text:
    George W. Miller v. Abram M. Pence et al.

      Filed at Ottawa January 25, 1886.

      1. Judgment—whether void for want of jurisdiction—and who may question its validity. A. purchased land at a sale under execution against M., and received a sheriff’s deed, when he filed a bill against B., a purchaser of the same land under another judgment and execution against M., to have the latter sale set aside as a cloud on his title, and obtained a decree to that effect. After this, M. procured a reversal of the first named judgment, claiming that A., as an attorney in the case, bought with notice of the error in the record. A. then procured an assignment of B.’s certificate of purchase, and took a deed thereon to himself, and B., by an arrangement with A., sued out a writ of error from the Appellate Court, and assigned errors, which A. confessed, and the decree setting aside B.’s purchase was reversed and A.’s bill dismissed: Held, that A. acquired the title of M. by the sheriff’s deed on B.’s certificate of purchase, and that he could not question the validity of the judgment of reversal.
    2. The judgment of the Appellate Court reversing a decree setting aside a sheriff’s sale as a cloud on title, is not void for want of jurisdiction of the writ of error, as all bills to remove clouds from title do not involve a freehold. When there is jurisdiction of the persons of the proper parties, there is at least jurisdiction to adjudge whether the particular case involves a freehold, and so whether the court has jurisdiction of the subject matter; and a mistake in respect to the jurisdiction of the court is but error, and the judgment of the court is not void.
    Wbit of Ebbob to the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Mr. Geobge W. Milleb, pro se.

    Mr. Eugene E. Pbussing, for the defendants in error. .
   Mr. Justice Scholfield

delivered the opinion of the Court:

The land in controversy was originally owned by Miller. On the 5th day of December, A. D. 1877, Glass recovered a judgment by default, in the Superior Court of Cook county, against Brahmstadt and Miller, for $963 and costs of suit. Execution was issued thereon, and levied upon the land in controversy on the same day. On the 7th day of January, A. D. 1878, the sheriff sold the land, by virtue of this levy, to Pence, and there being no redemption, he conveyed the land to Pence, by deed, on the 8th day of April, A. D. 1879. Aughinbaugh had previously, on the 26th day of September, A. D. 1877, recovered a judgment against Miller, in the Superior Court of Cook county, for $530 and costs. A 'pliuriesexecution issued thereon was levied on the land in controversy on the 3d day of December, A. D. 1878, and on the 26th day of December, A. D. 1878, the sheriff sold the land, by virtue of this levy, to Aughinbaugh. In May, 1879, Pence filed his bill in chancery, in the Superior Court of Cook county, against Aughinbaugh, to set aside the last mentioned levy and sale as a cloud upon his title to the land in controversy, and a decree thereon was rendered in favor of Pence, as prayed in his bill, on the 17th day of October, A. D. 1879. Aughinbaugh appealed from that decree to the Appellate Court for the First District, and that court, at its March term, A. D. 1880, affirmed the decree of the Superior Court. After the sale was made by the sheriff to Pence, Miller sued out a writ of error from the Appellate Court for the First District, to the Superior Court of Cook county, on the judgment in favor of Glass and against Brahmstadt and Miller, under which that sale was made, and thé Appellate Court, at its October term, A. D. 1882, reversed the judgment of the Superior Court, and remanded the cause. Pence entered into possession of the land in the summer of A. D. 1879, fenced it, built a house upon it, and placed a tenant in control under a lease of the tract, and has had the actual possession ever since. Miller brought this suit against Pence and his tenants for possession of the land, at the July term, A. D. 1884, of the Superior Court. Afterwards Pence bought Aughinbaugh’s certificate of purchase, and Aughinbaugh, as a part of the contract, agreed to sue out a writ of error from this court to the Appellate Court for the First District, upon the judgment of that court affirming the decree of the Superior Court of Cook county, in favor of Pence and against Aughinbaugh, setting aside , the sale to Aughinbaugh, upon which Pence was to confess errors, all of which was done, and the decree was reversed and the bill was dismissed. Miller was not a party to the bill filed by Pence against Aughinbaugh, and, of course, was in no way affected by the proceeding. The sheriff conveyed to Pence by virtue of the assignment to him of the Aughinbaugh certificate of purchase.

The contention of Miller, who is the plaintiff in error here, is, that Pence was Brahmstadt’s attorney before, during and after the time Glass obtained the judgment against Brahmstadt and Miller; that in that case Brahmstadt and Pence were the real plaintiff and attorney to collect this claim from Miller’s property, through Glass, the nominal plaintiff, and the attorney, Garnett, who assumed to represent him, so that even if Pence bought for himself at the sheriff’s sale, he is chargeable with notice, as plaintiff’s attorney, of the defect in the record for which the judgment was reversed. It is also further contended that Pence had notice in fact, at'the time he purchased, of the defective condition of the record. We are unable to say that the preponderance of the evidence sustains either of these contentions. Pence and Garnett both testified that Garnett was the attorney of Glass in the suit, that Pence had nothing .to do with obtaining the judgment, and' that he did not consult with Pence about it, and the other evidence fails to disprove this.

But waiving this view of the case, we are unable to perceive why the title derived under the Aughinbaugh judgment is not conclusive against Miller. He made no redemption from the sale under that judgment, and took no steps to procure its reversal. The question between Pence and Aughinbaugh was simply one of priority, and did not concern him, • and he was not, for that reason, a party to the litigation between them. However irregular or improper the reversal of the judgment of the Appellate Court, on the writ of error sued out of this court, and the reversal of the decree of the Superior Court, and dismissal of the bill by that court, such action can not, in this form of proceeding, and especially by one who was not a party to the record, be questioned. In any view it was but irregular. It was not void, and an absolute nullity, as is now claimed by counsel for plaintiff in error.

Conceding that Aughinbaugh had a freehold, yet all bills to remove clouds upon titles do not involve freeholds. (See Hutchinson v. Howe, 100 Ill. 11.) And where they do not involve freeholds, the appellate jurisdiction of the Appellate Court is unquestioned. Having jurisdiction, in some cases, of bills to remove clouds from titles, it follows that in all cases of bills to remove clouds from titles, where there is jurisdiction of the person, there is, at least, jurisdiction to adjudge whether the particular case involves a freehold, and so whether the court has jurisdiction of the subject matter, and, necessarily, therefore, if the court should make a mistake and adjudge that no freehold is involved, where, in fact, freehold is involved, it would be but error, and cause for reversal on appeal or writ of error. Bostwick et al. v. Skinner et al. 80 Ill. 152.

This bill by Pence against Aughinbaugh in no way interfered with Miller’s right of redemption, and it can afford him no excuse for not having made redemption.

We find no sufficient reason in the record for reversing the judgment below, and it is therefore affirmed.

Judgment affirmed,.


source: Caselaw Access Project

author: Mr. Chief Justice Mulket

license: Public Domain

text:
    Louisa S. Meserve v. John Clark, Jr.

      Filed at Ottawa January 25, 1886.

    1. Appeals and appeal bonds—necessity of compliance with order granting the appeal—liability upon bond not so executed. An appeal from the trial court, to be effective, must be in conformity with the order allowing it. But it does not follow that an appeal bond, filed not in accordance with the order allowing the appeal, is not obligatory on the parties executing it.
    2. Where an appeal was allowed to two defendants upon their entering into bond, with security to be approved, and only one of 'them gave the bond, and the appeal was dismissed by this court, it was held, that the parties who did execute the bond were liable on the same, and that they were estopped by the recital therein from denying that an appeal was taken.
    Appeal from the Appellate Court for the First District;— heard in that court on writ of error to the Superior Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.
    Mr. H. 0. McDaid, for the appellant:
    The order allowing an appeal being conditioned that both defendants enter into bond, which was not done, no appeal was ever perfected in the case, and the bond filed never became operative or valid as an appeal bond. Branigan v. Rose, 3 Gilm. 123; Owen v. McKethe, 5 id. 79; Simpson v. Alexander, id. 260; Propeller Niagara v. Martin, 42 Ill. 106; Carson v. Merle, 3 Scam. 168; Ryder v. Stephenson, id. 539; Johnson v. Barber, 4 Gilm. 1; Watson v. Thrall, 3 id. 69.
    Mr. John K. Parker, for the appellee:
    The argument of counsel for appellant is outside the record, and is therefore not effectual for the purpose of reversing the judgment of the circuit court in this cause. His argument tends to show that the bond executed by Curtis C. Meserve, as surety, might have been objected to by the opposite party, and it would seem by the earlier decisions that the appeal in that case might have been dismissed on motion of the opposite party, but, nevertheless, the surety would be liable on the bond. It was a voluntary undertaking, and is binding on him. Its sufficiency as an appeal bond, and the obligation which the surety assumed by executing the bond, are different questions. George v. Bischoff, 68 Ill. 236.
   Mr. Chief Justice Mulket

delivered the opinion of the Court:

John Clark, Jr., on the 13th of April, 1870, recovered a judgment in the Superior Court of Cook county, against John Clark and Albert Brinkerhoff, for $191.50. The defendants in the judgment prayed an appeal to this court, which was allowed, “on their filing their appeal bond therein in the penalty of $400, with security, to be approved by one of the judges of that court.” On the 23d of the same month an appeal bond was filed in the cause, signed by Brinkerhoff, and Curtis C. Meserve, as his surety, defendant Clark not joining in the appeal. Brinkerhoff having failed to prosecute the appeal with effect, the same was, on motion of appellee, dismissed by this court at its September term, 1870. The judgment from which the appeal was taken not being paid according to the condition of the bond, and Meserve having, in the meantime, died, appellee filed the claim, together with the appeal bond and record of the proceedings, in the county court of Cook county, against Meserve’s estate. That court, upon the consideration of the claim, entered an order allowing the same. The executrix appealed from that order to the Superior Court of Cook county, where the cause was tried de novo, with like results. She thereupon appealed to the Appellate Court for the First District, where the judgment of the Superior Court was affirmed, and by her further appeal the case is now here for review.

It is well settled by the decisions of this court that an appeal, to be effective, must be in conformity with the order of the court allowing it. Carson v. Merle, 3 Scam. 168; Watson v. Thrall, 3 Gilm. 69; Ryder v. Stephenson, 3 Scam. 539; Johnson v. Barber, 4 Gilm. 1; Simpson v. Alexander, 5 id. 260; Branigan v. Rose, 3 id. 123; Owens v. McKethe, 5 id. 79; Niagara v. Martin, 42 Ill. 106.

On.the authority of these cases the appellant claims that no appeal, either in law or fact, was ever taken, and insists it necessarily follows that the appeal bond in question was and is an absolute nullity. It may be admitted that no appeal was taken that would have affected the rights of appellee, had he seen proper to disregard it. He might well have proceeded with the collection of his claim, just as if no appeal had been attempted, or he might have appeared in this court and had the appeal dismissed on the ground it was not taken by both the defendants,—or, in other words, because it was not taken in conformity with the order of the court allowing it. Appellee did so appear, and on his motion the appeal was dismissed, on the ground the record had not been filed within the time prescribed by law. Thus it will be seen that both parties treated the action of Brinkerhoff and Meserve, in filing the bond, as an appeal from the judgment, and it is so treated and characterized in the proceedings in this court. Recurring to the final order in -the case, we find this language: “It is therefore ordered by the court that this appeal be dismissed, and that a procedendo be awarded, ” etc. It is clear the bond was filed by the parties executing it for the express purpose of taking an appeal from the judgment to this court. The bond itself recites that the appeal had been prayed for and obtained, and provides the bond is to be void if -the appeal is prosecuted with effect, etc. These facts considered, the question is not whether the appeal was properly taken, for it is conceded it was not; but the question is, ought the appellant, in a suit upon the bond, be heard to say that no appeal was ever taken? Upon what principle can “she be permitted to question the truth of the recitals in that instrument ? The general rule unquestionably is, that the maker of a bond is bound by the recitals in it, whether they are true or false. There are some" exceptions to this rule, but we do not think this case comes within them.

We see no reason why the bond in question is not valid as a voluntary contract. There is certainly no law prohibiting parties from 'entering into such an obligation, and the expenses incurred by appellee in defending the appeal on the faith of the bond, afford a sufficient consideration for entering into it. We think the present case comes within the principle of the case of George v. Bischoff, 68 Ill. 236.

The judgment will be affirmed.

Judgment affirmed,.


author: Mr. Justice Sheldon

text:
    Joseph Kelly v. The People of the State of Illinois.

      Filed at Ottawa January 25, 1886.

    1. Criminal law—increase'of punishment upon subsequent conviction for further offences—constitutionality of act of 1883. .The first section of the act of 1883, respecting conviction upon second and third offences, and providing for increased punishment on such convictions, is not in violation of section 11, article 2, of the constitution, requiring all penalties to be proportioned to the nature of the offence, nor of the constitutional provision that no one shall be put in jeopardy twice for the same offence.
    2. It would be entirely competent for the legislature, in the absence of this act, to affix as a punishment for the first commission of any one of the crimes named therein, the highest punishment that is named in the act, and it would not be for the court to say that the penalty was not proportioned to the nature of the offence.
    3. Same—/or what offences the subsequent convictions must be had, in order to an increase of punishment. Under section 1 of the act of 1883, providing for an increased punishment for a second or third conviction, it is not necessary that the subsequent conviction shall be for the same identical character of offence. It is sufficient if the accused shall have been convicted of any one of the offences named in the act.
    4. Same—effect of mere error or irregularity in a former conviction, when offered to be shown as a basis for increased punishment. Where a person indicted for robbery, pleaded not guilty, and waived a trial .by jury, and was found guilty, and sentenced to the penitentiary for one year, and served out his term, and was again indicted for burglary, the indictment showing his former conviction, it was held, that conceding the former conviction to have been erroneous, the judgment was not void, and was properly admitted in evidence on the trial of the second indictment, under the act of 1883, as a basis for an increased punishment.
    5. Judgment—effect of mere error, and how that may be availed of. It is a general rule that where a court has jurisdiction of the subject matter and of the person, its judgment in the case will not be void, although it may be erroneous, and its validity can not be questioned in a collateral proceeding.
    6. Jurisdiction—defined—and when acquired. The power to hear and determine a case is jurisdiction. It is coram judice whenever a case is presented which brings this power into action. So when a person is indicted and arrested, and pleads not guilty as to the offence charged, the court acquires jurisdiction, and its judgment of conviction will not be a nullity merely for the reason of its being based upon a finding by the court without a verdict by a jury.
    Writ of Error to the Criminal Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Mr. J. M. Longenecker, for the plaintiff in error:
    The act under which the plaintiff in error was convicted (chap. 38, see. 272, Stat. of 1883,) is unconstitutional, for the reason that the punishment provided for is not in proportion to the nature of the offence, but is because of a former conviction for which the person charged has paid the penalty. Sec. 11, art. 2, Const. 1870.
    Under this act it is really putting the person in jeopardy twice for the same offence, which is in violation of section 10, article 2, of the constitution of 1870.
    We insist that the second conviction must be for the same crime as the former,—that is, if once tried for burglary and convicted, and thereafter convicted of burglary, he shall receive the highest punishment for burglary at such last conviction.
    Before the record of a former conviction can be used as evidence against the person on trial to show a former conviction, it must be the record of a.legal former conviction. The former conviction in this case was a nullity for want of power in the court to render the judgment. The court could not try the case, as it had no jurisdiction, and the defendant could not confer it by waiving a jury. The only tribunal to fix punishment in the penitentiary on a plea of not guilty is a jury. Sec. 444 of Crim. Code. See, also, sec. 428.
    According to the common law, all trials for felonies must be tried by a jury of not less than twelve men. Cooley’s Const. Lim. 395, 399, 500.
    Consent can not confer jurisdiction. See Foley v. People, Beecher’s Breese, 57; Buseman v. City of Peoria, 16 Ill. 484; State v. Maynard, 14 id. 420; Ginn v. Rogers, 4 Gilm. 134; State v. Maine, 27 Conn. 281; Hill v. People, 16 Mich. 351.
    The following cases hold that trial by jury can not be waived in cases of felonies: State v. Lockwood, 43 Wis. 403; Bond v. State, 17 Ark. 290; People v. Smith, 9 Mich. 193; League v. State, 36 Md. 259; People v. O’Neill, 48 Cal. 257; Carpenter v. State, 5 Miss. 163; Brown v. State, 16 Ind. 496; Wharton on Crim. Pleading and Prac. sec. 893; 1 Bishop on Crim. Prac. 893.
    Mr. Julius S. Gbinnell, State’s Attorney, for the People:
    The Habitual Criminal act is not unconstitutional. It does not put a person in jeopardy twice for the same offence.
    A statute may provide a heavier penalty for a second or third offence than for the first. 1 Bishop on Grim. Law, 959 ; 12 Wharton on Grim. Law, 13; 1 Archbold’s Grim. Prac. & PI. 1165.
    The record of the former conviction was sufficient. The court had jurisdiction, and its judgment is valid.

      If the defendant has consented to any step in the (criminal) proceedings, or if it has been taken at his request, or he did not object to it at the proper time when he might, he can not afterward complain of it, however contrary it was to his constitutional, statutory or common law rights. 1 Bishop on Grim. Prae. sec. 117, et seq.,- 1 Bishop on Grim. Law, sec. 996.
    No defendant is presumed to waive any of his rights. All of them are guaranteed to him by the constitution and laws, and in no way can he be forced to relinquish them; but if á prisoner expressly waives some of these constitutional rights, he ought to be estopped from finding fault.
   Mr. Justice Sheldon

delivered the opinion of the Court:

Joseph Kelly, at the January term, 1884, was tried by a jury in the Criminal Court of Cook county, for burglary, the indictment containing a count setting forth a former conviction, at the July term, 1882, of said Kelly, for robbery. He was found guilty of burglary, and the jury, under instruction of the court, fixed his punishment at fourteen years’ imprisonment in the penitentiary. The court sentenced him accordingly.

Several questions are raised with respect to the act respecting conviction upon second and third offences, approved June 23, 1883. (Laws 1883, p. 76.) That act, in its first section, is as follows:

“That whenever any person having been convicted of either of the crimes of burglary, grand larceny, horse stealing, robbery, forgery or counterfeiting, shall thereafter be convicted of any one of such crimes committed after such first conviction, the punishment shall be imprisonment in the penitentiary for the full term provided by law for such crime at the time of such last conviction therefor; and whenever any such person, having been so convicted the second time as above provided, shall be again convicted of any of said crimes committed after said second conviction, the punishment shall be imprisonment in the penitentiary for a period not less than fifteen years: Provided, that such former conviction or convictions and judgment or judgments shall be set forth in apt words in the indictment. ”

It is objected that the act is unconstitutional in that it violates the provision that “all penalties shall be proportioned to the nature of the offence. ” (Sec. 11, art. 2, Const. 1870.) It is said the punishment provided for by the act is not in proportion to the nature of the offence, but is because of a former conviction for which the person charged has paid the penalty. Similar statutes have been adopted in many of the States, and they are upon the principle that it is just that an old offender should be punished more severely for a second offence,—that repetition of the offence aggravates guilt. (1 Bishop on Grim. Law, 959; 1 Wharton on Grim. Law, see. 13.) It would be entirely competent for the legislature, in the absence of this act, to fix as a punishment for the first commission of any one of the crimes named, the highest punishment that is authorized by the act, and it would not be for the court to say the penalty was not proportioned to the nature of the offence.

It is urged that, under this act, it is putting the accused in jeopardy twice for the same offence, in violation of section 10, article 2, of the constitution. There is no trial twice for the same offence, but twice for two crimes committed at different times. The constitutional objections are without force.

It is next insisted that under this act the second conviction must be for the same crime the former conviction was for. We do not so read the statute. The language is most plain, that whenever any person haying been convicted of either of the several enumerated crimes, shall thereafter be convicted of any one of such crimes, etc. It seems quite clear that the second conviction is not to be of a particular one of the crimes —the one for which the former conviction was had—but of any one of the crimes named.

The record, introduced to show a former conviction for robbery, shows that the accused was indicted for robbery at the July term of court, 1882, and that he pleaded not guilty; that he waived the intervention of a jury, and was tried by the court without a jury, and found guilty by the court in manner and form as charged in the indictment,—that is to say, of robbery,—and was sentenced to the penitentiary for one year. It is insisted this did not show a legal conviction of robbery,—that the accused in a criminal case of felony can not waive a trial by jury, and be tried by consent by the court, and upon a finding of guilty on such a trial, be legally sentenced thereon. Conceding this to be so, and that a judgment upon such a finding of guilty would be irregular and erroneous, it does not follow that such conviction was void, an absolute nullity, and not to be taken here as a former conviction'. There is a distinction between void and erroneous; and the general rule is undoubted, that where the court has jurisdiction of the subject matter and of the person, its judgment in the case will not be void, although it may be erroneous, and that in a collateral proceeding the validity of the judgment can not be called in question. In the application of the rule to the precise kind of case which is here presented, what of authority we have met with is not entirely harmonious. Thus in Windsor v. McVeigh, 93 U. S. 274, in the opinion by a divided court, by way of illustration of the argument that a judgment may be void notwithstanding general jurisdiction of the subject, in citation of instances it is said: “So a departure from established modes of procedure will often render the judgment void. Thus the sentence of a person charged with felony, upon conviction by the court without the intervention of a jury, would be invalid for any purpose, ” no authority being cited. In Commonwealth v. Dailey, 12 Cush. 84, in sustaining a verdict of guilty rendered in a case of misdemeanor, where the defendant had consented to a trial by eleven jurors, which was made a ground of exception, it was said, “as it did not affect the jurisdiction of the court, the exception was one that the accused might waive.” So in the recent case of Lowry v. Howard, decided by the Supreme Court of Indiana, 103 Ind. 440, where, upon a plea of guilty to an indictment for murder, the court fixed the punishment at imprisonment in the State’s prison for life, and so sentenced the prisoner, when, under the law, a jury should have assessed the punishment to suffer the penalty of death, or be imprisoned in the State’s prison for life, it was held that the judgment of the court was erroneous, but that it was not void. And in Ex parte Bond, 9 S. C. 80, where a prisoner was convicted of assault with intent to kill, and sentenced to confinement in the penitentiary, when the offence was not punishable by confinement in the penitentiary, it was held that the sentence was not void, but only erroneous. In Ex parte Watkins, 3 Pet. 193, Chief ■Justice Mabshall said: “An imprisonment under a judgment can not be unlawful unless that judgment be an absolute nullity, and it is not a nullity if the court has general jurisdiction of the subject, although it should be erroneous.” In Windsor v. McVeigh, supra, it was said the general doctrine upon this subject is only correct when the court proceeds, after acquiring jurisdiction of the cause, according to the established modes governing the class to which the case belongs, and does not transcend, in the extent or character of its judgment, the law which is applicable to it. It was further said that the more correct statement of the doctrine was in Cornett v. Williams, 20 Wall. 250, that “the jurisdiction having attached in the case, everything done within the power of that jurisdiction, when collaterally questioned, is held conclusive of the rights of the parties, unless impeached for fraud.”

The power to hear and determine a cause is jurisdiction. It is coram judice whenever a case is presented which brings this power into action. (United States v. Arredondo, 6 Pet. 709; Bush v. Hanson, 70 Ill. 482.) ' In the case here of the former conviction, there was undoubted jurisdiction both of the subject matter and. person. The court had power to proceed to hear and determine. The judgment was not such an one as the court had no power, under an-y circumstances or upon any state of facts, to pronounce in such a casé, but it was one within the power of the jurisdiction which had attached. (See People ex rel. Tweed v. Liscomb, 60 N. Y. 570.) If there had been a finding of guilty and of the punishment by a jury, or if there had been a plea of guilty by the prisoner, in either such case the judgment would have been right. If the judgment be wrong, it is because it was rendered upon the court’s finding the guilt and fixing the punishment,—so that the correctness of the judgment depended upon the particular state of facts which was presented in the progress of the hearing and determination of a case of which the court had jurisdiction. The error was one in the exercise of jurisdiction, 'and not from want of jurisdiction.' The only suggestion of ground there can be for holding the judgment void, and not erroneous, merely, is that there wras a departure from the established mode of procedure. Almost any deviation from law might be regarded a departure from the established mode of procedure. To admit such a ground of holding a judgment void, would, as it seems to us, in a great measure break down and make uncertain the well established distinction in regard to the validity of judgments, when collaterally questioned, between being void for want of jurisdiction, or erroneous, merely, in the exercise of jurisdiction.

In Cooley’s Const. Lim. (5th ed.) 504, 505, it is laid down: “It is a general rule that irregularities in the course of judicial proceedings do not render them void. An irregularity may be defined as the failure to observe that particular course of proceeding which, conformably with the practice of the court, ought to have been observed in the case. ” And on page 507: “In any case, we suppose a failure to award a jury on proper demand would be an irregularity, merely, rendering the proceedings liable to reversal, but not making them void. ”

We are of opinion the former conviction here should be adjudged to be no more than erroneous, and not to be an absolute nullity,—and especially so, under the circumstances of this case, where the defendant accepted the sentence of the court, and suffered it to be carried into execution, by undergoing the punishment. The court had fixed the minimum punishment for robbery, one year in the penitentiary,—the maximum being fourteen years. «The defendant may have deemed it for his interest to abide by the sentence of the court, rather than to have it set aside and he be exposed to the peril of having a greater punishment affixed by a jury. The judgment having been acquiesced in, and full execution had of it, we do not see how it can be looked upon as a nullity. It must be held to be for the defendant an acquittance from the crime. Upon another indictment for the same offence he might plead the former conviction in bar; and if in favor of the prisoner, the former conviction would not be held a nullity, neither as against him, should it be so held.

Perceiving no error in the record, the judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Magruder

text:
    Sophia Cherry v. Mehitable Greene et al.

      Filed at Ottawa January 25, 1886.

    1. Tbusts and tbustees—conveyance in trust to pcuy debts, and for other purposes—whether a power of sale is given. No particular form of words is necessary to create a power of sale. Any words which show an intention to create such power, or any form of instrument which imposes duties upon a trustee that he can not perform without a sale, will necessarily create a power of sale in the trustee.
    2. An assignment or conveyance of land to trustees to pay all the just debts of the grantor, necessarily implies a power of sale in the trustees, though none be given in words.

      3. Where trustees are authorized to devote so much of the principal or income of the trust estate as may be necessary for the support of the grantor and his family, this will, when necessary, confer a power of sale.
    4. Where a deed conveying property in trust to trustees, directs that in certain contingencies the fund therein named “shall be paid over” by the trustees to the wife and children of the grantor, such direction imports and confers the power to sell.
    5. Purchaser from trustee—whether hound to see to the application of the purchase money. Where property is conveyed in trust to pay debts generally, and apply the balance- to the support of the grantor’s family, the purchaser from the trustee is released from the obligation to see to the application of the purchase money.
    6. In this case a person conveyed all his property, real and personal, to trustees in trust, first, to pay all his just debts and the expenses of the trust; second, to devote so much of the principal or income thereof as might be necessary for the support of the grantor and his family; third, in case of his death, upon the written request of his heirs the trust should determine and the fund be paid over to his wife and children, and in default of such request, to devote so much of the principal or income as might be necessary for the use and support of his wife and children; fourth, upon the death of his wife, she surviving him, and upon the death of each of his children surviving him, if the trust was not previously terminated, to pay over the -proportion of said fund the wife or child would have been entitled to in case of a division of said fund at the death of the wife or child, to such person or persons as his wife or child should by will appoint, etc., the wife joining in the deed and releasing her dower and homestead; Held, the trustees became thereby invested with the legal title to the land, and had the power to sell and convey the same to a purchaser, and that the purchaser was not bound to see to the proper application of the purchase money.
    Appeal from the Appellate Court for the First District;— heard in that court on writ of error to the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Mr. George Bass, for the appellant:
    If the trustees have not discretionary power to convert realty into personalty, then the purchaser is bound to see if the necessity has arisen which requires a sale, and look after the application of the purchase money, otherwise he takes no title.
    The purchaser is bound to know the full particulars and purpose of the power under which he purchases, and if he makes any mistake in the construction of the power, or if he does not fully inform himself, and acts in ignorance, he will take no title if the power is not properly executed. 2 Perry on Trusts, (3d ed.) sec. 602y.
    It will be seen that the trust deed does not in express terms authorize the trustees to dispose of the realty at their discretion ; therefore, if they have such a power, it must be implied, and courts do not favor such a construction. Courts do not favor constructions that confer upon trustees absolute and uncontrollable powers. 2 Perry on Trusts, (3d ed.) sec. 511 a.

    The plain meaning of the deed is, that the trustees should hold the property conveyed, and apply the income, in the first instance, to the payment of the debts and the use and support of the' grantor and his family. It is submitted that the trustees are not authorized to sell and dispose of the real estate forming a portion of the principal, until the income is insufficient to pay debts and support the grantor and his family.
    Mr. George W. Smith, for the appellees:
    The whole scope and tenor of the deed of trust contemplates the absolute management and control of the property by the trustees. The trustees are “to devote so much of the principal or income thereof as may be necessary for the use and support of myself and my family. ” Under this clause the discretion of what is necessary rests solely with the trustees. (Russell v. Grinnell, 105 Mass. 425.) They may then use all the principal if they see fit, for this purpose. To do this, they must have power to sell the real estate. West v. Fitz, 109 Ill. 425.
    The trustees are “to pay all my just debts.” An assignment in trust to pay debts will necessarily imply a power to sell, though none is given in words. Perry on Trusts, sec. 766.
    Sections 3, 4 and 5 of the deed provide that the trustees shall in different contingencies “pay over” the fund to different persons. This provision to “pay over” is held to contemplate the power to sell by the trustees. The fund is not to be transferred to or divided among certain persons, but the trustees are to “pay it over” to them. This contemplates a possible complete transmutation of the fund at that time. Going v. Emery, 16 Pick. 112; Purdie v. Whiting, 20 Pick. 25; Goodrich v. Proctor, 1 Gray, 570.
    The deed implies the power of sale, then, first, in its general scope and intent; second, in the power of the trustees to use the principal for the use and support of the beneficiaries ; third, in the power “to pay all my just debts;” and fourth, in the direction to pay over the fund to certain persons.
    ■ The rule is, that where the purposes of a trust can not be accomplished without turning the estate into money, a power of sale will be implied. Hill on Trustees, (4th Aim ed.) 355.
    The case made by the deed of trust comes within the principle which is held by this court to be familiar law, that land is to be regarded as money when its proceeds are to be distributed, and in such cases a power to sell will be raised by implication. Rankin v. Rankin, 36 Ill. 293; Jennings v. Smith, 29 id. 116; Baker v. Copenbarger, 15 id. 103.
   Mr. Justice Magruder

delivered the opinion of the Court:

In this ease a bill was filed by the appellees, against the appellant, to enforce the specific performance of a contract for the sale of five acres of land, and a decree entered granting the prayer of the bill. This decree was affirmed by the Appellate Court, from which the case is brought by appeal to this court.

The defendant below, appellant here, refused to carry out her contract of purchase, on the ground that Crapo and Clifford, trustees, (two of the appellees here and two of the complainants,) who filed the bill below, and who held the title to one-sixth of the premises in question, as trustees, had no.power to sell and convey to her the said one-sixth, under the following instrument, to-wit:

“Know all men by these presents, that I, Robert B. Greene, of New Bedford, county of Bristol, Commonwealth of Massachusetts, in consideration of one dollar and other valuable considerations, hereby give^ grant, bargain, sell and convey to William W. Crapo and Charles W. Clifford, of said New Bedford, all my property and estate, real and personal, of every name and nature, and wherever situated, including herein all my right, title and interest in and to the property and estate of my beloved father, David R. Greene, late of New Bedford, aforesaid, to have and to hold the said property and estate unto "them, the said Crapo and the said Clifford, and the survivor of them, their heirs and assigns, forever, but strictly in trust, to the following uses and purposes, to-wit:
“First—To pay all my just debts and the expenses of this trust.
“Second—To devote so much of the principal or income thereof as may be necessary for the use and support of myself and my family, and, as to any portion of said fund or its income so expended, the receipt of myself or my wife shall be a sufficient discharge to my said trustees.
“Third—In case of my death, if my heirs at law shall in writing so request, said trust shall determine, and said fund shall be paid over to my wife and children in the proportion to which they would be entitled as my heirs at law, and in default of said request to devote so much of the principal or income of said fund as may be necessary for the use and support of my wife and children.
“Fourth—Upon the death of my wife, if she survives me, and upon the death of each of my children who shall survive me, if this trust has not previously terminated, to pay over the proportion of said fund to which said wife or child would have been entitled in case of a division of said fund at the death of my said wife or child, to such person or persons as my said wife or child shall by will appoint.
“Fifth—If, after the death of myself, my wife and my children, there shall remain any portion of said fund in the hands of my said trustees othérwise unprovided for by this instrument, to pay over the same to such person or persons as my wife shall direct.
“And I, Mary P. B. Greene, wife of said Bobert B. Greene, join in this deed in token of my release of all right to dower and homestead in the aforegranted premises.
“In witness whereof we have hereunto set our hands and seals, this eighth day of July A. D. 1879.
Bobt. B. Greene, (L. S.)
Mary P. B. Greene. (L. S.) ”

The question is, whether the trustees under the foregoing deed have the power to sell and convey the premises in question. The deed of trust from Bobert B. Greene and wife, vested the legal title to the five acres in the trustees. The deed is, in part, an assignment in trust to pay debts. The first clause directs the trustees “to pay all my just debts, ” etc. Such an assignment necessarily implies a power of sale, though none is given in words. (Perry on Trusts, sec. 766.) No particular form, of words is necessary to create a power of sale. Any words which show an intention to create such power, or any form of instrument which imposes duties upon a trustee that he can not perform without a sale, will necessarily create a power of sale in the trustee. (Idem.) The second clause of the deed clothes the trustees with large dis-. cretionary powers. (Russell v. Grinnell, 105 Mass. 425.) They are authorized “to devote so much of the principal or income thereof as may be necessary for the use and support of” the grantor and his family. It might become necessary to devote the whole of the principal to such use and support, and this would necessitate a sale of the realty. (West v. Fitz, 109 Ill. 425.) Again, the third clause of the deed directs, that in certain contingencies the fund therein named “shall be paid over” by the trustees to the wife and children of the grantor. Such a direction to trustees to “pay over” has been held to import and confer the power to sell. Going v. Emery, 16 Pick. 112; Purdie v. Whiting, 20 Pick. 25.

We are of opinion, therefore, that Crapo and Clifford, the trustees named in’the above recited instrument, are vested with power to sell the premises in question, nor will a purchaser from them be under obligation to see to the application of the purchase money. Where, as here, the trust is to pay debts generally, and apply the balance to the support of the grantor’s family, the purchaser is released from such obligation. Perry on Trusts, sec. 795; Hill on Trustees, page 342.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.

The record in this case was originally assigned to Justice Dickey. No opinion having been written by him in his lifetime, the record was re-assigned in November, 1885.


author: Mr. Justice Soott

text:
    The Wabash, St. Louis and Pacific Railway Company v. Maria Peterson.

      Filed, at Springfield January 22, 1886.

      1. Former adjudication—on writ of error or appeal. Matters decided by the Appellate Court on appeal or writ of error, can not be reexamined in the same court on a subsequent writ of error brought on the same record.
    2. Where the Appellate Court affirms a judgment on appeal, notwithstanding the errors assigned, its decision is res judicata, and presents a bar to an assignment of the same errors on a second appeal to that court.

      3. Same—whether the case on the former appeal was disposed of on its merits—as affecting the right to a second appeal. Where the record of the Appellate Court shows that the judgment appealed -from was affirmed in all respects, notwithstanding the errors assigned, this must be taken as an affirmance or judgment on the merits, and parol evidence is inadmissible to show the court did not determine the case on the merits.
    4. The record of a court can never be contradicted, varied or explained by evidence dehors the record itself. A record imports absolute verity, and it must be tried and construed by itself.

      5. To a plea of a former judgment of the Appellate Court affirming the same judgment sought to be reviewed, the plaintiff in error replied specially that the merits of the case were not heard and determined in the Appellate Court at the former term when the cause was before it, on account of the misprision of the clerk of the trial court in failing to give the bill of exceptions in the transcript of the record: Held, that the replication was bad on ■demurrer.
    6. Presumption—in support of a judgment. Where the Appellate Court finds an issue on a replication of nul tiel record to a plea of a former judgment of that court in bar of a writ of error, this court, in the absence of anything in the record showing what evidence was introduced in the Appellate Court, will presume that the evidence warranted the finding.
    Writ of Error to the Appellate Court for the Third District ;—heard in that court on writ of error to the Circuit Court of Mason county; the Hon. Cyrus Epler, Judge, presiding.
    Messrs. Brown & Kirby, for the plaintiff in error:
    Proceedings in one case constitute no bar to another, unless the merits of the controversy have been passed upon. Schertz v. People, 105 Ill. 27.
    The judgment of the Appellate Court constituted res judicata only as to the questions which it had power to hear and determine. Hawley v. Simmons, 102 Ill. 115.
    A judgment rendered because of a defect in the pleadings is no bar to a further action. The omission to incorporate the bill of exceptions in the record is the same as an omission of an essential allegation in a declaration. A judgment affirming in such case is no bar. Lessee v. Truman, 10 Ohio St. 45; Johnson v. White, 13 S. & M. 584; Shields v. Taylor,
      id. 127; Greeley v. Smith, 3 M. & W. 236; Gould v. Railroad Co. 91 U. S. 526; Gilman v. Rives, 10 Pet; 298; Smalley v. Eddy, 19 Ill. 207; Wilbur v. Gilman, 21 Pick. 250; 6 Wait’s Actions and Defences, 771, 775; Vanlandingham v. Ryan, 17 Ill. 26.
    It is only where “the first appeal covers the merits of the controversy in all its bearings, ” that the matters become res judicata. Walker v. Doane, 108 Ill. 236; Newberry v. Blatchford, 106 id. 584; Bentley v. O'Brian, 111 id. 53; Neff v. Smith, 111 id. 101; Smith v. Brittenham, 98 id. 188; Hanna v. Reed, 102 id. 596.
    The rule is, that res judicata and estoppel apply only to matters put in issue. Bigelow on Estoppel, 27; Miller v. McManus, 57 Ill. 158; Eastman v. Cooper, 15 Pick. 279; Bender v. Shannon, 3 Gray, 392; Sawyer v. Woodbury, 7 id. 502; Arnold v. Arnold, 17 Pick. 7; Davis v. Spooner, 7 id. 147.
    Mr. H. B. Nortrtjp, and Mr. John W. Pitman, for the .defendant in error:
    • Upon the issue of nul tiel record, in the absence of a bill of exceptions, it will be presumed the evidence sustained the finding of the court. Dean v. German, 44 Ill. 286; Hough v. Baldwin, 16 id. 293; Trustees v. Leffler, 23 id. 90; Wooley v. Fry, 30 id. 158; Rev. Stat. chap. 110, sec. 90.
    The Appellate Court having jurisdiction of both person and subject matter, its judgment of affirmance, however erroneous, is conclusive, and can be avoided only by appeal or writ of. error. Weiner v. Heintz, 17 Ill. 259; Wimberly v. Hunt, 33 id. 166; Wight v. Wallbaum, 39 id. 555; Elston v. Chicago, 40 id. 514; Huls v. Buntin, 47 id. 396.
    Error determined on appeal will not be again considered on writ of error, (Smith v. Wright, 71 Ill. 167,) or on second appeal. Hough v. Harvey, 84 Ill. 308; Johnson v. Von Kettler, 84 id. 315; Ward v. Johnson, 5 Bradw. 30; Ogle v. Turpin,
      8 id. 543; Nispel v. Laparle, 74 Ill. 306; Freeman on Judgments, sees. 249, 250, et seq.; 6 Wait’s Actions and Defences, 768, sec. 3.
    The judgment of the Appellate Court, on the appeal, embraced not only all that it did determine, but every other matter involved, and which might have been determined by it. Rogers v. Higgins, 57 Ill. 247; Howell v. Goodrich, 69 id. 556; Kelly v. Donlin, 70 id. 385; Stockton v. Ford, 1 Blackf. 360; 18 How. 418; Danaher v. Prentiss, 22 Wis. 316.
    A rehearing was the only remedy for plaintiff in error,—the only way the court could affect the judgments pleaded. Rising v. Carr, 70 Ill. 596; Hollister v. Abbott, 11 Foster, 448.
   Mr. Justice Soott

delivered the opinion of the Court:

A writ of error was sued out from the Appellate Court for the Third District, to reverse a judgment which Maria Peterson had, at the November term, 1883, of the circuit court of Mason county, recovered against the Wabash, St. Louis and Pacific Bailway Company. The writ was made returnable to the November term, 1884, of the Appellate Court. At that term .of court defendant in error appeared and pleaded a plea in bar of the writ. After the formal beginning the plea continued : “On November 9, 1883, plaintiff in error prosecuted an appeal to this court from the identical judgment of the court below, mentioned in the proceedings in this case, and assigned on the record the same errors assigned in this case ; and said appeal, upon the errors therein assigned, came on to be heard in this court at the May term, 1884, * *' * and such proceedings were had on said appeal that on the 3d day of July, 1884, it was considered by this court that neither in said record and proceedings, nor in the rendition of said decision of the court below, was there any error, and that said judgment be affirmed notwithstanding the matters therein assigned for error, and that said appellee therein recover of appellant therein, costs, as by the record in said appeal case ■will now appear, which said judgment of this court is in full force, and not reversed. All of which defendant is ready to verify. ” A demurrer interposed to this plea was by the court overruled. Afterwards plaintiff in error replied, first, nul tiel record; and second, by four special replications, in which, in substance, it was averred that the merits of the controversy between the parties were not heard and determined by the Appellate Court, on the appeal, on account of the misprision, omission and default of the clerk of the circuit court, in this, that in making up the transcript of the proceedings had in the circuit court, to be submitted to the Appellate Court, such clerk failed and omitted to transcribe the bill of exceptions, which was a part of the record, into the transcript made, by reason whereof the record of the proceedings now presented to the court was not before the Appellate Court, and that such court could not and did not, on such appeal, decide upon and determine the errors herein assigned.

There was no error in the decision of the Appellate Court in overruling the demurrer to the pleas filed by defendant in error in that court. Conceding the facts alleged in the plea to be true, as the demurrer admits them to be, they constitute a complete bar to the present suit. Nor was there any error in sustaining the demurrer to the four special replications. The matters alleged can not be proved as an answer to the plea of defendant in error. It has often been decided by this court, that whatever has been decided on one writ of error can not be reexamined on a subsequent writ of error brought on the same record. Other courts' have declared the same doctrine. (Chaffin v. Taylor, 116 U. S. 567.) Conceding it to be true, as alleged in the plea, the identical errors assigned on the record in this suit were assigned on the same record on a former appeal, and the judgment was then affirmed in all things, notwithstanding the - errors then assigned, it is obvious that decision is res judicata, and the same errors can not be reexamined in this suit. It can not be shown by oral testimony the court did not determine the ease on its merits, when it appears from the record of its judgment the court did so determine the case. It is but stating a doctrine well understood, that the record of a court can never be contradicted, varied or explained by evidence beyond or outside of the record itself. A contrary rule might be disastrous in its results. A record imports verity, and the rule is, it must be tried and construed by itself. (Harris v. Lester, 80 Ill. 307.) All that these replications contained that was proper to be proved on the trial, could be given in evidence under the replication of nul tiel record.

Issue having been joined on the replication of nul tiel record, the cause was submitted to the court for trial, and the court found the issue “for defendant in error, and that plaintiff in error be barred of its suit,” and rendered final judgment against plaintiff in error for costs, and awarded execution for the collection of the same. Nothing appears in this record to show what evidence was introduced in the Appellate Court on the issue formed, and it will be presumed, in favor of the action of the court, the evidence that was introduced warranted it in finding the issues for defendant in error, as was done.

Indulging, as the rule is, every reasonable presumption in favor of the regularity of the proceedings in the Appellate Court, where nothing to the contrary appears, the judgment of that court will be affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    James L. Regan v. James J. West.

      Filed at Ottawa January 25, 1886.

    1. Decree—of its sufficiency as establishing the fee in land in certain heirs, and in determining who were the heirs entitled thereto. On bill to divest and pass the legal title of the heirs of a deceased testator, to enable a trustee to execute a trust created by the will in respect to the property, the decree found that the testator died seized of certain lands in this State, and that at his death the legal title thereto became and was vested in one of the complainants and the said defendants, naming them, as the only surviving heirs of the deceased: Held, that this finding was amply sufficient to establish the fact that the fee of the lands passed to the heirs named, and that they were the only heirs of the deceased.
    2. Same—appointing trustee without requiring bond—whether the decree void on that account. A decree appointing a trastee in place of one named in a will, to carry out the provisions of the will, he having also been appointed in another State, and given bond there, is not invalid if it fails also to require’ bond from the trustee here, and his acts in discharging the trust will not thereby be rendered void.
    3. Parties—to bill to appoint a new trustee. As a general rule, on a bill for the appointment of a new trustee to execute a trust, all persons beneficially interested should be made parties. But where a trustee has been appointed by the court of another State, and the main purpose of a bill is to compel the heirs of a deceased testator to convey lands of the testator in this State to the trustee, to enable him to carry out the provisions of the testator’s will, it will not be necessary to make the legatees named in the will parties, as their interests are not sought to be affected. In such case the heirs holding the legal title are the only necessary parties.
    4. A testator provided by his will that a trustee therein named, to whom he devised his estate, should pay the net income of certain real and personal estate to S. and H., and upon the death of either, then to the survivor for life, and upon his death the trustee pay certain legacies, and the will then provided that all the residue of the trust estate should go, one-fourth part to the heirs at law of S., etc. The trustee declined to act, and the court of the State where the testator’s will was probated, appointed a successor to the trustee named, who, with others, filed a bill- in this State to procure a conveyance from the testator’s heirs of his land situate here, in which S. and all the other heirs of the testator were made parties, and a decree against them was obtained vesting their title in a new trustee: Held, that it was not necessary to have made the unknown heirs of S. parties to the bill.

      Appeal from the Circuit Court of Cook county; the Hon. H^nry M. Shepard, Judge, presiding.
    Messrs. Quigg & Tuthill, and Mr. Cyrus Bentley, for the appellant:
    The decree in Fitz v. Sanborn does not show that all the heirs of Stephen Hoyt were made parties, and if all were not, the legal estate never descended to Fitz, and is not now in appellee. The legatees under the will of Stephen Hoyt not having been made parties to that suit, still have a lien upon the property for their legacies. In suits for the appointment of a new trustee, all persons beneficially interested must be made parties. Hill on Trustees, 195; In re VanWyck, 1 Barb. Ch. 565; Abbott's Petition, 55 Me. 580; Hall v. Irwin, 2 Gilm. 176; Turner v. Maule, 5 Eng. L. & Eq. 222.
    The decree in that case is liable to be reversed for error in not requiring bond, with security, from the trustee appointed.
    Messrs. Ritchie, Esher & Judd, for the appellee:
    The bill in this case avers that all the heirs of Stephen Hoyt were made parties to the bill in Fitz v. Sanborn, and duly summoned. The demurrer admits the truth of the averment. The decree will bind all the parties, even if the decree fails to show they were the heirs.
    The appellant objects that the legatees under the will of Stephen Hoyt, and the unknown heirs at law of Stephen Hoyt Sargent, should have been made parties to the bill for the appointment of the trustee. With regard to the “heirs at law” of Stephen Hoyt Sargent, we regard the following authorities as conclusive to the effect that the presence of Stephen Hoyt Sargent, the life tenant, and of Moses Sargent, Jr., Franklin S. Sargent and Mary Sargent Heywood, whose interests (according to appellant’s contention) are identical with those of the unknown heirs at law of Stephen Hoyt Sargent, was sufficient to make unnecessary the presence of such unknown heirs: Finch v. Finch, 2 Ves. Sr. 491; Baylor v. Dejarnett, 13 Gratt. 168; Gifford v. Hart, 1 Sch. & Lef. 408; Hopkins v. Hopkins, 1 Atk. 590; Cholmondely v. Clinton, 2 Jac. & W. 133; Lorillard v. Costar, 5 Paige, 215; Faulkner v. Davis, 18 Gratt. 651; Mead v. Mitchell, 17 N. Y. 210; Clark v. Cordis, 4 Allen, 475; Freeman v. Freeman, 9 Heisk. 301; Chism v. Keith, 1 Hun, 589; Fowler v. James, 1 Phillips’ Ch. 803; Story’s Eq. Pl. secs. 144, 145, 792; Tyler’s Mitf. Pl. 24, 265; Sohier v. Williams, 1 Curtis, 493; Green v. Borland, 4 Metc. 332; Bradstreet v. Butterfield, 129 Mass. 339; Gaskell v. Gaskell, 6 Sim. 643; Nodine v. Greenfield, 7 Paige, 544; Leonard v. Lord Sussex, 2 Vern. 527; Allen v. Papenheim, 1 Ves. Sr. 163.
    The failure to require bond of the new trustee appointed, is not fatal to a sale and conveyance of the trust property by him. Bradstreet v. Butterfield, 129 Mass. 342.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by James J. West, against James L. Began, to compel the specific performance of a contract in writing, executed by Began, under which he agreed to purchase from the complainant certain property in Chicago. The contract was set out in hcec verba in the bill, and it is therein stipulated that the complainant owned a fee simple' title to the property, and it was alleged in the bill that the complainant was seized of an absolute fee simple title to the property which he had offered to convey to the defendant. The complainant in his bill also sets out in detail the chain of title held by him. The defendant interposed a demurrer to the bill, ■ which the court overruled, and the defendant electing to abide by the demurrer, a decree was rendered in favor of the complainant, as prayed for in the bill.

. The property in controversy was formerly owned by Stephen Hoyt, of Salem, Massachusetts, and he died testate April 25, 1878, seized in fee simple of the premises. The property was devised to a trustee for certain purposes in the will declared. Frothingham, named as trustee, declined to act, and George F. Flint was appointed, under the law of Massachusetts, in his place. Flint, after being appointed, died, and one Andrew Fitz was appointed by the court in his stead.. Fitz, supposing that' he had power to sell and convey real estate, sold the property here involved, to appellee, West. After the purchase, West, entertaining doubts in regard to a title Fitz might make, declined to pay for the property, and Fitz filed a bill in equity for a specific performance of the contract. That cause came before us at the March term, 1884, and after a careful consideration of all the provisions of the will of Stephen Hoyt, it was held that upon the death of Hoyt the title to the land devolved upon his heirs at law, subject to the trust* Had Frothingham, the trustee, accepted the trust, upon such acceptance the title to the land would have passed from Hoyt’s heirs to the trustee, and would have related back to the time of Hoyt’s death, but .as the latter declined to accept the trust, the title continued in the heirs; that Fitz did not, by virtue of his appointment as trustee, become invested with the legal title; that he could only acquire the legal title by invoking the aid of a court of equity. (West v. Fitz, 109 Ill. 427.) That case settled the question of title, and all that was required of Fitz was to file his bill in the courts of this State and obtain a decree requiring the heirs to convey the legal title to him.

A bill was filed in the circuit court of Cook county, and a decree was rendered requiring the heirs to convey. The heirs failing to make a deed, the master in chancery, under the power contained in the decree, executed and delivered to Fitz a deed conveying the title to the property to him. After Fitz had thus obtained the title, he sold to appellee, West, and this is the title to the property which West sold to appellant, Began. In the decision of the question whether West has a good and valid title to the property, it will not be necessary to go back of the decision of West v. Fitz, where it was held that the legal title was in the heirs of Stephen Hoyt, deceased, and that Fitz, under a proper proceeding in equity, in the courts of this State, might acquire the title to the property as trustee. The only question to be determined here is, whether Fitz acquired title under the decree in the proceedings in the circuit court of Cook county. Appellant has made various objections to these proceedings, none of which, in our judgment, are well taken.

The first objection urged against the validity of the proceedings in Fitz et al. v. Sanborn et al., is, that it does not appear from the decree that all the heirs of Stephen Hoyt were made parties to that proceeding, and if all the heirs were not made parties, the legal estate has never passed to Fitz, and hence is not now in appellee. The decree finds that Stephen Hoyt died testate, seized in fee simple of the lots in question. The decree also finds that on the death of Stephen Hoyt, the entire fee of the lands situated in the county of Cook became and now is vested in the complainant, Stephen Hoyt Sargent, and the said defendants, Franklin S. Sanborn, Mary S. Heywood, Moses Sargent, Jr., and Franklin S. Sargent, as the only surviving .heirs and representatives of all of the deceased heirs of Stephen Hoyt. We regard this finding in the decree amply sufficient to establish the fact that the fee of the lands passed to certain named persons, and that those persons who were made parties to the bill were the only heirs at law of Stephen Hoyt, deceased.

It is also claimed that the decree is not valid because the legatees under the will, and the heirs of Stephen Hoyt Sargent, were not made parties. It is perhaps true, as a general rule, in a proceeding for the appointment of a new trustee, as laid down by Hill in his work on Trustees, page 195, that all persons beneficially interested should be made parties to the proceeding. But the case of Fitz et al. v. Sanborn et al. was not a proceeding of that character. It will be borne in mind that Fitz had been appointed trustee by the probate court of Essex county,, Massachusetts, and had given bond as such, and had entered upon the discharge of hie duties, and was in the discharge of the duties of trustee when the bill was filed. Now, while it is true the decree in the case appoints Fitz trustee as to the property in Illinois, still the main purpose of the bill was to compel the heirs of Stephen Hoyt, deceased, who had the legal title to the property in controversy, to convey the same to a trustee, in order that such trustee might carry out the provisions of the will, which had named a trustee and clothed him with certain specified powers. Under such circumstances we fail to see any reason why the legatees should be made parties. They had no interest to guard or protect, and no necessity existed which required that they should be made parties to the bill. Had the proceeding been one to remove a trustee and appoint a new one, and adjust the accounts of the trustee, then the legatees might have been interested, and proper parties to the proceeding.

We now come to the second branch of the question,— whether it was necessary to make the heirs or unknown heirs of Stephen Hoyt Sargent parties to the bill.

It is provided in the will of Stephen Hoyt that the trustee named in the will shall pay the net income of certain real and personal property to Stephen Hoyt Sargent and Abbie Hoyt Sanborn, and upon the death of either, the whole income shall be paid to the survivor until his or her death. At the death of the last survivor, the trustee is directed to pay certain legacies to certain named persons. Then follows this provision: “All the residue and remainder of the trust estate I give and devise, one-quarter part to the heirs at law of Stephen Hoyt Sargent, and one-quarter part each to my nephews and nieces, Moses Sargent, Jr., of Belmont, of the State of New Hampshire, Franklin S. Sargent, of said Belmont, and Mary Sargent Heywood, wife of 'H. 0. Heywood, of Lake Village, New Hampshire. ” Stephen Hoyt Sargent is living, and was a co-complainant with Fitz in the bill, and Moses Sargent, Jr., Franklin S. Sargent, and Mary Sargent Heywood, were defendants with the heirs of Stephen Hoyt, deceased, to the bill. But it is insisted that the unknown heirs of Stephen Hoyt Sargent were necessary parties to the bill. Stephen Hoyt Sargent, being alive, had no heirs, known . or unknown. It was therefore impossible to make such persons parties to the bill. The object of the bill was merely to transfer the" legal title t'o the real estate in question from the heirs at law of Stephen Hoyt to the trustee who had been appointed to carry out the provisions of the will. What interest persons not in esse had in such a proceeding, or what rights pertaining to them could be saved or protected by making them parties, is not quite apparent. As before observed, Stephen Hoyt Sargent, the life tenant, was a party to the bill. So, also, Moses Sargent, Jr., Franklin S. Sargent, and Mary Sargent Heywood, whose interests seem to be identical with that of the “unknown heirs” of- Stephen Hoyt Sargent, were parties to the bill, and, as we understand the authorities, this was all that was required. Finch v. Finch, 2 Ves. Sr. 491; Hopkins v. Hopkins, 1 Atk. 590; Lorillard v. Costar, 5 Paige, 215 ; Mead v. Mitchell, 17 N. Y. 210; Clark v. Cordis, 4 Allen, 475; Story’s Eq, Pl. sec. 144.

The validity of the decree is also objected to, for the reason that the court failed -to require Fitz, the trustee, to give bond, with security, before entering upon the discharge of his duties as trustee. It appears that Fitz had given ample bond in Massachusetts, where he had been appointed by the probate court, and the circuit court doubtless regarded this as sufficient, without requiring a new bond here; but however that may be, the failure to require a bond did not affect the validity of the decree, so far as the title to the property involved is concerned. A similar question arose in Bradstreet v. But terfield, 129 Mass. 342, and it was held that a failure to'give bond did not invalidate a title made by the trustee.

Under the averments of the bill, which were admitted to be true by the demurrer, we think the appellee held the title to the premises. The decree of the circuit court will therefore be affirmed.

Decree affirmed.


author: Mr. Chief Justice Mulkey

text:
    Henry C. Durand et al. v. George C. Lord.

      Filed at Ottawa January 25, 1886.

      1. Lis pendens—diligence required in the prosecution of the suit— limitations to.the doctrine—and effect of fraud and delay, in its application. The doctrine of Us pendens is founded upon public convenience and necessity, but has its limitations, which are essential to the proper administration of justice. When sought to be enforced against a bona fide purchaser without notice in fact, it is regarded as a hard rule of law, and will not be enforced unless the party invoking it brings himself clearly within it.
    2. The principal limitation upon the doctrine of lis pendens is, that there must be a continuous prosecution of the suit,—that is, the suit must be kept upon the docket, and there should be no such delays in taking the ordinary steps in bringing it to a final hearing as to lead the opposite party or the community at large to suppose the suit has been abandoned. More especially one will not be heard to invoke the doctrine who has deliberately made false representations to his adversary for the purpose of throwing him off his guard, and surreptitiously obtaining a decree against him, when there is reason to suppose his adversary might, and otherwise would, have successfully resisted the decree.
    3. What is an unreasonable delay in the prosecution of a suit, under some circumstances, so as to defeat or destroy a lis pendens, may not be under others. So where there was a delay of four years between the date of a reversal of a decree and the filing of the mandate in the court below, and the complainant’s counsel gave the defendants to understand that the suit, so far as it sought to affect the title to certain real estate, was abandoned, but took a decree that was not expected, and which might have' been successfully resisted but for such assurance, it was held, inequitable to apply the doctrine of lis pendens.

      Writ of Error to the Circuit Court of Cook county; the Hon. William H. Barnum, Judge, presiding.
    Mr.. H. O. McDaid, and Mr. Marvin Blanchard, for the plaintiffs in error:
    The defendant in error acquired his claim to the property in question pendente lite, and the decree granting him relief was erroneous. The decree of 1875 is conclusive on Garrison and all persons claiming under him. Jackson v. Warren, 32 Ill. 331; Dickson v. Todd, 43 id. 504; Gould v. Hendrickson, 96 id. 601.
    The defendant in error and those through whom he claims were bound to know, as a matter of law, that the cause involving the title to this lot had been pending on an appeal, and had been reversed and remanded. Reaugh v. McConnel, 36 Ill. 373; Haywood v. Collins, 60 id. 340; Murray v. Whittaker, 17 id. 230.
    The cause relating to this lot was continuously pending from 1861 until the final decree in 1875, and defendant in error could not limit or vary the complainant’s rights by purchase in 1871. Hopkins v. McLaren, 4 Cow. 678; Tilton v. Cofield, 93 U. S. 163.

      Lis pendens defined: Bouvier’s Law Die. 76; Rapalje and Lawrence’s Law Die. 765; Beames’ Orders in Chancery, 7; 4 Cow. 678; 1 Vern. Ch. 318; Gould v. Hendrickson, 96 Ill. 599; Lewis v. Mew, 1 Strobh. Eq. 180; Green v. White, 7 Blackf. 242; Feigley v. Feigley, 7 Md. 563; Story’s Eq. Pl. sec. 351.
    On what principles it rests: Coke on Littleton, 344 b; Tilton v. Cofield, 93 U. S. 168; 1 Vern. 318; Belamy v. Sabine, 1 DeG. & J. 566; Bishop of Winchester v. Paine, 11 Ves. 194; French v. Loyal Co. 5 Leigh, 617; Newman v. Chapman, 2 Rand, 102.
    Decisions of this and other courts holding that a final decree is conclusive against a purchaser lis pendens: Gilman
      v. Hamilton, 16 Ill. 225; Debell v. Foxworthy’s Heirs, 9 B. Mon. 220; Madison's Heirs v. Hopkins, 12 id. 600; Bradley v. Luce, 99 Ill. 245; Loomis v. Riley, 24 id. 307; Hurd v. Case, 32 id. 48; Jackson v. Warren, 32 id. 340; Dixon v. Todd, 43 id. 507; Davis v. Life Ins. Co. 84 id. 510; Walker v. Douglas, 89 id. 427; Gould v. Hendrickson, 96 id. 600.
    Close and continuous prosecution defined: Ferrier v. Buzick, 6 Iowa, 258; Beames’ Orders in Chancery, 7; Barton’s Suit in Equity, 195; Hull v. Deatly’s Admr. 7 Bush, 690.
    The necessary delay of a chancery case does not defeat the application of Zis pendens. Murray v. Ballou, 1 Johns. Ch. 576; Watson v. Wilson, 2 Dana, 413; Gossom v. Donaldson, 18 B. Mon 237.
    Adjudged cases relating to diligent prosecution: Herrington v. McCollum, 73 Ill. 483; Watson v. Wilson, 2 Dana, 411; Ludlow v. Kidd, 3 Ohio, 541; Herrington v. Herrington, 27 Mo. 562; Clarkson v. Morgan, 6 B. Mon. 443; Trimble v. Boothby, 14 Ohio, 109; Gibler v. Trimble, 14 id. 323.
    The decree of August 4, 1875, is conclusive against a collateral attack, and is a perpetual bar against the claim of defendant in error. Wells v. Mason, 4 Scam. 000; Stookey v. Hughes, 18 Ill. 56; Matthias v. Cook, 31 id. 87; Magee v. Hutchinson, 2 Gilm. 270; Barnett v. Wolf, 70 id. 81; Harris v. Lester, 80 id. 314; Kelly v. Donlin, 70 id. 386.
    Mr. W. C. Goudy, and Messrs. Paddock & Alois, for the defendant in error:
    The circuit court had ample jurisdiction to render the decree removing the cloud from the complainant’s title. Brooks v. Kearns, 86 Ill. 550; Hardin v. Jones, id. 313; Hutchinson v. Howe, 100 id. 11; Gage v. Abbott, 99 id. 366; Morris v. Hoyle, 37 id. 153; Campbell v. McCahan, 41 id. 45; Haywood v. Collins, 60 id. 328; Mulvey v. Carpenter, 78 id. 580.
    The decree of August 4,1875, and the subsequent sale and deed to Durand, were all void as to Garrison for want of jurisdiction over him, such jurisdiction having been terminated by the dismissal order of April 8, 1873, and.the cause, so far as Garrison was concerned, never having thereafter been re-instated. Barber v. Kerzinger, 23 Ill. 346.
    The suit once dismissed could not thereafter be revived so as to affect Lord, without making him also a defendant. Herrington v. McCollum, 73 Ill. 483; Freeman on Judgments, sec. 203.
    If a suit in chancery is dismissed for any cause than on the merits, although no bar to a new suit, it can not affect a purchaser during the pendency of the first suit. Herrington v. McCollum, supra; Newman v. Chapman, 2 Rand, 93; Watson v. Wilson, 2 Dana, 408; Herrington v. Herrington, 27 Mo. 560.
    Still less could a purchaser after the dismissal and before the revival of the suit in such cases be affected. Price v. White, 1 Bailey’s Eq. 234; Blake v. Hayward, id. 208; Turner v. Crebill, 1 Ohio, 373.
    To affect one as a purchaser pendente lite, it is necessary that the holder of the legal title should have been impleaded before the purchase which is to be set aside. The.doctrine of constructive notice by lis pendens applies only to those who acquire an interest from a defendant. Miller v. Sherry, 2 Wall. 250; Scarlett v. Gorham, 28 Ill. 319.
    That notice of re-docketing is essential to give the court jurisdiction, see Mulvey v. Carpenter, 78 Ill. 581; Harris v. Lester, 80 id. 308; Hayward v. Collins, 60 id. 329; Tibbs v. Allen, 29 id. 535; Welsh v. Lewis, 31 id. 446; Mattoon v. Hinckley, 33 id. 209.
    But the facts show that the plaintiffs in error abandoned any claim to subject this lot to the payment of their judgment. Bacon v. Lawrence, 26 Ill. 54; Peoria County v. Gordon, 82 id. 438; Curtis v. Root, 28 id. 367.
    The complainants are estopped, because under all the circumstances they ought to have acted differently, and with greater diligence, if they had not intended to waive their alleged rights. Noble v. Chrisman, 88 Ill. 187.
   Mr. Chief Justice Mulkey

delivered the opinion of the Court:

On the 20th of December, 1877, the defendant in error, George C. Lord, filed in the circuit court of Cook county a bill in equity against the plaintiffs in error, Henry Durand and others, to quiet title to the west half of the east half of lot 7, block 117, school section addition to Chicago, known in the record as the “Adams street property. ”

The facts, as alleged in the bill and established by the proofs, are substantially as follows: William 0. Heacock, being the owner in fee of the property, by warranty deed bearing date April 5, 1858, for the expressed consideration of $3000, conveyed the same to Andrew Garrison, the wife of Heacock joining in the deed, and it was recorded on the 21st of the same month. By another deed, bearing date April 10, 1858, Heacock conveyed to Garrison the remainder of the real estate, in trust, for the payment of his debts, and also, at the same time, executed to him a general assignment for the benefit of his creditors. The present plaintiffs in error, on the 6th of June, 1860, obtained-a judgment against Heacock, in the Superior Court of Chicago, for $1300 and costs, and on the 24th of October following, they filed in the same court a creditors’ bill against Heacock, Garrison and others, to set aside the assignment and two deeds above mentioned, and to subject the property so conveyed and assigned to the payment of complainants’ judgment. It was charged in the bill that said conveyance by Heacock and wife, of the 5th of April, 1858, was without consideration, and was made to hinder and delay his creditors in the collection of their just debts, and that as to them it was null and void. The bill called for answers. under oath, and prayed that the above mentioned deeds and assignment be set aside as fraudulent and void, etc. The defendants Heacock and Garrison answered, jointly, under oath, claiming that the deed of April 5, 1858, was in consideration of $3000, paid by Garrison’s assuming the payment of a trust deed to Mr. Mulford, which was a lien thereon, and cancelling other indebtedness. It was positively averred, in their answer, that said deed was made in good faith, and without any intent to delay, hinder or defraud creditors. On the 10th April, 1861, the replication to this answer was withdrawn, and the cause was set down for a hearing on bill and answer. On January 7, 1863, a decree was entered in said cause setting aside the assignment, and deed of April 10, 1858, but not disturbing the deed of the 5th of April, conveying the Adams street property. On May 9, 1867, that decree, on the appeal of Heacock and Garrison, was reversed by this court, and the cause remanded to the Superior Court. There was nothing, however, in the judgment of reversal, affecting the deed to the Adams street property. See Heacock et al. v. Durand, et al. 42 Ill. 230.

After the assignment, and deed of April 10,1858, had been held fraudulent and void by this court, Garrison, acquiescing in the decision, re-conveyed to Heacock all the property then in his hands as assignee and as grantee under said last mentioned deed. On May 12, 1871, the mandate of this court was filed in the Superior Court, and the cause re-docketed. On June 17, 1871, the venue in the cause was changed to the circuit court of Cook county, and it is admitted that the record of the cause in the circuit court was consumed in the great fire of 1871. On February 1, 1873, said circuit court entered a general order requiring all chancery causes pending previous to the fire of October 9, 1871, to be re-docketed, and the bills or petitions, or copies thereof, to be restored, by the parties interested therein, to files of said court, on or before the first Monday of April following, and if not so restored within the time specified, said causes to be dismissed. On April 8, 1873, said court entered of record the following general order:

“Ordered, that all causes pending in this court, on the chancery side thereof, previous to the fire of October 8 and 9, 1871, and which have not been re-docketed, on motion of parties complainant or defendant, on or before this day, be dismissed at the costs of the complainant or complainants, for want of prosecution, without prejudice, and that each of the defendants have execution therefor. ”

Notwithstanding this order of dismissal, it appears that a stipulation entitled in the cause, bearing date June 24, 1873,-was signed by Hiram M. Chase, solicitor for complainants, and by Heacock, for himself, wherein it -was provided “that all papers filed in said cause which had not been destroyed by the great fire of October 9, 1871, be re-filed, and that said cause be re-docketed in this court, costs to abide the event; and if there should be any deficit of papers, the same might be supplied within reasonable time from the Supreme Court; in the meantime said cause to be re-docketed in said circuit court. ” On July 10, 1873, this stipulation was filed in the circuit court, and the court entered an order re-docketing the cause, as in the stipulation provided. On July 3, 1875, the court, on the application of Heacock, granted him leave to file a separate answer, to stand as to him in lieu of the joint answer theretofore filed by him and Garrison. This answer, in effect, admits the deed of 5th of April, 1858, to be fraudulent, and in that respect contradicts his former answer, though both answers are sworn to.

The cause was referred to the master, who, upon consideration of the evidence before him, found that the deed from Heacock and wife to Garrison, of the 5th of April, 1858, conveying the Adams street property, was made without consideration, and to hinder and delay the creditors of Heacock, and, as against complainants, was fraudulent and void. The master also reports, among other things, that on the 19th' of July, 1875, H. M. Chase, solicitor for complainants, and Andrew Garrison pro se, and as solicitor for the other defendants, appeared before him pursuant to notice, and consented to an adjournment to July 21, 1875, at the same place and hour, for the taking of testimony, and that Chase and Heacock both testified as witnesses for complainants. To the master’s report is attached a notice, dated July 17, 1875, signed by Chase, solicitor for complainants, and served on Andrew Garrison 'the same day, to the effect “that on Monday, July 19, 1875, he, the said Chase, would proceed to take testimony in the cause of Durand et al. v. Heacock et al., before Walter Butler, master in chancery, in pursuance of the order of reference in said cause. ” There was also another notice attached to the master’s report, dated July 22, signed and served in like manner, informing Garrison that the hearing before the master had been continued to July 23, 1875, etc.

On August 4, 1875, a decree was rendered in the cause, finding the deed from Heacock and wife to Garrison, for the property in dispute, was executed without consideration, and that the same was fraudulent and void as to complainants. In short, it finds all the material charges in the bill to be true, and directs Heacock to pay the Durand judgment within ten days, and in default thereof, orders the premises in controversy to be sold by the master in chancery, and that the proceeds be applied to the payment of said judgment, interest and costs, and that in case the property is not redeemed within the time provided by law, to execute a deed for the same to the purchaser.

On the 25th of September, 1875, the premises in question were sold by the master, under the decree, to the complainants for $2637.76, who received the usual certificate of purchase. The premises not having been redeemed, the complainants, on the 5th day of July, 1877, received from the master a deed therefor. Under the deed thus acquired, plaintiffs in error claim to have paramount title to the premises, and are threatening to enforce it as against the present complainant. The latter derives title through Heacock’s deed to Garrison, hearing date April 5, 1858, as heretofore stated. Garrison took possession of the property, under his purchase from Heacock, about the time it was made, in 1858, and continued in possession until the 15th of February, 1871, when he and his wife executed a deed of trust upon the property to Benjamin B. Gallup, as trustee, to secure a loan of $12000 obtained by Garrison from George C. Lord, the complainant, who is a resident of Boston, and had no actual knowledge of any claims or liens upon-the property except such as were paid off and discharged with proceeds of the loan. On March 4, 1874, the Gallup trust deed was foreclosed by trustee’s sale, and George C. Lord became the purchaser of the premises at the sum of $14,010, and received from the trustee a deed therefor, under which he has ever since had possession and now claims title.

In addition to the foregoing facts, which are all matters of record or are established by written documents, about which there is no dispute, it is also shown, by the testimony of Garrison, that at the time the case of Durand et al. v. Heacock et al. was re-docketed after its reversal in this court, “he had an understanding with Mr. Chase that in the event of, its being re-docketed, no claim was to be made upon him personally, or as assignee of Heacock, or as owner of the Adams street property; ” that upon being notified, as solicitor for the defendants, to appear before the master to take testimony, he called at the master’s office and informed him that Mr. M. Blanchard was acting as attorney for Heacock in the matter; that Chase had so told witness, and that he (witness) would call on Chase and see what he meant; that he did accordingly call on Chase for that purpose, when Chase repeated to him the assurances above mentioned; that in addition to this, Chase expressly stated that “all he wanted was to reach the property that witness had deeded back to Heacock, and which had been undisposed of by witness while he acted as assignee; ” that it was the undisposed of property mentioned in the assignment he was trying to reach, and nothing else; that he (Chase) knew Blanchard was attorney for Heacock, and that the service of notice on witness was mere matter of form, and that he would serve no more notices on him as solicitor; that he (Garrison) fully believed and relied on these statements; that he had no notice from Chase, or from any one else, before the entry of the decree, that it was the purpose to interfere with the Adams street property; that he ceased to act as solicitor for defendants in the suit about the time notice was served on him of re-docketing the case in the Superior Court; that witness never learned of the decree of the 4th of August, 1875, until in December, 1877, when he learned it for the first time from Mr. Peabody; that neither the assignment nor tlie deed of April 10, 1858, which was really a part of the assignment itself, contained the Adams street property; that the deed of the 5th of the month, which did contain it, had no connection with those instruments; that he paid Heacock for it $3000, etc.

In this summary of his testimony we do not pretend to give the language of the witness, but the substance of it, as we understand it. It is true that Heacock denies the most important statements made by Garrison, but the record before us places him in such a light as to greatly weaken, if not totally destroy, his credit. The conflicting and wholly irreconcilable statements contained in bis two sworn answers "respecting matters of controlling importance in the suit, find no satisfactory explanation, excuse, or even mitigation, in the record.

For the purposes of this case, therefore, we must assume that the testimony of Garrison is true, in so far as it is not impeached or overcome by evidence other than the testimony of Heacock. Accepting the statements of Garrison as true, there is but little room, if any, to doubt that after the deeision of this court holding the deed and voluntary assignment of April 10, 1858, void as against the Durand judgment, the subsequent prosecution of that case was through the connivance of Heacock, and that it was conducted by Chase, Durand’s attorney, in such a manner as to entirely mislead Garrison as to the real purpose for which it was being prosecuted, and as to Lord, it is not pretended that he knew anything about it. Outside of the partially false statements made by Chase to Garrison, for the purpose of throwing him off his guard, there is a variety of circumstances tending to show that the court, in rendering the decree, was unwittingly made an instrument in carrying into effect a dishonorable scheme and palpable fraud. But as we do not propose to place our decision upon this ground, we will not stop to comment more particularly on the fraudulent aspect of the case.

The general reference to the subject, in connection with the facts already stated, is, however, deemed important in its bearing upon the question, whether, at the time Lord’s interests attached, there was such a lis pendens of the suit as to charge him with notice of the rights of plaintiffs in error under the Durand judgment. If there was not, it is very clear his rights could not be affected by any steps that might thereafter be taken in the case, as he was not a party to it. Nor would the fact that Garrison may have consented to the proceedings, having such object in view, make any difference, for he would be just as pow'erless to affect Lord’s rights in that way as Durand and Heacock. The doctrine of lis pendens is founded upon public convenience and necessity. Under proper restrictions it is absolutely essential to the due and successful enforcement of the law in controversies respecting property capable of being transferred from one person to another. Yet this doctrine, like most all others, has its limitations, which are equally essential to the proper administration of justice. "Where the doctrine is sought to he enforced, as in the present ease, against a bona fide purchaser, without notice, in fact, it is regarded as a hard rule of law, and will not be enforced unless the party invoking it clearly brings himself within it. The principal limitation upon the doctrine is, that “there must be a continuous prosecution of the suit, ” —that is, the suit must be kept upon the docket, and there should be no such delays in taking the ordinary steps in bringing it to a final hearing as to lead the opposite party or the community at large to suppose the suit has been abandoned. More especially, one will not be heard to invoke this doctrine who has deliberately made false representations to his adversary, for the express, purpose of throwing him off his guard, and surreptitiously obtaining a decree against him, as was done in this case, especially when there is good reason to suppose his adversary might, and otherwise would, have successfully resisted the decree.

By what we have just said, we do not wish to be understood as intending, much less holding, that a lis pendens will be lost by reason of a destruction of the records of the court or an accidental dropping of a case from the docket, if, in such case, the record is restored or the cause re-docketed within a reasonable time. Every case of this kind necessarily depends largely upon its own circumstances. What would be an unreasonable delay in the prosecution of a suit under some circumstances, so as to defeat or destroy a Us pendens, might not be under others. In this case there was a delay of four years and two days between the date of reversal in this court and the filing of the mandate in the Superior Court. Now, what were the circumstances, so far as the property involved in this suit is concerned ? Is there anything in the record of the proceedings, after the original decree in the Superior Court and before the execution of the trust deed, to warrant the belief that plaintiffs in error intended to assert any further claim to the Adams street property? We think not. On the contrary, we are of opinion the record discloses the very strongest reasons for concluding that so far as that property was concerned, all claim to it had been abandoned. Where such is the case, in order to maintain a Us pendens the law requires a higher degree of diligence in the prosecution of the suit. It will be remembered, the cause in the Superior Court had been submitted on the sworn answer of Heacock and Garrison alone, which disclosed a complete defence to the bill, so far as the property in question is concerned. The Superior Court, on this answer, sustained the bill as to the property mentioned in the assignment and the deed accompanying it, but said nothing about the deed of the 5th of April or the property conveyed by it. By implication, this was a finding against the complainants as to that property. The complainants prosecuted no appeal from that decree, nor did they otherwise question it. After Heacock and Garrison had taken an appeal from it, they did not even so much as assign cross-errors questioning the action of the court in refusing to find for them as to the Adams street property. And thus stood the record for four years, without even so much as filing in the Superior Court a transcript of the rémanding order of this court.

Under these circumstances, we have no hesitancy in holding, as we do, that the .delay was unreasonable, and of such a character as to terminate the Us pendens. Freeman on Judgments, sec. 202; Herrington v. McCollum, 73 Ill. 476. Having reached this conclusion, it is unnecessary to notice the other questions discussed in the briefs.

The decree will be affirmed.

Decree affirmed.

Mr. Justice Scott, dissenting.