author: Mr. Justice Sheldon Mr. Justice Mulkey,

text:
    Wallace R. Condict v. James M. Flower et al.

      Filed at Ottawa November 20, 1882

      Rehearing denied March Term, 1883.

    1. Alteration—not fraudulent, does not destroy contract as evidence. The alteration of a written agreement, after its execution, by a stranger to the creditors secured thereby, and with no fraudulent purpose or intent as against creditors, will not render the agreement inadmissible in evidence in favor of one of such creditors.
    2. Trustee—cestui que trust bound by his appointment by acquiescence. A debtor made a written proposition to certain of his creditors, offering to convey real estate, subject to incumbrances thereon, to any person selected by them as a trustee to manage the property and remove prior incumbrances, which was accepted by such creditors, and one of the creditors was selected by all the others, except one, to act as trustee, and the debtor, in a few days after, conveyed to the trustee for all the creditors accepting, who thenceforward managed su'ch property and advanced moneys to remove incumbrances, without any dissent or objection by the creditor who did not originally concur in the selection of the trustee: Held, that the creditor not a party to the selection of the trustee should be bound by his tacit acquiescence in the acting of the one as trustee, and should not be heard to deny his being selected as such.
    3. Contract—when binding on parties accepting proposition made to them and another. Where a debtor offers, in writing, to seven of his creditors, to convey his property, subject to certain conditions, to such person as they may select as trustee, for the purpose of securing their demands, and six of such creditors accept the proposition, and the debtor, waiving 'the nonacceptance as to the other, conveys the property to the trustee selected, who takes charge of and manages the trust property for the creditors accepting, the written proposition so accepted will be a binding contract on the creditors accepting the same.
    4. Same—parties bou/nd by agreement under which conveyance is made in part fulfillment. Where an agreement, in writing, is made between a debtor and certain of his creditors, whereby the debtor is to convey his property, subject to existing incumbrances, to a trustee selected by them, which incumbrances the creditors agree to discharge by assuming such indebtedness in proportion to their several demands, and such conveyance is accordingly made by the debtor to the trustee, this will not merge the written agreement, but the agreement and the conveyance will stand together, and the creditors will be personally liable for any deficiency of the advances made by the trustee which the proceeds of the property fail to satisfy in removing the incumbrances on the trust property.
    5. Same—right to contribution where one creditor advances in excess of his share. And where the trustee was president of a bank, one of the principal creditors, and in making the advances to relieve the trust property of incumbrances used the money of the bank, giving his notes therefor, as trustee, it was held, that the bank, in fact having made such advances, and in excess of its share, was in equity entitled to a personal decree against the other creditors, in its own name, for a contribution in respect to such advances, to make the common security available for all.
    6. Same—construed as to assumption of another person’s debt. A debtor in failing circumstances proposed to certain creditors, in writing, to convey to a trustee, for their benefit, certain real estate, subject to all liens and incumbrances then standing of record against the same, and concluded, “and I to be kept harmless from any personal liability for or on account of any suits or liens against said property about to be conveyed,” which offer was accepted, and a conveyance accordingly made: Held, that the provision of indemnity against personal liability was not on account of 'debts incurred in respect of the property, but was against personal liability on account of any suits or liens against the property, and did not render the creditors liable for a debt of the grantor in respect to a building on the property, when the mechanic’s lien had been lost or cut off. ■
    7. Interest—on sums advanced by trustee to remove incumbrances. Where a trust deed conveying property to a trustee in trust for certain creditors, allows the trustee ten per cent interest upon payments made from the proceeds of the trust property to discharge prior incumbrances, that rate may be retained on all advances made which are reimbursed by the jn'oceeds of the property, but not on any excess of such advances in which a personal liability is sought to be enforced against the creditors named in the trust deed. As to that, only six per cent is recoverable. But if the trustee purchases any of the trust property, at a sale of the same under a prior trust deed, which was bearing ten per cent interest, and this is necessary to protect the title, the same rate may -be allowed him by way of subrogation to the rights of the prior creditor whose debt is discharged by the sale.
    8. Contribution—not defeated because property securing the parties •might have, at one time, sold for enough to discharge all advances. Where a trustee holding property in trust for six creditors, who were all liable for such advances as might be necessary to remove prior incumbrances, fails to . sell the trust property at the request of two of such creditors at a sum sufficient to cover all advances then made by him, other creditors being opposed to such sale, there being no abuse of his discretion in the matter, this will not have the effect of releasing such two creditors from contribution for the advances made to remove incumbrances and protect the property.

      9. Mechanic’s lien—when defeated by sale under prior incumbrance. Under the Mechanic’s Uien law, a prior incumbrance on the premises has preference as to the land, and the lienholder as to the improvements; and if the improvements are destroyed by fire, the lien of the mechanic has nothing on which to attach except, the equity of redemption, and the subsequent sale of the premises under a prior deed of trust will have the effect to cut off such lien entirely.
    10. Purchaser—taking subject to incumbrance, imposes no personal liability on him. Property convej'ed subject to a lien or incumbrance does not impose any personal liability upon the grantee to the person holding the lien; and an agreement between certain creditors taking a convej'ance of real property in trust to secure themselves, in which they “agree with each other to advance our due proportion of the amount which may be necessary to clear said property from liens and incumbrances, ” creates no obligation on their part to any one else for the payment of such liens or incumbrances.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    The contract and trust deed which are the foundation of this suit, are as follows:
    “The undersigned hereby agree to convey to Stein, Hirsch & Co., Henry Greenebaum, Clark Lipe, Charles E. Steele, Wallace E. Condict, S. F. Leopold, and Ernst Prussing, or to such person, for their use, as they may elect, the land and premises known as Nos. 337, 339 and 341 State street, in the city of Chicago, subject to all incumbrances and liens now standing of record against the same, the consideration to be paid to me for the same being the release of a trust deed, and the indebtedness secured thereby, held by the said Stein, Hirsch & Co., Henry Greenebaum,. Charles E. Steele, William E. Condict, S. F. Leopold, and the firm of Greenebaum & Foreman, said trust deed being secured on property on Wabash avenue, the said property on State street to be held by said parties in proportion to the amount of indebtedness held by said parties against me, and all such indebtedness to be surrendered to me, and I to be kept harmless from any personal liability for or on account of any suits or liens against said property to be conveyed: Provided, always, that said parties to whom said property is to be conveyed shall give unto my brother, Ernst Prussing, the right to purchase said premises on or before July 1, 1874, upon the payment of all cash advanced by them on account of such purchase, and ninety per cent of all obligations surrendered by them to me on account thereof, as the same stood on April 1, 1874: Provided, ahoays, that the indebtedness held against me by the firm of Greenebaum & Foreman may be retained by them against me: Provided, also, that no contract which may-be' given to my brother, as aforesaid, shall at any time be spread upon the public records, or made in any manner to incumber or cloud up the title to be conveyed by me: And provided, further, that the Prussing Vinegar -Works shall be entitled to a lease of that part of the premises now occupied by them until the 1st day of January, A. D. 1875, at a rental of $200 per month, such rent to commence on the 1st day of April, A. D. 1874.
    “Witness my hand and seal, this 4th day of April, A. D. 1874.
    [seal.] Chas. G. E. Prussing.
    “We accept the foregoing, and agree, each with the other, to advance our due proportion of the amount which may be necessary to clear said property from liens and incumbrances.
    Stein, Hirsch & Co., $10,000.
    German Nat. Bank, $11,500.
    (by Henry Greenebaum, Pres’t.)
    First Nat. Bank of Waukegan, $5750.
    (by Chas. E. Steele, Pres’t.)
    S. F. Leopold, $2608.
    W. B. Condiot, $2610.42.
    E. L. Pressing, $2500."
    “This indenture, made this 15th day of April, in the year of our Lord one thousand eight hundred and seventy four, between the Trussing Vinegar Works, a corporation existing under the- laws of the State of Illinois, having its principal office in the county of Cook, and State of Illinois, party of the first part, and Henry Greenebaum, of the said city of Chicago, party of the second part, witnesseth, ” (here follow words of conveyance of the real estate described in the foregoing proposition of agreement,) “subject, always, to all incumbrances or other charges against the same, as shown by the records of the aforesaid county of Cook: to have and to hold the said premises above bargained and described, with the appurtenances, unto the said party of the second part, his heirs and assigns, forever, upon the trusts and for the use and purpose hereinafter specified, in trust; to take the possession and control thereof, and collect the rents and profits thereof, and in his discretion to sell and convey the same to such person or persons, for such prices and upon such terms, as to him shall seem meet, and out of such rents and profits, and the jnoeeeds of such sale, first, to pay all expenses incurred in and about the execution of his trust; second, all sums necessary to be paid on account of interest to accrue upon incumbrances against said premises, for taxes thereon, or for insurance of the buildings situate thereon; third,'all sums of money advanced by the said party of the second part, or by any of the parties named hereafter as beneficiaries under this trust, for the purpose of removing existing charges or liens against said premises, with interest upon such amounts from and after their advancements, and until the payment thereof, at the rate of ten per cent per annum; and fourth, the balance of such rents, profits and proceeds to be allotted and paid as follows : To the firm of Stein,- Hirsch & Co., the sum of $10,000; to the German National Bank of Chicago, the sum of $11,500; to the First National Bank of Waukegan, in the State of Illinois, the sum of $5750; to S. F. Leopold, and Wallace B. Condict, each, the sum of $2610; to E. L. Bras-sing, the smm of $2500; and to Clark Lipe, the sum of $6350.
      Provided, always, that if such balance of rents, profits and proceeds shall be insufficient to pay all of the aforesaid specific amounts, then each one of said parties shall be paid a proportionately less amount; and if such a balance shall be more than sufficient to pay all of the aforesaid amounts, then the same shall each be increased proportionately, so as to make up the full amount of such balance, ” (then follows a covenant of seizin by the party of the first part,) “subject to such charges and liens against the same as are shown by the records of the said county of Cook, ” (and a covenant of warranty against all persons,) “except parties claiming or to claim under or by virtue of the aforesaid incumbrances.”
    (Signed, and sealed with the corporation seal.)
    Chas. G. E. Prussing,
    [l. s.] Pre’st Prussing Vinegar Works.
    E. L. Prussing,
    Sec’y and Treas. Prussing Vinegar Works.”
    This suit had its origin in a bill filed in the Superior Court of Cook county by Ernst L. Prussing, one of the creditors of Charles G. E. Prussing, who accepted the proposition of the latter, as above set forth, to compel the execution by Greenebaum of the trust created by the deed to him of April 15, 1874, the complainant charging that Greenebaum had received moneys from insurance on the buildings on the premises conveyed, and from rents, and that it was his duty to make sale of the property, account for all proceeds thereof, and all moneys paid to him on account thereof, pay off a mechanic’s lien on the property which complainant claimed existed in favor of the Wartman Brothers, who are also parties in the suit, and to distribute the balance of the proceeds of the property to the parties entitled to it under the agreement between Charles G. E. Prussing and sundry of his creditors, above set forth.
    The buildings on the property conveyed in trust by the deed of April 15, 1874, were totally destroyed by fire on July 14, 1874, and at a trustee’s sale, under a trust deed to Benjamin E. Gallup, executed prior to the deed of April 15, 1874, and prior to the alleged lien of the Wartman Brothers, and conveying the same premises to secure a loan of §25,000, Greenebaum, on February 15, 1876, became the purchaser of the premises. The bill alleges these facts, and denies that Greenebaum, by such purchase, acquired any rights adverse to the rights of the Wartman lien, and insists that Greenebaum ivas bound, under the above named writings, to pay off this mechanic’s lien, and that he acted in the purchase as a trustee for the Wartmans, as well as for the other Prussing creditors.
    Upon the execution of the trust deed of April 15, 1874, to Greenebaum, he took possession of the property conveyed, and managed it in accordance with the terms of the trust, collecting the rents up to the time the buildings were burned, (July 14, 1874,) paying off all liens and incumbrances on the property, except that of the Wartmans, out of such rents and out of moneys advanced by the German National Bank, and also thus paying taxes and assessments on the property, and some other necessary expenses; and when Mr. Flower became receiver of that bank, he afterward paid such taxes and assessments as they became due. Flower filed his cross-bill in the suit, to compel the other parties to the agreement of April 4, 1874, to pay to him their proportionate shares of the moneys so advanced by him and the bank,—seeking to have, first, a sale of the land, and distribution of its proceeds according to the terms of the trust deed; and then, a personal decree against each of the other Prussing creditors for their respective proportions of such advances. Charles G. E. Prussing and the Wartmans filed their cross-bills in the cause, asserting the right of the latter to a mechanic’s lien upon the premises, and asking all appropriate relief in respect thereto, which they, or either of them, might be entitled to by virtue of the written instruments above set forth. Answers were filed, proofs taken, and upon hearing the Superior Court granted the relief prayed, decreeing a sale of the property, and that from the proceeds should he paid, first, the expenses of the trust; second, to the Wartmans, $62.42.78; third, to Flower, receiver of the German National Bank, $51,167.19; fourth, that any balance should be paid over to the creditors who signed the agreement of April 4, 1874, proportionately; and if there should not be enough to pay said sums, then a personal decree for the payment of the deficiency by such creditors proportionately, the sum found due to the Wartmans to be first paid in full. On appeal to the Appellate Court for the First District the decree was affirmed, and an appeal taken to this court by Condict, the other creditors assigning cross-errors on the record.
    Messrs. Monroe & Leddy, for the appellant:
    The proposition was altered after its acceptance, and the alteration being material, the law presumes it was made for a sinister purpose by a party in interest, and it devolves on the party offering it to show the contrary. Hodge v. Gilman, 20 Ill. 437; Montag v. Linn, 33 id. 551; Gillett v. Sweat, 1 Gilm. 475; Gardner v. Harbeck, 21 Ill. 129; Kelley v. Trumble, 74 id. 478; Wyman v. Youmans, 84 id. 403; Burwell v. Orr, id. 4.
    The proposition not having been accepted by all the persons named, never became a completed contract. Appellant never participated in or assented to the selection of the trustee, and advances made by him could not bind appellant. Advances were not made by the German National Bank, represented by appellee, and consequently it was not entitled to enforce a contribution. The Wartmans failed to show they had any lien on the premises, and if they ever had any, it has been lost.
    Property conveyed subject to a lien does not impose any personal liability on the grantees, to the person holding the lien. Jones on Mortgages, sec. 748.

      There is no privity of contract between the Wartmans and the other parties. Our contract was with Prussing, to save him harmless from suits and liens against the property,— not to pay somebody else. When the trustee purchased under the prior trust deed to Gallup, he took the title freed from all subsequently created.
    Under the Mechanic’s Lien law a prior incumbrancer has a prior lien on the land, and a subsequent one on the buildings. North P. Church v. Jevne, 32 Ill. 215; Smith v. Moore, 26 id. 392.
    The buildings being destroyed, the contractors would have no lien on the land until the prior incumbrances were fully paid.
    The court also erred in allowing the bank interest against us, at the rate of ten per cent, on advances.
    Mr. Frank J. Crawford, for the appellees the Wartmans:
    The Wartmans’ right to the relief decreed them rests on two grounds: First, their lien was clearly established in their suit for that purpose; and second, they are entitled to payment of their claim under the agreement of April 4, 1874, between Prussing and his creditors. The parties agreeing to keep Prussing harmless on account of any suits or liens against the property, became principal debtors, and Prussing taking the place of surety. Marsh v. Pike, 10 Paige, 595.
    A purchaser of land assuming the payment of an existing lien becomes, as to the mortgagee or original lien debtor, the principal debtor, the mortgagor becoming but the surety. Jones on Mortgages, sec. 741; Calvo v. Davies, 8 Hun, 222. See, also, Funk v. McReynolds’ Admr. 33 Ill. 496.
    In equity the property subject to the lien becomes the primary fund out of which the debt is to be paid. 2 Wash-burn on Real Property, *575; Comstock v. Hitt, 37 Ill. 542; Fowler v. Fay et al. 62 id. 375.

      The trustee had no power to procure the foreclosure of the deed of trust, and purchase the property at the trustee’s sale. His power was limited to “removing existing charges or liens, ” which could only be done by paying them. His conduct in thus attempting to cut the Wartman claim was grossly fraudulent, both in fact and in law, and can not be sustained in a court of equity.
    .When the work was done by the Waftmans, under the contract with Pressing, they acquired a lien against this property, and Pressing was also under a personal liability, on the claim.
   Mr. Justice Sheldon

delivered the opinion of the Court:

Aside from the question as to the right of the Wartman Brothers to a mechanic’s lien upon the premises conveyed to Greenebaum, and Charles G. E. Pressing’s right in respect thereof, the right of Flower, the receiver of the German National Bank, is the only subject of contest in this case.

It is insisted that the proposition of agreement of April 4, 1874, should not have been received in evidence, because there was a material alteration thereof after the written acceptance appended thereto was signed. The only proof of this kind which we understand the testimony to show, is in the insertion of the words, “except two of the stores on State street,” the whole effect of which is in the interest of the Pressing creditors, it entitling the Pressing Vinegar Works to a lease, at the same rental of $200 per month, of two stores less than were included in the agreement as originally drawn. This goes to show that the alteration was not made with any fraudulent purpose as against the creditors interested. They, or either of them, are not shown to have been in complicity with the making of the alteration, and it appears to have been made by one Addison,—a stranger to them. Under such circumstances, the German National Bank, one of the creditors, did not, by the alteration, lose the right to use the instrument in evidence. Bledsoe v. Graves, 4 Scam. 382; Rose Clare Lead, Co. v. Madden, 54 Ill. 261.

It is objected that all the creditors did not participate in the selection of Greenebaum as trustee. It appears sufficiently that they did all concur in his selection except Con-diet, as to whom there is no direct proof that he united in the selection,, and he testifies that he did not know of Greenebaum’s being trustee until after the suit was brought. But he ought to have known of it, as respects this trustee. He accepted a proposition that the property should be conveyed to himself and other creditors, or to such person as they might elect for their use, and that he would advance his proportionate part of the amount necessary to clear the property from incumbrances, in pursuance whereof, eleven days after, the property is conveyed to Greenebaum, as trustee for the creditors, and he goes on ever after managing the property and advancing moneys to pay off incumbrances, with not a word of dissent or objection on the part of Gondict. Under such circumstances he should be held bound, as by a tacit acquiescence in the acting of Greenebaum as trustee.

It is next insisted that there is no personal liability for any deficiency on the part of these creditors; that by the terms of the trust deed the trustee was to take possession" and control of the property, collect the rents and profits, sell the property at his discretion, and out of the proceeds of the sale reimburse himself for all the expenses of the trust, and all advances for paying off incumbrances; that the property itself is the sole resource for such reimbursement. There would be much of force in this view were the deed of trust all there is in the ease, but we think it must be taken in connection with the prior agreement of April 4, 1874. Against so doing, it is said, the proposition of April 4 was made to seven named creditors, of whom Clark Lipe was one; that it was .accepted by six only, not including Lipe, and so was of no binding force because not accepted according to its terms, as it should have been done to render it effective. Prussing’s causing the conveyance to be made shows that he waived the concurrence of Lipe in the proposition, and the written acceptance by the six creditors signifies that they were willing to enter into the proposed arrangement of themselves, without Lipe. There is no pretense of any understanding that the acceptance was not to be operative unless it was signed by Lipe. We can not doubt that the acceptance was binding upon the creditors who signed it, although Lipe did not sign. It is then said that the prior agreement should be taken as merged in, or superseded by, the trust deed. The deed made to the trustee was but the fulfillment of the agreement of April 4 in a single particular of it,—the conveying of the property,—and we are unable to comprehend how that conveyance can be held to be the doing away with the other parts of the agreement which contemplate the doing of things after the conveyance had been made,—such as, the provisions for the benefit of Trussing, and for advances by the creditors to clear the property from incumbrances. We see no reason why the prior agreement of April 4, and the trust deed, may not well stand together, and the former have force. They are, then, to be taken as parts of one transaction, and the creditors should be held personally liable for any deficiency of the advances made by the trustee the proceeds of the property fail to satisfy, for the reason that, by their agreement of April 4, 1874, they agreed with each other to advance their due proportion of the amount which might be necessary to clear the property from incumbrances.

It is objected that if there be any personal liability, it is to Greenebaum, the trustee; that Greenebaum borrowed the money which he advanced, from the German National Bank, and the bank’s only recourse is against Greenebaum,—that it is not entitled to a decree for it against these creditors. The cross-bill of Flower alleges that Greenebaum borrowed the money from the bank, and gave his note therefor for some $25,000, which is still due and unpaid. The form of the transaction .was, a borrowing of money from the bank by Greenebaum. He was the president of the bank, and obtained the money needed to pay advances from the bank, giving his note, as trustee. All the money which was needed from time to time to pay off liens and incumbrances, and charges with respect to the property, was furnished by the bank in manner above stated. The bank being the largest creditor in the case, the money it let Greenebaum have was essentially an advance of the money by it, as one of the creditors interested, for the discharge of liens and incumbrances, for which it was equitably entitled to contribution from the other creditors under the agreement of April 4, and we see no substantial objection to its having a direct decree therefor in its own name. ■

Some exception is taken to the account rendered by the trustee, as not sufficiently proved. There does not seem to have been any contest in the court below as to the accuracy of the account. The trustee gave general testimony of its correctness, and we see no reason for disturbing the finding of the amount due as not sustained by the evidence. This is, however, with one reservation as to the item of ten per cent interest. So far as that could entirely be paid from the proceeds of the property the charge would be proper, because the trust deed allowed it. But in decreeing against the creditors personally they would not be liable for the payment of such interest unless it might be upon payments made in discharge of incumbrances bearing ten per cent interest. Further than that, to render the creditors liable to pay this rate of interest there must have been a contract on their part. There was none in this case. It is not found in the trust deed, all there is there being a simple permission that the trustee may, from the proceeds of the sale of the property, retain that interest on advances made for the purpose of removing incumbrances. And there is no provision in the agreement of April 4 for the payment of such interest. All the interest that could be recovered under that agreement,— the only one the creditors have themselves made in the case, —would be the statutory rate of six per cent interest. The Gallup deed of trust on the property was bearing ten per cent interest, and upon the payment made on the sale of the property under that trust deed we are inclined to think ten per cent interest might be properly allowed, by way of subrogation to the rights of the creditor whose debt was discharged by the sale. This is the only instance we perceive of the payment of any charge upon the land bearing ten per cent interest.

It is urged that because two of these creditors, Stein & Hirseh, and the First National Bank of Waukegan, asked Greenebaum, the trustee, to sell the property in 1876, at an offer which had been made of $30,000, which was more than enough to cover advances to that time, and Greenebaum declined to make the sale, the right to contribution from those two of the creditors is gone. Greenebaum testifies that he declined to make the sale because the directors of the German National Bank, (of whom defendant Leopold, another of the creditors, was one,) did not wish him to make the sale. We can perceive no abuse of his discretion by the trustee in this matter, and certainly a mere difference of opinion among the several creditors as to when a good sale of the property could be made, should not have the effect which is claimed.

There remains for consideration the further question in respect of the alleged mechanic’s lien of the Wartmans. The record shows that John P. Davies and others had instituted their proceeding in the circuit court of Cook county, against Charles G. E. Prussing and others, to establish a mechanic’s lien in their favor upon the premises before mentioned, and that the proceeding was pending on January 21, 1874, when, on that date, the Wartmans filed in that proceeding their intervening petition, claiming to be entitled to a mechanic’s lien on the same premises, for work done and materials furnished in the erection of the building upon the premises, under a contract agreed on, and work commenced February 5, 1873. Subsequently, that proceeding, by agreement of parties, was transferred to the Superior Court, and consolidated and heard with the present cause. The Wartmans, also, on February 7, 1874, brought their action at law against Charles G. E. Trussing, in the Superior Court of Cook county, to recover judgment against him on his personal liability for the indebtedness in respect of which the mechanic’s lien was claimed, and on trial recovered a personal judgment against Prussing in that action, November 7, 1874, for $6367.10. The date of the Gallup trust deed, before mentioned, on the premises, to secure a debt for money borrowed, was December 1, 1871, and recorded December 4, 1871. That trust deed, then, was an incumbrance on the land prior to the alleged mechanic’s lien of the Wartmans. In such case of a prior incumbrance, by the provisions of the statute, the prior incumbrance has preference as to the land, and the lienholder as to the improvements. The building on the premises having been burned on July 15, 1874, there were then no improvements for the lien to attach upon,—there remained but the land, as against which the Wartmans had no claim until the prior trust deed had been satisfied. Their lien, if any, was only upon the equity of redemption, and the subsequent foreclosure sale of the premises, under the trust deed, to Greenebaum, on February 15, 1876, for the sum of $18,059.59, and trustee’s deed to him, cut off their whole lien entirely, and afterwards they had no lien whatever upon the premises.

But in order to sustain the decree here in favor of the Wartmans, their counsel present the case upon the theory that from the trust deed to Greenebaum of April 15, 1874, and the prior agreement of April 4, there was what was tantamount to an assumption by these creditors of the payment of the indebtedness to the Wartmans, in respect of which they claimed a lien, whereby the creditors became liable to the Wartmans, and Prussing stood but as a surety, and whereby Greenebaum stood in the relation' of trustee to them, and his purchase of the premises under the trust deed should be held to have been by him as trustee for them, as well as for the other creditors. We will examine what there may be for the support of this theory. Looking at the trust deed to Greenebaum, we find in it nothing of any assumption by the creditors of the payment of any claims whatever. We see nothing which can be claimed as being in that direction, more than the clause conveying the property, “subject, always, to all incumbrances or other charges against the' same, as shown by the records of the aforesaid county of Cook. ” But property conveyed subject to a lien does not impose any personal liability upon the grantee to the person holding the lien. (Comstock v. Hitt, 37 Ill. 542 ; Fowler v. Fay, 62 id. 375; Jones on Mortgages, see. 748.) And we find nothing of such assumption in the written acceptance of the creditors of April 4, wherein they “agree, each with the other, to advance our due proportion of the amount which may be necessary to clear said property from liens and incumbrances.” That was not coming under any obligation to any one for the payment of such liens and incumbrances, and was not with any such intent,—it was an agreement, merely, between the creditors themselves as to action with regard to each other, fixing the proportion between themselves of the necessary advances for clearing the property from liens and incumbrances.

The only ground of support which we can find for the theory above, is in the concluding words of the first clause in the proposition of agreement of Prussing of April 4, where, after proposing a conveyance of the premises, subject to all incumbrances and liens now standing of record against the same, it concludes with saying, “and I to be kept harmless from any personal liability for or on account of any suits or liens against said property to be conveyed. ” Now, it is to be marked that this provision of indemnity against personal liability is not on account of debts incurred in respect of the property, but it is against personal liability “on account of any suits or liens against said property.” The property was to be taken subject to the liens and incumbrances upon it, and the situation was, that Prussing’s personal liability in respect to such liens and incumbrances still existed, which might be enforced against him, and he be made to pay the liens and incumbrances subject to which the land was taken, and it was to meet such event that it was in Prussing’s proposition that he should be kept harmless from any personal liability for any actual liens and incumbrances,—not for any simple debt, unaccompanied with any lien or incumbrance upon the property, although it may have been incurred in respect of the property. At the time when this decree was rendered, this indebtedness in favor of the Wartmans was not a lien upon this land. It stood as a personal debt, simply, of Prussing, which, although it was originally incurred in respect of this property, there would seem to be no more good reason that these creditors should pay, than any other mere personal debt of Prussing which might have been contracted in respect of the property. ' Should Prussing himself pay this debt, it would not be discharging any lien or incumbrance on the land which the land was taken subject to, which, as we conceive, forms the only true ground and reason for calling upon the creditors for payment, upon the proper construction of the writing. It was not against debts that might be pretended or claimed to be liens and incumbrances that the creditors undertook to indemnify Prussing, but against debts which were, in fact, liens and incumbrances, and nothing more; and, accordingly, when Prussing comes to make the trust deed, in pursuance of his proposition there is inserted in it the provision that the creditors took the property subject to liens and incumbrances, and by virtue of this, Prussing would have recourse back on the creditors for any liens and incumbrances that he might pay off. The whole meaning would seem to have been, that the creditors took the property subject to the liens and incumbrances on it, and that Prussing was to be kept harmless from any personal liability on claims that were really liens and incumbrances on the land, and which the land might be made to satisfy, and there is nothing carrying the idea that the creditors were to pay any of the personal debts of Prussing which were not, in fact, liens or incumbrances upon the land. In the acceptance of the proposition, in fixing the proportion of the money they are to advance, it is. of the amount “necessary to clear said property from liens and incumbrances, ” excluding the idea that there was to be an advance of money for any other purpose.

It is said that at the time of the making of this proposition of April i, this suit at law against Prussing to recover upon his personal liability was pending, and it must have been with the intention of embracing that suit that the word “suits” was employed by him in this above quoted language. Even were this so, the construction we have adopted is not inconsistent ; but there is no evidence that the creditors knew of such suit, or had it in view, and there is no reason why the language should have any different construction from what it imports on its face,—indemnity against personal liability “on account of any suits or liens against said property.” We see no reason why there should be any particularly liberal interpretation to give these building contractors the benefit of the security of third persons for the payment of their claim, which it was never in contemplation, in the making of the contract, that they should have, or why there be any strict interpretation against these creditors to render them liable as sureties for the debt of another person, where it was not within the fair intendment of any undertaking of theirs that they should become such. In our opinion the Wart-mans were not entitled to a decree against these creditors of Prussing, nor was Prussing entitled to a decree against the latter that they should pay the judgment of the Wartmans against him.

The judgment of the Appellate Court will be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Judgment reversed.

Mr. Justice Mulkey,

dissenting:

I do not concur in the opinion of the majority of the court in this case in so far as it holds the creditors of Prussing, under contract of April 4, 1874, are not personally liable to pay the claim of the Wartmans, which at that time was a valid lien upon the State street property. Their undertaking was to keep Prussing harmless from any personal liability on account of any liens against the property,—and this, clearly, could only be done by paying off or obtaining a release of the indebtedness itself. It is manifest that no personal liability attached to Prussing on account of the Wartman lien upon the property, independent of the indebtedness to which the lien related. As the property was to be sold subject to all liens, but for his personal liability on the debts to which the liens related it was a matter of perfect indifference to Prussing whether these liens were ever removed from the property or not; yet, as he was personally liable for these claims, it was very important to him, if such was the understanding, to exact of the purchasers, as he did, indemnity against such personal liability, hence their express undertaking to keep him “harmless from any personal liability for or on account of any suits or liens on said property. ” Suppose the undertaking of the purchasers had been to keep Prussing harmless from any personal liability on account of the debts and claims against the property, instead of liens against the property, I presume no one would question for a moment that this would be a direct undertaking on their part to pay off these incumbrances, or in some manner relieve him from doing so-; and yet, in my judgment, the words actually used are but a different form of expression signifying the same thing. The word “liens,” as used in the contract in the connection mentioned, is but descriptive of the character of the debts or claims against the property, and for which Trussing, as well as the property, was liable. So far as these claims or liens were an incumbrance upon the property, was a matter, as we have already remarked, of no consequence whatever to Trussing, as, by the very terms of the agreement, the property was sold subject to them, and consequently the sale of it imposed no personal liability on him; but as such sale did not, on the other hand, at all relieve him from his existing personal liability on account of these liens or claims, it was of vital importance to him to have a clause inserted in the contract, as he did, indemnifying him against such personal liability. It seems to me, to give the contract any other construction would be to render the provision in question meaningless, and wholly inoperative.

Nor can the fact that the buildings on the property were subsequently burned down, and that the naked lots were sold and conveyed • under a prior mortgage, so as to cut off the Wartman lien on the property, at all affect the right of the Wartmans to be paid the- amount of their claim, or the liability of Trussing, or the purchasers of the property from him, to pay it, for although, by reason of the facts stated, the indebtedness ceased to be a lien on the lots, yet the indebtedness,—the only thing about which Trussing had the slightest concern,—remained the same. The only effect of the sale under the prior mortgage, so far as the parties to this controversy are concerned, was to destroy one of the marks or characteristics by which the indebtedness was theretofore properly described. Before the sale and conveyance the indebtedness was a lien or a lien indebtedness, yet, by reason of the sale and conveyance, the descriptive quality of the lien was eliminated from it, but the personal liability of Prussing, with respect to the indebtedness, remained precisely the same as it did before; and it was, as I think I have fully shown, the sole object of the provision of the contract in question to indemnify Prussing against this personal liability,—and this could only be done by payment or release of the indebtedness itself.

I am authorized to say my brothers Scholfield and Dickey concur in the views expressed by me in this dissent.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    The Preachers’ Aid Society v. Jacob D. England.

      Filed at Springfield March 29, 1883.

    1. Trust—conveyance of land in trust—whether the legal title vests in the trustee or the person for whose use the conveyance was made. The owner of lands executed a deed therefor to one as trustee, reciting therein, that whereas, the grantor was desirous of doing something with the means then in his hands, for the benefit of the superannuated preachers of the Illinois Conference of the Methodist Episcopal Church, and for the widows and orphans of such preachers as might be deceased, and in consideration thereof conveyed the lands, “to have and to hold said premises unto him, said (grantee), in trust for the uses and purposes hereinafter named, that is to say: in trust for the Preachers’ Aid Society of the Illinois Conference of the Methodist Episcopal Church, to be by it disbursed,” etc., and “when the Preachers’ Aid Society of said conference shall have been organized, and put upon a working footing, then the said (grantee) is to convey said premises to said society, to be by it held in the same manner and for the same uses and purposes,” etc. It was held, that as the trust declared in such deed required that the legal title should pass in fee, such a title was thereby vested in the grantee.
    2. Same—when the statute transfers the legal estate to the use. Where a conveyance is made to one in trust, who is to hold the legal title until a corporation competent to take the title and perform the trust shall be created “and put upon a working footing, ” when the trustee is required to convey to such corporation, the case is not one in which the statute transfers the legal estate to the use.
    3. Conveyance — description of grantee—sufficiency. The object of names in a deed being merely to distinguish one person from another, it seems this will be sufficient though the true name of the grantee be not used, or even no name at all, if enough appears to show who was intended. A grantee may be described by his office or his relationship to a known person.
    4. So a conveyance of land describing the grantee as “the corporation lately created for the purpose of aiding superannuated preachers of the Illinois Conference of the Methodist Episcopal Church, and the widows and orphans of such preachers,” would be a sufficient description of a corporation shown to have been lately created for the purpose indicated, though its corporate name might not be precisely the same, no other corporation being shown to have been lately created for, the purpose of aiding such preachers, etc.
    5. Where shortly before the execution of a deed to “the Preachers’ Aid Society of the Illinois Conference of the Methodist Episcopal Church, ” a corporation was created by the name of “The Preachers’ Aid Society of the Illinois Annual Conference of the Methodist Episcopal Church,” and no other corporation for like purposes was shown to exist, it was held, that the words in the deed were used to describe, rather than to express the accurate full name of, the grantee, and passed the title to the corporation actually created and organized.
    6. Repeal of statute—effect upon corporate rights acquired under the statute repealed. The repeal of a statute under which a corporation has been organized, when the repealing act contains a saving clause in favor of corporations created and rights .acquired under, the act repealed, which are declared not to be affected by the repeal, will not destroy the existence of such corporation, nor affect- any of its equitable rights acquired before the repeal, and it may subsequently acquire the legal title to property before held for it in trust.
    7. Former adjudication—in ejectment—judgment vacated on new trial. Where a new trial is awarded, under the statute, in an action of ejectment, the judgment is wiped out, and can not be pleaded or given in evidence for any purpose in any subsequent suit.
    Writ of Error to the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.
    On the 7th of July, 1870, Stephen Griffith executed a deed to James H. Phillips, reciting as follows: “Whereas, the said Stephen Griffith is desirous of doing something with the means now in bis hands for the benefit of the superannuated preachers of the Illinois Conference of the Methodist Episcopal Church, and for the widows and orphans of such preachers as may have deceased. ” And in consideration thereof the deed proceeds to grant and convey, after reciting the property conveyed, as follows, i. e.: “To have and to hold said premises unto him, said Phillips, in trust for the uses and purposes hereinafter named, that is to say: in trust for the Preachers’ Aid Society of the Illinois Conference of the Methodist Episcopal Church, to be by it disbursed for the benefit of superannuated preachers of said conference, and for the benefit of the widows and orphans of such preachers as may have deceased; and when the Preachers’ Aid Society of said conference shall have been organized and put upon a working footing, then the said Phillips is to convey said premises to said society, to be by it held in the same manner, and for the same uses and purposes, that the same is to be held by the said Phillips. ” Phillips expressly accepted the trust, and agreed to execute it.
    On the 24th day of September, 1870, there was incorporated, under the statute then in force, the “Preachers’ Aid Society of the Illinois Annual Conference of the Methodist Episcopal Church, ” the object whereof is declared in the articles of incorporation to be, “to raise and maintain a fund for the relief of the superannuated, itinerant preachers, and widows and orphans of deceased preachers of said conference.” On the 14th of September, 1874, James H. Phillips made his deed conveying the property so conveyed in trust, as aforesaid, to the “Preachers’ Aid Society of the Illinois Conference of the Methodist Episcopal Church, ” reciting therein the execution of the deed of trust by Griffith to him, and the trust therein declared, and declaring that' this deed is made in execution of that trust.
    The “Preachers’ Aid Society of the Illinois Annual Conference of the Methodist Episcopal Church, ” brought an action of ejectment, in the Champaign circuit court, against Jacob D. England, to recover possession of the south-west quarter of the north-east quarter of section 21, in township 20 north, range 14 west, in that county, being one of the tracts so conveyed, as aforesaid. There were pleas of nul tied corporation, and not guilty. Trial was had at the March term, 1882, of the Champaign circuit court, resulting in a verdict and judgment for the defendant. The plaintiff then asked and was allowed a new trial under the statute, and subsequent thereto, on its motion, its suit was dismissed. Thereafter, on the 10th day of April, 1882, Phillips made another deed of the same lands to the “Preachers’ Aid Society of the Illinois Annual Conference of the Methodist Episcopal Church, ” reciting therein that “this deed is made to render effectual and complete a deed made by the grantor to the grantee, September 14, 1874, recorded in book 50, page 485, of deed records of Champaign county, Illinois, wherein the name of the grantee is not fully given. ”
    The present suit was brought for the same land as the former suit, to the September term, 1882, of the Champaign circuit court; and the same was tried at that term again, resulting, as before, in a judgment and verdict for the defendant. This writ of error is prosecuted to reverse that judgment. The other facts material to an understanding of the case sufficiently appear in the opinion.
    Mr. J. O. Cunningham, for the plaintiff in error.
    Mr. William B. Webber, for the defendant in error.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The trust declared by Griffith requiring that the legal title, in fee simple, should pass, such a title was vested in Phillips by the deed of Griffith, (Kirkland v. Cox et al. 94 Ill. 400,) and since, by the trust imposed upon Phillips, he was to hold the legal title until a corporation competent to take the title and perform the trust should be created “and put upon a working footing, ” and then to convey to such corporation, it is clear the ease is not one in which the statute transfers the legal estate to the use. Kirkland v. Cox et al. supra; Perry on Trusts, sec. 300.

But we are of opinion that the deed of Phillips, bearing date September 14, 1874, vested the legal title to the property in controversy in the plaintiff in error. It is said in 2 Washburn on Beal Prop. (2d ed.) 588: “The object of names being merely to distinguish one person from another, it seems to be sufficient if this is effected, though the true name of the party be not used, or even no name at all. The general principle of law is, id certvm est quod certum reddi potest, and a man may be described by his office, or his relationship to a known person.” And hence it would, undoubtedly, have been sufficient, here, if the conveyance had been to “the corporation lately created for the purpose of aiding superannuated preachers of the Illinois Conference of the Methodist Episcopal Church, and the widows and orphans of such preachers, ” for this would be an accurate description of plaintiff in error, no other corporation for that purpose being shown to have been lately created. But the deed under consideration is to “the Preachers’ Aid Society of the Illinois Conference of the Methodist Episcopal Church. ” Had it been shown that a corporation of that name existed, we would, of course, be bound to assume the conveyance was to such corporation; but no such corporation being shown to be in existence, inasmuch as we must, from the language of the deed, infer it was intended to convey to some society or corporation, we are driven to .the conclusion that these words were used to describe, rather than to express the accurate and full name of, the grantee; and regarding them in this light, they clearly designate the plaintiff in error as the grantee. The plaintiff in error is a “Preachers’ Aid Society of the Illinois Conference of the Methodist Episcopal Church, ” and none other is shown to exist,—so by no possibility could these words refer to any other corporation than plaintiff in error. This, in connection with the fact of the delivery to and continued possession by plaintiff in error of the conveyance, renders it absolutely certain the conveyance is to plaintiff in error. ■ But if this deed vested no title, then the deed of April 10, 1882, unquestionably did,—and that was executed before this suit was brought.

The point, however, is made, that the act under which plaintiff in error was incorporated was repealed by an act in force July 1, 1874,—which was before the execution of the first deed by Phillips. Waiving the question of the right of the defendant in error to urge this objection in this suit, we answer, the repealing act referred to has a saving clause in favor of corporations created and rights acquired under the acts repealed, which are expressly declared not to be affected by the repealing act. (Rev. Stat. 1874, p. 1046, sec. 2.) Plaintiff in error was incorporated on the 24th of September, 1870, and thence hitherto has been, and still is, a corporate body. After incorporation it became entitled, in equity, to have the property conveyed by Griffith to Phillips conveyed to it, upon the trusts-declared by Griffith, and so neither the corporate body, nor its rights in regard to this property, were affected by the repeal of the statute under which plaintiff in error was incorporated.

We are unable to discover any merit in the cross-errors assigned by the defendant in error. When (a new trial under the statute being awarded) the plaintiff dismissed its suit, all proceedings in the cause up to that time were wiped out. They were then as if they never had been, (Edwards v. Edwards, 22 Ill. 121, and Hawley v. Simons et al. 102 id. 115,) and it would necessarily follow, the judgment thus wiped out could not be pleaded or given in evidence for any purpose in any subsequent suit. What has been already said in discussing the effect of the conveyances, sufficiently answers the points made under the other cross-errors.

The defendant in error has not shown a shadow of right to the possession of this property, while the plaintiff in error has shown a perfect legal title thereto.

The judgment below is reversed, and the cause remanded, with direction to the court below to enter judgment for the plaintiff in error for the recovery of the possession of the property described in the declaration.

Judgment reversed.


text:
    Charles C. Holton v. Mary Daly, Admx.

      Filed at Ottawa November 20, 1882.

    1. Abatement—motion to dismiss for death of plaintiff, not proper. After the death of the plaintiff in an action to recover for a personal injury from negligence of the defendant, and the substitution of the administrator as plaintiff, a motion was made to dismiss the suit on the ground the cause of action did not survive, the record not showing of what the deceased died: Held, that the motion was impracticable, and properly overruled. If the motion could be allowed to take the place of a demurrer, which was not conceded, it could only reach defects apparent on the face of the record.
    2. Death from wrongful act, etc.—ground of recovery therefor. Under the act of 1853, giving an action to the legal representative of a deceased person to recover damages in case the death of the intestate was caused by the wrongful act, neglect or default of another, the cause of action is the wrongful act, default or neglect of the defendant causing the death, and not merely the death itself.
    3. Same—of the declaration to recover for wrong, causing death. In an action under the act of 1853, giving an action for a wrongful act, etc., causing the death of another, the declaration must aver and the proof show a wrongful act, neglect or default of the defendant causing the death of the intestate, under such circumstances as would entitle him to .maintain an action if death had not ensued, and the fact of survivorship, and the name or names of the widow or next of kin.

      Í. Same—elements of damages in ease. In an action brought by the representative of a deceased person to recover damages of the defendant for his wrongful act or negligence causing the death, no damages can be allowed for the bodily pain and suffering the deceased underwent, and his inability, after receiving the injury, to attend to his affairs generally, and for medical attendance and nursing. The damages recoverable are purely such as arise from pecuniary loss to the widow and next of kin.
    5. Same—effect of act of 1872 upon the act of 1853. Section 123 of the act of 1872, relating to the administration of estates, declaring that actions to recover damages for an injury to the person, except slander and libel, shall survive the party’s death, does not repeal, by implication or otherwise, the act of 1853, giving an action to the legal representative of a deceased person for a wrongful act causing the death of the intestate. Injuries to the person not resulting in death, in case of the death of the injured party from some other cause, will come under the act of 1872, and survive to the personal representative. In .the latter case no action lies under the act of 1853.
    6. Action—when it survives. An action brought by a party to recover damages for a personal injury caused by negligence on the part of the defendant, and for pain and suffering caused thereby, and for loss of time and capacity for earning a livelihood, and for nursing and medical attendance, where the injury complained of results in his subsequent death before judgment, does not survive to his personal representative, but it will survive if his death is from some other and different cause.
    7. Statute—repeal by implication. It is a familiar doctrine that repeals by implication are not favored, and that the earliest statute continues in force unless the two acts are clearly inconsistent with and repugnant to each other, or unless in the later statute some express notice is taken of the former plainly indicating an intention to repeal it. And where two statutes are seemingly repugnant, they should, if possible, be so construed that the later may not operate as a repeal of the former by implication.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.
    On the eighth day of August, 1877, Michael Daly brought an action on the case, in the circuit court of Cook county, against Charles C. Holton, to recover for injuries caused by the bursting of an emery wheel, through negligence, etc. The general issue was pleaded. The cause was tried at the October term, 1878, of the court, resulting in a verdict for the plaintiff, assessing his damages at $5000. At the December term of the court next following, a motion for a new trial, etc., was overruled, and judgment was rendered upon the verdict. An appeal was prosecuted from that judgment to the Appellate Court for the First District, and that court, on inspecting the assignment of errors, and after argument, etc., reversed the judgment of the circuit court, and remanded the cause for another trial. Subsequent to this, Michael Daly died; intestate, and Mary Daly was appointed administratrix of his estate, and afterwards, and after the cause had been redocketed in the circuit court pursuant to the mandate of the Appellate Court, the death of Michael Daly, the plaintiff, was suggested upon the record, and Mary Daly, administratrix of his estate, was substituted as the party plaintiff in the cause, and thereupon the defendant, by his attorney, moved the court to dismiss the cause, as one not surviving to the administratrix; but the court overruled the motion, and the defendant excepted. The cause was again tried at the May term, 1881, of the Cook county circuit court, and resulted in a judgment, for the plaintiff for $4000. An appeal was prosecuted from this judgment to the Appellate Court for the First District, and that court, at its October term, 1881, affirmed the judgment of the circuit court. The present appeal is from the last named judgment.
    Messrs. Holmes, Rich & Noble, for the appellant:
    The court had no jurisdiction to try this action, or any action commenced by Daly, for the reason that the statute specially providing for injuries resulting in death, requires that every such action shall be brought by the personal representative, for the exclusive benefit of the widow and next of kin.
    Section 124 of the chapter of the Revised Statutes relating to the administration of estates, which provides, that “in addition to the actions which survive by the common law, the following shall also survive: * * * actions to recover damages for an injury to the person, except slander and libel,” has no application to personal injuries causing the death of the person. It applies to personal injuries not producing the death of the party injured.
    The court erred in refusing to charge the jury that if the plaintiff could recover at all, she could recover for only the pecuniary loss sustained by Daly, the intestate, as requested in our first proposed instruction, and in charging that if she had a case she could recover for Daly’s bodily pain and suffering.
    Messrs. Hynes, English & Dunne, for the appellee:
    This action was brought by the intestate himself, in his lifetime. He died after one trial, and judgment in his favor for $5000, which was reversed on error. His administratrix was substituted as plaintiff, the statute declaring that the cause of action shall survive.
    No damages were claimed in the declaration for the death of the intestate, and none sought to be recovered on the trial for that cause. The plaintiff in this action -could recover only for what the intestate himself could, had he lived. His rights, whatever they were, passed to his personal representative, and nothing more or less.
   Mr. Justice Scholfield

delivered the opinion of the Court:

Counsel for appellant sought to raise the question whether the present cause of action survives to the personal representative, by a motion to dismiss the suit after the administratrix had been substituted in the place of the deceased plaintiff. But this was manifestly not practicable. Possibly it might have been raised by a -plea in abatement, pleading the death of the plaintiff in consequence of the same injuries to recover damages for which suit was brought; but it is unnecessary to express any opinion upon this point, since no such plea was filed. The motion, even if it could be allowed to take the place of a demurrer, which we do not concede, could only reach defects apparent upon the face of the record, and there was nothing on the face of this record showing of what deceased died.

We are, however, of opinion that substantially the same question arises upon instructions, when considered in connection with the evidence to which they are applicable. The evidence shows the deceased was injured by the bursting of an emery wheel belonging to appellant, whilst he was in the employ of the appellant, and engaged in using such wheel. Suit was brought by deceased for this injury, alleging that it was caused by the negligence of appellant. The evidence shows that death resulted subsequent to the bringing of this suit, in consequence of the same injury. There was no attempt to prove it was the result of any other cause, but on the contrary, the evidence affirmatively and clearly showed it was from that cause. It is, therefore, with reference to this state of the evidence that we are to determine whether the jury were properly instructed.

The seventh instruction, given at the instance of appellee, is as follows:

“The jury are instructed that if, under the evidence and instructions of the court, the jury find the defendant guilty, then, in estimating the plaintiff’s damages, it will be proper for the jury to consider the effect of the injury upon the health of the deceased, (if they believe, from the evidence, that his health was affected by the injury in question,) and also his ability after said accident to attend to his affairs generally in pursuing his ordinary trade or calling, (if the evidence shows that the same was affected by said accident,) and also the bodily pain and suffering he underwent, the necessary expenses of nursing, and medical care and attendance, and loss of time, (so far as these are shown by the evidence,) and all the damage which, from the evidence, can be treated as the necessary result of the injury complained of. The jury can not consider the death of plaintiff’s decedent as an element of damage, but only all damage sustained by him up to the time of his death. ”

If the evidence had shown that the death was the result of causes other than the bursting of the emery wheel, or, rather, that the injuries occasioned by the bursting of the emery wheel, to recover for which alone the suit was originally brought, did not cause the death, it is quite apparent this instruction would be free of objection; but in view of the fact that the evidence showed that the death resulted from the injuries occasioned by the bursting of the emery wheel, a very different question is presented. The common law rule was, that actions merely personal, arising ex delicto, died with the person, and did not survive to the representatives. Thus, Blackstone says: “And in actions merely personal, arising ex delicto, for wrongs actually done or committed by the defendant, as, trespass, battery and slander, the rule is, that actio personalis moritur cum persona; and it never shall be revived, either by or against the executors or other representatives,— for neither the executors of the plaintiff have received, nor those of the defendant have committed, in their own personal capacity, any manner of wrong and injury. ” (See, also, 1 Chitty’s Pleading, 7th Am. ed. 78.) But our General Assembly, by an act approved February 12, 1853, changed this rule, enacting as follows:

“Sec. 1. Whenever the death of a person shall be caused by a wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or company or corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured. ”

The cause of action is plainly the wrongful act, neglect or default causing death, and not merely the death itself* Damages are recoverable, not for the killing, but, as was observed by Comstock, J., in Dibble v. New York and Erie R. R. Co. as quoted by him in his dissent in Whitford v. Panama R. R. Co. 23 N. Y. 486, “notwithstanding or in spite of the death which ensues. The statute recognizes but one cause of suit, and that is the wrong done, irrespective of its consequences. ” And on this principle it has been held, if the injured person, in his lifetime, releases his claim for damages, his representatives can not maintain any action upon his subsequent death resulting from the injury thus compounded. Shear-man & Redfield on Negligence, (2d ed.) sec. 301; Whitfield v. Panama R. R. Co. supra; Dibble v. New York and Erie R. R. Co. 25 Barb. 183; Reed v. G. E. R. R. Co. Law Rep. 3 Q. B. 555.

It is provided by the next section of the act, (section 2,) that “every such action shall be brought by and in the names of the personal representatives of such deceased person, and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such damages as they shall deem a fair and just compensation, with reference to the pecuniary injuries resulting from such death, to the wife and next of kin of such deceased person, not exceeding the sum of $5000.” In construing this section this court said, in City of Chicago v. Major, 18 Ill. 356: “The legislature intended that the money recovered should not be treated as a part-of the estate of the deceased. They designed to exclude the creditors from any benefit of it, and to prevent its passing by virtue of any provisions of the will of the deceased. The personal representatives bring the action, not in right of the estate, but as trustees for those who have a more or less direct pecuniary interest in the continuance of the life of the deceased, and who had some claim at least upon his or her natural love and affection. ” And it has accordingly since been held the declaration must aver, and the proof must establish, a wrongful act, neglect or default of defendant, causing the death of the intestate under such circumstances as would entitle him to maintain an action if death had not ensued, and the fact of survivorship, and the name or names of widow or next of kin. Quincy Coal Co. v. Hood, Admr. 77 Ill. 68.

Waiving, however, all question as to the sufficiency of the pleadings in this regard, it is plain, if the object be to recover under the statute quoted, the instruction was erroneous, because it says the bodily pain and suffering the deceased underwent, and his ability, after receiving the injury, to attend to his affairs generally, etc., are elements to be taken into consideration by the jury in assessing damages. This court has held the jury are not authorized, in such cases, to give damages for j)ain and suffering, but that the damage for which there may be recovery is purely that arising from pecuniary loss,—nothing can be given as a solace. (Chicago and Rock Island R. R. Co. v. Morris, 26 Ill. 400; Chicago and Alton R. R. Co. v. Shannon, Admr. 43 id. 338.) And so, also, upon like principle it has been held, if the next of kin are collateral, it is a material question whether they were in the habit of claiming and receiving pecuniary assistance from the deceased. If they were not, they can recover but a nominal sum; but where the relation of husband and wife, or parent and child, exists, the law presumes pecuniary loss from the fact of death. City of Chicago v. Scholten, 75 Ill. 468; Chicago and Northwestern R. R. Co. v. Swett, Admr. 45 id. 197.

Unquestionably, if the suit depended upon common law principles, it could not be maintained; and if it is for the purpose of recovering under the act of 1853, the instruction is as unquestionably erroneous.

But counsel for appellee claim the ruling in the lower courts may be sustained under the 123d section of the revised act in relation to the administration of estates, approved April 1; 1872, and in force July 1,1872, whereby it is enacted that in addition to the actions which survive by the common law, certain actions therein named, including “actions to recover damages for an injury to the person, except slander and libel, * * .* shall also survivé.” (Bev. Stat. 1874, p. 126.) There is nothing in that section which professes to repeal the act of February 12, 1853. Both this section and the act of February 12, 1853, are reproduced in the revision of 1874, and it is therefore clear the General Assembly intended both to stand. Is there such repugnance between them that both can not be the law ? It is a familiar doctrine that repeals by implication are not favored, and that the earliest statute continues in force unless the two acts are clearly inconsistent with and repugnant to each other, or unless in the later statute some express notice is taken of the former, plainly, indicating an intention to repeal it. (Town of Ottawa v. LaSalle County, 12 Ill. 339.) And it is held, where statutes are seemingly repugnant, they should, if possible, be so construed that the latter may not operate as a repeal by implication of the former. (Ibid; Bruce v. Schuyler, 4 Gilm. 221.) So, also, a subsequent statute which is general, does not abrogate a former statute which is particular. Chicago v. Quimby, 38 Ill. 274; Card v. McCaleb, 69 id. 314; McDonough County v. Campbell, 42 id. 490; Hume v. Gossett, 43 id. 297; People v. Barr, 44 id. 198; Gunnarssohn v. City of Sterling, 92 id. 569.

The act of February 12, 1853, applies, as we have seen, by its own terms, to all cases where “the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action, and recover damages in respect thereof. ” As was said in City of Chicago v. Mayor, supra, this “language is very broad and comprehensive, embracing, in direct and positive terms, all cases where, if death had not ensued, the injured party could have maintained an action for the injury;” and, as we have already observed, it is the wrongful act, neglect or default that constitutes the cause of action. A right of action which, at common law, would have terminated at the death, is continued for the benefit of the wife, husband, etc., and its scope enlarged to embrace the injury resulting from the death. Cooley on Torts, 263, 264; Shearman & Eedfield on Negligence, (2d ed.) see. 301.

There were left, however, injuries to the person not resulting in death, for which, in the event of the death of the injured party before obtaining judgment, no remedy was provided, affording a proper subject matter for the act of 1872. If a party receiving injuries died from other causes, no action could be maintained under the act of February 12,1853; but now, under the statute of 1872, the cause of action survives to his personal representatives. It is not to be presumed it was intended there should be two causes of action, in distinct and different rights, by the same party plaintiff, for the same wrongful act, neglect or default. It would, obviously, be impossible to draw a line severing with accuracy the damages resulting from the permanent character of the injury, and its effect upon the capacity of the plaintiff for future usefulness in acquiring property, etc., from the actual loss to the wife, parent or child, in consequence of being deprived of this same capacity, by reason of the same injury resulting in death. Yet if the administrator is entitled to recover for the benefit of the estate, generally, just what the plaintiff could have recovered if he had not died before judgment, it is settled he can recover for permanent injuries impairing future usefulness, and consequent pecuniary loss. (Peoria Bridge Association v. Loomis, 20 Ill. 235.) Nevertheless, as we have seen, it is for precisely this loss, when death results, that the widow, parent or child, or next of kin', is entitled to recover.

The recognition of the right in the deceased to have controlled this action in his lifetime, leads, logically, to the conclusion that a recovery by him would have been a bar to a recovery by his representative, and this because the cause of action would have been merged in the judgment. (Freeman on Judgments, sec. 241.) But if the action by the administrator, under the act of February 12, 1853, is for something other and different than that for which the deceased could have recovered had he obtained judgment in his lifetime, it is manifest no such merger would have taken place. It is true the measure of recovery in the different cases is not the same, but the cause of action is, viz., the wrongful act, neglect or default.

We feel, therefore, constrained to hold that the act of. 1872 was not intended to apply to cases embraced by the act of February 12, 1853. It hence follows, that in this . action plaintiff occupies precisely the same position that he would have occupied had it not been begun until after the death, and it had then been begun under the act of February 12, 1853.

The court erred in giving the instruction quoted, and for this error the judgment is reversed, and the cause remanded, with leave to appellee to amend her declaration, if she shall be so advised, and for further proceedings in accordance with this opinion.

Judgment reversed.


author: Mr. Chief Justice Scott

text:
    Chicago and Alton Railroad Company v. Amelia T. Robinson.

      Filed at Springfield March 29, 1883.

    1. Instruction—as to matters not in issue. An instruction directing the attention of the jury to an element of liability not shown by the pleadings or evidence in the case, is calculated to mislead, and is erroneous. It is not proper to direct the attention of the jury to matters not in issue.
    2. Same—directing the jury as to what is the better evidence. It is obvious error for the court to announce to the jury what is the better evidence in a case, or what the jury may so regard. It is the province of the jury to say to what evidence they will attach the greater weight in case of a conflict, and with this right or privilege the court should not interfere.
    3. Same—assuming facts. An instruction which assumes the existence of material facts, without which the plaintiff can not recover, some of which are matters of contention between the parties, is erroneous.
    4. SAME'—generally■—as to character of signal to be given on railroad train approaching highway crossing. In an action against a railroad company to recover for an injury caused by a collision with a buggy while crossing the railroad, the court instructed the jury, in substance, that it was the duty of the railroad company, when its trains were about to cross a highway on a common level, to give “due warning,” so that a person traveling on the highway with a team and carriage might stop and allow the train to pass: Held, that the instruction ought not to have been given, as it might have led the jury to believe that the company was bound to do more than to ring a bell or sound a whistle.
    5. Evidence—affirmative and negative testimony—of their relative weight. In a suit against a railroad company for negligence in not giving the statutory signals on approaching a road crossing with a train, the jury are not, as a matter of law, justified in giving greater weight to the testimony of witnesses who state negatively that no bell was rung or whistle sounded, than to that of witnesses stating affirmatively that such was done. The rule would seem to be the other way.
    Appeal from the Appellate Court for the Third District; —heard in that court on appeal from the Circuit Court of Tazewell county; the Hon. Ninian M. Laws, Judge, presiding.

      Mr. C. Beckwith, Mr. N. W. Green, and Mr. M. D. Beecher, for the appellant.
    Messrs. B. S. Prettyman & Sons, and Mr. William Don Maus, for the appellee.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

This action was brought by Amelia T. Bobinson, against the Chicago and Alton Bailroad Company, to recover for personal injuries. Plaintiff, with her husband, was traveling on the highway in a buggy, and just as they were crossing the track of defendant’s railroad, at a public road crossing, a special train, under the management and control of defendant’s servants, collided with the buggy in which’ plaintiff and her husband were riding, by which she sustained severe and permanent injuries. The negligence with which defendant is charged, and which, it is averred, caused the injuries to plaintiff, consists in a failure to ring a bell or sound a whistle on the locomotive that caused the injury, as the law requires shall be done at all public road crossings, and in permitting banks of earth to lie, and weeds, brush and other obstructions to stand and grow at and along its track and grounds, so near the crossing as to prevent and obstruct a view of approaching trains by any one traveling on the highway and about to cross the railroad, in time to avoid danger. It is also made a ground of complaint the train that collided with the buggy in which plaintiff was riding was what is called a “wild train,”—that is, a train run upon no schedule time,—and that it was run at an unusual rate of speed.

With the testimony to be found in the record this court will not concern itself, further than to ascertain whether the law given by the trial court to the jury, in its instructions, was applicable to the evidence. With that purpose in view the evidence has been carefully considered, and it is found some of the instructions given for plaintiff were calculated to mislead the jury, conceding, as must be done, the facts were well found by the Appellate Court. There is and can be no pretense the injuries of which plaintiff complains were willfully inflicted by defendant’s servants. The utmost that can be claimed on any hypothesis consistent with the evidence, 'is, her injuries resulted from the negligence of defendant’s servants in permitting obstructions along the line of its right of way so near the crossing as to obstruct the view of approaching trains by any one traveling on the highway, or from the negligent conduct of defendant’s servants in charge of the train that produced the injury, by which it was unskillfully managed, or from the omission to give the usual signals of danger. Neither the declaration nor the ascertained facts show any willful intent on the part of defendant’s servants to inflict an injury upon plaintiff. That element is absolutely wanting in any view that can be taken of the case.- Indeed, defendant is not charged with any such intent, and no such issue could be rightfully submitted to the jury. Hence, it is thought the second instruction of the series given for plaintiff was calculated to and may have misled the jury as to the true issues involved. The clause of the instruction bearing on this phase of the case is, “where the jury believe, from the evidence, an injury is willfully done by a railroad company, or results from a gross neglect of duty by the company, then the company is liable for such injury.” The charge, it will be perceived, directs the attention of the jury to an element of liability in the case made neither by the pleadings nor the evidence, and coming, as it did, from the court, the jury might believe it was warranted by the testimony, and must, therefore, have been most hurtful to the defence. Any instruction that directs the attention of the jury, to an issue not involved, is erroneous, and may be the means of producing a verdict warranted neither by the law nor the evidence. This charge is justly subject to criticism in this respect, and ought not to have been given.

But the first clause of the fourth instruction is still more objectionable. It is as follows: “In an action against a railroad company alleging negligence in not sounding the whistle or ringing a bell on approaching a road crossing, a jury may be justified in giving greater weight to the testimony of witnesses who state negatively that the whistle was not sounded or the bell rung, than to that of witnesses stating affirmatively that such was done. ” That which follows in the same charge in no way qualifies or explains the proposition stated. As expressed, the proposition is not the law. It is obvious error for the court to pronounce as to what is the better evidence in the case, or as to what the jury may so regard. It is the province of the jury to determine as to what evidence they will give the greater weight, and their privilege in that regard should not be interfered with by the court. But a more serious objection is, it is not true, as a matter of law, as this charge seems to hold, that in such cases greater weight may be given to the testimony of witnesses “who state negatively that the whistle was not sounded or the bell rung, than to that of witnesses stating affirmatively that such was done. ” Cases in this court that hold a doctrine different from that stated in the instruction quoted, are numerous and consistent. (Frizell v. Cole, 42 Ill. 362; Chicago, Burlington and Quincy R. R. Co. v. Stumps, 55 id. 367; Chicago and Alton R. R. Co. v. Gretzner, 46 id. 74; Chicago, Burlington and Quincy R. R. Co. v. Dickson, 88 id. 431.) These cases all hold that concerning such matters as are involved in the case being considered, positive testimony is entitled to more weight than negative evidence in that respect. Conceding the facts to be as found by the trial court, it is not a case where negative evidence can be regarded as of equal dignity with positive testimony. The instruction was, therefore, highly calculated to produce a verdict not warranted by the law.

The fifth instruction for plaintiff is justly subject to the criticism it assumes the existence of material facts, without which plaintiff could not recover in any event; some of which are matters of contention between the parties. It is for that reason erroneous. (Bradley v. Coolbaugh, 91 Ill. 148.) The substance of plaintiff’s seventh instruction is, that it is the duty of the railroad company, when its trains are about to cross a highway on a common level, to give “due warning,” so that a person traveling on the highway with a team and carriage may stop and allow the train to pass. Exactly what is meant by “due warning,” is not readily understood. The servants of a railroad company, when approaching a public road crossing, are required to give the statutory signals of danger,—that is, to sound a whistle or" ring a bell. These signals are well understood by every one, and they constitute all the “warning” the law requires the servants on the train to give. It may be the jury understood the words “due warning, ” to mean more than what the statute requires, and if so, it made an erroneous impression, and ought not to have been given.

It may be some criticism may be justly made on other instructions given for plaintiff, but it is not deemed necessary to remark upon them. If it shall be perceived any errors have intervened, the same will doubtless be corrected on another trial, by the court, on its attention being called to them.

For the errors indicated the judgment of the Appellate Court will be reversed, and the cause remanded to that court, with direction to reverse the judgment of the circuit court and remand the cause for a new trial.

Judgment reversed.'

Mr. Justice Dickey : I concur in the conclusion reached, but not in all the positions taken.


author: Mr. Justice Walker

text:
    J. S. Frederick v. Connecticut River Savings Bank et al.

      Filed at Springfield March 29, 1883.

    1. Appeal—lies only from, final judgment or decree. Appeals and writs of error are allowed only in case of a final judgment or decree. Mere interlocutory orders or decrees entered in the progress of a case are not the subjects of review in this court, until the case is terminated by final judgment or decree.
    2. Same—what is a final decree. No appeal or writ of error lies on an order of the circuit court refusing to grant a temporary injunction, or on an order striking the “suit” from the docket. The striking of the suit from the docket concludes no one, and is not equivalent to a dismissal of the bill for want of equity.
    Writ of Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of Ford county; the Hon. Owen T. Reeves, Judge, presiding.
    Messrs. Kinnear & Moffett, for the plaintiff in error.
    Messrs. James, Jack & Moore, for the defendants in error.
   Mr. Justice Walker

delivered the opinion of the Court:

This was a bill filed by plaintiff in error, in the Ford circuit court,-to enjoin the sale of a quarter section of land under a deed of trust given .to secure the payment of a sum of money owing by plaintiff in error to the Connecticut River Savings Bank. The bill alleges that plaintiff in error, being desirous of borrowing $6000, in October, 1872, applied to Robinson & Calender, of Peoria, agents of the bank, for the loan, when it was agreed that the bank would make a loan of $5600,—$2000 on each of two quarters, and $1600 on the quarter involved in this case; that the complainant was to pay §280 commissions,—part to Robinson & Calender, and the balance to the bank; that the loan was made, and the notes and securities executed, and complainant received but $5320; that the $280 was exacted by Robinson & Calender, by the authority of and as the agents of the bank, as commissions, over and above ten per cent, the rate of interest at which the money was loaned, whereby the transaction became usurious.

It is further alleged that the $2000 notes, each, have been paid in full; that on one was paid the sum of $2643, and on the other the sum of $3000; that in September, 1877, complainant asked for and received a renewal of the $1600, and a loan of $400 more, and gave his note for $2000, at eight per cent, payable in five years, and to secure the same he gave the trust deed on the land sought to be enjoined from sale by this suit; that $60 was deducted at the time this latter arrangement was made, complainant receiving but $340 of this last loan.

It is claimed and urged that the $60 retained as commissions was compensation to Robinson & Calender from the bank for services, as its agents, and being such, it was retained as a part of the interest charged for forbearance for the loan of the money, and whén added to the interest it made a rate greater than that allowed by law, and that it tainted the transaction with usury.

Plaintiff in error applied to the circuit judge, at chambers, for an order to restrain the sale of the land under the trust deed, but the application was resisted by Robinson & Calender. The bank, although made a party, was not served at that time, nor when the motion was renewed at the next term of. the circuit court. The court refused to grant an injunction on both applications, and the case was, by order of the court, stricken from the docket. From the order refusing the injunction and striking the case from the docket, complainant removed the case to the Appellate Court, where, on a hearing, the decree of the circuit court was affirmed, and he brings the case to this court on error.

Was there such a final decree in this case as to authorize an appeal or writ of error for its removal for a hearing in this court? The statute only allows appeals and writs of error where there is a final judgment or decree. Mere interlocutory orders or decrees, entered in the progress of the case, are not subject to review by this court until the case is terminated by final judgment or decree. Was this such a decree? No one will claim that the order made in vacation denying the injunction could be appealed from, because it was not final. Nor did it become so by the judge embracing in the order a provision that if plaintiff in error would give bond and obtain an order from an appellate judge, the application might be renewed at the next term of the circuit court. At that term a motion was again made to the court for an injunction, but it was denied, and the “suit” stricken from the docket. The case was not submitted on demurrer to the bill, or on the bill, answer and proofs. There was an answer by Calender, and affidavits by Robinson and Bourland, but no depositions or oral proof. The answer and affidavits seem to have been used simply to prevent the grant of a temporary injunction until the final hearing. The bank was not in court by any kind of service or appearance. Had there been service or appearance it was not defaulted or ruled to answer. The case was not then in a condition for a hearing on the merits, nor was there such a hearing. It then follows that there was no final decree in the case, and a writ of error or appeal did not lie to the Appellate Court, and if not, then a writ of error does not lie to this court.

If it be said that the order striking the “suit” from the docket is such a final order, it may be answered that such order concluded no one or any thing. On a proper application the cause could be reinstated, and progress to a final hearing and decree. And were plaintiff in error to file a bill similar to this, can any one suppose that the order under consideration could be pleaded to bar a recovery ? Surely not, because there has been no trial on the merits, either on demurrer or proofs. There must be a final hearing before the decree can be pleaded as a bar. The striking of the case from the docket was not the equivalent of dismissing the bill for the want of equity.

The writ of error in this ease must therefore be dismissed.

Writ of error dismissed.


author: Mr. Justice Dickey

text:
    William Collier et al. v. Elizabeth A. Beers et al.

      Filed at Ottawa March 28, 1883.

      Laches—asserting a resulting trust. A bill filed by heirs eighteen years after their majority, to assert a resulting trust against real estate, on the ground that the same was bought with means derived from their father’s estate thirty years before, is subject to the defence of unreasonable delay, and laches, unless the delay is satisfactorily accounted .for.
    Writ of Error to the Circuit Court of De Kalb county; the Hon. C. W. Upton, Judge, presiding.
    Mr. J. J. Flannery, for the plaintiffs in error.
    Messrs. Lowell & Carnes, for the defendants in error.
   Mr. Justice Dickey

delivered the opinion of the Court:

Some time in the year 1839, John Judd entered at the land office, in his own name, certain lands in the county of DeKalb, and a patent was afterwards issued to him by the United States. In 1840 he married Mrs. Mary Collier, then the widow of Joseph Collier, Sen., who had died in 1837. At the time of his death Collier lived on a part of this land, and is said to have had what was at that day known as a claim title to all the land in question, good, under our then statute, against all persons other than those holding under the United States. After. Collier’s death his widow, with .several minor children (heirs of Collier), continued to live in the family home, and were there living at the time of the entry of the land by Judd, in 1839, and at the time of his marriage with Mrs. Collier, in 1840. Mr. Judd becoming the head of the family, took possession of the land in 1840, occupied it, paying taxes until the time of his death, which occurred December 27, 1872. Judd left a will, by which he gave to his daughter, for life, the land in question, and remainder over to her children, in fee.

This is a bill filed by the surviving children and heirs of Joseph Collier, deceased, against their mother, Mrs. Judd, who, under dower rights, was in possession of part of the land, and against the devisees of Judd, claiming that the land bought of the United States, in 1839, by Judd, was paid for with money furnished to him by the widow of Collier, to buy the land for her and her then children, and the money was part of the proceeds of the sale of part of the personal property of Collier’s estate, and hence Judd held the naked legal title in "trust for the complainants. The widow (Mrs. Judd) died pending the suit. On hearing, the bill was dismissed for want of equity.

Among other defences the lapse of time after the alleged rights of complainants accrued and before suit brought, was set up. It appeared that all the complaining heirs of Collier were of age at least eighteen years before this suit was brought. We think this defence was valid. The complainants seek to excuse the delay upon the allegation that the fear of making trouble and domestic difficulty between their mother and her husband, Mr. Judd, caused them to forbear asserting their e rights in court. Without discussing the details shown by the proofs, we content ourselves in saying that we do not think the proofs show sufficient cause to excuse such very long delay. It seems that some ten or twelve years before suit brought, some of the heirs of Collier asserted a claim to some part of the lands claimed by their father, and that some negotiation as to settling the matter occurred, which did not accomplish the end. The precedent of allowing titles to real estate to be disturbed in a suit brought eighteen years after it might have lawfully been instituted, by declaring a resulting trust, upon oral testimony as to the ownership of money invested thirty years before suit brought, and all this after the death of the alleged trustee, would be a bad one. Such laches can not be excused upon grounds no more cogent than those shown by the proofs in this case.

The decree of the circuit court is therefore affirmed.

Decree affirmed.