author: Mr. Justice Scholfield

text:
    Robert John Speck et al. v. The Pullman Palace Car Company et al.

      Filed at Springfield May 12, 1887.

    1. Abatement—death of a complainant in partition—after decree of sale. After a decree of partition and for the sale of the lands, and before the sale, two of the complainants in the bill died, leaving the remaining complainants their only heirs-at-law: Held, that the proceeding did not abate by the death of part of the complainants, but survived to their co-complainants, and that their death did not render a subsequent sale of the premises without an order of revivor, invalid.
    2. Tenants in common—lien created by one of them—affecting his interest only-—before and, after partition. A deed of trust given by one tenant in common upon the property, is binding only on the interest of the party making the same, and after a decree of sale in a proceeding for partition, will follow his interest, only, in the proceeds. Such an incumbrance will in nowise adversely affect the interests of the other tenants in the premises, or their interests in the proceeds of the sale.
    3. Judicial sale—order confirming sale in partition—its conclusive-mess. A sale under a decree in a suit for partition is a judicial sale, and an order confirming the same is conclusive as to all matters upon which the court might have been called upon to pass, had the parties brought them forward as objections to the confirmation, especially when the parties had knowledge, or might reasonably have had knowledge, of the facts upon which to base them.
    4. Laches—in filing bill to set aside sale. A decree confirming a partition sale was made on April 13, 1880, and a party in interest, who resided in the vicinity of the property, soon after accepted the money due him, on the basis of that decree, stood by and witnessed the expenditure by the purchaser of over a half a million of dollars in improving the property, and made no complaint of the sale until August 13, 1883, when he filed his bill to set the sale aside: Held, that if such party ever had the right to set the sale aside, he was guilty of such laches as to bar his right to the relief sought.
    5. Assignment after maturity—not fraudulent—subject to what defences. The assignment of a promissory note after maturity, being subject to all defences against the payee, can in no manner injure or prejudice the rights of the maker, and is therefore not fraudulent as to him.
    6. Parties—suit in the- name of an insane person. Under our statute, a suit for the partition of land may be prosecuted in the name of a lunatic or insane person, he having no conservator appointed. A judgment at law is-neither void nor voidable because the plaintiff is an insane person.
    7. Presumption—a a to motive of a party. Where two motives for art act done, the one lawful and the other unlawful, are presented, it must be assumed, in the absence of satisfactory evidence to the contrary, that the lawful'motive controlled.
    Appeal from the Superior Court of Cook county; the Hon. Gwynn Garnett, Judge, presiding.
    One Charles Dunn died intestate, in Cook county, in 1869, seized in fee of the premises in controversy. He left a widow, Bridget Dunn, but no child or children, or descendants of child or children, surviving him. His next of kin, under our statute, were his brothers, George Dunn, James Dunn and Bobert C. Dunn, and his nephew, Bobert John Speck, the son and only child of his sister, Ellen Speck. The widow, Bridget, subsequently intermarried with Patrick Connelly. George Dunn, James Dunn and Bobert John Speck resided in England. The other parties in interest resided in Cook county, in this State. On the 24th of August, 1873, Bobert C. Dunn, George Dunn and James Dunn, and Bobert John Speck, filed their bill for partition of the premises in controversy, in the Superior Court of Cook county, against the said Bridget and Patrick Connelly, and summons was served upon them. Afterwards, and on or about the 11th of September, A. D. 1873, Bridget employed Kretzinger & Johnson, a firm of attorneys-at-law, composed of George W. Kretzinger and William S. Johnson, to make defence for her, representing to them, as is testified by one of them, “that she had witnesses to prove it was her money that the property was purchased with; that she could prove that Dunn, her former husband, had received this money from her, with the agreement, on his part, to buy the land and take the deed in her name, and that he reported to her he had done so, or that she understood it was so done, and that she did not know to the contrary until after his death, ” and that she could prove this by witnesses other than herself, and it was thereupon agreed, as claimed by them, though it is denied by her, that she was to pay them, for their services, etc., in defending the suit, $6000, for which the note of herself and husband, payable one year after date, was then given to them, and secured by trust deed on the property in controversy, to one Paul Cornell. Shortly after the execution of this note and trust deed, John I. Bennett became a partner of Kretzinger & Johnson, and that firm filed an answer for Bridget Connelly, and also a cross-bill to the bill for partition, setting up the claim made by her in respect of the purchase of the premises in controversy, and claiming a resulting trust in her favor. The Superior Court, on hearing, decreed that the cross-bill of Bridget Connelly be dismissed, and that partition of the premises be made in accordance with the rights of the parties, as set up in the bill, and appointed commissioners to make partition. The commissioners reported that the premises were not susceptible of division, and appraised their value. The court thereafter, on the 4th of August, 1874, decreed that they be sold by special commissioner. The defendants, Bridget and Patrick Connelly, appealed to this court. Meanwhile, the firm of Bennett, Kretzinger & Johnson had dissolved, and John I. Bennett had become sole owner of the promissory note and mortgage executed by the defendants, as aforesaid. The firm of Bennett, Kretzinger & Veeder, of which John I. Bennett was a member, appeared in this court and represented Bridget and Patrick Connelly, on their appeal, and argued the case on their behalf ; and this court, at its September term, A. D. 1874, rendered judgment affirming the decree of the Superior Court, upon the ground that Bridget Connelly had no witness but herself to prove the allegations relied upon to establish' a resulting trust, and that she was incompetent to testify, as a witness, to those facts. See Connelly et al. v. Dunn et al. 73 Ill. 218.

      L. W. Pence, who was appointed commissioner to make "the sale, did not advertise the premises to be sold until late in 1879, when he advertised that they would be sold on the 10th day of December, A. D. 1879. At that time the commissioner offered the premises for sale, and there was bid only the sum of $125 per acre, which, being less than two-thirds of the appraised value, ($250 per acre,) there was no sale; and the commissioner subsequently reported this fact to the court. On the 20th of January, 1880, the Superior Court approved the report, and the court thereupon further decreed, that “this cause being further heard on said report, and the further evidence adduced before the court that said premises will not sell for two-thirds of the amount thereof, as set forth in the decree of sale, and the commissioner’s report therein mentioned and included in this cause heretofore entered, and the court being fully advised in the premises, upon motion of defendants’ solicitors it is hereby ordered, adjudged and decreed that the following other named commissioners be and they are hereby appointed to re-value said premises,— that is to say, ” (naming the commissioners) “who shall take the usual oath, etc., and make report to the court. ” The commissioners thus appointed, reported to the court on the 3d of February, 1880, that they had re-valued the premises, and appraised the same at $110 per acre. This report was approved by the court on the same day; and the- court then further decreed that Le Grand Pence execute the decree of sale, and that he permit purchasers at the sale, at their option, to pay cash, instead of executing promissory notes, for the purchase money. Pence advertised the premises for sale on the 6th of March, 1880, and on that day he sold them at public vendue to Luther H. Pierce, for $22,100, who, exercising his option under the decree of the 2d of February, 1880, then paid the amount. The commissioner reported the sale to the court, and Bridget and Patrick Connelly appeared and filed the following objections to the sale, to-wit:

      “First—Said premises were sold for a grossly inadequate sum of money compared with the fair and reasonable market value thereof, and were sold for §10,000 less than the same were reasonably worth.
    “Second—That the same was hurried through, and was not kept open for competition or other bidders.
    “'Third—The commissioner announced that said premises would be sold clear of all taxes; that he was unauthorized by said decree of sale to make any such announcement or condition.
    “Fourth—Said commissioner demanded a deposit, on the spot, of §1500, which he was unauthorized to demand, and had no right to require such an amount.
    “Fifth—A substantial bidder has offered to purchase said premises, and pay therefor §5400 more than the same were sold for on March 6, 1880, and said bidder stands ready to pay into court a reasonable sum to make good said bid in case of a re-sale of said premises.
    “Sixth—That said commissioner announced at said sale, and so made it a part of the terms of said sale, that all taxes, liens and deeds on account of taxes accruing since 1869 should be removed and canceled out of the proceeds of said sale.
    “Seventh—That sufficient publicity was not given of the pendency of sale prior to the making thereof. Offer to raise the amount.of the bid.”
    The offer of E. S. Alexander to pay §27,100 for the premises,—one-third cash at the time of sale, one-third in one year, and one-third in two years, the deferred payments to bear interest at eight per cent per annum, and be secured by mortgage on the premises,—upon condition that the title was good, and also numerous affidavits upon the question of the value of the premises, were read in support of the objections. The court, after considering the objections and the offer and affidavits, and listening to the arguments of counsel, overruled the objections, and confirmed the report of the commissioners, and ordered that deed he executed to Pierce; and afterward, on the 13th of April, A. D. 1880, pursuant to agreement of all the parties, the court further decreed as follows:
    “Complainants, by their solicitors, now move the court for a distribution of the purchase money now in the hands of said commissioner, and said defendants, Bridget and Patrick Connelly, being personally present in court, as well as by their solicitors, F. W. Young and J. K. Hannay, and said purchaser being also present, and the court having heard evidence and being fully advised in the premises, doth find that said Bridget Connelly has occupied said premises, as her homestead, ever since the death of Charles Dunn, her former husband, which occurred in October, 1869, and has received the issues, rents and profits thereof; that since and including the year 1874, no taxes have been paid by said Bridget Connelly upon said premises; that it was her duty to have paid the same, and she is chargeable with payment thereof, and that the same be applied upon the amount due her upon her dower, and after charging her with the proportionate amount thereof, the court finds the balance due her upon her dower, to be the sum of $1000, which is" to be paid to her by said commissioner, out of the fund belonging to said complainants, in full of all demands of said Bridget Connelly on account of her dower, which she now consents to and accepts. The court finds that Rosenthal & Pence have paid for abstracts, $235, and orders the same to be paid out of the proceeds. The court being advised, orders that the special commissioner retain his commissions, etc., and pay all the costs, and pay Rosenthal & Pence $235 on account of the abstracts of title so ordered and paid for by them; that he pay to Pierce $1200, the amount allowed him for taxes and tax titles as above, which shall he in full of all claims by him, or of any person claiming under him, to any portion of said purchase money or fund; that the commissioner shall then divide what shall remain in his hands, into two equal parts: one of those parts he shall then pay over to Bridget Connelly, or her solicitor, which shall be in full of her claim as heir-at-law of Charles Dunn, deceased, in and to said premises, and out of the other part of said fund he shall pay Bridget Connelly the sum of ■$1000, which shall be in full of her dower upon said fund, and what shall then remain he shall then pay over to said complainants, their representatives or solicitors, Bosenthal & Pence, one-fourth part thereof, the whole of the balance of said fund so remaining in his hands belonging to said complainants or their legal representatives. Said complainants and defendants, Bridget and Patrick Connelly, in open court, waive and release all errors in this cause, and agree that no writ of error or appeal shall be prosecuted or any bill in equity filed to interfere in any manner with the operation of this decree, and they release all errors which may have intervened in entering up this decree or any decree or order in this cause. ”

    Pierce subsequently conveyed the premises to George M. Pullman. Pullman conveyed to David B. Lyman and H. W. J. Jackson, trustees of the Pullman Land Association, and they conveyed to the Pullman Palace Car Company. Bennett sold and transferred the note and mortgage executed by the Connellys to Kretzinger & Johnson, to Bowen, for $7000. Pierce, in buying the premises, and Bowen; in obtaining the note and mortgage, were, in fact, acting as agents for George M. Pullman.
    The Connellys employed Young & Hannay to represent their interests, some time in January, A. D. 1880; and after this employment, (between January 20 and February 11,) Hannay, of that firm, representing the Connellys, called upon Bosenthal & Pence, the attorneys representing the complainants in the partition suit, and endeavored to obtain their consent to not have a sale of the premises, and to divide them, setting off the share of Bridget Connelly to her so that she •could reside upon it; but they refused to consent either to a division of the property or to a postponement of the sale. On the 17th of February, 1880, Young & Hannay, on behalf of the Connellys, moved the Superior Court for leave to file a bill of review in the partition ease. The grounds upon which the proceeding was sought to be reviewed are not disclosed by the abstract. Eosenthal & Pence, the attorneys for the Dunns and Speck, appeared, and resisted the motion; but the court sustained the motion, and allowed the bill to be filed. At the same time, the attorneys of the Connellys moved for an injunction to stay the sale, etc., in the partition case. This was also resisted by Messrs. Eosenthal & Pence, attorneys for the complainants, and the court refused to grant, the injunction. On the same day, (February 17,1880,) the Connellys, by their attorneys, Young & Hannay, also filed in the Superior Court of Cook county their bill in chancery, against Kretzinger, Johnson & Bennett, praying that the note and mortgage so executed by the Connellys to Kretzinger & Johnson be canceled. On the 13th of March, 1880, Ullman, as the attorney of Beach, notified the Connellys that they w'ould enforce the trust deed against their interest in the proceeds 'of the sale; and thereupon, Beach was made a co-defendant with Kretzinger, Johnson & Bennett, to the bill of the Gon-nellys.. In this .matter Beach was acting simply as the agent •of George M. Pullman. The bill for review and the bill for the cancellation of the mortgage were dismissed after the decree was rendered on the 13th of April, A. D. 1880, and in consequence of the agreement then made.
    Between July 1, 1880, and July 1, 1883, $677,491 was expended in improving this property. There are four solid blocks of cottages upon it, and also a large foundry and roundhouse,- besides other improvements.
    On the 17th day of May, 1880, John I. Bennett brought suit in the Superior Court of Cook county, against Bridget Connelly, for fees for services as an attorney-at-law in the partition .case of Dunn et al. v. Connelly. She pleaded a set-off of the $7000, being the amount received by Bennett from Bowen on account of the mortgage to Kretzinger & Johnson, and claimed judgment for the residue. Trial was had at the September term, 1880, of the Superior Court, resulting in a judgment of $5057.31 for Mrs. Connelly. That judgment was affirmed on appeal to the Appellate Court for the First District; but on appeal to this court, from that judgment, it was reversed, with directions to the Appellate Court to render judgment reversing the judgment of the Superior Court, and direct that court to award a trial ele novo. (Bennett v. Connelly, 103 Ill. 50.) Afterwards, on the 21st of July, 1884, Bennett dismissed that suit. Bridget Connelly thereafter, on the 9th of December, 1884, brought suit in the Superior Court of Cook county, against John I. Bennett, to recover the said sum of $7000 so paid to him by Bowen, on the said mortgage, and that suit was still pending and undetermined when this cause was tried in the Superior Court.
    On the 15th of July, 1883, Bobert John Speck, and James Dunn, by his next friend, Simeon Straus, filed their bill in chancery in the Superior Court of Cook county, alleging therein the filing of the bill for partition before herein referred to, the allegations thereof, and the proceedings therein down to and including the decree of sale on the 4th of August, 1874. It is then alleged, “that Bobert C. Dunn died intestate on October 19, 1874, leaving neither widow nor child, nor parent, him surviving, but leaving him surviving, the complainant, Bobert J. Speck, James Dunn and George Dunn, his only heirs-at-law; that James Dunn and George Dunn are the brothers of deceased Bobert C. Dunn, and that Bobert J. Speck was the only child or descendant and heir-at-law of Ellen Speck, wife of William Speck, formerly Ellen Dunn, a sister of Bobert C. Dunn, who had intermarried with said'William "Speck, the father of complainant, Bobert J. Speck, and that said Ellen Speck died about the 17th day of February, 1852, leaving her surviving, her husband, William J., and said complainant, Bobert J. Speck, her only heirs-at-law; that on July 21, 1879, George Dunn died intestate, leaving him. surviving, no wife nor child, nor father nor mother, but left him surviving, the complainant, Bobert J. Speck, and James Dunn, his only heirs-at-law. ” The execution of the note of $6000, by Bridget and Patrick Connelly, to Kretzinger & Johnson, and the securing of the same by deed of trust to Paul Cornell, on the premises in controversy, is then alleged; the history of the partnership of Bennett, Kretzinger & Johnson, and its "dissolution, and the assignment of the $6000 promissory note to Bennett; and it is then charged, that the Pullman Palace Car Company and George M. Pullman, being desirous of purchasing said premises under the decree of the Superior Court above referred to, on or about January 10,1880, did, by their agent, represent to John I. Bennett, who had been the attorney of Bridget Connelly in said partition suit, that said premises were not of the value, and could not be sold for, two-thirds of the appraisement made in that case, and, by their agent, then entered into an agreement with said John I. Bennett, that if he would procure a re-appraisement of said premises, under the order of the court, and to reduce the amount thereof, and procure an immediate sale of said premises, they would bid in and purchase said premises at a sale to be made by the court, and would, in addition thereto, pay to him the amount so secured by said trust deed; that a release thereof should be executed by the trustee, Paul Cornell, and left with said Bennett, which should be filed for record only after the sale under said decree, and confirmation thereof, and said corporation and said Pullman should make no claim upon Bridget Connelly, or the lands involved, or the procéeds of the sale, and that said bid and said release of said trust deed should not affect the rights of said Bennett to receive and collect his fees of said Bridget, and for advances and expenses in such suit. It is then further charged, in substance, that pursuant to that agreement, Bennett procured a re-appraisement of the property at the sum of $110 per acre, an approval thereof hy the court, and a new order of sale; that on the '20th of January, 1880, the Pullman Palace Car Company •and George M. Pullman paid Bennett, pursuant to the agreement, $7000, the amount due on the note and trust deed, etc., placed a release of the trust deed in the hands of Bennett, to be used as per the agreement; that Bennett caused the premises to be advertised for sale on the 6th of March, 1880; that they were then sold, and bid in by Luther H. Pierce, agent for the Pullman Palace Car Company, and George H. Pullman, for $22,100; that Bennett had no authority to act as attorney for Bridget Connelly after July 1, 1875; that objections were made to the confirmation of the sale by the attorneys for Bridget Connelly, other than Bennett, but that Pullman’s Palace Car Company and Pullman insisted on the confirmation of the sale; that, to induce Bridget Connelly to withdraw her objections to the confirmation of said sale, they caused her to be notified that they would make application to the said court to have the amount due upon said note and trust deed paid out of her share of the proceeds of said sale, concealing from her that the note and trust deed had been released, and thereupon, she, being ignorant of the payment to Bennett, and of the release of the trust deed, consented to the confirmation of the sale, the cancellation of the $6000 note, etc.; that, prior to the confirmation of the sale, a bona Jide offer was made to increase the amount for which the property was sold, $5000; that abundant evidence was produced to the court that said premises were, at the time of the •sale, of the value of at least $30,000 ; that had the sale been set aside, and a re-sale ordered, the premises would have sold for at least $50,000; that it was not, at the time of the sale, known that the premises were purchased for said Pullman Palace Car Company, or said Pullman. It is alleged that complainants resided in England, and had no knowledge of the facts aforesaid; that the sale was finally approved, March 16, 1880, and deed executed accordingly. It is further alleged, that the Connelly trust deed was filed for record after the commencement of the partition suit, and formed no lien upon the premises of the complainants; that the same, in law, could not remain a lien upon the lands in the hands of the purchaser at the sale. It is also further alleged, that for some time prior to the first day of January, 1880, complainant James Dunn was an insane person, duly adjudicated to be such by a court of competent jurisdiction, and was, at the time of the proceedings subsequent to January 1, 1880, and ever since has been, insane, and has been in a hospital for the insane; that the Pullman Palace Car Company and George Pullman had notice of the death of said Robert C. Dunn and said George Dunn, and of the insanity of James Dunn, as before set out. It is further alleged, that the decree finding the interests of the complainant in the partition suit, and the decree of August 4, 1874, ordering a sale of the premises, have never been revived, nor have the deaths of George and Robert Dunn ever been suggested of record, etc. It is alleged, that the sale is null and void, but if any title is vested thereby, it was only the interest of the present complainants, as found by the court in its decree of partition of June 4, 1874,—namely, one-eighth part of the premises, subject to the dower therein of Bridget Connelly; that their interests as heirs-at-law of Robert C. and George Dunn have never been sold. Conveyances are alleged, by the commissioner to Luther H. Pierce, by Pierce and wife to George M. Pullman, by Pullman and wife to Lyman & Jackson, trustees of Pullman Land Association, and by Lyman & Jackson to Pullman Palace Car, Company. Complainants offer to do-equity, and to return to Pullman and Pullman Palace Car-Company, or to whomsoever shall be entitled thereto, the proceeds of said sale. George M. Pullman, Pullman Palace Car Company, Luther H. Pierce, David B. Lyman, Huntington W. Jackson, and Bridget and Patrick Connelly are made defendants. The bill prays that a decree may be entered, vacating and setting aside such sale and order of confirmation, and all orders made subsequent to January 1, 1880, and the deeds executed subsequent to the sale.
    Bridget and Patrick Connelly answered, admitting all the allegations in the bill. They then filed a cross-bill repeating, in substance, the same allegations, and adding that they are very ignorant; that they can neither read nor write, except that Patrick can, with great difficulty, write his own name. They then allege, that on the 11th of September, 1873, George W. Kretzinger and William S. Johnson, by fraud, obtained their signatures to a promissory note for $6000, payable in one year from that date, with interest thereon at ten per cent per annum, payable annually, and their signatures to a trust deed, and their acknowledgment thereof, to Paul Cornell, trustee, on the premises in controversy, to secure the payment of this note. They allege they never intended to execute such note and trust deed, and that when they signed them, and acknowledged the trust deed, they did not know what they were doing, and that there was no consideration for their execution. The sale of the note and trust deed, by Bennett to Bowen, for $7000, is then repeated, as in the original bill, and that the $7000 was, in fact, a bribe paid to Bennett by Bowen to procure him to have a re-appraisement and sale of the property, contrary to the wishes and interests of the cross-complainants, and the prayer is the same as in the original bill.
    Answers were filed by Luther H. Pierce, the Pullman Palace Car Company, George M. Pullman and Lyman & Jackson, putting in issue the material allegations of the bill and cross-bill. It was also set up that Pullman was a purchaser in good faith, without other notice of the condition of the title than that disclosed by the records, for full value, etc.; that he never authorized Bowen to make any conditions or terms in the purchase of the $10,000 note, and trust deed securing it, but simply empowered him to purchase it outright; that he made no contract with Bennett, and authorized no one else to do so.for him, to procure a re-valuation of the property and a sale thereunder; that Lyman & Jackson were purchasers from Pullman, in good faith, and without notice of any of the irregularities charged in regard to the sale; that the Pullman Palace Car Company was a like purchaser in good faith from Lyman & Jackson, without notice, etc.; that the complainants in the original and cross-bills were guilty of laches, in that they knew of all the matters now alleged against the sale in Juty, 1SS0, and yet afterwards stood' by, and, without notice of their dissatisfaction with the sale, saw large sums of money invested upon the property, in buildings and other improvements, upon the faith of the title acquired at the sale.
    The cause was heard on the 21st of" June, 1886, and the court thereupon decreed that both the original and cross-bills be dismissed. From that decree this appeal is prosecuted, and errors are assigned presenting the questions considered in the opinion.
    Messrs. Rosenthal & Pence, for the appellants;
    A court of equity will set aside a judicial sale, and order a resale, if the purchaser is guilty of any fraud. Comstock v. Purple, 49 Ill. 158; Coffey v. Coffey, 16 id. 141; Bethel v. Sharp, 25 id. 173 ; Lloyd v. Malone, 23 id. 48; Wilson v. Kellogg, 77 id. 47; Haas v. Building Society, 111 id. 176.
    By the death of a party after decree, a suit abates, and no title will pass until the proceedings are revived by making the necessary parties. Story’s Eq. PI. sees. 366, 369, 387; Lube’s Eq. PI. 192 ; Brown v. Parker, 15 Ill. 307; Laflin v. Herrington, 16 id. 301; Clingman v. Hopkins, 78 id. 152; Welch v. Louis, 31 id. 455; Ice Co. v. Slee, 2 Paige, 364.
    Was 'Mrs. Connelly guilty of laches in bringing her suit? Laches can not be attributed .to a party until he shall have knowledge of the facts upon which it is based. Clapp v. Peterson, 104 Ill. 26.

      A party can not assert laches as a defence who has himself been guilty of the fraud upon which the action is based. Bigelow on Fraud, 446.
    Mere delay, short of the Statute of Limitations, in not sufficient to bar a right. It is only where, by such delay, the adverse party is led into a course of conduct which he would not have otherwise pursued, that the defence of laches can be considered. Gibbons v. Hoag, 95 Ill. 69 ; Hefner v. Vandolah, 57 id. 520.

      Laches can only be invoked when the party claiming has been guilty of such gross negligence as to amount to a constructive fraud. Brant v. Coal Co. 93 U. S. 326; Henshaw v. Bissell, 18 Wall. 255; Bigelow on Fraud, 440.
    Lapse of time will be no bar against actual fraud on the part of the person invoking. Bigelow on Fraud, 446; Hefner v. Vandolah, 57 Ill. 520; Preston v. Mann, 25 Conn. 118.
    It is essential in order that laches should be a bar, that the other side should be acting in ignorance of the real condition of his title, and in the supposition that he was rightful in his own dealing. 2 Pomeroy’s Eq. Jur. sec. 818, note; Kerr on Fraud, (Am. ed.) 133, 138; Rennie v. Young, 2 DeG. & J. 136; Kinney v. Brown, 3 Ridg. 518; McCormick v. McMurtie, 4 Watts, 192.
    Mere silence by the rightful claimant, and making of improvements by the other party, is not sufficient to constitute laches. There must be some ingredient in the transaction which would make it a fraud in the owner to insist upon his legal right. Silence will postpone only where silence is a fraud. Devereux v. Burgwyn, 5 Ired. Eq. 351; 2 Pomeroy’s Eq. Jur. sec. 812.
    Messrs. Isham & Lincoln, for the appellees:
    Having elected to take the purchase money, Mrs. Connelly can not repudiate the sale. Byars v. Spencer, 101 Ill. 429; Kellogg v. Turpie, 93 id. 265; Searle v. Galbraith, 73 id. 269.

      Pullman had no notice of any fraud, and if he had, his knowledge as an individual would not be notice to the company when it came to buy land from him. Savings Bank v. Chase, 72 Me. 226; Barnes v. Gas Light Co. 27 N. J. Eq. 36.
    The tenancy in common, in this case, was the exact equivalent of a joint tenancy, and the death of one complaining joint tenant does not render a suit defective, because his interest survives to the others. Adams v. Dowding, 2 Mad. 53 ; Story’s Eq. PI. sec. 353; Daniell’s Ch. Pr. *1511.
    If the death of the two complainants had been suggested, nothing would have been necessary beyond an order reciting the facts. The irregularity, if any, could not vitiate the subsequent sale. Danforth v. Danforth, 111 Ill. 236; Bunker v. Green, 48 id. 243; Stoetzell v. Fullerton, 44 id. 112.
    As to suits by insane persons, see Titcomb v. Vantyle, 84 Ill. 371; Searle v. Galbraith, 73 id. 269; Halfhide v. Robinson, L. E. (9 Ch. App.) 373.
    Messrs. Lyman & Jackson, also for the appellees:
    The death of one of the plaintiffs did not abate the suit. Rev. Stat. chap. 1, sec. 21; Stoetzell v. Fullerton, 44 Ill. 112; Hopkins v. Medley, 97 id. 410. See, also, Bunker v. Green, 48 id. 243; Freeman on Judgments, see. 153, and cases cited; Spalding v. Wathen, 7 Bush, 659; Coleman v. McAnulty, 16 Mo. 173 ; Camden v. Robertson, 2 Seam. 508; Hayes v. Shaw, 20 Minn. 405; Powell v. Washington, 15 Ala. 803; Reid v. Holmes, 127 Mass. 326.
    The same rule applies in case of the death of several of the parties. Freeman on Executions, see. 36; Bowdoin v. Jordan, 9 Mass. 160; Hamilton v. Lyman, id. 14; Cushman v. Carpenter, 8 Cush. 388; Withers v. Harris, 2 Ld. Raym. 808; Howell v. Eldridge, 21 Wend. 678; Story’s Eq. PL sec. 357.
    A judgment in favor of or against a lunatic is binding. Freeman on Judgments, sec. 152; Lamprey v. Nudd, 9 Fost. 299; Wood v. Bayard, 63 Pa. 320; Foster v. Jones, 23 Ga. 168; Savings Bank v. Spencer, 53 Cal. 737; Stigers v. Brent, 50 Md. 214; Johnson v. Pomeroy, 31 Ohio St. 247.
    Judgments against them, it is said, are neither void nor voidable. They can not be reversed for error on account of ■defendant’s lunacy, the proper remedy in favor of a lunatic being to ajjply to chancery to restrain proceedings, and to compel the plaintiff to go there for justice. Clarke v. Dunham, 4 Denio, 262; Sternbergh v. Schoolcraft, 2 Barb. 153; Robertson v. Lain, 19 Wend. 650.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The questions arising upon the original bill are: First, did the suit for partition abate by reason of the deaths of George and Robert C. Dunn; second, was the decree of sale inoperative as against the interest of James Dunn because he was insane at the time it was rendered; third, did the sale by Bennett, of the note, and trust deed securing it, prejudice the rights of the complainants. It is clear each must receive a negative answer.

First—Our statute provides, (Rev. Stat. 1874, chap. 1, title, “Abatement, ” sec. 22): “No suit for the partition of land shall abate on account of the death of any party thereto, but it may be continued in the name of the survivors, if the interest of such deceased person survives to them. ” It is not proved that the deceased parties, or either of them, conveyed ■or contracted to convey their interest to other parties, and there is no legal presumption that they did so, in the absence of evidence. Both died intestate. Neither had ever been married, and their father and mother died before either of them, and so their only heirs-at-law were their co-complainants surviving, to whom their interest in the property, which is the subject of the suit for partition, “survived,” adopting the phraseology of the statute. Apart, even, from the language of the statute, it would be difficult to assign a reason why the suit should abate, since all the parties in interest, and to be affected by the decree, were already before the court, and the deaths, instead of destroying the interests of the surviving complainants in the subject of litigation, only operated to change the title of those interests which had before belonged to the deceased, and vest it in the surviving complainants.

Second—James Dunn is described, in the bill filed herein on his behalf, as a lunatic, who sues by Simeon Straus, his next friend; and the deposition of Robert J. Speck was read in evidence, on the hearing, in which, among other things, he deposed that “James Dunn is now an inmate of the county insane asylum, at Beverley, ” (i. e., in the county of York, ■England.) “He is insane. He was insane on January 1, 1880, and has been ever since that time. I believe that he was committed to such asylum by the guardians of the poor, who had found him insane. ” The only other evidence on the question is found in a letter from W. J. & P. Reed, solicitors, Hull, England, to Rosenthal & Pence, complainants’ attorneys, dated February 16, 1880, in which they say: “We find that the persons now entitled to the property are J ames Dunn, (who is at present residing at the asylum at Beverley, in the county of York, but who, we understand, is at liberty to be discharged at any time,) and our client, Mr. Robert J. Speck. When this lunacy began, or what its character is, we are not informed. It may. have been that the lunacy was only partial,—that is, as respected particular matters,—and that it did not affect his capacity to transact business, and, if so, it is impertinent to any question in the present case. (Searle v. Galbraith, 73 iLL. 269; Titcomb v. Vantyle, Sr. 84 id. 371.) We are not required to assume, from the evidence, that this lunacy existed when the suit was commenced; but if it did, no conservator having been appointed under our statute, the suit might be prosecuted in the name of the lunatic. (Chicago and Pacific Railroad Co. v. Munger, 78 Ill. 301.) But the .partition suit here, is, under our statute, an action at law. (Hopkins et al. v. Medley, 97 Ill. 402.) And it is well settled! that a judgment at law is neither void nor voidable merely because the plaintiff is a lunatic. Freeman on Judgments, sec. 152; Lamprey v. Nudd, 9 Foster, 299; Wood v. Bayard, 63 Pa. St. 324; Foster v. Jones, 23 Ga. 168; Sacramento Savings Bank v. Spender, 53 Cal. 737; Stigers v. Brant, 50 Md. 214; Johnson v. Pomeroy, 31 Ohio St. 247; Robertson v. Lain, 19 Wend, 650; Clarke v. Dunham, 4 Denio, 262; Sternbergh v. Schoolcraft, 2 Barb. 153; Walker v. Clay, 21 Ala. 797.

Third—In Bennett v. Connelly, 103 Ill. 50, we were misled by the evidence then before us, and induced to believe that the purchaser at this partition sale paid Beach $7000 to procure a release of the deed of trust, and that, but for that payment, that amount would have been paid by the purchaser to the commissioner, in addition to the other sum paid by him, as the purchase price of the property; and hence that it was, in fact, so much purchase money, and, as such, entitled to be distributed to all the parties in interest. The evidence in this record shows, beyond all doubt, that that view was erroneous. Beach did not receive any money from anybody. In truth, he only held the note and deed of trust for Pullman, and Pullman did not receive any money from any source because of his ownership of the note and deed of trust, nor was the amount bid for him, at the sale, reduced or abated by reason of his ownership of the note and deed of trust.

The facts are, briefly, after the suit for partition was commenced, on the 11th of September, 1873, the Connellys executed their promissory note to Kretzinger & Johnson for $6000, payable one year after date, with interest at the rate-of ten per cent per annum, and to secure the payment of this note they executed a deed of trust upon the premises in controversy, to Paul Cornell, trustee. The deed of trust was, therefore, necessarily limited to and binding only upon the interest of the Connellys in the premises, and after the ■decree for sale, it followed their interest in the proceeds, and affected it only. It was no incumbrance upon the interest nf the complainants in the original bill, and could in nowise adversely affect that interest. (Loomis v. Riley, 24 Ill. 307.) That note, and, with it, the trust deed, passed by assignment to John I. Bennett; and on the 20th of January, 1880, Bowen, as agent of Pullman, either paid off the note or purchased it, and the deed of trust, paying Bennett, at the time, as the consideration, $7000. It is impossible that this could have injured the complainants, since it had no reference to their interest in the premises. Assume that the trust deed was a nullity, this payment took nothing from them to which they were entitled, and it added no burthen to their property. Assume it was valid, it bound only the interest of the Connellys in the proceeds of the sale, and the question of whether Bennett should hold or transfer it, could, by no possibility, affect any one but himself and the purchaser. Bowen, as the agent of Pullman, simply placed the note and deed of trust in the hands of Beach, another agent of Pullman, who held them at the time of the sale of the property.

The evidence is ample that the sale of the property, after the re-appraisement, was not against the wishes of the complainants in the original bill, but that, on the contrary, it was, if not entirely brought about, certainly encouraged by the attorneys of these complainants, and they afterwards insisted, in court, upon the confirmation of the sale. The evidence, moreover, fails to show that the amount for which the property was sold was less than it would have been had not the deed of trust been executed, or apparently subsisting as a lien at the time of the sale.

Coming now to the questions arising upon the cross-bill, and waiving all question of the right to file a cross-bill in the state of facts set up, we are of the opinion that the ruling below was right, for several reasons.

First—The evidence is insufficient to sustain the allegation that Bowen bribed Bennett to procure a re-appraisement of the premises, and decree therein directing their sale. As has been stated, the note and deed of trust were obtained from Bennett by Bowen, and Bowen is dead. The only person living who knows W'hat the contract between them was, is Bennett, and he denies the charge. He positively asserts that negotiations between Bowen and himself, in regard to the note and mortgage, did not occur until after the decree was entered appointing commissioners to re-appraise the premises, and he denies that the decree was entered pursuant to any previous understanding between himself and Bowen. Pullman denies that he ever authorized Bowen to employ Bennett to procure the entry of a decree for the re-appraisement of the premises, and a sale pursuant thereto. But complainants claim that the charge is proved by the circumstances detailed by Bennett in his evidence. He says that Bowen did not buy the note and deed of trust of him, but simply paid §7000 for the satisfaction of the note and the release of the deed of trust, subject to the right of Bennett to have him hold them as unsatisfied until Bennett could effect an arrangement with the Connellys for the payment of reasonable attorneys’ fees, Bennett meanwhile holding a release of the deed of trust, which he would place on record if Bowen attempted to collect the note. And it is argued, that since the deed of trust (being executed pendente lite) was only a lien on the interest of the Connellys in the proceeds of the sale, and was no incumbrance to the title which would pass to the purchaser at the sale, and could, hence, be no impediment to the sale, Pullman got nothing for the §7000; that the sum was not intended as a gift to Bennett, and must, therefore, have been paid to bribe him to procure the reappraisement and sale thereunder of the premises. Pullman testified that Bowen’s authority was limited simply to purchasing the note and deed of trust; that he "was, himself, informed of the existence of the deed of trust, and that there was a controversy between the Connellys and the holder of it, and he was advised by his legal counsel to buy it; and the claim that Bowen did buy the note and deed of trust has strong support in the facts, clearly established; that the note and deed of trust passed into Bowen’s hands uncanceled, and • without any indorsement or accompanying writing evidencing an agreement that they were, conditionally or otherwise, to be canceled. Of course, it is not claimed that if Bowen, in fact, did purchase the note and deed of trust, there is, under the circumstances, anything unreasonable or unusual in the transaction.

But assuming, as perhaps, under the evidence, we must, that Bennett’s -memory is not at fault, still,-inasmuch as his evidence clearly shows that Bowen thought that the trust deed incumbered the land (not the mere interest of the Connellys in the proceeds of the sale) so that the purchaser must purchase subject to the lien, and other evidence also shows that Pullman was making purchases of land in that vicinity for the purpose of building up large manufacturing establishments, and that the ownership and possession of this land was desired as being necessary to that end, and Bowen was informed that the Connellys would contest the validity of the deed of trust, and, he supposed, thereby delay, materially, the sale of the land, there is nothing so improbable as to excite disbelief that he might have thought it pro-motive of Pullman’s interests to pay $7000 to, in the language of Bennett, “remove the deed of trust as a bone of contention, ” and an impediment to the sale. The delay of the sale, for any length of time, might have put it out of his power to carry out his scheme, and have worked loss many times greater than $7000. It is true, this desire of and necessity for a speedy sale might have impelled to the employment of Bennett to forward the sale, if that had been possible; but where two motives,—one lawful and the other unlawful,—are presented, we are to assume, in the absence of satisfactory evidence to the contrary, that the lawful motive controlled.

If Bennett’s evidence shall be accepted as conclusively establishing that Bowen did not buy the note and deed of trust for Pullman, why shall it not also be accepted as conclusively showing that the money was paid by Bowen for the purpose of removing the deed of trust as an impediment to the sale, under the erroneous opinion that it was, in truth, an impediment? It is not apparent why he should have desired to speak falsely in one respect more than in the -other, and his opportunity of knowing is the same in both respects. Undoubtedly it .was expected, when the $7000 was paid, that the property would be advertised for sale at an -early day. But there were reasons why those controlling the matter should have desired that, and it would not, therefore, have seemed necessary to have incurred great expense to that end. An offer had been made, by another agent of Pullman, to bid for the land, if it should be offered for sale, at least $125 per acre. This was then thought to be a price justifying its sale. The taxes on the land had not been paid pending the litigation, and there had been sales for the delinquent taxes, and it was feared that titles might be acquired in this way, with the aid of the limitation laws, that would defeat the title of the parties concerned in the partition suit. In any event, it was realized the unpaid taxes, accumulating by delay, with attendant interests, penalties and costs, were becoming a serious burden to the premises. Bennett had advanced considerable sums of money in payment of costs and expenses of litigation, and he was needing his money. Payment, also, of the petitioner’s attorney’s fees had been deferred until money should be realized from the sale of the promises, so that the attorneys on all sides were anxious for an early sale, and professedly acted to that end.

The evidence, moreover, fails to establish that Pullman, or his agent, Bowen, knew that Bennett was acting contrary to instructions of his clients, or that he agreed that he would act disregarding their wishes, and it expressly shows that, in truth, Bennett did not control the sale. Bennett, after the order of sale was made, requested the commissioners to advertise the property. This was on or about the 3d of February. After that, Bennett did nothing. The Connellys, some time in January, employed Yóung & Hannay to prevent the sale and to get the trust deed canceled. They notified Bennett of their employment, in January, and although they did not have a formal order entered of record substituting themselves as attorneys for the Connellys, in the partition suit, until the 8th of March, they, in fact, acted as such attorneys after the 3d of February, and Bennett ceased to-act after that date. On the 11th of February they applied to the attorneys representing the Dunns and Speck, in the partition suit, and requested them to consent to postpone the sale, but those attorneys declined to accede to the request. No one representing Pullman prevented compliance with that request, and no act of Bennett stood in the way. Young & Hannay, as the attorneys of the Connellys, thereafter prepared a bill of review of the partition case, praying therein that the sale be enjoined, and on the 17th of February the attorneys of the Dunns and Speck appeared in court, and resisted the filing of that bill and the enjoining of the sale, and the court, although allowing the bill for review to be filed, refused to enjoin the sale. Bennett was not present, and he did nothing to then prevent the sale being enjoined.

Again, if the Connellys were injured by the sale being made when it was made, they should have interposed that objection to a confirmation of the commissioner’s report. It will be seen, by reference to the statement" preceding this opinion, that they filed seven objections to the confirmation of the commissioner’s report of sale, neither of which is that the re-appraisement and sale thereon were procured by the bribery of their attorney, nor that the sale was made at an improper time. The hearing of the exceptions was continued until the 13th of April. At no time did the Connellys ask leave to add an exception that the re-appraisement and the sale thereon were procured by the bribery of their attorney, or that the sale was made at an improper time, and yet, at that time, the evidence is clear that the Connellys and their attorneys had been informed of all that they now know in regard to the sale of the note and deed of trust by Bennett to Bowen. This is a judicial sale. (Freeman on Co-tenancy and Partition, sec. 548.) And the rule is, that the order of confirmation is conclusive as to all matters upon which the court-might have been called upon to pass, had the parties chosen to have brought them forward as objections to the confirmation. Freeman on Void Judicial Sales, sec. 44. See, also, authorities cited in note three.

Second—It is urged that by reason of the Connelly’s ignorance of the facts that Bennett had received §7000 in satisfaction of the note, and that he held a release of the trust deed, they were induced to make a compromise, and consent to abandon the right to sue out a writ of error and prosecute an appeal, which, but for such ignorance, they would not have done. This, in our opinion, admits of two answers: First, they then knew, or ought to have known, of everything in this respect that .they now know; second, if the note and ' trust deed were illegal, or were subject to any defences, the Connellys always knew it. When Bowen obtained them, the note was several years past due, and Beach obtained them still later, and so they were, in the hands of Bowen o,r Beach, subject to any and every defence that they were in the hands of Bennett. The transfers of the note and trust deed, therefore, in nowise changed or affected the question of the liability of the Connellys, or its exten' In no possible way could they be injured by that transí eb. Young & Hannay, as their attorneys, about the 17th of February, 1880, filed a bill in their behalf, against Kretzinger & Johnson and Bennett, praying that the deed of trust be canceled. Subse-; quently, after the sale and before its confirmation, Beach served a notice upon the Connellys that he held the note and deed of trust, and that he would move the court for an order directing the commissioner to pay the amount of the note out of the proceeds of the sale coming to them, and they, thereupon, made Beach a defendant to the bill to cancel the deed of trust. Now, if they were entitled to have the deed of trust canceled when it was in the hands of Bennett, no reason has been suggested, and none has occurred to us, why they were not entitled to have it canceled on this bill. So, too, if, as against Bennett, the Connellys were entitled to set up a partial defence to the note, it would seem clear that they were entitled to set it up as against Beach, for he simply stood in the shoes of Bennett.

No reason is disclosed by the evidence for claiming that anything that belonged to the Connellys passed in the transaction between Bowen and Bennett. The money was that of Pullman, and its payment imposed no liability on the Connellys to reimburse him because of the payment; and the note and trust deed, whether valid or invalid, worthless or valuable, were, in no sense, their property. If, however, the note and trust deed were valid and binding upon the Connellys for the payment of all or a part of the sum expressed in the note, and Bennett intended, by the transaction with Bowen, to make a gift to them, he might impose his own restrictions, and require, as he claims he did in his contract with Bowen, that the release of the deed of trust should not be placed upon record until his reasonable attorney’s fees were arranged.

In neither view, therefore, is there any ground for saying the Connellys were deprived of any legal rights because knowledge of the transaction between Bowen and Bennett was withheld from them. It may be that Pullman, through the ignorance of his agents, paid Bennett $7000 which he would not have paid but for that ignorance; but this does not injure the Connellys. The evidence clearly shows that the sale was open to the competition of all, that an unusual number of persons were present and participated in the bidding, and that the bid of Pullman’s agent, upon which the property was knocked off, was the highest, and that it was fairly made. Some persons had heard rumors that Pullman was intending to establish a large manufacturing establishment in the vicinity of this property, and that he therefore desired it, and were thereby induced to make, bids they otherwise v'ould not have made. The proof is made that the price paid for the property is much beyond what it would have brought, but for the contemplated improvements by Pullman. It is conceded that Pullman was authorized to act through agents, if he chose to do so, and that he was under no obligation to disclose to the public the character and extent of the improvements he was designing to make, before he made his purchases of property; and it must be conceded, upon like principle, to be likewise true that the fact that he would pay a much larger sum for the property, if it were necessary to secure it, than the amount he bid, is unimportant, if the sale was, in other respects, fairly conducted, and he was the highest bidder.

There is no ground for holding that the deed of trust affected the bidding. One witness, it is true, (J. H. Scott,) testified that “if the trust deed had been cleared off and released and settled, ” he would have bid more than he did ; but he does not say that he would have bid more than the premises were sold for. No other witness testifies that he has knowledge of any other bidder being affected by the trust deed in his bidding. There is no reason, as we have seen, why the failure to revive the partition suit, after the deaths of George and Bobert G. Dunn, or the insanity of James Dunn, should have affected the bidding, and there is no proof that, in fact, they did.

Third—The decree of confirmation was renderd on the 13th of April, 1880, and the Connellys, soon after, accepted the money due them on the basis of that decree. They lived where they witnessed, daily, or could witness, the uses to which the property was put after the purchase, and improvements placed upon it, and they have continued to live there. The present bill was not filed until the 15th of August, 1883, and the cross-bill was filed,later. Between July 1, 1880, and the filing of the bill, expenditures had been made for improvements upon this property, amounting to $677,491. These included foundry, (commenced to be built June, 1881,) roundhouse, (commenced to be built in April, 1881,) and railroad tracks and other improvements, commenced in 1880. In September, 1880, to a suit brought by Bennett, against Mrs. Connelly, for attorney’s fees, she pleaded as a set-off, the $7000 paid by Bowen to Bennett, as so much money received by him as purchase money for the property, and she was allowed the amount, after deducting therefrom attorney’s fees, by the judgment of the court. The ease was appealed, first, to the Appellate Court, and finally to this court, where the judgment was reversed; but the litigation was pending until after the filing of the present cross-bill. We are inclined to think, under the circumstances, that, even if it' had been competent for the Connellys to have had the sale set aside, if application had been promptly made for that purpose, they were guilty of such laches as should alone now prevent it. Hoyt et al. v. Pawtucket Inst. for Savings, 110 Ill. 390; Clapp et al. Exrs. v. Peterson, 104 id. 26.

The decree, is affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Mulkey

license: Public Domain

text:
    Daniel F. Shirk v. The People of the State of Illinois.

      Filed at Ottawa May 12, 1887.

    1. Criminal law—making or passing fictitious bill, note, etc.—what character of instruments embraced therein—the statute construed. Section 107 of the Criminal Code, making it an offence to make, pass, utter or publish, with intent to defraud, any fictitious bill, note or check, purporting to be the bill, note, check, or other instrument, in writing for the payment of money or property, of some individual, when no such individual is in existence, knowing the same to be fictitious, embraces only such instruments in writing as contain an absolute or unconditional promise to pay money or property to the person therein named. It does not include contracts for the payment of money upon a sale of property upon its delivery at a certain time, or agreements to pay money upon a contingency that may never happen.
    2. Construction of statutes—of general words following an enumeration of particular cases. It is a well recognized rule in the construction of statutes, that if general words follow an enumeration of particular cases, such general words are held to apply only to cases of the same kind as those which are expressly mentioned.
    3. Same.—the rule as applied to section 107 of the Criminal Code. So, under a statute making it criminal to make or pass a fictitious bill, note or check, or other instrument in writing, for the payment of money, etc., the words, “other instrument in writing, ” will only include such instruments as are of the same class or kind as those enumerated, such as money, bonds, due bills, and other instruments in writing containing an absolute, unconditional promise or obligation to pay a sum of money or personal property.
    Writ of Error to the Circuit Court of Stephenson county; the Hon. William Brown, Judge, presiding.
    Mr. J. A. Crain, for the plaintiff in error:
    The phrase, “other instrument in writing, ” first occurs in the act of 1827, relating to negotiable paper, and our courts hold, that this statute, still in force, applies only to absolute and unconditional promises to pay money or deliver personal property. Thompson v. Armstrong, Breese, 39; Canadian Bank v. McCrea, 106 Ill. 289.

      The enumeration or' specification of certain things in an. act, which belong to a class distinguished from another class within which nothing is mentioned, shows that the mind had in view things of the former class only; and then, if the draftsman adds, “all others, ” these words will be understood as referring to “other things ” within the class. Bishop on Stat. Crimes, sec. 247.
    Tested by this criterion, section 107 of the Criminal Code intends, and its legal effect is, to read, note, bill or check, or other instrument in writing for the like payment of money .or property. And the money or property must be payable absolutely and unconditionally.
    Mr. George Hunt, Attorney General, and Mr. Oscar E. Heard, State’s Attorney, for the People:
    In Bishop on Stat. Crimes, sec. 247, that author says, there are cases to which the rule does not apply, and that “when it does not, in legal principle, and it is believed on the weight of authority, the general words should not be thus restrained.” It will be presumed that every word in a statute was inserted for some purpose. Bloom v. Richards, 2 Ohio St. 402.
    General words in a statute must receive a general construction, unless there is some ground for restraining them. Beckford v. Wade, 17 Ves. 91; Bank v. Dalton, 9 How. 522.
    In a criminal case, the Supreme Court of Indiana construed the "words, “other articles,” in the statute for the protection of religious meetings, etc., (Acts 1859, p. 126, and Acts I860, Sp. Sess., p. 201,)‘ to mean, not merely articles specifically named in the statute, but all “other articles,” although of a very different kind, grade or class from those mentioned specifically. State v. Solomon, 33 Ind. 450.
    For additional authorities, by which we think our theory of the construction to be placed on the phrase, “or other instrument in writing, ” is upheld, we refer to State v. Holman, 3 McCord, 306; Shropshire v. Glascock, 4 Mo. 536; Boynton v. Curle, 4 id. 599; Commonwealth v. Percavil, 4 Leigh, 686; Vicaro v. Commonwealth, 5 Dana, 504; United States v. Pearce, 2 McLean, 14; Caldera. Deleisseline, Harper, 186; Eubanks v. State, 5 Mo. 450; State v. Wilson, Cheves, 163; Rex v. Parker, 1 Leach, 320; Riley v. State, 9 Humph. 646; State v. Cooper, 5 Day, 250; Rex v. Blick, 4 Car. & P. 377; State v. Edmund, 4 Dev. 340; Commonwealth v. Wyatt, 6 Rand. 694; Regina v. Oldham, 14 Eng. L. & Eq. 568; State v. Mosely, 14 Ala. 390; Rex v. Coates, 6 Car. & P. 394; Jennings’ case, 2 Lewin, 130; Elmsly’s case, 2 id. 126; Crow v. State, 6 Texas, 334; Blemer v. People, 76 Ill. 271; Bishop on Stat. Crimes, (ed. of 1873,) 70.
   Mr. Justice Mulkey

delivered the opinion of the Court:

At the December term, 1886, of the circuit court of Stephenson county, Daniel F. Shirk was tried and convicted of the crime of uttering and publishing an alleged fictitious instrument in writing, for the payment of money, his punishment being fixed at two years confinement in the penitentiary. By the present writ of error we are asked to review that conviction.

The indictment is founded on the 107th section of the Criminal Code, which, so far as it is supposed to have any application to this case, is as follows: “Whoever shall make, pass, utter or publish, with an intention to defraud any other person, any fictitious bill, note or check, purporting to be the bill, note or check, or other instrument of writing for the payment of money or property, of some *' * * individual, when in fact there shall be no such * * * individual in existence, the said person, knowing the said bill, note, check, or instrument of writing for the payment of money or property, to be fictitious, shall be imprisoned in the penitentiary not less than one nor more than twenty years.”

The count in the indictment upon which the defendant was convicted, charges, that on the 20th of July, 1885, in Stephenson county, in the State of Illinois, Daniel F. Shirk feloniously did utter, publish and pass, as true and genuine, a certain false and fictitious instrument of writing for the payment of money, to one Harvey F. Perkins, he being then and there the H. F. Perkins in the instrument mentioned, which instrument then and there purported to have been signed by one Morton Walldecker, when in fact there was no such individual in existence, said Shirk then and there knowing said instrument to be false and fictitious, with intent thereby then and there to defraud said Harvey F. Perkins, which instrument is of the following tenor:

“Harvey F. Perkins’
Marble and Granite Works, Lena, III.
Adline, July 17, ’85.
“I have this day bought of H. F. Perkins, marble gravestone, of the following size: .....feet,.....inches long, by.....inches wide,.....inches thick, to be in style and finish of No.....of his drawings or photographs. One..... one marble monument of the following size: Limestone base, 1-0 x 2-2 x 2-2; marble base, 0-10 x 1-7 x 1—7; die, 2—2 x 1—2 x 1-2; 0-5 x 1-1J x 1—Ij-; 0-1 x 1—6 x 1-6 ; plinth; column ; cap; urn, 1—5 x v-9 x v-9; final, statuary, to be in style and finish of No.....of his drawings or photographs, with the exception of.................. To be inscribed as follows: ..........................................
“To be delivered and set in Foreston freight office, Ogle Co., 111., on or about the 5th day of November, 1885, or as soon as convenient thereafter, for which I agree to pay the sum of $165 on delivery of said monument.
“Dated at Adline, this 17th day of July, 188 .
Morton Walldecker.
“P. O. address: Adline, County of Ogle, State of Illinois. ”

The principal question presented for determination is, "whether, assuming the instrument set out in the indictment to be fictitious, is it such a one as falls within the category of instruments contemplated by the section of the statute above cited. If it does not, of course the conviction can not be sustained, and it will therefore be unnecessary to consider other questions discussed in the briefs.

It is clear that the instrument is neither a bill, note, nor a check, according to either the popular or technical signification of those terms, and this is practically conceded by counsel for the State; but the contention is, that it is embraced within the general designation, “other instrument in writing. ” This phrase seems to have been first introduced into our statute relating to negotiable instruments, in 1827, and it has from that time till the present, been the settled construction of this court, that in that connection it extends only to such instruments in writing as contain an absolute or unconditional promise to pay money or property to the payee therein named, or his assignee. This construction is fully recognized and approved in the late case of Canadian Bank v. McCrea et al. 106 Ill. 281.

In the section upon which the indictment is fOund'ed, the enumeration is, “fictitious bills, notes, checks, or other instrument in writing. ” In the act relating to negotiable instruments, it is, “all promissory notes, bonds, due-bills, and other instruments in writing." Considering the expression, “other instrument in writing, ” as it occurs in the Criminal Code, is taken from the act on negotiable instruments, and that it follows, in both acts, a specific enumeration of the same kind or class of 'instruments, there is certainly much force in the claim that its construction should be the same in both acts. This conclusion is certainly much strengthened by the fact that it is in strict conformity with the well recognized rule of construction, that “if general words (as is the case here) follow an enumeration of particular cases, such general words are held to apply only to eases of the same kind as those which are expressly mentioned. ” Potter’s Dwarris, 247, 248 ; In re Swigert, 119 Ill. 83.

Applying this principle to the present case, it is very clear the expression, “or other instrument in writing, ” would only include such instruments as are of the same class or kind as. those mentioned, which would include, money bonds, due-bills, and all other instruments in writing containing an absolute, unconditional promise or obligation to pay a sum of money or personal property. If this is not the test, where is the line to be drawn? It certainly could not have been intended to-include all written contracts, which, if genuine, one or the-other of the contracting parties would, upon certain contingencies, be required to pay money or property under,—such, for instance, as a contract for the purchase of a horse, to be paid for on delivery at a future day. The instrument or contract, in question does not, in principle, differ from the ease suggested. It is, in form, a contract in writing for the purchase-by Walldecker, from Perkins, of a marble monument, to be delivered on a future day, and paid for on delivery. • By the terms of the instrument it was wholly uncertain whether the-money would ever become payable. That depended altogether upon whether the monument was put up and tendered at the time and place specified in the instrument. If the statute was intended to extend to a fictitious contract like this, then it would apply to every executory contract where either of the parties bound himself to the other, though upon a mere contingency, for the payment of money or personal property. This can not be a proper construction of -the statute. If such was the intention of the legislature, the language used certainly fails to express it. Contracts like the one under consideration, are seldom, .if ever, the subject of sale or transfer, like bills, notes, checks, etc., hence it was not thought necessary to protect society from the sale of fictitious contracts which impose a merely contingent obligation to pay money or property.

We are clearly of opinion that the indictment under- which: the defendant was convicted is fatally defective, and that; the court therefore erred in overruling defendant’s motion to> quash it.

For the reasons stated, the judgment of the court below is reversed, and the cause remanded, with directions to quash the indictment and discharge the defendant.

Judgment reversed»


author: Mr. Justice Shops

text:
    True Blake v. James Sweeting et al.

      Filed at Ottawa May 12, 1887.

    1. Partnership—dissolution—by withdrawal of one partner. A partnership, when not formed for any definite time, may be dissolved by any member of the firm, at bis pleasure. The withdrawal of one of the members of a firm is, in fact and in law, a dissolution of the firm.
    2. Where one of three partners abandoned the business and property of the firm, and refused to participate in a settlement of the business, saying the other partners might settle as they pleased, this was held a dissolution of the firm; and when the other two took the partnership effects and credited the old firm with the same, and entered into a new partnership, it was held that the dissolution was assented to by all the members of the old firm.
    3. Limitation—as to an accounting between partners. Upon the dissolution of a partnership, a right of action accrues to either partner to have an accounting of the partnership affairs, and the Statute of Limitations then begins to run, and the bar to the action will be complete in five years thereafter.
    Writ of Error to the Appellate Court for the Second District;—heard in that court on writ of error to the Circuit Court of Livingston county; the Hon. Franklin Blades, Judge,, presiding.

      The original bill was filed by plaintiff in error on June 7, 1876, to effect a settlement of the co-partnership of Blake, Huston & Co., a firm composed of True Blake, John Huston and James Sweeting. Sweeting answered, admitting the partnership, but averred its dissolution and business ended in January, 1871, and set up and relied on the Statute of Limitations as a bkr to the complainant’s right of action. On December 4, 1877, plaintiff in error amended his bill, alleging that after Huston had gone away, in the spring of 1871, the complainant and Sweeting continued the business of the firm during that year, and praying account as to such year’s business. Sweeting answered the amended bill, and averred, that after Huston went away, Blake and himself, in the spring of 1871, went into business together on their own account, as Blake & Sweeting, using the property of the old firm, but conducting a separate business and opening new books of account, and that the business of the new firm continued till the month of January, 1872, when it closed, and setting up and relying upon the Statute of Limitations as to the matters disclosed in the amended bill.
    The fact appears to be, that early in 1868 a co-partnership was formed, under the style of Blake, Huston & Co., between True Blake, John Huston and James Sweeting, for the manufacture and laying of brick,—Blake being the brick-maker and Huston and Sweeting the brick-layers,—and that the firm continued in business till early in 1871. About April, 1871, Huston went away, abandoned the business of the firm, and thereafter had nothing to do with its business or affairs. Blake kept the books of the concern, but there had been no settlement of its affairs between the partners. Blake went to Griggsville to get Huston to join in a settlement, and Huston promised to come to Normal for that purpose, but instead, Huston wrote Blake there was no use in his coming, as he had, no money, and that Blake and Sweeting could settle the partnership as they pleased. Thereafter, and. about June, 1871, Blake and Sweeting acquiescing in Huston’s withdrawal, formed a new partnership, under the style of Blake & Sweeting. The property of the old firm then on hand was credited to the old firm on its firm books, and the same was taken by the new firm and was used in conducting its business, which continued till the following winter, when it went out of business, the partners separated,' and no longer did business together-as a firm. Neither Blake, Huston & Co. nor Blake & Sweeting ever had a formal settlement of their affairs. The firm property was almost exclusively controlled by Blake until taken in execution, sold, or otherwise disposed of.
    The circuit court found and decreed that the firm of Blake, Huston & Co. was formed in June, 1868, and continued in business till April, 1871, when it was dissolved; that in June, 1871, Blake and Sweeting entered into "partnership, which partnership continued until January, 1872, when it, also, was dissolved, and that the business of neither firm had been fully settled, and that the Statute of Limitations relied on by the defendant Sweeting in his answers, had run against the complainant Blake before the filing of his original and amended bills, and dismissed the bill as against Sweeting,—and this decree the Appellate Court for the Second District affirmed.
    Mr. Thomas F. Tipton, for the plaintiff in error:
    The Statute of Limitations applies to actions of account, either at law or in equity. Todd v. Rafferty, 30 N. J. Eq. 257; Cowan v. Perine, 3 C. E. Green, 457.
    When the accounts have been closed for six years, and there has been acquiescence for that period, unexplained by circumstances, and not controverted by an acknowledgment, the statute constitutes an insuperable bar. Barber v. Barber, 18 Ves. 286; Tatam v. Williams, 3 Hare, 357; Story on Partnership, sec. 233, note 4; Cole on Partnership, sec. 374.
    But the statute has no application to a case where there have been dealings within six years, where assets have been converted into money, or assets have been applied in' discharge of partnership liabilities, within that period, and no settlement has ever been made. And in such a case, the statute does not begin to run against each item from the time it becomes a part of the account, but if a part of the account be within six years, that part of it draws after it the items before six years, so as to protect them from the statute. Stout v. Seabrooks, 3 Stew. 184; Coster v. Murray, 5 Johns. Ch. 530; Miller v. Miller, L. R. (8 Eq.) 499.
    Mr. Owen T. Beeves, for the defendants in error:
    The Statute of Limitations commences to run against a bill for the settlement of partnership accounts from the time of the dissolution of the partnership. Pierce v. McClellan, 93 Ill. 245; Shelmire's Appeal, 70 Pa. St. 288; McKelvey’s Appeal, 72 id. 408; Knox v. Gye, 4 H. L. 44; Martin v. Heathcote, 2 Edw. 169; Barber v. Barber, 18 Ves. 286 ; Foster v. Hodgson, 19 id. 180; Patterson v. Brown, 6 Mon. 11; Codmars v. Rodgers, 10 Pick. 112.
   Mr. Justice Shops

delivered the opinion of the Court:

The co-partnership of Blake, Huston & Co. was in fact and in law dissolved by the withdrawal of Huston, in April, 1871, and his abandonment of its business. It was not a co-partnership for a definite term, and might, therefore, be dissolved by any member of the firm, at his pleasure, upon notice to his co-partnérs. 3 Kent’s Com. *54; Parsons on Partnership, (3d ed.) 435, 439.

The act of Huston in going away and abandoning the business and property of the firm, would, of itself, have been sufficient notice of his desire to then terminate the co-partnership relation; but followed, as this act was, by his letter to Blake refusing to come and join in a settlement of the partnership business, and saying his co-partners might settle the firm business as they pleased, removed all doubt as to . his determination to dissolve the firm. And when to this is added the acquiescence of his former partners, as shown by their action in crediting the brick and property on hand upon the firm books, to the firm, the creation of a new partnership, and the transfer to and appropriation of the old firm assets by the new firm, the dissolution of the firm of Blake, Huston & Co. must not only be regarded as complete, but as having been made by consent of all the partners. Bank of Montreal v. Page, 98 Ill. 109; Parsons on Partnership, (3d ed.) 417; Spurck v. Leonard, 9 Bradw. 174;

So, too, the co-partnership of Blake & Sweeting was dissolved in the winter of 1872, when the business of the firm ■came to an end by the mutual act of the co-partners. Blake and Sweeting were members of both firms. Upon the dissolution of either or both firms, a right of action accrued to either partner to have account of the co-partnership affairs, and the ■statute then began to run. A bill for account by one partner against another is barred after the lapse of five years following the dissolution, and the defendant may set up and rely upon the Statute of Limitations, in his answer. Pierce v. McClellan, 93 Ill. 245. See, also, McKelvey’s Appeal, 72 Pa. St. 409; Patterson v. Brown, 6 Mon. (Ky.) 11; Knox v. Gye, 4 Eng. Rep. (Moak’s notes) 44.

The firm of Blake, Huston & Co. having been dissolved more than five years before the original bill was exhibited, ■and the firm of Blake & Sweeting having been dissolved more than five years before the filing of the amended bill asking account as to the business of that firm, the bar of the statute had become complete, and the right of action of the plaintiff in error no longer existed.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    Town of Palatine v. Fred Kreuger.

      Filed at Ottawa May 12, 1887.

    1. Highways—streets—when an ordinary highway becomes a street. "Where a town has become incorporated, any highway or public road before that time laid, out by the commissioners of highways, within its limits, will become a street of such town, and it will be treated the' same as any street laid out by the municipal authorities.
    2. Same—municipal control over streets—relative rights of adjacent owners and the public. Under a grant of power to the president and trustees of an incorporated town to cause the streets and alleys to be kept in repair, to open, alter, vacate, extend, establish, grade, pave or otherwise improve any streets, etc., within the town, and to make all ordinances necessary and proper for carrying into effect and executing such powers, with others, they will have the power to prohibit, by ordinance, any person, even the owner of the fee, from removing any dirt or earth from any of the streets within the town, for any personal or individual use whatever, without first obtaining consent of the board so to do.
    3. In the case of streets, where the fee may7 remain in the adjacent land, owner, the public authorities may7 change the grade, and make culverts, drains and sewers therein, and they may lay, or cause to be laid, gas and water-pipes under the streets, or erect lamp-posts thereon, or make various other improvements; and the owner of the fee has no right to do any7 act that may interfere with the rights of the public to the use of the streets for all purposes-for which they may be needed for the public.
    4. Same—of highways outside of incorporated cities—relative rights of the public and the owner of the fee. Where a highway is located over land outside of an incorporated town, the public acquire only an easement of passage, with the rights incident- thereto, while the owner of the land over which it is laid retains the fee and the ownership of everything connected with the-soil, for all purposes not incompatible with the public right of way. The public will also take, as incident to the easement, the right to tile beneath the soil, and the right to use the soil or other material on the line of the road for construction and repairs.
    Appeal from the Appellate Court for the First District;—heard in that court on appeal from the Criminal Court of Cook county; the Hon. Lorin C. Collins, Judge, presiding.

      Messrs. Williamson & Cutting, for the appellant.
    Mr. E. A. Sherburne, for the appellee.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action of debt, to recover a penalty for a violation of an ordinance of the town of Palatine, in Cook county. In the Criminal Court the cause was tried on an agreed statement of facts, which, so far as is material to a decision of the case, is as follows :

First—The plaintiff was incorporated by a special act of the legislature of Illinois, approved March 25, A. D. 1869.

Second—That the board of trustees of said town did, on June 1, A. D. 1874, ordain that it should not be lawful for any person to remove any dirt or earth from off any of the streets within the limits of said town, for any personal or individual purpose whatever, without first obtaining the consent of the said board, and that any person violating said ordinance should, upon conviction, forfeit and pay a fine of one dollar for every load of earth so removed, which ordinance is still in force in said town.

Third—That the defendant, by order of John Kitson, did, on or about the 15th day of October, A. D. 1885, take and carry away from within the boundaries of said Smith street, and west of the center thereof, eleven loads of gravel, worth fifty cents a load.

Fourth—That at the time defendant took said gravel, said John Kitson owned the land from which the gravel was taken, subject to all the rights of said town in and to said Smith street, and that said Kitson became such owner long after said town was incorporated.

Fifth—That said Smith street was originally a public highway, laid out by the road commissioners of Palatine over twenty years ago, and was, at the time defendant took said gravel, all within the boundaries fixed by special act of incorporation of the town of Palatine, passed by the legislature of Illinois, and approved March 25, 1869.

Under section 5 of the act of incorporation, the president and trustees of the town are clothed with power “to cause all the streets, alleys and public roads within the limits of said town to be kept in good repair; to open, alter, vacate, extend, establish, grade, pave or otherwise improve any streets, avenues, lanes, alleys or public roads within the limits of said towm; to make all ordinances which shall be necessary and proper for carrying into execution the provisions specified in this act, or which they may deem expedient for the better regulation of the internal police, and to execute the same, ” etc. See act of incorporation, 4 Private Laws of 1869, p. 50.

Under the provisions of the charter the trustees of the town had the undoubted power to pass the ordinance under which the suit was instituted, and it is conceded, in the argument, that if the acts complained of had been done by a stranger,— one having no interest in the fee of the street,—the action might lie. But it is insisted, that as the gravel was removed by the direction of the owner of the fee of the street, the act was lawful. Smith street, as appears from the stipulation, was originally a public highway laid out by the road commissioners of the town of Palatine, but when the town was incorporated the highway became a street of the incorporated town, and it is to be treated in the same Avay as a street laid out by the authorities of the incorporated town, and the rights and obligations of the defendant, and the rights of the public in reference to the street, are the same as if it had been so laid out by the toAvn after it became incorporated. Where a highway is located over lands outside of an incorporated town, the public acquires only an easement of passage, Avith the rights incident thereto, while the owner of the land oArer which the road is laid retains the fee and the ownership of everything connected with the soil, for all purposes not incompatible with the public right of way. Town of Olcl Town v. Dooley, 81 Ill. 255; Dillon on Mun. Corp. sec. 544.

In the location of highways in the country, the public require nothing more than an easement, with the rights incident, under which may be included the right to tile-drain beneath the soil, and the right to use the soil or other material on the line of the road for construction and repairs. But the uses to which streets may be put in incorporated towns, where the fee of the street may remain in the owner of the adjoining land, are far more numerous. It may be necessary to change the grade; culverts, drains and sewers may be required; gas-pipes and water-pipes may be needed, and the authorities of the incorporated town or city may lay them, or authorize them to be laid, under the streets; lamp-posts may be erected on the streets, and various other improvements which the public wants may require; and while the owner of the land adjoining the street may own the fee in the street, he has no right to do any act which will interfere with the rights of the public to the use of the street for all purposes for which they may be needed by the public.

In The People v. Kerr, 27 N. Y. 188, in describing the rights of the land owner and the public, in reference to streets in a city, it is said: “It has always been supposed and stated,

that there must be a difference between the needs, and therefore the rights, of the public in a country road and a city street, and in the character of the servitudes imposed upon the land by the two uses, respectively. In White v. City of Cincinnati, 6 Pet. 432, the court say: ‘Dedications must be considered in reference to the use for which they are made; and in a town or city, streets require a more enlarged right over the ground, to carry into effect the purposes intended, than may be necessary for highways in the country.’”

New Haven v. Sargent, 38 Conn. 50, is a case directly in point. The question arose on a petition for an injunction to restrain Sargent, who owned the fee in the street, from removing surplus earth which the city desired to use in grading an adjoining street. In deciding the case, the court said: “It is apparent that the real question in this case is, whether * * * the city has a legal and exclusive right, as against the respondent, (owner of the fee,) to carry the soil from in front of his land and deposit it in a depression in Derby avenue,” (an adjoining street.) The court conclude: “We think, therefore, that the power and right of the city to remove the soil in question to Martin street or Derby avenue, where it is reasonably required, are undoubted; that the right is paramount to the right of the respondent; that presumptively he was paid for the soil which has been or is to be taken, and has no just cause for complaint, and that in attempting to remove the soil on to his own premises, and deprive the city of it, after being apprised of their immediate necessities and intentions, and to the injury of the city, he was a wrongdoer, and should be restrained by injunction.” See, also, Melhon v. Sharp, 15 Barb. 210, West v. Bancroft, 32 Vt. 367, Dillon on Mun. Gorp. 544, and Angell on Highways, 312, where the same doctrine is announced.

We have been referred, by appellee, to Smith v. Rome, 19 Ga. 89, as an authority sustaining his view7. The case seems to be in point, but we do not regard it in harmony with the current of authority on the subject, and we are not inclined to follow it. This case is referred to in Dillon on Municipal Corporations, page 526, in the note, and the author thinks the case erroneously decided, and cites Hoag v. Mayo, 43 Me. 322,—a later case, where a contrary doctrine is announced.

Other authorities have been cited by appellee,, but in the main they have reference to highways laid out in the country, and it will serve no useful purpose to examine the cases in detail. We are free to concede that older authorities are more favorable to appellee’s position than the recent decisions. This is well expressed by Angelí on Highways, (sec. 312,) in the following language: “The more ancient decisions limited the rights of the public to that of passage and re-passage, and treated any interference of the soil, other than was necessary to the enjoyment of this right, as a trespass. But the modern decisions have very much extended the public fight, and, particularly in the streets of populous cities, have reduced the interest of the owner of the soil to a mere naked fee, of only a nominal value. ”

The incorporated authorities, under their charter, were required to keep the streets in a reasonably safe condition to accommodate the demands of the public. This duty could not be discharged if property owners adjoining on the streets have the right, at their will and pleasure, to go upon the streets and remove gravel and earth. The ordinance was passed for the purpose of. protecting the streets. It is reasonable in terms, and one which may, with propriety, be enforced in any incorporated town or city.

The judgment of the Appellate Court will be reversed, and the judgment of the Criminal Court will be affirmed.

Judgment affirmed.