author: Mr. Justice Sheldon Mr. Justice Scott,

text:
    Margaret A. McMahill v. Estate of William McMahill.

      Filed at Ottawa

      March 24, 1885.

    1. Widow’s award—of the conditions on which it rests—and rights of widow concerning it. The widow’s award given by section 74, chapter 3, of the Bevised Statutes, does not depend upon her having a family. She is entitled to more, however, if she has a family, and the amount is graduated according to the size of the family; but the award, whatever may be its amount, belongs to the widow as her sole and exclusive property, and this being so, she may release her award by accepting another provision in lieu of the same.
    2. Same—how affected by an ante-nuptial agreement providing for an allowance in lieu thereof. Two persons, just before their marriage, entered into an ante-nuptial agreement that neither one should have any interest in the property of the other, except that the wife, and her two children by a former marriage, were to be supported, the contract providing, however, that if the wife should survive the husband she should be entitled to $1000 from his estate, in lieu of dower, homestead, widow’s award, and share in his estate of every kind and nature, and nothing more. After the husband’s death she accepted the $1000: Held, that she was not entitled to any set-off of a widow’s award.
    3. Same—former decision distinguished. In Phelps v. Phelps, 72 Ill. 545, it was held that a widow’s award in her husband’s estate could not be barred by an ante-nuptial contract. This was based upon the ground of his legal liability to support his wife and children; but the reason of the rule in that case fails when the husband dies leaving no child having any legal claim on him for support, and these cases are in that regard to be distinguished.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Warren county; the Hon. John J. Glenn, Judge, presiding.
    Messrs. Porter & Porter, for the appellant:
    The law providing for a widow’s award is an “exemption” law, and should be liberally construed. Const. 1870, art. 4, sec. 32; Race v. Oldridge, 90 Ill. 250; Recht v. Kelly, 82 id. 147; Phelps v. Phelps, 72 id. 545.

      Taking this case as it appears from the record, we maintain that the law cast this property on the widow for the benefit of herself and her family, and that any attempt to waive it by an executory contract is contrary to public policy, and therefore inoperative, and should not be enforced. Recht v. Kelly, 82 Ill. 149.
    We think we may arrive at the same conclusion in either of two different ways: First, by considering her as left the head of his family; or, second, considering her as left the head of her own family. On the first point we say, that by taking her children into his family, according to the terms of the contract they stood in the relation of children to him, and he, thus standing in loco parentis, became subject to the same duties towards them as towards his own children, so long as they remained in his family. 2 Kent’s Com. 192; Reeve on Domestic Relations, 416, note.
    On the principles laid down in Strawn v. Strawn, 53 Ill. 263, the children certainly come within the meaning of the word “family.” In that case the court held that the word “family” included “a young woman raised in the family,” a “housekeeper,” a “cook,” a “man-servant,” and a “man who acted as superintendent of a farm. ” As to what constitutes a family, see Thompson on Homesteads, secs. 44, 45; Race v. Oldridge, 90 Ill. 250.

      Brenner v. Gauch, 85 Ill. 368, is a case where an ante-nuptial agreement was set up as a bar to the widow’s award. There is no statement showing that the widow was left the head of any family whatever. The inference fairly is that she was not, and there is nothing settled in the ease except merely that the execution of the contract did not affect her right to the “award” until the consideration was received. It might as well be claimed that this latter case overruled Phelps v. Phelps or Recht v. Kelly, as that it settled this case, or affected it in any manner. The matter is fully discussed in Thompson on Homesteads and Exemptions, chap. 2, sec. 53, et seq.

    That courts have always held that exemption laws should be liberally construed, is also plain, but we append a few authorities on that point: Leavitt v. Metcalf, 2 Ver. 342;

      Dow v. Smith, 7 id. 465; Hall v. Sutherland, 14 Barb. 459; Allen v. Cook, 26 id. 379.
    Messrs. Stuart & Stuart, and Mr. R. J. Grier, for the appellees:
    The part of said award allowing the widow $100 for family pictures, jewels, etc., is expressly forbidden by the statutes of this State. For these reasons this widow’s award would have to be set aside, as the court has no power to modify it. Marshall v. Rose, 86 Ill. 374.
    The appellant in this case is not entitled to any award on account of the ante-nuptial agreement entered into between her and the said "William McMahill, deceased, in which it is elearly set forth that if appellant survives the said William McMahill, “she shall be entitled to $1000 in cash from the estate of the said William McMahill, in lieu of dower, homestead, widow’s award, and share in his estate of whatever kind or nature, and no more.”
    Ante-nuptial agreements in regard to property rights have received the repeated sanction of the courts of this State. Phelps v. Phelps, 72 Ill. 545; Jordan v. Clark, 81 id. 465; McGee v. McGee, 91 id. 548.
    Ante-nuptial agreements are to be construed liberally for the purposes which they are intended to accomplish. Phelps v. Phelps, 72 Ill. 546.
    ■ Not only has this ante-nuptial agreement been decreed by the courts to be valid and binding on appellant, but she has accepted the $1000, with interest, and thereby she is effectually estopped. Brenner v. Gauch, 85 Ill. 368; Cowdry v. Hitchcock, 103 id. 262.

      A step-father, by the laws of this State, is under no legal obligation to support his wife’s children by a former marriage, even while he and they are both living. Bond v. Lockwood, 33 Ill. 212; Altridge v. Billings, 57 id. 489.
   Mr. Justice Sheldon

delivered the opinion of the Court :

This is an appeal from a judgment of the Appellate Court for the Second District, affirming a judgment of disallowance of a “widow’s award,” rendered by the circuit court. . The facts in the case were agreed upon by the parties, and are as follows:

Margaret A. McMahill, the appellant, on October 7, 1879, being a widow, named Margaret Kelly, entered into an agreement in writing with William McMahill, he being a widower, at which time they each had both real and personal property, and each had children by former marriage, his being all of age, not residing with him; her two children, both minors, were residing with her, aged, respectively, twelve and fourteen years. The agreement was as follows :

“This indenture, made and entered into by and between Eev. William McMahill, of one part, and Margaret Kelly, of the other part, both of the county of Warren, in the State of Illinois : Witnesseth, that in consideration of a marriage about to be entered into by and between the said parties, it is agreed that neither party shall, by reason of said marriage, have any right, title or interest in the property of the other during their joint lives, nor afterwards, except that the said Margaret shall live with the said William with her two children, and be supported by him. William is to instruct said children while they stay with him, as a father, and not charge them anything, nor shall there be any charge for the labor of said children. In case the said Margaret survives the said William, she shall be entitled to $1000 in cash from the estate of the said William McMahill, in lieu of dower, home-
stead, widow’s award, and share in his estate of whatever kind or nature, and no more.
“Witness our hands and seals, this 7th day of October, A. D.. 1879.
William McMahill, [Seal.]
Margaret A. Kelly. [Seal.] ”

The parties were married on the 7th day of October, 1879, after the making of said contract. They lived together, and the wife’s two children with them, till June, 1881, when William McMahill died, leaving her, his widow, and eight children, his heirs, by his former marriage, all of age, and residing away from his home. There was no child born of the marriage between appellant and the deceased. Both her children by=hsr_former marriage lived with them from the time of their said marri3Tge, and had been kept by him according to the contract, and resided with them at the time of his death. The appraisers of the estate estimated the value of the specific articles of personal property allowed by the statute to the widow, and known as the widow’s award, at $1279.50. The county court disallowed the widow’s award, and the order of disallowance was affirmed by the circuit and Appellate courts. After the decease of William McMahill, appellant accepted from his heirs the $1000 named in the written contract. The only question presented by the record is, whether the widow was barred of her widow’s award in the estate by' reason of her ante-nuptial agreement.

This same contract was before this court in the case of McMahill v. McMahill, 105 Ill. 596, on the question whether it was a bar of the homestead right, and it was held not to be, for the reason that the homestead right could only he extinguished in the mode provided by the statute, and that an ante-nuptial agreement was not such a mode.

In Phelps v. Phelps, 72 Ill. 545, where the decedent left a widow, and a minor child of his own, it was held that an ante-nuptial agreement would not bar the widow’s award, because the latter was a statutory provision charging the husband’s estate with the support of his widow and his children residing with her, for the period of one year after his death, (one item thereof being, “provisions for herself and family for one year, ”) and one of which the husband could not deprive his wife and children no more than he could release himself of his obligation to support them while living. It was the legal obligation for the support of his own children, which he could not defeat. But in the present case there are no children of the decedent left with the widow. The two children are those of another,—of the widow and another husband. They are strangers, as regards maintenance, to the decedent, upon whom the law imposed no obligation for their support. As was said by this court in Brush v. Blanchard, 18 Ill. 47: “The husband is not, from the fact of marriage with the mother of minor children, bound to support them. As to him, so far as any obligation arising out of the marriage is concerned, they are strangers. He is not entitled to their custody or labor, nor is he bound to provide for them.” All of obligation there was upon the decedent for the support of these children was a contract obligation, and that terminated with his life. After his death, whatever of charge there may be supposed to be upon his estate for the support of any minor children, wre regard as limited to his own children, where there was the legal obligation of support, and as not extending to the children of another.

Much stress is laid upon the use of the word “family, ” in the provision as to the widow’s award, and urging that it is the widow and family to whom the award is given, and that it matters not whether the family be that of the decedent or of the widow. So far as there may be deemed any obligation of support, we think it confined to the decedent’s own family, These children, though in his family, were not a part of his family proper,—they were there under and in pursuance of a contract that the decedent should support them there while he lived. The legal obligation for their support was upon their mother, and there was where such obligation rested after decedent’s death.

The public policy is dwelt upon of the maintaining of such a provision for the support of minor children in their helplessness. Anything of public policy in this respect we think is satisfied by making the burden for support to follow legal obligation in that regard, without requiring that the property of a decedent shall be diverted from his creditors and his own children, and go for the support of another person’s children. Section 74, chapter 3, of the statute, allowing said award to the widow, says it shall be “her sole and exclusive property forever,” and it applies to any widow. She need not have any family to get the award, but she is to receive more if she has a family, and the amount is graduated according to the size of the family; but the award, whatever may be the amount, belongs to the widow as her sole and exclusive property.

We regard the widow’s award, here, as exclusively her own property, as for the benefit of herself, and to aid her in the support of her own children, of whom she is the natural supporter, and that it was within her competency to release the award, as she did, by her ante-nuptial agreement; that such release would not be in interference with any supposed legal obligation or burden which the statute imposes upon the husband or his property for the support of his minor children, or with any imagined public policy. Besides, after the right to the widow’s award in this case had accrued, and the specific articles- thereof had been- designated and appraised, appellant accepted the $1000 which the ante-nuptial agreement expressly declared should be in lieu of dow-er, homestead, widow’s award, and share in decedent’s estate of whatever kind or nature. At that time the award was the sole and exclusive property of the widow, declared by the statute so to be. She had the full power of sale and disposition of it, and we are of opinion her acceptance of the $1000 should be viewed as having the same effect as if she had then made a sale of the articles embraced in the award, and received the purchase money therefor.. See Weaver v. Weaver, 109 Ill. 225. The judgment of the Appellate Court will be affirmed.

Judgment affirmed.

Mr. Justice Scott,

dissenting:

When a case between these same parties was before this •court at a former term, it was held the ante-nuptial agreement between the decedent and his surviving widow did hot bar or cut off her right of homestead in the premises on which she and her husband resided after their marriage. That was all the question that was then decided by the court. (McMahill v. McMahill, 105 Ill. 596.) The question now presented is, whether the. ante-nuptial contract bars the widow’s award. I am of opinion it does not. It has been frequently held by this court the widow’s award is for the benefit of the widow and. the family, and that the policy of the law forbids the parties releasing the same by ante-nuptial agreement. Phelps v. Phelps, 72 Ill. 545, McGee v. McGee, 91 id. 548, and other cases.

It appears from the stipulation in the record, that in the former suit commenced by the heirs of the decedent for partition of the land of which he died seized, the decree denied the widow’s right to homestead and dower in the lands, by reason of the ante-nuptial agreement; that the heirs brought into court the $1000 mentioned in that contract, and tendered the same to the widow, and that after the circuit court decided she was barred of dower by the provisions the agreement, but not of homestead, she accepted the $1.000 so tendered, and receipted to the clerk of the court for the same. It is now insisted the acceptance of the $1000 as tendered in the former suit, bars the widow’s award, as well as her dower in the lands of her deceased husband. It is conceded if there had been children by the marriage of the parties, that under the decision of this court in Phelps v. Phelps, the ante-nuptial agreement would have constituted no bar to the widow’s award. The objection in this case runs on the ground the widow had no family residing with her at the time of her husband’s death, whom he was under any obligation to support. That, it is thought, is a misapprehension of the facts of the case. It is true that all of decedent’s children by his former marriage were of age, and none of them resided with him at the time of his death, and it is also true he had no children by his marriage with claimant in this case; but it appears the widow had two children by a former marriage residing with her, and constituting a part of her husband’s family- at the time of his death,—one twelve and the other fourteen years of age. Under the decision of this court in Race v. Oldridge, 90 Ill. 250, these children constituted a part of the family of decedent. Strawn v. Strawn, 53 Ill. 263.

But it is said he was under no obligation to support these minor children of his wife by her former marriage, although they did in fact constitute a part of his family, and hence, it is said, the case is not within the principle of Phelps v. Phelps, and other cases in this court. That is not true, either in law or fact. It is recited in the ante-nuptial agreement: “That neither party shall, by reason of said marriage, have any right, title or interest in the property of the other during their joint lives, nor afterwards, except that the said Margaret shall live with the said William with her two children, and be supported by him. William is to instruct said children while they stay with him, as a father, and not charge them anything, nor shall there be any charge for the labor of said children. ” This is an absolute undertaking on the part of the decedent to make the children of claimant residing with them, members of his family. He assumed to them the relation of a father, and in consideration no charge was to be made for their labor he obligated himself to give them support and instruction without charge. What more could he do to make them members of his family as they would have been had they been his own children ? By the ante-nuptial agreement he assumed the same relation to them the law imposed upon him in regard to his own children residing with him. These children had arrived at the ages, respectively, of twelve and fourteen years,—an age when they might be expected to render services in the family, of which decedent had the benefit, of very considerable value; and especially would that be true if he had lived until they had become of age. In that event it would have been a favorable contract for him. But whether the services were of much or little value, such services were a sufficient consideration for the undertaking of decedent to make them members of his family, and entitle them to the same support and instruction that his own children would be at his hands. The claimant here surrendered to her husband all benefits of the labor of her minor children, in consideration they should be made members of his family, and receive from him support and instruction such as a father would give his own children, and now that h<- had the benefit of that contract during his lifetime, it is but just his estate should bear the burden of it. The other heirs have no just ground for complaint. It was a contract the decedent could lawfully make, and one the policy of the law favors. Assuming, then, as ought to be done, the minor children of claimant were members of decedent’s family, and still resided with her, she is clearly entitled to the widow’s award, precisely in the same way as she would have been had there been minor children of herself and late husband. No just distinction can be taken.

The judgment, in my opinion, ought to be reversed.


source: Caselaw Access Project

author: Mr. Justice Scott

license: Public Domain

text:
    Daniel W. Barr v. The People of the State of Illinois.

      Filed at Springfield

      March 30, 1885.

    1. Criminal law—assault with intent to commit rape—of the proof •necessary to convict. Before one can be convicted of an assault with intent to commit a rape, it must appear, from the evidence, that he made an unlawful assault upon the prosecutrix, with intent feloniously and forcibly to ravish and carnally know her against her will.
    2. An instruction which may be held to imply that the jury may find the defendant guilty of an assault with intent to commit a rape upon a woman if he simply made an unlawful assault without such criminal intent, is positively bad, such not being the law.
    3. Same—of an instruction on the subject—as omitting an essential element, and assuming a material fact. On the trial of one for an assault with intent to commit a rape, the court instructed the jury as follows: rjTho jury are instructed, that if you believe, from the evidence, beyond a reasonable doubt, that the defendant made the assault as charged in the indictment, then, even though you believe, from the evidence, defendant afterwards held Mrs. B., * * * and they talked about S., then such subsequent talk could not justify or excuse the prior assault:” Held, that the instruction was erroneous. If the words, “made the assault, ” be referred to the words in the indictment that he made an “unlawful assault,” and nothing more, it was bad, as omitting the criminal intent; and if they refer to an assault with intent to ravish, as charged, it is still more erroneous, in assuming there was a prior assault made.
    4. Same—of matters connected with an offer of defendant to compromise. On the trial of one for an assault with intent to commit a rape, it is proper for the prosecution to prove that the accused sent a party to the father of the prosecutrix, who was a married woman, to ascertain if the case could be compromised; but it is not proper to prove that the father said, in reply, that he had two farms, and that he would spend them both before he would compromise the case.
    Writ of Error to the Circuit Court of Mason county; the Hon. George W. Herman, Judge, presiding.
    Mr. H. W. Masters, for the plaintiff in error.

      Mr. George Hunt, Attorney General, and Mr. T. N. Mehan, State’s Attorney, for the People.
   Mr. Justice Scott

delivered the opinion of the Court:

Plaintiff in error was indicted at the August term, 1883, of the Mason county circuit court, for an unlawful assault upon Hester A. Rohlfing, with intent to commit a rape upon her person. There seem to have been two trials of the case in the circuit court. On the first trial the jury failed to agree upon a verdict, and were discharged; but on the second trial, which was had at the February term, 1884, of the Mason county circuit court, the accused was found guilty, and sentenced to the penitentiary for a period of three years. As it does not appear any supersedeas was granted in the cause, it would seem the accused is now, and has been since his conviction, in the penitentiary, under the judgment of the court.

No evidence, other than that introduced by the People, was submitted to the jury on the trial of the cause. Defendant did not testify in his own behalf, nor did he offer any testimony whatever. Before the accused could be rightfully convicted, it should appear, from the evidence, he made an unlawful assault upon the prosecuting witness, with intent, feloniously and forcibly, to ravish and carnally know her against her will. Taking the account given of the affair by the prosecuting witness as the one to be most relied on, no very severe assault was made upon her by the accused. At the time the assault was made,, it appears her husband was somewhere on the farm, and was at home during the day after it occurred, and although she and her husband slept at home the night after the assault, alone, with no one in the house except their little child, she never mentioned to him. the fact the accused had assaulted her. The People gave in evidence the admissions of defendant made to John Otto, from which it appears that after the accused stopped at her house on that day, he and the prosecutrix talked about some matters relating to the possession of the farm she and her husband occupied, in which it seems a man by the name of Spilker was interested, and that he told her in the same conversation, in substance, if she would submit to his desires he would pay her for it. The conversation which the prosecuting witness herself says' he had with her during the time the accused had hold of her, tends much more to show he intended to persuade her to submit to his guilty embrace rather than to carnally know her forcibly and against her will, which is necessary to constitute the offence with which he is charged. The intent, however, with which the unlawful assault is made in such cases is usually a question of fact for the jury to find, and with which the court seldom interferes.

But there are two reasons why it is thought the present judgment should be- reversed:

First—It was improper for the court to permit the witness Lane to testify as to the conversation he had with John B. Tenny concerning the effort made to “compromise the case.” It was proper to prove, as was done, the accused sent Tenny to Lane to ascertain if the case could be'compromised, but wdiat Lane said about having two farms, and that he would spend them both before he would “compromise the case,” was not proper evidence, and may have been prejudicial to the accused.

Second—It was error in the court to give for the People the thirteenth instruction, which is as follows:

“The jury are instructed, that if you believe, from the evidence, beyond a reasonable doubt, that the defendant made the assault as charged in the indictment, then, even though you believe, from the evidence, defendant afterwards held Mrs. Bohlfing, * * * and they talked about Spilker, then such subsequent talk could not justify or excuse the prior assault. ”

It will be observed the indictment charges the accused made an “unlawful assault” upon the prosecuting witness, and then it is added: “With intent * * * feloniously and forcibly to ravish and carnally know” her “against her will.” If the words used in the instruction, “made the assault,” shall be referred to the averment in the indictment the accused made an “unlawful assault” upon the prosecutrix, and nothing more, then the charge of the court was positively bad, for it would seem to imply the jury might find defendant guilty if he simply made an “unlawful assault” upon her, without the criminal intent to commit a rape upon her person, which is not the law. But if the words, “as charged in the indictment, ” shall be understood to enlarge the meaning so that the jury should be required to believe the accused “made the assault with intent * * * feloniously and forcibly to ravish and carnally know” the prosecutrix “against her will,” then the instruction is still more vicious, for it will be seen it assumes, by the phraseology employed, that “a prior assault” had been made upon her,—that is, “a prior assault” with the intent to commit a rape upon her person. This was clearly error. Certainly, if the words, “made the assault, ” as used in the beginning of the instruction, mean an “unlawful assault” wdth that criminal intent necessary to constitute the crime with which the accused is charged, then the words “prior assault, ” as used in the sequel of the same instruction, must mean the same thing. It was not within the rightful province of the court to assume as a'fact, and so declare to the jury, a “prior assault” was made, nor with what intent it had been committed. The law has made it the duty of the jury to find such facts from the evidence, and it was error for the court to assume to interfere with the discharge of that duty.

It is fit to remark the jury must have been very much confused by the unusual number of instructions that were given on behalf of the People, and also on behalf of defendant. The facts in the case are not numerous, and as to most of them no controversy is made. The law applicable to the case is simple, and well understood even by persons not claiming to be educated in the law, and yet the court was asked to and did give sixteen instructions for the People and twenty-six for defendant. It is quite obvious the practice of giving so many instructions tends rather to defeat than aid the administration of either the criminal or civil law.

The judgment of the circuit court will be reversed and the cause remanded.

Judgment reversed.


author: Mr. Justice Walker

text:
    Henry Gardt et al. v. George W. Brown et al.

      Filed at Ottawa

      March 24, 1885.

    1. Construction of contract—two instruments construed together. "Where two written instruments are executed as the evidence of one transaction, they will be read and construed together as one instrument, in arriving at the intention of the parties.
    2. Same—in the case of a deed and lease—as to the use of the leased premises in connection with the premises conveyed. The owner of a hotel sold a strip of land in the rear of the hotel, on which to erect a building for a dram-shop, and at the same time leased to the purchaser two rooms in the basement of the hotel for five years, to be used for billiard rooms in connection with the saloon. The deed for the strip of ground contained a clause that the grantee should have the right to use the south wall of the hotel building to join the roof of the building he might erect, and should also have the privilege to cut a door through from such building into the basement rooms of the hotel. It was held, that the clause in the deed and the written agreement for the lease should be construed together, and when so construed gave the grantee no right to maintain the door from his saloon into the basement of the hotel after the expiration of his lease of the basement rooms.
    3. Same—parol evidence in explanation of a contract in writing. In some cases parol evidence "is admissible to show the purposes and circumstances under which a written contract was entered into by the parties, but never to vary, alter or contradict its terms. The parties are not allowed to testify to their intention and understanding of a written agreement, but it must speak for itself. .
    4. Chancery practice — dismissal of bill on dissolving injunction. There is no error in dismissing a bill in chancery on the hearing of a motion to dissolve an injunction granted thereon, where the bill, on its face, shows no right to equitable relief.
    5. Same—election to treat an order as a dismissal of bill. An order of a court in a suit for an injunction, etc., was, that the temporary injunction be dissolved; and further, that if the complainant desired to take an appeal, the bill be dismissed: Held, that by appealing from the order, the complainant elected to have his bill dismissed, and could not urge the dismissal as error.
    Appeal from the Circuit Court of Knox county; the Hon. George W. Pleasants, Judge, presiding.
    Messrs. McKenzie & Calkins, for the appellants.
    Messrs. Willoughby & Dougherty, for the appellees.
   Mr. Justice Walker

delivered the opinion of the Court:

It appears from the record that G. Henderson and P. Holstrom, prior to July 20, 1878, had leased two rooms in the basement of Brown’s hotel, in Galesburg, in this State, in which they kept a dram-shop and billiard saloon. Their lease was about expiring, when it was agreed the owners of the hotel would sell to Henderson a strip of ground in the rear of the hotel, on which to erect a building for a dram-shop, and to lease the two rooms at a reduced rent, and to permit Henderson to cut a door in the wall between his saloon building and these rooms. The arrangement was made, and the deed conveying the property was executed, giving permission to Henderson to join his saloon building to the hotel, and to cut the door in the wall between it and these rooms. At the same time, the lease was executed for the two basement rooms, for five years, commencing the 20th of August, 1878, and ending August 20,1883. Henderson erected his building, and occupied it as a dram-shop, cut the door connecting the dram-shop with the two basement rooms, and occupied them as a billiard saloon until the lease expired. When the lease expired, the owners of the hotel declined to renew the same, but- permitted Henderson to occupy the rooms by the month. About the 1st of April, 1884, the owners of the hotel agreed to lease these rooms to Case, the proprietor of the hotel, and some time in that month Henderson sold his saloon property to Gardt, Frohlich & Nurdlinger, the appellants. On the last day of April, 1884, the owners of the hotel demanded the possession of the basement rooms, and on the 7th of May following, Henderson surrendered possession and returned the keys of the rooms. On the same day, the owners of the hotel proceeded to close the door, but were prevented by force. Subsequently appellants filed a bill and procured a temporary injunction restraining the closing up of the door, or from in any manner interfering with it, or from preventing ingress or egress to and from appellant’s building by way of the basement rooms. An answer was filed, and a motion entered to dissolve the injunction, which motion was heard on bill, answer and affidavits, and an order was entered dissolving it, and dismissing the bill.

It is insisted the cpurt erred, because it is claimed that the provision in the deed is a covenant that runs with the land. The clause of the deed relied on is as follows: “Said Henderson shall have the right to use the south wall of said hotel building to join the roof of the building that he may erect; also, to have privilege to cut a door through from the building that he may erect, into the basement of the hotel, situated in the county of Knox, in the State of Illinois.” The deed and lease were a part of the same agreement, and in ascertaining the intention of the parties they must be considered together. No rule of interpretation is more familiar, than when two instruments are executed as the evidence of one transaction, they shall be read and construed as one instrument. Then, when the deed and lease are read together, what was the purpose of the parties as manifested by these instruments ? Henderson was purchasing this ground on which to erect a building for the purpose of a dram-shop. He was leasing these rooms in the basement for the purpose of a billiard saloon. By opening this door in the wall of the hotel it established a communication between the dram-shop and the billiard saloon, which was no doubt intended to increase the custom of both during the continuance of the lease. It was for the better and more profitable enjoyment of the lease that Henderson was given permission to cut the door in the wall. The door was manifestly ancillary, or an appendage, to the lease, and for its more commodious enjoyment. Had this provision been embodied in the lease, we suppose no one would have doubted the proposition; and yet it is as manifest such was the intention of the parties, although found in the deed. Can any one imagine that the owners of the hotel intended to bind themselves to lease the rooms perpetually on the same terms, and for the same purpose, to Henderson and his grantees ? Surely not. Or that they were binding themselves to forever keep the house as a hotel ? Such a construction would be manifestly against the inten-" tion of the parties. Nor is it any more reasonable to suppose they intended to covenant that the door should continue perpetually, when it could not be of the slightest benefit to appellants, as with the expiration of the lease all their right to enter the rooms terminated, absolutely and unconditionally. Nor is it claimed that the owners of the hotel have no right . to shut off all access to these rooms from all other quarters; and if so, what possible benefit can appellants derive from keeping it open ? Absolutely none. The law will not interfere to enforce a mere barren right, if they had such, and that seems to be all that is claimed. There can be no question that appellees may cut off all access to these rooms other than by this door. That does not"seem to be denied. Nor is there anything in the deed from which it can be inferred that the owners undertook to keep any pass-way from the hotel, or from the outside of the building, open, to these rooms.

If the claim of appellants is well founded that this door must be kept open that guests may have access to the dram-shop from all parts of the hotel, then appellants have acquired these basement rooms as a pass-way for all time to come. It is wholly unwarrantable to infer that either party supposed that such was the effect of the deed. Business men do not so act, and had it been their intention it would have been so expressed. The only reasonable inference from the language of the deed is, that it was intended to enable the lessee to enjoy his term with more advantage and profit during its continuance, and to terminate with the lease,—that the privilege of using the door was coextensive only with the lease, and terminated with it. The construction contended for would virtually give appellants the control of appellees’ property. It would deprive them of the right to appropriate the hotel building to any other use. The presumption that the parties so intended is so utterly improbable that no strained construction will be indulged to reach such a conclusion, and to do so, such a construction must be adopted, or rather without anything to warrant such a conclusion by any kind of rule of interpretation.

Affidavits were filed to explain the intention of the parties when these instruments were executed. All know that it is an inflexible rule that when parties reduce a contract to writing, the presumption is it speaks their intention, and the rule excludes all extrinsic evidence to change or vary the intention as expressed in the written agreement. In some cases verbal evidence is admissible to show the purposes and circumstances under which the contract was entered into by the parties, but not to vary, alter or contradict its terms. From the affidavits filed, the purpose seems to have been not to accommodate the dram-shop alone, but both it and the billiard saloon, jointly, and if so, then, when the lease expired and the billiard saloon was ended, the joint purpose ended, and when that occurred, one of the main purposes of licensing the opening of the door had been accomplished, and the joint purpose was fulfilled, and being so, the privilege came to an end. Parties in such eases can not change agreements by testifying to their intention or understanding of a written agreement. It must speak for itself, and that intention must be gathered from the language the parties have employed to express that intention. If a mistake has occurred in drafting the contract, contrary, in any particular, to their intention, the parties may, by bill, reform the agreement. But nothing of the kind is alleged in the bill in this ease, and we must look to the agreement itself for its meaning, and when ascertained it will be enforced.

It is urged that the court, on dissolving the injunction, should have retained the bill for a hearing on evidence. We are unable to perceive any reason for doing so, because the hill on its face disclosed no equity, and unless it had been amended it would have been useless to retain it for any purpose. The bill, as framed, involved only the construction of the deed and lease, and that arose on the bill. It was therefore improper to retain the bill, as to have done so would only have resulted in increased costs. Appellants have treated the decree as final, and had they not, their appeal would be dismissed. The circuit judge who tried the case made this order: “The order is, that the injunction be dissolved; and further, if complainants desire to take an appeal, that the bill be dismissed. ” It was then optional with appellants to have the bill retained or to consider it as dismissed. By appealing they chose to have it dismissed, and having made the election they must be held to their choice.

After a careful examination of the, entire record and arguments in the case, we are unable to perceive any error, and .the decree of the court below is therefore affirmed.

Decree affirmed.

      Per Curiam: The opinion in this case was prepared by the late Mr. Justice Walker, but in consequence of his illness at the January term, 1885, it was not read and considered by the other members of the court during his lifetime. The case was continued under advisement until the March term, 1885, when the opinion was read and concurred in by a majority of the members of the court, and it was then adopted, and ordered to be filed as the majority opinion of the court, a minority of the members of the court not concurring therein.


author: Mr. Justice Dickey

text:
    Christopher B. Bouton v. A. D. Smith et al.

      Filed at Ottawa

      March 24, 1885.

    1. Chancery—bill for a discovery—whether other relief may be sought thereby. A creditor’s bill against an insolvent corporation and its officers and stockholders may, in addition to seeking a discovery of assets, properly seek to have certain payments made by the corporation to others of the defendants therein, adjudged fraudulent as to the complainants, in which case it is proper, on a failure as to the discovery, to retain the bill as to the other-relief sought.
    2. Preference of creditors—whether allowable—of the voluntary payment where a'debt is not legally subsisting. The payment to one stockholder of a private corporation for advances or loans made by him to the corporation, and interest thereon, by the transfer of notes and accounts, is not fraudulent as to other creditors of'the corporation. At most it is but a preference of one creditor over others, which the law allows.
    3. ’ But the payment by an insolvent corporation to a stockholder, of a demand which is not a legally subsisting debt capable of being enforced by suit, is a mere gift, and fraudulent as to bona fide creditors.
    4. Fraud as to creditors—if contract avoided by the creditors, effect as to binding force of stipulations as between the parties to the contract. Where a stockholder of an insolvent private corporation accepts notes and accounts of the corporation at a certain per cent discount on their face, in payment of a legal debt owing him from the corporation, and also in payment of a large sum for services rendered voluntarily by him for the corporation under no contract for compensation, (which payment as to the latter is fraudulent as to creditors,) while he may not himself avoid the contract, yet if the same is avoided by creditors it will* no longer bind him as to the prices at which he received the notes and accounts, but he will be chargeable with the sums actually received by him on them, and the actual value of the remainder over and above his just demands, or if he will render a full account of the net proceeds of such securities and demands as he has converted into money or disposed of, and turn over the balance to a receiver, hp will be required to refund only the excess of the net receipts over and above his just legal claim upon the corporation.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    This was a creditor’s bill, filed in the Superior Court of Cook county on July 23, 1880, by A. D. Smith, D. M. Smith, H. D. Smith, Benjamin T. Jennings, R. S. Sutton and Thomas Sutton, composing the firm of Smith, Sutton & Co., of Pittsburg, Pennsylvania, against the Chicago Plow Manufacturing Company, Nathaniel S. Bouton, Christopher B. Bouton, Edward G. Shumway, George H. Hull, as vice-president and treasurer, and George H. Hull individually, S. F. Bouton, as secretary, and S. F. Bouton individually.
    The hill avers that on March 13, 1880, the complainants recovered a judgment against the Chicago Plow Manufacturing Company for the sum of $10,392.38, damages, and costs, in the Superior Court of Cook county; that an execution was issued upon said judgment on or about March 29, 1880, and duly returned by the sheriff nulla bona; that such judgment was in full force and effect, and was based upon a note made by the Chicago Plow Manufacturing Company, for $9222.58, dated July 5, 1878, and due December 1, 1878, with ten percent interest after maturity, which note was given in renewal of certain five other promissory notes given by said company for goods, wares and merchandise sold and delivered by complainants to said company between September 1, 1877, and April 1, 1878. This hill was in the ordinary form used for diseovery of assets and property, and among other things prayed that the defendants other than the company might be required to state, under oath, each for himself, jointly or separately, whether or not they have in their possession or under their control certain property, goods, dioses in action, or property of any kind or nature, belonging rightfully or equitably to the said defendant the Chicago Plow Manufacturing Company, and if so, that they may be required to disclose the same. The bill also, among other things, charged as follows:
    “And your orators further show, on information and belief, and charge the fact to be, that the said defendant the Chicago Plow Manufacturing Company, acting in collusion with several others of the defendants, to-wit, Nathaniel S. Bouton, Christopher B. Bouton, and Edward G. Shumway, (three stockholders or officers of the said defendant the Chicago-Plow Manufacturing Company,) has, at divers times since the-contraction of said indebtedness to your orators, paid to the-said Nathaniel S. Bouton, Christopher B. Bouton andEdwardl G. Shumway, and other persons, large sums of money, without any, good or valid consideration therefor, and that such payments so made as aforesaid were in fraud of your orators, and other creditors’ rights in the premises, and that they were so-made for the purpose of hindering and delaying your orators and other creditors in .the collection of their just debts and claims against the Chicago Plow Manufacturing Company.”
    The bill prayed for the appointment of a receiver of the company, and for such other relief as the nature of their case required, and as should be agreeable to equity and good conscience. The defendants answered, under oath, denying; all the allegations of the bill seeking discovery and charging fraud, and denying the possession of any assets belonging to the company by any of said defendants, or elsewhere. Replications were filed to the answers, and the cause referred to the-master to take and report testimony. On the coming in of such report the cause was heard, and a decree for $4725.31 was ’entered against the appellant, alone. This decree, on. appeal to the Appellate Court, was affirmed, and by further appeal the case is brought to this court.
    The evidence shows that the Chicago Plow Manufacturing Company was organized under the general law of this State, April 12, 1877, with a capital stock of $125,000, and immediately commenced business; that the stockholders at the time of the organization were N. S. Bouton, George H. Hull and S. F. Bouton, and E. G. Shumway, George H. Hull and S. F. Bouton were its officers and directors; that appellant was not an officer or director of the company at any time; that he became a stockholder by purchase of E. G. Shumway’s stock of one hundred shares, in March, 1878; that appellant was called on for advice and assistance by the officers of the corporation almost daily, and that he aided it in borrowing money, by lending his credit and by pledging his means as collaterals for loans to it; that he, about the 4th of May, 1878, at the request of the corporation, at an auction sale, bought the note of the corporation for it, paying $8000 of his own money for the same, and that about August 1, 1878, he advanced to the company $1338.31 more, making a total of $9338.31 advanced by him in cash. About August 1, 1878, the board of directors voted to appellant $6000 for his total services, in addition to the sum the company owed him fori his advances. On account of all this indebtedness he took depreciated notes, bills and accounts of the company, from which he actually realized about the sum of $9000. There is no proof as to the value or the amount of the uncollected notes and accounts.
    Messrs. Leaming & Thompson, for the appellant:
    The bill being a bill for discovery only, and its allegations having been denied by the answers, the bill should have been dismissed on the filing of the answers. Insurance Co. v. Central National Bank, 7 Bradw. 426; Fire Ins. Co. v. Central National Bank, 1 id. 344.

      A corporation as well as an individual is liable on an implied promise to pay the value of services rendered, and an actual record of such contract is unnecessary. Angell & Ames on Corp. (11th ed.) secs. 317, 291 a, 237; Bank of the United States v. Dundridge, 12 Wheat. *64; Seagraves v. City of Alton, 13 Ill. 336; Ryan v. Dunlap, 17 id. 40; Wheeler v. City of Chicago, 24 id. 105 ; Maher v. City of Chicago, 38 id. 206.
    A stockholder in a corporation does not come within the rule prohibiting the president and directors from receiving or recovering compensation not fixed prior to the rendition of the service to the corporation, when such service comes within the scope or line of their official duties. Cheeney v. Railway Co. 68 Ill. 571; Holden v. Railway Co. 71 id. 106.
    Mr. R. B. Bacon, for the appellees:
    A creditor’s bill filed pursuant to section 49 of the Chancery act, is a bill for relief as well as discovery. Fire Ins. Co. v. Central National Bank, 1 Bradw. 357; Mitchell v. Byrns, 67 Ill. 572.
    Officers and directors of a corporation can not claim compensation for services rendered to it within the scope of their duties, without an antecedent vote, resolution or by-law authorizing the same.
    The assets of a corporation are a trust fund, charged, primarily, with the payment of the corporate debts, and they may be followed by the creditors into the hands of any per-«5 son having notice of the trust attached to them. As to the stockholders, there can be no pretence but that they are chargeable with the most ample notice of the trust character of the assets. Morawetz on Private Corp. sec. 574; Peterson v. Land and Loan Co. 6 Bradw. 257; 2 Story’s Eq. Jur. sec. 1252; Wood v. Dummer, 3 Mason, 308; Clapp v. Peterson, 104 Ill. 26; Bartlett v. Drew, 57 N. Y. 587.
    If the stockholders of an insolvent corporation meddle with or appropriate the corporate assets, they become, in regard to said assets, like the directors, quasi trustees as to creditors of said corporation, and they can not occupy the status of innocent purchasers. Wood v. Dummer, 3 Mason, 311; Perry on Trusts, sec. 217.
    Again, a corporation has no right to give away its property, leaving its creditors unpaid. A transfer of its assets, unless made in'the due course of business and for value, will be set aside, and the lien of creditors may be enforced, in equity, until the property has reached the’ hands of a bona fide purchaser for value. Morawetz on Private Corp. sec. 574; Railroad Co. v. Howard, 7 Wall. 392.
    It makes no difference if the directors and the appellant thought the corporation solvent, and acted in good faith. Bartlett v. Drew, 57 N. Y. 587; Clapp v. Peterson, 104 Ill. 26.
   Mr. Justice Dickey

delivered the opinion of the Court:

This was a creditors’ bill brought by the appellees, against the Chicago Plow Manufacturing Company and others of its officers and stockholders, under section 49 of the Chancery Code, to compel a discovery, under oath, of any property or thing in action belonging to or due such company, or held in trust for it, and to enjoin any transfer of the same, and for the appointment of a receiver, and for other relief, generally. The defendants other than the debtor corporation answered under oath, averring that the complainants’ note upon which its judgment was recovered, was1 secured by a chattel mortgage executed by the company to Boswell B. Bacon, the agent and attorney of the complainants, on all the machinery and tools of the Chicago Plow Manufacturing Company; that said Bacon took said machinery and tools under said mortgage, and removed and disposed of the same in some manner unknown to the defendants; that neither the complainants nor their agent has ever accounted to the company for the disposition of said property, and that said property was of the value of $20,000,—much more than enough to satisfy said debt to the complainants; also averring, that on March 3, 1879, Herbert C. Ayer and Henry I. Higgins, a firm, etc., filed their creditors’ bill in the Superior Court of Cook county against said company, in which suit a receiver was appointed, to whom the company assigned all its assets, and that on July 21, 1879, the receiver sold such assets under an order of court, which sale was approved by the court, and denying, specifically, the other allegations of the bill.

The first point .made is, that the bill was for a discovery, only, and failing as such, it should have been dismissed, and that the court had no jurisdiction to entertain the same for any other purpose. This point would doubtless be good if the bill was for discovery, and that alone. Such is the case where discovery is asked in aid of an action at law. In this case the bill not only seeks a discovery of assets, but in addition thereto it seeks to have a receiver of the defendant corporation appointed, and certain payments made by the corporation to certain others of the defendants adjudged fraudulent as to complainants. No good reason is perceived why this may not be done, and thus obviate the necessity of more than one suit. It sets up fraud as a ground of equitable relief. It charges that the defendant corporation, acting in collusion with the other defendants, has, at divers times since the accruing of said indebtedness to complainants, paid to the said Nathaniel S. Bouton, Christopher B. Bouton, etc., large sums of money, without any good or valid consideration therefor, and that such payments so made as aforesaid were made in fraud of complainants’ and other creditors’ rights in the premises, and that they were so made for the purpose of hindering and delaying complainants and other creditors in the collection of their just debts, etc. This is certainly sufficient to give the court jurisdiction to determine the matters alleged.

In point of fact, was there any payment or payments made by this corporation to appellant without any valid consideration therefor ? The proofs show very clearly that notes and accounts of the corporation to the amount of about $15,000 were transferred to him, and that from such notes and accounts he has collected and realized about $9000 in money. These notes and accounts are claimed to have been paid to him and accepted by him in satisfaction of a previous bona fide indebtedness of the corporation to the appellant of over $15,000, consisting of a debt of $9856.46 due for moneys advanced for the company at its request, and interest thereon, and the sum of $6000 allowed him by vote of the directors for past services in behalf of the company. As to the first item of $9856.46, or thereabouts, for moneys advanced by appellant, there was a valid legal obligation resting upon the corporation to pay the same, with interest, which appellant might have enforced by action at law. Any payment upon this, either in money or in notes and accounts, can not be fraudulent as to other creditors. At most, it is but a preference of one creditor over others, which is lawful,, and not fraudulent. But the transfer of the notes and accounts to appellant was not made in payment or discharge of his claim for moneys advanced, alone, with interest thereon, but in discharge and satisfaction of his claim and demand of over $15,000, composed of the advances and the salary or compensation of $6000 for his personal services. If this last item was not a valid indebtedness of the company, it had no right to use the corporate funds or assets to pay the same, to the injury of actual bona fide creditors. If this demand was not enforcible against the corporation, the payment of the same was a mere gift or donation, and as to real creditors fraudulent .and void in law. We can not regard the $6000 voted to be paid the appellant, August 1, 1878, for alleged services rendered for-the corporation, as constituting a valid .indebtedness, which the corporation was under a legal obligation to pay. We do not think appellant could have maintained an action against the corporation for compensation for such services. There is no evidence of any contract or agreement whatever for the performance by appellant of any services for this corporation, much less for paying him anything therefor. We fail to find any contract binding appellant to perform any services for the company. Doubtless the records of the company show what compensation was to be paid to the officers and employes of the company, but they disclose no entry in respect to the employment or payment of appellant, except the vote in August, 1878, allowing him $6000. It will not do to allow either the officers or stockholders of a private corporation organized for pecuniary profit, after incurring a large indebtedness, and while actually insolvent, by vote to set apart moneys or corporate property to themselves for past services not previously provided for in any manner, or in any way to appropriate to their own use the property or funds of the company on the plea of payment for services voluntarily rendered, under no contract therefor, and thus absorb or even diminish its means of discharging its just obligations, to the detriment of actual creditors. A corporation has no right to give away its property, leaving its creditors unpaid and not provided for, and any transfer of its assets not made in the usual course of business, and for value, will be set aside, and the lien of its creditors enforced in equity.

It remains to be seen whether the court was justified in requiring the appellant to pay anything, and, if he was liable in any amount, whether the decree was not for too large a , sum. If appellant received no more than his just and legal dues, leaving out of consideration the $6000 allowance, then he is not liable for any sum, and the decree is clearly erroneous. The appellant was charged by the corporation (as its account, if understood, shows,) with book accounts at forty-five per cent of their face, $5140.78, and for $29,259.97 at thirty-five per cent of their face, amounting to $10,240.99, making in all a charge of $15,381.77, which lacked $474.69 of balancing his account, which was composed of the $6000 allowance, and $9856.46, the latter being for the moneys advanced by him, and interest. In this account of $15,381.77 the appellant was charged with $3330.70 of notes, which he claims were never delivered to him; they being in the hands of attorneys for collection; and he also claims that he was wrongfully charged $800 for another note. We regard the adjustment of the several items of the account as constituting but one transaction or demand, which was attempted to be paid and balanced by the transfer of the notes and accounts, the sum. actually due him from the corporation.

Appellant claims that he has allowed the corporation for the notes and accounts taken by him more than they were worth, and would not have taken them at the price he did had he understood that only a part of his claim was to be allowed and paid thereby, and that he took such notes and accounts not expecting to have to advance any money therefor, as he would, at the prices agreed, if his $6000 allowance is rejected. He also insists that if the contract is set aside and declared void at all, it should be in toto, and not in part, and that he should then be charged for said, notes and accounts only the sums he has actually collected and received thereon, and should not, in any event, be charged for more than the actual value of those uncollected. There is force in this position. We think he should not be bound conclusively by the price he agreed to give, as that contract, when avoided, can not bind him or any one else, although he could not himself have had it set aside. If appellant will render a full account of the net proceeds of that portion of these securities and demands which he has converted into money or disposed of, and turn over to the receiver that part of the same which he still holds, he ought not to be required to refund any money except the excess of the net receipts over and above his demand for moneys advanced to the company, and interest thereon.

The judgment of the Appellate Court is reversed, with directions to reverse the decree and remand the cause for further proceedings in accord with the views here expressed.

Judgment reversed.


author: Mr. Justice Mulkey

text:
    Edson A. Dodge v. The People, for use, etc.

      Filed at Springfield

      March 30, 1883.

    1. Justice of the peace—as to the form or mode of pleading, in respect to various defences. No written pleadings are required in ordinary actions before justices of the peace. All the allegations of the parties are presumed to be oro tenus, and their rights are to be determined from what is proved, rather than upon what is alleged or pleaded.
    2. If a village sues in its corporate name before a justice of the peace, a prior judgment of ouster in a quo warranto proceeding against it may be set up and relied on in abatement of the action, if the defence is set up in apt time before the justice; but no formal written plea is necessary.
    3. A dilatory defence in suits before justices of the peace must be made at the earliest opportunity, as is required in courts of record, by a formal plea, though it need not be in writing. Such a defence can not be taken advantage of for the first time on an appeal.
    4. By éxpress statute, no party to a suit before a justice of the peace is allowed to deny the execution or indorsement of any written instrument sued on, or offered as a set-off, unless such denial is made by affidavit. But in such case no plea is required other than the affidavit itself.
    5. Same — on appeal—trial and jurisdiction. On an appeal from a justice of the peace to the circuit court, the case must be tried de novo, upon the proofs offered, without written pleadings; and the court trying the same will have no more extensive power or jurisdiction than the justice of the peace.
    6. Municipal cobpobation—effect of a judgment of ouster on quo warranto. The effect of a judgment of ouster on an information in the nature of a quo warranto, against a village and its board of trustees, is to immediately dissolve the corporation, whether it existed de jure or de facto, and work its dissolution, and take away all its rights, liberties, privileges and franchises.
    7. Same—effect of a dissolution on the power of its officers. The dissolution of a municipal corporation by the judgment of the court on quo warranto, as in the death of a natural person, operates as an absolute revocation of all power and authority on the part of others to act in its name or in its behalf. After such civil death, its late treasurer has no power to demand or receive corporate taxes in the hands of the collector, in behalf of the corporation.
    8. Tax ooizlectob’s bond — liability thereon—when action will lie. The sureties upon a collector’s bond are not liable on the same, except upon certain specified conditions, as, a failure to discharge his duties. There can be no recovery upon any official bond without showing a breach of one of its conditions. The safe keeping of tax money levied by a defunct village corporation until some one has a right to demand and receive the same, is no breach of the bond.
    9. Money collected as village taxes, in the hands of a county collector, is not recoverable in an action upon his oficial bond, brought in the name of the People of the State, without any demand, except by the village treasurer, made after the dissolution of the village corporation, and where such collector has not been guilty of any breach of his bond.
    Writ of Error to the Circuit Court of Jersey county; the Hon. George W. Herdman, Judge, presiding.
    Messrs. Hamilton & Slaton, for the plaintiff in error:
    The judgment of ouster in the quo warranto case conclusively and finally determines the rights as to all persons whomsoever, and may be given in evidence by the parties and others, without being pleaded. Dillon on Mun. Corp. sec. 725; Angell & Ames on Corp. secs. 195, 779; High on Legal Remedies, sec. 756; 2 Kent’s Com. *307; Life Association v. Fassett, 102 Ill. 315.
    Such judgment of ouster is the civil death of the corporation. See same authorities, and Thornley v. Moore, 106 Ill. 496.
    As no party plaintiff could be substituted, the suit must abate. 1 Chitty’s Pleading, *448, note 2.

      The trial of the appeal was de novo, and no formal plea was necessary. When matters of record are pleaded in abatement, no verification is necessary. Life Association v. Fassett, 102 Ill. 315.
    The money in appellant’s hands belongs to the persons who paid it. “If it was in the appellant’s hands without the authority of law, it is not recoverable at all, but belongs to the several tax-payers by whom it was paid. ” Town of Virden v. Needles, 98 Ill. 366.
    A lawful judgment can not be rendered in favor of a dead plaintiff. Riseley v. Fellows, 5 Gilm. 531; Brown v. Parker, 15 Ill. 307; Barbour v. White, 37 id. 164; Thornley v. Moore, 106 id. 496.
    In contemplation of law, all proceedings before justices of the peace are oral, and every defence which the defendant wishes to avail himself of is presumed to have been pleaded. Comstock v. Ward, 22 Ill. 249; Williams v. Corbett, 28 id. 263; Wilson v. Bevans, 58 id. 232.
    Mr. George E. Warren, and Mr. W. H. Pogue, for the defendant in error:
    The death of a plaintiff, to defeat a judgment, must be pleaded in abatement. Life Association v. Fassett, 102 Ill. 315.
    The organization of the village of Fidelity can not be questioned collaterally. Osborn v. People, 103 Ill. 228; Village of Nunda v. Village of Chrystal Lake, 79 id. 311; Blake v. People, 109 id. 504.
   Mr. Justice Mulkey

delivered the opinion of the Court:

It appears from the record in this case that the acting trustees of the village of Fidelity certified to the county clerk of Jersey county the sum of $250, to be extended by him as a tax, upon the collector’s books, for the year 1882, upon the taxable property within the limits of said village, which is situated in the town of Fidelity, and that the same was so extended. Of this sum there was $47.35 in the hands of Edson A. Dodge, as town collector of said town, on the 23d day of March, 1883, being the day on which this suit was commenced. Demand having been made upon Dodge for this sum by Warren Christopher, as village treasurer, and payment refused, the acting village authorities commenced suit against Dodge and his sureties on his official bond, "before a justice of the peace, to recover the same. The village having recovered a judgment for the amount before the justice, Dodge, alone, took an appeal to the circuit court, where the cause was submitted to the court without a jury, and a final judgment entered therein, on the 21st day of November, 1883. '

It was shown, by way of defence, on the trial, that at and before the commencement of this suit an information in the nature of a quo warranto had been commenced, and was then pending, in the circuit court of Jersey county, against the village of Fidelity and its board of trustees, requiring them, respectively, to show by what warrant or authority they assumed to act as a corporate body, etc., and that such proceedings were had in said cause that said circuit court, on the 2d day of April, 1883, entered therein a judgment of ouster, whereby and wherein the said village of Fidelity and its board of trustees were, severally, adjudged and declared to be ousted of all their corporate privileges and franchises under the laws of the State of Illinois, and that said judgment of ouster was in full force and effect at the .time of the entry of the judgment in this case. The summons in the present case, as originally issued, ran simply in the name of the village, as plaintiff. After the evidence was all in, on both sides, the court permitted it to be so amended as to run in the name of the People of the State of Illinois, for the use of the village. Upon being thus amended, the court thereupon entered judgment, in the name of the People, for the use of the village, for the amount of the penalty of the bond, against Dodge and his sureties, to be discharged upon the payment of said sum of $47.35.

Whether the court, upon the facts stated, was warranted in rendering this judgment, of course depends upon the effect that is to be given to the judgment in the quo warranto proceeding, as that is the only defence relied on. Neither the regularity of the quo warranto proceeding, nor the validity of the judgment entered therein, is at all questioned. The only question made by defendant in error is as to the manner in which the judgment in that proceeding was used in this, the contention being that the evidence was inadmissible, unless in support of a plea in abatement, and that there was no plea of that kind. That such a plea was necessary before the justice, will hardly be seriously contended. It is the settled construction of our statute relating to proceedings before justices of the peace, that no written pleadings are required. The allegations and counter-allegations of the parties, or their attorneys, are all presumed to be oro tenus, and their rights depend upon what is proved, rather than upon what is said or pleaded. In these courts, therefore, no technicalities are permitted to avail. If one having a meritorious cause is properly defeated, it will be because he has failed to make the necessary proofs, and not because he has made some mistake in the statement of his case. There is, however, this limitation upon the rights of the parties in this respect, viz: that dilatory defences must be made in apt time,—that is, at the earliest opportunity,—as is required when made in a court of record by a formal plea. (Conley v. Good, Breese, 135; Byars v. City of Mt. Vernon, 77 Ill. 467; Huftalin v. Misner, 70 id. 205.) Hence it was held in Conley v. Good, supra, that a defence of a dilatory character could not for the first time be taken advantage of in the circuit court, upon an appeal from a justice of the peace. There is also the further limitation that “no party to any suit before a justice of the peace shall be permitted to deny the execution or any indorsement of any written instrument upon which suit shall be founded, or which shall be offered as a set-off or acquittance for the debt demanded in such suit, unless said denial be by affidavit of the party so denying the execution or indorsement thereof. ” This, however, is an express provision of the statute, (Rev. Stat. 1874, chap. 79, see. 56,) and even here no plea is contemplated or required, other than the affidavit itself. It is hardly necessary to add, that upon an appeal from a justice of the peace to the circuit court, the case is to be tried de novo, upon the proofs offered by the respective parties, without written pleadings, the circuit court having no other or more extensive power or jurisdiction in disposing of the case than the justice had who tried it below. The proofs are heard and given effect precisely as if offered under appropriate and properly framed pleadings.

It clearly follows from what we have said, and the authorities above cited, there is nothing in the objection that the judgment in the quo warranto proceeding was not pleaded in abatement. It is sufficient that the proof was made in apt time, and this is not questioned, as the record clearly shows it was so made, both before the justice and the circuit court.

The question then recurs, what was the legal effect of that judgment upon the right to further proceed in the action which was then pending against Dodge and Iris sureties on his official bond? Before directly answering this question, it is proper to inquire what effect the judgment had upon the village itself. There is no room for doubt on this point. The authorities are clear that its immediate effect was to dissolve the corporation, whether it existed de jure or de facto,— or, in other words, its effect was to completely extinguish and annihilate the artificial municipal body which had theretofore existed by the name of the village of Fidelity, together with its rights, liberties and franchises. Or, differently stated, its effect was the immediate death of the artificial being, followed by all the consequences which the law annexes to such a death. As in the case of'a natural person, its death operated as an absolute revocation of all power and authority on the part of others to act” in its name or in its behalf. By its death, therefore, the authority of the village treasurer to demand or receive money from the collector or any one else, on behalf of the village, was absolutely revoked, and it therefore follows, the sheriff could not, after such revocation of the treasurer’s authority, have properly paid the money in dispute to him. The money sought to be recovered was raised by a tax prima facie valid, and was received by Dodge in his official character as collector. It was legally and properly received by him, and he and his sureties became liable on his official bond for its safe keeping, and payment to those having a legal right to receive it. But until some one having such right demanded it of him, it was simply his duty to safely keep it. Whether, by reason of the fact the village of Fidelity never had any valid organization, as was adjudged by the court in the quo icarranto proceeding, the tax-payers from whom this money was collected would have the right to recover it back, or whether, assuming the village at the time of its dissolution left creditors whose claims are unpaid, they may, by a proper proceeding in equity, reach this fund, are questions not involved in this suit, and about which we express no opinion.

As the legal title to all taxes, when collected, must be regarded as in the State, until applied to the particular purpose or purposes for which they have been levied and collected, we were at first inclined to the opinion that since the People, or the State, is the real plaintiff in ihe suit, and the collector, as between him and the State, is its mere custodian, the recovery below might be sustained on those grounds ; but further reflection satisfies us this view is not tenable. If this were an action by the State for money had and received, against Dodge, alone, there would be much force in the position suggested; but even then the case would not be free from difficulties, not important to be discussed her,e, as no such case is before us. This suit is not to recover a simple money demand, as is clearly shown by bringing the action against Dodge’s sureties as well as against Dodge himself. The evidence does not disclose the shadow of such a claim against the sureties. But waiving this, the judgment itself settles the question beyond all controversy. As is already shown, the judgment is rendered for the full penalty of the bond, to be discharged upon the payment of the damages, assessed at $47.35, and costs. The bond, then, being the foundation of the judgment, the question is presented, is it warranted by the evidence ? It is hardly necessary to observe, the bond is not an absolute undertaking by the makers or obligors to pay money. The undertaking is, to pay upon a certain specified condition, namely, Dodge’s failure to discharge his duties as collector. Unless there has been a breach of this condition, it is clear the judgment was unauthorized, for there can not be a recovery upon an official bond, in any case, without proving a breach of the condition. No such breach has been shown in this case, and the only one claimed is Dodge’s refusal to pay over the money in question to the so-called treasurer of the defunct village, after his authority to demand or receive it had been completely revoked, as we have heretofore fully shown. This was no breach of his bond.

The judgment of the court below is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Judgment reversed.

Scott and Craig, JJ., dissenting.


author: Mr. Justice Craig

text:
    James W. Patton v. Henry J. Smith.

      Filed at Springfield

      March 30, 1885.

    1. Parties—in bill to foreclose. In a bill to foreclose a mortgage, all persons interested in the premises, who claim under the mortgagor subsequent and subject to the mortgage, are necessary parties; and if they are not brought in, their rights will not be cut off by the decree.
    2. Judicial sale—when necessary to sell in parcels. Where a mortgage, and decree of sale on foreclosure, describe a quarter section of land mortgaged, as a single tract, it is not the duty of the master to divide the land into parcels in making a sale. If several distinct tracts are ordered sold, then it is the duty of the master to sell each parcel separately.
    3. Bill to redeem—by whom. The assignee of notes secured by a second mortgage on land, although he was not made a party to a bill to foreclose the prior mortgage, but whose assignment is merely colorable, can not maintain a bill to redeem from such prior mortgage and sale thereunder.
    Appeal from the Circuit Court of Macoupin county; the Hon. W. R. Welch, Judge, presiding.
    Messrs. Patton & Hamilton, for the appellant:
    Cheney, the second mortgagee, and who was a party to the Heaton foreclosure suit, should have redeemed within twelve months from the sale. Dunn v. Rogers, 43 Ill. 260; Seligman v. Laubheimer, 58 id. 154.
    When real estate has been sold under a decree of foreclosure, a judgment creditor of the mortgagor may redeem from the same, and cut off a junior mortgagee made a party to the foreclosure suit, and failing to redeem within twelve months. Lamb v. Richards, 43 Ill. 312; Lloyd v. Karnes, 45 id. 62; Karnes v. Lloyd, 52 id. 113; McRoberts v. Conover, 71 id. 524.
    And if he purchase at the sale after redemption, he is subrogated to the rights of the purchaser at the first sale, except in case no greater sum than the redemption money and interest be bid, when he is entitled to a deed at once. Lamb v. Richards, 43 Ill. 312; Massey v. Westcott, 40 id. 160,
    The assignment of the certificate of purchase to Cheney by the executors of Heaton’s will, was not a redemption, and Patton, as a judgment creditor, had the right to redeem. Lloyd v. Karnes, 45 Ill. 62; McRoberts v. Conover, 71 id. 524; Moore v. Hopkins, 93 id. 505; Sweezy v. Chandler, 11 id. 445; McLagan v. Brown,.id. 519.
    Of the necessity of recording an assignment of a mortgage, to protect the assignee’s rights, see Rev. Stat. chap. 30, secs. 20, 30, and chap. 95, secs. 8, 9; Ogle v. Turpin, 102 Ill. 148 ; Edgarton v. Young, 43 id. 465; Reed v. Marble, 10 Paige, 409; Cornog v. Fuller, 30 Iowa, 212; Jones on Mortgages, secs. 472, 820.
    Application to set aside the sale of several distinct tracts en masse, must be made in a reasonable time. Noyes v. True, 23 Ill. 503; Fergus v. Woodworth, 44 id. 374; Robbins v. Flemming, 53 id. 196; Hay v. Baugh, 77 id. 500; Rowand v. Carroll, 81 id. 224.
    Lands must be redeemed and sold in the same manner as they were sold in the first instance. Downs v. Jackson, 33 Ill. 464; Oliver v. Crosswell, 42 id. 41.
    Messrs. Rinaker & Rinaker, for the appellee:
    All persons interested in the subject matter of a suit in chancery must be made parties to such suit. Gillham v. Carns, Breese, 164; Harrington v. Hubbard, 1 Scam. 569; Bonham v. Galloway, 13 Ill. 68; Smith v. Rotan, 44 id. 506; Alexander v. Hoffman, 70 id. 114; Hopkins v. Roseclare Lead Co. 72 id. 373; Jones on Mortgages, secs. 1394, 1425-1427.
    Persons having an interest in the subject matter of suits in chancery, who had such interest at the time suit is begun, unless made parties, are not bound by the decree in such suit. See authorities above cited, and Brush v. Fowler, 36 Ill. 53; McConnell v. Smith, 39 id. 279; Ohling v. Luitjens,
      32 id. 23; Dunlap v. Wilson, id. 517; Bradley v. Snyder, 14 id. 263; Grab v. Cushman, 45 id. 119, and 60 id. 201; Richardson v. Hadsall, 106 id. 476; Avery v. Ryerson, 34 Mich. 362.
    When a prior mortgage is being foreclosed in chancery, the holder of notes secured by subsequent mortgages is a necessary party to such suit, although such holder of the notes is the assignee of such notes. See authorities above cited, and Edgarton v. Young, 43 Ill. 464; Myers v. Wright, 33 id. 284; Grob v. Cushman, 60 id. 201; Gaytes v. Franklin Savings Bank, 85 id. 256; Clark v. Manning, 95 id. 580; 1 Daniell's Chancery Practice, 260; Story’s Equity Pleading, sec. 201; Vansant v. Allmon, 23 Ill. 26; Olds v. Cummings, 31 id. 188.
    That appellee, Smith, now has the right to redeem from the decree and sale made under the foreclosure of the Heaton prior mortgage, and such right continues till his debt is barred by the Statute of Limitations, since he was not made a party to the suit in chancery foreclosing said mortgage, see Bradley v. Snyder, 14 Ill. 263 ; Vansant v. Allmon, 23 id. 26; Pope v. North, 33 id. 440; Strang v. Allen, 44 id. 428; Hodgen v. Guttery, 58 id. 431; Steinkemeyer v. Gillespie, 82 id. 253.
   Mr. Justice Craig

delivered the opinion of the Court:

On the first day of October, 1870, Andrew Bauch mortgaged the north-east quarter of section 5, township 12, north of range 6, west, in Macoupin county, to O. B. Heaton, to secure the payment of a certain sum of money, which mortgage was duly recorded. On the 21st day of February, 1877, Bauch borrowed from Prentiss D. Cheney, $4772, and gave two notes for the principal debt, and also two sets of interest notes for the payment of annual installments of interest. This loan Bauch secured by two mortgages on the quarter section of land in Macoupin county, and seventy acres of land in Sangamon county. These mortgages were also recorded. At the August term, 1878, of the Macoupin circuit court, a decree foreclosing the Heaton mortgage was rendered, and on the 18th day of November, 1878, the quarter section of land was sold to satisfy the decree, and was bought by the executors of Heaton’s estate. Cheney, to whom the second mortgage was given, was made a party to the bill, and he, and Bauch, the mortgagor, both answered the bill, in w'hich it was admitted that Cheney held the second mortgages. This answer was filed on the 13th day of March, 1878. No redemption was made from the sale within the year, but Cheney bought the certificate of purchase from the Heatons. In May, 1877, one Yaneil recovered a judgment in the circuit court of Sangamon county, against Bauch and one Gr. P. Cheney, for the sum of $1492. This judgment was assigned to James W. Patton, appellant, on the 12th day of August, 1879, by Yaneil. On the 22d day of November, 1879, an execution was issued on the judgment, to the sheriff of Macoupin county, under which the sheriff levied on the quarter section of land which had been sold on the foreclosure decree. At the same time, appellant, as assignee of the judgment, redeemed from the sale under the Heaton decree of foreclosure. On the 18th day of December, 1879, the land which had been redeemed was sold by the sheriff, and bid off by appellant for the amount of the redemption money, and the sheriff made him a deed. Appellee, Henry J. Smith, claims that the Cheney notes and mortgages were sold and assigned to him on the 23d day of May, 1877,—the day before Heaton filed his bill to foreclose his mortgage; and as such assignee, on the 24th day of May, 1880, he filed his bill to foreclose the Cheney mortgages, and to redeem from the sale under the Heaton decree. The appellant, Patton, filed his answer, in which he claimed to own the land under his redemption and purchase at sheriff’s sale. On the final hearing the court rendered a decree allowing appellee, Smith, to redeem, and Patton appealed from the decree.

It is contended that Smith is entitled to redeem because he owned the Cheney notes and mortgages, and was not made a party to the bill brought by Heaton to foreclose his mortgage. In a bill to foreclose a mortgage, all persons interested in the premises, who claim under the mortgagor and subsequent to the mortgage, are necessary parties, and if they are not brought in, their rights will not be cut off by the decree. This may be regarded as a general rule in chancery proceedings.

But it is said that Heaton had no notice, either actual or constructive, that Smith had any interest whatever in the mortgaged premises, and hence he was not a necessary party to the bill. When Heaton filed his bill to foreclose the mortgage held by him, there was nothing on record to indicate that Cheney had sold or transferred his mortgages- If Smith had any interest in the mortgaged premises, there was nothing, so far as the record is concerned, to indicate that fact. No assignment of the Cheney mortgages was ever recorded. Indeed, no assignment was ever made other than the indorsement of the notes, which may be treated, in equity, as an assignment of the mortgages. But the assignment of the notes was not recorded. So far as record or constructive notice is concerned, it is plain that Heaton had no such notice. As to actual notice, we do not regard the evidence sufficient. Smith testified on this point, that in May or June, 1878, he was in Chicago, and saw Edgar S. Heaton, executor of O. B. Heaton, deceased, and informed him that he owned the two Cheney mortgages on the Bauch land, and would pay off his prior claim if it was legally established. In his cross-examination he says that he met Heaton at his office on Dearborn street—that his office was up-stairs. Heaton was put on the stand as a witness, and interrogated as to the interview testified to by Smith. He stated that in the months of May, June and July, 1878, his office was not on Dearborn street, but on Fifth avenue, on the east side of the street, between Washington and Randolph' streets, on the ground or street floor. ■ He also testified that he has no recollection of Smith, and has no knowledge of receiving any notice from him,— that if he had been notified that Smith was interested in the premises, he would have made him a party to the foreclosure suit. This testimony of Heaton is not as direct and positive as it might be; but in view of the fact that Smith’s testimony on other points of the case was shown to be so unreliable, we are inclined to the conclusion, from all the evidence, that no notice was given Heaton of the claim of Smith.

Cheney, who was shown by the record to own the second mortgages, was made a party to the bill, and in the absence of actual notice to Heaton it is claimed by appellant that he was under no obligation to look beyond the record, and although Smith may have had an assignment from Cheney, his rights are concluded by the decree. We do not find it necessary in this ease to determine whether Smith would be entitled to redeem if he had purchased the notes and mortgages of Cheney on the 23d day of .May, 1877, as claimed by him, because in the view we take of the evidence we do not think the testimony sufficient to establish the fact that Cheney sold Smith the notes and mortgages, and hence the decision of the other question is not material. The notes .purport to be assigned on the 23d day of May, 1877, by Cheney, to Smith, and. both of these parties testify that the notes were sold and assigned on that date. But there are facts and circumstances connected with the transaction, which, in our judgment, are sufficient to overcome the complainant’s testimony upon this point. As to Cheney, from the time of the alleged transfer of the notes and mortgages to Smith, his acts and conduct in regard to the securities can be explained on no other theory than that he was still the owner. His answer was filed long after the purported assignment, in which he claims to hold the notes and mortgages. On January 31, 1878, he wrote the mortgagor, Rauch, that the first year’s interest on his loan would fall due on February 21. “When the time arrives, send me the money by express, and I will send you the interest note by return mail.” On February 21 of the same year, he wrote the mortgagor again that he would do anything to ease along his payments. He also urged him to write Gen. Rinaker to put in a new plea in the Heaton foreclosure case,—that he is satisfied the debt is paid. On May 2 he wrote that the time fixed had arrived for the payment of interest due February 21, and requested that a bank check should be sent, and he would send receipt. On June 26 he again wrote, urging the payment of interest. After the decree of foreclosure had been rendered and the land sold, for the purpose, doubtless, of protecting his interest in the land, Cheney bought the certificate of purchase. If he had sold the notes and mortgages to Smith in May, 1877, as claimed, why should he undertake to collect the interest on a debt he did not own, and manifest so great an interest in the matter ? He was indorser of the notes, but the lands embraced in the mortgages were ample security for all the mortgages, so that his liability in this regard could not account for the interest he manifested in the matter. Indeed, there is no rational theory upon which the conduct of Cheney can be explained, except, only, that he still owned the notes and mortgages.

We now come to'the testimony of appellee, Smith, which, it is claimed, has an important bearing on the question. He testified that he purchased the notes and mortgages of Cheney on the 23d day of May, 1877, and paid in cash for them $4800, on that date. Smith, as appears from his testimony, was a resident of New York City, and an attorney at law by profession. On cross-examination he refused to answer where he got the money he paid for the mortgages, how long he had it on hand, and whether it consisted of bills or specie. He also declined to tell where he kept his bank account, or whether he had a bank account. Indeed, on the first examination the witness refused to answer any question in regard to the payment of the money to Cheney- which would throw any light on the transaction. The court, on application, made an order requiring the witness to answer certain questions which he had refused to answer, and all questions which properly pertained to the matter in dispute. Upon a further examination, under this order, Smith undertook to account for the fact that he had such a large amount to invest in mortgages in the west. The principal part of the money, as he says, was received from three persons: From Arthur M. Smith, his brother, in April, 1877, $3000; from Louise Stevens, $2500; from John D. Morgan, in March, 1877, $1500. Testimony was taken by appellant which shows clearly that as early as 1872 Arthur M. Smith was insolvent. In 1874 or 1875 he was in jail in New York City, charged with perjury. He remained in jail ten or twelve months. He contributed nothing to the support of his family. His wife testified, and she is corroborated by other evidence, that he continued insolvent from 1872 until his reputed death, in 1879. He left New York in August, 1876, and went west, peddling lamp chimneys. In the spring of 1877, when appellee claims to have received $3000 from him, he had neither money, property nor credit, and if any reliance is to be placed on the evidence, it is apparent no money was received by appellee from this source. John J. Allen testified: “I knew Arthur M. Smith first in the latter part of the year 1874. He was then in the custody of a deputy United States marshal, in my office, in Brooklyn. He was under arrest on a charge of perjury. It was on the 28th day of November, 1876. I was his sole counsel, and defended him in the proceeding, and finally procured his discharge on a technical defence. His brother^ Henry J. Smith, was frequently the medium of communication between myself and Arthur M. Smith, who, during the time, was in jail, through inability to give bail, which was reduced, as low as $1000. I had a dozen or more interviews with Henry J. Smith. He was usually in attendance at the proceedings in the case. I received from Henry J. Smith, in the early history of the case, a small retainer. I was never able to collect anything more, though they both frequently promised to pay me. Arthur M. appeared entirely destitute. I never saw him after his discharge. During the years 1875, 1876 and 1877 I saw Henry J. Smith at different times, and spoke to him about the balance due me from Arthur and himself, and he always represented he did not know where Arthur was, and that he had no means of obtaining the amount. I endeavored to obtain from him his brother’s address, but never succeeded. ” As respects Louise Stevens, from whom Smith claims to have received $2500 of the money, she seems, from the testimony, to have been his mistress, and had, in the spring of 1877, no money or property whatever. As to Morgan, who, Smith claims, paid him $1500, the evidence shows he was hopelessly insolvent, broken down in health, and a short time after (in the spring of 1877,) he died in a New York hospital, in a destitute condition. One witness says that Morgan frequently applied to him for money to pay for food and other necessaries of life, and he was in the habit of furnishing small sums of from twenty-five to fifty cents. From this evidence it is plain that appellee never received money from the parties who he testified furnished him the funds with which he purchased the notes and mortgages from Cheney, in May, 1877.

It will be observed that appellee has produced no check, draft, or written evidence of any character, to show the payment of the money to Cheney. If Smith paid Cheney $4800, as claimed, it may be presumed that the payment might be established by the production of a check; but no such evidence was produced, and in order to explain this weak point in the case, Smith swears that the payment was made in currency, and the money was carried around in bis pocket for several weeks before it was paid. This might be true, but it is so inconsistent with the manner in which business is transacted in a large city, between intelligent business men, that it casts a suspicion on the entire transaction.

But aside from this view, it is apparent, from the evidence, that in the year 1877 appellee, Smith, did not have the means to purchase the Cheney notes and mortgages. The evidence shows that appellee, during the year 1877, was not able to pay his board bill, and he and his wife were turned out of the boarding house for a failure to pay such bill. Marie E. Blake testified that appellee and his wife commenced boarding with her on the 1st day of May, 1877, and remained until October 1, when she turned them off for a failure to pay. The first two weeks he paid promptly, but the third week failed to pay, and after that the indebtedness was never paid, but steadily increased. After leaving Blake’s, he went to board with Elizabeth Edson, and remained there from October to January 1, when he was also turned off for a failure to pay. John Reppin, who occupied the same office with appellee from May 1,1877, to March 1,1879, testified that he knew appellee well; that appellee frequently called on him for small loans of from fifty cents to a dollar; that he often made such small loans, and often had to wait several weeks for his money. In the fall of 1877 he knew appellee to offer for sale two law books, at much below their value, for the purpose of raising money. In addition to this, the record shows judgments for a large amount standing unsatisfied against appellee.

From the evidence contained in this record it does not seem at all probable that appellee had the money required to purchase the mortgages. It is true that the notes purport to have been assigned to appellee on May 23, 1877, but the evidence in the record overcomes the presumption that appellee was a purchaser. If, then, appellee did not purchase the notes and mortgages before the bill was filed, he was not interested, and was not a necessary party, and when Cheney, the party shown by the record to be a second mortgagee, was made a party to the bill, the complainant "did all that the law required.

It is also urged that the sale was bad because the quarter section of land was sold en masse, without being first offered in subdivisions. In the mortgage the land was described as a certain quarter section in Macoupin county. The decree ordered a sale of the land described in the mortgage, and the master was under no obligation to subdivide the tract and sell it in parcels. Where the mortgage and decree describe the land as a single tract, it is not the duty of the master to divide the land into parcels in making a sale. If several distinct tracts were ordered sold, then it would be the duty of the master to sell each parcel separately. Davis v. Dresback, 81 Ill. 394.

The decree of the circuit court will be reversed, and the cause remanded, with directions to that court to dismiss the bill so far as it relates to the north-east quarter of section 5, township 12, north, range 6, west, in Macoupin county.

Decree reversed.

Mr. Justice Scott : I do not concur in this decision.