author: Mr. Chief Justice

text:
    John B. Miller et al. v. Theodore A. Shaw et al.

      Filed at Ottawa June 21, 1882.

    1. Recording Law-—deed first recorded must prevail. Where a deed of trust on certain real estate given to secure an indebtedness of the grantor is recorded before any other deed made by him is filed for record, a regular foreclosure of the trust deed by a sale that would bar the grantor’s equity of redemption, will cut off and bar all claim of title of parties claiming under a deed from such grantor, which was recorded after the trust deed.
    2. Admission—asserting title under trust deed—admission thereby. If a party procures a conveyance of real estate from one whose title is derived from a sale of the premises under a trust deed, and asserts title thereunder, that is an admission that the foreclosure of the trust deed and the trustee’s deed to the purchaser were regular and effective to pass the estate of the grantor in the trust deed.
    3. Declaration of trust—destroyed by sale under prior deed of trust. If there be a valid sale and conveyance of land by a trustee under a power in the deed of trust to him, such action will cut off all rights of third parties under a declaration of trust made by the grantor in the trust deed after the recording of the trust deed.
    4. Evidence—recitals in trustee’s deed. Where a trustee assumes to sell land under a power in a deed of trust, the recitals in his deed are made by statute evidence of the facts so recited therein.
    5. Secondary evidence—abstracts of title where deeds and records are destroyed. Where original deeds, as well as the record books in which they were recorded, have been destroyed by fire, and neither party is able to produce copies of such deeds, resort may be had to secondary evidence to prove their contents, and by the act of 1872, in relation to lost or destroyed records of conveyances, abstracts of title made by persons engaged in abstracting titles, are made evidence in all courts of law or equity, and may be received to prove the contents of such deeds.
    6. Trustee’s deed—whether showing sale of several, or only one lot. Where a trustee under a deed of tPhst conveying several lots, after a sale by him, conveys to the purchaser all such lots, and in one part of his deed recites the sale by him of one lot, this will not defeat his deed for the other lots when from the whole deed and all its recitals it sufficiently appears he made sale of all the lots conveyed.
    7. Laches—in avoiding sale under deed of trust. Where lots of a person were sold under a deed of trust given by him, and he acquiesced in the trustee’s sale and conveyance up to the time of his death, which was more than seven yéars after the sale, during which time others acquired title under that sale, and no claim was set up to the property by the heirs of the grantor for more than twenty years after the sale, it was held, that both the grantor and those claiming under him were estopped to deny that the trustee’s sale and deed were valid, and that they were barred by their laches.

    8. So, where a trustee, under a power in a trust deed, sold and conveyed all the lots embraced in the trust deed, more than six years before the grantor’s death, and the grantor knew of such sale, and that the purchaser claimed all the lots, the latter frequently applying to the grantor to raise the money with which to pay the indebtedness, or to take back the property, which he failed to do, and finally the grantor told the purchaser to keep the property and do the best he could with it, as he could not do anything more, this was held such an acquiescence in the sale as to estop him and those claiming under him from asserting title to the lots, and that his laches was a bar to any equitable relief.
    9. Married woman—deed of her separate property wnder law in 1867. All that was required by the laws in force in 1867, to enable a married woman to convey her real estate, was that she and her husband should execute the deed, after which she should appear before a proper officer and acknowledge the same in the mode pointed out in the statute, and such deed being acknowledged by the husband, or his execution thereof proven according to law, it was effectual to pass the title to the wife’s separate property.
    10. In the beginning of a deed for the separate real estate of a wife, where the parties are first stated, “A B, in her own right, wife of O D,” was named as party of the first part, and her husband was not otherwise named in that clause of the deed as the party making the grant, but in the clause releasing the homestead the husband was named as “party of the first part, ” and so in the covenanting and attesting clauses, and he also signed and acknowledged it as his and his wife’s deed: Held, that even if the statute of 1845 required the husband to join in the granting clause, that fact was sufficiently shown by the deed, taking the whole of it together.

      Appeal from the Circuit Court of Cook county; the Hon. William H. Barnum, Judge, presiding.
    Messrs. Rosenthal & Pence, for the appellants :
    If a trustee or attorney in fact executes a deed, the person claiming title under such deed must produce the power or authority under which such deed was executed. Jackson v. Roberts, 11 Wend. 425; Elliott v. Pearce,, 20 Ark. 508; Tolman v. Emerson, 4 Pick. 162; 2 Cowen H. & E. notes to Phillips on Evidence, p. 471, note 429; Hinman v. Pope, 1 Gilm. 131; Bybee v. Ashby, 2 id. 151; Atkins v. Hinman, 2 id. 437; Penrose v. Griffith, 4 Binn. 231; Jackson v. Anderson, 4 Wend. 482.
    Recitals in a deed are no evidence .of anything against parties who do not claim under such deed. Penrose v. Griffith, 4 Binn. 231.
    It is not an admission that the title is in a party because the true owner takes a deed from him, or gets up such outstanding claim. Owen v. Robbins, 19 Ill. 545.
    By the recitals in the trustee’s deed from Strauss to Culbertson, only lot 3 was sold, while all six of the lots in question were conveyed. As to the lots not sold, the deed conveyed only the legal title, leaving the equity of redemption in Doolittle not foreclosed. Walwork v. Derby, 40 Ill. 527.
    The indebtedness fell due October 5, 1857, and the same is barred, and the presumption of law is, that it has been paid, and the title is left free of all incumbrance. Mester v. Hauser, 94 Ill. 433.
    The husband not joining the wife in the conveying part of the deed, it was void as to both, and conveyed no title to Ward. It was held in Hogan v. Hogan, 89 Ill. 427, that the mere consent of the husband in the same writing did not fulfill the statute. The law is, that the husband must be a grantor with the wife. Leavitt v. Lamprey, 13 Pick. 382; Lufkin v. Curtis, 13 Mass. 222; Catlin v. Ware, 9 id. 219;
      Jewett v. Davis, 10 Allen, 70; Bruce v. Wood, 1 Metc. 542; Warner v. Peck, 11 R. I. 431; McFarland v. Febiger, 7 Ohio, 337; Percell v. Goshorn, 17 id. 123; Kern v. Peeler, 4 Jones, (N. C.) 226; Gray v. Mathis, 7 id. 502; Hammond v. Thompson, 56 Ala. 591; Agricultural Bank v. Rice, 4 How. 241; Lawrence v. Heister, 3 Harris & J. 371; Baxter v. Bodkin, 25 Ind. 172; Cox v. Blackf, 7 Blackf. 410; Hedges v. Ward, 15 B. Mon. 106.
    A party may claim title from several sources, and he may show that he holds the paramount title from any one of these sources. Owen v. Robbins, 19 Ill. 555 ; McClurken v. McClurken, 46 id. 230; Blight v. Rochester, 7 Wheat. 535; Osterhout v. Shoemaker, 3 Hill, 513; Watkins v. Holman, 16 Pet. 54; Bigelow on Estoppel, 251, note 3, pp. 260, 335.
    Messrs. Grant, Swift & Brady, for the appellees :
    Appellants are barred by the gross neglect and laches of their Ancestor and their own. Hamilton v. Lubukee, 51 Ill. 415; Munn v. Burges, 70 id. 604; Dempster v. West, 69 id. 613; Winchell v. Edwards, 57 id. 45; Walsh v. Brennan, 52 id. 193.
    That there was a power of sale in the trust deed sufficiently appears from the abstract of title and the recitals in the trustee’s deed. Graham v. Anderson, 42 Ill. 515; Weld v. Rees, 48 id. 437; Strother v. Law, 54 id. 413; Burr v. Borden, 61 id. 389.
    It is claimed that the trustee’s deed to Strauss shows that only one out of the six lots thereby conveyed was sold by the trustee. Taking the whole deed together, no such inference can be drawn. In construing deeds, etc., the entire instrument, including its recitals and covenants, must be taken together, and the intention thus gathered must prevail. Walker v. Douglass, 70 Ill. 445; Peckham v. Paddock, 36 id. 38; Swift v. Lee, 65 id. 336; Alton v. Illinois Transportation Co. 12 id. 38.

      Messrs. Schuyler & Follansbee, also for the appellees :
    The proof tends to show that the trust deed to Scoville contained a power of sale. If, either through the proof offered, -it appears there was a power of sale, or a presumption, even, is raised of that fact, no matter how defectively the same was executed, the appellees, as remote bona fide purchasers, will be protected, and it therefore becomes unnecessary to show anything beyond the mere fact that such a power existed. Gunnell v. Cockerill, 79 Ill. 79; Hoag v. Gibbons, 95 id. 45; Wilson v. South Park Gomrs. 70 id. 46; McNary v. Southworth, 58 id. 473; Hamilton v. Lubukee, 51 id. 415; McHaney v. Schenk, 88 id. 357; Bush v. Sherman, 80 id. 160; Munn v. Burges, 70 id. 604; Kellogg v. Wilson, 89 id. 357; Farras v. Payne, 73 id. 82; Pratt v. Stone, 80 id. 440; Mulvey v. Gibbons, 87 id. 367; Jenkins, Assignee, v. Pierce et al. 98 id. 646.
    A. J. Miller, and those.claiming under him, are estopped from questioning the validity of the foreclosure of cither trust deed, by standing by for years seeing another hold himself out as owner under such foreclosure, and deal with it as his own, and allow the property to change hands for valuable considerations. Cochran v. Harrow, 22 Ill. 345; Jenkins v. Pierce et al. 98 id. 646.
    Mr. Edmund S. Holbrook, also for the appellees:
    Even admitting defects of conveyances affecting appellees’ title, it is sufficient to reply the laches of appellants, and the fact that appellees are bona fide purchasers without notice. Higgins v. Curtiss, 28 Ill. 28; Cox v. Montgomery, 36 id. 398; Hamilton v. Lubukee, 51 id. 415; Winchell v. Edmunds, 57 id. 46; Burr et al. v. Borden et al. 61 id. 390; Conover v. Musgrave, 68 id. 58; Wilson v. South Park Comrs. 70 id. 46; Munn v. Burges, id. 606; Farrar v. Payne et al. 73 id. 82; Gunnell v. Cockerill, 79 id. 79; Bush v. Sherman, 86 id. 160; Heinander v. Drake, 81 id. 34; McNab v. Young, id. 12;
      Kœster v. Burke, id. 439; Williams v. Rhodes, id. 571; Gunnell et al. v. Cockerill, 84 id. 319; Fairman v. Peck, 87 id. 156; Mulvey v. Gibbons et al. id. 367; McHaney v. Schenk, 88 id. 357; Kellogg v. Wilson, 89 id. 357; Gibbons v. Hoag, 95 id. 47; Jenkins, Assignee, v. Pierce et al. 98 id. 646.
    These conveyances by the trustee are not void, for the sale by the trustee, however wrongful, or whether he perforins or not, transfers the legal title. Reese v. Allen, Admr. 5 Gilm. 236, and notes; Anderson v. Graham, 42 Ill. 514; Dawson v. Hayden et al. 67 id. 52; Kœster v. Burke, 81 id. 439.
   Mr. Chief Justice

Scott delivered the opinion of the Court:

The original petition in this case was filed by Louis A. Doolittle, since deceased, in the circuit court of Cook county, under the act of 1872, commonly known as the “Burnt Becords act, ” and was to confirm in him the title to lots described in the petition. To his petition, which was filed on the 1st day of June, 1874, a number of persons claiming to be the owners of the property, or at least claiming an interest in it, were made parties. Some of these defendants answered, and filed cross-petitions, in which they ask to have the title to the lots described, or some of them, confirmed in them. Afterwards, September 4, 1877, the parties prosecuting the present appeal, and who describe themselves as heirs at law of Andrew J. Miller, deceased, filed a cross-petition, in which they asked to have confirmed in them the title to all the lots in controversy. Issues were joined on the answers to the original and cross-petitions, and on the hearing the court found the title to one lot to be in Shaw, Honoré and Heywood, the title to another to be in Dale, and the title to all of the other lots to be in Grubb, who had succeeded to the title that was in John L. Beynolds in his lifetime. The Miller heirs bring the case to this court on appeal. Since the original petition was filed Louis A. Doolittle has died, and the interest ’that he claimed in the property is not now pressed on the attention of the court in behalf of his representatives. Excepting lot 18, Doolittle never claimed more than to hold the legal title to the other lots in trust for the heirs of Andrew J. Miller. The real contest is between the heirs of Miller and the other defendants claiming the paramount title to the property.

It may be remarked in the outset that the claim to the property put forth by the parties prosecuting this appeal has few, if any, equitable considerations in its support. The property was pledged by their ancestor for the payment of borrowed money. There is no pretense the indebtedness for which it was pledged was ever paid, other than by the conveyance of the property itself to the creditor by the trustee of the debtor. It passed to the 'creditor at its full value at the time, and has since been claimed by such creditor and his grantees, who have since paid all taxes and assessments upon it, as bona fide owners would do. More than twenty years have elapsed since the trustee conveyed the property to the creditor of Andrew J. Miller, on default being made in the payment of his indebtedness. Now it is said, the indebtedness secured is barred by the Statute of Limitations, and as there are some defects or want of adequate power in the execution of the deeds of trust that secured such indebtedness, or in the execution of other deeds in the chain of title, the heirs of the deceased debtor, as counsel are understood to present their claim, ask to have the title to the property confirmed in them, free from any incumbrance placed on it by their ancestor, notwithstanding so much delay has intervened before the assertion of any title by them, and that the property has since become very valuable, and passed into the hands of bona fide holders for very large considerations.

The common source of title claimed by the respective parties is John 0. -Miller, who had a deed to all the lots from Francis A. Hoffman. The claimants in this appeal insist upon title to the property from three distinct sources: First, through John C. Miller, in whom it is conceded the title was, and who conveyed it to Andrew J. Miller, and from him, through mesne conveyances, the title to the property is said to have come to George N. Williams, who conveyed it to them; second, through Louis A. Doolittle, by a declaration of trust; and third, from L. Martha Sheldon, by deed of conveyance directly to them. On the other hand, defendants in this appeal deraign title to the property through a trust deed from John C. Miller to Scoville, which was executed and recorded prior to John C. Miller’s deed to Andrew J. Miller; second, under Scoville, through a trustee’s deed, from Strauss; and third, under Strauss, through a prior deed from L. Martha Sheldon.

It is apparent the trust deed from John C. Miller to Scoville being oldest in point of time, and first on record before any other deed made by him, if that trust deed was so foreclosed as to cut off the equity of redemption that remained in him before his conveyance to Andrew J. Miller, it would bar all claim of the present claimants to the property through their father to George N. Williams, and from Williams to them, and also all claim from their father, save what they might take, if anything, through the declaration of trust in their favor by Louis A. Doolittle. Whatever title, if any, claimants obtained under the deed from L. Martha Sheldon, it was by purchase of the property, and not as heirs of Andrew J. Miller. Claiming under the latter deed is an admission the foreclosure of the trust deeds to Scoville and Strauss were regular, and were effective to pass the equitable estate of their ancestor in the property. Two questions are then presented: First, whether claimants take any interest in the property as heirs at law of Andrew J. Miller; and second, whether they obtained any title by their purchase from L. Martha Sheldon. Of course, if the title passed under the deed from Strauss to Culbertson, the subsequent declaration of trust by Doolittle, the grantor in the trust deed to Strauss, that he held the legal title for the Miller heirs, is a matter of no consequence, and that branch of the case will not be further remarked upon.

It mil be necessary to state the facts a little more fully in order to a clear understanding of the objection taken to the deed of Scoville to Greenebaum, which is the real source of the title claimed by the defendants in this appeal, and upon which much stress is laid in the argument on behalf of the pqrties challenging its validity. The trust deed made by John C. Miller and wife to George Scoville, bears date October 17, 1856, and was given to secure a note made by Andrew J. Miller, payable to his own order, nine months after date, at the office of Swift, Ransom & Co., in New York, for the sum of $3000, with interest after due, at ten per cent per annum. It was recorded on the 18th day of October, in the same year. This deed covers the property in -controversy, and as has been seen, is the first in defendants’ chain of title. Default was made in the payment of the note, and on the application of the holder, Scoville advertised the property and sold it to Henry Greenebaum for $3100, and made him a deed for it, bearing date August 5, 1857, and which was duly recorded in the proper office. The originals of these deeds were both destroyed by fire in October, 1871, so that neither party is able to produce the originals, or a copy of either deed. It was necessary therefore to resort to secondary evidence to ascertain their contents, and under the act of 1872 in relation to lost or destroyed records of conveyances, abstracts of title made by persons engaged in that business are admissible in evidence in all courts of law or equity. The objection taken to the deed from Scoville to Greenebaum is, that the trust deed from Miller to Scoville contained no power of sale authorizing the trustee to make a sale of the property that would cut off the grantor’s equity of redemption. This, it is thought, is a misapprehension of the evidence. The recitals in the deed from Scoville to Greenebaum are quite fully set forth in the abstract introduced, and which is made evidence of the facts it contains,s by the statute. It is recited that John C. Miller and his wife executed to Scoville, as trustee, a trust deed on the property, to secure the note of Andrew J. Miller, and in default of payment application was made by Swift, Ransom & Co., the legal holders, to Scoville, to sell the premises for the purposes in such deed expressed, and that in pursuance of such application a sale of the premises had been made by Scoville, after the same had been advertised in a public newspaper, and that at such sale Henry Greenebaum bid off each lot at a certain price, and in consideration thereof Scoville, as such trustee, conveyed the lots to the purchaser. There is some parol evidence tending to show the trust deed to Scoville did in fact contain the usual power of sale, but that may be disregarded as not entirely satisfactory. Regarding only the evidence found in the abstract of title, it seems impossible for any one to read it without being satisfied the Scoville trust deed did contain the usual power of sale. The recitals it is shown the deed contained make that impression on the mind, and no reasoning, however subtle or confidently asserted, can remove that impression. It is inconceivable that any one having any business sense would make application to the trustee to sell the trust property to pay his debt, when the trust deed conferred no power on the trustee to make such sale, and it is still more unreasonable to believe any trustee would assume to make such a sale under a deed, presumably in his possession, that gave him no authority to act in the premises. The acts of these parties must have a reasonable construction, and especially when considered a quarter of a century after they transpired, when the evidence of what they did can at best be only imperfectly produced. It certainly ought to be understood these parties acted with the same common sense possessed by business men transacting such matters. Unless the Scoville trust deed contained the usual power of sale that would enable him to sell the property as he did, as the attorney of the grantor, to pay the note secured, the acts of all parties concerned are meaningless and senseless. But construing the trust deed as containing a power of sale, then the conduct of the parties is consistent and intelligible, and conforms to the conduct of sensible business men in such matters. Why did the holders of the note make application to the trustee to sell the premises, for the purposes in the deed expressed, if the deed contained no such authority ? Or why did the trustee advertise the property for sale in a public newspaper, unless it was in conformity with the provisions of the trust deed authorizing a sale to be made? Giving to these acts of the trustee and the holders of the note, and other parties concerned, that reasonable construction that would ordinarily be placed on the conduct of business men, it seems impossible to resist the conclusion forced upon the mind by the proof introduced, that the trust deed contained a power of sale. Any other conclusion would be most unreasonable, and could only be reached by placing the most absurd construction upon the conduct of men that must be presumed to have had ordinary business sense. It follows that under the Scoville deed the property passed absolutely to Henry Greenebaum, and hence the equity of redemption that had been in John C. Miller, and all persons claiming under him, was forever barred.

Passing to the consideration of another branch of the case, it appears that on the same day he obtained the deed from Scoville, Henry Greenebaum conveyed the property to Louis A. Doolittle, and Doolittle, on the same day, conveyed it by deed of trust to Samuel Strauss, to secure the note of Andrew J. Miller, bearing the same date, and payable to Elias Greenebaum, sixty days after date, for $3100, with ten per cent interest, which trust deed contained a warrant of attorney authorizing a sale of the property for the payment of the note in case it was not paid at maturity. It is apparent the transaction was by the consent of all the parties interested, and was for the personal benefit of Miller, that he might secure that which was equivalent to an extension of his former loan. Default was made by Andrew J. Miller in the payment of this second note, and on the application of the holder the- trustee (Strauss) advertised the property for sale, and at the sale Culbertson, who had become the holder and owner of the note, bid in the property, and received a trustee’s deed from Strauss conveying all the lots to him. An objection to the sufficiency of the deed from Strauss to Culbertson is insisted upon, but if it shall be ascertained that deed is effectual to pass the title to Culbertson, it must be conceded that mesne conveyances from him placed the absolute title in fee simple to the property in L. Martha Sheldon.

The original deed from Strauss to Culbertson is in evidence, and there can be no misunderstanding as to what it contains. The defect pointed out to the deed is, that although all the lots in controversy were conveyed by the trustee to Culbertson, the recitals show that only the “first tract,” viz: lot 3, was bid off by him. The objection is hypercritical in the extreme. Parol evidence given shows that all the lots were ■in fact bid off by Culbertson at the trustee’s sale; but all such evidence may be rejected, and still it sufficiently appears, when all the recitals of the deed are considered together, as they should be, that all of the lots were sold to Culbertson. It is idle to talk about the deed having any other meaning consistent with the common understanding of the language used in the deed to express what was done.

But the decision, so far as the appealing claimants insist upon title from their father, Andrew J. Miller, may be placed on another ground. His claim, whatever it may have been, was barred by what the law calls laches, before his death, and certainly his heirs will not be permitted to assert a claim barred .in the lifetime of their ancestor. It will be remembered the deed from Scoville to Greenebaum was made in August, 1857, more than twenty years before these claimants filed their cross-petition asking the court to confirm the title to the property in them. It will also be remembered that Andrew J. Miller did not die until September 2, 1864, which was more than seven years after the date of the deed of Scoville to Greenebaum. It can not be denied that Andrew J. Miller acquiesced in the making of that deed, for it was, as has been seen, made for his benefit, and, under the circumstances, presumably with his consent and others interested, and since others have acquired title in good faith under it he will be estopped to deny it was a valid deed.

As respects the deed from Strauss to Culbertson, it was made April 30, 1858, which was more than six years before the death of Andrew J. Miller. He knew of the sale of the property to Culbertson, and that he claimed all the lots under his deed from Strauss. He was frequently applied to by the purchaser to raise the money with which to pay his indebtedness, and take back the property. This he failed to do, and finally he told Culbertson he would have to take the property and do the best he could with it, as he could do nothing more. It would be most improbable to suppose the parties were talking about the “first tract, ” lot three. No doubt is entertained that they were talking concerning all the lots embraced in the deed, the ownership of which Miller well knew Culbertson was claiming under the trustee’s deed to him. What Miller did was an acquiescence in the sale and an abandonment of the property. It does not appear he ever afterwards set up any claim to any of the lots. The doctrine of laches, as applicable to the facts of this case, is stated by this court in Sherman v. Bush, 80 Ill. 160, where it is said: “Unreasonable delay, not explained by equitable circumstances, has always been declared evidence of acquiescence in the sale, and a waiver of all mere irregularities. A party will not be permitted to delay to enable him to speculate on the chances of an appreciation in values of the property, and elect to avoid the sale only when it will be profitable to do so. He must make his election at the earliest practicable moment. ” The ease cited has many features in common with the one being considered, as respects the laches of the party claiming to be the equitable owner of the property. Default had been made in this case, as in that, in the conditions of the trust deed, and all that remained to the ancestor of the appealing claimants, under the most favor- ' able construction, was the equity of redemption, of which he might have availed had the alleged defects existed in the sales made by his trustees. Belief in no view could be had except in a court of chancery, and upon terms that should be just to all parties. At the trustee’s sale the property brought its full value, and the evidence shows most conclusively no great speculation could have been anticipated, shortly after the latter sale, by a redemption of the property. If what was done by Miller and others interested could be treated as a redemption of the property from the sale made by Scoville, the evidence is full to the point Miller expressly refused to make any further effort to. redeem the property from the sale made by Strauss, but in fact abandoned it to his creditor. Since then the property has increased many times in value, and the heirs of the alleged equitable owner deem it desirable now the sales and conveyances may be avoided, and as the indebtedness secured has long since been barred by the Statute of Limitations, that they may have the title to the property confirmed in them free from all incumbrances, This accords with no sense of right and justice. Applying to the facts of the case the doctrine of laches, as may be done, it is plain the ancestor of claimants, at the time of his death in 1864, could not have asserted any claim to the property, and certainly his heirs will not be permitted to assert a claim that he could.not do.

It has been seen that whatever title Culbertson had in the property, passed to L. Martha Sheldon by a regular chain of conveyances, and assuming, as is warranted by both the law and the evidence, the title in her was unassailable, either by. the former equitable owner, if now living, or by his heirs' since.his death, the remaining questions to be considered are,' whether that title passed to defendants in this appeal by her-deed of February 8, 1867, or to the present claimants by her. deed of June 22, 1877. This latter deed was made since the> original petition in this cause was filed, and was for the> nominal consideration of fifty dollars. It is a quitclaim deed, and contains no covenants.

Mrs. Sheldon, at the time of the making of the deed of February 8, 1867, to Ward, under which defendants deraigm title, was a married woman, living with her husband, Seth Sheldon, Jr., and the defect said to exist in the deed is that: her husband did not join with her in the granting clause' of: the deed so as to pass the title to her separate property, as: this was. The statute then in force in relation to convey-', anees of real estate by a married woman, provided when any husband and wife residing in this State shall wish to convey' the real estate of the wife, it shall and may be lawful for the husband and the wife, she being above the age of eighteen years, to execute any grant, bargain, sale, lease, re-lease, feoffment, deed, conveyance or assurance in law whatsoever, for the conveying of such lands, tenements and heredita-; ments; and if, after the executing thereof, such wife shall appear before some judge, or other officer authorized to take acknowledgments of such instruments, and acknowledge the same, after having been made acquainted with its contents, by such officer, and such deed being acknowledged or proved according to law as to the husband,"shall be as effectual in. law as if executed by such woman while sole and unmarried: That which this statute requires to be done to enable the wife to convey her separate property is, that she and' her. husband shall execute the deed, and after that she shall, appear before a proper officer and acknowledge the same in the mode pointed out in the statute, and such deed being acknowledged or proved according to law by the husband, it will be as effectual to pass the title to the wife’s separate property as the deed of an unmarried woman would be to convey her property. All this was done in this case. Both Mrs. Sheldon and her husband, Seth Sheldon, executed the deed to Ward, and afterwards she appeared before a proper officer and acknowledged it in conformity with the statute, and the acknowledgment of her husband to the deed being according to law, that seems to be all the law requires to be done to make the deed effectual to pass the title to the wife’s separate estate.

But if more is required, and it shall be held the statute is imperative the husband shall join with the wife in the granting clause of the deed, it may be said, when the whole deed is read together, it sufficiently appears he also joined with her in the granting clause of this deed. It is true that in the beginning of the deed, where the parties to it are first stated, it is said, “L. Martha Sheldon, in her own right, wife of Seth Sheldon, Jr.,” is the party of the first part, and her husband is not otherwise named in that clause of the deed as the party making the grant, but in the clause of the deed releasing the homestead the husband is named as being “party of the first part, ” and so also in the covenanting clause of the deed he is again named as “party of the first part, ” and the same is true as to the attestation clause of the deed. It will be noticed that in the covenanting clause of the deed, where the husband is mentioned as “party of the first part” with the wife, such party (that is, the husband and wife,) warrant that at the time of the making of the deed they were well “seized of the premises above conveyed”—that is, by the granting clause of the deed—“as of a good, sure, perfect, absolute and indefeasible estate of inheritance, in law and in fee simple, and have good right, full power and lawful authority to grant,"bargain, sell and convey the same, in manner and form aforesaid.” Who is it that is seized of the premises above “conveyed," and has “lawful authority to sell and convey, in manner and form as aforesaid?” It is and can be no other than the “party of the first part,” the grantors in the deed, of which the husband and wife both say the husband is one. It is three times repeated the husband is a party of the “first part” mentioned in the deed, and to hold by construction he is not a party of the “first part” who are grantors in the deed, is to disregard what the husband and wife have both covenanted he is. It is obvious to any one reading the whole deed together, the husband executed the deed with his wife as grantor to pass the title to the wife’s separate property, and the deed being acknowledged in conformity with the statute, it was effectual in law to pass the title to the grantee. As the deed of Mrs. Sheldon and her husband to Ward is the prior one in date and of record, and as that title passed by mesne conveyance to defendants in this appeal, it follows their title is paramount, and must prevail over the second deed from her to the other claimants.

The decree of the circuit court will be affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Walker

license: Public Domain

text:
    The St. Louis and Iron Mountain Railroad Company v. Russel M. Larned.

      Filed at Ottawa June 21, 1882.

    1. Carrier—liability beyond its own line of conveyance. While it is true that a railroad carrier may by contract restrict its liability to its own line, there is no doubt that it may also extend its liability beyond its own line.
    2. So, where a railroad company in its own wrong shipped a lot of cotton from its depot in Arkansas, to Waterville, in the State of Maine, beyond the terminus of its road, and on the application of the agent purchasing the cotton, gave him a bill of lading containing a. printed stipulation restricting its liability to its own line of road, naming the number of bales, and containing this .entry, written in a blank: “To be' forwarded from Waterville, Maine, (where the cotton is now lying) at consignee’s expense. All charges for transportation to that point, and necessary charges, to be paid by him, ’’—and the pral evidence showed it was to be transported to Putnam, Connecticut, it was held, that the company was liable to the assignee of the bill of lading, the consignee, for the value of the cotton, on account of its non-delivery at Putnam.
    3. Same—which of two carriers liable. An agent for eastern parties bought cotton in Arkansas, which he left at the defendant’s railroad depot, taking receipts for the same, but gave no orders for its shipment, and the pulroad company, without any authority from such agent, shipped the sajne to Waterville, Maine, where another company—the Maine Central Railroad Company—delivered the same to a person who was not in fact entitled to it. 'On learning the facts the defendant railroad gave a bill of lading, agreeing to transport the cotton to the person who was entitled to it, in Connecticut, at the consignee’s cost and expense, which was not done, the person receiving the cotton refusing to give it up, claiming it was bought for him. The agent drew a draft on his principal, to which he attached the bill of lading, properly assigned, which w’as paid by the principal, and the latter brought suit against the defendant railroad for the value of the cotton, and recovered. It was contended that the consignee should have sued the Maine Central railroad, and not the defendant: Held, that while he might have waived the defendant’s contract, and have sued the' other company for a conversion, or the person receiving the cotton, he was under no obligation to do so, and that the recovery against the defendant was warranted.
    4. Same—estoppel to assert facts that would defeat transfer of property by an assignment of a bill of lading. While it may be that property in the adverse possession of another is not transferable so as to pass the title, yet where a railroad company gives a bill of lading reciting that the property is then lying in a depot at a certain place, and agrees to forward the same to the consignee, and others advance money on the faith of such bill of lading, which is assigned by the shipper, the railroad company will be estopped, as against such persons, from showing that at the time of giving such bill of lading, and its indorsement, the goods were in the adverse possession of another person, so as to defeat an action brought by the consignee so advancing money on the bill of lading.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Mr. Charles H. Wood, for the appellant.
    Mr. E. C. Darned, and Mr. A. M. Pence, for the appellee.
   Mr. Justice Walker

delivered the opinion of the Court:

It appears that one G-. T. Potter, in the years 1879 and 1880, was engaged in Arkansas in the purchase of cotton for Lockwood & Co., of Waterville, in Maine, and appellee, of Providence, Rhode Island, and other eastern manufacturers. They furnished him money, and he purchased the cotton and delivered it to appellant, at its depot in Texarkana, when receipts or tickets were given to him as each separate lot was delivered. When he wished to make a shipment he returned the tickets, and a bill of lading was given him. He thereupon drew on the consignee for the value of the cotton thus shipped, and attached the bill of - lading and obtained the money on the draft. In this manner he raised money to pay for the cotton he purchased. Having cotton in the depot for which he held tickets, the freight agent by mistake shipped fifty bales to Waterville, which were intended to be shipped to Earned, at Providence. When Potter came to ship it to Earned he heard of the mistake, but being informed that it was still at Waterville, it was agreed that the railroad company would have it reshipped to Putnam, Connecticut. Thereupon the railroad company gave Potter .a through?* bill of lading, using an ordinary printed blank, with all of the terms and conditions, but writing in the undertaking to so deliver it. This bill of lading was assigned to Earned, attached to a draft drawn on him- and sent forward, and the draft was paid. The railroad company failed to make delivery. Earned was informed the cotton was at Waterville, but on inquiry it was found that the last carrier, the Maine Central Railroad Company, had delivered it to Lockwood & Co. On demand they refused to deliver it to Earned, and he sued appellant for a failure to deliver according to the terms of its bill of lading. A trial was had in the Superior Court of Cook county, resulting in a verdict and judgment in favor of plaintiff. The case was removed to the Appellate Court, the • judgment was affirmed, and defendant appeals to this court.

It is urged that railroads may, by express contract, limit their liability to loss on their own road, and against loss occurring beyond the terminus of their own line, and that the bill of lading in this case contained a restriction of that kind. Admitting this bill of lading does contain such a stipulation, after naming the number of bales of cotton shipped, it contains this: “To be forwarded from Waterville, Maine, (where the cotton is now lying) at consignee’s expense. All charges for transportation to that point, and necessary charges, also to be paid by him. ” This was written m a blank in the bill of lading. While it is true that a railroad carrier may restrict its liability to its own line, it can not be denied that it may • extend its liability beyond its own line. It in this ease did in terms agree to forward the cotton from Waterville, and the oral evidence shows it was to Putnam, Connecticut. The company thereby undertook to transport this cotton from Waterville to Putnam. It is no answer to say the cotton was not there. It had been put in their depot and custody to be held for shipment, and they, of their own wrong, and without authority or orders from the holders of their receipts, had sent it to Waterville, and they were bound to return it to Potter, at Texarkana, or respond in damages, had he demanded it. But he waived that right, and agreed that they might deliver it at Putnam, and this they undertook to do by this contract, and the company was bound to perform the undertaking.

It is urged that the suit should have been against the Maine Central Railroad Company. If ah action would lie against it for a wrong delivery, it is in favor of appellant. Potter did not place the cotton in its possession, nor did he authorize or direct it to be done. It was placed in its possession by appellant, of its own wrong. Then why require Potter or his assignee to sue that company ? It may be that he might, if he chose, have waived the contract of appellant, and sued that company for a conversion of the property, but he was under no obligation to do so. The same is true as to suing Lockwood & Co., as neither he nor his assignee placed the cotton in their hands.

It is claimed that the assignment of the bill of lading did not transfer the title, because it was in the adverse possession of Lockwood & Co., who claimed to own it at the time the assignment was indorsed. Concede this to be true under ordinary circumstances, appellant is estopped to deny that the cotton was at Waterville. The company say in its bill of lading that the cotton is lying at that place, and the bank who received the bill of lading with the assignment, and advanced the money on it, we may presume, would not have done so had it known this statement was untrue, and the cotton was in the possession of an adverse claimant, and could only be recovered at the end of a law suit. It was by this statement of appellant that each successive assignee was induced to advance money on it, and it would be a fraud on them to permit appellant to escape liability by showing that this statement on which they acted was untrue. It presents a clear case requiring the application of an estoppel. It is in the fullest sense an estoppel upon appellant.

It is insisted that the damages were assessed too high. If it were conceded that the finding and assessment of damages is not the finding of a fact which has been found the same way by the Appellate Court, and we can look into the evidence to determine the correctness of the finding, the evidence clearly sustains it. This being true, there is no force in this position.

Perceiving no error in this record, the judgment of the Appellate Court must be affirmed.

Judgment affirmed.


author: Mr. Justice Sheldon

text:
    The Village of Warren v. John W. Wright.

      Filed at Ottawa June 21, 1882.

    1. Evidence—in action for injury from defective sidewalk—evidence in rebuttal, as to previous physical condition of the plaintiff. In an action against a village to recover damages for injuries from the falling of a sidewalk, the plaintiff claiming that he received an injury in his back, the defendant introduced evidence of a previous complaint on his part of weakness in the back. In answer to this, witnesses on the part of the plaintiff were allowed to testify to their not having heard any complaint by him in regard to his back previous to the accident: Held, that though of a negative character, and entitled to but little, if any, weight, it was not irrelevant.
    2. Same—as explanatory of plaintiff continuing a journey after he was ' injured. A party, after receiving .a personal injury from a defective sidewalk in this State, went to Canada, where his deposition was taken in a suit by him to recover damages. In the cross-examination he was asked if he stopped over at any place on his return to Canada, and answered that he did not, and then said in explanation that a physician on the train advised him not to stop off over night, but to get home as soon as he could: Held, that in rebuttal of the inference as to his physical condition, which might be drawn from the fact of his being able to go through to Canada without any stopping, it was proper for him to give his reason for not stopping over.
    3. Same—as to physical condition of plaintiff a year before receiving a personal injury. Where a plaintiff left Canada to go to the village of Warren, in this State, in March, 1876, and there received a personal injury in May, 1877, by the falling of a sidewalk, in a suit by him against the village, evidence on the part of the plaintiff as to his good physical condition when he left Canada was objected to as too remote: Held, that as there was testimony on the part of the defendant as to the poor health of the plaintiff but a short time after his coming to Warren', the objection was without force.
    4. Error wild not always reverse—as to admission of evidence. On the trial of an action to recover for an injury from a defective sidewalk, the court admitted on the part of the plaintiff evidence of the rebuilding of the walk, the manner in which it was built, and that it was different from the mode of the original construction: Held, that while this evidence should not have been received, yet as there was much testimony that the sidewalk had come to be in a manifestly defective and unsafe condition, the reception of such evidence was not a fatal error.
    5. In the same proceeding it was error to admit evidence on the part of the plaintiff that he was a married man, and had a family; but the defendant having proved the same fact, and the plaintiff’s counsel afterwards having withdrawn such evidence from the jury, the error was regarded as a harmless one, though there might be a question whether the withdrawal of the plaintiff’s evidence on this point would have cured the error.
    6. Instruction—giving facta of one aide only. An instruction which sets forth at length the facts as testified to by the party’s own witnesses, and upon the hypothesis of the belief of such facts directs the jury how to find, is objectionable, and is propeily refused.
    7. Same—stating facts as constituting due care. An instruction is faulty which details certain facts as constituting ordinary care and diligence, instead of leaving it to the jury to determine, from all the evidence in the case, whether there had been the exercise of due care and diligence by the party charged with negligence.
    8. Same— construed—as whether assuming a controverted question of fact. In an action against an incorporated village to recover for a personal injury alleged to have resulted from a defective sidewalk, the defendant asked an instruction to the effect that if the sidewalk was constructed by adjacent lot owners then there would be required of the corporation only a certain measure of diligence. The court modified this instruction by saying, “that where a corporation authorizes the lot owner to construct the sidewalk, it is the duty of the corporation,” etc. The modification was held not to be obnoxious to the criticism that it assumed that the corporation authorized and directed the construction of the sidewalk, or that it was done under its supervision, when that was a contested point in the case whether the sidewalk was thus constructed, or was built entirely by the lot owner. The word “authorize” imported no more than the corporation allowing the lot owner to construct the sidewalk, as he might well have done under the village ordinance.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Jo Daviess county; the Hon. John V. Eustace, Judge, presiding.
    Messrs. Luke & Jones, for the appellant,
    among other objections to the evidence, presented the following:
    The admission of evidence that the plaintiff was a married man, and had a family, was error, and without palliation or excuse. See this case, 5 Bradw. 433; City of Chicago v. O’Brennan, 65 Ill. 163; Pittsburg, Ft. Wayne and Chicago R. R. Co. v. Powers, 74 id. 343; Chicago and Northwestern R. R. Co. v. Moronda, 93 id. 303.

      The error in the admission of this evidence was not cured by its subsequent withdrawal several days after it was given. Lafayette, Bloomington and Mississippi R. R. Co. v. Winslow et al. 66 Ill. 223; Lycoming Fire Ins. Co. v. Rubin, 79 Ill. 408.
    Messrs. D. & T. J. Sheean, for the appellee :
    Sidewalks being a part of the street, it is the duty of an incorporated city or village having control of the streets to keep the sidewalks thereon in repair and in a safe condition, and the corporation will be liable in damages to any one injured from a neglect to discharge this duty: City of Bloomington v. Bay, 42 Ill. 503; City of Joliet v. Varley, 35 id. 58; City of Chicago v. Herz, 87 id. 541.
    The fact that the city authorities impose the duty of constructing sidewalks upon the lot owners, will not relieve the city from liability in case a sidewalk, no matter by whom constructed, is suffered to be and remain out of repair. City of Bloomington v. Bay, 42 Ill. 507; Cooley on Torts, 625.
    After a reasonable time has expired -for city authorities, by the use of due diligence, to learn of defects in the streets or sidewalks, and they are not repaired, the city will be guilty of such negligence as to render it liable for any injury produced thereby. Schmidt v. Chicago and Northwestern Ry. Co. 83 Ill. 406; City of Rockford v. Hildebrand, 61 id. 156; City of Springfield v. Doyle, 76 id. 202.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an action, brought against the village of Warren, to recover for an injury sustained from the falling of a sidewalk, on May 11, 1877, upon which plaintiff was standing at the time. There was a recovery for $2000. On appeal to the Appellate Court for the Second District the judgment was affirmed, and an appeal taken by the village to this court.

The errors -assigned are in the respect of the admission of testimony, and of instructions.

Plaintiff claimed that he received injury in his hack. There was evidence on the part of defendant of complaint by plaintiff of weakness in the back previous to the accident. In answer to this, witnesses on the part of plaintiff were allowed to testify to their not having heard any complaint by him in regard to his back previously to the accident in question, and exception is taken to this. We can not say that this testimony was wholly irrelevant, although, being of a negative character, it might be entitled to little, if any, weight. If the circumstances were such that complaint would be likely to have been made had there been such ailment, then the testimony would have been worthy of consideration.

The plaintiff came from Canada to Warren, in the spring of 1876, and some time after the occurrence of the accident returned to Canada. His deposition was taken in the case. In a cross-interrogatory on the part of defendant he was asked if he stopped over at any place in returning from Warren to Canada, and answered that he did not, and then said in explanation that a physician on the train advised him not to stop off over night, but to get home as soon as he could, and the admission of this evidence is complained of. In rebuttal of the inference as to the physical condition of the plaintiff which might be drawn from, the fact of his being able to go through from Warren to Canada without any stopping, we think it was proper for him to give the reason for his not stopping over. We find no force in the objection that the evidence on the part of the plaintiff as to his good physical condition at the time he left Canada, in March, 1876, to go to Warren, was too remote, the happening of the accident not being until on May 11, 1877, as there was testimony on defendant’s part as to the poor health of plaintiff but a short time after his coming to Warren.

Objection is made to the admission of evidence of the rebuilding of the sidewalk after its fall, the manner in which it was rebuilt, and that it was different from the mode of the original construction. This testimony could only have been relevant as founding an inference that the sidewalk was defectively constructed originally, and that there was a want of ordinary care in that respect. We think it was inadmissible for that purpose. The fact of the falling of the sidewalk might well have suggested a different mode of construction to guard against the possibility of a like occurrence, when there might have been originally no culpable negligence in not .foreseeing such a disaster, and in the mode of original construction. From other causes, too, a different and improved mode of construction might have been adopted, and while we think the evidence should not have been received, yet there was so much testimony in the- case that the sidewalk had come to be in a manifestly defective and unsafe condition, we do not think the reception of this evidence should be held to be a fatal error.

Evidence was admitted and excepted to that plaintiff was a married man, and had a family. It was error to admit this evidence. City of Chicago v. O’Brennan, 65 Ill. 163; Pittsburg, Ft. Wayne and Chicago R. R. Co. v. Powers, 74 id. 343. But the same facts were brought out and made to appear in testimony introduced on' the part of the defendant, and in a subsequent stage of the trial, too, this evidence was withdrawn by plaintiff’s counsel from the consideration of the jury. Although there might be question as to whether such withdrawal cured the error of admission, (Lafayette, Bloomington and Mississippi R. R. Co. v. Winslow, 66 Ill. 223, and Lycoming Fire Ins. Co. v. Rubin, 79 id. 408,) yet in view of the like facts appearing in the testimony introduced by the defendant, we must regard the error of admitting the evidence as a harmless one.

The eleventh and fifteenth instructions asked on the part of the defendant were to the effect that if the sidewalk was constructed by the adjacent lot owners, and appeared to be in safe condition, the defendant could not be held liable, unless it had actual notice of the defect in the sidewalk, or that the defect existed for such a length of time that if the defendant had exercised reasonable or ordinary care and diligence, it would or should have known of the defect in time to have repaired the same before, the falling of the sidewalk, to which the court added the following: “It being also the law, to be considered by the jury in connection with these instructions in this case, that where a corporation authorizes the lot owner to construct the sidewalk, it is the duty of such corporation to use ordinary care to see that it is constructed so as to be reasonably safe, and where it occupies and uses a sidewalk which has already been constructed by the lot owner, it is the duty of such corporation to use ordinary care to determine whether it has been so constructed as to be rea'sonably safe for persons using it with ordinary care and prudence.” As thus modified, the court gave the instructions to the jury. It is insisted the instructions should have been given as asked, and that the modification of them was erroneous. The criticism made upon the language, that it assumes that the corporation authorized and directed the construction of the sidewalk, or that it was done under its supervision, when that was a contested point in the case whether the sidewalk was thus constructed or was built entirely by the lot owners, does not strike us as correct. The word “authorize,” which is used, imports no more, that we see, than the corporation allowing the lot owner to construct the sidewalk, as he might do under the jirovisions of the ordinance of the corporation in evidence for building the sidewalk, levying a tax therefor, and declaring that if the lot owner made the sidewalk in conformity with the ordinance by a time named, he should not be taxed therefor. The instructions as asked recognized the liability of the defendant if the defect in the sidewalk would have been discoverable by the exercise of ordinary care and diligence, and the modification made by the court was no more than that where the sidewalk was constructed by a lot owner by the permission and allowance of the corporation, it is the duty of the latter to use ordinary care and diligence to see that the sidewalk is reasonably safe. What was required by the instructions as asked, and as modified, was reasonable care and diligence in seeing to the safety of the sidewalk, and we perceive no such essential change in the modification of the instructions as to afford any substantial ground of complaint.

The refusal to give the sixteenth instruction asked by the defendant is complained of as error. This was a long instruction, reciting at length particulars of divers examinations as having been made by officers of the corporation for the purpose of ascertaining the condition as to safety of the sidewalk, and instructing if such examinations had been made, and the sidewalk appeared to be reasonably safe, and' that afterward the defendant did not have any notice of the-unsafe condition of the sidewalk long enough before it fell to have repaired • the same, and if the sidewalk was originally constructed so as to be reasonably safe for public use,, that then the defendant had exercised ordinary care and diligence to see that the sidewalk was reasonably safe for public use, and was not guilty of negligence entitling the plaintiff to recover. This instruction was objectionable in setting forth at length facts as testified to by defendant’s witnesses, and upon the hypothesis of the belief of such facts directing the jury how to find. This form of instruction has been repeatedly condemned by this court. Harris v. Cornell, 80 Ill. 54; Martin v. Johnson, 89 id. 539; Logg v. The People, 92 id. 598; Thorp v. Goewey, 85 id. 612. The instruction was further faulty in detailing certain of the facts which would constitute ordinary care and diligence, instead of' leaving it to the jury to determine whether, from all the evidence in the case, there had been the exercise of due care and diligence on the part of the corporation. This instruction was properly refused.

It is complained that the damages are excessive. There was evidence going to show the injury to have been a very serious one, and of a permanent character, and we find no sufficient reason for disturbing the judgment on the ground last named, if it were one open to our consideration, as to which we express no opinion.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    The United States Life Insurance Company v. Clara Ludwig.

      Filed at Ottawa June 21, 1882.

    1. Party—plaintiff—on policy of insurance assigned. Policies of insurance are but choses in action, and governed by the same principles applicable to choses in action in general. They are assignable in equity only, and in this State courts of law will not recognize the assignment so as to allow the assignee to sue on the policy in his own name.
    2. The payment of a premium on a policy of life insurance by the assured, after an assignment to his children, for them, when the policy is to him and in his name, or even a payment by the assignees, when no new undertaking or promise is made to them, will not authorize a recovery in the names of the assignees, even under the common counts. The suit must be brought in the name of the party having the legal interest, though it may be for the use of the party having an equitable interest.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.

      This was an action of assumpsit, by Clara Luclwig, who sues in her own right, and as guardian of Otto Ludwig and Emma Ludwig, minors, against- the United States Life Insurance Company, on four policies of insurance issued by that company to Otto C. Ludwig, insuring his life. Each policy recites that “in consideration of the application therefor, signed by the assured hereinafter named, and submitted in writing by or for the assured, to the officers of this company subscribing this policy, which application is hereby referred to and made a part of this contract, and of each of the statements (warranties and agreements) made and contained therein, which, whether signed or written by his or her own hand or not, every person accepting or acquiring any interest in this contract hereby adopts as his or her own, admits to be material, and warrants to be full and true, and agrees shall be the only basis upon which this policy is issued; and in further consideration of the payment in advance to said company, at its principal office in New York City, by or for the assured under this policy, to-wit, Otto C. Ludwig, the person whose life is hereby insured (or any of the persons hereinafter called the ‘assured’), of the first premium, to be evidenced by the receipt to be given therefor, signed by the president, secretary, assistant secretary, or actuary, and, thereafter, of the semi-annual premium of $18.90 on or before the twenty-sixth days of April and October in each and every year during the continuance of this policy, and as hereinafter provided, * * * this company agrees to pay to the said Otto C. Ludwig, his executors, administrators or lawful assigns, in three months after due notice and satisfactory proofs, as hereinafter required, of the death during the continuance of this insurance of the said person whose life is hereby assured as above, and proof of the just claim of the' said assured, or of any other person, as child, guardian, executor or administrator, made or to be made under this policy, the balance of the year’s premium, if any, remaining unpaid, and any indebtedness to the company, being first deducted therefrom. ”
    On the trial plaintiff also offered and put in evidence the renewal receipts for premiums on each of said policies. The last receipt for premium on each of the policies numbered 38,352 and 38,354, respectively, is in the following form:
    “The United States Life Insurance Company in the city of New York.
    $18.90. GUca(J°-

    “Beceived this 26th day of April, 1880, eighteen and -j9^ dollars, for the premium on policy of Otto C. Ludwig (policy No. 38,352), due at above date, hereby continuing the insurance thereunder for six months from above date, subject to all the provisions, conditions and agreements contained in the above mentioned policy, and the application therefor, and those indorsed hereon, all of which are hereby referred to and made part hereof.
    C. P. Fbaleigh, Sec’y.”
    Indorsed on the face as follows
    “The within mentioned amount paid in cash, or check, good at bank, this 26th day of April, 1880, at Chicago, Ill.
    E. W. Chamberlain, Agent,

    Pr. B.”
    The printed provisions on the back of said receipt are omitted.
    It was admitted that all of the premium receipts on the four policies in question (excepting the last receipt on policies numbered 38,352 and 38,354, as aforesaid,) are in the following form:
    “United States Life Insurance Co., in the city of New
    ^or-*£- Chicago.

    “Beceived this 14th day of March, 1880, eighteen dollars from the owner of policy No.-38,355, on the life of Otto C. Ludwig, for the premium due at above date, continuing the insurance thereunder for six months from above date, subject to all the provisions, conditions and agreements contained in the above policy and the application therefor, and those indorsed hereon, all of which are hereby referred to and ^ hereby made part hereof.
    C. P. Fbaleigh, Sec’y.”
    Indorsed on the face as follows:
    “The within mentioned amount paid by the owner of the policy in cash (or check good at bank) this 3d day of March, 1880, at Chicago, Illinois.
    E. W. Chambeklain, Agent,

    Pr. B.”
    The printed portions on the backs of the receipts are omitted.
    Otto C. Ludwig died July 31, 1880, and proofs of claim were made by the assignees of the policies. Defendant admitted that death was caused by pulmonary apoplexy, as stated in the proofs of loss. Defendant also admitted that demand of payment of the company was made by the plaintiff.
    The assignment of the policies was as follows:
    “For a good and valuable consideration, I hereby assign policies numbered 38,352, 38,353, 38,354 and 38,355, in the United States Life Insurance Company, in the city of New York, to my three children and sole heirs at law, Clara Ludwig, Otto Ludwig and Emma Ludwig, to have the moneys and benefits to accrue therefrom, share and share alike, between them.
    “In witness whereof I have hereunto set my hand and seal, this 24th day of January, A. D. 1819.
    Otto C. Ludwig, [seal.]
    “Witness: Albion Cate. ”
    The signatures to the assignments were proved, and Otto Ludwig, one of the children of said Otto C. Ludwig, testified that he took possession of the said assignments at the time they were executed; that the policies were delivered to him at the same time; that he put them in his father’s safe ; that they remained there, in the same package, until his father’s death; that he had the combination of the safe, and his father had it also.
    Albion Cate, a witness for plaintiff, who being shown the assignments, testified: “I think I drew it; that is in my handwriting, and that is Mr. Ludwig’s signature; I saw him write it; don’t remember now whether I sent a duplicate of that assignment to the United States Life Insurance Company; I sent an assignment to them; think I gave Ludwig the duplicate; am quite certain this is a duplicate of the one I sent to the company; they acknowledged the receipt of the letter; they said they would not acknowledge or accept a receipt until certain things were done. ”
    Phillip Schick, on behalf of the defendant, being shown the receipts for payments on premium, before set out and referred to, testified: “I paid the money about the time it was due; I got the money to pay them from Mr. Otto C. Ludwig, who is now dead, at about the time the moneys were paid; I paid the premiums, back of this one, for the last two or three years; I got the money to make the payments from Otto C. Ludwig, deceased.” On cross-examination he testified: “I know the money was Otto C. Ludwig’s, because he took it out of the business drawer; the money was paid for the three children; the money was the money of Otto C. Ludwig.”
    The court instructed the jury orally, by consent of parties. The defendant then asked the court to instruct the jury, that if they believe, from the evidence of Mr. Schick, that the money paid for the premiums was the money of Otto C. Ludwig, that then, upon the evidence in this case, the plaintiff can not recover. To that the court said to the jury, that if Otto 0. Ludwig paid this money for the premiums, intending it to be for the benefit of his children, after assigning the policies to them, that it is the same thing as though it had been paid with their own money. The defendant then asked the court to instruct the jury, that upon the evidence in this case the plaintiff is not entitled to recover, which said last mentioned instruction the said court then and there refused to give, for which refusal counsel for defendant then and there duly excepted.
    The jury returned a verdict in favor of the plaintiffs, assessing their damages at $5272.78. Thereupon the defendant moved for a new trial, assigning therefor, among other causes, that the court gave improper instructions to the jury, and refused to give proper instructions to the jury asked for on behalf of defendant. The motion was overruled, and proper exception taken. Defendant appealed to the Appellate Court for the First District, where the judgment of the circuit court was affirmed. This appeal is from that judgment. The errors assigned bring before this court for review all the rulings of the Appellate Court.
    Mr. Francis H. Kales, for the appellant :
    There is no evidence that the company ever assented to the assignment, although it had notice thereof; but had such been the case, it would not have been sufficient, under our law, to have authorized a suit to be brought in the name of the assignees of the contract. Jessel v. Insurance Co. 3 Hill, 88.
    It is contended, on the part of the appellant company, that this action was not brought by the proper parties, and in support of this view the following authorities are cited: Bliss on Life Insurance, sec. 336, p. 553; May on Insurance, pp. 475-483; Pomeroy v. Manhattan Ins. Co. 40 Ill. 398; Hartford Ins. Co. v. Olcott, 97 id. 439; Palmer v. Merrill, 6 Cush. 282; St. John v. Am. Mutual Life Ins. Co. 13 N. Y. 31; Jessel v. Insurance Co. 3 Hill, 88.

      Messrs. Hutchinson & Luff, for the appellee :
    The policies expressly promise to pay “Otto C. Ludwig, his executors, administrators or lawful assigns,” and the company can not question the right of the assignees to collect the insurance. Angelí on Life and Fire Insurance, 325-328; Bliss on Life Insurance, secs. 325, 326.
    The assured is dead, and suit could not he brought in his name. No administrator was appointed, and if there had been he would have had no interest in the policy. A court of equity could have no jurisdiction. Taylor v. Turner, 87 Ill. 296.
    The assignee of a policy may sue in his own name when the premiums have been paid by him, or for his benefit. The proof shows that the premiums were paid for the benefit of the assignees. All the receipts given for the renewal premiums run to the “owner” of the policies, and not to the assured, except two, and as to those the receipts do not state from whom the money was received.
    The payment of the premiums by the assignees, or for their benefit, after notice of assignment to the company, creates a new contract between the assignees and the company, and on that contract suit will be sustained. Peoria Marine and Fire Ins. Co. v. Hervey, 34 Ill. 46; New England Fire and Marine Ins. Co. v. Wetmore, 32 id. 221; Westchester Fire Ins. Co. v. Foster, 90 id. 122.
    The declaration contains the common counts, and the suit may be sustained on the ground that assumpsit is an equitable action, in which the plaintiff can recover from the defendant so much money as he can show the defendant, ex equo et bono, ought not to retain. Watson v. Wolverton, 41 Ill. 241; Belden v. Perkins, 78 id. 449; Hall v. Mwrsion, 17 Mass. 579.
    Indeed, the court will find, upon examination, that in every case decided by this court wherein the right of the assignee of an insurance policy to sue in his own name has been in question, save one, the judgment in his favor has been affirmed. New England Fire and Maxine Ins. Co. v. Wetmore, 32 Ill. 221; City Fire Ins. Co. v. Mark, 45 id. 482; Phoenix Ins. Co. v. Mitchell, 67 id. 43.
   Mr. Justice Scholfield

delivered the opinion of the Court:

A single question arising on this record is presented for our consideration by the arguments of counsel: Are the plaintiffs entitled to prosecute an action at law, in their own names, on these policies ?

Policies of insurance are but choses in action, and governed by the same principles applicable to choses in action in general. They are assignable in equity only, and in this State, and in others where the strict rules of the common law prevail, courts of law will not recognize the assignment so as to allow the assignee to sue on the policy in his own name. New England Fire and Marine Ins. Co. v. Wetmore, 32 Ill. 221; Peoria Marine and Fire Ins. Co. v. Hervey et ux. 34 id. 62; Massachusetts Mutual Life Ins. Co. v. Robinson, 98 id. 324; Bliss on Life Insurance, sec. 325; May on Insurance, sec. 377; Jessel v. Insurance Co. 3 Hill, 88; 2 Am. L. Cases, (5th ed.) 886, 887.

But counsel contend that “payment of the premiums by the assignees, or for their benefit, after notice of the assignment to the company, creates a new contract between the assignee and the company, and on that contract suit will be sustained, ” and they cite Peoria Marine and Fire Ins. Co. v. Hervey et ux. supra, New England Fire and Marine Ins. Co. v. Wetmore, supra, and Westchester Fire Ins. Co. v. Foster, 90 id. 122. Neither of these cases sustains the proposition so broadly and unqualifiedly as thus contended for by counsel. In the first named case, the case stated shows this: The property had been insured by Bishop. He sold and delivered it to the plaintiff, and on the same day, and with the consent of the defendants manifested by their indorsement on the policy, assigned the same to the plaintiff. On the same day the defendants executed a renewal certificate in writing, and delivered it to the plaintiff, and in consideration of the sum of $45, paid by the plaintiff as premium to the defendants at their request, and of the undertaking and promises by the plaintiff to perform and fulfill "all things contained in the policy to Bishop, on her part to be performed, etc., the defendants undertook and promised the plaintiff to consent to a continuance of the risk originally insured, from October 22, 1859, to October, 1860, and to become and be insurers to the plaintiff, of the sum mentioned in said policy, upon the property, and to fulfill all things mentioned in the policy, etc., and the court said: “The question before us is correctly put by the counsel for appellee: Can the plaintiff recover of this insurance company, in her own name, the amount of damages which they, as an insurance company, undertook and promised to pay her in case the property insured was destroyed by fire ? Did the company enter into such a contract, on a valuable consideration, with the plaintiff ? The fact that they had the year previous insured the property for Bishop, and that he assigned the policy to the plaintiff, does not, we think, affect one way or the other the real question stated above and presented by the record. * * * It amounts simply to this: that on the plaintiff going to the insurance company with the policy issued to Bishop in her possession, of which she was then the holder, on seeing it, the defendants, by their agent, say to her that she need not make a new application for insurance—that they would continue the risk for her benefit one year, on the payment by her of $45. That had no effect upon the written policy of Bishop to continue it alive, or to revive it, being dead, but it was a new contract with the plaintiff, for a valuable consideration paid, and on the terms of the original policy. ” And so it was held the action was properly brought in' the name of the plaintiff—on the new contract, however, and not on the original policy. In the next case, it was expressly held that the assignee of an insurance policy could not, at common law, maintain a suit upon it in his own name, and it.was also further held that' a renewal receipt, executed upon the payment of the premium by the assignees of a policy, whereby the policy was continued in force for another year, merely revived an expiring contract, and that suit must be brought- on the original policy in the name of the assured therein. In the other case the policy was expressly payable to the beneficiary, and not, as here, to the assured, etc., and the question there was simply whether, under the language of the policy, the beneficiary could sue in his own name. That case is not at all analogous.

There was not here, as in Peoria Marine and Fire Ins. Co. v. Hervey et ux. supra, any new and independent contract. The suit here is not, as there, upon the agreement made when the premium was paid after the assignment. There was here no new insurance. The premiums paid after assignment are paid by the assured, not by the beneficiaries. It is true, as contended, this was done-for them; but so were the premiums paid before assignment. The policies were, in the first instance, obtained by the assured for their benefit. The contracts, pursuant to which they were issued, and of which they are evidence, were, however, his contracts, made by him, and complied with by him both before and after the assignment. The contracts upon which suit is broúght are his contracts,—his acts are in evidence,—and there is no suit upon contracts, and no evidence of the acts, of the beneficiaries. Even if the money here paid after the assignment, had been paid by the assignees out of their own funds, the ease would be totally unlike that of Peoria Marine and Fire Ins. Co. v. Hervey et ux. supra. The old policy had not expired, and the case would then be strictly analogous to New England Fire and Marine Ins. Co. v. Wetmore, supra,— the revival of an expiring contract,—and on the authority of that case the assignees could not sue in their own names. Indeed, the receipts here are, as there, expressly renewal receipts, on their faces. Mutual Life Ins. Co. v. Robinson, 98 Ill. 324, is in point, and conclusive against the plaintiffs.

The position that the present plaintiffs are entitled to recover under the common counts, in their own names, is untenable. The recovery must be on the" policy, even if it be under the common counts. The suit must be brought by the party having the legal interest, although it may be for the use of one having an equitable interest. Dicey on Parties, 51, and notes.

The judgment is reversed, and the cause remanded for further proceedings consistent with this opinion.

Judgment reversed.


author: Mr. Chief Justice Scott

text:
    Stephen Clement v. Charles Reitz et al.

      Filed at Ottawa June 21, 1882.

      Appeal—whether a freehold involved. A proceeding to establish and enforce a mechanic’s lien against land, does not involve a question of freehold any more than a bill to foreclose a mortgage, and hence this court has no jurisdiction to review a decree giving the lien, in the first instance, by writ of error to the trial court, brought by one claiming an interest in the land.
    Writ of Error to the Circuit Court of Lake county; the Hon. Theodore D. Murphy, Judge, presiding.
    Messrs. Cook & Upton, for the plaintiff in error.
    Mr. Henry C. Whitney, and Mr. Francis Lackner, for the defendants in error.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

A number of parties commenced separate proceedings against James C. Hyde and others, by petition, to establish mechanic’s liens against the lands described in the several petitions, for materials furnished by petitioners to Hyde, which were used by him in the construction of a building on the premises called the Glen Flora Hotel. After answers and replications were filed, the several causes, by order of the court, were consolidated, and tried as one cause. On the hearing the circuit court ascertained the amounts due the several petitioners for materials by them respectively furnished to Hyde for use in the building, and made the same a lien on the property, and decreed that in default of payment of the same the premises be sold in the usual way in such cases. Stephen Clement, who was named as defendant with the principal defendant as having some interest in the property, brings the case directly to this court on error.

It would seem, in a case of this kind, the real question involved is, whether the land can be subjected to the lien of the mechanics or material-men. Payment of the sum ascertained to be due to them would relieve the land entirely from the lien established. How, then, is a freehold any more involved than in a suit to foreclose a mortgage ? It has frequently been decided by this court that in a proceeding by bill to foreclose a mortgage a freehold is not involved. No difference in principle is perceived in the cases. In one case the lien is created by mortgage-deed, and in the other it is given by statute, and the proceeding in either case is simply to foreclose the lien.

As no question is involved in this litigation that would give this court jurisdiction in the first instance to hear the case, the writ of error must be dismissed, which is done.

Writ of error dismissed.


text:
    The Chicago Legal News Company v. Thomas R. Browne et al.

      Filed at Ottawa June 21, 1882.

      1. Practice—as' to specific objection—and time—substitution of assignee in bankruptcy as plaintiff. Where a defendant suffers the assignees in bankruptcy of the plaintiff to be substituted as parties in his stead, without objection or exception at the time, and proceeds afterward to plead to the merits and go to trial, he waives any irregularity there may have been in the substitution, and it will be too late for him to move for a discontinuance for that cause after the case has been remanded from the Appellate Court. Such an objection should have been specifically taken before the first trial on the merits.
    2. Pleading and evidence—representative capacity of plaintiff—how put in issue. Where the plaintiff sues in a representative capacity, as administrator, for example, if the defendant would contest his right thus to sue, he must make denial of it by plea. The general issue in such ease is a waiver of all exception to the person of the plaintiff.
    3. Landlord and tenant—breach of landlord’s agreement as to character of use of other portions of building—to defeat a recovery of rent. Where a landlord agrees with the tenant at the time of making the lease of a portion of a building that he will not lease any other part of such building for a saloon, or for saloon purposes, in consideration of which the lease is accepted, a subsequent leasing of a part of such building, before the term expires, for the excepted purpose, and permitting it to be used for that purpose, when the original tenant does not leave the premises demised to him, but enjoys them for the balance of the term, will not defeat a recovery of the rent from the prior tenant for the time such other part of the building was so improperly occupied and used. Such an agreement is not a condition. precedent to the right to recover rent, and does not go to the entire consideration, but is to be taken as a stipulation, the breach of which only gives an action for damages to the lessee.
    4. The rule is well settled .that the wrongful act of the landlord does not debar him from a recovery of rent, unless the tenant, by such act, has been deprived in whole or in part of the possession, either actually or constructively, or the premises are rendered useless.
    Appeal from the Appellate Court for the First District;— heard, in that court on appeal from the Circuit Court of Cook county; the Hon. Thomas A. Moran, Judge, presiding.

      Mr. Francis H. Kales, for the appellant.
    Mr. James E. Munroe, for the appellee.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an action of assumpsit, brought by Edmund L. Davison, as plaintiff, on the 26th day of December, 1877, against the Chicago Legal News Company, on two leases under seal, to recover certain rents alleged to be in arrear. On the 9th day of February, 1878, the defendant filed the plea of the general issue, and two special pleas of set-off, alleging that it had suffered damages to its property by reason of intoxication of its employés, caused by the sale of intoxicating liquors in another part of the same building, a portion of which was leased to defendant, which damages the defendant offered to set off against the claims of the plaintiff. On October 15, 1878, the bankruptcy of plaintiff was suggested upon the record by plaintiff’s counsel, and on his motion leave was granted to make and substitute Thomas B. Browne and F. B. Neale, Jr., assignees in bankruptcy of said plaintiff, parties plaintiff in place of said bankrupt. After-wards there were other pleadings by the defendant to the merits, and trial had upon issues joined, resulting in a verdict and judgment in favor of plaintiffs, which judgment, on appeal to the Appellate Court for the First District, was reversed for error in the instructions given to the jury for the plaintiffs, and the cause remanded. (5 Bradwell, 250.) After the redocketing of the cause in the circuit court, defendant moved for a discontinuance of the case, which motion was overruled and exception taken. Another trial was had, which resulted in a verdict and judgment for plaintiffs, and the judgment was affirmed by the Appellate Court, and appeal taken to this court.

The judgment of the Appellate Court is conclusive upon the controverted questions of fact, and but two questions of law are presented uqion the record for our determination. One is, that the circuit court improperly permitted the assignees in bankruptcy to become parties plaintiff by substitution.

It is said there is no statute of this State authorizing the substitution; that the act of Congress authorizing such a substitution in some cases (Rev. Stat. U. S., sec. 5047,) is not a rule of practice for State courts, and that even within the act of Congress no case was made for the substitution, as it does not appear that at the time of the commencement of the proceedings in bankruptcy this action was pending in the name of the bankrupt debtor, nor even that it was pending at the time of the adjudication in bankruptcy. It is insisted, there being no statutory authority for the substitution, that the rule of the common law must govern, by which a change of parties after suit brought could be effected only by a scire facias, and that the irregularity of failing to sue out the writ of scire facias, and thus omitting to tender any issue as to the bankruptcy of Davison, and the appointment of his assignees, operated as a discontinuance. The register’s deed of assignment in bankruptcy to the assignees was introduced in evidence on the trial, and sec. 5049, Bev. Stat. TJ. S., makes this deed conclusive evidence of title in the assignees; but admission of the deed was excepted to, and it is insisted that it was improperly admitted in evidence, since there was no issue in the case warranting its introduction. It is enough to say that this question as to substitution can not here be raised, because there was no exception taken at the time to the action of the court. This suffering the substitution to be made without objection, and proceeding afterward by pleading to the merits and trial thereon, was a waiver of any irregularity there might have been in making the substitution. It was too late to move for the discontinuance for such cause after the case had been remanded to the circuit court from the Appellate Court. The objection should have been specifically taken before the first trial on the merits. When the plaintiff sues in a representative capacity, as administrator for example, if the defendant would contest his right thus to sue, he must make denial of it by plea. The general issue is a waiver of all exceptions to the person of the plaintiff. Ballance v. Frisby, 2 Scam. 63; Collins v. Ayers, 13 Ill. 358; Christian Society, etc. v. Macomber, 3 Metc. 235.

.The other question arises upon the refusal of the following instruction, which was asked by the defendant:

“If the jury believe, from the evidence, that Davison, the lessor of the defendants, by himself or his agents, at the time of the making of said first lease, agreed with said defendant that if said defendant would lease the said premises of said Davison, and enter into the said lease, dated the 1st day of December, 1874, and take the same, that said Davison would not let or lease any other part of the said premises or building for a saloon, or for saloon purposes; and that in consideration of such agreement as last aforesaid, the defendant did enter into and take said lease; and if the jury further believe, from the evidence, that thereafter, before said lease expired, said Davison, without the consent or acquiescence of the defendant, did let a part of said building for a saloon, and permitted the same to be used as such, then the jury are instructed that said plaintiffs can not recover for rent for the time said Davison permitted said premises to be let and used for the purposes of a saloon. ”

The defendant did not leave the demised premises, but remained therein and enjoyed them for th.e full term. We fail to perceive that the performance of the agreement supposed, not to lease any other part of the building for a saloon, was a condition precedent to a right of recovery of rent, as thé instruction makes it. The agreement was not made such a condition in terms. It did not go to the whole of the consideration, in which case such an agreement has been read as a condition. It should be taken to be but a stipulation, the breach of which only gave an action for damages to the lessee. (2 Parsons on Contracts, 527.) It is but the amount of the damages from the violation of the agreement which defendant would be entitled to have, and as it might have been much less than the rent, it would be improper to instruct that there could be no recovery of rent for the time a part of the premises was leased contrary to the agreement.

The rule is well settled that the wrongful act of ,the landlord does not debar him from a recovery of rent, unless the tenant, by such act, has been deprived in whole or in part of the possession, either actually or constructively, or the premises rendered useless. Edgerton v. Page, 20 N. Y. 284; Halligan v. Wade, 21 Ill. 470; Leadbeater v. Roth, 25 id. 587.

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

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    John Carne, Jr. et al. v. Ellenor M. Truman.

      Filed at Ottawa June 21, 1882.

    1. Practice in chancery—findings must support decree where the evidence is not preserved. Where the evidence in a chancery suit is not preserved in the record, no presumptions can be indulged in this court as to what the court below found, but the findings must speak for themselves, and if they are not sufficient to sustain the decree, it will be erroneous, and must be reversed.
    2. If there is in such a case a finding of facts sufficient to support the decree, this court will presume the evidence warranted the finding, when it is not preserved in the record.
    3. Where copies of affidavits filed in the county clerk’s office of the purchase of a lot for taxes, and of the service of notice of the time when the redemption will expire, are preserved in the record as exhibits, in a bill to set the tax deed aside as a cloud upon the former owner’s title, a finding in the decree of the court that said affidavits are null and void, and not in compliance with the statute, will not preclude this court from examining the exhibits to see if they are void, and not in compliance with the statute.
    Appeal from-the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Mr. John P. Wilson, for the appellants.
    Messrs. Ricaby & Landis, for the appellee.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This is an appeal from a decree of the Superior Court of Cook county, setting aside and directing- to be delivered up for cancellation three several tax deeds held by appellants, as a cloud upon appellee’s title to two lots situate in the city of Chicago, which she claims as owner in fee. The first two bear date September 9, 1879, and it is conceded the decree of the Superior Court as to them is proper, and hence there is nothing further to be observed as to them. The third deed is founded upon a tax sale of the 9th of October, 1878, for the taxes of 1876 and 1877, and bears date October 7, 1881. With reference to the tax proceedings upon which this deed rests, it is charged in the bill that “the provisions of law in regard to the assessment and sale upon which said tax certificates purport to have been based, have not been . complied with; that although the time has elapsed during which said Coombs or his assigns was obliged to give complainant or her grantor notice of such sale, and of the time when redemption should expire, yet such notice has not been given by Coombs or his assigns, or anybody for him. ” This charge occurs in the original bill, which was filed more than . two years after the sale, and before the execution of the last deed. After its execution a supplemental bill was filed by appellee, in which the additional charge is made “that said last mentioned tax deed was obtained by said Coombs for the benefit of said Carne, and as the agent of said Carne, and that said last mentioned affidavits deposited with the county clerk of said Cook county, (a certified copy of said affidavits, marked exhibit ‘A,’ is hereto attached and made a part of this bill,) and which said affidavits are informal, uncertain, and are not in compliance with law; that complainant was not notified of said tax sale as required by law. ” These are all the averments contained in the bill, or supplemental bill, which in any view can be claimed to warrant th.e special finding upon which the decree is based.

The case was heard “upon the bill, supplemental bill, answers, replications and proofs taken in open court. ” The decree finds, “that the said three tax deeds, and each and every of them, based upon affidavits in said county clerk’s office, which affidavits are null and void, and are not in compliance with the statute in such case made and provided, ” and the said deeds are set aside, declared “null and void,” so far as they relate to the premises in question. The evidence upon which the decree is based has not been preserved, by a certificate of evidence or otherwise. In determining, therefore, whether it can be sustained, we must look alone to the averments in the bill, and the findings of the decree.

It will be perceived, from an examination of the decree, and from what we have already said, there is no direct finding with respect to the deed in question, or any other document, paper, or instrument, or step taken in the tax proceeding, except as to the affidavits relating to notice. It follows, therefore, if this decree can' be sustained at all, it is on the ground the affidavits in question are not in conformity with the statute. Whether they are or not presents a pure question of law, for they are set forth in the record in hcec verba, as an exhibit of the supplemental bill. The decree does not specify in what respect they are insufficient, and if they are not in conformity with the statute, the imperfection, whatever it may be, has escaped our attention, and counsel for appellee have failed to point it out in their brief.

It is suggested that as the record shows proofs were taken in open court, and the evidence is not preserved in the record, this court must presume the evidence heard “rendered these affidavits nugatory. ” But this is a misapprehension. As the evidence is not preserved, we can indulge in no presumptions as to what the court found. The findings of the court must speak for themselves, and if they are not sufficient to sustain the decree, it will be erroneous, and should be reversed. If, however, there is, in such case, a finding of facts sufficient to support the decree, then this court will presume the evidence warranted the finding. Had the bill in this ease, instead of alleging the affidavits void, as was done, charged the facts set forth in them were untrue, as is claimed, and the court had so found, we would presume the evidence warranted the finding, and should affirm the decree. But such is not the case. The decree and the pleadings on behalf of appellee are very loosely drawn, and if what is claimed by her counsel is true, the result of the case in this court would have been otherwise had ,her learned counsel been more careful in their preparation.

The decree of the circuit court as to the deed of October Y, 1881, will be reversed, and the cause remanded for further • proceedings, with leave to the parties to amend their pleadings, and take further testimony, if they shall be so advised.

Decree reversed.