text:
    Michael Moriarty v. Thomas A. Galt.

      Filed at Ottawa June 16, 1888.

    Attorney’s fees—as an element on suggestion of damages on dissolution of injunction. The purchaser of a homestead filed his bill to prevent the sale of the same by the sheriff, on an execution against the purchaser’s grantor, on the ground the premises were not subject to levy and sale, and obtained an injunction staying the sale. On the hearing, the injunction was made perpetual, and on appeal the decree was reversed, and the cause remanded, with directions, substantially, to dismiss the bill, whereupon the injunction was dissolved on the defendant’s motion, and, on suggestion of damages, attorney’s fees were claimed: Heidi that solicitor’s fees were not recoverable in such a case, it appearing that the same legal services would have been necessary to defend the suit if no injunction had been granted.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Whiteside county; the Hon. John V. Eustace, Judge, presiding.

      Messrs. J. & J. Dinsmoor, for the appellant:
    A bill may be for an injunction alone, so that a dissolution of the latter is practically a dismissal of the bill. Parkinson v. Trousdale, 3 Scam. 367; Edwards v. Pope, id. 465; Phelps v. Foster, 18 Ill. 309; Titus v. Mabee, 25 id. 257; Weaver v. Poyer, 70 id. 567; Prout v. Lomer, 79 id. 331,
    Attorney’s fees are properly allowed as damages on the dissolution of an injunction. Billings v. Sprague, 49 Ill. 509 ; Misner v. Bullard, 43 id. 470; Directors v. Trustees, 66 id. 247 ; Joslyn v. Dickerson, 71 id. 25; Mason v. Shawneetown, 77 id. 533; Cummings v. Burleson, 78 id. 281; Darst v. Gale, 83 id. 136; Danville v. Parks, 88 id. 170; Cummings v. Mugge, 94 id. 186; Marsh v. Morton, 75 id. 621; Ryan v. Anderson, 25 id. 372; Buck v. Beekly, 45 id. 101; Colcord v. Sylvester, 66 id. 540.
    Messrs. Manahan & Ward, for the appellee:
    While this court, in some injunction eases, allowed counsel fees to the defendant, whenever the question has been raised fees for defending the suit have invariably been refused. Jeme v. Osgood, 57 Ill. 346; Elder v. Sabin, 66 id. 131; Weaver v. Fries, 85 id. 356; Blair v. Reading, 99 id. 615; Dishbrow v. Garcia, 52 N. Y. 654; Childs v. Lyon, 3 Rob. 704; Gerard v. Gateau, 15 Bradw. 530; Wallace v. York, 45 Iowa, 81; Allen v. Brown, 5 Lans. 511; Hotchkiss v. Platt, 8 Hun, 46; Strong v. De Forest, 15 Abb. 427; Campbell v. Metcalf, 1 Mont. 378; Allport v. Kelly, 2 Ed. 343; Newton v. Russell, 87 N. Y. 527; Burgen v. Sharer, 14 B. Mon. 497; High on Injunctions, secs. 973, 974; 2 Sutherland on Damages, 65, 68.
    Counsel fees may be recovered in an action upon the bond, if the injunction was improperly or wrongfully sued out, the amount being limited to fees paid counsel for procuring the dissolution, and not for defending the entire ease. It is improper to include fees paid to counsel for defending the entire action to which the injunction was merely ancillary. High on Injunctions, secs. 973, 974; 2 Sutherland on Damages, 65, 68; Wallace v. York, 45 Iowa, 81; Allen v. Brown, 5 Lans. 511 ; Hotchkiss v. Platt, 8 Hun, 46.
    In Dishbrow v. Garcia, 52 N. Y. 564, it is said: “The principal question was the title to property,—not the right to use it pending the action.” In this case, the sole question was whether Galt’s ownership of the premises was free of or subject to Moriarty’s judgment lien,—not the propriety of issuing the preliminary writ. Childs v. Lyon, 3 Rob. 704; Strong v. De Forest, 15 Abb. 427; Campbell v. Metcalf, 1 Mont. 378.
    The only damages which can be recovered are such as arise from the injunction itself, and not such as are occasioned by the suit, independent of the injunction. Burgen v. Sharer, 14 B. Mon. 497.
   Mr. Justice Scott

delivered the opinion of the Court:

The original suit out of which the present litigation arises, was a bill brought by Thomas A. Galt, against Michael Moriarty, plaintiff in a certain execution, and Thomas S. Beach, sheriff, to prevent defendants from casting a cloud upon the title of certain real property which complainant claimed to own in fee simple. It was alleged the property was exempt from sale under defendant’s execution in the hands of the sheriff, because it was, at the time of the recovery of the judgment, the homestead of one Mooney and wife, who afterwards, by deed, conveyed it to complainant, with a release of homestead. A temporary injunction was asked for, and allowed, to restrain the sheriff from making the sale until the further order of the court in the premises. On the final hearing of the cause the circuit court decided the property was not subject to sale on the execution, and entered an order making the injunction perpetual. That decree was affirmed in the Appellate Court for the Second District, but the judgment of the Appellate Court was afterwards reversed in this court, and the cause remanded to that court, with directions to reverse the decree of the circuit court and remand the cause for further proceedings in conformity with the views expressed in the opinion of the Supreme Court. That was done, and when the cause was re-docketed in the circuit court, it seems defendant Moriarty entered a motion to dissolve the injunction, in accordance with the mandate of the Appellate Court. Thereupon a suggestion of damages, alleged to have been occasioned by the injunction, was made, and the court was asked to ascertain and assess the same, under the statute. The sum demanded as damages amounted to $465.69, most of which was for attorney’s fees in and about the defense of the suit, as appears from the bill of items found in the record. The injunction previously awarded was dissolved, and the suggestion of • damages was referred to the master in chancery, and he was ordered to take evidence and report as to the matter of damages. Upon the evidence taken by him the master reported that he was of opinion defendant was entitled to damages in a sum equal to the fair value of all the services rendered by his solicitors in procuring the dissolution of the injunction, and fixed the value of such services, from a fair estimate of all the evidence, at $400. To the master’s report twelve exceptions were filed before the master, all of which he overruled. On the cause coming on to be heard on the suggestion of damages, the court sustained all the exceptions taken to the master’s report, and held, and so decreed, that defendant Moriarty was not entitled, under the proof taken arid reported by the master, to any damages by reason of the injunction, and thereupon dismissed the bill at complainant’s costs. That decree was affirmed in the Appellate Court, and defendant Moriarty brings the case to this court on appeal.

The entering of a motion, as was done, after the cause was sent down from the Appellate Court, to dissolve the injunction, was the doing of a useless thing. The mandate directed the circuit court to proceed in conformity with the views expressed in the opinion of the Supreme Court,, and that was equivalent to a direction to dismiss the bill. When that should be done the injunction would cease to control, without any specific order of dissolution. Even if this were a case for the allowance of solicitor’s fees as damages, the amount fixed ($400) by the master was so unreasonable, in view of the character of the case, had it been allowed it would not be permitted to stand for a moment. The judgment which the litigation concerned was only about $600, and had the sum claimed been allowed, it would have been oppressive in the extreme upon complainant in the original suit.

But the case is not one where solicitor’s fees should be allowed as damages recoverable, as on the dissolution of an injunction. The question presented, by the bill and subsequent pleadings in the case, for decision, was, whether the premises, or any part thereof, were subject to levy and sale on the execution issued on the judgment in favor of defendant Moriarty, after they had been sold by the judgment debtor, or, in other-words, whether a judgment becomes a lien upon any portion of property occupied by a debtor and his family as a homestead, when it exceeds in value $1000. That was a question of some difficulty, and one about which the courts disagreed. Both of the courts below through which the case came to this court, held the judgment was not a .lien upon the property, or any portion of it. This court, however, held, as to $1000 of the lot the judgment created no lien, and could not be enforced, but as to the excess in value, the property was liable to be levied upon and sold at any time during the existence of the lien of such judgment. The injunction granted was simply an incident to the principal relief sought by the bill, and operated to stay the action of the sheriff until the question litigated by the parties could be judicially determined. That was a question in which both parties were interested, and common prudence would dictate no sale of the property should be made while the point in controversy was being litigated through the several courts, and it would seem defendant, as well as complainant, would have been willing to a stay of proceedings without the restraining order of the court to that effect. There was, in fact, no controversy as to the propriety of the injunction. It necessarily followed the fate of the bill. If it should be held the judgment created no lien on the premises, then it would be continued; but if it should be determined it was a lien on the premises, or some portion, then it would fail, as a matter of course, with the dismissal of the bill, which would follow that conclusion. In Wilson v. Haecker, 85 Ill. 349, it was said: “It is not perceived what damage appellees would suffer from being restrained from selling or incumbering the land while the title was in litigation.” In Blair v. Reading, 99 Ill. 600, the case of Wilson v. Haecker is cited with approval, and it was said: “The propriety of suing out the injunction was never called up or considered by the court until the case was finally considered on its merits.” What was said in both of these cases may well be applied to the facts of the case in hand.

It is not perceived what damage defendant Moriarty would suffer from the sheriff being restrained-from making the sale while the question whether the judgment was a lien upon the premises was being litigated; nor was the propriety of the suing out of the injunction called up or considered until the merits of the case had been passed upon by this court. It is apparent the expenses incurred on account of solicitor’s, fees would have been substantially the same if no injunction had been sued out. Had the preliminary injunction been refused, the bill might have been, and doubtless would have been, retained to ascertain whether complainant was entitled to relief, and the same litigation would have been had.

The circuit court and the Appellate Court decided wisely and justly in disallowing the claim of solicitor’s fees as damages arising out of the issuing of the injunction, and the judgment of the Appellate Court will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Scott

license: Public Domain

text:
    The County of Cook v. Thomas W. Sennott.

      Filed at Ottawa June 16, 1888.

    1. County officers—duty to report fees, etc.—at what intervals. The clerk of the Probate Court, and certain other county officers of Cook county, are required by law to make semi-annual reports of all fees, etc., on the first days of June and December, respectively, in each and every year, to the chairman of the county board, and after their accounts have been audited, to pay the balance found in their hands, above their compensation, to the county treasurer.
    2. The clerk of the Probate Court of Cook county is not required by law to make monthly reports of the affairs of his office, nor is he required to pay over the balance found in his hands, except after his semi-annual reports shall have been audited by the county board. That board has no authority of law to require him to make monthly payments into the county treasury, and he may rightfully disregard any such order.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.
    Mr. E. R. Bliss, for the appellant.
    Mr. Sidney Smith, and Mr. John M. Hamilton, for the appellee.
   Mr. Justice Scott

delivered the opinion of the Court:

Respondent, Thomas W. Sennott, is clerk of the Probate Court of Cook county, which court, it is alleged, is a “court of record.” It seems he was elected and entered upon the duties of such office on the first Monday of December, 1886, for a term of four years. The petition is for a writ of mandamus to compel respondent, as clerk of such court, to pay into the county treasury, in compliance with an order of the county board, all fees, perquisites and emoluments of his office over and above the amount of his own compensation as fixed by law, whatever that may he, received by him during the month of December, 1887. It is alleged that on the 12Th day of September, 1887, the board of commissioners ordered all clerks of courts of record in Cook county, including the clerk of the Probate Court, to pay into the county treasury all the fees, perquisites and emoluments of their offices over and above the amount of their own lawful compensation; that a committee was appointed to make demand upon these officers, and that demand was made upon respondent, as clerk of the Probate Court, to comply with such order, but that he refused; that respondent made his semi-annual report on the 30th day of November, 1887, and paid into the county treasury the balance of the earnings of his office for that half year, and that during the month of December, 1887, respondent received as such clerk the sum of $3318.70, which money, less the amount due him on account of salary, should have been paid over, under such order of the board, at the end of that month, but that he refused to comply with the order in that respect, notwithstanding legal demand had. been made upon him. To the petition alleging these and other facts with the usual fullness, the court sustained a demurrer, and dismissed the petition. That decision is assigned for error.

It is plain the order of the county board requiring all clerks of courts of record in Cook county to pay into the county treasury, monthly, all fees, perquisites and emoluments of their respective offices above the amount of their own salaries as fixed by law, so far as it relates to the clerk of the Probate Court, contravenes the provisions of the statute on that subject, and respondent was under no duty to observe it. Section 31 of “An act concerning fees and salaries,” approved March 20, 1872, as amended by the act in force July 1, 1887, (Sess. Laws, 1887, page 185,) declares: “Every such officer, respectively, shall, on the 1st day of June and the 1st day of December, in each year, during the term of his office, and while receiving a salary as herein provided, make to the chairman of the hoard of commissioners a report in writing, under oath, of all the fees and emoluments of his office, of every name and description whatsoever, and of all necessary expenses for clerk hire, stationery and other expenses for the half year, or fraction thereof, ending at the time of said report. * * * It shall be the duty of said board of commissioners to audit such accounts as.soon as may be, and correct and adjust the same in accordance with the facts. The balance found in the hands of any such officer * * * shall he paid over by such officer to the county treasurer as soon as his account shall have been audited, as aforesaid.” Among the officers enumerated in this section of the statute is the “clerk of the Probate Court of Cook county.” It is seen, this statute requires that respondent shall make semi-annual reports of certain matters pertaining to his office,—that is, on the first days of June and December, respectively, in each and every year. It is made his duty, after his accounts shall have been audited, to pay the balance found in his hands into the-county treasury. He is not required to make “monthly reports” of the affairs of his office, nor is he required to pay the balance found in his hands, except after his semi-annual reports shall have been audited by the county board, as the statute requires shall be done. It is conceded respondent made his semi-annual report on the 30th of November, 1887, and paid into the county treasury the balance of the earnings of his office for that half year. The contention is as to the fees received during the month of December, 1887,—whether the balance over and above his own compensation should be paid over at the end of that month. It is a proposition that needs no argument in its support, that an order of the board of commissioners that requires respondent to pay over funds received by him in his official capacity, otherwise than he is directed by statute to do, is not binding upon him, and he can not be compelled by mandamus, or otherwise, to comply with such an order.

Besides the question as to the power of the hoard to require all these fees in excess of the officer’s salary to be paid over “monthly, ” the petition also asks the court to determine the amount of compensation respondent is lawfully entitled to take since the passage of the amendatory act of 1887. That question is not involved in the present decision, and for that reason this court declines to express any opinion concerning it.

The judgment of the circuit court is affirmed.

Judgment affirmed.


text:
    SINGER, NIMICK & Co. v. Henry T. Steele.

      Filed at Ottawa June 16, 1888.

    1. Contract—with an attorney—right to employ an assistant at the expense of his client. An attorney at law employed to collect a large demand, with the approval of his client compromised with the debtor, taking in payment some money, some lands, and about $7000 of notes of a third person, made payable to the attorney for convenience of collection, which notes fell due at stated periods. He was to receive $500 for making the compromise and for collecting these notes. The maker of the notes, before payment, becoming insolvent, assigned to the attorney various claims on his customers, who resided at a distance, and some in other States, as collateral security for the notes: Held, that the attorney might properly employ a competent person to collect the collaterals, and, in addition to his fee, retain a reasonable compensation to pay his assistant, as the collection of such collateral claims was not within his original contract.
    2. Master’s report—exceptions thereto, whether necessary. Where a party is dissatisfied with the finding of the master in chancery in stating an account, he should make distinct exceptions thereto, specifically pointing out any supposed error, so that the same can be readily determined by the court, and corrected. If he fails to file any exceptions, he will be understood as acquiescing in the conclusions and findings of the master.
    Appeal from, the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of " Cook county; the Hon. Henry M. Shepard, Judge, presiding.

      Messrs. Gardner, McFadon & Gardner, for the appellants.
    Mr. John McGaffey, for the appellee.
   Mr. Justice Scott

delivered the opinion of the Court:

This appeal is from a judgment of affirmance by the Appellate Court of the decree rendered by the trial court in the case of Singer, Nimick & Co. v. Henry T. Steele. The bill, as originally framed, prays for an account of all transactions of defendants in respect to the disposition made of certain notes taken from the Chicago Plow Manufacturing Company, in exchange, or as collateral thereto, for complainant’s claim against one N. S. Bouton, and of “all collections thereof made by him, or which, without his defaults, might have been received.” The bill was afterwards amended, by leave of the court, by inserting in the place of “or which, without his defaults,” as follows: “or which, without his willful defaults or neglect.”

It is seen, the evidence was quite sufficient to warrant the interlocutory decree that was rendered. It proceeded on well recognized equitable principles. The only questions that can arise as the case comes before this court, are: First, whether defendant could rightfully charge additional compensation, under the circumstances, for the services of the person he employed to assist him about the business of complainants; and second, whether any portion of complainants’ claim was lost through the “willful default or neglect” of defendant.

It seems the relation of client and attorney existed between the parties to this litigation, and that while such relation existed, complainants placed in the hands of defendant, for collection, a claim of $15,720 against N. S. Bouton. That claim was compromised by defendant with the debtor by taking in the settlement, lands valued at about $7500, cash $1120, and notes of the Chicago Plow Manufacturing Company for $7200, which notes were made payable to the order of defendant, for the convenience of collection. These notes became due and payable at stated periods. That settlement of the claim was fully approved by complainants, and no complaint is made on that ground. It was agreed defendant should receive $500 for his services in making that settlement, and for his further services in collecting the notes as they should fall due, and remitting the proceeds. That sum defendant retained out of fund's in his hands, with the approval of complainants. At the time these notes were taken it was thought by all parties concerned the Chicago Plow Company was entirely solvent, but before all the notes were paid that company failed, and in order to secure the notes in question, the company assigned certain claims it had against its customers, to defendant and J. Blackburn Jones, as collateral security for its unpaid notes to defendant, for the benefit of complainants. It was for the services of Jones in trying to collect these collaterals that defendant charged additional compensation, and which was allowed to him by the decree of the court. In the decree, in this respect, it is not perceived' there was any error. The $500 it was agreed should be paid to defendant was for his services in making settlement of complainants’ claim against Bouton, and for collecting and remitting the notes of the plow company “as the paper falls due.” As before remarked, it was then thought the plow company was solvent, and its notes in the hands of defendant would be paid in the manner agreed upon. It was not contemplated defendant would undertake the collection of collaterals assigned to him and his partner, Jones, without further compensation. That was not his contract. All he agreed to do in the future for the $500 paid him was to “collect and remit” the notes of the plow company as the same became due. So far as the notes were paid by the plow company in accordance with the agreement, defendant observed his contract in that respect. The collaterals assigned to defendant and his partner were upon persons residing in other States, and far distant from the residence of defendant, and it would be an unreasonable construction of his contract that he should go to such distant points to make collections of collaterals not contemplated by his agreement. Nor was he bound to go in person. It was entirely proper that he should employ any competent person to make, or endeavor to make, collection on the collaterals.

As respects the second question, it is sufficient to say, it does not appear defendant failed to make collections, either on the notes taken from the plow company or on the collaterals assigned to him and his partner, by “his willful defaults or neglect,” or otherwise. Reasonable diligence was shown in efforts to collect the collaterals placed in his hands, and that is all the law requires.

The cause was referred to the master in chancery to take an account in accordance with the directions given in the interlocutory decree. The master heard evidence and stated an account between the parties, and as no exceptions were taken to the report, the court decreed according to his findings, except as to the finding as to the allowance of extra compensation to defendant for legal services,—a part of the amount having been remitted by defendant. The practice is, where a party is dissatisfied with the finding of the master in chancery, he shall make distinct exceptions, so the court can readily understand what matters are at issue between the parties, otherwise it will be understood he acquiesces in the conclusions and findings of the master. According to the well settled practice, the court in this case first determined, by its interlocutory decree, the rights of the parties, and fixed the basis upon which the account should be taken, and then referred the cause to the master in chancery. On the coming in of his report, if either party was dissatisfied with its conclusions or findings, it was his privilege to file exceptions specifically pointing out any errors thought to have been made by the master, which could be readily determined by the court. That was not done by complainants, and they will not now be heard to make objections to the master’s report which they did not take and insist upon in the trial court.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    Mary Griffin v. Amelia Griffin et al.

      Filed at Ottawa June 16, 1888.

    1. Witness — competency — as to a fact occurring after one’s death. The widow of a deceased person is a competent witness to prove that after her husband’s death she found a deed to him among his papers, as tending to show its delivery to him, that being “a fact occurring after the death of such deceased person. ”
    2. Same—widow of grantee of land, whether competent to testify in support of the title—and herein, whether party sues as devisee. Where the fact that a party acquired title to land by devise is not disputed, and the only question is whether such devisee conveyed the same, the widow of the grantee is a competent witness to prove that she saw the deed during her husband’s lifetime, when it was acknowledged. In such case, the grantor, seeking to set aside the deed as a, cloud on her title, does not sue as a devisee, and it is not material how she originally acquired title.
    3. Same—competency of party against one defending as heir. On bill by a former owner of land to set aside a deed made by her to a son who died after the time the deed purports to have been made, she will not be -a competent witness against the minor heirs of the grantee, on her own motion, but as against her and in behalf of the minor heirs the widow of her grantee is a competent witness, and if the latter testifies, then the former is competent to testify to the same facts.
    4. Where a widow, having only a life estate with a power of sale, files a bill against the heirs of her deceased grantee to set aside a deed made by her, the remainder-man will not be a competent witness to testify to facts to defeat such deed.
    5. Will—devise of life estate, with power of disposition. A devise as follows, “I give and bequeath to my wife, M., all my personal property, after my debts are paid, for her own use forever, and the use of all my real estate during her natural life, with the same right to sell the same for her support and maintenance that I would have if living,” will invest the widow with a life estate in the lands of the testator, with power of sale for her maintenance and support. A valid deed by her will execute the power, and leave no estate undisposed of.
    6. Evidence—privileged communication to an attorney. Where two parties come to an attorney to obtain his opinion concerning the validity of a deed from one to the other, and make a statement of facts to him, there being no relation of client and attorney, the latter is a competent witness to testify to the conversation of the parties, in respect of the subject matter of such conversation.
    7. Same—to overcome certificate of acknowledgment. The evidence to impeach the certificate of the acknowledgment of a deed must be so full and satisfactory as to convince the mind that the certificate is false or forged. A mere suspicion, or even preponderance of evidence less than sufficient to establish a moral certainty to that effect, is insufficient.
    8. Delivery of deed—;presumption. Where a deed duly executed is found in the hands of the grantee, there is a strong implication that it has been delivered, and only clear and convincing evidence can overcome the presumption.
    Appeal from the Circuit Court of Mercer county; the Hon. John J. Glenn, Judge, presiding.
    This hill was exhibited by Mary Griffin, against Amelia Griffin, widow, and Rettie Griffin, Oliver Griffin and Sarah Griffin, minors, children and heirs-at-law of George Griffin, deceased. It is alleged in the bill, that complainant is, and has been for more than -twenty years last past, owner of the south-east quarter of the north-east quarter of section 13, township 14, north of range 2, west, in Mercer county; that she has been in the open and notorious possession thereof, and paid all taxes thereon, for more than twenty years before the filing of the bill; that hy some means unknown to the complainant, there is a deed upon the record of deeds in Mercer county, purporting to have been made by complainant to George Griffin, which is a cloud upon the complainant’s title; that she did not intentionally execute such deed; that if she did execute it she did so through mistake; that she never gave or sold the tract to George Griffin, and she has never received any consideration therefor; that George Griffin rented the tract from her for the years 1877, 1878, 1879 and 1880, and paid her rent therefor. It is also further alleged, that the deed purporting to have been made by complainant to George Griffin bears date May 23, 1866, and was recorded upon April 16, 1868, but complainant had no knowledge or notice thereof until March, 1886; that said deed is a fraud upon the rights of the complainant; that George Griffin died intestate before the filing of the bill, leaving the widow and heirs-at-law named as defendants. The prayer is that the deed be cancelled and set aside as a cloud upon complainant’s title. Amelia Griffin answered the bill, putting in issue the material allegations. The other defendants answered by guardian ad litem, also putting in issue the material allegations of the bill. The court, on final hearing, decreed that the bill be dismissed. This appeal is from that decree, and errors are assigned, bringing before the court the questions considered in the opinion of the ■court.
    Mr. I. N. Bassett, for the appellant:
    Henry G. Griffin was a competent witness. He did not have or claim any present right to the land. His rights accrued when his mother died. She could convey her own title for life, which would not affect his title in remainder. He was not a party to the suit. In order to render a person not a party to the suit incompetent, under section 2 of chapter 51, “Evidence,” the witness must be “directly interested in the event of the suit.” Bradley v. Morris, 3 Scam. 182; Sconce v. Henderson, 102 Ill. 376.
    John C. Pepper’s evidence was improperly admitted in evidence. It was a privileged communication. The law is well settled that an attorney can not testify to any knowledge he receives from a person in his professional capacity. 1 Green-leaf on Evidence, secs. 237-241; Wood v. Thornly, 58 Ill. 464 ; Granger v. Warrington, 3 Gilm. 299; People v. Barker, 56 Ill. 299; Bacon v. Frisbie, 80 N. Y. 394; Goltra v. Wolcott, 14 Ill. 89; Thorp v. Goewey, 85 id. 615 ; Dietrich v. Mitchell, 43 id. 45.
    Amelia Griffin, the widow of George Griffin, was not a competent witness to prove anything that occurred during the lifetime of her husband, in regard to the land in controversy. Crane v. Crane, 81 Ill. 166; Warrick v. Hull, 102 id. 280; 1 Wharton on Evidence, sec. 422; Waddams v. Humphrey, 22 Ill. 661; Crose v. Rutledge, 81 id. 266.
    The evidence shows that the deed in controversy was recorded by some mistake, or that it was never delivered or intended to be delivered. Jordan v. Davis, 108 Ill. 336; Sands v. Sands, 112 id. 225; Mitchell v. Shortt, 113 id. 251; Byars v. Spencer, 101 id. 429; Benneson v. Aiken, 102 id. 284.
    The deed must be accepted by the grantee to give it effect. Dickerson v. Merriman, 100 Ill. 342; Insurance Co. v. Campbell, 95 id. 267.
    While the record of a deed is prima facie evidence of delivery, yet it may be rebutted by other evidence or circumstances attending the transaction. Insurance Co. v. Campbell, 95 Ill. 267; Jackson v. Perkins, 2 Wend. 308; Jackson v. Phipps, 12 Johns. 418; Jackson v. Richards, 6 Cow. 616; Hawkes v. Pike, 105 Mass. 560; Welch v. Sackett, 12 Wis. 253; Young v. Guilban, 3 Wall. 641; Kingsbury v. Burnside, 58 Ill. 324.
    In order to make a delivery and acceptance, the minds of the parties must meet, as in all contracts. Jackson v. Bodle, 20 Johns. 184; Jackson v. Dunlap, 1 id. 114; Dale v. Lincoln, 62 Ill. 22; Herbert v. Herbert, Breese, 278.
    Delivery and acceptance must he mutual and concurrent acts. An acceptance subsequent to delivery is not sufficient. Hulick v. Scovil, 4 Gilm. 159; Church v. Gilmore, 15 Wend. 658.
    Mr. H. Bigelow, for the appellees:
    The deed is matter of record, has gone through certain forms and solemnities required by the law, has the sanction of the official oath of the officer, and in this, as in all the other States, it is held, by a long line of uninterrupted, strong and inflexible rulings, that it will take evidence of great weight to overcome it. Graham v. Anderson, 42 Ill. 518; Hill v. Bacon, 43 id. 478; Monroe v. Poorman, 62 id. 524; Spurgin v. Traub, 65 id. 170; Lickmon v. Harding, id. 505; Canal and Dock Co. v. Russell, 68 id. 426; Kerr v. Russell, 69 id. 670; Russell v. Baptist Theological Union, 73 id. 339; Marston v. Brittenham, 76 id. 611.
    These cases are worthy of particular attention. Lowell v. Wren, 80 Ill. 239; Tunison v. Chamblin, 88 id. 378; Blackman v. Hawks, 89 id. 512; Watson v. Watson, 118 id. 56; Fitzgerald v. Fitzgerald, 100 id. 385.
    H. G. Griffin was directly interested in the event of the suit. By defeating the exercise of the power he becomes the owner, subject to the prior life estate.
    The witness Pepper was not retained as an attorney, and therefore statements made in his presence were not privileged. 1 Greenleaf on Evidence, sec. 239 a.
    The evidence of Amelia Griffin, as to finding the deed among her husband’s papers after his death, was legitimate and proper.
   Mr. Justice Scholfield

delivered the opinion of the Court:

First—The material part of the testimony of Amelia Griffin, widow of George Griffin, deceased, is, that she found the deed after the death of George Griffin, among the papers that had belonged to him. This being “a fact,” in the language of the statute, “occurring after the death of such deceased person,” it is competent to prove it by her. (Rev. Stat. 1874, p. 488, secs. 1, 2.) The statement that she saw it before his death, at the time it was acknowledged, in view of the entire evidence in the case, is not very important; but we have no doubt that it also is competent. While it is true that complainant’s title was originally derived under and by virtue of the will of her deceased husband, yet that title is not here disputed. It is conceded she had title, and it is immaterial how it was acquired ; but it is contended by appellees that she subsequently conveyed it to George Griffin, while she denies that she did so, and this presents the only issue. She therefore neither sues nor defends here as conservator, executrix, administratrix, heir, legatee or devisee. (See Pigg v. Carroll, 89 Ill. 205.) The minor defendants, however, defend as heirs of George Griffin, deceased, and as to them rights she is not, in the first instance and of her own motion, a competent witness; but as against her, and on behalf of the defendants, the widow of George Griffin is a competent witness. (See Statute, supra.) And the widow of George Griffin having testified, complainant was a competent witness to testify to the same facts. See Statute, supra, exception 3.

Second—As above stated, complainant was not a competent witness, generally. She was competent to testify in rebuttal as to the same facts testified to by the widow of George Griffin, but she was not offered for that purpose.

Third—John Griffin, the husband of the complainant, by his will, devised the property in controversy, and other property, as follows: “I give and bequeath to my wife, Mary Griffin, all my personal property, after my debts are paid, for her own use forever, and the use of all my real estate during her natural life, with the same right to sell the same for her support and maintenance that I would have if living.” This invested complainant with a life estate, and a power of sale of the fee for her maintenance and support. (Funk et al. v. Eggleston et al. 92 Ill. 515.) E complainant’s deed to George Griffin was valid, it executed the power, and left no estate undisposed of. (Christy v. Pulliam, 17 Ill. 59.) But necessarily, if the deed was invalid, the remainder in fee is still in the heirs-at-law of John Griffin, deceased. Henry Griffin was one of the children and heirs-at-law of John Griffin, deceased. He was therefore directly interested in defeating this deed, and so he was incompetent as a witness against the children and heirs-at-law of George Griffin, deceased, who here defend in that capacity. See statute in relation to evidence, supra, and Comer v. Comer et al. 119 Ill. 170.

Fourth—The relation of attorney and client did not exist between complainant and Pepper at the time of the conversation testified to by him. The facts, as he states, are: George Griffin, Mary Griffin, the complainant, and John B. Hoag, brought the deed to the witness, already signed and acknowledged, and asked his opinion what was necessary to convey title to George Griffin. John B. Hoag was the nephew of complainant, but had no interest in the matter. Pepper says he was never attorney for complainant about this land, and that he was called in by George Hoag. Very clearly he was a competent witness. We held in Lynn v. Lyerle, 113 Ill. 129, where two parties go together to an attorney, and make statements to him in the presence of each other, such statements are not confidential communications, intended to be withheld from the opposite party, and there is no error in permitting the attorney to testify thereto in a suit between the parties relating to the subject matter of such communications.

Fifth—Where a deed duly executed is found in the hands of the grantee, there is a strong implication that it has been delivered, and only clear and convincing evidence can overcome the presumption. (Reed et al. v. Douthit et al. 62 Ill. 348; Tunison v. Chamblin et al. 88 id. 378.) There is no evidence in this record that this deed was not delivered, but,' on the contrary, there is, in addition to this legal presumption, affirmative evidence in effect acknowledging that it had been delivered.

Sixth—The evidence to impeach a certificate of acknowledgment of a competent officer to a deed of conveyance, must be so full and satisfactory as to convince the mind that the certificate is false or forged. A mere suspicion, or even preponderance of evidence less than sufficient to establish a moral certainty to that effect, is insufficient. Fitzgerald v. Fitzgerald, 100 Ill. 386; Lickmon v. Harding, 65 id. 505; McPherson v. Sanborn, 88 id. 150; Crane v. Crane, 81 id. 165; Russell v. Theological Union, 73 id. 337; Heacock v. Lubuke, 107 id. 402; Canal and Dock Co. v. Russell, 68 id. 430; Kerr v. Russell, 69 id. 666; Watson v. Watson, 118 id. 56.

The only evidence in this record tending to question the bona fides of this deed, does not tend to prove that it was not executed, or that it was executed by mistake, but rather, if anything, to establish a secret trust. It wants much of being sufficient to warrant a decree in conformity with the prayer of the bill.

The decree is affirmed.

Decree affirmed.


author: Mr. Justice Mulkey

text:
    John Boyd v. James Fullerton.

      Filed at Mt. Vernon June 16, 1888.

    1. Homestead—what embraced in the exemption. Where, at the time of the rendition of a judgment against a party, he was occupying, as his homestead, four contiguous lots, inclosed together, not exceeding in value §1000, they will be exempt from sale under such judgment, he continuing to occupy the same, and being the head of a family.
    2. Same—acquiring a new homestead—as to intervening judgments. Where the head of a family has sold his homestead, and secured another lot of ground and erected thereon a dwelling, with the manifest intention of making it a homestead, and actually does move upon it within a reasonable time, and its value is not in excess of $1000, he will be protected in the same against a judicial sale upon an intervening judgment.
    3. At the time of the recovery of a judgment against a party, the head of a family, residing with the same, he had sold a former homestead and purchased lots for another, which he had in possession, upon which he was erecting a dwelling house, which was, within a reasonable time thereafter, completed, and he then, with his family, moved into the same, and occupied it until his death. The whole property did not exceed §1000 in value. The property so constituting the new homestead was sold upon execution under the judgment, and a sheriff’s deed made: Held, that the property was exempt from sale, and that the sale and sheriff’s deed were void.

      Appeal from the Circuit Court of Perry county; the Hon. William H. Snyder, Judge, presiding.
    Mr. John Boyd, and Mr. W. K. Murphy, for the appellant:
    Only such occupancy is required as the circumstances will admit. Neal v. Coe, 35 Iowa, 410; Thompson on Homsteads, 252.
    A purchase of a homestead with a view to occupancy, followed by occupancy within a reasonable time, may secure, ab initio, a homestead inviolability. Hubbell v. Canaday, 58 Ill. 425; Nichols v. Spremont, 111 id. 631; Edwards v. Freeze, 9 Kan. 417; Thompson on Homesteads, 248, 249.
    Mr. John Michan, and Mr. R. W. Davis, for the appellee.
   Mr. Justice Mulkey

delivered the opinion of the Court.:

On the 31st day of October, 1887, the appellee, James Fullerton, obtained a judgment in the circuit court of Perry county, in an action of ejectment, against the appellant, John Boyd, for the recovery of lots 3 and 4, in Ozburn’s second addition to the town of Pinkneyville. The present appeal is from that judgment.

The appellee claims title through a judgment by confession against one Isaac Craig, the former owner of the property, an execution sale and sheriff’s deed. The defense to the action is of a two-fold character. It is claimed by appellant, in the first place, that the judgment against Craig, and upon which appellee’s title depends, is void, on the ground that the court had no jurisdiction over the person of the defendant at the time it was rendered. It is further claimed by appellant, that the lots in question, together with the adjoining lots 1 and 2, at the time said so-called judgment was rendered, constituted the homestead of the said Isaac Craig, and that the four lots, all together, did not exceed $1000 in value. Conceding this to be so, of course appellee acquired no title by reason of his purchase and sheriff’s deed. In the view we are inclined to take of the last question it will not be necessary to consider the first.

The judgment in question was rendered on the 30th of September, 1868, the sale made on the 15th of May, 1869, and the sheriff’s deed on the 2d of February, 1871. At the time the judgment was obtained, the four lots were in the actual possession of Craig. The entire property was enclosed with a fence, and he was then engaged in building upon it a dwelling house for himself and family, which was already far advanced towards completion, and into which he and his family moved in the month of November following, where, as head of the family, he continued to occupy the same as a homestead up to the time of his death, which occurred a few months afterwards. The evidence tends to show, that before the improvement of this property Craig had sold his homestead, and that he and his family were occupying rented premises while the property in question was being prepared for occupancy. The evidence is somewhat conflicting as to the value of the four lots, including the improvements thereon. Some of the witnesses fix it at from $1100 to $1300, yet by the decided weight of evidence its value is shown not to have exceeded $1000. As the four lots were contiguous property, and did not exceed in value $1000, it is very clear that if Craig and family had moved into the house in course of construction even a day before the date of the judgment, the whole property would have been protected, as a homestead, from sale under judicial process. So far there can be no dispute. But the question is, where the head of a family has sold his homestead, and has secured another lot of ground and erected thereon a dwelling, with the manifest intention of making it a homestead, and actually does move into it within a reasonable time, will an intervening judgment, followed by a judicial sale and sheriff’s deed, cut off or bar all his rights in the property under the Homestead law ? In other words, is the head of a family under all circumstances bound, at his peril, to move his family upon the homestead premises before his rights under the Homestead act will attach. We do not think so. Our conclusion upon this question is fully sustained by the following authorities: Neal v. Coe, 35 Iowa, 410; Edwards v. Freze, 9 Kan. 417; Crawford et al. v. Richeson et al. 101 Ill. 351; Thompson on Homesteads, 248-252.

We think the undisputed facts bring this case within the general principle laid down in these authorities. Indeed, any other rule could hardly be reconciled with the various provisions of the statute. Every change of homestead, which the statute expressly provides for, necessarily results in the newly acquired homestead becoming vacant and unoccupied, for a short time at least; and if the rights of homestead were not protected during that time, no one financially involved could with safety make the change.

The judgment of the court below is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Judgment reversed.


author: Mr. Justice Sheldon

text:
    Seth T. Sawyer et al. v. William P. Bradshaw, impleaded, etc.

      Filed at Mt.Vernon June 16, 1888.

    1. Fraudulent conveyance—deed of trust to one creditor for future advances—whether fraudulent as to others. A being indebted to B and 0 in the sum of $1500, gave to the latter a deed of trust on a lot worth about $650, to secure a note of $3000. B bought the lot at the trustee’s sale for one dollar, and paid $381 to redeem the lot from a prior sale. B and O testified that the deed of trust was given to secure a debt of $1500, and that the balance was for future advances: Held, in the absence of proof of a purpose to protect the property from the other creditors of A, that the difference between the apparent and the real amount of the incumbrance was not enough, of itself, to stamp the deed of trust as fraudulent as against the other creditors of A.
    2. Same—sale of property bade to debtor as evidence of fraud. The fact that a creditor, at the request of his debtor, purchased personal property belonging to the latter, at a sale on execution, with his own money, and afterward sold the same to the debtor at the price paid for it, with interest on the money advanced and a charge for time and trouble, fails to show any fraud on the part of such creditor, as against the rights of other creditors.
    3. Same—creditor taking assignment of prospective decree—as evidence of fraud in the taking of a prior deed of trust. A creditor took a deed of trust from his debtor purporting to secure a debt of §3000, when in fact the real debt was'only §1500, the parties contemplating future advances at the time. The property conveyed was not worth the amount of the actual indebtedness. Two days after the date of this deed the debtor assigned to the same creditor an anticipated decree in a pending suit, which, when recovered, amounted to $1290. This assignment was further security for the indebtedness, and the balance of the decree was applied to the payment of certain other debts of the assignor, absorbing nearly the whole amount: Held, that at most this was but evidence tending to show fraud against creditors in the making of the trust deed, but was quite insufficient, of itself, to show such fraud.
    4. Same—evidence—declarations of debtor after parting with his title, not admissible against his grantee. A, after giving a deed of trust on his lot to B and G, turned the property over to D, another creditor, who leased the same, and collected four months’ rent. When the fifth month’s rent fell due, the tenant informed D that he was notified not to pay him any more rent. Thereupon D applied to A, who told him that he had let B and G take the property to prevent S., another creditor, from selling it,—that S. claimed §900 of him, and he would not pay it if he could help it. At this conversation B and 0 were not present, and they had purchased the property at the trustee’s sale: Held, that the statements of A were not competent evidence against B and G, to show that their deed of trust was made in fraud of creditors.
    5. Had the property been let by A to D after the sale under the deed of trust, and the statements been made when A was in possession, claiming and treating the property as his own, they might, perhaps, have been admissible in evidence.
    6. Same—party seeking to set aside, confined to grounds set out in bill. On bill to set aside a deed of trust and a deed made thereunder, on the ground the same is fraudulent as to creditors, the complainant can not take advantage of the fact that the notice of the trustee’s sale was in violation of the statute, in not setting forth the correct amount due.

      Writ of Error to the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Madison county; the Hon. W. H. Snyder, Judge, presiding.
    Mr. R. S. Sawyer, and Messrs. Wise & Davis, for the plaintiffs in error:
    Plaintiffs in error had the right, under the statute, whether their judgment was a lien or not, to treat the deed of trust from Brown to Metcalfe & Bradshaw, and deed to Bradshaw from the trustee, as fraudulent and void, because made to hinder, delay and defraud creditors, and did so treat them; and by their so doing, the title to lot 39, in controversy, vested in appellees on March 8, 1881, by virtue of their judgment, execution and sheriff’s deed. Gould v. Steinburg, 84 Ill. 170; McKinney v. Farmers' Nat. Bank, 104 id. 180.
    The sheriff’s deed, when made, related back to the day of sale, (in plaintiff’s case to November 29, 1879,) in order to cut off subsequent purchasers. Fell v. Price, 3 Gilm. 186.
    The note and deed of trust from Brown to Metcalfe & Bradshaw, for $3000, bearing date April 6,1878, is fraudulent and void, because given for too large a sum. Mitchell v. Sawyer, 115 Ill. 650; Wooley v. Fry, 30 id. 158; Upton v. Craig, 57 id. 257.
    Metcalfe & Bradshaw, with intent to hinder, delay and defraud plaintiffs and other creditors of Brown, were holding in their names all of Brown’s property, real and personal, and yet Brown was getting the benefit of it all, and so a secret trust is established. Mitchell v. Sawyer, 115 Ill. 650; Moore v. Wood, 100 id. 451; Power v. Alston, 93 id. 587; Jones v. King, 86 id. 225.
    William P. Bradshaw, being a fraudulent grantee, is held hy law to be a trustee for the benefit of plaintiffs in error, as creditors, and in disposing of the property to Mrs. Clark, is responsible for the value of the same, with interest. Bump on Fraud. Con. 567; Steere v. Hoagland, 50 Ill. 377.

      The court should have allowed plaintiffs $800, at least, as the value of lot 39 on March 8, 1881.
    Plaintiffs were entitled to interest at six per cent per annum from March 8, 1881, on the value of lot 39 on that day, to the day of decree. Bump on Fraud. Con. 567; Steere v. Hoagland, 50 Ill. 377; Jones v. Lloyd, 117 id. 597.
   Mr. Justice Sheldon

delivered the opinion of the Court:

On November 29, 1879, Seth T. Sawyer and Robinson S. Sawyer purchased, at sheriff’s sale, under an execution upon a judgment in their favor against George T. Brown, for $160 and costs of suit, recovered at the February term, 1879, of court, lot 39, in penitentiary plat addition to Alton, as the property of said Brown, and subsequently received a sheriff’s deed therefor. On April 6, 1878, said Brown executed to Metcalfe & Bradshaw a deed of trust upon said lot 39, to secure the payment of a note from Brown to Metcalfe & Bradshaw, of even date with the deed of trust, for $3000, payable one year after date, with ten per cent interest. On July 26,1879, Metcalfe & Bradshaw caused said lot 39 to be sold at public sale, under the deed of trust, for the satisfaction of said note, and at the sale the lot was struck off and sold to Bradshaw for the sum of one dollar, and he received a trustee’s deed for the lot. It had previously been sold under an execution against Brown, and on June 21, 1879, Metcalfe & Bradshaw paid $381 in redemption of the lot from the execution sale. On January 21, 1880, Bradshaw sold and conveyed the lot to one Anna S. Clark. On March 6, 1885, the Sawyers filed their bill in chancery in this case, in the circuit court of Madison county, to have set aside the aforesaid deed of trust, trustee’s sale and deed, and the deed to Anna S. Clark, as fraudulent and void as against creditors, or if the said Clark was found to be an innocent purchaser of the lot, that then Metcalfe & Bradshaw, or Bradshaw, account to the complainants for the value of the lot. The circuit court found the deed of trust to have been made in fraud of creditors, that Clark was an innocent purchaser, and decreed that Bradshaw should pay to the complainants $650, as the value of the lot at the time of complainants’ sheriff’s deed for the same, March 8, 1881. The complainants bring this writ of error for the review of the judgment of the Appellate Court reversing the decree below.

The chief reliance, as showing the deed of trust in question to be fraudulent as against creditors, is upon the fact that the note secured by the deed of trust was given for a larger amount than was due from Brown to Metcalfe & Bradshaw at the date of the note, citing Wooley v. Fry, 30 Ill. 163, Upton v. Craig, 57 id. 259, Mitchell v. Sawyer, 115 id. 650, and Bump on Fraud. Con. 470, as in support of the position.

The testimony of Metcalfe and Bradshaw is, that Brown only owed them about $1500 or $1600 at the time the note and deed of trust for $3000 were given, on April 6, 1878, and on July 26, 1879, the day of the trustee’s sale, and that the balance of the note was to secure future advances and services. The mere discrepancy between the amount of the indebtedness and that of the note and deed of trust, should not, of itself, avoid the deed of trust as to creditors. The consequence in that respect depends upon the intent of the transaction, and upon its being calculated to mislead, to their injury, or to hinder and delay creditors.

There was a wide difference in the estimate of value by witnesses, of the lot here concerned, as is usual upon questions of value,—one witness placing his estimate of value as high as $1500. But the complainants, in their bill, state the value of the lot as only being from $500 to $800, and we think the finding of the circuit court of its value as $650 to be quite as' high as there was warrant for, from all the evidence in the case. There was no question as to the actual indebtedness to Metcalfe & Bradshaw being as much as $1500. Under such circumstances of the value of the lot and the amount of the real indebtedness, there was nothing in the property, in any event, for other creditors, but all, and more, was required for the satisfaction of Metcalfe & Bradshaw, and we can not conceive that mis-stating the amount of the incumbrance,—calling it $3000 instead of $1500,—could have had any possible effect, in respect of this property, of misleading other creditors to their prejudice, or of hindering and delaying them in the collection of their debts. The transaction, of itself, could not denote any purpose to protect the property from other creditors, and there is no evidence in the case from which to draw the inference of such a purpose. We can not, under the circumstances here, regard the fact of the difference between the apparent and the real amount of the incumbrance as enough to stamp the deed of trust as fraudulent as against creditors.

Brown had given the property over to one Mrs. Johnson, to make from it a debt he was owing her. She had rented it at ten dollars per month, and received four months’ rent. She testifies, that when the rent for the fifth month came due, her tenant informed her he had received notice not to pay her any more rent, and that on inquiring of Brown as to the cause of this, he told her he had to let Metcalfe & Bradshaw take the house to prevent Mr. Sawyer from selling it,—that Sawyer claimed $900 off him, and he wasn’t going to pay it if he could help it. This statement of Brown is insisted upon as evidencing fraud in the making of the deed of trust. We do not regard this statement as competent evidence against Metcalfe & Bradshaw. Had the property been let by Brown to Mrs. Johnson after the sale of it under the deed of trust, and the statement been made when Brown was in possession, claiming and treating the property as his own, it might, perhaps, have been admissible. (Jones v. King, 86 Ill. 226.) But such was not the ease here. The evidence shows that the property was given into the possession of Mrs. Johnson, by Brown, in June, 1879, which was before the sale under the trust deed, and at a time when Brown was properly in the enjoyment of the use and possession of the property. But subsequent to such sale, on July 26, 1879, Brown is not shown to have had any connection with the property, further than as appears from the conversation above stated, and Mrs. Johnson giving the key of the house to Brown. Mr. Bradshaw says that he took possession of the property as soon as he got the title under the trustee’s sale. The statement of Brown, if admissible, does not point to the making of the deed of trust, but relates to the giving of possession of the property to Metcalfe & Bradshaw after the sale of it under the deed of trust.

It is said that Metcalfe & Bradshaw were holding in their names all of Brown’s property, real and personal, Brown getting the benefit of it, and so a secret trust is established. All the foundation for this, aside from the matter of this deed of trust, is the insolvent condition of Brown; that Metcalfe & Bradshaw came into the possession of a lot of books and personal property once owned by Brown, which Brown afterward had the benefit of; and that on April 8, 1878, two days after the date of the deed of trust, Brown assigned to Metcalfe & Bradshaw an anticipated decree in a suit pending, and which decree was rendered in Brown’s favor on December 12, 1878, for $1290.60, and Brown received the benefit of it. As to the books and personal property referred to, it appears that they had been levied upon under an execution in favor of one Hambleton, against Brown, and that at the execution sale, on June 17, 1877, Metcalfe & Bradshaw, at the request of Brown, bought the property for $280.75, with their own money, and that they afterward sold to Brown the property at what they paid for it, interest and trouble, and delivered the property to Brown, except a writing table, which they kept. We fail to perceive evidence of any fraud in this transaction.

As to the decree assigned, Mr. Metcalfe testifies that the assignment was taken to secure their claim against Brown; that at the time of the assignment there was an outstanding execution of another'person against Brown, the amount of which, by agreement at the time, was to come out of the decree; that the amount of the execution,—$685,—was taken out of the decree, and the balance of the decree was paid to Metcalfe & Bradshaw, of which Brown got the benefit, nearly all of it going to pay debts he then owed." At the most, this is but evidence tending to show fraud toward creditors in the making of- the deed of trust, and is quite insufficient, of itself, to show such fraud.

It is objected that the advertisement of sale under the trust deed was in violation of the statute, in not setting forth, in the notice, the correct amount due. It is sufficient to say that the bill contains no allegation in this respect. The sole ground of impeachment of the sale under the trust deed, which is set forth in the bill, is, that the deed of trust was fraudulent as against creditors.

We perceive no sufficient reason for disturbing the judgment of the Appellate Court, and it must be affirmed.

Judgment affirmed.


author: Mr. Justice Shope

text:
    Portia Gage et al. v. Patrick Caraher.

      Filed at Ottawa June 16, 1888.

    1. Burnt Records act—what facts will bring a case within the act. Where it is averred and shown that the records of a county have been destroyed by fire, and that at that time the petitioner was the owner of the realty the title to which is sought to be confirmed; that he has had a connected chain of title from the government, evidenced by certain deeds of conveyance which are lost; that such deeds had been recorded and the record thereof destroyed in such fire, and that the defendants claim title in fee to the premises, and had caused deeds thereto to be placed on record, etc., and the petition is properly verified, it will entitle the petitioner to relief under the Burnt Records act, notwithstanding there may be adverse claimants.

      2. Same—allegations in respect to adverse claims—burden upon the parties respectively, in regard to his own claim of title. Under this act it is not necessary to aver in the petition that tax deeds held adversely are invalid, and show the grounds of their invalidity, as is required in bills to remove such deeds as clouds upon the title. All that is required in respect of adverse claimants or their titles is, that such claimants shall be named in the petition, and made defendants. The petitioner is required to show the validity of his own title, only, and when a person is made a defendant, it devolves upon him to establish the title he may claim to the property,,
    3. Same—settling adverse or conflicting titles. By section 10 of the act, the court, is given power to inquire into the condition of any title to or interest in the land, and to make all such orders, judgments or decrees as may be necessary to determine and establish such title or interest, either of a legal or equitable character; and by section 15, in such decrees, whether pro confesso or otherwise, to determine and decree in whom the title is vested.

      í. Same—confirming title as against tax title—upon terms. In a proceeding under the Burnt Records act, to confirm the title to land as against tax titles, the petitioner will be required to repay the money advanced at the tax sale, and subsequent taxes paid by the holder of such titles, with the legal interest thereon. This rule is based on the maxim “that he who seeks equity must do equity. ”
    5. But where a purchaser at a sale upon a special assessment, omits to take out his deed within the time limited by statute, and therefore the tax certificate and the sale on which it was based, are void, and can constitute no basis of title, and have ceased to be a cloud on the title to the property to which such certificate refers, then, in that case, the petitioner seeking confirmation of his own title will not be required to reimburse the holder pf such certificate for the money advanced by him at the assessment sale.
    6. Constitutional law—changing rules of evidence—legislative power. The power of the legislature to change the rules of evidence and the burden of proof, whether affecting existing rights or as applicable to rights subsequently acquired, or to future litigation, so long as such rules of evidence sought to be established are impartial and uniform in their application, is practically unrestricted.
    7. Same—changing the burden of proof in respect to tax titles—constitutionality of the act. The statute creating the presumption in favor of the regularity of the proceeding for the sale of land for taxes, prior to the deed, establishing only a rule of evidence, may be changed, and a change in the statute doing away with the presumption, and throwing the burden of proof on the party holding a tax title to show the regularity of the proceeding, is not unconstitutional, as impairing the obligation of contracts.
    8. Tax title —judgment and precept and affidavit of notice essential. It is indispensable to the validity of a tax title that there shall be a valid judgment, a valid precept, and the affidavit of the notice required by law. The act of 1845 (Rev. Stat. 1845, chap. 89, sec. 73,) does not make the tax -deed prima facie evidence of a valid judgment, or affidavit of notice. These were required to be shown to establish the validity of a tax title.
    9. Same—limitation as to time of taking out deed. Under the act of 1867, unless the holders or owners of certificates of sales for taxes or special assessments, whether made for city, State, county or any other purpose, within six months from and after the time of redemption should expire, take out a deed or deeds, such certificates of sale, and the sale or sales on which they were based, are made absolutely null and void, and they will cease to be a cloud on the title to the property to which the certificates refer.
    Appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    This was a petition under the Burnt Records act, (Rev. Stat. chap. 116,) by Patrick Caraher, against appellants and others, to establish and confirm his title to lot 3, in block 9, school section addition to Chicago, and lot 21, in Gurley’s subdivision of block 10, canal trustees’ subdivision of the south-east quarter of section 17, town 39, range 14 east, in Cook county, Illinois. The petition, in addition to complying with section 16 of the act, in averring the destruction of the record and setting out the title of appellee, as required, set out that since the destruction of the record, three pretended tax deeds had been placed on record, dated, respectively, September 28, 1871, October 16, 1872, and October 24, 1872, purporting to convey said lots to Henry H. Gage, and a deed for said lots from Asahel Gage to Portia Gage, and alleging that Asahel Gage, Henry H. Gage and Portia Gage claimed title to said lots in fee. Asahel Gage filed answer disclaiming any interest in the premises. Henry H. and Portia Gage severally answered, denying the material parts of the petition relating to the title of appellee; admitting the destruction of the records, the recording of the tax deeds mentioned, and setting up conveyance by Henry H. Gage to Portia Gage; averring the validity of said tax deed, and title in Portia Gage in fee, and also that on March 30, 1869, there had been three sales,—two of lot 3 and one of lot 21,—by virtue of warrants issued upon judgments, rendered against said lots, respectively, for special assessment duly made thereon; that certificates had issued, severally, on such sales, which were legally held by Henry H. Gage, who, after the time of redemption had expired, filed the same with the proper officer, accompanied with an affidavit, as required by law, to procure deeds thereon; that such officer had made such deeds, but that the same, with the affidavits and certificates still remaining with such officer, were destroyed in the fire of October 9, 1871, and protests that appellee was not. entitled to the relief sought, but if he was, such relief .could be granted only upon payment of all taxes, special assessments, etc., advanced by appellant Portia Gage, or her grantors. The court entered a decree finding appellee seized of the land, required him to pay taxes and costs advanced at the several sales on which said tax deeds were issued, with all subsequent, taxes paid thereunder, with six per cent interest thereon, and finding said tax deeds void, and reserving to appellants all rights they may have acquired, if any, under or by virtue of said sales for special assessments, referred to in the answers, and that appellee was not required to refund the amounts paid on said special assessment sales.
    Mr. Augustus N. Gage, for the appellants:
    The constitution of the United States secures appellant in her vested rights. Garrick v. Chamberlain, 97 Ill. 620.
    The law under which the purchase was made, constituted a contract, and created vested rights. Cooley on Taxation, (2d ed.) chap. 16, sec. 13; Garrett v. Wiggins, 1 Scam. 335.
    The petition failing to point out any irregularity in the tax deeds, the court erred in setting them aside. Hyde v. Heath, 75 Ill. 381; Gage v. Reid, 104 id. 509; Walker v. Ray, 111 id. 315.

      Mr. James E. Monroe, and Mr. Ira J. Gaer, for the appellee:
    The Burnt Records act invested the trial court with full jurisdiction to establish the lost deeds and destroyed records thereof, and to declare the better title to the lots, whether legal or equitable. Robinson v. Ferguson, 78 Ill. 539 ; Mulvey v. Gibbons, 87 id. 377; Smith v. Hutchinson, 108 id. 662; Smith v. Gage, 11 Biss. 217.
    If the petition states a case within the provisions of the act, it will be treated as a suit under the act, rather than as a bill to remove a cloud. Heacock v. Hosmer, 109 Ill. 245; Smith v. Hutchinson, 108 id. 662; Heacock v. Lubuke, 107 id. 396.
    The party relying on a tax deed must prove a judgment and precept authorizing the sale, (Hinman v. Pope, 1 Gilm. 131,) as well as the filing of the affidavit of notice. Atkins v. Hinman, 2 Gilm. 437; Rally v. Doolittle, 24 Ill. 577; Elston v. Kennicott, 46 id. 189; Williams v. Underhill, 58 id. 137; Eagan v. Connelly, 107 id. 459; Holbrook v. Fellows, 38 id. 440; Wilson v. McKenna, 52 id. 48.
    No one can have a vested right in a mere rule of evidence. Cooley’s Const. Lim. (5th ed.) 452, *368; Hickox v. Tallman, 38 Barb. 608; Roby v. Chicago, 64 Ill. 447.
    The decree is not inequitable as respects the terms on which it vacates the three tax titles.
    When a title is absolutely void it is not a cloud. Detroit v. Martin, 34 Mich. 173; Overing v. Foote, 43 N. Y. 293; Cox v. Clift, 2 Com. 118.
   Mr. Justice Shope

delivered the opinion of the Court:

It is contended that this proceeding is not, properly considered, under the act known as the “Burnt Records act.” This is a misapprehension. This case is essentiaUy different from Gage v. McLaughlin, 101 Ill. 155. It was said in that case: “This bill, while ostensibly filed under the act, is in reality one filed to remove the tax deeds of Gage as a cloud on petitioner’s title.” That the effect of the proceeding may be to remove a cloud from the petitioner’s title, can not be regarded as a test of whether the proceeding is properly under the act. That will, in all cases, depend upon the case made by the petition, and proofs thereunder.

It is averred and shown that the records of Cook county were destroyed by fire October 9, 1871; that at that time petitioner was the owner of the lots in question; that he had a connected chain of title from the government, evidenced by certain deeds of conveyance, thirty-six of which, necessary to the completion of his chain of title, were lost; that such deeds had been recorded, and the record thereof destroyed in said fire; that appellants and others were claiming title in fee to said lots, and had caused deeds thereto to be placed on record, etc. The petition was duly verified, and contained all that was necessary to entitle the petitioner to relief under the provisions of that act, and was sustained by proof. •

It is no objection to proceeding under the statute, where the facts alleged and proved bring.the ease within its provisions, that there are adverse claimants. Whatever may be the power of the court of chancery, where there are controverted titles, to restore, by its decree, the evidences of title in the respective parties as they were before the destruction of the record, and then, in its discretion, remit the parties to a court of law to there try their titles, it is manifest no such course was contemplated by the statute, or necessary in eases under it. By the act, (sec. 10,) the court is given power to inquire into the condition of any title to or interest in the land in question, and to make all such orders, judgments or decrees as may be necessary to determine and establish said title or interest, either of a legal or equitable character; and (sec. 15) in such decrees, whether pro confesso or otherwise, to determine and decree in whom the title is vested. The court is authorized and required to investigate the interest of all the parties in the premises in question, (Malvey v. Gibbons, 87 Ill. 367,) and to decree in favor of the better title. (Robinson v. Ferguson, 78 Ill. 538; Smith v. Hutchinson, 108 id. 662; Smith v. Gage, 11 Biss. 217.) The decrees so entered are, by the statute, (sec, 16,) made, as to the title so found, forever binding and conclusive. Ample provision is made by the 18fch section of the act for presenting opposing or conflicting claims of title.

It is also objected that the petition is insufficient to warrant the court in finding the tax deeds void, for the reason that it does not aver the invalidity of such tax deeds, as is required to be done in bills to remove tax deeds as clouds upon titles, (Moore v. Wayman et al. 107 Ill. 195, Farwell v. Harding et al. 96 id. 32, Barnett v. Kline, 60 id. 205,) and proof thereof was not made by the petitioner. This position is untenable. All that is required in respect of adverse claimants or their titles is, that such claimant shall be named in the petition and made defendant. Nothing more is required to give the court jurisdiction, under the statute, to investigate all claims of title to the premises, and by its decree establish and confirm the title in the person in whom it is found to be vested, and to make all such orders, judgments and decrees as shall be necessary to that end. It was said in Smith v. Hutchinson, supra, that the petitioner was required to establish the validity of his own title only, and “when a person is made defendant in a petition of this character, it devolves upon him to establish the title he may claim to the property.”

If appellants intended to rely on their title set up in their answers, they were required to show its validity. It- is said, however, in effect, that this was done when they introduced in evidence their tax deeds, regularly executed by the proper officer ; that by virtue of the statute, such deeds are made prima facie evidence of the regularity of all the precedent' proceedings necessary to their validity, and that this is so, notwithstanding the “Burnt Records act” (par. 23,) expressly provides that no tax deed, based upon any. proceeding the record of which has been destroyed, shall be received as prima facie evidence of the regularity of such proceeding, because the statute making the tax deed prima facie evidence of the regularity of the precedent steps, etc., was in force at the time of the sale and making of the deeds, and formed part of the contract relating thereto, and that the application of the 23d paragraph of the “Burnt Records act,” passed subsequently to the making of the deed, would be in violation of section 10, of article 1, of the constitution of the United States, preserving the inviolability of contracts. The position of counsel is manifestly untenable. As we have seen, it devolves upon appellants to show that their tax titles, or some of them, were valid, before the court could decree in their favor thereon, and it was essential and indispensable to the validity of such titles that there should be a valid judgment, a valid precept, and the affidavit of notice required by law. We have repeatedly held, that a tax deed made in pursuance of the statute in force when these several sales and deeds were made, is void, unless it is supported by a valid judgment and precept. Nothing in the act (Rev. Stat. 1845, chap. 89, sec. 73,—Gross’ Stat. 1869, p. 575,) makes the tax deed prima facie evidence of a valid judgment, precept or affidavit of notice. These were required to be shown to establish the validity of the tax title. Pitkin v. Yaw, 13 Ill. 251; Baily v. Doolittle, 24 id. 577; Gage v. Lightburn et al. 93 id. 248 ; Eagan v. Connelly, 107 id. 458.

But if this was not so, counsel is in error in supposing that the section of the “Burnt Records act” referred to, would have the effect to impair any right of contract. At most, the statute creating the presumption in favor of the regularity of the proceeding prior to the deed, is a rule of evidence only. By the statute referred to, the party claiming under a properly executed tax deed was relieved, in the first instance, of the necessity of proving certain things essential to the validity of his deed, and the burden was cast upon the opposite party of showing irregularity therein) if it existed. By the latter act, when the record of the proceedings upon which the tax deed is based has been destroyed, as here shown, this presumption in favor of regularity is taken away, and the burden is upon the party claiming under the deed, to show that the law has been complied with in each step essential to the making of a valid tax title. What is .essential is the same in both cases. The burden of proof, only, is changed. The power of the legislature in this respect, whether affecting proof of existing rights, or as applicable to rights subsequently acquired, or-to future litigation, so long as the rules of evidence sought to be established are impartial and uniform in their application, is practically unrestricted. (Cooley’s Const. Lim. 368; Hickox v. Tallmann, 38 Barb. 601.) The section of the “Burnt Records act” referred to, is applicable to this case, and its application is not obnoxious to the constitutional objection urged. (Roby v. Chicago, 64 Ill. 447.) It follows, that the court was justified in finding that the several tax deeds constituted no legal impediment to its decree confirming the title in petitioner.

Although the tax deeds were void, the purchasers at the several sales for taxes in pursuance of which said deeds were -executed, had discharged a burden cast by law upon petitioner, and paid the taxes and costs which were a just charge upon his land, and equity required that before he should, at his own suit, be declared vested with the fee simple title, as against the holders of the tax deeds, he should repay the money so ¡advanced for his benefit and to relieve his estate. This was done as to all taxes paid at such sales, and subsequent taxes paid under such deeds, and interest thereon. The question arose, here, upon the answer of the defendant, and the court properly found an equitable defense to the relief sought by petitioner, to the extent of the taxes paid, and properly refused its relief until the petitioner should do equity by repaying the same, with legal interest thereon.

It is also insisted that the court erred in setting aside said tax deeds without requiring appellee to pay the several amounts of said special assessment sales of March 20, 1869, with legal interest thereon. It was shown that said sales were made as alleged in the answers, and that appellants, or one of them, were the legal holders of the certificates issued thereunder. The practice in courts of equity, of requiring a party who seeks equitable relief to submit to equitable terms, is based on the maxim, “that he who seeks equity must do equity.” (1 Pomeroy’s Eq. sec. 385.) Upon this principle, courts of equity refuse to remove a tax title as a cloud, except upon repayment of the taxes and costs paid at the tax sale, and taxes subsequently paid under the tax certificate or deed, with legal interest thereon. The taxes paid subsequent to the sale will be presumed to have been paid under and for the support and protection of the title thus acquired. These special assessment sales were severally made prior to the sales for taxes upon which said several tax deeds were predicated, and in no sense can they be said to have been paid under or in support of the tax deeds declared void; and if appellee is, in equity, required to refund the money paid at such special assessment sales, it must be upon some equitable consideration other than that of the decree finding the tax deeds void and setting them aside. It is apparent that so far as the sales and certificates are to be regarded, in equity, as affecting the right of appellee to the relief sought by his petition, the decree conclusively determines against appellants, and the effect of confirming the absolute title in fee in appellee, is to disregard the equitable rule announced, if appellants have an equitable right to satisfaction of the sums so paid by them, or their assignors or grantors. That the special assessments for which said sales were severally made were valid burdens on appellee’s lot, and that the payment of the same inured to his benefit, may be conceded. These sales were severally made March 20, 1869, and redemption thereon would expire March 20, 1871. The court found, as it was justified by the evidence in doing, that no deed or deeds, were “taken out” upon the certificates severally issued at such sales, or either of them. The statute in force at the time of making said sales, and at the expiration of redemption, was the act of March 8, 1867, (Sess. Laws, 1867, p. 167,) by which it was provided, that unless the holders or owners of certificates of sales for taxes or assessments, whether made for city, State, county, or any other purpose, under and in pursuance of any of the laws of this State, should, in all cases, within six months from and after the time of redemption should expire, take out deed or deeds as contemplated by said act, said certificates, and the sale or sales on which they were based, should thereafter “be absolutely null, and should constitute no basis of title, and should cease to be a cloud on the title to the property to which such certificates refer.” The time limited in which tax deeds must he taken out upon the three tax certificates issued upon the sales for said special assessments, would, under the provisions of this act, expire September 20, 1871. Nothing is shown to take the case out of the operation of the statute. When, therefore, the petition in this case was filed, the certificates issued upon these sales for special assessments not only were not evidence of title, but constituted no basis of title, and had ceased to be clouds upon the title of appellee. By going into a court of equity, appellee submitted to giving appellants their legal .and equitable rights,—nothing more. He neither gave up nor waived any legal or equitable right of his own. No vitality was thereby given to the claim of appellants for money paid, at such special assessment sales, or the certificates issued thereon. The court was therefore fully justified in disregarding so much of the claim of appellants as related to the money so advanced and the interest claimed under and by virtue of said certificates, and in decreeing title in appellee as if no such sales had been made or certificates issued.

Finding no error in this record, the judgment of the Superior Court is affirmed.

Judgment affirmed.