author: Mr. Justice Craig

text:
    Mary P. Lunt et al. v. Orrington Lunt.

      Filed at Springfield June 15, 1883

      Rehearing denied January Term, 1881.

    1. Wii/d—what is a perpetuity. A perpetuity is a limitation taking the subject thereof out of commerce for a longer time than a life or lives in being and twenty-one years beyond. In case of a posthumous child a few more months may be allowed.
    2. If the title to an estate devised vests in the devisees upon the death of the testator, although the full enjoyment thereof is postponed to a future day, the devise will not be obnoxious to the rule of law against the creation of peipetuities.
    3. Same—devise—whether contingent or vested. A devise to A if or when he shall attain the age of twenty-one years, standing alone, will confer a contingent interest only; but a devise to trustees until A shall attain the age of twenty-one years, and if or when he shall attain that age then to him in fee, is construed as conferring on A a vested estate in fee simple, subject to the prior chattel interest given to the trustees, and upon A’s death under the prescribed age the property will descend to his heir at law. So a devise over, in case he dies before reaching such age, supplies an argument in favor of the prior devisee taking a vested interest.

      i. Same—construed, by talcing all its clauses together. In construing a provision of a will the court should consider each clause thereof, not alone, but in connection with each other, to ascertain the real intention of the testator, which must govern, unless it conflicts with some known rule of law.
    5. A testator made a residuary devise to his executors as trustees, and to the survivor, upon the following trust: That the rents, income, etc., or as much as necessary, be paid out for the support of the testator’s wife, and the support and education of his children, until they should arrive at the age of twenty-one years, when one-third of two-thirds of the property devised should vest absolutely in each of his children, or the survivor of them; and in case the wife should marry, one-third only of the income and rents of the real estate should be paid to her during her life. It was also provided further, as follows: “When my said children, or the survivor, shall arrive at the age of thirty years, if my wife still survive, the remainder of said two-thirds of my property shall go to and vest in each of my said children equally, or in the survivor, and the issue of the deceased, if any exist, equallj', or if both die leaving issue, then at such period as the youngest of my said children would have been thirty years of age the-same shall vest in the issue of each of my children equally, the children taking a parent’s share, and if both die without issue, then to my heirs at law; and in case my wife shall die within thirty years from the birth of my youngest child, then at the expiration of said thirty j'ears my whole property shall go to my heirs at law,” and in ease of her death aftér the children become thirty years old, the remaining third should go and vest the same as the two-thirds: Held, that the death of the wife leaving both children living did not accelerate the possession of the property or terminate the trust, but that all the property, except one-third of two-thirds, which passed to the children when the youngest arrived at the age of twenty-one, remained in the surviving trustee until the youngest child was thirty years of age, when a division was to be made of the remaining property.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon.' Thomas A. Moran, Judge, presiding.
    Messrs. Collins & Adair, for the appellants;
    - Estates can not be limited in any mode, so as to be not subject to alienation, beyond the period of a life or lives in being and twenty-one years thereafter, allowing the period of gestation in addition of a child en ventre mere. 2 Green-leaf’s Cruise, 716, 717; Lewis on Perpetuities, 164, 172; 1 Smith’s Leading Cases, part 2, 722, 723; 1 Washburn on Real Prop. 82; 1 Jarman on Wills, 222; 2 Redfield on Wills, 568, sec. 4; Waldo v. Cummings, 45 Ill. 421.
    ■If, by any possibility, the vesting may be postponed beyond this period, the limitation will be void. 2 Washburn on Real Prop. 359 ; 1 Jarman on Wills, 231-233; 2 Redfiéld on Wills, 571; Joel v. Audley, 1 Cox, 324.
    If the limitation is void as being too remote, the will will be construed as if no such clause were in it, and the first taker holds his estate discharged of the limitation over. Brattle St. Ch. v. Grant, 3 Gray,.142; Wood v. Griffin, 46 N. H. 234; Lewis on Perpetuities, 657; 2 Washburn on Real Prop. 360; 18 Ad. & Ellis, (N. S.) 224; Anderson v. Grable, 1 Ark. 136; Joslin v. Hammond, 3 M. & K. 110; Seward v. Wilcox, 5 East, 198.

      The rule against perpetuities, and the effect of the executory devise being void for remoteness, are applicable to personal as well as to real property. 1 Jarman on Wills, 223, 231-233, 255; Lewis on Perpetuities, 164; 2 Redfield on Wills, 278.
    A limitation over by way of executory devise, based on “an indefinite failure of issue, ” as in the seventh clause of item 4, is void as too remote. 2 Washburn on Real Prop. 360, 361; 4 Kent’s Com. 276; 1 Jarman on Wills, 223; 2 id. 418; 2 Redfield on Wills, 275, 276, 569; Anderson v. Jackson, 16 Johns. 382.
    Trusts for accumulation, which are not necessarily limited to the term of a life or lives in being and twenty-one years after, are absolutely void. Lewis on Perpetuities, 592, 172; Curtis v. Lukin, 5 Beav. 147; Lord Southampton v. Hertford, 2 V. & B. 61; Thellusen v. Woodford, 4 Ves. 227; 2 Swanst. 432; 14 Sim. 369; 17 id. 187; 1 H. L. Cases, 406.
    Where property is directed to accumulate for a certain period, or where the payment is postponed, the legatee oxdevisee, if he has% an absolute, indefeasible interest in the legacy or devise, is not bound to wait until the expiration of that period, but may require payment the moment he is competent to give a valid discharge. Saunders v. Vautier, 4 Beav. 115; Josselyn v. Josselyn, 9 Sim. 64; Rhoads v. Rhoads, 43 Ill. 252.
    A devise ox- bequest of property to the testator’s heirs at law, means those who are such at the time of his decease, unless a contrary ixxtexxt is very obvious. 1 Redfield on Wills, 392; Doe v. Lawson, 3 East, 278; Bird v. Luckie, 8 Hare’s Ch. 301; Phillips v. Evans, 4 DeG. & Sm. 188; 2 Jarman on Wills, 52; Abbott v. Bradstreet, 3 Allen, 587; Smith v. Harrington, 4 id. 566; Knight v. Knight, 3 Jones’ Eq. 167.
    A will is to be construed from all its parts, so as to give effect to every clause. Bland v. Bland, 103 Ill. 12.

      Mr. Theodore Sheldon, for the appellee:
    The words, “heirs at law, ” in the will, mean heirs at the time of the testator’s death. 2 Jarman on Wills, 87; IIolloivay v. Holloway, 5 Yes. 399; Abbott v. Braclstreet, 3 Allen, 587; Doe v. Lawson, 3'East, 278 ; Phillips v. Evans, 4 DeG-. & Sm. 188; Williman v. Holmes, 4 Bich. Eq. (S. G.) 475; Nicoll v. Scott, 99 111. 529.
    Clause 8 should be construed with clause 7, and as based on the contingency of the death of both children without issue before the younger child reaches her thirtieth year, and operative only upon that contingency. Under this construction the daughters took, at the testator’s death, a vested estate in fee, determinable only upon their dying under the age specified. * 2 Bedfield on Wills, *225, sec. 18; Nicoll v. Scott, 99 111. 529; Illinois Land and Loan Co. v. Bonner, 75 id. 315.
    This same rule of construction applies whether the conveyance is direct or through trustees. 2 Bedfield on Wills, *225, see. 19; Phipps v. Ackers, 9 Cl. & Eiu. 583; Bland v. Williams, 3 M. & K. 411.
    The following are eases where immediate vesting has been allowed with postponed possession, even though the time limited for possession is beyond the boundary of perpetuity: Dodson v. Hay, 3 Bro. Ch. 405; Montgomery v. Woodley, 5 Ves. 522; Bingley v. Brodhead, 8 id. 416; Kevern v. Williams, 5 Sim. 171; Blease v. Burgh, 2 Beav. 221; Doe dem. Cadogen v. Ewart, 7 Ad. & Ell. 636; Doe dem. Dolley v. Ward, 9 id. 582; Kirkland v. Cox, 94 Ill. 400.
    The cases in this State relating to perpetuities are Rhoads v. Rhoads, 43 Ill. 239, and Waldo v. Cummings et al. 45 id. 421.
    An estate is held to vest at the earliest period possible, unless a contrary intent is clearly apparent. Doe v. Considine, 6 Wall. 475.
    It appears from the entire instrument that the word “vest, ” used in item 4, is to be taken in its popular and not its legal sense. Chief among such indications is the devise of the income secured to the donees in the meantime. Watson v. Hayes, 5 M. & K. 125; Belle v. Cade, 31 L. J. 3S3; Manice v. Manice, 43 N. Y. 303. Reference to the fund as “her i share,” so indicates. Berkeley v. Swinburne, 16 Sim. 275; Poole v. Bott, 11 Hare, 33; Walker v. Simpson, 1 K. & J. 713; Corneck v. Wadman, L. R. 7 Eq. 80. The devise over without issue of the daughters also so indicates. Taylor v. Frobisher, 5 DeG. & Sm. 191.
   Mr. Justice Craig

delivered the opinion of the Court:

On the 16th day of December, 1856, George A. Bobb, of Cook county, died testate, leaving a widow, Martha Bobb, and two daughters, Mary P. and Nellie B. Bobb, who were both, at the time, minors. The will of the testator was admitted to probate in January after his death. In the first clause of the will he directs the payment of his debts and funeral expenses. In the second clause he gives to his wife his household' furniture. The third clause is as follows: “All the rest and residue of my property, real and personal, oftwhich I may die seized and possessed, I hereby devise and bequeath to my beloved wife, Martha, and my respected friend, Gilbert Hubbard, jointly, and the survivor of them, in trust for the use and trusts hereinafter specified. And I hereby constitute them, and the survivor of them, executors of this my last will and testament, and guardian of my infant children, Mary P. and Nellie.” The fourth clause was in the following words: “The income, rents and proceeds of my said real and personal property, or so much thereof as may be necessary, my said executors and trustees, or the survivor, shall pay out and expend for the support of my said wife, and the support and education of my said children, until they or the survivor shall arrive at the age of twenty-one years, when one-third of two-thirds of my said projjerty shall go to and vest absolutely in each of my said children, or the survivor of them; but if at any time my said wife should marry, one-third only of the income and rents of my real estate shall be paid over to her during her life. When my said children, or the survivor, shall arrive, at the age of thirty years, if my wife still survive, the remainder of said - two-thirds of my property shall go to and vest in my said children equally, or in the survivor, and the issue of the deceased, if any exist; equally, or if both die leaving issue, 'then at such period as the youngest of my said children would have been thirty years of 'age the same shall vest in the issue of each of- my children equally, the children taking a parent’s share, and if both die without issue, then to my heirs at law; and in case my said wife shall die within thirty years from the birth of my youngest child, then at the expiration'of said thirty'years my whole property shall go to my heirs at law, and in case my wife die after my said children shall arrive at the age of thirty years, then said remaining third of my said property shall go and vest in the same manner as said two-thirds,—' as said two:thirds are above devised and disposed of. ”

On the 10th day of February, 1876, the youngest of the children, Nellie Eobb, (now Nellie Collins.) attained the age of twenty-one years. On the 5th day of June, 1876, Martha Eobb, the widow, died, and appellants, Mary E. Lunt and Nellie E. Collins, daughters of deceased, claim that upon the death of the widow all the real and personal estate in the hands of Hubbard, sole acting trustee, under the will descended to and vested in them, and they became entitled to receive from Hubbard all of the real and personal estate.of the deceased, although Nellie E. Collins, the youngest of the daughters, will not arrive at the age of thirty until February 10,1885. This position is predicated upon the'theory that the following clause of the will, “and in case my said wife shall die within thirty years from the birth of my youngest child, then at the expiration of said thirty years my whole property shall go to my heirs at law, ” is void for remoteness, being in conflict with the rule of law for the prevention of perpetuities. If the provision of the will is obnoxious to the long settled and well established rules of law forbidding perpetuities, of course it can not be sustained. But is the will liable to the objection urged against it?

In Bouvier’s Law Dictionary, a perpetuity is defined to be a limitation taking the subject thereof out of commerce for a longer period of time than a life or lives in being, and twenty-one years beyond, and in case of a posthumous child a few months more, allowing for the time of gestation. This mle was approved by this court in Waldo v. Cummings, 45 Ill. 421. In 2 Washburn on Beal Prop., page 652, the author defines a perpetuity in the following language: “Grants of property wherein the vesting of an estate or interest is unlawfully postponed.” Was the vesting of this estate unlawfully postponed, as declared by Washburn, or was this property taken out of commerce by the provisions of the will for a longer-period than a life or lives in being, and twenty-one years longer, so as to bring the will within the rule given by Bouvier? This will depend upon whether the estate vested in the daughters. If the title to the property became vested in .the two daughters upon the death of the testator, with the full enjoyment thereof postponed to a future day, the will would not be regarded obnoxious to the rule of law for the prevention of perpetuities. The important inquiry then is, whether the title to the property, under a proper construction of . the will, became vested in the two daughters upon the death of the testator.

In 1 Jarman on Wills, page 734, it is said: “Where a testator devises lands to trustees until A shall attain the age of twenty-one years, and if or when he shall attain that age then to him in fee, this is construed as conferring on A a vested estate in fee simple, subject to the prior chattel interest given to the trustees, and, consequently, on A’s death under the prescribed age, the property descends to his heir at law, though it is quite clear that a devise to A if or when he shall attain the age of twenty-one years, standing isolated and detached from the context, would confer a contingent interest only. ”

In 2 Redfield on Wills, p. 225, sec. 18, it is said: “Where, therefore, the devise is to a person when or if he shall attain a certain age, or at a certain age, this, standing alone, would be contingent; yet if followed by a limitation over if he shall die before a certain age, this is regarded as explanatory of the nature of the estate which it was^ intended the devisee should take upon arriving at the age named,—i. e., that it should then become absolute and indefeasible. The interest, therefore, in such cases is held to vest upon the decease of the testator, and the devise over always supplies an argument in favor of the prior devisee taking a vested interest. Where the devise over is made dependent upon the first devisee dying before he became of age, or without issue, or any similar event, it is considered that the devise is equivalent to a provision that the first donee shall take an immediate vested interest, liable to be defeated by the happening of the contingency named, or if it does not happen, the estate then to become absolute and indefeasible.”

The doctrine announced in Jarman and Redfield was approved by this court in Illinois Land and Loan Co. v. Bonner, 75 Ill. 315. Bland v. Williams, 3 M. & K. 411, is also an authority in point. In the .case as reported there was a bequest to the trustees to apply so much of the income as may be necessary for the support and education of the children of the testator’s daughter until they should respectively attain the age of twenty-four, and then to divide the principal equally between them, with a gift over in case any of them should die under twenty-four without issue. It was held that the provision was not void as being too remote, but gave a present vested interest with an existing bequest over in case of death under twenty-four without issue. The same rule is announced in Smither v. Wallack, 9 Ves. 233, Peyton v. Berry, 2 P. Wms. 626, and Mankin v. Phillipson, 3 M. & K. 257. Gilman v. Reddington, 24 N. Y. 1, although predicated somewhat upon the statute of New York, may be regarded as a case in point. In that case the trustees were required by the will to pay, convey or make over the real and personal estate, upon the death of the two younger children or the expiration of thirty years, to the survivors of such children, or the issue then living of such as might be dead, in equal proportions, the issue to take the share of the parent, with a substitutional limitation in favor of other persons. The court held that the children took a vested fee determinable as to each upon his dying without issue within the prescribed period.

But to return to the fourth provision of the will. Upon a close and careful examination of each of the various clauses, and a consideration of the one clause in connection with the others, which is the correct mode to arrive at the true intent of the testator, we think it apparent there was a limitation over, as declared by Bedfield, and the estate became vested at the death of the testator, with the enjoyment deferred until such time as the youngest daughter would attain the age of thirty. The great object in the construction of wills is to arrive at the intention of the testator, and when that can be ascertained from the terms of the instrument, such a construction should be placed upon it as will carry out that intention, unless in so doing some well known rule of law will have to be disregarded. It will not do to single out one clause of a will, as has been done here in regard to clause 8, and say that such a clause, when standing alone, is void. Clause 8 must be construed in connection with clause 7. Clauses 4, 5, 6, 7 and S read as follows: (4) “When my said children, or the survivor, shall arrive at the age of thirty years, if my wife still survive, the remainder of said two-thirds of my property shall go to and vest in my said children equally, (5) or in the survivor, and the issue of the deceased, if any exist, equally, (6) or if both die leaving issue, then at such period as the youngest of my said children would have been thirty years of age the same shall vest in the issue of each of my children equally, the children taking a parent’s share, (7) and if both die without issue, then to my heirs at law, (8) and in case my said wife shall die -within thirty years from the birth of my youngest child, then at the expiration of said thirty years my-whole property shall go to my heirs-at law. ”

It will thus be seen that clauses 7 and S are separated merely by a comma, and it is claimed by appellee that- the word “and,” in the connection in which it is used, should be understood as meaning, “and in addition to the foregoing.” The construction contended for we believe to be correct. Under this construction the death of the wife while both children were living did not accelerate the possession of the property, nor did it terminate the trust which had devolved upon the trustees, but by the plain terms of the will the property, except two-ninths, which passed to each of the daughters when the younger one arrived at the age of twenty-one years, would remain in the hands of the trustees until the youngest daughter arrived at the age of thirty, when the two daughters would be entitled to a division. This construction also carries out the obvious intention of the testator, and leaves every provision of the will in full force and effect. Upon a careful inspection of the terms of the will the intention of the testator seems to have been, first, to provide for the support of the wife and the two daughters until the younger daughter should arrive at the age of twenty-one years, when one-third of two-tliirds of the property should vest absolutely in each of the daughters; second, to confer a life estate in one-third of the real property in the wife during life, for her support; and third, to defer a final division of the estate until the youngest daughter should be thirty years of age, when, if the wife should still he living, the remainder of the two-thirds should go to the daughters equally, or the survivor and issue of the deceased, if one should he dead, and in case the wife should die before the youngest daughter attained the age of thirty, as she did, then the whole estate should be divided in like manner as the remaining two-thirds.

The judgment .of the Appellate Court will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Chief Justice Sheldon

license: Public Domain

text:
    The Chicago, Milwaukee and St. Paul Railway Company v. The Keokuk Northern Line Packet Company, In re Samuel C. Clubb, interpleader.

      Filed at Springfield Oct. 1, 1883

      Rehearing denied January Term, 1884.

    1. Receiver—extent of his authority—right of foreign receiver to remove property out of this State. The powers of a receiver are cogxtensive only with the jurisdiction of the court appointing him, and a foreign receiver will not he permitted, as against the claims of creditors resident in this State, to remove from this State the assets of the debtor, it being the policy of every government to retain in its own hands the property of the debtor until all domestic claims against it have been satisfied.
    2. But where a receiver has once obtained rightful possession of personal property situate within the jurisdiction of his appointment, which he was appointed to take charge of, he will not be deprived of its possession though he takes it, in the performance of his duty, into a foreign jurisdiction. While there it can not be taken from his possession by creditors of the insolvent debtor who reside within such jurisdiction.
    3. - Same—when he has a special property in the goods of the debtor, which he may protect. Where a receiver takes possession of a barge within the jurisdiction of the court appointing him, as the property of the insolvent debtor, he becomes invested with a special property in it, like that of a sheriff On a valid levy, and he may protect this special property while it continues, by action, in like manner as if he were the absolute owner.

      é. Same—property in the thing not lost or abandoned by suffering it to be taken out of the State. Where a packet company, whose business it was to run boats on the Mississippi river, was adjudged insolvent by the proper court, in St. Louis, in the State of Missouri, and a receiver appointed to manage the affairs of the corporation, and he took po'ssession of a barge ■ of the corporation in St. Louis, and chartered the same to a steamboat, tinder which it was taken up the rivér to Quincy, in this State, where it was detained by ice, and the captain in charge of the same gave it up to the receiver, who took possession and placed a guard over the same, and it was there attached by a creditor of the insolvent company, it was held, that there was no abandonment of the barge by the receiver, and that he had a right to interplead under the statute, and insist upon his right to the same.
    Appeal from the Appellate Court for the Third District; —heard in that court on appeal from the Circuit Court of Adams county; the Hon. John H. Williams, Judge, presiding.
    This was an attachment suit, brought by the Chicago, Milwaukee and St. Paul Railway Company, against the Keokuk Northern Line Packet Company, in the circuit court of Adams county, in this State. The writ of attachment was, on the 21st day of April, 1881, levied npon the barge “G-. W. Duncan, ” lying at Quincy, in said county, as the property of the defendant. Samuel C. Clubb, under the provision of section 29 of our Attachment act, “that any person other than the defendant claiming the property attached may interplead, ” etc., interpleaded in the case, claiming the property so attached, under an appointment as receiver of the property and effects of said packet company, by the circuit court of St. Louis, in the State of Missouri, in a certain cause in said court wherein said packet company was defendant. There was judgment in favor of the interpleader, Clubb, which, on appeal, was affirmed by the Appellate Court for the Third District, and the railway company appealed to this court.
    The plaintiff in .the attachment suit had first filed a replication to the pleas of the interpleader, traversing the same, but afterward, on its motion granted by the court, it withdrew the replication, as having been filed by mistake, and then moved the court to file its plea in abatement, which had been intended to be filed instead of the replication, denying the right to interplead as receiver under the appointment of a foreign court, which motion the court overruled, whereupon said plaintiff company filed the plea in abatement, which plea the court, on motion of said Clubb, ordered to be stricken from the files. The plaintiff company then refiled its said replication, upon which issue was joined and the trial had. The interpleader’s first plea alleges the barge was his own property at the time of the attachment of it; the second, that it was his property as receiver; the third, that at such time it was in his possession as receiver.
    The facts of the case shown by the evidence are, that at the October term, 1880, of the circuit court of the city of St. Louis, in the State of Missouri, Samuql C. Clubb was duly appointed receiver of the Keokuk Northern Line Packet Company, an insolvent corporation of that State, with power and authority to take possession of all the business and property of the corporation, and to manage the affairs thereof, under the orders of the court, the receiver giving bond in the sum of $200,000 for the faithful discharge of his duties. At the time of such appointment the barge “G-. W. Duncan,” in question, was lying at the landing at St. Louis, within the State of Missouri, and within the jurisdiction of said court. The receiver immediately took possession of the barge, and afterward, on the 6th day of November, 1880, he chartered the barge to the steamer “E. W. Cole,” for a trip up the Mississippi river and return. The barge was taken, under the charter, up the river as far as Quincy, Illinois, where it was detained by the ice, and remained until, the levy of the-writ of attachment in this case upon it on the 21st day of April, 1881. At the request of the captain of the steamer “E. W. Cole, ” the receiver released him from the charter, and took possession of the barge at Quincy, and ever since, until the levy of the attachment, retained such possession, having a watchman over and guarding the barge against danger. The receiver made an effort to have the barge removed to St. Louis as soon as the river was clear of ice, having made a contract with a steamboat line for the purpose, but did not succeed in having the removal made before the attachment. The court which appointed the receiver, at its April term, 1881, made an order authorizing the receiver to intervene in the attachment suit, and take the necessary steps to secure possession of the barge.
    Mr. Geobge W. Fogg, for the appellant:
    No one can interplead except he is the owner of the property attached. Sec. 29, Attachment act; City Ins. Co. v. Commercial Bank, 68 Ill. 349.
    A receiver by his appointment does not become the legal owner of the property of the debtor. Yeager v. Wallace, 44 Pa. St. 294; Coates v. Cunningham, 80 Ill. 468; Olney v. Tanner, 10 Fed. Rep. 104; Boyle v. Townes, 9 Leigh, 158.
    The appointment of a receiver does not change the title, nor create any lien upon the property. Ellis v. Boston H. and E. R. R. Co. 107 Mass. 1; Chase’s case, 1 Bland’s Ch. 206.
    His right is only a right to the possession. It is neither a jus in re nor a jus adrem. Story’s Eq.'sec. 352; State v. Railroad Comrs. 12 Vroom, 249.
    No title is vested in a receiver. Edwards on Receivers, 4 ; Kerr on. Receivers, 132; Beverly v. Brooke, 4 Gratt. 187; Singerly v. Fox, 75 Pa. St. 114.
    Receivers are not possessed as owners. Their possession is that of the court. High on Receivers, secs. 1, 2; Richards v. People, 81 Ill. 524; Tremper v. Brooks, 40 Mich. 325; Andrews v. Smith, 5 Fed. Rep. 837.
    The receiver had abandoned the property on April 21, 1881. Cases where lien .of attachment, etc., lost by not continuing in possession in the State: Drake on Attachment, sec. 431; Corrington v. Smith, 8 Pick. 419; Sanderson v. Edwards, 16 id. 144; Dick v. Bailey, 2 La. Ann. 974; Conn v. Caldwell, 1 Gilm. 531.

      A receiver can not sue in his own name. ' 2 Daniell’s Chancery Prac. 1977; High on Receivers, 210; Freeman v. Winchester. 10 S. & M. 577; Pitt v. Snowdon, 3 Atk. 750; Wilson v. Allen, 6 Barb. 542.
    Comity will not require rights of foreign citizens to be preferred to domestic creditors. Zipcey v. Thompson, 1 Gray, 215; Papue v. Lester, 11 Conn. 196; Rorer on Inter-State Law, 39; 2 Kent, 102; Green v. Van Buskirk, 5 Wall. 307; Bishop on Assignments, sec. 261; Burrill on Assignments, sec. 306.
    In the courts of this State a foreign receiver has no stand- . ing as a suitor or interpleader, as owner for the property of the insolvent debtor found here. Hunt v. C. F. Ins. Co. 55 Maine, 297; Hurd v. City of Elizabeth, 41 N. J. 1; Taylor v. C. Ins. Co. 14 Allen, 345; 17 How. 322; 11 Fed. Rep. 534; 52 Mo. 19.
    Messrs. Sweenex, Jackson & Walker, for the appellee:
    Any one may interplead who can maintain trespass, replevin or trover. A sheriff has such a special property in personal property levied on by him as to give him the right to maintain those actions. Martin v. Watson, 8 Wis. 315; Boyle v. Townes, 9 Leigh, 158; Cannon v. Kinny, 3 Scam. 10; Warner v. Mathews, 18 Ill. 83; Craig v. Peake, 22 id. 185 ; Scarles v. Crombie, 28 id. 396; Broadwell v. Paradice, 81 id. 474; Meadowcroft v. Agnew, 89 id. 472; Laclede Bank v. Keeler, 103 id. 425; Brownell v. Manchester, 1 Pick. 233.
    The Appellate Court has found there was no abandonment, which is conclusive. Yet the facts show there was no abandonment. Drake on Attachments, secs. 258, 423, 427, 428, 432; Sanderson v. Edwards, 16 Pick. 144; Hemmimvay v. Wheeler, 14 id. 408; Butterfield v. Clemence, 10 Cush. 269.
    It has long been recognized as the law, that where a legal title to personal property has once passed and become vested in accordance with the lex rei sites, its validity will be recognized everywhere. Wharton on Conflict of Laws, sec. 307; Wales v. Alden, 22 Pick. 245; Clark v. Connecticut Peat Co. 35 Conn. 303; Bank of the United States v. Lee et al. 13 Pet. 120; Taylor v. Boardman, 25 Vt. 581; Boyle v. Townes, 9 Leigh, 158; Singerly v. Fox, 75 Pa. 114; Bagby v. A. R. R. Co. 86 id. 291; Wilson v. Allen, 6 Barb. 545; Rank v. St. John, 29 id. 585; Hurd v. City of Elizabeth, 41 N. J. L. 1.
    Property once vested in a receiver or assignee will not be disturbed in another State while it is retained by him in possession. Wharton on Conflict of Laws, see. 353, 353 a; Pond v. Cooke, 45 Conn. 126; Crapo v. Kelly, 16 Wall. 610; Wales v. Alden, 22 Pick. 245; Taylor v. Boardman, 25 Vt. 581 ; Cagill v. Wooldridge, 6 Baxter, (Tenn.) 580; McAlpin, Receiver, v. Jones et al. 10 La. Ann. 552; Paradice v. Farmers' Bank, 5 id. 711.
    In the ease of insolvent railroad corporations it is the duty of the receiver to use the cars in the customary course of business, even though he should temporarily remove them from the State. Kilmer v. Hobart, 58 How. Pr. 452; M. C. R, R. Co. v. C. and M. L. S. R. R. Co. 1 Bradw. 399; Ellis v. Boston R. R. Co. 107 Mass. 1; Barton v. Barbour, 3 McArthur, (U. S.) 212; Crapo v. Kelly, 16 Wall. 610.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

■ We will consider the case as properly presenting by the pleadings the question of the right to interplead in the suit in the capacity of receiver.

The general doctrine that the powers of a receiver are coextensive only with the jurisdiction of the court making the appointment, and particularly that a foreign receiver should not be permitted, as against the claims of creditors resident in another State, to remove from such State the assets of the debtor, it being the policy of - every government to retain in its own hands the property of a debtor until all domestic claims against it have been satisfied, we fully concede; and were this the case of property situate in this State, never having been within the jurisdiction of the court that appointed the receiver, and never having been in the possession of the receiver, ‘it would be covered by the above principles, which would be decisive against the claim of the appellee. But the facts that the property at the time of the appointment of the receiver was within the jurisdiction of the court making the appointment, and was there taken into the actual possession of the receiver, and continued in his possession until it was attached, take the case, as we conceive, out of the range of the foregoing principles. We are of opinion that by the receiver’s taking possession of the barge in question within the jurisdiction of the court that appointed him, he became vested with a special property in the barge, like that which a sheriff acquires by the seizure of goods in execution, and that he was entitled to protect this special property while it continued, by action, in like manner as if he had been the absolute owner. Having taken the property in his possession, he was responsible for it to the court that appointed him, and had given a bond in a large sum to cover his responsibility as receiver, and to meet such liability he might maintain any appropriate proceeding to regain possession of the barge which had been taken from him. (Boyle v. Townes, 9 Leigh, 158; Singerly v. Fox, 75 Pa. 114.) It is well settled that • a sheriff does, by the seizure of goods in execution, acquire a special property in them, and that he may maintain trespass, trover or replevin for them.

It is claimed that there was here an abandonment of the barge by leasing it and suffering it to be taken out of the State,—that the purpose in so doing was an unlawful one, and a gross violation of official duty. We do not so view it. The receiver was, by his appointment, authorized to manage the affairs of the corporation under the orders of the court. The business of the corporation was running boats on the Mississippi river, and chartering the barge for a trip up that river was but continuing the employ of the barge in the business of the corporation, and therefrom making an increase of the assets to’ be distributed among the creditors. Brownell v. Manchester, 1 Pick. 233, decides that a sheriff in- the State of Massachusetts, who had attached property in that State, did not lose his special property by removing the attached property into the State of Rhode Island for a lawful purpose. Dick v. Bailey et al. 2 La. Ann. 9 Jé, holds otherwise in respect to property attached in Mississippi, and sent by the sheriff into Louisiana for an illegal purpose. It is laid down in Drake on Attachment, (5th ed.) sec. 292, that the mere fact of removal by an officer of attached property beyond his bailiwick into a foreign jurisdiction, without regard to the circumstances attending it, will not dissolve the attachment; that if the purpose was lawful, and the possession continued, the attachment would not be dissolved; but if the purpose was unlawful, though the officer’s possession remained, or if lawful and he lost his possession, his special property in the goods would be divested,—citing the two eases above named. We do not consider that there was any unlawful purpose here in the chartering and employing of the barge, as was done.

It is insisted the possession of the barge was lost. There was certainly evidence tending to show, possession by the receiver up to the time of the attachment, and in support of the judgment of the Appellate Court we must presume that it found the existence of all the facts necessary to sustain the judgment, where there was evidence tending to show their existence, and that court’s finding of fact is conclusive upon us. By taking the barge into his possession within the jurisdiction of the court that appointed him, a special property in the barge became vested in the receiver, and it is the established rule that whére a legal title to personal property has once passed and become vested in accordance with the law of the State where it is situated, the validity of such title will be recognized everywhere. Caniwell v. Sewell, 5 Hurl. & N. 728; Clark v. Connecticut Peat Co. 35 Conn. 303; Taylor v. Boardman, 25 Vt. 581; Crapo v. Kelly, 16 Wall. 610; Waters v. Barton, 1 Cold. (Tenn.) 450.

Under this rule we hold that where a receiver has once obtained rightful possession of personal property situated within the jurisdiction of his appointment, which he was appointed to take charge of, he will not be deprived of its possession, though he take it, in the performance of his duty, into a foreign jurisdiction; that while there it can not be taken from his possession by creditors of the insolvent debtor who reside within that jurisdiction. Where a receiver of an insolvent manufacturing corporation, appointed by a court in New Jersey, took possession of its assets, and for the purpose of completing a bridge which it had contracted to build in Connecticut, purchased iron with the funds of the estate and sent it to that State, it was decided that the iron was not open to attachment in Connecticut by a creditor residing there. (Pond v. Cooke, 45 Conn. 126.) And where C. was appointed, by a court in Arkansas, receiver of property of T., a defendant in a suit, and ordered to ship it to Memphis for sale, and to hold the proceeds subject to the order of the court, and did so ship it to Memphis, where it was attached by creditors of T., it was held that C. could maintain an action of replevin for the property in. Tennessee. (Cagill v. Wooldridge, 8 Baxter, 580.) Kilmer v. Hobart, 58 How. Pr. 452, decides that receivers appointed in another State, and operating a railway as such, but having property in their hands as receivers in New York, can not there be sued,—that an attachment issued in such suit will be vacated.

This is not the ease of the officer of a foreign court seeking, as against the claims of creditors resident here, to remove from this State assets of the debtor situate here at the time of the officer’s appointment, and ever since, and of which he had had no previous possession. It is to such a case as that, as we understand, that the authorities cited by appellant’s counsel apply, and not to a case like the present, where the property was, at the time of the appointment of the foreign receiver, within the jurisdiction of the appointing court, and there taken into the receiver’s possession, and subsequently suffered by him to be brought into this State in the performance of his duty, and his possession here wrongfully invaded, and he seeking but redress for such invasion.

The judgment of the Appellate Court must be affirmed.

Judgment affirmed.


author: Mr. Justice Walker

text:
    Peter Saup et al. v. J. S. Morgan & Co.

      Filed at Mt. Vernon January 22, 1884.

    1. Taxation—tax on capital stock is a personal tax. Capital stock of a corporation is personal property, having no ingredient of real estate, and hence a tax levied on it is clearly a personal tax, and becomes a lien on personal property only from the issue of the warrant for its collection.
    2. Same—Hen lost by return of warrant. The lien of a collector’s warrant upon personal property of the tax debtor for his personal tax expires on the return of the warrant to the county clerk, and the issue of a subsequent warrant for the collection of such tax will not affect the rights of an intermediate purchaser of personal property from the tax debtor, and he will take the property free from any lien on the part of the State; and if it is attempted to be levied on for such taxes, the levy may be perpetually enjoined on bill by such purchaser.
    Writ op Error to the Circuit Court of Alexander county; the Hon. David J. Baker, Judge, presiding.
    This was a bill in chancery, by J. S. Morgan, S. E. Peabody and J. C. Rogers, against Peter Saup, collector of the county of Alexander, Robert Wilson, James H. Carter, George E. Beerwith, W. J. Coppinger, Benjamin E. Logan, William M. Lewis, John T. Bnrketh, and George Michels, collectors, respectively, of the counties of Pulaski, Johnson, Saline, Williamson, White, Lawrence, Wahash and Edwards.
    Mr. A. G. Damron, Mr. L. M. Bradley, Mr. W. V. Choisser, and Mr. P. A. Pearce, for the plaintiffs in error.
    Messrs. Greene, Burnett & Humphrey, for the defendants in error.
   Mr. Justice Walker

delivered the opinion of the Court :

This was a bill to enjoin taxes levied on the capital stock of the Cairo and Yincennes Railroad Company. The bill alleges that defendants in error are the owners of the rolling stock used in operating the road; that the collectors of taxes in the various counties through which the road is located, are threatening to seize and sell their rolling stock to pay that tax. It is also alleged that a suit in chancery was pending in the United States Circuit Court for the Southern District of Illinois, and that on the 5th of March, 1874, the court appointed two receivers to take charge of the road and property; that one of them declined to act, and another was appointed in his stead on the 12th day of May following; that they entered upon the discharge of their duties in the premises, and commenced operating the road; that on the 6th day of January, 1875, the receivers petitioned the court for leave to borrow money to pay taxes due from the road, and to make improvements permanent in their character; that leave was granted, and they, on the 1st day of February, 1875, borrowed of complainants the sum of $80,027.85, and mortgaged the rolling stock to secure its payment; that the sum borrowed was not paid at maturity, and complainants applied for and obtained leave to foreclose the mortgage, which they did, and became the purchasers on the 28th day of April, 1876; that the receivers thereupon applied to the court for leave to lease the rolling stock thus purchased by complainants, to be used in operating the road, and leave was granted, and the lease was- made; that the State Board of Equalization, at its session in 1873, assessed the tangible property of the railroad at $1,134,757, upon which the tax has been paid, and at the same session the board fixed the valuation of the capital stock of the company at $1,099,887; that this assessment of capital stock was apportioned among the counties through which the road was located; that the tax was levied and extended by the clerks -of these various counties in the collectors’ books, and they were delivered to them for the collection of the taxes, but they were not collected, and the various collectors returned their tax warrants in the month of June, 1874, upon which the taxes on the capital stock for 1873 were extended. It is charged that by that return all lien on the rolling stock of complainants'was lost and discharged. It is also charged that the taxes on the capital stock for the year 1873 were not carried ’forward to the collectors’ warrants for the tax of 1874 for collection. It is further charged that at the time the chattel mortgage was executed on the rolling stock, the only tax books in the hands of the different collectors were the books for the taxes of 1874, and upon them there was no entry of capital stock for the year 1873; that in April, 1876, when the chattel mortgage was foreclosed and complainants purchased the rolling stock, the collectors’ warrants of 1875, and no others, were in the hands of the collectors, and the taxes on the capital stock for the year 1873 were on none of the collectors’ warrants; that the tax warrants for 1874 and 1875 were returned in the month of June following their receipt, but the collectors’ warrants delivered to these various collectors in the month of December, 1876, each embraced this tax on the capital stock for 1873, and they were commanded to collect the same by these warrants, and the collectors were threatening to seize and sell their rolling stock for the satisfaction of that tax. On a hearing in the circuit court the relief sought was granted, and a perpetual injunction was decreed, and the People bring the record to this court and assign various errors, only a portion of which we deem Sufficiently important to require consideration.

Capital stock is personal, and not real, property. It has no ingredient of real estate, but it has every element of personalty. It is as much personal as notes or bonds. Not having a single element of realty, a tax levied on if is indisputably a personal tax. The 10th section of article 11, of our constitution, declares that the rolling stock and other movable property of any railroad company or corporation in this State shall be considered personal property, etc. Defendants in error purchased the rolling stock after the return of the warrant to the county clerk, and after the lien had expired, and consequently free from the lien. Having purchased it free from the lien, it could not be revived on this property in the hands of a purchaser by issuing another tax warrant in 1876. No doubt the subsequent warrant became a lien on the personal property owned by the railroad at the time it was issued, but not on the property of other persons. The statute will not bear a construction that the lien on personal property is perpetual, and can be revived at any time by issuing a new collector’s warrant against property after it has been sold free from the lien.

The entire record considered, we fail to find any error for which the decree of the circuit court should be reversed, and it is affirmed.

Decree affirmed.


author: Mr. Justice Scott

text:
    Ella Douthett v. Samuel Winter.

      Filed at Mt. Vernon January 22, 1884.

    1. Homestead—exemption from sale under judgment for taxes. Beal estate occupied as a homestead is exempt from levy and sale under execution issued upon a judgment in personam against the debtor, notwithstanding such judgment may be for taxes on the same property due the State or county by the defendant therein. That part of section 3 of the act relating to exemptions, which provides that no property shall be exempt from sale for nonpayment of taxes, etc., has application only to proceedings in rem against the property in which two years’ redemption is allowed, and not to sales under a judgment in personam, except where it is based on a debt or liability for the purchase money or improvements.
    2. Taxes—lien of, not enforcible in ordinary action. The lien given by law upon land for taxes due thereon, whatever its force and scope may be, can not be enforced in an ordinary action at law by the county or State against the tax debtor. That can only be done by bill in chancery, under the statute.
    Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of Effingham county; the Hon. Thomas S. Casey, Judge, presiding.
    Mr. Henry B. Kepley, for the appellant:
    A tax on real estate is a lien thereon from the first day of May in the year it is levied, prior to all other liens, demands or claims whatever, and a title based upon a valid sale under a judgment rendered for such tax against the owner, takes precedence of, and is not subject to, the right of homestead in, or other liens. Rev. Stat. chap. 120, sec. 253; People v. Stahl, 101 Ill. 346; Cooper et al. v. Corbin et al. 105 id. 224; Eaton’s Appeal, 83 Pa. St. 152; Dunlap v. Gallatin County, 15 Ill. 7; Dennis v. Maynard et al. id. 477; Almy v. Hunt, 48 id. 45; Binkert v. Wabash Ry. Co. 98 id. 206; Rogers v.
      Dickey, 1 Gilm. 645; Cooley on Taxation, 305, 306, and cases cited; Burroughs on Taxation, 371, 374; Stokes v. State of Georgia, 45 Ga. 412; People v. Biggins, 96 Ill. 481.
    Section 253 of the Revenue law, and section 3 of the Exemption law, taken either separately or together, effectually and wholly exclude all right of homestead in a ease like this.
    A title based on a sheriff’s sale of real estate under a judgment for the purchase -money thereof, takes precedence of the right of homestead, even when the fact that it is for the purchase money does not appear from the judgment, but has to be shown by extrinsic evidence, and that the homestead exemption may be impeached and defeated by a purchaser at a sheriff’s sale, by proof that the sale was under a judgment for a demand that is within the exceptions of the Statute of Exemptions. People v. Stahl, 101 Ill. 346; White v. Clark et al. 36 id. 532; Durham v. Bostick, 72 N. C. 356; Freeman on Judgments, 180, 181; Stevenson v. Marony, 29 Ill. 532.
    The same principle that applies to a demand for purchase money will certainly apply to a demand for taxes.
    When a debt secured by lien is reduced to a judgment, the lien is not lost, but follows the indebtedness in its new form so long as it can be identified. Eschback v. Pitts, 6 Md. 71; Wayman et al. v. Cochran, 35 Ill. 152; People v. Stahl, 101 id. 346; Almy v. Hunt, 48 id. 45; Ober v. Gallagher, 93 U. S. 206; Jones on Mortgages, secs. 1215, 1220, 1221; Dunkley v. Van Buren, 3 Johns. Ch. 330.
    Mr. B. E. Kagay, and Mr. John C. White, for the appellee :
    While the State may proceed in rem against land for taxes, or bring a personal action against the tax debtor, at its election, yet each remedy must be in a manner peculiar to itself, and by the means which the law has made applicable and appropriate to the one chosen. A personal judgment for taxes can not operate both in personam and in rem at the same time. People v. Stahl, 101 Ill. 346.

      Homestead, under the law of 1851, is exempt from sale under a judgment for a tort, the same as a debt. (Conroy v. Sullivan, 44 Ill. 451.) Also, from a sale under a judgment for a fine and costs rendered in a criminal prosecution. Loomis v. Gerson, 62 Ill. 13.
    .The clause in the Homestead Exemption act that the exemption should not apply to sales for non-payment of taxes or. assessments, or for debt, etc., for the purchase or improvement thereof, was intended to and does apply only to judgments and decrees in personam. Douthett v. Kettle, 104 Ill. 356; Humes et al. v. Gossett, 43 id. 299.
    • This was a proper matter of defence to the action of forcible detainer, and the judgment of the court in refusing a writ of possession was correct. Connor v. Nichols, 31 Ill. 148 ; Smith v. Miller, id. 157; Thornton v. Boyden, id. 200.
   Mr. Justice Scott

delivered the opinion of the Court:

This was an action of forcible detainer, brought by Ella Douthett, against Samuel Winter, before a justice of the peace, to recover possession of a tract of land described by its numbers in the complaint filed. On the trial before the justice of the peace plaintiff recovered a judgment, hut on defendant’s appeal to the circuit court, where a trial ele novo was had, judgment was rendered for defendant. The latter judghient was affirmed in the Appellate Court-for the Fourth District, and a majority of the judges of that court having .certified the ease, in their opinion, involves questions of law of such importance, on account of collateral interests, it should be passed on by the Supreme Court, plaintiff brings the case to this court on appeal, as' is authorized to be done by the Practice act.

It is not controverted, demand in writing was made on defendant for the possession of the premises in controversy, and that he refused to surrender possession. Plaintiff’s right to possession is based on a sheriff’s deed to the property, made in pursuance of a sale on an execution issued on a transcript judgment from a justice of the peace, which had been filed in the office of the clerk of the circuit court, as the statute provides may be done. No objection is taken to the regularity of the sheriff’s deed that in any essential degree affects its validity, or to the regularity of the proceedings anterior to the making of the deed. It is admitted the premises described in the sheriff’s deed are the homestead of defendant, and have been occupied by him as such for the last twenty years past, and the defence insisted upon is, the premises were not subject to sale under the execution issued on the transcript judgment in evidence, unless his homestead therein had first been set off to him, according'to the provisions of the statute in that behalf, which had not been done. On the other hand, plaintiff maintains the judgment under which the property was sold was recovered for forfeited taxes due on the property itself, and therefore the property is liable to levy and sale under this judgment, because of section 3 of the Homestead act, which provides, “no property shall, by virtue of this act, be exempt from sale for non-payment of taxes or assessments, or for any debt or liability incurred for the purchase money, or improvements thereon.” The position taken is, as this judgment was recovered for forfeited taxes due on the property, the subsequent sale under the execution was in law a “sale for the non-payment of taxes, ” as those terms are used in the “Homestead act,” and hence the premises, although the homestead of defendant, are not exempt from sale under the execution.

The vice of the argument on this branch of the case lies in the assumption the sale at which defendant’s property was sold was a “sale for the non-payment of taxes.” Such is not the fact. It was a sale on an execution issued on a personal judgment recovered against defendant in a civil action. It is true the judgment was recovered for taxes due from defendant to the county of Effingham, and, doubtless, for the taxes due from defendant on. the property in controversy. This court has decided in Douthett v. Kettle, 104 Ill. 356, whether the subject matter of the suit was taxes, or a promissory note, can make no difference. It was further held in that case, a sale on an execution, although issued on a judgment recovered for taxes, is not a sale for the “non-payment of taxes, in the ordinary acceptation of that term. ” A “tax sale, ” or, what is the same thing, a “sale for the non-payment of taxes, ” has a distinct and well defined meaning. It means a.sale made in a proceeding “in rem, ” and was so generally understood when the Homestead law was enacted. It will be considered the phrase, a “sale for the non-payment of taxes,” was employed in the statute in the sense it was commonly understood at the time, and that was, as has been seen, a sale made in a proceeding in rem, and not a sale on air execution issued on a judgment in personam. If a sale under an execution on a judgment recovered for taxes was a “tax sale,” or a “sale for the non-payment of taxes,” the defendant would clearly be entitled to a period of two years in which to redeem his property from such a sale. Being a constitutional provision, the owner could not be deprived of that privilege if his property rvas sold for the “non-payment of taxes.” But that is not the case. This- court has decided in Douthett v. Kettle, the law in regard to redemptions from tax sales has no application to a sale on execution issued on a judgment recovered for taxes, but the redemption must be made as is required to be done in other execution sales of real property.

Another ground relied on is, the statute making taxes upon real property a prior and first lien on such property, superior to all other liens and incumbrances, also makes it a superior lien over any right of homestead secured by the statute. Whatever may be the force and scope of the lien given by law to secure the payment of taxes, it is a sufficient answer to the position taken to say this is not a proceeding to enforce any such lien. That can only be done by bill in chancery, under the statute, as was done in Biggins v. The People) 106 Ill. 270. The original suit by the county of Effingham against the defendant in this suit, was one of the statutory remedies given for the collection of taxes owing by the citizen to the State or the county, as any other demand could be collected. Taxes are sometimes treated as a debt owing by the citizen to the State, and it was for that reason it was thought a suit at common law might be maintained for the collection of taxes, independently of any enabling statute.

It is to be noticed, also, that section 3 of the Homestead act has not authorized the sale of the homestead on account of any debt or liability incurred for taxes due to the State or county, or to any municipality, as it does in ease of a debt or liability incurred for the purchase money of the property, or for any improvements thereon. The provision is, the homestead shall not be exempt from a “sale for the non-payment of taxes.” That is a very different thing from a sale under a judgment recovered on a demand or liability, at common law or otherwise, for taxes owing by the party to the county or the State. The legislature has not seen fit to subject the homestead to sale on such a judgment, as it has done under a judgment recovered for a debt or liability for the purchase money of the property, or for any improvements thereon, and this court has no desire or rightful authority to enlarge the provision of the statute in that respect by judicial construction.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.

Walker and Scholfield, JJ.: We do not concur either in the reasoning or the conclusion in this case.


author: Mr. Chief- Justice Sheldon

text:
    Roscoe G. Jordan v. R. F. Davis et al.

      Filed at Springfield Oct. 1, 1883

      Rehearing denied January Term, 1884.

    1. Appead—as to amount or value involved—in forcible detainer. Forcible detainer was brought by a lessee against a prior tenant in possession. :The plaintiff’s claim to the premises was under a lease from the owner, for a term- of five years, from March 1, 1882, at the rent of $1650 per year. The defendant’s claim was under a paper purporting to be a lease from the same lessor, coveiing the same term, for the rent of $1500 per year. On appeal to the Appellate Court a judgment for the defendant was affirmed. On a further appeal to this court, it was held the amount or value involved in the suit exceeded $1000, and on that ground jurisdiction of th.e appeal was _ entertained.
    2. Deed—delivery—effect of placing in hands of grantee. It is essential that a deed, lease, or other instrument, should be understood by the ' parties to be completed and ready for delivery, in order to have the mere placing of it in the hands or possession of the grantee or his agent construed into a delivery.
    3. Contract—delivery essential—question of intent. The delivery of a written contract is indispensable to its binding effect, and such delivery is not conclusively proved by merely showing the placing of the paper by one of the alleged contracting parties .in the hands of the other. Delivery is a question of intent, and it depends on whether the parties at the time meant it to be a delivery to take effect presently.
    4. Same—placing lease in hands of lessee to procure a guaranty, no ' execution or delivery. Where the owner of land had a written lease drawn, ■which was signed by the parties, and left with the lessee to procure an indorsement of a guaranty for the payment of the rent and to have a duplicate drawn, it was held, this was no execution or delivery of the lease as the deed of the lessor, and could not be such until the guaranty of the rent had been obtained, and that the subsequent communication of the lessee to the lessor of the former’s inability to obtain the guaranty, terminated the negotiation and the initiatory proceeding in making the lease, and that a guaranty subsequently obtained availed nothing without the assent of the lessor.
    5. Evidence—parol, to rebut presumption of delivery of deed. While it is not competent to contest a deed by parol evidence when it has once taken effect by delivery, it is always competent by such evidence to show that the deed, though .in the hands of the grantee, has never been delivered. Bor this purpose the original verbal agreement may be shown,—as, that a written guaranty for the payment of rent was to be procured and indorsed on a lease before it should take effect, and that it was placed in the lessee’s hands merely to enable him to get such indorsement.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of McLean county; the Hon. Owen T. Reeves, Judge, presiding.
    Messrs. Tipton & Tipton, for the appellant:
    This is a proceeding to recover possession of ¡>5000 worth of property. It is not an action ex eontractu, and section 25, chapter 37, and section 91 of the Practice act, in the Revised Statutes, does not affect the right to an appeal or writ of error. Until a duplicate lease was drawn, and the guaranty indorsed thereon, no binding agreement existed. Boyd v. Hind, 36 Eng. L. & Eq. 366; Govener v. Petch, 28 id. 479; Townsend v. Hubbard, 4 Hill, 351; Townsend v. Coming, 23 Wend. 443; Fisk v. Levine, 16 La. Ann. 29; Dodge v. Hopkins, 14 Wis. 630 ; Crane v. Partland, 9 Mich. 493; Morrill v. Tahama M. and M. Co. 10 Nev. 125; Tewksbury v. O’Connell, 21 Cal. 6.
    After notice of inability to procure the guaranty as agreed, ■ Pearce had the right to treat the negotiation as ended, and lease to appéllant. Parsons on Contracts, 477; Baker v. Johnson, 4 Wheat. 226; Carr v. Duvall, 14 Pet. 77; Jenness v. Mt. Hope Iron Co. 53 Mo. 20; B. and M. S. Ry. Co. v. Town of Unity, 62 Mo. 148; Fox v. Turner, 1 Bradw. 155.
    A delivery is indispensable to the validity of a lease. Ben-tons. Martin, 52 N. Y. 570; Chandler v. Chandler, 21 Ark. 95; Hing v. Wood-bridge, 34 Vt. 565; Crane v. Partland, 9 Mich. 493; Choteau v. Sydam, 21 N. Y. 181; Callender v. Cosgrove, 17 Conn. 1; Burson v. Huntington, 21 Mich. 416; Morrill v. Tahama M. and M. Co. 10 Nev. 129.
    The copy of the lease being in the possession of appellee Davis, was but prima facie evidence of its delivery, (Billings
      v. Stark, 15 Fla. 297,) and may be shown by proof. Tunison v. Chamblin, 88 Ill. 378.
    The question of delivery is one of intention, and the possession of the instrument is but prima facie evidence of delivery. Billings v. Stark, 15 Fla. 297; Hill v. Ege, 79 Pa. St. 15; Gould v. Day, 94 U. S: 405 ; Carnes v. Platt, 41 N. Y. 435.
    If the deed is merely left with the grantee for examination, • or if anything more remains to be done to perfect it, there is no delivery. Stiles v. Probst, 69 111. 382; Groves v. Dudley, 20 N. Y. 76.
    Mr. H. Gl. Beeves, for the appellees:
    This suit does not involve $1000, but simply the right of possession to land. The recovery of rent or damages is not involved, and hence the judgment of the Appellate Court is final. McGuirk v. Burry, 93 Ill. 118; Preston et al. v. Gahl, 94 id. 586; Schofield et al. v. Pope, 104 id. 130.
    'This case should be affirmed, because justice has been done. If Pearce, before he and Davis went into ’Squire Shepherd’s office to have the contract drawn and executed, said to Davis he wanted Snyder’s guaranty, Davis’ failure to obtain this guaranty does not invalidate the written contract under seal. Pickrel v. Rose, 87 Ill. 263; Fitzgerald v. Staples, 88 id. 234; Weaver v. Fries, 85 id. 356.
    If Pearce and Davis agreed, after the written lease was signed, and after Pearce had ordered the ’Squire to deliver the same to Davis, that Snyder’s guaranty should be obtained, this would be an agreement without consideration, and would not invalidate the sealed instrument.
   Mr. Chief- Justice Sheldon

delivered the opinion of the Court:

This was an action of forcible detainer, brought by Jordan, against Davis and one Twoma, a tenant upder Davis. One Pearce'was the owner of the premises. He had previously leased them to Davis for a term of five years, which would expire March 1, 1882, the payment of the rent having been guarantied by one Snyder, the father-in-law of Davis, the guaranty being indorsed^on the lease. Jordan’s (the plaintiff’s) claim to the premises was under a lease from Pearce, the owner, bearing date December 2, 1881, for the term of five years, from March 1,1882, at the rent of $1650 per year. Davis’ (the defendant’s) claim was under a paper writing purporting to be a lease from Pearce to Davis, made October 6, 1881, for the term of five years, from March 1, 1882, for the rent of $1500 per year. There was judgment for the defendants, which was affirmed by the Appellate Court for the Third District, and the plaintiff appealed to this court.«

A motion was made to dismiss the appeal foy want of jurisdiction of this court. The amount or value involved in the suit appears to be more than $1000, and on this ground we are of opinion this court may properly entertain jurisdiction of the appeal. See Cummins v. Holmes et al. 107 Ill. 552.

The point of contest, on the merits of the case, is whether the paper writing of October 6, 1881, purporting to be a lease from Pearce to Davis, was ever delivered by Pearce to Davis, so that it became a valid lease binding upon Pearce. Pearce resided in Kentucky, and there was evidence tending to show that on October 6, 1881, Pearce met Davis at Chenoa, in this State, where the premises are situate, and made an agreement with Davis to lease to him the premises for five years, from March 1, 1882, at the rent of $1500 per year, the payment of the rent to be guarantied by Snyder, the father-in-law of Davis, by Snyder’s guaranty, in vmting indorsed on the lease, as it had been on the former lease; that they went into the office of a scrivener to have the. lease drawn in duplicate ; one was drawn and signed by Pearce and Davis, and Pearce, being about to leave on a train for Chicago, could not wait for the duplicate to be drawn, and it was left to be drawn by the scrivener, and then both be handed to Davis, which was done; that Snyder was not at home at the time, and Davis was to see him and get his signature to a guaranty of payment of the rent; that on November 11, 1881, Davis wrote to Pearce that it was impossible for him to get the guaranty, and that the land was at Pearce’s disposal, if Pearce did not .consider Davis responsible, and at the same time.Snyder wrote Pearce that he would not guaranty the payment of the rent; that no further communication took place between Pearce and Davis, except that Pearce 'testifies that on receipt of Davis’ -letter he wrote to Davis that their trade was off, and he had-authorized his agent, Mr.'Bishop, to rent the land to. a Mr. Jordan, and. on November 30, -1881, Shyder mailed to Pearce a copy of the lease, with an indorsement upon it of his guaranty of payment of the rent, which was received by Pearce and returned by him to Snyder; that on December 2, 1881, the lease from Pearce to Jordan was made through Mr. Bishop, the agent of Pearce in this State.

At the trial the plaintiff asked the following instruction to the jury: f

- “That if the lease of October 6, 1881, was signed and left with the defendant for the purpose of procuring a written guaranty, and signed by Snyder, and then to be forwarded to Pearce, pud that-the same was-not to become a binding contract between the parties until the same was so guarantied, then before Pearce was bound to regard the contract as completed he was entitled to a valid and binding lease guarantied by Snyder; and if not made in a reasonable time, or on notice by the defendant that he could not procure the guaranty of Snyder, and that he might regard the contract at an end unless he would let him have it without security, this would end the contract, unless Pearce afterwards agreed to let him have it without security. ”

This, with other instructions of like purport, was refused. In this we think there was error. The delivery of a written contract is indispensable to its binding effect, and such delivery is not conclusively proved by showing the placing of the paper by the alleged contracting party in the hands of the other. Delivery is a question of intent, and it depends whether the parties at the time meant it to be a delivery to take effect presently. Upon the hypothesis of the refused instruction, which there was evidence tending to prove, there was no completion of the contract to lease until there had been a guaranty by Snyder of payment of the rent, and the leaving of the lease, signed by Pearce, in the hands of Davis for him to get the indorsement of the guaranty of the rent upon it, was not an execution or delivery of the lease as the deed of Pearce, and the execution of it would not be perfected and the delivery of it made until the guaranty of payment of the rent had been obtained. Mr. Washburn, in his treatise on Real Property, (4th ed.) vol. 3, pp. 292, 293, upon this subject, says : “It is an essential prerequisite that the instrument in question should be understood by the parties to be completed and ready for delivery, in order to have a mere placing it in the hands or possession of the grantee or his agent construed into a delivery. ” The subsequent refusal of Snyder to guaranty the payment of the rent, and Davis’ communication to Pearce of his inability to obtain the guaranty, terminated the negotiation, and the initiatory proceeding in the making of a lease, and the subsequently obtained guaranty, availed nothing without the assent of Pearce.

The trial of the cause in the circuit court proceeded upon an incorrect theory. The following instruction was given for the defendants:

“That if the jury believe, from the evidence, that the lease of October 6, 1881, admitted in evidence, was executed by Pearce and by Davis, and unconditionally delivered to Davis either by Pearce, or by Shepherd under Pearce’s direction, then such lease was not made to Davis upon condition that lie would procure J. E. Snyder to guaranty the payment of the lease; that no such condition is found in the lease, and no verbal agreement to give such guaranty, if made prior to the execution of the- lease, would be of any effect as against the terms of the lease. ”

This instruction, as applied to the facts in the case, was false and misleading. Shepherd was the scrivener who drew the lease. The testimony was that the contract for the lease was made between Pearce and Davis themselves before they came to the office of Shepherd to have the lease drawn. This being so, it might well be, as testified by Shepherd, that a.t the time the lease was delivered into the hands of Davis, in .Shepherd’s office, nothing was said about obtaining .the guaranty. But that was understood between the parties, if it had been arranged for before, as part of the contract, and might properly be shown, not as contradicting the contents of the writing, but as showing that the lease was never delivered,—that it was not placed in Davis’ hands as the act and deed of Pearce, but for the purpose of Davis getting upon it the indorsement of guaranty of the rent, when, only, it would ' be the lease of Pearce. The prior arrangement between Pearce and Davis for the lease would be part of the whole transaction, and it would be as if the terms of that arrangement had been repeated over at the time the lease was left in the hands of Davis. This instruction carried the wrongful idea to the jury that the condition for the guaranty of the rent, to be of avail, should have been embodied in the lease, and that a verbal agreement therefor, made prior to the drawing of the lease, could not be shown, as it would be contrary to the terms of the lease. The verbal agreement for the lease was not offered in contradiction of the terms of the lease, but to disprove delivery. The question of delivery is something aside from the writing in an instrument. It depends upon proof by parol, and the evidence of delivery arising from possession of tlie deed by the grantee may be rebutted by the same kind of evidence by parol. Further on, at the conclusion of the paragraph from which the above quotation is made, the same learned author says: “While, therefore, it is not competent to control a deed by parol evi-. denee when it has once taken effect by delivery, it is always competent, by such evidence, to show that the deed, though in the grantee’s hands, has never been delivered. ”

For error in refusing and giving the instruction, as above, by the circuit court, the judgment of the Appellate Court is reversed and the cause remanded.

Judgment reversed.

Mr. Justice Scott: I dissent from this opinion.


author: Mr. Justice Scholeield

text:
    Marion County v. Isaiah D. Lear.

      Filed at Mt. Vernon January 22, 1884.

    1. Rees and sararíes—sheriff's fees in criminal cases in case of acquittal—liability of county. Section 19, chapter 53, of the Revised Statutes, entitled “Rees and Salaries,” requiring counties to pay sheriffs their fees in criminal cases where the defendants-are acquitted, etc., and to make up any deficiency in their salaries, is in all respects consistent with the constitution, and a valid enactment.
    2. A county board can not refuse to pay a sheriff his fees in criminal cases, where the defendants are not liable for costs, if such fees are necessary to make up the officer’s salary; but where his salary has been collected and received in full, the county is not required to allow him such fees to be applied upon arrearages in his deputy hire and other expenses. The words, “actually collected,” in section 10, article 10, of the constitution, are intended to prevent, the legislature from empowering the county to take fees due as so much revenue, and compensating the officers by appropriation out of the general revenues of the county actually in the treasury.

      3. A sheriff’s salary, was fixed at $1000 per annum, and he was by a separate order allowed $800 per annum for deputy hire, expenses, etc. He collected for the two years he was sheriff, from fees earned by him, $2560.28, before applying to the county board for an allowance for fees earned in criminal cases; Held, that the county board properly refused the allowance. The sheriff can collect of the county only in case of a deficiency in his “salary,” which is his personal compensation.

      i. Police begulations—by whom to be enforced. Whether'the burden of enforcing police regulations, in the absence of express constitutional restrictions, shall be borne by the State at large or be devolved upon the local municipalities, is a mere question of public policy, upon which the determination of the General Assembly is conclusive.
    5. Ootjnty—legislative control over. A county is a public corporation, which exists only for public purposes connected with the administration of the State government, and it and its revenues are alike, where no express constitutional restriction is found to the contrary, subject to legislative control.
    Appeal from the Circuit Court of Marion county; the Hon. Amos Watts, Judge, presiding.
    Mr. C. E. Jennings, and Mr. M. Schaefer, for the appellant ;
    So much of section 19, chapter 53, of the Revised Statutes, as provides, “in all criminal cases where the defendant shall be acquitted, or otherwise legally discharged, without payment of costs, the sheriff shall be paid such fees from the county treasury,” is in conflict with section 10, article 10, of the constitution of 1870. This section of the constitution has been before this court in numerous cases for construction, and while section 19, chapter 53, has never been questioned in this court, it is believed the construction given to the clause of the constitution is in harmony with the position assumed by Jennings v. Fayette County, 97 111. 420; Daggett v. Ford County, 99 id. 334; Cullom v. Dolloff, 94 id. 331; Briscoe v: Clark County, 95 id. 309.
    Prior to the adoption of the constitutional provision the sheriff took the office cum onere, paid for his own stationery, fuel and other expenses, and received no pay from the county treasury, except for services rendered the county directly. Bryner v. Board of Supervisors, 24 Ill. 194; Irvin v. Alexander County, 63 id. 528; Edgar County v. Mayo, 3 Gilm. 82; Vise v. Hamilton County, 19 Ill. 78.
    It is evident that the object of this provision was to limit the compensation of the officer according to the class of his county, and not to increase the same. It could not have been intended to change a former self-supporting office to one not self-supporting, but a burden upon the people. This is clearly evinced by declaring that his “compensation shall be paid only out of the fees actually collected. ” This view, it is confidently believed, is sustained in the cases of Jennings v. Fayette County, and Daggett v. Ford County, supra.

    It has always been opposed to the policy of our laws to pay • officers from the county treasury, especially in criminal cases. Vise v. Hamilton County, supra; Edgar County v. Mayo, supra; Crawford County v. Sperry, 21 Ill. 288.
    Aside from any other reasons, the plaintiff can not recover because he has already received his own personal salary in full. He can not collect under the statute, from the county, deputy hire and office expenses. The words “compensation” and “salary” are used in the statute as synonymous terms. Crawford County v. Lindsay, 11 Bradw. 261.
    Mr. Henry C. Goodnow, for the "appellee:

      Jennings v. Fayette County, 97 Ill. 420, is not just like this. There the sheriff claimed the county was bound to pay him for all of his compensation he could not collect, whether from fees or not. The court properly held that the county could not pay him out of any fund other than fees. Here the sheriff is seeking to collect the fees allowed him and earned. This is not asking for payment of compensation out of the treasury other than in fees earned by him, and which fees the county is liable for when he fails to collect from other sources.

      The word “salary” is not used in section 10, article 10, hut the word “compensation,” and hence the word “salary” in the statute has no force, but evidently means compensation. The constitution requiring the board to fix the sheriff’s compensation with clerk hire, evidently means clerk hire or deputy hire is a part of the sheriff’s compensation, and hence the criminal fees can be applied to the payment of the deputy hire as well as salary. Kilgore v. People, 76 Ill. 552.
    Appellant claims that the fees under section 19 can only be applied to the payment of the sheriff’s personal services, 'but the well known principle that he who does through another does it himself, is applicable here, as the sheriff is responsible for his deputy. The board may fix the compensation of the sheriff to include deputy hire, or may fix the deputy hire separate. Wheelock et al. v. People, 84 Ill. 551.
   Mr. Justice Scholeield

delivered the opinion of the Court:

Appellee presented a claim to the board of supervisors of Marion county for balance due him. for compensation f.or services as sheriff, and for clerk hire, stationery, fuel, etc., to be paid by the county out of certain fees earned by him in criminal eases, where the defendant was acquitted or otherwise legally discharged without the payment of costs. The board of supervisors disallowed his claim, and he appealed from their decision to the circuit court of that county, and that court rendered judgment thereupon in his favor. This appeal is from that judgment, and it is prosecuted directly to this court upon the ground that the validity of a statute is involved in the decision of the ease.

The statute in question is so much of section 19, chapter 53, of the Revised Statutes of 1874, entitled “Fees and Salaries, as provides as follows: “In all criminal cases where the defendant shall be acquitted, or otherwise legally discharged, without payment of costs, the* sheriff shall be' paid such fees from the county treasury: Provided, that no such fees shall be paid to the sheriff from the county treasury when the fees collected by him during such year shall equal the compensation or salary allowed him by the county board; And, provided, further, that no more of such fees shall in any case be paid from the county treasury than shall be sufficient, with the fees collected, to make the salary or compensation of said sheriff.” The claimed invalidity is because of its repugnance to that part of section 10, article 10, of the constitution of 1870, which is in these words: “The county board * * * shall fix the compensation of all county officers, with the amount of their necessary clerk hire, stationery, fuel and other expenses; and in all cases where fees are provided for, said compensation shall be paid only out 'of, and shall in no instance exceed, the fees actually collected.”

The contention of appellant is, the language, “shall be paid only out of, and shall in no instance exceed, the fees actually collected,” amounts to a positive prohibition that the compensation shall, in any instance, be paid out of the county treasury,—that the words “actually collected” can have application only to cases where the sheriff shall collect the fees otherwise than pursuant to appropriation out of the county treasury. This is .plausible, but, in our opinion, nothing more. In a case where the duty of the county to pay fees is conceded, there could surely be no question, after it had paid and the sheriff had received such fees, but that he had “actually collected” them from the county, for the mode of enforcing- or effecting a collection, when it shall have been successful, can by no possibility affect the fact that money has been “actually collected. ” To illustrate: Suppose the county were liable t’o pay costs in suits in which it is an unsuccessful party, and that it is defeated in a suit, and judgment rendered against it for costs. The sheriff makes proper demand for the payment of the judgment, and through the proper process, and by the proper officer, payment of the judgment and costs is made to the sheriff. It is impossible to discriminate between this and other cases where the sheriff has collected a judgment, as to the fact that he has “actually collected” the judgment and costs. But it must follow that if, when costs are thus paid to the sheriff, they are literally “actually collected” by him, within the letter and spirit of the constitution, the county can not, by refusing to discharge its duty in the payment of costs, thus preventing the sheriff from actually collecting them, interpose -such failure as a reason'why it is not liable to pay them. The true theory of the application, in eases like the present, is not to have the county pay a salary to the sheriff, but to pay him certain costs which it owes, and which it is its duty to pay to him, in the given contingency, and then, when they are paid, he applies them, as well as other costs “actually collected,” to the payment of his salary, and, gives the county credit on account thereof in his settlement with it. It follows, of necessity, that in such attempt to enforce collection of costs it is competent for the county to show, in defence, that the contingency in which they are collectible does not exist. The purpose of the use of the words, “actually collected, ” in the connection in which they here occur, instead of being, as counsel contend, to discriminate between costs payable by an individual and private corporation and those payable by the county, was to prevent the legislature from empowering the county to take fees due, as so much revenue, and compensating the officers by appropriations out of the general revenues of the county actually in the treasury.

If we are thus far correct, it only remains, on this point, to inquire whether, apart from the language quoted from section 10, article 10, of the constitution of 1870, it was competent for the General Assembly to impose upon counties the duty of paying costs in the cases specified in the statute. We assume that no one would question the power of the General Assembly to impose such a duty upon the State. It would be a mere question of policy with reference to the enforcement of the Criminal Code,—an undoubted exercise of the police power. Whether the burden of enforcing police regulations, in the absence of express constitutional restriction,—and none such is here claimed,—shall be borne by the State at large, or be devolved upon the local municipalities, is a mere question of public policy, upon which the determination of the General Assembly is conclusive.

A county is a public corporation, which exists only for public purposes connected with the administration of the State government, and it and its revenues are alike, where no express constitutional restriction is found to the contrary, subject to legislative control. (County of Richland v. County of Lawrence, 12 Ill. 1; County of Pike v. State, 11 id. 202; Dennis v. Maynard, 15 id. 477.) And accordingly it was said, in People ex rel. City of Springfield v. Power, County Judge, 25 Ill. 191: “The revenues of a county are not the property of the county, in the sense in which the revenue of a private person or corporation is regarded. The whole State has an interest in the revenue of a county, and, for the public good, the legislature must have the power to direct its application. The power conferred upon a county to raise a revenue by -taxation is a political power, and its application, when collected, must necessarily be within the control of the legislature for political puiqioses.” And see, also, to like effect, Sangamon County v. City of Springfield, 63 Ill. 66; Logan County v. City of Lincoln, 81 id. 156.

Analogous instances of the undoubtedly rightful imposition of police burdens upon counties exist in the familiar cases of the paying grand and petit jurors for their services in enforcing the Criminal Code; the paying of salaries to State’s attorneys ; the paying of rewards for the capture, etc., of different classes of criminals; the paying of witness’ fees in criminal cases, in certain contingencies-; the providing and payment for support of paupers; the building of jails, and the paying for dieting, clothing, etc., of prisoners. Many other instances might be added, but it is surely unnecessary. We do not believe that any clearer power of legislation for police purposes exists under the constitution than that exercised in the enactment under consideration. We think it is, in all respects, consistent Avith the constitution, and therefore a valid statute. It is true the incumbent of an office takes it with its burdens, but he.no less takes it Avith its benefits, and the benefits of this enactment were a part of the inducement held out to him to accept 'the office at the salary or compensation fixed by the board of supervisors, and there is no more reason Avhy he should be deprived of this than of any other guaranty of compensation under which he accepted the office.

It was shown in proof, upon the trial, that appellee was sheriff of Marion county for tAvo years; that his salary or compensation was fixed at $1000 per annum, and he was, by a separate order, allowed $800 per annum for deputy hire, expenses, etc. He collected from fees earned as sheriff, before making the present application, $2560.28, which is, of course, in excess of his salary or personal compensation as sheriff, and appellant insists, on this state of facts, even conceding the statute to be constitutional, he is not entitled to collect the fees in the criminal cases from the county. We entirely concur in this view. The word “salary,” as used in the statute, clearly applies to the personal compensation provided to be paid to the sheriff for his own services. We have held that this personal compensation must be paid as fixed by the board of supervisors, and when fixed separately from the alloAvance made for deputy hire and other expenses, he can receive no more on the latter account than he shall actually pay out, not exceeding the sum fixed by the board. Jennings v. Fayette County, 97 Ill. 419; Daggett v. Ford County, 99 id. 334; Cullom v. Dolloff, 94 id. 330; Briscoe v. Clark County, 95 id. 309.

We are aware of no instance in our law where the word “salary” is used merely to express the idea of a payment for expenses actually incurred, and since it is to the statute alone to which appellee must look for authority to demand the payment of these fees by the county, he must show a deficiency in the payment of his “salaiw,”—i. e., personal compensation,—after applying to the payment thereof all the fees collected by him from other sources, before he can require the county to pay these fees in criminal cases, and then it can only be required to do so to the extent of such deficiency. For an elaborate and forcible presentation of the reasons applicable to this view we refer to Crawford County v. Lindsay, 11 Bradw. 261.

The judgment is reversed and the cause remanded.

Judgment reversed.