author: Mr. Chief Justice Craig

text:
    Samuel P. Parmly v. Lucy M. Buckley et al.

      Filed at Ottawa May 12, 1882.

    1. Rescission of contract—rights of parties—and what amounts to a rescission. The parties to a contract for the sale of real estate have the right, if they see proper, to cancel and set aside the same; and when the purchaser notifies the vendor, in writing, that he considers himself released from all obligation under the contract, and the vendor immediately gives the vendee notice that he accepts the surrender of the contract, and declares the contract at an end, this will be a valid rescission of the contract of sale, after which no specific performance can be had.'
    2. Agency— corporation bound by acts of its attorney. Where notice of the revocation of a contract with a corporation is prepared and served upon the other party by an attorney of the company, with the knowledge and consent of its manager, the company and its manager will be bound by the act of the attorney, and not be allowed to dispute the attorney’s authority.
    3. Service of notice—on corporation. Notice of the acceptance of a cancellation of a contract served upon a private corporation by leaving the same at the company’s business office with a person acting as its agent, and at the time in charge of its business, is a good service as to the company.
    4. Assignment—assignee of contract of purchase takes subject to its infirmities. The assignee of a contract for the purchase of land takes it subject to its infirmities, and acquires no greater rights than the assignor had, and if the assignor has rescinded the contract so as to prevent him from demanding a specific performance, the assignee will also be precluded from enforcing its performance.
    Appeal from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    Mr. Wallace Heckman, for the appellant :
    There is no power to forfeit unless complainant has been ready and willing at all times to convey according to the terms of the contract. Peck v. Brighton Company, 69 Ill. 200; Bishop v. Newton, 20 id. 178 ; Brown v. Cannon, 5 Gilm. 174; Baker v. Bishop, 45 Ill. 270; Brown v. Beech, 46 id. 311.
    A vendor can not rescind without tendering deed according to the contract, and returning or tendering back payments. Murphy v. Lockwood, 21 Ill. 611.
    An agreement subsequent to the execution of a contract founded on no consideration, is not binding, and will not avail to prevent a specific performance of the original contract. Merkle v. Wehrheim, 32 Ill. 534.
    The contract of purchase being of record July 30, 1880, any such correspondence between the vendors and vendee will not avail against Family, an innocent purchaser for full value, without notice thereof. Cowan v. Loomis, 91 Ill. 132.
    The doctrine is now well settled that courts will recognize and protect the rights of an assignee of a chose in action, whether the assignment be good at law or in equity only. Chapman v. Shattuck, 3 Gilm. 52; Stewart v. Metcalf, 68 id. 110; Daggett v. Norton, 20 id. 333; Walker v. Mulvean, 76 id. 18; Jennison v. Jennison, 66 id. 259.
    Mr. James Goggin, for the appellees :
    Decreeing the specific performance of a contract rests in the sound discretion of the court. Story’s Equity Jur. secs. 742, 769; Alexander v. Hoffman, 70 Ill. 114; Hoyt v. Tuxbury, 70 id. 331.
    The contract was rescinded by the mutual act of the parties. The acceptance of the notice of rescission by the Buckleys, and notice of their assent thereto, terminated the sale.
    The assignee of an equity takes subject to all its infirmities, and can have no greater rights than his assignor, and can not, therefore, be protected as an innocent purchaser. Fry on Specific Performance, 114.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by appellees, against the Rubber Paint Company, of Cleveland, and Samuel P. Parmly, to cancel and remove from the record a certain memorandum of an agreement made by appellees with the Rubber Paint Company, under which certain land was to be conveyed, and which had been transferred by the Rubber Paint Company to Parmly. Answers were put in to the bill, and the defendant Parmly filed a cross-bill, in which he prayed for a specific performance of the contract, and for general relief. On the hearing the court entered a decree dismissing the cross-bill, and granted the relief prayed for in the original bill. „

The contract which complainants sought to cancel was in the following words:

“§100. Received of the Cleveland Rubber Paint Co. §100, deposit of purchase of south forty feet of lot 6, in block 83, school section addition to Chicago. Price to be §11,000, purchaser to assume paying assessment, also taxes of 1880, and to pay B. A. Cummings & Co. 2¡- per cent commission, $10,900, in addition to above $100; to be paid as soon as abstract is furnished showing title.
Chicago, July 9, 1880.
W. T. Buckley,
L. M. Buckley.
“If title can not be made clear, the $100 will be returned on return of this receipt.
W. T. Buckley,
L. M. Buckley. ”

It appears, from the evidence, that about one month before this agreement was made, the Buckleys had mortgaged the property for $4000, which was not due, and when the parties met, a few days after the making of the agreement, to close the trade, it was ascertained that the mortgagee would not accept the mortgage money unless paid a bonus of $500'. The Buckleys refused to pay this bonus, and the Rubber Paint Company refused to take a deed' of the property and assume the payment of the mortgage, as it desired the property clear of all liens, hence the deed was not delivered, and the purchase money was not paid.

In the month of August the Buckleys received the following notice from the Rubber Paint Company:

“Chicago, Ill., August 25, 1880.
“To W. T. Buckley and L. M. Buckley:
“You, and each of you, are hereby notified, that having neglected and refused to carry out the contract made by you on the 29th of July, for the sale to the Rubber Paint Company, of Cleveland, Ohio, of the south forty (40) feet of lot six (6), block . eighty-three (83), .school section addition to Chicago, and you having refused to deliver to said company a deed of said premises in accordance with said contract, and having in' all respects refused to comply with and carry out your agreement, the said company therefore considers itself released from all obligations to you by reason of said contract, and will look to you for payment of all costs, expenses and damages incurred by said Bubber Paint Company on account of said contract.
Bubber Paint Company,
Of Cleveland, Ohio,
By N. C. Brewer, Man’gr. ”
Upon receiving the above notice, the Buckleys made out and delivered to the Bubber Paint Company, at its office, the following notice:
“To the Rubber Paint Company, of Cleveland, Ohio:
The undersigned having received your letter of August 25, 1880, stating that said company considered itself released from all obligations to us by reason of a contract for the purchase of the south forty (40) feet of lot six (6), in block eighty-three (83), school section addition to Chicago, made on the 29th day of July last, we hereby accept the surrender of said contract by you, and we hereby declare said contract terminated and at an end.
Chicago, August 30, 1880.
L. M. Buckley,
W. T. Buckley.”

The parties to the contract of July 9, 1880, had the right, if they saw proper, to cancel and set aside that contract, and the first question to be determined is, whether the two contracting parties have exercised that right.

The notice, bearing date August 25, 1880, signed by the Bubber Paint Company, and served upon the Buckleys, shows a clear intent on the part of the company not to be longer bound by the contract, and a desire that it should be can-celled. Indeed, the company, so far as it was within its power, cancelled the contract. When this notice was received the Buckleys at once notify the company that they accept the surrender of the contract, and declare it terminated and at an end. We are aware of nothing which could have been done by these contracting parties which would have more effectually put an end to the contract than what they did. The purchaser, in effect, said it did not desire to be bound longer by the contract, and declared it at an end. The vendors at once accepted the proposition of the purchaser, and declared the contract cancelled.

It is, however, said that the notice of August 25 was not in fact signed by Brewer, who was the manager of the company, and hence it is not binding on the company. The notice was, however, prepared and served by an attorney of the company, with the knowledge and consent of Brewer, the manager of the company, and hence he is as much bound by what was done as if he had prepared and served the- notice himself. It is also said that the notice given by the Buckleys, that they accepted the surrender of the contract, was not served on the company. The notice was left at the office of the corcqpany with a person who was acting as an agent of the company, and was at the time in charge of the company’s business. This we regard as sufficient.

It is, however, urged that Parmly, who took an assignment of the contract, as he had no actual notice that the contract had been cancelled, is to be regarded as an innocent purchaser, and as such is entitled to be protected. When Parmly took an assignment of the contract he merely stepped into the shoes of the Rubber Paint Company, clothed with such rights and powers as the company had, and no more. The assignee of a contract of this character takes it subject to its infirmities, and has no greater rights than the assignor had. (Fry on Specific Performance, 2d Am. ed. page 114, note 5, and cases there cited.) It follows, as the Rubber Paint Company had no standing in a court of equity -to enforce the specific performance of the contract, the assignee, Parmly, had none.

The decree of the circuit court will be affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Sheldon

license: Public Domain

text:
    Mary B. Lucas v. Hannah L. Lucas.

      Filed at Ottawa May 12, 1882.

    1. Fraudulent conveyance— as to subsequent creditors. A voluntary conveyance by a husband and wife to a party who immediately conveyance to the wife, can not be impeached as fraudulent as against subsequent creditors of the husband, when there is no evidence that the conveyance was colorable, merely, and that a secret trust and confidence existed for the benefit of the husband, or that the deeds were made in anticipation of incurring debts to avoid which the conveyances were made.
    2. Same—-voluntary conveyance not rendered bad by attempting to prove consideration. An attempt on a creditor’s bill to prove a valuable consideration for a conveyance of land, and failure to establish it, will not deprive the grantee of the right to claim its benefit as a voluntary conveyance without fraud.
    3. Curtesy—since 1861, does not vest in wife’s lifetime. Since the Married Woman’s act of 1861, the husband’s right to an estate by the curtesy in the lands of his wife is contingent, and does not vest in the husband until after the death of the wife.
    Appeal from the Circuit Court of Peoria county; the Hon. N. M. Laws, Judge, presiding.
    Messrs. Cooper & Tennery, for the appellant :
    If the wife had in fact, prior to 1869, paid $1800 on her husband’s debts, or more, it did not create the relation of debtor and creditor between them, and consequently such payments could have formed no sufficient consideration for the conveyance from the husband to her. Prior to 1869 the earnings of a wife were the property of her husband. McDavid v. Adams, 77 Ill. 155; Jassoy v. Delius, 65 id. 469; Hazelbaker v. Goodfellow, 64 id. 238; Conner v. Berry, 46 id. 370; McMurtry v. Webster, 48 id. 123; Schwartz v. Saunders, 46 id. 18; Farrell v. Patterson, 42 id. 52; Bear v. Hays, 36 id. 280.

      It requires clear and incontrovertible evidence to establish a gift from a husband to his wife as a matter of intention and fact, and when so shown, if there is no ground to suspect fraud, and it amounts to a reasonable provision, it will be sustained. 2 Story’s Eq. Jur. sec. 1375.
    When the grantee takes as a volunteer, it does not matter whether he intended to aid in a fraud. Tunison v. Chamblin, 88 Ill. 378.
    A voluntary conveyance by a husband to his wife in anticipation of incurring debts, or which is colorable merely, for the benefit and secret use of the grantor, is void as to subsequent creditors of the grantor. Tunison v. Chamblin, 88 Ill. 378; Jones v. King, 86 id. 225; Hook v. Moore, 17 Iowa, 197.
    Messrs. Wilson & Woolsey, for the appellee :
    When existing creditors are not injured, a husband may convey real estate to his wife. Lincoln v. Laughlin, 74 Ill. 11.
    ■ A purchase of land by a husband, with his own means, in his wife’s name, without fraudulent intent, will be sustained as against subsequent creditors. Elder v. Jones, 85 Ill. 384; Indianapolis, Bloomington and Western Ry. Co. v. McLaughlin, 77 id. 275; Haines v. Haines, 54 id. 274; Patrick v. Patrick, 77 id. 585 ; Bradford v. Riddell, 55 id. 261; Yazel v. Palmer, 81 id. 82; Moritz v. Hoffman, 35 id. 553; Jones v. King, 86 id. 225.
    Since 1861, the husband’s right by the curtesy in his wife’s land is contingent, depending upon his surviving her. Beach v. Miller, 51 Ill. 206.
   Mr. Justice Sheldon

delivered the opinion of the Court :

This was a proceeding of interpleader, by the appellee, Hannah L. Lucas, in a foreign attachment suit brought by appellant, as administratrix of the estate of David Lucas, deceased, against George L. Lucas, to the October term, 1881, of the Peoria county circuit court, the writ of attachment having been levied upon certain lots in an addition to the city of Peoria, as the property of said George L. Lucas. Appellee, the wife of George L. Lucas, by her interpleader claimed ownership in fee of the lots. A trial was had before the circuit court, without a jury, of the issue as to the ownership of the property, which resulted in a finding and judgment in favor of appellee.

The lots were conveyed by George L. Lucas and Hannah L., his wife, to John 0. Yates, by warranty deed, dated October 11, 1873, for the' expressed consideration of $1000, and on the same day, for the same expressed consideration, Yates made a quitclaim deed of the lots to said Hannah L. Lucas, the appellee. The claim of appellant is, that this conveyance to Hannah L. Lucas was fraudulent as to the creditors of George L. Lucas. The evidence in the record tending to show this, is of a quite meagre kind. The debt, which is the subject of the attachment suit, arose subsequently to the conveyance, being a note of George L. Lucas, given January 20, 1876, to David Lucas, for $500. All the existing indebtedness of George L. Lucas, at the time of the conveyance, shown, was a judgment against him in favor of one Burns for $378.31, rendered at the April term, 18'73, of the Peoria county circuit court. All the other property shown to have been owned by him at the time was an undivided half of eighty acres of land in Peoria county, the title to the other half appearing to have been in his wife, Hannah L. Lucas, by conveyance to her from Sarah J. and Michael Crow, made April 13, 1871. This eighty acres was conveyed by George L. Lucas, and his wife, Hannah L., to David Lucas, by warranty deed, dated February 10, 1874, for the consideration expressed, of $5000, subject to a trust deed to secure $1500. On the Burns judgment above named, against George L. Lucas, two executions, issued July 18, 1873, and October 16, 1873, had been returned no property found, and a further execution on the judgment, issued October 6, 1874, was levied upon said eighty acres of land, and satisfied in full by the sale thereof, November, 1874, to Burns, for $460.36, and to redeem from this execution sale, George L. Lucas borrowed $500 from David Lucas, and gave to him therefor the note on which the attachment suit was brought, George L. having before, as already said, sold the land to David Lucas, and given a covenant of warranty. All the evidence as to the value of the lots in question is, that they were good security for $3000. This is the substance of all the testimony bearing upon the question involved. There is no direct evidence of any fraudulent purpose, or evidence that the conveyance was colorable only, and that a secret trust and confidence existed for the benefit of the grantor, George L. Lucas, or that the deed was made in anticipation of incurring debts, to avoid the payment of which the conveyance was made. Cases in which this court has recognized that such a conveyance might be avoided by subsequent creditors: Tunison v. Chamblin, 88 Ill. 378; Jones v. King, 86 id. 225.

From the circumstances disclosed, we perceive no sufficient ground for the impeachment of the conveyance here as being fraudulent as against subsequent creditors. Although the conveyance to the wife was voluntary, this of itself—no fraudulent intent appearing, nor such facts as above named, —does not render the deed void as to subsequent creditors. Moritz v. Hoffman, 35 Ill. 554; Bridgford v. Riddell, 55 id. 261.

But inasmuch as there was an attempt to prove a valuable consideration, to the extent of $1800, for money advanced by the wife for her husband, and that the conveyance was made in payment of this alleged indebtedness of that amount from the husband to the wife, and there was failure in this, it appearing that the money was but earnings of the wife which belonged to the husband, it is insisted that this fruitless attempt to show a valuable consideration precludes the appellee from availing herself of the deed as a voluntary conveyance. The attempt to prove a valuable consideration indicated an idea that such a consideration was necessary to sustain the conveyance; but the failure to prove a consideration leaves the deed standing as a voluntary conveyance, and if such a conveyance be good as against the subsequent creditors, we know no reason why the grantee should be deprived of the enjoyment of the benefit of the deed as a voluntary conveyance, from the circumstance of having attempted to prove the payment of a valuable consideration and failing in the attempt.

It is claimed that there was an estate as tenant by the curtesy in the husband, which was subject to the attachment. It is sufficient to say, in answer to this, that in Beach v. Miller, 51 Ill. 206, it was held that since the act of 1861, the husband’s right to the curtesy in the land of his wife is contingent, and does not vest in the husband until the death of the wife.

We find no cause for disturbing the finding and judgment of the circuit court, and the judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Scott Mr. Justice Mulkey :

text:
    E. F. C. Klokke v. John H. P. Dodge.

      Filed at Mt. Vernon January 18, 1882

      Rehearing denied May Term, 1882.

    1. County courts and probate Courts—of their jurisdiction of probate and other matters. Section 18 o£ article 6 of the constitution of 1870, declares that county courts shall have jurisdiction in all matters of probate, settlement of estates of deceased persons, appointment of guardians and conservators, and settlement of their accounts, in all matters relating to apprentices, and in proceedings for the collection of taxes and assessments, and such other jurisdiction as may be provided for by general law:

      2. By section 20 of the same article, it is provided that probate courts, when established under the constitution, shall have original jurisdiction in all ^matters of probate, the settlement of estates of deceased persons, the appointment of guardians and conservators, and the settlement of their accounts, in all matters relating to apprentices, and in cases of the sales of real estate of deceased persons for the payment of debts.
    3. Upon the establishment of a probate court in a particular county, the county court of such county is at once, by operation of law, deprived of its jurisdiction in matters of probate, and in all other matters over which probate courts are given jurisdiction. There can not be concurrent jurisdiction between the two courts in the same County. The jurisdiction of the probate courts is exclusive.
    4. Same—of the extended jurisdiction of county courts in counties in which probate courts are or maty be established—constitutionality of the act of 1881. The act of 1881, “to extend the jurisdiction of county courts in counties in which probate courts are or may be established,” provides, “that in all counties in which probate courts are or may hereafter be established, county courts may have concurrent jurisdiction with the circuit court in all cases at law and in equity, except criminal cases where the punishment may be death, or confinement in the penitentiary:" Held, the act was unconstitutional, the extended jurisdiction attempted to be thereby conferred being restricted to county courts in certain counties, and not affecting the county courts in all the counties in the State alike, thus being within the inhibition of that clause of sec. 29, art. 6, of the constitution, declaring the jurisdiction “of all courts of the same class or grade” shall be uniform.
    5. So it was held, the county court of Cook county, that being one of the counties in which a probate court has been established, and in which it was sought to make the act operative, has no jurisdiction of a bill in chancery for relief against certain taxes alleged to have been illegally assessed against the property of the complainant.
    Appeal from the County Court of Cook county; the Hon. Mason B. Loomis, Judge, presiding.
    Messrs. Condee & Bliss, for the appellant.
    Mr. H. T. Gilbert, and Mr. D. B. Snow, for the appellee.
   Mr. Justice Scott

in announcing the judgment of the Court said:

Section 1 of “An act to extend the jurisdiction of county courts in counties in which probate courts are or may be established,” in force July 1, 1881, provides, “that in all counties in which probate courts are or may hereafter be established, * * * county courts shall have concurrent jurisdiction with the circuit court in all cases at law and in equity, except criminal cases where the punishment may be death, or confinement in the penitentiary. ” Under the provisions of this statute complainant "exhibited his bill in the county court of Cook county, for relief against certain taxes alleged to have been illegally assessed against his property. The county court entertained the bill and granted the relief. By an agreement of parties, entered of record, an appeal was taken from the decision of the county court to the Supreme Court, sitting in the Southern Grand Division. The only questions disóussed in this court have relation to the constitutionality of the section of the statute conferring extended or increased jurisdiction on county courts in counties in which probate courts are or may hereafter be established. Unless the act cited is constitutional, it is not claimed the county court had jurisdiction to entertain the bill.

Section 18, art. 6, of the constitution, which provides for the election of county judges in the several counties of the State, also declares county courts shall be courts of record, and shall have jurisdiction in all matters of probate, settlement of estates of deceased persons, appointment of guardians and conservators, and settlement of their accounts, in all matters relating to apprentices, and in proceedings for the collection of taxes and assessments, and such other jurisdiction as may be provided for by general law. Under this section of the constitution county courts were organized in the several counties of the State, having and exercising uniform powers and jurisdiction. Section 20, of the same article of the constitution, confers power on the General Assembly to establish probate courts in counties having a population of over fifty thousand inhabitants. No doubt this power could be exercised by the General Assembly at any time whenever the interests of the inhabitants of the counties embraced in the class indicated might, in its judgment, require probate courts to be established. Probate courts, when. established under the constitution, shall have original jurisdiction in all matters of probate, the settlement of estates of deceased persons, the appointment of guardians and conservators, and the settlement of their accounts, in all matters relating to apprentices, and in cases of the sales of real estate of deceased persons for the payment of debts. It will be noted the constitution makes no provision for giving probate courts, when established in counties having over fifty thousand inhabitants, exclusive original jurisdiction in matters over which they may exercise jurisdiction. All county courts, by the express terms of the constitution, (sec. 18, art. 6,) have original jurisdiction in all matters of probate, settlement of the estates of deceased persons, the appointment of guardians and conservators, and in other matters enumerated, and it is not apprehended it is in the power of the General Assembly to take away from county courts jurisdiction conferred upon them by the constitution. Probate courts may be established in a class of counties indicated by their population whenever the legislature may see proper to do so, and such courts will have original jurisdiction in certain matters, but there is no authority in the constitution for making that jurisdiction exclusive. Both courts have, and may continue to have, original jurisdiction in a class of eases designated. Nothing contained in the constitution is inconsistent with the existence .of two courts in the same county having original jurisdiction in the same class of cases. More than once this court has had occasion to apply this construction to county and circuit courts. It has been decided the General Assembly has no power to take from circuit courts original jurisdiction, which they have under the constitution, and transfer it to the exclusive jurisdiction of county courts. Concurrent jurisdiction with the circuit courts in certain matters might be conferred on county courts, but that jurisdiction could not be made exclusive in the latter courts. (Myers v. The People, 67 Ill. 503; Mapes v. The People, 69 id. 523.) It is needless to say that such jurisdiction as the legislature may rightfully confer upon any court may be revoked at any time by the same authority, but jurisdiction given by the constitution to a court can not be taken from it by the legislature and transferred to another court.

This construction is conclusive against the correctness of the proposition, so confidently stated, that county courts in counties where probate courts have been or may be established, are a different class of courts from county courts in counties having no probate courts. Such is not the fact, and there is no warrant for any distinction. Although a probate court may be established in any county having a population of over fifty thousand inhabitants, yet the county court of that county will retain all the jurisdiction given it by the constitution, even in matters that may also be within the jurisdiction of the probate court. It is for the unanswerable reason the constitution has declared what, jurisdiction a county court may exercise, and it has not provided any portion of that jurisdiction may be taken away or transferred to the exclusive jurisdiction of a probate or any other court. It is apparent, then, that county courts in all the counties of the State have, and must have under the constitution, the same powers and jurisdiction, whether probate courts are established in some of them or not, and hence constitute a “class of courts, ” within the meaning of that instrument, concerning which all laws must be general, and of uniform operation. The section of the statute -cited, in terms, applies only to county courts in counties in which probate courts are or may be established, giving to such courts concurrent jurisdiction with circuit courts in certain matters in law and in equity. Judicial notice will be taken of the fact but few counties in the State have a population of over fifty thousand inhabitants, and by reason of that fact may have a probate court. It is plain, therefore, the law that purports to confer increased or extended jurisdiction on county courts in counties where probate courts aré or may hereafter be established, applies only to a part of a class or grade of courts, and falls within the inhibition of that clause of section 29, art. 6, of the constitution, which declares, “all laws relating to courts shall be general, and of uniform operation, and the organization, powers,, proceedings and practice of all courts of the same class or grade, so far as regulated by law, and the force and effect of the process, judgments and decrees of such courts, severally, shall be uniform.” Had the convention which framed the constitution intended, as the argument maintains, the effect of establishing probate courts in counties having the requisite population would be to deprive county courts in such counties of that jurisdiction they previously had under the constitution, and which probate courts might thereafter exercise, it is singular such language was not employed as would have made that intention clear. But that was not done. The constitution contains nothing, that in the slightest degree indicates that probate courts shall have exclusive jurisdiction over matters within their jurisdiction, when established. Probate courts, when established, the constitution itself limiting their powers, can only have concurrent jurisdiction with county courts in certain matters, and that is all. The intention of the framers of the constitution can only be accurately ascertained from the.words employed to express their meaning, and the words employed are to be understood in their ordinary and usual signification, otherwise there could be no safe or uniform interpretation of such instruments. Courts are not at liberty to suppose one thing or another was meant, unless it is plainly expressed, or arises by necessary implication from unambiguous terms employed.

The question now being considered, whether the jurisdiction county courts had in probate matters under the constitution, passed exclusively to probate courts when they should be established, was not raised or discussed in The People v. Loomis, 96 Ill. 377. It does not appear that phase of the case was presented to the court. The only point decided was, whether the county court of Cook county, since a probate court was established in that county under the provisions of the act of 1877, still had jurisdiction to foreclose a mortgage made by a guardian on behalf of his ward, and it was held that under the act of 1869, applicable to all county courts in the State, irrespective of the fact whether probate courts had been established or not, the court had jurisdiction to entertain a bill for that purpose. It was thought that neither- the section of the constitution that provides for the establishment of probate courts, nor the act of the legislature, had deprived the county court of jurisdiction in such cases.

In „ the views here expressed only two other members of the court concur with the writer. A majority of the court, however, are of opinion the “Act to extend the jurisdiction of county courts in counties in which probate courts are or may be established,” in force July 1, 1881, is unconstitutional, and for that reason it follows it was error in the county court to entertain jurisdiction of the bill, and its decree will be reversed and the -bill dismissed.

Decree reversed.

Mr. Justice Mulkey :

While I concur in the conclusion reached in this case by a majority of the court, I am unable to give my assent to the grounds upon which the decision is placed, as expressed in the foregoing opinion. Therefore, in justice to myself, and in order to. avoid any misapprehension with respect to the position of the court upon the subject, I deem it proper that I should present my own views in a separate opinion, and shall accordingly do so.

It is provided by section 29 of article 6 of the constitution, that “the organization, jwisdiction, powers, proceedings and practice of all courts of the same class or grade, so far as regulated bylaw, * * * shall be uniform. ” Now, it is manifest if there was no other provision in the constitution operating as an exception to or limitation upon the one just cited, the legislature would have no power or authority to confer, as was attempted to be done in .this case, chancery jurisdiction upon one or more of the county courts in the State, without at the same time conferring it upon the others also. The framers of the constitution, however, foresaw that in very large counties the business of these courts might, and probably would, increase to such an extent as to require a separation of the probate from the other business therein; and with a view of providing for such a contingency, they, by the 20th section of the same article of the constitution, declared that the legislature might provide for the establishment of probate courts, with “original jurisdiction in all probate matters, the settlement of estates of deceased persons, the appointment of guardians and conservators, and settlement of their accounts, in all matters relating to apprentices, and in cases of sales of real estate of deceased persons for the payment of debts.” The only limitation on the power of the legislature to establish these courts in the several counties in the State, as will appear from'the various provisions of the constitution relating to the subject, is the one contained in the 20th section itself, which forbids the establishment of such courts in any county not having a population in excess of fifty thousand. Knickerbocker v. The People ex rel. 102 Ill. 218.

It will be perceived by reference to the 18th section of article 6 of the constitution, which creates county courts and defines their jurisdiction, that the jurisdiction of these courts and -of probate courts, so far as it relates to “matters of probate, settlement of estates of deceased persons, appointment of guardians and conservators, and settlement of their accounts, in all matters relating to apprentices, ” is the same. But in addition to this, county courts are by the same section given jurisdiction “in proceedings for the collection of taxes and assessments, and such other jurisdiction as may be provided by general law, ”

The question is then presented whether probate courts, when established by the legislature under the 20th section, were intended to take the place of and be substituted for county courts, in so far as the jurisdiction of the two courts, as specifically defined in the constitution, is the same.

I frankly confess this question is not free from difficulty, and that it cost me much thought and reflection before arriving at a satisfactory conclusion. My first inclination was, that no such substitution in the respect stated was intended, but upon more mature consideration of the matter I am fully satisfied that such was the intention of the framers of the constitution. I concede the general proposition that where two courts of like powers and jurisdiction, in whole or in part, are established at different times in the same judicial district, the law creating the second court will not ordinarily, in the absence of an express declaration to that effect, operate as a repeal of the act establishing the first court, in so far as their jurisdiction is the same, but in such cases the jurisdiction of the two courts will be regarded as concurrent. Tet this, like all other rules, is subordinate to the universal and fundamental principle that all laws must be so construed as to give effect to the intention of the law-makers. The above general rule, subject to the fundamental limitation just stated, has been fully recognized by this court in construing the constitution.

The real question, therefore, to be determined now is, what did the framers of the constitution intend in this particular instance ? If it was customary for matters of probate to be transacted in two or more courts in the same judicial district or territorial limits, or if this might be done without occasioning great inconvenience, I should unhesitatingly say the jurisdiction was intended to be concurrent, and not a mere transfer of it from one court to another. But such is not the case. The proposition that there may be, under our constitution, two courts in the same county at the same time exercising probate jurisdiction, is not only novel, but it is believed no instance of the kind can be found; and the very fact it is without precedent, affords a strong reason why the constitutional convention could not have intended it. Moreover, I am confident if the constitution should be thus construed it would lead to great confusion and inconvenience in the management and settlement of estates, and this, to my mind, affords a conclusive reason why such 'a construction should not receive judicial sanction. For instance, letters of guardianship or of administration might happen to be made by different persons at the same time—one in one court, and the other in the other. In such case, each court might insist on maintaining its own jurisdiction, and neither applicant might be willing to yield to the other. This would evidently give rise to rival claimants of the same estate, and while these contests would be going on, the estate itself might, and doubtless would, suffer, to the detriment of those interested in it. Any number of complications of this character might readily be suggested, but it is unnecessary to do so.

■ There is one matter, however, in this connection, which deserves special notice. I allude to the great inconvenience it would be to. creditors and others interested in estates, who are constantly having occasion to examine the probate records for the purpose of ascertaining their condition and of seeing how they are administered, if they were compelled, as they certainly would be if the construction contended for is the correct one, to -examine the records of two courts, instead of one, before they could certainly know their exact condition. It would be difficult, if not impossible, to estimate the inconvenience and trouble which would inevitably arise from this cause alone, to. say nothing of the other evils suggested, growing out of such a system.

These considerations, in addition to many others of a like character that might he mentioned, in my judgment absolutely forbid the idea that the framers of the constitution ever intended there should be two courts having, probate jurisdiction in the same county.

I hold, therefore, the establishment of a probate court, under the constitution, in a particular county, is ipso facto a revocation of the jurisdiction of the county court of such county as to all matters over which probate courts are given jurisdiction, and with respect to which county courts in counties not having probate courts exercise a similar jurisdiction,—or, in other words, that upon the establishment of a probate court in a particular county, the county court of such county is at once, by operation of law, deprived of its jurisdiction in matters of probate, and in all other matters over which probate courts are given jurisdiction, for there is no such a thing, in my judgment, as concurrent jurisdiction between the two courts in the same county. The jurisdiction of the latter courts is clearly exclusive. And in this conclusion I am authorized to say -that Mr. Chief Justice Craig and Justices Dickey and Sheldon concur.

This being the effect of establishing a probate court under the 20th section of article 6 of the constitution, it follows the legal operation of that section is to create an exception to or a limitation upon the 29th section of the same article, which requires the jurisdiction and powers of county courts, and other courts of the same class or grade, to be uniform. Taking the two sections together, so far as the present inquiry is concerned, they, in effect, declare that the jurisdiction and powers of the county courts of this State shall be uniform, except in counties having a population in excess of fifty thousand, in which the legislature shall establish probate courts, in which latter counties the county'courts shall exercise no probate or other jurisdiction which is specifically conferred upon probate courts, but that in all other respects their jurisdiction and powers shall he the same as those exercised by other county courts in counties where no such probate courts are established,—in other words, the constitution has authorized this -uniformity of jurisdiction with respect to county courts, under certain circumstances, to be partially disturbed or broken by withdrawing from them a certain portion of their jurisdiction, specifically determined by the constitution itself, for the purpose of conferring the same upon certain special tribunals, called probate courts, created for the express purpose of relieving county courts of a portion of their business, which the framers of the constitution supposed, in course of time, would increase to such an extent as to require the relief in question.

So far the constitution has authorized a departure from the rule created by that instrument requiring the jurisdiction of county courts to be uniform, and no further. Clearly the authorizing of an infraction of a general rule for a specific purpose does not confer authority to break the rule for a different purpose. The constitution, in effect, says to the legislature, you may, under certain contingencies, for the purpose of relieving county courts in large counties where their business has greatly increased, withdraw from them a specific portion of their jurisdiction; but this certainly does not authorize the legislature, after having exercised the power in this respect, to go on and destroy the uniformity in the jurisdiction of these courts in other respects. A power tó deprive a court of a portion of its jurisdiction affords no authority for conferring additional jurisdiction on the same court, as was attempted in this case.

If it he suggested the legislature is authorized to increase the jurisdiction of county courts without any constitutional grant -for that purpose, the obvious answer is, that this power is subject to the qualification that such increase of jurisdiction must extend to all county courts in the State, so as to give effect to the provision of the constitution requiring uniformity of jurisdiction. Outside the special jurisdiction conferred upon prohate courts, which can neither be enlarged nor diminished, the legislature may alter or change the jurisdiction of county courts, except in so far as it is controlled by the constitution, at pleasure, provided the legislation for such purpose is general, and applicable alike to all county courts in the State.

The position that the-giving of the legislature authority, under certain circumstances, to partially depart from the rule of uniformity with respect to certain specifically determined subjects of jurisdiction, affords any authority for a further departure from the rule with respect to other jurisdictional matters not embraced in the constitutional category, is wholly at variance with every principle of law and logic. Nevertheless, the legislature, merely because the constitution authorizes a departure from the rule of uniformity in the respect stated, has gone on and attempted to confer on county courts in all counties where probate courts have been established, “concurrent jurisdiction with the circuit courts in all eases at law and in' equity, except in criminal cases where the punishment may be death or confinement in the penitentiary. ” This act I' regard in palpable violation of section 20 of article 6 of the constitution, requiring uniformity of jurisdiction in county courts, and it is no answer to this objection to say, that because the uniformity of jurisdiction of these courts was by the authority of the constitution partially destroyed, they thereby became a separate class of courts, whose jurisdiction might be increased or diminished to any extent the legislature might think proper, without any regard to the jurisdiction of county courts in’ counties not having probate courts, for there is nothing in the constitution that warrants this assumption. There is but one class of county courts known to the constitution and laws of this State, and their jurisdiction and powers, in my judgment, must be uniform, except in so far as the constitution has otherwise expressly provided. To sustain such legislation as this, would be to defeat the very object and purpose of the constitution in providing for probate courts. The latter courts are created for the purpose of relieving such of the county courts as are supposed to be unable to do all the business brought to them, and not merely to enable them to get rid of their appropriate business, so that the legislature may in effect convert them into circuit courts, as was attempted to be done in this case.


author: Dickey, J.:

text:
    James W. Scholfield et al. v. Frank C. Pope.

      At Ottawa, March Term, 1882.

    Practice in the Supreme Court—motion should state proper,grounds. A motion to dismiss an appeal for an alleged want of jurisdiction in this court, will not be entertained except it be accompanied by a statement of the particular ground upon which the question of jurisdiction is to arise.
    Appeal from the Circuit Court of Cook county.
    At the present term, Mr. James F. Meagher, in behalf of the appellee, moved the court to dismiss this appeal, for the following reason: “Because said Supreme Court has no jurisdiction to hear and determine said appeal.”
   Dickey, J.:

This motion does not contain, nor is it accompanied by, any statement of the ground upon which the question of jurisdiction is to arise. We can not go to the record to search for some possible ground for the motion. A proper statement should be made. We do not allow or deny the motion, but simply refuse to entertain it at all. The motion can be renewed on a proper statement.


author: Scott, Ch. J.:

text:
    The People ex rel. Cunningham v. Napoleon B. Thistlewood et al.

      At Springfield, June Term, 1882.

      1. Mandamus—as ah original proceeding in this court—practice—not controlled by the statute. The statute regulating the practice in mandamus cases (Rev. Stat. 1874, p. 691,) has no application to practice in the Supreme Court. It was designed to regulate the practice in the circuit courts, and not in this court. However, the practice in such cases in this court will be made to conform, as nearly as may be, to that as regulated by statute in the circuit courts.
    2. Same—petition filed only upon leave—summons awarded only upon cause—when returnable. The summons in mandamus, in an original proceeding in the Supreme Court, will not be awarded, as a matter of course, but only upon cause shown by petition, and the petition can be filed only upon leave granted for that purpose.
    3. If, upon examination of the petition, no cause is shown for awarding the summons, it will be denied, as was the practice in this court before the passage of the statute. Where the petition shows sufficient cause, the summons will be ordered to be issued, as it would from the circuit court.

    4. If the matter to be litigated concerns the public interest, the court has uniformly made the writ returnable to the term at which the application is made, but if it be of a mere private nature, the practice is to make the writ returnable to the succeeding term.
    5. Same—also, of the time of service of the summons. The summons should, in any cáse, be made returnable at a time not less than five days prior to the hearing, but there is nothing in the statute or in the practice that obtains, which requires there should be five days service before the matter can be heard in this court. '
    6. Continuance—in mandamus—for want of service. It is a sufficient ground for a continuance in a proceeding for mandamus in this court, where the action or conduct of several persons is sought to be affected or controlled by the writ, that some of the persons so to be affected have not been served with the summons.
    This is an original proceeding in this court, for a writ of mandamus.

    The petitioner, Justus B. Cunningham, alleges that at a general election held in and for the city of Cairo, he was elected to the office of city attorney of said city, and that the city council and the city clerk, together with the mayor of the city, refuse to execute their duties-in respect of such election to the end that the petitioner may be properly invested with his said office to which he was so elected. The petitioner therefore prays that the mayor and common council and the city clerk be compelled by mandamus to perform their proper duties in the premises. Upon leave given, the petition was filed, and summons awarded, and duly issued, and served upon a portion of the defendants.
    At the present term, Messrs. Green & Gilbert, in behalf of those defendants upon whom service had been made, moved the court for a continuance of the cause, upon two grounds:
    First—Because the summons was not served upon these defendants, or any of them, in apt time for the same to be answered unto on the return day thereof.
    Second—There has been no service of said process upon Napoleon B. Thistlewood, mayor, or Dennis J. Foley, city clerk, of the city of Cairo.
    Counsel cited the statute concerning the “action of mandamus, ” (Rev. Stat. 1874, p. 691,) and contended that where the summons is issued in term time, as in this ease, it should be served at least five days before the return day in order to make it a sufficient service, and place the party in default under section 2 of the act. This is urged in support of the first ground assigned for a continuance, .there not having been service of process upon any of the defendants five days before the return day.

       The writ of mandamus will not be awarded in the Supreme Court upon mere motion,—a petition must be presented showing the grounds of the application. The People ex rel. v. Loomis, 94 Ill. 587.

       This writ is not now, as formerly, a prerogative writ; it is nothing more, under our statute, than an ordinary action at law in cases where it is the appropriate remedy. Yet it is to be issued in the discretion of the court. People ex rel. v. Weber, 86 Ill. 285. Under the statute, the petition takes the place of the alternative writ, and defects in it are to be taken advantage of as they were when found in the alternative writ; and defects in substance can be taken advantage of at any time before the granting of the peremptory writ,—even after return made. People ex rel. v. Davis, 93 Ill. 133.

         Upon asking leave to file a petition for a writ of mandamus in this court, it is not necessary to couple with such application a motion that a summons or an alternative writ be awarded. Upon granting leave to file the petition, if, upon examination, it is found that sufficient cause is shown, the summons will be awarded without any special motion for that purpose. Blatchford et al. v. Newberry et al. 100 Ill. 484.

   Scott, Ch. J.:

It is insisted that the statute which regulates the practice concerning mandamus, and requires that a writ should be returnable in not less than five days, makes it also imperative that there should be service for that length of time. This court has had frequent occasion heretofore to decide that the statute regulating the practice in mandamus cases has no application to practice in this court. It was designed to regulate the practice in the circuit courts in such cases, and not in this court. We have therefore always required that, before a summons shall be issued, application shall he made to this court for leave to file the petition; and it is not issued as a matter of course, hut upon cause shown. We have, however, said, and the practice has been, that we will make the practice in such cases in this court conform, as near as may he, to that as regulated by statute for the circuit courts, and we have, therefore, in every case where we have found the petition shows sufficient cause, ordered the summons to issue as it would from the circuit court; but, if we think, upon examination, no cause is shown for awarding the summons, it will he denied, as was the practice in this court before the passage of the statute. Where the matter to he litigated concerns public interest, we have uniformly made the writ returnable to the term at which the application is made. Where it is of a mere private nature, the practice" is to make the writ returnable to the succeeding term. In this case we thought the matters set forth in the petition were of such public importance that the writ ought to be made returnable to the present term, and it was accordingly so done. There is, therefore, nothing in the statute or the practice that obtains that makes it imperative that there should be five days service before the writ can be heard in this court, but it must be made returnable at a time not less than five days.

The other reason, however, .assigned for .a continuance, namely, that the parties have not all been served, is well taken. The parties to be affected, whose action is to be controlled, are not all before the court, and we are of opinion, until they are all before the court we have no jurisdiction to • hear the case. It will, therefore, be continued for service upon the parties not served.

Motion allowed.


author: Mr. Justice Dickey

text:
    John D. McIntyre v. The People, for use of Alice Wilkey.

      Filed at Springfield March 28, 1882

      Rehearing denied June Term, 1882.

    1. Alteration—of guardian’s bond will not affect ward. The adding of another name as security in the body of a guardian’s bond, and the signing and sealing of such bond by the new surety, under an order of court requiring additional security, even if unlawful, will not affect the security of the ward in the bond as originally made, or defeat a recovery thereon; and if lawfully made, the. ward may treat the bond as that of all the sureties named in it after its alteration, and may sue any one of such sureties separately.
    2. Guardian—loams must be approved by county court. Where a guardian loans his ward’s money, the statute requires that the county court must approve the security; and the ward may treat a loan made without such approval of the county court as an appropriation of the money to the guardian’s own use. The statutory requirement that the security shall be approved by the court is mandatory, not merely directory.
    3. Guardian’s bond—action lies on, without first fixing guardian's liability. Under the statute, it is not necessary that the guardian’s account shall be adjusted in the county court, and the extent of his liability thereby ascertained, before an action will lie against his sureties upon his bond. The damages may be ascertained in the suit on the bond.

      4. Evidence—parol, as to action of a court of record, not proper. The county court being a court of record, having a seal and a clerk, its proceedings can only be shown by its record. Hence parol evidence that the court approved of the security taken by a guardian for moneys of his ward loaned, is not admissible in a suit upon the guardian’s bond. If an order of approval was in fact made, but not recorded, the only remedy is by an application to that court, in apt time, upon notice and proper proof, to have its record amended or completed.
    Writ of Error to the Appellate Court for the Third District;—heard in that court on writ of error to the Circuit Court of Tazewell county; the Hon. Ninian M. Laws, Judge, presiding.
    This is an action upon a guardian’s bond. Judgment in the circuit court was against the defendant. This was affirmed in the Appellate Court, and defendant in the circuit court brings the ease here on error.
    At November term of the county court of Tazewell county, in 1869, H. K. Alexander was appointed guardian of Alice Wilkey, then a minor, and gave bond as such, with one Eupert and John D. McIntyre as sureties, in the sum of $20,000, conditioned that Alexander should discharge the office and trust of such guardian according to law, and should render a fair and just account of his guardianship to the county court of the county of Tazewell, from time to time, as should be required by that court, and should comply with all orders of said court, lawfully made, relating to the goods, chattels and mortgages of said minor, and should render and pay to such minor all moneys, goods and chattels, title papers and effects, which might come to the hands and possession of such guardian belonging to such minor, when such minor should be entitled thereunto, or to any subsequent guardian, should such court so direct. Alexander entered upon his duties as such, and so continued to be such guardian until 1877, when he died. Alice Wilkey became of age February 4, 1878. In April, 1875, the county court made an order requiring Alexander to give additional security on his bond, and thereupon William S. Mans subscribed his name and seal to the original bond immediately below the original signatures and seals. This was done under the supervision of the judge of the county court, and the name of Mans was inserted in the body of the bond as one of the sureties at that time.
    The amended declaration contained two counts. The first describes the bond as that of Alexander as principal, and of Eupert, and McIntyre as sureties, and alleges its execution on December 3, 1869, which is the date upon the face of the bond. The second count alleges the making of the bond by Alexander, Eupert and McIntyre, as in the first count, and alleges further that on April 3, 1875, Alexander was ordered by the county pourt to give additional security, and thereupon Mans subscribed his name to the bond as additional security, which was approved by the court, as Alexander’s guardian’s bond, and this was done with the full consent of McIntyre, and without the knowledge of Alice Wilkey. Each count alleges breaches of the bond in failure to pay over moneys in the hands of Alexander.
    Defendant filed seventeen pleas, embracing pleas of non est factum. Issues were formed, and a trial by jury had. The jury found the issues for plaintiff, finding the debt $20,000, and the damages $3699.99, and judgment was entered upon the verdict. The case was taken, on error, to the Appellate Court, and the judgment was there affirmed. McIntyre brings the cause here by writ of error.
    Messrs. Prettyman & Sons, for the plaintiff in error :
    A guardian, by the common law, is required to loan the money of his ward, and keep it loaned for the ward’s benefit carefully and prudently, and the statute enjoins it also, “upon security to be approved by the court. ” The statute does not require this approval of the security to be entered of record.

      The presentation of the matter to the judge, and his consent and approval of the loan, should protect the guardian, whether the judge makes any order on the records or not. As the guardian can not compel the making of any such entry, it seems he should be allowed to prove the fact that the court approved the loan and security. If the guardian acts with prudence, care and good faith, he should not be held liable for a loss. Howard v. Amoy, 9 Pick. 461; Lowell v. Minat, 20 id. 116; Kommaker v. Kimmel, 1 Pa. 207.
    The county court must first find the amount due from the guardian, and direct its payment, before bringing suit against his sureties. Stilwell v. Mills, 19 Johns. 303; Gilbert v. Guptil, 34 Ill. 138; Groff v. Mismer, 52 Cal. 136; Salsbury v. Von Helser, 3 Hill, 77; Davis v. Dello, 6 N. H. 399.
    A material alteration of a bond increasing the liability of a surety, or diminishing or varying his right to recover contribution from his co-sureties, renders it void. Rudesill v. Jefferson County, 85 Ill. 448; Gillett v. Sweet, 1 Gilm. 489.
    The alteration was procured by the representative of the plaintiff below for the benefit of the ward and another' surety, and in the absence of the defendant, and without his knowledge, and this renders the bond void as to him. Vincent v. People, 25 Ill. 500; Lewis v. Payne, 8 Cow. 73; Burlingame v. Brewster, 79 Ill. 516; 2 Parsons on Contracts, 716.
    Though both parties to a bond agree to an alteration, yet the surety is thereby discharged. Gardner v. Harbuck, 21 Ill. 129; Mix v. Vail, 86 id. 40.
    A penal bond can not be made valid by a subsequent oral assent of a surety. Sans v. People, 3 Gilm. 327.
    Mr. C. A. Roberts, and Mr. N. E. Worthington, for the defendants in error :
    An alteration, though material, by a stranger, or without any fraudulent intent, will not vitiate the written instrument. Vogle v. Ripper, 34 Ill. 105; Elliott v. Blair, 47 id. 342.

      The subsequent assent or ratification of the surety to the alteration made the bond good as to him. Stiles v. Probst, 69 Ill. 382; Goodspeed v. Cutler, 75 id. 534; Prettyman v. Goodrich, 23 id. 330.
    As to the alteration of the bond, reference is made to City of Chicago v. Gage et al. 95 Ill. 593.
   Mr. Justice Dickey

delivered the opinion of the Court:

Counsel for plaintiff in error contend that it was error to permit the bond to go in evidence after it was shown that it had been altered after it was executed by McIntyre, by the insertion of the words, “and Wm. 8. Maus,” in the body of the instrument, and by adding the words, “Wm. 8. Maus, seal,” at the bottom, below the original signatures. This position is not tenable. If the judge of the county court and Maus could not lawfully do what they did, and their action was unlawful, it is clear they could not, by any unauthorized act of theirs, deprive the minor of the security which she had in the original bond, and in such case she had the right to proceed upon the original bond as though it had not been altered. If the proceeding be regarded as a regular one, authorized by law to be done as it was done, then she had a right to treat the bond as that of all the sureties named in. the bond after it was altered. This action, by the abstract, seems to have been brought against McIntyre alone. The statute authorizes this to be done.

Defendant offered, upon the trial, to prove that Alexander, on April 2, 1875, as such guardian, lent to W. S. Maus $1000 of the money of his ward, and took from Maus his note for that amount, payable thirty months after date, to Alexander, as such guardian, with interest at the rate of ten per cent, and that the payment of the same was secured at the time of the loan by a mortgage upon real estate in that county, which was of such value as to be, and was at the time, ample security for that amount, and also to prove that Mans, at the time of the loan, was solvent to an amount larger than $1000; and also offered to prove, by the oral testimony of the then judge of the county court, that the loan was made at the time with his knowledge and consent, and by his approval. The note and mortgage were produced and offered as evidence. All this proof was rejected by the circuit court, and defendant excepted. This, it is insisted, was error. At common law it was the duty of the guardian to loan the money of his ward, (not needed for the present use of the ward,) and keep it loaned at interest for the benefit of the ward. This was to fee done carefully and prudently. If the guardian kept such moneys in his possession without use, when by the exercise of ordinary care he might prudently have put the same at interest, he was chargeable with interest upon the same. If he loaned with prudence, and losses occurred, -he was not answerable for losses not attributable to his fault. Our statute, however, provides that “it shall be the duty of the guardian to put and keep his ward’s money at interest upon good security, to be approved by the court, or invest the same in United States bonds, or other United States interest-bearing securities. * * * Loans for large amounts shall be upon real estate security, * * * provided the same may be extended from year to year without the approval of the court.” Were it not for this proviso, it might be plausibly suggested that the primary provision, that the security should be approved by the court, is merely directory; but when it is said that such loans may be extended without such approval, it is necessarily implied that the original loan by the guardian must be made with the approval of the court. This being the mandatory requirement of the statute, the guardian making such loan without compliance with the statute makes the same at his own risk, and must be treated as having undertaken to assume the position of a guarantor. As such, after the maturity of the loan he may be held (in accounting to the ward) to answer for the money so loaned. Of course, on payment to the ward the guardian may avail himself of the proceeds of the loan, if any, to his own use.

The county court is a court of record, having a clerk and a seal. The proceedings of such a court can only be shown by its record, and can not lawfully be proven by parol. If such an order of approval was in fact made, but not recorded, the only remedy is by an application to that court, in apt time, and upon notice and proper proof, to 'have its record amended or completed. We think the ruling of the circuit court on this question was right. The law has thrown about the interests of wards certain safeguards, and it is the duty of courts to maintain them.

It is next objected, that before an action of this kind against the surety can be maintained, it is necessary that the account of the guardian be first adjusted in the county court, and the true balance ascertained, where the commissions to which the guardian may be entitled can only be properly adjusted. By sec. 13, chap. 103, Bev. Stat. 1874, p. 730, it is enacted, as to bonds of guardians, that where the condition of such bond shall be violated, suit may be instituted on such bond, and prosecuted to final judgment against any one or more of the sureties severally, without first establishing the liability of the principal by obtaining judgment against him alone, and in such suits it shall not be necessary to a recovery that a devastavit should have previously been established against the principal in the bond. It results from this enactment, and from sec. 21, of chap. 110, (Practice,) that in an action like the present, for the purposes of' this suit, the door is thrown open in the circuit court, upon the trial, for the adjustment of the accounts of the guardian, so as to fix the true amount of the damages.

We find no sufficient cause for the reversal of the judgment of the circuit court. The judgment of the Appellate Court is therefore affirmed.

Judgment affirmed.


author: Scholfield, J.:

text:
    Indianapolis and St. Louis Railroad Company v. Daniel Morganstern.

      At Springfield, June Term, 1882.

      Agency—use of corporate seal—presumption. Where an appeal bond purporting to have been executed in the name of a railroad company by its general attorney, has the seal of the corporation attached, the presumption will arise that the person using the seal had authority to do so.

    Appeal from the Appellate Court for the Third District.
    This is an appeal by the railroad company, the appeal bond being signed, “Indianapolis and St. Louis Railroad Company, by John T. Dye, General Attorney, ” with the seal of the corporation attached.

      Messrs. Craig & Craig, for the appellee,
    now move the court to dismiss the appeal on the ground the appellant corporation does not appear to have had its corporate name attached to the appeal bond by any person having authority to sign the same.

       Where it is recited in the body of an appeal bond given on appeal by a private corporation, that the company by its corporate name had entered into the obligation, and the bond is signed by the president and secretary of the company, and sealed with its corporate seal, that will be a sufficient execution of the bond in the name of the corporation. Bills et al. v. Stanton, 69 Ill. 51.
      An appeal bond copied into the record, purported to have been executed by the Illinois Central Railroad Company, by an attorney in fact, with a scrawl attached,—it was held, on a motion to dismiss for want of the corporate seal, that the court did not know, judicially, that the company had a seal other than the scrawl such as appeared in the record. Illinois Central Railroad Co. v. Johnson. 40 Ill. 35.
      In copying into the transcript of a record an appeal bond purporting to have been executed by a corporation, the corporate seal, if attached thereto, may be represented by a scrawl; a fac simile of the seal or device can not be made in the copy. Ibid.
      Where an appeal bond, purporting to have been executed by an attorney in fact, was approved by the court from which the appeal was taken, it will be presumed there was before that court sufficient evidence of the authority of the attorney to execute the bond in behalf of his principal. Ibid.
      In Cromwell v. March, Breese, (Beecher’s ed.) 326, a supersedeas bond was executed by “Murray McOonnel, attorney for the plaintiff. ” The supersedeas was quashed for the reason it did not appear that McConnel was authorized to sign the bond as attorney. But it was held in Campbell v. The State Bank, 1 Scam. 423, where a supersedeas bond purported to have been executed by a person as attorney in fact, in the name of his principal, and the authority of the attorney did not appear, this court would presume that the attorney had authority to execute the bond unless his authority was ' questioned by affidavit.

   Scholfield, J.:

The bond appears to have been executed

under the seal of the corporation. This raises the presumption that the person using the seal had authority to do so. There is no attempt to impeach the authority, nor is it claimed the seal of the corporation has been improperly used.

Motion denied.


text:
    Daniel Sapp v. Matilda Wightman.

      Filed at Springfield March 28, 1882

      Rehearing denied June Term, 1882.

    1. Lien of a decree—on lands in a different county. The lien of a decree being limited by the statute in its territorial extent the same as that of a judgment at law, does not extend to lands of a defendant situate in a county other than that in which the decree was rendered, and the court rendering the decree has no power to extend its lien beyond the limits of the county, by declaring it shall be a lien on lands in such other county.

    2. Same—effect of section 6 of the Divorce act. The power to make a decree for alimony a lien upon lands out of the county, is not conferred by section 6 of the Divorce act, which gives the court power to “enforce payment of alimony by causing the defendant to give security for the payment thereof, or in any other manner consistent with the rules and practice of the court. ” This implies, only, that resort may be had to the known modes under the rules of practice for enforcing writs, orders and decrees, such as sequestration, attachment for contempt, etc., or to the statutory method of creating a lien upon lands within the court’s jurisdiction.

      3. Same—on change of venue in suit for divorce—giving alimony in lieu of dower—effect as to extent of lien. The fact that a suit for a divorce and alimony is brought in one county, and taken by change of venue to another, will not give the decree of the court in the latter county any more effect, as a lien upon land in; the county where the bill was originally filed, than if it had been brought in the court in which the decree was entered, nor will the fact that alimony is decreed to be taken in satisfaction of dower, make any difference as to the lien of the decree.
    3. Notice—lis pendens—as to lands. The commencement and pend-ency of a bill for divorce, which merely sets forth the defendant’s lands as affecting the amount of alimony to be allowed, but asserts and seeks no right in respect to them, is no notice Us pendens to affect the rights of inn-chasers from the defendant.
    Appeal from the Circuit Court of Tazewell county; the Hon. N. M. Laws, Judge, presiding.
    This was a suit in ejectment, brought by Matilda Wight-man, against Daniel Sapp and Oliver Goodwin, in the circuit court of Tazewell county, to the September term, 1881, to recover possession of the west half of the south-west quarter of section 24, town 24 north, range 6 west of the third principal meridian, in Tazewell county, Illinois, wherein the plaintiff, on trial by the court without a jury, recovered," and the defendant Sapp appealed.
    It was admitted by the parties to the suit, upon the trial, that John Wightman owned the land in controversy in fee simple on March 22, 1859. Appellee, Matilda Wightman, to recover in the action, relied entirely upon a title she claimed to have derived by conveyance of the premises, from the master in chancery of Tazewell county, to her, as the assignee of a purchaser of the same at a sale thereof, made by such master under a decree rendered by the circuit court of Peoria county, Illinois, on March 22, 1859, in a suit for a divorce, brought by her against her husband, said John Wightman. The sale was made by said master on November 22, 1879, upon the affidavit of Matilda Wightman, presented to him, in which it was stated that eight semi-annual installments of alimony, of $250 each, for the years 1876, 1877, 1878, and 1879, due on the first days of January and July of each of said years by the provisions of said decree, from said John Wightman, were unpaid, and requesting the master to collect the same.
    At the sale one James Haines, Jr., bid off the premises in controversy, and the north-east quarter of section 25, town 25, range 5 west, all situated in Tazewell county, for $2327.10, and it is recited in the deed that Haines had assigned the certificate of sale from the master to Matilda Wightman, who, on February 26, 1881, received the master’s deed purporting to convey to her the premises in controversy and the quarter section of land. The decree of the Peoria county circuit court was rendered in a suit for a divorce, commenced in the Tazewell county circuit court on June 16, 1858, by Matilda Wightman against John Wightman, which suit was removed by change of venue to the circuit court for Peoria county. The decree provides that $500 per annum be allowed as alimony to the complainant, Matilda Wightman, in installments of $250 each, to be paid on the first day of January and the first day of July in each year, commencing January 1, 1860, and payable at the expiration of every six months thereafter during her natural life, the decree declaring that it was made a specific lien upon the premises in controversy and certain other designated tracts of land, all in Tazewell county, and that in the event of defendant failing to pay the complainant any part of said sum of money in the manner and at the time mentioned in the decree, then the master in chancery of Tazewell county was ordered, on the application of complainant, stating the fact of such failure by affidavit, to proceed to advertise and sell the tracts of land described in the decree, or any part thereof, to the highest bidder, for cash in hand, to raise the amount which might be then due the complainant as alimony, and to make sale in like manner from time to time afterward upon like default of payment. It was ordered that the decree be recorded in Tazewell county, and that from and after its rendition the defendant be enjoined from selling or conveying said lands, except subject to the lien thereby created upon the same. This decree, rendered March 22, 1859, was recorded March 24, 1859, in the book of record of deeds, in the recorder’s office of Tazewell county. The master’s deed to Matilda Wightman, dated February 26, 1881, was recorded in such office February 28, 1881.
    As evidence of legal title in fee in himself, Daniel Sapp introduced a deed from John Wightman and wife to William Wightman, conveying to the latter the premises in controversy, dated March 21, 1866, and recorded March 9, 1867, and a deed from William Wightman and wife, conveying the premises to him (Sapp), dated January 5, 1867, and recorded March 8, 1867.
    Mr. N. W. Green, and Mr. Wm. Don Maus, for the appellant :
    The decree of the Peoria circuit court, in March, 1859, for the payment of money as alimony, was not a lien upon the lands of the defendant therein in Tazewell county, it being by the law then in force subject to the same restrictions as judgments at law. Chancery Code, 1845, sec. 14; Eames et al. v. Germania Turnverein, 74: Ill. 56.
    The lien of a judgment of the circuit court extends only to lands within its jurisdiction, and not to lands beyond the county in which such judgment is rendered. Bustard v. Morrison, 1 Scam. 236; Durham v. Heaton, 28 Ill. 264; Kinney et al. v. Knoebel et al. 51 id. 119; Ewing et al. v. Ainsworth, 53 id. 465; Hart v. Wingart, 83 id. 282.
    It is the levy of an execution, not the judgment or decree, that creates the lien on land in another county. Cornwell v. Watkins, 71 Ill. 492; Worcester Nat. Bank v. Cheeney, 87 id. 607.

      Messrs. Prettyman & Sons, for the appellee :
    The assignee of a judgment debtor, or one subject to a lien for alimony, takes the land as the debtor had it, and the lien may be enforced against the property in his hands the same as against the lien debtor. Kruse v. Scripps, 11 Ill. 90; Yates v. Benard, 38 id. 297.
    On the sale of land under a decree which is made a specific lien thereon, and its purchase and conveyance to the lien-holder, the lien is merged in the fee, and the purchaser is entitled to recover against the debtor, or any person purchasing from him since the creation of the lien. Talcott v. Draper, 61 Ill. 56; Prescott v. Fisher, 22 id. 390; Carroll v. Pollard, 24 id. 20; 1 Washburn on Real Estate, 65.
    The statutes then in force authorized the courts in granting a divorce to create liens upon real estate for installments of alimony. Acts 1859, p. 48, incorporated in Rev. Stat. 1874, p. 422, chap. 40, secs. 18, 20; Rev. Stat. 1874, chap. 22, sec. 45, and chap,. 41, secs. 39, 40; Foote v. Foote, 22 Ill. 429.
    That the pendency of a hill for divorce and alimony is-notice lis pendens of the equities of the complainant to any subsequent purchaser from the defendant: Vanzant v. Vanzant, 23 Ill. 543; Errissman v. Errissman, 25 id. 138; Armstrong v. Armstrong, 35 id. 109; Draper v. Draper, 68 id. 18.
    A decree on change of venue may be filed in the county from which the venue is taken, with the clerk of the court from which the venue is changed, and from the date of such filing it will have the same effect as if originally entered there. Rev. Stat. 1874, chap. 146, sec. 34.
    An execution is not necessary to be issued on a decree which authorizes the master to sell, to make the decree a lien. The decree is authority to the master. Karns v. Harper, 48 Ill. 527; Dinet v. Eigenman, 80 id. 274; Amsby v. People, 20 id. 159; Rev. Stat. 1874, chap. 40, secs. 17, 18, 20, and chap. 22, secs. 45, 47.

      As to the mode by which the lien can be extended to lands in another county, under the act of 1874, see Yackle v. Wightman, post, p. 169.

   Mr. Justice Sheldon

delivered the opinion of the Court:

The validity of plaintiff’s title depends upon the force and effect of the decree rendered in the circuit court of Peoria county on March 22, 1859, as being a lien upon this land in Tazewell county. If it was not a lien upon such land situated in another county than that in which the decree was rendered, then the deed from John Wightman to William Wightman, of March 21, 1866, conveyed to the latter the full title to the land, unincumbered by any lien of the decree, and there was no interest left in the land for the master’s deed to the plaintiff, of February 26,1881, to operate upon and convey. Was, then, the decree a lien upon this land in another county ?

The law in force at the time the decree was rendered was: “A decree for money shall be a lien on the lands and tenements of the party against whom it is entered, to the same extent and under the same limitation as a judgment at law\ ” Eev. Stat. 1845, p. 95, sec. 14. And by sec. 45, p. 98: “All decrees given in causes in equity in this State shall be a lien on all real estate respecting which such decrees shall be made, and whenever, by any decree, any party in a suit in equity shall be required to perform any act other than the payment of money, or to refrain from performing any act, the court may in such decree order that the same shall be a lien upon the real or personal estate, or both, of such party, until such decree shall be fully complied with, and such lien shall have the same force and effect, and be subject to the same limitations and restrictions, as judgments at law.” As to the lien of judgments at law the provision was: “All and singular the lands, tenements and real estate of any person against whom any judgment has been or hereafter shall be obtained, either at law or in equity, shall be liable to be sold upon execution to be issued upon such judgment, etc., and the said judgment shall be a lien on- such lands, tenements and real estate from the last day of the term of court in which the same may be rendered, for the period of seven years: Provided, that execution be issued at any time within one year on such judgment, ” etc. Same, p. 300, sec. 1. And as to a writ of attachment, or a writ of execution, issued from the circuit court of one county to any sheriff or other officer of another county, it was provided, that it should be the duty of the officer making such levy to make a certificate thereof, and file the same in the recorder’s office of the county where such real estate was situated, and that until the filing of such certificate such levy should not take effect as to creditors, or bona fide purchasers without notice. Same, p. 305, sec. 25. And by section 27 it is provided that the certificate shall be recorded in a book to be kept for that purpose.

It will thus be seen that by statute a decree for money is made a lien on lands to the same extent, and under the same limitation, as a judgment at law, and that when, in a cause in equity, the court, in its decree, orders that the same shall be a lien upon real estate, the lien shall have the same force and effect, and be subject to the same limitations and restrictions, as judgments at law.

Although the lien of a judgment is given by the statute, in terms the most general, against “all and singular the lands, tenements and real estate” of the judgment debtor, the lien has ever been held by the decisions of this court to ' be limited in extent to the territorial jurisdiction of the court rendering the judgment. Thus, in Bustard v. Morrison, 1 Scam. 236, the court say: “The statute makes judgments of the circuit court a lien upon all the lands of the defendant within its jurisdiction. * * * The judgment of a court creates no lien upon land beyond the limit of its jurisdiction, to-wit, the county in which such judgment is rendered. ” In Kinney v. Knoebel, 51 Ill. 119, it is said: “It is the settled law of this court that the lien of a judgment upon real estate is only eo-extensive with the limits of the county in which it is rendered, ” and see Durham v. Heaton, 28 Ill. 264; Ewing v. Ainsworth, 53 Ill. 465.

The only way, under the statute then in force, of obtaining a lien upon land in Tazewell county under a judgment in the circuit court of Peoria county, would have been by the levy of an execution upon the judgment, and filing a certificate of the same in the recorder’s office of Tazewell county, and it is the levy of execution, not the judgment or decree, that creates the lien in such case on land in another county. Tenney v. Hemenway, 53 Ill. 97. The case declares it not the policy of the law to favor secret liens.

The lien of a judgment, then, of the circuit court of a county not extending beyond the boundary of the county, and the lien of a decree for money, or for the performance of any act other than the payment of money, being by the statute limited in its extent the same as the lien of a judgment at law, (Eames v. Germania Turnverein, 74 Ill. 56,) it follows that the decree of the circuit court of Peoria county was no lien upon lands in Tazewell county. That court had no power to extend the lien of a decree beyond the territorial boundary to which it was limited by law, and by declaration to that effect make its decree a lien upon lands situated in another county. The liens created by judgments and decrees of the circuit courts in this State are purely statutory. Tenney v. Hemenway, supra. The power can not be derived, as is supposed, from section 6 of the chapter entitled “Divorces, ” Rev. Stat. 1845, p. 197, sec. 6, giving to circuit courts the power to “enforce payment of alimony by causing the defendant to give security for the payment thereof, or in any other manner consistent with the rules and practice of the court. ” This general power means no more than that resort may be had to the known modes, under the rules and practice of the court of chancery, of enforcing obedience to writs, orders and decrees, as, sequestration, attachment for contempt, etc., or the statutory method of creating a lien on lands within the court’s jurisdiction. It does not authorize the creating of a lien upon real estate outside of the territorial jurisdiction of the court. That would be in contravention of the express terms of the statute that the lien of decrees shall be of the same extent, and subject to the same limitations and restrictions, as that of judgments at law.

A very proper mode of security of payment in this case would have been as suggested with reference to alimony made a lien on land, in Erissman v. Erissman, 25 Ill. 136 : “And for the purpose of giving notice of the lien, it would have been proper to have required a mortgage to be given for the payment. ”

The bill in the divorce suit set forth that the defendant was the owner of the premises in controversy, and various other specifically described tracts of land in Tazewell county and other counties in the State: that said lands and defendant’s personal property were worth $50,000. The bill prayed for a divorce and alimony. The decree ordered that the alimony allowed by it should be in satisfaction of dower.

It is urged by appellee’s counsel that the decree ought to create the lien it professes to do, because the alimony is given in lieu of dower, and that the defendant had no power, by taking a change of venue, to deprive the complainant of any equity or right in the premises to which she would have been entitled had there been no change of venue, and that purchasers of the land after the rendition of the decree should stand affected in their rights by the decree as from the time of the commencement. of the suit, after the manner that pendente lite purchasers are affected in their rights from the time of the service of the subpoena in a suit. Had- the bill here set up some specific claim of right in this land, and the decree established it, we need not say what might have been the effect of the decree in the respect suggested. But there is no such case here. Although the lands are named in the bill, no right is asserted in respect to them, nor are they, or any part of them, asked to be assigned for alimony, or any other relief asked in regard to them,—they are mentioned for the apparent purpose of showing the amount of defendant’s property, as bearing upon the sum to be allowed for alimony. The decree allows as alimony a sum of money,—$500 a year,—and orders merely that the decree shall be a lien upon the lands as security for the payment of the alimony. Where land is no more involved than this in a legal proceeding, the commencement or pendency of the suit furnishes no notice to affect the rights of purchasers. We do not see that the circumstance that the suit for divorce was commenced in the circuit court of Tazewell county, and taken by change of venue to the" Peoria county circuit court, gives to the .decree of the latter court any more effect as a lien upon land in Tazewell county than it would have had if the suit had been originally instituted in the circuit court of Peoria county. Nor do we perceive that the alimony being decreed to be in satisfaction of dower, makes any difference as to the lien of the decree.

There is now a statute which meets such a case as that of plaintiff, it providing that where there has been a judgment or decree in any civil case in which the venue has been changed, a transcript of the judgment or decree may be filed in the office of the clerk of the court where the suit was instituted, and that the clerk shall enter the same in his judgment docket, and execution may issue thereon, and the same shall, from the filing of such transcript, have the same operation and effect as if originally recovered in such court. Rev. Stat. 1874, p. 1097, sec. 34. But this statute was too late to help the case of plaintiff, the passage of the statute being in 1874, and the rendition of the decree in 1859, and the sale and conveyance by John Wightman to William' Wightman in 1866.

The judgment' of the circuit court is reversed and the cause remanded.

Judgment reversed.

Mr. Justice Scott dissenting.