text:
    Ira B. Hall v. Margaret Harris et al.

      Filed at Springfield

      March 30, 1885.

    1. Mortgage—foreclosure—subject to homestead and dower—where the wife does not join in the mortgage. Where the wife of a mortgagor fails to unite with him in the mortgage and release her homestead and dower in the premises, a decree after the death of the husband which saves to the wife her dower and homestead in the premises, and directs a foreclosure of the mortgage for the amount found due, and provides for a sale of the residue of the mortgaged premises after the assignment of her homestead, subject to her dower and the unmatured part of the mortgage debt, is not erroneous as against the mortgagee.
    2. On the foreclosure of such a mortgage there can be no sale until the homestead is assigned to the widow; and a decree of foreclosure directing an • assignment of the homestead before sale of the residue, is not the granting of affirmative relief to her upon answer, but is for the benefit of the complainant, and is warranted under the prayer in the bill for “such other and further relief as equity may require. ”
    3. On foreclosure in such case, the decree fixed the value of the homestead at $1000, and directed the master to pay the widow that amount in case the homestead could not be assigned and a sale Was made of the land. The homestead was in fact assigned, and the residue of the premises sold subject to the widow’s dower therein: Held, that even if there was error in requiring the payment of $1000 to the widow in case the homestead could not be assigned, it was one that worked no harm to the complainant, as, the homestead being assigned, there was no occasion to execute that portion of the decree.
    á. Same—ordering sale subject to unmatured part of debt. The complainant can not object to a decree of foreclosure for the reason that it directs a sale of the mortgaged premises subject to that part of the mortgage debt not then due, though the defendant might object for such reason.
    Appeal from the Appellate Court for the Third District;— heard in that court on writ of error to the Circuit Court of Logan county; the Hon. Lyman Lacey, Judge, presiding.
    The bill in this ease was brought by Ira B. Hall, to foreclose a mortgage made by Thomas H. Harris, since deceased, and was brought to the - January term, 1879, of the circuit court of Logan county. The mortgagor having departed this life before the bill was filed, his widow and his hems, together with the administrators of his' estate, were made defendants. It appears the mortgage was made to secure five promissory notes, of even date with the mortgage, amounting, in the aggregate, to the sum of $3000, all of which notes bore interest at the rate of ten per cent per annum. Answers were filed, and on the hearing the court rendered a decree of foreclosure for so much of the mortgage indebtedness as was due at the •time the bill was filed. In May, 1884, after the decree in favor of complainant had been executed, he sued out from the Appellate Court a writ of error to the circuit court. On the hearing in the Appellate Court the decree of the circuit court was affirmed, and complainant brings the cause to this court on appeal.
    Messrs. Stevenson & Ewing, Mr. William Don Maus, and Mr. M. D. Beecher, for the appellant:
    Under the bill, and the prayer thereof, the provisions in the decree as to dower and homestead, and making the sale subject to the lien of the unmatured notes, are not justified. White v. Morrison, 11 Ill. 366; Waugh v. Robbins, 33 id. 181; Morgan v. Smith, 11 id. 194; Fergus v. Tinkham, 38 id. 407; Bryan v. Howland, 98 id. 625; Marvin v. Collins, id. 510.
    The answer of the widow, setting up her dower and homestead rights, did not present such an issue as to authorize the court in setting off the homestead and decreeing dower. Asher v. Mitchell, 92 Ill. 480; Goltra v. Green, 98 id. 317.
    The decree must be confined to the case made by the pleadings. Marvin v. Collins, 98 Ill. 510; Jackson v. Miner, 101 id. 550.
    To secure affirmative relief, the defendants must file a cross-bill. Mason v. McGive, 28 Ill. 322; Stone v. Smoot, 39 id. 409; Titsworth v. Stout, 49 id. 78; Price v. Blackmore, 65 id. 386; Thompson v. Shoemaker, 68 id. 256; Purdy v. Ilenslee, 97 id. 389; White v. White, 103 id. 438.
    That part of the decree which fixes the amount of the homestead at $1000, and directs the master to pay the same, is erroneous. Merritt v. Merritt, 97 Ill. 243; Browning v. Harris, 99 id. 466.
    It was error to make the sale subject to the lien of the unpaid notes. Hardy v. Barton, 79 Ill. 504; H. Paige, 619; 7 Ohio, 231.
    Messrs. Blinn & Hoblitt, for the appellees:
    The answer was by way of defence to the extent of the homestead, and the court did not grant any affirmative relief, but followed the statute. Rev. Stat. chap. 52, see. 8.
    The decree does not assign dower, but simply protects the dower right.
    After the complainant has satisfied the decree by the sale of land, he can not be allowed to allege error in the same, and procure a reversal.
   Mr. Justice Scott

delivered the opinion of the Court:

The mortgage sought to be foreclosed by the bill in this case was made by Thomas H. Harris, who died before the suit was commenced. The premises embraced in the mortgage were the homestead of the mortgagor, and since his death the widow and her family have continued to reside upon the same. The wife of the mortgagor did not join with her husband in the execution of the mortgage, and it is admitted she is entitled to -both dower and homestead in the mortgaged premises. Only a part of the mortgage indebtedness was due when the bill was filed. In her answer the widow, Margaret Harris, admitted the death of her husband, Thomas H. Harris, but disclaimed any knowledge of the making and delivering of the notes and mortgage,' and by appropriate allegations set up her homestead and dower in the premises, and asked that her rights therein be protected. Nothing contained in the other answers is important to be stated. The decree saved to the widow her dower and homestead in the premises, and directed a foreclosure of the mortgage for the amount found due, and provided for the sale of the residue of the mortgaged premises, after the assignment of homestead, as provided in the statute, subject to the dower of the widow and to the unmatured portion of the mortgage indebtedness. This decree was afterwards executed by the master in chancery, who caused homestead to be assigned to the widow, as directed in the decree and by the statute, and then sold the residue of the mortgaged property, subject to the widow’s dower and the unmatured mortgage indebtedness, as he was directed by the decree to do, and at such sale complainant became the purchaser, to whom was issued the usual certificate of purchase.

Numerous errors have been assigned, but in the view taken of the case it will not be necessary to notice all of them. It is said the decree is erroneous as setting off homestead and dower to the widow, thus granting affirmative relief to her on her answer. The decree does not purport to assign dower to the widow. It only saves her dower, and in this respect there was no error. Concerning the homestead, it is admitted the widow was entitled to a homestead in the premises, and, under the statute, there could be no sale until it should be assigned to her as the statute provides. The" decree does not grant affirmative relief either as to dower or homestead. As has been seen, the decree did not provide for the assignment of dower, and as to assigning the homestead, that was done for the benefit of complainant, that he might have a sale of the residue of the premises, and the decree in this behalf is clearly warranted by the prayer of the bill for “such other and further relief in the premises as equity may require. ”

It is also said the decree is erroneous as fixing the value of the homestead of the widow in the mortgaged lands at $1000, and directing the master in chancery to pay her that amount in case the homestead could not be assigned and a sale of the premises should thereafter be made. The statute fixes the value of the homestead, and the decree simply follows it. If it shall be conceded it was error to direct the master to pay her that amount.in case the homestead could not be assigned and the premises should have to be sold, the decree in that respect did complainant no harm, as the homestead was in fact assigned under the statute, and no money was paid to the widow in lieu of homestead. It is not a matter of which complainant will now be heard to complain.

The point is made that part of the decree directing the sale of the property subject to the lien of the mortgage for the unmatured notes, was contrary to law. It would seem to be a sufficient answer to the position taken, that the decree in this respect is most favorable to complainant, and can work no hardship to him in any event. Defendants might have objected to the decree for this reason, but as no possible injury can come to complainant on that account, he will not be permitted to assign it for error. As has been seen, at the master’s sale he purchased the residue of the property after the assignment of homestead had been made. In case the property should be redeemed by any of defendants, it would still be subject to the unpaid mortgage indebtedness, and in that regard it is most favorable to complainant; but if not redeemed, then he would own the property he bought, subject to the dower of the widow, and that is all he could get in any event. In either view, there is no just ground for complaint on that score.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Mulkey

license: Public Domain

text:
    Elisha B. Steere v. William J. Brownell.

      Filed at Springfield

      March 30, 1885.

    1. Aebitbation—extent of the award, as embracing all matters submitted. An award of arbitrators, to be valid and binding, must embrace and decide all matters submitted to them and not withdrawn by the parties from their consideration.
    2. Same—what to be regarded as a withdrawal of a part of matters submitted. A promise by one of the contesting parties to a submission to arbitration, to pay certain of the claims embraced in the submission, the promise being upon such conditions, however, as to leave unsettled the very question of liability in respect to such claims which was covered by the submission, will not be regarded as a withdrawal of them from the consideration of the arbitrators.
    3. Same—of award prepared by one of the attorneys in the proceeding. The fact that an award of arbitrators is prepared by one of the attorneys of the successful party, affords no ground for setting the award aside, where it fully expresses the findings and conclusions of the arbitrators.

      4. Same—effect of signing the award at different times and places. The fact that an award is not signed by all the arbitrators at the same time and place, affords no ground for setting the same aside. It is sufficient that it is signed by them after the close of their investigation and deliberations, and fully expresses the conclusions reached by them.

      5. Same—setting aside of award on technical grounds. An award should not be set aside on merely technical grounds that in nowise affect the merits of the controversy, especially where it is apparent that the utmost good faith has been observed.
    Appeal from the Appellate Court for the Third District; —heard in that court on appeal from the Circuit Court of McLean county; the Hon. Owen T. Reeves, Judge, presiding.
    On the 1st of January, 1877, Elisha B. Steere, the appellant, and William J. Brownell, the appellee, entered into a co-partnership in the boot and- shoe business, at Bloomington, this State, under the firm name of W. J. Brownell & Co. The partnership continued until on or about the 31st of January, 1883, when certain differences arose between them in respect to business transactions, some of which related to the partnership, and others did not. For the purpose of settling these differences and closing up their partnership affairs they entered into the following agreement:
    “Whereas, it is the desire of Elisha B. Steere and William J. Brownell to submit certain matters, hereinafter mentioned, to arbitration, and to close out the business of the firm of W. J. Brownell & Co.: Now, therefore, it is hereby agreed that the firm of W. J. Brownell & Co., composed of William J. Brownell and Elisha B. Steere, shall be and is hereby dissolved, except for the adjustment of the business of the said firm, which shall be done in the following manner: The store shall be closed immediately, and Elisha B. Steere, William J. Brownell, John P. McLean and M. J. Sliter shall take an invoice of the stock of goods now on hand, and when completed, the invoice, with the keys of the store, shall be delivered to Peter Whitmer, Lyman Ferre and Duncan Funk, who shall immediately offer such stock for sale to the said Steere and Brownell, and shall sell it to the one who stiall’ offer the largest per cent on the said invoice price; and upon the payment to such arbitrators of one-half of such bid, said arbitrators shall deliver the stock to such purchaser, and the lease of the building now occupied shall be assigned to the purchaser of the stock, and, retaining such money in their hands, the arbitrators shall immediately proceed to state the account between said Brownell and Steere touching the matters between them as such partners, and for such purpose shall have custody and control of all books and papers pertaining to such business.
    “And whereas, the said Brownell claims that the salary of John P. McLean should be paid by said Steere: therefore, the said arbitrators shall determine and decide whether such salary shall be paid by Elisha B. Steere or W. J. Brownell & Co. Touching all the matters pertaining to such partnership, the said William J. Brownell and Elisha B. Steere hereby appoint as arbitrators Peter Whitmer, Lyman Ferre and Duncan Funk, and agree that they make a report, in writing, of their finding and decision touching such partnership, which finding and decision the said Steere and Brownell hereby agree to accept and perform, and that upon such finding and decision a decree and supplemental decrees may be entered in the circuit court of McLean county.
    “And whereas, there are certain other matters outside of said partnership, among which are the following: First, Brownell claims that Steere is indebted to him on account of one promissory note, signed by Ira Lackey and John M. Major, and assigned by said Steere; second, Brownell claims that said Steere is indebted to him on account and for services rendered as clerk in the M. F. Case receivership business; third, said Steere claims that Brownell is indebted to him for board; and fourth, Steere claims said Brownell is indebted to him on account of certain deals on the board of trade in Chicago,—now, therefore, it is hereby agreed that each and all of the above mentioned claims, numbered 1, 2, 3 and 4, shall be and are hereby submitted to such arbitrators, which they shall consider, and find the balance that may be due from the one to the other, which balance they shall report, in writing, and a judgment of the said circuit court may be entered thereon according to such finding.
    “It is further agreed that the money in the hands of said arbitrators at the time of making their report upon an adjustment of accounts, both partnership and individual, between said Steere and Brownell, shall be applied, or as much as is necessary, in payment of such indebtedness, on the account stated. In the adjustment of all the above matters the said arbitrators shall be governed by the rules of law, as near as they can, but they shall not apply the Statute of Limitations.
    “Witness our hands and seals, this 3d day of January,
    W. J. Brownell, [Seal.]
    B. B. Steere. [Seal.] ”

      Pursuant to the above agreement and submission, the partnership goods were invoiced and sold to Brownell, who took possession of the same, together with the books, papers, etc., belonging to the firm. The arbitrators proceeded to hear and adjust the differences, and to state an account between the parties, which was not concluded until a considerable time afterwards. The parties and their counsel appeared before the arbitrators, from time to time, until they finished the business submitted to them, as they understood it, when, on the 6th day of April, 1882, they made and delivered to the parties, respectively, the following award:
    “Whereas, William J. Brownell and Elisha B. Steere did, by written submission, dated January 31, 1882, submit to the undersigned certain matters of difference between them, for our decision, as arbitrators; therefore, pursuant to said submission, we find and decide as follows, to-wit:
    We find that Brownell owes Steere—
    On account of sale of stock, - - - $6180.83
    On account of board bill, ----- 912.50
    On account of board of trade deal, - - - 350.14
    Total,.......$7443.47
    We find that Steere owes Brownell—
    On account of Major and Lackey note, dated December 31, 1874,.....$1438.00
    On account of Steere note, dated September 18,
    1875,........ 325.73
    On account of a judgment dated June 30, 1877,
    against Major and Steere, - - - - 735.20
    On firm account, ------ 1286.66
    Total,.......$3785.59
    —Leaving a balance due Steere of $3657.88, which we hold subject to his order. We further find, that pursuant to said submission we took possession of the stock of goods therein mentioned, and after the same had been invoiced, as therein provided, we put the same up for sale at auction, between said Steere and Brownell, and sold the same to Brownell for one hundred and four cents on the dollar, the whole sale amounting to $12,361.66. We find that said Brownell delivered money and collateral security to us sufficient to secure one-half of the purchase, as therein provided in the submission. We find that John P. McLean’s account, amounting to $4723.54, should be charged to Steere, the said account having been made on account of salary as clerk. We further find that if any additional claim is made by said McLean for services, the said Steere shall pay for the same. In stating the foregoing account, we have charged McLean’s account to Steere, and after so charging it, we find that Steere owes the firm of W. J. Brownell & Co. $2573.33 more than Brownell does. We further find that said parties, by agreement, withdrew from our consideration the account of Brownell against Steere, in the M. F. Case business.
    “Witness our hands and seals, this 6th day of April, 1882.
    Peter Whitmer, [l. s.]
    Lyman Ferre, [l. s.]
    D. M. Funk. [l. s.] ”
    The appellant not being satisfied with the award, filed a bill in the McLean circuit court to impeach it. Among other things, it is charged in the bill that the award “is not as broad as the submission,—i. e., that it does not include or dispose of a large number of disputed accounts that appear upon the books of the firm as firm accounts, which appellant claims of right and justice should be charged to appellee, and that each and all of them were specially submitted to the arbitrators, and their attention called to each of them, but they neglected, failed and refused to pass on them, or either of them, and that among them were the following: B. S. Miller, $50; M. Swan, $5.50: H. B. Cranmer, $10; Charles Boyce, $10; 0. Calkins, $5; Thomas Hatfield, $114.60; A. H. Moore, $288.90; Charles Dalton, $274.60; Thomas Coultis, $85; D. Bailey, $5 ; Charles Eager, $25; J. E. Pollock, $71.30.” The award is also assailed on other grounds not necessary to be mentioned. There was a hearing upon the merits, resulting in a decree dismissing the bill, which was affirmed by the Appellate Court for the Third District, from whence the complainant brings the case to this court for review.
    Messrs. Fifer & Phillips, and Mr. Hamilton Spencer, for the appellant, contended—
    First—That the award was prepared and written out by John E. Pollock, appellee’s attorney.
    Second—That it was not signed by the arbitrators at the same time or at the same place.
    Third—That the award was signed in the presence of John E. Pollock, appellee’s attorney, and in the absence of and without notice to appellant or his attorney. Those facts make the award void. Underwood v. Railway Co. 11 C. B. 442; Lord v. Lord, 5 E. & B. (85 E. C.) 404; Wright v. Graham, 3 Ex. 132; Wade v. Dowling, 4 E. & B. (82 E. C.) 46; Moore v. Ewing, Coxe, 144; Daniels v. Ripley, 10 Mich. 237; French v. Butler, 39 id. 79; Smith v. Smith, 28 Ill. 56.
    Fourth—An award must be as broad as the submission, and the omission of any matter submitted avoids the award. Smith v. Smith, 28 til. 56; Alfred v. Railroad Co. 92 id. 611; Shirfy v. Graham, 72 id. 159; 2 Parsons on Contracts, 847, 850; Thompson v. Blanchard, 2 Iowa, 44; Sharp v. Woodbury, 18 id. 195; Moss on Arbitration, 137, 346.
    Mr. John E. Pollock, for the appellee:
    Every intendment is made in favor of an award. Root v. Renwick, 15 Ill. 461; Haywood v. Harmon, 17 id. 477; Durst v. Collier, 86 id. 96; Henderson v. Reinbock, 33 id. 299.

      In the absence of the proof of fraud, it will be presumed that the arbitrators considered all the evidence, and allowed all items proved. Hadaway v. Kelly, 78 Ill. 286; Hubbard v. Firman, 29 id. 90.
    It is not necessary that the award should be signed at the same time and place. Blodgett v. Prince, 109 Mass. 46; Maynard v. Frederick, 7 Cush. 252; Sperry v. Rucker, 4 Allen, 18.
    An award prepared by an attorney of one of the parties, and signed in his presence, is not invalid.
    It is not necessary for the parties to be present when the award is signed. Roloson v. Carson, 8 Md. 22; Saunders v. Heaton, 12 Ind. 20. 3

    When separate and distinct matters are submitted, an award as to such matters will be upheld, although void as to certain other matters. Muldrow v. Norris, 2 Cal. 74; Reynolds v. Reynolds, 15 Ala. 398; Parmelee v. Allen, 32 Conn. 115; Walker v. Walker, 28 Ga. 140; Carson v. Earlyvine, 14 Ind. 256; Banks v. Adams, 23 Me. 259 ; Orcutt v. Butler, 42 id. 83; Cromwell v. Owens, 6 H. & J. (Md.) 10; Gibson v. Broodfoot, 3 Desau. (S. C.) 11; Catón v. McTavish, 10 G. & J. (Md.) 192; Gibson v. Powell, 13 Miss. 712; Barrows v. Capon, 11 Cush. 37; Chase v. Strain, 15 N. H. 535; Tracy v. Herrick, 25 id. 381.
    When a portion of the matters submitted is withdrawn from the consideration of the arbitrators, an award as to the remaining portion is valid. Ballance v. Underhill, 3 Scam. 453; Watson on Arbitration, 115-117.
   Mr. Justice Mulkey

delivered the opinion of the Court:

An examination of the oral testimony in connection with the submission shows that the differences between the parties which led to a dissolution of the partnership and the submission of. their disputes to arbitration, related mainly to certain partnership claims -which had been either paid by or were due to or from the firm, or had been paid by one or the other of the parties and claimed to be due from the firm. For illustration, it was claimed by Brownell, on the one hand, that a large amount of money and goods which had been drawn out of the firm by John P. McLean, for his services as clerk, should, under the circumstances, be charged up to Steere, individually. This the latter denied. On the other hand, there were certain unpaid accounts on the partnership books, due the firm from various persons,, which were evidently regarded by both parties as doubtful or desperate claims, and which Steere insisted, under the circumstances, ought to be charged up to Brownell’s account. This claim of Steere was, in effect, partly conceded before the arbitrators, but not fully, and hence there was an unsettled difference between the parties in respect to them, which was clearly covered by the submission. The claims here referred to are those against Miller, Swan, and others, specifically set forth in the bill, as well as in the statement which precedes this opinion. An examination of the award shows that the arbitrators made no disposition whatever of these claims, thus leaving, as it would seem, one of the chief objects of the arbitration unattained,—namely, 'the settlement of all differences relating to their partnership matters.

That these claims were presented by Steere to the arbitrators for adjustment, is clearly and satisfactorily shown by the evidence. Indeed, it is not seriously controverted, but the contention rather is, that after they had been presented, and some discussion had occurred between the parties in respect to them, they were voluntarily withdrawn, upon the understanding that the parties themselves would settle them. We have no hesitancy in saying this position is not sustained by the proofs. On the contrary, we are of opinion that the decided weight of evidence shows that nothing of this kind occurred. The whole trouble in the case has evidently grown out of a misapprehension on the part of the arbitrators in respect to the scope and extent of the submission, and the inferences they were authorized to draw from the statements made by Steere and Brownell before them, concerning these claims. This is clearly shown by the testimony of Peter Whitmer, one of the arbitrators. In speaking of these claims he says: “We (meaning the arbitrators) understood the articles by which we were governed did not include the settlement of these accounts, * * * and Brownell agreed, in the presence of Steere, to be personally responsible for a number of these accounts, if they were not collected.” Taking the view the arbitrators did in respect to their right, under the submission, to consider these accounts, they would hardly have made any award concerning them, in any event; but assuming they would but for what was said about them by Steere and Brownell, it is very clear the arbitrators drew an unwarranted inference from the language used, for, according to the decided weight of testimony, there was nothing said by either of them that justified the conclusion that the accounts were withdrawn from the consideration of the arbitrators. The facts, as we understand them from the proofs, are simply these: Steere brought the claims before the arbitrators, and insisted they should be charged up to Brownell. The list was gone over, and discussed between the parties, in the presence of the arbitrators. As to some of them, Brownell said he would pay them if not collected from the parties owing them, as soon as he could collect of the firm accounts a sufficient amount to enable him to do so, out of his share of the proceeds, after having first paid the debts due from the firm. As to others, he said he would settle them in the same way if the firm was not liable for them. By this we understand him to have meant, that, assuming the claims proved uncollectible, he would stand the whole loss if it was not properly chargeable to the firm. This conditional promise was, of course, leaving the very question in dispute (namely, Brownell’s exclusive liability,) still open for further controversy—the very thing sought to be avoided by the arbitration. As to another of the claims, Brownell proposed to settle it provided he could do it by setting it off against a claim the one owing it had against the firm. Now, there is clearly nothing in all this that justifies the conclusion that the accounts in question were withdrawn from the consideration of the arbitrators. To make the case much stronger upon appellee’s theory of it, let us suppose that when Steere presented these accounts, and assigned the reasons why they should be charged up to Brownell, individually, the latter had said, in response, “I concede the justness of what you say in respect to these claims, and promise you I will become personally responsible for them, and settle them just as soon as collections will enable me to do so,” and Steere had rejoined, “That is satisfactory,”—would this have authorized the arbitrators to take no account of the claims in stating the account between the parties ? Surely not. The only effect of the statement would have been to relieve Steere from the burden of proving such facts and circumstances as would have shown that the accounts in question should, in justice, be charged up to Brownell, individually. Upon such a statement of the parties it would clearly have been the duty of the arbitrators, in stating the account, to have charged these claims up to Brownell, without further proof. If this be true, of which there are no just grounds to doubt, it will not be pretended the action of the arbitrators can be sustained. These claims having been specifically submitted, they should have been passed upon by the arbitrators. If the evidence was sufficient to charge Brownell, they should have been allowed, otherwise they should have been rejected. This was not done, as appears not only from the evidence, but from the face of the award itself. This was a serious error, directly affecting the validity of the award.

As to the claim that the arbitrators willfully disregarded the law in the discharge of their duties, we see nothing in the record to warrant it. Nor do we see anything substantial in the objection that the award was prepared by one of the attorneys, as there is nothing tending to show it did not fully express the findings and conclusions of the arbitrators. An award should not be set aside on merely technical grounds, that in nowise affect the merits of the controversy, especially where it is apparent, as it is here, the utmost good faith has been observed.

The objection that the award was not signed by all the arbitrators at the same time and place, we regard in the same light. It is sufficient that it was signed by them after then-work was completed and their deliberations had closed, and that the writing signed fully expresses the conclusions reached by them. Such was the case here. Blodgett v. Prince, 109 Mass. 46; Maynard v. Frederick, 7 Cush. 252.

The judgment, however, for the reasons stated, will have to be reversed, and the cause remanded to the Appellate Court, with directions to that court to reverse the decree of the circuit court and remand the cause for further proceedings not inconsistent with this opinion.

Judgment reversed.


author: Mr. Chief Justice Scholfield

text:
    Clara E. Burnham et al. v. John W. Kidwell.

      Filed at Springfield

      March 30, 1885.

    1. Idiocy—deed by an idiot—whether void, or only voidable. A deed made by a person before he is adjudged to be an idiot, like the deed of an infant, is not void, but is voidable only.
    2. Same—the statute as to the conditions to a valid deed—construed. Section 1, chapter 30, of the Revised Statutes of 1874, to the effect that every deed, etc., not procured by duress, but signed, sealed, etc., the maker being of full age, sound mind, and discovert, shall be sufficient, simply declares that certain things shall constitute a good deed,—it does not, by implication, negative that a good deed can in no otherwise be made.
    3. Same—setting aside deed made by an idiot—upon terms. Where land is bought of a person before he is adjudged an idiot, in good faith, by the purchaser, or money is loaned to him in good faith, and he secures its payment by mortgage, and the proceeds of the sale or loan are expended in and about his care and support, the deed or mortgage can not be avoided until the money so received by the idiot is returned, or offered to be returned.
    Appeal from the Circuit Court of McLean county; the Hon. Franklin Blades, Judge, presiding.
    This was an action of ejectment, brought by John W. Kid-well, an idiot, as plaintiff, by J. M. Crigles, his conservator, against Mary A. and Clara E. Burnham, and their tenant, for one-half of the premises in dispute. On a trial by the court, without a jury, the plaintiff obtained judgment for the recovery of the premises, and the defendants perfected .this appeal.
    Mr. Hamilton Spencer, and Mr. W. E. Hughes, for the appellants:
    The statute makes contracts of an idiot, after the finding of a jury, void; but if made before the finding, they are only voidable. The statute does not, by express terms, include deeds and conveyances in its provisions, but deeds and conveyances are contracts, after all; and outside of the statute, the authorities are overwhelming that the deed of a person of unsound mind, if made before inquest found, is not void, but is only voidable. Crouse v. Coleman, 19 Ind. 30; Breckenridge v. Ormsby, 1 J. J. Marsh. 236; Summers v. Pumphrey, 24 Ind. 231; Kates v. Woodson, 2 Dana, 452; Allis v. Billings, 6 Metc. 415; Hovey v. Hobson, 53 Maine, 451; Arnold v. Richmond Iron Works, 1 Gray, 434; Ingraham v. Baldwin, 9 N. Y. (5 Seld.) 45; Cook v. Parker, 5 Phil. (Pa.) 265.
    Neither the grantor nor his conservator can disaffirm the contract in any court without first refunding the purchase money, and expenditures for taxes, etc. Jennings v. Gage, 13 Ill. 610; Tisdale v. Buckmore, 33 Maine, 461; Knocke v. Rucks, 34 Miss. 105; Evans v. Gale, 17 N. H. 573; Otter v. Stuart, 30 Barb. 20.°
    A party can not affirm a contract in part and rescind it as to the residue. If he rescinds, he must do so in toto,—he must put the opposite party in as good condition as he was before the sale was made. Wolf v. Dietzsch, 75 Ill. 205; Buchenau y. Horney, 12 id. 338.
    A party can not rescind a contract of sale and at the same time retain the consideration he has received. He must put the other party in as good condition as before the sale, by a return of the property purchased. Smith v. Brittenham, 98 Ill. 188; Hamilton v. Manufacturing Co. 54 id. 370; Buchenau v. Horney, 12 id. 338.
    To rescind an executed contract, there must be both mental weakness and also imposition or undue influence. Miller v. Craig, 36 Ill. 110.
    Messrs. Kerrick, Lucas & Spencer, for the appellee:
    We do not think it is very important to inquire whether the deed is void or voidable, as, in either instance, we think both judgments must be affirmed. It is provided by the statute: “That livery of seizin shall in no case be necessary for the conveyance of real property, but every deed, * * * not procured by duress, * * * the maker being of full age, sound mind, and discovert, shall be sufficient, without livery of seizin. ” (Rev. Stat. chap. 30, sec. 1.) So, at least by implication, the General Assembly has said that the deed of a person not of sound mind should not be sufficient to convey real estate.
    There is a conflict in the authorities as to whether the deed of an idiot is void, or merely voidable. A number of the ablest courts have-held it absolutely void, (VanDusen v. Sweet, 51 N. Y. 384, Farley v. Parker, 6 Ore. 105, and Dexter v.
      Hall, 15 Wall. 24,) while others have held it only voidable. Allis v. Billings, 6 Metc. 415 ; Gibson v. Soper, 6 Gray, 279; Hovey v. Hobson, 53 Maine, 455; Chew v. Bank of Baltimore, 14 Md. 308.
   Mr. Chief Justice Scholfield

delivered the opinion of the Court:

The question whether a deed made by an idiot or lunatic, before the fact has been found by a jury and a conservator appointed, is void, or only voidable, can hardly be regarded as open to argument, in this State. The first section of our statute in relation to idiots, lunatics, etc., provides for the impaneling of a jury to find whether a person is an idiot or lunatic, and requires the court to appoint a conservator, when he shall be so found. The 14th section of the same statute declares that “every note, bill, bond, or other contract, by any idiot, lunatic, etc., * * * made after the finding of the jury, as provided in section 1 of this act, shall be void as against the idiot, lunatic, etc., s * * and his estate. ” But by the next section (section 15) it is provided: “Every contract made with the idiot, lunatic, etc., * * * before such finding, * * * may be avoided, except in favor of the person fraudulently making the same.” (Rev. Stat. 1874, chap. 86.) Since a deed is but one form of a contract, it is necessarily included in the word “contract,” as here used. 1 Chitty on Contracts, (11th Am. ed.) 4; Bishop on Contracts, sec. 14.

Counsel for appellee, however, quote from section 1, chapter 30, of the Revised Statutes of 1874, to the effect that every deed, etc., not procured by duress, but signed, sealed, etc., the maker being of full age, sound mind, and discovert, shall be sufficient, etc., and insist that this, by implication, declares that one not of sound mind can not convey. This section simply declares that certain things shall constitute a good deed. It does not negative that a good deed can in no otherwise he made. It places idiots, lunatics and minors in the same class,—that is, excludes each,—and yet nothing is better settled by the adjudications of this court than that the deeds of infants are not void, but voidable only, (Keil v. Healey, 84 Ill. 104, Cole v. Pennoyer, 14 id. 158, and Blankenship v. Stout, 25 id. 132,) and, necessarily, the implication contended for is not warranted. Moreover, in Scanlan v. Cobb, 85 Ill. 296, we expressly held that such a deed is voidable. Numerous decisions of other courts, not referred to in the opinion in that case, might be referred to in support of the doctrine, but it can not be necessary. The statute itself so declares, and that is conclusive.

Mrs. Carson and the appellants appear to have been purchasers in good faith and without notice, and it is quite clear that the original loan, to the extent it was made an incumbrance on the idiot’s land, was made for the benefit of the idiot, and that it was, in good faith, expended about his care and support.

Although we have spoken of this party as an idiot, it is proper to be observed he is not entirely without mind, nor is he universally esteemed an idiot. Some testimony is adduced that he is not an idiot at all, and all that can be fairly deduced from the testimony, when all considered together, is, that he is weak-minded to a degree rendering him incompetent to successfully conduct business.

No offer has been made, either before or since bringing suit, to reimburse to the parties the money of which the idiot has thus had the benefit. He can not retain this money and still recover back the land. Scanlan v. Cobb, supra; Eaton v. Eaton, 37 N. J. L. (8 Vr.) 108; Lincoln v. Buckmaster, 33 Vt. 659; Carr v. Halliday, 5 Ired. Eq. 67.

The judgment is reversed and the cause remanded.

Judgment reversed.


author: Mr. Justice Craig

text:
    Thomas Young et al. v. Sarah A. M. Young et al.

      Filed at Springfield

      March 30, 1885.

    1. Rescission of conté act—in equity—inadequacy of consideration ' —natural love and affection, as a consideration. A conveyance of land by a father to his son, not in fraud of creditors, may be sustained on the ground of natural love and affection, without the promise or payment of any money or other valuable consideration.
    2. So the mere fact that a son did not pay or agree to pay the value of land conveyed to him by his father, can not defeat the title he acquired in that way, and affords no ground for setting the same aside, in equity.
    3. Same—rescission on the ground of fraudulent representations. To justify the rescission of an executed contract of sale for fraud on the part of the grantee, it is not only necessary to show misrepresentations of facts by clear proof, but such misrepresentations must be about matters material to the interest of the grantor. If relating to an immaterial thing, or it is the expression of a mere matter of opinion, or relates to a fact equally open to the inquiry of both parties, a court of equity will not set aside the conveyance on the ground of fraud.
    Writ of Error to the Circuit Court of Shelby county; the Hon. Jesse J. Phillips, Judge, presiding.
    Mr. Anthony Thornton, and Messrs. Hamlin & Holloway, for the plaintiffs in error:
    The value of the land is shown to be $2600. The consideration expressed in the last deed is $100. No money was paid, nor was there any agreement to pay any.
    When a deed expresses a pecuniary consideration, and it is impeached for undue influence and fraud, the gelation of parent and child can not be set up to sustain the deed. Kerr on Fraud and Mistake, 191, 192; Clarkson v. Hanway, 2 P. Wms. 203.
    The consideration expressed is so inadequate as to show imposition and oppression. McArtie v. Engart, 13 Ill. 248.

      Gross inadequacy of consideration is strong evidence of fraud. Lowther v. Lowther, 13 Ves. 103; Underhill v. Harwood, 10 id. 219; 1 Story’s Eq. Jur. sec. 240; Judge v. Wilkins, 19 Ala. 765.
    A false representation "which influences a party, and causes him to make a contract, will avoid it, whether the party making the same knew its falsity or not. Lockbridge v. Foster, 4 Scam. 573; Whelan v. Whelan, 3 Cow. 537.
    Where a deed is obtained without any consideration paid, and by deceit and false representations, the transaction can find no sanction in a court of justice. White v. White, 89 Ill. 464.
    Messrs. Moulton, Chaffee & Headen, for the defendants in error:
    Even if the representations were false and fraudulent, it must appear that the party was influenced by them, relied on them, and would not have acted except by reason of such representations. Douglass v. Littler, 58 Ill. 342; Tuck v. Downing, 76 id; 71; Fauntleroy v. Wilcox, 80 id. 477.
    Parol evidence to defeat a deed must be clear and con-. vincing. Wilson v. McDowell, 78 Ill. 514.
    The presumption is that all deeds are made in good faith and without fraud. O'Neal v. Boone, 82 Ill. 589.
    The party must rely upon the representations. If the means are readily opien to him to ascertain their truth or falsity, and he does not inform himself, he can not complain. 3 Scam. 32.
    The declarations of parties have always been considered competent and important evidence to explain their acts and intentions. Redfield on Wills, (1st ed.) sees. 34-37, 42, 43, and note 39; Taylor v. Kelly, 31 Ala. 59 ; Neal v. Potter, 40 Pa. St. 000; Uhlich v. Muhlke, 61 Ill. 513;. 1 Greenleaf on Evidence, sec. 108.
    The violation of a parol promise to convey or reconvey land, will not constitute such a fraud as to take a case out of the Statute of Frauds. Rogers v. Simmons, 45 Ill. 76; Perry v. McHenry, 13 id. 236.
    A voluntary conveyance is good between the parties. Willemin v. Dunn, 93 Ill. 511; Loivery v. Orr, 1 Gilm. 85.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by John Young, against Sarah A. M. Young, and others, heirs at law of Samuel Young, deceased, to vacate and set aside a certain deed executed by the complainant on the 30th day of December, 1878, wherein certain lands in Shelby county, consisting of one hundred and thirty acres, were conveyed to Samuel Young. On the hearing, the court denied the relief prayed for by complainant, and entered a decree dismissing the bill, and plaintiffs in error, heirs at law of John Young, who died pending the litigation, have sued out this writ of error, for the purpose of reversing the decree of the circuit court.

The facts out of which this litigation arose are not complicated, and may be briefly stated. In 1873 a difficulty arose between complainant, John Young, and his wife, Gilla Young, and the latter instituted suit against her husband for divorce. On the 23d day of December of thakyear the parties met for the purpose of making a settlement, and an agreement as to a divorce and alimony was concluded between the parties, and for the purpose of carrying out that agreement, John Young and his wife conveyed a farm to one Joseph Prickett, containing two hundred acres of land. Prickett then conveyed . to Gilla Young seventy acres of the land, and at the request of John Young the remaining one hundred and thirty acres was conveyed to his son, Samuel Young. The legal title to the land conveyed to Samuel remained in his name until December 30, 1878, when Samuel Young conveyed the land to John Young, and John Young, by general warranty deed, on the same day reconveyed to Samuel. After this last conveyance, Samuel held the title to the land until 1881, when he died intestate, and it descended to his heirs, who were made defendants to the bill, in which, among other things, complainant prayed that they be decreed to convey to him.

The grounds relied upon in the amended bill to defeat the conveyance, are, in substance, as we understand them, inadequacy of consideration, false representations, and undue influence.

As respects the consideration for either of the deeds which were made to Samuel, it may be conceded that Samuel did not pay or agree to pay the value of the land; but that fact can not defeat the title which he acquired through -the conveyance. Samuel did not pretend to purchase the lands of his father and pay their value. His title rests upon other grounds. John Young had the right to give the lands to his son, and where creditors are not complaining, natural love and affection are a sufficient consideration to uphold and sustain the conveyance,—and so far as the question of consideration is involved, this is the ground upon which the deeds from the father to the son must be sustained. If John Young saw proper to give the lands to his son, Samuel, he at the time not being indebted, he had the right to do so, and it was not necessary that a money consideration should pass, in order to sustain the conveyance.

We now come to the other ground relied upon to defeat the title,—false representations and undue influence. In December, 1873, when the first deed was made to Samuel, he was not present, and, so far as is shown by the evidence, he did not then, or at any time previous, use influence of any kind to induce his father to convey, or cause to be conveyed, the lands to him. The conveyance thus made was a voluntary act on behalf of John Young. No inducements were held out or promises made to influence him in the disposition of the lands. At the time this deed was executed, Young was sixty-nine or seventy years of age, but his age had in no manner impaired his mental faculties, and he was as capable then of transacting business as he was in the earlier part of his life. His age, therefore, had no effect upon the validity of the transaction. The- same is true in regard to the condition of Young when he made the deed in 1878. During that fall he had been sick for a time, in Kansas, but we find no evidence in the record from which the conclusion can be drawn that he was incompetent to transact ordinary business.

But it is said that Samuel Young made to his father false representations to induce the execution of the deed, and that he also made promises which be never intended to fulfill. There was evidence introduced by complainant that Samuel said to his father, “If, you deed the land to me, I will deed it back any time you want it. ” Also, that Samuel told his father that McKay was about to sue him for $600 or $700. The old man said, “I don’t owe it, and I wo’nt pay it.” Samuel said he would have to pay it if sued, and that the best thing the old man could do would be to convey his land to him, and save the trouble of going to Shelbyville. These, in substance, are the representations relied upon as false and fraudulent, to impeach the deed. In Tuck v. Downing, 76 Ill. 71, it was held: “To justify a court of equity in rescinding a contract of sale, it is not only necessary to establish the fact of misrepresentation by clear proof, but it must be about a material matter, or one important to the interest of the party complaining, for if it was of an immaterial thing, or if the party did not trust to it, or if it was a matter of opinion or fact equally open to the inquiries of both parties, and in regard to which neither could be presumed to trust the other, there is no reason for equity to interfere or grant relief, on the ground of fraud.” If Samuel promised to deed the-land back, what reliance was placed upon a mere naked verbal agreement of this character ? The complainant was a man of ordinary intelligence, and doubtless placed no reliance on such an agreement,—at least there is no evidence tending to show that he relied on the promise, or that he ever expected it to be fulfilled, as he repeatedly told witness after witness, after the deed was made, that the land was given to Samuel, and it should be his. Why make those declarations, if he relied upon a verbal promise to have the land deeded back to him ? As to the other declaration relied upon to defeat the deed, it has no foundation to stand upon. McKay, who, it was alleged, was about to sue the complainant, resided less than two miles from Young, and by going to him the truth in regard to the threatened suit might have been ascertained, and it w7as the duty of Young to go to him and learn the truth, rather than rely on the statement of Samuel. It was a matter, as held in the ease cited supra, equally open to the inquiries of both parties.

But, independent of these considerations, the testimony is clear and convincing that John Young had given the land to his son, and was not actuated by any declaration or statement that Samuel had made to him on the subject. From 1873 down to 1883, the complainant, at various times and in the presence of a number of different persons, declared that he intended his son, Samuel, to have the land,—and even after the death of Samuel he stated that the land belonged to his children, and they were to 'have it. As early as 1874, when complainant heard that Cross and Benfro, two sons-in-law, had said they would “break the deed” he had made to his son, he declared that he intended Samuel to have the land, and if the first deed was not good he would make one that was. This was repeated on several different occasions. Some ten or twelve witnesses 'testify to the declarations of complainant, before and after the making of the last deed, that he had given the land to Samuel, and he should have it. These often repeated declarations show, plainly, that the deed was not procured by fraudulent representations or promises of the grantee, but, on the other hand, that complainant had of his own free will and accord conveyed the land to his son, Samuel.

We think the decree of the circuit court is fully sustained hy the evidence, and it will be affirmed.

Decree affirmed.


author: Mr. Justice Sheldon

text:
    William Beeler v. Stephen C. Webb.

      Filed at Springfield

      March 30, 1885.

      1. Evidence—admissions by one pf several defendants—against whom to be received. In an action on the case against two for enticing away the wife of the plaintiff, the declarations and conversations of the defendant with whom the wife eloped, during his absence with her, before proof of any conspiracy between the defendants, and his declarations after his return and after the conspiracy was consummated, were admitted in evidence on behalf of the plaintiff, the court, however, limiting it in its effect to the person who made the declarations. On objection by his co-defendant, it was considered that the matters proven did not at all affect him, and evidence concerning the declarations was certainly admissible against the one who made them.
    2. Same— of the sufficiency of an interrogatory as ground for exception that evidence concerning a particular matter had been excluded. In an action by a husband against parties for enticing Ms wife to elope with one of them, counsel for the defendants asked a witness: “I will ask you if she (the wife) was living there (at her father’s) at the time they made a wedding feast and W. (the plaintiff) failed to appear:” Held, that the question would not support an exception of the exclusion of evidence to show preparations had been made for a wedding, and that the wedding had been appointed to take place at several times, and that the plaintiff disappointed his intended wife by failing to appear. There should have been direct inquiry as to those facts, in order to found an exception to the exclusion of a question concerning them.
    3. Appeal— question of excessive damages—whether cognisable in the Supreme Court. Where the Appellate Court fails to reverse a judgment in an action sounding in tort, on the ground that the damages are excessive, the question of the excessiveness of the damages can not be considered in tMs court.

      Appeal from the Appellate Court for the Third District; —heard in that court on appeal from the Circuit Court of McLean county; the Hon. Owen T. Reeves, Judge, presiding.
    Mr. J. S. Neville, and Mr. J. E. Pollock, for the appellant:
    It was error to admit Burns’ declarations before a conspiracy was proved. Danville Bank v. Waddell, 31 Gratt. 484; 2 Best on Evidence, sec. 508; 1 Greenleaf on Evidence, sec. Ill; 1 Wharton on Evidence, secs. 1200-1206.
    The declarations of a co-conspirator can not be given in evidence as against another, if made after the conspiracy was consummated. Benford v. Sanner, 40 Pa. St. 9; Foster v. Thrasher, 45 Ga. 517; Dart v. Walker, 3 Daly, 136; State v. Jackson, 29 La. Ann. 354; Reid v. Louisiana State Lottery Co. 29 id. 388; Lyons v. State, 36 Miss. 617; Garrard v. State, 50 id. 147; Hunter v. Commonwealth, 7 Gratt. 641; People v. Moore, 45 Cal. 19.
    Evidence was offered to prove that preparations for the marriage of Webb and Mattie had been made several times. Each time 'the day was set and the-wedding feast was made ready, and each time Webb disappointed her. This was surely proper in mitigation of damages, and as tending to show Webb’s estimation of his future wife. Preston v. Bowers, 13 Ohio St. 1.
    The damages are excessive. That a verdict may be set aside on this ground, see Haywood v. Merrill, 94 Ill. 349; Thompson v. Clendening, 1 Head, 287; Crose v. Rutledge, 81 Ill. 266.
    Messrs. Fifer & Phillips, for the appellee:
    In cases of conspiracy, the declarations and acts of one in pursuance of the original plan, are evidence against all. They may be shown before proving the conspiracy. 1 Greenleaf on Evidence, sec. 111; 2 Wharton on Evidence, sec. 1205; 2 Best on Evidence, sec. 508 ; Railroad Co. v. Collins, 66 Ill. 212; Philpot v. Taylor, 75 id. 309; Wilson v. People, 94 id. 299.
    But Bums made no declarations which in any way affected Beeler. They related alone to his own conduct.
    The question excluded did not ask as to the fact whether a wedding feast had been prepared, etc. It was but an insinuation of counsel.
    Whether the damages found by the jury are excessive, can not he considered as a question of law, open to review in this court. Mann v. McKiernan, 110 Ill. 19; Pullman Palace Car Co. v. Bluhm, 109 id. 20.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an action in case, brought by Stephen C. Webb, against William H. Burns and William Beeler, for enticing away the wife of Webb, and inducing her to elope with Burns. Burns was defaulted, and there was a plea of the general issue as to Beeler. Upon a trial had, a verdict and judgment were rendered against the defendants. The judgment was affirmed by the Appellate Court for the Third District, and Beeler appeals to this court.

It appears that Burns and Webb were rival suitors of Mrs. Webb before her marriage with Webb, which took place on August 31, 1882. On September 17, 1882, Burns induced Mrs. Webb to leave her husband and go off with him. They stayed away together about one week, going to Chicago and other places, and were doubtless holding illicit relations during the time. Aftei; her return, Webb took his wife home, and has been living with her ever since. The charge against Beeler, the father of Mrs. Webb, is, that he aided, assisted and conspired with Burns in bringing about the elopement.

It is assigned for error that the trial court improperly admitted in evidence the declarations and conversations of Burns during his absence with Mrs. Webb, before a conspiracy "was proven, and also those made after his return, and after the conspiracy was consummated. The court, in admitting the evidence, limited it in its effect to Burns; and, besides, the evidence did not at all affect Beeler. We find no error in the admission of this testimony. It was certainly admissible as against Burns himself.

It is alleged that evidence was offered to prove that preparations for the marriage of Webb and Miss Beeler had been made several times,—that each time the day was set and the wedding feast was made ready, and each time Webb disappointed her,—which the court erroneously excluded. All the basis for this which we discover in the record, is the exclusion of the following question: “I will ask you if she (Mrs. Webb) was living there (at her father’s) at the time they made a wedding feast and Webb failed to appear.” The question did not ask for the fact whether a wedding feast had, or not, been made and Webb failed to appear, but insinuated an assertion of counsel to that effect into an inquiry upon a different subject. There should have been direct inquiry as to that fact, in order to found an exception to f¡he exclusion of a question concerning it.

It is complained that the damages are excessive. They may be so under the circumstances of this case; but the responsibility for sustaining the judgment against that objection is with the Appellate Court. We can not review its judgment in this respect. Pullman Palace Car Co. v. Bluhm, 109 Ill. 20; Mann v. McKiernan, 110 id. 19.

The judgment must be affirmed.

Judgment affirmed.


text:
    William Beard v. R. C. Maxwell, Admr.

      Filed at Springfield

      March 30, 1885.

    1. Appeal—reviewing facts—and for what purpose. In an action to recover damages arising from negligence, this court is precluded from investigating controverted questions of fact from the evidence. It can look into the evidence only for the purpose of enabling it to pass upon the propriety of the instructions given, refused or modified.
    2. Error will not always reverse—refusing instructions. Where this court is able to see that substantial justice has been done, and that an error in the giving or refusing of an instruction could not have changed the result, such error will not require a reversal, especially when it is apparent that the same result would follow on a new trial.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Logan county; the Hon. George W. Herdman, Judge, presiding.
    Mr. A. G. Jones, and Messrs. Blinn & Hoblitt, for the appellant.
    Messrs. Beach & Hodnett, and Mr. S. L. Wallace, for the appellee.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Some time in May, 1882, H. G. C. Miller, appellee’s intestate, entered the service of William Beard, the appellant, to work as a hand in sinking a coal shaft. About the middle of December, following, while Miller was being hoisted to the top of the shaft, the machinery used for that purpose got out of order, whereby his ascent was suddenly arrested. Upon this happening, he was directed by some of the operatives at the top of the shaft, to catch hold of the bunting or partition that extends up and down the shaft, dividing it into two compartments. While in the act of doing this, and while one of his feet was still in the tub or bucket in which he was being drawn up, the machinery suddenly started again, whereby he was thrown to the bottom of the shaft, a distance of some two hundred and fifty feet or more, causing his death. The present action was brought by appellee, as administrator of Miller, against Beard, as master and proprietor of the machinery and shaft in question, to recover damages on account of Miller’s death thus occasioned.

The declaration charges the defendant with-negligence in providing defective and unsafe machinery, including an old, worn-out engine, whereby appellee’s intestate lost his life. Other acts of negligence are charged, but in the view we take of the case they do not require special notice. The various charges of negligence in the declaration were formally traversed by the defendant’s plea of not guilty. The cause was heard before the Logan county circuit court, resulting in a judgment in favor of the plaintiff for $1500, which was affirmed by the Appellate Court for the Third District, and the present appeal brings before us for review the judgment of the latter court.

Although the record and abstracts in this case are very voluminous, and the briefs of counsel take a somewhat extended range, yet the case itself, so far as- this court is concerned, is confined within very narrow limits. While much of appellant’s brief is occupied with a discussion of the facts and the force and effect of the testimony, yet that is a matter (as we have too often had occasion to say) with which we have no concern, except so far as it may have a bearing on the rulings of the court in the giving, refusing or modification of instructions. The only questions arising upon this record which this court has any power or jurisdiction to consider, are presented by the instructions given to the jury on behalf of appellee.

In considering an instruction, this court may look at the evidence for two purposes: First, to determine whether it announces a correct proposition of law as applicable to the facts in the case; and second, assuming it does not, the court will then look at the evidence to determine whether the jury may have been misled, or the party against whom it was given may have been otherwise prejudiced by it. If, after having thus considered it, this court is of opinion that "substantial justice has been done, and that the instruction, though erroneous, could not, under the circumstances, have affected the result, it will not reverse for that reason. The same rule will apply to a refused instruction which should have been given. In such case, if this court, upon looking at the evidence, is able to say the giving of the instruction could not have changed the result, it will not reverse for that reason, especially if the conclusion reached is clearly warranted by the evidence, and another trial would probably result the same way.

Numerous objections are urged by appellant to the instructions given in this case on behalf of appellee, some of which we regard as wholly without merit, while others are not altogether without foundation. Viewing the instructions, however, as a whole, we think they are substantially correct, and considering them in the light of the evidence, we are satisfied the slight departures in some of them from technical accuracy could not have made any difference in the result, • and therefore, under the- rule stated, afforded no ground for a reversal.

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

Judgment affirmed.


author: Per Curiam :

text:
    William Hollingsworth v. O. W. Koon et al.

      Filed at Ottawa

      March 27, 1885.

      Appeal—whether a freehold involved. On bill to redeem from a mortgage no freehold is involved, and a decree thereon may be reviewed in the Appellate Court.
    Writ of Error to the Appellate Court for the Second District ;—heard in that court on writ of error to the Circuit Court of Iroquois county; the Hon. Franklin Blades, Judge, presiding.
    Messrs. Doyle, Morris & Pierson, for the plaintiff in error.
    Mr. C. H. Wood, for the defendants in error.
   Per Curiam :

This was a bill brought by William Hollingsworth, against 0. W. Koon, and others, to redeem from certain mortgages. The circuit court, on the hearing, rendered a decree fixing the amount due on the mortgages, and allowed a redemption upon the payment of the same. To reverse this decree, Hollingsworth removed the cause, by writ of error, to the Appellate Court for the Second District. That court being of opinion that a freehold was involved, on the 26th of June, 1SS3, entered an order dismissing the writ of error. The present writ of error is brought to reverse the order of the Appellate Court.

It is clear that, under the decisions of this court, no freehold is involved in the case, and the Appellate Court consequently erred in dismissing the writ of error to the circuit court.

The judgment of the Appellate Court is reversed, and the cause remanded, with directions to set aside the order of dismissal, and to hear and dispose of the cause on its merits.

Judgment reversed.


text:
    Prentiss D. Cheney et al. v. Frederick H. Teese et al.

      Filed at Springfield

      March 30, 1885.

      1. Appeal—when freehold was involved, but not brought in question-on the appeal—as to the portion of a decree not involving the freehold. Although a freehold may have been involved in a litigation, and decree rendered therein, yet when no objection is made to the decree so far as it settles the freehold, an appeal from another part of the same decree, having no relation to the question of the freehold, but merely settling a matter of account, will not lie from the circuit court to this court, but must be taken to the Appellate Court.
    Appeal from the Circuit Court of Christian county; the Hon. Jesse J. Phillips, Judge, presiding.
    This was a bill in chancery brought by Prentiss D. Cheney to obtain a construction of a will. The appeal from the original decree will be found reported in 108 Ill. 473.
    Mr. H. M. Vandeveer, for the appellants.
    Mr. James C. Conkling, for the appellees.
    Mr. W. M. Provine, for George E. Maxon, receiver.
   Mr. Justice Craig

delivered the opinion of the Court :

The ease of Cheney v. Teese, out of which this litigation grew, was before us at the January term, 1884, when the decree of the circuit court was reversed and the cause remanded. (See Cheney v. Teese, 108 Ill. 473.) The record, as then presented, involved a freehold. After the remanding order was filed in the circuit court, and on the 18th day of April, 1884, a final decree upon the merits of the cause was rendered, in conformity to the decision which we had ren-' dered at our January term. This decree settled thé rights of the parties as to the title to the lands involved in the litigation, and seemed to be satisfactory to all the parties in interest, as no exception was taken to the decree, nor did any of the parties appeal or sue out a writ of error to reverse the decree. The receiver, who had been previously appointed, was by this decree relieved from all further duty, and required to report his doings, as such receiver, to the court. In obedience to this order the receiver presented a report, which purported to show amounts received and disbursements made as such receiver. Various objections were interposed to this report, and the court made an order referring the report to the master in chancery to state an account. Some of the objections to the report the master sustained, and others were overruled. The result of the master’s action was as follows:

The master charged the receiver— ' >

For report April 7, 1883,.....- $1650.35

"Wheat,......- - - - 1638.08

Oats,........... 288.31

Corn,.......... 922.55

Hay,...........51.09

Eye,.......... 1.37

Gash rent,......... 499.50

Interest,......... 37.74

Total, $5088.99

"And gave the receiver credit for— '

All items shown,.....$1094.60

Salary,....... 800.00

-- 1894.60

Leaving a balance in hands of receiver of - $3194.39

Exceptions were filed to this report, a few of which were allowed, but in the main the action of the master was sustained by the court, and at the June term of the court the following order was entered:

“Final order made at the June term, on August 15, 1884, upon the matters arising upon the reports of the receiver, and the exceptions thereto, and upon the reports of the master, and the exceptions thereto. And the court having heard the same, finds, from the evidence so taken and reported, that George E. Maxon, as receiver, has received the sum of $5127.97, and that he has expended in and about the property in his custody, as receiver, the sum of $844.60, and that such expenditure was necessary and proper; and further finds that said receiver is entitled to reasonable compensation for his services as such, and that the sum of $1050 is reasonable ; that said compensation should be treated as costs; that the fund in his hands is primarily liable for its payment, and the receiver is entitled to retain his compensation out of the funds in his hands; that the receiver pay to the complainants the sum of $3233.37. It is further ordered that the costs made on the reference to the master of the receiver’s report, be paid in the following proportion: By the complainant P. D. Cheney, five-fifteenths; by the complainant A. M. Cheney, four-fifteenths; by the receiver, George E. Maxon, six-fifteenths. It is further ordered that the complainants recover of and from the defendant Teese, the sum of $1050, as costs, being the amount allowed to said George E. Maxon for his services as receiver. ”

This judgment of the court was excepted to by all the ‘ parties except the receiver, and the complainants prayed an appeal, which was granted.

It will be observed that the appeal only brings up for review the judgment of the court on the master’s report in reference to the receiver’s account. The court finds that the receiver has in his hands belonging to the complainants, $3233.37, which he is ordered to pay over to them. They think the amount the receiver was required to pay was not enough, and for the purpose of reversing the judgment and getting more, they appeal. The judgment appealed from is in effect but a money judgment. In the original decree a freehold was involved, but no appeal was taken from that decree, and it is not before the court. But no freehold is involved in this controversy. The question, and the only question, here involved, is what amount of money the complainants are entitled to recover from the receiver. Such being the case, it is plain, under the statute, that an appeal did not lie directly from the circuit court to this court, but the appeal should have gone to the Appellate Court.

The appeal will be dismissed.

Appeal dismissed.


text:
    Roxanna Scott et al. v. Rachel A. Harris et al.

      Filed at Springfield

      March 30, 1885.

    1. Privileged communications— as between attorney and client-effect of death of the latter. Although statements made by a party to his attorney and legal adviser are privileged when offered in evidence against the client, if living, they are not privileged after his death, in an inquiry to ascertain, as between his devisees under his will and a grantee claiming under his deed made after the will, as to what he intended by his deed.
    2. But when the rights and interests of the client, and those claiming under him, and third persons, come in conflict, the privilege of communications to his attorney is not removed by the client’s death. In cases of testamentary disposition the rule seems to be otherwise.
    3. Same—effect of disclosure by the client himself. The privilege of secrecy as to communications to an attorney, is that of the client alone; and if the latter chooses to disclose what is communicated to his legal adviser in professional confidence, there is no rule of law to prohibit it.
    4. Where a party, after communicating to and advising with her attorney as to certain conveyances of land, directs him to inform the legatees under her husband’s will that the deeds to her from her husband, made subsequent to the execution of the will, had only been made to enable her to preserve the estate, and that if anything was left after the payment of the debts it was to be divided in accordance with the provisions of the will, and the attorney makes the communication to the legatees, such communications will not be privileged. The, admissions and statements of the attorney under such circumstances are the admissions and statements of the client.

      5. Tbusts—whether within the Statute of Frauds—of express and implied trusts. If a husband conveys his lands to his wife upon the express trust to enable her to better manage and preserve his estate, and to be applied by her in accordance with the provisions of his will, before made, and she agrees to carry out the trust, the same will fall within the Statute of Frauds if not created or evidenced in writing, and can not be enforced if the defence of the statute be interposed.
    6. But where a trust arises by implication, construction or operation of law in respect to land, the legal title to which is obtained by a wife by a conveyance from her husband in consequence of undue influence over his mind, and by false representations, -it is not within the Statute of Frauds, though not evidenced in writing. .
    V. Same—of fraud to take case out of the statute. The mere refusal of a trustee to execute an express trust, or the denial of the existence of the trust by him, does not constitute such fraud as will take the case out of the Statute of Frauds.
    8. Same—effect of an admission in an answer as showing a trust. On a bill by the adult heirs and devisees of a deceased testator, against the widow and infant daughter of the testator, to establish that a conveyance by him to the widow, shortly before his death, was made upon an express trust for the benefit of his devisees and legatees, the widow answered the bill, and alleged that “the conveyances were made by the deceased with the intention of changing the effect of his will, and providing for this defendant and her infant daughter, Laura:” Held, that such clause in the answer was not an admission by the widow that she took and held as trustee by the conveyances, but showed an absolute gift to her for an admitted motive or reason.
    9. Same—of the particular case—whether there is shown an intention of a grantor to create one. In this case the facts and circumstances connected with a conveyance by a husband, shortly before his death, to his wife, are stated, and held not sufficient to show an intention on his part to create a trust in his wife, but as showing an intention to make a provision for his wife and infant daughter.
    10. Amendment of answer in chancery, pending the hearing—to set up the Statute of Frauds. It is a matter of discretion to allow a defendant in a chancery suit to amend his answer even after the evidence has been heard, by setting up the Statute of Frauds, as against mere oral declarations and admissions of a trust, in respect to lands. If the complainant is not prepared' to meet the new issue, and needs time, he should present an affidavit of that fact, and ask for an extension of the time for the hearing.
    11. Allegations and pboops should correspond. On a bill framed to have a trust established in respect of lands, to remove the trustee, and for an account, etc., the complainant can not show that the conveyance to the alleged trastee was executed as a mortgage, to secure the grantee against loss, etc.

      Appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    Mr. George S. Willits, and Mr. Alexander S. Bradley, for the appellants:
    The Statute of Frauds was not pleaded or attempted to be set up in apt time. Carpenter v. Davis, 72 Ill. 17.
    The conduct of the widow in keeping the children of her husband away during his last illness, and in alienating his affection for them, and her refusal to converse on the subject immediately after his death, creates a strong suspicion of fraud, which, coupled with proof of her refusal to carry out an agreed trust, throws the burden of proof on her to show the transaction was a fair one, and discredits her testimony.
    As to refusal to allow amendments changing the grounds of defence, or setting up unconscionable defences, see Howe v. Russell, 36 Maine, 115 ; Beach v. Fulton Bank, 3 Wend. 583.
    Upon principle, appellee can not detail conversations herself, and where we seek to contradict her, interpose successfully the Statute of Frauds, even if regularly pleaded. Fire Ins. Co. v. Reynolds, 36 Mich. 502; 1 Wharton on Evidence, 584.
    The answer of appellee is a sufficient admission of a trust. Perry on Trusts, sec. 82; McLaurie v. Partlow, 53 Ill. 340.
    If the deeds were intended as a security to Rachel, against the incumbrance on her homestead, the statute does not apply. Wright v. Gay, 101 Ill. 240; Ruckman v. Alwood, 71 id. 155.
    The privilege of an attorney is to protect the living, and can not be invoked when the question arises as to the intention of a deceased person in respect to the disposition of his estate. Russell v. Jackson, 9 Hare, 387; Blackburn v. Crawford, 3 Wall. 175; 1 Wharton on Evidence, sec. 591; 1 Taylor on Evidence, sec. 928.

      Communications in presence of both parties are not privileged. 1 Hill, 33; 3 Barb. Ch. 528; 30 N. T. 330; 29 Ala. 254; Wharton on Evidence, sec. 587.
    An open communication from one party to another, through the first party’s attorney, is not privileged. Ripon v. Davis, 2 Nev. & Man. 310.
    By voluntarily going on the stand and relating her conversations with Asay, appellee waived the privilege. 1 Wharton on Evidence, sec. 584.
    Mr. Theodore Sheldon, and Mr. Robert Hervey, for the appellees:
    As to the degree, amount and character of evidence to establish an express trust, see Miller v. Stokely, 5 Ohio St. 194; 2 Reed on Statute of Frauds, sec. 836; Lantry v. Lantry, 51 Ill. 466.
    The communications of Harris in his lifetime, and those of appellee after his death, to Asay, their attorney, were privileged. People v. Barker, 56 Ill. 299; Wood v. Thornly, 58 id. 464; Thorp v. Goewey, 85 id. 615; Greenleaf on Evidence, sec. 243.
    Parol proof of an express trust was barred by the plea of the Statute of Frauds. Lantry v. Lantry, 51 Ill. 465; 2 Reed on Statute of Frauds, secs. 851, 871; Adams v. Adanns, 79 Ill. 517; Wilson v. McDowell, 78 id. 518.
    Mr. Henry A. Foster, for certain minor appellees.
   Mr. Chief Justice Scholfield

delivered the opinion of the Court:

This is a controversy between certain children and a grandchild of the first wife of Jacob Harris, deceased, on the one side, who are complainants, and his second wife, Rachel Ann Harris, one of the defendants, on the other. The complainants claim as devisees under a will made by Jacob Harris on the 2Sth clay of September, 1876, and Eaehel Ann Harris claims under deeds delivered to her on the 1st day of September, 1877. The will makes Eaehel Ann Harris executrix, and empowers her to sell and convey the real estate, as well as the personal property, for the payment of debts, and gives, after the payment of debts, to her and to her and the testator’s infant daughter, Laura M., jointly, share and share alike, one-half of the balance of the estate, and to the complainants, in shares, as therein specified, the other half of the balance of the estate. The deeds convey certain real estate therein described, to one Sidwell, and from him to Eaehel Ann Harris, in fee, without any words of limitation or qualification. Jacob Harris died on the 11th day of September, 1877,—eleven days after the making of the deeds,—and the will was duly probated in apt time.

The bill, as originally filed, charges, in substance, that Eaehel Ann acquired an undue influence over the mind of Jacob, and then alienated his affections from the children of his first wife; that during his last illness his mind became weakened by disease, and while it was thus weakened by disease, and she had such undue influence over it, she falsely represented to him that his estate was in a bad financial condition ; that she was trustworthy, and competent to manage it; that it was necessary for her to have the title to the real estate in order to handle and dispose of it to the best advantage, and that if he would place it in her name she would conserve it, and administer it in accordance with the terms and directions of the will,—all which representations are specifically alleged to have been knowingly false. It is then charged that the deeds were made solely in consequence of these false representations," and that by reason thereof a trust exists in behalf of the complainants to have the real estate held and disposed of in accordance with the terms of the will. These allegations are all denied by the answer of Eaehel Ann Harris, and she claims therein that the conveyances were made freely and voluntarily by Jacob Harris, for the purpose of investing her with the fee simple title, absolutely, in the lands therein described. Replication was filed to the answer, and evidence taken, and the cause was twice heard in the circuit court. On each hearing the court decreed that the bill be dismissed.

Some time after the bill was filed, and before the first hearing, the complainants filed an amendment thereto, wherein they alleged that the conveyances were made by Jacob Harris for the better management of the property, and to secure Rachel Ann against loss on account of her having permitted Jacob to include her homestead, which was her separate property, in a mortgage with this property, to secure a loan, which he obtained, of $50,000; and it is charged that “such was the intent of said Jacob, and the understanding and agreement of him with said Rachel, and that said deeds were, obtained upon the promise of said Rachel to treat said conveyance as a trust, and by the undue influence and fraud of said Rachel. ” After the first hearing, the court, on petition of the complainants, ordered the cause to be re-heard, and after that order was made, and before the second hearing, Rachel Ann Harris, by leave of the court, filed an amended answer, in these words:

“And this defendant, further answering the said amended bill of complaint, says that none of the several supposed declarations or creations of trust or confidences in the said amended bill of complaint mentioned as having been made, done or created by the defendant, Rachel Ann Harris, after the death of said Jacob Harris, are, nor were, nor was, nor is, in any memorandum, or note thereof, in writing, signed by this defendant, or by said Jacob Harris, or by any other person by law enabled to declare such trusts according to the form of the statute in such cases made and provided, and known as the Statute of Frauds and Perjuries,—and therefore this defendant, by leave of court first asked and obtained for that purpose, doth interpose the said Statute of Frauds and Perjuries to the said complainants’ amended bill of complaint, and prays that the same be considered by this honorable court as though it had been fully and specially set forth by way of plea herein. ”

There is not sufficient evidence to maintain the allegations of undue influence and of fraudulent misrepresentation. The evidence clearly shows that the affection of Jacob Harris for the children of his first wife was warm, and that it continued until the very last—with a single exception. His son Henry W. gave him some trouble by his conduct, which caused him to be dissatisfied with him. That „he was justly thus dissatisfied, seems probable, but it does not appear to have produced permanent ill-will, and there is no evidence whatever showing a perverted judgment with regard to his children, and a willful purpose to do .any of them injustice. There is not a particle of proof that Rachel Ann Harris ever influenced Jacob Harris in a single business transaction,- and caused him to execute her will rather than his own. There is no evidence that she ever solicited him to make these deeds, nor that he was in anywise dominated by her will. There is some evidence that she and some of the children of the first wife were not at all times on the most friendly terms of intimacy, and one or two of the daughters testify to declarations of his tending to show that he preferred that she should not know of his friendly attentions to them—at most but the manifestation of a very natural desire to avoid cause of domestic altercation, where such altercation could lead to no beneficial result. There is no evidence that Rachel Ann ever misrepresented any fact to Jacob Harris.

But, beyond the allegations of undue influence and fraudulent misrepresentation, we have seen that the bill, as amended, charges that the deeds were executed upon an express trust, and if this charge is sustained by sufficient legal proof, admissible under the pleadings, the decree below will have to be reversed.

The only witness whose evidence goes to the extent of proving that the deeds were executed upon an express trust, is E. G. Asay, an attorney at law. He testifies to certain declarations made by Jacob Harris in his lifetime, and also to certain admissions made by Rachel Ann Harris to him since the death of Jacob Harris. Different objections exist against the reception in evidence of these declarations and admissions, and they will be considered separately.

Mr. Asay was the attorney at law and legal adviser of Jacob Harris in his lifetime, and all that was said to him by Harris in regard to the execution of the deeds, and his intention in that respect, was said to him in that capacity. Mr. Asay, himself, objected to testifying to these declarations, and the counsel for Rachel Ann Harris also objected thereto, upon the ground that they were privileged communications. The chancellor admitted the evidence, subject to the objections. If Harris were himself alive, interposing the objection, counsel for complainants concede the evidence would be inadmissible, but they contend that inasmuch as he is dead, and the inquiry is simply to ascertain, as between the legatees under his will and the grantee claiming under his deeds, what he intended by his deeds, the rule for excluding the evidence does not apply. This position has support in Russell v. Jackson, 9 Hare, 387, and Blackburn v. Crawford, 3 Wall. 175, although where the rights and interests of clients, and those claiming under them, and third persons, come in conflict, the privilege is not removed by the client’s death. In cases of testamentary disposition, the rule seems to be otherwise. (1 Wharton on Evidence, see. 591.) But we can not say the court erred in not holding a trust proved, even admitting those declarations. Asay was not present when the deeds were executed. They were executed on the advice of others, of which he knew nothing until afterwards. The scrivener and one other witness are positive no trust was intended to be created; and the declarations of Harris, testified to by Asay, most strongly tending to show the deeds were executed in trust, were made in the intervals between excruciating pains, the same night of his death, which occurred only a few hours afterwards, and when they were made, Asay says, he was totally unfit to transact business. Moreover, Asay testifies after the lapse of years, and after considerable suffering as an invalid, and he shows, by irreconcilable statements, that his memory is impaired to some extent, and that it would therefore be dangerous to rely wholly upon it in a matter of so much importance, No censure is meant to be reflected upon him, for his infirmity is a misfortune for which he is not responsible.

As to the admissions made by Rachel Ann to Asay, after the death of Jacob, it is reasonably clear that when they were made the relation of attorney and client existed between her and Asay, and if that were the only material question affecting those declarations, nothing more need be said in that regard. But the privilege of secrecy is that of the client; alone. If the client chooses to disclose what is communicated to the lawyer in professional confidence, no rule of law prohibits it. It is in evidence that several of the legatees under the will, on speaking to Rachel Ann in regard to the condition of the estate, were referred by her to Asay for information. They testify to the fact, and she admits it. Asay testifies that she directed him to inform the legatees under the will that the deeds had only been made to enable her to preserve the estate, and that if anything was left after the payment of the debts, it was to be divided in accordance with the provisions of the will, and that he made this communication to certain of the legatees. It is too apparent to need comment, that such a communication is not privileged. It is made for the express purpose of being made public. The admissions and statements of the attorney under such circumstances are the admissions and statements of the client. But the 9th section of our statute in relation to “Frauds and Perjuries,” (Rev. Stat. 1874, chap. 59, p. 541,) provides that “all declarations or creations of trusts or confidences, of any lands, tenements or hereditaments, shall be manifested and proved by some writing, signed by the party who is by law enabled to declare such trust, or by his last will, in writing, or else they shall be utterly void and of no effect: Provided, that resulting trust or trusts created by construction, implication or operation of law, need not be in writing, and the same may be proved by parol. ” Under the bill as originally framed,—that is, seeking to establish a trust by construction, implication or operation of law, in consequence of .the undue influence of Rachel Ann over the mind of Jacob, and of her fraudulent and false representations,—it would have been no defence to have alleged that the trust was not created by some instrument in writing. But, it has been seen, the bill, as amended, alleged an express trust, and to this allegation the defence that the declaration of trust is not in writing, as required by the statute, is applicable. In her amended answer, it has been shown, Rachel Ann pleads this statute, and relies upon it as a defence to any declaration of trust claimed to have been proved by her admissions made since the death of Jacob. The language of the answer is not entirely free from obscurity, but taken in connection with the amendment to the bill, to which, alone, it professes to relate, it is quite clear that it means that she interposes the defence of the statute as against the proof of a declaration of a trust contained in the verbal declarations made by her since the death of Jacob. Of course, if a trust was created here at all, it was created by Jacob in his lifetime, when the deeds were executed, since there is no pretence that Rachel Ann has, since then, by any act of hers, impressed a trust upon property that was before free of a trust. But the amended bill charges that a trust was created by Jacob, and accepted by Rachel Ann in accepting the deeds, and proof that she did so accept the deeds is sought to be established by oral declarations or admissions made by her, since the death of Jacob, that such was the fact, and it is to these oral declarations or admissions made by her (which are but the evidences of a declaration of a trust, and not the formal declaration of a trust,) that we understand the answer to refer. Indeed, there is nothing else to which it can refer, and, reading the answer in this sense it is specific enough, and .the proof all being oral, is insufficient to establish the trust.

Counsel interpose, however, several objections to this conclusion, which demand a brief notice.

First—They contend that the court erred in allowing this amended answer to be filed after the proofs were all in. The most that can be said is, this was within the discretion of the court. If counsel were taken by surprise by the 'amendment, and were not prepared to meet the issue, and needed time, they should have presented an affidavit to that effect, when, doubtless, the court would have given any reasonable extension desired. (Rev. Stat. 1874, chap. 22, sec. 37, p. 202.) The defence being expressly authorized by statute, can not be said to be inequitable, and it should not be excluded by mere technical advantages by reason of the time of pleading it. Cases might possibly arise where, in consequence of peculiar circumstances, it would be inequitable and unjust to allow it to be pleaded at so late a day in the progress of the case, but this is not such a case. It is manifest the position of the complainants could not have been a whit better than it is, had this defence been pleaded immediately upon the filing of the bill. The court, very clearly, did not abuse its discretion in permitting the amendment to be filed.

Second—It is contended, however, that even if it be conceded that the Statute of Frauds is properly pleaded, the denying of the trust by Eachel Ann, in connection with the evidence tending to prove an intention to create a trust, takes the case out of the statute. But, in our opinion, the evidence is insufficient to show the intention to create a trust. The mere value of the property, at the time, we do not think was sufficient to raise a presumption that Jacob could not reasonably be supposed to have been willing that his first wife’s children should be deprived of all interest in it. They were all of mature age, and had families of their own, and none of them were in a helpless or dependent condition. Rachel Ann had only a homestead as her separate property, of no great value, and this was included in the $50,000 mortgage. The fair conclusion, from the evidence, is, that from 1874 until the death of Jacob Harris, his property, which consisted of real estate, depreciated in value. When the deeds were made, the out-look, unless to the over-sanguine, was unpromising. He had two pieces of property, (one piece known as the Washington" avenue property, and the other piece known as the State street property,) both mortgaged,—that on Washington avenue so heavily that the mortgagees, shortly after Jacob’s death, obtained the title, on foreclosure. The State street property and the wife’s homestead were mortgaged for the $50,000. There was then due unpaid interest on that mortgage to the amount of $2000, and unpaid taxes on the property to the amount of $1800. Besides this, Jacob owed debts that were unsecured, to the amount of some $4000, a portion' of which had gone to judgment. He had been much ■worried about this indebtedness, and not without reason, for he had only $200 in money on hand, and he had vainly tried to raise an amount to meet it, by mortgage on the property, and if it passed into judgments which he could not satisfy, the equity of redemption in the State street property might be extinguished by them. His and Rachel Ann’s daughter, Laura M., was then only nine years of age, and she was wholly unprovided for. The average of the witnesses does not fix the value of the State street property above $60,000. That it has since appreciated much beyond that anfount, is unimportant. The case must be considered as it evidently appeared to the mind of Jacob when the deeds were made. There is evidence of expressions by him fixing the value of the property at a very high figure; but these, as we understand the evidence, were made more in a spirit of hopeful reliance upon the future, than upon any estimate based upon an ability to effect present sales. He was not then in his last sickness, and had not, unavailingly, attempted to raise upon it the additional sum needed to satisfy his unsecured indebtedness. The provision for his wife and child, to be left after extinguishing all indebtedness, could not, at best, on the 1st day of September, 1877, have looked to him as very large, and he must have realized that unpropitious events might entirely destroy it. Moreover, as we have before observed, the witness who was in a position best to know what was intended by the execution of the deeds,—the scrivener,— is positive that no trust was intended to be created. He was the business agent of Jacob, and was consulted by him as to the effect of the deeds. His character is not discredited, and he stands uncontradicted. The mere refusal of a trustee to execute an express trust, or the denial of the existence of the trust by the trustee, does not constitute such fraud as takes a case out of the statute. Perry v. McHenry, 13 Ill. 236; Lantry v. Lantry, 51 id. 458.

Third—In the answer of Rachel Ann it is alleged that “the conveyances were made by Jacob with the intention of changing the effect of his will, and providing for this defendant and her infant daughter, Laura, ” and counsel insist this is a sufficient admission by Rachel Ann that she took and holds as trustee,—on the authority of Perry on Trusts, sec. 82. But this is no admission that a trust was created. (Bryan v. Howland, 98 Ill. 625.) The motives for making a conveyance are, quite evidently, a very different thing from the conveyance itself. It is entirely consistent with the motives here declared, that the provision for the mother and daughter should be by means of the 'ownership of the mother. After his death, the duty of the nurture and support uf the infant would devolve on the mother, and during infancy, and so long as the infant should remain with the mother, she would be, literally, provided for, by investing the mother with the title to property necessary to enable her to support and educate her. A provision, in one sense, is made for a child when the parent, its natural, legal guardian for nurture, is supplied with the means of support and education, although the use of those means is left to the discretion of the parent. It may not be entirely adequate, but still is a provision. In this admission there is no recognition of anything other than appears upon the face of the deed in respect of the ownership of the property. -0 The property is simply given te Rachel Ann for an admitted motive or reason. The gift is absolute. No promise is exacted, and no duties are imposed, as a condition of its acceptance.

Fourth—Again, it is contended the evidence proves that the deeds were executed as a mortgage, to indemnify Rachel Ann against loss on account of having included her homestead in the $50,000 mortgage, and that parol evidence is admissible to establish this fact. This admits of two answers: First, the bill is not a bill to foreclose, or to redeem from a mortgage, but a bill to establish a trust, to remove the trustee, and for an account, etc.; and second, the evidence fails to prove with satisfactory fullness and certainty that such was the intention of the parties.

On the whole, we see. no cause to disturb the decree below, and it is therefore affirmed.

Decree affirmed.