author: Opinion by Mr. Justice Trumbull :

text:
    William Frye, appellant, vs. The President, Directors and Company of the Bank of Illinois, who sue for the use of John J. Hardin, et al., appellees.

      ^Appeal from, Calhoun.

    A person who claims under a title paramount, or prior to that sought to he enforced hy a hill in chancery, and whose interests and title are not affected by the relief prayed for, need not be made a party to such bill.
    It is only the general character of a witness for truth and veracity, that should be inquired into, upon an impeachment of his testimony.
    A subsequent mortgagee upon the same premises, for an existing debt, is entitled to precedence of advances made by a prior mortgagee, who has notice of the second mortgage.
    It would be inequitable to allow a mortgagor to suffer th.e mortgaged lands to be sold for taxes, by buying them in himself, to defeat the lien of the mortgage.
    The merits of this suit in chancery are sufficiently stated in the opinion. The decree appealed from was a pro forma decree, entered at October term, 1849, by Woodson, Judge.
    Billings & Parsons and E. Keating, for appellant:
    The interest which disqualifies a witness, is an interest in the result of the cause, namely: that all concerned in the demand ought to be made partners in equity: not all concerned in the subject matter, respecting which a thing is demanded, but all concerned in the very thing which is demanded—the matter petitioned for in the prayer of the bill—in other words, the object of the suit. Story’s Eq. Pl., 95, note; ibid, sec. 76. Tested by this rule, the depositions of Joseph Harrison, Stephen Morris, Henry G. Hart and Hiram Sergeant, taken by the defendants in error, must be excluded. The record shows that other parties should have been made to the bill. In a bill to foreclose a mortgage, prior incumbrancers must be made parties. Finley vs. Bank United States, 6 Cond. R., 320; Haines vs. Beach, 3 J. C. R., 459; Ensworth vs. Lambert, 4 J. C. R., 604; McGown vs. Yerks, 6 ibid, 449; Story’s Eq. Pl., sec. 193. The defendant may not only raise the objection at the hearing, for want of proper parties, but the Court itself may raise the objection, when determining the cause. 1 Barb. Ch. Practice, 321. The examination as to the credit to be given to the testimony of a witness, must be confined to general credit, by producing witnesses to swear that the person is not to be believed on oath. Troup vs. Sherwood, 3 J. C. R; 563; Commonwealth vs. Churchill, 11 Metcalf, 538; Noel vs. Dickey, 3 Bibb, 268; Gilchrist vs. McKee, 4 Watts, 380; United States vs. Vansyckle, 2 McLean, 219; Ford vs. Ford, 7 Humphrey, 100; Bakeman vs. Rose and wife, 14 Wend., 110; Rector vs. Rector, 3 Gilm., 117. The declarations of John Shaw, that he had given a mortgage on the lands to Frye, which he subsequently mortgaged to the complainants, made before the mortgage was executed to the complainants, are admissible in evidence. 1 Greenleaf Ev., secs. 125, 149; West Cambridge vs. Lexington, 2 Pick., 538; Davis vs. Pierce et al., 2 Dunford and East, 20; Carne vs. Nicoll, 27 English Com. L. R., 446; Woolway vs. Rowe, 28 ibid, 52; Beers vs. Hawley, 2 Conn,. 469-70; Demming vs. Carrington, 12 Conn., 1; Norton vs. Pettibone, 7 Conn., 323; Ramsbottom vs. Phelps, 18 ibid, 285. The mere silence of a prior mortgagee is not sufficient to postpone the prior mortgagee. There must be actual fraud charged and proved. Brinkerhoff vs. Lansing, 4 J. C. R., 66; Berry vs. Mutual Ins. Co., 2 ibid, 607; 1 Story on Equity, 380, sec. 384 to 393. Sums subsequently lent on notes, if distinctly agreed at the time to be on the security of the mortgaged property, will be allowed to be tacked. Matthews vs. Cartwright, 2 Atk., 347; 1 Story’s Eq., sec. 416, 417; 4 Kent, 175; Brinkerhoff vs. Marvine, 5 J. C. R., 325. A voluntary conveyance made without consideration, by a person, whether insolvent or not, cannot be avoided by a subsequent creditor, unless it is proved that the conveyance was made for the express purpose of defrauding such creditor. Howe vs. Ward, 4 Greenleaf, 198, and the numerous authorities there referred to.
    D. A. Smith, for appellees :
    Complainants in their bill and amended bill aver, that mortgage to Frye was antedated, and fraudulently recorded, as of a date some years before it was executed; that it was for an inadequate consideration, and given to secure Frye in an ostensible sum, amounting to much more than Shaw really owed him ; that it was not bona fide, but was made to the intent to delay, hinder and defraud the creditors of Shaw. These are the issues to be tried in the case.
    When consideration is impeached by proof of suspicious circumstances or badges of fraud, the onus probandi of consideration relied upon by the mortgagee, is devolved on him; and if he cannot prove it, must abide by his legal misfortune or necessity of his position. A cunning and unscrupulous man may do much in four years to heal or patch up a fraud. Equivocal efforts post litem, motam always to be looked upon with distrust, or very strictly scrutinized, and ought not to overcome the repeated, deliberate and solemn admissions of a party making such efforts; which ad missions have been made under unguarded circumstances, and before the movement of strife, and before there were any inducements to a sinister or tortuous course of conduct. As to admissions against a party’s interest, see 1 Greenleaf on Ev., sec. 200.
    As to mortgage standing as security for future advances, is an afterthought, not admissible under either of Frye’s answers. If it were admissible, any items in it since the date of the mortgage to the insurance company and Atchison in January, 1839, could not prejudice them. 1 Bibb, 200; 6 J. C. R., 429; 2 Powell on Mort., 533, note 1. But if admissible, why was not interest on the $400 bond, dated in December, 1827, estimated at the rate of twelve per cent.? Shaw had long before that given a receipt, acknowledging the deposit of the patent for the floating claim. But assuming that Frye’s mortgage was truly dated and recorded, and was for a full and fair consideration, ought he not to be postponed to the Bank of Illinois, because of the fraud he perpetrated upon her, in neglecting, in his certificate, to state that he had a mortgage on the property? Was he not thus standing by, in fraudulent silence, and inducing her to loan her money under a delusion? See cases collated, 1 Pirtle, 316, sec. 149. See the rule as to impeaching a witness, 1 Greenleaf, sec. 461, 462. This is an abstract question, affording a fit occasion for the Court to settle the form of questions impeaching a witness.
    The tax sales of the 27th and 28th of April, 1840, were probably a part and parcel of the fraud between Frye and Shaw. By quit claim deed, in May, 1844, Shaw conveyed to Frye, he, Shaw, having been under obligation to keep the taxes paid; and he, Frye, having actual and constructive notice of the mortgage to complainants, can he be in any. better condition, or have any superior equity to Shaw. But if this suggestion goes for nothing, there is no evidence in the record of any judgment or process, in virtue of which the lands were sold for taxes. This claim is surely baseless. That his mortgage was colorable —or a mere shadow—for an inadequate consideration, to keep Shaw’s creditors from getting the property, and the better to enable Shaw to settle with his creditors, see 3 Monroe, 1; 1 Leading American Cases, 55, 56; 23 Maine, 221. As to necessary parties to a bill to foreclose a mortgage, see Story’s Eq. Pleading, sec. 193, and note; 6 Paige, 637; 6 J. J. Marshall, 432. As to the interest of a witness that will disqualify him, see 1 Greenleaf Ev., sec. 389-90, 523-24. As to the doctrine of impeaching a witness, see 1 Greenleaf Ev., sec. 461, 462. As to doctrine as to leading questions, see 1 Greenleaf, sec. 434, 435.
    In the application of the case, 1 A. K. Marshall, 332, I insist that our statute authorizing the waiver of the answer on oath, does not vary the rule as to the use of an answer in making up the issues, or proving the same. If the defendant relies upon special affirmative matters in avoidance, or avers special consideration, the onus probandi is upon him. Irrespective of this point, if the defendant, Frye, relies upon the general prima facie evidence of consideration of the note and mortgage, we have impeached the same for fraud, by his own confessions, as well as much other evidence.
   Opinion by Mr. Justice Trumbull :

The appellees, who were complainants in the Court below, filed their bill against John Shaw and William Frye, alleging that Shaw, for the purpose of securing various sums of money which he owed them, being chiefly borrowed monej', executed two mortgages, one to Atchison and the insurance companies, dated January 21, 1839, and recorded June 15, 1839; the other to the Bank of Illinois, dated April ”21, 1840, and recorded June 3, 1840 ; both mortgages being upon lands lying in Calhoun county. That a large amount of the indebtedness, to secure which said mortgages were given, remained unpaid; that there was a mistake in the description of one of the tracts of land included in the mortgage to Atchison and the insurance companies; that William Frj'e, the appellee, claimed to hold all of the lands included in the aforesaid mortgages, except one tract, under a mortgage purporting to have been executed to him by John Shaw, May 3, 1836, to have been acknowledged the same day, and recorded June 3, 1836—said mortgage to Frye, purporting to have been given to secure a note of $ 3,400, due January 1, 1840, drawn by Shaw in favor of Frye; that Frye foreclosed said mortgage without making the appellees parties, and wrongfully holds all of said lands, except two tracts, by purchase under his foreclosure ; that the mortgage to Frye was made subsequent to those made to the complainants, and so recorded as to appear to be recorded four years before it actually was ; that Frye, who was the recorder at the time, had annexed a false certificate of record ; that the mortgage to Frye was fraudulent and void, and given to hinder and delay the complainants in the collection of their just debts; that it w'as, in fact, made after the execution and delivery of the mortgages to the complainants ; that Frye obtained from Shaw a tax certificate to a portion of the lands mortgaged, to aid his defective title, which lands Shaw fraudulently permitted to be sold in 1840, for taxes of 1839, bought them in, in his own name, and subsequently, in 1844, transferred the same to Frye; that Frye afterwards obtained a deed for the same from the collector, and that the assignees of the Bank of Illinois, before the fraud of Frye was discovered, redeemed from him one of the tracts of land included in his mortgage, and obtained a quit claim deed for the same to David A. Smith, which deed they bring into Court and ask to have cancelled, and the sum paid Frye therefor refunded. The bill waives answers under oath, asks for the appointment of a receiver, to take charge of the lands, rent them out, &c., and prays that all the conveyances named in the bill as having been made to Frye, be set aside and annulled; that the lands respectively mortgaged to complainants be sold to satisfy the debts due them, and that Shaw be foreclosed of all equity of redemption in said lands; that the rents and profits go to complainants, and for general relief.

A receiver was appointed, and at the May term, 1847, of the Calhoun Circuit Court, a decree was entered in accordance with the prayer of the bill. The case was subsequently brought to this Court by writ of error, the decree of the Circuit Court reversed, and the cause remanded, with leave to the complainants to amend their bill. 5 Gilm., 332. In their amended bill, the complainants supply all the allegations which were wanting in the original bill, and aver that the deed from Frye to Smith, which had been cancelled by the former decree while it was in force, was properly cancelled, and the purchase money and interest rightfully recovered and received from said Frye; or, if not, the complainant, Smith, offers to return the money and interest, and asks to have another deed made. Shaw answered the original bill, admitting the execution of the mortgages to complainants, but claiming certain credits thereon, and Frye answered both the original and amended bills, admitting the execution of the notes and mortgages by the defendant, Shaw, as alleged in the bill, but denying any and all fraud in the execution and recording of the mortgage to himself, and alleging that it was honestly made and executed at the time it bears date.

The Circuit Court entered a pro forma decree, granting the relief prayed for, and the rendition of that decree is now assigned for error.

It is objected by appellant, in the first place, that those persons who are shown by the answers and evidence to have purchased portions of the property mortgaged to complainants, prior to the date of their mortgages, should have been made parties. Had they been made parties no decree could have been rendered against them; and it is a general rule, that no one need be made a party against whom, if brought to a hearing, the complainant could have no decree. Story’s Eq. Pl., sec. 234. No person who claims under a title paramount or prior to that sought to be enforced by the bill, and whose interests and title are not affected by the relief prayed for, need be made a party to a bill. Story’s Eq. Pl., sec. 230; Rose vs. Page, 2 Simons, 471; Lewis vs. Lord Zouche, ibid, 388; 1 Russell and Mylne, 656. The purchasers in this case were not, therefore, necessary-parties.

In support of the decree, the appellees rely upon three points: 1. That the mortgage to Frye was antedated and fraudulently recorded, as of a date some years before it was executed. 2. That it was for an inadequate consideration, and given to secure Frye in an ostensible sum, amounting to much more than Shaw really owed him. 3. That it was not bona fide, but made with the intent to delay, hinder and defraud the creditors of Shaw. The first and third points may be considered together, for if the mortgage to Frye was really executed and recorded in 1836, as it purports to have been, it can hardly be insisted that it was made to delay and hinder the complainants, as creditors, who did not become such till several years after-wards. The question of consideration will be considered in disposing of the second point. Was the mortgage to Frye, then, antedated and fraudulently recorded, as alleged ? This is the great question in the case, to settle which the parties have referred to many exhibits, and taken numerous depositions, which, with the pleadings, cover more than two hundred and ninety closely written pages. To refer in detail to all this mass of evidence, with a view of either reconciling or pointing out its inconsistencies, would swell this opinion to an unreasonable length, and be attended with little practical benefit, as the questions to be determined are chiefly questions of fact, and could not, therefore, be referred to as forming rules of decision in other cases. All the testimony has been carefully examined and considered, but in this opinion we shall only advert to more prominent and important parts of the evidence.

First, then, when was the mortgage executed? Upon its face it purports to have been executed May 3, 1836, and it is regularly acknowledged before John McDonald, a justice of the peace of Calhoun county, on the same day it bears date. The date of the acknowledgment is written out at length in the certificate. It is not pretended that there are any erasures, interlineations or other appearances upon the face of the mortgage and acknowledgment, to indicate that they were not really executed at the time they bear date. John McDonald, who took the acknowledgment, died in 1846, several years after all parties admit the mortgage was executed. No attempt is made to impeach his character for integrity, nor is it pretended that he was a man who would have affixed a false date to an official act. Prima facie, therefore, the mortgage must be presumed to have been executed at the time it bears date. Nor is there one single circumstance in the whole record tending to show that it was not executed at that time, unless it be certain declarations proved to have been made by Frye, and which will be hereafter considered, as they relate more particularly to the question as to when the mortgage was recorded. The bill alleges that it was antedated, but we look through the record in vain for any evidence of that fact.

To show that the mortgage was not recorded in 1836, the complainants rely much upon the intrinsic evidence to he derived from an inspection of the hooks in the recorder’s office. On the hearing of the cause in the Circuit Court, record books A and B of the recording of deeds in Calhoun county, and the indexes thereto, were produced and inspected by the Court, and the decree recites : That the said ostensible mortgage was ostensibly recorded in book A, 3d June, 1836, commencing on the last line of the third page from the fly or unruled leaf of said book, and continued to the middle of the last ruled page, upon the balance of which page is recorded a deed—Benjamin Wales to John Shaw; which last deed was acknowledged before a J. P. of Maine, but is not authenticated, and is entered in the entry or index book to said book A. The last sixteen deeds in that book, and the first fifteen deeds in record book B, purport to have been recorded on the 3d June, 1836. The following peculiarities exist in entry book to book A : for the first time in said entry book, in the description of the lands, seven lines are crowded into the space of five ruled or blue lines in said book, though subsequent instances of a similar character appear in said book, and the entries of the two deeds above referred to appear to be in darker ink than the entries of the preceding deeds. After the entries of the two deeds above referred to, then come the words, “ End of volume 1, Book A,” written just below the next ruled line; after which, upon the succeeding ruled line, is written, “ Beginning of volume 2, Book B ; ” after which commences entries of deeds recorded in book B. Between the words, “ End of volume 1, Book A,” and “ Beginning of volume 2, Book B,” is a line drawn with a lead pencil ; and that deeds entered in said entry book were separated by lines drawn with black ink. That deeds entered in said entry book, including said mortgage, seem to have been numbered consecutively, though when so numbered does not appear. The said numbering commenced and appears to have been practiced by the recorder, predecessor of the defendant, Frye, and it appeared to the Court, from the character of the ink and writing, that quite a number of the deeds in said book, preceding and succeeding said ostensible mortgage, were numbered at the same time, and that the last deed in book A, contrary to what appears in any other part of said book, is written over the margin, which has been ruled off by a red ink line throughout said book. That said ostensible mortgage is recorded as of the 18th of April, 1840, in book B, pp. 472 and 473, and that recording is indexed.

There is nothing in all these circumstances set forth in the decrees, as appearing upon the records of deeds and the entry-book, calculated to throw suspicion upon the mortgage to Frye, except it be the fact that it was recorded twice : the last time in 1840. The fact that the mortgage was recorded in the latter end of the book, commencing three pages from the fly leaf, proves nothing against it. Some deed must necessarily- be the last in the book, but the mortgage was not the last paper recorded. Another deed follows it, and to make the record of the mortgage fraudulent, that of the deed which follows must be fraudulent also. There is no evidence in the case to show that this latter deed was not executed and recorded at the time it purports to have been by the record. The fact that the deed was not so authenticated as to entitle it to be recorded at that time, is a circumstance entitled to but little weight, as recorders were often in the habit of recording deeds not properly authenticated, either because they were not always capable of determining when a deed was duly acknowledged, or because of a willingness to copy almost any paper upon the record, whenever they could get pay for so doing. The entry book, so far from furnishing evidence that the mortgage was not recorded in 1836, affords very strong evidence to the contrary. There is no evidence in the record to show when the entries, “ End of volume 1, Book A,” and “ Beginning of volume 2, Book B,” were made ; but the presumption is, that they were made in 1836, at the time the record of deeds in boolr B was commenced. The circumstance of their being crowded so as to leave no space between the entry of deeds recorded in different boobs, raises no presumption that the Frye mortgage was not entered until 1840, because if in fact not entered until that time, it could not have been the reason why the entries, “End of volume 1, Book A,” and “Beginning of volume 2, Book B,” should have been crowded so close together in 1836, the time when, in the absence of all proof, they must be presumed to have been made.. If the fact of entering the description of the lands mortgaged to Frye, upon five instead of seven lines, should be regarded as a suspicious circumstance in a case where the deed embraced so long a description, the suspicion is removed by the fact, that subsequently, and prior to 1840, other instances occur where the description of land is crowded in a similar manner. Hence, if Frye’s mortgage was not recorded, as complainants allege, until 1840, it was not the first instance of crowding upon the book.

It appears from the record, that the deeds, including the mortgage to Frye, were all consecutively numbered upon the entry book, and that circumstance affords strong evidence that it was entered at the time it purports to have been. It is almost inconceivable to suppose that Frye, in 1836, when there could have been no object for so doing, should have left a number vacant, and a space where he could enter his mortgage in 1840, and also another number and space for the deed which follows it. It is true, that there is no evidence to show when the numbering was done, but the presumption is, that it was done at the time the entries were made ; and if it was not done then, it was incumbent on the complainants to show that fact. They who would allege that the numbering was done improperly, or at a wrong time, must be required to prove their allegation. This the complainants have wholly failed to do. The fact that a number of deeds, both before and subsequent to the mortgage, appear to have been numbered at the same time, is entirely consistent with what the record ought to show, as some thirty odd deeds were entered of record the same day.

The recording of a mortgage twice, is an unusual, and, unexplained, a suspicious circumstance. The reason for this, as given by Frye in his answer, is, that Shaw, in 1840, applied to him to release the mortgage upon part of the property included in it, so that he might mortgage it to the Bank of Illinois, from which he wanted to borrow money, and that upon his, Frye’s, refusing to give such release, Shaw became excited, and threatened to destroy his house and all the records, so that no trace of the mortgage could ever be found; and Frye fearing he would attempt to carry his threats into execution, concluded, as a matter of precaution, to copy the record of the mortgage from book A to book B; and to have one of the books at the court-house, and keep the other at his residence, so that if Shaw should destroy the record of the mortgage in one book, it would be preserved in the other. The threats of Shaw, as stated in the answer, are sworn to by C. C. Forest, a witness examined by Frye ; •but still the explanation is not altogether satisfactory, as there was no necessity for recording the mortgage twice. The original might have been deposited in a place where it could be made available in case of a destruction of the record. The circumstance, however, is not sufficient to destroy the record of a deed which otherwise appears to have been properly recorded in 1836. It appears from the decree, that the color of the ink used in making the entry of the mortgage in the entry book, was darker than what had been used in making previous entries. It may have been of the same color as all subsequent entries, so far as the evidence shows, but whether so or not, the circumstance is of too trivial a character to be gravely considered: particularly when we consider that a number of witnesses, including the recorder and clerk of the Circuit Court, who carefully inspected and examined the record, state that they saw nothing out of place, irregular or different in the recording of the mortgage to Frye, from the balance of the record, and no witness contradicts their testimony.

After carefully considering the appearance of the books in the recorder’s office, as certified to in the decree, the testimony relating to the appearance of the records, and the allegations of the parties, we are clearly satisfied that there is nothing in the manner of recording the mortgage to Frye, in 1836, and of entering it in the entry book, calculated to show that it was not properly recorded at that time.

Is there any thing outside of the books to show that the mortgage was not recorded at the time it purports to have been ? Upon this point the parties have taken much testimony. Upon the part of the complainants, several witnesses, who either had purchased or were about to purchase small portions of the land included in the mortgage to Frye, between 1836 and 1840, testify that Frye told them that there was no mortgage or incumbrance upon the lands they were about purchasing. These statements are proven to have been made at different times, between 1836 and 1840. One witness testifies that Frye not only told him that there was no incumbrance upon a tract of land which is included in his mortgage, but that he examined the record and found none. Whether the declarations of Frye, as proved by persons who had purchased part of the lands included in his mortgage between the years 1836 and 1840, would of themselves be sufficient to warrant the conclusion as against the record, that the mortgage was not recorded till 1840, is a question not necessary to be determined. It is always dangerous to rely solely upon the statements of parties as detailed by witnesses after a lapse of several years, and especially is it so, when the statements are proved by witnesses who, although not legally disqualified from testifying, are yet interested in the question to he decided. But in this case there is quite as much testimony dehors the books in the recorder’s office to show that the mortgage was recorded prior to 1840, as there is to show that it was not. One witness, William Terry, testifies that he was informed by Shaw, between 1836 and 1840, at different times, that he owed Frye three or four thousand dollars, and that it was secured by mortgage. These statements of Shaw, made at that time, and against his interest, are admissible in evidence, and entitled to the same consideration as the statements of Frye made at the same time. Other witnesses testify to similar statements of Shaw. Terry also swears that he purchased a lot of Shaw in 1838, which was, as he learned, included in the mortgage to Frye, and he refused to receive a deed therefor, unless Frye would release it from his mortgage, which he did, by writing a release upon the deed. The deed, with the release upon it, bearing date March 29, 1839, is made an exhibit in the cause. The mortgage is referred to in the release, and its date and the date of the recording given. Another witness, Hugh McDennet, testifies to having seen and read the mortgage upon the records in the recorder’s office in 1837 ; also that he saw the original mortgage at that time, and he enters into a detailed statement, showing the particular circumstances under which he saw the mortgage, and how it happened that he did see it. The complainants made an unsuccessful attempt to impeach the general credibility of this witness, and with that view offered evidence of particular facts, and of his general reputation, in other respects than for truth and veracity. All evidence of such a character is improper, and should be rejected. The authorities are uniform that it is only the general reputation of a witness that can be inquired into, for the purpose of impeaching his testimony; and although there is some conflict in the decisions, as to whether the inquiry should be confined to the general character of the witness for truth and veracity, we think the better rule is, that it should be so confined. The proper question to be put to a witness called to impeach another is, whether he knows the general reputation of the person sought to be impeached among his neighbors, for truth and veracity. If this question be answered affirmatively, the witness may then be inquired of as to what that reputation is, and whether from that reputation he would believe him on oath. Mobley vA Hamit, 1 A. K. Marsh., 589; The People vs. Ruter, 19 Wend., 578; The United States vs. Van Sickle, 2 McLean, 219; Ford vs. Ford, 7 Humphrey, 100: The People vs. Mather, 4 Wend., 257; 1 Starkie on Ev., 182; 11 Met., 538. Only one witness testified that the general reputation of McDennet for truth and veracity was had, and that he would not believe him on oath; while a host of witnesses, who knew him and his reputation well, testified that his character for truth and veracity was good, and that he was to be believed when testifying as a witness. His statements are therefore entitled to credit.

Independent of the regular acknowledgment of the mortgage in 1836, and its entry upon the recorder’s books in that year, there is more evidence in the record to show that the mortgage was executed and recorded in 1836, than there is to show the contrary. The declarations of Frye, prior to 1840, if he ever made them, that there was no incumbrance upon particular pieces of the land which Shaw sold, and which were included in his mortgage, may, perhaps, be accounted for from the fact that Shaw was at that time in extensive business, and probably did not wish it to be known that his property was incumbered. Frye, in making the statements, was running no risk, as his security was ample, and the tracts Shaw was selling were small and unimportant, as compared with all the land included in the mortgage. Moreover, it is not improbable that the money received from the sales, may have been going to Frye, to be applied upon the mortgage. The sales were chiefly of town lots, the sale and improvement of which were calculated to enhance the value of the surrounding property.

Frye’s declarations would certainly operate as a release of the mortgage to those who purchased of Shaw upon their faith, and supposing that they were getting a good title, but they are insufficient in view of the positive evidence contained in the record, wholly to set aside the mortgage.

A question is made about the sufficiency of the consideration of the mortgage to Frye, and upon this point much testimony has also been taken. It is clearly proven that Frye was a man of property, that he had had frequent dealings with Shaw, reaching back for near twenty years prior to 1840 j that Shaw repeatedly acknowledged, prior to that time, that he was largely indebted to Frye; that he had been known at various times to get money from him, and from others on his order; and all these facts, together with the note and mortgage, certainly furnish a prima, facie presumption that the consideration was what it purports to be, and what is there to impeach this prima facie case ? Simply the testimony of Hemphill, as to the declarations of Frye made in 1845, that Shaw did not owe him, Frye, so very much, or the insurance companies either; and that he gave the witness to understand that his claim was a mere shadow, to keep others from getting the land. The statement of a single witness as to his understanding of what Frye said, cannot be permitted to overturn a mortgage, the consideration of which is otherwise unimpeached, and fortified as this is, by many extraneous circumstances and the repeated declarations and admissions of Shaw, made at a time anterior to the existence of the debts to Atchison and the insurance companies, and when it was against his interest to make them. It has been urged in argument that Frye practised a fraud upon the Bank of Illinois, by giving Shaw a certificate that there were no judgments against him in Calhoun county, or elsewhere, as far as he knew,' which certificate Frye signed as clerk of the Circuit Court, and which Shaw took with him to the Bank of Illinois when he went to make the loan, which he afterwards effected. So far from this certificate imposing upon the officers of the bank, it ought at once to have aroused their suspicions, and to have led them to suspect that Shaw’s lands were not free from incumbrance. Why not procure a certificate from the recorder as well as the clerk, if the lands were unincumbered, was a question which the officers of the bank naturally would, and no doubt did ask, for Shaw went before a justice of the peace and made oath before he could get the money, that his lands were free from any incumbrance created by him.

Although satisfied from the whole record, that the mortgage to Frye was made and recorded in 1836, and that it was given for the consideration therein expressed, still the complainants are entitled to partial relief. One of the tracts of land contained in the mortgage to the bank, is not included in Frye’s-mortgage, and as to that, the assignees of the bank are entitled to a foreclosure of the bank mortgage. One other tract included in the mortgage to Frye, was not sold upon the foreclosure of his mortgage, and as to that, also, the assignees of the bank are entitled to a foreclosure, unless it should become necessary hereafter to sell the same, in satisfaction of the mortgage to Frye, in consequence of the foreclosure of his mortgage being partially set aside as hereinafter stated.

Frye, with his answer, sets forth an account of the dealings between Shaw and himself, from the time the mortgage was executed, in 1836, up to January 1, 1840, when the note secured by said mortgage fell due ; from which it appears, that various payments were made, and new loans obtained by Shaw, after the giving of the mortgage; so that, at the time the mortgage to Atchison and the insurance companies was put upon record, June 15, 1839, there was only due upon the mortgage to Frye, $2,577, principal and interest together; but Frye subsequently made advances to Shaw, so that on the 1st of January, 1840, there was due of principal and interest, the precise sum of $3,400 ; to secure which the mortgage hád originally been given.

Whatever sums were advanced by Frye, after he had notice of the mortgage to Atchison and others, was in fraud of their rights; and to that amount his mortgage ought to be postponed to theirs. A subsequent mortgage upon the same premises for an existing debt, is entitled to precedence of advances made by a prior mortgagee, with notice of the second mortgage. Frye recorded the mortgage to Atchison and the insurance companies, and, consequently, had actual notice of its existence, and he was acting contrary to good faith in afterwards increasing his lien to their prejudice, upon the same property embraced in their mortgage. Spader vs. Lawler, 17 Ohio, 370; 4 Kent, 175; Hughes vs. Worley, 1 Bibb, 200; Lowthian vs. Hasel, 3 Brown Ch. Rep., 162.

The complainants, Atchison and the Missouri Insurance Company, not being parties to the suit in which the mortgage to Frye was foreclosed, are not bound by the decree in that case ; and their proper course, under ordinary circumstances, would have been, to file a bill to redeem; which they may still do, upon the terms hereinafter indicated; but as the lands sold at the instance of Frye brought two-thirds of their appraised value, which may be regarded as a fair price, unless such bill to redeem is filed as hereinafter provided, a decree will be directed to be entered under the peculiar circumstances of this case, so as not to disturb the sale of said lands already made, under the decree of foreclosure upon Frye’s mortgage in case he will pay to Atchison and the Missouri Insurance Company, to be divided between them in proportion to the amount of their respective claims, the sum of nine hundred and thirty-nine dollars, with interest thereon from the 23d of November, 1842, to the time of payment—$939 being the amount after paying costs, which was realized from the sale under the Frye mortgage, over and above what was due Frye, when the sale was made, on account of indebtedness existing at the time he received notice of the mortgage to Atchison and the insurance companies. If Frye fails to pay the sum of nine hundred and thirty-nine dollars, with interest as above specified, within thirty days from the entry of the decree by the Circuit Court upon the remanding of this cause, then the sale made under the Frye mortgage should be set aside, so far as it relates to any of the lands mortgaged to Atchison and the Missouri Insurance Company, and the lands embraced in that mortgage subjected to a resale. The proceeds thereof to be applied, first to the discharge of the amount due Frye on account of the indebtedness secured by his mortgage, which existed prior to June 15, 1839, after deducting from such indebtedness the amount realized from the sale of the other lands included in his mortgage : that is to say, that seven hundred and eighteen dollars, with interest thereon from November 23, 1842, be first paid to said Frye, out of the proceeds of said resale, and the balance of the proceeds applied, as far as it will go, in discharge of the indebtedness to Atchison and the Missouri Insurance Company, in proportion to the amount of their respective claims. The complainants, Atchison and the Missouri Insurance Company, in case of a resale, will be entitled to a correction of the mistake in the description of one of the tracts of land contained in their mortgage, and also to have the quit claim deed from Shaw to Frye, of his tax title, as well as the tax deed from the collector to Frye, set aside, so far as they relate to the lands to be resold. It would be inequitable to allow Shaw, after mortgaging the lands, to suffer them to be sold for taxes, and by buying them in himself defeat the lien of the mortgage. His purchase of the lands at a tax sale, under such circumstances, must be regarded in the light of a payment of the taxes by him. Douglas vs. Dangerfield, 10 Ohio, 152. Frye, who purchased from Shaw with a full knowledge of all the facts, stands in no better position than would Shaw himself.

It will be proper to direct the execution of another deed from Frye to Smith in the place of the one which was cancelled under' the decree of the Circuit Court, which was afterwards reversed, upon Smith refunding to Frye the amount of money and interest’ which was received from him under the erroneous decree.

In case no resale takes place, Frye will be entitled to all the rents and profits derived from the lands in controversy during the pendency of this suit, and the complainants should be required to refund the several sums which may have been paid them by any of the receivers in the case. But if Frye suffers the lands included in the mortgage to Atchison and the insurance companies to be resold, then the rents and profits derived from those lands should be added to the proceeds of the sale to be distributed as heretofore directed.

If the complainants, Atchison and the Missouri Insurance Company, shall, to the next term of the Circuit Court of Calhoun county, exhibit their bill to redeem from the sale of the lands mortgaged to them, and sold at the instance of Frye, on the 23d of November, 1842, for $1,657 32, then they shall have the right to redeem from such sale, upon the principles recognized in this opinion, and the decree hereinbefore directed to be entered, will be so changed as not to interfere with such redemption ; but if they do not so exhibit their bill to redeem, then the decree directed in this opinion, is to be executed and to be conclusive of the rights of the parties.

The decree of the Circuit Court is reversed, and the cause remanded, with directions to that Court to enter a decree in conformity to this opinion, and to take such other and further steps as the justice and equity of the case may require, and as may become necessary to carry the decree entered into execution.

The costs in this Court and the Court below will be divided equally between the parties. Decree reversed.


source: Caselaw Access Project

license: Public Domain

text:
    John L. Blain, appellant, vs. Jane Harrison, appellee.

      appeal ¿rom •ddams*

    Dower is aright resting in action only, and cannot he assigned.
    A widow may release her dower, so as to bar her from asserting the right against the owner in fee, hut she cannot invest another with it.
    A widow cannot lease her right of dower even to the owner in fee, until after it has been assigned to her.
    Dower, before it is assigned, cannot be sold under an execution.
    A wife who joins with her husband in a deed, is not a party to the deed, except for the purpose of releasing her dower in the estate conveyed, and is not thereby estopped from setting up a subsequent title.
    A wife cannot dispose of her claim for dower, so as to separate it from the principal estate.
    A deed inoperative as to the husband, will not operate to bar the right of dower.
    An equity cannot be interposed to defeat a right of dower.
    Where a widow applies for equitable relief, as to her right of dower, she cannot resist an equitable defence, as against a purchaser for a valuable consideration, who was ignorant of her claim.
    This was a petition, filed by the appellee, on the 23d of March, 1847, in the Adams Circuit Court, setting forth her marriage with Daniel Harrison, and his decease; that during said marriage, her husband was the owner in fee simple of divers parcels of real estate, describing it.
    The petition recites that Wayman Crow and others, ahout the year 1842, in the Circuit Court of Adams county, recovered a judgment against the said Daniel Harrison and one Abraham Jonas, for the sum of $S 3,598 •, that afterwards, in March, 1845, by virtue of an execution issued on said judgment, certain lands (describing them) were sold and struck oif to one Wayman Crow, and that the time of redemption of said lands has expired ; that divers other judgments were also recovered against said Harrison, individually, and against him and said Jonas ; that John L. Blain, the appellee, and others, claim an interest in said land, who were made parties to the petition; and prays an assignment of dower, which she claims had not yet been assigned to her.
    Blain and others answered, admitting the marriage of the petitioner, decease of husband, &c.; and state that they are advised that appellee had not, at the decease of her husband, any right of dower to the lands described in the petition, described as having been sold under the aforesaid execution in favor of Crow and others, and purchased by Crow, because her right of dower was conveyed, transferred and disposed of, long before the death of her husband, by a certain deed of mortgage, embracing the said property alleged to have been sold to said Crow; which said mortgage was duly executed and acknowledged by said Harrison and the appellee, his wife, with relinquishment of dower, according to law.
    At the June term, 1848, of Adams Circuit Court, Purple, Judge, presiding, it was ordered and decreed that the appellee was endowed of the lands in question, and commissioners were appointed to assign her dower. The report of the commissioners was afterwards confirmed by Minshall, Judge. Blain, alone, appealed, assigning for error, that decree was for the petitioner, when by law it should have been for the appellant.
    Williams & Lawrence, for appellant.
    Warren & Skinner, for appellee.
   We do not deem it important, to look into the evidence to determine whether or not the mortgage was properly executed and acknowledged by Mrs. Harrison, as our decision is based upon the supposition that it was so executed and acknowledged. That mortgage, although purporting to be of the entire estate, was in fact only of the right of redemption, for the mortgaged premises had been previously sold to Crow, under the judgment in favor of himself and others. From that sale, neither party ever redeemed, so that the title to the estate became absolute in Crow; and the estate or right mortgaged, was entirely extintinguished, unless the mortgage can operate upon the right of dower alone. After the expiration of the time for redemption, the title of Crow related back to the time when his judgment became a lien upon the premises : and then the mortgage was nothing more than it would have been had the mortgagor himself previously conveyed by deed. The question, then, is, can the wife release her dower, by joining her husband in a deed to one, while he has previously conveyed his estate to another ?

The right of dower in a married woman, is a mere intangible, inchoate, contingent expectancy, and even in a widow, until it is assigned, it is no estate in the land, but it is a right resting in action only, and it cannot be aliened. The widow may release her dower, so as to bar herself the right of asserting it against the owner in fee, hut she cannot invest any one with it—she alone can get it assigned. Seymore vs. Mentun, 17 John. R., 167; Jackson vs. Aspill, 2 John. R., 412. A wddow cannot lease her right of dower before it is assigned, even to the owner in fee. Croade vs. Ingraham, 13 Pick., 33. It cannot be sold under an execution; and where that was done it was held to be no satisfaction of the judgment. Gouch vs. Atkins, 14 Mass., 378. So that neither by the process of the law, nor by the voluntary act of the dowress herself, can the right of dower be transferred, so as to vest the right to have it assigned in another. If she can confer no right, she cannot part with any. She may release this right, it is true, but only so as to unite it with the fee. If the law is so jealous of this right in a widow, where it has become fixed and certain by the death of the.husband, as to hold her incapable of conveying it, with how much more reason may it forbid a wife from vesting in another her right, which is but a contingent expectancy. The former is supposed to bft under no restraint, and may, generally, do with her own as she will; the latter is incapable of parting with a right, except in the particular mode authorized by the law. But it is the nature of the right which renders it incapable of alienation.

A wife who joins in a deed with her husband, is not a party to the deed, except for the purpose of releasing her dower in the estate conveyed by the husband, and is not estopped from setting up a subsequent title. In Walker vs. Griswold, 6 Pick., 417, the wife had joined in the execution of a mortgage, and the Court said : “ The release was coextensive with the mortgage ; it extended no further, and, consequently, the right of dower continued, subject only to that incumbrance.” When the incumbrance ceases as to the estate mortgaged, it necessarily ceases as to the right of dower. When the deed from husband and wife becomes inoperative as to the husband’s estate, as being void for having been made to defraud creditors, or where the purchase money is recovered back for a defect of title in the husband, dower is not barred by the. deed. Simson vs. Sumner, 9 Mass., 143; Robinson vs. Bates, 3 Metcalf, 45. From the very nature of the right, a wife cannot dispose of her claim for dower, so as to separate it from the principal estate. The policy of the law forbids it. If a wife could alien her contingent claim for dower to one, while the husband sells the fee to another, or retains it himself, it would lead to intolerable embarrassments in the conveyance of estates. But we need not go to the common law, or the decisions of Courts, to find this rule. If any doubt could otherwise be entertained, our own statute, we think, has settled the question. By the common law, a wife could only release her dower by joining her husband in levying a fine, when she was examined by the judges apart from her husband. Our statute has substituted a simpler mode of accomplishing the same object ; and it is by our statute alone that a wife can release her dower in this state. By sec. 21, chap. 24, R. S., it is provided that, u it shall and may be lawful for any married woman to release her right of dower of, in, and to any lands and tenements whereof her husband may be possessed or seized, by any legal or equitable title during coverture, by joining such husband in the deed or conveyance for the conveying of such lands and tenements, and appearing and acknowledging the same,” áse. The section then particularly prescribes the manner in which her acknowledgment shall be taken and certified; and, in conclusion, provides, that the deed thus acknowledged, when recorded, “ shall be sufficient to discharge and bar such woman to dower in the lands and tenements conveyed by such deed or conveyance.” In this the intention of the Legislature is manifest, to pursue the policy of the common law, and not allow the wife to alien her right of dower, so as to separate it from the principal estate. By this statute, dower is not barred in the lands and tenements described in the deed ; but in such only as are conveyed by such deed. If the deed is void, or becomes inoperative as to the husband, or conveys no lands or tenements for want of title in him, then it is not allowed to operate so as to bar the right of dower in the wife. Such is the unquestionable rule of law h but it may be said that in a Court of Equity, effect should be given to her transfer or release of this legal claim, by treating her as trustee, and allowing the assignee to use her name to have the dower assigned for his benefit. But the very admission that the assignee must use her name in a Court of Equity, shows that he has no right which equity will recognize; for in this Court, a party who has a right may asseit it in his own name. Besides, this would be equally against the policy of the law and the provisions of the statute. Although Courts of Equity have a concurrent jurisdiction with Courts of law, in the assignment of dower, yet, in the exercise of that jurisdiction, they always treat it as a strictly legal right, and are governed by the same rules of right by which the Courts of law are controlled, and will not allow an equity to be interposed to defeat the dower. Mundy vs. Mundy, 4 Bro. Ch. R., 298; 2 Ves., jr., 122; 1 Story’s Eq., sec. 624. Dower is favored as well in law as in equity. 1 Story’s Eq., sec. 626; Curtes vs. Curtes, 2 Bro. Ch. R., 620. In vindicating Courts of Equity in rejecting an equitable defence in such cases, Judge Story says : “ It is admitted that dower is a mere legal right, and that Courts of Equity, in assuming a concurrent jurisdiction with Courts of law upon the subject, professedly act upon legal principles.” Story’s Eq., sec. 630. Whether the same rale would obtain where the widow, under our statute, was asserting a right of dower in premises to which her husband had only had an equitable title, it is unnecessary now to say. Where the widow applies for equitable relief, which a Court of law could not grant, as the removal of terms, &c., then she cannot resist an equitable defence, as against a purchaser for a valuable consideration, in ignorance of the existing claim of dower. 1 Roper’s Law of Baron and Feme, 446-7. In this case, the widow is seeking to enforce her strictly legal right; asking no equitable relief, and none which could not be granted by a Court of law; and we cannot listen to a defence which would not be available in a Court of law. As the husband only owned a right of redemption, that was all that passed, or was incumbered by the mortgage, and to no greater extent was the dower released. That right was suffered to expire by the lapse of time, when the mortgage became inoperative ; and when it ceased to be a conveyance of the husband’s estate, it could no longer operate upon the wife’s dower. As the mortgagees take no estate in which the widow had a right of dower, they acquired no such right from her. She does not ask to have dower assigned in any estate vested in them by the mortgage which she executed, but in the estate vested in Crow, by virtue of a previous sale, under a judgment and execution; which it is not pretended could affect her dower. Crow took the estate subject to her right of dower, and now makes no objection to her claim.

One of the. defendants in his answer says, that he is the assignee of a bond, given by the husband in his life-time, for a deed for a portion of the premises in which dower is claimed, not embraced in the mortgage; but even admitting that the wife could have barred her dower by joining in that bond, as there is no pretence that she did, it presents no impediment to the relief which she asks.

The decree of the Circuit Court is affirmed, with costs.

Decree affirmed.


author: Opinion by Treat, C. J.:

text:
    Robert R. Greene, administrator de bonis non of Henry J. Ross, appellant, vs. William A. Grimshaw, appellee.

      Appeal from Pike.

    When a person renders services for the benefit of the estate of a decedent, at the instance of the executrix thereof, his claim for compensation is not a personal demand against the executrix j but, on the death of the executrix, may be enforced against the estate, for the benefit of which the services were rendered.
    The acts of an executrix, rightfully done in her official character, are binding on the estate which she represents.
    This was a suit commenced by the appellee before the Court of Probate of Pike county, against the appellant, to recover twenty-five dollars, claimed as a fee, for prosecuting a suit, in the name of Hopestill Ross, as executrix of Henry J. Ross, deceased, against certain parties by the name of Tucker and Sealey. A judgment was recovered on that suit, against Tucker and Sealey, and the money collected upon it was paid to the appellant as the administrator de bonis non (the executrix having died) of the estate of the said H. J. Ross.
    Before the Probate Court, the appellee recovered a judgment for the value of his services, from which an appeal was taken to the Circuit Court of the county; in which Court a trial was had, before Minshall, Judge, and a jury, resulting in a verdict for the appellee for the same sum of twenty-five dollars; upon which a judgment was entered, directed to be levied of the goods and chattels, &c., in the hands of the appellant to be administered, and for costs. Prom this judgment of the Circuit Court, an appeal is taken to this Court.
    War. Thomas, for appellant, made the following points in argument :

      The right of action upon the note of Tucker and Sealey was in Hopestill Ross. She, alone, could maintain an action for the recovery of the money due thereon. 1 Chitty, 38; 2 H Blackstone, 563, note a; McHenry vs. Ridgley, 2 Scam., 310; McConnell vs. Thomas, ibid, 314; 2 Starkie, 318; 3 East, 400 to 409. If Hopestill Ross had died, before judgment against Tucker and Sealey, the right of action upon the note would have survived to her executor, and not to the administrator of H. J. Ross. Toller on Ex., 431—2; 1 Williams on Ex., 556, 643, 656—7. Upon the death of Hopestill Ross, her executor alone could proceed by scire facias upon the judgment. Toller on Ex., 441, 448, 450; 2 Saunders, 72, n.

    Although it may be true, that if the note of Tucker and Sealey had been given for a debt due to, or a liability in favor of H. J. Ross, in his life-time, or for a liability to the executrix, in her fiduciary right, a special action might have been sustained in the name of the administrator de bonis non, yet no such state of fact exists, or was pretended in this case. Catherwood vs. Charband, 8 Eng. Com. Law Rep., 46; King &c., Ex. Stephenson, vs. Thorn, 1 Term Rep., 487; Carne and wife vs. Watts, 6 East, 408.
    No evidence was given in respect to the solvency or insolvency of the estate of H. J. Ross, and the judgment should have been made payable in the course of administration, and not out of goods, &c., in the hands of appellant, to be administered. Peck, Adm., &c., vs. Stevens, 5 Gilman, 127. The judgment for costs is erroneous. Rev. Laws, 558, sec. 101.
    R. S. Blackwell, with whom was J. Grimshaw, for appellee :
    The bill of exceptions is defective. It does not purport to contain all of the evidence. 5 Gilm., 298. The exceptions were not taken at the time of the trial. 3 Scam., 63. The record read by appellee in the Court below, and objected to by appellant, is not set out in the bill of exceptions. 5 Gilm., 209. An administrator or executor cannot retain under our laws. R. S., 561, sec. 121. Paschall vs. Hailman, 4 Gilm., 297, 301. The executor of Mrs. Ross did not thereby become executor of the estate of Henry J. Ross. R. S., 541, sec. 22. An administrator de bonis non possesses the same powers and rights, and is subject to the same liabilities, as the original administrator. R. S. 1833, 636, sec. 71; Toller on Ex’rs, 243; Floyd vs. Breckenridge, 4 Bibb, 14; Bacon’s Ab., title, “ Ex. and Adm.,” B 2 and 3. There is such a privity'in law between Grimshaw and Greene as will support this action. Hirst vs. Smith, 7 D. & E., 182. The judgment for costs in this cause is correct. Welch vs. Wallace, 3 Gilm., 490; R. S., 556, sec. 95. There is no award of execution in this case. The word levied means paid. 3 Gilm., 490; 5 ibid, 127.
    If the judgment is informal, the proper judgment will be entered up in this Court. 1 Scam., 55, 110; 3 Scam., 63, 478; 1 Gilm., 491; 3 Gilm., 490.
   Opinion by Treat, C. J.:

It satisfactorily appeared in evidence, that the services of the appellee were rendered for the benefit of the estate of Henry J. Ross. He was retained by the executrix of the estate, to prosecute a suit on a note made payable to her, as executrix. The suit was brought and a judgment obtained in her favor, as executrix. After her death, the judgment was collected, and the money paid over to the appellant, as the administrator de bonis non of Henry J. Ross. He treated the proceeds of the recovery as assets of the estate. It is clear, therefore, that the note was, in fact, the property of the estate, and did not belong to Mrs. Ross, in her individual right. The services were performed for the estate, and not for Mrs. Ross personally. The estate received the benefit of the services, and ought to make the proper compensation. The appellee was employed on behalf of the estate, and had the right to look to the estate for payment. The fact that he was retained by the executrix, makes no difference. Her acts, rightfully done in her official character, are binding on the estate, and any liability arising therefrom can be enforced against the appellant. As the repreresentative of the estate, he is bound by the lawful acts of the executrix, in respect to the estate.

The judgment is not erroneous. It does not, as in the case of Peck vs. Stevens, 5 Gilman, 127, and the cases there cited, award execution against the effects of the estate. Nor is the appellant personally responsible for its payment. It only liquidates and establishes a demand against the estate, which he is required to pay in the due course of administration.

The judgment of the Circuit Court must be affirmed, with costs.

Judgment affirmed.


author: Opinion by Mr. Justice Catón :

text:
    Thomas Lewis, appellant, vs. John B. Moffett, appellee.

      Appeal from Sangamon.

    If it is expressly agreed, that a partner is not to give his personal services for the benefit of the firm, he may recover from his copartners for services rendered the joiiit concern, at their instance and request.
    On the 14th October, 1848, John B. Moffett filed in the office of the clerk of Sangamon county Circuit Court, his bill in chancery against Thomas Lewis and Willis H. Johnson, in which it was alleged, that on the 1st February, 1848, said Lewis, Johnson and the complainant entered into written articles of copartnership, as follows :
    “Articles of copartnership entered into this day between Thomas Lewis and Willis H. Johnson, and John B. Moffett, all of the city of Springfield, Illinois, under the style of Lewis, Johnson & Co.:
    “ Article First. Each party to invest one thousand dollars in stock or cash, making a capital of three thousand dollars, which may be increased. Secondly. Each partner to share equal in the profits or loss of the foundry and machine business. Thirdly. The said Lewis agrees, in lieu of his services, to furnish the foundry and machine shop now occupied by Lewis & Johnson, free of rent, and purchase stock for the concern in St. Louis, when there, free of charge to the firm. Fourthly. The said Johnson will be expected to devote his entire time to the mechanical interest of the concern, except such time as his private business requires. Fifthly. The said Moffett will be expected to devote his entire time to the financial and mechanical interest of the concern, except such time as his private business requires. Sixthly. It is understood and agreed, that for a valuable consideration by the said John B. Moffett to Lewis & Johnson paid, that the said J. B. Moffett is to be entitled to the one undivided one-third part of interest in Willis H. Johnson’s patent pump, for whatever territory may remain unsold in the U. S., on the first of February next; also, in the event of Lewis & Johnson obtaining a patent for a churn that they have applied for, said right is to belong equally to the firm of Lewis, Johnson & Co., as well as an electro-magnetic machine that the company are now building. Lastly. That the firm is to continue so long as the parties may agree or desire its continuance, unless dissolved by Providential dispensation.”
    The firm was dissolved by mutual consent, August 3, 1848. The complainant further alleges, that at the time the said co-partnership was entered into, the said Lewis & Johnson were expecting to obtain a patent for an atmospheric churn, and sets out so much of the sixth article as provides, that in the event of obtaining said patent, the right was to belong equally to the firm. That it was then contemplated and intended by said Lewis, Johnson & Co., to sell their interest in said patent as opportunity offered, and their interest would seem to require, and equally to divide the proceeds arising from the sale, after paying necessary expenses attending the same. Charges that the complainant, by said agreement, became entitled to one-third of said proceeds ; that the.said patent issued in May, 1848; that no conversation wTas ever held or agreement made in reference to any one of the partners acting in the capacity of an agent for the firm; that Thomas Lewis, having private business in St. Louis, concluded to take said churn, which he, complainant, had prepared, with him to St. Louis, and, if an opportunity should offer, to sell the rights acquired by the said patent; that said Lewis, upon his arrival in St. Louis, sold rights to sundry individuals, for cash, notes, and property; and charges that whatever Lewis did, he did as partner of the firm of Lewis, Johnson & Co.; that there never was any agreement between the members of said firm, by which said Lewis was recognized as agent of the firm ; nor any agreement to allow him any extra compensation for his services, nor commissions on the sales which he made; but that whatever was done by him was done under those general rules and regulations by which partnerships are governed. The bill then sets forth, as the complainant alleges, a general statement of the amount of notes and articles for which rights were sold—making the gross amount $ 5,047, as near as complainant could ascertain the same; that the statement contains the nominal amount at which the property was received, but in consequence of the manner in which the rights were sold, and the anxiety on the part of Lewis to effect sales, but little regard was had to the actual value of the property received in exchange; that the real estate is not worth one half the amount at which it was received, and that a liberal deduction should be made from the nominal value of the personal property. Further, that the sales were effected in the latter part of May and the commencement of June, 1848; that on the 7th of July, 1848, the partners divided the real estate, by bidding against each other for the same; that the depreciation below the nominal amount at said division was $ 5,387; besides which, there were sixty quarter sections, situated in Missouri, of which each partner took twenty, at the nominal value of $ 6,000; but, as the complainant believes, were not worth $ 3,000—making a total depreciation on real estate of $ 8,387 ; that on August 7,1848, a like division of part of the personal property was made, in same manner, and taken by the partners at greatly reduced rates, which complainant alleges to be nearly their real value; that the other part of the personal property was sold for cash at different times, which was invariably retained by Lewis, and complainant filed, as he alleged, a copy of a statement, showing the amount of sales, description of property, disposition of same, nominal prices, and the prices at which the same were taken by the respective partners. Alleges that in said divisions, property was taken, part at its real value and part at a nominal value, amounting to $ 4,256, according to the statement filed with his bill, but which he alleges does not exceed in value $ 3,000 ; and that this is all that complainant has obtained from the proceeds of said partnership enterprize; that at said division, Johnson obtained property amounting to $ 3,659 88, and said Lewis to the amount of $9,911 67, according to exhibit filed by complainant with his bill; that besides the amount of property above stated as having been obtained by Lewis, he, Lewis, retained possession of notes amounting to about $ 17,806 70, and the control of a judgment of $ 530, and a mortgage of $ 520; that Lewis utterly refuses to make a division of the same, or make further settlement with the other partners of the firm, but demands one-third of the gross proceeds of sales, or about $ 17,000, as commissions for his attention to the partnership business. The complainant then prays that Lewis & Johnson be made defendants, and answer severally, and Lewis be required fully to account j that an equitable division of notes be made among the several partners, or that a receiver be appointed to receive and divide the proceeds from time to time, according to the terms of the partnership, by allowing to each partner one-third of the proceeds ; that said Lewis be allowed only his necessary expenses for attending to the business of the firm, and that no allowance be made as extra compensation or commissions for his attention to the partnership business, and such other and further relief, &c.
    On the 15th of January, 1849, Thomas Lewis filed his answer, under oath, in which he admits that the written articles of co-partnership filed with complainant’s bill, are the only written articles ever executed by them, and that the same contained the true terms of the partnership; that at the time said article was entered into, it was in contemplation of Lewis & Johnson to obtain a patent for an atmospheric churn, and that when the same was obtained the right was to belong equally to the firm of Lewis, Johnson & Co., and that said patent was obtained; and asserts that complainant, without the knowledge of his partners, kept his son in Springfield, with the expectation of sending him out to sell said rights, at the usual pay of an agent—one-half of the proceeds. He further states, that he was about visiting St. Louis on business of the firm of Lewis & Adams, and at the request of the complainant, and his co-defendant, Johnson, deferred his visit until a churn could be prepared for him ; that after the churn was prepared, he did proceed to St. Louis, and there disposed of the rights to said churn. He expressly denies that he transacted said business and disposed of said rights, sold by him, in his capacity as partner in said firm of Lewis, Johnson & Co., but as the agent of said firm, for the sale of said rights, and with the expectation of receiving commissions therefor, as agent; further, that he was under no obligation to render his services or devote his time for the benefit of said firm—such being the express provision of the partnership—and, also, independent of the written article, the express understanding of all the partners. He further states, that had he not acted for said firm, as agent for the sale of these rights, they would necessarily have been compelled to have employed agents therefor, and paid them one-half of the proceeds of the sales—such being the usual commission to agents—which expenses must have been deducted from the amount before the partners could share the remainder. He claims, and by his answer insists upon, his right to retain one-third of the proceeds of sales, for his commissions as agent aforesaid ; that he remained several weeks in St. Louis upon this express business, and so remained at the earnest solicitations of complainant and Johnson, urging him not to return until he had disposed of the entire right; and complainant urging him not to return so long as he could make sales; that in making sales he used his utmost endeavors to promote the interest of the concern, and in his exchanges for property, made the best trades he could; does not believe that any other agent would have realized one-third as much as he did; that at the time of the sales, he was bound by his agreement with the firm of Lewis & Adams, to devote his time to them, and the time so employed was taken from his business as a member of that firm. He does not admit the correctness of complainant’s exhibit, but files a full statement and full account of the matters contained in said bill. Avers a full communication of his knowledge in relation to property, his willingness at all times to furnish full statements to complainant, and offers to refer the whole matter to arbitration.
    To this answer complainant filed a replication.
    Willis H. Johnson filed his sworn answer to the bill, in which he admits the formation of the partnership at the time stated in the bill; the correctness of the copy of the articles of partnership—that it is the only one ever executed by the partners, and contains the true terms thereof—the expectation of the patent; that when issued the right should belong equally to the firm, and the issuing of the patent; that Moffett, in his presence, informed Lewis that he had kept his son, Thomas Moffett, in Springfield, though -without his knowledge or that of respondent, for the purpose of employing him as an agent to sell rights for churn and pump; that Lewis was about to visit St. Louis on the business of the firm of Lewis & Adams, about the time when the patent was received; that by the request of the respondent and complainant, Lewis deferred his starting until a churn could be prepared for him; that the said Lewis was requested to delay his journey until he could procure one of the churns, that he could comply with the request of this respondent, and act for the firm in selling patent rights for the same in St. Louis ; that Lewis did wait until the churn was made, and did go to St. Louis, where he remained ahoutfour weeks, selling said patent rights for the firm as aforesaid; that after said Lewis had been at St. Louis about two weeks, he informed this respondent and complainant of his progress up to that time, and that he intended to come home immediately; whereupon this respondent wrote to him, urging him to stay there as long as he could make sales, and he believes the said complainant did the same; that in compliance with the said request, the said Lewis did remain longer and made large sales, of the amount he knows nothing of his own knowledge, hut refers to and adopts Lewis’ answer in relation thereto ; that there was no express agreement before or at the time of Lewis’ visit to St. Louis, as to the capacity in which he was to sell these rights—-whether as partner or agent—but respondent believes, from the nature of the contract between the parties, and the understanding of the partners, that Lewis was to devote no part of his time to the business of the firm of Lewis, Johnson & Co. Avers that said Lewis is entitled to commissions, as he claims in his answer, and, on his part, he has no objection to make thereto. Is satisfied with the manner in which Lewis sold.
    At August term, 1849, of the Sangamon Circuit Court, Davis, Judge, entered a decree, allowing Lewis one thousand dollars, as a reasonable compensation for his services in making sales of said patent right, and directing a division of the residue among the partners equally.
    if rom this decree Lewis appealed, assigning for error, the rendering of said decree in favor of Moffett.
    S. T. Logan and Stuart & Edwards, for appellant.
    Lincoln & Herndon and J. C. Conicling, for appellee.
   Opinion by Mr. Justice Catón :

It is undoubtedly a general rule that one partner cannot charge the other partners or the firm for services rendered in the business of the copartnership, unless there is an express agreement to that effect; or where such agreement may be implied from the course of business between the copartners, or from the nature of the services rendered in connection with the duties and obligations imposed by the copartnership articles upon the several members of the firm. This general rule, that one partner cannot charge the firm for extraordinary services, results from the fact, that there is an implied obligation in every partner to exercise due diligence and skill, and to devote his services and labors for the promotion of the common benefit of the concern.” Story on Part., sec. 182. When this reason fails, the rule itself must be relaxed. When it is impossible to determine how far the skill and experience of each, which was to be applied to the business of the firm, induced the terms upon which the copartnership was formed, it would be manifestly unjust for the Courts to undertake to inquire which had rendered the most services to the concern.

In this case, the duties imposed upon Lewis towards the firm, as respects his personal services, do not depend upon an inference of law, but are regulated by the express agreement of the parties, in the copartnership articles, as follows : The said Lewis agrees, in lieu of his services, to furnish the foundry and machine shop, now occupied by Lewis & Johnson, free of rent, and purchase stock for the concern in St. Louis, when there, free of charge to the firm.” Here, then, the appellant, for a sufficient equivalent, was absolved from that obligation which the law would otherwise impose upon him, to devote his services and labors for the promotion of the common benefit of the concern.” This duty, thus imposed by the law upon partners generally, is the reason assigned why a partner cannot charge the firm for services rendered.

In this case, it is true there was no express contract that Lewis should be paid for the services which he should render in the sale of the patent right; but when he was expressly requested and employed to render those services, which he was under no more obligation to render than a stranger, and when he has devoted his time and talent to the business of the firm upon such request, it is but reasonable and just that he should be paid for such services. His time and talent were as much his own as was his capital, and as much entitled to be taken into the account in the formation of the copartnership. This was done in the arrangement made, and the former were reserved to his own use. Suppose, by the partnership articles, he had been exempted from paying any portion of the rent of the foundry and machine shop, in consideration of personal services which he had agreed to render, and that afterwards, at the request of the other members of the firm, he had paid the rent, would any one contend that he was not entitled to be reimbursed ? Take this very case—and we have but to reverse the proposition—suppose Johnson and Moffett had paid the rent of these buildings, which Lewis had agreed to furnish free of rent, their claim to have that taken into the account in a final settlement would be denied by no one. If they might claim to be indemnified for the payment of rent, which by their agreement they were exempted from paying, why may not Lewis be paid for rendering services which, by the agreement, he was expressly exempted from rendering ? In no case that we are aware of, where it has been held that, in the absence of an express agreement, one partner should not recover for rendering more services than the other members of the firm, was he exempted by the partnership agreement from rendering those very services for which he had charged the firm; and that is the reason assigned by Judge Story why such claim should be disallowed. Story on Part., sec. 182. But there is no inflexible rule of law that one partner shall not recover for extraordinary and unusual services, without an express agreement that he shall be paid for such services. The case of Bradford vs. Kimberly, 1 Johns. Ch. R., 431, shows that where certain members of a firm are employed to render services, which the law, or the agreement of the parties, does not impose upon them as partners, there the law implies an agreement that they shall be paid. After stating the general rule, the chancellor in that case proceeds : “But where the several owners meet and constitute, one of the concern an agent to do the whole business, a compensation is necessarily and equitably implied in such special agreement, and they are to be considered as dealing with a stranger.”

It is true, as was insisted on the argument, that the statement in the answer of Lewis, that he sold the patent rights as agent of the firm and not as partner, is not conclusive as to the character in which he acted; but that character must be determined from the facts established. That he rendered the services at the request of the other members of the firm, is abundantly established. As lie was on the point of starting to St. Louis on other business, the patent for the churn arrived from the patent office. One of the active members of the firm requested him to postpone his departure until a churn could be manufactured, and to take it with him to St. Louis and sell the rights. Upon such request he did postpone his departure for several days, until the churn was completed, which he took with him to St. Louis, and made the sales. All the circumstances of the case show that the other partner acquiesced in and approved of this employment, even if that were necessary. Here, then, was an express agreement to employ Lewis to render services which he was under no more obligation to perform than a stranger; and the law must imply an agreement to render him a reasonable compensation therefor.

To what compensation is the appellant reasonably and justly entitled ? The evidence on this point is very voluminous, but it is unnecessary to state and review it all minutely. The nature and character of the services rendered, the time employed, and the results accomplished, admit of no dispute. The balance of the testimony is principally made up of the opinions of witnesses as to the value of the services rendered, and of the commissions usually allowed in the sales of patent rights. Of this last branch of the evidence, it may be here remarked, that while it may be entitled to be considered, upon the question of the amount of compensation to be allowed, it by no means establishes such an usage as to be binding upon the parties, as an implied contract. In order to give a usage that effect, it must have become so universal and notorious as to raise a reasonable inference that the parties acted in reference to it, and with the expectation of being governed by it, without a particular allusion to it. That a majority of patent rights are hawked about the country by trading agents who receive a commission upon the amount of their sales, may be truc ; yet this is by no means universally the case. Nor are the commissions allowed these itinerant agents, by any means uniform; frequently varying, as it appears, from one-fourth to one-half of the amount of sales effected. Nor with any degree of propriety or justice could they be uniform, unless all patent rights were equally valuable, or at least equally saleable.

While the opinions of witnesses, who have been extensively engaged in the sale of patent rights, as to the value of these services, may not be absolutely binding upon the Court, yet they are certainly entitled to serious consideration. But after all, we must look to the nature and character of the services rendered, the time employed, the skill and talent exercised, and the benefits derived to the firm, and then, by exercising our own judgments, in connection with the judgments of others, where, as in this case, their opinions are not necessarily conclusive, we must come to the most satisfactory conclusion at which we can arrive.

The appellant went to St. Louis with this churn, and in the course of a few weeks sold out the entire right to various individuals, for the nominal aggregate sum of $52,000, and for which the firm actually realized the sum of $ 38,000. Now, the time actually employed was very inconsiderable, but the results were truly wonderful, when we consider the sales were made upon an actual exhibition of the churn, when the testimony shows, and all now seem to admit, that the invention is really valueless. Yet it is but justice to say, that we do not believe that this fact was known to any of the parties at that time. There must have been a certain speciousness about the churn, which deceived Lewis, as well as his victims, as to its real value. Whatever plausibility there was about this invention, which commended it to the favorable notice of purchasers, ought to inure to the benefit of the owners of the patent, while Lewis may be entitled to the merit of whatever skill he displayed in presenting these commendable appearances to the view of purchasers, and the judgment with which he made his contracts. His success ought to satisfy any reasonable ambition in that way. Although he may not be entitled to the merit or demerit of having imposed, by the force of his genius alone, upon the purchasers, so as to have realized that large sum from the sales of an invention, which, in the hands of another, would have produced little or nothing, yet that his services were very meritorious, to the firm, at least, cannot be disputed, and the other members ought not to object to paying him a proportionate compensation, and one which ought abundantly to satisfy him for the time and labor bestowed. Were we to be governed by the opinions of a majority of those witnesses who have expressed opinions, as to the amount of compensation to which the appellant is entitled, we might have to allow even the full extent of his present claim, yet we cannot shut our eyes to the fact, that most of those wit.nesses arrive at their conclusions by assimilating this to other patent rights ; which, while they may have been, intrinsically, more valuable, yet were undoubtedly less saleable. To allow the claim of $ 12,000, now set up by Lewis, we think would be extravagant; and it is manifest, from his own conduct, that he did not originally consider himself entitled to that amount. We may reasonably suppose that he designed to retain in his own hands, independent of the wares left with Lewis & Adams for sale, enough, over and above his proportion as partner, to compensate him sufficiently for his services. By having paid over the balance to the other members of the firm, he indicated a limit, beyond which he did not expect to claim for his commissions. His whole conduct shows that he would not be likely to pay over to his partners more than what he considered their just proportion of the proceeds of these sales. By allowing him what he did retain, we give him no stinted compensation; but as we think the evidence abundantly warrants this, we have determined, for the want of a more satisfactory criterion, to adopt that as the measure of his compensation. To this, at least, Johnson in his answer does not object. As the decree which Moffett obtained against Lewis for $ 1,377 41, was for his proportion of these sales, which had been retained by Lewis, over and above the compensation allowed him by the Circuit Court, it follows that that portion of the decree must be reversed, and the balance of the decree must stand affirmed. The costs of this Court must be equally divided among the parties.

Decree reversed.