text:
    Warren W. Selleck v. Polly Selleck et al.

      Filed at Ottawa June 16, 1883

      Rehearing denied September Term, 1883.

    1. G-iet—whether transaction is a contract or gift. AVliere bonds are delivered by one person to another under an express promise, made in writing, by the latter, to return the same “whenever called for,” the promise is a written contract, the terms and conditions of which can not lawfully be varied or modified by parol proof, and such undertaking is entirely incompatible with the idea of an absolute gift.
    2. Same—retaining right to demand thing delivered, shozcs no present gift. AVhere a party delivers bonds to another under a written acknowledgment, from which it is evident the party making the delivery intends to retain his right to call for them if circumstances should inake^that course desirable, the transaction can not be regarded as an absolute gift, even though he never expected to call for them. In such case it matters not what may have been his motives for such action.

      3. Same—burden of proof to show a loan was converted into a gift. Where a loan is made, the burden of proof rests upon the borrower to show that what was at first a loan was afterwards changed into an absolute gift, if he claims a gift.

      4. Action—when prior demand necessary. If bonds are delivered by one person to another under a written contract to return the same “whenever called for,” no duty to return the bonds or their proceeds will arise until an actual demand for the same is made, and no right of action will accrue to the lender until after such demand is made, and the Statute of Limitations will not commence to run until the cause of action accrues.
    5. Instruction—not based on evidence, properly refused. Where there is no evidence tending to establish the fact of an advancement, instructions or propositions of law relating to the subject of advancements will be properly refused.
    Writ of Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Will county; the Hon. Francis Goodspeed, Judge, presiding.
    On December 23, 1869, Mrs. Eliza Wood, then a resident of Illinois, while in Connecticut, on a visit to her brother, the plaintiff in error, delivered to him three bonds of Cook county, Illinois, for $1000 each, and took from him a writing, as follows:
    “Bridgeport, December 23, 1869.

    “Received of Mrs. Eliza N. Wood, three ($3000) thousand dollars in Cook county bonds, the interest to be used by me while in my possession, to be delivered to her whenever called for.
    Warren W. Selleck. ”
    On November 30, 1870, Mrs. Wood, being in Illinois, wrote a letter, addressed to her “brother and sister,” (meaning plaintiff in error and his wife,) saying that she “was disappointed at not finding a letter from you. You have not written whether the proposition I made was agreeable to you. * * * I might not have been very explicit. I thought if you could get time on the payment, at six per cent, you would gain $30 a year by keeping the bonds, and more if you had to sell them so much below par. I wish you to write just how you both feel in the matter, for I would like you to do that which will be for the best for you. ” On December 18,1870, Mrs. Selleck, the wife of. plaintiff in error, wrote to Mrs. Wood a letter, in which she said, among other things: “You ask for my opinion in regard to the use of your bonds. * * * I am grateful to you for your assistance, and wish you to be entirely'at ease in regard to security. I had told Mr. Selleck that if I paid one-half for the place, and took a deed for one-half, that I would like to leave my half unincumbered. * * *. Mr. Selleck wants to own one-half, which is all right if he can secure you satisfactorily on his half. * * * He says after he gets all fixed up * * * some change will come and upset us, and the result will be, foreclosed sale to pay you and your heirs. * . * * The house will be insured for $4000, and if it is burnt up you will be safe with half that amount, and one-half the lot, ” etc. To this letter Mrs. Wood replied, under date of December 23, 1870, saying, among other things: “I am afraid, dear sister, you misunderstood my feelings in regard to the bonds I left there last winter. I expected you would use them in a way most to your benefit. I never heard how matters stood in the payment of the house you have taken. When I asked security, it was more for your benefit than mine,—provided unforeseen misfortune overtook you. I never expect, nor do I want," any benefit from them, unless I should lose all I have the care of now. How, then, could any one suppose I would * * * foreclose, and force you to leave ? * * * I am * * * desirous that you retain possession of all that is yours, nor have I ever thought of your doing otherwise. Perhaps I did not explain as fully as I might my meaning in regard to sacrificing oh the bonds, but if it will be better for. you to do so, I have nothing to say against it. ”
    Mr. Selleck used one of these bonds in payment for work and materials in finishing a house, and sold the other two bonds, and applied the proceeds to his own use, and nothing further seems to have been done or said between him and Mrs. Wood during her life. Mrs. Wood died in Illinois, September 1, 1878, intestate, and the administrator of her estate,-after-adjusting the-same, reported the sum of about $5000 in his hands for distribution to her heirs. Her sole heirs were W. W. Selleck, (the plaintiff in error,) Polly Selleck, and Mrs. Sarah Chatfield, being her brother and two sisters.
    At this stage of affairs, the sisters (defendants in error) come into the probate court' as petitioners, - calling attention of the court to the above bond transaction, and ask that the plaintiff in error be held a debtor to the estate to'the amount of these ■ bonds, or in some other way charged with that amount) as a set-off in the distribution. Plaintiff in error, answering, claims he holds the proceeds of the bonds as a gift, and should not be charged therewith in the distribution. On this issue proofs were heard, and the probate court decided in favor of the petitioners, and rendered a judgment finding that plaintiff in error was justly indebted to the estate in a sum exceeding his proportionate share thereof, and directing the administrator to pay the net amount of the' moneys in his hands to the defendants in error, in equal parts. Plaintiff in error appealed to the circuit court, and there the cause was tried de novo, and the judgment of the county court was affirmed. This judgment was affirmed in the Appellate Court, and plaintiff in error brings the record here for review.
    Messrs. Hill & Dibell, for the plaintiff in error,
    con.tended, from the evidence, there was no advancement, but that the transaction was in fact a gift. •
    While parol evidence is not admissible to vary or contradict the terms of a written instrument, this rule does not apply where the original' contract was verbal and entire, and a part, only, was reduced to writing; nor does it exclude evidence of the circumstances surrounding the parties. 1 Greenleaf on Evidence, sec. 284 a.
    The subsequent statements and declarations of the deceased, both oral and-written, made against her own interest, are competent evidence against the petitioners. Wheeler v. Wheeler, 47 Vt. 637; Inot v. Finch, 1 Taunt. 139; 2 Sanders on Pleading and Evidence, 557; 1 Greenleaf on Evidence, sec. 189.
    Where money is payable on call, request or demand, and in all eases where indebitatus assunvpsit will lie, no demand is necessary before bringing suit, and the Statute of Limitations will run from the time the suit might have been brought. Angelí on Limitations, -sec. 95; 2‘Parsons on Contracts, (4th ed.) 370, 371; Hart’s Appeal, 32 Conn. 541; Hayward v. Gunn, 82 Ill. 385; Cagwin v. Ball & Co. 2 Bradw. 70.
    A note payable on demand is always due, and the statute begins to run as soon as the note is made. So with a receipt for money borrowed, whereby the borrower agrees to pay “whenever called upon to do so;” and the statute begins to run whenever the creditor could bring his action, and not when he knew he could. 2 Parsons on Contracts, (4th ed.) 372; Angelí on Limitations, sec. 95; Cagwin v. Ball & Co. 2 Bradw. 70.
    The limitation laws in force when a cause of action accrues will govern and control in a suit upon such cause of action, except in cases arising under section 20. Busby v. Spencer, 25 Ill. 216; Dickson v. Chicago, Burlington and Quincy R. R. Co. 77 id. 331; Hyman v. Bayne, 83 id. 256.
    Mr. G. D. A. Parks, for the defendants in error:
    The instrument given by plaintiff in error was really an agreement. It was a receipt only in the sense that a promissory note which says “for value received, ” is a receipt, and can not be contradicted or varied by parol evidence. 1 Green-leaf on Evidence, sec. 305; Ludeke v. Sutherland, 87 Ill. 481; Andrus v. Mann, 92 id. 41; Doty v. Wilson, 47 N. Y. 583.
    The continued possession of any evidence of indebtedness is prima, facie or presumptive evidence that the holder does not intend to release the liability which it imports. 2 Parsons on Bills and Notes, 480; Doty v. Wilson, 47 N. Y. 583 ; Keyes v. Fuller, 9 Bradw. 528; Jewett v. Cook, 81 Ill. 260.
    This transaction answers the tests of a commodatum or gratuitous loan in the classification of bailments. (Story on Bailments, secs. 225, 227, 231, 257, 261.) In such eases a demand is necessary before suit will lie. Ibid. secs. 257, 107, 120, 258; 2 Parsons on Contracts, 182; Gilbert v. Iron Manf. Co. 11 Wend. 626.
    . A commodatum loan is, ip>so facto, revoked by the death of either party, (Story on Bailments, see. 277,) hence the Statute of Limitations did not commence to run until after the death of Mrs. Wood.
   Mr. Justice Dickey

delivered the opinion of the Court:

It is exceedingly clear that when the bonds were first delivered it was not as an absolute gift. The express promise, made in writing by plaintiff in error, to deliver the bonds to Mrs. Wood “whenever called for, ” is a written contract, the terms and conditions of which can not be lawfully varied or modified by parol proof, and that undertaking is entirely incompatible with the idea of an absolute gift. It may be that it was then her intention and expectation that the bonds never should be called for by her, but it is equally plain that she intended to retain her right to call for them if circumstances should make that course desirable to her. It is not material what may have been her motives for this action. It may be-she intended all this practically as an advancement, or as a gift, but she did not choose to give it that form, or make it, either. It may be she took this course merely for the purpose of protecting the bonds and their proceeds from-creditors of her brother, and of preserving the same for his enjoyment. This does not; affect the question, unless she chose to make the same an absolute gift or an advancement. The burden of proof rests upon the plaintiff in error to show that what was at first a loan was afterwards changed into an absolute gift. While there are some proofs tending to support that conclusion', there is also proof tending strongly to the conclusion that she never did relinquish, or intend to relinquish, her right to demand these bonds, or the proceeds thereof. This is an issue of fact which it is not our province to determine. We must treat the case upon the hypothesis that the loan, in fact, was never converted into an absolute gift. But if it were our province to -weigh the evidence, the proofs fail to convince-us that either these bonds or their proceeds were ever donated to plaintiff in error as an absolute gift.

But it is contended that the liability of- plaintiff in error, if any, after their conversion to his own use, accrued in 18T1, when the bonds were disposed of by him, with her consent, and no" longer rested upon a written contract, and hence the right to sue for the same was barred by the Statute of Limitations; and the case is likened to that of a promissory note payable upon demand, against which it is said the statute begins to run at or soon after its date, and this without any actual demand. The cases are not alike. It was clearly,in this ease, the agreement of the parties that no duty to return the money or the bonds should arise until an actual demand for the same should be made. Under the original .contract no action could have been maintained by Mrs. Wood for these bonds without an actual demand; and the proofs tend to show, and we think do show, that the money for the bonds was not payable until actually demanded. The' permission by Mrs. Wood to plaintiff in error to retain this' money continued until the time of her death, and the lapse of time since her death had not been sufficient to bar the claim.

The propositions of law refused by the circuit court, relating to the subject of advancements, had no application to the ease, for no evidence in the case tended to establish the case of an advancement.

The judgment of the Appellate Court is therefore affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Craig Mr. Justice Scott : Mr. Justice Walker :

license: Public Domain

text:
    Eliza Heacock v. William Lubuke.

      Filed at Ottawa May 10, 1883

      Rehearing denied September Term, 1883.

    1. Btjbnt Recobds act—petitioner need not be in possession. Under what is known as the “Burnt Records act, ” the petition to establish title need not show that the petitioner is in possession of the land, or that it is vacant and unoccupied, as is required on bill to quiet title. Section 16 of that act expressly authorizes the petitioner to make all persons in possession, or claiming an interest in the land, parties defendant, thus creating a clear and marked distinction between a case under that act and a bill to quiet title.
    2. Same—act not unconstitutional. The Burnt Records act is not unconstitutional, as depriving the parties of a trial by jury, but is a valid law.
    3. Evidence—sufficiency—to establish the execution of a deed. In a proceeding under the Burnt Records act to establish title to land under a deed destroyed by fire, the petitioner proved by a clerk of an abstract firm, whose business it was daily to make abstracts of all deeds filed for record in the county, that a warranty deed from the defendants, husband and wife, to the party under whom petitioner claimed title, No. 113,008, was filed for record September 16, 1871, consideration $500, giving a description of the land conveyed; that the deed was dated September 14, 1871, but that there was an error in the year, being 1801, and that the deed was properly acknowl-, edged. He testified from the minutes he made the next day after the deed was filed. A partner of the grantee also testified that the husband obtained a loan of the grantee, and gave this deed as security for the money, and that he thought the wife also executed it in his office and in his presence, and that the deed was then taken to an officer to be acknowledged. Petitioner also put in evidence an abstract of title made for the defendants in due course of business, and which was in their possession. This showed the deed dated September 14, 1801, recorded September 16, 1871, from the defenclants to the same grantee: Held, that this evidence was sufficient to establish the execution of the deed, though the defendants positively denied that they ever executed and acknowledged the same.

      i. Same—to overcome certificate of acknowledgment of deed. In the absence of proof of fraud and collusion on the part of the officer taking and certifying the acknowledgment of a deed, the officer’s certificate of the acknowledgment, in proper form, must prevail over the unsupported testimony of the party grantor that the same is false and forged.
    5. Limitation—under act of1835. The Limitation law of 1835 requires an actual residence on the land for the period of seven years before suit is brought, to be a bar.
    6. Samp.—under act of 1839. Possession and payment of taxes for seven successive years, under the act of 1839, without color of title, creates no bar; and where a party having a deed which is both title and color of title, makes a conveyance, he parts with his color of title, and stands as if he had never had any, and possession and payment of taxes thereafter for seven years, will .not avail him, for want of color of title.
    Writ of Error to the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    Mr. J. Burnham, for the plaintiff in error:
    This case does not fall within the purview of the Burnt Becords act. The scope of that act is fixed by its title, “to remedy the evils consequent upon the destruction of public records by fire or otherwise.” It can not be enlarged by liberality of construction, nor by anything contained in the act itself. Its limit is fixed by organic law. Const. 1870, art. 4, sec. 13.
    The evils to be remedied were the loss of the evidence afforded by the records, and the uncertainty of titles resulting therefrom. There are but two ways possible to remedy such evils,—the restoration of such records, as far as practicable, and making the next best evidence admissible in their stead.
    Anything in that act purporting to give courts of chancery jurisdiction in cases which, before its passage, were not within their jurisdiction, is absolutely void, and the merest surplusage. If such proceedings as this do fall within the purview of the act, the act is unconstitutional, as depriving parties of the right to trial by jury. Const. 1870, art. 2, sen. 5.
    The complainant was not in possession, and hence he can not have an adverse title adjudged bad and removed as a cloud. Oakley v. Hurlbut, 100 Ill. 204; Hardin v. Jones, 86 id. 313; Gage v. Abbott, 99 id. 366; Whitney v. Stevens, 77 id. 585; Comstock v. Henneberry, 66 id. 212.
    The petition showed that the defendant was in possession claiming in fee; therefore, a court of chancery was not the proper forum. Hamilton v. Quimby, 46 Ill. 90; Green v. Spring, 43 id. 280.
    Not every case of accident will justify the intervention of a court of equity. 1 Story’s Eq. Jur. sec. 78; Fisher v. Sievres, 65 Ill. 99; Patton et al. v. Campbell, 70 id. 72.
    A defence was shown under the Limitation law. Actual residence upon the land all the time is not necessary to make possession under the statute. Russell v. Mandell, 73 Ill. 136.
    Mr. E. A. Otis, for the defendant in error:
    The certificate of the acknowledgment of a deed made in due form must prevail over the unsupported testimony of the grantor. Russell v. Baptist Theological Union, 73 Ill. 337; Canal and Dock Co. v. Russell, 68 id. 426; Kerr v. Russell, 69 id. 669; Tunison v. Chamblin, 88 id. 378; Marston v. Brittenham, 76 id. 611.
    The declarations of a grantor, made after a sale of the property, can not be received to impeach or affect the title of his grantee or those claiming under him. Gridley v. Bingham, 51 Ill. 153.
    The act under which this proceeding was had is constitutional. Bertrand v. Taylor, 87 Ill. 235.
    This act, unlike the law for bills purely to remove clouds oh titles, provides that parties in possession shall be made defendants. Whether, in the absence of such a statute, a court of chancery would have power to restore a title, need not he considered. In Robinson v. Ferguson, 78 Ill. 538, it was held that the court had power to decree in favor of the better title, and this case was followed in Mulvey v. Gibbons, 87 Ill. 367, and Garrick v. Chamberlain, 97 id. 620.
    The law is not invalid as depriving the plaintiff -in error of •his right to trial by jury, for, as held' in Ward v. Farwell, 97 Ill. 593, that right does not apply to cases where equitable jurisdiction may he created.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a petition brought by William Lubuke in the Superior Court of Cook county, on the 6th day of March, 1879, under what is knowmas the “Burnt Records act,” to establish title to certain lands in Cook county which he claimed to own in fee. Eliza Heacock, her husband, William 0. Heacock, and others,- were made defendants to the proceeding. The petition averred that in July, 1870, Eliza Heacock became seized of an undivided three-fourths of the premises, and that William 0. Heacock became seized of an undivided one-fourth of the premises; that said parties derived title through a regular and connected chain of deeds, from the United States down to themselves. It is also alleged that on the 12th day of: July, 1871, William 0. and Eliza Heacock executed a contract, by which they agreed to convey the premises to Susan W. Sinclair, and the latter, on July 22, 1871, executed her contract to reconvey to Eliza Heacock and her husband an undivided one-half of the premises upon the payment of $200 within six months. It is also alleged that on the 14th day of September, 1871, Eliza Heacock and William 0. Heacock, by deed of that date, conveyed the’land to Susan W. Sinclair, from whom petitioner, under a regular chain of conveyances, derived title. Plaintiff in error interposed a demurrer to the petition, which was overruled by the court. She then filed an answer, under oath, in which she denied the execution and acknowledgment of the alleged deed of September, 1871, and claimeil the benefit of the Statute of Limitations of seven years under title deducible of recard, also possession and payment of taxes for seven successive years under color of title.

Before proceeding to the consideration of the main question in the case, which involves the merits of the controversy, it may be necessary to notice some of the technical questions raised on the argument.

It, is said that this was a proceeding in the nature of a bill to quiet title, and as complainant was not in possession, the bill would not lie. This court has held, in a number of cases, that courts of chancery will '-not interfere to remove a cloud upon .the title of a complainant unless the complainant is in the lawful possession of the land, or unless the land is unoccupied ; but those cases have no bearing whatever on a case of this character. This petition was filed under chapter 116 of the Revised Statutes of 1874, and was fully warranted by the terms of the statute. Section 16 of the act expressly authorizes the petitioner to make all parties in possession or claiming an interest in the land, parties defendant to the petition, thus creating a clear and marked distinction between a case of this character and a bill to quiet title, where the complainant must be in possession or the land vacant before a court of chancery will entertain a bill.

But it is said the Burnt Records act is unconstitutional, as it in effect deprives a party of the right of trial by jury. Since the passage of the act its validity has been sustained in a number of cases, and in Bertrand v. Taylor, 87 Ill. 235, the law was held to be constitutional. It will not be necessary, therefore, to enter upon a discussion of that question here.

This brings us to the main question in the case, and that is, whether Eliza Heacock and William 0. Heacock executed the alleged deed of the premises to Susan W. Sinclair' on the 14th day of September, 1871. The grantees both testify unhesitatingly that they never executed or acknowledged the deed. In addition to this they proved that Sinclair sent a messenger to Eliza Heaeock in September, 1873, to see if the land could be purchased. It was also proven that Mrs. Heacock continued to claim the land after the alleged sale, and paid the taxes thereon from year to year. This, in substance, is the evidence relied upon to overcome the proof of conveyance made by defendant in error.

The deed of September 14, 1871, as well as the record of the deed, were destroyed by fire, and could not be produced by the complainant in the bill; but he did produce several witnesses who saw the deed and testify to its contents. Lange, who, in 1871, was entry clerk for Jones & Sellers, an abstract firm in Chicago, whose business it was to take minutes of all instruments filed in the recorder’s office each day, testified that a warranty deed from Eliza Heaeock and her husband to Susan W. Sinclair, No. 113,608, was filed for record September 16,1871; consideration, $500; land conveyed, northeast quarter of north-west quarter of section 4, township 37, range 12 east, in Cook county, Illinois. The deed was dated September 14, 1871, but there was an error in the year, being 1801. The minutes made by the witness contained nothing in regard to acknowledgment, as his practice was to make no mention of the acknowledgment unless it was in some way defective. This witness seems to be entirely disinterested, and testifies from memoranda which he made from the deed itself the next day after it was filed for record. Tompkins, wdio was at the time of this transaction a partner of Sinclair, testifies, in substance, that Heacock made a loan of money of Sinclair, and gave the deed as security for the payment of the money; that he thinks the deed was executed by Mrs. Heacock in his presence, in his office, and subsequently taken to an officer to be acknowledged. Complainant also put in evidence an abstract of title which was made for Heacock in due course of business, and was in his possession. This showed a deed dated September 14, 1S01, recorded September 16, 1871; Eliza Heacock, and William 0. Heacock, her husband, to Susan W. Sinclair; conveys the land in controversy.

The evidence of the two witnesses who saw the deed, in connection with this abstract of title, in our judgment is ample to establish the execution of the deed of September 14, 1871. The first witness alluded to above saw the deed, and testifies that it was in due form, conveyed the land, and was properly acknowledged. Can a deed thus executed and acknowledged be overcome by the unsupported testimony of the grantors that they never executed the instrument ? In Lickmon v. Harding, 65 Ill. 505, this court held: “In the absence of proof of fraud and collusion on the part of the officer taking and certifying the acknowledgment of a deed, the officer’s certificate of the acknowledgment, in proper form, must prevail over the unsupported testimony of the party grantor that the same was false and forged.” This has been followed by a number of other cases where the same doctrine has been announced. Canal and Dock Co. v. Russell, 68 Ill. 426; Kerr v. Russell, 69 id. 669; Russell v. The Baptist Theological Union, 73 id. 337; Marston v. Brittenham, 76 id. 611; Tunison v. Chamblin, 88 id. 378.

The authorities cited, in our judgment, settle the question, beyond dispute, that the testimony of plaintiff in error was not sufficient to overcome the proof of the execution of the deed. If a deed conveying lands could be impeached by the testimony of the grantor alone, titles to real property would be insecure, and consequences of the most disastrous chai’acter might, and doubtless would, result.

It is, however, claimed that plaintiff in error was entitled to protection under the limitation laws. The proof does not establish actual residence on the land for a period of seven years before suit was brought, which the act of 1835 requires to establish the bar. As to the defence under the act of 1839, if plaintiff in error was in possession of the premises for seven successive years under color of title made in good faith, and paid all taxes assessed on the premises during that period, they would be in position to claim the benefit of the statute. The testimony may be regarded as sufficient to establish seven years’ possession, as it is quite plain, from the evidence, that Eliza Heacock was in possession at the time she sold to plaintiff in error, and that she held that possession until 1875, when she moved upon the premises, and remained there until suit brought. As to the payment of taxes for seven successive years as to the undivided half of the land, we think the proof sufficient. Mrs. Heacock testified that she paid the taxes since she bought the land, and she produced tax receipts for several years, and testified that the others had been destroyed. But the trouble in regard to the defence, under the statute, is the want of color of title in the defendant. Possession and payment of taxes, to be of any avail, must be under color of title. It is true that the deeds under which plaintiff in error acquired title in 1870 were both title and color of title, but when they executed the deed to Susan W. Sinclair, September 14, 1871, that color of title was conveyed, and after that they had no color of title to the premises. After they executed the deed they occupied the same position in regard to the premises that they would have occupied had they never received a deed of the property, and where a party goes into possession of lands under no deed or paper title whatever, possession and payment of taxes, however long continued, would not ripen into a bar under the act of 1839. The party claiming under the act must have color of title, and where they have deeded the premises, no color of title can exist in such party. They can not go back and set up a claim of color under the deed made to them, after they have conveyed the premises. We therefore perceive no tenable ground on which plaintiff in error can rely upon either the act of 1835 or 1839.

The judgment will he affirmed.

Judgment affirmed.

Mr. Justice Scott :

I do not concur in this opinion.

Mr. Justice Walker :

I concur in affirming the decree.

Inasmuch as a jury was not demanded on the hearing, the question of whether a jury should have been allowed does not arise in the case.


author: Mr. Justice Walker

text:
    Bradley D. Greenman et al. v. Sarah A. Greenman.

      Filed at Ottawa September 28, 1883.

    1. Limitations—in equity. While the Statute of Limitations does not strictly apply to cases in equity, still equity generally follows the law, and denominates the period the statute will bar, at law, laches, that renders a demand stale.
    2. Same—estoppel by fraud. The defendant in a suit in chancery to set aside an alleged fraudulent conveyance, and the fraud being established, will be estopped to set up laches as a defence..
    3. Homestead—in wife, not created by a verbal promise of Imsband to live on lot. A mere verbal promise of a husband to his wife, while temporarily residing in another State, that they would return and use a house and lot of the former in this State as a homestead, will not create or pass to the wife a right to homestead therein, when they fail to occupy the same as a residence.
    4. Contract—between husband and wife to divide rents of his property, not valid. The mere naked verbal promise of a husband to his wife to give her one-half of the rents of his real estate, without any consideration, does not create a binding contract, or confer upon the wife the right to sue for and recover one-half of such rents, even in equity.

      S. Ghanceby—distribution of proceeds of sale—under creditor’s bill. Where a receiver is appointed, under a creditor’s bill, to receive and collect rents, under an allegation of the insolvency of the debtor, if this is denied in the answer such rents in the hands of the receiver can not be applied on the creditor’s judgment without proof of the debtor’s insolvency, and that the property subject to levy and sale is not sufficient to satisfy the debt or judgment. In the absence of such proof the court should order the receiver to pay such rents to the defendant—the owner of the land.
    Writ of Error to the Appellate Court for the Second District;—heard in.that court on appeal from the Circuit Court of Knox county; the Hon. Arthur A. Smith, Judge, presiding.
    Mr. L. Douglass, for the plaintiffs in error s
    The fact that defendant in error took no steps to set aside the deed, and failed to give any notice of her rights until she filed her bill, ten years after the date of the deed, is better evidence 'of its genuineness than the testimony of herself and Pond, depending on their bare recollections. McPherson v. Sanborn, 88 Ill. 152.
    The defence of limitation under the act of 1835 was good, as it shows a title dedueible of record from the United States. We need not to have gone back to the deed from the sheriff to A. C. Mason under the execution, which would have furnished such a title as the statute requires. Collins v. Smith, 18 Ill. 160; Martin v. Judd, 81 id. 488.
    In this State the effect of the limitation is to take away the right of entry and the right Of action. Newland v. Marsh, 19 Ill. 383; Hinchman v. Whetstone, 23 id. 185; Jandon v. McDowell, 56 id. 53.
    Fraud is no answer to the limitation of 1835. Castner v. Walrod, 83 Ill. 175.
    Under section 8 of the Limitation law of 1839, where there is no proof showing that the color of title was acquired in bad faith, which means in and by fraud, the court will hold it was acquired in good faith. Coleman v. Billings, 89 Ill. 190; McCagg v. Heacock, 42 id. 157; Rawson v. Fox, 65 id. 200; McCagg v. Heacock, 34 id. 476.
    Even if William E. Greenman practiced a fraud on complainant in obtaining her signature to the deed, it was just .as much color of title without her signature as with it. Limitation bars equitable relief, the same as at law. Hancock v. Harper, 86 Ill. 445; Manning v. Warren, 17 id. 267; 2 Story’s Eq. Jur. sec. 1520; Kane v. Bloodgood, 7 Johns. Ch. 89; Carpenter v. Carpenter, 70 Ill. 457; Wilhelm v. Sayler, Exr. 32 Md. 151; Quayle v. Guild, 91 Ill. 38; Sloan v. Graham, 85 id. 26; Castner v. Walrod, 83 id. 174; Wingate v. Pool, 25 id. 102.
    Possession was surrendered, and if the deed was not her deed there was no relinquishment of homestead, but a surrender of possession had that effect, even if there was no release. Hall v. Fullerton, 69 Ill. 451; Eldridge v. Pierce, 90 id. 480.
    ■Messrs. McKenzie & Calkins, for the defendant in error:
    The evidence in this case comes clearly within the rule in regard to the impeachment of certificates of acknowledgment of deeds. It has been established by a clear preponderance of evidence. Meyers v. Parks, 95 Ill. 408; Lowell v. Wren, 80 id. 238.
    The wife can maintain bill for the purpose of holding or recovering a homestead, the object being to protect the family in a home. Allen v. Hawley, 66 Ill. 169.
    The Homestead act was designed for the benefit of the wife and children. Cassell v. Ross, 33 Ill. 244; Haskins v. Litchfield, 31 id. 137.
    The policy and object of the Homestead act seem to regard her after the divorce, for this purpose, as a widow and the head of a family. Vanzant v. Vanzant, 23 Ill. 536.
    If the husband induced the wife to go to Michigan temporarily, and with the promise that they would return and live upon this property, and it was her intention to return, it was no abandonment of the homestead. Orman v. Orman, 26 Iowa, 361; Kenley v. Hudelson, 99 Ill. 493; Henson v. Moore, 104 id. 403; White v. Plummer, 96 id. 395; Mills v. Van Boskink, 32 Texas, 360; Henderson v. Ford, 46 id. 627; Clipperly et al. v. Rhodes, 53 Ill. 346; Kitchell v. Burgwin, 21 id. 45; McMillanus v. Warner, 38 Texas, 410; Wiggins v. Chance, 54 Ill. 175; Howard v. Logan, 81 id. 383; Sheppard V. Cassidy, 20 Texas, 24.
    The doctrine of adverse possession is to be taken strictly. It must be sustained by clear and positive proof. It must be open and notorious, notifying everybody that one is on the land claiming it as his own, in person or by tenant. It can not be secret, and answer the purpose of notoriety to adverse possession. Laflin v. Harrington 16 Ill. 301; Jackson v. Berner, 48 id. 203; Busch v. Huston, 75 id. 343.
    This question of good faith is one of fact, and must receive a practical, common-sense construction. Winter v. Haines, 84 Ill. 583; Hardin v. Crate, 78 id. 533.
   Mr. Justice Walker

delivered the opinion of the Court:

This was a bill filed in the Knox circuit court, by defendant in error, to establish a right of homestead in a lot of ground, and to remove conveyances of the lot as fraudulent, and as obstructions to its sale on a judgment at law. She claims that she and her husband entered into possession of the property, and occupied it as a homestead until they went, temporarily, to Michigan; that whilst so in possession, William R. Greenman, then her husband, forged a deed from him and herself, conveying the property to his son George H. Greenman, who afterwards conveyed it to Bradley D., another son, and he conveyed to Sidney Rogers, without any consideration. Subsequently she filed a supplemental bill, alleging the recovery of a judgment against William R. Greenman for the sum of $2846.39, which was obtained in a suit in attachment, in which this land was levied on; that he was insolvent, and prayed that a receiver be appointed, and that the interest of defendant William R. Greenman be determined, and subjected to the payment of her judgment. It appears that after they had remained some time in Michigan, she filed a bill for a divorce from her husband, William R. Greenman, which was granted, and she was decreed alimony, and the custody of their child. On a hearing in the circuit court she was decreed a homestead in the property, half of the rents in the hands of the receiver, and the other half was required to be applied as a payment on the judgment, and to have the possession of the property, and that it be sold to satisfy the judgment, but subject to her homestead rights. The case is brought to this court to reverse that decree.

That there was a plan deliberately adopted by William R. Greenman, aided and assisted by his sons, to defraud defendant in error by hindering her in the collection of alimony, seems to be established beyond dispute. He agreed, on going to Michigan, that the stay should be temporary,—only until a farm was put in repair,—and they would then return to and live in Galesburg. This he never did. He also agreed that they would divide the rents of the house and lot in controversy, but they never did. The evidence clearly establishes that all the conveyances were fictitious, and without consideration. At the time each of these conveyances was made he was the only active person in their consummation, and unsought and unknown to Rogers he brought the deed from his son Bradley, and wished Rogers to execute a mortgage on the property to secure a fictitious sum as a consideration for the lot, but Rogers refused; but he nevertheless had the deed recorded, and Rogers swears that he paid, or agreed to pay, nothing for the lot. Notwithstanding these pretended sales, William R. was all the time in receipt of the rents, and controlling the property, and speaking of it as his own, and, so far as the evidence discloses, none of the pretended grantees ever exercised any-control over the .property, or claimed to own it. When William R. Greenman offered the deed to Rogers, and when the latter refused to sign a mortgage, Greenman told him to take the property, rent it, and sell it if he could. Rogers paid nothing, but he, at Greenman’s request, entered into an agreement to hold, rent and sell the property, if he could, for Bradley D. Green-man. Thus at the instance of William R. Greenman, who claimed to be his son’s agent, Rogers declared a trust, but, at the same time, Greenman declared that he placed the title in Rogers because he‘believed it would be -more safe. The evidence satisfactorily shows that the conveyance'to George H. Greenman was fraudulent; and without a corisideration being paid for the lot. The consideration named was $ 1000, as stated in the deed, and George, it is claimed, gave his note for the amount, when the evidence shows that he was without means, and it does not appear he had the slightest use for the property. The tenants remained in the property without any change, the father still collecting or controlling the rents, as he claims, as agent for George, but George doing or saying nothing in reference to the property. It remained to all appearances the same as it was before.

It is beyond belief, from the evidence before us, that this could have been a bona fide sale. It is true that the father and son swear it was, but their version of the matter is so incredible that it is difficult to give it credence, if it had not been opposed by the attending circumstances and other opposing testimony. The evidence proves the same of Bradley D. Greenman’s purchase from his brother George. He had no surplus means, nor does he show any reason for the purchase. On the contrary, he was constantly importuning his father for money to enable him to pay a considerable sum of money he owed on a farm he had purchased. Having no means, and being pressed for means to pay for and acquire title to his farm, it is incredible that he would further involve himself by purchasing this property. Nor is any reason shown why he should have conveyed to Sidney Rogers, and taken from him an agreement to rent or sell it, if he could. On the contrary, his father stated at the time that he had it so conve3red because he considered it more safe. Safer for whom? Surely not for Bradley, because the title stood in him, and by placing it in Rogers, without consideration, it could be no safer to him. But the property, if it belonged in fact to William R. Greemnan, might be safer to him, as the written declaration of trust in favor of Bradley was delivered to the father, and there is no evidence which we have been able to find that he ever delivered it to Bradley. William R. seems to have been in a position, if the property was sold, to receive the money, destroy the declaration of trust, and appropriate the price to his own use. Had it assumed the form of ordinary transactions, Bradley, the owner, would have given Rogers a power of attorney to sell and convey, or to have authorized him to sell, and for Bradley to have made the conveyance when a sale was made. It seems that William R. at all times retained the power to sell or have a sale made, and appropriate the money to his own use; and about the time his wife commenced her suit for a divorce, Rogers advised him to let his wife have the house and settle the matter, and asked him how he could prevent his wife from recovering .alimony, and he replied he “would fix that.” Neither of the sons seems to have given any attention to the property, but the father continued to act as owner, in its management, in receiving and ordering the disposal of the rents, and in making repairs. The sons acted with an incomprehensible indifference in the matter, if they were owners. We are unable to believe they ever, in fact, were,—that the whole was a contrivance to defraud defendant in error, by preventing her from collecting any alimony that might be allowed her on granting her a divorce. All the evidence,— even with the explanations given by the Greenmans, father and sons,—points unerringly to that conclusion. We find it impossible to believe these sales were bona fide, but are forced to the conclusion that they were all conceived and earned out with fraud and covin, and that the property should be subjected to the satisfaction of the judgment for alimony.

But to obviate that effect, it is claimed that the rights of defendant in error are barred by the statutes of limitation of 1835 and 1839. Title deducible of record from the United States government, and actual possession for seven years, are claimed to have been proved; also, claim and color of title, and possession and payment of taxes for seven years on the property. The questions of limitation, under these statutes, have heretofore related to adverse titles, and not as to fraudulent grantees combined or acting together to defraud creditors or persons holding legal demands. The statute was not made, nor was it ever designed to be used, for such iniquitous purposes. It was made to promote the great natural principles of justice, and not to promote and protect fraud and iniquity. Thus it is seen there was not laches. The Statute of Limitations does not strictly apply to cases in equity, but equity generally follows the law, and denominates the period that the statute requires to bar an. action, laches, that renders a demand stale.' But the fact that plaintiff in error William R. Greenman, and his sons, were guilty of fraud, estopped them from claiming a bar to the suit, as the fraud precluded him or his fraudulent grantees from relying on laches as a defence in equity. A mere verbal promise of his, that he would return, and they would use the lot as a homestead, could not create or pass to her a right to homestead. Nor did his- mere verbal promise to divide the rents and profits create a contract by which she .could sue and recover them. The mere naked verbal promise, without any consideration, can not confer such a right when made by a husband to his wife. The land belonged to him. The conveyance by Mrs. Hendricks to plaintiff in error and defendant in error, gave to the latter no interest in the property, because she had no title to convey. It neither gave her a homestead right nor the right to participate in the rents. It was therefore error to decree her homestead or rents under that deed. If it could be allowed her to claim homestead rights because her husband owned the property, she, by her long continued and present absence, forfeited the right. Nor did his promise, when they went to Miehigafi, to return and occupy the premises as a homestead, confer the right, .and we have seen that the promise to divide the rents did not authorize her to participate in them. The court below therefore erred in decreeing her homestead in the premises, and possession thereof, and also in decreeing that she was entitled to one-half of the rents in the hands of the receiver, or otherwise.

But it remains to determine what disposition shall be made of the rents in the hands of the receiver. Inasmuch as it is, a fund in the hands of the court, it must be disposed of by order of the court. Shall it be paid to plaintiff in error William R. Greenman, as the owner, in fact, of the property, or Bradley D., the apparent owner, or shall it be applied towards the payment of the judgment? The bill alleges that William R. Greenman is insolvent, and the property is insufficient to pay the judgment. This allegation is denied by the answers. Although the fund is in the hands of the court, still, to make it proper to be applied as a payment on the judgment, it should have appeared that the judgment could not be otherwise satisfied. This is not shown. For aught that appears this property may be ample to satisfy the judgment, and Greenman may be abundantly solvent. The court should have decreed the payment of the rents to him. But in so far as the decree finds Mrs. Greenman holds a homestead title in the property, and is entitled to its possession, and that she is entitled, in her own right, to one-half of the rents, the decree in that respect is reversed, and it is in all things else affirmed. It is, however, decreed that each party pay one-half of the costs of this court.

Decree modified.


author: Mr. Justice Dickey

text:
    George W. Cothran v. J. Alder Ellis et al.

      Filed at Ottawa September 24, 1883.

    1. Custom—lehen presumed to be known. A party dealing in a particular market is presumed to know all the customs of such market bearing upon the transaction in which he is engaged.
    2. Commission merchant—buying for customer “for future delivery” —must sell when directed. Where a broker or commission merchant purchases grain for future delivery, in his own name, for a customer, he is bound to obey a direction of the customer, his principal, to sell the same at a given time, or terminate his agency, if the character of the transaction be such as to render it practicable so to do, by putting his contract of purchase in such shape that it may be transferred, and transfer the same to his principal; and if he fails in this, and loss is thereby incurred, he can not recover of his principal for commissions, and money advanced, but the latter may recover of him whatever damages he may have sustained by the neglect to sell when ordered. If the broker makes contracts of purchase in such manner that they can not practically be transferred to his principal, he, by necessary implication, undertakes to sell when ordered.
    3. Same—measure of damages on refusal to sell when ordered by Ms principal. Where a broker or commission man purchases in his own name grain for his principal, to be delivered at a future day, and the principal, before the grain is delivered, directs him to sell the same at a certain price then current in the market, for delivery on the day named in the original contract of purchase, and the broker refuses and neglects to make such sale when he might have done so, and a loss occurs, the measure of his principal’s damage will be the difference between the price at which the grain was purchased and the price at which the broker was directed to sell it, less his commissions and other proper charges. In such case the principal is not bound to go on the market and sell “short” an equivalent amount of grain for delivery at the same time of the other grain.

      4. Practice—proposition of law on trial by court. Where a proposition of law, correct in principle, upon the defendant’s hypothesis, there being evidence on which to base it, is asked, the fact that the plaintiff has evidence tending to avoid and destroy its application affords no ground for its refusal. If there is such evidence, the plaintiff should ask a declaration of the law on his theory in a separate proposition, or as an accompaniment to that of the defendant.
    Appeal from the Appellate Court for the Eirst District;—. heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    ,Mr. George W. Cothran, pro se, and Mr. John N. Jewett, for the appellant, after stating • and commenting upon the evidence in extenso, made the following among other points of law:
    Commission men aré the agents of the parties dealing through them. Ewell’s. Eyans on Agency, 3; Story on Agency, sec. 33.
    In the absence of 'express stipulation to the contrary, an agent is bound to obey instructions, or, as between himself and his principal, to bear the consequences of his refusal. Story on Agency, sec. 3; Ewell’s Evans on Agency, sec. 1, p. 212.
    To bind appellant with any rule or custom of traíe, it should appear that the parties dealt with each other upon the basis of the same; or if such custom was waived, then, to hold appellant to the observance of the same, he was entitled to reasonable notice.
    The court erred in refusing to allow the several propositions asked, and, aside from their sufficiency, the merits of the case are with the appellant.
    Messrs. Washburne & Bobbins, for the appellees, after stating and commenting upon the facts at some length, made the following among other points:
    The duty of agents to obey the instructions of their principals arises only from the express or implied agreement of the parties. Story on Agency, sec. 189.

      Where an agent has made advances, relying on the goods for indemnity, the law will not compel him to part with them unless repaid his advances. Field v. Farrington, 10 Wall. 141; Pultney v. Keymer, 3 Esp. 182.
    A principal is bound, within a reasonable time after being informed of his agent’s disobedience to his instructions, to express his disapproval. He is not permitted to remain quiet and observe the subsequent course of the market, and then approve the agent’s acts, if they prove advantageous, or disapprove them, should they result in loss. Silence under such circumstances amounts to assent and ratification. Ward v. Warfield, 3 La. Ann. 471.
    The first, third and fourth propositions, if otherwise good, do not state properly the measure of damages. If a party willfully or negligently allows the damages to be enhanced, the increased loss justly falls on him. Hamilton v. McPherson, 28 N. Y. 72; Dobbins v. Duquid, 65 Ill. 467; Grindle v. Eastern Express Co. 67 Maine, 325; State v. Powell, 44 Mo. 439; Baker v. Drake, 53 N. Y. 217.
    It is well settled in this State, that a person who deals in a particular market must be taken to deal according to the usage or custom of that market, whether he knew of such custom or not. At least he is presumed to know of and deal with reference to the customs of the trade. Bailey v. Bensley, 87 Ill. 559; Lyon v. Culbertson, 83 id. 36; Corbett v. Underwood, id. 324.
   Mr. Justice Dickey

delivered the opinion of the Court:

This is an action of assumpsit, brought in the Superior Court of the county of Cook, by appellees, against appellant. Issues were formed on the general issue pleaded to the declaration, and replied to a plea of set-off. The cause was tried by the court, a jury being waived. The issues were found for plaintiffs, and judgment rendered against defendant for $2788.63, and costs. This judgment, on appeal by defendant, was affirmed in the Appellate Court, and from that judgment he appeals to this court. e

Appellees were commission merchants dealing on the board of trade, and this action is for commissions and money paid by them for appellant on losses incurred in certain speculations conducted by them for appellant, but in their own names. The counter claim of appellant is for money of his in their hands arising from former transactions} and for losses incurred, as he claims, by reason of appellees having, as he insists, wrongfully refused to obey his directions as his agents. The sole controversy in the case arises upon the latter proposition.

It is not our province to pass upon the weight of any evidence given in the case. The sole questions presented for our consideration arise upon the refusal of the trial court to approve, and hold to be the law, certain propositions presented for that purpose by the appellant, at the trial and after the close of the evidence. The bill of exceptions, after stating the close of the evidence, says:

“And thereupon the defendant, by his counsel, then and there asked the court to hold the following propositions of law, to-wit:

“1. The court is requested to hold, as matter of law applicable to this case, that agents are bound to obey the orders and instructions of their principals, and that commission men are the agents of the parties dealing through them. The agent can not rightfully charge against his principal losses occasioned by his refusal to execute the reasonable and practicable directions of his principal. And if the court believes, from the evidence in this case, that the plaintiffs, as agents of the said defendant, by his direction, and for his account and risk, in the months of December, 1881, and January, 1882, sold wheat and other merchandise upon the Chicago market for future delivery, and subsequently, for the account and risk of the said defendant, and upon his order, purchased wheat or other merchandise, also for future delivery, then, in the absence of an understanding or agreement to the contrary, said transactions were separate and distinct, and each of them was subject to the control and direction of the defendant, and the plaintiffs had no right, as against the defendant, whilst the said transactions were pending, (the time for delivery not having arrived in either case,) to close out said transactions, or either of them, or to offset the same against each other, upon their books, or otherwise, without, or in violation of, the directions of the defendant. And if the court finds, from the evidence, that the transactions of the defendant through the plaintiffs, as his agents, were as above stated, and further finds, from the evidence, that the plaintiffs neglected and refused to obey the reasonable and practicable directions of the defendant in respect to either or both of said transactions, and losses resulted by reason of such neglect and refusal, then, as between the plaintiffs and the defendant, such losses must be borne by the plaintiffs, and in addition thereto the defendant is entitled to have and recover of the plaintiffs such profits, if any, upon such transactions, or either of them, as the defendant would have made thereon if his directions had been carried out by said plaintiffs.

“2. Before any rule or custom of trade relating to the subject of margins between commission men and their principals can be applied to this case, it must be made’to appear, by the evidence, that the parties dealt with each other upon 'the basis of such rule or custom. And if the court believes, from the evidence, that the plaintiffs, in dealing with the defendant, waived the requirements of any rule or custom of trade which they might have reasonably insisted upon, the defendant can not be made liable to the plaintiffs, according to the provisions of such rule or custom, in respect to such dealings, until after reasonable notice that the provisions of such rule or custom would be insisted upon; and what reasonable notice in such case would be, is a question of fact, to be determined by the court under all the evidence in the case.

“3. If the court finds, from the evidence, that in the month of January, 1882, the defendant had purchased, through the plaintiffs, as his commission merchants or agents, 5000 bushels of wheat deliverable in February, 1882, and 90,000 bushels of wheat deliverable in March, 1882, and on or about January 25, 1882, ordered the plaintiffs to sell all of said wheal, the 90,000 deliverable in March at $1.36g- per bushel, and the 5000 bushels deliverable in February at the then current price on the market, the plaintiffs were bound to obey such order, if it could have been executed, with reasonable diligence, by actually selling such wheat on the market; and if the court further finds that they refused or neglected to obey such order, and the price of wheat deliverable in February and March declined on the market, and any loss was incurred in consequence of such refusal or neglect to obey such order, such loss must be borne by the plaintiffs, and they have no right to charge it to the defendant, and the defendant is entitled in this action to recover of the plaintiffs, as damages, the difference between the 'price at which said wheat was purchased and the price at which he directed the plaintiffs to sell it, less their commissions and other proper charges, if any, as his profits on the transaction ; and it is for the court to determine, from the evidence, the amount of such profits that the defendant is entitled to.

“4. If the court finds, from the evidence, that the defendant, in January, 1882, through the plaintiffs, as his commission merchants and agents, purchased 5000 bushels of wheat for February delivery, and 90,000 bushels of wheat for March delivery, or either of said quantities, and had money to his credit with the plaintiffs as margins to protect plaintiffs from liability to loss on account of such purchase, and if the plaintiffs called upon the defendant for a reasonable sum, in addition to the amount of his credit with them, to protect such purchase, and if the defendant neglected or refused to comply with such request, hut on the contrary, on or about the 25th of January, l'S82, ordered plaintiffs to sell said 90,-000 bushels of wheat for March delivery on the Chicago market, at $1.36^ per bushel, and the 5000 bushels of wheat for February delivery at the then current price on the Chicago market, and if the court further finds that they refused to obey defendant’s order, and did not go on the market and sell said wheat, and that such order could have been com-X>lied with by them within a reasonable time, then the plaintiffs, by neglecting or refusing to obey such order to sell, in legal effect converted such wheat to their own use, and the defendant is entitled, in this action, to recover of the x>lain-tiffs, as damages, the difference between the price at which said wheat was purchased and the' price at which plaintiffs were directed to sell it, less xdaintiffs’ commissions and other proper charges, if any; and the court will ascertain from the evidence, and determine, the amount of such damages.”

Which x>ropositions of law the court refused to hold, and to such refusal the defendant, by his counsel, then and there duly excepted.

No other propositions were approved or passed upon by the court relating to either of the questions presented here. There is evidencfe in the ease tending to xn’ove every hyx>othesis contained in each of these xrropositions.

The second proposition was x>roperly rejected. A x>arty dealing in a particular market is presumed to know all customs of that market bearing upon the transaction in question. Counsel- for appellees do not contend that the other prox>ositions in question are not sound as general legal x>roXiositions, or that any other propositions were approved or declared by the court covering the same ground or recognizing the same principles. Their contention is, that the first, third and fourth propositions “do not properly state the law applicable to the ■ facts of this ease. After full consideration of the suggestions made in support of this proposition, we can not give it our sanction.” They suggest that the duty of agents to obey the orders of principals arises from agreement between them, and can only apply to transactions in which the agent has agreed to act for his principal, and they suggest that in this case the law will not imply, from a consent of the broker to purchase, an additional agreement to act .as such agent in a subsequent transaction to sell. They concede that at the time of the purchase, or afterwards, these parties might have agreed that when appellant should wish to make contracts of sale of the wheat coming to him under the contracts of purchase, the appellees would act as his agents in making such contracts of sale. Their contention is, that the existence of such an agreement is an essential basis of the duty of the broker, and hence these three propositions were properly rejected, because “they assume the existence of such an agreement,” which is, as they contend, assuming the existence of a fact not stated as part of the hypothesis. This view we can not sanction. The very nature of this transaction necessarily implies the supposed fact, in the absence of other facts to repel the implication. The contract of purchase is in the name of the broker, and with a party unknown to the customer. It may be, a broker having made such a purchase, and wishing to terminate his agency, may do so by so declaring, and by putting his contract of purchase in such shape that it may be transferred to his customer, and b3r transferring the same to his principal. There is no evidence tending to show that appellees refused to continue the agency. The contract gives to the purchaser the right to demand the wheat in March, at the contract price. It is this right the broker held by contract, and was required to sell. That right, in the then state of the market, could have been sold at a premium of over $2000. This the broker, upon the hypothesis stated, refused to sell, and did not offer to turn over the same to his customer, so that he could sell the same. Erom the mode in which this business is done this may have been impracticable, and if so, the agency could not he regarded as ended until the contract of purchase was disposed of. It would be a monstrous doctrine to hold that a broker, having made such a purchase, could, at will, say to his customer, “I will not sell. ” This would place the customer at tbfe mercy of the broker. If the broker consented to make these contracts of purchase, and did make them in such manner that they could not practically be transferred to his principal, he, by necessary implication, undertook to sell when ordered.

Again, it is said that it appears from the evidence that the market was running against the customer on certain prior sales which had been made by appellees for appellant, and that, by the agreement of the parties, these purchases were made for the purpose of having a 2^'otection against losses on such sales. There, however, is evidence tending to prove an express agreement that each transaction should be treated as a separate transaction; and the first proposition is based upon the hypothesis that the transactions were separate. Upon this hypothesis, even if the appellant was in default in not putting up margins upon his “short” sales, this can in no way affect the transaction of their refusing to sell the subject of his purchases. The third and fourth propositions ought to have been qualified by a statement of the hypothesis that the contracts of purchase and the contracts of sale were separate transactions, and not combined, by the agreement of the parties. If it be margins on the previous “short” sales appellees wanted, obviously, obedience to appellant’s order to sell would have planed in their hands an increase of appellant’s margins, to an extent exceeding $2000.

Again, it is contended that these propositions were properly condemned, because, it is said, there is evidence tending to prove that appellant acquiesced in the-refusal of appellees to obey his directions. That might have been a good ground for a ruling upon the law on that hypothesis, but is not an appropriate objection to the propositions as asked. If that excuse were relied upon, appellees might have asked that the law should be so declared, either as a separate proposition, or as an accompaniment of that aske'd by appellant.

Again, it is said the measure of damages stated is not correct,—that appellant, to save himself, as far as possible, from damages to arise from appellees’ refusal to sell, was bound to go on the market himself and sell “short” an equivalent amount of wheat for February and March, and thus have made, by speculation, what he wished to save through a sale by appellees. Several eases are cited in, support of this position. The case upon which most reliance is placed is that of Baker v. Drake et al. 53 N. Y. 217. There, a broker, having bought and holding stocks for a customer, much in the same way in which appellees bought and held this wheat for appellant, sold the same in the market without authority from his principal. Upon notice of the sale the customer repudiated the sale, and demanded that the broker should restore the same, which the broker failed to do. At the trial the broker was held liable, and adjudged to pay, as damages, the difference between the amount actually realized upon the sale and the amount which would have been realized if sold at the highest price indicated by the market at any time between the sale and the trial. This judgment was reversed, and, we think, very properly. The adoption of that measure of damages necessarily presupposed that had the stock been restored when demanded, the customer would have had the sagacity to have ordered a sale on the day the market was at the highest point. In the ease at bar the question is very different. There is a fixed value when appellant ordered the sale, and there is a fixed amount to be deducted, which is the amount which appellees actually did realize for appellant when they actually did make a final disposition of this wheat contract, which was February 9 or 10. The measure of damages approved in Baker v. Drake, was the difference between the amount actually realized at the sale, made without authority, and the amount it would have cost to have restored the stock to the customer at the time when he demanded it, having the right to so demand the same. This seems to be entirely in harmony with the measure of damages laid down in these propositions, which the court refused to approve. In both eases the damages are ascertained by a comparison of the amount actually realized, with that which would have been realized at once had the lawful demand of the customer been obeyed. We find nothing wrong in the measure of damages.

The judgment is therefore reversed, and the cause remanded, that it may be sent to the Superior Court for a new trial.

Judgment reversed.


author: Per Cueiam:

text:
    Edward B. Lycan v. The People of the State of Illinois.

      Filed at Springfield October 1, 1883.

    1. Indictment—sufficiency of count for embezzlement. A count in an indictment charging that the defendant, as the agent of the prosecutor, by virtue of his employment, received moneys of the prosecutor, stating the amount, which he did feloniously, embezzle and fraudulently convert to his own use, with intent to steal the same, without the consent of the owner, is substantially good as a count for embezzlement, under the statute.
    2. Criminal practice—remarks of judge on the evidence. On the trial of one for the embezzlement of money alleged to have come into his hands on a sale of property by him, as agent of the prosecutor, where the evidence on the part of the People was not of a very satisfactory character, the defendant offered testimony to show, and tending to show, that he had bought the property of the prosecutor, the proceeds of which he was charged of having embezzled, and that the purchase was in good faith, and that he had paid for the same, after which the court remarked, in the hearing of the jury, “I am not satisfied with this,—let the defendant take the stand,” and then asked questions not entirely free from objection: Held, that the remark was clearly improper, and was calculated to prejudice the defence the accused was attempting to make.
    3. Whether a court is satisfied or not, is not a matter proper to be communicated to the jury in such a case. They should be left free to consider the evidence given by both parties, without any expression of opinion from the court.
    4. Practice—directing witnesses to be recalled. The court has the discretionary right, in the progress of a trial,—the exercise of which may tend to elicit the truth,—to direct that witnesses shall be recalled for further examination, or that other witnesses may be called to the stand to be examined; but the court ought not to give expression, in the hearing of the jury, as to its own views of the weight of any portion of the evidence.
    Writ oe Error to the Circuit Court of Peoria county; the Hon. John Burns, Judge, presiding.
    This was an indictment against the plaintiff in error, for embezzlement. The indictment is substantially as follows, omitting formal parts:

      First count: That Lycan, on, etc., “being then and there the agent of Ellen Wilkes, did then and there, by virtue of his said employment, have, receive and take into his possession certain money to a large amount, to-wit, to the amount of $600, and of the value of $600, of the property and moneys of said Ellen Wilkes, the said L.’s said employer, and the said L. the said money then and there feloniously did embezzle and fraudulently convert to his own use, with intent then and there to steal the same, without the consent of the said Ellen Wilkes, the said L.’s said employer, whereby, by force of the statute in such case made and provided, the said L. is deemed to have committed the crime of larceny, and so the jurors aforesaid, upon their oaths aforesaid, do say that the said L. then and there, in manner aforesaid, the said money of the property and moneys of the said Ellen Wilkes, the said L.’s said employer, from the said Ellen Wilkes did then and there feloniously steal, take and carry away, contrary, ” etc.

      Second count: That the said L., on, etc., “fraudulently and feloniously did embezzle and convert to his own use, with iutent to steal the same, $600 in money, and of the value of $600, of the money and property of one Ellen Wilkes, without then and there having the consent of the said Ellen Wilkes, and so the jurors aforesaid, on their oaths aforesaid, do say that the said L. then and there, in manner and form aforesaid, the said money, the property of the said Ellen Wilkes, from the said Ellen Wilkes feloniously did steal, take and carry away, contrary,” etc.
    A plea of not guilty was entered, and a trial was had, resulting in a verdict of gliilty, and finding the value of the property at $300, and fixing .the defendant’s punishment at three years imprisonment in the penitentiary. A motion for a new trial was made, and overruled. The court also overruled a motion in arrest of judgment, and sentenced the defendant to confinement in the penitentiary at hard labor for three years.
    Helen Wilkes testified on the trial that she was as well ’ known by the name of Ellen as any other; that soon after her husband’s death, in 1881, she gave Newton Matthews a mortgage on fourteen cows, one bull, two horses, wagon and harness, two mules, wagon and harness, household furniture, etc., and lumb.er worth about $100, to secure a note for $600, due in two years; that she owed Matthews nothing, but the mortgage was given to prevent her-property from being taken for her husband’s debts; that she had possession until June 5, 1882, when Matthews sold under the mortgage; that before the sale it was understood that defendant was to buy the property for her: that he did buy all the property and take possession, paying Matthews nothing; that defendant sold part under her orders, and part contrary; that the property was worth about $1300, and .that he said he received something like that; that he paid a mortgage on a pair of horses for §85, and gave her about §150 in small amounts, and that she asked defendant for her money, when he said he had used it. She further testified that the defendant was to buy in the property for her, and act as her agent, and sell it out, and turn the proceeds over to her.
    Newton Matthews testified that the mortgage was given to him to cover up the property from Mrs. Wilkes’ creditors; that it was arranged that defendant was to buy the property in and turn the money over to Mrs. Wilkes, and that the aggregate amount of the sale was §426.
    The defendant testified that he bought of Mrs. Wilkes first a pair of mules, wagon and harness, for §150, which he paid her; that she wanted him to buy her cattle at §600; that he offered Her §400, which she finally took, and that he paid §300 on the cattle at the time, and afterwards paid her the other §100, both payments being made in the presence of his brother. She afterwards sold him a pair of horses, subject to a mortgage of .§85, for §15, and that the property was not worth more than he paid. He also testified that after this purchase she informed him of the Matthews mortgage, but said she owed him nothing; that it was given to defeat the collection of a judgment; that he; at her request, went to Matthews’, office, when she told Matthew's that part of the cattle had been levied on; that Matthews said he w'ould get them for defendant, and sell them, under his mortgage, to defendant.
    There was other evidence substantiating that of the defendant in many respects, especially as to defendant’s purchase and payment for the property, at the conclusion of wdiicli the court remarked: “I am not satisfied with this,—let the defendant take the stand, ” which he did.
    By the court: “If you bought this property and paid for it, why did you have Matthews sell it under the mortgage, and you buy it in ?

      A. “Well, lie said it would make me safe, and they could not take the property.
    By the court: “Did you not know that if you bought and paid for the property you could hold it ?
    A. “No, I did as Matthews said. He was a lawyer, and I followed his advice. ”
    To which action and remark of the court the defendant objected and excepted.
    Messrs. Postee & Ratjm, for the plaintiff in error.
    Mr. James McCaetney, Attorney General, for the People.
   Per Cueiam:

No serious objection is perceived to either count of the indictment. Both counts charge defendant with the statutory crime of embezzlement, and are sufficiently formal under the statute. The fiduciary relation between defendant and the prosecuting witness is stated so it can be readily understood, and under the statute of this State that is all that is required. It follows a general verdict of guilty would be correct if the evidence warranted it.

The facts implicating the accused arise out of a very questionable transaction between the prosecuting witness and her legal adviser. Indeed, the transaction, so far as they are concerned, is confessedly illegal. On this account the evidence given for the People was not of a very satisfactory character. To rebut the case made by the prosecution, defendant offered testimony to show he had bought the property of the prosecuting witness,—the proceeds of the sale of which he was accused of embezzling; that the purchase was in good faith, and that he had paid for the same with money. On examination it is seen the testimony offered and given did tend to establish this defence, but what weight should be given to it was, of course, for the jury to determine. Had the jury been left free to decide that question, their verdict, no doubt, would have been regarded as conclusive; but after the introduction of the evidence on this branch'of the case, the court remarked, in the presence and hearing of the jury, “I am not satisfied with this,—let the defendant take the stand. ” This remark was clearly improper, and was calculated to prejudice the defence the accused was attempting to make. Whether the court was. satisfied or not, was not a matter proper to be communicated to the jury. They should have been left free to consider the evidence given by both parties, without any expression of opinion from the court. Undoubtedly the court has the discretionary right,—the exercise of which may tend to elicit the truth,—to direct that witnesses shall be recalled for further examination, or that other witnesses may be called to the stand to be examined; but the court ought not to state to the jury that it is or is not satisfied with any particular portion of the evidence. Expressions of that character are calculated to have great weight, and if the jury are to be controlled in that way, their services might as well be dispensed with in the first instance. It will also be seen, on examination, that the questions propounded to defendant by the court when he was compelled to take the stand again, are not altogether free from objection, although not seriously objectionable. -The impression they seem to make on the mind is, that they call rather for the thoughts of defendant than for anything he said or did. It must be understood the defence was made in good faith. The testimony relied on to establish it was given under the sanction of an oath. The examination of defendant by the court was, in some degree at least, calculated to cast suspicion upon it, and it could not be otherwise than prejudicial to the defence insisted upon.

On account of the errors indicated, the judgment will be reversed and the cause remanded, that tire accused may have a new trial.

Judgment reversed.