text:
    Lemmon DeWitt et al. v. James K. Hawkins.

      Filed at Ottawa June 16, 1883.

    Mistake in making partition of lands—as to boundaries. In a suit for the partition of lands, the commissioners, in making the partition, reported one part as lot 3 and another as lot 6, each of which was described by metes and bounds, whereby a strip in the middle was included in both lots by mistake in measurement, and made a plat of the lots showing their relative positions, but from which the boundaries of the several lots could not be ascertained. The decree, in regard to the description, followed the report: Held, that the written description given of each lot, designating corners and other fixed monuments, must prevail over the plat, and it being apparent from such description that a mistake had been made, a court of equity should correct the same by dividing such strip equally between the owners of the two lots. Granting such relief is in no sense changing the original decree of partition. It is simply correcting an omission or mistake.
    Appeal from the Circuit Court of Mercer county; the Hon. John J. Glenn, Judge, presiding.
    Mr. B. C. Taliaferro, for the appellants:
    The plat referred to in the report must control as to the boundaries of the lots. McCormick v. Huse, 78 Ill. 363; Canal Trustees v. Havens, 11 id. 554; McClintock v. Rogers, id. 279; Ambrose v. Raley, 58 id. 506.
    If the deficiency in the quantity of the land is to be apportioned, all the lots should bear their share, and the whole loss should not fall on lots 3 and 6.
    The change of the original decree of partition, as in this case, can not be done if it affects third parties or innocent purchasers, as in Lemmon DeWitt’s case. McCormick v. Wheeler, 36 Ill. 114; Freeman on Judgments, sec. 74.
    The court can not change, alter or amend a decree, in substance or in material manner, after the term passes in which the decree was made. Freeman on Judgments, secs. 69, 70; Stahl v. Webster, 11 Ill. 511; State Savings Institution v. Nelson, 49 id. 171; Windett v. Hamilton, 52 id. 180; Knox v. Winsted Savings Bank, 57 id. 330; National Ins. Co. v. Chamber of Commerce, 69 id. 22; Coursen v. Hixon, 78 id. 339.
    ■ Mr. J. C. Pepper, for the appellee:.
    The plat is unintelligible, giving no starting point, section, township or county, while the report is perfect and complete as to description. The original monuments referred to in the report must control. McClintock v. Rogers, 11 Ill. 279; Laflin v. Herrington, 16 id. 301; Kamphouse v. Gaffner, 73 id. 453; Miller v. Beeler, 25 id. 163; Sawyer v. Cox, 62 id. 130; Bauer v. Gotmanhausen, 65 id. 499; Lull v. City of Chicago, 68 id. 518.
    The bill did not seek to change or alter the original decree, but to construe it, and define the parties’ equitable rights under it.
   Mr. Justice Scott

delivered the opinion of the Court:

Complainant, by his original and amended bills, shows that in a proceeding had in 1876, in a partition suit, a tract of land containing 317 acres, that had belonged to Thomas Hawkins in his lifetime, and which, perhaps, was set apart to his widow, was divided among the heirs of decedent. It is represented that in the parcel set apart and. allotted to complainant, as one of the heirs, and in the tract set apart and allowed to defendants’ grantor, there was included a stripj of land about one and one-half rods wide at one end, and about one-half rod wide at the other end. The lots in which this piece of land is included are numbered 3 and 6 on the plat made by the commissioners appointed by the court to make partition of the estate, and is referred to and made a part of their report, but each lot is described by metes and bounds, and it is in that way the same piece of land is included in both lots. Complainant alleges the mistake in the partition proceedings in this respect, and by his amended hill asks to have an equal division made of the strip of land described, giving one-half to him, as the owner of lot 6, and the other half to defendant, as the owner of lot 3. Defendant answered both the original and amended bills, and while admitting the division of the lands into lots numbered as alleged, insists the lots were set off to the respective heirs by distances, metes and hounds, as described on the plat connected with and made a part of the commissioners’ report, for the purpose of showing exactly the boundaries of the several lots named and mentioned in the report, and denies the tract allotted to complainant was described as he alleges, but that it was described as “lot 6, as designated in plat ‘A,’ hereto attached, ” and for that reason insists the plat should' control, rather than the description thereafter given by metes and bounds. The circuit court decreed a partition of the strip of land in dispute should be made equally between the two lots owned hv complainant and defendant, and thereupon defendant, being dissatisfied with that decision, prayed for and was allowed an appeal to this court.

It is apparent the work of making partition of the original tract of land among the respective heirs was very unskillfully done. It seems to have been done by the commissioners appointed by the court, without the aid of a surveyor. It is obvious the plat was made to show the relative position of each lot. Nothing more could have been intended by it. Each lot was described by metes and bounds, and it is not perceived, from anything contained in this record, how the portion allotted to each heir could be otherwise ascertained. It certainly could not be done by anything appearing on the plat. The written description given of each lot designates corners or other fixed monuments, from which any surveyor ■could readily ascertain the location of each lot. That could not be done from the plat.

Begarding, as must be done, the description by metes and bounds as determining the location of each lot, rather than the plat, it is very apparent the strip of land in controversy is included in lot 6, allotted to complainant, and also in lot 3, allotted to defendants’ grantor. Evidently the mistake occurred in the measurements made by the commissioners, and the confirmation of their report vested the title to the identical piece of land in both parties. It is obvious the error should be corrected in some way that would be just and right. There is not land enough to give both parties the quantity embraced in the descriptions of the respective lots, and it would seem to be equitable each lot should bear a portion of the loss. Making an equal division between the owners of the adj acent lots, as the decree does, is the only mode that suggests itself by which justice may be done. Had not the mistake occurred, it could not now be known how the commissioners would have divided the land between the heirs, and the nearest approach that can now be made to fairness, is an equal division of that which was allotted to both heirs. .

Decreeing a division of the land in controversy, as was done by the court, is in no sense changing' the original decree of partition. That, of course, could not be done after the rights of third parties had intervened. It is simply correcting an omission, without which the respective parties could not enjoy in severalty that which really had been allotted to them. That may be done, and it can be better done in a court of equity than a court of law.

The decree of the circuit court will be affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Scholpield

license: Public Domain

text:
    John R. Duffin v. The People of the State of Illinois.

      Filed at Mt. Vernon June 16, 1883.

      1. Criminal law—indictment for forgery—sufficiency. A count in an indictment charging that the defendant did forge and counterfeit a certain forged and counterfeited paper writing, instead of alleging the forging and counterfeiting of a certain paper writing, merely, is sufficient, according to the precedents, and is good.
    2. Same—where the signature alleged to have been forged is in German characters. Where a person’s name is forged to a note in German or Gothic characters, it is not necessary to allege in the indictment that the signature is in German, and give a translation. The rule of law that a document in a foreign language forged must be translated and explained by averments, has no application where the obligation is in the English language, and the name of the maker is written in the German script, when the name is written the same in both languages.
    3. Same—'proof of forgery of only one of several names—sufficient. A conviction may be had under an indictment for the forgery of the names of three persons to a note, on proof of the forgery of the signature of either one of them.
    4. Same—evidence of intent. An indictment for forgery charged that the defendant had forged the names of certain persons to a note, payable to a certain bank, with intent to injure the bank. He obtained the money on the note from the bank. On the trial the defendant testified that his intent was to injure the bank, and not the persons whose names he used. It was held, that this was ample evidence of an intent to injure the bank.
    5. Same—instruction as to reasonable doubt. On the trial of one for the forgery of a note, the defendant testified that the signatures to the note were genuine, but that he procured them by artifice, fraud and deception, while the alleged makers denied that they ever signed the same. The defendant asked this instruction, which was refused: "The defendant in this case has testified. If the jury, having heard this testimony, and weighing it with the other evidence in the case, have a reasonable doubt that the statement of the defendant in regard to the making and signing of the note in controversy is or is not true, they must acquit him:” Held, properly refused, as calculated to mislead.
    6. Same—one good count will sustain a general verdict. If one count in an indictment is bad, and the others are good, a general verdict finding the defendant guilty will-not be disturbed, and the objection to the defective count will not avail after such verdict.
    7. Same—evidence—photograph copy of forged note. A photographed copy of a forged note is admissible in evidence, where the original has so faded as to become illegible, on proof that it is an exact copy of the words of the original, when it is not offered to prove the handwriting of the signatures, but merely the words of the note. If material to show it is an exact similitude with the original in respect to form, shading and coloring, the testimony of anfartist or expert might be required.
    8. Witness—credibility. Where a defendant in an indictment, in his testimony shows a mind deliberately trained in wrong, and a conscience oblivious to a sense of justice, a jury may well disbelieve his evidence, when contradicted by other witnesses of undoubted veracity.
    9. Instruction— not read, treated as refused. Where an instruction asked is neither marked given or refused, but is not permitted to be read to the jury, it is in effect refused.
    10. Evidence—of its consideration by the jury—not in parts, but as a whole. An instruction in a criminal case, that if the-jurv, taking the evidence for the prosecution, which they believe to be true beyond all reasonable doubt, and that for the defendant, which is not false beyond all reasonable doubt, can reconcile the same with any theory of innocence of the crime charged, it is their duty to acquit, was held rightfully refused. The jury is not required to take-up and consider evidence in this order, but should consider the whole together, and determine its combined effect.
    11. Practice—improper remarks of counsel. On the trial of a person for forgery, the defendant addressed the jury, when one of his counsel openly stated, in the presence of the jury, that he withdrew from the case, and withdrew all he had said, and the State’s attofney, in closing the argument, alluded to this, saying one of the counsel had wisely withdrawn: Held, that while the conduct of defendant’s counsel, and his remarks, and those of the State’s attorney, were highly improper and censurable, yet as the guilt of the defendant was not doubtful, and the punishment was not excessive, but was fully justified by the evidence, it furnished no ground for a reversal of the judgment.
    Writ of Error to the Circuit- Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.
    This was an indictment against John B. Duffin, alias Hamlet S. Felton, for forgery.
    After a verdict of conviction the defendant entered his motion for a'new trial, and in support of some of the grounds of his application presented an affidavit alleging certain misconduct on the part of one of his counsel during the trial in the court below. The affidavit sets forth, substantially, that the counsel referred to undertook to address the jury while in an intoxicated condition, and that thereupon the defendant, himself an attorney, proceeded to address the jury in his own behalf, when he was interrupted by his counsel of whose conduct he complains, such counsel being still in an intoxicated condition, and who appeared at the rail of the jury box, and without asking permission from the court, or other preliminary, and in an excited manner, faced the jury, and addressing them, spoke as follows, to-wit: “Gentlemen, I want it distinctly understood that if Mr. Felton is going to argue his own case I withdraw all that I have said and done for him in this case. What I have said don’t count,—I want that understood, gentlemen.” At this point, Mr. E. L. Thomas, the other attorney for the defendant, rose and resisted the interruption, and stated to the court that he held ittto be the constitutional fight of his client to speak in his own defence. Then followed an unseemly scene, which was finally stopped by the court promptly informing the offending counsel that he had a perfect right to withdraw from the case and be silent.
    The said defendant further says, that neither he ñor his attorney, E. L. Thomas, or any agent of theirs, either agreed to or procured, or colluded with the said associate counsel to procure, him to do what he did in withdrawing from the case, but, on the contrary, that they did everything in their power to prevent him from doing what he did, and from uttering the words set out above.
    The defendant further says, that this unexpected blow, coming, as it did, from his own attorney, and at the time and place described, unnerved and confused him, the defendant, and greatly impaired his ability to argue his case, and therefore injured his defence. And said defendant further says, that he believes that the remarks of his counsel, given above, to, and his conduct before, the jury, as set out above, greatly prejudiced the minds of the jury against him, the defendant.
    The defendant further says, that when his counsel, E. L. Thomas, had advanced to the rail of the jury box to read his instructions to the jury, in obedience to the order of the court, the said associate counsel, still intoxicated, confronted the said E. L. Thomas, and in the presence and hearing of the jury demanded that the instructions be not read, saying, “I wrote those instructions, all of them, and they don’t count in this ease.” Mr. E. L. Thomas, informed him that the instructions had been passed on by.the court, and that we did not have time now to write others. This unseemly scene took place in the presence and hearing of the jury, and was allowed by the court; hut the defendant does not know that the court was aware of the controversy at the time it occurred.
    The defendant further says, that while the instructions were being read by E. L. Thomas, the said associate counsel sat near the defendant, in the hearing and presence of the jury, and abused the defendant, by saying: “You are a God damned fool. You ought to he convicted, and sent up for forty years. I had you acquitted, God damn you, and you convicted yourself. You think you' are sharp, don’t you ? You are a God damned ass. I wrote all them instructions, and they don’t count,” etc. The defendant says that this occurred after the said counsel had withdrawn from the ease; that the defendant could not prevent it, and that it was allowed by the court, though the court may not have been aware that the said counsel was so abusing the defendant, and the defendant was in no condition to defend himself, for that at the time his only attorney was engaged in reading his instructions to the jury.
    The defendant further says, that Mr. Charles Knispel, in closing the argument for the prosecution, commented on matters not in evidence, and not admissible in evideneé, and said, in referring to the unseemly withdrawal of one of the counsel from the defence:’ “Gentlemen,” (addressing the jury,) “you have seen yourselves that the leading attorney on the other side wisely withdrew from the case, for he knew that it was hopeless.” And he shortly afterwards said: “Now, gentlemen, if, after that, you have a doubt as to the prisoner’s guilt, you have a doubt that is not shared in by any man on this floor,” (referring to the bystanders in the court room.) This language was promptly objected and excepted to by the defendant’s counsel.
    The defendant further says, that neither his counsel, B. L. Thomas, Esq., nor he, Belton, nor any other person with their knowledge or consent, had any part in procuring the intoxication of the said associate counsel', or in procuring him to say or do any of the things set out above, but on the contrary, that they, the said Thomas and Belton, did all in their power to prevent the occurrences aforesaid, and that they (the matters set out) were allowed by the court, although, as said, the court may not have been aware of the occurrences at the time they occurred.
    Mr. Edward L. Thomas, for the plaintiff in error.
    Mr. E. D. W. Holder, State’s attorney, and Mr. James McCartney, Attorney General, for the People.
   Mr. Justice Scholpield

delivered the 'opinion of the Court:

The indictment under which plaintiff in error was convicted contains five counts, charging, in varying language, in some, the forging, and in the others, the uttering, and publishing as well, of an instrument, of which the following is a copy:

“$Í106tW. Belleville, Ill., April 12th, 1880.
“Four months (without grace) after date we, or either of us, promise to pay to the First National Bank of Belleville, or order, the sum of four thousand one hundred and six -$>s dollars, for value received, with eight per cent interest per annum from maturity, at the office of the First National Bank of Belleville.
gatoh 0c£|tntbt,
Julius Winkles,
Wm. B. Padeield.”

A general motion to quash the several counts was made hy plaintiff in error, and overruled by the court, and this is the first error alleged in the ruling to w.hich our attention is invited' by the printed argument in behalf of plaintiff in error. The contention is, that the indictment .charges, in each count, the forging of the name of Jacob Schmidt, and the copy of the note set out in each count shows the name to have been written in German; but since there is no allegation that the name of Jacob Schmidt was signed in German, each count is, upon its face, defective. In support of this, reference is made to Wharton on Crim, Pleading and Practice, (8th ed.) sec. 181, and Wharton on Crim. Law, (8th ed.) see. 729. The references are hardly pertinent. They show that an instrument in a foreign language must be translated and explained by averments in the indictment. But there is no pretense that the instrument here charged to have been forged is in the'German language. The name of Jacob Schmidt is simply written, in Gothic instead of Roman characters, and when written in the one it is not made to appear it is in anywise different from what it is when written in the other.

A special objection to the third count is urged, in that it charges that plaintiff in error did “forge and counterfeit a certain forged and counterfeited paper writing, ” whereas it ought to have charged the forging and counterfeiting of a paper writing, etc., merely. We perceive no inaccuracy in the language of the count. The result of forging and counterfeiting is, certainly, a forged and counterfeited paper writing. The words “forged” and “counterfeited,” as used, are simply equivalent to saying plaintiff in error made,or fabricated a false and counterfeited paper writing, by the process of forging and counterfeiting. The count is in the language of the old precedents. (1 Wharton on Precedents and Pleas, (4th ed.) No. 293. See, also, the form of indictment in The People v. Kingsley, 2 Cowen, 522.) But even if the count were bad, since the verdict is general, and the other 'counts are good, the objection would be unavailing. Townsend v. The People, 3 Scam. 326; Holliday v. The People, 4 Gilm. Ill; Sahlinger et al. v. The People, 102 Ill. 241; Murphy v. The People, 104 id. 528.

On the trial, the prosecution offered in evidence the promissory note alleged to have been forged, and a photographed copy thereof. Plaintiff in error objected, first, that the name of Jacob Schmidt was in a foreign language; and second, that the process of taking the photographed copy had not been proved by an artist in that line. Both objections were overruled by the court, and the offered evidence was given to the jury. This ruling constitutes the second error claimed, in the argument on behalf of plaintiff in error, to have occurred to his prejudice.

If what has been said in regard to the name of Jacob Schmidt, in discussing the motion to quash the indictment, is correct, it must follow the objection that his name was written in a foreign language is untenable. The name is simply “Jacob Schmidt,” written in characters that are understood as representing J-a-k-o-b S-c-h-m-i-d-t,

If the purpose of introducing the photographed copy in evidence had been to have proven the forgery by a comparison of handwritings, there would have been much more force than there is in the objection in that regard; but there was no such purpose or' use. The officers of the bank, observing that the ink in which the note was written was rapidly fading, had the note photographed, and this copy was offered in evidence simply to .prove the words of the original, and not the peculiarity of handwriting. Since the taking of that photograph the original has faded so that it has become illegible, or practically so. Under these circumstances we think there can be no doubt parol evidence of what the original note was would have been competent evidence, and most certainly a compared copy would, though there had been no attempt, in making it, to imitate the handwriting of the original. An artist may be required to determine whether the letters of a professed copy are an exact similitude as to form, shading and coloring of those of the original, where that is material; but inasmuch as the words may be the same, though the form, shading and coloring of the letters are different, it can not be indispensable to have a photographic artist where the sameness of the words in a copy with those in the original is alone to be proved. We think the proof of the copy here was clearly competent. The cashier of the bank ought to have been, and we presume was, able to tell just as well as the best photographer whether the toords in the copy were the same as the icords in the original.

The next contention of plaintiff in error is, that the evidence does not sustain the verdict. Each of the three purported makers of this promissory note swears, positively and unqualifiedly, that he did not sign it. Plaintiff in error admits they' did not sign it knowing what it was, but insists, nevertheless, their signatures are genuine, and that they do not explicitly deny that they are genuine. He admits, and testifies, that he presented this promissory note to the bank and obtained $4000 thereon, which he appropriated to his own use, and that neither of the purported makers of the note signed it knowingly or intentionally, but, he says, by artifice and deception he obtained each of their genuine signatures thereto; that he obtained Winkler’s under pretext of haying him sign a duplicate release of a mortgage; that he obtained Schmidt’s by pretending to have him sign an attachment bond, and that he obtained Padfield’s by having him sign what Padfield supposed to be a receipt; that in each case he artfully substituted the note for that which they were requested to sign and supposed they were signing when they wrote their names, without attracting their attention. He says he made an ink that he knew would rapidly fade, with which he wrote or rather filled up the note, and in which each of the parties wrote his name; that he did this in order that the note might become illegible before maturity, and the loss, therefore, fall on the bank rather than on the purported makers of the note. We think the purported makers of the note do each deny, in their evidence, the genuineness of their signatures, as well as the fact that they ever signed such a note. Schmidt, in answer to the question, “Did you sign this note?” answered, “No sir, I never did. I never signed any such note as that, for Felton or any body else. I never put my name there. ” And he positively denied the occurrence of the circumstances under which plaintiff in error testified he obtained his signature. He testified that he had never in his life signed more than one paper at the request or in the presence of plaintiff in error, and that was a contract between himself and James M. Padfield. Winkler testified : “I never signed any note payable to the First National Bank. I never signed this note.” And he also positively denied the occurrences detailed by plaintiff in error as those under which he obtained Winkler’s signature. He testified that he never signed any paper at the request or in the presence of the plaintiff in error, which went into the custody of plaintiff in error. Padfield testified: “The signature on that note is not mine. It is a pretty good imitation. ”

There were other circumstances before the jury strongly tending to prove the guilt of the plaintiff in error,—such as, when first arrested, denying his name, and afterwards admitting his guilt. Undoubtedly some circumstances were proved, tending, though, as we think, but slightly, to corroborate the testimony of plaintiff in error; but the weight and effect of these were, properly, questions peculiarly for the jury,—and we can not say they clearly erred in their duty in this respect. The shameless defence interposed, indicates, in itself, a mind deliberately trained in wrong, and a conscience oblivious of a sense of justice. One who can, with exultation, as plaintiff in error seems to, 'tell such a story as he does, would not likely hesitate to screen himself, to the extent he could, behind false statements, and a jury can not be censured for disbelieving such an one when contradicted by other witnesses of unsuspected veracity.

The next point contended for by counsel for plaintiff in error is, the court erred in refusing certain instructions asked on his behalf. One of these reads thus:

“The defendant in this case has testified. If the jury, having heard this testimony, and weighing it with the other evidence in the case, has a reasonable doubt that the statement of the defendant in regard to the making and signing of the. note in controversy is or is not true, they must acquit him. ”

This was very properly refused. At" best it could only have confused the minds of the jurors, and misled them from the,true point of inquiry. In other instructions .asked by plaintiff in error, and given by the court, the jury were fully instructed as to the doctrine of reasonable doubt, and nothing more on that subject was necessary.

Another instruction was neither marked “given” or “refused,” but was not permitted to be read to the jury. This was, in effect, its refusal. (Cook v. Hunt, 24 Ill. 535; McKenzie v. Remington, 79 id. 388.) The instruction was artfully framed to mislead the jury, and was properly refused. It reads thus:

“The court instructs the jury, that if the jury, taking the evidence for the prosecution, which they believe to be true beyond all reasonable doubt, and that for the defendant, which is not false beyond all reasonable doubt, can reconcile the same with any theory of innocence of the crime charged in the indictment, it is their duty to acquit the prisoner. ”

No rule of law requires the jury, in considering of their verdict, to take up and consider the evidence in this order. All the evidence is to be fully and fairly considered, and when thus considered the jury are to determine, is the defendant proved, beyond a reasonable, doubt, to be guilty as charged in the indictment. But often evidence which, in and of itself, when considered alone, is inconclusive or but probable evidence, when considered in connection with other evidence becomes of'great probative force. The effect of every part of the evidence upon and in connection with every other part is to be considered, for, in this way, not infrequently the correctness of the different parts, or the reverse, is demonstrated, and the combined result of all can in no other way be ascertained.

In two other instructions refused the court were asked to instruct the jury that they should acquit if the jury had a reasonable doubt whether either one of the purported makers signed the note. This is not the law. If either signature was proved to have been forged, the offence charged was made out. 1 Wharton on Crim. Law, (8th ed.) secs. 677, 678.

The other instructions refused were properly refused, because the principle attempted to be asserted was embraced by instructions previously given.

Some point is made in argument on the alleged insufficiency of the proof to show that the intention was to injure ' the bank, as charged in the indictment. Plaintiff in error testified the intent was to injure the bank, and he also testified that he obtained the money from the bank on the note.

This was ample evidence of an intent to injure the bank. See Wharton on Crim. Law, (8th ed.) sec. 713.

The last objection that we deem it important to notice is, it is claimed plaintiff in error was seriously prejudiced before the jury by certain language and conduct of one of his own attorneys, (detailed at length in an affidavit filed in support of his motion for a new trial,) who became intoxicated, and withdrew from the defence while the case was being finally argued, and also by the allusion to that attorney’s withdrawal from the defence by the attorney making the closing speech, on behalf of the prosecution. If the guilt of the plaintiff in error were doubtful, or if the punishment imposed might be regarded as excessive, we are not prepared to say that we would not hold the case should be reversed for the language and conduct of the attorney as recited, (its truth being shown by the bill of exceptions,) in connection with this improper allusion of the attorney for the prosecution ; but in our opinion, under the proofs preserved in the record, the guilt of the plaintiff in error is not doubtful, and the punishment imposed upon him is not excessive, and so it must result that the language and conduct of the defendant’s attorney, and the allusion of the attorney for the prosecution complained of, produced no improper result. It would, indeed, have been matter of astonishment, if, under all. the proofs recited in this record, the jury had found plaintiff in error not guilty, and there are no circumstances of extenuation or mitigation in proof. By his own showing he was possessed of a liberal education, and was licensed to practice the law. No impediment to a successful, honorable career, save his dishonesty, barred his way. It does not even appear that he was impelled by any present need of money. With more than ordinary deliberation, as is apparent from his own testimony, he abandoned a career of honesty for one of crime. His education and his professional connection made him much more dangerous to society than he would have been if he had not enjoyed those advantages. It is, under all the circumstances proved, eminently proper that a punishment should be imposed that may make his ease an example to deter others, in like situation, who-may be tempted to sin as he did. If the language and conduct of defendant’s attorney was as disclosed in the affidavit of plaintiff in error, it was a gross breach of professional duty, and a serious contempt of court, and the attorney should have been promptly and severely punished; but it rested with.the trial judge to inflict that punishment, or mercifully to pass it by without notice, and that he did the latter is no ground of error here. It is enough for the present that the conduct of .that attorney, however censurable, did not, in our opinion, improperly affect the action of the jury.

The judgment is affirmed.

Judgment affirmed!.


author: Mr. Justice Dickey

text:
    Pauline Friedman v. Rebecca Steiner et al.

      Filed at Ottawa May 10, 1883.

    1. Will—of the estate devised—a determinable fee. A testator, after making certain bequests, devised the residue of his estate to his wife, “and unto her heirs and assigns forever, to the total exclusion of any and all person or persons whatsoever,” but upon the express condition that in case the wife, after his decease, should die intestate, and without leaving her surviving lawful issue, then all the rest and residue of the estate so bequeathed to the wife should be converted into money, and paid over by his executors, as follows: To A B, $5000, C D, $1000, etc.: Held, that the estate of the wife in the realty was not a mere life estate,' with power to dispose of the fee by will, as that could not be inherited, nor was it an estate in fee simple, as it can not descend to her heirs generally, but to the heirs of her body, but that her estate was an estate in fee determinable, which may be perpetual, or may be determined by her death intestate, without lawful issue, or previous alienation of the land. . '

      2. Under such devise the determinable fee granted to the wife may be changed into a fee simple absolute, either by the sale and conveyance of the land by her in fee simple, or by her death leaving a will granting the land to a devisee, or by her death leaving lawful issue.
    3. Same—qualities of a fee determinable. One of the peculiarities of a “fee determinable” is, that it may become a fee simple absolute upon the happening of any event which renders impossible the contingency upon which such estate is to end.

      i. Same—construction—■condition repugnant to estate given. • While conditions repugnant to the estate granted to which they are annexed are absolutely void, yet in the construction of a will the court must consider all the words of the will, including all provisos and conditions, for the purpose of ascertaining what estate the testator intended to confer by the qualifying words of the will.
    Appeal from the Circuit Court of Cook comity; the 'Hon. Murray F. Tuley, Judge, presiding.
    Leopold Mayer and Henry Steiner owned the real estate in question as tenants in common, each owning in fee simple one undivided half thereof. On December 22, 1879, Henry Steiner died, leaving a will, which was. duly proven and admitted to probate, and letters testamentary issued to his executors. By his will the testator charged his property with various legacies, and the residuum of his estate he devised as follows:
    “Item 13. I give and bequeath all the rest and residue of my said estate, real, personal and mixed, of Which I shall die seized, possessed or entitled to, unto my beloved wife, Rebecca Steiner, and unto her heirs and assigns forever, to the total exclusion of any ancl all person or persons whatsoever: Provided, however, upon the express condition hereby made by me, in case the said Rebecca Steiner, after my decease, shall die intestate, and without leaving her surviving lawful issue, * * * that then, and in such event, all the rest and residue of my said estate so bequeathed and devised unto her * * * shall at once be converted into money” by my executor, “and the said money shall be paid over * * * as follows, namely: Unto the said Pauline Friedman the further sum of $5000,” unto Henrietta Goldvogel $1000, and to Goles Steiner $3000, and to Yetta Kahn $1000, “and any and all the rest or residue of said money shall be divided up in equal shares, and paid as follows, to-wit: One-third part of said money to the trustees or board of directors of the said United Hebrew Relief Association of Chicago,” and one-third part to the Jewish Hospital of Chicago, and one-third part thereof to the Jewish Orphan Asylum, in Cleveland.
    This is a suit in chancery, brought by Mayer, the conceded owner in fee simple of one undivided half of the real estate, against the widow, executors, devisees, heirs and legatees of Henry Steiner, deceased, for partition.
    By the decree of the circuit court ordering partition, it is declared that Henry Steiner devised unto Rebecca Steiner, “in fee simple,” the undivided one-half of the real estate in question, with “no limitation” upon her “right to sell and convey the fee” of'the same, and to receive full consideration therefor, and that the proviso in the will relates to, and is to operate upon, whatever property may remain in her at the time of her death, and it was adjudged and decreed that she is entitled to one-half of said premises in fee simple, etc. From this decree Pauline Friedman appeals.
    Mr. Eugene E. Prussing, for the appellant:
    It is conceded that the estate in the realty devised is not a vested remainder, because it depends upon a contingency which may not happen, nor yet is it a contingent remainder, as, according to the strict rules of the common law, a fee can not be limited upon a fee, on the ground of repugnancy. 2 Blaclistone’s Com. *173; 1 Jarman on Wills, *810; 4 Kent’s Com. *131.
    Counsel insists that the language of this will creates an executory devise. 4 Kent’s Com. *264.

      “If there be an absolute power of disposition given by will to the first taker, the remainder over is void as a remainder because of the preceding fee, and it is void by way of executory devise because the limitation i$ inconsistent with the absolute estate or power of disposition expressly given, or necessarily implied, by the will.” 4 Kent’s Com. *270.
    While the second limitation is inconsistent with the first, yet both may stand together by giving the wife a life estate, with power to destroy the limitation over by appointment in her will,—that is, only a life estate, and not a fee, vests in the wife; and -while, under this construction, nothing would remain in her to be willed, yet it is well established that such a devisee for life can will -the whole estate-by way of appointment,—the power may be conferred upon her in the will. (Funk v. Eggleston, 92 Ill. 515.) There being only a life estate, she ^could not by deed transfer the fee, and thus destroy the limitation over in a way not provided for in the will.
    One of the necessary elements of an executory devise is, that it can not be destroyed by the person holding the first estate. It is indestructible. 4 Kent’s Com. 270.
    Not so with a contingent remainder. If Kebeeca Steiner can convey the fee to these premises, as found by the circuit court, then she can destroy this executory devise in a way not provided for in the will.
    Messrs. Kosenthal & Pence, for the appellees:
    We concede that the true method of interpreting a will is the ascertainment of the intention of the testator, when not contrary to some established principle of law. The devise of the residuary estate is a fee simple, not only by virtue of the technical words used, but by the further words, “to the total exclusion of any and all person or persons whatsoever.” This clearly shows a,n intention to give the residue of his estate to the wife. Meredith v. Heneage, 1 Sim. 551.

      Conditions that are repugnant to the estate to which they are annexed are absolutely void. 1 Jarman on Wills, 810; 1 Kent’s Com. *131, 270; 1 Greenleaf’s Cruise, 702, *203; Coke on Littleton, secs. 360, 223 a; Gleason v. Fayerweather, 4 Gray, 318; Blackstone v. Davis, 21 Pick. 42; Ide v. Ide, 5 Mass. 500; Jackson v. Bull, 10 Johns. 19; Jackson v. Delaney, 13 id. 537; Jackson v. Robins, 16 id. 537; Burbank v. Whitney, 24 Pick. 146; Karker’s Appeal, 60 Pa. St. 141; Attorney General v. Hall, Fitzg. 314; Holmes v. Godson, 8 DeG., McN. & G. 156; Gulliver v. Vaux, id. 166; Clayton v. Lowe, 5 Barn. & Ald. 636.
    The estate limited to Rebecca Steiner is a fee, and the estate limited over after the death of Rebecca Steiner intestate, without issue, is a fee, and hence they are repugnant and void. A fee can not be mounted upon a fee, for if the whole estate be granted to the first taker, nothing remains in the testator to grant by way of remainder. The second estate is repugnant to the first, and both can not stand together.
    If an estate tail is created by the use of such language, as, dying without issue, then the remainder over is held void on the ground of a perpetuity, for all the issue of the first taker may not die during the life or lives in being and twenty-one years afterward, and hence as an executory devise it could not operate, but would be held void on the ground of public policy to prevent perpetuities. Patterson v. Ellis, 11 Wend. 278; Bells v. Gillespie, 5 Rand. 273; 4 Kent’s Com. 271-276 ; 2 Jarman on Wills, 301, 118.
   Mr. Justice Dickey

delivered the opinion of the Court:

The controversy in this case relates solely to the nature and extent of the estate taken, or to be taken, by the respective parties under the will of Henry Steiner, deceased. The decree of the circuit court adjudged that Mrs. Steiner is seized of an estate in fee simple to the undivided half of the lands in question; that she has full power to dispose of the same by deed or by will, and that the appellant, and others mentioned in the proviso in item 13 of the will, can have no vested interest in the property, unless Mrs. Steiner should, while still holding the property, die intestate, without lawful issue her surviving.

Appellant insists that “the words of the proviso constitute an executory devise, and, as such, limits the estate granted to Mrs. Steiner to a life estate, with power of appointment by will, and that in default of such appointment, the fee, or. the proceeds thereof, should go to the parties mentioned in the proviso,” she (appellant) to receive $5000, and that Mrs. Steiner “can not, by deed, transfer the fee and destroy the limitation over in a way not provided in the will.” On the other hand, it is claimed for appellees that the granting words in the will confer upon her a fee simple title, and that the condition contained in the proviso is repugnant to the estate to which it is annexed, and therefore absolutely void.

We can not approve the position taken by either of the jiarties. The estate of Mrs. Steiner can not properly be said to be merely a life estate, with power to dispose of the fee by will, for, by the terms of the will, the lands granted to her may, at her death, be inherited, in fee simple absolute, by heirs of her body. An estate held for the life of the tenant can never be inherited by heirs of the life tenant. Nor does Mrs. Steiner hold an estate in fee simple, for it is (by the will) in no event to descend to her collateral heirs, as a fee simple might. The limitation of the inheritance to the surviving heirs of her body excludes the idea of an estate in fee simple.

We recognize the rule of law that “conditions that are repugnant to the estate to which they are annexed are absolutely void, ” yet, in the construction of a will, we must consider all the words of the will, including all provisos and conditions, for the purpose of ascertaining what estate the testator intended to confer by the granting words of the will; and, weighing the words of the proviso, we think they do qualify the granting words, and do show that the testator did not intend to confer upon his wife a fee simple absolute in this property. Kent says: “Fee simple is a pure inheritance, clear of any qualification or condition, and it gives the right of succession to all the heirs generally.” And again: “It is an estate of perpetuity, and confers an unlimited power of alienation.” Such an estate, we think, was here granted to Mrs. Steiner, except in so far as the same is qualified by the words of the proviso, and we think the words of the proviso do qualify the estate granted, and reduce it below that of a fee simple estate; but this reduction below a fee simple absolute extends no farther than the express words of the jiroviso declare or necessarily imply. One of the qualities of a fee simple estate is the power to convey a fee simple estate to another, or, in the language of Kent, it “confers unlimited power of alienation. ” We find nothing in the words of the proviso to impair this unlimited power of alienation given by the granting words of the will. The words of the grant are so cogent that we can not doubt that it was the intention of the donor to give to her, throughout her life, a dominion over this property as full and as complete as if he had granted the same to her in fee simple absolute, without condition, limitation, restriction or qualification, and also had given her the power of disposition by will, and it was clearly the intention of the testator to give her an estate which might descend to her surviving lawful issue, and thereby become in them an estate in fee simple absolute. We have no doubt about the power of Mrs. Steiner to pass to a purchaser from her a fee simple absolute in the lands of the estate, subject, of course, to the charges imposed upon this property by the earlier provisions of the will. Under this will we think the interest of Mrs. Steiner in the lands of the estate of her deceased husband is not an estate in fee simple, but is “an estate in fee determinable, ” which estate may be perpetual, or may be determined by the death of Mrs. Steiner intestate, without surviving lawful issue, and without previous alienation of the land by her, and, in that contingency, limited over to the beneficiaries mentioned in the proviso in item 13 of the will. See 4 Kent’s Com. p. 8, et seq.

One of the peculiarities of a “fee determinable” is, that it may become a fee simple absolute upon the happening of any event which renders impossible the event or combination of events upon which such estate is to end. An example given of such “determinable fee” is, “where an estate is granted to a man and his heirs until the marriage of B, ” and it is said: “If the event marked out as a boundary to the time of the continuance of the estate becomes impossible, (as, by the death of A before his marriage,) the estate then ceases to be determinable, and changes into a simple and absolute fee; but until that time the estate is in the grantee. ” And it is added: “It is the uncertainty of the event, and the possibility that the fee may last forever, that renders the estate afee, and not merely a freehold.”

In addition to being invested with an estate in fee determinable, Mrs. Steiner is, by necessary implication from the words of the will, clothed with unlimited power of alienation of the projierty in fee simple absolute. Under this will, as we understand it, the determinable fee granted to Mrs. Steiner may be perpetual, and the same may be changed into a fee simple absolute, either by the sale and conveyance of the land by Mrs. Steiner in fee simple, or by the death of Mrs. Steiner leaving a will granting the land to a devisee, or by her death leaving lawful issue her surviving. On the other hand, the determinable fee held by her may end by her death intestate, and without lawful issue, while the estate is unchanged and remaining in her under -the will; and, in such case, the estate given her being thus ended, the contingent or conditional limitation over to appellant and others will take effect, and not otherwise. At present they have no vested interest in the property. The general rule that the determinable quality of the estate follows the transfers where the owner of a determinable fee conveys in fee, applies where such grantor is merely the owner of a base fee, and has no power other than that incident to the ownership of such an estate; but in this ease we hold that Mrs. Steiner not only takes a determinable fee, but is, by necessary implication, clothed with power to convey in fee simple absolute. Declining to exercise this power, she might, no doubt, convey to a grantee the determinable fee which she holds.

It was error in the circuit court to declare and adjudge that Mrs. Steiner’s interest is that of an estate in fee simple. In all other respects the decree is approved. For the error indicated the decree is reversed, and the cause remanded, with directions to the circuit court to enter a decree conforming to the views herein expressed. In fact, it seems probable that the judge of the circuit court held substantially the same views here expressed, and that the error in the record resulted from a want of care in the drafting of the decree.

Decree reversed.


author: Mr. Justice Scholeield

text:
    Henrietta Lang v. William W. Clemens.

      Filed at Mt. Vernon June 16, 1883.

      Decebe—not void for error. A husband and wife brought a suit for the assignment of dower and partition of land in which the wife was interested as an heir, making the other heirs parties. A partition was made, reported and confirmed, but the wife’s name was wholly omitted in the decree and subsequent proceedings, and her portion was set off and assigned to the husband. This decree was never reversed or set aside, and subsequently the land was sold on execution against the husband, and on bill filed by the wife’s only heir to set aside the sale as a cloud on her title, it was held, that the decree of partition, although erroneous, was not void, and passed the title to the husband, and that the land was subject to sale on the execution.

      Appeal from the Circuit Court of Williamson county; the Hon. Daniel M. Bbowning, Judge, presiding.
    Mr. Geobge W. Young, for the appellant.
    Mr. A. D. Duee, and Mr. J. W. Bubton, for the appellee.
   Mr. Justice Scholeield

delivered the opinion of the Court:

This was a bill to remove a cloud from a title. Appellee claims under a judgment and execution against Patrick Lang, and a sale thereunder, and there is no question of the sufficiency of his title, if there was a title in Lang which might have been sold for the payment of his debts. Appellant is the only daughter and heir at law of Patrick Lang, and his wife, Sarah Lang, and she claims as heir at law of her mother, said Sarah, who is now deceased.

In April, 1852, Patrick and Sarah Lang commenced a suit for assignment of dower and for partition, against the widow and heirs at law of one Aikman, theretofore deceased, by filing their joint petition therefor in the circuit court of Williamson county, alleging therein that Sarah Lang was a daughter of said Aikman. Such proceedings were thereupon then had that the court decreed that dower be assigned out of, and partition be made of, the lands whereof said Aikman died seized; but the name of said Sarah is wholly omitted in this decree, and, instead thereof, an' interest is directed to be assigned and set apart to her said husband, Patrick Lang, as one of the heirs at law of said Aikman. This was followed by a report of commissioners, approved by the Williamson county circuit court at its August term, 1852, setting apart certain lands, including that here in controversy, to said Patrick Lang. No appeal was ever taken from those orders or decrees, nor was any writ of error ever prosecuted thereon.

The court having jurisdiction over the persons of the parties and of the subject matter, these orders or decrees, although erroneous, were not void. They were binding until reversed. That an order or decree in partition is as binding as' any other judgment or decree, follows, from necessity, from the fact that they have the force and effect of judgments and decrees, and no authority can be necessary to establish so obvious and familiar a proposition. Whether Sarah Lang would have been barred by limitation against suing out a writ of error before 1861, is unnecessary to inquire. From that time forth, on the authority of previous decisions of this court, the statute would clearly have run against her. But this, even, is scarcely a pertinent question, for no writ of error has ever been sued out, or is proposed to be sued out, to review the partition proceedings.

The claim that there was fraud is not sustained, either by allegations or proofs. Every one is charged with knowing all the steps taken in a case or proceeding which he or she, either singly, or jointly with others, commences. Undoubtedly it might be shown a party’s name was used without his or her knowledge or authority; but that is not charged here, nor are any specific fraudulent acts charged whereby the said Sarah was authorized to use less than ordinary caution for the protection of her rights.

It may be, in some respects, the case is a hard one upon the rights of appellant; but it must also be borne in mind other rights, besides hers, are involved. For thirty years Patrick Lang was suffered to be held out to the world, by the decree of a court of competent jurisdiction, as the owner of this property, and upon the faith of that, it is but reasonable to presume, he obtained a credit which he would not otherwise have had. There was a remedy for appellant, but it was never sought, and the time to resort to it has long since passed by.

The decree is affirmed.

Decree affirmed.


author: Mr. Justice Scott

text:
    Milton M. Ford v. Richard Marcall.

      Filed at Ottawa June 16, 1883

    1. Judgment lien—how created, after failure to sue out execution within a yew. A judgment ceases to be a lien on real estate if execution is' not issued tbereon within one year from its date, in which case the execution may be sued out within seven years from the date of the judgment, and it then becomes a lien on the real estate of the debtor from its delivery to the sheriff or other proper officer; but if he has conveyed the same, and his deed is recorded before.such execution is placed in the hands of the officer, no lien will attach, and no title will pass by a levy and sale.
    2. Notice by possession—possession by a grantor, as notice of his equitable rights. Where A, the owner of land, conveyed the same to B, without any consideration, to be held in trust, and B conveyed the same in like manner to C, merely to enable him to sell for the benefit of A, who remained all the time in the actual possession of the premises, it was held, that the possession of A was notice to a judgment creditor of C of A’s equitable title, and that such creditor having such notice acquired no title by a levy and sale of the premises on execution against C, he not being an innocent purchaser entitled to the protection of the law.
    Appeal from the Circuit Court of Henry county; the Hon. John J. Glenn, Judge, presiding.
    Mr. H. Bigelow, for the appellant:
    This case presents the question, whether, in the absence of any fraud, the retention of possession of real estate by a grantor is sufficient, of itself, to overcome the Statute of Frauds relating-to the creation of trusts. Bev. Stat. 1845, chap, 44, sec. 4; Bev. Stat. 1874, chap. 58, sec. 9.
    In this case appellee’s grantor did no affirmative act whatever to evidence a trust, even if it be conceded that the requirements of the statute could be obviated in that way, (a principle never held by any court, that I am aware of.) She simply omitted to do what the law required of her, viz., to surrender possession to her first grantee, Susan A. Bonham, or to Susan’s grantee, Robinson, and this omission is made the basis of a decree in favor of her subsequent grantee, but it is not. sufficient to sustain it. Perry v. McHenry, 13 Ill. 227.
    The Statute of Frauds is the plain law of the land, necessary for the protection of property and the prevention of perjury, and it is the duty of the courts to enforce it, notwithstanding it may work occasional hardship. Hite v. Wells, 17 Ill. 88.
    No parol agreement made at the time of or subsequent to a conveyance, will, in the absence of fraud, take a case out of the statute. Rogers v. Simmons, 55 Ill. 76; Walter v. Klock, id. 362.
    It is not pretended that the alleged trust is a resulting trust, or one created “by construction, implication or operation of law, ” hence it must be, as the court below found it, an express trust, and so clearly within the statute. Lantry et al. v. Lantry, 51 Ill. 458.
    Mr. C. C. Wilson, for the appellee:
    Actual possession charges purchasers with notice of the rights of the person in possession. Davidson v. Porter, 57 Ill. 300; Riggs v. Henneberry, 58 id. 134; Illinois Central R. R. Co. v. McCullough, 59 id. 166; Flint v. Lewis, 61 id. 299; Smith v. Heirs of Jackson, 76 id. 254; Strong et al. v. Shea et al. 83 id. 578.
    Actual occupancy of premises is notice equal to the record of a deed. Coari v. Olsen, 91 Ill. 273.
    When the grantor of real estate remains in possession, all persons acquiring title from the grantee are chargeable with notice of all the claims of the grantor. White et al. v. White et al. 89 Ill. 460.
    The rule of caveat emptor applies to the sale of lands and all judicial sales. England, v. Clark, 4 Scam. 486; Walbridge v. Day et al. 31 Ill. 380.

      George Robinson was simply the agent of Elizabeth Bonham to sell the land for her, and the appellant had full notice of that fact, and therefore had no right to levy on and sell said land to pay the debt of such agent. Trustees of Schools v. McCormack Bros, 41 Ill. 323.
   Mr. Justice Scott

delivered the opinion of the Court:

Both parties claim the title to the land in controversy that was in Elizabeth Bonham. Complainant, Richard Marcall, deraigns the title he insists is paramount, directly from her through certain mesne conveyances, and defendant, Milton M. Ford, claims title by virtue of an execution sale of the land as the property of George Robinson, in whom he alleges the title was by virtue of mesne conveyances from the original owner. This bill was brought to set aside the sheriff’s deed as a cloud upon complainant’s title. The circuit court decreed relief according to the prayer of the bill, and defendant brings the case to this court on appeal.

The only evidence contained in the record is that recited in the decree of the court, from which it áppears that on the 10th day of December, 1872, Elizabeth Bonham conveyed the land to Susan A. Bonham, and on the 1st day of October, 1873, Susan A. Bonham conveyed the same land to George Robinson. Both deeds were made without consideration, and were simply intended to place the title in the grantees for the purpose of sale, for the accommodation of the grantor. Neither grantee ever claimed more than to hold the legal title in trust for the grantor, and to be reeonveyed to her at any time, bn request.' The grantor all the time retained the possession of the land. Afterwards, Robinson conveyed the property, to Hamlet G. Bonham. This deed is dated February 21, 1874. Hamlet G. Bonham then made a declaration of trust, dated March 26, 1875, stating on what terms he held the title for Elizabeth Bonham. That declaration of trust was recorded in the recorder’s office in the county where the land is situated. On the 11th day of February, 1874, Swan Swanson and Christian Johnson, administrators, recovered a judgment against George Robinson. It is under a sheriff’s sale on an execution issued on that judgment that defendant claims the land that is the subject of this litigation. It does not appear when the sheriff’s sale was in fact made, but the sheriff’s deed bears date March 2, 1878. Defendant, however, states, in his answer, execution issued on the judgment July 29, 1876; that on the 31st of August, thereafter, the sheriff levied it on the land in question, and on the 25th of November, of the same year, sold it to defendant for $350. 1

There is a technical ground on which the decree of the circuit court may be affirmed. It does not appear, from any evidence in the record, that any execution was issued on the judgment under which the land was^ sold, within one year from the time it is alleged the judgment became a lien on the land in the hands of Robinson. The statute declares,' “when an execution is not issued oh a judgment within one year from the time the same. became a lien, it shall thereafter cease to be a lien, but execution may issue on such judgment at any time within seven years, and shall become a lien on such real estate from the time it shall be delivered to the sheriff or other proper officer to be executed.” It will be observed that Robinson conveyed the property to Hamlet G. Bonham on the 21st day of February, 1874, and that was ten days after it was claimed the judgment became a lien on it. As before remarked, it does not appear from any evidence when the first execution was issued on the judgment, but if defendant’s answer may be taken as evidence against him, no mention is made of any execution as having been issued on the judgment until July 29,1876. That was more than a year after Robinson had conveyed the land to Hamlet G. Bonham, and more than a year after it is alleged it became a lien on the property in the hands of Eohinson, and hence the judgment had.ceased to be a lien, and the subsequent sale passed noTitle to the purchaser at the execution sale, as against the subsequent grantee.

There is another ground upon which the decree may be affirmed, which is, perhaps, more satisfactory. The law is, as this court has declared in White v. White, 89 Ill. 460, that when the grantor of real estate remains in possession, all persons acquiring title from the grantee are chargeable with notice of all the claims of the grantor. In this case it appears, from the evidence preserved in the decree, that Elizabeth Bonham and complainant have been in the full, complete, open and notorious possession of the premises, by themselves and tenants, cultivating and occupying the same since before the making of the deed to Susan A. Bonham. That was notice to defendant, before he purchased the land at execution sale, of the equitable rights of the parties in-possession. Besides that, he was notified, long before the sheriff’s sale, that Eobinson had not then, and never had, any interest in the land, and that he only held the legal title for the benefit of Elizabeth Bonham, the real owner. Defendant is in no sense an innocent purchaser,—certainly not in that sense that he can claim the protection of the law. The doctrine of express trust insisted upon has no application to the facts of this case, and need not be discussed.

The decree of the circuit court will be affirmed.

Decree affirmed.


text:
    Henry Brand et al. v. William F. Henderson et al.

      Filed at Springfield June 14, 1883.

    1. Evidence in explanation of contract—prior conversations, etc.,— as, in case of an alleged gambling contract. In an action to recover the price of wheat bought by the plaintiff, as factor, for the defendant, for future delivery, where the defence was that the transaction was a gambling contract, no delivery being intended, but only an adjustment of differences in price, it was held, error to refuse to let the defendant testify as to conversations had by him with the plaintiff before the orders for the purchases were actually given, as throwing light upon the nature of the contract, it not being the last words spoken that in all cases give character to the transaction.
    2. A verbal contract may be explained by facts, circumstances or conversations which shed light upon the meaning of its words. In such case it is proper to ascertain such extrinsic facts as the parties may have had in view at the time the contract was made, in order to obtain the true meaning of its words.
    3. So where a defendant in such case had given his broker an order to buy for him a lot of grain for future delivery, to be purchased on the board of trade, the transaction being alleged to be a gambling contract, it was held, to be error to refuse to let the defendant, when sued on his alleged purchase, answer the question as to what was said at the time the order was given about how the deal was to be settled.
    4. Principad and agent—liability of the former to the latter on purchases made—as, in case of a commission merchant buying grain for another. Where an agent or commission merchant purchases grain for his principal on his order to do so, he can only recover of the latter his commissions, unless he has actually paid for the grain, or the loss legally sustained by the seller, in which event he may also recover what he has thus been required to pay. It is not sufficient that the agent purchasing may be legally liable, but he must have sustained damage by actual payment.
    5. Pdeading and evidence—recovery under the common counts. No recovery can be had upon an executory contract under the common counts. Where goods sold have not been delivered and accepted, no recovery can be had for the price, even under the count for goods bargained and sold, unless it appears there has been a complete sale, and the property in the goods had been vested in the defendant by the sale, and an actual acceptance by him.

      6. It is only when the contract has been fully performed, and nothing remains to be done but the payment of the money, that the common counts are applicable. If the purchaser refuses to accept the goods when tendered, or offered to be delivered, the contract must be specially set out in the declaration.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Vermilion county; the Hon. J. W. Wilkin, Judge, presiding.
    Mr. F. Bookwalter, and Mr. J. W. Jones, for the appellants.
    Messrs. Mann, Calhoun & Frazier, for the appellees.
   Mr. Justice Dickey

delivered the opinion of the Court:

W. F. Henderson & Co. were grain factors, residing at Danville, in this State. They ostensibly bought and sold grain on the board of trade at Toledo, and for parties residing at Danville and vicinity. They dealt through other factors, or commission men, in Toledo, who were members of that board. In the latter part of November, and early part of December, 1880, they received orders from Brand & Head, the defendants, to buy for them 20,000 bushels of No. 2 red wheat, to be delivered to them at Toledo, at any time during the month of January following, and immediately gave orders to their correspondents at Toledo to buy accordingly. There is evidence in this record tending to show that at the time this wheat "was ordered it was understood by Brand & Head that the wheat was never to be delivered to them, but that the difference between the market price at Toledo at the time of such contract of jrarchase, and the market price at the time limited in January, was only to be settled and paid by the one to the other, as the profit or loss should be,—and there is some evidence tending to show that Henderson & Co. so understood the proposed transactions when they received the orders of their principals, and there are proofs strongly contradicting this latter proposition. Wheat of that grade declined, so that in January the price was less .than the market price when the orders were given. By arrangement between the j)arties on December 9, 1880, after the orders to buy were given, it was agreed in writing that the wheat should not be delivered, but that the loss on the deal should be paid to Henderson & Co. on January 31, 1881, together with one-half cent per bushel for commissions.

The matter ran along, and Brand & Head finally refused to settle the losses. Thereupon, Henderson & Co. made arrangements in Toledo with their correspondents to draw upon them for the sum of $21,000, and to send the draft, with warehouse receipts attached for 20,000'bushels, to the First National Bank at Danville, with directions to deliver the receipts upon payment of the draft. Henderson & Co. not having the money, made arrangements with the bank to loan them the warehouse receipts, upon giving indemnity to the bank for their return if they did not procure the money therefor. Thereupon they took the warehouse receipts so loaned to them and tendered them to Brand & Head, the defendants, and demanded the payment therefor of the sum of $21,000. Brand & Head refused to accept the same, or to pay therefor. Henderson &.Co. then returned the receipts to the First National Bank, and the same were returned to the bank in Toledo.

There is evidence tending to show that the warehouse receipts were borrowed for the purpose, of the bank in Toledo, and that thus even the commission men in Toledo did not own them. There is no proof that Henderson & Co. ever owned these warehouse receipts, other than the fact of borrowing the same, nor is there any evidence tending to show that any wheat was ever, in any other way, delivered to them, or that any wheat or warehouse receipts were ever paid for by them in fulfillment of this contract, or by reason thereof. There is no evidence tending to show that Henderson & Co. ever paid anything to any one on account of such supposed contract of purchase, or that they ever, lost anything by reason thereof, in any mode whatever. .

This is an action in assumpsit'by Henderson & Co. against Brand & Head. They filed a declaration containing only the common counts. The defendants pleaded the general issue, and gave notice thereunder that they would give in evidence, and insist upon the trial, that the supposed cause of action against them was for losses incurred in dealings in options ; that the intention and understanding of both parties, plaintiff and defendant, was that no wheat, in fact, was to be delivered, and that differences in the rise and fall in the market were to be settled and paid, the one to the other, as the ease might be, and that such contract was a gambling contract, and in violation of the statute, and was void. On trial of this issue the verdict was for plaintiffs for $1365, and judgment was entered upon the verdict. That judgment was affirmed in the Appellate Court, and defendants appeal to this court.

We have no power on this appeal to review the findings of fact, but in order to decide the questions of law presented to us, it is necessary that we should look into the issues, and also the evidence, so far as to ascertain what it tends to prove.

We think it was error to refuse to let the defendants testify as to conversations held between the defendants and plaintiffs before the orders in question were actually given, which may have led up to these orders, and which may have shed light upon the character of the transactions. The plaintiffs testified that one of the defendants came in and said: “Buy for me 10,000 bushels more January wheat.” It would seem that some previous understanding was had between the parties in regard to such transactions. It was certainly permissible to prove any previous conversations tending to explain what was meant by such order. “The affairs of men consist of a complication of circumstances so intimately interwoven as. to be hardly separable from each other. Each owes its birth to some preceding circumstance, and in its turn becomes the prolific parent of others, and each, during its existence, has its inseparable attributes, and its kindred facts materially affecting its character, and essential to be known in order to a right understanding of its nature. These surrounding circumstances constituting part of the res gestae, may always be shown to a jury along with the principal fact.” (1 Green-leaf’s Evidence, sec. 108.) It is not alone the last words spoken or written that in all cases give character to a transaction. A promissory note containing usurious interest, or made upon a fraudulent consideration, or for a gambling debt, may be explained, or even contradicted, by showing previous facts out of which it grew. (Hewitt v. Dement, 57 Ill. 500; 1 Greenleaf’s Evidence, see. 284, and note.) Why, then, may not a verbal contract, alleged to be a gambling contract, be explained by facts, circumstances or conversations, which shed light upon the meaning of its words ? It is, in such case, proper to ascertain such extrinsic facts as the parties may have had in view at the time the order for the contract was made, in order to obtain the true meaning of its words. (Doyle v. Teas, 4 Scam. 202.) It is clear that the court erred in refusing to let one of the defendants answer the question as to what was said at the time the order was given about how the deal was to be settled.

But the error that goes to the basis of the action is that involved in the first instruction given for the plaintiff. It is as follows:

“If the plaintiffs, at the request of the defendants, or either of them, bought for defendants, in Toledo, 20,000 bushels of wheat at the then market price, to be actually delivered in January, 1881, at Toledo, Ohio, and became responsible to the seller for the same, and in January, 1881, were ready to deliver the wheat; or if the defendants, or either of them, requested said plaintiffs to carry said wheat beyond January, and plaintiffs did so, and afterwards, in March, tendered to defendants, or either of them, warehouse receipts of Toledo warehouses for 20,000 bushels of wheat of the same quality so ordered bought by the defendants, and defendants refused to accept said receipts, on the ground they did not mean to pay for the wheat, then the plaintiffs are entitled to recover of the defendants the difference between the price fit which said wheat was bought and the market price in Toledo of the wheat on the day it was so tendered. ”

The instruction rests on the hypothesis that plaintiffs were acting as the agents of defendants. The record fully sustains the assumption of this hypothesis. The jury are told that if the plaintiffs bought as such agents, and became responsible to the seller for the price of the wheat, plaintiffs, without proving that they ever paid one cent for the same, might recover the difference between the purchase price and the market price on the day of tender. Such is not the law. All that the agent is entitled to recover is his commissions, unless he shall receive an actual damage by the default of the principal. If the agent not only .became legally liable, but actually paid for the wheat so purchased by him, or at least paid for 'the loss legally incurred by the seller, then he may recover of his principal such amount. The agent can not make a profit out of his principal. He can recover nothing but' his commissions until he has paid something.

The plaintiffs, under this instruction, need not show that they have lost a dime under this contract. Why, then, should they recover this-large sum? All'know that it is a fundamental rule that a party can not recover more than a compensation equal to his loss by any injury he may have sustained, except where punitive damages are permitted. The plaintiffs may, upon the hypothesis assumed, have a compílete defence to any action by tbe seller. If judgment were obtained against tbe plaintiffs by tbe seller, they may never piay it. They must first pay, as a guarantor of a note must first pay before be bas. a cause of action against bis principal. Should defendants pay this judgment, and tbe plaintiffs fail to pay tbe seller of tbe wheat at Toledo, tbe seller may choose to sue and collect bis damages of these defendants, who are tbe principals, and these defendants would then ptay the claim twice, if tbis judgment should stand and be enforced.

. A recovery on tbe case stated in the instruction was not admissible under tbe common counts. Tbe contract between tbe plaintiffs and defendants was never pierformed. It was entirely executory. Tbe title to tbe wheat never vested in the defendants. In tbe case stated in tbe instruction no money was paid out by ptlaintiffs for use of defendants. There is no count for .goods bargained, sold, and offered, but not received. For such a cause of action tbe count must be special. “If there bas been no delivery of tbe goods, even tbe count for goods bargained and sold, (not showing a delivery,) can not be maintained, unless it appears that there bas been a complete sale, and tbe property in the goods bad become vested in tbe defendant by such sale, and an actual acceptance of tbe commodity by tbe defendant. ” (1 Chitty’s Pleading, 347; Seckel v. Scott, 66 Ill. 106.) A tender of goods, or offer to deliver tbe same, is not sufficient, under such circumstances. Tbe contract must be specially set out, and tbe damages can not be recovered under tbe common counts. (Outwater v. Dodge, 7 Conn. 87.) Where suit is for tbe recovery of damages for breach of contract, the count must be special. If be recovers, it is for tbe damages be has sustained by tbe breach of tbe contract. (Burnham v. Roberts, 70 Ill. 24.) It is only where the contract bas been fully performed, and nothing remains to be done but the ptayment of tbe money, that tbe common counts are applicable. (Throop v. Sherwood, 4 Gilm. 92.) “In such a case as this the declaration should be framed specially on a contract for not accepting the goods, or for refusing to complete the bargain. ” 1 Chitty’s Pleading, *347, note.

Por these reasons the judgment of the Appellate Court will be reversed, and the cause remanded for further proceedings consistent with this opinion. ¿

Judgment revefsed.


text:
    D. W. Norris v. Nelson Rogers.

      Filed at Ottawa June 16, 1883.

      Pabtnebship—contract construed as to rights of parties on dissolution. A and B entered into a eo-partnership, the former to furnish $1000, and the latter, as his capital, his patent for the manufacture and sale of “incased glass vessels, ” the articles of co-partnership providing that the profits of the business, and the proceeds arising from either the sale or leasing of any territory, should be equally divided between them, either one of the partners having the right to sell or lease, and that the partnership might be dissolved by either, on giving notice thereof, at any time. The contract also provided that a division of the assets should be had in case of a dissolution “without a sale of the business, ” in which event each partner was to take back what he put into the business. Prior to the dissolution of the firm and notice .thereof, B, the patentee, granted to 0 the exclusive right to manufacture and sell wares under the patent, and all re-issues of the same, for the entire term it might run, reserving a .certain royalty or license fee on all wares manufactured and sold by 0: Held, that as the transfer of the exclusive right under the patent to 0 was the same as a sale, and was made prior to the dissolution, A was entitled to one-half of the royalty or license fees thereafter to be paid by 0 to B, and that if it was a mere leasing to 0 the same result would follow.
    Appeal from the Appellate Court for the Second District; —heard in that court on writ of error to the Circuit Court of -Kane county; 'the Hon. Chables Kellum, Judge, presiding.

      Mr. L. Hill, and Mr. Adlai T. Ewing, for the appellant.
    Mr. Frank Crosby, and Mr. J. W. Ranstead, for the appellee.
   Mr. Justice Scott

delivered the opinion of the Court:

Complainant, Nelson Rogers, by his bill represents that on the 13th day of October, 1S77, a co-partnership was formed between himself and defendant, D. W. Norris, for the purpose of manufacturing and selling “incased glass vessels, ” covered by letters patent issued to defendant, and selling territorial rights under such letters, and for doing such other acts as might be necessary for the successful prosecution of such business, to which partnership complainant was to, and did, furnish as his share of the capital, $1000, and defendant furnished as his share of the capital, the use of the letters patent so issued to him. The partnership contract was reduced to writing, and signed by the respective parties. Afterwards, on the 6th day of June, 1879, explanatory or supplementary articles of co-partnership were entered into, and signed by the partners. The agreement, and the partnership formed by it, were to continue so long as the same should be mutually desirable. Some business was done by the firm, but the extent and hind is not set forth in the bill. Barring the single transaction out of which this litigation springs, in regard to the business transacted by the firm there is now no contention between the partners. During the existence of the firm, a one-fourth interest in the patent was sold to Mr. Burgess, and afterwards, on the 23d day of June, 1879, Norris and Burgess, jointly, sold to the firm of Riessner & Co., the exclusive right to manufacture and sell wares under the letters patent, and the re-issues thereof, named and provided for in the original and supplementary agreements, in consideration of which grant Riessner & Co. agreed to pay Norris, or his legal representatives, certain licenses, fees, or royalties, upon all “incased glass vessels” manufactured and sold by them under the patent. The assignees, or grantees, or licensees, whatever they may be called, of the patent, were to make reports of the goods manufactured by them under the • letters patent, at the end of every quarter, on and after the 1st day of September, 1879, and to make payment for vessels manufactured in any month on the first day of the next succeeding month. Under/ this contract the grantees or licensees began to manufacture and sell the particular wares covered by the patent, and paid Norris the royalties for vessels manufactured in August and September, 1879, one-fourth of which Norris says he received for and paid to Burgess, and the other three-fourths he received for the use of the firm of Norris & Bogers, up to the date of its dissolution. Under the articles of co-partnership, Norris claimed the right to and did-give notice of the dissolution of the firm, to take place on the 11th day of September, 1879, and thereafter denied the right of complainant to participate in or receive any portion of the royalties to become due from Biessner & Co., under the contract of June 23, 1879. Thereupon complainant filed this bill to obtain an accounting of the royalties received by.Norris from Biessner & Co. under his contract with them, and to determine his interest in that contract, and for a decree that three-eighths of all future royalties to accrue thereunder shall be paid directly to him. On the hearing of the cause the court adjusted the equities between the partners, and decreed that complainant, under the partnership agreement, was entitled to an interest equal to three-eighths of the whole amount of royalties to accrue under the contract with Biessner & Co. That decree was affirmed, on defendant’s appeal, in the Appellate Court, and defendant brings the case to this court on his further appeal.

It will be seen, on examination, that by the express terms of the original contract either party to it could terminate the partnership whenever he chose to do so. ' Accordingly defendant elected to declare a dissolution of the firm on the'11th day of September, 1879, and gave notice to that effect. The only question for decision is, what is the interest of each partner in the contract with Riessner & Co. since the dissolution of the firm. There is now no other matter in dispute. Of course the rights of the partners depend on the construction that shall be given to the original and supplementary agreements. The profits of the business, by the provisions of the second paragraph of the original agreement, were to be equally divided between the partners. The fifth paragraph of the contract declares the proceeds of any territory under the patent that may be either sold or leased by the firm, shall be divided in the same manner as gains from the business of the firm,—that is, equally. It will be observed these provisions of the original contract are in no manner changed by anything contained in the supplementary contract. The meaning of the second and fifth paragraphs would seem to be so obvious as to require no construction. Indeed, no construction could make their meaning clearer. The profits arising from the business, and the proceeds realized from the sale or leasing of any territory under the patent, were all to be divided equally between the partners. That was the understanding the parties themselves had of the contract, for when a fourth interest in the patent was sold by the firm to Burgess, the proceeds were equally divided, as other gains from the business were divided. In this respect there is no ambiguity in the agreement. Whatever difficulty there is in the ease arises on the seventh paragraph of the original, and the third and fourth paragraphs of the supplementary, contracts, which were obviously intended to fix the rights of the partners in case of a dissolution of the firm. These several paragraphs must be read together, to ascertain their meaning. By the seventh paragraph of the original contract provision is made for a division of the assets of the firm, in case a dissolution “takes place, without a sale of the business.” In that-event the capital in the business was to be divided, and each part assigned to the partner by whom it was furnished. That would give back to complainant, in ease of a dissolution, his money advanced to the firm, and in case no sale had been made-defendant would receive back-his patent. It is quite evident the supplementary agreement was entered into with a view to obviate all difficulties that might arise on a dissolution of the firm after a sale of the patent, or any interest in it, or of a leasing of a part or of the whole of it, otherwise there was no necessity for the latter paragraph it contains. It will be observed the third clause of the supplementary agreement is mainly explanatory of the seventh clause of the original contract. Most important is the provision as to the terms on which defendant shall have the privilege of taking back any interest in the patent that may remain at the dissolution of the firm. But that clause can have no application to the ease as now presented. It will be noted nothing remained of the patent at the dissolution of the co-partnership on the 11th of September, 1879. Prior to that date defendant had granted to Riessner & Co. the exclusive right to manufacture and sell wares under the patent, and all re-issues of the same, for the entire period the same might run. That was equivalent to a sale or an assignment of the patent itself. Had defendant conveyed his interest in the patent by deed, in the usual form, to Riessner & Co., it would not have more effectually deprived him of the use of it. Thereafter the right of the grantees was exclusive to the use of the patent, and a deed from the patentee would not have conveyed any greater interest. It must, therefore, follow, that on a dissolution of the co-partnership the interests of the partners must be adjusted as in case there had been a sale by the firm of the remaining interest in the patent, and that could be done no otherwise than under the fourth clause of the supplementary agreement. That clause, it will be observed, forbids defendant to declare a dissolution of the co-partnership pending negotiations for the sale of any interest in the patent. It is immaterial by whom or which partner the sale or negotiations, might be effected. The only limitation was, the sale should be subject to the approval of defendant. It was agreed, “if negotiations be completed with any other party, whereby any fixed and definite amount of money or other property shall become due said firm, as royalties or otherwise, at any fixed and definite future time, nothing herein contained shall be construed as in any way depriving said Rogers of his full share, as herein provided for, of such amount. ” Negotiations had been, shortly prior to notice of the dissolution of the firm, concluded with Riessner & Co. to sell to them the exclusive right to manufacture and sell wares under the patent so long as it, or any re-issues of it, should run, for certain royalties, to be paid at a “fixed and definite future time. ” Treating the sale of the exclusive right to manufacture and sell wares under the patent for the entire period it had to run as tantamount to a sale of the patent itself, that which was done comes within the agreement of the parties, and must he controlled by it. But if it was no more than a leasing of the patent for the period it had to run, that also comes within the provisions of the fifth clause of the original contract, and the proceeds to be derived therefrom should be divided equally. Whether the contract with Riessner & Co. be called a sale or a leasing of the patent, in either, event the right of the patentee to its further use was parted with forever. It was either a sale or leasing of the patent, and no reason is perceived why complainant is not entitled to share in the royalties to be received from the grantee or lessee of the patent. That is the plain meaning of the agreement of the parties, and as the decree of the circuit court does nothing more than give complainant the benefit of his contract with defendant, the judgment of the Appellate Court must be affirmed.

Judgment affirmed.