author: Mr. Justice Scott Mr. Justice Walker :

text:
    Uzziel P. Smith et al. v. Asahel H. Heath.

      Filed at Ottawa January 18, 1882

      Rehearing denied March Term, 1882.

    1. Mortgages—platting mortgaged premises into town lots—release of the lots by mortgagee—effect upon easements connected therewith. A mortgagor can not make a donation of any part of the mortgaged premises, to the public or otherwise, unless the mortgagee joins with him; but the mortgagee may be bound by his express consent thereto, by acts equivalent to a positive donation, or by way of estoppel, and his assent may be implied from his making no objection, and his subsequent acts made in reference thereto.
    2. Where the mortgage expressly provides for the making of a subdivision of the mortgaged premises into lots whenever the mortgagor shall deem it advisable, the consent of the mortgagee will be implied to laying out the usual streets and alleys, and when so laid out he will be bound by the act.
    3. An agreement by a mortgagee for the mortgagor to subdivide the land mortgaged, into lots, and to release, on the request of the mortgagor, any one or more of such lots on payment to him of a stipulated sum per front foot thereof, is to be treated also as an agreement to release his mortgage on' the streets and alleys adjacent to the lots, and designated on the plat as streets and alleys.
    4. Same—as to an ornamental square laid off on the plat of lots. In this case, the mortgagor, with the consent of the mortgagee expressed in the mortgage, laid out the mortgaged premises into lots, the lots fronting upon an oblong space called a square, which was also a part of the mortgaged lands, with no street between the lots and the square. The square was named “Aldine Square,” and marked “private” on the plat, which was duly prepared, acknowledged by the mortgagor, and recorded, and the mortgagee released all of the lots from his mortgage. Various persons had purchased lots in view of such square being an easement to their lots: Held, that the mortgagee was estopped from foreclosing his mortgage as to such square, for the satisfaction of an unpaid portion of the debt secured by the mortgage, although'the land had not been subdivided and platted in exact accordance with his written consent, he having full knowledge, however, of all the facts when he made the releases of the lots.
    5. In such ease, when the mortgagee adopted the plat by acting upon it with full knowledge, and making releases of the lots by the numbers by which they were designated on such plat, this, after the sale of lots to others, would obviate any objection on his part that the mortgaged premises were not subdivided according to his express written assent, and would amount to a ratification of the subdivision as actually made. Parties purchasing would have the right to rely on admissions thus shown by his conduct and acts.
    6. Dedication—easement—of the character of use to which land may be dedicated. Under our statute there may be a donation to the public or to any individuals, by a plat subdividing land into lots, and where a square is designated on such plat, marked “private,” and lots are made to front on the same, the word “private” will indicate that the square is donated for the use of individuals who might thereafter become the owners of such lots, and not to the public, and after the sale of such lots by the plat, the grant of the square will become irrevocable.
    7. There is no reason why a square in front of lots may not be regarded the same as an ordinary street would be, as affording an easement in favor of parties interested in the abutting lots. The fact that it is larger and wider than an ordinary street, and of a different shape, and is made attractive by the planting of shrubbery and flowers for ornamentation, makes it none the less an easement, in the strictest sense.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.

      Messrs. Palmer & Durkee, for the appellants:
    It is unimportant to determine where the fee in the square is. If the lot owners are entitled to have the square kept open for use, it is sufficient. Merely a question of private right is involved. Zearing v. Raber, 74 Ill. 411; Van Meter v. Hankinson, 2 Whart. 309; Selden v. Williams, 9 Watts, 12; Gridley v. Hopkins, 84 Ill. 531; Smith v. Town of Flora, 64 id. 93; Hunter v. Trustees of Sandy Hill, 6 Hill, 412; 2 Smith’s Leading Cases, 154, 167.
    It is not at all necessary that the owner should part with the title which he has, for dedication has respect to the possession, arid not the permanent estate. Rees v. City of Chicago, 38 Ill. 337; Zearing v. Raber, 74 id. 411.
    As to the distinction between a dedication and an easement, see Hunter v. Trustees of Sandy Hill, 6 Hill, 407; Pomeroy v. Mills, 3 Vt. 279.
    Lot owners have an easement over the square, whether the square is public or private. Childs v. Chappell, 5 Seld. 254; Lewis v. Beattie, 105 Mass. 411; Washburn on Easements, pp. 243-232; Indianapolis, Bloomington and Western R. R. Co. v. Hartley, 67 Ill. 442; Leach v. Waugh, 24 id. 230; Bateman v. Buck, 14 Eng. L. & E. 73; 3 Kent, 432, note, 433, 434; Gebhardt v. Reeves, 75 Ill. 307; City of Cincinnati v. Lessee of White, 6 Pet. 431; New Orleans v. United States, 10 id. 710; People v. Jackson, 7 Mich. 450; Conners v. New Albany, 1 Blackf. 45; Goddard on Easements, 264.
    Not important that a street should be opened or plat recorded. Trustees v. Walsh, 57 Ill. 368; Zearing v. Raber, 74 id. 411.
    Plat becomes part of deed, and if not referred to may be connected by parol evidence. Trustees v. Walsh, 57 Ill. 368; Noonan v. Lee., 2 Blackf. 499.
    Dedication presumed, as grantor obtained enhanced price, and this latter presumption can not be contradicted by parol proof. Wyman v. Mayor, etc. 11 Wend. 487; Waugh v. Leech,
      28 Ill. 492; United States v. Chicago, 7 How. 185;. 2 Smith’s Leading Cases, 154.
    Appellee is estopped, legally and equitably, by his acts and gross laches. Field v. Carr, 59 Ill. 200; Carter v. City, etc. 4 Ohio, 347; Washburn on Easements, 243; Child v. Chappell, 5 Seld. 254; Fisher v. Beard, 32 Iowa, 356; Mayor v. Cbzmcil of Macon, 12 Ga. 243; Canal Trustees v. Haven, 11 Ill. 556; Dimon v. People, 17 id. 416; Rees v. Chicago, 38 id. 322; Corbett v. Narcross, 35 N. H. 115; Heard v. Hall, 16 Pick. 457.
    Mr. Francis Adams, and Mr. John P. Wilson, also for the appellants:
    Appellee is estopped by his acts and releases from asserting any lien upon Aldine Square as against the parties owning the lots fronting on the square. People v. Brown, 67 Ill. 435; Knoebel v. Kircher, 33 id. 315; Baker v. Pratt, 15 id. 571; Mills v. Graves, 38 id. 465; Smith v. Newton, 38 id. 235; International Bank v. Bowen, 80 id. 545; Higgins v. Ferguson, 14 id. 270; Morgan v. Railroad Co. 96 U. S. 716; Bank of United States v. Lee, 13 Pet. 107.
    By the plat made in May, 1874, the square was dedicated to the owners of the abutting lots for a park. Morgan v. Railroad Co. 96 U. S. 716; Rev. Stat. 1845, ch. 25, sec. 21; Godfrey v. City of Alton, 12 Ill. 29; City of Columbus v. Dahn, 36 Ind. 330; City of Cincinnati v. Lessee of White, 6 Pet. 431; Holder v. Cold Spring, 24 N. Y. 474; Rowan’s Exrs. v. Town of Portland, 8 B. Mon. 232.
    By releasing the lots in the subdivision, Heath has released all rights appurtenant to such lots, among which is the right to the use of the square. Hagen v. Inhabitants of West Hoboken, 23 N. J. Eq. 354.
    It is well established law that the owner of property may recognize a plat or subdivision made by another of- his prop-' erty, by making conveyances of lots in such subdivision, and that the owner thereby becomes bound by the subdivision. Gridley v. Higgins, 84 Ill. 528; Smith v. Town of Flora, 64 id. 93; Zearing v. Baber, 74 id. 409; Field v. Carr, 59 id. 198.
    Messrs. Holden & Fabson, for the appellee:
    Acts relied upon as an estoppel must evidence an intention to dedicate. Warren v. Jacksonville, 15 Ill. 236; Kelly v. Chicago, 48 id. 388; Godfrey v. City of Alton, 12 id. 29; Marcy v. Taylor, 19 id. 634; City of Chicago v. Wright, 69 id. 328; Gentleman v. Soule, 32 id. 272; Princeville v. Auten, 77 id. 325; Chicago, Bock Island and Pacific R. R. Co. v. Joliet, 79 id. .25; Manly v. Gibson, 13 id. 312; Princeton v. Templeton, 71 id. 68; Proctor v. Lewiston, 25 id. 153; Manrose v. Parker, 90 id. 581; Rees v. City of Chicago, 38 id. 322.
    Where a party has only a "lien upon a parcel of land, and his lien is of record, and is by such record notice of his rights, no dedication by the owner can operate against the lien by way of estoppel. Hoole v. Attorney General, 22 Ala. 195; Marston v. Brackett, 9 N. H. 336.; McMannis v. Butler, 49 Barb. 176; Bigelow v. Topliff, 25 Vt. 273; Bigelow on Estoppel, (2d ed.) pp. 467, 476; Herman on Estoppel, secs. 430, 435; 2 Smith’s Leading Cases, (5th Am. ed.) 619, 642, 646, 660-663'; Story’s Eq. Jur. (12th ed.) sec. 1537; 3 Washburn on Real Prop. 75 ; 4 Kent’s Com. (9th ed.) p. 261; Odlin v. Gove, 41 N. H. 465; Gray v. Bartlett, 20 Pick. 186; Tongue’s Lessee v. Nutwell, 17 Md. 212; Bales v. Perry, 51 Mo. 449; Dessaunnier v. Murphy, 22 id. 95; Sahler v. Signer, 44 Barb. 606; Hill v. Epley, 31 Pa. St. 332; Rennie v. Young, 2 DeG. & Jones, 136; Green v. Cross, 45 N. H. 575; Mills v. Graves, 38 Ill. 465.
    A private right of way or easement can not be acquired by dedication. Goddard on Easements, 263; Washburn on Easements, (2d ed.) 129, 175; Illinois Central R. C. Co. v. Indiana and Illinois Central R. R. Co. 85 Ill. 211; Com. v.
      Newbury, 2 Pick. 51; Roberts v. Karr, 1 Campbell, 262; State v. Strong, 25 Me. 297; Carpenter v. Gwynn, 35 Barb. 395; McWilliams v. Morgan, 61 Ill. 92; Illinois Ins. Co. v. Littlefield, 67 id. 368; Proctor v. Lewiston, 25 id. 153.
    One out of possession is not bound by dedicatory acts of others. Hoole v. Attorney General, 22 Ala. 190; Goddard on Easements, p. 160; Winship v. Hudspeth, 10 Exch. 5; Baxter v. Taylor, 4 Barn. & Ad. 72; Arkwright v. Gell, 5 M. & W. 203; Webb v. Bird, 13 Com. B. (N. S.) 841; City of Hannibal v. Draper, 36 Mo. 337.
    The equitable estoppel ordinarily arising from lying by and permitting valuable improvements to be made without objection, does not arise where such expenditures are made with the knowledge of a record title, and especially where the estoppel is sought to be enforced against a mortgage only. Bigelow on Estoppel, (2d ed.) 467, 476; Herman on Estoppel, sees. 430, 435; 2 Smith’s Leading cases, (5th Am. ed.) 619, 642-646, 660-663; Story’s Eq. Jur. (12th ed.) sec. 1537; Odlin v. Gove, 41 N. H. 465; Marston v. Brackett, 9 id. 336; Gray v. Bartlett, 20 Pick. 186 ; Tongue’s Lessee v. Nutwell, 17 Md. 212; Bales v. Perry, 51 Mo. 449; Dessaun-

      nier v. Murphy, 22 id. 103; Sahler v. Signer, 44 Barb. 615; Rennie v. Young, 2 DeG. & Jones, 136; Green v. Cross, 45 N. H. 586; Hoole v. Attorney General, 22 Ala. 195; Bigelow v. Topliff, 25 Vt. 273; Mills v. Graves, 38 Ill. 465; Scott v. The State, 1 Sneed, (Tenn.) 629; Hill v. Epley, 31 Pa. St. 332; 3 Washburn on Real Prop. 75; 4 Kent’s Com. (9th ed.) p. 261; McMannis v. Butler, 49 Barb. 176.
    A gratuitous grantee can not claim by estoppel. A releasee of a mortgage is a gratuitous grantee. The debt must be paid. The release of the mortgage is required by statute without fee or reward. Hoole v. Attorney General, 22 Ala. 195; Fairley v. Fairley, 34 Miss. 18; Thompson v. Thompson, 9 Ind. 323; Weaver v. Lynch, 1 Casey, 449; Goodale v. Scannell, 3 Cal. 827.
   Mr. Justice Scott

delivered the opinion of the Court:

The bill in this case is to foreclose a mortgage given by Uzziel P. Smith to Asahel H. Heath, on the 5th day of February, 1870, to secure the note of Uzziel P. Smith, of even date, payable to the order of Asahel H. Heath, on or before the 25th day of February, 1875, for the sum of $45,000, with interest thereon at the rate of ten per cent per annum after February 15, 1870, payable semi-annually. Embraced in the mortgage were lots 6, 7, 8, 9 and 10, and the north half of the south half of lot 5, in block 3, in Ellis’ first, or west, addition to Chicago. Subsequently the mortgagor made what is known as the “Aldine Square subdivision” of the mortgaged premises. A plat of this subdivision was properly acknowledged by the mortgagor, was certified by the surveyor who did the work, was approved by the board of public works of the city, and was recorded in Cook county, where the property is situated. In the center of the plat'is shown a square, called “Aldine Square,” Most, if not all, of the lots of this subdivision front on “Aldine Square, ” with an alley in the rear. All of the lots fronting on this square, described therein as represented on the plat, had been released by the mortgagee, so that all the property described in the mortgage was in fact released before the bill was filed, except the alleys and “Aldine Square,” shown on the plat. As complainant does not ask a decree of foreclosure that would embrace any of the alleys shown on the plat, the controversy relates exclusively to “Aldine Square. ” On the hearing in the Superior Court a decree was passed giving complainant a foreclosure of his mortgage as to “Aldine Square,” and in case the sum found due him on the note secured was not paid by a day fixed, it was ordered the property be sold, as is usual in such cases. That decree was affirmed in the Appellate Court, and defendants bring the case to this court on appeal.

Prior to the making of the mortgage it seems complainant and Smith were joint owners of the property. It had been bought on joint account, with a view to speculation, and it was agreed complainant should have back his investment, with an agreed amount as for profits. It was to secure the sums coming to him the note and mortgage were taken. The previous relations of the parties to the property afford, in some degree at least, an explanation of their subsequent conduct in regard to it.

It will be noticed the mortgage contains an express condition in case the mortgagor should at any time subdivide the premises into lots, of as near equal depth á's may be, so as to make in all one thousand feet, or thereabout, frontage of the same, complainant would, at his request, release from the mortgage any one or more of such lots, upon payment to him of $60 per front foot. In the summer of 1874 Smith did subdivide the premises into lots. All the requirements imposed by the statute upon proprietors owning the fee, in regard to laying out an addition to a town or city, seem to have been observed by the mortgagor. The plat made by the surveyor had attached thereto an acknowledgment of the proprietor, the certificate of the surveyor stating he had subdivided the premises into “park, lots and alleys, which are correctly represented on the annexed plat under the title of Aldine Square subdivision, ” the approval of the board of public works, and the certificate of the recorder the plat had been filed in his office June 5, and recorded August 5, 1874. Near the center of the property surveyed is an oblong square, marked on the plat “Aldine Square,” with the word “private” written underneath. Otherwise this square, as represented on the plat, is blank. No public streets or drives are shown on it. Looking on the plat, it is seen all the lots front on this square, with an alley of about the usual width in the rear, enclosing the square on three sides, the other side being bounded by Vincennes avenue, a public street. Except over the square- there was no way of gaining access to the front of these lots. The lots appear to abut on the line of the square.. Back of the line of the square, distant twenty feet, is a dotted line, marked “building line. ”

In 1875 the mortgagor made what is called a re-subdivision of the mortgaged premises, under the title of “Aldine Square re-subdivision. ” All the forms observed in making the original subdivision were regarded in making the re-subdivision. Both plats are identical, except on the latter one “Aldine Square” is marked “public, ” and a public drive is shown around the square in front of the lots, with a single entrance near the center, on the line of Vincennes avenue. It may be the certificate of the surveyor is not entirely accurate as to the description of the property subdivided, but that is a matter of no consequence, as the plat, which is a matter of record, corresponds exactly with the land actually surveyed.

It is seen complainant expressly consented to a subdivision of the mortgaged premises into lots whenever the mortgagor should deem it advisable. Consenting to a subdivision of the property into lots, implies a consenting to laying out the usual streets and alleys, otherwise the contract would be impracticable of execution, and would involve the absurdity of subdividing a tract of land into lots without any means of ingress or egress. The contract must have a reasonable construction in this regard. Complainant also agreed to release, on the request of the mortgagor, any one or more of such lots on payment to him of a stipulated price per fri^nt foot. Giving to this part of their contract a reasonable construction, it must be read as an agreement also to release his mortgage on the streets in front of the lots, that the right of ingress and egress might be secured. Construing the contract otherwise, it would be of no advantage whatever to the mortgagor. [Residence lots without streets, would of course be valueless and unsalable. Releasing the lot, unless it released also the street in front of it, would be of no use to the purchaser. Had nothing more been done in subdividing the mortgaged premises into lots than also laying out streets and alleys of the customary and usual width, it is hardly probable it would be insisted that releasing all the lots in the subdivision did not also release that portion of the mortgaged premises designated as streets and alleys. The concession of counsel is to that extent.

The contract, as expressed in the mortgage, would ordinarily be understood, if the mortgagor made a subdivision of the property into lots it should be done in the usual mode, by making streets in front of the lots of the common or usual width. It is said the premises were not subdivided in accordance with the contract between the parties. That may be conceded. Instead of adopting the usual plan of making the lots front on streets, the mortgagor, in his subdivision of the property, made the lots front on a court, or oblong square. There was no easement to the front of the lots for the benefit of parties that might become purchasers, except over the square or court. No doubt this was a wide departure from any fair interpretation of the contract, but it was entirely competent for complainant to consent to any subdivision of the property that might be thought to be for the best interests of himself and the mortgagor. It is quite satisfactorily proven complainant did yield his assent to the mode adopted in making the first plat of the ground, or what is called the “Aldine Square subdivision. ” Before it was done he knew the premises were to be subdivided in that way. It is conceded he saw the plat before it was recorded, and it does not appear he made any objections to the plan or mode adopted. So far from objecting to the plan of making 'the subdivision by the mortgagor, he adopted it by acting upon it, and making releases of lots, under his contract to do so, by the numbers by which they were designated on the plat.

It is not quite so clear complainant knew of the “Aldine Square re-subdivision” at any time before it was recorded. On this point in the case the evidence is conflicting. Complainant denies all knowledge of the plat before it was recorded. But it is proven he made releases of lots by reference to the “Aldine Square re-subdivision. ” That, he says, was done inadvertently, without noticing the description whether the lots were described as being in “Aldine Square subdivision, ” or in “Aldine Square re-subdivision. ” It was his understanding he was making the releases of lots as numbered on the original or first plat. Were this a vital point in the case, it would present a case whether his inattention in this respect was excusable. Parties taking releases without explanation, and it is not claimed any was given, would be justified in relying on what he did as what he intended to do. Parties accepting releases of lots as having been made by the plat of “Aldine Square re-subdivision, ” ought not to suffer on account of his inattention, in case loss is to fall on either party.

No great importance, however, need be attached to the difference in the plats made by the mortgagor, and for that reason no inquiry will be entered upon as to his right to make the re-subdivision of the premises. Under the statute of this State there may be a dedication or donation of land to the public or to any individuals, and as reference is had to one plat or the other, the donation in this case is either a donation to the abutting lot owners or to the public. It may be assumed that if Smith had been the owner of the fee, unincumbered, the making of the first plat under the statute would have been a donation of Aldind Square to the abutting lot owners, and after sales of lots by the plat it would have been irrevocable. The word “private” on the plat simply indicates the square was donated for the use of individuals that might thereafter become' lot owners abutting on the square, and not to the general public. As has been seen, individuals under the statute may be the recipients of a donation.

No reason is perceived why there may not he an easement in favor of individuals, or the public, over a square like this, as over any ordinary street. That is precisely what must have been intended in the donation of the square in this case. Because it was to be .a place of beauty in front of dwellings to be erected, it is none the less an easement, in the strictest sense of the term. A street wider than usual, and made attractive by the planting of trees, shrubbery and flowers on the margin, is an easement in favor of either the public or individuals. The same may be said as to a square. What possible difference can it make whether the land donated for an easement is in the form of a narrow strip, or in the form of an oblong or perfect square? One may be more beautiful than the other, but it is still an easement. There is no reason why the square in this case may not be regarded precisely as an ordinary street would be,—as affording an easement in favor of parties interested in the abutting lots.

The question of most difficulty arising in the case is whether complainant is bound by the donation of the square, either to individuals or the public, that was unquestionably attempted to be made by the mortgagor. It seems clear that he is. It matters not how he is bound,—whether by acts equivalent to a positive donation of the property, or by way of estoppel.

It is erroneous to assume the dedication of “Aldine Square ” is an alleged dedication by a mortgagor. No such thing is insisted upon, and .it is not understood a mortgagor could make a donation of any part of the mortgaged pi'emises, to the public or otherwise, unless the mortgagee should join with him. This case presents a donation of a part of the mortgaged premises, to individuals or the public, for an easement, with the implied or express consent of the mortgagee. Certainly that may be done by the joint action of both, as in them is vested the fee and the equitable estate. Express consent was given by the mortgagee to a subdivision of the mortgaged premises bylhe mortgagor into lots, for the purposes of making sales, and by a reasonable construction of the contract that is equivalent to consent the usual streets and alleys should be laid out and dedicated to the public. No decree is asked as to that portion of the property embraced in the alleys, which accords with this reasonable interpretation of the contract. As respects the departure from a correct interpretation of the contract in laying out a square for an easement, instead of a common street, as before remarked, complainant, before it was done, knew such a departure would be made, and as no objections were interposed then or at any other time, his assent might reasonably be implied. It follows, then, the subdividing of the mortgaged property, and making a plat of it with a view to sell lots by it, is the joint action of both the mortgagor and the mortgagee, in whom is the whole title to the property donated for an easement to individuals or the public. It is true the plat is not acknowledged by the mortgagee, but it was made by the mortgagor under a contract with him it might be made, and with whom he advised concerning the making of it, and having afterwards acted on it by making releases by it, he must therefore be as effectually concluded by it as if it had been acknowledged by him. The principle asserted was applied in Smith v. Flora, 64 Ill. 93. In all their subsequent dealings with the property, complainant recognized the plat as having been properly made, and in Gridley v. Hopkins, 84 Ill. 528, recognition of the plat by making sales of lots by it was held to make the plat obligatory upon the plaintiff, who had not previously consented to the making of it. The case in hand is a much stronger one for the application of the rule than the one cited. It is not necessary, to constitute a dedication, the grant should be in writing. It might be to a body incapable of taking by grant, in which case a writing to manifest the intention would be impracticable. Nor is the intention, so essential to every donation, wanting in this case. The alleys were to .give an easement to the rear, and the square to the front, of the lots. That intention is conceded as to the alleys. Why may it not he affirmed as to the square? It would be an unreasonable construction to put on the transaction, to hold the square was reserved as private property, on which buildings for manufacturing and other purposes might be erected within twenty feet of the building line of buildings to be erected on the lots. That would utterly destroy the value of the lots for residence property, and no such folly will be imputed to men of any business experience. The improvements made on the square are inconsistent with the idea it was private property, or was ever to be used for building purposes. The theory of dedication by both mortgagor and mortgagee is very much strengthened by the fact it was stipulated the lots to be carved out of the property should have a thousand feet, or thereabout, frontage, and that complainant was to release lots on payment to him of $60 per front foot, showing it was the expectation of the parties the mortgage indebtedness would be paid from the sale of lots, and that would operate as a release of that portion of the property devoted to alleys and other public grounds. Had complainant adhered to the contract, and sales had been effected in a reasonable time, the result anticipated might have been realized; but he chose to release lots without insisting upon a compliance with the terms of the contract, and that was a matter of his own concern.

Considering all the facts, this would seem to be a case for the application of the doctrine of estoppel in pais. It is the assertion of no new principle, but .the practical application of a doctrine often resorted to by courts in the maintenance of right and justice, and to defeat the assertion of claims it would be inequitable to allow. Such a defence arises out of matter in pais, and may consist of acts or declarations, or both, of the party against whom the doctrine is invoked: It will be seen the claim now put forth to a mortgage lien on the premises in controversy is at variance with the acts of complainant concerning it, and which induced the action of other parties, who would he injuriously affected if he is allowed to maintain his demand. A concise statement of facts will show how clearly the case comes within the rule stated. It is admitted complainant knew “Aldine Square,” although marked “private” on the plat, was to be improved and ornamented, as is usual in the case of a public park. That would have been a useless expenditure of money had it not been intended as an easement and pleasure grounds in front of the dwellings to be erected on the lots of the subdivision. Hot infrequently he saw Smith’s plans for dwelling houses around the square, a*nd looked them over and discussed them with him. The testimony of Smith is uncontradicted that complainant never expressed any dissent, but on the contrary was in harmony with what was being done. With a view to enable Smith to borrow money on them, complainant released from his mortgage all the lots fronting on Aldine Square by the description given to them on the plat. That was done, and with the money borrowed on the lots, and perhaps other funds, the lots and park were improved. Every lot fronting on the square had a brick dwelling house with a stone front erected thereon, with the exception of three lots, on which a valuable stable was built. A sum of over $25,000 was expended in the erection of dwelling houses, and in the improvement of the square, walks and drives, which wak elaborately done, with substantial ornamentation. All this complainant ° saw at frequent short intervals while it was being done, and his silence concerning it was a tacit approval. What was being done evidenced design and intention. This was evident to anyone, and more especially to one interested, as was complainant. Whatever is created or constructed manifests design, a'nd is easily read by any one at all observant. Certainly no one familiar with what was being done in and about this square did not understand its meaning and purpose. Had the mortgagor and the mortgagee set forth in a written instrument their purpose in the ornamentation of this little park, it would not have been better understood than it was by their acts done. While the events to which attention has been directed were transpiring, was the time, if the mortgagee, who had consented to the subdivision of the mortgaged property into lots for sale, did not intend to keep faith with purchasers whom his acts had induced to buy lots fronting on the square, when he ought to have made known to them the claim he now insists upon, in time to have prevented loss on them investments. The releases of lots from the operation of complainant’s mortgage were made with the understanding and confident belief the mortgagor would be able to effect sales of lots to persons wishing to secure desirable homes. As was anticipated would be the case, sales of lots were effected. ' It was known to complainant persons were induced to buy at greatly enhanced prices, on account of the beauty of the location,—houses fronting on the square or court. Neither complainant nor any one else was ignorant of the fact that unless the square was kept open as a park, the lots fronting on it would not be so desirable as places for residences. As complainant did not then make known the claim he now insists upon, since others have invested large sums of money in the lots, under the confident belief his silence indicated that the square would be forever kept open as an easement and park for their benefit, he ought not now to be permitted to assert he has a mortgage lien on the square that would require the outlay of a large sum of money to remove.

Great -stress is laid on the fact complainant’s mortgage was a matter of record, as affording notice to all subsequent purchasers of the lien created by it. An inquiry suggested by counsel in this connection is, did subsequent purchasers and incumbrancers concern themselves about the lien of the mortgage on the property now sought to be .foreclosed, or did they carelessly neglect to see whether the mortgage was properly released or not ? It is proven some of the parties making purchases relied on legal advice, -to the effect a release of the mortgage on the lots by reference to the plat was also a release of the mortgage lien upon that portion of the mortgaged property included in the square and alleys, for easements in favor of the lot owners. Of course the advice taken only goes to the good faith of the transactions, but there are cases entitled to consideration that sustain the position taken. The case of Hague v. Inhabitants of Hoboken, 23 N. J. 354, is a case where the mortgagor laid out the mortgaged premises in lots and blocks, with streets, and as to him it was held, as the rule is, it was a dedication of the streets to public use. Afterwards the mortgagee released some of the lots from the lien of the mortgage, which was regarded by the court as a release of the land to the middle of the street, and hence a release of the right of way over the dedicated street that was appurtenant to the lots. Bemarking upon what the mortgagee had done, the court said the legal effect of his release was also to release the mortgage as to the streets, and the reasons assigned are, that in making the release he described the lots by their numbers laid down on the map, and that a release of the lots would have been of little use to the purchasers if the mortgagee could afterwards have shut up the street by which access to them could be had. The rule declared is a reasonable one, and has its application to the facts of this case. If the first plat was not a statutory dedication of “Aldine Square” to the corporation, the fee remained in the proprietors making the plat, subject to an easement, and under the decision of this court a release, which in this case would have the force of a conveyance, of the lot, carried a release of the fee to the center of the square set apart for an easement. On the other hand, if it could be treated as a dedication to the corporation, it was for the use of the public as well as for the adjacent lot owners. Having recognized the plat by approving of it as a proper subdivision of the property, which the mortgagor was authorized to make, and by executing releases by it to all lots fronting on the square, complainant was as effectually hound by the plat as was the mortgagor, and in either case there was a release'of the square and the alleys of the subdivision for the benefit of lot owners.

It is inconceivable that parties having any business sense would buy lots fronting on a square or park, with no street between them, unless with the positive assurance they were buying with them the privilege of the square or park. That they certainly had in this case, from the acts of both the mortgagor and the mortgagee. Complainant, when he released his mortgage on the lots by their numbers on the plat, must have known parties were investing in them on the understanding he had released his mortgage on the square itself, and on .every principle of law he ought to be estopped to deny the legal effect of what he induced others to believe.

The judgment of the Appellate Court will be reversed, and the cause remanded to that court, with directions to reverse the decree of the circuit court, and dismiss the bill for want of equity.

Judgment reversed.

Mr. Justice Walker :

I am unable to concur in this judgment.


source: Caselaw Access Project

author: Mr. Justice Walker Mr. Justice Dickey :

license: Public Domain

text:
    David Ogle v. V. A. Turpin et al.

      Filed at Ottawa November 10, 1881

      Rehearing denied March Term, 1882.

    1. Assignee of note secured by mortgage—how far protected—and of ¿/te mode of securing protection as to the mortgage security. Where a mortgagee, after an assignment of the notes secured by his mortgage, acquires fhe equity of redemption, and enters a formal release of the mortgage upon the record, a party taking a mortgage from him upon the same premises without notice of the assignment of the notes, will acquire a lien superior to that of the holder of the assigned notes.
    2. There being no presumption of law that the payee of notes secured by mortgage has transferred the same before purchasing the equity of redemption from the mortgagor, a person taking a mortgage from the payee will not be held chargeable with notice that the notes secured in the first mortgage have been assigned," but he may rely upon the record, as showing title in his mortgagor.
    3. An assignee of notes secured by mortgage may protect his equitable lien on the mortgaged premises, by taking and putting upon record an assignment of the mortgage, so as to give notice of his interest, and thereby prevent others from being deceived by any subsequent satisfaction entered of record by the mortgagee.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Samuel M. Moore, Judge, presiding.
    Messrs. Dent & Black, for the appellant:
    The indorsement by Bunyan of the notes of Allen, and the delivery over of the same, together with the mortgage, operated to give Ogle all the rights of an assignee of the mortgage. Keohane v. Smith, 99 Ill. 156; Swift v. Smith, 102 U. S. (12 Otto,) 442; Vansant v. Allmon, 23 Ill. 31; Olds v. Cummings, 31 id. 188; Fryer v. Rockefeller, 63 N. Y. 276; Crofts v. Webster, 4 Bawle, 242; Mott v. Clark, 9 Pa. St. 405; Rigney v. Lovejoy, 13 N. H. 247; Wilson v. Kimball, 27 id. 300.

      Assignments of mortgages are not required to be recorded. Walker v. Dement, 42 Ill. 278.
    There was no merger in the case by the conveyance from Allen to Runyan, nor is it to be regarded as given by way of satisfaction and discharge of the mortgage. Edgerton v. Young, 43 Ill. 464; Dunphy v. Riddle, 86 id. 22; Goff v. Denny, 2 Phila. 275; Campbell v. Vedder, 42 N. Y. 174; Purdy v. Huntington, 42 id. (3 Hand,) 334.
    The circumstances put the parties upon inquiry. Pratt v. Bank of Bennington, 10 Vt. 293; Swift v. Smith, 102 U. S. (12 Otto,) 449.
    According to the well-settled doctrine of this court, no written assignment of the mortgage ivas necessary to be taken by Ogle, and hence he was not at fault or negligent in not taking a written assignment. In New York, as well as in this State, the record of such an assignment would be permitted, but there the courts have held it to be necessary only with reference to subsequent purchasers of the mortgage itself. Greene v. Warwick, 64 N. Y. 220; Campbell v. Vedder, 42 id. (3 Keyes,) 174.
    Messrs. Dupes & Judah, for the appellees:
    In Pennsylvania it was held, that an assignment of a mortgage ivas not “a conveyance of and concerning land, ” and therefore not within the provisions of their recording acts. Crofts v. Webster, 4 Rawle, 255 ; Mott v. Clark, 9 Barr, 405; Goff v. Denny, 2 Phila. 275.
    In Indiana, prior to the act of 1877, there was no law providing for the recording of assignments of mortgages, therefore the assignee in that State is not held chargeable with negligence in failing to have his assignment recorded. McCormick v. Digby, 8 Blackf. 98; Lapping v. Duffy 47 Ind. 50; Hasselman v. McCornan, 50 id. 443; Dixon v. Hunter, 57 id. 278.

      In New York, it seems, the recording of an assignment of a mortgage is necessary only against a subsequent assignee of' the same mortgage. Campbell v. Vedder, 40 N. Y. (3 Keyes,) 178; Purdy v. Huntington, 42 id. (3 Hand,) 338; Greene v. Warwick, 64 id. 226.
    The terms, “instruments relating to or affecting the title to real estate, ” and “other writings of or relating to the sale, conveyance, or other disposition of real estate, or any interest therein, ” etc., in our Recording law, it seems, would include and authorize the recording of assignments of mortgages. Rev. Stat. 1874, ch. 30, secs. 20, 28, 30, 38, and ch. 115, secs. 1, 9.
    That an assignee of a mortgage is required, under a penalty, to enter satisfaction of record on payment, is a recognition of such assignments as coming within the provisions of the Recording law.
   Mr. Justice Walker

delivered the opinion of the Court:

It appears from the record, that in August, 1874, Runyan held several notes, payable to himself, on Herman R. Allen. They bore date the 31st of July, 1874, payable in one, two and three years, and secured by mortgage on lands in Cook county, of even date, and duly recorded. Runyan, for a valuable consideration, indorsed to appellant, Ogle, and delivered them, with the mortgage, to him. In the spring of 1875 Runyan obtained a deed for the mortgaged premises from Allen, for the equity of redemption. Runyan, thereupon, and before the notes were due and were still unpaid, without the consent or knowledge of Ogle, on his apparent title, which appeared to be perfect of record, negotiated and obtained a loan of $20,000 from the Fidelity Savings Bank and Safe Depository, and to secure the same executed a trust deed to Arnold Tripp, with the usual power of sale. It does- not appear that Haines, the president, or Tripp, the attorney of the bank, or any-of its officers, had any other. notice that Ogle still held the Allen notes and they were not paid, than can he inferred from the title as it stood of record when the loan was made. Ogle filed his bill to foreclose this mortgage which, Eunyan had released of record, given by Allen" to Eunyan, to secure his notes as assignee of the notes, against the bank, and Turpin having been appointed receiver of the bank, was made a defendant. On a hearing in the Superior Court of Cook county the bill was dismissed. Complainant thereupon removed the case to the Appellate Court for the First District, where, on a hearing, the decree of the Superior Court was affirmed, ■ and he brings the record, bn appeal, to this court, and urges a reversal.

Neither party denies the validity or fairness of the debt of the other, as against Eunyan, or that both were liens on the property when the deed of trust was executed and delivered to Tripp, but the question is whether the bank did not obtain a superior lien by that deed, or took their lien subject to Ogle’s, and the whole question seems to resolve itself into one of whether there was negligence on the part of the bank, Appellant claims that the bank had no right to rely alone on the record of the title to the property, which showed that it was clear, but as the notes given by Allen were not then due, "that it should have made inquiry as to whether or not they Vere paid, and were not, as the fact proved to be, in the hands of an innocent holder, and the bank having failed to exercise ordinary care, it should have its claim postponed to that of appellant. On the other side it is claimed, that when it appeared that Eunyan had procured Allen’s equity of redemption in the property, and had released and satisfied his mortgage, the bank had a right to rely on the record, and was not bound to make further inquiry, and it took the preferred lien.

It has not been suggested of whom the bank should inquire. It inquired of Eunyan, and he said the title was good for the property. Had the bank inquired of Allen, he could only have given information that he had not paid the notes, but could not have referred the bank to any person as assignee of the notes, and it was not required to go into the commercial world to find a holder. The mortgage showed the notes were payable to Eunyan, and when he released the mortgage the bank had the right to presume the notes were paid, or if not, that he had waived and released the mortgage security, and was willing to look to the responsibility of the maker, or had obtained other security. We think the mere fact that the time of payment had not arrived, was not sufficient to put the bank on inquiry, or to charge it with notice that the notes had been indorsed to appellant, and were unpaid, and to give his claim a preference the bank must have had notice in fact, or of circumstances pointing to notice.

The release or cancellation by the mortgagee is prima facie a satisfaction, but may be shown, as between the parties, to have been made by mistake, accident or fraud, as was said in Flower v. Elwood, 66 Ill. 444. But the question remains, whether the same rule applies to innocent purchasers and incumbrancers. The ruling of this court has been, under our recording laws, that a purchaser or incumbrancer may rely on, and be protected by, a clear and regular title of record, unless affected by notice of secret adverse titles or liens. Such was the manifest object and purpose of this law, and it has ever been so enforced. The very object is, that all persons having any deed, mortgage, or other instrument in writing relating to or affecting the title to land, shall record it, or failing to do so, as against innocent subsequent, purchasers or lienholders he must be precluded from asserting his claim. Eunyan’s release of the mortgage held against Allen was prima facie a satisfaction,—that the bank, in the absence of notice, or what is equivalent to notice, might act.

But it is urged that Eunyan, having acquired the equity of redemption, could not release the premises from the mortgage to himself; that such an act was nugatory, and affected or changed the rights of no one; that having no legal or binding effect, appellant’s lien under the mortgage remained unimpaired, and the bank did not acquire a lien superior to his. As between Runyan and appellant this is true, and the same thing may be said as to subsequent purchasers or lienholders with notice, but we are unable to extend the rule to persons acting without notice or anything to put them on - inquiry. The bank had no such notice, or reason to suppose the notes were outstanding and unpaid. On the contrary, the facts and circumstances before its officers justified the reasonable inference that they had been paid or canceled, and taken up. This would be the reasonable inference deducible from the fact that Runyan united the equity of redemption with the interest he held under the mortgage, thus becoming the owner of the fee. That act, of itself, would induce the belief that the debt had been canceled by Runyan becoming the absolute owner in fee, and the lien extinguished. Persons uninformed of this fact would reasonably suppose, when he was the absolute owner of the property,, that he did not look to it as security for the payment of the notes named in the mortgage,—they would infer that the debt was paid, discharged, or otherwise secured, and the lien extinguished. The bank officers were therefore fully justified in that conclusion, and in acting upon the inference.

The case of Edgerton v. Young, 43 Ill. 464, is referred to as controlling this case. It differs from this in the material fact that the mortgagee in that case had not entered a satisfaction of the mortgage on the record. When the attorney of the bank found it thus satisfied, in this case, without circumstances to put him on inquiry, he had a right to rely on the record of satisfaction. As the record stood, it showed that Runyan was the owner of the title, free from incumbrance. The assignment of the notes operated as an equitable assignment of the mortgage, and the assignment was an instrument that related to or affected the title to land, and to become operative as to creditors and purchasers the assignment of the mortgage should have been formally made and recorded, to charge notice to all persons dealing with the title, or at least the assignment on the note should have referred to the mortgage, and that assignment should have been recorded. As between the parties, the mere assignment, without recording, was all that was required to assign the mortgage, but as to strangers it was otherwise.

It is also said that Keohane v. Smith, 97 Ill. 156, announces a different rule. This we regard as a misapprehension. The two cases are clearly distinguishable in some of their material facts. In that case the second mortgagee was fully informed that the prior mortgage was unsatisfied and the note outstanding and unpaid, and it was agreed that of the money the borrower obtained from the lender the first mortgage debt should be paid and discharged, and the borrower and the agent of the lender went to Eunyan and paid the money to him without the surrender of the note, or even, any inquiry about it. Eunyan was not the agent for the holder of the note, and had no right to receive the money. There, the lender knew of the existing mortgage, and provided for its payment. Here, there was no notice of the prior mortgage. There, the negligence did not consist in failing to learn of the first mortgage, as it stood of record unsatisfied, and the lender was notified of the fact. Here, the mortgage of record was released and satisfied. The negligence in that case was in the attempt to pay the prior mortgage debt to a person having no authority in fact to receive the money, and in not requiring the production of the note, and its surrender, when the money was paid. It is this gross negligence in not taking up the note, and the knowledge of the second mortgagee, that are the principal distinguishing facts between that and this case.

It is claimed that the Appellate Court felt bound by its former decision, and refused to review it when this case was before it a second time, when it rendered the decree from which this appeal was prosecuted, and that was error. We presume that court refused to do so because it was satisfied that the proper decision of the case precluded them from deciding otherwise than they did. All we have to do is to determine whether the judgment or decree of that court is erroneous, as claimed, and to reverse or affirm, as the law may require. ■ We have no concern with the question whether they felt bound by their former decisions, or are disposed to review and overrule or modify them. It is no part of our province to determine such questions. We can only look to the record of that court to determine whether it contains error for which the judgment "should be reversed.

A careful examination of the record in this case fails to disclose any error for which the decree of the Appellate Court should be reversed, and it is affirmed.

Decree affirmed.

Mr. Justice Dickey :

I concur in this decision. When the mortgagee bought the lands, or rather the equity of redemption, had he been at that time the holder of the notes secured by the mortgage, the mortgage would have become merged, and the title would have stood, by operation of law, complete in the mortgagee, divested of any lien of the mortgage, unless, for some peculiar reason, he chose to keep the mortgage alive. The release of the mortgage of record was a declaration that he did not so choose. Bunyan having assigned the notes, was a trustee for Ogle, but his trust relation was not known to the bank. Under, the circumstances there was no presumption that the payee of a promissory note had assigned the same. . The second mortgagee in this case, as I think, had a right to assume that the payee of the notes, if they were not paid, still held the same, and that the mortgage had merged. The release by the mortgagee in the first mortgage was simply a declaration on his part that he did not desire to keep alive that mortgage made upon property which he himself then owned. There is no hardship in this. When a man buys notes secured by mortgage he becomes thereby the equitable assignee of the mortgage, and acquires an equitable interest in the mortgaged lands. If he wishes to protect that interest against subsequent purchasers, he may do so by taking a written assignment of the mortgage, and placing that assignment upon record. Possibly a record of the assignment of the note would be sufficient. Where it is the duty of any one to see that commercial paper is paid, a payment to the payee not in possession of the paper will not affect the assignee. That was the case in Keohane v. Smith, and on that point that case turned. In that case, had the second mortgagee sold and assigned to an innocent purchaser the note and mortgage, and had that assignment been placed upon record, the ease ought to have been decided against the holder of the note secured by the first mortgage. The distinction between that case and this consists, in my judgment, in the fact that there the second mortgagee, in substance, undertook to pay the debt in the first mortgage, and by her own negligence paid the wrong .man. Here the second mortgagee did not undertake to discharge the first mortgage debt. He relied upon a release by the trustee, who he had a right to assume had done his duty.


author: Mr. Justice Mulkey

text:
    Emilie Wiegleb v. F. W. Julius Thomsen et al.

      Filed at Ottawa November 10, 1881

      Rehearing denied March Term, 1882.

    1. Bankruptcy&emdash;sale of lamd by assignee&emdash;what title passes. By a sale and conveyance of land by an assignee in bankruptcy, the purchaser succeeds to whatever interest the assignee had in the property sold, and nothing more.

      2. Same—sale prior to bankruptcy—rights of purchaser as against conveyance by the assignee. A purchase of real estate from a person on the eve of his bankruptcy, if made in good faith and for a valuable consideration, will not be set aside at the suit of a purchaser at the assignee’s sale of the same premises, in bankruptcy, merely upon proof that the prior sale was made by the bankrupt in contemplation of his bankruptcy, and in fraud of the Bankrupt law.
    3. Practice—reversing on facts found in chancery suit. It is only when this court is able to see that the decree of the court below is clearly against the weight of the evidence, that it will reverse upon a mere controverted question of fact.
    Writ of Ebbob to the Circuit Court of Cook county; the Hon. William H. Babnum, Judge, presiding.
    Mr. Eugene E. Trussing, for the plaintiff in error:
    The transfers were made under circumstances which render them void as to plaintiff in error, by virtue of sec. 5129 of the Bankrupt act. Bump on Bankruptcy, 711.
    When the condition of a debtor’s affairs are known to be such that prudent business men would conclude that he could not meet his obligations as they matured, there is reasonable cause to believe him to be insolvent. Knowledge is not necessary,—nor even belief,—but simply reasonable cause to believe. Merchants’ National Bank v. Cook, 95 U. S. 342; Toof v. Martin, 13 Wall. 40; Buchanan v. Smith, 16 id. 277; Wager v. Hall, id. 584; Walbrun v. Babbitt, id. 577.
    Such is the doctrine as to the degree of care purchasers must exercise in their transactions. Tiffany v. Lucas, 15 Wall. 410; Scammon v. Cole, 5 N. B. Reg. 263; Toof v. Martin, 13 Wall. 40; Castle v. Bullard, 23 How. 187; Odell v. Flood, 8 Benedict, 543.
    Mr. E. A. Shebbubne, for the defendants in error.
   Mr. Justice Mulkey

delivered the opinion of the Court “

On the 10th of August, 1878, Budolph Schlcesser, subject to certain incumbrances, was the owner in fee of nine lots in the city of Chicago, this State, worth some $30,000, being the same involved in this litigation. On that day he and his wife, by warranty deed, conveyed six of them to defendant in error Gr. F. T. Hoffman, and by a like deed on the same day conveyed the three remaining lots to defendant in error F. W. J. Thomsen. On the 29th of the same month Schlcesser filed in the District Court of the United States, for the Northern District of Illinois, his petition in bankruptcy, in pursuance of which he was subsequently, on the 7th day of September, 1878, duly adjudged a bankrupt by said court, and one Bobert E. Jenkins was thereupon appointed his assignee in bankruptcy. By virtue of an order of the District Court, the lots in question were, on the 10th of June, 1879, sold by the assignee at a regular bankrupt sale, and the same were struck off to plaintiff in error, Emilie Wiegleb, for the very inconsiderable sum of $200, and the premises were thereupon conveyed to her by the assignee, in pursuance of the sale. By this conveyance plaintiff in error acquired whatever title or interest Jenkins had in the premises as assignee of Schlcesser, and nothing more. On the 26th day of June, 1879, plaintiff in error filed the present bill in the circuit court of Cook county, against Hoffman and Thomsen, and their several tenants, by which it is sought to have set aside as fraudulent and void, and as a cloud upon the title of plaintiff in error, the above mentioned conveyances from ^Schlcesser to Hoffman and Thomsen.

The gravamen of the complaint of plaintiff in error, as appears upon the face of her bill, is, that these conveyances were made by Schlcesser in contemplation of bankruptcy, and for the manifest purpose of preventing his estate from being distributed among his creditors under the Bankrupt act, and that the grantees, Hoffman and Thomsen, knew, at the time of accepting these conveyances from him, that such was the object and purpose of Schlcesser in making them. These charges were distinctly denied by the answer of defendants in error, and to the issues thus formed most of the testimony was directed. On a hearing upon the merits, the circuit court found the issues for the defendants in error, and thereupon entered a decree dismissing the hill of plaintiff in error, to reverse which decree the present writ of error is prosecuted.

It is quite clear that at the time of these conveyances to Hoffman and Thomsen, Schlcesser was insolvent, and on the very verge of bankruptcy, and we think the weight of evidence shows that they were made, so far as he is concerned, in contemplation of bankruptcy, and in fraud of the Bankrupt act; and while there are some established facts which tend strongly to show that Hoffman and Thomsen knew the suspicious circumstances under which the conveyances were made, and Schlcesser’s object in making them, yet we do not think the evidence sufficiently strong in this direction to warrant us in disturbing the decree of the circuit court on that ground. In view of the fact that the evidence on that phase of the case was conflicting, and in the main consisted of oral testimony, the opportunities of that court were, as has often been said under like circumstances, far better than ours in arriving at a just conclusion on that question. It is only when this court is able to say, under such circumstances, that the judgment or decree of the court below is clearly against the weight of the evidence, that it is authorized to reverse upon a mere controverted question of fact.

Conceding, then, that Hoffman and Thomsen were purchasers in good faith for valuable considerations, which the circuit court must have found to warrant its decree, the bill of plaintiff in error can not, on any other theory, be maintained. It follows, therefore, the decree of that court dismissing the bill was proper, whatever may be the true solution of other questions discussed by counsel.

Decree affirmed.


author:
Mr. Chief Justice Craig
      Mr. Justice Dickey, Mr. Justice Walker :

text:
    Lesser Friedberg v. The People of the State of Illinois.

      Filed at Ottawa November 10, 1881

      Rehearing denied March Term, 1882.

    1. Criminal law—receiving stolen goods—evidence. In this case, upon an indictment for receiving stolen goods for gain, knowing them to have been stolen, the evidence, which is reviewed in detail, was considered sufficient to support a conviction.
    2. Witness—accomplice. While it is true that a jury should receive the testimony of an accomplice with caution, yet, if they think him worthy of belief in view of all the circumstances, they may convict upon his evidence, even without corroboration.
    3. Instruction—repeating. There is no error in refusing instructions, the substance of which is contained in others given.
    4. New trial—newly discovered evidence. A new trial will not be granted for newly discovered evidence, in its nature merely impeaching evidence.
    Writ of Error to the Criminal Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.
    Mr. Emery A. Stores, for the plaintiff in error.
    Mr. Luther Laflin Mills, State’s Attorney, for the People.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

This was an indictment against Lesser Friedberg, in the Criminal Court of Cook county. The indictment contained five counts. In the first count the defendant was charged with stealing, taking, and carrying away a certain quantity of goods, described in the indictment. In the second count it was charged that he burglariously stole, took, and carried away the goods. In the third count it was alleged that he aided in stealing the goods that had been stolen. Fourth, that he received the goods, knowing them to have been stolen. Fifth, that he purchased the goods, knowing them to have been stolen. At the January term of the Criminal Court a trial was had, and the jury found the defendant guilty, as charged in the third, fourth and fifth counts of the indictment. The property was found to be of the value of $2000, and the term of imprisonment was fixed at four years in the penitentiary.

It is urged, as a ground of reversal of the judgment, that the verdict was based entirely and exclusively upon the testimony of one witness, George Freeman, one of the parties engaged in the commission of the burglary, whose evidence is unreliable, because he is a person of infamous and depraved character, and unworthy of belief. It is true that Freeman, who was one of the witnesses, had been convicted of a number of crimes, and had been punished by confinement in different State prisons, but we do not understand that the verdict rests entirely on his evidence.

On the night of October 4,1878, the store of E. S. Joffray & Co., in Chicago, was entered hy burglars, and a large quantity of goods, consisting of silks and silk handkerchiefs, was stolen and carried off by those who entered the store. This fact was established beyond controversy. It was also proven, beyond a doubt, that the stolen goods were taken in a wagon by the burglars and carried to the store of the defendant, a pawnbroker on State street, and while, the burglars were removing the goods from the wagon into the defendant’s store, between ten and eleven o’clock at night, they were discovered by a police officer, who came up to the wagon in the discharge of his duty as a policeman, and was shot and killed by one of the burglars, who at the time was on the wagon. Before the officer came up, a large quantity of the goods had been carried into the store, the defendant being present. It was also proven by two witnesses, Ida Morrison and Belle McCabe, who resided two blocks from defendant’s pawn-shop, that one or two nights before October 4th they were in defendant’s place, looked at some silk, and remarked that they did not wish to pay more than $1.50 per yard, when Friedberg said, come in to-morrow or next day night, when he would have some more,—he expected • some more silk. Immediately after the occurrence in front of the store, captain of police O’Donnell testified, defendant’s door was locked, the light in the store was nearly extinguished, and the defendant was not to be found about the premises. The witness went to Twenty-third street, looking for defendant, came back in a short time, gained admittance to the store, arrested Mrs. Harvey, whom he found in the building, and as he was in the act of leaving with her, defendant came up and denied that he was in the store when the officer was shot, and made other false statements in regard to his where■ahouts.

These facts were established by evidence which seems to he reliable, and were proven independent of the testimony of Freeman, who was one of the burglars. In the argument of counsel for defendant these facts seem to be overlooked or ignored. Were they entitled to no consideration by the jury? The answer to this depends upon what may be regarded as established by these facts. This evidence proved the burglary. It proved that the stolen - goods were ■ immediately carried to the defendant and placed in his store, and that soon after the burglary had been committed the stolen property was found in the defendant’s possession. Now, if at the time the stolen goods were received by defendant he knew they had been stolen, and he received them for his own gain, or to prevent the owner from again possessing his property, then the evidence would justify a verdict of guilty, without the evidence of Freeman, the accomplice.

In regard to the guilty knowledge of the defendant, it is proper to take into consideration the circumstances under • which the goods w'ere brought to the defendant’s place and received by him. ' Had the goods been taken to the defendant in the day time, by a regular dealer in such goods, and sold for a fair valuation, the transaction could not he regarded as suspicious. But such was not the case. The property was taken to defendant at an unusual hour of the night,—between ten and eleven o’clock. The goods were taken in a wagon, in a confused condition,—fine silks tied up in bundles with silk handkerchiefs. The parties in possession of the goods were all strangers to defendant, except Freeman, whom he knew to be a thief. These were the circumstances under which the goods were received by the defendant, and they were, in our judgment, sufficient to convince any man of ordinary honesty that the goods had been stolen. The theory that $2000 worth of fine silks would be thrown in a one-horse wagon in a confused condition, and hauled around a city for sale between ten and eleven o’clock at night, by any person who owned such goods, or who had obtained the possession honestly, is too preposterous to be entertained for a moment.

Again, it was proven by one of the defendant’s own witnesses, that a short time before the goods were brought to the defendant’s store, Freeman was there in consultation with the defendant. What was said between the two was not proven, but the fact that Freeman returned in a short time in company with his confederates, and commenced unloading the goods, leads to the presumption that the goods were brought there in pursuance of a previous understanding between the defendant and the burglars. The conduct, too, of the defendant immediately after the officer discovered the burglars unloading the goods, is a strong circumstance against him. The fact that he locked the store, denied that he was there, left the premises, and made contradictory statements in relation to wfhat had occurred, all point to his guilt.

The statement of the defendant to the witness Morrison to come back in a night or two, that he would have more silks, has an important bearing in connection with the other facts. Where did he expect to get more silks ? He did not show that he expected to buy them, or how he expected to get them. Is it not reasonable to believe, in view of what subsequently occurred, that he was anticipating silks from the store of Joffray & Co. ? But however that may be, when the testimony we have referred to is properly weighed and considered, the position that the verdict was based entirely upon the evidence of Freeman, is a clear misapprehension of the facts contained in the record.

Freeman, in his evidence, in substance says he assisted in robbing the store, and went with the goods to the defendant’s place in pursuance of a prior arrangement made between him and the defendant. If the evidence of this witness is entitled to any consideration, there can be no doubt in regard to the guilt of defendant. Freeman was an accomplice, it is true, but that fact did not exclude him from testifying in the case,— it would only go to his credibility. It was for the jury to determine whether the witness was worthy of belief. It is true, a jury should receive the evidence of an accomplice with caution, but if they think him worthy of belief, in view of all the circumstances, they .may convict upon his evidence, although it might not be corroborated. Gray v. The People, 26 Ill. 344; Earll v. The People, 73 id. 329. In this case, however, the jury did not have to rely entirely upon the evidence of the accomplice, as we have heretofore shown there is much evidence in the record tending to prove defendant’s guilt, aside from the evidence of Freeman.

It is next urged that the court erred in refusing defendant’s instructions one, two, three and four. The substance of refused instruction number one, was given to the jury in defendant’s instruction number ten, and the court was under no obligation to repeat the s,ame thing in different instructions. The second and third instructions were in conflict with the rule of law declared in Gray v. The People, 26 Ill. 344, and Earll v. The People, 73 id. 329, and upon this ground were properly refused. As to defendant’s fourth refused instruction, its substance was given to the jury in numbers four and five of defendant’s instructions. At defendant’s request' the court gave to the jury twenty-four instructions, which fully and fairly presented to the jury all the law involved in the case, and so far as instructions are concerned, defendant has no just ground of complaint.

Upon the motion for a new trial certain affidavits were read showing newly discovered evidence, but the newly discovered testimony was in the nature of impeaching evidence, which, under the uniform decisions of this court, is no ground for a new trial. Sec. 239, Eev. Stat.'18T4, p. 338, declares : “Every person who, for his own gain, or to prevent the owner from again possessing his property, shall buy, receive, or aid in concealing stolen goods * * * or property obtained by robbery or burglary, knowing the same to have been so obtained,.shall be imprisoned in the penitentiary,” etc. It is difficult to perceive how any fair-minded jury could hear all the evidence contained in this record, and arrive at any other conclusion than that the defendant received the goods in question for his own gain, knowing that they had been obtained by burglary. When the goods came to the defendant’s place, in the night time, in the possession of suspicious characters, one of whom he knew to be a professional thief, the articles tied up in suspicious bundles, it was his duty, as an honest man, to refuse absolutely to have anything to do with the goods. This, however, he failed to do. It is said that the defendant made objection to the goods being brought into his store. There was some evidence of this character before the jury, but it is apparent, when the testimony is closely examined, that no objection was made by the defendant until he saw that a policeman had discovered the burglars unloading the goods at his place. Of course he would then object, but the objection comes too late to be of any service in his defence.

We perceive no error in the record, and the judgment will be affirmed.

Judgment affirmed.

Mr. Justice Dickey,

dissenting:

I can not divest myself of the conviction that the verdict and judgment in this case are both wrong. Without questioning that the uncorroborated testimony of an accomplice in crime may in some cases be sufficient to convict, I deem it a very unsafe and dangerous precedent to sustain a conviction resting upon the testimony of such a witness, who shows himself so deeply steeped in crime, whose story, in many of its phases, is so improbable upon its face, and where he is directly contradicted in the vital parts of his testimony by the testimony of at least two witnesses against whose character or credibility nothing appears, and where such powerful motives to induce the accomplice to speak falsely are apparent from the nature of the case.

Freeman testifies to a previous arrangement with Friedberg that he would receive these goods when stolen. He says this was done openly, in presence and hearing of Friedberg’s wife, and in the presence of Harvey, a man he had never seen or heard of before. In this he is flatly contradicted by Harvey, who is shown to be a respectable and industrious mechanic, and by this record stands unblemished, save by the testimony of this same man, by his own confession a professional thief.

The story of Freeman as to what occurred at this time, so far as relates to the lending of a revolver, is proven false by the witness Levi, who stands unimpeached upon this record. Freeman testifies that the accused did consent to receive, and did willingly receive, the goods on the night of the 4th of October, which is the offence charged in this case. Eight here is the gist of the controversy. In this he is flatly contradicted by the oath of the prisoner, and by the testimony of Harvey, who was present, and by that of Harvey’s wife,' and by circumstances sworn to by the witness Weiser. The theory of Freeman’s story is, that Friedberg and his wife were cooperating in what was done, and the statement that the Friedbergs were consenting to take the custody of the goods in question is shown to be false by the testimony of William Weiser, who stands unimpeached, and which shows that so far from receiving the goods, Friedberg (before the presence of any officer was apprehended) ordered Freeman, who was bringing'the goods into-his store, “to take the goods out, ” and that to enforce the demand that the goods should be taken away, Mrs. Friedberg sent the witness hastily for an officer, saying, “go as quick as you can;” that the witness went immediately and found officer Race; that Race at once started for the store; that Mrs. Friedberg, who had meanwhile followed witness when he went for the officer, met officer Race on his way to the scene and spoke to him, and Race hastened to the store door, and was there instantly shot and killed. This killing was plainly done either by Freeman in person, or some one of his fellows who were seeking to place the goods in Friedberg’s store. There is absolutely no evidence tending to sustain the charge that Friedberg received these goods, or took the custody of them, except that of Freeman.

It is suggested that the fact that these goods were brought at so late an hour should have indicated to Friedberg that they were probably stolen. This may be so; but it must be remembered that the testimony is that at first Freeman came alone, and simply said he had some silk handkerchiefs he wanted to sell, and Friedberg consented merely to look at them. The surroundings were so suspicious that Harvey advised Friedberg to have nothing to do with them, and Friedberg, having his suspicions aroused, replied, it “could do no harm to look at them, ” and that “he did not intend to buy. ” When the man returned, not merely with some handkerchiefs, but with a wagon and large quantity of other goods, and began to bring them in, Friedberg protested and forbid. All this is well shown by testimony apparently credible, and is nowhere contradicted, save by Freeman’s very improbable story.

It is suggested the testimony of the girls, Ida Morrison and Belle McCabe, corroborates Freeman, wherein they say that a day or two before this occurrence they were at Friedberg’s store looking at some silks, with, a view of buying, and said they were not such as they wanted, and that Friedberg requested them to call again soon, as he expected to have other and better silks in a day or so. Saying nothing about the apparent character of these girls, and taking this as honest testimony, it seems to me a matter of no significance. A man keeping a store and pawn-shop, or an auction store, in a large city, is daily receiving goods of almost every character, and is liable to have such goods any day from legitimate sources, in the ordinary course of business. It seems nothing more than the usual request of dealers to customers to call again, with the not unusual suggestion that they may shortly have such articles as are called for. It was a casual remark, and the lightest kind of testimony. It can not be said to be a substantial corroboration of Freeman.

Freeman’s motive to swear falsely against the Friedbergs is palpable. It appears from the affidavits in support of the motion for a new trial, that on the trial of Lamb for the murder of Race (where Freeman testified against Lamb), Mrs. Friedberg was a witness, and testified that it was Freeman who shot Race. Freeman, in this controversy, is testifying to save his own life, and to destroy the standing of those who aver his own guilt. He is not merely an uncorroborated accomplice, but he is, by his own account, a professional thief and burglar, steeped in crime, swearing under strong motives to speak falsely, and contradicted by several unimpeached witnesses. The good of society does not, in my judgment, demand that any man shall be convicted of crime upon such proof, only.

Mr. Justice Walker :

I concur with my brother Dickey in his dissenting opinion.


author: Mr. Justice Walker

text:
    Timothy Moshier v. H. D. Shear.

      Filed at Ottawa November 10, 1881

      Rehearing denied March Term, 1882.

    1. Arbitration—improper conduct of arbitrator as, ground to set aside award. What will be misconduct on the part of a juror, will, as a general rule, be such on the part of an arbitrator. Neither has a right to learn facts, except as brought to his attention on the trial. It is gross misconduct for either to seek evidence or the opinions of others in regard to the ease, or anything material to its decision, in another mode.
    2. If a party, his agent or attorney, converses with an arbitrator, after his selection, about the facts or merits of the case, an award in such party’s favor should be set aside, on the presumption it was obtained by improper influence.
    3. Where an arbitrator, after his selection, conversed freely with one who had previously acted as arbitrator between the same parties, in respect to the same subject matter, and whose award had been set aside, and in that conversation the matter in dispute was talked over for several hours, and this fact was not known to the losing party until after the making of the award, it was held, this was such misconduct on the part of the arbitrator as to authorize the setting aside of the award, without proof that such conversation had any improper influence with him.
    á. The safer rule, when it appears there has been conduct on the part of an arbitrator which has probably resulted perniciously, or was calculated improperly to influence his judgment or bias him in his action, is to set aside the award which such arbitrator joins in making, without proof that his conduct has influenced the other arbitrators associated with him in hearing the case.
    Writ of Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Knox county; the Hon. John J. Glenn, Judge; presiding.-
    Messrs. Lawrence, Campbell & Lawrence, and Messrs. Sanford & Carney,, for the 'plaintiff in error:
    Arbitrators should so conduct themselves as to prevent the possibility of improper bias or even suspicion. See Morse on Arbitration, 537.

      Like a judge or juror, though hia judgment of the pending controversy he altogether a just one, yet he is false to his duty if he exposes his mind to the chance or danger of perversion. Strong v. Strong, 9 Cush. 570.
    There is nothing singular in the conclusion here suggested, of influences in themselves undue, but altogether short of corruption, being so applied to the mind of another as to impair the validity of an act otherwise lawful. Fox v. Hazelton, 10 Pick. 277; Morse on Arbitration, 106 and 107; Johnson v. Holyoke Water Power Co. 107 Mass. 473; Jones v. Miller, 1 Dall. 205.
    After a man is chosen arbitrator, he ought not to hear a "word of private ex parte conversation on the subject with either of the parties. A court can not say it had no influence upon his mind. Graham v. Pence, 6 Randolph, 537; Morse on Arbitration, 106; Russell on Awards, 205.
    The relations of jurors to litigants are like those of arbitrators, and the same duties are enjoined upon each of them, especially as to keeping their minds free from bias, prejudice, partiality and undue influence. Spurck v. Crook, 19 Ill. 425; Stampofski v. Steffins, 79 id. 306; Wheeling Gas Co. v. City of Wheeling, 5 W. Va. 494.
    All the arbitrators must act together. The parties are entitled to the arguments, experience and judgment of each at every stage of the proceedings, and their bearing and influence on the minds of the others; and an award will be set aside for the intoxication of any one of them, rendering him incompetent. Smith v. Smith, 28 Ill. 60; Morse on Arbitration, 209; Russell on Awards, 537.
    It is held that to the validity of an award, under a common law submission to three persons, upon a stipulation to abide the determination of any two of them, it is essential that all three be present at the hearing of the parties. Thompson v. Mitchell, 35 Me. 281; Rixford et al. v. Nye, 20 Vt. 132; Bliss v. Hay, 2 Tyler, (Vt.) 304.

      And the same ground that will induce a court to set aside a verdict of a jury and grant a new trial, will induce them to vacate an award. Williams v. Craig, 1 Dallas, —; Bassett's case, 2 Cow. 458; Van Cortland v. Underhill, 17 Johns. 405.
    Messrs. McKenzie & Calkins, for the defendant in error:
    Arbitrators can not be heard to say to what matters they gave weight in their deliberations, what processes of reasoning they followed, or what particular evidence influenced them. Denman v. Bayless, 22 Ill. 333; Stone v. Atwood, 28 id. 43; Pulliam v. Pensoneau, 33 id. 378; Claycomb v. Butler, 36 id. 103; Tucker v. Page, 69 id. 183; Hubbell v. Bissell, 2 Allen, 197; Bigelow v. Maynard, 4 Cush. 321; Ward v. Gould, 5 Pick. 291; Morse on Arbitration and Award, 562, 568.
    In the absence of affirmative evidence of fraud, partiality or unfairness, which are never presumed, every intendment is in favor of the award. Root v. Renwich, 15 Ill. 463; Haywood v. Harmon, 17 id. 481.
    A previous knowledge of the facts by an arbitrator will not vitiate his award. Graves v. Fisher, 15 Me. 54.
    While arbitrators must act fairly, their intercourse with the parties upon the subject of the arbitration, untainted with fraud, can not affect their award. Flatter v. McDermitt, 25 Ind. 326.
    Although one arbitrator may have acted fraudulently and corruptly, if the other two acted honestly the award must stand, (Plummer v. Saunders, 55 N. H. 28,) so that one is related to the other party. Davis v. Forchie, 34 Ala. 107.
    Courts will not set aside an award because the compounder misconstrued a deposition, nor because he had in his possession vouchers relative to the case that he had received prior to the time he was chosen. Bird v. Laycock, 7 La. Ann. 171.
    The court should not set aside the award, and as to acts held not such misconduct as to justify setting the same aside, counsel cited many other cases, among which are Fisher v. Towner, 14 Conn. 26; Wheeling Gas Co. v. City of Wheeling, 5 W. Va. 492; Herrick v. Blair, 1 Johns. Ch. 101; Devereaux v. Burgman, 11 Ind. 490; Walls v. Wilson, 28 Pa. St. 514; May v. Yancy, 4 Leigh, 462; Rheem v. Allison, 2 S. & R. 113; Ellmaker v. Buckley, 16 id. 72; Dougherty v. McWhorter, 7 Yerg. 254; Brown v. Leavitt, 26 Me. 251; Morville v. American Tract Society, 12 Mass. 140.
   Mr. Justice Walker

delivered the opinion of the Court:

The parties to this record had business transactions run-. ning through a number of years, and being unable to adjust their differences, they agreed to submit them to the award of three arbitrators. They were duly selected, and heard the evidence and the parties, and found and published an award that plaintiff in error pay to defendant in error $1100. By agreement this award was set aside, and the matters again submitted to the award of Henry Sisson, John Becker, and Jonathan Hubbell. After a hearing of the witnesses they published an award that plaintiff in error pay to defendant in error $704.62. Thereupon Moshier filed this bill to set aside the award and enjoin its collection.

The bill alleges several grounds, among which is the charge' of misconduct of Hubbell, one of the arbitrators. It charges that he, after being selected to act, saw Stephens, who had been one of the arbitrators when the case was previously tried, and was fully informed as to all of the particulars of the controversy, and talked freely with him in reference to the ease; that Hubbell was thereby prejudiced, and rendered incompetent to act as an arbitrator; that plaintiff in error was not informed of the fact, nor did he learn it, until after the award was executed and published. He charges that by reason of the misconduct of this arbitrator he was greatly injured and wronged. On a hearing in the circuit court it was found that the arbitrator was incompetent to act, the award was not, for that reason, binding, and the court decreed that it be vacated and set aside. Thereupon Shear appealed to the Appellate Court for the Second District, where the decree was reversed, but the case was not remanded to the circuit court, whereby its decree is final. Thereupon Moshier prosecutes error, and urges a reversal of the decree of the Appellate Court.

In the view we take of this case, it becomes necessary to consider but one question, and that is, whether the misconduct of Hubbell was such as to require the award to be set aside and vacated. That his having a full, free and unrerestricted conversation with Stephens, who was fully informed as to all of its details, was misconduct, is not denied. After being selected, it is the duty of an arbitrator, like a juror, to act fairly and impartially between the parties and on the evidence adduced before them on the trial, and entirely independent of all outside influences, and what will be misconduct on the part of a juror will, as a general rule, be such on the part of an arbitrator. Neither has a right to learn facts except as brought to his attention on the trial. It is gross misconduct for either to seek evidence or the opinions of others in regard to the case, or anything material to its decision in another mode. It is virtually conceded that had defendant in error conversed with the arbitrator, the award being in his favor, it would have been set aside, on the presumption that it was obtained by improper influence, and the same would be equally true had an agent or the attorney of defendant in error conversed with the arbitrator in reference to the controversy.

Stephens testifies that Hubbell was at his house, and they conversed in reference to the former arbitration. He did not remember whether Hubbell inquired in reference to it, as he voluntarily introduced the subject; that the matter was talked over, and he informed Hubbell what items they allowed, and what they rejected; that he told him they allowed Shear only such items as were corroborated by evidence of other persons. Bice said to Hubbell that Moshier believed that his 'mind was made up through the influence of Stephens. He replied he did not think. Stephens intended to influence him. He did not say he was influenced by what Stephens told him.

In his testimony Hubbell says he had known Stephens twenty years prior to the conversation, and their relations had been friendly, and he held him in high esteem; that he went to his house in the evening—they had three or four hours conversation that evening. “We talked a good deal about it, but I don’t recollect that he gave me a full account of the case, or I will say further, that it was talked about freely,—nothing was kept back for delicacy. ”

It is true that there is no positive proof that the arbitrator was influenced in his opinions by the conversation, but we have no reason to expect such proof in such cases. However much he may have been influenced, it is scarcely probable that he would be aware of the fact. Such effects are seldom perceptible or consciously produced. They are usually imperceptible, and unknown to the subject of their influence. However honest and upright Hubbell may be, and however he may feel free from influence produced by his conversation with Stephens, still it is almost impossible to believe that such a conversation with a friend of long standing, and for whom the arbitrator had a high regard, did not produce strong, if not controlling, convictions on his mind, and however desirable it may be to terminate protracted contention, it is more desirable that justice shall be administered, free from all improper or corrupting influences,—that the mode of settling contests by arbitration shall be kept pure, and free from improper influences. Here, whatever the motive of the arbitrator, he was subjected to improper influences, and whether or not it operated to the injury of plaintiff in error, it was calculated to operate to the prejudice of the parties, and to sanction it would form a dangerous precedent. We can not know what influence it may have exerted in 'this case. It is sufficient that it was calculated to produce improper results.

To sustain this award would be to sanction and justify the means by which the whole system of arbitration would be perverted and corrupted. If we hold that the party thus objecting must prove that undue influence actually resulted, then the objection would seldom be available, however corrupt the influence. Such things can seldom, owing to "precautions taken by those" engaged in such practices for concealment, be shown by positive evidence, hence the safer rule is, to hold that when it appears there has been conduct calculated to result, and which has probably resulted, perniciously, to set aside the award. It is clear that had Shear-done what Stephens did, or had he procured another to do the same thing, there could not have been the slightest hesitation in setting aside the award, and yet the influence of Stephens was equal to, if not more potent than that of Shear would have been, on the mind of the arbitrator, who was his intimate friend, and whom he held in high esteem. What more powerful influence could have been exerted ? If we sustain this award we shall license every person, whether a partizan or not to the contest, to enter into the conflict, and exercise his full influence, whether inspired by friendship or hatred of the parties to the contest, only excluding the unseemly and improper conduct of the parties themselves, then- attorneys or agents. We must therefore hold that the conduct of Hubbell was improper, to an extent that rendered him incompetent to act in the case.

It is, however, urged, that the submission was to three arbitrators named, or to any two of them, and the award published by the three, or any two of them, should be binding on the parties to the submission, and that it was signed and published by all three, and hence the award is made and published by two of the arbitrators, against whom there is no charge of misconduct of any kind. This reason is more apparent than real. The misconduct of a juror has always been held ground for setting aside a verdict, notwithstanding the other eleven concurred with him in the finding; and it is because it is impossible to know the extent of his influence over the minds of the other jurors, and because that fact is incapable of proof, and can not be known, the courts, to avoid the probability that the misconduct of one has influenced the others, to keep the stream of justice certainly pure will set the verdict aside. So, here, no one can know the extent of Hubbell’s influence over the minds of the other two. For aught we can know, it may have controlled in making up the award that was published. Plaintiff in error had the right to have all who acted, free from bias and improper influences produced after their -selection. Had but the other two acted, then we can see no objection to the award. But all of the members who did act were not free from improper influences, and he was thus deprived of an essential right secured to him by the law, and for that reason the award should be set aside, and the circuit court committed no error in the decree it rendered, but the Appellate Court erred in reversing it.

The decree of the latter court is reversed, and the cause remanded.

Decree reversed.