text:
    Hovey et al., plaintiffs in error, vs. Holcomb et al., defendants in error.

      Error to Cook Counti/ Court.

    All trusts in this state, except resulting trusts, must be evidenced or created by writing.
    If one honestly conveys property, by an absolute deed, to another, believing that it will bo reconveyed or transferred, as the first grantor may direct, without intending to injure his creditors by such conveyance, and where they would not be injured if the real purposes of the grantor should he carried out, as intended by him, such conveyance is not fraudulent, as to creditors.
    To set aside a conveyance, as fraudulent, the bill should contain sufficient averments, showing the manner of the fraud.
    Where a parol trust is set up in a bill, and the statute of frauds is interposed, its effect cannot he avoided.
    This was a bill in chancery, filed by the defendants in error, setting forth that Gerry Bates was indebted to them, by virtue of a judgment obtained against him, in the sum of $ 2,450; that Bates agreed with John L. Hovey, that Hovey should come to Illinois, and, with money to he furnished by Bates, should enter lands and make improvements, for their joint benefit—they being brothers-in-law; that Hovey came, and, with his family, settled at Cottage Hill; that Bates and Hovey being embarrassed, the lands were purchased in the name of John Addison Warner, for the use and benefit of Hovey and Bates; that in February, 1844, John L. Hovey entered eighty acres of land in the name of Darius A. Hovey, who, at his request, conveyed the same to one Scofield, and Scofield to the said Warner; that divers lands were purchased by J. L. Hovey, in the name of Warner, with the money of Bates, in trust, for the joint benefit of Bates and J. L. Hovey, and that improvements had been made, See.; that Bates afterwards came, with his family, to Illinois; that he and J. L. Hovey disagreed about the dividing of the property, and that J. L. Hovey called in Almon Hovey, to aid him in the matter; that A. Hovey purchased claims against J. L. Hovey and Bates, and prosecuted the same, and also filed his bill in chancery against Bates, J. L. Hovey and Warner, and issued executions against the land held by Warner, in trust, for Bates and J. L. Hovey; that Warner, J. L. Hovey and Bates agreed to convey the land to A. Hovey, in trust, upon the terms and conditions expressed in the opinion of the Court. The bill prayed that the conveyances made to A. Hovey and others be set aside, and that a new trustee should be appointed, and the premises be sold by him under the direction of the Court, and the money realized therefrom be distributed in a particular manner prayed for in the bill, and that the interest of Bates should be made subject to the execution issued upon the judgment obtained by the complainants against him; and that all others be enjoined from conveying said land, &c.
    At the May term, 1849, of the Cook County Court, Hugh T. Dickey, Judge, a decree was entered in favor of the complainants. The respondents sued out this writ of error.
    G. Spring, P. Ballingall and J. C. Champlin, for plaintiffs in error.
    J. M. Wilson and J. H. Collins, for defendants in error.
   Opinion by Mr. Justice Catón :

The complainants were judgment creditors of Bates, and had levied their execution upon the premises described in the bill, and known as the Cottage Hill farm. With the exception of one lot, the land had been entered in the name of Warner, with the funds of and in trust for Bates and John L. Hovey. One lot had been entered in the name of' another, but had been transferred to Warner, upon the same trust, as is alleged. On the 28th of September, 1846, Warner conveyed the premises to Almon Hovey, the cestui que trusts and their wives joining in the conveyance. Afterwards, Almon Hovey conveyed to Darius A. Hovey, who then conveyed to Lamb. Almon Hovey had purchased certain demands against Bates and also against John L. Hovey, at a large discount, and had obtained judgments upon those demands. The bill, after showing that Warner held the title, in trust, for Bates and John L. Iiovey, and that differences had arisen between the cestui que trusts, which rendered it desirable that their interests in the premises should be divided; and after showing that Almon Hovey had purchased the demands and obtained judgments against Bates and John L. Hovey, proceeds to show the conveyance of the premises to Almon Hovey, as follows : “ And your orators further show unto your honor, that they have been informed, and believe and so charge the fact to be, that on or about the said 28th day of September, A. D. 1846, the said John Addison Warner, John L. Hovey and Gerry Bates, to avoid further expenses, to heal difficulties between kinsmen and friends, to provide for the payment of certain debts, and to adjust their several matters upon an equitable basis, agreed to convey the whole of said premises to the said Almon Hovey, in trust. (The said John Addison Warner, John L. Hovey and Gerry Bates, then and there having perfect confidence in the integrity, responsibility and fidelity of the said Almon Hovey, as such trustee.) And the said John Addison Warner, and the said John L. Hovey and his wife, and the said Gerry Bates and his wife, then and there, to wit, on the said 28th of September, in the year last aforesaid, at Cottage Iiill, in the county of Du Page aforesaid, did convey to the said Almon Hovey, his heirs and assigns, forever, the whole of the said premises, by a deed, absolute and unconditional on its face, but in truth and in fact, by a deed of trust, to pay certain debts ; to pay the costs which had accrued thus far in the several suits hereinbefore mentioned ; to pay said trustee for his services and expenses, and indemnifying him against responsibilities before that time incurred; and, lastly,' to divide the same between the said John L. Hovey and Gerry Bates, according to their respective interests therein, and as justice should require—it being then and there conceded that the said John Addison Warner had no other interest in the said premises than as a mere naked trustee.” And after stating what debts and costs were to be paid, the bill further proceeds: “ The said Almon Hovey agreed to accept the said deed on the above conditions, and agreed to do what was right in the premises : that no money was paid by the said Almon Hovey, at the time, except for acknowledging the deed and recording the same, a few days thereafter.” The bill then states the subsequent conveyances, by which the title became vested in Lamb, averring a knowledge of the trust in all of the parties.

It was urged upon the argument, that if the averments in the bill do not show that the conveyance to Almon Hovey was fraudulent as to creditors, then that conveyance may be treated as a mortgage, to secure the judgments which he held against Bates and John L. Hovey. But the statements in the bill do not show that that deed was given as a security for those judgments, and to cease to operate when they should be satisfied. Those judgments were already liens upon the interests which the defendants in those judgments had in the premises. The bill shows that it was the design of all parties that the absolute title should pass by that conveyance, for the purpose of providing for the payment of those judgments, and not merely for the purpose of securing them. The grantee needed not the aid of any Court to enable him to pass the absolute and indefeasible title to the premises. The bill shows, that he took, not as mortgagee, but as trustee. If there were no distinction between a mortgagee and a trustee, where the object of the trust is to provide for the payment of debts, then there might be some reason for saying that here was some appearance of a mortgage. But there is a very wide distinction, and this case very fitly illustrates it. Equity may allow an apparently absolute deed to be shown to be a mortgage, by a parol defeasance, while by the fourth section of our statute of frauds, all trusts shall be created or evidenced by writing, except resulting trusts, or else they are void. If Hovey was a mortgagee, that may be shown by parol; if he was a trustee, that can only be established by written evidence. The bill makes no pretence of a mortgage ; and, unless the one is the other, then he was a trustee and not a mortgagee. Numerous instances might be referred to, showing the broad distinction between the two, but as they wiil readily present themselves to every lawyer, we do not think it necessary to pursue the discussion. There is no pretence of a mortgage in the bill, nor do the facts stated show that the conveyance was intended as a mortgage.

We entertain no doubt, then, that if the complainants in this case succeed at all, it must be upon the ground that these conveyances were fraudulent, as to creditors. But all idea of fraud in the conveyance from Warner, Bates and John L. Hovey to Almon Hovey, is expressly repudiated by the bill, in the most explicit and unequivocal terms; and whatever proof there may be in the record, tending to show that that conveyance was, in fact, fraudulent, as to creditors, so far from supporting the record, is in direct opposition to it. The bill shows, that that transaction was for honest and praiseworthy purposes, and without any design to hinder and delay any of the creditors of Bates improperly. While the complainants thus characterize the transaction in their bill, they cannot give it a different character in their proof, nor ask for a decree based upon a different state of case. The bill shows a clear case of parol trust, not resulting or arising by operation of law, but' created by a parol agreement of the parties, in opposition to the express terms of the deed. It shows a case of misplaced confidence by the grantors, unmixed with any fraudulent design on their part. If no fraud was intended, then no fraud was perpetrated. If one honestly conveys property, by an absolute deed, to another, whom he supposes to be his friend, really believing that he will reconvey or transfer it to another, as the grantor may direct, without reflecting at the time that he is indebted or supposing that his creditors can be affected by the conveyance, and where they would not be injured if the real purposes of the grantor were carried out by the grantee, according to the understanding of the parties, such conveyance is not fraudulent, as to creditors. There is wanting that essential ingredient of fraud, a design to hinder and delay creditors. They may, it is true, suffer by the misplaced confidence of their debtor, but that is as much their misfortune as if he had honestly sold his property for half its value, and received his pay. It is no harder for the creditor to suffer from the credulity of his debtor than from his folly.

But it was insisted, that by a subsequent- clause of the bill, fraud is sufficiently averred. After giving a history of the several conveyances, as well the one above stated as those from Almon Hovey to Darius A. Hovey, and from him to Lamb, with some statements showing that the two last conveyances were designed to defraud Bates and J. L. Hovey, the bill proceeds : ££ And your orators further show unto your honor, that the doings and proceedings of the several parties hereinbefore mentioned, and especially the doings and proceedings of the said Almon Hovey and Darius A. Hovey, and the said Augustus C. Lamb, so far as he has acted therein, if at all, are fraudulent and corrupt, and tend greatly to your orators5 injury.55 Previous to this, there are but two allegations of fraud in the bill. The first is, that Almon Hovey fraudulently refused to execute the trust which he had assumed ; and the second is, that it was fraudulently represented that Lamb was a resident of Pennsylvania, whereas, in truth, he was a resident of New York. The first is the averment of a fraudulent design against the cestui que trusts by the trustee, in refusing to execute the parol trust; and the second is, of a fraudulent representation of a fact, which is entirely immaterial. The material averment of fraud, if contained in this bill at all, is to. be found in the passage last quoted. Fraud must be made out, by showing fraudulent acts, or a fraudulent intent. Where the acts are admitted to be bona fide, and the intent honest, the conclusion, that they were fraudulent and tend to the injury of the complainants, does not make them so. It may, sometimes, be a sufficient averment of fraud to say, that a certain specified act was fraudulently done, or that it was done, and that it was fraudulent, without particularly showing how it was fraudulent—although that general mode of pleading ought not to be encouraged; or, fraud may be sufficiently averred, by setting forth the particular manner in which the act was done, and the particular end and design to be accomplished. Where the facts thus stated show that a fraud was designed and perpetrated, that may be a sufficient averment of the fraud, although the pleader does not state the conclusion which the law itself will draw, that the act was fraudulent. This is the most that can be made out of the cases referred to by the complainants5 counsel. But where the pleader states an act, which he admits was honest, assigning honest motives for the act, and detailing circumstances showing that it was honest, it is a solecism for him afterwards to say that it was fraudulent. Undoubtedly there are certain acts which the law will intend were fraudulent, irrespective of the motives of the parties, in consequence of the effect which they would produce upon the rights of third parties, acquired subsequently, in ignorance of the acts done, as in the case of the sale of chattels, where there is no delivery of possession; hut this principle has no application to a case like the one before us. The trust set up in the bill existed only in parol, and to this the statute of frauds is interposed, and upon such a trust its effect cannot be avoided.

The decree of the Cook County Court is reversed, with costs, and the suit remanded, with leave to the complainants to amend their bill, as they shall be advised.

Decree reversed.


source: Caselaw Access Project

author: Opinion by Mr. Justice Catón :

license: Public Domain

text:
    Robert V. Glover, plaintiff in error, vs. John Fisher, junior, and Soloman Hay, defendants in error.

      Appeal from Stephenson.
    In an ordinary contract for the sale of land, where credit is given, and a conveyance is to be made on the payment of the last instalment, where time is not expressly the essence of the contract, a Court of Chancery may, in its discretion, enforce the performance of such a contract, although the payments may not have been promptly made. But, in so doing, the Court will inquire into all the circumstances attending the delay, and the conduct of the parties.
    A party who purchases land which another has contracted to convey, with a full knowledge of that fact, takes it subject to the rights and equities of the claimant.
    This was a bill filed by the appellant, in the Stephenson Circuit Court, to compel a specific performance. The cause was heard on bill, answers and proof, by Sheldon, Judge, at the March term, 1850, of that Court, and the bill was dismissed. The appellant, complainant below, brought the cause to this Court, assigning for error the dismissal of the bill. The whole case is sufficiently stated in the opinion of the Court.
    M. P. Sweet, for appellant.
    Marsh & Wight, for appellees.
   Opinion by Mr. Justice Catón :

This bill was filed by the purchaser, to compel the specific performance of a contract for the sale of land. The bill sets forth a contract, entered into between the parties, on the 19th of April, 1847, by which Glover agreed to pay Fisher, for the premises in question, two thousand one hundred dollars—of which, the sum of nine hundred dollars was to be paid at the execution of the agreement—four hundred dollars on the first day of October following—and the remaining eight hundred dollars on the first day of May, 1848; at which time Fisher agreed to execute a conveyance, and until which time Fisher was to retain possession of the premises. The bill also avers, that, at the time of the execution of the agreement, the first payment of nine hundred dollars was made, the receipt of which is indorsed on the agreement; that on the 21st of June, 1847, Glover paid to Fisher, in part payment of the purchase money, the sum of two hundred and twenty dollars ; that at the time of the execution of the agreement, Glover held a note, executed by the father of the defendant, for three hundred and thirty-nine dollars and some cents, which would mature shortly before the October payment would fall due, and that it was agreed between the parties that that note should be received by the defendant, in part payment of the purchase money, but that for the purpose of insuring promptness on the part of the maker of that note, Glover should retain possession of it; that the complainant, as well as his agent, William Glover, by whom the contract was made, resided, at the time, in Pennsylvania, to which place the agent returned, soon after the contract was executed, relying upon the Fisher note to complete the October payment, and intending to return in time to make the last payment, on the first of May. On that day, William Glover, the agent, tendered to the defendant the sum of six hundred and eighty-one dollars and eighty-eight cents, together with the said note, and demanded a deed, and that Fisher refused to receive the money and note, or to execute a conveyance; that, on the 14th of July, 1849, Glover tendered to the defendant the sum of one thousand and seventy dollars and sixty cents, in full payment of the purchase money and interest, and again demanded a deed, which the defendant refused to execute, or to accept the tender. The money last tendered was brought into Court with the bill.

The bill also avers, that Fisher, on the 8th day of March, 1849, conveyed the premises to the other defendant, Hay, who, at the time, was informed of the complainants rights in the premises.

To that portion of the bill which avers the agreement to apply the Fisher note, the defendant Fisher pleads the statute of frauds. In his answer, he admits the making the agreement, as charged, but denies the receipt of the first payment of nine hundred dollars, as is alleged; but he avers, that the agent pres ented some old claims against him, consisting of two notes for one hundred dollars each, and an account for twenty-six dollars, and, also, a note for one hundred dollars, executed by one Peter D. Fisher, which was not then due; that the amount of the principal and interest of these claims, together with the P. D. Fisher note, was four hundred and thirty-four dollars, and that the said defendant was induced to allow the sum of four hundred and sixty-six dollars, upon and towards the said first payment of nine hundred dollars, for no other consideration than as usurious and illegal interest. The amount of this portion of the answer is, that he denies that he received the nine hundred dollars, but that he agreed to consider it as paid, by allowing legal demands for four hundred and thirty-four dollars, and four hundred and sixty-six dollars, for the previous forbearance of the other claims, which he calls usury. He denies any agreement to take his father’s note, in part payment, as is alleged, and even denies all knowledge of the existence of such a note. He admits the receipt of the two hundred and twenty dollars, on the first of May, as averred in the bill, to apply on the October payment; and admits, that, on the first of May, 1848, W. Glover called on him, and exhibited and counted some money, the amount of which he does not knoiv, but believes .it was five hundred and eighty-seven dollars and fifty cents; but is advised that what he did then did not amount to a tender, and states that Glover said, at the time, that he had not quite enough, but that he had fifteen days in which to get the balance, and that the defendant declined to accept the money offered. He denies that Glover then presented or offered the note, as stated in the bill.

The answer then avers, that soon after the defendant made the contract with Glover, he agreed to purchase a farm of one Kerr, for the sum of one thousand two hundred dollars, and agreed to make payment to Kerr at the same times that Glover had agreed to pay him, of which he informed Glover, and told him that he relied upon the money which he was to receive from him to meet his engagements with Kerr. That in August, 1847, he put in twenty-five acres of fall wheat, on the Kerr farm, at an expense of fifty dollars, and that, in consequence of Glover’s failure to pay the balance of the October instalment, he was obliged to abandon the purchase from Kerr, by which he lost the expense of putting in the said wheat, and also the advantages of that purchase, which he believed to have been from five to eight hundred dollars. Admits the tender on the 14th of July, 1849, of one thousand and seventy dollars and some cents, and that he refused to execute a deed. Admits that he conveyed the premises to Hay, on the 8th of March, 1849. Says, that notwithstanding Glover’s default, he was ready, willing and anxious to repay to the complainant all that he had advanced towards the payment of the two thousand one hundred dollars ; and to this end, the defendant and William Glover, in the month of March, 1849, had a reckoning of all the defendant had so received, when it was found that he had received, except for interest, as stated in the answer, the sum of five hundred and forty-six dollars, which the defendant then offered to repay to W. Glover, hut that he refused to receive the same, but denies that he is now under obligation to pay the same.

The substance of Hay’s answer is, that he purchased, with notice of the complainant’s interest.

There is, in reality, but one really material averment in the bill which is fully and explicitly denied in the answer of Fisher, and that is the arrangement which was charged to have been made, by which the note of the defendant’s father should have been taken in part payment of the purchase money. It was supposed upon the argument, that it was denied that the first payment of nine hundred dollars was made; but this is not so. It is true, that Fisher’s answer, at first, denies his having received “ the sum of nine hundred dollars upon the first payment,” but not feeling quite satisfied to leave'the matter there, he goes on and gives his account of what, in fact, did take place, by which he shows that that payment was made to his satisfaction, and that his denial was nothing but the sheerest evasion or special pleading. If he can, in that way, reconcile his own conscience with such a denial, he cannot satisfy this Court by such literal expressions. He at last admits, in his answer, that he did receive, what, at the time, he understandingly and voluntarily agreed to accept, in full payment and satisfaction of that first instalment of nine hundred dollars, and at the very time, too, and as a part of the same arrangement, when the price of the property and terms of payment were agreed upon. It was a part of the same agreement, that nine hundred dollars should be paid down, and that it should be paid in the particular way set up in the answer. There is hardly an attempt to disguise that fact in his answer. But then he complains that he agreed to allow four hundred and sixty-six dollars towards the nine hundred dollars, for the previous forbearance of certain advances, which were applied towards making up the balance of that first payment; and this four hundred and sixty-six dollars he calls usury. Butin that there was no usury; it was rather a bonus. There was no previous corrupt agreement, or even understanding, that more than lawful interest should be paid ; and, according to his own statement, he was under no sort of obligation or agreement to pay any part of that which he calls usury; but, for some cause—and to us the motive is immaterial—when he comes to settle up for the principal and legal interest, he voluntarily allows towards the first payment the further sum of four hundred and sixty-six dollars. The parties might, if they had seen proper, have agreed to call the first payment one thousand dollars, and that the purchaser should be allowed one hundred dollars, because he was a clever man, or for his good looks, or any other fanciful consideration, and yet, we imagine, it would be considered a good payment, so long as it was a part of the agreement, by which the price was fixed, that it should be thus paid. There is little doubt that if Fisher had not agreed to allow the bonus of four hundred and sixty-six dollars, that then the first payment would have been fixed at four hundred and thirty-four dollars, when the result would have been the same.

But while engaged with this part of the defendant’s answer, we may as well dispose of another consideration connected with it. All the evidence in the case shows, that the defendant, in his answer, has designedly distorted, if he has not wilfully misrepresented the facts from which that first instalment was agreed to be satisfied. It is shown, beyond all controversy, by the testimony of three or four witnesses, that the two advances of one hundred dollars each, made in 1837 and 1839, by William Glover, to the defendant, were made for the express purpose of being invested in the purchase of land, for the mutual benefit of the parties, and that the identical land in question had been purchased with the money thus advanced. At the time the money was advanced, receipts were given, showing the use to which it should be applied. And these are what the defendant calls old claims—consisting of notes given in 1837 and in 1839. A susceptible conscience, certainly, would have prompted him to have told the whole truth, and explained upon what terms these advances were made. As to the facts, thus far, there can be no doubt, and it is equally clear that they must have been in the recollection of the defendant when he made his answer, for several of the witnesses speak of having learned them from the defendant’s own lips recently. But this is not all. The testimony of William Glover explains how this sum of nine hundred dollars was made up, from what the defendant pretends was so small a fund. He says, that he had previously transferred his interest in those receipts to his brother, the complainant, as whose agent he came out to settle up the business. The parties could not agree as to the relative proportions of their respective interests in the premises, the defendant having resided upon and improved the land. They finally agreed to leave the matter to the decision of the defendant’s father, who decided the farm to be worth two thousand one hundred dollars; that if the defendant kept it, he should pay the complainant eight hundred dollars ; and that, if the complainant bought it, he should pay the defendant one thousand three hundred dollars ; and that, thereupon, it was agreed that the complainant should take the premises upon those terms. Here we see that the arbitrator fixed the value of the complainant’s interest in the premises, which had originated in the advances made by William Glover, and with which the premises had been durchased, at eight hundred dollars, and that with that and the one hundred dollar note, the first instalment, called nine hundred dollars, had been made up. Now, if this account, given by William Glover, is true, then every thing about the first payment is plain and easily understood. In the material parts of this statement, Glover is corroborated by Clinkner, who testifies, that in July, 1848, the defendant told him that Glover’s interest in the farm was reckoned at eight hundred dollars, and that with that and the P. D. Fisher note, the first payment, of nine hundred dollars, was made, which was indorsed on the agreement. The manner in which they arrived at the value of that interest, was, comparatively, of little moment—the existence of that interest being the important fact. That arbitration, and the award, were not facts to establish which the testimony of two witnesses was required. They were not substantive facts, upon which the party relied as a ground of relief. They arose incidentally, and became material only for the purpose of establishing the existence of, or explaining a certain other fact, which is averred in the bill, and upon which reliance is placed. That fact is, the payment of the first instalment, called nine hundred dollars. It may be true, that the answer inferentially denies this whole statement given by William 3 but, if so, it is by giving another statement, which is inconsistent with it. But that statement is new matter, introduced into the answer, in explanation of a denial of an averment in the bill, and is not, of itself, responsive to the bill. The answer is not evidence of such new matter, and, certainly, it is competent to prove a different statement of facts, by the testimany of one witness, and William Glover’s testimony would be sufficient, of itself, if it were unsupported by Clinkner.

It has been already stated, that the answer denies the statement in the bill that it was agreed that the note of John Fisher, senior, for about three hundred and thirty-nine dollars, should be received in part payment of the purchase money. In support of this averment in the bill, there is only the testimony of William Glover, unsupported by circumstances established by other proof sufficient to overcome the answer. This averment, then, is not established. After the payment of two hundred and twenty dollars, made on the first of June, which was properly applicable to the October instalment, there remained the sum of one hundred and eighty dollars, which should have been paid on the first day of October. This was not paid; nor do we again hear of the complainant or his agent till the first of May following, when the last instalment, of eight hundred dollars, fell due. At that time the agent again appeared, and tendered to the defendant about the sum of six hundred dollars. We say about that sum, for the precise amount of that tender is not clearly established. We lay out of view the inquiry, whether the note of John Fisher, senior, was tendered at that time or not, for, as we have seen, the defendant was not bound to receive it, and, hence, it is immaterial whether or not it was embraced in that tender. The defendant refused to accept the money or to execute a deed, assigning as a reason, according to the testimony of one witness, that the complainant had not made the October payment, as he had agreed. The whole conduct of the defendant shows that he relied upon that failure to entitle him to the forfeiture of the money which had been already paid, as we shall more fully see hereafter, although another witness states that at the time of the tender the defendant complained that the tender was insufficient. On the 16th of July, 1849, William Glover tendered to the defendant the sum of one thousand and seventy dollars and sixty cents, and again demanded a deed, with the like result.

This is an ordinary contract for the sale of land, where a credit is given for a part of the purchase money, and a conveyance to be executed upon the payment of the last instalment. There is nothing in the contract attaching any peculiar importance to the day set for the payment of the balance of the purchase money, or, as it is usually termed, expressly making time of the essence of the contract. When called upon to enforce the specific performance of such a contract, it is not, at this day, a question open to discussion, that a Court of Chancery may, in the exercise of a sound legal discretion, overlook the day named for performance, or may excuse the want of strict punctuality in the payment of the purchase money, according to the terms of the agreement, where fair dealing and good conscience seem to require it. In such a case, the Court may, in the exercise of such a discretion, either compel the vendor to go on and execute the contract, by making a conveyance, or compel him to refund the purchase money which has been already advanced. In the exercise of such a discretion, it is necessary to consider the extent of the delay, the amount which had already been paid, and all the circumstances developed, which may have influenced, excused or justified the party, in neglecting punctuality in the payments. Where there can be no excuse for the delay, but it is manifest that the purchaser has wantonly and in the exercise of his arbitrary will or caprice, refused to pay at the time, when he had the means and could have done so as well as not, he cannot, with any propriety, ask the Court to excuse him for his wilful disregard of the specified terms of his obligation, no matter how soon he may have repented of his perverseness, and offered to perform. But such is not this case; nor, indeed, do such cases often occur. In this case, over half of the price agreed upon was paid punctually, and a portion of it some months before it became due. Of the October instalment, two hundred and twenty dollars was paid four months before it fell due, and the remaining one hundred and eighty dollars was delayed till the first of May following, when the last payment became due. At that time a tender of, say six hundred dollars, was made— about three hundred and eighty-six dollars less than the amount then remaining unpaid. This tender the defendant refused to accept, not alone because it was too little, but partly, at least, because the one hundred and eighty dollars had not been paid on the first of October previous, when it fell due. Was that a sufficient reason for his refusal to accept the money ? It seems to us that a pretty satisfactory excuse is found upon this record, why the complainant is not liable to reproach for the want of punctuality in paying the balance due on the first of October, and even for his not having made a sufficient tender on the first of May following. Now, although we are bound to say, by the rules of evidence which govern this Court, that it was not mutually agreed between the parties that the note of John Fisher, senior, should be taken in part payment of the purchase money, yet it is manifest that the complainant understood that such was the agreement, for his agent, who transacted the business for him, positively swears that such was the case. Both the complainant and his agent resided in Pennsylvania, and were there at the time the October payment fell due, and till late in the following April. It is not remarkable that they should both have rested in perfect security, as to the small balance due on that payment, relying upon their understanding of the agreement. And the same consideration applies to the tender made on the first of May; for, if the note could be included, we should see that that tender was sufficient, or nearly so ; and the defendant did not put his refusal alone upon the ground that a sufficient amount was not then tendered. In determining this question of excuse, the Court may take into consideration any mistake, accident or misfortune, which may have caused or induced the delay. In this case, there is another circumstance, which does not properly come under either of the above heads, and yet we think it may not be entirely overlooked. We have seen that considerably more than half of the October instalment was paid four months before it was due, and the complainant, although conscious that he had no legal right to ask it, may well have supposed that the defendant would not be very exact in insisting upon the strictest punctuality in the payment of the balance of that instalment. At least, such consideration would be most likely to enter into the motives and influence the actions of most men of the class and occupation of these parties, among whom at want of strict punctuality is not considered so great a fault as it is among bankers and in commercial circles. We are to look to the motives of men, and, if they have acted honestly, the Court may overlook even their negligence, unless the contract expressly stipulates a forfeiture. There is, certainly, no difficulty in this case in excusing the complainant for his default in relation to the October payment ; nor do we want a reasonable explanation why the tender made on the first of May was of an insufficient amount. Had the complainant, immediately after that time, made a sufficient tender, and demanded a deed, his right to a specific performance would scarcely admit of a question. But he delayed more than fourteen months, before he again presented himself with the full amount due. For-this delay, then, is he to suffer this forfeiture ? We think not. In determining this question, we must look at the conduct and motives of both parties. There is nothing to show that the delay originated in a design on the part of the complainant to abandon the contract, while there' are many circumstances tending strongly to show that it was the desire and the design of the defendant to enforce a forfeiture against the complainant of what had already been paid, rather than to obtain, in good faith, an execution of the contract. The defendant complains, that, by reason of the default of the complainant, he was obliged to abandon his purchase of the Kerr farm—which, he says, was a very advantageous bargain—as well as twenty-five acres of wheat, which he had put in on that place, at an expense of fifty dollars. That the Kerr property was worth from five to eight hundred dollars more than he had agreed to give for it; and with this loss he charges the complainant. Let us see how this is. Shortly after the sale to Glover, Fisher contracted to purchase the Kerr farm, which is situated in Wisconsin, for one thousand two hundred dollars, and agreed to make payments at the same times that Glover was to pay him; that is, five hundred dollars on the first day of October, and seven hundred dollars on the first day of May. In September, after Glover had paid two hundred and twenty dollars of the October instalment, and before that instalment had become due, Fisher told the witness Snyder, that he “had thrown up his contract for the Kerr farm, and held the amount that he had received from Glover as damages.” On the first day of October, Fisher went to Kerr, and told him that Glover had disappointed him, and that he could not meet the payment; and, thereupon, they agreed to rescind and destroy their contract; which was done. And now he asks that the complainant should be made to bear the consequences of that recession. The complaint, that he was compelled to abandon that purchase, because Glover had failed to meet the whole of the October payment, is a sheer pretence, for at the time he abandoned that purchase, Glover was not in default, and he did not know that he would be. Indeed, at that very moment, while he was in Wisconsin, rescinding his contract with Kerr, for aught that he knew, Glover was at his house, in Illinois, with the money. He had previously determined to abandon that contract, at all events, and then to seek some pretence to throw the responsibility upon the complainant, for we find him, some days before, in a conversation with Snyder, declaring .that he had already thrown up his contract for the Kerr farm. He was not, therefore, compelled to abandon that purchase on account of Glover’s default. The most that can be asked for him is, that he gave up that purchase because he violently suspected that Glover would make default. But that will not help him. As well might Fisher have burned his own barn, and then charged Glover with it, because he really believed that Glover would have burned it, if he had not. Besides, if Fisher had really desired to carry into execution both contracts, he would certainly have applied to Kerr for an extension of time, at least, till he could hear from Glover, and learn what he intended to do. Nor is it probable, in any event, that Fisher would so readily', without a struggle or an effort, have yielded up a bargain, worth from five to eight hundred dollars, for the want of only one hundred and eighty dollars, unless he had had some ulterior object in view. We are not at a loss to discover that object, for he has told us himself, that his design was to obtain a forfeiture; that he designed to retain the one thousand one hundred and fifty dollars which Glover had paid him, and, also, to retain the land. The very design is odious to equity, when the result is attempted to be brought about by the conduct or management of the party claiming the forfeiture. If one party sustains an inevitable loss, by the default of the other, then it is but just that he should be compensated for it; but he must see to it that he himself has not, either by his folly or by design, contributed to the loss of which he complains. The*whole of this transaction, out of which the defendant claims to have suffered so much, and which he seeks to charge to the complainant, leaves an unfavorable impression upon the mind of the fairness of the defendant’s intentions in carrying out the contract of sale. It is true, that the defendant did not receive the nine hundred dollars in cash, but if he is allowed to retain the land, he receives what is equivalent to that amount, for that was made up of a note for one hundred dollars and an equitable interest, to the amount of eight hundred dollars, which the complainant had in the premises sold. It would be unconscionable to let the defendant retain the premises, discharged of this interest, as well as the money which the complainant has already advanced. But it is not to be denied that Glover has been guilty of negligence, and, to a certain extent, knowingly, in not having made the payments according to his agreement. Although it appears that the complainant supposed that the note of John Fisher, senior, was to be taken in part payment of the purchase money, yet it also appears that William Glover, at one time, at least, did not contemplate completing the October payment by an application of this note, for, at the time, he told H. S. Barber to collect and pay the two hundred and twenty dollars, he said he would send a draft for the balance; and again, at the time he made the tender, in May, when informed that he did not tender enough, he seems to have admitted it was so, for he said he had fifteen days to make the balance in. While these circumstances may not put the complainant beyond the pale of relief, they make it proper to impose terms upon him, which would not be allowable if he had been guilty of no default. The further delay of fourteen months is against him; but of that the defendant has had no great cause to complain, for, in the meantime, he has possessed and enjoyed the premises, as well as the use of over half the purchase money; and for the last year, at least, the complainant has laid out of the use of both. We think, on the whole case, that justice and good conscience require, that we should direct a specific performance of this contract; but the complainant will have to pay all the costs in the Circuit Court.

The conveyance of the premises to the defendant Hay presents no impediment, for he purchased with full notice, and took an indemnity from Fisher against this very claim. As the Circuit Court can, more conveniently, carry into effect the decree which should be rendered, the decree of that Court, dismissing the bill, must be reversed, with costs, and the suit remanded, with directions to the Circuit Court to enter a decree, in due form, annulling the conveyance from Fisher to Hay, and decreeing a conveyance from Fisher to the complainant, and, upon the execution of such conveyance, authorizing Fisher to withdraw the deposit. The decree must, also, adjudge the costs of the Circuit Court against the complainant.

Note, by the Reporter.—Mr. Justice Trumbull, in consequence of severe indisposition in his family, was absent during a part of the Ottawa term, and, therefore, did not participate in the decision of all the cases heard and determined at that term.

Decree reversed.


author: Mr. Justice Mulkey

text:
    Andrew W. Rider v. The People of the State of Illinois.

      Filed at Ottawa May 19, 1884.

      1. Witnesses—credibility—the jury to determine. It is the peculiar province of the jury to determine whether any particular witness or witnesses are not worthy of belief, even though they are accomplices; and in passing upon a motion for a new trial, the court will not substitute its own opinion as to the credibility of witnesses for that of the jury.
    2. Same—how to determine as to the weight or credibility to be given to testimony. In determining the weight or credibility to be given to any statement of fact made by a witness in the course of his testimony, it is the duty of the jury to take into consideration all the evidence, whether circumstantial or otherwise, tending to disprove such statement of fact, and which would also include contradictory statements made by other witnesses.
    3. Same—as to credibility of a defendant in a criminal prosecution, testifying in his own behalf—how to be determined. On the trial of three defendants for larceny, the court instructed the jury “that in this State the accused is permitted to testify in his own behalf; that when he does so testify he at once becomes the same as any other witness, and his credibility is to be tested by and subjected to the same tests as are legally applied to any other witness; and in determining the degree of credibility that shall be accorded to his testimony, the jury have the right to take into consideration the fact that he is interested in the result of his prosecution, as well as his demeanor and conduct upon the witness stand and during the trial; and the jury are also to take into consideration the fact, if such is the fact, that he has been contradicted by other witnesses. And the court further instructs the jury, that if, after considering all the evidence in this case, they find that the accused has willfully testified falsely to any fact material to the issue in this case, they have the right to entirely disregard his testimony, excepting in so far as his testimony is corroborated by other credible evidence:” Held, that there was no substantial objection to the instruction.
    4. Accomplice—conviction on his uncorroborated testimony. Whatever may be the rule in other States with respect to the right of a jury to convict upon the uncorroborated testimony of an accomplice, it is well settled that the right exists here, and convictions on such testimony will not be disturbed by this court on that ground alone.
    Writ of Error to the Criminal Court of Cook county; the Hon. John G. Rogers, Judge, presiding.
    Messrs. Van Arman & Vallette, for the plaintiff in error.
    Mr. Luther Laflin Mills, State’s Attorney, and Messrs. Munn & Wheeler, for the People.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Andrew Rider and John Sheridan, impleaded with James Sheridan, were tried before the court and a jury in the Criminal Court of Cook county, at its September term, 1883, for the larceny of a lot of hogs, of the value, as fixed by the jury, of $300, which had been stolen in January of that year from the pens of the Union Stock Yards and Transit Company. The jury found the defendants guilty, and fixed the time of their confinement in the penitentiary at one year. The defendants, by their counsel, entered a motion for a new trial, which, on their application, was not disposed of until the following October term, when the same, on due consideration, was overruled, and judgment entered upon the verdict. Rider, alone, brings the case here, and asks a reversal of the conviction so far as he is concerned. The reversal is asked on two grounds, one of which presents a question of law, the other a question of fact.

It is first objected the court below erred in giving the People’s fourth instruction, which is as follows:

“The court instructs the jury, as a matter of law, that in this State the accused is permitted to testify in his own behalf; that when he does so testify he at once becomes the same as any other witness, and his credibility is to be tested by and subjected to the same tests as are legally applied to any other witness; and in determining the degree of credibility that shall be accorded to his testimony, the jury have a right to take into consideration the fact that he is interested in the result of his prosecution, as well as his demeanor and conduct upon the witness stand and during the trial; and the jury are also to take into consideration the fact, if such is the fact, that he has been contradicted by other witnesses. And the court further instructs the jury, that if, after considering all the evidence in this case, they find that the accused has willfully and corruptly testified falsely to any fact material to the issue in this ease, they have the right to entirely disregard his testimony, excepting in so far as his testimony is corroborated by other credible evidence. ”

It is said of this instruction: “The court finally instructs the jury, that if the testimony given by the defendants is contradicted, then the jury ought to take this fact (of such contradiction) into consideration in determining the weight and influence which they (the jury) would allow to the testimony given by said defendants themselves. ” And why not ? Is it the view of counsel, the jury, in determining the weight or credit to be given to the exculpating statements of the accused, should have gone on and paid no attention to the fact these statements were contradicted by other witnesses ? Do counsel wish to be understood as holding that the contradicted statement of a witness is, as a general rule, entitled prima facie to the same weight or credit' it would be if its truthfulness was not at all challenged ? If such is the law it is difficult to see how any one could ever be convicted where the testimony of witnesses was conflicting. The injustice and unreasonableness of such a rule would doubtless be more apparent to counsel for the defendant if the People, instead of the accused, were seeking to enforce it. Suppose the court below, at the instance of the People, had instructed the jury that in determining the force and effect to be given to the testimony of Harty, who swears positively to the guilt of the defendants, they were not permitted to take into consideration the fact, if such is the fact, that Eider and Sheridan both swore they had no connection whatever with the crime imputed to them, is it not manifest such an instruction would have been erroneous? And yet it would have been warranted by the principle now contended for, unless the defendant’s witnesses are to be governed by one rule and the People’s by another,—a position which of course no one is prepared to sanction. We have always understood that in determining the weight or credit to be given to any statement of fact made by a witness in the course of his testimony, it is the duty of the jury to take into consideration all the evidence, whether circumstantial or otherwise, tending to disprove such statement of fact, which, of course, would include contradictory statements made by other witnesses; and the instruction in question does nothing more than lay down this general principle. We see no substantial objection to it. Indeed, it seems to have been expressly approved by this court in Hirschman v. The People, 101 Ill. 568.

The remaining question to be considered is the sufficiency of the evidence to sustain the conviction. Little need be said on this branch of the case. The case, so far as it depends upon the evidence, is well put by counsel for plaintiff in error. They say: “The testimony on behalf of the People, if true, clearly convicted the defendant, while that on behalf of the defendant, if true, as clearly acquitted him. There was no possible mode of reconciling the conflict between the testimony of the witnesses on the respective sides. The only possible way in which the jury could reach a conclusion and render a verdict on the guilt or innocence of the defendant, was to give credit to and accept the testimony of the witnesses on one side, and discredit and reject the testimony of the witnesses on the other side. ” This is a fair and clear statement of the situation, and the jury have done precisely what counsel for the accused admit they were bound to do, and yet counsel are not satisfied. The contention is, that Harty and Coogan, the main witnesses against the defendants, being confessed accomplices, are unworthy of belief, and the jury therefore should have found the other way; but counsel seem to forget that whether these witnesses were or were not worthy of belief was the pivotal fact upon which the whole case turned, and one which it was the peculiar province of the jury to determine, and to reverse on the ground this question was improperly decided, would, under the circumstances of this case, be but substituting the opinion of this court for that of the jury upon a mere question of credibility of witnesses, which we are not prepared to do. Whatever the law may be in other States with respect to the right of a jury to convict upon the uncorroborated testimony of an accomplice, it is well settled the right exists here, and convictions upon such testimony will not be disturbed by this court on that ground alone. (Collins v. The People, 98 Ill. 584; Friedberg v. The People, 102 id. 160.) But even if the rule were otherwise, the conviction here might well be sustained, as there is clearly evidence in the record corroborating the testimony of Harty and Coogan.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Chief Justice Sheldon

text:
    Anna C. Wieland et al. v. Margaretha Kobick.

      Filed at Ottawa May 19, 1884.

    1. Ejectment—proof of defendant’s possession and claim of title— whether necessary. In an action of ejectment, where the defendant pleads the general issue only, it is not necessary, under the statute, for the plaintiff to prove that the defendant was in possession of the premises, or claimed an interest or title therein.
    2. Infancy—estoppel to disaffirm contract—fraudulent representations. A person is not estopped from setting up infancy as a defence to a contract, by his fraudulent representation at the time the contract was made that he was of full age. So a statement in a deed of a minor that she is “unmarried, and of age, ” is not an estoppel to the disaffir nance of it when becoming of age. The doctrine of estoppel is inapplicable to infants.
    Appeal from the Circuit Court of Cook county; the Hon. John G. Rogers, Judge, presiding.
    Mr. A. A. Exline, for the appellants:
    The evidence is not sufficient to justify a recovery against all the defendants, there being none to connect the three other defendants with Anna C. Haas.
    The court below held that plaintiff was not estopped in a court of law to deny her infancy, when in her deed she states the fact to be that she was of age. At the age of seventeen years and six months she knew that she was not of age.
    It is said in Mathews v. Cowan, 59 Ill. 346, that an infant is responsible for his torts and frauds, and in Davidson v. Young, 38 Ill. 150, it is very clearly intimated that the court would hold the infant estopped from pleading infancy, where, by his representations that he was of age, he induced another to purchase from him. Such a holding is clearly sustained in Kilgore v. Jordan, 17 Texas, 341.

      Mr. C. C. March, and Messrs. Rubens, McGaffey & Ames, for the appellee:
    Defendants below having pleaded the general issue only, it was not necessary for plaintiff to prove that defendants were in possession of the premises, or claimed an interest or title therein. Rev. Stat. 1874, chap. 45, sec. 22.
    A defendant is not estopped from setting up infancy as a defence to a contract, by his fraudulent representations that he was of full age. Merriam v. Cunningham, 11 Cush. 40; Tyler on Infancy and Coverture, sec. 54; Brown v. McCune, 5 Sandf. 228; Lackman v. Wood, 25 Cal. 147; Cook v. Toombs, 36 Miss. 685; Studwell v. Shapter, 54 N. Y. 249; McCoon v. Smith, 3 Hill, 147; Curtin v. Patten, 11 S. & R. 305; Conroe v. Birdsall, 1 Johns. 127; Tucker v. Moreland, 10 Pet. 58; Conrad v. Lane, 26 Minn, 389; Burley v. Russell, 10 N. H. 184.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

This was an action of ejectment, for the recovery of a certain lot of land in an addition to Chicago. There was recovery by the plaintiff, and the defendants appealed.

On the trial in the court below there was introduced in evidence, in defence, a deed from the plaintiff to Emily C. Cummings, in which it is recited that “Margaretha David, (the plaintiff,) unmarried, and of age,” for $3500 conveys and quitclaims to Emily C. Cummings the property in question, and a deed from Emily C. Cummings to Anna C. Haas, one of the defendants. The plaintiff then introduced evidence to prove that at the date of the deed to Emily C. Cummings the plaintiff was a minor, and under the age of eighteen years, and that after coming of age she filed her disaffirmance of the deed, and a demand for possession of the premises, in the recorder’s office of Cook county.

. It is objected that the evidence is not sufficient to justify a recovery against all of the defendants, as there is no evidence to connect the three other defendants with Anna C. Haas. Defendants having pleaded the general issue only, it was not necessary, under the statute, for plaintiff to prove that defendants were in possession of the premises, or claimed an interest or title therein. Rev. Stat. 1874, chap. 45, sec. 22.

The only other question which appellants make upon the record, is as to the effect of plaintiff’s deed to Emily C. Cummings,—whether or not plaintiff was estopped from disaffirming such deed made while she was a minor, she having stated therein that she was of age. The authorities seem abundantly to establish that a defendant is not estopped from setting up infancy as a defence to a contract, by his fraudulent representations that he was of full age. Merriam v. Cunningham, 11 Cush. 40; Studwell v. Shapter, 54 N. Y. 249; Gilson v. Spear, 38 Vt. 311; Burley v. Russell, 10 N. H. 184; Conrad v. Lane, 26 Minn. 389; Brown v. McCune, 5 Sandf. 228. In the latter case the court said: “We are not aware that any case has gone the length of holding a party estopped by anything he has said or done while he was under age, and we think it would be repugnant to the principle upon which the law protects infants from civil liabilities in general.” And further on: “We are clear that the doctrine of estoppel is inapplicable to infants.”

The conclusion, we think, from the authorities, must follow, that the statement in the deed of plaintiff that she was of age is not an estoppel to the disaffirmance of it.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Scott

text:
    Orrin L. Mann et al. v. John H. McKiernan.

      Filed at Ottawa May 19, 1884.

    1. Appeals — reviewing controverted questions of fact. In trespass against a sheriff for levying upon and carrying away goods under an execution, it is a question of fact depending upon evidence whether a sale of the goods by the defendant in the execution, to the plaintiff, was made in good faith and for a valuable consideration, or was made with intent to hinder and delay the vendor’s creditors; and so as to the value of the goods, and whether the damages are excessive. The finding of the Appellate Court the same as in the trial court is conclusive, and this court can not consider whether the verdict is contrary to the evidence, or the damages are excessive.
    2. Ebrob will not always reverse—of instructions that could have worked no injury. In trespass against a sheriff for levying upon goods claimed to be the property of the plaintiff, under an execution against the person from whom the plaintiff had bought the goods, the sheriff claiming the transfer to have been fraudulent, it appeared the levy was also made upon property which the plaintiff had purchased of persons other than the defendant in execution. The court instructed the jury that the plaintiff was entitled to recover for this last mentioned property, irrespective of the ownership of the goods bought of the defendant in execution, unless plaintiff, before the levy, by denying that any of the property levied on was his, induced the sheriff to so believe and to levy on the whole. The jury found that all the goods levied on were the property of the plaintiff: Held, that the error in such instruction, if there was any, could have done the defendant no harm.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Messrs. Storck & Shuman, for the appellants.
    Messrs. Flower, Remy & Gregory, and Mr. John C. Chumasero, for the appellee.
   Mr. Justice Scott

delivered the opinion of the Court:

This suit was brought in the Superior Court, by John H. McKiernan, against Orrin L. Mann, George W. Sheldon and John G. Wilson. The declaration is in the usual form in trespass cle bonis asportatis, and to which all of defendants pleaded the general issue. The defendant Mann also filed a special plea, justifying the taking of the goods under an execution which came to his hands as sheriff, that was issued out of the Superior Court on a judgment rendered in that court in favor of his co-defendants, and against one Samuel Kirchoffer, who, it is averred, was the owner of the goods in controversy. On the trial, plaintiff obtained a verdict against all of defendants for the value of the goods seized and carried away by the sheriff, on which the court rendered judgment. That judgment was affirmed in the Appellate Court for the First District, and defendants bring the case to this court on their further appeal.

Plaintiff claimed, in the trial court, to have bought the goods in controversy of Samuel Kirchoffer, the execution debtor, or from Kirchoffer & Archer, (the latter being a silent partner with Kirchoffer,) and that he was in the actual and open possession of the same when such goods were seized by the sheriff and carried away. Whether the sale of the goods to the plaintiff by the former owner was in good faith and for a good consideration, or was made with the intention to hinder and delay their creditors in the collection of their just claims against the judgment debtor, and for the latter reason voidable as to existing creditors, were questions of fact, depending upon evidence for their solution. The good faith of the transaction was one of the issues submitted to the jury. The evidence bearing on that question is quite voluminous, and the verdict and judgment in the trial court sustained the validity of the sale. The affirmance of that judgment in the Appellate Court implies a finding of the facts in the same way, and of course that finding of the latter court, under the statute, is conclusive, so far as this court is concerned. It is for that reason the point made, the verdict is “contrary to the evidence, ” will not he here considered.

The value of the goods taken from plaintiff is also a question of fact, and whether the damages found by the jury are excessive, can not be considered as a question of law open to review in this court. Previous decisions of this court, so recently made as to be familiar, are conclusive on this branch of the case.

It appears that after the alleged purchase of the principal stock, plaintiff invested between $40 and $50 in periodicals, which were taken by the sheriff with the other goods, and in reference to these goods the court instructed the jury plaintiff was entitled to recover for such goods, irrespective of the ownership of the other property, unless plaintiff, before the levy, by denying that any of the property levied on was his, induced the sheriff to so believe and to levy on the entire stock, including the recent purchase. Whether the charge of the court in this respect was correct need not now be considered, for it is apparent, if it were erroneous, the result shows it did defendants no harm. The jury found the entire stock belonged to plaintiff, and it is manifest they had no occasion to consider whether they should find the value of the more recent purchase, to which the instruction had exclusive reference, in favor of plaintiff. There was no necessity for considering that phase of the ease, and it is not probable it was done. The error contained in the charge, if any existed, could not have been prejudicial to the defence. Nor was there any error in refusing the instruction asked by defendant. All that it contained that was pertinent to the issues involved, was embodied in the instructions given, and it would have answered no good purpose had the court repeated it a second time.

The judgment of the Appellate Court must be affirmed.

Judgment affirmed.


author: Mr. Justice Walker

text:
    Charles J. Johnson et al. v. Whiteside County.

      Filed at Ottawa May 19, 1884.

      1. County—attorney’s fee—where attorney defends a criminal by appointment of court. An attorney at law appointed by the court to defend one on a trial of an indictment, who does defend, is not entitled to recover of the county in which the trial was had, any compensation for his services. An attorney takes his license with its burdens, among which is, to defend persons charged with crime when required by the court.
    2. Criminal law—chity of court to assign counsel to prisoner. Section 422 of the Criminal Code, making it the duty of the court to assign counsel to a person charged with crime when he is unable to employ one, conferred no new power, nor did it impose any additional duty. It but formulated the common law already in force.
    Writ of Error to the Appellate Court for the Second District ;—heard in that court on writ of error to the Circuit Court of Whiteside county; the Hon. John V. Eustace, Judge, presiding.
    Mr. C. C. Johnson, for the plaintiffs in error.
    Mr. Walter Stager, for the defendant in error.
   Mr. Justice Walker

delivered the opinion of the Court:

At the August term, 1882, of the Whiteside circuit court, seven indictments were returned against four persons, for forgery. The accused were unable to employ counsel, and plaintiffs in error were, without their consent, appointed by the court to make their defence. The case against two of the accused was tried, plaintiffs in error appearing for them, and they were convicted, and the others pleaded guilty, and all were sentenced to the penitentiary. The judge who appointed plaintiffs in error to defend, gave them a writing requesting the hoard of supervisors to allow and pay them $100, as compensation for such service. The board refused to make the allowance, and plaintiffs sued the county. On the trial of the case in the circuit court, judgment was rendered in favor of the county. The case was removed to the Appellate Court for the Second District. The judgment of the circuit court was affirmed, and the ease is brought to this court, and a reversal is urged.

The only question presented by this record is, whether the county is liable for compensation to attorneys appointed by the court to defend persons indicted for crime, and who are unable to employ counsel for their defence. Under the ancient common law, persons accused of treason or felony were not permitted to defend, under the plea of not guilty, by counsel. The practice was, not to permit counsel to be heard on questions of fact, but the court would assign counsel to discuss questions of law arising on or after the trial. In such cases the prisoner proposed the point, and if the court supposed it would bear discussion, it assigned him counsel to argue it. (2 Hawkins’ Pleas of the Crown, chap. 39, sec. 4, p. 555 ; 1 Chitty on Crim. Law, 407.) Thus it appears that at the common law the court exercised the power of assigning counsel to argue legal questions, and it seems counsel could only appear for that purpose after being assigned by the court. The Bill of Bights (or article 8, section 9,) of the constitution of 1818, provided, “that in all criminal prosecutions the accused hath a right to be heard by himself and counsel, ” and the constitution of the United States contains a similar provision regulating the practice in the Federal courts. This constitutional provision is retained in the present organic law, and modified the rigor of the common law by extending the privilege of the accused to be heard by counsel on both the facts and the law; but it still left the common law in force as to the power of the court to assign counsel, and is the present chapter 28 of the Revised Statutes of 1874, which has been in force since September 17, 1807. This State was then a part of Indiana Territory, the legislature of which adopted the provisions of chapter 28, adopting the common law in substantially the same language of the present law. In 1809 the Governor and judges of the Illinois Territory adopted the laws of Indiana, so far as they were not local to that territory. That law appears in Pope’s Revision of 1815. The State legislature, in 1819, reenacted the law as it now stands, and it has so remained ever since.

Thus it is seen, under the common law, and the 9th section of article 8 of the constitution'of 1818, the courts had the power, and it was their duty, to assign counsel to defend persons charged with crime, who were unable to employ counsel, and such has ever been the practice in this State. Nor has the power ever been questioned. Our criminal codes, from the earliest period of legislative history, have provided that trials for criminal offences shall be according to the course of the common law, except as otherwise provided. It then follows, that it was by express enactment that the common law should be in force as to this power, and was as binding as is the 422d section of the act of 1874, Rev. Stat. page 410. That section conferred no new power, nor did it impose any additional duty. It but formulated the common law then in force. It left the law in all respects as it was previously under the common law.

Under the common law, this court, in the case of Vise v. Hamilton County, 19 Ill. 78, held that when an attorney was thus assigned to defend a pauper prisoner, there was no law which rendered the county liable to compensate the attorney for his services. It was there said the county was not a party to the prosecution, and had no power to control the matter, nor did the county employ the attorney to perform the services ; that the prosecution was carried on “in the name and by the authority of the People of the State of Illinois, ” and with it the county had no concern or power of interference, and was under no obligation to furnish counsel for the accused. It was further said: “The law confers on licensed attorneys rights and privileges, and with them imposes duties and obligations, which must be reciprocally enjoyed and performed. The plaintiffs but performed an official duty, for which no compensation is provided. Edgar County v. Mayo, 3 Gilm. 82.” That case is conclusive of this.

It, however, seems to be supposed that because the legislature has declared, in terms, the duty previously imposed by the common law, there is a change of legislative intention, and that we must infer it was intended to render the county liable. We are wholly unable to see such a purpose. Substantially there was no change in the law. Counties are only liable for the expense of apprehending, keeping and prosecuting persons accused of crime, by force of statute, or the common law as adopted by the statute. There is no statute or rule of the common law that imposes the duty of paying attorney’s fees for defending paupers from criminal accusations, and the courts have no power to enact laws authorizing counties to levy taxes for such purposes. The taxing power is a legislative, and not a judicial, function, and it would be a palpable violation of the constitution for the courts to usurp the power. The courts, no doubt, have the power, in proper eases, to compel counties to exercise the taxing power, where it has been conferred on them by the legislature; but they are destitute of power to compel them to levy and collect a tax not authorized by the statute. Plaintiffs in error are presumed to have known, when they applied for a license, that the office was burtliened with this duty, and they must be held to have accepted the place subject to the burthen. The legislature had the power, in conferring such privileges, to impose duties and obligations such as it might choose. Plaintiffs in error voluntarily accepted the privileges with this obligation, and they must be held to its performance. This being so, there is no pretense that the law deprives them of their property or labor without compensation. They received a compensation in the privileges conferred by their licenses.

This doctrine is announbed in the cases of Wayne County v. Waller, 90 Pa. St. 99, and Rowe v. Yuba County, 17 Cal. 61. We are aware that in Iowa, Indiana and Wisconsin the courts have reached a different conclusion; but we are not disposed to overrule our former decision. To do so would not produce harmony in the decisions. Moreover, we are satisfied that we have announced the true rule in Vise v. Hamilton County, supra. If a correction is required it is at the hands of the legislature, and when that body sees proper it will afford the remedy.

Perceiving no error in the record, the judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    George L. Thatcher v. Julia Olmstead et al.

      Filed at Ottawa May 19, 1884.

    1. Evidence in ejectment-—cross-examination as to source of title wnder which the respective parties claim. Where the plaintiff in ejectment files an affidavit that he claims title through a common source with the defendant, and the defendant, or his agent or attorney, denies under oath that he claims title through such source, or states that he claims title through some other source, the latter will not be subject to a cross-examination as to his source of title. Such statement under oath, under section 25 of the Ejectment act, is in the nature of an affidavit.
    2. Secondary evidence—proof of abstract of title. Where original evidence, such as a deed or other instrument, is lost or destroyed, secondary evidence may be introduced to prove its contents. But an abstract of title of real estate can not be regarded as original evidence. It is but secondary evidence itself, and therefore its contents can not be proven by other evidence in case of loss or destruction.

      Appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Mr. Consider H. Willett, for the appellant.
    Messrs. Boutell, Waterman & Boutell, for the appellees.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action of ejectment, brought by appellant, to recover the south half of a certain lot in Chicago.

But two questions arise upon the record: First, did the court err in denying plaintiff the right to cross-examine defendants’ agent, who stated on oath that defendants did not obtain title through a common source; and second, were the contents of an abstract of title competent evidence.

The plaintiff filed an affidavit that he claimed title through a common source with the defendants, to obviate the necessity of, showing a regular chain of title from the government to himself. The defendants’ agent, however, denied on oath that defendants obtained title through a common source with the plaintiff. When counsel for the plaintiff undertook to cross-examine the agent of defendants upon the question of source of title, upon objection the court ruled that plaintiff’s counsel had no right to cross-examine.

Section 25 (Rev. Stat. 1874, page 445,) provides: “If the plaintiff, or his agent or attorney, will state on oath, upon the trial, that he claims title through a common source with the defendant, it shall be sufficient for him to show title from such common source, unless the defendant, or his agent or attorney, will deny on oath that he claims title through such source, or will swear that he claims title through some other source. ” From the reading of the statute it. does not seem to have been contemplated by its enactment that either plaintiff or defendant should be subject to a cross-examination. Nor are we able to perceive that any good could be accomplished if a cross-examination was allowed. We think the common practice, where a plaintiff desired to avail of the statute, has been to file an affidavit that he claims title through a common source, and this of necessity would cut off all cross-examination, as there can be no cross-examination where an affidavit is filed. And if the practice would deny a cross-examination where an affidavit is filed, why should it be allowed when the party appears before the court and states the same facts on oath? We do not understand that the statute contemplates that an issue should be formed, and evidence introduced pro and con, whether the parties claim through a common source. Such was not the object of the statute. But on the other hand, where the plaintiff, on the trial, will state on oath that the parties claim title through a common source, the necessity for tracing title from the government to himself is obviated, unless the defendant, or his agent, will deny on oath that he claims title through such common source. A simple denial on oath is all that is required to prevent plaintiff from availing of the statute. If it was in issue for trial whether the parties claim through a common source, of course every witness who might testify would be subject to cross-examination. Yet such is not the case. An oath of this character is not evidence. Under the statute, a statement on oath, by either party, is in the nature of an affidavit for a continuance, where no cross-examination is ever allowed. Hartshorn v. Dawson, 79 Ill. 109, has been cited as in authority, but the question was neither raised nor decided in that case, and hence the decision can have no bearing whatever. We think the decision of the circuit court on the point was correct.

We now come to the second question. The rule is well settled that where original evidence, such as a deed or other document, is lost or destroyed, secondary evidence may be introduced. But we do not regard an abstract of title as original evidence. Section 29, of chapter 116, of the Revised Statutes of 1874, provides that an abstract of title, made in the ordinary course of business, when the originals of any deeds or other instrument in writing, or records of any court relating to any lands, are lost or destroyed, or not within the power of the party to produce the same, and that the records thereof are destroyed, by fire or otherwise, may be used in evidence. The deed or record is the original evidence, under this statute, and when they are lost or destroyed, and the record thereof also destroyed, then resort may be had to an abstract, made in due course of business, before such records were destroyed, which is nothing but secondary evidence. If we are correct in this, then what appellant proposed was to introduce secondary evidence of secondary evidence, and we are aware of no' rule of evidence under which such testimony was admissible. As well might a party undertake to prove the contents of a certified copy of a deed, which never could be done. We are aware of no authority which would sanction the admission of the offered evidence.

The judgment of the circuit court will be affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    John Buckrice v. The People of the State of Illinois.

      Filed at Ottawa May 19, 1884.

    1. Jury service confined to the county. There is no authority in any statute for the selection of grand and petit jurors in one county to serve in another county.
    2. Criminal law—as to right of trial by jury—and, in what county a person charged with crime must be tried. The right of trial by jury, guaranteed by the constitution to one accused of crime, includes the right of being tried by jurors selected from the county in which the oifence is alleged to have been committed.

      3. Section 5, division 10, of the Criminal Code, in so far as it authorizes a party to be tried for an offence committed entirely within one county, but one hundred rods from the county line, in the adjoining county, is unconstitutional and void.
    4. There is a class of offences that may he committed by a party being in one county, upon a person or thing being at the same time in another county, when the offence may not inaptly be defined as having been committed in either county; and offences committed on the county line, or so near thereto as that the distance therefrom is inappreciable, may with propriety be regarded as having been committed in either county, and by doing so no one is deprived of any constitutional right.
    5. But where the entire offence is committed within one county, and at an appreciable distance from the county line, as in this case, at a distance of seventy rods, the party accused can not be indicted and tried in another county for that offence.
    Appeal from the Circuit Court of Kane county; the Hon. C. W. Upton, Judge, presiding.
    Messrs. Rubens, McGaffey & Ames, for the appellant:
    A citizen of this State can be tried for a criminal offence only in the county or district where the offence has been committed. Const. of 1870, art. 2, secs. 5, 9.
    The statute providing that “where an offence shall be committed within one hundred rods of a county line, it may be so alleged, and the trial may be in either county, ” (see. 396 of the Criminal Code,) is in direct contravention of the constitutional guarantees relating to trials by jury, and therefore void. Armstrong v. State, 1 Coldw. 338; Swarth v. Kimball, 43 Mich. 443; State v. Sawyer, 56 N. H. 175; Wheeler v. State, 24 Wis. 52; Osborn v. State, 24 Ark. 629.
    The word “district, ” in article 2, section 9, of the constitution, does not include a belt of one hundred rods in another county from which no jurors are drawn. Weyrich v. The People, 89 Ill. 90.
    The first constitutional provision which we invoke against the operation of this statute is section 5, of article 1, of the constitution of 1870 : .“The right of trial by jury, as heretofore enjoyed, shall remain inviolate.” The meaning of this constitutional provision has been held to be that the common law mode of trial by jury must remain inviolate. (Petition of Ferrier, 103 Ill. 367; Ward v. Farwell, 97 id. 593.) And it was held that the mode of trial, as it existed at the time of the adoption of the constitution, was preserved by this provision. Ross v. Irving, 14 Ill. 171.
    There can be no question that at common law no man could be taken out of the county where the offence was committed, and where he resided, to an adjoining or distant county. (4 Blackstone’s Com. 349.) And this right of trial by jury includes the grand as well as the petit jury, and both must be drawn from the county where the offence was committed. 4 Blackstone’s Com. 303; Hallam’s Const. Hist. 15, 16; Bacon’s Abr. title “Juries;” 2 Hawkins’ Pleas of the Crown, 300, chap. 25, sec. 28.
    The courts of other States have held acts of the legislature authorizing the trial of persons out of the county in which the offence was committed, as unwarranted by the constitution, and void. Swarth v. Kimball, 43 Mich. 443; Paul v. Detroit, 32 id. 108; Weyrich v. The People, 89 Ill. 90; Armstrong v. State, 1 Coldw. 338; Osborn v. State, 24 Ark. 629; Wheeler v. State, 24 Wis. 52; State v. Sawyer, 56 N. H. 175; State v. Denton, 6 Coldw. 539; Kirk v. State, 1 id. 345.
    The framers of our constitution did not content themselves, however, with the provision above quoted. They gave a still more definite expression of their determination to uphold this constitutional guaranty by declaring: “In all criminal prosecutions the accjused shall have the right * * * to a speedy public trial, by an impartial jury of the county or district in which the offence is alleged to have been committed.” Const. 1870, art. 2, sec. 9.

      Mr. Frank Crosby, and Mr. Terrence E. Ryan, State’s Attorney, for the People:
    The statute attacked is no novel experiment in legislation. It has existed among the legislative enactments of sister States for many years, and has frequently been confirmed by their judicial tribunals. Commonwealth v. Gillon, 2 Allen, 502; The People v. Harris, 45 Barb. 494; State v. Robinson, 14 Minn. 447; The People v. Davis, 56 N. Y. 95.
    “The right of trial by jury” may, be regulated by the legislature in certain ways, provided its fundamental requisites are not impaired or destroyed,—that is, provided the number composing the jury, its unanimity and its impartiality are not violated. Proffatt’s Trial by Jury, sec. 106, p. 149.
   Mr. Justice Scholfield

delivered the opinion of the Court:

Appellant sold spirituous liquors in violation of chapter 43, entitled “Dram-shops, ” in Cook county, but at a point within seventy rods of the line between that county and Kane county. For this he was indicted by a grand jury of Kane county, and tried and convicted in the circuit court of that county. He objected, on the trial, to the jurisdiction-of that court, and by plea and motion raised the question of its power to render any judgment against him for the offence so committed. The action of the court is claimed to be authorized by section 5, .division 10, of chapter 38, entitled “Criminal Code,” of the Revised Statutes of 1874, page 406, which reads as follows: “Where an offence shall be committed on a county line, or within one hundred rods of the same, it may be so alleged, and the trial may be in either county divided by such line. ” Undoubtedly, if valid, this is broad enough to embrace the present case; but counsel for appellant insist that so much of it as assumes to authorize the trial of a party in one county for an offence committed in another county, (no right in that regard having been waived,) is unconstitutional and void, and this presents the only question for our determination.

It will be observed no county lines are changed by this enactment, and no provision is made for the selection of jurors beyond the county line, and within the one hundred rods thereof, and, we may add, there is no authority in any statute for the selection of grand and petit jurors in one county to serve in another county. See Rev. Stat. 1874, chap. 78, entitled “Jurors, ” p. 630.

The constitution of 1870 declares, in section 5, article 1: “The right of trial by jury, as heretofore enjoyed, shall remain inviolate. ” And in section 9, article 2: “In all criminal prosecutions the accused shall have the right. * * to a speedy public trial, by an impartial jury of the county or district in which the offence is alleged to have been committed.” Substantially the same provisions were in the constitutions of 1818 and 1848, and they have been held to guaranty the right of trial by jury, in conformity with the principles of the common law as it was enjoyed at the adoption of the constitution. (Ross v. Irving, 14 Ill. 171; Ward v. Farwell, 97 id. 593; Petition of Ferrier, 103 id. 367.) And this right of trial by jury included that of being tried by jurors selected from the county in which the offence is alleged to have been committed. (Weyrich v. The People, 89 Ill. 90.) It was the settled common law doctrine that jurors in one county were not competent to pass upon the guilt or innocence of a party in regard to a crime alleged to have been committed by him in another county. See 3 Reeves’ Hist. of English Law, 135; 2 Hale’s Pleas of the Crown, 264; 2 Hawkins’ Pleas of the Crown, 403; 4 Blackstone’s Com. (Sharswood’s ed.) 349, *350; 1 Wharton on Crim. Law, (7th ed.) 277.

There is a class of offences committed by a party being in in one county, upon a person or thing being at the same time in another county, where the offence may not inaptly be defined as being committed in either county, and we are not to be understood as questioning but that offences committed on the county line, or so near thereto that the distance therefrom is inappreciable, may with propriety be regarded as committed in either county, and that by so holding no one is deprived of any constitutional right; but it is obvious such cases are not analogous to the present case. Here the entire offence is committed within one county, at a distance of seventy rods from the county line. It is not only possible, but probable, that many persons reside within one hundred rods' of the county line who are competent jurors in their own county, but none of whom, in any possible contingency, would be competent to sit as such upon the trial in Kane county. And so, if it could be said this is a new district for criminal purposes, it is unconstitutional, in that there is no provision authorizing it, but on the contrary, there is a positive provision excluding the selection of juries in so much of the territory as is included in this strip of one hundred rods in Cook county. But if it may be said the districts simply remain as they were, then it would seem too plain to admit of argument, the constitution is violated by authorizing parties committing offences wholly in one county to be indicted and tried therefor in another county. If this may be done as to one hundred rods of territory, why may it not be done as to one mile ? And if it may be done as to one mile, why may it not be done as to the entire county, and thus drag men for trial to Cook or Jo Daviess county for offences committed in Alexander or Pulaski county ?

It may be that it would work no inconvenience, and be greatly promotive of a rigid enforcement of the Criminal Code, if a strip of two hundred rods in width on all county lines, (one hundred rods on each side,) might be, for the purpose of criminal trials, regarded as within either county; but it is enough for the present to say this is not warranted by the constitution, and its mandate is, that “in all criminal prosecutions the accused shall have the right to a speedy public trial, by an impartial jury of the county or district in which the offence is alleged to have been committed. ” We have no more right to disregard this mandate as to one hundred rods than as to that many miles, and our opinion of its wisdom or convenience can not in the slightest affect the question of its obligatory force. Like questions were presented and like conclusions reached in Swarth v. Kimball, 43 Mich. 443; Armstrong v. State, 1 Coldw. 338; Kirk v. State, id. 345; State v. Denton, 6 id. 539; Wheeler v. State, 24 Wis. 52; Osborn v. State, 24 Ark. 629; State v. Love, 21 W. Va. 783, (45 Am. R. 570.)

The constitutions of Massachusetts and New York do not contain like provisions to those in our constitution which we have been considering, and hence the cases cited by counsel for the People from those States are not relevant. As to the decision cited from Minnesota, we are unable to concur in the reasoning by which it is sustained, notwithstanding the high respect we entertain for the ability and learning of those composing the tribunal by which it was announced.

The judgment is reversed.

Judgment reversed.