text:
    Alexander C. Sivwright, Collector, v. Daniel Pierce.

      Filed at Ottawa November 20, 1883.

      Taxes—assessment of personal property—at what place. A permanent resident of one town, in wbicb be bas been assessed on bis personal property, including bis credits, can not be assessed on sucb credits in another town in tbe same county; and where the board of review of the latter town extends an assessment against him for credits, a court of equity will enjoin tbe collection of tbe taxes extended thereon, as illegal.
    Appeal from,the Circuit Court of DeKalb county; the Hon. Isaac G-. Wilson, Judge, presiding.
    Mr. John L. Pratt, for the appellant:
    A party asking equity must be willing to do equity in the same matter. The proofs show that appellee, on May 1, 1880, had, and still has, in credits, $60,730 outstanding, and that the loans were negotiated, papers made and money handed over in the- town of Sycamore, and that the notes and mortgages securing these loans were kept in Sycamore.
    Boards of review have the power to make or order an assessment which the assessor has failed to make, for any • cause. No informality not going to the substantial justice of the tax shall, in any manner, vitiate the tax or assessment. Rev. Stat. chap. 120, sec. 191; Lyle v. Jacques et al. 101 Ill. 650; Chicago, Burlington and Quincy R. R. Co. v. Frary, 22 id. 34; Merritt et al. v. Farris et al. id. 310; McBride v. Chicago, id. 576; Munson v. Miner, id. 601.
    Equity will not restrain the collection of a tax on the sole ground of illegality, irregularity or informality. There must be sjiecial circumstances to give that court jurisdiction. Youngblood v. Sexton, 32 Mich. 406; Douglas v. Harrisville, 9 W. Va. 162; City of Delphi v. Bowen, 61 Ind. 29; Cook County v. Chicago, Burlington and Quincy R. R. Co. 35 Ill. 467; Felsenthal et al. v. Johnson, 104 id. 23.
    Mr. Hiram H. Cody, also, for the appellant:
    It is a rule of universal application that when a party has a complete remedy at law, and having the opportunity, slumbers upon his right and fails to insist upon it, a court of equity will not afford relief. City of Peoria v. Kidder, 26 Ill. 357; Adsit v. Lieb, 76 id. 198; Coolbaugh v. Huck, 86 id. 604; The People v. Big Muddy Don Co. 89 id. 116; Evans v. Gage, 1 Bradw. 208; 90 Ill. 570.
    The remedy at law in this case is “ample,” “only,” “adequate and exclusive.” English v. The People, 96 Ill. 568; Felsenthal et al. v. Johnson, 104 id. 23; Preston v. Johnson, id. 625.
    The question of the situs of property is not jurisdictional, and that it is taxed in the wrong town does not make the tax illegal. Selz v. Cagwin, 104 Ill. 647; The People v. Atkinson, 103 id. 45.

      Messrs. J. P. & T. E. Wilson, for the appellee:
    Appellee resided in Courtland during the entire year 1880, and his personal property was therefore not subject to taxation in the town of Sycamore. Rev. Stat. sec. 7.
    The town has no power to make an original assessment. Eev. Stat. sec. 86.
    A court of chancery has authority to enjoin the collection of taxes levied upon an assessment made without authority of law. Chicago, Burlington and Quincy R. R. Co. v. Frary, 22 Ill. 34; Kimball v. Merchants’ Savings, Loan and Trust Co. 89 id. 611; Town of Lebanon v. Ohio and Mississippi Ry. Co. 77 id. 539; Drake v. Phillips, 40 id. 388; Irvin v. New Orleans, St. Louis and Chicago Ry. Co. 94 id. 105; Lemont v. Singer and Talcott Stone Co. 98 id. 94; Chicago, Burlington and Quincy R. R. Co. v. Cole, 75 id. 591; Searing v. Heavy-sides, 106 id. 85; Coolbaugh v. Huck, 86 id. 604.
    The alleged fact that Pierce’s credits were assessed too low in Courtland, does not render valid the taxes levied upon such credits in the town of Sycamore.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The present bill was filed by the appellee, Daniel Pierce, in the De Kalb circuit court, against the appellant Alexander C. Sivwright, as the collector of the town of Sycamore, to enjoin the collection of a personal tax. The bill alleges that complainant is now, and during the entire year of 1880 was, a resident of the town of Courtland, DeKalb county, Illinois; that his personal property, including his credits other than as a banker, broker or stock jobber, were assessed by the assessor of the town of Courtland for the year 1880, and taxes extended on such assessment, and paid by the complainant to the collector of Courtland; that complainant was not on the first day of May, A. D. 1880, or at any other time during said year, engaged in business in the town of Sycamore, in the said DeKalb county, as a banker, broker or stock jobber, except as a member of the firm of Pierce & Dean, composed of himself and another, which firm was assessed for I860 upon its personal property, including its moneys and credits, in Sycamore, and taxes extended and paid to the collector of Sycamore; that he was not assessed, as an individual, upon personal property, by the assessor of Sycamore, for 1880; that the board of review of Sycamore for 1880 made an original assessment of $61,000, expressly on credits of complainant other than as a bank, banker, broker or stock jobber, and taxes were extended on such assessment, amounting to $1960.78, and a warrant for the collection of said taxes issued to the defendant, as collector of Sycamore, who threatens to levy upon complainant’s property by virtue of said warrant to collect said taxes, and will do so unless restrained by injunction. A temporary injunction was awarded upon the filing of the bill, which was made .perpetual upon the hearing, and the collector brings the ease here for review.

In the view we take of this. case it will not be necessary to consider the claim of appellee that the assessment in question was not made by the assessor of Sycamore, but that it was, on the contrary, an original assessment by the board of review for that town; nor will it be necessary to discuss other objections urged against the regularity or validity of the tax. The proofs fully show, and indeed it is not denied in the answer, that during the year 1880, and for a number of years prior thereto, appellee resided in Courtland, an adjoining town, and that his personal effects, including his credits other than as a banker, broker, etc., had been there assessed for the year 1880, and that the taxes so assessed for that year had already been paid. The proofs also fully sustain the charge' in the bill “that appellee had not, at any time during the year 1880, been engaged in business in the town of Sycamore, except as a member of the firm of Pierce & Dean, which firm was assessed for 1880 upon its personal property, including its money and credits, in Sycamore, and the taxes extended and paid to the collector of Sycamore. ” These facts being clearly established, it follows the town of Sycamore had no power or jurisdiction to levy, assess or extend upon the tax books the tax in question, and lienee the collector was properly enjoined from its collection.

The suggestion that appellee’s assessment in the town of Courtland covered hut a small portion of his personal effects, is a matter that concerns the town of Courtland, rather than that of Sycamore. It certainly did not justify the latter in imposing the tax in question.

The judgment-will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Craig

license: Public Domain

text:
    Henry E. Gerdes v. Roswell Champion.

      Filed at Ottawa November 20, 1883.

    1. Cebtiobaei—at common law—when it lies. The common law writ of certiorari may be awarded to all inferior tribunals and jurisdictions when it appears that they have exceeded the limits of their jurisdiction, or in eases where they have proceeded illegally, and no appeal is allowed, or no other mode is provided for reviewing their proceedings.
    2. Same—trial on record alone. The court awarding a writ of certiorari where the record is sent up, tries the case on the record alone. The trial is had by an inspection of the record,—not on any issue of fact, but of law, rather, as on a writ of error.
    3. Same—duty of inferior court on service of the writ. Where the writ is issued and served, it becomes the duty of the inferior court or body to whom it is directed to transmit a full and complete transcript of the record of the proceedings of which complaint is made, properly certified, to the court awarding the writ.

      i. Same—to test legality of laying out a highway. The commissioners of highways refused to grant the prayer of a petition for the laying out of a highway, and their order was filed in the town clerk’s office, whereupon a. party interested appealed from the decision of the commissioners, by filing, as he claimed, the necessary papers before a justice of the peace. The latter selected and summoned three supervisors to hear the appeal, who made a preliminary order granting the prayer of the petition, and then filed with the justice a certificate, under section 78 of the Boad act of 1879, asking for a jury to assess damages. The justice issued a venire for a jury, and fixed a day for the trial, when a common law writ of eertiorari was served upon him: Held, that the writ could bring nothing before the court except the petition for the appeal, the appeal bond, and the certificate asking for a jury, these being the only papers required to be filed before the justice, and that as no court could decide, from these alone, the legality of the proceedings, the writ was properly dismissed. The writ should not have been sued out until the proceedings were completed, and the papers filed with the town clerk.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Whiteside county; the' Hon. John Y. Eustace, Judge, presiding.
    Messrs. J. & J. Dinsmoor, for the appellant:
    The common law writ of certiorari may he issued to all inferior tribunals, etc., where it is shown that they have exceeded their jurisdiction, or have proceeded illegally, and no appeal or other mode of reviewing their proceedings is provided. Loomis v. Wilkinson, 13 Ill. 660.
    The right to appeal in a road matter is a jurisdictional fact, which must appear on the record. All matters and proceedings relating to laying out roads are to be considered stricti juris. Frizell v. Rogers, 82 Ill. 109; Warne v. Baker, 35 id. 382; Commissioners v. Harper, 38 id. 103.
    By statute (section 98 of the Boad law of 1879) the appeal is not to the supervisors, but to the justice, and until the supervisors close up their part of the business the record of the proceedings remains with the justice, and must be treated as a cause before him. Hence it follows that the writ of certiorari should be sent to the justice while the appeal is pending before him.

      No one can appeal from the decision of the commissioners except he is “one interested.” Road law 1879, sec. 98, Rev. Stat. chap. 121.
    As to construction Of statute finding who are interested, see Taylor et al. v. Town of Normal, 88 Ill. 526; Whitmer et al. v. Commissioners, 96 id. 289; Town of Oswego v. Kellogg, 99 id. 590.
    The fact that proceedings in this case might be void for want of jurisdiction, is no reason why they may not be reversed where the record is brought up by a common law writ of certiorari. Loomis v. Wilkinson, 13 Ill. 660.
    Messrs. Manahan & Ward, for the appellee:
    It is not essential that the party appealing shall be an owner of land over which the projected road passes, as it was under the law of 1861. Whitmer v. Commissioners of Highways, 96 Ill. 289; Town of Oswego v. Kellogg, 99 id. 590.
    ■ The status of the person appealing from the order of the commissioners, under the old law might rest in pais. Commissioners of Highways v. Supervisors, 53 Ill. 320; Town of Winfield v. Moffatt, 42 id. 48.
    The statute requires the original petitioners for the road to be freeholders, yet the petition need not allege that they are-such. (Stager on Highways, 124; Brown v. McCord, 20 Ind. 270.) And where the question arises collaterally, proof of the status of the petitioners may be made by parol. Austin v. Allan, 6 Wis. 134; Bushnick v. Meresole, 10 Wend. 122.
    The record of this road is an entirety, although a part of it is with the town clerk, part with the appellee,, and the residue, as yet uncompleted, with the supervisors before whom the appeal is pending. The writ bringing up only the papers before the justice, can not suffice to determine thev jurisdiction of the supervisors.
    Appellant should wait until the record of this proceeding shall be embodied in the final order of the supervisors and deposited with the town clerk. Then the writ of certiorari will bring up the entire record, by which the jurisdiction of the supervisors must stand or fall. The recitals of that final order, if of jurisdictional facts, will be enough to confer jurisdiction. Commissioners of Highways v. Magill, 58 Ill. 422; Frizell v. Rogers, 82 id. 109; Hawkins v. Galloway, 88 id. 155.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a common law writ of certiorari, in the circuit court of Whiteside county, issued on petition of Henry E. G-erdes, against Eoswell Champion, a justice of the peace, requiring him to send up a record of certain proceedings before him in regard to laying out a certain.highway.

It appears that the commissioners of highways of the town of Hopkins, in Whiteside county, had received a petition praying for the laying out of a highway in the town. The commissioners, upon the hearing, refused the prayer of the petition. The order was indorsed on the petition and duly filed in the town clerk’s office. One Tumbleson appealed from the decision of the commissioners to three supervisors, by filing, as he claims, the necessary papers before appellee, a justice of the peace. The justice summoned three supervisors to hear the appeal, who, upon the hearing, made a preliminary order granting the prayer of the petition. The supervisors then filed with appellee, a justice of the peace,, a certificate, under section 78 of the Eoad and Bridge act, asking for a jury to assess the damages. The justice issued a venire for a jury, and fixed upon a day for trial, when this writ of certiorari was issued commanding him to send up a transcript of his record of the said proceedings had before him as justice of the peace. The circuit court, on motion, dismissed the writ, and this decision was affirmed in the f Appellate Court. The petitioner not being satisfied with the decision of the Appellate Court, has prosecuted this appeal.

The common law writ of certiorari may be awarded to all inferior tribunals and jurisdictions where it appears that they have exceeded the limits of their jurisdiction, or in cases where they have proceeded illegally, and no appeal is allowed, and no other mode is provided for reviewing -their proceedings. (People ex rel. Loomis v. Wilkinson, 13 Ill. 660.) In speaking of this writ, in Commissioners v. Harper, 38 Ill. 107, it was said: “The common law writ of certiorari is the only mode by which the entire record of the proceedings of an inferior tribunal can be brought into the circuit court. That writ brings up a full and complete transcript of the record of the proceedings of which complaint is made, and when brought up the superior court tries the case on the record alone. * * * The trial is had by an inspection of the record,—not on any issue of fact, but of law, rather, as on a writ of error.” In Commissioners v. Supervisors, 27 Ill. 143, it is said: “When issued and served, it becomes the duty of the inferior court, or body to whom it is directed, to transmit a full and complete transcript of the record of the proceedings of which complaint is made, properly certified, to the court awarding the writ. ”

It is contended here that the petition for an appeal filed before the justice of the peace by Tumbleson was not sufficient to authorize the justice to entertain it. It will be observed that the petition to establish the highway, and all the proceedings upon it by the commissioners of highways, are on file in the office of the town clerk. The justice of the . peace to whom- this writ was directed was not the custodian of any part of the proceedings relating to the laying out of this road, except the petition for an appeal required by section 99, chapter 121, of the Eevised Statutes of 1874, and the bond required by section 102, and the certificate required by section 78, calling for a jury to assess damages. All other papers and proceedings relating to this highway were either in the office of the town clerk or in the hands of the three supervisors to whom the appeal was taken. This writ of certiorari could properly bring nothing before the court except the petition filed with the justice for an appeal, the appeal bond, and the certificate calling for a jury to assess damages. Could the circuit court, or any other court, in an intelligent manner pass upon and determine whether the supervisors had jurisdiction to lay out this road on this small fraction of a record of the proceedings brought up on this writ ? The answer is obvious. The only intelligent manner in which the action of the supervisors could be passed upon and determined would be to bring up the entire record of the proceedings- had in regard to the road, from the commencement down to and including the last and final order. Under section 101 the supervisors are required to “make a report of their proceedings and decision in the case, and in like manner that is by this act required by the highway commissioners, * * * and their decision shall be final.” Section 89 is the section of the statute fixing the duties ofi the commissioners after they have made and signed an order laying out the road. It is there declared: “The commissioners shall, within ten days from the date of such order, cause the same, together with the report of the surveyor, the petition and releases, or agreements in respect to damages, to be deposited and filed in the office of the town clerk, who shall note upon such order the date of such filing.” After the jihree supervisors shall have completed the proceedings and made return to the town clerk, if they acted without jurisdiction it will then be time enough to raise that question, when all the proceedings relating to the road can be brought before the court for examination. As that time has not arrived, and as there was nothing but a small part of the record before the circuit court, the court decided right in quashing the writ.

The decision of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Walker

text:
    The International Bank of Chicago et al. v. George Wilshire.

      Filed at Ottawa November 20, 1883.

    1. Mortgage—assignment—conveyance in fee by mortgagor to mortgagee-effect as to prior assignee of the debt secured—whether there is a merger. A conveyance of real estate by a mortgagor to the mortgagee after the assignment of the notes secured and the mortgage to another, taking the same in good faith and for value, without the knowledge or assent of such assignee, will not, as to him, operate as a merger of the mortgage, or affect his rights; and after the recording of the assignment of the mortgage, a purchaser from the mortgagee after the mortgagor’s release of his equity of redemption will take subject to the equitable rights of the assignee.
    2. A mortgagee, after the release to him of the mortgagor’s equity of redemption, may keep the mortgage alive in favor of one to whom he had pledged the mortgage debt before the release of the equity of redemption, and he may also obtain future advances on such assignment, which will be evidence of an intention to keep the mortgage alive for the protection of his assignee; and in such case no merger will take place.
    3. A conveyance of a mortgagor’s equity of redemption to the mortgagee, after the latter has parted with the mortgage and notes thereby secured, by assignment to a bona fide purchaser or creditor as a security, can not, in equity, be. treated as a merger of the mortgage estate in the fee, for the reason that the original mortgagee, in equity, at the time of such conveyance had ceased to be such mortgagee, so that the two titles could not unite in the same person. If such conveyance should be made to the assignee of the mortgage, there would be greater plausibility in claiming a merger; but even then, if equity had required it, to promote justice, it would not have been treated as a merger.
    4. Chancery—affirmative relief on answer—what so regarded. On bill to enjoin the sale of real estate on execution issued on a judgment in a proceeding by scire facias to foreclose a mortgage, the court, on hearing on bill, answer and replication, entered a decree, allowing the defendant to proceed and sell under his execution, and directing the sale to be made in the same way the law required, independent of the decree: Held, that the decree was not subject to the objection of giving affirmative relief without a cross-bill.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. T. A. Moran, Judge, presiding.

      Messrs. Rosenthal & Pence, for the appellants the International Bank, Greenebaum & Foreman, and Levi Rosenfeld:
    A merger of a mortgage into a greater estate is always a matter of intention, and where the intention to merge a mortgage in the fee is established, nothing can be shown against it. Campbell v. Carter, 14 Ill. 286; Jarvis v. Frink, id. 396; Edgerton v. Young, 43 id. 464; Fowler v. Fay, 62 id., 365; Ætna Life Ins. Co. v. Corn, 89 id. 173.
    The Honoré mortgage standing of record in Walker at the time of the conveyance by Honoré to him, there was a presumption of a merger, and deeds made by Walker, and put of record before the filing for record of the assignment of the Honoré mortgage to Wilshire & Co., would be protected against the Honoré mortgage. Ogle v. Turpin, 102 Ill. 148.
    Where a mortgage is paid and satisfied, or is merged in the larger estate, it ceases to exist as a security in the hands of the mortgagee, and the legal title -is reinvested in the mortgagor by operation of law. Ryan v. Dunlap, 17 Ill. 43; Wiltham v. Brooner, 63 id. 344; Andrews v. Thayer, 30 Wis. 228; Ladue v. Railroad Co. 13 Mich. 395; Richardson v. City of Cambridge, 2 Allen, 118; Merrill v. Chase, 3 id. 339.
    Further advances subsequent to the record of an intervening deed or incumbrance can not be enforced as against the intervening purchaser or incumbrancer. Terhoven v. Kerns, 2 Barr, 99; Brinkerhoff v. Marvin, 5 Johns. Ch. 326; Montgomery County’s Appeal, 36 Pa. St. 132; Griffin v. New Jersey Oil Co. 8 Stockt. 52; Spader v. Lawler, 17 Ohio, 371.
    The only cases in this State on the question, are Fry v. Bank, 11 Ill. 155, Collins v. Carlyle, 13 id. 254, Speer v. Skinner, 35 id. 282, and Schultze v. Houfes, 96 id. 335.
    The Honoré mortgage having ceased to exist, can have no operation, or be revived, so as to charge the estate of Walker in his own hands, without some instrument in writing made and signed by him. Beckham v. Haddock, 36 Ill. 39; Rich

      ardson v. City of Cambridge, 2 Allen, 118; Merrill v. Chase, 3 id. 338.
    Tlie assignment of Walker to Wilshire & Co. had ceased to be operative on account of the merger, and before the indebtedness to them now existing was created. -Being a nullity it was not entitled to be recorded, and after record was no notice. Moore v. Hunter, 1 Gilm. 317; St. John v. Conger, 40 Ill. 536; James v. Morey, 2 Cow. 310; Mesick v. Sunderland, 6 Cal. 315; Kerns v. Savage, 2 Watts, 77; Tillman v. Cowand, 12 S. & M. 265.
    After the extinguishment of the Honoré mortgage by merger, and such merger appearing of record, a judgment of foreclosure by scire facias would also be a nullity, for a proceeding by scire facias is a proceeding upon a record, and a judgment in scire facias creates no lien upon the mortgaged premises, but is merely the means of making available the lien already existing. State Bank v. Wilson, 4 Gilm. 61 ; Chickering v. Fades, 26 Ill. 517; Chestnut v. Chestnut, 77 id. 346; Woodbury v. Manlove, 14 id. 23.
    Mr. W. T. Btjbgess, for the appellant A. G. Hunt:
    Hunt assigns an error peculiar to himself,—that affirmative relief was granted to his co-defendant in the original bill (Wilshire) without any cross-bill whereby the issues between him and Wilshire could be raised and tried. Such relief can not be granted without a cross-bill. Ballance v. Underhill, 3 Scam. 453; Edwards v. Helm, 4 id. 142; McCagg v. Heacock, 42 Ill. 153; Hanna v. Ratikin, 43 id. 462; Titsworth v. Stout, 49 id. 78; Norman v. Huddleston, 64 id. 11; Price v. Blackmore, 65 id. 386.
    Messrs. J. P. & J. R. Wilson, for the appellee:
    The burden of proof on the question of merger is upon the appellants, and Wilshire & Co. were not chargeable with constructive notice of the deed from Honoré to Walker. Heaton
      v. Prather et al. 84 Ill. 330; Hosmer v. Campbell, 98 id. 572; Stuyvesant v. Home, 1 Sandf. Ch. 426; King v. McVickar, 13 id. 192; Blair v. Ward, 1 Stockt. 119; Iglehart v. Crane & Wesson, 42 Ill. 261; Meacham v. Steele, 93 id. 141; Buchanan v. International Bank, 78 id. 500.
    Where the mortgagor conveys the equity of redemption to the mortgagee, there arises no such presumption of a merger as will protect a third party subsequently buying from the mortgagee, as against the purchaser of the note secured by the mortgage who has bought such note prior to the deed from the mortgagor to the mortgagee, (Edgerton v. Young, 43 Ill. 464,) unless the mortgagee has entered satisfaction, on the record. Ogle v. Turpin, 102 Ill. 148. See, also, Jones on Mortgages, see. 872; Purdy v. Huntington, 42 N.Y. 304.
    Merger should not be allowed where the two estates may well stand together, and there must be no right outstanding to intervene between the right held and the right acquired. Hunt v. Hunt, 14 Pick. 324. See, also, 2 Washburn on Real Prop. 193; Jones on Mortgages, secs. 853, 872.
    A merger is never allowed to take place where it will do injustice. Starr v. Ellis, 6 Johns. 394; Edgerton v. Young, 43 Ill. 464; Huebsch v. Scheel, 81 id. 281; 1 Hilliard on Real Prop. 444; Richardson v. Hockenhull, 85 id. 124; Stanton v. Thompson, 49 N. H. 272; Kellogg v. Ames, 41 N. Y. 259.
    Walker, by treating the mortgage as still subsisting, is estopped from insisting on its merger. Powell v. Smith, 30 Mich. 451; Kellogg v. Ames, 41 N. Y. 259.
    Purchasers from Walker, after the recording of the assignment of the Honoré mortgage, have no greater rights than Walker would have as against the Honoré mortgage.
    The judgment in the scire facias proceeding is a bar to all defences to the Honoré mortgage that could have been set up as defences to such suit. Hobson v. Evan, 62 Ill. 146; White v. Watkins, 23 id. 480; Carpenter v. Mooers, 26 id. 162.
    The decree does not grant affirmative relief to Wilshire.
   Mr. Justice Walker

delivered the opinion of the Court:

In the month of October, 1865, Samuel J. Walker, being the owner of certain real estate in the city of Chicago, conveyed it to Henry H. Honoré, who, on the same day, executed a mortgage on the premises to Walker, to secure the payment o'f two promissory notes of the same date, executed by Honoré to Walker, for $18,000 each, due in one and two years after date. They bore eight per cent interest. The mortgage recited that the notes were given for part of the purchase money. The deed and mortgage were recorded on the 30th day of December, 1865. Soon after, Walker sold one of the notes to Wilshire & Co., of Cincinnati, and left the other with them as collateral security for any sum he might afterwards owe them. The notes and mortgage have ever since remained in their possession or control. When the note due in twelve months matured, Walker paid an amount equal to the amount due, which, with the other note not then due, he pledged as collateral security for any sum they might afterwards advance to him. Wilshire & Co. still held the note and mortgage, and they also purchased other commercial paper, from time to time, from Walker, indorsed and guarantied by him, until the fall of 1872. In November of that year Wilshire & Co. placed the mortgage, and the indorsement thereon, dated in 1866, on record in the proper office. In 1871 Walker procured from Honoré a quitclaim deed of the premises embraced in the mortgage, which he had recorded, but of this Wilshire & Co. had no other notice than the record. Walker, at all times, after he assigned the mortgage to Wilshire & Co., was indebted to them, and to secure which they held the Honoré notes and mortgage. In 1877 George Wilshire, as surviving partner of the firm, commenced proceedings Jby scire facias in the Superior Court to foreclose the mortgage, against Honoré, which resulted, at the September term of that year, in a judgment. In 1878 appellants sued out a writ of error from this court to reverse that judgment, but on a hearing it was affirmed, and appellants then filed the original and cross-bills to enjoin the sale of the mortgaged premises under the judgment in scire facias. On. a hearing, the court below found that the notes and mortgage were pledged to secure indebtedness from Walker to the Wilshires, and the amount of such indebtedness was $65,000, and directed the sale óf so much only of the property covered by the Honoré mortgage as remained unsold and in the hands of "Walker at the date of the recording of the assignment of the mortgage to the Wilshires, under the scire facias judgment, and that the property be sold in the inverse order of its alienation.

The question presented, and upon which this controversy must turn, is, whether the conveyance by Honoré, the mortgagor, to Walker, the mortgagee, operated for all purposes as a merger and extinction of the mortgage previously assigned to and held by the Wilshires. Whether it operated as a merger as between Honoré and Walker is unimportant, and we will not stop to inquire. The question is, what effect did it have on the rights of the Wilshires, and purchasers of a portion of the lots embraced in the mortgage, after the assignment was spread on the record. That Walker was indebted to the Wilshires, and they held the Honoré notes and mortgage, assigned to them as security for indebtedness Walker owed them when he procured the quitclaim deed from Honoré, there seems to be no question, and it would seem to be an incontrovertible proposition that the conveyance, without the consent of the Wilshires, did not, nor could it, have the slightest effect on their rights. The lien they then held was in every particular legal and equitable, valid and binding. This being true, there is no known means by which Walker or Honoré, or both combined, could, without the consent of the Wilshires, or at least by some omission of duty on their part, in the slightest degree affect or impair their rights.

As between Walker and the Wilshires, there can not be the shadow of a doubt that after Honoré quitclaimed the property to Walker it was competent for Walker and the Wilshires to keep the mortgage alive to secure money the former owed then, or might subsequently owe the latter. There is not the slightest evidence that Walker intended to merge the mortgage with the fee, so as to extinguish it, so far as the pledge to the Wilshires was concerned. On the contrary, the inference is that it was intended to be kept in full force as a security for the money Walker owed the Wilshires. Walker so treated it when he subsequently obtained advances on the mortgage and notes as security. Nothing was said or done which negatives the conclusion that for that purpose all parties to the transaction regarded it as a subsisting security. Had Walker, after acquiring the equity of redemption, mortgaged the property to the Wilshires to secure existing indebtedness as well as future advances, and the mortgage been recorded, no one would have questioned that it would have become a lien that would have held the property against all subsequent purchasers. Then why could not Walker pledge that mortgage as security for such loans ? As between the parties there can be no question that he might do so, and the act would be valid.

Here was a mortgage given to secure two notes, that ivas legal and valid. These notes and mortgage ivere legally assigned to secure a bona fide debt. The assignment of the mortgage was recorded in the proper office, and became notice of the lien to the whole world. There is no pretense that these notes were ever paid or the mortgage ever in fact satisfied, and we have seen the mortgage was not merged with the fee, because the parties did not intend a merger, and it would be inequitable and unjust to hold that the conveyance to Walker operated to extinguish the mortgage. Walker, in equity, was not the mortgagee when Honoré conveyed to him. The Wilshires ivere, in equity, the mortgagees, and the two titles did not unite in the same person, and never have. Had Honoré conveyed to the Wilshires, there would have been more plausibility in claiming there was a merger,—and even then, if equity had required it to promote justice, it would not have been treated as a merger. Whether the union of two such titles in one person shall operate as a merger, depends on the intention of the parties and the equities of the case.

The Wilshires then holding a valid lien on the lots in controversy, and the mortgage and its assignment being on record and notice to all persons, those purchasing after the assignment was recorded did so subject to the lien of the mortgagee, and at their peril. The record was full notice of appellee’s claim, and having so purchased they must be held to have done so in view of all of appellee’s rights, and the property purchased of Walker after the assignment must be held subject to sale under the scire facias judgment.

The fact has been alluded to that in the absence of William Wilshire in California, his brother George made a conditional arrangement to surrender the notes and mortgage and to take another mortgage on other property, and the notes and mortgage were left with Kerfoot. The evidence clearly establishes the fact that this arrangement was not consummated, and was not to be unless it was approved by William Wilshire on his return from California, and on his return he refused to sanction the arrangement. All must know that such an incomplete arrangement could have no effect on the rights of appellee.

It is also urged that the court below erred in granting affirmative relief to appellee without a cross-bill. We do not see that any relief of any kind was granted, unless it was the dismissal of the bill and permitting the property to be sold to satisfy the judgment. Appellee, in the absence of any decree, was required to sell in the inverse order of alienation, and only to sell such portion of the property as was purchased after the assignment of the mortgage was recorded. This was the right of appellee, independent of the decree. It conferred on him no right he did not possess before. Nor did it deprive appellants of any rights. It simply permitted appellee to proceed to obtain satisfaction under an execution on his judgment at law.

Having discussed the questions deemed important to the decision of the case, we dismiss the others without further consideration.

Failing to perceive any error in the record, the decree of the court below'is affirmed.

Decree affirmed.


author: Mr. Justice Scholfield

text:
    The County of Cook v. Henry Harms.

      Filed at Ottawa November 20, 1883.

    1. BuHjDING contract—when it ceases to govern, by material departures in its execution. A contract for furnishing all materials, and constructing a foundation for a court house according to certain plans and specifications, upon which bids were based, provided that any work, changes, additions or alterations ordered should not invalidate the contract, but that they should be paid for as extra work, or deducted from the original amount, as the case might be, such extras or deductions to be subject to the valuation of the architect, whose decision was to be final: Held, that if the work, etc., ordered, was materially variant from the plans and specifications, it would be a different work not within the contemplation of the parties when the contract was made, and that where more than mere changes, additions and alterations were required, the contractor was not bound to accept such compensation for his labor, etc., as the architect might fix.
    . 2. Same—provision for changes, etc., in work, construed. Where a contract for the construction of a building provides that “changes, additions and alterations” in the work may be ordered and paid for as extra work, or deducted, as the case may be, on the architect’s estimate, it will be held to mean only such “changes, additions and alterations” as may be incidental to the complete execution of the work as described in the plans and specifications, and therefore of only minor and trifling importance. Any material departure from such plans and specifications, resulting in a- new and substantially different undertaking, can not be regarded as within the meaning of such a provision, and the contractor, in case of such material and substantial change, is not limited or governed by the original contract as to his compensation for the work.
    3. Same—estoppel of party, by Ms conduct, from availing of an abandonment of a special contract. In case of the abandonment of a special contract for labor, work and material by one party thereto, there is no presumption of estoppel against the right of the other party to avail of it, and hence the law of estoppel is not an indispensable element in the doctrine of abandonment. It may, or it may not, apply in such cases, and if relied on it is matter of special defence.
    4. Same—when architect’s decision is not final, though so expressed in contract. Where a building contract provides that in case changes, additions or alterations are required in the work, and made, the price to be paid extra or deducted therefore shall be “subject to the valuation of the architect, ” whose decision shall be final, it is the architect’s judgment, and not his arbitrary will, that is made conclusive, and if he acts fraudulently his decision will not conclude the party whom he attempts to wrong.
    5. Under such a provision in a contract, if it be shown that the architect, in making his decision, has disregarded important, clearly established or obvious facts, of which there is some evidence in the record, the prima facie presumption will be that he did so willfully.
    6. Where a building contract makes the estimate and valuation of an architect final on the parties as to extra work, caused by changes, additions or alterations ordered, the architect can only exercise the right of determining the value of such extra work and material in the manner provided in the contract.
    7. Instruction—whether submitting a question of law. Where, after a contract for making the foundation of a court house, etc., had been entered into, based upon certain plans and specifications, new plans were adopted to which the contractor was required to conform, and in a suit by him against the county the court instructed the jury that if they believed, from the evidence, that the new plans “were so different from the old plans as to provide for a new and materially different job or piece of work and foundation, and not a mere change, addition or alteration of the foundation provided for by the old plan,” (which were authorized to be made by the contract,) and that such adoption of the new plans was without the consent of the plaintiff, then the original contract was not binding on him, etc.: Held, that the instruction was not subject to the objection that it submitted a question of law to the jury. The jury by it are told v'hat does not mean changes, etc.
    8. Same—when should be qualified in itself. A proposition in an instruction which, in and of itself, is not accurate without modification or qualification, should be accompanied with the requisite modification or qualification.
    9. Same—need not anticipate hypotheses of the opposite party. It is not required that an instruction shall anticipate the existence of hypotheses contrary to that upon the theory of which it is framed. It is sufficient if it rests upon a hypothesis sustained by evidence, and states accurately and fully the law upon that hypothesis. If the evidence also fairly presents hypotheses sustaining modifying or repugnant legal propositions, those desiring to avail of such propositions may have them presented in separate instructions.
    10. So where an instruction presents a prima facie case entitling the plaintiff to recover for the value of materials furnished and labor performed by him, upon the ground that the original contract had been abandoned by the defendant, if the defendant relies upon the fact that the plaintiff is by his conduct estopped to say that the contract has been abandoned, he should ask an instruction in his own behalf presenting the law upon that phase of the case.
    11. Same—must be based on evidence—need not be supported by the weight of. An instruction may properly be given based upon a hypothesis of which there is some evidence tending to prove, without regard to the weight or preponderance of the samé.
    12. Same—as assuming facts. It is not objectionable in an instruction to assume as true a pertinent matter about which there is no dispute. Nor does an instruction submit a legal proposition which tells the jury that although they may believe, etc., then the law is so and so.
    13. Estoppel—of county, by acts of its agents. A county may be estopped and concluded by the acts and declarations of its agents appointed to superintend and supervise work being done for it under a contract, made in relation to the matter of their agency.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of DuPage county; the Hon. John H. Williams, Judge, presiding.
    Mr. B. E. 'Bliss, and Messrs. Stiles & Lewis, for the appellant:
    A contract once made is presumed to exist until it is shown to have been reformed or rescinded. Love v. Edmonston, 3 Ired. L. 354.
    The language, “any changes,” etc., shall not invalidate or impair the contract, is very broad and comprehensive, and will permit any changes whatever in the plans, provided the work to be done is still the foundation for a new court house. The words, “any additions, changes or alterations, ” are not technical words to be construed by the jury. It is the duty of- the court to construe and give their meaning. 2 Parsons on Contracts, 492.
    "What the contract required to be done, was a question of law for the court; whether it had been done, a question of fact for the jury. Worcester Medical Institute v. Harding, 11 Cush. 285; Streeter v. Streeter, 43 Ill. 155; Glacius v. Black, 67 N. Y. 563; Robsobacher v. Ware, 3 Iowa, 85; Andrews v. Tedford, 37 id. 314; Monadnock R. R. Co. v. Felt, 52 N. H. 379.
    Mere deviations and changes of the plan will not imply abrogation or abandonment, where the contract expressly provides that such deviations and changes may be made. Bozarth v. Dudley, 14 N. J. L. 304.
    If the adoption of the new plans amounted to a breach or abandonment of the contract by the county, Harms was entitled to abandon it, too, and sue for what he had done, and damages. But in such case he was required to take his position distinctly and unequivocally. Weeks v. Robis, 42 N. H. 316; Sumner v. Parker, 36 id. 449; Evans v. Montgomery, 50 Iowa, 325; Carney v. Newberry, 24 Ill. 203.
    An architect has no authority, as such, to order deviations from the plan, or to waive or make a new contract. Cooper v. Langdon, 9 M. & W. 60; Stuart v. City of Cambridge, 125 Mass. 102; Benton Co. v. Patrick, 54 Miss. 240; Starkweather v. Goodman, 48 Conn. 101.
    The supervisors have no power to act individually. It is •only when convened and acting together as a board of supervisors that they represent and bind the county by their acts. Where the officers or agents of a public corporation have no powers with respect to original matter, we regard the rule to be that neither their acts nor their individual knowledge in respect to the matter can in any way hind or affect such corporation. Benton v. McDonough County, 84 Ill. 384; Rice v. Plymouth County, 43 Iowa, 136.
    The parties’ construction of a contract, as shown by their acts in respect to it, when reasonable, will govern. Vermont Street M. E. Church v. Brose, 104 Ill. 206; Patterson v. Camden, 25 Mo. 13; Whitehead v. Bank of Pittsburg, 2 W. & S. 172; Chapman v. Black, 5 Scott, C. P. 515; St. Louis Gas Light Co. v. City of St. Louis, 16 Mo. 121; Chicago v. Sheldon, 7 Wall. 50; Garrison v. Nute, 87 Ill. 215.
    The parties were bound by the valuations of the architect, unless impeached for fraud or mistake. Snell v. Broten, 71 Ill. 133 ; Korf v. Lull, 70 id. 120; Coey v. Lehman, 79 id. 173; Downey v. O’Donnell, 86 id. 19; Finney v. Conden, id. 78; Dingley v. Green, 54 Cal. 333.
    Mr. J. Y. Lb Moyne, and Mr. E. H. Gray, for the appellee:
    If fraud is wanting there can be no equitable estoppel. There must be deception, and change of conduct in consequence, in order to estop a party from showing the truth. Dorlarque v. Cress, 71 Ill. 380; Chandler v. White, Slid. 135.
    Estoppels in pais may be applied to municipal corporations. Chicago, Rock Island and Pacific R. R. Co. v. City of Joliet, 79 Ill. 25; Logan County v. City of Lincoln, 81 id. 156; Northwestern Ry. Co. v. People, 91 id. 251; Martel v. City of East St. Louis, 91 id. 67.
    Counsel also contended, at considerable length, that the plaintiff’s instructions were proper, and based upon evidence, and also reviewed the evidence and considered its bearing and weight.
   Mr. Justice Scholfield

delivered the opinion of the Court:

On the 6th of October, 1875, a contract was made, and its terms reduced to writing, and signed by the parties thereto, whereby Henry Harms, in consideration of certain specified payments agreed to be made to him by the county of Cook, agreed “to furnish the materials and labor, and perform all the excavating, make the roadivay, perform the piling and concrete work, together with the stone and mason work, including the brick work and sewerage,” that might “be required in and about the construction and erection of the foundation of the new court house” then “about to be erected by the county of Cook” in the city of Chicago, “according to the plans and specifications of J. J. Egan, architect.” Work was commenced under this contract, and prosecuted until the I7tli of January next following, when the county board rescinded its action, taken before the making of the contract with Harms, whereby it had approved and adopted the plans for the court house, in view of which that contract was made, and approved and adopted new plans, prepared by the same architect, in their stead. Thereafter, Harms furnished the materials and did the work to fully construct and "complete the foundation of the court house, under the direction of the architect and superintendent of the county, in conformity with the plans last approved and adopted by the county. This suit was brought in the circuit court, for the value of the materials and work and labor thus furnished and performed by Harms. This appeal from the affirmance of the judgment of the circuit court by that of the Appellate Court, brings before us only the correctness of the ruling of the Appellate Court in respect to the propositions of law involved in the giving and refusing of instructions, and in respect to the admission of certain evidence on behalf of appellee against appellant’s objection, for no other questions of law 'were raised and passed upon during the progress of the trial.

The following instruction, given at the instance of the plaintiff, is objected to:

“If the jury believe, from the evidence, that the new plans for a foundation, adopted by the commissioners January 17, 1876, were so different from tlie old plans as to provide for a new and materially different job, piece of work and foundation, and not a mere change, addition or alteration of the foundation provided for by the old plan, and that such adoption of the plans was without the consent of plaintiff, then the original contract was no longer binding upon the plaintiff, and he would be entitled to be paid according to measurement and value fpr such work and materials, if any, as the evidence shows was furnished to defendant and accepted by said board of commissioners, with full knowledge on their part,—if the jury so find, from the evidence, that the same w7as furnished upon an implied contract to pay for the same, not under the contract rea'd in evidence. ”

The grounds of objection insisted upon in argument are, first, it submits a question of law to the jury; and second, it ignores the effect of the conduct of the parties in regard to the continuance of the contract, and its meaning as to the extra work. We can not coincide with counsel on either proposition.

First—One of the “general conditions” in the specifications annexed to the contract is as follows: “If the contractor shall be ordered to execute any w7ork, or make any additions, changes or alterations in the work, as hereinafter set forth, and as indicated on the plans, drawings and sections herewith submitted, then it shall be understood and agreed upon that such changes, additions or alterations, if so ordered, shall not invalidate or impair the contract, but they shall be paid for as extra work, or deducted from the original amount of the contract, as the case may be,—such extras or deductions, if any, to be subject to the valuation of the architect, w'hose decision and valuation of them shall be final and binding upon both the parties to the contract,”—and that portion of the instruction to which the first objection is urged has reference to this language. It is quite clear,the instruction does not, as counsel seem to believe, leave the meaning of this language to the jury. The jury are told what does not mean “changes, additions and alterations, ” and they are left to determine whether, as matter of fact, what was done was what they are thus told does not mean “changes, additions and alterations.” The words, “and not a mere change, addition or alteration, ” etc., add nothing to the effect of those previously used, the gist of the whole instruction lying in the statement of what does not come within the meaning of the words, “changes, additions and alterations.” And the only serious question, is, whether the language of the instruction is, in that respect, accurate. We think it is—at all events, sufficiently so for all practical purposes. The contract was made pursuant to bids or proposals previously invited by published notices, and those bids were made upon calculations based upon the plans and specifications annexed to the contract. We are not authorized to assume the furnishing of these plans and specifications, and the inviting of these bids or proposals, were intended either to éntrap' the unwary or as an idle and useless ceremony; but we must, on the contrary, assume they were intended in good faith, for the purpose of intelligently and bona fide making a contract for the construction of the foundation of'the court house. If intended for that purpose, the work to be done would have to conform, in all material respects, to that described in the plans and specifications; and if materially variant therefrom, it would necessarily be a new and different work, because not within the contemplation of the parties when the contract was made. We do not conceive that the prefixing of the word “any,” materially enlarges the meaning of the words “changes, additions and alterations,” for if there is only “change, addition or alteration, ” the contract must govern; if there is more than this, it does not, and the question is, simply, what constitutes “changes, additions or alterations,” within their meaning as here used. Counsel insist there is no limit to the changes, additions or alterations that may be made. If this he true, then the advertising for bids and the stipulating of prices in the contract were useless. The contract should then have been drawn that the county would pay for the work at a valuation to be fixed by its architect.

Obviously, under a contract to construct a framed building at stipulated prices, a party could not be required to construct a stone or brick building, at prices to be fixed by the architect of the other party, by the use of these words in the contract. Nor could a party, by virtue thereof, contracting to build a small and inferior brick or stone building, be required to construct a large and superior stone or brick building. The mere combination of proportions and quantities, even of materials of the same class or grade, may be so different in different buildings of the same dimensions, that a party would not make the same bid, or be able, without financial loss, to construct them all for the same price.

The terms stated in the writing were, we think, the controlling inducement to the contract, and the “changes, additions and alterations” therein provided for must have been contemplated and intended to be but such as were incidental to the complete execution of the work as described in the plans and specifications, and therefore of only minor and trifling importance, for otherwise some definite mode of determining what prices should be paid for them would also have been prescribed by the writing. We think any material departure from the plans and specifications with reference to which the contract was made, which resulted in a new and substantially different undertaking, can not be regarded as within the meaning of this language. We think it was only intended to describe and provide against those ordinary and comparatively unimportant departures from the details in the plans and specifications which, during the progress of the work, might become necessary, or at least convenient, to effectually complete the work as it is contemplated by the plans and specifications it should be completed, and which could not, at the date of making the contract, have been certainly anticipated, and therefore provided against. We can not admit that a party entering into a contract to do a given work at stipulated prices, can, by the use of these words in the written contract, be made to do a different and more expensive work at prices to be named altogether, or in large part, by the architect of the other party.

Second—If, after the contract was abandoned by the county, Harms, by his conduct, estopped himself from availing of that abandonment, the county could interpose the estoppel in defence. But in case of abandonment by one party there is no presumption of estoppel against the right of the other party to avaii of it, and hence the law of estoppel is not an indispensable element in the doctrine of abandonment. It may or it may not apply in such cases, and if relied upon, it is matter of special defence. So, here, this instruction presented a prima facie case entitling Harms to recover for the value of the materials furnished and labor performed by him, upon the ground that the contract had been abandoned by the county; and if the county relied upon the fact that Harms was, by his conduct, estopped to say that the contract was abandoned, it should have asked an instruction in its own behalf presenting the law upon that phase of the case. Undoubtedly a proposition which, in and of itself, is not accurate without modification or qualification, if presented in an instruction, should be accompanied with the requisite modification or qualification. But that is not the character of the question before us. Here the proposition, on the assumed hypothesis, is accurate, without modification or qualification. But there may be, and it is claimed there is, in the evidence, sanction for a repugnant proposition, which entirely nullifies that announced. Both, as independent propositions, may be correct, but the latter being correct, the former is rendered inoperative.. The latter, clearly, therefore, should be embodied in a distinct instruction. It is not a necessary element in the instruction previously given, but is a modifying or qualifying circumstance wholly independent of it. The rule is, it is not required that an instruction shall anticipate the existence of hypotheses contrary to that upon the theory of which it is framed. It is sufficient if it rests upon a hypothesis sustained by evidence, and states, accurately and fully, the law upon that hypothesis. If the evidence also fairly presents hypotheses sustaining modifying or repugnant legal propositions, those desiring to avail of such propositions may have them presented in separate instructions.

The next instruction given at the instance of the plaintiff,' to which objection is urged, is as follows:

“Even though the jury should believe, from all the evidence in the ease, that the written contract between plaintiff and defendant, offered in evidence, was not abandoned or rescinded by the defendant, and that the architect, Egan, had the right to fix and determine the value of any work and materials furnished by the plaintiff, and not included in the original contract, plans and specifications, yet if the jury further believe, from the evidence, that in exercising such right the architect acted fraudulently and in bad faith, then such act would not be binding upon plaintiff. ”

It is admitted by counsel for appellant that this, “considered in the abstract, asserts a correct proposition of law,” but they deny that there was any evidence upon which to base it. It is enough to say upon the question thus presented, that we have carefully examined the evidence preserved in the record, and are of opinion there is sufficient evidence upon which to predicate the instruction. Of course, we express no opinion as to the weight of such evidence. It is the architect’s judgment, not his arbitrary will, that the contract makes conclusive on the questions submitted to his decision. There is much here in evidence, which it is not necessary that we should repeat, tending to show that the latter was exercised, and not the former. If it be shown that an architect in making his decision has disregarded important, clearly established or obvious facts, (of which there is some evidence in the record,) the prima facie presumption is that he did so willfully. (Morse on Arbitration and Award, 539.) There is, also, some evidence here of declarations of the architect of a deliberate intention to oppress Harms,— equivocal, it is true, in that - the means were not expressed, but warranting the inference of the intended use of arbitrary will, instead of the exercise of an impartial judgment, in determining the rights of the respective parties on questions arising under the contract.

The next and the last instruction given at the instance of the plaintiff to which objection is urged, is this:

“Even though the jury may believe, from the evidence, the ' contract between plaintiff and defendant, offered in evidence, was not cancelled by defendant, and that any work and materials furnished by plaintiff were extra under such contract, and that the architect had authority to fix and determine the value of such extra work and material, still he could only exercise such right and authority in the manner provided by said contract.”

Three objections are urged: Eirst, that it is left to the jury to determine a matter of law; second, that the jury would be authorized to consider that they must give a verdict on the basis of measurement and'value; and third, that it repels the idea that Harms could waive his right to have an order in writing from the architect, when required to make “changes, additions or alterations” in the work. Neither objection, in our opinion, is well taken. No legal proposition is submitted to the jury. The language is hypothetical, and states what the law is with reference to a hypóthetical case, which it is in effect assumed the defendant may claim is established by the evidence. So far as the instruction refers to the rights of the parties under the contract, it is undoubtedly correct; and it has never been held objectionable to assume as true in an instruction a pertinent matter about which there is no dispute. The jury are not told they must find these things to be facts, or that they must find what the contract is with reference to these things, but merely that although they may believe, etc., the law is as thus announced.

Second—We can not perceive any reason for holding, as contended by counsel, that the inference would result to the jury that they must give a verdict on the basis of measurement and value. The instruction does not assume to direct on what basis a verdict should be rendered. It relates to an entirely different subject. But to obviate all liability to misapprehension by the jury in this respect, as well as in respect to a like objection, not before noticed, taken to the second of the plaintiff’s instructions, the court, at the instance of the defendant, instructed the jury thus :

“The court instructs the jury that if they believe, from the evidence, that the contract entered into on the 6th day of October, 1875, was not rescinded, and by its terms any changes, additions or alterations, if any such should be ordered, should not invalidate or impair the contract, but should be paid for as extra work, or deducted from the original amount of the contract, as the case might be, such extras or deductions, if any, to be subject to the valuation of the architect, whose decisions and valuations of them should be final, and binding upon both parties to the contract, and that said Egan did submit his estimates of the value of them in the manner provided by and in conformity with said contract, then the parties to said contract are bound by his findings, unless the same be fraudulent or mistaken, the burden of proving which rests upon the plaintiff. ”

With this instruction before the jury we do not think, in any view, it is reasonable to suppose that they could have been misled on the question of damages, in the respect contended, by either instruction.

It is contended that there was error in the refusal of the court to give the defendant’s ninth, tenth and thirteenth instructions as asked, and also in admitting in evidence what the architect said he would do for the plaintiff in reference to prices of work or manner of estimating his compensation, and what the building committee said to plaintiff. The rulings in these several respects present but a single question, namely, whether the county, under the circumstances, may be concluded and estopped by the acts and declarations of these' parties as its agents and representatives. That it may be so concluded and estopped is settled by Sexton v. City of Chicago, 107 Ill. 323, City of Chicago v. Chicago and Western Indiana R. R. Co. 105 id. 85, and Chicago v. McGraw, 75 id. 570.

Perceiving no cause to disturb the judgment below, it is affirmed.

Judgment affirmed.


author: Mr. Justice Ceaig

text:
    Cyrus S. Kellogg v. Laura P. Hale et al.

      Filed at Ottawa November 20, 1883.

    1. Trust—when the Statute of Uses executes and passes legal title to the person for whose use made. Where a conveyance imposes on the trustee active duties with respect to the trust estate, such as, to sell and convert into money, or to lease the same and collect the rents, pay taxes, and make necessary repairs, etc., and pay the net proceeds to the beneficiary, it creates an active trust which the statute does not of itself execute.
    2. Where an estate is conveyed to one person for the use of, or upon a trust for, another, and nothing more is said, the statute immediately transfers the legal estate to the use, and no trust is created, although express words of trust are used. This has reference only to passive, simple or dry trusts. In such case the legal estate never vests in the feoffee, but is instantaneously transferred to the cestui que use as soon as the use is declared.
    3. Where a party conveyed real.estate by a deed absolute on its face, but in trust to hold the title, lease the property, collect the rents, sell or reconvey, or make such disposition of the property as the grantor might order, it was held, that the trust created was an active and not a passive one, and the legal title vested in the trustee.
    4. Husband and wife—settlement by husband on wife. It has long been the settled law,' both in England and in this country, that a conveyance of property from a husband to his wife, when made as a provision for her, will be sustained and upheld in courts of equity, when the rights of creditors are not affected.
    Writ of Error to the Circuit Court of Carroll county; the Hon. William Brown, Judge, presiding.
    Mr. J. M. Hunter, and Mr. J. B. Hunter, for the plaintiff in error:
    The effect of a trust conveyance to his own use on the part of Kellogg, was but to divest himself momentarily of the naked legal title, to be reinvested by the operation of the Statute of Uses, and the recorded deed to Peck remained only a cloud upon Kellogg’s estate and title to the land. Rev. Stat. 1845, (Cooke & Co.’s ed.) chap. 24, pp. 958, 959, secs. 2, 3; Witham v. Brooner, 63 Ill. 345.
    The legal estate never vested in the feoffee for a moment, but was instantaneously transferred to the cestui que use as soon as the use was declared. 2 Blackstone’s Com. 332.
    The object of the statute was to abolish uses, by destroying the estate of the feoffee to uses, and vesting it in the cestui que use. 1 Greenleaf’s Cruise on Beal Prop, title, “Use,” chap. 3, pp. 316, 317; Lynch et al. v. Swayne et al. 83 Ill. 336.
    This being so, Peck had nothing to convey, even if he was duly authorized to do so; but if complainant’s wife was, by Peck’s deed, invested with color of title, she became merely feoffee to the use of her husband.

      Mr. James Shaw, for the defendants in error:
    A deed from a husband to a wife should be sustained in equity, when made.as a provision for her, and creditors are not affected thereby. Gifts from husband to wife are valid, when creditors are not injured. The duty of maintenance which a husband owes a wife is a sufficient consideration for voluntary conveyances vesting title in her, and courts of equity will sustain them. Property conveyed to a wife by a husband, or by his procurement, if no fraud is intended on creditors, will be treated as her separate estate. 2 Kent’s Com. 115, (9th ed.) noteb, 2; Schouler on Domestic Relations, (2d ed.) 284, 287; Gill v. Wood, Admr. 81 Ill. 64; Yazel v. Palmer, id. 82; Sheppard v. Sheppard, 7 Johns. Ch. 61; Sunderland v. Sunderland, 19 Iowa, 325; Hunt v. Johnson, 44 N. Y. 27; Sims v. Rickets, 35 Ind. 181; Sayers v. Wall, 26 Gratt. 354; Indianapolis, Bloomington and Western Ry. Co. v. McLaughlin et ux. 77 Ill. 275; City of Chicago v. McGraw, 75 id. 566; Dale et al. v. Lincoln, Assignee, 62 id. 22; Lincoln v. McLaughlin, 74 id. 11; Hockett et al. v. Bailey, 86 id. 74; Cartwright v. Wise et al. 14 id. 417; Pike v. Baker, 53 id. 163; Perry on Trusts, sec. 143.
    If it be admitted that a trust could be established by parol in a case like the present,—and it is not admitted,—even then the complainant could not recover, on account of the unsatisfactory nature of the proofs relied on to establish the trust. -Perry on. Trusts, secs. 137, 226; Woolam v. Hearn, 2 L. C. in Eq. 684; Hill on Trustees, 167; Lantry et al. v. Lantry, 51 Ill. 458; Parker v. Pierce et al. 16 Iowa, 227; Maple v. Nelson, 31 id. 322; Cartwright v. Wise et al. 14 Ill. 417.
    The Statute of Uses has no application to this case. In ■both conveyances,—that from Kellogg and wife to Peck, and from Peck and wife to Laura P. Kellogg,—the legal title and fee passed. Meacham v. Steele et al. 93 Ill. 135; Kirkland v. Cox et al. 94 id. 400; Perry on Trusts, sec. 738; 2 Washburn on Real Prop. sec. 20, p. 120.
   Mr. Justice Ceaig

delivered the opinion of the Court:

This was a hill in equity, brought by Cyrus S. Kellogg, in the circuit court of Carroll county, against Laura P. Hale and others, to compel a conveyance of two hundred and fifty acres of land in Carroll county, which formerly belonged to Kellogg, but which, at the time of filing the bill, was held by the defendant Laura P. Hale, in her name. Kellogg was married to Laura P. Hale in 1848, in Carroll county. They resided there until the spring of 1853, when they moved to California. A short time before starting, Kellogg and his wife conveyed, by an absolute deed, the lands in controversy to Philetus Peck. The lands were not sold to Peck, but the understanding was that he should hold the title in his own name, rent the farm, keep it in repair, and make such a disposition of the lands, by sale or reconveyance, as Kellogg might in the future direct. In the summer of 1857 Mrs. Kellogg returned to Carroll county on a visit. She brought with her a letter, written by Kellogg to Peck, directing him to convey the Carroll county lands to her. Upon the presentation of the letter Peck conveyed the lands as requested, and Mrs. Kellogg has from that time to the present owned and received the rents from the lands, and paid the taxes, and kept up the repairs. At the time the deed was made to Mrs. Kellogg, she and her husband were residing together on good terms, and they continued to reside together until 1865, when they separated. In 1871 she obtained a divorce from her husband, and subsequently married Augustus Hale.

Kellogg, the complainant, seeks to obtain a decree in' his favor, as we understand the argument, on the ground that the deed from Kellogg to Peck was a conveyance to his own use, and under the Statute of Uses, by operation of law, he became reinvested with the title to the property. The trust here was not in writing. The deed was absolute in terms, and purported to convey the title to Peck, but when the transaction is viewed in the light of the evidence, it appears that the property was conveyed to Peek in trust. He was to hold the title, lease the property, collect the rents, sell or reconvey, or make such disposition of the property as Kellogg might order. Was this such a trust as the Statute of Uses would execute ? The answer to this question may be found in the former decisions of this court.

In Meacham, v. Steele, 93 Ill. 146, where a question of this character was under consideration, it is said: “Where the conveyance imposes on the trustee active duties with respect to the trust estate, such as, to sell and convert into money, or to lease the same and collect the rents, issues and profits thereof, and -pay them over to the beneficiary, it creates a trust which the statute does not execute. ” Here Peck, the trustee, had the entire charge of the property. It was his duty to rent, and collect the rents, pay the taxes, keep up the repairs, and in addition to this, upon request, sell and convey the property. The facts seem to bring the case directly within the rule announced in the ease cited. •

In Kirkland v. Cox, 94 Ill. 400, the effect of the Statute of Uses was under consideration, and it was held where an estate is conveyed to one person, for the use of, or upon a trust for, another, and nothing more is said, the statute immediately transfers the legal estate to the use, and no trust is created, although express words of trust are used. But this has reference only to passive, simple or dry trusts. In such case the legal estate never vests in the feoffee, but is instantaneously transferred to the cestui que use as soon as the use is declared. The facts surrounding the conveyance in this case do not bring the trust within what may be called a passive, simple or dry trust. The duties of the trustee had not been performed under the trust imposed by the 'deed and contract. Those duties were active, and so continued until ~ the lands were conveyed, under the order and direction of Kellogg. Perry on Trusts, sec. 305, in speaking in regard to Special or active trusts, says: “If any agency, duty or power be imposed on the trustee, as by a limitation to a trustee and his heirs to pay the rents or to convey the estate, or if any control is to be exercised or duty performed by the trustee, * * * the operation of the statute is excluded, and the trusts or uses remain mere equitable estates. ” But the citation of other authorities on the question is useless. We are satisfied that the deed made to Peck passed the title to the property to him, unaffected by the Statute of Uses.

The only other question to be considered is, whether the -deed from Peck to Mrs. Kellogg, made under the order and direction of Kellogg, passed the title to the property to Mrs. Kellogg. It is true that no consideration -was paid for this conveyance, but when the deed was executed Kellogg was free from debt, and was worth, over and above the Carroll county lands, somewhere in the neighborhood of $20,000. He had no children, and the business in which he was engaged at the time was somewhat hazardous. Under such circumstances, if he thought proper to make a settlement of the property on his wife he had a right to do so. It has long been settled, ‘both in England and this country, that a conveyance of property from the husband to the wife, when made as a provision for her, will be sustained and upheld in courts of equity, when the rights of creditors are not affected. (Moritz v. Hoffman, 35 Ill. 553; Yazel v. Palmer, 81 id. 82; Hockett v. Bailey, 86 id. 76.) As to the object of this conveyance there can be no doubt. At the time, Kellogg was in good circumstances, in no manner involved. The relations then existing 'between him and his wife were of the most intimate character. He no doubt thought it was an opportune time to settle upon her such an amount of property as would give her a comfortable support, if in the future adversity should overtake him and he should be without property.

We are not, however, without proof in regard to the object of the conveyance. Mrs. Hale, in her evidence, says: “Kellogg, at the time he wrote to Peck requesting him to convey the land to me, stated to me that I had always been a good wife, and that to insure me from coming to want by reason of any business reverses he might sustain in California, he intended to have Peck deed that land to me, to secure me from coming to want through any7 reverses that might come to him. It was his own voluntary act, without any solicitation from me whatever. There was no arrangement by which I was to hold the land for Kellogg, but it was understood to be for myself.” This testimony places the character and object of the transaction beyond dispute. The conveyance to Mrs. Kellogg was the result of the voluntary act of the complainant, her then husband, and ivas intended as a provision for her, and we perceive no ground upon which a court of equity can interfere, and at this late day take the property away from her and give it back to the complainant.

The decree of the circuit court will be affirmed.

Decree affirmed.