author: Mr. Justice Magruder

text:
    The People, for use of Logan County, v. William Toomey et al.

      Filed at Springfield September 27,1887.

    1. COUNTY clebk—compensation. Where the salary and clerk hire of a coun*y clei'k have been fixed by the county board, his office being ono in which fees are provided for, his compensation can only be paid out of the fees actually collected, and can not exceed them. He can only receive the amount so fixed in case the fees of his office equal that sum each year, and ü such fees exceed that amount, he is bound to pay the excess into the county treasury.
    2. A county clerk, after receiving from fees earned and collected the amount of his salary, clerk hire and other expenses, is not entitled to an allowance by the county board of the fees due him from the county for work done for the county. It would be an idle ceremony to pay him out of the treasury and then order him to pay the same back.
    3. OOTTCIAL bond—liability of surety. A surety is not to be held beyond the precise terms of his contract. His liability is strictissimi juris, and can not be extended by construction.
    4. Where the term of an officer is for a definite or fixed period, the surety on his bond is only liable for his faithful performance of his duties during that period. If the bond is silent as to the length of the term, but the statute under which the bond is given fixes the term, the statute, in that regard, will be taken as a part of the contract.
    5. Same—liability on county clerk’s bond. The condition of a county clerk’s bond was, that he should “perform all the duties which are or may be required by law to be performed by him as county clerk of the said county of L., in the time or manner prescribed by law or to be prescribed bylaw.” After the expiration of his term of office the clerk made a report to the county board, showing in his hands, of fees collected, the sum of $414 over and above his compensation as fixed by the board, and his clerk hire and other expenses of the office, which amount he paid intq the county treasury.. At the same time he presented a bill for services rendered to the county in his capacity as clerk, which the board allowed, and on the order issued therefor he drew a considerable sum, to which he was not entitled. Failing to pay this sum back into the county treasury, suit was brought on his official bond: Held, that his sureties were not liable • for his failure to pay such sum of money.

      Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Logan county; the Hon. George W. Herdman, Judge, presiding.
    Mr. Egbert Humphreys, State’s Attorney, and Mr. Oscar Allen, for the appellant:
    A county officer in this State must account with the supervisors after he goes out of office, and can not fully account before, and he, of course, must account fully.
    Sureties are liable for the due performance of an officer’s duties, even such as it may be incumbent on him to perform after the expiration of his term of office. Murfree on Official Bonds, p. 424, sec. 631.
    A sheriff received redemption money after his term expired, and his sureties were held liable. Elkin v. People, 3 Scam. 207.
    A county clerk fraudulently countersigned and filled up a warrant that had been signed in blank, and drew the money, and it was held that his sureties were liable. People v. Treadway, 17 Mich. 480.
    A county treasurer did not cancel paid orders. They were afterward stolen and came into innocent hands, and a loss ensued. His sureties were held liable, not because the loss occurred during his term, but because the loss was the result of misconduct during his term. Johnson County v. Hughes, 12 Iowa, 360.
    A sheriff refused to turn over property after his term had expired, and his sureties were held liable. Baker v. Baldwin, 18 Conn. 131.
    A deputy collector, continuing to hold during successive terms,, gave but one bond. His sureties were held liable for deficiency in the last term, because it was the evident intention. Delacour v. Caulfield, 1 Irish Com. Law, 669.
    The sureties of a circuit clerk were held hable for money received by him after his term expired, under order of court previously made. State v. Bird, 6 Jones’ Law, (N. C.) 62. Of similar effect are Tyree v. Wilson, 9 Gratt. 39; State v. Muir, 20 Mo. 303.
    In the earliest and leading case upon similar subjects, (that of Lord Arlington v. Merrick, 8 Saund. 403,) the whole case seems to be made to rest upon evident intention,—that there was no misconduct during the time which the bond was evidently intended to cover.
    Can it be doubted that in this case Toomey himself "is liable for the amount sued for, and upon his bond? If the principal is liable on the bond, then his sureties are also liable. Seaver v. Young, 16 Vt. 662.
    Messrs. Blinn & Hoblitt, and Messrs. Beach & Hodnett, for the appellees:
    The liability of sureties is strictissimi jivris, and can not be extended by construction or enlarged by the acts of others. People v. Pennock, 60 N. Y. 426; McClusky v. Cromwell, 1 Kern. 593 ; Supervisors v. Bates, 17 N. Y. 242; Loan Association v. Nugent, 11 Vroom, 215.
    The violation of the condition of the bond, must have been during the term of the office. People v. Pennock, supra; Mayor of Rahway v. Crowell, 11 Vroom, 207; Insurance Co. v. Clark, 33 Barb. 196 ; Gilbert v. Luce, 11 id. 91.
    The surety can only be held liable for official acts done or omitted. Gerber v. Ackley, 37 Wis. 44; State v. Mann, 21 id. 695.
    The surety’s liability can not be extended so as to embrace acts done after the term of office has expired. Society v. Johnson, 1 McCord, 41; Wright v. Russell, 3 Wils. 530; Baker v. Parker, 1 T. R. 287; Shange v. Lee, 8 East, 434; Water Works v. Harpley; 6 id. 507; Commissioners of Public Accounts v. Greenwood, 1 Eq. 450; Montgomery v. Hughes, 65 Ala. 201; Loan Association v. Nugent, 40 N. J. L. 207; Offutt v. Commonwealth, 10 Bush, 212; Florence v. Richardson, 2 La. Ann. 663; Governor v. Coble, 2 Dev. Law. 489; Holloman v. Langden, 7 Jones’ L. 49; Overacre v. Garrett, 5 Lans. 156; Bryan v. United States, 1 Black, 635; McLain v. People, 85 Ill. 209; Phillips v. Singer Manf. Co. 88 id. 305; McIntyre v. Trustees of Schools, 3 Bradw. 77.
    A surety on an official bond is not liable for losses caused by the misconduct of the obligee. Murfree on Official Bonds, secs. 755, 788; O'Donohue v. Simmons, 31 Hun, 267; Brandt on Suretyship, 457; Pickering v. Day, 3 Houston, 474; Connell v. Crawford, 59 Pa. St. 196.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is an action of debt, brought by the People, for the use of Logan county, against William' Toomey and his sureties, upon the official bond of William Toomey as county clerk of Logan county from December, 1881, to December, 1882. The following is the condition of the bond:

“The condition of the above bond is such, that if the above bounden William Toomey shall perform all the duties which are or may he required by law to be performed by him as county clerk of the said county of Logan, in the time or manner prescribed by law, or to be prescribed by law, and when he shall be succeeded in office, he shall surrender and deliver to his successor in office all books, papers, moneys and other things belonging to said county, and appertaining to his said office, then the above bond to be void, otherwise to remain in full force.”

By stipulation between the parties, the only question to be determined is the liability of the sureties for the payment of the item of $2133.78, hereafter referred to.

C. M. Knapp was elected as the successor of Toomey in the office of county clerk of Logan county, for the term beginning in December, 1882. Knapp’s official bond is dated November 13, 1882, and was approved by the county judge on November 16, 1882. He took the oath of office as county clerk on November 13, 1882. The commission issued to him by the Governor bears date December 1, 1882, and authorizes him to perform the duties of the office “on and after December 4, 1882.” The board of supervisors of Logan county met on Monday, December 4, 1882, at one or two o’clock in the afternoon, and Knapp assumed his duties as county clerk at that time. W. 0. Jones then appeared before the board as deputy clerk, appointed by Knapp. Jones says in his testimony : “I was appointed deputy under Mr. Knapp the first thing in the morning when Mr. Knapp took possession, December 4, 1882. I think the board met at two o’clock of that day, with Mr. Knapp as clerk.”

The circumstances here recited, and other evidence in the record, show clearly that Toomey’s term of office had ended by one or two o’clock in the afternoon of Monday, December 4, 1882, and at and from that time Knapp became and was county clerk of the county, duly qualified, and installed in office. ■ . .

Under section 10, of article 10, of the constitution, and the statute passed in pursuance thereof, the board of supervisors of Logan county had, in 1877, fixed the salary of the county clerk for the ensuing year, etc., .at $1600 per annum, and clerk hire at $1200 per annum. It is admitted that Toomey . was only entitled to $2800 for salary and clerk hire for the last year he was in office, from December, 1881, to December, 1882. As his office was one “where fees are provided for,” (Const, art 10, see.. 10,) his compensation could only be paid out of the fees actually collected, and could not exceed them. • He could only receive the $2800 in ease the fees of his office . equalled that amount éach year, and if such fees exceeded that amount, he was bound to pay the excess into the county . treasury.

The statute, (Hurd’s Eev. Stat. 1885, chap. 53, sec. 51, p. 631,) requires of every county officer who is paid by fees, that, 1 in a book to be kept for that purpose, he shall keep a full, true and minute account of all the fees and emoluments of his office, designating in corresponding columns the amount of all fees and emoluments earned, and all payments received on account thereof, and showing the name of each person or persons paying fees, and the amount received from each person, and shall also keep an account of all expenditures made by him on account of clerk hire, stationery, fuel and other expenses; that he shall, on the first days of each June and December, make to the chairman of the board of supervisors, etc., a return, in writing, of all the fees and emoluments of his office, of every name and character, which said report shall show the gross amount of the earnings of said office, the total amount of receipts, of whatever name or character, and all necessary expenses for clerk hire, stationery, fuel and other expenses, for the half year ending at the time of such report, etc., together with the amount of his salary, etc.; such reports shall designate the service for which such amounts have been charged or received, in such manner that the same may be identified with the account thereof upon the books of such officer, and shall show, fully, the amount earned and the amount received. It is made the duty of the county board to carefully audit and examine every such report, and if, after deducting from the gross amount shown to have been collected the amount allowed for salary and expenses, there is a balance of such fees in the hands of the officer, the board shall order him to pay such balance to the county treasurer. These reports are required to be verified by the affidavit of the officer making them.

A report was made by Toomey of his receipts and disbursements for the six months from June to December, 1882, and was submitted to the board of supervisors on December 4, 1882, and referred to the committee on finance. This report is not in the record. It was lost. The proof shows, however, that it was an exact copy of the cash book. It showed all fees collected and disbursements made during the last six months of the term, and that there was in Toomey’s hands, after giving him credit for his salary and expenses, a surplus of fees amounting to $414.23. On December 6, 1882, the board of supervisors adopted the report of the finance committee, finding Toomey’s report to be correct, and then made an order directing him to pay the $414.23 to the county treasurer, which he did December 11, 1882.

"While the report so made by him showed the fees collected, it did not show, as it should have done, the fees earned and not collected. (Daggett v. Ford County, 99 Ill. 334.) On December 2, 1882, Toomey made out an itemized bill against Logan county for fees due him from the county, for extending taxes, making statements for the -auditor and treasurer, issuing county orders, recording proceedings of board, per diem in county court, etc., amounting in the aggregate to $2133.18. To this he attached a certificate, under his hand and the seal of his office, certifying “that the above bill, by me this day rendered, is just and correct, and remains due.” No affidavit was attached. The total of the bill represented fees earned and not collected. No part of the sum of $2133.18 appeared in the report. This bill or statement of the items of the sum of $2133.18 was presented to the board on Monday afternoon, by Knapp, Toomey’s successor, at the same time when the report showing a balance due of $414.23 was presented. It was referred on December 4, 1882, to the committee on claims. This committee examined it, and reported to the board that the amount of it should be paid to William Toomey. Thereupon, the board of supervisors, on or about December 6, 1882, made an order directing the county clerk, 0. M. Knapp, to draw an order on the county treasurer for the sum of $2133.18, payable to William Toomey, which he did. On December 9, 1882, Knapp delivered this order to Toomey, who presented it to the county treasurer, obtained the money, and has never repaid it.

We do not think that the sureties on Toomey’s bond are liable for the payment of the $2133.78.

The money came into the hands of Toomey after his term of office had expired, and after his successor had become qualified, and had taken possession of the office and assumed Ihe performance of its duties. A surety is not to be held beyond the precise terms of his contract. His liability is ■strictissimi juris, and can not be extended by construction. Where the term of the officer is for a definite or fixed period, ihe surety is only liable for his faithful performance of his -duties during that period. This is clearly so where the bond itself specifies the period. If the bond is silent as to the length of the term, but the statute under which the bond is .given fixes the term, the statute, in that regard, will be regarded as a part of the contract. In this case the sureties contracted that Toomey should “perform all the duties which are or may be required by law to be performed by him. as -county clerk of the said county of Logan, in the time or manner prescribed by law, or to be prescribed bylaw.” They -did not contract for his discharge of obligations which he might .assume, or duties which might be imposed upon him, after he became a private individual. The board of supervisors directed Knapp, the county clerk, to pay to Toomey, who was no longer county clerk, the sum of $2133.78, to which he was not entitled when he was county clerk, and to which he was still less entitled after he ceased to be county clerk. His sureties are not responsible for his failure to pay over moneys received by him under such circumstances. Murfree on Official Bonds, secs. 88, 215, 421; Brandt on Suretyship and Guarantee, secs. 139, 140; Bryan v. United States, 1 Black, 140; United States v. Nicholl, 12 Wheat. 505; Placer County v. Dickerson, 45 Cal. 12; South Carolina Society v. Johnson, 1 McCord, 41; Lord Arlington v. Merrick, 3 Saund. 403; Mayor of Rahway v. Crowell, 40 N. J. L. 207; People v. Pennock, 60 N. J. 421; Gilbert v. Luce, 11 Barb. 91; McCluskey v. Crom well, 11 N. Y. 593; City Council of Montgomery v. Hughes, 65 Ala. 201; Offutt v. Commonwealth, 10 Bush, (Ky.) 212.

It is true that Toomey made out a statement of the fees earned by him for extending the taxes, etc., upon a separate sheet of paper, and did not make it a part of his report showing his receipts and disbursements, but the board had his report and his statement before them at the same time. Of the fees collected and earned by him for the last six months, he was only entitled to what was due him for salary and expenses. All the balance belonged to the county. His report showed that he had been once paid, and owed the county, for money actually in his hands, the sum of $414.23. He was not entitled to any part of the $2133.78, representing fees earned by him. If these fees had been due from third persons, it would have been the duty of his- successor to collect them. This appears from the fourth clause of the 51st section of the Fees and Salaries act, which provides, that where there is a balance of salary due an officer at the end of his term, and the amount of fees collected by him, and in the hands of the treasurer, is insufficient to pay such balance, “it shall he paid "to him out of the fees earned by him during his term of office, when afterwards collected by his successor.” But the fees set out in the statement were not due from third persons; they were due from the county itself, for work done for the county. As there was no unpaid balance due to Toomey on account of salary or expenses, it would have been an idle ceremony for the board to order either Toomey or Knapp to draw the amount of these fees, which already belonged to the county, from the county treasury, and then order the same to be paid back into the county treasury. The board should simply have approved Toomey’s statement of his earnings from the county, and should' have allowed the matter to rest there. Instead of doing so, they not only directed Knapp to give Toomey an order on the county treasurer for the amount of these fees, but they failed to make any order directing Toomey to pay them back into the treasury. If it was proper to order him to pay over $414.23 of fees collected and retained by him, it was improper to permit him to receive fees earned but not yet collected, especially as he was not ordered to turn them back into the treasury, where they belonged.

Although the bond in this case runs to the people, it belongs, as matter of fact, to the county of Logan. This suit is brought for the- use of Logan county. Logan county is the real obligee in the bond. The obligee in the bond, through its representative, the board of supervisors, has improperly, and through a want of due care and prudence, taken a sum of money out of the county treasury which ought to have been allowed to stay there, and placed it in the hands of Toomey, who had no right to it, after the expiration of his term of office; and now that he refuses to pay it back, such obligee seeks to collect it from those who were sureties on his official bond while he was in office. To enforce its collection from them, under the circumstances, would "not be right. Murfree on Official Bonds, secs. 755, 788.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Shope

license: Public Domain

text:
    Maria Anna Lehndorf et al. v. Allen Cope.

      Filed at Mt. Vernon September 28,1887.

    1. Covenants fob title—limited to the estate actually conveyed. The •estate granted by a deed is neither enlarged nor restricted by the covenants for title therein contained or implied. Such covenants are but an assurance of the title granted, no matter to whom the grant is made. If the grantee takes but a life estate, the covenants assure that estate; and if he takes an estate in fee tail, the covenantor warrants to him but a life estate, and the remainder in fee to the one who will take upon the termination of the life estate.

      2. Construction of contracts—its object and purpose. The legitimate purpose of all construction of instruments in writing is to ascertain the intention of the party or parties making the same; and when this is-determined, effect will be given thereto accordingly, unless to do so will violate some established rule of .property.
    3. Same—giving effect to every part of the instrument. As it can not be-presumed that words or terms in a conveyance were used without a meaning, or having some effect given to them, therefore, if it can be done consistently with the rules of law, that construction will be adopted which will give effect to the instrument and to each word and term employed, rejecting none as meaningless or repugnant.

      í. Same—determining the natwre and quantity of estate granted by deed. The nature and quantity of the interest or estate granted by a deed are to-be ascertained from the deed itself, and are to be determined by the courts, as a matter of law. "While the intention of the parties will control in the construction of the deed, it is the intention, apparent and manifest in the instrument, construing each clause, word and term involved in the construction according to its legal import, and giving to each thus construed its legal effect.
    5. Estates in uand—estate less than a fee—express words of limitation not essential. In order to create an estate less than a fee, it is not necessary there shall be express words of limitation, either under the statute, (section 13 of the Conveyance act,) or at common law. It is sufficient for that purpose if it appear', by necessary implication, that a less estate is intended to be granted.
    6. Same—estate tail, as at the common law, becomes a life estate under the statute. Under our statute, (section 6 of the Conveyance act,) in all cases where, by the common law, any person might have become seized in fee tail of any lands, such person, instead of becoming seized thereof in fee tail, will take an estate for his life only, and the remainder will pass in fee simple to the person or persons to whom the estate tail would, on the death of the first grantee or donee, have passed at common law.
    7. Same—life estate, with remainder over—a deed construed. A deed of a tract of land to A, a married woman, “and her heirs by her present husband, B,” conveyed to her what would have been an estate tail by the common law, but under our statute an estate for her life, only, with remainder in fee to her heirs by B, or those to whom the estate was immediately limited. It was held, the words, “to her heirs by her present husband, B,” meant, to the issue of her body by her then present husband begotten.
    8. In such case, if no issue of the body of the immediate grantee had been living at the date of the deed, or of its delivery, she would have taken only a life estate, and the -remainder would have been what is known as “a contingent remainder;” but there being two of such children in esse, the remainder vested immediately in them in fee, subject to the possibility of being divested pro tanto, if the grant should be opened to let in after-born children of the same description.
    9. Same—mortgage by grantee for purchase money—as embracing a less estate than that conveyed. The owner of land conveyed the same to a married woman, “and her heirs by her present husband,” she having at the time two such heirs, and she and her husband at the same time executed to the grantor a mortgage of the premises to secure a part of the purchase money not paid, evidenced by the wife’s notes, and the mortgagee sold and assigned the same: Held, on bill by the assignee to foreclose, that the mortgage was limited to the life estate of the wife, and created no incumbrance on the remainder which vested in the heirs.
    10. While it is true that a deed for land, and a mortgage of the same date taken for the purchase money, are but parts of a single transaction, nevertheless, one estate may he conveyed by the deed and a wholly different interest by the mortgage. If the vendor sees fit to take security by mortgage upon less than the whole land sold, or upon less than the estate conveyed, the contract will be valid, and the residue of the land or estate will pass by the deed, unincumbered by any lien in his favor.
    11. Vendor's men—-its nature—waiver by taking other security. A vendor’s lien is the creation, of courts of equity, based upon the equitable consideration that when the vendor has taken no security and done no act showing an intention to waive the lien, the presumption in such case is, that it is not the intention of the parties that one should part with and the other acquire the title without payment of the purchase price. The lien exists independent of any contract, is personal to the vendor, and whenever it appears that the vendor did not rely upon the lien at the time of the sale, or has subsequently abandoned it as security, it will be held to be waived.
    12. Where a vendor conveys to another a life estate only, with remainder to the heirs of the grantee in fee, and takes back a mortgage from the holder of the life estate to secure the payment of the unpaid price, the grantor will have no vendor’s lien upon the premises sold for the purchase money.
    13. Same—not assignable. The lien created by implication in favor of a vendor, is personal as to him, and is not assignable or transferable, even by express contract between the vendor and an assignee. It can be enforced only by the vendor himself.
    Writ of Error to the Circuit Court of Marion county; the Hon. Amos Watts, Judge, presiding.
    James W. Humphrey, being the owner of the lands in controversy, bargained with Maria Anna Lehndorf for the sale thereof, for $5100, and, joined by his wife, on the 3d day of August, 1883, by statutory form of warranty deed, in considoration of that sum, did “convey and warrant to Maria Anna Lehndorf, and her heirs by her present husband, Henry Lehndorf,” said lands. Two thousand dollars of the purchase money was paid in hand, and two notes of Maria Anna Lehndorf were given, for $1550 each, payable, with interest, to said Humphrey, in twelve and twenty-four months, respectively. At the same time, and as part of the same transaction, a mortgage in statutory form was duly executed and delivered by said Maria Anna Lehndorf, and Henry Lehndorf, her husband, upon the same lands, to secure the said two notes,—all being done simultaneously, and as parts of the same transaction. James W. Humphrey afterwards sold, indorsed and delivered the said notes to Allen Cope, defendant in error.
    On the 26th day of December, 1885, said Maria A., joining with her two sons, Paul and Albert Lehndorf, executed and delivered a deed conveying to Elizabeth Wirtz said lands. The first deed and mortgage mentioned were duly recorded August 8, 1883, the latter, December 26, 1885. The notes remaining unpaid after due, Cope, assignee thereof, filed this bill to foreclose the said mortgage, making Maria A. Lehndorf, Henry Lehndorf, her husband, Paul, Albert and William Lehndorf, (children of Maria.and Henry,) and Elizabeth Wirtz, defendants.
    The bill, after alleging the sale of the land by Humphrey to Mrs. Lehndorf, and making the deed, mortgage and notes exhibits, sets up the foregoing facts, and then proceeds, at 'the request of said Maria A. Lehndorf, the said James W. Humphrey, and his wife, Sarah F. C. Humphrey, conveyed and warranted said lands and real estate to her, by the name and style of Maria Anna Lehndorf, and her heirs by her present husband, Henry. Lehndorf, by a deed of conveyance, bearing date the said 3d day of August, 1883, duly recorded the 8th .of August, 1883. ...
    “Complainant submits that said Maria Anna Lehndorf can have no heirs while living, and that the words, ‘and her heirs by her present husband, Henry Lehndorf,’ are surplusage in said deed, and that said Paul, Albert and William Lehndorf take no interest, either in law or equity, in said lands and real estate by virtue of the same being incorporated, as aforesaid, in said deed of conveyance. And complainant further shows that said Paul, Albert and William Lehndorf paid nothing of the purchase money of said lands and real estate to said James W. Humphrey, and of any interest of said lands, by virtue of said words or otherwise. Such interest would be subject to the payment of the purchase money of said lands and real estate, and subject to the rights and equities of your complainant to have said lands and real estate subjected to. the payment of said purchase money so secured by said notes and mortgage, as aforesaid. Complainant further shows, that on, to-wit, the 26th day of December, 1885, Maria Anna Lehndorf, Paul and Albert Lehndorf, executed, acknowledged and delivered to one Elizabeth Wirtz, of St. Louis, Missouri, a warranty deed of ■conveyance, purporting to convey and warrant said lands' to said Elizabeth Whiz, which said deed was duly recorded in said Marion county, in record book 41, page 55. Complainant charges, on information and belief, that said conveyance so made by Maria Anna, Paul and Albert Lehndorf, to said Elizabeth Wirtz, was without any consideration; that said Elizabeth Wirtz is the mother of said Maria Anna Lehndorf, and that she paid nothing- for said lands and real estate to said Maria Anna, nor to said Paul or Albert Lehndorf, but said conveyance was made to embarrass in the collection of said notes. Complainant submits that if said conveyance of said lands and real estate to said Elizabeth Wirtz was in good faith, the rights of said Elizabeth Wirtz acquired by such conveyance would be subject to the rights and equities of complainant in and to said lands and real estate.”
    The bill prays for appointment of a guardian ad litem for Paul, Albert and William Lehndorf, who are alleged to be minors; that an account be taken of the amount due eomplainant on the mortgage; that in default of payment, sufficient of the land be sold to pay the amount found due; that the rights and equities of the defendants be decreed subject to the equities of complainant, and that they be barred, etc., of the equity of redemption.
    The defendant Maria A. Lehndorf answered, admitting the making of the deeds and mortgage, and that the notes mentioned, and seemed by the mortgage, were part of the purchase money; admits that it was agreed between her and said Humphrey, that in making the conveyance of said land the deed should be made to Maria Anna Lehndorf and her heirs by her present, husband; that said deed was so made for the purposes in the deed expressed, and with the intent to so convey the land, and not otherwise; denies that she agreed to purchase and take a conveyance to herself, but that the deed was intended to convey said lands to her and her heirs by her husband, Henry Lehndorf, and not otherwise; avers that the deed conveyed an estate for life to her in said lands, and the fee therein to her heirs of said Henry, and that Humphrey well knew the same before and at the time of the execution of said deed; admits making notes as alleged, and mortgage to secure the same, but denies that it was upon any interest in the land not owned by her; that said mortgage was intended to be only of her life estate, and Humphrey well knew the same, and accepted the same with such knowledge and intent; avers that if complainant is owner of the notes, he held with notice that Maria, Anna had purchased and taken by said deed only a life estate in said lands at and before he purchased said notes of said Humphrey; that Humphrey had taken and accepted a mortgage on her life estate for the security of said notes with full knowledge, and his assignee took no other or greater interest or right than he possessed; denies the right of complainant to other equitable relief; avers that Humphrey waived right to lien in equity for the purchase money by taking security by mortgage of life estate, and that upon the assignment of the notes he received pay and satisfaction of the purchase money, and thereby any right of equitable relief for the purchase money he might have had was lost; avers that her children by said Henry became and were owners in fee of said lands as tenants in common, subject to the life estate in herself, and subject, also, to be opened to let in other child or children that may be born to the body of said Maria by her present husband, Henry Lehndorf, etc.
    The defendants Paul, Albert and William Lehndorf, by their guardian ad litem, demurred, to the bill, and the demurrer was overruled by the court, and defendant Wirtz was defaulted. Decree was rendered foreclosing the mortgage, finding the interest of all the defendants subject thereto, and decreeing accordingly.
    The only evidence introduced, other than the deeds, notes and mortgage mentioned, was that of the scrivener who drew the deed and mortgage of August 3, 1883, who identified the-notes as those given at the time for the purchase money of the land; and it was shown, also, that Paul, Albert and William Lehndorf were the children of said Maria by her husband, Henry Lehndorf; that all were minors; two of them were born prior to the 3d day of August, 1883, and one since. The defendants below prosecute this writ of error.
    Mr. J. B. Kagy, and Messrs. Casey & Dwight, for the plaintiffs in error:
    The vendor’s lien can not be invoked in this case. Moshier v. Meek, 80 Ill. 79.
    The deed from Humphrey and wife to Maria Anna Lehndorf conveys a life estate only. Starr & Curtis’ Stat. chap. 30, secs. 6, 14; 1 Washburn on Real Prop. chap. 4, secs. 30-33, 38-41; Coke on Littleton, 206; 2 Preston on Estates, 485 ; 2 Blackstone’s Com. (Chitty’s ed.) *114, 115; Voris v. Sloan, 68 Ill. 588; Beacroft v. Strawn, 67 id. 28; Hosmer v. Carter, 68 id. 98; Blair v. Vanblarcum, 71 id. 290; Frazer v. Board

      of Supervisors, 74 id. 282; Cooper v. Cooper, 76 id. 57; Baker v. Scott, 62 id. 86.
    The mortgage given by the said Maria Anna Lehndorf to Humphrey was upon her life estate only.
    The conveyance to Elizabeth Wirtz by Maria A. Lehndorf should have been sustained.
    Mr. Henry C. Goodnow, for the defendant in error:
    Every estate granted, etc., shall be deemed a fee simple estate, unless limited by express words, 'or when such estate is not granted. Conveyance act, sec. 13.
    There are no express words of limitation in this deed. The word “heirs” is a word of limitation and not of purchase, and as no person can have heirs while living, the words, “and her heirs by her present husband,” are surplusage. 1 Hilliard on Real Prop. p. 351, sec. 19; Cooper v. Cooper, 76 Ill. 57; Baker v. Scott, 62 id. 86.
    There is no habendum clause in the deed defining the estate granted. It results, from the statute, by implication, an estate in fee passed. Riggin v. Love, 72 Ill. 553.
    The words, “heirs of his body,” are words of limitation and not of purchase. Brislain v. Wilson, 63 Ill. 175; 2 Washburn on Real Prop. (2d ed.) 268, 269.
    . The words, “heirs by her present husband, Henry Lehndorf,” mean no more than “heirs of the body,” and the words, “heirs of "the body,” are held to be words of limitation and not of purchase. Beacroft v. Strawn, 67 Ill. 28; Baker v. Scott, 62 id. 87.
    The words, “heirs by her present husband,” mean a class of persons to take in succession, from generation to generation, by descent, and not by purchase. Beacroft v. Straum, 67 Ill. 28.
    There being no habendum clause in this deed to limit or define the extent or certainty of the estate granted, we can only look to the words of the deed for the extent and certainty of the estate granted.

      The rules of construction require that all of the language of the grant shall be considered, and effect given to it, unless so repugnant or meaningless that it can not be done. Cooper v. Cooper, 76 Ill 60; Brownfield v. Wilson, 78 id. 467.
    The mortgage and deed must be taken together to find what these parties intended to do. They understood the fee in the land was held to secure the purchase money.
    The children take, if they take anything, as volunteers, and hence have no equities against Humphrey or his assignee, Cope.
   Mr. Justice Shope

delivered the opinion of the Court:

It is contended by defendant in error, that by the deed of August 3, 1883, from Humphrey and wife to “Maria Anna Lehndorf and her heirs by her present husband, Henry Lehndorf,” Mrs. Lehndorf took a fee simple estate in the lands conveyed, while plaintiffs in error contend that she thereby took a life estate only, with remainder in fee to her children by said Henry Lehndorf.

The deed being statutory in form, contains no habendwm limiting or defining the estate taken by Mrs. Lehndorf, and although the deed must be held equivalent to one containing full covenants, (Elder v. Derby, 98 Ill. 228,) it is manifest that the estate granted would not be enlarged or restricted thereby. Such covenants are an assurance of the title granted to the grantees, whomsoever they may be. If Mrs. Lehndorf took the fee, the covenants assure that estate to her; if she takes an estate in tail, the covenantor warrants to her a life estate, and the remainder in fee to whomever would take upon determination of her estate. Therefore, as said by counsel for defendant in error, the determination of the question depends upon a construction of the granting clause of the deed, which is, that the grantors, in consideration, etc., “convey and warrant to Maria Anna Lehndorf, and her heirs by her present husband, Henry Lehndorf, of,” etc., the lands in controversy.

The legitimate purpose of all construction of a contract or other instrument in writing, is, to ascertain the intention of the party or parties in making the same, and when this is determined, effect will he given thereto, unless to do so would violate some established rule of property. The nature and quantity of the interest granted by a deed are always to be ascertained from the instrument itself, and are to be determined by the court as a matter of law. The intention of the parties will control the court in construction of the deed, but it is the intention apparent and manifest in the instrument, construing each clause, word and term involved in the construction according to its legal import, and giving to each thus construed its legal effect. Washburn on Real Prop. 404; Bond v. Fay, 12 Allen, 88 ; Lippett v. Kelley, 46 Vt. 516 ; Price v. Sisson, 13 N. J. Eq. 178; Caldwell v. Fulton, 31 Pa. St. 489; Wager v. Wager, 1 S. & R. 374.

It can not be presumed that the parties used words or terms in the conveyance without intending some meaning should be given them, or without an intent that the effect legitimately resulting from then: use should follow; hence, if it can be done consistently with the rules of law, that construction will be adopted which will give effect to the instrument, and to each word and term employed, rejecting none as meaningless or repugnant.

We should, perhaps, first notice the contention of counsel for defendant in error, that by virtue of section 13 of the Conveyance act, (as there is here no express' limitation upon the estate of Mrs. Lehndorf, and as no one can have heirs while living,) the words following the grant to her should he rejected, and the deed read as if to her only. This arises from a misapprehension of the statute. The evident purpose of the section referred to, was to change the rule of the common law, whereby, if a conveyance, etc., was made without words of inheritance, an estate for the life of the grantee only was created. The section is as follows:

“Sec. 13. Every estate in lands which shall he granted, conveyed or devised, although other words heretofore necessary to transfer an estate of inheritance be not added, shall be deemed a fee simple estate of inheritance, if a less estate be not limited by express words, or do not appear to have been granted, conveyed or devised, by construction or operation of law.”

It is not necessary, as seems to be supposed, that to create a less estate than the fee, there should be express words of limitation, either under the statute or at common law. It is sufficient for that purpose if it appear, by necessary implication, that a less estate was granted. In an early case, (Frogmorton v. Wharrey, 2 W. Black. 728,) where there was a surrender of copyholds by R., who was seized in fee, to M., his then intended wife, and the heirs of their two bodies, etc., Wiliiot, C. J., delivering the opinion of the court for himself, Bathurst, Gould and Blackstone, JJ., after holding, on authority of Gossage v. Taylor, Styles, 325, and Lane v. Pannel, 1 Roll. 438, that the children thus begotten took as purchasers and not as heirs, says, the only difference in the cases is, that in those cases “the wife had an express estate for life, and here not. But upon legal principles the cases are just alike. An estate ‘to A, and the heirs of his body,’ is the same as an estate ‘to A for life, remainder to the heirs of his body.’ ” By operation of law, the added words created, in the case cited, in M. a life estate only, with remainder to the hens of herself and R., as purchasers. So the grant “to A, and the heirs of his body,” by operation of law creates an estate tail in A, remainder in tail. And this has been the uniform holding.

The sixth section of the Conveyance act provides, that in cases where, by the common law, any person or persons might, after its passage, become seized in fee tail of any lands, etc., by virtue of any gift, devise, grant or conveyance “hereafter to be made,” or by any other means whatsoever, such person or persons, instead of being or becoming seized thereof in fee tail, shall he deemed and adjudged to be and become seized thereof for his natural life only, and the remainder shall pass, in fee simple absolute,.to the person or persons to whom the estate tail would, on the death of the first grantee or donee, pass, according to the course of the common law, by virtue of such gift, devise or conveyance. It is apparent, if at common law, by virtue of this conveyance, Mrs. Lehndorf would take an estate' tail, whether an estate tail general, or an estate tail special, the thirteenth section would be inoperative, and by virtue of section 6 she would become seized of an estate for her life, with remainder in fee to those to whom the estate is immediately limited.

Estates tail came into general use upon constructidn by the courts, of the statute de donis conditionalibus, (13 Edw. 1, c. 1, sec. 1,) and while no extended discussion will be necessary, an examination sufficient to determine if this case falls within the rules creating an estate tail, will be proper.

To create an estate in fee simple, at common law, thq grant must be to the grantee and his heirs, without limitation, to take from generation to generation, in the regular course of descent. A tenant in fee simple is defined by Blackstone to' be, “he that hath lands, tenements or hereditaments, to hold to him and his heirs forever, generally, absolutely, simply; without mentioning what heirs, but referring that to his own pleasure or the disposition of the law.” (Com. 11, 104.) Estates in fee tail were of two kinds: Estates tail general, as where the grant was to one and the heirs of his body generally, so that his issue in general, by each and all marriages, are capable of taking per formam doni; and estates tail special, where the gift or grant was restricted to certain heirs, or class of heirs, of the donee’s body. (Blackstone’s Com. 11, 113, 114; 4 Kent’s Com. 11; 1 Washburn on Beal Prop. *66.) In a grant of lands, words of-inheritance were necessary, at common law, to the creation of a fee, but in the creation of a fee tail estate more was required. There must also be words of procreation, indicating the body out of which the heirs were to issue, or by whom they were to be begotten. The ordinary formula was to make the gift or grant to the donee, as the grantee was called, “and the hems of his body,” or “her heirs upon her body to be begotten,” or “upon her body to be begotten by A;” but there was no especial efficacy in these particular forms of words, and it was requisite, only, that in addition to limitation to “heirs,” the description of the heirs should be such that it should appear they were to be the issue of a particular person. Blaekstone’s Com. 11, 114; 1 Washburn on Beal Prop. *72; 2 Preston on Estates, 478, and eases cited; 2 Jarman on Wills, 325.

The necessary words of inheritance are not here wanting to create a fee simple, or fee tail, at common law. The grant is to Mrs. Lehndorf and her heirs, and if the description had stopped here, a fee simple estate would, at common law, have passed by the deed. The grant is not, however, to her and her heirs simpliciter, but to her and her heirs by a particular husband, and by necessary implication excludes the construction that heirs generally were intended. Heirs, generally, would include not only those designated, but children she may have or have had by any other husband, as well as collaterals. Who, under the law, could be her heirs by her present husband except her children by him begotten ? If the word “begotten” had been introduced before the preposition “by,” so as that it would have read, “her heirs begotten by her present husband,” etc., it would have been no more certain that the issue of her body was intended. If it be conceded that equivalent words, which, by necessary implication, describe and designate the particular body out of which the heir should proceed, would suffice to create an estate tail at common law, which seems to be done by the cases and text-writers, then the conclusion seems irresistible that such an estate was here created. “Her heirs by her present husband,” could be no other than the issue of her body by him begotten. No other person, or class of persons, would answer the description, and they would and do fill it in every particular.

This precise point was ruled in Wright v. Vernon, 2 Drewry, 439, where it is said: “The effect, therefore, of a limitation ‘to the right heirs of Sir Thomas Samwell, by a particular wife, forever,’ is precisely the same as that of a limitation to the heirs of his body by that particular wife, forever. The words, ‘of his body,’ are not in the least degree necessary to this construction of the term ‘heirs,’ or ‘right heirs,’ because without their insertion the full and absolute effect of them is involved in the description, ‘his right heirs, by Mary, his second wife,’ which description limits the meaning of the term ‘heirs’ to heirs special, procreated by himself, as effectually and as necessarily as the words, ‘of his body,’ could do if they had been added.” This was a case, it is true, arising upon a devise, in respect of which much greater latitude of construction is allowable than in the construction of deeds; but that consideration can in no way affect the weight of the authority upon the matter being considered.

It follows, that Mrs. Lehndorf would, at common law, be seized, by virtue of this conveyance, of an estate tail special in the lands conveyed, and therefore, under the statute, would take an estate for her life only, and that, by virtue of the statute cited, the remainder vested in fee in her children by her said husband, in esse at the time of making the deed, subject possibly, however, to be opened to let in after-born children of the same class. If no issue of her body “by her present husband” had been then living, the remainder would have fallen under Fearne’s fourth and Blackstone’s first definition ■ of a contingent remainder, i. e., when the remainder is limited “to a dubious and uncertain person.” But here, at least two of the children who would, under the statute, take the fee simple estate upon the determination of the life estate, were in being when the deed was executed and delivered, and the remainder vested immediately in them in fee, subject to the possible contingency of being divested pro tanto, if opened to let in after-born children answering the same description. The person to whom the remainder is limited is ascertained, the ■event upon which it is to take effect is certain to happen, and although it may be defeated by the death of such person before the determination of the particular estate, it is a vested remainder. “It is the uncertainty of the right of enjoyment which renders a remainder contingent,—not the uncertainty of its actual enjoyment.” 2 Blacks. Com. 169; Fearne on Rem. 149; Kent’s Com. 203; 2 Sandf. C. B. 533; Hawley v. James, 5 Paige, 467; Moore v. Lyons, 25 Wend. 144.

But it is said that the rule in Shelley’s case should be applied ; but it will be seen that its application will produce the same result. . That rule, as formulated in 2 Jarman on Wills, page 332, will best illustrate the position here. It is: “The rule simply is, that where an estate of freehold is limited "to a person, and the same instrument contains a limitation, either mediate or immediate, to his heirs, or the heirs of his "body, the word “heirs’ is a word of limitation,—i. e., the ancestor takes the whole estate comprised in this term. Thus, if the limitation be to the heirs of his body, he takes a fee tail; if to his heirs general, a fee simple.” The rule operates upon "the words of inheritance without affecting the words of procreation, so that if, in-any case, the words, “heirs of his body,” ■or other equivalents sufficient to create an estate tail, are used, a fee tail is vested in the first taker, and not the fee simple, as seems to be supposed. Therefore, if the rule be applied, Mrs. Lehndorf would, at common law, be seized of an estate in fee tail, and brought directly within the terms of section 6 of the Conveyance act, before cited. When, therefore, Mrs. Lehndorf, joined by her husband, mortgaged the land to Humphrey, it was not in her power to incumber the fee, and that estate passed to and vested in her two children then living, unincumbered by the lien created by the mortgage.

But it is said this mortgage was given for the purchase money of the land, and that in some way, not clearly defined in argument, a lien therefore exists upon the estate conveyed. If it is intended thereby to insist that a vendor’s lien exists, the answer to such a contention would be three-fold. A vendor’s lien upon real estate is a creation of the courts of equity, upon the equitable consideration that where the vendor has taken no security for the purchase money, and done no act showing an intention to waive the lien, it is presumed that it was not the intention of the parties that one should part with and the other acquire the title without payment of the purchase price of the land. It exists, if at all, independent of any contract, is personal to the vendor, and whenever, from thé circumstances, the' court can infer that he did not rely upon the lien at the time of the sale, or subsequently abandoned it as security, it will be held to be waived. (Pomeroy’s Equity; Cowl V. Varnum, 37 Ill. 184; Richards v. Leaming, 27 id. 432.) Thus, taking an independent security will discharge the lien. Conover v. Wmren, 1 Gilm. 432.

It is manifest that when the deed, and mortgage back to secure the purchase money, are parts of a single transaction, as in this case, one estate may be conveyed by the deed and a wholly different interest conveyed by the mortgage,—as, if the fee be granted by the deed, and an estate for life or for years mortgaged. The power of the parties to so contract can not be questioned. If the vendor saw proper to take security by mortgage upon less than the whole land, or upon less than the estate conveyed, for the unpaid purchase money, there is no reason why it would not be a valid contract, and the residue of the land or estate pass by the deed, unincumbered by any lien in his favor.

But the bill in this case is for foreclosure of the mortgage given to secure the purchase money, and proceeds upon the theory that in equity the mortgage attached to and became a lien upon the fee which is alleged to be in Mrs. Lehndorf, and is to enforce the security under the contract,—a theory wholly inconsistent with the preservation of a vendor’s lien. Again, as before said, the lien created by implication in favor of the vendor is personal to him, and is not assignable or transferable, even by express contract between the vendor and an assignee. It can be enforced only by the vendor himself. (Richards v. Leaming, supra; Keith v. Horner, 32 Ill. 524; McLaurie v. Thomas, 39 id. 291; Markoe v. Andras, 67 id. 34; Moshier v. Meek, 80 id. 79.) This is an established rule in equity, and is an insuperable obstacle to the enforcement of a vendor’s lien by defendant in error. Such liens are secret, often productive of gross injustice to others dealing in respect of the property to which they attach, and courts of equity will not extend them beyond the requirements of the settled principles of equity.

But it is said that the deed and mortgage being parts of the same transaction, the title would not vest as against the purchase money, and the principle so often announced by this and other courts, that in such case there is no interregnum between the effective operation of the deed and mortgage in which judgment liens and the like can attach, as against the mortgage security, is sought to be invoked. The doctrine can have no application to the facts of this case. It is true, as so often held, that in the case stated, the making and delivery of the deed and mortgage being simultaneous, and parts of one transaction, are to be construed as one act; eo instanti upon the delivery of the deed the mortgage becomes effective, and the title passes to the mortgagor, subject to the lien of the mortgage. The mortgage attaches to the title conveyed in 'its transmission from the vendor to the vendee, and, obviously, is effective in arresting the passage of the title so far only as it reconveys the estate to the original vendor. Therefore, if, by deed, a life estate is conveyed to one and the fee to another, and, as part of the same transaction, the life estate is mortgaged by the grantee thereof to the grantor, the mortgage would attach to the life estate, and the life tenant would take subject to the lien, and the fee would pass unaffected by the mortgage.

It is also insisted that the children of Mrs. Lehndorf are-mere volunteers, who paid nothing, and therefore, in equity, their interest should be subjected to the payment of this purchase money. We know of no recognized principle of equity by which the case can be affected by that consideration. If it be conceded they paid nothing, it is apparent defendant in error has no such equity as should prevail against their title. It is not enough that they are not purchasers for value,—the party questioning their title must show himself legally or equitably entitled to the relief. When defendant in error purchased the notes of Humphrey, he had notice, by the record, of the state of the title, and that the mortgagor, in the mortgage given to secure them, had a life estate only in the lands mortgaged. He must be presumed to have known that the mortgage conveyed, subject to the condition of defeasance, the life estate of Mrs. Lehndorf, only, and also that the assignment of the notes, or of the notes and mortgage, could not transfer to him any equitable lien Humphrey might have had upon the fee in the land for the unpaid purchase money.

Two thousand dollars of the consideration was paid at the-execution and delivery of the deed, but by whom does not appear. If the children paid nothing, it was neither unlawful nor immoral for the parents, or either of them, to provide for-the future welfare of their offspring by purchasing this land and having the fee deeded to them, if done without fraud as to existing creditors, and with the knowledge and consent of their grantor. No fraud is alleged or shown, nor is it shown that the mortgage upon the life estate of Mrs. Lehndorf was or is inadequate security for the money remaining unpaid to-defendant in error; but if it was, it could make no difference, as we have seen it is not purchase money in his hands, in any sense, in which a lien can be enforced in equity, otherwise than by a foreclosure of the mortgage upon the estate and interest of which Mrs. Lehndorf was seized,—that is, her life estate in these lands.

It appears by the bill that the deed was made to Mrs. Lehndorf and her heirs by her present husband, etc., at her request. The grantor had full knowledge of the grant, and took back a mortgage to secure the unpaid purchase money, executed by Mrs. Lehndorf and her husband, only. Defendant in error purchased the notes with notice of the facts as disclosed by the record, and if he must lose because of the inadequacy of his security, he can not complain.

The decree of the circuit court will be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Decree reversed.


author: Mr. Chief Justice Sheldon

text:
    The People ex rel. McCracken v. Clovis Soucy.

      Filed at Mt. Vernon June 20,1887.

    1. Appeal—reviewing the facts. It can not be assigned for error in this court that the Appellate Court found the facts of a case to be substantially as presented by the record at a former term. Such finding as to controverted facts is not subject to review in this court.
    2. Same—reciting the facts by the Appellate Court. The provisions of the statute requiring the Appellate Court, in cases where its judgment is the result of its finding the facts differently from the trial court, to recite in its final order or judgment the facts as found, is sufficiently complied with by a recital that the facts are substantially the same as they were in the record when before the court at a former term. The facts will be understood as those relating to the point made on the former hearing.
    3. The Appellate Court, in its final order, found “that the facts are substantially the same as they were in the record when the cause was before this court at a former term, and that the same effect is to be given them as the Supreme Court determined in said cause should be given to them when that court decided the .same,” etc.: Held, that this is not an assumption that this court had settled the questions of fact by its decision. It amounts to a statement that the Appellate Court allows the same effect to be given to the facts which this court did.
    Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.
    Mr. B. A. Halbert, and Mr. M. Millard, for the appellant:
    When the Appellate Court reverses a judgment upon a finding of the facts differently from what the circuit court found them, it must “recite” or set them out in the final order. This evidently means they shall be spread upon the record, in order that this court may see in what respects the findings differ, and upon what basis the judgment of reversal is made to rest. The statute says the facts as found must be recited in the final order. Practice act, sec. 87.
    This court has held in a number of cases that the requirement of the statute is imperative. Tenney v. Foote, 95 Ill. 107; Tibballs v. Libby, 97 id. 552; Coal Co. v. Peck, 105 id. 529; Brown v. Aurora, 109 id. 165; Williams v. Forbes, 114 id. 167; Anderson v. Fruitt, 108 id. 378.
    That court having failed to find the facts, the rule will be applied as laid down in the following cases : Brant v. Lill, 96 Ill. 608; Coal Co. v. Peck, 98 id. 139; Thomas v. Insurance Co. 108 id. 91.
    The Appellate Court was wrong in assuming this court had settled the controverted questions of fact. People v. Soucy, 113 Ill. 109; Chickering v. Failes, 29 id. 294; Elston v. Kennicott, 52 id. 272; Mohler v. Wiltberger, 74 id. 163; Manufacturing Co. v. Wire Fence Co. 119 id. 30.
    Messrs. Koerner & Horner, for the appellee.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

This was an information in the nature of a quo warranto, by the State’s attorney of the county, on the relation of Nicholas McCracken, charging the defendant with unlawful usurpation of the office of supervisor of the village of Cahokia. A judgment of ouster against the defendant, affirmed by the Appellate Court for the Fourth District, was reversed by this court at a former term. (Soucy v. The People ex rel. 113 Ill. 109.) Upon a re-trial in the circuit court there was again judgment against the defendant, which was reversed by the Appellate Court, and this appeal taken by the plaintiff.

The finding of the Appellate Court in its final order was as follows: “That the facts are substantially the same as they were in the record when the cause was before this court at a former term, and that the same effect is to be given them as the Supreme Court determined in said cause should be given to them when said Supreme Court decided said cause and filed its opinion therein, reported in volume 113, Illinois Beports, page 109. And said Supreme Court having therein determined that said facts do not show that the appellant, Soucy, had usurped the said office, we hold the same way herein.”

The errors assigned are, first, the Appellate Court erred in not .setting out the facts as found by it, in the final order; second, in assuming that this court had determined and adjudged the controverted facts in the case; third, that the Appellate Court erred in saying the testimony on the two trials was substantially the same, the fact being it was totally different, that on the last being overwhelming as to the fairness and legality of McCracken’s election.

The provision of the statute is, that if the judgment of the Appellate Court shall be the result of the finding of the facts differently from the trial court, it shall recite in its final order or judgment the facts as found. In the circumstances of the present case, we think there was here a sufficient compliance^ with this requirement of the statute. The question of the election of which one, McCracken or Soucy, turned upon the counting of three certain ballots, which, instead of being deposited at the front window, where the other ballots were,, were received at the back door of the polling place, and not put in the ballot-box. Cotmting these three ballots, Soucy was elected by one majority. Attempt before was made by the relator to show that these ballots were deposited by unqualified voters; hut this court held he ought not to he permitted to do so, as it appeared that it was through the force' and violence of the relator or his adherents at the polls that these three persons were prevented from voting at the front window, where their qualifications to vote might have been passed upon by the judges of election, and were compelled to' go to the hack door and have their ballots received there by one of the judges; and when the Appellate Court say, in their finding, that the facts are substantially the same as they were ■ before, we understand them to find this fact of prevention of voting at the regular place by force and violence.

As to the Appellate Court being wrong in assuming that this, court had settled the controverted questions of fact by' its former decision, we do not perceive that there is any such an assumption, hut that the Appellate Court allow the same legal effect to the facts which this court did.

As to the alleged error in the Appellate Court’s finding that the facts are substantially the same as they were before, that is not subject to our review.

The judgment of the Appellate Court is final as to the matters of fact. The judgment of that court must be affirmed.

Judgment affirmed.


author: Mr. Justice Sheldon

text:
    The Board of Education of the State of Illinois v. Julia A. Bakewell.

      Filed at Springfield January 24, 1887,

      1. Normal University—whether a State institution or a, private corporation. The Normal University located at Normal, in this State, is not a public State institution, but is a private eleemosynary corporation, and it can not be deprived of its property by mere legislative enactment intended to transfer the same to another without due process of law.
    2. Estoppel—of private corporation to assert its real character in that regard. Where the charter of a private corporation contemplates its establishment and maintenance by charitable donations, the acceptance of appropriations by it from the State, even though made by the State under the belief that such corporation is a State institution, will not operate to estop it from asserting its -rights of property as a private corporation.
    3. Constitutional law—“due process of law”—power to legislate the property of one into the hands of another. The phrase, “due process of law,” in the constitutional clause that “no person shall be deprived of life, liberty or property without due process of law,” means, in due course of legal proceedings according to those rules and forms which have been established for the protection of private rights. An arbitrary act of the legislature taking one person’s property and giving it to another, is not “due process of law.”
    4. Same—exercise of judicial powers by the legislature. To ascertain whether a deed is conditional, and whether there has been a breach of the condition, and to enforce forfeiture for the breach if found to have occurred, call for the exercise of judicial functions which it is not within the competency of legislative power to exercise.
    5. Corporation—franchise, how lost. A private corporation created by the legislature may lose its franchises by a mis-user or a non-user of them, and they may be resumed by the government under a judicial judgment upon a quo warranto to ascertain if there be grounds for a forfeiture, but not by mere legislative enactment.
    6. The franchises and property of a private corporation not organized for pecuniary profit, will not be held to have been lost or surrendered to the State through expressions of mistaken legal opinion by its officials, or by the acceptance of legislative donations to such corporation.
    7. Trust—primate charitable corporation. A private charitable corporation formed for the purpose of receiving donations for the establishment and maintenance of a normal university, and the education of teachers for the common schools, will be a trustee of the property acquired by it, to be held and administered for the special purpose of the charter. In such . case the donors of its property, as well as those to be educated, will have an interest in the faithful execution of the trust, and the courts will not allow an abuse of the trust or the diversion of the trust property to other purposes than those to which it has been devoted.
    Appeal from the Circuit Court of McLean county; the Hon. »’ N. J. Pillsbury, Judge, presiding.
    Mr. James S. Ewing, for the appellant.
    Mr. H. Spencer, Mr. R. E. Williams, and Mr. A. G. Karr, for the appellee.
   Mr. Justice Sheldon

delivered the opinion of the Court:

On February 18, 1857, the General Assembly of this State passed “An act for the establishment and maintenance of a normal university,” whereby certain named persons and their successors were created a body corporate and politic, to be styled “The Board of Education of the State of Illinois.” (Laws of 1857, p. 298.) The 5th section of the act provided for the appointment .of an agent who should visit the cities, villages and other places in the State which might be deemed eligible for the purpose, to receive donations and proposals for the establishment and maintenance of the normal university, and gave power to the board to fix the permanent location of such university at the place where the most favorable inducements were offered for that purpose. On February 25,1858, Edwin W. Bakewell, and Julia A. Bakewell, his wife, who joined in the deed for the purpose of relinquishing her inchoate right of dower, conveyed to the Board of Education of the State of Illinois'forty acres of land immediately adjoining the university grounds. The only condition contained in the deed was the following: “Provided the Normal University, under the control of the said Board of Education of the State of Illinois, shall forever remain where now located.” On February 9, 1860, the said Edwin W. Bakewell and his wife united in another deed to the said Board of Education of the State of Illinois, which, after reciting the execution of the former deed, and the condition therein, contained the following:

“And whereas, the said Edwin W. Bakewell, and Julia A. Bakewell, his wife, are willing and anxious to vacate and annul said condition to said deed, and to make the title of the said Board of Education of the State of Illinois to the said land conveyed by said deed, become and be absolute in fee simple; now, therefore, this indenture, made and entered into this 9th day of February, 1860, by and between the said Edwin W. Bakewell, and Julia A. Bakewell, his wife, and the said Board of Education of the State of Illinois, witnesseth, that they convey a full and complete and unconditional title, in fee simple, in and to the said forty acres.”

The university still remains established where it was at the time of the making of the first deed.

The General Assembly, by a joint resolution passed in 1883, by a majority of a quorum only, directed that the State Board of Education execute a conveyance in fee simple of the said forty acres of land to Julia A. Bakewell. This joint resolution recites, in its preamble, that the land was deeded, in 1858, upon certain conditions to be fulfilled by the board of education, and that said conveyance was conditional, dependent for its validity upon the performance of said conditions, and that the conditions had not been complied with. The board of education refused to comply with the direction, and at its session in 1885-, the General Assembly, again by a joint resolution passed by a majority of a quorum, declared that the title to said forty acres of land should be and was thereby declared vested in Julia A. Bakewell. A demand for the possession of the property was made upon the board, and refused. Thereupon, Julia A. Bakewell filed a petition in the circuit court of McLean county for a writ of mandamus commanding the Board of Education of the State of Illinois to execute a deed to her for the said forty acres of land. ° The cause was tried by the court without a jury, and a peremptory writ of mandamus was awarded. The defendant appealed.

Two questions are made upon this record: Whether the legislature had the constitutional power to order the conveyance of this forty acres of land to be made to Julia A. Bakewell; and if so, whether it could exercise such power by a joint resolution.

As to the character of the Board of Education of the State of minois, in the respect of its being a public or a private corporation, this ground was most fully gone over by this court in the case of this same Board of Education v. Greenebaum & Sons, 39 Ill. 610, and the character of the corporation declared, and we need in this regard but to refer to that decision. That was a proceeding brought against this hoard of education to enforce a mechanic’s lien for work and labor done upon the university building. The contract was made in 1860, and the 'decision rendered in 1864. It was said in the opinion: “The principal objection to the recovery in this case, and the one most pressed, is, that the hoard of education is a corporation founded by the State, and supported by the funds of the State, and that its property is the property of the State, and therefore not subject to a mechanic’s lien. To determine the force of this objection, the act of 185T must be considered, and the additional act of 1861.” The latter act was one entitled “An act to refund the interest on the college or university fund, and appropriate the same for the use of the State Normal University.” After recapitulating in detail all the several provisions of these two acts, it was further said:

“From this legislation the plaintiffs in error insist that the property of the Normal University is the property of the State, in which the corporation have no interest whatever; that it was erected for certain public purposes in which the whole State has an interest, and certain rights secured to each county in the State. * * * The counsel also insists that the legislature have the absolute right to repeal or modify the charter, and that, from the act of 1861, it is manifest it was not the intention of the legislature that the property held in the name of the board should be sequestered and sold by creditors to-others,—that the corporation is a mere trustee or agent of the State, to carry out the wishes and intention of the legislature,” etc. And after stating that the court’s view of this legislation differed materially from that of plaintiff’s in error, and that it had not been able to find in either of these acts any provisions on which to base such a view as that of plaintiff’s in error, or any power reserved to the legislature to repeal or modify the charter, the opinion proceeds:

“We regard this university as an eleemosynary institution, founded for the purpose of the gratuitous distribution of knowledge of the art of teaching and conducting common schools, and erected, not at the expense of the State, but of individuals. An agent was to be appointed by the corporation to visit the different cities, villages and other places in the State deemed eligible for the purpose, to receive donations and proposals for the establishment and maintenance of the university, and its permanent location was to be fixed at the place where the most favorable inducements were offered for that purpose. The salaries of the instructors and other employes are fixed by the board, and no appropriation has ever been made from the State treasury for its maintenance. This is one feature which distinguishes it from our State institutions, properly so called, such as the asylum for the blind, etc. It is true the State applied the interest of the university and seminary fund to aid in maintaining this university, but that interest did not belong to the State. The State held it as a mere trustee, under the compact with the general government, and it was specially devoted by that compact to a college or university. The act of 1857 expressly provides that no part of this fund should be applied to the purchase of sites or for buildings for this university. * * * This building, with the ground upon which it was erected, was a free gift by charitable individuals to the corporation, not to the State, and there can not, therefore, exist any obligation on the part of the State to defray any of the expenses attending its erection. Its whole history shows it to be the result of private munificence.” /

As said by Blackstone, corporations of the eleemosynary sort are such as are constituted for the distribution of the free aims or bounty of the founder of them to such persons as he has directed,—of which kind are all hospitals for the maintenance of the poor, sick and impotent, and all colleges. 1 Blackstone’s Com. 471.

Mr. Justice Story, in his opinion in the case of Dartmouth College v. Woodward, 4 Wheat. 669, says: “Another division of corporations is into public and private. Public corporations are generally esteemed such as exist for public political purposes only, such as towns, cities, parishes and counties, and in many respects they are so, although they involve some private interests; but strictly speaking, public corporations are such only as are founded by the government for public purposes, where the whole interests belong also to the government. If, therefore, the foundation be private, though under the charter of the government, the corporation is private, however extensive the uses may be to which it is devoted, either by the bounty of the founder or the nature and objects of the institution. * * * This reasoning applies in its full force to eleemosynary corporations. A hospital founded by a private benefactor is, in point of law, a private corporation, although dedicated by its charter to general charity. So a college,” etc. It is only a public corporation, and not a private eleemosynary corporation, as appellant has been adjudged by this court to be, which is liable to the control of the legislature.

It is conceded by appellee’s counsel, as it must be, that originally appellant was a private corporation, but it is said that after the decision in the Greenebaum case, by the acts of the Board of Education and the legislature of the State, the character of the institution became changed from that of a private corporation to a State institution and a public corporation, under the paramount control of the legislature. The acts of the Board of Education which are relied on in this regard, are three exhibits, “A,” “B” and “C,” to the petition, and the acceptance by the board of appropriations made to it by the legislature. It is said that by these exhibits appellant offered to make surrender of its corporate franchises, and urged the State, through and by the legislature, to accept such surrender, which the legislature did accept.

The second section of the act of 1857, for the establishment and maintenance of the university, provides that “the Superintendent of Public Instruction, by virtue of his office, shall be a member and secretary of said board, and shall report to the legislature, at its regular sessions, the condition and expenditures of the Normal University, and communicate such further information as the said Board of Education or the legislature may direct.”

These exhibits are three reports, made, as stated therein, in pursuance of such requirement, through the secretary of the board, dated, respectively, December 20, 1860, December 17, 1862, and December 14, 1864, and signed, the first by thirteen, the second by ten and the last by seven, of the fifteen members of the board. They make report of the condition and expenditures of the university, contain solicitations of aid from the legislature, and set forth reasons and arguments in support of such solicitations. For example, in the second report is the following r

“The act for the establishment and maintenance of a normal university was passed February 18, 1857. By the various provisions of that act, as also by the provisions of the subsequent act of the legislature passed February 14, 1861, entitled ‘An act to refund the interest on the college and university fund, and to appropriate the same for the use of the State Normal University,’ the Normal University is made a State institution. It is under the sovereign control of the legislature, and the corporation are the trustees and agents of the State, with only such powers as have been conferred by the legislature, and these powers constantly liable to be modified or limited, as was done by the act last mentioned. The corporation have no personal or pecuniary interest in the trust or property, and the corporation may properly be classed among the public eleemosynary corporations of the State.” “The State, by the act of February, 1861, have assumed entire control over all the property acquired by the board, and have forbidden the sale or incumbrance of the property. The State has assumed, and properly, too, complete jurisdiction over the entire institution and property.” “There is already a decree for a mechanics’ lien in the McLean circuit court, in favor of Greenbaum & Sons, for nearly $9000, and they threaten to sell, by virtue of said decree, the property of the board, which is the property of the State. The board possesses no means to prevent judgments and decrees from being had against us, nor a sale of the property, if the property of the State can be sold by virtue of a decree or execution, of which the board entertain great doubt.” “The corporators have no interest in this property. It is the property of the State, as much as is the capítol at Springfield.” “The legislature has seen proper to deprive us of the right to sell or dispose of any property belonging to the State, for any purpose whatever; therefore, the maintenance and destiny of the institution are entirely in the hands of the legislature.” And earnest appeals are made to the legislature fqr financial aid.

This is the purport of all that these reports contain as affording evidence of a surrender of corporate franchises. What is said in them touching the character of the corporation, and the ownership of its property, is but an expression of the opinion of members of the board upon the legal effect of the acts of 185T and 1861, and which is at variance, with the decision of the Supreme Court. Surely this expression of legal opinion by the Superintendent of Public Instruction, and others signing these papers with him, that the corporation was a public eleemosynary corporation, and that its property was the property of the State, did not make them such. These documents, so far from evidencing any surrender of corporate franchises, show the exact reverse. They look to the continuance of the exercise of such franchises, and ask for means to enable the board, with the more efficiency, to carry out "the objects for which the corporation was created. To make of these reports anything of the character of a surrender, or offer of surrender, of appellant’s corporate franchises, is to distort them into something which they palpably are not.

On February 28,1867, the General Assembly passed an act entitled “An act concerning the board of education, and the Illinois Natural History Society,” sections 1 and 2 of which are as follows:

“Sec. 1. The State Normal University, established by an act approved February. 18, 1857, is hereby declared a State institution, and the property, real, personal and mixed, in the hands and standing in the name of the Board of Education of the State of Illinois, is the property of the State of Illinois, and is by said board held in trust for the State.

“Sec. 2. Said board of education is hereby authorized to sell and dispose of the out-lands and lots standing in the name of said board, lying in the counties of Jackson, Woodford and McLean, except the site of the Normal University, and the farm of one hundred acres, more or less, in its immediate vicinity, and to. appropriate the proceeds thereof towards the payment of the appropriations hereinafter named.”

The residue of the act but makes some small appropriations to the univefsity. (Laws of 1867, p. 21.) By the act of 1861 the board was prohibited from selling or incumbering its property.

This act of 1867 is relied on by appellee’s counsel as an acceptance of the surrender of the corporate franchises of appellant, supposed to have been made by the aforenamed reports. ■ The act is as deficient in showing an acceptance of such a surrender, as are the documents named in showing a surrender. There is no intimation whatever in the act, of such surrender or acceptance. The act is a simple seizing of the property of the corporation into the hands of the . State. In the way of this is the constitutional provision that “no person shall be deprived of life, liberty or property without due process of law.” As said in Westervelt v. Gregg, 2 Kern. 209: “Due process of law undoubtedly means, in the due course of legal proceedings according to those rules and forms which have been established for the protection of private rights. Such an act as the legislature may, in the uncontrolled exercise of its power, think fit to pass, is in no sense the process of law designated by the constitution.”

It is a provision of the constitution of 1870, that “the State shall never pay, assume or become responsible for the debts or liabilities of, or in any manner give, loan or extend its credit to-or in aid of, any public or other corporation, association or individual.” (Sec. 20, art. 4.) It is said that since the constitution of 1870 went into effect, there has been appropriated $278,186 for and on account of the Normal University, out of the State treasury, exclusive of the moneys arising from the “Seminary fund“and having accepted these appropriations, the board of education is estopped, by its own acts, to say that it is a private corporation, and that the Normal University, and the property standing in the name of the board, is the property of a private corporation, and is estopped to question the validity of the act of 1867, declaring this property to be the property of the State.” The maldng of these appropriations might be evidence that the legislature, at the time, considered appellant to be a State institution, and that the act of 1867, taking away from it its property and vesting it in the State, was a valid enactment,—and this we conceive is all the significance there is in respect of these appropriations. What appellant indeed was, in the respect of being a State institution or a private corporation, depended upon what the charter of its creation made it to be, and not what the legislature may have, at some time afterward, considered it to be. And so as to the validity of the act of 1867, the legislative opinion in that regard would not govern, hut the constitutional power to pass the law. Appellant’s act of incorporation contemplated that the university was to be established and maintained by charitable donations, and we do not see why it might not well accept these appropriations made to it, and yet stand upon all its chartered rights,—why, from such acceptance, appellant should be held to be narrowed down to that view of its rights which the legislature may be supposed to have entertained when making the appropriations. The appropriations were made as a free gift, untrammeled with any condition, and we can not think that from their acceptance there was the yielding of any right. We perceive no element of estoppel in the matter.

It is said the action of the legislature in the passage of the law of 1867 was not questioned by the board; that, on the contrary, it received the public funds appropriated by that act and since, and must he treated, as between itself and the State, as consenting to the said enactment, even if its consent did not expressly appear. There was never occasion to question such action of the legislature until the time of the present suit. The declaration of the act of 1867, that the State Normal University was a State institution, and that the property of appellant was the property of the State of Illinois, stood a mere harmless declaration upon the statute book, having no effect. But so soon as there was the first attempt to put the declaration in force, by bringing this suit, resistance was' made. From the first, appellant was a constant suppliant before the legislature for pecuniary aid, and there were appropriations made to it from the State treasury, as well before as after the act of 1867. Appellant should not have the title to $200,000 of property,—the amount its reports showed it to possess,—taken away from it upon such a ground as thus suggested.

We have thus adverted to what is insisted upon, as showing that after the decision in the Greenebaum case, by the joint action of the board of education and the legislature, appellant-did become a public corporation, and the Normal University a State institution. We do not find that since that decision-there has been any change effected in the character of this corporation. As it was then adjudged to be a private eleemosynary corporation, we find that it still remains such. It is true that at the time of that decision it was found that no-appropriation had been made to the university from the State-treasury, and that since then there have been made such appropriations. But this we consider an unimportant circumstance. The foundation of the university, which wras the first-gift of the revenues, was private, and this, with the charter, fixes the character of the corporation as private, notwithstanding there may have been subsequent appropriations to it from the State treasury.

The joint resolution directing the conveyance of this land to-Julia A. Bakewell, puts forth in its justification that the conveyance by E. W. Bakewell and wife to the board of education was a conditional conveyance, and that the conditions upon. which its validity depended had never been complied with. To ascertain that a deed is conditional, that there has been a-breach of condition, and to enforce forfeiture for the breach, are judicial functions, which it is not within the competency of legislative power to exercise. This $200,000 of property, the-donations of private donors, was owned by this private corporation of the Board of Education of the State of Illinois by an indefeasible title, of which it could not be divested without the default or consent of the corporators. A private corporation, created by the legislature, may lose its franchises by amis-user or a non-user of them, and they may be resumed by the government under a judicial judgment upon a quo warrantoto ascertain and enforce a forfeiture. (Terrett et al. v. Taylor et al. 9 Cranch, 51.) But we can not recognize that they may be lost, here, by expressions of mistaken legal opinion by members of the board, or by the acceptance of legislative donations made to the corporation. In respect of consent, there is no claim of anything more than an implied consent, by appellant to the deprivation of its property, arising from the reports made which have been alluded to, and the accepting of appropriations to it from the State treasury.

But there can be no pretence of anything of assent to misappropriation of the property. In this respect the board has been strictly faithful to its trust. In their second report above named they say: “And it is the duty of the legislature to see and to know that the great object of the creation of the university is accomplished; that the trustees of the institution faithfully discharge all the duties imposed upon them; that the property of the institution, which is the property of the State, is carefully preserved, not misappropriated or permitted to be sequestered by judgments, nor upon any pretence whatever.”

It would seem to be supposed, here, that the corporation and the legislature together had the right of absolute disposition of this corporate property. But there are other rights and interests than of these bodies here involved. Appellant is but a trustee of this property, to hold and administer it. for the special purpose named in its charter,—the education of teachers for the common schools. The benefactions were devoted by the donors to this special purpose, and can be applied to no other. Appellant stands here as representing the donors, and their rights are to be defended and maintained by it. And so with respect to those who are to derive learning from this source, appellant is a trustee for them also. Beligion, charity and education are, in the law, legatees or donees, capable of receiving bequests or donations in this form. (Dartmouth College v. Woodward, 4 Wheat. 643.) Before the courts, it will not be suffered that there shall be any abuse of the trust, and it will be seen to that the property shall not be diverted from the object to which it was devoted by the donors. To take this property in question from the Board of Education of the State of Illinois, and give it away to Julia A. Bakewell, would be a clear perversion of the trust upon which the property is held. For the accomplishment of this purpose the writ of mandamus is sought, and it should have been denied.

It becomes unnecessary to consider the other question, whether, had the power of the legislature to order the conveyance existed, it was exercised in a legal mode.

The judgment will be reversed, and the cause remanded.

Judgment reversed.

Scott, Scholfield and Shore, JJ., dissenting.