author: Mr. Justice Scholfield

text:
    The People, for use of Thomas McKee v. Daniel Abbott et al.

      Filed at Ottawa November 20, 1882

      Rehearing denied March Term, 1883.

    1. Administration—compelling surrender of notes to administrator. It does not follow, when another party is in possession of goods, chattels, etc., of a deceased person, that the court shall order that the same be delivered to the administrator, under section 80, chapter 3, Rev. Stat. 1874. If the order can accomplish no substantial good it should not be made. The court is invested with a discretion, and is not compelled, as a matter of arbitrary law, to make any specific order. This discretion is not unlimited, but should be exercised so as to best preserve the estate, and promote its honest, complete and prompt administration.
    2. Although a proceeding .under that section of the statute is a statutory and .not an equitable proceeding, the court, as in the allowance of claims against an estate, should look beyond the mere legal -right, and protect the equitable right of possession. Hence the court should not require the equitable owner of promissory notes, made payable to a deceased person, to deliver them to the administrator of the estate, when not required for the payment of debts of the estate or for the purposes of distribution.
    3. Same—when not necessary. Where the husband, the sole heir of his wife as to her personal estate, has paid all her debts and liabilities, and as such heir, and having the possession of all her personal estate, makes a voluntary disposition of promissory notes payable to his wife, and no administration is necessary to collect the notes, the appointment of an administrator is unnecessary, and if appointed he will not be entitled, as a matter of right, to have the husband’s equitable assignee surrender such notes to him merely to collect them, and charge his commissions on the amount, when collected.
    4. Assignment—equitable assignee protected. Where the sole heir of a deceased person voluntarily parts with whatever title he had to notes of the decedent, should the administrator collect the same and pay the money over to him, he not being equitably entitled to the same, a court of equity would compel him to pay the amount over to the equitable assignee.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Knox county; the Hon. Arthur A. Smith, Judge, presiding.

      This is an appeal from a judgment of the Appellate Court for the Second District, reversing a judgment of the circuit court of Knox county. The case was a proceeding instituted by Thomas McKee, as administrator of the estate of Kate H. Lee, deceased, in the county court of Knox county, against Daniel Abbott and Louisa McCall, as executors of the last will and testament of Catharine Dwire, deceased, under section 80, of chapter 3, Rev. Stat. 1874, entitled “Administration of Estates, ” to compel the latter to deliver to the former certain promissory notes claimed to belong to the estate of said Kate H. Lee, deceased. The circuit court ordered that the notes be delivered as sought by the proceeding, but on appeal to the Appellate Court for the Second District that court reversed this order of the circuit court; and inasmuch as such judgment was, wholly or in part, the result of the finding of the facts concerning the matters in controversy different from the finding of the circuit court, said court recited, in its final order and judgment, the facts as found by it, after the caption, as follows :
    “That Mrs. Kate H. Lee died on the 21st day of December, A. D. 1876, intestate, leaving a surviving husband, Henry R. Lee, but leaving no children or descendants of children; that at the time of her death she was the owner of a piece of real estate in the State of Iowa, and was also possessed of about $14,000 worth of personal property, a portion of which is the notes in controversy, and for which the order in this case was entered in the circuit court, or for the proceeds of such of the notes as had been collected by the appellants; that after the death of Mrs. Lee the said Henry R. Lee took and retained possession of all the personal estate until the time of the division of the property hereinafter mentioned, and after that time still retained all of it except that portion delivered to Mrs. Dwire; that on the 8th day of January, 1877, the surviving husband, Henry E. Lee, and the mother of Mrs. Lee, (Mrs. Catharine Dwire',) entered into the following contract in writing:
    “ ‘Articles of agreement between Henry E. Lee, of Gales-burg, and Mrs. Catharine Dwire, of Canton: It is agreed and fully understood between, viz., ourselves, Mrs. Catharine Dwire and Henry E. Lee, that the property, both real and personal, belonging to Mrs. H. E. Lee, deceased, in her own right, shall be equally divided between Mrs. Catharine Dwire, her mother, and H. E. Lee, her husband, said division to take place after all her debts are fully paid, including funeral expenses. And it is further agreed, that in case Mrs. Catharine Dwire should die first, her one-half interest shall go to Henry E. Lee; and if Henry E. Lee should die first, then his one-half shall go to Mrs. Catharine Dwire.
    “‘We hereunto set our hands this 8th day of January, 1877.
    [Signed]
    H. E. Lee, Catharine Dwire.’
    “That in February, 1877, the parties to said contract divided the property of Mrs. Lee between them, Mrs. Dwire, at the time of the division, claiming that what she received paid her in full for all her daughter was owing her, but aside from such claim of Mrs. Dwire there is no evidence of any indebtedness to her, nor of the character or amount of such; that prior to such division of the property the said Henry E. Lee had paid all the debts and funeral expenses of the intestate, (except the debt of Mrs. Dwire, if any such existed,) and any claim of Mrs. Dwire was satisfied by such division of the property; that in such division of the property Mrs. Dwire took the Iowa land, and a sufficient amount of notes, and some money and other property, to make one-half of the property, Mr. Lee retaining his, share of one-half in personal property; that the notes taken by Mrs. Dwire were each indorsed by Mr. Lee and delivered to her, and she took them with her to her residence in Fulton county, and that she, at the time of her death, retained the notes named in the decretal order entered in this cause; that Mrs. Dwire departed this life testate, on or about the- 2éth day of April, 1879, by her will nominating the appellants her executors who were afterwards, on the 10th day of May, duly appointed, by the county court of Fulton county, executors of her estate, and entered upon 'their duties as such, and on July 21 filed in said court an inventory of the personal estate, in which was included the said notes, for which, or the proceeds thereof, the order in this case was rendered; that at the time the citation was served upon the appellants, they had in their hands the notes for the surrender of which the decree was entered, and the proceeds of other notes collected by them, to the amount named in the said decree; that on the 19th day of February, A. D. 1880, the said Henry E. Lee filed his petition in the county court of Knox county, it being the county of Mrs. Lee’s residence at the time of her death, praying for the appointment of Thomas McKee as administrator of the estate of Mrs. Kate H. Lee; that letters were issued to him, dated March 15, 1880, and he qualified as such administrator; that thereafter, and before the commencement of this proceeding, he made a demand in writing upon the appellants for the personal property so received by Mrs. Dwire, upon the division aforesaid, and that they refused to comply with such demand; that said Henry E. Lee prepared and had filed an inventory of the estate of Mrs. Lee, and had the adjustment day named, but no debts were then, nor have there been since, to the day of the trial in the circuit court of this cause, proved against the estate of Mrs. Lee; that said McKee has himself taken no interest in the administration of said estate, and has not received or taken from said Lee any of the estate retained by him upon the division aforesaid, and we find that his appointment was obtained by said Henry E. Lee for the sole purpose of commencing these proceedings.”

      The errors assigned are: o
    First—The Appellate Court erred in not affirming the judgment and order of the circuit court.
    Second—The Appellate Court erred in reversing the judgment and order of the circuit court.
    Third—If the judgment of the circuit court was properly reversed, then the cause should have been remanded.
    Fourth—The Appellate Court erred in not permitting the cause to stand as “decided upon its merits.”
    Messrs. McKenzie & Calkins, for the appellants.
    Messrs. Williams & Lawrence, and Mr. John A. Gray, for the appellees.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This is a summary statutory proceeding, under section 80, chapter 3, of the Revised Statutes of 1874, page 118. It does not follow because it is proved another party is in possession of goods, chattels, etc., of the deceased, that the court shall order that the same be delivered to the executor or administrator. The language is, the court “may” examine the party under oath, and “hear the testimony of such executor or administrator, and other evidence offered by either party, and make such order in the premises as the case may require. ” If the order can accomplish no substantial good, clearly the case does not require that it be made. The court is vested with a discretion, and not compelled, as a matter of arbitrary law, to make any specific order. This discretion, of course, is not unlimited, but should be exercised so as to best preserve the estate, and promote its' honest, complete and prompt administration. But no arbitrary rule of law intervenes, requiring the doing of purely formal or useless acts.

This court has held that the county court, in allowing claims against estates, is not limited to the technical legal rights of parties, but should act upon their equities. (Dixon, Assignee v. Buell, Admr. 21 Ill. 203; Moore v. Rogers, 19 id. 847.) The principle is applicable here. We do not conceive it was ever intended the county court should order property to be delivered by its equitable owner to an executor or administrator who happened to be simply the technical legal owner. In such case, as in the allowance of claims against estates, the court should look beyond the mere legal right, and protect the equitable right of possession. It is quite true this is not an equitable proceeding,—it is purely statutory,—but in enforcing statutory proceedings . it is not uncommon to look to and protect the equitable rights. Indeed, instances are not wanting, where, by statute, purely equitable defences have been allowed to be interposed in common law suits,—and yet, in all such cases, the suit still remains, technically, one at law.

In Lewis v. Lyons et al. 13 Ill. 117, it was held a court, of equity will not require an heir to pay over money to an. administrator when- such administrator has no debts to pay, nor any use to make of it connected with the estate, merely that he may retain it for his own benefit, or be paid his costs and commissions. And in Dorman et ux. v. Tost et al. 13 Ill. 127, and Fitzgerald v. Glancy, Admr. 49 id. 465, it was held that real estate could not be sold by an administrator where there were no debts owed by the intestate at the time of his death. In the last named case the court, among other things, said: “We concur fully with the Supreme Court of Pennsylvania, in Walwoorth v. Able, 52 Penn. 370, and with the Supreme Court of Missouri, in Farrar v. Dean, 24 Mo. 16, that where there are no debts at the time letters of administration are granted, and no question of distribution requiring the intervention of an administrator, the expenses of administering,—the result of unnecessary interference,—can not be regarded such a debt as would justify a proceeding to sell the lands. Such costs and expenses are not due by the deceased, and only arise from the officious and unnecessary intermeddling of the administrator. ” If this be sound, it must necessarily rest upon the principle that in such case there was no legal necessity for the appointment of the administrator, for if there was a legal necessity for his appointment, the consequent costs would, manifestly, be a legal charge against his estate; but there being no debts to pay, and no personal estate'to distribute, there was nothing for an administrator to do. Under the facts found, there was as little here for an administrator to do, as there. The debts were all paid by the husband, and he was the sole heir of the personal property. Being in possession, there was no need of an administrator to obtain possession. It is true an administrator is the proper party to sue upon notes payable to the intestate, as held in Leamon et al. v. McCubbin et al. 82 Ill. 263; but where no such suits are to be brought, there can, of course, be no necessity for an administrator for that purpose.

Upon the. death of Mrs. Kate Lee, her husband, Henry R. Lee, was the sole heir of her personal estate, she having left neither children nor descendants of children surviving her. He was entitled to all her personal property after the payment of her debts. As was said in Lewis v. Lyons et al. supra: “The administrator, it is true, may have the legal title to the personal estate,—not, however, in his own right, but as trustee, and for a particular purpose. When the debts are paid the heir is the cestui que trust, and as such is entitled to the surplus of the assets after the debts are paid. There being no debts unpaid in this case, the heir has the entire equitable interest. ” This interest was here coupled with the actual possession of the property. Obviously, it concerned no one but Lee what then became of that property. He might sell it or give it away, as he chose; and after having disposed of the promissory notes voluntarily, and without fraud on either side, it could no further concern him that his equitable assignee could not maintain an action at law on them in his own name.

To test the reasonableness of the position of the administrator here, let it be supposed Lee had himself brought an action for the possession of these notes. Surely it would admit of no controversy that he could have no standing. He voluntarily parted with whatever of title he had, and their possession, and nothing has since transpired to invest him with new or different rights in that regard,—and yet he seeks to do precisely the same thing in this form of proceeding. The facts found show that he procured the administrator to be appointed for the sole purpose of prosecuting this proceeding,—that is, to enable him to do indirectly what he could not do directly. If the notes be delivered to the administrator,- he has only the duty of paying the proceeds to Lee; but Lee not being entitled to them equitably, he could be made, by the decree of a court of chancery, to pay them over to appellees. It would. he an unreasonable doctrine if the equitable assignee and lawful holder of a promissory note could be compelled, without his consent, to give it up to an administrator, and to pay him the costs of collection, when the maker stood ready and willing to pay the note without suit, and without expense or delay,—and yet the position of the appellant comes precisely to this.

There may be a necessity for an administrator even where there are no debts, for the purpose of collection and distribution ; but where there are no debts, and the property is already distributed, and there are no suits to be brought, there can be no necessity for an administrator. The law does not make it indispensable that every estate shall be administered, merely for the sake of administration. What is here said has no reference to any rights Lee may have under the contract he made with Catharine Dwire. We neither determine that he has, or has not, rights under that contract. If he has rights under it, he must enforce them in a suit in his own name. He can not enforce them in the present proceeding.

The opinion of the Appellate Court in this case, as reported in 10 Bradwell, 62, has our entire concurrence.

The judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author:
Mr. Chief Justice Scott
      Sheldon, Scholfield and Craig, JJ.,

license: Public Domain

text:
    George W. McMahill et al. v. Margaret A. McMahill.

      Filed at Ottawa March 28, 1883.

    1. Homestead—how extinguished or lost. There are only two modes by which the homestead right or estate may be extinguished: First, by a release, waiver or conveyance in writing, subscribed by the householder and his wife, or her husband, if he or she has one, and acknowledged in the same manner as conveyances of real estate are required to be acknowledged; or, second, by conveyance of the premises, with abandonment or giving up of possession.

      % Same—can not be released by ante-nuptial contract. A widow’s homestead right can not be barred by an ante-nuptial contract to that effect. Such contract may bar dower, but not the right to the homestead, even though the widow may not have any issue of the marriage. The provision securing a homestead being a matter of public concern, can not be abrogated by private contract.
    Appeal from the Circuit Court of Warren county; the Hon. John J. Glenn, Judge, presiding.
    The original hill in this case was brought by the heirs of William McMahill for a partition of the lands of which he died seized, among themselves. The widow of decedent was made defendant, and the bill charged she was not entitled to dower or homestead in the lands of her late husband, on account of an ante-nuptial agreement. In 'her answer defendant admits the making of the ante-nuptial contract, but insists it is not obligatory on her because it was so unfair and unreasonable, as, by its terms, she was only to have $1000 “in lieu of dower, homestead, widow’s award and share in his estate, of whatever kind or nature, which estate, she alleges, was worth $75,000. Omitting the date and signatures, the following is a copy of the ante-nuptial contract between the parties:
    “This indenture, made and entered into by and between Eev. William McMahill, of the one part, and Margaret Kelly of the other part, both of the county of Warren, and State of Illinois, witnesseth: That in consideration of a marriage about to be entered into by and between the said parties, it is agreed that neither party shall, by reason of said marriage, have any right, title or interest in the property of the other during their joint lives, nor afterwards, except that the said Margaret shall live with the said William, with her two children,, and be supported by him. William is to instruct said children while they stay with him, as a father, and not charge them anything, nor shall there be any charge for the labor of said children. In case the said Margaret survives the said William, she shall be entitled to $1000 in cash from the estate of the said William McMahill, in lieu of dower, homestead, widow’s award and share in his estate, of whatever kind or nature, and no more. ”
    On the final hearing of the cause, the court found the ante-nuptial contract was valid, and binding upon the widow, and that it barred her claim to dower in the estate of her late husband, but did not bar her claim to homestead, under the statute. Complainants bring the case to this court on appeal, and assign errors on the record. No cross-errors are assigned by the widow, whose rights are affected by the decree.

      Messrs. Stewarts & Grier, for the appellants:
    The controversy arises with reference to the ante-nuptial contract between the deceased and his widow, and involves its validity and construction. The right of the parties to make such a contract has long been settled in the affirmative. 2 Story’s Eq. Jur. secs. 1370, 1371; Phelps v. Phelps, 72 Ill. 545; Jordan v. Clark et al. 81 id. 465; McGee et al. v. McGee et al. 91 id. 548.
    In construing such contracts they are to be construed liberally “for the purpose they were intended to accomplish. ” Phelps v. Phelps, supra; Ardis v. Printup et al. 39 Ga. 648.
    The court below held it barred the claim of dower, and we contend it bars the right to an estate of homestead. That estate is created, not for the widow alone, but for the benefit of infant children. In this case there wat no issue of the marriage, and no minor children to be protected, The statute was never intended to deprive an adult of the power of alienation, or to deal with his or her rights, whether present or prospective.
    Mr. H. Chrisman, and Messrs. Porter & Porter, for the appellee:
    We admit the parties might have made a valid ante-nuptial contract; but the utmost fairness and good faith are requisite before courts of chancery will enforce the same. The presumption seems to be against their validity, and the burden is upon the husband, or those claiming under him, to prove the perfect fairness of the transaction. Pierce v. Pierce, 71 N. Y. 154; Darlington’s Appeal, 27 Am. Rep. 726, (86 Pa. St. 512;) Story’s Eq. Jur. 310; Rockafellow v. Newcomb, 57 Ill. 186.
    In this case the provision was utterly unjust and contemptible in comparison with what she was waiving, and, as the proof clearly shows, was entirely ignored by both parties, and the court should have held that the contract, if it ever had validity, was completely set aside by the acts and declarations of George W. McMahill' in his lifetime, with the full consent of the appellee. Colehour v. Morrill, 82 Ill. 618.
    But even if the court should hold that the appellee was bound by this unfair agreement, forced upon her upon the point of marriage, and at a time when she was in the presence of the magistrate who performed the ceremony, and that there was not sufficient evidence produced by appellee to set the contract aside, still it is clear that the court below properly held that the estate of homestead was not affected by it. Public policy will not allow parties to waive such an estate in advance. (Thompson on Homesteads, sec. 447; Boyd v. Cudderback, 31 Ill. 119.) It can only be parted with by the formalities prescribed by law. (Abbott v. Cromertie, 72 N. C. 548; Beavin v. Speed, 74 id. 548.) Our statute provides the only way in which it can be released. Bev. Stat. chap. 52, sec. 4; Kingman v. Higgins, 100 Ill. 319; Black v. Lusk, 69 id. 70.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

It will be perceived the circuit court found, and so decreed, that the ante-nuptial agreement between the parties was valid, and obligatory upon defendant, and was effectual to cut off or bar her dower in the lands of her late husband, the ancestor of complainants. Touching that decision defendant has assigned no cross-errors, and, of course, can make no complaint in this court. The only question, therefore, that remains to be considered, is, whether the ante-nuptial contract cut off or barred defendant’s claim to homestead in the premises on which she and her late husband resided, and which she has not since abandoned. The heirs claiming the estate are children of the decedent by a former wife. Defendant had no children after her second marriage. Nor does it appear that any of her husband’s children are minors, residing with her. The claim put forth is to the right of homestead, under the statute, in lands on which she and her husband resided in his lifetime, as his widow, unaffected by any collateral considerations.

Section 1 of the Homestead act,, in force July 1, 1873, secures to every householder having a. family an ■ estate of homestead in the farm or lot occupied by him or her, which can only be extinguished in the mode provided in a subsequent section of the act; a,nd section 2 of the same act provides such exemption shall continue after the death of such householder for the benefit of the husband or wife surviving, so long as he or she shall continue to occupy such homestead. Only two modes are provided by which the homestead right or estate may be extinguished: First, by a release, waiver or conveyance in writing, subscribed by such householder and his wife, .or , her .husband, if he or she has one, and acknowledged in the same manner as conveyances of real estate are required to be acknowledged; or, second, by conveyance of the premises, with abandonment or giving up of possession. It is further provided in the act concerning conveyances, in force July 1, 1872, that no deed or other instrument shall be construed'as releasing or waiving the right of homestead, unless the same shall contain a clause expressly releasing or waiving such right, and in such case the certificate of acknowledgment shall contain a clause substantially as follows: “Including- the release or waiver of the right of homestead,” or other words which shall expressly show that the parties executing the deed or other instrument intended to release such right. These provisions of the statute show that homestead is a right secured to both husband and the wife, and is one of which they can not be dispossessed-except by their voluntary action in the mode pointed out by statute. It is ■ protected by the strongest guaranties of the law, and no release or waiver of such right shall be construed as valid unless acknowledged as required by the Conveyance act. After her marriage defendant enjoyed the homestead of her husband, and after his death the law continued it in her. favor so long as she should choose to occupy it. It is obvious she could not contract, after marriage, by any written instrument not executed in conformity with the statute, to release her homestead, that would be binding upon her after the death of her husband. How, then, could she do it before marriage ? If a contract to release homestead, not conforming to the statute, made after marriage, is not valid, certainly such a contract made before marriage, for still more cogent reasons, would be without binding obligation. The policy of the law is, as this court has had frequent occasion to declare, to preserve the homestead for the benefit of the party or parties entitled to it. It has been said the statute was enacted from motives of public concern, and that parties will not be permitted, by ante-nuptial agreements, to annul its beneficent .provisions designed to subserve the common welfare. In McGee v. McGee, 91 Ill. 548, it was held the homestead right could not be barred by an ante-nuptial contract. In that case there were children of the parties, but it is apprehended that fact would not change the basis of the decision. The principle is, the statute secures the homestead to the husband or wife surviving, and such right can only be extinguished in the mode provided by the statute.. It can not be done by an ante-nuptial agreement, for the simple reason that is not one of the modes provided by statute by which such right may be extinguished. In Phelps v. Phelps, 72 Ill. 545, it was held the ante-nuptial agreement between the parties barred dower, but did not prevent the widow from sharing in the provisions the law made for the benefit of the family and herself. It was for the reason the provision the law made for her and the family could not be abrogated by private contract. It was thought to be a matter of public concern, for which the legislature could well provide for its permanent security. The case being considered is within the principle of the cases cited, and the decree of the circuit court will be affirmed.

Decree affirmed.

Sheldon, Scholfield and Craig, JJ.,

dissenting:

Ante-nuptial agreements in regard to property rights have received the repeated sanction of this court. (Phelps v. Phelps, 72 Ill. 545; Jordan v. Clark, 81 id. 465; McGee v. McGee, 91 id. 548.) In the case first named, the court admitted that such a contract would have effect to debar the wife of dower in the husband’s real estate, and prevent her taking any portion thereof as heir, under the statute, but would not deprive her of her right to the specific articles of personal property allowed by the statute in all eases for the benefit of the widow and family of a deceased person. But this was on the express ground that the latter was a provision which was not for the sole benefit of the widow, but for the benefit of herself and the family, and that she could not be permitted, by an act of hers, to defeat such a provision, which was for the family’s benefit as well as her-own. In the last named case the question was made whether such a contract would defeat the homestead right of the widow where there were two minor children, and it was held that it would not,—that the homestead right was not in the widow alone, but also in the minor children during their minority, and in order to their enjoyment of it the widow must have it also, and therefore, the homestead right being for the benefit of the widow and minor children, it would not be cut off by any ante-nuptial contract. The rights claimed by the widow in the above cases were allowed to her against her ante-nuptial contract, because the statutory provisions under which they were claimed were for the benefit of others besides herself, and the rejection of her claim would have been the denial to such others of the benefit of such provisions; and the inference from the reasoning in those eases is, that the decisions would have been different if the widow’s own personal interests alone had been concerned. In the present case it is the personal interest of the widow alone which is involved. There are no minor children. It is the widow alone who can claim a homestead right in the property,- and in such a case we think consistency of decision requires that the .homestead right of the widow should be held to be barred by the ante-nuptial agreement, as well as the right of dower. This we regard as in consonance with the former decisions of this court respecting such agreements. The statutory provision as to the mode of release of the homestead right we consider as applying only to -releases made during the subsistence of the marriage relation between the parties.


author: Mr. Justice Walker

text:
    Anna Danforth v. George W. Danforth.

      Filed at Ottawa March 28, 1883.

    1. Divorce—refused, if the parties collude to procure one. The courts will never grant a divorce when it is made to appear that there is an agreement that the defendant will not defend against a decree, or that the parties have colluded to obtain a divorce, or so as to produce that result; and when it is shown that at the same time at which a decree of divorce is entered, an agreement was entered into between the parties that the divorce should be granted, fixing the alimony to be given, it is error for the court to refuse a motion to vacate the decree and allow a defence to be made.
    2. Same—decree for, may be changed or vacated. A decree of divorce, together with the record of other proceedings during the term it is entered, remains in fieri, and under the control of the court to amend, change or vacate, as justice may require; and if, during the term, it is shown that the divorce was the result of collusion, Or was aided or brought about by a collusive agreement of the parties, the court, on motion of either party, should vacate the decree and let in the defence.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Iroquois county; the Hon. Franklin Blades, Judgej presiding.

      Messrs. Doyle & Morris, for the appellant:
    Collusion may be by keeping back evidence of what would be a good answer, or by .agreeing to set up a false case. Jessup v. Jessup, 2 S. & T. 301.
    Collusion is an agreement between husband and wife for one to represent in court that the other has committed a breach of the marriage relation, for the purpose of obtaining a divorce, and it will bar a divorce. 2 Bishop on Marriage and Divorce, sec. 28; Mansfield v. Mansfield, Wright, 284; Lloyd v. Lloyd, 2 S. & T. 667; Williams v. Williams, 1 Hag. Con. 299.
    As to what evidence of collusion will prevent a divorce, see Goodwin v. Goodwin, 4 Day, 343; Stoutenberg v. Lybrand, 13 Ohio St. 228; Sayles v. Sayles, 1 Foster, 312; Weeks v. Hill, 38 N. H. 199; Collett's case, 2 Mod. 314; Davenbaugh v. Davenbaugh, 28 Am. Dec. 445; Wharton on Evidence, sec. 978.
    Confessions are to be rigidly scrutinized, to see that they bear no marks of collusion. Matchin v. Matchin, 6 Barr, 332; 2 Bishop on Marriage and Divorce, 244.
    Under the peculiar circumstances of this ease the court erred in refusing to open the decree and let in the defence.
    Messrs. Kay & Euans, and Mr. Charles H. Wood, for the appellee:
    It is true the decree shows there was an agreement for an allowance to the wife, but it also shows this was wholly disconnected with the action of the court in granting the divorce. This is a practice that is authorized by law. Marvin v. Collins, 48 Ill. 156; Buck v. Buck, 60 id. 241.
    It is no collusion if the plaintiff has suffered real injury, and in good faith seeks relief,—that both parties wish the divorce. 2 Wait’s Actions and Defences, 591; Hopkins v. Hopkins, 39 Wis. 167. See, also, 2 Bishop on Marriage and Divorce, sec. 28 a, sec. 29.

      The petition on which the judgment vacating the decree is to be rendered, must fully and specifically set out the particular fraud relied upon. 2 Bishop on Marriage and Divorce, [6th ed.) sec. 753 b; Groff v. Groff, 14 S. & R. 181; Adams v. Adams, 51 N. H. 396; This is not done in this case, either in the motion filed or in the affidavits presented by appellant to sustain her motion.
    Again, because of the grave consequences of annulling a decree, the evidence must be absolutely clear and conclusive. 2 Bishop on Marriage and Divorce, sec. 753 b; Gechter v. Gechter, 51 Md. 187; Lord v. Lord, 66 Maine, 265; Hopkins v. Hopkins, 39 Wis. 167. So far from being clear, we submit that the affidavits of appellant do not make'a prima facie case of fraud and collusion, as against the appellee.
    Again, a decree of divorce will not be set aside on the application of a person who is himself a party to the fraud. Budham v. Phillips, Ambler’s Ch. 763; Adams v. Adams, 51 N. H. 397; Tebbetts v. Tilton, 31 id. 287; Nichols v. Nichols, 25 N. J. Eq. (10 C. E. Green,) 60.
    Again, the law requires that it should be made apparent that the party moving to set aside the decree is acting from good motives, and not from any expected personal advantage. Singer v. Singer, 41 Barb. 139; Kirrigan v. Kirrigan, 2 McCarter, (N. J.) 147.
    Again, the appellant has had the full benefit of the decree, by taking under it the large amount of money that appellee allowed her. Having ratified it, she can not now object that it is not obligatory upon her. Brown v. Simpson, 9 B. Mon. 458.
   Mr. Justice Walker

delivered the opinion of the Court:

This was a bill filed by appellee, against appellant, for a divorce. The ground alleged was extreme and repeated cruelty. On the return day of the summons an answer, was filed by defendant fully denying all the acts of cruelty and misconduct charged in the bill, and on the same day a decree of divorce was entered dissolving the marriage' relation between the parties. The decree gives to her $11,000 in full of alimony, dower, and all and every claim, of any kind and nature whatsoever, against complainant and his estate. Afterwards, and at the same term, appellant made a motion to set aside the decree, and to be let in to make a defence. The motion was based on affidavits that the decree was obtained by fraud and collusion, and without her consent. She swears that at a meeting between appellant and a number of his friends and relatives with her attorney, (she being at his office, but not seeing them, and without understanding or knowing the purport of the arrangement,) an agreement was entered into between appellant and her attorney, which was signed by them; that she did not sign it, or authorize any one to sign it for her. The motion was urged on two grounds: First, that her attorney, in collusion with appellant, had made the agreement without her consent and against her will, and signed the agreement contrary to her will; and second, that the stipulation is, or amounts to, a collusive agreement that defence should not be made against a decree for a divorce.

In the view we take of the case we deem it unnecessary to consider the somewhat conflicting statements in the affidavits filed on the hearing of the motion. We shall therefore only consider the. purport and effect of the stipulation. It is this :

“It is hereby stipulated by the undersigned, that the within sum of $29,000 is deposited with the Union National Bank, Chicago, by George W. Danforth, as a special deposit, to be paid to Anna Danforth whenever she or her attorney produces a certified copy of a decree of divorce from said Anna Danforth, in the circuit court of Iroquois county, Illinois, said divorce to be granted on or before November tenth, (10,) 1-881,'or said money to be returned to said Danforth. She is also to produce a certificate of the clerk of said circuit court that the lands described in a certain deed, dated Octoher 23, 1881, from George W. and Anna Danforth to Almon G. Danforth, are free and clear of all incumbrances; and further, shall also deliver to said George W. Danforth a certain contract of sale of land made by said Anna Danforth to one John F. Raumets and-Fry, duly assigned by her to said Almon G. Danforth.

Anna Danforth,

George W. Danforth.

“E. G. Asay, sub. for Anna Danforth.”

It is conceded, and such is the unquestioned law, that if there is an agreement in a divorce case that the defendant will not defend against a decree, or the parties collude to obtain a divorce, or so as to produce that result, the relief will not be granted. It is upon the principle that the parties do not have the only interest, but the public also has an interest in the marriage relation, and in its proper maintenance ; and the courts have ever been vigilant in preventing divorces from being obtained by fraud or collusion of the parties. But this stipulation, whether obtained by collusion between the attorney of appellant and appellee, or whether appellant was fully informed and freely consented thereto, is, we think, in spirit and intent, an agreement that the divorce should be granted, as well as for the amount of alimony that should be paid. The stipulation was procured by the attorney of appellant, to be used, and was used, on the trial. It stipulates that if she or her attorney shall produce, before the 10th day of November, 1881, a copy of a decree of divorce in the case then pending, there should be paid to her §29,000. The agreement does not state that any portion of that sum was to be in part or in full of alimony. It, however, may be inferred from the agreement that the whole was for real estate appellant was to convey to A. G. Danforth, a brother of appellee. Is it not manifest that, appellant’s attorney having agreed she should produce a decree of divorce by the time named, it was intended he should aid in procuring the divorce, or at least would not oppose it; and if appellant knew the contents of the agreement, can any one doubt that she intended and desired he should ? The effect of this agreement must have been precisely the same as had appellant and appellee agreed that she would do nothing to prevent him from obtaining a divorce, and, if necessary, she would assist for the purpose. It is not the mere form of words, but it is the intent,—the thing or purpose intended to be accomplished,—that constitutes the agreement, when that can be determined from the instrument itself. Here the manifest intention was, that complainant should obtain the divorce and appellant to receive the money. It is true an answer was filed, but no evidence was produced, notwithstanding appellant swears that facts existed that would, if proved, have prevented the decree that was obtained; yet the decree was obtained, as was expected and intended when the agreement was executed.

There was not improper delay in entering the motion to set aside the decree. It was made at the same term, and whilst the court had control over all proceedings had at the term. The decree had not become an ■ unalterable record. It, with the records of other proceedings of the term, was still in fieri, and under the control of the court to amend, change or vacate it, as justice might require.

But the casé of Bowman v. Bowman, 64 Ill. 75, is referred to as sustaining the decree of the court below. That case, in its main features, is unlike this. There was in that case nothing that could be construed into an agreement that defendant would not resist a decree for a divorce. That is the important question in this case; and as there was an agreement in this casé that had the effect and operated and produced such a result, it was error for the court to refuse to vacate the decree and permit appellant to defend the suit, and for that error the decree of the Appellate Court must be reversed, and the cause remanded.

Decree reversed.


text:
    William D. Kerfoot v. Timothy Cronin et al.

      Filed at Ottawa Nov. 10, 1881

      Opinion on rehearing filed Sept. 27, 1882.

    1. Appeal—whether freehold is involved. A bill filed to foreclose a deed of trust, which also seeks to show title in the maker of the trust deed under an unrecorded conveyance to him by a person under whom the defendants claim title as innocent purchasers for value, without notice of such unrecorded deed, and to have the defendants’ title made subordinate to the complainant’s rights under the deed of trust and to the title of the grantor in the deed of trust, involves a freehold, within the meaning of the statute giving an appeal from the trial court directly to this court when a freehold is involved in the litigation.
    2. Recording law—when record of deed is notice of existence of deed and recitals therein, and to whom. The recitals in a recorded deed or bond bind no one except the grantors and those claiming under them by grant subsequent to the record of such deed. A purchaser is not chargeable with notice of every fact that may appear of record, without regard to whether it falls within the line of his chain of title; but if he is chargeable with notice of a recorded deed, he will also be held to notice of all its recitals.
    3. The purchaser of land is not chargeable with notice of the record of an- existing deed for the same land from one person to another, both of whom are apparently strangers to the title of the purchaser’s grantor, and not being chargeable with notice of the existence of such deed, though it is recorded, he will not be held to constructive notice of any recitals contained in it.
    4. Where A, in whom the record showed no title, made a deed of trust to B for certain real estate, which was recorded, and recited it was given to secure two notes of the grantor to 0, in whom the record of deed showed the title for the purchase money of the property, and 0 indorsed and sold the notes, and after the record of the trust deed sold and conveyed the premises to innocent parties for value, who had no knowledge of any prior conveyance by him to A, or of the deed from A to B, or the recitals therein, it was held, that the record of the deed from A to B was no notice to such subsequent purchasers from 0 of the existence of the deed or of any of its recitals, A and B both being strangers to the chain of title acquired by such purchasers.
    5. Purchaser—evidence of purchase for value as against prior unrecorded deed. The recital of payment of the consideration in a subsequent purchaser’s deed for land, is sufficient evidence of a purchase for value as against the rights of parties claiming under a prior unrecorded deed from the same grantor, until rebutted.

      6. Evidence—right of several parties to cross'-exardine 'witnesses. It would seem quite clear that in case of separate and distinct defences each party defendant would have a right to cross-examine as to any matter specially affecting his peculiar defence, no matter how numerous the parties may be; but in case of a common defence the cross-examination should be limited, within a reasonable discretion, to the necessities of the case. No inflexible rule can be laid down.
    Appeal from the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.
    Mr. W. T. Burgess, for the appellant:
    The record of the deed from Hansbrough, for the use of Walker, was notice to the defendants, none of whom claimed title of Walker until after such record. Walker was the substantial party to whom this deed was made. He is the real grantee in the deed.
    A purchaser is chargeable with notice of every instrument, and the contents and legal effect thereof, from or to his immediate or remote grantor, relating to the title to the lands he purchases, at the- time he puts his own conveyance of record. Chicago, Rock Island and Pacific R. R. Co. v. Kennedy, 70 Ill. 350; Clark v. Manning, 95 id. 580; Gaytes v. Franklin Savings Bank, 85 id. 256; Morrison v. Brown, 83 id. 562.
    It was incumbent on defendants below to show a valuable consideration paid for the land. Chaffin v. Heirs of Kimball, 23 Ill. 39; Powell v. Jeffries, 4 Scam. 387; Smith v. Wright, 49 id. 403; 1 Daniells’ Chancery Practice, 698.
    The production of a deed reciting payment of a consideration is no evidence of that fact under the issue made in this case. Stone v. Duvall, 77 Ill. 345; Boone v. Chiles, 10 Pet. 177; Moshier v. Knox College, 32 Ill. 155; Partridge v. Chapman, 81 id. 140.
    Walker and his privies in estate with notice, are, under the circumstances of the case, estopped to deny the fact of a deed to Hansbrough conveying this land to him.

      Messrs. McCoy & Pratt, for a part of the appellees.
    Messrs. Rosenthal & Pence, for the appellees Greenebaum, Foreman, and others:
    A purchaser is not chargeable with constructive notice of any instrument of record, unless it be in the chain of title, or be made by one in some way connected with the property involved in interest, and brought to the notice of the purchaser. Carbine v. Pringle, 90 Ill. 306; Irish v. Sharp, 89 id. 265; St. John v. Conger, 40 id. 535; Manly v. Pettee, 38 id. 128; Dexter v. Harris, 2 Mason, 531.
    No deed, in point of fact, was ever executed or delivered by Walker to Hansbrough, and the indebtedness for which the Hansbrough security was pledged to Page & Sprague has been paid, and their receiver has no right to this security.
    Messrs. Bisbee & Ahrens, Messrs. Gault & Low, and Messrs. Rubens & Hiestand, for the appellees:
    That the recitals in the deeds are evidence of the payment of the purchase money, counsel cited Wightman v. Hart, 37 Ill. 123; Stone v. Duvall, 77 id. 475.
   Mr. Justice Scholfield

delivered the opinion of the Court:

Bill was filed by appellant, in the circuit court of Cook county, against Timothy Cronin and many others, on the 21st of May, 1880, alleging, among other things, that on or about the 10th of May, 1872, Samuel J. Walker, being seized in fee of certain real estate therein particularly described, made and duly acknowledged and delivered to William Hansbrough a deed of that date, whereby, for the consideration of $25,000 therein expressed to have been paid to him, he and his wife, Amanda M. Walker, conveyed said lands to said Hansbrough, in fee, with covenants of warranty, and release of dower, etc.; and it is then alleged that this deed is not in complainant’s possession, biit he begs leave to refer to the same when produced, or its contents are proved. It is also alleged that on the saíne day, and as a part of the same transaction, and to secure the payment of said consideration, Hansbrough made his two promissory notes, each dated that day, for $12,500, payable to order of said Walker, with interest at eight per cent, one at one and the other at two years from date; that each of said notes was indorsed by said S. J. Walker in blank, about the time of their date; that before their maturity they were sold and delivered by Walker to Page & Sprague, for a valuable consideration by them paid to him, and they were subsequently assigned by them to complainant; that at the time of giving said notes and receiving said deed, and also as a part of the same -transaction, Hansbrough made a deed of trust to Samuel M. Moore, trustee, on said real estate, to secure the payment of said promissory notes, which deed of trust, it is alleged, was recorded, and thereafter became notice to all persons purchasing from Walker. And it is also further alleged that a large sum remains due and unpaid on the promissory notes; that certain persons, named defendants, claim an interest in the property, but that they acquired their interest with notice of, and subordinate to the rights of complainant. The prayer is for a foreclosure, etc., and for general relief. The answers deny the execution and delivery of the deed by Walker to Hansbrough, and all knowledge thereof, and also all knowledge of the deed of trust from Hansbrough to Moore. The court below decreed that the bill be dismissed, and from that decree complainant prayed and perfected the present appeal.

A preliminary question, raised by a motion to dismiss the appeal, made before the hearing and held up for further consideration, is, does this court have jurisdiction ? The ground of the motion is, that the case is one that ought to have gone by appeal, in the first instance, to the Appellate Court. Of course it ought not to come here unless it involves a freehold, for it is plain it does not fall within either of the other classes of cases that may be brought here, in the first instance, by appeal from the trial court. A majority of the court, however, are of opinion that the case does involve a freehold, and, consequently, that the appeal is well brought. To authorize a decree for the complainant, title must be established in Hansbrough, or it must be shown that the defendants are estopped,—in other words, legally compelled to admit title in him. It is put in issue by the answers whether Hansbrough has such title, or the defendants are legally compelled to admit that he has; and the effect of a finding upon either of these issues, as against the defendants, is not simply to postpone them to Hansbrough’s deed of trust to Moore, but also to Hansbrough’s title. If they are postponed to that title, they do not have even an equity of redemption in the property. The motion to dismiss must be overruled.

The first question made by counsel for appellant upon the merits of the case is, was the record of the deed of trust from Hansbrough to Moore notice to the defendants, they taking title from Walker subsequent to the recording of that instrument. The evidence fails to prove, with sufficient certainty, that a deed was, in fact, ever delivered by Walker to Hansbrough. The record fails to disclose such deed. Walker, himself, testifies that such deed was made, but that it was never delivered. Hansbrough shows he has no reliable recollection on the subject. His impressions were, at first, that such a deed was delivered to him, but, at last, that there was no delivery, and it is not claimed that there are other witnesses testifying in regard to it.

The trust deed from Hansbrough to Moore contains this recital, in declaring the trust upon which it was made: “Whereas, the said party of the first part (Hansbrough) has made his two certain promissory notes, bearing date May 10, 18T2, payable to the order of Samuel J. Walker, one and two years, respectively, from the date thereof, at the Second National Bank of Chicago, Illinois, said notes being for the sum of $12,500 each, and bearing interest at the rate of eight per cent per annum, payable annually, said notes being given for the purchase money to be paid for the premises hereinafter described, ” etc. The contention of counsel for appellant is, this is constructive notice to all thereafter dealing with Walker in regard to the property, that he has sold and conveyed it to Hansbrough, as well as of the fact that Hansbrough has conveyed it in trust to secure the payment of the specified indebtedness, and in support thereof he cites Gaytes v. Franklin Savings Bank, 85 Ill. 256, Clark v. Manning, 95 id. 580, Chicago, Rock Island and Pacific R. R. Co. v. Kennedy, 70 id. 350, Morrison v. Brown, 83 id. 562, Stumpf v. Osterhage, 94 id. 119, and Chicago v. Witt, 75 id. 211.

In Gaytes v. Franklin Savings Bank, 85 Ill. 256, bill was filed for review of a decree of the circuit court in case of a bill for specific performance, on the ground of a want of proper parties. The trustees, under deeds made to secure payments of indebtedness, were made parties, hut the holders of the indebtedness were not. The court held, where property is sold by a trustee under a power in a deed of trust given to secure the holders of bonds and coupons, and the purchaser files a bill for specific performance to compel the trustee to execute a deed, the holders of the bonds, being the real parties in interest, are indispensable parties. The relief there sought, it will he observed, was by a party claiming under the deed of trust, and no question arose in regard to notice, either actual or constructive. It was simply decided that the equity of the holders of the bonds made them indispensable parties in a proceeding the direct effect of which might be to disturb those equities.

In Clark v. Manning, 95 Ill. 580, the proceeding was to enforce a mechanic’s lien. There was there, also, no question of notice, either actual or constructive, and all that was decided was the same as in Gaytes v. Franklin Savings Bank, supra, namely, that the holder of a debt secured by a trust deed, as well as, the trustee,- is an indispensable party in a proceeding to affect his equity.

In Chicago, Rock Island and Pacific R. R. Co. v. Kennedy, 70 Ill. 350, it was said: “Where deeds are recorded, a purchaser is put on inquiry as to the title, and must be held to have examined the records and seen the deeds thus recorded. Again, when recitals are contained in a deed in the chain of title, he will be presumed to have seen and read it, because a prudent man is presumed to have examined the title before he purchases, and thus has had such notice as would put him on inquiry as to the nature and extent of the claim or incumbrances referred to in the recital, and it is his duty to examine the record and to ascertain what it contains relating to the title before he purchases, and failing to do so he is charged with the consequences of his neglect. ” This, however, was said in reference to incumbrances, etc., disclosed by tracing back a chain of title under -which the, party concluded held, and following up what the record disclosed in reference thereto. It was not intended to, and does not, when properly understood, assert the broad and unqualified doctrine that every purchaser or mortgagee is charged with notice of every fact that may appear of record, without regard to whether it falls within the line of his chain of title or not. It establishes that a party charged with notice of the existence of a deed is bound to know what it recites, and, therefore, if it were here conceded or established that the defendants were chargeable with a knowledge of the existence of Hansbrough’s trust deed to Moore, it would be an authority for holding that they, constructively, knew that it was given to secure the payment of the purchase money. But these defendants do not filai-m under Hanshrough, and the'case is not an authority for holding they were bound to know of Hansbrough’s transactions, disconnected from actual or constructive knowledge, apart from his deed to Moore, that he derived title from Walker.

In Morrison v. Brown, 83 Ill. 562, it was held, under the statute then in force, that a deed of trust by a malried woman upon- her real estate, in which her husband'did not join, was void as a conveyance, but .that it was good notice of the recitals therein so as to protect the vendor’s lien. This lay within the line of the chain of title, the ruling being against a subsequent purchaser from the married woman.

In Stumpf v. Osterhage, 94 Ill. 119, the ruling was, the recitals in a recorded deed or bond will bind no one except the grantors and those claiming under them by grant subsequent to the recitals, and so, instead of supporting, is an authority against the position of counsel.

All that was decided in Chicago v. Witt, 75 Ill. 211, was, that recorded deeds are not notice of the existence of prior unrecorded deeds. What was said as to what might be the law in some supposable ease, was mere supposition, and not the announcement of a rule of law binding upon the court.

Counsel say, Walker, by a deed to himself, of record, recites that he has conveyed this property to Hansbrough, and all these parties claim title under him since that deed was put on record. We are aware of no such deed. There is, in the evidence, no deed from Walker to any one prior to the title of the defendants. The deed of trust, as a link in a chain of title, is simply a deed from Hansbrough to Moore. Walker’s interest is not in the title, but in the proceeds of the sale. Moore, and not Walker, would have to convey to pass any interest vested by Hansbrough’s deed. In Irish et al. v. Sharp et al. 89 Ill. 261, Wightman, claiming to be the owner of the lot in controversy, sold the same to Cyrus A. Sharp, " on July 15, 1867, taking for the purchase money his two notes, of $125 each, payable, respectively, one and two years after date, with ten per cent interest. Cyrus A. and Andrew J. Sharp entered into the possession of the lot, erecting thereon a frame dwelling house and other improvements, when, on July 17, 1868, they sold the same to Eobert G. Moore for $500, assigning to him Wightman’s bond, and taking from Moore two notes, of $224.50 each, payable in one and two years, securing the payment of the same by a mortgage on the lot, which was duly recorded on July 12, 1868. On April 1, 1869, Moore sold the lot to Cook, assigning to him Wightman’s title bond. On July 15, next thereafter, Wightman, upon "the. surrender by Cook to him of the title bond he had executed to the Sharps, executed and delivered to Cook a warranty deed for the lot, and destroyed the bond. This deed was duly recorded. Cook took possession immediately on his purchase from Moore, and occupied the premises until October 3, 1872, during which time he paid Hubert, who had bought Moore’s notes, the note first due, and portions of the second note,—he being cognizant of Moore’s mortgage. On the 3d of October, 1872, Cook sold and conveyed the lot to Amanda E. Irish. She denied all knowledge and notice of the mortgage, and of the several transactions, and claimed to be a purchaser in good faith. The facts there, it would seem, therefore present quite as strong a case against Sharp as do the facts here against the defendants. In both cases the mortgages are on record, and in both there is an absence of anything on record showing that the mortgagor had obtained the title claimed by the defendants. It was there held that Sharp was not affected by the mortgage, because it did not lie in the proper and regular chain of title. The case is sustained by Manly v. Pettee, 38 Ill. 128, to which reference is made in the opinion, and it has been since followed by Carbine v. Pringle, 90 Ill. 302, and, as has been seen, the same principle was announced in Stumpf v. Osterhage, supra.

The principle contended for by appellant’s counsel would, as we conceive, require every record that might possibly affect real estate to be thoroughly examined before a party could be protected in taking a title to or lien upon real estate, the expense and burden of which would practically put an end to all transactions of that kind. The law imposes no such burden. In the present instance the defendants were only-required, in the absence of actual notice, to see whether the records showed any, and what, deeds by or judgments against Walker. They were not required to run through with .the alphabet, and see if, by possibility, in some deed, no matter by or to whom, it is mentioned that the grantee is a trustee for Walker, and that the deed is made to secure the payment of the purchase money.

The position is pressed, with some earnestness, that these defendants are in no position to question appellant’s right to have a foreclosure because they have not affirmatively shown they are purchasers for value. The deeds under which they claim recite the payment of a consideration, and this, until rebutted, is sufficient. Stone v. Duvall, 77 Ill. 475. See, also, Wightman v. Hart, 37 id. 123.

In taking evidence counsel objected to more than one counsel cross-examining the witnesses of appellant. It would seem quite clear that in case of separate and distinct defences each party would have a right to cross-examine as to any - matter specially affecting his peculiar defence, no matter how numerous the parties might be; but in case of a common defence there could be no necessity for this, and the cross-examination should be limited, within a reasonable discretion, to the necessities of the case. Obviously no inflexible rule on the subject can be laid down. We can not say there was any abuse of discretion shown here which calls for our interposition.

We see no cause to disturb the decree below. It will therefore be affirmed.

Decree affirmed.

Mr. Justice Scott : With that portion of this opinion that holds a freehold is involved in this litigation I do not concur, but with that part that discusses the merits of the case I do agree.

Subsequently, upon a rehearing of this case, the following additional opinion was filed:

Mr. Justice Mulkey : The simple question involved in this case is, whether a purchaser of a piece of land from Samuel J. Walker is chargeable with notice of the record of an existing deed for the same land from William Hansbrough to Samuel M. Moore, who are, and were, apparent strangers to Walker’s title.

It is earnestly insisted by appellant that because it appears, from the contents of the deed from Hansbrough to Moore, that that deed was made for the benefit of Walker, it must, therefore, for the purposes of notice, within, the meaning of our recording laws, be treated precisely as if made directly to Walker, which would bring it within the line of Walker’s title. This, as we conceive, is a mere begging of the question, for if a purchaser is not chargeable with notice of -the, record of a deed because it apparently has no connection, with or relation to the title he is purchasing, it is difficult to perceive on what principle he can be held affected with the contents of such deed. The rule is well settled that where-one is chargeable with notice of the record of a deed, he is equally affected with notice of all recitals contained in such deed; and we understand the converse of this rule to be equally true, namely, that where one is not chargeable with notice of the record of a deed because apparently between strangers to his title, he will not be deemed to have constructive notice of any recitals contained in it.

If the Hansbrough deed had been made absolutely to Moore without disclosing any interest in Walker, it is conceded a purchaser from Walker would not be affected with constructive notice of either the record or contents of that deed, and to say that because the recitals in that deed, which is prima facie between parties who are total strangers to Walker’s title, show an interest in the latter, therefore all purchasers from Walker are chargeable with notice of such recitals, would be equivalent to holding that in such cases one will be affected with notice or' not, according to the character of the recitals,—that is, if they do not affect him in any way he will be deemed to have no notice of them, otherwise he will. Such a construction of our recording laws would make them a mere snare, and lead to great hardships. Hansbrough and Moore are apparent strangers to Walker’s title, and hence purchasers from the latter are not presumed to know anything about the Hansbrough deed, and it is only by examining the recitals in it that we ascertain the fact that Walker has any interest in the subject of the conveyance. .

Our reconsideration of this case but confirms us in the views heretofore expressed. We therefore adhere to the former opinion filed in it.


author: Mr. Justice Dickey

text:
    The People ex rel. William T. Johnson, Collector, v. Samuel D. Ward, Receiver.

      Filed at Ottawa March 28, 1883.

    . 1. Taxation—assessment can not be raised without notice. After a town assessor has once made an assessment of the personal property of a taxpayer, and entered the same upon his books, he can not lawfully increase such assessment without notice to the tax-payer. This is so whether such increase be attempted by raising the valuation of the property already listed, or by adding other property to the list and valuing that.
    2. Same—capital stock of corporation must be assessed by State board. The tangible personal property and real estate of a corporation are required to be assessed for taxation by the local assessor, but the capital stock, embracing its intangible property, must be valued for taxation by the State Board of Equalization, and this whether the corporation is solvent or insolvent, or in the hands of a receiver. An assessment of such capital stock by the local assessor of an insolvent corporation is wholly without authority of law, and void.

      3. The statute requires that a sworn statement shall he made to the local assessor of the capital stock of the corporation, to be returned by such assessor to the county clerk, to be by him transmitted to the State Auditor, who is required to lay it before the State Board of Equalization. This statement is to be made by the officers of the company having the custody of its assets, but if the assets are in the hands of a receiver, he is required to make such list. This is applicable to the listing of tangible personal property as well as to capital stock. The listing of the tangible property is for the local assessor to value and assess, while the other is to enable the State board to value and assess the same.
    Appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    On May 1, 1877, the Republic Life Insurance Company was a corporation organized under the laws of Illinois, and doing business as such in this State. Its principal place of business was in the town of South Chicago. J. Alder Ellis was its president. Between that day and the 25th of May of that year the town assessor of the town of South Chicago entered on his books, under the head, “List of taxable personal property in the town of South Chicago, Cook county, and State of Illinois, for the year 1877, ” the following, under the following sub-captions:
    Household and Total personal To whom listed. No. Street. office furniture. Val. in dolls. property. Fair cash val. in dolls. Eep. Life Ins. Co... Eep. Life Build’g. $1000 $1000
    In the printed form in the assessor’s book, on which this entry was made, was a sub-heading, as follows: “Credits, other than of banks, etc.—value in dolls.” Under this subhead nothing was entered on the page or sheet upon which the assessment of $1000 was entered,—in fact no other entry was made in this connection.
    Before May 25, 1877, a statement of the amount of the ■ capital stock of this company was prepared by an employee of the same, under the direction of its officers. This statement' was in due form, according to the printed circulars, instructions and forms prescribed by the Auditor. This statement was not, however, signed by any officer of the company, nor was it given to the assessor by any officer of the company.
    On May 25, 1877, in this state of affairs, proceedings were instituted by the Auditor, in the circuit court of Cook county, to dissolve the corporation and distribute its assets, under the statute, and on that day Ward was appointed by that court a receiver, and as such took control of its property. Soon after this the receiver, finding that no return had been made to the local assessor of the amount of the capital stock of the corporation on May 1, 1877, signed and verified the statement which had been prepared, as above mentioned, and delivered the same to the local assessor. This statement coming into the hands of a deputy in the office of the local assessor, instead of returning the same to the county clerk, to be by him forwarded to the Auditor, for the use of the State Board of Equalization, he entered upon another sheet of the assessor’s book, under the head of “List of taxable personal property in the town of South Chicago, * * * for the year 1877,” and under the sub-head “To whom listed,” the words “Bep. Life Ins. Co.,” and in the same line, on the same sheet, under the sub-head “Credits, other than of banks, etc.—value in dolls.,” the figures “$81,000,” and in the same line, under the sub-head “Total personal property—fair cash value in dollars,” the figures “81,000.” Accordingly the warrant to the collector contained, on one page, a mandate to collect some $79, as a tax upon the $1000 assessment, and on another page, to collect some $6000, as a tax upon the $81,000 assessment.
    Afterwards, the county collector of Cook county intervened in the suit of the Auditor, mentioned above, by a petition to the court, asking that the receiver, Ward, should be directed by the court to pay both of these claims for taxes. Such proceedings were afterwards had that the court ordered the receiver to pay the amount due and unpaid upon the $1000 assessment, but refused to order payment upon the $81,000 assessment, and enjoined the collector from proceeding to collect the latter tax. From this decision the collector comes into this court, seeking a reversal of this decree.
    Mr. Consider H. Willett, for the appellant:
    Section 6, clause 7, chapter 120, Revised Statutes, provides that the personal property of corporations whose assets are in the hands of a receiver shall be listed by him in the name of such receiver. The corporation having a receiver appointed May 21, 1877, the property the State Board of Equalization would have assessed if no receiver had been appointed, became, by such act, subject to assessment by the township or local assessor. See chap. 120, sec. 22, Rev. Stat.
    Chattels having a tangible existence are to be taxed in the locality in which they are situated. Burroughs on Taxation, 59; Railroad Co. v. Morgan, 14 Ill. 163; Wilkey v. Pekin, 19 id. 160; King v. McDrew, 31 id. 418; Dunleith v. Reynolds, 53 id. 45; First Nat. Bank v. Smith, 65 id. 54; Munson v. Crawford, id. 185; Danville Banking and Trust Co. v. Parks, 88 id. 170; Irwin v. Railroad Co. 94 id. 105.
    Assessors act judicially in making their assessments, and courts can not review and revise their action. Const, sec. 1, art. 9; Republic Life Ins. Co. v. Pollack, 75 Ill. 294; People v. Brislin, 80 id. 423; Porter v. Railroad Co. 66 id. 594; Ottawa Glass Co. v. McCaleb, 81 id. 562; Railroad Co. v. Siders, 88 id. 327; Spencer v. People, 68 id. 512; Union Trust Co. v. Weber, 96 id. 346; Burroughs on Taxation, 238; People v. Big Muddy Iron Co. 89 Ill. 116; Madison County v. Smith, 95 id. 335.
    Irregularities in taxation are no longer held to defeat the tax. Thatcher v. People, 79 Ill. 597; Union Trust Co. v. Weber, 96 id. 351.

      Messrs. Hutchinson & Luff, for the appellee:
    The law requires the assessor to assess and value all property as of the 1st day ofo May. (Rev. Stat. chap. 120, sec. 24.) The assessor having made one assessment against the property, in the name of its owner, on the 1st day of May, could not, after the property changed hands, make a sec,ond assessment against the transferee, by which the tax was increased. Darling v. Gunn, 50 Ill. 424; Cleghorn v. Postlewaite, 43 id. 428.
    The statute requires the assessor to make demand on the owner. (Rev. Stat. chap. 120, sec. 78.) This he did not do, and a second assessment after the 1st day of May, without demand or notice against property transferred to the receiver subsequent to May 1, is illegal.
    The return upon which the assessment was made was made under section 32, chapter 120, Revised Statutes, and was for the purpose of furnishing the State Board of Equalization -the information required by that section as to the value of the capital stock. This tax is, therefore, illegal, the assessment having been made upon an erroneous basis, either fraudulently or by mistake, and in eases of fraud or mistake a court of equity will enjoin the collection of an unjust tax. Du Page v. Jenks, 65 Ill. 287; Drake v. Phillips, 40 id. 388; Vieley v. Thompson, 44 id. 9; Supervisors v. Campbell, 42 id. 490; Cleghorn v. Postlewaite, 43 id. 428; Darling v. Gunn, 50 id. 424.
    The assessor must ascertain, or make an effort to ascertain, the value of the property assessed. The deputy assessor acted upon a return made for the State Board of Equalization, which return included real property in other States, and made a pretended assessment without exercising his judgment in the matter at all. His act in this matter was therefore nugatory. Const. sec. 1, art. 9; McAuley v. Carter, 22 Ill. 58; Spencer v. People, 68 id. 512.

      The receiver having no notice of such increased assessment, could not appeal to the board of review or county board.
   Mr. Justice Dickey

delivered the opinion of the Court:

After a town assessor has once made an assessment of the personal property of a tax-payer, and entered the same upon his assessor’s books, he can not lawfully increase such assessment without notice to the tax-payer. (Cleghorn v. Postlewaite, 43 Ill. 428.) This is the law, whether such increase be attempted by raising the valuation of the property already listed, or by adding other property to the list and valuing that. The tax-payer here had no notice of this additional assessment, and it must be regarded as inoperative against him unless there be something in this case to take it out of this general rule. This proposition counsel for appellant . does not question; but he contends that “it was the duty of the town assessor to assess the tangible property of this corporation after' the appointment of a receiver, which the board of equalization would otherwise have assessed, and in exactly the same manner that such assessor would assess other personal property within his jurisdiction, ”—and by this proposition he concedes that his client “must stand or fall. ” Counsel for appellant concedes that in this case “the assessor did assess all the personal property in fact liable to assessment at the time he made the assessment upon the office furniture,” but he contends that “afterwards, by operation of law, other personal property not at such date within his jurisdiction, came within such jurisdiction,” and thus he was authorized by law to make the subsequent assessment. We can not sanction these views. By our statute the tangible personal property held or owned by this corporation on the 1st day of May, 1877, was required to be listed with the local assessor, to be valued and assessed by him. (See Rev. Stat. chap. 120, secs. 5, 6, 12, 24-29.) The real estate of the corporation situate in that town was also subject to assessment, as other real estate. The capital stock (embracing the intangible property) of such corporation was to be valued for taxation by the State Board of Equalization. (Sec. 3, clause 4.) To that end it was required that a sworn statement should be made to the local assessor of the amount of the capital stock of the company, to be returned by the local assessor to the county clerk, and to be by him transmitted to the Auditor, to be by him laid before the State board. (See chap. 120, secs. 32, 33.) And by section 6 the property of corporations whose assets, are in the hands of receivers is required to be listed by such receivers.

Counsel for appellant seems to assume that by virtue of this section 6 the jurisdiction of the local assessor is, in such cases, enlarged, and that he is thereby clothed with power, in all cases where the assets of a corporation are in the hands of a receiver, so that he is not only to value and assess the tangible property, but also the capital stock of the corporation, in the same manner that the State board should do in other cases. We do not think this statute should be so construed. It does not appear that it was intended by the statute that there should be one mode of assessment for corporations in the hands of receivers, and another for corporations not in such custody.. The design of the statute plainly is, that the persons in custody shall furnish the information necessary to a proper assessment. So if the officers have the custody of the assets, the officers must list the property, and if a receiver has the custody, he must list the property; and this is the law whether the listing relates to the tangible personal property or to the capital stock. The listing of the tangible personal property is for the local assessor to value and assess, and the listing of the capital stock with the local assessor is that it may be by him returned to the county clerk, to be by. him forwarded to the Auditor, to be laid •before 'the State board,' that the State board may value and assess the same. It follows that the act of the local assessor in entering the $81,000 assessment .was wholly without authority, and inoperative. ... ......

The judgment Of the circuit court is therefore affirmed.

Judgment affirmed.

Mr. Justice Walker : I hold the property was liable to assessment. It was assessed by the assessor legally authorized to make assessments, and although the assessment should have been made by the equalization board, and not by the town assessor, that was but an irregularity. The property being liable to assessment to bear its just burthens of taxation, it is not equitable that it should escape all taxation. I therefore dissent from this opinion.