text:
    Seth Wadhams v. Ethel L. Swan.

      Filed at Ottawa January 23, 1884.

    1. Pleading—special plea, faulty as being argumentative—and as amounting only to the general issue. In a suit on a note given for the purchase money of land which had been sold and conveyed by a minor, and which was not to be paid until the payee, after full age, should confirm her former deed, the declaration alleged that the plaintiff, “when she became of age, to-wit, on, etc., made and delivered to defendant her certain deed, wherein she did ratify the deed first above mentioned. ” The defendant, in one of his pleas, alleged “that the plaintiff has failed to confirm the sale of said land to the defendant:” Held, that the plea was defective in form, as being at most but an argumentative denial of the allegation in the declaration, and as failing to put in issue the alleged fact that the plaintiff, after becoming age, executed and delivered to the defendant a deed, wherein, etc., and also that the plea amounted to the general issue, only.

      2. A plea seeking to put in issue a fact the plaintiff is bound to prove under the general issue in order to recover, amounts only to the general issue, and for that reason is bad on special demurrer, or should be stricken from the files, on motion. But such defect in the plea is not reached by general demurrer.
    3. Pleading and evidence—proof of total or partial failure of consideration. A defendant can not, under a plea of no consideration, or total failure of consideration, show a partial failure, nor can he, under a plea of total failure of consideration, show there was no consideration.
    4. Same—recoupment, under special plea. A partial reduction of damages by recoupment can not be shown under a special plea in bar, but may be availed of under the general issue.
    5. Recoupment—definition. Recoupment, in the strict common law sense, is a mere reduction of the damages claimed by the plaintiff, by proof, under the general issue, of mitigating circumstances connected with or growing out of the transaction upon which the plaintiff’s claim is based, showing that it would be contrary to equity and good conscience to suffer the plaintiff to recover the full amount of his claim.
    6. Error will not always reverse—demurrer to plea improperly sustained. The sustaining of a demurrer to a special plea which amounts to no more than the general issue, where the very question raised by the plea, with the proofs in support thereof, are presented by the record independent of such plea, affords no sufficient ground for a reversal, even if the demurrer was improperly sustained.
    7. Practice—propositions of law to court trying cause without a jury. Propositions of law presented to a court trying a case without a jury, should state the law applicable to the case made by the evidence and pleadings, in reasonably accurate terms. Like instructions, when mere abstract propositions of law not pertinent to the proofs or the issues, or when based upon a hypothetical fact or state of facts not warranted by the evidence, they should be refused.
    8. Sale of land—as to quantity—boundaries, as controlling quantity—representations as to number of acres. On a sale of land by its proper numbers, or other specific description by which its boundaries are made certain, for a sum in gross, the boundaries, when ascertained, will control in case of a discrepancy as to the quantity or number of acres; and in such case neither the purchaser nor the vendor will have a remedy against the other for any excess or deficiency in the quantity stated, unless such excess or deficiency is so great as to raise a presumption of fraud.
    9. In the absence of any fraudulent representations on the sale of an entire tract of land.by metes and bounds, for a gross sum, neither party will be bound by a statement as to the quantity or number of acres contained in the tract, except when such statement is expressly, or by necessary implication, made the essence of the contract.

      10. But if the seller warrants the tract, either expressly or by necessary implication, to contain a certain number of acres, or when the sale is by the acre, and the seller makes a misrepresentation as to the number, the latter will, as in any other case of a breach of contract, be liable; and in an action by him for the purchase money, the amount of the deficit at the contract price may be recouped.
    11. Same—whether sale by the acre, or as an entirety—as shown by the deed. A conveyance described the land as the south one-third of section 17, etc., and showed the consideration to be $26,666.66: Held, that such deed showed a sale of the tract as an entirety, for a gross sum, and not by the acre.
    12. Covenants for title—when covenant becomes broken, so that an action will lie. Where a party makes a conveyance of an entire tract of land, with the usual covenants of warranty as to title, and against incumbrances, not having the title to a certain portion thereof then being occupied and used as a right of way by a railway corporation, the covenants will be broken immediately, and the grantee entitled to an action thereon, although he may have known, at the time, of the defect in the title.
    13. Measure of damages—breach of covenant against incumbrance. Where an entire tract of land is sold and conveyed by deed, with covenants of warranty against incumbrances, etc., and there is an incumbrance on the same, consisting of a right of way through the same occupied by a railway company, which, when considered with reference to the tract as an entirety, enhances rather than diminishes its value, the grantee will be entitled only to nominal damages for the technical breach of the covenant.
    14. After-acquired title—when it inures to grantee. ’ A minor and her mother conve3'ed a tract of land through which a railway company had a right of way, which was reserved in the conveyance to the minor heir’s father, the deed of the minor and her mother containing the usual covenants of warranty. Afterward, and before any action was brought on the covenants of warranty, the owner of the legal title of the strip of land occupied as a right of -way, conveyed, by quitclaim deed, all his interest in such strip of land to the mother: Held, that the effect of this latter conveyance was to vest in the first grantee, by way of estoppel, the legal title to the part used as a right of way, subject to the easement of the railway company.
    15. Parol evidence—where the contract is in writing. Where a contract is made in writing, the writing affords the only competent evidence of what the contract is. Parol evidence as to the agreement can not be considered.
    16. Consideration—defences in respect thereto. The statute, with certain limitations, allows a defendant, when sued upon a promissory note, etc., to interpose as a defence, either a want of consideration, or a total or partial failure of consideration. These defences are distinct, and must be pleaded separately.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gaby, Judge, presiding.
    On the 22d of June, 1861, George E. Cook, being the owner in fee of section 17, town 36 north, range 14 east, in Cook county, subject to the right of way of the Illinois Central Railroad Company, whose line of road passed through and over a part thereof, including the south third of said section, by deed of that date conveyed the same, except so much as was occupied by the railroad, to Robert Innes, who died intestate prior to August 1, 1872, leaving Catharine A. Innes, his widow, and three daughters, his only heirs. In a partition proceeding between them, the south third of this 'section was allotted to Ethel L. Innes, now Ethel L. Swan, the appellee in this case. On the 19th of August, 1873, Ethel L. Innes, for the.consideration of $26,666.66, conveyed by warranty deed, with full covenants of title, the said south third of the section to Seth Wadhams, the appellant, the said Catharine A. Innes, her mother, joining in the deed as a grantor. At the time of this conveyance the said Ethel was a minor, and did not attain her majority until in August, 1874. For the deferred payments on this purchase Wad-hams gave to the said Ethel his two notes, of the same date of the conveyance, for the sum of $10,666.66 each, which were secured by a deed of trust on the property, from Wadhams to William H. Holden, trustee, the trust deed containing this recital: “Said notes are given for the purchase money that is to be paid for said land, and said Ethel L. Innes is to confirm the sale of said land immediately upon her arriving at full age, and if she fails or refuses t'o do so, said notes may not be paid until she does confirm the sale, and this trust deed shall not be foreclosed until said sale is confirmed by said Ethel L. Innes.” The note now sued on is one of the notes secured by said trust deed, and matured on the 19th of August, 1876. After appellee attained her majority, to-wit, on the 22d of August, 1874, she executed another deed ratifying her former conveyance, in conformity with her agreement as set forth in the trust deed.
    It is conceded the strip of ground occupied by the railroad of the Illinois Central on the south third of the section, and which was excepted from the operation of Cook’s deed to Innes, contains 8.72 acres, and that fences on either side thereof have been continuously maintained by the railroad company for the last fifteen years. It is also admitted the railroad was constructed at its present location across the section prior to July, 1854, and while the land belonged to the United States. The conveyance of the south third by Ethel to Wadhams, as above stated, was in pursuance of a contract of sale made by her and her two sisters to him, of the entire section, for the sum of $80,000, which, assuming the section contained just 640 acres, (the estimated quantity by government survey,) would make $125 per acre. The section, however, contains 646 acres, being an excess of six acres over that amount. When the note sued on matured, the appellant declined to pay the full amount, on the ground, as he claimed, the land was purchased by the acre, and as the 8.72 acres of it covered by the right of way of the Illinois Central was of no value to him, there was a breach of appellee’s covenants in her conveyances, and a consequent failure of consideration of the note sued on to the amount of $1090, this sum being, as is claimed by appellant, the estimated value of the 8.72 acres of land, at $125 an acre. After some controversy, it was agreed that appellant should pay to appellee the whole of the note, excepting this balance of $1090, and interest thereon, which was to be without prejudice to either party, and it was accordingly done. It also appears the said George E. Cook executed a deed to the said Catharine A. Innes, bearing date August 30, 1880, of all his interest in so much of the said section 17 as is occupied by the Illinois Central railroad, and which is subject to the easement of said company. The present suit is brought on the note maturing August 19, 1876, to recover the above balance.
    The declaration contains three counts,—the first, a special count, setting out all the facts as above stated; the second, a special count on the note, without setting out the facts specially; third, the consolidated common count. To the declaration the defendant filed three pleas: First, general issue; second, that the plaintiff had failed to confirm the sale of land to the defendant; third, that the consideration of the note, to the extent of the unpaid balance, had failed, by reason of the Illinois Central’s right of way over the land. Issues were joined on the first and third pleas, and a demurrer was sustained to the second. The cause was tried by the court without a jury, resulting in a judgment for the plaintiff for the unpaid balance on the note, which, on appeal, was affirmed by the Appellate Court for the First District, and Wadhams brings the case here for review.
    Messrs. Holden & Fabson, for the appellant:
    A contract to convey land by a good and sufficient warranty deed, is not satisfied by a good and sufficient warranty deed which conveys no title, or an incumbered one. Conway v. Case, 22 Ill. 127.
    Where a good title to land is the only consideration for a note, and no good or beneficial title can be made, no recovery can be had on the note. This defence may be availed of by way of a plea of failure of consideration, or want of consideration, or by way of recoupment. Schuchmann v. Knoebel, 27 Ill. 177; Streeter v. Streeter, 43 id. 163; Peck v. Brewer, 48 id. 62; White v. Sutherland, 64 id. 192; Waterman v. Clark, 76 id. 431; Oertel v. Schroeder, 48 id. 133; Wilson v. Wood, 27 id. 203.

      The consideration of the note has failed to the value of the estate which the defendant did not and can not enjoy. Christy v. Ogle’s Heirs, 33 Ill. 298.
    Under the evidence the title to the right of way, subject to the easement, is worthless, and consequently we are entitled to recoup the purchase price paid for the title free from such easement. Major v. Dunnavent, 25 Ill. 262; Weber v. Anderson, 73 id. 439; Wood v. Kingston Coal Co. 48 id. 356.
    We are at liberty to show just what the consideration was, and how it was arrived at, when it was stated at a gross sum in the deed. Sidders v. Riley, 22 Ill. 109; Booth v. Hynes, 54 id. 363; Kinzie v. Pearson, 2 Scam. 515; Richardson v. Clow, 8 Bradw. 91; Belden v. Seymour, 8 Conn. 304; Lawton v. Buckingham, 15 Iowa, 22; Wilkinson v. Scott, 17 Mass. 249; Kimber v. Ferguson, 7 Minn. 442; Irvine v. McKeon, 23 Cal. 475; Coles v. Solsby, 21 id. 47; Bingham v. Weiderwax, 1 Conn. 514; McCrea v. Purmost, 16 Wend. 460; Morse v. Shattuck, 4 N. H. 229.
    As to defendant’s right to recoup the damages growing out of the plaintiff’s inability to make a title free from incumbrance, see Brigham v. Hawley, 17 Ill. 39 ; Waterman v. Clark, 76 id. 430; Bross v. Cairo and Vincennes R. R. Co. 9 Bradw. 366; Oertel v. Schroeder, 48 Ill. 136.
    The real consideration of the note was the estate bought, and not the bond or covenant for title. Mason v. Wait, 4 Scam. 134; Hall v. Perkins, 4 id. 548; Schuchmann v. Knoebel, 27 Ill. 177; Deal v. Dodge, 26 id. 460; Davis v. McVickers, 11 id. 328; Lull v. Stone, 37 id. 229.
    Mr. John Showalter, for the appellee:
    The right of way of a railroad corporation, whether it be spoken of as an irrevocable license, or as an easement, is an incumbrance, merely. Quimby v. Vermont Central R. R. Co. 23 Vt. 387; Richardson v. Palmer, 38 N. H. 212; Beach v.
      Miller, 51 Ill. 208; Dobbins v. Brown, 12 Pa. St. 80; Rawle on Covenants, 79, 100.
    The grantee of an entire tract, part of which is thus incumbered, has his action on the covenant against incumbrances, and the measure of damages is the injury to the market value of the entire tract by reason of the incumbrance. If there be no injury, only nominal damages can be recovered. Stevenson v. Loehr, 57 Ill. 509; Weatherbee v. Bennett, 2 Allen, 428.
    No action lies on a covenant against incumbrance on account of a public easement over the land conveyed, the purchaser being bound to take notice thereof. Bailey v. Miltenberger, 31 Pa. St. 41; Tongue v. Spring, 9 Mass. 28.
    On the one hand the incumbrance is not a breach of the covenant, on the other it occasions no injury to the defendant.
    In addition to the usual covenants, a deed may contain a covenant as 'to the quantity of ground,—an engagement, for instance, that the tract described contains a given number of acres. Such a covenant has no bearing upon the matter of title. Neither do covenants for title have any reference to the quantity of ground in the tract conveyed. 3 Washburn on Real Prop. (3d ed.) 418; Rawle on Covenants, (3d ed.) 524; Boxley v. Stevens, 31 Mo. 201.
   Mr. Justice Mulkey

delivered the opinion of the Court:

Whether the Superior Court ruled correctly in sustaining a demurrer to the defendant’s second plea, is the first question presented by the record for determination. The allegation in the declaration which was sought to be put in issue by the second plea, is in these words : “Plaintiff avers that afterwards, and when she became of age, to-wit, on the 22d day of August, 1874, at, etc., plaintiff made and delivered to defendant her certain deed, wherein she did ratify the deed first above mentioned.” The plea alleges “that the plaintiff has failed to confirm the sale of said land to the defendant.” Taking the most liberal view of the plea, it is certainly but an argumentative denial of the allegation in the declaration, and is defective for that reason. (5 Rob. Prac. 208.) It also fails to put in issue so much of the allegation to which it is pleaded as an answer, as charges that the plaintiff, after she became of age, on a specified day, executed and delivered to the defendant a deed, wherein, etc. The traverse, in this respect, is too narrow,—a well recognized fault in pleading. (Ibid. 205.) Assuming that it was not obnoxious to any of the objections we have just specified, it but seeks to put in issue a fact which the plaintiff would have been bound to prove under the general issue, in order to recover under the first count of the declaration, and such being the case, the plea therefore amounted to the general issue, and would, on motion, have been stricken from the files, and was clearly bad on special demurrer. (Ibid. 218.) The demurrer, however, was general, and did not,'therefore, reach the objection last stated. Whether the other objections to the plea were available on general demurrer, it is not necessary to inquire, for, assuming they were not, and that there was therefore a technical error in sustaining the demurrer to the plea, it is clear the appellant has not been thereby prejudiced, for the general issue was in, and as effectually put in issue the allegation in the declaration to which the plea related as the plea itself possibly could have done, even had it been broader than it was, and the deed of confirmation was put in evidence under the issue thus formed, so that the very question raised by the plea, together with the proofs in support of it, are directly presented by^ the record before us. It is therefore clear the appellant has been deprived of no right by reason of sustaining the demurrer to the plea.

The next and the main question presented for determination arises upon certain propositions which the court refused, on the trial, to hold as the law applicable to the case. Numerous propositions were presented and refused, but no special complaint is made of the court’s ruling, except as to the first, third, fourth and fifth propositions, all of which, in effect, raise the same question, and will therefore be considered together. They are as follows:

“1. That the defendant in a suit on a note given for the purchase money for land, having taken, in his deed from the plaintiff of the land, covenants such as the defendant has from the plaintiff in this case, is entitled to recoup so much of the note as represents the purchase money for the land the title to which is encumbered by the right of way of the Illinois Central Railroad Company, where it is shown that the rights of said company in the right of way render the title thereto, subject to such rights, worthless.
“3. That in this case the defendant is not precluded from asserting a recoupment of the purchase money paid for the land in the right of way, by reason of the balance of the land conveyed being benefited by the location of the railroad upon the right of way.
“4. That the defendant is entitled to a credit on the note, as of its date, of the value of the estate of the Illinois Central Railroad Company in -the land embraced in its right of way, not exceeding the purchase price therefor.
“5. That the defendant is entitled to a credit on the note, as of its date, by the way of recoupment of the value of the estate of the Illinois Central Railroad Company in the right of way occupied by it on the land embraced in plaintiff’s deeds to defendant.”

With respect to such propositions it may be stated, in general terms, they should always state the law applicable to the case made by the evidence and pleadings, in reasonably accurate terms, otherwise they should not be given. Like instructions, when mere abstract propositions of law not pertinent to the proofs or issues in the case, or when based upon a hypothetical fact or state of facts not warranted by the evidence, they should be refused. Of the latter class we regard all the above propositions, and the court therefore properly refused them. They are severally drawn, with more or less distinctness, upon the hypothesis that by the terms of the sale of this land to appellant the consideration paid and agreed to be paid was, in law and in fact, apportioned and divided into as many distinct and equal sums as there were acres of ground, and that these distinct and equal sums were severally paid, and agreed to be paid, for the several acres contained in the entire tract, and that upon the failure of title to any one or more acres of the land, the appellant, by operation of law, became exonerated from the payment of so much of the consideration as appertained or belonged to the acre or acres of land the title of which had so failed,—or, more shortly put, they are drawn upon the theory that the tract of land was not sold as an entirety, but that in law and in fact there was a several sale of each acre, or a sale by the acre, of the entire tract, for $125 an acre. Following this idea with considerable warmth, and apparently great confidence, to its logical results, appellant very naturally reaches the conclusion that whether the facts in this ease be regarded as showing a failure of title to 8.72 acres occupied by the railroad, or a mere easement thereon of indefinite duration, thereby rendering it worthless as a distinct property, the loss is the same in either case, and the consideration of the note has therefore failed to the extent of the amount agreed to be paid for that part of the land, namely, $1090, being the balance on the note for which this suit is brought. Now, it is hardly necessary to say, if this postulate, upon which appellant’s entire argument is based, has no foundation in the record, all conclusions drawn from it must fall with the postulate itself. But before passing upon this question, let us see what the general rules of law are relating to quantity or acreage upon the sale of a tract of land.

The general rule unquestionably is, that where a tract of land is sold for a sum in gross, by its proper numbers, as indicated by the government survey, or by any other specific description by which its exact boundaries are or may be determined, the boundaries to be thus ascertained, in case of a discrepancy, will control the description as to the quantity or number of acres, and in such case neither the purchaser nor the vendor will have a remedy against the other for any excess or deficiency in the quantity stated, unless such excess or deficiency is so great as to raise a presumption of fraud. (Jackson v. Moore, 6 Cow. 717; Noble v. Googins, 99 Mass. 231.) It may be stated as a limitation on the above proposition, that assuming the parties to be acting in good faith, and that there has been no fraudulent misrepresentation of any kind, upon a sale of an entire tract of land by metes and bounds, for a gross sum, neither party will be bound by a statement as to the quantity or number of acres contained in the tract, except where such statement is expressly, or by necessary implication, made the essence of the contract. Of course, where the seller warrants the tract, either expressly or by necessary implication, to contain a certain number of acres, or, which amounts to the same thing, where the sale is by the acre, and the seller makes a misrepresentation as to the number, the latter will, as in any other case of a breach of contract, be liable, and in an action by him for the purchase money the amount of the deficit at the contract price may be recouped. Waterman v. Clark, 76 Ill. 428.

Keeping in view these well recognized principles, let us look at the rights of the parties to this litigation in the light of the facts already appearing, and such as will be developed by the further consideration of the case. As Cook excepted from the operation of his deed to Innes, the father of Ethel, all this land in said section 17 covered by the railroad company’s right of way, including the 8.72 acres in question, it follows she had no title to that part of the south third of the section at the time of the conveyance by herself and mother to appellant, on the 19th of August, 1873, as heretofore stated, nor did she have any title to it at the time of her deed of confirmation to him after she attained her majority. It follows, therefore, that the covenants in both those deeds for title, and against incumbrances, were broken on the delivery of those deeds, and the appellant thereby acquired an immediate right of action; and the fact that appellant knew, at the time these deeds were respectively delivered, there was a defect in the title as to so much of the land as was occupied by the railroad, makes no difference in this respect. (Beach v. Miller, 51 Ill. 206.) Before any steps, however, had been taken by appellant to enforce this liability, to-wit, oh the 30th of August, 1880, Cook, as we have already seen, conveyed to Mrs. Catharine A. Innes, appellee’s mother, by quitclaim deed, all his interest in the land occupied by the railroad in said section 17, which, of course, included the 8.72 acres in question. The effect of this conveyance, as we hold, was to confer upon appellant, by way of estoppel, the legal title to this 8.72 acres of land, subject to the easement of the railroad company. (Beach v. Miller, supra.) Now, if the effect of the occupation and permanent use of the railroad strip is to be limited exclusively to the 8.72 acres in question, then it is clear the appellant has sustained a substantial injury by reason of the easement; but if, on the other hand, the occupation and permanent use of this land for railroad purposes are to he considered with reference to the whole tract viewed as an entirety, then it is equally clear appellee is only technically liable for a nominal sum, for it is very obvious, from the testimony, the value of the land, considered as an entirety, was and is greatly enhanced by reason of the railroad being located and operated where it is.

This brings us to a consideration of the question whether there is anything in the record that warrants appellant’s assumption, throughout the entire argument, that this land was sold. to him by the acre. Looking at this question as one merely of fact, we might content ourselves by saying that it has been conclusively settled against him by the affirmance of the judgment in the Appellate Court. But inasmuch as the refused propositions of law above cited were asked upon the hypothesis that the sale of the land was by the acre, and not as an entirety, it is not improper to inquire, with some particularity, upon what the hypothesis in question is based; for if, in legal contemplation, there is no legitimate proof tending to establish it, it is clear the propositions in question were properly refused. In every sale and transfer of land from one adult person to another, where the parties are capable of contracting, there is of necessity a provisional or antecedent agreement fixing the terms and conditions upon which the transfer is to be made. This agreement, as a general rule, with us, is merely verbal, but it is often in writing. It was in writing in this case, and of course the writing affords the only competent evidence of what that agreement was.

As already appears, the appellee and her two sisters made a joint sale to the appellant of the entire section. The contract of sale, as just stated, is in writing, and bears the same date as appellee’s first deed to appellant, namely, August 19, 1873, and the two instruments are but-parts of the same transaction. By reference to the contract itself, we find that after setting forth the names of the respective parties, it proceeds in these words: “The party of the first part sell, and hereby agree to convey, by good and sufficient warranty deed or deeds, to the party of the second part, (and furnish abstract showing good and sufficient title,) the following described land, to-wit: Section seventeen (17), township thirty-six north, range fourteen (14) east, of the 3d P. M., in Cook county, Illinois, for the sum of eighty thousand dollars ($80,000), which the party of the second part agrees to pay,” etc. This contract nowhere contains the slightest intimation that the land was sold by the acre, but on the contrary, as appears above, it shows beyond all cavil it was sold as an entirety, for the gross sum of $80,000. On turning to the deed of appellee and her mother, to appellant, for her third of the land, we find that it recites, in substance, that they, for the consideration of $26,666.66, thereby conveyed to him “all the following described lot, piece or parcel of land, situated in the county of Cook and State of Illinois, and known and described as follows, to-wit: The south one-third (¿) of section seventeen (17), township thirty-six north, range 14 east,” etc. This deed, so far from showing a conveyance of land at a specific sum an acre, does not so much as contain the word acre or acres in it. So of appellee’s deed of confirmation of August 22, 1874. In short, these deeds and the above contract show conclusively there is not, in contemplation of law, the slightest foundation for the claim of appellant that the land was sold by the acre. The fact that appellant was permitted to swear, on the trial, the land was so sold, can make no difference in that respect. The real contract was reduced to writing, and it can not therefore be contradicted or limited in that manner. It is a familiar doctrine that parol evidence is inadmissible for such a purpose, and the fact it was improperly admitted can make no difference here.

Upon the record before us we assume the Appellate Court must have found, as matters of fact and of law, that the land was sold as an entirety, for a gross sum; that appellant, by means of the several conveyances heretofore mentioned, acquired, before the commencement of this suit, the legal title to the whole of the land purchased of appellee, subject to the easement of the Illinois Central Railroad Company; that while the existence of this easement was a technical breach of appellee’s covenants against incumbrances, and consequently entitled appellant to nominal damages, yet its effect upon the land, considered as an entirety, enhanced rather than diminished its value, so that appellant was really benefited rather than injured by it. In all these findings we fully concur with the Appellate Court, and in so far as they are findings of fact, they are conclusive on this court, whether we were satisfied or not.

Had the appellant seen proper, under these circumstances, to have brought an original action for the technical breach of' the covenants against incumbrances, he would have been entitled to nominal damages, merely, which might well have been fixed at a single cent. He elected, however, to set up this right of action as a defence to the present suit. It is relied on to support appellant’s third plea, which is a plea of. total failure of consideration of the note as to the unpaid balance for which the suit was brought. The proofs clearly do not sustain this statutory defence, as we have just seen. We say statutory, for by - the common law such a plea to a promissory note is not admissible at all. Our statute, however, with certain limitations, allows the defendant in such an action to interpose as a defence either a want of consideration or a total or partial failure of consideration. Now, these are three distinct defences, and to be made available they must be pleaded specially. The defendant is not permitted to set up one of those defences in his plea, and prove another under it. If there has been only a partial failure of the consideration, as was the case here, and that a mere nominal sum, it should have been pleaded, so far as the third plea is concerned, as a partial defence to the action, so as to have enabled the plaintiff, in case no other plea had been filed, to have taken judgment as to the part not answered by the plea. On the other hand, under a plea of total failure of consideration, the defendant will not be permitted to show a partial failure, or that the instrument was given without consideration. All these positions are fully sustained by the authorities. The plea in question being one of total failure of consideration, as already said, the proofs did not sustain it.

If it be suggested that the plea in question is a mere plea of recoupment, and, as such, appellant’s damages were provable under it whether they existed to the extent claimed by the plea or not, we submit the authorities do not sustain the position. Recoupment, in its strict common law sense, is a mere reduction of the damages claimed by the plaintiff, by proof, under the general issue, of mitigating circumstances connected with or growing out of the transaction upon which the plaintiff’s claim is based, showing that it would be contrary to equity and good conscience to suffer the plaintiff to recover the full amount of his claim. (5 Rob. Prac. 265.) But the same object is sometimes attained where it is supposed the defendant’s damages are equal to or in excess of the plaintiff’s demand, by setting up the mitigating circumstances in a special plea in bar of the plaintiff’s entire cause of action, without pleading the general issue at all. Waterman v. Clark et al. supra, affords an instance of a plea of this character, yet it is well settled a partial reduction of damages can not be shown under a plea of this kind, (7 Wait’s Actions and Defences, 555,) no more than a partial failure of consideration can be shown under a plea of total failure, or vice versa. While, by reason, of the general issue having been filed, there can be no question as to the appellant’s right to recoup, in this case, to the extent warranted by the proofs; yet it is manifest the allowance of merely nominal damages being all that he is entitled to, would make no appreciable difference in the amount of the judgment. A cent the one way or the other would certainly make no practical difference, and the maxim, de minimis non curat lex, applies.

The judgment will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Craig Mr. Justice Dickey :

license: Public Domain

text:
    Leroy B. Firman v. Helen Firman.

      Filed at Ottawa January 23, 1884.

    1. Practice—postponing hearing in chancery—of the grounds therefor. In a suit in chancery pending in the circuit court of Cook county, the defendant’s solicitor was notified, on January 31, that the cause would be heard on February 2 following, on which latter day he entered a motion to postpone the hearing five days, to enable him to examine the testimony and papers, and prepare for trial, which was denied. It did not appear from the affidavit in support of the motion that the solicitor was engaged during that time in any other court, and no reason was shown why he could not examine the evidence and be ready between the time of the notice and the time appointed for the hearing, there being nothing complicated in the case: Held, that there was no error in overruling the motion.
    2. Alimony—of the reasonableness of the amount. After a decree of divorce in favor of a wife, against her husband, for extreme and repeated cruelty, which gave her the custody of the four children of the marriage, aged, respectively, eight, eleven, fourteen and seventeen years, the court awarded to complainant, as alimony, for the support of herself and children, until the further order of the court, the use of the homestead, valued at about $6000, and the furniture and household goods, valued at about $1500, and in addition thereto $60 per month, or $720 per annum. The proof taken, on reference to the master, was conflicting as to the means and financial ability of the defendant. In addition to the homestead, it appeared he owned three brick buildings, valued at from $6900 to $9937, which were incumbered about $6000, and other real estate of the value of about $800, including land in Missouri, and forty-seven shares in the Chicago Telephone Company, of $100 per share, the market value of which was above par, and $3000 of stock in the Illinois Central Telephone Company, and that he was receiving an annual salary of $2700, and that the rental value per annum of the three brick buildings was about $1000. It also appeared that he owed debts, aside ■ from the incumbrances on his lots, of about $15,000: Held, that in view of the defendant’s financial condition, the alimony allowed was not unreasonable.
    3. Solicitor’s fee—in suit for divorce. On a bill for divorce by a wife against her husband, where the ground of divorce charged was cruelty, and two trials were had by a jury, but there was nothing in the case to call for a long and protracted trial, and the evidence as to the value of the solicitor’s services was conflicting, the court required the defendant to pay the wife’s solicitor $300 in addition to a sum before paid, making $600 in all, and decreed to the solicitor a tract of land in Missouri worth at least $320, and this court affirmed the decree, except so far as it gave the tract of land, in which respect it was modified.
    4. Costs—apportionment of costs, when unnecessarily made. After a defendant in a suit for divorce had withdrawn his answer and allowed a default to be taken against him, only reserving the right to contest the case in respect to alimony, solicitor’s and other fees, the complainant made $342.15 costs for master’s and reporter’s fees. It appeared that much of the evidence had no proper place in the record, and might have been dispensed with. The court below required the defendant to pay all these costs, but this court, on appeal, modified the decree by requiring the defendant to pay only one-half of that amount.
    • Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. T. A. Moban, Judge, presiding.
    This was a bill for divorce, filed by Helen Firman on March 25, 1880, against Leroy B. Firman, on the ground of extreme and repeated cruelty, and for the custody of the' children of the marriage, and for 'alimony. The defendant answered, denying the alleged acts of cruelty and other ill-usage. On June 12, 1880, complainant filed a supplemental bill, charging other and various acts of violence and ill-treatment by the defendant, all of which the answer denied, to which answers replications were filed. A trial was had, resulting in a verdict for the defendant. This was set aside, and a new trial granted. In February, 1882, the case was again tried, but the jury failed to agree. On March 22, 1882, the defendant withdrew his answer, when his default was taken, and upon proof in open court the defendant was found guilty as charged, and a decree of divorce granted. The question of solicitor’s fees and disbursements, and all questions concerning alimony and the title to property then in complainant or described in any deeds held in escroto, were reserved, and the matters referred to the master in chancery to take evidence on the questions so reserved, to be reported to the court.
    The following is a fair statement of the defendant’s assets, as shown by testimony taken in his behalf:
    Homestead, 330 Walnut street, .... $6,500
    Three brick houses, - -" - - . . 6,900
    Half lot at Austin,......25
    Half of seven lots in Hyde Park, ... 500
    Missouri land, say from $300 to $800, - - ' - 800
    Forty-seven shares Chicago telephone stock, - 4,700
    Thirty shares Illinois Central stock, ... 3,000
    Household furniture,......1,500
    Total,.......$23,925
    By the same testimony his liabilities were shown to be as follows:
    Incumbrances on three brick houses, ... $4,000
    “ on same for back interest, - . 2,250
    Indebtedness to E. B. Chandler & Co. - 4,000

      “ to E. B. Chandler, individually, - 500
    “ to Knickerbocker & Holdom, - - 1,200
    “ to Northwestern Nat. Bank, - . 1,000
    “ to George C. Christian, ... 800
    Dickinson & Firman debts, .... 8,000
    Total,.......$21,750
    The summary of defendant’s assets, from complainant’s testimony, is as follows:
    Three brick houses and lots on Walnut street, - $9,937
    Stock in Chicago Telephone Company, - - 6,100
    Stock in Illinois Central Telephone Company, - 3,000
    Total,.......$19,037
    Deduct mortgages on the three houses, - 5,800
    Balance,......$13,237

      The annual income of defendant is as follows:
    Salary,.........$2,700
    Bent of three houses, - - • - - - 1,089
    Income on Chicago telephone stock, - - - 376
    Income on Illinois Central telephone stock, - 240
    Total,.......$4,415
    Deduct int. on $4000 loan, - $240
    Int. on $1800 loan, 7 per cent, - 126
    Taxes on three houses, say, - - - 150
    Repairs and insurance, say, - - - - 100
    - 616
    Balance,......$3,799
    It appears that the title to the homestead and the Missouri land was in the complainant, defendant having caused the conveyances thereof to be made to her.
    Mr. Geo. C. Christian, for the appellant:
    The decree is wrong in the allowance of solicitor’s fees. The amount was excessive for the work done, and much was done which was wholly unnecessary. Foss v. Foss, 100 Ill. 581; Wilson v. Wilson, 102 id. 297; Ross v. Ross, 78 id. 402; Dinet v. Eigenmann, 80 id. 274; Stewartson v. Stewartson, 15 id. 145; Von Glahn v. Von Glahn, 46 id. 135; Robbins v. Robbins, 101 id. 417; Becker v. Becker, 79 id. 532; Wightman v. Wightman, 45 id. 167; Andrews v. Andrews, 69 id. 609; Draper v. Draper, 68 id. 17; Blake v. Blake, 70 id. 618; Same case, 80 id. 523; Russell v. Russell, 4 Greene, (Iowa,) 26 ; Williams v. Williams, 29 Wis. 517.
    Mr. D. W. Jackson, for the appellee:
    The material questions (alimony and solicitor’s fees) involved various subsidiary matters, such as, first, the resources of the husband; second, the extent of his delictum;■ third, the necessities of the injured wife; fourth, the rank in life of the parties; fifth, the number and ages of the children; and sixth, the extent, character and value of the services rendered by the solicitor for the wife. These were all necessary questions to be considered. Bergen v. Bergen, 22 Ill. 187.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill for divorce. No question is raised as to the decree awarding the divorce, but it is claimed by the defendant in the bill that the decree, as respects alimony, solicitor’s fees, the master’s and reporter’s fees, is erroneous.

On the day the cause was set for a hearing, (February 2, 1883,) counsel for defendant entered a motion to postpone the hearing five days, to enable him to examine the testimony and prepare for trial. This motion the court overruled. On January 31 defendant’s attorney was notified that the cause would be heard February 2, and it does not appear, from the affidavit, that he- was engaged during that time in any other court, and no reason is shoivn why he could not examine the evidence and be ready for trial between the time he received notice and the day the cause was set for a hearing. There was nothing complicated in regard to the case which required a long time to prepare for a hearing, and so far as appears from the record, the decision of the court upon this point was not unreasonable, and could result in no injury to the defendant.

In the final decree the complainant was awarded the custody of the four children, aged, respectively, seventeen, fourteen, eleven and eight years. She was decreed the use of the homestead until the further order of the court. The furniture and household goods were decreed to her as her own separate property, and in addition the defendant was decreed to pay her $60 per month alimony, from February 1, 1883, payable on the fifteenth of each month. It appears from the testimony, that defendant receives a salary of $2700 per annum; he receives the rents from three buildings in Chicago, and an income of a certain amount from stocks owned by him. In view of the financial condition of defendant, and his income, we do not regard $720 per annum an excessive allowance for the support of complainant, and for the support and education of the four children. When the children arrive at a suitable age to support themselves, it may then be proper for the circuit court, upon a proper showing, to modify the order and make a reduction of the amount required to be paid, but for the present we do not regard the amount, in view of all the facts and circumstances of the case, too high.

As to complainant’s solicitor’s fees, previous to the rendition of the final decree $300 had been paid by defendant, and the court decreed the further payment of $300 within four months, and also decreed that one hundred and sixty acres of land in Barton county, Missouri, be devoted to the same purpose. This land belonged to the defendant, but the title was in the name of complainant. She had, however, made a deed to the defendant conveying the land to him, but it was held in escrow in the hands of Mr. Black, to be delivered upon certain conditions named in a written agreement entered into between the parties. The evidence is not very clear as to the value of the land, but it seems to be worth at least $320, which would make $920 awarded to the solicitor for complainant by the decree. The testimony in regard to the value of the services of the solicitor for complainant is not harmonious. He called several attorneys, who testified that the services (taking the statement of the solicitor as to the amount of labor to be correct) were worth from $1500 to $2000, while on the other hand, taking as a basis for the services rendered the evidence of the solicitor for defendant, it was proven by a number of witnesses that the services were worth only from $400 to $500. The cause was tried twice before a jury, but there was nothing involved in the case which could make a long and protracted trial. The charge in the bill was cruel treatment, and so far as is disclosed by the evidence contained in the record, no reason is perceived which would render it necessary to consume more than four or five days on either trial. One of the solicitors for the defendant testified that all the work done by the attorney for complainant, from the preparation of the bill to and including the decree, should not have occupied him exceeding twenty days, “and the average lawyer at the bar could readily have disposed of it in less time. ” This, at $25 per day, which the evidence tends to show" was reasonable for the labor performed in this case, would make the amount $500. Another witness, who had been engaged in all the trials as solicitor for defendant, testified that a lawyer of ordinary ability could have done all the labor in the case, from the filing of the bill down, in fourteen days, which, at $25 per day, (the value of the services for fourteen days,) would make $350. We are not, however, disposed to place as low an estimate upon the services rendered as might be done from this testimony, but we are satisfied, after a careful examination of all the evidence, that the amount allowed by the circuit court was too large. We are disposed to approve the allowance of $300 named in the decree, in addition to the $300 which had previously been paid, but the decree, in so far as it gives the land in Barton county, Missouri, to the solicitor for the complainant, will have to be reversed. In so far as that land is concerned, the decree will be modified, requiring the custodian of the deed to deliver it to defendant. Indeed, we are aware of no authority which would sanction a decree awarding a tract of land to a solicitor for services in a case of this character.

The court also required the defendant to pay $342.15 for master’s and reporter’s fees. After the second trial of the cause the defendant withdrew his answer, and allowed a default to be entered, but reserved the right to contest the case in so far as alimony, solicitor’s fees, and other fees were concerned. The $342.15 objected to by the defendant was all incurred after the default, and it is obvious, upon an examination of the evidence, that much of it has no proper place in the record, and might have been dispensed with. After default, one or two witnesses, to establish the cruel treatment, were ample to establish that fact. The only other question that could arise was as to the proper amount of alimony to be allowed. This, of course, necessitated an inquiry in regard to the property and income of the defendant. If he, upon examination, failed or refused to give a full and fair statement, then resort might be had to other evidence. But an inquiry of this character could not in reason result in an expending of the amount ordered to be paid. It is true, as a general rule, in chancery eases, the disposition of costs is a matter resting in the sound discretion of the court, and on appeal the discretion of the circuit court will not be reviewed unless that discretion has been abused; but here it is manifest that the discretion of the court was not properly exercised, and we think it should be revised.

The decree will be modified, requiring only one-half of the amount to be paid by the defendant. In all other respects, aside from this modification, and the modification in regard to the land in Barton county, Missouri, heretofore indicated, the decree we regard as correct, and it will be affirmed.

Decree reversed in part and in part affirmed.

Mr. Justice Dickey :

I concur in the reversal of this decree, upon the ground that it was error to take from appellant his land in Missouri. I do not concur in what is said about the length of time occupied in the proceedings, being unreasonable, nor in the modification of the decree as to costs. It does not appear to my mind that appellee was responsible for the length of the proceedings in any greater degree than was appellant. The same may be said as to the amount of the costs. I agree that where the discretion vested in the trial court has palpably been abused, the same may be re- ' viewed here. In this case, so far as I can see, there is no such abuse of discretion of that court. Appellant did not specifically object to any of the costs as unnecessary, or call upon the court below to adjudge in regard to the same. I think the cause should be remanded, that these matters be adjusted in the lower court. Without the aid of a master, this court, as I think, is not well adapted to the examination of bills of costs in the lower court.


author: Mr. Chief Justice Sheldon

text:
    The Washburn & Moen Manufacturing Company v. The Chicago Galvanized Wire Fence Company.

      Filed at Ottawa January 23, 1884.

    1. Parol evidence—in contradiction of written contract—as to whom the rule obtains. The rule that the terms of a written contract must be shown by the writings alone, and that oral testimony exhibiting the various negotiations between the parties leading up to its consummation is to be excluded, applies only as between the parties to written instruments, and those claiming under them. Strangers to a written instrument, when their rights are concerned, are at liberty to show by parol evidence that the contract of the parties is different from what it purports to be on the face of the writing.
    2. Thus, where a company claiming a patent upon an invention, settled and adjusted a suit brought by it against another for an infringement of the patent, and gave a license to manufacture under the patent upon payment of a certain royalty by the licensee, the contract providing that in case of any subsequent licenses being granted at a less royalty, the first licensee should only pay such reduced rate, on a bill by the latter to enforce such agreement he was allowed to show by parol that a subsequent contract of settlement with another party, which on its face appeared to be a grant of a license free of royalty, in payment of the price for certain other patents transferred to the licenser, was but a contrivance and device to cover up and conceal the fact of a grant of a license without royalty, or at a reduced rate.
    3. Specific performance—contract as to royalty under patent right— of the rate to be paid in case of subsequent contracts with others at a reduced rate. The holder of letters patent for the manufacture of barbed fence wire gave the complainant a license to manufacture 1200 tons annually of the fence wire, at a royalty of seventy-five cents per hundred pounds manufactured, the licenser fixing the price at which the barbed wire should be sold, and agreeing, in case of any subsequent licenses being granted at a less royalty, the first licensee should not be required to pay any more than such subsequent licensee. Afterwards, the licenser granted a license to another, by which the latter was authorized to manufacture a given number of tons of the same wire free of royalty, and a like amount for a reduced royalty. On bill by the first licensee to specifically enforce the contract to reduce the royalty, it was urged that as the complainant had sold all the wire he was allowed to manufacture, he was not injured by the grant of the subsequent license: Held, that the question of damages was not involved, but the royalty the complainant was to pay,—whether he was to pay that originally agreed to be paid, or the reduced rate in the subsequent license, and that such a contract was enforceable.
    4. A granted a license to B to manufacture 1200 tons of barbed wire fence, for which B was to pay A a royalty of seventy-five cents on the hundred pounds, under a contract that if A granted any licenses in the future at any lower royalty, then B was to have the benefit of such reduction, and pay only the same royalty. Afterward, A granted a license to 0, giving him the privilege of manufacturing 10,000 tons of the barbed wire, the first 4000 tons to be free of royalty, and G to pay fifty cents royalty on the next 4000 tons he might manufacture, and seventy-five cents on the remaining 2000 tons. B filed his bill against A to enforce the agreement to reduce the royalty, upon the hearing of which the court granted the relief sought, decreeing that B should not be required to pay an^ royalty on any part of the wire made by him. O was not bound to manufacture more than 4000 tons yearly, and the proof showed that up to the time of the hearing G had not manufactured in excess of 4000 tons: Held, that if G manufactured in excess of 4000 tons, so that he paid a royalty, B also should pay a proportionate one, and that in respect of such subsequent manufacture by 0 the decree should be modified, allowing two-tenths of B’s manufacture to go free, and charging him, as to the residue, the same as 0 was to pay.
    5. Patent bight—part owner may use same without consent of the others. Each of the several owners of letters patent, without the concurrence of all the owners, may lawfully exercise and use the patent privilege.
    6. Pasties—objection for want of parties—of the proper time—and whether it should avail. Where objection to the non-joinder of a person as a party defendant in chancery is not taken by demurrer, or by plea or answer, and is first made at the final hearing, it is not favorably received; and in such case, to be of avail, it must appear that the decree will have the effect of depriving the omitted party of his rights.
    7. Same—on bill for specific performance. It is a general rule that no persons are necessary parties' to a bill for the specific performance of a contract except the parties to the contract itself. The rule that all persons having an interest in the subject matter of the litigation must be made parties, does not have full application to such a bill.
    8. On bill by a licensee under letters patent to enforce specifically a contract to reduce the royalty to be paid upon a contingency, a person having an interest in the letters patent, but not a party to the contract, and having no interest in the royalty to be paid appearing from the pleadings or evidence, is not a necessary party.
    Apeeal from the Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Mr. W. C. Goudy, for the appellant:
    The evidence showing the abortive attempts to settle with Haish was not admissible. All prior negotiations were merged in the written contract, which is supposed to be the true expression of what the parties eventually agreed upon. In the settlement with Haish appellant acquired the full control of his valuable patents, and a release of all damages for past infringement of them.
    The complainant has suffered no injury by reason of the settlement with Haish, and it will suffer none. The decree allows the complainant to manufacture on better terms than Haish secured, and reduces the royalty to a less amount than was allowed to any licensee since January 1, 1881.
    Ellwood was an indispensable party to the bill, being the owner of one-half of the patents embraced in the license to the complainant, and entitled to receive a part of the royalty. This objection is good on the hearing, or on appeal or error. Spear v. Campbell, 4 Scam. 426; Story’s Equity Pleading, secs. 236, 541; Mallows v. Hinds, 12 Wheat. 193; Hallett v. Hallett, 2 Paige, 15; Herrington v. Hubbard, 1 Scam. 569; Prentice v. Kimball, 19 Ill. 322; Lynch v. Rotan, 39 id. 14; Atkins v. Billings, 72 id. 597; Hopkins v. Roseclare Lead Co. id. 377.

      Mr. W. P. Black, and Mr. George C. Fry, for the appellee :
    In bills for specific performance of contract, only the parties to the contract are proper or necessary parties, and therefore Isaac L. Ellwood was not a necessary party to this proceeding. Story’s Equity Pleading, sec. 74 a; Fry on Specific Per. sec. 79; Barbour on Parties, 334; Story’s Equity Pleading, sec. 226 b; 1 Daniell’s Chancery Prac. 230; Waterman on Specific Per. sec. 58; Batton on Contracts, 324, p. 181; Pomeroy on Contracts, 544, see. 483; Gibbs v. Blackwell, 37 Ill. 191; Smith v. Sheldon, 65 id. 219; Roby v. Cossitt, 78 id. 638; Tasker v. Small, 3 M. & C. 63; Mole v. Smith, Jac. 490; Chapman v. West, 17 N. Y. 125; Humphreys v. Hollis, 1 Jacobs’ Ch. 73.
    If Ellwood were a necessary party, that objection should properly have been raised in the court below, by demurrer,plea or answer. Story’s Equity Pleading, secs. 74, 236, 237, 541; Allen v. Woodruff, 96 Ill. 11; Prentice v. Kimball, 19 id. 320; Conwell v. Watkins, 71 id. 488; Home Ins. Co. v. Myer, 93 id. 274; Howell v. City of Peoria, 90 id. 104; Knapp v. Marshall, 26 id. 63; Thomas v. Adams, 30 id. 37; Booth v. Wiley, 102 id. 84; Scott v. Bennett, 1 Gilm. 646; Milligan v. Milledge, 3 Cranch, 219; Story v. Livingston, 13 Pet. 359; Schwoerer v. Boylston Market Association, 99 Mass. 285.
    It is competent for any one of the joint owners of letters patent to issue such a license, and in such case neither the licenser nor licensee can be interfered with, or compelled to account to the joint owner not a party to the license. Curtis on Patents, (4th ed.) secs. 189, 191; Williams on Real Prop. 307; Clum v. Brewer, 2 Curtis, 506; Vose v. Singer, 4 Allen, 226; Mathers v. Green, 1 Law Rep. 29; De Witt v. Manf. Co. 12 N. Y. (5 Hun,) 302; Same case, 66 N. Y. 459; Dunham v. Railroad Co. 7 Biss. 223; Edwards v. Normandy, 3 N. R. 562; Same case, 12 W. R. 548; Gates v. Frazer, 9 Bradw. 624; Parkhurst v. Kinsman, 1 Blatchf. 496; Hindmarch on Patents, 67, 236; Bump on Patents, 141; May v. Chaffee, 2 Dill. 385.

      Appellee was properly permitted to show that the entire agreement of settlement, in connection with which it received its license, was not expressed in such license. Gammon v. Huse, 100 Ill. 234; Ludeke v. Sutherland, 87 id. 481; Morris v. Tillson, 81 id. 607; Mann v. Smyser, 76 id. 365; Phillips on Evidence, 657; Clifford v. Turrell, 2 Y. & Col. Ch. Cases, 148; Shaw v. Leavitt, 3 Sandf. Ch. 178; Tyler v. Disbrow, 40 Mich. 415; Morgan v. Griffith, 6 L. E. (Exch.) 70; Combs v. Bradshaw, 6 Bradw. 115; Same case, 102 Ill. 428; Hersom v. Handerson, 1 Foster, 224; Greenleaf on Evidence, secs. 26, 284a, 285, 304.
    Appellee is not bound by the statements contained in the papers executed between appellant and Haish, appellee being neither a party nor privy thereto. 2 Parsons on Contracts, 556, 557; Krider v. Lafferty, 1 Whart. 303; Strader v. Lambeth, 7 B. Mon. 589; Reynolds v. Magness, 2 Ired. L. 26; Edgerly v. Emerson, 23 N. H. 555; 1 Greenleaf on Evidence, sec. 279; Taylor v. Baldwin, 10 Barb. 582; Venable v. Thompson, 11 Ala. 147; Badger v. Jones, 12 Pick. 371; Overseers v. Overseers, 10 Johns. 229.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

Prior to December 15,1880, the Washburn & Moen Manufacturing Company, having acquired the control of various patents for the making and use of barbed fence wire, brought various suits in the United States Circuit Court for the Northern District of Illinois, against alleged infringers of its patents, and the causes having been heard on that day, a finding was announced by the court in favor of the company, sustaining its patents. The final decree was actually entered on April 25, 1881. There were two sets of suits,—two suits against each defendant,—in one of which said company was the sole complainant, and in the other the company and Isaac L. Ellwood were complainants, jointly.

Soon after the announcement of the finding of the court, all the defendants in those suits except Jacob Haish, and also other alleged infringers, settled with the Washburn & Moen Manufacturing Company, and in all cases except two (one omitted by inadvertence, and in the other the patent being regarded valueless,) it took from the parties assignments of the patents held by them, and the parties took licenses from the company, and agreeing to pay royalty on future manufacture. On January 24, 1881, the said company made a settlement with the Chicago Galvanized Wire Fence Company, one of the defendants in said suits, and issued to it a written license for the manufacture and sale of 800 tons annually of barbed fence wire, (afterward increased to 1200 tons,) upon -payment of a royalty of three-fourths of a cent on each pound. The tenth clause of the license contained the provision: “And the royalty to be paid under this license shall not be greater than that charged to any other party licensed after the first day of January, A. D. .1881, under the said several letters patent” named in the license; and that in case a license should be given to any party at a less royalty, that “then and thereafter the royalty to be paid under this license shall be the same as such reduced royalty. ”

On September 27, 1881, the said Chicago Galvanized Wire Fence Company filed its bill in equity in the Superior Court of Cook county, against the Washburn & Moen Manufacturing Company, for the purpose of obtaining the specific enforcement of said clause ten in the aforenamed license, the bill alleging a certain settlement, made after the issuance of said license, by the Washburn & Moen Manufacturing Company with Jacob Haish, one other of the defendants in the suits above named, under the terms of which settlement it was alleged Haish was licensed to manufacture barbed fence wire to the extent of 4000 tons annually, free of royalty, under that company’s patents, and the bill prayed allowance to complainant of the benefit of all reduction of royalty made to said Haish. The court below decreed in favor of the complainant. The decree was affirmed on appeal to the Appellate Court for the First District, and the defendant appealed further to this court.

The settlement with Haish was consummated on the 26fch day of July, 1881, and was attended with the execution of the following writings:

First—A license from the Washburn & Moen Manufacturing Company to Haish, in terms substantially identical with those to other licensees, authorizing the manufacture of 10,000 tons of barbed fence wire yearly, at three-fourths (|) of a cent per pound royalty.

Second—An assignment by Haish of the various patents held by him, pertaining to the business of manufacturing barbed fence wire, to the Washburn & Moen Manufacturing Company and I. L. Ellwood.

Third—An exclusive license to Haish for the making, using and selling of barbed fence wire under the patents so assigned by him, without royalty.

Fourth—A license to Haish for the use of the Stevens machine for barbing wire, without royalty.

Fifth—A release from the Washburn & Moen Manufacturing Company and Ellwood, to Haish, of all claim for damages for infringement of fence wire patents owned or controlled by them, or either of them.

Sixth—A release by Haish to the company and Ellwood of all similar claims.

Seventh—An agreement between Washburn & Moen Manufacturing Company and Haish, reciting the purchase from and conveyance by Haish of his patents, his release of claims for damages, and his acceptance of a license from the company, and then providing, in substance, that the company, by itself or licensees, will manufacture 8000 tons of barbed fence wire every year until February 27, 1894, and pay to Haish until that time seventy-five cents per hundred pounds upon the wire so manufactured, not exceeding 4000 tons each year, and a further sum of twenty-five cents per hundred pounds on any excess over that amount each year, up to 4000 tons, but not exceeding that; that the company should not, however, pay any part of such sum to Haish, unless he shall have first paid or tendered the company, as royalty, under his license from the company, a sum equal to the amount he shall demand from the company.

At the same time the Washburn & Moen Manufacturing Company paid Haish, in cash, $10,000, (the amount he had paid for the Stevens machine invention,) and agreed that Haish might withdraw from the court the $25,000 which had been paid in by him to. cover damages for infringement in his manufacture up to the entry of the final decree, and that a decree for nominal damages should be entered in the suit of the company against Haish, without costs to either party. The similar suit in which the Washburn & Moen Manufacturing Company and Ellw'ood were complainants, and Haish defendant, was also disposed of in the same manner.

The main controversy in this case is upon a question of fact as to what was the real character of this transaction of the 26th of July, 1881. The contention of appellee is, that the real arrangement with Jacob Haish was a mere settlement of a troublesome litigation upon a basis of an allowance to Haish of the right to manufacture 4000 tons of barbed fence wire per annum, free of royalty, with an abatement of twenty-five cents per hundred pounds upon the royalty exacted from other licensees, upon his annual manufacture above 4000 tons, up to 8000, the arrangement being concealed under a pretended purchase of Haish’s patents, payment for which was to be made practically in a rebate of the royalties nominally exacted from Haish under the license issued to him.

There is.a preliminary question raised as to the admissibility of evidence, it being contended by appellant that the writings alone are to be taken to show what the real contract was, and that the oral testimony exhibiting the various negotiations between the parties, leading up to the settlement, is not to be considered. The rule of evidence under which this is urged, applies only as between the parties to written instruments, and those claiming under them. Strangers to a written instrument, when their rights are concerned, are at liberty to show, by parol evidence, that the contract of the parties is different from what it purports to be on the face of the writing. 2 Parsons on Contracts, 556, 557; Krider v. Lafferty, 1 Whart. 303; Strader v. Lambeth, 7 B. Mon. 589; Reynolds v. Magness, 2 Ired. L. 26; Edgerly v. Emerson, 23 N. H. 555.

The oral testimony on the part of the respective parties detailing the negotiations which preceded the settlement, was conflicting. That on the side of appellee quite satisfactorily marks the transaction as of the character contended by appellee, while that on the part of appellant goes to show that the arrangement was an actual purchase by appellant of very valuable patents from Haish, which it was important to acquire, and that the provision as to the payment for the patents acquired from Haish, by a repayment of royalties received from Haish, was a bona fide mode of such purchase. We shall not undertake to go into a discussion in detail of the voluminous mass of evidence in the case, and will but advert to some circumstances as giving corroborative force to the testimony on the part of appellee as to the character of the settlement made with Haish.

Although in the suits above named the decree was in favor of the Washburn & Moen Manufacturing Company, in the United States Circuit Court, the litigation was liable to be continued by taking the decree to a higher court for review, and it seemed a desirable thing to effect a settlement of the matter. Settlements were made with all the other defendants. Haish alone stood out, and threatened to continue the litigation. The defendants in the suits were all liable, under the decree, for damages for past infringement. The settlements embraced the adjustment for past damages and license for future manufacture. The settlements were uniform in the respect of license for future manufacture,—of the exaction of a royalty of seventy-five cents per hundred pounds of annual manufacture, and of limit of amount of manufacture, but the extent of the limit varying; and there was a general uniformity as to past damages, they being fixed at sixty cents per hundred pounds of manufacture, the parties to assign all patents they held, and to be allowed therefor in abatement from past damages, varying from ten cents per hundred pounds manufactured, to nothing, according to the value of the patents, and such value entered into consideration in fixing the amounts of tonnage in licenses given.

It appears that on April 25, 1881, immediately after the court had settled finally the terms of the decree, the principal attorney of the Washburn & Moen Manufacturing Company made to the attorneys of Haish a proposition of settlement, upon the basis of a release from all liability for past infringement and a free license for the future. Upon that basis negotiations thenceforward proceeded, until the consummation of the settlement on July 25, 1881. It appears to have been made the subject of quite anxious concern and study, after essentials had been agreed upon, as to the form in which the papers should be cast, to avoid, as there may be reason to think, the appearance of a reduction of royalty to Haish. A form of written request to the Washburn & Moen Manufacturing Company to purchase from Haish his patents and claims, and arrange for the payment for the same out of the royalties to accrue from Haish under his license, was prepared for signature by the company’s licensees, they being about forty in number, and the signatures to it of all of them but three were obtained, appellee being one of the three. Upon the execution of the papers, on July 25, Mr. Washburn requested that the matter be kept secret for a time, to give opportunity to procure the consent of licensees. This tends to show a consciousness of the parties that there was a reduction of royalty to Haish, and a necessity of obtaining the consent of the licensees, so as to preclude them from avail of the benefit of such reduced royalty under the provisions of their licenses in that regard.

Haish assigned his own patents and the Stevens machine patent. The thing of chief value in Haish’s properties, according to the evidence, was what is called his “S” barb patent; but he took back an exclusive, unlimited license to make, use and sell under all his own patents that he assigned, without royalty. As to the Stevens machine patent, the evidence tends to show the Washburn & Moen Manufacturing Company to have been the owner of an undivided half of that before and at the time of Haish’s assignment to the company, and we understand the law to be that each of the several owners of letters patent, without the concurrence of the joint owners, can lawfully exercise and use the patent privileges, and license others to do so. (Clum v. Brewer, 2 Curt. C. C. Rep. 307; Dunham v. Railroad Co. 7 Biss. 223; Vose v. Singer, 4 Allen, 226; Mathers v. Green, 1 L. R. (Ch. App.) 29; Curtis on Patents, secs. 189, 191.) And besides, Haish was granted a license under the Stevens machine patent, without royalty. Haish did get from the Washburn & Moen Manufacturing Company $10,000 cash. He withdrew the $25,000 deposit in court to cover damages for infringement accruing pending the litigation. He was released from all other back damages for infringement, which seem to have been estimated, upon some basis of calculation, at $82,000, in addition to the $25,000. Additional to this, the payment back to Haish of the amount of the royalty which he pays under his license in the manufacture of 4000 pounds, and one-third of that he pays on the next 4000 pounds, (amounting to $80,000 a year, as calculated by counsel, if Haish manufactured to that full limit,) would be the allowance of a consideration for the transfer of Haish’s patents quite disproportionate, in our opinion, to any fair value of them, under the circumstances, upon any showing of the evidence, and indicative that such repayment of royalty was not in truth the consideration given for the purchase of the patents.

The court below found that the purchase of Haish’s patents and the Stevens machine patent was a secondary matter, and was used to give the appearance of a consideration to what was in reality a license free of royalty for the manufacture of 4000 tons, yearly, of barbed wire, and of 4000 more tons at a less rate, by twenty-five cents per hundred pounds, than to the other licensees, and so a reduction to that extent, of which appellee had a right to avail itself under its license. Without further remark upon the evidence, we state as our conclusion, upon its examination, that we do not find reason sufficient for disturbing the decree on the ground of the finding of the court not being warranted by the testimony.

It is insisted by appellant that even if it be true that it has granted a license to' Haish for the manufacture of 4000 tons free from all royalty, appellee has not a right to maintain the present bill, for the reason that it has not sustained any pecuniary injury from the grant of such a license to Haish; that as by the terms of the license the Washburn & Moen Manufacturing Company alone fixes the price at which the barbed wire shall be sold, and as appellee has sold all the wire it was permitted to manufacture, by the terms of its license, at the established price at which all licensees were required to sell, it would be a matter of entire indifference to appellee whether Haish or any other licensee was charged a royalty or not. That is not the question whether appellee sustains damage from a reduction of royalty to any one else, but the question is as to the amount of royalty appellee is to pay under its license,—whether it is entitled to the benefit of the promise made to it, upon valuable consideration received, that if appellant should license any other party at a less royalty than that exacted of appellee, then, thereafter, the royalty to be paid by appellee should be the same as such reduced royalty. If there has been a reduction of royalty to Haish, then clearly appellee, under its contract, is required to pay only such reduced royalty.

It is objected to the decree that it reduces appellee’s royalty to a less amount than that of Haish. Appellee, by its license and a subsequent agreement, was authorized to manufacture 1200 tons. The license to Haish authorized him to manufacture 10,000 tons. Appellee was to pay a royalty of seventy-five cents per one hundred pounds on the whole of its 1200 tons. Haish, on the other hand, according to the finding of the decree, was to pay no royalty at all on 4000 tons, a royalty of fifty cents on 4000 tons, and a royalty of seventy-five cents per hundred pounds on the last 2000 tons of his tonnage,—that is, taking all his tonnage together, he was authorized to manufacture, free of royalty, two-fifths of his gross tonnage, but was to pay a royalty of fifty cents per hundred pounds on the next two-fifths, and a royalty of seventy-five cents per hundred pounds on the remaining one-fifth ; hence it is said, that on the theory of the court below, and upon the principle of equality of royalties, appellee should be exempt from royalty as to two-fifths of its tonnage, and subject to a payment of fifty cents on the hundred pounds royalty on the second two-fifths of its tonnage, and a royalty of seventy-five cents per hundred pounds on the last one-fifth, but that instead of doing so the decree gives to appellee the whole amount of its tonnage free from any royalty. There is force in this view, and we think that if Haish manufactured up to the full limit of his tonnage, it would have to be acceded to. He certainly, then, would have some royalty to pay, and the reduction of appellee’s royalty to an equality with that of Haish would not exempt appellee from payment of any royalty at all. There can not be the claim that each licensee was entitled to an equal amount of tonnage. There was. to be a limitation as to tonnage, and the several amounts to be allowed to each licensee were to be determined by the licenser; but Haish was not bound to manufacture more than 4000 tons yearly, and to the extent of 4000 tons yearly he had a free license,—whether he would manufacture in excess of that was optional with him. The proof shows that up to the time of the hearing in the Superior Court, his yearly manufacture did not exceed 4000 tons, so that upon what he manufactured he paid no royalty, upon the theory of the decree, and so far the decree was right in exempting appellee from the payment of royalty; but if in the future, subsequent to the hearing, Haish should manufacture in excess of 4000 tons yearly, he would have to pay royalty, under the provisions of his license, which, if he manufactured to the limit of his license, would be fifty cents per hundred pounds on the second two-fifths of his manufacture, and seventy-five cents per hundred pounds on the last one-fifth. As respects, then, any future manufacture by Haish which might be in excess of 4000 tons yearly, we are inclined to think appellee should be required to- pay the same proportionate royalty as Haish would have to pay, so that there should be the same ratio of royalty to tonnage manufactured in the case of appellee as in that of Haish, and that in the respect of any such future manufacture the decree should be modified accordingly.

It is objected further, that Ellwood was an indispensable party, and no decree could be rendered in his absence. The license in this case is a license by the appellant, as the sole licenser, to the Chicago Galvanized Wire Fence Company, as the licensee, and the bill is filed against appellant to secure the specific enforcement of a covenant In the license, made by appellant with appellee, that appellee should have the benefit of any better terms as to royalty given by appellant to any other licensee after the 1st of January, 1881. Ellwood appends to the license his consent to and approval of the same, but this does not make him a party to the license, nor a necessary party to the bill. The proof shows that Ellwood was a joint owner with appellant of the (Hidden patent,— one of the most important of the series of patents under which the license was granted,—and that he was interested, to some extent, in the other patents, or part of them. This might be, and yet Ellwood have no interest in the royalty payable under this license. It neither appears upon the face of the bill, nor by averment in any pleading, or by any showing of proof, as we read it, that Ellwood had any interest in this royalty, and it is this royalty only,—the amount of it,— which is the subject matter of this suit. The right in or validity of the patents is in no way involved. The objection of the non-joinder of Ellwood as a party was not taken by demurrer, or by plea or answer, and was first made at the final hearing. When thus delayed such an objection receives less favor from the court, and in such cases, to be of avail it must appear that the decree will have the effect of depriving the party omitted, of his legal rights. (Schwoerer v. Boylston Market Association, 99 Mass. 285.) It does not so appear in the present case.

• The general doctrine referred to by appellant’s counsel in support of the objection that all persons having an interest in the subject matter of the litigation must be made parties, has not full application to eases, like the present, for the specific performance of contracts. The general rule is, that to a bill for the specific performance of a contract no persons are necessary parties except the parties to the contract itself. (Fry on Specific Per. sec. 79; Pomeroy on Contracts, see. 483, and eases cited; Willard v. Taylor, 8 Wall. 557.) Mr. Pomeroy says this is the well settled general doctrine in England, and has been followed by some of the American decisions, though the tendency of the latter decisions is towards the adoption of a more comprehensive rule. In section 492 he lays it down that in general, when the vendor is a trustee, his cestuis que trust need not be joined as co-defendants. Gibbs v. Blackwell, 37 Ill. 191, was a bill filed for the specific performance of a contract for the conveyance of real estate by the heirs of the vendee. The vendor interposed, by way of defence, that he held the property in trust for John Gibbs, an idiot, and that the land was paid for by said idiot’s funds, and insisted the bill ought to have been dismissed for want of proper parties. This court held that John Gibbs was not a necessary party. Furthermore, if Ellwood were interested in the royalty, his written consent to and approval of the contract as made, in the name of the Washburn & Moen Manufacturing Company, was virtually a consent that that company should stand and be taken as the representative party in the agreement, and amounted to a waiver of any claim of right of himself to be made a party in any litigation in respect of the contract. We find no error in not making Ellwood a party.

For the purpose of a modification of the decree in the manner above indicated, the decree will be reversed, and the cause remanded for further proceedings in accordance with this opinion. Each party will pay its own costs in this court.

Decree modified.

Mr. Justice Walkeb : I am unable to concur in the opinion in this case.

Mr. Justice Dickey also dissents. See his opinion at the close of this volume, page 673.


author: Mr. Justice Scott Mr. Justice Mulkey,

text:
    Mary J. Eads v. Calvin R. Thompson et al.

      Filed at Ottawa January 23, 1884.

    1. Fraudulent conveyance—the particular case. In this case it was sought, upon creditor’s bill, to set aside a conveyance of land, made by the debtor, on the alleged ground it was intended to hinder and delay the complainant in the collection of his debt. On a consideration of the evidence it was not regarded as sufficient to authorize the relief prayed.
    2. Witness—credibility—husband testifying for his wife. The testimony of a husband in favor of his wife, on a bill to subject land in her name to the payment of his debts, when not impeached must be regarded the same as that of any other witness having a personal interest or feeling as to the matters about which he testifies.
    Writ of Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Henderson county; the Hon. John J. Glenn, Judge, presiding.
    The bill in this case is the ordinary creditor’s bill, and was brought by Mary J. Eads, against Harvey Garrett, Eleanor Garrett, Thomas Garrett, William P. Thompson, Robert M. Thompson, and Calvin R. Thompson. The object of the bill seems to be two-fold,—first, to subject certain real property to the payment of a judgment recovered by complainant against Harvey Garrett, in the circuit court of Henderson county; and second, to discover assets in the hands of defendants, or some of them, that might be decreed to be paid on such judgment. On the hearing in the circuit court the bill was dismissed as to all the defendants except Harvey Garrett, Eleanor Garrett and Calvin R. Thompson, and the court rendered a decree providing that in case the judgment in favor of complainant was not paid within a certain time fixed, Eleanor Garrett and Calvin R. Thompson should convey to the master in chancery certain real property, the title to which was in them, but which the court found equitably belonged to the judgment debtor, that it might be sold by such master, and out of the proceeds of such sale the judgment might be satisfied. On the appeal of Calvin E.Thompson and Eleanor Garrett the Appellate Court reversed the decree of the circuit court and remanded the cause, with directions to that court to dismiss as to the defendants appealing. Thereupon complainant brings the case to this court on error, as authorized to be done under the statute.
    Mr. J. W. Davidson, Mr. J. Simpson, and Mr. W. C. Norcross, for the plaintiff in error:
    Any transfer of real or personal property with intent to disturb, delay, hinder or defraud creditors, etc., is void. Rev. Stat. 1874, p. 540, sec. 4; Annis v. Bower, 86 Ill. 128; Tunison v. Chamblin, 88 id. 878; Johnson et al. v. Johnson et al. 98 id. 564; Mann v. Ruby, 102 id. 348; Moore v. Wood, 100 id. 457; Bennett et al. v. Stout et al. 98 id. 47; Kerr on Frauds, 196; 1 Story’s Eq. Jur. secs. 337, 340, 342, 344.
    Direct evidence of witnesses, speaking of their own knowledge of the fraudulent intent, is not required. It is sufficient to prove facts and circumstances strong enough to justify a jury in finding such an intent; nor is clear and indisputable evidence required to establish fraud. Gill v. Crosby, 63 Ill. 190; Bowden v. Bowden, 75 id. 143; Emerson v. Bemis, 69 id. 537; Reed v. Nixon, 48 id. 343; Murry v. Bostwick, 13 id. 398; Carter v. Gunnels, 67 id. 271.
    Deeds made to defraud creditors are absolutely void. Gould v. Steinburg, 84 Ill. 170.
    Indebtedness at the time of the transaction is evidence of fraud. Phelps v. Curts, 80 Ill. 109; Kerr on Frauds, 205, 206.
    A voluntary conveyance to a wife or child, if the grantor is largely indebted, is presumptive evidence of fraud, and a fraudulent intent will be presumed from the fact of indebtedness at the time. Moritz v. Hoffman, 35 Ill. 533.
    We grant that a party, even though indebted, may convey property to his wife, child or other person, and such conveyance will be upheld, provided an abundance be left to pay the debts of the grantor. (Giddings v. Watson, 53 Ill. 186; Pratt v. Myers, 56 id. 587; Bridgeford v. Riddle, 55 id. 261.) But if a husband is insolvent, as is shown in this case by his own evidence, or if the conveyance is made with a view to indebtedness to be contracted, and with the intent to defraud, it will be fraudulent and void, and any creditor can attack it. Bridgeford v. Riddle, supra; Crawford et al. v. Logan, 97 Ill. 396; Lunaway v. Robinson, 95 id. 419.
    • Messrs. Stewart & Stewart, and Mr. B. J. Grier, for the defendants in error:
    It is true fraud may be proved by circumstances, but they must be such as will justify the inference. (Reed v. Nixon, 48 Ill. 323.) And if the facts and circumstances proven, or the motive and design of an act, can be attributed to an honest motive as well as to a corrupt one, the court should attribute it to the honest motive. Bowden v. Bowden, 75 Ill. 143; McConnell v. Wilcox, 1 Scam. 344.
    Fraud must be proved, as it will not be presumed. Wright v. Grover, 27 Ill. 426; Blow v. Gage, 44 id. 208; Bump on Fraudulent Conveyances, 192.
    Both parties must participate in the fraud and the fraudulent intent. Ewing v. Runkle, 20 Ill. 449; Meyers v. Kinzie, 26 id. 36; Gridley v. Bingham, 51 id. 153; Hatch et al. v. Jordan, 74 id. 414.
    The fact that the parties are related is not alone sufficient to prove fraud. Nelson v. Smith et al. 28 Ill. 495; Wightman et al. v. Hart, 37 id. 123.
    An insolvent debtor may dispose of his property, and the purchaser will be protected, unless the evidence shows satisfactorily that he was actuated mala fides. Ill. Statute of Frauds, sec. 5; Wadhams v. Humphrey, 22 Ill. 661; Nelson v. Smith et al. 28 id. 495; Wood et al. v. Shaw et al. 29 id. 444; Hesing v. McCloskey, 37 id. 341; Miller et al. v. Kirby, 74 id. 242.
    The motive with which an act is done makes no difference, if the act is legal. Funk et al. v. Staats, 24 Ill. 633; Gray v. St.John, 35 id. 222; Hesing v. McCloskey, 37 id. 341; Francis v. Rankin et al. 84 id. 169; Kyger v. F. Hull Shirt Co. 34 Ind. 249; Bump on Fraudulent Conveyances, chap. 7.
    Purchasing with notice of the insolvency of the vendor, does hot make the transaction fraudulent. Beals v. Guernsey, 8 Johns. 446; Bliss v. Ball, 9 id. 131; Sisson v. Routh et al. 30 Conn. 15; Loeschigh et al. v. Bridge et al. 42 N. Y. 421.
   Mr. Justice Scott

delivered the opinion of the Court:

The case in this court is confined within much narrower limits than it was when heard in the circuit court. That court dismissed the bill as to all the defendants except the judgment debtor and Eleanor Garrett and Calvin B. Thompson. Complainant neither appealed from that decree nor assigned cross-errors. It must therefore be understood she acquiesced in that decision. In so far as the bill contained allegations against parties as to whom it was dismissed, it will' not now be considered.

Narrowing the inquiry, then, as must be done, to the lands it is charged that equitably belong to the judgment debtor, but the title to which is in defendants Eleanor Garrett and Calvin B. Thompson, the discussion need not be elaborated to any great length. The transaction, so far as Thompson is concerned, will be first considered.. It appears that Coleman Garrett died July 6, 1878, leaving quite an estate, consisting of real and personal property. Harvey Garrett, the judgment debtor, was a son of the intestate, and one of nine heirs to his estate. On the 1st day of March, 1879, Harvey Garrett entered into a contract with Calvin B. Thompson, by which he sold to Thompson his interest in his father’s estate. The consideration to be paid was $800, of which sum $200 was paid in cash, and Thompson gave his notes for the balance, which he afterwards paid. It is that sale of the property complainant seeks to impeach as fraudulent as to her, and have the land subjected to the payment of her judgment. That, it is thought, can not be done. At the time Harvey Garrett contracted to sell his interest in his father’s estate, complainant had then recovered no judgment against him. Her judgment was not recovered until the 26th of March, 1879, and no execution was issued on the judgment until the 10th of March, 1880. Prior to making the sale of his interest, it seems a division of the lands belonging to the estate of Coleman Garrett had been agreed upon among the heirs, and by that arrangement Harvey Garrett would get twenty acres lying next to Calvin B. Thompson, off an eighty acres situated in Warren county. On making the contract Thompson took possession of this land, and leased it to Harvey Garrett, at and for a sum agreed upon. The next year he leased the same to Eleanor Garrett. Afterwards Thompson received a deed for this land, and since the making of the contract he has been, and now is, in possession of it, either by himself or his tenants, and claims to be the absolute owner. There is but little in the record that tends to impeach the fairness of this sale. It is fully proven that Thompson bought the interest of Harvey Garrett in his father’s estate, and paid him the price agreed upon in actual money. The contract was made at a time when there was no judgment against Harvey Garrett, and if done in good faith there can be no reason why it may not stand. That which is most confidently relied on as indicating fraud, is, first, the relationship of the parties; second, the pendency of complainant’s suit against the vendor; and third, inadequacy of price. The relationship of the parties, if the sale was otherwise fair, would not, of course, render it fraudulent. It is not certainly proven that Thompson knew of the pendency of complainant’s suit when he purchased Harvey’s interest in his father’s estate; hut if he did, that would not render it unlawful for him to buy the land, if done in good faith. It may be the price agreed to be paid was less than the real value of the property, but the inadequacy of price is not so great as to raise any presumption of fraud that would prevail over the positive testimony of the parties as to the good faith of the sale. On the whole evidence, fully considered, no sufficient reason appears for declaring the sale to Thompson fraudulent, and it must therefore be permitted to stand.

Coming now to consider the ease against Eleanor Garrett, it is seen she claims to have bought of James, William and Isaac Garrett the sixty that remained of the eighty acres in Warren county after the sale of the twenty acres to Thompson, and also to have bought a tract of land, consisting of sixty-four acres, of David S. Steers, and to have paid for the same with her own money. On the other hand, it is claimed these lands were bought with funds belonging to Harvey Garrett, and therefore equitably belong to him, and that the deeds were taken in the name of Eleanor, his wife, to hinder and delay complainant in the collection of her judgment against Harvey Garrett. On this branch of the case the evidence contained in the record is very voluminous, and covers the transactions of the parties for quite a number of years. It would answer no good purpose to enter upon any particular analysis of the testimony. It would extend this opinion to an unreasonable length. It has been considered with that care the importance of the case demands, and it is. sufficient to state the impressions it makes on the mind. There is positive testimony the money that paid for these lands was in fact the money of Eleanor Garrett, derived from sources other than her husband, the judgment debtor. That she obtained some money from her father’s estate is conceded. Documentary evidence introduced tends to show she did not receive the amount necessary to buy these lands, from her father’s estate. That may be so, but this evidence is not of itself of a character sufficient to overcome the positive testimony only her money was used in buying these lands. There is some evidence she had money from other sources. It is true the testimony as to the money used in buying these lands comes mostly from the husband of defendant claiming the lands as her own. He is not impeached, and his testimony is to be regarded as the testimony of any other witness having a personal interest or feeling in the matters about which he testifies. Many of the transactions between the judgment debtor and his wife are by no means free from suspicion as to their fairness. But much as the good faith of some of their transactions in regard to personal property may be distrusted, still there is positive testimony defendant bought these lands with her own money, as any one else would do. That she had some money of her own to use for that purpose, admits of no doubt, but whether she had enough with which to buy and pay for all these lands, is purely a question of fact, depending for its solution on conflicting evidence. It has been seen there is evidence tending to show she had sufficient money of her own to pay for all the lands conveyed to her, and that principal fact is not disproved by the circumstances proven. The whole record considered, it is thought the judgment of the Appellate Court directing the bill to be dismissed as to the remaining defendants, is ■warranted by the law and the evidence, and must be affirmed.

Judgment affirmed.

Mr. Justice Mulkey,

I do not think all the facts affecting the merits of this case are fully presented by the opinion of the majority of the court, or by the statement which precedes it, and I am clearly of opinion, when all the facts are carefully considered, the decree of the circuit court, in so far as it affects the parties before this court, was fully warranted, and that it should therefore have been approved by the Appellate Court, and that the Appellate Court erred in not doing so.

Walker and Scholfield, JJ., also dissent.