text:
    George Irish et al. v. Antioch College et al.

      Filed at Mt.Vernon November 15, 1888.

    1. Deed oe trust—with power of sale—prescribing conditions—providing for a successor in trust. The grantors in a deed of trust to secure the payment of money may give the trust any shape they choose, and appoint not only a trustee, but a successor in trust, and prescribe the conditions upon which such successor shall take the place of the original trustee and execute the trust.
    2. Á. deed of trust given to secure the payment of money, with a power of sale in case of a default in payment, provided that upon the happening of either one of four events, viz.: First, the trustee’s death; second, his absence; third, his inability to act; or fourth, his refusal to act;—the title to the premises and the power of sale should become vested in a person named, as successor in trust: Held, that upon the refusal of the trustee first named to act, the latter trustee thereupon succeeded to all his rights and powers, and might lawfully execute the trust.
    3. Same—mode of procedure—as prescribed. In sales under deed of trust containing a power of sale, the forms and modes of procedure prescribed by the creator of the trust, must be strictly pursued.
    4. Same—notice of sale, and the deed—requisites. Where a deed of trust providing for a successor to the trustee in certain contingencies, contains no provision requiring the successor in trust to recite, in his notice of sale or deed, the circumstance which devolved the trust on him, the notice of sale by the successor need not recite such facts giving him the right to act, and if he undertakes to do so, a misrecital of the facts will not invalidate the sale made by him.
    5. Laches—as a defense to setting aside a trustee’s sale for mere irregularity. On bill to set aside a trustee’s sale, made under a power, for a mere irregularity which does not render the sale absolutely void, when the complainant, having full knowledge of the defective execution of the trust, lies by for over ten years, dining which time the property passes into the hands of bona fide purchasers, and large sums are expended by such purchasers in repairs and improvements, and the property has greatly enhanced in value, the delay of the complainant will constitute a bar to the relief sought.
    6. The rule is, that the owner of the equity of redemption must avail himself, in apt time, of irregularities in a sale under a power in a mortgage or deed of trust, and that a failure to do so will constitute laches. He is not allowed to lie by and await events, and have the power, at any time in the future, to let the sale stand or to avoid it, according as it may be found then for his interest to do. There should be promptitude of action within a reasonable time.
    Appeal from the Circuit Court of Cook county; the Hon. Lorin C. Collins, Judge, presiding.
    This is a bill to redeem. On the 10th day of October, 1872, George Irish, being the owner in fee of certain lots of land in Cook county, obtained from Artemas Carter, treasurer of Antioch College of Yellow Springs, Ohio, a loan of $7000, and to secure said loan said George Irish and Anna Irish, his wife, executed their bond, in the penal sum of $14,000, conditioned for the re-payment of said loan to said Carter on the 15th day of December, 1877, with interest thereon at the rate of ten percent per annum, payable semi-annually on the 15th day of June and December of each year. Said bond contained a proviso that if default should be made in the payment of any of the interest for twenty days after the same should become due, the principal sum, with all arrearages of interest, should, at the option of said Carter, at once become due and payable.
    To further secure the payment of said loan, said Irish and wife, on said 10th day of October, 1872, executed to Albert L. Coe, as trustee, a trust deed on the lots of land above mentioned, with power of sale in case of the non-payment of said money, principal or interest, when the same should become due, either by lapse of time or by the election of the legal holder of said bond. Said deed of trust also contained the following provision:
    “In ease of the death, absence, inability or refusal to act, of said party of the second part, then David B. Lyman, of the said city of Chicago, shall be, and he is hereby appointed and made successor in trust to said party of the second part under this deed, with like powers and authority, and said premises shall thereupon become vested in said successor in trust, for the uses and purposes aforesaid.”
    Irish made default in the payment of the installments of interest maturing June 15 and December 15, 1875, and Carter having elected to declare the principal sum due, Lyman, assuming to act as the successor in trust of Coe, advertised the premises described in the deed of trust for sale under said power, and on the 12th day of February, 1876, sold the same to Carter for $5000, he being the highest bidder therefor, and executed a trustee’s deed conveying the same to Carter. The recital in the notice of sale and in the trustee’s deed in relation to Lyman’s authority to act as Coe’s successor in trust was as follow's:
    “And whereas, it was in said trust deed provided that, in case of the absence from Cook county of said Albert L. Coe, then the undersigned David B. Lyman should act as successor in trust of said Coe, under said trust deed, with like powers and authority, and said premises described in said trust deed should thereupon become vested in the undersigned as said successor in trust, and whereas, said Albert L. Coe is absent from Cook county, and, -whereas, default has been made in the payment of the semi-annual interest due June 15, 1875,” etc.
    In the latter part of December, 1875, Coe left this State and went to New York, the occasion of his leaving being in part business and in part the health of his wife. Before going he stated that he should be absent for an indefinite and for quite a long period. He in fact returned to this State about March 1, 1876. Evidence was introduced at the hearing, however, tending to show that before going away, Coe refused to act as trustee. On this point Coe’s testimony is as follows : “When Mr. Carter applied to foreclose I declined to act. I told Mr. Carter I was on the point of leaving to be gone for some time, and would take him over and introduce him to Mr. Lyman, successor in trust. That I think was December 18, 1875. I went with him to Mr. Lyman’s office and introduced him, and they were brought together at that time. Mr. Lyman urged me to remain and urged me to act. I told him I declined to act; that I was going away and wanted to be out of it anyway, as it was a troublesome matter and had been for some months, and I was going away and Mr. Carter had made up his mind to have it foreclosed, and I brought him over for that purpose, and we came and he received his instructions from Mr. Carter.”
    Mr. Lyman, testifying as to what took place on the same occasion, says: “Mr. Coe stated that he could not act, and I asked him why. He stated for two or three reasons. One was, he didn’t wish to act, was unwilling to act. Another was, he was going away from the State and should be absent for an indefinite time. He couldn’t state how long he would be absent, but that he would be absent for quite a long period. I told him that the matter could remain over until his return. He said he didn’t know then when he would return, and that he was unwilling to act in the premises. Mr. Carter then asked me as successor in trust to act. I told him I could not do so until Mr. Coe left the county, left the State. He (Carter) stated at the time that he was tired out, worn out by Mr. Irish; that Mr. Irish tried to get .him to buy, but that he didn’t want anything more to do with him. When I asked him to perform the duties of trustee he stated that he would not act as trustee.” ,
    After Lyman had advertised the property' for sale, Irish applied to him for an adjournment of the sale for a few days, claiming that he then had a prospect of raising sufficient money to pay the accrued interest and costs. His request was granted and the sale adjourned, and on the day to which the adjournment was made, Irish not having succeeded in raising any money, the sale took place, Irish being present and raising no objection, so far as appears, to Lyman’s acting as trustee.
    On the 15th day of May, 1876, Carter brought his action of -forcible detainer before á justice of the peace against George Irish and Anna Irish to recover possession of the premises purchased by him at said trustee’s sale. Judgment was rendered in said suit in favor of the plaintiff, and the defendants appealed to the circuit court. While the cause was pending in the circuit court, Carter and George Irish entered into the following stipulation therein:
    “It is stipulated and agreed that the appeal in the above entitled cause shall be dismissed. It is further stipulated and agreed that the defendant shall surrender immediate possession of the south house on the premises in controversy, and that on or before May 1, 1877, the said defendant shall surrender the possession of the balance of said premises to the said plaintiff. It is further stipulated and agreed that, in case the said defendant shall on his part carry out all of the above stipulation in accordance with the terms thereof, on or before May 1, 1877, then the said plaintiff shall release the said defendant from all" claims arising from withholding possession of said property, from all costs of this suit, and from all claims arising from the balance of the indebtedness due from said defendant to the said plaintiff arising from said premises not having sold for the face of the principal and interest due on a certain bond given by said defendant to said plaintiff, secured by the trust deed given by said defendant, and which said trust deed was foreclosed and title of said ■plaintiff acquired thereunder, and that the bond given on appeal of this suit shall also thereupon be cancelled and surrendered.”
    In pursuance of said stipulation said appeal was dismissed, but said Irish not having surrendered possession of said premises as provided for in the stipulation, a writ of restitution was issued and possession delivered by the officer executing the writ some time in July, 1877. The possession of said premises was thereupon taken by Antioch College, Carter having in the meantime executed and recorded a declaration that he held the title thereto in trust for said college. Ever since July, 1877, the possession of said premises has been in said college and its grantees, and it is admitted that said college and its grantees have paid all taxes and assessments on said premises since the date of the trustee’s sale.
    On the 7th day of October, 1884, a portion of said premises was sold and conveyed by Antioch College to Anna Pilik, and on the 26th day of March, 1885, the residue was sold and conveyed by said college to James B. Galloway. Said Carter having died, proceedings were commenced by said college to recover the legal title from his heirs, and as the result of said proceedings a master’s deed was executed November 10,1885, conveying said legal title to said college. The evidence shows that said college, after obtaining possession of said premises, expended thereon by way of repairs and improvements, the sum of about $2900, and that the grantees of said college, after the conveyances to them and before the commencement of the present suit, expended by way of repairs and improvements, the one $1600 and the other $4500. On the 16th day of October, 1885, James B. Galloway, his wife joining with him, executed to Edward G. Mason a mortgage upon the portion of said premises conveyed to him by said college, to secure his note for $6000, dated that day, and due five years after date and bearing interest at the rate of six per cent per annum.
    The bill in this case was filed by George Irish alone on the 13th day of October, 1886. On the 26th day of January, 1887, an amended bill was filed in which both George Irish and Anna Irish appear as complainants. The bill makes Antioch College and the several persons claiming under said college as grantees, mortgagees or otherwise, parties defendant, and alleges the invalidity of the sale of said premises by Lyman, and prays for an accounting and to be permitted to redeem from said trust deed. The answers, among other things, assert the validity of said sale, allege the purchase of said premises by Pilik and Galloway in good faith and for a valuable consideration, and set up laches on the part of the complainants. Beplications being filed, the cause was heard on pleadings and proofs, and a decree rendered dismissing the bill at the complainants’ costs for want of equity, and the complainants have appealed to this court.
    Mr. B. M. Saunders, and Mr. Paul Brown, for the appellants :
    Lyman, under the facts, did not become the successor of Coe, the trustee, in the manner prescribed by the deed, and was devoid of all power, and the sale by him was void. Trust Co. v. Fisher, 106 Ill. 189; Life Ins. Co. v. White, 106 id. 67.
    A fair and reasonable construction of the language used in the trust deed would require a permanent absence, and not a mere casual or temporary absence. Ibid.
    The delay in filing this bill was owing to the ill-health of George Irish, caused by the harsh proceedings to which he had been subjected, and the fear of trouble resulting from any proceeding on his part.
    Messrs. Mason Bros., for the appellees Galloway and others:
    The absence from the State of the trustee, authorized the person named as successor to act.
    Appellees are protected under the seven years limitation law. Bev. Stat. chap. 83, sec. 6; Chickering v. Failes, 26 Ill. 508; Smith v. Ferguson, 91 id. 304; McGonnel v. Street, 17 id. 254.
    The good faith required by the statute in the creation or acquisition of color of title, is a freedom from a design to defraud the person having the better title. McCagg v. Heacock, 34 Ill. 476.
    The following cases hold that where a party has knowledge of the facts entitling him to equitable relief, and rests nearly seven years, his laches will bar his right to relief: Breit v. Yeaton, 101 Ill. 243; Miller v. Shaw, 103 id. 277.
    Four years’ delay is held a bar when property has been improved and increased in value. Hamilton v. Lubukee, 51 Ill. 415; Hoyt v. Pawtucket Institution, 110 id. 391; Bush v. Sherman, 80 id. 160; McHany v. Schenk, 88 id. 357.
    Acquiescence in a trustee’s sale is held a bar. Miller v. Shaw, 103 Ill. 277.
    Messrs. Pedrick & Dawson, and Mr. Jebemiah Leaming, for the appellees Antioch College, Lunt, and others:
    The decree should be affirmed, because the sale was made by the successor in trust, with the knowledge, at the time, of appellants, who set up no claim against said sale, but stood silently by for more than ten years after the sale.
    The sale by the successor in trust, and deed thereunder, made a colorable conveyance of the premises to the grantee, who took possession pursuant to said deed, and whose possession could only be disturbed by a decree setting the sale aside and allowing redemption.
    The act of sale by the successor in trust was not void per se, but required judicial action to set it aside; hence the doctrine of laches is strictly applicable to this case, and which doctrine is favored by this court. Hamilton v. Lubukee, 51 Ill. 415; Walsh v. Brennan, 52 id. 193; Munn v. Burgess, 70 id. 604; Bush v. Sherman, 80 id. 160; McHany v. Schenk, 88 id. 357; Hoyt v. Pawtucket Institution, 110 id. 390.
    The evidence conclusively shows that Coe refused to act, and therefore Lyman became vested with the power of sale on such refusal.
    The question of the occurrence of the contingency on which a successor in trust may act, is one of fact. If, in fact, a sufficient ground for such successor acting existed, then the recital of a different ground in the trustee’s deed is immaterial.
   Mr. Justice Bailey

delivered the opinion of the Court:

By the terms of the deed of trust the legal title to the premises conveyed, together with the power of sale thereby granted, was vested, in the first instance, in Coe, the trustee. But it was also provided that, upon the happening of either one of four events, viz., 1, Coe’s death, 2, his absence, 3, his inability to act, or 4, his refusal to act, said title and power should become vested in Lyman, as Coe’s successor in trust. The power of a person creating and declaring a trust of this character to give it any shape he may choose, and to appoint not only a trustee but a successor in trusj; and prescribe the conditions upon which such successor may take the place of the original trustee and execute the trust, is recognized and affirmed by the decision of this court in Equitable Trust Co. v. Fisher, 106 Ill. 189. Whether either of the prescribed eon-' ditions happened in the present case, so as to authorize Lyman to execute the power of sale, is a question of fact to be determined from the evidence.

During all the time Lyman was attempting to execute the power of sale, Coe was in fact absent from the State, but in view of the rule established by the decision above referred to, it may be doubtful whether his absence was of such a permanent character as was contemplated by the language of the deed of trust. But whether this be so or not, the evidence clearly establishes a refusal on the part of Coe to act as trustee. Both he and Lyman testify that when applied to by Carter, the legal holder of the bond and deed of trust, to execute the power of sale, he declined to act, placing his refusal partly upon the ground of his anticipated absence from the State, and partly upon another ground which he deemed sufficient-His refusal was absolute. When asked to perform the duties, of his trust he stated that he would not act as trustee. It was competent for him to refuse to act if he saw fit, and it was doubtless in view, among other things, of such possible refusal^ that provision was made for a successor in trust. Upon such refusal, the legal title to the land conveyed by the deed of trust, as well as the power of sale created by said deed, passed, by operation of the power of appointment already exercised by the creator of the trust, to aind became vested in Lyman, as successor in trust.

But it is urged that the sale by Lyman can not be sustained because, in the notice of sale as well as in the trustee’s deed, he based his right to act as trustee upon Coe’s absence and not upon his refusal to act. It is clear that this mis-recital, if material at all, has no bearing whatever upon the question of Lyman’s power to act, but only goes to the regularity of the mode in which the trust was executed. It is doubtless the rule that in the execution of trusts of this character, the forms and mode of procedure prescribed by the creator of the trust must be strictly pursued. But it should be observed that the deed of trust in this case contained no provision requiring the successor in trust to recite in his notice of sale the circumstances which devolved the execution of the trust upon him. If the notice had been entirely silent on that subject, we can not see that it would have been defective for that reason. An incorrect recital, then, so long as it pertained to a matter wholly outside of and beyond anything required by the terms of the deed of trust, was immaterial, unless it can be seen that it was of such a character as would have some probable tendency to prejudice the interests of the owners' of the equity of redemption. We are unable to perceive how the recital in question could have had such tendency, and are therefore disposed to hold that the validity of the sale was in no way impaired or affected by it.

But there is another ground upon which the complainants were properly denied the relief prayed for in their bill. The sale took place on the 12th day of February, 1876, and the original bill was not filed until October 13, 1886, ten years and eight months after the sale, and ninó years and three months after the complainants had been put out of possession by the execution of a writ of restitution issued on a judgment against them in an action of forcible detainer. The defect in the execution of the power of sale, if it was a defect, was a mere irregularity, and not of a character to render the sale absolutely void. George Irish, the principal complainant, was present at the sale, and well advised at the time of all the facts of which he now seeks to avail himself as a ground for vacating the sale. During the interval between the sale and the filing of the bill the property in question became largely enhanced in value. Large sums of money had been expended upon it both by Antioch College and its grantees by way of repairs and improvements. The rights of purchasers and mortgagees had intervened. No excuse for the delay on the part of the complainants in asserting their rights is made or attempted except their inability to redeem for want of means. - No fraud or improper conduct on the part of the trustee, the purchaser or the parties claiming under the purchase is alleged, the only ground upon which the sale is attacked being the alleged irregularity above mentioned.

The rule is, that the owner of the equity of redemption should avail himself in apt time of irregularities in a sale under a power of sale in a mortgage or deed of trust, and that his failure to do so will constitute laches. It is not permissible for him to lie by and await events, and have the power, at any time in the future, to let the sale stand, or to avoid it, according as it may be found then for his interest to do. There should be promptitude of action within a reasonable time. Hamilton v. Lubukee, 51 Ill. 415; Dempster v. West, 69 id. 613; Maher v. Farwell, 97 id. 56; Bush v. Sherman, 80 id. 160; Hoyt v. Pawtucket Institution for Savings, 110 id. 390; McHany v. Schenk, 88 id. 357.

Under the circumstances of this case, the laches of the complainants in failing to file their bill to redeem in apt time is sufficient to bar their right to relief in equity. The decision of the court below is the only proper conclusion to be drawn1 from the pleadings and evidence, and the decree will therefore be affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Magbudeb

license: Public Domain

text:
    Kaspar G. Schmidt v. Louise S. Glade.

      Filed at Ottawa November 15, 1888.

    1. Action—contract—liability of grantee in deed poll. Where a party accepts a deed poll requiring him to pay a sum of money, he will be liable, in an action of assumpsit, to pay the liability therein mentioned.
    2. On bill by the executor of a deceased partner to settle the partnership matters, it was agreed by the parties that the value of the firm assets should be ascertained by arbitrators appointed, deducting there-frorn the firm liabilities and the services of the surviving partner, and that the latter should pay the executrix one-half of such appraisal, and she was to convey and assign to him all the firm assets, subject to the payment of the firm debts, which the surviving partner was to assume and pay,—and this was made a matter of record by the decree. The latter paid one-half the appraisal, and received a deed and bill of sale of the firm property, which recited he was to pay the debts of the firm. The firm books showed an indebtedness of the firm to the deceased partner of $1800: Held, that the surviving partner was liable in assumpsit to the executrix for the amount of such indebtedness, and that the award and decree were not a bar to an action by her for its recovery.
    3. Where a bill for an accounting between partners leads to an agreement that the complainant is to sell to the .defendant the partnership effects, upon payment of one-half its appraised value, less the debts of the firm, including debts to the partners, and the compensation to the defendant for closing the business as receiver, who is to assume and pay the firm debts, and he pays the complainant one-half the value of the property after deducting such indebtedness and his compensation, and the complainant gives him a deed for the property, under the decree of the court, based on such agreement, which expressly provides that he is to pay the debts of the firm, he will be liable to the complainant for any sum the firm may owe the latter, in an action of assumpsit. His obligation to pay will rest upon and grow out of the agreement in the deed to him, although he may not have executed the same.
    4. Abbitbation and awabD'—evidence of arbitrators to impeach their own award. Where arbitrators recite in their award that they have disposed of a matter submitted to their arbitrament, in the manner required by the agreement for submission, it can not be shown by parol evidence of the arbitrators, that they disposed of such matter in another and different manner.

      5. A surviving partner agreed to purchase the firm property for half its appraised value, less the firm liabilities and the compensation for his services as receiver and manager after the death of his co-partner, and arbitrators were selected to appraise the property. The arbitrators in their award recited that they appraised and found the entire value of the property in the hands of the survivor, as purchaser thereof, at $161,245.94, “after deducting all the liabilities of said firm, and also deducting the compensation due S. for his services as manager and receiver.” In a suit by the executor of the deceased partner for the amount due him from the firm, the surviving partner, S., offered to prove by two of the arbitrators, that they offset the claim sued on, against the defendant’s services as manager and receiver: Held, that to admit such evidence would be to permit the arbitrators to impeach their award, which could not be done.
    6. Same—award—how far conclusive. "Where arbitrators do- not go beyond the terms of the reference, and there is no fraud or mistake, the award is conclusive upon the parties.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gaey, Judge, presiding.
    Mr. Wm. Vocee, and Mr. Haevey Stoboe, for the appellant:
    Appellee was hound to present and litigate her entire claim in the chancery suit. 2 Taylor on Evidence, sec. 1513; Camp v. Morgan, 21 Ill. 255; Casselberry v. Forquer, 27 id. 170; Aurora City v. West, 7 Wall. 82; Goodrich v. Gale, 8 Allen, 454.
    The court erred in refusing to allow the arbitrators to testify that appellee’s claim was set off by them against appellant’s compensation. Morse on Arbitration, 570; Spurck v. Crook, 19 Ill. 425; Hale v. Huse, 10 Gray, 99.
    Messrs. Smith & Pence, for the appellee:
    Appellant’s duty to pay the debt of the firm arose under the deed poll to him, which was made after the award and decree.
    If a partner overdraws his account, he owes the firm, and .if he contributes more than his share, the firm owes him. Jones v. Bliss, 45 Ill. 144; Wiggins v. Cummings, 8 Allen, 353.
    When appellant agreed with appellee, in consideration of the sale to him of all her interest in the assets, to pay all the liabilities, he became liable at law. Covert v. Howard, 9 Mass. 303; Parsons on Partnership, 282, notes, 283, note g.
    The decree is not final upon the parties except as to the very matters submitted to arbitration, and this claim was not •submitted.
    Arbitrators are not competent witnesses to impeach their •own award or to prove their own misconduct. Bigelow v. Maynard, 4 Cush. 317; Stone v. Atwood, 28 Ill. 30; Claycomb v. Butler, 36 id. 100; Denman v. Bayless, 22 id. 302; 1 Greenleaf on Evidence, sec. 249.
   Mr. Justice Magbudeb

delivered the opinion of the Court:

This is an action of assumpsit, brought in the Superior Court of Cook County by Louise S. Glade, as executrix of the estate of Herman 0. Glade, deceased, a partner, in his lifetime, of Kaspar G. Schmidt, under the firm name of Schmidt & Glade, to recover from Schmidt $1881.93 due the deceased from said firm, on the ground that Schmidt, after the death of Glade, assumed and agreed to pay the same.

February 12, 1882, Glade died testate, leaving all his estate to his widow, the appellee herein. He was, at the time of his •death, and, for .some time prior thereto, had been, engaged in the business of manufacturing and selling beer, as a member •of said firm, composed of himself and appellant.

On June 30, 1882, appellee, as executrix and sole devisee, filed a bill in the Circuit Court of Cook County against appellant, claiming to be entitled to one half of the assets of the firm, and praying for a winding up of the partnership affairs, the appointment of a receiver, the collection and sale of the assets, the payment of the debts, the distribution of the surplus, etc. No answer to this bill was filed by Schmidt. He ' was appointed receiver; and the chancery suit was disposed of by a stipulation in writing between him and Mrs. Glade, and by such proceedings as were based upon and grew out of this stipulation. -

By the terms of the stipulation it was agreed, that the court should enter a decree of sale of all the property, real and'personal, of the firm, and of the brewery business and the good will thereof, except the doubtful and desperate accounts, to Schmidt, subject to all the outstanding liabilities and obligations of the firm, upon his payment of one half of the sum to be fixed as the value thereof by three arbitrators to be selected, one by each of the parties and one by the court. The stipulation prescribed the form of the report or award to be made by the arbitrators, and laid down certain rules by which they were to be governed in ascertaining the value of the assets. It also provided, that, in the decree of sale to be entered upon the coming in of the report, appellee should be required, upon payment by appellant of one half of the sum so reported, to execute a conveyance to him of said property and assets, and that such conveyance should be in full for all the right, title and interest of Glade deceased in and to the' real estate and personal property, rights, credits and choses in action of the late firm, except the doubtful accounts, it being distinctly stated that the sale to him should be “subject to the payment of all the liabilities of the firm of Schmidt & Glade.”

The arbitrators, in accordance with the form prescribed for them, made the following report of their appraisement:

“We, the undersigned arbitrators, hereby appraise and find the entire value of the brewery business, real and personal property and assets of the late firm of Schmidt & Glade, on August 21, 1882, inclusive of the good-will of said business in the hands of Raspar G. Schmidt as a purchaser thereof, at the sum of one hundred and sixty-one thousand, two hundred and forty-five dollars and ninety-four one-hundredths ($161,-245:94), after deducting all the liabilities of said firm, and also deducting the compensation of said Schmidt for his services as manager and receiver as aforesaid.
(Signed) John Good,
Mattheus Gottfbied,
Michael Reeley.”

This appraisement was filed in court, and a decree was thereupon entered, ordering a sale of the property, business and assets to Schmidt, “subject to all mortgages, trust deeds, liens, etc., and to all liabilities of the firm, all of which liens, etc., and liabilities he, the said Schmidt, assumes and agrees to pay, ” and further ordering, that appellee execute to him the conveyance and bill of sale aforesaid, “providing therein * * * that said Schmidt shall assume and agree to pay * * * all the liabilities of the late firm of Schmidt & Glade.”

Schmidt paid Mrs. Glade $80,622.97, being one half of the sum named in the award, and she executed to him the deed and bill of sale, in both of which it was recited that the same were “subject to all the liabilities of the late firm of Schmidt & Glade, all of which liens, encumbrances and liabilities said Schmidt hereby assumes and agrees to pay.”

The "rules, prescribed by the stipulation for the guidance of the arbitrators, required them, in determining the valuation aforesaid, to deduct all the liabilities of the firm, and to ascertain those liabilities from the balance sheets taken when the books should be closed by them and at the time of their appraisement of the stock on hand, etc. Under these rules, the individual accounts of Schmidt and Glade respectively were to be ascertained from the books, and “the accounts'due by or from them respectively” were to be “treated as the accounts of strangers.” In taking said account, the arbitrators were authorized to allow Schmidt such compensation as they might deem jusi and reasonable for his services, as the manager of the business since the death of Glade, and as receiver under the order of the court.

The facts above recited are set forth in the declaration in the case at bar. A jury was waived by agreement and the cause submitted to the court for trial, resulting in judgment in favor of the plaintiff for $2469.00. This judgment has been affirmed by the Appellate Court and is brought before us by appeal from the latter court.

The first question arising upon the record is, whether the action of assumpsit is the proper remedy to be pursued under the facts thus stated.

•Upon the trial the following admission was made by the defendant: “It is admitted by the defendant, that, at the time of the closing of the business of the late firm of Schmidt & Glade by arbitration, the books showed a balance in favor of said Herman 0. Glade, deceased, due from said firm, amounting to $1881.93.” Therefore, the indebtedness sued for in this action was one of the liabilities of the firm. By the terms of the stipulation and of the decree of sale and of the deed and bill of sale aforesaid, the appellant agreed to assume and pay the liabilities of the firm. It is only necessary to consider the terms of the deed conveying the real estate of the firm to appellant and executed by appellee in obedience to the decree above mentioned. • This deed recites, that it is subject to the incumbrances on the property and to the liabilities of the firm, and that the party of the second part thereto, who is the appellant in this case, assumes and agrees to pay such incumbrances and liabilities. The deed was delivered to appellant and accepted by him. The law is, that, where such a deed poll is accepted by the grantee, he is liable in an action of assumpsit to pay the liabilities therein mentioned. Guild v. Leonard, 18 Pick. 511; Goodwin et al. v. Gilbert et al. 9 Mass. 510; Dean v. Walker, 107 Ill. 540.

Appellant undertook to pay all the debts of the co-partnership to whomsoever due. Appellee, as executrix; and sole devisee of the deceased co-partner, could as well be a creditor of the firm as a stranger, and, if she was, the appellant agreed to pay her. (Hobart v. Howard, 9 Mass. 304.)

We, therefore, think that assumpsit will lie in this case.

The second question is, whether the present cause of action was embraced in the chancery proceeding and there adjudicated upon, and whether the arbitration, which there took place, is a bar to the proceeding in this case. We do not think that the decree in the chancery cause was a final adjudication upon the claim of $1881.93.

The arbitration was more for the purpose of establishing the value of the firm assets, which Schmidt was to buy, than for the purpose of settling the partnership affairs. This is shown by the language of the award. In ascertaining the value of the assets the arbitrators deducted all the liabilities of the firm, including the claim here sued upon. By so doing, the value was lessened, and the amount to be paid by appellant was reduced. They were directed to treat the accounts between the partners and the firm as the accounts of strangers. Hence, the indebtedness to Glade was to be considered as much a liability of the firm as the claim of any other creditor. The liabilities' of the firm were taken out and set aside for future arrangement between the creditors and Schmidt. The chancery proceeding led up to and ended in an agreement by. Schmidt to pay the liabilities of the firm. This agreement was contained in a deed made and accepted after the final decree in the chancery suit was entered. The obligation of appellant to pay the present claim rests upon and grows out of the agreement in the deed. Hence the chancery proceeding can not be regarded as a bar to recovery in the present action.

The third question has reference to the refusal of the trial court to allow the defendant below to introduce certain testimony offered by him. He offered to prove by two of the arbitrators, that they offset the claim sued upon in this action against the services of appellant as manager and receiver, and that thereby appellee’s claim for $1881.93 is paid. There was no error in rejecting the offer so made.

By the stipulation between the parties in the chancery suit, the arbitrators were to allow Schmidt a reasonable compensation for his services as manager and receiver, and, by the form of report or award prescribed for the arbitrators in the stipulation, they were to deduct the amount of this compensation in ascertaining the value of the assets. They made their award in pursuance of the terms of the stipulation and adopted the form of report therein specified. Thq award shows on its face, that, in ascertaining the value of the assets; they deducted Schmidt’s compensation as receiver and manager. By so doing, they reduced the amount he was to pay for the assets and compelled the estate of Glade to contribute towards the payment of his compensation. The award was acted upon by the parties, Schmidt paying appellee; one half the amount of the appraisement therein reported.

To allow two of the arbitrators to testify, that they disposed of the matter of his eofnpensation in another manner than that stated in the award, would be to permit them to impeach their own award. This can not be done. (Denman v. Bayless, 22 Ill. 302; Stone v. Atwood, 28 id. 30; Claycomb v. Butler, 36 id. 100.) Where the arbitrators do not go beyond the terms of the reference, and there is no fraud or mistake, the award is conclusive upon the parties. (Kimball v. Walker, 30 Ill. 482; Hadaway v. Kelly, 78 id. 286.) And where the arbitrators recite in their award that they disposed of a matter, entrusted to their consideration, in the manner required by the agreement for submission, it can not be shown by parol evidence, that they disposed of such matter in another and different manner. Moreover, the fourteenth clause of the stipulation above referred to provides that “neither party shall be permitted to question the result of said report” of the arbitrators.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.

Mr. Justice Bailey, having heard this case in the Appellate Court, took no part in this decision.


author: • Mr. Justice Baker

text:
    The Firemen’s Insurance Company v. Charles E. Peck.

      Filed at Ottawa November 15, 1888.

    1. Bill oe exceptions—what it must contain, m order that proceedings may become matter of record. If a party desires to have the finding ■of the trial court on the evidence, and its refusal of a new trial, considered by an appellate court, he must, by bill of exceptions, show the motion for a new trial, its refusal by the court, and exception to the ruling. It is not sufficient that the transcript of the record, as made by the clerk, shows such motion, its disposition, and an exception.
    2. Witness—competency—party to suit. In an action on the case against a corporation, by the assignee and holder of shares of stock in such corporation, for its refusal to transfer to him such stock upon its books, the plaintiff is a competent witness in his own behalf. The fact that the original holder and endorser of the certificate of stock ■was dead, or the fact that the person who transferred the certificate, endorsed in blank, to the plaintiff, was dead, would not render the plaintiff incompetent to testify. In such case, the controversy or litigation is not with the representatives of the prior holders of the stock.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Lorin C. Collins, Judge, presiding.
    Mr. Edward Eoby, for the appellant,
    contended, that on the motion for a new trial, (the order overruling the same and the exception to the ruling appearing in the record itself,) a bill of exceptions was not necessary in order to question the propriety of the ruling in the trial court on the motion,—citing in support of his position, Bouvier’s Law Die. title “Exceptions;” Eaymond on Bill of Exceptions, 1-10; Randolph v. Emerick, 13 Ill. 345; Ferry Co. v. People, 101 id. 448; Suydam v. Williamson, 20 How. 423; Burnett v. Butterworth, 11 id. 669; Slocum v. Turnery, 6 Cranch, 221; Doiuning v. Baldwin, 1 S. & R. 299; Murdock v. Herndon, 4 H. & M. (Va.) 206; Metcalf v. Fouts, 27 Ill. 114; Jones v. Buffum, 50 id. 279.

      Mr. William C. Wilson, and Mr. David L. Zook, for the appellee.
   • Mr. Justice Baker

delivered the opinion of the Court:

Appellee prosecuted this action on the case against the appellant corporation, in the Cook circuit court, for the refusal of the latter to transfer to him, or permit to be so transferred, on the books of the company, thirty shares of the capital stock of the company, and recovered a judgment for $5100 damages, which judgment was afterward affirmed in the Appellate Court for the First District.

The case was tried before the circuit court without a jury. The transcript of the record, as made by the clerk of that court, recites that a motion for a new trial was made by the defendant, and overruled by the court, to which ruling the defendant excepted, and that thereupon the court rendered judgment and awarded execution; and also contains the further statement, “to all of which the said defendant, by its attorney, now here excepts.” The Appellate Court held, that as it did not appear from the bill of exceptions that appellant either excepted to the finding of the trial court, or made a motion for a new trial, and saved an exception to the decision of the court overruling the same, he was precluded from challenging, in the Appellate Court, the sufficiency of the evidence to support the finding, and therefore declined to consider the assignments of error in that behalf. It is now assigned as error in this court, upon the record made in the Appellate Court, that the latter court erred in refusing to consider the sufficiency of the evidence to sustain the finding, and in holding that there was no available error in the record, because it did not appear, by bill of exceptions, that exception was taken to the finding of the court, or that a motion for a new trial was made.

The rule announced by the Appellate Court is the settled law of this State, as determined in a long line of decisions. Vanderbilt v. Johnson, 3 Scam. 48; Dickhut v. Duirell, 11 Ill. 72; Boyle v. Levings, 28 id. 314; Daniels v. Shields, 38 id. 197; Gill v. People, 42 id. 321; Jones v. Buffum, 50 id. 277; Drew v. Beall, 62 id. 164; Nason v. Letz, 73 id. 371; Reichwald v. Gaylord, 73 id. 503; Force Manf. Co. v. Horton, 74 id. 310; Knott v. Swannell, 91 id. 25; James v. Dexter, 113 id. 654; Martin v. Foulke, 114 id. 206; Graham v. People, 115 id. 566; Wolf v. Campbell, 23 Bradw. 482, and numerous other cases.

We are strenuously urged by counsel for appellant, in very able and elaborate briefs and arguments, to change the rule so long established by the decisions of the court, and hold that if the proper motion's and exceptions appear in the judgment order or order allowing an appeal, as made up by the clerk and certified by him, then it is not essential they should appear in the bill of exceptions signed and sealed by the judge. Were the question an open one, we might be inclined so to hold; but the rule now objected to is a settled rule of practice in this State, and has been announced and followed for so long a time and in so many cases, that it ought not to be departed from, and we must therefore decline to enter into a discussion as to its propriety. The rule, as held, is familiar to the profession and is easily understood, and there is no difficulty or hardship in conforming to its requirements.

No propositions of law were, at the trial, submitted to the court, and the only other question that is before us, is in respect to the decision of the trial court that appellee was a competent witness in his own behalf. The common law disqualification on account of interest in the result of the litigation being removed by the statute, he was clearly a competent witness in this suit against appellant. The latter was not defending the suit in any of the fiduciary capacities specified in section 2 of the Statute of Evidence and Depositions. The fact the original holder and endorser of the certificate of stock was dead, or the fact that the person who transferred the eertifieate, endorsed in blank, to appellee, was dead, did not render appellee incompetent to testify in this litigation, where the controversy was not with the representative of either of such deceased persons. There was no error in the ruling.of the circuit court.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Per Curiam

text:
    The Village of Melrose v. Daniel E. Bernard.

      Filed at Ottawa November 15, 1888.

    1. Transcript of record—clerk’s certificate—of its proper office and scope. The clerk of a court is authorized to certify, under his seal of office, to the record as it appears in his office; but when he undertakes to designate what portion of the record pertains to any particular issue, or to determine whatpart of the record relates to any particular matter adjudicated by the court, he acts without authority of law.
    2. Bren of exceptions—when necessary—presumption in support of judgment below. On appeal or error, it will be presumed that the lower court proceeded regularly and in conformity with law, until the contrary is made to appear by the record.
    3. So an assignment of error upon a ruling of the county court refusing judgment for the amount of a special tax, and reducing the amount claimed, will not be considered in the absence of a bill of exceptions showing the evidence heard. In such case it will be presumed the court acted properly. .
    Appeal from the County Court of Cook county; the Hon. Bichard Prendergast, Judge, presiding.
    Messrs. Vallette & Griffin, for the appellant.
    Mr. Daniel E. Bernard, pro se.

   Per Curiam

: This was an application hy the county treasurer and ex officio collector of taxes of Cook county, to the county court of that county, for judgment for a special tax, assumed to be levied by virtue of an ordinance of the village of Melrose, in said county, against the lot of appellee, and claimed to be delinquent. Numerous objections to the entering of judgment were filed by the lot owners, and, on hearing, the court rendered judgment against the lot for one-half of the special tax returned delinquent against said lot, and refused judgment for the other half. The village appealed to this court.

It is urged that the court erred in “dividing said special tax, and sustaining objections to one-half thereof,” and in refusing to enter judgment therefor. This record is in no condition to present the question sought to be raised by counsel. What purports to be the record filed in this court, recites that there was, on a certain day, filed in the office of the county clerk of Cook county, “a certificate of publication of the delinquent tax list of said county, a portion of which publication is as follows, to-wit:” Then follows what purports to be a copy of a part of said certificate. In the same manner is copied what purports to be a portion of the application of the county treasurer for judgment. Then appears the order of court for a rule to file objections, etc. The objections of appellee are set out, and the final judgment of the court for $19.30,—one-half of the special tax claimed,—and refusing judgment for the residue. It is true, the clerk certifies that the record is complete in the matter of the application of the - treasurer “for judgment and sale for delinquent taxes on warrant No. 47 of the village of Melrose, in said county, for a wooden sidewalk on the south side of the Elgin road, from the west side of Ninth street to Twenty-fourth avenue, in said village of Melrose.” The clerk is wholly without authority to make such certificate. He is authorized to certify, under his seal of office, to the record, as it appears in his office; but when he undertakes, as here, to designate what portion of the record pertains to any particular issue, or to determine what part of the record relates to any particular matter adjudicated by the court, he acts without authority of law. The determination of these questions is necessarily judicial in its character. (Hake v. Strubel, 121 Ill. 321.) The presumption is, that the court proceeded regularly, and in conformity with law, until the contrary is made to affirmatively appear by the record.

It is manifest, conceding that the matter contained in this record is properly before the court without being incorporated in a bill of exceptions, that it does not affirmatively appear that the parts of the files omitted by the clerk did not fully authorize the judgment of the court.

But if this was not correct, the judgment must nevertheless be affirmed. There is no bill of exceptions in the record, and, it does not appear that error has been committed by the trial court of which appellant could be heard to complain. It is said, however, no bill of exceptions is necessary, for the reason that the county court is powerless to correct the assessment, or to render judgment for less than the whole tax. No such question is necessarily presented by the record. For aught we can tell, the ordinance levying the tax, or the report of the clerk to the treasurer, provided for by section 4 of the act of 1875, (Starr & Curtis, p. 542, par. 308,) may have been introduced in evidence, as it was clearly competent to do, as showing the authority of the treasurer in applying for such judgment,—showing a levy against appellee’s lot, of the exact amount, less costs, for which judgment was rendered; or it may have appeared that one-half of the tax had been paid by the owner. In either event there would be no error prejudicial to appellant, or of which it could be heard to complain. The presumption in favor of the regularity of proceedings in courts of justice must obtain until it is overcome, by showing that error has been committed.

There is no error apparent by this record, and the judgment of the county court will be affirmed.

, Judgment affirmed.


author: Mr. Chief Justice Sheldon

text:
    The First National Bank of Chicago v. Seth F. Hanchett.

      Filed at Ottawa May 9, 1888.

    1. Attachment—of moneys of the debtor coming to the hands of the officer. On a writ of attachment against a warehouse company, the sheriff levied upon goods of other parties stored in the warehouse, or the interest of the company in the property in store. By direction of the plaintiff in the writ, the officer released the property so stored, upon payment, by the owners, of the charges thereon which they owed the company: Meld, that, even conceding the sheriff had no right to levy on the property, it was his duty to have levied upon the money so paid him, or have treated the same as attached, money and credits of the debtor being subject to attachment.
    2. Same—moneys coming to officer’s hands, subject to levy wider writ held by him—ckity amd liability of the officer. Where a sheriff holding a writ of attachment against a warehouse company, which he has levied upon the interest of the company in grain stored with it, by direction of the plaintiff in the writ releases the property to the owners upon their payment to him of the charges due thereon to the company, and before the return day of the writ, upon the written order of the company, pays .the money so received by him for charges, to the company, by reason of which the debt due the attaching creditor is not fully-paid, an action on the ease will lie by the attaching creditor against the sheriff for the amount of such money.
    3. In such case, the order of the warehouse company on the sheriff for the moneys received by him for storage, is an admission by the company that the money in the sheriff’s hands is its property, and would authorize a levy upon the same, and would be a waiver of any supposed trespass of the sheriff in attaching the grain stored. And if the sheriff had doubts as to whether the attaching creditor was entitled to the money, he should have brought the same into court to abide its order and judgment.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.

      This was an action on the case, against Seth F. Ilanchett, sheriff, for misconduct and negligence in and about the service of a writ of attachment in plaintiff’s favor. The first count avers, that after attaching-a large amount of personal property on the writ of attachment in his hands, the sheriff wrongfully surrendered the same, and returned falsely that he had done so by the authority of the plaintiff. The second count differs from the first only in omitting the averment of false return. The third count avers, that there was a large amount of personal property of the defendant in the attachment, of which the sheriff had knowledge, which he might and should have attached, but which he negligently and wrongfully omitted and refused to attach, etc. The plea was the general issue. A jury was waived, and the case was tried in the Superior Court of Cook county, upon an agreed statement of facts.
    It appears from the stipulation of facts, that at the time of the delivery of the writ of attachment, the Garden City Warehouse Company, the defendant therein, and a corporation organized under the laws of this State, was doing a general warehouse and storage business in the city of Chicago; that it had in its warehouse a large quantity of chattels, a small part of which it owned, but much the greater part of which it held merely as bailee, in the ordinary course of its business; that the deputy sheriff levied the writ of attachment on all the right and interest of the warehouse company in and to all of said goods and chattels, and in and to the warehouse. At the time of this levy, the deputy sheriff was notified and instructed by the plaintiff’s attorney that a large but unknown quantity of the goods belonged to parties other than the warehouse company, but that the levy was to be made on all of them nevertheless, because the defendant warehouse company had an interest in or lien on the stored property for the storage thereof, and for loans and advances made thereon, and that after the levy, whenever third parties should prove their ownership of any of the property, and should pay the sheriff the storage charges and the loans, the levy should he released, and the storage and other money so received should be held by the sheriff in the place and stead of the property so released ; that the deputy sheriff so proceeded until he had so collected and received as storage on property so levied on, and had released under said instructions, the sum of $4008.60. Of this amount, $3648.90 was so received prior to the return day of the writ of attachment, which was May 5, 1884, and before the same was, in fact, returned. Of this amount of $3648.90, the sheriff appropriated to costs and expenses under and on account of the writ of attachment, the sum of $865.47, the propriety of which appropriation is not questioned in this action; .and the remainder, being the sum of $2783.43, the sheriff, on the first day of May, 1884, without the consent or knowledge of the plaintiff, and upon the order of the defendant in the attachment, paid to a party claiming to be a creditor of the warehouse company, but having no special claim to said moneys except such as was conferred by said order of said defendant,—which payment, if not justified by the law upon the facts stated, deprived the plaintiff in the attachment of the benefit of his attachment to said amount of $2783.43; that judgment was recovered in the attachment suit at the June term, 1884, for $10,075, and costs of suit, and for the purposes of this suit it is agreed that more than said amount of $2783.43 remains due and unpaid after applying all other moneys which have 'been or may be realized from the attachment. The levy on the warehouse, but not the levy on the contents thereof, was, on April 23,1884, released by the sheriff by direction of the plaintiff, and, at the time, the sheriff had received only $3199.07 of the whole amount of $4008.60 collected by him as storage, as aforesaid.
    In the Superior Court the plaintiff recovered judgment for $2783.43, which, on appeal to the Appellate Court for the First District, was reversed, the cause being then remanded to the Superior Court, with instructions to enter a judgment in favor of defendant for costs. This appeal-is from the judgment of the Appellate Court.
    Mr. Orville Peokham, for the appellant:
    The interest of a warehouseman in goods stored with him, may be subjected to his debts by attachment. Cushman v. Hayes, 46 Ill. 145; Urguehart v. McIver, 4 Johns. 103.
    When the special property of a warehouseman has been attached, and the general owner of the goods pays to the sheriff the warehouseman’s storage to release the goods, the lien of the attachment is, by operation of law, transferred to the money into which the warehouseman’s special property has thus been converted. Wheeler v. Smith, 11 Barb. 345.
    Even if a warehouseman’s interest in the goods stored with him is not attachable, yet in this case the storage money which came into the sheriff’s hands during the life of the writ was property of the defendant in the writ, which was subject to attachment.
    This is true, of money obtained on execution beyond the amount of the debt for which the execution was levied. Pierce v. Carlton, 12 Ill. 358; Tucker v. Atkinson, 1 Humph. 300; Holmes v. Newcaster, 12 Johns. 395; Wheeler v. Smith, 11 Barb. 345.
    The sheriff has no right, of his own motion, to divert from the purposes of the attachment, moneys thus received, on the pretext that they came into his hands in cdnsequence of action on his part which was not lawful. Graydon v. Stone, 1 Edmonds’ Select Cases, 221; People v. Dunning, 1 Wend. 16; Walden v. Davison, 15 id. 575; Bybee v. Ashby, 2 Gilm. 151.
    Under the facts, the sheriff should be held to have levied, in fact, upon this money, due regard being had to what, in substance, a levy is, whatever mere formality may have been omitted. If, however, there was no actual levy on the money, the sheriff might, and should, have made one, and he is liable to the plaintiff for not having done so.

      Messrs. Campbell & Custer, for the appellee:
    A lien is not the subject of sale, and therefore can not be taken in execution. Leg v. Evans, 6 M. & W. 36; Harding v. Stevenson, 6 H. & J. 264; Kittridge v. Sumner, 11 Pick. 50.
    The interest of a mortgagee before foreclosure or entry is not liable to levy and sale. Blanchard v. Colburn, 16 Mass. 346; King v. Cushman, 41 Ill. 31.
    The lien of a warehouseman is the same as that of a carrier or artisan. Low v. Martin, 18 Ill. 286.
    Although appellee, as sheriff, did levy upon chattels held by the Garden City Warehouse Company as bailee, and did collect storage charges due thereon to the warehouse company, yet the money so collected was not thereby attached, nor was it then subject to attachment as the property of the Garden City Warehouse Company. Carroll v. Cone, 40 Barb. 220; Maxwell v. McGee, 12 Cush. 137; Dubois v. Dubois, 6 Cow. 494.
    If' the money so collected was then subject to attachment, appellee was not, in law, bound to attach it, for the reason that he was not directed so to do, but was specifically directed how to execute the writ. It was not his duty to execute it in any other manner. Gowdry v. Smith, 50 Vt. 235; Ordway v. Bacon, 14 id. 378; Levy v. McDowell, 45 Texas, 220.
    If the money so collected was not then subject to attachment, appellee was bound to pay it' over on the order of the Garden City Warehouse Company, or, at least, the payment by him was justifiable. Carroll v. Cone, 40 Barb. 220.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

Two questions are made upon the record in- this case: First, whether the sheriff could lawfully levy upon chattels held by the Garden City Warehouse Company as bailee, for the purpose of attaching the lien or interest which the company had in the chattels for storage charges; second, although such levy could not lawfully be made, yet as the sheriff did make the levy and did collect the storage charges on the property, whether the money so collected was not thereby attached, or was not then subject to attachment as the property of the Garden City Warehouse Company.

We shall pass by the first question without consideration, for conceding that the goods stored in the warehouse were not subject to attachment for the debts of the warehouse company, we are of opinion that there was a dereliction of official duty on the part of the sheriff with respect to the money for storage charges which came into his hands. The statute directs that the officer shall execute the writ of attachment upon the lands, tenements, goods, chattels, rights, credits, moneys and effects of the debtor. These storage charges were credits of the attachment debtor, and the money received by the sheriff came of such credits. The owners of the goods which the sheriff had in his possession were owing the attachment debtor these sums of money for storage of the goods, on which goods the attachment debtor had a lien for the payment of the money. The owners pay these charges they are thus owing, to the sheriff, and he delivers up to them their goods. This money thus paid into the sheriff’s hands was not his money, but the money of the attachment debtor. It was paid to the sheriff on account of the attachment debtor, and was received by the sheriff on account of the attachment debtor. The officer was commanded by the statute to attach the moneys of the attachment debtor, and this money of the attachment debtor we think he should have attached, or have held the same as attached.

This court decided in Reddick v. Smith, 3 Scam. 451, that money in the hands of a sheriff, collected on execution, can not be attached as the property of the plaintiff in the execution. But in Pierce v. Carleton, 12 Ill. 358, it was held that surplus money made on execution, in the hands of an officer, over and above what 'was necessary to satisfy the execution, belonging to the defendant, might be the subject of attachment,—that is, might he garnished in the hands of the officer. And although money in the hands of an officer, collected on execution, of an amount no more than sufficient to satisfy the execution, may not he levied on to satisfy another execution in the officer’s hands, that object may be accomplished by returning the money into court with the writ, when the court ■ may direct the money to be paid in satisfaction of the second execution, as in Armistead v. Philpot, Doug. 219. And see Williams v. Rogers, 5 Johns. 163, and Turner v. Fendall, 1 Cranch, 41. So here, if this money in the sheriff’s_ hands was not strictly property of the warehouse company which could be seized in attachment, it might have been held and brought into court by the sheriff, to answer to the judgment in attachment, as the court might direct. But this money was not collected on any execution. It was money owing to the warehouse company, voluntarily paid into the sheriff’s hands by the company’s debtors, and money may be seized on execution,—and this, too, even though the money be not found in the execution debtor’s own hands. Wheeler v. Smith, 11 Barb. 345; Spencer v. Blaisdell, 4 N. H. 198.

Why, then, should not the sheriff have held this money, and returned it into court to answer upon the attachment ? This certainly would have been in the spirit of the Attachment act, with reference to the appropriation of credits on attachment, which directs that credits shall be attached,—and this court has said the Attachment act should receive a liberal construction. Hannibal and St. Joseph Railroad Co. v. Crane, 102 Ill. 249.

It is said that it was not in accordance with plaintiff’s instructions to the sheriff, for him to levy on this money,—that the instruction was, that the storage money received should be held by the sheriff in the place and stead of the property released. Had the sheriff held the money as instructed, all would have been well. But he did not hold it. He parted with the money, and paid it away on the order of the warehouse company, without the knowledge of the plaintiff. This was in disobedience of the plaintiff’s instruction, and when the sheriff undertook to depart therefrom, his official duty should have guided his conduct.

It is said the attachment of the goods in the warehouse was a trespass, that the warehouse company had its remedy in trespass against the officer for making such attachment,' and that in reparation for the wrong the sheriff might very properly pay the money to the warehouse company. This would appear to assume that any damages in trespass would be assessed to the amount of "these moneys. But it may be supposed any damages which would be assessed for such a trespass would be small, where the officer had appropriated the moneys thus obtained to the satisfaction of a just demand against the company. However, the sufficient answer in this regard would seem to be, that the warehouse company’s order for the payment of the money by the sheriff was a ratification of the sheriff’s agency in receiving the money,—an acknowledgment that the money" in the officer’s hands was the money of the company, and would be a waiver of the supposed trespass. Furthermore, this order was a distinct admission by the warehouse company that the money in the sheriff’s hands was their money, and upon this, if nothing else, the sheriff should have attached, or have held the money in his hands, as the money of the warehouse company, and have brought the same into court, to abide its disposition of the money.

The return day of the writ of attachment was May 5, 1884, and on May 1, 1884, the money was paid by the sheriff upon the order of the warehouse company, so that the order was given before the return day of the writ, and at a time when the sheriff might have levied it upon the money.

The judgment of the Appellate Court will be reversed, and that of the Superior Court will be affirmed.

Judgment reversed.

Mr. Justice Shops, dissenting.