author: Mr. Justice Walker

text:
    John Kenley et al. v. Daniel S. Bryan.

      Filed at Mt. Vernon September 27, 1884.

    1. Decree—bill to review and impeach. A decree of a court can not be impeached or reviewed except for fraud or error.
    2. Administration—sale of land to pay debts—subject to incumbrance. The county court has the jurisdiction and power to order the sale of real estate of a decedent, when necessary, to pay debts of the estate, notwithstanding the same may be incumbered by a mortgage; and there is no error in directing the sale to be made subject to the mortgage. So an estate in remainder may be sold subject to the prior life estate.
    3. Same—sale of real estate subject to dower. On application by an administrator for a decree to sell real estate to pay debts, the county court has jurisdiction to order the assignment of dower and homestead to the widow of the intestate, and may properly direct the sale of the portion set off as dower, subject to the widow’s life estate.
    4. Same—sale to widow in payment of her specific allowance, not fraudulent. The sale of land assigned to the widow of an intestate by an administrator, to her, subject to the dower and homestead estate, she being the highest bidder, can not be impeached for fraud merely from the fact that she paid no cash, but gave her receipt to the administrator for the amount of her bid, against her specific allowance. Her receipt operated to release the estate of so much indebtedness.
    5. Same—fraudulent combination. At an administrator’s sale of lands an eighty-acre tract was struck off to a bidder for $250, subject to a mortgage and taxes, amounting to $350, the land not being worth more than from $600
      to $800. The purchaser failing to take the land, the husband of the widow of the intestate agreed to take the land at the bid, when the administrator conveyed to the bidder, and he quitclaimed to the other party, who paid the bid and discharged the incumbrances: Held, that these facts did not even tend to show a fraudulent combination to obtain the property at a sacrifice.
    6. Same—remedy to impeach sale of land en masse. If two separate and distinct tracts of land are sold by an administrator as a whole, without first offering them separately, such fact affords a ground of exception to the report of sale, but not for impeaching the sale years afterwards by a bill in chancery. The remedy in such case is by motion to set aside the sale before its confirmation.

      7. Homestead—of a reassignment on change of value. The administrator of an estate filed his petition in the county court for an assignment to the widow of the intestate, of dower and homestead in the lands of the estate, and for an order of sale of the residue for the payment of debts. A decree was entered accordingly. Subsequently the heirs exhibited their bill in chancery to impeach that decree, or rather the sale made by the administrator under it, for fraud, and among other things prayed for a reassignment of the homestead. It was considered there was no case made for such reassignment, even if that might be done. If, because the land assigned for homestead has increased in value, a new assignment may be had to reduce the quantity, it would seem that when it has depreciated in value, for the same reason a new assignment might be had to increase the quantity.
    Appeal from the Circuit Court of Clay county; the Hon. William C. Jones, Judge, presiding.
    Messrs. Cope & Chesley, for the appellants:
    If an administrator’s deed may he attacked in the circuit court, it must he by bill to remove a cloud upon title, and on the ground that the sale is absolutely void. The decree and subsequent orders of the county court can not be attacked collaterally.
    A bill of review, or a bill to impeach a decree for fraud, or any bill by which it is sought to suspend, modify or set aside a decree or order of court, must be brought in the court where such 'decree was rendered. After a hearing in one court, a party may have further remedy by' appeal or writ of error, or bill of review, etc., but he is not permitted to change the venue to another forum. The county court having full concurrent jurisdiction with the circuit court in all matters relating to the settlement of estates, this rule applies to the orders of the county court. Moffit v. Moffit, 69 Ill. 641; Bostwick v. Skinner, 80 id. 147; Housh v. People, 66 id. 178; Von Heller v. Johnson, 57 id. 109; Cox v. Garst, 105 id. 343.
    As to inadequacy of price, see Allen v. Shepard, 87 Ill. 315.
    Messrs. Cockrell & Monroe, for the appellee:
    A homestead is not liable to sale, directly or indirectly. It is exempt for all purposes. It can not be sold subject to such interest. Hartman v. Schultz, 101 Ill. 437.
    A bill of review is a chancery proceeding, and county courts do not have general chancery powérs. The county court can not adjudicate an adverse title, consequently a bill of review in the county court can not reach and cancel deeds, and for this reason can not furnish an adequate remedy.
    A bill of" review can only be filed for error of law and newly discovered evidence. Error of law must be such as arises from mistake or inadvertence, and not from error in the judgment of the court. Callen v. Shields, 2 Stew. & Port. 417; Younge v. Forgey, 4 Heyw. 189.
    It is said that complainant, and all others interested; being parties to the proceedings in the county court, can not and could not have any remedy except by appeal or writ of error. "Where a decree or sale is void, the party whose rights are sought to be affected need not appeal, but he may treat the proceeding as a nullity, and file his bill to set aside such sale as a cloud upon his title. In such case he may attack the sale or proceeding collaterally, and is not bound to take an appeal or prosecute a writ of error in order to protect his rights.
    There was no necessity to sell the land subject to the homestead of the widow, nor could it be sold in that way. To sanction such sales would be to open up.a lottery in real estate, and lead to the sacrifice of many valuable estates, as has been the case here.
    The title to the eighty-acre tract never vested in Williams, for the reason he refused to comply with the terms of the sale,—consequently the deeds to him, and from him to Ogden, and from Ogden to Henry Kenley, are all void, and no money was paid by the widow on her purchase, though the sale was ordered for cash.
    We do not think that homesteads, after fair assignments have been made, can be reassigned accordingly as the land increases or decreases in value; but we do think that a reassignment should be made where it appears that an unreasonable amount has been set off.
   Mr. Justice Walker

delivered the opinion of the Court:

It appears that in February, 1878, Abijah S. Bryan, of Clay county, departed this life intestate, leaving a widow and a number of children as his heirs. He died seized of several tracts of land named in the bill. A portion of the property was free from incumbrance, but eighty acres, consisting of two forty-acre tracts adjoining, but in different sections in the same township, was incumbered by a mortgage for $300. Mary E. Bryan, a daughter, and Henry Johnson, and the other heirs, were minors, except Daniel S. Bryan, at the time of filing the bill. The widow married one Isaac D. Ogden, by whom she had one child, also a minor. John Kenley, a brother of the widow, at the February term, 1878, of the county court, was appointed administrator of the estate, and qualified, and entered upon the duties of the office. At the February term of the county court, 1879, Kenley, as administrator, filed a petition asking for the assignment of dower and homestead to the widow, and for an order for the sale of the remainder of the real estate for the payment of debts owing by the estate. It appears from the decree of the county court, that homestead and dower were assigned to the widow of one hundred and six and two-thirds acres out of two hundred acres owned by deceased at the time of his death, and the court decreed that all or so much of the remaining lands as might be necessary be sold for the payment of debts, and also decreed a sale of the land assigned as dower and homestead subject to those interests. The administrator advertised and sold the land subject to dower and homestead, and the widow became the purchaser at $200, and he executed to her a deed for the property. The widow subsequently departed this life, leaving surviving her husband, and one child by that marriage. Mary E. Johnson and her husband reside on the homestead, and a minor brother and sister also reside with them. When the administrator offered the eighty acres incumbered by the mortgage, one B. H. Williams bid it off at $250, subject to the mortgage,—and it is charged this was done with a secret understanding as to its future disposition. The administrator reported the sale to the county court, and it was approved. It is charged that Williams paid no consideration, but receipts of the widow on her specific award were fraudulently used in such payment; that Williams, without consideration, quitclaimed the land to Ogden, and he and wife, without consideration, quitclaimed to Henry Kenley, or to one of two other persons named in the bill; that Kenley has paid the mortgage, and is in possession of the land and in the receipt of the rents and profits without having paid anything on it but the amount of the mortgage; that this land w'as worth $800, and that by the combination charged, the creditors and heirs have been defrauded; that the debts against the estate, over and .above the widow’s award, amounted to between $300 and $400, which have not been paid. The bill prays that the cause be reviewed and the decree of the county court set aside, and the sales by the administrator, and all conveyances subsequent thereto, be cancelled and set aside, and commissioners appointed to reassign homestead, and for an account of rents and profits, etc. Answers were filed denying all fraud, and insisting that the entire transaction was fair and legal in all its parts. It is denied that Henry Henley had any connection whatever with the administrator’s sale, but purchased the eighty-acre tract from Ogden for §800, which he has paid. On a hearing on bill, answers, replications and proofs, the court decreed the relief sought, except a reassignment of homestead was denied. Defendants appeal to this court, and assign various errors, and appellee assigns cross-errors that the court refused to set aside the assignment of homestead, and to reassign the same.

Whilst the bill is called a bill of review, from its form and scope it is in substance a bill to impeach a decree, or, rather, a sale under it, for fraud, and we shall consider it such.

Is there any fraud proved as alleged in the bill, to sustain the decree ? We think not. There is no pretence that Bryan did not die intestate, seized of the real estate ordered to be sold to pay his debts. He was indebted at the time of his death, and the debts largely exceeded the personal assets of his estate. This required the county court to render the decree for the sale of the lands. The decree was therefore proper for the purposes for which it was filed. It can not be impeached for want of jurisdiction, because the county court had jurisdiction, both over the subject matter and the persons of the parties, except it could not order the sale of the portion of land set off to the widow for homestead. All understand that a decree can not be impeached or reviewed unless fraud, or error, at least, is shown. The county court had jurisdiction to order the assignment of dower and homestead, and the allegations in • the petition, and the proofs, clearly showed the widow was entitled to both. Nor is there any allegation in this bill that there was any fraud in obtaining the decree, or that there was the slightest evidence then existing that is newly discovered, that will disprove a single fact necessary to sustain the decree. It then irresistibly follows, that there is no ground for reviewing and reversing this portion of the decree, even if such a bill will lie.

The court undeniably had the jurisdiction and power to decree a sale of the eighty acres, subject to the mortgage. We are not aware that any court has ever held, since real estate has been subjected to sale under execution, that land subject to a mortgage, a life estate, or a remainder, may not be thus sold; and the 10th section of the statute in reference to judgments and decrees provides that the lands, tenements and real estate of the defendant may be sold under execution, and the 3d section defines the term “real estate” to include lands, tenements, hereditaments, and all legal and equitable rights and interests therein and thereto, etc. The 97th section of the chapter entitled “Administration of Estates, ” authorizes the sale of the “real estate” of a deceased person to pay his debts where the personal assets are insufficient for the purpose. The 107th section authorizes the court to decree the sale of so much of the “real estate” as may be necessary to pay debts which can not be paid by the personal property. This is clearly broad enough to embrace the remainder after the termination of a life estate of a dowress. The manifest intention of the statute is, that when necessary, all of the real estate which was held by deceased, and every kind of interest therein, shall be subjected to sale for the payment of his debts. It may be that the uncertainty of the time when the estate will commence may depress the price, but no more so than the sale of the remainder after a life estate is spent, under an execution. In some cases the purchaser of the remainder may come into possession within a short period, and in others the period may be of great length; but this uncertainty is not a reason why creditors should not be paid their debts from the proceeds of such sales. It would be highly unjust to fail to subject such an estate or interest in real estate to sale for the payment of debts, because it may be sacrificed, and leave the heirs owners of the remainder, and leave the creditors unpaid. Such an unjust purpose could never have actuated the legislature in providing for the sale of the real estate to pay debts of the estate. We can attribute no such purpose until it shall be so provided. There was therefore no error in decreeing the sale of the land assigned to the widow as dower, subject to that estate. To deny the power is to perpetrate a wrong and injustice on creditors that would be unjust and inequitable in a high degree. There is no error in law in that portion of the decree, as it conforms strictly to the law.

The bill, and the evidence under it, fail to disclose any ground for impeaching the decree for fraud in obtaining it. There was regular service, and sufficient legitimate proof to require its rendition. Nor is there the slightest fraud endeavored to be shown in anything that was done before it was rendered. There is therefore no pretence for impeaching it on that ground. It is true the bill charges that the administrator conducted the sale fraudulently, but no facts are' specified as constituting fraud, nor do we regard the evidence as establishing fraud. Mrs. Bryan was the highest bidder for the land sold, subject to dower and homestead. It is true she did not count out the actual cash in paying for it, but she receipted for the amount of her bid, to be retained by the administrator out of her separate allowance which the estate owed to her. This operated to relieve the estate of so much debt, and was a full, fair and legal discharge of the estate of that amount of indebtedness, and we are wholly unable to perceive the slightest fraud in the transaction.

As to the eighty acres, it was apparently sold for the highest price that could be obtained. Williams bid, and the land was stricken off to him for $250, subject to a mortgage debt, taxes and interest, which, when paid, was $350. This was within $100 or $200 of the highest value placed on it,— and Henry Kenley paid $800 for it, which was, from the evidence, all it was worth.

The evidence signally fails to establish any kind of fraud or combination to depress the price, or to accomplish any purpose but to obtain the best price attainable. There is no witness who says he would have given more, or that it was worth more than the price for which it sold, subject to the incumbrances. Williams and the administrator both deny there was any arrangement in reference to the amount he bid, or that it was for any other person. After bidding it off he failed to take it, and Ogden being willing to take it at the bid, a deed was made to Williams, who conveyed to Ogden. This is not unusual, nor does it tend to prove a fraudulent combination. There had been a previous sale, when the eighty acres was struck off to a bidder at $150, subject to the mortgage, but he refused to go on with the purchase, because he alleged the land was too high. We fail to find any fraud, nor is there any proof that there was any sacrifice in the prices paid.

The evidence fails to show that the property subject to dower and homestead was first offered and sold en masse, but the evidence shows that it was offered in separate tracts, and not being sold, it was then offered and sold as a whole tract; but if it had been, that would have been ground of exception to the administrator’s report, but is not ground for impeaching the sale years afterwards by a bill in chancery. The cases of Noyes v. True, 23 Ill. 503, Ross v. Mead, 5 Gilm. 171, Gillespie v. Smith, 29 Ill. 473, and Prather v. Hill, 36 id. 402, show that parties to obtain relief by bill to set aside sales of several tracts as a whole, must have objected on motion to set aside a sale, before the sale is confirmed. Here relief, if entitled to any, could have been had on exceptions to the administrator’s report.

The evidence fails to establish that the property was sold at a great, if any, sacrifice. Nor has a case been made for a reassignment of homestead, even if that may be done. If because the land assigned for homestead should rise in value, a new assignment should be had to reduce the quantity, it would seem that when it depreciates in value, for the same reason a new assignment should be had to increase the quantity.

The decree of the court below is reversed, and the cause remanded.

Decree reversed.


source: Caselaw Access Project

author: Per Curiam :

license: Public Domain

text:
    Hamilton Shirk et al. v. Metropolis and New Columbia Gravel Road Company.

      Filed at Mt. Vernon September 27, 1884.

    1. Lien— of judgment—not affected by an appeal. An appeal from a judgment of the circuit court to the Supreme Court does not affect the lien of the judgment, or its capacity to become a lien on real estate acquired by the judgment debtor pending the appeal.
    2. Execution—pending an appeal, not void, but voidable. The issuing of an execution on a judgment of the circuit court pending an appeal from the same, is irregular, but the execution is not void; and a sale of land under such execution is subject to be set aside on motion by the defendant, made in proper time, but by no one else; and if not so set aside, the sale will pass the defendant’s title to the land.
    3. Same—who may have sale under, set aside. Ho one but the defendant in an execution can question a sale of his land under the same, for an irregularity. If he fails to have the same set aside, and acquiesces in the sale, no one acquiring a title from or through him can question the validity of the sale, especially in a collateral proceeding.
    Appeal from the Circuit Court of Massac county; the Hon. David J. Baker, Judge, presiding.
    This was an action of ejectment, brought by the Metropolis and New Columbia Gravel Road Company, against Hamilton Shirk and Albert P. Oakes, for the north half of block 120, in the city of Metropolis, in Massac county.

      The following is a brief statement of the facts of the case, upon which it seems there was no dispute: The plaintiff below, to show title in itself, gave in evidence a judgment of the circuit court of Massac county, in favor of McGlanery & Co., against Charles McBean, for $75.50, recovered on May 1, 1875. McBean appealed from this judgment to the Supreme Court, the appeal being perfected May 21, 1875. On the 3d day of January, 1878, while said appeal was pending, McGlanery & Co. sued out an execution on their said judgment, which was, on February 27, 1878, levied on the real estate in question, and a large quantity of other real estate. This was an alias execution, but it was admitted that the first execution was not issued within a year from the rendition of the judgment. On April 13, 1878, the sheriff sold the property involved herein, to one James A. Williams, one of the plaintiffs in the judgment, for $165.45, which satisfied the execution, except as to $1.75. On May 4, 1881, Williams assigned his certificate of purchase to the appellee, to which the sheriff made a deed for said real estate May 5, 1881. On October 27, 1881, the appellee brought this action, and afterwards, on November 3, 1881, McGlanery & Co. entered their motion in the Supreme Court to dismiss McBean’s appeal, and to award damages, which motion was granted, and the appeal dismissed. The appellee also claimed under an execution sale made on a judgment rendered in the United States Circuit Court for the Southern District of Illinois, in favor of Alter, Winston & Co., and against Richard A. Peters, John N. Allen and the said Charles McBean. This judgment was rendered June 7, 1876, for the sum of $580.93. On December 4,1876, an alias execution was issued on this judgment, upon which the real estate in question and other lands were levied upon, and on October 27, 1877, the same property was sold by the marshal to Alter, Winston & Co., who, on July 5, 1878, assigned their certificate of purchase to Elijah P. Curtis, to whom a deed was made by the marshal on February 7, 1879. On June 18, 1879, Curtis conveyed the land to appellee and to William E. Brown, Hiram Quante, August Quante and James A. Williams, and on September 2, 1879, Brown, Williams and the Quantes conveyed to the appellee. This was the whole of appellee’s evidence, except that relating to its incorporation.
    From the appellant’s evidence it appeared that on July 9, 1877, Jaques Brothers & Co. recovered a judgment against the said Charles McBean, in the county court of Massac county, for $309.75, upon which judgment execution was issued July 12, 1877, which was levied on block 120 and other real estate. On September 1, 1877, the property was sold by the sheriff to Jaques Brothers & Co. for $334.22, to whom the sheriff, on December 2, 1878, made a deed. On January 11, 1879, Jaques Brothers & Co. conveyed to John F. McCartney, and on the same day the latter, by warranty deed, conveyed to appellant Shirk, and Joshua N. Fincher, and on October 13, 1880, Fincher conveyed to Sarah A. Oakes, wife of appellant Albert P. Oakes.
    Upon this evidence the circuit court found the issues for the plaintiff below, and rendered judgment in its favor for the recovery of the premises in fee, from which judgment the defendants below appealed to this court. The only question presented is whether these facts showed title in the appellee.
    Mr. John M. Lansden, for the appellants:
    The execution in favor of McGlanery & Co. was void, as the appeal suspended all further proceedings under the judgment. Practice act, sec. 82; Ambrose v. Weed, 11 Ill. 488; Haynes v. Haynes, 68 id. 203; Freeman on Executions, secs. 25, 32, 33.
    The appeal or case was pending in the Supreme Court when the appeal bond was filed and approved. Owens v. McKethe, 5 Gilm. 79; Simpson v. Alexander, id. 260; Blackerby v. People, id. 266; Reynolds v. Perry, 11 Ill. 534.

      Whether an officer can or can not justify under a writ, is no test whether the writ is void or not. Void process is a shield—not a sword; he can defend under it, but he can not build up a title on it. Tuttle v. Wilson, 24 Ill. 553; Jackson v. Hopson, 4 Scam. 411; Barnes v. Barber, 1 Gilm. 401; Parker v. Smith, id. 411; McDonald v. Wilkie, 13 Ill. 22; Tift v. Ashbaugh, id. 602; Davis v. Wilson, 65 id. 525; Leadman v. Dougherty, 81 id. 324; Ressler v. Peats, 86 id. 275.
    If the view taken by appellee is correct, then McBean was deprived of his land without due process of law.
    Messrs. Green & Gilbert, for the appellee:
    An execution must issue within one year, to preserve the judgment, unless “restrained by appeal.” Rev. Stat. 1874, chap. 77, sec. 2.
    An appeal does not vacate the lien of the judgment. Curtis v. Root, 28 Ill. 367; Freeman on Judgments, sec. 382, p. 329.
    Even though an appeal is successful, and the judgment be reversed, the purchaser under the judgment from which the appeal is taken acquires a good title. McLagan v. Brown, 11 Ill. 519; Whitman v. Foster, 74 id. 147; Fergus v. Woodworth, 44 id. 374; Feaster v. Fleming, 56 id. 457; Hobson v. Ewan, 62 id. 146; Guiteau v. Wisely, 47 id. 433.
    It is claimed that the McGlanery & Co. execution was void because it was issued pending the stay by appeal, and one year after the date of the judgment. When the first execution is not issued until after the expiration of a year, it is not void, but only voidable. If the defendant takes no steps to have it quashed, or the sale set aside, the sale is good. Hernandez v. Drake, 81 Ill. 34.
    A sheriff’s deed upon a sale under a special execution' issued more than a year after the date of the judgment upon which it was issued, and which execution is not set aside, conveys good title to the grantee. Morgan v. Evans, 72 Ill. 585.

      A voidable judgment can only be attacked in a direct proceeding, and by a party to the judgment. Martin v. Judd, 60 Ill. 78.
    Where an execution issues prior to the expiration of a stay, or on a dormant judgment, while irregular, none but the parties can take advantage of it. Hermann on Executions, 80.
    A sale upon an execution, after a judge’s order staying proceedings, is not a nullity,—it is only voidable, and can not be set aside in a collateral proceeding. Swiggart v. Harber, 4 Scam. 364.
    The correct doctrine, and that which is well established by authorities, is, that the defendant in the fieri facias having submitted to it, a stranger to the record can not now avail himself of the irregularity of the writ in a collateral proceeding. Swiggart v. Harber, 4 Scam. 364; Peters’ Digest, 269; 5 Johns. 100.
   Per Curiam :

This case, in its facts, is almost identical with that of Oakes v. Williams, 107 Ill. 154, both involving precisely the same questions. In the case referred to it was held that an appeal from a judgment of the circuit court to the Supreme Court does not affect the lien of the judgment, or its capacity to become a lien on real estate acquired pending the appeal, but that its only effect is to stay further proceedings until the appeal is disposed of; that the issue of an execution on a judgment pending an appeal is irregular, but that it is not void, and that a sale of ■ land under such an execution is subject to bé set aside, on motion made in proper time, by the defendant whose land has been sold, and that no one but the defendant in the execution can question the sale for irregularity, however gross, especially in a collateral proceeding. In this case, as in the one above referred to, there was a valid judgment, and the execution issued thereon was fair on its face, and such as would protect an officer in its execution. Its issue pending the appeal is, at most, but an irregularity, of which the defendant in the writ could have taken advantage by motion in the court from which it emanated. He having failed to question the regularity of the proceeding, acquiesced in the sale of his land, and no one else can question the validity of the same. The case cited is conclusive of this in every point it presents, and no error being perceived in the record, the judgment of the circuit court will be affirmed.

Judgment affirmed.


text:
    Rosa Challenor v. Patrick Mulligan.

      Filed at Mt. Vernon September 27, 1884.

    1. Practice—time in which to procure a return to a writ of error. The statute has prescribed no time within which a return to a writ of error shall be made by the clerk of the court to whom it is directed. The practice in that regard is regulated alone by the rules or practice of the court from which the writ issues.
    2. Same—effect of neglect to have record sént up. Under a rule of the Appellate Court requiring a plaintiff in error or appellant to file abstracts and briefs on or before the second day of the term unless the time is extended, and that on failure to do so the judgment or decree of the court below shall be affirmed, on a writ of error to the circuit court, when no return to the writ had been returned by the clerk by sending up the record at the second term of the Appellate Court, though service had been made on the defendant in error before the first term, an order of continuance at the second term of the Appellate Court was set aside and the decree below affirmed, without any rule having first been taken to bring up the record: Held, no error in affirming the decree complained of.
    3. Error—presumption in favor of action of lower court. Where the Appellate Court affirms a decree sought to be reversed on writ of error, on the ground of a neglect of the plaintiff in error to have a transcript of the record sent up at the second term after service of the scire facias, unless it is made to appear to this court that the Appellate Court has thereby violated some rule of practice, it will be presumed that court has acted properly, and its judgment will be affirmed.

      4. Appellate Court—power to prescribe rules of practice. By section 10 of the act creating the Appellate Courts, that court is required to conform to the practice of this court so far as regulated by the statute, so far as it is applicable to that court; but in other respects that court may prescribe and construe its own rules and regulate its own practice.
    5. Same—rule of practice held good. The twenty-sixth rule of the Appellate Court for the Fourth District provides that the plaintiff in error or appellee must file abstracts and briefs on or before the second day of the term unless the time shall be extended, and that on failure to do so the judgment or decree of the court below shall be affirmed: Held, that there being no statute governing in this respect, that court had the power to prescribe such rule, and might affirm for a failure to have a transcript of the record filed before the second term after the writ of error was issued.
    Writ of Error to the Appellate Court for the Fourth District.
    Mr. Wm. C. Kueffner, for the plaintiff in error:
    This was a proceeding commenced in the Appellate Court, to review, on writ of error, a decree in chancery that had been rendered by the circuit court of St. Clair county. The writ of scire facias had been duly served on the defendant, but the writ of error had never been served, and no transcript of the record had ever been filed in the Appellate Court. At the August term, 1882, the cause was at first “continued for service.” This order was subsequently, at the same term, set aside, “and the judgment of the court below was affirmed. ” This was error. At most, the writ might have been dismissed. Where, in case of a writ of error, no transcript has been filed, the proper order is a rule to file the transcript. The cause should be remanded to the Appellate Court for further proceedings. Strong v. Allen, 40 Ill. 43.
   Mr. Justice Walker

delivered the opinion of the Court:

It appears that there had been a proceeding in the St. Clair circuit court, in which plaintiff in error was complainant, and Mulligan was defendant. On a hearing, a decree was rendered against complainant. She thereupon sued out a writ of error from the Appellate Court for the Fourth District, and also a scire facias to defendant in error, to hear errors, which was duly served on the 16th of February, 1882, and it was returned. There was, however, no return by the clerk of the circuit court to the writ of error. At the February term, 1882, the cause was continued. At the August term the cause was continued for a return to the writ of error, but at a future day in the same term, on motion of defendant in error, the order of continuance was vacated, and the decree was affirmed, as no record, abstracts or briefs had been filed, as required by the rules of the court. The record is brought to this court, and it is urged that the Appellate Court erred in setting aside the order of continuance at the August term, 1882, and in affirming the decree of the circuit court.

It is urged that the Appellate Court might have dismissed the writ, but had no power to affirm the decree. The statute has prescribed no time within which a return to the writ shall be made by the clerk to whom it is directed. The practice in that regard is regulated alone by the rules or practice of the court from which the writ issues. The suit was pending in the Appellate Court, and that court was invested with jurisdiction of the person of defendant by service, and of the subject matter by the statute. In this case the practice was regulated by the twenty-sixth rule of that court. It provides that the plaintiff in error or appellant must file abstracts and briefs on or before the second day of the term unless the time shall be extended, and on failure to do so the judgment or decree of the court below will be affirmed on the call of the docket. Even in the absence of such a rule, the court having complete jurisdiction of the parties and subject matter, we are not prepared to hold that it was error to affirm the decree of the circuit court on such a default or failure to prosecute the suit. Plaintiff in error had failed for two terms to assign error, and had taken no rule on the clerk to make return to the writ of error, nor taken any other steps, so far as the record discloses, to obtain and file the record. The rule, however, by implication prescribed the time within which the record must be filed. It prescribed the time for filing abstracts and briefs, which presupposes that the record shall be on file at that time, and prescribes the affirmance of the judgment for a failure to comply with the rule. The court having the power, we will presume it was properly exercised, and the affirmance was under the power. Plaintiff in error has not shown that the affirmance of the decree was in violation of any rule of practice. Unless that is shown, the presumption is in favor of the regularity of the order. Nothing being shown against the regularity of this order, we must affirm it.

It is, however, urged, that under the case of Strong v. Allen, 40 Ill. 43, defendant in error should have taken a rule on plaintiff in error to file the record, before he could dismiss the writ. It will be observed that in that case the motion was entered at the return term, whilst in this case the motion was made at the second term. In this there is a broad difference in the cases,—so broad as to be material. Again, the order was entered under and in conformity with the rule of that court. It had the power to adopt the rule, although it may have differed from the practice of this court. So far as the practice of this court is prescribed by statute, it, under section 10 of the act creating that court, must conform to such practice, so far as applicable; but in other respects that court may prescribe and construe its own rules and regulate its own practice. This practice is not prescribed by statute or regulated by law, hence there was no error in entering the order complained of by plaintiff in error.

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

Judgment affirmed.


author: Mr. Justice Dickey

text:
    John A. Bruner v. Madison County.

      Filed at Mt. Vernon September 27, 1884.

    1. Officebs — compensation for official services — depends entirely upon the statute. Compensation for official services rendered in behalf of the State or for any public corporation, must rest alone upon statutory enactment or contract. Unless the statute has made provision for the payment for services required of an officer and performed by him, he can recover no remuneration for the same.
    2. Patjpebs — two systems, county and township support. Under the laws now in force in this State, two distinct systems are provided for the support of the poor, — one by the county at large, and the other by the several towns composing the county.
    3. Same — difference in the systems. The first imposes all the cost and expense attending the care and support of paupers upon the county, while the other places the entire charge and burden upon the several towns. In the first the overseer of the poor is required to report his acts to the county board, and act subje.ct to such restrictions and regulations as that board may prescribe. In the second he reports to the town auditors, and he is subject to the restrictions and regulations of his town. Under the first named system he is not entitled, as a matter of right, to any compensation for his services, while under the other he is entitled to pay.

      1. Overseer of the poor — compensation. By section 36, chapter 53, entitled “Fees and Salaries,” the overseer of the poor (who is also supervisor of his town) is entitled to receive two dollars per day when attending to town business out of town, and one dollar for town business in his town, to be paid from the town treasury when the service is for the town. When the town is wholly responsible for the care and support of its paupers, his services in looking after and providing their support are performed for the town, and are town business, and he is entitled to the pay named; but when the county is chargeable with pauper support, he is not rendering service for his” town, but for the county, for which the law has provided no compensation.
    5. Supervisor — is a county as well as a town officer. A supervisor, though elected as a town officer, is also made by law a county officer, as a member of the county board, which is invested with power to “manage the county funds and county business, except as is otherwise specifically provided.”
    6. Same — compensation as a county officer. By section 39 of the act relating to fees and salaries, the supervisor, as a member of the board of supervisors, is entitled to receive two dollars and fifty cents per day “for the time actually and necessarily engaged in the discharge of his duties as a member of such board, ” to be paid out' of the county treasury, and mileage (five cents each way) for necessary travel, “and no other allowance or emolument whatever. ” This per diem allowance is not restricted to the time actually engaged in attendance upon the sessions of the board, but may embrace time engaged as a member of a committee, or in the discharge of any other duty he owes his county as a member of the board entrusted with the management of its financial affairs. But in looking after the poor he acts as a supervisor, and not as a member of the county board.
    7. Judicial notice — of township system in a county. This court will take judicial notice of the fact that a county is acting under the Township Organization law.
    Appeal from the Appellate Court for the Fourth District;— heard in that court on writ of error to the Circuit Court of Madison county; the Hon. William H. Snyder, Judge, presiding.
    This was an action of assumpsit, brought by John A. Bruner, in the Madison circuit court, May 29, 1883, against the county of Madison. The declaration, after the caption, is substantially as follows:
    “John A. Bruner complains, etc., for that whereas, on, etc., at, etc., the defendant was indebted to the plaintiff in the sum of $500, for labor and services of the plaintiff, by him before that time bestowed in and about the business of the defendant, at its request. And the plaintiff avers that he was supervisor of Alton township, duly elected and qualified according to law, and it was his duty by law to take care of the paupers in and for said township; and plaintiff avers that in the discharge of such duty he performed the services aforesaid, by means whereof the defendant became indebted for such labor and service. The plaintiff avers that it is the duty of said defendant, by law, to take the care and custody of said paupers, and the plaintiff avers that a tax is levied and collected by law to provide for the care, custody and support of said paupers, and that said pauper fund, so raised by law, is paid into the county treasury of Madison county, and is under the control and authority of the said defendant; and the plaintiff avers that no tax is levied or collected by Alton township for the support of its paupers, or to pay any salary to supervisor for the care and custody of such paupers. And the said defendant, being so indebted, in consideration thereof, then and there promised said plaintiff to pay said sum of money on request, ” etc.
    To this declaration the defendant interposed a general demurrer, which the court overruled, and the defendant abiding by its demurrer, the court assessed the plaintiff’s damages at $510, and rendered judgment for that sum. On writ of error, the Appellate Court for the Fourth District reversed the judgment of the circuit court without remanding the cause, and gave final judgment against the plaintiff. The Appellate Court certified, under the statute, that the case involves a question of law of such importance, on account of collateral interests, as that it should be passed upon by the Supreme Court, and that “said question is, whether the declaration filed by the plaintiff disclosed a sufficient cause of action,” and that the Appellate Court was of opinion that no sufficient cause of action was disclosed, — and thereupon the plaintiff brings the case to this court by appeal, and assigns for error the ruling of the Appellate Court in reversing the judgment of the circuit court and refusing to remand * the cause.
    Mr. A. W. Hope, for the appellant:
    Section 14, chapter 107, of the Bevised Statutes, entitled “Paupers, ” makes counties, except those in which the poor are supported by the towns, liable for the support of the poor; and section 18 provides that “in counties under township organization, the supervisors of the respective towns shall be ex officio overseers of the poor of their towns.” Section 25 provides, that in all counties in which the poor are not supported by the towns, the overseers of the poor of such towns shall, at each regular session of the county board, etc., make a full report of all their actings and doings, etc. And by section 26 it is provided: “Upon such report being made, it shall be the duty of the county board to make the proper appropriations from the county treasury for the payment of the necessary expenses for the relief and support of the- poor. ”
    What expenses are meant, of such relief and support of the poor? Who affords relief? The supervisor, — ex officio overseer of the poor. Who must pay for such relief ? The county board must make an appropriation from the county treasury. By section 28 of the same chapter the county board is authorized to levy and collect a tax for the support of the poor.
    The supervisor is the agent of the county, and under the control of the county board, and his time and services in providing the relief or support of the poor are a part of the expense for which the board is bound to make an appropriation to pay. The care and support of the poor in Madison county is a county and not a town burden, which is admitted by the demurrer.

      Mr. J. H. Yager, for the appellee:
    Section 39, chapter 53, of the Bevised Statutes, entitled .“Fees and Salaries,” provides that a member of the board of supervisors shall receive two dollars and fifty cents per day for the time actually and necessarily engaged in the discharge of .his duties as a member of such board, and mileage, — no other compensation whatever.
    The first clause of section 130, of article 4, chapter 139, entitled “Township Organization,” provides that “the town clerk and supervisor shall receive for their services two dollars and fifty cents per day when attending to town business out of town, ” and one dollar and fifty cents for town business in their town. See, also, section 36 of act relating to fees and salaries.
    Section 125, chapter 139, is as follows: “The following shall be deemed town charges: 1. The compensation of
    town officers for services rendered their- respective towns, ” etc. The services sued for properly come within the scope of this clause.
    The supervisor, in his character of overseer of the poor, is never a county but always a town officer, and if entitled to compensation, must look to his town.
   Mr. Justice Dickey

delivered the opinion of the Court:

By section 1 of “An act to restore uniformity in the taxation of real and personal property, for all purposes, in the several counties and cities in this State,” passed in 1872, it was provided that all laws requiring any city to support and provide for its paupers, or assume liabilities or perform duties required of .counties by the general laws of the State, were repealed. This enactment has been held to apply to incorporated towns as well as cities. (Burke v. Monroe County, 77 Ill. 610.) It is conceded that the support of paupers in Madison county is a county and not a town charge, and this court will take judicial notice that such county is acting under the Township Organization law. -

This record, and the discussion of counsel, involve but two principal questions, viz: First, is the appellant, as supervisor and ex officio overseer of the poor, entitled by law to any compensation for services by him rendered in looking after the paupers in his town; and second, if so, is the county liable to him for such services.

It is doubtless true that compensation for official services rendered in behalf of the-State, or for any public corporation, must rest upon statutory enactment or contract. Various instances may be referred to, where duties, even new ones, have been imposed upon officers without any provision for remuneration being made. School directors are required to perform services and discharge important duties without any salary or other pay. It must be conceded that unless some provision is made by law for the compensation of overseers of the poor, from the county treasury, this action can not be sustained, and the judgment of the Appellate Court must be affirmed.

Under the laws now in force in this State, two distinct systems for the support pf the poor are provided for, — one by the county at large, and the other by the several towns composing the county. The first imposes all the costs and expenses attending the- care and support of paupers upon the county, as a county charge or burden, while the other places the entire charge and burden upon the several towns. In the one the supervisor, as overseer of the poor in his town, is required to report his action to the county board, and in the other to the town auditors. In the first he is required to act subject to such restrictions and regulations as may be ¡ire-scribed by the county board, while under the system of town support he is subject to restrictions and regulations of his town. By section 26 of the Pauper act, the county board, upon the filing of the overseer’s report, is required to make the proper appropriations for the payment of the necessary expenses attendant upon the relief and support of the poor. The time and services of some person in looking after the poor, investigating claims for relief or support, and taking the proper steps to grant aid, would seem to be necessary expenses “of such relief and support, ” and they are a proper county charge, if the law gives such person any compensation at all. By section 27, the town auditors, on such report to them, are required to audit all accounts, and “order payment of such expenses from the town treasury.” Under either system, expenses incurred by the overseer of the poor in removing a pauper or poor family to the poor-house, or returning a pauper to his home, vrould seem to be a proper charge against the county or town, whichever is liable for the care and support of the poor; and the same may be said in respect to the officer’s remuneration for his time and services, if he is entitled to recover any.

The supervisor, though elected as a town officer, is also a county officer, as a member of the county board. (Sec. 22, chap. 34.) By section 25, of chapter 34, the county board is invested with power to' “manage the county funds and county business, except as otherwise specifically provided.” Section 36, of chapter 53, relating to fees and salaries, provides that “the following named town officers shall be entitled to compensation at the following rates for each day necessarily devoted by them to the services of the town in the duties of their respective offices: The town clerk, supervisor and overseer of the poor shall receive for their services two dollars per day when attending to town business out, of town; one dollar for town business in their town. ” It is evident that this compensation is to he paid by the town, and if the services of appellant in looking after the poor in his town, and reporting his acts to the county hoard, were “services of the town, ” or related to “town business, ” it would seem clear that he would be entitled to the compensation named in the statute referred to. If the support of the poor were a charge upon the towns of Madison county, then appellant should he regarded as engaged in “town business,” and his services as done for his town, and in such case he would be entitled to have audited in his favor, by the board of town auditors, one dollar for each day engaged in the town, and two dollars while engaged in the service of the town beyond its limits. But we have seen that the burden of looking after and supporting paupers in the county of Madison is not a town but a county charge, and his town is not liable to compensate him for services rendered to the county in relation to affairs made by law “county business.”

It is suggested that if a supervisor, as overseer of the poor, is entitled to compensation by law in looking after paupers and poor persons in a county in which the system of town support prevails, he should be entitled to the same from the county where it is responsible for the expense of caring for and supporting the poor, and that it can hardly be supposed that the legislature intended to make a distinction in this regard; that if it has provided for compensation from the smaller body for services rendered the same, it would not intentionally provide none for precisely the same services performed for the larger body, and that it is unreasonable to conclude that the legislature has required a supervisor to bestow his time and services in caring for the poor, in a town of many thousand inhabitants, for no remuneration whatever. There is force in these suggestions, but can the courts properly supply defects in legislation? Section 39 of the act relating to fees and salaries, provides that a member of the board of supervisors shall receive two dollars and fifty cents per day “for the time actually and necessarily engaged in the discharge of his duties as a member of such board of supervisors, to be paid on the order of the board dut of the county treasury, and mileage (five cents each way) for necessary travel, and no other allowance or emolument whatever. ” The language here used does not necessarily, or even by implication, restrict this per diem allowance to the time actually engaged in attendance upon the sessions of the board. It may embrace time engaged as a member of a committee, or in the discharge of any other duty he owes his county as a member of the board-entrusted with the management of its financial affairs. But in taking charge of the poor of his town he does not perform services as a member of the board, or act ■ as such. The law imposes this duty upon him as a supervisor, and not as a member of the county board. A supervisor in a county under township organization, where the care of the poor is upon the county, while engaged, as an overseer of the poor, in looking after and providing for relief or support of the poor of his town, is not entitled by law to any specific compensation from the county.

Upon a consideration of the whole case we feel compelled to affirm the judgment of the Appellate Court.

Judgment affirmed.


author: Mr. Justice Sheldon

text:
    Morris R. Locke et al. v. William Davison et al.

      Filed at Springfield September 27, 1884.

    1. County — power to fund indebtedness or issue interest bearing bonds to take up county orders. A county board has no authority of law to fund county indebtedness, or issue interest bearing bonds for money with which to take up outstanding county orders and obligations, without a vote of a majority of the legal voters of the county; and with such vote they are limited to eight per cent interest on such bonds.
    2. Same — general powers of county board — statute construed. The statute which provides that the county boards of the several counties shall have power “to manage the county funds and county business, except as otherwise specifically provided,” does not give such boards an absolute and unlimited power of management of county funds, when there is an absence of any specific provision of law to the contrary. It means no more than a power to manage the county funds and county business according to law.
    3. Same — injunction, to prevent payment of interest on bonds illegally issued. Where a county board issued bonds, bearing ten per cent interest, with which to liquidate outstanding county orders, the payment of interest on the same was enjoined by the circuit court at the suit of the tax-payers of the county, and this court affirmed the decree.

      4. Statute — specifying one mode, as exchidi/ng an/y other. Where a statute points out a particular course to be pursued to effect a particular purpose, no other course can lawfully be pursued.
    5. Chanceby — affirmative relief not on answer. On bill filed by taxpayers of a county to restrain the county board from paying certain interest bearing bonds illegally issued by that body, for money with which to liquidate outstanding county orders, the circuit court enjoined the county board from paying interest on such bonds, but' failed to decree that the principal sum should be returned, and this failure was assigned for error: Held, that the decree was not erroneous in this respect, as there was no cross-bill to warrant the giving of such affirmative relief to the bondholders.
    6. Same — imposing equitable terms in granting relief. On bill by taxpayers to restrain a county board from misappropriating county funds to the payment of interest upon bonds issued by such board in violation of the statute, in granting the relief sought it was held, that the rule, he who seeks equity must do equity, did not apply to the complainants, as they did not owe the debt, and that there was no error in not requiring them to pay the principal, with legal interest, as a condition to granting the relief sought. Had the county sought to be relieved from the payment of the stipulated interest, the rule might have been applied.
    Writ of Error to the Appellate Court for the Third District ; — heard in that court on appeal from the Circuit Court of Jersey county; the Hon. Lyman Lacey, Judge, presiding.
    Messrs. Brown, Kirby & Bussell, for the plaintiffs in error:
    The court erred in refusing to dissolve the injunction. The bonds were good as to the principal sum, even if illegal as to the interest. When a good thing and a had thing are put together in one grant, it may stand as to the thing which is good. Addison on Contracts, (Morgan’s ed.) sec. 299; Bank v. Chilicothe, 7 Ohio, 36.
    The cases of County of Hardin v. McFarlan, 82 Ill. 138, and Hall v. Jackson County, 95 id. 352, were based upon the statute in force at the time the bonds were issued. (Laws of 1863, p. 41.) This case is distinguished from those. By the act approved April 14, 1875, counties were empowered to fund their indebtedness.
    The right to demand interest is placed on the ground that the county board made its contract to pay it, and obtained the money on the faith of such agreement. The court should have required' the county to do equity, by ordering the payment of the money loaned to it, with six per cent interest. (Mapps v. Sharpe & Co. 32 Ill. 13; Ferguson v. Sutphen, 3 Glim. 547.) But the bill should have been dismissed, as the board had, under the then existing statutes, power to make the contract it did. Rev. Stat. 1874, chap. 34, secs. 24, 25.
    Prior to the acts referred to, this court has held that municipal corporations could contract to pay interest without express statutory authority. City of Galena v. Corinth, 48 Ill. 423; Aurora v. Paddock, 80 id. 263; West v. Madison County, 82 id. 205; Madison County v. Bartlett, 1 Scam. 67 ; Pike County v. Horsford, 11 Ill. 170 ; Jackson County v. Rendleman, 100 id. 379.
    Messrs. Hamilton & Slaten, and Mr. A. A. Goodrich, for the defendants in error:
    A corporate body can not do any act, or make any contract, or incur any liability, not authorized by the statute or charter by which it is created. Cook County v. McCrea, 93 Ill. 236; City of Champaign v. Harmon, 98 id. 491; Schott v. People, 89 id. 195; People v. Village of Crotty, 93 id. 180.
    It is contended that the board has the power it exercised, under the Bevised Statutes of 1874, (chap. 34, sec. 25,) “to manage the county funds and county business, except as otherwise provided by law.” In reply, we refer to Cook County v. McCrea, 93 Ill. 236.
    The question of the power of the board to issue interest bearing orders, is settled adversely to plaintiffs in error in
      County of Hardin v. McFarlan, 82 Ill. 138. See, also, Laws of 1877, p. 145.
    If the orders were otherwise legal, which we deny, they are usurious, and a fraud upon the tax-payers, and for that reason are void as to the interest, (Payne v. Newcomb, 100 Ill. 611,) and the plaintiffs in error would be only entitled to recover for the amount of principal due, after application of the interest received, in liquidation of the principal of the indebtedness. Driscoll v. Tannock, 76 Ill. 154; Hawhe v. Snydaker, 86 id. 197; Reinback v. Crabtree, 77 id. 183; Mitchell v. Lyman, id. 525.
    The Supreme Court of this State has held repeatedly that municipal corporations, such as counties, are not required to pay interest, except upon an express agreement to pay such interest. South Park Comrs. v. Dunlevy, 91 Ill. 49; Madison County v. Bartlett, 1 Scam. 67; County of Pike v. Horsford, 11 Ill. 170; Hall v. Jackson County, 95 id. 352.
    Defendants in error were under no equitable obligation to do equity, as the debt the payment of which they sought to enjoin was not theirs.
   Mr. Justice Sheldon

delivered the opinion of the Court :

In the spring and summer of 1877, by reason of floods and other extraordinary occurrences, the expenses of the county of Jersey, in this State, were more than double the ordinary expenditures of the county, and in September of that year the county board found itself without sufficient funds, arising from the tax levy of 1876, to meet its requirements, and was compelled to anticipate the levy made in the year 1877, and collectible in the year 1878. To meet the emergency, the board applied to James A. and Morris R. Locke, and made with them an agreement that the latter should furnish the sum of $8000, for the purpose of liquidating outstanding county warrants, and the board to pay them ten per cent interest, semi-annually, and to issue interest bearing orders, payable September 10, 1878, for the money.- The Lockes were to have $160 for their services in attending to the business, and to have issued to them eight orders, for $1000 each, due September 10, 1878, and bearing ten per cent interest, payable semi-annually. In pursuance of the arrangement, the Lockes purchased and took up, at their face value, orders of the county, issued at the September term, 1877, of the county board,' for current expenses of the county, to the amount of $8058,38. In compliance with its contract, the county board issued nine county orders to the Lockes, in lieu of those taken up under the contract, — one for $58.38, and eight for the sum of $1000 each, bearing ten per cent interest, payable semi-annually, and each due September 10,1878. The small order was paid, and at the March term, 1878, the county board issued a county order for $402.91, in payment of interest due at that time to the Lockes, which order was paid and cancelled by the county on April 29, 1878. On May 6, 1878, Davison, and other tax-payers of the county, filed their bill in equity, to enjoin the county authorities from paying these county orders issued to the Lockes, charging that the orders were issued without authority of law, and were void. Upon hearing, the circuit court found that the issuing of such interest bearing orders was without authority of law, so far as the agreement to pay interest is concerned, and by decree enjoined the payment of any interest on the orders. On appeal to the Appellate Court for the Third District, the decree was affirmed, and the Lockes sued out this writ of' error.

We regard the decision in County of Hardin v. McFarlan, 82 Ill. 138, as conclusive of this ease in respect of the power of the county board to issue interest bearing bonds or orders in lieu of ordinary county orders taken up and surrendered. In that case, county orders had been surrendered by parties holding them, as in this case, and interest bearing bonds were issued in lieu thereof, by order of the county board. It was held, that as there was a statute then in force, (Laws 1863, p. 41,) entitled “An act to enable counties owing debts to liquidate the same, ” that statute provided, fully, the mode, and the only mode, by which the debts of a county could be paid, and that the county court had no lawful authority to issue the interest bearing bonds in that case, and that the interest money on the bonds, which was sued for, could not be recovered. In the attempt to distinguish the present case from that, it is said the statute therein referred to was not in force at the time the orders here in question were issued, and that since that decision the powers of counties and county boards in this respect have been greatly enlarged. But there were other statutes in force at the time the interest bearing orders in this case were issued, which provided fully the means to which the county board could resort to pay any indebtedness exceeding seventy-five cents on $ 100 valuation of property, or to fund the outstanding debt of the county, viz., sections 27 and 28, chapter 34, of the Revised Statutes of 1874, and the act approved and in force April 27, 1877. (Laws 1877, p. 158.) This statute of 1877 provides, that in all cases where any county has issued any bonds or other evidences of indebtedness for money, or has contracted debts which are the binding, subsisting, legal obligations of such county, and the same remain outstanding and unpaid, bonds may be issued to fund such indebtedness, upon a vote of a majority of the legal voters of such county; and that statute limits the rate of interest on bonds issued to liquidate outstanding indebtedness, to eight per cent per annum. The principle applied in the former case was, that where a statute points out a particular course to be pursued to effect a particular purpose, no other course can be lawfully pursued. That principle, we think, applies with even stronger force under these statutes, which were in force when these interest bearing orders were issued, than under the statute of 1863, in force at the time of the issuing of the bonds in the case of County of Hardin v. McFarlan.

The enlarged powers upon the subject, referred to as having been given to counties and county boards since the decision in that case, are: “Bach county shall have power * * * Third, to make all contracts, and do all other acts in relation to the property and concerns of the county, necessary to the exercise of its corporate powers.” “The county boards of the several counties shall have power * * * Second, to manage the county funds and county business, except as otherwise specifically provided.” (Rev. Stat. 1874, chap. 34, secs. 24, 25.) This last provision came under the consideration of this' court in Cook County v. McCrea, 93 Ill. 236, where we said in regard to it: “This can not be understood to give to county boards the absolute and unlimited power of management of county funds, where there is the absence of any specific provision of law to the contrary. It hardly means more, we think, than a power to manage the county funds and county business according to law. ”

We find nothing in these subsequent supposed enlargements of the powers of the county board, or any change of law, which should cause a variance from the decision in the McFarlan ease, or interfere in the least with its applying fully to and governing the present case, under the law in force now and at the ‘time of issuing these interest bearing orders. . We do not perceive that it makes any difference, as is contended, that there had been a previous contract for the furnishing of the money for the purpose, and that it was in pursuance of such antecedent contract that the money was furnished to take up common county orders, and interest bearing orders issued therefor. Whether with or without any contract beforehand, the transaction was one of funding ordinary county orders not bearing interest, by issuing interest bearing orders therefor, which we hold the county board had no authority to do except upon a vote of the majority of the legal voters of the county, — and even then the interest could not be more than eight per cent, when here it is made ten per cent, and $160 paid additional.

It is urged that the decree is erroneous in not requiring that the principal sum should be returned. There was no cross-bill filed to warrant the giving of such affirmative relief. The relief asked by the complainants was granted but in part, restraining payment only of any interest.

But it is insisted that if the court saw fit to enjoin the payment of any interest, it was inequitable to deny plaintiffs in error all compensation for the use of their money. The arrangement made was doubtless, under the evidence, a beneficial one for the county, and it would be equitable that the plaintiffs in error should be allowed lawful interest upon the money they advanced; and if this were a case (as, if the county were the complainant,) where the rule could be applied that he who seeks equity must do equity, and relief might be granted only upon the condition of complainant doing equity, we would think the relief granted here should only be upon the equitable terms of complainant paying lawful interest, in analogy to the rule in that respect which prevails when one seeks relief in equity against an unlawful, usurious contract. But the county here, — the debtor, — is not complaining. The county board is content, and willing to perform its contract. The complainants are only taxpayers) and are seeking relief both against the county authorities and the creditors, to prevent misappropriation by the former of public moneys for the benefit of the latter. As the complainants — mere tax-payers — do not owe the money themselves, it would not be a just condition to impose upon them that they should pay the lawful interest on the money. Belief upon such a condition would be none at all. It would be better to submit to the increase of tax which would be occasioned by the payment of the orders in full, as contracted to be paid. It being impracticable, then, in such -a case as this, to apply the equitable condition of relief, — of payment of lawful interest, — we do not see that there was error in the decree in omitting it.

The judgment of the Appellate Court must be affirmed.

Judgment affirmed.


author: Mr. Justice Walker,

text:
    Harry E. Holmes v. The City of Mattoon.

      Filed at Springfield September 27, 1884.

      1. Constitutional law — law exempting municipal corporations from giving appeal bond. The act of 1879, allowing municipal corporations to appeal without giving an appeal bond, as in other cases, is not unconstitutional, as being either a local law or special legislation.
    2. State — rights of, in respect to suits — liability for costs. The State can not be sued without its consent, nor can its power to sue and prosecute suits in all their various stages be limited or controlled, except by its sovereign power, properly exercised. It has the undoubted right to prosecute and defend all suits and maintain all legal proceedings, without cost or other restrictions.
    3. Municipal corporations — as State instrumentalities, may have same exemptions as the State. Public municipalities, such as counties, cities, villages, towns and school districts, and all officers suing for or defending the rights of the State, or acting for or instead of the State in respect of public rights, being only instrumentalities of the State, may constitutionally be authorized to sue without, the payment of costs, or conforming to all the requirements imposed by the law upon natural persons or corporations formed for private gain.
    Writ of Error to the Appellate Court for the Third District ; — heard in that court on appeal from the County Court of Coles county; the Hon. Charles Bennett, Judge, presiding.

      Messrs. Craig & Craig, for the plaintiff in error,
    contended that the act of the legislature exempting municipalities from giving a bond on appeal was in violation of the constitution, prohibiting local and special legislation, — citing Const. of 1870, art. 1, see. 22; Bull v. Conroe, 13 Wis. 266; Durkee v. Janesville, 28 id. 471; 2 Yerg. 554; Tate v. Bell, 4 Yerg. 208; Jones v. Perry, 10 id. 77; Mayor v. Dearmon, 2 Sneed, 122; Howe v. Railroad Co. 1 Coldw. 78; Vansant v. Waddell, 2 Yerg. 258; Officers v. Young, 5 id. 320; Busch v. Newberg, 10 N. Y. 375; Holden v. James, 11 Mass. 396; Hill v. Town of Sunderland, 3 Vt. 507.
    Mr. T. L. McGrath, for the defendant in error,
    contended that the law was valid, as the city, in prosecuting under the ordinance, is not acting for private gain, but for the public good.
   Mr. Justice Walker,

delivered the opinion of the Court:

In this case there was an appeal by the city to the Appellate Court for the Third District. In that court a motion was made to dismiss the case, because the city had, under the act of 1879, (Sess. Laws, 222,) appealed without giving bond. It is now urged that section 71, as amended by that act, is unconstitutional, because it relieves all municipal corporations from the law requiring appellants and plaintiffs in error, on obtaining a supersedeas, from giving bond.

It is urged that section is violative of the constitution, because it is special or local legislation. Nothing could be more manifest than it is not local, because its operation extends to every portion of the State. This is too manifest to require the slightest notice. Had not cases been referred to that to some extent favor the position of appellant that it is special legislation to allow such appeals, we should have been inclined to hold that the proposition could not be raised to the dignity of a constitutional question, and have dismissed it without consideration. We apprehend that no one will or can seriously contend that the State, or the sovereign body exercising the functions of a State, can be sued without its consent and permission; nor can its power to sue and prosecute suits in all of their various stages be limited or controlled, except by its sovereign power, properly exercised; nor can the State, representing sovereignty, be rendered liable for costs or damages in prosecuting or defending suits or legal proceedings, unless it so expressly declares by constitutional provision or legislative enactment. The State, whatever its form or its powers, has the unquestioned right, as representing the sovereign power, to prosecute and defend all suits and maintain all legal proceedings without cost or other restrictions, unless imposed by fundamental law, or self-imposed by legislative enactment. These aré axiomatic principles, always admitted and never controverted. From and before the organization of the State it has ever prosecuted and defended suits, criminal and civil, without liability for costs, damages or forfeitures, and has prosecuted writs of error without bonds or any restrictions whatever, — and it is from the fact that sovereign power is not liable to be sued or put to expense in the assertion of its rights, and enforcing the laws for the protection of the governed against violence, wrong and oppression, and to protect them in the enjoyment of their rights of life, liberty and general security. It is bélieved that in no government, in ancient or modern times, has it been required to give bond for the payment of the costs of litigation, before bringing suit, or an appeal, or on error. Such a proposition would be unheard of in the history of government, and no one having the slightest knowledge of the principles of government will contend that any such restriction exists. This being true of the State government, it is necessarily true of all its officers, agents and instrumentalities, while employed in seeking the rights of the government in the courts of justice. Hence, officers suing for or defending the rights of the State are acting for and in the stead of the State, and to that extent not only may but should be permitted to do so on the same terms and for the same reasons the State is permitted to sue for or defend its rights.

Again, municipalities, such as counties, cities, villages, towns, school districts, and, in the language of the act, “all other municipal corporations, ” and the corporations of all charitable, educational, penal or reformatory institutions under the patronage and control of the State, and all public officers when suing or defending in their official capacity for the benefit of the public, are the instruments of the State to carry out its powers for the public welfare, and in exercising their powers and enforcing public rights they act as agents, and may have extended to them the same exemptions in suits as belong to the State. Municipal bodies act for the State, and to the extent authorized exercise the powers of government, and when so exercising such powers they may, when so authorized, do so without conforming to all of the requirements imposed by the practice on natural, or artificial persons created for the purposes of business or gain. The construction contended for would compel the State itself to give bond on appeal, or the granting of a supersedeas, in cases where the suit was for the benefit of the State and public welfare. Such a purpose could never have actuated the persons who framed and adopted the constitution.

But the question is not entirely new in this jurisdiction. In the case of The People v. Wallace, 70 Ill. 680, it was insisted that an act which required, as a prerequisite to an appeal from a judgment for taxes, that the person desiring to appeal should deposit the amount of the judgment in money with the treasurer, was unconstitutional; but the validity of the act was upheld and enforced. Again, in the case of Andrews v. Ramsey, 75 Ill. 598, the validity of the same'law was sustained. It was there said: “While the right of appeal from the final determination of county courts is conferred by the constitution, yet it can only be exercised under such conditions as may be imposed by the legislature. The language, ‘Appeals and writs of error shall be allowed from the final determination of county courts, as may be provided by law,’ (Const, sec. 19, art. 6,) is too plain to admit of doubt that it is purely a question for the legislature to determine how and upon what terms such appeals shall be granted.” It will be observed that case goes much further than we are required to go in this case. That law related to and regulated appeals in cases of judgments for taxes differently from private suits or other suits by the People; and inasmuch as it embraced a class coextensive with the State, the law was held to be general, and it was sustained, although persons against whom judgment for taxes had been rendered, were compelled to submit to terms and conditions to procure an appeal in such cases as were not imposed on other persons in perfecting appeals in a different class of cases. Those cases are clearly conclusive of this question. The cases referred to by' appellant do not announce the doctrine contended for by him. Were they under our constitution, they, by strained inference, might be supposed to lend some support to the doctrine; but they are under different constitutions, of the provisions of which we are not informed. We therefore presume they are correct, and required by their fundamental law; but if so, it does not follow that they apply to our organic law.

The judgment of the Appellate Court must be-affirmed.

Judgment affirmed.


text:
    The St. Louis and Sandoval Coal and Mining Company v. The Sandoval Coal and Mining Company.

      Filed at Mt. Vernon September 27, 1884.
    1. Judgment and TmasssE, — jurisdiction—not void for error alone. If a court has jurisdiction of the parties and subject matter of the controversy, and the party against whom the judgment or decree is rendered has had either actual or constructive notice of the pendency of the suit, no mere error can lender the judgment void; but where jurisdiction is wanting, either as to the subject matter or the parties, the judgment is a nullity.
    2. Same — when void, no rights can be based on it. A judgment or deoree in a case where the court fails to acquire jurisdiction of the party against whom it is rendered, or of the subject matter, being absolutely void, all acts performed under it are void, and no right can be divested or acquired under the same.
    3. Same — not assailable, collaterally, for errors. Where the court rendering a judgment or decree has jurisdiction both of the subject matter and of the persons of the parties, a mere error or irregularity can not be taken advantage of collaterally.
    4. Same —jurisdiction over defendant corporation — void service. On a bill filed to dissolve an insolvent corporation, and for the appointment of a receiver, the summons against the corporation was served by leaving a copy thereof with one of the complainants, a director of the defendant corporation: Held, that the service was void, and gave the court no jurisdiction over the corporation, and its decree authorizing the receiver to sell the property of the defendant corporation was a nullity, and might be attacked collaterally.
    5. Receives — of corporation — may be appointed before court acquires jurisdiction over corporation. The court may, on a proper showing, appoint a receiver to take charge of the assets of an insolvent corporation, to save the same from destruction or waste, before acquiring jurisdiction to adjudicate upon the rights of such corporation. In such case the receiver may be authorized to hold the property until the rights of the parties are determined. Placing property in the hands of a receiver is in the nature of an equitable attachment, whereby the court, through its officer, acquires the custody of such property.
    6. Same — corporation may sue, by leave of court, after the appointment of receiver. After a valid decree appointing a receiver for a private corporation, actions may be brought in its name, by leave of the court making such appointment, against any one except the receiver, to try the legal title to property claimed by such corporation.

      7. Same — legal title — how vested in. In the absence of any statutory-provision on the subject, real estate can not be vested in the receiver except by a conveyance to him.
    8. Decree — acts done under void decree not validated by a subsequent decree. The sale of the property of an insolvent corporation under a decree in a suit in equity without service on the defendant corporation, is void, and fails to divest it of its property; and a subsequent decree, rendered after a reversal of the former one, can not relate back and render the void sale valid. The latter decree-can only sustain a sale made after its rendition and upon its authority.
    9. Corporation — may sue after decree dissolving it. A private corporation, after a decree of dissolution, remains in being for the purpose of settling up its affairs and having its property applied in the payment of its debts. The statute continues its corporate existence for two years after its powers have expired, by limitation or otherwise, for this purpose.
    10. Pleading — nul tiel corporation — when proper.. After a decree dissolving a private corporation and appointing a receiver, leave of court was given it to bring an action of ejectment to try the title to real estate claimed and held adversely. The defendant pleaded nul tiel corporation: Held, that the plea was inapplicable to such a ease, and that under it the defendant could not take advantage of the decree dissolving the corporation.
    Writ of Error to the Circuit Court of Marion county; the Hon. Amos Watts, Judge, presiding.
    Mr. B. G-ratz Brown, Mr. Upton M. Young, and Mr. Alexander Young, for the plaintiff in error: •
    The decree and sale were absolutely void, for the reason of a want of service of process on the defendant corporation. St. Louis and Sandoval Coal and Mining Co. v. Edwards, 103 Ill. 472.
    Where there is no service on a minor defendant, and his appearance is entered by a guardian ad litem, a decree against the minor is void for want of jurisdiction, and a sale under such decree passes no title. Chambers v. Jones, 72 Ill. 275 ; Grand Tower Mining and Trans. Co. v. Schirmer, 64 id. 106; Haywood v. Collins, 60 id. 328.
    A sale under a void judgment divests no title. Chase v. Dana, 44 Ill. 262; Campbell v. McCahan, 41 id. 45; Johnson v. Baker, 38 id. 98.

      A judgment or decree is void unless the court has jurisdiction of the person of the defendant and of the subject matter. White v. Jones, 38 Ill. 159; Curtis v. Brown, 29 id. 228; Pardon v. Dioire, 23 id. 572; Mulford v. Stalzenback, 46 id. 306.
    The application for permission to sue was properly made. Kerr on Receivers, 167; Degroot v. Jay, 30 Barb. 483.
    If a receiver is merely authorized to sell property like a master, he takes no title. Union Trust Co. v. Weber, 96 Ill. 346.
    A receiver can not sue without express authority from the court. Screven v. Clark, 48 Ga. 41.
    Where a receiver is not authorized, either by statute or by the order of the court from which he derives his appointment, to sue in his own name, he can not do so, but must bring the action in the name of the corporation or party in whom the right of action was before the appointment of the receiver. Manlove v. Burger, 38 Ind. 211; Yeager v. Wallace, 44 Pa. St. 294; Boothe v. Clark, 17 How. 331.
    Real estate is vested in the receiver only by a conveyance to him. Chatauqua Bank v. Risley, 19 N. Y. 369.
    It is the settled policy of this State, at least so far as domestic corporations are concerned, that upon their dissolution, however that may be effected, they shall, nevertheless, be regarded as still existing for the purpose of settling up their affairs and having their property applied for the payment of their just debts. Life Association of America v. Fassett, 102 Ill. 315; Rev. Stat. chap. 32, secs. 10, 25.
    A railway corporation is not dissolved by the road going into the hands of a receiver, but it remains in being, capable of suing and being sued. People v. Barnett, 91 Ill. 422.
    Mr. H. C. Goodnow, and Mr. M. Schíeffer, for the defendant in error,
    contended that if the court had jurisdiction to appoint a receiver, its proceedings, even if erroneous, can not be called in question collaterally. High on Receivers, sec. 346.

      A receiver is an officer of the court, acting under its orders and directions. He has no other powers, in the first place, than those conferred upon him by the order appointing him. His discretionary powers are very limited. His duties are prescribed by the court. Whenever it is for the interest of the parties concerned, the court will order the sale of the property, pending litigation. High on Receivers, sec. 192; Hooper v. Winston, 24 Ill. 353; Union Trust Co. v. Weber, 96 id. 346; Wincock v. Turpin, id. 135; Otis v. Gross, id. 612.
    It is sufficient for a purchaser of real estate sold by a receiver, to see, first, that there was a suit in court in which the court appointed a receiver; second, that the receiver was authorized to sell; third, that he sold in pursuance of such authority; fourth, that the sale was confirmed by the court; and fifth, that the deed describes the property sold. High on Receivers, sec. 636.
    By the decree in February, 1883, and even by the original order appointing a receiver, the corporation was dissolved and incapacitated to sue. Potter on Corporations, sees. 718, 719.
    The plaintiff can not maintain this action, first, because the plea of nul tiel corporation is sustained; second, because if, as plaintiff claims, the sale by the receiver is void, then the property in controversy is still in the custody of the court, and in the rightful possession of the receiver or his lessee; and third, because the defendant is the legal owner, and in the rightful possession of the property, by virtue of its purchase from the grantee of the receiver, who was ordered to sell the same by the court having legal power to make such order.
   Mr. Justice Dickey

delivered the opinion of the Court:

This was an action of ejectment, brought by the St. Louis and Sandoval Coal and Mining Company, against the Sandoval Coal and Mining Company, to recover the possession of a coal mine and its appurtenances, situated at Sandoval, Marion county, Illinois, the declaration alleging title in fee in the plaintiff. The defendant pleaded the general issue, and a special plea “that the plaintiff was not at the commencement of said suit, and is not now, a corporation, as by the said writ and declaration is above supposed.” The parties waived a jury, and the cause was tried by the court. The finding was for the defendant, and overruling a motion for a new trial, the court rendered judgment against the plaintiff, and the plaintiff appeals to this court.

There is no- question but that the title to the property involved in this action was in the plaintiff at the time of the sale of the same by the receiver, and still is, unless that sale, and the decree in the cause in which the sale was made, passed the title to the purchaser under whom the defendant claims. The plaintiff company was, in December, 1877, duly incorporated under the laws of this State for the purpose of mining coal near Sandoval, Illinois, the capital stock to be $50,000. The corporation procured conveyances in fee of the property in controversy,1 and received by donation the mining right to considerable land in the vicinity, upon condition that the company would, within two years, sink a shaft to a paying vein of coal, and operate a coal mine there. On June 27, 1878, the corporation having incurred an indebtedness to one Frank Seymour, under a contract for sinking a shaft, and being insolvent, as was alleged, Francis H. Edwards, Isaac Main, and others, stockholders, and said Seymour, as a creditor, filed their bill in the Marion circuit court, against said company (the plaintiff herein) and all the stockholders and officers thereof who were not complainants, charging the above facts, with others, — such as, a waste of assets, by fraudulently giving to one Townsend $10,000 in stock for nothing, — and praying for the appointment of a receiver, to take and sell the property of the company and pay its debts. Summons was served on the company by delivering a copy of the same to said Isaac Main, one of its directors, the other officers being non-residents, as was alleged in the hill. The return to the summons showed that neither the president, clerk, secretary, superintendent, general agent, cashier nor principal of the company was found. This was the only service upon the corporation. Other defendants were all, either actually or constructively, served with process, or by publication. No one appearing for the corporation, a decree pro confesso was entered against it, as well as the other defendants not answering. The court found the allegations of the bill to be substantially true, and entered a decree dissolving the corporation, and appointed George W. Herod receiver, to take possession of and dispose of the property of the company, make conveyances to purchasers, and pay the debts. The receiver took possession and sold all of the property and mining rights to said Isaac Main, for $200, and made him. a deed, which sale was reported to and approved by the court, and Main afterwards sold and conveyed the property to the defendant company in this action. On writ of error the decree was reversed in all things except as to the appointment of the receiver, and the cause remanded. (St. Louis and Sandoval Coal and Mining Co. v. Edwards, 103 Ill. 472.) When the case came again to the circuit court, plaintiff in error answered the bill. The cause was again heard at the February term, 1883, of the circuit court, and a decree was again entered dissolving the corporation and confirming the appointment of the receiver, but no other sale of the property was made under this decree. At the August term, 1882, leave was given to the plaintiff to sue for said property. Demand was made for possession, and a suit in ejectment was brought, which was dismissed at the February term, 1883, and this action was brought to the August term without any further leave, and after the decree dissolving the corporation.

The validity of the receiver’s conveyance of the property made under the decree of the circuit court appointing him, depends upon the fact whether that court had acquired jurisdiction of the defendant corporation, for the law is well settled that if the court has jurisdiction of the parties and subject matter of the controversy, and the party against whom the judgment or decree is rendered has had either actual or constructive notice of the pendency of the suit, no error can render the judgment void; but when jurisdiction is wanting, either as to the subject matter or parties, the judgment is a nullity. (Mulford v. Stalzenback, 46 Ill. 306.) The judgment or decree in such a case being void, all acts performed under it are void, and no right can be divested by it or acquired under the same. Campbell v. McCahan, 41 Ill. 45; Johnson v. Baker, 38 id. 98; Chambers v. Jones, 72 id. 275; Grand Tower Mining and Trans. Co. v. Schirmer, 64 id. 106; Haywood v. Collins, 60 id. 328; Chase v. Dana, 44 id. 262. As a general rule a judgment is void unless the court has jurisdiction of the defendant and of the subject matter of the suit. White v. Jones, 38 Ill. 159; Curtiss v. Brown, 29 id. 229; Pardon v. Dwire, 23 id. 572. But when the court has jurisdiction both of the subject matter and of the persons of the parties, a mere error or irregularity can not be taken advantage of collaterally. Adams v. Larimore, 51 Mo. 130; Wenner v. Thornton, 98 Ill. 156; Harris v. Lester, 80 id. 307; Wing v. Dodge, id. 564; Hernandez v. Drake, 81 id. 34.

The case of St. Louis and Sandoval Coal and Mining Co. v. Edwards, supra, is decisive of this. In that case it was held that the service of the summons upon the defendant corporation by leaving a copy thereof with one of the complainants in the suit, although a director in such corporation, was void, and gave the court no jurisdiction over the corporation; and we adhere to the ruling in that case. The court having no jurisdiction of the party whose property was sought to be subjected to sale, its decree authorizing its sale is a nullity, • and may be attacked collaterally.

It is urged that the court had at least legal power to make the order appointing the receiver, and authorize him to take possession of and sell the property of the corporation, and this court has so held in the case last above mentioned; and it is claimed that if the facts alleged in the bill were sufficient to give the court jurisdiction of the subject matter, and authorized it to appoint a receiver, its proceedings in making such appointment, even if erroneous, can not be called in question in a collateral action. It is a sufficient answer to say that the mere power to appoint a receiver pendente lite, to preserve property, does not include the power to authorize him to sell and convey real estate. The court may, on a proper showing, appoint a receiver to take charge of the assets of an insolvent corporation, and save the same from destruction or waste, before acquiring jurisdiction to adjudicate upon the rights of such corporation. In such case the receiver may be authorized to hold the same until the rights of the parties are settled and determined. The appointment of a receiver in such case is in the nature of an equitable attachment, whereby the court acquires, through its officer, the custody of property or assets, to be retained until it has acquired jurisdiction. The plaintiff in error, at the time of the sale, was not a party to the suit. The sale as against it was void. It could not be divested of its title by proceedings to which it was not a party. The subsequent decree could not relate back to and render valid that which was void. It could only sustain proceedings of sale made after the valid decree was made, and upon its authority.

After a valid decree appointing a receiver for a private corporation, actions may be brought in its name, by leave of the court, against any one except the receiver, to try the legal title to property. It remains in being for the settling up of its affairs and having its property applied in the payment of its debts. (Life Association of America v. Fassett, 102 Ill. 315.) The statute relating to private corporations continues their corporate existence for two years after their powers have expired, by limitation or otherwise, for the purpose of collecting their debts and dispo~ing of their property. (Rev. Stat. chap. 32, sec. 10; Ramsey v. P. M. and M. F. Ins. Co. 55 Ill. 311.) Real estate is vested in a receiver only by a conveyance to him, in the absence of any statutory provision on the subject. (Chatauqua Bank v. Risley, 19 N. Y. 369.) The court that appointed th~ receiver and decreed the dissolution of the corporation, having authorized suit in its name to try the title to land claimed by it, the plea of nul tiel corporatiom is inapplicable, and under it the defendant can not take advantage of the decree for the dissolution of the ~orporation.

It is further claimed, that if the sale and conveyance by the receiver are void, then the property in controversy is still in the custody of the court, and in the rightful possession of the receiver or his lessee. It is sufficient to say that the defendant does not hold possession of the property for the receiver, or as his lessee, but as his own.

It follows from what has been s~id, that the court erred in finding ~gainst the plaintiff, and the judgment will be reversed.

Judgment ~ever~ed.