and certain provisions of the Statute of Wills, were in the way of the enforcement of the contract. But it was replied: “We do not think either statute can be invoked against the transaction. * * * Certainly not the Statute of Frauds, for there is a deed in writing for the 50 acres, accepted by appellant, the benefit of which he is enjoying, and as to his expectancy of an inheritance, that can not be said to be such an interest in land as he could not surrender by parol.”

In Parsons v. Ely et al. 45 Ill. 232, we held that an estate in expectancy, though contingent, is a proper subject of contract, and that all agreements by expectant heirs in regard to their future contingent estates, when fairly made, upon valuable consideration, will be enforced in equity. And in Bishop et al. v. Davenport, 58 Ill. 105, we held, where the heir of an intestate had received property from the intestate, in his lifetime, and by an instrument in writing, whether under seal or not, acknowledged the receipt thereof as his full share of the estate, the property so received not. having been charged to him, and the transaction being untainted with fraud, must be held to be in full payment and satisfaction of his share of the estate, by express agreement. The only difference between that case and the present is, there the parties signed receipts acknowledging that the amount received was in full of their part of the intestate estate, while here the party accepts a deed in which it is recited that “the deed is accepted by said John as his full and entire share of his father’s estate, ” places the deed upon record, and enters into possession and enjoys the property thereby conveyed; and this, as we have seen, makes him, in presumption of law, a party sealing the deed, and is, therefore, equally as conclusive upon him as if he had actually written his name beneath the clause. He is estopped, that is, not allowed, to deny that. the deed is accepted by and binding upon him, as its language declares; and, as has been seen in Galbraith v. McLain, supra, even a parol promise of an heir to accept a deed of certain property in lieu of his expected interest in his father’s.estate, followed by the execution and delivery of the deed and possession of the property, was held to be sufficient.

But counsel contend that John W. Kershaw was a competent witness to prove that it was not intended that this deed should have the effect of depriving him of future participation in the estate of Joseph Kershaw, and they cite Pigg et al. v. Carroll et al. 89 Ill. 205, and Mueller v. Rebhan, 94 id. 142, as sustaining that contention. These cases are simply authorities for holding that, in a contest between heirs or devisees, in regard to an estate, the exceptions in the statute under which parties are allowed to testify, notwithstanding their interest in the subject matter in controversy, do not embrace them. If it were competent to make the proof here proposed to be made by John W. Kershaw, by any witness, we are not disposed to controvert but that it might have been made by him. But we deny that, in the absence of fraud, accident or mistake in the execution or acceptance of the deed (and of neither of which is there the slightest eviclenee in the record), such proof is at all competent. The deed must speak for itself, and can not be contradicted by parol. This rule is so elementary and familiar that its repetition is barely excusable. In cases of advancement, parol evidence is competent to explain the transaction, and show what was done and said, in order to arrive at the intentions of the parties, and also to show the value of the property advanced, but not even then to contradict, explain or modify written instruments. But we have seen, here there was no advancement, but an executed contract, whereby an heir released his expectancy in his father’s estate in consideration of a present grant of real estate. The release and the joint one in writing are in the same instrument, and no attempt is made to set aside and cancel the instrument upon any established equitable grounds.

We deem it unnecessary to notice the cases cited by appellant as holding a different doctrine than that of Parsons v. Ely et al., Bishop et al. v. Davenport, and Galbraith v. McLain, supra. These cases were not hastily considered, but the conclusions were reached .only after mature consideration of the questions' involved, and we have no inclination, to now adopt another view.

The decree of the court below must be reversed on account of the cross-error assigned, and the cause remanded for further proceedings consistent with this opinion. The costs in this court will be taxed against the appellant.

Decree reversed.