author: Mr. Justice Mulkey

text:
    Adam Roth v. Louisa Michalis et al.

      Filed at Mt. Vernon June 16, 1888,

    1. Conveyance—when a deed takes effect. A deed or conveyance of land takes effect from its delivery, or not at all. In this respect it- differs from a will, which speaks from the death of the testator, and operates on property of the testator then on hand.
    2. Same-—as to certainty required in respect to the property to be conveyed. A deed made to a trustee, of the undivided half of the real and personal estate the grantor might leave at his death, after the payment of his just debts, in trust for the heirs of the grantor’s wife, and which provided that if the grantor should survive his wife the deed should become void, was held inoperative as a conveyance of any property, for uncertainty as to the property the grantor might leave at the time of his death.
    3. Trust—when the legal title passes to the cestui que trust. A conveyance of land to one person in trust for another, imposing no act or duty upon the trustee, will, under the Statute of Uses, operate to pass the legal as well as the equitable title to the cestui que trust.

      i. Same—declaration of trust—testamentary disposition. "Where one, for a valuable consideration, attempts to make a conveyance of property to another, and by some casualty or inadvertence the instrument is defective and inoperative as a conveyance, á court of equity will, in a proper case, treat the instrument as a declaration of trust or as a contract for a conveyance, as the circumstances may require.
    5. The owner of lands and personal property executed an instrument in writing, which purported to grant and convey to a trustee named, the undivided half part of all the real and personal estate of the 'maker which he might leave at his death, after the payment of his just debts, t-o be held by the trustee for the heirs of the maker’s wife. The instrument reserved to the maker the absolute control and disposal of the property during his life, and provided that if he should survive his wife it should become void. It was not attested as required by the Statute of Wills: Held, that the instrument could not be sustained as a declaration of a trust, but was in the nature of a testamentary disposition, and therefore void for want of proper attestation.
    6. Same—certainty as to subject matter. An existing property right in or to some distinct subject matter is essential to the existence of every trust, and any instrument, however perfect otherwise, which fails to disclose this, can not properly be established as a declaration of trust.

      Writ of Error to the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.
    Mr. William Winkelman, for the plaintiff in error:
    The consideration of natural love and affection for the wife and her relations, and one dollar, is a good consideration. Blakely v. Hatton, 3 Dana, 521.
    An acknowledgment in a deed that the consideration has been paid, can not be contradicted for the purpose of defeating the conveyance. Pritard v. Brown, 4 N. H. 397; McCubbin v. Crownwill, 7 G. & J. 157; Merriam v. Harson, 2 Barb. Ch. 252.
    We contend that upon the execution of the trust deed, and delivery thereof to the grantee, Stolberg, the title to the property then owned and since acquired and possessed by the grantor, was conveyed to the cestui que trust, subject to the control and privilege of disposing of the property by the grantor. If the words used in the deed, “I have granted, alienated, released and confirmed, and by these presents do give, grant, alien, release and confirm, unto said Stolberg,” etc., do not constitute a complete conveyance, we must confess that we are ignorant of the import and meaning of the language, and are misled. Shackelton v. Sebree, 86 Ill. 617; Doe ex dem. McConnel v. Reed, 4 Scam. 117; Jackson v. Fisher, 10 Johns. 456; Barrow v. Window, 71 Ill. 214; Whitam v. Brooner, 68 id. 344; 21 Wend. 120.
    That after the deed has been delivered and recorded, the withdrawal and destruction of the same by the grantor, without the knowledge and consent of the cestui que trust, has not the effect of re-investing the title to the property in the grantor, we cite Erwin v. Hall, 18 Bradw. 315; McCarty v. Kearnan, 86 Ill. 292; Shaeffer v. Fithian, 17 Ind. 464; 1 Greenleaf on Evidence, sec. 265.
    We presume it will be contended by counsel for defendants, that George Heberer, by his will, disposed of all his property, including the property mentioned in the bill. If such argument is advanced, we reply that Louisa Heberer, the executrix and principal devisee, is estopped from denying what she has in her petition and inventory sworn to, and under her hand and seal deliberately admitted to be true,—to-wit, that “George Heberer died seized and possessed of the property mentioned in the bill.” Trimple v. State, 4 Blackf. 437; Arnott v. Friel, 50 Ill. 175; Smith v. Whitaker, 11 id. 417.
    Mr. J. M. Hay, Mr. A. S. Wilderman, and Mr. J. M. Hamill, for the defendant in error Louisa Michalis:
    The instrument, although in the form of a deed, and using the terms, “give,” “grant,” etc., was not intended to take effect until the death of George Heberer, is purely testamentary in character and effect, and is ambulatory and revocable. Badgley v. Votrain, 68 Ill. 25; Watkins v. Dean, 10 Yerg. 321; Crary v. Rawlins, 8 Ga. 450; Kinnebrew v. Kinnebrew, 35 Ala. 628; Hauser v. Moore, 8 Ohio St. 239; Gage v. Gage, 12 N. H. 371; Hester v. Young, 2 Kelly, 31.
    A voluntary donor, whether he undertakes to convey the property directly to the beneficiary, or to another in trust for him, must do all in his power to pass the title to the property which is the subject of the transaction, to the donee or trustee, and to divest his own title and possession, or the transaction will remain incomplete and executory. Badgley v. Votrain, 68 Ill. 25; Young v. Young, 80 N. Y. 422; Milroy v. Lord, 4 DeG., F. & J. (65 Eng. Ch.) 264; Bridge v. Bridge, 16 Beav. 315, (13 E. L. and Eq. 496); Marler v. Tommas, L. R. 17 Eq. 8, (7 Moak, 636); Beech v. Keep, 18 Beav. 285; Richards v. Delbridge, L. R. 18 Eq. 11, (9 Moak, 669); Heartley v. Nickolson, L. R. 19 Eq. 233; Warriner v. Rogers, L. R. 16 Eq. 340, (6 Moak, 781); Jones v. Lock, L. R. (1 Ch. App.) 25 ; McFadden v. Jenkins, 1 Hare, 458; Antrobus v. Smith, 12 Ves. Jr. 39; Edwards v. Jones, 1 M. & C. 226; Price v. Price, 8 E. L. and Eq. 27; Dillon v. Coppin, 4 M. & C. (18 Eng. Ch.) 647.

      The legal owner of real or personal property may make a voluntary disposition of it by first making a complete conveyance of it to the donee, sufficient to pass the legal title; or, second, conveying it in the same manner to a third person to hold in trust for the cestui que trust; or, third, by declaring himself as holding it in trust for the donee. But where the donor has the legal title, and the property is of such a nature that a legal estate can be transferred,—that is, land, chattels, money, and some species of things in action,—an imperfect conveyance or assignment, which does not pass the legal title, will not be aided or enforced in equity. In such a case, the donor has not done all in his power to complete the transaction. Badgley v. Votrain, 68 Ill. 25; Marler v. Tommas, L. R. 17 Eq. 8, (7 Moak, 63); Milroy v. Lord, 14 DeG., F. & J. 264; Mitchell v. Smith, 4 DeG., J. & S. 422; 2, Pomeroy’s Eq. Jur. secs. 997, 998, and notes.
    There was no legal obstacle in the way of George Heberer, who was the legal owner, divesting himself of the title and possession of all the property, personal and real, and investing the trustee with both the title and possession, hut the instrument of November 5, 1867, was entirely incapable of passing the title of the personal property, which consisted chiefly of stocks, notes and moneys, to the trustee, unless it was accompanied by a delivery of the property to the trustee, and was, therefore, a mere covenant or promise to give this property. In other words, the donor had not done all in his power to complete the transaction, and it is therefore purely executory, if treated as a conveyance in trust. Badgley v. Votrain, 68 Ill. 25; Ryan v. May, 14 id. 49; Fortier v. Darst, 31 id. 212; Milroy v. Lord, 14 DeG., F. & J. 264; Marler v. Tommas, L. R. 17 Eq. 8, (7 Moak, 636); Bridge v. Bridge, 16 Beav. 315 ; Meek v. Kettlewell, 1 Hare, 474; Young v. Young, 80 N. Y. 422; Searle v. Law, 15 Sim. 95; Ward v. Audland, 8 Beav. 201; Bentley v. McKay, 12 id. 12; Edwards v. Jones, 1 M. & C. 266; Scales v. Munde, 6 DeG., M. & G. 43.

      The instrument does not create in the donor a life estate in express terms, but it does create in or reserve to him the absolute, unrestrained power to dispose of the property in such manner and to such uses as he might see proper, and so left in the donor the absolute fee and ownership of the property. Fairman v. Beal, 14 Ill. 244; Funk v. Eggleston, 92 id. 515; Jackson v. Bull, 10 Johns. 19 ; Jackson v. Robbins, 16 id. 537; Ide v. Ide, 5 Mass. 500; Bowen v. Dean, 110 id. 438; Jackson v. Coleman, 2 Johns. 391; Kimball v. Sullivan, 113 Mass. 345 ; Helmer v. Shoemaker, 22 Wend. 137.
    Mr. W. C. Kueffner, for the other defendants in error.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This writ of error is prosecuted to reverse a decree of the circuit court of St. Clair county, dismissing, on the hearing, a bill in equity filed by the plaintiff in error, against the defendants in error. The object of the bill is to subject an undivided half of the estate of George Heberer, after the payment of debts, to an alleged trust.

The facts disclosed by the bill and established by the proofs are, in substance, these: In the year 1867, and prior thereto, George Heberer, and his wife, Sarah, were living in Belleville, St. Clair county. George was then the owner of property, real and personal, to the amount of about $20,000. Sarah was a widow, and the owner of some property, when George married her. He had nothing, though he proved to be a quite thrifty, successful business man. Neither of them had any children or descendants of children. On the 5th day of November, 1867, George Heberer executed and delivered to John M. Stolberg the following instrument:

“Know all men by these presents, That I, George Heberer, of Belleville, St. Clair county, Illinois, for and in consideration of the love and affection which I bear to my wife, Sarah Heberer, and to her relations, and also in the sum of one dollar to me paid by John M. Stolberg, trustee, for the purpose hereinafter set forth, at and before the ensealing and delivery hereof, the receipt whereof I do hereby acknowledge, have given, granted, released and confirmed, and by these presents do give, grant, release and confirm, unto the said John M. Stolberg, trustee, the undivided half part (½) of my real and personal estate, claims, money and demands, which I may leave at the time of my death, after the payment of all my just debts. To have and to hold the said undivided half of my real and personal estate, money, claims and demands which I may leave at the time of my death, after the payment of my just debts, in trust for the heirs of my wife, the said Sarah Heberer: Provided, however, if I, the said George Heberer, should die before my wife, the said Sarah Heberer, then and in that case this deed is to be null and void, and of no effect: And provided, also, that I hereby reserve to myself the absolute and free control and disposal of all my real and personal estate, claim, money and demands during my lifetime.
“In witness whereof, I, the said George Heberer, have hereunto set my hand and seal, this the 5th day of November, A. D. 1867.
George Heberer. [seal.]”

Stolberg at no time ever exercised, or attempted to exercise, as trustee or otherwise, any authority or control over the property owned by Heberer at the date of the instrument or which he subsequently acquired, and the evidence shows that Heberer continued to exercise the same dominion and control over it after the making of the instrument that he did before. Thus, on the 26th of February, 1868, Heberer and his wife executed a deed for lot 46, on Richland street, in Belleville, to John B. Willie, which was owned by Heberer at the time of the conveyance to Stolberg, the consideration, as expressed in the deed, being $3350. Shortly after the conveyance to Stolberg, Heberer and his wife moved from Belleville to Freeburg, a village in the same county, where they lived together up to the time of her death, which occurred on the 1st day of September, 1878. She died intestate, leaving the following nephews and nieces as her next of kin, and, with the exception of her husband, her only heirs-at-law, namely: Maria Gotshall, Pauline, Louis and Christopher Wiegand, Maria Westenberger, and Adam Schrodt, defendants in error, and Adam Both, plaintiff in error. About three months after her death, George Heberer married Louisa Krampert, now Louisa Michalis. On the 24th day of August, 1885, George departed this life, testate. By his will, which was duly admitted to probate, he gave to his wife his entire estate, with the exception of two small legacies, amounting to $55 only, and nominated her as his executrix. On the 15th day of December, 1885, his widow intermarried with the defendant in error Louis Michalis. It appears that of the personal assets belonging to the estate, there is now on hand $6841.18. Also the following real estate: Lot 29, Abend’s third addition to Belleville, valued at $1500, and lot 11, village of Freeburg, valued at $1200.

The theory of plaintiff in error is, that by virtue of Heberer’s deed to Stolberg, a present interest in all the former’s property, real and personal, passed at once, upon its delivery to the latter, to be held by him for the use of Mrs. Heberer’s heirs, to take effect in possession upon Heberer’s decease. It is clear enough, that unless this view can be maintained the court below very properly dismissed the bill. There seem to us, however, insuperable objections to the theory of the bill, which counsel for the heirs of Mrs. Heberer have not so much as alluded to. The instrument, it will be observed, does not, as counsel assume, purport to convey an undivided half of the property which he then owned, but, on the contrary, only that which he might “have at the time of his death, after the payment of all his just debts.” What portion of the effects he then owned, if, indeed, any at all would be on hand at the time of his death and thus brought within the terms of the grant, was, at that time, as is manifest, a matter of pure conjecture. This being so, it is clear that no present estate or interest in the property then owned by him could have passed by this deed, and it therefore follows, as a legal sequence, that the instrument in question, considered as a conveyance, was and is simply void. This conclusion rests upon the fundamental principle that a deed takes effect upon its delivery, if at all. (Cline et al. v. Jones et al. 111 Ill. 563.) Had the instrument in question been a will, there would have been no difficulty in the case, for a will speaks only from the death of the testator, and operates on property then on hand.

Suppose, however, it be assumed, for the purposes of the argument, that the legal estate in the property passed, by virtue of the deed in question, to Stolberg upon its delivery, as is claimed by counsel, could the trust theory of the bill be maintained ? It is not perceived how it could be, so far as the real estate is concerned. As respects it, the deed clearly does not contemplate a trust of any kind, notwithstanding the term “trust” is used- in it. It will be noted that no act or duty to be performed by Stolberg, in respect to the property, is enjoined or pointed out. Leaving out of view the objection stated, it is simply a conveyance to one person in trust for others, and in this respect presents the clear case of an executed use instead of a trust. It is a familiar rule, that where a conveyance is made, either for life or in fee, to one person for the use of another, the latter will take, under the Statute of Uses, the legal estate. The same construction follows where the word “trust” is used, instead of the word “use.” Thus, by a conveyance to A in trust for B, the latter takes both the legal and equitable estate, and A takes nothing. If the instrument under consideration had simply conveyed a specifically described piece of land to Stolberg in trust for the heirs of Mrs. Heberer, all the other provisions of it remaining as they are, Heberer would have taken an estate for life, by way of resulting use, and the heirs of Mrs. Heberer, upon his decease, would have taken the legal as well as equitable estate in remainder expectant upon the determination of his life estate. This being so, their remedy would be at law, and not in equity. The hypothetical case here put, and the observations made upon it, must be understood as a mere argument to show that in no event, so far as the real estate is concerned, can the present bill be maintained upon the theory that the property sought to be recovered is a trust estate.

It is urged by counsel, however, that conceding the deed to be void as a conveyance, it may nevertheless be given effect as a declaration of trust. It is unquestionably true, that where one, for a valuable consideration-, attempts to make a conveyance of property to another, and by some casualty or inadvertence the instrument is defective and inoperative as a conveyance, a court of equity will, in a proper case, treat the instrument as a declaration of trust, or as a contract for a conveyance, as the circumstances may require. But this doctrine has no application to a case like the present, where an essential element of the trust is wanting. An existing property right in or to some distinct subject matter is essential to the existence of every trust, and any instrument, however perfect otherwise, which fails to disclose this, can not properly be established as a • declaration of trust. We regard the instrument under consideration in the nature of a testamentary provision, and it was so treated by all the parties. The so-called trustee never attempted to exercise any control over the property of Heberer, and; as we have already seen, the latter exercised the same dominion over it after the conveyance that he did before it. Of course, the instrument can not be given effect as a testamentary disposition, for the reason it has not been so executed as to entitle it to probate, and give it effect as such. Badgley v. Votrain, 68 Ill. 25.

The complainant set up in the bill an alleged agreement between Heberer and his wife, by which the latter was induced to relinquish her right of dower in certain real estate belonging to her husband, as the consideration for the deed to Stolberg. The proofs wholly fail to sustain the bill in this respect. But in the view we take of the case, the proof of that charge would not have changed the result. The authorities cited by counsel for plaintiff in error we do not regard as in point.

The decree will be affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Shope

license: Public Domain

text:
    The People ex rel. Peter Greenwood et al. v. The Board of Supervisors of Madison County.

      Filed at Mt. Vernon June 16, 1888.

    1. Jury—challenge to the array—grounds therefor—presumption. Although a jury may have been irregularly obtained, a challenge to the array will not be sustained where it is not shown that a positive injury has resulted in consequence of the refusal of the court to quash the panel.
    2. On objection to the array of jurors in a case, the clerk testified that the panel was obtained upon an order of the judge made on a preceding day, directing the issuance of a special venire for twenty-four men, and that upon that order he issued the writ to the sheriff: Held, that the evidence did not rebut the presumption that the clerk performed his duty by repairing to the county clerk’s office, and there drawing the names of the jurors.
    3. Practice—directing what the verdict shall be. Where there is not sufficient evidence to support or justify a verdict for the plaintiff, it is correct practice to instruct the jury to find a verdict for the defendant.
    4. Mandamus—of the petition—its requisites. The statute doing away with the alternative writ of mandamus, and requiring the defendant to answer, plead or demur to the petition, has not modified or dispensed with the common law requirement resting on the relator to set forth and show a clear right to the relief demanded. It must appear from the petition that the defendant is under a legal obligation to do and perform the act sought to be coerced, and every material fact to show such legal duty must be averred.
    5. Same—of the burden of proof. Where the petition of the commissioners of highways for a mandamus against the county board to compel a county appropriation for the construction of a bridge, makes a prima facie case, and issues of fact are formed thereon, it becomes necessary for the relators to maintain, by competent testimony, the truth of every material averment, taking upon themselves the burden that rests upon the plaintiff in an ordinary action at law, when the averments of the declaration are put in issue.
    6. Commissioners or highways—record of proceedings. The commissioners of highways are a quasi corporation, powerless to act except together and as a body, and they are required by law to keep a record of their proceedings at all meetings.
    7. Evidence—parol evidence—as to matters which ought to be of record. Where the law requires records of proceedings to be kept, they are the only lawful evidence of the action to which they refer, and such record can not be contradicted, aided or supplemented by parol.
    8. Same—as to proceedings of commissioners of highways. On a proceeding by mandamus by the commissioners of highways against the county board, to compel an appropriation in aid of the construction of a bridge, the relators offered to prove, by parol, that at a certain meeting they determined to build the bridge, that it was necessary, that its construction would be an unreasonable burden on the town, and that a tax was levied by them to raise half the estimated cost. They also offered parol evidence in respect to their estimate of the sum needed for making and repairing bridges for the year, including the cost of the proposed new bridge; that an estimate of the cost of such bridge was procured from the county surveyor, of which no record was kept; of the rate per cent of the levy for bridge purposes, and of the amount collected and turned over to the commissioners, and what part of it was for the new bridge,—to all of which the court sustained objections: Held, that the ruling was correct, as all the facts offered to be proved were or ought to have appeared of record.
    9. The same rules of law apply to the commissioners of highways, in respect of their corporate action, as are applied to other municipal corporations; and the record of their action required by law to be made and kept, becomes the best, and if in existence and capable of being produced, the only evidence thereof.
    10. Bridges—county aid-prerequisites. Commissioners of highways, to avail of the provisions of section 110 of the Road and Bridge act, giving them a right to demand county aid in the construction or repair of a bridge, must make it appear, first, that a necessity exists for its construction or repair; second, that its construction or repair will be an unreasonable burden on their town; third, that the cost thereof will exceed such sum as can be raised in any one year by ordinary taxation for bridge purposes in the town; and fourth, that one-half the necessary funds therefor has been provided by the town. These facts are jurisdictional, and without their existence and concurrence the county board has no power to appropriate funds from the county treasury under this section.
    11. Same—who to ascertain and determine the existence of these jurisdictional facts. The determination of these jurisdictional facts is, by the statute, left to the commissioners of highways. They must, when acting together as a board, determine that the construction or repair of a bridge in their town is necessary; that its construction or repair would be an unreasonable burden on the town; that the cost thereof will exceed the sum that can be raised in one year by ordinary taxation for bridge purposes, and that they, by means within their control, have provided one-half of the necessary expense thereof. Of this determination they must keep a record.' It can not be shown by parol evidence.
    12. Same—granting partial aid, as an estoppel to refuse the residue. The fact that a county board, when applied to by the commissioners of highway's for an appropriation of one-half the cost of a bridge, makes an appropriation of a less sum than demanded, can not be held to estop the board from refusing the balance, when it appears that it was under no legal obligation to appropriate any sum whatever.
    13. Same—evidence of requisite facts. The fact that the county board was petitioned for county aid may be shown by the petition itself, but such petition, though made and signed by' the commissioners, can not be regarded as proof of the facts therein recited, so as to supply the absence or take the place of the record of the commissioners’ action required by law to be kept.
    Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of Madison county; the Hon. Amos Watts, Judge, presiding.
    Mr. Alex. W. Hope, for the appellants:
    The court erred in refusing the motion to quash the panel of jurors because they were not drawn as required by law. Rev. Stat. chap. 78, secs. 8, 12; Lincoln v. Stowell, 73 Ill. 246; Insurance Co. v. Nelson, 75 id. 548.
    Parol evidence was not competent to contradict the facts stated on the record, but was admissible to show facts not stated therein, unless the statute requires all matters to appear of record, and makes the record the only evidence. Dillon on Mun. Corp. secs. 237, 238; McManus v. McDonough, 107 Ill. 96.
    The records of highway commissioners are ex parte. They are not judicial records, or kept by men of the same degree of ability. The records of the justice of the peace are not required to be kept with technical precision. Madison County
      v. Rutz, 63 Ill. 65; Bliss v. Harris, 70 id. 343; Brennan v. Shinkle, 89 id. 604.
    The objection that the petition to the county board is defective, came too late on tide trial. The time to object to the form of the petition was when it was presented to the board. The doctrine of estoppel is applicable to municipal corporations. Holmes v. City of Mattoon, 111 Ill. 30; Logan County v. City of Lincoln, 81 id. 156; Bank v. Bowen, 80 id. 541.
    In view of the conduct and acts of the board of supervisors toward the petition presented by the highway commissioners to the board, in receiving it and acting upon it, should be considered a waiver of any defects, especially when the rights of the public are concerned, as they are in the present case. And it would be unjust to permit them to object for the first time upon the trial of this case, when it involves no question of meritorious defense. Bigelow on Estoppel, (3d ed.) pp. 503, 504, and authorities in note, and p. 506, and authorities in note.
    The Appellate Court erred in its decision that the instruction given by the circuit court to the jury, to find for the defendants, was a proper instruction. This instruction to find for the defendants is tested by the same rule as a demurrer to the evidence. A demurrer to the evidence not only admits the facts stated therein, but every fact the evidence tends to prove, and every conclusion that the jury might fairly or reasonably infer from the evidence. Philips v, Dickerson, 85 Ill. 11; Pennsylvania Co. v. Conlan, 101 id. 93.
    The following authorities establish the law of this case: People v. Supervisors, 100 Ill. 640; People v. McHenry County, 110 id. 93; Town of New Boston v. Supervisors, id. 197; Supervisors v. People, id. 511; Supervisors v. People, id. 577.
    It is an error, in rendering judgment against a municipal corporation, to award an execution against such corporation. Kinmundy v. Mahan, 72 Ill. 462; City of Bloomington v. Brokaw, 77 id. 194; City of Elgin v. Eaton, 83 id. 535; Village

      of Kansas v. Juntgen, 84 id. 360; City of Paris v. Cracraft, 85 id. 294; City of Morrison v. Hinkson, 87 id. 587.
    Messrs. Dale & Bradshaw, and Mr. George F. McNulty, for the appellees:
    The right of the party claiming the writ of mandamus must be clear and certain, absolute and positive, perfect and complete. This right must be clearly established. High on Ex. Legal Rem. secs. 9-550; People v. Salomon, 46 Ill. 415; Railroad Co. v. County Clerk, 74 id. 27; People v. Village of Crotty, 93 id. 180; County of St. Clair v. People, 85 id. 896; People v. Davis, 93 id. 133; Supervisors v. People, 110 id. 577.
    . Every material fact necessary to show the plain duty of the respondent to act in the premises, must be set forth by the party seeking to compel the performance of the act; and in this case every material fact must appear in the petition of the highway commissioners to the county board, and the action of the board is rightly based on the facts stated in the petition presented to them. Hall v. People, 57 Ill. 316; People v. City of Elgin, 66 id. 506; People v. Village of Crotty, 93 id. 180; Supervisors v. People, 16 Bradw. 305.
    Where the statute provides that a municipal corporation shall keep correct minutes of its proceedings, its corporate acts can only be shown by such records. Oral evidence is not sufficient. In this case, the action of the commissioners being in issue, had to be proved. 1 Dillon on Mun. Corp. secs. 229, 247, 237, 238; McHaney v. County of Marion, 77 Ill. 488; Spangler v. Jacoby, 14 id. 297; Steckart v. East Saginaw, 22 Mich. 104; Stevenson v. Bay City; 26 id. 44; Mayhew v. District Gay Head, 13 Allen, 129; Morrison v. Lawrence, 98 Mass. 219; Hunneman v. Fire District, 37 Vt. 40; Board v. Chitwood, 8 Ind. 504; Louisville v. McKegney, 7 Bush, 652; Jordan v. School Directors, 38 Me. 169.

    Even where the law regarding the keeping of minutes of the proceedings is merely directory, if any minutes at all are kept they can not be added to by parol evidence. In such cases it is only where no minutes at all are made, that parol evidence is admissible. Dillon on Mun. Corp. sec. 237, note, citing Taylor v. Henry, 2 Pick. 403.
    The court did not err in instructing the jury to find for the defendants, because the petitioners failed to prove, legally, that they ever decided to build a bridge or had raised one-half of the funds. When the verdict, if given, must be set aside, the court should instruct for the defendant. The evidence being excluded as improper proof, could not tend to prove anything. Simmons v. Railroad Co. 110 Ill. 340; Railway Co. v. O’Conner, 115 id. 261.
    The court did not err in denying the motion to quash the array of jurors. A court has a right to order a special venire. Stone v. People, 2 Scam. 326; Blemer v. People, 76 id. 270; Mackin v. People, 115 id. 315.
    The court did not err in taxing costs against the petitioners. Rev. Stat. (Starr & Curtis,) chap. 87, sec. 5, p. 1588; Pike County v. People, 11 Ill. 202.
   Mr. Justice Shope

delivered the opinion of the Court:

Various errors are assigned upon this record. The first arises upon the ruling of the circuit court in respect to the jury to which the issues were submitted. Appellants objected to the whole array of jurors, because they had not been drawn by the clerk of the court, as required by the statute, but had been selected by the sheriff, and moved to quash the venire, and which motion was overruled. By agreement of parties, the statement of the clerk as to the manner in which the panel of jurors was obtained, was received. From the clerk’s statement it appears the panel was obtained upon an order of the circuit judge, made the preceding Wednesday, ordering the issuance of a special venire for twenty-four men, and upon that order the clerk issued the writ to the sheriff; and this is all the evidence disclosed by the record.

The objection is met by two sufficient answers: First, if it be assumed that the jury was obtained irregularly, a challenge to the array will not be sustained, where it is not also shown that a positive injury has been sustained in consequence of the refusal of the court to quash the panel. (Wilhelm v. The People, 72 Ill. 468, citing Mapes v. The People, 69 id. 523.) There is no pretense, here, of injury to appellants, or that the trial was not fair. What the jury did in this case, as will be seen hereafter, was to return a verdict as directed by the court. The issues were taken from the jury entirely, and they made no independent finding whatever. And second, there is nothing in this record, save the language of the motion itself, that shows, or tends to show, that every requirement of the statute as to the drawing of jurors was not observed. The evidence is, that the panel was obtained upon an order of the judge of the court directing the clerk to issue a special venire to the sheriff for a given number of jurymen. Non constat, the clerk repaired, as by law required, to the office of the county clerk, and there drew the twenty-four names from the proper box, and inserted those names in the venire issued to the sheriff. Presumptively the clerk did his duty, and that presumption appellants should have overcome by proof. The record contains no proof whatever tending to impeach the regularity of the panel or the qualifications of the jurors.

The main controversy, however, arises upon the instruction given by the court, directing a verdict for the defendant. As the case stood at the time the instruction was given, it was entirely competent for the court, and correct practice, to direct a verdict for the defendant, for the reason that there was not before the jury sufficient evidence to support a verdict for the relators. But back of this instruction lay the action of the court in rejecting the evidence offered by the relators. If the offered evidence was competent, and tended to sustain the issues on behalf of the relators, its rejection was erroneous and the instruction improperly given.

Under the practice prevailing prior to the present statute relating to mandamus, the alternative writ became the foundation of all subsequent proceedings in the case, answering the same purposes as the declaration in ordinary actions. This being so, it was necessary that the alternative writ should show upon its face a clear right in the relator to the relief demanded. Therein the relator was required to distinctly set forth all the material facts on which he relied, so that the same could be admitted or traversed. (Canal Trustees v. The People, 12 Ill. 248.) The statute referred to, (Starr & Curtis, 1584,) while it has changed the practice, dispensing with the issuance of the alternative writ, and requiring the defendant to answer, plead or demur to the petition, has not modified or dispensed with the common law requirement resting upon the relator, to set forth and show a clear and indubitable right to the relief demanded. In every case, to entitle the relator to relief, it must appear that the defendant is under a legal obligation to do and perform the act required, and every material fact necessary to show such legal duty must be averred in the petition. Hall v. The People ex rel. 57 Ill. 307; The People v. City of Elgin, 66 id. 507; The People ex rel. v. Village of Crotty, 93 id. 180.

The act in relation to roads and bridges, under township organization, approved May 28, 1879, and in force July 1, 1879, (Laws 1879, p. 257,) is broad and comprehensive in its terms and provisions, embracing within its scope the establishment, alteration, construction, repair, maintenance and supervision of roads and bridges within organized towns. The immediate control and supervision of roads and bridges in a town was vested in three commissioners of highways, who were required to meet at a designated time and place, and to organize by choosing one of their number treasurer, and thereafter to fix their own time and place of meeting; and by the 13th section of the act, the commissioners were required to “keep a correct record of their proceedings at all meetings.” Although reference is here made to the particular act named, in prior as also in subsequent acts, similar provisions appear and like powers were vested in and duties imposed upon these boards of highway commissioners, and they are now, and were under this particular act, regarded and held to be a' quasi corporation, powerless to act, except together and as a body, (Commissioners of Highways v. Baumgarten, 41 Ill. 254, and McManus v. McDonough, 107 id. 95,) and of which action, as we have seen, under the act of 1879, they were required to “keep a correct record.” It seems clear that the same rules of law are to be applied to this corporate body in respect of its corporate action, and the evidence of such action, as are applied to other municipal corporations, and that the record of its action required by law to be made and kept, becomes the best, and if in existence and capable of being produced, the only evidence thereof.

The 110th section of the act of 1879 provided under what circumstances a moiety of the expense of the construction of a bridge in any town might be borne by the county. To avail of such county aid, and as the basis of any action to that end by the county authorities, it must appear, first, that a necessity existed for the construction or repair of such bridge; second, its construction or repair must be an unreasonable burden on the town; third, the cost must exceed such sum as could be raised in one year by ordinary taxation for bridge purposes in the town; and fourth, that one-half the necessary funds therefor had been provided by the town. These facts are, by the law, made jurisdictional, and without their existence and concurrence the county board was without power to appropriate money from the county treasury for the purpose stated. The determination of these jurisdictional facts is, by the act, left to the commissioners of highways. Acting as, alone; they had the power to act, together and as a board, at a meeting of the board they were to determine that the construction or repair of a bridge‘within their territorial jurisdiction was necessary; that its construction or repair would be an unreasonable burden on the town; that the cost thereof would exceed the sum that could have been raised in one year by ordinary taxation for bridge purposes in the town, and that they, by means under their control, had provided for one-half the necessary expense, of which determination they were required by the act to make and keep a record; and this same section of the act (section 110) made it the imperative duty of the county board, whenever the commissioners of highways of a town brought themselves within the provisions of the act, to appropriate, out of the county treasury, one-half the cost of the proposed construction or repair. In the case under consideration, the commissioners of highways of Wood River township sought to avail of the provisions of the act referred to, and if the case made by them petition and proofs was such as to bring them within the law, the writ should have been awarded.

By the averments of relators’ petition a prima facie case was made. Issue being taken thereon, it became necessary for relators to maintain, by competent testimony, the truth of every material averment, taking upon themselves the same burden that rests upon the plaintiff in an ordinary action at law, where the averments of the declaration are put in issue. To meet this requirement, the relators produced, as a witness, the town clerk of Wood River, who was also the clerk of the commissioners of highways for the year 1882, who testified that the commissioners held meetings on April 19, August 19 and September 2, 1882; and on his being asked if the commissioners of highways of the town did not determine to build a bridge, objection-was interposed by'the defendants, and sustained by the court. This ruling of the circuit court was unquestionably correct. As we have before stated, the determination by the commissioners of highways that a necessity existed for the construction or repair of a bridge, as a basis for an application to the county board for county aid under the statute, was an exercise of a corporate power vested in the commissioners of highways, which could only be at a meeting of the commissioners, and be shown by the record required by the law to be made and kept. Before the county board could be legally moved in the matter, or any legal duty be cast upon them, the commissioners must have determined that such necessity existed, and have preserved the evidence of that fact in their record. In the proceeding, then, before the circuit court, the corporation (the commissioners of highways) could only speak by their record, unaided by parol testimony.

The principles announced seem to be well supported by authority. Where the law requires records to be kept, they are the only lawful evidence of the action to which they refer, and such record can not be contradicted or supplemented by parol. The whole policy of the law would be defeated if they could rest partly in writing and partly in parol. Stevenson v. Bay City, 26 Mich. 44; Hall v. The People, 21 id. 456; Morrison v. City of Lawrence, 98 Mass. 219; Hanneman v. Fire District, 37 Vt. 40; Mayhew v. District of Gay Head, 13 Allen, 129. So where county commissioners and township trustees were required by law to keep a true record of their proceedings, it was held that they could “only speak by their record” when legally assembled. (Commissioners of Fayette County v. Chitwood, 8 Ind. 504.) And where school districts are required by law to keep an account of their proceedings by a sworn clerk, such proceedings can only be proved by the record. Offered parol proof was rejected. (Jordan v. School District, 38 Maine, 164.) And in respect of the county court, in counties not under township organization, constituting, in such counties, the county board having the management and control of the fiscal affairs of the county, it was held that in matters of allowance or rejection of claims against the county, the records of the court are the only admissible evidence of their official acts. McHaney v. Marion County, 77 Ill. 488.

The relators read in evidence the record of the commissioners of highways, of August 19, 1882, as follows: “The amount of taxes was fixed at forty (40) cents for bridges, and twenty (20) cents for roads. For making and repairing bridges, $6000.40; for other purposes, $2100.01,—total, $8100.41. Moved to petition county for aid in building bridge over Wood river,—carried;” and offered, in that connection, to prove by their clerk, that at the meeting on August 19 it was determined to build the particular bridge; that it'was necessary it should be built; that its construction would be an unreasonable burden on the township; that a tax was levied by the commissioners for the purpose of providing one-half the estimated cost thereof; that the estimated cost was $5000, and that the memorandum on the records was the result of the determination and action of the commissioners. The court sustained an objection to the offered testimony. The offered testimony was in the highest sense material, and had it been embodied in the record of the commissioners, it would have tended to establish every material averment of the petition. But the imperfect record of the determination and action of the commissioners could not thus be cured and aided by parol. Considerations of the gravest character require us to hold, that where the law has required a record to be kept of corporate action by any of the agencies of the State, the record alone can he resorted to to establish such action, in all collateral proceedings.

Further offers of proof were made by relators, in respect to the estimate by the. commissioners of the sum needed for making and repairing bridges for the year 1882, including one-half the cost of this new bridge; that an estimate of the cost of this bridge was procured from the county surveyor, (of which, however, no record was made,) of the rate per cent of the levy for bridge purposes, of the amount collected and turned over to the commissioners, and what part of it was for this new bridge,—to all of which objection was sustained. As will be seen, every material fact offered to be proved by parol should have appeared in the record of the action of the commissioners, or was capable of proof by the public records of the county, and the ruling of the circuit court was correct.

Relators did read in evidence their petition to the county board asking for county aid, and also the record of the action of the county board thereon, from which it appeared an allowance from the county treasury was made of $1000. The fact that the county board was petitioned for county aid, might, no doubt, be shown by the petition itself, but such petition, though made and signed by the commissioners, can not be regarded as proof of the facts recited therein, so as to supply the absence or take the place of the record of the action of the commissioners, required by the law to be kept. But the petition itself shows upon its face that at least one of the conditions precedent, provision made by the town for one-half of the cost of the proposed bridge,—did not exist. One-half the cost was $2500, and only $2200 of the amount raised was, it appears,' available for this bridge. When, therefore, the court was asked to give the instruction directing a verdict for the defendant, it is manifest there was no evidence authorizing a verdict for the petitioner. The most that can be said of the record of the commissioners, made at their meeting August 19, is, that it tended to show that the commissioners had levied a tax of forty cents for bridge purposes and twenty cents for roads, the sum raised thereby, and a proposition to “petition the county for aid in building bridge over Wood river.” None of the facts necessary to authorize them to demand aid from the county are shown thereby to have been found or determined by the commissioners. It was, however, shown that the county board appropriated $1000 for that purpose, and it is contended that the county is estopped thereby to question the validity and sufficiency of the action of said commissioners of highways. Unless the county board, by its action in making the appropriation of $1000 in a case where, under the law, they were not required or authorized to make any appropriation whatever, is estopped from afterwards refusing to make a further unlawful appropriation of $1500, there was no competent evidence before the jury proving or tending to prove the several material averments of relators’ petition.

That the action of the county board in making the 01000 appropriation was wholly unauthorized by the statute under consideration, because of the non-existence of one or more of the jurisdictional facts, seems clear; and while it is true that the county board is vested with the control and management of the fiscal affairs of the county, its powers are such, only, as are given it by the law. Within the scope of the powers granted or necessarily implied, it may act. But we can not lend our sanction to the doctrine that an illegal and unauthorized exercise of power by a municipal corporation can he made the basis for compelling a repetition of such illegal act. There is no pretense that this appropriation was made under section 58, chapter 34, of the Revised Statutes, (Starr & Curtis, 662); but if it was, it would form no basis -for the application of the doctrine of estoppel. The doctrine here announced is not at all inconsistent with former rulings of this court, that in a proper case the doctrine of estoppel may be invoked against municipal corporations. This case presents none of the elements necessary to an application of the doctrine of estoppel. ’

The court properly gave the instruction complained of. The relators had wholly failed to support, by competent testimony, the jurisdictional facts necessary to the maintenance of their petition. There were no controverted questions of fact to be passed upon and settled by the jury, and no testimony upon which a verdict for the relators could have rested, had one been returned. In such case, the practice is well settled that the court.may direct a verdict for the defendant.

The modification, by the Appellate Court, of the judgment of the circuit court in respect to costs, was clearly correct. The proceeding was begun and conducted by appellants, not as individuals, but in their official character of commissioners of highways, and appellee’s costs, for which it was entitled to judgment, were properly made a charge upon relators in the capacity in which they sued.

Perceiving no error in the judgment of the Appellate Court, it is affirmed.

Judgment affirmed.


author: Mr. Justice Scott

text:
    John Feister v. The People of the State of Illinois.

      Filed at Ottawa June 16, 1888.

    Criminal law—attempt to commit burglary—sufficiency of the evidence. On the trial of one for an attempt to commit a burglary, it appeared that the building sought to be entered was occupied as a saloon; that on Sunday morning, about eleven o’clock, the defendant attempted to enter the room through a back window, the sash of which had been left down; that about a half hour before, he had been in the saloon and got liquor to drink, and that when caught in the act of trying to get through the window, he said he wanted whisky. There was a back door to the saloon, through which persons entered on Sunday. The defendant testified that he went to the saloon to get another drink, and found the back door locked; that he thought there were some persons in who refused to admit him or answer him; that he then went to the window and looked over the sash, which was down, and that his only object was to get whisky. It also appeared he was under the influence of liquor: Held, that the evidence was not sufficient to justify a conviction.
    Writ of Error to the Circuit Court of Iroquois county; the Hon. Alfred Sample, Judge, presiding.
    Messrs. Payson & Raymond, for the plaintiff in error.
    Mr. George Hunt, Attorney General, and Mr. R. W. Hilscher, State’s Attorney, for the People.
   Mr. Justice Scott

delivered the opinion of the Court:

At the November term, 1887, of the circuit court of Iroquois county, an indictment was presented in open court, against John Feister, charging him with an attempt to commit burglary. It is averred the accused attempted to break into the storehouse of one George Laub, with intent to steal the goods of the said Laub kept in such building. On the trial defendant was found guilty, and the punishment he should suffer was fixed by the verdict of the jury at one year in the penitentiary. A motion for a new trial was overruled, and the court pronounced judgment on the verdict. It is to reverse that judgment defendant brings the case to this court on error.

Numerous errors are assigned on the record, but in the view taken it will only be necessary to consider the sixth of the series, viz., the verdict of the jury is against the law and the evidence.

The storehouse it is alleged defendant attempted to break and enter, was occupied by the prosecuting witness, Laub, as a saloon, in which he kept for sale the usual stock of liquors. It is situated in the midst of the village or little city of Watseka. That which was done by accused was done on Sunday morning, about eleven o’clock, on a day in the month of May, and at an hour when it might be supposed persons were passing and repassing. The witness Williams had been in the saloon that morning, and he, with another person, had been scrubbing the room, and after they got through, before leaving, as they did shortly after finishing their work, they “left the top window down to air it out.” That was a window in the rear of the building. There was also a door in the rear end of the room, through which, the evidence tends to show, persons who desired to visit the saloon on Sunday entered. Defendant says he had been at the saloon, and entered by that door on that morning and obtained some whisky. When Williams left the saloon he went out at the front door, but on his return, shortly thereafter, he went down the alley to the rear of the saloon. It was there he saw defendant “leaning through the top of the window. His body was about half-way over. The screen was torn off. * * * I asked him what he was doing. He said he wanted whisky.” This is the substance of° all that is alleged by the prosecution against defendant. The accused was a witness in his own behalf, and the explanation he gives of his conduct is as follows: “Remember of being at the rear end of his saloon on the Sunday in question. Had been there before 'on that morning, and had been in the saloon. Albert Williams, Trammel, and two or three more, were there. I got liquor there that morning. It was about an hour and a half after this that I went back the second time. Went back there for the purpose of getting a drink. I went back there and looked through the. key-hole. I thought they were in there and that they were playing ‘Shenanagen’ on me. I went to the window and looked over. It was down at the top. When I was spoken to I said, ‘I want whisky.’ I rapped on the door when I went there. I says, ‘Are you in ?’ and nobody answered me. I thought they were in the room and would not let me in. Had no other object or purpose there, only to see if some one was in there. I only wanted to see if somebody was there.”

While 'defendant’s conduct is not free from censure, the evidence is hardly sufficient to show he attempted to commit a burglary. The time, place and all the circumstances are inconsistent with that theory of the case. The accused had purchased whisky at the saloon that morning, and had drank it, and no doubt he was much under its influence. It had inflamed his desire for more, and he returned with a view to obtain it. That is a reasonable explanation of his conduct. It may be true, as he relates in his testimony, he thought there were persons in the saloon, and that they would not open it to him. Conceding that to be all he did, of course it falls short of proving him guilty of the attempt to commit burglary, and the judgment is warranted neither by the law nor the evidence.

The judgment will be reversed, and the cause remanded.

Judgment reversed.


author: Per Curiam :

text:
    Richard Hughes v. The Au Sable Quarry Company.

      Filed at Ottawa June 16, 1888.

    Practice in the Supreme Court—taking cause for decision, without service or appearance. Errors were assigned upon a very imperfect record, and an order was made taking the cause for decision, without service of process upon the defendant in error, or joinder in error, or appearance of the defendant. The order taking the ease was set aside at the next term, and the cause placed upon the docket, with the understanding that if it was not ready for submission by the term following, it would be stricken from the docket.
    Writ of Error to the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    Mr. S. C. Stough, and Mr. A. W. Bulkley, for the plaintiff in error.
   Per Curiam :

It is evident this cause is in no condition to be submitted for decision. The transcript of the record filed in this court is very imperfect. There is no bill, answer or replication, and no summons, writ of injunction or other process appears in the transcript, as certified by the clerk of the circuit court. Errors have been assigned on the record, such as it is, but there is no joinder in error, or appearance by defendant, or any evidence of service of process upon him. It seems the record was filed in the office of the clerk of this court on the 28th day of February, 1885.

The order taking the cause for decision will be set aside, with direction to place the cause on the docket, with the understanding that unless the cause is ready to be submitted at the next term of this court it will be stricken from the docket.

Order set aside.


text:
    Lida K. Stelle et al. v. George T. Lovejoy.

      Filed at Ottawa June 16, 1888.

    1. Measure of damages—in action on appeal bond. In an action on an appeal bond given on an appeal from a judgment of a justice of the peace, when the appeal is dismissed, the real amount of the recovery sought is the amount of the justice’s judgment, with interest thereon, and costs. The judgment for the penalty of the bond would be satisfied by the payment of that amount.
    2. Appeal bond—discharge by payment of judgment appealed from. Payment of the judgment appealed from, with interest and costs, will discharge the surety’s liability on the appeal bond.
    3. Limitation—of action on appeal bond. An action on an appeal bond given on appeal from a judgment of a justice of the peace, brought to recover the amount of the judgment of the justice, after dismissal of the appeal, is not barred after the lapse of five years from the time an action on the judgment accrued. Whatever may be the limitation as to an action on the judgment, an action on the bond will not be barred until ten years after the cause of action thereon accrued.
    4. The undertaking of a surety upon an appeal bond is not a collateral one, but an absolute covenant that the principal shall pay the judgment appealed from, upon the dismissal of the appeal, with interest and costs, and an action thereon is not barred by any period short of ten years.
    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 P. Altgeld, Judge, presiding.
    Mr. Thomas Dent, and Mr. R. P. Blanchard, for the appellants :
    It is a familiar principle that a statute of limitations shall not be applied to cases not clearly within its provisions. Hazell v. Shelby, 11 Ill. 9.
    Section 16 of the Limitation law provides: “Actions on bonds * * * shall be commenced within ten years.” That section provides for actions on bonds, and consequently such actions are not provided for by section 15, which, in terms, is applicable to “unwritten contracts, * * * and civil actions not otherwise provided for.”
    If an action on the judgment were barred in five years, an action on the bond would not be, for it is an independent promise under seal, based on a valuable consideration, as well as a security. (3 Parsons on Contracts, 355; Smith v. Whitaker, 11 Ill. 417; Belknap v. Gleason, 11 Conn. *160.) But if action on the judgment were barred, action on the appeal bond would not necessarily be barred, even though the bond were a security only, for, in that view,' it is an additional and higher security, and an action upon it would lie, because statutes of limitation act upon the remedy, merely, not upon the debt. Waltmire v. Westover, 14 N. Y. 16; Angell on Limitations, secs. 7, 73; 2 Parsons on Notes and Bills, 631.
    The appeal bond was as much to give an additional remedy as a replevin bond, as to which see Fahnestock v. Gilham, 77 Ill. 637.
    Mr. Lyman M. Payne, and Messrs. C. C. & C. L. Bonney, for the appellee:
    Action upon a justice’s judgment is barred in five years. Rev. Stat. 1874, chap. 83, sec. 15; Bemis v. Stanley, 93 Ill. 230; Zepp v. Hager, 70 id. 223; Eaton v. Henagan, 17 Bradw. 156.
    A bar that would defeat a recovery on the debt may be interposed to defeat a recovery on the security for such debt. Harris v. Mills, 28 Ill. 44; Pollock v. Maison, 41 id. 516; March v. Mayers, 85 id. 177; Emory v. Keighan, 88 id. 482; Locke v. Caldwell, 91 id. 417.
    Since an appeal bond is to be regarded as a mere security for the payment of the judgment, whatever discharges the judgment discharges also the liability of the obligors on the bond. Andrews v. Scotton, 2 Bland’s Ch. 629; Nat. Bank v. Rogers, 13 Minn. 417; Cass v. Adams, 3 Ohio, 223; Ellis v. Fisher,
      10 La. Ann. 479; Ohio v. Blake, 2 Ohio St. 147; Walton v. United States, 9 Wheat. 651; State v. Conway, 18 Ohio, 234; Cook v. King, 7 Bradw. 549.
    Actions on unwritten contracts, express or implied, or on awards of arbitration, or to recover damages for an injury done to property, real or personal, or to recover the possession of personal property, or damages for the detention or conversion thereof, and all civil actions not otherwise provided for, shall be commenced within five years next after the cause of action accrued. Rev. Stat. 1874, chap. 83, sec. 15.
    Actions on bonds, promissory notes, bills of exchange, written leases, written contracts, or other evidences of indebtedness in writing, shall be commenced within ten years next after the cause of action accrued. Rev. Stat. 1874, chap. 83, sec. 16.
   Mr. Justice Scott

delivered the opinion of the Court:

It appears from an amended declaration, which is the only declaration found in the transcript filed in this court, this suit is by Lida K. Stelle and Edward T. Stelle, administrators of the estate of Leonard Gf. Klinck, deceased, for the use of William H. Sisson, against Hebern Claflin and George T. Lovejoy, and is in debt, upon an appeal bond made by defendants,— the first named as principal and the second as surety,—in the case of Leonard G. Klinck", for the use of William H. Sisson, against defendant Clafiin, on the 23d day of June, 1875. It is recited in the bond, the plaintiff in the action before the justice of the peace had recovered a judgment against defendant Claflin, for the sum of $174, and costs of suit, taxed at $5.95. The obligatory condition in the bond is in the usual statutory form, as follows: “If the said Hebern Claflin shall prosecute his appeal with effect, and shall pay whatever judgment may be rendered against him by said court upon the trial of said appeal, or by consent, or, in case the appeal is dismissed, will pay the judgment rendered against him by said justice, and all costs occasioned by said appeal, then the above obligation to be void, otherwise to remain in full force and effect.” Afterwards, on the 21st day of November, 1876, the appeal secured by the filing of the bond was dismissed by the circuit court, and the plaintiff in that suit recovered a judgment for his costs, in the circuit court, against Claflin, taxed at the sum of $1.50. The breach assigned is, defendant Claflin has not paid the judgment mentioned in the writing obligatory, with the interest and costs, or any part thereof. It does not appear, from anything in the transcript of the record filed in this cause, whether defendant Claflin was served with process or not. There is no default as to him, and no disposition of the case appears to have been made as to him. Only Love-joy, the surety on the bond, appeared and filed pleas. Before the trial, which was before the court, without a jury, all pleas, except the fifth and sixth of the series, were withdrawn, and as to them the court overruled the demurrer that had been filed thereto by plaintiffs. The decision of the court overruling the demurrer to defendant’s pleas raises all the questions of law discussed.

The judgment seems to have been rendered for the penal sum named in the bond, and for damages in the sum of $1.51, and as that is in conformity with the sixth plea, it will only be necessary to consider that plea in the discussion of the case. The substance of that plea is as follows: “Actio non as to plaintiffs’ entire cause of action, except said debt and $1.51 damages, because the supposed justice’s judgment became a cause of action more than five years before commencement of this suit, and a cause of action did not accrue thereon within five years next before commencement of this suit; and so action upon said supposed writing obligatory at the time of the commencement of this suit, and long prior thereto, to-wit, since November 21, 1881, had been barred by force of the statute, except as to said debt and $1.51 damages.”

It will be observed in the outset, that this case does not fall within the principles of any case in this court construing any statute of limitation to be found in the statutes of this State on that subject. The question presented for discussion is new, and is one of first impression. The declaration is upon a sealed instrument,—that is, an appeal bond taken in conformity with the statute. The object is not to recover the penalty for the judgment, for the penalty would, of course, be discharged on the payment of any damages that might be recovered. It is manifest the action is to recover from the surety the amount of the judgment, with interest and costs, which plaintiffs recovered before the justice of the peace against the principal in' the bond. This, the plea alleges, can not be done, for the reason the supposed justice’s judgment became a cause of action more than five years before the commencement of this suit, and a cause of action did not accrue thereon within five years next before the commencement of this suit. It would no doubt be conceded, if this bond, being an instrument under seal, was for the absolute and unconditional payment of a sum of money, an action could be maintained upon it at any time within ten years. The only limitation to the bringing of such an action is that contained in the 16th section of the act entitled “Limitations,” (Rev. Stat. 1874.) The contention on the part of the defense is, that inasmuch as this action upon the bond is simply to recover the amount of the judgment before the justice of the' peace, and as an action on that judgment against the defendant therein,—that is, Hebern Claflin,—was barred by the statute of limitation of five years, before this suit was commenced, it therefore follows, no action on the bond can be maintained against the surety thereon to recover the amount of the judgment described in the bond. Without stopping to inquire whether an action on a judgment recovered before a justice of the peace is barred within five years, under that clause of section 15 of the Limitation act which declares, “all civil actions not otherwise provided for” shall be commenced within five years next after the cause of action accrues, does it follow the action on the bond in this case is, for that reason, also barred by the same provision of the statute ? It is thought a brief discussion will show it is not, but that whatever limitation there may be to such an action is found in section 16 of the Limitation act.

The plea does not allege the judgment obtained before the justice of the peace, against the principal in the. bond, has been paid, or any part of it. Of course, if the judgment had been paid, no action could be maintained on the bond for the same claim. That is upon the principle, a party can not have at law more than one satisfaction of his debt or demand. It therefore appears the judgment still remains unpaid. On a careful study of the plea, it will be seen, it presents an immaterial issue, and is, for that reason, bad. How does it affect defendant’s obligation created by his bond, that Claflin could not be sued on the judgment obtained against him before the justice of the peace ? It might be for reasons other than the statute of limitation of five years, that no action could be maintained on the judgment before the justice of the peace, against the debtor,—as', for instance, after the judgment the debtor might have been discharged in bankruptcy. Would it be insisted such discharge of the judgment debtor would discharge the surety on the appeal bond ? Certainly not. It is simply stating an obvious fact that this defendant, Lovejoy, could not, at any time, have been made liable in an action on the judgment before the justice, against Claflin. It is not claimed that he could, and it is wholly immaterial to him whether the action against Claflin would be barred by the statute of five years. Had Claflin been sued on that judgment, it could not be known he would plead any statute of limitation; and if judgment had gone against him, by default or otherwise, would it be insisted this defendant, Lovejoy, would not be liable on his bond for the original judgment until an action thereon would be barred by the 16th section of the Limitation act ? It is obvious that whatever obligation rests on defendant Lovejoy, arises on the bond executed by him. And what is that obligation ? His covenant is, that in case the appeal was dismissed, (which was done,) his principal would “pay the judgment rendered against” him in the justice’s court, and “all costs occasioned by said appeal.” As has been seen, the breach assigned is, that defendants have not paid the judgment and costs, or any part thereof. That fact is not denied by any plea in the ease. How, then, is this defendant Lovejoy relieved of his obligation created by the bond, to pay the judgment and costs in case the appeal should be dismissed, as was done ? Confessedly, his undertaking in that respect has never-been performed. His covenant in his bond is absolute that his principal will pay the judgment in the justice’s court on the happening of a contingency, viz., the dismissal of the appeal. It is not in any sense a collateral undertaking. It is an original covenant or agreement. It is sought to run a parallel between the covenant in this bond and a mortgage to-secure a debt, where the debt secured is regarded as the principal and the mortgage as a mere incident, and where the debt is paid or barred by any statute of limitation the mortgage fails also. But this can not be done. Here, in this bond, there is an absolute undertaking, the makers will pay the judgment in the justice’s court on the happening of a certain contingency, which did occur. But a mortgage to secure indebtedness seldom contains any covenant that the maker will pay the debt secured, and accordingly it is held, if the debt secured is barred, the mortgage itself fails, and can not thereafter be foreclosed in any mode known to the law. But the rule is different if the mortgage itself contains a covenant for the payment of the money secured, as this court has held in Harris v. Mills, 28 Ill. 44. It was there said: “When such a covenant is found in the mortgage, it being under seal, and the debt to secure which it was given is not, a bar to a recovery of the debt, if of a shorter period than a bar to a sealed instrument, could not affect the remedy on the covenant in the mortgage. If the statutory period necessary to bar an unsealed instrument be of shorter duration than a sealed instrument, a mortgage containing such a covenant given to secure the payment of a debt evidenced by an unsealed note, would be governed by the longer period required to bar a recovery on sealed instruments.”

The principle of that case finds appropriate application to the facts of the case being considered, and would seem to control. It might be conceded, an action on the judgment in the justice’s court would be barred in a shorter period; but that fact “could not affect the remedy on the covenant” in the bond in suit, which contains an absolute obligation that the principal shall pay the judgment, with the costs. It seems to follow, upon principle as well as from authority, that an action on the obligation of defendant Lovejoy to pay the judgment in the justice’s court, against his principal, created, as it was, by a sealed instrument, would not be barred by any period short of that stated in the 16th section of the Limitation act, (which is ten years,) and hence the pleas of five years pleaded constitute no bar to the action.

The judgments of the Superior and Appellate Courts will be reversed, and the cause remanded to the Superior Court,

Judgment reversed.


text:
    William H. Herdman et al. v. Samuel D. Cooper et al.

      Filed at Mt. Vernon June 16, 1888.

      Appeal—whether a freehold is involved—claim of exemption from levy and sale on execution. In bill in chancery to enjoin the sale of a lot levied upon by the sheriff under an execution, on the ground it was, and had been, the homestead of the complainant, and was therefore exempt, no question of freehold is involved, and no appeal or writ of error will lie, to enable the bringing of the case to this court in the first instance.

      Writ of Error to the Circuit Court of Jefferson county; the Hon. Carroll C. Boggs, Judge, presiding.
    Messrs. Pollock & Pollock, for the plaintiffs in error.
    Mr. G. B. Leonard, and Mr. Albert Watson, for the defendants in error.
   Mr. Justice Scott

delivered the opinion of the Court:

This writ of error must he dismissed. It is very clear no freehold is involved in the present litigation, nor, indeed, any other question that would give this court jurisdiction, in the first instance, to hear and determine the cause. It should have been taken to the Appellate Court in the proper district. It is seen the bill was simply to enjoin the sale of a certain lot that had been levied upon by the sheriff by virtue of an execution issued on a judgment in favor of one of defendants and against one of complainants, on the ground it is and has been the homestead of the execution debtor. The only question made is, whether the property is subject to the lien of the judgment, and therefore liable to sale on the execution. It has been so frequently decided by this court that no freehold is directly involved in such cases, no further discussion is necessary. Previous decisions are conclusive upon the point made in this case against the jurisdiction of this court in the first instance. Johns v. Boyd, 117 Ill. 339; Galbraith v. Plasters,. 101 id. 444.

The parties will have leave to withdraw their respective briefs, on each party paying his own costs for filing the same, and plaintiffs in error will have leave to withdraw the transcript of the record and their abstracts, on paying the costs they have made in this court, if they desire to do so, for the purpose of filing the same in the Appellate Court for a writ of error.

The writ of error will be dismissed.

Writ dismissed.


text:
    The Germania Fire Insurance Company v. Sophia L. Hick, for use, etc.

      Filed at Mt. Vernon June 16, 1888.

      1. Insurance—estoppel—as to condition relating to matters known to exist—knowledge of the agent as knowledge of the principal. An insurance company that takes a premium for a policy under conditions in respect to matters known to exist, that would render the policy invalid, will not be permitted to say that it is not a binding contract for that reason; and the company will be held as having the same knowledge of the condition and situation of the property as that possessed by the agent transacting the business for it.
    2. A policy of insurance contained a condition that the contract should be void if the property insured was on leased ground, unless that was specially agreed to in writing in or upon the policy. The agent of the company, when he filled up the application for insurance, knew that the property was so situated, and answered the questions from his own knowledge, and a policy was issued containing no mention of the property being on leased ground: Held, in an action on the policy for a loss, that the company was estopped from setting up the omission to state the condition of the premises in that regard, as a defense.
    3. Practice—refusing unnecessary propositions of law. Where the Court, on the trial of a case without a jury, is asked to hold certain propositions of law to be correct, it will not be bound to hold every proposition asked. It will be sufficient if those which are held to be correct, state every principle of law necessary to be considered in the decision of the case.
    Appeal from the Appellate Court for the Fourth District;—• heard in that court on appeal from the Circuit Court of Gallatin county; the Hon. C. S. Conger, Judge, presiding.
    Messrs. Barnum, Rubens & Ames, for the appellant:
    If the agent of the insurer knew that the building was located on leased ground, then the insurer is estopped, otherwise gross fraud would be perpetrated upon the assured in accepting the premium and delivering a policy which the insurer knew did not assume the risk contemplated. Insurance Co. v. Jack

      son, 83 Ill. 302; Insurance Co. v. Spankneble, 52 id. 53; Insurance Co. v. Wright, 22 id. 474; Insurance Co. v. Wells, 89 id. 82; 1 Wood on Fire Insurance, (2d ed.) sec. 90.
    But if the insurer, or its agent, did not know that fact, hut acted in good faith, and issued and delivered its policy to the assured, or, as in this case, to Bidgeway, the agent of the assured, then, there being no fraud, the contract of the parties will govern, and there is no estoppel. Insurance Co. v. Weary, 4 Bradw. 74.
    Mr. Carl Roedel, for the appellee:
    When the agent of an insurance company has knowledge of the condition and situation of the property insured, and he acts on his own knowledge, the company, by issuing the policy, ratifies his act, and thereby waives its right to insist on the conditions in the policy. Insurance Co. v. Wright, 22 Ill. 473; Insurance Co. v. Fish, 71 id. 622; Wood on Fire Insurance, sec. 162.
   Mr. Justice Scott

delivered the opinion of the Court:

This suit was brought in the circuit court of Gallatin county, by Sophia L. Hick, for the use of Thomas S. Ridgeway, against the Germania Fire Insurance Company. The declaration is in assumpsit on an insurance policy. The risk covered by the policy is a mill, with the plant connected therewith, situated on leased land. One of the conditions contained in the policy upon which the insurance contract would be void “unless specially agreed to in writing in or upon the policy,” is, “the situation of an insured building on leased ground.” The only defense insisted upon is, that the fact the mill was situated on “leased ground” was not agreed to in writing in or on the policy covering the risk in this suit. There is no controversy made as to the fact the mill was situated on “leased ground,” nor is it pretended it was agreed to in writing, on the policy or otherwise, that such was the fact. Admitting these facts, as was done, plaintiff contended, the agent of defendant, who made the application for insurance, knew the true title and situation of the property at the time he filled up the application, and it was as to such alleged knowledge of the agent issue was formed and the trial was had in the circuit court. No other point in the case seems to have been contested.

The record contains very clear and satisfactory evidence the agent did know, when he made the survey, and “answered the questions from his own knowledge,” upon which the policy was written, that the mill property stood on “leased ground.” He states so distinctly. But if it were a controverted question of fact, the finding of that fact by the Appellate Court, as did the trial court, would be conclusive upon this court. Assuming, then, as must be done, the agent of defendant, when he made what he called a “mill survey, ” and answered the questions of his own knowledge, without any inquiry of the assured or the party for whose benefit it was taken, knew the mill was situated on “leased ground,” the law is for plaintiff, and defendant will be estopped to say the policy was void for that reason. An insurance company that knowingly takes a premium for a policy under conditions that would render it invalid, will not be permitted to say it is not a binding contract for that reason. In all such cases the company will be regarded as having the same knowledge of the condition and situation of the property as possessed by the agent transacting the business for it. This view of the law has frequently received the sanction of this court in its previous decisions.

Atlantic Ins. Co. v. Wright, 22 Ill. 462, is a case quite analogous in its facts with the one now before this court, and is, therefore, an authority exactly in point. It was there said: “When the agent of the company undertook to make the survey, the applications and representations of the interest which the assured had in the property, and dispensed with any acts of the assured, and acted upon his own knowledge of the facts, the company ratified his acts by granting the policy. They are bound by his acts, as their agent, and if he was mistaken in his representations to them of the ownership, they have no right to insist upon it as a defense to a recovery.” The doctrine of this case was expressly approved in the subsequent case of Andes Ins. Co. v. Fish, 71 Ill. 620, and its correctness is not now doubted.

By consent of parties the case was tried by the court without the intervention of a jury. At the trial, defendant submitted six propositions, which the court was asked to hold as law applicable to the facts,—four of which the court held to be the law, and the other two (the fourth and fifth of the series) the court refused. That decision of the court is assigned for error. It matters little whether the propositions the court refused contain correct expressions of the law or not. It is sufficient it clearly appears the propositions which the court held to be correct, state every possible principle of law necessary to be considered in the decision of the case. Other propositions were wholly unnecessary, and the court was not bound to hold them to be the law. The same thing may be said of the proposition submitted by plaintiff, and which the court held to be correct, and which states the law with entire accuracy. It is certain, from -the propositions which the court held, that the trial court understood and applied the law to the undisputed facts of the case precisely as this court had declared it to be by its previous decisions, and no mere slight error in holding or refusing other propositions will be regarded as sufficient ground for the reversal of the judgment.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


text:
    Carl Thor et al. v. Ole Oleson et al.

      Filed at Ottawa June 16, 1888.

    1. Evidence—degree of proof required. Before a husband will be held to be a mere trustee for his wife in respect to real estate in his name, so as to subject the same to the payment of her debts, the evidence of that fact must be clear and satisfactory.
    2. Estopped—the general rule. The doctrine of equitable estoppel, in respect of the claim of ownership of land of which one may hold the legal title, proceeds upon the theory that the party is forbidden to set up his legal title because he has so conducted himself in regard to the property that to do so would be contrary to equity and good conscience.
    3. Same—estoppel predicated on omission to give notice of one's rights. And when the foundation of the estoppel insisted upon is silence, and omission to give notice of one’s rights, the party relying thereon must not have had the means of ascertaining the true state of the title by reference to the public records. =
    4. Same—estoppel to claim title as against the creditors of another. The holder of the legal title to real estate, which was of record, was residing with his family upon the premises, a portion, however, being occupied by tenants. The wife of such holder of the legal title was engaged in business on her own account, and owned considerable property in her own right, other than the real estate mentioned. She was allowed by her husband to collect the rents of the premises mentioned as being occupied by tenants, which she applied in her business. She was given credit on the faith of her supposed ownership of the premises. The husband did not give notice to those holding business relations with his wife, and who were giving her credit, that he claimed title to the land. It was held, on bill by creditors of the wife to subject the land to the payment of her debts, the husband was not estopped from asserting title in himself. His title of record and his possession, constituted notice of whatever rights he had.
    5. However, had any one about to give credit to the wife inquired of the husband in possession as to whom the property belonged, and been assured by him that it belonged to her, that would have estopped him forever after from claiming title to it as against such creditors.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.

      Mr. I. K. Boyesen, and Mr. John Lyle King, for the appellants :
    The statements, declarations and conduct of both Martine and Ole Oleson show that the property was treated by them as the property of the former, and he executed mortgages on his property at her request, and against his wish, and gave her the money. Oleson was, from his conduct, estopped from setting up title to the property. Howe v. Cole, 51 N. H. 287 ; Lucas v. Hart, 5 Iowa, 415; Banking Co. v. Duncan, 1 Johns. Ch. 344; Hungerford v. Earle, 2 Vern. 261; Bigelow on Estoppel, 567.
    Where a declaration or admission, by conduct, is so general in its terms, or made under such circumstances as indicate that it was intended to reach and influence third persons 'or the community at large, the estoppel will be carried sufficiently far to protect every one who may be presumed to have acted upon or been governed by it. Hostler v. Hays, 3 Cal. 302 ; Mitchell v. Reed, 9 id. 204; Lewis v. Carstairs, 6 Whart. 307; 5 W. & S. 205; Railway Co. v. Lacey, 3 Y. & J. 80; Gaff v. Railroad Co. 31 Pa. St. 489; Bank v. West, 46 Me. 15; Quirk v. Thomas, 6 Mich. 76.
    Mr. Frank J. Crawford, and Mr. B. F. Richolson, for the appellees:
    In order to an estoppel, it must appear that the party to be estopped is chargeable with fraud, and the doctrine is never applied in doubtful cases. Bigelow on Estoppel, 476; Keith v. Lynch, 19 Bradw. 577.
    Standing by in silence will not debar a man from asserting a title of record, so long as no act is done to mislead the other party. Bigelow on Estoppel, 502; Knouff v. Thompson, 16 Pa. St. 357; Kingman v. Graham, 51 Wis. 232; Packard v. Sears, 6 A. & E. 469; Kuhl v. Jersey City, 8 C. E. Greene, 84.
   Mr. Justice Scott

delivered the opinion of the Court:

The bill in this case is the ordinary creditor’s bill, and was brought by Carl Thor and others, against Ole Oleson and others, to subject the property described, to the payment of certain claims allowed against the estate of Martine Oleson, deceased, who was the wife of defendant Ole Oleson. All the assets belonging to the estate had been exhausted by administration in the regular way, and it was sought to compel payment of the residue of the claims against decedent’s estate out of the real property claimed by her husband.

It is alleged in the bill, the title to the property in controversy was in defendant Ole Oleson, and had been since it was purchased from the former owner, in 1865. It is sought to maintain the bill on two grounds: First, that Martine Oleson, since deceased, was the equitable owner of the property,—that it was purchased by her with her own money, and that the title was taken in the name of her husband, defendant Ole Oleson, to place the property beyond the reach of her then creditors and all future creditors, and that the legal title was in her husband in trust for her; and second, if it should be held defendant did not hold the property as trustee for his wife, then, it is alleged, his acts in respect to the property were such that he should be held to be equitably estopped to claim the property as against the creditors of his wife. It is thought that neither ground of relief is sufficiently sustained by the evidence to warrant the relief demanded by the bill. Of course, the burden of proving the facts upon which the right to relief is based, rests upon complainants.

There is no satisfactory testimony showing that the money used in paying for the property was the money of the deceased wife. There is some evidence tending to show defendant Ole Oleson paid his own money for it, and took the deed to himself, as any purchaser would do. On this controverted fact in the case, as to whose money was in fact used in paying for the property, it may be conceded the evidence is, in a measure, unsatisfactory. On. a close and careful study it is seen it is hardly sufficient to overcome the denial of defendant, both in his answer and in his testimony at the hearing of the cause, that his wife’s money was used in paying for the property. Before it would be held defendant was a mere trustee for his wife, the evidence of that fact should be clear and satisfactory. Defendant states positively he bought the property and paid for it with his own money, and states the source from whence he obtained the funds used. On the whole case considered, this court can not say the finding of the trial court on this branch of the case is so much against the weight of the evidence it ought for that reason to be reversed.

Nor is the other ground of relief insisted upon, any better sustained. There are few, if any, facts proved that would authorize complainants to invoke against defendant the doctrine of an equitable estoppel. That doctrine proceeds on the theory the party is forbidden to set up his legal title, because he has so conducted himself in regard to the property that to do it would be contrary to equity and good conscience. That principle finds no just application to the facts of this case.

It is said defendant, by his conduct and statements, encouraged the belief his wife was the owner of the property, and in that way induced complainants to loan her money on the faith of her wealth, the reputation for which it is said he created and encouraged. The principal thing it is proved he permitted his wife to do in regard to the property is, that he allowed her to receive rents from the tenants, and to use the same as her own. His conduct and hers in this respect is explained by the fact the wife was a trader, and carried on several kinds of business on her own account, and had been so engaged since before her marriage with defendant, in 1862, up to the time of her death, which occurred in 1883. Her former husband left quite considerable real property, which descended to his and her children at his death. It seems she controlled that, and used the income in her business. She was constantly borrowing money wherever she could obtain it. It appears she was a woman of great energy of character and vigor of will. Defendant’s explanation is, that he allowed his wife to collect and retain the rents of the property that he might thereby secure “peace,” and under the evidence in this record that would seem to be a reasonable explanation of his conduct in that respect. This he might, properly do without any injury to persons dealing with his wife in her individual capacity.

It is said, also, he was silent when he ought to have made known his rights. The rule on this subject is, when the foundation of the estoppel insisted upon is silence, and omission to give -notice of one’s rights, the party relying upon the same must not have had the means of ascertaining the true state of ■the title by reference to the public records. Here, the title of defendant was a matter that appeared on the public records, and was open to the inspection of everyone. Besides that, he lived with his family on the premises, from 1865, when he alleges he bought the property, up to 1883, when his wife died, except one year that he lived on premises that had belonged to his wife’s first husband. Although the wife was a trader on her own account, yet while she lived with him, her husband, in law, would be regarded as the head of the family. The property was therefore his homestead. Persons dealing with the wife, if they wished to know anything concerning the property occupied by her husband, should have inquired of him in possession, and he would be bound by his answers. Had any one about to give credit to the wife, inquired of her husband in possession to whom the property belonged, and had been assured it belonged to the wife, that would have estopped him forever after from claiming title to the property as against such creditors. But it can hardly be claimed in this case the husband said anything to any one about to give credit to the wife, that could mislead, except in a single instance. One creditor does say he asked defendant to sign the note given by his wife, and that he replied, “It is no use for me; I have not. got anything; everything is hers.” This conversation is expressly denied by defendant, and as to the fact in controversy there is no preponderance of the evidence in favor of complainants. Defendant also denies the statements made by Mrs. Swensen on the same subject.

Any further comment on the testimony in detail would be a useless and profitless work. The controversy, as has been seen, is largely one of fact. The trial court had some advantages for ascertaining the facts, not possessed by this court, and no sufficient reason is perceived for reversing the findings of that court upon either branch of the case.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.