author: Mr. Justice Scholeield

text:
    Abiah G. Webster et al. v. Annie E. Nichols et al.

      Piled at Ottawa September 27,1882.

    1. Landlord and tenant—assignment of lease by lessee contrary to stipulation—voidable only, not void. A clause in a lease that the same shall not be assigned without the written assent of the lessor, is for the benefit of the lessor only. It does not render the assignment, when otherwise made, absolutely void, but voidable only, at the option of the lessor or his representatives. ,
    2. Same—waiver by landlord of cause of forfeiture, generally—and in case of improper assignment by lessee. Any act done by a landlord, know-. ing of a cause of forfeiture by his tenant, affirming the existence of .the lease and recognizing the lessee as his tenant, is a waiver of such forfeiture. The receipt of rent subsequently accruing, from the tenant by the landlord, is such an act, and the ground of forfeiture is thereby waived. So, the acceptance of rent from an assignee or purchaser of the lessee will preclude the lessor from insisting upon a forfeiture on the ground the assignment was made without his written assent, as provided in the lease.
    3. Same—who regarded as an assignee. Where the lessee of lots, after the erection of buildings on the same, sells the buildings together with the unexpired term at the same time, and the purchaser takes possession and rents out the lots, and pays the original lessor the rent reserved in his original lease, which is accepted, such purchaser, claiming through the same estate as his vendor, whom he succeeds, is to be regarded as an assignee of the lease.

      4 Same—assignee of lease holding over, bownd to same rent. Where the assignee of a leasehold estate continues to occupy the premises after the term has expired, in the absence of any new agreement the law will bind him to the same terms by which he was bound under the expired lease.
    5. Same—subsequent sale by lessee after a prior assignment. Where a husband, as agent of his wife, purchased of the lessee of property the buildings placed thereon by the lessee, together with the unexpired term, as a single transaction, and the wife, on payment therefor, took possession of the property, and paid the rents to the lessor, the lessee can not afterward execute a bill of sale and assignment to the husband, so as to change in any manner the rights of the parties. The title having passed by the verbal sale and purchase, the lessee will have nothing to sell or assign to another.
    6. Same—sale of unexpired term by parol, when good. The holder of an unexpired term of years in land, may, by a parol agreement, pass the title or right of possession to the remainder of the term as well as the houses erected by him on the premises, when the sale is followed by actual possession, delivered and accepted in accordance wi£h the terms of such agreement.
    7. Same—covenants in lease rwnning with the land, so as to bind assignee. The covenant in a lease or deed to pay rent is one that runs with the land, and is binding on the assignee without his being specially named. So, covenants in a deed that extend to a thing in esse, parcel of the demise, and of benefit to the estate, run with the land, and bind not only the covenantor and his personal representatives by privity of contract, but also the assignee, though not named, and every other person who is in, of any estate created by or growing out of the original demise, by privity of estate.
    8. Same—covenant for lien for rent binds assignee. A covenant in a lease that the rent shall be a first and valid lien upon the buildings and improvements upon, or that may be put upon, the premises by the lessee, etc., and upon his or their interest in the lease and premises, is in the nature of security for the payment of rent. It is but an incident or accessory to the covenant to pay rent, and with such covenant to pay the rent it runs with the land, and is binding upon the assignee of the term.
    9. Same—lien for rent, by contract—upon whom binding. A lien may be reserved by stipulation in a lease, upon the lessee’s interest in the demised premises, and upon the buildings and improvements thereon, to secure the payment of the rent, and such lien will be, good and enforceable between the parties and all persons, except creditors and purchasers without notice, although the lease be not acknowledged and recorded.
    10. Where the parties, by their contract, intend tb create a positive lien or charge either upon real or personal property, whether it is then in esse or not, it will attach in equity as a lien or charge upon the particular property as soon as the assignor or contractor acquires title thereto, against the latter and all persons claiming under him, either voluntarily or with notice, or in bankruptcy.

      11. Same—lessee to pay taxes—right of lessor to charge penalty paid to redeem from tax sale. By a lease of real property the lessee covenanted with the lessor to pay all the taxes levied upon the premises, and if the lessor should pay the same, to pay him that sum in addition to the rent reserved. Having failed to pay the taxes for certain years, the premises were sold, and the lessor, two years after such sale, paid $500 penalty to redeem: Held, that the lessor could charge only the amount of the taxes for which the premises were sold, and that the covenant did not require the payment of any penalty by the lessee.
    12. Same—remedy to collect, as against assignee of lessee—jurisdiction in chancery. A court of equity has no jurisdiction of a suit by a lessor of premises, the object of which is simply to obtain a decree against a legal assignee for the rent due from him, for the reason there is a complete remedy at law.
    13. But when it is sought to enforce payment of rent of premises as against the assignee of the unexpired term by the sale of specific property, upon the ground ¿hat a lien for that purpose is reserved upon the property, —in other words, to enforce that lien, whether it is a legal or equitable one,— a court of equity will have jurisdiction.
    14. . Same—in enforcing the lien—of the adjustment as to rents received by assignee from Ms sub-tenant. Where a lessor has a lien upon the demised premises, and the improvements thereon or to be put thereon, and upon the lessee’s interest in the lease, which is valid and enforceable against his assignee, who has sublet the premises, and pending a bill by the lessor against the assignee to enforce this lien for the rents due, rents coming to the assignee have been paid into court, the court, on establishing such lien, may require the money so paid into court to be applied to the rent due from the assignee. The right to control the income, etc., of the premises, follows as a sequence from the right to enforce a lien upon them.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. William H. Barntjm, Judge, presiding.
    This was a bill in equity by John Hutchinson, as guardian of the estate of Catharine W. Haven and Alice Haven, minors, and Annie E. Nichols, in her own right, against Abiah G. Webster, Christopher C. Webster, and Seth Gage, in which, among other things, it was alleged, that prior to the appointment of Hutchinson as such guardian, said Annie E. Nichols was the guardian of said minors; that whilst she was guardian, she, in her own right and as guardian, made a lease to Seth Gage, bearing date March 20, 1868, leasing to Gage lots 9, 10, 11, 12 and 13, in Haven’s subdivision of the south part of block 3, assessor’s subdivision of the south-west fractional quarter of section 22, township 39, range 14 east, in Chicago, .Cook county, Illinois, said lease being for a term of seven years, commencing May 1, 1868, at $1500 per year, payable quarterly, together with all water rates, taxes and assessments, except special assessments for permanent improvements ; that if said Gage failed to pay the taxes and assessments, then Annie E. Nichols, lessor, might pay them, and all payments so made should be additional rent, and that the whole amount of rent should be a first lien on all the buildings that Gage might erect on the demised property, and when any rent should become due and remain unpaid for one day, then the lessor may sell, after giving due notice, all the buildings that may be erected on said leased property, and retain so much of the proceeds of such sale as to pay the defaulted rent; that it was further provided, that the lessor should have a first lien upon all the property of Gage as security for said rent, and that said lessee should not remove any buildings from said premises while rent remained unpaid, and at the expiration of said term of seven years said lease should be renewed for a further term of seven years, upon such terms as should be approved by the county court of Cook county, not exceeding six per cent on appraised valuation made at the expiration of the first term, together with water rates and taxes. Said lease was signed by Annie E. Nichols and' Seth Gage, and was binding on the heirs, executors, administrators and assigns of the parties signing; and that afterwards, Seth Gage, lessee, took possession and built ten dwelling houses on said demised premises, and during the first term of seven years all rents were paid by said Gage or assigns.

      The bill further avers, that during the first term Gage sold the said houses to Christopher C. Webster, who took full possession, and Gage also assigned his lease to Christopher C. Webster, and that after said lease was assigned said Christopher 0. Webster paid all the rents until October 1, 1877, but since that time both Gage and Christopher C. Webster refuse to pay rent; that at -the end of the first term of seven years the lease was renewed in the „way provided, and approved by the county court, at the same rental as provided for in the first lease. Avers, also, that Abiah G. Webster, who fclaims to be the owner of the houses, refuses to pay the rent; that said houses are rented for about $3500 per year; that the premises were sold for the taxesnf 1877 and prior years, and the lessee paid a penalty of $500 to redeem; that there is now due for taxes and rent an aggregate sum exceeding $7000 and interest, and upon information and belief aver that Seth Gage and Christopher C. Webster are insolvent, and the buildings are not worth more than the rent due, and upon information and belief C. C. Webster and Abiah G. Webster will move off the buildings before the rent is paid. Then follows a prayer for an accounting, for an injunction from removing the houses, for the appointment of a receiver, and that a lien upon the buildings may be established for the amount due, and for general relief. The bill was subsequently amended, by leave of court, so as to show that the houses were sold by Gage to Abiah G. Webster, who took full possession, etc., and that the lease was assigned to her.
    The joint answer of Christopher C. and Abiah G. Webster admits the making of the lease from Annie E. Nichols to Seth Gage for seven years, as alleged in the bill; that Gage took possession and built the ten dwelling houses, as alleged; that Christopher C. Webster, as the agent of Abiah G. Webster, his wife, bought from said Gage the said dwelling houses by him erected on the said premises, paying therefor the sum of $35,000, and that Abiah G. Webster went into immediate possession of said houses, and leased said houses to various tenants, but they severally deny that any valid assignment was ever made to either of them, but aver that said lease provided that no assignment should or could be made without first obtaining the written consent of Annie E. Nichols, and that said Annie E. Nichols utterly refused to give her consent to an assignment, and would not recognize such defendants as her tenants, and. gave them distinctly to understand that she accepted rent from them as Gage’s sub-tenants, and not as her tenants. They deny that any renewal of said lease was ever made to them, but at the expiration of the first term of seven years Annie E. Nichols positively refused to make any lease with them, and the county court would not recognize them as in any way parties to said lease, and would not make any lease with them; whereupon such defendants refused to authorize defendant Gage to make any lease for them, and that in making said renewed lease Gage did not act as their agept, or for them, as said defendants told Gage they did not want any lease, and would not accept any, as they were utterly ignored, both in making the renewed lease or in fixing the amount of rental; and they deny that they have accepted any assignment of the renewed lease, and no assignment has been made to them, and aver that they have never complied with the terms of the renewed lease, as they were in no manner parties thereto. They aver that they had no notice at the time of purchasing said houses, or for a long time thereafter, that the first lease gave a lien upon said buildings for the rent or for the taxes; that they never saw the lease until after the purchase, but bought said houses upon representations made by letter by Albert Gage, the son of Seth Gage, and aver that neither. the first lease nor the renewal was acknowledged or recorded. They admit that the houses rent for $3300 per year, but they do not know how much rent has accrued under said lease, but deny that they should pay the rent or are liable therefor. They aver that a suit is now pending in the circuit court of Cook county, on the law side thereof, brought by the complainants against the defendant Seth Gage, to recover from said Gage the aforesaid amount of rent, which suit is still pending, etc. They deny that either is insolvent, but aver that the defendant Abiah G. Webster is now the owner of said houses, which are now insured for the sum of $15,000, and are worth more than the insurance, and that said Abiah is entirely responsible for all liability that has accrued or may accrue upon said lease.
    By an amended answer, Abiah G. Webster alleged that the said houses belonged to her and were bought with her own money, and that as the owner of said houses she had never received any assignment of said lease, etc.
    Seth Gage answered, admitting the averments of the bill regarding the lease, erection of houses, and the assignment of the lease to Christopher C. Webster, or the renewal of said lease, and averred that Annie E. Nichols refused to renew the lease to Christopher C. Webster. And afterwards the defendants, Christopher C. Webster and Abiah G. Webster, filed a joint amended answer, by leave of the court, alleging that all and every the matters in the complainants’ bill mentioned are matters which may be tried and determined at law, and with respect to which the complainants are not entitled to any relief from a court of equity. The several answers were under oath, the oaths thereto not being waived by the bill. Proper replications were filed.
    The decree finds the averments contained in the bill to be true, and further finds that the amount due from Abiah G. Webster and Seth Gage is $7489.59, which sum is itemized, as follows: Bent, eighteen months, to February 1, 1879, $2250; taxes for 1875, 1876 and 1877, paid by A. E. Nichols, $2855.35 ; penalty on taxes for 1875 and 1876, paid by A. E. Nichols, $500; taxes for 1878 and 1874, due prior to bringing suit, and paid by the complainant John Hutchinson, September, 1879, $1356.78; interest on rents paid by A. E. Nichols, in September, 1878, $219.37; interest on rents paid by John Hutchinson, $40.67; interest on taxes paid, and on penalty, $268.42,—which said several sums, and which said total amount, to-wit, $7489.59, the court finds due, and that the same be paid within twenty days, and in default, then the money paid into court by order of court, for arid on account of rents collected by the defendant Abiah G-. Webster from the tenants in said dwelling houses, shall be paid over forthwith by the clerk of this court to said complainants, and applied as part payment on said amount found due, and the said dwelling houses and improvements upon said premises mentioned in the bill, or so much thereof as may be sufficient, after the application of said money, paid into court upon the order aforesaid, in part payment of said amount found due as aforesaid, to realize the amount so due the complainants as found by this court, and above mentioned, and interest, and also the costs of this suit, including the fees, disbursements and commissions on the sale herein mentioned, be sold at public auction to the highest bidder for cash, and that complainants may become the purchasers ; that the master, out of the proceeds of the sale, shall retain his fees, disbursements and commissions, pay costs of suit, and out of the remainder pay complainants $8983.22, less such sum as shall have been paid complainants by the clerk of this court as part payment, as hereinbefore mentioned, with interest thereon from decree to sale, and if there is a surplus, the master shall bring it into court to await the further order thereof. The master shall execute a bill of sale, and defendants in possession shall give the purchaser possession, If the houses, and money in court, do not pay the claim, complainants shall have a deficiency decree against Seth Gage and Abiah G. Webster. Enjoins defendants from removing, selling or surrendering said houses. Further decreed that the order herein entered by this court for the payment of all rents collected by said C. C. Webster or Abiah G. Webster be kept in force and continued until the full payment to the said complainants by the said defendants of the amount herein found due on said lease, and the interest thereon, or until the sale of said dwelling houses. Decrees that Abiah G. Webster shall keep the houses insured for the' benefit of complainants.
    An appeal was prosecuted from this decree to the Appel- • late Court for the First District, and, on hearing in that court, the decree of the circuit court was affirmed. The present writ of error is prosecuted to reverse that judgment. The errors assigned are:
    First—The court, under the evidence, had no equitable jurisdiction, and should have dismissed the bill for want of jurisdiction.
    Second—The decree rendered in the case is contrary to, and is not sustained by, the evidence.
    Third—The decree in said case is contrary to, and is not sustained by, the law.
    Fourth—The said decree is contrary to, and is not supported by, the law or the evidence in said case.
    Fifth—The Appellate Court for the First District erred in affirming the" decree of the circuit court, and in not reversing the same, and remanding said cause upon the foregoing errors assigned in said Appellate Court upon the record, as prayed by said plaintiffs in error in said court.
    Messrs. Swett, Bates & Haskell, for the plaintiffs in error:
    The fact that there was a written assignment of the lease to Christopher C. Webster rebuts any presumption of law that may arise from circumstances tending to show the relation of landlord and tenant between the lessor and Mrs. Webster, such as payment of rent, and occupation and use of the houses. Belford v. Terhune, 27 How. Pr. 448; Quackenbush
      v. Clark, 12 Wend. 555; Taylor’s Landlord and Tenant, sec. 429; Walters v. Northern Coal Mining Co. 5 De Gex, M. & G. 629; Cox v. Bishop, 8 id. 815; Robinson v. Roshar, 1 Y. & C. 7; Arkwright v. Colt, 2 id. 4.
    But if Mrs. Webster is a legal assignee of the lease, then the covenant that the unpaid taxes and rent should be a valid lien on the improvements to be placed upon the property in futuro does not bind the assignee, though named. Platt on Leases, 413, 414; Taylor’s Landlord and Tenant, sec. 260; 1 Smith’s Leading Cases, 137; Farwell v. Dickinson, 6 Barn. & Cress. 251; Read v. Lawnse, Dyer, 212 b; Bally v. Wells, 3 Will. 25; Mayer et al. v. Pattison et al. 10 East, 130; Allen v. Culver, 3 Denio, 284; Dolph v. White, 12 N. Y. 296.
    To constitute a valid lien upon the improvements, which arp personal property, the covenant must be in the nature of a chattel mortgage, and comply with all the requirements of the statute,—that is, be acknowledged and recorded. Munsell v. Carew, 2 Cush. 50; Otis v. Sill, 8 Barb. 111; Lanphere et al. v. Lowe, 3 Neb. 131.
    A valid charge can not be made upon a thing not in existence. Jones v. Richardson, 10 Metc. 488; Bacon’s Abridg. Grants D. 2; Cadman v. Freeman, 3 Cush. 309; 2 Kent’s Commentaries, 703; Head v. Goodwin, 37 Me. 187; Robinson v. Donelle, 5 Maule & Selw. 228; Chaynoworth v. Tenney, 10 Wis. 400; Chesley v. Josselyn, 7 Gray, 490; Rice v. Stone, 1 Allen, 569; Sheldon v. Connor, 48 Me. 584; Milliman v. Neher, 20 Barb. 37; McCaffrey v. Worden, 62 id. 316; Barnard v. Easton et al. 2 Cush. 294; Gardner v. McEwen, 19 N. Y. 123; Jones v. Richardson, 7 Neb. 138.
    The $500 penalty should not have been allowed in the decree, but only the amount of the taxes. The covenant to pay the taxes does not embrace the sum necessary to redeem from the tax sale.
    The defendants in error are not entitled to recover in equity, as they have a complete and ample remedy at,law.

      Mr. John Hutchinson, and Mr. N. A. Partridge, for the defendants in error:
    In a suit by a> landlord for rent against one alleged to be an assignee, 4he question is not whether the defendant is an assignee by a valid instrument, as between him and the lessor, but whether he has held himself forth to the landlord as such. Having all the benefits of an actual assignee, he will be estopped from denying the validity of the assignment to him. Carter v. Hammel, 12 Barb. 253; Carter v. Hammel, 18 id. 608; Glover v. Wilson, 2 id. 264; Armstrong v. Wheeler, 9 Conn. 81; Prevost v. Cutler, 2 Wend. 577; Wilson v. Leonard, 3 Reav. 373; Bedford v. Therber, 30 N. Y. 453.
    The breach of the covenant by the lessee in assigning the lease without the approval of the lessor, did not terminate the lease and revest the estate of the lessor. McGlynn v. Moore, 25 Cal. 384; Jackson v. Sheldon, 5 Cow. 448; Bleeker v. Smith, 13 Wend. 501; Roe v. Harrison, 2 T. R. 405; 5 Taunt. 249; Smith’s Landlord and Tenant, 159.
    Acceptance of rent from the assignee is a waiver of a ground of forfeiture for assigning the lease without the landlord’s consent. Ireland v. Nichols, 46 Ill. 413; Shattuck v. Lovejoy, 8 Gray, 204.
    Mrs. ’ Webster, by holding over after the renewal of the lease, ratified the renewal, and bound herself to the covenant to pay rent. Phyfe v. Wardell, 5 Paige, 268; House v. Burr, 24 Barb. 525; Cotlett v. Hooper, 11 Ves. 215; Gibbs v. Jenkins, 3 Sandf. Ch. 143; Webber v. Sherman, 13 Hill, 547; Blumerburg v. Rhodes, 32 Cal. 93; Laglamm v. Dougherty, 35 Pa. St. 45; Conway v. Starkwell, 1 Denio, 113; Deford v. Walbridge, 9 Conn. 334; Harkins v. Pope, 10 Ala. 493; McKinney v. Peck, 28 Ill. 174; Griffin v. Knowly, 15 id. 412; Voigt v. Reason, 80 id. 332; Schuyler v. Smith, 51 N. Y. 309.
    A covenant in a lease giving the landlord a “first and valid lien” upon any and all buildings erected or to be erected on the premises, is a covenant running with the land. Vernon v. Smith, 5 Barn. & Ald. 1; Allen v. Culber, 3 Denio, 284; Bally v. Wells, 3 Wil. 25; Norman v. Wells, 17 Wend. 136; Taylor’s Landlord and Tenant, secs. 260, 269, 293, 302, 332, 449.
    The lien sought to be enforced is one created by contract, and is not regulated by the statute relating to chattel mortgages. Metcalf v. Fosdick, 23 Ohio, 114.
    That a valid lien may be created upon a thing not in existence, which is enforceable when the thing is brought into existence, counsel cited Butt v. Ellitt, 19 Wall. 544; Everman et al. v. Robb, 53 Miss. 654; Halroyd v. Marshall, 10 H. L. Cas. 191; Smithers v. Edmonds, 1 McCarthy, 405; Garner v. Cutting, 32 Iowa, 553.
    As to equity jurisdiction to enforce payment of the rent in this case out of the property pledged, see Willard’s Equity, 133; Livingston v. Livingston, 4 Johns. Ch. 290; 4 McLaren, 287; Thorndike v. Arlington, 1 Ch. Cas. 79; Sturveley v. Murphy, 2 Irish Eq. 448; Benson v. Baldwin, 1 Ark. 480; Taylor’s Landlord and Tenant, 484-7; Treacle v. Coke, 1 Vern. 165.
    There was no error in including the $500 penalty in the decree. The lessor was compelled to pay that sum. Wicker v. Hoppock, 6 Wall. 99.
   Mr. Justice Scholeield

delivered the opinion of the Court:

The clause in the lease providing that the premises shall not be assigned without the written assent of the lessors, is clearly for the benefit of the lessors only. It does not render the assignment, when otherwise made, absolutely void, but voidable only, at the option of the lessors or their representatives. But even if the lessors, instead of here attempting, as they now are, to enforce rights under an assignment otherwise made, were attempting to have such an assignment declared void, they could not succeed. They have knowingly accepted rent from Abiah G. Webster since she has been in possession as purchaser from Gage, and this concludes them, for it is well settled that “any act done by a landlord knowing of a cause of forfeiture by his tenant, affirming the existence of the lease, and recognizing the lessee as.his tenant, is a waiver of such forfeiture. (1 Williams’ Saunders, 287; 2 Platt on Leases, 471; 1 Washburn on Real Property, 454.) The receipt of rent subsequently accruing from the tenant by the landlord is such an act, and the forfeiture thereby waived. (Bleeker v. Smith, 13 Wend. 530; Jackson v. Allen, 3 Cow. 220, and authorities cited by Sutherland, J. 230.) ” Ireland v. Nichols, 46 N. Y. 416. See, also, Shattuck v. Lovejoy, 8 Gray, 204; Fisher v. Deering, 60 Ill. 114.

The answer expressly asserts that Abiah G. Webster, by her husband, Christopher C,. Webster, purchased the houses, and immediately «entered into possession, and leased them, etc. The proof clearly shows that the houses and the unexpired term were sold at the same time, and as a part of the same transaction, and not separately and distinctly. Although Christopher C. Webster in his testimony denies that he had any agreement with Gage as to leasing the ground for any certain term, he nevertheless admits that when he purchased he did so with the understanding that the houses stood on leased ground which had seven years to run, with the privilege of renewal. His purchase, he says, was for his wife, Abiah, and with her money. He makes no claim to having purchased the lease for himself. He shows the payment of rent by his wife, pursuant to the terms of the lease, to the lessors, and the acceptance by them of the rent. She “claims through and is in of the same estate” as Gage, whom she succeeds, and is, therefore, assignee. Taylor’s Landlord and Tenant, see. 429; Bedford v. Therber, 30 N. Y. 453; Provost v. Caller, 2 Wend. 517; Fisher v. Deering, supra.

It is unimportant whether Abiah G. Webster is to be regarded as a party to the renewal of the lease, (as, under all the evidence, we think clearly she should be,) for inasmuch as it is proven that she continued to occupy the premises, the law binds her, in the absence of a new agreement, to the same terms by which she was bound by the old. Clinton Wire Cloth Co. v. Gardner, 99 Ill. 151; Griffin v. Knisely, 75 id. 411; McKinney v. Peck, 28 id. 174.

Since the answer sets up no claim to the term in Christopher C. Webster, but virtually concedes its sale to and purchase by Abiah G. Webster, we think the fact that Gage subsequently executed a written assignment to Christopher C. Webster of no consequence. Title passed from Gage, and to Abiah G. Webster, by the purchase and sale. He knew, Webster says, that the purchase was with her money and for her use, and so when he subsequently executed a bill of sale and assignment to Christopher C. Webster, he had nothing to sell or assign, and necessarily, therefore, nothing passed thereby. In a case of doubt the writing would probably be sufficient to settle the controversy and establish the title in the party whoffi. it designates as purchaser. But here there is no doubt. The answer settles the question to whom the sale was made, and it does not lie in the mouths of the Websters to now say that it was not made to Abiah G. Webster; and we repeat, there is no pretense that the houses were sold to one person and the lease to another, but the entire tendency of the proof, on the contrary, is, that there was but a single transaction, in which the unexpired term passed with the sale of the houses. Abiah G. Webster took possession, remained in possession during the remainder and after the expiration of the term, and paid rent for a time, and, so far as rent was paid at all, in accordance with the terms of the lease to Gage, Christopher C. Webster meanwhile claiming no possession or right of possession of either houses or ground during all that time, save as the agent of Abiah G. Webster. Surely it can need no demonstration that A, having passed his title to B, .can not, by any subsequent act, whether formal or informal, pass the same title to 0. It is, of course, understood, and to be borne in mind, that there is nothing, as regards the rights, of’the parties here contending, to prevent the passing of title or right of possession to the remainder of the term, as well as of the houses, by a parol agreement, accompanied, as the evidence here shows was the fact, by actual possession, delivered and accepted in accordance with the terms of such agreement.

Walters v. Northern Goal Mining Co. 5 De Gex, MacN. & Gord. 629, Cox v. Bishop, 8 id. 815, and Robinson v. Rosher, 1 Y. &. C. 7, cited by counsel for plaintiffs in error, are unlike the present case. In the first, a bill in equity was filed for specific performance, and the recovery of rent from a cestui que trust. In the next case, the question, as stated by Lord Justice Knight Bruce, was, “whether an equitable assignee of a legal term of years granted in mines, or mines and other hereditaments, under a reserved rent and certain covenants, is liable to be sued in equity by the lessor for rent which became due, and damages in respect of some of the covenants committed during the time that the assignee was in the possession and enjoyment of the demised property as the equitable assignee of it, which he had then ceased to be. ” In the'other case the question was,-whether, when an equitable interest has been acquired in leasehold property by a contract in the nature of an assignment, the landlord had the right to proceed in a court of equity against the assignee as if he were his tenant. As we have before seen, in the present case Abiah G. Webster is not merely an equitable assignee,—she is a legal assignee; and if the object were simply to obtain a decree against her for the rent due, a court of equity would have no jurisdiction, for the remedy at law would be complete. But the bill here is to enforce payment of rent by the sale of specific property, upon the ground that a lien for that, purpose is reserved upon the property,—in other words, to enforce that lien,—and it is this alone which is claimed to give a court of equity jurisdiction.

But the point is made that the covenant sought to be enforced does not run with the land, or otherwise bind the assignee. The covenant is as follows: “That he will pay, or 'cause to be paid, all water rates, and all taxes and assessments, except special assessments for permanent improvements, that may be laid, charged or assessed on said demised premises pending the existence of this lease, or if, at any time after any tax, assessment or water rate shall have become due or payable, the party of the second part, or his legal representatives, shall neglect to pay such water rates, tax or assessment, it may be lawful for the party of the first part to pay the same at any time thereafter; and the amount of any and all such payments so made by the party of the first part shall be deemed and taken, and are hereby declared to be, so much additional and further rent for the' above demised premises due from and payable by the party of the second part, and may be collected in the same manner, by distress or otherwise, as is hereinafter provided for the collection of other rents to grow thereon. And it is expressly understood and agreed by the said party of the second part hereto, for himself, his heirs, executors, administrators and assigns, that the whole amount of rent reserved and agreed to be paid for said above demised premises, and each and every installment thereof, shall be, and is hereby declared to be, a valid and first lien upon any and all buildings and improvements on said premises, or that may at any time be erected, placed or put on said premises by the said party of the second part, his heirs, executors, administrators or assigns, and upon his or their interest in this lease and the premises hereby demised; and that whenever and as often as any installment of rent or any other amount above declared to be deemed and taken as rent shall become due and remain unpaid for one day after the same becomes due and payable, said party of the first part, her heirs, executors, administrators, agents, attorneys or assigns, may sell at public auction," to the highest bidder for cash, after having first given ten days’ notice of the time and place of such sale in some newspaper published in the city of Chicago, all the buildings and improvements on said premises, and all the right, title and interest acquired by said party of the second part under this lease to the premises herein described, and as the attorney of the said party of the second part, hereby irrevocably constituted, may make to the purchaser or purchasers thereof a suitable and proper transfer, bill of sale or deed of the same, and out of the proceeds arising from such sale, after first paying all costs and expenses of such sale, including commissions and attorney’s fees, retain to himself the whole amount due on said lease up to the date of said sale, rendering the surplus, if any, to said party of the second part, his heirs, executors, administrators, agent, attorney or assigns, which sale shall be a perpetual bar to and against all rights and equities of said party of the second part, his heirs and assigns, in and to the property sold. ”

The general doctrine is thus stated in Taylor on Landlord and Tenant, sec. 260: “Covenants in a deed that extend to a thing in esse, parcel of the demise, and benefit the estate, run with the land, and bind not only the covenantor and his personal representatives by privity of contract, but also the assignee, though not named, and every other person who is in of any estate created by or' growing out of the original demise, by privity of estate. ” And so the same author says, in section 372, the covenant to pay rent “is a covenant running with the land, binding on the assignee, without his being specially named. ” And upon this principle it has been held that a covenant to become surety for the payment of rent runs with the land. (Allen v. Culver, 3 Denio, 284.) The covenant that the rent, etc., shall be a valid and first lien upon the buildings and improvements, etc., is in the nature of security for the performance of the covenant for the payment of rent, and is, therefore, governed by Allen v. Culver. It is hut an incident or accessory to that covenant,—not a debt or right of property, but a remedy for a debt. It stands or falls with the covenant to pay rent. That covenant runs with the land, and. this covenant is necessarily carried with it as the remedy stipulated by the parties for its enforcement. All talk, therefore, about this covenant, except as an inseparable incident or accessory to the covenant to pay rent, is out of place, because it has-and can have no existence as a separate and independent covenant.

But counsel for plaintiffs in error again contend that this lien can not be enforced, because the lease was not executed, acknowledged and recorded in conformity with the requirements of the statute relating to chattel mortgages. The question here does not affect third parties,—it is only between the lessors and the assignee of the lessees. No creditors or purchasers without notice are concerned.

We have, held in Gregg et al. v. Sanford, 24 Ill. 17, Titus et al. v. Mabee et al. 25 id. 257, and Gittings v. Nelson, 86 id. 591, that a chattel mortgage or deed of trust of chattels does not create a lien on personal property acquired or brought into existence after its execution, as against creditors or purchasers. But this does not apply to cases where only the parties to the instrument, or,them representatives, are concerned. As between them we have held a chattel mortgage is good, though not executed, acknowledged or recorded as required by the statute. Davis v. Ransom et al. 26 Ill. 100; Fuller v. Paige, id. 358; Badger v. Batavia Paper Manf. Co. 70 id. 302; Sumner v. McKee, 89 id. 127; Forest et al. v. Tinkham et al. 29 id. 141. And in Cruikshank v. Cogswell, 26 Ill. 366, in speaking of the sale of a house there in controversy, we said: "As between the parties to it, delivery was not essential to the completion of the sale of the house. It was competent for the parties to agree at the time of the sale that the seller might retain possession of the house as long as he pleased, and upon any consideration which suited him, and no one but a creditor of, or purchaser from, the seller could take advantage of the non-delivery to the purchaser. ” See, also, to like effect, Corgan v. Frew, 39 Ill. 31.

It was said by Story, J., in Mitchell v. Winslow, 2 Story, 630: “It seems to be the clear result of all the authorities, that whenever the parties, by their contract, intend to create a positive lien or charge, either upon real or personal property, whether it is then in esse or not, it attaches in equity as a lien or charge upon the particular property as soon as the assignor or contractor acquires a title thereto, against the latter, and all persons asserting a claim thereto under him, either voluntarily or with notice, or in bankruptcy. ” See, also, Morrill v. Noyes, 56 Me. 458; Silbus v. Lester, 48 Miss. 526; Everman et al. v. Robb, 52 id. 653; Benjamin v. Elmira, etc. R. R. Co. 49 Barb. 441; Seymour v. C. N. F. R. R. Co. 25 id. 286; Page v. Gardner, 20 Mo. 507; Wright v. Birch’s Exr. 72 id. 179; Garner v. Culting, 32 Iowa, 547.

Without taking time to examine cases holding, or seeming to hold, a contrary doctrine, we deem it sufficient to say that, as applied to the facts of the present case, the language quoted from Mr. Justice Story is, in our opinion, perfectly accurate. In Butt v. Ellett, 19 Wall. 544, a lease of a plantation was executed for one year. The lessees gave their note for the rent, and to secure the payment of the note a clause was embodied in the lease mortgaging all the crops to be raised on the plantation for the current year. The court said: “The mortgage clause in. the contract of lease of the 15th of January, 1867, executed by Silber and Graham, could not operate as a mortgage, because the crops to which it relates were not then in existence. When the crops grew the lien attached, and bound them effectually from that time. * * * Ellett having bought the premises, became clothed with all the rights of Silber touching the rent stipulated to be paid by Graham. The sheriff’s deed conveyed the reversion, and the rent followed it as an incident. The lease passed by assignment to the grantee, and all its provisions in favor of the lessor inured to the benefit of the assignee. ” The case seems quite analogous to the present case, and well illustrates the controlling principles.

It being competent for the parties to covenant for this lien, and the lien being valid as well against the assignee as the lessee, the next inquiry is,, can it be enforced in.a court of equity, or is the remedy solely at law ? And in regard to this there can be no doubt". Story, "in his work on Equity Jurisprudence, vol. 1, sec. 506, says: “Liens also give rise, to matters of account; and although this is not the sole, or, indeed, the necessary, ground of interference of courts, of equity, yet, directly or incidentally, it becomes "a most important ingredient in the remedial justice "administered by them in cases of this sort. * * * A lien is not in strictness either a jus in re or a jus ad rem, but it is simply a right to possess and retain property until some charge attaching to it is paid or discharged.” And after specifying instances in which liens attach, the author proceeds: “Now, it is obvious that most of these cases must give rise to matters of account, and as no suit is maintainable at law for the property, by the owner, until the lien is discharged, and as the nature and amount of the lien often are involved in great uncertainty, a resort to a court of equity, to ascertain and adjust the account, seems in many cases absolutely indispensable for the purposes of justice.” See, also, same authority, sec. 1217; Bispham’s Principles of Equity, (2d ed.) p. 419.

Waiving the question whether the lien "here is to be regarded only as an equitable lien, we are of opinion. there was such necessity for the taking of an account as brought the case within that branch of the court’s jurisdiction.

Objection is urged that the court erred in applying the money in court to the payment of the indebtedness. We see no error in this. ' The right to control the income,' etc.,- of the premises, follows as a logical sequence from the right to enforce a lien' upon them. If from the income the rent could be paid, no sale should be ordered.

We are of opinion, however, that the court below erred in decreeing the payment of the penalty on taxes for two years ($500). The covenant binds the lessee to the payment of no penalty, but of the taxes only. The consequence of failure, in that regard, the covenant declares to be, that it shall be lawful for the party of the: first part to pay the same, and' thereby the amount so paid shall be so much additional and further rent, for the payment whereof the lien just considered is' given. When the lessee did not pay, the lessor should.have paid, both for the protection of his reversionary interest and in order to charge the lessee with the amount, by virtue of the covenant. It was his own neglect and folly that he permitted judgment against the property, and sale for the non-payment of taxes.

The- decree below will be reversed, with direction to the court below to strike out so much as is for penalty for nonpayment of taxes, and in all other respects it will be affirmed.

Decree modified.


source: Caselaw Access Project

author: Mr. Justice Dickey

license: Public Domain

text:
    McKinney, Gilmore & Co. et al. v. The Farmers’ National Bank of Keithsburg et al.

      Filed at Ottawa September 27, .1882.

    1. Lien—attachment of property fraudulently conveyed—priority over creditor having fraudulent sale set aside. Creditors have the right to treat conveyances of their debtors made to hinder, delay or defraud them, as void, and their election to treat them as void is shown by attaching the property so ■conveyed, and snch attachments, when levied, will become a lien upon the property with the same effect as if no fraudulent conveyances had been made.
    2. By the levy of an attachment upon lands which have been fraudulently conveyed, for the debt of the grantor, the attaching creditor acquires a lien which is not disturbed by a decree in chancery setting aside the fraudulent conveyance, and subjecting the property to sale, for the payment of a judgment recovered by another creditor after the levy of the attachment. The levy of the attachment, before the recovery of judgment by the other creditor and the filing of his bill, creates a prior lien on the property.
    Appeal from the Appellate Court for the Second District;— heard in that court -on writ of error to the Circuit Court of Mercer county; the Hon. John J. Glenn, Judge, presiding.
    Patterson, being the owner of real estate in Knox county, conveyed the same fraudulently for the purpose of delaying and hindering his creditors. Afterwards appellees sued out attachments in suits in Mercer county, brought against Patterson, and caused the writs of attachment to' be levied specially upon the lands, as the property of Patterson, thus fraudulently conveyed by Patterson, the defendant. After this, appellants recovered judgment against Patterson in the circuit court of Mercer county, at the March term, 1877, and caused execution to be issued to Knox county, and to be levied upon these same lands, as the property of Patterson, on June 1, 1877, and on July 23 filed their bill in the circuit court' of Knox county, against Patterson and his grantees, seeking to have, the conveyance by Patterson set aside as made in fraud of creditors, and. to subject the lands to salé under their judgments. After this, and at the November term, 1877, áppellées recovered judgments in their suits against Patterson, in Mercer county, and on January 9,1878, sued out special executions to sell these lands in Knox county, on which their attachments had been levied in August, 1876. These special executions were levied March 30,1878, and the lands' advertised for sale.
    In July, 1878, Matilda Patterson, one of the grantees of Patterson, filed a bill against appellees, in the circuit court of Knox county, to enjoin the sale of these lands, and a tem"porary injunction was granted. Appellees answered, but filed no cross-bill, nor were they made parties to the bill of appellants above.
    ■ In October, 1878, by agreement of all the parties, the chancery cases were consolidated, and heard together. On hearing, the conveyances were set aside as fraudulent, and the lands were sold, and the only question presented in this ' case relates to the alleged priority of the appellants, as creditors, in the fund arising from the sale. The circuit court decreed that the moneys arising from the sale should be distributed .amopg these creditors pro rata, according to the .amount of their .respective judgments, recognizing no priority un appellants. This was affirmed, by the Appellate Court, and appellants bring the record here, seeking to reverse that judgment.
    Messrs. Peppeb & Wilson, for the appellants: -
    The fraudulent conveyance not being void, but only voidable, there was no estate in the debtor upon which an attachment could become a lien. That could be done only in equity, by a bill to set aside the conveyance. It is the filing-of a creditor’s bill, and the service of process therein, that can give a lien. Freeman un Judgments, sec. 350; Boeb v. Woodward, 50. Mo. 101; Harrison v. Kramer, 3 Iowa, 560; Edmeston v. Ridde, Exr. etc. 1 Paige, 636; Corning & Norton v. White, 2 id. 567; Lyons et al. v. Robbins, 46 Ill. 277; Rappleye v. International Bank, 93 id. 397; Miller v. Sperry, 2 Wall. 237; Tilford et al. v. Burnham et al. 7 Dana, 110.
    Where a man makes a fraudulent conveyance, and dies, he leaves nothing for his heirs, and his administrator can not sell the land so conveyed to pay his debts, though contracted prior to his conveyance. Choteau v. Jones et al. 11 Ill. 319; Le Moyne et al. v. Quimby et al. 70 id. 405; White v. Russell et al. 79 id. 155.

      Mr. B. C. Taliaferro, for the appellees:
    The levy of an attachment upon land fraudulently conveyed, gives the attaching creditor a lien upon the same, under our statute. People v. Cameron, 2 Gilm. 468; Pearson v. Ruble, 3 Scam. 139; Martin v. Dryden, 1 Gilm. 187; Pearl v. Wellman, 3 id. 311; Bruen v. Niles, 16 Ill. 385; Jones v. Jones, 16 id. 117; Hall v. Gould, 79 id. 167.
    The cases cited are where .the creditor had, through a court of equity, sought and discovered property which he had before been unable to discover and seize upon by execution at law, in which case he has a preference over other creditors. In this case appellants waited until the property was discovered by the superior diligence of these attaching creditors, after which they filed their bill to subject it to sale under their executions.
    By the levy of an attachment a lien is created, which nothing can destroy but the dissolution of the attachment. Drake on Attachments, 171; Gould v. Steinberg, 84 Ill. 171; Hall v. Gould, 79 id. 16; Warner v. Insurance Co. 16 id. 117; Rev. Stat. 1874, p. 154, sec. 9.
    The statute provides that an equitable as well as the legal interest in land can be sold under attachment. Rev. Stat. 1874, chap. 11, sec. 8; Ferrer v. Payne, 73 Ill. 82; West v. Schnebly, 54 id. 523.
   Mr. Justice Dickey

delivered the opinion of the Court:

The statute says such fraudulent conveyances shall be held void as against creditors. Creditors have the right to treat such conveyances as void. The moment appellees levied their attachments specially upon these lands, as the property of Patterson, their election to treat the former conveyances as void was declared, and such attachments became a lien against the lands with the same effect as if the fraudulent conveyances by Patterson had never been made. It follows that afterwards, when appellants applied to the court of chancery to set aside these conveyances, they did not disturb the prior lien of appellees. The interest of Patterson in this land had been discovered by appellees, and seized long before the filing of the bill of appellants. Appellants surely have no ground to . complain of this decree. The appellees have, much better grounds for claiming priority than appellants.

The judgment of the Appellate Court is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey Per Curiam :

text:
    Sarah Pinneo et al. v. Francis Goodspeed, Exr. et al.

      Filed at Ottawa November 10, 1881

      —Modified, and re-filed'Sept. 27,1882.

    1. Evidence—attaching judicial proceedings collaterally—relevancy. On bill by a husband to compel his divorced wife to' restore a conveyance of her land to him, which she had surreptitiously taken from him, and cross-bill by her to set aside such conveyance, on the ground it was procured through the fraud, imposition and treachery of her solicitor in the divorce suit against her, acting in collusion with her husband, testimony tending to show the propriety of the decree of divorce is irrelevant and improper.
    2. Fraud—as between husband and wife—procuring conveyance of wife's land by fraud—effect of adultery on the part of the wife. A married woman and her brother, having acquired certain lands by descent, each a moiety thereof, partitioned the same by mutual conveyances, the husband by her consent taking a conveyance from her brother for one-half of a three hundred acre farm, leaving her the owner of the legal title to an undivided half thereof, and the equitable owner of the other half. Pending a suit against her by the husband for a divorce, he obtained her conveyance of the premises through fraud, and the imposition and treachery of her solicitor acting in collusion with him, which deed the wife afterward surreptitiously obtained, and refused to surrender: Held, that a hill by the husband for a restoration of the deed was properly dismissed, and the wife properly restored to her title on cross-bill to set aside her conveyance to her husband, and have the title to the land confirmed in her. The fact that the wife may have committed adultery did not deprive her of her property rights, or the right to protection against the fraudulent action of her husband.
    3. Administbatios of estates—application of rents and profits arising from lands belonging, in equity, to a third person. Where a deed from a wife to her husband has been set aside as having been obtained by fraud, and the title to the land found to have been, in equity, all the time in the wife, subject to a mortgage given by her and her husband, and his rights growing out of the marriage relation, during his lifetime, his executors will have no authority to apply the rents and profits of such land accruing after his death to their own use, or in payment of the general creditors of the estate. After the death of the husband the rents and profits belonged to the wife, subject to the rights of the holder of the mortgage to have them applied on the mortgage.
    4. Same—power of executor with condition attached—as to payment of debt under direction in will. In such a state of case, where the husband, by his will, directed the payment of the mortgage debt'out of the income to be derived from the land, it was held to be the duty of his executors to pay the debt out of assets of the estate, whether it was allowed or not by the county court. The direction by the testator to pay the debt was a recognition of the justness of the claim, and if the direction to pay was coupled with a condition that could not be legally performed, the condition should be rejected, leaving the direction to pay absolute.
    5. Same—debt of testator created in purchase of outstanding dower right in wife’s land—mortgage by husband and wife on her land to secure the same—primary liability of husband’s estate. Where a husband has a freehold estate as tenant by the curtesy initiate in his wife’s land, subject to a dower interest in the widow of the wife’s deceased father, and to extinguish which dower interest he gives his note to the dowress, secured by a mortgage from him and his wife on the same land, the mortgage debt will be that of the husband, and not that of the wife, and his estate is the primary fund for its payment, although his life estate in the land may have been terminated by his death, and the wife’s estate in the land, as between her and his legal representatives, will be treated-as only secondarily liable.
    6. Mobtgages—application of rents and profits—party treated as mortgagee in possession. Where a husband and wife give a mortgage to secure a debt of the forrner, upon her land* and the husband dies, whereby his life estate in the land is terminated, the rents and profits accruing therefrom after his death will belong to the wife, until the mortgagee interposes and appropriates the same; and where the executor of the deceased husband procures an assignment of such mortgage for her use and benefit, all rents and profits received by her afterward should be applied from year to year upon the mortgage debt, less the taxes and necessary repairs, as with a mortgagee in possession.
    7. Pabties—on bill for account of rents and profits by mortgagor against assignee of mortgagee. After the-giving of a mortgage by a husband and wife upon the land of the latter for the debt of the former, he obtained a divorce from the wife, and again married. After his death, his widow, who was also one of his executors, and in possession of the land, procured an assignment of the mortgage debt to one in trust, for her use: Held, that the widow, both as executrix and mortgagee in possession, and her trustee, the legal holder of the mortgage debt, were not only proper but necessary parties to a bill by the former wife and owner of the land for an account of the rents and profits of the land since the death of the husband, and that it was error to dismiss a supplemental bill making such persons parties, when the change in interest occurred after the filing of the original bin.
    8. Pleading—striking out irrelevant and impertinent matter. The object of a pleading of any kind is to state the facts upon which the rights of the parties depend, and nothing more. When a bill in chancery contains irrelevant and impertinent matter, such as mere legal arguments and reasons occurring to counsel why this or that step should or should not be taken, and the violation of the- rule of pleading is palpable and gross, the court itself will direct that the irrelevant and impertinent matter be eliminated.
    9. Pleading and evidence—relief in chancery must be warranted by the pleadings. It is a familiar rule of chancery practice that no relief will be decreed which is not warranted by the general scope of the pleadings.
    10. A husband obtained a decree of divorce against his wife, in which proceeding she was allowed $500 per annum alimony. In that proceeding the husband, through fraud and imposition, and the treachery of the solicitor-of the wife in the suit, who was acting in collusion and concert with the husband, procured from her a conveyance of her farm of three hundred acres of land. On discovering the fraud she filed her bill to set aside the agreement and conveyance by which her husband acquired title to her lands, but in it did not seek to impeach the decree of divorce and alimony. It was objected that it was inequitable tó set aside the conveyance and permit the decree for alimony to stand: Held, that in the absence of anything in any of the pleadings seeking such relief, the court was justified in refusing to disturb the decree for alimony. The seeking of her rights in respect to her property did not affect at all the binding force of the decree for divorce and alimony.
    Appeal from the Circuit Court of Will county; the Hon. Josiah McRobeets, Judge, presiding.
    Messrs. Babbeb & Randall, for the appellants:
    Knox in equity holds subject to all the equities of the mortgage. Olds v. Cummings, 31 Ill. 188.
    Knox has no interest in the case, and can not recover in his own name in a court of equity, which will not recognize the statute, to do injustice. Such right did not exist at the common law. Herrick v. Cameron, 10 Johns. 224; Gunn v. Cantine, 10 id. 387; Shear v. Mallory, 13 id. 496; Chitty’s Pleading, 3.
    In equity the complainant must be a person having an interest in the subject matter. Barbour on Parties, 101; Story’s Equity Pleading, secs. 23, 262, 178, 227, 514; Conger v. Halliday, 11 Paige, 314; Daniell’s Chancery Practice, 314, 321, 322; Winkleman v. Kiser, 27 Ill. 22; Dix v. Mercantile Ins. Co. 22 id. 276; Jones v. Goodrich, 17 id. 380.
    So far has this principle of the necessity of interest been carried, that it has been decided that making a person party who appears to have no interest, is bad on demurrer. Roby v. Cossitt, 78 Ill. 644.
    Another point was quite as earnestly made, and is now insisted upon: that a party acting in a fiduciary capacity can not deal with the thing to his own profit. Devon v. Fanning, 2 Johns. Ch. 255; Phelps v. Reeder, 39 Ill. 176; Railroad Co. v. F. L. and T. Co. 49 id. 347; Railroad Co. v. Kelley, 77 id. 432; Ogden v. Larrabee, 57 id. 402; Nelson v. Hayner, 66 id. 493; 4 Kent, 438; Michaud v. Girod, 4 How. 553.
    If Mrs. Fargo accepts under her husband’s will, she is bound in equity to perform its conditions. If she is, then when Goodspeed paid her money to the mortgagee he satisfied the mortgage, and a release should have been taken,— not an assignment. But she was not only bound to pay this mortgage by the will, but by the law, as executrix. It was O. T. Fargo’s debt. He undertook to pay it in consideration of having the title and profits of the land. The Supreme Court has decided he held the title in trust for appellant. But he received rents and profits sufficient to pay the mortgage several times over, and the executor and executrix have, since his death, received rents sufficient to satisfy the mortgage, and it was their duty to have paid it off. The decree is, that the receiver pay over the moneys received by him for rents, etc., to Augustus F. Knox, etc. Yet Knox is not a party to this suit, and the supplemental cross-bill was for the express purpose of making him a' party and adjusting his equities. Spear v. Campbell, 4 Scam. 404; Prentice v. Kimball, 19 Ill. 320.

      ' Those rents belong to the owner of the land, and not to the executors. Kohler v. Knapp, 1 Bradf. (N. Y.) 241; Stinson v. Stinson, 38 Me. 693; Foltz v. Prouse, 17 Ill. 487; Haslage v. Krugh, 25 Pa. St. 97.
    Messrs. Gaensey & Knox, for the appellees:
    The agreement of October 25, 1870, will he enforced in a court of equity, though made between parties who at the time were husband and wife. The only question is, was it, under the circumstances, fair and equitable ? Bishop’s Law of Married Women, secs. 719, 604, 712; Story’s Eq. Jur. secs. 1368,1372; Livingston v. Livingston, 2 Johns. Ch. 537; Todd v. Wickliffe, 18 B. Mon. 866; Dale v. Lincoln, 62 Ill. 26; Hunt v. Johnson, 44 N. Y. 31.
    The quitclaim deed of January 23, 1868, from E. G. Haaf and Sarah Ann Haaf (designated as a partition deed) to Fargo, created no trust estate in Fargo for the use of his wife, within any definition of a trust estate. It was not express, or implied, or a resulting trust, or a constructive one. Perry on Trusts, secs. 24, 25, 26, 27, and secs. 168, 140; Williams v. Brown, 14 Ill. 200; Holmes v. Holmes, 44 id. 168; Bib v. Smith, 12 Heisk. (Tenn.) 728; Lux v. Hoff, 47 Ill. 427; Bragg v. Geddis et al. 93 id. 58; Moss v. Moss, 95 id. 451; Byres v. Danley, 27 Ark. 77; Hays v. Quay, 68 Pa. St. 263; Perry on Trusts, sec. 140; Osborn v. Osborn, 29 Stewart, (N. J. Eq.) 387; Hunt v. Moore, 6 Cush. 2.
    The judgment of a court, rendered where it has jurisdiction, can not be attacked in a collateral proceeding. Clark v. Thompson, 47 Ill. 25; Conover v. Musgrave, 68 id. 60; Wemberly v. Hurst, 33 id. 172.

      If this property, or any portion of it, should be adjudged to belong to Sarah, still, Fargo, as tenant 'by the curtesy initiate, had a right to receive the rents and profits while they were husband and wife. The act of 1861 did not deprive him of this estate, and such rents were received by him with her full knowledge and consent. She nowhere alleges, or attempts to prove, that they were not so received with her full consent. Carpenter v. Davis, 72 Ill. 19; Kohn v. Wood, 82 id. 220.
    The executors would not be responsible for any rents received by Fargo in his lifetime, for no such rents came into their hands, in fact. As to such rents, she would be a general creditor of the estate, if anything. Trecothick v. Austin; 4 Mason, 29; Johnson v. Ames, 11 Pick. 181; Bump on Bankruptcy, (6th ed.) p. 392; School Trustees v. Irwin, 25 Ill. 75.
    And they could not be held for the amount of the rents paid out by them under the order of the county court, for they held this property as trustees under the will, and were bound to assume the validity of the trust until it was actually impeached. Perry on Trusts, sec. 433; Beddoes v. Pugh, 26 Beav. 407.
   Mr. Justice Mulkey

delivered the opinion of the Court:

On the 16th of December, 1870, Orange T. Fargo obtained a decree for divorce, in the circuit court of Cook county, against his wife, the present complainant in the cross-bill, she having subsequently intermarried with John B. Pinneo, her present husband. Through the fraud and treachery of her attorney, Heman H. Hafir, .in conducting the divorce suit and settling the question of alimony, Fargo obtained the legal title to a valuable farm in Will county, consisting of three hundred acres, which his wife had acquired by descent from Horace Haff, • her deceased father. Shortly after the rendition of the decree, Mrs. Fargo, upon discovering the faithlessness of her attorney, went to the house of her late husband, and in his absence, and without his permission, obtained possession of the deed conveying to him the above mentioned premises, which, through the fraud and imposition of hef attorney, and husband, she had unconsciously been induced to execute. By the decree in the divorce suit Fargo was required to pay his divorced wife, in quarterly installments, the sum of $500 per annum as alimony, and this is the only provision that was made for her. Upon her refusal to surrender the deed obtained from her in the manner stated, Fargo, on the 7th of January, 1871, filed, in the Will county circuit court, the original bill in this cause, by which he seeks to compel her to restore the deed executed by her to him, and in the event of its destruction, or her inability to produce it, to make a new one.

It appears from the record that Horace Haff left, at the time of his death, Sarah Ann Haff, his widow, and two children, Edwin G:, and Sarah, wife of Fargo, his only heirs, and that he was the owner of other valuable lands besides the three hundred acre farm, and that a partition of these lands was effected by means of mutual conveyances between the heirs. At the request of Fargo, and with the consent of his wife, Edwin G. conveyed his half interest in the farm to Fargo instead of his wife, so that at the time of the commencement of the proceedings for, a divorce Fargo already held the legal title to one-half of the farm, while the entire' equitable, and the legal title in the other half, were in the wife. It further appears, that in equalizing the partition between the heirs, and in adjusting the widow’s claim for dower in her husband’s estate, Fargo assumed the payment to her of $2000, which was secured by a mortgage executed by him and his wife on the farm.

Such was the condition of the premises with respect to the title and incumbrances at the time of the execution of the deed sought to be restored by the original bill in this case. To this bill Mrs. Fargo filed an answer, admitting having taken the deed, and set up in justification of the act the fraud and collusion between the complainant and her attorney, through which it was obtained, and also filed a cross-bill setting up the same facts, and asking that the deed in question be set aside as fraudulent and Ovoid, and that the title to the whole-of the premises be confirmed in her, and that Fargo be compelled to make the necessary conveyances for that purpose. On the hearing the circuit court denied the relief sought by the cross-bill, and rendered a decree in conformity with the prayer of the original bill. From this decree Sarah Fargo prosecuted an appeal to this court.Pending the appeal, Fargo died, and his executors, Francis Goodspeed and Elizabeth M. Fargo, were substituted as parties, the latter being the widow of the deceased,- Fargo having married her a short time after the decree in the divorce suit. The appeal was heard at the September term, 1877, of this court, resulting in a reversal of the decree of the circuit court, "and a remanding of the cause for further proceedings, and the case is reported in 87 Ill. page 290, where will be found a full statement of the facts, and hence it is not necessary to repeat them here.

While much additional testimony has been taken since the cause was remanded, yet upon the main question we do not perceive any material change in the legal aspect of the case, as expressed in ofir former opinion. Most of the additional testimony introduced by complainants in the original bill seems to be offered with a view of showing there was sufficient evidence to authorize the decree in the divorce suit. This is a misapprehension of the scope and purpose of the cross-bill. The gravamen of the complaint in the cross-bill is not so much that Mrs. Fargo was without sufficient cause divorced from her husband, as it is that in the conducting of that’suit she was the victim of treachery and fraud on the part of her attorney, acting in collusion with the complainant in the suit, by means of which she was, without any consideration, deprived of a valuable estate. She does not seek to set aside that decree so far as the divorce is concerned, but she does ask that her estate, thus fraudulently obtained, be restored to her. The fact that a married woman may have committed adultery does not give the husband a title to her lands, or authorize him to resort to fraudulent means to obtain them. It may, therefore, for the purposes of the argument, be conceded that the charge of adultery in the divorce suit is fully sustained, and yet it does not afford the slightest justification of the husband and her faithless attorney in obtaining from her the conveyance of her farm in the manner they did. That her attorney, Haff,-was, throughout the divorce proceeding, acting entirely in the interest of the husband, with his knowledge and approval, does not, in our judgment, admit of the slightest doubt. And such being the fact, we know of no principle upon which the transaction can be sustained in a court of equity.

Upon a second hearing of the cause, the circuit court, in conformity with, the views expressed by this court on the former hearing, found the equities, both upon the original and cross-bill, with Mrs. Pinneo, and entered a decree accordingly. This decree, after having fixed the rights of the parties, referred the cause to the master for the purpose of taking an account of the rents and profits of the premises during their wrongful detention by Fargo’solegal representatives. Subsequently, and before the final order in the cause, Mrs. Pinneo and her husband filed a supplemental cross-bill, making Mrs. Elizabeth M. Fargo, Francis Goodspeed, and Augustus F. Knox, parties, which charges, in substance, that Fargo, by his will, directed the payment of all his debts, and especially the payment out of the rents and profits of the land, thé alimony awarded Mrs. Pinneo in the divorce suit; that by the will he specifically devised to his wife a policy of insurance on his life for $5000, all of which, with the exception of a small sum, she subsequently collected and appropriated to her own use; that no part of the rents-and profits of the land have been applied to the payment of the alimony since the remanding of the cause from this court; that while Mrs. Fargo and Goodspeed, as executors of the will, have made partial payments to other creditors jof the estate, nothing has been paid on the $2000 mortgage given to the widow of Horace Haff in satisfaction of her dower; that a part of the rents and profits of the land was paid out, under the order of the county court, to other creditors; that Mrs. Fargo, instead of paying off the $2000 mortgage, as she was bound to do under the directions of the will, purchased the same through Goodspeed, her co-executor; that the same was purchased by her with the proceeds of the insurance policy; that Sarah Ann Haff assigned the mortgage to Goodspeed on the 14th of April, 1875, Goodspeed assigned to Elizabeth Fargo on the 25th of -the same month, and the latter to Knox on the 9th of December, 1877, and that Knox is now proceeding to foreclose the same for the benefit of Mrs. Fargo. The bill requires an answer under oath, and seeks a discovery of the amount of assets received by the executors, of what they consist, and how they have been disposed of, and prays for an injunction restraining Knox from the further prosecution of the foreclosure suit until the equities of all the parties can be settled in the present suit.

Subsequently, on the 10th of March, 1881, a more elaborate decree was entered in the cause, covering the same ground of the former decree, and not materially variant from it, except the latter decree dismisses the supplemental cross- . bill, and also directs that the rents of the farm then in the hands of the receiver be paid over to Knox. From this decree both parties have appealed to this court. ■ The executors complain of the decree upon the original and cross-bills, arid Mrs: Primeo complains of the action of the court in dismissing without a hearing the supplemental cross-bill.

The decree, so far as it relates to the original and cross-bills, as we have already seen, is in conformity with the views of this court as expressed in the former opinion in the case, and the court being still satisfied of their soundness, it follows, the exceptions to the decree to that extent are not, in our opinion, well taken. It only remains, therefore, to determine whether the court erred in dismissing the supplemental cross-bill.

The conclusion having been reached that the farm has all' the time, in equity, belonged to complainant in the cross-bill, subject to the mortgage, and the rights of Fargo growing out of the marriage, during his lifetime, it follows, the executors had no authority to apply the rents and profits accruing after the testator’s death to their own use, or in payment of the general creditors of the estate. After his decease they clearly belonged to her,.subject to the right of the mortgagee or her assigns to have them applied in satisfaction of the mortgage. But until the mortgagee or her assigns took some legal steps to have them thus applied, they belonged to Mrs. Pinneo. Fargo, at the time of the execution of this mortgage, had a freehold estate, as tenant by the curtesy initiate, in the premises, which, by the common law, is one species of life estates. The freehold being in Fargo, it was necessary to its full enjoyment that the dower of Horace Half’s widow should be in some manner extinguished, and to accomplish this object he gave to her his note for $2000, secured by a mortgage on the premises. It is to be noted this right of dower did not necessarily affect the inheritance in the wife, and at the time of the transaction it was altogether uncertain whether it ever would affect her interest. Whether it would or not, depended upon whether Mrs. Haff, the dowress, would survive Mrs. Fargo, the owner ■ of the reversion, which, in the natural course of events, might or might not be. It will thus be seen that the mortgage debt was not only his, in the strictest sense of the term, but it was created mainly for his benefit, and hence his own estate was the primary fund out of which it should have been paid. She and her estate should, therefore, as between her and his legal representatives, be treated as only secondarily liable. It follows, therefore, that all rents and profits, after his death, in excess of taxes, necessary repairs, etc., in equity belonged to appellant, and should have been paid by the executors to her, for it is well settled that until the mortgagee interposes, the rents are payable to the mortgagor, and if this was not done, inasmuch as the mortgage now belongs to Mrs. Fargo, one of the executors, it must, in adjusting the account between her and Mrs. Pinneo, be treated as having been paid on the mortgage debt at the time the rents became due. The mortgage having been assigned to Goodspeed, for the use of Mrs. Fargo, on the 14th of April, 1875, she should from thence until the appointment of a receiver be treated as mortgagee in possession, and should account for the rents and profits accordingly, and they should be applied from year to year, as they accrue, less the taxes, necessary repairs, etc., upon the mortgage indebtedness.

It is evident from this statement, that Mrs. Fargo, both in her character as executrix and mortgagee in possession, and Knox, her trustee, were not only proper, but necessary, parties to the statement of the account. Most of these complications and changes of interest occurred after the filing of the original and the cross-bill, and we are of opinion it was proper to bring all the parties interested in the statement of the account before the court, and this could only be done by a supplemental bill. The impropriety of proceeding without such a bill is clearly shown by ordering the amount of rents on hand to be paid to Knox, who, after the dismissal of the supplemental cross-bill, was not a party to the suit, and hence was not bound by the statement of the account, or any of the proceedings in it. While the evidence shows the mortgage was assigned by her to Knox, it also appears that it was without consideration, and that he is simply her trustee, he having no personal interest in the matter whatever.

- The statement of the account by the master is not sufficiently specific or comprehensive, nor does it seem to have been prepared with reference to -the legal rights of the parties affected by it. Fargo’s estate, as we have already seen, is primarily liable for the whole of the mortgage debt. If the estate is insolvent, as is claimed by the executors, this debt must be paid pro rata with other debts of the same class. If other creditors have already received more than their shares upon a pro rata basis, then a sufficient amount should be paid on this claim to place it upon the same footing with other claims of the same class. Should the assets of the estate be thus exhausted in the payment of its debts, whatever, if anything, remains unpaid of the mortgage debt must be satisfied out of the rents and profits of the land in the hands of the executors, and the residue, if any, must be paid to Mrs. Pinneo. If, on the other hand, they should prove insufficient for that purpose, the mortgaged premises would, as a last resort, be liable for the deficit, whatever that might be. These are the general principles controlling the rights of the parties, and the account should be so stated as to enable-the court to properly apply them.

What is here said, of course, is based upon the facts as already found by the court, and the additional facts as set forth in the supplemental bill, which, for the purposes of the question in hand, must be treated as true. So much of the decree, therefore, as directs a dismissal of the supplemental cross-bill, and approves of the report of the master, and directs the accumulated rents and profits of the premises to be paid to Knox, is reversed, but is in all other respects, except so far as it may be modified by what we have already said, affirmed, and the cause is remanded, with directions to the court below to refer the cause again to the master for the purpose of restating the account, and for further proceedings in conformity with the views here expressed. Upon the filing of the remanding order, the court below is .further directed to require counsel for Mrs. Pinneo to eliminate from the supplemental cross-bill the vast amount of irrelevant and impertinent matter therein contained. Upon examination of it we find that it fills some thirty pages of the abstract, and that at least three-fifths of it consists of impertinent and unimportant matter. The object of a pleading of any kind is to state the facts upon which the legal rights of the parties depend, and nothing more, and to inject into one, as was done in this case, a mere legal argument, and the numerous reasons which occur to counsel as why this or that step should or should not be taken in the cause, is a gross imposition, not only upon the opposite party, but also upon the court. Ordinarily this court will not interpose, where no complaint is made by the opposite party; but where the rules regulating pleadings in this respect have been violated to the extraordinary extent they have in the present case, and such violation is so palpable and manifest, this court must, for its own protection and ■ the prevention of such abuses, interpose.

Decree reversed in part and in part affirmed.

Subsequently, upon an application for a rehearing, the following additional opinion was filed:

Per Curiam :

The opinion as originally prepared in this case upon the present appeal, in laying down the general principles which should govern the court below in adjusting the equities of the parties, as they appear from the findings of that court, and as they are shown to be by the supplemental cross-bill, proceeded upon the theory that Fargo was merely tenant jure uxoris of the lands in controversy, and upon this hypothesis, of course, as was then stated, his interest in the premises would have terminated with the dissolution of the marriage, without regard to the means by which it was accomplished, for the estate of the husband having no other interest in the property, is always in such case measured by the duration of the marital relation. The theory of the opinion, as matter of law, upon the facts assumed, was sound, but by inadvertence it overlooked the important fact that Fargo was also tenant by the curtesy initiate at the time of the divorce, which, unless granted for his fault, could not affect his rights as such tenant during his own life. The rents and profits, therefore, of the farm belonged to him during his life, and of course his estate should not be charged with them till after his decease. The rehearing was granted on account of this oversight, and the. original opinion has been corrected in the respect stated, and in some other formal particulars not necessary to be specifically noted, and thus modified has been re-filed as the opinion in the case.

The persistence with which one or two matters are urged in the petition for a rehearing induces us to add, in a per curiam, a few considerations to what we have already said in the principal opinion.

Counsel complain that the decree of the court below is inequitable, in this, that it sets aside the agreement and conveyance by which Fargo acquired title to his wife’s lands, and yet permits the decree for alimony to remain in full force. This question was in effect settled when the cause was before us on the first appeal, and upon a petition for a rehearing, subsequently filed in the case, we, on due deliberation, refused to modify what was then said. By that decision the decree granting the divorce and awarding alimony was left in full force, notwithstanding the circumstances under which it had been obtained, and there was a manifest propriety in doing so. The court had power to render it, and it was clearly binding upon the parties until reversed or otherwise set aside. Neither of the parties to it has appealed from it, nor have they in any manner sought to otherwise impeach it in the respect mentioned, nor do we perceive anything in this record that would warrant it. Neither the original bill, cross-bill, nor the supplemental cross-bill, asks such relief, or contemplates a decree of that kind. It is a familiar rule of chancery practice that no relief will be decreed which is not warranted by the general scope of the pleadings.

The court having jurisdiction over the parties and the subject matter of the suit, notwithstanding the fraud of the complainant and his counsel, as we have just seen, had the requisite power to grant the divorce and award the alimony, as was done, and no appeal having ever been prosecuted by either of the parties from that decree, or other direct proceeding instituted for the purpose of setting it aside, it follows, the decree is still binding on the parties in so far as the court was acting within its jurisdiction. As an incident of the power to grant the divorce, the court was authorized to award alimony to the wife, payable out of the husband’s estate, but the power to grant a divorce afforded no authority for taking the estate of the wife and giving it to the husband without consideration, although he may have had just grounds for a divorce. But it is said in the present case this was done with her consent. True it is, but this consent was obtained by the basest treachery of her solicitor, acting in concert with her husband, and consequently no advantage can accrue from consent thus obtained, nor can any right be founded upon it. While the cross-bill of Mrs. Pinneo does not seek to disturb the decree for divorce and alimony, yet it does directly attack the agreement in question, and all proceedings founded thereon, so far as they affect her own estate, and this she had a perfect right to do, as was distinctly held in the original opinion in this ease above referred to, and her exercise of this right does not at all affect the binding force of the decree for divorce and alimony. As we have just seen, so far as that decree is concerned no one has ever asked to have it set aside, or otherwise to be relieved from the obligations and duties it imposes, and certainly the court has no right, on its own motion, to interpose in their behalf.

The point is also made that the executors were not bound to pay the mortgage debt until it was allowed and ordered to be paid by the county court. This position is not tenable. As appears from the supplemental cross-bill, as well as the proofs in the case, Fargo, by his will, expressly directs his executors to pay off this incumbrance upon the land, and they have no right, in the face of this provision of the will, to go on and exhaust the assets of the estate in the payment of other claims, to the exclusion of this one altogether. Nor does the fact this claim was directed to be paid out of a fund that did not belong to the estate make any difference in this respect. The direction to pay it at all was a direct recognition of the justness of the claim, and if the direction to pay was coupled with a condition that could not»legally be performed, the condition is to be rejected altogether, leaving the direction to pay absolute. If an order of court was necessary to authorize the payment, it was their duty under the will to obtain one, or at least make an effort to do so. But nothing of this kind was done. From the charges in the supplemental cross-bill it would seem the course pursued was adopted for the express purpose of throwing the whole burden of this claim upon the mortgaged premises, so as to defeat Mrs. Binneo’s rights altogether. But such subterfuges as these will riot be permitted in a court of equity to defeat the ends of justice, however cunningly devised.


author: Mr. Justice Walkeb

text:
    The Pennsylvania Company v. John H. Stoelke, Admr.

      Filed at Ottawa September 27,1882.

    1. Evidence—proof of custom—as bearing on the question of comparative negligence. In a suit against a railroad company to recover damages for causing the death of.the plaintiff's intestate, on the ground of negligence, it appeared that the deceased, at the time of the injury, was engaged in his duty of inspecting cars then standing in a yard kept for that purpose, and was under a standing car, examining the same, which, by being suddenly struck by other cars in motion, caused the injury resulting in his death. It further appeared, the defendant, in taking some of its cars to the yard, there to be left, detached them from the engine propelling them before entering the yard, and suffered the ears, without any brakeman to control their momentum, to enter the yard and strike the cars then standing on the track, and thereby causing the injury. It was also shown that the deceased, who was engaged as car inspector about the yard, placed no signal on the track to notify the switchman or any one else that he was engaged in inspecting the cars, and that no warning was given the deceased, by bell, whistle or otherwise, of the approaching cars. On the trial the defendant asked a witness what the custom was, at the time of the accident, in letting cars into the yard .on tracks, and permitting them to run against standing cars, which the court refused to allow: Held, that the question was proper, as, if such was the custom, the answer would have aided the jury in determining the degree of care the deceased observed, and whether he was guilty of such negligence on his part as to prevent a recovery.
    2. Same—construing rule of a railroad company. A question calling" upon a witness to state whether, under a certain rule of a railroad company, there would be any objection to doing a thing a certain way, is not proper, as calling upon the witness to construe the rule, which is not within the domain of verbal evidence.
    3. Same—as to what constitutes negligence. In an action based upon alleged negligence of the defendant, it is not allowable to prove by a witness that the act complained of was not negligence, or objectionable. It is for the jury to say, from all the facts and circumstances, whether an act constitutes negligence.
    4. Instbtjction—summing up facts on one side only. An instruction is calculated to mislead, and erroneous, which sums up all or a number of the facts the evidence tends to prove on one side, and omits all on the other, thus impressing on the jury that the facts recited are the only ones that are important in the case.

      5. Ebbob will not always bevebse—giving improper instructions. Whether a judgment will be reversed because of erroneous instructions, depends upon whether they did, or probably did, mislead the jury to find an erroneous verdict. When it can be seen they did not produce such effect, the judgment will not be reversed, but it will be reversed when the case is not free from doubt. ,
    6. Pbactice—instructing jury to find for the defendant. Where there is evidence tending to show a right of recovery in the plaintiff, the court should not instruct the jury, on all the evidence, to find for .the defendant.

    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. John G. Bogees, Judge, presiding.
    Messrs. Willabd & Dbiggs, for the appellant.
    Mr. John Lyle King, for the appellee.

       See, also, Pennsylvania Co. v. Conlan, 101 Ill. 95, and note.

   Mr. Justice Walkeb

delivered the opinion of the Court:

Appellee brought an action on the case, in the circuit court of Cook county, to recover for damages claimed to have been sustained through the negligence of the employés of appellant in causing the death of appellee’s intestate. The accident occurred in the yards of the Chicago and Alton Bailroad Company, situated between Harrison and Van Burén streets. There were eleven or twelve tracks in the yard, connected with the main track by switches, and it connects with most of the railroads in the city. Various companies were accustomed to run their cars into this yard, for the purpose of standing them on these tracks when not in use, and to make up their trains. Such companies used their own engines for the purpose of placing their cars in, and removing them from, the yard. On the approach of a train intended to be placed in the yard, a signal was given to the switchman in charge of the yard, and he opened a switch, and the cars were thrown into the yard on the desired track. He selected the track and admitted the cars. The Chicago and Alton company had possession and controlled the road, but permitted appellant to stand its cars on its tracks in the yard. On the. forenoon of the 10th of October, 1879, the day of, the accident, appellant brought two cars for admission to the yard, and, on being signaled, the switchman opened á switch and admitted them,- they being driven by an engine of the Pittsburgh, Fort Wayne and Chicago railroad. The momentum they had acquired by the speed at which they were pushed when the engine was detached, drove them with sufficient force to start some cars standing on the track to which the incoming cars were admitted. It was the business of deceased to inspect cars placed on the track,—to .see whether they required repairs,—and he was at the time engaged in the performance of his duty, in inspecting the standing cars against which the cars were thrown by the Pittsburgh, Fort Wayne and Chicago engine. He was under the cars, and on their being started he was struck by them, and his neck was broken, and he was killed. He had placed no signal on the track to notify the switchman or any one else that he was engaged in the inspection of these cars. On the approach of the engine no signal was given, by the sound of a whistle or the ringing of a bell, nor does it appear that the incoming cars were under the control of a brakeman. No warning of any kind was given to deceased of the approach of the cars. The switchman had no knowledge that deceased was at or under the cars when he opened the switch to admit the cars when they were thrown on the track.

The jury found a. verdict in favor of plaintiff, as administrator of the estate of deceased, and assessed the damages at $3000. A motion for a new trial was overruled, and'judgment rendered on the verdict. Defendant thereupon appealed to the Appellate Court for the First District, and on a hearing the judgment of the circuit court was affirmed, and the case is brought to this court on appeal, and a reversal is urged on several grounds.

It is urged that the court erred in rejecting proper evidence offered by appellant, and in giving instructions for appellee. A witness was asked as to what was the custom in letting cars into the yard on tracks, and permitting them to run against standing cars, but the court refused to permit the question to be answered. We can see no objection to this question. It was proper, as, had the answer been that such was the custom, it would have shed light on the question as. to what degree of care was observed by deceased at the time of his death. He was constantly employed in the yard, inspecting cars on the track, and if such a custom existed, that fact would have tended to show he knew it; and if he knew it, such evidence would have aided the jury in determining, under all the circumstances, the degree of care he observed, and whether he was guilty of such negligence as to prevent a recovery.

Appellant also propounded a question to a witness, but on objection the court refused to permit it to be answered. The question is this: “State whether, under the rule, there would be any objection in cutting two, three or four cars loose from the engine, and allowing them to run with sufficient momentum to strike against other cars on No. 3.” No. 3 was the track on which the cars stood by which the car inspector was killed. There are several serious objections to this question. In the first place, the law, and not the rules of the company, defines negligence. In the next place, it was asking the witness to construe the rule, which was not within the domain of verbal evidence. Again, it was an effort to prove, by this witness, that the act complained of was not negligence. That,. as all know, was for the consideration and determination of the jury. There was, therefore, no error in rejecting this evidence.

The giving of this instruction for appellee is urged as error:

“If the jury believe, from the evidence, that the defendant, by its servants, was moving cars into the yard, and improperly, negligently, or without proper care, moved them, either by impelling them with improper or unreasonable momentum, or by uncoupling them from the engine and improperly and wrongfully allowing them to run loose, when so detached from the engine, without any person to brake or control such loose cars, so as, in either case, thereby to cause a forcible concussion between such loose cars and stationary cars on the track, and such concussion caused the immediate death of Frederick Weil, or that the sounding of the whistle or ringing of the bell of the engine moving cars was omitted, and by reason of such omission Weil was taken unawares, and killed by such concussion, then, in case of these circumstances, or either .of them, being found, from the evidence, to have existed, and if the jury believe, from the evidence, that such conduct was gross negligence on the part of defendant’s servants, the jury should find for the plaintiff, provided the jury should further believe, from the evidence, that Weil, at the time'of the concussion and of his death, was -performing his proper duty in a proper manner, and without fault on his part, ”

This form of instruction has been frequently condemned, and numerous judgments reversed because they were given. It is unfair to sum up all of the facts that the evidence tends to prove on one side, and omit all on the other, thus impressing upon the minds of the jury that the facts recited are the only ones that are important in the case. Here, this instruction enumerates a number of fact's in favor of appellee, and wholly ignores all facts on the other side. As well have told the jury that the failure to ring the bell and sound the whistle rendered the defendant liable. There are cases in our Be-ports where judgments have been affirmed notwithstanding similar instructions were given. Other cases, involving other questions, may be found, where the verdict is so clearly right that the judgment would be affirmed however erroneous the instructions. Whether a judgment will be reversed because of erroneous instructions, -must depend upon whether they did, or probably did, mislead the jury to find an erroneous ■verdict. -Where such instructions did not, or can be seen not to have produced that effect, the judgment will not be reversed. There are cases, however, where judgments have been reversed because such instructions as this were given. That will always be done where the case is not free from doubt. In all cases where the evidence seems to be evenly balanced, or it does not clearly preponderate on one side or the other, reason and justice demand that the instructions should be fair, and the law accurately stated, and if not, a reversal must follow. And in this case an examination of the evidence fails to show such a decided preponderance, to say the most for it, as to render it clear that the instruction was harmless.

Counsel for appellant asked the court to instruct the jury, on all the evidence, to find for the defendant. It would, in view of the numerous adjudications of this court, have been error had it been" given.

For the error indicated, the judgment of the Appellate Court must be reversed, and the cause remanded.

Judgment reversed.