author: Mr. Justice Craig

text:
    George S. Bowen, Admr. v. Anna Shay et al.

      Filed at Ottawa November 20, 1882.

      1. Administrator—duly to take security for goods sold on credit at private sale. The statute which requires an administrator to take security for property sold on credit, applies as -well to private as public sales; and if he fails to take security, and a loss follows from the insolvency, of the purchaser, the loss must fall upon the administrator, and not upon the estate.

      2. The statute does not confer power on the probate court to direct, in the order for selling personal property of an intestate at private sale, that it may be sold on credit, without security. The power conferred on the court is merely to order or direct a private sale in the place of a public one, for cause shown, leaving the law in all other respects in full force.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Thomas A. Moban, Judge, presiding.
    Mr. M. R. M. Wallace, and Mr. Charles L. Easton, for the appellant:
    Prior to the amendment of section 90 of the act relating to the administration of estates, which was approved February 9, 1874, an administrator had no authority to sell personal property otherwise than by .a public sale, in which case his authority is derived from the statute, which requires him to take security for sales on credit; but by the amendment of 1874 the court was invested with jurisdiction and authority to direct a private sale, placing such sales wholly under the control of the court, and it nowhere requires the court to direct the taking of security on such a’ sale.
    If, then, the sale was made as prayed for in the petition, and in accordance with the very terms of the petition, as must be presumed, the failure to take security, if the law required the same, was occasioned by the error of the court, and was not the fault of the administrator.
    Mr. C. C. Kohlsaat, and Mr. Gr. L. Barber, for the appellees:
    When the duties of an administrator are clearly defined by statute, he has no discretion. He is liable if he deviates from the line of procedure laid down for him. Burnap v. Dennis, 3 Scam. 482; Orcutt v. Orms, 3 Paige, 459; Weston v. Howard, 2 S. & M. 527; Williams on Executors, 1819.
    The statute regarding private sales is an extraordinary provision in derogation of the common law, and should be strictly construed. Hall v. Irwin et al. 2 Gilm. 184; Moore v. Hamilton, 2 id. 429.
    Where the two clauses of a statute are parts of the same section, inseparably connected with and necessarily dependent on each other, they should be construed one part by another. McKay v. Plank Road, 2 Mich. 139; Submission by Governor, 22 Pick. 571.
    It is always presumed that the legislature intended the most reasonable and beneficial construction of their acts. Richards v. Doggett, 4 Mass. 34; Somerset v. Dighton, 12 id. 383.
    Applying these rules of construction, it is plain that the clause in question is meant to dispense with the public auction and the notice thereof, and nothing else. The general provisions of the section are abrogated only so far as necessarily follows the exception or proviso. Moreover, an authority to sell, given by a principal to an agent, does not carry with it authority to sell on credit. Van Allen v. Vanderpool, 6 Johns. 69; Delafield v. Illinois, 26 Wend. 223; 1 Parsons on Contracts, (5th ed.) 58.
   Mr. Justice Craig

delivered the opinion of the Court:

George S. Bowen, administrator (with the will annexed) of the estate of Jefferson B. Shay, deceased, presented his account to the probate court of Cook county for final settlement. Upon a hearing in the probate court all the items embraced in the account were approved and allowed, except one of $7019.58, which the court disallowed. From this order the administrator appealed to the circuit court, where the judgment of the probate court was affirmed. An appeal was then prosecuted to the Appellate Court, but the result was the same/and the administrator has appealed to this court.

In order to obtain a correct understanding of the decision of the probate court in disallowing appellant’s claim, a brief reference to the facts seems necessary. During the progress of the administration, and before the sale' of the personal property, the administrator became satisfied that certain property, consisting of a stock of goods, good will, etc., would sell much better, at private sale. The administrator applied to the probate court, and obtained the following order:

“In the matter of the estate of Jefferson B. Shay, deceased:
“On petition of George S. Bowen, administrator (with the will annexed) of the estate of Jefferson B. Shay, deceased, it appearing to the court that it is necessary that the personal property of said decedent, to-wit: a retail stock of dry and fancy goods, store fixtures, and two truck horses and harness, described in the bill of appraisement on file in this court, be sold to pay the debts of said estate; it is therefore ordered by the court, that said administrator have leave, and he is hereby authorized, to sell the said personal property, goods, chattels and effects of said decedent at private sale, for the purpose aforesaid.”

Under this order the administrator sold at private sale the property therein named to W. A. Shay, son of the deceased, and F. F. French, who were doing business under the name of Shay, French & Co., for the sum of $28,903.78. There was paid in cash $8258.20, and the balance was upon a credit, for which the notes of the purchasers were taken, without security. Afterwards all of the purchase money for the goods which was represented by the notes was paid, except the sum of $7019.58, and this became uncollectible on account of the insolvency of the purchasers, Shay, French & Co. Under these facts the question is whether the administrator should bear this loss, or whether it shall fall upon the estate.

Section 90, chap. 3, Rev. Stat. 1874, page 120, which has an important bearing on the question, declares: “When it is necessary for the proper administration of the estate, the executor or administrator shall, as soon as convenient after ■making the inventory and appraisement, sell at public sale all the personal property, goods and chattels of the decedent, when ordered to do so by the county court, (not reserved to the widow or included in specific legacies and bequests, when the sale of such legacies and bequests is not necessary to pay debts,) upon giving three weeks’ notice of the time and place of such sale, by at least four advertisements, set up in the most public places in the county where the sale is to be made, or by inserting an advertisement in some newspaper published in the county where the sale is to be made, at least four weeks, successively, previous thereto. The sale may be upon a credit of not less than six nor more than twelve months’ time, by taking note with good security of the purchasers at such sale. The sale may be for all cash, or part cash and part on time: Provided, that any part or all of such personal property may, where so directed by the court, be sold at private sale. ”

It will be observed that the portion of the section of the statute which authorizes a public sale of the personal property of a decedent upon a credit, in express terms requires the administrator to take security for the property so sold. If, therefore, an administrator, in defiance of this provision of the statute, should proceed to sell the personal property belonging to the estate upon a credit, and take no security from the purchaser, it is obvious that he would be liable for any loss which might accrue to the estate on account of a neglect on his part to follow the plain provision of the statute.

But it is argued, that notwithstanding public sales are governed by the special provisions of the statute, yet private sales are on a different footing; that they were intended by the statute to be placed under the control and direction of the court; that in respect to such sales the administrator derives all his authority from the order which the court might see fit to make in each particular case. We do not think the statute will bear the construction contended for. The statute requires an administrator to sell the personal property belonging to the estate at public sale in all cases, unless otherwise ordered by the court,—in other words, the statute confers power on the probate court, for good cause shown, to order a portion or all of the personal property sold at private sale. But the statute does not confer power on the probate court to direct in the order that the property may be sold on credit, without security. The power conferred on the probate court is merely to order or decree a private sale in the place of a public sale,—in all other respects the law regulating a public sale of property by an administrator remains in full force and effect, applicable to all sales, private as well as public. No reason whatever exists why an administrator should be required to take security for property sold at a public sale, and sell at private sale without security. The probate court has no more supervision over a private sale than it has over a public sale, and hence the same responsibility rests on the administrator to get good security in the one case as it does in the other. The words, "provided, that any part or all of such personal property may, where so .directed by the court, be sold at private sale, ” were added to the section as an amendment, by the legislature, in 1874, and as the amendment contains no expression which would lead to the conclusion that a private sale upon credit was authorized without security, we think it plain that the legislature intended that these sales, when ordered, should be made with security, precisely as public sales are made. The same reason that requires security in the one case demands it in the other. The order of the probate court prescribed no conditions whatever in regard to the sale, nor did it impose any restrictions. The order merely authorized a private sale, leaving the administrator to be governed by the statute in making the sale. Had the administrator followed the statute, and in making the sale required ■ good security, he could have been chargeable with no loss; but as he has neglected a plain requirement of the statute, and the estate has sustained a serious loss through his negligence, it is but right that the loss should fall upon the one who has been to blame.

The judgment will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Mulkey

license: Public Domain

text:
    Edward Prince v. The City of Quincy.

      Filed at Springfield Sept. 28, 1882

      Rehearing denied January Term, 1883.

      1. Constitutional construction. Where the language of a constitution or statute is clear and unambiguous, the courts can hot add a provision thereto in the nature of an exception, unless where to give effect to the language used, according to its literal terms, would lead to a gross absurdity or manifest wrong or inconsistency, which the courts will not attribute to a legislative body.
    2. Municipal indebtedness—constitutional limitation. By section 12, article 9, of the constitution of 1870, a city or other municipal corporation is absolutely prohibited from becoming indebted, in any manner or for any purpose, to an amount, including existing indebtedness, in the aggregate exceeding five per centum on the value of the taxable property therein, etc. Under this provision, when such municipality shall have reached the limit prescribed by the constitution, it is prohibited from making any contract whereby an indebtedness is created, even for the necessary current expenses in the administration of the affairs and government of the corporation.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Adams county; the Hon. John H. Williams, Judge, presiding.
    Messrs. Marsh & McFadon, for the appellant:
    If the replication was bad, so was the plea, and the demurrer should have been carried back to the plea. Peoria and Oquawka R. R. Co. v. Neill, 16 Ill. 271; Mt. Carbon Coal and R. R. Co. v. Andrews, 53 id. 185.

      As the constitutional prohibition against incurring indebtedness has no application to torts, it is apparent a city may become indebted notwithstanding such prohibition. City of Bloomington v. Perdue, 99 Ill. 329; Bartle v. Des Moines, 38 Iowa, 414.
    The city having availed itself of the benefit of the contract, is estopped to avoid liability by the defence claimed. City of East St. Louis v. East St. Louis Gas Co. 98 Ill. 430.
    The term “indebtedness, ” does not apply to contracts relating to the ordinary current expenses of a city, payable out of the current revenues. Dively v. City of Cedar Falls, 27 Iowa, 233; Grant v. City of Davenport, 36 id. 396; State v. McCauley, 15 Cal. 430; Hoppikus v. State Comrs. 16 id. 249; People v. Pacheo, 27 id. 207.
    The city brought about an insufficiency of income by payments to bond creditors, which it has no right to do until its current expenses are paid. Grant v. Davenport, supra; Coy v. Lyons, 17 Iowa, 1; Coffin v. Davenport, 26 id. 315.
    The inquiry as to the sufficiency of the city revenue should be at the time the contract was made.
    Messrs. Sibley, Carter & Govert, for the appellee:
    Any liability to pay money, growing out of a contract express or implied, is a debt, within the meaning of the constitutional provision. When a law is plain and unambiguous, there is no room left for judicial construction. Cooley on Const. Lim. 55, 56; Nouges v. Douglass et al. 7 Cal. 65; City of Beardstown v. City of Virginia, 76 Ill. 34; City of Springfield v. Edwards, 84 id. 632.
    The constitutional provision has been construed to prohibit the creation of indebtedness for any purpose, when the limit has been reached. City of Springfield v. Edwards, 84 Ill. 632; Law et al. v. People, 87 id. 385. See, also, Winspear v. District Tp. of Holman, 37 Iowa, 542; State National Bank v. Ind. District of Marshall, 39 id. 490; French et al. v. City

      of Burlington, 42 id. 614; McPherson v. Foster Bros. 43 id. 48; Buchanan v. City of Litchfield, 102 U. S. 278; Mosher v. Ind. District of Ackley, 44 Iowa, 122; Burlington Water Co. v. Woodward, 49 id. 58; Council Bluffs v. Stewart, 51 id. 385.
    That the prohibition extends to debts incurred for current expenses, see authorities cited in preceding paragraph, and Fuller v. City of Chicago, 89 Ill. 282; Howell et al. v. City of Peoria, 90 id. 104; Fuller v. Heath et al. 89 id. 296.
    If the indebtedness is prohibited, the city is not estopped from pleading that in defence. Loan Association v. Topeka, 20 Wall. 655; McPherson v. Foster Bros. 43 Iowa, 48.
    Mr. Carl E. Epler, City Attorney, also for the appellee,
    relied upon the following authorities, in addition to those already cited: 2 Parsons on Contracts, secs. 500, 501; The People v. Johnson, 6 Cal. 499; City of East St. Louis v. East St. Louis Gas Co. 98 Ill. 430; Grant v. City of Davenport, 36 Iowa, 401; Dively v. Cedar Falls, 27 id. 233; Council Bluffs v. Stewart, 51 Id. 396; Dillon on Municipal Corp. sec. 457; Marsh v. Fulton Co. 10 Wall. 676; Aspinwall v. County of Daviess, 22 How. 365; Harshman v. Bates Co. 92 U. S. 569; Town of Prairie v. Lloyd, 97 Ill. 191; Lippincott v. Town of Pana, 92 id. 24; Barnes v. Lacon, 84 id. 461; Buchanan v. Litchfield, 102 U. S. 278.
   Mr. Justice Mulkey

delivered the opinion of the Court:

On the 7th of August, 1873, the city of Quincy, by ordinance, entered into a contract with Edward Prince, by which the latter agreed to construct, maintain and keep in operation within the corporate limits of the city, a general system of water works, to be extended and enlarged from time to time, as the growth of the city and wants of its inhabitants should require. For the use of the water by the city for the extinguishment of fires, and other purposes,, the city agreed to pay Prince $2600 per annum, in monthly installments, and also, in like manner, $200 per annum for each fire hydrant for the first hundred, $150 for the next additional fifty, and $100 for all in excess of one hundred and fifty. The rights of Prince under the ordinance were made exclusive, and the contract was to run for a period of thirty years, and at its expiration, if not renewed, the city was to purchase the works at their cash value. The city reserved the right to purchase the works at any time, though upon terms decidedly onerous to the city.

The works were constructed as contemplated by the ordinance, and the terms of the agreement were mutually observed by the respective parties for a number of years, when the city, assuming the agreement had been entered into on its part without legal authority, declined to further conform to its requirements, and so notified Prince. The latter not acquiescing in this view of the matter, brought the present action against the city to recover ■ damages alleged to have been sustained by the plaintiff by reason of the failure and refusal of the defendant to perform said agreement. The cause was tried upon an issue of law, at the October term, 1880, of the Adams circuit court, resulting in a judgment for the defendant, which was affirmed on appeal to the Appellate Court for the Third District.

The errors assigned upon the record question the ruling of the circuit court in sustaining a demurrer to the plaintiff’s replication to the defendant’s amended additional plea, and the decision of the case here depends entirely upon the correctness of that ruling. The form of the action was assumpsit, the plaintiff counting specially upon the agreement above mentioned.

The additional amended plea, which was plead in bar of the count, alleged, in substance, that the city of Quincy, at the time of making the agreement sued on, was, and from thence to the time of the commencement of the suit had continued to be, otherwise indebted, in an amount exceeding the constitutional limit of five per cent on all the taxable property in the city. To this plea the plaintiff replied, that the said several sums of money sought to be recovered “pertained to the ordinary expenses of the defendant in the administration of the affairs and government of the city, and that at the time of the making of said contract the said several sums of money so provided to be paid monthly by said defendant to said plaintiff, together with other ordinary expenses of the government of the said defendant, were within the limits of the current revenues of said defendant. ”

If the plea presented a defence to the action, we are quite clear the replication afforded no sufficient answer to the plea, and upon that hypothesis the court properly sustained the demurrer to the replication. Whether the plea in question presented a defence to the action, depends upon the construction which must be given to section 12 of article 9 of the constitution, already alluded to. That section, or so much thereof as relates to the question in hand, declares that “no county, city, township, school district, or other municipal corporation, shall be allowed to become indebted, in any manner or for any pmpose, to an amount, including existing indebtedness, in the aggregate exceeding five per centum on the value of the taxable property therein, to be ascertained by the last assessment for State and county taxes previous to the incurring of such indebtedness. ” Now, if it be true, as is claimed, that this provision of the constitution has no application to liabilities arising under contracts like that set forth in the declaration, it is very evident the plea presented no defence to the action, and the demurrer should have been carried back and sustained to the plea.

While the provision of the constitution just cited declares, in emphatic terms, that a city or other municipality whose existing indebtedness already exceeds the constitutional limit, as was the case.here, shall not become further indebted “in any manner or for any purpose,” it is' seriously' contended by counsel for appellant that a municipality thus circumstanced may become indebted for supplies to meet its ordinary wants and necessities. To so construe the constitution would be to add a provision, in the nature of an exception, to the constitution, which the framers of that instrument did not see proper to insert. This, as is well settled by an unbroken current of authority, is not permissible where the language of the law is clear and unambiguous, as is the case here, except where to give effect to the language used, according to its literal terms, would lead to a gross absurdity or manifest wrong or inconsistency, which courts will not imputé to a legislative body. That no such consequences will flow from giving effect to this provision of the constitution according to the obvious meaning of the language in which it is conceived, will hardly be claimed by any one. The object and purpose of the framers of the constitution in adopting this provision have, on more than one occasion, received the deliberate and mature consideration of this court, and we do not feel called upon to repeat what we have already said on the subject, but will content ourselves with a reference to the cases containing the previously expressed views of this court in relation to it: City of Springfield v. Edwards, 84 Ill. 626; Law et al. v. The People, 87 id. 385.

It is claimed the construction given in the above cases to the provision of the constitution under consideration is modified by the case of East St. Louis v. East St. Lous Gas Light and Coke Co. 98 Ill. 430. But such is not the case. That was a suit for gas, and in ansAver to the claim that the city had already, under this provision of the constitution, exhausted its power to contract a further indebtedness, it is distinctly stated in the opinion in that case that it did not affirmatively appear that at the time the gas was furnished the city was indebted beyond the constitutional limit, and hence a recovery was permitted. Such is not the case here, as we have already seen.

The judgment "will be affirmed.

Judgment affirmed.


author: Mr. Chief Justice Scott

text:
    William Bryan v. The City of East St. Louis.

      Filed at Mt. Vernon November 16, 1882.

      Appeaii—whether it lies to this court. On a bill by the owner of a lot alleging such ownership and actual possession, and that no proceedings were ever instituted to dispossess him of his title, and that the city in which the lots are, had thrown down his fence, and by force and violence interrupted his possession, and praying for an injunction to prevent any further disturbance of his possession, no appeal lies in favor of the complainant directly to this court from a decree dismissing his bill, no freehold being involved. The appeal in such a case should be, in the first instance, to the Appellate Court.
    Appeal from the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.
    Messrs. G. & G. A. Kœrner, for the appellee,
    in support of the motion to dismiss the appeal, made the following points :
    No freehold was involved. The only thing sought is the prohibition of an alleged trespass. There is; at most, only a possessory right at issue. There is no prayer to remove any adverse claim to the land as a cloud upon the title of the complainant. The appeal should therefore be dismissed. Grand Tower Mining Co. v. Hall, 94 Ill. 152; Gage v. Busse, 94 id. 590; Carbine v. Fox, 98 id. 146; Richards v. People, 100 id. 424.
    Mr. F. A. Conaughy, and Messrs. Wilderman & Hamill, for the appellant, contra:

    The record shows that this is in effect a suit to quiet the title of the complainant in possession of the land, against the claims of the defendant, claiming the same under the pretense that it is a street of the city. The land was once occupied as a plank road, and on the abandonment of that road the easement terminated, and complainant fenced the ground. The city now threatens to remove the fence, and appropriate the soil for a public highway. To prevent the defendant from carrying its threat into effect this suit was brought, to protect the appellant in the peaceable possession of his freehold against the groundless claim of the city, and the result of an abuse of its powers. In such ease an injunction lies. Story’s Eq. Jur. sec. 927.
    Complainant has a right to have his title quieted, and have the interruption or disturbance of his possession prevented by the interposition of the power of a court of equity. Dudley v. Frankfort, 12 B. Mon. 610.
    Appellant’s possession, and claim of title involved, is nothing if not a freehold, and the right claimed by the defendant is not less than a freehold.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

The bill in this case sets forth, that since 1871 William Bryan has been the owner in fee of lots 79 and 80, in block 36, of the platted town of Illinois City, and since that time occupied such premises as a homestead, and has had possession of such lots during all that time, except that part of lot 79 occupied by the plank road of the Collinsville Plank Boad Company, and that in the year 1879 the plank road company abandoned its road, and since then he has had both lots inclosed, and paid all taxes assessed against such property; that in March, 1881, the city of East St. Louis, by its officers, tore down complainant’s fences, and by force and violence prevented him from reerecting the same, under the pretense the land in question was and is a public street, and that it was never attempted by any one to divest complain- • ant of his title to the premises by any proceeding at law. The answer of defendant admits the forcible acts complained of, and attempts to justify by averring there had been a public highway over the premises, and which had been “used continuously for more than forty years. ” A replication was filed to the answer, and on the hearing of the case the circuit court dismissed the bill, and complainant brings the case directly to this court on appeal.

A motion has been made to dismiss the appeal on the ground this court has no jurisdiction in the first instance to hear the appeal, which motion must be allowed to prevail. It is obvious no question is involved that will give this court jurisdiction of the appeal. Admitting, as is alleged, that complainant is the owner of the premises, and was in the actual possession of the same, and that no one had ever instituted any proceeding at law to dispossess him of his title, the utmost that can be insisted upon is, that defendant has, by force and violence, interrupted his possession, and threatens to continue such trespasses. In the controversy, as stated by complainant in his bill, no freehold is involved, nor indeed any other question that would give this court jurisdiction to hear the appeal in the first instance. The appeal should have been taken to the Appellate Court of the proper district.

The appeal must be dismissed, which is done, with leave to appellant to withdraw record, abstracts and briefs, for the purpose of filing the same in the Appellate Court, if he shall wish to do so.

Appeal dismissed.


author: Mr. Justice Walker

text:
    Bernhard Gradle et al. v. John Hoffman.

      Filed at Ottawa November 20, 1882.

    1. Juror—competency. A person proposed as a juror stated, on his voir dire, he had read an account of the case in the newspapers, but remembered no part of what he read,—-that the account made no impression on his mind, and that he, at the time he was examined, had no impression, and it would not require evidence to remove any impression, but said if the evidence was evenly balanced it might be difficult to decide: Held, that he was impartial, and qualified.
    2. Official bonds—bond of deputy sheriff—of its form and validity. The statute authorizes a sheriff to take a bond from his deputy, but prescribes no form for the condition. That being so, mere technicalities should not render such bond void. Unless the condition is contrary to public policy or in contravention to the law, such a bond should be upheld and enforced.
    3. In this case the bond of a deputy sheriff given to his principal, after reciting: “Whereas, the above bounden (deputy) has, by the said (principal), sheriff, been duly appointed deputy sheriff, ” contained this condition: “Now, if the said (deputy) shall well and faithfully perform all the duties of the said office as deputy sheriff that are or may be required of him by law, then, ” etc.: Held, the condition was sufficiently explicit, and the bond was a valid one.
    4. On the objection that there was no such office as deputy sheriff, as described in the condition of the bond, it was held this did not matter, as the obligors undertook that the deputy should perform all the duties the law imposed upon him, whether the deputyship was an office or a mere place. Moreover, it was considered the word “office,” used in the condition, might as well be referred to the office of sheriff as to that of deputy. The bond was valid and binding, either as a statutory bond or as a common law obligation.
    5. Same—duty of the obligee towards the sureties—and as to representations by him to them. The mere fact that a sheriff or his principal deputy may have known that another deputy did not make return of executions in his hands promptly on the return days thereof, and still retained him in office, will afford no defence by the sureties of the deputy so in default in an action on'his bond to the sheriff to recover for moneys collected on executions, and embezzled by such deputy, when the sheriff had no knowledge of the deputy’s misappropriation of moneys collected by him, and nothing was brought to the sheriff’s notice to lead him to an inquiry into the conduct of the deputy.

      6. If, however, a sheriff has knowledge that his deputy, from whom he has taken a bond of indemnity, with sureties, is misappropriating moneys collected by him on executions, and is a defaulter, or is notified of that fact by credible persons, or made aware of it by facts and circumstances, it becomes his duty to require the deputy to settle, ahd remove him from office, and give notice to his sureties; and if he fails to discharge this duty, and keeps him in office, it will be a fraud on the rights of the sureties.
    7. A sheriff informed persons about to become sureties on the bond of a deputy that it was a rule of his office that all deputies collecting money under executions should report daily and settle for the money so received, and thereby insure the faithful conduct of the deputies, and prevent defalcation in paying over such money, and in case any of them failed to so report he should and would remove him from office. It was held, a failure of the sheriff to remove a deputy for a neglect to make such a report daily, where such representation did not appear to have been fraudulently made, but such was the rule of the office, except that no one had been removed under it, would not operate to release the sureties upon the bond of the deputy, to whom such statement was made. Such statement, if anything, was a contract, and it did not go to the execution or consideration of the bond, nor did it ojierate as a release as to the sureties, although broken and not performed.
    8. Pleading and evidence—proof of particvdars under general breach. _ A declaration on a bond given to a sheriff by his deputy showed the execution of the bond, with a condition that he should perform all the duties of the office of deputy sheriff required of him by law, and one breach assigned was, that he did not perform all the duties of the office required of him by law, but neglected and refused to account for and pay to plaintiff divers sums of money, in all $5000, which were received by him as such deputy sheriff, which it was his duty to pay to plaintiff: Iield, that under this general breach it was competent to prove various defaults on the part of the deputy in respect to the payment of moneys collected by him on execution, although the particular defaults were not specified in the declaration. The general rule is, that the plaintiff may assign the breach generally, by negativing the words of the covenant or condition.
    9. Pleading—plea waives grounds of demurrer. A party by pleading over after his demurrer is overruled, waives all grounds of demurrer. He can not both demur and plead to the same pleading at the same time.
    10. Same—plea not responsive to declaration, etc. To a declaration upon the bond of a deputy sheriff to recover moneys collected and not paid over, the defendants pleaded that there was no record of the recoveries or of the executions named in the declaration; and that no such executions ever existed and came to the hands of the deputy, and prayed that these facts might be tried by the court: Held, that- as the declaration contained no averment of the recovery of any judgments, or that the executions were of record, the plea was not responsive to the declaration, and the first part neither denying any fact alleged nor confessing or avoiding any averment, it was clearly bad on special demurrer; and so was the averment that such executions never existed, etc., this being a question of fact, not to be tried by the record.
    11. Judgment—when in excess of affidavit of merits. A judgment for a greater sum than the amount claimed in the plaintiff’s affidavit of merits is not erroneous, where the excess is made up by the allowance of interest from the time the affidavit was made until the recovery.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Mr. Allan C. Story, for the appellants:
    Plaintiff below utterly failed to make a ease. Hibbard v. McKinlay, 28 Ill. 240; Land v. Patterson, 3 Stew. 307; Ellison v. Stevenson, 6 T. B. Mon. 276; Parker v. Kent, 1 Ld. Raym. 658; Bouvier’s Law Dic. title “Deputy;” Rev. Stat. 1874, chap. 125, secs. 2, 7, 12, 13, 16, 23; Constitution of 1870, art. 10, sec. 9, art. 6, secs. 20, 22, and art. 5, sec. 14.
    The liabilities of sureties can not be extended, by implication, beyond their express undertaking. United States v. Cheeseman, 3 Sawyer, 425; Miller v. Stuart, 9 Wheat. 703; United States v. Boyd, 15 Pet. 207; Leggett v. Humphreys, 21 How. 76; Morton v. Thomas, 24 id. 317; Smith v. United States, 2 Wall. 235; Palmer v. Foley, 21 N. Y. 106.
    The court erred in rejecting the challenge of juror Wright. Davis v. Walker, 60 Ill. 472; Chicago and Alton R. R. Co. v. Adler, 35 id. 344; Winnesheik Ins. Co. v. Schueller, 60 id. 465; Plummer v. People, 74 id. 366.
    The bond in this ease is not authorized by any law. The only bond a sheriff takes of his deputy is one of indemnity. Rev. Stat. 1874, chap. 125, sec. 7.
    In all statutory bonds colore officii, if the condition is broader than is permitted or prescribed by the act, the bond is void. Sullivan v. Alexander, 19 Johns. 233; Thompson y. Lockwood, 15 id. 256; Kidwelly v. Brand, Plowd. 60; Bank

      of Buffalo v. Boughton, 21 Wend. 57; Love v. Palmer, 7 Johns. 159; Strong v. Thompkins, 8 id. 98; Commonwealth v. Bassford, 1 E. D. Smith, 233; Morange v. Edwards, id. 414; People v. Meighan, 1 Hill. 298; Millard v. Canfield, 5 Wend. 61; Motion v. Campbell, 37 Barb. 182.
    The court should have given judgment for appellants upon their fifth and seventh pleas. Rev. Stat. chap. 125, secs. 12, 13, 16, 17, 18; Dukes v. Rowley, 24 Ill. 210; Planing Mill Lumber Co. v. Chicago, 56 id. 304; Pickering v. Day, 3 Houst. 522; Wells v. Gant, 4 Yerg. 491; Cane v. Caldwell, 3 Johns. 384; Wood v. Jefferson Co. Bank, 9 Cow. 194; Rathbun v. Warren, 10 Johns. 587; People v. Janson, 7 id. 332; Peel v. Tatlock, 1 Bos. &. P. 419; Brandt on Suretyship, 494, 495; Charlotte, C. and Aug. R. R. Co. v. Gow, 59 Ga. 685; Smith v. Bank of Scotland, 1 Dowl. 272; Graves v. Lebanon Nat. Bank, 10 Bush, 23.
    The affidavit of plaintiff’s claim filed with the declaration is a pleading, and limits the amount he is entitled to recover. Rev. Stat. 1874, chap. 110, secs. 36, 37; Russell v. Hubbard, 59 Ill. 338; Healey v. Charnley, 79 id. 292; McKenzie v. Penfield, 87 id. 38; Haggard v. Smith, 71 id. 226; Kern v. Strasberger, id. 303.
    Where the judgment exceeds the acZ damnum, it will be reversed. Rives v. Kemler, 27 Ill. 291; Kelley v. Third Nat. Bank, 63 id. 541; Oaks v. Ward, 19 id. 46; Walcott v. Holcomb, 24 id. 331.
    Messrs. Robinson & Green, for the appellee:
    The appellants, by abandoning their demurrer and pleading to the whole declaration, admitted its sufficiency, and can not now assign the decision upon it as error. American Express Co. v. Pinckney, 29 Ill. 392; Harmon v. Thornton, 2 Scam. 351.
    The first breach in the declaration is well assigned, and under it all the executions offered in evidence were admissible. Hughes v. Smith, 5 Johns. 157.

      The bond in suit was voluntarily executed. As it neither contravenes any statute nor any rule of public policy, it is, in any aspect, a good common law obligation. Mix v. People, 86 Ill. 329; Todd v. Cowell, 14 id. 72.
    The special demurrers to appellants’ fourth, fifth and seventh amended pleas were properly sustained. Gage v. Lewis, 68 Ill. 604; Crane v. Newell, 2 Pick. 611; Andrews v. Beales, 9 Cow. 693; Brandt on Suretyship, sec. 351.
    There was no duty resting upon the plaintiff to make known to appellants the default of Seligman, when discovered. Roper v. Sangamon Lodge, 91 Ill. 518.
    The neglect of the obligee in a penal bond to discover the default of the principal obligor, when he might have done so, is no defence to the sureties. Trent Nav. Co. v. Harley, 10 East, 34.
    The appellants having been allowed upon the trial to offer evidence of the matters set up in their special pleas, the judgment will not be reversed, even if the demurrers to them were improperly sustained. Reichert v. Koerner, 54 Ill. 306; Jones v. Bank, 34 id. 313.
   Mr. Justice Walker

delivered the opinion of the Court:

This was an action of debt on a penal bond having this condition: “Whereas, the above bounden Benjamin H. Seligman has, by the said John Hoffman, sheriff, been duly appointed deputy sheriff of Cook county; now, if the said Benjamin IT. Seligman shall well and faithfully perform all the duties of the said office as deputy sheriff that are or may be required of him by law, then this obligation to be void, otherwise the same shall remain in full force and effect. ”

The declaration contained a general breach that Seligman did not perform all of the duties of the office of deputy sheriff required of him by law, but neglected and refused to account for and pay to plaintiff divers sums of money which were received by Seligman as deputy sheriff, and which it was his duty to account for and pay to plaintiff. There were also other special breaches that-various executions were delivered to Seligman, upon which he collected moneys which it was his duty to pay to plaintiff, but to do which he failed and refused. Defendants filed a general demurrer to the declaration, which was overruled. Defendants thereupon filed a number of pleas. A demurrer was sustained to the fourth, fifth and seventh pleas, and defendants abided by their pleas. Issues were joined on the other pleas, and a trial had, and the jury found a verdict for the penalty of the bond, and 12351.36 damages. A motion for a new trial was overruled, and judgment entered on the verdict, and defendants appealed to the Appellate Court, and now to this court.

It is urged that the court erred in rejecting a challenge to a juror on the ground that he had read an account of the case in the newspapers. The juror stated on his voir dire that he remembered no part of the account he thus saw and read,—that the account made no impression on his mind, nor had he then any impression, and it would not require evidence to remove the impression. He said if the evidence was evenly balanced it might be difficult to decide. We regard the juror as impartial, and qualified. Such a juror would no doubt regard an instruction of the court as to his duty in case the evidence was evenly balanced.

It is insisted that the bond suek upon is void, and no recovery can be had on it. The statute authorizes the sheriff to take from his deputy a bond, as security for his indemnity. The statute prescribes no form for the condition of such a bond, and in the absence of such a provision mere technicalities should not render it void. Unless the condition is contrary to public policy or in contravention of the law, such bonds should be upheld and enforced. The condition of this bond is neither, and we are unable, for any reason, to say it is inoperative. The conditions are sufficiently explicit and free from doubt, and were agreed to by appellants when they signed the bond.

But it is said that there is no such office as deputy sheriff, and Seligman is described as such an officer in the condition to the bond. A deputy sheriff performs the functions of the office of sheriff. He occupies the place and performs the duties of an officer, and it does not matter whether he in fact is an officer or only occupies the place and performs the duties. Such deputies are generally known and designated as officers. But if it were not so, defendants in their bond designate him an officer, or his place as an office, if the construction of appellants must be adopted. But the word “office,” used in the condition, may refer as well, or better, to the office of sheriff as to that of deputy. Appellants, by this bond and its condition, undertook that Seligman should perform all the duties the law imposed upon him, whether the deputyship is an office or a mere place. This is the manifest and unmistakable meaning of the condition, and as it is not prohibited by law it must be held sufficient, either as a statutory or a common law bond.

It is insisted that the general breach is insufficient to authorize different defaults in the collection of money by Seligman, and never paid to plaintiffs, to be proved under it. No reason is perceived why this is not a good breach. The condition to the bond undertakes that he shall perform all of the duties of deputy sheriff. It is conceded that it was his duty to pay to the sheriff moneys received as deputy sheriff, and the breach avers he did receive moneys as deputy sheriff, and did not pay them over. This is clearly the averment of a breach of the bond. We are aware of no rule that requires such a breach to be specific as to all of the minutiae and details of the breach. In the case of Hughes v. Miller, 5 Johns. 168, breaches as general as this were held good. Ch. J. Kent there says: “The breach is assigned in the words of the condition, and the assignment necessarily amounts to a breach, and when that is the case, the general rule is that the plaintiff may assign the breach generally, by negativing the words of the covenant. ” And the doctrine of that ease, it is believed, has prevailed uniformly since, if not before, its announcement. Under this breach plaintiff Was authorized to introduce evidence of Seligman’s default in failing to pay money collected by him, as such deputy, whether specified or not in the declaration.

It is also urged that all the breaches are bad because they only aver that Seligman failed to pay the money to the sheriff, when he had the same power to pay it to the plaintiffs in execution that the sheriff possessed, and this being true, the breaches should have averred that he had failed to pay the money either to the sheriff or plaintiffs in execution. Conceding this to be true, it rendered the declaration obnoxious to a demurrer. To have availed of the error, appellants should have abided by their demurrer when it was overruled, but they pleaded over, and thereby waived this ground of demurrer. A party can not, under well recognized rules, both demur and plead to the same pleading at the same time. The ground of demurrer was waived by pleading over. Defendants, however, might have pleaded and proved the payment of the money to plaintiffs in execution, as a defence. This they omitted to do, and therefore have no ground of complaint. Could they have proved such a defence they would no doubt have interposed such a plea.

It is claimed there were variances between the executions offered in evidence and those set out in the special breaches. We shall not stop to inquire whether there was such a variance, as they were properly admitted under the general breach.

The fourth plea avers that there is no record of recoveries or of the executions named in the declaration, and that no such executions ever existed and came to the hands of Seligman, and prays that these facts may be tried by the court. The plea is not responsive to the declaration, as there are no averments that any judgments were recovered, nor is there any averment therein that the executions were of record. This part of the plea traverses no averment in the declaration, nor does it confess and avoid any averment, and for that reason it was clearly bad on special demurrer. The other averment, that such writs never existed or were in the hands of Seligman, is the averment of a fact, and could not be tried by the record, hence the conclusion of the plea was certainly obnoxious to a special demurrer. The question of whether these writs ever were in the hands of Seligman, was one that plaintiff had a right to have tried by a jury. There was no error in sustaining the special demurrer to this plea.

Did the fifth amended plea present a defence to the action ? Did the mere fact that the sheriff or his principal deputy knew that Seligman did not make return of writs, in his hands on the return day, and the fact that Seligman was not removed, constitute a defence? There is no averment that either knew, or had other reason to believe, that Seligman was misappropriating moneys collected by him on executions in his hands. The mere fact that he was not prompt in returning such writs is not evidence that he was guilty of the crime of embezzlement. The plea fails to aver such knowledge or such gross negligence as to release appellants on their bond. Had the sheriff known Seligman was misappropriating the money, or had he been so notified by creditable persons, or had facts transpired that showed he was so misbehaving, then it would have been his duty to have required Seligman to settle, and removed him from office. But the plea avers no such facts. The plea avers no facts that charge any knowledge on the part of the sheriff that Seligman was a defaulter. Hence there was no fraud in failing to notify the sureties that Seligman had failed to return some executions on the return day.

As to the seventh plea, it avers that appellee, to induce appellants to sign the bond, informed them that it was a rule of the office that where money could be collected on process by deputies holding the same, they should report daily and settle for the money thus received, and thereby insure the faithful conduct of the deputies, and prevent defalcation in paying over such money, and in case any one of them failed to so report, appellee should and would remove such deputy, and advise the sureties thereof, but Seligman did fail to so report, and appellee failed to remove him, and that after such failure to report, the executions upon which the money was collected came to Seligman’s hands, and the money sued for was collected. It appears from the evidence that the rule of the office was as stated, except there was no proof that any deputy was ever removed, or that the rule was enforced with Seligman. There is no averment that the representation was fraudulently made, or that appellee did not, when made, intend to enforce the rule. The averment shows that the representations were made, and the presumption, till rebutted, is that it was fair and-honest. Again, this is not pleaded as a failure of consideration, or that the bond was obtained by fraud and circumvention. The plea avers neither. If anything, it was a contract, which appellee has broken and failed to perform. It does not go to the execution or consideration of the bond, nor does it operate as a release, and not being made for fraudulent purposes, it can not operate as a bar.

It is claimed the evidence does not warrant the amount found by the "jury. If that is a question w'e could consider, the testimony is ample to sustain the amount found. It is also claimed that the amount found is greater than the amount claimed in the affidavit of merits. This is no doubt true, but allowing interest from the time that affidavit was made, until the recovery, the sum found is not too large, and in this there was no error.

Appellants failing to show error in the record, the judgment of the Appellate Court is affirmed.

Judgment affirmed.


text:
    Robert E. Jenkins, Assignee, v. Jacob Rosenberg et al.

      Filed at Ottawa November 20, 1882.

    1. Purchaser from one holding deed, without notice it was a mortgage. Although a deed absolute on its face may be only a security for the payment of money, still a purchaser from the grantee in possession, without notice that his vendor’s deed was but a mortgage, will be protected in his purchase, and hold the property free from any equity of redemption.
    2. Notice—of fact that a deed was only a security. The deposition of the grantor in a deed, filed in a case in which a subsequent purchaser from the grantor was a party, in which deposition the grantor testified that the deed was made free and clear of all incumbrances, the grantee agreeing to allow him a lib eral price for the same on his indebtedness if the property was made clear, it not appearing from the deposition that the property should at any time, on any conditions, be reconveyed, if any notice at all, is not sufficient to charge such purchaser with notice that the witness’ deed was intended as a security, the deposition itself failing to show that such was the fact.
    3. A party proving a claim against the estate of a bankrupt is not chargeable with notice that a deed of the bankrupt was intended only as a mortgage, from the fact that the lots conveyed by such deed were embraced in his schedule of assets. The party so proving his claim was thereafter as much a stranger to the schedule as if he had never proved up his claim.
    4. Where a party had conveyed lots by a deed absolute in form, but in fact intended only as a security, and afterward became a bankrupt, the presence of his assignee and the assignee’s attorney at a meeting of creditors of the bankrupt, to take steps for the leasing of the lots pending litigation concerning them, such assignee not executing the agreement for leasing and making no declaration of any interest in the bankrupt, is not sufficient to put a subsequent purchaser from the bankrupt’s grantee upon inquiry, and charge him with notice of the nature of the bankrupt’s deed.
    5. Although a deed absolute in form may have been given as a mortgage, to secure an indebtedness of the grantor, yet when the grantor, in his answer to a bill in chancery, sets up that he had conveyed the absolute title, and he and his assignee in bankruptcy afterward stand by and permit the grantee, without a word of dissent, to claim, mortgage and contract for the improvement and leasing of the property for a term of years, as the absolute owner, any person not having actual notice to the contrary will have the right to suppose such grantee the absolute owner, ahd in dealing with him as such he ought to be protected in the purchase of the property.

      6. Same—notice to attorney when notice to principal. It is doubtless true that notice to, an attorney is notice to his client;'- but to make the notice such, the attorney' must, at the time he is served, be engaged as an attorney in reference to the matter embraced in the notice.
    7. Limitation—under the BanJcrupt law. Where a person claims property adversely to a bankrupt long before he is adjudged a bankrupt, under a deed from him absolute in form, a bill in equity by the assignee, filed more than two years after his appointment, seeking to have the deed set aside and reach the property therein conveyed, is barred by' the limitation provided in section 5057, Be vised Statutes of the United States. In such case an adverse possession is not necessary to defeat the suit. It is enough that the defendant claimed an adverse interest in the property.
    Appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    Mr. W. T. Burgess, for the appellant:
    Purchaser with notice that his grantor held under a deed which was but a mortgage: Jones on Mortgages, secs. 804, 808; Ellison v. Daniels, 11 N. H. 274; Parish v. Gilmanton, id. 298; Aymar v. Bell, 5 Johns. Ch. 574; Jackson v. Willard, 4 id. 41; Weeks v. Easton, 15 N. H. 148; Bell v. Moore, 6 id. 205; Smith v. Smith, 15 id. 56; Dearborn v. Taylor, 18 id. 157; Freebush v. Goodwin, 24 Me. 427; Delano v. Bennett, 90 Ill. 533; Merritt v. Bartholick, 36 N. Y. 45; Jackson v. Curtis, 19 Johns. 325; Wilson v. Troupe, 2 Cow. 231.
    Lcewenthal, the grantee of Kinney, had notice that the deed Kinney had from Walker was only a mortgage. A proceeding in bankruptcy is one suit, from its commencement to its end. Sandusky v. First National Bank, 12 B. R. 176; Ala. and C. R. R. Co. v. Jones, 7 id. 145; In re York & Hoover, 4 id. 479; Sandusky v. National Bank, 23 Wall. 289.
    Proof of debt makes the creditor proving it a party to the bankruptcy proceedings. Dingee v. Becker, 9 B. R. 508; Wilson v. Capara, 41 Cal. 454.
    The notice by letter served upon Rosenthal & Pence, attorneys of Lcewenthal, was notice to him and those claiming under him. Williams v. Tatnall, 29 Ill. 553; Harper v. Ely, 56 id. 194.
    Whatever is sufficient to put a prudent man on inquiry before purchasing, is notice to him of any outstanding rights and equities that such inquiry might have disclosed. Doyle v. Teas, 4 Scam. 202; Cox v. Milner, 23 Ill. 479; Henneberry v. Morse, 56 id. 396; Babcock v. Lisk, 57 id. 329; Richardson v. Stevens, 71 id. 646.
    So long as the relation of mortgagor and mortgagee existed between Walker and Kinney, the limitation could not commence to run in favor of either party. 2 Jones on Mortgages, sec. 1152.
    As against the owner of the equity of redemption, the statute does not begin to run until the mortgagee takes actual and open possession of the mortgaged premises; and it does not begin then if he holds under his mortgage title, and recognizesothe mortgagor’s right of redemption. 2 Jones on Mortgages, sec. 1156; Miner v. Beekman, 50 N. Y. 337; Hubbel v. Sibley, id. 468; Knowlton v. Walker, 13 Wis. 264; Waldo v. Rice, 14 id. 286; Robinson v. Fife, 3 Ohio St. 561; Demorest v. Wynkoop, 3 Johns. Ch. 129; Green v. Turner, 38 Iowa, 112; Wilson v. Richards, 1 Neb. 342; Yarbrough v. Newell, 10 Yerg. 376.
    Messrs. Rosenthal & Pence, for the appellees:
    The grant of an estate in fee necessarily confers the power of alienation on the grantee. 1 Preston on Estates, 479.
    A deed absolute in form, but originally intended as a security, may be converted into a conveyance absolute in fact by a change in mind of the parties to that effect, without any new deed, or by acquiescence or ratification. Carpenter v. Carpenter, 70 Ill. 457; Maxwell v. Patchen, 29 id 42; Ferguson v. Tallmadge, 20 id. 581; Pitman v. Sofley, 64 id. 156; Jenkins v. Pierce, 98 id. 650.

      Lcewenthal had purchased of Kinney for himself, Bauer, Schcellkopf, and the bank, without knowledge or notice of any kind of any interest of Jenkins, the assignee in bankruptcy of Walker. Actual notice must be clearly proved, and the proof should be of such character that to disregard it would be a fraud. Pitman v. Sofley, 64 Ill. 156.
    The deposition of Walker in the Bauer suit is not constructive notice to Lcewenthal, as there is no proof that he ever heard Walker’s evidence in that case, and because the matters in issue in the two suits are different.
    . The doctrine of lis 'pendens is only upon the ground of public policy, and has the effect of constructive notice only in the particular suit, and does not operate beyond it. Freeman on Judgments, secs. 191, 200.
    A party claiming under a decree is not chargeable constructively with notice of any paper, document or fact not a part of the issue in the case, although it may he on file.in the case. Freeman on Judgments, sec. 200; Dugan v. Follett, 100 Ill. 590.
    Walker’s deposition in the Bauer case, if admissible, can only be taken as hi's declaration,—as notice it adds nothing by being sworn to. The declaration of a grantor after conveyance can not be received to impeach his grant. Miner v. Phillips, 42 Ill. 130; Dunaway v. School District, 40 id. 249; Trimmington v. Kemmis, 9 Cl. & F. 779; 1 Phillips on Evidence, (C. H. & E.) *327, note 104.
    Walker’s schedule of property in bankruptcy is not notice to Lcewenthal. He does not claim title under the proceedings in bankruptcy. It is not in the line of his title, and, besides, no one is chargeable with constructive notice of any instrument made subsequent to the record of the instrument under which he claims.
    To bind a principal by notice to his attorney, he must be an attorney for the principal touching the subject matter of the treaty. Sugden on Vendors, chap. 24, secs. 2-7; 2 Leading Cases in Equity, pt. 1, pp. 134, 137, 138, 146, 66.
    This suit was not brought within two years after the cause of action accrued to the assignee, and is, therefore, barred by the United States statute. Rev. Stat. United States, sec. 5057; Bailey v. Glover, 21 Wall. 342.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a bill in equity, brought by Robert E. Jenkins, assignee in bankruptcy of Samuel J. Walker, in the circuit court of Cook county, on the 27th day of May, 1881, against Berthold Lcewenthal and others, to set aside and declare null and void two certain deeds conveying the title to lots 21 to 36 inclusive, and the south half of lot 37, all in block 10, S. J. Walker’s dock addition to Chicago. The first deed was executed November 16, 1880, by Eli Kinney and Martha S., his wife, to Louis Kuhn. The second was executed November 16, 1880, by Louis Kuhn to Berthold Lcewenthal. Each purports to convey the lots above described. The title to the property conveyed by Kinney and wife to Kuhn had been obtained from S. J. Walker by Kinney under two warranty deeds, one dated January 9, 1873, (recorded January 21, 1873,) conveying absolutely lots 21 to 34 inclusive, and one dated January 9, 1874, (recorded February 19, 1874,) conveying lots 35 to 36, and the south half of lot 37.

It is alleged in the bill that the two deeds from Walker to Kinney, although absolute in form, were in fact made as security for an indebtedness from Walker to Kinney of about the sum of $110,000. It is also alleged that Lcewenthal purchased with notice that the deeds were only intended as security. It is also alleged in the bill that the indebtedness due from Walker to Kinney was not transferred to Lcewenthal. The bill does not ask to pay off the indebtedness from Walker to Kinney, and redeem the premises from the mortgage, but prays that the title acquired by Lcewenthal be declared to be either a nullity, or to have been acquired and to be held in trust for complainant, as such assignee, and that Lcewenthal be required to convey to him, as assignee. The answer of defendants denied that the deeds from Walker to Kinney were not absolute in fact, and denied that defendants had notice that the deeds were made as security for money due from Walker to Kinney. The answer set up that Kinney, from the time Walker conveyed to him down to the time he deeded the property, claimed the deeds to him conveyed the absolute title,—that Kinney had been all the time in possession of the premises, claiming to own the same. The answer also alleged that Walker knew Kinney claimed to own the premises, and admitted him to be the owner; that Jenkins, from the time he was appointed assignee of Walker, on July 31, 1878, knew that Kinney claimed said premises adversely, and that both he and Walker acquiesced in such adverse claim, and pleaded the United States two years Statute of Limitations in bar of the relief claimed in the bill.

It appears from the record that on the 31st day of December, 1871, Samuel J. Walker, being the owner of the premises, executed and delivered a trust deed thereon to John G-. Rogers, to secure the payment of three notes, which he made at the same time, for $50,000 each. These three notes and deed of trust were pledged to the International Bank, to secure five notes given by Walker to the bank, amounting in the aggregate to $54,498. These notes were owned by the bank, Bauer, Schcellkopf and Lcewenthal. After the making and recording of the trust deed to Rogers, Walker conveyed the premises to Kinney by the two warranty deeds above named. On the 29th day of August, 1874, Bauer, who held one of the notes secured by the trust deed to Rogers, filed his bill in the circuit court of Cook county to foreclose the trust deed, making all parties in interest, including Walker and Kinney, parties thereto. In this bill it was alleged that' Walker, after the execution of the trust deed, had conveyed the premises to Kinney by two warranty deeds. In his answer to this part of the bill Walker says: “This defendant further answering, admits the execution by himself and wife of the deeds to said defendant Eli Kinney, referred to in said bill, and claims and insists that said conveyances were for good and valuable considerations, and that the title to the premises therein described passed thereto to said Kinney, and that the same ought, in justice and equity, to stand discharged of any and all liens thereon. ” Kinney was also a party defendant to the bill, ancl service had upon him by publication of notice. He did not appear, but was defaulted, and a decree of sale rendered April 25, 1878. On the 24th day of June, 1878, the lots were sold, and bid off by Rosenberg, who purchased for the bank, Lcewenthal and Schcellkopf. On the 27th day of September, 1879, no redemption having been made, the master deeded the property to the purchaser, under the decree. On the 26th day of April, 1878, Walker filed his petition in bankruptcy. On July 31 Jenkins was appointed assignee, and a deed of assignment made to him. On the 18th day of June, 1878, Walker- sued out a writ of error from the Appellate Court to reverse the decree rendered in the Bauer case, and Jenkins was afterwards substituted in his place, with leave to prosecute the writ of error. While the writ of error was pending, Kinney, who had been brought in the foreclosure suit by publication, obtained from the court leave, under the statute, to come in and defend. Kinney filed an answer, in which he set up that he had purchased the premises, and was the owner in fee under the deeds from Walker, and that he was in possession. In November, 1880, Lcewenthal met Kinney at Cincinnati, and purchased his interest in the property for $20,000. Kinney at the same time executed a release of- all errors in the suit then pending in the Appellate Court, and stipulated that a decree might be entered in the circuit court in the Bauer case, which was still pending, confirming the decree which had originally been entered on the 25th day of April, 1878. Judgments were subsequently rendered in the Appellate and circuit courts in conformity to the stipulation.

If it be conceded that the two deeds made by Walker to Kinney were not intended by the parties to be absolute, but the conveyance was made merely to secure the payment of money due from Walker to Kinney, still, unless Lcewenthal had notice, before he purchased from Kinney, that the deeds were but mortgages, his purchase can not be defeated. The fact that the absolute title appeared to be in Kinney would justify any person in buying from him, and such a purchaser would be protected in his purchase, unless he had notice, before buying, that Kinney held'' merely as mortgagee.

It is first insisted that the deposition of S. J. Walker, which was taken in the Bauer case, was notice to Bauer,- Lcewenthal, Schcellkopf, and the bank, that the conveyance to Kinney was a mortgage. It does not appear that the parties had any actual knowledge of what Walker had sworn to in his deposition. But conceding that they were chargeable with notice of the contents of the deposition taken in a case wherein they were parties, we do not think. that the deposition of Walker .establishes the fact that the deeds made by him to Kinney were mortgages. The evidence relied upon was as follows:

Q. “Was not said conveyance made to Kinney free and clear from all incumbrances ?

A. “The deed was so made, they agreeing to allow me a liberal price towards my indebtedness if I would make the property clear. There was some sort of a statement given at the time, or shortly after, that as soon as I made it clear, they were to give up certain paper. I further state, that I stated to them that this property, instead of being bound for $150,000, there was an indebtedness on it claimed by the bank of $55,000, on this and other property. And I would further state, that the banks of Hoffman agreed, immediately after the panic, or directly after sale, knowing of it, of course, as the sale was published in the papers, to release this property on the payment of $30,000, which would have left me a credit with Kinney & Go., on account of my indebtedness, of some $100,000, or more. I further state, that I conveyed this property to' Mr. Kinney for the purpose of securing a settlement in ease I could relieve it, they, at the time of my conveyance, not paying me any money consideration whatever, the object being to secure a settlement with them, if possible, on the most favorable terms possible.”

This testimony falls far short of proving the deeds to be mortgages. It does not appear that there was any understanding or agreement that the property was to be, at any time or upon any terms or conditions, reconveyed to Walker, or that he had any right to redeem. On the other hand, it seems clear, from the first part of his evidence, that an absolute conveyance was made, and Kinney & Co. were to be the owners of the property, and that they agreed to allow Walker a liberal price for the property when he should clear it of the prior incumbrances. The fact that the amount Kinney was to-give Walker for the property was not then fixed, does not militate against this view. If, therefore, appellees knew of this evidence, the deposition contains nothing which should . prevent them from becoming purchasers from Kinney.

But it is said that in the proceedings in bankruptcy the lots in question were scheduled as a part of Walker’s assets, and as Loewenthal proved his debt in the bankrupt court, he is chargeable with notice of all that appears in the proceedings. There might be force in this argument if Loewenthal was claiming title under the bankrupt proceedings; but he does not claim under those proceedings, and the mere fact that he proved a claim against Walker’s estate, could not make him chargeable with notice of these jiroceedings. Loewenthal was as much a stranger to the schedule of assets belonging to Walker’s estate, as he would have been had he never proved any claim against the bankrupt.

It is next contended that the notice served on Rosenthal & Pence by Mr. Burgess, January 14, 1880, was notice to Lcewenthal that Kinney’s interest in the premises was but a mortgage. It is, perhaps, true that notice to an attorney will be notice to the client; but to make the notice obligatory the attorney must, at the time, be engaged as an attorney in reference to the matter embraced in the notice. In this case, when the notice was served on' Rosenthal & Pence they were not attorneys to negotiate a purchase of the equity of redemption of Kinney. They had never been employed for that purpose. Indeed, they had nothing to do with Kinney’s equity of redemption, and a notice to them was not binding on Lcewenthal.

But the contract under which the premises were leased February 15, 1880, is relied upon. All the parties interested in the property, met,—Rosenberg, who had the master’s deed, Lrewenthal, who represented Bauer, the bank and Schcellkopf, and Kinney, who had purchased the equity of redemption from Walker. These parties came together, and concluded that while the property was in litigation it would be better to have it docked and leased to some responsible parties, and consequently an agreement was made, which is set out in the record. It appears that during this meeting, Badger (who represented Jenkins) and Burgess were present, and the argument is, that the presence of Badger was enough to put Lcewenthal on inquiry. Jenkins did not execute the lease, and so far as is disclosed by the evidence Badger took no part in the negotiations. Neither he nor Burgess gave notice that Jenkins, assignee, claimed any interest- in the property, and we do not think their presence was enough to put Lcewenthal or any one else on inquiry.

It is also claimed that a bill filed by Jenkins, as provisional assignee, in the United States Court, proves notice to Lcewenthal. This bill was filed after a final decree was rendered in the circuit court in the Bauer case, which attempted to go over the same matters again. All the pleadings in the Bauer ease were set out. The bill was dismissed, and in what manner the filing of such a bill could be regarded as notice to Loewenthal that Kinney held under two certain deeds, merely as mortgagee, we are unable to perceive. Indeed, we find no evidence in the record which is sufficient to bring home notice to Loewenthal that Kinney held as mortgagee. On the contrary, from the admissions, declarations and acts of Walker, Jenkins and Kinney in regard to the ownership of the property, any reasonable man would be led to believe that the deeds from Walker to Kinney passed the absolute title. Why did Walker set up in his answer that he had conveyed the absolute title to Kinney, if such was not the fact? Why did Jenkins, the assignee of Walker, permit Kinney, without a word of dissent, to claim, mortgage and contract for the improvement and leasing of the property for a term of years, as the absolute owner, if he was but a mortgagee? Jenkins knew that Kinney claimed the absolute title, —that he mortgaged and leased the property as owner,—and yet not a word of dissent is heard until the sale is made to Loewenthal. From the manner in which this property was treated by Walker, Jenkins and Kinney, any person who had not actual notice to the contrary had a right to suppose that Kinney was the absolute owner, and is entitled to be protected under a deed obtained from him.

But, independent of this view, we are of opinion that the action brought by the assignee was barred by section 5057, Revised Statutes of the United States. This section of the statute provides: “No suit, either at law or in.equity, shall be maintainable in any cause between an assignee in bankruptcy and a person claiming an adverse interest touching any property or right of property transferable to or vested in such assignee, unless brought within two years from the time when the cause of action accrued for or against such assignee.” Jenkins was appointed assignee on the 31st day of July, 1878, but this action was not brought until May 27, 1881. Did Kinney claim an adverse interest in the property, or, in other words, did he claim an absolute title as against Walker P If he did, the assignee was bound to bring his action within two years. From an examination of the testimony we think it is apparent that Kinney claimed title to the property long before Walker was adjudged a bankrupt. Before Walker filed his petition in bankruptcy, Kinney filed a bill in equity, in the United States Court, against the International Bank, Walker and others, in which he alleged absolute ownership of the property. Walker, in his answer to the bill, admitted the title to be in Kinney. This bill was pending when Jenkins was appointed assignee, and he was chargeable with notice of any fact in regard to the property known to Walker. On the 1st day of March, 1878, Kinney mortgaged the property to Kyle & Dunham. This mortgage was recorded April 6, 1878. The mortgage contains a covenant that Kinney is the true and lawful owner of the premises. In his answer in the Bauer case, filed July 26, 1878, Kinney set up that he owned the lots in. fee. On the 19th day of June, 1878, Jenkins, as assignee, filed a bill in the United States Court, in which he set out the allegations in the Bauer bill, to the effect that he owned the premises, and he also set out Walker’s answer, admitting the same thing. This bill he signed, and of course knew its contents. These various acts claiming title to the property, which were known to Jenkins, required hiih, if he desired to contest Kinney’s title to the property, to bring his action within two years. It was not necessary that an adverse possession of the property should be established in Kinney,—it was enough that he claimed an adverse interest in the property, which was known to the assignee. (Bailey v. Glover, 21 Wall. 342.) The language of the statute is plain, and in terms declares that no suit shall be maintained between an assignee and a person claiming an adverse interest touching any property or right of property transferable to or vested in such assignee, unless brought within two years from the time the cause of action accrued. Here, at the time Jenkins was appointed assignee, he found on record two deed's conveying the property in fee to Kinney, and whenever the question of title arose he found him asserting title and Walker admitting it. It is true Badger testified that Kinney admitted to him, soon after Jenkins was appointed assignee, that he held as mortgagee; but this admission was not enough to overcome the various acts of ownership and claim of absolute title in Kinney, as established by the evidence. When Jenkins accepted the position of assignee, and found the property conveyed to Kinney by deeds absolute in terms, and found that Kinney had mortgaged the property as his own, and was asserting title to it in all respects as owner, if he desired to contest the title of Kinney the law required him to bring his action within two years. This he failed to do, and under the statute he was barred.

The judgment of the circuit court will be affirmed.

Judgment affirmed.