author: Mr. Justice Baker

text:
    Charles B. Phillips v. James K. Edsall et al.

      Filed at Ottawa April 3, 1889.

    1. CHANCERY—jurisdiction—to enforce equitable lien upon a fund— as, in case of the assignment of the proceeds of a prospective judgment.' A person employed attorneys to attend to certain suits, and gave his notes to them for their fees, as agreed upon, and to secure the payment. of such notes, by his written contract assigned to the attorneys such portion of tile amount that should be found due the client in a certain cause then pending, as might be sufficient to pay the notes, and authorized such attorneys to receive and receipt for the same. Judgment was recovered in the case in respect to which the assignment was made, and the money paid into court, whereupon the attorneys filed their intervening petition in that case, setting up their right to have their notes paid out of the fund: Held, that a court of equity had jurisdiction to entertain the petition and to enforce the assignment, a trust being involved.
    2. Where a client makes a written assignment of a part of his claim then in litigation, to his attorneys, sufficient to pay his obligation to them for fees in that and other cases, the attorneys may, either before or after the decree in the pending case in which the assignment is made, and before the maturity of the notes, file their supplemental bill in the cause, and have their assignment protected and enforced by the court, and have a decree entered preserving their equitable lien upon the fund when recovered and paid into court. In such case, the attorneys, as such assignees, have no remedy at law to enforce the assignment, and the jurisdiction of a court of chancery is unquestionable.
    3. The exhibiting of a bill or petition is proper at any time after the assignment, in order to give the court notice of the rights of- the assignee in a fund which is the subject of pending litigation.
    4. Same—assignment of part of a debt—creates an equitable lien enforceable only in equity. A part of a debt or chose in action is not assignable at law, but can be enforced in equity; and in such case, a trust will be created in favor of the equitable assignee on the fund, and will constitute an equitable lien upon it.
    5. Cboss-bhiTi—right of complainant therein to a continuance of the original bill. The filing of a cross-bill does not necessarily stay the hearing upon the original bill, and when there has been a want of diligence on the part of a defendant, and the original bill is ready for hearing, he can not interpose a cross-bill, and insist, as a matter of right, upon the postponement of the hearing on the original bill.
    6. On January 16, 1885, an original bill or intervening petition was filed in a cause, to which an answer was not filed until May 10, 1887, though the defendant was ruled to answer by October 19,1885. The cause, on May 13, 1887, was referred to the master, to take and report the evidence, with his conclusions, and the master, on June 28,1887, made his report, to which the defendant filed exceptions on July 6, 1887. On July 12,1887, the defendant, by leave of court, filed a cross-bill, seeking to make a new party defendant. The matters alleged in the cross-bill were mostly those set up in the answer, and the new matters therein alleged were known to the defendant when he filed his answer: Held, no error in refusing defendant’s motion to postpone the hearing of the original bill until the hearing was ready on the cross-bill.
    7. Trial by jury—in chancery — how far discretionary with the chancellor—and when the verdict is merely advisory. In cases properly cognizable in equity, under any one of the original heads of chancery jurisdiction, it is entirely discretionary with the court whether it will or will not submit any issue or issues of fact to a jury, and when such submission is made, the verdict is simply advisory, and may be disregarded by the court.
    8. A motion for a jury trial in a case in equity was not made until some two weeks after a reference to the master, and after a considerable portion of the testimony had been taken, and was not for the submission of any particular issue or issues, but for a trial by jury of all the issues of fact made by the pleadings. The court refused the same: Held, that the action of the court was eminently proper.
    9. Continuance—on account of amendment to Hill in chancery. After t^ie filing of a cross-bill, and on the hearing, the complainant in the original bill amended his bill in two unimportant respects, setting up a fact which had been proved by'the defendant, and another shown by the record before the court, and which did not make it necessary for the defendant to file a new answer or cross-bill, and no leave was asked by him to file new or amended pleadings: Held, that this did not make a prior refusal to postpone the hearing till the cross-bill was ready for hearing, erroneous.
    10. Attorney and client—rights of the latter under retainer of a firm. Where a firm of three attorneys enter into a written contract of retainer in a number of cases, and therein agree to act as attorneys and counsel for the client, and generally to do all things deemed necessary in the due course of proceedings to faithfully represent and defend his interests in such cases, according to their best judgment and ability, in connection with such other attorneys as may be employed, the client will be entitled to the services of all three of the partners in each one of the suits.
    11. The spirit of such a contract, however, does not require that each one of the attorneys shall be present in court when each and every step is taken in each and every one of the several causes, unless, in their best judgment, such presence is necessary or advisable.
    12. In such case, when all three of the attorneys act together, and two of them, after consultation with the third, in regard to the case, attend the trial, and no complaint is made at the time that the three do not all participate in the trial, they may recover the fee agreed to be paid. It is different when one of them abandons the case.
    13. Same—attorney prevented from acting Hy his client. A client who objects to his attorney preparing a bill of exceptions in a case, and insists it shall be prepared by another attorney, who fails to get the same signed and sealed, will, in-equity, be estopped from complaining that the first named attorney failed to take such bill of exceptions, and he may recover the compensation agreed to be paid him.
    14. Interest—whether allowable—and from what time—under a special contract. Certain park commissioners took possession of a tract of land in August, 1870, not tortiously or under the law of eminent domain, but under a contract of purchase with the owner. By the terms of the contract the purchase money would not become due until the purchaser’s title was freed from all adverse claims, and established, which was not done until in 1882, when the court in which a suit was pending for the settlement of the title, allowed the owner interest for eleven or twelve years before the money became due under his contract. It was held, that he had no. cause of complaint against his attorney procuring a decree for the payment of the purchase money because he failed to have the decree find a gross sum for both the principal and interest, so that the interest might bear interest after the date of the decree.
    15. On the 12th day of June, 1884, the owner of a tract of land the title to which was in litigation, and pending a suit to enforce the specific performance of a sale thereof to park commissioners, gave his two notes, of $2500 each, payable to his attorneys for their legal services, one on or before one year after date, and the other on or before two years after its date. By a written contract of the parties, an assignment was made by the client to his attorneys of so much of his purchase money as might be necessary to pay the notes, in which contract it was provided that the notes should, in any event, become due and payable as soon as the amount to be paid for the land by the park commissioners should be ascertained and determined. The decree fixing the amount to .be . paid for the land was made January 9,1883, and fully settled the rights of the parties thereto, but the money was not paid into court by the park commissioners until April 23, 1887: Held, that the notes became due January 9,1885, at the date of the decree, and drew interest from that date, and not from the time the money was paid under the decree.
    16. Decree—certainty as to amount to be paid. A decree for the payment .of money should, according to the better practice, state in words and figures the amount of principal and interest. But -when the decree finds all the necessary data, so that the exact sum due is only a matter of computation, with only one result, it will.be sufficiently definite and certain. That is sufficiently certain which can be made certain.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.

      Mr. John Gibbons, for the appellant:
    By the contract betweén the parties, the security depends upon the performance of the agreement by Bdsall, Hawley & Bdsall, and the notes are to be due “as soon as” the amount to be paid for the land shall be ascertained and determined. The question is, are the words, “as soon as,” equivalent to the word “when,” so as, under all the circumstances, to protect both parties,—anticipating, “if ascertained and determined” before they fell due; postponing, if after they fell due.
    It was the duty of the intervenors, as the attorneys of Phillips, to have had “ascertained and determined,” by the court, just the amount to be paid to Phillips. By failing to do so, Phillips lost the accruing interest on about $34,000, up to April 23, 1887, amounting to about $5000. That in such a decree the amount is not “ascertained and determined,” see Smith v. Trimble, 27 Ill. 152; Boston v. Nichols, 47 id. 353; Wilhite v. Pearce, id. 413; Stevens v. Coffeen, 39 id. 148; Barstow v. McLachlan, 5 Bradw. 96.
    One year before the testimony was heard in this case, Hawley, one of the firm, had removed from the State, and was residing in Nebraska, thus practically abandoning the suits not tried. Appellant was entitled to the services of each one of appellees and Mr. Hawley. Morgan v. Roberts, 38 Ill. 65; Cornelius v. Wash, Breese, (new ed.) 98; Walker v. Goodrich, 16 Ill. 341; Smyth v. Harvie, 31 id. 62.
    As respects the lien of attorneys, see Humphrey v. Browning, 46 Ill. 476; Forsythe v. Beveridge, 52 id. 268.
    The court erred in setting aside $6000 for the attorneys, and in denying appellant’s motion to submit the case to a jury. Gage v. Ewing, 107 Ill. 11; Smith v. Goode, 29 Ga. 185; Striker’s case, 1 Bland’s Ch. 57; Pugh v. Dorsey, 8 S. & M. 379; Lynch v. Willard, 6 Johns. Ch. 342.

      Messrs. Edsall & Edsall, pro se :

    The assignment of a part of a fund due the assignor from his debtor can not be enforced at law, (Chapman v. Shattuck, 3 Gilm. 49,) but such an assignment of a part of a debt or chose in action may be enforced in equity. 1 Daniell’s Neg. Inst, p. 20, see. 23 ; 2 Story’s Eq. Jur. sec. 1044; Pomeroy v. Life Ins. Co. 40 Ill. 398; Exchange Bank v. McLoon, 73 Me. 498; Wellsburg Bank v. Kimberlands, 61 W. Va. 555.
    It was an assignment of part of the subject of the pending suit, and therefore the rights of the assignees were properly presented by a supplemental bill. Such a bill may be filed either before dr after the decree in the principal case. Story’s Eq. PI. sec. 338.
    The. decree finally determines the rights of the parties. While the decree does no,t in terms state the net result of the computation of the interest, it finds all the data from which the result may be found, by a mere computation of the interest as therein directed. That is sufficiently certain which can be made certain. Broom’s Legal Maxims, 599.
    By the contract of June 12, Í884, appellees acquired an interest in, and a lien upon, the fund which was the subject of litigation in that case, and which, on a presentation of the facts, it would be proper for the court having jurisdiction of the res, to recognize and protect, whether Phillips’ notes held by appellees had become due or not. Such notes, by the terms of the contract, would, in any event, become due as soon as the amount the South Park Commissioners were to pay for the land was determined. Had the appellees seen fit to do so, it would have been proper to file their supplemental bill, showing that Phillips had assigned to them a part of the fund involved in the suit of South Park Commissioners v. Phillips, immediately after the date of the contract, and before the decree therein of January 9,1885. In such case, the assignee or “alienee might himself file a suppldmental bill, against the original plaintiff and other parties to the suit, to have the benefit of the proceeding.” See 2 Daniell’s Ch. Pr. (4th ed.) p. 1516.
    Where a third party takes an assignment of the interest of one of the parties to a suit pendente lite, he may, if he thinks proper, make himself a party to the suit by supplemental bill. (Lunt v. Stephens, 75 Ill. 508.) Or he may, under the modern practice, on leave of the court, file an intervening petition, and thus have his rights adjudicated upon and protected. Marsh v. Green, 79 Ill. 385.
    It was proper for the court to allow an amendment on the hearing, stating facts already proven; and the same did not, under these circumstances, operate as a withdrawal of the replication. Moshier v. Knox College, 32 Ill. 156; Martin v. Eversal, 36 id. 222; Jefferson County v. Ferguson, 13 id. 33; Gordon v. Reynolds, 114 id. 123.
    Under the circumstances, it was not error to proceed with the hearing of the supplemental bill before the cross-bill was ready to be heard. (Myers v. Manny, 63 Ill. 211; Wiley v. Platter, 17 id. 538; Beauchamp v. Putnam, 34 id. 378.) But no relief in equity can be had upon the cross-bill.
    Where a cross-bill seeks affirmative relief, it is indispensable that it be equitable relief, otherwise it will be subject to a demurrer, for to this extent it is in the nature of an original bill, seeking further aid of the court beyond the purposes of defense to the original bill, and under such circumstances the relief should be such as, in point of jurisdiction, the court is competent to administer. Tobey v. Foreman, 79 Ill. 489; Story’s Eq. Pl. sec. 398.
    This was not a case which had a legal or constitutional right to a trial by jury. Heacock v. Hosmer, 109 Ill. 245; Ward v. Farwell, 97 id. 593; Petition of Ferrier, 103 id. 367.
    It is within the discretion of the chancellor to take the verdict of a jury upon any question of fact. (1 Starr & Curtis’ Stat. p. 411, sec. 40.) In such cases, however, the verdict is merely advisory, and may be wholly disregarded in the decree. Milk v. Moore, 39 Ill. 584; Titcomb v. Vantile, 84 id. 371.
    In the present case, the cause was, without objection, referred to the master to take and report the evidence, with his conclusions thereon, on May 13, 1887, and the hearing commenced before the master on the 14th of May. The appellant appeared before the master, and participated in this hearing, and delayed making his motion for trial by jury until May 26, 1887. And the motion then made was, that all the issues of fact formed upon the pleadings be submitted to the jury, instead of requesting any particular issue to be so submitted, as authorized by the statute.
    The answer was not sworn to, nor was the motion supported by affidavit, as required by the practice. The court not only properly exercised its discretion in the denial of this motion, but to have granted it would have been positive error. Milk v. Moore, 39 Ill. 584; Hahn v. Huber, 83 id. 244.
   Mr. Justice Baker

delivered the opinion of the Court:

On and prior to the 12th day of June, 1884, there were pending in the circuit court of Cook county the cases of South Park Comrs. v. Charles B. Phillips et al., (including the various cross-bills and petitions' filed therein,) the case of Elizabeth Ann Phillips v. Rose M. Kerr, Charles B. Phillips et al., and the case of Williams, for the use of Blatchford v. Charles B. Phillips, and pending in the Superior Court of Cook county the cases of Eliza B. Eaton v. Charles B. Phillips, and Amos F. Tompkins v. Charles B. Phillips, and in the Criminal Court of Cook county, an indictment against Charles B. Phillips for libel. James K. Edsall and Samuel C. Edsall, the appellees, and John B. Hawley, attorneys-at-law, had theretofore been retained in said suits by said Charles B. Phillips, and had performed various legal services therein, and had also attended to other legal business for him. Some two months before the date above mentioned, they had, owing to a misunderstanding with said Phillips, withdrawn from said cases and turned them over to other counsel employed by him, and had brought suit against him for something over $2500, claimed by them to be due for services.

On said 12th day of June, 1884, an arrangement was made between the parties, the results of which were, that said suit for fees was dismissed, and appellees and said Hawley again took charge of the above enumerated causes pending against Phillips. On the same day, said Phillips executed to appellees and said Hawley his two promissory notes of that date, for $2500 each, one payable on or before one year from date, and the other on or before two years after date. At the, same time a written contract was entered into by and between , said Charles B. Phillips" of the first part, and appellees and said Hawley, of the second part, which, after stating that the party of the first part retains the parties of the second part to act as his attorneys and counsel in the cases above mentioned “pending in the circuit, Superior and Criminal courts of Cook county, respectively,” provides as follows :

“And the parties of the second part hereby agree to accept such retainer and employment, and to act as the attorneys and counsel for the said Phillips, and generally to do all things deemed necessary in the due course of proceedings in said courts, to faithfully represent and defend his interests in said cases, according to their best judgment and ability, in connection with such other attorneys, if any, as said Phillips has employed or may see fit to employ for that purpose; and in consideration of the premises, and also in consideration of the amount due said parties of the second part for services heretofore rendered as the attorneys and counsel for said party of the first part, the said party of the first part hereby agrees to pay the said parties of the second part the sum of $5000, one-half of which is to be paid on or before one year from the date hereof; and the remainder on or before two years from the date hereof, according to the tenor and effect of two promissory notes of even date herewith; and to secure the payment of said notes, the said party of the first part hereby assigns to the parties of the second part such portion of the amount which may be found to be due and payable to the party of the first part from the South Park Commissioners for the lands conveyed and procured to be to them by said Phillips involved in said suit, wherein said South Park Commissioners are complainants, as may be sufficient to pay the said amount so agreed to be paid to said parties of the second part; and said party of the first part hereby authorizes said parties of the second part to receive said amount so assigned to them from the said South Park Commissioners, and to give all necessary receipts therefor, either as such assignees or as the attorneys for the said party of the first part; and it is further agreed and understood, that said notes shall, in-any event, become due and payable as soon as the amount to be paid for said land by said South Park Commissioners shall be ascertained and determined.”

In September, 1884, Hawley, one of the payees of the notes, assigned his interest in the same to said James K. Edsall.

The cause of the South Park Comrs. v. Charles B. Phillips et al. was heard in the circuit court during the month of July, 1884, and on the 9th day of January, 1885, a decree was entered therein, which provided, among other things, as follows:

“It is therefore ordered, adjudged and decreed, that the complainant, the South Park Commissioners, do pay into court the sum of $36,664, (being the contract price, at $800 per acre, for said 45t8^q acres,) together with interest thereon •at six per cent per annum, from August 27, A. D. 1870, to the date of such payment, after deducting from said total of principal and interest the amount hereinbefore found to have been paid by complainant to said Phillips, with interest at six per cent per annum on each of said payments from the date thereof to the date of such payments, to-wit: 0

$300 with interest at six per cent from Dec. 15, 1869.

100 tt (6 Feb. 4, 1870.

450 tt « Apr. 4, 1870.

450 tt tt Apr. 6, 1870.

215 tt « Apr. 16, 1870.

150 H « Apr. 12, 1870.

500 « it May 15, 1870.

250 tt U Sept. 10, 1870.

250 tt tt Dec. 14, 1874.

250 tt a Mch. 11, 1875.

250 tt tt July 26, 1875.

300 « tt Jan. 16, 1876.

500 tt it July 3, 1876.

200 tt tt Sept. 26, 1876.

—To be herein distributed according to the rights of the parties as herein found and decreed, and that upon such payment into court, the South Park Commissioners be discharged from further liability therefor, and that the title of said complainant in and to said north 45T8^ acres of the east half of the south-west quarter of said section 18, upon such payment, be confirmed and established.”

Shortly after the rendition of said decree, to-wit, on the 16th day of January, 1885, the appellees filed in the circuit court the supplemental bill or intervening petition which is now in question before us, against said Charles B. Phillips and the South Park Commissioners, asking that they, said appellees, be decreed to have a lien upon the fund due said Phillips from the park commissioners, for the payment and satisfaction of the amount due or to become due upon the aforesaid notes and contract, and for other relief. On the 19th of October, 1885, said Phillips was ruled to answer the supplemental bill within twenty days, but his answer thereto was not filed until May 10,1887. Three days thereafter, on May 13,1887, the cause, and matters involved in the supplemental bill, and the issues joined thereon, were referred to a master in chancery to take and report the evidence, with his conclusions thereon. Thereafter, on May 26, 1887, said Phillips entered a motion for a trial by jury of the issues of fact in the cause, and to set aside the order of reference to the master, which motion was denied by the court. On June 28, 1887, the master made a report of the evidence and his findings, and his conclusion was, that the material allegations of the. supplemental bill were supported by the proofs, and that the prayer of said bill should be granted. Phillips filed exceptions to the master’s report on July 6,1887, and on the 12th of July, 1887, he, by leave of the court, filed a cross-bill against appellees and John B. Hawley. On the 26th of July, 1887, the cause of said supplemental bill was heard by the court, and the exceptions to the master’s report were overruled, and said report in all things approved and confirmed, and a decree rendered in favor of appellees, against Phillips, for $5763 and costs, and the same ordered to be paid out of the fund in the custody of the court. This decree was afterward, upon the appeal of said Phillips, affirmed in the Appellate Court for the First District, and the cause is now brought to this court by him by a further appeal. Various objections are urged to the decree, and the more important of these will be briefly considered.

The claim is made that the court of chancery had no jurisdiction to entertain the supplemental bill or intervening petition of appellees, and that there was a full and adequate remedy at law. The bill or petition of appellees was not, as seems to be assumed, a suit by attorneys against their client for the purpose of recovering the value of .professional services rendered, and therefore, in substance, for the recovery of unliquidated damages, nor did it involve any question of an implied lien for fees, in their favor, upon the decree or judgment recovered for their client against the park commissioners. The theory of the supplemental bill was, that appellant had, by written contract, assigned to appellees and Hawley a portion of the amount due and owing to him from the South Park Commissioners, and that the whole amount so due and owing him was a fund in the hands and under the control of the court, and that such assignment should be protected and enforced by the court, and a de'cre'e entered preserving the equitable lien which appellees had, under the contract, upon such fund. A part of a debt or chose in action is not assignable at law, but can be assigned in equity, and in such ease a trust will be created in favor of the equitable assignee on the fund, and will constitute an equitable lien upon it. Story’s Eq. Jur. sec. 1044; Pomeroy v. Manhattan Life Ins. Co. 40 Ill. 398. It is clear, not only that appellees had no remedy at law to enforce the assignment contained in the contract, but also that the jurisdiction of the chancery court, a trust being involved, was unquestionable.

These same considerations also dispose of two other objections urged by appellant against the decree. One of these is the claim that the bill was prematurely filed, and the other, the refusal of the court to submit the issues of fact in the case to a jury. The bill being to enforce an equitable interest in a, fund which was under the control of the court, it was entirely proper to file it either before or after the decree in the principal case of South Park Commissioners v. Phillips et al., and. wholly irrespective of the question whether the debt secured by the notes and written contract was due or not. The exhibition of a bill or petition is proper at any time after the assignment, in order to give the court notice of the rights of the assignee in a fund which is the subject of pending litigation, and if the rule were otherwise than as stated, the rights of such assignee would be extremely precarious. So, also, the ease being one which was properly cognizable, in equity, under one of the original heads of chancery jurisdiction, it was entirely discretionary with the court whether it would or would not submit any issue or issues of fact to a jury; and had such submission been made, the verdict rendered would have been simply advisory, and might have been disregarded by the court. The motion for a jury trial was not made until some two weeks after the reference to the master, and after a considerable portion of the testimony had been taken, and was not for the submission of any particular issue or issues, but for a trial by jury of all the issues of fact made by the pleadings. The action of the court in refusing the application was eminently proper. Eev. Stat. chap. 22, sec. 40.

It is urged it was error to deny the motion of appellant to continue the cause until answer was made to his cross-bill, and the cause was at issue thereon. This cross-bill was not filed until July 12, 1887, and the motion was entered July 15, 1887. The master had made his report of the evidence, and his conclusions thereon, on the 28th of June, 1887, and a motion was pending for the confirmation of such report and the entry of a decree in accordance with its recommendations. The matters and things alleged in the cross-bill were, with a few exceptions, contained in the answer to the bill of appellees, and the facts alleged in, the cross-bill, and not stated in the answer, had transpired and were known to appellant prior to the filing of said answer. If the" cross-bill was proper and was necessary, no good reason is suggested why it was not filed with said answer. The cross-bill made a new party to the suit, who was not before the court, by the service of process or otherwise, and to have waived the original bill until the cross-bill was ripe for hearing, would have caused vexatious delay. The filing of a cross-bill does not necessarily stay the hearing upon the original bill, and when there has been a want of diligence on the part of a defendant in chancery, and the original cause is ready for hearing, he can not interpose a cross-bill, and insist, as a matter of right, upon the postponement of the hearing of the original cause. Wiley v. Platter, 17 Ill. 538.

It is suggested, that as amendments were made to the bill at the hearing, it opened up the case, and appellant was entitled to file a new answer, and with it a cross-bill, and that the original bill thereby lost its precedence over the cross-bill. The two amendments then made were unimportant, and were the mere statement of facts already proven by appellant himself before the master—i. e., that Mr. Hawley had resided in Nebraska since the summer of 1886, and that the South Park Commissioners had, on the 23d day of April, 1887, paid into court the money due Phillips under the decree of January 9, 1885; and, moreover, the latter fact was already within the judicial knowledge of the court from the record of the principal cause in which the supplemental bill was filed. These amendments did not and could not necessitate a new answer or the filing of a cross-bill. The cross-bill was filed July 12, and the amendments were not made until July 26, and appellant then made no offer to amend his pleadings or file new pleadings, and did not renew his motion, which had been overruled on July 15, to continue the cause until the cross-bill was ready for hearing. We find no error in the ruling of the court upon the motion for continuance.

The principal contention of appellant is, that appellees and John B. Hawley did not faithfully represent and defend his interests, as required by the contract of June 12, 1884, in the suits and causes mentioned in said contract. The master, in his report, and the court, in its decree, each finds, in substance, that appellees and said Hawley had faithfully, and with due care, skill and diligence, complied with and performed their part of said contract. Six suits are mentioned in the contract, and three of these were satisfactorily ended within a short time after the contract was made. The cause of Elizabeth Ann Phillips v. Kerr, Charles B. Phillips et al. is not yet disposed of, but it was heard in respect to the matters in controversy between said Elizabeth Ann Phillips and the Kerrs, in February, 1886, and at the time of the hearing of this case was still held under advisement in .the trial court. It appears from the evidence, that nothing further can be done in said suit in behalf of appellant, without said Elizabeth Ann Phillips is successful in her controversy with the Kerrs, but that in that event he may be entitled to relief upon his cross-bill against her. It further appears that appellees and said Hawley have thus far done all required of them in said cause to advance the interests of their client, and are ready and willing to perform all services in said litigation that may be hereafter necessary in order to protect such interests.

It is objected, that in the suit of Williams, for use of Blatchford v. Phillips, which was finally disposed of in July, 1885, there was, in two respects, a failure on the part of appellees and said Hawley to perform their duty under the contract of June 12, 1884,—that Hawley did not appear in court and take part in the trial of said cause, and that appellees failed to procure a bill of exceptions to be signed and filed within the time limited therefor by the order of the court. Appellant was entitled, under the contract, to the services of all three of the attorneys in each one of the suits mentioned therein. But, it will be noted, the contract was to act as his attorneys and counsel, and do all things deemed necessary to faithfully represent and defend his interests in said cases, according to their best judgment and ability. The spirit of the contract did not require that all three of the attorneys should be present in court when each and every step was taken in each and every one of the six cases, unless in their best judgment such presence was necessary or advisable. The conduct of all the parties to the contract in regard to the trial and proceedings, in this and the other suits, clearly indicates it was understood by them as is above suggested. It appears that all three of the attorneys acted together in the case in question, and that appellees, after consultation with Mr. Hawley in regard to the case, attended to the trial, and that no complaint was made, at the time, that they did not all three participate therein. The case of Morgan v. Roberts, 38 Ill. 65, cited by appellant, is not here in point. In that ease there was an abandonment of the suit and of the contract by one of the counsel employed, while here no such abandonment is shown by the evidence.

In respect to the matter of the bill of exceptions, it is to be noted that under the contract appellant had the right to employ other attorneys to act in conjunction with appellees and Mr. Hawley, and that he did retain Mr. Sherburne to assist in the trial of the case. The evidence conclusively shows that after the motion for a new trial was overruled, appellees offered to prepare a bill of exceptions, but that appellant objected to their having anything to do with it, and insisted it should he prepared and attended to by Mr. Sherburne alone. Through some misunderstanding with the presiding judge and opposing counsel, the bill of exceptions was not signed and sealed. It is manifest that it was through no fault of appellees or of Mr. Hawley that a bill of exceptions was not filed within the time allowed. The acts and conduct of appellant himself having prevented appellees from taking a bill of exceptions, he is, in equity, estopped from complaining of their failure so to do.

It is urged, that in the case of South Park Comrs. v. Phillips et al. reported in 119 Ill. 626, appellees and said Hawley failed, in several respects, to comply with their duty under the contract. We have carefully examined the evidence in the record, and fail to find proof that there was a breach of professional duty on their part in failing to charge, in the answer of Phillips, that the contract of December 10,1869, was obtained by fraud, or that any facts were stated to them or data furnished them upon which they could properly have made such a charge, or that the want of such charge worked the rejection of any testimony, or injuriously affected the rights of appellant.

In view of the fact that the park commissioners, on the 27th of August, 1870, took possession of the 45 j8^ acres of land which was found to belong to appellant, the trial court allowed him interest from that date on the $800 per acre to be paid therefor, and at the same time gave the commissioners credit for the several payments they had made to appellant on the contract, with like interest thereon from the dates of such respective payments, and directed that all the computations of interest should be made to the date of the payment into court by the commissioners, of the contract price and interest. It is claimed that appellees and Hawley were derelict in duty, in that they did not procure a decree for a sum in gross, composed of the principal of $36,664, and interest computed thereon at six per cent per annum, from August 27, 1870, to the date of entering the decree, less the credits due the commissioners,, and that by their failure to do so, appellant lost a large amount of interest upon interest which would have accrued upon the decree if properly entered between the date of such entry, January 9, 1885, and the date of payment, April 23, 1887. There might be force in this point were it not for the fact that the possession taken by the commissioners on August 27,1870, was not, as to appellant, either tortious or under the law of eminent domain, but was under and in pursuance of the contract of December 10,1869, and by the terms of that contract, and under the proofs, the compensation payable to him was not due until the title to the land was freed from all adverse claims by the final judgment, in 1882, of the Supreme Court of the United States, in the case of Kerr v. South Park Commissioners and Phillips. It would seem, then, the decree was, in respect to the matter under consideration, very favorable to appellant,—that by it he was allowed interest upon the $3(3,664 for a period of between eleven and twelve years, before the money was due iinder his contract, and in the absence of any provision therein for interest. Clearly, it would not have been advisable in his solicitors to object to the decree proposed by the court on the ground it did not afford him a more liberal allowance of interest.

The other objections made to the manner in which appellees and Hawley attended to the interests, of their client in the South Park Comrs. case, do not seem to require special- notice. Suffice it to say, we do not regard them as substantial or tenable.

It is insisted, that under the contract of June 12, 1884, the $5000 to be paid appellees and Hawley did not draw interest until April 23,1887/—the-time the money was paid into court by the commissioners,—and that the action of the court in allowing interest on said sum from the date of the entry of the decree of January 9, 1885, was erroneous. It was agreed in the contract “that said notes shall," in any event, become due and payable as soon as the amount to be paid for said land by said South Park Commissioners shall be ascertained and determined.” The two matters in controversy in the South Park Commissioners’ suit, as between them and appellant, were, the ascertainment of the quantity of land he owned and was entitled to "be paid for, and the question whether he was to be paid $800 per acre as the value "of the land. The decree settled these questions, and determined the rights of all the parties to the litigation. The decree did not, as would have been the proper and better practice, make the computation, and state in words and figures the amount of principal and interest the commissioners were decreed to pay for the portion of the land awarded to appellant. It did, however, find the number of acres awarded to him (45T8^30-), the price per acre ($800), the total amount of the contract price ($36,664), and fixed the date (August 27, 1870,) from which interest at six per cent per annum should be computed thereon up to the date of payment; and it also found the amounts and dates of the several payments made on the land, and directed that said payments, with interest at six per cent per annum on each of such payments, from the date thereof to the date of the payment of the decree, should be deducted from said total of principal and interest required to be paid for the land. The decree contained all the necessary data from which, by mere computation, the exact amount to be paid for the land could be calculated, and in the nature of things there could be but one result. That is sufficiently certain which can be made -certain. In our opinion, the amount which was to be paid appellant for the land by the South Park Commissioners, was, within the import and meaning of the contract of June 12, 1884, ascertained and determined by the decree of January 9, 1885, and the $5000 then became due and payable, and, under the statute, bore six per cent interest after that date.

We find no manifest error in the decree or in the record, and the judgment of the Appellate Court is affirmed.

Judgment affirmed.

Mr. Justice Bailey, having heard this case in the Appellate Court, took no part in its decision here..


source: Caselaw Access Project

author: Mr. Justice Shops

license: Public Domain

text:
    Charles F. Orthwein v. Charles W. Thomas et al.

      Filed at Mt. Vernon April 5, 1889.

    1. Descents—illegitimates—meaning of the words child” and children." Prior to 1822 the common law in regard to illegitimates had not been modified by statute, and a bastard could not inherit, even from its mother. The words “children” and “child,” when used in a statute, are construed to embrace only legitimate children.
    2. „ Same—presumption in favor of legitimacy. The law will presume that every child is the offspring of a lawful rather than a meretricious union of the parents, and that consequently the mother, either by actual marriage or by cohabitation and recognition, was the lawful wife of the father.
    3. Inasmuch as the presumption of the legitimacy of offspring attaches to every child, the burden of showing illegitimacy is cast on those who allege it. Mere rumor is insufficient to bastardize issue, or require positive proof of actual marriage. If the presumption is false, that may be shown by-repellan! facts, otherwise the presumption, from mere filiation, must stand.
    4. Estoppel—of grantee, as to recitals in deed. The grantee in a deed is estopped to deny the recitals therein, and after the deed is recorded in the proper county, all persons claiming through him will be equally estopped. When such deed names a person as the wife of another, in reciting the grounds for a conveyance, the grantee and those claiming under him will not be allowed to deny the lawful marriage of such person, and bastardize her issue.
    5. Estate by the cubtesy. On the death of a married woman, in 1832, seized in fee of land and leaving issue, the husband took an estate by the curtesy in the wife’s lands, and the children, the heirs of both, will have no right of entry in the lifetime of the father.
    6. Tenancy by the entirety—deed to husband and wife. Where the owner of land conveyed the same to “T. 0., and S. 0., his wife, and their heirs and assigns forever,” in 1825, it was held, that the conveyance being to a husband and wife, they took the estate granted as tenants by the entirety, and neither one was capable of claiming or holding adversely to the other.*
    7. Limitations—color of title—whether acquired in good faith. Where a husband, with both actual and constructive notice of his wife’s title to land, fraudulently procured a decree in a suit to which she was a stranger, under which a deed was made to the husband, of such lands, it was held, that such deed could not be relied on as color of title, because it was acquired fraudulently, and not in good faith.
    8. Same—when the statute begins to run—as against a remainder-man. Until the death of the life tenant, no statute of limitations will begin to run against the remainder-man, and laches will be imputed to him only from the time his right of entry accrues.
    9. A party in the actual possession of land may safely lie by until his possession is invaded or his title attacked. Until this is done, laches will not run against him.
    10. Decree—upon whom binding—parties and privies—who regarded as privies. It is only parties, and their privies in blood or estate, that are estopped by a decree or judgment; and parties to a decree, in the eye of the law, are those only who are named as such in the record, and are properly served with process or enter their appearance. A privy in blood or estate is one who derives his title to the property in question by descent or purchase, and a privy to a judgment or decree is one whose succession to the rights of property thereby affected occurred after the institution of the particular suit, and from a party thereto.
    11. Same—as to one not a party. A decree of court finding the title to a wife’s land to be in her husband, who files the bill, will not bind the wife when she is not made a party to the suit.
    * See Cooper v. Cooper, 76 Ill. 57; Almond v. Bonnell, id. 537; Harrer v. Wallner, 80 id. 197.

      Appeal from the Circuit Court of St. Clair county; the Hon. George W. Wall, Judge, presiding.
    Mr. E. F. Wingate, and Mr. J. B. Bowman, for the appellant:
    In proving title by descent, proof of facts from which legitimacy may be inferred, is sufficient. Pratt v. Pierce, 36 Me. 448.
    Every child is presumed to be legitimate, and in the absence of evidence to the contrary, no proof of marriage of the parents is required. The law is unwilling to bastardize children, and imposes the burden of proof upon the party alleging illegitimacy. Strode v. Gowan, 2 Bush, 621.
    In evidence of marriage, proof of actual marriage, in the case of obscure families, must be very slight. On the question of legitimacy, recognized authority is not to be found requiring the heir, an acknowledged and conceded child, to prove an act of marriage as a requisite to maintain its legitimacy: The presumption and charity of the law are in its favor, and they who wish to bastardize the child, must make out the fact by clear and irrefragible proof. The presumption in favor of marriage can only be negatived by disproving every reasonable possibility. Caujolle v. Ferrie, 23 N. Y. 91.
    General reputation as to illegitimacy is inadmissible'as evidence. Phillips v. Allen, 2 Allen, 453; Haddock v. Railroad Co. 3 id. 298.
    Evidence that a child was treated as illegitimate by its relations, is inadmissible. Hemmenway v. Towner, 1 Allen, 209.
    Suspicions, conjectures and rumors, however strong, will not do to rebut this presumption. Caujolle v. Ferrie, 23 N. Y. 91.
    Suspicions and doubts can not be indulged. Patterson v. Gaines, 6 How. 551; Strode v. Gowan, 2 Bush, 621.
    The presumption of legitimacy is not lightly to be repelled. It is not to be broken in upon or shaken by a mere balance of probabilities. The evidence for the purpose of repelling it must be strong, distinct, satisfactory and conclusive. Ferrie v. Public Admr. 4 Bradf. 83.

      Even where there are conflicting presumptions on questions of legitimacy, the presumption of innocence must prevail. Seuser v. Bower, 1 Pa. St. 450; In re Taylor, 9 Paige, 611; Strode v. Gowan, 2 Bush, 621; Durkins v. Samuel, 10 Rich. 66; Patterson v. Gaines, 6 How. 551; Donnelly v. Donnelly, 8 B. Mon. 113; Caujolle v. Ferrie, 23 N. Y. 91; Hill v. Hill, 32 Pa. St. 511; Starr v. Peck, 1 Hill, 270.
    As a general rule, recitals in a family deed will be received on a question of pedigree. (1 Greenleaf on Evidence, sec. 103.) Especially as against the parties thereto. Pinckard v. Milmine, 76 Ill. 453; Byrne v. Morehouse, 22 id. 603.
    It may be that the expressions employed in the deed from James and Eanny Hillman to Osborn, that said Hannah had died “leaving the said James Hillman, her father, and Fanny, his wife, his (her) heirs-at-law,” will be resorted to as proof to establish the charge that said Susannah was an illegitimate child of said Hannah Ratcliff. But this rule has its limitations, among which are: The recitals are restricted to
    statements of facts as to births, marriages, deaths or mutual relationships of the persons whose pedigree is in question; and they must have been made by relatives since deceased, who at the time of making the recitals had no interest in misrepresenting the facts therein stated. Vowles v. Young, 13 Ves. 140; Waldron v. Tuttle, 4 N. H. 371.
    Susannah was not a party to this deed, and the assertion of a conclusion of law, in a family deed or otherwise, as, that one person is the “heir” of another, is not competent as evidence. In proof of heirship, the relationship of the parties must be shown by the facts, leaving the court to determine the heirship. Moorehouse v. Mathews, 2 Comst. 514.
    As to the admissibility of hearsay in matters of pedigree, see Monkton v. Attorney General, 2 R. & M. 147; 1 Greenleaf on Evidence, sec. 103; 1 Phillips on Evidence, (4th ed.) 203, 204; Strode v. Gowan, 2 Bush, 621; Waldron v. Tuttle, 4 N. H. 371.

      The, decree in 1825 is void for fraud in its procurement. Freeman on Judgments, secs. 99, 336, 449, 491, 334, 335; Griffith v. Clark, 18 Md. 457.
    Mrs. Oshorn not being a party to that decree, it is void as to her and her rights. D’Armond v. Adams, 25 Ind. 554; Callahan v. Griscold, 9. Mo. 784; Morris v. Hogle, 37 Ill. 150; Huls v. Buntin, 47 Ill. 396; Borders v. Murphy, 78 id. 81; Freeman on Judgments, sec. 162.
    Mr. M. Millabd, and Mr. William P. Launtz, for the village of Brooklyn.
    Mr. Chables W'. Thomas, and Mr. C. H. Patton, for the other appellees.
   Mr. Justice Shops

delivered the opinion' of the Court:

This was a proceeding in equity to establish title, and for the partition of all that part of United States survey No. 764, in St. Clair county, lying between Water street, in the village of Brooklyn, and the Mississippi river, being 1995 feet long north and south, and about 2000 feet wide, and which has been formed by accretion since 1837, when the village was platted. The complainants in the original bill claim to be the owners of the premises in question in fee, as tenants in common, under mesne conveyances from Thomas Osborn. The village of Brooklyn, one of the defendants, claims the premises by virtue of a town plat, made and recorded by Thomas Osborn and his immediate grantees in 1837, and as accretions to Water street; and the appellant, also one of the defendants, claims an undivided thirty-three thirty-fifth interest in the same premises, under mesne conveyances from the heirs of Susannah Osborn. Answers were filed to the bill, and defendant Orthwein exhibited his cross-bill, which was also answered. Beplications were filed and testimony taken under the original and cross-bills and answers, and upon the hearing both the original and cross-bills were dismissed. The defendant Orthwein alone perfected his appeal, and brings the record into this court, assigning for error the dismissal of his cross-bill.

Hannah Ratcliff, or Hannah Hillman, the same person, is the common source of title. Hannah Hillman was the daughter of James and Fanny Hillman. About 1808 she removed from Pennsylvania and settled in St. Clair county. She bought the militia claim of John Moredock, No. 610, for one hundred acres of land, which was located upon United States survey No. 764, which is the tract of land to which the land in controversy is an accretion, and upon which she settled about 1813, occupying it as a residence while she lived, and owned it in fee at the time of her death, in 1822. She died intestate, leaving surviving one child, Susannah, born in 1786, who, in 1807, intermarried with Thomas Osborn. Susannah and her husband moved upon this land of her mother’s about 1816, and also occupied it as a residence from that time till the death of Susannah, in 1832. Susannah died intestate, leaving surviving, her husband, Thomas Osborn, and six children.

It appears that Hannah Hillman emigrated to this State with one William Ratcliff; that they here lived together upon this survey, as man and wife, until Hannah’s death. There is no direct evidence of their marriage. The first serious question presented is as to the legitimacy of Susannah. She was the daughter of said Hannah, but the original bill charges- that she was a bastard, and incapable of taking, by descent, the lands owned in fee by her mother at the death of the latter. When Hannah died, her father and mother, James and Fanny Hillman, were still living in Pennsylvania, and the theory of the bill is, that James and Fanny Hillman took by descent, as heirs of their daughter, Hannah, survey No. 764, and that Susannah took nothing.

At the time of Hannah’s death, in 1822, the common law had not been modified by statute, and a bastard could not inherit, even from its mother. It is true, that -from the earliest organization of civil government in the territory north-west of the river Ohio, the descent of property had been regulated by written law. The rule of descent was first declared in the ordinance of 1787, and the act of March 23, 1819, (Laws 1819, sec. 21, p. 230,) in force in 1822, was a literal transcript of the second section of the ordinance. And although the rule had, meantime, been thrice declared by legislative authority, viz., by the Governor and judges of the territory north-west of the Ohio river in 1795, (Ter. Laws 1795, sec. 4, p. 92,) by the legislature of the Indiana Territory in 1807, (Eev. Stat. Ind. Ter. 1807, p. 77,) and by the Governor and judges of the Illinois Territory in 1809, (1 Pope’s Digest, sec. 22, p. 207,) in every instance the persons first taking from the ancestor were described as “children.” Susannah was the child of Ham nah, and within the letter of the statute; but if illegitimate, she would nevertheless be excluded from the inheritance, for, under the rule of construction as applied to statutes, the word “child” or “children” embraces only legitimate children. (Blacklaws v. Milne, 82 Ill. 505.) It was not until 1829 that the rule of the common law was so modified in this State as that illegitimates could inherit from their mother. (Rev. Laws 1829, sec. 47, p. 207.) And this has been the rule of descent from that time to the present.

If, then, the complainants have shown that Susannah was illegitimate, the estate of Hannah descended, “in equal parts, to'the next of kin in equal degree,” namely, to the father and mother, brothers and sisters (if any), and their descendants. Act of March 23, 1819.

For the purpose of showing illegitimacy, reliance is placed upon a deed from James and Fanny Hillman, executed and acknowledged hy them in Alleghany county, Pennsylvania, February 19, 1825, to Thomas Oshorn. This deed recites:

“Whereas, Hannah Eateliff, wife of William Eateliff, of said State of Illinois, daughter and heir of the said James Hillman, departed this life in the month of October, 1822, leaving the said James Hillman, her father, and Fanny, his wife, her heirs-at-law: Now, for the purpose of vesting said Thomas Osborn, and Susannah, his wife, who is the daughter of said Hannah Batcliff, with all the real estate, to-wit, lands, tenements, "hereditaments, which the said Hannah Batcliff "was possessed at the time of her death, situate and being in the State of Illinois, aforesaid, and for the sum of one dollar to us in hand paid by the said Thomas Osborn at and before the ensealing and delivery hereof, the receipt of which is hereby acknowledged, have granted, bargained and sold to the said Thomas Osborn, and Susannah, his wife, and their heirs and assigns forever, all lands, tenements, hereditaments, of whatever nature or kind, which descended to us at the death of our daughter, Hannah Batcliff, late of the State of Illinois, deceased.”

It is manifest that the recitals of fact in this deed operate by way of estoppel upon Thomas Osborn, and, after its record in the proper county, August 9, 1827, upon his grantees. . As was said in Pinckard v. Milmine, 76 Ill. 453: “We recognize the doctrine of estoppel by the recitals in a deed, and that a party claiming under such deed can not be permitted to deny any fact admitted to exist by such recitals, ”—citing Byrne v. Morehouse, 22 Ill. 603, and Rigg v. Cook, 4 Gilm. 336; and adding: “The principle of these cases is, that whatever rights legitimately arise on such admitted facts may at all times be asserted, whether it be to obtain or defend the possession of such rights.” Thomas Osborn would not have been permitted, nor can the appellees, his remote grantees, now be heard, to deny the facts recited in this deed, namely, that Hannah Hillman and William Batcliff were man and wife, and that Susannah Osborn was the daughter of Hannah Batcliff. Hannah Batcliff was then a married woman, and Susannah Osborn was her only child. In contemplation of law, Susannah is presumed to have been born in lawful wedlock, and this presumption must prevail until the legal presumption of legitimacy, and which attaches to every child, is overcome by clear and convincing proof; and the burden of showing illegitimacy is, by the law, cast upon those who allege it.

The doctrine announced is fully sustained by the authorities. In Strode v. Magowan’s Heirs, 2 Bush, (Ky.) 621, it is, said: “The law presumes that every child in a Christian country is, prima facie, the offspring of a lawful, rather than a meretricious, union of the parents, and that, consequently, the mother, either by actual marriage or by cohabitation and recognition, was the lawful wife of the father; and, in the absence of any negative evidence, no supplemental proof of legal marriage will be necessary to legitimate the offspring. Mere rumor is insufficient to bastardize issue, or require positive proof of actual marriage. If the presumption be false, repellan! facts may generally be established; and if no such fact can be clearly proved, the presumption, from mere filiation, should stand.” So in Wilkinson v. Adam, 1 Ves. & B. 422, it is said by Lord Eldon that the rule can not be stated too broadly, that the description “child,” “son,” “issue,” and every word of that species, must be taken, prima facie, to mean legitimate child, son, issue, and that to this extent all the cases go. So, too, in Caujolle v. Ferrie, 23 N. Y. 91: “It being shown and conceded that the respondent was the son of the deceased, * * * the presumption of law was, that he was her legitimate son, and those who assume the fact of illegitimacy have cast on them the onus of establishing it.” And the cases cited by the court go to this extent: that the law is unwilling to bastardize children, and throws the proof on the party who alleges illegitimacy, and in the absence of evidence to the contrary, a child, eo nomine, is therefore a legitimate child. Nor does the law require an acknowledged and conceded child to prove an act of marriage to maintain his legitimacy. The presumption and charity of the law are in his favor, and those who wish to bastardize him must make out the fact by clear and irrefragible proof. The presumption of law is not lightly to be repelled. It is not to be lightly broken in upon, or shaken by a mere balance of probabilities. The evidence for repelling it must be strong, satisfactory and conclusive. And in another case cited, (Pier v. Pier, 2 H. of Lords Cas. 331,) it is said, “presumptions of this sort in favor of marriage can only be negatived by disproving every reasonable possibility.”

The witnesses all affirm that Susannah Osborn was the daughter of Hannah Ratcliff, and the recitals in the deed confirm this; but the deed goes further, and shows that the daughter of the grantors was the wife of William Ratcliff. The witnesses also show that William and Hannah Ratcliff emigrated to Illinois in 1808, and thereafter lived together as husband and wife until the death of Hannah, and it is also shown that in 1816 William Ratcliff, and Hannah, his wife, joined in the execution and acknowledgment of a deed conveying land. It is also shown that Susannah was married to Thomas Osborn in 1807, at the age of twenty-one years, and although there is no evidence as to when William Ratcliff became the husband of Hannah Hillman, the testimony of the two sons of Benjamin Hillman, (a brother of Hannah,) that they had heard their father say, when speaking of their aunt, whom the witnesses never saw, on occasions which they could not fix with any distinctness, and in cconversations which they could not recall with any clearness, that Hannah had no husband, and that her daughter was illegitimate, does not rise to the dignity of that general repute in the family which the law regards as competent evidence in respect to pedigree, and is insufficient to repel the presumption of marriage. It is not general repute at all,—it is the specific hearsay statement of a single member of a numerous family, and, as such, is altogether too unsatisfactory and inconclusive to overcome the legal presumption of timely marriage between Hannah Hillman and William Rat-cliff, and the legitimacy of their child, Susannah. And the testimony of these two nephews of Hannah Ratcliff, speaking, at most, only as to the repute in the family of their father, is all there is in this record to cast the slightest suspicion upon Susannah’s legitimacy.

What is here said is not at all affected by the statement in the deed of James and Fanny Hillman, (father and mother of Hannah Hillman,) that upon the death of Hannah Ratcliff she left “the said James Hillman, her father, and Fanny, his wife, her heirs-at-law.” Whether they were or were not the heirs-at-law of their deceased daughter, would depend, not upon their naked assertion of heirship, but upon the existence of certain facts. It is impossible that they could have been the heirs-at-law of their deceased daughter, if such daughter left surviving legitimate offspring, or descendants thereof; so that to make their statement of heirship in the deed true, they should have gone further, and bastardized the issue of their daughter, or been in a condition to do so by that character of proof required by the law. So far from doing this, they, by their recitals of fact in the same deed, as we have seen, support the legal presumption of legitimacy. .

In any view we have been able to take of the facts disclosed by this record, the conclusion has been forced upon us, and we so hold, that Susannah Osborn was the legitimate daughter of William and Hannah Ratcliff, and took by descent, on the death of her mother, survey No. 764, of .which her mother died seized in fee. This being so, upon the death of Susannah Oshorn, in 1832, intestate, leaving surviving a husband, and six children born of the marriage, the estate descended to and vested in her children, subject, as the law then stood, to the estate of Thomas Osborn, her surviving husband, as tenant by the curtesy. As such tenant, Thomas Oshorn was entitled to the possession, use and enjoyment of survey No. T64 for the term of his life, and which was not determined until his death, June 16, 1863.

Appellant claims to be the owner in fee of thirty-three thirty-fifths of the premises in controversy, by a chain of eonveyances from the children and descendants of the children of Susannah Osborn. That the conveyances relied upon had the effect of vesting in appellant the fractional interest, if any they had, of such of the heirs of Susannah Osborn as conveyed to him or his grantors in the premises in controversy, is not denied; but it is insisted, on behalf of the village of Brooklyn, that appellant is not entitled to the relief prayed for in his cross-bill, because, first, Thomas Osborn was the owner in fee of survey No. 764; and second, if Thomas Osborn was not such owner, any claim based upon the title of Susannah Osborn is barred by lapse of time and by estoppel.

In support of the first position, reliance is placed upon the deed of February 19,-1825, from James and Fanny Hillman to Thomas' Osborn, and Susannah, his wife. This deed was inoperative as a conveyance of title acquired by the grantors by descent from their daughter, Hannah Ratcliff, for the reason, as we have seen, the grantors took nothing by descent. It is next contended, that Thomas Osborn acquired title by virtue of a decree of the circuit court of .St. Clair county, and of a commissioner’s deed executed in conformity thereto. That was a proceeding in equity, instituted by Thomas Osborn, against Jacob Trout and James Ward. The verified bill was exhibited in August, 1827. Complainant alleged therein, that by deed of bargain and sale of February 19, 1825, he purchased of James and Fanny Hillman all the lands in Illinois which they, as father and mother of Hannah Ratcliff, inherited from her; that Hannah Ratcliff died seized in fee of survey No. 764, but without any lineal legal heir-at-law, whereby these lands, descended in fee to her father, James. Hillman. By proper averments the militia claim of Moredock, its location on survey No. 764, and its confirmation to Jacob Trout, were set out, followed by the allegations, that in consideration of $100 paid to him by James Ward, for the use of Hannah Ratcliff, Trout conveyed, by. deed of bargain and sale, the same premises to James Ward, for the use of Hannah Ratcliff, and that afterwards, by a like deed, Ward conveyed the premises to Hannah Ratcliff, “for whom the militia claim was purchased by the said Ward with her money.” The loss or destruction of these deeds, and that they had never been recorded, was alleged; also, that the deed from Ward to Hannah Ratcliff could only be established by William Ratcliff, who had departed the State, and whose residence was unknown, but referred to and exhibited an affidavit of said Ratcliff, showing its execution; that Trout knew Ward had bought the land with the money of Hannah Ratcliff, but refused to make a deed therefor directly to complainant; that Ward had departed this State, and his whereabouts was unknown, and praying a decree that Trout and Ward make to complainant a conveyance that should vest in him the fee, or that it be made by a commissioner, and which should bind Trout and Ward, and their heirs, etc. Trout answered, admitting the conveyance by him to Ward;- that he was ready and willing to make another deed, and brought in and tendered a" deed for the premises, running to Ward, and admitting that Ward purchased of him for the use of Hannah Ratcliff. By leave of court, the deed tendered by Trout was withdrawn and placed on record. The cause was continued for publication against Ward, and at the next term (March, 1828,) the bill was taken as confessed against Ward, and a decree passed, based on the deposition of one McRoberts and the affidavit of William Rat-cliff, directing the execution of- a deed to complainant of survey No. 764, vesting in him- all 'the right and title of Trout and Ward, and which deed should' be a bar against Ward, “and all claiming under him.” A commissioner was named, who, on March 28, 1828, conveyed the premises to Thomas Osborn, in conformity with the decree.

It is hard to understand how an intelligent court could have been induced to render the decree mentioned, upon the facts disclosed. The first material allegation in the bill was untrue. Had-the deed of February 19, 1825, from James and Fanny Hillman, been exhibited (which was not done,) or brought to the knowledge of the court, (which manifestly was not done,) it would have shown, upon its face, that the conveyance was to “Thomas Osborn, and Susannah, his wife, and their heirs and assigns forever.” Being husband and wife, Thomas and Susannah were, under this deed, and upon the, theory that it was operative as a conveyance, tenants by the entirety, and either was incapable of claiming or holding adversely to the other. This was elementary law, familiar to the distinguished justice who presided at the trial, and to the eminent counsel for the complainant; and it is clear that Susannah Osborn had no notice of this proceeding, or in any way consented thereto. The conveyances from Trout to Ward, and from Ward to Hannah Ratcliff, being lost or destroyed, and never having been recorded, it was proper practice to invoke the aid of a court of equity for the purpose of obtaining renewal deeds. In such application, Susannah Osborn was a necessary party, and no court, with knowledge of her joint interest in the premises, would have retained jurisdiction of the bill unless she was joined as complainant or defendant. Not being a party to this proceeding, and being, as the evidence shows* in the actual possession of the premises, Susan-nah Osborn’s - rights, even as the co-tenant of her husband, were not and could not be affected by any decree the court did or might render; and her husband, when he took the deed under this decree, took it both with actual and constructive notice of her rights in the premises, not only as his pretended co-tenant, but of her rights as owner of the fee, as heir-at-law of Hannah Ratcliff. As against Trout and Ward, and as a judicial determination of the fact that Hannah Ratcliff acquired the fee to these premises by a chain of conveyances from the United States, the decree may be binding and conclusive, but as against Susannah Osborn and her heirs, and those claiming through and under them, it is without force or effect. Nor can the deed to Thomas Osborn, acquired under this decree, amount to color of title, because not acquired in good faith. As Thomas Osborn acquired no interest in survey No. 764 under and by virtue of the deed of February 19, 1825, as before shown, neither did he acquire any interest or estate therein by virtue of this judicial proceeding, or of the deed made in conformity thereto. That deed only purported to convey to him the interest in that survey acquired by Ward from Trout. At the time the bill was filed, decree rendered and deed made, Ward had no interest in the premises. All the interest and estate he ever had,, had long before been by him conveyed to Hannah Ratcliff, and vested in her in her lifetime, and on her death passed to her only heir-at-law, Susannah Osborn.

As to the second contention of the village of Brooklyn,— namely, laches and estoppel,—it must be observed, as Susan-nah Osborn died intestate in 1832, seized in fee of survey No. 764, leaving surviving, her husband, Thomas Osborn, and six 'children born of their marriage, such children took the estate by inheritance, incumbered, however, by a life estate in Thomas Osborn, their father, as tenant by the curtesy. The right of possession was in Thomas Osborn as long as he might live, and it was not until his death, June 16, 1863, that a right of action or of entry accrued to the fee owners. Until the death of the life tenant, no statute of limitations began to run against the heirs of Susannah Osborn or their grantees, and laches can only be imputed to them from the time their right of entry accrued. We can not say that appellant, and those through whom he claims, were guilty of laches after the death of Thomas Osborn. At bis death, the particular premises in controversy were not in the actual possession of any one. They had been formed by accretions by the Mississippi river since 1837. Along the east side lay Water street of the old town of Brooklyn,—a street that the evidence shows had never been used and occupied as a street, either by the old town of Brooklyn or by the more modern village. The land lay low, and was subject to overflow. But in 1873, Louise J. Purdy, who, by conveyances from the heirs of Susannah Osborn, had acquired a large fractional interest in these premises, under the claim of ownership took possession of these premises in the most epen and hostile manner. She built a fence along the north, east and south sides, and erected a house thereon, which was occupied by her tenant. True, the water, years afterwards, washed away her house and fences, but she continued to exercise acts of ownership over the premises, paying the taxes thereon until in 1882, when she sold and conveyed to appellant, and thereafter, and until the commencement of this suit, appellant claimed the ownership to the extent of thirty-three thirty-fifths, and possession thereof. Being in possession, appellant might safely lie by until his possession was invaded or his title attacked.

. The whole force of the argument of the village in support of the defense of laches is spept in pressing on our attention the fact that during all the years intervening between the death of Susannah Osborn and the filing of appellant’s cross-bill, her heirs, and those claiming through them, remained silent. From her death, in 1832, down to the death of her husband, in June, 1863,—thirty years and eight months,— this is certainly true. During all that time, however, they could neither speak nor act. The right of possession was in their father and his grantees, and their right of entry had not accrued, and it was only upon the determination of the intermediate life estate that they were required to speak or act,— nor then, as we have seen, until their rights were attacked or invaded. No word spoken or act performed by Thomas Osborn, or those claiming under him, during the existence of his life estate, could in the least affect the rights of those entitled to the possession upon the termination of his estate. True, Osborn and his immediate grantees, in 1837, and following the forms of the law, laid out and platted a town upon survey No. 764; but it was impossible that he should grant or convey thereby any greater interest in the land than he possessed. The possession of the streets and alleys of the town by the corporation, during Osborn’s life, was in no sense adverse or hostile to those entitled to the possession of the lands on the termination of the life estate. And this is so for the obvious reason, that, pending the right of entry and of possession of the fee owners, the possession of the life tenant and his grantees was lawful, and could, by no legal possibility, become hostile or adverse until the life estate was determined. .It is not contended, as we understand, that the village of Brooklyn, after the death of Osborn, had actual possession of the premises in controversy. Indeed, it clearly appears that when Ludwig made his survey, in 1874, at the request of persons acting as village authorities, and made the new plat, he did so according to the old plat, extending it no further westward than to embrace and show Water street, eighty feet wide, and that at that time Ludwig found the lands lying to the westward (the controverted lands) under fence, and an occupied dwelling house thereon. That this was the fence and house erected by Mrs. Purdy, and before spoken of, is unquestioned.

This litigation relates only to the tract of land formed by accretion since the laying out of the village of Brooklyn, and lying west of Water street therein, which street was the western boundary of the village, as platted. Hence the argument of counsel, predicated upon the supposed effect of the holding in this case upon the land included in the village, can not be here considered. It may, however, be said, without impropriety, that it must be apparent, if, as counsel contend, the streets and alleys of the village, and the lots therein, have been in .the adverse possession of the village and lot owners since the death of Osborn, in 1863, that the principles and rules applied to the present case might not be held applicable when the question as to the title to such streets, alleys and lots arises, if it ever should arise.

But it is also contended that appellant is estopped by the decision in the case of Village of Brooklyn v. Smith, 104 Ill. 429, wherein it is held, upon the record then before the court, that the lands in controversy belonged to the village of Brooklyn, and formed a part of Water street. In that case Smith, a tenant in possession under Mrs. Purdy, sought injunction against the village, to restrain its officers, and licensee, Yoise, from interfering with Smith’s use of the premises for the purpose of cutting and storing ice thereon. The only parties to the proceeding were Smith, in his character of tenant, the village and Yoise. As against Smith, and all claiming through and under him, the decree in that case is final and conclusive. But upon what principle can it be said that Mrs. Purdy, and appellant, claiming through and under her, are bound and concluded by a decree in a cause in which she was not a party ? It is only parties, and their privies in blood or estate, that are estopped by a decree or judgment. (Morris v. Hogle, 37 Ill. 150; Huls v. Buntin, 47 id. 396.) Parties to a decree, in the eye of the law, are those only who are named as such in the record, and are properly served with process, or enter their" appearance, (Borders v. Murphy, 78 Ill. 81,) while a privy in blood or estate is one who derives his title to the property in question by descent or purchase; and a privy to a judgment or decree is one whose succession to .the rights of property thereby affected occurred after the institution of the particular suit, and from a party thereto. Freeman on Judgments, (3d ed.) sec. 162.

It is very clear, when the Smith case was before the court, and from the facts as therein disclosed, that there was no adjudication in respect of the rights of the heirs of Susannah Osborn. The language used excludes any such idea. It was there said: “It appears, from the evidence, that Water street was ever regarded by the inhabitants of the village as extending to the river, and so used, with no pretense ever made of any private claim to the contrary, until in 1873, when Mrs. Purdy went upon the river front and fenced a portion of it, claiming title,-as her husband says, under deeds from the hens of Osborn. No deeds were shown in evidence. But supposing there had been shown deeds from Osborn’s heirs, they would have conveyed but Osborn’s interest, which, at most, could have been only a one-fifth interest, as one of the five original proprietors. But Osborn left no interest to descend and be conveyed. The acknowledgment by him, and recording of the original plat, had all the force of an express grant to convey from him the land embraced by Water street, and vest it in the corporation of the village. The corporation was the owner in fee of the village.” All this is predicated upon the assumption, fully justified by the record then before the court, that Thomas Osborn, and, through him, Collins, Morris, Tabor and Austin, were the owners of the fee when they platted the original town of Brooklyn. The premise admitted, the conclusion drawn is. logical, that Thomas Osborn “left no interest to descend and be conveyed.” That was true then and is true now. But it does not follow, that because the children of Thomas and Susannah Osborn took, by descent from their father, no interest in these premises, the same children did not inherit these premises from their mother. They did take, by descent, survey No. 764, of which their mother died seized, the fee vesting in them at her death; and upon the death of Thomas Osborn-, the right of entry and possession accrued to the children of Susannah Osborn or their grantees. Mrs. Purdy is shown to have been such grantee of a large interest in the particular premises,—accretions formed upon premises owned in fee by her grantors,—which interest she appears to have acquired prior to the suit referred to, and in which suit neither she nor her privies in estate were parties. Appellant, claiming through her, is not therefore estopped by former adjudication.

The decree of the circuit court rendered herein is in all things affirmed, except in so far as it dismissed the cross-bill of appellant, Orthwein, and rendered judgment against him for costs, as to which said decree is reversed, and the cause remanded to the circuit court, with directions to find and declare the share or interest of appellant in and to said land, under conveyances from or through the heirs of Susannah Osborn, and decree the same to him in fee, and make partition of the same accordingly, and for that purpose to permit amendments to said cross-bill or other pleadings, and to cause to be brought into court all such persons as may be deemed necessary, if any are necessary, to the proper rendition of such decree.

Decree reversed in part and in part affirmed.


author: Per Curiam :

text:
    The First National Bank of Elgin v. William Schween, Exr. et al.

      Filed at Ottawa April 3, 1889.

    1. Factor—what will constitute. Where milk is furnished by parties to a manufacturer of butter and cheese, to be made into those commodities and sold by him on their account, he will be the factor of his patrons. The fact that he is to prepare the product for market, will not render him any the less a factor.
    2. Same—factor may give guaranty as to results. The principal may, by contract, require the agent or factor to guarantee the price of all goods sold, and the factor may guarantee that the property of his principal shall realize a certain sum, and secure this by deed of trust upon his land, or by personal security.
    3. Same—factor giving his principal’s property in pledge. A factor can not pledge the goods of his principal for his own debt, and if he does so, no title will pass.
    4. Sale—not a mere bailment. Where the identical thing delivered is to be restored, though in an altered form, the contract is one of bailment, and the "title to the property is not changed; but when there is no obligation to restore the specific article, and the receiver is at .liberty to return another thing of equal value, he becomes a debtor to make the return, and the title to the property is changed,—it is a sale.
    5. Confusion of goods—burden of proof to identify property. If a party unlawfully or fraudulently mixes and confuses his goods with those of another, held by him as an agent or "factor, so that they can not be distinguished, the innocent party will be entitled to take the whole. The burden is upon the party thus confusing his goods with those of another, to identify his own property.
    6. Deed of trust—description of beneficiaries. It is not essential to the validity of a deed of trust, that the beneficiaries shall appear therein by name. It will be sufficient if they are so described or designated that they may be ascertained and distinguished.
    7. A deed of trust was given by a dairyman to a trustee, to secure all persons who might furnish milk to be made into butter and cheese, and sold by the maker on their account, but failed to state the names of the beneficiaries who were to be thereby secured: Held, that the beneficiaries were those who should thereafter furnish the factory with milk, to be made into butter and cheese under the grantor’s verbal agreement. In such case, the trust deed is a continuing offer by the maker to all persons who might patronize him.
    Appeal from the Appellate Court for the First District;— heard in, that court on appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Mr. John Woodbridge, for the appellant.
    Messrs. Sherwood & Jones, for the appellees.
   Per Curiam :

The first and principal question presented by this record is, whether Kilbourne was the owner of the butter and cheese which he delivered to Bosworth on the night of October 14, 1883, in part payment of his indebtedness to the bank. If he was, then the bank is entitled to have its proceeds applied upon the indebtedness of Kilbourne to the bank. It is contended by appellees, who were complainants in the original bill, that the butter and cheese belonged to them, and was in the hands of Kilbourne as their factor and agent, under an agreement to make and sell the same for their benefit and use. The solution of this question depends upon the contract of Kilbourne with the patrons of his factory, under which they furnished milk, the contention being, on the one side, that the •milk was sold outright by complainants and others to Kilbourne, and on the other, that the milk was delivered to him to be manufactured and sold by him for and on account of the owners of the milk.

Prior to Kilbourne’s purchase of the cheese factory at Barrington, in April, 1881, it had been operated by one McAdam, on what is known as the dividend plan, by which he received milk from the neighboring farmers and dairymen, and manufactured it into butter and cheese for them at a certain price per pound, sold the product, and after deducting his commission for making and selling, he divided the balance of the proceeds among the patrons, in proportion to the quantity of milk each had furnished. Soon after his purchase, Kilbourne had a conference with the farmers and dairymen, and agreed with them to take and manufacture into butter and cheese their product of milk, he to receive four cents a pound for the butter manufactured and two cents a pound for cheese made therefrom, he to sell the product and pay them the proceeds of the sale, less his compensation, in proportion to the amount of milk furnished by each, and gave personal security for the faithful performance of his agreement for one year. At the end of the first year, on April 4,1882, Kilbourne, together with his wife, made their certain deed of trust to Alfred Bosworth, which deed contains the following recitals and provisions:

“Whereas, said Kilbourne, grantor, is engaged in a certain cheese factory, located on said premises, in the manufacture of cheese and butter from milk furnished by sundry persons or patrons, which said cheese and butter the said Kilbourne sells from time to time, paying said patrons the proceeds of such sales as dividends, or as indebtedness for milk delivered to him; and whereas, said Kilbourne will become indebted, from time to time, to said patrons for the milk so delivered or to be delivered, and the proceeds arising from the sale of the product thereof: Now, if default be made in the payment to the patrons by Kilbourne for the milk to be delivered to him, or the proceeds arising from the sale of the product thereof, as aforesaid, for the space of sixty days from the last day of any month in which such milk shall be delivered, payment for all milk delivered by said patrons to said Kilbourne up to the date of such default shall become immediately due. * * * The dividends arising from the proceeds of the sales of the product of the milk, as aforesaid, shall be considered due and payable to the said patrons at the expiration of eighty days from the beginning of any month in which the said milk shall be so delivered.”

The witnesses George W. and W. G. Waterman, Prouty, Kingsley and Clark, were present at Kilbourne’s first meeting with the patrons of the factory, and testified, that he solicited the farmers to furnish milk to be made into butter and cheese on the dividend plan, and agreed with them to charge two cents per pound for making cheese and four cents per pound for making butter and selling the same, and that he would render honest dividends, which should be equal to, if not more than, the average dividends of surrounding factories. He refused to buy milk of a number of persons who testify, giving as a reason therefor, that if he bought of one he would have' to buy of all. There is, in our opinion, no doubt,, from the evidence, that Kilbóurne promised his patrons that he would give them as good dividends, and that the same should average with those given by other factories. It is true, some of the witnesses, speaking of this, say that he agreed they should be paid for their milk as much as was paid by other factories. This, however, is not necessarily inconsistent with the idea of paying for the milk in dividends.

The allowance of two cents a pound for cheese and four cents for butter made, for the manufacture and sale by Kilbourne, is inconsistent with the idea of an absolute purchase of the milk .by him. If he bought the milk, for cash in hand •or on credit, the product was his own, and there could have been no good reason why the vendors of the milk should have •allowed him a commission for making and selling the same. It is shown, in accordance with the theory that Kilbourne was the agent of the complainants to manufacture and sell butter and cheese for them, that the patrons called him, to an account for buttermilk he had sold, and forbid sales in the future.

If there was any doubt of the fact of the agency of said Kilbourne in the matter, the recitals in the deed of trust before mentioned ought to remove it,—that Kilbourne was “engaged in the manufacture of cheese and butter from milk furnished by sundry persons or patrons, which said cheese and butter he sells from time to time, paying said patrons the proceeds of such sale as dividends, or as indebtedness for milk delivered» to him.” And again: “The dividends arising from the proceeds of the sales of the products of the milk, as aforesaid, shall be considered due and payable,” etc., would seem to clearly indicate that he was simply the factor of the farmers and dairymen, who accepted his proposition to furnish milk upon that plan. It is true the deed of trust has a provision looking to the security of any one who might sell milk to Kilbourne, and it appears that such provision was inserted to protect a party who sold his milk outright to him, and it would seem that the fact that such a provision was inserted for the purpose, would preclude the idea that the others made sale of their milk, for he appears to have been the only person shown to have made an absolute sale. The master in chancery, the Superior and Appellate Courts, have found that the milk was furnished by complainants to Kilbourne to be made and sold on their account, as their agent or factor, and with this conclusion we agree.

It appears that before Kilbourne bought the factory, the farmers and patrons o'f this factory managed and run the business through officers or agents of their own selection. KiB bourne, claiming to have large experience in the business and to have worked up a good trade for butter and cheese, represented to such patrons that he could make better sales than any agent they could appoint, and in the arrangement finally consummated, they give him full power not only to manufacture, but to sell the entire product of the milk furnished by them.

Eli bourne claimed to be, and undoubtedly was, an expert in the production' of butter and cheese, and his relation to the milk owners brought him directly within the definition of a factor. (Wharton on Agency, 735.) The fact that he was to prepare the product for market did not render him any the less a factor. The principal may, by contract, require the agent or factor to guarantee the collection of the price of all goods sold, and the factor may guarantee that the property of his principal shall realize a certain sum.

The ease of Lonergan v. Stewart, 55 Ill. 48, is relied on, as showing that there was, under the circumstances here shown, an absolute sale of the milk. In that case it is said: “That when the identical thing delivered is to be restored, though in an altered form, the contract is one of bailment, and the title to the property is not changed; but when there is no obligation to restore the specific article, and the receiver is at liberty to return another thing of equal value, he becomes a debtor to make the return, and the title to the property is changed—it is a sale.”

If the power of sale conferred had not been given, there can be no doubt that the owners of the milk would have owned its product. In such case, the identical thing, though in an altered form, would be required to be delivered, and would be the property of the owners of the milk. As soon as the milk was converted into butter and cheese, Kilbourne’s power to sell as a factor attached, and he took the same as the agent of the milk owner, holding the title for them until a sale was effected. This may be more clearly apparent by supposing a revocation of his authority to sell. Can there be any doubt as to the legal ownership of the butter and cheese in such case ? It is true,- the manufacturer might have held it until his charges for its manufacture were paid; but, subject to his lien for his commission, it would have belonged to the party who employed him to manufacture it.

It is claimed that Church and G. W. Waterman, by taking out attachments against Kilbourne, are estopped from denying that they sold him their milk. At the time of the institution of these suits, Kilbourne was indebted to these parties for money he had received for the sale of their butter and cheese in his hands as their agent; besides this, the affidavits for attachment do not state an indebtedness for milk sold. In the Lonergan ease, supra, the affidavit alleged that the indebtedness was for corn sold. The attachment suits before referred to can not be held as concluding the plaintiffs therein.

Kilbourne, having failed in business, and being largely indebted to the First National Bank of Elgin, on the night of October 14, 1883, transferred and assigned to the bank all the butter and cheese then on hand and in the process of manufacture, as a further security and pledge for the payment of his debt to the bank. The law is well settled that a factor can not pledge the goods of his principal for his own debt, and it follows, that the bank, by taking such pledge 'Or security, acquired no title as against the real owner.

• The second point made in the case is, that the deed of trust of April 4, 1882, is void for indefiniteness as to the benefificiaries, and is, therefore, not a lien on the premises therein described. For some reason, the farmers and dairymen in the neighborhood of this factory desired some sort of security that they would be paid the dividend, in accordance with the agreement of Kilbourne, on the milk they might furnish, and to secure their custom and patronage, the deed of trust before mentioned was executed. The beneficiaries of the trust were those who should thereafter furnish the factory with milk, to be manufactured by Kilbourne under the agreement before referred to. This trust deed st.ood as a continuing offer by Kilbourne to all persons who might patronize him. Any person in the neighborhood, after the making and recording of such deed, might rely on the same, and receive the benefit thereof by becoming a patron of the factory. When we look at the inducement and purpose -of the making of the deed of trust, its object being to draw and secure the custom and patronage of any and all who had milk to dispose of, and were willing to accede to the terms proposed hy Kilbourne, it is' apparent that the intention of its maker was not to limit the deed as a security of those present when it was drawn and executed. It is not essential to the validity of a deed of trust that the beneficiaries should appear therein by name. It will be sufficient if they are so described or designated that they may be ascertained and distinguished.

It is also urged that the milk of complainants can not be traced into the butter and cheese transferred to the bank, and in support of this objection it is said that Kilbourne had butter and cheese at his factory in Dundee, and also bought on the market, and mixed the same with the product of his factory, and sold all by the same brand, so that there was no means of identifying the product of the milk of complainants. If that be •’so, and the property of complainants had been mixed with other property of like kind, without their consent, they should not be the losers thereby. The rule is, that if a party unlawfully mixes and confuses his goods with those of another, so that they can not be distinguished, the innocent party will be entitled to take the whole. The burden is upon the party thus confusing his goods with another, to identify his own property or lose it. (Diversey v. Johnson, 93 Ill. 541; Fuller v. Paige, 26 id. 358; Beach et al. v. Schmultz, 20 id. 185.) Kilbourne could convey to the bank no better title than he possessed.

Finding no error in this record, the judgment of the Appellate Court is affirmed.

Judgment affinned.

Mr. Justice Magrtjder took no part in the decision of this case.

Mr. Justice Bailey, having heard this case in the Appellate Court, took no part in its decision here.