author: Cutting, J.:—

text:
      (Probate Court of Cook County.)

    Frederick H. Wachsmuth and Louis Wachsmuth, Executors of the Last Will and Testament of Henry F. Wachsmuth, Deceased. vs. Penn Mutual Life Insurance Co., et al.
    (1907.)
    1. Administration of Estates — Mortgage of Real Estate bt Executors — Creditors in Probate Proceedings — Priorities. A mortgage on the real estate of the deceased executed by the executors and securing their note is subject not only to the rights of such claimants as have proved their claims in the pending probate proceedings, but also to the rights of ail claimants who may thereafter prove claims due to them severally.
    2. Judgments — Former Adjudication — What Not. Unless the adjudication which is sought to be set up in bar is one in which the question involved in the proceeding in which it is plead, was in fact adjudicated or might have been adjudicated, it is no bar.
    3. Administration of Estates — Foreclosure of Mortgage Given by Devisee — Rights of Creditors of Deceased Parties. The rights ' of the creditors of a testate deceased in his real estate cannot in any way be affected by proceedings which have their inception in a mortgage given by the devisee after the death of the testator; hence neither such creditors nor the deceased executors are proper parties to such a proceeding.
    4. Same when not Res Adjudicata as to Executors. Even though the executors were proper parties to the foreclosure proceedings they were not bound by the decree in those proceedings in the failure therein to specifically attack their paramount right.
    5. Mortgages — Subrogation of New Mortgagee to Rights of Old, What Necessary. In order to subrogate a mortgagee to the rights of a prior one there must be some privity between not only the mortgagor and the mortgagee but between the mortgagor, mortgagee and original lienor so that the new lien is taken in substitution for the old and the proceeds of the new applied to the payment of the old.
    Petition to sell real estate to pay debts. Heard before Judge Charles S. Cutting. The facts are stated in the opinion of the court.

      William Garnett, for petitioners.

      Moran, Mayer & Meyer, for American Trust and Savings Bank.

      Ashcraft & Ashcraft, for respondent, Penn Mutual Life Insurance Company.
   Cutting, J.:—

This is a petition for the sale of real estate to pay the debts of the decedent founded upon a certain just and true account filed in this court on the 12th day of December, 1905, from which it appears that the total indebtedness of said estate consisted of the following items:

Claim allowed Amelia Hartman, Jan. 16, 1901 . .$ 400.00
Claim allowed T. C. Brown, April 9, 1901 ...... 290.00
Claim allowed American Trust & Savings Bank,
March 20, 1902 ........................... 10,258.33
Interest on said last claim from date of allowance to date of said just and true account........ 1,902.00
Making a total of debts of said deceased $12,850.33.

It also appears- that there were certain personal assets of the decedent amounting to $5,595.08, leaving a deficiency of personal property to pay debts of $7,254.25 at the date of said account.

The executors’ petition for the sale of real estate to pay said deficiency was filed April 7th, 1906. To this petition the heirs, devisees and legatees under the will of Henry P. Wachsmuth together with the grantees of said heirs and legatees and all parties in possession of the real estate were made parties defendant. The petition alleges that the decedent at the time of his death was the owner of and died seized in fee simple of several tracts or parcels- of real estate situated in Cook county, Illinois, one of which parcels of land is described as lots 22 and 23 in block 2 in the circuit court petition, of the S. E. quarter of sec. 3, T. 38, N. R 14 east of the 3rd P. M. in Chicago, Cook county, Illinois, and known as numbers 461 and 463 East 47th street. The petition further alleges that at the time of the death of the decedent, said last described property was subject to a trust deed made by decedent to Edgar M. Snow, dated April 15th, 1896, securing the payment of $11,000 by said Henry F. Wachsmuth, but further alleges that since the death of said Henry F. Wachsmuth, said trust deed has been released and said note cancelled, and that the Penn Mutual Life Insurance Company, Bernard Baumgarden and Henry F. West, trustee, have or claim to have some interest in the premises, which interest, if any, is subject and subordinate to the rights of the executors and of the creditors whose claims remain unpaid. As to this last described property only, the Penn Mutual Life Insurance Company defends and says, that the petitioners ought not to have and maintain their action for the sale of said premises, being a part of the premises described in said petition, because, they say, that in and by his last will and testament the said decedent Henry F. Waehsmuth gave, devised and bequeathed unto one of the petitioners, his son, Louis C. Waehsmuth, the said last described premises; that said Louis C. Waehsmuth on the 25th day of February, 1901, was fully seized of all title to said premises and in possession thereof and being so seized, made, executed and delivered his certain promissory note payable to his own order and by him endorsed and delivered, for the sum of $15,000, payable five years after date with interest at five per cent, and to secure the payment of said note and interest thereon, he, together with his wife, made, executed and delivered to Francis B. Peabody, trustee, a certain trust deed fully describing the premises last aforesaid, which trust deed was recorded on the 25th day of February, 1901, in the recorder’s office of Cook county, Illinois; alleges that said trust deed provides that in case of breach of any of the covenants or conditions therein contained, the legal holder or owner of said note might declare said note due and foreclose said trust deed, whether the same was due by its terms or not. Said defendant further alleges in his plea that on the 31st day of January, 1903, more than two years after-the issuing of letters testamentary aforesaid, and after the filing and allowing of all of the supposed claims and indebtedness, for which the alleged deficiency of personal property to pay debts in said petition arises, said defendant filed and exhibited in the superior court of Cook county, Illinois, its bill of complaint against the said Louis C. Waehsmuth and E. Mai Waehsmuth, his wife, and “against said Louis C. Waehsmuth and Frederick H. Waehsmuth, petitioners herein as executors of the last will and testament of Henry F. Waehsmuth, deceased” et al., to foreclose the trust deed of Louis C. Waehsmuth and wife to Francis B. Peabody, trustee, in which bill of complaint the defendant alleged said indebtedness of $15,000 evidenced by said promissory note five years after date with interest at five per cent, and the execution and delivery of said trust deed to said Peabody to secure the same. That said defendant was then and there the legal holder of said note and trust deed, that default was made in payment of one of the installments of interest .on said note, that-it was provided that in case of such default the holder of said note might declare the same to be at once due and payable without notice and foreclose said trust deed for payment thereof with interest and solicitors’ fees, etc.; alleges that there had been such default, that the legal holder had declared the whole of said notes due and payable, and that said petitioners as executors under said last will and testament, who were parties defendant, had or claimed to have some interest in said premises or some part thereof as “purchasers, mortgagees, judgment creditors or otherwise which interest, if any, had accrued subject to the lien of defendant’s said trust deed and was subject and inferior thereto.” Defendant further alleges the issuing of summons, and due service thereof upon the defendants thereto, petitioners here, and that thereafter said bill of complaint was taken as confessed against Frederick H. Wachsmuth as one of the executors of the last will and testament of Henry F. Wachsmuth, deceased, and upon the answer of Louis C. Wachsmuth, both individually and as one of the executors of the last will and testament of Henry F. Wachsmuth, and the report of the master in chancery, it was found by the superior court and adjudged and decreed by it that Louis 0. Wachsmuth and wife executed said deed of' trust, was indebted upon said promissory note for the full amount thereof with interest, etc., and that said defendant had a first lien on the premises hereinbefore, and in said trust deed, described. That payment was not made of the amount decreed to be paid, and that thereafter, the master in chancery, after advertising according to law, sold said premises for the sum of $17,004.75; that said master issued his certificate of sale‘and the report thereof was duly approved by the superior court of Cook county; that there was no redemption from said sale as provided by law and that on the 20th day of October, 1904, said master conveyed to this defendant the premises last aforesaid in fee simple, free and clear of all the supposed lien or claims of the defendant thereto, and of the right of the petitioners herein as executors of the last will and testament of Henry F. Wachsmuth to sell the same or any portion thereof to pay the debts of said Henry F. Wachsmuth, deceased.

This is a pure plea of res adjudicata, and if effectual is a perpetual bar to the sale of any portion of the premises therein described for the payment of the debts of Henry F. Wachsmuth, deceased.

It will be noted that at the time of the giving of the trust deed by Louis C. Wachsmuth and wife to Peabody, trustee, that the will of Henry F. Wachsmuth had been filed and probated in the probate court of Cook county, that one of the claims which forms the basis for the sale of real estate in this proceeding had been duly allowed, while the others, and by far the greater claims in amount, were not allowed in this court until after the execution of said mortgage. The purchaser of said note for $15,000 therefore had notice, not only that probate proceedings were pending, but that at least one claim had been allowed before the execution and recording of the trust deed foreclosed in the superior court, and there can be no doubt that in law at that time, the rights of the trustee and the holder of the note were subject, not only to the rights of such claimants as had proved their claims but to the rights of all claimants who might thereafter in due course of administration, prove claims due to them severally.

This proposition is not disputed seriously but it is claimed that by the foreclosure of this trust deed given by a devisee under the last will and testament of Henry F. Wachsmuth, claims duly proven and allowed against the said estate are barred as to this particular property, because the executors were at a later date, made parties defendant to the foreclosure of such trust deed given by the devisee and that there was in the decree of the superior court forclosing said trust deed the finding that the Penn Mutual Life Insurance Company, whose plea is under consideration, had a first lien on the premises described in said decree. It is insisted that this is a finding of priority which the court has jurisdiction to make, and that having made such finding, no matter how erroneous, from which no appeal was taken or writ of error prosecuted, that it is binding upon the executors and also upon the creditors of the estate of Henry F. Waehsmuth, because they in such proceeding were necessarily represented by said executors. It is conceded that the superior court is a court of general jurisdiction, and for the purpose of this opinion, it may be conceded that in contemplation of law, the superior court is a circuit court, and that a petition for the sale of real estate to pay debts might have been filed in the superior court, as well as in the circuit or probate courts. I am, however, wholly unable to agree with counsel for defendant, m his claim that this decree of foreclosure is, as to this proceeding in this court res adjudicata so as to bar the rights of the creditors of Henry F. Wachsmuth. It is needless here to go into any exposition of the law relating to former adjudication, but it is enough to say, and I think the position is sustained by the authorities, that unless the adjudication which is sought to be set up in bar is one in which the question involved in the proceeding which it is plead, was in fact adjudicated or might have been adjudicated, it is no bar. No case is cited by counsel on either side which is directly in point. I have been cited to no ease and have been unable, after diligent search, to find any case in which executors, during the period of administration, have been barred from selling real estate to pay debts because they were made defendants to and defaulted in a proceeding to foreclose a trust deed in the nature of a mortgage given by a devisee under the will through which they take title to their offices. The complainants in a bill to foreclose a mortgage given by a devisee in a will under which the executors are acting, could scarcely expect to litigate the question of priority in time as between themselves. The rights of the executors who claim through the ancestor, and directly from him, are necessarily from the very statement of the case, prior in time to those of the grantee of the devisee, so that an adjudication by any court that the rights of the devisee were prior in time to those of the creditors of the deceased, would much resemble an adjudication that two and two make five or that 1906 is a later date than 1907. The equities, however, of an incumbrancer holding under deed from a devisee might be superior, possibly, to the alleged claims of the executors or their privies, but if that question is to be determined in a proceeding to foreclose a mortgage, it necessarily injects into the foreclosure proceeding an absolutely alien controversy; the whole probate of the estate would necessarily be involved if the executors answered to the bill to foreclose that they had been appointed executors and that there might be claims filed, the amount of which they did not know because the period of administration had not yet expired, and there could be no adjudication unless the superior court chose to take, by reason of this fact, the entire administration of the estate, which would not do and never has done under such circumstances. As was said in Sutton v. Reed, 176 Ill. 70, in speaking of a partition suit commenced while the estate- of the ancestor was pending in probate, and it was sought to plead the decree in partition in bar of a claim filed in probate: “no question concerning the administration of the estate of Olivia Reed was raised or determined in that suit. The administration of that estate was then properly pending in the county court and the circuit court was not the proper forum to determine questions of the allowance of claims, and passing upon the accounts of the administrator.” In a later case, Crane v. Stafford, 217 Ill. 22, also a case in partition, the master sought to allow certain claims which were due from the ancestor to his creditors and to pay them out of the proceeds of the sale of the real estate. The supreme court said “such claims are properly cognizable in a court of probate having jurisdiction of the matter of the administration of the estate of the deceased, but it was erroneous to allow them to be presented before the master in chancery anti to decree that they be paid by that official out of the proceeds of the sale of land. ” Yet, if the executors sought in a foreclosure proceeding to set up their rights so that the court could determine that their equities were superior to those of the mortgagee, that court must go into that question; it must determine the condition of the personal estate of the decedent, whether or not there was a deficiency so that a sale of real estate would be necessary to pay debts and determine all the other questions which would arise on a petition filed for that particular purpose. It would mean that the mortgagee could, by filing his bill to foreclose a mortgage, force the executors into what would in effect be a cross-bill for the sale of real estate to pay debts, because otherwise there could be no adjudication of the relative equities; the mortgagee, and not the executors, then, would select the forum and the time for the filing of such petition to sell real estate to pay debts. The adjudication of the probate court as to the allowance of claims is not final in the first instance except as to the personalty. Ward v. Durham, 134 Ill. 195; Hopkins v. McCann, 19 Ill. 113; Moline Water Power Co. v. Webster, 26 Ill. 233.

It is perfectly well settled that on a petition to sell real ■estate to pay debts, the heirs may contest the allowance of the claims, and the executors (or the claimants acting through them) must reprove their claims to bind the realty; so that if in the foreclosure proceedings the heirs deny the validity of the allowance of the claims in the probate court, the circuit court in this forclosure matter would be obliged to take up and adjudicate each of the separate claims which constituted a part of the just and true account which must precede a petition to sell real estate to pay debts, thus creating numberless issues which are wholly foreign to a proceeding to foreclose and not cognizable therein. Not only that, but if the executors should attempt to assert their rights to this real estate at the time of the foreclosure, and the proceeds were not sufficient to pay the debts, the question of pro-rating between the several pieces of real estate, some of them included in the mortgage foreclosure and some not, would necessarily arise, since it would be quite inequitable to pay all of the debts out of one of the pieces of real estate when the several pieces were devised to different individuals, as in this case. This would require the summoning of all the other devisees, who are not interested directly in the foreclosure and would create still another issue wholly foreign to the foreclosure of the mortgage. But if "the proceeding should eventuate in decree and all these issues should be determined, giving all these conflicting individuals their rights in the premises and determining just how much of the proceeds should be taken for the payment of debts, the full remedy to which the executors are-entitled, as a matter of right, would be lost because a sale in foreclosure is always a sale with the right of redemption for’ a period of fifteen months, whereas the sale of property for the payment of debts is a sale without redemption, the purchaser immediately becoming owner thereof. It is needless to say that the rights of creditors are much better protected, through a sale without redemption than through a sale with one. The plea shows that no issue was ever tried as between the executors and the mortgagees as to the rights of the claimants against the estate of the deceased. The sole claim for res aqtjudicata is founded upon the usual finding in default eases that the rights of the complainants are superior and prior to those of the defendants. A defendant ought not to. be barred by an adverse finding in a proceeding in which his’ rights to the fullest extent could not be litigated.

It is a well settled principle of equity jurisprudence that one who claims rights in premises sought to be foreclosed, which are adverse to the title of the mortgagor and prior to. that of the mortgagee cannot be made a party defendant and compelled to litigate his adverse title in such foreclosure proceedings. Eagle Fire Co. v. Lent, 6 Paige, 637; Corning v. Smith, 6 N. Y. 82; Gage v. Perry, 93 Ill. 176.

It is true that the usual application of this principle is found in that class of eases where adverse legal titles are involved, the reason for the rule being sometimes given that the legal titles should be determined at law and sometimes that the interests of the third parties being adverse to both mortgagor and mortgagee and their privies, the controversy as to. such third parties is in no sense germane to the foreclosure. In the case at bar, the claimants against the deceased estate who are the real parties to the proceeding have interests which are both adverse and necessarily superior to the rights of the devisee mortgagor. Hence, the application of the principle of the cases cited. Why should their claims against the deceased be brought into a proceeding which cannot, from the very nature of things either affect or declare their rights ? In other words, the rights of the creditors of the testate deceased cannot be affected in any way by proceedings which have their inception in a mortgage given by the devisee after the death of the testator, and hence neither such creditors nor the deceased’s executors are proper parties to such proceeding.

But it is insisted that though not necessary parties, the executors are proper parties to the foreclosure.

While the eases are not uniform in their holdings, a long and well recognized line of decisions holds that even in the case of the foreclosure of a second mortgage, the finding in the decree that the second mortgagee has a first lien is not binding upon the first mortgagee though a party defendant, unless there are allegations in the bill which specifically attack the paramount right of the first mortgagee. It is further held that the usual allegation in the bill that “the defendants have or claim to have some interest in the premises, but that such interests, if any, accrued subsequent to the time of complainants’ mortgage and are inferior thereto” or any equivalent allegations, is not such an attack as will require the first mortgagor to answer, or support a decree by default as a bar to a subsequent bill to foreclose the first mortgage.

The holding is direct that such a decree, finding that a second mortgage is a first lien, is not res adjudicate, as to the priority of the mortgages. The only holding directly in point on this proposition in this state is Foval v. Benton, 48 App. 638, which is cited with apparent approval in Hibernian Bkg. Ass’n v. Law, 88 Ill. App. 18, but in other states there are many cases of like holding. Lewis v. Smith, 9 N. Y. 502; Strobe v. Downer, 13 Wis. 10; Puzzel v. Still, 63 Vt. 490; Bowne v. Page, 2 Tyler, 393. Jones on Mortgages, 6 Ed., See. 1439, and many cases there cited.

With how much greater force does the reasoning of those cases apply when the superior lien, instead of being one easy to ascertain, evidenced by a written contract of record and due at a specific date as in case of mortgage, is in process of determination in a court of competent juris-»diction, dependent upon complicated accounts, it may be upon the settlement of which and the determination of whether there is sufficient personalty to pay them, the very existence of the superior lien depends.

In the ease of the mortgage the ascertainment of the lien is usually a matter of computation only, as in the cases cited, supra, while in the matter of the lien of the debts of the testator a practically complete probate of his estate is necessary before it can be determined whether there will be such lien or the amount thereof.

Perhaps the case nearest in point is Emigrant Savings Bank v. Goldman, 75 N. Y. 127, which involved the question as to whether the holder of a prior mechanic’s lien, who was made a party defendant to the foreclosure of a subsequent mortgage under the usual formal allegation that the defendants have some rights which are subordinate to those of complainants, is barred by decree finding that complainant has first lien on property. The New York court of appeals said: “His claim was prior to the mortgage of plaintiff and he had a superior legal right to payment from the premises. It is settled that the only proper parties to a bill to foreclose so far as mere legal rights are concerned are the mortgagor and mortgagee and those who have acquired rights under them subsequent to the mortgagee (Eagle F. Ins. Co. v. Lent, 6 Paige, 635; Bk. of Orleans v. Flagg, 3 Barb. Chy. R. 318) and these parties only are affected by the judgment.”

The court holds that the decree as to the prior lien holder is not res adjudícala, even though he was a party defendant and the decree seems to determine the priority of the liens.

In view of the authorities-1 must find that it is doubtful whether the executors were even proper parties to the foreclosure suit, but in any event under the pleadings they are not bound by the decree. In this view of the case it is quite unnecessary to determine whether the executors so represent creditors of the estate, that such creditors are prevented from asserting their rights by reason of the failure of the executor to present their claims in the foreclosure suit.

I might add that I have received from counsel for the defendant, the citation of two cases: Kehm v. Mott, 187 Ill. 519; Rohrhof v. Schmidt, 218 Ill. 585. The language in the first of these taken by itself and away from the context seems to be directly in point and to sustain the controversy of the defendant, but a careful reading of the case shows that it applies only to a condition of things in no way like that at bar. The language of the court in that case was not necessary for the determination of the issues there made, is largely obiter and is not applicable specifically to the conditions that surrounded that case. The ease of Rohrhof v. Schmidt is one in which the question was really not involved.

On the question of subrogation, which is raised, not by this plea, but by the answer, the question must, it seems to me, be a question of fact. If the facts are such as are stated in the case of Bouton v. Cameron, 205 Ill. 59, there can be no subrogation. In other words, the defendant must bring itself within the rule which is laid down in Tyrrell v. Ward, 102 Ill. 29, and cases which follow that case, namely: that there must be some privity between not only the mortgagor and the mortgagee, but between the mortgagor, mortgagee and the original lienor, so that this new lien is to be taken in substitution for the .old and the proceeds of the new applied to the payment of the old. "Where, however, the new mortgagee is a mere volunteer who has no relation to the original mortgagee, he cannot ask to be subrogated to the rights of such mortgagee. If, then, that is the case in this instance, I shall have to find, as a matter of fact, that there was no subrogation.

This, I think, disposes of all the matters connected with the case, except possibly the one which is disposed of inferentially, and that is that the answer in this case overrules the plea. I do not think it does. The two things, in my opinion, are distinct, and I have disposed of the plea, as I conceive, upon its merits, holding it insufficient in law.


source: Caselaw Access Project

author: Stein, J.:—

license: Public Domain

text:
      (Court of Cook County.)

    Clingman vs. The World’s Columbian Exposition Co., et al.
    (May 29, 1893.)
    1. Corporations — Closing World’s Columbian Exposition on Sunday — Right of Stockholder to Interfere in Management — ■ Bill in Equity. A mere stockholder in the World’s Columbian Exposition cannot maintain a bill in equity to close the fair on Sunday as in the absence of fraud, breach of trust or ultra vires he has no right to interfere in the management of the corporation.
    .2. Same — Contract with Congress — Effect of New Condttions. Although the directors of the World’s Columbian Exposition accepted a gift from congress on condition that the fair should remain closed on Sunday, yet they have the right to rescind this contract as congress subsequently attached other conditions.
    3. Constitutional Law — Practice of Religion without Discrimination — Sunday Closing. Article 2 of the Illinois Constitution guaranteeing the free exercise of religion prevents Sunday closing based on a religious principle.

      4. Sunday — Closing Fair on that Day — Section 317 of Criminal Code — Disturbing Peace on Sunday. It can not be assumed without a showing that the opening of the fair on Sunday will disturb “the peace and good order of society” and thus violate section 317 of the Criminal Code.
    5. Equity — When United States not Necessary Party to Bill. No property rights of the United States being involved in this controversy, it is not a necessary party to the bill.
    6. Equity — Diversion of Public Property — Right of Taxpayer to Maintain Bill. A taxpayer has the right to maintain a bill in equity to enjoin a private corporaton from diverting public property from its dedicated use where such diversion affects his pecuniary interest as a stockholder.
    Y. Parks — Regulation of — Closing on Sunday — Burden of Proof — • Issuing Injunction. In view of the statute declaring that Jackson Park shall be a public park free to all persons forever, the burden is on the persons claiming that a rule closing it on Sundays is reasonable, and where this is not done, a complainant is entitled on the face of his bill to a preliminary injunction restraining the closing.

      Motion for preliminary injunction. Heard before Judge Stein. The facts are stated in the opinion.

      William E. Mason, for complainant.

      Edwin Walker, for defendants.

      Messrs. Gault & Street, for intervening petitioner.
   Stein, J.:—

The bill in this case prays for an injunction against the South Park commissioners and the directors of the exposition to restrain them from closing the south park, and more particularly the fair grounds, on Sundays. Upon a motion for a preliminary injunction based upon the bill, counsel for the respective parties and for Charles H. Howard, an intervening petitioner, presented their views and argued the questions at issue with considerable fullness. The court has also had the benefit of the arguments of the United States district attorney and of Mr. Huntley, one of the national commissioners, both of whom were present at the hearing.

Counsel for the complainant having limited his motion’to an injunction against the board of directors, it will not be necessary to pass upon the objections that have been made to the issuing of an injunction against the park commissioners.

In disposing of the motion the court can only consider the facts as set forth in the bill of complaint and the intervening petition, they being the only papers presented in support of the motion or in opposition to it.

The intervening petitioner prays for an injunction against the directors to restrain them from opening the fair on Sundays ; but at the hearing his counsel stated that they did not desire an injunction, and in their argument confined themselves to the presentation of objections to the injunction prayed for in the bill of complaint.

The complainant filed his bill in a dual capacity, as a stockholder and as a tax payer. His counsel, however, did not press his claims as a stockholder, and rested his argument principally, if not solely upon his rights as a tax payer. It is too clear for argument that as a mere stockholder the complainant cannot maintain this bill. In the absence of fraud, breach of trust or ultra vires, neither of which is alleged, a stockholder has no right to interfere with the management of affairs of the exposition by its board of directors.

As a tax payer the complainant claims that because under the act of the legislature of February 24, 1869, the lands and premises to be acquired by the South Park commissioners were “to be held, managed and controlled by them and their successors as a public park for the recreation, health and benefit of the public, and free to all persons forever, ’ ’ it was beyond the power of the park commissioners or the exposition authorities to close the park on Sundays, and that an injunction should issue on that ground alone.

To this view divers objections are made by the intervening petitioner, which will briefly be considered. In the first place it is contended that congress, having sole power and supreme jurisdiction, has enacted a law that the fair shall be closed Sundays. Even if it were true (which it is not) that congress had sole or supreme jurisdiction in the matter in hand, still, in the very first act of congress concerning the exposition and creating the board of national commissioners (approved April 25, 1890), it is provided that “nothing in this act shall be so construed as to override or interfere with the laws of any state.” The laws of this state touching the use of the park were therefore expressly left in full force and effect. Nor is it true that congress has passed a law requiring the fair to be closed on Sunday. On the contrary, it has carefully refrained from doing so, probably for the reason that it knew it had no power. What it did was by the act approved August 5, 1892, to make certain appropriations, including the $2,500,-000, “upon the condition that the said exposition shall not be opened to the public on the first day of the week, commonly called Sunday; and if the said appropriations be accepted by * * * the World’s Columbian Exposition upon that condition, it shall be and hereby is made the duty of the World's Columbian Exposition * * * to make such rule as * * # shall require the closing of the exposition on * * * Sunday.” It was only by the acceptance of this condition by the exposition board of directors that the clause forbidding Sunday opening became operative. In effect, congress offered them a certain sum of money, provided they would do a certain thing. They accepted the proposition, and thereby entered into a contract with congress. Had they not accepted it the Sunday clause would have been of no force or validity whatever, and would have remained what it was in the first place, a mere offer.

But as the directors did accept the condition, it is claimed, that they are bound by it; and the court should not enjoin them from doing what as a matter of sound morals and common honesty they are bound to do. On the other hand, it is urged that the subsequent action of congress has relieved the directors from the obligation of the contract. On March 3, 1893, congress ordered the payment of $570,808 for awards and certain other purposes, and specifically directed that this sum “shall be a charge against the World’s Columbian Exposition and that of the $2,500,000 appropriated under the act of August 5, 1892, $570,808 shall be retained by the secretary of the treasury” until the directors shall have furnished to his satisfaction full and adequate security of the repayment by the directors of the sum of $570,808 on or before October 1, 1893, “and until such security shall have been furnished this appropriation” (meaning the $570,808), or any portion thereof, shall not be available.

Having in August, 1892, donated to the fair a sum of money upon a certain condition, which was accepted, congress undertook in March following to withhold and has withheld over one-fifth of that sum unless certain security can be furnished by the directors,- — a requirement about which nothing was said, in August. Congress could not by itself alone change or impair the terms of the contract then entered into. As it takes-two to make a contract, so it takes two to unmake it or to- . change it. The money withheld, over one-fifth, constitutes a. substantial part of the original appropriation, and the withholding of it is such a breach of the contract as to relieve the directors from the effect of the Sunday clause, provided they return what moneys they received before the adoption of the act last March, and have accepted no substantial sum since they learned of its passage. There is nothing before the court to show any acceptance of moneys since the passage of the act.

“This is a Christian nation,” says the intervening petitioner, “and Christianity,” says' his counsel, “is a part of the law of the land;” and therefore the injunction should not be granted. The truth of this proposition, from a legal standpoint, is not beyond doubt, but conceding its correctness, the consequences predicated thereon do not follow. In the bill of rights, being art. 2 of the constitution of Illinois, the people of the state have declared: “The free exercise and enjoyment of religious profession and worship without discrimination, shall be forever guaranteed; and preference shall be given by law to any religious denomination or mode of worship.” But irrespective of the constitutional provision, grave difficulties present themselves as soon as it is sought to enforce practically the doctrine that the Christian religion is a part of our law. There is a well known Christian sect, the adherents of which believe that Saturday, and not Sunday, is the proper and rightful day of rest and worship and even among those who regard Sunday as the proper day there are serious differences of opinion as to the manner in which it should be kept. In this, as in other centuries, there are millions of professing Christians, members of churches and congregations, who see no wrong in taking recreation on Sunday. " Indeed, they welcome it as a day on which, in addition to religious worship, they have time to breathe the fresh air of the parks and the. country, and to listen to the sounds of song and music, and to view and admire the masterpieces of sculpture and painting. Even if Christianity be embedded in the law (which I repeat is not free from doubt), yet it by no.means follows that the Christian religion, as practiced by very large numbers of its devout believers, requires the fair to be closed on Sunday.

It is next objected that for the court to grant the injunction asked for would be a violation of the law of the state because section 317 of our criminal code provides that “whoever disturbs the peace and good order of society by labor or any amusement or diversion on Sunday shall be fined not to exceed $25.” It is assumed by the intervening petitioner and his counsel that keeping the fair open Sundays will result in a disturbance of the peace. They make no showing and produce no proof that such will be the case, or that the disturbance, if any, will be greater on that day than on any other. As a citizen, the court, with many others, is of the opinion that under the conditions known to prevail in this community, the opening of the fair on Sundays, instead of disturbing, will directly and powerfully conduce to “the peace and good order,” and (one may safely add) to the education and elevation of “society. ’ ’

It is next urged that the United States is a necessary party to the proceeding, but if it were made a party, this court would have no jurisdiction over it. The latter may be conceded, but it- does not appear that the government is a necessary or even a proper party. In the case cited by counsel, Springer v. Rosette, 47 Ill. 223, the bill was filed to set aside, as a cloud upon the complainant’s titles, a certain deed conveying his land to the United States, which had been sold to it by reason of his default in payment of an income tax due from him under the internal revenue law. There, the property rights of the United States were directly involved; here, so far as appears, no property interests of the government are at stake.

Lastly, it is said that the complainant cannot maintain his bill because he has no more interest in the subject matter than any other citizen or tax payer, and therefore the suit should have been brought by some representative of the people, such as the attorney-general or the state’s attorney. In support of this contention, counsel cites City of Chicago v. Union Building Association, 102 Ill. 379. That was a bill by the association, as a tax payer, and the owner of the building at the southwest corner of Washington and LaSalle streets, to enjoin the city from vacating LaSalle street between Jackson and Van Burén, in order to make room for the erection of the present board of trade building. The supreme court held that in the absence of a special injury on its part the association could, not maintain the bill, and that for any act obstructing a public and common right, no private action will lie for damages of the same bind as those sustained by the general public. It will be noticed, however, that suit was against a municipal and therefore a public corporation, and not, as here, against a private one. And even there the supreme court referring to many eases previously decided by it, announced as a well established rule that wherever the tax payer has a directed personal interest to be protected, for example, where the public authorities attempt to impose upon him an illegal or unauthorized tax, any one whose property will be affected may enjoin even a public corporation or its officers from collecting the tax. Chestnutwood v. Hood, 68 Ill. 132; Devine v. Board of Commissioners of Cook Co., 84 Ill. 590; City of Springfield v. Edwards, 84 Ill. 626.

In the present bill it is averred that the complainant has contributed large sums toward the establishment and maintenance of the exposition, and that the closing of the fair on Sunday will operate prejudicially to his pecuniary interests as a stockholder. He has therefore a direct personal, interest, to protect which he has filed this bill.

By the act of the legislature providing for the location and 'maintainence of the south park, the commissioners are to hold and manage the park grounds “subject to such rules and regulations as shall from time to time be adopted by them or their representatives for the well-ordering and regulation of the same.” Under this provision, the commissioners may make such rules and regulations as are reasonable and proper to effect the purposes for which the park system was established. It is charged in the bill that the park commissioners and the exposition directors “have agreed to close the whole or a part of the said land upon the first day of each week, commonly called Sunday, and thereby to prevent the admission and recreation to the public of said lands and premises,” and that neither the commissioners nor the directors had any right to enter into any such 11 agreement. ’ ’ It does not appear that the “agreement” to close the park was entered into in pursuance of any rule or regulation made by the commissioners, or that any rule was made by them regulating the admission to the park on Sunday or any other day. Upon the showing now made, and, even regarding the “agreement” as a rule, the court is not in a position to determine whether it is a reasonable exercise of the powers conferred upon the commissioners.

In view of the language of the act that the land shall be a “public park for the recreation, health and benefit of the public, and free to all persons forever,” it devolves upon those who claim that the exclusion of. the public on Sundays was rightful, to show the reasonableness of the action taken in that regard.

This not having been done, the complainant is entitled on the face of his bill, to a preliminary injunction as prayed for, and it is accordingly ordered to issue upon his giving the usual bond in such sum as may be fixed by the court.


author: Brad well, J.: — -

text:
      (County Court of Cook County.)

    In re Estate of James Lamble, Deceased.
    (January 19, 1869.)
    Executors and Administrators — Appointment of Foreign Consul as Administrator — Consul’s Privilege — Nature of Waiver. An application of a British consul to be appointed administrator of a deceased Englishman should be denied whether he applies as relative, creditor, friend or as consul; even though he agrees to waive his privilege for this, he cannot do it being in his government and not personal to himself.
    Petition to be appointed administrator. Heard before Judge James B. Brad well. The facts are stated in the opinion.
   Brad well, J.: — -

James Lamble, a British subject, died at Chicago on the 14th day of October, 1866, intestate, leaving no creditors or relatives in the United States, but leaving some money in Chicago. On the 19th of January, 1869, T. Frederick Wilkins, acting British consul, filed his petition and prayed to be appointed administrator of the estate of the said deceased on the ground that he was a friend of the deceased subject, and offered to waive his right as consul to object to any process of the court or order entered against him during the settlement of the estate. This court decided, in the case of Rosenthal v. Burrill, that where the British consul applied to be appointed administrator on the ground of his being a consul, that he had no standing in court and ought not to be appointed. This case is the same as that of Rosenthal v. Burrill, with the exception that the petitioner claims it on the ground of his. being a friend and offering to waive his right, etc. I am clear that it makes no difference in what capacity he applies, whether as relative, creditor, friend or British consul. If he is a foreign consul, and it so appears, his application should be refused.

. The privilege that the consul has to object to the process of the court is not a personal one. It belongs to the government he represents and cannot be waived by him.

The application is refused and the petition dismissed.

Note. — See the succeeding case. — Ed.


author: Bradwell, J.:—

text:
      (County Court of Coofc County.)

    Francis Wilkins, Acting British Consul, vs. Julius Rosenthal, Public Administrator
    (1866.)
    Executors and Administrators — Englishman Dying in Illinois— Appointment oe Administrator — British Consul — Public Administrator — Illinois Law. When an Englishman dies in Illinois, leaving property and neither relatives nor creditors here, not the British consul, hut the public administrator is the proper party to be appointed administrator, because the former is not amenable to the process of the court, and the latter is the one designated under the Illinois laws which alone control; neither Congress nor the English law have anything to do with the matter.
    Petition to be appointed administrator. Heard before Judge James B. Bradwell. The facts are stated in the opinion.

      Messrs. Hervey Anthony & Galt, for petitioner.

      Messrs. Rosenthal & Pence, for public administrator.
   Bradwell, J.:—

William Burrill, a British subject, died at Chicago, Illinois, on the 15th day of July, A. D. 1863, leaving neither relatives nor creditors in this state, but leaving money on deposit in the State Savings’ Institution, of Chicago, which the bank has refused to pay to her Brittanic majesty’s consul, on demand made for that purpose, but expressed its willingness to pay the same to any adminstrator of said state appointed by this court.

On the 24th of October, A. D. 1866, the said Francis Wilkins filed his petition in this court, and prayed to be appointed administrator of said estate upon the sole ground of his being “acting British consul.” On the same day, Julius Rosenthal filed his petition in this court, resisting the petition of the British consul, and prayed to be appointed administrator of said estate on the ground that he was public adininistrator, and that deceased left no relatives or creditors in this state.

In order to properly determine this case, it will be necessary to understand the duties of a consul in regard to the settlement of an estate where the parties interested are subjects of the government from which he is sent; and also to examine the statute of this state in regard to the appointment of administrators.

It is the duty of a consul to look after the interests of the subjects of his own government in the foreign government to which he is sent, and when called upon, to aid with all his pow■er, such subjects in getting their legal rights, and when property is left in such foreign country, belonging to such foreign subjects, with no one to look after it, it then becomes his duty to see that it is properly cared for, so far as permitted by the local law, and to act, for the time being, as the national agent or attorney of such absent subjects.

According to the general law of nations, it is not the duty of a consul, in case of the death of a subject of his government in the foreign country to which he is sent, leaving personal assets in such country, to do more than he can as consul, under the local law, and whatever he does in the premises must be done by virtue of his office as consul, and not as an officer of ■ a foreign probate court.

In the absence of an express statute conferring the power,, wherever a consul seeks to become an administrator, and an officer of a court of a foreign government, he lowers the dignity of his office and government, and is acting out of the line of his duty; it being his duty to watch over the interests of the absent heirs of the deceased,- who are subjects of his own government, and when administration is necessary, not to take it himself, but to aid the administrator of the foreign court to do his duty.

Can it be claimed that the court should appoint a British consul administrator today, and when, if tomorrow he should fail to perform his duty, the court should order him to proceed and, upon his refusal, an order to show cause why he should ' not be attached should be entered, he would have the right to come in and say, “I am her Britannic majesty’s consul in Chicago, 111., and you have no right or power to order me to do anything-; you cannot attach me. I defy the probate courts of America to deal with me.”

An administrator should never be appointed who cannot be made to feel the power of the court that appoints him, for a willful neglect of his duty. We have thus far spoken of the duties of a consul, in general, under the law of nations, without regard to the acts of congress, the acts of parliament, or the decisions of the English courts. An act of congress on the powers of consuls, passed 1792, provides that when the laws of the country permit, it shall be the duty of consuls to take possession of the personal estate left by any citizen of the United States who shall die within their consulate, leaving there no legal representative, partner in trade, or trustee by him appointed to take charge of his effects, collect the debts ■due to the deceased in the country where he died, and pay the debts due from his estate, which he shall have there contracted, and at the expiration of one year from his decease shall transmit the residue to the treasury of the United States." But, if,, at any time before such transmission, the legal representatives of the deceased shall appear and demand his effects in their hands, they shall deliver them up. By the act of August, 1856, it is provided that it shall be the duty of consuls, so far as the laws of the country will permit, to protect-the property of the deceased from any interference of the local authorities of the country where such citizen shall die. As to the power of consuls under this act, see the very able opinion given by at- . torney-general Cushing, 7 vol. Opin. 242. Under the act of 1792, cited above, Col. Aspinwall, the American consul-general, applied to the English ecclesiastical court to be appointed administrator on the estate of John Hammond, a citizen of the United States, who died in England, leaving personal assets there.

In delivering the opinion of the court, Sir Herbert Jenner •said: “It appears that, on the death of Mr. Hammond, Col. Aspinwall, the American consul in this country, took possession of the property about him, paid his funeral and other .necessary expenses, but upon application to Messrs. Baring & Co., they declined to pay over the money in their hands: until letters of administration were taken out and they could obtain a valid discharge. * * * I am not aware of any ease in which it has been held that, by the law of this country, it is competent to a foreign consul to take possession of the property of a foreigner dying, here in itinere, domiciled in his own country. * * * Is it then the law and practice of this court that such an administration should be granted ? I apprehend not, and that the Crown is the party to see that the properly of any person dying m its dominion gets into proper hands. It has been said that by the law of the United States, British consuls may take possesson of the property of British subjects in similar circumstances. But this is not by the law of nations, but by custom or by express enactment, and is not a law that this country is bound to follow; this country has not adopted the principle of reciprocity in this respect. I am of opinion that there is not sufficient evidence to show that the administration ought to be granted as prayed to Col. Aspinwall, and I reject his petition. No claim is made by the Crown. ’ ’ Aspinwall v. The Queen's Proctor, 2 Cur. Bee. 248.

The following authorities sustain the doctrines as laid down in the above case: In the goods of Beggia, 1 Add. Bee. 340; In the goods of Peter B. Wyckoff, 3 Sw. & Tr. 20; Dood and Brooks, Probate Practice, 415, arid note (q) Cootes’ Probate-Practice (5th edition), 130; The Public Administrator v. Hughes, 1 Bradf. 125; Ferrie v. The Public Administrator, 3 Bradf. 249, 265.

The British statutes of 1861, in regard to the right of foreign consuls to administer upon the estates of subjects of their governments dying in England, is as follows:

‘‘ Section 4. Whenever a convention shall be made between her Majesty and any foreign state, whereby her Majesty’s consuls or vice consuls in such foreign state shall receive the same or the like powers and authorities as are hereinafter expressed, it shall be lawful for her Majesty, by order in council, to direct; and from and after the publication of such order in the London Gazette, it shall be and is hereby enacted that whenever any subject of such foreign state shall die within the dominions of her Majesty, and there shall be no person present-at the time of such death who shall be rightfully entitled to-administer to the estate of such deceased person, it shall be lawful for the consul, vice consul, or consular agent of such foreign state, within that part of her majesty’s domains, where such foreign subject shall die, to take possession and have the custody of the personal property of the deceased, and to apply the same in payment of his or her debts and funeral expenses, and to retain the surplus for the benefit of the persons entitled thereto; but such consul, vice consul, or consular agent shall immediately apply for and shall be entitled to obtain from the proper court letters of administration of the effects of such deceased person limited in such manner and for such time as to such court shall seem fit.

The power to say who shall administer upon the estate of a British subject found in our state is not the British government, nor congress.

In fact, congress has no constitutional power to say who shall be an administrator in such a case, nor to enter into a valid convention with her Brittanic majesty for the purpose providing for the appointment of her consuls as administrators by our probate courts.

It is a power vested exclusively in the people of the state of Illinois, and the people have, through their legislature, provided that in case a non-resident dies and leaves estate in this state, and no next of kin, or creditors, that the public administrator shall be appointed administrator of such estate, and having said nothing of the British consul, or any other consul, I agree fully with the English court, “that this state has not adopted the principle of reciprocity in this respectand that to appoint the British consul would be against the policy of our state government and its express statute, and that until the legislature shall provide otherwise in case of the death of any non-resident leaving property, but no relatives or creditors in this state, that the public administrator “is the party to see that such property gets into proper hcmds.”

The petition of the acting British consul is therefore dismissed at his cost, and administration granted to the public administrator.

Note. — See the preceding case. — Ed.


author: McAllister, J.:—

text:
      (Recorder's Court of Chicago.)

    Crangle vs. Sloucen
    (September, 1869.)
    1. Contempt — Replevin—Taking Property From Plaintiff. Where a defendant from whom property has been taken under a replevin writ, pending the replevin proceedings, takes the property away from the plaintiff to whom the sheriff has delivered it, he is guilty of a contempt of court.
    2. Same — Defense—Avoiding Prosecution for Non-compliance With Public Rules — Writ of Court, Protection. The defendant cannot set up -in a contempt proceeding for retaking property delivered under a replevin writ that the property is a house which the defendant had been moving in the streets, and that to leave the house would subject him to prosecution for obstructing the public streets contrary to the permit to move which he had received from the board of public works, as the replevin writ being from a court of competent jurisdiction would be a complete defense in such case.
    Application for contempt attachment. Heard before Judge Wm. K. McAllister. The facts are stated in the opinion.
   McAllister, J.:—

This is an application for an attachment to punish the defendant in a civil suit for contempt. On the 29th day of August last, the plaintiff sued out of this court a writ of replevin against defendant for a house then on rollers in the street. The affidavit is sufficient and the usual bond was given to the sheriff, about noon of that day (being Saturday), the writ was executed by the sheriff taking the property from defendant and delivering the same to plaintiff, and serving the writ on defendant. On Sunday night next following, or early Monday morning, the defendant resumed possession of the property and moved on to the lot where he originally intended to take it, and has ever since had the control of it.

And the question arises: Is this a rescue of the property specified in the writ, whereby the sheriff was commanded to take this property and deliver it to the plaintiff, so as to constitute the act a contempt of court? The defendant’s counsel urge two points of defense.

1st. That the property having been replevied and delivered to the plaintiff, it was thereafter in his custody and not in the custody of the law, and that therefore the only remedy of the plaintiff is by another action as against a trespasser. 2nd. That because defendant had obtained a permit of the board of public works to move the building, he was compelled to complete the removal or be subject to prosecution for obstructing the streets. Upon the first point defendant’s counsel cite the case of the People ex rel. Wilder, Sheriff, etc. v. Church, 2 Wend. 261. This authority is so far as it.applies at all against the defendant. The case was a motion by the sheriff for an attachment against Church who was an imprisoned debtor, on jail limits. Church was exhibiting a gold watch in a bar room to an attorney, boasting of its value. The attorney took it, and handed it to a deputy sheriff present, who had an execution for $150 against Church. The deputy advertised the watch for salé and on the day of sale it was passed around for inspection, when Church snatched it from the hands of a spectator and walked off with it. The court, Marcy, J., says: V This is not a case in which the court will grant an attachment, An attachment, will issue for a rescue on mesne, but not on final process. The sheriff possessed as much power as the court can give him by the issuing of an attachment. He might have commanded what force he wanted to prevent the carryng off of the watch. Besides he is entitled to his action against the defendant.” When the court stated that it would not grant an attachment for a rescue under final process it meant in such a case as that, where the recovery was for damages, and the court loses jurisdiction of the defendant, by the judgment; but in ejectment where the judgment awards the possession to the plaintiff, it will grant an attachment, for rescue under final process. A writ of replevin however is mesne process. The rescue in this ease was not from the sheriff after he had taken the property by the writ, and before the delivery of it to plaintiff; but from the plaintiff himself after it had been delivered to him. The writ has not been returned into court and it not returnable until next month. Then does the rescue from the plaintiff himself constitute a contempt of court? The property was delivered to the plaintiff lawfully, and solely by virtue of the writ; and if he hold it until the determination of the suit he holds it by the writ. He has given bonds for its return if return be awarded, as between the parties to the suit, the property in the hands of the plaintiff was in the custody of the law, and could not have been taken out of his possession, unless the writ had been sued •out by him fraudulently, and as a cover to defendant’s property even by an execution against defendant, Rhines v. Phelps, 8 Ill. (3 Gil.) 455, 464. Neither could the defendant repossess himself of the property, by suing out a writ of replevin for it against the plaintiff. In Morris v. DeWitt, 5 Wend. 71, the defendant in a replevin suit caused a writ to be issued in his own behalf for the same property; but the court on motion superseded his writ with costs. The circumstances of the rescue being from the plaintiff himself is no answer. In a case of a plaintiff having been put in possession by a writ of possession in ejectment and a rescue made by the defendant, it is not from the officer but the party. In such a case the court will issue an attachment for contempt. And the principle is precisely analogous. In United States v. Slaymaker, 4 Wash. C. C. 170, the court says: “For if, after he is put into possession, and the officer has departed, he is again turned out 'by the defendant, he may upon a suggestion, vice comes non misit breve obtain an attachment, or sue out a new habere facias possessionem, so as to regain the possession. If he is turned out by a stranger the rule is otherwise, for he is then put to his ejectment or to his writ of forcible entry and detainer; because in the latter case the title never was„tried in respect to a stranger.” A replevy bond operates as a judgment until "breach pf its condition. Hagan v. Lucas, 10 Pet. 400. Let ns consider what would be the effect upon the rights of the plaintiff, if the court is powerless to protect him in his possession under the writ. This house when severed from the realty is personal property and subject to a writ of replevin; but so soon as it again becomes permanently annexed to realty it ceases to be personal and becomes real property, and therefore beyond the reach of a writ of replevin. Ogen v. Stock, 34 Ill. 522. The facts show that it has already been placed upon another lot whether permanently annexed or not is not shown. Suppose it has as it might be, then the plaintiff could not take it either by the same or an alias writ. He goes to trial and perchance proves it to be his property and has a recovery accordingly. The property having been taken and delivered to him, he cannot recover the value of the property, but only the damages for being deprived of it from the time of defendant’s capture of it in the first instance. He can not add a count in trover in his declaration because the property was found and delivered to him. His only remedy would be if he have any by another action of trespass or trover for this rescue, to recover not the specific property, but damages. Suppose you take a favorite family picture to an artist to be copied, and he refusing to deliver it back, you replevy it; as soon as delivered to you by the officer, the artist seizes it by force, makes off with it, and conceals it. Are you to be thus defeated in gaining possession of that which is of little money value in market, but of incomparable value to you, and put to your action of trover or trespass for damages? But if the article have great intrinsic value, how is it then? The action of replevin is frequently resorted to when property has been wrongfully taken or detained, because the guilty party is insolvent. If he can thus rescue the property and the court is powerless to compel him to restore it, then the writ is wholly useless, a valuable legal right is taken away by a party’s own wrongful act and insolvency becomes both a sword and shield.

The second point made by the defendant is wholly untenable. It is a pretext and nothing more. Any.good lawyer would have told him that he could not be held liable for not doing that which he was prevented from doing by the writ of a court having jurisdiction of the subject matter. And it is a singular fact too that he continued to move the house until ■ he got it on the very spot to which he originally intended to convey it. Therefore it is considered by the court that the defendant in receiving the property in question from the plaintiff after it had been delivered to the latter by the sheriff is guilty of a contempt for which it is adjudged that he pay to the plaintiff a fine of one hundred dollars and the costs of this proceeding, and also that the defendant be committed to the Cook county jail until such fine is paid and until he restores to the plaintiff the property rescued.

       Fed. Cas. 16,313 — Ed.


author: Tuley, J.:—

text:
      (Circuit Court of Cook County. In Chancery.)

    Glover vs. Couch, et al. Rice vs. Couch, et al. Couch vs. Glover, et al.
    (May 26, 1889.)
    1. Receivers — Appointment of — Power of Court of Equity. There is no doubt as to the power of a court of equity, pending litigation to take the possession of property from persons holding the legal title by appointing a receiver to hold and control the same until the' controversy is finally decided.
    2, Same — Principles Governing. The power to appoint a receiver is one which the court exercises with reluctance and with great caution. It does so only to preserve the property for the benefit of the party who may be entitled to it.

      3. Equity — Maxim—Proof of Fraud. Equity imputes good faith rather than bad faith. Fraud must not only be alleged; it must be proven.
    4. Equity — Fiduciary' Relations — Termination of — Constructive Trust — Fraud. Where the defendants have occupied a fiduciary relationship toward the complaining party and by reason thereof obtain his consent to the sale of certain of his property and the defendants buy in this property at the resultant sale, it is too late for them to claim that the fiduciary relationship has terminated and the property which they have obtained in this way, if still in their hands, will be impressed in a court of equity with a constructive trust in favor of the complaining party or his creditors. In such a case it is not necessary to show actual fraud; the law presumes fraud when the relationship is shown.
    5. Receiver — Appointment on Motion — Sufficiency of Evidence. On motion to appoint a receiver, it is not necessary for the complainant to show absolutely that he will ultimately prove his case; it is only necessary to show a strong probability that he will finally be entitled to a decree against the defendants.
    Creditor’s bill and cross bill. Motion to appoint receiver. Heard before Judge Murray F. Tuley. The facts are stated in the opinion.
   Tuley, J.:—

. The cross bill of James Couch contains a very voluminous history of the transactions out of which this litigation has arisen. The main facts alleged are that in 1875, James Couch was the lessee of the Tremont House in this city, holding a ten years’ lease, which was afterwards, by agreement, to terminate in 1880, and also owned all the furniture therein, which cost some $200,000. That in the year 1875 the defendant, Du-pee became Ms legal, and the defendant, Chumasero, his confidential financial adviser. That these two defendants having through these fiduciary relations acquired an undue influence and control over Couch, then about eighty years of age, devised early in 1879 a fraudulent scheme to obtain possession of the hotel and the ownership of the furniture for their own profit and advantage. That to that end they induced Couch to agree to surrender his lease, then having over a year to run, to John A. Bice (also a defendant), and to consent- to a new lease to Bice for five years, and to a sale of the furniture under the chattel mortgage securing a debt of $50,000 which was then upon it; the said Dupee and Chumasero to buy it in, sell one half to Bice and out of the profits of the hotel to pay whatever remained unpaid upon that part of the mortgage debt which it was expected to have extended; also to pay out of such profits the debts of said Couch, if any, which it might become necessary to discharge; and at the end of the five years to turn over the hotel and one half interest in the furniture to Couch. That for that purpose Couch furnished about $20,000 to be paid as purchase money on the sale that was to be had.

That the, lease of Couch was surrendered, a new lease made to Bice for five years and the furniture sold under the chattel mortgage to the bookkeeper of the hotel for the amount of the mortgage debt. That a new mortgage was made for $40,000 and the balance, $15,502.92 paid in cash. That immediately Gregg the bookkeeper made a bill of sale to Dupee and Chumasero. That Bice contributed $3,000 of the cash paid, under a previous agreement made between Bice and Dupee and Chumasero, to the effect that he, Bice, should furnish that amount towards the purchase, and upon payment of one half the amount that it might be purchased for, he was to receive a bill of sale of such half; and also that the furniture if purchased, should remain in the hotel and the net profits of the hotel should be divided one half to Bice and one quarter to each Dupee and Chumasero.

The tripartite agreement also in substance provided that if the furniture should not be purchased at the sale, Bice should be assisted by the other parties to buy new furniture to take the place of the old. It also contained certain provisions for the board of Couch and family during the term of the lease and the payment to Couch of $25.00 per week for his services.

That large profits have been made since then, January, 1879, by which not only has the $40,000 been paid, but many thousands of dollars besides received, which Rice, Dupee and Chumasero have appropriated to their own use, and now deny that Couch has any interest in the furniture or in the profits of the hotel or that any such agreement as alleged by Couch was ever made.

' The cross bill and the creditors’ bills seek to have the sale -of the furniture declared void and for an accounting. The allegations of the cross bill would probably if sustained, justify a decree that the defendants, Rice, Dupee and Chumasero held as trustees and are liable to- account as such.

The defendants deny substantially all the allegations of the complainants, particularly and in detail all charges of fraud, Dupee and Chumasero in substance alleging that Couch was insolvent, that it was impossible for Couch to get an extension as to his debts, or to continue business, that it was only a question as to which creditors should get a preference as to the small amount of assets that Couch had in his control. That they were creditors — Dupee as a member of his firm of Hitchcock, Dupee and Judah, to the amount ■of $5,275, and Chumasero to the amount of $5,000 — and that all moneys, notes, etc., turned over to them was in payment of their debts and insufficient to pay the same. Also that their fiducary relations to Couch having ceased, they had as much if not a better right to a preference than any other creditor, and as to the purchase of the furniture that they bought in good faith at a public sale and had as much right to buy as any other person. That they, being instrumental in obtaining the loan of $50,000 to be made to Couch, were under a moral obligation to see that the money should be made on the mortgage sale.

The defendants deny any agreement'with Couch or that any trust relations exist now or did exist when the lease or furniture was acquired, and deny that the same were acquired for the benefit of Couch or his creditors, or with any ■such understanding or agreement.

The legal title to the lease is in John A. Rice and the legal title to the furniture is as to one half in Bice and the other half in Dupee and Chumasero.

Couch claims to be the equitable owner of the lease and of the whole or at least one half of the furniture while the creditors of Couch claim that they have the right to have the furniture and the profits received by Dupee and Chumasero applied in satisfaction of their debts.

A receiver of the lease and furniture is moved for as, against defendants, Bice, Dupee and Chumasero.

"While there is no doubt as to the power of the court pending litigation to take the possession of property from persons in whom the legal title is vested, by appointing a receiver to hold and control the same until the controversy concerning it is finally determined, yet the power is one the court exercises with reluctance, and with great caution. It does so only to preserve the property for the benefit of the party who may be found entitled to it.

Feeling the grave responsibility east upon the court by this motion for the exercise of this power, I have carefully read over the evidence submitted and have reached a conclusion only after mature reflection. I shall not comment upon the evidence submitted. As there must hereafter be a final hearing of the cause, it would not be proper for me, on this motion, to review the evidence. I shall therefore announce my conclusions so far only as I deem necessary for the decision of .this motion.

I have not been able to reach the conclusion that there is a probability that the complainants will ultimately be entitled to a decree as against the defendant, John A. Bice.

If the complainants succeed ultimately in establishing the fact that there was a fraudulent scheme or conspiracy on the part of Dupee and Chumasero as alleged in the bills of complaint, the evidence now produced fails to satisfy me that Bice was a party thereto or that he acted with knowledge of any such scheme or conspiracy.

He occupied no fiduciary relation to Couch, and in making the contract which he did with Dupee and Chumasero, I am not now prepared to say that he acted with the intent to defraud Mr. Couch or to aid the other defendants to defraud either Couch or his creditors. Equity imputes good faith rather than had faith. Fraud must not only be alleged but it must be proven as against the defendant Bice.

As to the defendants Dupee and Chumasero, I do not deem it necessary at this time to express any opinion as to whether the proofs sustain or fail to sustain the charges of fraud and fraudulent conspiracy set out in the bills of complaint.

Nor is it necessary to now decide whether the evidence shows them to be in possession of the property upon the express trusts of the agreement alleged to have been made with Couch, or as trustees ex maleficio by reason of an alleged undue influence and control over James Couch, or by reason of having used the alleged agreement to buy in and hold the property as a means to carry out their preconceived intention to obtain the legal title and defraud both Couch and his creditors as alleged in Couch’s bill of complaint.

I deem is sufficient to say that in my opinion the evidence tends strongly to prove that at the time when Dupee and Chumasero conceived and had partly consummated their scheme of having a chattel mortgage sale made of the furniture and buying it in, in their own name and for their own use and benefit, and of having an agreement or understanding with Bice to the effect that he, Bice, should furnish a part of the purchase money and have an interest therein, that the same when purchased should remain in use in the hotel for the period of the lease obtained or about to be obtained by Bice, they, Dupee and Chumasero, to receive one half the net profits of the hotel during such lease — they occupied such fiduciary relations towards Couch, and had acquired such influence over him by reason of such relations that equity will impress a constructive trust upon the property purchased and the profits realized therefrom in favor of Couch as the party beneficially entitled thereto. It was too late for Dupee and Chumasero to terminate those relations and avoid the effects of their having existed between the parties.

I believe this would be the case whether the defendants, Du-pee and Chumasero intended any fraud or not.

While it is true that in some cases persons occupying fiduciary relations may contract with the cestui que use, as to the property connected with such relations or may under certain circumstances beome the owners thereof; yet I am of the opinion from the evidence presented, that considering the peculiar circumstances of this case, the embarrassed condition of Couch’s matters, his extreme old age, the great influence and control which these parties had obtained over him, the intimate and close trust and confidential relations existing between them and Couch, there is a strong probability that complainant Couch will be entitled to a decree — that as against him they cannot hold, and that it would be unconscientious to permit them to retain the property purchased or the profits realized therefrom.

Being of this opinion, the property being of great value with large profits accruing therefrom and Dupee and Chumasero claiming to own the same in their own right, I hold that a receiver should be appointed as to their undivided one half interest in the furniture and as to the profits arising under the contract with Bice in order that the same may be preserved for the party that shall ultimately be found entitled thereto.


text:
      (Circuit Court of Cook County.)

    The People vs. Adsit, et al.
    (1868.)
    Bail — Admission ito — Power or Court oe Another Circuit — Arrest on Indictment. A court of another circuit than that in which a prisoner has been indicted and is held in custody has no power to admit him to hail.
   Habeas corpus. Heard before Judge Erastus S. Williams. Adsit and Abbey were indicted in the Kane county circuit court, charged with obtaining the conveyance to themselves of a farm, by false pretences. A capias was issued, and they were arrested by the sheriff of that county. No order for the taking of bail was made by the circuit court of Kane county, and the defendants were lodged in jail at Geneva. They sued out a writ of habeas corpus from the circuit court of Cook county, asking to be let to bail, and setting up the illness and inability to act of the judge of the Kane circuit, as a reason for applying to the circuit court of Cook county.

Judge J. G. Wilson appeared in opposition to the application, and suggested a doubt as to the power of the circuit court of Cook county to admit the petitioners to bail. He reviewed the provisions of the statutes, and claimed that the only provision in relation to the taking of bail, after indictment found, is the 175th section of the criminal code, which provides as follows: “It shall be the duty of the circuit court, when any indictment shall be found as a true bill, to make an order, fixing the amount of bail to each offence bailable by law, to be endorsed on the process of the clerk.” He claimed that the 206th section applies only to the cases of persons committed to jail on a criminal charge for want of bail after a hearing by an examining magistrate; in which cases any judge or two justices may take bail. He also cited the acts of congress of 1789 and 1793, which provide that in case of the absence from a district of a judge of the United States district court, a judge of a state court, mayor of a city, etc., may take bail; and he claimed that this was in the nature of a legislative construction, that, in the absence of such a provision, no other court or tribunal would have power to admit to bail.

He referred to the fact that the court of king’s bench, in England, as the superior court of the realm, and having the control of all superior courts, exercised the power to admit to bail in all cases where the inferior court had failed to do so; that under our system circuit, courts are of equal dignity and power, and each the superior court within its jurisdictional limits. He also quoted the remark of Lord Bacon, “It is a general rule that whosoever may judge of the offense may bail the offender,” and claimed that as the indictment is pending in another circuit, the circuit court of Cook county has no jurisdiction to try and determine the case, and therefore may not take bail.

Mr. Pulver for the petitioners urged the great hardship in this, as well as other similar cases that might arise, if the law as claimed by Judge Wilson was to prevail, and urged that the court under the circumstances ought to interpose and admit the petitioners to bail.

Judge Williams, in delivering his opinion, remarked that the question presented was a new one, and he had suggested tó the petitioners’ counsel at the time of allowing the writ, his doubts as to the power of the court to take the desired action. He said as the case stood it was one of great hardship, and it was his duty to admit the defendants,to bail if, Under the law, he was authorized to do so. On the other hand, the people were entitled to have legal and competent bail, and if he were to act without authority the bail would be unavailing. Upon such examination as he had been able to give the question, his doubts as to the power of the court to act were only strengthened, and he' felt it to be his duty to deny the prayer of the petition and remand the prisoners into the custody of the sheriff of Kane county.