text:
    The People ex rel. Parnell Munson v. Joseph E. Gary.

      Filed at Ottawa January 31, 1883.

      1. Practice—cause continued when motion for new trial is not decided. Where a motion for a new trial is entered at the term the trial is had, and the court adjourns without disposing of the motion, under the statute the motion will stand continued until the next term.
    2. Bill of exceptions—when to he presented. A party moving for a new trial is not bound to present a bill of exceptions containing the evidence, etc., on the trial, until a final judgment is rendered, and if the motion is not decided until the next term of court, a motion for such bill of exceptions on the day the motion is overruled, is in time. At the time the motion is overruled, and final judgment entered, the bill of exceptions must be presented for the signature of the judge, or an order must be obtained from the court extending the time to a future day.
    3. Where a party does not present a bill of exceptions at the time a motion for a new trial is overruled, which is at a term subsequent to that of the trial, but procures an order of court extending the time, within which he prepares and presents a bill of exceptions, he will be in apt time.
    4. Same—when the judge does not remember the evidence. The fact that the judge trying the cause does not remember the evidence on the trial, will not justify him in refusing to sign a bill of exceptions presented to him in the time allowed. If the evidence was not reduced to writing, or preserved by a short-hand reporter, and the judge fails to remember it, the witnesses who testified on the trial may be examined again by him, on a motion for a bill of exceptions, in regard to what they testified to on the trial, and in that or some other way he should determine the evidence to be incorporated in the bill of exceptions.
    This was an application in this court for a peremptory writ of mandamus, to compel the respondent, Joseph E. Gary, one of the judges of the Superior Court of Cook county, to sign and seal a bill of exceptions tendered to him. The facts of the case are stated in the opinion of the court.
    Mr. Randall H. White, for the petitioner:
    If the answer does not deny or confess and avoid all the material allegations of the petition, those not so denied or confessed and avoided must be taken as true. Greater certainty is required in the return,—now called answer,—than in a plea in bar, and every intendment is made against the answer, when it does not answer the important facts. People v. Ohio Grove Town, 51 Ill. 195; People v. Kilduff, 15 id. 502; State v. McLean, 9 Wis. 207; High on Extraordinary Remedies, sec. 492; Tapping on Mandamus, 349, 352, 370; Moses on Mandamus, 210.
    Ordinary rules of pleading applicable in mandamus: Silver v. People, 45 Ill. 224.
    If a bill of exceptions presented does not state the facts truly and. fairly, it is the duty of the court to point out wherein it is incorrect, and to correct the same. Seibright v. State, 2 W. Va. 591.
    If the judge can not remember the evidence, he may examine the witnesses as to what they testified to, and in this or some other mode determine the facts. People v. Williams, 91 Ill. 91; People v. Jameson, 40 id. 96; Weatherford v. Wilson, 2 Scam. 256.
    As to the necessity and purpose of preserving the evidence in a bill of exceptions: Bandruff v. Craig, 14 Ill. 394; Kinney
      v. People, 3 Scam. 357; Rogers v. Hall, id. 5; McLaughlin v. Walsh, id. 185; Bowder v. Johnson, Breese, 61.
    Petitioner could not know he would need a bill of exceptions until the motion for a new trial was overruled. Goodrich v. Cook, 81 Ill. 41.
    Where a party does all he can to have a bill of exceptions signed, he should not be prejudiced. Underwood v. Hossack, 40 Ill. 98.
    The application for a bill of exceptions at the time the motion for a new trial was overruled, was in apt time. Hearson et al. v. Graudine, 87 Ill. 116.
    Messrs. Tenney, Flower & Cratty, for the respondent:
    A bill of exceptions should be signed and settled only at the term at which a cause was tried, or within such time as is provided for by order of court entered at the trial term. Rev. Stat. chap. 110, sec. 60; Evans v. Fisher, 5 Gilm. 453; Dickhut v. Durrell, 11 Ill. 72; Hance v. Miller, 21 id. 636; Neece v. Haley, 23 id. 416; Hassinger v. Rye, 10 Mo. 156; Ruble v. Thomasson, 20 Maine, 263; Lathrop v. Page, 26 Mo. 119; Vandever v. Griffith, 2 Metc. (Ky.) 425.
    The motion to vacate the judgment, and for a new trial, entered by petitioner at the December term, did not operate to carry the case over to the next term, so as to give the court control over the judgment, and a right to settle a bill of exceptions at that term. In all the cases in this court where a motion to set aside a judgment has been acted upon at a term subsequent to that at which the judgment was entered, such motion has been expressly continued to that term. Windett v. Hamilton, 52 Ill. 180; Toledo, Peoria and Warsaw Ry. Co. v. Eastburn, 79 id. 140; Combs v. Steele, 80 id. 101; Hibbard v. Mueller, 86 id. 256; Hearson v. Graudine, 87 id. 115; Dent v. Davison, 52 id. 109.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a petition for mandamus, to compel Joseph E. Gary, one of the judges of the Superior Court of Cook county, to sign and seal a bill of exceptions in a certain cause which had been tried before him at the December term of court, 1879.

It appears from the record that the cause was tried in the absence of petitioner, who was defendant in the action, although he had a plea to the merits on file, and judgment was rendered against him for $803.32, December 17, 1879. On the 24th day of December following, and at the same term of court, petitioner, in open court, entered a motion to vacate the judgment, and for a new trial. This motion remained pending and undisposed of in the Superior Court at the end of the December term, and by operation of law stood continued to the next term of the court. It also appears that on account of the absence of Judge Gary'from the Superior Court, holding the Criminal Court, in the month of January, the motion could not be disposed of before the 24th day of January, 1880, at which time the motion was, by direction of the judge, set for a hearing. On the day named, the judge not, however, being able to attend, by order of court the motion was continued until January 30, when the judge again being unable to attend, by order of court the motion was continued until February 2, 1880, when the parties appeared, the motion was heard and overruled, and petitioner then and there excepted to the decision and judgment of the court. It also appears that petitioner, at the time the motion was overruled, prayed an appeal, and obtained an order of court giving him twenty days within which to prepare and present a bill of exceptions, and within the time allowed, and on the 14th of February, a bill of exceptions, purporting to contain all the evidence heard on the trial of the cause, was presented to the judge, who.declined to sign the same,*and then and there intimated to petitioner that he would not sign any bill of exceptions that contained the evidence given upon the trial. Petitioner then obtained an order of court extending the time twenty days, from the 14th day of February, to present a bill of exceptions. It also appears that within the .time allowed, and on the 28th day of February, petitioner presented a bill of exceptions, which purported to contain the evidence heard on the trial, to the judge, and also produced the witnesses who had testified on the trial of the cause, and offered to prove by them what the evidence was on the trial of the cause; but the judge refused to hear such evidence, and refused to sign any bill of exceptions which purported to contain the evidence heard on the trial.

The grounds of the refusal to sign a bill of exceptions are set out in the answer of respondent, substantially as follows: “That when said relator presented for the first time a bill of exceptions for settlement and signature by this respondent in the said case of Charles B. Farwell and others against said relator, and on or about the 14th day of February, 1880, respondent did not then, remember what evidence was given upon the trial of said cause; that he took no notes or memoranda of such evidence, nor was any stenographic or other report thereof taken,- so far as respondent is informed, and that no statement or memorandum thereof, claimed or purporting to have been taken at the trial of said cause, has ever been presented to respondent, or in any. way brought to his notice; that at the time respondent, as one of the judges of the Superior Court of Cook county, overruled and denied the motion made by relator for a new trial in the said case of Farwell and others against him, this respondent had no distinct recollection as to what evidence was given upon the trial of said cause, and was unable to remember the same so as to predicate any judicial action whatsoever thereon; that said cause had been tried ex parte more than two months prior to that time, and being’ undefended did not impress itself upon the memory of this respondent as a contested case would have done, and that respondent then believed, and now believes, that he had no authority to determine, either upon affidavit or by oral examination of witnesses, what the evidence was upon said trial; that this respondent never doubted or denied the right of relator to a bill of exceptions containing a true recital of all that occurred upon the hearing of the motion the denial of which was the subject of exception, but then was, and still is, of opinion that the method of presenting the evidence, or relator’s version thereof, upon the hearing of such motion, should have been, as heretofore indicated by this honorable court on several occasions, and particularly in the case of Motsinger v. Coleman, (or Wolf,) reported in the 16th volume of Illinois Reports, at page 71 thereof, and that therefore this respondent refused to settle and sign a bill of exceptions in said cause containing what was claimed by relator to be a statement of the evidence given upon said trial, and to certify in said bill that such statement embraced all the evidence given on said trial, unless the parties to said cause would agree that the same was a correct statement of all such evidence. ”

Was the application of petitioner for a bill of exceptions on February 2, 1880, made in apt time, or was he bound to present the bill of exceptions to the judge at the December term, when the cause was tried ?

It will be observed that petitioner entered a motion for a new trial at the term of court the cause was tried. The court adjourned without disposing of the motion, and under section 38, chapter 37, Rev. Stat. 1874, the motion stood continued until the next term of court, when, by order of court, the motion was continued until February 2, 1880, and then heard and overruled. The petitioner was not bound to present á bill of exceptions until such time as a final judgment should be rendered in the cause, and as the legal effect of the motion for a new trial, when regularly continued, was to stay final judgment until the motion was overruled, as held in Hearson v. Graudine, 87 Ill. 115, it seems plain that petitioner’s motion for a bill of exceptions on the 2d day of February, 1880, was made at the proper time. As we understand the practice, at the time the motion for a new trial was overruled and the judgment became final, petitioner was then required, if he desired a bill of exceptions signed, to present it to the court for the signature of the judge, or obtain an order of court extending the time to a future day. Evans v. Fisher, 5 Gilm. 453; Hance v. Miller, 21 Ill. 636; The People v. Williams, 91 id. 87.

In the Evans case, cited above, it is said: “A bill of exceptions should be reduced to form, and signed during the term in which the cause is tried, except in cases where counsel consent, or the judge, by an entry on the record, directs that it may be prepared in vacation, and signed nunc pro tunc. ” Of course, what is meant by the expression, “the term in which the cause is tried, ” is the term at which the final judgment is rendered in the cause. It would be useless labor for a party to prepare a bill of exceptions before the motion for a new trial had been passed upon, as it could not be known whether the bill would be needed until the final action of the court on the motion. Here petitioner did not present a bill of exceptions at the time the motion for a new trial was overruled, but he procured an order extending the time, and within the time prescribed by the court a bill of exceptions was prepared, and presented to the judge for his signature. This was, in our judgment, in apt time. Indeed, respondent does not, in his answer, claim that petitioner lost his right to have a bill of exceptions signed by a failure to present one in apt time, but, as we understand the answer, he claims that he did not remember what the evidence introduced on the trial of the cause was, and that he did not believe he had the authority to determine, by affidavit or by an oral examination of witnesses, what the evidence was on the trial. It is doubtless true, that where a judge tries as many cases as the judges of the Superior Court do, it is difficult for one of them to remember the evidence introduced on the trial two months before, unless there was something about the case to attract particular attention; but still, this fact forms no good reason why a party should be denied the right of appeal or writ of error, which might be the result if a bill of exceptions could not be obtained, as many eases can not be properly presented on appeal or writ of error without a hill of exceptions. If the evidence introduced on the trial was not reduced to writing, or preserved by the notes of a short-hand reporter, and the judge did not remember the evidence, and the witnesses who had been sworn on the trial were brought before the court on the motion for a bill of exceptions, as was held in The People v. Williams, supra, he might have examined them again in regard to what they had testified to on trial, and in that or some other mode determined the evidence to be incorporated in the bill of exceptions.

From the facts appearing in this record we are satisfied that petitioner is entitled to a bill of exceptions, to be signed by respondent, which shall contain the evidence heard on the trial, and such other proceedings in the cause as do not appear of record.

The peremptory writ of mandamus is granted.

Mandamus granted.

Mr. Justice Walker: I am unable to concur in the conclusion announced in this case.


source: Caselaw Access Project

author: Mr. Justice Dickey

license: Public Domain

text:
    August H. Mey et al. v. Elsie M. Gulliman, Admx.

      Filed at Springfield November 21, 1882.

    1. Res judicata—what so regarded. Where a bill in chancery calls for answers under oath, which are filed, denying the material allegations of the bill and the equities of complainant, and no replication is filed, but the bill is dismissed, on complainant’s motion, without any words in the order showing it is without prejudice, it is a matter of grave doubt whether such an order does not render the matters alleged and denied res judicata as between the parties.
    2. Chanceby—evidence to overcome sworn answer. Where a sworn answer is required, and filed, denying the material allegations of the bill, it is evidence for the defendant of such force that the complainant can have no decree against him until the same is disproved by evidence equal to that 'of one witness, and in addition thereto a preponderance of proofs sufficient to have sustained the bill if the oath to the answer had been waived.
    3. Same—sworn answer as evidence in second suit. If a complainant, after the coming in of sworn answers, dismisses his bill, and then files another setting up substantially the same grounds for relief as in the former one, but waiving answer under oath, such sworn answers filed in the prior suit will remain evidence, and the complainant can have no decree under his second bill until such sworn answers are overcome by a preponderance of other proofs.
    4. Witness—credibility. The testimony of a party to a bill in chancery directly contradictory of his sworn answer to a former and similar bill seeking the same identical relief, is unworthy of belief.
    5. Fraudulent conveyance—fraud not presumed. Fraud as against creditors is never to be presumed when the transaction may be fairly reconciled with honesty.
    Appeal from the Circuit Court of Christian county; the Hon. W. E. Welch, Judge, presiding.
    It is conceded by all parties in this case, that Henry Lenders, in 1867, made a contract to purchase of Martha A. Paisley the land in controversy, a quarter of a s'ection, at the price of $1750, and gave to her his three promissory notes, bearing interest from date, at the rate of ten per cent per annum,—one for $750, payable June 1, 1868, one for $500, due June 1, 1869, and a third for $500, due June 1, 1870, —and took from her a bond for a deed upon the payment of these notes, under which contract he went at once into possession, and continued to live upon the land until March, 1876, when the possession thereof was taken by Mrs. Doratha Hienman, and her husband, Charles Hienman, who occupied the same at the time when this suit was brought, .and when the decree in this case was made. When the first payment fell due it was paid. Three hundred dollars of the money used in this payment was borrowed of one Blume, and $100 from Sophia Brinkerhoff, and to secure Blume the title bond was assigned to him. Soon after this, Mey, at the request of Leuders, paid Sophia Brinkerhoff and Blume the money they had loaned, and with the consent of Leuders the bond was assigned by Blume to Mey. When the bond was assigned to Mey, in 1868, he took it as security for moneys paid out by him for Leuders, at his request. ' In 1869 Mey paid off and discharged the note given for the second payment, and in 1870 Mey paid in full the note given for the last payment, and at that time Mrs. Paisley conveyed the land to Mey by general warranty deed, with the knowledge and consent of Leuders. On August 21, -1871, Henry Leuders gave Mey his note for $500, payable one year from date, with interest at ten per cent, and secured the same by a chattel mortgage upon the personal property on the place.
    In 1872 Leuders entered into a written contract with Mey, by which Mey employed Leuders to cultivate the farm for him, and agreed to pay him $300 for six months’ work. In this writing the land is called “the farm of August H. Mey. ” On August 7, 1871, Leuders gave to Mey a note and chattel mortgage, in which he declared himself indebted to Mey in the sum of $1180, and agreed to pay the same, with interest at ten per cent, six months’ from that date.

      On February 6, 1875, complainant recovered a judgment against Leuders for $1998.20. On February 18, 1875, the personal property named in the chattel mortgage of August 7, 1874, was sold under that mortgage, and Charles Leuders, a son of Henry Leuders, and who lived on this land with his father, became the purchaser, at prices which amounted to $704, and gave his note to Mey for'that amount, and secured the same by a chattel mortgage upon the same property. On the 22d of February, 1875, Mey, with the knowledge of Leuders, leased the land to Charles from March 1, 1875, to March 1, 1876, at a rental of $400, (one-half to be paid in October, 1875, and the residue in January, 1876,) and the tenant to pay the taxes for the year 1875. On February 27, 1875, execution was sued out upon complainant’s judgment, and the same, on May 15, 1875, was returned nulla bona. In March, 1875, Mey gave a mortgage upon this land to George R Reese, for some $2000, money borrowed from him, and this mortgage was placed on record.
    On July 19, 1875, Mrs. Gulliman, the complainant in the cause at bar, filed her creditor’s bill in chancery, making defendants thereto Henry Leuders, A. H. Mey, George R. Reese, Charles Leuders, and Johanna Leuders, who is the wife of Henry Leuders, calling for a discovery, under oath, of any and all property interests of Henry Leuders, equitable or otherwise, and asking that the same, when discovered, should be subjected to the payment of her judgment against him, already stated, and charging that all sales and assignments made by Leuders, if any, were fraudulent and void; and especially charging, as to this land, that Henry Leuders had paid the purchase money to Mrs. Paisley, the former owner, with money borrowed for that purpose, and had caused the land to be deeded to August H. Mey, reserving a secret trust in favor of Henry Leuders, or some member of his family, and that Henry Leuders had held possession ever since 1868, enjoying the rents and profits.' The bill called for answers under oath, and a full, detailed history of all the transactions relating to the land and the rent thereof, and of all sales or assignments of personal property made by Henry Leuders, and especially a full history as to the nature and amount of the consideration of the chattel mortgage for $1180, made on August 7, 1874, and the purposes of the same.
    To this bill, Mey, on August 23, 1875, filed his sworn answer, in which he says that about the first of October, 1868, Henry Leuders, having borrowed money of Blume, of St. Louis, and assigned to him the Paisley bond for this land, to repay the same borrowed of him (Mey) about $360, and in addition borrowed of him about $420, and these sums were used to pay the first installment of the purchase by Leuders from Paisley, or to repay money which had been borrowed for that purpose by Leuders, and for these advances Leuders agreed to assign the title bond to him, and soon afterwards the bond was so assigned; that in 1869, when the second payment fell due, Leuders had no money, and was unable to make any part of the payment, and thereupon an agreement was made between Leuders and Mey that Mey should and would make the remaining payments on the Paisley bond, and take the land in satisfaction of the whole purchase money thus paid by Mey, and that in pursuance of that agreement Mey did make the second and third payments to Mrs. Paisley, and received from her a deed, in 1870, conveying the land to him absolutely, and that the amount paid for the land by Mey in that way amounted to about $2000; that Henry Leuders rented the premises of him (Mey), and agreed to pay rent therefor; that a part of the rent was to be paid by improvements to be made on the land, in breaking up ground, building fences and a house; that the rent for 1868 and 1869 was to be paid by improvements, and for the years 1870 and 1871 the rent was to be paid in cash, at three dollars per acre; that in 1872 Mey employed Leuders to work the. farm for him, by the month, (which contract was in writing, and was attached to the answer as an exhibit,) and Mey received the crops raised on the farm in the year 1872, and paid Leuders for the cultivation thereof, according to that contract; that for the years 1873 and 1874 Henry Leuders occupied the premises under a lease from Mey, at a rental of three dollars per acre; that the chattel mortgage of August 21, 1871, above mentioned, was given to secure to Mey $500 which Leuders then owed him, on account of Lender’s partial failure to make improvements, for the use of the land, in 1868 and 1869, and for unpaid rents for 1870, and for other items of account then owing to Mey by Leuders; that after that mortgage became due, it was unpaid, and Leuders had, in addition thereto, become indebted to Mey for rent, and for money loaned to him by Mey, and paid out for him, and thereupon Leuders gave his note to Mey, August 7, 1874, for $1180, to be paid at six months, with interest at ten per cent, and to secure the same gave the chattel mortgage of that date; that the property named in that mortgage was of the value of $704, and that this mortgage was given to secure a bona fide indebtedness from Leuders to him; that Leuders still owed him the amount of that $1180, and interest, less the credit of $704 for proceeds of sale of the property.
    On the same 23d day of August, 1875, Henry Leuders, Charles Leuders, and Johanna Leuders, each filed a separate sworn answer to that bill. In each of these sworn answers the statements of Mey as to his agreement, in 1869, with Henry Leuders, to make the full payments on the land, and to take the same as his own, and the statements of Mey as to the leasing of the land from time to time by Mey, and the statements of Mey as to the bona fide character of the chattel mortgages, are all and each reiterated under oath, and separately, by Henry Leuders, Charles Leuders, and Johanna Leuders. In addition to this, Henry Leuders, in his sworn answer, in August, 1875, denies that he is, in any way or manner, beneficially interested in any real estate in this State,
      and denies that he is beneficially interested in any contract or agreement relating to -real estate, or the rents, issues or profits of any real estate, or in any chattels, of any name or kind, save certain household goods, not exceeding $100 in value. In addition to the reiteration of Mey’s statements, Charles, in his sworn answer, says he took possession of the chattels bought by him at the chattel mortgage sale on February 18, 1875, for $704, and that he is the owner thereof. These sworn answers were filed at the August term, 1875, of the circuit court, and during the same term, and on the 4th day of September, 1875, the complainant, G-ulliman, by her solicitor, came into court, and “upon his motion, ” as the record says, “it ivas ordered by the court that this cause be dismissed, at complainant’s costs.”
    On the 21st day of October, 1875, Mey sold and conveyed, by warranty deed, the land in question to Mrs. Doratha Hienman, and her deed was put on record. At her purchase Mrs. Hienman paid to Mey $2888, and as a part of the purchase price agreed to pay Mey’s note to Eeese, secured by mortgage upon the land for money borrowed by Mey in March, 1875, amounting, at the time of her purchase, to about $2100,—making in all near $5000. In March, 1876, soon after the expiration of Mey’s lease to Charles Leuders, Mrs. Hienman, and her husband, Charles Hienman, in some way not shown by the record, obtained exclusive possession of the land, and were thus in possession when this suit was begun and when the decree in this case was rendered, and pending the suit, Mrs. Hienman, to protect her purchase from sale under the Eeese mortgage, paid off that mortgage.
    The suit at bar is a creditor’s bill, filed on the 17th day of July, 1876, against Henry Leuders, Charles Leuders, August H. Mey, and Doratha Hienman, and her husband, Charles Hienman, founded upon the same judgment set out in the bill of 1875, and contains, in substance, the same allegations presented in the former bill, and seeks the same relief, and does not differ in substance from the former bill, except in this, that in this bill the oaths of defendants to their answers are waived, and in the statement in this bill of the purchase from Mey by Mrs. Hienman, and the taking possession by her and her husband, and the addition of a charge that she purchased with notice of complainant’s rights. Henry Leuders and Charles Leuders suffered this bill to be taken as confessed against them, for want of answers. Mey and the Hienmans answered the bill fully, stating the history of the transactions up to July, 1875, in the same manner, and nearly in the same words, as the same was stated in the sworn answers of Mey, and Henry Leuders, Charles Leuders, and Johanna Leuders, filed to the first bill, as above stated. In addition, the purchase of Mrs. Hienman was stated and charged to have been made for a full consideration, in good faith, and without notice. To this answer a replication was filed.
    After this replication was filed, the defendants, by leave of court, filed a plea setting out in full the bill and answers, and final order of court in the. former suit, and insisting upon the same as a bar to this suit. On the same day the cause was brought on for final hearing, as the record states, “and tried upon the bill so taken as confessed against the defendants Henry Leuders and Charles Leuders, and upon the pleadings of the respective parties filed herein, and upon the testimony of witnesses sworn and examined in open court, and documentary and written evidence in behalf of complainant, and also in behalf of defendants Doratha Hienman, and Charles Hienman, and August H. Mey; and the court having heard all the testimony offered, takes the cause under advisement.” This was at the August term, 1877. The cause was continued from term to term, until the November term, 1880. At that term a decree settling the relative rights of the parties was entered, finding, among other things, that on the 19tli of October, 1868, the title bond of Paisley to Henry Leuders was assigned by Blume to Mey, under an agreement between Leuders and Mey, and that Mey took the assignment in trust for Leuders, and to secure himself for money already paid by him for Leuders, and for money and property to be thereafter paid and advanced by him to and for the use of Leuders; that in pursuance of this agreement with Leuders, Mey after-wards paid to Martha Paisley certain notes of Leuders, held by her for purchase money, and upon full payment of the said purchase money she, on August. 12, 1870, conveyed the land in question to Mey; that Mey, in pursuance of that agreement with Leuders, took that deed and the title to the land in trust for Leuders, and to secure himself the repayment of money advanced by him for and to Leuders; that Mey continued to hold the land so in trust and for security until October 21, 1875, when he conveyed the same to Mrs. Hienman, and that in March, 1876, she took possession under that conveyance, and has since occupied and enjoyed the use thereof; that at the time of her purchase Leuders had full right to redeem, and complainant’s judgment was a lien upon that right of redemption; that Mrs. Hienman took the property with full notice of the equities of Leuders, and of the lien thereupon of complainant, and that said deed to Mrs. Hienman was made with intent on the part of her and Mey to hinder and delay complainant in the collection of her judgment. The decree sets aside the deed to Mrs. Hienman as against complainant, but holds it valid to the extent of subrogating Mrs. Hienman to the equities of Mey, to the balance found to be due from Leuders to Mey, upon an account to be taken, to the extent of the consideration paid by her to Mey.
    By the decree the cause was referred to the master to ascertain the amount due to Mey from Leuders, and also the amount paid by Mrs. Hienman to Mey. This was done in December, 1880. The master reported to the June term, 1881, that the amount due to Mey from Leuders for moneys advanced, with interest, was $5537.21, and the amount paid to Mey by Leuders, with interest, was $983.64, leaving a balance due Mey on this account of $4553.57; that the rent of the premises from March 1, 1876, to March 1, 1881, occupied by Mrs. Hienman, with interest, was $2692.80, and deducting for improvements made by her, $936.01, charges Mey in account with Leuders, on this account, with $1756.79, making in all due Mey fr’om Leuders to entitle Leuders to the land, the sum of $4553.57, less $1756.79,—leaving a total of $2796.78. In this account no notice is taken of the amount due to Eeese upon his mortgage of March, 1875.
    The master also reports that Mrs. Hienman paid to Mey, in cash, on December 25, 1875, on her purchase of October 21, 1875, the sum of $2888, and afterwards paid off the Eeese mortgage for $2800. These amounts aggregate $5688, which Mrs. Hienman had paid on the property, so that, to make her whole, charging her with the use of the property, the sum of $3931.21 would have to be paid to her.
    After the master’s report was approved, leave was given complainant to amend her bill so as to charge Mrs. Hienman with rents of the premises; but the court refused to allow Mrs. Hienman leave to file a cross-bill asking that she be subrogated to the rights of Eeese under his mortgage, in discharge of which she had paid $2800.
    The decree directs, in default of Lenders’ paying to Mrs. Hipnman $2796.78, and to complainant the amount of her judgment, that the property shall be sold, and after paying costs out of the proceeds, the master shall pay to Mrs. Hienman, with interest from date, $2796.78, and to complainant her judgment, and interest, and that the balance thereof be paid to Leuders, and on the payment by Leuders of the above sums to Mrs. Hienman and to complainant, then the absolute title to the property shall be conveyed to him. Mey and Mrs. Hienman appeal to this court.

      Mr. G. B. Crooker, Mr. G. M. Stevens, and Mr. E. Lane, for the appellants:
    That the dismissal of a bill, not without prejudice, after the defendants have answered under oath denying the material allegations of the bill, is a bar to a second bill between the same parties concerning the same subject matter, see Story’s Eq. Jur. sec. 1523; Garrick v. Chamberlain, 97 Ill. 639; Philadelphia Fire Ins. Co. v. Central National Bank, 1 Bradw. 357; Insurance Co. v. Central National Bank, 7 id. 429; Freeman on Judgments, (2d ed.) sec. 270; Durant v. Essex Co. 7 Wall. 107; Thurston v. Thurston, 99 Mass. 39; Barrowscale v. Tuttle, 5 Allen, 377; Foote v. Gibbs, 1 Gray, 412; Ferris v. McClure, 40 Ill. 99; Smith v. Newland, id. 400.
    Fraud is never presumed, but must always be proved by the parties alleging the same.
    To constitute a deed absolute in form a mortgage, it must be to secure some indebtedness which is enforcible in law or equity. Carr v. Rising, 62 Ill. 14; Price v. Karns, 59 id. 278.
    A clear preponderance of evidence is required to show a deed is only a mortgage. Duren v. Blake, 44 Ill. 39; Potts v. Cable, id. 103; Shays v. Norton, 48 id. 101; Sharp v. Smitherman, 85 id. 154; Lindner v. Cummings, 57 id. 195.
    Mr. J. G. Koester, for the appellee:
    The dismissal of a bill is a bar to a second suit only when the court determines that the complainant has no title to the relief sought, and therefore a dismissal for want of prosecution is no bar. Cooper’s Eq. Pleading, 270; Mitford’s Eq. Pleading, (by Tyler,) 330.
    If the complainant, after the putting in of defendant’s answer, conceives he shall not be able to effectually prosecute his suit, he may apply to the court for leave to dismiss his bill, with costs; and this is a motion of course. 1 Barbour’s Ch. Prac. 225, 228; 1 Daniells’ Ch. Prac. (4th ed.) 790.

      ' It may be stated as a general rule, that a voluntary dismissal of a bill by the complainant will not prevent the filing of a new bill. It is not pleadable unless it is a dismissal upon the hearing. 1 Barbour’s Ch. Prac. 228.
    Mr. W. M. Pboyine, also, for the appellee, presented a very exhaustive argument upon the evidence in the case,—and further, insisted the case of Garrick v. Chamberlain, 97 Ill. 639, cited by appellants’ counsel, is an authority directly against the position that the matter of this suit is res judicata. The record shows that the former suit was dismissed for want of prosecution, which is no more than a mere non-suit, and therefore concludes nothing against a party or his privy. Herman on Estoppel, see. 151; Mitford’s Pl. 195; 4 Johns. Ch. 300.
   Mr. Justice Dickey

delivered the opinion of the Court:

In a suit in chancery, where the bill calls for answers under oath, and where sworn answers have been filed denying the equities of the complainant, and where no replication has been filed, and where, after answers are so filed, it is, on motion of complainant, ordered by the court that the bill be dismissed at the costs of the complainant, and no other words of the order indicate that the bill is to be dismissed without prejudice, it is a very grave question whether such an order can be set up successfully as a complete bar to a subsequent suit by the same complainant, against the same defendants, seeking the same relief, and upon the same alleged equities. The writer of this opinion is inclined to think that such an order, under such circumstances, renders the matters alleged and denied res judicata as between the parties, and that defendants can not afterwards be required to litigate the same de novo. It is, however, unnecessary, in the view we take of the case, to decide this precise question, and we forbear to do so.

If it be assumed that such an order is to be treated as a non-suit at law, still it is very clear that a complainant, thus met with sworn answers denying the equity of the bill, can not properly be allowed to get rid of the obstruction thus presented by merely dismissing his bill, even without prejudice, and then filing a new bill waiving the oath of the defendants. In this case, when the sworn answer of defendant Mey was filed, in August, 1875, it became evidence against the complainant in his favor, of such force that complainant could have no decree against him until the same was proven false by evidence equal to that of one witness, and in addition thereto a preponderance of proofs sufficient to sustain the bill if the oath to the answer had been waived. If it be conceded that complainant may file another bill, and litigate the matters upon their merits, this sworn answer remains proof on record against her, and she can have no decree until this is overcome by a preponderance of other proofs.

The parties agree in saying that the Paisley title bond was at first taken by Mey as the property of Henry Leuders, assigned to Mey as security to him for the repayment of moneys before that advanced by him to and for Leuders, in the making of the first payment under the bond. Mey claims that when the second payment fell due, in 1869, Henry Leuders, being unable to pay the same, abandoned the purchase, and made an agreement with Mey, in substance, that Mey should accept the equitable interest of Henry Leuders in satisfaction of past advances, and would make the second and third payments to Paisley, and take a deed for the land as absolute owner, and that Henry Leuders should retain the possession for two years as tenant to Mey, and that certain improvements made and to be made on the place by Henry Leuders should pay for the use of the place by Leuders for the two years, 1868 and 1869. Complainant denies that this agreement was made. This is the hinge of the case, and on this the merits of the case depend.

On that question Mey has proofs, as follows: His own sworn answer, and in corroboration thereof the fact that on August 21, 1871, Henry Leuders gave his note to Mey for $500, and secured the same by a chattel mortgage; and the fact that in 1872 a written contract was made between Henry Leuders and Mey, in which the land is mentioned as “the farm of August H. Mey, ” and by which Leuders agrees, for a fixed compensation, to cultivate it for Mey; and the fact that in August, 1874, Henry Leuders gave to Mey his note for $1180, to be paid in six months, and secured the same by a chattel mortgage; and the fact that in February, 1875, this last note not being paid, the property was sold, under the mortgage, to Charles Leuders for its full value, and the father having failed to pay the rent, and having no instrumentalities to farm with, the land was leased to Charles, who was living with his father on the farm; and the fact that when this lease expired the possession was given to Mrs. Hienman, to whom Mey had sold the land.

The only evidence tending to contradict this statement of Mey as to his having taken the property as his own, in 1869, is the testimony of Henry Leuders, Charles Leuders, and Johanna Leuders, directly contradicting the statements of their sworn answers, and the testimony of Henry Leuders, Jr., a son of Henry Leuders, saying that in July or August, 1875, (which was very shortly before the sworn answers of Mey and his wife, and his son Charles, were filed,) Mey told Charles Leuders and the witness that he had the title for security, and if they worked well they could pay the loan debt. The testimony of Henry Leuders, the father, and that of Charles and Johanna Leuders, being directly contradictory of their sworn answers, is utterly unworthy of belief. The testimony of Henry Leuders, Jr., is directly contradicted by the testimony of Mey, who swears positively that he made no such statement.

The weight of the evidence shows satisfactorily that, in 1869, the agreement set up by Mey was actually made by Mey and Henry Leuders, and from that day forward Henry Lenders had no real right, equitable or otherwise, to the land, save while he occupied as a tenant of Mey, and his rights then were merely those of a tenant.

We think, from the evidence in the case, that it is probable Mey was a friend of Leuders, and was willing and endeavored to befriend him and his family, and that he may have said, to the sons that he was willing to turn over the property to them on payment to him of what he had paid out for the same, and of what their father owed him. There is no charge in the bill of any intention to defraud, or hinder, or delay any creditor of Henry Leuders, except the complainant. There is no proof or allegation in the bill that the debt on which complainant’s judgment was rendered had any existence until in February, 1875. Before that time, in 1871, Henry Leuders was in debt to Mey, and gave his note and chattel mortgage to him for $500, and in 1872 he entered into a written contract to cultivate the farm for Mey, in which he speaks of the farm as “the farm of Mey.” In 1874, before complainant’s debt is shown to have been in existence, Henry Leuders took up his $500 note, given in 1871, and having become further indebted to Mey, gave him his note and a chattel mortgage for $1180, to be paid in six months. In March, 1875, when, according -to the testimony of Mey, which is uncontradicted, Mey had no knowledge of complainant’s judgment, having found that his forbearance with Henry Leuders, the father, failed to produce good results, and having sold out the stock and farming utensils under the last mortgage, to Charles, leased the land to Charles for a year. Fraud is never to be presumed when transactions may be fairly reconciled with honesty, and if the weight of the evidence is in favor of that conclusion, it should always be adopted.

In view of the whole record, the judgment of this court is that the decree be reversed and the bill dismissed.

Decree reversed.


author: Mr. Chief Justice Scott

text:
    Adam S. Hetfield v. Herbert E. Willey.

      Filed at Ottawa January 31, 1883.

    1. Decree-for payment of money must be according to contract. On a bill for the specific performance of a contract, bearing elate July 6, 1880, for the payment of money, payable in one and two years from its date, with interest, it is error to decree its payment in one and two years from the first day of August, 1880. Should the contract be enforced at all, it must he done as the parties made it.
    2. Specific performance—matter of legal discretion. An application for the specific performance of a contract is within the sound legal discretion of the court, which is always controlled by the equitable circumstances of the case, and not by the mere caprice of the chancellor.
    3. Same—character of contract enforceable. Before a court of equity will compel the specific performance of a contract, it must appear that it was founded on a good and valuable consideration, and is reasonable, fair and just in all its parts. If the contract is not fair and just, or its enforcement specifically will he oppressive, or work a hardship, or is inequitable, it will not be so enforced. A court of equity is not bound to enforce every contract, though legal, and there be no sufficient reason for annulling the same.
    4. Where one partner sold his interest in the firm to another for a sum to be paid in installments, a part in a few days and the balance in one and two years, for which two last installments the purchaser was to give Ms notes, secured by mortgage on real estate, with interest, and it appeared that the vendor concealed the fact that the firm was indebted largely in local debts not appearing upon the firm books, so that the assets of the firm were not nearly so valuable as the purchaser supposed them to be, the account of such indebtedness being kept in a private book of one of the partners, of which the purchaser had no notice, the contract will not be specifically enforced at the suit of the vendor, notwithstanding some delay on the part of the purchaser before refusing to pay, and notwithstanding the vendor informed him he did not know the value of his interest, and that he was only selling his interest, whatever it might be, but the vendor will be left to his remedy at law.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.

      Messrs. Tenney, Flower & Cratty, for the appellant:
    Where there is a remedy at law, a bill for specific performance will not lie. Fry on Specific Per. secs. 12, 24, 29, 36, note 13; Story’s Eq. Jur. sec. 717.
    The contract must be free from fraud or unfairness of any kind. Taylor v. Merrill, 55 Ill. 52; Mitchell v. King, 77 id. 462; Modiset v. Johnson, 2 Black, 431; Mortlock v. Butler, 10 Ves. 292; 1 Story’s Eq. Jur. sec. 741; Race v. Weston, 86 Ill. 91.
    Even though free from intentional fraud, it will not be enforced unless founded on a good consideration, and be reasonable, fair and just. Lear v. Choteau, 23 Ill. 39; Allen v. Hart, 72 id. 104; Thomas v. Coultas, 76 id. 493; Proudfoot v. Wightman, 78 id. 553; Kerr on Fraud and Mistake, 332.
    A stronger case must be made out to enforce specific performance than for simple or ordinary relief. 1 Story’s Eq. Jur. sec. 769; Tyson v. Watts, 1 Md. Ch. Decis. 15; Race v. Weston, 86 Ill. 91.
    An application for specific performance is addressed to the sound legal discretion of the court, and a decree does not follow, as a matter of course, merely because a legal contract exists. Frisby v. Ballance, 4 Scam. 287; Lear v. Choteau, 23 Ill. 39; Stone v. Ballance, 25 id. 25; Gosse v. Jones, 73 id. 508; Race v. Weston, 86 id. 91; Tamm v. Lavable, 92 id. 263.
    Messrs. Dent & Black, for the appellee:
    If a judgment at law will not preserve to the plaintiff the benefit of his agreement, or can not accurately represent the value of the contract to the plaintiff, specific performance will be decreed. Fry on Specific Per. secs. 18, 37; Chamberlain v. Blue, 6 Blackf. 490.
    Covenants of indemnity may be specifically enforced where injury is apprehended but not yet sustained. 2 Story’s Eq. Jur. sec. 35, and note; Ranelaugh v. Hayes, 1 Vern. 189; Champion et al. v. Brown et al. 6 Johns. Ch. 398.

      Specific performance will be decreed where the lands lie outside of the jurisdiction of the court. Fry on Specific Per. sec. 63; 1 Story’s Eq. Jur. secs. 743, 744.
    Still another principle entitles the complainant to maintain this bill, and that is this: an agreement for a mortgage constitutes a specific lien upon the land embraced in the agreement. In re Howe, 1 Paige, 125; 1 Jones on Mortgages, 163.
    There is no fraud or unfairness in the contract. The mere sale of the accounts, in the absence of a warranty of their collectibility, amounts only to a warranty that the same are unpaid. Robinson v. McNeill, 51 Ill. 225.
    A party will not be relieved from a mistake attributable to his own want of due care. The fact must be such that he could not, with due diligence, have obtained accurate knowledge of it. 1 Story’s Eq. Jur. sec. 146.
    If a party, after the discovery of a fraud or mistake, continues to hold under the contract, and does not put the other party in statu, quo, he will be compelled to perform it. 2 Parsons on Contracts, 781; Chitty on Contracts, 814; Besley v. Dumas, 6 Bradw. 291.
    The defendant having put it out of his' power to rescind, should be required to perform his contract. There is here no such fraud or imposition, misrepresentation or mistake, as entitles him to any relief. Miller v. Craig, 36 Ill. 111; Noetling v. Wright, 72 id. 390; Kerr on Fraud and Mistake, sec. 82.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

There is a technical reason why the present decree must be reversed. The court directed the installments of the purchase money payable in one and two years .should be paid in one and two years after the first day of August next after the making of the contract, with interest at the rate of eight per cent per annum. That would seem to be evident error. The contract provides the deferred payments shall be made in one and two years “from this date,”—that is, the date of the contract, which the evidence shows was the 6th day of July, 1880. Should the contract be enforced at all, it must be done as the parties made it. It is apprehended the court has no rightful authority to enforce it otherwise. The cases in this court that declare this rule are numerous and consistent.

But the decision should be placed on grounds more nearly affecting the merits of the case. The bill is to enforce the specific performance of a written agreement between complainant and defendant, concerning a sale by the former to the latter of his interest in the firm of Frank Field & Co., a firm then and previously engaged in manufacturing crackers and confectioneries. As respects the terms of the agreement there can be no controversy, as it is signed by the respective parties. It obligated defendant to pay complainant $5000 for his interest in the firm of Frank Field & Co.,—$1000 of which sum was to be paid on or before the 1st day of August next after the making of the contract, $2000 in one year, and $2000 in two years, the latter payments to be evidenced by two promissory notes, bearing interest at the rate of eight per cent per annum, which said notes were to be secured by a mortgage on lands of defendant described in the bill. On the hearing, the circuit court decreed a specific performance of the contract, and that decree was affirmed by the Apj>ellate Court for the First District. The correctness of the decision of the latter court is called in question on this appeal of defendant.

The defence made is, that the contract is not fair,—that defendant was induced to enter into it under a misapprehension of the real facts, and that complainant contributed to that result by statements not entirely candid or accurate, upon which defendant confidently relied, and was thus overreached in the transaction. The rule is a familiar one that applications for the specific performance of a contract are within the sound legal discretion of the court hearing the cause. That discretion, of course, is a sound legal discretion, controlled always by the equitable circumstances of the case, and not by the mere caprice of the chancellor. This branch of the law is so familiar it is hardly necessary to restate principles so well understood. Before a court of equity will compel the specific performance of a contract, it must appear it was founded on a good and valuable consideration, and is reasonable, fair and just in all its parts. It is for the reason a court of chancery will not lend its aid to give a party the benefit of an unreasonable or unjust contract, the enforcement of which would work a serious hardship. If his contract is a legal one, and its specific performance, if compelled, would be oppressive, the party seeking a remedy must find it in the law courts, and not ask a court of chancery to assist him. This court has had frequent occasion to say, a court of equity is not bound to enforce every contract,' even though it he a legal one, and there might exist no sufficient reason for annulling it. Equity will withhold its aid if there be' anything that makes it unreasonable or inequitable the party should have performance of his agreement.

It appears defendant - performed the contract in part by making payment of most of the first installment agreed to be paid, and then ceased to do more. Shall he now be compelled to. go forward and complete his agreement ? To do so would undoubtedly subject defendant to very serious loss. On the principle just stated, equity will hesitate to compel the execution of a. contract the performance of which would be oppressive on the obligated party. Considering the whole evidence contained in the record, it is impossible to escape the conviction it would subject defendant to considerable loss to compel him to perform the contract under the circumstances. The assets of the firm were not near so valuable -as defendant supposed them to be. • The concern owed many more local bills than he had any reason to anticipate. It is said he should have examined the books to have ascertained more accurately the value of the firm assets. There are two answers to this suggestion: First, the books did not show to a casual observer the exact condition of the accounts due the firm, whether good or bad; and second, the books kept by the regular book-keeper did not show all the local bills owing by the firm. That class of bills only appeared on a private memorandum book kept by one member of the firm, who had charge of that branch of the business. This fact was known to complainant, and was not known to defendant at the time of the sale. When complainant referred defendant to the books for information, he did not advise him where the private memorandum book containing an account of the city bills owing by the firm could be found. Had defendant examined the hooks as any prudent man would have done,"it will be presumed he would have examined only such as were kept by the book-keeper of the firm. It could hardly be expected he would have inquired whether the several partners kept private memoranda of matters pertaining to the firm business. It is proved there were several thousand dollars of city bills owing by the firm that did not appear on the bookkeeper’s books. The amount was certainly sufficient to very materially affect the value of the firm assets. Of these city bills defendant did not seem to have had any knowledge when he executed the written agreement it is sought by this bill to enforce by a decree in chancery. Complainant had full knowledge, and he ought to have communicated to defendant that information. He must have known the amount of the. city bills very materially affected the value of his interest in the firm he was sealing to defendant. In this respect he does not stand so fair that he may invoke the aid of a court of equity.

It will be remembered that the contract was made on the 6th day of July, 1880, and it was some time in October before defendant refused to perform it, and offered to rescind the agreement. That, it is said, was too late; that he should have discovered sooner he had been overreached, and offered to rescind the contract. That may be, and doubtless is, true ; but defendant is not asking the aid of a court of equity to enable him to rescind the agreement. Nor is it a material inquiry now whether defendant could rescind the contract after the lapse of so great a period. A more serious question, and one with which the court has now to deal, is, whether complainant has shown a contract so fairly obtained, and so just, that he may invoke the aid of a court of chancery to compel a specific performance. In view of all .the circumstances in evidence it can hardly be said that he has. His contract with defendant may be a legal one, and defendant may be required to abide it or answer in damages. That question need not now he determined. Conceding that agreement is obligatory on both parties, under all the circumstances it seems most proper they should be referred to the law courts to adjust the difficulties between them. Whatever claim complainant may have against the defendant, arising out of the agreement, may be compensated by damages recoverable in an action at law. It is no answer to this view of the law to say that complainant may have told defendant, in the office of the lawyer who prepared the papers, he did not know what his interest in the firm was worth, and that he wanted it understood he was selling his interest, whatever it might be, for the sum named in the contract. He may have told him all this, and yet if he obtained an unfair contract from defendant by failing to disclose material facts affecting the value of the interest he was selling, equity will not decree the execution of the agreement in his favor. It will leave him to his remedy at law, whatever it may be.

The judgment of the Appellate Court will be reversed and the cause remanded.

Judgment reversed.


author: Mr. Justice Craig

text:
    Dan Parker v. Henry C. Merritt.

      Filed at Ottawa January 31, 1883.

    1. Partnership—right of retiring partner to lien on partnership assets for payment of firm, debts. If one partner, on a dissolution of the firm, sells his interest in the partnership stock of goods to his co-partner, relying alone upon the agreement of the latter to pay the firm indebtedness, the retiring partner will have no equitable lien on the goods for the payment of the partnership liabilities, that can be enforced in equity.
    2. But where, on the dissolution of a partnership, an amount of the stock of goods equal to the firm indebtedness is left with one who continues the business, to be converted into money, with which he is to pay the partnership indebtedness, he can not be held a purchaser, so as to subject the goods to the payment of his individual debts as against the equities of the retiring partner, but he is a trustee of such goods for the payment of the firm liabilities, and the trust may be enforced in equity by the retiring partner for the benefit of the partnership creditors, as'against subsequent purchasers or execution creditors with notice of the equities of the retiring partner.
    3. Same—articles of dissolution construed, as whether passing title to goods to partner continuing the business. On the dissolution of a partnership, the articles of dissolution provided that an invoice of the goods, etc., and a schedule of the firm debts, should be made, and that the surplus of the assets above the indebtedness should be divided, and that one partner should retain a sufficient amount of the goods, etc., from which he agreed to pay such debts within a given time, and as rapidly as such assets could be realized for that purpose. The partner so retaining the goods continued the business, and a creditor of such partner, having notice of the facts, levied his execution upon the goods. It was held, that the retiring partner could maintain a bill in equity to enjoin the sale on the execution, and have the proceeds of the goods applied in payment of the firm debts, and that the interest of the retiring partner did not pass to his co-partner by the articles, there being no sale thereof.
    á. Notice—what is, and when inferred. Where a party has notice of facts sufficient to put a prudent man on inquiry, he is chargeable with notice of such facts as might have been ascertained from a prudent investigation. Notice of the character in which a remaining partner holds goods of a firm after dissolution, and retirement of the other partner, may be inferred from the intimate relations existing between such partner continuing the business and his father, they both residing in the same town, and the father being often in his son’s store, and familiar with his business.

      Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Henry county; the Hon. John J. Glenn, Judge, presiding.
    Messrs. Lanphere & Brown, and Mr. Charles K. Ladd, for the appellant:
    Under the agreement between the partners, the creditors of the firm could sue Parker alone for the firm debts without making Merritt a party, and levy on the goods in controversy to satisfy the judgment against Parker alone. Snell v. Ives et al. 85 Ill. 279; Eddy v. Roberts, 17 id. 505; Brown v. Strait et al. 19 id. 88.
    The firm being solvent, the partners could divide the assets as they saw fit, and if one retained the assets, and agreed to pay the firm debts, that did not give the other a lien on the assets. Story on Partnership, secs. 329, 358, 359.
    Where possession is given to one partner, who is allowed to act as sole trader, he will have all the credit as such, and all persons dealing wilh him may treat the property as his. Ex parte Williams, 11 Ves. 3.
    The contract of Parker to pay the firm debts took the place of the lien Merritt had on the firm goods, and Parker took them free from the lien to pay the firm debts. Story on Partnership, sec. 359; Ex parte Ruffin, 6 Ves. 119; Ex parte Williams, 11 id. 3.
    The law does not give -to firm creditors any equities over the individual creditors for payment from the partnership assets. Hapgood et al. v. Cornwell et al. 48 Ill. 64.
    To charge a stranger to a trust fund, it must be shown that he had notice of its character, and its misapplication. Fifth National Bank v. Hyde Park, 101 Ill. 595; Ladd v. Griswold, 4 Gilm. 25.
    Mr. C. C. Wilson, for the appellee:
    Whether the creditors of the firm could sue Parker alone, depends upon whether there was an absolute sale of the goods to him, or whether he was a trustee for the creditors. If these goods were set apart to pay debts of the firm, then Merritt, or any of the creditors interested in having the debts paid, might ask the aid of a court of equity to prevent the misapplication of the trust fund. Ward v. Lews, 4 Pick. 518; First Congregational Church v. Trustees, 23 id. 148; Fitch v. Walkman, 9 Metc. 517.
    If Dan Parker had notice of the trust, or even had the means of knowing of the trust, and took the goods in payment of an individual debt of the trustee, then any person having an interest in the goods might follow them in his hands. Cott v. Lossner, 9 Cow. 320.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by Henry C. Merritt, against appellant, to reach certain goods in his possession, and have the proceeds applied in payment of the firm debts of Parker & Merritt.

It appears from the record that Parker & Merritt were engaged in business as partners in a general store, from February 1, 1874, until September 10, 1878, when the firm was dissolved by mutual consent. The controversy in the case mainly grew out of the construction to be placed upon the contract of dissolution executed by the parties at the time the firm was dissolved. The contract provides: “First, a full and complete invoice at cost, and last invoice price of the stock, goods, fixtures and assets of said firm, shall be taken, as soon as the same can reasonably be done without' injury to the trade and business of said firm; second, a schedule of the debts and liabilities of said firm shall be made; third, the amount of said firm indebtedness shall be deducted from the amount of said inventory or invoice, and the balance of said invoice and assets shall be divided as follows, viz: ” Then follows a detailed statement of the manner in which the assets shall be' divided between the partners. Then comes the fourth clause in the agreement, which declares: “The accounts due said firm, and not disposed of as aforesaid, and the goods to an amount sufficient to meet the liabilities of said firm as aforesaid, shall be retained by said Parker, and in consideration thereof the said Parker agrees to pay the debts of said firm as aforesaid. ” The last part of the agreement contains the following: “It is also agreed that the schedule indebtedness of said firm, except the amount due the People’s Bank, shall be paid within six m'onths of the final decision herein named, and as rapidly as the assets herein set apart for their payment can be realized upon; and the indebtedness owing to the People’s Bank shall be paid within one year. ”

Under the contract an inventory was made, which showed the resources of the firm to be $29,513.49, as follows:

Left in Parker’s hands to pay the amount of firm’s debts, in goods, - the - $16,724.77
Parker drew out to pay note to Merritt, - 1,500.00
“ took poor notes and accounts, - - 1,507.60
In merchandise, - - - - - 3,602.57
Merritt drew out m poor notes and accounts, - 1,507.60
In merchandise and fixtures, ... 4,670.95
Total, $29,513.49

After this settlement between the partners, Henry Parker continued the business in his own name, in the same building which had been occupied by the firm. The goods, amounting to $16,724.77,- which were left with Parker to pay the debts, were mingled with other goods purchased, and the retail trade carried on until June 16, 1879, when Dan Parker, appellant, levied upon the goods m the store, on an execution in his favor, against Henry Parker, and on the same day, but after the levy, Henry Parker made an assignment, under the statute, to Howlett, for the benefit of creditors.

The question arising on the facts is, whether that portion of the goods which remained unsold, and which had been left in Parker’s hands for the payment of the firm debts, is liable to the execution, or ■ has complainant, the retiring partner, (the partnership debts not having been paid,) the superior right to the goods, or the money arising from a sale thereof, to be used by him as a fund to pay the partnership debts. If Merritt, when the firm was dissolved, had sold his interest in the stock of goods to Henry Parker, and relied alone upon his agreement to pay the indebtedness of the firm, we regard it a plain proposition that he would have no equitable lien on the goods for the payment of the partnership liabilities, which could be enforced in a court of equity. But can this transaction be held to be a sale ? The contract of dissolution does not read or declare that Merritt has sold his interest in the goods to Parker, nor can a sale be fairly inferred from the language used by the contracting parties. The fourth clause in the contract of dissolution, which is the only one that can be relied upon to establish a sale, only provides that Parker may retain goods and accounts amounting to $16,724.77, and in consideration of retaining that amount of the firm assets he agrees to pay the debts of the firm. The language employed merely places so much property of the firm in the hands of Parker, to be by him used for a specified purpose. He is, indeed, but a trustee, entrusted with property to be used for a certain specified purpose. This view of the transaction is strengthened when the above clause of the contract is read and considered in connection with the last clause of the agreement, which declares that the schedule of indebtedness of the firm shall be paid within six months, ancl as rapidly as the assets herein set apart for their payment can he realized upon. This language repels the presumption of a sale, and when read in connection with the fourth clause of the agreement, which, of course, is the proper manner to arrive at the true meaning of the contracting parties, would seem to leave no just ground for holding that a sale had been made, but, on the other hand, from ■ the language employed in the contract, it seems evident that the property belonging to the firm, and not divided, was set apart and left in the hands of Parker, to be used in the payment of partnership liabilities.

If we are correct in this view, was the property set apart to pay the firm debts, and found in the possession of Parker, liable to be taken and sold on an execution for his individual indebtedness, or did the retiring partner retain an equitable lien upon it, under which he has the right to insist upon its application to discharge the liabilities of the firm ? Suppose, upon a dissolution of the firm, Merritt had merely retired, leaving all the goods in the hands of Parker, who was proceeding with the business as a sole trader, would an execution against Parker on an individual debt become a prior lien as against the lien of Merritt ? We think n8t. The doctrine on this subject is clearly stated in Story on Partnership, sec. 400, in the following words: “In general it may be stated, that the mere fact that the partnership property, after the dissolution of the partnership, remains in the possession of one partner, who afterwards becomes bankrupt, will not be sufficient, of itself, to make him, in the sense of the statute, the reputed owner thereof, for this is certainly in consonance with the rights of all the partners, as all and each of them are equally entitled to the possession and custody thereof. The case must go further, and establish that the other partners have, by their own acts,, or contracts, or conduct, conferred upon him the exclusive right, and order, and disposition thereof, beyond the purposes belonging to the partnership. ” The goods in question were not left in the possession of Parker to be appropriated to his own use, or to be used in payment of bis individual debts, but were left with him for a definite and specific purpose,—to be used for the payment of partnership debts,—and hence the case would seem to fall within the rule laid down by Story.

We have, in the argument, been referred to Ex parte Williams, 11 Ves. 3. Upon an examination of that case it will be found, that upon the dissolution of the firm the retiring partner made an absolute sale of the partnership goods to the one who afterwards continued the business, and this was the point upon which the ease turned. It is there said: “The question then is, whether the contract for dissolution has left these equities attaching upon the possession. If it is competent for partners to say these, equities shall no longer exist, inquiry is necessary to ascertain whether, by the bargain for the dissolution, that which was the property of all has become the property of one. In Ex parte Ruffin there could be no doubt upon that, a legal instrument being produced, the legal effect of which was such as I have stated. * * Upon the facts of this case * * * there is distinct evidence of an agreement that the joint effects shall be considered separate effects; and that fact calls upon me to declare the conclusion of law that these are separate effects. ” What has been said in the case cited might be said here,— had Merritt made an absolute sale, his equitable lien doubtless would have been lost. But such was not the ease.

Wilds v. Chapman, 4 Edw. Ch. 669, is a case in point. Property having been assigned by one partner to the other, in trust, to pay the partnership debts, it was held that this trust might be enforced for the benefit of the partnership creditors. This court, in Hapgood v. Cornwell, 48 Ill. 64, in referring to the case cited, approved the doctrine announced, but add, that the trust could only be enforced against persons taking the property with notice of the trust. It may be true, if the goods in question had been sold by Parker, in the regular course of business, to some person who had.no notice whatever of the manner or character in which he held the goods, such person would be entitled to be protected as an innocent purchaser. But does appellant, who levied upon the property with an execution, occupy that position?

It appears from the record that appellant was the father of Henry Parker,—that the two resided in the same town, and a part of the time in the same house. Appellant knew that Merritt and Parker had dissolved. He was often in the store of the son, and was familiar with his business. He knew that his son was embarrassed, and loaned him money from time to time, and while appellant testified that he had no knowledge that his son retained a portion of the goods belonging to the firm, to be used in the payment of debts, still the majority of the court are of opinion, in view of the intimacy and business relations existing between appellant and his son, that he was in possession of sufficient facts to put him upon inquiry, and hence he is chargeable with notice, as it is a well established rule that where a party has notice of facts sufficient to put a prudent person on inquiry, he is chargeable with notice of such facts as would have been ascertained from a prudent investigation. The relations existing between appellant and his son were such that he could, without trouble, had he inquired, learned precisely the manner in which the goods were held, and the information he possessed made it his duty to make inquiry.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Walker

text:
    Amaziah D. Davis v. Lucy Kennedy et al.

      Filed at Mt. Vernon January 31, 1883.

    1. Consideration—for deed by father to his daughter. Where a father, while not indebted, made a voluntary deed to his daughter of a tract of land, for natural love and affection, and the daughter afterward consented to his selling and conveying the same in consideration of his agreement to convey her another tract, or to pay her for the land so sold, and he afterwards, while he may have been indebted, attempted to convey to her the other tract, but by a mistake in drafting the deed the land was described as in a different township from the true one, it was held, as against a purchaser from the assignee in bankruptcy of the father, of that tract, that the second deed to the daughter was founded upon a valuable consideration, and might be reformed in equity as against the purchaser, he having notice of her equities before his purchase.
    2. Ebaudueent conveyance—fraud must be shown. Where a deed is alleged to be fraudulent as to creditors of the grantor, fraud must be proved. A voluntary deed made by a father to his daughter, at a time when no indebtedness is shown against him, and when, for aught appearing, he was perfectly solvent, is good and valid, and a second conveyance made by him to her for another tract in case of her relinquishing her right and estate in the land first conveyed, and allowing the father to sell the same and receive the proceeds, being founded upon a valuable consideration, is not fraudulent as to creditors of the father having claims against him when the same is made.
    3. Eobmeb adjtjdicaton—when no bar. Where land is sold and conveyed by deed, which, by mistake, misdescribes the land, and it is sold by the grantor’s assignee in bankruptcy, the refusal of a motion in the District Court of the United States to set aside the assignee’s sale and deed for the reason the bankrupt had no title to the land sold, is no bar to a bill in equity by the grantee in the first deed to have his deed reformed and the mistake therein corrected, and to enjoin the execution of a judgment in ejectment recovered by the purchaser at the assignee’s sale, the questions involved in the motion and the bill not being the same.
    Writ oe Error to the Circuit Court of Massac county; the Hon. David J. Baker, Judge, presiding.
    Messrs. Green & Gilbert, for the plaintiff in error:
    Where facts like those in this case appear in evidence, a presumption of fraud is established, and it devolves upon the purchaser to prove that he has paid the purchase money for the land. Kiser v. Houston, 38 Ill. 252; Draper v. Draper, 68 id. 17; Brown v. Welsh, 18 id. 343; 1 Story’s Eq. Jur. secs. 349-351, 425.
    A voluntary executory agreement will not be enforced in equity. Bunn v. Wenthrop, 1 Johns. Ch. 329.
    In this case, the consideration of the second deed was a precedent debt of the grantor, which is not sufficient as against creditors. Metropolitan Bank v. Godfrey et al. 23 Ill. 579.

      The continuing of possession of land by the grantor, and receiving the rents and profits for several years after a conveyance to his daughters, is a badge of fraud. 1 Smith’s Leading Cases, 50; Hildreth v. Sands, 2 Johns. Ch. 46; Story v. Arden, 1 id. 266.
    Of the kind and sufficiency of the evidence to justify the reformation of a deed for a mistake : Shelburne v. Inchiquin, 1 Bro. Ch. 347; Lyman et al. v. United States Ins. Co. 2 Johns. Ch. 30; Shay v. Pettes, 35 Ill. 360; Cleary v. Babcock, 41 id. 271; Hunter v. Bilyeu, 30 id. 228; Minor v. Hess, 47 id. 170; Sowerby v. Arden, 1 Johns. Ch. 240.
    A mistake on one side only may be grounds for rescinding, but not for correcting, an agreement. Sutherland v. Sutherland, 69 Ill. 481; Wilson v. Byars, 77 id. 66.
    Mr. J. C. Courtney, for the defendants in error:
    The burden of proof rests upon him who alleges a deed to be fraudulent as to creditors. Hatch v. Jordan, 74 Ill. 414; Shinn v. Shinn, 91 id. 477.
    The rule is well settled that creditors can not complain, even though they may have been hindered in the collection of their demands. Hessing v. McCloskey, 37 Ill. 352; Miller v. Kirby, 74 id. 242.
    The mere fact of indebtedness at the time of the execution of a voluntary conveyance by a father to a child will not render it fraudulent, where he is not insolvent, or the facts are not such as to justify a presumption of insolvency. Merrell et al. v. Johnson et al. 96 Ill. 224; Moritz v. Hoffman, 35 id. 553; Patrick v. Patrick, 77 id. 556; Tunison v. Chamblin, 88 id. 378; Carr v. Breese, 81 N. Y. 584.
    If it is true, as contended by counsel for plaintiff in error, that Kennedy was in the actual and notorious possession of this land as his homestead, being the head of a family, he had the right to give it to his daughters free from the claims of his creditors, as the land was not subject to the payment of his debts. Hartwell v. McDonald, 69 Ill. 293; Miller v. Kirby, 74 id. 242; Delashment v. Trau, 44 Iowa, 613.
    A purchaser informed of an equity depending on a fact in pais, can not fall back on the records, and in that way relieve himself from inquiry. Baker v. Bliss, 39 N. Y. 79; Blatchly v. Osborn, 33 Conn. 266; Randall v. Silverthorn, 4 Barr, 473.
    Where a person has been, before purchasing, informed of the equities of a third person, he should make inquiry of such person, and if he does not, he is chargeable with notice. Dart on Vendors, ch. 111, sec. 1, p. 88; Ehley v. Witherow, 7 Watts, 164; Nute v. Nute, 41 N. H. 160; Bunting v. Ricks, 2 Dev. & Bat. Ch. 130; Russell v. Petrie, 10 B. Mon. 186.
    As to what is res judicata, see Love v. Truman, 10 Ohio St. 45; Vallandingham v. Ryan, 17 Ill. 25; Miller v. McManus, 57 id. 126; Smalley v. Eddy, 19 id. 207; Campbell v. Butts, 3 Conn. 173; Foster v. The Richard Busteed, 100 Mass. 409; Perry v. Lewis, 49 Mich. 443.
   Mr. Justice Walker

delivered the opinion of the Court:

This was a bill in equity, filed by defendants in error, to enjoin the further prosecution of an ejectment suit by plaintiff in error, and to reform and correct a mistake in a deed of conveyance for the eighty-acre tract in controversy.

It appears that in the year 1865, John R. Kennedy gave and conveyed to his three daughters a forty-acre tract of land, but the deed was never recorded. Some time afterward, one Fulmer wished to purchase this forty-acre tract, with some other lands, when it was agreed between the father and daughters that he should sell the lands and convey to them other lands, or pay them the worth of their land in money. The sale was made. In the month of October, 1866, he executed a deed to them for an eighty acres of land, but it was described as the land in controversy, except as being in a different township, and it is claimed that by mistake the scrivener inserted the wrong township, when the intention was to convey the land in controversy. In the month of July, 1868, Tost was appointed assignee in bankruptcy of Kennedy, on a petition he had previously filed for the purpose of being declared a bankrupt. On the 15th day of November, 1868, Tost, the assignee, sold this land, and plaintiff in error became the purchaser and received a deed, and subsequently brought ejectment, and recovered a judgment for the land, and this bill was filed to enjoin further proceedings in that case, and to correct the alleged mistake in the deed. On a hearing, the court below granted the relief sought, and Davis brings the case to this court and seeks a reversal of the decree.

It is urged for a reversal that the conveyance from Kennedy to his daughters was voluntary, and for the purpose of defrauding creditors; that the evidence is insufficient to establish a mistake in the deed from Kennedy to his daughters, and' that Davis had no notice of the mistake when he purchased. These are the main grounds relied on for a reversal.

That the first deed for the forty-acre tract was voluntary, can not be controverted, but, being made for natural love and affection, and for a small pecuniary consideration, it was effectual to pass the title to the grantees, and they thereby became fully invested with the title. The property and title to it were in them. When, therefore, they consented to its being sold by their father, and he to receive the consideration, and they to take money or other real estate in exchange, that formed a consideration for the conveyance of the eighty-acre tract in controversy. If, then, there was an effort to convey the land by Kennedy to his daughters, and the effort was defeated by mistake, there was an ample consideration to "support the transaction, and defendants in error- have the right to have the mistake corrected if established by the evidence, and other and superior equities have not intervened to preclude the correction and reformation of the deed. It is contended on one side that the evidence is ample, but this is denied on the other. On a careful examination we regard the evidence of the mistake as sufficient,—as full as the case could admit of,—and if not conclusive, certainly strong and convincing.

The evidence that plaintiff in error had notice that defendants in error claimed the title, is clear and satisfactory. He was notified by the father, and he proposed to the father that the daughters execute him a mortgage on the land, to secure what their father owed him, and. he would give long time for its payment. He was told by others that defendants in error claimed to own the land. This was before the sale, and when it was progressing bidders were notified that whoever became the purchaser would buy a law suit, and Armstrong said at the sale that he would file a bill to correct the mistake in the deed, as testified to by McCartney, and that Armstrong spoke loud enough to have been heard by plaintiff in error. He admits that he had heard rumors that defendants in error owned the land, but claims to be protected because he searched the records and found no conveyance to them for this land, and denies that he heard the statement proved to have been made at the sale. Yost swears that he heard the statement made that the purchaser would get no title, and, all the evidence considered, we think it largely preponderates to establish notice, not only that defendants in error claimed the title, but there was a mistake, and a suit would be brought to correct the mistake. Armstrong so stated in the presence and hearing of defendants in error, and others heard the statement who were not so near Armstrong as Davis, and he must have heard it. This, then, was notice of the secret equity of defendants in error, and plaintiff in error must be charged by it. This case, in many of its features, is like the ease of Hankinson v. Barbour, 29 Ill. 80. It is almost precisely the same as to the number of witnesses, and their testimony on the question of notice. Here, as there, we must give. credence to the evidence of the witnesses of defendants in error, rather than the testimony of plaintiff in error.

It is however urged, that Kennedy was guilty of a fraud on his creditors in conveying this property to his daughters. When fraud is alleged it must he proved, and in this case plaintiff in error has failed to establish the fraud. The first of these conveyances, and the land therein conveyed, was the consideration given for the conveyance attempted to be made in this case. It was some three years before Kennedy’s bankruptcy. Nor was the claim of plaintiff in error then in existence, nor does it appear that any.debts.he owed when he was declared a bankrupt, existed at the time the first conveyance was made. He, so "far as this record shows, was then entirely solvent, and if so, he had the legal right to convey this property to his daughters. If he was then solvent, no one had the right to question the transaction. If he was solvent, his daughters took by that conveyance free from all claims that subsequently accrued against their father. Nor was it a fraud for them to exchange that land with their father for this, although he might have owed debts when this latter deed was executed. Others could have purchased this land from the father on a sufficient consideration paid, and the daughters unquestionably had the same right, and they exercised it, and the law will protect them in their purchase.

It is likewise urged that the question is res judicata, and the decree is therefore erroneous. We ■ fail to perceive that the motion to set aside the sale in the District Court of the United States, on the ground .that Kennedy was not, but defendants in error were, the owners of the land, should be given that effect. The proceeding was not to reform the deed or to enjoin defendants in error from asserting title to the land. That question was not involved, but it, whatever its form, was a motion to set aside the sale. The court, no doubt, found there was a disputed title, and propei'ly left the purchaser and defendants in error to settle it by appropriate litigation in the proper courts. The title stood of record in the name of the bankrupt, and that being the case, it was proper that it be sold, and it was not an appropriate proceeding to reform the deed or to settle the title, hence the court did neither, but simply dismissed the motion. That proceeding falls far short of an adjudication of the question being litigated in this case. There is, therefore, no just claim that the questions here litigated were there determined. There, the object and direct purpose was to have the sale disapproved and set aside. Here, the purpose is to have this deed reformed, and the mistake corrected, and the assertion of title under the assignee’s deed be enjoined. So it fails of an estoppel, because the questions decided, and necessary to be decided, are not the same. That court, on that petition and motion, could not have declared that defendants in error were not entitled to the relief they seek in this case, because no such question was presented or before that court. We are not warranted in presuming that court did what it was not authorized to do, on the record as it then stood, nor was it asked, nor do we suppose it intended so to do. We must therefore hold that this proceeding is not barred by a former adjudication of the same questions now litigated.

These are the only questions we deem it necessary to com sider in this case, and perceiving no error in the record the decree of the court below is affirmed.

Decree affirmed.


author: Mr. Justice Scholfield

text:
    The City of East St. Louis v. Elizabeth H. Underwood, Ex’x.

      Filed at Mt. Vernon January 31, 1883.

    1. Judgment—in mandamus—whether authorized wider the prayer. Where the prayer in a petition for a mandamus is, in the alternative, that the defendant, a city, cause a levy of a tax to be made for the payment of a judgment against it, if the money on hand shall be insufficient to discharge the same, a judgment will be authorized directing payment out of a levy made after suit brought, and before the hearing, to the extent authorized by the charter, treating the due proportion of the amount levied as levied for the benefit of creditors of the city, to be so applied when the levy shall be collected.
    2. Practice—when objection should be made in the court below. An objection that a judgment awarding a peremptory writ of mandamus is variant from the prayer of the petition, should be first urged in the trial court, so that it may be obviated by amendment of the petition.
    3. Municipal indebtedness—of the levy of taxes—rights of creditors. Where a city is, by its charter, limited^o the levy of one per cent of taxes for all purposes whatever, and the charter provides that three-tenths of that per cent shall be for the payment of its bonded indebtedness, and the city does levy a one per cent tax, the court, on the application of a creditor having recovered judgment on bonds of the city, will compel the city authorities to apply three-tenths of such taxes to the payment of such judgment, if that much is necessary. In such case the creditors are entitled to have this levy annually made, so long as necessary, to discharge their debts, and the city can not lawfully devote more than seven-tenths of that levy for any fiscal year to current expenses.

      i. Merger of debt in a judgment—effect on original character of the debt. Where a city charter requires a certain per cent of taxes levied and collected to be devoted to the payment of its bonds and coupons as a class of indebtedness, the recovery of a judgment against the city on such bonds will not merge the indebtedness in the judgment, so that it will lose its proper classification. The origin of the debt will fix its classification, which will remain, however numerous the mutations the form of the debt may undergo.
    Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.

      This was a proceeding by mandamus, in the circuit court of St. Clair county, to enforce payment of a judgment recovered by the appellee, as executrix of William H. Underwood, upon bonds and coupons of the city of East St. Louis.
    It was alleged in the petition, that at the time the demand was made, and. at the time the suit was commenced, there was sufficient money in the treasury of the city collected for the specific purpose of paying interest on its bonds, and to create a sinking fund to pay the principal when due, under section 22, article 7, of the charter of the city. (Priv. Laws, 1869, vol. 1, p. 904.) The suit was commenced on November 29, 1879, but was not heard until December 18, 1880. The prayer of the petition was, that a peremptory writ of mandamus be awarded against the city, commanding it, by its city council, to forthwith pay and cause to be paid, out of the funds on hand when the suit was brought, the judgment, interest and costs, and to levy and cause to be levied, and collected, in case there was any deficiency in said funds to pay said judgment, the tax required to be levied by section 22, article 7, of the charter, sufficient to pay such judgment in full.
    It was also set up in the petition, that the city council had made no levy for the purpose of paying its bonds, and interest thereon, for the 'fiscal year commencing March 15, 1879. The court found that no such levy was made for the year 1879-80, and that a few days before the hearing the city levied one per cent tax for the year 1880-81, the extent of its power to levy taxes, and appropriated the whole to its ordinary expenses. Upon this the court ordered that three-tenths of this levy, as collected, should be applied to the payment of plaintiff’s judgment.
    Messrs. G. & G. A. Koerner, for the appellant:
    The judgment in this case can not be sustained upon any legal principles. The answer shows the extent of the power of taxation and resources of the city, and that for the years in controversy, after all its revenues were collected, there Avould not be sufficient money in the treasury to meet the necessary current expenses of the city. There was no controversy as to Avhat the tax levy of 1880 was, and for what it was required, and there could be none, because the issues were made up before such levy was made. Yet the court finds, on a question not before it, that such levy amounted to $26,977.71.
    After it was admitted that the tax levy of the year previous Avas not sufficient to allow any of it to be diverted from the necessary current expenses of the city, three-tenths of the entire revenue of this year is, by the judgment, to' be appropriated to the payment of this one creditor. This seems absurd, particularly in connection with the finding that there is no money in the treasury to pay the judgment. This entire finding on matters not presented by the issue is entirely irrelevant. It is not indicated by the judgment which fund is to be drawn upon, and as they are all about exhausted, it Avould be impossible to appropriate from them sufficient to pay this judgment.
    Mr. R. A. Halbert, for the appellee:
    The power of the city council to levy taxes generally, is found in Private Laws of 1869, vol. 1, art. 3, sec. 1, p. 887, and the duty to levy a specific tax to pay its bonded indebtedness, in same volume, art. 7, sec. 22, p. 904.
    It Avas the duty of the city to exercise the power, under section 22, for the payment of the judgment. (High on Ex. Bern. sec. 393.) The city has no power to appropriate the whole of the one per cent while this judgment remains unpaid, but only seven mills thereof. (Weber v. Traubel, 95 Ill. 431.) Nor could the city, after suit commenced, defeat appellee’s remedy by any shift or device, such as paying out the money, or levying unlawfully the specific tax for a different purpose. High on Ex. Rem. sec. 15.

      As the city had wrongfully appropriated after demand, and commencement of the suit, the money already collected, to pay its bonds, and interest, an order to pay the judgment instantly would have been proper; yet the order to pay that part of the levy just made, when collected, which the city intended illegally to appropriate to other purposes, was proper, and to this no objection was made. As to the power of the court to make such an order, see People ex rel. v. Cairo, 50 Ill. 168.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This is an appeal from the judgment of the Appellate Court for the Fourth District, affirming a judgment of the circuit court of St. Clair county, whereby a peremptory mandamus was awarded in favor of appellee, and against appellant, for the payment of a certain judgment.

No objection was taken or exception saved to any ruling of the circuit court, and the judgment of the Appellate Court is conclusive as to all questions of controverted fact. There can, therefore, only remain to be inquired into, the question whether, under any evidence that would have been admissible under the pleadings, the judgment can be sustained. Bridge Co. v. Comrs. of Highways, 101 Ill. 518; Fitch v. Johnson, 104 id. 112; Edgerton v. Weaver, ante, p. 43.

The objection that there is a variance between the prayer of the petition and the judgment, is untenable. The alternative prayer is, that a levy be made, etc., if the money on hand shall be insufficient, etc. A subsequent levy, equal in amount to the limitation in the city charter of one per centum, being made, it is clearly within the spirit of the alternative prayer to treat, as the judgment does, three-tenths of that amount as levied for the benefit of the class to which the debt of the relatrix belonged, and direct the payment of her judgment out of the sum thus levied, when it shall be collected. Besides, in our opinion, an objection of this character should have been urged first in the circuit court, where, under our statute, it would have been admissible to have allowed an amendment of the petition, so as to have made it conform to the judgment. This could have worked no surprise and produced no injury, for the objection, at most, is purely technical, and does not go the merits of the controversy.

We held in Weber v. Traubel et al. 95 Ill. 427, that appellant, under the first section of article 3 of its charter, was limited, in levying taxes for all city purposes, to one per. centum per annum upon the assessed value of the property - within the city, and that the three mills to be levied and collected for the payment of the indebtedness, as provided by section 22 of article 7 of its charter, is included in that limitation ; and so 'it must follow, where there is a levy of one per centum, and there is also indebtedness of the class contemplated in section 22, article 7, it is strictly in conformity with these sections to direct that three-tenths of that amount be devoted to that indebtedness, if so much shall be required. The creditors are lawfully entitled to have this levy annually made, and so long as it shall be necessary to make it, there is no authority to devote more than seven-tenths of the levy of one per centum for any fiscal year to current expenses. Such expenses must be kept within that amount, or the creditors thereby made be compelled to take their chances of being paid in the future.

An objection was urged that the indebtedness of the relatrix was merged in her judgment, and that, although thé original indebtedness is of the description to be provided for by section 22, supra, being merged in the judgment, it stands now just as any other indebtedness, This is untenable/" While it is true that the debt, technically, is merged in the judgment, this does not affect its classification,—and it is •that to which section 22 has reference. The origin of the debt fixes its classification, and this, most obviously, remains the -same, however numerous the mutations the form of the debt may undergo. As held in People ex rel. v. Clark County, 50 Ill. 213, before the relatrix could have a mandamus to compel the payment of her indebtedness, it was essential that she should obtain a judgment upon it at law. It would be as iniquitous as absurd, that she should be compelled to lose all security and all remedy for the collection of her debt in consequence of attempting to enforce its collection in the only mode provided by law.

The finding of facts by the circuit court, although, in our opinion, perfectly consistent with the judgment rendered, not being required by law, presents no question demanding our consideration. Nor is it necessary to discuss any defence specially set up in the answer, since no question of law was raised thereupon in the circuit court, and where the answer contradicts the allegations of the petition we are to assume the evidence sustains the latter.

No error has been pointed out, and we have been unable to discover any, requiring a reversal of the judgment below. It is, therefore, affirmed.

Judgment affirmed.