text:
    James Patterson et al. v. Cornelius Lynde et al.

      Filed at Ottawa November 17, 1884.

      Rehearing denied March Term, 1885.

    1. Corporations—stockholders—in case of an insolvent corporation—remedy of creditors—unpaid subscriptions. Creditors, under proper circumstances, are not compelled to wait for the winding up of insolvent corporations, but may proceed to subject their unpaid subscriptions to the payment of their claims; but to do so they must first recover a judgment at law in the courts of this State, and have execution returned unsatisfied.
    2. In such case, the creditor is subrogated to the place of the debtor corporation, and the proceeding is in the nature of an equitable attachment, by which the debts due the company may be applied to the payment of its own debts.
    3. A foreign insolvent corporation owing debts, if still in existence, can be compelled, by mandamus or bill in equity, to collect its unpaid subscriptions wherever the stockholders may reside; and if it has ceased to exist, a receiver should be appointed, and the courts of other States, as a matter of comity, would recognize the right of the receiver, the same as they would the corporation itself if still in existence, to prosecute actions at law for the recovery of unpaid subscriptions.
    4. Unpaid subscriptions are a trust fund for the payment of the debts of the corporation, which is the trustee. When, therefore, the corporation has ceased to exist., then, upon the principle that a trust shall not fail, a court of equity will take jurisdiction and wind up its affairs.
    5. Saws—extent of stockholder’s liability after corporation has ceased to exist—adjustment as between the stockholders themselves. Where a corporation has ceased to exist, its assets in excess of what is necessary to pay its debts belong to the stockholders, and the duty of the stockholder in such case is only to pay his pro rata share of the amount needed to pay the debts. This duty is upon all stockholders owing for stock, and it is the duty of the court to adjust the equities between the different stockholders.
    6. Parties—to bill to collect unpaid subscriptions. To enforce the liability of the stockholder for his unpaid stock, it is indispensable that the corporation (or, if it has ceased to exist, all its stockholders and creditors,) should be before the court so as to be bound by its orders and decrees, and so that complete justice may be meted out to all, and all conflicting rights and equities finally adjusted.
    7. A bill was filed in the circuit court by creditors of an insolvent private corporation of the State of Oregon, against defendants, as stockholders. The complainants alleged the recovery of a judgment at law in Oregon against the company, and its insolvency, and their inability to obtain a judgment at law in this State, and also alleged that the defendants owed large sums on their subscriptions to the capital stock of the company, and sought a decree against them for the same, to satisfy complainants’ demands. The court below sustained a demurrer to the bill: Held, that the demurrer was properly sustained, for the reason of its being impossible to acquire jurisdiction of the corporation, and the non-resident stockholders having no property here.
    8. Foreign receiver—rights and remedies in this State. While this court has held that a foreign receiver should not be permitted, as against the claims of creditors resident in another State, to remove from such State the assets of the debtor, yet when resident creditors have no fixed legal claim to the property, he may be allowed, as a matter of comity, to remove the Same. This is consistent with the right of a receiver appointed in a foreign State, when creditors have not liens thereon, to sue in our courts for unpaid subscriptions, and collect the same, subject to the order of the court appointing him.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.
    Mr. C. M. Harris, for the appellants:
    Unpaid stock of a corporation is a fund for the payment of its debts, and the liability of stockholders is joint and several. Hatch v. Dana, 101 U. S. 210; Ogilvie v. Insurance Co. 22 How. 380; Bartlett v. Drew, 57 N. Y. 287.
    A creditor of a corporation will not be stayed until all the stockholders can be made to contribute their proportionate share of their liability. Heath v. Burroughs, 1 Woods’ C. C. 66; Munger v. Jacobson, 99 Ill. 349.
    There is an element of trust in the case, which always confers jurisdiction in equity, (Oelrichs v. Spain, 15 Wall. 228, Rader v. Neal, 13 W. Va. 386,) although the remedy was ample at law, (Spitland v. Higginbotham, 6 Munf. 614, Coffman v. Layston, 21 Gratt. 263,) or the agency partakes of a fiduciary character, or there is a fiduciary relation. Dobbs v. Nugent, 11 Jur. 943; Badger v. McNamara, 123 Mass. 117.

      Any creditor may prove his claims under a decree rendered in this case. 2 Daniells’ Ch. Pr. (5th ed.) 1209-; Adams’ Eq. 258.
    As to jurisdiction, see Hurd’s Stat. 1881, p. 348; Life Association v. Fassett, 102 Ill. 315; 22 id. 9; Railway Co. v. Packet Co. 108 id. 317; Insurance Co. v. Bank of Bristol, 68 id. 348; Pennoyer v. Neff, 95 U. S. 733; Harris v. Pullman, 84 Ill. 20.
    The situs of the indebtedness of demurrants is here, and would be had it been made payable elsewhere, regardless of the residence of the payee, which of itself confers jurisdiction of the subject matter. Wyman v. United States ex rel. 12 Wash. Law Rep. 35; Plympton v. Bigelow, 93 N. Y. 592; Miln v. Merton, 6 Binn. 361.
    Want of jurisdiction of the person may be waived, and is waived, because no objection is made by a non-resident defendant, or the corporation. Insurance Co. v. Cohen, 9 Mo. 417; Redmond v. Hoge, 10 N. Y. 174; Hunt v. Insurance Co. 55 Maine, 297.
    The power to appoint a receiver is of the same nature as that to grant an injunction. Beverly v. Burke, 4 Gratt. 187; Smith v. Butcher, 28 id. 151; Penn v. Whitebanks, 12 id. 82.
    As to grounds for appointing a receiver, see 2 Story’s Eq. Jur. sec. 832; Jenkins v. Jenkins, 1 Paige, 243.
    A receiver may make an assessment upon parties liable for unpaid and unassessed losses. Thomas v. Whalen, 31 Barb. 178.
    A receiver may be appointed to preserve property whenever an attachment would lie, if the matter was cognizable at law. Todd v. Lee, 15 Wis. 365; Penn v. Whitebanks, 12 Gratt. 82.
    It is not a sufficient objection to the bill for the want of parties that all the creditors or stockholders are not sued. If necessary, the court may, at the suggestion of either party that the corporation is insolvent, administer its assets by a receiver, and thus collect all the subscriptions or debts to the corporation. Ogilvie v. Insurance Co. 22 How. 380.
    A receiver may be appointed without notice to the opposite party, where irreparable injury would be sustained by the delay, or the defendant is out of the jurisdiction of the court, so that he can not be served with a subpoena. People v. Norton, 1 Paige, 17; Gibbins v. Mainwarring, 8 Sim. 77; Malcomb v. Montgomery, Molloy, 500.
    The powers of a receiver are coextensive only with the jurisdiction of the court appointing him, and a foreign receiver will not be permitted, as against the claims of creditors resident in this State, to remove from this State the assets of the debtor, it being the policy of every government to retain in its own hands the property of the debtor until all domestic claims against it have been satisfied. Railway Co. v. Packet Co. 108 Ill. 317; Insurance Co. v. Bank of Bristol, 68 id. 348.
    Mr. Samuel M. Osborne, and Mr. Samuel A. Lynde, for the apjiellees:
    A court of equity has not the power to take the necessary accounts and make distribution of the assets of a foreign corporation among its creditors, and to enforce, at suit of its creditors, the trust upon which it holds its property. Such proceedings must be had in a court that has jurisdiction over the corporation. Barclay v. Tallman, 4 Edw. Ch. 128; Bank of Virginia v. Adams, 1 Pars. Eq. 534.
    As long as the corporation exists, the creditor must have a judgment before he can proceed in equity to enforce the payment of subscriptions. Terry v. Anderson, 95 U. S. 636; Adler v. Brick Co. 13 Wis. 57.
    The stockholder is not a trustee for the creditors of the corporation. There is no privity of contract between stockholders and creditors of corporations. Patterson v. Lynde, 106 U. S. 521; Terry v. Anderson, 95 id. 636; Ladd v. Cartwright, 7 Ore. 329.

      The liability of stockholders is that of debtors of the corporation. Ogilvie v. Insurance Co. 22 How. 380; Henry v. Railroad Co. 17 Ohio, 187.
    The remedy of creditors is, to be subrogated in place of the indebted corporation. Hatch v. Dana, 101 U. S. 210; Hickling v. Wilson, 104 Ill. 63.
    The trust upon which a corporation holds its property is for all its creditors. The bill should he in behalf of all the creditors, and the court should distribute its entire, assets among the parties entitled to share in them. It should make the corporation and all its stockholders parties defendant. Patterson v. Lynde, 106 U. S. 521; Adler v. Brick Co. 13 Wis. 57; Wetherbee v. Baker, 35 N. J. Eq. 506.
    Such a bill can only be filed in the courts of the State where the corporation exists. Barclay v. Tallman, 4 Edw. Ch. 128; Murray v. Vanderbilt, 39 Barb. 147; Bank of Virginia v. Adams, 1 Pars. Eq. 534.
    A receiver appointed in another State may sue here in his own name. Dayton v. Borst, 31 N. Y. 435; Mann v. Cooke, 20 Conn. 178; Chandler v. Siddle, 3 Dill. 477; Biddock v. Mason, 11 C. E. Green, 230; National Trust Co. v. Miller, 33 N. J. Eq. 155.
    This is so when the claims of home creditors upon the property do not conflict. Taylor v. Insurance Co. 14 Allen, 354; Hunt v. Insurance Co. 55 Maine, 297; Runk v. St. John, 29 Barb. 587.
    A creditor’s bill can not he maintained by the holder of a judgment of another State. Claflin v. McDermott, 12 Fed. Rep. 375; Walser v. Seligman, 13 id. 415; McLune v. Benceni, 2 Ired. Eq. 513; Tarbell v. Griggs, 3 Paige, 207; Davis v. Bruns, 23 Hun, 648; Steere v. Hoagland, 39 Ill. 264; Farned v. Harris, 19 Miss. 366; Berryman v. Sullivan, 21 id. 65; Bullitt v. Taylor, 34 id. 708; Brown v. Bates, 10 Ala. 432; Freeman on Executions, sec. 427; Greenway v. Thomas, 14 Ill. 271.

      The only exception to this rule is when the corporation has ceased to exist. Terry v. Anderson, 95 U. S. 636; Walser v. Seligman, 13 Fed. Rep. 417.
    A court of equity has no power to appoint a receiver of a foreign corporation. Verplank v. Insurance Co. 6 Paige, 503.
   Mr. Chief Justice Scholfield

delivered the opinion of the Court:

This was a bill in equity, by James Patterson and Thomas J. Brown, against the Malheuer and Burnt River Consolidated Ditch and Mining Company, and Ransom R. Cable and Cornelius Lynde, and others, stockholders in that company, to compel them to pay the amount of a debt owed by the company to the complainants, because of their respective indebtedness to the company on unpaid subscriptions to its capital stock. The circuit court sustained a demurrer to the bill, and the Appellate Court for the First District affirmed that ruling.

The Malheuer and Burnt River Consolidated Ditch and Mining Company is a corporation created under the laws of the State of Oregon, for the purpose of constructing and using ditches, and conducting mining operations, etc., in that State, only. It is alleged that the corporation commenced doing business in 1863; that in 1870 it assumed its present name, and increased its capital stock to $1,000,000, which was all subscribed; that between March, 1871, and April, 1873, the corporation became indebted to the complainant Patterson in the amount of $50,394.36, for which,' on the 4th of June, 1873, it gave him its note, payable one day after date, with interest at one per cent per month, and attorney’s fees; that. on the 2d of August, 1873, complainant Patterson, under a statute of Oregon then in force, procured a judgment to be entered in his favor, against the corporation, for the amount due on such note, by the clerk of a court in one of the counties in Oregon, in vacation of the court; that execution was issued on such judgment, which was afterwards returned unsatisfied, and that complainant Brown subsequently obtained an interest in that judgment, by assignment. It is further alleged, that there are large sums due the corporation from the defendants upon the capital stock of the corporation by them, respectively, subscribed, and that some of the defendants reside in Oregon, some in Illinois, and some in other States; that by the constitution of Oregon it is provided that “the stockholders of all corporations and joint stock companies shall be liable for the indebtedness of the corporation to the amount of their stock subscribed and unpaid, and no more; ” and that by the statute of that State “all sales of stock, whether voluntary or otherwise, transfer to the purchaser all rights of the original holder or person from whom the same is purchased, and subject such purchaser to the payment of any unpaid balance due or to become due on such stock; but if the sale be voluntary, the seller is still liable to existing creditors for the amount of such balance, unless the same be duly paid by such purchaser. ” It is further alleged, that on January 20, 1873, two of the defendants, Lynde and Cable, who are residents of this State, caused their stock to be transferred on the books of the company to one M. Johnson, but that the transfer was not for a valuable consideration, and was merely colorable. There is also an allegation of the insolvency of the corporation, apart from its unpaid capital stock.

We do not deem it necessary to notice the allegations of the bill further, since these fully present what we regard the vital points in the case.

No judgment at law was obtained in this State upon the record of the Oregon judgment, and there is no pretence that there is any property in this State belonging to the corporation, or that the corporation has, at any time, exercised corporate acts in this State. It is purely a foreign corporation, whose franchise is to be exercised entirely beyond the limits of this State, and in the State of its origin,—that is to say, in the State of Oregon. It is shown by the bill that an action at law was brought by the complainant Patterson, against the defendant Lynde, on the record of the judgment of the Oregon court, in the Circuit Court of the United States for the Northern District of Illinois; that a judgment was rendered therein sustaining a demurrer to the declaration, and that such judgment was affirmed by the Supreme Court of the United States. As appears from the report of that case, (Patterson v. Lynde, 106 U. S. 520,) the court, after stating that the only question before it is whether an action at law can be maintained, and after reciting the constitutional and statutory provisions of Oregon before quoted, proceeds: “Since this ease was decided below, the Supreme Court of Oregon has passed on the same question, and in Ladd v. Cartwright, 7 Ore. 329, determined that the individual liability of stockholders for the indebtedness of the corporation is limited to the amount of their stock subscribed and unpaid, and that the remedy of the creditor to enforce this liability is in equity, where the rights of the corporation, the stockholders, and all the creditors, can be adjusted in one suit. Of the correctness of this decision we have no doubt. The liability of the stockholder is upon his subscription,—that is to say, upon his obligation to contribute to the capital stock,—which is a trust fund for the benefit of those to whom the corporation, as a corporation, becomes liable. (Sawyer v. Hoag, 17 Wall. 610.) The constitution of Oregon created no new right in this particular,—it simply provided for the preservation of an old one. The liability under this provision is not to the creditors, but for the indebtedness. That is no more than the liability created by the subscription. The subscription is part of the assets of the corporation,—at least so far as creditors are concerned. The liability of the stockholder to the creditor is through the corporation,—not direct. There is no privity of contract between them, and the creditor has not been given, either by the constitution or the statute, any new remedy for the enforcement of his" rights. The stockholder is liable to the extent that the subscription represénted by his stock requires him to contribute to the corporate funds, and when sued for the money he owes, it must be in a way to put what he pays, directly into the treasury of the corporation, for distribution according to law. No one creditor can assume that he, alone, is entitled to what any stockholder owes, and sue at law, so as to appropriate it exclusively to himself. ”

Unless it shall be held that what is here said is not law, and therefore shall not be followed, it is conclusive of this case. The complainants seek to enforce payment of unpaid subscriptions, not through the corporation, nor in such manner as to bring the money directly into the treasury of the corporation, but so as to put the amount directly into their own pockets, disregarding the rights of other creditors, and the equities of these defendants in respect to other stockholders who have not paid the amount of their subscriptions.

Undoubtedly, under decisions of this court relating to domestic corporations, creditors, under proper circumstances, are not compelled to wait for the winding up of insolvent corporations, but may proceed to subject their unpaid subscriptions to the payment of their claims; but to do so, they must first recover a judgment at law in the courts of this State, and have execution returned unsatisfied. (Greenway v. Thomas, 14 Ill. 271; Weightman v. Hatch, 17 id. 281; Bigelow v. Andress, 31 id. 323; Dewey v. Eckert, 62 id. 220.) In such case, the creditor is subrogated to the place of the debtor corporation, and the proceeding is in the nature of an equitable attachment, by which the debts due the company may be applied to the payment of its own debts. (Hickling v. Wilson et al. 104 Ill. 63; Hatch v. Dana, 101 U. S. 211.) Necessarily, therefore, the judgment must be a judgment of this State. We have held, even, that a judgment of the circuit court of the United States can not thus be enforced in the district in which it is obtained. (Steere v. Hoagland, 39 Ill. 264. See, also, McLune v. Benceni, 2 Ired. Eq. 513.) Where, however, a corporation has ceased to exist, no judgment at law can be obtained, and in such cases creditors are allowed to proceed in equity. The unpaid subscriptions are a trust fund for the payment of the debts of the corporation, and the corporation is the trustee. When, therefore, the corporation ceases to exist, the court, upon the principle that a trust shall not fail, will take jurisdiction, and wind up the affairs of the corporation. (Terry v. Anderson, 95 U. S. 636; Thompson on Liability of Stockholders, sec. 15.) But in equity, if the corporation has ceased to exist, assets in excess of what is necessary to pay the debts of the corporation belong to the stockholders, and the duty of the stockholder in such cases can, therefore, only be to pay his pro rata part of the amount necessary to pay the debts. The duty is not upon one, but upon all stockholders owing for stock, to pay; and it is the duty of the court to adjust the equities between the different stockholders. Sawyer v. Hoag, 17 Wall. 610; Adler v. Brick Co. 13 Wis. 57; Wetherbee v. Baker, 25 N. J. Eq. 501.

To enforce the liability of the stockholder for his unpaid stock, in equity, therefore, it is indispensable that the corporation (or, if it has ceased to exist, all its stockholders and creditors,) should be before the court, so as to be bound and concluded by its action. A decree that one stockholder should pay, or that one creditor should be paid, must be partial and incomplete, and might be grossly inequitable and unjust ; and a decree assuming to affect the rights of parties, where there is neither jurisdiction of the person nor of the entire subject matter of litigation, can, at most, be only partially effective.

In Harris et al. v. Pullman et al. 84 Ill. 25, in speaking of the power of a court of equity in this State to proceed against persons and things in another State, we quoted and adopted the language of the Supreme Court of the United States in Boswell’s Lessees v. Otis, 9 How. 348, that “jurisdiction is acquired in one of two modes: first, as against the person of the defendant, by service of process; or, secondly, by a proceeding against the property of the defendant, within the jurisdiction of the court. In the latter case, the defendant is not personally bound by the judgment beyond the property in question. ” Here, whether the liability of the defendants exists or not, depends not upon the law of Illinois, but upon the law of Oregon; and it has been seen by the quotation from the opinion in Patterson v. Lynde, supra, that the liability is held by the Supreme Court of Oregon to be in equity, and not at law, so that “the rights of the corporation, the stockholders and all the creditors can be adjusted in one suit. ” It would, in such case, be a material inquiry whether Johnson, the assignee of the stock of the defendants Lynde and Cable, had, .before the filing.of the bill, paid the balance due on the stock, for if he had, that would end the defendants’ liability. It is simply impossible in this suit to adjust any equities, because the necessary parties are not, and can not be, brought before the court. At most, the decree could but affect the unpaid stock of Lynde and Cable. A decree as to the corporation, and as to creditors and stockholders not personally before the court, would be vain and worthless. The necessary account could not be taken, and if taken, the rights of the parties as fixed thereby could not be ascertained. We have been furnished with no precedent for a case like the present, but, on the contrary, the rulings in Bank of Virginia v. Adams, 1 Parsons, (Pa.) Select Eq. C. 534, and Barclay v. Tollman, 4 Edw. Ch. 123, are directly against it.

The point is earnestly pressed that if this remedy is not ' effective the complainants are without any remedy. This is a serious misapprehension, as we think. The corporation, if still in existence, could have been compelled, by mandamus or bill in equity, to collect its unpaid subscription; and if it had ceased to exist, a bill might be filed in the proper court in Oregon, to wind up its affairs and have a receiver appointed, and our courts, as a matter of inter-State comity, would recognize the right of the receiver, as they would of the corporation if still in existence, to prosecute actions at law for the recovery of unpaid balances due on capital stock. Dayton v. Borst, 31 N. Y. 435; Mann v. Cooke, 20 Conn. 178; Biddock v. Mason, 11 C. E. Green, 230; National Trust Co. v. Miller, 33 N. J. Eq. 155; Chandler v. Siddle, 3 Dill. 477.

The doctrine is recognized by this court that a receiver should not be permitted, as against the claims of creditors resident in another State, to remove from such State the assets of the debtor; but where resident creditors have no fixed legal claim to the property, he may be allowed, as a matter of comity, to remove the same. (Chicago, Milwaukee and St. Paul Ry. Co. v. Packet Co. 108 Ill. 317.) And this is entirely consistent with the right of a receiver appointed in a foreign State, where creditors have not liens thereon, to sue in our courts for unpaid subscriptions, and collect the same, subject to the order of the court appointing the receiver.

We perceive no cause to disagree with, the court below, and therefore affirm its decree.

Decree affirmed.

Subsequently, upon an application for a rehearing, the following additional opinion was filed:

Mr. Chief Justice Scholfield : We have reconsidered the questions discussed upon this record, patiently, and with such care as we can, and we are unable to perceive any reason requiring us to change or modify what we have said in the foregoing opinion.

Some misapprehension exists in the mind of the attorney for the appellants, as we conceive, in consequence of not keeping in view the fact that the liability of stockholders in different corporations may not be the same, because the language of the charters fixing their liability varies materially in its legal effect. The contract of subscription here sought to be enforced, is a contract made and intended to be performed in the State of Oregon. We must therefore, in respect to its validity, its nature, its interpretation and its effect, resort to the law of that State. By that law the stockholder is liable only for any balance that may remain unpaid upon his subscription. The liability is to the corporation, and' not to the debtor, but for the indebtedness; and when, as here, he has sold his stock, his liability is only contingent, and does not become absolute until there is a failure to pay the balance by the purchaser after the same has been duly demanded by the proper officers of the corporation. The remedy is in equity, in a suit against the corporation and all the stockholders, where the rights of the corporation, the stockholders and all the creditors may be adjusted in one suit. (Ladd v. Cartwright, 1 Ore. 329.) In other States and under different laws, it may be a remedy can be enforced in a different way, by a debtor against a delinquent stockholder. We only decide that this Oregon contract can not be enforced, here, under the state of case made by this bill.

The prayer for rehearing is denied.

Rehearing denied.


source: Caselaw Access Project

author: Mr. Justice Craig

license: Public Domain

text:
    Frederick Fischbeck v. Frances A. Gross.

      Filed at Ottawa November 17, 1884.

    1. Trust—Statute of Frauds—conveyance intended for the benefit of one person, fraudulently procured to be made to another. If A was intending to convey land to O, and B interfered, and advised A not to convey directly to O, but to convey to himself, promising if A would do so, he, B, would hold the land in trust for O, equity will enforce the trust upon the ground that B obtained the title by fraud and imposition upon A. But if B had taken no measures to procure the conveyance to himself, his verbal promise to hold the property for 0 would fall within the Statute of Frauds.
    2. A husband intending to convey an interest in land to his wife, consulted with a friend and his attorney in respect thereto, and before leaving this State to return home, directed the attorney to prepare a deed from him to his wife, to be forwarded to him for execution. The friend had the attorney make him the grantee, and both he and the attorney wrote to the grantor, stating such to he for the best, and that the grantee would reconvey when asked, and in pursuance of such assurance the husband conveyed to his friend instead of his wife, but the grantee afterwards refused to convey to the wife: Held, that the case was not within the Statute of Frauds, and that the grantee was a trustee by his own procurement and fraud.
    3. Trustee—as to proper expenditures to be allowed to trustee. On bill to have a trust declared and the holder of real estate compelled to convey the same to the complainant as the real owner, it was held error, in stating an account between the parties, to reject an item for taxes paid, and for proper repairs on the premises before suit brought. The payment of interest' upon a debt secured by a mortgage upon the premises, was also a proper charge to be allowed upon taking the account, as the premises were thereby relieved from the incumbrance to that extent.
    Appeal from the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.
    Frances A. Gross, suing in her own right, and as executrix of the estate of William H. Gross, deceased, exhibited her bill in chancery in the court below, against Frederick Fischbeck, for the purpose of having a trust declared in her favor in respect of certain premises for which the defendant held the legal title. Upon the hearing, the court decreed in favor of the complainant. The defendant appealed;
    Messrs. Moses & Newman, for the appellant,
    contended that the evidence was not sufficient to show a trust, and the evidence being purely oral, the case fell within the Statute of Frauds, unless appellant acted ex maleficio.

    Even in the class of cases where a trust can be shown by parol, the court will not act upon it if it be not irrefragable, or if it be contradicted by other evidence. Lantry v. Lantry, 51 Ill. 458; Hill on Trustees, 157.

      No trust can be enforced for the reason that the conveyance was made to defraud creditors of the grantor. Ex turpi non oritur actio. Fast v. McPherson, 98 Ill. 496; Dunaway v. Robertson, 95 id. 419; Whipple v. Whipple, 109 id. 418; Murphy v. Hubert, 16 Pa. St. 56.
    The language employed by a party to show a trust, must show, unequivocally, an intention to create the same. Stone v. Hackett, 12 Gray, 227; McFaclden v. Jenkins, 1 Hare, 462; Kekewich v. Manning, 1 DeG., M. & M. 176; Young v. Young, 80 N. Y. 422; Martin v. Funk, 75 N. Y. 134; 2 Pomeroy’s Eq. sec. 996.
    A mere unfinished, inchoate purpose expressed does not create a trust. Dellinger's Appeal, 71 Pa. St. 425.
    As to a prospective gift, see Zimmerman v. Streeper, 75 Pa. St. 154; Cushing v. Blake, 31 N. J. 700.
    Where the determining act remains in fieri, the intention to deliver does not execute the gift, and equity will not decree. Trough’s Estate, 75 Pa. St. 118; Carhart's Appeal, 78 id. 100.
    This court, as early as 1849, in Clarke v. Lott, 11 Ill. 115, decided that “if the transaction on which a voluntary trust is attempted to be established is still executory or incomplete, the court will decline all interference in the matter. ”
    In Otis v. Beckwith, 49 Ill. 121, some of the English authorities cited by us were reviewed. Browne on Statute of Frauds, 106, 108; Foster v. Hale, 3 Ves. Jr. 696; Badgley v. Votrain, 68 Ill. 25; Padfield v. Padfield, id. 210.
    The master erred in disallowing all expenditures for repairs, payment of interest and insurance prior to the date of the deed, and for taxes paid.
    Mr. Charles F. White, and Mr. M. L. Wheeler, for the appellee:
    Trusts are not necessarily to be declared in writing, but only to be manifested and proved by writing, for if there be written evidence of the existence of such a trust, the danger of parol declarations, against which the statute was directed, is effectually removed. Kingsbury v. Burnside, 58 Ill. 329; Lewin on Trusts, 63; Cornelius v. Smith, 55 Mo. 528; Johnson v. Delaney, 35 Texas, 42; Throop v. Hatch, 3 Abb. Pr. 32; Steere v. Steere, 5 Johns. Ch. 1; Malin v. Malin, 1 Wend. 625; Riggs v. Swan, 6 Jones’ Eq. 118; Forster v. Hale, 3 Ves. Jr. 696, and 5 id. 308.
    Where there is some written evidence inconsistent with the fact that the supposed purchaser was the actual purchaser, further evidence by parol is admissible to prove the truths of the transaction. 2 Sugden on Vendors, (7th Am. ed.) 911; Roberts on Frauds, 101, 102.
    Where it appears that a trust was created by verbal agreement, if the defendant fails to set up the statute, it will be considered as waived. Carpenter v. Davis, 72 Ill. 14; Lear v. Chouteau, 23 id. 39; Deniston v. Hoagland, 67 id. 268.
    Appellant became a trustee by his own procurement, and his attempt to keep the property under such circumstances, constitutes a fraud, which precludes him from setting up the Statute of Frauds. Kingsbury v. Burnside, 58 Ill. 336; Lantry v. Lantry, 51 id. 458; Barrell v. Hanrick, 42 Ala. 60; Miller v. Pearce, 6 Watts & S. 97; Foote v. Foote, 58 Barb. 258; Noll v. Carter, 15 W. Va. 567; Gilmore v. Johnson, 29 Ga. 67; Perry on Trusts, sec. 166.
    One who has obtained another’s property from him by fraud, is a trustee ex maleficio. Christy v. Sill, 95 Pa. St. 380.
    If A induces B to part with title to land on an assurance that A will convey back a portion, upon A’s refusal to do so he is held a trustee ex maleficio for B. Beegle v. Wentz, 55 Pa. St. 399; Cox v. Arnsmann, 76 Ind. 210.
    Where a person fraudulently intercepts a gift intended for another, by promising to hand it over if it is left to him, equity will compel an execution of the promise. Perry on Trusts, sec. 181; Hoge v. Hoge, 1 Watts, 213; Devenish v. Baines, Prec. Ch. 4.

      A trustee is entitled to no compensation for managing trust property, in the absence of a contract. Huggins v. Rider, 77 Ill. 360.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by Frances A. Gross, in the circuit court of Cook county, against Frederick Fischbeck, to establish a trust in certain premises in Chicago in favor of complainant, and to compel a conveyance thereof to her. The defence relied upon was of a three-fold character: First, that no trust was created; second, the Statute of Frauds; and third, that the conveyance from Gross to him was made with the intent to hinder and delay the creditors of Gross.

Many of the facts in reference to the transaction in controversy are undisputed, among which are the following: That Charles Y. Gross, the husband of complainant, in July, 1877, was the owner in fee of the' undivided five-sixteenths of the lots in question, subject to a mortgage in favor of the Connecticut Mutual Life Insurance Company, amounting to some $4000; that on or about July 30, 1877, Charles Y. Gross conveyed the premises to appellant;, that appellant paid no consideration whatever for the conveyance. Nothing, however, appears on the face of the deed made to appellant, indicating the character or object of the conveyance; but the parol evidence and letters prove, beyond controversy, that the land was deeded to appellant to hold for the benefit of appellee. In June, 1877, Charles Y. Gross, who then resided at St. Joseph, Missouri, went to Chicago to consult with appellant in regard to conveying the property to his wife. At the suggestion of appellant they called upon the attorneys of the latter in Chicago, and after a consultation the attorneys were directed to prepare a deed conveying the property to appellee, which was to be forwarded to Gross, at St. Joseph, Missouri, for execution. Gross returned to Missouri, and appellant, after Gross had left, caused a deed to he prepared by his attorneys, conveying the property to himself, instead of to appellee, and the deed, thus prepared, was sent to St. Joseph, Missouri, to be executed. The following letter was sent by the attorneys with the deed:

“Chicago, July 30, 1877.
“Charles V. Gross—In compliance with your request, we have made a transfer of your interest in the estate of John L. Gross. We drew the deed to Mr. Fischbeck, instead , of your wife, in order to avoid any suspicion that the transfer was made to avoid creditors. Mr. Fischbeck will quitclaim it back to you for your own protection; but this last deed must not be recorded. It will be good as between you without recording. Sign the enclosed deed, acknowledge the same before a notary public, and get a certificate of magistracy, and return at once for recording. Enclosed please find bill for our services and cost of recording. ”

Appellant also wrote Gross a letter, as follows:

“Chicago, July 30, 1877.
“Dear Charles—The papers are made out and sent to you. You can have them signed over to Fanny, or you may leave it as it is fixed. I will do in your favor the best I can. I think it is better you leave it for a while in my hands. The lawyer thought it was better, too. ”

After the receipt of these letters the deed was executed, and returned to Chicago, and placed upon record.

It is apparent from the evidence that Charlés V. Gross intended to convey the property directly to his wife. The attorneys were directed to prepare the deed conveying the property to her, and the only logical conclusion that can be reached from all the evidence is, that the conveyance would have been made directly to her had not appellant interposed, and ordered and directed that the conveyance should be made to himself, with the understanding that he would hold the property in trust for appellee. If our view of the evidence is the correct one, it is plain that the case is one, in its facts, which falls directly within the rule announced in Lantry v. Lantry, 51 Ill. 458. In the case cited, where the facts are quite similar to the facts in this case, it is said: “If A voluntarily conveys lands to B, the latter having taken no measures to procure the conveyance, but accepting it, and verbally promising to hold the property in trust for 0, the case falls within the statute, and chancery will not enforce the parol promise. But if A was intending to convey the land directly to G, and B interfered, and advised. A not to convey directly to G; but to convey to him, promising, if A would do so, he, B, would hold the land in trust for C, chancery will lend its aid to enforce the trust, upon the ground that B obtained the title by fraud and imposition upon A. ” See, also, Pomeroy’s Equity, sec. 1055; Beegle v. Wentz, 56 Pa. St. 399.

Gross, in his evidence, testified that he ordered the attorneys whom he engaged to prepare the deed, to make it to his wife, and he left the attorneys’ office with the understanding that the deed was to be made conveying the property to her. In this he is not contradicted by appellant or the attorneys, all of whom were present when the direction was given to make out the deed. The letters written by the attorneys and appellant corroborate Gross upon this point, so that there is no doubt as to the fact. It is also equally plain, from the evidence, that the deed would have been made to appellee, as originally directed, had not appellant interfered, and caused the deed to be made to himself. If, then, appellant, by his own act, had the'property conveyed to himself, when Gross, the grantor, intended to convey to his wife, appellant became trustee by his own procurement, and under the authorities cited he is to be regarded as holding the property in trust for appellee. The Statute of Frauds can not, under the facts here established, be invoked to aid in the commission of a fraud, which would be the case if appellant was allowed to hold the land..

Much has been said in the argument in regard to the conveyance having been made to defraud creditors; but it will not be necessary to devote much time to this branch of the case. No creditors seem to be complaining, and so far as appears, this defence is not resorted to in order to aid any creditor, but solely to enable appellant to hold property not owned by him,—property for which he never paid a dollar. Surely, the equities of the case are all against the claims of appellant.

But conceding the general rule to be that a court of equity will not aid a party to get back property which he has conveyed to another with the intention of defrauding creditors, the question recurs whether such a case is presented by this record. Gross himself testified, that in July, 1877, when the deed was made, he owed nothing, and had no creditors except his brother, George, and appellant, and that they both advised him to make the deed. It also appears from one of the letters read in evidence, that Mary Fischbeck, who represented whatever claim the estate of John L. Gross held against the grantor in the deed, knew of and advised the conveyance. Appellant relied upon various letters written by Gross to different members of his family, to establish his indebtedness. While it is quite evident from the letters that Gross was not a thrifty business man, and did not possess a large amount of property, and might be somewhat embarrassed in his affairs, yet, with one exception, the letters do not show to whom he was indebted, or the amount. If Gross was insolvent, as claimed by appellant, why did he not introduce proof showing the names of creditors, and the amounts due them ? In a letter to his father, dated May 27, 1876, which was read in evidence by appellant, Gross gives a detailed statement of his debts at that time; and from this statement, after deducting the amount due him, which he expected to apply on his debts, he would only be indebted at the end of the month in the sum of $500. The evidence introduced, to show that Gross was insolvent, and that the deed was made to hinder, delay and defraud creditors, is, in our judgment, too vague, uncertain and indefinite to be relied upon to establish that fact.

Appellant, as appears from the evidence, paid $160, on April 23, 1877, interest on the mortgage on the premises. In stating the account, the master in chancery refused to allow appellant credit for this amount. As this was paid to relieve the premises from an incumbrance, we see no reason why the amount should not have been allowed, in stating the account. The fact that the money was paid at the request of William Gross, one of the tenants in common, did not matter. By the payment of the money the land was so far relieved from an incumbrance resting upon it, and each one of the owners should be charged with the amount paid, in proportion to the land owned by him.

Sixty-four dollars and forty-four cents was expended by appellant for repairs on the premises prior to July 20, 1877. This amount the master rejected. This, in our judgment, was a proper charge, and should have been allowed.

In other respects the decree of the. circuit court is correct. The decree of the circuit court will be reversed, and the cause remanded, with directions to so modify the decree as to allow the two items indicated herein.

Decree reversed.


author: Mr. Justice Scott

text:
    Ithiel C. Towner et al. v. Robert S. Tickner et al.

      Filed at Ottawa January 22, 1885.

    1. Specific performance—by vendor against purchaser—of the matter of possession of the premises sold—as affecting the right of the vendor to a specific performance. At the time a contract for the sale of a mill and mill property was made, the same was in the possession of a tenant of the vendor, who was entitled to three months’ notice to surrender such possession. Notice was given him so that he would have to give possession on the day the parties were to perform the contract of sale and purchase, and he was willing to give possession at the appointed time, but was assured by the purchaser that he need not do so on his account. The vendor tendered a deed for the property, and offered to give possession, which was refused: Held, on bill for specific performance, that so far as delivery of possession of the real property was concerned, the purchaser was in no position to make any just complaint.
    2. Same—trifling deficiencies— as, a water wheel of a mill out of repair— as an excuse for purchaser not performing. A purchaser of mill property, etc., refused to perform his contract on the ground that a water wheel was out of repair, or was not in as good a condition as it was represented. The defect could have been made good at a very small expense, and the attention of the vendor was not called to the "defect so as to enable him to make the needed repairs: Held, that such trifling defect was no bar to a bill for specific performance, in which compensation was allowable for such defects.
    3. Same—want of title in the vendor as to some of the machinery connected with mill property sold—duty of purchaser to notify vendor—compensation, not forfeiture. The owner of a mill and machinery therein, then in the possession of a tenant, made a written agreement for the sale of the mill property, with a water power appurtenant thereto, and the machinery used in and about the mill, described in a written memorandum thereof,— deed for "the real estate, and bill of sale of the movable machinery, to be given, with possession, by a day named. It turned out that the tenant claimed some of such machinery and the right to remove the same, but the vendor did not learn of such claim until on the hearing on bill for specific performance, he having previously tendered the purchaser the deed and bill of sale, when the latter refused to complete the contract, without pointing out to the former the articles claimed by the tenant: Held, that such claim of the tenant furnished no bar to a bill for specific performance, the vendor being guilty of no fraud, and willing to supply such articles as the tenant claimed, if he had been notified of the claim. In such case, compensation should be made for the articles in fact not owned by the vendor at the time of the sale.
    4. Same—compensation for deficiency in subject matter of sale. Where a purchaser gets substantially all for which he contracted, he will not be permitted, in equity, to refuse to perform the contract on account of a slight deficiency, when full compensation can be made in money, and when the deficiency is occasioned by no bad faith on the part of the vendor.
    5. Same—where a part of the movable machinery sold was on land of another. The purchaser of a mill and mill property, including movable machinery and apparatus used in connection with the mill, will not, in a court of equity, be justified in refusing to perform his contract on the ground that a platform and a “lean-to, ” so called, connected with the mill, is on the land of an adjoining owner, who makes no claim thereto; nor will the fact that a tenant occupies a small space of the ground as a carpenter shop, which in no way affects the profitable use of the mill, especially when it appears the occupant has no valid claim to hold for any definite time, furnish any excuse for repudiating the contract of sale.
    Appeal from the Circuit Court of Kane county; the Hon. C. W. Upton, Judge, presiding.
    The bill in this ease was brought by Robert S. Tickner and John L. Tickner, against Ithiel C. Towner and S. P. Richards, in the City Court of Elgin. Afterwards, the venue was changed to the circuit court, of Kane county, where the cause was tried, and a decree rendered against defendants, to reverse which they have brought the ease to this court on their appeal. The facts of the case sufficiently appear in the opinion of the court.
    Mr. R. N. Botsford, for the appellants:
    In order to induce a court of equity to enforce the specific performance of a contract, it must be founded on a good consideration,—it must be reasonably fair and just. Sear v. Chouteau, 23 Ill. 39.
    The party seeking enforcement must stand prepared to meet the scrutiny of the court, and he must show what he asks is not unjust or oppressive to the defendant. Stone v. Pratt, 25 Ill. 25.

      It is only on the principle that it is unjust and inequitable to permit the contract to remain unexecuted, that a court of chancery assumes jurisdiction to enforce it. Tamm v. Lavalle, 92 Ill. 263; Brix v. Ott, 101 id. 70.
    A specific performance of a contract is not decreed merely because a legal contract is shown to exist. It will not be decreed as a matter of course. Alexander v. Hoffman, 70 Ill. 114; Gosse v. Jones, 73 id. 508.
    Appellees made no effort of any kind to put themselves in a condition to perform their contract, but they now ask appellants to excuse their misrepresentation, their deception, their indifference, and inability to perform, and demand from appellants a literal compliance on their part. This conduct on the part of appellees the law will not approve. Brown v. Cannon, 5 Gilm. 174; Walker v. Douglas, 70 Ill. 445; Seymour v. Delaney, 6 Johns. Ch. 222.
    A court of equity has no power to alter contracts of parties, but must enforce them as made. Kemp v. Humphreys, 13 Ill. 573; Chrisman v. Miller, 21 id. 227; Steele v. Biggs, 22 id. 643; Heckard v. Sayer, 34 id. 142; Stow v. Russell, 36 id. 19.
    Mr. J. W. Ranstead, for the appellees:
    Appellants, by informing the tenant not to give up possession of the real estate, are estopped from saying appellees could not then deliver possession. Risinger v. Cheney, 2 Gilm. 84.
    Where no objection is made to a tender, but a refusal to perform the contract is placed on other grounds than a performance or ability to perform, the tender will be good. Carbus v. Lead, 69 Ill. 206; Morgan v. Herrick, 21 id. 493; Williams v. Bank, 2 Pet. 102; Thayer v. Star Mining Co. 105 Ill. 548.
    Appellants’ attorney omits the qualification to the rule, that the fraud, imposition or mistake must be about something which is material, and goes to the essence of the contract. In other words, the misrepresentation or mistake must concern something constituting an inducement or motive, without which the contract would not have been made, and by which the party defending has been misled to his injury. De Wolf v. Pratt, 42 Ill. 198; Smith v. Richards, 13 Pet. 37; 1 Story’s Eq. Jur. sec. 151; Waterman on Specific Per. secs. 311, 359; Fry on Specific Per. (2d ed.) sec. 457; Pomeroy’s Eq. Jur. secs. 856, 860, 868; Kerr on Fraud and Mistake, 73, 74.
    Compensation, not forfeiture, is the universal rule of equity, and a vendor, notwithstanding he can not convey strictly according to his contract, and it appears that the part which can not be conveyed is of small importance, or is immaterial to the enjoyment of that which may be conveyed to him, may insist on a specific performance, with compensation to the purchaser. De Wolf v. Pratt, 42 Ill. 198; King v. Bardeau, 6 Johns. Ch. 38; Davis v. Parker, 14 Allen, 94; Hepburn v. Auld, 5 Cranch, 262; Winne v. Reynolds, 6 Paige’s Ch. 407; Dyer v. Hargrave, 10 Ves. 507; McQueen v. Farquhar, 11 id. 467; Scott v. Hanson, 1 R. & M. (5 Eng. Ch.) 129; Lewin v. Guest, 1 Russ. (46 Eng. Ch.) 290; Waterman on Specific Per. secs. 499, 502, 503; Kerr on Fraud and Mistake, 361, 363.
   Mr. Justice Scott

delivered the opinion of the Court:

The written contract between the parties which complainants seek to have specifically performed, is set forth in the bill, from which it appears complainants sold to defendants certain real property described definitely as being in the city of Elgin, on which there was a planing mill, and certain machinery particularly described in the agreement, and also the right to use for manufacturing purposes a certain quantity of water running in the Fox river, at and for a certain price to be paid by defendants. As part payment defendants were, by the terms of the agreement, to assume and pay a mortgage on the premises, and give their promissory note payable within five years from the date the contract was to be performed. The contract was to be performed by both parties on the first day of April, 1881. The real estate described in the contract was to be conveyed by complainants to defendants by warranty deed, in fee simple, and a bill of sale of the machinery described in the contract was to be made and delivered with the deed, and possession given. On the first day of April, 1881, complainants tendered to defendants a deed for the lot sold, and also a bill of sale for the machinery, and demanded a compliance with the contract by defendants, which they refused to do.

There is no question made as to complainants’ title to the real estate and the water power mentioned in the contract, nor that complainants tendered at the appointed time a sufficient warranty deed for the property. Defendants placed their refusal to comply with the contract on other grounds, which will be presently noticed. It may be remarked the testimony concerning the matters in contention between the parties is so conflicting, it is exceedingly difficult to ascertain the exact facts. The parties to this transaction seem to be honorable people, and the conflicting statements as to the material facts may arise from honest differences.

So far as the delivery of the possession of the real property is concerned, defendants are in no position to make any just complaint. At the time the contract was made, on the 24th day of December, 1880, the mill situated on the lots was in possession of Smith Hoag. He claimed he was entitled to three months’ notice to surrender the possession, which was accorded to him. Notice was, in fact, given, so that he would have to give possession on the day the parties were mutually obligated to perform the contract. The testimony is full to the point, Hoag was willing to surrender the possession at the appointed time, and no doubt would have done so had he not been assured by defendants that he need not do it on their account. On this branch of the case there is ino real controversy. The matters insisted upon as an excuse for the non-performance of the contract are of no very great importance, and do not seem to affect the value of the property in any considerable degree. Complaint is made the water wheel was out of repair, or perhaps was not in as good condition as it was represented to be. The defect that was found to exist could have been made good at a trifling expense. One witness said it could be done in an hour or two, at a cost of two dollars, and another stated that it would cost fifteen dollars to make the repairs. The condition of the wheel was unknown to complainants, and had their attention been called to it the necessary repairs would no doubt have been made, so there could have been no complaint on that score.

The parties do not agree as to the movable machinery that was agreed to be sold to defendants, and that was to be embraced in the bill of sale that was to be made. Defendants insist they bought other things than those enumerated in the w'ritten agreement. As to what was in fact agreed to be sold, there is a disagreement, and no doubt an honest one. It is claimed defendants bought all the machinery that was in the mill at the time the contract was made, except a new belt. As has been seen, Hoag was in possession of the mill, and claimed the belt and some other things as his own, and that he had the right to remove them. His claim of ownership to many of the articles of machinery was disputed, and there is evidence that affords some ground for the belief that complainants honestly thought they owned all that was in the mill except the belt, and that was expressly excepted from the articles sold, in the agreement. Be that as it may, before the contract was written one of defendants and one of complainants went to the mill to examine the machinery. Defendant made a memorandum of articles of machinery, and it seems it was from that memorandum the agreement was written. At that time defendant said the boys at the mill had told him that other belts did not belong to complainants, and there is evidence that tends to show that defendants were told, previous to signing the contract,- if there were any belts belonging to Hoag, complainants would buy them or furnish new ones. But the evidence will show complainants were allowed no opportunity to supply any articles of machinery, after it was discovered some may have been wanting, to fulfill the contract. Some complaint is also made that Hoag had a carpenter shop on the premises that he insisted he would not remove before the time of contract was to be performed. It occupied a small space, and did in no way affect the profitable use of the mill for the time being. As the evidence is understood, Hoag bad no valid right to keep the shop there for any definite time, and could have been ejected at any time, and no doubt would have been had defendants not expressly told Hoag he need not surrender the premises on their account. There was a platform, and what is called a “lean-to, ” connected with the mill, both of which stood on the land of an adjoining owner; but it does not appear he claimed any interest in the platform itself, or the “lean-to, ” so that fact occasioned no serious detriment.

Conceding, as may be done, there were some articles of machinery in the mill that defendants might fairly insist should go with the purchase, that in fact belonged to Hoag, complainants were allowed no opportunity to supply the wanting machinery. Some time before the day appointed for performing the contract, defendants had absolutely refused to perform it, and told Hoag he could suit himself about moving out of the planing mill. There is a conflict in the testimony as to the cause they assigned for the non-performance of the contract, but none as to the fact they absolutely refused to go on with the contract. Had they pointed out the articles of machinery they insisted they had bought, and when it was ascertained that Hoag claimed some of them, complainants could have supplied such as Hoag claimed to own. There is some evidence tending to show defendants knew that complainants disputed Hoag’s ownership of anything in the mill except a new belt, and that they never pretended to sell. On the trial, after it was disclosed by the testimony of Hoag that he claimed some of the machinery, complainants obtained leave to amend their bill, which they did by stating that they had learned for the first time while the witness (Hoag) was testifying in the case, that he claimed to be the owner of a portion of the machinery in the mill, and while they believe themselves to be the owners of such property, yet if it should be found otherwise they were willing to offer and allow defendants a reasonable compensation therefor. That was done by a decree of the court, and the facts of the case seem to bring it within the rule of law, where compensation’ may be made to the purchaser for that which is wanting, and the party required to perform the contract. The doctrine of the cases in this and other courts is, that although there may be a deficiency in the property sold, if the deficiency is inconsiderable, and does not materially affect the value of the remainder, the purchaser may be compelled to accept compensation for such deficiency, and perform the agreement. (De Wolf v. Pratt,, 42 Ill. 198.) Where the purchaser gets substantially all for which he contracted, he ought not to be permitted to refuse to go on and perform the contract on account of a slight deficiency, when full compensation can be made in money, and where the deficiency is occasioned by no bad faith on the part of the vendor. The rule on this subject is a sound one, otherwise there might be in many cases a failure of justice. It is seldom the facts present a stronger case for the application of that rule of compensation which is often adopted that justice may be done. The testimony is to the effect complainants in good faith believed they were owners of all the machinery they sold to defendants with the mill. The. bill of sale they tendered contained all that was specified in the written agreement, and it seems to have been in the mill ready to be delivered. If, as defendants insist, other machinery not specified in the written contract was, in fact, sold with the mill, and which was afterwards claimed by the occupying tenant, complainants ought to have been allowed, on demand being made upon them to do so, an opportunity to supply it; or, in the absence of such opportunity, it was just they should be permitted, when it was discovered some machinery was wanting, to offer compensation, as was done. In this respect the action of the court was in conformity with equitable principles generally recognized as applying in such cases.

On the whole testimony considered, it is thought the decree is right, and it will be affirmed.

Decree affirmed.


author: Mr. Chief Justice Scholfield

text:
    Candace Sands v. Marcus Sands.
    Filed at Ottawa January 22, 1885.

    1. Witness—credibility—undutiful son, as against the mother. In a contest between an aged and infirm mother and her son, respecting her property, in which he sought to acquire her title to all the property she had, by taking advantage of her affection and confidence, and then deny her a support, and where the proof showed he had used opprobrious language towards her, it was held, that, from his selfish disposition and want of filial regard, the court could not place much confidence in the testimony of the son in a contest of such character.
    2. Mistake of law—when relieved against. Although the rule is, that a court of equity will not ordinarily relieve a party against a mistake as to the law, still, where such mistake is induced by a party taking advantage of it, and the relations are such that the party deceived is dependent upon the party deceiving, or is otherwise peculiarly under his influence, a court of equity will interfere, and protect against any advantage thus obtained.
    3. In this case, a favorite son, taking advantage of his mother’s affection, induced her to make a conveyance of all her estate to him, upon the assurance of the son that the deed was in the nature of a will, and would not take effect in her lifetime. The mother was, at the time, of the age of seventy-three years, and greatly weakened in body and mind from disease and sickness, so as to be incapable of transacting business, and the proof showed the deed was not intended by her to have effect before her death, but was handed to the son to be placed with her papers, and upon her recovery she destroyed the deed. It was held, that the trial court erred in decreeing that the mother execute another deed in place of the one she had destroyed, and in dismissing her cross-bill to have the conveyance made set aside.

      4. Setting aside deed procured by undue influence. Where a person enfeebled in mind by disease or old age, is so placed as to be likely to be subjected to the influence of another, and makes a voluntary disposition of property in favor of that person, the courts will require proof of the fact that the donor understood the nature of the act, and that it was not done through the influence of the donee. Such a conveyance is presumptively void.
    5. Specific performance—repudiation of contract. It is only when the evidence is clear and precise, that a court of equity will decree a specific performance; and when a party has repudiated a contract by denying the other party his rights under the same, he can not enforce its specific performance.
    6. Deed—grantor's control over it until it takes effect. A mother was induced by her son, while she was in a feeble state of mind, to execute a deed to him for her land, including her homestead, under the assurance and belief that it would not take effect until recorded, and the grantee agreed not to procure the same to be recorded during the life of the grantor: Held, the deed would not take effect as to the grantee, and the grantor might destroy the same at pleasure.
    Appeal from the Circuit Court of Whiteside county; the Hon. John V. Eustace, Judge, presiding.
    This was a bill in equity, in the Whiteside circuit court, by Marcus Sands, against Candace Sands, praying that she be decreed to reexecute a deed for a certain forty-acre tract of land, and for general relief.
    The material allegations in the bill are, that oh the third day of June, 1881, the defendant, for a good and valuable consideration, deeded a forty-acre tract of land, which is particularly described, to the complainant; that he took possession of the land under the deed, and made valuable and permanent improvements thereon; that she afterwards, without his knowledge or consent, got possession of the deed before it was recorded, and destroyed it, and that she has refused to execute another deed, although requested so to do.
    The defendant answered, denying the delivery of the deed as alleged. She admits the execution of the deed, but alleges that she was at the time dangerously sick, and her mental faculties and will power affected and impaired by sickness; that complainant, who is her son, by fraud and undue influence induced her to sign the deed; that he induced her to believe, and she did believe, that such deed would not be treated as delivered and valid if she got well, but would remain under her power and control, just like a will, subject to revocation or alteration, if she should so elect. She also sets up and claims a homestead in the tract.
    Eeplication was filed to the answer, and the defendant then filed her cross-bill. The cross-bill alleges, as does the answer, the age, sickness, and consequent .weakness of will and intellect of the defendant at the time of the execution of the deed; that complainant, who is her son, induced her, by false and fraudulent representations, to sign it; that her husband, who was then alive, and living with her, did not join in its execution, and knew nothing in regard to it; that she was induced by the complainant, and the notary public acting under the complainant, to believe, and did believe, that if she recovered from her sickness the deed would be invalid as a conveyance, and of no more effect than a will; that she never delivered it intending that it should take effect as a deed, but simply handed it to the complainant to be placed among her other papers, where she could control it. She also sets up and claims estate of homestead in the property. She alleges that complainant is in possession, and refuses to account for rents and profits, prays that the deed be set aside and removed as a cloud upon her title, and that an account may be taken of rents and profits, and complainant decreed to pay the amount so to be found due. Answer was filed putting in issue these allegations, to which there was a replication.
    Evidence was given on behalf of complainant and defendant, on the issues thus presented, and the court, on final hearing, decreed that defendant, within thirty days, make, execute and deliver to the complainant a good and sufficient deed for said land, conveying to him all right, title and interest which the defendant had in the land on June 3, 1881, “excepting such rights as the defendant may then have had in said land under the laws of the State of Illinois, entitled ‘•Exemptions and Homesteads.’ ”
    The errors assigned properly bring before the court the questions discussed in the opinion.
    Messrs. Bennett & Green, for the appellant.
    Messrs. C. J. & C. C. Johnson, for the. appellee.
   Mr. Chief Justice Scholfield

delivered the opinion of the Court:

John P. Sands, and Candace, his wife, lived on a farm of one hundred and twenty-six acres, in Whiteside county, the title whereof was in him, from some time in the year 1847, and raised thereon a family of eight children, of whom five survived their father. The farm was opened and improved and cultivated, as we infer from the evidence, by the joint labor of all, each contributing, as is usual in such cases, to the extent of his or her ability, in his or her own way. As the children, respectively, attained their majority, they left home, and thereafter conducted business for themselves. Before the year 1873 they had all left home, the father and mother remaining alone upon the farm. Marcus, the youngest child, had learned the carpenter’s trade, and after having had employment at different places, late in the year 1873 was induced by his father and mother to return and live with them on the farm, and work it for a share in the products. In 1874 he was married, and then removed into and dwelt in a house some fifteen rods distant from that occupied by his father and mother, but on the same forty-acre tract of land, and thenceforth he continued to work the farm, as before, for a share in the products. Early in the year 1881, John P. Sands conveyed, through Marcus, to Candace, the forty acres whereon were the houses occupied as dwellings, and which is the tract affected by this controversy. Candace made her will, whether before or after she received this title is not very clear from the evidence, intending thereby to devise this tract to Lelia, the wife of Marcus. About the middle of May, 1881, Candace became sick, and remained sick until in July following. While she was thus sick (on the 3d day of June,) she executed the deed, reexecution of which is now sought to be coerced, and some time afterwards, probably during the same summer, she destroyed this deed. John P. Sands devised the remaining eighty-six acres of the farm to Marcus, by his last will, and died on the 11th day of June, 1883. Marcus has paid no rent, and rendered no account to Candace, at any time. Prior to the death of John P., Marcus accounted to him, and paid rent for the entire farm. Thus far there is no substantial dispute as to the facts; nor is it disputed that when this deed was executed, Candace owned no other property, that no one was present at the execution of the deed save Marcus and the notary taking the acknowledgment, and that no one else, save the wife of Marcus, had knowledge thereof, although, at the time, John P., and an aunt of Marcus, and a servant girl, were all in an adjoining room.

The deed was executed at the instance of Marcus. His wife, at his instigation, informed Candace that the will was not satisfactory. They were afraid the will might be broken by the other heirs, and it was preferred the title should be in Marcus, instead of his wife. At the time the deed was executed, Candace was in her seventy-third year of age, and, beyond all question, quite sick. We think it evident, from the testimony, that apprehension of approaching dissolution was the cause of the execution of the deed at that time. No one had previously spoken to Candace upon the subject of executing the deed, but Marcus and his wife. He took the old deed to the notary, had a deed from her to himself drawn, brought the notary to the house, had him introduced to her presence, and the deed signed by her and acknowledged before the notary, without the knowledge of the other inmates of the house. No opportunity of consultation or advice was allowed or offered. That Candace did not ask or seek such advice only proves how completely she was under the control of Marcus. Here she was, according to his version, absolutely giving away everything that she had, at an age when she could no longer earn a support, and her husband, her natural adviser and protector, only a few feet distant, kept in profound ignorance of what she was doing.

The physician who attended upon Candace says that she had hysteria, and that there were periods during her sickness when she was incapable of transacting business. Other witnesses testify, that in their opinion she was insane on the third of June, and incapable of acting rationally in business matters. It is shown that about that time she made several attempts to commit suicide, was easily provoked to tears, and was very nervous and excitable. The evidence shows, beyond question, that age, and disease had affected her mind to some extent, weakened her will power, and impaired her judgment; and so, at all events, it is, in our opinion, quite clear that she was in a condition to receive, without question, almost any representation as true, if made by one who had her confidence, as Marcus had, and incapable of judging and determining its legal accuracy. She testifies that both Marcus and the notary informed her the deed would be worthless,—“of no more value than a piece of brown paper, ” if she got well; that it could not take effect until recorded, which he promised should not be done while she lived, and that she never delivered it to take effect then as a deed, but that she simply delivered it to Marcus with the request that he would place it among her other papers. It is true he does not admit this, but says the delivery was absolute. He does, however, admit that she requested him not to have it recorded then, nor until after her death, and there is other evidence proving that she had been made to believe that it would not take effect until it was recorded.

An examination of the evidence of Marcus fails to impress us favorably in his behalf. This record shows that he admits that he had called his mother a liar, and, from the evidence, he shows a disposition to deny her all means of support, at a time of life when sheds no longer able to help herself. He is made to appear willing to take advantage of her affection and weakness in order that he may plunder her of what she has, and then leave her to the charity of the law to obtain a support where it may enforce it, for the evidence shows that he has refused to account to her for rents and profits, and that he said to her that if any one must leave the land, it would be her. Much confidence ought not to be, and can not be, placed in the evidence of one thus shown to be so selfish, and so devoid of filial affection and respect, where the direct effect of his evidence is to give him property, or take it from him. With such, the distinctions between right and wrong are not well defined and marked, and the love of truth, as a mere matter of sentiment, is not apt to control in such minds.

Although the general principle is, a court of equity will not, ordinarily, relieve against a mere mistake as to the law, still where the mistake is induced by a party taking advantage of it, and the relations are such that the party deceived is dependent upon the party deceiving, or is otherwise peculiarly under his influence, a court of equity will interfere, and protect against any advantage thus obtained. Bispham’s Principles of Equity, (2d ed.) sec. 188; Kerr on Fraud and Mistake, (Bump’s ed.) 400; Wheeler v. Smith, 9 How. 55.

The mere relations and situations of these parties condemn this transaction. It can not be tolerated that a mother, whose mind is weakened by age and disease, shall be overreached through her affection for a favorite child, and thereby pauperized, and made a charge upon the public or a burthen upon her other children, so long as the rights of third parties are not affected. Parties thus related occupy unequal positions. Naturally, and it may be unconsciously, such a son will have an undue influence over such a mother. The rule is, where a person enfeebled in mind, by disease or old age, is so placed as to be likely to be subjected to the influence of another, and makes a voluntary disposition of property in favor of that person, the courts require proof of the fact that the donor understood the nature of the act, and that it was not done through the influence of the donee. Haydock v. Haydock, 7 Stew. (N. J. Eq.) 570; Huguenin v. Baseley, 2 L. C. in Eq. (4th Am. ed.) notes, 1183-1185; Am. notes, 1192-1194; Bispham’s Principles of Equity, page 296, sec. 235. And so where a son, believing that his father, who had the “blues, ” was incompetent to manage his own affairs, took charge of them, the father passively -submitting, and the son also induced the father to execute to him a deed of his farm, and to transfer all his personal property to him, it was held that the transaction was presumptively void, and it was incumbent on the son to show conclusive good faith. Jacox v. Jacox, 40 Mich. 473.

There is some pretense, here, that the conveyance was for a valuable consideration,—the leaving off, by Marcus, of working at his trade, and his coming upon the farm and working it. The evidence before us does not so clearly and precisely prove such a-contract that we can say it should be specifically enforced, and it is only when the evidence in such cases is clear and precise, that a court of equity will decree specific performance. But if such a contract was made, it is clear, beyond dispute, that it contemplated the use of the land, or rent of that part not personally occupied and used by Candace, during her lifetime, and Marcus has repudiated the contract by denying her rights, and neglecting to pay her rent. This court held in Frazier v. Miller, 16 Ill. 48, that such subsequent denial of the rights of the grantor, under a similar contract, would justify its rescission by- a court of equity. The same doctrine was re-announced in Oard v. Oard, 59 Ill. 46, and it was there said that if the rescission of the contract in cases of such character could not be referred to any other head of equity jurisdiction, it would be proper to presume that it was, in the first instance, made with a fraudulent intent. Jones v. Neely, 72 Ill. 449, recognizes the same doctrine.

Candace Sands, according to the clear preponderance of this evidence, never intended to invest a present title, and did no act which she intended as an absolute delivery of the deed. She was induced by Marcus and the notary to believe, and did believe, the deed would not take effect until recorded, and as to him, therefore, it must be held it did not take effect, and might be destroyed at her pleasure.

We think the court should have denied relief on the original bill, and granted relief on the cross-bill, and for the error in that regard the decree below is reversed, and the cause remanded, with directions to the court below to now so decree.

Decree reversed.


text:
    Mary E. Stoltz et al. v. Henry Doering.

      Filed at Ottawa January 22, 1885.

    1. Descents — bastards—whether they may take by inheritance. At common law a bastard has no right of inheritance, being regarded as Alius nullius; and this rule is in force in this State. A bastard in this State can not inherit from its father unless he shall have married the mother, and acknowledged the child as his own, but the child may, under the statute, inherit from its mother.
    2. Same—as to lands—by what laws the inheritance governed—conflict of laws. The descent and heirship of real estate are exclusively governed by the laws of the country within which the property is actually situated. So person can take, except those who are recognized as legitimate heirs by the laws of that country, and they take in the proportions and the order which those laws prescribe. Although a bastard may be entitled in Germany, where born, to inherit from his father, he can not inherit real estate from him situate in this State.
    3. Marriage—what constitutes marriage—at common law. In the absence of any statutory prohibition, a marriage at common law may be had per verba futuro cum copula; but the copula must be in fulfillment of the agreement to marry, or in consummation of such a contract. The fact that sexual intercourse occurs after the agreement to marry at some future day, is not of itself sufficient to establish the marriage relation. To be availing, the parties, at the time of the copula, must then have accepted each other as husband and wife.
    4. Limitation—under acts of 1835 and 1839. Under the Limitation law of 1835, seven years’ possession of land by actual residence thereon is not of itself sufficient to create the bar. The occupant must also show a connected title, deducible of record, in connection with the possession.
    5. Under the Limitation law of 1839, actual possession of land and payment of all taxes thereon for seven years successively, but without color of title, afford no defence to an action by the true owner.
    Appeal from the Circuit Court of DeKalb county; the Hon. C. W. Upton, Judge, presiding.

      Mr. Harry Rubens, and Mr. Edward Roby, for the appellants :
    A charge of illegitimacy must be supported by direct and irrefutable evidence. It must be conclusively proved. Canjolle v. Ferrie, 23 N. Y. 90.
    No evidence of reputation in a community can be received to show illegitimacy. The evidence of a servant in the family as to reputation in the family is inadmissible. Reputation, if proved, can only be proved by a member of the family, or by proving the declarations and statements of blood relations. Berkely Peerage case, 4 Campb. 419; Hubback on Succession, 654-656; 1 Phillips on Evidence, (C., H. & E. notes,) 270, 273; 2 id. 279-281; 1 Greenleaf on Evidence, sec. 103, note 1.
    The testimony denying the marriage of John Doering to the mother of defendant, is wholly inadmissible. 1 Greenleaf on Evidence, sec. 103, note 1; 1 Phillips on Evidence, (C., H. & E. notes,) 270-273; 2 id. 279-281; Hubback on Succession, 654-656; Berkely Peerage case, 4 Campb. 419; Pier v. Pier, 2 H. L. C. 354.
    As to a marriage at common law, and the evidence tending to prove it, see Hebblethwaite v. Hepworth, 98 Ill. 132; Port v. Port, 70 id. 486; Canjolle v. Ferrie, 23 N. Y. 107; 2 Greenleaf on Evidence, sec. 462; 1 Bishop on Marriage and Divorce, secs. 13, 457, note, 1521.
    The letters also show that every member of Doering’s family recognized' the defendant as a legitimate daughter, and they are evidence of that fact. 1 Greenleaf on Evidence, secs. 104-106; Berkely Peerage case, 4 Campb. 416.
    The long continued adverse possession of the land by the husband, under claim of right, is a bar to the action. It is not necessary that any deed should pass, but only that there should be an adverse claim, which has a color of right or title for its support. Chickering v. Failes, 26 Ill. 507; Griffin v. Marine Co. 52 id. 145.

      There was the actual residence thereon, and title dedueible of record from the United States, sufficient under the statute of 1835. Martin v. Judd, 81 Ill. 488; Jandon v. McDowell, 56 id. 53.
    Counsel also contended that as Mrs. Stoltz was made and treated as a legitimate heir of her father, and as such succeeded to his estate in Germany, she should also take as his heir here. Ross v. Ross, 129 Mass. 243; Miller v. Miller, 91 N. Y. 315; Miller v. Williams, 66 Ill. 91; Keegan v. Geraghty, 101 id. 26.
    Mr. A. J. Hopkins, Mr. N. J. Aldrich, and Mr. F. H. Thatcher, for the appellee:
    Foreign laws, when relied on, must be pleaded and proved. This is the only way they can be noticed. Chumasero v. Gilbert, 24 Ill. 294; Chenot v. Lefevre, 3 Gilm. 640; Smithy. Whittaker, 23 Ill. 367; Palmer v. Marshall, 60 id. 290.
    Under the English law, illegitimate children can not take by descent, for they have not, in law, inheritable blood. 4 Kent’s Com. 436; 1 Blackstone’s Com. 458; Blacklaws v. Milne, 82 Ill. 505.
    The law of descent is the subject of legislative control until the estate becomes vested by death. Cooley’s Const. Lim. 359.
    The descent and heirship of real estate are governed exclusively by the law of the country in which it is actually situate. Story on Conflict of Laws, secs. 483, 434, 448, 454, 430; Wharton on Conflict of Laws, sec. 296; United States v. Crosby, 7 Cranch, 115; McCormack v. Sullivant, 10 Wheat. 203; Lingen v. Lingen, 45 Ala. 412.
    As to common law marriage, reference is made to. Bishop on Marriage and Divorce, (6th ed.) sec. 262. That copula does not make them married, see Peck v. Peck, 12 R. I. 435; Cheeney v. Arnold, 15 N. Y. 345; Duncan v. Duncan, 10 Ohio St. 181; Holmes v. Holmes, 1 Abb. 525.

      When marriage is inferred from cohabitation, the pre-. sumption may be destroyed by evidence of the subsequent and long continued separation of the parties. 2 Greenleaf on Evidence, sec. 464.
    There is no bar shown under any statute of limitations, there is no color of title under the act of 1839, and there is no connected chain of title deducible of record under the act of 1835.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action of ejectment, brought by Henry Doering, in the circuit court of DeKalb county, against Mary Elizabeth Stoltz, and Jacob Stoltz, her husband, to recover a certain tract of land in DeKalb county, which was owned originally by John Doering, who died intestate, seized of the land, in I860. The cause was tried, by agreement, before the court, without a jury, and judgment was rendered in favor of the plaintiff, and defendants appealed.

Mary Elizabeth Stoltz, as appears from the evidence, was the daughter and only child of John Doering, who died seized of the land; but she was an illegitimate child, and upon this ground, plaintiff, who was a brother and next of kin of deceased, contends that the daughter can not inherit from the father, and that he, as sole heir of his brother, is entitled to recover. The plaintiff resides in Germany. The defendants were residing in this country at the time John Doering died, and upon his death they went into the possession of the land, and have remained in possession ever since, paying all taxes, and claiming to be the owners.

It appears from the evidence, that in 1831 John Doering, then a young unmarried man, resided in the province of Hesse Darmstadt, Germany; that he became acquainted with a girl residing at the same place, named Mary Webber. These parties became attached to each other, and were engaged to be married, and in April, 1832, Mary Webber gave birth to a female child,—now Mary Elizabeth Stoitz, the defendant in this action. John Doering was the father of the child. He never, however, married Mary Webber, but, in 1834, left Germany and came to this country. He settled in DeKalb county, where, in 1845, he purchased the land in question. It is plain, from the evidence, that Doering always, after the birth of Mary Elizabeth, recognized and treated her as his daughter. In 1849 he had her brought to this country at his own expense, and'introduced her to his friends and acquaintances as his child and daughter. Indeed, in the record of births and baptisms of the evangelical diocese of Mdichs, in Germany, where Doering and Mary Webber resided, and where the child was born, John Doering acknowledged, in a public manner, in writing, over his own signature, that he was the father of the child.

The public acknowledgment of John Doering, in. connection with the action taken in the parochial church by the mother and father of the child, it is contended, gave her the right of inheritance under the laws of the province in Germany where they resided, and as she became entitled to inherit there, she became the heir of John Doering, and as such entitled to inherit his property wherever situate. Conceding that the defendant, under the laws of the province in Germany where she was born and baptized, could inherit property situated in that province from John Doering, does that fact confer upon her the right of inheritance here ?

At common law a bastard has no right of inheritance. In the eyes of the law, bastards are not regarded as children for civil purposes. Blackstone, (vol. 1, page 458,) in discussing the rights of bastards, says: “The rights are very few, being only such as he can acquire, for he can inherit nothing, being the son of nobody,' and sometimes called Alius nullius, sometimes films populi.” In Blacklaws v. Milne, 82 Ill. 505, it was held that the common law rule which excluded illegitimate children from inheriting, was in force in this State. Under our statute in force at the time of the death of John Doering, a bastard could not inherit from a father unless such father had married the mother of the child, and acknowledged the child as his own. Under section 65, chapter 109, Gross’ Statutes of 1869, a bastard might inherit from the mother, but this statute confers no right of inheritance from the father.

The first question then to he determined is, whether the rights of the defendant, Mary Elizabeth Stoltz, are to be determined by the laws of the province of Germany, where she was born and baptized, or are those rights to be determined by the laws of this State, where the land involved is located. The general rule in regard to the descent of real estate is, that it is governed by the law of the country where it is located. Story on Conflict of Laws, states the law on this subject (sec. 483,) as follows: “The descent and heir-ship of real estate are exclusively governed by the law of the country within which it is actually situated. No person can ¡ take except those who are recognized as legitimate heirs by ¡ the laws of that country; and they take in the proportions' and the order which those laws prescribe. This is the indisputable doctrine of the common law.” The rule announced by Story we believe to be in harmony with the current of authority on the subject, as may be seen by an examination of some of the many cases bearing on the question. Lingen v. Lingen, 45 Ala. 412; Barnum v. Barnum, 42 Md. 251; Smith v. Dorr, 34 Pa. St. 126; Harvey v. Ball, 32 Ind. 99; Wharton on Conflict of Laws, secs. 560, 561, 273; McCormack v. Sullivant, 10 Wheat. 203; City Ins. Co. of Providence v. Com. Bank of Bristol, 68 Ill. 350; Keegan v. Geraghty, 101 id. 26.

If we are correct in our view of the law on-this question,, then, although the defendant may have been entitled to in-, herit from her father under the laws of Germany, where she j was born, had he died leaving property in that country, it j does not follow that the defendant can inherit the property in this State, as real estate situated here must descend in conformity to the laws of our State, and not as provided by the laws in Germany,—a foreign country.

It is also claimed by counsel for appellants, that Mrs. Stoltz is the legitimate child of John Doering, from a common law marriage with Mary Webber per verba ele futuro cum copula. There is no doubt from the evidence but Doering ~and Mary Webber had agreed, between themselves, that they would, at some future day, become husband and wife, and while this contract was in existence, sexual intercourse was had and the child begotten; but we do not understand that this constituted a common law marriage. It is true that no ceremony was required, but the parties must actually give themselves to each other in the marriage relation. An agreement to marry in the future is but an executory contract, and, as has been well said in Cheeney v. Arnold, 15 N. Y. 345, whatever indiscretions the parties may commit after making such promises, they do not become husband and wife until they have actually given themselves to each- other in that relation. See, also, Duncan v. Duncan, 10 Ohio St. 181; 1 Bishop on Marriage and Divorce, (6th ed.) sec. 259; Robertson v. State, 42 Ala. 510; Hebblethwaite v. Hepworth, 98 Ill. 126; Port v. Port, 70 id. 484. In the absence of a statutory prohibition a marriage at common law may be had per verba futuro cum copula, but the copula must be in fulfillment of the agreement to marry, or in consummation of such a contract. The fact that sexual intercourse occurs after an agreement to marry at some future day, is not of itself sufficient to establish the marriage relation. To be availing, the parties, at the time of copula, must then accept each other as husband and wife. This was not done here.

The defendants also set up in bar of the action the Limitation law of 1835, which, in substance, requires an action of this character to be brought within seven years, where a person is in possession by actual residence, having a connected title, in law or equity, dedueible of record, from this State or the United States. The defendants were in the possession of the land for eleven years, by actual residence. Thus far they may claim the benefit of the statute. But they failed to show a connected title, dedueible of record, in connection with possession, and hence they are in no position to claim the benefit of the statute. They also claim under the act of 1839, which bars an action brought to recover lands where the premises are in the possession of a person under claim and color of title, made in good faith, and who shall, for seven successive years, continue in possession, and pay all taxes assessed on the lands. The parties were in possession and paid the taxes for more than the required period to establish a bar under the statute; but the difficulty is, they were not in possession under claim and color of title. They were in possession under no title whatever. Had they been in under a deed, or writing of any description purporting to convey the title to the land, they might claim the protection of the statute; but such is not the case. Or, if Mrs. Stoltz had in law been entitled to an interest as an heir of John Doering, she might invoke the benefit of the statute; but she was not, and. while in the possession of the land she occupied the same position that a person would who was in no manner related to Doering, if such a person had gone into the possession of the land after his death.

The judgment of the circuit court will be affirmed.

Judgment affirmed.