text:
    William T. Irwin, Admr. v. Mary Wollpert et al.

      Filed at Ottawa

      May 16, 1889.

    1. Devise—of an anrmity charged upon rents and profits—whether chargeable upon the corpus of the estate. A direction in a will to pay an annuity out of the rents and profits of lands dévised, charges only the rents and profits, and not the corpus of the estate, unless a contrary intention appears, and can be enforced only against the devisees personally, so far as they have received the rents; and the fee or other estate in the realty can not be sold to provide the annuity.
    2. Same—the annuitant incumbering part of the estate yielding the rents and profits—liability of the residue. A testator devised lot 1 to A, his son, and lot 2 to B, O and D, his grandchildren, and gave his widow a yearly annuity of $300, “to be issuing and payable out of” said lots; and the will provided, that if any part of such annuity should remain unpaid after the expiration of thirty days from the time the same should be due and payable, the widow might enter into the premises so charged and receive the rents and profits thereof until the annuity was thereby paid, or paid by the devisees. The widow and the son, A, gave a deed of trust, for a loan to the latter, on lot 1, un^ler which a sale was had, in default of payment, and the title was thereby lost. Lot 1 was the most valuable of the two lots. It appeared that the widow received all the rents and profits of both lots until the sale under the trust deed, and of lot 2 to her death, through her agents, and that B, 0 and D were never in possession of lot 2, and never received any rents of the same : Held, in a suit by the administrator of the widow, to collect the annuity, that the devisees of lot 2 were not liable for any part of the annuity, and that if they were liable they could only be chargeable with a ratable part thereof.
    3. In such case, the widow, by joining in the trust deed, whereby the title to one lot became lost, relinquished all claim to a ratable part of her annuity, which should have been paid out of lot 1; consequently, neither she nor her administrator could charge the whole of the annuity against the grandchildren’s lot, even if they were liable beyond the rents and profits thereof.
    4. Same—allowing the animity to accumulate. If the annuity should not be paid, the will provided a remedy by taking possession of the lots; and the widow could not lie by and neglect her remedy, and permit the annuity, without the fault of the devisees, to accrue from year to year, until it was sufficient in amount to swallow up the fee of the lots, and then ask a court of equity to have them sold to satisfy her claim.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Peoria county; the Hon. S. S. Page, Judge, presiding.
    Mr. James A. Cameron, and Mr. William S. Kellogg, for the appellant.
    Mr. Dan F. Baum, and Mr. N. Ulrich, for the appellees.
   Mr. Justice Wilkin

delivered the opinion of the Court:

George M. Young died in April, 1873, seized in fee of lots 1 and 2, block 66, in Monson & Sanford’s addition to Peoria, Hlinois. By his last will he devised lot one (1) to his son, Gottlieb M., and lot two (2) to appellees, children of his deceased daughter. He gave his wife, Christiana G. Young, an annuity of $300, to be paid out of said lots, that part of the will being in the following language:

“I give, devise and bequeath to my wife, Christiana Gottlieben Young, and her assigns, for and during the term of her natural life, one annuity or clear yearly rent or sum of $300, free of all taxes or other deductions, to be issuing and payable out of the real estate above devised to my son, Gottlieb M. Young, and to the children of my daughter, Juliana Catherine Wollpert, in equal quarterly payments, at Peoria, on the first day of January, April, July and October, in each and every year, as aforesaid. And I do hereby charge and subject the said real estate with and to the payment of the said annuity or yearly rent or sum of $300, at the times and in the manner aforesaid, fully empowering and authorizing my said wife and her assigns,—provided said annuity, or any part thereof, shall remain unpaid after the expiration of thirty (30) days from the time the same shall be due and payable, as aforesaid,—to enter into all and singular the premises charged with the annuity, as aforesaid, and the rents, issues and profits thereof, to receive and take until she and they be therewith and thereby, or by the person or persons then entitled to the immediate possession of the premises, paid and satisfied the same, and every part thereof, and all the arrears then due and payable, together with her and their costs, damages and expenses paid out and sustained by reason of the non-payment thereof.”

The son, Gottlieb M., and the wife, Christiana G., were appointed, by his will, executors.

On the 23d of November, 1875, the said Gottlieb M., with Susannah, his wife, and the said Christiana G., executed and delivered a trust deed on said lot one (1), to secure a loan of $2000 to said Gottlieb M., under which the lot was after-wards sold, and the title thereto vested in one Archibald McMasters, February 1, 1879. He then took possession, and from that date he and his grantee, Sarah McMasters, continued to occupy the premises and enjoy all the rents and profits of the same to the filing of the bill herein. Gottlieb M. died October 10,1881, leaving Susannah, his widow, and several children. Christiana G., appellant’s intestate, died in 1885, and he was duly appointed her administrator. The said Susannah Young filed her claim against the estate for boarding, nursing and washing for deceased, which was allowed February 8, 1887, for $1935.10. Pending this claim in the county court, appellant filed this bill, seeking to recover an unpaid balance of said annuity.

By the original bill, he sets up the said will of George M. Young, and avers that at the time of the death of the intestate there was due her on said annuity, and that the same was and is a charge and incumbrance upon both of said lots one (1) and two (2), and a valid lien thereon, superior to all other liens or claims thereto. The prayer of the bill is, “that the amount of the said annuity due and unpaid to said Christiana G. Young at the time o'f her death, be ascertained, and by this court declared a valid and subsisting lien on both of said lots, and that said defendants, or some of them, may be decreed to pay said amount of due and unpaid annuity to complainant, as administrator to the estate of said Christiana G. Young, by a short day to be fixed by the court, and that in default of such payment said lots may be decreed to be sold ,by the master in chancery, as in ease of foreclosure of mortgages under decree in chancery, to satisfy said lien for said annuity. To this- bill, appellees, the said Susannah Young, who is averred to-be in possession of said lot two (2), claiming some interest therein, Sarah MeMasters, John D. Hall and C. W. Edwards, who are in possession of said lot 1, claiming some interest therein, and the children and heirs of Gottlieb M. Young, deceased, were made parties defendant. The bill was afterward dismissed, by complainant, as to Sarah MeMasters, John D. Hall, C. W. Edwards and Susannah Young. A part of the children of Gottlieb M. Young, being minors, answered by their guardians ad litem, the adults not answering.

Appellees answered, admitting the facts set up in the bill as to title in George M. Young, devise to Gottlieb M. Young and themselves, and the annuity to Christiana G.; but they deny that any part of said annuity remains due and unpaid to her or her administrator, averring that the same has been fully paid; that from the death of said George M. Young to her death, she was in possession of lot 2, and received all the rents and profits thereof, which much more than paid and satisfied that part of said annuity chargeable against said lot; that she also took possession of and had all the rents and profits of lot one (1), until the sale thereof under said trust deed, which is set up in their answer.

The cause being referred to the master in chancery to take and report the proofs, together with his conclusions, he reported, that from the evidence he found, that from the death of the said George M. Young to April 10,1881, the said Gottlieb M., for his mother, Christiana G., collected and used the whole of the rents and profits of said lots, except that on lot one (1) none accrued after February 1,1879; that after his death, the said Christiana G. continued to reside with his widow, the said Susannah, until she died, during all of which time the said Susannah continued to collect, use and appropriate, as the agent of Christiana G., all the rents and profits of said lot two (2); that said Christiana G. died on said lot two (2), being in possession thereof, residing thereon with said Susannah. Exceptions to this report being overruled, appellant obtained leave of court to amend his bill, and did so by setting up title to lot one (1) in said Susannah, under an alleged parol agreement between her and George M. Young, by which he agreed to convey her said lot 1, provided she would cause to be built thereon a dwelling house. When this contract was made, when the house was to be built, what it should cost, and when the deed was to be made, does not appear; but it is averred, generally, that she performed the contract on her part, taking possession of said lot, but that he failed and neglected to make the deed to her. The object of this amendment seems to be to charge the whole of .said annuity on lot two (2), notwithstanding, by the terms of the will, it was payable out of-both lots. The cause being finally submitted on the pleadings and the master’s report, the bill.was dismissed for want of equity, at complainant’s costs. That decree was affirmed by the Appellate Court.

There is no equity in the original bill, on its face, and certainly, as amended, it can not be said to appeal to the conscience of a court for the relief prayed. It is not pretended by the bill, that appellees ever had possession of lot two (2), even to the date of filing the bill, or that they ever received any of the rents thereof. There is nothing in the bill to show that Christiana G. did not exercise, or could not have exercised, her right, under the will, to take possession of and receive the rents and profits of said lots, thus fully satisfying her annuity, as provided by the terms of the will. She could not, therefore, permit her annuity, without the fault of appellees, to accrue from year to year, until sufficient in amount to swallow up the fee of these lots, and then ask a court of equity to have them sold to satisfy such claim. Besides, we think it is clear, from the provisions of the will giving her the annuity, that it was not a charge upon the lots themselves, but only upon the rents and profits of the same, which being true, her rights were only enforceable against such rents and profits, and not against the corpus of the estate. “A direction to pay an annuity out of the rents and profits, charges only the rents and profits, and not the corpus of the estate, unless a contrary intention appears, and can be enforced only against the devisees personally, so far as they have received the rents, and the fee and life estate in the realty could not be sold to provide the annuity.” Delaney v. Van Aulen, 84 N. Y. 16.

Again, the theory of the bill is, that the annuity was made a charge upon both lots, each to pay a ratable part thereof; but the administrator, of his own motion, seeks to have the more valuable of the two entirely discharged, and the whole charged against appellees. To permit that to be done, would be to violate the expressed provisions of the will, and that, too, without the slightest equitable ground therefor. What right has the administrator to set up adverse claims in third parties to defeat the will of George M. Young, if the construction he places upon it is correct ? It also appears that his intestate voluntarily joined in the trust deed, by which the title to lot 1 became vested in McMasters, and she certainly thereby relinquished all claim to a ratable part of her annuity, which should have been paid out of said lot 1. She could not, therefore, nor can her administrator, charge the whole of said annuity against appellees, even if they were liable beyond the rents and profits of said lot 2.

On the theory of the case as tried in the court below, the conclusion reached by the Appellate Court is clearly right, and we are satisfied with the views expressed by that court in the opinion rendered by Smith, J. There is no merit in the cause made by appellant, either in law or in fact.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    The National Bank of Illinois v. Mary S. Baker.

      Filed at Ottawa

      May 16, 1889.

    1. Pledge—sale of thepledge—before and after maturity—demand of payment—notice to redeem. Ordinarily, when a pledge of property is made to secure the payment of indebtedness, the pledge can not be sold until after the debt is due and demand is made to redeem, and notice is given of the. intention to sell.
    2. Parties may, however, by contract, agree that in certain contingencies the pledge may be sold before the debt is due, or that it may be sold without previous notice, etc. But in such case, what is the contract must be determined from the language used, and not from a consideration of what would best subserve the interests of the creditor, for the law has no greater regard for his interest than it has for that of the debtor.
    3. The rule at common law was, that the pledgee must give notice to the pledgor to redeem, before he could sell. The purpose of this notice was to terminate the indulgence and require the pledgor to protect his property, while notice of the sale is to invite competition and secure the best price attainable by a sale.
    4. Where the sale is only to be made in the event of failure to make payment at the maturity of the debt, it may'be that the pledgor is not entitled to a demand of payment. But when the pledgee elects to sell the pledge before the debt is due, because of the happening of a contingency provided for by agreement, the pledgor is entitled to notice to redeem, and that the pledgee will not wait till the maturity of the debt. A sale without notice, in such case, will not pass the pledgor’s right of redemption.
    5. Same—sale before maturity—in case of depreciation of pledge “in market value”—worthless stocks. The makers of a promissory note deposited in pledge with the payee certain certificates of shares in a corporation, and also a life policy of insm-ance of one of the makers of the note, calling for $5000. The certificates of stock proved to be counterfeits, and worthless. The contract of the parties provided, that on default of payment of the note at maturity the pledgee might sell the pledge, and also, “in the event of said security, or any part thereof, depreciating in market value,” that the pledgee might, either before or after maturity of the note, sell the pledge, either at public or private sale, and waive any and all notice of the sale to the pledgors: Held, that the words “depreciating in market value,” had no reference to the security of the certificates of stock, for, being worthless, their value could not depreciate; and that a sale by the pledgee before the maturity of his debt did not pass the absolute title, but that the pledgors might redeem the same by payment of the note when due.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Gwynn Garnett, Judge, presiding.
    Mr. Matthew P. Brady, for the appellant:
    A power to sell collaterals may be given by the contract -of pledge. Such a power is not contrary to public policy. The terms of the contract of pledge govern the rights of the parties as to the time, place and notice of sale. Colebrook on Collateral Securities, p. 162, sec. 118; Union Trust Co. v. Rigdon, 93 Ill. 458; Loomis v. Stave, 72 id. 623; Zimpleman v. Veeder, 98 id. 614; Milliken v. Dehon, 27 N. Y. 364; Choteau v. Allen, 70 Mo. 290.

      Under a special authority to sell collaterals upon default, without notice, all notice of the time and place of sale, such as the law requires in the absence of a special agreement, is waived. Insurance Co. v. Dalrymple, 25 Md. 242; 25 id. 269; Bryson v. Rayner, id. 424; 29 id. 473.
    If the pledgee, under a power of sale conferred on him, makes a bona fide sale of the collateral to one capable of buying, the sale will pass the title to the collateral beyond the pledgor’s reach. Zimpleman v. Veeder, 98 Ill. 614; Lewis v. Mott, 36 N. Y. 395; Duncomb v. Railroad Co. 84 id. 190; Union Trust Co. v. Rigdon, 93 Ill. 458; Jerome v. McCarter, 94 U. S. 734; Bridge Co. v. Douglas, 12 Bush, 673; Railroad Co. v. Iron Co. 50 N. H. 57.
    A bona fide sale of collaterals, made after default, under a power of sale, vesting the title in a purchaser for value in good faith, is not affected by a tender of the debt and charges made subsequently thereto. Loomis v. Stave, 72 Ill. 623; Choteau v. Allen, 70 Mo. 290; Colebrook on Collaterals, sec. 122.
    Messrs. Abbott & Baker, for the appellee:
    Under the power executed, a valid sale could not be made without making a demand to redeem. Wilson v. Little, 2 N. Y. 443; Stearn v. Marsh, 4 Denio, 227; Mory v. Wood, 12 Wis. 419; Strong v. National Bank, 45 N. Y. 718; Bryan v. Baldwin, 32 id. 233.
    The attempted sale by Kretsinger to Freeman was not made in good faith, of which fact Freeman had notice, and therefore the sale was void.
    The pledgee of personal property is the trustee for the pledgor. Union Trust Co. v. Rigdon, 93 Ill. 458; Iron Co. v. Brick Co. 82 id. 548; Zimpleman v. Veeder, 98 id. 614.
    A transferee taking with notice of the violation of the trust, takes it subject to the trust. Fawsett v. Insurance Co. 5 Bradw. 274.

      While a power may authorize a sale either at public or private sale, the pledgee, nevertheless, is bound to use reasonable care and diligence to obtain the best price for the pledge. Like all trustees, he must act in good faith.
   Mr. Justice Scholfield

delivered the opinion of the Court:

On the 14th of December, 1885, William Baker, and Mary S. Baker, his wife, made and delivered their promissory note to W. H. Kretsinger, and thereby promised to pay him, ninety days after date, $600, with interest thereon at the rate of eight per cent per annum. Annexed to the note was a power reciting that there was deposited with Kretsinger, as security for the payment of the note, a certificate of stock of the “Journal of Commerce Company,” calling for one hundred shares, of $100 each; also, policy 63,990, for $5000, in the New England Mutual Life Insurance Company, on the life of William Baker, payable to his wife, Mary S. Baker, and concluding as follows:

“And in default of payment of said note, or any part thereof, at maturity, I do hereby authorize said Kretsinger, or his assigns, to sell and dispose of said security, or any part thereof, at public or private sale, in his or their discretion; and in the event of said security, or any part thereof, depreciating in market value, I do hereby authorize said Kretsinger, or his assigns, at his or their option, to sell and dispose of said security, or any part thereof, at any time before or after the maturity of said note, at either public or private sale; and in the event of sale before or after the maturity of said note, as aforesaid, no notice of such sale shall be required to be given to the undersigned, or to any other person or persons whomsoever, either by advertisement or otherwise; and the proceeds of such sale or sales, so made as aforesaid, shall, after the payment of all expenses and commissions attending said sale or sales, be applied on said note, and the balance, if any, after payment of said note, with interest, shall be returned to the undersigned, his heirs, executors, administrators or assigns; and at any sale of said collaterals, or any part thereof, made by virtue hereof, it shall be optional with the legal owner or holder of said promissory note to bid for and purchase said collaterals, or any part thereof.

“Witness my hand and seal, at Chicago, in the State of Elinois, this 14th day of December, A. D. 1885.

(Signed) William Baker, (seal)

(Signed) Mart S. Baker, (seal)”

Before the maturity of the note, and on the 23d of January, 1886, Kretsinger received the amount due upon his note from an agent of the Bank of Illinois, to whom William Baker was largely indebted, and, in consideration thereof, indorsed and transferred the note and the power and securities to him, and he subsequently formally transferred them to the bank. There was no demand upon the Bakers to redeem the pledge before these transfers. William Baker was dangerously sick at the time of this transfer, and he died of that sickness on the 15th of February, 1886. Tender was made to the bank of the amount due upon the note, for the payment of which the pledge was made, in due time, but the bank refused to accept it.

The question here is, whether the transfer by Kretsinger to the agent of the bank passed the legal title to the entire amount of the policy, or did it only transfer the policy as a security for the payment of the $600 note and accruing interest.

There was proof that the signature of the secretary of the company, to the stock of the “Journal of Commerce Company,” was not genuine. There is no evidence to prove the value of that stock, if genuine, and there is no evidence tending to prove that Mary S. Baker had any knowledge, at or before the transfer by Kretsinger, that it was not genuine. Appellant contends that the stock not being genuine, there was a “depreciating in market value” of the security pledged, within the meaning of those words as used in the power. The courts below held otherwise, and, consequently, that Kretsinger transferred the policy of insurance only so far as it was a security for the payment of his note transferred at the same time to the same party, and that after payment of the amount due upon that note, Mary S. Baker is entitled to the balance of the amount due upon the policy. We entirely concur in this ruling. Whether parties shall take any, and, if any, what kind of, security for the payment of a debt, is purely a matter to be determined by their contract. Ordinarily, when a pledge of property is made to secure the payment of indebtedness, the pledge can not be sold until after the debt is due and demand is made to redeem, and notice is given of the intention to sell. Story on Bailments, (5th ed.) sec. 310. But parties may, by contract, agree that in certain contingencies the pledge shall be sold before the debt is due, or that it shall be sold without previous notice, etc.; but in such case, what is the contract must be determined from the language employed, and not from a consideration of what would best subserve the interests of the creditor, for the law has no greater regard for his interest than it has for that of the debtor.

It is manifest that the words, “depreciating in market value,” can have reference only to a security that becomes less valuable in market after it is pledged than it was at the time it was pledged, and that it can have no proper application to a security the marketable condition of which has remained unchanged, but which was, at the time of the pledge, and has remained, worthless. It is true that the pledgee who innocently takes a worthless pledge is as much disappointed in his security and imperiled in his loan as is the pledgee who takes a security that subsequently depreciates in value; but this is precisely the condition of a man who takes a pledge under a mistake of its real value, supposing it to be adequate security when in truth it is not; and yet, in such case, the value of the security remaining the same at all times, no one could pretend that there is a “depreciating.in market value.” Because Kretsinger was not authorized to sell the policy upon discovery that this stock was not genuine, it does not follow that he was without remedy. He had what the law regarded as ample remedy, and it was to that, and not to any special remedy provided by the contract, that he was authorized to resort for relief. Moreover, the rule at common law was, that the pledgee must give notice to the pledgor to redeem, before he could sell. 2 Kent’s Com. (8th ed.) 759, *583; Rozet v. McClellan, 48 Ill. 345. It is obvious that the purpose of this was different from that of giving notice of sale. It was to inform the pledgor that the pledgee would then proceed to terminate all indulgence—that the pledgor must then act, or his property would be lost,—while notice of the sale was to invite competition, and thereby secure the best price attainable by a sale.

Where a sale is only to be made in event of failure to make payment at maturity of the debt, it may be that the pledgor is not entitled to a demand, for he has himself fixed a definite period for the termination of the pledge, and he should be required to act accordingly; but that reasoning is not applicable where the pledgee elects to sell the pledge before the debt is due, because of the happening of a contingency,—as, for instance, like that here,—of which the pledgor may be in profound ignorance. There, the pledgor may make no effort to redeem, simply because he may not suppose that there is the slightest reason to apprehend his property is in danger of being sold, and upon the plainest principles of justice he is entitled to be notified that he can not wait until the maturity of his debt, but that he must then redeem, if he ever intends to. Jones on Pledges, 607.

The judgment is affirmed.

Judgment affirmed.


author: Per Curiam :

text:
    Ethan Bragg v. Christine Olson et al.

      Filed at Ottawa

      May 16, 1889.

    1. Specific performance—title in litigation. Where, by the terms of a contract, the vendor is required to make the vendee a warranty deed at the termination of certain litigation concerning the title, the former can not object to a decree, on bill for specific performance, requiring him to convey whatever title he has, although his title has not yet been established in the litigation.
    2. Laches—to defeat a specific performance. Where the purchaser of land in 1863 was let into the immediate possession, and occupied and improved the premises up to his death, in 1867, and his widow and heirs continued in such possession for twenty years or more, it was held, on bill by the widow and heirs for a specific performance of the contract, that the defense of laches could have no application.
    3. Statute of Frauds—must he pleaded. The Statute of Frauds must be pleaded, to be available as a defense.
    á. Same—part performance—to take a case out of the statute. The delivery oí possession of land by the vendor, the payment of the purchase money and the making of valuable improvements on the premises by the purchaser and his heirs, will take a parol contract of sale out of the Statute of Frauds.
    5. Practice—time to object—want of proper parties—in chancery. After a decree for the specific performance of a contract for the sale of land between the parties thereto, it will be too late to raise the question that the representatives of a third party, deceased, are necessary parties, no such question having been raised by demurrer, plea or answer in the court below.
    Appeal from the Circuit Court of Warren county; the Hon. John J. Glenn, Judge, presiding.
    Mr. At,mon Kidder, Mr. William J. Ammen, and Mr. George F. Harding, for the appellant:
    A bill for specific performance can not he maintained upon conflicting testimony, nor unless the terms of the agreement are clearly proven. Colson v. Thompson, 2 Wheat. 336; Carr
      v. Duval, 14 Pet. 77; Clark v. Clark, 122 Ill. 388; McCornack v. Sage, 81 id. 484; Insurance Co. v. Rink, 110 id. 538; Wood v. Thornly, 58 id. 464; Huddleson v. Briscoe, 11 Ves. 583; Lunz v. McLaughlin, 14 Minn. 73; Waters v. Howard, 1 Md. Ch. 112.
    When the contract is vague or uncertain in its terms, or is not clearly proven, it will not be specifically enforced. Allen v. Webb, 64 Ill. 342; Bowman v. Cunningham, 78 id. 48; Long v. Long, 118 id. 638; Lakerson v. Stillwell, 13 N. Y. Eq. 357; Minturn v. Baylis, 33 Col. 129; Stanton v. Miller, 58 N. Y. 200; Wallace v. Rappleye, 103 Ill. 229; Bailey v. Edmunds, 64 id. 126; Hartwell v. Black, 48 id. 301; Sands v. Sands, 112 id. 226; Fleischman v. Moore, 79 id. 539; Hamilton v. Harvey, 121 id. 469; Brink v. Steadmaa, 70 id. 241; Clark v. Clark, 122 id. 388; Waterman on Specific Performance, p. 396, sec. 291.
    The record fails to show that Olson entered into possession of the land under the alleged verbal contract. This is enough to defeat the bill. Pickerell v. Morss, 97 Ill. 220; Wood v. Thornly, 58 id. 464; Worth v. Worth, 84 id. 442; Padfield v. Padfield, 92 id. 198; Kaufman v. Cook, 114 id. 11; Fry on Specific Performance, (3d ed.) sec. 557, et seq.; Waterman on Specific Performance, p. 375, sec. 274; 3 Washburn on Beal Prop. 247, 248; Clark v. Clark, 122 Ill. 388; 5 Wait’s Actions and Defenses, 800, 801; Wood on Statute of Frauds, chap. 18.
    Messrs. Bassett & Bassett, for the appellees:
    It is well settled in our State, that a verbal contract for the sale of land, where possession was taken under the contract and the contract price paid, will be enforced. The evidence to establish such a contract is only to be reasonably clear and certain. Deniston v. Hoagland, 67 Ill. 265; Adkinson v. Tanner, 68 id. 247; Rutherford v. Sargent, 71 id. 341; McDowell v. Lucas, 97 id. 489; Irwin v. Dyke, 114 id. 305.

      The contract will be upheld and enforced where the preponderance of the evidence, although conflicting, clearly establishes and proves the contract against the oath of the defendant; and what the courts hold to be clear and certain proof, is that which was satisfactory to the chancellor. Rutherford v. Sargent, 71 Ill. 341; Deniston v. Hoagland, 67 id. 265; McClure v. Otrich, 118 id. 227; Smith v. Yocum, 110 id. 145.
    It is proved, and not disputed, that Olson took possession of the land in 1863, and continued in possession until his death, in 1867, and his widow continued in possession until the. trial of the cause, in 1883. During all this time Bragg never asked for the rents, and never claimed that they were tenants under him. This was evidence of a contract of sale. Fry on Specific Performance, secs. 397, 400; Rutherford v. Sargent, 71 Ill. 345; Harris v. Knickerbocker, 5 Wend. 645.

      Laches, or the Statute of Limitations, does not apply when the complainants are in possession of the land. Wilson v. Byers, 77 Ill. 76; Mills v. Lockwood, 42 id. 118.
    The position taken, that specific performance will not he decreed because the vendor did not have a good title to the land, is not correct. It is only where the vendor has conveyed afterward to third parties who have no notice, that specific performance will not be enforced. It is no difference whether the vendor has a good title or not. He must convey what he has. Harding v. Parshall, 56 Ill. 219; Litsey v. Whittemore, 111 id. 267.
   Per Curiam :

This hill, as amended, was hy the widow and heirs-at-law of Olof Olson, deceased, against Ethan Bragg, to enforce the specific performance of a contract made in 1862 or 1863, to convey the east half of the north-west quarter of section 20, township 13 north, range 1 west, in Mercer county. It is, among other things, alleged, that it was verbally agreed between said Ethan Bragg and Olof Olson that Olson was to pay Bragg the sum of $600 for said tract of land, $200 of which was paid at or about the date of the agreement, and the remainder was to be paid on the delivery of a general warranty ' deed by Bragg, when the title then in litigation between said Bragg and one Erskine should be settled, which was expected to be at the next term of court thereafter to be held; that at that time the land was vacant and unimproved prairie land, and Olson then went into possession of it, under the contract, and fenced it, and broke it, and thereafter continued to use, occupy and claim it, under said contract, until his death, in 1867; that prior to the death of Olof Olson he paid Bragg the full amount agreed by the contract to be paid for the land; that since the death of Olof Olson, his widow and children have been in possession, and continued to the present time to occupy and claim the land under the contract, and have made additional improvements and the necessary repairs on the land; that the litigation between Bragg and Erskine in regard to the title has not yet terminated, and a history of the litigation is then recited; and it is further alleged that the widow of Olson has paid out, at the request of Bragg, a considerable sum on account of that litigation.

The allegations of this amended bill were stipulated to be in issue, and the cause then proceeded to a hearing; and thereupon the decree recites, that “the court finds that the allegations of the bill are substantially true; that the defendant, Ethan Bragg, contracted and sold to Olof Olson, in the year 1863, the east half of the north-west quarter of section twenty (20), township thirteen (13) north, range one (1) west, in Mercer county, Illinois, for the sum of $600, to be paid as soon as the defendant, Bragg, could get the title to said real estate decided, which was then in litigation; that Olof Olson paid the defendant the full amount of the contract price for said real estate, and died, leaving the complainants as his widow and as his only children and only heirs-at-law; that Olof Olson went into the possession of said real estate, under said contract, in the year 1863, and he and his widow and children continued in possession of the same from that time, and made valuable improvements on the same. The defendant, Ethan Bragg, is therefore ordered to make, execute and deliver to the complainants a deed, conveying said east half of the northwest quarter of section twenty (20), township thirteen (13) north, range one (1) west, in Mercer county, Illinois, to hold as widow and heirs-at-law of Olof Olson, conveying all the title said Bragg had to said real estate in the year 1863, or which he has acquired since that time. And on failure to make such deed in thirty days, then the master in chancery of Warren county is ordered and empowered to make a deed to said complainants, conveying all the title of said defendant, as aforesaid, in and to said premises.”

The objections to the decree present, in the main, but questions of fact, and no useful end can therefore be subserved by the statement here, at large, of our reasons for coinciding with the views thereon of the circuit court. It is sufficient that we have carefully considered the evidence, and that, after having done so, we do not feel authorized to hold that the circuit court is clearly in error.in its findings of facts. Harding was not a party to the contract, and it is now too late to raise the question that his representatives are necessary parties to this proceeding, no question in that respect having been raised, by demurrer, plea or answer, in the court below. Manufacturing Co. v. Wire Fence Co. 109 Ill. 71; Gibbs v. Blackwell, 37 id. 191; Willard v. Taylor, 8 Wall. 557.

It does not lie in the mouth of Bragg to object to conveying what title he has. Harding v. Parshall, 56 Ill. 219; Litsey v. Whittemore, 111 id. 267.

Olson having been let into possession, as the evidence shows, under the contract, and having remained in possession until his death, and his widow and heirs having been in possession, in his right, ever since, the defense of laches can have no application. Chicago and Eastern Illinois Railroad Co. v. Hay et al. 119 Ill. 502; Whitsitt v. Trustees of Presbyterian Church, 110 id. 125; Wilson v. Byers, 77 id. 76; Mills v. Lockwood, 42 id. 118.

The Statute of Frauds was not pleaded as a defense, but even if it had been, concurring, as we do, with the circuit court in its findings of facts, there was sufficient part performance shown to take the case out of the statute.

The decree is affirmed.

Decree affirmed. ,


author: Mr. Justice Magbudeb

text:
    The Chicago West Division Railway Company v. William A. Becker, Admr.

      Filed at Ottawa

      May 16, 1889.

      1. Evidence—declarations of person injured—in suit to recover for the injury—whether of the res gestae. In an action against a city railway company to recover damages for personal injury to plaintiff’s intestate, a boy, causing his death, it was claimed that the boy was thrown from a car and run over. After the boy had got up and walked to the sidewalk and had sat down, he stated, in answer to a question as to what was the matter, that the conductor threw him off the car. These statements were admitted in evidence: Held, that the court erred in admitting evidence of such statements, as they were not a part of the res gestae.

    2. The declarations of a party before his death, not made at the time of the accident in which he received the injury causing his death, nor concurrently therewith, and which fail to explain or characterize the manner in which the accident occurred, are not admissible in evidence.
    3. The true inquiry is, whether the declaration is a verbal act, illustrating, explaining or interpreting other parts of the transaction o'f which it is itself a part, or is merely a history, or a part of a history, of a completed past affair. In the one case it is competent, in the other it is not.
    Appeal from the Appellate Court for the First District;—• heard in that court on appeal from the Superior Court of Cook county; the Hon. John P. Altgeld, Judge, presiding.

      Mr. W. B. Keep, Mr. Edmund Euethmann, and Mr. H. H. Mabtin, for the appellant:
    The test for the admission of declarations as a part of the res gestee is, that they must he so intimately interwoven or connected with the principal fact or event which it characterizes, as to be regarded as a part of the transaction itself. Lund v. Tyngsborough, 9 Cush. 36; Lander v. People, 104 Ill. 248; Waldele v. Railroad Co. 95 N. Y. 275; Worden v. Powers, 37 Vt. 619; Sullivan v. Railroad Co. 12 Ore. 393; Kendrick v. State, 55 Miss. 436; Cramer v. State, 61 id. 438.
    The rule as to the admissibility of declarations in such cases is shown in Williamson v. Railroad Co. 114 Mass. 148; Martin v. Railroad Co. 103 N. Y. 626; State v. Pomeroy, 25 Kan. 349; Railroad Co. v. Mara, 26 Ohio St. 185; Bins v. State, 57 Ind. 46; Commonwealth v. James, 99 Mass. 438; Adams v. Railroad Co. 74 Mo. 553; State v. Brown, 64 id. 367; Forrest v. State, 21 Ohio St. 641; People v. Ah Lee, 60 Cal. 85; Roosa v. Loan Co. 132 Mass. 439; Cerder v. Talbott, 14 W. Va. 277; Annil v. Railroad Co. 70 Iowa, 130; Railroad Co. v. O’Brien, 119 U. S. 99; Railroad Co. v. Hawk, 72 Ala. 112.
    Messrs. Campbedl & Custeb, for the appellee:
    The declarations of the intestate made immediately after the injury were properly admitted in evidence. 1 Greenleaf on Evidence, (14th ed.) sec. 108; Railway Co. v. Howard, 6 Bradw. 569; Commonwealth v. Hackett, 2 Allen, 136; Elkins v. McKean, 79 Pa. St. 493; Insurance Co. v. Moseley, 8 Wall. 397; Entwhistle v. Feigner, 60 Mo. 214; Harriman v. Stowe, 57 id. 93; Brownell v. Railway Co. 47 id. 239.
   Mr. Justice Magbudeb

delivered the opinion of the Court:

This is an action on the case, brought in the Superior Court of Cook County by the appellee, as administrator, to recover damages for the death of his son Henry J. Becker, a boy between eight and nine years of age, against the appellant company, which operates a street railway on Blue Island Avenue in the West division of the city of Chicago. Verdict and judgment in the trial court were in favor of the plaintiff. The case is brought here by appeal from the Appellate Court, which .affirmed the judgment of the Superior Court.

The boy died on November 29, 1885. The injuries, which caused his death, were received about eight o’clock in the evening of November 28, 1885, on Blue Island Avenue near its intersection with Henry street, and were caused by one of appellant’s street cars going southward on Blue Island Avenue. It is charged in the declaration that the conductor of the car pushed the deceased from the front platform, and that the car ran over him.

No witness was produced on either side, who saw the accident, or could testify to the manner in which it occurred. The only testimony in support of the theory that the boy was pushed or thrown- from the car, is that of two witnesses, who swear to the declarations made by the boy himself after he was hurt. Two lads named Custy and Burke, the oldest of whom was seventeen years old, were passing along Henry street across Blue Island Avenue when they saw the boy, and noticed that he was injured. Custy says : “I saw the boy on the street; he was on his feet and walked towards the sidewalk ; I went to him and asked him what was the matter; he said the conductor took him by the arm and shook him off the car.” Burke says: “We were going up on Blue Island Avenue and we saw a little fellow getting up; we ran over to him and asked him what was the matter, and he says the conductor caught him by the arm and threw him off the car.” The car had passed on “about a lot south of Henry street,” and was going “at a good speed.”

Blue Island Avenue is eighty feet wide. The boy rose from the ground in the middle of the street, and walked to the sidewalk on the east side of the street, and sat down. The evidence of Custy tends to show, that the deceased made the statement about his being thrown from the car, while he was on his way to the side-walk. The evidence of Burke, however, is quite positive to the effect, that the statement was made after the sidewalk was reached. The testimony of Magdalene Elbe tends to confirm what Burke says upon this subject.

The proof as to the declarations of the deceased was admitted by the trial court over the objection of the defendant below. The ruling was excepted to. When the plaintiff rested, the defendant moved to exclude the testimony from the jury, and filed its motion in writing. The motion was overruled, and exception was taken.

We think, that the admission of proof as to what was said by the deceased, under the circumstances thus detailed, was erroneous. The declarations were not a part of the res gestee. They were not made at the time of the accident, nor did they explain or characterize the manner in which the accident occurred. They were not concurrent with the injury, nor uttered contemporaneously with it so as to be regarded as a part of the principal transaction. They were made after the injury was received and were merely narrative of what had taken place. They were spoken by the deceased as his answer, when he was asked “what was the matter.” The true inquiry, according to all the authorities, is whether the declaration is a verbal act, illustrating, explaining or interpreting other parts of the transaction of which it is itself a part, or is merely a history or a part of a history of a completed past affair. In the one case it is competent, in the other it is not. (Mayes v. The State, 64 Miss. 329; Waldele v. N. Y. C. & H. R. R. R. Co. 95 N. Y. 274; Lander v. The People, 104 Ill. 248.)

For the error in admitting testimony as to the declarations made by plaintiff’s intestate, the judgments of the Appellate and Superior Court are reversed, and the cause is remanded to the Superior Court.

Judgment reversed.


text:
    James K. Fisher et al. v. Egbert L. Jansen.

      Filed at Ottawa

      May 16, 1889.

    1. Measure oe damages—in action for personal injury—resulting from negligence. In an action to recover for a personal injury caused by negligence, it is not competent for the plaintiff to prove what he had made in business prior to his injuries. What any business man, however competent and skilled, might make in the future in any kind of trade, is too much a matter of speculation and contingency to be susceptible of direct evidence.
    2. A party personally injured from negligence, may recover of the defendant damages for his inability to labor or transact business in the future, resulting from his injuries, without any evidence of his success in business prior to his injury, or the extent of his earnings. Direct proof of any specific pecuniary loss is not indispensable to a recovery.
    3. In an action by a plaintiff aged about fifty-three years, and temporarily not engaged in business, to recover for personal injuries inflicted through negligence, the court instructed for the plaintiff, in substance, that if the jury found, from the evidence, that the plaintiff was entitled to recover any damages, the jury had aright to and should take into consideration all the facts and circumstances in evidence before them, and that they might consider the nature and extent of the plaintiff’s injuries, if any, testified about by the witnesses; his pain and suffering, if any, resulting from such injuries; the permanent disability, if any, caused by said injuries; the money necessarily paid, if any, by the plaintiff in and about endeavoring to be healed or cured of said injuries ; and any future pain or suffering, or future inability to labor or transact business, if any, that the jury may believe, from the evidence, the plaintiff would sustain by reason of injuries received. There was no direct proof of the earning ability of the plaintiff: Held, that there was no error in the instruction.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. John P. Altgeld, Judge, presiding.
    Messrs. Flower, Bemy & Holstein, for the appellants:
    The second of plaintiff’s instructions was erroneous. Instructions only that are based on the evidence should be given. If not so based it is error, though they may contain certain abstract propositions. Railroad Co. v. Lewis, 109 Ill. 120; Coughlin v. People, 18 id. 266; Bank v. Eldred, 9 Wall. 544; Ewing v. Runkle, 20 Ill. 448; Fidler v. McKinley, 21 id. 308; Wenger v. Calder, 78 id. 275; Waldron v. Marcier, 82 id. 551; Sewing Machine Co. v. Layman, 88 id. 39; Frantz v. Rose, 89 id. 591; Martin v. Johnson, id. 537; 2 Thompson on Trials, sec. 2315, p. 1671.
    There is manifest error in the second instruction given by the court at the request of the appellee,—that is to say, in that part of it that instructs the jury, that in assessing damages “they may consider * * * future inability to labor or transact business,” because there was no evidence of any loss on account of future inability to labor or transact business, or of the value of appellee’s time. Jaques v. Railroad Co. 41 Conn. 61; Railroad Co. v. Hazzard, 26 id. 373; Joliet v. Conway, 119 id. 489; Skinner v. Church, 36 Iowa, 91; Tilley v. Railroad Co. 24 N. Y. 471; 29 id. 252; McIntire v. Railroad Co. 37 id. 258; Leeds v. Gas Light Co. 90 id. 26; Walker v. Railroad Co. 61 Barb. 260; Grant v. Brooklyn, 41 id. 381; Ehrgott v. Mayor, 96 N. Y. 275.
    Mr. E. A. Otis, for the appellee:
    No case can be cited which goes to the extent of permitting evidence of past profits in business, to show the probable value of personal services. Masterton v. Mt. Vernon, 58 N. Y. 395; Lincoln v. Railroad Co. 23 Wend. 425; Walker v. Railroad Co. 63 Barb. 260; Nebraska City v. Campbell, 12 Black. 590; Ballou v. Farnam, 11 Allen, 73.
    That plaintiff was entitled to recover damages for his future disability to transact his business, see Scott v. Montgomery, 95 Pa. St. 444; Ballou v. Farnam, 11 Allen, 73; Railroad Co. v. Warner, 108 Ill. 538; Chicago v. Major, 18 id. 349; Bridge Association v. Loomis, 20 id. 236; Railroad Co. v. Otto, 52 id. 416; City v. Martin, 49 id. 246; Joliet v. Conway, 119 id. 489; 3 Sutherland on Damages, 261.
    The rule of the Illinois courts is most fully sustained by the weight of authority everywhere. Shearman & Bedfield on Negligence, (4th ed.) see. 758, and notes; Scott v. Montgomery, 95 Pa. St. 444; Canal v. Graham, 63 id. 290; 2 Thompson •on Negligence, pp. 1256, 1257, and cases cited.
   Mr. Justice Scholfield

delivered the opinion of the Court:

Appellee received severe and permanent injuries through the negligence of the servant of the appellants in charge of an elevator used by them for the convenience of the Beaurivage flats, of which they were in possession.

The question of appellants’ liability is settled by the judgments below, and the only question presented for our determination, upon this appeal, is, whether the second instruction given at the instance of appellee is correct. That instruction is as follows:

“In determining the amount of damages which the plaintiff is entitled to recover in this case, (if the jury find, from the evidence, under the instructions of the court, he is entitled to recover any damages,) the jury have a right to, and should, take into consideration all the facts and circumstances in evidence before them; and they may consider the nature and extent of the plaintiff’s injuries, if any, testified about by the witnesses in this case; his pain and suffering, if any, resulting from such injuries; the permanent disability, if any, caused by said injuries; the money necessarily paid, if any, by the plaintiff, in and about endeavoring to be healed or cured of said injuries ; and any future pain or suffering, or future inability to labor or transact business, if any, that the jury may believe, from the evidence, the plaintiff will sustain by reason of injuries received.”

The contention of counsel who argue on behalf of appellants is, that there is no evidence in the record of the “earning ability” of appellee, and that it was therefore error to say to the jury that they could take into consideration his permanent disability, and consequent future inability to labor or transact business.

The evidence tends to prove that at the time appellee was injured he was a little over fifty-three years old; that he had gone into the book business, in Chicago, when a boy, and continued therein until in January, 1886,—clerking from 1848 until 1856, a partner in the firm of S. C.' Griggs & Go. from 1856 until 1872, and a partner in the firm of Jansen, MeClurg & Co. from 1872 until January, 1886. At the last named date he had broken down in health from overwork, but he immediately thereafter spent several months in travel and recreation in Kansas and California, and at the time of receiving the injury was comparatively restored to his former health. The evidence shows the character of the injuries, and that appellee had paid about $1000 for nursing, physicians’ bills, etc., in consequence of those injuries. >

It is manifest that it would have been incompetent to have proved what he had made in business prior to his injuries, since that was the result of circumstances that might, never be repeated. He had no employment at fixed wages for the future, and he is not shown to have possessed peculiar skill or knowledge, having a definite pecuniary value, which was destroyed or affected by his injuries. What he or any other business man, however competent and skilled, might make in the future, in any line of trade, is too much a matter of speculation and contingency to be susceptible of direct evidence. It follows, therefore, that appellee gave all the evidence of the damages he has sustained on account of his permanent disaability and consequent future inability to labor or transact business of which that question is susceptible. The inquiry, then, must be, whether, under such circumstances, a person is entitled to recover any damages because of inability to labor or transact business in the future, resulting from his injuries.

We think, very clearly, that he is entitled to recover,—that it can upon no principle make any difference whether a person is, at the time he is injured, engaged in a business paying a definite amount, or is then not engaged in business, but is by the act of injury, prevented from engaging in business in the future, in which he might reasonably expect, but not be entirely certain, that he would have success.

In City of Chicago v. Major, 18 Ill. 349, action was brought against the city for negligence, resulting in the death of a child four years old. There was no proof that he had ever earned anything, and, necessarily, it was purely conjectural whether he ever would have earned anything, had he lived and been uninjured by the city’s negligence. The court, among other things, instructed the jury, that in determining the extent of pecuniary loss it ,was not necessary that any witness should have expressed an opinion as to the amount, but that the jury might themselves make such an estimate from the facts proved, taking into consideration the age of the deceased, and such other evidence as might afford them the means of making the estimate. This was held to be proper, the court observing: “In this, as in all other cases, it was proper for the jury to exercise their own judgment upon the facts in proof, by connecting them with their own knowledge and experience, which they are supposed to possess in common with the generality of mankind.” See, also, to like effect, Chicago v. Scholten, 75 Ill. 471.

Illinois Central Railroad Co. v. Read, 37 Ill. 484, was an action for injuries received by the plaintiff by reason of the negligence of the defendant. The particular injury was to the right hand of the plaintiff, by scalding. • There does not appear to have been any evidence as to wages the plaintiff had earned or could thereafter earn. One of the instructions given in behalf of the plaintiff, and excepted to by the defendant, was this: “In estimating the plaintiff’s damages, it is proper for the jury to estimate the effect of the injury in future upon the plaintiff’s health, if any, the use of his hand, and his ability to attend to his affairs, generally, in pursuing his course of life, and the bo'dily pain and suffering, the necessary expenses of medical care and loss of time, and all damages, present and prospective, which can be treated as a necessary result to the injury inflicted by the collision upon the plaintiff in this action.” The main argument was upon a different question, and upon that the ease was reversed; but this instruction was objected to, and the court held it was free of error, saying: “As to the instructions for appellee, we perceive no inconsistency or error in them.”

It was said, arguendo, in Peoria Bridge Association v. Loomis, 20 Ill. 252: “The rule of damages for personal injury inflicted by negligence is, loss of time during the cure, and expense incurred in respect of it, the .pain and suffering undergone by plaintiff, and any permanent injury, especially when it causes a disability from future exertion, and consequent pecuniary loss.” And this was, in the same way, repeated in City of Chicago v. Martin et ux. 49 Ill. 246; and the identical language was embodied in an instruction, which was approved, in Chicago, Rock Island and Pacific Railroad Co. v. Otto, 52 Ill. 416. It is true that nothing is said in Peoria Bridge Association v. Loomis, nor in City of Chicago v. Martin, in respect to the specific proof required; and in Chicago, Rock Island and Pacific Railroad Co. v. Otto, it does not appear, from the report of the case, what was the evidence before the jury. But in Chicago, Burlington and Quincy Railroad Co. v. Warner, 108 Ill. 538, which was an action for injuries sustained through the negligence of the defendant, the same instruction, in substance, was given, and it was objected by counsel for appellant that “there was no evidence that the loss of Warner’s arm did or would impair his ability to pursue his business, much less of the extent to which said ability would be lessened,” and we held, conceding the facts, that the objection was untenable, saying, among other things: “At the time of receiving the injury his business was that of railroading. He had made his way up from a brakeman to a conductor of a freight train. By reason of the accident he lost his position as an employe of the company, and it is manifest, from the loss of the arm itself, that he could pot successfully, if at all, follow that business any longer; and the fact he was forced to abandon it was before the jury. That both arms are useful in all, and indispensable in most, of the avocations in life, is but a part of the common information of mankind in general, and hence it required no other proof to establish it. With these facts before the jury, it is difficult to understand by what process of reasoning the conclusion is reached, there was no evidence upon which to found the instruction, so far as it related to the impairment of appellee’s ability to pursue his ordinary business by reason of the loss of his arm.” There was not there, as there is not here, any evidence of what the plaintiff was earning, or what he could have earned but for the loss of his arm; nor was there any evidence of what he could or could not do after he was injured; and there is here the same evidence that the plaintiff was prevented from resuming his old or any new business, that there was there that the plaintiff was compelled to abandon the business he was in. Here, even more than there, it is clear, from the evidence, that the plaintiff could not successfully resume or prosecute any business requiring any degree of physical exertion. That case is conclusive that direct proof of any specific pecuniary loss is not indispensable to a recovery, and, as has been seen, it but follows City of Chicago v. Major, Illinois Central Railroad Co. v. Reed, supra, and the other decisions based on like principle.

We think the Appellate Court properly affirmed the judgment of the Superior Court, and its judgment is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Mageudeb

text:
    Albert L. Sercomb v. Charles Catlin, Receiver.

      Filed at Ottawa

      May 16, 1889.

      1. Receiver—property in another jurisdiction—powers of a receiver. The general rule is, that the powers of a receiver are co-extensive with the jm’isdiction of the court which appoints him. He has no extraterritorial power of official action. But a receiver appointed in one State may, by comity, be permitted to recover the possession of property in another State, provided no citizen or suitor of the latter State is thereby prejudiced or injured.
    2. Same—interfering with property—-after appointment of receiver— even before possession tahen—power of the court. After the appointment of a receiver of all the effects and property of A & B, an insolvent firm, C, the business manager of a foreign corporation having a branch office in this State, caused an attachment to be issued in Washington City, D. 0., in favor of his corporation, against A & B, for a debt, and had the same levied on a stock of jewelry which A & B had, shortly before the appointment of the receiver, consigned to an auctioneer in Washington. 0 refused to dismiss the attachment suit, as directed by the court, whereupon the court adjudged 0 to be guilty of a contempt of court, and ordered his arrest and imprisonment: Held, that the court had the power to make the order of imprisonment.
    3. Although the receiver of an insolvent firm or corporation may not have reduced to his possession the property and assets of the insolvents, this will not authorize any creditor to take legal steps against the property vested in the receiver, who is the officer of the court. Even if the property is in another State, this will not authorize a resident of this State to attach the same, as this will interfere with the receiver’s taking possession.

      4. Conflict of laws—extra-territorial effect of decree—as to property in another jurisdiction. Where a court of equity has jurisdiction over the person of a defendant, it may make its decrees and orders affecting his property which is situated outside of its jm’isdiction, and enforce obedience to them by imprisonment.
    5. Contempt—proceedings against corporations. A corporation can i only be punished for contempt, through its officers, or those acting in aid of it. The court may proceed against the corporation or against its officers who do the act interfering with the proceedings of the court, or who had the control of the action of the corporation.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Egbebt Jamieson, Judge, presiding.
    Messrs. Floweb, Bemy & Holstein, for the appellant:
    Catlin was not an assignee, under a voluntary assignment, a national bankrupt act, or under the State insolvent laws. He is merely a receiver under a judgment creditor’s bill.
    Of all conveyances by mere operation of law, in cases of bankruptcy, insolvency or receiverships in invitwm, the weakest title is that of a receiver under a creditor’s bill. A receiver under a creditor’s bill is appointed for the benefit of one or more creditors, to the prejudice and exclusion of all other creditors of the debtor, while an assignee in bankruptcy or insolvency is appointed for the benefit of all creditors equally. We need not multiply authorities upon this proposition. The distinction we have suggested is universally recognized by the authorities. The Supreme Court of this State, in a very recent case, recognizes it. See May v. National Bank, 122 Ill. 551; Burrill on Assignments, (5th ed.) sec. 303; Story on Conflict of Laws, (8th ed.) sec. 411, p. 573.
    What are the rights and powers of Catlin, as receiver? First, a receiver appointed under a creditor’s bill is merely an officer of the court appointing him, and his rights and powers as such are determined, measured and limited By the jurisdiction of that court.
    Neither the laws of a State nor the orders of its courts have any force or effect, proprio vigore, beyond its territorial limits. The appointment of Catlin as Receiver by the Superior Court, under a creditor’s bill, against Clapp & Davies, residents of Illinois, did not vest in said receiver the property of Clapp & Davies situate in other States or Territories beyond the jurisdiction of the court. Booth v. Clark, 17 How. 322; Rhawn v. Pearce, 110 Ill. 350; May v. National Bank, 122 id. 551.

      In the case of Olney v. Tanner, United States District Judge Brown of New York says: “Upon the authority of the case of Booth v. Clarke, 17 How. 322, I think there is much doubt whether the complainant, as a receiver, an officer of a State court, has any such standing in a court of the United States sitting in bankruptcy, as entitles him to its aid in a case like this, seeking a preference in contravention of the intent and policy of the Bankrupt act. Outside of the jurisdiction which appoints him, a receiver is not ordinarily entitled to maintain suits except by comity, and this comity does not extend to aiding preferences -sought to be acquired by statutory assignments of other proceeding in invitum, to the detriment of other creditors whose interests are in the keeping of foreign or independent tribunals.” Booth v. Clarke, 17 How. 322; Brigham v. Luddington, 12 Blatchf. 237; Chandler v. Siddle, 10 N. B. 236; Willets v. Waite, 25 N. Y. 576; Hout v. Thompson, 5 id. 320; Runk v. St.John, 29 Barb. 585; High on Receivers, sec. 156; Betton v. Valentine, 1 Curt. 168; Hazard v. Durant, 19 Fed. Rep. 471; Keller v. Paine, 107 N. Y. 83; Green v. Van Buskirk, 3 Wall. 458; 5 id. 307; 7 id. 189; Guillander v. Howell, 35 N. Y. 657; Warren v. Jaffray, 96 id. 248; Beach on Receivers, secs. 254, 255, 680, and notes; Insurance Co. v. Taylor, 2 Robt. 278; 16 Fed. Rep. 725.
    Messrs. Kraus, Mayer & Stein, for the appellee:
    If the Meriden Britannia Company was proceeded against, the order of the court could have been enforced only through its agent, Sercomb. Franshaw v. Tracy, 4 Biss. 490; People v. Railroad Co. 14 Abb. Pr. 171.
    Rorer on Inter-State Law (p. 42) says: “The authority of courts of one State to restrain, by injunction, persons within its jurisdiction from prosecuting suits, either in the courts of such State or in courts of other States, against persons or property there situate, of persons resident in the State where the injunction is asked, is fully asserted, not by way of interference with the course of proceedings or jurisdiction of courts of other States, (for to this end a court has no power,) but upon the principle that courts of equity have full power over persons within their jurisdiction and amenable to their process, to restrain them from proceeding, either within or without the State, to do acts which are wrongful toward other residents, and therefore contrary to equity and good conscience.”
    This doctrine is now uniformly asserted by the courts of this country and England. High on Injunctions, (2d ed.) secs. 103-106; 2 Story’s Eq. Jur. secs. 896-900; Massie v. Watts, 6 Cranch, 148; Alexander v. Tolleston Club, 110 Ill. 65; Dehon v. Foster, 4 Allen, 545; 7 id. 57; Keyser v. Rice, 47 Md. 203; Chaffee v. Quidnick Co. 13 R. I. 442; Railroad Co. v. Railroad Co. 46 Vt. 792; Engel v. Scheuerman, 40 Ga. 206; Hendee v. Railroad Co. 26 Fed. Rep. 677; MacGregor v. MacGregor, 9 Iowa, 65; Manufacturing Co. v. Worster, 23 N. H. 462; Briggs v. French, 1 Sumner, 504; Deklyn v. Watkins, 3 Sandf. Ch. *185; Claflin v. Hamlin, 62 How. Pr. 284; Vail v. Knapp, 49 Barb. 299; Snook v. Snetzer, 25 Ohio St. 516; Dinsmore v. Neresheimer, 32 Hun, 204; Richards v. People, 81 Ill. 551; Patterson v. Lynde, 112 id. 196; Railroad Co. v. Packet Co. 108 id. 317; Heyer v. Alexander, id. 385; Cole v. Young, 24 Kan. 435.
   Mr. Justice Mageudeb

delivered the opinion of the Court s

This is an appeal from a judgment of the Appellate Court of the First District affirming an order of the Superior Court of Cook County for the arrest and imprisonment of the appellant on account of his alleged contempt of court. On April 14, 1887, in the case of Ada S. Havens et al. v. Caleb Clapp et al. then pending in said Superior Court, the appellee was appointed receiver of all the property and effects, real and personal, of the defendants therein, Caleb Clapp and Thomas Davies. Prior to' that date Clapp & Davies had f&warded, on consignment, to Elijah E. Newton, an auctioneer.and commission merchant in Washington City in the District of Columbia, a lot of jewelry, watches and silverware to he by him disposed of for their benefit. So far as appears to the contrary, the goods so consigned were still in the possession of Newton at Washington when the order was entered on April 7, 1888, for the commitment of appellant for contempt.

Within a week or ten days after his appointment as receiver, appellee gave notice of such appointment to Newton and demanded a return of the goods. On May" 18, 1887, The Meriden Britannia Company, a corporation organized under the laws of the State of Connecticut, being a creditor of Clapp & Davies, commenced an attachment suit against them for the amount of its claim in the Supreme Court of the District of Columbia, and attached the goods in the hands of Newton.

When appellee was appointed receiver, and for a long time prior thereto, The Meriden Britannia Company did business in the city of Chicago, and had a branch office there. The business manager of the company in Chicago was then, and is now, the appellant, Sercomb. The appellant began the attachment suit in Washington on behalf of the company, making the affidavit necessary to procure the attachment, and caused the property in the possession of Newton to be attached. The affidavit so made by him was sworn to before a Notary Public in Chicago. Appellant had full knowledge of appellee’s appointment as receiver before the attachment suit was commenced.

On May 31, 1887, appellee as receiver filed his petition in the case of Havens et al. v. Clapp et al., setting up substantially the foregoing facts, and claiming to be the owner of the goods in Washington, and praying for an order upon.Sercomb, as manager of said company, to show cause why he should not be attached for contempt in prosecuting the attachment suit and thereby interfering with property belonging to an officer of the court. Appellant appeared and filed a general demurrer to the petition. The demurrer being overruled, he elected to stand by it. Thereupon, on June 15,1887, an order 1 was entered requiring him to furnish proof to the court on June 24, 1887, of having dismissed the attachment suit, and, in default of so doing, that he show cause by ten o’clock on June 25, 1887, why he should not be attached for contempt. The case was then taken to the Appellate Court by writ of error, and the writ was there dismissed because the order of June 15, 1887, was not a final order. After due notice a copy of such judgment of dismissal was filed in the Superior Court, and the proceeding was there reinstated.

Appellee again filed his petition in the Superior Court on April 5, 1888, ¿fitting up the previous proceedings as above detailed, charging the failure of Sereomb to obey the order of June 15, 1887, and praying that he show cause by April 7, 1888, why he should not be punished for contempt, etc. To this petition also appellant demurred, and stood by his demurrer upon its being overruled. Thereupon the final order of April 7, 1888, heretofore referred to, was entered.

Under the facts thus stated, did the commencement and prosecution of the attachment suit by Sereomb, as manager of the Meriden Britannia Company, and his refusal to dismiss it as he was required to do by the order of the Superior Court, amount to a contempt of court?

If Sereomb himself had owned the claim sued upon in the attachment suit, and had begun that suit in Illinois, he would have been guilty of contempt upon the authority of the case of Richards v. The People, 81 Ill. 551. There, in a suit against a railway company, the circuit court of DeWitt county appointed one-Wright receiver of the real and personal property and choses in action of the company. Bichards, knowing of such appointment, recovered judgments against "the company before a justice of the peace in Champaign county, and garnisheed certain persons, who held funds belonging to the company. He continued the prosecution of the suits after being informed of an injunction, issued against such prosecution and directed to his attorney but not to himself. He claimed that he was not guilty of contempt because the funds in question had not been taken possession of by the receiver; but this claim was not sustained, and his conduct in the prosecution of the garnishee proceedings was held to be a contempt of court. Although the funds had not been reduced to possession by the receiver, the title thereto had vested in him by virtue of his appointment, and such funds could not be seized or attached by creditors of the original debtor with impunity. It was there said: “It is to be remembered that the receiver is the officer of the court and that his possession is the-possession of the court itself, and any unauthorized interference therewith, either by taking forcible possession of the property committed to his charge, or by legal proceedings for that purpose without the sanction of the court appointing him, is a direct and immediate contempt of court, and punishable by attachment. * * * It can make no difference in the application of the rule, whether the property is. actually or only constructively in the receiver’s possession.”

The ease at bar differs, however, from the Richards ease in that, here, the property attached was not in Illinois, but in the District of Columbia. It is insisted by counsel for appellant that the appellee receiver would not be permitted to go-into, the foreign jurisdiction to get possession of the property in Newton’s hands. Undoubtedly the general rule is, that the powers of a receiver are co-extensive only with the jurisdiction' of the court which appoints him. (C., M. & St. P. Ry. Co. v. Packet Co. 108 Ill. 317.) He has no extra-territorial power of official action. But a receiver appointed in one State may, by comity, be permitted to recover the possession of property in another State, provided no citizen or suitor of the latter State is thereby prejudiced or injured. (High on Recvs. sec; 47; Hunt v. Columbian Insurance Co. 55 Me. 290; Hoyt v. Thompson, 5 N. Y. 320; Hoyt v. Thompson, 19 N. Y. 207.) If appellant had not caused the attachment suit to be brought against the goods in Newton’s hands, it does not appear that appellee would not have been allowed to enforce his rights against those goods in the' District of Columbia. It is not shown that such action on his part would have injured any citizen or suitor in the District. Newton himself may have eventually surrendered the property to appellee without suit.

It is also said, that, if the appellee should intervene in the attachment suit in the District of Columbia, and set up his claim to the property by virtue of his appointment as receiver, he could not prevail in that suit as against the Meriden Britannia Company, the attaching creditor, upon the general ground that any statutory or judicial proceeding in one State, by which trustees, assignees or receivers are appointed to take possession of the property of insolvent debtors in invitos, will not be enforced in another State, and that the property taken under such proceeding is subject to the equities of foreign creditors. (Rhawn v. Pearce, 110 Ill. 350.) This doctrine has no bearing upon the question involved in the present controversy. The question is not whether appellee by intervening in the foreign suit could be successful therein against the attaching creditor. The question is whether appellant has been I guilty of interfering with an officer of the court by causing the) attachment suit to be commenced. It is true that the property attached is beyond the jurisdiction of the courts of this State, but the appellant, who caused it to be attached, is in this State and within the jurisdiction of its courts. If the Superior Court had no power to reach the goods in Newton’s hands, it had the power to reach appellant, who sought to prevent its receiver from getting possession of the goods. It makes no difference that the property was in a foreign jurisdiction.

In the Richards case, Richards brought suit in Illinois to get hold of a fund in Illinois belonging to Wright receiver, and his act was contempt of court because it interfered with the receiver, and prevented him from reaching such fund. Appellant brings suit in the District of Columbia to get hold of property there belonging to the appellee receiver. His act is just as much an interference with the receiver as though the property was in Illinois. If the attaching creditor can succeed in the foreign suit as against appellee, then the effect of the suit is to take the property from the appellee. If appellee, by intervening in such suit, should defeat the attaching creditor, he will have been forced by the appellant to make a contest for what he may have obtained without a contest. In either case the officer of the court is interfered with in the discharge of his trust.

“Where a court of equity has jurisdiction over the person of a defendant, it is familiar learning that it may make decrees and orders affecting his property which is situated outside of its jurisdiction.” (Beach on Receivers, sec. 243.) In Langford v. Langford, 5 L. J. (N. S.) Ch. 60, which was an equity proceeding in England, where a receiver had been appointed over an estate in Ireland, and where the tenants on the estate had been notified to pay the rents- to the receiver, Lord Langford, the defendant in the cause, attempted to collect the rents himself on the ground that the order appointing the receiver was of no force and effect in Ireland; and his course in this regard was held to be contempt of court. It was there said, that the English court had not the means of sending its officers to carry into effect its orders in Ireland, but it had jurisdiction over all persons in England, and could compel obedience to its orders.

In Chaffee v. Quidnick Company, 13 R. I. 442, a court of equity in Rhode Island, in a proceeding there pending, appointed one Farnsworth receiver of the property of the Quid-nick company, and directed him to collect certain monies belonging to the company in the hands of Harding, Colby & Co. in New York. Certain attorneys, who had acted as counsel for the defendants in this proceeding, and had assisted in framing the order appointing the receiver, had a claim against the Quidniek Company for fees. One of them was a resident of Massachusetts and one of New York. In order to collect their fees they began suit against the Company in a court in New York, and attached the funds in the hands of Harding, Colby & Co. The Rhode Island court, upon being informed of the facts through a petition filed by the receiver, held that the attorneys had obstructed and interfered with the receiver by bringing the suit in New York, and were guilty of contempt, notwithstanding the fact that the attached funds were outside the jurisdiction of the Rhode Island court. (See also Dehon v. Foster, 4 Allen, 545; Vermont R. R. v. Vermont R. R. 46 Vt. 792.)

In the case at bar, the appellant was not a party to the original suit, in which appellee was appointed receiver, and did not occupy any such relation to that suit, as was sustained by Lord Langford in the English case, and by the attorneys in the Rhode Island case, to the suits in which they were respectively adjudged to be guilty of contempt. But the position of appellant here is exactly the same as was that of Richards in the case of Richards v. The People, supra. Richards was not a party to the original procéeding in which Wright was appointed receiver. It only appears that he was within the jurisdiction of the Illinois court. The injunction was not issued until the Receiver had reported to the court that the garnishee proceedings had been instituted.

It is said that the appellant should not be held to be guilty of contempt for refusing to dismiss a suit, in which he himself was not the plaintiff, but in which the Meriden Britannia Company was plaintiff. It is true that the latter company is a Connecticut corporation. But when, the attachment suit was begun, the company could be brought into court, under our statute, by service upon appellant as its business manager and agent. Through the presence of its agent here it was subject to the jurisdiction of the Illinois courts, so far as suits, or proceedings for contempt, against it are concerned. A corporation can only be punished for contempt through its officers, or those acting in aid of it. (The First Cong. Church, etc. v. The City of Muscatine, 2 Iowa, 69; Eapalje on Contempts, secs. 1 and 48.) We think that it was sufficient, under the circumstances of this case, to compel the appellant as manager of the Company, to answer to the contempt proceeding, without making the Company itself, eo nomine, a party to such proceeding, because it is admitted by the appellant upon the face of this record, that he caused the attachment suit to be instituted, that it has since been prosecuted under his order and direction, that it has always been in his power, since said suit was begun, to dismiss it, and that it has always been in his power, as the manager of said company, to cause such suit to be dismissed.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Wilkin

text:
    Henry H. Gage v. William C. Goudy.

      Filed at Ottawa

      May 16, 1889.

      Appeal—what questions to be considered—absence of objections or exceptions. The record in an action of ejectment, which was tried by the court alone, showed no exception to the judgment complained of, and the bill of exceptions mentioned no motion for a new trial, and was silent as to objections or exceptions to the finding of the trial court. The errors assigned in the record Were, that the court erred in its finding of facts and entering the judgment, etc.: Held, that on this state of the record the errors assigned raised no question this court could consider.
    Writ of Error to the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.

      Mr. Augustus N. Gage, for the plaintiff in error.
    Mr. W. 0. Goudy, pro se.

   Mr. Justice Wilkin

delivered the opinion of the Court:

This was an action of ejectment, by defendant in error, against plaintiff in error, to recover certain city lots in Chicago. The trial was before the court, a jury being waived by agreement of the parties, and judgment rendered for defendant in error.

The only errors assigned in this court are, first, the Superior Court erred in entering judgment against plaintiff in error, in substance, manner and form as aforesaid; second, the Superior Court erred in finding plaintiff in error guilty, in substance, manner and form as aforesaid; third, the Superior Court erred in not entering judgment that plaintiff in error go thence without day; fourth, the Superior Court erred in not finding the issues with plaintiff in error, and in not entering judgment accordingly; fifth, the Superior Court erred in its finding of facts; and sixth, the Superior Court erred in its conclusions of law.

This record shows no exceptions to the judgment complained of. The bill of exceptions mentions no motion for a new trial, and is silent as to objections or exceptions to the finding of the trial court and the judgment rendered. In this state of the record the errors assigned raise no question which we can consider. Martin v. Foulke, 114 Ill. 206; Magill et al. v. Brown et al. 98 id. 235; Gould v. Howe, 127 id. 251, and cases there cited.

The judgment of the Superior Court must be affirmed.

Judgment affirmed.