author: Mr. Justice Mulkey

text:
    Alfred A. Lehmann et al. v. Paul Rothbarth.
    Filed at Mt. Vernon September 27, 1884.
    1. AppEAn-whether invOlving a freehold or not. Where one of the main objects of a bill in chancery is to recover an equitable freehold in land,- or, in other words, to establish a resulting trust in a freehold estate, -a freehold is involved, and this court has jurisdiction of an appeal directly from the trial court.
    2. While it is true that a party can not invest this court with original jurisdiction of an appeal by merely alleging facts showing he claims a freehold, without proof tending to establish such claim, yet where there is evidence fairly tending to support such allegation, and the olaim is made in good faith, an appeal may. be prosecuted directly to this court.
    3. Timers Aid) `LrnusT]3nss-ageat of a trustee or guardiaa-w hen to be held as a trustee. If an agent of a trustee acts fraudulently and collusively, he may himself be treated as a trustee by construction, and as suob held accountable to the eestui gus trust. If he secures to himself any beneüt by a breach of trust, he will be responsible for the property to the party entitled to the beneficial interest. If by an abuse of his power as simple agent he obtains possession of trust property, the cestui gus trust may proceed against him as a trustee.
    4. Where the husband of an administratrix of an estate and guardian of minor heirs, takes upon himself the enclusive ooutrol and management of the estate, excluding his wife from any participation in the same, and makes reports for her, and uses the trust funds, or places them to his own private account, the heirs and minor wards may, in equity, call him to account for the funds, etc., coming into his hands as agent of the administratrix and guardian.
    5. Same — reports made by husband of a guardian in her name — when, may be impeached. A husband of a guardian, who assumes an exclusive agency of the trust funds and securities of the wards, and makes out reports in his wife’s name, not under oath, of the correctness of which she has no knowledge, and is kept ignorant by him, which reports are approved by the probate court, will not be entitled to the same protection under them, when called on by the wards to account, as if made out in his own name, and he was the legal guardian.
    6. Same — guardian and ward — charge for taxes and repairs of homestead occupied by tenant for life. Where a husband of a guardian of minor children, who assumed the entire management of the trust estate, in making out reports to the probate court charged the wards with the taxes, and cost of insurance and repairs of the homestead premises, occupied by him for a residence, while his wife and the minors were absent a great part of the time at their own expense, it was held, that such charge was unwarrantable, and that in any event the)- should not have been charged with more than their equitable share of such expenses.
    7. Same — settlement with ward, after age — when may be opened. A settlement pressed upon wards about the time of their becoming of age, by one standing in loco parentis, and claiming to represent their mother and lawful guardian, from which the latter is forcibly excluded, should not be sustained, except in so far as it is just and fair to them. If based chiefly on improper charges against them, they should not be concluded by it.
    8. Same — basis for restating account after settlement. On bill by wards to set aside a settlement made by the husband of their guardian, with them, shortly after their majority, for improper charges in his accounts, etc., on granting the relief prayed, the court, in restating the account, should charge the complainants with all-payments made to them on the settlement, including real estate taken by them at its cash value at the time it was received; but the defendant should not be charged with any subsequent depreciation in its value, and the proof of such property being turned over to the wards at an excessive price should be clear and conclusive.
    9. Same — trustee, when liable for interest. Where one chargeable constructively as a trustee, uses the trust funds in his private business, the same as his own, he will be liable for interest on the same.
    10. One in the possession of trust funds can not use them in his private business for his own gain, and then relieve himself of liability to pay interest on the same by falsely reporting in his accounting that he has them on hand, and is unable to invest them.

      11. Evidence — bank account to show how much money a depositor has at a given time. Where it becomes material to show how much ready money a party who keeps a bank account has on hand on particular days, the state of his bank account at the times in question is clearly competent and proper evidence of that fact, and his bank account is admissible on the question.
    12. Husband and wife — when settlement between, opened. Where a husband comes into the possession and exclusive management of his wife’s estate, including her moneys, and practically excludes her for several years from participating in its management and control, and by harsh treatment and cruelty causes her to have a protracted sickness and great despondency, and to file a bill for divorce, he will not be allowed to shield himself from liability to account to her, by a settlement made with her in ignorance of her just rights, when in a condition not capable of entering into a business matter of such importance. Such a settlement is a fraud upon her rights.
    Appeal from the Circuit Court of Cook county; the Hon. Murray F. Tuley, Judge, presiding.
    Frederick Lehmann died intestate July 12, 1872, leaving Marie Lehmann, his widow, Ida Cudell, Alfred A., Oscar, Edmund, Emma, Frederick and Justine Lehmann, his only children and heirs at law, — the last two being children by a former wife. The estate of Lehmann, real and personal, amounted to near a half a million of dollars. All the children except Frederick and Justine were minors at the time of Lehmann’s decease. On the 7th of August, 1872, Marie was appointed administratrix of the estate and guardian of the minor children, by the county court of Cook county, and she thereupon assumed the duties of these trusts. On the 16th of July, 1873, she presented to the county court her tirst accounts as administratrix, showing a balance in her hands, after the payment of debts, of $215,936.41. Prior to the rendering of these accounts, to-wit, on the 10th of June, 1873, the said Marie intermarried with Paul Rothbarth, and on the same day Justine Lehmann intermarried with Edward Koch, the partner in business of Rothbarth. In July, 1873, after her marriage, Mrs. Rothbarth turned over the estate to Julius Rosenthal, who, as her agent and attorney, had the exclusive control and management of it until in March, 1874, when he turned it over to her again, or, rather, to her husband, as her agent. The amount thus turned over to him was over $335,000, all of which was invested in interest bearing securities, except $1Í,000 in cash, then on hand. These securities were kept in the Fidelity bank, and the cash was on deposit in the International Bank of Chicago, where Rosenthal kept his account, and the estate, in this condition, was turned over to Rothbarth. His wife gave to him the key to the box containing the securities in the Fidelity bank, and the account with the International bank was continued by her husband, in her name, for some time afterwards. He, from time to time, drew checks on the fund in her name, signed by him, as agent. These checks, or at least a part of them; were made payable to his own order, and some of them were deposited to his own account, in his own bank. The business was conducted in this manner until the 9th of November, 1874, when he closed his wife’s account with the International bank altogether, by transferring the balance then on hand to his own account with Meadowcroft Bros., his own bankers. The securities not converted or otherwise disposed of, were, as before, kept in the Fidelity bank, in the name of Mrs. Rothbarth, until in 1876, when, at his instance, they were placed in his own name, in a different box, and so continued until in the winter of 1879, when he made a final settlement with his wife respecting her separate estate. He also, about the same time, made" a settlement with her as guardian of Edmund and Emma, upon the basis of her accounts as guardian and administratrix, theretofore filed in and approved by the county court, as hereinafter mentioned.
    On the 17th of January, 1876, Mrs. Rothbarth made her second, and on the 14th of April her third and final report as administratrix, which were severally approved by the court. Her last report shows that she retained as her distributive share of the estate, $74,992.08, and paid'to each of the heirs $21,426.31. Upon the filing and approval of this report she was discharged as administratrix. Her first report as guardian was made on the 6th day of May, 1876, from which it appears she then had in her hands belonging to the five minor children, the aggregate sum of $223,648.40, the report showing separate accounts with each ward. Her second report as guardian, showing the state of her accounts with her several wards, was filed July 25,1877, from which it appears she then had in her hands, belonging to them, the aggregate sum of $228,860.23. On the 3d of September, 1879, Mrs. Rothbarth presented to the court her third report, showing the, state of her accounts as guardian, and the fact that two of her wards, Alfred A. and Ida,-had attained their majority since her last report, and asking to be 'discharged as guardian as to them. This report and the accompanying accounts were duly approved by the court. On the 9th of December, following, she resigned her guardianship as to Oscar, and one Peter Schuttler was thereupon appointed Oscar’s guardian in her stead. Mrs. Rothbarth, on the 12th of the same month, made her last report as guardian of Oscar, showing a balance due him of $43,322.27, and the payment of that sum to her successor, Peter Schuttler, as evidenced by his receipt. In 1879, Rothbarth made a final settlement with Alfred and Ida, on the basis of the guardian reports by his wife, above mentioned, no account being rendered to them by him at the time. In the settlement with them he paid them partly in real estate belonging to himself, partly in property belonging to the estate, and the balance in his own paper.
    Shortly after the settlement between Rothbarth and his wife, in December, 1879, with respect to the shares of Edmund, and Emma, as above stated, Mrs. Rothbarth commenced proceedings against him for a divorce, which she obtained about the first of March following, — cruelty to her being the ground of the divorce. Pending the divorce suit, and just before it was granted, the parties came to an understanding with respect to their affairs, the consummation of which was to be postponed until after the divorce,— and this understanding was subsequently carried into effect, as already stated. As a part of this settlement she released all claims and demands, of whatsoever kind or nature, she might have against him or his estate, the agreement being prepared by his counsel, and executed by her at their instance.
    The original bill in this case was filed January 20, 1882, by Alfred A., Oscar, Edmund and Emma Lehmann, and Ida Cudell, against Paul Bothbarth, and Marie Lehmann, their mother. By their bill complainants seek to recover certain real estate, the legal title of which is in Bothbarth, but which, as is alleged, was purchased by him with money belonging to complainants, — or, in other words, complainants seek to establish and enforce a resulting trust with respect to certain real property, the legal title whereof is in Bothbarth. They also seek to compel Bothbarth, as constructive trustee or guardian, to account directly to - them for the management and disposition of their estate while under his control, charging that it has been wasted and impoverished by willfully and fraudulently appropriating it to his own use. Marie Lehmann answered, admitting all the material charges in the bill, and also filed a cross-bill, setting up, substantially, the same facts, and praying an accounting as to herself. Answers were filed by Bothbarth to the original bill, and the cross-bill of Mrs. Lehmann. He also filed a' cross-bill praying the accounts and reports made in the name of Mrs. Lehmann, as guardian and administratrix, might be approved, and that his title to the real property in controversy be confirmed. The court, upon the hearing, decided in the main adversely to Mrs. Lehmann and her children, and they, by the present appeal, seek a reversal of the decree.

      Mr. A. M. Pence, and Messrs. Butz & Eschenbubg, for the appellants:
    A freehold .is involved, and hence an appeal lies from the circuit court to this court. Railroad Co. v. Watson, 105 Ill. 217; Daly v. St. Patrick’s Catholic Church, 6 Bradw. 468.
    An agent receiving a personal benefit from the breach of a trust, or where he has not confined himself to the duties of an agent, or where he has fraudulently mixed himself up with the breach of trust, or has accepted a delegation of the whole trust, is liable to account to the beneficiary. Lewin on Trusts, (7th Eng. ed.) 436, 175, 550; Perry on Trusts, secs. 246, 812, 907; Bodenham v. Hoskins, 2 DeG., M. & G. 902; Morgan v. Stephens, 3 Giff. 226; Hardy v. Caley, 33 Beav. 365; Morgan v. Morgan, 1 Atk. 489; Davis v. Harkness, 1 Gilm. 173.
    A person taking the possession and control of an infant’s estate, is liable to account for the same as if a guardian. Newburgh v. Brockerstaff, 1 Vern. 296; Van Epps v. Van Douser, 4 Paige, 71; 1 McPherson on Infants, 259; Schouler on Domestic Relations, sec. 371; Chaney v. Smallwood, 1 Gill, 367; Perry v. Carmichael, 95 Ill. 519; Wadsworth v. Connell, 104 id. 369; Davis v. Harkness, 1 Gilm. 173.
    The guardian’s accounts are not defendant’s, and can not shield him from accounting in his fiduciary capacity. Evans on Agency, *250; 1 Story’s Eq. Jur. sec. 465; Pulling on Accounts, *35, 41, 42; Dennis v. McCagg, 32 Ill. 429.
    Guardian’s accounts approved during the minority of the ward, are only prima facie correct. Schouler on Domestic Relations, sec. 372; Lynch v. Rohan, 39 Ill. 19; In re Steele, 65 id. 622; Bond v. Lockwood, 33 id. 216; Bennett v. Hanifin, 87 id. 31.
    A guardian is liable if he keeps the money in hand and does not invest it. McIntyre v. People, 103 Ill. 147; Wadsworth v. Connell, 104 id. 377.

      A person occupying a homestead should be charged with the ordinary running expenses, upon the same principle as a dowress after assignment. Wheeler v. Dawson, 63 Ill. 54; Mulhern v. McDavitt, 16 Gray, 404; Strawn v. Strawn, 50 Ill. 256.
    Bothbarth having used and mismanaged the estate for his personal benefit, must account for the commissions received by him. Bond v. Lockwood, 33 Ill. 216; Lynch v. Rohan, 39 id. 19.
    A guardian, or one acting in such capacity, who relies upon a release or settlement, must show that an account was rendered by him to the ward, and that the ward had a reasonable time to examine the account, and possessed the requisite information, skill and knowledge; and without this the settlement and release will be regarded as an empty form, and leave the case as it was before. There must be an adequate consideration, and the party must be free from duress. 2 Leading Cases in Eq. 1212, 1192, 1246, *596; Fish v. Miller, 1 Hoff. Ch. 267; In re Van Horn, 7 Paige, 46; Stanley’s Appeal, 8 Barr, 431; Garvin v. Williams, 44 Mo. 465; Sullivan v. Blackwell, 28 Miss. 724; Wills’ Appeal, 10 Harr. 325 ; Green v. White, 1 Johns. Ch. 27; 1 Story’s Eq. Jur. secs. 317, 339; Casey v. Casey, 14 Ill. 112; Dennis v. McCagg, 32 id. 429; Pennington v. L’Hommedieu, 7 N. J. Eq. 443; Foshay v. Ferguson, 5 Hill, 158; Hytton v. Hytton, 2 Ves. Sr. 548.
    Mrs. Lehmann, under her cross-bill, is entitled to an account by Bothbarth, as her agent, unless barred by her settlement with him, and her release of March 13, 1880. Clapp v. Emery, 98 Ill. 523; Patten v. Patten, 75 id. 466; Makepeace v. Rogers, 34 L. J. Ch. 306; 1 Story’s Eq. Jur. secs. 462, 465; Evans on Agency, sec. 250.
    The onus is thrown upon the agent of rendering an account to his principal, with the vouchers. Without such fair dealing and full disclosure and statement of accounts, settlements between principal and agent will be set aside. 1 Story’s Eq. Jur. secs. 218, 315, 465; Evans on Agency, *250; Kerr on Fraud, 125, 151; Pulling on Accounts, *41, 42; Dennis v. McCagg, 32 Ill. 429; Jenkins v. Gould, 3 Russell’s Ch. 386; Makepeace v. Rogers, 34 L. J. Ch. 306.
    The burden of proving the transactions fair, is upon the agent and trustee. Gibson v. Joyes, 6 Ves. 266; Billage v. Louther, 9 Hare, 534; Jennings v. McCormick, 17 Ill. 150; Jenkins v. Gould, 3 Russell’s Ch. 385.
    Mr. W. C. G-oudy, for the appellee:
    The court erred in admitting the bank account in evidence. The entries in the bank books are nothing more than the declarations of those making them, and mere hearsay. Barnes v. Simmons, 27 Ill. 512; Jermain v. Worth, 5 Denio, 342; Philadelphia Bank v. Officer, 12 S. & R. 49; Bank v. Call, 5 Fla. 409; Mudgett v. Howell, 33 Cal. 25.
    The orders of the probate court in approving the reports are res judicata. Freeman on Judgments, sec. 319; Schouler on Executors and Adrnrs. secs. 528, 526; Gates v. Treat, 17 Conn. 388; Caldwell v. Lockridge, 9 Mo. 362; Jones v. Brinker, 20 id. 87; Parker v. Bussell, 11 Cush. 107; Ordinary v. Kershaw, 14 N. J. Eq. 527; Debrell v. Pouton, 27 Texas, 623; Dooley v. Dooley, 14 Ark. 122; Dickson v. Hitt, 98 Ill. 300.
    In some States the rule is applied to partial accounts. Rhoads’ Appeal, 39 Pa. St. 186; Cummings v. Cummings, 128 Mass. 532; Wiggin v. Swett, 6 Metc. 194.
    It is ordinarily a good bar to a suit for an account, that the parties have had a settlement. Story’s Eq. Jur. sec. 523; Dawson v. Dawson, 1 Atk. 1; Chambers v. Goldwin, 9 Ves. 265; Taylor v. Haylin, 1 Cox, 435; Belden v. Phillips, 2 Edw. Ch. 1; Chappedelaine v. Dechenaux, 4 Cranch, 306.
    Rothbarth is entitled to the benefit of the accounts rendered in the name of the guardian. An agent employed by a trustee is accountable only to him, and not to the cestui que trust. Story on Agency, sec. 217 a; Megler v. Fitzpatrick, 6 Madd. 360; Attorney General v. Earl of Chesterfield, 18 Beav. 596; Lockwood v. Abdy, 14 Sim. 437.
    No decree can be founded upon new and distinct matters introduced by a cross-bill, not embraced in the original suit. May v. Armstrong, 3 J. J. Marsh. 262; Daniel v. Morrison, 6 Dana, 186; Gallatin v. Erwin, 8 Cow. 361; Josey v. Rogers, 13 Ga. 478; Rowan v. Rifle Co. 33 Conn. 1.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Upon filing the record in this court, appellee entered a motion to dismiss the appeal for an alleged want of jurisdiction, which was reserved for the hearing.

The question presented by the motion is, whether, under the pleadings and proofs, a freehold is involved, it being conceded there is no other ground upon which the jurisdiction of this court can rest. This question must be answered in the affirmative. One of the main objects of the bill is to recover an equitable freehold in land, — or, in other words, to establish a resulting trust in a freehold estate, — which necessarily involves a freehold. The only answer made to this position is, that there is no evidence in the record tending to establish it, and that it is not within the power of a party to confer jurisdiction upon this court by a mere allegation in the pleadings. The latter branch of the proposition we concede, but do not concur in the view there is no evidence in the record tending to establish the claim of the bill in this resp>ect. Evidence was offered, and considered by the court, on both sides of this question, and so far as we can see, the claim of appellants is made in good faith, upon evidence tending to establish it, and this was sufficient to confer jurisdiction upon this court.

Appellants are met at the threshold of the case with the claim that Bothbarth’s only connection with the estate of which an account is sought, was that of a mere agent of his wife, to whom he has already fully accounted. We fully recognize the general principle here invoked, and the only question is whether it is applicable to a case like the present. The principle in question, like most general rules, has its limitations, which are as well recognized as the rule itself. The general doctrine, with its limitations, is well stated by Perry in his work on Trusts. The author says: “If an agent is employed by a trustee, and thus comes into possession of the property, he will be accountable to his employer, and will not be responsible as a constructive trustee. But if an agent should act fraudulently or eollusively, he might be made a trustee by construction, and as such accountable to the cestui que trust.” (Sec. 246.) “If an agent secures any benefit" from a breach of the trust, he will be responsible for the property to the party entitled to the beneficial interest. ” (Sec. 813.) “If they mix themselves up with a breach of trust, and by an abuse of their powers as simple agents obtain possession of the trust property, the cestui que trust may proceed against them as trustees de son tort, or constructive trustees.” (Sec. 907.) See, also, to the same effect, Lewin on Trusts, (7th Eng. ed.) 175, 436, 550. The rule, with its limitations, as stated by these authors, is fully recognized by this court in Davis v. Darkness, 1 Gilm. 173.

The question then recurs, do the proofs bring appellee within any of the exceptions to the general rule that an agent of the trustee can not be required to account to the cestui que trust for his management of the trust estate. After a careful consideration of the record we feel constrained to hold that they do. We can not stop to discuss the evidence bearing upon this or other controverted questions of fact involved in the case, nor can we even advert in a general way to all the material parts of it, without extending the opinion in the case beyond all reasonable limits. We must therefore content ourselves with a statement of the general results reached upon matters of mere evidence, with an occasional reference to such parts of the proofs as we think have special significance.

Assuming appellee, under the circumstances shown, may be required to account to the parties in interest for his management of the estate, as we hold he may, it is then claimed the reports and accounts heretofore fil.ed by him in the name of his wife, and approved by the probate court, must be treated as his reports, and that he is entitled to the same protection under them as if they had been made out in his name, and he had been the legally appointed guardian of the children instead of Mrs. Lehmann. In making this statement of appellee’s position, of course we do not pretend to give his or his counsel’s language, but simply the effect of the claim, as we understand it. There are several serious objections to this view. We think the weight of evidence shows that from the date of the first guardian accounts in 1876, and even during the preparation of those accounts, Mrs. Lehmann had but little to do with the control or management of the estate, and that her knowledge of it was much less. It would appear, from some cause or other, — whether from undue influence, compulsion, or otherwise; — she had at that time, in effect, abdicated her office and trust as guardian, in favor of her husband, over whom she does not seem to have had the slightest supervisory control. It is true, there is considerable evidence in the record that negatives this view, some of which is open to apparently just criticism, and that which is not, we think is overborne by the testimony of more reliable witnesses, and facts about which there is no controversy. Mrs. Lehmann says in her testimony: “Mr. Bothbarth kept charge of my property, and the estate, money and mortgages, from 1874 to December Id, 1879. * * * I did not have the money of the minors during that time. I did not have charge of it at all. I did not have charge of it because Mr. Bothbarth took charge and refused to let me have charge of it. I told him to let me have charge of it, and he said he would never let me have it unless I would force him in court to do so, and if I did, he would burn up everything before he would render it to me. We had repeated conversations like this. I asked him repeatedly to let me have the papers, and let me take care of them, but he refused, and in 1877 I asked him again, but he would not do it, and after I returned from Europe I asked him again, and he said he would never do it unless I enforced it. That was always the answer he gave me, — that he would burn up everything before he would do it, and make my children beggars. These conversations were not carried on in a quiet manner, but in a very rude manner. * * * I signed the accounts now shown me, being the guardian’s accounts filed May 6, 1876. Mr. Rothbarth told me to sign them — that they were correct. When I took them in my hands to look them over, he said they were all right, — that they were correct, — and I did not know enough to examine them, to see whether they were correct. He kept the books and kept the accounts, and as he made them I signed them. ”

As already appears from the preceding statement, in 1876 Rothbarth took the securities belonging to the estate, out of the box in the vault of the Fidelity bank, in which they had theretofore been, and to which his wife had access, and placed them in another box under his exclusive control, and absolutely refused her all access to them. At the time of his settlement with Ida and Alfred A., the latter testifies: “Mr. Rothbarth took us down to his private room, and said he wished to settle our estate; we were to settle with him, and at that time mother stepped into the room to be present and see ' how things w7ere to be presented. He took her by the arm and led her out of the room, and said, ‘You don’t know anything about this estate. I have been handling it, and I have got the books, and I am going to settle with the children.’ ” This, to us, looks much like an independent assumption of the duties of guardian, and a repudiation of her rights, as well as his agency. That Mrs. Lehmann knew but little, if ■anything, • about the correctness of her guardian accounts, and that they are really the work of Bothbarth himself, and Koch, his confidential friend and partner in business, is also fully borne out by the testimony of Mr. Bosenthal. He says: “When I turned over the securities to Mr. and Mrs. Bothbarth on their return, (from Europe,) I dealt directly with Mr. Bothbarth. * * * I remember the guardian’s account rendered in 1876, — that data and everything were furnished by Mr. Bothbarth, the amount of receipts and expenditures. I do not suppose Mrs. Bothbarth did anything in regard to it. A great deal of the work in preparing the accounts was done by Mr. Koch. ” To this he adds, on cross-examination: “I have no doubt that Mrs. Bothbarth was sometimes at my office. I have no recollection of requiring her presence to do business, except for signatures to the account.” With reference to the items included in the account, he says he put in things that were doubtful and things that were improper because directed to do so, that the court might pass upon them. We do not give his exact words, but this is the substance of his statement.

It is clear from all this, the accounts in question were never verified by the oath of any one who understood them, and an analysis of the accounts themselves, in the light of the undisputed facts, shows they are erroneous in many particulars, and to such an extent that it would be difficult, if at all practicable, to separate the proper from the improper items, without a restatement of the whole account. The guardian herself, on subsequent investigation, admits that these accounts are erroneous and unjust as passed- by the probate .court, and desires they shall be set aside and restated; and that they were thus passed and approved by the court mainly through the instrumentality of Bothbarth, is clear b'eyond all question, and it is but charitable to add that in obtaining their approval under such circumstances, was an imposition upon the court. These accounts not having been verified by his oath, (the only person who fully understood their real condition,) we are aware of no principle upon which he can now shield himself behind them, and to permit him to do so, under all the circumstances of this case, would be a travesty-on legal justice.

As a single instance, out of many we can not stop to enumerate, of the glaring injustice of these accounts, may be mentioned the fact the children are charged in them with large sums on account of taxes, insurance, and the ordinary repairs of the homestead premises, that brought them no income, and were used and occupied by Mrs. Rothbarth and her husband as a residence. This is particularly true as to Rothbarth, for a large portion of the time Mrs. Rothbarth was in Europe with her children, who were lodged, boarded and educated there at their own expense for most of the time, and even for the small portion of time they lived at the homestead they were charged up in these accounts with their support. In any event, the children should- not be charged with more than an equitable portion of these expenses. The general rule unquestionably is, the tenant for life must defray expenses of this character. Other matters equally unfair and improper might be pointed out, but we can not stop to do so.

As the settlement between Rothbarth and Ida and Alfred A., heretofore mentioned, was based chiefly on these erroneous accounts, they should not be concluded by it; and it may he added, the circumstances already stated, under which it was made, afford additional reasons why they should not be so bound. A settlement pressed upon wards about the time of their becoming of age, by one standing in loco parentis, and claiming to represent their mother and lawful guardian, from which the latter is forcibly excluded, should not be sustained, except in so far as it is just and fair to them. In restating the account, they must, of course, be charged with all payments made to them, including the real estate taken by them in payment of their interests, respectively, with this qualification : that Rothbarth must make compensation for any loss they may have sustained by reason of taking property instead of cash, other than loss arising by subsequent depreciation of the property. If it was put to them at any material advance on its.then cash value in the condition the property then was, he should make compensation, otherwise not. The right to compensation, however, should be made out, if such a claim is interposed, by clear and conclusive testimony, so as to leave no well founded doubt of its justness.

The evidence shows, at least the weight of it does, that the individual estate of Mrs. Lehmann and that of her children was treated as a common fund, and that from and after the date of the first guardian’s report, Bothbarth treated it precisely as if it belonged to him, or he alone had control over it, and a large portion of the cash was carried to his own bank account, where it was used as his own private fund. This is abundantly shown by the fact the accounts filed in the probate court show large balances on hand, when by reference to his bank account, the correctness of which he does not question, it is demonstrated he had little or nothing on hand, and that his account immediately before and after these settlements was even overdrawn. Under these circumstances he is clearly liable for interest. (Perry on Trusts, sec. 468.) One in the possession of trust funds can not thus use them, and then relieve himself of responsibility by falsely reporting he has them on hand and is unable to invest them.

To the objection the evidence showing the state of Bothbarth’s bank account on particular days was improperly admitted, we think there is no merit in it. When the question how much ready money a party who is shown to keep a bank account has on hand at a particular time, becomes important in a judicial inquiry, the state of his bank account at the time in question is certainly competent evidence upon such an issue; and as to the manner of proving it, we know of no other way more satisfactory than that which was adopted in this case, — fiamely, by introducing the account itself. It is true that in' this particular case an examined copy of the account taken from the hank books was used, but it was stipulated the copy was to be treated and given the same effect as the books themselves. That one’s bank account is competent evidence for the purpose Bothbarth’s was used in this case, is expressly held in Furness v. Cope, 5 Bing. 114.

With respect to the real estate in controversy there is little to be said. While we think the circumstances tend strongly to show that the funds of Mrs. Bothbarth or of the children, or of perhaps both, were used in paying for the property, we are nevertheless of opinion the evidence, upon the whole, leaves the matter in too much uncertainty to warrant relief in this mode. By requiring appellee to fully account for the estate of Mrs. Lehmann as well as that of her children, which he must do, the ends of justice will be sufficiently and more certainly subserved than to establish a resulting trust with respect to this property.

As just indicated, we think the court erred in denying relief under Mrs. Lehmann’s cross-bill. We dp not think Bothbarth ought to be permitted to shield himself behind the settlement of December, 1879. The circumstances under which it was effected, as well as its subsequent ratification, appeal strongly in her behalf. It is apparent she did not, at the time, understand what her rights were, for, as already shown, she had been practically excluded by him for years from all participation in the management and control of' the estate, including her own as well as that of her children, and hence it was impossible for her to have any reliable information as to the condition of her affairs or her rights in the premises. Moreover, by his harsh and cruel treatment, his imperious bearing and conduct, resulting, as she claims, in serious sickness and despondency, she was evidently, at the time, in no condition to enter into a business engagement of such magnitude. In short, under all the circumstances, we regard the so-called settlement as a fraud upon her rights, and it should not, therefore, be permitted to stand. He has never accounted to her for the moneys she put into his hands, though often urged to do so. This he must do. Honesty and fair dealing require it. If he has kept his accounts, as her trustee, by preserving proper vouchers for all disbursements, and charging himself with all moneys that went into his hands, as the law requires he should have done, it will impose no hardship on him; and if he has failed to do this, it is but right that he should suffer any inconvenience his neglect in this respect brings upon him.

The decree of the court below is reversed, and the cause remanded for further proceedings in conformity with the views here expressed.

Decree reversed.

Mr. Justice Craig, dissenting.

Mr. Justice Scott : I am of opinion no freehold is involved in this case, and that the motion to dismiss should be allowed. For that reason I do not now wish to express any opinion as to the merits of the controversy.


source: Caselaw Access Project

license: Public Domain

text:
    Edward Abend v. Terre Haute and Indianapolis Railroad Company.

      Filed at Mt. Vernon September 27, 1884.

    1. Contributory negligence — what so regarded — and its effect on the right of recovery. Where an employe of a railroad company was sent on a wrecking train to assist in removing the debris of a wrecked train from the track, and instead of taking his seat in the car, in violation of a published rule of long standing entered the locomotive and took a seat with the fireman, just in front of the latter, where he remained until a collision took place with a freight train, and he was killed, it was held, that he was guilty of such negligence in taking an extra-hazardous place, as to bar any right of action by his personal representative, notwithstanding the negligence of the servant in charge of the train.

      2. It is not true, as a general proposition, that in actions for personal injuries caused by the defendant’s negligence, the contributory negligence of the injured party will constitute no defence except when the latter’s negligence is an element or factor in producing the force causing the injury complained of. It is sufficient if his negligence materially contributes to the injury, whether it contributes to the force causing the injury or not.
    3. A person who voluntarily and unnecessarily places himself in a well known place of danger to life or body, but for which position he could not have been injured, and he is injured or killed in consequence of such exposure, even through gross negligence of the defendant, if the act of the latter is not wanton or ■willful, is guilty of such contributory negligence as to preclude any recovery by him or his personal representative.
    4. If a plaintiff, by the exercise of ordinary care and prudence, might have avoided the consequences of the defendant’s negligence, and failed to do so, he can not recover of the latter for mere negligence. _ This rule has no application when the element of fraud or intentional injury enters into the case.
    5. Fellow-sebyants — whether that relation exists. A person in the employ of a railway corporation as a head blacksmith, was, with a number of other employes, directed to proceed on a wrecking train of the company to a place where a train of cars had been wrecked, for the purpose of assisting in removing the rubbish and obstructions. The train carrying them was under the charge of the engineer, who acted also as conductor, and by his neglect to obey instructions the train collided with another, resulting in the death of the blacksmith: Held, that the blacksmith, and all the other employes on the train, including the engineer and fireman, were fellow-servants of a common master, engaged in the same line of employment, within the rule excluding a right of recovery by one servant for the negligence of a fellow-servant.
    6. Pbactice — taking case from jury by instruction. Where the plaintiff fails entirely to make out a part of his case essential to a recovery, there is no error in the court instructing the jury to find for the defendant.
    Writ of Error to the Appellate Court for the Fourth District ; — heard in that court on writ of error to the Circuit Court of St. Clair county; the Hon. George W. Wall, Judge, presiding.
    Mr. James M. Dill, Mr. W. H. Bennett, and Mr. J. M. Freels, for the plaintiff in error:
    The ruling of the circuit court in withdrawing the proofs from the jury, and instructing them to find for the defendant, was an unwarrantable invasion of the province of the jury. The question of negligence is one of fact for the jury, and not of law for the court. (Hubner v. Feige, 90 Ill. 212.) As to the proper practice, see Amos v. Sinnott, 4 Scam. 447; Deshler v. Beers, 32 Ill. 369; People v. Brown, 3 Gilm. 87; Crowley v. Crowley, 80 Ill. 469.
    If the evidence even tended to show a right of recovery, the court had no power to take the case from the jury. Guerdon v. Corbell, 87 Ill. 272; Pennsylvania Co. v. Conlan, 101 id. 95.
    Whether or not Beasley was guilty- of negligence which contributed to the injury, was a question of fact to be found by the jury, under proper instructions from the court. Railroad Co. v. Bonifield, 104 Ill. 224; Pennsylvania Co. v. Conlan, 101 id. 94; Railway Co. v. Elliott, 98 id. 481; Lasure v. Granville Manf. Co. 18 S. C. 275.
    The definition of negligence is a question of law for the court, but it is always a question of fact, to be determined, from the evidence," by the jury, whether a given ease falls within that definition. Railroad Co. v. Morgenstern, 106 Ill. 220.
    The negligence of the plaintiff which defeats his recovery must be the proximate cause of the injury. Fowler v. Railroad Co. 8 Am. & Eng. Ry. Cases, 482; Frink v. Potter, 17 Ill. 411.
    Plaintiff’s contributory negligence must have immediately or proximately contributed to the result. Weeks v. Railway Co. 8 Am. & Eng. Ry. Cases, 314.
    The question of comparative negligence is also a question of fact for the jury. Railroad Co. v. Bonifield, 104 Ill. 224.
    Taking these questions of fact from the jury can not be sustained except by overruling the cases of Frink v. Potter, 17 Ill. 406, Railroad Co. v. Morgenstern, 106 id. 220, Railroad Co. v. Bonifield, 104 id. 224, Pennsylvania Co. v. Conlan, 101 id. 94, and Railway Co. v. Elliott, 98 id. 481.
    Beasley was killed through the negligence of the persons having charge of the train. He had no control over their actions, and as to them was not a fellow-servant, engaged in a common work. Bartonshill Coal Co. v. Reid, 3 Macq. 266; Gray v. Bressy, 15 Court of Sess. 135; Railroad Co. v. Keefe, 47 Ill. 110; Ryan v. Railroad Co. 60 id. 173; Railroad Co. v. Powers, 74 id. 345; Railroad Co. v. Moranda, 93 id. 324; Railroad Co. v. Collins, 2 Duv. 114; Gillenwell v. Railroad Co. 5 Ind. 340; Cooper v. Mullens, 30 Ga. 150.
    The rule to he deduced from all these cases is, that when the injured servant has no control over the offending Servant, then they are not fellow-servants. Dowling v. Allen & Co. 74 Mo. 13; Railroad Co. v. Fort, 17 Wall. 557; Wood on Master and Servant, secs. 390, 436, 439; Cooley on Torts, 555; 2 Thompson on Negligence, 976.
    Who are fellow-servants in a given case, like the question of negligence, is a question of fact for the jury, and not of law for the court. Whether Beasley and the engineer were fellow-servants depended upon a variety of facts, which had to be proven before the jury, and from the facts thus proven it was for the jury then to say whether the two servants, in the discharge of their duties, were fellows; and it was error in the court to deprive the jury of this right. Railroad Co. v. Morgenstern, 106 Ill. 220; Railway Co. v. Moranda, 108 id. 581.
    Mr. John B. Bowman, for the defendant in error :
    Beasley was not a passenger, but a servant being carried to the place he was needed. - Even if he had been in the car provided for him, he would be no more a passenger than were Keefe, in 47 Ill. 108, or Britz, in 72 id. 256, or Cox, in 21 id. 23, or Durkin, in 76 id. 395. He was simply a servant, with privilege to ride free. Ryan v. Railroad Co. 23 Pa. St. 384; Gillehannon v. Railroad Co. 10 Cush. 228; Seaver v. Railroad Co. 14 Gray, 466.
    That Beasley was a fellow-servant with the conductor and fireman, see Keefe’s case, 47 Ill. 110; Gartland's case, 67 id. 498; Railroad Co. v. Moranda, 93 id. 320.

      The court may exclude all the evidence when there is no proof tending to prove a material fact. Frazer v. Howe, 106 Ill. 573; Crowley v. Crowley, 80 id. 469; Smith v. Gillett, 50 id. 290; Poleman v. Johnson, 84 id. 269.
    The material issues • presented by the allegations of the declaration are: First, was Beasley a passenger ?, Second, was he in the exercise of due care and caution? Third, was he a fellow-servant with defendant’s servant through whose fault the collision occurred which resulted in his death ?
   Mr. Justice Mulkey

delivered the opinion of the Court:

This action was brought by Edward Abend, the plaintiff in error, as administrator of Thomas Beasley, against the Terre Haute and Indianapolis Bailroad Company, the defendant in error, to recover damages for personal injuries received by the plaintiff’s intestate in a railroad collision, resulting in the latter’s death, alleged to have been occasioned by the negligence of the company. The cause was tried in the St. Clair circuit court, where the action was brought, resulting in a verdict and judgment for the defendant. The judgment having been affirmed by the Appellate Court for the Fourth District, the plaintiff in' error brings the record here for review.

On the trial in the circuit court, after the evidence on the part of the plaintiff was in, the defendant declined to offer any testimony, and the court, at its instance, instructed the jury to find the issues for the defendant, which it did, and the ruling of the court in thus withdrawing the case from the jury presents the ultimate question for determination.

The circumstances under which Beasley was killed, and which gave rise to the present litigation, are as follows: On the 25th of June, 1880, one of the defendant’s trains was wrecked on its road, near Confidence Hill, in Madison county, this State. On the following day the deceased, being an employe of the company,'together with a number of others, was ordered by the proper officer of the company to go out from East St. Louis, on a wrecking train of the defendant, to the place of collision, for the purpose of assisting in removing the wreck, which he proceeded to do. The train was under the control of one Busse, who acted in the capacity both of conductor and engineer. Beasley, instead of taking a seat in the wrecking car, as he should have done, in violation "of a published rule of the company of many years’ standing, and of which, from the circumstances, he must have had notice, got on the locomotive and took a seat on the fireman’s side, immediately in front of Cope, the fireman, the train moving off as he did so, in which position he remained until a short time afterwards, when the locomotive upon which he was riding collided with the engine of a freight train coming in the opposite direction, causing his immediate death. The train upon which the deceased was riding was what is known, particularly among railroad men, as a “wild train, ” — that is, a train not running by schedule, but under special instructions. By the orders delivered to Busse he was expressly directed to keep out of the way of the very train with which his own train collided. This he neglected to do, — hence the collision, and the serious consequences resulting therefrom.

The declaration charges, in substance, that Beasley, by order of the company, went aboard the train for the purpose indicated, and that while it was proceeding to the wreck, under the control and management of the servants of the defendant, it came in collision with a freight train belonging to and under the control of the defendant, whereby the said Beasley was instantly killed; that at the time he was so killed he was exercising due care and caution, and that such killing was without any fault or misconduct on his part, and that he was not, at the time in question, a fellow-servant with the servants of the defendant who were operating said train, or either of them; that said Beasley then was, and prior thereto had been, in the employ of the defendant as its head blacksmith, and when so killed he was proceeding to said wreck, by defendant’s order, in his capacity as such blacksmith, which is a distinct and different line of employment from that of the other servants of the defendant, etc. These allegations were all traversed by the defendant’s plea, and thereby put directly in issue.

The proofs clearly establish most of the issuable facts essential to a recovery. But do they show, or tend to show, the deceased was exercising due care at the time of the col-, lision, or that the deceased was not at such time a fellow-servant with the servants of the company through whose negligence the collision happened ? We are of opinion they do not. It follows, therefore, the trial court ruled properly in withdrawing the case from the jury. What evidence is there in this case tending to show that the deceased was using due care at the time of the accident ? None, that we can see. Instead of taking a seat in the wrecking car, (the safest and most appropriate place, especially in case of collision or other accident,) as he should have done, and, in-' deed, as he was requested to do, he deliberately, in violation of an express rule of the company, took a seat upon the locomotive, where he was not only exposed to the ordinary dangers incident to that place, but his position even there was rendered extra hazardous by the fireman sitting immediately in his rear, in the small space provided for the fireman only. Situated as the parties were, in ease of sudden danger it would, to say the least of it, have been very difficult for him to have made his-escape by jumping from the engine, and so it turned out in this instance. Cope, being in the rear, did jump from the locomotive before the collision— Beasley did not. The consequence was, Cope saved his life, while Beasley lost his. Of the entire force, Beasley was the only one killed.

We are of opinion the proofs, so far from showing the deceased was exercising due care when the accident occurred, established beyond controversy he was guilty of such negligence as to absolutely forbid a recovery. Indeed, it does not seem to be seriously contended the deceased was free from negligence, but the contention appears to be that Beasley’s death was the immediate result of the collision, and that the negligence of the deceased was not an element or factor in producing the collision, hence it seems to be concluded that however gross his negligence, it can not affect his right of recovery. This view, plausible as it may appear, is clearly unsound. It can not be maintained as a general proposition, that in actions for personal injuries caused by the defendant’s negligence, the contributory negligence of the injured party will constitute no defence except when the latter’s negligence is an element or factor in producing the force causing the injury complained of. It is sufficient if the plaintiff’s negligence materially contributes to the injury, whether it contributes to the force causing the injury, or not. Whatever dicta, or even decisions, may be found to the contrary, the cases fully establish the rule as here stated. Galena and Chicago Union R. R. Co. v. Fay, 16 Ill. 558; Ilinois Central R. R. Co. v. Buckner, 28 id. 299; Chicago and Alton R. R. Co. v. Becker, 76 id. 25.

A simple illustration will demonstrate the fallacy of the principle contended for. A party deliberately lies down upon a railroad track where trains of a railroad company are continually passing, and falls asleep. Presently a train comes along at a forbidden rate of speed, and the engineer neglects to ring the bell as required by statute, and the party on the track is injured. In the case supposed it is clear there could be no recovery, and yet the negligence of the party injured did not contribute to the force causing the injury, nor did it have any connection with the negligence of the company in operating its train. It consisted simply, as in the present case, in the injured party placing himself in a dangerous position, but for which the accident would not have happened. The principle deducible from the cases generally, is, that if the plaintiff, by the exercise of ordinary care and prudence, could have avoided the consequences of the defendant’s negligence, and fails to do so, he can not recover. Indeed, it is a fundamental principle the plaintiff can not recover in any case for an injury occasioned by negligence merely, which would have been avoided by the exercise of ordinary care and prudence on the part of the plaintiff himself. Of course, the rule here announced has no application where the element of fraud or intentional injury enters into the case, for however negligent the plaintiff may be, the defendant has no right to practice a fraud upon or willfully injure him.

But conceding, for the purposes of the argument, the court should not have withdrawn the question of due care of the plaintiff from the jury, we have no hesitancy in saying the case made by the plaintiff was wholly insufficient to warrant a recovery upon the other question, and the case was therefore properly withdrawn from the jury on that ground. The Cox case, 21 Ill. 23, the Keefe case, 47 id. 108, the Britz case, 72 id. 256, and the Durkin case, 76 id. 395, all fully sustain the ruling of the court below upon this question. The evidence, construed in the light of these cases, shows beyond all controversy that Beasley was a fellow-servant with Busse, through whose negligence and disobedience of orders the collision was brought about. The evidence shows that a wrecking force is always made up, in the hurry of the moment, out of the employes and servants of the company who happen to be within convenient reach, without regard to the particular line of service in which they are employed. The removing of obstructions from the tracks in ease of a collision is, as shown by the proofs in this case, a distinct branch of service, to which all the laboring force of the company are liable to be called, without any reference to their ordinary calling or duties; and when a force thus made up goes aboard the wrecking train and starts to the scene of disaster, they are all, including conductor, engineer, fireman and brakeman, just as much in a common branch of service while on the way, as they are after their arrival and the work of clearing the tracks has actually commenced. It is an error to suppose that a force of men can not be engaged in a common service unless all are continuously working at the same time and engaged in doing precisely the same kind of work. It is sufficient if all are actually employed by the same master, and that the work of each, whatever it may be, has for its immediate object a common end or purpose, sought to be accomplished by the united efforts of all. The skill of a carpenter, blacksmith, or other mechanic, might be very useful in removing a wreck, and when thus working together in such a service, though each one in his own particular way, they are all, within the meaning of the rule, engaged in a common employment, notwithstanding in their ordinary employ^ment they have no connection with each other, and consequently when so engaged are not fellow-servants. The deceased, though not actually using a hammer or other tool at the very moment he was killed, was nevertheless just as clearly in the employ of the company for the purposes of the business then in hand as the remainder of the force who actually assisted in removing the wreck. One who is hired by the day, week or year, is just as much in his employer’s service in going to and from his work as when actually engaged in the work itself.

The judgment will be affirmed.

Judgment affirmed.

Scott and Dickey, JJ., dissent from this opinion.


author: Mr. Justice Scott

text:
    Francis M. Yocum v. Andrew J. Lovell.

      Filed at Springfield September 27, 1884.

    1. Homestead — as to the mode of its release. The statute does not require that the name of the husband or wife of the grantor of land shall appear in the granting clause, or elsewhere in the body,of the deed, in order to a valid release of the estate-of homestead.
    2. A deed of trust on real estate occupied by a husband and wife as a homestead, contained a clause expressly relinquishing and releasing the homestead, and the deed was signed and duly acknowledged by both, though the wife’s name did not appear in the granting clause, or elsewhere in the body of the deed: Held, that the deed was sufficient to pass the homestead both of the husband and wife.
    Wb.it of Error to the Appellate Court for the Third District ; — heard in that court on writ of error to the Circuit Court of Pike county; the Hon. S. P. Shore, Judge, presiding.
    This action was forcible detainer, commenced by Andrew J. Lovell, against Francis M. Yocum, before a justice of the pe.ace, to recover possession of a half section of land, described by its numbers. On the trial before the justice of the peace defendant was found guilty, and judgment rendered against him. On his appeal the case was tried de novo in the circuit court, and that court found defendant not guilty as to one quarter section, and guilty as to the other quarter section, and rendered judgment for possession, and awarded execution for costs. That judgment was affirmed in the Appellate Court for the Third District, and the judges of that court having certified that in their opinion the case involves questions of law of such importance as that they should be passed upon by the Supreme Court, defendant brings the case to this court on error.

      Mr. J. S. Irwin, for the plaintiff in error:
    It is not sufficient to release the wife’s interest in land that she sign and acknowledge the deed. Her name must be in the deed as one of the grantors, and she must use words of conveyance or release. McFarland v. Febiger, 7 Ohio, 194; Leavitt v. Lamphrey, 13 Pick. 383; Catlin v. Ware, 9 Mass. 218; Stevens v. Owens, 25 Maine, 94; Lufkin v. Curtis, 13 Mass. 223; Powell v. Monson, 3 Mason, 349; Hall v. Savage, 4 id. 273 ; Westfall v. Lee, 7 Iowa, 12; Lothrof v. Foster, 51 Maine, 367; 3 Washburn on Real Prop. 257; Lithgow v. Kavenaugh, 9 Mass. 173; Purcell v. Goshorn, 17 Ohio, 105; Dodge v. Nickols, 5 Allen, 548; Bartlett v. Bartlett, 4 id. 440; Melvin v. Proprietors, 16 Pick. 137; Bruce v. Wood, 1 Metc. 542; Cox v. Wells, 7 Blackf. 410; Cincinnati v. Newhall, 7 Ohio St. 37; Raymond v. Holden, 2 Cush. 264; Agricultural Bank v. Rice, 4 How. 225; Peabody v. Hewitt, 52 Maine, 50; Greenough v. Taylor, 11 Gray, 332; Hodge v. Hollister, 2 Tenn. 606; Sharp v. Bailey, 14 Iowa, 387; Payne v. Parker, 10 Maine, 178; Jewett v. Davis, 10 Allen, 70; Warner v. Peck, 10 R. I. 431; Kern v. Peeler, 4 Jones, (N. C.) 226; Gray v. Matthis, 7 id. 502; Hammond v. Thompson, 56 Ala. 591; Lawrence v. Heister, 3 H. & J. 371; Baxter v. Bodkin, 25 Ind. 172; Hedges v. Ward, 15 B. Mon. 106; Ayres v. Hawks, 1 Bradw. 600.
    There must be a formal release of the homestead, — a release of fee or dower is not sufficient. Kitchell v. Burgwin, 21 Ill. 45; Vanzant v. Vanzant, 23 id. 536; Boyd v. Cudderback, 31 id. 113; Smith v. Miller, id. 157; Warner v. Crosby, 89 id. 320; Best v. Gholson, id. 465.
    The homestead right may be set up by the husband, in ejectment or forcible detainer. Warner v. Crosby, 89 Ill. 320; Best v. Gholson, id. 465; Panton v. Manley, 4 Bradw. 210; Bonnell v. Smith, 53 Ill. 375; 35 id. 106; Johnson v. Adleman, id. 265; Trustees v. Hovey, 94 id. 394.

      The release or waiver must be joined in by the wife and husband, both in the deed and acknowledgment. Rev. Stat. 1874, chap. 30, secs. 11, 27, and chap. 52, sec. 4; Ayres v. Hawks, 1 Bradw. 600; Warner v. Crosby, 89 Ill. 320; Best v. Gholson, id. 465; Richards v. Green, 73 id. 57; Thompson on Homestead, sec. 474; Trustees v. Hovey, 94 Ill. 394; 35 id. 106.
    Words of grant or lease are required in every deed. The intention to convey must appear from the words used. Johnson v. Bantock, 38 Ill. Ill.
    . Taking a lease by a husband, is not a waiver of homestead as against the wife. Booker v. Anderson, 35 Ill. 66; Buck v. Conlogue, 49 id. 391; Allen v. Hawley, 66 id. 171; Morrison v. Sargeant, 18 Iowa, 90 ; Wood v. Lord, 51 N. H. 448; Abbott v. Cromartie, 72 N. C. 548; Thompson on Homestead, sec. 470.
    Messrs. Matthews, Wike & Higbee, for the defendant in error:
    It is sufficient to release the wife’s interest in the land of her husband, that she sign, seal, acknowledge and deliver the deed. It is not necessary- that her name appear in the body of the deed as one of the grantors, and this same rule applies to the interest of the husband- in his wife’s land. 3 Wash-burn on Real Prop. 266, sec. 31; Elliot v. Sleeper, 2 N. H. 525; Coke on Littleton, 6 a; Lord Say and Seal’s Case, 10 Mod. 46; Miller v. Shaw, 103 Ill. 277; Woodbury v. Seaver, 38 N. H. 29; 4 Bacon’s Abridg. 513; Lithgow v. Kavenaugh, 9 Mass. 161; Johnson v. Montgomery, 51 Ill. 185; Deutzer v. Walden, 80 Cal. 138; Armstrong v. Stovall, 26 Miss. 275.
    When persons sign a bond they are bound by it, though 'their names do not appear in its body. Smith v. Crooker, 5 Mass. 540; Ahrend v. Odiorne, 125 id. 50; Leath v. Bush, 61 Pa. St. 395; Scheed v. Liebschultz, 57 Ind. 38; Kursely v. Shenberger, 5 Watts, 193.

      A deed will be construed most strongly against the grantor. 3 .Washburn on Beal Prop. 397, and cases cited; 2 Blackstone’s Com. 380.
    Every deed must, if possible, be made operative. Cases exist in -which almost every formal part of a deed has been dispensed with. Coke on Littleton, 7 a; Bridge v. Wellington, 1 Mass. 219.
    In the transfer of the homestead right the acknowledgment is made a part of the deed. (Rev. Stat. 1874, chap. 52, sec. 4, and chap. 30, sec. 27.) But even if the two deeds of trust were neither of them properly executed and acknowledged to release the right of homestead, yet the plaintiff in error having, after the making of the trustee’s deeds, accepted a lease and paid rent under the same, he has thereby given possession of the premises “pursuant to the conveyance, ” which, under the present statute, amounts to a conveyance. Rev. Stat. 1874, chap. 52, sec. 4; Winsloiu v. Noble, 101 Ill. 195; Barrett v. Wilson, 102 id. 302; Eldridge v. Pierce, 90 id. 482.
    Whatever right the wife may have in relation to the homestead, is subordinate to the right of the husband while he lives and continues to be the head of the family. Redfern v. Redfern, 38 Ill. 509; Clubb v. Wise, 64 id. 157; Buck v. Conlogue, 49 id. 391; Brown v. Coon, 36 id. 243; Burson v. Fowler, 65 id. 146.
    The wife of plaintiff in error is not a party to this suit, and if she has not properly released her right of homestead she may have her relief in equity. Booker v. Anderson, 35 Ill. 67; Abbott v. Cromartie; 72 N. C. 292; 21 Am. Rep. 457.
   Mr. Justice Scott

delivered the opinion of the Court:

On and prior to the 3d day of November, 1877, defendant, Yocum, was the owner and was in possession of the land involved in this litigation. To secure certain indebtedness, defendant on that day executed and delivered to John A. Thomas a trust deed on the lands involved, which deed contained the usual power of sale in case default should be made in the payment of the note secured. Afterwards, on the 22d day of November, 1877, in order to secure another sum of money, defendant made and executed another trust deed on the same property to A. L. Galloway, which deed also contained the usual power of sale. It appears default was made in the payment of the note secured by both trust deeds, and the trustees named therein regularly advertised the property for sale, according to the provisions of the deeds. At the sale made of the property, plaintiff became the purchaser, and received deeds therefor in the usual form from the trustees making the sales. As to the regularity of the sale no question is made, nor as to the validity of defendant’s title at the time of making the trust deeds.

It is proven the indebtedness secured on the property was not incurred for the purchase money, nor for any improvements in the property; that defendant is the head of a family, and resided with them on the property at the time of making the trust deed, and has since continued to reside with his family on the quarter section as to which he was found guilty of withholding from plaintiff. It was also proved the wife of the grantor had never consented to abandon the premises or her homestead on the same, or that the grantor might do so, otherwise than expressed in the deeds of trust, and that the grantor had not, at any time before or since the bringing of this suit, provided any other homestead or place of residence for his wife and family suitable to their condition, or otherwise. There is also evidence that after plaintiff became the purchaser of the land, defendant became his tenant, but in the view taken by the court that fact in the case will not become important, and the evidence on this branch of the case need not be stated.

Oh the' trial, defendant objected to the reading of both trust deeds in evidence, on the ground that neither of them was so executed as in law to bar or cut off the homestead of defendant, or that of his wife residing with him on the premises. It is conceded the acknowledgment of the trust deed to Galloway by the husband does not bar his homestead in the property, and it will not be further noticed. The objection taken to the trust deed to Thomas, under which the property was sold to plaintiff, is, that although the signatures of both the husband and wife appear signed to the deed, yet it is solely the deed of the husband. The name of the wife of the grantor nowhere appears in the granting clause, or elsewhere in the body of the deed. In the body of the deed all exemption of homestead is expressly relinquished, and the déed is subscribed by the wife of the grantor, and is acknowledged by her in conformity with the statute. That, it is thought, is all the statute requires to be done. Section 4, chapter 52, of the Eevised Statutes of 1874, declares no release, waiver or conveyance of the estate of homestead so exempted shall be valid unless the same is in writing, subscribed by the householder and his wife, or her husband, if he or she have one, and acknowledged in the same manner as conveyances of real estate are required to be acknowledged. It will be observed all the statute requires to make the release, or waiver, or conveyance of the homestead, valid, is that such relinquishment shall be in writing, and subscribed by the husband or wife of the grantor, if he or she have one, and that it shall be acknowledged as conveyances are required to be acknowledged by the 27th section of the Conveyance act. That was done in this case. The wife of the grantor subscribed the deed relinquishing all exemption of homestead, and acknowledged the same as the law provides shall be done. The statute has not required that the name of the husband or wife of the grantor shall appear in the granting clause, or elsewhere in the body of the deed. Unless made so by statute, it is not imperative it shall so appear. It is sufficient for a valid relinquishment of homestead that it is done in conformity with the statute.

A question having some analogy to the case now before the court, was passed upon by this court in Miller v. Shaw, 103 Ill. 277. The deed was that of a married woman, and it was insisted it was not sufficient to convey her separate property, because her husband did not join with her in the granting clause of the deed, and it was held, under the statute then in force, that which it required to be done to enable the wife to convey her separate property is, that she and her husband shall execute the deed, and after that she shall appear before a proper officer and acknowledge the same in the mode pointed out by the statute, and such deed being acknowledged or proved according to law by the husband, it would be effectual to pass the title to the separate property of the wife. In the case now being considered the wife joins with her husband in the release of the homestead in precisely the same manner as the husband did with the wife in the case cited,' and that conforms to the provision of the 27th section of the Conveyance act of the Eevised Statutes of 1874.

As the trust deed released all exemption from homestead, and was subscribed by the wife of the grantor, and was acknowledged in conformity with .the statute, it must be regarded as sufficient to pass the homestead both of the husband and wife, and as this view is conclusive of the whole case, the other questions discussed need not be considered. '

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.