author: Mr. Justice Craig

text:
    Samuel H. Morrill et al. v. Mary Kilner.

      Filed at Springfield

      March 30, 1885.

    1. Fraudulent conveyance—generally. A debtor in failing circumstances is only allowed to transfer his'property by making a general assignment of it for the benefit of creditors.
    2. Same—voluntary. conveyance by an insolvent debtoi—subsequent creditors. A convej'ance of real estate without consideration, or for a mere nominal one, by a party who is at the time largely indebted and insolvent, will be regarded as fraudulent and void, even as against subsequent creditors.
    8. Same—of a conveyance made in anticipation of insolvency. A person, about a week after contracting for a loan of money, conveyed certain lots owned by him to .his mother, without consideration, and received the money upon the loan the next day after the execution and delivery of. his deed, and the deed was not recorded until eleven months after its execution, and only a day or two before the grantor made a general assignment. It was held, that from these facts it could be fairly inferred that the convej’ance to the mother was made in anticipation of the grantor becoming indebted, and that the same was fraudulent as to the party loaning him the money.
    Writ of Error to the Circuit Court of Moultrie county; the Hon. C. B. Smith, Judge, presiding.
    Mr. Anthony Thornton, for the plaintiffs in error:
    The ordinary consideration of five dollars, or even ten dollars, when the property is worth a great deal more, is merely nominal, and a deed upon such consideration is deemed voluntary. Ward v. Trotter, 3 Mon. 1; McKinley v. Combs, id. 105; Cains v. Jones, 5 Greg. 250.
    The facts indicate that the mother of the grantor was a mere trustee, and that the conveyance was made for the benefit of the grantor. This makes the deed void both as to then existing and subsequent creditors. Jones v. King, 86 Ill. 229.

      The concealment of the transfer for nearly two years is a badge of fraud. Hungerford v. Earle, 2 Vern. 261; Hildreth v. Sands, 2 Johns. Ch. 48; Salmon v. Burnett, 8 Wheat. 229.
    A deed made in anticipation of becoming indebted, for the purpose of defrauding creditors, and without consideration, is void against subsequent creditors. Moriarty v. Hoffman, 35 Ill. 558.
    That the conveyance was made with the view of becoming indebted; may be inferred from the fact that the money was borrowed on the next day. Ridgeway v. Underwood, 4 Washb. C. C. 137; Am. Leading Cases, 71.
    Mr. D. T. McIntyre,
    for the defendant in error, contended, from the evidence, that Walter Kilner, in purchasing the lots, acted merely as the agent of his aged parents, and that as the grantor was not the owner, he was not selling to his mother, and no consideration was necessary.
    The conveyance beipg such as a court of equity would have compelled, can not be held fraudulent.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill brought by Mary Kilner to enjoin Samuel H. Morrill, one of the plaintiffs in error, from selling certain lots on a judgment in his favor against Walter B. Kilner and one Corbin, upon the ground that the property belonged to her, and that Walter B. Kilner had no title or interest whatever in the property. Morrill put in an answer to the bill, and also filed a cross-bill, in which he set up that Walter B. Kilner was the owner of the property, and that the conveyance which he had made to the complainant, his mother, was without consideration, and made with intent to defraud his creditors. On the hearing on the pleadings and evidence, the court rendered a decree in favor of the complainant, as prayed for in the bill, to reverse which Morrill and Corbin sued out this writ of error.

The property involved consists of four lots in the town of Sullivan, Moultrie county. Two of the lots were purchased on the 26th day of January, 1870, and deeded to Walter B. Kilner. The other two were bought on the 13th of January, 1871, and conveyed to the same party. The legal title to the lots remained ’in Walter B. Kilner until the 21st day of January, 1874, when, by deed of that date, he conveyed them to his mother, Mary Kilner. At the time this conveyance was made, Walter B. Kilner was indebted to different persons from $2500 to $3000, and remained so indebted until the last of December, 1875, when he made an assignment.

It is claimed by the complainant in the bill, that the property was purchased originally for her, and the purchase money was paid by her husband, George Kilner. There is some evidence in the record tending to sustain this view. Walter B. Kilner testified that the property was bought for the complainant, and his father, George Kilner, paid the purchase 'money. But the decided weight of the evidence seems to indicate that Walter B. Kilner made the purchase on his own account. When the purchase was made the deeds were taken to him. Mr. Smyser sold the property to Kilner. From his evidence it appears that he had sold lots 1 and 2 to one Ambrose, for $391.88. He being unable to pay the purchase money, gave up the lots to Smyser, and Walter B. Kilner then assumed the payment of the purchase money Ambrose had agreed to pay, and took the lots. The other two lots, 3 and 4, were sold to Kilner for $200, for which he gave his note, with interest at ten per cent. Kilner wras at the time in the drug business, and according to Smyser’s evidence, which was not contradicted, at least three-fourths of the $591.88 agreed to be paid for the property was paid by Walter B. Kilner out of his store. The remaining fourth Walter B. Kilner paid by turning out a bill for medical services, which George Kilner held against Smyser. From this evidence it not only appears that Walter B. Kilner bought the property in his own name, but he also used his own means in paying for the property. How he settled with his father for the medical bill he turned out to Smyser as a part payment on the property, does not appear, nor is that fact material. He procured the account from his father, and used it as his own property in making the payment. It therefore seems plain, from the evidence, that Walter B. Kilner. bought and paid for the property. After the purchase, it seems, from the evidence, that the property was known and recognized as belonging to Walter B. Kilner. He paid all the taxes on the property in his own name, except for one year. After purchasing the property, he made improvements thereon, amounting to some $600. These improvements were in the main paid for by him out of his own money. From these facts, and from other evidence in the record, the only reasonable conclusion to be reached is, that Walter B. Kilner purchased and owned the property.

The only remaining inquiry is, whether the conveyance to Mary Kilner, his mother, was without consideration, and made with intent to defraud creditors. As to the consideration, it is not claimed that any sum whatever was paid by the grantee, or by any person for her, for or on account of the conveyance. If, however, Walter B. Kilner had been free from all indebtedness, and saw proper to convey the property to his mother for a nominal consideration, or as a gift, the conveyance might be sustained; but such was not the case. At the time of the execution of the deed he was insolvent. Where a deed is made without consideration, or for a mere nominal consideration, and the grantor is at the time largely indebted, the transaction will be regarded as fraudulent, and may be impeached by creditors. A debtor in failing circumstances is only allowed to transfer his property by making a general assignment of it for the benefit of creditors. (Phelps v. Curts, 80 Ill. 109.) In this case the conveyance was made without consideration, when the grantor was largely indebted, and we are aware of no rule under which it can be sustained.

It may be said that the debt of plaintiffs in error was not in existence at the time the deed was executed, and for this reason they have no right to impeach the transaction. In Moritz v. Hoffman, 35 Ill. 553, it was held that a settlement upon a wife by a voluntary conveyance without consideration, the grantor being at the time solvent, can not be attacked by a subsequent creditor, and is only void against creditors existing at the time of the conveyance. But in the same case it was also held if such conveyance was made in anticipation of becoming indebted, and for the purpose of defrauding creditors, and was made without consideration, it matters not whether the grantor was insolvent or not, the conveyance would be void against such subsequent creditors. Here, the debt of plaintiffs in error was created the next day after the deed was executed. Kilner had contracted for the money the loan of which created the debt, about one week before the deed was made, but he did not actually receive the money until the day after the deed was made. We think it may be fairly inferred, from the circumstances attending the execution of the deed and the making of the debt, that the conveyance was made in anticipation of becoming indebted. Indeed, the deed conveying the property was not placed on record for over eleven months after it was executed, and only a day or two before the grantor made an assignment, the effort, to all appearances, having been made to cover up the property, and at the same time keep the fact from the knowledge of creditors.

T-he decree of the circuit court will be reversed, and the cause remanded.

Decree reversed.


source: Caselaw Access Project

author: Mr. Chief Justice Scholfield

license: Public Domain

text:
    The Illinois Central Railroad Company v. John Hodges et al.

      Filed at Springfield

      March 30, 1885

    1. Taxation—of the remedy by injunction for improper assessment. A court of equity will not enjoin the collection of a tax unless the tax itself is unauthorized by law, or is levied upon property not subject to taxation, or the property upon which it is assessed is fraudulently valued at too high a rate; but in those cases the collection of the tax will be enjoined.
    2. So a person owning real estate which is exempt from taxation is not required to take notice of its illegal assessment, nor to appear before the local tribunals to protect his property from taxation; and when it is illegally assessed he may resort to a court of equtiy for an injunction.
    3. Same—cumulative remedy by statute, when exempt property assessed. Section 97 of the Revenue law empowers the board of supervisors in counties under township organization, to hear and determine the application of any person who is assessed on property exempt from taxation, and the question may be taken thence by appeal to the Auditor, and be by him brought before the Supreme Court for final review. This remedy, however, is merely cumulative to that in equity to enjoin.
    4. Same—former decision. It was said in Preston et al. v. Johnson, 104 Ill. 625, in speaking of the jurisdiction of the county board to give relief as to property exempt from taxation, “the remedy through the county board of review and by appeal we regard as adequate and exclusive.” . While this was true in that particular case, it is not universally true, and is therefore calculated to mislead. The statutory remedy becomes exclusive only when it is selected and a decisibn under it invoked.
    5. Same—remedy in case of over-valuation. Where the complaint is that the local assessor has over-valued property, the owner must resort to the tribunals provided by the statute for review in such cases. A court of equity is not empowered to value property for taxation.
    Appeal from the Circuit Court of Alexander county;' the Hon. David J. Baker, Judge, presiding.
    Messrs. Green & Gilbert, for the appellant:
    The jurisdiction of a court of equity to interfere by injunction, extends to all cases where a tax is assessed upon property not subject to taxation, and in like cases. Railroad Co.
      v. Code, 75 Ill. 591; Town of Lebanon v. Railroad Co. 77 id. 539; Gage v. Evans, 90 id. 569; Wilson v. Weber, 96 id. 454; Lemont v. Stone Co. 98 id. 94.
    As to cases where the collection of a tax may be enjoined, see Vogt v. Ayer, 104 Ill. 383; Johnson v. Lyon, 106 id. 64; Moore v. Wayman, 107 id. 192; Railroad Co. v. Johnson, 108 id. 11; Sivwright v. Pierce, id. 133; Halstead v. Adams, id. 609.

    The case of Preston v. Johnson, 104 Ill. 625, does not decide that there is no remedy in equity.
    Appellant was not bound to avail of the remedy at law afforded by section 97 of the Revenue act. It had a right to rely on its contract with the State that its property should be exempt from taxation.
    Mr. John M. Lansden, for the appellees:
    Even conceding appellant’s elevator was exempt from taxation, there was a complete remedy at law under section 97 of the Revenue law. The question has been settled by this court. Preston v. Johnson, 104 Ill. 625; Felsenthal v. Johnson, id. 21.
    Appellant failed to appear before the county board at its session in July, 1881, and failed also to make any objection to the rendition of judgment against its property in May, 1882. Adsit v. Lieb, 76 Ill. 198; People v. Big Muddy Iron Co. 89 id. 116.
   Mr. Chief Justice Scholfield

delivered the opinion of the Court:

This is a bill in equity, to enjoin the collection of a tax assessed against a certain lot or tract of land occupied by a large grain elevator, in the city of Cairo.

The case made shows that the property is exempt from taxation under the provision's of appellant’s charter, but the court below dismissed the bill upon the ground that appellant’s remedy is at law,—and this, as. is asserted, upon the authority of Felsenthal et al. v. Johnson, 104 Ill. 21, and Preston et al. v. Johnson, id. 625. This was error. The effect of the decisions in the cases cited was misapprehended. We have held that a court of equity will not enjoin the collection of a tax unless the tax itself is unauthorized by law, or the tax is assessed upon property not subject to taxation, or the property upon which it is assessed is fraudulently valued at too high a rate; but in those cases the collection of the tax will be enjoined. Where the complaint is made that the local assessor has over-valued property, the owner must resort to the tribunals provided by the statute for review in such cases. A court of equity is not empowered to value property for taxation, but those boards afford ample remedy for all errors in valuation, and they must be resorted to for relief when complaint is made in that regard. Felsenthal et al. v. Johnson, supra, and Adsit v. Lieb et al. 76 Ill. 198, are illustrations.

Where an individual has property subject to taxation, he is chargeable with knowledge that it will be assessed for that purpose, and he must ascertain whether the valuation is satisfactory, and if it shall not be, apply to the statutory tribunals for relief. But where an individual has property that is exempt from taxation, he has a right to assume that the law will be observed, and he is not, therefore, required to take notice.of its illegal assessment and valuation, nor to appear before the local tribunals in that regard. He is required to do no affirmative act to insure that his property shall be protected under the law exempting it; and when it is illegally assessed, as we have said, he may resort to a court of equity for an injunction. True, the 97th section of the Revenue law empowers the board of supervisors in counties under township organization, to hear and determine the application of any person who is assessed on property exempt from taxation, and the question may be taken thence by appeal to the Auditor, and be by him brought before this court for final review. When-any person shall be informed that property owned by him, and exempt from taxation, has been illegally assessed, he may apply to the board of supervisors for relief under this section; and if he shall do so, he can not then, after an adverse decision, go into chancery for relief,—and that was the case in Preston et al. v. Johnson, supra. Having selected his forum,— one which . affords a completely adequate remedy,—he must adhere to it. But in the case of real estate, especially, having a right to rely upon the law exempting him without doing any affirmative act, and not being constructively charged with knowledge of an illegal assessment, he may not, in fact, know that his property is illegally assessed until it is too late to apply to the board of supervisors for relief; and so it must follow, that in this class of cases the remedy provided by that section is cumulative, only,— and so we expressly decided in Peoria Fair Association v. The People ex rel. 111 Ill. 559. If the party elect the remedy provided by this section, he will not be allowed to abandon it and then go into equity, but he may go into equity in the first instance, and haye relief. The concluding sentence in the opinion in Preston et al. v. Johnson, which reads, “The remedy through the county board of review and by appeal we regard as adequate and exclusive, ” although true in that ease, is not universally true, and is therefore calculated to mislead. The remedy is adequate, and when that forum is selected and its decision invoked, it becomes exclusive. In "cases like the present, before a tribunal has been selected, it must be regarded as only affording a cumulative remedy.

The decree is reversed, and the cause remanded for further proceedings consistent with this opinion.

Decree reversed.


author: Mr. Justice Dickey

text:
    Sarah L. Bradley v. Leo H. Rees et al.

      Filed at Mt. Vernon

      March 26, 1885.

    1. Description—of land—in a will—whether sufficiently certain. A devise in a will of “the south-west quarter of the north half of section 14, town 8, range 2, west, ” is not void for uncertainty in the description. It is the same as the south half of the west half of the north half of the section; and if the section is a mile square, the description embraces eighty acres off the south side of the north-west quarter of the section.
    2. Will—of a devise purporting to pass more than the testator owns— extent of devisee’s rights. The fact that a testator did not own all of a tract of land devised by him by a good description, will not justify the court in holding the devise void. The devisee, in such case, will take so much of the land described as the testator did own.
    3. Same—description of devisees—“the four boys," when there were seven sons. ' At the time of making his will a testator had seven sons, four of whom were minors, living with him, the other three being men, married, and having families of their own; and his will, after devising a certain part of his land to his infant daughter, contained this clause: “The remaining lands owned by me to be divided between the four boys, ” without any other designation: Meld, that the words, “the four boys,” meant the four minor sons, who were at the time living with the testator as a part of his family.
    4. Parol evidence—to explain a latent ambiguity in a will—and whether an ambiguity is latent or patent. Where a testator devised to his daughter the south-west quarter of the north half of section 14, town 8, range 2, "west, the remaining lands owned by me to be divided between the four boys, ” it was held, that there was no ambiguity on the face of the will, the inference therefrom being that he had but four sons; but on proof that the testator had seven sons, an ambiguity was made apparent, and, being a latent one, was explainable by parol evidence.
    5. So where a testator, after a specific devise of land to his daughter, added, immediately after, these words: “The remaining lands owned by me to be equally divided between the four boys, ” and the proof showed that he had at the time seven sons, four of whom were minors, residing with him, and the other three being men, and living in their own homes, apart from the father, it was held, that parol proof not only of the previous facts known to the testator, and of present circumstances, under which he made his will, but also his declarations made at the time of making the will, as well as before and after, might be resorted to, to remove the ambiguity, if any, and to fix the objects of his bounty.

      6. Same—to change a devise—mistake as to quantity of land. Where a will devises land which, by the words used, embraces eighty acres in a larger tract, proof by parol that the testator directed the scrivener to draw the will so as to give only forty acres, is inadmissible. A mistake in drafting a will by the draftsman can not be shown and corrected upon parol evidence in such a case.

    Writ of Error to the Circuit Court of Jackson county; the Hon. Daniel M. Browning, Judge, presiding.
    Reuben R. Rees died testate, in Jackson county, Illinois, on December 7, 1880. At his death he left him surviving a widow, Sarah L. Rees, who was named in his will as executrix, and who has since married, and is now named Sarah L. Bradley. The testator, at his death, left him surviving twelve children. Six of them were by a former wife,—that is to say, Mrs. Mary E. Striger, Leo H. Rees, Mrs. Ellen Kilmer, and Ephraim L. Rees, who are the complainants in the original bill in this suit, and Mrs. Paralee C. Beasley and Mrs. Harriet B. Boucher, who are named as defendants in that bill. The remaining six children were born of a second marriage, and were the children of the widow, Sarah L. The testator also left him surviving five grand-children, being children of a married daughter by his first wife, and who died in the lifetime of the testator. These twelve surviving children, and the five grand-children mentioned, constituted the only heirs at law of the testator. All the six surviving children by the first wife, and the eldest son by the second wife, had passed from minority, and were married, before the death of the testator. They had all left the parental roof, and each had a family of his or her own. The remaining five children were minors, and lived at the testator’s home, and, with their mother, constituted his family or household at the time of his death. Four of these minors were sons. The youngest of these sons was two years old, and the eldest was about eighteen years of age. The minor daughter was named Dora, and was about seven years.of age.
    At his death Reuben R. Rees left a will, made on November 26, 1880, and duly attested. On December 21, 1880, this will was duly proved before the county court of Jackson county, and, by order of that court, was on that day duly admitted to probate as the last will and testament of Reuben R. Rees, deceased, and letters testamentary were duly issued to said Sarah L. Rees, as executrix, and she at once gave bond and qualified as such, and entered upon her duties. The will thus probated was in the words following:
    “In the name of God, amen. On this the (26th) twenty-sixth day of November, A. D. 1880, I, Beuben B. Rees, being of sound mind and memory, but mindful of decaying nature, do therefore publish this my last will and testament, in the words and figures following, to-wit:
    “First—My will is, that my funeral expenses and all my just debts be fully paid.
    “Second—I give and bequeath to my much beloved wife, Sarah L. Rees, all my personal estate, of whatsoever kind and nature, except the articles hereinafter mentioned.
    “Third—I give and bequeath to my son Albert B. Rees, one chestnut-sorrel horse, and also one span of black mules, to be sold, and the money applied to his education.
    “Fourth—I give and bequeath to my son James E. Rees, one three-year-old bay filley.
    “Fifth—To my daughter Dora L. Rees I will and bequeath the south-west quarter of the north-half of section 14, town 8, range 2, west,—the remaining lands owned by me to be divided between the four boys.
    “I hereby constitute my wife, Sarah L. Rees, my executrix for me, and to execute the above will.
    “In testimony whereof, I hereunto set my hand and seal, the day and year above written.
    Reuben R. Rees. [Seal.] ”

      On February 7, 1881, this suit was begun in the circuit court of that county, by Leo H. Rees, Ephraim L. Rees, Mary E. Striger and Ellen Kilmer, as complainants, making defendants to their bill the widow, Sarah L. Rees, and all the heirs other than complainants. They charged in their bill that at the time of the making of the will the testator was not of sound and disposing mind, and that he was induced by undue influence of his wife, Sarah L., to make the will, and that the fifth clause of the will was void for imperfection in the description of the land given to Dora L. Rees, and.for uncertainty in the description of the donees of “the remaining lands” owned by the testator. The bill further set out that Sarah L. Rees, the widow of the testator, had' renounced the provisions of the will made in her behalf, and elected to take her dower and statutory allowances as widow, and that such renunciation was duly filed in the county court on January 10, 1881. The prayer of the bill was, that the will be -set aside, and that complainants should each be decreed to be entitled to one-thirteenth part of the lands belonging to the testator at the time of his death, and that each of the other children of said Reuben R. Rees, deceased, should be held entitled to one-thirteenth part of said lands, and that the five grandchildren mentioned above should be held to be entitled to one-thirteenth of these lands,—each of said grand-children to one-fifth of one-thirteenth, or one sixty-fifth, of said lands,— all subject to the dower of the widow. The prayer of the bill also sought to have the letters testamentary revoked and held for naught; and that the order admitting said will to probate be set aside; and that the county court should be directed to grant letters of administration; and that all claiming under the will be enjoined from so doing; and that complainants and defendants be decreed to be .tenants in common of all such lands; and that the widow’s dower be assigned, and the residue of the lands be divided and partitioned according to the respective rights of each of the parties.

      The defendants were all brought into court by due process, and answered, and the widow and the younger five children filed a cross-bill, asking that the will be sustained, and denying the allegations of fact on which it was sought to invalidate the same. Issues were formed under the original bill and cross-bill. These issues, by agreement, were submitted to the court for trial, a jury being waived, and upon final hearing the same were found for the original complainants, and a decree entered dismissing the cross-bill and granting the relief sought in the original bill; Defendants in the original bill bring the cause here on writ of error.
    Mr. A. D. Duff, and Mr. George W. Smith, for the plaintiff in error.
    Mr. George W. Andrews, for the defendants in error.

      As to the correction of mistakes in wills, see Worrell v. Patten, 69 Ill. 254.

   Mr. Justice Dickey

delivered the opinion of the Court:

The proofs entirely fail to sustain the allegations of a want of disposing capacity in the testator, and of undue influence in bringing about the making of the will. In fact, these positions in the bill are not pressed, here, by counsel for defendants in error. The sole questions for our consideration arise upon the fifth clause of the will. These are its words: “To my daughter Dora L. Rees I will and bequeath the south-west quarter of the north half of section 14, town 8, range 2, west,—the remaining lands owmed by me to be divided between the four boys. ” It is insisted in the bill, and in argument, that the description of the land here given to Dora L. Rees “is not such as could be located and determined by section lines and legal boundaries.” We see no foundation for or force in the objection. The south-west quarter of the north half of a given section of land is certainly very definite. It is the same as the south half of the west half of the north half of the section,—in other words, it is the south half of the north-west quarter of the section; and if the section be an exact mile square, the description embraces eighty acres of land off the south side of the north-west quarter of the section. In argument it is said this must be erroneous, because the testator was “not the pwner of all” of the south half of the north-west quarter of this section. If this be so, Dora takes only so much thereof as the testator did own. Kurtz v. Hibner, 55 Ill. 514, and Bishop v. Morgan, 82 id. 351, determine this question.

Counsel for other plaintiffs in error say that there is a mistake in this description, and insist that this error ought to have been corrected so as to give Dora only forty acres, and that so located as to embrace very little of the land here described. This claim is said to be supported by parol proof that the testator, at the making of the will, distinctly directed the scrivener to describe the forty acres named, and that by the blunder of the scrivener the description in the will does not designate the land designated by the testator in his directions to the scrivener. A will, duly signed and attested, as is required by law, can not, in a case like the present, be reformed and such mistake corrected upon parol proof contradicting or changing that which is unequivocal in the words of the will. We must, in such case, deal with it as we find it.

■ It is also insisted, and this most strenuously, that the description of the donees of “the remaining lands” is too indefinite, and, in fact, void for uncertainty. It is said it is entirely uncertain as to whom reference is had by the use of the words, “the four boys.” It is said the testator had then living seven sons, and it is therefore said there is no lawful means of ascertaining which of the seven sons was meant by the words, “the four boys.” When it is shown that at the time of making the will three of those sons were men, and that each of them was then a married man and the head of a family of his own, with whom he resided, away from the parental roof, and that the other four sons were at that time minors, living at home with their father, the testator, and constituting a part of his household, it seems exceedingly plain that by the term, “the four boys, ” used in the connection in which these words were, the testator meant his four minor sons, who were living with him as a part of his household.

It is said this is a patent ambiguity, and it is only latent ambiguities which can be explained by parol proof. We do not think so. Take the will upon its face, and the inference would naturally be that the testator had but four sons, and there is, therefore, on the face of the will, no ambiguity. It is only from proof aliunde there were seven sons, that any ambiguity is made apparent. In such case, the circumstances under which the words were used may be proven, to enable us to determine what meaning is to be given to the words, as used. In addition to the facts above referred to, it is made apparent from the instructions given by the testator to the scrivener, and from the repeated declarations of the testator, both before and after the making of the will, as well as by proof of the gifts which he had made to each of his adult children upon their marriage, that by the words, “the four boys, ” the testator meant his four sons who were then minors, and living with him as a part of his family.

The whole subject of the admissibility of parol evidence in fixing the object or the subject of a devise or bequest, and of the limitations upon the admissibility of such evidence, is fully discussed, and the authorities collected, in 1 Jarman on Wills, chapter 13, with notes and references to American decisions. We do not deem it necessary to enter, here, in detail, upon that discussion, but content ourselves with saying that the subject of the gift to Dora can not lawfully be modified by parol proof, because the description in the will is certain and definite. No equivocation (as it is called in the books) is found in the words of the will in relation to the property described. The clear provisions of the will can not be changed by parol proof. On the other hand, the proof that the testator had seven sons, (unless we limit the term “boys” to males who are minors,) creates what is called an equivocation, and the authorities show that in such ease parol proof,—not only of previous facts which were known to the testator, and of present circumstances in the midst of which he made his will, but his declarations made at the time of making the will, as well as before and after the making of the will,—may be resorted to, to remove the equivocation and fix the objects of his bounty.

The decree in this case is therefore reversed, and the cause remanded, with directions to dismiss the original bill for want of equity.

Decree reversed.


author: Mr. Justice Mulkey

text:
    Henderson E. Massey v. The Farmers’ National Bank of Virginia.

      Filed at Springfield

      March 30, 1885.

      1. Evidence—secondary evidence—generally. Where the existence of a deed or other writing is directly involved, whether as proof of the precise question in issue or of some subordinate matter that tends to establish the ultimate fact or facts upon which a case turns, such deed or other writing itself must be produced, or its absence accounted for, before secondary evidence of its contents is admissible.
    2. Same—reference by witness to deeds or other writings without producing them—as mere inducement to the material facts. A witness may, when testifying, for the purpose of making his statements intelligible and giving coherence to such of them as are clearly admissible, properly speak of the execution of deeds, the giving of receipts, the writing of a letter, and the like, without producing the writing referred to. Beferences to such writings as mere inducement to the material parts of the witness’ testimony may be allowed.
    3. So where a father was sued upon a note given to a bank by his son, the father being surety, and he denied the execution of the note under oath, the real issue being the execution of the note, his son, whose deposition was taken, was asked whether the note sued on was a renewal note, and this was objected to by the defendant unless the old note was produced. He produced the same', and read from it the credits, and testified: “Paid, July 25, 1879, $275 and interest on note to date. Paid, August 5, 1879, $1782.75 and interest on note to date. That .$1782.75 my father owed,—that is, he gave me a deed to one hundred acres of land in 1866; told me to go to work on it, and improve it, and suit myself, but had never given me a deed, and after he received notice from the bank in 1879, he goes to J. and deeds this one hundred acres of land away from me, with the exception of forty acres where the house and barn stand, and said to me and told me to give him a mortgage for $3000, and he would enable me to get a loan of $2000 on it, to pay upon this note. He did that. I had to give him a mortgage for §3000, while I never owed him a dollar in the world. He did that to fix the bank so they couldn’t get anything off of me, and he was going to put Ms property out of Ms hands, to avoid this note.” On objection, the court struck out the words in italics, and permitted the rest to be read: Held, no error in allowing the balance of the answer to be read, the reference to the deeds being mere inducement to the other testimony.
    4. Same—irrelevancy. In an action against only one of several makers of a promissory note, who denied its execution on Ms part by plea properly verified, there is no error in refusing to allow the defendant to show that the signature of another one of the makers is not in his handwriting, there being no issue as to the execution of the note by the latter.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Sangamon county; the Hon. C. S. Zane, Judge, presiding.
    Messrs. Morrison & Whitlock, for the appellant:
    As to the rule requiring the best evidence to be produced, or its loss accounted for, see Cornwell v. Cornwell, 91 Ill. 414; Driver v. Ford, 90 id. 595; Cairo v. Mahoney, 82 id. 73; Rawson v. Curtis, 19 id. 456; Dowden v. Wilson, 71 id. 487; Snapp v. Hunt, 24 id. 49; Snapp v. Pierce, id. 158; 1 Green-leaf on Evidence, 558.
    The best evidences were the deeds and mortgages. Anderson v. Irvin, 101 Ill. 595: Ball v. Benjamin, 56 id. 105; Wharton on Evidence, sec. 60.
    The rule as to relevancy of testimony offered is, whether it tends to prove the issue in the case,—not that it proves it.
      Hough v. Cook, 69 Ill. 581; Rogers v. Brent, 50 id. 587; Slack v. McLagan, 15 id. 251.
    The court improperly refused proof that Laurie never executed the note. If the principal had put the name of Laurie upon the note without authority, proof of that fact would authorize an inference that the other name was also fraudulently put there. A witness may be impeached by proving contradictory statements, when the proper foundation has been laid, as to evidence too remote to be admitted if offered as direct testimony. Root v. Wood, 34 Ill. 283.
    Messrs. Ketcham & Gridley, and Mr. L. H. Hatfield, for the appellee.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This is an appeal from a judgment of the Appellate Court for the Third District, affirming a judgment of the circuit court of Sangamon count)7, in favor of the National Bank of Virginia, and against Henderson E. Massey, for the sum of $6439.56. This same case was before us at the September term, 1882, on an appeal by the present appellant, when the former judgment was reversed and the cause remanded, on the ground the trial court permitted an improper question to be asked some of the witnesses. Since then the case has been again tried, resulting, as before, in a judgment fpr the plaintiff. The case, when here before, is reported in 104 Ill. 327, where will be found a full statement of the facts as they appear in the present record, hence it is not necessary to repeat them, except so far as may be necessary to an understanding of the questions of law now presented for determination.

The action below was upon a promissory note purporting to have been executed by Henry C. Massey, Henderson E. Massey and Geor§e W. Laurie. The suit was commenced against the three, but was subsequently dismissed as to Henry C. Massey and Laurie,—the former being the son and the latter the son-in-law of the appellant. The note was given for money borrowed from the bank by Henry C. Massey. The appellant filed a plea, verified by affidavit, denying the execution of the note, and the cause was tried upon that issue, alone.

In appellant’s argument, a number of reasons are assigned why the judgment should be reversed, all of which are based upon the rulings of the court in respect to the evidence, particularly the deposition of Henry G. Massey, which was taken in the cause on the. part of the plaintiff. The point which seems to be chiefly relied on, arises upon a motion to suppress part of the answer to the following interrogatory: “You may state, whether the note” (referring to the one sued on) “was a renewal note.” Objection being made, unless the note was produced, the witness then, as we understand the record, produced it, and proceeded first to read the credits indorsed on it, the whole answer being as follows:-

“Paid, July 25, 1879, $275 and interest on note to date. ' Paid, August 5,1879, $1782.75 and interest'on note to date. That $1782.75 my father owed,—that ‘is, he gave me a deed to one hundred acres of land in 1866; told me to go to work on it, and improve it, and suit myself,” (objection by defendant,) “but had never given me a deed, and after he received notice from the bank in 1879, he goes to Jacksonville and deeds this one hundred acres of land away from me, with the exception of forty acres where the house and barn stand, and said to me and told me to give him a mortgage for $3000, and he . would enable me to get a loan of $2000 on it, to pay upon this note. He did that. I had to give him a mortgage for $3000, while I never owed him a dollar in the world. He did that to fix the bank so they couldn’t get anything off of me, and he was going to put his property out of his hands, to avoid this note.”

The motion to suppress, so far as this answer is concerned, was expressly limited to so much of it “as speaks of deeds made.” The court, in passing upon the motion, followed its literal terms by ordering those parts of the answer which we have italicized, stricken out. It will be observed that while the remaining part of the answer contains the word “deeds,” used as a verb, and also speaks of a deed “never given, ” not a word is to be found about a “deed made,”- so that, construing the motion according to its literal terms, the court really sustained it, instead of denying it, hence there is no ground to complain. We are not inclined, however, to rest our decision of the question solely upon this view, but rather prefer to place it upon the broad ground that the general principle upon which appellant bases the objection,—namely, that the best evidence by which a fact is susceptible of being established must always 'be produced, or its absence accounted for,—has no application to the facts above stated. We fully recognize the rule that whenever the existence of a deed or other writing is directly involved in a judicial proceeding, whether as proof of the precise question in issue or of some subordinate matter that tends to establish the ultimate fact or facts upon which the case turns, such deed or other writing, itself, must be produced, or its absence accounted for, before secondary evidence of its contents is admissible. Yet, while this rule is fully conceded, it is also true that a witness, when testifying, may, for the purpose of making his statements intelligible, and giving coherence to such of them as are unquestionably admissible in evidence, properly speak of the execution of deeds, the giving of receipts, the writing of a letter, and the like, without producing the instrument or writing referred to. To hold otherwise would certainly be productive of great inconvenience, and in some cases would defeat the ends of justice. References to written instruments by a witness, for the purpose stated, are to be regarded as but mere inducement to the more material parts of his testimony.' The present case well illustrates the principle in question. As remotely bearing upon the issue being tried, the plaintiff sought to show the appellant had avowed a purpose not to pay the note,—that he had said he was going to put his property out of his hands in order to defeat the claim. Now this, under the issue, is the important part of the answer to the question, if, indeed, any of it can be so regarded. All, therefore, that was said about the deeding of the land, the giving of the mortgage, and getting the loan of $2000, we regard as mere matter of inducement to the more important part of the testimony. But even conceding appellant’s view was correct to the full extent claimed, we would not feel at liberty to reverse this case a second time for the reason assigned. Two juries have decided against the appellant upon the same issue, and their finding has twice received the sanction and approval of both the lower courts, and we are satisfied the ruling complained of could have had no material agency or influence in bringing about the result reached upon the last trial.

Most all the other objections are of the same character of the one we have just considered, and, for the reasons stated, must be disposed of in the same way.

Again, it is claimed the court erred in refusing to permit appellant to show, by two witnesses tendered for that purpose, that the name of Laurie, as it appeared on the note, was not in his handwriting. There was no issue of that kind before the jury. What was sought to be proved might have been true, and the appellant, notwithstanding, liable. Nor was the evidence offered relevant for impeaching purposes, as is supposed. If the evidence had been allowed, the other side would have had the right to have met it by countervailing testimony, and thus the trial might have been protracted almost indefinitely, on an issue not involved in the pleadings.

In short, we see no substantial error in the record, and the judgment will therefore be affirmed.

Judgment affirmed.


text:
    The Board of Water Commissioners v. Clinton L. Conkling.

      Filed at Springfield

      March 30, 1885

    1. Springfield water works—assessments on account of hydrants— •whether to be made annually. Section 15 of the act of February 21, 1861, to incorporate the Springfield Water Works Company, which imposes a duty to construct hydrants, and then declares that the commissioners “shall assess the houses and other buildings in the vicinity of said hydrants in the proportion in which they shall deem the same, respectively, benefited, ” does not authorize the annual assessment of the houses and buildings in the vicinity for supposed benefits. The intention was, that the entire benefit should be assessed at once.
    2. Under that section the commissioners are not authorized to go on, from year to year, and assess the property for supposed benefits conferred, for the purpose of keeping up repairs. The power to make annual assessments of a tax for the extension and maintenance of water works is given in the act of April 27, 1871. (Rev. Stat. 1874, chap. 24, sec. 248.)
    3. Same—mode of collecting assessments. If the power to “assess the houses and other buildings” in the vicinity of hydrants, means to give authority to fix the amount to be paid by the owners, such sums can only be collected by suit, the same as any other indebtedness; but if it means to confer upon the board the power to make special assessments as known in the statute, they can only proceed in the manner provided by the general law for the collection of special assessments, whereby the owner, on proper notice, can be heard before a judicial tribunal before his rights can be determined.
    4. Sections 12 and 15, of the act of February 21, 1861, relating to the Springfield Water Works Company, in so far as they authorize the collection of an assessment in a summary manner, by levy and sale, under a warrant of the commissioners, has been repealed or changed by the constitution of 1870 and the general laws passed in pursuance of that instrument on the subject, which general law must be followed in such cases.
    Appeal from the Circuit Court of Sangamon county; the Hon. William L. Gross, Judge, presiding.
    Mr. N. M. Broadwell, for the appellant.
    Mr. James C. Conkling, for the appellee.
   Mr. Justice Craig

delivered the opinion of the Court: -

The buildings of appellee, on account of their proximity to fire hydrants, were assessed in the years 1879, 1880, 1881, 1882 and 1883, under section 15 of appellant’s charter, for supposed annual benefits arising from the location of the hydrants, and the board of water commissioners for the city of Springfield was proceeding to collect the assessments by warrant issued by the board, under section 12 of the charter, when appellee filed this bill to enjoin the constable who held • the warrant from collecting the assessments by the sale of personal property upon which he had levied.

An act to incorporate the Springfield Water Works Company was passed by the legislature on the 21st day of February, 1861. The act designated that the corporation should be known as “The Board of Water Commissioners of the city of Springfield, ” with power to contract, sue and be sued, to purchase and hold real and personal property, to have a common seal, to make by-laws, and do all acts necessary to carry out the objects of the act. Section 8 authorized the commissioners, in conjunction with,the city council of Springfield, to borrow not exceeding. $200,000 upon the credit of the city, and, with the approval of the city, issue bonds for the same. Section 9 empowered the commissioners to assess the amounts to be paid for water used at each house or other building, against the occupant or owner, upon such basis as they might deem equitable. Section 10 authorized the board to assess as water rents such amounts as they deemed equitable, upon the owner or occupant of any building situated on lots adjoining any street through which the distributing water pipes may be laid, from which such building may be conveniently supplied with water, whether the owner shall make use of the water or not. Section 11 authorized the commissioners, from time to time, to assess upon the person occupying or owning any house situated in the vicinity of any public hydrant, where said house is not supplied by a private hydrant,-such amount as, in their judgment, the occupant might be benefited by the use of such public hydrant. Sections 12 and 15 are as follows:

“Sec. 12. It shall be the duty of the said commissioners to collect the rents so assessed, as required in the foregoing sections; and in case any person or persons so assessed shall neglect to pay any such assessment for ten days after the time fixed for payment thereof, of which notice shall be given in a newspaper published in said city, such notice to be at. least ten days before the time fixed for the payment of such rents, said commissioners shall issue their warrant, under the seal of said corporation, directed to the marshal or any constable of said city, commanding him to make the amount specified in such warrant, being the amount due for water rents, as aforesaid, together with the costs of advertising the same, and such fees as constables are entitled to by the laws of this State in the levy and sale of personal property upon execution, out of goods and chattels of the person or persons so assessed, as aforesaid; and the marshal or constable, in such case, may levy, under 'said warrant, upon any personal property of the person or persons against whom the same is issued, and sell the same at public auction, after giving ten days’ notice of the time and place of sale, in some newspaper published in said city; and such warrant shall authorize the sale of any house or building on which any lien shall have attached, as aforesaid, subject only to such bona fide .incumbrances as shall have existed prior to the time of the introduction of such water, as aforesaid.”
“Sec. 15. It shall be the duty of said commissioners to construct hydrants of sufficient size and capacity, and in such localities, as they shall deem desirable for the purpose of extinguishing fires; and they shall assess the houses and other buildings in the vicinity of said hydrants in the proportion in which they shall deem the same, respectively, benefited; and the said assessment shall be collected in the same manner as herein provided for the collection of the water rents assessed by said corporation.”

The hydrants involved in this controversy were constructed in 1867, at the time of the construction of the water works in the city; but it will be observed that the assessments which appellant undertook to collect were not made on account of the original construction of the hydrants, but on account of supposed annual benefits which the construction of the hydrants added to the property.

The first question to be considered is, whether section 15 of the charter confers upon the board the power to make annual assessments on property for hydrants already constructed. The language of the section, considered in connection with the other sections of the act, does not seem broad enough to confer the power claimed. The language used is: “It shall be the duty of the said commissioners to construct hydrants of sufficient size and capacity, and in such localities, as they shall deem desirable for the purpose of extinguishing fires; and they shall assess the houses and other buildings in the vicinity of said hydrants in the proportion in which they shall deem the- same, respectively, benefited. ” Nothing whatever is here said in reference to annual assessments, or assessments for repairs, or furnishing the required supply of water, but the requirement is to construct hydrants, and the buildings are to be assessed to pay for the original construction. If it had been intended by the legislature that the board of commissioners should go on, from year to year, and assess the property for the supposed benefit conferred, for the purpose of keeping up repairs, it is plain that different language would have been employed to express that intention. In section 9, where water has been úsed by the owner or occupant of a building, the act declares that the commissioners shall, from time to time, assess the amounts to be paid for water used; and where a public hydrant has been constructed, by the terms of section 11 the commissioners are authorized to make assessments, from time to time. But no such language is found where an assessment is made for construction. The intention, no doubt, was, that where a hydrant was constructed under section 15, the entire benefit should be assessed at once. If such had not been the intention, a provision similar to that embraced in section 9 or 11 would have been incorporated in section 12. That cities did not have the power to make annual assessments, would seem to follow from the enactment of a law April 22, 1871, (Rev. Stat. 1874, chap. 24, sec. 246,) which declares that the legislative authority of any city which established water works shall have power to annually levy and collect a tax, which tax shall be known as “the water fund tax,” for the extension and the maintenance of the water works, and that the board of water works, should first certify to the. legislative authority of the city the amount necessary for such purposes. This act was passed with an emergency clause, which would seem to indicate, in the opinion of the legislature at least, that no provision of law existed under which the system of water works in cities could be repaired and maintained. If resort could be had to special assessments, where existed the necessity for this new statute, and that it should go into effect immediately ?

But if the commissioners had the power to make the assessment, can they go on and collect without the sanction of any judicial proceeding, as they were attempting to do ? No judgment had been rendered, nor had any court issued an execution, and yet a constable had seized the personal property of appellee, and was about to sell it under a warrant issued by the commissioners,—a body possessing no judicial "powers whatever. The precise nature of the power intended to be conferred by section 15 of, appellant’s charter is not entirely clear, from the reading of the charter. If, by the use of the term “assess the houses and other buildings,” it was intended merely to give appellant authority to fix upon the amount that should be paid, then, as between the board and the owner, the amount assessed could only be collected in the same manner as any other indebtedness,—by suit brought for that purpose. If, on the other hand, the language used was intended to confer upon the board of commissioners the power to make special assessments, as that term is known in the statute, they could only proceed in the exercise of that power in the manner provided by law. If they proceeded in any other manner their acts would be illegal, and binding upon no one. It will be observed that the city of Springfield has adopted the general law for the incorporation of cities and villages, and it will, of course, be controlled by all acts of the legislature relating to such incorporations.

Article 9, section 9, of the constitution of 1870, provides that the General Assembly may vest the corporate authorities of cities, towns and villages with power to make local improvements by special assessments, etc. Section 4, of article 9, declares that the General Assembly shall provide that where it may be necessary to sell real estate for the non-payment of special assessments, a return of such assessments shall be made to some general officer of the county. Under and in pursuance of these provisions of the constitution, the legislature passed article 9, of chapter 24, of the Revised Statutes of 1874, where will be found a complete system for making and collecting special assessments, and under which the right of every property owner is fully guarded and protected. Notice of the proposed assessment has to be given; time and opportunity are given the property owner to file objections; judgment is required to be rendered. Indeed, various safeguards for the protection of the property of the citizen are here provided, and they are all so inconsistent with 'sections 12 and 15 of appellant’s charter, that the two can not stand together; and we are satisfied that sections 12 and 15, in so far as they authorize the collection of an assessment in a summary manner, as therein indicated, have been repealed or changed by the constitution and the general laws jiassed in pursuance of that instrument on the subject, which general laws must prevail and be followed in such cases. This view is also strengthened by the passage of an act May 21, 1877, providing for the collection of water taxes, rates or assessments heretofore levied, in cities which have adopted the general Incorporation law. Laws of 1877, p. 60,.

The decree of the circuit court will be affirmed.

Decree affirmed.


author: Mr. Justice Sheldon

text:
    The People ex rel. William D. Lindsey, Collector, v. Levin Y. Palmer.

      Filed at Springfield

      March 30, 1885.

    1. Taxation—assessor’s plats—whether necessary—in order to fix the character of real estate as land or town lots. It is not necessary that real estate be laid out into lots, surveyed and platted as required by the statute relating to the laying out of towns or additions thereto, to determine its character under the Bevenue law, as, whether it is to be treated as land or as a lot. It is rather the situation of the property,, and the uses to which it is put, which determine its character in that regard.
    2. The owner of a block of ground wholly within the limits of a city, containing about five acres, occupied the same as a residence, yard and garden, and a part for a pasture. The premises were surrounded on all sides by public streets of the city, and had been platted by the assessor into lots for the purposes of taxation. It was held, that the same should be treated as a city lot, under the- Bevenue law, though larger than ordinary lots, and that the understanding of the assessor and county clerk, and their treating it as land, could not be admitted as determining its character.
    Appeal from the County Court of Vermilion county; the Hon. David D. Evans, Judge, presiding.

      Mr. C. M. Swallow, State’s Attorney, for the appellant.
    Messrs. Mann & Frazier, for the appellee.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This is an appeal from a judgment of the county court of Vermilion county, refusing to give judgment for taxes against certain real estate upon an application of the county collector for such judgment. The case was heard upon an agreed statement of facts: That the plat annexed represented the situation of the premises in question; that the lots therein are subdivisions made by the assessor; that the streets thereon shown are streets of the city of Danville, in the county of Vermilion, and that said premises are within the corporate limits of said city; that directly north of the premises, and on the north side of North street, are two large residences; that directly east of them, and on the east side of Gilbert street, are four residences and a school house grounds; that on the west side of the premises, and on the west side of Mill street, is a public park, and that the premises are four blocks west of the public square in Danville; that they are occupied by the owner as a residence, and that he pastures two cows on such portion of the same as is not occupied by his residence, garden, barn-lot and door-yard; that the premises have never been platted and laid out into town or city lots by the owner; that they were assessed by the assessor of Dan-ville township, at $9800; that the State Board of Equalization deducted three per cent from the equalized valuation of town and city lots in Vermilion county, and added five percent to other lands in said county'; that the county board, prior to such action of the State board, added seven per cent to the assessed valuation of other lands in Danville township, leaving the assessment of town and city lots unchanged; that the county clerk, in extending the taxes for the year 1883, calculated the same, so far as said premises are concerned, upon the assessed valuation aforesaid, with the seven per cent added by the county board and the five per cent added by the State board, instead of deducting the three per cent,—in other words, the taxes were extended against the said premises as though they were not town or city lots, but lands other than town or city lots.

The only question presented by the record is, should the real estate in question be considered, for the purposes of taxation, as city lots, or lands ? If city lots, then the county clerk should have extended the taxes upon the assessed value of $9800, less three per cent deducted by the State Board of Equalization. If lands other than city lots, the county clerk was justified in extending, as he did, the taxes on the assessed value of $9800, with the seven per cent added by the county board and with the five per cent added by the State board, and the county court should have given judgment against the same for the taxes as extended.

For the purpose of taxation the legislature has classified property, and provided that in the equalization by the county board, “it may consider lands, town or city lots, personal property and railroad property, (except ‘railroad track’ and ‘rolling stock,’) separately, and determine a separate rate per cent of addition or reduction for each of said classes of property, as may be necessary to a just equalization of the assessed value of said classes of property within the respective towns, and Of the same between the several towns or districts in the county.” And again: “Lands shall be equalized by adding to the aggregate assessed value thereof, in every county in which said board may believe the value to be too low, such rate per centum as will raise the same to its proper proportionate value, and by deducting from the aggregate assessed value thereof, in every county in which said board may believe the valuation too high, such ‘per centum as will reduce the same to its proper value. Town and city lots shall be equalized in the same manner herein provided for equalizing lands.” The statute provides that whenever the owner of lands shall wish to subdivide the same into two or more parts, for the purpose of laying out a town or making addition to any city, village or town, he shall cause the same to be surveyed, and a plat thereof to be made by the county surveyor, which plat shall particularly describe and set forth all the streets, alleys, common or public grounds, and all in and out-lots, or fractional lots or blocks, within, adjoining or adjacent to the land so divided, giving the names, widths, courses and extent of all such streets and alleys, and numbering all lots and blocks by progressive numbers, giving their precise length and width,—which plat, acknowledged by the owner, with the certificate of the owner, is to be recorded. And it is made a finable offence to lay out any town, or make any addition to any city, or to survey the same, or cause it to be surveyed, in any other manner than as thus described.

It is said that the above is the only mode recognized by our law of creating a town or city lot, and that therefore the premises in question can not be such, as they were never platted and laid out into town or city lots by the owner. We regard this as a too strict construction—that it is rather the situation of the property, and the uses to which it is put, which should determine its character under this classification of the statute, whether as a town or city lot, or land. The property, here, is surrounded on all sides by streets of the city, consists of 4I8-(J8-0- acres, and is used as a residence by the owner. It is larger than an ordinary city lot, but not larger than very well might be a block or out-lot, which, in the contemplation of the statute, may be platted in the laying out of a town. The property is in the city of Danville, and we think it may properly be ranged in the class of city lots, within the design and intention of this classification which the statute makes, for the purposes of taxation. The mere circumstance of its not having been laid out and platted as a city lot, would not seem to be material. It was a city lot in fact, though not laid out and platted as such.

The statute provides, when lands are subdivided into parcels less than one-sixteenth part of a section, or in such manner that they can not be easily and properly described without noting the metes and bounds of such tracts, it shall be the duty of the assessor to cause the same to be surveyed, and the plat thereof to be recorded, on failure of the owner, on request, to do so. In accordance with this provision the assessor made a subdivision of the property into five lots, as appears by the plat referred to in the argument. The Revenue law requires that lands shall be listed in tracts, and in a proper column opposite each tract shall be stated the number of acres, but nowhere is there any requirement that opposite a city or town lot shall be stated its quantity; and opposite this property, as listed and assessed, in the column for “acres, ” the number of acres is stated. These facts are remarked upon as showing that the assessor treated the property as land, in platting it as land for the purpose of taxation, and then listing and assessing it as land, as is also the further fact that the county clerk recognized the property as land in adding the seven and five per cent, and extending the taxes against it as land. Of course the understanding of these county officials, and the way in which they treated the property, can not be admitted as determining its character. -

We can not say that the county court erred in its ruling, and the judgment will be affirmed.

Judgment affirmed.

Scholfield, Ch. J., and Scott, J., dissenting.


text:
    Dempsey N. Solomon v. Charles G. Nicholas.

      Filed at Springfield

      March 30, 1885.

    1. Agency—deposit of money of principal by the agent—depositary delivering the money to the principal—-whether liable to the agent making the deposit. A sub-contractor received money of the general contractor in excess of what was due him, as the agent of the general contractor, to pay debts due to laborers and material-men, whereby to protect the principal from liability from the enforcement of liens, but instead of paying out the money deposited it with another for safe keeping, under a promise of the latter to pay the same only to the depositor, or upon his written order. The depositary, on the demand of the principal to whom the money belonged, delivered the same to him. It was held, the depositary was not liable to the agent for a breach of his contract, the principal having the right to revoke the agency of the sub-contractor at any time before he paid out the money as directed. In such case the delivery of the money to the true owner will relieve the depositary of liability to the agent from whom he received it.
    2. Mechanic’s men—of laborers, etc., on railroad, under sub-contractor. The stipulations in a general contractor’s contract for the construction of a railroad were required to be performed in such manner as not to relieve him from the immediate charge and responsibility of the work, and were such that the company might forfeit the same for a neglect to put on sufficient force to complete the work in the time stipulated, or require him to make up balances due to laborers or persons furnishing materials or supplies, monthly. It was held, that the relations of the sub-contractor to the general contractor were such that the work done and materials furnished under sub-contracts could be regarded as materials furnished or labor done -under his contract, so as to enable those furnishing the same to enforce a lien against the railroad under the statute.
    3. Sub-contractor—a contract construed as to the relative rights and powers of the general contractor and the sub-contractor. Where a general contractor for building a railroad is held liable to the railway company to protect it against liens of laborers and material-men, in a contract sub-letting a part of the work, reserved the option to retain in his own hands the amount of estimates, or such part thereof as he might deem necessary, and pay the laborers and other creditors of the sub-contractor, and charge the amount thereof as so much money paid to him, the general contractor may keep back estimates due the sub-contractor, and pay it out on debts incurred by him in attempting to perform his sub-contract, and in so doing the general contractor can not be charged with meddling in his affairs; and such general contractor may make such payments through the sub-contractor, as his agent, or by any other agent.
    4. And where such general contractor has advanced money to a-sub-contractor to pay debts, for which each is separately liable, he may, at any time before it is paid out, revoke the agency of the sub-contractor, and pay out the same through another agent, and charge the same to the sub-contractor, and deduct the same from the sum due him, in the next monthly estimates; and such sub-contractor whose debts are thus paid can have no cause of complaint.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Macoupin‘county; the Hon. W. R. Welch, Judge, presiding..
    Messrs. Rinaker & Rinaker, for the appellant.
    Mr. B. R. Burroughs, and Messrs. Corn & Shirley, for the appellee.
   Mr. Chief Justice Scholfield

delivered the opinion of the Court:

Nicholas was a sub-contractor under Harris Bros. & Co., general contractors, for the doing of a part of the work of constructing the St. Louis, Jerseyville and Springfield railroad. Payments were usually made on the loth of each month, on the engineer’s estimates for the preceding month. On the 11th of August, 1881, Nicholas applied to Harris Bros. & Co. for, and obtained from them, $2500, in addition, to the amount then due him on estimates under his subcontract, which amounted to $3000. Nicholas did not pay out this money to the laborers and others to whom he was indebted for work, etc., done on his sub-contract during the month of July, on the 15th of August, but on the 16th of that month he delivered it, inclosed in a shot-bag, to Faulkner, his general agent, requesting him to deposit it with Solomon, who was a general merchant at Palmyra, having an iron safe, with direction to Solomon that he should deliver it to no one but Nicholas, unless upon the order of Nicholas, and then only in accordance therewith. On the evening of the same day, Faulkner, having previously inclosed in the bag with the money the pay-rolls upon which it was intended to be paid out to the creditors of Nicholas for labor done, materials furnished, etc., on his sub-contract during the previous month of July, deposited the bag with Solomon, directing him as requested by Nicholas, and Solomon accepted the deposit, promising to deliver it in accordance with this direction. Upon the following morning, (the 17th) Solomon, without any order from Nicholas, and in his absence, on the demand of Harris Bros. & Co., and upon receiving a bond of indemnity, delivered the deposit to them, and' thereupon Hasten, the chief engineer of the railroad company, and the agent of Harris Bros. & Co., took the deposit, and on that and the next day paid the money all out to creditors of Nicholas, for labor done, materials furnished, etc., on his sub-contract during the previous month of July, as the amounts were specified on the pay-rolls inclosed with the money in the.bag. A few hours after Solomon had delivered the deposit to Harris Bros. & Co., Nicholas called upon Solomon, and Solomon informed him that he had delivered the deposit to Harris Bros. & Co., and that their agent, Hasten, had proceeded down the line of the road to pay off his men. On the next day Nicholas made a formal demand on Solomon for the delivery of the deposit to him. Nicholas brought an action of assumpsit against Solomon, filing simply the common money counts. Solomon pleaded non assumpsit, set-off, and a special plea that he had and did apply and pay out the said sums of money in the several counts of plaintiff’s declaration mentioned, to and for the plaintiff, and at his special instance and request. Issue was joined on the several pleas.

Upon the trial Solomon offered'to read in evidence certain clauses in the contract between Harris Bros. & Co. and the railroad company, whereby Harris Bros. & Co. were required to complete the work within the time therein specified. The several stipulations of the contract are required to be performed in such manner as not to relieve Harris Bros. & Co. from immediate charge and responsibility of the work, nor to sub-let it, except with the approval of the railroad company, and providing for payments on estimates of the engineer to be made of work, on or «before the 10 th of the month, for labor and materials done and furnished for the preceding month, with retention by the company of ten per cent of the estimate, which was to be forfeited in case the work was not completed in the time and manner provided for, with full pay in case of final completion, and also providing for prompt execution of the work, with the right to the party of the second part to put additional hands on the work, or to declare forfeited the contract, if the party of the first part neglected to put on a sufficient force to complete the work in the time stipulated, and authorizing the railroad company to reserve the right to require Harris Bros. & Co. to make up balances due laborers or persons furnishing materials or supplies, of any description, of said work, on or before the 10th day of each month, for work done, etc., for them during the preceding month, placing the name of each laborer, and the amount due him or them, on an envelope, and place said envelopes in the hands of the railroad company, when the railroad company was to have said laborers and others paid the amounts due them, and to deduct the money so paid out from the current monthly estimates of Harris Bros. & Co. He also, at the same time, offered in evidence a clause in the sub-contract between Harris Bros. & Co. and Nicholas, whereby Harris Bros. & Co. reserve to themselves the option to retain in their own hands the amounts of estimates, or of such portions thereof as they may deem necessary, and pay the laborers and other creditors of Nicholas, and charge the amount thereof as so much money paid to him under the provisions of the sub-contract. Solomon then offered to follow this evidence by evidence that at the time Nicholas obtained- the $2500, he was actually indebted in that amount above the amount then due him upon estimates, to laborers and other creditors, on account of work done, etc., for him, while attempting to carry out his subcontract during the previous month of July, as shown by the pay-rolls inclosed with the money in the bag; that he so represented to them’ when he applied for the money; that he was unable to raise the money to meet those debts, and so informed them; that they then, in order to prevent a cessation in the progress of the work, and to protect themselves against loss, placed the money in Nicholas’ hands to pay those debts; that it was delivered by them and accepted by him on the condition alone that he ivas to take it and pay those debts; that after the payments were made by their agent, Hasten, they charged the amount up in their account against Nicholas, and that Nicholas has never paid, or offered to pay, any of those debts since Hasten paid them, but has ratified the payment of several of them,—all of which, on objection of Nicholas, the court refused to allow to be given in evidence.

This offer must be considered in connection with section 52, chapter 82, of the Revised Statutes of 1874, entitled “Liens,” which gives to every material-man and laborer furnishing materials, supplies, etc., and doing labor for a contractor with a railroad corporation, a lien upon the property of the corporation. The relations of Harris Bros. & Co. to the railroad company, by virtue of their contract, were such that the work done and materials furnished under the sub-contract could be regarded as materials furnished or work done under their contract, and so enable those furnishing the materials and doing the work to enforce a lien, under the statute, against the railroad company. The railroad company would thus, in the event of the non-payment of these debts, be liable to the extent of its property against which the liens might be enforced, and to avoid that liability and protect itself against loss it might forfeit the contract of Harris Bros. & Co., retain the ten per cent in its hands on the estimates, and take charge of the work and pay off the creditors itself. And Harris Bros. & Co., to avoid a forfeiture of their contract, and the loss of profits to be derived from its performance, and the loss of the ten per cent on estimates in the hands of the railroad company, are certainly authorized to exercise their privilege, under their contract with Nicholas, of retaining money due him on estimates, and paying it out’on debts incurred by him in attempting to perform his sub-contract. The failure to pay these debts creates a direct liability in them. They owe the duty, certainly to the railroad company, if not directly to the material-men and laborers, to pay the debts which Nicholas has failed to pay. That liability is not contingent upon Nicholas having money due him upon estimates in their hands, but absolute, by virtue of their contract with the railroad company. As between Nicholas and them, they have reserved the right to pay these debts, and thus he can not be heard to say that in paying them they are simply intermedling in his affairs. If they pay them before he has money in their hands, they may, Under the contract, charge the amount to him, and deduct from his next estimates. Thus owing the duty of paying in the event of Nicholas not paying, we are unable to perceive any reason why that duty may not be discharged by an agent. Certainly, they might place the money in the hands of a third party, and direct him to make the payments, and his payments would be good. No one can question that. Then why can not Nicholas be that agent ? If paying the debt to the material-men and laborers was doing no more than extinguishing his own liability, it is, of course, apparent that he would be acting simply for himself. But we have seen, paying the debt to. them is not necessarily the mere extinguishing of his liability. So far as he is concerned, if it .is paid by Harris Bros. & Co. it does not extinguish his liability at all. It extinguishes their liability and changes his liability from the material-men, laborers, etc., to them. He owes the debt after as before the payment, only to .a different party. As between Harris Bros. & Co. and Nicholas, we know of no reason why he may not consent to act as their agent in making such payments,—why he may not consent that their money in his hands remains their money, and that when he pays it to his creditors, under his sub-contract, it extinguishes the debt as to them, but changes the creditor only as to himself. Third parties might not be bound by such a contract, at least without notice, but as between the parties alone, it is different. They may consent to occupy any lawful relation to money in hand that they choose, and this surely is not an unlawful relation.

We think the tendency of the evidence offered was to prove this state of the case: . That the money was not loaned to Nicholas on his individual responsibility, but that it was placed in his hands to pay the debts contracted by him to his material-men and laborers, by Harris Bros. & Co., because they were legally bound to pay them in order to protect their interests under their contract with the railroad company; that the money was placed in his hands and accepted by him on condition that he was simply to take it and pay it out on those debts, and thus, in fact, as their, agent. If, as between Harris Bros. & Co. and Nicholas, the money was theirs, in his hands as agent, only, they could, of course, at pleasure revoke their agency and repossess themselves of the money at any time before it was paid out, and place it in the hands of a different agent. Although Solomon contracted to deliver the money to Nicholas only, he is absolved from liability by having delivered it to Harris Bros. & Co., the true owners. “The Idaho,” (93 U. S.) 3 Otto, 575.

Admitting the rejected evidence, the case seems destitute of all merit. The plaintiff applied to get money to pay certain debts,—that is, to change his debt from the laborers and material-men to the contractor. He got the money only on condition that it should be thus applied, and it has been thus applied. The laborers and material-men are no longer his creditors,—the contractors have taken their place. He has lost nothing, and having consented to occupy the relation of agent with respect to the money, not even a technical right has been invaded. We are therefore of opinion that the court erred in excluding the evidence offered.

The judgment is reversed and the cause remanded.

Judgment reversed.


author: Per Curiam :

text:
    George H. Taylor v. Calvin H. Frew.

      Filed at Springfield

      March 30, 1885.

    liES judicata—in the Supreme Court. Where objections to the validity of a defendant’s title to land are settled by this court in his favor upon his appeal, the decision will be adhered to on a writ of error by the opposite party, when the same objections are again urged.
    Writ of Error to the Circuit Court of Ford county; the Hon. Owen T. Reeves, Judge, presiding.
    This was an action of ejectment, brought by George H. Taylor, in the Ford circuit court, against Calvin H. Frew, to recover the possession of ten acres of ground. The defendant set up and relied on a tax title which was passed upon when the case was before this court at a former term, and reported in 106 Ill. 159.
    Mr. Stephen B. Moore, for the plaintiff in error.
    Mr. Calvin H. Frew, pro se.

   Per Curiam :

This case was before this court at a former term, on the appeal of defendant, against whom judgment had been rendered in the trial court. On reference to the opinion then delivered, a full statement of the facts will be found. (Frew v. Taylor, 106 Ill. 159.) The judgment of the trial court was then reversed because of the error of the court in excluding the evidence of defendant’s title to the land in controversy. On the remandment of the cause, a new trial was had, which resulted in favoj: of defendant, and now plaintiff brings the case to this court on error.

No question was made on the former hearing of the cause in this court, nor is any now made, as to the completeness and sufficiency of plaintiff’s claim of title, unless it has been broken by legal proceedings divesting the title from that chain and investing it in defendant. It will be seen that most of the objections urged on the former appeal, to the validity of defendant’s title, are again insisted upon on the present hearing. It is sufficient to say they were overruled by this court in its opinion then delivered, and it w'ill not be necessary to repeat, here, any part of the discussion then given to the objection raised, and it will not be done. Very little additional evidence is found in the present record, and wdiat there is does not seriously affect the merits of the case as then determined. In all its essential features the case is precisely the same as it was when before this court at the former term, and for the reasons then assigned the present judgment will be affirmed.

Judgment affirmed.


text:
    Mary Dodgson et al. v. Edwin Henderson.

      Filed at Springfield

      March 30, 1885.

    1. Chancery jurisdiction—when defence is not available at law. "Where the payee of a note is dead, and suit is brought on it at law by the executors of his will, the principal in the note is not a competent witness in the action at law, to prove an agreement between him and the payee for the extension of the time of payment, and this fact will give a court of equity jurisdiction of a bill by the surety to enjoin the prosecution of the action at law, in which his defence can not be shown for the want of any other evidence of the fact of the agreement to extend the time of payment.
    2. Witness—competency of principal maker of note in favor of his surety, in law and in equity. In an action at law by the executor or administrator of á deceased payee of a note, against both the principal and surety in the note, the principal is pot a competent witness for the surety to show the discharge of the latter by a valid agreement of the payee to extend the payment of the note to a definite time after its maturity. The rule is otherwise in a court of equity—there he is a competent witness in behalf of the surety.
    . 3. Consideration—for an agreement to extend the time of payment. The agreement of the principal maker of a note given for a loan, to keep the money for another year after it is due and pay the same interest thereon as before, is a good and sufficient consideration to sustain the agreement of the legal holder of the note to extend the time for the payment of the same for another year, and the agreement for such extension will release the surety not assenting thereto.

      i. Surety— discharge by an agreement to extend time of payment. If a creditor, by a valid and binding agreement, without the assent of the surety, gives further time for payment to the principal debtor, the surety will thereby be discharged.
    5. Same—contract construed strictly. The contract of a surety is one that is to be strictly construed, and in no case can he be held liable beyond the terms and conditions of the contract to which he gives his assent.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Greene county; the Hon. George W. Herdman, Judge, presiding.

      Messrs. Withers & Henshaw, for the appellants:
    A valid consideration must be given for extension. The time of payment must be given by a contract that is binding on the holder of the bill. A contract without consideration is not binding on him. The delay in suing under such contract is gratuitous. Philpot v. Briant, 4 Bing. 717, and cases cited in note 3; Story on Promissory Notes, 532, 533.
    A promise to forbear in the collection of a debt, upon a promise of the debtor to pay the interest “for which he is already liable,” can not be enforced for want of sufficient consideration. Stuber v. Schack, 83 Ill. 191; Waters v. Simpson, 2 Gilm. 576.
    If no new surety be given requiring a new remedy, the contract is not valid, and the delay is.gratuitous. Gahn v. Niemcewicz, 11 Wend. 319.
    A new agreement to pay interest, creates no additional obligation. Reynolds v. Ward, 2 Wend. 504; Pabodie v. King, 12 Johns. 426.
    The agreement must be of such a character that the creditor’s right to sue the debtor is suspended, and that the surety can not make payment. Waters v. Simpson, 2 Gilm. 574.
    Mr. James R. Ward, for the appellee:
    A money consideration for the extension of the time of payment is not necessary. One promise is a sufficient consideration for another. Thayer v. Allison, 109 Ill. 180; Poolv. Docker, 92 id. 510; Cook v. Murphy, 70 id. 99.
    The agreement of the principal debtor to keep the money for a given time after it is due, and to pay interest for that time, is a good consideration to sustain a contract extending the time of payment for such given time. Crossman v. Wohlleben, .90 Ill. 541.
    If any stipulations are made between the creditor and the debtor, which are not communicated to the surety, and are inconsistent with the terms of his contract, or are prejudicial to his interests therein, they will operate as a virtual discharge of the surety from the obligation of his contract. 1 Story’s Eq. Jur. secs. 323-325.
    If a holder of a note already matured, makes a valid agreement with the principal to extend the time of payment of . the principal sum, he thereby discharges the surety. This doctrine, which is derived from chancery, is founded on the obligation which the contract for delay imposes upon the conscience of the creditor to perform it. Brandt on Surety and Guaranty, secs. 301, 304, 307.
    The remedy we have pursued^ in this case, and the principles relied on and cited above, have been approved by this court in Bradshaw, Admr. v. Combs, 102 Ill. 429.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by Edwin Henderson, to enjoin the prosecution of an action brought to collect a certain promissory note executed by George B. Allen, as principal, and complainant, as surety, bearing date November 6, 1875, whereby they jointly and severally promised to pay, twelve months after the date thereof, to Christopher Dodgson, $2000, with interest at ten per cent per annum. Dodgson died testate, April 4, 1878, and the executors of - the estate, with George B. Allen, the principal on the note, were made parties defendant to the bill.

It is alleged in the bill that Allen was principal, and complainant surety, on the note; that Allen paid the interest op the note as it became due, up to November 6, 1876, and on January 10, 1877, Dodgson agreed with Allen to extend the time of payment to the 6th day of November, 1879, in consideration of the prompt payment by Allen, annually, of the interest; that Allen, in consideration of said promise of extension of the time of payment, agreed with Dodgson to keep the amount named in the note ($2000) until November 6, .1879, and pay the interest thereon, annually; that the extension of the time of payment was made without the knowledge or consent of the complainant. It is also set up in the hill that an action at law had been brought in the circuit court of Greene county, against Allen and Henderson, on the note, which was pending when the bill was filed; that Henderson set up as a defence to the action, that he was surety on the note, and that after the note became due, Dodgson, for a valuable consideration, agreed with Allen to extend the time of payment to November 6, 1879, without the knowledge or consent of complainant. It is also alleged that Allen is the only person by whom the agreement to extend the day of payment can be proven; that the executors will not consent that Allen may appear as a witness and testify in the action at law. The bill contains other allegations, hut it will not be necessary to state them here, as enough has been set out to show the grounds upon which the complainant relies for relief.

It is apparent from the allegations of the hill, as well as from the evidence introduced in support of the bill, that complainant could not make a defence to the action at law, for the reason that Allen, who was the only person who knew that an agreement had been made to extend the time of payment of the note, was not a competent witness, in the action at law. Section 2, chapter 51, of the Revised Statutes of 1874, page 488, expressly excludes a defendant from testifying in an action brought by an executor, like the one brought against Allen and Henderson. Resort to a court of equity was therefore a necessity,—the only tribunal where relief could be obtained. In Bradshaw, Admr. v. Combs, 102 Ill. 428, we held that a bill in equity was an appropriate remedy in a case of this character, and that the principal on the promissory note, on a bill filed against an administrator or executor by the surety, was a competent witness. As to complainant’s right to file the bill, and upon the question of the competency of Allen as a witness, the case cited is conclusive, and no further notice need be taken of that question.

The next question to be considered is, whether, after the note became due, the time of payment was extended by an agreement between the payee of the note and the principal maker, Allen, based upon a valid consideration, and the effect of such a contract. Allen testified that in the latter part of the year 1877 an agreement was made between him and Dodgson that the time of payment should be extended another year,—until November 6, following; that he agreed to keep the money for that time, and pay the interest promptly. We think the contract to extend the time of payment valid, and based upon a sufficient consideration. The effect of the transaction w'as this: About the end of the second year after the loan was made, Dodgson agreed to extend the time of payment one year if Allen would keep the money that time and pay ten per cent interest thereon promptly at the expiration of the time. The agreement to keep the money another year and pay the interest thereon, was a sufficient consideration for the promise of the payee to extend the time of payment. It may have been, and doubtless was, of great benefit to Dodgson to secure a loan another year at ten per cent interest. Had the money been paid in, a customer might not be found ready to borrow at so large a rate of interest, and hence the money might lie idle in the owner’s hands a whole year. But however that may be, there can be no doubt that the agreement to keep the money a whole year and pay a specified rate of interest, is a consideration which will support the agreement to extend the day of payment:

As to the effect of an agreement to extend the time of payment, upon the rights of the -surety, when made without his knowledge or consent, the law is well settled. As early as Davis v. The People, 1 Gilm. 409, this court held that if the creditor, by a valid and binding agreement, without the assent of the surety, gives further time for payment, to the principal, the surety is discharged, both at law and in equity, and it makes no difference whether the surety may be thereby actually damnified or not. The same doctrine was announced in Waters v. Simpson, 2 Gilm. 570, and in Crossman v. Wohlleben, 90 Ill. 537. The contract of a surety is one that should be construed strictly, and in no case can he be held liable beyond the terms and conditions of the contract to which he gave his assent; and any binding contract entered into between the principal debtor and the creditor, which works a substantial change in the original contract, when made without the consent of the surety, will release the surety. An agreement based upon a good consideration, and binding on the parties, produces this result. Such was the contract proven in this case.

We are therefore of opinion that the decree of the circuit court was correct, and the judgment of the Appellate Court will be affirmed.

Judgment affirmed.