author: Mr. Justice Shope

text:
    Benjamin F. Shankland et al. v. George W. Shankland et al.

      Filed at Ottawa January 25, 1886.

    1. Decree—binding until reversed or impeached. A decree of the circuit court for the specific performance of a contract of sale, finding the land sold and directing its conveyance, in a case where the court has jurisdiction, so long as the same remains unreversed and not impeached or set aside, is binding and conclusive upon the parties to the suit, and its effect may be invoked by the parties to it and their privies in estate.
    2. Mistake—reforming master's deed made in pursuance of decree. "Where the master in chancery makes a conveyance in pursuance of a decree for the specific performance of a contract, settling the rights of the parties, the defendants in such decree can not, on bill filed for partition, have the master’s deed corrected for a mistake in the quantity of land conveyed, on cross-bill, which does not seek also to reform the original decree in regard to the same mistake.
    3. Allegations and decree—must correspond. A defendant in chancery can not, on cross-bill, have relief decreed him which is not in accordance with the frame and prayer of his bill.
    Appeal from the Circuit Court of Iroquois county; the Hon. Franklin Blades, Judge, presiding.
    Mr. George B. Joiner, for the appellants.
    Mr.. B. F. Shankland, and Messrs. Kay & Euans, for the appellees.
   Mr. Justice Shope

delivered the opinion of the Court:

This is an appeal from a decree of the circuit court of Iroquois county, sustaining a demurrer to and dismissing the cross-bill of appellants, filed in said court in a partition proceeding wherein appellees were complainants and appellants and others were defendants.

The facts may be summarily stated as follows: Appellees, heirs of Kendall Shankland, deceased, filed their bill for partition against the heirs of Julius C. Rose, appellant, and others, for the partition of the lands, among which was the north half and the north half of the south half of lot 2, of the north-west quarter of section 31, town 25 north, range 13 west, and stating that said Rose heirs claimed some interest in said north half of the south quarter of lot 2, and alleging that said Kendall Shankland obtained title thereto from Sylvester M. Rose, who derived title from and through A. L. Whitehall, master in chancery, by virtue of a decree of the circuit court of Iroquois county, in a proceeding wherein said Sylvester M. was complainant and the heirs of said Julius C. Rose were defendants, for specific performance. The Rose heirs appeared and answered the bill of said Shankland heirs, and also filed their cross-bill against said Shankland heirs, alleging that they are the heirs of said Julius C. Rose; that he departed this life February, 1877; that said Julius C., in his lifetime, being the owner of section 31, sold to said Sylvester M. said north half and twenty acres in the north end of the north half of the south half of lot 2; that at the time of said sale only twenty acres in said north half of the south half of lot 2 was measured off and delivered to said Sylvester M., said Julius C. and said heirs retaining possession of the overplus; that no deed was made by said Julius C. to said Sylvester M.; that in February, 1881, said Julius C. having departed this life, said Sylvester M. filed his bill in chancery against the other heirs of said Julius C. for the specific performance of said contract of sale, and for the conveyance of the north half of the south half of lot 2, as also the north half of lot 2, and obtained a decree of said court for the conveyance thereof, and A. L. Whitehall, master in chancery, was appointed to convey, who, in pursuance of said decree, conveyed said north half and north half of the south half of lot 2 to said Sylvester M. It is further stated that said Sylvester M. afterwards sold to Kendall Shankland said north half of lot 2, and twenty acres of the north half of the south half of lot 2, so measured off to him, and in the deed, by mistake, conveyed the whole of the north half of the south half of lot 2 to him, when he had only sold him the twenty acres, and showed the south line thereof to him, and he only bought and paid for twenty acres therein, at the rate of $40 per acre; that said north half of the south half of lot 2 really contains 30^^ acres, when, at the time of the contract between said Julius C. and Syl-vester M., and between said Sylvester M. and said Kendall Shankland, it was supposed to contain only twenty acres, and they did not discover their mistake in the quantity until within two months of the filing of their answers and cross-bill. Prayer that complainants be decreed to be owners in fee of the 10-r9^ acres on the south side of said north half of the south half of said lot 2, and for conveyance of the same to them. To this cross-hill a demurrer was interposed, which was sustained by the court, and the cross-bill dismissed. The case is brought here by complainants in the cross-bill, by appeal, and this ruling of the court assigned for error.

It is apparent that the decree of the circuit court of Iroquois county, in the chancery proceeding of Sylvester M. Rose against the heirs of Julius C. Rose, deceased, remains unreversed and in nowise vacated or set aside. The cross-bill does not seek, either by apt averments in the charging part of the bill, or in the prayer, to modify, vacate or reform that decree, but proceeds upon the basis that it was- supposed, at the time of the purchase from Julius G. by Sylvester M., and during all the successive stages until about the time of filing the cross-bill, that there was in fact only twenty acres included in the description north half of the south half of lot 2, when in fact there were 30T9a^- acres, and seeks to correct the mistake alleged to have been made in the conveyance by the master in chancery under that decree, without in any manner modifying or reforming the decree under which it was made. This we are of opinion can not be done. The bill of Sylvester M. filed against the heirs of said Julius C. Bose, sought specific performance of a contract to convey the north half of the south half of lot 2. The court had jurisdiction of the persons of appellants and of the subject matter of that suit, and by its decree found Sylvester M., under his contract, entitled to a conveyance of the north half of the south half of said lot’, and ordered a conveyance thereof accordingly. The deed of the master, made in pursuance of said decree, conveyed the title of all the heirs of said Julius C. to said Sylvester M., and so long as the same remains unreversed and not impeached or set aside, is binding and conclusive upon the parties to said suit, and the effect of said decree may he invoked by the parties to it, and their privies in estate. We are of opinion, therefore, that the demurrer was properly sustained.

What may be the rights of Sylvester M. under a bill brought in his own behalf, or what relief might be granted the heirs of Julius C. Bose, deceased, upon a bill framed for and praying the correction of the decree referred to, is not before us. This cross-bill seeks neither of these ends, and the familiarity of the rule that recovery must be had, if at all, in accordance with the allegations and prayer of the bill, will preclude the necessity of citation of authorities.

The decree of the circuit court will be affirmed.

Decree affirmed.-


source: Caselaw Access Project

author: Mr. Justice Tunhicliee

license: Public Domain

text:
    Joel B. Fordyce et al. v. Solomon H. Shriver et al.

      Filed at Ottawa January 25, 1886.

    1. Pabtnebship—liability of one for acts of another, inter se. A partnership firm was formed whereby A and B were to constitute one member thereof, O and D another, and E, E and G the third member, each member-thus constituted agreeing to put in one-third of the capital stock and to share alike in all losses and profits, and E, one of the third party, was by mutual consent of all made superintendent of the business and given the management and control of the partnership affairs, and heavy losses were sustained by the mismanagement of E. It was held, on bill to wind up the partnership affairs, that E, F and G were not liable jointly to the other members of the firm for the negligence and mismanagement of E, but that E alone was liable to them.
    2. Same—partner’s liability to firm for loss on purchase for which he is not responsible. Where a firm composed of several members engages in business carried on by one of their number as superintendent, and the firm purchases an old stock of goods at an over-valuation, in consequence of which a loss is incurred, the superintendent will not be required to account to the other members of the firm for such loss when he is not responsible for such purchase.
    - 3. Chanceby—bill for partnership account—relief against one partner for individual liability. Under an ordinary bill for a partnership accounting and to place the firm assets in the hands of a receiver, on reference to the master to state the account he can not charge a portion of the firm for losses to the firm by the wrongful acts or mismanagement of its affairs by the partner having control thereof.
    4. Same—answer when taken as true. Where a case is submitted for hearing on bill and answer, the latter is to be taken as true.
    5. Same—master’s duty on reference to state account. Where a bill for the settlement of partnership accounts is referred to the master in chancery to state the account and report the evidence, it' is not his duty to report his conclusions or determine the liability of any of the parties upon collateral matters not raised by the issues.
    Wbit of Ebbob to the Appellate Court for the Second District ;—heard in that court on writ of error to the Circuit Court of Livingston county; the Hon. Fbanklin Blades, Judge, presiding.

      The plaintiffs in error and defendants in error formed a co-partnership about the first of September, 1873, for the . purpose of carrying on the mercantile business at Cornell, in Livingston county, in this State, and evidenced the same by a written article, which is as follows:

      “September 1, 1873.

    “Articles of agreement for co-partnership entered into and agreed upon this day first written, between J. B. Fordyce, John G. Fordyce, of the first part, and J. L. Garrison, all of Greene county, Pennsylvania, and M. J. Garrison, of Monongalia county, West Virginia, of the second part, A. J. Santee, I. B. 'Santee and S. H. Shriver, of Monongalia county, West Virginia, of the third part: On the following conditions they hereby associate themselves together for the purpose of transacting a general dry goods and grocery and produce business in the town of Cornell, Livingston county, Illinois, under the style and firm of I. B. Santee & Co., the said partnership to continue for the term of three (3) years from the first day of September, 1873, unless sooner dissolved by mutual consent of the parties, each of the parties agreeing to put an equal sum into the concern and let it remain therein until the expiration of the above term mentioned. It is further agreed that any of the parties buying goods of the store shall pay for them the usual selling price. They also agree that all losses incurred in the transaction of the business of the firm shall be borne, share and share alike, by each member of the firm, and all the profits shall be divided in like manner by each member of the firm. (It is understood to be each of the three parties that constitute the firm.) It is further understood that the books, notes, papers and debts of the firm shall be at all times'open and subject to the inspection of each member of the firm, and no member of the firm shall be at liberty to engage in the business of merchandising, either by himself or in company with others, where it will in any way interfere with the business at the first named place, during the existence of this co-partnership. It is understood and agreed that the stock of goods recently bought by S. H. Shriver and J. B. Fordyce, from Hastings, Fordyce & Coe, as well as the^gpods bought by Fordyce, Shriver & Co. in Chicago, is part of the stock of this firm, and have been put into the same. And it is further agreed that no individual member of this firm shall use the name of the same for any other than the legitimate purpose of the same,—that is, for transacting the business of the said firm. It is further understood that if any of the members of this firm desire to withdraw from the same before the expiration of the above named term, he shall take a private share of all the goods and debts that may be on hand at the time, or sell out, as the case may be, (the firm having the refusal at the selling price.) It is also understood that at the expiration of the said term each party shall take a share of the goods and debts in like manner. It is further agreed by the parties that no money belonging to the firm, or employed by the firm in the transaction of the business, shall be used or drawn out by any member of the said firm without the consent of said firm. It is further agreed that the agricultural implements of all kinds that were bought by S. H. Shriver,, J. B. Fordyce, of Hastings, Fordyce & Coe, are a part of the merchandise of the said firm. Also houses and lots bought at the- same time.
    “As witness our hands and seals:
    J. B. Fordyce, [seal.]
    John Gf. Fordyce, [seal.]
    J. L. Garrison, [seal.]
    M. J. Garrison, .[seal.]
    S. H..Shriver, [seal.]
    A. J. Santee, [seal.]
    I. B. Santee. [seal.] ”
    In April, 1877, they made an additional agreement, by • which the name of the firm was changed, but not the terms of the partnership. It was also in writing, signed by the parties, and reads thus:
    “Cornell, Livingston County, III., April 28, 1877.

    “By consent of all the parties to the within articles: Whereas the within named parties entered into co-partnership on or about September 1, 1873, under the firm name of I. B. Santee & Co., for the term of three years, the parties to this agreement agree to change the name of said firm to the firm name of Gerard Fordyce & Co. They further agree to pay all debts and liabilities of the firm of I. B. Santee & Co. The term of co-partnership under the firm name of Gerard Fordyce & Co. is extended to such time as the majority of the said parties to this agreement see proper, or think best to close the business of said firm. And it is further agreed by all the parties concerned, to turn over to the said Gerard Fordyce all the goods, merchandise, notes, papers, books, accounts, etc., and all matters concerning, either directly or indirectly, the late firm of I. B. Santee & Co., to have and to use for the legitimate purpose of said firm, as expressed in the within articles, as witness our hands and seals, day and date first written.
    Gerard Fordyce, [seal.]
    S. H. Shriver, [seal.]
    M. J. Garrison, [seal.]
    J. B. Fordyce, [seal.]
    A. J. Santee,
    J. L. Garrison.”
    On the 28th of May, 1877, the plaintiffs in error, Joel B. Fordyce, John G. Fordyce, James L. Garrison and Morris J. Garrison, exhibited their bill in the Livingston circuit court, against defendants in error, Solomon H. Shriver, A. Jackson Santee and Isaac B. Santee, praying for the appointment of a receiver, a dissolution of the partnership, an accounting, and that the affairs of the firm be closed. It sets forth the formation of the co-partnership, under the articles of agreement mentioned; that the two Fordyces furnished one-tliird of the capital, the two Garrisons one-third, and Shriver and A. J. Santee one third for themselves and I. B. Santee; that the firm purchased a store building and stock of goods at Cornell, and began at once the transaction of the business for which the firm was organized; “that said I. B. Santee had the general charge of the business, as the other members of the firm were not residents of the State of Illinois, and by mutual consent he was placed in charge of the business.” It states the assets of the firm to be about $13,850 and its indebtedness about $10,000; that the partership had expired by limitation; that I. B. Santee was still continuing the business ; that he had reported to the members of the firm that it had not lost anything up to January, 1877, and that after that, it appeared that the debts were about equal to the assets, leaving the entire capital of about $10,000 lost; charged him with having managed the business in a very reckless and unbusinesslike manner; that he kept his accounts loosely, and that his interest was apparently adverse to that of the firm; that he had executed notes in the firm name for other than firm indebtedness, and especially one note to S. EL Shriver, his uncle, of about $1800, for an old indebtedness of the firm, as claimed by him, but which did not appear on the books; that he had kept incorrect accounts of his personal dealings with the firm, and had failed to charge himself with money drawn by him, and had ordered debtors of the firm not to pay, and creditors to sue.
    The defendants in error filed their answer to the bill, admitting that they were partners with complainants under the said articles of agreement; that the business was carried on at Cornell, under the general superintendence of I. B. Santee, and that the partners have been unable to settle amicably. The answer denies any mismanagement by I. B. Santee, and alleges his management to have been careful, prudent and faithful; denies that he made any false report to other members of the firm, or that he executed firm notes for other than firm indebtedness, or kept incorrect accounts of his personal dealings with the firm, or failed to charge himself with money drawn by him. It admits that there are assets and debts of the firm, and that the business has been a losing one.
    There was no replication filed to this answer, and no evidence taken, so far as the record shows, till after the May term, 1877, at which term a decree was rendered, reciting that the cause came on for hearing upon the bill and answer, and proofs made in open court, and finding that the parties are partners under the articles of agreement; that the partnership has expired by limitation; that the parties are unable amicably to settle; that there are debts and assets of the firm, and decrees a dissolution of the co-partnership, and appoints a receiver with the usual power. The decree also appoints a special master “to take "the books of the firm and state an account between the partners, taking and reporting such evidence as may be offered, if any, by either of the parties to the suit, outside of the books.” The special master, after hearing the evidence, made his report, finding among other things the total loss of the firm to be $21,573.03, and in substance that this was caused by the mismanagement and inattention to business of I. B. Santee as general manager of the business, except as to $3055.85, arising from an overvaluation of an old stock of goods put into the concern by a part of the partners, thus reducing the loss to $18,517.18, and as I. B. Santee, with S. H. Shriver and A. J. Santee, jointly, composed the party of the third" part mentioned in the article of co-partnership, the master reported that Shriver and the two Santees should make good to the other partners their losses, and should be decreed to pay to the two Fordyces, jointly, one-third, and to the two Garrisons, jointly, one-third of the $18,517.18 loss. Both parties excepted to the master’s report, the complainants because the master found an over-valuation in the old goods, of .the $3055.85, and" defendants for various reasons, to all his findings, but they need not be noticed in detail. The master overruled the exceptions taken by each party. The court sustained him in overruling complainants’ exceptions, and disapproved of his not sustaining- the exceptions of defendants. Thereupon the court stated the account between the partners, showing a total loss of $12,039.46, as follows:
    Total capital invested .... $9,455.85
    Liabilities incurred and outstanding - - 14,779.62
    Total liabilities .... $24,235.47
    Loss in over-valuation of original stock, $3,055.85
    Assets in hands of receiver - - 9,140.16
    --12,196.01
    Loss taken into accounting - $12,039.46
    And the court decreed that the Fordyces should pay one-third of the indebtedness, the Garrisons one-third, and S. H. Shriver, A. J. and I. B. Santee one-third. It further found that I. B. Santee had been placed in charge of the business, and had conducted it in a grossly careless, reckless and negligent manner, and that said loss arose therefrom, and decreed him to pay the Fordj'ues their third thereof, to-wit, $4013.15, and the Garrisons the same, and to S. H. Shriver and A. J. Santee two-thirds of $4013.15, or $2675.44. The decree was affirmed by the Appellate Court for the Second District, on writ of error prosecuted by plaintiffs in error here.
    Messrs. Bull, Straws & Ruger, for the plaintiffs in error:
    The firm was composed of three parts or parties, the first consisting of J. B. and John G. Fordyce, "the second of J. L. and M. J. Garrison, and the third party of A. J. Santee, I. B. Santee and S. H. Shriver. If the firm had consisted of but three persons, A, B and C, then there would be no question that C would be liable to both A and B for losses sustained by his misconduct in violation of his duty as a partner. Can it make any difference if the third party, C, is composed of more than one person ?
    Generally the same rules which regulate the rights and duties of partners when the firm consists of individual -members only, will be equally applicable when the firm consists of several distinct firms, or partly of distinct firms and partly of individual members. Therefore, if A and B, as partners, engage in a speculation with C, A and B are, with reference to C, as one individual, consequently A is answerable to C in respect to the dealings of B in the joint speculation. Collyer on Partnership, sec. 200; Ault v. Goodrich, 4 Buss. 430. .
    Mr. James Morrow, Jr., for the defendants in error:

    The defendant I. B. Santee was not a member of the firm of I. B. Santee & Co., as 'between the partners themselves, and it is competent to make proof of that fact, and to show his true relation to the business of the firm, as between the partners, for the purpose of adjusting their liabilities inter sese, according to the very right and truth of the matter. Thompson v. First Nat. Bank of Toledo, 111 U. S. 536.
    In' order to charge a partner with liability for losses incurred by the partnership by reason of his mismanagement or carelessness or recklessness in the conduct of the partnership business, the particular acts or facts in which such mismanagement, etc., is alleged to consist, must be averred, and must be established by proof. And the mismanagement, carelessness,'etc., and the losses sustained, must be shown to sustain toward one another the relation of cause and effect. McCrae v. Robinson, 2 Murphy, 127; 2 Lindley on Partnership, 784; Carlin v. Donegan, 15 Kan. 495; Murphy v. Crafts, 13 La. Ann. 579; Walpole v. Renfroe, 16 id. 92; Smith v. Loring, 2 Ohio, 440; Pierce v. Daniels, 25 Vt. 624; Roberts v. Totten, 13 Ark. 609; Dexter v. Arnold, 3 Mason, 288; Story on Partnership, 269, 342; Lingard v. Bromley, 1 V. & B. 114; Cragg v. Ford, 1 Y. & C. 280; Jenkins v. Pickenpaugh, 40 Ind. 133.
    The loss must fall alone on the partner guilty of such breach of duty. 2 Bindley on Partnership, 783, 784, and cases sztpnt.
   Mr. Justice Tunhicliee

delivered the opinion of the Court:

It is insisted for plaintiffs in error that the court below erred in not sustaining their exceptions to the master’s report, —in other words, in deducting from the losses that part thereof arising from an over-valuation of the old stock of goods, of $3055.85, and in not decreeing that Shriver and A. J. Santee, jointly with I. B. Santee, as parties of the third part, to the agreement, should make good the losses of the Fordyces and Garrisons. It "is argued by their counsel that because Shriver and A. J. Santee and I. B. Santee agreed in the article to furnish one-third of the capital, and share one-third of the profits and losses jointly, therefore Shriver and A. J. Santee became, by implication, as matter of law, "liable for any losses the firm might sustain by reason of the business having been placed in charge of I. B. Santee, and by him recklessly and wrongfully managed, as they claim. We do not think such a conclusion properly drawn from their undertaking. All they agreed to do was to furnish, with I. B. Santee, one-third of the capital, and share with him one-third of the profits or losses. There is nothing in the article of agreement showing that it was agreed or understood that I. B. Santee was to have the charge or management of the business, much less that Shriver and A. J. Santee were the cause of his being made superintendent of it, or that they were to be responsible for his acts. The bill avers that I. B. Santee was placed in general charge of the business by the mutual consent of the other members of the firm, and J. B. Garrison testifies that he had a conversation with I. B. Santee, J. B. Fordyce, A. J. Santee, S. H. Shriver, and M. J. Garrison, upstairs in the store of M. J. Garrison, at Wadestown, West Virginia, and that it was agreed that I. B. Santee would become a member of the firm and conduct the business, and that he left the same day for Cornell,—August, 1873.

It is hardly probable that if there was any agreement or expectation that Shriver and A. J. Santee were to be responsible for the acts of I. B. Santee in conducting the business, no mention should be made of it in the written article or in any conversation relating to the business. We do not think a fair construction of the article of agreement warrants the holding that as a matter of law or fact they assumed or are liable for any such responsibility. Besides, the bill is not framed with a view of making Shriver and A. J. Santee accountable to the other partners for any losses the firm sustained by the wrongful acts or mismanagement of its affairs by I. B. Santee. There is no claim of that kind in the bill, and no prayer that they may be so charged in stating the account. Indeed, there are no specific allegations in the bill that the firm had sustained any losses by reason of his recklessness, mismanagement, or inattention to business. The general charge of negligence, carelessness, and the like, were made, we presume, with a view of showing that he was not a suitable person to be left in charge of the business, and as a reason why a receiver should be appointed. But even if these charges were sufficient, they are all denied in the answer, and to which no replication was filed. The answer admitted enough to authorize the appointment of a receiver, and for this reason probably no replication was deemed necessary, and that the ease could be submitted to the court on bill and answer, except as to stating the account, and that was referred to the master. When a case is submitted for hearing on bill and answer, the answer is to be taken as true. Such being the state of the record, and the case being referred to the master to state tlie account and report the evidence, it is not •required of him that he should report his conclusions or determine the liability of parties upon collateral matters not raised by the issues.

It. was not error for the court not to make I. B. Santee account for losses of the firm in purchasing an old stock of goods at an over-valuation, when he was not responsible for the- purchase. Whether there was error in the rendition of •the decree against I. B. Santee, is not directly before us as to him, as he has not appealed, prosecuted a writ of error, or assigned cross-errors upon the record. For the same reason we need not notice the observations of his counsel that he was not á partner in this firm. It is admitted, however, in his answer, that, he was, and that can not be controverted now. It is sufficient to say that there are no errors in this record of which plaintiffs in error can complain,g and the judgment of the Appellate Court is affirmed.

Judgment affirmed,.


author: Mr. Justice Scott

text:
    Elizabeth Boyer et al. v. Robert N. Thornburg et al.

      Filed at Ottawa January 25, 1886.

      Ejectment—plaintiff must recover on the strength of his own title. A plaintiff in ejectment must recover on the strength of Ms own title, and not on the weakness of the defendant’s. The title in any one other than the plaintiff will defeat a recovery.
    Writ of Error to the Circuit Court of Will county; the Hon. George W. Stiff, Judge, presiding.

      Messrs. Van Arman & Valette, and Mr. Henry Decker, for the plaintiffs in error:
    The acknowledgment,of Thornburg that he went into possession under Boyer, is sufficient to entitle .Boyer’s heirs to recover. Taylor on Landlord and Tenant, sec. 706; Bigelow on Estoppel, 376. .
    If the tenant acquires the superior title, he must surrender possession and bring his action of ejectment. The law will not allow him to take any advantage whatsoever by the possession acquired from his landlord. Washburn on Real Prop. 482, 399; Auking v. Pierce, Breese, 260; Furgeson v. Miles, 3 Gilm. 358; Tilghman v. Little,. 13 Ill. 241; Fusselman v. Worthington, 14 id. 135; Brown v. Keller, 32 id. 151; Carter v. Marshall, 72 id. 601; Doty v. Burdick, 83 id. 473.; Cox v. Cunningham, 77 id. 345; Hardin v. Forsyth, 99 id. 545; Taylor on Landlord and Tenant, (5th ed.) secs. 89, 92.
    Mr. G. D. A. Parks, and Mr. B. E. Barber, for the defendants in error:
    Thornburg was in possession of the premises long before Boyer acquired his claim, and never became the tenant of Boyer. It is claimed that Thornburg in his lifetime admitted his tenancy. Evidence of admissions shown after the death of the alleged speaker is received with great jealousy and caution, when they consist of loose, casual conversations not shown to have influenced the conduct of any one. This is especially so when such admissions are sought to be used to create or defeat titles to real estate. Ray v. Bell, 24 Ill. 452 ; Winslow v. Cooper, 104 id. 231; Bragg v. Geddes, 93 id. 60; Young v. Fouts, 43 id. 39; O’Reilly v. Fitzgerald, 40 id. 313; Ayers v. Metcalf, 39 id. 307; Frizell v. Cole, 29 id. 465; 1 Greenleaf on Evidence, secs. 200-204.
    An outstanding title was shown, which is a perfect defence to a plaintiff who has never been in possession. This rests upon the rule that the plaintiff must recover on the strength of his own title. Doty v. Burdick, 83 Ill. 473; Hulick v. Scoville, 4 Gilm. 172; Masterson v. Cheek, 23 Ill. 75; Stuart v. Dutton, 39 id. 95; Ballance v. Flood, 52 id. 52.
   Mr. Justice Scott

delivered the opinion of the Court:

This suit was brought by Elizabeth Boyer, Julius Boyer, Emma Cornean and Florence Paulson, in ejectment, against John Thornburg and Robert Thornburg, and was to recover a quarter section of land described by its numbers in the declaration. After the death of John Thornburg, his heirs at law, by leave of court, were made -defendants. Only the plea of not guilty was filed by defendants, and on the trial, without the intervention of a jury, the court found plaintiffs were the owners in fee of an undivided one-half of the quarter section, and rendered judgment in the usual form that they recover the same. As to the other undivided one-half, the court found defendants not guilty. Not being satisfied with the finding and judgment in their favor, plaintiffs entered a motion for a new trial, which was by the court overruled. An exception to the decision of the court was taken in the usual mode, and plaintiffs bring the case to this court on error.

A certified copy of a patent from the United States to James B. Lowry and Nathaniel A. Lowry, dated October 30, 1839, conveying to them the land in question, was admitted in evidence. Proof was made that Nathaniel A. Lowry was dead. Quitclaim deeds from his heirs were introduced in evidence, which slu^v the patent title to the undivided one-half of the quarter section was in plaintiffs at the time this suit was commenced. The other undivided one-half of the premises never came to them by any conveyances from James B. Lowry. It would seem to be, from the evidence, outstanding in one Charles M. Macubin. If this were all the evidence in the case it is quite clear plaintiffs could in no event recover more than the undivided one-half of the quarter section, as they dicl. It is a familiar principle that a plaintiff in ejectment must recover on the strength of his own title, and not on the weakness of his adversary. It is no matter whether the title is in defendants or not. If it is in any one other than the plaintiffs, that will defeat the recovery. It is apparent plaintiffs in this suit never had the patent title to more than one undivided half of the premises. The patent title to the other undivided one-half is still outstanding in some one else.

It is claimed, however, that Charles A. Boyer, to whose rights in the premises plaintiffs have succeeded, by inheritance, as his heirs at law, in his lifetime was the owner of the entire quarter section, and that John Thornburg, under whom defendants claim title, entered into possession under him, as tenant or otherwise, and are therefore estopped to deny his claim of title, whatever it may be, and must accordingly surrender their possession to plaintiffs. It is for that reason it is insisted the finding of the court was erroneous as to the other undivided one-half of the quarter section. The position taken is not fairly supported by the evidence. The testimony bearing on the question made has been examined, and it is thought it is so uncertain whether John Thornburg entered into the possession of the premises under Boyer, as tenant or otherwise, that the present judgment can not be disturbed. It is proved wdth reasonable certainty that John Thornburg entered into possession of the premises as early as 1860, or in 1861, and this suit was not brought until September 6, 1880. It seems probable if John Thorn-burg was a mere tenant of Boyer, the latter could, and no doubt would, have recovered the possession long years before his death, or else had some written contract as to 'the terms on which Thornburg should occupy the premises. Nothing of that kind was done, and no reason is perceived for being dissatisfied with the finding of the circuit court upon the evidence, and its judgment must be affirmed.

Judgment affirmed.


author: Mr. Chief Justice Mulkey

text:
    Thomas Tully et al. v. The Excelsior Iron Works.

      Filed at Ottawa January 25, 1886.

    1. Becoupment—for breach of warranty■—in suit for the price of the thing sold. In a suit by the seller of a machine for the contract price, the purchaser may recoup, under the general issue, any damages he may have sustained by reason of a breach of the warranty as to the quality and capability of the machine.
    2. Action—against whom it will lie—for work and materials—set-off. If A agrees with B to manufacture a machine for him, and procures 0 to furnish the materials and do the work, the latter can not maintain an action against B for the value of the work and materials, but must sue A. But if he sues B, B can not set off or recoup any damages he may sustain in consequence of a breach of guaranty made by A.
    3. Parties—non-joinder of plaintiffs. If the inventor of a machine undertakes, jointly with a manufacturer, to construct a machine for another, the manufacturer can not maintain an action in his own name alone, to recover the price of the purchaser. The non-joinder of the inventor as a co-plaintiff will be fatal.
    4. Instruction—must be based on evidence. An instruction based upon the assumed existence of a fact of which there is no evidence, is objectionable, and is properly refused.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Messrs. H. T. & L. Helm, for the appellants.
    Mr. A. A. Exline, for the appellee.
   Mr. Chief Justice Mulkey

delivered the opinion of the Court:

The Excelsior Iron Works, the appellee, recovered a judgment in the Superior Court of Cook county, against the appellants, Thomas Tully and John D. Tully, for $944.04, which was affirmed by the Appellate Court, and the case is certified, under the statute, to this court for review.

The recovery was had on account of certain machinery, consisting of shafts, pulleys, belting, etc., furnished by the plaintiff to the defendants, to be used by them in operating a machine known as “Cockell’s Clay Crusher and Stone Extractor, ” which they had lately bought from Harvey Cockell, the inventor. It appears that the Tullys and Cockell were all by occupation manufacturers of brick, and that the latter had invented and was the patentee of the above mentioned machine, which is indifferently called by the witnesses “the crusher,” “the pulverizer,” etc. This invention of Cockell was used in the manufacture of brick to pulverize the dirt and extract the gravel or stone therefrom preparatory to putting it in the brick machines. A few days before the 28th of March, 1883, negotiations were commenced between Cockell and Thomas Tully for the purchase by the latter of one of Cockell’s machines. It was wanted for one of Tully’s yards in which he was running four brick machines, it being the intention to supply them all with one pulverizer. Upon talking the matter over it was found that the four brick machines would require to run them per day from one hundred and eighty to two hundred yards of pulverized dirt. Cockell told Tully that he feared his machine did not have capacity to furnish that amount of dirt, but expressed the opinion he could make one with the necessary capacity by enlarging the dimensions of the machine. The size of the machines which he had been putting up was three feet in diameter, and the cost $800. It was finally determined that Cockell was to put up one of his machines four feet in diameter, which it was supposed would cost $1000 or $1100. The Tullys were to have it at cost, whatever that might be. When the negotiations were fully concluded, in pursuance of the understanding between them Cockell delivered to the Tullys the following guaranty, which was prepared by Thomas Tully:

“Chicago, III., March 28, 1888.
“Mr. Thomas Tully:
“Dear Sir—I hereby agree to make and erect one of my clay crushers and.stone extractors, which I hereby guarantee will crush clay and extract stone from clay sufficient to run your four brick machines, which is on your canal yard at present, and will have same in running order in twenty days from date.
Harvey • Cockell. ”

It further appears that Cockell was having his machines manufactured by the Excelsior Iron Works. At the instance of Cockell, Morand, the mechanical engineer and draughtsman of appellee, prepared plans and drawings for the machine, and it was put up in conformity therewith. The machine itself, when completed, had a pulley constructed on the top of it, and all that was necessary to operate it was to place a belt or band over it, connected with the shaft of the engine. This, of course, would have been a-very simple and inexpensive affair. When, however, the draughtsman came to draw the plans for connecting the machine with the motive power, it was found, upon consultation with Tully, a simple and direct connection could not be had without interfering with his system or plan of running the yard. To meet this difficulty, it was suggested it might be overcome by the construction and erection of a counter-shaft, with its necessary appendages. To this suggestion the draughtsman interposed, as he testifies, that Cockell, whom he was then representing, had nothing to do with the proposed counter-shafting and the additional machinery it would require. Tully, as is further testified, thereupon stated, in substance, that that would make no difference,—for the draughtsman to go ahead and get up the plans embracing the counter-shafting, etc.,—and gave airorder to the plaintiff, through Morand, to furnish the same, which was done, and the machinery was subsequently hauled away from the plaintiff’s factory by Tully’s team. The amount of this order seems to have been $411.54. This amount, as we understand it, was the cost of connecting the machine proper with the power. When this was done the machine did not give satisfaction, and a number of slight changes in its internal arrangements were made, but still it failed to do good work. While these matters were in progress, as testified to by Morand, Tully concluded to have an elevator constructed in connection with the machine, for the purpose of lifting the dirt into his carts, and ordered the draughtsman to prepare plans for the same, which he did, and on being submitted to Tully they were pronounced satisfactory, and the material for the elevator was gotten up at the plaintiff’s factory according to the plans, and was put up in the same manner by Tally’s workmen, under the general supervision of the draughtsman. The cost of getting it up at the factory, exclusive of the labor of. superintending the setting of it up, was $532.50. The present suit was brought to recover for the items covered by the two sums last above mentioned, which, in the aggregate, amount to $944.04, the exact sum-for which judgment was recovered.

The declaration was in assumpsit, containing the common counts only, and was accompanied with an affidavit of amount due. The defendants filed the general issue, with an affidavit annexed, setting forth that they verily believed they had a meritorious defence to the plaintiff’s claim, except $532.50, which, it will be observed, is the exact amount of the plaintiff’s claim for the elevator, leaving the conclusion irresistible that the action is, in effect, confessed so far as the elevator is concerned. Indeed, the appellants could scarcely have done' otherwise, for there is no pretence that the elevator constituted any part of the machine contracted to be put up by Cockell, nor of its connections; and we think there is just about as little foundation for the claim that the counter-shafting and its appendages, which were put up in furtherance of Tally’s interest and convenience in operating his brick yard, was any part of Cockell’s undertaking, and so the jury and the courts below found.

The whole controversy, it will be perceived, relates to the $411.54,—amount of counter-shafting, etc. Whether this material was furnished by the plaintiff to the defendants upon their order, and uras delivered to them in their ow7n wagons, were facts which have been settled by the lower courts, and are not reviewable here. The only questions of law presented for determination arise upon the refusal of the court to give the following instructions:

“1. If the jury further believe, from the evidence in this ease, that the defendants entered into a contract with Harvey Cockell, by which he was to furnish and erect for them one of his clay crushers and stone extractors, and that the plaintiff undertook and assumed to construct and erect the same for and on account of the said Cockell, then the jury are instructed that the said plaintiff can not, by bringing suit against the said defendants for the work and materials so furnished in the erection and construction of the said machine, escape the obligations and duties imposed by the guaranty and undertaking of the said Cockell, if he made any such guaranty.
“2. If the jury believe, from the evidence, that the plaintiff, either separately, or jointly with Cockell, undertook to furnish and erect the machinery in question for the defendants, under a guaranty that it should accomplish certain work, then the jury are instructed that the plaintiff can not recover from the defendants in this suit for any part of the work and machinery so furnished, unless the jury believe, from the evidence, that the plaintiff or the said Cockell has complied with the terms of the guaranty and undertaking aforesaid, unless the jury further believe, from the evidence, that the defendants have otherwise used and appropriated some part of the machinery or materials thus furnished by the plaintiff, and then the jury are instructed that the recovery of the said plaintiff will he limited to the value of such parts as were thus appropriated and used, and the jury are instructed that against this the said defendants have the right to recoup, deduct and set off any sum which they may- have expended in carrying out the undertaking and agreement of the said plaintiff or the said Cockell, and any loss, damage or expense which they may have incurred in attempting to carry out this undertaking, or by reason of the failure and defect in the working thereof while so undertaking to carry it out. ”

Neither of said instructions accurately states the law as applicable to the facts in the case, and hence they were both properly refused. With respect to the first instruction, it is to be borne in mind this suit is not brought by Cockell to recover the price of the machine. If it had been, the defendants would clearly have been entitled to recoup, under the general issue, whatever damages they may have sustained by reason of a breach of the warranty. If, as is assumed by the instruction, the action is brought in the name of the Excelsior Iron Works, for the work and materials furnished in the erection and construction of the machine, which would be simply an action in the name of the company for the value of the machine itself, it is very clear the breach of the guaranty by Cockell could not be set up by way of defence in such a suit, for Cockell is not a party to the suit, and his liability on the guaranty could not for that reason be determined in it. The controverted question of fact upon which the case turned was, whether the plaintiff had sold and delivered to the defendants certain specific articles sued for. If it had, then the defendants were liable for them, whether Cockell had performed his contract or not. On the other hand, if the articles sued for were materials furnished by the company to Cockell, then the action was brought against the wrong party, and the court should have instructed the jury to find for the defendants, as in case of nonsuit. It is as clear as anything can be, the defendants could not, by way of set off, recoupment or otherwise, avail themselves in the present action of any claim or cause of action they might have had against Cockell, and hence an instruction relating to his liability under the guaranty was improper. The evident tendency of such an instruction was to mislead the jury, and it w7as therefore properly refused.

Eor the reasons already stated, the second instruction is also bad. It is not only obnoxious to the objections pointed out in the first, but it is objectionable in other respects. It tells the jury that if the machinery sued for was guaranteed by the plaintiff, either separately, or jointly with Cockell, to accomplish certain results, which it had failed to do, there could be no recovery for such machinery, except so far as it had been actually used, etc. Now, there is not a particle of evidence tending to show that the plaintiff separately guaranteed anything. The written guaranty offered in evidence shows upon its face that it was made by Cockell alone. Nor do we think there is any evidence tending to show there W'as a joint undertaking on the part of the plaintiff and Cockell, as contemplated by the instruction. If such wrere the case, it is clear the action as brought could not be maintained, on the ground Cockell was not made a co-plaintiff, and the plaintiff in such case should have been nonsuited at the trial for that reason. In other words, the ease, upon the hypothesis stated in the instruction, should have been taken from the jury altogether.

In conclusion, we feel constrained to call attention to the imperfect manner in which the abstracts have been prepared. They do not fairly represent the case as shown in the record. By reason of this, much unnecessary labor has been imposed upon the court, and particularly the writer of this opinion.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    Elizabeth Bailey et al. v. William Bailey et al.

      Filed at Springfield January 26, 1886.

    X. Mortgage—deed absolute inform—degree of proof to show it to be a mortgage. A deed absolute on its face will never be held to be a mortgage, unless the proof is clear and positive that it was so intended by the parties.
    2. Doweb—widow of devisee of land upon which there is an incumbrance. "Where an owner of land has made a conveyance,of the same, absolute in form, to secure the repayment of a loan to him, and afterward devises the same land to another, the widow of the latter will be entitled to dower therein.
    3. Will—charge on land devised. A testator devised his entire interest in certain lots to his brother, and directed that out of that interest the latter should pay to whomever should have the care and control of his nephew through his minority, $100 annually, and $1000 to the nephew upon his majority: Held, that the devisee took the lots subject to the lien of the person taking care of the nephew, of $100 a year, as well as the lien for the $1000, in favor of the nephew himself.
    4. Decree—to pay money to guardian where there is no guardian. A decree for the payment of money to the guardian of a minor will not be erroneous merely from the fact the minor has no guardian at the time. In such case the money can not be paid until a guardian shall be appointed and qualified.
    5. Guardian—decree directing payment to guardian of money intended for one who has charge of the person of the ward. Where a devisee of land takes it subject to a charge thereon that he pay $100 a year to the person who should have the cafe and support of a minor during minority, a decree that the devisee pay the sum then due to the guardian, instead of to the person entitled thereto, is not erroneous. The guardian in such case can pay it to the person or persons entitled to the same.
    6. Former adjudication—how far conclusive as to matters properly involved, but omitted to be presented. A minor who files his bill by his guardian and attorney, claiming title to certain lands, should present the grounds showing his rights, and if he does not, he will not be allowed in’ a second suit to take advantage of his omission. If the first bill is dismissed, the adjudication will estop him from again seeking to recover the same premises on other and different grounds not presented in the first suit.
    Writ oe Error to the Circuit Court of McLean county; the Hon. Owen T. Pebetes, Judge, presiding.

      Mr. Thomas F. Tipton, for the plaintiffs in error:
    Proof not sufficient that the deed was intended for a mortgage. Sutphen v. Cushman, 35 Ill. 186; Knowles v. Knowles, 86 id. 3; Lindauer v. Cummings, 57 id. 200.
    The evidence must he clear and satisfactory. Price v. Karnes, 59 Ill. 276.
    After a long lapse of time a trust will be declared only upon the most positive and satisfactory evidence of the intention of the parties. Nicoll v. Mason, 49 Ill. 358.
    No title during coverture existed in James W. Bailey to the interest formerly owned by Albert, whose title, had he died at the moment, would have descended to his heirs, and therefore the widow of James W. took no dower. Nicoll v. Ogden, 29 Ill. 323; Nicoll v. Todd, 70 id. 295.
    If the title of Albert passed, it passed subject to the charge thereon for the benefit of Edward B. Perkins, and the dower would be subject to that incumbrance. The decree giving her dower in it should have fixed her share of this charge to be paid by the widow. Swaine v. Perine, 5 Johns. Ch. 490; Carll v. Butmann, 7 Me. 102; Gibson v. Crehore, 5 Pick. 158; Haughton v. Hapgood, 13 id. 146; Bell v. Mayor, 10 Paige, 71; House v. House, id. 158; Selb v. Montague, 102 Ill. 446.
    The court erred in directing Elizabeth Bailey to pay to the guardian of Perkins, as he had none, and if he had he would not be entitled to it unless he had cared for Perkins.
    Messrs. Stevenson & Ewing, for the defendants in error, referred to the evidence in detail, showing the deed was intended as a mortgage, and tending to prove payment of the debt. •
    The court erred in holding William Bailey, Jr., was estopped by the decree entered on bill filed in his name by his guardian. On bill of review, a decree may be set aside when fraud is shown, and cause for the delay. Griggs v. Geer, 3 Gilm. 2 ; Boyden v. Reed, 55 Ill. 458; Daniel’s Ch. Prac. 1876.

      The decree giving dower to Hattie Bailey makes it subject to the lien of Edward Perkins on the undivided half, and this is not .erroneous.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by Harriet Bailey and William Bailey, Jr., wherein the first named claims dower in certain premises in Saybrook, McLean county, and the other complainant seeks to review certain proceedings of the circuit court of McLean county, and for partition of the premises. The defendants answered the bill, and William H. Biggs, administrator of the estate of William Bailey, deceased, filed a cross-bill, in which he prayed that in case a certain deed from Albert Bailey to William Bailey, for a portion of the premises, should be declared a mortgage, the court decree a foreclosure of the mortgage. The cause proceeded to a hearing on the pleadings and evidence, and the court entered a decree dismissing the cross-bill, decreed in favor of Harriet Bailey as to dower, and decreed the relief prayed for as to a review of the former proceedings, but decreed in favor of William Bailey, Jr., as to lands not embraced in the former proceedings. Various objections. are taken to the decree, which will be considered in the order jnesented.

First, it is claimed that the court erred in finding that a certain deed from Albert Bailey to William Bailey, executed November 7, 1871, was-a mortgage. Whether the decree in this respect is erroneous or not, will, of course, depend upon the evidence bearing on the question. It appears from the "evidence, that in the fall of 1871, Albert Bailey, being in poor-health, went to Colorado, and one Stansbury, who knew- all the parties, testified that William Bailey told him, after Albert -was gone, that he had let him have money, and Albert gave him the deed, when he went away, to secure what he owed him. Albert Bailey returned from Colorado, and in February, 1873, made a will, which was written in the presence of William Bailey, and provision was made in the will for the payment of a debt of $1000 to William Bail'ey, from the proceeds of certain policies of insurance, and the land in question was devised to James Bailey. William Bailey, knowing the fact, made no objection, and set up no title under his deed. Again, after the deed was made, a portion of the land embraced therein was sold to Orendorff, and notwithstanding the fact that William Bailey had a deed of the land, a deed was prepared in Saybrook and sent to Colorado to procure the signature of Albert Bailey, and, he acknowledged the deed and' signed it. Albert Bailey received, the rents for his interest in the' land after the making of the deed, until his death. There are other facts, all pointing in the one direction, that the deed, although absolute on its face, was but a mortgage, so understood and intended by the parties. A deed absolute on its face will never be held to be a mortgage unless the proof is clear and positive, but here we think the proof was sufficient to authorize the decree.

The next point relied upon is, that the court erred in holding that Harriet Bailey was entitled tó dower in the entire premises. She was the widow of James Bailey, who owned originally- an undivided one-half of the premises, and as to the undivided half there seems to be no disjphte as to her dower right. She was not a party to the former proceedings, which are claimed to be a bar to a recovery on behalf of William Bailey, Jr., and hence those proceedings do not affect her rights. If the deed made by Albert Bailey to William Bailey on November 7, 1871, was but a mortgage, as we have determined it was, then the will of Albert passed the title to the other undivided half of the premises to James Bailey, subject to the claims of Eddie Perkins, which were made a charge on the land, and as he died seized of the title to the whole property, it follows that complainant was entitled to dower in the whole, as held by the circuit court.

The next point relied upon is, that the court erred in not making provision for the payment of the claim of William Bailey against the estate of James Bailey, which had been probated. The will of Albert Bailey, in which he devised his interest in the lots to James W. Bailey, contains a provision that the devisee, out of his interest in the lots, shall- pay whomever has the control of Edward Perkins during his minority, $100 annually, and that when said Perkins should arrive at the age of twenty-one, James W. Bailey shall pay him $1000. It appears from- the evidence, that William Bailey, Sr., had the control of and boarded Edward Perkins from February 12, 1873, until June 19, 1876, and this claim, amounting to $335.27, was allowed in the probate court as a claim against the estate of James W. Bailey. Edward Perkins also presented a claim for the money in the hands of James W. Bailey at the time of his death, and interest on the same from June 19, 1876, and the sum of $1029.16 was allowed him in the probate court. In the decree the court provided that Edward Perkins should have a lien on the premises devised, to secure the payment of the money which Albert Bailey had willed to him, but the decree made no provision whatever in regard to the money which was due William Bailey, Sr., from the estate of James W. Bailey. We think this was error. The $1000 devised to Edward Perkins, and the sum of $100, payable annually, to the person who had the care and control of Edward, were placed by Albert Bailey, in his will, on the same footing, and the payment of each sum was made a charge on the land devised. If it was right to protect the amount devised to Edward Perkins by making it a lien on the premises, upon the same principle and for the same reason the amount due William Bailey, Sr., for keeping Edward Perkins, as provided in the will, should be a lien on the devised premises. - Both amounts were payable from the same person, from the same property, and are entitled to be placed upon an equality. The decree will be so modified as to give the claim of William Bailey, Sr., the same lien as that provided for the claim of Edward Perkins, with the same remedies for its payment or collection.

It is also claimed that the court erred in directing that Elizabeth Bailey pay money to the guardian of Edward Perkins. It appears that Elizabeth Bailey received the rents of the property from July 3, 1877, and that the annual amount due for the support of Edward Perkins from that - date, as provided in the will of Albert Bailey, amounted to the sum of $650. This sum she was required to pay .over.to the guardian of Edward Perkins. It is said Edward Perkins has no guardian. If this be so, the money can not be paid until such time as a guardian is duly appointed and qualified. It is also said that the money is not payable to a guardian, but to the person who has the care and control of Edward Perkins. We perceive no difficulty in regard to this part of the decree. The guardian may properly receive this money as well as any other fund created for the benefit of the minor, and when received the guardian can distribute it or pay it out to the person to whom it may belong.

It is also insisted that if it is determined that the deed from Albert Bailey to William Bailey is a mortgage, then the cross-bill of Biggs should be sustained, and a decree of foreclosure entered. Had the debt which the deed was given to secure, remained unpaid, it might have been proper for the court, in that, event, to have sustained the cross-bill, and rendered a decree of foreclosure; but from the evidence heard by the court on this point we are of opinion that the debt was paid, and if paid, the cross-bill was properly dismissed. The sum of $1000, which Albert Bailey willed to his father, William Bailey, was no doubt intended to pay the amount of indebtedness secured by the deed. At least the evidence on the hearing seemed to indicate that the devise in the will was for that purpose.

It will be remembered that a former bill and decree were pleaded in bar of complainant’s right of recovery in this case, and the court held that complainant was estopped by the decree from claiming title to any of the premises described in the bill filed in the former case, but as to the property involved which was not described in the former bill, he was entitled to recover. This part of the decree is assigned for error by the defendant "William Bailey. We think this ruling of the court was correct. We see nothing in the evidence to take the case out of the operation of the general rule. When the complainant went into court with his first bill, it was his duty to bring forward and present all the claims and title which he then had on the property. As said in Rogers v. Higgins, 57 Ill. 244, the controversy can not be re-opened to hear additional reasons which before existed, and were within the knowledge of the party, in support of the same cause of action. The principle of res judicata embraces not only what actually was determined in the former case; hut also extends to any other matter properly involved and which might have been raised and determined in it. The complainant in the first suit was represented by a guardian and an attorney, who knew or ought to have known what rights and title the complainant had in the property, and it was their duty to present that title, and if they failed it was through their own neglect, which can not be used to complainant’s advantage in a second suit.

We regard the decree as correct except as to the modification indicated in this opinion, and it will be affirmed, except as to that modification. One-third of the costs of this court will be taxed to defendants in error and the balance to the plaintiffs in error.

Deere* modified.

This record was assigned "to Justice Dickey to prepare an opinion. The opinion was not prepared, and the record "was re-assigned at the November term, 1885.


author: Mr. Justice Scholfield

text:
    W. Irving Culver et al. v. William H. Colehour.

      Filed at Ottawa January 25, 1886.

      1. Practice—postponement of trial on account of attendance of counsel in another court. A requirement that to obtain a postponement of the hearing of a cause on the day set for that purpose, on account of the attendance of counsel in another court, it is not sufficient to show that the attorney in the case was expecting a case to be called in another court, but that it must be shown that he was at the time actually engaged in the trial of the other case, is a most reasonable one.
    2. ■ So where a case was set for hearing two months in advance, without objection, and on the day so fixed, a defendant, an attorney in the case, being absent and in attendance upon the United States Circuit Court, to resist a motion for an injunction expected-to come up for hearing in that court, and the cause being postponed for several times, and he was absent when it was heard, and it appeared that he had ample time -in which to make arrangements for other counsel in the one case or the other, but did not, it was held, no error to hear the case in the State court in his absence, and to refuse a motion for a rehearing.
    3. Eight of trial by jury—on petition to restore lost record. On a proceeding under the statute to restore a part of a lost record, the defendant is not entitled to a trial by jury, it not being a case in which the right to such a trial existed at common law.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Joseph E. G-ary, Judge, presiding.
    On the 30th of November, 1875, in a' suit then pending in the Superior Court of Cook county, wherein the Mechanics’ National Bank of Chicago was plaintiff, and Charles W. Cole-hour and William H. Colehour were defendants, an order of court was entered of record reciting due personal service of summons in said cause upon .the defendants, more than ten days before the November term, 1875, of the court, entering their default, and referring the cause to the clerk to assess the plaintiff’s damages at a future day. On the 6th of December, 1875, the damages having been assessed at $2265.50, the court rendered judgment therefor, and for costs of suit. Execution was afterwards issued upon the judgment, and subsequently an alias execution was issued thereon, and levied upon certain lots in the city of Chicago, then owned by William H. Colehour. These lots were sold, by virtue of this levy, to the Mechanics’ National Bank of Chicago, in satisfaction of the judgment. A sheriff’s deed was executed to the bank, by virtue of the sale, after the lapse of the requisite time, and the property has since passed, by mesne conveyances, to W. Irving Culver.
    On the 16th of April, 1884, William H. Colehour filed in the Superior Court of Cook county his petition in the cause, making W. Irving Culver and the Mechanics’ National Bank of Chicago defendants thereto, in which he alleges that he is one of the defendants in the cause entitled Mechanics’ National Bank of Chicago v. Charles TV. and William H. Colehour, in which judgment was rendered against both defendants on December 6, 1875; that the summons served on the defendants therein, with the return of the sheriff thereupon, upon which the order of default and the judgment were based, have been lost or destroyed; that in 1878 Charles J. Johnson, an attorney employed by petitioners, advised him to procure copies of all papers in said cause; that, assisted by Jacob Brewer, he made such copies, and that the following is a copy of said summons and of the return thereon, to-wit:
    “State of Illinois, ) Cook County. \

      “The People of the State of Illinois, to the sheriff of said county, greeting:

    “We again command you that you summon Charles H. Colehour and William H. Colehour, if they shall be found in your county, personally to be and appear before the Superior Court of Cook county, on the -first day of the term thereof, to be hoi cien at the court house in the city of Chicago, in said Cook county, on the first Monday of October next, to answer unto the Mechanics’ National Bank in a plea of trespass on the case upon promises, to the damage of the said plaintiff, as it is said, in the sum of $4000. And have you then and there this writ, with an indorsement thereon, in what manner you shall have executed the same.
    “Witness, Alexander F. Stevenson, clerk of our said court, and the seal thereof, at Chicago aforesaid, this 6th day of October, A. D. 1875.
    F. Stevenson, Clerk.”

    [Seal of Superior Court.]
    Indorsed:
    “Served this writ on the within named defendants by reading the same to each of them, the 16th day of October, 1875.
    Francis Ag-new, Sheriff.

    By T. H. Smith, Deputy.”
    That at the time petitioners made such copies, said summons was among the papers and files of said cause, in the custody of the clerk of the court; that said summons is the only summons in the cause ever served on the petitioners; that the loss of the summons and indorsement was without the fault or neglect of the petitioners, and that such loss will result in damage to the petitioners. The prayer is that the court make an order reciting what was the substance and effect of said summons and indorsement, and the filing of the same, pursuant to chapter 116, section 2, of the Revised Statutes of 1874.
    Answers were filed putting in issue the allegations respecting the summons and return as copied, denying that the summons was returnable on the first Monday of October next after its issue, but alleging that it was returnable on the first Monday of November next after its issue, and insisting that the recital of the record, as to due service, etc., was correct. The answer of Culver was verified by his affidavit, and he therein states the fact to be, upon his own absolute recollection and knowledge, that the recitals of the records of the court as to due service of summons, are true in fact and in every respect, and that after such service the petitioners solicited a delay of a few days in entering judgment, promising to pay, or settle, or secure the amount sued for, and that, accordingly, delay in entering the judgment was granted until the 6th of December, 1875. He interposed the defence of laches, and alleged that during the long lapse of time intervening the rendering of the judgment and the filing of the petition, the petitioners never claimed to have not been served with proper process, etc. The cause was heard on the 24th of June, A. D. 1884, and the court decreed as prayed in the petition. On the 26th of June, A. D. 1884, the bank and Culver moved the court to vacate and set aside the decree of the 24th, and to allow them a rehearing. This motion was denied by the court. On appeal to the Appellate Court for the First District, the decree of the Superior Court was affirmed. This appeal is from that judgment of affirmance.
    Messrs. McCagg & Cülveb, for the appellant.
    Mr. Edwabd Roby, for the appellee.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The ground upon which the motion to vacate and set aside the decree of the 24th of June was based, was an oral statement made in court by Culver, and by agreement of parties accepted as his affidavit, to the effect that he was not present at the hearing because of his actual and necessary engagement at the Circuit Court of the United States, at the same time, in arguing and resisting an application by the United States of America for an injunction against the Chicago ball club and the city of Chicago.

The bill of exceptions shows that on the 16th of April, A. D. 1884, Culver being present in court at the time, the court set this cause down for hearing on Monday morning, June 23, A. D. 1884, on witnesses then to be examined and cross-examined in open court. At the time thus set for hearing, the petitioner announced to the court his readiness to proceed, but Culver was not present, and on a representation being made by his clerk to the court that he was then actually engaged in an argument of a motion for an injunction in tfie Circuit Court of the United States, the court announced that, inasmuch as the argument for an injunction in the United States Court could not continue through the entire day, the case would then be passed, another case be taken up for trial, and this case be again called after the termination of that trial, and the court gave notice that, inasmuch as the judge could not watch the progress of trials in the United States Circuit Court, it would be necessary for some one representing Culver, to be constantly present in court if any further postponement should be desired. After the noon recess, the law partner of Culver appeared in court and represented to the court that although Culver had not, up to that time, been actually engaged in the United States Circuit Court, yet that he had been employed to resist an application by the United States of America for an injunction against the Chicago ball club and the city of Chicago, which application he had been notified would be made on that day, and it was expected to be heard by the court as soon as the court should dispose of pending motions in other eases. The counsel for the petitioners then informed the court that he had been twice in the United States Circuit Court during the day, and left there at fifteen minutes before two; that then the judge was only about half through with his motions, and it was not probable that Culver’s case would be reached that afternoon; that the witnesses for the petitioner were all present ; that having come fourteen miles, and one of them being a justice of the peace, having public duties to perform at his office, it would be very inconvenient and burdensome to keep them there for the day. The law partner of Culver informed the court that the case in the United States Circuit Court was more important to the clients of Culver than this case was to Culver, and that he would not he present in the court during that afternoon. The court' thereupon announced that the case would be taken up on the next morning (Tuesday, June 24, A. D. 1884,) after concluding the trial that was then pending, and that if Culver should then desire a further postponement of the hearing on account of his actual engagement in the trial of his motion before the United States Circuit Court, it would be necessary for him to have some one present in court when the case should be called, to notify the court of that fact; that it would not be enough that he was expecting his motion to come up,—the ease could not be postponed except • for actual engagement in the matter of the motion. On the next morning (June 24, A. D. 1884,) Culver’s clerk appeared in open court and moved for a postponement of the ease for reasons alleged in the affidavit of Culver then filed. This affidavit merely stated that he would be in attendance in the United States Court during that day, to resist the application for injunction, and that the judge of that court had, on the day before, announced that that application would on that morning have precedence of all other cases. The court adjudged the affidavit insufficient, but announced that there was another matter which would require its attention for a while, and that when that should be concluded this case would be taken up, and if Culver then desired a further postponement of the hearing, it would be necessary for him to have some one present to show to the court that he was then actually engaged in the matter of his motion in the United States Circuit Court. The matter then occupying the attention of the court was not disposed of until the noon recess. At that time the court announced that this case would be the first to be taken up at the expiration of that recess,—at two o’clock P. M. At that hour the case was called, the judge inquiring in loud and distinct tones, which were heard all over the court room, whether any one was present representing Culver, and no one answering. The trial had progressed about twelve minutes when a statement was madé to the court that Culver was then actually engaged in the matter of his motion before the United States Circuit Court, and, soon after, this was confirmed by a statement of Culver’s clerk, made in open court, but the court proceeded with the trial.

It is impossible to perceive any abuse of the discretion vested in the court in this action. The requirement that to obtain a postponement of the hearing it was not sufficient to show merely that the attorney was expecting a case to be called, but that it must be shown that he was, at the time, actually engaged, was most reasonable. If the mere expectation were held sufficient, then it would be often entirely within the discretion of the attorney whether he would, at a given time, try a case in the Superior Court or not, for the word “expectation” implies such indefiniteness and want of precise limitations, that in most cases it would be difficult, and in many impossible, to raise an issue upon an application of that kind. Had Culver employed some one to look after his case in the United States Court, he might easily have tried this case before that was peached. The petitioner and his witnesses ought not to be put to inconvenience or expense merely that Culver might earn a fee in another cáse, or, if his presence in that case was indispensable to prevent irreparable loss to his clients, he ought to have made arrangements in advance for some one to represent him in this case. He knew from the 16th of April, more than two months before the day set for the hearing, when this hearing was to occur. How long before that time he knew that the application for an injunction would be made on the same day, does not appear, but we may assume, for the contrary was not shown, that it was in ample time to have made arrangements for other counsel in one case or the other, or to have made some arrangement whereby the one case or the other sho.uld be postponed to avoid a conflict in the hearing. Cases brought in the Superior Court are as much entitled to a speedy trial as those brought in the United States Circuit Court, and the rule adopted and enforced in this case in the former court, if reciprocated in the lower court, is probably the fairest to counsel practicing in both courts that can be devised; but even if it be not reciprocated, no principle of justice to suitors in the Superior Court will admit of a more onerous rule upon them.

This case is not analogous to Hearson v. Graudine, 87 Ill. 115, to which we are referred in the argument of counsel. That case was decided on a rule of court read in evidence, which does not here appear to have been given in evidence. But even if it had been, in that case it was shown the defendant had a meritorious defence, and that he was guilty of no fault in the delay sought, whereas, here it is not shown that the defendant has proof to overcome the evidence in respect to the summons given in evidence on the hearing, or that a different result must be reached upon another hearing, nor do we think that he has shown reasonable diligence to be present at the hearing.

An objection is urged, based upon Archer v. Spillman, 1 Scam. 553, Ware v. Nottinger, 35 Ill. 375, and Hermann v. Pardrige, 79 id. 471, that the Superior Court erred in proceeding with the hearing without calling a jury. The right of trial by jury recognized in those cases is as it existed at common law. This is not a common law proceeding, but a proceeding under chapter 116 of the Revised Statutes of 1874, and a j ury trial is neither contemplated by it nor indispensable to the relief here decreed. Petition of Ferrier, 103 Ill. 367; Ward v. Farwell et al. 97 id. 593; Heacock v. Hosmer, 109 id. 245.

The judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Tunnicliff

text:
    Robert Graham et al. v. The People of the State of Illinois.

      Filed at Ottawa January 25, 1886.

    1. Evidence in criminal case—as to an offer to settle the matter with the prosecution. On the trial of two persons upon the charge of robbery, the prosecution asked the prosecutor if he had been approached by anybody in the interest of the defendants, and if he had taken any money to settle the case, to which he replied, “Yes, sir; X took $25 from-Mr. H., the uncle of G-. (one of the defendants,) in payment of my watch, as I supposed, ” etc.: Held, that the evidence was incompetent, and calculated to prejudice the defendants, and should have been excluded if it had been objected to.
    2. Practice—how to question the admissibility of evidence offered. If a party desires to raise the question in this court as to the admissibility of evidence offered in the trial court, he should at the time object to its admission, and thereby obtain a ruling of the trial court, and, if adverse, take an exception.
    3. Bill of exceptions—what it should contain—-in respect to a motion for a new trial. A party, in order to assign for error the overruling of his motion for a new trial, must, in his bill of exceptions, show such motion was made in the trial court, the ruling of the court thereon, and his exception thereto. It is not enough that the clerk’s record shows these facts.
    4. Hew triad—in a criminal case—on the evidence. It being the peculiar province of. the jury to weigh and consider the evidence, and judge, from the appearance of the witnesses on the stand, their apparent honesty, intelligence and candor, or the want of it, what weight should be given to their testimony, unless this court can see that their finding is so contrary to the evidence as to impress the court with the belief that the verdict is the result of passion or prejudice, it will not be disturbed.
    Writ of Error to the Criminal Court of Cook county; the Hon. Rollin S. Williamson, Judge, presiding.
    Mr. S. R. Keogh, and Messrs. Snowhook, Johnson & Gray, for the plaintiffs in error.
    A conviction clearly against the weight of evidence will be set aside. 2 Wharton on Am. Grim. Law, sec. 3110.
    The conviction was clearly against the weight of evidence, and the verdict of the jury was wholly unwarranted, and a new trial should have been granted. Rafferty v. People, 72 Ill. 37; Randall v. People, 63 id. 202.
    An alibi is a good defence when proved beyond a reasonable doubt. Miller v. People, 39 Ill. 457.
    It is as legitimate a defence as any other. Hopps v. People, 31 Ill. 459; Creed v. People, 81 id. 565; Lincoln v. People, 20 id. 364.
    It is a principle of criminal jurisprudence that a defendant does not waive any of his rights, and therefore can not be said to consent to the introduction of illegal or improper evidence not objected to in the course of the trial. The evidence introduced by the State’s attorney in regard to the payment of $25 to Rogers, the prosecuting witness, was illegal and improper.
    Mr. George Hunt, Attorney General, for the People:
    No objection was made to the evidence now complained of. While it is true an accused stands on all his rights, he may waive them. He has the right to object to improper evidence, but if he does not, he will be held to have waived the right. McKinney v. People, 2 Gilm. 556; Bulliner v. People, 95 Ill. 401.
    The testimony relied on as showing an alibi, comes principally from the family and near relatives of defendants, and the jury had a right to take this fact into consideration. To establish an alibi the proof must cover the whole time the offence was committed. Creed v. People, 81 Ill. 565.
    When the evidence against the defendant is strong and clear, it devolves on him to prove the alibi clearly and satisfactorily. Garrity v. People, 107 Ill. 162.
    When there is a conflict in the testimony of witnesses, it is for the jury to determine to whom they will give credence. People v. McKee, 92 Ill. 397; Higgins v. People, 98 id. 519; Rogers v. People, id. 581.
   Mr. Justice Tunnicliff

delivered the opinion of the Court:

The plaintiffs in error, Eobert Graham and Hugh McCue, were convicted, in the Criminal Court of Cook county, of the crime of robbing the prosecutor of his watch.

On the trial the following question was asked the prosecuting witness, viz: “Have you been approached by anybody in the interest of these defendants, and have you taken any money to settle this case?” to which he made the following answer: “Yes, sir; I took $25 from Mr. Hemingway, the uncle of Graham, in payment of my watch, as I supposed. The watch was not mine. It belongs to another man, who left it with me as security for a bill, and I was wearing it that night. He sent for me, and wanted to settle the case.” Counsel for plaintiffs in error urge that this evidence was incompetent, and calculated to prejudice their clients with the jury. In this wp fully agree with them, but an examination of the record discloses that there was no objection made or exception taken to its introduction. On the contrary, counsel cross-examined the witness concerning the same matter, and also introduced other testimony on behalf of plaintiffs in error, in regard thereto. But having failed to make any objection, and thereby obtain a ruling of the court as to the admissibility of the testimony, and take an exception to its decision, if adverse to them, we are precluded from examining the question.- Had objection been made, the court would have doubtless excluded it. As was said by this court in McKinney v. People, 2 Gilm. 556: “A prisoner on trial, under our laws, has no right to stand by and suffer irregular proceedings to take place, and then ask to have the proceedings reversed on error on account of such irregularities. The law, by furnishing him with counsel to defend him, has placed him on the same platform with all other defendants, and if he neglects in proper time to insist on his rights, he waives them.” To the same effect are Bulliner et al. v. People, 95 Ill. 394, and Perteet v. People, 70 id. 171.

The judgment is also asked to be reversed because, as is claimed, the jury found contrary to the evidence. We have examined the evidence carefully, and are unable to say that the jury were not authorized to find the verdict they did. The only question regarded the identity of the prisoners, the plaintiffs in error. The prosecuting witness had known one of them personally for eight or ten years, and the other all of the preceding winter. He swears positively to their being the persons who robbed him, and is confirmed by other testimony in the case. Against this, plaintiffs in error swear on their own behalf to their innocence, and offer evidence of their relatives and friends to prove an alibi. It was the peculiar province of the jury to weigh and consider the evidence, and judge from the appearance of the witnesses on the stand, their apparent honesty, intelligence and candor, or the want of it, what weight should be given to their testimony; and unless we can see that their finding is so contrary to the evidence as to impress the court with the belief that the verdict is the result of passion or prejudice, we ought not to disturb it.

But even if the verdict was not supported by the evidence, we could not reverse the judgment for that reason, because the bill of exceptions does not show that any motion was made in the court below for a new trial on that account. In fact it does not show that any motion for a new trial was made at all. The transcript shows an entry made by the clerk in his record, of a motion for a new trial by plaintiffs in error, and that it was overruled, and an exception taken; but it does not show on what the motion was based, and if it did, it would not be sufficient, as we have repeatedly held that motions of this kind, and the rulings of the court thereon, and the exceptions, if any are taken, must be preserved by bill of exceptions, and that a mere entry of the same by the clerk on the record will not answer the purpose. In Daniels v. Shields, 38 Ill. 197, the transcript showed, as a part of the entry of record in the court below, after the formal entry of judgment, the following: “Thereupon the said plaintiff, by Parks, his attorney, enters his motion for a new trial, which motion is overruled by the court, and to which ruling of the court in overruling his said motion for a new trial, and the judgment of the court aforesaid, the said plaintiff, by his said attorney, then and there excepted, ” etc. That entry is the same as in this case, and it was there held that it was insufficient, because not embodied in a bill of exceptions. See, also, Gill v. People, 42 Ill. 321, and James v. Dexter, 113 id. 654.

The judgment of the court below must be affirmed.

Judgment affirmed.


author: Mr. Justice Shops

text:
    John W. Taylor v. William Adams.

      Filed at Ottawa January 25, 1886.

    1. Evidence—original record of decree instead of certified copy. On the trial of an action of ejectment, in which the plaintiff claims under a decree of foreclosure of a mortgage, the original record of the foreclosure in the same court is admissible in evidence. In such case the plaintiff is not bound to produce a certified copy of the record. The court will take judicial notice of its own records.
    2. The record of a court may properly be used instead of a copy, where the case in which it is offered is being tried in the same court which made the record, though one case was in equity and the other at law.
    3. Practice—when the specific objection should be made. An objection to a record of the court for the want of a placita, made in this court for the first time, comes too late, as, if made below, it might have been obviated. A general objection below will not reach it.
    4. Ejectment—by mortgagee after condition broken—and against whom. After condition broken, ejectment may be maintained by the mortgagee against the mortgagor, or those to whom the latter may have assigned the equity of redemption.

      5. Same—possession of defendant. In ejectment by the purchaser under a decree of foreclosure of a mortgage, the proof showed that the defendant, the mortgagor, and his wife, after condition broken, he being in possession, conveyed the equity of redemption to a third party, who never took actual possession, and who leased the premises to the wife, and the mortgagor, with his wife, continued in the occupancy of the same.as before: Held, that the action could not be defeated under a plea of the defendant denying possession.
    6. Same—outstanding title. Where, before bill filed to foreclose a mortgage, the mortgagor and wife conveyed the mortgaged premises to the father of the mortgagor’s wife, and he to her, and the purchaser under the foreclosure brought ejectment against the mortgagor, it was held, that the title in the wife could not be set up as an outstanding paramount title to defeat the action.
    7. Mortgage—grantee of mortgagor—extent of his rights—if not made apcirty to foreclosure, right of redemption. The grantee of a mortgagor, after condition broken, takes but the equity of redemption, which can not prevail in an action of ejectment over the legal title. The failure to make him a party to a bill to foreclose the mortgage will not affect the validity of the decree, but his right to redeem from the mortgage will not be foreclosed.
    8. A mortgagor, or his grantee, can not make a lease of mortgaged premises which will give greater rights than he possesses, and that will interfere with the right of the mortgagee to enter for condition broken.
    Appeal from the Circuit Court of Will county; the Hon. George W. Stipp, Judge, presiding.
    This was an action of ejectment, brought by William Adams against John W. Taylor. The plaintiff’s title was derived as follows: On the 25th day of March, 1862, the appellant, John W. Taylor, executed a mortgage upon the' premises in controversy to one Edmund Wilcox, to secure notes given by Taylor to Wilcox for the purchase money of the lots. These notes were assigned by Wilcox to one Clement, and by him to appellee. The notes became due, and remaining unpaid, appellee, by regular proceedings in chancery in the circuit court of Will county, foreclosed the mortgage and became the purchaser at the master’s sale, and the redemption expiring, he obtained a deed for the same. The bill of foreclosure was filed September 24, 1874. In June, 1874, appellant and his wife conveyed the equity of redemption in said premises to the wife’s father, and he conveyed back on the same day, to her, the wife, without having taken possession .of the premises. On April 10, 1879, appellant and wife again conveyed to her father. On April 1, 1880, Miner, the father of appellant’s wife, executed a lease to her for one year. There was, however, no change of possession. Appellant continued to reside with his wife and child, and carry on business, on the mortgaged premises, at the time this suit was commenced and up to the trial.
    Messrs. Haley & O’Donnell, for the appellant:
    The decree of foreclosure could not be proved, except by a certified copy under the seal of the court.
    When a record contains no placitum or convening order of court, it is defective and void. Vail v. Iglehart, 69 Ill. 329 ; Planing Mill Lumber Co. v. Chicago, 56 id. 304; Rich v. Chicago, 59 id. 286; Lawrence v. Fast, 20 id. 338; Dukes v. Rowley, 24 id. 210.
    At the time the bill was filed to foreclose the mortgage, appellant was not the owner of the equity of redemption, but it was in Mary E. Taylor. The grantee of the mortgagor is the owner of the equity of redemption. Ohling v. Luitjens, 30 Ill. 23.
    She having the right to the possession, ejectment would not lie against her husband to dispossess them both.
    Messrs. G-arnsby & Knox, for the appellee:
    The objection that the record of the decree of foreclosure wants a placita, is made for the first time in this court, and comes too late. Hyde v. Heath, 75 Ill. 381.
    As the suit is not on the decree, no placita is required. Philip v. Webster, 85 Ill. 146.
    Having pleaded the general issue, and retained it during the trial, Taylor can not deny that he is in possession of the property sued for. Bev. Stat. 1874, chap. 25, dec. 19, 25; Tyler v. Orell, 5 Ired. L. 569; Judge v. Houston, 12 id. 112.
    The proof shows conclusively that he occupies the property, and conforms to the statute and decisions. Rev. Stat. 1874, chap. 25, sec. 6; Goodhue v. Baker, 22 Ill. 262.
    He being the actual occupant, as the head of the family, a claim by his wife, under a holder of this equity of redemption, can not be allowed, the holder of that equity never having been in possession of the premises.
    The lease can confer no right of possession, for, if valid, it is a lease by the owner of an equity who had no right of possession, and who was not the holder of a legal title, and who never was in possession. This, if allowed, would be setting up an equitable title to defeat an action of ejectment, which can not be done. Wales v. Bogue, 31 Ill. 468; Fischer v. Eslaman, 68 id. 82.
   Mr. Justice Shops

delivered the opinion of the Court:

There were two pleas filed in this case: First, the general issue; secondly, that defendant was not in possession of the premises at the time of suit brought. This latter plea was verified by affidavit. We are of opinion that the evidence warranted the finding against appellant upon this latter plea, "and that the finding as to that issue can not be disturbed.

On the trial the court admitted in evidence, over the objection of appellant, the original records of the foreclosure proceedings in the same court, under which appellee claimed title. The ground of objection stated at the time was, that the record could only be proved by copy thereof duly certified, and that the record “was insufficient, irrelevant and incompetent, and did not prove anything. ” This cause was tried in the Will county circuit court, and the record read in evidence was the record of the same court. It is not necessary that a certified copy of the record should be made when it is sought to use the record in the same court where it is entered. Courts judicially take notice of their own records. The record may be properly used instead of a copy when the case in which it is. offered is being tried in the same court which made the record. 1 Greenleaf on Evidence, sec. 502; Gray v. Davis, 27 Conn. 447.

It is, however, insisted, that the record was inadmissible for the want of a plácito,; but this objection is specifically pointed out in this court for the first time, and it comes too late. The objection for incompetency and irrelevancy amount to a general objection, only. It is an objection which, if pointed out, might have been obviated in the court below, and such objections must be made in the trial court, or they will be considered waived. Hyde v. Heath, 75 Ill. 381.

The. appellant set up in the court below, as a defence to the action, outstanding title in his wife. The title thus set up was that which she derived through the conveyance of himself and wife to Miner, and by Miner to her, executed after the execution and delivery of the mortgage to Wilcox, and after foreclosure proceedings thereon had been instituted. All that appellant had then to convey was a mere equity of redemption, and that was all she or her grantor took by such conveyance, and which can not prevail against the legal title in an action at law. Aholtz v. Zellar, 88 Ill. 24; Wales v. Bogue, 31 id. 464; Kruse v. Scripps, 11 id. 98; Fleming v. Carter, 70 id. 286; Fischer v. Eslaman, 68 id. 78.

It is a familiar principle, that after condition broken, ejectment may be maintained by the mortgagee against the mortgagor, or those to whom he may have assigned the equity of redemption. Appellant could invest his grantee with no greater title than he possessed, or put him in better condition than he occupied himself. The purchaser of the mortgaged premises from the mortgagor stands in the shoes of the mortgagor, and is charged with notice of the mortgage and its legal effect. He succeeds to the rights of the mortgagor, but is in no better condition. The failure to make him a party to a proceeding to foreclose the mortgage does not affect the validity of the decree, but his right of redemption is unaffected by it. Kelgour v. Wood, 64 Ill. 345; Kruse v. Scripps, supra; Jackson v. Warren, 32 id. 340.

It is insisted that the possession of the premises at the time this suit was brought, was the possession of the wife of appellant, and not his, and therefore the judgment is erroneous. We do not think so. Appellant was in possession, as mortgagor, after condition broken, either by himself or tenant, at the time of the conveyance by himself and wife to Miner. The conveyance to Miner was of a mere equity,—not the legal or paramount title which in contemplation of law draws the possession to it. Before the conveyance to Miner, appellant was in possession by his tenant. Upon the tenant leaving the premises, appellant himself went into the actual occupancy, and continued to occupy, with his family, to the trial. When this right of the wife and her grantor accrued, the right to the possession was in the mortgagee,—not in her or his grantor or lessor. Her lessor never was in possession, and hence, having neither the actual nor constructive possession, could not invest her with it. A mortgagor, or his grantee, can not make a lease of mortgaged premises which will give greater right than he possesses, and that will interfere with the right of the mortgagee to enter for condition broken. Gartside v. Outley, 58 Ill. 211.

We think, as before stated, that the evidence sufficiently warranted the finding against appellant on his second plea.

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

Judgment affirmed.