text:
    William J. Davis v. John A. Hamlin.

      Filed at Ottawa November 20, 1883.

    1. Agency—tbtjst—duty of agent in regard to principal and his business. In the employment of an agent the principal bargains for the disinterested skill, diligence and zeal of the agent for his own exclusive benefit. There rests upon one becoming agent the duty of fidelity to his employer's interest, and of acting for the furtherance and advancement of the business in which he engages, and not in its injury.
    2. Where a confidential agent of one having a lease of a theatre, who, from his position, was well acquainted with the profits of his principal in the use of the building, and who knew, some months before the old lease expired, that the latter was desirous of renewing his lease, offered privately to lease the theatre of the owner, proposing to give a larger rental than was reserved in the old lease, and denied to his principal that he was competing with him for the lease, but in fact did procure a lease to be made to himself, it was held, that the benefit of such lease a court of equity would hold to inure to his principal, and that the agent would be held to hold the same as a trustee for his principal.
    3. Courts of equity recognize a reasonable expectation of a tenant of a renewal of his lease as an interest of value, and hold that the act of an agent in the management of the lessee’s business, in interfering with and disappointing such expectation by procuring the lease to himself, is inconsistent with the fidelity which the agent owes to the business of his principal, and a court of equity will give the principal the benefit of the new lease.
    4. In applying this rule the nature of the relation is to be regarded, and not the designation of the one holding the relation. It is applied not only to persons standing in a direct fiduciary relation toward others, such as trustees, executors, attorneys and agents, but also to those who occupy any position out of which a similar duty ought, in equity and good conscience, to arise.
    5. The knowledge which one acquires as trustee or confidential agentáis of itself a sufficient ground of disqualification, and of requiring that such knowledge shall not be allowed to be used for his own benefit to the injury of the trust, or in violation thereof.
    6. Where one person is placed in such relation to another, by the act or consent of that other, or the act of a third person, or of the law, so that he becomes interested for him or with him in any subject of property or business, he will in equity be prohibited from acquiring rights in that subject antagonistic to the person with whose interest he has been associated.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    This was a bill in equity, brought by John A. Hamlin, against William J. Davis, seeking to have the latter declared to be a trustee for the former of a certain lease of the Grand Opera House in Chicago, which Davis had obtained for himself from William Borden. Upon the hearing the circuit court decreed the relief prayed for. The decree was affirmed by the Appellate Court for the First District, and the defendant appealed to this court.
    The facts appearing from the evidence are, that Hamlin was the lessee and manager of the theatre known as the Grand Opera House, in the city of Chicago, and for some ten years had occupied the premises, first as owner, and then as lessee. After the Chicago fire, in 1871, he purchased the lots and built thereon the building, and has used it since that time as a place of amusement. He expended in its construction and improvement over $75,000. Mortgages had been given upon the lots, which were finally foreclosed, and he lost the title to the lots. Subsequently he became a lessee, and contracted with William Borden, who was then the owner of the premises, that the latter should fit up the house for a first-class opera house, and that he would pay him a rental, after it was finished, amounting to about $18,000 a year. The building being completed about the month of August, 1880, Hamlin entered into the possession, and opened it as a place for first-class entertainments. He had a lease which would expire April 23, 1883, and it was his intention to continue permanently in this building in the amusement business, and at the expiration of his lease to renew it. During the first year after opening his new opera hofise, about the first of September, 1880, he cleared, over and above all expenses, the sum of $7000, and the next year, from September, 4881, to September, 1882, $24,000. When he was about to open in September, 1880, he secured the services of William J. Davis, the defendant, as a general business manager. The evidence shows that the duties of a manager or assistant manager are to correspond with companies, operas, troupes, etc., for engagements of from one to four weeks, according to their acceptableness, and so arrange the engagements that' they will follow one another in future months without loss of time. In making these engagements it is necessary to show the exact expense of the house each night, including rent, and the custom of business is to make a settlement between the proprietor of the theatre and the manager of the attraction, and divide the money every night. Davis, about September, 1880, entered upon the discharge of his duties, and from that time until the making of the lease in question continued in the management of the theatre. Dor this service he received $50 per week as a fixed salary, and ten per cent of the profits.
    Eespecting the renewal of the lease there is but the uncontradicted testimony of Davis and Hamlin themselves. Davis testifies the first negotiation he had with Borden was about December 1, 1881. o He went to Borden for the purpose of purchasing the theatre, and offered $200,000 for it. Borden did not care to sell, and inquired what rent Davis would be willing to pay, and Davis said, ten per cent on Borden’s valuation of it, if it did not run above $225,000. Borden asked Davis if he would give that rent, and Davis said he would, if there was any use of his making an offer for it,—if the theatre was in the market. Borden said he was going to New York, and would see Davis on his return. Davis says he next saw Borden on the 19th of January, 18S2, when he called upon Borden in Chicago in response to a note from Borden to do so. Borden then inquired of Davis what he would give for the lease of the theatre. Davis told him. Borden did not accept the offer, but asked Davis to see him another day, and after further negotiation, Borden, on the 24th of January, 1882,» executed to Davis a lease of the theatre for the term of ten years, at the rental of $22,500 per year. Davis says he told Borden, at the interview on January 19, that Hamlin would pay him nearly double what Davis offered for the theatre, because Hamlin had told him (Davis) that he would pay $40,000 a year for the theatre, and sink $10,000 from his private income, before he would surrender it, but Borden said he thought Hamlin was “blowing.”
    Hamlin testifies that soon after the opening, in 1880, he made application to Borden for a lease to him and one Nunnemaeher for twenty years, which Borden declined, then, to give; that the next talk he had with Borden was in New York, between the middle of December, 188-1, and the middle of January, 1882, when he told Borden he would take a lease for any term of years, and would pay all that it was possible for any prudent business man to pay, and would pay as much rent as anybody. Borden said he would talk it over the next week in 'Chicago. Subsequently he had two interviews in Chicago with Borden on the subject. At the second one he offered $20,000 per year rent, but Borden declined to take it, saying he must see the other parties first; that there were two persons he had offers from; that they were managers, and Chicago men. Hamlin testifies that he went immediately to Davis, and inquired of him if he was attempting to secure a lease of the Grand Opera House, and Davis answered no,—that he was not. He said he then told Davis what he had just learned from Borden, and that he would pay double the value of the theatre rather than anybody else should have it. Davis said to him: “I would not give an extravagant price for it, if I were you; I would not give a dollar more than it is worth. ” The parties agree as to this interview and conversation, differing only as to its date, Davis testifying that it was on the 17th, and Hamlin that it was on the 23d of January, 1882.
    The evidence ivas that a theatre well managed has a good will, of value, attached to it; that there were only four first-class theatres in Chicago, including the Grand Opera House, and there was no probability that Hamlin could get another theatre without building a new one.
    Mr. Egbert Jamieson, and Mr. L. W. Perce, for the appellant :
    The relation of principal and agent did not exist between Hamlin and Davis in regard to the subject matter of renewing the lease. Fairman v. Bavin, 29 Ill. 75.
    The relation of master and servant, and that of trustee and cestui que trust, are not identical, nor doves the one necessarily involve the other. The relation of employer and employé is not a confidential one. Story’s Eq. Jur. sec. 1195; Cook v. Fountain, 3 Swanst. 591; Wharton on Agency, sec. 19; Bigelow on Fraud, 231; Paley on Agency, 12; Deep River Mining Co. v. Fox, 4 Ind. 61.
    The application of the principles governing the relation of trustee and cestui que trust is limited to dealings with the trust estate. In all matters not connected with the subject of the trust the parties are fully competent to deal with each other, with third parties or strangers. Knight v. Majoribanks, 2 Mac. & G. 10; Montesquiea v. Sandys, 18 Ves. 308; Crane v. Lord Allen, 2 Dow, 289; Ex parte James, 8 Ves. 352; Gal

      braith v. Elder, 8 Watts, 81; McDonald v. Fithian, 1 Gilm. 269; Kennedy v. Keating, 34 Mo. 25.
    In every ease reported in this State where parties have been declared trustees, the. rule contended for is exemplified. Every case connects- the trustee with the subject matter of the trust by directly and distinctly charging him with a duty in connection with such subject matter. Casey v. Casey, 14 Ill. 112; Pensonneau v. Blakely, id. 15; Wickliff v. Robinson, 18 id. 145 ; Hitchcock v. Watson, id. 289; Dennis v. McCagg, 32 id. 429; Morris v. Taylor, 49 id. 17; Kerfoot v. Hyman, 52 id. 512; Cotton v. Holliday, 59 id. 176; Mason v. Bauman, 62 id. 76; Ely v. Hanford, 65 id. 267; Hughes v. Washington, 72 id. 84; Tewksbury v. Spruance, 75 id. 187; Eldridge v. Walker, 80 id. 270; Francis v. Kerker, 85 id. 190.
    When the party is not connected in a trust capacity with the subject matter of the trust, he can not be held as a trustee. Fairman v. Bavin, 29 Ill. 75; Merryman v. David, 31 id. 404.
    A person-holding a.confidential position is not incapacitated thereby in regard to matters in respect to which he has no duty to perform. Edwards v. Meyrick, 2 Hare, 60.
    The so-called tenant right of renewal confers no positive interest, either vested or contingent. It is a mere naked possibility, depending solely on the caprice of the lessor. A right of renewal must be the result of express contract. Taylor on Landlord and Tenant, sec. 332, note 2.
    Mr. Leonard Swett, and Messrs. Qdigg & Tdthill, for the appellee:
    Any one who acts representatively, or whose office is to advise or operate, not for himself, but for others, is a trustee. 1 Lead. Cases in Equity, 238; Bigelow on Frauds, 190.
    Wherever there is a relation which puts one party in the power of the other, a fiduciary relation exists. Evans on Agency, 256; Kerr on Fraud and Mistake, 182, 183.

      In the employment of an agent the principal bargains for the disinterested skill, diligence and zeal of the agent for his own exclusive benefit, and whenever an agent is employed the principal is entitled to the intelligence, experience, care, skill and diligence of the agent, without any conflicting interests on his part prejudicial to the rights of such principal. Wait’s Actions and Defences, title, “Agency,” see. 12, p. 245; Hilliard on Vendors, 369; Story on Agency, secs. 210, 211.
    A person availing himself of a position of confidence to obtain an advantage, will not be permitted to retain it. Bispham’s Equity, sec. 232; 1 Story’s Eq. Jur. see. 333.
    A trustee must not put himself in a position which may have a tendency to injure the trust or interfere with his duties, and the knowledge which he acquired as trustee is of itself a sufficient ground of disqualification. Hamilton v. Wright, 1 Bell’s App. C. 591; Keech v. Sandford, 1 Lead. Cases in Eq. 48.
    Duty of agent to give his principal timely notice of every fact or thing that may make it necessary for him to take measures for his security: Derail v. Burbridge, 4 Watts & S. 305; Brown v. Arrot, 6 id. 416; Bartholomew v. Leach, 7 Watts, 172; Clark & Co. v. Bank of Wheeling, 17 Pa. St. 322.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

Under the facts in this case the only question arising is, whether Hamlin, by reason of Davis’ agency and confidential relation to him, is entitled to the benefit of the lease executed by Borden to Davis.

In the employment of an agent the principal bargains for the disinterested skill, diligence and zeal of the agent for his own exclusive benefit. Upon entering into the employ of Hamlin, there rested upon Davis the duty of fidelity to his employer’s interest, and of acting for the furtherance and advancement of the business in which he was engaged, and not in its injury. We view the whole conduct of Davis in regard to the lease in question as violative of the duty of the relation in which he stood toward Hamlin. His first offer to rent the premises from Borden, about December, 1881, was an act hostile to the interest of his employer. He offered Borden a rent which was nearly $5000 in excess of the rent which Hamlin was then paying. Borden knew that this was an offer made upon an exact knowledge of the profits of the business, which Davis, from his employment, had peculiar means of knowing, and the natural effect would be to cause Hamlin to pay an enhanced rent when he should come to ask for a renewal of his lease. Davis violated the duty of his relation in concealing from Hamlin that he was attempting to get the lease. Davis excuses 1ns denial to Hamlin of such attempt by saying that this was on January 17, and that it was true that at that time he was not making such an attempt, but had given it over, not up to that time having received any response from Borden to Davis’ offer to rent,- made on December 1, and that he was then, on January 17, making, or had made, preparations to go into another business. Taking this to be so, we find Davis only two days later, January 19, in the act of negotiation for the lease, and making an offer to Borden for the lease, which the latter took time to consider. Now, Davis knew that it was of vital importance to the interest of Hamlin that the latter should get a renewal of his lease; that Hamlin was most anxious to ascertain whether Davis—who alone, with Hamlin, had exact knowledge of the profits of the business—was in competition for the lease; and from Davis, only two days before, denying that he was competing for the lease, Davis knew, on January 19, that the belief was resting on Hamlin’s mind, from what Davis had told him two days before, that Davis was not a competitor for the lease. Under these circumstances Davis ought to have disabused the mind of Hamlin of the impression, which Davis had caused, that the latter was not attempting to get the lease, and have informed Hamlin of what the fact was, to give to the latter the opportunity to act accordingly, and Davis’ not doing so was a breach of good faith toward his employer.

The obtaining of the lease by Davis amounted to a virtual destruction of his employer’s whole business at the termination of the old lease, under which the latter was holding. By some ten years of labor Hamlin had built up a business of a very profitable character. There was a good will attached to it, which was valuable. Hamlin was intending to make it a lifetime business. Sustaining this lease to Davis, at the end of Hamlin’s lease, April 16, 1S83, all this business would come to an end, and pass, good will and all, from Hamlin, the employer, into the hands of Davis, the employe. And this would have been accomplished by the means of a renewal lease obtained by a confidential agent, in violation of the duty of his relation, and acquired, presumably, because of peculiar means of knowledge of the profitableness of the business, afforded him by the confidential position in which he was employed. A personal benefit thus obtained by an agent, equity will hold to inure for the benefit of the principal.

Public policy, we think, must condemn such a transaction J as that in question. To sanction it would hold out a temptation to the agent to speculate off from his principal to the latter’s detriment. Davis very well knew that his employer would be willing to pay a much higher rent than that at which S he obtained the lease, and that he could dispose of the lease to Hamlin at a large profit to himself, and sudwneans^of knowledge^was-derived from his position as agent. If a manager of a business were allowed to obtain such a lease for himself, there would be laid before him the inducement to produce in the mind of his principal an under-estimate of the value of the lease, and to that end, may be, to mismanage so as to reduce profits, in order that he might more easily acquire the lease for himself.

It is contended by appellant’s counsel that the rule we apply, which holds an agent to be a trustee for his principal, has no application to the case at bar, because Davis was not an agent to obtain a renewal of the lease, and was not charged with any duty in regard thereto; that his was but the specific employment to engage amusements for the theatre, and that he was an agent only within the scope of that employment; that Hamlin having a lease which would expire April 16, 1883, had no right’or interest in the property thereafter, and that Davis, in negotiating for the lease, did not deal with any property wherein Hamlin had any interest, and that such property was not the subject matter of any trust between them. Although there was here no right of renewal of the lease in the tenant, he had a reasonable expectation of its renewal, which courts of equity have recognized as an interest of value, secretly to interfere with which, and disappoint, by an agent in the management of the lessee’s business, we regard as inconsistent with the fidelity which the agent owes to the business of his principal. There was the good will of the business, which belonged to the business as a portion of it, and this the agent got for himself.

It is further argued that the relation here between Hamlin and Davis was that of master and servant, or employer and employe, and that the rule has never been applied to that relation as a class, and that the classes coming within that doctrine are embraced within the list of defined confidential relations, such as trustee and beneficiary, guardian and.ward, etc. The subject is not comprehended within any such narrowness of view as is presented on appellant’s part. In applying the rule, it is the nature of the relation which is to be regarded, and not thifTI§Signation of the one 'filling the relation. Of this principle Bispham says: “The rule under discussion applies not only to persons standing in a direct fiduciary relation towards others, such as trustees, executors, attorneys and agents, but also to those who occupy any position out of which a similar duty ought, in equity and good morals, to arise.” (Bispham’s Equity, sec. 93.) In Greenlaw v. King, 5 Jur. 19, Lord Chancellor Cottenham, speaking of this doctrine, says: “The rule was one of universal application, affecting all-persons who came within its principle, which was, that no party could be permitted to purchase an interest when he had a duty to perform which was inconsistent with the character of a purchaser.” “It is the duty of a trustee, ” said Lord Brougham, in Hamilton v. Wright, 9 Cl. & Fin. 111, “to do nothing for the impairing or destruction of the trust, nor to place himself in a position inconsistent wfith the interests of the trust. ” And on page 124: “Nor is it only on account of the conflict between his interests and his duty to the trust that such transactions are forbidden. The knowledge which he acquires as trustee is, of itself, sufficient ground of disqualification, and of requiring that such knowledge shall not be capable of being used for his own benefit to injure the trust.” Although this was said of a trustee, we think it may be equally said here with respect to Davis and the business which he was employed to manage. The rule we apply, as to its broadness in extent, is aptly expressed in the American note to Keech v. Sandford, 1 Lead. Cases in Eq. 53, as follows: “Wherever one person is placed in such relation to another, by the act or consent of that other, or the act of a third person, or of the law, that he becomes interested for him, or interested with him, in any subject of property or business, he is prohibited from acquiring rights in that subject antagonistic to the person with whose interests he has become associated. ”

The views which we have above expressed we believe to be in accordance with the well established principles of equitable jurisprudence. See Devall v. Burbridge, 4 Watts & S. 305; Hill v. Frazier, 22 Pa. St. 320; Fairman v. Bavin, 29 Ill. 75; Gilman, Clinton and Springfield R. R. Co. v. Kelly, 77 id. 426.; Bennett v. Vansyckle, 4 Duer, 462; Gillenwaters v. Miller, 49 Miss. 150; Grumley v. Webb, 44 Mo. 446.

The judgment of the Appellate Court must be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justioe Craig

license: Public Domain

text:
    James Gudgel, Admr. v. Michael Kitterman et al.

      Filed at Ottawa November 20, 1883.

      1. Fraudulent conveyance—when grantor retains ample means to pay all his liabilities. A person, in 18G8, sold and conveyed to his two younger sons some six hundred acres of land, in consideration that they should pay to their sisters $10,000, and to a brother $500, and support, maintain and take care of their parents during their lives, the grantor at the time retaining other land more than sufficient to pay the only debt he then was liable to pay. The grantor placed the deed for the lands conveyed in the hands of another son, to he held by him, and delivered on payment being made to the grantees’ sisters. After-wards, in 1878, this deed was taken up and destroyed, and separate deeds made to each of said former grantees for his part of the land, according to a division made of the same, and they gave their notes to their sisters for the balance due them, and a bond to their father, conditioned for his and his wife’s support, etc., and it appeared that the two sons (the grantees) took possession of the premises in 1868, and retained the same ever since, making valuable improvements thereon: Held, that the last deeds, made in 1878, in fulfillment of the agreement of 1868, were not fraudulent as against the debt on which the father was liable in 1868.
    ■ 2: Where a debtor retains ample and abundant means to discharge and satisfy all Ms liabilities, he may, on the sale of other property, direct that the purchase money he paid to whom he pleases; and when he directs it to be paid to his daughters, part of which is so paid and notes given them for the residue, the debtor will have no interest in such notes, or in the money represented by them, and they can not be reached by his creditors.
    3. Specific performance—when with relation baelc. Where two sons agree with their father, in consideration of the sale of land to them, to support Mm and his wife during their lives, and to pay certain sums of money to a brother and their sisters, at certain specified times, under which contract they go into possession of the lands, pay all taxes, and make'valuable improvements thereon, support their parents, and pay the money agreed to be paid as fast as required under the agreement, a court of equity will enforce the contract, even if a deed made and left as an escrow fails to pass the title; and where such contract is enforced by a conveyance, the deed will have relation back to the time when the contract was made.
    4. Parties—chancery—to set aside deed as fraudulent as to creditors. "Where a father conveys a tract of land to one son for such son and four other sons, to be divided between them after a survey of the premises is made, on a creditor’s bill against the grantee alone, the other sons having such interest not being parties, no decree subjecting such land to the payment of a judgment against the grantor can be rendered, for want of necessary parties to the bill.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Bureau county; the Hon. Francis Goodspeed, Judge, presiding.
    Messrs. Kendall & Lovejoy, and Mr. E. S. Leland, for the appellant:
    The deed of. 1868 never took effect for want of delivery. The conditions precedent to its delivery never had been performed, and it was void as against creditors. Stone v. Ducall, 77 Ill. 475; Furness v. Williams, Admr. 11 id. 229; Stanley v. Valentine, 79 id. 544; Skinner v. Baker, id. 496 ; Hoig et al. v. Adrian College, 83 id. 267.
    Delivery of a deed, to he effectual, must be with the. consent of the grantor. Wormley v. Wormley, 98 Ill. 544; Wiggins v. Lusk, 12 id. 132.

      tí

    A voluntary conveyance without consideration, intended as a donation of land, placed in the hands of a custodian, may be withdrawn by the grantor at any time before delivery, and if left for delivery upon certain conditions, the custodian is not the judge of whether the conditions have been performed, and he has no right to deliver the same until the donor is satisfied. Hoig et al. v. Adrian College, 83 Ill. 267.

      A debtor can not, as against his creditors, convey all his property to another to secure his future support and that of his wife. Such conveyance is fraudulent in law as to creditors, although it may be good as between the parties thereto. Annis v. Bonar, 86 Ill. 128; Stevens v. Dillman et al. 86 id. 233; Patterson v. McKinney, 97 id. 41; Tinison v. Chamblin, 88 id. 378; Moore v. Wood, 100 id. 451; Crawford v. Logan, 97 id. 396’.
    A voluntary conveyance to a wife or child, when the donor is in embarrassed circumstances, is fraudulent as to preexisting creditors, even though the party retains estate nominally in value equal, or more than equal, to all his indebtedness, when the event shows that the property retained is, in fact, not sufficient to discharge his liabilities. Patterson v. McKinney, 97 Ill. 41.
    Messrs. Farwell & Warren, for the- appellees:
    The deeds of 1878 are to he taken as relating back to the time of the making of the old deed in 1868, and treated as if then made. Patterson v. McKinney, 97 Ill. 41.
    The deeds were not voluntary, so the question is not one of a gift. The support of the parents and the unmarried daughters, and the payment of the money to Henry and the sisters, establish a case of sale with all,the elements of a valuable consideration. Mathews v. Jordan, 88 Ill. 602; Bright v. Bright, 41 id. 97; Spear v. Griffith, 86 id. 552; Jefferson v. Jefferson, 96 id. 551.
    Though the agreement of 1S68 had been by parol, without any deed, yet as defendants, John and George, had entered into possession under it, paid the $500 to Henry, paid to the girls large sums, supported the parents and unmarried daughters, and made valuable improvements, they could have compelled performance, and it was not in the power of Michael Kitterman to annul the agreement. Bright v. Bright, 41 Ill. 97; Kurtz v. Hibner, 55 id. 514; Wood v. Thornly, 58 id. 464; Langston v. Bates, 84 id. 524; Spear v. Griffith, 86 id. 552.
    If we were to treat the matter as a gift of the lands, still the conveyances must be upheld. A gift from a father to children is good against even existing creditors, if he retains sufficient wherewith to pay his debts. Moritz v. Hoffman, 35 Ill. 553; Emerson v. Bemis, 69 id. 537; Mathews v. Jordan, 88 id. 602; Patterson v. McKinney, 97 id. 41.
    In order to impeach such conveyance it devolves upon the party attacking it to show that the father was at the time in failing circumstances, embarrassed or insolvent, or that it was made with the fraudulent intent to defeat existing creditors, or with a view of contracting future debts. See authorities last cited.
    The delivery of the deed to Robert was sufficient to pass the title and place the same beyond the grantor's control. The gift to the girls, if one, was executed, and could not be recalled.
   Mr. Justioe Craig

delivered the opinion of the Court:

This was a bill in equity, brought by appellant, to set aside two certain deeds, one made by Michael Kitterman to John Kitterman, and the other made by Michael Kitterman to George Kitterman, conveying certain lands in Bureau county, and to subject the lands to the payment of a judgment. Appellant obtained judgment in the circuit court of Bureau county against Chauncey A. Dean and Michael Kitterman, on the 13th day of September, 18S0, for the sum of $1688.49. It is alleged in the bill that the deeds were void as against appellant, who was a creditor of Michael Kitterman at the time they were executed.'

It appears from the evidence that the note upon which the judgment was rendered was executed on the 14th day of June, 1866, signed by Chauncey A. Dean and Michael Kitterman ; that Dean was the principal debtor, and Kitterman was surety. Kitterman was a farmer, and had been many years a resident of Bureau county, and was, at the time his evidence was taken, eighty-two years old. He had ten children—-six sons and four daughters. As his older sons became of age he gave them land, and they commenced business for themselves. When George and John became of age, Kitterman owned some seven or eight hundred acres of land. In 1868 he made an arrangement with these two sons, George and John, under which he conveyed to them, jointly, some six hundred acres of land, including his home place, and they agreed to support him and his wife during their natural lives, and pay his four daughters $10,000, and pay Henry, a brother, $500. This deed was never recorded, but it was delivered to Robert Kitterman, to be held by him until the money ivas paid to the daughters, as was specified in the agreement. The two sons, John and George, took possession of the lands embraced in the deed, and made valuable improvements thereon, and from time to time made payments to the daughters. They worked the lands together until 1876, when they disagreed, and two other brothers were called on to divide the lands between them, after which the lands were occupied by each as divided, the old deed remaining in the hands of Robert, as before. Thus matters stood until March 19, 1878, when the old deed was destroyed, and Kitterman and his wife conveyed to George and John the lands which they had occupied under the old deed, and they gave a bond binding themselves for the support of their father and mother, and also executed notes payable to the daughters for the balance of the $10,000, which had not before that time been paid. The bill in this case was filed to set aside the deeds last named.

The execution of the deed made by Michael Kitterman and wife to John and George Kitterman, in 1868, was proven by each witness who testified in the case. That deed, as is well established by the evidence, was delivered to Robert Kitterman, and he testified that his father gave him the deed, “and told me he wanted I should keep the deed until the boys paid the girls so much money.” Indeed, there seems to be no substantial dispute on this point, and it may be regarded as settled by the evidence that the deed was delivered to Robert Kitterman, to be held by him until such time as the grantees therein paid to their sisters $10,000, in time and manner as agreed upon between them and the grantor. At the time this deed was made, Michael Kitterman was not insolvent. Indeed, it does not appear that he was indebted to any person except complainant on the note he had signed with Dean, and he retained a farm of one hundred and sixty acres of land, near Providence, which he sold, in 1869, for $6000, so that the property retained when the deed was made to his sons, in 186S, was ample to pay all liabilities. If, then, the contract entered into in 1868, between Michael Kitterman and his two sons, was sufficient to transfer the property from him to them, the transaction can not be impeached by this proceeding.

It is, however, insisted by complainant that the deed made in 1868, by Michael Kitterman, to his sons John and George, never took effect as a conveyance; that it was an escrow in the keeping of Robert Kitterman, until destroyed by the direction of the grantor, in 1878, when the new deeds were made. It may be true that where a deed is delivered to a third party, to be held by him in escroto until the grantee shall perform certain conditions agreed upon between the grantor and grantee, the strict legal title does not, under such a transaction, pass to the grantee named in the deed until the conditions have been performed; but that rule of law does not, in our opinion, impair the validity of this transaction. Here, the grantees named in the deed agreed to support Michael Kitterman and his wife during their life, and agreed to pay certain sums of money to a brother and their sisters, at certain specified times, in consideration of which they were to have these lands. Under this contract they went into the possession of the lands. They have paid all taxes, made valuable improvements, supported the grantors, and paid the money agreed to be paid, as fast as the -same was required to be paid under the contract. Now, if it be true the deed did not strictly pass the legal title, yet this was such a contract as might be enforced in a court of equity, and when enforced by a decree requiring a conveyance, the deed would have relation back to the time the contract was made between the parties. Patterson v. McKinney, 97 Ill. 45, in principle sustains this view. The fact that the deed made in 1868 was taken up and destroyed in 1878, and a separate de(ed made to each of the sons, does not, in equity, affect the rights of the sons. The deeds made in 1878 were but a fulfillment of the contract made in 1868 between Michael Kitterman and his sons, under'which they went into possession of the lands in 1868, and performed their contract as purchasers, and the deeds of 1878 must have relation back to the date of the original contract; and as Kitterman then retained abundance of property to pay his debts, the transaction can not be regarded as fraudulent.

It appears from the testimony that a tract of land, consisting of seventy acres off the north end of the west half of the south-east quarter of section 6, town 15 north, range 9 east, was not included in the deed made in. 1868, but it was embraced in the deed made to George Kitterman in 1878, and as Michael Kitterman retained no property to pay his debts after the making of this deed, it is contended-that this land is liable to be subjected to the payment of the judgment. There is but little testimony in the record in regard to this tract of land. The controversy in the circuit court seems to have been chiefly over the other lands. The answer sets up that this tract had been sold by Michael Kitterman to his sons, Robert, Henry, Christopher and William Kitterman, before the deed was made to George, and that they were in the possession thereof, and the deed was made to George so that he could convey to each his respective portion of the land when they should agree upon a division. The only evidence in the record bearing upon this tract that we find, is that of John Kitterman, who says: “The last deed to George includes land not in the first deed, because the boys had had such land for years, but separate deeds were never made, for the reason it was not surveyed. It was to be surveyed, and George was to make separate deeds to each of the boys.” Whether this tract of land was disposed of to Robert, Henry, Christopher and William at such a time and under such circumstances as would render the transaction fraudulent as against complainant, is a question which can not be determined here. The record discloses that Robert, Henry, Christopher and William had an interest 'in the land, and as they were not parties to the bill the court could not properly render a decree subjecting the land to the payment of the judgment.

It is finally urged, that complainant is entitled to a decree against John and George Kitterman for so much of the money represented in the notes given by them to their, sisters as will satisfy his judgment, because the money represented by the notes is an intended gift, and not good as against the rights of complainant. The bill was not framed with a view to reach assets of this character; but if it was, under the facts of this case it could not be maintained. When Michael Kitterman, in 1868, sold these lands to his two sons, he had a right, as he then retained ample property to pay his debts, to direct the consideration which they were to pay for the lands to be paid to any person or persons he might see fit. He decided that $ 10,000 should be paid to his daughters, and the two sons subsequently paid to them a portion of the amount, and gave their promissory notes, payable to the respective daughters, for the balance. After these notes were given, payable to the daughters, and placed in their hands, or in the hands of a third party subject to their order, we do not think Michael Kitterman had any interest in the notes or the money represented by them, and they were in no manner stibject to his control, or liable to be reached by complainant, who was his creditor. On the other hand, the notes became the absolute property of the daughters of Michael Kitterman, to whom they were payable.

After a careful consideration of all the facts presented - by the record we perceive no error in the decree, of the circuit court, and the judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Walker

text:
    James E. Tyler et al. v. Massachusetts Mutual Life Insurance Company et al.

      Filed at Ottawa November 20, 1883.

    1. Trust deed—notice of sale under several trust deeds, one notice sufficient. Where a party gave three deeds of trust, each on a different tract of land, to secure three notes, and the trustee, on default, advertises that he -will sell under each trust deed the land described therein, in one notice, the notice will be good, and the sales made separately will not be set aside for want of separate notices.
    2. Same—form of trustee’s deed when grantor has parted with his equity of redemption. Where a party, after executing a trust deed to secure the payment of money, conveys his equity of redemption, and the trustee sells the premises, it is not essential that the deed made by the trustee shall purport to convey the interest of the assigns of the grantor. A recital that the trustee conveys “all the estate, right, title, interest, property, claim and demand whatsoever, both in law and in equity, of the said A B,” the grantor, is sufficient to pass all the title and cut off the equity of redemption.
    3. Same—sale under, not set aside for uswry. If the maker of a deed of trust, and his subsequent incumbrancer, permit a sale of the premises to be made by the trustee for the principal, and usury included, they will be estopped from afterward insisting on usury to defeat the sale. By permitting the sale they will be regarded as assenting to it and the payment of the usury.

      Appeal from the Circuit Court of Cook county; the Hon. T. A. Moran, Judge, presiding.
    Messrs. Bisbee, Ahrens & Decker, for the appellants:
    The sale and trustee’s deed made under the Bappleye trust deed are void, because the notice of such sale and the sale thereunder were irregular, informal and insufficient. Marsh v. Norton, 75 Ill. 621.
    The trustee’s deed conveys only the interest of Guyton and wife and the trustee—not the interest, of Guyton’s assigns.
    The alleged default in the payment of interest, upon the ground of which the power of sale was invoked, did not exist because there was no interest due, and therefore the sale is void.
    The requirement that the borrower should take a life insurance policy in connection with the loan, and as a condition upon which the loan was granted, the highest rate of interest allowed by law having already been reserved in the notes, made the loan usurious, and prohibited the company from collecting any interest whatever. Missouri Valley Life Ins. Co. v. Kittle, 2 Fed. Rep. 113; Same case, 1 McCrary, 234; National Life Ins. Co. v. Harvey, 7 Fed. Rep. 805.
    Bequiring the borrower to pay agents’ commissions constitutes usury. Payne v. Newcomb, 100 Ill. 611.
    If the trustee makes a sale when nothing is due, the sale is voidable as to a purchaser with notice. Chicago, Rock Island and Pacific R. R. Co. v. Kennedy, 70 Ill. 350; Walker v. Garleton, 97 id. 532.
    If the mortgagor himself, or through his agent, buys the property, his title may be impeached for usury in the mortgage. 1 Jones on Mortgages, (3d ed.) sec. 646.
    The trustee’s sale being void, or at least voidable, on account of the usury, appellants can insist upon the usury as a ground to set aside the sale and trustee’s deed, the same as Guyton could have done. Maher v. Lanfrom, 86 Ill. 513.

      Messrs. G. & W. Garnett, for the appellees:
    Irregularities in a sale are waived unless steps are taken in a reasonable time to set the sale aside. Bush v. Sherman, 80 Ill. 160; McHany v. Schenk, 88 id. 365.
    One notice was all that was necessary. If it contained all the facts necessary to inform the public of the time, place and terms of sale, the description of the property, and what it is to be sold for, nothing more can be desired. Marsh v. Norton, 75 Ill. 623, does not decide that a consolidation of the notices would avoid the sale. At most, the consolidation was but an irregularity.
    The trustee’s deed was sufficient to pass the title. It refers to the notice, which is, that the trustee will sell all the interest, etc., of Guyton and his wife, and their assigns.
    To constitute usury both parties must have intended the reservation or payment of more than the -legal interest. Tyler on Usury, 103; Condit v. Baldwin, 21 N. Y. 219; Lloyd v. Scott, 4 Pet. 205; Bank of United States v. Waggoner, 9 id. 399.
    The life insurance premium was not usury, as Guyton received full value for it, the company being solvent and the charge reasonable. New York Fire Ins. Co. v. Donaldson, 3 Edw. Ch. 199; Utica Ins. Co. v. Caldwell, 3 Wend. 296; Tyler on Usury, 225.
    If there was usury in the transaction, no advantage can be taken of it after a sale under the trust deed and discharge of the whole debt. Perkins v. Conant, 29 Ill. 184; Carter v. Moses, 39 id. 539.
   Mr. Justice Walker

delivered the opinion of the Court:

It appears that one B. E. Guyton and wife executed three deeds of trust, each on different tracts of land, to secure three several notes, for different amounts, aggregating the sum of $27,500, bearing interest at the rate of ten per cent. The notes and deeds of trust all bear date the 1st day of July, 1875, and payable on the 1st day of July, 18S0, to the order of the Massachusetts Life Insurance Company. The interest was payable semi-annually, and for the payment of which the maker executed interest notes or coupons. The property was conveyed to N. B. Bappleye, and contained the usual power of sale on default in payment. Bach note contained a provision that on default in payment of any installment of interest, the holder of the notes might declare the principal note due, and require the trustee to sell the property, and satisfy the principal and interest of the note. Bach deed of trust contained the same provision. Afterwards, Guyton and wife executed three other promissory notes,— two for $1000 each, and one for $3200,—and executed three other trust deeds on the same property, to secure the payment of this indebtedness. These latter notes and deeds of trust bear date the 27th of July, 1875. The deeds were to William B. Warren, and contained the usual powers of sale. The notes, at their delivery, were payable to George S. Brown, and are now held by appellant Tyler. The last named trust deeds, although not in terms made so, are in fact junior liens to the Bappleye trust deeds, being junior in date. Default having been made in payment of some of the interest coupons attached to each of the first three notes, the holder-required Bappleye to exercise the powers conferred on him, by selling the property and paying the notes,—principal and interest. He, after advertising the property, on the 30th day of January, 1878, sold the property to A. J. Smith, who purchased for the insurance company, and he still holds the lots. Tyler, the holder of the second series of notes, and Warren, the trustee, filed their bill in the Cook circuit court to redeem, alleging that there were such irregularities in the sale ma^de by Bappleye that it did not bar a redemption. They ask that the sale be set aside, and they be let in to redeem from i the .first three trust deeds; On a hearing in the circuit court the bill was dismissed, and complainants bring the record to this court by appeal, and urge a reversal.

It is first insisted that the sale was voidable because the trustee advertised that he would sell under each trust deed the land described therein, in one notice. It is claimed that he should have given three separate notices,—one under each trust deed. We are unable to perceive any objection to the notice. It recited each trust deed, the lands each contained, and gave notice that hé would sell the land described in each for the payment of the debt" secured by the trust deed. The sales were separate under each, of the land it described. This was precisely as though there had been three separate notices of the sale. There is no pretense that any of the lots were sold under or by virtue of the power contained in a trust deed that did not embrace such land. Bach tract was sold under the powers of the deed in which it was embraced. Nor does it.appear that any one was misled, or that any loss was incurred by having published but the one notice. We clearly have no power to set aside a sale when the power has been pursued, and certainly not when no injury is shown to have resulted. The deeds required notice of the sale to be given before the sale, and a notice was given containing all that was required. Appellants’ counsel have not endeavored to point out any injury that has been sustained by their clients by reason of the notice as it was published.

There is some criticism of the trustee’s deed. It is claimed that it is defective because it does not purport, in terms, to convey the interest of the assigns of Guyton. We regard this as wholly non-essential. The deed recites that the trustee conveyed “all the estate, right, title, interest, property, claim and demand whatsoever, both in law and equity, of the said Benjamin E. Guyton and Lizzie E. Guyton.” This was sufficient to pass all the title and cut off the equity of redemption. But if it were not, the notice stated he would sell the interest of the grantors, their heirs and assigns, and he states in the deed he sold the property in pursuance of the notice, and if he did, then that, in equity, was sufficient. If the words which were omitted were essential, a court of equity would decree a reformation of the deed, and inasmuch as this is a proceeding in equity, the deed will be treated' as thus reformed.

It is urged that the transaction was tainted with usury, and that being the ease, the company had forfeited all interest on the notes, and there was no interest due, and there being none due, there was no failure or default in the payment of interest, and therefore there was no power to declare the principal due or to make the sale; that the sale -was made without power, and may be avoided. Concede there was usury in the loan, (and the proofs seem to establish there was,) still, does it follow that the sale may be set aside and vacated? In the case of Perkins v. Conant, 29 Ill. 184, the mortgagor sued to recover usurious interest collected by the mortgagee, by a sale of the mortgaged premises under a power of sale. It was there held, that inasmuch as the mortgagor permitted the sale for the usurious interest, he was estopped from recovering it back. In the case of Carter v. Moses, 39 Ill. 539, there were notes given that embraced usury. The payer, to secure their payment, turned over to the payee, notes, checks, etc., as collateral security. The payee collected and applied the collaterals to the payment of the usurious notes. The debtor filed a bill to enjoin the trustee from selling land to pay other notes in which there was no usufy, and to have the money collected and applied to pa.y usury credited on the notes still remaining unpaid. It was, however, held, that complainant having voluntarily paid the usury, he could not have it set off against the other notes. These cases are decisive of the case at bar. Had complainants desired to prevent the collection of usury in this case, they should have filed their bill to restrain the collection of usury, and prevent the sale of the land by the trustee for more than was clue, after all proper deductions from the amount on account of the usury. By permitting the sale to be made 'for principal and the usury, the debtor and the subsequent incumbrancer are precluded from now insisting on usury to defeat the sale. By permitting the sale they must be regarded as having assented to it and the payment of the usury.

We perceive no error in the decree below, and it is affirmed.

Decree affirmed.


author: Mr. CmEE Justice Sheldon

text:
    The Fort Clark Horse Railway Company v. James F. Anderson.

      Filed at Ottawa November 20, 1883.

    1. Injunction—when a threatened trespass will be enjoined. It is the general rule that before a court of equity will lend its aid to enjoin a mere trespass, facts and circumstances must be alleged in the bill from which it may be seen that irreparable mischief will be the result of the act complained of, and that the law can afford no adequate remedy.
    2. The temporary interruption of the business of a city horse railway company, for only three or four days, by moving a large house along the street lengthwise with the company’s track, even granting that the company has the exclusive right of way in the street for its cars, is not a case of irreparable damage, or such an injury but that an adequate remedy exists at law. And the further fact that the defendant proposes to move other houses over the same and other streets, when employed to do so, in view of the fact that such removals are of rare occurrence, and not likely to occur on the same street again for many years, and because it would be but a temporary interruption of the company’s franchise, was held not to furnish sufficient equitable ground for decreeing a perpetual injunction.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Peoria county; the Hon. David McCulloch, Judge, presiding.

      Mr. H. W. Wells, for the appellant:
    The courts of New York hold that a street railway company having the right to lay down a track and operate cars, has an exclusive right of way; that it is not liable to the ordinary law of the road, and that the driver of a wagon or other vehicle can not call upon the driver of a street car to stop or turn out, or do any other act to avoid a collision, if it can be avoided by himself. Baker v. H. R. R. Co. 4 Daly, 274; Adolph v. Park Ry. Co. 76 N. Y. 530. So in New Jersey,—Citizens’ Coach Co. v. Camden Horse Ry. Co. 33 N. J. 267.
    Injunction is the -proper remedy to protect a party in the exercise of an exclusive privilege granted him by the statute. High on Injunctions, see. 570; Green v. Oakes, 17 Ill. 249; Piscataqua Bridge Co. v. N. H. Bridge, 7 N. H. 35; Enfield Bridge Co. v. H. and N. H. R. R. Co. 17 Conn. 40; Morrison v. King, 62 Ill. 30; C., La F. and C. R. R. Co. v. D. and V. Ry. Co. 75 id. 113; Craig v. People, 47 id. 487; Lucas v. McBlair, 12 Gill & J. 13; Livingston v. Van Ingen, 9 Johns. 507; Croton Co. v. Ryder, 1 Johns. Ch. 611; Boston and Lowell R. R. Co. v. Salem and Lowell R. R. Co. 2 Gray, 1.
    Injunction is a proper remedy to stay an act causing irreparable injury, or to prevent a multiplicity of suits. Livingston v. Livingston, 6 Johns. Ch. 497; Hicks v. Silliman, 93 Ill. 274; Jenny v. Jackson, 6 Bradw. 32.
    Where one claims the legal right to do that which will work an injury, an injunction, ar^d not a sword, is the proper remedy. Goodnough v. Sheppard, 28 Ill. 81; Brush v. Fowler, 36 id. 63; Daily v. Dixon, 4 Bradw. 187.
    Mr. Isaac C. Edwards, for the appellee:
    The court will not interfere to prevent a nuisance, until the matter has been tried at law. Dunning v. City of Aurora et al. 40 Ill. 481; Clark et al. v. Donaldson et al. 104 id. 639; Town of Lake View v. Litz et al. 44 id. 81.

      If a party has a full and adequate remedy at law, he must pursue that, and not resort to equity., Goodell et al. v. Larson, 69 Ill. 145.
    A temporary inconvenience is not the cause of irreparable injury. Goodell et al. v. Larson, 69 Ill. 145.
    Before a court of equity will lend its aid to enjoin a mere trespass, facts and circumstances must be alleged in the bill from which it may be seen that irreparable mischief will be the result of the act, and that the law can afford no adequate remedy. Livingston v. Livingston, 6 Johns. Ch. 497.
    Appellee claims the right to use the street jointly with appellant for lawful purposes. If he has no right on Jefferson street with the building, but goes on said street, then the injury threatened will be but a mere trespass, (if anything,) to be consummated by a single act, and susceptible, in legal contemplation, of complete reparation, and punishable, besides, by pecuniary damages to be awarded in a court of law, and that being true, equity will not interfere. High on Injunctions, secs. 462, 468; Hamilton v. Steward, 59 Ill. 330; Herrington v. Herrington, 11 Bradw. 121.
    If there is a complete remedy at law, an injunction will not lie. Adams’ Equity, 210; Dickey et al. v. Reed et al. 78 Ill. 261; Baxter v. Board of Trade, 83 id. 146.
    An injunction is a preventive remedy, and can not be used directly or' indirectly for the purpose of giving affirmative relief, as is sought to be done in this case. Baxter v. Board of Trade, 83 Ill. 146.
   Mr. CmEE Justice Sheldon

delivered the opinion of the Court:

This was a bill for an injunction, filed by the Fort Clark Horse Railway Company, to restrain the defendant from interfering with and stopping the cars running upon complainant’s horse railway. The bill alleges that complainant was the owner of and operating a street railroad over and along certain streets in the city of Peoria, always running as many as eight cars, and often as many as twenty; that cars passed all points on -the road as often as every five minutes, and sometimes as often as one every minute, from early morning until eleven o’clock at night; that defendant, a house-mover, has a house on rollers near complainant’s track, and threatens to move it on and lengthwise of the track four blocks in the center of the city, from Franklin to Hamilton street, which would greatly hinder, delay and stop complainant’s cars for three or four days, and delay the public, and greatly inconvenience and damage many thousand people; that although this particular interruption would only last three or four days, and the damage therefrom might not exceed $500 or $600, yet defendant threatens he will, and complainant believes he will, frequently, and at will, so move houses on complainant’s track, and so stop complainant’s cars, and obstruct the public travel and complainant’s use of its railroad, which will impair the value of complainant’s franchise to an amount which can not be estimated, and occasion great and irreparable injury. The bill prays that the defendant may be enjoined from moving the building lengthwise of complainant’s track on the street mentioned, and for a perpetual injunction to prevent defendant from ever moving any building lengthwise of complainant’s track between the hours of six o’clock A. M. and eleven o’clock P. M. The answer, except as to the damage claimed, admitted, generally, the allegations of the bill. The circuit court, on final hearing, dismissed the bill. On appeal to the Appellate Court for the Second District that court affirmed the decree, and the complainant appealed to this court. The appellant offered no evidence to sustain its bill, but relied'upon the admissions contained in appellee’s answer, except that a map of the city of Peoria, "with the railroad and the place where the obstruction was threatened, was introduced.

Granting that appellant has the exclusive right of way in the street for its cars, as against the appellee moving a house along the street, the question arises whether the threatened injury is one of such a character that a court of equity will interfere by injunction'to prevent it. The answer sets up in defence that there would be a perfect remedy at law for the injury, if wrongful. The general rule certainly is, that before, a court of equity will lend its aid to enjoin a mere trespass, facts and circumstances must be alleged in the bill from which it may be seen that irreparable mischief will be the result of the act complained of, and that the law can afford no adequate remedy. (Livingston v. Livingston, 6 Johns. Ch. 497.) The bill itself admits that the interruption of appellant’s busiüess, from the particular act now threatened, would be but temporary,—for only three or four days,—not causing appellant more than $500 or $600 damage. The answer in this respect is, that the act would be only a temporary inconvenience, and would damage appellant only in dollars and cents. It admits the building to be a very large one,—some fifty-four feet long by forty wide. This clearly does not make a case of irreparable damage, or one where there would not be an adequate remedy at law.

But the bill sets up further, that the defendant claims the right, at all times, to. so obstruct and stop the public travel on appellant’s railroad, and appellant fears he will often attempt to do so, and that if he should carry out his threats in that regard he would cause appellant great and irreparable loss and damage, and would impair the value of appellant’s franchise to an amount which can not be estimated. The answer shows this claim of right to be to use any streets over which appellant’s railroad passes, in moving houses, when it should be necessary in the carrying on of appellee’s business of house-moving, and that he would in no way injure the easement, or franchise, or property of appellant in so doing. The moving a house on a street is known to be of rare occurrence. It may never again happen with appellee to have occasion to use the street in question in this same way. The probability, under this claim of right, of future repetitions of the threatened act, is too slight, in our opinion, to lay a ground for equitable interference on this score, or for the prevention of a multiplicity of suits.

• It is contended that there is here, in the act threatened, the case of a violation of a franchise or special privilege to operate the street railroad, and that an injunction is the proper remedy for protecting the owner of such a franchise in the exercise of the exclusive privilege granted him. Appellant insists that appellee claims the right to interfere with and destroy its franchise, and that there is danger thereof; but appellee does not assert such a claim, and there is no reason to fear the destruction or any serious impairment of appellant’s special privilege. Appellee claims but the right to move a house on the street when it may be necessary to do so in the exercise of his business. This would be but a temporary interruption of the exercise of appellant’s right,— a trespass, if wrongful,—for which 'there would be a remedy by an action at law for damages. Where there is the kind of, and no more of the interruption of, the enjoyment of a franchise or special privilege than is shown by this record, and no more probability of a continuing interruption, we think a court of equity may well decline to interfere, and leave the party to the remedy at law.

The decree of the Appellate Court will be affirmed.

Decree affirmed.


author: Mr. Justice Scholeield

text:
    Henry Potwin v. William T. Johnson, Collector.

      Filed at Ottawa November 20, 1883.

      1. Judicial notice—of incorporation of city under general law. Where a city in this State is incorporated under the act in relation to cities, villages and towns, (chap. 24, sec. 3,) this court will take judicial notice of that fact.
    2. Special assessments—in cities, etc., under the general Incorporation act, governed by that act. Special assessments in cities, towns and villages organized under the general Incorporation act, in respect to the mode of giving notice, or making demand of payment thereof, and the time at which judgment must be applied for, are governed by the provisions in such Incorporation act relating thereto; and the provisions in the Revenue act, in so far as they differ from the same, have no relation to such cases. The provisions in the two statutes being inconsistent with each other, can not be construed in pari materia, but each applies to the class-of special assessments to which it relates.
    3. Either two distinct classes of municipalities are provided for, and the provisions of the general Incorporation law are applicable to the one class, and those in the Revenue act relating to special assessments to the other class, or the provisions in the general Incorporation act, being the last expression of the legislative will, must be held a repeal of those in the other act to the extent of their repugnance.
    4. Same—city council may fix term of court to apply for judgment. The city council of a city organized under the general Incorporation law has the power to apx>oint the term of the court at which axiplication for judgment shall be made against property for delinquent sxiecial assessments, which term may be a different one from that at which ap>X)lication is required to be made for judgment for State and county taxes.
    5. Constitutional law—whether statute embraces more than one subject expressed in title. The general act in relation to cities and villages is not roxiugnant to the constitutional objection as embracing more than one subject as expressed in the title. The pqwer of ox>ening, improving and repairing streets is strictly germane and incidental to the general object of municipal incorporation.
    6. Same—what fills the purpose of prohibition as to bill having more than one subject. The general purpose of section 13, article 4, of the constitution, that no act “shall embrace more than one subject,” to “be expressed in the title,” is acconrplished when the .title is eomxirehensive enough to reasonably include as falling within that general subject, and as subordinate branches thereof, the several objects which the statute assumes to effect.
    7. Same—whether act is a local or special one. The act in relation to cities and villages is a general law, and not local or special, although there may be municipal corporations to which it is not applicable, namely, those in existence under special charters at the time of the adoption of the constitution, which have not since sought to have their charters changed or amended.
    Writ op Error to the County Court of Cook county; the Hon. Mason B. Loomis, Judge, presiding.
    Mr. Edward Boby, for the plaintiff in error:
    Suit can not be maintained for a tax or assessment until it has been demanded. Blackwell on Tax Titles, 171; Thompson v. Gardner, 10 Johns. 404; St. Anthony v. Greely, 11 Minn. 321.
    Statutory provisions for demand and collection by sale of land, in the Bevised' Statutes, are, chap. 24, secs. 149-154, 158, and chap. 120, secs. 177—180, 182, 185, 188, 190, 191. Chapter 24 and chapter 120 having been passed at the same session, and taken effect together on July 1, 1872, as to the subject of levy and collection of taxes and special assessments, are in pari materia, forming a system.
    No time is fixed which must elapse after giving notice to pay the assessment before taking subsequent proceedings. A man must have some time in which to pay after such notice, without cost or penalty. He is entitled to the whole of the next day after service. Ireland v. Kipp, 11 Johns. 231; Smedes v. Utica Bank, 20 id. 372; Eddy v. Jump, 6 Duer, 492; West River Bank v. Taylor, 34 N. Y. 128; Bowling v. Harrison, 6 How. 257.
    The collector had no power to apply for judgment for said assessments, or either of them, prior to the May term, 1883. Section 182 of the Bevenue law provides that any time after the first day of April next after such delinquent taxes and special assessments shall become clue, the collector shall publish a notice of application for judgment, etc. This notice must be published at least three weeks before the term of the county court. Sec. 185, chap. 120.
    The clauses of the City Incorporation act, (chap. 24, Rev. Stat.) which purport to make a special law for the cases of particular cities, excepting them out of the general law regulating the practice and jurisdiction of courts of record, are void, as being special legislation.
    The general law contained in section 185, chap. 120, Rev. Stat., is applicable to all cases, from which it appears that the passage of the subsequent act is in violation of article 4, section 22, of the constitution. It also is in contravention to section 13 of the same article of the constitution, “that no act shall embrace more than one subject, and that shall be expressed in its title.”
    Mr. Francis Adams, for the defendant in error:
    On July 26, 1882, plaintiff in error moved the court to set aside the judgment in each of the four cases, which motion the court overruled. A motion to set aside a judgment by default is addressed to the discretion of the court, and its denial can not be assigned for error. Thielman v. Berg, 73 Ill. 293; Union Hide and Leather Co. v. Woodley, 75 id. 435.
    The sections of the Eevenue law relied on-by plaintiff in error in support of his motion, have no application to cities incorporated under the general municipal Incorporation law. People ex rel. v. Pierce et.al. 90 Ill. 85; Leiredecker v. People, 98 id. 21.
    The objection to the notices sent by the county collector is not well taken. Section 179 of the Eevenue law has no application to assessments in cities incorporated under the ° general law. The latter law provides both for notice by publication and a personal demand. Rev. Stat. chap. 24, secs. 151, 152.

      The application at the July term was legal, and the warrants were issued in time for that term. Beers v. People, 83 Ill. 488.
   Mr. Justice Scholeield

delivered the opinion of the Court:

This writ of error brings before us for review the record of a judgment of the county court of Cook county for the sale of real estate to pay certain delinquent sjDecial assessments. Notice was published that application for the judgment would be made at the July term, 1882, of that court, and the court at that term, by an order then entered of record, gave property owners interested, until the 12th day of the month to file objections, and on the 19th day of the month, no objections having been filed, judgment was rendered against the real estate, as sought by the collector. On the 26th day of the month plaintiff in error moved the court to set aside the judgment, but this motion was overruled.

Numerous objections are urged by the attorney for plaintiff in error, in the printed argument before us, against the jurisdiction of the court to render this judgment. We have endeavored to give them such consideration as their importance deserves, and having done so we are of opinion they are all untenable.

It is contended, first, that the only demand made for the payment of the special assessments, or notice thereof sent to the land owners, was by a postal card sent through the mail, and “the advertisement, the process by which suit was begun, was published twenty-two days before the assessments were demanded, and was, therefore, void; ” and second, that “the postal card, demand and notices were void, because costs were improperly included in the demand. ” It is also further contended, that “the collector had no power to apply for judgment for said assessments, or either of them, prior to the May term, 1S83, of the court.” These contentions, as we understand counsel, are based upon the hypothesis that the general Revenue act, (chap. 120, Rev. Stat. 1874,) controls in such cases as to the notice and demand to be given or made, and also as to the term at which judgment must be applied for. We must take judicial notice of the fact that the city of Chicago is incorporated under the act in relation to “cities, villages and towns.” (Chap. 24, Rev. Stat. 1874.) If, therefore, the general Revenue act provides, in such cases, a different mode for giving notice or making demand, and a different time at which judgment must be applied for, than is provided in the act in relation to cities, villages and towns, it can have no application to the case, and the ease wall have to be determined solely with reference to the requirements of the Tatter act. Counsel do not question this, but insist both acts relate to the same subject, took effect at the same time, and should therefore be construed as in pari materia.

In our opinion section 179 of the general Revenue act, and sections 151 and 152 of the act in'relation to cities, villages and towns,—which relate to the same general subject, namely, the giving of notice to the property owner of the amount of the judgment of confirmation of special assessment against his property, and the demand for the payment thereof,—can not be construed so as to give practical effect to the language of both, as applicable at the same time to the same subject matter. Section 179 of the general Revenue act makes it the duty of the county collector “to cause demand to be made for the payment of such special assessment, or a notice thereof to be sent by mail, or otherwise, to the owner, if his place of residence is known.” Section 151 of the act in relation to cities and villages makes it the duty of the city collector to give notice thereof “by publishing such notice in one or more newspapers in such city,” etc. ' And section 152 of the same act makes it the duty of the city collector, “as far as practicable, to call upon all persons resident within the corporation whose names appear upon the assessment roll, or the occupants of the property assessed, and personally, or by written or printed notice left at his or her usual place of abode, inform them of such assessment, and request payment of the same. And such collector omitting so to do shall be liable to a penalty of $10 for every such omission; but the validity of the special assessment, or the right to apply for and obtain judgment for any such special assessment, shall not be affected by such omission. ” It is thus seen the officers are different, the notices to be given are different, and, in the one case, the consequence of a failure to give notice is different from what it is in the other.

The difference is further apparent in this, if the county collector does not collect within the proper time, he simply proceeds, under section 182 of the Eevenue act, to advertise and obtain judgment, and his certificate that the required demand was made, or notice given, is made sufficient evidence thereof. (See last sentence of section 179.) But section 153 of the act in relation to cities, villages and towns is as follows: “It shall be the duty of the collector of special assessments, within such time as the city council or board of trustees may by ordinance provide, to make a report, in writing, to the general officer of the county authorized or to be designated by the general Eevenue law of this State to apply for judgment and sell lands for taxes due the county and State, of all the lands, town lots and real property on which he shall have been unable to collect special assessments, with the amount of special assessments due and unpaid thereon, together with his warrant, or with a brief description of the nature of the warrant or warrants received by him, authorizing the. collection thereof, which report shall be accompanied with the oath of the collector that the list is a correct return and report of the lands, town lots and real property on which the special assessment levied by authority of the city of........... (or village of........■. ., as the case may be,) remain due and unpaid; that he is unable to collect the same, or any part thereof, and that he has given the notice required by law that said warrants had been received by him for collection. Said report, when so made, shall be prima facie evidence that all the forms and requirements of the law in relation to making said return have been complied with, and that the special assessments mentioned in said report are due and unpaid.” It is, in our opinion, utterly impossible that these thus widely different provisions can be the law operative in the same municipality at the same time.'

We must then hold, as was held in The People v. Pierce, 90 Ill. 85, with regard to other provisions of these statutes,— and with which the writer of this opinion and Mr. Justice Scott did not concur,—that two distinct classes of municipalities are provided for, and the provisions of the one act applicable to the one class, and those of the other act to the other class; or that, the provisions being repugnant, those of the last act, which is the act in relation to cities, villages and towns, being the last expression of the will of the legislature, must be. held a repeal of those of the former to the extent of the repugnance; but in either view the proceeding under the act in 'relation to cities, villages and towns is sustained. The fact that section 154 of the act in relation to cities, villages and towns requires the general officer, when he shall receive the report of the city collector, to proceed to obtain judgment and make sale as provided by the provisions of the general Revenue law, does not militate against this position, because that section expressly contains the exception that the provisions of the general Revenue act shall not apply “when otherwise provided herein. ” As to the anterior steps of giving notice, making demand, selecting the term of court, etc., it is “otherwise provided therein.”

In Leindecker v. The People, 98 Ill. 21, we held that in respect to- special -assessments levied by a city or town organized under the general Incorporation law, that law confers upon the city council the power to appoint the term of the court at which application for judgment shall be made, which may be a term other than that at which application is required to be made for judgment for State and county taxes. Counsel entirely misapprehends the ground of our decision in Potuin v. Johnson, 106 Ill. 532, in supposing, as he contends in his argument, that we there decided that this case comes under the general Revenue act. We there decided, only, that under the amended Practice act the appeal should have been to this court instead of to the'Appellate Court, because the case “related to the revenue. ” But the case “relates to the revenue” without reference to the title of the statute under which it is proper to proceed.

It is, however, argued by counsel, that if the construction we have given be correct, then the act in relation to cities, villages and towns “offends against the constitution in seven particulars, ” etc. The seven particulars are included within two general objections: First, that the act embraces more than one subject, and the title of the act makes no mention of the power conferred upon county courts to entertain proceedings and render judgments in cases of special assessments ; second, that it is a local or special act. In neither respect, in our opinion, can the objections be maintained.

First—The opening, improving and repairing of streets constitute one of the most usual powers of municipal corporations. We doubt whether an important city, village or town ever was incorporated in this country to which this power was not granted. In the very nature of things it is incidental to the successful exercise of general police powers, and, we think, we are abundantly sustained by authority in asserting that such power is as germane and incidental to the general object of municipal incorporation as any other power exercised by municipalities. Vide Dillon on Mun. Corp. sec. 516.

Precisely this same objection was urged in Prescott v. Chicago, 60 Ill. 121. The proceeding there, as here, was for a judgment against delinquent lands upon- a special assessment. The statute containing the power was entitled “An act to amend the charter of the' city of Chicago, to create a board of park commissioners, and to authorize the levy of a tax in West Chicago, and for other purposes.” Nothing was said about special assessments. It was said in the opinion then filed: “The principal object of the act is to amend the charter of the city of Chicago, and in so doing to extend the city limits, to establish and provide for the improvement and regulation of public parks in the west division of Chicago. All of these purposes are well expressed by the title in these words : ‘An act to amend the charter of the city of Chicago.’ ”

In O'Leary v. County of Cook, 28 Ill. 534, the title of the act was “An act to amend an act entitled ‘an act to incorporate the Northwestern University.’ ” And it was held that a section prohibiting the sale of ardent spirits within four miles of the university was sufficiently germane to the object and purpose expressed in the title, to be free of constitutional objection.

In Neifing et al. v. Town of Pontiac, 56 Ill. 172, under an “Act to extend the corporate powers of the town of Pontiac, ” it w-as held a provision forbidding beer to be brought within three miles of the town, “for the purpose of trafficking therein in any way "whatever, ” was 'sufficiently germane to the subject expressed in the title of the act, and therefore free of constitutional objection. Other illustrations will be found in Guild, Jr. v. City of Chicago, 82 Ill. 473; The People ex rel. v. Wright, 70 id. 388; Belleville R. R. Co. v. Gregory, 15 id. 20; Binz v. Weber, 81 id. 288; Johnson v. The People, 83 id. 431.

The general purpose of this provision is accomplished when the title is comprehensive enough to reasonably include as falling within that general subject, and as subordinate branches thereof, the several objects which the statute assumes to effect.

Second—In The People ex rel. v. Wright, supra, we said, quoting from McAunich v. Mouncl R. R. Co. 20 Iowa, 338: “Laws are general and uniform,—not because they operate upon every person in the State, for they do not, but because every person who is brought within the relations and circumstances provided for is -affected by the laws. They are general and uniform in their operation upon all persons in the like situation, and the fact of their being general and uniform is not affected by the number of those within the scope of their operation.”

In The People v. Cooper et al. 83 Ill. 585, after referring to this doctrine, as announced supra, in The People ex rel. v. Wright, and in speaking of the clause of the constitution prohibiting the enactment of local or special laws for the incorporation of cities, villages, etc., we said: “The evil supposed to exist which led to the adoption of the clause of the constitution under consideration, was dissimilarity in the provisions of charters of different cities, towns and villages, and while it was not designed, by the mere act of adopting the constitution, to repeal the provisions of existing charters any further than they were in conflict with other provisions of the constitution which became operative without the aid of legislation, it was designed that no city, 'town or village should thereafter become incorporated, or have its charter changed or amended, except by virtue of a general law.” And again we said: “The General Assembly p&ssed an act, in force July 1, 1872, providing for the incorporation of cities, and that those incorporated before the adoption of the constitution, under special charters, might change their charters and adopt its provisions. It is unlimited in its application, and, so far as we have- discovered, fully meets the requirements of the constitution. It contains all the provisions essential to a complete municipal code, including those providing for the levying and collecting taxes.” And again we said: “As before observed, there is no constitutional objection to the general Incorporation law, or the general Revenue law, so far as we are aware. The general Incorporation law was an indispensable enactment, to enable cities to become incorporated, and change or amend their charters in conformity with the constitution. ” Afterwards, in Guild v. The People, supra, which was decided after the decision in the above case, although it is reported in an earlier volume than the one in which that case was reported, after referring to the ruling above quoted, we said: “All that is practicable, or could have been intended, was that the legislature should, by a general law, provide for the incorporation of cities, towns- and, villages, or the change or amendment of their charters, leaving it to those interested to bring them within its operation.” And further along in the opinion we also said: “This section of the constitution relates to two classes of cases: First, to cities, towns and villages thereafter to be incorporated; second, to those thereafter to have their charters changed or amended,—and thus .contemplates the probable continuance for some time of the existing want of uniformity in such charters, but intending that all future legislation in respect to such charters should be with a view of producing ultimate uniformity, as far as that would result from the law being general. ” »

Thus, after full consideration and reconsideration, we are as firmly committed to the doctrine as we can be to any doctrine, that the act in relation to cities and villages is a general law, and not local or special, although there may be municipal corporations to which it is not applicable, namely, municipal corporations in existence under special charters at the time of the adoption of the constitution, which have not since sought to have their charters changed or amended. It is general and of uniform application to' all cities, towns and villages thereafter becoming incorporated, or thereafter having their charters changed or amended, to the extent of such change or amendment, and thus fully conforms to the definítion of a general law. The fact that county officers, judicial officers and courts of justice may thus he incidentally affected, is unimportant. All of the same class or grade are affected alike, and what may result in legally enforcing special assessments is precisely what happens, or may happen, with reference to the enforcement of every ordinance which a city council or hoard of village trustees may he empowered to ordain. New duties may thereby incidentally devolve upon officers, and new powers and jurisdictions result to judicial tribunals; hut so long as the sections under which they arise are germane and subordinate to the general purpose of the municipal incorporation as expressed in the title to the act, and affect all within the relations and circumstances provided for alike, so far as we are advised no constitutional objection can be successfully interposed.

No ground for setting. aside the judgment upon motion was shown, other than the defects of jurisdiction claimed to exist, and upon which we have herein expressed our views. The defence was strictly technical, and in our opinion, as has been seen, it is not sustained by the record.

The judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    Allen Breed v. Charles T. Gorham et al.

      Filed at Ottawa November 20, 1883.

    1. Judgment—lien-—on after acquired land. Where an execution is issued upon a judgment in a court of record within one year from the time it is rendered, the judgment will become a lien upon any real estate the defendant in the judgment may acquire subsequent to its rendition, and within seven years; but if no execution is issued thereon within a year, no lien will exist.

      2. Where it is made to appear from the evidence that an execution was issued upon a judgment witkin'one year after its rendition, and placed in the hands of the sheriff, the lien of the judgment will attach, although such execution becomes lost, and is never returned to the clerk’s office.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    Mr. Morton Culver, for the appellant:
    Execution must issue on the judgment within a year from the time it first actually attaches to the specific property. Execution must also issue within one year from rendition of the judgment. Eames v. German Turn Verein, 74 Ill. 54; Harris v. Cornell, 80 id. 54; Hernandez v. Drake, 81 id. 34; St. Joseph Manf. Co. v. Daggett, 84 id. 556; Barron v. Thompson, 54 Texas, 235.
    A judgment lien in the State of Illinois is purely statutory, and, under the terms of the statute of 1872, does not attach to after acquired property of the judgment debtor. Calhoun v. Snider, 6 Binn. (Pa.) 135; Richter v. Slin, 8 S. & R. 439.
    The lien is discharged unless execution issue within one year from the time it first, attached. Hernandez v. Drake, 81 Ill. 34.
    Colby took his title to these premises, if at all, on May 1, 1881. Richter v. Slin, 8 S. & R. 440; Rappleye v. International Bank, 93 Ill. 402.
    The lien attaches upon an equitable title. It did so attach on the equitable title of Colby, on that day. Rogers v. Brent, 5 Gilm. 573; Niantic Bank v. Dennis, 37 Ill. 381; Maghee v. Robinson, 98 id. 466.
    The lien of the judgment had attached, before the second execution issued, and there was such negligence in pursuit of the lien by the second execution, as well as the first, as to cause that lien, if one existed, to become dormant as against an innocent purchaser. The law does not favor the transforming of judgment liens into mortgages. Bennett v. Gamble, 1 Texas, 124; Towns v. Harris, 13 id. 507; Gilmore v. Davis, 84 Ill. 487; Garner v. Willis, Breese, 368; Ross v. Weber, 26 Ill. 221; Davidson v. Waldron, 31 id. 121; Freeman on Executions, sec. 206.
    The judgment in that court being dormant, execution could not properly issue thereon until it was revived by scire facias. Chase v. Frost, 60 Ill. 143.
    The plaintiff in the case of Gorham against Colby was not entitled to an alias execution upon the showing made. Kellogg v. Buckler, 17 Ga. 190; Walls v. Smith, 19 id. 11; Purdon v. Purdon, 2 Miles, (Pa.) 173; Taylor’s Appeal, 1 Pa. St. 392.
    Messrs. Crane & Abbott, for the appellees:
    The judgment became a lien for seven years if execution was issued thereon within one year from its date. Rev. Stat. chap. 77, sec. 1.
    An actual delivery of execution to the sheriff is not necessary except when the lien depends upon such delivery. Merchants’ Ins. Co. v. Schroeder, 104 Ill. 171; Burdick v. Green, 18 Johns. 14.
    The delivery of an execution to the sheriff, and the date of delivery, may be proved by any competent evidence, and the sheriff’s neglect to indorse the date of receiving a writ does not affect its validity, or plaintiff’s rights thereon. Freeman on Executions, see. 98; Hale’s Appeal, 44 Pa. St. 439; Johnson v. McLane, 7 Blackf. 501; Hester v. Keith, 1 Allen, 316 ; Fletcher v. Pratt, 4 Vt. 182.
    Leaving the writ at the sheriff’s office is a delivery to him. Freeman on Executions, see. 298.
    The lien on personal property may be postponed to junior execution by the plaintiff instructing the officer not to levy. (Gilmore v. Davis, 84 Ill. 487; Ross v. Weber, 26 id. 224.) But mere omission to have a levy made is no waiver of the lien on real estate. That is good for seven years. Rogers v. Dickey, 1 Gilm. 644; McHany v. Schenk, 88 Ill. 357.
    The judgment becoming a lien on any lands the debtor then owned, the same lien attached to property subsequently acquired. Freeman on Executions, p. 295, sec. 197; Lea v. Hopkins, 7 Pa. St. 492; Wales v. Bogue, 31 Ill. 464; Root v. Curtis, 38 id. 192.
   Mr. Justice Craig

delivered the opinion of the Court:

On the 10th 'day of October, 1879, appellee Charles T. Gorham recovered a judgment in the Superior Court of Cook county, against Gilbert A. Colby, for the sum of $5500. On the same day an execution was made out' on the judgment by the clerk of the court. On the 1st day of October, 1881, Colby obtained a deed for the land involved in this litigation, which was recorded on December 8, following. Colby and one Gardner had some business transactions together, on the adjustment of which a bill in chancery was filed, and it is claimed that the land in question, under décree of court, was sold by a receiver, and purchased April 1, 1882, by Allen Breed, appellant. On the 8th day of September, 1882, Charles T. Gorham sued out an alias execution on his judgment, which was delivered to the sheriff, and a levy made on the property in controversy. The sheriff advertised the property for sale, and this bill was filed by Breed, the purchaser under the receiver’s sale, to remove appellees’ judgment lien as a cloud upon his title.

The question presented by this record is, whether Gorham, who obtained a judgment against Colby on the 10th day of October, 1879, acquired a lien on the lands in question which was superior to the subsequently acquired title which appellant, Breed, obtained in April, 1882, under the receiver’s sale.

Section 1,-chapter 11, of the statute, provides “that a judgment of a court of record shall be a lien on the real estate of the person against whom it is obtained, situated within the county for which the court is held, from the time the same is rendered or revived, for the period of seven years. * * * When execution is not issued on a judgment within one year from the time the same becomes a lien, it shall thereafter cease to be a lien.” Colby purchased this property October 1, 1S81, and the judgment would become a lien upon it from the time he made the purchase, providing an execution was issued on the judgment within one year from the time it was rendered, otherwise no lien existed. On the day the judgment was rendered an execution was ordered, and in due form made out by the clerk of the court, but no trace of the execution could ever be found in the hands of the sheriff or any of his deputies, and from this fact it is contended that an execution was not issued, within the meaning of the statute.

It will not be necessary to determine, in this case, whether the mere fact that a clerk of a court makes out an execution in proper form, and delivers it to the plaintiff or his attorney, or keeps it in his office, can be regarded as issuing an execution, within the meaning of the statute. The court, on the hearing, found that the evidence introduced by the defendant in the bill was sufficient to establish the fact that the execution was delivered to the sheriff, and if this finding was sustained by the evidence, as we think it was, such finding of fact is conclusive of the case, and the other question is immaterial.

It appears, from the evidence, that the sheriff of Cook county kept a book in which all executions received by him were entered; that he also kept an execution clerk, whose duty it was to receive executions and make the proper entry in the book, and then pass them over to the chief deputy sheriff. These officers all testify that they have examined the book kept by the sheriff, and find no entry of the execution in question, and they have no knowledge of such an execution. In addition to this the execution was never returned to the clerk of the Superior Court. This testimony, in the absence of other evidence, might be regarded as sufficient to make out a prima facie case that the execution was never delivered to the sheriff; but to overcome the force and effect of this testimony the defendant showed that on the day the judgment was rendered an execution was ordered, and the clerk’s record shows that on that day an execution was made out by the clerk in proper form. Crane testified that he ordered the execution, and requested one Johnson to get the execution and deliver it to the sheriff; that he saw Johnson with the execution in his possession, and he was then on his way to the sheriff’s office. Johnson testified that he got the execution from the clerk, and delivered it to some of the sheriff’s employés in the sheriff’s office. If these witnesses are reliable, (and we perceive nothing in the record to impeach their credibility,) it seems plain that the execution was actually delivered to the sheriff, and the sheriff, or his deputies, in the hurry of business, failed to make the accustomed entry in the record which they kept for that purpose. At all events, the evidence introduced upon this point was, in oiir judgment, sufficient to authorize the finding of the court that the execution was issued as required by the statute. If it wras, then the property purchased by the defendant in the judgment became subject to the lien provided by the statute.

The judgment of the Appellate Court must be affirmed.

Judgment affirmed.